Brief of Appellees Dallas County Plaintiff/Intervenors

    » 
MuLLiINAX, WELLS, BAAB & CLouTMAN, P.C. 

ATTORNEYS AT LAW 

3301 ELM STREET/DALLAS TEXAS 75226-1637 

  

EDWARD B. CLOUTMAN, III February 27, 1990 PHONE (214) 939-9222 
Board Certified-Labor Law METRO 263-1547 

Texas Board of Legal Specialization TELECOPIER (214) 939-9229 

EXPRESS DELIVERY 
  

Mr. Gilbert F. Ganucheau 
Clerk, U.S. Court of Appeals 

for the Fifth Circuit 
600 Camp Street 
Room 102 

New Orleans, Louisiana 70130 

RE: LULAC, et al. vs. Mattox, et al. 

Case No. 90-8014 

Dear Sir: 

Enclosed please find an original and eight copies of 
the Brief of Appellees Dallas County Plaintiff/Intervenors in 
regard to the above referenced matter. 

Please file same and return a file marked copy to the 
undersigned in the enclosed self-addressed envelope. 

By copy of this letter, I am forwarding a copy of this 
document to all interested parties set forth on the Certificate 
of Service. 

Very truly yours, 

MULLINAX, WELLS, BAAB 
& CLOUTMAN, P.C. 

  

By:. [| te 

Kathy Patrick 
for ard B. Cloutman 

/klp 
Encl. 

cc: Certificate of Service List 

 



  

   ND 

NV 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

NO. 90-8014 

LEAGUE OF UNITED LATIN AMERICAN 

CITIZENS, COUNCIL NO. 4434, ET AL., 

Plaintiff-Appellees, 

. | 

and JESSE OLIVER, FRED TINSLEY and 

JOAN WINN WHITE, ET AL., 

Dallas County Plaintiff/Intervenors-Appellees, 

vs. 

JIM MATTOX, ET AL., 

Defendant-Appellants, 

VS. 

JUDGE F. HAROLD ENTZ, ETC., ET AL., 

Defendant-Appellants. 

On Appeal From the United States District Court 
for the Western District of Texas 

BRIEF OF APPELLEES 
DALLAS COUNTY PLAINTIFF/INTERVENORS 
  

MULLINAX, WELLS, BAAB E 

& CLOUTMAN, P.C. 7 

3301 Elm Street c 

Dallas, Texas 75226-1637 Dal 

(214) 939-9222 (2] 

BRICE CUNNINGHAM 
S. R.L. Thornton Frwy. 

By: Edward B. Cloutman, III By: E. Brice Cunningham 

COUNSEL FOR DALLAS COUNTY 

PLAINTIFF/INTERVENORS  



    
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

    

NO. 90-8014 

  

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

Plaintiff-Appellees, 

and JESSE OLIVER, FRED TINSLEY and 
JOAN WINN WHITE, ET AL., 

Dallas County Plaintiff/Intervenors-Appellees, 

vs. 

JIM MATTOX, ET AL., 

Defendant-Appellants, 

VS. 

JUDGE F. EAROLD ENTZ, ETC., ET AL., 

Defendant-Appellants. 

On Appeal From the United States District Court 
for the Western District of Texas 

  

BRIEF OF APPELLEES 
DALLAS COUNTY PLAINTIFF/INTERVENORS 
  

MULLINAX, WELLS, BAAB E. BRICE CUNNINGHAM 

& CLOUTMAN, P.C. 777 S. R.L. Thornton Frwy. 
3301 Elm Street Suite 121 
Dallas, Texas 75226-1637 Dallas, Texas 75203 
(214) 939-9222 (214) 428-3793 

By: Edward B. Cloutman, III By: E. Brice Cunningham 

COUNSEL FOR DALLAS COUNTY 
PLAINTIFF/INTERVENORS 

 



    
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., 

Plaintiff-Appellees, 

and JESSE OLIVER, FRED TINSLEY and 
JCAN WINN WHITE, ET AL., 

Dallas County Plaintiff/Intervenors-Appellees, 

vs. 

JIM MATTOX, ET AL., 

Defendant-Appellants, 

VS. 

JUDGE F. HAROLD ENTZ, ETC., ET AlL., 

Defendant-Appellants. 

  

On Appeal From the United States District Court 
for the Western District of Texas 

CERTIFICATE OF INTERESTED PERSONS 
  

The undersigned counsel of record certifies that the 

following listed persons have an interest in the outcome of this 

case. These representations are made in order that the Judges 

of this Court may evaluate possible disqualification or recusal. 

 



   

  

The League of United Latin 
American Citizens, Council 
#4434 

The League of United Latin 
American Citizens, Council 

#4451 

The League of United Latin 
American Citizens, Council 

(Statewide) 

Christina Moreno 

Aguilla Watson 

James Fuller 

Roland L. Rios 

William L. Garrett 

Brenda Hull Thompson 

Garrett, Thompson & Chang, 
P.C. 

The Houston Lawyers' 
Association 

Sherrilyn Ifill 

Matthews & Branscomb 

Jesse Oliver 

Joan Winn White 

Fred Tinsley 

Edward B. Cloutman, III 

Mullinax, Wells, Baab 

& Cloutman, P.C. 

Interest   

Plaintiff-Appellees 

Plaintiff-Appellees 

Plaintiff-Appellees 

Plaintiff-Appellee 

Plaintiff-Appellee 

Plaintiff-Appellee 

Counsel for Plaintiff-Appellee 

Counsel for Plaintiff-Appellee 

Counsel for Plaintiff-Appellee 

Counsel for Plaintiff-Appellee 

Plaintiff-Appellee 

Counsel for Plaintiff-Appellee 

Counsel for Plaintiff-Appellee 

Plaintiff/Intervenor-Appellee 

Plaintiff/Intervenor-Appellee 

Plaintiff/Intervenor-Appellee 

Counsel for Plaintiff/Intervenor- 
Appellee 

Counsel for Plaintiff/Intervenor- 
Appellee 

11 

 



    
Name 
  

E. Brice Cunningham 

James Creenleaf Boyle 

Jim Mattox 

Ceorge Bayoud 

Thomas R. Phillips 

Michael J. McCormick 

Ron Chapman 

Thomas J. Stovall, Jr. 

James F. Clawson, Jr. 

Joe E. Kelly 

Robert M. Blackman 

Sam M. Paxson 

Weldon Kirk 

Jeff Walker 

Ray D. Anderson 

Joe Spurlock, II 

Renea Hicks 

Javier Guajardo 

Leonard Davis 

Sharolyn Wood 

Interest   

Counsel for Plaintiff/Intervenor- 
Aprellee 

Counsel for Plaintiff/Intervenor- 
Appellee 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appeliant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Counsel for Defendant-Appellants 

Counsel for Defendant-Appellants 

Defendant-Appellant 

Defendant-Appellant 

iil 

 



  

Name 
  

Darrell Frank Smith 

Porter & Clements 

F. Harold Entz 

Robert H. Mow, Jr. 

David C. Godbey 

Hughes & Luce 

Tom Rickhoff 

Susan D. Reed 

John J. Specia, Jr. 

Sid L. Harle 

Sharon MacRae 

Michael P. Pedan 

Seagal V. Wheatley 

DPonald R. Philbin, Jr. 

Oppenheimer, Rosenberg, 
Kelleher & Wheatley, Inc. 

Kaufman, Becker, Pullen 

& Reibach, Inc. 

Goldstein, Goldstein 
& Hilley 

Interest 
  

Counsel for Defendant-Appellant 

Counsel for Defendant-Appellant 

Defendant-Appellant 

Counsel for 

Counsel for 

Counsel for 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Counsel for 

Counsel for 

Counsel for 

Counsel for 

Counsel for 

  

Edward B. Cloutman, III 

iv 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

  

 



  

STATEMENT REGARDING ORAL ARGUMENT 
  

The rights asserted and upheld by the district court 

are of great import to the African-American and Hispanic voters 

of Texas. Oral agrument will aid this Court in understanding 

the appeal herein and the simplicity of the legal issues raised 

by appellants. 

 



    
TABLE OF CONTENTS 
  

CERTIFICATE OF INTERESTED PERSONS . . . 

STATEMENT REGARDING ORAL ARGUMENT . . . 

TABLE OF CONTENTS ov i0.s os ¢ ws oa o's» 

TABLE OF AUTHORITIES « ¢. + +. o « + +.» 

STATEMENT OF JURISDICTION o. wim willl 

ISSUES PRESENTED FOR REVIEW 2 Ae wl ene 

STATEMENT OF THE CASE 

A. Course of Proceedings and 
Disposition in the Court Below 

Be Statement of Facts o Tai in wile 

SUMMARY OF THE ARGUMENT “4 4 a ov i's » 's 

ARGUMENT 

Section 2 of the Voting Rights Act 
Applies to the State District 
JUAGESHIpS IN Texas ww + v os 4. o's 

Racial Polarization Exists in 
Dallas County District Judge Voting 

Section 2 and Its Effects Test is 

Not Precluded by the Constitution . 

Findings of Fact of the District 
Court are not Clearly Erroneous 

le Electoral Success « « + 

2 Type of Election System . 

3. Existence of a Discriminatory 
Slating Process .« « . 

vi 

vi.-vii. 

viii.-ix. 

 



    
TABLE OF CONTENTS (cont'd.) 
  

4. Lingering Effects of Past 
Discrimination ° . * ° ° » . ° ® ° ° . ° 21-22 

De RAaCial ADDEBLIS oo v  0in oo wile wie wien iu 22 

6. Bistory of Discrimination . +. v5 viv nv wi 22 

The Interim Plan was Within the 

Court's Discretion ° ° * ® ° ° ° ° ® ® ° - » - ® . 22-23 

CONCLUSION =v ieee ois wiisiie a is io nnn a uo wie in whe uw 23 

CERTIFICATE OF SERVICE » ® . ° . . ° ° ® * * * . . * . ° 24-26 

vii 

 



    
TABLE OF AUTHORITIES   

Chisom v. Edwards, 839 F.2d 1056 

(5th Cir. 1988), cert. denied, 
SUD NOM ole: oie eile v0 ini wt a nile oe wu win" Teive vw 1 sr 13 

  

Clark v. Pdwards, 725 F.Supp. 285 
(M.D. La., 1988) LJ] [J LJ LJ] LJ LJ LJ [J J [J e ® ° LJ LJ e ll, 13 

  

Graves v. Barnes, 343 F.Supp. 704, 
725, n.. 15, 730-34 (W.D. TX... 
1972 oie 4 ee ee tee ewes eh aie ee ww. 22 

  

Lipscomb v. Wise, F.Supp. = 
(N.D. Txe, 1975) TE TER a I Ta Be RE TEU CE 
  

Mallory v. Fvrich, 839 Fr.28 275 

(6th Cir. 1988) Fal EER FO RAN Sl CRI om IP TR RE ON 
  

Martin v. Allain, 658 F.Supp. 1183 
(S.D. Miss., 1987) WE EE TOE se Pi i Ee a 
  

Monroe v. City of Woodville, 

8381" F.28 1327 (5th Cir." 1989) CERI STUNG SE TRI Ce ae Tr | 
  

Overton v. City of Austin, 

871 F.28 529, 534. (5th Cir. 1989) ile a eee ee le) 
  

Roemer v. Chisom, _____ U.S. ' 
109 S.Ct. 390 (1988) WY WM wna ar 134.13 
  

Southern Christian Leadership 

Conference of Alabama v. Siecelman, 

714 F.Supp. 511 (M.D. Ala., 1989) LJ LJ] LJ LJ \d [J LJ [J 11, 13 

  

  

Tasby v. Estes (Wright), 444 F.2d 124 

(56th Cir. 1971): 342 F.Supp. 945 
(N.D., Tex. 1971): 517 P.24 92 
(5th Cir. 1975), cert. denied, 
423 U.S. 939 (1975); 412 F.Supp. 1185 
(N.D. Tex. 1975); 412 P.Surp. 1192 
{(N.Ds Tex. 1876): 572 F.2d :1010 
{5th Cir. 1978), writ dismissed 
423 U.S. 939 (1981); 520 F.Supp. 683 

  

  

viii 

 



   

TABLE OF AUTHORITIES (cont'd.) 
  

{(N.D. Tex. 1981); 542 FP.Supp, 134 
{(N.D. Tex. 1981): 530 F.Supp. 262 
(N.D. Tex. 1982); 713 F.2d 90 (5th 
Cir. 1983): 585 P.Supp. 453 '(N.D. Tex. 
771 F.23 849 (5th Cir. 1985), 
630 F.Supp. 597 (N.D. Tex. 1986) . 

Terrazas v. Clements, 581 F.Supp. 1329, 
  

1334 (N.D. Tx., 1984) . 

Thornborg v. Gingles, 

478 U.S8. 30 (1986) . 
  

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

Williams v. State Board of Elections, 
  

696 F.Supp. 1563 (N.D. Il1., 1988) . 

STATUTES 

28 UD. 8.C., Section 1291 . +. 

28 U.S.C. Section 1292(a) (1) 

MISCELLANEOUS 

Voting Rights Act, as amended 
£1082). Sa aiie wiiv a ei ® 1, 4, 6, 7. 

ix 

. . . 11 

Ld LJ LJ LJ  ] 

LJ LJ LJ LJ l 

ii-16, 19, 20, 22 

 



   

STATEMENT OF JURISDICTION 
  

The district court issued an injunction on January 2, 

1690, modifying it on January 11, 1990. The state defendants 

filed notices of appeal on January 11, 1990, and January 12, 

1990. Other notices o¢f appeal by various defendants or 

defendant/intervenors were also filed. Jurisdiction exists 

under 28 U.S.C. Section 1292(a)(l) and, to the extent the 

appealed orcers are considered final decisions (e.g., a 

declaratory judgment of the system's illegality), Section 1291. 

ISSUES PRESENTED FOR REVIEW 
  

Plaintiff/intervenors from Dallas County, Jesse 

Oliver, et al. (hereinafter "Oliver") will address the issues 

presented for review as formulated by defendant/intervenor Judge 

Harold Entz (hereinafter "Entz") of Dallas County. The 

remaining issues presented for review in other briefs will be 

addressed, as necessary, by the LULAC plaintiffs or Houston 

Lawyers' Association, plaintiff/intervenors from Harris County. 

It appears that the issues presented for review by 

Entz are those that address the constitutionality of the Voting 

Rights Act as amended (1982) and those that speak to whether the 

Voting Rights Act was correctly applied by the district court. 

As a seemingly catch-all issue, Entz finally suggests that the 

district court's findings of fact are clearly erroneous. 

STATEMENT OF THE CASE 
  

Oliver did not have a copy of the Record on Appeal 

1 

 



available for preparation of their brief. Therefor, similar to 

Entz, Oliver will refer to the transcript by volume and page 

number and to exhibits by the appellation used at trial. 

A. Course of Proceedings 
and Disposition in the Court Below 

Plaintiff/intervenor Oliver, et al. ("Oliver") does 

not have material disagreement with the statement supplied this 

Court by Entz in his brief. The chronology appears accurate and 

adequate for this Court's purposes. 

However, Oliver takes exception to the self-serving 

description regarding the interim plan proposed ané later 

modified and adopted by the district court. While Entz and 

others may maintain in their argument that these remedies 

"effectively mangled" the Texas judicial system, or that the 

district court's remedy ruling "improperly" discarded partisan 

voting, such references are inappropriate in the statement of 

Course of Proceedings and are simply unsupported argument by 

appellant. 

Additionally, it should be noted that plaintiffs, 

Oliver and the Harris County plaintiff/intervenors have filed a 

petition for rehearing regarding their request for an injunction 

prohibiting elections at-large pending appeal. As of this 

writing, that petition has not been acted on, despite the 

approaching March primary elections.  



   

B. Statement of Facts 

Initially, Oliver wishes to correct some misstatements 

of fact in the brief of appellant Entz. Entz would have this 

Court understand that undisputed in evidence is the fact that 

there are thirty-seven (37) "single member" district judgeships 

in Dallas County, Texas. While it is true that judges are 

selected to specifically numbered district court seats, they all 

run at-large and in groups numbering as large as thirty-two (32) 

(1990) on the same ballot in Dallas county-wide. 

There also is no evidence in the record to suggest 

that no interest group in a county such as Dallas can exercise 

undue influence over any particular judge, nor that any or all 

judges will have a county-wide perspective to match their 

county-wide jurisdiction, contrary to the assertion of Entz 

(Brief, p. 6). 

There is no dispute that Dallas is a predominantly 

Republican county. Contrary to the assertion of appellant Entz, 

the Republican vote in Dallas County is not color-blind. White 

voters tend to vote seventy percent (70%) or better for 

Republican candidates but only twenty-eight percent (28%) do so 

by straight ticket voting (TR. 5: 281; DI-Dallas X. 16)1/. 

  

l/ All references to the transcript of proceedings will be 
denoted by "TR." followed by the appropriate volume and 
page number (TR. Vol:page). References to exhibits will be 
denoted as follows: "PX" - plaintiffs' exhibits; "PI- 
Dallas" - Oliver exhibits; "DI-Dallas" - Entz exhibits; and 

(continued...) 

 



   

The Republican party in Dallas has shown considerable indiffer- 

ence to outright hostility to black voters in Dallas (TR. 4:225- 

227, 229-234). Republican candidates have also demonstrated 

these qualities (Finding of Fact Nos. 29 and 30; R.E. 72). 

What is painfully clear in Dallas is that no black 

candidate for district judgeship has ever been elected to that 

seat with the support of the black community. One hundred 

percent (100%) (5 in all) of the black candidates for district 

judge seats who did enjoy the overwhelming support of the black 

vote have been cefeated. (PI-Dallas X. 16; TR. 2:131-33; PX D- 

2). 

While is it clear the partisan voting exists in Dallas 

County, it constitutes neither an excuse for non-compliance with 

the Voting Rights Act nor an explanation for the totality of 

circumstances as found, by the district court to support 

Oliver's claims. Rather, race is the predominant factor in 

terms of voter preference and candidate selection for the seat 

of district judgeship in Dallas. The following analysis by 

Oliver exemplifies the state of the record before the district 

court. 

Dallas County has more population than fifteen (15) 

states of the United States indicating that the thirty-seven 

  

1/(...continued) 

"DX" - state defendants. References to the record excerpts 
will be denoted by "R.E.". 

 



   

(37) judicial district seats in Dallas County have a constituen- 

cy greater in number than thirty (30) senators in the United 

States Senate (PI-Dallas X. 4). The African American or black 

population of Dallas County is overwhelmingly concentrated with 

some thirty-six (36) contiguous voting precincts ninety percent 

(90%) or greater black in population, and in an additional 

twenty-nine (29) surrounding precincts which are fifty to ninety 

percent (50% to 90%) black (PI-Dallas X. 7; See alsc Finding of 

Fact No. 6, R.E. 15-16). 

The appellants (at least the state defendants and 

Entz) concede that black voters are politically cohesive in 

Dallas County. Of course, this is overwhelmingly supported by 

the evidence offered by plaintiffs and Oliver and is correctly 

found. by the ‘district court .in Findings of Pact No. 1l7(a) 

through (h) and 17(j) through (1) (R.E. 32-37). 

Similarly, this same evidence established a strong and 

distinct difference between the way black and white voters cast 

their ballots in Dallas County. Racial bloc voting or racially 

polarized voting was demonstrated by this distinction. 

The evidence also convincingly demonstrated that white 

bloc voting exists in Dallas County and that such is suffi- 

ciently strong to generally defeat the choice of the black 

community. See the district court's Findings of Fact 17(m) 

through (n) (R.E. 37-38). See also, Finding of Fact 17(p) for 

defendant's expert analysis (R.E. 39). 

5 

 



    
The state defendants and Entz have asserted that 

partisan voting explains the vote difference between black and 

white voters in Dallas County. As will be argued infra, such 

explanation is not contemplated as a defense under the Voting 

Rights Act and its amended Section 2, and therefore is largely 

irrelevant. Oliver's expert witness at trial, Dr. Dan Weiser, 

testified at some length that non-partisan races analyzed in 

terms of black/white vote patterns revealed similarly strong 

divisions between white and black voters and their preferences 

at the ballot box (TR. 3:19 - 3:26; PI-Dallas X. 25). 

Entz has contended that the use of the 1980 Census 

flaws all of plaintiffs' and Oliver's proef in this case. 

However, no better information was pointed to by defendants. 

The only evidence offered by defendants Entz regarding reliabil- 

ity of the 1980 Census is that it was nine years old and 

anecdotal opinions that the Asian community had grown in Dallas 

to such an extent as to flaw any analysis using this data. 

Oliver's expert, who consulted the post 1980 Census estimates 

for Dallas County disagreed, and stated that in his opinion, the 

black community remained geographically compact and segregated; 

that whatever growth had occurred in Dallas County occurred at 

Anglo precincts; and that the Asian population had increased 

approximately 20,000 persons in the 1980s, in a population of 

over 1.7 million people (TR. 3:44). 

Another contention by Entz is that voting age 

6 

 



   

population statistics were not utilized in plaintiffs' and 

Oliver's analysis. This is contradicted by the evidence offered 

by Dr. Weiser at trial (TR. 3:30; PI-Dallas X 6); yet the 

evidence of Entz included a telephone survey of a handful of 
  

voters to analyze why voters acts the way they do. 

Omitted in Entz's Statement of the Facts any reference 

to the history of discrimination in Dallas County which is 

shameful at best and certainly lengthy. The district court took 

notice such in part at Findings of Fact 25 and 26 (R.E. 69-70). 

The district court found that Dr. Weiser's testimony, 

which characterized the Republican Party of Dallas County as a 

dominant white slating group, to be at variance with legal 

standards, Overton v. City of Austin, 871 F.2d (5th: Cir. 
  

198 __) at 534. However, such a definition is no where to be 

found in the history of the Voting Rights Act amendments to 

Section 2, just as there is no reference to the partisan nature 

of elections regarding any voting scheme or procedure. Oliver 

submits that the Republican Party functions as a slating group 

in the sense that it is a party dominated by a large majority of 

white voters who, in turn, outnumber and submerge any black 

voting opposition at-large in the general election (TR. 3:26- 

27). To such an extent, coupled with the historical exclusion 

of black voters in the Republican primary, there is a dominant 

white slating group. 

Contrary to the contention of Entz on appeal, there is 

7 

 



no requirement under Section 2 that the lingering effects of 

past discrimination must have a causal relationship with the 

casting of an effective ballot. The evidence is clear, as 

pointed out in the brief for plaintiffs, that in Dallas County, 

black citizens are well behind their white peers in terms of the 

level of employment, annual income, educational level. 

Also misstated in Entz's brief is the state of the 

record with respect to racial appeals in Dallas County. The 

district court correctly found that racial appeals were inserted 

by the Republican candidate in the 1986 election for district 

attorney and in the 1988 judicial election in the Republican   

primary between the black incumbent candidate and his anglo 

challenger. These racial appeals are analyzed at Finding of 

Fact 30 (R.E. 73) and were not contested by defendants or Entz 

(TR. 4:92-83). 

With respect to electoral success of black candidates, 

seven (7) black candidates have opposed anglos in district court 

general elections in Dallas County. They have won two (2) of 

those seven (7) elections. Neither successful candidate was the 

choice of the black electorate. Indeed, each of the successful 

candidates received less than one percent (1%) of the black vote 

(PX D-2; Finding of Pact 31, R.E. 73-74). 

Some evidence was offered by defendants as to the pool 

of qualified attorneys from which district judges may be 

selected. Entz and the state defendants would have this Court 

8  



adopt a standard that has its foundation on past discrimination. 

They suggest to the Court that since the pool of black attorneys 

is disproportionately small when compared to the general 

population, despite being the result of historical discrimina- 

tion, it is the correct standard by which to measure electoral 

success. This standard, however, is not the "pool" in reality, 

for that reservoir is found in the number of well-qualified 

black attorneys who file for office (and who run unsuccessful- 

ly). Even Entz's expert witness, Dr. Anthony Champagne, 

admitted that the pool of lawyers has little or no relationship 

to the rate of success for black candidates to actually file and 

run for office (TR. 4:162-63). 

Neither the state defendants nor Entz make any 

contention that black judicial candidates Oliver, J. White, 

Tinsley nor witness, H. Ron White, were not well qualified to 

serve on the state district bench. To the contrary, in the five 

(5) judicial races run by intervenors White, Tinsley and Oliver 

together with that H. Ron White, each was the recipient of major 

endorsements by legal groups and newspapers; each run a well 

financed campaign; all sought to campaign on a county-wide basis 

for the seat of district judge. 

Each of these black candidates enjoyed the overwhelm- 

ing support of the black community and in each case, these five 

(5) candidates lost to the overwhelming bloc of white vote cast 

against them (TR. 2:163-171; 2:194-204; 2:235-240; and 2:242- 

9  



    
248). 

These unsuccessful black candidates for the state 

district bench also expressed the view that they did not believe 

a change in partisan affiliation would have improved their 

plight with the white voters (TR. 2:188-189; 2:204-206; 2:214- 

215). 

These unsuccessful candidates also testified as to why 

they should not run in Dallas County on the Republican ticket. 

Each expressed a philosophical difference with the Republican 

party's views toward black citizens, as well as its repugnance 

to their own viewpoints and that of their black constituency. 

They expressed the view that to run as a Republican in Dallas 

County would be to abandon their philosophical beliefs and to 

abandon their black constitutency (TR. 2:172-174; 2:205-206; 

2:240-241; 2:248-249). 

This testimony is underscored by the simple and 

historical fact that black voters have not and do not partici- 

pate in the Republican party primaries and do not exercise their 

franchise in that process (TR. 3:15-17; PI-Dallas X. 13, 14 and 

15). This is consistent with the testimony of Republican Chair 

Tom James cited above. 

As if to underscore plaintiffs' contention that voting 

is racially polarized in Dallas County, a witness called by Entz 

at trial, Judge Carolyn Wright, stressed that she believed that 

a black judge would have a very difficult time running and 

10 

 



    
winning in a majority anglo area in a smaller-than-county 

district (TR. 4:205; 4:207-208). 

SUMMARY OF THE ARGUMENT 
  

Section 2 clearly applies to judicial elections 

without any distinction as to district court versus appellate 

court. Virtually every court considering such question has 

found coverage under the Act. Chisom v. Edwards, 839 F.2d 1056 
  

(5th Cir. 1988), cert. denied, sub nom, Roemer v. Chisom, 
  

B.8. _____r109"8.Ct. 390 (1988); Martin v. Allain, 658 F.Supp. 
  

  

1183 (S.D. Miss., 1987); Clark v. Edwards, 725 F.Supp. 285 (M.D. 

La., 1988); Mallory v. FEyrich, 839 F.2d 275 (6th Cir. 19588); 
  

Southern Christian Leadership Conference of Alabama v. Siecelm- 
  

an, 714 F.Supp. 511 (M.D. Ala., 1989); and Williams v. State 
  

Board of Elections, 696 F.Supp. 1563 (N.D. Ill., 1988). 
  

This Court should reject the contention of the state 

defendants and Entz that (a) partisan voting is polarized but 

racial voting is not; and (b) that Whitcomb v. Chavis, 403 U.S. 
  

124 (1971) immunizes racial polarization in Dallas County 

because it coincides with the phenomenon of partisan voting. 

The issue of whether partisan voting occurs in Dallas County is 

irrelevant to inquiry under Section 2 of the Voting Rights Act. 

What Whitcomb, supra, stands for after the amendment to Voting 
  

Rights Act Section 2 is simply that there exists no cause of 

action by voters for lack of proportional representation by 

race. 

11 

 



   

Section 2 of the Voting Rights Act and its incorpora- 

tion of the "effects" test is a lawful exercise of the Congress’ 

legislative prerogative to protect the constitutional right to 

vote. No limitation exists on Congress' ability to legislative- 

ly enhance protection of the guarantees of the Fifteen Amendment 

(nor for that matter of the Fourteenth Amendment). The use of 

an "intent" versus "effects" rule is simply a burden of proof 

issue subject to legislative change. Nowhere does the Constitu- 

tion prohibit the Congress from altering a standard of proof 

relative to enforcement of constitutionally protected princi- 

ples. Constitutional guarantees may not be minimized by 

legislation; they may be enhanced. 

No right guaranteed the states or any subdivision 

thereof is violated by the legislative implementation of the 

Fifteenth Amendment via the Voting Rights Act Section 2 

requirements. 

Oliver urges this Court to affirm the findings of fact 

of the district court relative to Dallas County. They are amply 

supported by the record evidence offered by plaintiffs and 

Oliver. Those findings are most certainly not clearly errone- 

ous. 

The interim plan ordered by the district court, as 

amended, was well within the court's sound discretion, giving 

the state ample opportunity to respond with a remedy of its own, 

and utilizing existent election districts in the affected 

12 

 



   

counties. Such districts were already pre-cleared under the 

requirements of Section 5 of the Voting Rights Act. 

ARGUMENT 
  

Section 2 of the Voting Rights Act Applies 
to the State District Judgeships in Texas 

Plaintiffs have addressed the issues regarding 

coverage by Section 2 of the Voting Rights Act of district court 

or single judge elections. Oliver adopts those arguments 

without repeating same here. In summary, Oliver asserts that no 

distinction is suggested by the language of the statute nor by 

any case interpreting the amendments to Section 2, that would 

exempt trial judges from the purview of Voting Rights Act 

coverage. The very arguments advanced by the various appellees 

to this end have been dealt with directly or indirectly and 

rejected by the courts. See Chisom v. Edwards, 83% F.2d 1056 
  

(5th Cir. 1988), cert. denied, sub nom, Roemer v. Chisom, 
  

U.S. r 109 S.Ct. 390 (1988); Mallory v. Fyrich, 539 F.24   

275 (eth Cir. 1988); Clark v. Fdwards, 725 F.Supp. 285 (M.D. 
  

La., 1988); Southern Christian Leadership Conference of Alabama 
  

Vv. Siegelman, 714 F.Supp. 511 (M.D. Ala., 1989); and Martin v. 
    

Allain, 658 F.Supp. 1183 (S.D. Miss., 1987). 

Racial Polarization Exists in 
Dallas County District Judge Voting 

Notwithstanding the interesting but desparate argument 

of the state defendants and Entz that racial polarization does 

not exist in voting patterns in Dallas County, the evidence 

13 

 



clearly indicates otherwise. State defendants and Entz would 

have this Court accept the premise that all voting patterns 

examined by the district court are the result of partisan voting 

alone in Dallas County. This leap requires the Court to do 

several things: (1) to accept a new defense to Section 2 claims 

which would effectively emasculate any challenge to general 

election partisan voting under Section 2; (2) to believe that 

partisan voting occurs in a vaccum without regard to historical 

factors, racial composition of political parties and their 

traditional candidates as well as the views of the black 

electorate and their preferred candidates (who testified at 

trial); and (23) to accept the notion that in spite of Congress’ 

attempts to amend Section 2, all it was attempting to do was to 

reinstitute the test of Whitcomb v. Chavis, supra and insulate   

all voting of a partisan nature from challenge under the Voting 

Rights Act. 

Oliver contends that tc accept any of these defenses 

or explanations for voting patterns in Dallas County borders on 

the absurd. Of course there is partisan voting in Dallas County 

-— no dispute is made as to that fact. But what of it? Whether 

partisan voting exists or not is wholly irrelevant to the 

consideration or whether there is racial polarization. The 

legislation and its history speak to the latter, not the former. 

Utilizing the effects tests embodied in Section 2, racial 

polarization is easy to determine by an examination of voting 

14  



   

patterns of the plack electorate versus the white bloc voting. 

The white vote bloc in all cases defeats the black electorate 

at-large in Dallas County. The state defendants and Entz argue 

that tna spite of the fact that polarized voting along racial 

lines exists, most black voters cast their ballot in the 

Democratic primary as well as for the Democratic candidates in 

the general election, and that the racial characterization of 

their vote immediately "converts" to partisan. Because of this 

change of labels, they assert same is not voliative of the 

Voting Rights Act. They do not address the evidence of non- 

partisan racial polarization in Dallas in any meaningful manner. 

Indeed, the emperor has new clothes. This argument 

removes from the protection of Section 2, as amended, all 

elections where political parties are involved. An argument can 

always be made that the voters are voting along party and not 

race lines. If the court accepts these blinders, it will effec- 

tively repeal Section 2 application in all such partisan 

instances. Oliver submits this was not the intent of Section 2, 

as can be plainly seen from a review of the legislative history 

contained in the Senate Report regarding Section 2 cited in 

plaintiffs' and defendants' briefs. 

It is interesting to note is that, in fact, what is 

left of Whitcomb v. Chavis, supra, after the amendments to 
  

Section 2, is simply that there is no cause of action by a 

voter premised upon the lack of proportional representation by 

15 

 



   

race. Oliver certainly does not contend that the lack of 

proportional representation of black judges in Dallas gives rise 

to his claim here. Rather, the meeting of the Gingles three (3) 

part criteria and the totality of the circumstances gives rise 

to a violation of the Voting Rights Act in Dallas County as is 

amply demonstrated by the evidence introduced at trial. 

As if it anticipated defendants' argument, the Supreme 

Court's decision in Thornborg v. Gingles, 478 U.S. 30 (1986) 
  

addressed a Section 2 challenge in a partisan voting context. 
  

No where does the Supreme Court indicate any concern with the 

partisan nature cf the voting involved in that circumstance. It 

certainly does not find it to be a defense. Rather, the Supreme 

Court set out a three part threshold test which if met would 

demonstrate a violation of Section 2: black citizens in Dallas 

must demonstrate (1) that they are sufficiently large and 

geographically compact to constitute a majority in a single 

member district; (2) that they are politically cohesive; and 

(3) that the white majority in Dallas County votes sufficiently 

as a bloc to enable it in the absence of special circumstances 

to usually defeat the black community's preferred candidate. 

Oliver submits all of these threshold tests were satisfied by 

the proof as to Dallas County. It is also important to note 

that the state defendants and Entz do not seriously contest 

these findings in Dallas County. 

What the state defendants and Entz do assert is that 

16 

 



   

plaintiffs and Oliver did not meet the "totality of the circum- 

stances" tests articulated by Gingles and recently addressed by 

  

this Court in Monroe v. City of Woodville, 881 F.2d 1327 (5th 
  

Cir. 1989). 

The chief thrust of defendants' position concerning 

the proof in this case is that there is not racially polarized 

voting in Dallas County. This argument, of course, flies in the 

face of the testimony of plaintiffs' expert, Oliver's expert, 

the statistical evidence offered by both, the anecdotal 

testimony of unsuccessful black candidates from Dallas County, 

all of whom demonstrate that the overwhelming choice of the 

black community is consistently defeated in county-wide races 

for district judgeship by the white bloc of voters who outnumber 

them. The district court was correct in accepting their 

evidence as persuasive. 

The proof in Dallas County is that black candidates 

supported by over ninety percent (90%) of the black electorate 

have suffered defeat in one hundred percent (100%) of the races 

for district judgeship conducted. The only two (2) black 

candidates ever elected to the district judge seats in Dallas 

County have been elected with less than one percent (1%) of the 

black vote. These judges are clearly not the choice of the 

black community. Additionally, the political cohesion noted 

above is overwhelmingly demonstrated by Dallas County voting 

patterns. Five (5) unsuccessful district judgeship races of 

17 

 



   

black candidates petted each candidate over ninety percent (90%) 

of the black voting strength in Dallas County. Each race was an 

unsuccessful one for the black candidate. Political cohesion is 

not challenged in Dallas by defendants or Entz. 

A source of confusion in the defendants' argument is 

their attempt to combine two (2) of the factors establishing 

totality of circumstance. Entz wishes to combine the issues of 

success of minority electoral candidates with the racial 

polarization test. They are separate considerations and are 

both adequately addressed by Oliver and plaintiffs' proof in 

Dallas County. White and black voters do vote substantially 

different and are racially polarized in every general election. 

The success of black candidates in the same general election 

scheme has been marginal and has occurred only when the black 

candidate enjoys almost all white vote support (remembering that 

the two (2) successful black candidates for district judgeships 

in Dallas enjoyed less than one percent (1%) of the black vote). 

It may be safely said in Dallas County that in every 

instance a black candidate has enjoyed the support of the black 

community, running at-large in Dallas County for a district 

judgeship, the candidate has lost, submerged in the sea of white 

votes cast against them. 

If a comparison of black versus white judicial races 

is highly relevant for purposes of Section 2 analysis, and if 

minority success of candidates is measured, the district court 

18 

 



    
& 

was quite correct in finding that plaintiffs and Oliver 

satisfied both elements in their Section 2 proof. 

Section 2 and Its Effects Test 
is Not Precluded by the Constitution 

Entz urges this Court to find that Secticn 2 was not 

a valid exercise of Congressional authority. This is a rather 

bold assertion which would have this Court hold that because 

previous decisions regarding claims under the Fifteenth 

Amendment required a showing of purpose or intent, no legisla- 

tive enhancement may be had of those rights, including adoption 

of the "results" or "effects" test. Contrary to the assertion 

of Entz, the Senate Report from the Committee on Judiciary 

relative to Section 2 amendments endorses the use of the results 

or effects test after considering and rejecting a standard 

utilizing purpose or intent. No court has held that purpose or 

intent is required under the Voting Rights Act and indeed 

Congressional authority exists to expand upon the method for 

protection of voting rights. 

Similarly, no right guaranteed the states or any 

subdivision is violated by the legislative implementation of the 

Fifteenth Amendment via the Voting Rights Act Section 2 require- 

ments. Obviously, all states are governed by the Fifteenth 

Amendment. Clearly, it follows that under the Supremacy Clause, 

enabling legislation that offers effective enforcement of such 

rights are also binding upon the states. Any rights reserved to 

19 

 



   

the states have been effectively amended by the Fifteenth 

Amendment and legislatively clarified through the Voting Rights 

Act. 

Findings of Fact of the District 
Court are not Clearly Erroneous 

As alluded to above, the findings of fact of the 

district court relative to the "Zimmer" factors are supported by 

the record evidence. The district court's careful analysis of 

those factors as they pertain to Dallas County and reliance upon 

the evidence submitted cannot be said to be an abuse of the 

trial court's discretion to as the finder of fact. 

3. Electoral Success   

There have been only seven (7) general elections in 

which black candidates have run for the position of district 

judge. Of those seven (7), black candidates were unsuccessful 

in five (5). The remaining two (2) involved black candidates 

who were successful, but who enjoyed less than one percent (1%) 

of the black voters' support. 

2. Type of Election System 
  

Dallas County is an enormous election district, being 

larger in population than fifteen (15) states of the union. 

Party primaries have a majority vote requirement. There is no 

winner-take-all provisions because of the numbered court or post 

system; that is to say, candidates must file and run for the 

thirty-seven (37) district court seats separately and not stand 

20 

 



    
as a group to determine who will be the top thirty-seven (37) 

vote recipients. 

  

3. Existence of a Discriminatory flating Process 

| The record shows that the Republican party acts as a 

dominant white slating group in Dallas County. The district 

court found that such proof did not agree with the judicial 

definition of slating found in Overton v. City of Austin, 871 
  

P.24 529, 534 (5th Cir. 1989). The court 4id not make a fact 

finding that the process was not discriminatory. 

4. Lingering Effects of Past Discrimination 
  

Plaintiffs introduced evidence which demonstrated that 

black citizens suffer from lower economic and educational status 

than whites in Dallas County. Oliver cited to the district 

court judicial decisions analyzing Tasby v. Estes (Wright), 444 
  

F.2d'124 (5th Cir. 11871); 342 F.Supp. 945 (N.D. Tez. 1971); 517 

F.2d 92 (5th Cir. 1975), cert. denied, 423 1.8, 939 (1975); 412   

F.Supp. 1185 (N.D. Tex. 1975): 412 F.Supp. 1192 (M.D. Tex. 

1076); 572 P.24 1010 (5th Cir. 1978), writ ‘dismissed 423 U.S. 

939 (1981); 520 F.Supp. 683 (N.D. Tex. 1981); 542 F.Supp. 134 

(N.D. Tex. 1981); 530 F.Supp. 262 (N.D. Tex. 1982); 713 F.24 90 

(5th Cir. 1983); 585 F.Supp. 453 (N.D. Tex. 1984) 771 F.24 849 

(5th Cir. 1985), 630 F.Supp. 597 (N.D. Tex. 1986) for recent 

examples of education and housing discrimination in Dallas 

County. Whether casual links can be established between present 

educational and socio-economic status and prior discrimination 

21 

 



is interesting but not relevant nor required in assessing this 

zimmer factor. 

5. Racial Appeals 
  

The district court specifically found evidence of two 

(2) recent incidents of appeals to race in county-wide elections 

in Dallas, one occurring in 1986 and the other in 1988. 

6. History of Discrimination 
  

The district court had ample evidence of official 

discrimination against the voting rights of black voters in 

Dallas County. Specifically had before the decisions in 

Lipscomb v. Wise, _ F+SUpD» (N.D. Tx., 1975); Graves 
  

v. Barnes, 343 F.Supp. 704, 725, n. 15, 730-34 (W.D. Tx., 1972); 
  

Terrazas v. Clenents, 581 F.Supp. 1329, 1334" (N.D. Tx., 1984). 
  

Consequently, in review of the totality of the 

circumstances above, the district court's findings were not 

clearly erroneous. 

The Interim Plan was Within the Court's Discretion 

The interim plan ordered by the district court for 

Dallas County utilized state legislative district lines for the 

selection of judges in the 1990 elections. These district lines 

have been approved by the United States Department of Justice 

for use in elections for the state legislature and consequently, 

no objection would be lodged under the Voting Rights Act Section 

5. Moreover, the districts are known quantities, the citizens 

of Dallas having used same in substantially the same form since 

22  



   

1072. The interim districts would have protected the black 

voters found by the district court to have suffered from at- 

large elections in previous years. The district court in its 

orders regarding remedy allowed the state an ample opportunity 

to respond, and indeed, its amended order fcr an interim plan 

would not begin until the fall of 1990, well after the state 

legislature has convened in special session on February 27, 1990 

to consider judicial reform. 

CONCLUSION   

For the above-stated reasons, this Court should affirm 

in all respects the district court's findings of fact and 

conclusions of law and the interim remedy, dissolve the stay 

interposed by this Court and direct that interim elections go 

forward as directed by the district court in its January 11, 

1990 order regarding remedy. 

23 

 



    
Respectfully submitted, 

MULLINAX, WELLS, BAAB 

& CLOUTMAN, P.C. 

3301 Elm Street 
Dallas, Texas 

(214) AB35-9222 
75226-1637              

Edward B. Cloutman, III 

E. BRICE CUNNINGHAM 

Attorney at Law 

777 South R.L. Thornton Frwy. 
Suite 121 
Dallas, Texas 75203 
(214) 428-3793 

CERTIFICATE OF SERVICE 
  

I hereby certify that a true and correct copy of the 

foregoing instrument has been served upon counsel of record, by 

placing same in the United States Mail, postage prepaid, on this 

  the 27 day of February, 1990: 

Mr. Renea Hicks 
Ms. Mary F. Keller 
Mr. Javier Guajardo 
Special Asst. Attorney General 
P.O. Box 12548 
Capitol Station 
Austin, Texas 78711-2548 

24 

 



    
Mr. William L. Garrett 
Ms. Brenda Hull Thompson 
Carrett, Thompson & Chang, P.C. 
8300 Douglas, Suite 800 
Dallas, Texas 75225 

Mr. Rolando L. Rios 
Southwest Voter Registration 

& Education Project 
201 N. St. Mary's 
Suite 521 
San Antonio, Texas 78205 

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

Mr. E. Brice Cunningham 
Attorney at Law 
777 South R.L. Thornton Frwy. 
Suite 121 
Dallas, Texas 75203 

Ms. Sherrilyn A. Ifill 
N.A.A.C.P. Legal Defense 

& Educational Fund, Inc. 
69 Hudson St., 16th Floor 

New York, New York 10013 

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

Mr. J. Eugene Clements 
Mr. John E. O'Neill 
Porter & Clements 

700 Louisiana, Suite 3500 
Houston, Texas 77002-2730 

25 

 



    
Mr. Robert HE. Mow, Jr. 

Mr. David C. Godbey 
Mr. Bobby M. Rubarts 
Ms. Esther R. Rosenblum 

Hughes & Luce 
2800 Momentum Place 

1717 Main Street 
Dallas, Texas 75201 

Mr. Jim Boyle 
Law Offices of Jim Boyle 
801 Congress Avenue 
Suie 250 
Austin, Texas 78701 

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

& Wheatley, Inc. 
711 Navarro, Sixth Floor 
San Antonio, Texas 78205 

Mr. John L. Hill, Jr. 

Mr. Andy Taylor 
Liddell, Sapp, Zivley, Hill 

& LaBoon 
3300 Texas Commerce Tower 
Houston, Texas 77002     

Edward B. Cloutman, III 

26