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IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

NO. 90-8014

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, ET AL.

Plaintiffs-Appellees
VS.

JIM MATTOX, ET AL.

Defendants-Appellants

ON REMAND FROM THE 
UNITED STATES SUPREME COURT

BRIEF OF
PLAINTIFFS-APPELLEES

ROLANDO L. RIOS 
ATTORNEY AT LAW 
201 N. St. Mary's 
Suite 521 
San Antonio, TX 
78205
512/ 222-2102

WILLIAM L. GARRETT 
ATTORNEY AT LAW 
8300 Douglas Ave. 
Suite 800 
Dallas, TX 
75225
214/ 369-1952

SUSAN FINKELSTEIN 
ATTORNEY AT LAW 
405 N. St. Mary's 
Suite 910 
San Antonio, TX 
78205
512/ 271-3807

ATTORNEYS FOR PLAINTIFFS-APPELLEES



CERTIFICATE OF INTERESTED PARTIES

NO. 90-8014

LULAC, et al. vs. JIM MATTOX, et al.

LOCAL RULE 28.2.1 CERTIFICATE

The undersigned, counsel of record for LULAC, et al., 
certifies that the following listed parties have an interest in the 
outcome of this case. These representations are made to enable 
Judges of the court to evaluate possible disqualification or 
recusal.

Plaintiffs:
LULAC Local Council 4434 
LULAC Local Council 4451 
LULAC (Statewide) 
Christina Moreno 
Aquilla Watson 
Joan Ervin
Matthew W. Plummer, Sr. 
Jim Conley 
Volma Overton 
Willard Pen Conat 
Gene Collins 
Al Price
Theodore M. Hogrobrooks 

-.Ernest M. Deckard 
Judge Mary Ellen Hicks 
Rev. James Thomas

Plaintiff-Intervenors:
Houston Lawyers' Association
Alice Bonner
Weldon Berry
Francis Williams
Rev. William Lawson
DeLoyd T. Parker
Bennie McGinty
Jesse Oliver
Fred Tinsley
Joan Winn White

i



Defendants:
Dan Morales, Attorney General of Texas 
John Hannah, Secretary of State 
Texas Judicial Districts Board

Thomas R. Phillips, Chief Justice, Texas Supreme Court 
Michael J. McCormick, Presiding Judge, Court of Criminal 
Appeals
Pat McDowell, Presiding Judge, 1st Admin. Judicial Region 
Thomas J. Stovall, Jr., Presiding Judge, 2nd Admin. 
Judicial Region
B. B. Schraub, Presiding Judge, 3rd Admin. Judicial 
Region
John Cornyn, Presiding Judge, 4th Admin. Judicial Region 
Darrell Hester, Presiding Judge, 5th Admin. Judicial 
Region
William E. Moody, Presiding Judge, 6th Admin. Judicial 
Region
Weldon Kirk, Presiding Judge, 7th Admin. Judicial Region 
Jeff Walker, Presiding Judge, 8th Admin. Judicial Region 
Ray D. Anderson, Presiding Judge, 9th Admin. Judicial 
Region
Joe Spurlock II, President, Texas Judicial Council, 
Leonard E. Davis

Defendant-Intervenors:
Judge Sharolyn Wood 
Judge Harold Entz 
Judge Tom Rickoff 
Judge Susan D. Reed 
Judge John J. Specia, Jr. 
Judge Sid L. Harle 
Judge Sharon MacRae 
Judge Michael D. Pedan

Amicus:
Judge Larry Gist 
Judge Leonard P. Giblin, Jr. 
Judge Robert P. Walker 
Judge Jack R. King 
Judge James M. Farris 
Judge Gary Sanderson 
Judge Mike Bradford 
Judge Patricia R. Lykos 
Judge Donald K. Shipley 
Judge Jay W. Burnett 
Judge Bob Burdette 
Judge Richard W. Millard

ii



Judge Wyatt W. Heard 
Judge Michael T. McSpadden 
Judge Ted Poe 
Judge Joe Kegans 
Judge Scott Brister 
Judge Henry G. Schuble III 
Judge Charles Dean Huckabee 
Judge Woody R. Denson 
Judge Norman R. Lee 
Judge Doug Shaver 
Judge Charles J. Hearn 
Judge David West 
Judge Tony Lindsay 
Judge Louis M. Moore 
Judge Dan Downey 
Judge Bob Robertson 
Judge John D. Montgomery 
Judge Allen J. Daggett 
Judge Robert S. Webb III 
Judge Robert L. Lowry 
Judge Robert B. Baum 
Judge Eric D. Andell

Plaintiffs' Attorneys:
GARRETT & THOMPSON 
William L. Garrett 
Brenda Hull Thompson

Rolando L. Rios

TEXAS RURAL LEGAL AID, INC. 
Susan Finkelstein

Plaintiff-Intervenors' Attorneys:
MULLENAX, WELLS, BAAB & CLOUTMAN 
Edward B. Cloutman III

E. Brice Cunningham

NAACP LEGAL DEFENSE & EDUCATION FUND, 
Julius L. Chambers 
Sherrilyn A. Ifill

MATTHEWS & BRANSCOMB 
Gabrielle K. McDonald

INC.

iii



ATTORNEY GENERAL OF TEXAS
Dan Morales
Will Pryor
Mary F. Keller
Renea Hicks
Javier P. Guajardo

Defendants' Attorneys:

Defendant-Intervenors' Attorneys:
HUGHES & LUCE 
Robert H. Mow, Jr.
David C. Godbey 
Bobby M. Rubarts 
Esther R. Rosenbaum

PORTER & CLEMENTS 
J. Eugene Clements 
Evelyn V. Keyes

Darrell Smith

Michael J. Wood

Independent Counsel for George Bayoud, Secretary of State
LIDELL, SAPP. ZIVLEY, HILL & LaBOON 
John L. Hill, Jr.
Andy Taylor

Independent Counsel for Ron Chapman, Thomas J. Stovall, Jr., 
B. B. Schraub, John Cornyn III, Darrell Hester, Sam M. Paxson, 
Weldon Kirk, Jeff Walker:

GRAVES, DOUGHERTY, HEARON & MOODY 
R. James George, Jr.
John M. Harmon 
Margaret H. Taylor

Amici' Attorneys:
OPPENHEIMER, ROSENBERG, KELLEHER & WHEATLEY, INC. 
Seagal V. Wheatley 
Donald R. Philbin, Jr.

Michael E. Tigar

iv



Gerald H. Goldstein 
Joel H. Pullen 
Tom Maness

Royal B. Lea

RAMSEY & TYSON 
Michael Ramsey

Daniel J. Popeo 
Paul D. Kamenar 
Alan B. Slobodin

Paul Strohl

Daniel M. Ogden

Walter L. Irvin

Orlando Garcia

Berta Alicia Mejia

Larry Evans

MEXICAN AMERICAN LEGAL DEFENSE EDUCATIONAL FUND 
Jose Garza
Judith Sanders Castro

United States' Attorney:
ATTORNEY GENERAL OF THE UNITED STATES
John R. Dunne
Jessica Dunsay Silver
Mark Gross
Susan D. Carle

Attorney of Record for 
LULAC, et al.

Plaintiffs-Appellees

v



STATEMENT REGARDING ORAL ARGUMENT

Counsel for Plaintiffs-Appellees represents that oral 
argument in the above case would be helpful to the Court because 
of the factual and legal questions involved. Counsel believes that 
the Court may have many questions regarding the case that can only 
be answered in oral argument.

Oral argument has been set for Monday, November 4, 1991.

vi



TABLE OF CONTENTS
ITEM PAGE
Certificate of Interested Parties........................ i

Statement Regarding Oral Argument........................... vi

Table of Contents.......................................... vii

List of Authorities...........................................ix

Standards of Review and Notes on Organization of Brief . xii

Statement of Jurisdiction.................................... 1

Statement of the Issues...................................... 2

Statement of the Case........................................ 4

Course of Proceedings and Disposition
in the Trial Court ............. 4

Statement of the F a c t s .............................4

Summary of the Argument................................... 6

Argument ...................................................  9

I. Deference to District Court Findings ...........  9

II. State's Interest in At-Large Elections . . . .  11

Jurisdiction and Electoral B a s e ................ 13

Remedial Considerations .....................  17

III. Linkage of Jurisdiction and Electoral Base . . 18

State Interest and D i l u t i o n ................... 18

Burden of P r o o f ............................... 2 0

Question of Fact or L a w ........................23

IV. Consideration of State's Interest .............  24

State's Interests ............................. 24

C a u s a t i o n ....................................... 25

vii



V. Totality of the Circumstances..................26

VI. Contributions to Finding of Dilution ......... 29

Conclusion and Certificate of Service .................. 32

viii



Cases Pages
Batson v. Kentucky, 476 U. S. 79 (1986)......................  11
Bolden v. City of Mobile, 423 F. Supp. 384 
(S. D. Ala. 1976), affirmed 571 F. 2d 238 
(5th Cir. 1978), reversed on other grounds,
446 U. S. 55 (1980)............................................  22

Bradley v. Swearingen, 525 S. W. 2d 280
(Tex. Civ. App. 1 9 7 5 ) ..........................................  16

Chisom v. Roemer, 111 S. Ct. 2354 (1991) ....................  21

Cross v. Baxter, 604 F. 2d 875 (5th Cir. 1979) .............  23

Eu v. San Francisco Cty. Democratic Cent. Com.,
109 S. Ct. 1013 (1989) ........................................  17

Garcia v. Dial, 596 S. W. 2d 524 (Cr. App. 1980) ...........  15
Garza v. County of Los Angeles,
918 F. 2d 763 (9th Cir. 1 9 9 0 ) ................................. 31

Gregory v. Ashcroft, 111 S. Ct. 2395 (1991).................. 20

Hendrix v. Joseph, 559 F. 2d 1265 (5th Cir. 1977) . . . .  22, 23

Houston Lawyers' Assn. v. Attorney General of Texas,
111 S. Ct. 2376 (1991) ............................. 10, 18-20, 24

Jones v. City of Lubbock, 727 F. 2d 364 (1984) . . . 28, 30, 31

Kirksey v. Board of Supervisors, 554 F. 2d 139 
(5th Cir. 1977) en banc, cert, denied,
434 U. S. 968 (1977) ..........................................  30

Latin American Citizens Council #4434 v. Clements,
914 F. 2d 620 (5th Cir. 1990) en b a n c .................... 17, 27

League of United Latin Am. Citizens v. Clements,
902 F. 2d 293 (5th Cir. 1 9 9 0 ) .................................  17

Major v. Treen, 574 F. Supp. 325
(E. D. La. 1983) ............................................... 22

Monroe v. City of Woodville,
819 F. 2d 507 (5th Cir. 1 9 8 7 ) .................................  31

Nevett v. Sides, 571 F. 2d 209 (5th Cir. 1978) .............  23

TABLE OF AUTHORITIES

IX



Nipper v. U-Haul Co., 516 S.W.2d 467
(Tex. Civ. App. 1 9 7 4 ) ..........................................  13

Reed v. State, 500 S. W. 2d 137
(Tex. Crim. App. 1973) ........................................  16

Rogers v. Lodge, 458 U. S. 613 (1982) ......................  28
Tashjian v. Republican Party of Connecticut,
107 S. Ct. 544 (1986)..........................................  17
Thornburg v. Gingles,
106 S. Ct. 2752 (1986) ....................  10, 17, 20, 23-28, 30

U. S. v. Marengo Co. Com'n.,
731 F. 2d 1546 (11th Cir. 1 9 8 4 ) ...............................  22

Whitcomb v. Chavis, 403 U. S. 124 (1971) ....................  21
White v. Regester, 412 U. S. 755 (1973)......................  21
Zimmer v. KcKeithen, 485 F. 2d 1297 (5th Cir. 1973), 
en banc, aff'd. sub nom. East Carroll Parish School Bd.
V. Marshall, 424 U. S. 636 (1976) .......................  20, 22, 26

Statutes
Texas Civil Practice and Remedies C o d e .......................... 14
Texas Constitution, Art. V, Sec. 18 & 1 9 .................... 16
Texas Constitution, Article 5, Section 8, ......... 14, 15, 22

Texas Government C o d e ..........................................14-16
Texas Rules of Civil P r o c e d u r e ..................................15

Other Authorities
28 Howard Law Journal No. 2, pp. 495-513, 1985,
Engstrom, Richard L., "The Reincarnation of the 
Intent Standard: Federal Judges and At-Large
Election Cases." ............................................... 26

x



Senate Report No. 417, 97th Cong.,
2d Sess. (1982), reprinted in
1982 D. S. Code Cong. & Ad. News 177 ................ 21, 22, 27,

28, 30
Texas Jurisprudence............................................ 15

xi



STANDARDS OF REVIEW

In Thornburg v. Gingles, 478 U. S. 30, 106 S. Ct. 2752, 2781- 

2, 92 L. Ed. 2d 25 (1986), the Supreme Court reviewed its prior 

cases in the face of a contention from North Carolina and the 

Untied States that an ultimate conclusion of vote dilution is a 

mixed question of law and fact subject to de novo review on appeal, 

reaffirmed its view that an ultimate finding of vote dilution is a 

fact question subject to the clearly-erroneous standard of Rule 

52(a). See also, Jones v. City of Lubbock, 727 F. 2d 364, 371 

(5th Cir. 1984).

The trial court's finding of vote dilution in district judge 

elections is reviewable under the clearly erroneous standard.

Errors of law, including use of an improper legal standard in 

evaluating the at-large electoral system for district judges in 

Texas, are reviewable free of the clearly erroneous rule. 

Thornburg v. Gingles, 106 S. Ct. 2752, 2781-2, (1986).

NOTES ON ORGANIZATION OF BRIEF

Plaintiffs-Appellees' Brief on Remand to the Court argues only 

the issues posed by this Court in its letter of August 6, 1991,

Other issues are argued in the Briefs of Plaintiffs-Appellees filed 

previously in this cause.

Xll



STATEMENT OF JURISDICTION

The Trial Court had jurisdiction of this case pursuant to 28 

U. S. C. 1343(3) and (4), upon causes of action arising under 42 

U. S. C. 1971, 1973, 1983, 1988, and the XIV and XV Amendments to 

the United States Constitution. Relief was sought under 28 U. S. 

C. 2201, 2202, and Rule 57, F. R. C. P.

This Court has jurisdiction to hear this appeal by virtue of 

28 U. S. C. 1292 (b), in that the decision appealed has been 

certified as an appealable interlocutory order of the United States 

District Court for the Western District of Texas; and by virtue of 

28 U. S. C. 1292 (a)(1) in that the decisions of January 2 and 

January 11, 1990, issued an injunction.

This Court has jurisdiction under the terms of the United 

States Supreme Court's remand in Houston Lawyers' Assn. v. Attorney 
General of Texas, 111 S. Ct. 2376 (1991).

1



STATEMENT OF THE ISSUES
ISSUE PAGE

SECTION I: 9

What degree of deference should this court extend to the 
district court's conclusion that the state's interest in 
the present electoral scheme did not outweigh minority 
interests in a more representative scheme? What is the 
standard of review? Did the district court so find?

SECTION II: 11

What are the state's interests, if any, in maintaining 
the present electoral scheme? Explain.

SECTION III: 18

Justice Steven's opinion for the court recognized the 
state's interest in linking the geographical area for 
which a trial judge is elected to its jurisdiction. The 
court held that this interest was to be weighed in a 
determination of liability. Please explain your position 
regarding such an analysis. You should consider:

a) . 18
What does a court weigh the state's interest
in linkage against? Is it weighed against 
found dilution? How?

b) . 20
Who bears the burden of proof? Does the 
Burdine construct in Title VII cases offer a 
usable model?

c) . 23
Does the weighing present a question of fact
or a question of law, or a mixed question?
That is, who decides?

SECTION IV: 24

Is the state's interest adequately weighed by inquiry 
suggested by Ginqles? If not, what additional inquiry is 
required to determine liability? Would inquiry into the 
cause of racial bloc-voting (e. g. , inquiry into the 
existence of straight-ticket voting) be relevant to this 
post-Ginqles weighing of state's interest?

2



SECTION V: 26
If weighing of the state's interest takes place as a part 
of the court's assessment of the "totality of the 
circumstances," then how should the court weigh state's 
interest with other Zimmer factors in order to determine 
whether there is liability?

SECTION VI: 29

Given the state's interest in linkage, must a plaintiff 
prove as an element of her claim that only changes in the 
linkage (e. g. single member districts as opposed to 
changes in rules governing single shot voting, and 
majority runoff requirement) will remedy the dilution? 
For example, if a majority runoff requirement is a 
possible cause of dilution, must a plaintiff prove that 
it was not or should it be for the state to prove? Is 
there record evidence from which the court can determine 
the relative contributions to any found dilution of the 
distinct elements of the total electoral process; e. g. 
any contribution to found dilution of majority run-off 
requirements, designated positions, etc.?

3



STATEMENT OF THE CASE

Course of Proceedings and Disposition Below
Pursuant to Rule 28, Federal Rules of Appellate Procedure, 

Appellees do not disagree with the State Defendants-Appellants' 

statement of the course of proceedings and disposition below as 

stated in their Original Brief at pages 2-5, and Brief on Remand at 
pages 2-3.

Statement of the Facts
District judges in Texas (trial level judges) run for four 

year terms in partisan primaries, which have a majority vote 

requirement. In the general election, a plurality of the vote 

wins. Vacancies are filled by appointment by the governor. Each 

candidate must file for a specific district court, which are 

numbered. Each district is coincident with a county boundary 

(except for the 72nd District Court which includes both Lubbock and 

Crosby counties). Elections are at-large, county wide. The number 

of district judges in the counties under attack varies from three 

in Midland County to 59 in Harris County.

Jurisdiction of district courts is statewide. Nipper v. U- 
Haul Co., 516 S.W.2d 467, 470 (Tex. Civ. App. 1974). Venue, on the 

other hand, is provided by statute. Specialized courts (criminal, 

domestic relations, juvenile, civil) are merely district courts 

which are required by statute to give preference to certain types 

of cases. Texas district judges have both decision making and 

administrative roles. Administrative duties, such as making local

4



rules, are usually carried out in concert with other district 

judges.

The Court's attention is called to the Original Brief of 

Plaintiffs-Appellees, pp. 3-4, previously filed in this cause 

regarding facts proved at trial. Plaintiffs-Appellees would also 

call the Court's special attention to the original amicus brief 

previously filed by the United States, pp. 2-12, for a full 

statement of the Texas judicial system and district court decision.

5



SUMMARY OF THE ARGUMENT

Section 2 of the Voting Rights Act, 42. U. S. C. 1973, has 

been determined by the Supreme Court to cover judicial elections.

The findings of the trial court regarding the strength of the 

state's interest in continuing to elect district judges at-large 

are factual findings subject review under the clearly erroneous 

test of Rule 52(a), F. R. C. P. Thornburg v. Gingles, 478 U. S. 30 
(1986). The Supreme Court decision in this case did not change 

that standard of review. Further, it did not set a new standard 

for evaluating the state's interest in the present electoral 

scheme. Rather, it reaffirmed that a state's interest is merely 

one of the factors to be considered in evaluating the "totality of 

the circumstances" to make a vote dilution finding. Houston 
Lawyers' Assn. v. Attorney General of Texas, 111 S. Ct. 2376 (1991)

The state has no compelling interest in maintaining the 

present at-large electoral scheme. The basis of their argument 

that at-large elections promote judicial integrity by linking 

jurisdiction and electoral base is undercut by a factual 

misstatement. There is no coincidence between a district court's 

jurisdiction and the electoral base of the district judge. 

District courts have jurisdiction statewide. Nipper v. U-Haul Co., 
516 S. W. 2d 467 (Tex. Civ. App. 1970). District judges are 

elected by judicial district, which may be a county or a collection 

of counties.

6



The practice in Texas is that judges do not preside only in 

the area where they were elected. Justices of the Peace are 

elected by sub-district, yet have jurisdiction countywide. 

Visiting judges preside anywhere in the state. A case may be heard 
by any district judge without regard to whether the litigants are 

eligible voters in his judicial district.

Whatever state interest there may be in at-large judicial 

elections is not weighed separately against a judicial finding of 

vote dilution based upon the "totality of the circumstances." 

Rather, state interest is one of the "totality" to be considered by 

the trial court is reaching a factual finding of vote dilution. 

Houston Lawyers' Assn. v. Attorney General of Texas, 111 S. Ct. 

2376 (1991).

The burden of proof in vote dilution cases is upon the 

plaintiff to produce evidence that the political processes leading 

to nomination and election are not equally open to participation by 

the minority group. Chisom v. Roemer, 111 S. Ct. 2354 (1991).

The question of state interest is a fact question to be given 

proper deference by the reviewing court. Thornburg v. Gingles, 478 
U. S. 30 (1986).

The asserted state interest is properly evaluated under the 

"totality of the circumstances test." Houston Lawyers' Assn. v. 
Attorney General of Texas, 111 S. Ct. 2376 (1991) . To inquire into 

the cause of racial bloc voting is contrary to the Supreme Court's

7



direction in Thornburg v. Gingles, 478 U. S. 30 (1986), and such 

inquiry represents an attempt to reinject the intent standard into 

vote dilution claims.

The question of a state's interest in at-large elections is of 

relatively minor importance, and does not overcome a finding of 

vote dilution. Senate Report, p. 29, n. 117. The most important 

factors to be proved are the extent to which minority candidates 

have been elected to office and the extent to which voting is 

racially polarized. Thornburg v. Gingles, 478 U. S. 30 (1986).

A plaintiff need not prove the contribution of each aspect of 

an at-large electoral system to the dilution of minority voting 

strength. Vote dilution is a factual finding of the trial court 

based upon the "totality of the circumstances" coupled with an 

intense local appraisal of the operation of the electoral scheme in 
question.

8



ARGUMENT AND AUTHORITIES

SECTION I: What degree of deference should this court extend 
to the district court's conclusion that the state's interest in the 
present electoral scheme did not outweigh minority interests in a 
more representative scheme? What is the standard of review? Did 
the district court so find?

District Court Findings. The trial court outlined the State's 

claims of its interest in the present at-large electoral scheme for 

district judges. Finding of Fact No. 34, pp. 75-6, Memorandum and 

Order of November 8, 1989:

1. Judges elected from smaller districts would be more 
susceptible to undue influence by organized crime

2. Changes in the current system would result in costly 
administrative changes for the District Clerk's office.

3. System of specialized courts in some counties would 
disenfranchise all voters' rights to elect judges with 
jurisdiction over some matters.

Although it did not find that the present system was 

maintained on a tenuous basis as a pretext for discrimination, the 

district judge was not persuaded that the reasons offered for its 

continuation were compelling. Finding of Fact No. 37, pp. 77, 

Memorandum and Order of November 8, 1989.

Appellants' Arguments. The State appellants have argued in 

their most recent brief that the relative weight afforded these 

interests is a legal question, and that the trial court's assertion

9



that these interests are not compelling is a conclusion of law. 

Brief on Remand for State Defendants-Appellants, p. 17.

Appellant Entz asserts that no deference is due the trial 

court's findings since the question of whether the state's interest 

is compelling is a legal question. If the court finds that the 

interests are not compelling, then it must consider them under the 

"totality of the circumstances" test. Brief of Appellant Dallas 

County District Judge F. Harold Entz, p. 2.

Appellees' Reply. This court is required by the holding of

the Supreme Court in Thornburg v. Gingles, 106 S. Ct. 2752 (1986),

to defer to the trial court's factual finding that the state's

interest in the present electoral scheme is not compelling, absent

such finding being clearly erroneous. The ultimate finding of vote

dilution is a fact question subject to the clearly erroneous rule.
Thornburg v. Gingles, at 2781:

We reaffirm our view that the clearly-erroneous test of 
Rule 52(a) is the appropriate standard for appellate 
review of a finding of vote dilution.

Since the Supreme Court held that the question of a state's

interest is to be evaluated within the context of the "totality of

the circumstances," Houston Lawyers' Assn. v. Attorney General of
Texas, ill S. Ct. 2376, 2380 (1991) and the Court held in Gingles
that Rule 52(a) applies to the "totality of the circumstances"

evaluation, then that standard applies to this court's review of

the district court's findings.

10



Assuming, arguendo, that there is any compelling state 

interest to be considered under the totality of the circumstances 

test, then the finding regarding that interest is a factual 

determination. In a Fourteenth Amendment context, assertions of 

compelling state interest are factual findings to be made by the 

trial court based upon "all relevant circumstances." Batson v. 
Kentucky, 476 U. S. 79, 96-97 (1986). The state has the burden of 

establishing the compelling nature of the state's interest with 

actual proof, not just assertions and assumptions. Id. at 97. As 

seen below, the state's avowal of its interest did not survive the 

fact finding process of the trial court.

SECTION II: What are the state's interests, if any, in 
maintaining the present electoral scheme? Explain.

District Court Findings. As stated in Section I above, the 

trial court found that the state had posited freedom from undue 

influence, administrative costs, and specialized courts as its 

interests in maintaining the present at large system for election 

of district judges.

Appellants' Arguments. The State has argued for the first 

time on appeal that maintenance of judicial accountability and 

judicial independence which in turn maintain judicial integrity is 

the state interest at issue. It further posits that the method by 

which this interest is fostered is by linking the jurisdictional 

base of district judges directly to the electoral base. It alleges

11



that the common base is the same as the basic unit of Texas 

government, the county, and that such linkage of jurisdictional and 

electoral base is crucial. Brief on Remand for State Defendants- 

Appellants, p. 17-18.

Appellant Entz has adopted the alleged linkage of elective 

base and jurisdiction as the state interest, which presumably 

justifies a strong presumption against radically changing the very 

office of district judge. He further asserts that specialization 

defines the office, and therefore is a compelling interest. Brief 

of Appellant Dallas County District Judge F. Harold Entz, pp. 2, 
14, 17.

Appellant Wood points to the state's fundamental political 

decision to have trial judges who wield full judicial authority 

alone, and to the historical preference of the citizens of Texas 

for an elected judiciary in which each judge is accountable to each 

voter and is independent from special interest groups. Wood also 

notes that venue, jury selection pools, docket equalization, and 

specialized court system are important state interests. Finally, 

she asserts that the electoral district is coincident with the 

supposed countywide jurisdictional district. Appellant Defendant- 

Intervenor Harris County District Judge Sharolyn Wood's Brief on 

Remand, p. 30-31.

12



Appellees' Reply.
Jurisdiction and Electoral Base. Each of the above set of 

assertions, relying upon the alleged coincidence of electoral and 

jurisdictional base to justify the at-large electoral scheme in the 

face of proven discrimination, are based upon a misstatement of the 

jurisdiction of Texas district courts. There is no concurrence 
between jurisdiction and electoral base. District courts have 

jurisdiction statewide. Nipper v. U-Haul Co., 516 S.W.2d 467, 470 
(Tex. Civ. App. 1974) . District judges are elected from judicial 

districts, which may be one or several counties.1

In addition, the concept of "primary jurisdiction," taken to 

mean jurisdiction within the county, concocted by the appellants is 

a fiction - there is no such thing. A court has or does not have 

jurisdiction. There is no "primary" and "secondary" jurisdiction.

The relation of judicial districts to counties is 
haphazard. There is an intricate web of overlapping districts, for 
example:

3rd Judicial 87th Judicial 349th Judicial
District: District: District:

Anderson Co. 
Henderson Co. 
Houston Co.

Anderson Co. 
Freestone Co. 
Leon Co. 
Limestone Co.

Anderson Co. 
Houston Co.

Source: State Defendants' Exhibits 2 & 3.

13



Jurisdiction is determined by the Texas Constitution and 

statutes.2 Venue, often confused with jurisdiction, is determined 

by a complex set of statutes.3 The general venue rule is that a 

case "shall be brought in the county in which all or part of the 

cause of action accrued or in the county of defendant's residence 

if defendant is a natural person."4 Some venue rules are 

mandatory, for example, an action for mandamus against the head of 

a department of the state government must be brought in Travis 

County, the site of the state capital.5 There are many exceptions 

to the general venue rule. Nowhere in any of the venue statutes is 

venue tied to electoral base.

2 Article 5, Section 8, Texas Constitution: District Court 
jurisdiction consists of exclusive, appellate and original 
jurisdiction of all actions, proceedings, and remedies, except in 
cases where exclusive, appellate or original jurisdiction may be 
conferred by the Constitution or other law on some other court, 
tribunal, or administrative body. District Court judges shall have 
the power to issue writs necessary to enforce their jurisdiction.

The District Court shall have appellate jurisdiction and general 
supervisory control over the County Commissioners Court, with such 
exception and under such regulations as may be prescribed by law.

Texas Government Code, Sec. 24.007, Jurisdiction: The district
court has the jurisdiction provided by Article V, Section 8, of the 
Texas Constitution.

Texas Government Code, Sec. 24.008, Other Jurisdiction: The
district court may hear and determine any cause that is cognizable 
by courts of law or equity and may grant any relief that could be 
granted by either courts of law or equity.

3 Texas Civil Practice and Remedies Code, Ch. 15.

4 Texas Civil Practice and Remedies Code, Sec. 15.001

5 Texas Civil Practice and Remedies Code, Sec. 15.014

14



Jurisdiction and venue are to be distinguished. "Jurisdiction" 

is the power of a court to decide a controversy between parties and 

to render and enforce a judgment with respect thereto, while 

"venue" is the proper place where that power is to be exercised. 

Subject matter jurisdiction cannot be conferred by agreement and 

exists by reason of authority vested in a court by the Constitution 

and statutes. Garcia v. Dial, 596 S. W. 2d 524, 527 (Cr. App.

1980) Venue, on the other hand, may be conferred by agreement. 

Furthermore, as a rule, jurisdiction may not be waived by the 

parties, 7 2 Tex Jur 413, Venue, Sec. 2, whereas venue is so 

ephemeral that, unless properly asserted, it may be waived.6 In 

addition, in multi-county districts, a judge may act in a case in 

any of the relevant counties regardless of where the case arose.7

By amending the state constitution in 1985, the voters of the 

state delegated to the voters of each county the policy decision 

whether a judicial district may be smaller than a county.8 Thus,

Texas Rules of Civil Procedure. Rule 86. Motion to
Transfer Venue.

1. Time to File. An objection to improper venue is waived if not 
made by written motion filed prior to or concurrently with any 
other plea, pleading or motion except a special appearance motion 
provided for in Rule 120a. A written consent of the parties to 
transfer the case to another county may be filed with the clerk of 
the court at any time. ...

7 Texas Government Code, Section 24.017.

8 ...Judicial districts smaller in size than an entire county 
may be created subsequent to a general election where a majority of 
the persons voting on the proposition adopt the proposition "to
allow the division of ____  County into judicial districts composed
of parts of _____  County." ... Texas Constitution, Art. 5, Sec.
7a(i).

15



by leaving the decision up to county voters, the state as a whole 

has abandoned whatever interest it may have had in its alleged 

linkage between electoral base and jurisdiction.

The structure and practice of the Texas court system strongly 

suggests that State of Texas has no interest in continuing at-large 

judicial elections by county.

Justice of the Peace courts, which have jurisdiction over an 

entire county, are elected from county subdistricts. Bradley v. 
Swearingen, 525 S. W. 2d 280, 282 (Tex. Civ. App. 1975). Tex. 
Const. Art. V, Sec. 18 & 19. Tex. Govt. Code, Sec. 27.031, 
Jurisdiction.

State law authorizes a system of "visiting judges," which 

practice allows retired judges to fill-in for elected judges when 

docket conditions require. Texas Government Code, Ch. 75.101. A 

litigant has no electoral recourse against a visiting judge. Reed 
v. State, 500 S. W. 2d 137, 138 (Tex. Crim. App. 1973).

Aspects of any particular case may be heard by any judge 

depending upon the docketing system in use; for example, in Harris 

County there is a central docketing system which assigns hearings 

to any available court.

Since the jurisdiction of the district courts is statewide, 

and since Texas has decided to elect district judges from areas 

smaller than the entire state, it has made the policy decision to 

permit the appearance that lower court judges are accountable to

16



The notion that jurisdiction andonly part of the electorate.9 

electoral base are tied together in order to facilitate judicial 

integrity, or for any reason, is factually inaccurate. Thus the 

state's basic argument for maintaining judicial integrity through 

at-large elections has failed since it can prove neither that its 

alleged interest is implicated in the challenged practice, Tashjian 
v. Republican Party of Connecticut, 107 S. Ct. 544, 551 (1986), 

nor that the practice advances such interest. Eu v. San Francisco 
Cty. Democratic Cent. Com., 109 S. Ct. 1013, 1023 (1989).

Remedial Considerations. Even if the State's assertions 

regarding judicial integrity are correct, remedies are available 

which can protect these interests. Remedy is, first of all, a 

state legislative decision which may embrace sub-districts along 

with other options that will satisfy legitimate state interests: 

smaller than a county multi-member districts, limited voting, or 

cumulative voting. Jurisdiction and venue could remain unchanged. 

As stated by Judge Johnson in his dissent, 914 F. 2d at 669, note 

33:

Once again, the concurrence's asserted concern is 
premised on the anticipated remedy —  subdistricting. 
While the Supreme Court, in Gingles, did indicate that a 
"single-member district is generally the appropriate 
standard against which to measure minority group 
potential to elect," it did not mandate the imposition 
of subdistricts to remedy every instance of illegal vote 
dilution. The concurrence, by erroneously factoring in, 
at the liability phase, concerns which may never be borne

9 League of United Latin Am. Citizens v. Clements, 902 F. 2d
293, 317 (5th Cir. 1990), Johnson, J., dissenting

17



out, refuses to properly acknowledge the intent of the 
Voting Rights Act.

SECTION III: Justice Steven's opinion for the court
recognized the state's interest in linking the geographical area 
for which a trial judge is elected to its jurisdiction. The court 
held that this interest was to be weighed in a determination of 
liability. Please explain your position regarding such an 
analysis. You should consider:

a). What does a court weigh the state's interest in 
linkage against? Is it weighed against found dilution?
How?

The Supreme Court. Justice Stevens wrote, Houston Lawyers' 
Assn. v. Attorney General of Texas, 111 S. Ct. at 2380-81:

... Even if we assume, arguendo, that the State's 
interest in electing judges on a district-wide basis may 
preclude a remedy that involves redrawing boundaries or 
subdividing districts, or may even preclude a finding 
that vote dilution has occurred under the "totality of 
the circumstances" in a particular case, that interest 
does not justify excluding elections for single-member 
offices from the coverage of the Sec. 2 results test. 
Rather, such a state interest is a factor to be 
considered by the court in evaluating whether evidence in 
a particular case supports a finding of vote dilution 
violation in an election for a single-member office.
...Rather we believe that the State's interest in 
maintaining an electoral system - in this case, Texas, 
interest in maintaining the link between a district 
judge's jurisdiction and the area of residency of his or 
her voters - is a legitimate factor to be considered by 
court among the "totality of the circumstances" in 
determining whether a Sec. 2 violation has occurred.

... Because the State's interests in maintaining the at- 
large, district-wide electoral scheme for single-member 
offices is merely one factor to be considered in 
evaluating the "totality of the circumstance," that 
interest does not automatically, and in every case, 
outweigh proof of racial vote dilution.

18



Appellants' Arguments. The State has argued, Brief on Remand 

for State Defendants-Appellants, p. 19, that a state's interest is 

of "constitutional magnitude" and must be weighed only against a 

competing constitutional interest.

Appellant Entz asserts that a compelling state interest would 

"trump" what otherwise would be a Section 2 violation, and that 

even if not compelling, the state's interest will override a mere 

statutory violation. Brief of Appellant Dallas County District 

Judge F. Harold Entz, pp. 2, 12.

Appellant Wood contends that any remedy is to be defended 

against evidence that it intrudes upon the constitutional rights of 

the state to structure its core functions. Appellant Defendant- 

Intervenor Harris County District Judge Sharolyn Wood's Brief on 

Remand, p. 36.

Appellees' Reply. Justice Stevens has stated explicitly that 

a state's interest is "merely one of the factors" to be considered 

in a "totality of the circumstances" analysis. As such it is 

considered along with the other "typical factors." There is no 

authority in Houston Lawyers' Assn. v. Attorney General of Texas, 
111 S. Ct. 2376, for an analysis that posits state interest as a 

rival to a determination that the Voting Rights Act has been 

violated. The Supreme Court has simply reaffirmed the method of 

analysis that this Circuit has long used: state policy underlying 

the use of at-large districting is one factor to be considered to

19



prove the fact of dilution. "...[A]11 of these factors need not be 

proved to obtain relief.” Zimmer v. KcKeithen, 485 F. 2d 1297, 

1305 (5th Cir. 1973), en banc, aff'd. sub nom. East Carroll Parish 
School Bd. v. Marshall, 424 U. S. 636 (1976). It certainly is not 

a threshold factor, as in Gingles, which must be proven to 

establish a vote dilution case. Houston Lawyers' Assn. v. Attorney 
General of Texas, 111 S. Ct. at 2380.

Appellants rely upon Gregory v. Ashcroft, 111 S. Ct. 2395 

(1991), to suggest that the state has an interest of constitutional 

magnitude in at-large elections for district judges. Gregory does 
not apply. Gregory is a case of statutory interpretation: does the 
Federal Age Discrimination in Employment Act apply to appointed 

Missouri state judges? In accord with cited precedent that 

requires a "plain statement" of Congressional intent to interfere 

with a state's setting of qualifications for its own officials, the 

Supreme Court decided that Congress had not made it "unmistakably 

clear" that appointed judges were covered by the Act. In this 

case, however, the Court decided that Congress had made it clear 

that judicial elections are covered by the Voting Rights Act.

b) . Who bears the burden of proof? Does the Burdine
construct in Title VII cases offer a usable model?

Appellants' Arguments. The State has suggested a burden 

shifting approach to the question of dilution. While the plaintiff 

must prove the Gingles factors, and bears the ultimate burden in 

establishing that the current election system results in a denial

20



of voting rights, such shifting suggests that the State need only 

produce evidence of its interest in the maintenance of the system 

and the non-discriminatory reasons for retaining the system. Brief 

on Remand for State Defendants-Appellants, p. 24.

Appellant Entz, on the other hand, correctly states that the 

Title VII model is not helpful because it would inhibit the 

required assessment of the totality of the circumstances. Brief of 

Appellant Dallas County District Judge F. Harold Entz, p. 2.

Appellees' Reply. A plaintiff's burden is to bring forward 

evidence that a challenged election practice has resulted in the 

denial or abridgment of the right to vote based on color or race. 

Chisom v. Roemer, 111 S. Ct. 2354, 2363 (1991). A plaintiff must 

"produce evidence to support findings that the political processes 

leading to nomination and election were not equally open to 

participation by the group in question - that its members had less 

opportunity than did other residents to participate in the 

political processes and to elect legislators [representatives] of 

their choice." White v. Regester, 412 U. S. 755, 766 (1973); 

Whitcomb v. Chavis, 403 U. S. 124, 149-153 (1971).

One of the "totality of the circumstances" factors is the 

state policy behind at-large elections. The legislative history to 

the Voting Rights Act, Senate Report No. 417, 97th Cong., 2d Sess. 

(1982) , reprinted in 1982 D. S. Code Cong. & Ad. News 177, 

(hereinafter, Senate Report) specifically warns that "even a

21



consistently applied practice premised on a racially neutral policy 

could not negate a plaintiff's showing through other factors 

[derived from Zimmer v. McKeithen, supra] that the challenged 

practice denies minorities fair access to the process." Senate 
Report at 29, n. 117.

This warning has been respected by courts reviewing the 

question. U. S. v. Marengo Co. Com'n., 731 F. 2d 1546, 1571 (11th 

Cir. 1984) :

Under an intent test, a strong state policy in favor of 
at-large elections, for reasons other than race, is 
evidence that the at-large system does not have a 
discriminatory intent. On the other hand, a tenuous 
explanation for at-large elections is circumstantial 
evidence that the system is motivated by discriminatory 
purposes. [Citations omitted]. State policy is less 
important under the results test: "even a consistently 
applied practice premised on a racially neutral policy 
would not negate a plaintiff's showing through other 
factors that the challenged practice denied minorities 
fair access to the process. [Senate Report, at 29, n.
117]. But state policy is still relevant insofar as 
intent is relevant to result: evidence that a voting 
device was intended to discriminate is circumstantial 
evidence that the device has as discriminatory result.
See Major v. Treen, 574 F. Supp. at 354-55. Moreover, 
the tenuousness of the justification for a state policy 
may indicate that the policy is unfair. Hendrix v. 
Joseph, 559 F. 2d 1265, 1269-1270 (5th Cir. 1977).

In cases in which the jurisdiction allows a choice between an 

at-large and district electoral system, as does Texas,10 then the 

courts have routinely held that this factor is neutral. Bolden v. 
City of Mobile, 423 F. Supp. 384 (S. D. Ala. 1976), affirmed 571 F. 

2d 238 (5th Cir. 1978), reversed on other grounds, 446 U. S. 55

10 Texas Constitution, Art. 5, Sec. 7a(i)

22



(1980). Accord: Cross v. Baxter, 604 F. 2d 875, 884-85 (5th Cir. 

1979); Hendrix v. Joseph, 559 F. 2d 1265, 1270 (5th Cir. 1977). 

The court in Nevett v. Sides, 571 F. 2d 209, 224 (5th Cir. 1978) 

held that "a tenuous state policy in favor of at-large districting 

may constitute evidence that other, improper motivations lay behind 

the enactment or maintenance of the plan." As noted by the Hendrix 
court at 1269, "the manifestation of a state's policy toward the 

at-large concept can most readily be found in the sum of its 

statutory and judicial pronouncements." Texas has a long and 

shameful history of denigration of minority voting rights. To 

suggest that a state that produced such a plethora of 

discriminatory laws lay aside such prejudice to endorse at-large 

elections is unreasonable and irrational.

c) . Does the weighing present a question of fact or a 
question of law, or a mixed question? That is, who 
decides?

Appellants' Arguments. Both the State defendants, Brief on 

Remand for State Defendants-Appellants, pp. 16-17, and Judge Entz, 

Brief of Appellant Dallas County District Judge F. Harold Entz, p. 

2, argue that the weighing of the state's interest in the at-large 

electoral system is a legal question.

Appellees' Reply. Both are wrong. Since an ultimate finding 

of vote dilution is a fact question subject to the clearly 

erroneous rule, Thornburg v. Gingles, 106 S. Ct. at 2781, and 

since the question of a state's interest is to be evaluated within

23



the context of the "totality of the circumstances," Houston 
Lawyers' Assn. v. Attorney General of Texas, 111 S. Ct. 2376, 2380, 
and since Rule 52(a) applies to "totality of the circumstances" 

evaluation, then that standard applies to a consideration of the 

state's interest.

SECTION IV: Is the state's interest adequately weighed by 
inquiry suggested by Ginqles? If not, what additional inquiry is 
required to determine liability? Would inquiry into the cause of 
racial bloc-voting (e. g., inquiry into the existence of straight- 
ticket voting) be relevant to this post-Gingles weighing of state's 
interest?

a. State's Interests.
Appellants' Arguments. The State suggests that since the its 

interest in at-large elections is of constitutional dimension, then 

its interest is not adequately weighed by the Gingles inquiry. 

Brief on Remand for State Defendants-Appellants, p. 14.

Judge Entz contends that the state's interest should be 

considered an affirmative factor that mitigates against a finding 

of discriminatory results, and, if compelling, prevents such a 

finding. Brief of Appellant Dallas County District Judge F. Harold 
Entz, p. 3.

Appellees' Reply. Since the question of a state's interest 

arises under the scope of the Voting Rights Act, and since the 

Supreme Court has determined that this question is to be considered 

under the "totality of the circumstances" test, Houston Lawyers' 
Assn. v. Attorney General of Texas, 111 S. Ct. at 2380, then its

24



interest is adequately considered by the Gingles inquiry. The 

Supreme Court made it clear in Gingles that the inquiry set out in 
that opinion goes to the "totality of the circumstances."

b. Causation.
Appellants' Arguments. The State suggests that courts should 

inquire into the cause of racial bloc voting to determine whether 

the targeted part of the electoral system caused the alleged 

discrimination, or whether, instead, other factors cause it. Brief 

on Remand for State Defendants-Appellants, p. 27.

Judge Entz believes that partisan voting patterns are not 

relevant to a "totality of the circumstances" evaluation, rather, 

that they are relevant to the question of whether polarized voting 

exists. Brief of Appellant Dallas County District Judge F. Harold 

Entz, p. 3.

Judge Wood says that partisan voting patterns better explain 

the results in Texas judicial races than does racial voting. She 

asserts, without authority, that Section 2 requires a plaintiff to 

show that elections are dominated by racial politics. Appellant 

Defendant-Intervenor Harris County District Judge Sharolyn Wood's 

Brief on Remand, pp. 27-27.

Appellees' Reply. The Supreme Court has rejected inquiry into 

causation. Thornburg v. Gingles, 478 U. S. 30, 62 (1986) . Its very 

definition of racial bloc voting, "a consistent relationship

25



between the race of the voter and the way in which the voter votes" 

or "black voters and white voters vote differently," precludes 

inquiry into causation. Thornburg v. Gingles, 106 S. Ct. at 2768, 

n. 21.

To interject a notion of causation into the inquiry of 

polarized voting is simply an attempt to return the intent standard 

to vote dilution analysis. To accept such an argument would be to 

change the empirical inquiry from the question of whether 

minorities and whites prefer different candidates to the question 

of why a particular candidate wins or loses. In the latter case, 

the analysis no longer addresses the issue Congress mandates be 

considered: the extent to which voting is racially polarized.11

SECTION V: If weighing of the state's interest takes place
as a part of the court's assessment of the "totality of the 
circumstances," then how should the court weigh state's interest 
with other Zimmer factors in order to determine whether there is 
liability?

Appellant's Arguments. Only Judge Entz has addressed this 

question. He suggests that if the state's interest is not 

compelling, then it should be considered as a part of the court's 

overall assessment. Brief of Appellant Dallas County District 

Judge F. Harold Entz, p. 3.

11 For a complete discussion of the issue of reinjecting the 
intent standard, see: 28 Howard Law Journal No. 2, pp. 495-513, 
1985, Engstrom, Richard L. , "The Reincarnation of the Intent 
Standard: Federal Judges and At-Large Election Cases."

26



Appellees' Reply. Fortunately, the legislative history of the 

Voting Rights Act, sheds light on the question. The history sets 

several factors for court review, including state policy which is 

listed as an "additional factor that in some cases ha[s] had 

probative value." Note 117, p. 29, Senate Report, states:

If the procedure markedly departs from past practices or 
from practices elsewhere in the jurisdiction, that bears 
on the fairness of its impact. But even a consistently 
applied practice premised on a racially neutral policy 
would not negate a plaintiff's showing through other 
factors that the challenged practice denies minorities 
fair access to the process.

The courts have declared repeatedly that some of the typical 

factors are more important than others.

"[R]ecognizing that some Senate Report factors are more 

important to multimember district vote dilution claims than others 

... effectuates the intent of Congress." Thornburg v. Gingles, 106 
S. Ct. at 2765, n. 15. Of primary importance are:

1. The extent to which minority group 
members have been elected to office 
in the jurisdiction

2. The extent to which voting in the 
elections of the jurisdiction has 
been racially polarized

Placing importance upon electoral success and voting patterns 

furthers the purpose of the Voting Rights Act to "correct an active 

history of discrimination ... [and] deal with the accumulation of 

discrimination. Latin American Citizens Council #4434 v. Clements, 
914 F. 2d 620, 667, n. 31 (5th Cir. 1990), Johnson, J. , dissenting.

27



Furthermore, the legislative history concluded that some 

factors are of less importance, including the tenuousness of the 

state policy behind at-large judicial elections. "[I]n light of 

the diminished importance this factor has under the results test, 

8 . Rep. No. 417 at 29 & n. 117, 1982 U. S. Code Cong. & Admin. News 
at 2 07 & n. 117, we doubt that the tenuousness factor has any 

probative value for evaluating the 'fairness' of the electoral 

system's impact." Jones v. City of Lubbock, 727 F. 2d 364, at 383 
(1984) .12

Finally, all the enhancing factors that the trial court found 

in this case (at-large; lack of geographic sub-districts; a large 

district; numbered posts; majority vote requirement; and staggered 

terms) have been determined by prior decisions of this court to be 

dilutionary. Jones v. City of Lubbock, 727 F. 2d 364, 383 (5th 
Cir. 1984).

The factual determination of vote dilution is made based upon 

an examination of all of these factors and intense local inquiry. 

Thornburg v. Gingles, 106 S. Ct. at 2781 (1986).

The other less important factor is "unresponsiveness," 
which is no longer a necessary part of a plaintiff's case. Senate 
Report 207, n. 116. Rogers v. Lodge, 458 U. S. 613, n. 9 (1982)

28



SECTION VI: Given the state's interest in linkage, must a 
plaintiff prove as an element of her claim that only changes in the 
linkage (e. g. single member districts as opposed to changes in 
rules governing single shot voting, and majority run-off 
requirement) will remedy the dilution? For example, if a majority 
run-off requirement is a possible cause of dilution, must a 
plaintiff prove that it was not or should it be for the state to 
prove? Is there record evidence from which the court can determine 
the relative contributions to any found dilution of the distinct 
elements of the total electoral process; e. g. any contribution to 
found dilution of majority run-off requirements, designated 
positions, etc.?

Appellants' Arguments. The State maintained that plaintiffs 

must prove that the challenged practice is the cause of the alleged 

discrimination. Brief on Remand for State Defendants-Appellants, p.
27.

Judge Entz takes a similar position. He concedes that a 

plaintiff should not have to negate all possible causes of 

discrimination, but urges that a defendant may prove that something 

else has caused the disparate result, and such proof would negate 

a Section 2 violation. Brief of Appellant Dallas County District 

Judge F. Harold Entz, p. 3.

Judge Wood only argues that proved dilution should be remedied 

without great violence to state institutions. Appellant Defendant- 

Intervenor Harris County District Judge Sharolyn Wood's Brief on 

Remand, p. 29.

Appellees' Reply. There is no requirement that a plaintiff 

prove that a particular aspect of an at-large election system has 

prevented the political access of minorities. In this case, the

29



challenge was to the at-large election system for district judges. 

No particular aspect of the extant system was singled out for 

attack other than the at-large feature. Certain aspects of the 

system were noted by the trial court as enhancing the proved 

discrimination: numbered posts, majority rule requirement in 

primary elections, and a large district in five of the targeted 

counties. Finding of Fact No. 27, pp. 71-72; Conclusion of Law No. 

15, p. 89. The courts have never required that a plaintiff 

establish the contribution of each aspect of the election system to 

the proved discrimination.13 Rather, Congress has found that these 

factors enhance the tendency of the at-large system to submerge 

minority voting strength. Thornburg v. Gingles, 106 S. Ct. at 

2766, n. 15. This Court has noted that the existence of these 

factors in an at-large election scheme aggravates its impact.' 

"[I]ndirectly, these features 'inescapably' act as formal obstacles 

to effective minority participation." Jones v. City of Lubbock, 
727 F. 2d 364, 385 (5th Cir. 1984).

Once the trial court has found vote dilution, its duty is to 

fashion relief so that it provides a complete remedy and fully 

provides equal opportunity for minority citizens to participate and 

to elect candidates of their choice. Senate Report, p. 31; Kirksey 
v. Board of Supervisors, 554 F. 2d 139 (5th Cir. 1977) en banc, 
cert, denied, 434 U. S. 968 (1977); Jones v. City of Lubbock, 727

13 Thornburg v. Gingles, 106 S. Ct. at 2770, notes that these 
factors should be taken into account in establishing the amount of 
white bloc voting that can generally minimize or cancel minority 
voters' ability to elect candidates of their choice.

30



F. 2d at 386-387; Monroe v. City of Woodville, 819 F. 2d 507, 511, 
n. 2 (5th Cir. 1987) ; Garza v. County of Los Angeles, 918 F. 2d

763, 776 (9th Cir. 1990).

At the remedy stage, if the proposed legislative plan includes 

any of the enhancing factors, then the trial court should decide 

whether the inclusion of that factor would prevent a complete 

remedy. It "cannot blind itself to the effect of its districting 

plan on racial groups." Jones, at 386. There is no place under 

the results standard of Section 2 for requiring proof of causation 

at the liability stage of a vote dilution case.

31



CONCLUSION

The Plaintiffs-Appellees, LULAC, et al., request that this 

Court AFFIRM the order of the trial court which found that the at- 
large system for electing Texas district judges in the targeted 

counties violates Section 2 of the Voting Rights Act, and REMAND 
the case to the District Court for entry of a remedial plan.

Dated: October 3, 1991

Respectfully submitted,

ROLANDO L. RIOS 
Southwest Voter Registration 
Education Project 

201 N. St. Mary's, Suite 521 
San Antonio, TX 78205 
512/ 222-2102

GARRETT & THOMPSON 
ATTORNEYS AT LAW 
A Partnership of

Professional Corporations

Attorneys for 
Plaintiffs-Appellees

SUSAN FINKELSTEIN 
Texas Rural Legal Aid, Inc. 
405 N. St. Mary's, Suite 910 
San Antonio, TX 78205 
512/ 271-3807

Attorney for Christina Moreno

32



CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of 
the foregoing instrument was served upon the all parties hereto b} 
delivery to their attorneys of record by U. S. Mail, 
prepaid, or by Federal Express, on Octoi

33