Plaintiff-Appellees and Dallas-Plaintiff-Intervenor-Appellees Opposition to Requests for Stay

    I 
f 

% 

| 

: LAW OFFICES OF 

TEXAS RURAL LEGAL AID. INC. 
201 NORTH ST. MARY'S ST.. SUITE 600 

SAN ANTONIO. TEXAS 78205 
(512) 222-2478 

  

January 10, 1990 

Gilbert F. Ganacheau, Clerk 
United States Court of Appeals 
for the Fifth Circuit 
600 Camp Street 
New Orleans, Louisiana 70130 

Re: LULAC et al v Mattox et al 
No. 90-8014 
  

Dear Mr. Ganacheau: 

I am enclosing an original and four copies of Plaintiff-Appellees 
and Dallas-Plaintiff-intervenor-appellees’ Opposition to Requests 
for Stay and attachments. Could you kindly file them at your 
convenience and bring them to the attention of the panel that will 
hear this emergency matter? 

In addition, I am enclosing a stamped return envelope. Could you 
kindly mark one of the copies with your filemark and return it to 
me? 

I am serving all counsel of record with a copy of this Opposition 
but not with the attachments, which are all matters of record in 
the lower court. 

In advance, thank you for your attention to this matter. 

Sincerely yours, 

# Jeg JAa— / Le Lo hy Cy 

/ Sisan Finkelstein 
Staff Attorney 

federal express 

xc: all counsel of record (federal express) 

 



  

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

LULAC, et al., 

Plaintiff-Appellees, 

NO. 90-8014 VS. 

MATTOX, et al., 

* 
% 

% 
% 

* 
% 

* 
* 

* 

Defendant-Appellants. 

PLAINTIFF-APPELLEES AND DALLAS-PLAINTIFF-INTERVENOR-APPEIILEES’ 
OPPOSITION TO REQUESTS FOR STAY 

TO THE HONORABLE COURT OF APPEALS: 

1. Plaintiff-appellees and Dallas-plaintiff-intervenor- 

appellees (hereinafter Appellees) oppose the Requests for Stay 

filed by Bayoud, Entz and Wood and would respectfully show the 

Court as follows': 

2. Appellees rely on the following exhibits to this 

Response: 

A. Lower court’s Order of October 27, 1988, 

which delayed proceedings in this case. 

B. Lower cour-t’s Order of November 25, 1988, 

which reset this case for trial. 

C. Lower court's Order of February 28, 1989, 

which delayed proceedings in this case. 

D- Lower court’s Order of June 6, 1989, which 

  

this is the second interlocutory appeal in this case. LULAC 
v_Clements, 884 F.2d 185 (5th Cir. 1989). 
  

1 

 



  

delayed proceedings in this case. 

E. Lower court’s Order of November 8, 1989, 

which found that the existing system of 

electing district court judges in nine counties 

violated Section 2 of the Voting Rights Act. 

F. Lower court’s Order of November 27, 1989, 

which made clerical corrections to the Order 

of November 8. 

G. Lower court’s Order of December 26, 1989, 

which made clerical corrections to the Order 

of November 8. 

H. Lower court’s Order of December 28, 1989, 

which made clerical corrections to the Order 

of November 8. 

I. Lower court’s Order of March 6, 1989, 

which allows Defendant-intervenor-appellant 

Wood to intervene as an individual only. 

J» Wood's Motion to Intervene, where she 

admits that her current term does not end until 

1992. 

K. Lower court’s Order of January 2, 1990, 

which implements a remedy for the 1990 election 

year. 

L. Legislative proposals for districting for 

district courts, which received support in the 

House and Senate. 

 



M. Letter of January 4, 1990 from the 

Attorney General concerning the State’s Motion 

to Alter the January 2, 1990 interim plan. 

BRIEF HISTORY OF THE CASE 

3. This case addresses the system of electing district court 

judges in nine counties in Texas: Harris, Dallas, Tarrant, Bexar, 

Travis, Jefferson, Lubbock, Midland and Ector. Altogether, these 

nine counties elect two hundred seventy two district court judges. 

Of these, one hundred fifteen are up for election in 1990. 

4. The challenged system of electing district court judges 

is at large within geographic units that contain an entire county 

or a group of entire counties. Further, the system includes the 

equivalent of numbered posts. Finally, in the partisan primaries, 

candidates must win a majority of the votes or face a primary run 

off election. The plaintiffs and plaintiff-intervenors claimed, 

and the lower court found, that the existing system violates 

Section 2 of the Voting Rights Act because it dilutes or minimizes 

the voting strength of Hispanics, Blacks and/or the combined group 

of Blacks and Hispanics. 

Se Appellees filed this case on July 11, 1988. As requested 

by Defendant-appellants, the Court stayed this case on October 17, 

1988 while the Supreme Court reviewed a petition for certiorari in 
  

Chisom v Roemer concerning whether or not the Voting Rights Act 
  

applies to the judiciary. The Supreme Court denied certiorari on 
  

November 14, 1988; the Court lifted the stay on November 25, 1988 

and discovery proceeded. In that same Order, the Court set this  



case for trial on April 17, 1989. On February 28, 1989, the Court 

reset trial for July 11, 1989, however, to allow the reqular 

session of the Texas legislature to address the issues posed by 

this litigation. The Court then again reset trial in this case for 

September 18, 19839 upon the request of the Defendant-appellees, 

and particularly upon the request of Defendant-appellee Chief 

Justice Phillips. Order of June 6, 1989. The Court finally tried 

this case during the week of September 18, 1989 in Midland. 

Exhibits A-D. 

6. On November 8, 1989, the Court issued a ninety four page 

decision on the merits of this case’. Exhibit E. In great detail, 

the decision explains why the present system of electing district 

court judges in the nine counties at issue violates Section 2 of 

the Voting Rights Act. As the Court notes, however, the Texas 

legislature was about to go into special session on November 14, 

1989’. November 8 Order at 92. To give the legislature its due 

opportunity to revamp the system for electing district court 

judges, the November 8, 1989 Order merely declares that the 

existing system does not pass muster. The decision specifically 

declines to issue injunctive relief in deference to the State’s 

legitimate interest in resolving this issue without unnecessary 

  

This Order has been corrected by the court’s orders of 
November 27, 1989, December 26, 1989 and December 28, 1989. 
Exhibits F-H. 

‘Actually, the legislature had already been in an intervening 
special session, which began on June 20, 1989 and ended on July 19, 
1989.  



  

intrusion by the federal judiciary. Finally, the opinion states 

that if the legislature did not act, then the Court would consider 

remedial proposals. 

7. The November-December special session of the Texas 

legislature is over and adjourned. Unfortunately, the legislature 

did not act on the issues that this case presents. In fact, the 

Governor did not even "submit the question of judicial 

redistricting to the Special Session.‘" Order of January 2 at 3. 

8. On December 11, 1989, the Court convened a meeting of 

counsel, parties and Texas Governor Clements, at the Governor's 

request. During the course of the meeting, the Governor explained 

that the legislature is unlikely to resolve this matter before the 

primary elections on March 13, 1989°. Further, the Governor also 

stated that he would probably veto a plan that included single or 

multi-member districts if the legislature ever drafted one. Also, 

the Governor said that although he would happily convene a special 

session of the legislature to discuss this issue, he probably would 

not do so until after March. This was of little help because the 

primaries were scheduled for that month. 

9% On January 2, 1990, the court below denied the Motions 

for Stay of the November 8 Order filed by the various Defendants 

  

‘When the legislature is in special session, it only has 
authority to address issues that the Governor presents to it. 

This is despite the fact that redistricting bills for the 
district courts were voted out of committees of both houses of the 
Texas legislature with the support of the minority representatives 
and senators. In each house, these proposed bills had the support 
of the majority of the members. Exhibit L. 

5 

 



  

and Defendant-intervenors. id. at 8. Since the deadline for 

filing for candidacy was January 2 and since elections are 

"imminent," the Court also issued a limited interim order for 

relief in the nine counties at issue for the 1990 election year 

only. Id. at 4. The lower court waited until the last possible 

moment before granting this relief. It had given the legislature 

every opportunity to remedy this problem. Surely, the lower court 

waited for the "appropriate time, [when] it became necessary ... 

[to]... fashion whatever remedy the law, equity and justice 

requires." Chisom v Roemer, 853 F.2d 1186, 1192 (5th Cir. 
  

1989) (Chisom II). 
  

JURISDICTIONAL ISSUES: STANDING 

10. Defendant-intervenor-appellant Wood does not have 

standing to request a stay of the lower court’s order of January 

2, 1990 because the Order does not affect her in her status as an 

individual in this case. When the lower court permitted her to 

intervene as a defendant, the court clearly allowed her to 

intervene in her individual capacity only. Exhibit I at 1°. 

11. Wood does not seek election during the 1990 election 

cycle. Her term expires in 1992. Exhibit J at 2 (Wood admits that 

she achieved a four year term of office in 1988. In other words, 

her current term does not end until 1992.) 

  

®*This Court has found that district court judges do not have 
any place in this litigation in their official capacities; if they 
have any standing at all, it is only as individuals. LULAC, 853 
F.2d 185. "As government officials, [district court judges] have 
no legally protectible interest in redistricting." Id. at 188. 

6 

 



  

12. Wood seeks a stay to prevent the interim order, Exhibit 

K, from going into effect. As an individual, Wood does not have 

standing to appeal the validity of the lower court’s interim plan’. 

The interim plan "applies only to the 1990 State District Court 

Judicial Elections in the nine target counties at issue in this 

case." Exhibit K at 7-8. Since Wood does not seek election in 

1990, she does not have "such a personal stake in the outcome of 

the controversy" about the interim plan to have standing to pursue 

this stay. Baker v Carr, 369 U.S. 186, 204 (1962). 
  

13. Further, the requests for stays filed by Defendant- 

intervenor-appellants Entz and Wood are far broader than is 

permissible. Entz and Wood have standing only to challenge the 

election system in the counties where they reside and preside, ie, 

Dallas and Harris, respectively. They do not have a personal stake 

sufficient to establish standing, Id., in the election systems in 

counties where they have no ties. 

14. As argued in Texas Attorney General's Motion to Strike, 

purported-appellant Secretary of State Bayoud also has no 

independent place in this Court. The Secretary of State is in this 

lawsuit only in an official capacity’. The Attorney General of the 

State of Texas represents the Office of the Secretary of State. 

The Secretary, and his independent counsel, have no voice here. 

  

"The Attorney General, who has standing to pursue this stay, 
has not done so. 

®Bayoud succeeds Rains, who was sued in his individual 
capacity. Bayoud has not moved to change this status. 

” 

 



LEGAL STANDARDS FOR STAY 

15. To justify their Requests for Stay, Wood, Entz and Bayoud 

must show that 1) they are likely to succeed on the merits, 2) they 

will suffer irreparable injury absent a stay, 3) the grant of a 

stay would not substantially harm other parties and 4) the grant 

of a stay will serve the public interest. United States v Baylor 
  

University Medical Center, 711 F.2d 38 (5th Cir. 1983); Ruiz Vv 
  

Estelle, 650 F.2d 555 (5th Cir. 1981) (Ruiz I); O'Bryan v Estelle, 
  

691 F.2d 706 (5th Cir. 1982). Movants have the burden of proof. 

Ruiz v Estelle, 666 F.2d 854 (5th Cir. 1982), cert. denied, 460 
    

U.S. 1042 (1983) (Ruiz II). 

16. On appeal, the standard of review is whether the "trial 

court abused its sound discretion in denying the stay." Beverly 

v United States, 468 F.2d 732, 740 n. 13 (5th Cir. 1972). Here, 
  

movants can make no such showing. 

MERITS 

November 8, 1989 Order 

17. Movants cannot succeed on any of the prongs of this 

analysis. The lower court’s Order of November 8, 1989 clearly uses 

the intensely local analysis envisioned by Thornburg v Gingles, 478 
  

U.S. 30 (1986), the only Supreme Court interpretation of Section 

2 of the Voting Rights Act.’ 

  

’Entz and Bayoud’s’ requests for stay do not analyze this case 
even though it is the leading interpretation of the meaning of 
Section 2.  



18. Defendant-intervenor-appellant Entz claims that the lower 

Court’s November 8 Order is incorrect because it does not properly 

consider the implications of partisan politics on races for 

judicial office. He contends that Congress intended Section 2 of 

the Voting Rights Act to incorporate the reasoning and analysis of 

Whitcomb v Chavis, 403 U.S. 124 (1971). He asserts that there are 
  

no racial/ethnic differences in voting in judicial elections. 

Instead, he claims that partisan politics are the key to 

understanding contests for judicial seats. 

19. Certainly, partisan politics are a factor in judicial 

elections in Texas. Nonetheless, they do not dispose of this case. 

The lower court found, based upon the analyses of Drs. Brischetto, 

Engstrom, Weiser, and even Taebel, the Defendants’ expert, that 

in each county at issue racial polarization exists in judicial 

elections. Also, the court found that minorities are politically 

cohesive in judicial elections in each county. Finally, the court 

found that the Anglo bloc vote generally is strong enough to defeat 

the choice of the minority community in each county in judicial 

elections. This is what the Supreme Court and this Circuit 

require. 

20. The lower court relied on Gingles when it determined that 

partisan issues are irrelevant to the Section 2 inquiry. November 

8, 1989 Order at 79-80, 89. Gingles is particularly instructive 

on this issue. It considers the application of Section 2 of the 

Voting Rights Act to the partisan election system for the North 

Carolina legislature. See, eg, Gingles Appendix A, (results for 
   



both primary and general elections). Even though partisan politics 

are a part of the North Carolina system, the Court excluded 

partisan issues from its analysis. Actually, the Court 

specifically refused to consider party as an issue in a Section 2 

dilution case. When faced with the argument that party affiliation 

is a relevant factor, the Supreme Court simply said "we disagree." 

Gingles, 478 U.S. at 62. 

21. Further, according to this Court, Entz’ analysis is not 

correct. "Clearly, Zimmer and White inspired both the language of 

the statute and the legislative explanation of its meaning .... 

Congress has made clear its understanding that a court under 

section 2 should apply White and Zimmer." Jones v City of Lubbock, 
  

727 F.2d 364, 379 (5th Cir. 1984). Further, Congress intended that 

courts rely upon the objective factors listed in subsection (b) of 

Section 2. Id. at 377-8. Party politics is noticeably lacking in 

that list of factors. Finally, Jones notes that courts should rely 

on the "totality of circumstances as set out in White against 

Regester and the case law under it." Id. at 380 n. 11. In other 

words, courts are to rely on White, 412 U.S. 755 (1973), and the 

cases that follow and interpret it. Clearly Whitcomb, which was 
  

decided on June 7, 1971, does not follow and interpret White, which 

was not decided until June 18, 1973.7% 

  

%9f course, both White and Thornburg v _Gingles, 478 U.S. 30 
(1986) consider partisan election schemes. The Supreme Court was 
not moved by partisan issues in either case. 

  

10  



  

22. Further, Movants’ reliance on party politics as a defense 

overlooks a reality in Texas politics as established by the 

evidence at trial. Party has racial and ethnic implications in the 

State. Although there are exceptions, according to the evidence 

at trial, Blacks and Hispanics tend to feel more at home in the 

Democratic Party than in the Republican Party. Evidence also shows 

that voters generally know that if they vote Democratic, rather 

than Republican, they will be voting for a minority candidate or 

for a candidate who is sympathetic to concerns of the minority 

community. Finally, there is evidence that the Republican Party 

is not the Party of minorities in Texas. 

23. Entz also claims that the lower court’s November 8 Order 

is incorrect because it does not comply with the reasoning of 

Monroe v_ City of Woodville, 881 F.2d 1327 (5th Cir. 1989). He 
  

claims that Monroe means that minority voters are not cohesive 

unless they vote together for minority candidates. This extends 

Monroe beyond its limits. Actually, Monroe states that a minority 

group's failure to vote for only one minority candidate, when there 

is a choice among minority candidates, may be evidence that 

cohesiveness does not exist. There is little evidence that this 

situation occurs any more than rarely. 

24. Wood makes several claims about the lower court’s 

November 8 Order. First, she asserts that the lower court erred 

  

"actually, the lower court correctly noted that Monroe 
requires review of the totality of the circumstances to determine 
if minorities’ voting rights have been violated. November 8 Order 

11 

 



  

by failing to make findings on each and every one of the Senate, 

or Zimmer, factors in Harris County. As an initial matter, this 

reads the lower court’s order incorrectly. The November 8 Order 

makes findings about each Zimmer factor in Harris County. The 

lower court found that five of the seven significant Zimmer factors 

exist in each of the counties at issue; six of the seven factors 

exist in Dallas County; 

1) History of official discrimination exists 

in each of the nine counties. November 8 Order 

at 69-70. 

2) Polarization along racial lines exists in 

each of the nine counties. Id. at 22 et seq. 

3) Enhancing devices exist. Id. at 71. 

4) No slating exists in Dallas County; it was 

not proven in the other eight counties. Id. 

at 72. 

5) There are present effects of past 

discrimination against minorities in each of 

the nine counties. Id. at 69. 

6) Racial appeals occur in campaigns in 

Dallas County; they were not proven in the 

other counties. Id. at 72-3. 

7) Minority candidates have had a low rate 

of success in Harris, Dallas, Tarrant, Bexar 

and Travis Counties. In the remaining 

counties, they have found the system to be too 

12 

 



hostile to permit their candidacies. Id. at 

73-4. 

The lower court found no evidence of responsiveness, Id. at 75, or 

tenuousness, Id. at 75-7, but these two factors are less important 

than the other seven Zimmer factors. Gingles, 478 U.S. at 45. 

25. Further, Wood's concern about the Zimmer factors reflects 

an incorrect understanding of the legislative intent behind the 

incorporation of those factors into Section 2 of the Voting Rights 

Act. Although Congress agreed that the Senate factors may be 

relevant, "this list of factors is neither comprehensive nor 

exclusive.... ‘there is no requirement that any particular number 

of factors be proved’." Gingles, 478 U.S. at 45 (citations 

omitted). 

26. This Court has already decided several of the issues of 

law that Wood asserts are contested. First, she claims that the 

Voting Rights Act does not and cannot constitutionally apply to the 

judiciary. This is incorrect. Chisom v Roemer, 839 F.2d 1056 (5th 
  

Cir. 1988) (subsequent history omitted). Further, Wood claims 

that the one person-one vote rule applies to the judiciary, when 

it does not. Id. at 1061. Also, she claims that it is relevant to 

  

Actually, every court but one that has addressed this issue 
has decided that Congress intended that Section 2 of the Voting 
Rights Act apply to the judiciary. Mallory v Eyrich, 839 F.2d 
275 (6th Cir. 1988); Williams v State Board of Elections, 696 F. 
Supp. 1563, 1565-6 (N.D. Ill. 1988); Martin v Allain, 658 F. Supp. 
1183, 1200 (S.D. Miss. 1987) (subsequent history omitted). The only 
court that did not reach this conclusion was reversed on appeal. 
Mallory v Eyrich, 666 F.Supp. 1060 (S.D. Ohio 1987), rev'd 839 F.2d 
275. 

  

  

  

  

13  



analyze elections other than those where Anglo candidates oppose 

minority candidates. This Circuit disagrees. Westwego Citizens 
  

for Better Government v Westwego, 872 F.2d 1201, 1208 n. 7 (5th 
  

Cir. 1989); Campos v City of Baytown, 840 F.2d 1240, 1245 (5th 
  

    

Cir. 1988), rehearing denied, 849 F.2d 1240, cert. denied, u.s. 

(1989); Citizens for a Better Gretna v City of Gretna, 834 

F.2d 496, 503 (5th Cir. 1987); see, also, Smith v Clinton, 687 
    

F.Supp. 1310, 1318 (E.D Ark. 1988), summarily aff'd, 109 S.Ct. 
  

1310 (1989). 

27. Wood also claims that district court judges are already 

elected from single member districts. This is untrue, and 

unsupported by the evidence!’. The district court found that the 

existing system is at large, not by single member district. 

November 8 Order at 6, 89. 

28. Further, Wood claims that the court should base its 

analysis on the "pool" of minority attorneys eligible to be 

district court judges instead of the "pool" of minority voters. 

First, even if this theory were correct, it would not resolve the 

matter. As the lower court found, "even if there is some 

relationship between the low number of minority judges and the 

number of eligible minority lawyers, that fact does not explain why 

well qualified eligible minority lawyers lose judicial elections." 

November 8 Order at 75. 

  

Even Defendants’ expert agreed that Texas has an at large 
system for electing district court judges. Wood also relied on the 
testimony of the same expert. 

14  



  

29. Further, Wood's theory about the relevant "pool" is not 

correct. The "pool" of minority attorneys eligible to run for the 

district court simply is not relevant to this case. It is an 

improper attempt to impose an employment law concept, Wards Cove 
  

Packing Company v Atonio, 104 L.Ed.2d 733 (1989), into the case law 
  

of voting rights. Here, what matters is the inability of the 

minority voters to have their voice heard in elections for the 

district court bench. As Defendants’ experts agreed at trial, the 

number of eligible minority attorneys in the community is not 

relevant to what happens when a minority attorney opposes an Anglo 

attorney in an election for the district court bench. Further, 

this defensive claim overlooks a significant concept in the law of 

voting rights. The sheer number of minorities elected to the 

district court bench, although relevant, is not the litmus test in 

this litigation. The test is whether given polarized voting, the 

white majority bloc generally overwhelms the minority vote, "in the 

absence of special circumstances such as the minority candidate 
  

running unopposed." Gingles, 478 U. S. at 51 (emphasis added). 
  

The lower court properly refused to rely on the sheer number of 

sitting minority district judges because that reliance would 

overlook the fact that many of them are on the bench only because 

they ran unopposed or are appointed. 

30. Furthermore, even if labor market supply arguments apply 

in the area of voting rights, those arguments fail in this case. 

As the lower court found, "the pool of eligible [minority] lawyers 

is small, due in part, to historical discrimination." November 8 

15 

 



  

Order at 75. The State of Texas’ own practices artificially 

decreased the "supply" of minority candidates for the district 

court bench. Until the United States Supreme Court ruled in Sweatt 

v_Painter, 339 U. S. 629 (1950), the State of Texas prohibited 
  

Blacks from attending law school in the State and thus prevented 

them from becoming qualified to run for the position of judge. 

Similarly, according to defense expert Dr. Dyer, official 

discrimination has also prevented Hispanics from attending law 

school in the State. The history of official discrimination by the 

State of Texas, the defendant in this case, "deterred minority 

group members from applying" for positions on the district court 

bench. Wards Cove Packing Co., 104 L.Ed.2d at 748 n.7. Thus, 
  

Defendants’ discrimination against Blacks and Hispanics has 

contributed to the low numbers of those two groups in the labor 

pool of attorneys who are qualified to run for the district court 

bench. They cannot now hide behind their own past misbehavior to 

protect themselves from liability in this case. 

31. Wood also claims that the lower court'’s November 8 Order 

concerning Harris County is clearly erroneous. Given the great 

deference due to the lower court’s fact findings, Wright & Miller, 

Federal Practice and Prucedure: Civil Section 2585 (West 1971), 

this is a hard argument to make. 

January 2, 1990 Interim Order 

32. Defendant-intervenor-appellant Entz and purported 

appellant Bayoud claim that the January 2 Order is invalid because 

the lower court did not give the State of Texas an adequate 

16 

 



  

opportunity to respond by developing a new legislative plan. This 

is incorrect. The Texas legislature met once in regular session 

and twice in special session during the course of this litigation 

to date. Further, the lower court’s November 8 Order specifically 

invited the legislature to address this issue in the special 

session that began on November 13. Further, that order itself 

merely declared that the existing system was invalid. The lower 

court stayed itself sua sponte to allow the State of Texas to 
  

respond. Only when there was no response, the court acted. See, 

also, below, discussion of recent stay decisions in voting rights 
  

cases. 

33. Defendant-intervenor-appellant Wood claims that there is 

no authority for the entry of an interim order to remedy Voting 

Rights Act violations. This is incorrect. McDaniel v Sanchez, 452 
  

v.S..130, 153 n. 35 (1981); Connor v Waller, 421 U.S. 656, 657 
  

(1975). In fact, interim remedial plans are so common that the 

Department of Justice Section 5 preclearance regulations provide 

for them. 28 CFR Section 51.18(c). 

34. Wood comments on various aspects of the January 2 interim 

order. Briefly, Appellees respond. First, Wood complains that the 

interim plan "remedies" violations that have not been found because 

it creates districts for voters who are not black even though proof 

only pertained to blacks in Harris County. There is no merit to 

this criticism. The alternative would be to implement districts 

in the black portions of Harris County only and leave elections in 

the remainder of the county partially at large. This clearly does 

17 

 



not make sense and does not comport with any portion of the Texas 

Election Code. Further, it is invalid because it would place 

minorities "in a special category ... [and] ... would ‘send a 

message to [minorities] that they are outsiders, not full members 

of the political community, and an accompanying message to the 

[judges] elected at large ... that they are insiders, favored 

members of the political community.’" LULAC v Midland ISD, 648 F. 
  

Supp. 596, 608 (W.D.Tex. 1986), aff'd, 812 F.2d 1491 (5th Cir. 

1987), vacated, 829 F.2d 546 (quotation omitted). 

35. Wood does not approve of the use of legislative district 

lines as an interim system for electing district court judges in 

Harris County’. It is, however, appropriate to use these lines 

because they are an expression of the policy of the State of Texas. 

Also, since they have been precleared by the Department of Justice, 

there is some evidence that these lines meet the requisites of the 

Voting Rights Act. 

36. Entz and Wood disagree with the interim plan’s allocation 

of two district judges to the black neighborhoods and only one to 

the other districts. This is, however, necessary because of the 

long history of inadequate access by minorities to the election 

system” 

  

“She claims that these districts are not related to the black 
neighborhoods proven at trial in Midland. This is true; those 
neighborhoods were proven to comply with the first prong of 
analysis under Gingles. They were never intended to be used as 
remedial districts. 

Wood ’s assertion that the one person-one vote concept applies 
here is, of course, incorrect. 

18  



37. Entz, Wood and Bayoud object to the nonpartisan nature 

of the interim election plan. As the Attorney General stated in 

his letter of January 4, 1990 to this Court, Exhibit M, this issue 

is now pending before the lower court. Appellees request 

permission to supplement this Response if the lower court rules’. 

38. Wood even objects to the interim plan’s compliance with 

the terms of the Texas Election Code and constitution. She objects 

to the plan’s provision for four year terms, even though this is 

the standard term of office for district court judges. Tex. const. 

art. V, Section 7 (Vernon 1976, amended 1985). She further objects 

to the use of the first Saturday in May for elections and the first 

Saturday in June for run off elections, even though these dates are 

established by the Election Code, too. Tex. Election Code Ann. 

Section 41.001(b)(5). Further, she even objects to the interim 

plan’s provision to maintain the present jurisdiction and venue of 

the district courts and not to create a right to strike judges. 

These were clearly appropriate decisions by the lower court, which 

only has authority to change the existing system to the extent 

necessary to prevent the dilution of minority voting rights. Upham 

v_Seamon, 456 U.S. 37 (1982). 
  

39. Wood also objects to a common sense provision to protect 

incumbents - a provision to require that successful incumbents be 

returned to the courts where they now sit. This is a practical 

  

Appellees waited to file this Response in hope that the lower 
court would rule. Rather than wait any longer, they file this 
Response now. 

19  



  

attempt to preserve stability in the Texas judicial system. Chisom 

11, 853 F.2d at 1190. 

IRREPARABLE INJURY TO MOVANTS 

40. The orders below do not irreparably injure Movants. 

First, the lower court’s Order of November 8 does not irreparably 

injure anyone because it only declares that the present system is 

invalid; it in no way orders any type of relief. In addition, 

there can be no harm to Movants in allowing this case to proceed 

while appellate review of the November 8 Order continues. This 

will allow them a chance to present to this Court their views 

concerning the violation that the lower court found. 

41. Similarly, the January 2 Order does not irreparably 

injure Movants. It is an interim plan and "applies only to the 

1990 State District Court Judicial Elections in the nine target 

counties at issue in this case." January 2 Order at 7-8. It has 

no permanent effect. In fact, the lower court invites the Texas 

legislature to "fashicn a permanent remedy by way of a Special 

Called Session in the spring of 1990." Id. at 8. 

42. In addition, Defendant-intervenor-appellant Wood is not 

even a candidate for election this year. Her claims of immediate 

injury are hollow when considered in light of the fact that she 

will not have to run for office until 1992. By then, of course, 

the legislature will have had ample opportunity to consider this 

matter. Further, she will not run for office pursuant to the terms 

of the lower court’s January 2 interim order because it will no 

longer be in effect. 

20 

 



  

IRREPARABLE INJURY TO APPELLEES 

43. On the other hand, Appellees will suffer substantial harm 

if this Court stays proceedings pending appellate review of the 

November 8 and January 2 Orders. This harm to them by far 

outweighs any inconvenience that Movants may suffer. According to 

the deposition testimony of Black State Senator Craig Washington 

from Harris County'’, the Texas legislature has considered proposals 

for single member election districts for the judiciary since the 

mid-1970’s. Despite these years of proposals, and despite one 

regular session and two special sessions of the legislature during 

the course of this litigation, the legislature has not changed the 

system. The minority communities in the nine counties at issue in 

this case have already waited for decades to vote under a fair 

system for the district court judges who preside over their cases. 

They will suffer substantial harm if this Court continues to delay 

relief for them by staying proceedings in this case. 

INJURY TO PUBLIC INTEREST 

44. A stay would also injure the public interest because it 

would continue in place an election system that has the effect of 

discriminating against minority voters in nine counties in Texas. 

This discrimination violates the public policy of the United States 

as evidenced in the Voting Rights Act. 

  

"Senator Washington has since won an election to fill the 
Congressional seat vacated by the untimely death of the former 
United States Representative Leland. 

21 

 



  

45. Further, the State of Texas itself has expressed an 

interest in holding these elections promptly in 1990. If it had 

not had this interest, it would not have agreed on an interim plan 

which Plaintiffs and the Attorney General presented to the lower 

court®. 

46. The January 2 interim plan’s implementation of districts 

for district court elections is not foreign to the public interest 

as expressed by the policy of the State of Texas. Most rural 

district court judges are already elected from single member 

districts. 

47. Further, the January 2 interim plan is consistent with 

the public interest because it protects as much as possible the 

stability of the judiciary and the system for electing it. Chisom 

II, 853 F.2d at 1191. The interim order does not unnecessarily 

challenge the interests of the State of Texas as expressed in its 

election code. Since it uses only existing election lines already 

created by the State of Texas or its subdivisions, the interim plan 

is consistent with the State’s expressed policies. Order of 

January 2 at 5, Paragraph 2. Also, since these election lines have 

been precleared by the Department of Justice, there is some 

evidence that they are fair to voters in the nine counties. 

Further, the interim plan is consistent with State policy because 

it complies with Texas constitutional provisions concerning 

candidates’ residence, Id. at 6, Paragraph 3; length of term of 

  

The State has not requested a stay or joined in the pending 
stay requests. 

22 

 



office, Id., Paragraph 5; and uses existing election days in 

accordance with Section 41.001(b)(5) of the Texas Election Code. 

Id. at 6-7, Paragraph 6. Further, the interim plan is consistent 

with the public interest because "[c]urrent jurisdiction and venue 

of the District Courts remain unaffected, subject to modification 

by rule of the Supreme Court of Texas." Id. at 7, Paragraph 9. 

Further, the interim plan protects the public interest in a stable 

judiciary by giving successful incumbents preference in returning 

them to their own courts and specializations. Id. at 7, Paragraph 

8(2). 

RECENT STAY DECISIONS IN VOTING RIGHTS CASES 

48. Movants rely on Chisom II for relief here. This decision 
  

addresses the lower court’s grant of a preliminary injunction. 

Chisom II, of course, differs significantly from this case. First, 
  

it concerns injunctive relief before the trial court has reached 

the merits of a challenge to the system for electing judges. 853 

F.2d at 1187. Here, the district court issued an opinion on the 

merits, stayed its own hand pending legislative action, and only 

acted itself when the State failed to do so. Further, in Chisom 

II, the legislature and governor were willing to act to remedy 

violations of Section 2, Id. at 1192, but here they are not. The 

Governor has stated that the legislature cannot remedy this problem 

in time for the current election year cycle. Further, he has 

stated that he would veto a single member district system in the 

unlikely event that the legislature devises one. 

49. In spite of these differences, Movants’ reliance in their 

23  



  

Emergency Application for Stay on Chisom II is misplaced. Even in 
  

Chisom where the facts favored Defendants more than they do here, 
  

—the Circuit only stayed a very small portion of the district 

court’s decision pending appeal. In fact, the Fifth Circuit only 

stayed the lower court’s decision concerning a two day period - 

“the July 27 through July 29, 1988, qualifying period for the 

=e] ection in question.” Chisom, 850 F.2d 1051, 1052 (5th Cir. 

1988) (Chisom stay decision). Here, where the facts favor 

—Plaintiff-appellees, no stay is justified. 

50. Movants also rely on this Court’s December 5, 1989 and 

~January 3, 1990 decisions concerning a stay in Rangel v Mattox, No. 
  

89-6226." Those decisions, however, do not support their position 

—————_——xhat a stay is appropriate here. 

51. Initially, the Rangel appeal is from a final judgment 

with permanent effect. If the legislature does not act, the Rangel 

——————————nrder will continue in effect until that body does act. In this 

——rcase, however, there is no final judgment and no final order. The 

January 2 interim order is carefully limited to the 1990 election 

mre al. By its own terms, it "applies only to the 1990 State 

istrict Court Judicial Elections in the nine target counties." 

January 2 Order at 7-8. Further, the interim order specifically 

——————Tecognizes the important role that the Texas legislature plays in 

  

  redistricting and invites the legislature to "fashion a permanent 

  — remedy." Id. at 8.   

  

"Rangel is a Section 2 challenge to the system of electing 
—mudges to the Thirteenth Court of Appeals. 

  

24 

 



  

52. Further, the lower court’s orders in these two cases 

differ significantly in the deference that they pay to the Texas 

legislature. In this case, the lower court’s November 8 Order on 

the merits specifically requests assistance from the legislature 

in remedying the violations that the court found. November 8 Order 

at 92-3. The January 2 interim order also requests legislative 

action. January 2 Order at 8. In Rangel, though, the lower 

court’s decision on the merits merely asked the parties to suggest 

remedies and did not look to the legislature for help. exhibit 

Further, as described below, the lower court in Rangel did not even 

give the Texas legislature a full month - or a full special session 

- to consider this issue. 

53. In Rangel, timing problems absent here also created the 

need for a stay. The factual differences between the Rangel 

timetable and the timetable in this case, however, distinguish the 

two. 

54. On December 5, 1989, this Court stayed proceedings in 

Rangel because the State had not had "a reasonable period within 

which to address the problem presented in a special session of the 

Legislature." Slip Opinion at 1-2. In Rangel, the district 

court’s Order of November 3, 1989 implemented a remedial plan for 

the violations of Section 2 that the court found in its Order of 

July 28, 1989. The court stayed the effect of its November 3 

remedial order, however, until December 5, 1989, to allow the 

  

nacember 5 was the first day that candidates could file as 
candidates for positions on the Thirteenth Court of Appeals. 

25 

 



  

legislature to address the election system in the then on-going 

special session. This gave the legislature less than a month. 

Further, this schedule was out of sync with the legislature’s time 

frame. The special session began on November 14, 1989 and ended 

on December 13. The Rangel remedial order, therefore, did not give 

the legislature even until the end of the special session to 

address the issues that Rangel posed. 

55. This case, however, proceeded on a completely different =- 

and more lenient - time frame that gave the legislature a 

"reasonable period within which to address the problem presented 

in a special session." Rangel Slip Opinion at 1-2 (5th Cir. 

December 5, 1989). The lower court issued its Order on the merits 

on November 8, 1989. It specifically asked the legislature to 

remedy this matter in the November-December special session. 

November 8 Order at 92-3. Further, the lower court clearly stated 

that it would not address the issue of remedy until after the 

legislature had adjournei?’. November 8 Order at 93. It was not, 

in fact, until after a meeting where the Governor stated that the 

  

'0f course, legislative action would be slow at best. If the 
legislature acted by proposing an amendment to the Texas 
constitution, the next step would be a vote by the electorate, 
which would take months, at least. This process would take longer 
than the one year that this Court said is too long in the January 
3 decision in Rangel. Further, it might not result in any change, 
or in a change acceptable to the plaintiffs, the minority community 
or the court. For these reasons, the fact that the Governor has 
called a special session to address these issues this spring is not 
much help to Appellees. Also for these reasons, the lower court 
commented in its December 11 conference that it almost seemed 
futile to call a session given the unlikely chance of successful 
legislative resolution of this matter. 

26 

 



  

legislature would not act on this issue that the lower court issued 

its remedial order of January 2, 1990**. These factual differences 

between this case and Rangel show that this Court's December 5 

Rangel decision does not justify a stay here. 

56. Neither does this Court's January 3, 1990 Rangel decision 

justify a stay. In that Order, the Court found that the twenty 

eight days between its grant of a stay (December 5, 1989) and 

January 3 did not give the legislature a reasonable period of time 

to address the significant issues that Rangel posed. In this case, 

however, the legislature had a much longer - and entirely 

reasonable - length of time to consider this issue. The lower 

court found the election system invalid on November 8 but did not 

impose a remedy until January 2 - a total of fifty six days, or 

twice as long as Rangel’s twenty eight days. As this Court noted, 

the problem presented by this case is a "pressing one." Rangel 

Slip Opinion at 1 (5th. Cir. January 3, 1990). The minority 

community cannot wait any longer for relief. 

57. Therefore, Appellees respectfully request that the Court 

deny the various Requests for Stay. 

  

The Governor did not just say that the legislature would not 
address the issue. He also said that he would consider calling a 
special session of the legislature after March. This would have 
been of little practical value because the primary elections were 
scheduled to be held then. Further, the Governor stated that he 
did not believe that the legislature would be able to resolve the 
matter without lengthy - and time consuming - study. Finally, he 
also said that in the unlikely event that the legislature 
established a districting plan, he would probably veto it. When 
faced with this slim chance of legislative resolution of this 
issue, the lower court had no choice but to resolve the matter 
itself for the imminent 1990 elections. 

27 

 



STAY OF ELECTIONS 

58. Alternatively, if this Court grants a stay of proceedings 

pending appeal, Appellees request that the Court enjoin elections 

as well. FRAP 8. It would do Appellees a great disservice to 

allow elections to go forth under the existing at large system 

because the lower court found that the current system is not valid. 

If this Court grants a stay and enjoins elections, Appellees 

request that those orders be phrased so that they expire 1) if the 

legislature enacts an election system that meets with judicial 

and/or Department of Justice approval so that elections may be 

completed in 1990 in time to allow newly elected district judges 

to take office as scheduled on January 1,1991 or 2) in sufficient 

time to allow elections as ordered by the lower court on January 

2, 1990 and by any orders that this Court may issue concerning 

timing or other matters. 

Dated: January 10, 1990 

Respectfully submitted: 

GARRETT, THOMPSON & CHANG 
ATTORNEYS AT LAW 

A Partnership of Professional 
Corporations 

William L. Garrett 
Brenda Hull Thompson 
8300 Douglas #800 
Dallas, Texas 75225 
(214)369-1952 
LEAD COUNSEL 

ROLANDO L. RIOS 

ATTORNEY AT LAW 

201 N. St. Mary's #521 
San Antonio, Texas 78205 

28  



  

(512)222-2102 

SUSAN FINKELSTEIN 

STAFF ATTORNEY 

TEXAS RURAL LEGAL AID, INC. 

201 N. St. Mary’'s #600 
San Antonio, Texas 78205 
(512)222-2478 

/ 

4 (2 BY: Ltr Cite LTr 
/ATTORNEY FOR PLAINTIFF-APPELLEES 
  

Edward B. Cloutman, III 
MULLINAX, WELLS, BAAB 

& CLOUTMAN, P. C. 

3301 Elm 
Dallas, TX 75226-9222 
(214)939-9222 

E. Brice Cunningham 
ATTORNEY AT LAW 
777 S. R. L. Thornton Fwy, 
Suite 121 
Dallas, TX 75203 

214/428-3793 

rd / - 

BY: & 2 Ct cr rr com £2, ha 

ATTORNEY FOR DALLAS-PLAINTIFF- 

INTERVENOR-APPELLEES JOAN WINN 

WHITE, JESSE OLIVER & FRED 

TINSLEY 

  

CERTIFICATE OF SERVICE 
  

I, Susan Finkelstein, do hereby certify that a true and 

correct copy of Plaintiff-Appellees’ Opposition to Requests For 

Stay has been mailed via federal express to: 

ATTORNEY REPRESENTING 
    

Plaintiff - Intervenors 
  

29 

 



  

Julius Levonne Chambers 
Sherrilyn A. Ifill 
NAACP Legal Defense & Educational 

Fund, Inc. 
99 Hudson St., 16th floor 
New York, NY 10013 
212/219-1900 

Gabrielle K. McDonald 
MATTHEWS & BRANSCOMB 

301 Congress Ave., Suite 2050 
Austin, TX 78701 
512/320-5055 

Defendants 
  

Jim Mattox 
Mary F. Keller 
Renea Hicks 
Javier Guajardo 
Attorney General’s Office 
P. O. Box 12548 
Austin, TX 78711 

512/463-2085 

Defendant-Intervenors 
  

J. Eugene Clements 
E. O'Neill 
Evelyn V. Keys 
PORTER & CLEMENTS 

700 Louisiana, Suite 3500 
Houston, TX 77002-2730 
713/226-0600 

Darrell Smith 
Attorney at Law 
10999 Interstate Highway 10, 
Suite 905 
San Antonio, TX 78230 
512/641-9944 

Michael J. Wood 
Attorney at Law 
440 Louisiana, Suite 200 
Houston, TX 77002 
713/228-5105 

Mark H. Dettman 
County Attorney 
P. O. Box 2559 

30 

® 

Houston Lawyers Assn. 
Francis Williams 

Rev. William Lawson 

Houston Lawyers Assn. 
Francis Williams 
Rev. William Lawson 
Texas Legislative 

Black Caucus 

All Defendants 

Judge Sharolyn Wood 
of Harris County 

Judge Sharolyn Wood 
of Harris County 

Judge Sharolyn Wood 
of Harris County 

Midland County & 
District Judges 

 



  

i. » 

Midland, TX 79702 
915/688-1084 

Ken Oden Travis County District 
Travis County Attorney Judges 
P. O. Box 1748 
Austin, TX 78767 
512/473-9415 

David R. Richards Travis County District 
Special Counsel Judges 
600 W. 7th St. 
Austin, TX 78701 

Robert H. Mow, Jr. Judge Harold Entz 
HUGHES & LUCE of Dallas County 
2800 Momentum Place 
1717 Main St. 
Dallas, TX 75201 
214/939-5500 

Seagal V. Wheatley Bexar County District 
Oppenheimer, Rosenberg, Kelleher Judges 
& Wheatley, Inc. 
711 Navarro, 6th Floor 
San Antonio, Texas 78205 
512-224-2000 
FAX 512-224-7540 

John ‘L. Hill, Jr. George Bayoud 
Liddell, Sapp, Zivley, Hill & LaBoon 
Texas Commerce Tower 
Houston, Texas 77002 
713-226-1200 
FAX 713-223-3717 

/ 

each at the correct address on this 10th ee 1990. 

—F Ul 7 Ceti belts 

ATTORNEY FOR PLAINTIFF 
  

31