Correspondence from Ross to Ifill with Rangel v. Mattox Draft Pretrial Brief

    LAW OFFICES OF 

TEXAS RURAL LEGAL AID, INC. 
VOTING RIGHTS LITIGATION PROJECT 

201 NORTH ST. MARY'S SUITE 600 

SAN ANTONIO. TEXAS 78205 
TEL (512) 222-2478 

May 30, 1089 

Sherilyn Ifill 

NAACP Legal Defense Fund 

89 Hudson, 16th Floor 

New York, New York 10013 

Dear Ms. Ifill: 

Enclosed please find a copy of a draft of the pre-trial brief filed 

in Rangel, et al v. Mattox, et al., a case we tried on April 17th 

challenging the discriminatory impact of electing the 13th Court 

of Appeals in Texas from an enormous twenty county region. We were 

not able to quickly locate our final filed copy and we wanted to 

get this off to you. 

  

Please do not hesitate to contact us if you need anything further. 

Sincerely, 

“De 053 

Dianne Ross 

Asst. Director 

Voting Rights Litigation Project 

 



  

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF TEXAS 

BROWNSVILLE DIVISION 

RITA RANGEL 

and ESTER MUNGUIA 

Plaintiffs, 

v, Civil Action No.   

The HONORABLE JIM MATTOX, 

Attorney General of the 

State of Texas; JACK RAINS, 

Secretary of State of the 

State of Texas; BOB SLAGLE, 

Chairman, Democratic Party of 

the State of Texas; GEORGE 

STRAKE, Chairman, Republican 

Party of the State of Texas; 

JUAN MAGALLANES, Chairman, 

Cameron County Democratic 

Party; and FRANK MORRIS, 

Cameron County Republican 

Party 

Defendants. 

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Background 

According to the 1980 census, the Thirteenth Court of 

Appeals of the State of Texas has a geographic area of 18,063 

square miles and “a population of 1,169,551 persons, 56.63% of 

whom ‘are Mexican American and 3.36% are Black. YY The most 

  

The fact that the Mexican American population may be 

slightly in the "numerical: majority” does not foreclose 

consideration of the Constitutional claims of the Mexican 
American population. In Monrce v, City of Woodville, 819 Fr. 

24. 5074 (5th Cir. 1987), the Fifth Circuit found a single 

member district case Jjusticiable where Blacks accounted for 

in excess of 60% of the city population and less than half of 

  

  

the registered voters. See also the fact situation in the 

El Paso County portion. of Graves v. Barnes, ‘which was 

affirmed sub nom White v. Register, 412 U.S. 155 (1972). On 
  

1 

 



  

  

remand from the U.S. Supreme Court, the three judge district 

court sitting in the Western District of Texas considered the 

El Paso fact situation where with almost a 60% minority 

population (57% Mexican American and 3% Black). Graves Vv. 

Barnes, 378 ¥F. supp. 640, 655 (W.D. Tex. 1974). Accord see 
Zimmer wv. McKeithen, 485'F.. 20: 1297 (5th Cir, 1973) which is 

the leading case in the Fifth Circuit interpreting White wv. 

Regester. In Zimmer, blacks represented 58.7% of the 
population. In Sierra v. El Paso. 1.8.D., 591 °F. Supp. 802, 

804 (W.D. Tex. 1984) the Court found the at-large elections 

to be unconstitutional in. spite of the fact. that they 
comprised over half of the population of the district and 80% 
of the students because Mexican Americans "constituted only 
43% of the registered voters within the school district." 

See also Gingles v. Edmisten, 590 P. Supp. 345, 358 n. 21 
(E.D. North Carolina 1984) (three-judge) affirmed in relevant 

part ‘sub nom Thornburg Vv.  Gingles, 106 S. Ct.” 2572 (1986) 
where the District Court found that "the extant 55.1% black 

population majority does not constitute an effective voting 

majority..." U.S, v, Marengo County, 731 F. '2d..1546,: 1550 
(11th Cir. 1884) Blacks 55.2% "of: population and 44% of 

registered voters; N.A.A.C.P. v. Gadsden County, 691 F. 2d 

978, 980 (5th Cir. 1982) "59 percent of the population rand 
49.3 percent of the registered voters were black"; Washington 

v. Tensas Parish School Board, 819 F. 24d 609, 610-611 (5th 

Cir. 1987). (1980 population 56.7% Black and 1980 voting age 

population 50.5% Black. 1986 population 54% Black and 1986 
registration 48.6% Black); 

The Department of Justice and the Courts usually rely 

upon a rule of thumb that a minority population of less than 

65% 1s not presumed to constitute per se access to the 

process. ‘See Mlississippl v. United States, 490 ‘F. Supp 569 
(D.D.C. 1979) aff'd 444.0U.8. 1050 (1980): Rybicki wv. State 
Bd, of Blections, -547 F. Supp. .-1147,.:1149 n.- 4: (N.D.  I11. 

1983) "The 65% figure is a guideline which has been used by 

the Department of Justice, reapportionment experts and the 

courts as a measure of the minority population in a district 

needed for minority voters to have a meaningful opportunity 

to elect a candidate of their choice. [citations omitted] 

The 65% guideline, which the Supreme Court characterized as 
rreasonable’ “in U.J.Q. vv. Carey, 430. 0.5. 144," 164 (1977) 

takes into account the younger median population age and the 

lower voter registration and turnout of minority citizens. 

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

2 

 



  

recent information available from the Defendant, Texas Secretary 

of State indicates that as of 1988 there were 584,494 registered 

voters in the counties which comprise the Thirteenth Court of 

Appeals. Of these, Mexican Americans comprised only 45.89%. The 

Population and registered voter breakdown in the District is as 

    

Follows: 

All Counties in Thirteenth 

Judicial District 

Total Reg. MA MA Req. Blk. Area 

County Population Voters Pop. Voters Pop. Sg/Mi. 

Aransas 14,620 8,077 2,722 022 277 275 

Bee 26,030 14,329 11,914 6,335 673 842 

Calhoun 19,574 10,689 6,651 2,180 629 529 

Dewitt 18,803 8,876 4,386, 1,167 2,054 910 

Goliad 5,193 3,711 1,849 1,101 475 871 

Gonzales 16,883 9,191 4,863 2,027 1,962 1,056 

Jackson 13,352 7,232 2,494 946 1,376 850 

La Vaca 19,004 10,293 1,316 395 1,447 975 

Live Oak 9,606 6,531 3,077 1,820 5 1,055 

Matagorda 37,828 17,584 7,965 2,221 5,507 %,157 

Nueces 268,215 140,161 131,247 57,454 12,338 841 

Refugio 9,289 5,572 3,556 1,700 1377 274 

San 

Patricio 58,013 31.118 26,872 12,799 866 685 

Victoria 68,807 36,672 20,944 8,569 4,710 892 

  

See also Castenada v. Partida, 524 F. 2d 481 (5th Cir. 1975)   

aff'd ( ) where the Court considered a 

challenge to the Grand Jury selection process in Hidalgo 

County. The state had defended on the theory that there 

could be no discrimination because Mexican Americans were 

ngs “of the 'population..., the majority of the. voting 
population..., the majority of the elected officials..., and 

the majority of the [district] judges and Jury 
commissioners..." Id. 524 °F. 2d .at 484 n :8. The Fifth 

Circuit held, however, "The fact of governing majority status 

may mollify the prima facie case, but it does not nullify it. 

This may be done only by proof to explain the disparity." 
  

3 

 



  

Wharton 

Hidalgo 

Cameron 

Willacy 

Kenedy 

Kleberg 

Total 1, 

40,242 

283,229 

209,727 

17,495 

543 

33,358 

169,551 

18,439 
138,876 
93,560 
9,108 

316 
14,159 

584,494 

8,753 

230,212 

161, 654 

14,049 

450 

17,408 

662,359 

(56.6%) 

2,070 

97,738 

55,584 

6,598 

218 

6,321 

268,233 

(45.9%) 

6,672 
544 
722 

92 
0 

1,291 
42,417 
(3.63%) 

1,076 

1,543 

896 

591 

1,394 

851 

18,0863 

Although the Counties South of Nueces County comprise almost 

30% 

Court of Appeals, 

to serve on the Court. 

of the area and 47% of the population of the Thirteenth 

only one person from that area has been elected 

It is significant that these counties are 

three fourths Mexican American in terms of population and almost 

two thirds Mexican 

Stated otherwise, 

American 

almost two 

in terms 

thirds 

of registered voters. 

of the Mexican American 

Population and over 62% of the Mexican American registered voters 

of the Thirteenth Judicial District live South of Nueces County: 

County 

Hidalgo 

Cameron 

Willacy 

Kenedy 

Kleberg 

Total 

Counties in Thirteenth 

Judicial District 

South of Nueces County 

  

Total Reg. 

Population Voters 

283,229 138,876 

209,727 93,560 

17,495 9,108 

543 316 

23,358 14,159 

544,352 256,019 

MA 

Pop. 

230,212 

161, 654 
14,049 

450 
17,408 

423,773 

  

MA Reg. Blk. Area 

Voters Pop. Sg/Mi. 

97,738 544 1,543 

55,584 122 896 
6,598 92 591 

218 021,394 
6,321 1,291 851 

166,459 2,649 5,275 

 



  

County 

Thirteenth Judicial District 

Nueces County and North 

  
Aransas 

Bee 

Clahoun 

Dewitt 

Goliad 

Gonzales 

Jackson 

La Vaca 

Live Oak 

Matagorda 

Nueces 

Refugio 

San 

Patricio 

Victoria 

Wharton 

Total 

County 
  

Total 

South 

%$ South 

$ total 

  

Total Reg. MA MA Reg. 

Population Voters Pop. voters 

14,620 8,077 2,722 922 

26,030 14,329 11,914 6,335 

19,574 10,689 65,651 2,180 

18,803 8,876 4,360, 1,167 

5,193 3,711 1,849 1,101 

16,883 9,191 4,863 2,027 

13,352 $y 232 2,494 946 

19,004 10,293 1,316 395 

2,606 6,531 3,077 1,820 

37,828 17,584 7,965 2,221 

263,215 140,161 131,247 57,454 

9,289 5,572 3,556 3,700 

58,013 31,118 26,872 12,799 

68,807 36,672 20,944 8,569 

40,242 18,439 8,753 2,070 

625,199 328,475 238,586 101,774 

Thirteenth Judicial District 

Nueces County and North 

Compared with Counties 

South of Nueces County 

Total Reg. MA MA Reg. 

Population Voters Pop. voters 

1,169,551 584,494 662,359 268,233 

544,352 256,019 423,773 166,459 

(77.8%) (65.0%) 

(46.5%) (43.8%) (64.0%) (62.1%) 

625,199 328,475 238,586 101,774 

(38.2%) (31.0%) 

(53.5%) (56.2%) (36.0%) (37.9%) 

  

Blk. Area 

Pop. Sg/Mi. 
277 275 

573 842 

629 529 
2,054 910 

475 871 

1,962 1,056 

1,376 850 
1,447 975 

5 1,055 

54507 1,157 

12,338 841 
177 774 

866 685 
4,710 892 
6,672 1,076 

39,768 412,788 

Blk: Area 

Pop. Sg/Mi. 

42,417 18,063 

2,649 5,275 
(0.5%) 

(6.23) (29.2%) 
39,768 12,788 
(6.3%) 

(93.8%). (70.8%) 

 



  

As described in greater detail later at pages , Studies 

done by both federal and state agencies indicate that Anglo 

residents of the county have significantly higher incomes and 

economic security, much lower unemployment rates, remarkably 

higher educational levels, 

Although Mexican Americans comprise in excess of 56% of the 

population in the Thirteenth Court of Appeals, they have always 

been significantly under represented among the judges. Presently 

only one of the Judges sitting on the Thirteenth Court of Appeals 

is a Mexican American. The first Mexican American was not a 

member of the Court of Appeals until the appointment of Justice 

Gonzales to the bench by Governor Clements in September of 1981. 

He ran for election in 1982 without opposition. In October of 

1984, Justice Gonzales was appointed to the Texas Supreme Court 

by Governor White. A month later, Governor White appointed 

Justice Benavides to replace Justice Gonzales. Justice Benavides 

ran unopposed for election in 1986. 

No person has ever been a successful candidate from Cameron 

County, in spite of the fact that the population of Cameron 

County is more than 20% of the Thirteenth Court of Appeals and 

therefore would more than make up one single member district. 

Only one candidate has ever been elected from Hidalgo County. 

 



  

This, in spite of the fact that together Cameron and Hidalgo 

Counties make up more than 42% of the Thirteenth Court of Appeals 

and are respectively 77.0% and 81.2% Mexican American. Together, 

Cameron and Hidalgo Counties include more than 59% of the Mexican 

Americans living in the Thirteenth Judicial District. 

A study done by the Plaintiffs and described in detail at 

pages indicates that the average level of under representation 

of Mexican Americans over the last years has been in excess of 

46%. This level of under representation is particularly severe 

when compared with studies which have been done on at-large 

election systems nationwide. For example, a recent nationwide 

survey of election schemes cited by the Supreme Court in 

Thornburg wv. Gingles, U.S. 2-106 S.Ctiy 2765" n.- 13. {198. ) 
  

found that at-large elections tend to under represent Mexican 

Americans by slightly over 9%. This and other comparisons are 

discussed later at pages 

In this suit, Plaintiffs have claimed that the at-large 

election system used to elect the Judges in the Thirteenth 

Appellate dilutes the effectiveness of their votes making it more 

difficult for them to participate in the political process and to 

elect representatives of their own choice in violation of Section 

2 Of the Voting Rights Act 42 U.S.C. Sec. 1973 et seq. Similar 

suits have brought against other at-large judicial elections as 

 



  

well as against school districts, City Councils, and state 

legislative districts. 2/ Here, as elsewhere, Plaintiffs argue 

  

?2/ See e.g. Caldron v. McGee, W-74-CA-2 (W.D. Tex. Feb. 
26, 1976) "The at-large election method, overlaid as it is, 

upon the historic, cultural, economic and political realities 

of the black and Mexican American communities in Waco, 

results in a marked dilution of black and Mexican American 
communities in Waco, results 1n a marked dilution of black 

and Mexican American votes... [and] the lack of equal access 

by blacks and Mexican Americans to the political processes 

leading to the election of school board trustees is an 

empirically obvious political reality. cited in.:Caldron' v. 
McGee, 584 F. 2d 66, 68 (5th Cir. 1978); ‘Campos v. City of 

Baytown, 849 .F. 2d 1240. (5th Clr. 1988) (City of Baytown, 
Harris County, single member district case) Binkorhoff wv. 
City of Alvin, G 84-436 (E.D. Tex. Galveston Div. June 26, 

1985); + Moore 'v, City of. Beaumont, B-83-341 (E.D,) Tey. 

Beaumont "Div. Dec. '13,: 1983); Davila v. City of Brownfield, 

CA-5-35-141 | (N.D." Tex. Lubbock Diy. ) {City of 
Brownfield, Terry County, single member district case); LULAC 

Vv, Clty of Big. Springs, 1-82~-100W (N.D. Tex. Sept. 12, 1982) 

(City of Big Spring, Howard County, single member district 
case); LULAC v, Big Spring I1.S8.D., CA-32-100. (W.D.. Tex. 
Abeline Div. 1982) (Big: Spring  1.S.D., Howard County, 
single member district case) Kiles v. City of Center, Ty~- 

80-191: (E.D. Tex. Tyler Div. July 1, 1983): Alonzo v. Jones, 
C-81-227 (S.D. Tex. Feb. 23, 1883) "(City of Corpus Christi 
single member district case); LULAC v. Corpus Christi I.S.D., 
C-74-CA%5 (S.D. Tex. Corpus Div. Jan. 14, 1081) (At-large 

elections in Corpus Christi 1.8.D. found to wiolate Section 2 
of Voting Rights Act); Mata" v. Beed, V-~82-16 (S5.D. Tex. 
Victoria Div, June 16, 1982) (litigation alleging a violation 

of Section 2 of Voting Rights Act settled by replacing at- 

large elections with single member districts for the Victoria 

City Council) Galvan v. City of Port Lavaca, V-83-13 «(8.D. 

Tex. "Victoria Div. Nov... 8, 1983) (successful litigation 
alleging at-large elections in Port Lavaca, Calhoun County 

dilute Mexican American voting strength settled by adoption 

  

  

  
  

  

  

  

  

  

  

  

  

  

  

  

  

of single member districts); Rodriguez v. Calhoun I.S8.D., V- 
83~ {(S.D. Tex. Victoria Div. 1983) (Calhoun I.8.D., 

Calhoun County, single member district case) LULAC wv.   
Midland I.S.D., 64% 7. Supp. 596 (W.D. Tex. 1986) aff'd 812   

8 

 



  

  

P, 2d 1494 {5th Cir. 1987) (Midland I1.S.D., Midland County, 

single member district case) ; Gonzales v. Beeville I.S.D., 

C-82-130 «S.D. Tex, Corpus Div. July 17, 1987) (litigation 
alleging a violation of Section 2 of Voting Rights Act 
settled by replacing at-large elections with single member 

districts in the Beeville I.5.D.); Ruiz v. Wheeler, C.A. V- 

83-17. (S.D. Tex Victoria Div.) (sult under Section 5 of the 

Voting Rights Act to compel the City of Cuero to submit 
Charter Revisions which had been made in the city election 

procedures in 1977 and also a Section 2 attack on the at- 

large elections for the Cuero City Council); Lipscomb wv. 

Wise, 437 U.S. 535 (1978) [City of Dallas); G.H.C.C. v. Mann, 

CA. No. : 77-208 (5th Cir. Dec. 26, 1979) [City of Houston): 
Robinson v. Clty of Jefferson, M-31-107 (2.D. Tex. April 26, 

1983); Salinas v. City of Littlefield, CA 85-260 (N.D. Tex. 
Lubbock Div. Jan 23 1987); Canc v. Rirksey, A-77-133 (W.D. 

Tex. Austin. Div. Oct. 8, : 1982): (City “of Lockhart single 
member d strict case); Jones v. City of Lubbock, 727 F. 24 

364 (5th Cir. 1984) (City of Lubbock, Lubbock County single 
member district case); David v. Garison, 553 F. 2d4:923 (5th 
Cir. 19770 [City of l1ufkinl); Wilson v. City of Marshall, M- 
83-137 {(E.D. Tex. Marshall Div. May 8, 1985); Torres v. City 

of New Braunfels, S.A. 83-643 (W.D. Tex. San Antonio Div. 

); Citizens for Better Representation in Pleasanton wv. 
City of Pleasanton, SA-84-416 (W.D. Tex. San Antonio Div. 

Ys City of Port Arthur v. U.S., 517 ¥. Supp. .987 (D.D.C. 

1981) 103 'sS. Ct. 530 74:1. ‘Ed. 2d 334.:(1982) (City of Port 
Arthur, Jefferson County, single member district case); 

Martinez v, Becker, SA-73-315 (W.D. Tex. San Antonio Div.) 
[case dismissed as moot after districts negotiated between 

the parties were adopted by the city]; Brewer v. City of 

S.llsbee, B-34-662 (B.D. Tex. Beaumont Div. Oct. 8, 1986); 

Pena v. City of snyder, CA-5-85-285 (N.D. Tex. Lubbock Div. 

1986) (City of Snyder, Scurry County single member 

district case); Pena v. Snyder 1.S5.D., CA-85-359 (N.D. Tex. 
Lubbock Div. 1985) (Snyder 1.S8.D., Scurry County single 

member district case); Political Civic Voters Association v. 

Clty of Terrell, 565. F. Supp. 338 (N.D. Tex. 1983); U.S. Vv. 

Ciry Commission Of Texas City, G-77-78 (S3.D. Tex. Galveston 
Div, Feb. 21, 1918); Square v. Halbert, Ty-75-74 (E.D. Tex. 
Tyler Div. April 13, 1976) [City of Tyler}; Mata v. Reed, V- 
82-16 (S.D. Tex. Victoria Div. June 16, 1982) (City of 

Victoria,” Victoria County, single member district case); 

  

  

  

    

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

    

  

  

  

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Vasquez Vv, City Of Wichica Falls, CA 7-84-133 (N.D. Tex. July 
29, 1985); See also Graves Vv. Barnes (Graves II) (three- 

judge) 378 F. Supp. 640, {(W.D. Tex. 1975) vac. as moot 422 
U.S. 935 (at-large elections of state representatives in 
Bexar, Dallas, Nueces, El Paso, Tarrant, Travis, Jefferson, 

McClennan, and Lubbock Counties held unconstitutional); 

Garcia v. Guerra, .744 TF. . 24. 1159 (5th Cir. '1984),. cert. 

denied "471 U.S. 1065 (1985) (suit to prevent change in 
election dates by the Progresso and Weslaco I.S.Ds. in 

Hidlago County which would have disadvantaged migrant 

voters); Sanchez v. McDaniel, 615 F. 2d 1023 (5th Cir. 1980) 

aff'd "452. U.85. 130° (1981) (suit which invalidated the 

apportionment of the Kleberg County Commissioners’ Court 

because it diluted Mexican American voting strength and then 

amended to compel the county to comply with Section 5 of the 

Voting Rights Act); Aguero v. City of Herford, CA 2-85-186 

{(N.D;, Tex. Amarillo Div. March 12, 1986) (City of  Herford, 

Deaf Smith County, single member district case); Aguero v. 

Lubbock 1.S.D., CA-85-06]1 (N.D. Tex. Lubbock Div. 1984) 

(City of Lubbock, Lubbock County, single member district 

case); Aguerre v, Abilene l1.S85.D., CA-1-85-930W (N.D. Tex. 

  

  

  

  

  

  

  

  

  

  

  

Abilene Div. 1985) (Abilene I.S.D., Taylor County, single 

member district case); Chacon v. Ysleta I.S.D., EP-86-CA-303 
(W.D. Tex. Fl Paso Div. 1986) {(¥sleta, El Paso County, 

I.5.D. case); Gonzalez wv, Taylor l1.8.D., A-86-Ch-624 (W.D. 

Tex. Austin Div. ) {Taylor l.S.D., Williamson 

County, single member district case); LULAC v. Seguin I.S.D., 

SA-83~-CA-222 M.D. Tex. "S.A. Div. 1983). (Seguin 
I.8.0., Guadalupe County single member district case); 
Martinez v. Sonora, CA-83-0019 (N.D. Tex. San Angelo Div. 

1983) (City of Sonora, Sutton County single member district 
case); Morales v, Floydada 1.8.D.,: CA-5-84~271  <(N.D. Tex. 

  

  

  

Lubbock Div. 1984) (Floydada 1I.S.D., Floyd County, single 

member district case); Olivares v. City of Taylor, A-84-CA-44 

(W.D. Tex. Austin Div. 1987) (City ‘of Taylor, Williamson 

County single member district case); Posada v. Lamb County, 
716 FF. 2d 1066 (5th Cir. 1983) (Lamb County reapportionment 

case); Rendon wv. levelland I.5.D., CA-5-85-25 (N.D> Tex. 

Abilene Div. 1983) (levelland 1.S.D.,° Hockley: County, 

single member district case); Robinson v. City of Jefferson, 

M=81-107 (FE.D. Tex. April. 26, 1883) (City Council single 
member district case against City of Jefferson, Marion 

County); Robinson v. Commissioners Court of Anderson County, 

  

  

  

  

10 

 



  

that at large elections provide "minorities with the least 

opportunity to elect representatives of their choice." Rybicki 

Vv. State Board of Elections, 574 F. Supp... 1147, 1153 (N.D. 111. 
  

1983). 

There are basically two causes of action. The first is 

based upon sO called Section 2 of the Voting Rights Act (42 

U.S.C. "Sec. 1993). Under this cause, the Plaintiffs have the 

burden of proving that the at-large structure has the effect of 

making it more difficult. for Mexican Americans to ‘elect 

representatives of their choice. The second cause of action is 

what 1s referred to as the Constitutional cause and Plaintiffs 

have the burden of proving that the adoption or the maintenance 

of the at-large system is at least in part related to intentional 

discrimination against Mexican Americans. Although the factual 

proofs in each cause of action are identical, Plaintiffs may 

prevail if they can show either effect or intent. No Court has 

ever made the: 

suggestion that the remedy for an unconstitutional 

intentional dilution should be any more favorable than 

the remedy for a Section 2 "result" violation. 

Gingles v. Edmisten, 590 F. Supp. 345,"352 (E.D. North Carolina 

1984) (three-judge) affirmed in relevant part sub nom Thornburg 

v. Gingles, 106 8. Ct, 2572 (1986). 

  

  

  

  

505 F. 2d 674 (5th Cir. 1974) (Reapportionment case against 

Anderson County Commissioners’ Court); 

11 

 



  

If the Court finds for the Plaintiffs under the statutory 

claim under the Section 2 results test, then the Court should 

rest its decision on the statute alone and thereby avoid 

addressing the still subsisting constitutional claim seeking the 

same relief. see e.g. Ashwander v. T.V.A., 297 U.S. .288, “347 
  

(1936) (Brandise, J.," concurring), These causes of action will 

be discussed in detail below. 

If the Court finds that the at-large system is either 

illegal or unconstitutional, then single member districts are the 

  

preferred remedy. East Carroll Parish School Board v. Marshall, 

424 U.S, "636, 639 (1976). Plaintiffs have proposed several 

possible remedies in the form of plans of apportionment. These 

are discussed in detail later at pages 

1. A violation of Section 2 

Plaintiffs in a case such as this will be successful under 

Section 2 of the Voting Rights Act if they are able to show that 

the at-large system "results" in making it more difficult for 

minority group members to elect representatives of their choice. 

Thornburg Vv. Gingles,: 478 U.8.  . , 106 S. Cr. 2782, 27163 ff 
  

(1986) Stated another way, Plaintiffs win if they are able to 

show that, irrespective of intent, and when assessed in "the 

totality of circumstances" the "result" of at-large elections is 

"to cancel out or minimize the voting strength of racial groups." 
  

12 

 



  

[emphasis added] White v. Regester, 412 U.S. 755, 765 (1972),   

Thornburg wv. Gingles, (supra). This burden was specifically 
  

simplified and liberalized by Congress in 1982: 

Thirty pages of legislative history make eminently clear 

that Congress did." not want the high burden for 

discriminatory intent to govern violations under Section 2. 

[footnote omitted] 

Dillard v. Crenshaw County, Ala, 831 F. 24 246, 249 (11th:Cir. 

1987). 
  

The Senate Judiciary Report explains that: 

The amendment to the language of Section 2 is 

designed to make clear that plaintiffs need not prove a 

discriminatory purpose in the adoption or maintenance 

of the challenged system or practice in order to 

establish a violation. Plaintiffs must either prove 

intent, or alternatively, must show that the challenged 

system, in the context of all the circumstances in the 

jurisdiction in question, results in minorities being 

denied equal access to the political process. 

S.Rep. No. 97-417 at 205 

[TIThe amended [Section 2] liberalized the statutory 

vote dilution claim in two fundamental ways. It 

removed any necessity that discriminatory intent be 

proven, leaving only the necessity to show dilutive 

effect traceable to the challenged electoral mechanism. 

Gingles v. Edmisten, 590 F. Supp. 345, 352 (E.D. North Carolina 

1984) affirmed in relevant part sub nom Thornburg v. Gingles, 

1066'S. Ct. 2572 (1986), 

  

  

In this regard it has been said that "Amended Section 2 

embodies a congressional purpose to remove all vestiges of 

minority race vote dilution perpetuated on or after the 

amendment’ s effective date by state or local electoral 

mechanisms. ™. Id. 590 F. Supp. aL 3535, 

13 

 



  

2. A History of The Theory 

Plaintiffs argue here that at-large elections dilute and 

minimize the effectiveness Of their vote. The first 

reapportionment cases were brought on the basis of dilution 

because of population inequality. That is persons living in over 

populated districts had the effect of their vote diluted. This 

resulted in what is sometimes referred to as "one person one 

vote” Reynolds v. Simms, 377:-U.5. 533:(1954). %/   

In 1973 the Supreme Court considered the tendency for at- 

large elections to under represent minority groups. This 

  

3/ The first "one person one vote" cases involved 
single member Congressional and state legislative districts. 

In general, the Supreme Court has held that in Congressional 

districts there could only be de minimis population deviation 
among the various districts. See generally White wv. 

Regester, 412. 0.8. 755 (1973) For all other electoral 

levels, the Court developed a rule of thumb that the 

population deviation could range up to 9.9% without a per se 
violation of the Fourteenth Amendment. Id. While it has not 
always been entirely clear in the opinions, the distinction 

between Federal on the one hand and state and local elections 

on the other seems to arise from the decisions which indicate 
that A the Equal Protection considerations of the Fifth 

Amendment (which applies to Federal election) has less play 

in the 'joints than the Equal Protection .clause of the 

Fourteenth Amendment. 

  

  

14 

 



  

presented the Equal Protection question in a slightly different 

context which is sometimes referred to as "minority vote 

dilution." The Fifth Circuit set the two areas in context when 

it observed: 

Inherent in the concept of fair representation are two 

propositions: first, that in apportionment schemes, 

one man’s vote should equal another man’s vote as 

nearly as practicable [footnotes omitted]; and second, 

that assuming substantial equality, the schemes must 

not operate to minimize or cancel out the voting 

strengths of racial elements of the voting population. 

Zimmer v. McKeithen, 485 F 2d 1297, 1303 (5th Cir. 1973) 
  

While the concept of minority vote dilution is not easy to 

put in a nutshell, it is founded upon the theory that "the right 

to vote may be denied by dilution or debasement Just as 

effectively as wholly prohibiting the franchise." City of Porc 
  

Arthur v. U.83., 103 8. Cr. 530, .'534, 74 1, Ed. 2d 334 (1982). 
  

3. The Gingles Analysis 

A Simplified Burden of Proof 

In what is now the leading case in the area, the Supreme 

Court set out a simple three part test to determine if an at- 

large election system violates Section 2 of the Voting Rights 

Act . Thornburg v. Gilngles, 478 U.S. 306 S.Ct. 2752 (1986). 
  

A: The First Gingles Inquiry 
  

First the minority group must demonstrate that it is 

15 

 



  

sufficiently large and geographically compact to 

constitute a majority in a single member district. 

106 S.Ct. at 2766 

Obviously the Mexican American community in the Thirteenth 

Court of Appeals is able to meet this test. The Mexican American 

population of the Thirteenth Appellate District is concentrated 

in the counties south of Nueces County as well as in the so 

called "corridor" of Corpus Christi see discussion in Cisneros v.   

Corpus Christi 1.85.D.,   

According to the 1980 census, the counties south of Nueces County 

represented 43.8% of the population in the entire district. 

Mexican Americans accounted for almost 78% of the population of 

these southern counties and 65% of the persons registered to 

vote. According to the most recent population growth projections 

from the U.S. Census, the southern counties appear now to 

comprise half of the population of the Thirteenth Judicial 

District. Thus it is clear that Mexican Americans would comprise 

overwhelming electoral majorities in the three districts which 

could be drawn in the southern counties. 

Thirteenth Judicial District 

Nueces County and North 

Compared with Counties 

South of Nueces County 

Total Reg. MA MA Reg. Blk. Area 

County Population Voters Pop. Voters Pop. Sg/Mi. 
  

    

Total 1,169,551 584,494 662,359 268,233 42,417 18,063 

16 

 



  

South 544,352 256,019 423,773 166,459 2,649 45,275 
$ South (77.8%) (65.0%) (0.5%) 
$ total (46.5%) (43.8%) (64.0%) (62.1%) (6.2%) (29.2%) 

North 625,199 328,475 +238,586 101,774: 39,768 ‘12,6738 
$ North (38.2%) (31.0%). (6.3%) 
$ Total (53.5%) (56.2%) (36.0%) (37.92). (93.8%) (70.8%) 

In addition, the Mexican American population of Nueces 

County is concentrated in the "corridor" area of Corpus Christi. 

This concentration is sufficient to likely produce yet another 

district in which Mexican Americans would predominate. 

Another vantage of this is Cameron and Hidalgo Counties each 

contain more than one sixth of the population of the Thirteenth 

Judicial District %/ (1,169,551 divided by 6 equals 194,925) and 

thus would each be entitled to a district in a fairly drawn plan 

of apportionment. 

The plans of apportionment which the plaintiffs will offer 

as evidence in this case indicate that at least three and 

probably four of the six districts would be dominated by Mexican 

Americans. See generally Plaintiffs’ Exhibit 

  

*/ The 1980 census of population figures and 1987 voter 
registration breakdowns for Cameron and Hidalgo Counties are 
as follows: 

  
    

Total Mex—-Am Total Mex-Am 

County Population Population (3) Voters Voters (%) 
Hidalgo 283,229 230,212 81.3% 138,196 97,738 
70.7% 

Cameron 209,127 161,654 77.1% 93,560 55,584 
59.4% 

17 

 



  

B: The Second Gingles Inquiry 
  

Second, the minority community must show that it is 

politically cohesive. 

(Id.) 

The analysis of the electoral evidence discussed later 

indicates a very high degree of racial polarization on the part 

of Mexican Americans. That 1s to say a Mexican American 

candidate running against an Anglo opponent always receives the 

vast majority of the Mexican American vote while only a small 

portion of the Anglo vote. This phenomenon is sometimes referred 

to as "block voting." It has been defined by the Supreme Court 

in Gingles which has recently been interpreted by the Fifth 

Circuit in Citizens for a Better Gretna v. City of Gretna, Lla., 
  

834 FF. Supp. 496 (Fifth-Cir. 1987). In Gretna, the Plaintiffs’ 

expert had concluded.that one of the Black candidates, had 

received from 60-65% of the Black vote while the Defendants’ 

expert had computed that he had received only 49% of the Black 

vote. The Fifth Circuit dismissed this as quibbling and found 

that under either case analysis, there was legally significant 

block voting: 

According to the Supreme Court analysis in Gingles, 

bloc voting can be proved in part by showing that a 

"significant number of minority group members usually 

vote for the same candidate..." Gingles, (supra) 106 S. 

Ct. at 2769. [footnote omitted] Both appellant’s and 

appellee’s analysis reveal a "significant number of 

blacks voting for Jones. This qualifies Jones as a 

18 

 



  

Black preferred candidate. 

834 F. 2d. at 602. 

Another demonstration of the cohesiveness of the Mexican 

American population in the Judicial District is obvious from the 

results of elections which have been held after reapportionments 

of County Commissioners’ districts and City Councils in the area. 

Plaintiffs’ Exhibit is 

C: The Third Gingles Inquiry 
  

Third, the minority candidate must be able to 

demonstrate that the White majority votes sufficiently 

as a block to enable it--in the absence of special 

circumstances, such as the minority candidate running 

unopposed...to usually defeat the minority’s preferred 

candidate. 

Thornburg. v., Gingles, (supra) at 106 S. Ct. 2767 
  

This is the contrapositive of the second requirement. 

Although minority voters stick together, so do the Anglos. The 

facts indicate that this is exactly the case here. Plaintiffs 

proof described in greater detail at pages ff indicates that 

19 

 



  

An Analysis of Plaintiffs’ Evidence 

The Supreme Court has said: 

The "right" question, as the [Senate] Report emphasizes 

repeatedly, is whether "as a result of the challenged 

practice or structure plaintiffs do not have an equal 

opportunity to participate in the political processes 

and to elect representatives of their choice." 

[Footnote omitted]  S.Rep. at . 28, U.S. Code Cong. & 

Admin. News 1982, p.206. 

In order to answer this question, a court must 

assess the impact of the contested structure or 

practice on minority electoral opportunities "on the 

basis of objective factors." lId., at 27 U.S. Code Cong. 
& Admin. News 1982 p. 25. 

Thornburg v. Gingles, (supra) 106 S.Ct. at 2763. 
  

The Senate Report, considering the adoption of Section 2 of 

the Voting Rights Act, sets out several areas of inquiry to be 

used in answering the "right question" in Section 2 cases. LULAC   

Vv. Midland t.5.D.,. 812 F 2d 1494,. 1497 «(5th Cir. .1987). These 
  

include the history of official discrimination in the state and 

the jurisdiction; the existence of racially polarized voting; the 

effects of other voting procedures which tend to enhance the 

opportunity for discrimination against the minority group; the 

current effects of past discrimination; the exclusion of members 

of the minority group from the candidate slating process; and the 

20 

 



  

extent to which minority candidates have been successful in being 

elected. Thornburg Vv. Gingles, (supra) 106 S. Ct. at 2764. 
  

However, the Senate Committee was careful to stress that: 

[Tlhere is no requirement that any particular number of 

factors be proved, or that the majority of them point 

in one way or the other." S.Rep. at 29, U.S. Code Cong. 

& Admin. News 1982 p 207. Rather the Committee 

determined that "the question of whether the political 

processes are equally open depends upon a searching 

practical evaluation of the past and present 

reality.’ 1d. at 30, U.8. Code Cong. & Admin. News 

1982 p 208. (footnote omitted), and on a "functional" 

view of the political process. Id. at. 30, 'n. 120,:0.8. 

Code Cong. & Admin News 1982, p 208. 

Thornburg v. Gingles, (supra) 106 S. Ct. at 2764. 
  

The Senate factors were recently framed by the Fifth Circuit 

in LULAC Vv, Midland 1.S.D, 812 F 2d 1494, 1497-98 (5th Cir. 
  

1987) 

1. the extent of any. official history: of 

discrimination in the state or political subdivision 

that touched the right of the members of the minority 

group to regester, to vote, or to otherwise participate 
in the democratic process. 

2. the extent to which voting in the state or 

political subdivision is racially polarized. 

3. the extent to which the state or political 

subdivision has used unusually large districts, 

majority vote requirements, anti-single shot 

provisions, or other voting practices or procedures 

that may enhance the opportunity for discrimination 

against the minority group. 

4, if there is a candidate slating process, 

whether the members of the minority group have been 

denied access to that process. 

21 

 



  

9 the extent to which the members of the 

minority group bear the effects of discrimination in 

such areas as education, employment and health which 

hinders their ability to participate effectively in the 

political process. 

6. whether political campaigns have been 

characterized by overt or subtle racial appeals. 

7. the extent to which the minority group have 

been elected to public office in the jurisdiction. 

We will consider each of these elements and their application 

to this case. 

1. the extent of any official history of discrimination in 

the state or political subdivision that touched the right of the 

members of the minority group to regester, to vote, or to 

otherwise participate in the democratic process. 

The Counties comprising the Thirteenth Court of Appeals have 

both shared and actively participated in the state’s history of 

discrimination against Blacks and Mexican Americans. °,/ see 

  

°/ For example these historic problems have included the 
white primary Smith v, Allwright, 321 U.S. 649; the poll tax 

United States v. Texas, :252 PF. Supp. 234 (W.D.Tex. 1966) 

aff'd 384 U.S. 155 (1966); ‘excessive "restrictions on ‘voter 

registration Gonzalez v. Stephens, 427 S.W. 2d 694 (Tex. Civ. 
APp. Corpus Christi 1968); .an annual ‘voter .registration 

system held to be more restrictive that the poll tax which it 
replaced Beare v, Smith, ::321* Fed. Supp. 1100 "(S. 'D. - Tex, 

1971) aff’d sub nom Beare v. Briscoe, 498 PF. 2d 244 (5th Cir. 

1974); an absolute prohibition on the use of interpreters by 

non-English speaking voters Garza v, Smith, 320 F. Supp. 131 
(W.D. Tex. 1970; and unconstitutionally high candidate filing 

fees Carter v, Dies, 321 F. Supp. 1358 (N.D. Tex. 1970) aff'd 

sub nom. Bullock v. Carter, 405 :U.8. i134. (5th Cir. 1973) see 

also Duncantell v, City of Houston, 333 FF. Supp... 972 (S.D. 

  

  

  

  

  

  

  

  

  

22 

 



  

generally Graves v. Barnes, 343 F. Supp. 704, 725 (W.D. Tex. 
  

1973) (three-judge) aff’d in relevant part sub nom. White wv.   

Regester, 412 U.S. 755 (1973).   

It is significant that at-large elections in many of the 

cities and school in the counties which comprise the 13th 

Appellate District have been found in violation of Section 2 of 

the Voting Rights . Act. In each situation, single member 

districts has been ordered as a remedy. See e.g. Cisneros Vv. 
  

corpus Christl '1.8.D,, 467 FP. 20142 A5theCir. 1972) “(Corpus 
  

Christi I.S.D. School desegregation case); Graves v. Barnes 
  

  

Tex. 1971). Property ownership requirements Puente v. Crystal 
Clty, Civil Action No :DR-70-CA-4 (W.D. Tex. April. 3, 1974), 

Mexican American children were segregated on the basis of 

ethnicity and forced to attend "Mexican" of "Latin American 

Schools" even though no state statute required such 
segregation. See United States v, Texas, 342 F. Supp. 24 

(E.D. Tex. 1971); Cisneros v, Corpus Christi l1.8.D., 324 ‘Fr. 

Supp. 599 (S.D. Tex. 1970);. Independent School District wv. 

Salvatierra, 33 SW. 2d 7790 "(Tex.: Civ. App. San Antonio) 

cert. denied 284 U.S. 580 (1931), Delgado vy. Bastrop 1.8.D., 

Civil Action No. 388 (Western District of Texas Austin Div. 

June 15, 1948), Perez v. Sonora I1.8.D., Civil Action No. 6- 

224: (N.D.. Tex. Nov. #5, .1970) (unreported); Hernandez wv. 

Driscoll Consol. .1.85.D.,2 Race Rel.. lL. Rept. 329 (S.D. Tex. 

1957), Chapa v. Odem 1.8.D., "Civil ‘Action No. :66-C-92 (S.D. 

Tex. July 28, 1967}, Mexican Americans and Blacks excluded 

from: participation on Juries Smith v. Texas, 311 U.S. 128 
(1240); Hill v. Texas, "316 0.8. 400 (1942); Cassell .v. Texas, 

339 U.8. 282 (1950); Hernandez v.. State of Texas, .347 U.S. 

475 ::{(1954), Munlz v. Beto, 434 F. 2d 6897, (5th Cir. 1970), 

Rodriguez v, Brown, 437 PF, 2d:34 (5th Cir.” 1971), Juarez wv. 

State, 102 Tex. Crim. 297, 2777 S.W. 1091)y (1925). See also 

League of United Latin American Citizens v Midland I.S.D., 

648 PF, Supp 596, 613-621 (W.D. Tex. 1986). 

  

  

  

  

  

  

  

  

  

  

  

  
  

  

  

  
  

  

23 

 



  

(Graves Il) (three-judge) 378 F. Supp. 640, (W.D. Tex. 1975) 

vac. as moot 422 U.S. 935 (at-large elections of state 

representatives in Nueces County held unconstitutional); Alonzo 

v, Jones, C-81-227 (S.:D. Tex. Corpus Christi Div. Feb. 3, 1983)   

(City of Corpus Christi at-large elections found to violate 

Section 2 of the Voting Rights Act) As Judge Kazen noted in his 

1983: opinion finding the City of Corpus Christi at-large 

elections to violate Section 2 of the Voting Rights Act: 

[T]he Court has found that the Mexican Americans in 

Corpus Christi constitute a distinct minority group. 

For many years, lasting through the mid-50s, they were 

the victims of pervasive discrimination. Vestiges of 

that discrimination still remain so that the average 

Mexican American has attained a significantly lower 

educational level and earns significantly less income 

that his Ango counterpart. Approximately 65% of the 

Mexican American population of Corpus Christi is 

concentrated in a contiguous area known as the 

Westside, which is generally the older and poorer area 

of the: city. There 1s a clear, even startling, 

correlation between voting patterns and ethnicity in 

the various precincts. In recent electoral history, 
  

whenever there has been a clear electoral choice, 

whether it be slate versus slate or between credible 

candidates, the voting in the Westside and the 

Southside is highly polarized, usually the mirror 

opposite. 

Id. unreported slip opinion at pages 23-24. 

  

  

  

  

  

See also LULAC v, Corpus Christi I.S.D., C~74-ChA95 '(s.D. 
  

Tex. Corpus Div. Jan. 14, 1981) (At-large elections in Corpus 

Christi I1.S.D. found to:violate Section 2 of Voting Rights Act); 

(litigation alleging a violation of Section 2 

of Voting Rights Act settled by replacing at-large elections with 

24 

 



  

single member districts in the Gonzales I.S.D.); Mata v. Reed, V- 
  

82-16." {S.D. Tex. Victoria. Div. -June’ 16, i: 1982) (litigation 

alleging a violation of Section 2 of Voting Rights Act settled by 

replacing at-large elections with single member districts for the 

Victoria City Council); school single member 

district case; Galvan v. City of Port Lavaca, V~83-13 (5.D. Tex.   

Victoria Div. Nov. 8, 1983) (successful litigation alleging at- 

large elections in Port Lavaca, Calhoun County dilute Mexican 

American voting strength settled by adoption of single member 

districts); Rodriguez v, Calhoun 1.8.D., V-383~ {S.D. Tex, 
  

Victoria Div. 1983) (litigation alleging a violation of 

Section 2 of Voting Rights Act settled by replacing at-large 

elections with single member districts in the Calhoun I.S.D.); 

Gonzales v. Beeville 1.5.D,, C-82-130 (S.D. Tex. Corpus Div. July 
  

17, 1987) (litigation alleging a violation of Section 2 of Voting 

Rights Act settled by replacing at-large elections with single 

member districts in the Beeville I1.S5.D.); Ruiz v. Wheeler, C.A. 
  

V-88-17 {(S.D.. Tex Victoria Div.). {suit under Section 5 of the 

Voting Rights Act to compel the City of Cuero to submit Charter 

Revisions which had been made in the city election procedures in 

1977 and also a Section 2 attack on the at-large elections for 

the Cuero City Council--The Defendant City has proposed a single 

25 

 



  

member district election system as a remedy) %; Garcia Vv. 
  

Guerra, 744 F. 240 1159 (5th Cir. 1984), cert. denied 471 U.S.   

1065 (1985) (suit to prevent change in election dates by the 

Progresso and Weslaco I.S.Ds. in Hidlago County which would have 

disadvantaged migrant voters); Sanchez v. McDaniel, 615 F. 2d   

1023 (5th Cir. 1980) aff'd 452 U.8,: 130 (1981) (suit which 

invalidated the apportionment of the Kleberg County 

Commissioners’ Court because it diluted Mexican American voting 

strength and then amended to compel the county to comply with 

Section 5 of the Voting Rights Act) Garza v. Rapp,   

S.D. Tex. Brownsville Div. ) (successful suit brought to 

reapportion Wilacy County Commissioners’ Court); See also Garcia 

Vv. City'of Taft, C-84-230 35.D. Tex. Corpus Christi Div. (single 
  

  

&/ In an Order of the District Court of January 25, 
1989, the City agreed that the Charter provisions in question 

violated the Equal Protection Clause of the Constitution and 

an injunction was issued. The at-large election system was 

also abandoned and on January 26, 1989 the City submitted a 
single member district election scheme to the Department of 

Justice for pre-clearance. In the Section 2 portion of the 

at-large attack, the Plaintiffs alleged that only one Mexican 

American and no Black had ever been elected to the Cuero City 

Council in spite of the fact that almost 46% of the City was 
minority. Significantly, the one Mexican American who had 

been elected was endorsed and supported by the Mayor in his 

election and re-election campaigns. When the Mexican 
American lost the endorsement of the Mayor, he was defeated. 

Plaintiffs’ Exhibit is a copy of a survey done by Dr. Bob 
Brischetto of voters in the May 7, 1988 Cuero CIty COuncil 

election. The study indicates extreme polarization. 

26 

 



  

member district suit agaist the City of Taft in San Patricio 

County which has been tried on the merits with decision pending); 

Smith v. Commissioners’ Court of Matagorda County, C.A.-76-G-89 
  

(final Order Jan. 14, 1980) (County Commissioners’ reapportionment 

case brought on behalf of minority plaintiffs resulted in a 

reapportionment of the County Commissioners’ Court Precincts; 

VOTA v. Dean, (S.D. Tex. Brownsville Div. )   

(Successful suit against Texas Secretary of State to enjoin use 

of seriously flawed arrest records to purge voters just prior to 

the 1984 state general election); 

Voting Rights Act Objections under Section 5 of the Act have 

also been common in the counties making up the 13th Appellate 

Districts While "a Voting Rights Objection is nota finding of 

voting discrimination per se, it is “a8 “finding fthat the 

jurisdiction which is attempting to make the election change was 

not able to convince either the Department of Justice or the 

District Court for the District of Columbia that the change was 

non-discriminatory. Objection Letter dated January 26, 1976 
  

(H.B. 1097 (1975) --~-Redistricting  . of State Representative 

Districts in Nueces County); Objection Letter dated April 2, 1976 
  

{Consolidation ©f «two: school districts. in Victoria County); 

Objection Letter dated May 5, 1976 (change from pure at-large 
  

elections to numbered post elections in the Pettus I.S.D., Bee 

27 

 



  

County); Objection Letter dated March 25, 1977 (polling place   

change in the Raymondville I.S.D., Willacy County); Objection   

Letter dated March 24, 1978 (redistricting of the Nueces County   

Commissioners Court); Objection Letter dated April 28, 1978 
  

(redistricting of the Aransas County Commissioners Court); 

Objection Letter dated February 1, 1979 (redistricting of 
  

Beeville City Council); Objection Letter dated April 16, 1980 
  

(Corpus Christi I.S.D. reapportionment plan); Objection Letter 
  

dated September 3, 1980 (annexations to the City of Victoria 
  

withdrawn 3/13/81 upon change in electoral system); Objection   

letter dated January 29, 1982. 4(5.B.. 1: (1981)y--Congressional 
  

redistricting--objection to the manner in which Nueces, Cameron 

and Hidalgo Counties were combined) 

In addition to voting discrimination, there are a number of 

cases involving other racial and ethnic discrimination in the 

counties which comprise the 13th Judicial District Roman Vv.   

Reynolds Metals Co., 368"F.. Supp. 47 (S.D." Tex. 1973) «(large 
  

private employer in Nueces County found to have violated Title 

VII in discriminating against Mexican American Employees); 

Trevino v. Celanese Corp., 701 F¥. 2d 397 (5th Cir. 1983) (Title 
  

VIII case arising against a large employer in Kleberg County); 

Saucedo v. Brothers Well Service, 464 F. Supp. 919 «(S5.D. Tex. 
  

1979) (Jury verdict in a Title VIII case for Mexican American 

28 

 



  

against large employer in El Campo, Wharton County); Cristobal   

Garcia v. Victoria 1.S.D. 1978 wi 97 (8.D. Tewm., Victoria Div. 
  

1978) (School District found to have discriminated against 

Mexican American employees and applicants); Balderas v. La   

Casita Farms, 500 F. 2d 195 (5th Cir. 1974) (Mexican American   

employee dismissed because of association with United Farm 

Workers Union); Partida v. Castaneda, 524 F. 24d 481 (5th Cir.   

1975) aff'd sub nom.: Castaneda v. Partida, 430 U.S. 482 (1977) 
  

(pattern and practice of discrimination against Mexican Americans 

found in selection of Grand Juries in Hidalgo County); Cuidadanos 
  

Unidos de San Juan v. Hidalgo County; Caballero v. Praeter, 622 
  

FP. 2d 807 (5th Cir. 19380) (Case involving grand jury selection in 

Hidalgo and Wilacy Counties); While there was 

no litigation against several counties, Dr. Charles Cotrell, 

Plaintiffs! "expert did a ‘study for the U.S5. Civil: Rights 

Commission and found evidence of severe pattern and practice 

discrimination in the selection of Grand Juries against Mexican 

Americans in Bee, Goliad, Gonzales, Kleberg, Live Oak, Nueces, 

Refugio, San Patricio and Victoria Counties. 7/ See also 

  

by ; Texas Advisory Committee, U.S. Commission on Civil 
Rights, Texas: The State of Civil Rights (1981). Seven of 

the counties in the 13th District were part of the (Civil 
Rights Commission’s random study covering a ten year period. 

The degree of this pattern is indicated as follows: 
Sp. Surname Sp. Surname 

County Male & Female Female 

Bee ~ 0.5 =-57.8 

29 

 



  

Guadalupe Colbagh v. Colbath, 16-b-52 {S.D. Tex. 
  

Brownsville Div. ) (McAllen Police brutality case--this 

class action together with related individual suits resulted in 

almost $400,000 in damages and the agreed creation of a civilian 

review board for the City). 

Cameron: VOTA v. Dean   

Willacy: Farm worker cases, Garza v. Rapp.   

Although these cases do not deal directly with the elections 

for the Thirteenth Court of Appeals, the Fifth Circuit has looked 

to current discrimination by parallel units of government in the 

same counties as indicative of the status of the minority 

community, the attitudes of the White or Anglo residents and 

generally a part of the "blend of history and an intensely local 

appraisal of the design and impact of the [at-large system] in 

  

Goliad -55.7 -88.7 

Gonzales -68.9 -87.7 

Kleberg -41.9 =-71.0 
Live Oak -54 .5 -88.7 

Nueces -39.0 -87 +1 

Refugio -65.8 -30, 7 
San Patricio -38.5 -90.2 

Victoria -55.2 -79.4 

Id. at 33, 

30 

 



  

the light of past and present reality, political and otherwise." 

White v., Regester, 412 U.S." 755," 769-70: (1973). McMillan wv.     

Escambia County, 688 FP. 2d 960, 962 (5th Cir. 1982)   

2. the extent to which voting in the state or political 
subdivision is racially polarized. 

Here Discuss the election analysis 

The Proof of the Pudding 

A. INDEX OF EQUITY 
  

  

An additional measure of polarization which has been adopted 

by several Courts is what is referred to as "Equity of Election" 

or an "Equity Measure" See generally LULAC v. Midland I.S.D., 
  

648 F. Supp. 596, 602 (W.D. Tex. 1986) aff'd 812 F. 2d :.14%4 (5th 

Cir. 198 ); Davidson and Korbel, At-Large Elections and Minority 

Group Representation in Minority Vote Dilution Davidson Ed. 1984 

Cited in Gingles 478 U.S. 47 n. 13. ‘Plaintiffs’ EBxhibir , set 

out in full, computes the "equity of election" for the Thirteenth 

Appellate District from 1976-1988. 

EQUITY MEASURE 
  

%$ of Representation % of Mex-Am. in Equity 
    

  
    

Year of Mex-Am. as Judges 13th Dist. Pop. Measure 

1976 0.00% 56.63% 56.63% 
1977 0.00% 56.63% -56.63% 
1978 0.00% 56.63% -56.63% 
1979 0.00% 56.63% -56.63% 
1980 0.00% 56.63% -56.63% 

31 

 



  

1981 */ 16.67% 56.63% -39.96% 

1982 b: 16.67% 56.63% =39.96% 

1983 16.67% 56.63% -39.93% 

1984 *xx/ 16.67% 56.63% «39.93% 

1985 16.67% 56.63% -39.93% 

1986 16.67% 56.63% =39.93% 

1987 16.67% 56.63% =39.93% 

1988 16.67% 56.67% =39.93% 

Average Index of under-representation -46.37% 

*/ Justice Gonzalez was first appointed to the Court of Appeals 

in September of 1981. He served until he was appointed to the 

Texas Supreme Court October 9, 1984. 

**x/ Justice Benavides was appointed to the Court of Appeals in 

November of 1984 to replace Justice Gonzalez. 

The concept of representational equity posits a proposition 

that all other things being equal, one would expect over a period 

of time that the percentage of minority elected officials would 

roughly approximate the percentage which that minority represents 

in the overall population of the electoral unit. The "Equity 

Measure" is derived for each election by subtracting the 

percentage which Mexican Americans make up of in the overall 

population from percentage which they comprise of the Board of 

Trustees. Thus, as here, if Mexican Americans comprise only 

16.7% .0f the Judges (1 of 6) but 56.6% of the population, the 

equity score would be -39.9 (16.7 minus 56.6 equals -39.9). 

Plaintiffs’ Exhibit indicates that the average "equity" or 

"under-representation" over the period 1976 through 1988 would be 

a negative or a minus (-) 46.7. The average "inequity" for the 

32 

 



  

at-large elections in the Midland I.S.D considered by the Court 

in LULAC v. Midland I.5.D. (supra) was minus (~) 15.57. Indeed,   

in the Midland situation, at least one election, minority group 

members elected two candidates and comprised a greater percentage 

of the school trustees than they represented in the overall 

population. 

B. FINDINGS AGAINST OTHER CONTIGUOUS JURISDICTIONS 
  

The evidence in this case indicates that some sort of 

discrimination against Mexican Americans, usually relating to 

elections in which high degrees of racial polarization, has been 

found in twelve of the twenty counties which represent more than 

84% of the Anglo and 96% of the Mexican American population in 

the Thirteenth Appellate District. In the City of COrpus Christi 

case Judge Kazen found that: 

The evidence clearly presents a pattern of polarized 

voting as between the Westside and other areas of the 

city, sometimes generally described by the witnesses as 

the "Southside." [matter omitted] Plaintiffs’ experts 

found a high degree of statistical correlation 

indicating ethnically polarized voting. Indeed, [one 

Plaintiffs’ expert labeled the correlation 

"startiing." Even the defense witnesses agreed that 

Corpus Christi was a polarized community. 

Alonzo v. dJdones, C-81-227 (S.D. Tex." Feb. 2, 1983) unreported 

slip opinion at 8. 
  

33 

 



  

The analysis of election returns, the statistical proof of 

racially polarized voting, and the high "inequity index" taken 

together, make out a strong case for the finding that the at~- 

large election system for Judges to the Thirteenth Judicial 

District dilutes the votes of Mexican Americans and results in 

making it more difficult for them to participate in the political 

process and to elect representatives of their choice. 

One is not Enough 

The fact that two Mexican Americans have been elected to the 

Court of Appeals does not insulate it from litigation over single 

member districts. Indeed, at the time of the Supreme Court 

Consideration of White v. Regester, (supra) there had been five 
  

Mexican Americans elected at-large to the Bexar County 

legislative district. In Midland at the time that LULAC vv.   

Midland I.S.D. (supra) was decided, there had been three Mexican 
  

Americans elected to the school board. As here, none of the 

Mexican Americans elected to the Midland I.S.D. had faced Anglo 

opposition. 

In the fact situation under consideration, Justice Gonzales 

was first appointed to the Thirteenth Appellate Bench in 1981 by 

Governor Clements just prior to the Governor’s re-election 

34 

 



  

contest with Mark White. In the later part of 1984, Governor 

White, again running against Governor Clements, appointed Justice 

Gonzales to the Texas Supreme Court and replaced him with Justice 

Benavides who currently sits on the Thirteenth Court. The Fifth 

Circuit: has said: 

[W]e cannot endorse the view that the success of black 

candidates at the polls forecloses the possibility of 

dilution of the black vote. Such success might on 

occasion, be attributable to the work of politicians, 

who, apprehending that the support of a [minority] 

candidate would be politically expedient, campaign to 

insure his election. 

Zimmer v. McKeithen, 480 P. 2d 1297, 1307 (5th Cir. 1973).   

See also - N.A.A.C.P, by Campbell v, Gadsden County School. Bd., 
  

691 FP. 2d 878, 983 (11th Cir. 1982). 

3. the extent to which the state or political subdivision 

has used unusually large districts, majority vote requirements, 

anti-single shot provisions, or other voting practices or 

procedures that may enhance the opportunity for discrimination 

against the minority group. 

Elections for the Thirteenth Court of Appeals feature all of 

the voting practices which have been identified by federal courts 

as enhancing the tendency of at-large elections to discriminate 

against Mexican Americans. 

A. Large Geographic Size and Population 

At more than 18,000 square miles and a population of more 

than 1.1 million, the district is one of the largest in the state 

35 

 



  

and also the largest at-large election system which has been the 

subject of litigation. 

indicate that the 1987 U.S. 

Thirteenth Appellate District has 

million. 

Indeed, the evidence in this case will 

Census projections indicate that the 

grown to in excess of 1.3 

The size of the district is brought into sharp focus 

when compared with the populations of various entire states: 

POPULATION COMPARISONS 

SELECTED TEXAS JUDICIAL DISTRICTS 

WITH STATE POPULATIONS 

Texas Judicial 

  

1980 Districts 1987 

State Census Census Projections 

1. Alaska 401,851 

2. Wyoming 469,557 

3. Vermont 511,456 

4, Delaware 584,338 

5. Dist. of Col. 638,432 

6. North Dakota $652,717 

7. South Dakota 690, 768 

8. Montana 786,690 

9. Idaho 944,127 

10. Nevada 800,508 

11. New Hampshire 920,610 

12. Rhode Island 047,154 

13. Hawaii 964, 961 

14. Maine 1,125,043 

15. New Mexico 1,303,302 

In terms of total area, 

13Th Appellate Dist 

1,370,500 

the 18,000 square miles of land area 

in the Thirteenth District places it larger than the entire areas 

of nine states: 

Connecticut ( 

Delaware ( 

4,872 sq. mi.) 

1,932 sq. ml.) 

35 

 



  

Hawaii { 6,425 sq. mi.) 

Massachusetts ( 7,824 sg. mi.) 

New Hampshire ( 8,993 sg. mi.) 

New Jersey { 7,468 sg. mi.) 

Rhode Island {1,055 sq. mi.) 

Vermont £:.9,273 sq. mi.) 

Source: Information Please Almanac 

B. Majority Vote 

The majority vote requirement (rather than plurality) is a 

problem because it requires run-off elections if no candidate 

gets more that 50% of the vote. What happens is that a minority 

candidate will run against more that one Anglo candidate and the 

Anglo vote will split. Since the minority voters usually vote 

together, sometimes the minority candidate will get into the run- 

off. 

C. No Single Shot Voting Permitted 

The elections also utilize the SO called "place 

requirement." The alternative to this is the pure at-large 

system. In the pure at-large, if for example six positions were 

up for election, then the top four vote getters would be elected. 

With the pure at-large system, minority voters are able to use a 

technique called single shot voting. In this way minority voters 

vote only for the minority candidate and thus increase the impact 

Of their vote. See the discussion in Thornburg v. Gingles, 
  

(supra). 106 S. Ct. at 2760 esp. n. 5. 

37 

 



  

In the place system, there would be six separate contests, 

one for place 1, one for place 2, one for place 3, one for place 

4, one for place five and one for place 6. This creates head on 

head contests between Anglo and Minority candidates which 

highlight the race question. Furthermore, since there are 

separate contests, there is no value in single shot voting. 

D. There are No Residency Sub-districts 

In addition, the elections before the Court do not have a 

sub-district residency requirement which could in some degree 

offset the disadvantage of a voting minority in at-large 

elections. ¥/ "Thus," as here, "all candidates may be selected 

from outside the [minority] residential area." White v. Regester, 
  

412 U.5.. 755 (1973). This potentially discriminatory electoral 

feature was identified as particularly significant in Zimmer v.   

McKeithen, 485 F. 2d 1297, 1305 (5th Cir. 1973). Here, given the   

extremely large geographic and population size of the 20 county 

area, the lack of residency sub-districts takes on special 

  

importance. 

8/ With a sub-district residency rule, candidates would 
have to reside in a defined geographic district but would 

still be elected at-large. Because of the degree 

concentration of Mexican Americans in Hidalgo and Cameron 

Counties as well as the level of residential segregation in 
Corpus Christi, such a residency requirement will almost 

certainly produce minority representation. 

38 

 



  

4. if there is a candidate slating process, whether the 

members of the minority group have been denied access to that 

process. 

This part of the test asks whether there is a slating group 

and if so, do Mexican Americans have access to it. ?/ Plaintiffs 

  

2/ This slating group gloss grows out of the Dallas 
County situation in White v. Regester where the Dallas 
Committee for Responsible Government (DCRG) had a virtual 

lock on picking successful candidates. This was due in part 

to the fact that Dallas elected eighteen state 

representatives at large in a county of more than 1.3 million 

  

  

persons. None of the state’s witnesses, even the Dallas 

County Democratic Chairman, could name all of the 
representatives from Dallas. As a result, the evidence 

indicated, people relied in large part upon the slating of 
the well respected businessmen who made up the D.C.R.G. The 

Supreme Court found that D.C.R.G. "a white-dominated 
organization [had] effective control of Democratic Party 

Candidate slating." White v. Regester, (supra) 412 U.S. at 
766-67. Since, with only one exception, only Democratic 

candidates were elected to the legislature from Dallas 

County, the real election contest in Dallas took place when 
candidates attempted to obtain slating from the D.C.R.G. 

Accordingly, the Court inquired in to whether minority 
residents of Dallas County had real access to this "white- 

dominated" slating process. 

This is much like the "Jaybird Primary" considered by 
the U.S. Supreme COurt in Terry v. Adams, 345 U.S. 461 (1953) 
in which the "Jaybird Democratic Club" met and held a pre- 

primary nomination process in which Black residents were not 
allowed to participate. 

  

39 

 



  

do not lose anything if there is no slating group. Rather this 

test is placed in the formula to insure that Courts considering 

claims of this sort pay careful attention to the sorts of slating 

groups that virtually control elections. In most cases, there 

may be various organizations which endorse candidates but it is 

vnusual to find a group which is so powerful that its slate is 

always successful. See e.g. U.S. Vv, Dallas County Alabama 
  

commissioners, 739 F. 2d.:1529, 1539 {llth Cir. 1984), United   

States v. Marengo County, 731 FT. 2d 1546, 1569 {llth Cir. 1984). 
  

As a result, this factor is seldom identified in single member 

district cases such as this. LULAC v, Midland County I.S.D., 
  

(supra) 648 F. Supp. at 603 (W.D. Tex. 1986) ("There was no proof 

that there ever was a slating process in the election of school 

trustees, hence there was no proof that any minority group was 

denied access to that system"). 

5. the extent to which the members of the minority group 

bear the effects of discrimination in such areas as education, 

employment and health which hinders their ability to participate 

effectively in the political process. 

The social and economic situation of Mexican Americans in 

the area 1s an sad example of the current effects of past 

discrimination. 

As the District Court held in the leading Texas case dealing 

with at-large elections: 

There is no aspect of human endeavor, in general, 

40 

 



  

and of American life in particular in which the ability 

to read, write and understand...is more important than 

politics. 

Graves v. Barnes, 343 F. Supp. 704 (W.D. Tex. 1971) (three-judge) 

aff’d in relevant part sub nom White v. Register, 
  

  

In the City of Corpus Christi single member district case, 

Judge Kazen noted: 

Historically, Mexican Americans have been the subject 

of discrimination throughout the State of Texas and 

including the City of Corpus Christi. This 

discrimination was pervasive, involving employment, 

housing, public accommodations, education, and 

political access. [matter omitted] Of course, the most 

blatant forms of discrimination have since disappeared 

such as the poll tax, segregated schools, restrictive 

covenants, segregated public accommodations, etc. 

Vestiges do remain. Thus the average family income and 

the educational level of the Mexican American 

population of Corpus Christi is significantly lower 

than that of the Anglo population. For example, of 

those 25 years of age and older who have completed at 

least four years of college, 81.9% are Anglo and only 

14.2 % are Mexican Americans. Mexican Americans 

comprise only 33.8% of the High School graduates as 

contrasted with 60.6% Anglos. The mean family income 

in COrpus CHristi $22,810 but it is only $16,954.00 for 
Mexican American families. Of those Corpus Christi 

families with annual incomes below $5,000.00, 65% are 

Mexican American while 86.4% are Anglos. 

Alonzo v. Jones, C-81-227 (5.D. Tex. Feb. 2, 1983) unreported 

slip opinion at 6. 
  

The Census offers a number of comparisons which deal with 

persons over the age of 25 who are those most likely to be 

available to participate in the process. According to the 1980 

Census of Population there were a total of 293,407 Mexican 

Americans over the age of 25 living in the counties which 

comprise the Thirteenth District. Of these, 98,231 or more than 

41 

 



  

one-third were functionally illiterate. Stated another way, 

almost 91% of the functionally illiterate adults in the area were 

Mexican American. The median school years completed for Mexican 

Americans in the area ranged from a low of 5.6 in Kenedy County 

to a high of 9.6 in Nueces County. In only 5 of the 20 counties 

did Mexican Americans have a median school years completed of 

more than 8 years. Stated another way fewer of a third of the 

Mexican Americans in this prime age group had completed High 

School and just over 5% were College graduates. U.S. Department 

of Commerce, Bureau of the Census, 1980 Census of Population: 

General Social and Economic Characteristics-Tex. Vol. 'I and II 

July, 1983. 

The 1980 Federal Census of Population also indicated that 

there were a total of 281,653 persons earning sub-poverty level 

wages. Of these 80.99% were Mexican American and 3.89% Black. 

Id. Of the slightly over 37,000 persons employed in the more 

prestigious administrative or executive positions in the twenty 

county area, Anglos comprised 67.6% while Mexican Americans and 

Blacks represented only 30.2% and 1.6% respectively. Id. 

Another vantage on the economic and political status of 

Mexican Americans living in the Thirteenth Judicial District is 

the large number who are migratory farm workers. The most recent 

data available from the state of Texas indicates that there are 

42 

 



  

more than 100,000 migrants in the twenty county area and an 

additional 34,183 seasonal farm workers (employed on a seasonal 

basis in farm related work but return home in the evening to 

sleep). See generally Plaintiffs’ Exhibit . The significance 

of the number of migrants is underscored by the dates of the 

primary elections which have traditionally been held in May with 

June run-offs. The migrant schedule makes it extremely difficult 

for them to participate in either election. 

The economic picture for the area is confirmed by the 1987 

data available from the Texas Employment Commission which found 

that the unemployment rate for Hispanics in the twenty county 

area was 18.2% as compared to. only 7.8% for ‘Anglos. See 

Plaintiffs’ Exhibit 

Courts have looked to this current economic and social 

situation for three purposes: 

This lower socio-economic status gives rise to special 

group interests centered upon those factors. At the 

same time, it operates to hinder the group’s ability to 

participate in the political process and to “elect 

representatives of its choice as a means of seeking 

governmental awareness of and attention to those 

  

interests. 

Gingles v. Edmisten, 590 .F. Supp. 345, 363 (E.D. North Carolina 

1984) affirmed in relevant part sub nom Thornburg v. Gingles, 
  

106 8S. Ct. 2572. (1986). 

It is well established that Plaintiffs are not required to 

show a "causal nexus between their relatively depressed socio- 

economic status and a lessening of their opportunities to 

43 

 



  

participate in.the political process." 1d. at n. 23, see also 

S.Rep. No. 97-417 n. . 114. As the Fifth Circuit has stressed: 

The Supreme Court and this Court have recognized that 

disproportionate educational, employment and living 

conditions tend to operate to deny access to political 

life. [matter omitted] It is not necessary in any case 

that a minority prove ... that these economic and 

educational] factors have "significant effect" on 

political access.... Inequality of access is an 

inference which flows from the existence on economic 

and educational inequalities. 

Rirksey v. Board of Supervisors, 554 F. 2d 139, 145 (5th Cir.) 

cert. denied, 434 U.S. 968 (1977). 
  

Stated another way, the Fifth Circuit has held that where 

there is clear evidence of socioeconomic or political 

disadvantage, the burden is not on the plaintiffs to prove that 

this disadvantage is causing reduced political participation, but 

rather on those who deny the causal nexus to show that the actual 

cause 1s something else. Cross v. Baxter, 604 F. 2d 875, 881-882   

(5th Cir. 1979), Kirksey, (supra) 554 F. 2d at 144-46; Zimmer, 

{supra). 485 F.2d at 1306. 

6. whether political campaigns have been characterized by 

overt or subtle racial appeals. 

This is another gloss which seems to have grown out of the 

Dallas County portion of White v. Regester (supra). In that 
  

case, Plaintiffs demonstrated that in Dallas County, the D.C.R.G. 

(the very powerful slating group) had utilized racial tactics to 

identify and defeat Black Candidates that it had not slated. As 

44 

 



  

time passes, few of these cases tend to identify this element. 

See e.g. United States v. Dallas County Alabama, 739 F. 2d 1529, 
  

1539 (11th Cir. 1984). See also United States v. Maringo County, 
  

7331 FP. 24 1546, 1571 (5th. Cir. 1984); LULAC vy, Midland I.S.D., 
  

(supra) 648 F. Supp at 605 ("There was no proof that this existed 

in any school board election"). */ 

Since Blacks have very Anglo-Saxon sounding surnames, it is 

was important in a County the size of Dallas to identify the 

Black candidates to effectuate the racial prejudice of the White 

Community. No similar evidence was produced in Bexar County 

portion of White where the minority candidates had all been 

Mexican Americans who are self identified by their surnames. 

7. the extent to which the minority group have been elected 
to public office in the jurisdiction. 

In the case before the Court, only two Mexican Americans 

have been elected to the Thirteenth Court of Appeals. Both were 

appointed by Governors in the midst of re-election contests. The 

  

iY In the Corpus Christi City Council single member 
district case, Judge Kazen noted that "the only evidence of 

an open. ethnic appeal during a City Campaign in recent 
history involved the 1971 election. [matter omitted] The 

appeals were couched in terms Of - ‘opposition “to. the 

Steelworkers’ Union and '‘the causes they support’. Other 

campaign propaganda that year was more explicit, reminding 

people that the union had "sponsored the school busing case". 

Alonzo v. Jones, C-81-227 (8.D. Tex. Feb. 2, 1983) unreported 

slip opinion at 15. 
  

45 

 



  

first in late 1981 by Governor Clements and the second in late 

1984 by Governor White to replace the first. At no time has 

there ever been more than one Mexican American on the Court. 

Although both were subsequently elected, they were unopposed. 

Corpus City elected nine 24 

Miscellaneous Factors 

In addition to these seven factors, Congress listed two 

others "which are less significant but which might have limited 

relevance in certain situations." Sierra v. El Paso I.S.D., 591 
  

F. Supp. 802, 807 (W.D. Tex. 1984). These are whether there is a 

significant lack of responsiveness on the part of elected 

officials and whether the policy underlying the electoral device 

is tenuous. S.Rep. No. 417 at 291982 U.S. Code Cong. and Ad. 

News at 207. 

A. Responsiveness 

Certainly, the judicial context is an example of a situation 

where the issue of responsiveness simply has no relevance. 

Indeed, the question of responsiveness goes more to the question 

of whether election system amounts to a Constitutional (as 

opposed to a Section 2 statutory) violation: 

Responsiveness or lack thereof, goes to proving 

discriminatory intent in the maintenance of the 

electoral system... It has nothing to do with impact. 

46 

 



  

"Whether current officeholders are responsive to 

[minority] needs and campaign for [minority] support is 

  

    

simply irrelevant to that inquiry." McMillan wv. 

Escambia County, (Escanbia 1) 638 F. 2d 1239, 1249 (5th 

Cir. 1981) 

N.A.A.C.P, v, Gadsden County School Bd., 691 F. 24 9578, 983 (5th 

Cir. 1982) 
  

In the" "'Maringo County case, (supra). 731 P. 2d at 1572, the   

Plaintiffs offered little in the line of responsiveness proof. 

The 11th Circuit noted that: 

Unresponsiveness is of limited importance under Section 

2 for two reasons. First, Section 2 protects the 

access of minorities not simply the fruits of 

government but to participation in the process itself. 

Accordingly, evidence that officials meet the 

functional needs of minority citizens does not overcome 

the evidence that the minorities are excluded from 

political participation. Second, responsiveness is a 

highly subjective matter and this subjectivity is at 

odds with the emphasis of Section 2 on objective 

Factors. The Senate Report states that "defendants’ 

proof of some responsiveness would not negate 

plaintiff’s showing by other, more objective factors 

enumerated here that minority voters were nevertheless 

shut out of equal access to the political process." 

1982" Senate Report at. 29 n. 116, U.S. Code Cong. &% 

Admin News 1982, p. 207 n. 116, The authors of the 

Senate Report apparently contemplated that 

unresponsiveness would be relevant only if the 

plaintiff chose to make it so... [footnote omitted]. 

In the matter before this Court, the Plaintiffs do not have 

a burden to demonstrate unresponsiveness ''/ on the part of the 

  

''/ In the case of unresponsiveness or poor performance, 
Lhe Senate Report on Section 2 of "the Voting Rights Act 
expressly disapproves of the view that unresponsiveness was 
an essential element of a voting dilution claim and stated 
moreover, that a showing of responsiveness did not negate 
Plaintiff's claim. S.Rep. "No. 417 .at 29 n. 116, 1982.:0U.8s. 

477 

 



  

Judges. 

B. Tenuous Policy Underlying At-Large Election 

The Remedy 

Plaintiffs will propose a single member district plan of 

apportionment for the Thirteenth Judicial District. The adoption 

of single member districts makes a big difference in the success 

rate for minority candidates. For example, the Supreme Court in 

Gingles cited a study done on Texas jurisdictions which indicates 

that patterns of under representation such as those here can be 

remedied by the adoption of single member districts. **/ Of 12 

legislative districts studied there was a combined under- 

  

Code Cong. & Ad. News at 207 n. 116. This statement would 
seem to change the suggestion of the Supreme Court in Lodge 

v. Buzxton,i 839 .F. 24.1358, 1375 (5th Cir. 1981) aff'd sub nom 

Rodgers v., Lodge, 458 U.S. 613 (1982). 

  

  

  

i2/ Chandler Davidson and George Korbel, At Large 
Elections and Minority Group Representation, A Reexamination 

of Historical and COntemporary Evidence, Journal of Politics 

43 (1981) 982-1005 cited in Thornburg v. Gingles, (supra) 106 
S« Ct. at 2765 nn. 13. This study examined the 41 instances 

of changes from at-large to single member districts in Texas 

which had taken place from 1973-19709. 

  

  

  

  

48 

 



  

representation of minus (-) 23.6% 1*/ when the candidates ran 

at-large. However, in the first election after single member 

districts were adopted, this severe under-representation was 

changed to a very slight over representation of Mexican Americans 

and Blacks. Of the 21 cities which were studied, before single 

member districts there was an under representation of minus (-) 

18.7%. After districts this was moderated into only a minus (-) 

3.3% under-representation. The eight instances of educational 

districts (School Boards and Junior College Districts) studied 

indicated that before districts there was a minus (-) 21.5% 

under- representation and after districts the degree of minority 

representation was an almost perfect minus (-) 0.1%. 

Respectfully Submitted: 

  

George J. Korbel 

Counsel for the Plaintiffs 

  

“/ The under representation is computed by subtracting 
the percentage which Mexican Americans represent in the 

population from the percentage of the elected officials which 

they represent. In the present context, for example, Mexican 

Americans make up approximately 57% of the population but 
only 16.7% of the Justices on the Thirteenth Court of Appeals 
{1 of 6 is 16.7%). Thus Mexican Americans would have an 
under-representation of -40.3%. 

49 

 



  

In addition to these seven factors, Congress listed two others 

"which are less significant but which might have limited 

relevance in certain situations." Sierra v. El Paso I.S.D., 591 

F. Supp. 802, 807 (W.D. Tex. 1984). These are whether there is a 

significant lack of responsiveness on the part of elected 

officials and whether the policy underlying the electoral device 

is tenuous. S.Rep. No. 417 at 29° 1982 U.S. Code Cong." and Ad. 
News at 207. 

  

Lack of Responsiveness 

Responsiveness or lack thereof, goes to proving 

discriminatory intent in the maintenance of the 

electoral system... It has nothing to do with impact. 

"Whether current officeholders are responsive to black 

needs ‘and campaign © for black support is simply 

  

  

irrelevant to that inquiry." McMillan v. Escambia 

County, (Escapbia” 1) 638 F. 24 1239,::1249 (5th Cir. 
1981) 

N.A.A.C,P, vy, Gadsden County School Bd., 691 F. 24 978, 983 (5th 
Cir. 1982} 
  

It is well established that the issue of unresponsiveness is 

considerably less important under the results test of Section 2. 

Indeed in the Gadsden County case the Fifth Circuit completely 
  

ignored it. However, if the Plaintiffs can show that some of 

their important needs are being ignored or poorly served, it is 

evidence that "it is evidence that minorities have insufficient 

political influence to insure that their desires are considered 

by those in power. Hendrix v. / 558. F.. 20 y: 1268 
  

126% {( ithe Cir. 19 Ys Kirksey, (supra) 554 F. 2d at 143-146" 

United States v. Maringo County, (supra) 731 F. 2d at 1572. 
  

In the Maringo County case the Plaintiffs offered little in 
  

50 

 



  

the line of responsiveness proof. The 11th Circuit noted that: 

Unresponsiveness is of limited importance under Section 

2 for two reasons. First, Section 2 protects the 

access of minorities not simply the fruits of 

government but to participation in the process itself. 

Accordingly, evidence that officials meet the 

functional needs of minority citizens does not overcome 

the evidence that the minorities are excluded from 

political participation. Second, responsiveness is a 

highly subjective matter and this subjectivity is at 

odds with the emphasis of Section 2 on objective 

factors. The Senate Report states that "defendants’ 

proof of some responsiveness would not negate 

plaintiff’s showing by other, more objective factors 

enumerated here that minority voters were nevertheless 

shut out of equal access to the political process." 

1932 Senate Report at 29 n. 116, U.S. Code Cong. & 

Admin News 1982, p. 207 n. 116. The authors of the 

Senate Report apparently contemplated that 

unresponsiveness would be relevant only if the 
plaintiff chose to make it so [footnote omitted] and 

although a showing of unresponsiveness might have some 

probative value, a showing of responsiveness would have 

very little. 

  

  

  

In the matter before this Court, although the Plaintiffs do 

not have a burden to demonstrate poor performance */ on the part 

of the Judges, the high illiteracy rate, the low levels of high 

  

'"/ In the case of unresponsiveness or poor performance, 
Lhe Senate Report on Section 2 of the Voting Rights Act 

expressly disapproves of the view that unresponsiveness was 

an essential element of a voting dilution claim and stated 

moreover, that a showing of responsiveness did not negate 

plaintiff's claim. S.Rep, No. 417 at 29 n. 116, 1982 v0.8. 
Code Cong. & Ad. News at 207 n. 116. This statement would 

seem to change the suggestion of the Supreme Court in Lodge 
Vv. Buxton, 639:-F. 2d 1358, 1375 (5th Cir. 1981) aff’d sub nom 

Rodgers v. Lodge, 458 U.S. 613 (1982). 
  

  

51 

 



  

school and college graduates 

The Defendants Case. 

Here review number of MA who have run not apathy but 

realization that defeat a sure thing. Apathy not a defense etc 

The Defendants in cases such as this frequently argue that 

it is minority apathy which is the stumbling block. In support 

Of this they cite to the. fact that if just more minority group 

members would just come out and vote, then they could elect the 

candidates of their choice. However: 

Both Congress and the Courts have rejected efforts to 

blame reduced black participation on "apathy." The 

Senate Report states, 

"The courts have recognized that disproportionate 

educational [,] employment, income level[s,] and 

living conditions arising from past discrimination 

tend +o depress minority political. 

participation. .... Where these conditions are 

shown, and the level of black participation is 

depressed, plaintiffs need not prove any further 

causal nexus between their disparate socio- 

economic status and the depressed level of 

political participation." 

1982 Senate Report at 29 n. 114. See also Major v. Treen, 

1983, E.D. La,, 574 F. Supp. 325, 351 n.31 

United States v. Maringo County, (supra) 731 F. 2d at 1569. 

  

  

As the Fifth Circuit noted in Kirksey "the responsibility of 

defendants to permit minority voters a proper role in democratic 

52 

 



  

political life must be discharged by stronger stuff that gossamer 

possibilities of all variables falling into place and leaning in 

the same direction." Kirksey v. Board of Supervisors of Hinds 
  

County, 554 FF. 2d 139, 150 (5th Cir. 1977).cert. denied. 434 U.S. 

968 (1977). 

As always, the proof of this pudding is in the eating. 

Prior to the litigation concerning the State legislature, city 

council, school districts in various counties: Here set out all 

of the before and after litigation. The lines were drawn in such 

a way that Mexican Americans were the voting minority 

Anglo bloc voting could defeat Mexican 

American candidates. After reapportionment, Mexican Americans 

were the voting majority in of the districts. Ever 

since then of the city council members school trustees 

state legislators etc. have been Mexican American. 

In the at large context or where the districts are unfairly 

drawn minority candidates are not successful but where the 

districts are fairly drawn, they are able to elect candidates 

which represent the percentage that they are in the community as 
a whole. 

53 

 



      

Hernandez v,., Driscoll Consol. 1.S5.D., 2 Race Rel. L. Rept. 329 

(S.D. Tex. 1957) 
  

Hernandez v. State of Texas, 347 U.S. 475 (1954) (Discrimination 

against Mexican Americans found in grand jury selection process 

in texas) 

  

Hill v., Texas, 316 U.S. 400 (1942)   

Independent School District v. Salvatierra, 33 S.W. 2d 790 (Tex. 

Civ. App. San Antonio) cert. denied 284 U.S. 580 (1931) 
  

Jones v, City of Lubbock, 727 F. 2d 364 (5th Cir. 1984) (City of 

Lubbock, Lubbock County single member district case) 
  

Juarez Vv. State, 102 Tex. Crim.«297, 2777 S.W. 1091) (1925)   

Kiles v. City of Center, Ty—-80-19]1 (E.D. Tex. Tyler Div. July 1, 

1983) 
  

Rirksey v. Board of Supervisors, 554 F. 24 139 (5th Cir.) cert. 
denied, 434 U.S. 968 (1977) 
  

lipscomb v. Wise, 551, F. 24 1043, 437. 0.5. 535 (1978) 
  

LULAC v. Big Spring 1.8.D., CA-82~100 (W.D. Tex. Abeline Div. 

1982) (Big Spring 1.5.D., Howard County, single member district 
case) 

  

LULAC y. City of Big Springs, 1-%2-100W (N.D. Tex. Sept. .:.12, 

1982) (City of Big Springs, Howard County single member district 
case) 

  

LULAC -v, Corpus Christi 1.S.D., C-74~CA95 (5.D. Tex. Corpus Div, 

Jan. 14, 1981) «(Corpus Christi 1.5.D., Nueces County, single 
member district case) 

  

LULAC Vv, Midland 1.5,D,, 648. F. Supp. 596 {(W.D. Tex. 1986) aff'd 

B12 F. 24.1494 (5h Cir. 1987) (Midland I.8.D., Midland County, 

single member district case) 

  

LULAC v, Seguin I1.5.D., SA-83-CAa-222 (W.D. Tex. S.A. Div. 

1983) (Seguin I.S.D., Guadalupe County single member district 
case) 

  

54 

 



  

Lodge v. Buxton, 639:F. 24 1358 (5th Cir. 1981) 'aff’d sub nom 
Rodgers v. Lodge, 458 U.S. 613 (1982) 
  

  

McCarty .v. Henson, 749 FF, 2d 1134, (5th. Cir. 1984). .(N. Lamar 

1.3.D.~Lamar County) 
  

McMillan v. Escambia County, 688 F. 2d 960 (5th Cir. 1982)   

Martinez v. Becker, SA-73-315 (W.D. Tex. San Antonio Div.) (San 

Antonio, Bexas County single member district case settled after 

voting rights objection with a charter revision adoption of 

single member districts) 

  

Martinez v. Sonora, CA-83-0019 (N.D. Tex. San Angelo Div. 

1983) (City of Sonora, Sutton County single member district case) 
  

Mata v. Reed, V-82-16 (S.D. Tex. Victoria Div. June 16, 1982) 

(City of Victoria, Victoria County, single member district case) 
  

Mississippi v. United States, 490 F. Supp 569 (D.D.C. 1979) aff'd 

444 U.S. 1050 (1980) 
  

Monroe v, City of Woodville, 819 F. 2d 507 (5th Cir. 1987) 
  

Moore v. City of Beaumont, B-83-341 (E.D. Tex. Beaumont Div. Dec. 

13, 1983) 
  

Morales v. Floydada 1.5.D., CA-5-84-271 (N.D. Tex. Lubbock Div. 

1984) (Floydada I.S.D., Floyd County, single member district 

case) 

  

Mosley v. Sadler, 469 F. Supp. 563 (E.D. Tex. Beaumont Div. 1979) 

(City Council Port Arthur, Jefferson County) 
  

Muniz vv. Bero, "34 PF. 2d 697. (5th Cir. 1970) (Grand Jury 

selection process in County held unconstitutional) 
  

N.A.A.C.P. Dy Campbell v, Gadsden County School Bd., 691 F. 2d 

978 {11lth Cir. 19582) 
  

Olivares v., City of Tavior, A-84-CA-44 ({W.D. Tex. Austin Div. 

1987) (City of Taylor, Williamson County single member district 

case) 

  

Partida.y, Castaneda, 524 F. 2d 481 (5th Cir. 1975) aff'd sup 

nom. Casganeda Vv. Partida, 430 U.S. 482 (1977) (Grand ‘Jury 

selection process in Hidalgo County held unconstitutional) 

  

  

55 

 



  

Pena v. City of Snyder, CA-5-85-285 -(N.D. Tex. Lubbock Div. 

1986) (City of Snyder, Scurry County single member district case) 
  

Pana v. Snyder 1.5.,D,, CA-85-359 (N.D. Tex. Lubbock Div. 

1985) (Snyder I.S.D., Scurry County single member district case) 
  

Perez v. Sonora 1.S.D., Civil Action No. 6-224 (N.D. Tex. Nov. 5, 

1970) 
  

Political Civic Voters Association v. City of Terrell, 565 F. 

Supp. 338 (N.D, Tex. 1983) (City of Terrell, Xaufman County 

single member district case) 

  

Posada vy. Lamb County, 716 F. 2d 1066 (5th Cir. 1983) (Lamb 

County reapportionment case) 
  

Puente v, (Crystal City, Civil Action No DR~-70-CA-4 (W.D. Tex. 

April 3, 1974) (Property ownership requirement for candidacy held 

unconstitutional) 

  

Ramgs 'v. Koebig, 638 F. 24 838 (5th Cir. 1981) (City of Seguin, 

Guadalupe County, districts) 
  

Rendon v. levelland 1.S.D., CA-5-85-25 (N.D> Tex. Abilene Div. 

1985) (Levelland I.S.D., Hockley County, single member district 

case) 

  

Reynolds v, Simms, 377 U.S. 533 (1954) 
  

Robinson Vv. City of Jefferson, M-81-107 (E.D. Tex. April 2s, 
1983) (City Council single member district case against City of 

Jefferson, Marion County) 

  

Robinson v. Commissioners Court of Anderson County, 505 F. 2d 674 

(5th Cir. 1974) (Reapportionment case against Anderson County 
Commissioners’ Court) 

  

Robinson v, Rodgers, TY-7572 (E.D. Tex. Tyler Div. Yo (City of 

Palestine, Anderson County, single member district case) 
  

Rodriguez v. Brown, 437 F. 2d :34 (5th Cir. 1971) (Grand Jury 

selection process in Bexas County held unconstitutional) 
  

Rodriguez v. Calhoun I.S.D., V-83- (S.D, Tex... Victoria Div. 

1983) (Calhoun I.S.D., Calhoun. County, single member district 
  

56 

 



      

A » 

case) 

Rodriguez v., Hondo 1.S.D., SA-87~CA0082 (W.D. Tex. 1987) 

(Hondo I.S.D., Medina County, single member district case) 
  

Roman v. Reynolds Metals Co., 368 F. Supp. 47 (S.D. Tex. 1973) 

(Violation of Title VII found against large employer in COrpus 

Christi, Nueces County) 

  

Ruiz v. Wheeler, C.A. V-88~17 (S.D. Tex Victoria Div.)   

Rybicki v. State Board of Elections, 574 F. Supp. 1147 (N.D. Ill. 

1983) 
  

Salinas v. City of Littlefield, CA 85-260 (N.D. Tex. Lubbock Div. 

Jan 23 1987) (City of Littlefield, Lamb County, single member 

district case) 

  

Salinas v. Littlefield I1.S.D., CA-5-85-144 (N.D. Tex. Lubbock 

Div. 1984) (Littlefield 1I.S.D., Lamb County, single member 

district case) 

  

Sanchez v. McDaniel, 615 F. 2d 1023 (5th Cir. 1980). aff'd 452 

U.S. 130 (1981) (Reapportionment of Kleberg County and related 

Section 5 issues) 

  

Saucedo v. Brothers Well Service, 464 F. Supp. 919 (5.D. Tex. 

1979) 
  

Sierra v, El Paso 1.85.D., 591 F.Supp. 802 (tW.D. Tex. 1934) AE] 

Paso I.S.D. single member district case) 
  

Smith vv. Allwright, 321. 0.8. 649 { ) (White Primary held 
unconstitutional) 
  

Smith v. Texas, 311 U.5. 128 (1940)   

Sorola v. City Of Littlefield, CA-85-260 (N.D. Tex. Lubbock Div. 

1987) (City of Littlefield, lamb County single member 
district case) 

  

  

Sorola v., Lamesa 1.S.D., CA-82-168 (N.D. Tex. Lubbock Dlv. 

1982) (Lamesa I.S.D., Dawson County single member district 
case) 

Square v. Halbert, Ty-75-74 (E.D. Tex. Tyler Div. April 143, 1976) 
  

57 

 



    

@ » 

Susaman v. Herford I.S.D., CA-2-83-226 (N.D. Tex. Amarillo Div. 

1983) 
  

Terry v. Adams, 345 U.S. 461 (1953) (Jaybird primary process in 

Texas counties held unconstitutional) 
  

Thornburg v. Gingles, U«S.* , :106 S.Ct. 2765 n.,>13. {198 )   

Torres  v, City of New Braunfels, S.A. 83-643. (W.D, Tex. San 
Antonio Div. 1983) (City of New Braunfels, Comal County single 

member district case) 

  

Trevino v. Celanese Corp., 701:F. 2d 397 (5th Cir. 1983) (Title 

VII case against large employer in Kleberg County pending 

decision) 

  

U.Jd.0. v. Carey, 430 U.S. 144 (1977)   

U.S. v, City Commiss.on of Texas City, G-77-78 (5.D. Tex. 

Galveston Div. Feb. 21, 1978) (Texas City, Galveston County, 

single member district case) 

  

U.S. v. Dallas County Alabama Commissioners, 739 F. 2d 1529 (11th 

Cir. 1984) 
  

United States v. Marengo County, 731 F. 2d 1546 (1lth Cir. 1984) 
  

U.S, wv, Temple I1.S5.D., CA-W-79-10 (W.D. Tex. Waco Div. ) 

(City of Temple single member district case) 
  

United States v. Texas, 252 F. Supp. 234 (W.D.Tex. 1966) aff’d 

384 U.S. 155 (1966) (Texas Poll Tax held unconstitutional) 
  

United States v. Texas, 342 F. Supp. 24 (E.D. Tex. 1971)   

U.S, v.'Uvalde C.I.5.D,, 625 F. 2d. 547: (5th Cir. 1980) settled 

on remand DR-77-CA-20 (W.D. Tex. Del Rio Div. ) (Uvalde 

I.S.D., Uvalde County single member district case) 

  

VasgquezZ v, City of Abilene, 725 P.. 24 1017 (5th Cir. 1984) 
  

Vasquez. Vv. City of wichita Falls, CA 7-84-1333 (N.D. Tez. July 29, 

1985) 
  

Villalobos v. Lockhart 1.5.D., A-87-CA-526 (W.D> Tex. Austin Div. 

1987) «( Caldwell County) 
  

58 

 



  

\ * 

VOTA v. Dean, (S.D. Tex. Brownsville Div. )   

Washington v. Tensas Parish School Board, 819 F. 2d 609 (5th Cir. 
1987) 
  

Watson v. Commissioners Court of Harrison County, 616 F. 2d 105 

(5th Cir...1980) 
  

Weaver v. Commissioners’ Court ; 
  

Weaver v. Muckleroy, CA-5524 (E.D. Tex. Tyler Div. 1975) 
  

White v. Regester, 412 U.S. 755 (1972) 
  

Wilson v. City of Marshall, M-83-137 (E.D. Tex. Marshall Div. May 

8, 1985) (Single member district case against City of Marshall, 

Harrison County) 

  

Zimmer v. McReithen, 485 F 2d 1297 «5th Cir. 1973) 
  

Davidson and Korbel, At-Large Elections and Minority Group 

59