Motion to Alter the Order of January 2, 1990; Memorandum in Support; Proposed Order

    THE ATTORNEY 42EMNERAIL 
OF TEXAS 

JIM NMATTOX 

ATTORNEY GENERAL 

January 4, 1989 

HAND-DELIVERED 
  

United States District Clerk 

200 East Wall, Room 316 

Federal Building 
Midland, Texas 79701 

Re: LULAC Council #4434 v. Mattox, No. MO-88-CA-154 

Dear Sir or Madam: 

Enclosed for filing in the above-referenced matter are the original 

and one copy of a Motion to Alter the Order of January 2, 1990, along with 
a supporting memorandum and a proposed Order. 

Sincerely, 

: a) 

Renea Hicks 

Special Assistant Attorney General 

P.O. Box 12548, Capitol Station 

Austin, Texas 78711-2548 
(512) 463-2085 

i Counsel of Record 

312/163-2100 SUPREME COURT BUILDING AUSTIN, TEXANS 78711-23518  



  

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UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF TEXAS 

‘ MIDLAND/ODESSA DIVISION 

LULAC COUNCIL #4434, et al., 

Plaintiffs, 

Civil Action No. 

MO-88-CA-154 

VS. 

JIM MATTOX, et al., 

Defendants. CO
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MOTION TO ALTER THE ORDER OF JANUARY 2, 1990 

Pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, 

Attorney General Jim Mattox on behalf of the State of Texas moves the 

Court to act with expedition and alter the judgment expressed in the Order: 

of January 2, 1990 (January 2nd Order), as follows: 

1. The January 2nd Order should be altered insofar as it requires 

the 1990 elections for state district judge to be non-partisan. The Court 

instead should require that the 1990 elections be conducted consistently 

with existing state law, which dictates that candidates for state district 

judge be nominated in party primaries and elected in general elections. 

Accordingly, paragraphs 4, 6, and 7 on pages 6-7 of the January 2nd Order 

should be deleted, paragraphs 8-10 be renumbered as paragraphs 6-8, and 

the following provision be substituted as a new paragraph 4: 

Elections shall otherwise be conducted in 

accordance with applicable state law, except as 

otherwise provided herein. 

2. Ordering non-partisan judicial elections is beyond the Court's 

equitable discretion because: (a) it is wholly unrelated to any issue before 

the Court; (b) it directly contravenes century-old state law and the policy 

preference of a majority of the Texas Legislature as expressed within the 

 



  

S ® . 

~ 

last two weeks; (c) it has no connection to the violations found by the Court 

in its Memorandum Opinion and Order of November 8, 1989, as modified; 

(d) without any corresponding benefit to the plaintiffs (who opposed it) 

and without any other balancing of the equities, it imposes an 

unreasonably large financial (approximately 2-3 million dollars, according 

to recent estimates from the Secretary of State's Office) and administrative 

burden on the State of Texas; and (e) it is unsupported by any evidence. 

In short, the law and facts relevant to the issues in this case offer no basis 

for the Court to ignore the State Legislature and compel the fundamental 

change in state election law that is embodied in the Court's directive to 

conduct non-partisan elections. 

3. The Attorney General urges the Court to act promptly on this. 

motion. State law (1 Tex. Adm. Code § 81.113) and practical necessity 

dictate that the list of candidates to appear on the party primary ballots in 

March be completed no later than January 12, 1990, ten days from this 

Court's remedial order and seven days from the filing of this motion. 

Based upon the foregoing matters, the Attorney General of Texas 

requests the Court to grant this motion. 

Respectfully submitted, 

iam Mads 
JIM MATTOX 
Attorney General of Texas 

  

P. O. Box 12548, Capitol Station 

Austin, Texas 78711-2548 

(512) 463-2191 

  

* 

Part III of the memorandum accompanying this motion notes an alternative method and set of dates 
which would lessen but still not eliminate some of these administrative and financial burdens. It is not 
being recommended, just highlighted for the Court. 

 



  

CERTIFICATE OF SERVICE 

I certify that on this 4th day of January, 1990, I sent a copy of the 
foregoing document by overnight courier to each of the following: William 
L. Garrett, Garrett, Thompson & Chang, 8300 Douglas, Suite 800, Dallas, 

Texas 75225; Rolando Rios, Southwest Voter Registration & Education 

Project, 201 N. St. Mary's, Suite 521, San Antonio, Texas 78205; Sherrilyn 
A. Ifill, NAACP Legal Defense and Educational Fund, Inc., 99 Hudson Street, 

16th Floor, New York, New York 10013; Gabrielle K. McDonald, 301 

Congress Avenue, Suite 2050, Austin, Texas 78701; Edward B. Cloutman, 

III, Mullinax, Wells, Baab & Cloutman, P.C., 3301 Elm Street, Dallas, Texas 

75226-1637; J. Eugene Clements, Porter & Clements, 700 Louisiana, Suite 

3500, Houston, Texas 77002-2730; and Robert H. Mow, Jr., Hughes & Luce, 

2800 Momentum Place, 1717 Main Street, Dallas, Texas 75201. 

be Hele icks 
  

 



UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF TEXAS 
MIDLAND /ODESSA DIVISION 

LULAC COUNCIL #4434, et al., 
Plaintiffs, 

VS. Civil Action No. 
MO-88-CA-154 

JIM MATTOX, et al., 
Defendants. 

MEMORANDUM SUPPORTING MOTION TO ALTER THE ORDER OF 
JANUARY 2, 1990 

Without conducting an evidentiary hearing and in direct 

contravention of state law and the recently-expressed preference of a 

majority of the Texas Legislature, the Court has directed as part of its 

interim remedial order of January 2, 1990, that one hundred fifteen 

state district judges in nine Texas counties be selected through non- 

partisan elections. Straightforwardly stated, this part of the Court's 

order is not a judicial remedy; it is judicial reform. The remedial garb 

cannot disguise its reform character. It cannot be squared with the 

Court's determination that "[p]arty affiliation is simply irrelevant under 

the controlling law." Finding of Fact No. 43, Memorandum Opinion 

and Order of November 8, 1989, as modified, at p. 80. 

I. GUIDING PRINCIPLES 
  

The Court has given no explanation based in law or facts relevant 

to this case for rejecting century-old state election law. It has made 

no factual findings on the issue; it has expressed no legal conclusions 

on it; and it has conducted no evidentiary hearing on it. It simply has 

announced it. However broad the Court's equitable powers may be, 

they neither encompass nor justify what the Court has done.  



  

While this forum is indisputably a proper one to resolve whether 

the rights of minority voters are being protected, it is just as 

indisputably the wrong one for debating whether state judges should 

be elected in non-partisan elections. The Texas Legislature and the 

people of Texas, not this Court, are the proper judges of that debate. 

It is before them that the debate must be conducted and by them that 

the contentious issue must be resolved. The laudable objectives of the 

Voting Rights Act leaves that part of our federal system unperturbed. 

It has not changed the balance so much that all state election policy 

choices may be made by the federal courts. If supported by the facts, 

policy choices that disenfranchise minority voters may be overriden; 

however, some choices remain for the states. Here, the Court not only 

exercised a policy choice the state alone is entitled to make; in doing 

so, it has adopted a policy widely recognized as harmful to minority 

voters because of its disproportionately depressive effect on minority 

voter turnout. Enhancement of minority voter rights pursuant to the 

dictates of the Voting Rights Act provides no legal justification for 

diminishing those same rights pursuant to the dictates of some 

unspecified law or power.! 

The Court should resist an all-too-understandable inclination to 

cut the Gordian knot of this difficult debate while wielding its judicial 

sword at other aspects of state election law appropriately within its 

jurisdictional arc. Instead, it is obligated to heed the Fifth Circuit's 

  

1 This legal proposition is valid even if, in the short term, the enhancement 
exceeds to some degree the diminishment. The accuracy of such speculation is 
unaddressed by the evidence in this case. Even if it had been, however, the 
diminishment is legally baseless because it is unaccompanied by any legal principle. 

2. 

 



  

"staunch admonition" in recent voting rights decision involving 

elected state judges: 

[A] federal court should jealously guard and 
sparingly use its awesome powers to ignore or 

brush aside long-standing state constitutional 
provisions, statutes, and practices. There can 
be no doubt that . . . federal courts do and 
indeed must have this authority in our unique 
form of government. It is the use of this power 
that must be maintained in the balance, a 
balance which is more delicate than usual 
when a state's judicial process is involved. 

Chisom v. Roemer, 853 F.2d 1186, 1189 (5th Cir. 1988); see also 

Cook v. Luckett, 735 F.2d 912, 918 (5th Cir. 1984) (in remedying vote 

dilution, "federal court must honor state policies to the greatest extent 

possible when choosing among available plans or fashioning its own"; 

emphasis added). 

Guided by these governing principles and for the more practical 

reasons set forth below,2 the Court should re-tailor the interim 

remedy to fit the violation it has found and grant the Motion to Alter 

the Order of January 2, 1990. 

II. PRACTICAL REASONS 
  

A Financial Burden 
  

The Secretary of State's Office estimates that conducting 1990 

non-partisan elections on the May and June dates ordered by the 

Court will cost between two and three million dollars more than 

conducting elections under the system of party primary and general 

elections governing Texas district judge races for over a century. 

While such a large financial imposition might not constitute a barrier 

  

" See also Statement Concerning Non-Partisan Elections As An Aspect Of An 
Interim Remedy, filed December 29, 1989. 

 



  

to equitable relief directly related to violations of the Voting Rights 

Act, it is a legitimate barrier to the imposition of relief unrelated to 

the violations determined by the Court on November 8th. Cf. 

Westwego Citizens for Better Government v. City of Westwego, 872 

F.2d 1201, 1210-11 (5th Cir. 1989) (categorizing costliness of 

reorganization in voting rights cases as irrelevant factor in liability 

finding, although potentially relevant in crafting a remedy).3 

B. Administrative Burdens and Associated Uncertainties 
  

There are massive gaps between the Court's January 2nd 

directive to conduct non-partisan judicial elections in 1990 and the 

statutory framework set forth in the Texas Election Code for 

conducting elections. Set forth below are some of the crucial gaps 

between the provisions of the Election Code, which was not enacted in 

contemplation of non-partisan elections for state officials, and the 

dictates of the Court, which provides no direction on how to conduct 

such elections. 

The order fails to designate the officials responsible for 

conducting the election, and the Election Code does not answer the 

questions of who is to give notice of this election, to order election 

supplies, to print the ballots, to appoint the election judges and clerks 

for the polling places, to conduct absentee voting, and to canvass the 

election returns. 

  

3 There is an additional financial considerations apparently not contemplated in 
the Court's order. State statutes make no provision for the State to pay for the Court- 
ordered election. The counties likewise lack the statutory authority to do so. Who is to 
pay is a question that state law leaves unanswered. The order also fails to specify: 
whether the candidates must pay a filing fee; what the fee is; who is to receive the fee; or 
whether a petition in lieu of a filing fee is permitted. The Election Code does not answer 
any of these questions. 

 



  

The order does not recognize that county-owned voting 

equipment is traditionally used in the primary elections and by other 

political subdivisions conducting elections on uniform election dates. 

This court-ordered May and June election will severely interrupt the 

state's other elections if the county retains its equipment for the 

court-ordered election and refuses to provide it to the political parties 

and other political subdivisions. 

The order does not prescribe a method for determining the 

order in which opposing candidates names will appear on the non- 

partisan ballot for the judicial races. 

The order does not specify which election precincts are to be 

used in he county nor does it address the permissibility of 

consolidating election precincts for this election. 

The order is silent on the period for absentee voting. The 

Election Code gives no guidance on the absentee voting period for the 

court-ordered runoff. 

The order does not address the permissibility of write-in 

candidates in the election or whether a declaration of intent to run as 

a write-in is required. 

The order does not discuss whether candidates may withdraw 

from the election or establish a deadline for such withdrawal. 

The order does not name the authority responsible for 

canvassing the returns of the election. It does not address whether 

the canvass is conducted locally only or whether a state-level canvass 

is required.4 
  

4 The order creates yet another anomaly, apparently uncontemplated by the 
Court. There is a possibility (indeed a likelihood) that additional vacancies will occur 
in the office of district judge in the nine affected counties. Such vacancies will be filled 

5. 

 



  

The order does not specify the recount procedures to be 

followed in the election. The failure to specify the canvassing 

authority renders the Election Code provisions useless for a recount of 

the election. 

The transition from the current electoral system for state offices 

to the non-partisan system mandated by the Court cannot be made 

under the existing combination of the Texas Election Code and the 

Court's January 2nd order. The Court will have to amend its order 

either to direct additional changes to the state election process or to 

permit use of the existing state process of party primaries and general 

elections. The latter course clearly is more consistent with the 

Court's rulings, the Voting Rights Act, and fundamental principles of 

federalism. Within the confines of the violations found by the Court, it 

would accomplish two laudable goals: minimization of disruption of 

the state electoral process; and enhancement of the interim relief 

afforded the plaintiffs. 

III. CROSS-FILING ALTERNATIVE 

There is an alternative to the court-ordered plan which, while it 

still presents substantial difficulties, alleviates to some extent the 

administrative and financial burdens discussed in Part II, above. It is 

not being recommended to the Court, merely noted for its 

consideration. 

Earlier incarnations of state election law permitted "cross-filing" 

for elective offices. The Court might consider a version of cross-filing 

to be appropriate in the matter now before it. Candidates for state 

  

in accordance with the Election Code, which means that those unexpired terms will be 
filled in countywide partisan elections. 

 



district judge could file with either or both political parties to appear 

on the March primary ballot. Filing would be accompanied either by a 

petition with the appropriate number of signatures or by a filing fee 

which would be split between the two parties. Candidates then would 

appear on both parties ballots in the March primary. Any runoff then 

would occur in the November general election. 

CONCLUSION 
  

The Court's directive to conduct non-partisan district judge 

elections in 1990 unduly and unnecessarily intrudes into a matter 

lying within the state legislature's domain. Through his submittal of a 

joint motion urging adoption of the proposed interim plan, the 

Attorney General on behalf of the State of Texas harmonized as much 

as possible the Court's November 8th mandate to revise the state 

electoral system to protect minority voting rights with long- 

established state policies expressed in fundamental state law. The 

Attorney General urges the Court to re-establish that harmony by 

receding from its order that non-partisan elections be part of the 

interim remedy. 

 



  

Respectfully submitted, 

RII 
JIM MATTOX 
Attorney General of Texas 

  

P. O. Box 12548, Capitol Station 
Austin, Texas 78711-2548 
(512) 463-2191 

CERTIFICATE OF SERVICE 

I certify that on this 4th day of January, 1990, I sent a copy of 
the foregoing document by overnight courier to each of the following: 
William L. Garrett, Garrett, Thompson & Chang, 8300 Douglas, Suite 
800, Dallas, Texas 75225; Rolando Rios, Southwest Voter Registration 
& Education Project, 201 N. St. Mary's, Suite 521, San Antonio, Texas 
78205; Sherrilyn A. Ifill, NAACP Legal Defense and Educational Fund, 
Inc., 99 Hudson Street, 16th Floor, New York, New York 10013; 
Gabrielle K. McDonald, 301 Congress Avenue, Suite 2050, Austin, 
Texas 78701; Edward B. Cloutman, III, Mullinax, Wells, Baab & 
Cloutman, P.C., 3301 Elm Street, Dallas, Texas 75226-1637; J. Eugene 
Clements, Porter & Clements, 700 Louisiana, Suite 3500, Houston, 
Texas 77002-2730; and Robert H. Mow, Jr., Hughes & Luce, 2800 
Momentum Place, 1717 Main Street, Dallas, Texas 75201. 

ea eh. 
  

Rened Hicks 

 



  

UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF TEXAS 
MIDLAND/ODESSA DIVISION 

LULAC COUNCIL #4434, et al., § 

Plaintiffs, § 

8 
VS. § Civil Action No. 

§ MO-88-CA-154 

JIM MATTOX, et al., § 

Defendants. § 

ORDER 

On this day came before the Court the Attorney General of Texas's 

Motion to Alter the Order of January 2, 1990. After giving due 

consideration to the matters raised therein and in other filings in 

connection with it, the Court is of the opinion that it is wollifounded. 

Accordingly, it is hereby 

ORDERED that the Motion to Alter the Order of January 2, 1990, is 

GRANTED. It is FURTHER ORDERED chat the Court's Order of January 2, 

1990, is altered as follows: Paragraphs 4, 6, and 7 are deleted. Paragraphs 

3, 9, and. 10 are renumbered to become “paragraphs 6, 7, and §&, 

respectively. The following provision is added as a new paragraph 4: 

4. Elections shall otherwise be conducted in 

accordance with applicable state law, except as 
otherwise provided herein. 

SIGNED and ENTERED this ___ day of January, 1990. 

  

LUCIUS D. BUNTON 
Chief Judge 

 



  

JIM 

  

OF TEXAS 

MATTOX 

ATTORNEY GENERAL January 4, 1950 

VIA TELECOPY 

Gilbert Ganucheau 

ATT'N: Eileen Boudin 

Clerk, Fifth Circuit 

600 Camp Street 
New Orleans, Louisiana 70130 

Re: LULAC v. Mattox, No. 90-8014 

Dear Ms. Boudin: 

An Emergency Motion for Stay filed by Judge Entz is pending in 

the above-referenced matter. I represent the State Defendants 
before the district court and thought the material which I am 

* forwarding to you today would be useful to the Court while it 
« considers the motion. The material is a copy of a Motion to Alter the 
Order of January. 2, 1990, and. a supporting memorandum. These 

documents were filed today with the district court, and copies have 

been forwarded by overnight courier to counsel of record in the case. 

Sincerely, 

co 

Renea Hicks 2 

Special Assistant Attorney General 

P.O. Box 12548, Capitol Station 
Austin, Texas 78711-2548 
(512) 463-2085 

CC: Counsel of Record 

512/463-2100 SUPREME COURT BUILDING AUSTIN, TEXAS 78711-2548