Reply Brief for Defendant-Appellant Bayoud

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IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
  

NO. 90-8014 
  

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, 
COUNCIL NO. 4434, ET AL. 

Plaintiffs-Appellees 

v. 

WILLIAM P. CLEMENTS, ET AL. 

Defendants-Appellants 

GEORGE S. BAYOUD, JR. 

Defendant-Appellant 
  

On Appeal From The United States District Court 
For The Western District Of Texas 

Midland Division 
Honorable Lucius D. Bunton, District Judge 

  

REPLY BRIEF FOR DEFENDANT-APPELLANT BAYOUD 

  

John L. Hill, Jr. 
Texas Bar No. 00000027 
Andy Taylor 
Texas Bar No. 19727600 
LIDDELL, SAPP, ZIVLEY, HILL & LaBOON 
3300 Texas Commerce Tower 
Houston, Texas 77002 
(713) 226-1200 

INDEPENDENT OUTSIDE COUNSEL FOR 
DEFENDANT-APPELLANT GEORGE SS. 
BAYOUD, JR., SECRETARY OF STATE OF 
THE STATE OF TEXAS 

 



   

| 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

NO. 90-8014 

  

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, 
COUNCIL NO. 4434, ET AL. 

Plaintiffs-Appellees 

V. 

WILLIAM P. CLEMENTS, ET AL. 

Defendants-Appellants 

GEORGE S. BAYOUD, JR. 

Defendant-Appellant 

  

On Appeal From The United States District Court 
For The Western District Of Texas 

Midland Division 
Honorable Lucius D. Bunton, District Judge 

  

REPLY BRIEF FOR DEFENDANT-APPELLANT BAYOUD 

  

John L. Hill, Jr. 
Texas Bar No. 00000027 
Andy Taylor 
Texas Bar No. 19727600 
LIDDELL, SAPP, ZIVLEY, HILL & LaBOON 
3300 Texas Commerce Tower 
Houston, Texas 77002 
(713) 226-1200 

INDEPENDENT OUTSIDE COUNSEL FOR 
DEFENDANT-APPELLANT GEORGE S. 
BAYOUD, JR., SECRETARY OF STATE OF 
THE STATE OF TEXAS 

 



TABLE OF CONTENTS 
  

APPELLEES' CITATION OF AUTHORITY SHOULD BE REJECTED 
BY THIS COURT 

A. Chisom v. Edwards Was Wrongly Decided. 

B. The Remainin 1 Appellees 

Are NOt PerSUHaSIVe. 4 vic vio sie csi oie ss s50 0 vsie® one rininiaisins 

CONCLUSION 

CERTIFICATE OF SERVICE 

 



    
INDEX OF AUTHORITIES 

CASES 

Buchanan v. Rhodes 
249 F. Supp. 860 (N.D. Ohio 1966), 
appeal dism'd, 38S TV.S. 3(1068) . ..c + oc vice sais savin rier rye 8 

Caminetti v. United States 

282 I.S. 470 (1017) . oe oss viis ie sin vi ws Sr ania hates ee wie 3 

Canon v. University of Chicago 
441 11.S, 007 (1077) i. oot rinie vee iain a ae Ea ee 9 

Chisom v. Edwards 

839 F.2d 1056 (5th Cir. 1988), 
cert. denied sub nom., Roemer v. Chisom, 

U.S. , 109 S. Ct. 390, 102 L. Ed.2d 
cyl LOVEE TU Se Sr INE RG SRE ge YA 2-7, 9 

Clark v. Edwards 

725 F.Supp... 285 (M.D. 1a. 1988) ovo oss ve es a nidniss dine vin snails 9 

Dillard v. Crenshaw County, Ala. 
S31 E24 2401 Hh Cir. 1987) one vv se sin ins tists aine sna anes 2, 4 

Director, OWCP v. Perini North River Associates 
A450 LS, 207 (1083) tc ss te ie en vires irae baa a a ee eae 9 

Gilbert v. U.S. 

BIO U.S. 650 (1002) evs ie ve eee re va reas ee ae aa 8 

Goodyear Atomic Corp. v. Miller 
486 U.S. 174, 108 S. Ct. 1704, 100 
L. EQ2A 158 (1088). . os oie esis es fs she a inin inn ae nie 5 ws ae wie a 9 

Haith v. Martin 
618 F. Supp. 410 (E.D.N.C. 1985), 
affd without.op., 477 U.S." 901 (1986) . . . . «vv + + then inn is vidniniens 2, 10 

Hatten v. Rains 
854 F.2d 687 (5th Cir. 1988), cert. denied, 
aus. ,100 8. Ct. 3156, 104 L. Ed.2d 
DET cu Be OE SS SG es SEE SRE CIE EG 8, 9 

iii 

 



    
LN.S. v. Phinpathya 

464 U.S. 183 (OBA) tn vis ov os 0s sh le ie Ste a ae ae a 8 

Kirksey v. Allain 
635 F. Supp. 347 (SD. Miss. 1986) ‘« . . «vv sv vin vu nnn ns vanvinie ness 2,10 

Mallory v. Eyrich 
BOF. 20.27540th Cir, 1088). . . . +c « isie vos ciao inn an nininsimis s 2, 6-9 

Martin v. Allain 

658 F. Supp. 1183 (SD. Miss. 1987)  c vivv ne vie vvint nndivns sense 2, 8 

Morial v. Judicial Comm'n of State of La. 
565 F.2d 295 (1977), cert. denied, 349 
F.Supp. S69 (ND. Ohio 1972) ... ... «sco viv vena visips sins sinnainnn ss 8 

N.L.R.B. v. Amax Coal Co., A Division of Amax, Inc. 
453 0).S. 322 (T081) . .ia eins sire a aa ve a 4 

New York State Ass'n of Trial Lawyers v. Rockefeller 
207 F. Supp- 48S DN.Y. 1967) . i. vou dis vi iva sive vs rnn ne vinns 8 

Rodriguez v. U.S. 
480 U.S. 522, 107 S. Ct. 1391, 
04 L. BA.2A:533 (1087). +o ivi cvs vis Preinins sin anion oe 0 nn evs 9, 10 

Russello v. United States 
dA US 10 (1083) lh sv aisles vin tots mms us wis avin a a ai ali 4, 10 

Sheet Metal Workers' Intern. Assn v. Lynn 
102 U.S. 700, 109 S. Ct. 639 102 L. 
BEd.2d 700 (1089) viii.» +o vic vniniocs cv vin vant sens nisininnn sas 0 rie 3 

Southern Christian Leadership Conf. v. Siegelman 
714 F. Supp. 511 (M.D. Ala. 1989) .. . ovis svc vio csv ninvnnnevns 2.9 

Stokes v. Fortson 
234 F, Supp. STSAND, Ga. 1968) .... i: codons vavrnmsaine es oi 8 

Transamerica Mortg. Advisors, Inc. (TAMA) v. Lewis 
444 US, 11 (1079) i... coin aioe vn vie ® enn aise aan ae 4, 6 

United States v. Turley 
B52 1).S. A407 (1057) oc os tes sinine ire nr sinisisin adaintieininiv vane ra 8 

Voter Information Project v. City of Baton Rouge 
BIZ Fd 208 (Sth Cir. 1980)... io vv vc os sinie svi vita vu sivinnn sins ss 5 6 

iv 

 



    
Wells v. Edwards 

347 F. Supp. 453 (M.D. La. 1972), 
Fd, 400 11.8. 100501073) ses viva s vinieniviaaias wna enna 58 

Williams v. State Bd. of Elections 
696 F.Supp. 1563 (S.D. Miss. 1987) . . . sia sven sins nineavans va 2.9 

MISCEL 

2A C. Sands, Sutherland's Statutory Constructions 
$460] at 73 (4h rev. ed." 1984) . . ... . oh c ie i Ld rns aes 3 

2A C. Sands, Sutherland's Statutory Constructions 
$46.04 at 86 (Ah TeV. 0. 1984)". cos tvs ssi diss sides vans haan a airy 8 

2A C. Sands, Sutherland's Statutory Constructions 
$47.28 at 23 (4th rev. @d. 1084), \ «oie sss vie aden viens ainninins sa ninnien 4 

BrLack's 1Aw DicTioNARY 1170, 754 (Sth ed. 1079) . ..... ie eo vay vith s ous 8 

S. Rep. No. 97-417, 97th Cong. 2d Sess. 198 
(1982), reprinted in U.S. Code Cong. & Admin. 
News 368 (1082) vi ese Tits tne ieee A A a nen a 4 

 



    
IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
  

NO. 90-8014 
  

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, 
COUNCIL NO. 4434, ET AL. 

Plaintiffs-Appellees 

V. 

WILLIAM P. CLEMENTS, ET AL. 

Defendants-Appellants 

GEORGE S. BAYOUD, JR. 

Defendant-Appellant 
  

On Appeal From The United States District Court 
For The Western District Of Texas 

Midland Division 
Honorable Lucius D. Bunton, District Judge 
  

REPLY BRIEF FOR DEFENDANT-APPELLANT BAYOUD 
  

TO THE HONORABLE COURT OF APPEALS: 

Defendant-Appellant Bayoud considers it significant that Appellees have chosen 

to completely ignore his contention that the United States Congress never intended for 

any version of Section 2 of the Voting Rights Act to apply to the judicial branch of 

government. Despite the fact that the answer to this question lies solely in a judicial 

determination of Congressional intent, Appellees make no mention of the 1965 or 1982 

statutory texts of Section 2 or the legislative histories accompanying the Act's passage 

and subsequent amendment. Such a strategy is understandable in light of the undeniable 

absence of affirmative evidence that Congress intended for Section 2(b) to reach the 

election of independent single-member county-wide district judges. 

 



APPELLEES' CITATION OF AUTHORITY SHOULD BE REJECTED BY 
THIS COURT. 

Appellees’ entire argument is limited to a string-cite of cases, including a Panel 

decision of this Court, Chisom v. Edwards, 839 F.2d 1056 (5th Cir. 1988), cert. denied sub 

nom., Roemer v. Chisom, U.S. _, 109 S. Ct. 390, 102 L. Ed.2d 379 (1988),! and 

several other decisions by sister courts. Mallory v. Eyrich, 839 F.2d 275 (6th Cir. 1988); 

Southern Christian Leadership Conf. v. Siegelman, 714 F. Supp. 511 (M.D. Ala. 1989); 

Williams v. State Bd. of Elections, 696 F. Supp. 1563 (S.D. Miss. 1987); Dillard v. 

Crenshaw County, Ala., 831 F.2d 246 (11th Cir. 1987); Martin v. Allain, 658 F. Supp. 1183 

(S.D. Miss. 1987); Kirksey v. Allain, 635 F. Supp. 347 (S.D. Miss. 1986); Haith v. Martin, 

618 F. Supp. 410 (E.D.N.C. 1985), affd without op., 477 U.S. 901 (1986). As will be 

demonstrated below, none of these decisions withstand scrutiny when analyzed under the 

well-settled rules of statutory construction for determining Congressional intent behind 

a legislative enactment. 

A. Chisom v. Edwards Was Wrongly Decided. 

Defendant-Appellant Bayoud has already devoted a portion of his Defendant- 

Appellant's Brief to a discussion of why Chisom v. Edwards was wrongly decided. 

Without unnecessary repetition, the shortcomings of the Chisom Panel's analysis are as 

follows: First, the Panel relies upon the "plain language" of the Act to conclude that 

  

! Betting that this Court will find itself bound by the prior Panel decision in Chisom 
v. Edwards, Appellees have obviously chosen to avoid discussion of Bayoud's contention 
that Chisom v. Edwards was wrongly decided. Assuming that the issue presented in the 
present context of this appeal is the same as that presented to the Panel in Chisom v. 
Edwards, which Bayoud specifically denies, the inquiry does not end there. The doctrine 
of interpanel accord is not an inflexible rule: "The mere fact that a prior opinion exists 
is not sufficient in itself to call the doctrine of stare decisis into play: otherwise one 
rogue opinion could deprive the law of the accumulated expertise that stare decisis strives 
to safeguard." North Carolina Utilities Commission v. F.C.C., 552 F.2d 1036, 1045 (4th 
Cir. 1977), cert. denied, 434 U.S. 874 (1977).  



    
Section 2(b) applies to the judiciary. Chisom, 839 F.2d at 1059-60. In support of that 

proposition, the Panel notes that Section 14(c)(1) of the Act includes within its definition 

of "vote" or "voting" certain acts with respect to "candidates for public office," and 

accordingly declares that judges are covered under the Act because they are candidates 

for public office. Id. at 1060. This conclusion is premised on an inaccurate application 

of the "plain meaning" rule of statutory construction and a failure to consider the 

interrelation between Section 14(c)(1) and Section 2(b) of the Act. The "plain meaning" 

rule applies when the statutory language is plain and unambiguous and admits of no 

more than one meaning. Caminetti v. United States, 242 U.S. 470, 485 (1917); 2A C. 

Sands, Sutherland's Statutory Constructions § 46.01 at 73 (4th rev. ed. 1984). A 

comparison of Section 14(c)(1) and 2(b) cannot possibly lead to the unambiguous 

conclusion that Section 2(b) covers judicial elections. Section 14(c)(1) is merely a 

definitional section of the Act which defines "vote" and "voting" in the context of all 

action necessary to make a vote effective in any election. Section 2(a), however, creates 

a private cause of action. And while it is no doubt true that Section 2(a) incorporates 

the term "vote" and "voting," Section 2(b) specifically sets forth the criteria by which a 

violation of 2(a) may be shown. Unlike Section 14(c)(1), Section 2(b) specifically 

incorporates the term "representatives." As discussed on pages 20-22 of Bayoud's 

Defendant-Appellant's Brief, this phrase has a well-defined meaning. "Where Congress 

uses terms that have accumulated settled meaning under either equity or the common 

law, a court must infer, unless the statute otherwise dictates, that Congress means to 

incorporate the established meaning of these terms." N.L.R.B. v. Amax Coal Co., A 

Division of Amax, Inc., 453 U.S. 322, 329 (1981); 2A C. Sands, Sutherland's Statutory 

Constructions § 47.28 at 223 (4th rev. ed. 1984). Since Congress included this term in 

Section 2(b) but not in Section 14(c)(1), it must be presumed that Congress deliberately 

and purposely intended for these two Sections to be interpreted differently. Russello v. 

United States, 464 U.S. 16, 23 (1983). Under well-settled principles of statutory 

 



    
construction, specific provisions override those which are general in scope. Thus, 

Section 2(b)'s non-applicability to the judicial branch overrides and specifically limits 

Section 14(c)(1)'s reference to "candidates for public office." 

Second, the Chisom Panel's reliance on Dillard v. Crenshaw County, Ala., 831 F.2d 

246 (11th Cir. 1987), is also subject to substantial doubt. Chisom, 839 F.2d at 1060. 

Dillard makes the statement that "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." Id. at 250. This assertion cannot withstand scrutiny 

in the face of proper application of the rules of statutory construction and diligent 

legislative history research. A court must first begin with the language of the statute 

itself. Transamerica Mortg. Advisors, Inc. (TAMA) v. Lewis, 444 U.S. 11, 16 (1979). The 

language in Section 2 which conditions applicability is the phrase "representatives" 

inserted by Congress into Section 2(b) in 1982. And while "representatives" is broad 

enough to include the legislative and executive branches of government, it does not 

include the judicial branch of government within its ambit of coverage. The legislative 

history which further supports this distinction has been previously set forth in Bayoud's 

Defendant-Appellant's Brief at 25-26. 

The Chisom Panel's third premise is that Wells v. Edwards, 347 F. Supp. 453 (M.D. 

La. 1972), affd, 409 U.S. 1095 (1973) and Voter Information Project v. City of Baton 

Rouge, 612 F.2d 208 (Sth Cir. 1980) are not relevant to a determination of whether 

Section 2(b) of the Act applies to the judiciary. Chisom, 839 F.2d at 1060-61. Wells and 

Voter Information essentially stand for the proposition that the one-man, one-vote 

principle does not extend to the judicial branch of government. The Chisom Panel 

  

2 The Senate Report itself recognizes that Section 2(b) specifically overrides Section 
2(a): "The establishment of a violation--proving a discriminatory result--is thus contingent 
upon satisfaction of the provisions of Subsection (b)." S. Rep. No. 97-417, 97th Cong. 
2d Sess. 198 (1982), reprinted in U.S. Code Cong. & Admin. News 368 (1982). 

 



    
recognized this fact, but then distinguished those cases on the basis that they dealt solely 

with complaints seeking reapportionment of judicial districts, and did not involve claims 

of discrimination. Id. at 1061. 

Irrespective of whether the Chisom Panel was correct in distinguishing Wells and 

Voter Information in that regard, it fell into error when it concluded that neither case 

was relevant to the question of applicability of Section 2(b) of the Act. The relevance 

of these cases is clear. Both opinions clearly treat the judicial branch of government as 

being outside the commonly defined term "representatives." Thus, these cases are 

important because Congress is presumed to know that the courts do not consider the 

judiciary to be a part of the common understanding of the phrase "representatives." 

The Chisom Panel also fell into error when it stated that "the reasoning utilized 

by the Court in Voter Information to extend the protection from racial discrimination 

provided by the fourteenth and fifteenth amendments to the judiciary compels a 

conclusion by this Court that the protection from racial discrimination provided by 

Section 2 likewise extends to state judicial elections." Chisom, 839 F.2d at 1061. No 

such conclusion is compelled. There is no doubt that a state election scheme can be 

challenged as discriminatory under the United States Constitution. But that in no way 

automatically means that the Voting Rights Act covers judicial elections as well. The 

latter proposition can only be true if Congress intended for Section 2(b) of the Act to 

cover the judiciary--a question of statutory interpretation only. As the Sixth Circuit has 

recognized, "the one-man, one-vote cases address an equal protection problem directly 

under the Fourteenth Amendment. The plaintiffs’ section 2 claim involves the 

construction of an Act of Congress, a different task from construing and applying a 

provision of the Constitution." Mallory v. Eyrich, 839 F.2d 275, 278 (6th Cir. 1988). 

"[W]hat must ultimately be determined is whether Congress intended to create the 

private remedy asserted." Transamerica Mortg. Advisors, Inc. (TAMA) v. Lewis, 444 U.S. 

11, 15-16 (1979). 

 



   

The core fallacy in the Chisom Panel's reasoning can be illustrated in one 

paragraph of its opinion: 

It is difficult, if not impossible, for this Court to conceive of 
Congress, in an express attempt to expand the coverage of 
the Voting Rights Act, to have in fact amended the Act in a 
manner affording minorities less protection from racial 
discrimination than that provided by the Constitution. We 
conclude today that section 2, as amended in 1982, provides 
protection commensurate with the fourteenth and fifteenth 
amendments; therefore, in accordance with this Court's 
decision in Voter Information, section 2 necessarily embraces 
judicial elections within its scope. Any other construction of 
section 2 would be wholly inconsistent with the plain language 
of the Act and the express purpose which Congress sought to 
attain in amending section 2; that is, to expand the protection 
of the Act. 

Chisom, 839 F.2d at 1061. The Panel's reluctance to believe that Congress could have 

intended, in an express attempt to expand Section 2 of the Act, to eliminate that 

Section's applicability to judicial elections, necessarily rests upon the unfounded 

assumption that the original 1965 version of Section 2 encompassed judicial elections. 

As demonstrated on pages 10-16 of Bayoud's Defendant-Appellant's Brief, no such 

conclusion is warranted. Congress' purpose in expanding the protection of the Act could 

not possibly be frustrated by this Court's holding that Section 2(b) of the Act does not 

cover judicial elections, for the simple reason that the original 1965 version of Section 

2 did not cover the judicial branch of government. Section 2(b) does not provide 

protection commensurate with the fourteenth and fifteenth amendments with respect to 

challenging judicial elections because the United States Congress never intended for 

either version of Section 2 to apply to the judiciary. Had Congress intended otherwise, 

one would justifiably expect some discussion of the subject in the statute or the 

legislative history. Sheet Metal Workers' Intern. Ass'n v. Lynn, 102 U.S. 700, _ , 109 S. 

Ct. 639, 645, 102 L. Ed.2d 700, 710-11 (1989). 

 



   

B. The Remainin i Appell Not Persuasive. 

In Mallory v. Eyrich, 839 F.2d 275 (6th Cir. 1988), the Sixth Circuit holds that 

Section 2(b) of the Voting Rights Act applies to the judiciary. This decision offers no 

justifications for its conclusion that are any different than those articulated in Chisom v. 

Edwards, 839 F.2d 1056 (5th Cir. 1988), cert. denied sub nom., Roemer v. Chisom, 

US. _, 109 S. Ct. 390, 102 L. Ed.2d 379 (1988). For that reason, Defendant- 

Appellant Bayoud merely incorporates pages 27-31 of his Defendant-Appellant's Brief 

and pages 3-7 of this Reply Brief to articulate why Mallory v. Eyrich was wrongly 

decided. 

In Martin v. Allain, 658 F. Supp. 1183, 1200 (S.D. Miss. 1987), the Court makes 

the bald assertion that the term "representatives" in Section 2(b) of the Voting Rights 

Act includes judges. This holding is devoid of any citation to legal precedent or factual 

support for this proposition, and is clearly unwarranted under settled rules of statutory 

construction. Where, as here, Congress selects a phrase of common understanding, it is 

fair to assume that the legislative purpose is expressed by the ordinary and common 

sense meaning of the words used. LN.S. v. Phinpathya, 464 U.S. 183, 189 (1984); Gilbert 

v. U.S., 370 U.S. 650, 655 (1962); United States v. Turley, 352 U.S. 407, 411 (1957); 2A 

C. Sands, Sutherland's Statutory Constructions § 46.04 at 86 (4th rev. ed. 1984). A 

"representative" is a person chosen by the people to represent their several interests, 

while a "judge" is an officer who presides in a court and is charged with the control of 

the proceedings and the decisions of questions of law or discretion. Brack's Law 

Dictionary 1170, 754 (5th ed. 1979). While a "representative" encompasses the legislative 

and executive branches of government, the judicial branch is not a component of that 

term. Wells v. Edwards, 347 F. Supp. 453, 455 (M.D. La. 1972), affd, 409 U.S. 1095 

(1973); Hatten v. Rains, 854 F.2d 687, 696 (Sth Cir. 1988), cert. denied, U.S. _ , 109 

S. Ct. 3156, 104 L. Ed.2d 1019 (1989); Morial v. Judicial Comm'n of State of La., 565 

F.2d 295, 305 (1977), cert. denied, 349 F. Supp. 569, S71 (N.D. Ohio 1972); New York 

 



   

State Assn of Trial Lawyers v. Rockefeller, 267 F. Supp. 148, 153 (S.D.N.Y. 1967); 

Buchanan v. Rhodes, 249 F. Supp. 860, 865 (N.D. Ohio 1966), appeal dismd, 385 U.S. 

3 (1966); Stokes v. Fortson, 234 F. Supp. 575, 577 (N.D. Ga. 1964). With the exception 

of Hatten v. Rains, the above-cited cases were decided before Congress inserted the term 

"representative" in Section 2(b) of the Voting Rights Act in 1982. Congress is charged 

with knowledge of the existing law. Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 

108 S. Ct. 1704, 1711, 100 L. Ed.2d 158, 171 (1988); Director, OWCP v. Perini North 

River Associates, 459 U.S. 297, 319-20 (1983); Canon v. University of Chicago, 441 U.S. 

667, 696-97 (1977). Indeed, Congress is presumed to act with full awareness of well- 

established judicial interpretations of such a term of art. Rodriguez v. U.S., 480 U.S. 

522, , 107 S. Ct. 1391, 1393, 94 L. Ed.2d 533, 537 (1987). 

Nor does Southern Christian Leadership Conf. v. Siegelman, 714 F. Supp. 511, 514 

(M.D. Ala. 1989), contribute anything to the question of whether Congress intended for 

Section 2(b) of the Voting Rights Act to cover judicial elections. Noting that this issue 

was one of first impression in the Eleventh Circuit, the Court merely makes the naked 

conclusion that it agrees with the reasoning and holding of the Fifth and Sixth Circuits 

in Chisom v. Edwards, 839 F.2d 1056 (5th Cir. 1988), cert. denied sub nom., Roemer v. 

Chisom, US. _, 109 S. Ct. 390, 102 L. Ed.2d 379 (1988) and Mallory v. Eyrich, 839 

F.2d 275 (6th Cir. 1988). 

Williams v. State Bd. of Elections, 696 F. Supp. 1563, 1565 (N.D. Ill. 1988), sheds 

no independent light on the question of coverage under Section 2(b) of the Voting 

Rights Act. Not only does the Court simply note, without offering any independent 

reasoning on the issue, that other courts have held that Section 2(b) of the Act applies 

  

3 Clark v. Edwards, 725 F. Supp. 285 (M.D. La. 1988), is similarly unimpressive in 
its conclusion that Section 2(b) applies to an elected judiciary. 

 



    
to the judicial branch of government, the Defendants in that case did not even contest 

the Plaintiffs’ claim that Section 2(b) applies to judicial elections. Id. at 1565-66. 

Haith v. Martin, 618 F. Supp. 410, 413 (E.D.N.C. 1985), affd without opinion, 477 

U.S. 901 (1986), is no authority for the proposition that Section 2(b) of the Voting 

Rights Act covers judicial elections. The question presented in Haith was whether 

Section 5 of the Voting Rights Act applies to the election of judges. Id. at 412. Section 

5 of the Act is broadly defined, and does not specifically restrict its application to 

election systems pertaining to representatives, as does the 1982 amended version of 

Section 2. "Where Congress includes particular language in one section of a statute but 

omits it in another section of the same Act, it is generally presumed that Congress acts 

intentionally and purposely in the disparate inclusion or exclusion." Rodriguez v. U.S., 

480 U.S. 522, , 107 S. Ct. 1391, 1393, 94 L. Ed.2d 533, 537 (1987)(quoting Russello 

v. United States, 464 U.S. 16, 23 (1983)). Indeed, one case upon which the Plaintiffs- 

Appellees rely concludes that Section S applies to judicial elections for the very reason 

that it does not contain a limitation upon its applicability as does Section 2(b). Kirksey 

v. Allain, 635 F. Supp. 347, 349 (S.D. Miss. 1986). 

NCLUSION 

For the foregoing reasons, Defendant-Appellant Bayoud respectfully requests this 

Court to reverse the judgment of the district court and render judgment on behalf of the 

Appellants in this case, and for any other and further relief to which he may show 

himself justly entitled. 

Respectfully submitted, 

By: And Tay er 
John L. Hill, Jr. 
Texas Bar No. 0000027 
Andy Taylor 
Texas Bar No. 19727600 
3300 Texas Commerce Tower 
Houston, Texas 77002 
(713) 226-1200 

INDEPENDENT OUTSIDE COUNSEL FOR 
GEORGE S. BAYOUD, JR., SECRETARY OF 
STATE OF THE STATE OF TEXAS 

  

9 

 



    
CERTIFICATE OF SERVICE 

I hereby certify that two copies of the foregoing Reply Brief for Defendant- 
Appsitam Bayoud were served by overnight Federal oe on this Sth day of March, 
1990: 

fendants- llan 
Jim Mattox 
Mary F. Keller 
Renea Hicks 
Javier Guajardo 
Attorney General's Office 
P. O. Box 12548 
Austin, Texas 78711 

ae LULAC 
William L. Garrett 
Brenda Hull Thompson 
8300 Douglas, Suite 800 
Dallas, Texas 75225 

Rolando L. Rios 
Attorney at Law 
201 N. St. Mary's, Suite 521 
San Antonio, Texas 78205 

Defendant-Intervenor Judge Wood 
J. Eugene Clements 
Evelyn V. Keyes 
Porter A. Clements 
700 Louisiana, Suite 3500 
Houston, Texas 77002-2730 

Darrell Smith 
Attorney at Law 
10999 Interstate Highway 10 
Suite 905 
San Antonio, Texas 78230 

Michael J. Wood 
Attorney at Law 
440 Louisiana, Suite 200 
Houston, Texas 77002 

Defendant-Intervenor Judge Entz 
Robert H. Mow, Jr. 
David Godbey 
Hughes & Luce 
2800 Momentum Place 
1717 Main Street 
Dallas, Texas 75201 

10 

 



    
Presiding Judges 

R. James George 
John M. Harmon 
Margaret H. Taylor 
Graves, Dougherty, Hearon & Moody 
2300 NCNB Tower 
515 Congress Avenue 
P. O. Box 98 
Austin, Texas 78767 

Midland County and District Judges 
Mark H. Dettman 
County Attorney 
P. O. Box 2559 
Midland, Texas 79702 

Travis Lent and District Judges 
Ken Oden 
Travis County Attorney 
P. O. Box 1748 
Austin, Texas 78767 

Bexar nty District Judges 
Seagal V. Wheatley 
Donald R. Philbin, Jr. 
Oppenheimes, Rosenberg, Kelleher & Wheatley, Inc. 
711 Navarro, 6th Floor 
San Antonio, Texas 78205 

Sutton Copy District Judges 
om ugg 

Assistant District Attorney 
Jefferson County Courthouse 
Beaumont, Texas 77701 

Plaintiffs-Intervenors Joan Winn White, Jesse Oliver and Fred Tinsley 
Edward B. Cloutman, III 
Mullinax, Wells, Baab & Cloutman, P.C. 
3301 Elm 
Dallas, Texas 75226-9222 

E. Brice Cunningham 
Attorney at Law 
777 S.R.L. Thornton Freeway, Suite 121 
Dallas, Texas 75203 

Plaintiffs-Intervenors Houston Lawyers Association, Francis Williams and Rev. William 
Lawson 

Julius Levonne Chambers 
Sherrilyn A. Ifill 
NAACP Legal Defense & Educational Fund, Inc. 
99 Hudson Street, 16th Floor 
New York, New York 10013 

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Gabrielle K. McDonald 
Matthews & Branscomb 
301 Congress Avenue, Suite 2050 
Austin, Texas 78701 

Plaintiff-Intervenor Texas islative Black 
Gabrielle K. McDonald 
Matthews & Branscomb 
301 Congress Avenue, Suite 2050 
Austin, Texas 78701 

fndy Tay 
Andy Taylor : 
  

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