League of United Latin American Citizens (LULAC), Council #4434 v. Mattox Supplemental Brief on Rehearing En Banc of Plaintiff-Intervenor-Appellees

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IN THE
UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 90-8014 SEP 2  2 1990
LEAGUE OF UNITED LATIN AMERICAN 
CITIZENS (LULAC), COUNCIL #4434, 
et al.,

Plaintiffs-Appellees,
HOUSTON LAWYERS' ASSOCIATION, 
et al.,

Plaintiff-Intervenor- 
Appellees,

V.
JIM MATTOX, et al..

State Defendants- 
Appellants,

JUDGE SHAROLYN WOOD AND 
JUDGE F. HAROLD ENTZ,

Defendant-Intervenor- 
Appellant.

Appeal from the United States District Court for the Western 
District of Texas, Midland-Odessa Division

SUPPLEMENTAL BRIEF ON REHEARING EN BANC 
OF PLAINTIFF-INTERVENOR-APPELLEES 

HOUSTON LAWYERS' ASSOCIATION, et al.
JULIUS LeVONNE CHAMBERS 
SHERRILYN A. IFILL

99 Hudson Street, 16th Floor 
New York, New York 10013 
(212) 219-1900

GABRIELLE K. MCDONALD
301 Congress Avenue 
Suite 2050 
Austin, Texas 78701 
(512) 320-5055

Of Counsel:
MATTHEWS & BRANSCOMB 
A Professional Corporation



TABLE OF CONTENTS
TABLE OF AUTHORITIES........................................ ii
SUPPLEMENTAL STATEMENT OF FACTS ............................  1

* INTRODUCTION AND SUMMARY OF THE ARGUMENT ..................  2
SUMMARY OF THE ARGUMENT....................................  3
ARGUMENT ..................................................  6

I. Section 2 Covers the Election of Judges ..........  6
II. The Application of Section 2 is Not Dependent on the

Function of the Elected Officer ..................  11
A. The Trial Judges in the Challenged Counties Are

Not Single Person Officers ..................  13
2. Butts Does Not Support Limiting Section 2's

Scope to Collegial Decision-Makers . . .  17
3. Butts Erroneously Interprets Amended §2 . 18

III. Remedial Concerns Are Not Properly Addressed at the
Liability Stage of a Voting Rights Case ........  21

A. The Proper Scope of the Liability Inquiry . . .  22
B. The LULAC Panel's Analysis of Sub-Districts

as a Remedy is Critically F l a w e d ............ 23
1. The LULAC Panel's Analysis of the 

Plaintiffs' District Plan Fails on Its
Own T e r m s ................................ 2 5

C. The LULAC Panel's Focus on a Sub-Districting
i Remedy is Particularly Inappropriate in

This C a s e .................................... 28
I 1. Limited Voting.......................... 3 0

2. Cumulative Voting ....................  32
IV. The District Court's Finding of a §2 Violation is

Not Clearly Erroneous .................... 32
CONCLUSION................................................ 3 6 l

l



TABLE OF AUTHORITIES
CASES

Bell v. Southwell, 376 F.2d 659
(5th Cir. 1967) ..................................  20, 21

Blaikie v. Power, 13 N.Y.2d 134,
243 N. Y. S . 2d 185 (1963)................................  31

Bolden v. City of Mobile, 571 F.2d 238 rev'd on other grounds,
Mobile v. Bolden, 446 U.S. 55 (1980) ..................  15

Buchanan v. City of Jackson, 683 F.Supp.
1515 (W.D. Tenn., 1988) ..............................  15

Butts v. City of New York, 614 F.Supp. 1527 (S.D.N.Y. 1985) . 13
Butts v. City of New York, 779 F.2d

141 (2d. Cir. 1985).......................... 11, 19, 21
Campos v. City of Baytown, 840 F.2d 1240,1243 

(5th Cir. 1988) cert denied 109 S. Ct.
3213 (1989)....................................  2, 6, 35

Carrollton Branch of NAACP v. Stallings, 829 F.2d
1547 (11th Cir. 1987)cert, denied sub nom. Duncan v. 
Carrollton. 485 U.S. 936 (1988) ......................  10

Chisom v. Edwards, 839 F.2d 1056,
cert denied, 109 S.Ct. 390 (1988) ................  passim

Cintron-Garcia v. Romero-Barcelo, 671 F.2d
1,6 ( 1st Cir. 1982) ................................  31

Citizens for a Better Gretna v. City of Gretna,
636 F.Supp. 1113, (E.D. La. 1986), aff'd,
834 F. 2d 496 (5th Cir. 1987) ..........................  35

City of Port Arthur v. United States,
459 U.S. 159 (1975)....................................  18

City of Richmond v. United States, 422 U.S. 358 (1975) . . . .  18
Cox v. Katz, 22 N.Y.S.2d 545 (1968) ........................  28
Dillard v. Chilton County Bd. of Educ., 699 F.Supp.

870 (M.D. Ala. 1988) . ............................... 29

iii



Dillard v. Crenshaw County, 831 F.2d 246
(11th Cir. 1987)............................ 12, 22, 29

Dillard v. Town of Cuba, 708 F.Supp. 1244 (M.D. Ala. 1988) . . 29
Gingles v. Edmisten, 590, F.Supp. 345 (E.D. N.C. 1984) . 35, 36
Gray v. Sanders, 372 U.S. 368 (1963)........................  21
Haith v. Martin, 477 US 901 (1986)..........................  13
Hechinger v. Martin, 411 F.Supp.

650 (D.D.C 1976) aff'd per curiam
429 U.S. 1030 (1977) ..................................  31

Holhouser v. Scott, 335 F.Supp. 928 (M.D.N.C. 1971) ........  28
Kaelin v. Warden, 334 F.Supp. 602 ..........................  31
Kirksey v. Allain, 635 F.Supp. 347 (S.D. Miss., 1986) . . . .  13
Kirksey v. City of Jackson, Miss., 663 F.2d.,

659 (5th Cir. 1981) rehearing and 
rehearing en banc denied 669 F.2d.
316 (5th Cir. 1982).....................................37

LoFrisco v. Schaffer, 341 F.Supp. 743 (D. Conn., 1972) . . . .  31
LULAC v. Mattox, No. 90-8014, (May 11, 1990) . ........... passim
LULAC v. Midland ISD, 812 F.2d 1494,

(5th Cir. 1987), vacated on other grounds,
829 F. 2d 546 (5th Cir. 1987)   35

Mallory v. Eyrich, 839 F.2d 275 (6th Cir. 1988)  8
Martin v. Allain, 658 F.Supp. 1183 (S.D. Miss 1987)   11
Martin v. Allain, 700 F.Supp. 327 (S.D.Miss. 1988) . . . 22, 28
Martin V .  Haith, 477 U.S. 901 (1986), aff'g. 618 F.Supp.

410 (E.D.N.C.1985) ....................................  7
Nipper v. U-Haul, 516 S.W.2d 467 (Tex. Civ. App. 1974) . . 27, 28
Orloski v. Davis, 564 F.Supp. 526 (M.D. Pa. 1983)   31
Overton v. City of Austin, 871 F.2d 529,

538 (5th Cir. 1989)................................  6, 35
Reed v. State of Texas, 500 S.W.2d 137

(Tex. Crim. App. 1973) ..........................  27, 28
iv



SCLC v. Siegelman, 714 F.Supp. 511, (M.D. Ala. 1989) . . . 14, 15
Smith v. Allwright 321 U.S. 649 (1944)...................... 2
Solomon v. Liberty County, No. 87-3406

(11th Cir. April 5, 1990)..............................  36
Terry v. Adams 345 U.S. 461 (1952).......................... 2
Thornburg v. Gingles, 478 U.S. 30 (1986)................ passim
Upham v. Seamon, 456 U.S. 37 (1982) ........................ 2
White v. Regester, 412 U.S. 755 (1973)..................  2, 38
Whitcomb v. Chavis 403 U.S. 124 (1971)....................  38
Voter Information Project v. City of

Baton Rouge, 612 F.2d 208 (5th Cir., 1980) ........ 38, 39
Zimmer v. McKeithan 485 F.2d 1297 (5th Cir. 1973) ..........  38

STATUTES

Voting Rights Act, 42 U.S.C. §1973 ....................... passim
Tex. Gov't Code §74.047 (Vernon 1988) ....................  .16
Tex. Gov't Code §74.091 (Vernon 1988 & Supp.1990) ..........  16

LEGISLATIVE

House Report No. 97-227, 9th Cong., 1st Sess.,
at p. 19 (1982) ..............................  2, 20, 37

S. Rep. No. 97-417, 97th Cong.,
2nd Sess., at p. 30 (1987)........................passim

Voting Rights: Hearings Before Subcommittee No. 5
of the House Judiciary Comm., Testimony of 
Attorney General Katzenbach, 89th Cong.,
1st Sess. (1965) ......................................  7

v



OTHER

Issacharoff, The Texas Judiciary and
the Voting Rights Act: Background
and Options, at 18, Texas Policy Research
Forum (December 4, 1989) .............. 30, 31

Karlan, Maps and Misreadings: The Role
of Georgraphic Compactness in Racial 
Vote Dilution Litigation, 24 Harv. 
C.R.-C.L.L.Rev. 173 (1989) . . . . 30, 32

Office of Court Administration, Texas Judicial
Council, Texas Minority Judges, Feb. 10, 1989 2

R. Engstrom, D. Taebel & R. Cole, Cumulative
Voting as Remedy for Minority Vote Dilution:
The Case of Alamogordo, New Mexico, The Journal
of Law & Politics, Vol. V., No. 3 (Spring 1989) . . . 29, 32

State Court Organization 1987, National
Center for State Courts, 1988 ..........................  2

vi



SUPPLEMENTAL STATEMENT OF FACTS

Plaintiff-intervenor appellees Houston Lawyers' Association, 
et al. , directs this court to the Statement of Facts which appears 
in their original Brief on Appeal, as well as the Statement of 
Facts in the original Brief on Appeal for the United States as 
Amicus Curiae, describing in detail the structure of the court 
system in Texas.

SUPPLEMENTAL STATEMENT OF THE CASE
Plaintiff-intervenor appellee Houston Lawyers' Association 

incorporates by reference the Statement of the Case which appears 
in its original Brief on Appeal, and supplements that statement as 

follows.
This case was heard on appeal before a panel of the Fifth 

Circuit on April 30, 1990. On May 11, 1990, the panel issued an
opinion reversing the decision of the district court. That panel 
opinion did not address the district court's finding that African- 
American voters in Harris County, Texas do not enjoy an egual 
opportunity to elect their preferred candidates to the judiciary. 
Rather, the panel opinion, relying principally on Second Circuit 
case law, held that the election of trial judges cannot be 
challenged under §2 of the Voting Rights Act of 1965, 42 U.S.C. 
§1973, because trial judges are independent decisionmakers.

On May 16, 1990, this court, sua sponte, vacated the panel
opinion and ordered that the case be heard in banc. Oral argument



was set by the court for June 19, 1990. The parties were invited 
to file simultaneous supplemental briefs to the court on or before 

June 5, 1990.

INTRODUCTION AND SUMMARY OF THE ARGUMENT 

INTRODUCTION
Texas has a long history of enacting and maintaining electoral 

structures and practices which inhibit the political and electoral 
participation of African Americans and other minorities. See, 
Smith v. Allwriaht. 321 U.S. 649 (1944); Terry v. Adams, 345 U.S.
461 (1953); White v. Regester. 412 U.S. 755 (1973); Upham_Vj_
Seamon. 456 U.S. 37 (1982); Campos v. City of Baytown, 840 F.2d
1240 (5th Cir. 1988). See also House Report No. 97-227, 9th Cong., 
1st Sess., at p. 19 (1982) [hereinafter "House Report"]. The case 
before this court challenges the electoral structure of one of the 
last nearly all-white elected bodies in the Texas government —  the 

judiciary.
Of the 9,977 appellate and general jurisdiction trial court 

judges in the United States, 6,466 are elected to office. State 
Court Organization 1987. at 127-142, 271-302, National Center for 
State Courts, 1988. These judges are elected in nearly forty 
states across the county. .Id. at 7-10. In Texas alone, there are 
375 elected district court trial judges. Only 7 of these judges 
are African American. Office of Court Administration, Texas 
Judicial Council, Texas Minority Judges, Feb. 10, 1989. In Harris

2



County, the largest and most populous judicial district in the 
State, only 3 African Americans have ever served as district 
judges. African Americans, however, make up nearly 20% of the 
population of Harris County, and 18% of the voting age population.

Under the current county-wide method of electing district 
judges, African American voters are submerged in a district of 
nearly 2.5 million people and over 1,200,000 registered voters. 
Because white voters in Harris County district judge elections do 
not vote for African American judicial candidates who face white 
opponents, African American voters in the county cannot elect their 
preferred representatives to the bench.

If based on these facts and those in the record, this case 
involved a challenge to city council elections, the district 
court's judgment would have been upheld, and this case would be 
before the district court for a determination of the appropriate 
remedy. But alone among all appellate courts, a panel of this 
court has created an exemption for the election of trial judges 
from the strictures of §2 of the Voting Rights Act.

SUMMARY OF THE ARGUMENT
As "the major statutory prohibition of all voting rights 

discrimination" in the United States, Senate Report No. 97-417, 
97th Cong., 2nd Sess., at p. 30 (1982) [hereinafter "S. Rep."] §2 
of the Voting Rights Act of 1965, 42 U.S.C. §1973, prohibits the 
use of discriminatory election structures and practices in every

3



election in which electors are permitted to cast votes. Section 
2 of the Voting Rights Act is violated whenever electoral 
structures or procedures "result in a denial or abridgement of the 
right of any citizen of the United States to vote on account of 
race or color." 42 U.S.C. §1973.

Congress intended §2 of the Voting Rights Act to be 
comprehensive in scope and application. The only limiting language 
in the Act cautions that lack of proportional representation does 
not constitute a §2 violation. Congress did not exempt, neither 
explicitly nor implicitly, particular elected offices from the 
purview of the Act. In particular, the Act covers the election of 
judges - both appellate and trial. Nothing in the legislative 
history indicates that Congress intended to exclude nearly 10,000 
elected offices from the reach of African American voters. In 
fact, the legislative history of the Act makes reference to both 
the election of judges and the creation of judicial districts. 
Almost all of these references are to trial judge elections and 
districts. See discussion in original Brief on Appeal for the 
United States as Amicus Curiae at 16-17, LULAC v. Mattox, No. 90- 
8014 (May 11, 1990).

The Act also applies to the election of single-person 
officers, or offices for which only one person is elected in the 
geographical district. There is no legislative history to the 
contrary.

The Supreme Court has instructed that in order to prevail in 
a §2 claim, plaintiffs must show: that the minority population in

4



the challenged district is sufficiently large and geographically 
compact to constitute a majority in a fairly drawn single-member 
district; that the minority group in the district is politically 
cohesive; and that whites in the district vote sufficiently as a 
bloc so as to usually defeat the candidate of choice of minority 
voters, absent special circumstances. Thornburg v. Gingles, 478 
U.S. 30, 50-51 (1986). Once plaintiffs have made this threshold 
showing, they may further support their claim by demonstrating 
through objective factors, how the challenged electoral structure 
"interacts with social and historical conditions to cause an 
inequality in the opportunities enjoyed by black and white voters 
to elect their preferred representatives." Id. at 47. To guide 
courts in their analysis, Congress has provided a list of objective 
factors which, if proven, tend to support the existence of 
impermissible vote dilution. Most important among these factors 
is the extent to which minorities have been elected to office in 
the challenged jurisdiction and the existence of racially polarized 
voting. Gingles, 478 U.S. at 45 n.15. While this list is not 
exhaustive, Congress specifically excluded highly subjective 
factors from consideration. House Report at 30.

In proving the first prong of Gingles, plaintiffs are not 
required to provide the court with actual remedial plans to cure 
the alleged violation. Therefore, remedial concerns based on the 
plaintiffs' illustrative plans are not a basis for rejecting a 
liability finding. The trier of fact must limit its liability 
determination to the "impact of the contested structure or practice

5



on minority electoral opportunities." Gingles. 478 U.S. at 44.
Plaintiffs may prove the existence of the second and third 

prong of the Gingles test through standard statistical analyses for 
determining racial vote dilution, supported by lay testimony. See 
Gingles. 478 U.S. at 53 n.20. Accord Overton v. City of Austin, 
871 F.2d 529 (5th Cir. 1989); Campos v. City of Baytown, 840 F.2d 
1240 (5th Cir. 1988), cert. denied. 109 S.Ct. 3213 (1989). 
Congress deliberately excluded subjective inquiries into the 
motives of white voters who do not vote for African American 
candidates from the proper scope of a vote dilution analysis.

In the case at hand, the district court, based on the record 
and the proper application of the relevant law, correctly found 
that the county-wide election of district judges in Harris County 
violates §2 of the Voting Rights Act.

ARGUMENT

I. Section 2 Covers the Election of Judges
There is no reason for this court to reconsider the issues 

briefed, argued and decided in Chisom v. Edwards, 839 F.2d 1056, 
(5th Cir. 1988), cert, denied. 109 S.Ct. 390 (1988). Chisom1s
conclusions were based on an exhaustive analysis of "the language 
of the [Voting Rights] Act itself; the policies behind the 
enactment of section 2; pertinent legislative history; previous

6



judicial interpretations of section 5, a companion section to 
section 2 in the Act; and the position of the United States 
Attorney General on this issue." 839 F.2d at 1058. Both the 
Chisom and LULAC panels' comprehensive review of the relevant 
legislative history of amended §2 found no indication that Congress 
contemplated the creation of an exemption for elected judges from 
the purview of §2. This court's decision in Chisom therefore 
applied the general and undisputed principle that Congress intended 
the Voting Rights Act to cover "[e]very election in which 
registered electors are permitted to vote"1 to the particular 
elections at issue in that case (Louisiana Supreme Court Judges). 
The defendants in this case raise no new arguments or subseguent 
history which could alter this court's holding in Chisom that 
judicial elections are covered by §2.

Every appellate court to address the issue has concluded that 
judicial elections are covered by the Voting Rights Act. See 
Martin v. Haith, 477 U.S. 901 (1986), aff'g, 618 F.Supp. 410 
(E.D.N.C 1985)(three judge court) (holding that §5 covers the

Voting Rights; Hearings Before Subcommittee No. 5 of the 
House Judiciary Comm., Testimony of Attorney General Katzenbach, 
89th Cong., 1st Sess. (1965) [hereinafter "House Hearings"]. 
Section 14 (c)(1) of the Act defines "voting" for purposes of the 
Act as:

all action necessary to make a vote effective in any 
primary, special or general election, including, but not 
limited to, registration, listing pursuant to this sub­
chapter or other action required by law prerequisite to 
voting, casting a ballot, and having such ballot counted 
properly and included in the appropriate totals of votes 
cast with respect to candidates for public or party 
office and propositions for which votes are received in 
an election.

7



election of superior court trial judges in North Carolina) ; 
Mallorv v. Evrich. 839 F.2d 275 (6th Cir. 1988) (holding that §2 
covers the election of Cincinnati municipal trial judges); LULAC 
v. Mattox. No. 90-8014, (May 11, 1990) [hereinafter "LULAC Panel 
Op."] (holding, in relevant part, that judicial elections are 
covered by §2), vacated and reh'g en banc granted (May 16, 1990); 
Chisom v. Edvards. 839 F.2d 1056 (5th Cir. 1988), cert, denied, 109 
S.Ct. 390 (1988) (holding that §2 covers judicial elections). Cf. 
Voter Information Project v. City of Baton Rouge, 612 F.2d 208 (5th 
Cir. 1980) (holding that intentionally discriminatory election 
scheme for Baton Rouge trial judges violates Fifteenth Amendment).

* * * * * *

The defendants' argument that the election of trial judges, 
in particular, must be exempt from the strictures of the Voting 
Rights Act has never been endorsed by any court. Even the panel 
majority in LULAC concedes that there is no rationale for drawing 
a distinction between trial judges and other judges for the 
purposes of §2 coverage. LULAC. Panel Op. at 24.

In LULAC. the plaintiffs prevailed in the district court on 
proof of discriminatory results.2 In Voter Information Pronect, 
the plaintiffs proceeded under the Fifteenth Amendment intent

discriminatory intent in violation of §2 may be proven 
"through direct or indirect circumstantial evidence, including the 
normal inferences to be drawn from the foreseeability of 
defendant's actions." S.Rep. at 27 n.108.

8



standard. In essence, therefore, the only difference between the 
cause of action brought in Voter Information Project and the cause 
of action in LULAC is the intent behind the adoption and 
maintenance of at-large judicial systems.

The defendants and the LULAC panel view the absence of intent 
as fatal to the LULAC plaintiffs' claim under §2. Apparently, if 
the plaintiffs in LULAC had presented "smoking gun" evidence of 
the existence of an intentionally discriminatory motive in the 
enactment of the county-wide district judge election system in 
Texas, defendants would concede that this method of election would 
violate both §2 and the Fifteenth Amendment. See LULAC, Panel Op. 
at 34 n.10. Absent such a showing of intent, the defendants and 
the LULAC majority argue that §2 cannot be applied to the election 
of trial judges.

But Congress has specifically instructed that the presence or 
absence of discriminatory intent is irrelevant to the question 
whether §2 has been violated. The very essence of amended §2 
negates the relevance of intent. See House Report at p. 29-30. 
Therefore, given that this Court has found that the election of 
trial judges may not intentionally discriminate against African 
American voters, a trial judge electoral system that results in 
African Americans having an unequal opportunity to participate and 
elect candidates of their choice must be an equally invalid under 
§2. No other of the Act interpretation is consistent with 
Congress' intent in amending §2 and this court's prior 
interpretation of vote dilution law. The LULAC panel mistakenly

9



relies on Carrollton Branch of NAACP v. Stallings, 829 F.2d 1547
(11th Cir. 1987), cert, denied sub nom. Duncan v. Carrollton, 485 
U.S. 936 (1988) to support its distinction between the application 
of the Voting Rights Act to intentionally discriminatory electoral 
structures and its in—applicability to electoral schemes which 
result in an unequal opportunity for African Americans to elect 
their candidates of choice. The LULAC panel interprets Stallinqs 
to hold that a single-person office may be challenged on grounds 
of racial discrimination only if such a challenge is based on a 
claim of impermissible intent. LULAC. Panel Op. at 34 n. 10. This 
reading of Stallings is clearly contradicted at the very outset of 
the Stallings opinion: "[w]e consider the single-member county 
commission here to be in all essential respects comparable with the 
multi-member district discussed by the court in Gingles." 829 F_.2d 
at 1549 (referring to Thornburg v. Gingles, 478 U.S. 30 (1986)). 
The court in Stallings then engages in an exhaustive review and 
analysis of the results test under Gingles for determining whether 
the one person commissioner form of government in Carroll County 
violates §2. 829 F.2d at 1553-1562. Finally, the Eleventh Circuit 
remanded the case to the district court, not only because it found 
a constitutional violation, but also "for consideration in light 
of Gingles." and its interpretation of the test set out in 
Gingles. 829 F.2d at 1563. See also LULAC. Dissent at 5, n.4. 
Both the trial court's and the Eleventh Circuit's reliance on 
Gingles makes clear that Stallings did not require proof of intent.

10



II. The Application of Section 2 Does Not Depend on the
Function of the Elected Officer

At its core, this Court's decision in Chisom is a rejection
of the view that the function of the elected officer determines
the applicability of section 2. The court in Chisom specifically
disavowed the approach advocated by the defendants, which focussed
on the function of the elected officer as determinative of the
applicability of section 2. The Chisom panel, finding the
defendants' view "untenable" 839 F.2d at 1063, explained that:

Judges, while not 'representatives' in the 
traditional sense, do indeed reflect the 
sentiment of the majority of the people 
as to the individuals they choose to entrust 
with the responsibility of administering 
the law.

Id. The Chisom panel endorsed the view of the court in Martin v 
Allain. 658 F.Supp 1183 (S.D. Miss 1987), that §2's use of the word
representatives "denotes anyone selected or chosen_by_popular
election from among a field of candidates to fill an office, 
including judges." 839 F.2d at 1063,(emphasis added) (quoting 
Martin v. Allain. 658 F.Supp at 1200). Chisom never referred to 
the function of the Louisiana Supreme Court judges as "collegial" 
decision-makers as a rationale for the inclusion of those elections 
under the purview of §2.

No appellate court since Butts v. City of New York, 779 F.2d 
141 (2d. Cir. 1985), cert, denied. 478 U.S. 1021 (1986), has
conditioned application of the Voting Rights Act to an elected

11



office on the function of the elected officers at issue. The 
Eleventh Circuit, in particular, has recognized that the function 
of an elected official is irrelevant to a court's inquiry under §2.

The Eleventh Circuit's decision in Dillard v. Crenshaw 
County. 831 F.2d 246 (11th Cir. 1987), clearly contradicts the 
analysis endorsed by the LULAC panel. Dillard rejects the 
defendants' attempt to carve out a §2 exemption for elected 
officers performing administrative functions. The court found that 
§ 2 applies to all elected offices, whether the function performed 
by the officer is either legislative or administrative. As the 
Dillard court explains,

Nowhere in the language of Section 2 nor in 
the legislative history does Congress 
condition the applicability of Section 2 
on the function performed by an elected 
official. The language is only and 
uncompromisingly premised on the fact 
of the nomination or election. Thus, on 
the face of Section 2, it is irrelevant 
that the chairperson performs only 
administrative or executive duties. It 
is only relevant that Calhoun County has 
expressed an interest in retaining the 
post as an electoral position. Once a 
post is open to the electorate, and if it 
is shown that the context of that election 
creates a discriminatory but corrigible 
election practice, it must be 
open in a way that allows racial groups to 
participate equally, (footnote omitted)

831 F 2d at 250-251. Following the reasoning of Dillard, the 
Eleventh Circuit would not, as the LULAC panel does, foreclose a 
finding of §2 liability based on the functions performed by the

12



elected official.3
Nevertheless, the LULAC panel adopts the radical analysis of 

the Second Circuit in Butts. and holds that the function of trial 
judges warrants exemption from §2. The LULAC panel reconstructs 
the analysis and holding of Chisom to apply only to the election 
of judges who serve, like legislators, on collegial decision­
making bodies. Butts is completely inapposite to the case at hand 
and, in any event, seriously misinterprets §2.

A. The Trial Judges in the Challenged Counties Are Not 
Single Person Officers

The holding in Butts cannot be applied to the facts in this 
case. In Butts, the district court held that the 40% vote 
requirement in party primaries for the offices of Mayor, City 
Council President and Comptroller violated §2 of the Voting Rights 
Act, in that it denied African American and Hispanic voters in New 
York City an equal opportunity to elect candidates to those three 
city-wide offices. Butts v. City of New York, 614 F. Supp. 1527 
(S.D.N.Y. 1985). The Second Circuit Court of Appeals reversed the 
district court's holding on the grounds that "there can be no equal 
opportunity for representation within an office filled by one 
person." 779 F.2d at 148. The court in Butts found that "there

3This conclusion is consistent with the way courts have 
construed §5 cases. See Haith v. Martin. 477 U.S. 901 (1986) ; 
Kirksev v. Allain. 635 F. Supp. 347 (S.D. Miss. 1986) (three-judge 
court). In accordance with Congressional intent, "[sjections 2 
and 5 operate in tandem." LULAC. Panel Op. at 23. The function 
of the elected officer has no part in the application of any 
section of the Voting Rights Act.

13



is no such thing as a 'share' of a single-member office". Id.
The offices at issue in Butts were offices for which only one 

candidate was elected to serve the entire city. "[T]here would 
not, for example, be two comptrollers serving that geographic 
area." LULAC, Dissent at 7. At issue in the case at hand are at- 
large elections for district judges in counties served by more than 
one district judge. In Harris County, for example, 59 district 
judges are elected in staggered elections for six—year terms. Each 
judge runs for a numbered post —  but each judge is elected by all 
voters in the county and each judge has statewide jurisdiction. 
"Unlike the election for mayor or comptroller in Butts, the instant 
case is concerned with the election, within discrete geographic 
areas, of a number of officials with similar, and in most cases
identical, functions." LULAC, Dissent at 9; see also SCLC_v_;_
Sieaelman. 714 F.Supp 511,518 n.19 (M.D. Ala. 1989) ("what is
important is how many positions there are in the voting 
jurisdiction") .

If Harris County elected only one district judge to serve 
the entire county, then plaintiffs might find it difficult to prove 
that there should be 59 judges, and the Butts analysis would 
arguably be relevant, though not controlling. But that is not this 
case. Counties in Texas that elect only one district judge are not 
at issue in this case. The LULAC majority correctly points out 
that "it is no accident" that those counties' electoral systems 
were not challenged by the plaintiffs. Panel Op. at 38. The State 
of Texas has decided to have 59 district judges serve Harris

14



County. The at-large system of electing district judges in the 
challenged counties in Texas therefore, is simply not comparable 
to the elected offices at issue in Butts. See SCLC v. Siegelman, 

supra.
The specialization of family, civil and criminal court judges 

does not support the argument made by the LULAC panel that district 
judges are single-person officers exempt from §2. Section 2 has 
been applied to the election of commissioners who, like the judges 
in this case, are elected at-large by all the voters in the 
jurisdiction, to serve special functions. See e.g ., Bolden v. City 
of Mobile. 571 F.2d. 238 (5th Cir. 1978) (upholding application of 
§2 to three-member city commission, each assigned particular city­
wide functions) rev'd on other grounds, 446 U.S. 55 (1980) on
remand. 642 F.Supp. 1050 (S.D. Ala. 1982) (striking down Commission
system based on discriminatory intent); Buchanan v. City__of
Jackson. Tenn.■ 683 F.Supp. 1515 (W.D. Tenn.1988) (striking down
as violative of §2, at—large method of electing three-member 
commission, where the city charter assigned each commissioner 

specific duties).4
A review of the function of district judges in Texas also 

suggests that district judges do not, in fact, exercise the full

4In Mobile. the administration of the Department of Finance 
and Administration, the Department of Public Safety, and the 
Department of Public Works and Services, were assigned to each of 
the three commissioners respectively. In Buchanan, "The Mayor 
served as Commissioner of Public Affairs, Public Safety, Revenue 
and Finance, and the other commissioners served as the Commissioner 
of Streets, Sewers, Public Improvements and Public Utilities, and 
the Commissioner of Health, Education, Parks, and Public Property." 
683 F.Supp. at 1522

15



authority of their offices independently. Trial judges engage in 
a number of collegial decision-making functions. Panel Op. at 27 — 
30. Some of these collegial administrative functions are minor, 
while others affect the structure and function of the entire trial 
judge electoral system in the county.5

Even after trial judges are assigned cases they do not 
function as exclusive and independent decision-makers.6 "Cases 
can be freely transferred between judges...and any judge can work 
on any part of a case including preliminary matters." Panel Op. 
at 28. In addition, case assignments, jury empaneling and case 
record-keeping are handled on a county—wide collective basis. Tr. 
at 3-267; Tr. at 4-255-256. These collegial functions within the 
county-wide electoral structure demonstrate that district judges 
do not, in fact, exercise the full authority of their offices

5For instance, the Governor appoints a presiding 
administrative judge to correspond to the nine administrative 
judicial regions in Texas, from among the sitting district judges. 
Panel Op. at 28. This judge "is the key administrative officer in 
the Texas judicial system." Id. The presiding administrative 
judge is responsible for assigning judges within his region. Id. 
at 29. This judge also calls two meetings at which all of the 
judges in his/her region meet "to promulgate administrative rules, 
rules governing the order of trials and county-wide recordkeeping, 
and other rules deemed necessary." Id. at 29, quoting Tex. Gov't 
Code §74.048 (b)-(c) (Vernon 1988). The presiding judge is also 
endowed with the more general power to initiate action which will 
"improve the management of the court system and the administration 
of justice" in his region. Tex. Gov't Code §74.047 (Vernon 1988).

In addition, a local administrative judge, whose duties are 
similar to those of the presiding judge on a local level, is 
elected by a majority vote of all the judges in the county. Tex. 
Gov't Code §74.091 (Vernon 1988 & Supp.1990). District judges are 
also responsible for the appointment of a county auditor. LULAC, 
Dissent at 8.

6A11 cases are filed in a central "intake" for the county. 
Cases are then assigned randomly to a trial judge. Tr. at 4-255.

16



exclusively.
The LULAC panel's suggestion that "other rules attending the 

election of single officials, such as majority vote requirements, 
anti-single-shot voting provisions, or numbered posts," can be 
challenged under §2 reveals the weaknesses in its reasoning. Panel 
Op. at 39. First, as the dissent points out, "voting structures 
such as numbered posts do not logically apply to a single office 
position." LULAC. Dissent at 8-9 n.9. Indeed, a majority vote and 
numbered post requirement are two of the three factors specifically 
identified in the Senate Report as electoral features which in an 
at—large system tend to "enhance the opportunity for discrimination 
against the minority group." S.Rep. at 29. The LULAC panel 
implicitly recognizes therefore, that district judges in Texas are 
elected in an at-large system. Secondly, if the LULAC panel 
believes that the majority vote requirement can be challenged under 
§2, then it cannot rely on Butts, because Butts held precisely the 
opposite.

2. Butts Does Not Support Limiting Section 2's Scope to 
Collegial Decision-Makers

The court's reliance on Butts to advance the view that 
only collegial decision-makers are covered by §2 is also faulty. 
"Butts was not based on a 'collegial decisionmaking' rationale, 
nor was this concept even discussed. The Butts exception is 
premised simply on the number of elected officials being elected 
and the impediment to subdividing a single position so that

17



LULAC.minority voters have the opportunity to elect a 'share'."
Dissent at 9. The interpretation that only collegial-
decisionmaking offices elected at-large can be challenged under §2 
is of the LULAC panel's own creation.

3. Butts Erroneously Interprets Amended §2
In carving out an exemption for single-person offices from 

the restrictions of the Voting Rights Act, the Second Circuit in 
Butts suggests that Congress was not concerned with ensuring that 
minority voters have an equal opportunity to participate in the 
election of a particular group of elected office-holders —  single­
person officeholders. Nothing in the legislative history of the 
Voting Rights Act, nor in the Supreme Court's decision in Ginqles, 
in fact, suggests that single-person offices, such as mayor or 
governor, are entitled to greater deference than other offices open 
to the electorate. The Butts court cites no statutory language,7 
legislative history or even relevant §2 cases8 which support its 
radical approach to interpreting the scope of amended §2.

The legislative history of the Act shows, in fact, that

7The statutory language of the Act in defining "voting" 
clearly contradicts the Butts court's holding. See Voting Rights 
Act, Section 14 (c)(1) supra at n.l.

8The Butts court rests its conclusion'entirely on two §5 cases 
neither of which involved a challenge to a majority vote
requirement for a single—person office. See City of Richmond_v .
United States. 422 U.S. 358 (1975)(finding that §5 was not violated
by annexation of white suburb) ; City of Port Arthur v._United
States. 459 U.S. 159 (1982) (affirming district court's order
enjoining use of majority vote requirement for at-large 
councilmanic elections).

18



Congress was concerned with eradicating discrimination 
"comprehensively and finally" from every election in which voters 
were eligible to cast ballots. S. Rep at 13. Even elections for 
referenda, therefore, must comply with §2. See Voting Rights Act, 
Section 14(c)(1), 42 U.S.C. §1973 1 (c)(1); see also S.Rep. at 37.

The Butts court further errs in its interpretation of the 
focus of the Act. According to the Butts court, the Voting Rights 
Act was not meant to abolish electoral laws or structures that 
"make it harder for the preferred candidate of a racial minority 
to be elected . . .  the Act is concerned with the dilution of 
minority participation and not the difficulty of minority victory."
779 F. 2d at 149. The Supreme Court in Ginqles, expressly 

contradicts this interpretation of the focus of amended §2. In 
Ginqles. the Court struck down the use of an electoral scheme 
precisely because it made it difficult for African American voters 
to elect their preferred candidate to the North Carolina 
legislature. The at-large structure in Ginqles did not entirely 
inhibit African American voters from electing some candidates. 
African American voters, in fact, "enjoyed. . . sporadic success 
in electing their representatives of choice." 478 U.S. at 53. The 
at-large structure combined with white bloc voting made it 
difficult, absent special circumstances, for African American 
voters to elect their preferred candidates.

Butts' creation of a single-member office exception is simply 
inconsistent with the comprehensive scope of amended §2. If a New 
York City law explicitly stated that candidates for mayor must run

19



in election after election until a white candidate received a 
majority of the vote, §2 would clearly be violated. Similarly, if 
Harris County were divided into fifty-nine judicial districts which 
fragmented politically cohesive geographically compact communities 
of African American voters, this districting scheme could also be 
challenged under §2, even if that fragmentation were not the result 
of intentional discrimination. A change from the election of 
district judges to an appointive system could also be challenged 
under §2.9 See House Report at 18 (identifying shifts from 
elective to appointive systems as a potentially discriminatory 
election practice). The function of judges as single or collegial 
decision-makers would be irrelevant to whether such a cause of 
action could be sustained under §2.

Discriminatory election schemes for single-person offices have 
been struck down by this Court. In Bell v. Southwell, 376 F.2d 659 
(5th Cir. 1967) , for example, this Court voided the results of a 
Justice of the Peace election in which a white candidate defeated 
a African American candidate, because the voting lists and booths 
for that election were segregated. In that case, this court did 
not analyze the role or function of the official on the ballot.

9Plaintiffs would have to prove either that the change was 
enacted intentionally to discriminate against minorities or that 
the effect of the change resulted in the inability of African- 
American voters to participate in the political process. Such a 
change, of course, would first be subject to the preclearance 
requirements of §5 of the Voting Rights Act. Preclearance of this 
change could be denied on the grounds that the change from an 
elected to an appointive system violates §2. See Letter from 
Assistant Attorney General, April 25, 1990, Attached at Appendix 
"A" (objecting to changes in superior court judge elections in 
Georgia based, in part, on their apparent violation of §2).

20



The court was only concerned with the fact that segregated election 
practices offend the Constitution. Id. at 663. In fact, the 
results of the election were voided, even though the African 
American voting population was so small that if all the qualified 
African Americans had voted in the election, the results would not 
have been changed, and the white candidate would still have won. 
Id. at 662. The holding in Butts that the rules for the election 
of single-person offices are immunized from §2 application 
therefore, is wrong in light of the statutory language, legislative 
history and subsequent Supreme Court decision in Ginqles 10. It is 
also inconsistent with the law of this Circuit.

III. Remedial Concerns Are Not Properly Addressed at the 
Liability Stage of a Voting Rights Case

Despite its lengthy inquiry into the independent decision­
making role of trial judges, the LULAC panel is clearly most 
troubled by the prospect of carving up each of the challenged 
counties into single-member judicial districts. Conceding the lack 
of minority representation in the judiciary, the panel argues that

10The Supreme Court, in fact, has never focussed on the 
function of an elected officer in striking down a discriminatory 
election scheme. In Gray v. Sanders. 372 U.S. 368 (1963), for 
instance, the Supreme Court struck down the use of Georgia's county 
unit electoral system for the nomination for single-person 
(Governor) and multi-member (legislators) officers. In finding that 
the county unit system violated the Equal Protection Clause, the 
Supreme Court drew no distinction between the function of the 
multi-member and single-member officers at issue.

21



"the problems inherent in attempting to create a remedy for lack 
of minority representation" in the challenged counties 
"emphasiz[es]" the character of trial judges as single-office 
holders. LULAC. Panel Op. at 35. The Panel's preoccupation with 
the appropriateness and legality of a single-member district remedy 
in this case is premature, and taints its review of the District 
Court's finding of liability under §2.

A. The Proper Scope of the Liability Inquiry
Undoubtedly, the fashioning of an appropriate remedy which 

will completely remedy the §2 violation with "certitude" is a 
complex and daunting task for the parties and the reviewing court. 
See, e.g.. Dillard v. Crenshaw. 831 F.2d at 252. In part because 
of the complex and important nature of the task, the reviewing 
court at the liability stage need not adopt, review or otherwise 
engage in an analysis of the remedy best suited to cure the proven 
violation. The trier of fact and the reviewing court at the 
liability stage must limit its inquiry to an assessment of the 
"impact of the contested structure or practice on minority 
electoral opportunities." Ginqles. 478 U.S. at 44. At a separate 
remedy hearing, the trier of fact has an opportunity to assess the 
feasibility of the plans offered by the parties and rule on those 
plans according. See. e.g.. Martin v. Allain, 700 F.Supp. 327 
(S.D.Miss. 1988).

The LULAC panel's profound misgivings about a single-member 
judicial district remedy underscores the importance of separating

22



the liability inquiry from the question of remedy. In a separate 
remedial hearing, a full factual record related to a particular 
remedial plan can be developed and reviewed. To cure the 
violation, the State will also have the opportunity to submit its 
own plan which protects its bona fide interests. At the liability 
stage, the illustrative district maps offered by the plaintiffs at 
trial do not provide any sound basis upon which the court may rule 
on the appropriateness of a sub-districting remedy.

B. The LULAC Panel's Analysis of Sub-Districts 
as a Remedy is Critically Flawed

As the basis for its analysis of remedy, the LULAC panel 
refers to the illustrative sub-district plans offered by the 
plaintiffs as actual remedial plans for each county. That is
incorrect. These plans by the plaintiffs solely to illustrate the 
way in which the current system dilutes the voting strength of 
African American voters. Plaintiff—intervenors showed, that
African Americans in Harris County are sufficiently numerous and 
geographically compact to constitute a majority in a fairly drawn 
single-member district plan. These maps were not intended to serve 
as actual remedial plans. In sum, the illustrative hypothetical 
plans show the possibility of alternatives to the existing 
electoral structure that could provide African American voters with 
a more equal opportunity to elect their preferred candidates. 
["Gingles I districts"]. See Plaintiffs Exhibit H-04 ; HLA Exhibits 
2a-2c. Unilaterally transforming these maps into actual remedial

23



plans, the LULAC panel concludes that "the remedy in this case 
seems to lessen minority influence instead of increasing it." 
Panel Op. at 35.

In creating illustrative Ginqles I districts both the 
plaintiffs and Harris County plaintiff-intervenors developed sub­
district maps which divided the county into districts equalling 
the number of currently sitting district judges. For example, 
plaintiffs' and plaintiff-intervenors' experts created 59 
illustrative judicial electoral districts for Harris County, since 
the county is served by 59 district judges. Referring specifically 
to the plaintiffs' suggested plan for Harris County, which showed 
that if the county-wide electoral system were changed, politically 
cohesive African American voters could constitute a majority in at 
least nine districts,11 the LULAC panel argues that "[m]inority 
voters would have very little influence over the election of the 
other 50 judges, for the minority population is concentrated in 
those 9 subdivisions." Panel Op. at 36. An appropriate remedy 
for Harris County, however, might not include the creation of 59 
separate electoral districts in Harris County. So long as the 
creation of a sub-districting plan fully cured the §2 violation, 
it might take a number of different forms and might contain fewer 
than 59 electoral districts in Harris County. The conclusions 
drawn by the LULAC panel from the plaintiffs illustrative maps

11Plaintiff-intervenors ' expert testified that African American 
in Harris County could constitute a majority in thirteen [13] 
single-member districts. See. Plaintiff-Intervenor HLA Exhibits 
2, 2a, 2b.

24



would be relevant only if these maps were submitted as remedial 
plans once the liability phase of this case had been completed. 
The LULAC panel's concerns about the creation of an appropriate 
remedy should be properly considered by the district court on 
remand. These legitimate concerns, however, should not infect this 
court's review of the presence of underlying §2 liability.

1. The LULAC Majority's Analysis of the Plaintiffs'
District Plan Fails on Its Own Terms

Assuming that 59 separate judicial electoral districts would 
be created in Harris County, the LULAC panel argues that African 
American voters in Harris County would suffer greater injury under 
a sub-district plan because "it is much more likely than not that 
a minority litigant will be assigned to appear before a judge who 
is not elected from a voting district with a greater than 50% 
minority population." Panel Op. at 36. The panel calculates that 
in Harris County, "a minority member would have an 84.75% chance 
of appearing before a judge who as no direct political interest in 
being responsive to minority concerns." Panel Op. at 36-37. Under 
the current system, the panel reasons that "[m]inority voters.
. have some influence on the election of each judge," because they 
are permitted to vote for every judicial race in their county. 

Panel Op. at 36.
The panel's analysis simply does not hold up under close 

scrutiny. Since all cases in the county are assigned to judges 
randomly, Tr. at 4-255-256, no litigant in Texas should anticipate

25



appearing before a judge that he or she elected. In fact, no 
evidence was introduced at trial to suggest that voters vote for 
particular candidates because they expect to appear before them as 
litigants. It would seem more likely that voters vote for 
candidates who they anticipate will "administer and interpret the 
law" in accordance with the voter's philosophy about the rules 
under which their society should be governed. Chisom, 839 F.2d at 

1065.
Moreover, maintaining the countywide election system gives 

white litigants a virtual guarantee that they will appear before 
judge who are the candidates of choice of the white community. If, 
as the LULAC panel argues, a sub-district remedy would be 
"perverse," Panel Op. at 38-39, then maintaining the current system 
which, in effect, rewards whites who vote as a bloc against African 
American sponsored African American candidates, would be obscene.

If indeed the panel is concerned that African American 
litigants will not, under a sub-districting plan, appear before 
African American judges, the its own analysis contradicts itself.

12The panel's entire discussion assumes that minority judges 
will decide cases on the basis of race, instead of in accordance 
with the law, and that African American litigants will therefore 
wish to appear before African American judges. Nothing in the 
record supports this assumption. It is offensive to the many 
qualified minority candidates to assume that they will not apply 
the law as impartially as currently sitting white judges do. No 
witness or party in this case has ever claimed that he or she seeks 
to influence the outcome of litigation by electing minority judges. 
That is neither the anticipated nor desired outcome of this §2 
challenge. Instead, the plaintiffs in this action simply seek an 
equal opportunity to participate in all phases of the electoral and 
political process. In keeping with that goal, plaintiffs seek the 
right to elect candidates of their choice as district judges. As 
the dissent points out, "[t]he majority's discussion approaches the

26



Under the current electoral system, only two African Americans have 
been elected to serve as district judges in Harris County since 
1980.13 It is difficult to understand how African Americans would 
fare worse under an electoral scheme that would give them the 
opportunity to elect 9 of the 59 judges.

The panel's concern that white judges outside the majority 
African American sub-districts will not feel responsible to the 
African American community merely supports the need for change in 
the current system. Under the county-wide election scheme, none 
of the 59 district judges in Harris County has any incentive to be 
responsive to the minority community because African Americans make 
up only 18% of the County's 1,266,655 registered voters. 
Therefore, under the current system, district judges in Harris 
County may "ignore minority interests." Ginqles, 478 U.S. at 48 

n. 14.
Contrary to the defendants' argument, the election of judges 

from sub-districts with countywide jurisdiction would not violate 
the constitutional rights of voters. District judges in Texas 
currently have statewide jurisdiction. See Nipper v. U—Haul, 516 
S.W .2d 467 (Tex. Civ. App. 1974). This means that district judges 
may hear cases anywhere in the State of Texas. Id.; see also, Reed

problem from the wrong direction; quite simply, the focus should 
be on the rights of the voter, not the litigant." Dissent at 12- 
13, n.12 .

130f the three sitting African American district judges in 
Harris County, two are criminal court judges, and one is a family 
law judge. No African American has ever been elected to a district 
civil court bench. Tr. at 3-207.

27



v. State of Texas. 500 S.W.2d 137 (Tex. Crim. App. 1973). Often
judges sit in counties from which they were not elected in order 
to help with docket control. Tr. at 5-120. Therefore, litigants 
in Texas frequently appear before trial judges over whom they have 
no electoral control. This political reality has been upheld in 
a number of cases challenging the power of district judges in Texas 
to hear cases outside their electoral district. See, e. q . , Nipper; 
Reed. Other states have also upheld the constitutionality of 
similar judicial electoral systems. See e.q., Holhouser v. Scott, 
335 F.Supp. 928 (M.D.N.C. 1971) (upholding statute permitting
judges with statewide jurisdiction to be elected statewide or from 
districts; also upholding transfer of district judges from one 
district to another for temporary or specialized duty); Cox v . 
Katz. 294 N .Y.S.2d 544 (1968) (upholding constitutionality of
electing judges with citywide jurisdiction from districts within 
each borough). Moreover, in Martin v. Allain. the District Court 
approved the election of chancery, circuit and county court judges 
from sub-districts, while maintaining countywide jurisdiction for 
the judges. 700 F.Supp 327,332 (S.D. Miss. 1988).

C. The LULAC Panel's Focus on a Sub-Districting Remedy 
is Particularly Inappropriate in This Case Where 
Plaintiff-intervenors Proposed Alternative Remedies

The Panel's reversal of the district court's decision, based 
primarily on its analysis of a sub-districting remedy, is 
particularly inappropriate in this case, where plaintiff- 
intervenors in their complaint specifically pleaded that "the use

28



of a non-exclusionary at-large voting system could afford African 
Americans an opportunity to elected judicial candidates of their 
choice." HLA Complaint at ^42. The HLA plaintiff-intervenors 
specifically stated that an at-large system using limited or 
cumulative voting would give African American voters a more equal 
opportunity to elect district judges. Id. The HLA plaintiff- 
intervenors, therefore, recognized that alternative at—large 
election schemes provide a viable alternative to sub—districting 
to cure a proven §2 violation. So long as these modified at-large 
methods of electing judges could completely cure the violation with 
"certitude," they too would be acceptable remedies. See Dillard
v . Crenshaw County; see also Dillard v. Chilton County_Bd.— of
Educ.. 699 F.Supp 870 (M.D. Ala. 1988) summarily aff'd, 868 F.2d
1274 (1989) (adopting magistrate's recommendation that cumulative
voting be used for election of county commission and school board); 
Dillard v. Town of Cuba, 708 F.Supp. 1244 (M.D. Ala. 1988) (limited 
voting scheme acceptable under §2 for city council elections).

As the HLA plaintiff-intervenors alleged in their complaint, 
single-member districts "are by no means the only alternative 
electoral system" that can give minority voters the potential to 
elect candidates of their choice. R. Engstrom, D. Taebel & R.
Cole, Cumulative Voting as Remedy for Minority Vote Dilution:__The
Case of Alamogordo, New Mexico. The Journal of Law & Politics, Vol. 
V., No. 3 (Spring 1989).14 Both cumulative and limited voting

14In the case at hand, Dr. Engstrom testified as an expert for 
plaintiffs and plaintiff-intervenors and Dr. Taebel testified for 
both the State defendants and defendant-intervenors.

29



undercut the "winner-take-all" quality of at-large elections 
whereby "a bare political majority of the electorate can elect all 
the representatives and totally shut out a minority." Karlan, Maps 
and Misreadings: The Role of Geographic Compactness in Racial 
Vote Dilution Litigation. 24 Harv. C.R.-C.L.L.Rev. 173 (1989); see 
also HLA Complaint at f39 ("district judges in Harris County run 
in exclusionary at-large, winner-take-all, numbered place 
elections."). Both these alternative at-large systems would 
maintain the countywide election district, thus preserving the 
State's articulated interest in avoiding the creation of sub­
districts .

1. Limited Voting
In a limited voting electoral scheme the multimember district 

is maintained, but "each voter has fewer votes than there are seats 
to be filled: the voter is limited to voting for less than a full 
slate." Karlan, supra at 224 (emphasis in original). Using a 
mathematical equation, experts can calculate "the percentage of the 
vote that will guarantee the winning of a seat [for the minority 
group] even under the most unfavorable circumstances. '" Id. at 222 
This calculation yields the number of votes which should be 
allotted to each elector for that election. Each elector receives 
the same number of votes.

One expert has concluded that "[ljimited voting is a viable 
remedial system" for Harris County. Issacharoff, The Texas 
Judiciary and the Voting Rights Act: Background and Options, at

30



18, Texas Policy Research Forum (December 4, 1989) attached at
Appendix "B". According to Professor Issacharoff, "voters would 
be allowed to cast a number of ballots equal to roughly 60 percent 
of the judicial offices to be filled at any given time." Id.

The constitutionality of limited voting systems has been 
upheld in a number of states. See e.g.. Cintron-Garcia v. Romero- 
Barcelo. 671 F.2d 1,6 ( 1st Cir.1982) (holding that limited voting 
scheme for election of Commonwealth representative is "reasonable" 
and facilitates minority representation); Hechinger v. Martin, 411 
F.Supp. 650 (D.D.C 1976) (three-judge court) (upholding limited 
voting scheme for District of Columbia city council elections) 
aff'd per curiam. 429 U.S. 1030 (1977); LoFrisco v. Schaffer, 341 
F.Supp. 743 (D.Conn 1972) (three-judge court) (limited voting
scheme for Conn, school boards upheld); Kaelin v. Warden, 334 
F.Supp. 602, 605 (E.D. Pa. 1971) (Equal Protection Clause is not 
violated by limited voting scheme, so long as each voter casts the 
same number of votes); Blaikie v. Power. 243 N.Y.S.2d 185 (1963) 
(upholding limited voting for some New York City Council elections 
seats), appeal dism'd. 375 U.S. 439 (1964). Limited voting has 
also been approved for the election of trial judges. In Orloski 
v. Davis. 564 F.Supp. 526 (M.D. Pa. 1983), for instance, the
district court upheld the use of a limited voting scheme to elect 
Pennsylvania's Commonwealth Court.15

15The Commonwealth Court's jurisdiction includes, in part, 
"original jurisdiction over civil actions brought against the 
Commonwealth and its officials... concurrent jurisdiction with the 
Courts of Common Pleas over all actions brought by the 
Commonwealth; exclusive (with specific exceptions) appellate

31



2. Cumulative Voting
A cumulative voting electoral scheme permits each voter "to 

cast as many votes as there are seats to be filled,. . . [but]. . 
a voter may cumulate or aggregate her support by giving preferred 
candidates more than one vote." Karlan, supra at 231. A 
mathematical equation can calculate "the percentage or proportion 
of the electorate that a group must exceed in order to elect a 
candidate of its choice, regardless of how the rest of the 
electorate votes." R. Engstrom, D. Taebel, & R. Cole, supra at 
478. (emphasis in original). Cumulative voting was used 
successfully for over 100 years to elect the Illinois House of 
Representatives. See Karlan, supra at n.250.

These modified at-large electoral systems, although best 
explored at the remedy stage, clearly provide alternatives to 
single-member district schemes. In light of these alternatives, 
the LULAC panel's remedy concerns are both premature and unfounded.

IV. The District Court Properly Held that Under the Totality 
of the Circumstances African American Voters in Harris 
County Do Not Enjoy an Equal Opportunity to Elect Their 
Preferred Candidates in District Judge Elections

jurisdiction over all appeals from Courts of Common Pleas involving 
the Commonwealth, Commonwealth officials; secondary review of 
certain appeals from Commonwealth agencies.... and exclusive 
original. . . jurisdiction over election contests." 564 F.Supp. 
526,532.

32



While implicitly recognizing the existence of underlying §2 
liability in the election of district judges in Texas, see e.g., 
Panel Op. at 35; Dissent at 17-18, n.15 ("trial record is replete 
with evidence [that] minorities are seldom ever able to elect 
minority candidates to any of the at-large district court judge 
positions available in the districts"), the LULAC panel opinion 
never reached the question whether African Americans, in fact, have 
an equal opportunity to elect their candidates of choice as 
district judges in Harris County. In light of some of the 
questions raised at oral argument however, HLA plaintiff— 
intervenors will address below the only factual defense offered by 
the defendants16 —  that is, that African Americans lose district 
judge elections because they vote and run as Democrats.

Despite their failure to prove this claim as either a matter 
of fact or law, the defendants persist in arguing that partisan 
politics rather than race explains the outcome of district judge 
elections in Harris County. According to the defendants, elections 
in Harris County are politically polarized, not racially polarized. 
The defendants further argue that Judge Bunton's findings of 
racially polarized voting were clearly erroneous, because he failed 
to consider the role of partisan politics to explain the outcome

16The District Court's opinion and the original briefs of the 
plaintiff-intervenors on appeal, detail the plaintiffs' proof of 
the threshold Gingles factors and the existence of relevant Senate 
Report Factors in Harris County. The only issue about which there 
remains controversy regarding underlying §2 liability in Harris 
County, is the District Court's analysis of existence of racially 
polarized voting.

33



Defendants' argument, which seeks toof the elections analyzed.17 
import a causation requirement into a §2 analysis squarely rejected 
by Ginales and this Court, is wrong both as a matter of law and 
fact.

Judge Bunton's findings are not clearly erroneous. The 
district court properly applied, to the record in this case, the 
standard methods for determining racially polarized voting and vote 
dilution approved by the Supreme Court in Gingles and in every 
decision in this Circuit. The unquestionable outcome of the 
court's analysis revealed that white bloc voting in Harris County, 
in combination with other Senate Factors, prevents African American 
voters from electing district judges to office.

A. Congress Has Expressly Rejected a Causation Analysis 
Every decision in this Circuit which has addressed the 

question of the role of causation in an analysis of polarized 
voting, has concluded that a court need not engage in an inquiry 
into the motives of white voters in rejecting African American

17The Court relied on the testimony of plaintiff-intervenors' 
expert, Dr. Richard Engstrom. Dr. Engstrom testified that voting 
in district judge elections in Harris County is racially polarized. 
In support of his conclusion, Dr. Engstrom analyzed the 17 
contested district judge elections involving white and African 
American candidates in Harris County since 1980. In 16 of those 
17 elections, African American voters gave more than 95% of their 
vote to the Black candidate. In those same elections, white voters 
never gave more than 40% of their vote to the African American 
candidate. Only 3 African American candidates have been successful 
in contested district judge races in Harris County since 1980. Dr. 
Engstrom concluded that district judge elections in Harris County 
are racially polarized.

34



candidates. See Overton v. City of Austin. 871 F.2d 529,538 (5th
Cir. 1989); Campos v. City of Baytown. 840 F.2d 1240,1243 (5th Cir.
1988); Citizens for a Better Gretna v. City of Gretna. 636 F.Supp.

181113,1130 (E.D. La. 1986), aff'd. 834 F.2d 496 (5th Cir. 1987).
In Overton v. City of Austin, in particular, this Court held 

that the analysis used by the district court in this case, which 
focuses on the results of bivariate regression and homogenous 
precinct analysis and supporting lay testimony, rather than 
extrinsic factors such as political party, is an appropriate method 
of determining the existence of legally significant racial bloc 
voting. 871 F.2d at 538. Furthermore, a multi-variate analysis 
while perhaps "helpful in determining whether racial polarization 
exists,. . . in no way negate[s] the use of bi-variant regression 
analysis to determine whether in fact polarization exists." 
Gretna,. 636 F.Supp. at 1130.

This conclusion is compelled by Thornburg v. Ginqles. In 
Gingles, the Supreme Court upheld the district court's finding of 18 * *

18This Circuit has consistently affirmed findings of racially 
polarized voting in the lower court based on a statistical review 
of white vs. minority candidate contests, using bivariate 
regression and homogenous precinct analyses. See Campos v. City 
of Baytown. 840 F.2d 1240,1243 (5th Cir. 1988); Gretna; LULAC v. 
Midland ISP. 812 F.2d 1494,1501 n.14 (5th Cir. 1987), vacated on 
other grounds. 829 F.2d 546 (5th Cir. 1987). These statistical 
methods are standard in the literature for the analysis of racially 
polarized voting. Gingles. 478 U.S. at 53 n.20. The causation
inguiry advocated by the defendants is at odds with these standard 
methods of analysis. Attempting to determine the motive of white 
voters in rejecting Black candidates "flies in the face of the 
general use, in litigation and in the general social science
literature, of correlation analysis as the standard method for 
determining whether vote dilution in the legal... sense exists." 
Ginqles v. Edmisten. 590 F.Supp 345 at 368 n.32.

35



racially polarized voting, despite the defendants' arguments in the 
lower court that experts must "factor in all of the circumstances 
that might influence particular votes in a particular election," 
including political party. 19 Gingles v. Edmisten, 590, F.Supp. 345 
(E.D. N.C. 1984) (three-judge court). Over these arguments, the 
Supreme Court unanimously affirmed the District Court's findings.20

The approach advocated by the defendants and recently by Chief 
Judge Tjoflat in an Eleventh Circuit concurrence in Solomon v. 
Liberty County. No. 87-3406 (11th Cir. April 5, 1990),21 * is fraught 
with dangers already anticipated by Congress. First, a test which 
focused on the motives of white voters in voting against African 
American candidates "would make it necessary to brand individuals 
as racist in order to obtain judicial relief." S.Rep. at 36. 
Congress specifically sought to avoid this outcome in amending §2.

19The District Court in Gingles, specifically found that the 
white bloc vote which tended to defeat Black candidates was made 
up of both Republicans and Democrats. 590 F.Supp at 368-369.

20In their Jurisdictional Statement to the Supreme Court, the 
Gingles appellants specifically argued, as do the defendants in 
this case, that extrinsic factors besides race best explained the 
outcome of elections in the North Carolina legislative districts 
at issue. See, Jurisdictional Statement of Appellants at 17-18, 
Thornburg v. Gingles. The Supreme Court was not persuaded by this 
argument.

21In Solomon v. Liberty County. No. 87-3406 (11th Cir. April
5, 1990), the Eleventh Circuit remanded to the district court a 
claim brought by African American voters challenging the at-large 
election of county commissioners and school board members. In one 
of the three concurring opinions, Chief Judge Tjoflat argued that 
the objective factors which make up the §2 results test "must show 
that the voting community is driven by racial bias and that the 
challenged scheme allows that bias to dilute the minority 
population's voting strength," in order for plaintiffs to prevail. 
Solomon v. Liberty County. Slip Op. at 22, (Tjoflat, J., 
concurring)(emphasis deleted).

36



Mindful of the fact that levelling charges of racism against 
individual officials or entire communities" leads to divisiveness 
in the commmunity, Congress specifically "avoid[ed the inclusion 
of] highly subjective factors" in the "results" test. House Report 
at 30; S.Rep. at 36 It is difficult to imagine a more potentially 
divisive inquiry than attempting to prove that individual white 
voters voted against a African American candidate because of the 
candidate's race.22.

In addition, although under the defendants' analysis of racial 
bloc voting the motives of each and every white voter who voted 
against a African American candidate would be relevant to the 
plaintiffs' case, it would be impossible for plaintiffs to meet 
their burden because "[t]he motivation(s) of . . . individual
voters may not be subjected to. . . searching judicial inquiry."
Kirksev v. City of Jackson. Miss., 663 F.2d 659,662 (5th Cir 1981) 
rehearing and rehearing en banc denied 669 F.2d 316 (5th Cir. 
19 8 2 ) 23.

22Personal accounts of racial discrimination involving elected 
officials, community leaders, neighbors, shopkeepers, banks and 
ordinary citizens would also be relevant to establishing "the 
interaction between racial bias in the community and the challenged 
[electoral] scheme."

23Congress cited the near impossibility of meeting an intent 
burden as a factor necessitating a return to a results-oriented 
standard under §2. S.Rep. at 36; see also Gingles, 478 US at 43. 
Congress was concerned, for instance, that "plaintiffs may face 
barriers of 'legislative immunity' both as to the motives involved 
in the legislative process, and as to the motives of the majority 
electorate when an election law has been adopted or maintained as 
the result of a referendum." S.Rep. at 37 (emphasis added). 
Similar barriers would be faced by plaintiffs attempting to discern 
the motives of white voters who did not vote for Black candidates.

37



Finally, contrary to the defendant's repeated assertions, 
Congress' stated return to the standards developed in White, 
Whitcomb and Zimmer does not support the introduction of extrinsic 
factors into an analysis of racially polarized voting. Congress 
has expressly interpreted White. Whitcomb and Zimmer as results 
cases. S.Rep. at 28 (concluding that "White and the decisions 
following it" required no proof of intent). Congress noted, in 
fact, that "[i]n Whitcomb. plaintiffs conceded that there was no 
evidence of discriminatory intent. If intent had been required to 
prove a violation the opinion would have ended after it 
acknowledged plaintiffs' concession." S.Rep. at 21. The courts 
in White, Whitcomb and Zimmer simply recognized that "[i]t would 
be illegal for an at-large election scheme for a particular... local 
body to permit a bloc voting majority over a substantial period of 
time consistently to defeat minority candidates or candidates 
identified with the interests of a racial or language minority." 
House Report at 30. Moreover, Congress clearly instructed that, 
"[r]egardless of differing interpretations of White and Whitcomb.
. . . the specific intent of this amendment [to §2] is that the 
plaintiffs may choose to establish discriminatory results without 
proving any kind of discriminatory purpose." S.Rep. at 28 
(emphasis added).

The arguments offered by the defendants in this case, 
therefore, were expressly addressed and rejected by Congress in 
amending §2.

Finally, even if defendants arguments were well-founded they

38



failed to prove at trial that, in fact, factors other than race 
explain the loss of African-American candidates in district judge 
elections. The defendants' own expert, Dr. Taebel, articulated the 
proper test to determine whether party and not race explains the 
outcome of these elections: "the minority candidate who run [sic] 
on a partisan basis should receive the same support as any White 
candidate or any other candidate might." Tr. at 5-189. "In other 
words, did the Democratic White voters, for example, support the 
minority Democratic candidate to the same extent that they 
supported other White candidates." Id. The results of this test 
clearly support the plaintiffs' case.

A gross disparity exists in the success rates of white and 
African American candidates within the Democratic party. According 
to the expert for the plaintiff-intervenors, 52% of white 
Democratic candidate won in contested district judge general 
election contests since 1980. Only 12.5% of Black Democratic 
candidates were similarly successful. Tr. at 134-135. These 
figures were not disputed by Dr. Taebel. Therefore, using the 
defendants' own analytical formula, race not political party, 
controls the outcome of district judge races in Harris County.

The clear weight of the evidence in the record supports the 
district court's finding that the county-wide method of electing 
district judges in Harris County does not provide an equal 
opportunity for African-American voters to elect their preferred 
candidates.

39



CONCLUSION
Based on the legislative history of §2, the interpretation of 

amended §2 in this circuit, and the district court's proper 
application of the relevant law, HLA plaintiff-intervenors 
respectfully request that this court affirm the district court's 
judgment and remand this case for a determination of the 
appropriate remedy.

SHERRILYw A. IFILL
99 Hudson Street, 16th Floor 
New York, New York 10013

Of Counsel:
MATTHEWS & BRANSCOMB 
A Professional Corporation

GABRIELLE K. MCDONALD
301 Congress Avenue 
Suite 2050 
Austin, TX 78701

40



CERTIFICATE OF SERVICE
I hereby certify that on this 5th day of June, 1990 a true and 

correct copy of Plaintiff Intervenor-Appellees Houston Lawyers 
Association, et al. Supplemental Brief on Appeal was mailed to 
counsel of record in this case by first class United States mail, 
postage pre-paid, as follows:

William L. Garrett 
Brenda Hall Thompson 
Garrett, Thompson & Chang 
8300 Douglas, Suite 800 
Dallas, TX 75225
Rolando L. Rios 
Southwest Voter Registration 

and Education Project 
201 North St. Mary's Street 
Suite 521
San Antonio, TX 78205
Susan Finkelstein 
Texas Rural Legal Aid, Inc. 
201 North St. Mary's Street 
Suite 600
San Antonio, TX 78205
Edward B. Cloutman, III 
Mullinax, Wells, Baab & 

Cloutman, P.C.
3301 Elm Street 
Dallas, TX 75226-9222

J. Eugene Clements
John E. O'Neill
Evelyn V. Keyes
Porter & Clements
700 Louisiana, Suite 3500
Houston, TX 77002-2730
Michael J. Wood 
Attorney at Law 
440 Louisiana, Suite 200 
Houston, TX 200
John L. Hill, Jr.
Liddell, Sapp, Zivley, 

Hill & LaBoon 
3300 Texas Commerce Tower 
Houston, TX 77002

David R. Richards 
Special Counsel 
600 West 7th Street 
Austin, TX 78701



Jim Mattox 
Mary F. Keller 
Renea Hicks 
Javier Guajaro 
Attorney General's Office 
Supreme Court Building 
1401 Colorado Street 
7th Floor
Austin, TX 78701-2548

Seagal V. Wheatley 
Donald R. Philbin, Jr. 
Oppenheimer, Rosenberg,

Kelleher & Wheatley, Inc. 
711 Navarro, Sixth Floor 
San Antonio, TX 78205
E. Brice Cunningham
777 South R.L. Thornton Freeway
Suite 121
Dallas, TX 75203
Darrell Smith
10999 Interstate Highway 10 
Suite 905
San Antonio, TX 78230
Mark H. Dettman
P.0. Box 2559
200 West Wall
Midland County Courthouse
2nd Floor
Midland, TX 79702

Robert H. Mow, Jr.
Hughes & Luce 
2800 Momentum Place 
1717 Main Street 
Dallas, TX 75201
Gabrielle K. McDonald 
Matthews & Branscomb 
301 Congress Avenue 
Suite 2050 
Austin, TX 78701
Walter L. Irvin 
5787 South Hampton Road 
Suite 210, Lock Box 122 
Dallas, TX 75232-2255
Ken Oden
Travis County Attorney 
P.O. Box 1748 
Austin, TX 78767
Tom Rugg
Jefferson County Courthouse 
Beaumont, TX 77701
John R. Dunne, Esq.
Jessica Dunsay Silver, Esq. 
c/o Hon. Richard Thornburgh 
Attorney General of the 

United States 
United States Department 

of Justice
Main Justice Building 
10th & Pennsylvania 

Avenue, N.W. 
Washington, D.C. 20530

I
La ; i ( ' A c L l

Sherrilyn A. Ifill
Attorney -for Plaintiff Intervenor- 
Appellees,
Houston Lawyers' Association, et al.





l S Pepnrtm ei^.u!' Justice 

( I'.il Rights Division

“- iv  v'uj 202 724 6961 P.02

(itf:iv «t

April 25, 1990

Honorable Michael J. Bowers
Attorney General
State of Georgia
132 State Judicial Building
Atlanta, Georgia 30334
Dear Mr. Attorney General:

This refers to the following matters which are before the 
United States Attorney General for review under Section 5 of the 
Voting Rights Act of 1965, as amended, 42 U.S.C. 1973c, with 
respect to the State of Georgia:

1 . the January 2, 1990, request for reconsideration of the
June 16, 1989, objection to the establishment of 48 additional
superior court judgeships, the specification of the date on which 
the first full term of office commenced for each new judgeship, 
and the creation of two additional superior court circuits and 
the district attorney positions to serve those circuits;

2. the January 2, 1990, submission of five additional
superior court judgeships created in 1989, and the specification 
of the date on which the first full term of office commences for 
each judgeship; and

3. the April 3, 1990, submission of five additional
superior court judgeships created in 1990, and the specification 
of the date on which the first full term of office commences for 
each judgeship.
On March 2, 1990, we received the information necessary to
complete our review of the reconsideration request and to 
complete the January 2, 1990, submission.

The changes now before; the Attorney General for Section 5 
review date back to 1967 and involve a far-reaching expansion of 
the superior court system undertaken over a period of twenty- 
three years. This includes; over one-third of the system's 143 
elective judgeships, and involves 30 of the 45 superior court



w  '  U ' U 1 v 11_ nr i u-i I b L1 i l 1 DO J 202 724 6961 P.03

circuits in the state. Thus, while we have been fully cognizant 
of the state's request for expedited review, the comprehensive 
nature of these submissions, as well as the importance of the 
changes to the state and its minority citizens, has required a 
considerable amount of time for us to give the kind of careful 
consideration due a submission of such proportions.

At the outset, we note that the expansion of the superior 
court system occasioned by the establishment of the additional' 
judicial positions must be analyzed in the context of the method 
utilized to elect the judges. City cf Lockhart v. United States. 
460 U.S. 125, 131-132 (1983). See also McCain v. Lvbrand. 465
U.S. 236, 255 n.27 (1934). In Georgia, superior court judges are 
elected at large within each circuit. A majority vote 
requirement exists in both the primary and general elections, and 
candidates must run for a designated position which precludes 
voters from using the technique of single-shot voting. According 
to the 1980 Census, only one circuit (the Atlanta Circuit) is 
majority black in population, and no circuit is majority black in 
voting age population. In addition, our information is that 
incumbency plays an important role in the electoral process for 
the superior court in that incumbents rarely are defeated. We 
understand that for about three-fourths of the current judges 
such incumbency was first established by their having been 
appointed to the bench.

We note further that most interracial judicial elections 
have occurred in the Atlanta Circuit, and these elections appear 
generally to exhibit a pattern of polarized voting. See also 
Busbee v. Smith■ 549 F. Supp. 494, 499 (D.D.C. 1982), sum, aff'd.
459 U.S. 1166 (1983). No black ever has defeated a white 
incumbent superior court judge and, while black incumbents on the 
superior court also have been elected, they have never faced 
opposition. Only five blacks ever have served on the superior 
court in this circuit; three obtained gubernatorial appointments 
and two gained their seats in contests in which no incumbent was 
running (a circumstance which appears rarely to occur in superior 
court elections). The result is that only three of the eleven 
sitting judges are black although the circuit is 51 percent black 
in population.

Outside the Atlanta Circuit, only three blacks ever have 
served on the superior court, and these three all initially were 
appointed to the bench. Two of the three were then opposed in 
subsequent elections, and both elections appear to have been 
characterized by polarized voting. In addition, since there are 
few judicial elections to analyze outside the Atlanta Circuit, it 
is appropriate to consider contests for other elected offices in 
these circuits. Our review of a broad range of evidence in this 
regard indicates that polarized voting generally prevails in all



of the superior court circuits new under review and there is a 
consistent lack of minority electoral success in at-large 
elections. Thus, it appears that, in the totality of the 
circumstances, black voters in these circuits have a limited 
opportunity to elect their preferred candidates, even when blacks 
enjoy the advantages of incumbency by initially having been 
appointed to the bench.

Two features which are of particular import in the superior 
court electoral system are the majority vote and designated post 
requirements. It is well recognized that these requirements, 
acting in tandem, tend to minimize black voting strength in an 
at-large system. See, e.g.. City of Rome v. United States. 446 
U.S. 156 (1930). Indeed, there is substantial information 
indicating that the majority vote requirement was adopted in 1964 
by the state precisely for that invidious purpose; the designated 
post requirement was adopted in the same legislation. The state 
has advanced no persuasive nonracial reason for continuing the 
use of these features, especially since there appear to be 
alternative methods for electing superior court judges which 
would not similarly minimize and submerge black voting strength.

In addition, the state has not shown how its interests are 
served by circuitwide elections in many of the circuits now at 
issue where the at-large election feature is in apparent 
violation of Section 2 of the Voting Rights Act. Thornburg v. 
Ginales. 473 U.S. 30 (1986). While a state may have more 
flexibility under Section 2 in justifying the at-large election 
of judges than it does with respect to other elected officials, 
we look to the submitting authority to proffer persuasive 
justifications. Here, it has not done so.

Under Section 5 of the Voting Rights Act, the submitting 
authority has the burden of showing that a submitted change has 
neither a discriminatory purpose nor a discriminatory effect, and 
preclearance also must be denied where a clear violation of 
Section 2 is found to exist. See Georgia v. United States. 411 
U.S. 526 (1973); Procedures for the Administration of Section 5 
(28 C.F.R. 51.52 and 51.55(b)). In this connection, we in 
particular cannot ignore the substantial information which has 
come to our attention suggestive of the racially discriminatory 
purpose underlying the adoption of a major feature of the present 
system - the majority vote requirement and, possibly, the 
designated post as well. As the Supreme Court has noted, "an 
official action, ..., taken for the purpose of discriminating 
against Negroes on account of their race has no legitimacy at all 
under our Constitution or under the [Voting Rights Act]." City 
of Richmond v. United States, 422 U.S. 353, 378 (1975),

In light of these considerations, therefore, I cannot 
conclude, as I must under the Voting Rights Act, that the state 
has carried its burden of showing that the expansion of an

JUN 5 ’90 IB: IS
■3* n o



724 6961 P .05

electoral systen, which include?.; the restrictive majority vote 
e:ia designated post features, through the additional judgeships 
under review here meets the preclearance standards. Accordingly, 
on behalf of the Attorney General I must decline to withdraw the 
June 16, 1939, objection to the 48 additional judgeships and the
related changes concerning the dates on which terms of office 
commenced, and also must object to the ten judgeships established 
in 1989 and 1990, and the dates on which terms of office are to 
commence.

With respect to the creation of two additional circuits 
(Alcovy and Houston) and the district attorney positions 
therefor, our analysis indicates that these changes have met the 
preclearance standards. Accordingly, on behalf of the Attorney 
General, the objection to these changes is withdrawn.

As you are aware, the state retains the right under 
Section 5 to seek a declaratory judgment from the United States 
District Court for the District of Columbia that the changes for 
which Section 5 clearance has been denied do not deny or abridge 
the right to vote on account of race or color. However, until a 
declaratory judgment is obtained or the objection is withdrawn, 
these changes continue to be legally unenforceable. 28 C.F.R. 
51.10. In that regard, we would underscore the Court's 
observation in Brooks v. State Board of Elections. C.A. No. 
CV288-146 (S.D. Ga.), that the objection in no way implicates the 
validity of the actions taken by the judges who have been serving 
in the unprecleared judgeships. Memorandum Opinion and Order, at 
21-22 (Dec. 1, 1989). We are fully aware of the importance of 
the additional judgeships at issue to the proper functioning of 
the Georgia judicial system, and we will continue to work with 
the court and the parties in Brooks to assure that those needs 
are met consistent with the requirements of Section 5.

To enable this Department to meet its responsibility to 
enforce the Voting Rights Act, please inform us of the course of 
action the State of Georgia plans to take regarding these 
matters. If you have any questions concerning this letter, you 
may feel free to telephone Mark A. Posner, an attorney in the 
Voting Section (202-724-8338).

J U N S ’ Q Ca



- \ i u n  1 3  u  l  V  L'UJ 202 724 6961 P.06

- 5 -

Because the status of
Brooks v . Scats Board_o^
this letter to the court in

tne submitted changes is 
ections, we are providing 
that case.

at issue in 
a copy of

Sincerely,

John R. Dunne 
Assistant Attorney General 

Civil Rights Division

cc: Honorable Phyllis A. Kravitch 
United States Circuit Judge
Honorable B. Avant Edenfield 
United States District Judge
Honorable Dudley H. Bowen, Jr, 
United States District Judge



ug u X ld N S d d V



THE TEXAS JUDICIARY AND THE

VOTING RIGHTS ACT: 

BACKGROUND AND OPTIONS

A  STUDY CONDUCTED FOR THE 
TEXAS POLICY RESEARCH FORUM

by

SAMUEL ISSACHAROFF
Faculty, University of Texas School of Law

Consultant:
Thomas P. Prehoditch, Ph.D.

December 4, 1989



THE TEXAS JUDICIARY AND THE VOTING RIGHTS ACT

A STUDY CONDUCTED FOR THE 
TEXAS POLICY RESEARCH FORUM

Table of Contents

I. Introduction.............................................................................................. 1

II. Addressing the Problem...................................  2

III. Discussion of Remedial Alternatives................................................. 6
A. Martin v. M abus.......................................................................... 6
B. Single Member Districts.............................................................8
C. Limited Voting.......................................................................... 9

IV. Application of Remedies to Texas Courts....................................... 11
A. Creating Districts...................................................................... 13

1. Appellate Courts............................................................. 13
2. District Courts.............................................................  14

a. Districts over 300,000......................................  14
b. Multi-member/single county

districts under 300,000 ............................... 16
c. Multi-member districts comprising

multiple counties............................................16
d. Single member/single county

districts............................................................ 16
e. Single member/multi-county

districts............................................................ 16
B. Limited Voting............... 17

1. Appellate Courts............................................................. 17
2. District Courts.............................................................  18

V. Conclusion..............................................................................................19

VI. Appendices:
A. Multi-Member, Single County Court Districts,

Counties with over 300,000 Population.........................A - l
B. Multi-Member, Single County Court Districts

with No Overlapping Jurisdiction............................... B - 1



C. Multi-Member, Single County Court Districts
with Overlapping Jurisdiction........................................C - l

D. Multi-Member, Multi-County Court Districts
with No Overlapping Jurisdiction...............................D - 1

E. Multi-Member, Multi-County Court Districts
with Overlapping Jurisdiction........................................E - l

F. Single Member, Single County Court Districts
with No Overlapping Jurisdiction.................................. F - l

G. Single Member, Single County Court Districts
with Overlapping Jurisdiction........................................G - l

H. Single Member, Multi-County Court Districts
with No Overlapping Jurisdiction................................. H - l

I. Single Member, Multi-County Court Districts
with Overlapping Jurisdiction...................................... I - 1

ii



THE TEXAS JUDICIARY AND THE VOTING RIGHTS ACT: 

BACKGROUND AND OPTIONS

L Introduction

In the past four months, two separate federal court cases have ruled that 

substantial features of the election system for state court judges in Texas violate 

Section 2 of the Voting Rights Act. In the first of these, Rangel u. Mattox,1 Judge 

Vela of the Southern District of Texas struck down the system of electing judges to 

the Thirteenth Court of Appeals, which covers twenty counties in the Corpus 

Christi area. In November, Judge Bunton of the Western District of Texas in 

LULAC v. Mattox similarly declared unlawful the system of electing district court 

judges in nine of the most populous counties in the state.2 These cases hold that the 

use of multi-member judicial districts in the challenged areas of the state 

unlawfully dilutes the voting strength of minority citizens and must be replaced by 

an electoral system that provides minorities with an equal opportunity to elect 

judicial candidates of their choice. As cogently expressed by Judge Bunton, "Some 

fixing has to be done, because the current system is broken."3

This report addresses some legal and policy considerations in fashioning the 

"fixing" needed. By drawing on prior voting rights cases and an examination of the 

remedial plans previously implemented, it is hoped that a more informed decision 

can be reached, reconciling the need to provide meaningful participation to minority

1 - Civil A. No. B-88-053 (S.D. Tex., Brownsville Div. July 29, 1989).

2 - LULAC v. Mattox, Civil A. No. MO-88-CA-154 (W.D. Tex., Midland-Odessa Div. Nov. 8, 1989).
The nine counties are: Harris, Dallas, Tarrant, Bexar, Travis, Jefferson, Lubbock, Ector and 
Midland.

3 - Id.., slip op. at 4.

- 1 -



citizens and, at the same time, to preserve the integrity of judicial office. In so 

doing, this report will look beyond the nine counties and one appellate district that 

are the subject of current judicial orders to address the possibilities for integrated 

reforms on a state-wide basis.

EE. Addressing the Problem

As a consequence of the two recent Texas judicial election cases, the disparities 

between the number of minority voters and the limited number of successful 

minority judicial candidates can no longer be disregarded. The judiciary remains the 

province of government whose composition has changed least in the nearly 25 years 

since the passage of the Voting Rights Act. Thus, as of February 1989, there were 

375 district judges in Texas, of which 7 were black and 35 Hispanic: a total of 11.2 

percent in a state that had a 33 percent minority population as of the 1980 Census.4 

To a large extent, these numerical disparities are the product of an accident of 

history: the elected judiciary was not subjected to challenge under Section 2 of the 

Voting Rights Act until 1984 with the filing of the Mississippi judicial cases, Martin 

v. Allain and Kirksey v. Allain.5 Nonetheless, these disparities are genuine, as 

evidenced by the county by county breakdowns in the Appendices, comparing the 

demographic makeup of each district court or each county with the distribution of 

judicial office in that jurisdiction.

4 - Office of Court Administration, Texas Judicial Council, Texas Minority Judges, Feb. 10, 1989.
Subsequent to the publication of this data, eight district judgeships have been added.

5 - The liability phase of the Mississippi judicial litigation is reported as Martin v. Allain, 658 F.
Supp. 1183 (S.D. Miss. 1987). The remedy phase of this case is reported as Martin v. Mabus, 
700 F. Supp. 327 (S.D. Miss. 1988).

-2-



It is now established that Section 2 of the Voting Rights Act is applicable to

judicial elections.6 Given the applicability of Section 2, the district court findings in

the Texas judicial elections cases do not present a significant extension of the prior

voting rights caselaw. As expressed by Judge Johnson of the Fifth Circuit:

Minorities may not be prevented from using Section 2 in their efforts 
to combat racial discrimination in the election of state judges; a 
contrary result would prohibit minorities from achieving an effective 
voice in choosing those individuals society elects to administer and 
interpret the law.7

Indeed, the judicial cases can fairly be interpreted as the judicial replay of the 

landmark Texas legislative litigation of almost two decades ago. In that case, 

ultimately presented to the Supreme Court as White v. Regester,8 a mixed system of 

electing members of the state House of Representatives from single member and 

multi-member districts across the state was struck down for its discriminatory 

impact against minority citizens of Dallas and Bexar counties.

The same features that were struck down in White v. Regester have been 

challenged in a score of subsequent cases and now form the backbone of the court 

findings in the judicial cases. The use of multi-member districts in the context of 

racially polarized voting diminishes the value of the minority franchise by rewarding 

the majority community with superordinate representation.9 The problem is

6 - See Chisom v. Edwards, 839 F.2d 1056 (5th Cir. 1988), cert, denied sub nom. Roemer v. Chisom,
109 S.Ct. 390 (1989).

7 - Chisom u. Edwards, 839 F.2d at 1065. In light of the direct holding of Chisom and the fact that
Texas is within the Fifth Circuit, there appears little prospect for a direct appeal on the issue of 
the federal district court applications of the Voting Rights Act to the Texas state judiciary.

8 - The case was initially filed as Graves v. Barnes, 343 F. Supp. 704 (W.D. Tex. 1972) (three-judge
court). The decision of the three-judge court was affirmed by the Supreme Court under the 
name White v. Regester, 412 U.S. 755 (1973).

9 - A simple numerical model gives an example of what is meant by "superordinate"
representation. Assume that a jurisdiction is 60 percent white and 40 percent minority. If the 
white community and the minority community voted as cohesive blocs, known in the caselaw as 
racial bloc voting, any system that provided for equality of electoral opportunity would be 
expected to provide the white community with roughly 60 percent of elected positions and the 
minority community with 40 percent. Thus, in a five member city council, for example, one

- 3 -



compounded in judicial elections which generally have lower turnout, higher roll-off 

rates, and less voter interest.10 Moreover, judicial elections are easily controlled by 

an organized slating process.11

As a result of the lower levels of voter awareness of judicial elections, the fact 

of incumbency takes on a strong role as a critical "cue" in influencing the way votes 

are cast. The importance of incumbency is reflected in the extraordinary number of 

judges who first assumed their present office by appointment and were 

subsequently elected as incumbents. According to the most recent data available,

55 percent of courts of appeals judges and 64 percent of district court judges were 

appointed to office prior to first standing for election.12 This partially stems from 

the practice of judges not seeking re-election to resign their offices so that the

would expect 3 white councilmembers and 2 minority councilmembers. If the elections to the 
council are held at-large, however, and each voter is allowed to vote for all five positions, the 
cohesive 60 percent white voting bloc would elect all five councilmembers, a "superordinate" 
level of representation well beyond its proportionate size in the community as a whole.

Among the numerous cases finding racial bloc voting in diverse communities in Texas are: 
Lockhart v. United States, 460 U.S. 125 (1983); City of Port Arthur v. United States, 459 U.S. 
159 (1982); Campos v. City of Baytown, 840 F.2d 1240 (5th Cir. 1988), reh. denied en banc, 849 
F.2d 943 (5th Cir. 1988), cerf. denied, 109 S.Ct. 3213 (1989); LULAC v. Midland Ind. School 
Dist., 829 F.2d 546 (5th Cir. 1987); Political Civil Voters Org. v. City of Terrell, 565 F. Supp.
338 (N.D. Tex. 1983); Jones v. Lubbock, 727 F.2d 364 (5th Cir. 1984), reh. denied, 730 F.2d 233 
(5th Cir. 1984); Gilbert v. Sterrett, 509 F.2d 1389 (5th Cir. 1975), reh. denied, 515 F.2d 510 (5th 
Cir. 1975), cert, denied, 423 U.S. 951 (1975); Sierra v. El Paso Ind. School Dist., 591 F. Supp. 
802 (W.D. Tex. 1984); Mosely v. Sadler, 469 F. Supp. 563 (E.D. Tex. 1979); Greater Houston 
Civic Counsel v. Mann, 440 F. Supp. 696 (S.D. Tex. 1977).

10 - The lower visibility of judicial elections results in fewer number of votes being cast in judicial
contests, which typically are placed at the bottom of the ballot lists, than contests of higher 
recognition such as national or congressional elections. The drop in the number of votes cast is 
known as the "roll-off." See LULAC v. Mattox, slip op. at 88 ("This Court recognizes that 
judicial elections are characterized by less voter interest than high profile candidates receive at 
the top of the ticket."); Chisom v. Roemer, Civ. A. No. 86-4057 (E.D. La., Sept. 13, 1989), slip op. 
at 11.

11 - Because of the lower voter attention to bottom of the list elections discussed supra in the
context of roll-off rates, voters tend to follow "cues" in casting their votes in elections such as 
judicial elections. As a result, the most obvious cues, such as party slating, have strong 
significance in bottom of the list elections. See Williams v. State Board of Elections, No. 88 C 
2377 (N.D. 111., June 30, 1989), slip op. at 2-3.

12 - Office of Court Administration, Texas Judicial Council: Sixtieth Annual Report, p. 75
(information as of August 31, 1988).

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governor may appoint a successor. This also reflects the ability to influence judicial 

elections through the appointment process; appointments, even if short-term, confer 

the benefits of incumbency for subsequent elections.

The power of incumbency poses acute problems for minorities. To begin with, 

there is little evidence that the appointive process as exercised to date has 

addressed the problem of minority under-representation in the state judiciary.

Thus, of 36 appointments made between Jan. 20, 1987 and January 31, 1989, 33 of 

the appointed judges were white, 3 were Spanish sumamed, and none were black.13 

This included the appointment of seven white judges to the Dallas County district 

courts, despite the fact that the county is over 30 percent minority and only three of 

37 judges are minority. The problem for minorities is further compounded because 

the combination of polarized voting and multi-member districts deprives appointed 

minority incumbents of the benefits of their incumbent status, as was evidenced by 

the electoral defeats of black appointed incumbents, Jesse Oliver and Fred Tinsley, 

in Dallas County, in 1988 and 1986, respectively.

Texas is not unique in confronting the impact of judicial election systems at 

this time. States in which cases challenging judicial elections have recently been 

decided or are pending include Louisiana,14 Ohio,15 North Carolina,16 Arkansas,17

13 - These data are derived from cross-referencing records provided by the Office of the Governor
pursuant to a request by Texas Rural Legal Aid under the Open Records Act with information 
from Office of Court Administration, Texas Minority Judges (2/10/89). According to Office of 
Court Administration, Texas Minority District Judges Appointed January 1, 1979 - December 
31, 1988, there have been 206 appointments in the ten year period reported of which 21 were 
minority appointments. There is one additional minority appointment not reported in this 
document.

14 - Clark v. Edwards, No. 86-435-A (M.D. La., Aug. 15, 1988).

15 - See Mallory v. Eyrich, 839 F.2d 275 (6th Cir. 1988).

16 - See Republican Party v. Martin, C.A. No. 88-263 CIV-5 (E.D.N.C. 1988); see also Alexander v.
Martin, C.A. No. 86-1048 CIV-5 (E.D.N.C., 1987) (challenge to method of electing superior court 
judges settled by legislative initiative).

17 - Hunt v. State of Arkansas, C.A. No. PDC 89-406 (E.D. Ark., filed July 1989).

- 5 -



Alabama,18 Florida,19 Georgia,20 and Illinois.21 The strong likelihood of litigation 

exists in most states electing judges at large or from multi-member districts. 

Viewed from a national perspective, the problem is quite simple. As of 1985, only- 

four percent of judges in the United States were black and one percent Hispanic, 

despite a nation that was 18 percent black and Hispanic as of the 1980 Census.22

HI. Discussion of Remedial Alternatives

A. Martin v. Mabus

To date, the only case to address the issue of remedial alternatives for the 

dilution of minority voting strength in judicial elections is Martin u. Mabus,23 the 

Mississippi judicial elections case. Because the Mississippi case provided the 

federal court with the first opportunity to apply the remedial principles developed 

under the Voting Rights Act to judicial elections, the court's reasoning in that case 

bears careful examination. The principles that guided the Mississippi court were 

the following:

1. The relief granted must "completely remed[y] the prior dilution of 

minority voting strength and fully providef ] equal opportunity for

18 - SCLC v. Siegelman, No. 88-D-0462-N (N.D. Ala., June 7, 1989).

19 - Marzug A. Al-Hakim v. State of Florida, 88-1416-CIV-T-10-(A), (M.D. Fla., filed 1988).

20 - Brooks v. Glynn County, Georgia Bd. of Elections, Civ. A. No. CV 288-146 (S.D. Ga., filed 1988).

21 - See Williams v. State Board of Elections, No. C 2377 (N.D. 111., June 30, 1989).

22 - The most recent source on the composition of the judiciary is the 1985 publication of the Fund
for Modem Courts, Inc., The Success of Women and Minorities in Achieving Judicial Office.

23 - 700 F. Supp. 327 (S.D. Miss. 1988). This is the decision of the court on remedy. The liability
phase is reported as Martin v. Allain, 658 F. Supp. 1183 (S.D. Miss. 1987).

-6-



minority citizens to participate and to elect candidates of their 

choice."24

2. In fashioning a remedy, the electoral unit for each judgeship may be a 

geographical subunit of the judicial unit over which that judge will 

have jurisdiction. Thus, the court affirmed the propriety of "[s]ub- 

districts for election purposes with judges having district-wide 

jurisdiction . . . "25

3. While judicial elections are not held to the rigorous one person, one 

vote standard of legislative elections,26 population variances in any 

electoral districts used for judicial elections should be minimized to the 

extent possible.27

4. Because there will be less need to redistrict judicial offices because of 

minor shifts in population, established pre-existing electoral units 

should be used as the basis for any judicial electoral districts.28

24 - 700 F. Supp. at 331. This passage is quoted from the Senate Report that was the authoritative
legislative record of the 1982 amendments to the federal Voting Rights Act, 42 U.S.C. Sec. 1973 
et seq. See S.Rep. No. 417, 97th Cong., 2d Sess. (1982), reprinted in 1982 U.S. Code Cong. &
Ad. News 177.

25 - 700 F. Supp. at 332. This is consistent with several features of the Texas judicial code that
permit judges to exercise jurisdiction beyond their electoral base. These provisions include the 
assignment of judges across districts in order to alleviate caseload requirements and the right 
of the Chief Justice of the Texas Supreme Court to assign a justice of one court to temporary 
service on another court, or to assign a retired justice to such duty. These provisions are cited 
in Office of Court Administration, Texas Judicial Council: Sixtieth Annual Report, p. 102. 
During the year ending Aug. 31, 1988, 4,219 cross-district assignments were made in the 
district courts alone.

26 - Although the application of one-person, one-vote to judicial elections has not been the subject of
recent review by the courts, nonetheless the laxer standard of population variances was 
established in Wells v. Edwards, 347 F. Supp. 453, 454-55 (M.D. La. 1972) (three-judge court), 
affd mem., 409 U.S. 1095 (1973); see also Voter Information Project, Inc. v. City of Baton Rouge, 
612 F.2d 208, 211 (5th Cir. 1980).

27 - 700 F. Supp. at 332.

2 8 - Id.

- 7 -



5. Judicial candidates must be residents of the judicial district over which 

they will have jurisdiction, but do not need to be residents of any 

particular electoral sub-district. In light of the fact that the pool of 

candidates for judicial office is smaller than that of potential 

representatives and that judges are not entrusted with "representing" 

their constituencies as are legislators, there is no compelling need for 

residency within any particular electoral sub-district.29

B. Single Member Districts

The court’s decision in Martin u. Mabus therefore establishes that the 

process of electing judges may be remedied without altering the districts judges 

serve. In other words, judges may be selected from altered electoral configurations 

without changing the structure of the courts.

The court in Martin v. Mabus applied the five factors described above to 

adopt single member electoral sub-districts for judges that would retain their 

original district-wide jurisdiction once elected.30 The use of altered election 

districts in Mississippi has a direct parallel in the system already in place in New 

York City, allowing for the election of judges of city-wide civil jurisdiction from 

electoral sub-districts; the New York City system has been upheld against federal 

constitutional challenge.31

29 - 700 F. Supp. at 332-333. These observations appear to be equally applicable to this state. For 
appellate court judgeships in Texas, the requirements for office include being 35 years of age 
and having at least 10 years of legal practice or judicial office. For district court judgeships the 
requirements include 2 years residence in the district and 4 years of legal practice or judicial 
office.

30 - 700 F. Supp. at 332.

31 - See Cox v. Katz, 241 N.E.2d 747, 294 N.Y.S.2d 544 (Ct.App.N.Y. 1968), cert, denied, 394 U.S.
919 (1968).

- 8 -



There are also two other state systems under which the electoral base of 

state court judges is not coextensive with their judicial jurisdiction. In Georgia 

and North Carolina, judges are nominated from county judicial districts but 

elected state-wide. Both of these systems have been upheld against federal 

constitutional challenge.32 Moreover, in response to litigation, Louisiana, Illinois 

and North Carolina are in the process of adopting plans for the election of judges 

from circumscribed electoral sub-districts with their original judicial jurisdiction 

remaining intact.33

C. Limited Voting

The problem with multi-member systems, as explicated through the voting 

rights case law,34 is the winner-take-all feature by which a cohesive voting bloc of 

the majority community is rewarded with super-representation.35 In devising 

remedies to unlawful systems of judicial elections, it should be borne in mind 

that additional systems are in place that offer alternatives to electoral sub­

districts while curing the defects of multi-member districts. In particular, 

limited voting appears to be an attractive system for judicial elections, since it 

combines the checks of district-wide accountability of elected judges with a 

preventative measure against the exclusive domination of the electoral process 

by a cohesive, organized, well-financed voting bloc.

32 - See Holshouser v. Scott, 335 F. Supp. 928 (M.D.N.C. 1971) (three-judge court), summarily a ff d,
409 U.S. 807 (1972); Stokes v. Fortson, 234 F. Supp. 575'(N.D. Ga. 1964) (three-judge court).

33 - See, e.g., Public Act 86-786 (Senate Bill 789) of the 86th Illinois General Assembly (providing
for electoral sub-districts).

34 - See, e.g., Thornburg v. Gingles, 478 U.S. 30, 47 (1986).

35 - See note 9, supra, for an illustration of the super-representation available to a cohesive
majority community in at-large electoral configurations.

- 9 -



Limited voting is "limited" in the sense that each voter is to cast fewer votes 

than the total number of judgeships to be filled. Thus, each voter is still allowed to 

pass on each judicial candidate in that electoral district. However, each voter would 

be permitted to vote for, e.g., only three candidates for five judicial positions. As a 

result, limited voting denies to a cohesive voting majority the ability to exclude any 

representatives of an organized minority constituency.36

The limited voting system therefore preserves the accountability of each 

candidate to all voters in the district but takes away from a cohesive majority voting 

bloc the ability to have its candidates fill all judicial offices. Limited voting further 

has the advantage of not requiring redistricting to account for population shifts 

within electoral sub-districts. This last feature is of particular significance because 

of the imminence of the 1990 Census count and the potential need to realign 

electoral sub-districts after the new Census information becomes available in 1991.

Limited voting has a significant amount of support among academics who 

have analyzed various voting systems.37 Limited voting is used in a directly 

analogous situation in Pennsylvania for selection of Commonwealth Court judges,

36 - This is expressed as the threshold of exclusion. If the number of votes each voter may cast is
divided by the number of votes each voter may cast plus the number of seats to be filled, the 
threshold can be calculated. Thus, if each voter could cast three ballots in a five seat election 
the threshold of exclusion would be 3/8 or 37.5 percent. This means that any candidate getting 
over 37.5 percent of the votes could not be denied election whatever the configuration of 
remaining votes. This in turn means that any candidate who is the choice of 37.5 percent of the 
voters would be elected. This contrasts with the current multi-member election districts in 
which candidates of choice of 49 percent of the voters may be defeated if the majority 51 
percent bloc votes cohesively for slate candidates.

37 - See, e.g., E. Still, "Alternatives to Single-Member Districts," in C. Davidson, (ed.), Minority Vote
Dilution, pp. 242-267; L. Weaver, "Semi-Proportional and Proportional Representation Systems 
in the United States," in A. Lijpart and B. Grofman (eds.), Choosing an Electoral System:
Issues and Alternatives, pp. 191-206; Note, Affirmative Action and Electoral Reform, 90 YALE 
L.J. 1811-32 (1981); Note, Alternative Voting Systems as Remedies for Unlawful Ad-Large 
Systems, 92 Yale L.J. 144-60 (1982); Karlan, Maps and Misreadings: The Role of Geographic 
Compactness in Racial Vote Dilution Litigation, 24 HARV. C.R.C.L. L. REV. 173, 223-36 (1989).

- 10 -



and has been upheld against federal constitutional challenge.38 The use of limited 

voting has also been upheld against constitutional challenge in cases involving the 

election of local legislative bodies.39 In addition, limited voting has been adopted as 

a remedy in federal court cases involving dilution of minority voting strength as a 

result of at-large or multi-member district elections.40

IV. Application of Remedies to Texas Courts

Single member districts and limited voting thus have in common that in both 

systems judges have jurisdiction over a full judicial district although they are 

elected by a subset of that judicial jurisdiction. The use of these remedial systems 

to cure the problems of racial exclusion in elections also addresses an important 

problem that is of considerable significance yet goes beyond the racial impact 

inquiry of the federal courts. In Harris and Dallas counties, there are currently so 

many district judgeships to be filled in any given election that informed voter 

participation is extraordinarily difficult. By creating sub-districts with more 

manageable slates of candidates, the prospect for intelligent and active voter 

participation in the election of judges would be considerably enhanced.

This proposal for altering the system of electing district court and appellate 

court judges will attempt to address the concerns of minority underrepresentation

38 - See Orloski v. Davis, 564 F. Supp. 526 (M.D. Pa. 1983).

39 - See Hechinger v. Martin, 411 F. Supp. 650 (D.C.D.C. 1976), affd, 429 U.S. 1030 (1977);
LoFrisco v. Schaffer, 341 F. Supp. 743 (D. Conn. 1972), affd, 409 U.S. 972 (1972); Kaelin v. 
Warden, 334 F. Supp. 602 (E.D. Pa. 1971); Blaikie v. Power, 13 N.Y.2d 134, 143, 243 N.Y.S.2d 
185 (1963), appeal dissm'd, 375 U.S. 439 (1964); see also Am. Jur. 2d Elections Sec. 276 (citing 
other examples of limited voting).

40 - See McGee v. Granville County, No. 87-29-CIV-5 (E.D.N.C., Feb. 4, 1988) (county
commissioners); Dillard v. Town of Loachapoka, Civ. A. No. 87-T1248-N (M.D. Ala., Feb. 2, 
1988) (city council); Dillard v. Town of Webb, Civ. A. No. 87-T1311-N (M.D. Ala., April 1, 1988) 
(city council).

- 11 -



within the confines of the current judicial system. To the extent possible, this 

proposal adopts the remedial framework of Martin u. Mabus in seeking to alter the 

electoral configurations for the affected judgeships without changing the judicial 

jurisdiction of the judgeships.

The existence of courts of specialized jurisdiction in Texas, such as the 

probate or criminal courts, poses special remedial problems. In any remedial 

system adopted, there will be some difficulty allowing for the election of the sole 

probate judge in a county from a single electoral sub-district. It is difficult to 

configure rational districts that would allow voters of one sub-district to elect only 

a probate judge or criminal judge, while denying to the remainder of the county or 

jurisdiction the right to participate in that process. In LULAC v. Mattox, Judge 

Bunton proposed that this problem be remedied by abolishing the courts of 

specialized jurisdiction and moving to a unified system of courts of general 

jurisdiction.41 If the suggestion of Judge Bunton that such courts of specialized 

jurisdiction be abolished is not followed, the most readily apparent solution would 

be an administrative one in which the judges run for election to the courts of the 

jurisdiction as a whole, with appointment to the specialized court reserved to the 

administrative authority of the presiding judge.

In what follows, two alternative remedial options for selecting Texas 

appellate and district judges are considered: (1) creating districts; and, (2) limited 

voting.

41 - Slip op. at 78.

- 12-



A. Creating Districts

1. Appellate Courts

Excluding the Supreme Court and the Court of Criminal Appeals, currently 80 

appellate judges are elected from 14 judicial districts. Of the 80 judges, there are no 

blacks and 3 Hispanics, yielding a minority percentage of under 4 percent.42 The 

district lines are not discrete, with some counties appearing in more than one judicial 

district; Brazos County is in three separate judicial districts. By applying the 

remedial principle adopted by the federal district court in Martin v. Mabus, single 

member districts can be created within each of the current judicial districts, as 

directed by the court in Rangel v. Mattox for the Thirteenth Court of Appeals.

Any reexamination of the structure of appellate court districts, however, 

must confront both the odd array of judicial districts and the imbalance between the 

number of Supreme Court justices and Court of Criminal Appeals judges on the one 

hand and appellate court districts on the other. Should the legislature undertake to 

reconsider the rationale for the current appellate judicial alignment, it may wish to 

consider the creation of nine appellate districts, each geographically defined and 

each under the direct supervision of one Supreme Court justice and one Court of 

Criminal Appeals judge. The creation of one additional appellate judgeship would 

balance the nine districts at nine judges each. The nine judicial districts could then 

be broken down into single member districts for electoral purposes, such as the 

remedy mandated by the court in Rangel v. Mattox for the Thirteenth Court of 

Appeals.

42 - Office of Court Administration, Texas Judicial Council, Texas Minority Judges, Feb. 10, 1989.

- 1 3  -



2. District Courts

a. Districts over 300.000: As of the 1980 Census there are six 

counties in this category, ranging in size from Harris (2.4 million, 59 judges) to 

Travis (419,000, 13 judges). In addition, the 1986 Census projections would bring 

Hidalgo and Nueces above 300,000. These counties could be subdivided for electoral 

purposes to create geographically-confined, multi-member sub-districts.43

This process is facilitated by the fact that these districts are already 

subdivided for judicial purposes along Justice of the Peace Court jurisdictions.

These in turn range between 8 districts for Harris, Dallas, and Tarrant; 6 districts 

for El Paso; and 5 districts for Bexar and Travis. Hidalgo has 5 districts and 

Nueces has 8 districts within the county. In addition, all of these counties are also 

already subdivided along county commissioner district lines, and all counties in the 

state of Texas have four county commissioner districts. Finally, each of these 

counties is also divided along House legislative districts and, as the following table 

shows, these legislative districts offer significant additional remedial options in 

Harris and Dallas counties.44

43 - The analysis of Nueces is complicated by the fact that in addition to the seven judgeships
within Nueces, there is an eighth district incorporating Nueces together with Kennedy and 
Kleberg counties. All seven judges serving Hidalgo County are elected within that county.

44 - In addition to the districts listed below, House district 47 includes part of Travis county
together with three other counties.

- 14 -



For ease of review, the six counties are arrayed as follows:

Countv Judges JP Dists Leg,pi?t§ Ctv Comm.

Harris 59 8 26 4

Dallas 37 8 17 4

Tarrant 23 8 9 4

Bexar 19 5 10 4

Travis 13 5 4 4

El Paso 8 6 5 4

In Harris, Dallas, Tarrant, Travis and Bexar counties the district court 

judgeships could be subdivided for electoral purposes using existing JP district 

lines. In El Paso, the eight existing judgeships45 could be divided among the six JP 

districts by forming three electoral districts. Each electoral district would be 

comprised of two JP districts. Two of the electoral districts could each elect three 

district judges, and the remaining electoral district could elect two district judges. 

Nueces could elect two judges each from three electoral districts comprised of two 

JP districts and one judge from an electoral district comprised of the two least 

populous JP districts. Hidalgo could be broken down into two electoral districts, 

one comprised of three JP districts and one of two JP districts. The larger district 

would elect four judges and the smaller would elect three.

If these counties were subdivided along county commissioner district lines, 

they would elect between two and fifteen judges per county commissioner district 

according to the number of judges in each county. Similarly, if Harris and Dallas

45 - In addition to the eight judges elected exclusively from El Paso, there are three elected from El 
Paso together with Culberson and Hudspeth. As with the overlap in Nueces County, the multi- 
judge/multi-member districts are treated below.

- 15-



counties were divided along House legislative lines, each sub-district would elect 

two to three judges.

b. Multi-member/single county districts under 300.000: 

With the exception of Jefferson County, which may soon reach the 300,000 figure, 

these counties have five or fewer district court judges; Jefferson has eight.

Because of the small numbers, the only meaningful alternative districting system 

appears to be one breaking down these counties into single member districts, along 

JP district lines where these are available, or along county commissioner or other 

electoral unit lines.

c. Multi-member districts comprising multiple counties: 

In districts such as those serving Cameron and Willacy Counties, multi-member 

districts serving multiple counties would be broken down into single member 

districts (as with multi-member/single county districts under 300,000) following 

county, JP district, county commissioner district, or other available electoral lines.

d. Single member/single countv districts: These would 

remain as is under any alternative system that alters only the electoral base of the 

judgeships but preserves — as all the proposals contained herein do -- the preexisting 

judicial jurisdiction of the affected judgeships.

e. Single member/multi-countv districts: Unlike the single 

member/single county districts, the single member/multi-county judgeships are of 

two sorts. First, there are courts such as judicial district 118 comprising Glasscock, 

Martin and Howard counties that are for all purposes the equivalent of a single 

member/single county judgeship, except for the presence of several counties within 

the judicial district. In addition, there are counties that are served by several single 

member/multi-county judgeships, such as Polk County which is in District 9 with

- 16-



Montgomery, San Jacinto and Waller counties; in District 2nd 9 with Montgomery, 

San Jacinto and Trinity counties; and in District 258 with San Jacinto and Trinity 

counties.

In the case of the single member/multi-county districts such as District 118, 

no alteration can be proposed. In the case of the patchwork districts scattered 

throughout the state, no proposals can be consistent with the premise of this 

analysis that no judicial jurisdictions shall be altered. Nonetheless, any legislative 

initiative aimed at reviewing the state judiciary may well wish to reconsider the 

rationale for the complicated jurisdictional patterns found in numerous district 

court judgeships.

B. Limited Voting

1. Appellate Courts

Under the current system of 14 appellate court districts, there are between 

thirteen judges (5th Appellate District) and three judges (5 districts: 6th, 9th, 10th,

11th, 12th) in each district. In order to provide for a limited voting system that will 

also allow for minority electoral opportunity in those districts in which there are 

minority concentrations, it will be necessary to limit each voter to votes roughly 

equal to 60 percent of the total number of seats to be filled in any election. Thus, in 

the 5th Appellate District, four or five judges would be up for election every two 

years, and voters would be allowed two or three ballots, depending on the number of 

judicial offices to be filled. In the smaller districts, such as those containing only

- 17-



three judges, it will be necessary to elect all judges at once, and allow each voter 

only two ballots.46

Alternatively, if the appellate courts were reorganized into nine equal 

districts, elections could be held every two years for three members of each court.

In such elections, each voter would be allowed to cast two ballots. Such a system 

would allow for cohesive minority populations to achieve representation and would 

bring the entire appellate system under one administrative rubric.

2. District Courts

For purposes of the district courts, a system of limited voting would require 

no subdivisions for electoral purposes except in the largest counties. For all 

district courts other than those in Harris, Dallas, and possibly Tarrant, it would be 

possible to hold elections using the same principles set forth above in the 

discussion of the appellate court districts. Specifically, voters would be allowed to 

cast a number of ballots equal to roughly 60 percent of the judicial offices to be 

filled at any given time. In order for this system to work, at least three judges 

would have to be elected in any given election.

Limited voting is a viable remedial system in the largest counties as well, if 

the problem is addressed solely in terms of the prospects for minority electoral 

opportunity. However, limited voting alone will not cure the problem of overly large 

slates of judicial candidates running at any given time and the consequent problem 

of voter lack of information and disinterest. The size of Harris, Dallas, and possibly 

Tarrant counties makes some subdistricting preferable even within the context of a

46 - In order to remedy the problem of minority exclusion, it would be necessary to have limited
voting at all levels of elections, such as both primary and general elections in a partisan voting 
system.

- 18-



limited voting system. For example, were each of these counties to be subdistricted 

for electoral purposes along county commissioner lines, a limited voting system 

would then provide a meaningful opportunity for minority-preferred candidates, as 

well as provide a manageable number of judicial races for purposes of informed 

voter participation.

V. Conclusion

The two Texas judicial election decisions present both a challenge and an 

opportunity. The challenge is that a system of electing judges has been found to 

exclude a large and growing part of the state's population. This will have to be 

remedied, either by legislative initiative or by directives from the federal courts. 

The opportunity is that a system which has emerged without clear direction may be 

re-examined under the press of the federal court decisions to determine what 

judicial structures will best serve the citizens of this state. The legacies of the past 

need not be the inheritances of the future.

a:\TXT\RLa8VHLM. 124

- 19-



Appendix A

MULTI-MEMBER, SINGLE COUNTY COURT DISTRICTS*
COUNTIES OVER 300,000 POPULATION (AS OF 1980 CENSUS)

CO. #COURTS POPULATION BLACK% HISP.% #H #B

Bexar 19 988,800 6.97% 46.60% 5 0

Dallas 37 1,556,390 18.36% 9.90% 1 2

El Paso 8 479,899 3.83% 61.93% 4 0

Harris 59 2,409,547 19.6% 15.28% 3 3
Tarrant 23 860,880 11.7% 7.85% 0 2

Travis 13 419,573 10.68% 17.24% 0 0

Total: 6,715,089

* These counties have 159 of the 384 existing district courts. There are 
presently 13 Hispanics and 7 Blacks sitting as district court judges in 
these counties. As of the 1980 census, 58.13% of the state s Black 
population and 47.57% of the state’s Hispanic population was in these 
six counties.

All of the data in this appendix and the appendices that follow are 
derived from U.S. Bureau of the Census, County and City Data Book, 
1983. The racial and ethnic background of district court judges is 
found in Office of Court Administration, Texas Judicial Council, Texas 
Minority Judges, Feb. 10, 1989.

A - 1



Appendix B

MULTI-MEMBER, SINGLE COUNTY COURT DISTRICTS
WITH NO OVERLAPPING JURISDICTION

COUNTY POPULATION COURT BLACK% HISP.% R/E

Angelina 64,172 159 15.05% 6.20% W
217 W

Brazos 93,588 272 11.17% 10.19% W
361 W
85 W

Collin 144,576 199 4.30% 4.89% W
219 W
296 w
366 w

Denton 143,126 158 4.29% 4.39% w
16 w

211 w
362 w
367 w

Ector 115,374 161 4.41% 21.51% w
244 w
358 w
70 w

Fort Bend 130,846 240 15.61% 20.40% w
268 w
328 w

Galveston 195,940 10 18.59% 12.07% w
122 w
212 w
306 w
56 w

Gregg 99,487 124 17.92% 2.03% w
188 w
307 w

Hidalgo 283,229 139 00.19% 81.31% H
206 w
275 H
332 H
370 Vacant
92 H
93 H

B -1



Appendix B

COUNTY POPULATION COURT BLACK% HISP.% R/E

Jefferson 250,938 136 28.23% 
172 
252 
279 
317 
58

Criminal District Court 
60

4.08%

W

McLennan 170,755 170
19
54
74

15.95% 8.86%

Midland 82,636 142
238
318

8.78% 14.90%

Orange 83,838 128
163
260

8.16% 2.33%

Wichita 121,082 30
78
89

8.94% 6.57%

Williamson 76,521 26
277
368

5.51% 12.60%

60 District Courts

These 15 counties have 60 district courts and represent 
2,056,108 Texans (14.44% of the state total). There is a total of 5 
Hispanics and 0 Blacks presently sitting as judges of these district 
courts.

B - 2

3
3

3
 

3
3

3
3

 
3 

3
3

3
3

3
3



Appendix C

MULTI-MEMBER, SINGLE COUNTY COURT DISTRICTS
WITH OVERLAPPING JURISDICTION

COUNTY POPULATION COURT BLACK% HISP.% R/E

Bell 157,889 146
169
264

16.36% 11.02%

Brazoria 169,587 149
239
300

7.75% 13.26%

Grayson 89,796 15
59

6.97% 1.32%

Lubbock 211,651 137
140
237
364
99

7.25% 19.53%

Montgomery 128,487 221
284
359

4.77% 3.22%

Nueces 268,215 117
148
214
28

319
347
94

4.56% 48.95%

Potter 98,637 108
320

8.13% 11.71%

Smith 128,366 241
321

7

21.90% 3.18%

Taylor 110,932 104
326
350

6.11% 11.79%

Webb 99,258 111
341

0.06% 91.50%

33 District Courts

There are presently 6 Hispanics and 0 Blacks sitting as district judges 
in these district courts.

C - 1

Ba
 

35
=3

 
3a
 3

a3
33

B
3 

33
3 

3
33

33
 

33
 

33
3 

33
3



Appendix D

MULTI-MEMBER, MULTI-COUNTY COURT DISTRICTS
WITH NO OVERLAPPING JURISDICTION

COURT COUNTY POPULATION BLACK% HISP.% R/E

103 Cameron 209,727 0.45% 77.10% W
Willacy 17,495 0.64% 80.30%

Total: 227,222 0.46% 77.35%

107 Cameron 209,727 0.45% 77.10% H
Willacy 17,495 0.64% 80.30%

Total: 227,222 0.46% 77.35%

138 Cameron 209,727 0.45% 77.10% H
Willacy 17,495 0.64% 80.30%

Total: 227,222 0.46% 77.35%

197 Cameron 209,727 0.45% 77.10% W
Willacy 17,495 0.64% 80.30%

Total: 227,222 0.46% 77.35%

357 Cameron 209,727 0.45% 77.10% H
Willacy 17,495 0.64% 80.30%

Total: 227,222 0.46% 77.35%

24 Calhoun 19,574 2.73% 33.88% W
De Witt 18,903 10.91% 23.04%
Goliad 5,193 9.15% 35.36%
Jackson 13,352 10.42% 18.81%
Refugio 9,289 8.05% 36.37%
Victoria 68,807 6.96% 30.35%

Total: 135,118 7.40% 29.30%

135 Calhoun 19,574 2.73% 33.88% W
De Witt 18,903 10.91% 23.04%
Goliad 5,193 9.15% 35.36%
Jackson 13,352 10.42% 18.81%
Refugio 9,289 8.05% 36.37%
Victoria 68,807 6.96% 30.35%

Total: 135,118 7.40% 29.30%

D -  1



Appendix D

COURT COUNTY POPULATION BLACK% HISP.% R/E

267

36

156

343

81

Calhoun 19,574 2.73% 33.88%
DeWitt 18,903 10.91% 23.04%
Goliad 5,193 9.15% 35.36%
Jackson 13,352 10.42% 18.81%
Refugio 9,289 8.05% 36.37%
Victoria 68,807 6.96% 30.35%

Total: 135,118 7.40% 29.30%

Aransas 14,260 1.74% 19.08%
Bee 26,030 2.41% 45.90%
Live Oak 9,606 - 32.03%
McMullen 789 - 34.47%
San Patricio 58,013 1.08% 46.36%

Total: 108,698 1.38% 41.32%

Aransas 14,260 1.74% 19.08%
Bee 26,030 2.41% 45.90%
Live Oak 9,606 - 32.03%
McMullen 789 - 34.47%
San Patricio 58,013 1.08% 46.36%

Total: 108,698 1.38% 41.32%

Aransas 14,260 1.74% 19.08%
Bee 26,030 2.41% 45.90%
Live Oak 9,606 - 32.03%
McMullen 789 - 34.47%
San Patricio 58,013 1.08% 46.36%

Total: 108,698 1.38% 41.32%

Atascosa 25,055 0.37% 47.83%
Frio 13,785 0.34% 68.39%
Karnes 13,593 2.54% 43.19%
La Salle 5,514 - 73.70%
Wilson 16,756 1.01% 36.48%

Total: 74,703 0.88% 50.27%

W

W

W

H

W

D - 2



Appendix D

COURT COUNTY POPULATION BLACK% HISP.% R/E

218 Atascosa 25,055 0.37% 47.83% W
Frio 13,785 0.34% 68.39%
Karnes 13,593 2.54% 43.19%
La Salle 5,514 - 73.70%
Wilson 16,756 1.01% 36.48%

Total: 74,703 0.88% 50.27%

18 Johnson 67,649 2.66% 4.23% W
Somervell 4,154 0.10% 6.91%

Total: 71,803 2.51% 4.38%

249 Johnson 67,649 2.66% 4.23% W
Somervell 4,154 0.10% 6.91%

Total: 71,803 2.51% 4.38%

21 Bastrop 24,726 17.22% 13.48% W
Burleson 12,313 21.87% 10.01%
Lee 10,952 16.13% 5.68%
Washington 21,998 22.09% 2.98%

Total: 69,989 19.40% 8.34%

335 Bastrop 24,726 17.22% 3.48% W
Burleson 12,313 21.87% 10.01%
Lee 10,952 16.13% 5.68%
Washington 21,998 22.09% 2.98%

Total: 69,989 19.40% 8.34%

64 Castro 10,556 3.26% 38.53% w
Hale 37,592 4.94% 33.64%
Swisher 9,723 4.66% 27.48%

Total: 57,871 4.58% 33.50%

242 Castro 10,556 3.26% 38.53% w
Hale 37,592 4.94% 33.64%
Swisher 9,723 4.66% 27.48%

Total: 57,871 4.58% 33.50%

D -3



Appendix D

COURT COUNTY POPULATION BLACK% HISP.% R/E

293 Dimmit
Maverick
Zavala

11,36
31,398
11,666

0.40%
0.07%
0.21%

78.02%
90.34%
89.03%

H

Total: 54,431 0.17% 87.48%

365 Dimmit
Maverick
Zavala

11,36
31,398
11,666

0.40%
0.07%
0.21%

78.02%
90.34%
89.03%

W

Total: 54,431 0.17% 87.48%

Count: 21 District Courts

There are presently 5 Hispanics and 0 Blacks sitting as judges on 
these district courts.

D - 4



Appendix E

MULTI-MEMBER, MULTI-COUNTY COURT DISTRICTS
WITH OVERLAPPING JURISDICTION

COURT COUNTY :POPULATION BLACK% HISP.% R/E

34 Culberson 3,315 63.38% W
El Paso 479,899 3.83% 61.93%
Hudspeth 2,728 0.18% 58.25%

Total: 485,942 3.78% 61.91%

205 Culberson 3,315 _ 63.38% W
El Paso 479,899 3.83% 61.93%
Hudspeth 2,728 0.18% 58.25%

Total: 485,942 3.78% 61.91%

210 Culberson 3,315 63.38% W
El Paso 479,899 3.83% 61.93%
Hudspeth 2,728 0.18% 58.25%

Total: 485,942 3.78% 61.91%

181 Potter 98,637 8.13% 11.71% w
Randall 75,062 0.74% 4.64%

Total: 173,699 4.94% 8.65%

251 Potter 98,637 8.13% 11.71% w
Randall 75,062 0.74 % 4.64%

Total: 173,699 4.94% 8.65%

25 Colorado 18,823 18.25% 14.02% w
Gonzales 16,883 11.63% 28.81%
Guadalupe 46,708 6.62% 25.4%
Lavaca 19,004 7.61% 6.86%

Total: 101,418 9.80% 20.38%

2nd 25 Colorado 18,823 18.25% 14.02% w
Gonzales 16,883 11.63% 28.81%
Guadalupe 46,708 6.62% 25.4%
Lavaca 19,004 7.61% 6.86%

Total: 101,418 9.80% 20.38%

E - l



Appendix E

COURT COUNTY POPULATION BLACK% HISP.% R/E

22 Caldwell 23,637 16.36% 32.80% W
Comal 36,446 0.98% 23.93%
Hays 40,594 2.99% 30.52%

Total: 100,677 5.40% 28.67%

207 Caldwell 23,637 16.36% 32.80% W
Comal 36,446 0.98% 23.93%
Hays 40,594 2.99% 30.52%

Total: 100,677 5.40% 30.52%

12 Grimes 13,580 27.75% 9.45% W
Leon 9,594 19.88% 2.57%
Madison 10,649 24.76% 7.65%
Walker 41,789 24.24% 7.30%

Total: 75,612 24.39% 7.14%

278 Grimes 13,580 27.75% 9.45% w
Leon 9,594 19.88% 2.57%
Madison 10,649 24.76% 7.65%
Walker 41,789 24.24% 7.30%

Total: 75,612 24.39% 7.14%

Count: 11 District Courts

There are presently 0 Hispanics and 0 Blacks sitting as judges in these 
11 district courts.

E - 2



Appendix F

SINGLE MEMBER, SINGLE COUNTY COURT DISTRICTS
WITH NO OVERLAPPING JURISDICTION

COURT COUNTY POPULATION BLACK% HISP.% R/E

2 Cherokee 38,127 18.47% 3.38% W

4 Rusk 41,382 21.78% 1.69% W

13 Navarro 35,323 20.05% 3.90% w
20 Milam 22,732 13.47% 10.73% w
29 Palo Pinto 24,062 3.27% 5.45% w
40 Ellis 59,743 12.41% 9.51% w
43 Parker 44,609 0.87% 3.12% w
52 Coryell 56,767 19.02% 8.52% w
66 Hill 25,024 10.20% 5.61% w
71 Harrison 52,265 31.48% 1.59% w
86 Kaufman 39,015 18.96% 3.92% w
91 Eastland 19,480 1.95% 4.44% w
145 Nacogdoches 46,786 17.03% 3.20% w
154 Lamb 18,669 6.18% 30.32% w
235 Cooke 27,656 4.40% 1.83% w
266 Erath 22,560 0.66% 4.14% w
355 Hood 17,714 0.08% 2.81% w

Count: 17 District Courts

There are presently 0 Hispanics and 0 Blacks sitting as judges in these 
district courts.

F - 1



Appendix G

SINGLE MEMBER, SINGLE COUNTY COURT DISTRICTS
WITH OVERLAPPING JURISDICTION

COURT COUNTY POPULATION BLACK% HISP.% R/E

75 Liberty 47,088 14.37% 1.75% W

130 Matagorda 37,826 14.67% 20.90% W

173 Henderson 42,606 10.85% 1.17% w
196 Hunt 55,248 12.72% 2.44% w
202 Bowie 75,301 21.98% 1.17% w
223 Gray 26,386 3.9% 4.13% w
316 Hutchinson 26,304 2.94% 4.54% w
329 Wharton 40,242 16.60% 21.76% w
340 Tom Green 84,784 4.02% 21.14% H

344 Chambers 18,538 14.34% 3.55% w
356 Hardin 40,721 10.05% 1.38% w
377 Victoria 68,807 6.96% 30.35% w

Count: 12 District Courts

There are presently 1 Hispanic and 0 Blacks sitting as judges in these 
12 district courts.

G - 1



Appendix H

SINGLE MEMBER, MULTI-COUNTY COURT DISTRICTS
WITH NO OVERLAPPING JURISDICTION

COURT COUNTY POPULATION BLACK% HISP.% R/E

32 Fisher 5,891 3.33% 18.38% W
Mitchell 9,088 5.14% 25.13%
Nolan 17,359 4.77% 19.54%

Total: 32,338 4.61% 20.90%

33 Blanco 4,681 0.81% 9.23% W
Burnet 17,803 2.00% 7.18%
Llano 10,144 0.24% 2.83%
Mason 3,683 0.30% 16.24%
San Saba 6,204 0.68% 15.60%

Total: 42,515 1.11% 8.38%

38 Medina 23,164 0.56% 43.35% W
Real 2,469 - 22.36%
Uvalde 22,441 0.46% 55.23%

Total: 48,074 0.48% 47.82%

39 Haskell 7,725 4.44% 15.47% W
Kent 1,145 1.66% 8.12%
Stonewall 2,406 1.87% 7.27%
Throckmorton 2,053 - 5.36%

Total: 13,329 3.05% 11.80%

46 Foard 2,158 4.49% 11.03% W
Hardeman 6,368 8.17% 8.01%
Wilbarger 15,931 8.38% 9.30%

Total: 24,457 7.98% 9.12%

50 Baylor 4,919 3.64% 6.22% w
Cottle 2,047 6.82% 14.15%
King 425 4.94% 8.71%
Knox 5,329 7.07% 17.77%

Total: 12,720 5.62% 12.42%

H - 1



Appendix H

COURT COUNTY POPULATION BLACK% HISP.% R/E

63 Edwards 2,033 0.25% 47.57% W
Kinney 2,279 3.51% 57.48%
Terrell 1,595 - 43.32%
Val Verde 35,910 1.82% 62.97%

Total: 41,817 1.81% 62.68%

69 Dallam 6,531 2.51% 16.74% W
Hartley 3,987 - 4.46%
Moore 16,575 0.23% 19.63%
Sherman 3,174 0.35% 11.47%

Total: 30,267 0.70% 16.15%

79 Brooks 8,428 85.99% H
Jim Wells 36,498 0.62% 67.18%

Total: 44,926 0.50% 70.71%

82 FaHs 17,946 27.21% 9.17% W
Robertson 14,653 32.07% 9.34%

Total: 32,599 29.39% 9.24%

90 Stephens 9,926 3.26% 5.74% W
Young 19,083 1.38% 3.76%

Total: 29,009 2.02% 4.44%

97 Archer 7,266 0.65% 1.38% w
Clay 9,582 0.99% 1.00%
Montague 17,410 0.02% 1.12%

Total: 34,258 0.15% 0.86%

100 Carson 6,672 0.28% 3.87% w
Childress 6,950 5.24% 9.76%
Collingsworth 4,648 7.34% 11.92%
Donley 4,075 4.27% 3.29%
Hall 5,594 7.65% 14.93%

Total: 27,939 4.75% 8.80%

H - 2



Appendix H

COURT COUNTY POPULATION BLACK% HISP.% R/E

106 Dawson 16,184 3.59% 37.64% W
Gaines 13,150 2.01% 30.80%
Garza 5,336 6.11% 24.06%
Lynn 8,605 3.22% 37.93%

Total: 43,275 3.35% 33.95%

109 Andrews 13,323 1.52% 21.78% W
Crane 4,000 0.83% 24.52%
Winkler 9,944 2.42% 25.80%

Total: 27,267 1.75% 23.65%

110 Briscoe 2,579 1.78% 17.33% W
Dickens 3,559 4.61% 16.59%
Floyd 9,834 4.63% 33.88%
Motley 1,950 5.28% 7.90% w
Total: 17,922 4.29% 25.24%

118 Glasscock 1,304 28.83% w
Howard 33,142 3.96% 21.02%
Martin 4,684 1.94% 34.59%

Total: 39,130 3.58% 22.91%

121 Terry 14,581 3.39% 33.97% w
Yoakum 8,299 1.57% 27.79%

Total: 22,880 2.73% 31.73%

132 Borden 859 0.70% 13.50% w
Scurry 18,192 3.67% 18.63%

Total: 19,051 3.54% 18.40%

143 Loving 91 35.16% w
Reeves 15,801 2.82% 61.93%
Ward 13,976 2.94% 27.00%

Total: 29,868 2.87% 45.50%

W  - 3



Appendix H

COURT COUNTY POPULATION BLACK% HISP.% R/E

220 Bosque
Comanche
Hamilton

13,401
12,617
8,297

02.07%
0.16%

05.14%
10.64%
3.34%

W

Total: 34,315 0.87% 6.73%

222 Deaf Smith 
Oldham

21,165
2,283

1.90%
0.53%

40.66%
5.56%

W

Total: 23,448 1.77% 37.24%

229 Duval 
Jim Hogg 
Starr

12,517
5,168

27,266

0.19% 85.42%
90.54%
96.86%

H

Total: 44,951 0.05% 92.95%

259 Jones
Shackelford

17,268
3,915

4.05%
0.89%

14.78%
5.39%

W

Total: 21,183 3.47% 13.04%

271 Jack
Wise

7,408
26,575

1.00%
0.86%

1.57%
5.10%

w
Total: 33,983 0.89% 4.33%

286 Cochran
Hockley

4,825
23,230

6.40%
4.03%

34.90%
27.09%

w
Total: 28,055 4.44% 28.43%

287 Bailey
Parmer

8,168
11,038

1.79%
1.57%

33.91%
32.67%

w
Total: 19,206 1.67% 33.20%

Count: 27 District Courts

There are presently 2 Hispanics and 0 Blacks sitting as judges in these 
district courts.



Appendix I

SINGLE MEMBER, MULTI-COUNTY COURT DISTRICTS
WITH OVERLAPPING JURISDICTION

COURT COUNTY POPULATION BLACK% HISP.% R/E

1 Jasper 30,781 19.30% 1.05% W
Newton 13,254 24.02% 0.45%
Sabine 8,702 15.79% 1.78%
San Augustine 8,785 29.61% 1.47%

Total: 61,522 21.29% 1.08%

1A Jasper 30,781 19.30% 1.05% W
Newton 13,254 24.02% 0.45%
Tyler 16,223 12.93% 0.65%

Total: 60,258 18.62% 0.81%

3 Anderson 38,381 21.34% 4.82% W
Henderson 42,606 10.85% 1.17%
Houston 22,299 32.35% 3.70%

Total: 103,286 19.39% 3.07%

5 Bowie 75,301 21.98% 01.17% W
Cass 29,430 21.95% 0.84%

Total: 104,731 21.97% 1.07%

6 Fannin 24,285 7.49% 1.32% W
Lamar 42,156 14.89% 0.64%
Red River 16,101 20.24% 1.94%

Total: 82,542 13.76% 1.09%

8 Delta 4,839 8.12% 0.27% w
Franklin 6,893 5.51% 0.90%
Hopkins 25,247 10.11% 1.33%
Rains 4,839 5.60% 1.45%

Total: 41,818 8.59% 1.15%



Appendix I

COURT COUNTY POPULATION BLACK% HISP.% R/E
9 Montgomery 128,487 4.77% 3.22% W

Polk 24,407 15.76% 3.74%
San Jacinto 11,434 21.01% 1.16%
Waller 19,796 42.05% 5.47%

Total: 184,124 11.24% 3.40%

2nd 9 Montgomery 128,487 4.77% 3.22% W
Polk 24,407 15.78% 3.74%
San Jacinto 11,434 21.01% 1.16%
Trinity 9,450 20.20% 0.92%

Total: 173,778 8.22% 3.03%

23 Brazoria 169,587 7.75% 13.26% W
Matagorda 37,826 14.67% 20.90%
Wharton 40,242 16.60% 21.76%
Total: 247,655 10.25% 15.81%

27 Bell 157,889 16.36% 11.02% w
Lampasas 12,005 1.58% 10.70%

Total: 169,894 15.32% 11.00%

31 Gray 26,386 3.90% 4.13% w
Hemphill 5,304 - 10.28%
Lipscomb 3,766 - 7.94%
Roberts 1,187 - 2.70%
Wheeler 7,137 2.58% 4.06%

Total: 43,780 2.77% 5.15%

35 Brown 33,057 4.72% 7.92% w
Mills 4,477 0.16% 6.75%
Total: 37,534 4.17% 7.78%

42 Callahan 10,992 0.07% 3.23% w
Coleman 10,439 3.82% 8.83%
Taylor 110,932 6.11% 11.79%

Total: 132,363 5.43% 10.85%

1-2



Appendix I

COURT COUNTY POPULATION BLACK% HISP.% R/E

47 Armstrong 1,994 0.30% 2.76% W
Potter 98,637 8.13% 11.71%
Randall 75,062 0.74% 4.64%

Total: 175,693 4.88% 8.59%

49 Webb 99,258 0.06% 91.50% H
Zapata 6,628 - 76.07%

Total: 105,886 0.05% 90.53%

51 Coke 3,196 12.67% W
Irion 1,385 - 18.54%
Schleicher 2,820 1.38% 25.99%
Sterling 1,206 0.33% 23.13%
Tom Green 84,784 4.02% 21.14%

Total: 93,391 3.7% 20.98%

62 Delta 4,839 8.12% 0.27% w
Franklin 6,893 5.51% 0.90%
Hopkins 25,247 10.11% 1.33%
Lamar 42,156 14.89% 0.64%

Total: 79,135 12.13% 0.86%

72 Crosby 8,859 5.37% 37.04% w
Lubbock 211,651 7.25% 19.53%

Total: 220,510 7.16% 20.23%

76 Camp 9,275 25.54% 1.07% w
Morris 14,629 21.80% 1.76%
Titus 21,442 13.90% 2.86%

Total: 45,346 18.83% 2.14%

77 Freestone 14,830 21.56% 1.63% w
Limestone 20,224 23.23% 3.18%

Total: 35,054 22.52% 2.52%

1 -3



Appendix I

COURT COUNTY POPULATION BLACK% HISP.% R/E

83 Brewster 7,573 0.41% 43.07% H
Jeff Davis 1,647 - 47.18%
Pecos 14,618 0.47% 48.56%
Presidio 5,188 0.04% 76.89%
Reagan 4,135 3.94% 31.22%
Upton 4,619 2.34% 28.04%

Total: 37,780 0.99% 46.88%

84 Hansford 6,209 11.63% W
Hutchinson 26,304 2.94% 4.54%
Ochiltree 9,588 - 9.36%

Total: 42,101 1.84% 6.68%

87 Anderson 38,381 21.34% 4.82% W
Freestone 14,830 21.56% 1.63%
Leon 9,594 19.88% 2.57%
Limestone 20,224 23.23% 3.18%

Total: 83,029 21.59% 3.57%

88 Hardin 40,721 10.05% 1.38% w
Tyler 16,223 12.93% 0.65%

Total: 56,944 10.87% 1.17%

102 Bowie 75,301 21.98% 1.17% w
Red River 16,101 20.24% 1.94%

Total: 91,402 21.67% 1.30%

105 Kenedy 543 82.50% H
Kleberg 33,358 3.99% 52.13%
Nueces 268,215 4.56% 48.95%

Total: 302,116 4.49% 49.36%

112 Crockett 4,608 0.28% 44.55% w
Pecos 14,618 0.47% 48.56%
Reagan 4,135 3.94% 31.22%
Sutton 5,130 - 40.37%
Upton 4,619 2.34% 28.04%

Total: 33,110 1.07% 35.45%

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Appendix I

COURT COUNTY POPULATION BLACK% HISP.% R/E

114 Smith 128,366 21.90% 3.18% W
Wood 24,697 10.37% 1.12%

Total: 153,063 20.04% 2.85%

115 Marion 10,360 34.72% 0.78% W
Upshur 28,595 15.42% 0.61%

Total: 38,955 20.55% 0.65%

119 Concho 2,915 27.65% W
Runnels 11,872 1.80% 19.36%
Tom Green 84,784 4.02% 21.14%

Total: 99,571 3.64% 21.12%

123 Panola 20,724 19.90% 1.23% W
Shelby 23,084 21.24% 0.78%

Total: 43,808 20.61% 0.99%

155 Austin 17,726 14.55% 5.47% W
Fayette 18,832 8.96% 4.98%
Waller 19,796 42.05% 5.47%

Total: 56,354 22.34% 5.31%

198 Concho 2,915 27.65% w
Kerr 28,780 2.57% 13.57%
Kimble 4,063 - 17.40%
McCulloch 8,735 2.46% 18.97%
Menard 2,346 0.34% 28.64%

Total: 46,839 2.06% 16.54%

216 Bandera 7,084 0.13% 12.18% w
Gillespie 13,532 0.25% 10.04%
Kendall 10,635 0.12% 13.22%
Kerr 28,780 2.57% 13.57%

Total: 60,031 1.32% 12.55%



Appendix I

CO U R T C O U N T Y  P O P U LA TIO N B LAC K % HISP.% R/E

253 Chambers 18,538 14.34% 3.55% W
Liberty 47,088 14.37% 1.75%

Total: 65,626 14.36% 2.26%

258 Polk 24,407 15.76% 3.74 % W
San Jacinto 11,434 21.01% 1.16%
Trinity 9,450 20.20% 0.92%

Total: 45,291 13.80% 2.31%

273 Sabine 8,702 15.79% 1.78% W
San Augustine 8,785 29.61% 1.47%
Shelby 23,084 21.24% 0.78%

Total: 40,571 21.88% 1.14%

274 Caldwell 23,637 16.36% 32.80% W
Comal 36,446 0.98% 23.93%
Guadalupe 46,708 6.62% 25.4%
Hays 40,594 2.99% 30.52%

Total: 147,385 5.79% 27.63%

276 Camp 9,275 25.54% 1.07% W
Marion 10,360 34.72% 0.78%
Morris 14,629 21.80% 1.76%
Titus 21,442 13.90% 2.86%

Total: 55,706 21.78% 1.89%

294 Van Zandt 31,426 4.09% 1.81% W
Wood 24,697 10.37% 1.12%

Total: 56,123 6.85% 1.51%

336 Fannin 24,285 7.49% 1.32% w
Grayson 89,796 6.97% 1.32%
Total: 114,081 7.08% 1.32%

349 Anderson 38,381 21.34% 4.82% w
Houston 22,299 32.35% 3.70%
Total: 60,680 25.38% 4.41%

1-6



Appendix I

COURT COUNTY POPULATION BLACK% HISP.% R/E

354 Hunt
Rains
Rockwall

55,248
4,839

14,528

12.72%
5.60%
5.15%

2.44%
1.45%
3.28%

W

Total: 74,615 10.78% 2.54%

369 Anderson
Cherokee

38,381
38,127

21.34%
18.47%

4.82%
3.38%

W

Total: 76,508 19.91% 4.10%

Count: 44 District Courts

There are presently 3 Hispanics and 0 Blacks sitting as judges in these 
district courts.

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