Motion for Clarification

    ‘EDF 

Contributions are 
deductible for U.S. 
income tax purposes. 

NAACP LEGAL DEFENSE 

AND EDUCATIONAL FUND, INC. 

  

Hon. Gilbert Ganucheau 
Clerk ge 
United States Court of Appeals 

for the Fifth Circuit 
100 U.S. Court of Appeals 
600 Camp Street 
New Orleans, LA 70130 

Re: 

Dear Mr. Ganucheau: 

National Office 

Suite 1600 

99 Hudson Street 

New York, N.Y. 10013 (212) 219-1900 Fax: (212) 226-7592 

October 17, 1990 

LULAC v. Mattox 
  

No. 90-8014 

Enclosed please find an original and nineteen copies of Plaintiff- 
intervenor appellees Houston Lawyers’ Association, et. al.’s Motion 
for Clarification in the above referenced case. 

All counsel of record have been served. 

The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part 
of the National Association for the Advancement of Colored People 
(NAACP) although LDF was founded by the NAACP and shares its 
commitment to equal rights. LDF has had for over 30 years a separate 
Board, program, staff, office and budget.   

Regional Offices 

Suite 301 

1275 K Street, NW 

Washington, DC 20005 
(202) 682-1300 
Fax: (202) 682-1312 

Suite 208 

315 West Ninth Street 

Los Angeles, CA 90015 

(213) 624-2405 

Fax: (213) 624-0075 

 



  

IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE FIPTH CIRCUIT 

  

No. 90-8014 

  

LEAGUE OF UNITED LATIN AMERICAN 
CITIZENS (LULAC), COUNCIL #4434, 

et al., 

Plaintiffs-Appellees, 

HOUSTON LAWYERS’ ASSOCIATION, 

et al., 

Plaintiff-Intervenor- 
Appellees, 

JIM MATTOX, et al., 

State Defendants- 

Appellants, 

JUDGE SHAROLYN WOOD AND 
JUDGE F. HAROLD ENTZ, 

Defendant-Intervenor- 

Appellant. 

  

- MOTION FOR CLARIFICATION 

  

Plaintiff-intervenor appellees Houston Lawyers’ Association, 

et al., hereby move this Court for an order clarifying this court’s 

decision in the above captioned case. As grounds for this motion, 

plaintiffs show the following: 

1. This case raised two threshold questions: (a) whether §2 

of the Voting Rights Act applies to the election of judges and; (b) 

whether §2 applies to the election of trial judges elected in a 

countywide election system to numbered posts. 

2. The second question was definitively resolved by this 

 



  

court. The answer to the first question however, remains unclear. 

  

3. This court’s decision in LULAC v. Mattox purports to 

overturn the panel decision of this court in Chisom v. Roemer, 859 
  

  

F.24. 1056, ‘cert. denied, 109 S.Ct. 390 (1988). See, LULAC V. 
  

Mattox, Opinion by Judge Gee, at p.24 [hereinafter "Gee Opinion 

ac. my, In that decision, Judge Gee holds that Congress "stopped 

short" of imposing the strictures of §2 of the Voting Rights Act 

on the election of judges. Id. 

4. In a concurring opinion, Judge Higginbotham reasoned that 

the election of judges is covered by §2, so long as those judges 

function as part of a collegial decision-making body. Judge 

Higginbotham specifically noted that "[t]lhere is no hint that 

Congress intended to withdraw coverage" of §2 from judicial 

elections. Higginbotham Op. at 14. Judge Higginbotham is joined 

in his opinion by Judges Politz, King, Davis, Johnson [inh the 

argument that §2 covers judicial elections] and Judge Wiener [in 

the view that trial judges are single-office holders whose office 

cannot be subdivided into single member districts]. No indication 

is given as to whether Judge Wiener has voted on the threshold 

question of whether §2 applies to judicial elections. 

5. Chief Judge Clark, in a special concurrence, "expressly 

disagree[s] with the majority’s flat-out overruling of Chisom v. 
  

Edwards." Clark Op. at 85. The Chief Judge, noting that the en 

banc court was not confronted with Chisom, revealed that "if 

today’s facts were the same as Chisom’s, I would hold a claim that 

judicial subdistricts, once having no invidious purpose, but 

alleged, over time, to have come to abridge section 2 rights, must 

be factually developed and cannot be dismissed on pleadings alone." 

2 

 



  

Clark Op. at 5S. 

6. The vote of Judge Wiener on the first question is critical 

to the the resolution of both LULAC v. Mattox and Chisom V. 
    

Edwards. Judge Wiener’s vote decides on what grounds LULAC v. 
  

Mattox is reversed. It also decides the question of whether, as 

the majority opinion states, Chisom v. Edwards has in fact been 
  

overturned. 

WHEREFORE, in the interest of the parties in both LULAC and 

Chisom, and the efficient administration of justice, we 

respectfully request that this court clarify the vote of Judge 

Wiener as to the question of whether §2 applies to the election of 

judges. 

Respectfully submitted, 

  

JULIUS LeVONNE CHAMBERS 

SHERRILYN A. IFILL 
99 Hudson Street 

16th Floor 
New York, New York 10013 

Of Counsel: GABRIELLE K. MCDONALD 
MATTHEWS & BRANSCOMB 301 Congress Avenue 
A Professional Corporation Suite 2050 

Austin, Texas 78701 

 



: A i 

  

CERTIFICATE OF SERVICE 

I hereby certify that on this 17th day of October, 1990, 

a true and correct copy of the foregoing Motion for Clarification 

was mailed to counsel of record in this case by first class United 

States mail, postage pre-paid, as follows: 

William L. Garrett 
Brenda Hull Thompson 
Garrett, Thompson & Chang 
8300 Douglas, Suite 800 
Dallas, TX 75225 

Rolando L. Rios : 
Southwest Voter Registration 

Education Project 
201 N. St. Mary’s, Suite 521 
San Antonio, TX 78205 

Susan Finkelstein 
Texas Rural Legal Aid, Inc. 
201 N. St. Mary’s, Suite 521 
San Antonio, TX 78205 

Edward B. Cloutman, III 
Mullinax, Wells, Baab & 

Cloutman, P.C. 
3301 Elm 

Dallas, TX 75226-9222 

Jim Mattox 
Mary F. Keller 
Renea Hicks 
Javier Guajaro 
Attorney General’s Office 
P.O. Box 12548 

Capitol Station 
Austin, TX 78711 

Brice E. Cunningham 
777 South R.L. Thornton Freeway 
Suite 121 
Dallas, TX 75203 

J. Eugene Clements 
John E. 0O’Neill 
Evelyn V. Keys 
Porter & Clements 
700 Louisiana, Suite 3500 
Houston, TX 77002-2730 

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

Ken Oden 
Travis County Attorney 
P.O. Box 1748 
Austin, TX 78767 ’ 

David R. Richards 
Special Counsel 
600 W. 7th St. 

Austin, TX 78701 

Robert H. Mow, Jr. 
Hughes & Luce 
2800 Momentum Place 
1717 Main Street 
Dallas, TX 75201 

Gabrielle K. McDonald 
Matthews & Branscomb 
A Professional Corporation 
301 Congress Avenue 

Suite 2050 

Austin, Texas 78701 

Hol, A 9500 
  

gherrilyn a)/ I£111 

Fhsspany Bd Plaintiff-Intervenors 
Houston Lawyers’ Association