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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September 27, 1990

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Brief Collection, LDF Court Filings. League of United Latin American Citizens (LULAC), Council #4434 v. Mattox Supplemental Brief on Rehearing En Banc of Plaintiff-Intervenor-Appellees, 1990. c5346ec8-ba9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/5050b3bd-1a26-4f5f-8e75-741010302339/league-of-united-latin-american-citizens-lulac-council-4434-v-mattox-supplemental-brief-on-rehearing-en-banc-of-plaintiff-intervenor-appellees. Accessed April 19, 2025.
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Naacp llgal defense fund library 99 HUDSON STREET NEW YORK, N. Y. 10014 library n f w ™ D$ON STREETNEW YORK, N. Y. 1001« > 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). - 4 - 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% 1 - 4 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. 1 - 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