Texas Way of Electing Judges is Upheld (The Times)

    "National" 

1990 

THE TIMES 
September 29, 

  

Texas Way of Electing Judges Is Upheld 
  

By RONALD SMOTHERS 
Special to The New York Times 

ATLANTA, Sept. 28 — A Federal ap- 
peals court in New Orleans ruled over- 
whelmingly today that the 1965 Voting 
Rights Act did not apply to the election 
of state judges. 

The ruling, by the United States 
Court of Appeals for the Fifth Circuit, 
upheld the Texas system of electing 
district judges by countywide voting 
and the Louisiana method of electing 
state Supreme Court judges by dis- 
tricts. 

Civil rights groups sharply criticized 
the ruling, calling it a major setback in 
the effort to remove discriminatory 
practices from the political process. 
They contended that the practice of 
electing judges at large, rather than in 
specific districts, diluted the strength 
of minority voters. 

But Renea Hicks, Texas's Deputy At- 
torney General, applauded the court’s 
12-to-1 ruling. He that it prevented the 
Federal Government from ordering 
states to redraw judicial districts with- 
out proof that the system was a deliber- 
ate attempt to discriminate. 

“The Federal courts can still ad- 
dress discrimination that is deliberate 
and intentional under the 14th Amend- 
ment,” Mr. Hicks said, “and this ruling 
doesn’t change that. You just can’t 
have Federal courts intervening in the 
way states reconfigure their judicial 
systems.” 

Departure From Precedent 

Today's decision affects only the 
states in the Fifth Circuit: Louisiana, 
Mississippi and Texas. 

It was a clear departure from sev- 
eral unchallenged lower court deci- 
sions, even within the Fifth Circuit. 
More than two years ago, for example, 
a Federal district judge in Mississippi 
ruled that the Voting Rights Act ap- 
plied to judicial elections, and when the 
state chose not to appeal his ruling, the 

| judge, William H. Barbour Jr., redrew 
| judicial districts in a way that has in- 
| creased the number of minority judges 

in Mississippi. 
The Fifth Circuit ruling was also in 

| conflict with a ruling by the United 
States Court of Appeals for the Sixth 
Circuit, based in Cincinnati. That court 
ruled in 1988 that the Voting Rights Act 
applied to judicial elections. 

Consequently, lawyers on both sides 
| of the issue predicted today that the 
current case was likely to be taken up 
soon by the Supreme Court. 

f “I think the ruling is so out of step 
| with what other courts have said that it 
| presents a compelling case for U.S. Su- 
| preme Court review,” said Frank 
Parker, director of the Voting Rights 

    

  
Project of the Lawyers Committee for 
Civil Rights Under Law. 

Appeal Is Promised 

John T. Garcia, Texas state director 
of the League of United Latin Amer- 
ican Citizens, which brought the suit 
against the Texas system, said his 
group would appeal the decision. 

In its suit, the group alleged discrimi 
nation in the system of electing Judges 

  

Civil rights , 
groups lose a 
round in Federal 
court. 
  

Justice Department argued that Sec- 
tion 2 of the Voting Rights Act applied 
to state judicial offices. 

Emphasis on Language 

In the court’s majority opinion today, 
Judge Thomas Gibbs Gee said the 
judges concluded that the Voting 
Rights Act of 1965 and its Section 2 
amendment, passed in 1982, Soplisd 
only to elections of the legislative an 
executive branches. The court repeat- 
edly examined the act and the amend 
ment and the Congressional debate on 
them, he said, and could not find a spe- 
cific inclusion of judicial offices. 

The language, said Judge Gee, an ap- 
pointee of President Richard M. Nixon, 
referred constantly to “representa- 
tives.” Had Congress chosen to use a 
more inclusive term like “state offi- 
cial,” he said, the court might have 
been prompted to include the judiciary 
within the act’s scope. 

“Had Congress, then, meant to ex- 
clude votes in judicial elections from 
the ambit of its results test, it could 
scarcely have done so more plainly 
than by adopting the term ‘representa- 
tive’ to describe that ambit,” Judge 
Gee wrote. 

‘A Scar on the Flesh’ 

In a scathing dissent that took the 
court to task for being “inconsistent” 
and turning its back on an “enlightened 
interpretation of civil rights legisla- 
tion,” Judge Sam D. Johnson said the 
judges had “mutilated and rudely 
abandoned precedent.” 

“The majority’s isolated opinion 
stands as a burning scar on the flesh of] 
the Voting Rights Act," wrote Judge 
Johnson, an appointee of President 
Jimmy Carter. “The majority opinion, 
is not simply wrong; it is dangerous.”   

Sherrilyn Ifill, a lawyer with the 
NAACP Legal Defense and Education 
Fund, which represented black groups 
in the Texas case, said the decision 
seemed to fly in the face of other court 
decisions and to adopt the view that 
Congress meant to allow discrimina- 
tory election systems for judges while 
barring them for other elected offi- 
cials. 

Mr. Parker said the ruling ‘“‘shows 
the impact of the Nixon-Reagan-Bush 
conservative appointments to the 
courts.” 

But when the Texas case was argued before the appellate court in June, John Dunne, the assistant United States at- torney for civil rights, came to New Or- leans to present the Justice Depart- ment’s argument on behalf of applying the Voting Rights Act to judicial races. And last month Mr. Dunne announced that the department would join black plaintiffs in Georgia who were chal- lenging that state's judicial districts as discriminatory and illegal under the Federal Act. Georgia is part of the 11th Circuit, based here in Atlanta. 

Frank Kelly, a spokesman for the de- partment’s civil rights division, said to- day that the department was reviewing the appellate court’s decision. 
A Divided Court 

Fourteen judges heard arguments in the case, but at the last moment one did not participate in the ruling 

Seven judges concurred in the ma- 
jority opinion, which said the Voting 
Rights Act did not apply to any state 
judicial elections. Four other judges 
said the act did not apply to elections of 
judges at the trial level, but did apply 
to election of judges to state appeals 
courts. Yet another judge concurred 
with the majority for different reasons. 
Then there was Judge Johnson's dis- 
sent. 

The ruling was all the more curious 
because as recently as two years agoa 
three-judge panel of the Fifth Circuit 
ruled unanimously in Chisom v. 
Roemer that the Voting Rights Act ap- 
plied to judicial elections. 

in nine urban counties. A Federa judge 
in Texas ruled in its favor but was 
overruled by a three-judge panel of the 
Fifth Circuit. The panel then asked the 
entire court to review its decision. 

In both the Texas case and the 
Louisiana case, Chisolm v. Roemer, th 
civil rights division of the United tng