Petition for Writ of Certiorari

    ee ins (OKLE PRINTING (0. SN inser 
Omaha, Nebraska 68102   

Law Brief Specialists > 
FAX Number: 402-342-4850 Since 1923 Call Collect (402) 342-2831 

|, Linda Chloupek, of lawful age, being duly sworn, upon my oath state that | did, on the 13 day 

of December 1990 , place in the U.S. Post Office in Omaha, NE 7 package(s) containing 

printed copies of ~~ pETITION FOR WRIT OF CERTIORARI 
in the following case: 

No. 

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, ET AL. 

and 

JESSE OLIVER, ET AL., Petitioners, 

V.. 

JIM MATTOX, ET AlL., Respondents. 

  

  

that the proper first class postage was affixed to said envelope(s) and that they were plainly addressed to the following: 

(See Attached Page)   
Chonda Chloupeh 

Affiant 
  

Subscribed and sworn to before me this 13 day of December 1990 
| am duly authorized under the laws of the State of Nebraska to administer oaths. 

GENERAL BOTARY-Stae of Nebraska | . 
| ; PATRICIA C. BILLOTTE Si Ie 4, 

My Comm. Exp. Nov, 24, 1992 Notary Public 

  

  

  

To be filed for: 
*WILLIAM 1. GARRETT **EDWARD B. CLOUTMAN III 
BRENDA HULL THOMPSON 3301 Elm St. 

8300 Douglas, Suite 800 Dallas, TX 75226 

Dallas, TX 75225 214/ 939-9222 
214/ 369-1952 

*%*Attorney of Record for 
*Attorney of Record for Jesse Oliver, et al. 

LULAC, et al. 

 



  

H & 

Joseph E. Clements, Esq. 
Porter & Clements 

700 Louisiana Street 

3500 RepublicBank Center 
Houston, TX 77002 

(713) 226-0600 

For Judge Sharolyn Wood 

Bobert H. Mow, Jr., EHq. 

Hughes & Luce 

1717 Main St. 

Suite 2800 

Pallas, TX 75201 

(214) 939-5500 
For Judge Harold Ent:z 

Sherrilyn Ifill, Esq. 

NAACP Legal Defense & Education 
Fund 

99 Hudson St. 

16th Floor 

New York, NY 10013 
(212) 219-1900 
For Houston Lawyers Association, et al, 

Jim. Mattox, Esq. 

Renea Hicks 

7th Floor, Supreme Court Bldg. 

l4th & Colorado 

Austin, TX 78701 

(512) 463-2100 

For the State of Texas 

Seagal V. Wheatley, Esq. 
Donald BR. Philbin, Jr., Esq. 
Oppenheimer, Rosenberg, et al. 

711 Navarro, #600 
San Antonio, TX 78205 

(512) 224-2000 

For Judge Tom Richoff, et al. 

John L.. Hill, Jr., Esq. 

Liddell, Sapp, Zivley, Hill & LaBoon 

3300 Texas Commerce Tower 

Houston, TX 77002 

(713) 226-1200 
For George Bayoud, Secretary of State 

Gabrielle K. McDonald, Esq. 

Matthews & Branscomb 

301 Congress Avenue 

#2050 

Austin, TX 78701 

(512) 320-5055 

For Houston Lawyers Association, et al.  



  

  
  

In The 

Supreme Court of the United States 
October Term, 1990 

y'S 
v 

LEAGUE OF UNITED LATIN AMERICAN 
CITIZENS, ET Al. 

and 

JESSE OLIVER, ET AL. 

  

Petitioners, 

V. 

JIM MATTOX, ET AL, 

Respondents. 
é 
v 

Petition For A Writ Of Certiorari 

To The United States Court Of Appeals 
For The Fifth Circuit 

  

é 

PETITION FOR A WRIT OF CERTIORARI 

  

  

*WiLLiaM L. GARRETT SusaN FINKELSTEIN 

BrenDA HurL THOMPSON 201 N. St. Mary's, # 624 
8300 Douglas, Suite 800 San Antonio, TX 78205 
Dallas, TX 75225 512/ 222-2478 

Rf Soe-1957 Attorneys for Petitioner 
Roranpo L. Rios Christina Moreno 

201 N. St. Mary's, # 321 .. 
San Antonio, x 78205 Eowasp B, Croumvan li 
512/ 222-2102 350 fim 

Dallas, TX 75226 
Attorneys for Petitioners 214/ 939-9222 
LLILAC, i ol EB 

. BrRiIcE CUNNINGHAM 
Texas RuraL Legal AID, Inc. 777 5S. BR. 1... Thornton 

Davip HaLL Dallas, TX 75203 
259 S. Texas 214/ 428-3793 

ag ea Attorneys for Petitioners 
Jesse Oliver, et al. 

*Attorney of Record for *t 
Attorney of Record for 

LULAC, ¢ al. Jesse Oliver, et al. 
  
  

COCKLE LAW BRIEF PRINTING C 0., (800) 225-6964 
OR CALL COLLECT (402) 342-2831  



    

 



QUESTION PRESENTED FOR REVIEW 

1. Does Section 2 of the Voting Rights Act, 42 
U. S. C. 1973, apply to dilution claims in judicial 
election systems? 

 



    

ii 

LIST OF ALL PARTIES 

Plaintiffs: 

League of United Latin American Citizens (Statewide) 
LULAC Local Council 4434 
LULAC Local Council 4451 

Christina Moreno 
Aquilla Watson 
Joan Ervin 

Matthew W. Plummer, Sr. 
Jim Conley 
Volma Overton 
Gene Collins 
Al Price 

Judge Mary Ellen Hicks 
Rev. James Thomas 

Plaintiff-Intervenors: 

Harris County: 

Houston Lawyers’ Association 
Alice Bonner 
Weldon Berry 
Francis Williams 
Rev. William Lawson 
Deloyd T. Parker 
Bennie McGinty 

Dallas County: 

Jesse Oliver 
Fred Tinsley 
Joan Winn White 

Defendants: 

William P. Clements, Governor, State of Texas (Dismissed 
prior to trial) 
Jim Mattox, Attorney General of Texas 
George Bayoud, Secretary of State 
Texas Judicial Districts Board 

 



iii 

LIST OF ALL PARTIES - (Continued) 

Thomas R. Phillips, Chief Justice, Texas Supreme Court 
Mike McCormick, Presiding Judge, Court of Criminal 
Appeals 
Ron Chapman, Presiding Judge, 1st Admin. Judicial 
Region 
Thomas J. Stovall, Jr., Presiding Judge, 2nd Admin. Judi- 
cial Region 
James F. Clawson, Jr, Presiding Judge, 3rd Admin. Judi- 
cial Region 
John Cornyn, Presiding Judge, 4th Admin. Judicial 
Region 
Robert Blackmon, Presiding Judge, 5th Admin. Judicial 
Region 
Sam B. Paxson, Presiding Judge, 6th Admin. Judicial 
Region 
Weldon Kirk, Presiding Judge, 7th Admin. Judicial 
Region 
Jeff Walker, Presiding Judge, 8th Admin. Judicial Region 
Ray D. Anderson, Presiding Judge, 9th Admin. Judicial 
Region 
Joe Spurlock II, President, Texas Judicial Council, 
Leonard E. Davis 

Defendant-Intervenors: 

Judge Sharolyn Wood (Harris County) 

Judge Harold Entz (Dallas County) 

Bexar County: 

Judge Tom Rickoff 
Judge Susan D. Reed 
Judge John J. Specia, Jr. 
Judge Sid L. Harle 
Judge Sharon Macrae 
Judge Michael D. Pedan  



  

iv 

TABLE OF CONTENTS 
Page 

Ouestion Presented for Review ............ cco vuss i 

Listiof AllParties.. .. =o... 00 Hane, ii 

Table of Contents ........ teal. on an vdiida dass iv 

Table of AMthorities .....ovtvevvnr at ssrnnnedts rs ran Vv 

Opinions Below .................0c cians nnrsinnes /. 

JunsAicHON. he... ivan dl 2 

Statutory Provisions... ............. ...... 5 2 

Statement ofthe Case =... 7... esis icin 5 

Reasons for Granting the Writ... .=................. 11 

I. The Decision of the En Banc Fifth Circuit Conflicts 
with Applicable Decisions of this Court........ 11 

II. There is a Conflict Between the Fifth and Sixth 
CICS... rd en refi en 14 

Analysicgiof the Conflict ............ 555-00 14 

1. Judges are “Representatives” for Pur- 
poses of the Voting Rights Act......... 14 

2. The Non-Applicability of One-Person, 
One-Vote Principles to Judicial Election 
Systems Does Not Foreclose a Vote Dilu- 
tion Claim. ......... culo ua ddadin 5 17 

3. The Interpretation of the Voting Rights 
Act by the Attorney General is Authori- 
tative........ ea a Ra Th a 18 

The Conflict Involves an Important Question 
of Fundamental Richie ...................... 19 

CoONCIOS OI. ie eas i 20 

   



TABLE OF AUTHORITIES 
Page 

CaAsEs: 

Allen v. State Board of Elections, 393 U. S. 544 (1969) .... 13 

Atlantic Cleaners & Dyers v. United States, 286 U. S. 
A427 L1832) cs vs i is ssn tod dokadid bis va SORE IIRTN, 12 

Chisom v. Edwards, 839 F. 2d 1056 (5th Cir. 1988), 
cert. denied sub nom. Roemer v. Chisom, 109 S. Ct. 
B90 (1938)... si LE ch ies 8,9, 19 

Dillard v. Crenshaw Co., 831 FE 2d 246 (11th Cir. 
Lr BER EE RSs Te i 19 

Georgia State Board of Elections v. Brooks, Civ. No. 
CV 288-146 (S. D. Ga. 1989), aff'd mem. 111 S. Ct. 
EEE LY Os el LO ae OE Ll 11,.13 

Haith v. Martin, 618 FE. Supp. 410 (E. D. N. C. 1985), 
aff'd mem., 477 U. S. 901 11986) ............ 11,12, 13 

LULAC v. Clements, 914 F. 2d 620 (5th Cir. 1990) (en 
bane) i 0. 500 ai RA Ae NL BRST passim 

Mallory v. Eyrich, 839 F. 2d 275 (6th Cir. 1988) 14, 17, 19 

Mandel v. Brodiey, 432 U. 8. 173 (1977) .............. 13 

Nipper v. U-Haul Co., 516 5.W.2d 467 (Tex. Civ. 
APD. 1974)... or aa Beh see 10, 19 

Pampanga Sugar Mills v. Trinidad, 279 U. S. 211 
Ge) BEET me Se 12 

South Carolina v. Katzenbach, 383 U. S. 301 (1966) .... 13 

Thornburg v. Gingles, 478 U. S. 30 (1986)........... 6, 16 

United States v. Board of Commissioners of Sheffield, 
Ala, 435 U.S 110H1978)... .. . ocr nN SA 18 

Wells v. Edwards, 347 EF. Supp. 453 (M. D. La. 1972) 
Ad, 400. 8, T0053 (A973).0e ieveinciraninensss 17  



  

vi 

TABLE OF AUTHORITIES - Continued 
Page 

STATUTES: 

23 US.CHI26401) ... ... 5k a a ss eae a 2 

2 USC. 133... ies csins inser dain. Sal 6 

42.1).5.C.. 1973 a5 amended. .. co. . o ccs naocniimse 2.5.14 

42 SC, 197032) essen tanta nos ms 3 

CBE ARI dae Le Lue Bee DBDs Tl RE 3 

ead DRL Le Deon BL A re a i 5 

Texas Civil Practice & Remedies Code, Ch. 15....... 10 

Texas Elec. Code, Sec, 2.001... 5. oc sa ines 10 

Texas Elec. Code, Sec, 172003... out. ie veins vr sinus 10 

OTHER AUTHORITIES: 

Texas Const, Art. 5, SC. 7 civ viii ries 9 

Texas Const, Art. 5 Sec. B ......icciiviiinicinin,., 6 

United States Constitution, Fourteenth and Fif- 
teenth Amendments... ............:&. ........ passim 

Senate Report, No 97-417, 97th Congress 2d Sess., 
reprinted in 1982 U. S. Code Cong. & Admin. 
News: =... re i dir ta 7, 10 

   



  

ry 
v 

In The 

Supreme Court of the United States 
October Term, 1990 

  

  

y'N 
v 

LEAGUE OF UNITED LATIN AMERICAN 
CITIZENS, ET AL. 

and 

JESSE OLIVER, ET AL, 

Petitioners, 

V. 

JIM MATTOX, ET AL, 

Respondents. 

  

VN 
4 

Petition For A Writ Of Certiorari 
To The United States Court Of Appeals 

For The Fifth Circuit 

o 
v 
  

PETITION FOR A WRIT OF CERTIORARI 

o 
v 
  

Petitioners, the League of United Latin American 

Citizens, et al., and Jesse Oliver, et al., pray that a Writ of 

Certiorari be issued to review the decision in this case of 

the United States Court of Appeals for the Fifth Circuit, 

en banc. 

  

4  



  

OPINIONS BELOW 

The opinion of the United States District Court for 

the Western District of Texas has not been reported, but is 

included in the Appendix.! The opinion of a panel of the 

United States Court of Appeals for the Fifth Circuit is 

reported at 902 F. 2d 293 (5th Cir. 1990). The order grant- 

ing rehearing en banc (sua sponte) is reported at 902 EF. 2d 

322 (5th Cir. 1990). The opinion of the United States Court 

of Appeals for the Fifth Circuit, en banc, is reported at 914 

EF. 2d. 620 (5th Cir. 1990), and reproduced in the Appen- 

dix. 

  

rN 
v 

JURISDICTION 

The judgment of the Court of Appeals was entered 

on September 28, 1990. The jurisdiction of this Court is 
invoked pursuant to 28 U.S.C. 1254(1). 

  

STATUTES INVOLVED 

Section 2 of the Voting Rights Act of 1965, 42 U.S.C. 

1973, as amended, provides as follows: 

(a) No voting qualification or prerequisite 
to voting, or standard, practice, or procedure 

  

1 All references to the Appendix refer to the Appendix 
filed in No. 90-813, Houston Lawyers’ Assn. et al. v. Jim 

Mattox, et al. The Houston Lawyers’ Assn. was a plaintiff- 
intervenor in the case before the district court, as were Jesse 

Oliver, et al. who are joining petitioners League of United Latin 
American Citizens, et al. in this petition. 

   



  

shall be imposed or applied by any State or 
political subdivision in a manner which results 
in a denial or abridgement of the right of any 
citizen of the United States to vote on account of 
race or color, or in contravention of the guaran- 
tees set forth in Section 1973b(f)(2) of this title, 
as provided in subsection (b) of this section. 

(b) A violation of subsection (a) of this 
section is established if, based on the totality of 
circumstances, it is shown that the political pro- 
cesses leading to nomination or election in the 
State or political subdivision are not equally 
open to participation by members of a class of 
citizens protected by subsection (a) of this sec- 
tion in that its members have less opportunity 
than other members of the electorate to partici- 
pate in the political process and to elect repre- 
sentatives of their choice. The extent to which 
members of a protected class have been elected 
to office in the State or political subdivision is 
one circumstance which may be considered: 
Provided, That nothing in this section estab- 
lishes a right to have members of a protected 
class elected in numbers equal to their propor- 
tion in the population. 

Section 4 of the Voting Rights Act of 1965, 42 U.S.C. 

1973b(f)(2), provides, in pertinent part, as follows: 

No voting qualification or prerequisite to vot- 
ing, or standard, practice, or procedure shall be 
imposed or applied by any State or political 
subdivision to deny or abridge the right of any 
citizen of the United States to vote because he is 
a member of a language minority group. 

Section 5 of the Voting Rights Act of 1965, 42 U.S.C. 

1973c, provides, in pertinent part, as follows: 

Whenever a State of political subdivision with 
respect to which the prohibitions set forth in  



  

section 4(a) based upon determinations made 
under the first sentence of section 4(b) are in 
effect shall enact or seek to administer any vot- 
ing qualification or prerequisite to voting, or 
standard, practice, or procedure with respect to 
voting different from that in force or effect on 
November 1, 1964, or whenever a State or politi- 
cal subdivision with respect to which the prohi- 
bitions set forth in section 4(a) based upon 
determinations made under the second sentence 
of section 4(b) are in effect shall enact or seek to 
administer any voting qualification or prerequi- 
site to voting, or standard, practice, or pro- 

cedure with respect to voting different from that 
in force or effect on November 1, 1968, or when- 
ever a State of political subdivision with respect 
to which the prohibitions set forth in section 
4(a) based upon determinations made under the 
third sentence of section 4(b) are in effect shall 
enact or seek to administer any voting qualifica- 
tion or prerequisite to voting, or standard, prac- 
tice, or procedure with respect to voting 
different from that in force or effect on Novem- 
ber 1, 1972, such State or subdivision may insti- 
tute an action in the United States District Court 
for the District of Columbia for a declaratory 
judgment that such qualification, prerequisite, 
standard, practice or procedure does not have 
the purpose and will not have the effect of deny- 
ing or abridging the right to vote on account of 
race or color, or in contravention of the guaran- 
tees set forth in section 4(f)(2), and unless and 
until the court enters such judgment no person 
shall be denied the right to vote for failure to 
comply with such qualification, prerequisite, 
standard, practice, or procedure: Provided, That 
such qualification, prerequisite, standard, prac- 
tice, or procedure may be enforced with out 
such proceeding if the qualification, prerequi- 
site, standard, practice, or procedure has been 
submitted by the chief legal officer or other 

   



appropriate official of such State or subdivision 
to the Attorney General and the Attorney Gen- 
eral has not interposed an objection within sixty 
days after such submission, or upon good cause 
shown, to facilitate an expedited approval 
within sixty days after such submission, the 
Attorney General has affirmatively indicated 
that such objection will not be made. Neither an 
affirmative indication by the Attorney General 
that no objection will be made, nor the Attorney 
General’s failure to object, nor a declaratory 
judgment entered under this section shall bar a 
subsequent action to enjoin enforcement of such 
qualification, prerequisite, standard, practice, or 
procedure. In the event the Attorney General 
affirmatively indicates that no objection will be 
made within the sixty day period following 
receipt of a submission, the Attorney General 
may reserve the right to reexamine the submis- 
sion if additional information comes to his 
attention during the remainder of the sixty-day 
period which would otherwise require objection 
in accordance with the section. Any action 
under this section shall be heard and deter- 
mined by a court of three judges in accordance 
with the provision of section 2284 of title 28 of 
the United States Code and any appeal shall lie 
to the Supreme Court. 

  

VS 
b. 4 

STATEMENT OF THE CASE 

The Proceedings Below 

This is a voting rights case brought by Black and 

Hispanic citizens of and organizations within the State of 

Texas. Suit was filed in the United States District Court 

for the Western District of Texas under the Voting Rights 

Act, 42 US.C. 1973, and under 42 U.S.C. 1983, alleging  



  

violations of the Fourteenth and Fifteenth Amendments 

to the United States Constitution. Jurisdiction below was 

based upon 28 U.S.C. 1331. 

At issue is the at-large method of electing district 

judges.?2 The challenge was limited to nine metropolitan 

counties (Harris, Dallas, Bexar, Tarrant, Travis, Lubbock, 

Midland, Ector, and Jefferson counties) out of Texas’ 254 

counties; however, the challenge included 172 (44%) of 

the state’s then 375 district judges. 

After a trial to the Court, the district judge entered 

findings of fact and conclusions of law, and found a 

violation of Section 2 of the Voting Rights Act in all nine 

counties. (Appendix, at pp. 183a-304a) The Court did not 

find that the 1985 Amendment to the Texas Constitution 

allowing a county to sub-divide itself for purposes of 
election of district judges was motivated by discrimina- 

tory intent. Finding of Fact No. 36, and Conclusions of 

Law Nos. 22-23. (Appendix, at pp. 282a-283a; 301a-302a) 

In each county challenged, the trial court found for 

plaintiffs on each of the threshold Gingles factors, Thorn- 

burg v. Gingles, 478 U. S. 30 (1986): 

* the minority group was sufficiently con- 
centrated so as to constitute a voting age 
majority in a single member district, 
(Appendix, at pp. 200a-209a), and 

* the minority group voted cohesively, 
(Appendix, at pp. 210a-275a), and 

  

2 In Texas, the trial court of general jurisdiction is the 
district court. Texas Constitution, Art. 5, Sec. 8. 

   



* a white voting bloc usually defeated the 
choice of the minority voters. (Appen- 
dix, at pp. 210a-275a). 

In addition, the trial court found that voting in these 

counties was racially polarized, (Appendix, at pp. 

210a-275a), and that there was a lack of success of minor- 

ity candidates. (Appendix, at pp. 279a-281a). As required, 

it made findings regarding the “typical factors,” (Appen- 

dix, at pp. 275a-285a) as discussed in the Senate Report, 

No 97-417, 97th Congress 2d Sess., reprinted in 1982 U. S. 

Code Cong. & Admin. News at pp. 177 et seq., which is a 

part of the legislative history of the 1982 amendments to 

the Voting Rights Act. 

Finally, based upon the “totality of the circum- 

stances,” the trial court found that minority voting 
strength was diluted in each of the targeted counties. 

(Appendix, at pp. 297a-301a). 

Although given an opportunity to do so, the Texas 

Legislature failed to remedy the discriminatory at-large 

election system. Therefore, on January 2, 1990, the trial 

court enjoined further use of the at-large electoral system 

in these counties. Pursuant, in part, to an agreement 

between the plaintiffs and the Attorney General for the 
State of Texas, it ordered a non-partisan, interim election 

plan under. which the counties were sub-divided into 

districts coincident with existing electoral boundaries for 

state representatives, or county commissioners, or justice 

of the peace precincts. On January 11, 1990, this interim 

plan was stayed by the United States Court of Appeals 

for the Fifth Circuit pending appeal.  



  

On May 11, 1990, that court reversed the district 

court, holding 2-1 that trial judges occupy single-member 

offices which are incapable of being further sub-divided. 

901 F. 2d 293 (5th Cir. 1990). Four days later, pursuant to a 

majority vote of the active judges, a rehearing en banc was 

ordered, and on September 28, 1990, the en banc court 

reversed the trial court in a severely split opinion. 914 F. 

2d 620 (5th Cir. 1990). (Appendix, at pp. 1a-182a). 

The majority opinion, written by J. Gee, (Appendix, 

at pp. 1a-35a), held that even though an intentional dis- 

crimination claim under the Fourteenth and Fifteenth 

Amendments to the U. S. Constitution could be main- 

tained for judicial elections, and even though Section 5 of 
the Voting Rights Act applies to judicial elections, and 

even though some elements of Section 2 apply to judicial 

elections, the amended Section 2 of the Voting Rights Act 

which incorporates a “results test” does not allow a vote 

dilution claim against a judicial election system, regard- 

less of how discriminatory it may be.3 They specifically 
overruled a prior opinion of that court to the contrary, 

Chisom v. Edwards, 839 F. 2d 1056 (5th Cir. 1988), cert. 

denied sub nom. Roemer v. Chisom, 109 S. Ct. 390 (1988). 

  

3 The findings of the district court, (Appendix, at pp. 
183a-304a), undisturbed on appeal, establish that minority 

voters in the targeted Texas counties are unable to elect judges 
of their choice. 

4 Chisom v. Roemer, as the case is now called, is also before 

this Court on Petition for Writ of Certiorari, No. 90-797. Chisom 

involves the Louisiana Supreme Court. LULAC involves Texas 
trial judges. The Higginbotham concurrence in this case, 914 F. 
2d 634-651, raises the issue of whether Section 2 of the Voting 

Rights Act covers the election of appellate state court judges 
but not trial judges. It is incumbent upon this Court to fully 
resolve the issue of Section 2 applicability to judicial elections. 

37
 
T
E
N
E
 V
S 

   



RE
 
S
u
p
 

C
i
e
 

One concurring opinion, written by J. Higginbotham, 

(Appendix, at pp. 47a-114a), following Chisom, supported 

the prior panel opinion in LULAC that although Section 2 

of the Voting Rights Act covers judicial elections, there is 

an exception to coverage for trial judges based upon the 

concept that a single-member office is not amenable to 

further division. 

The dissent, written by J. Johnson, (Appendix, at pp. 

115a-182a), author of the Chisom opinion, strongly urged 

that all sections of the Voting Rights Act are applicable to 

all judicial elections, and that the minority vote dilution 

proved at trial should be remedied. He characterized the 

majority opinion as “dangerous” and a “burning scar on 

the flesh of the Voting Rights Act.” (Appendix, at p. 

116a). 

Statement of Facts 

Judicial districts are created by statute. District 

judges are elected in the targeted counties in county 

wide,5 partisan elections, but each judicial candidate 

must file for a specific court, a numbered post, e. g. the 

254th District Court. Each of the targeted judicial districts 

is county wide, with the exception of the 72nd Judicial 

District, which covers two counties. 

Qualifications for office are set by the Texas Constitu- 

tion and by statute. Texas Const., Art. 5, Sec. 7. To become 

  

> The Texas Constitution requires judicial districts to be no 
smaller than a county unless authorized by a majority of the 
voters in the county. Texas Const., Art. 5, Sec 7a(i). To date, no 

election under this provision has been held.  



  

10 

the party nominee for a numbered judicial post, a candi- 
date must receive a majority of the votes cast, Texas Elec. 

Code, Sec. 172.003; however, in the general election, a 

plurality determines the winner. Texas Elec. Code, Sec. 

2.001. A district judge’s term is four years, and such 

terms are staggered in multi-judge counties. 

Although a district judge usually sits in the county 
from which he/she is elected, jurisdiction of any district 

court is statewide. Nipper v. U-Haul Co., 516 S.W.2d 467, 
470 (Tex. Civ. App. 1974). Venue is determined by a 
complex set of statutes. Texas Civil Practice & Remedies 

Code, Ch. 15. 

Minority electoral success has been minimal. A 

review of the targeted counties reveals the following: 

County No. of No. of  Tolal Percent 
Judges Minority Population Minority® 

Judges 

Harris 59 3 (5%) 2,409,544 19.7% 

Dallas 37 2 (5%) 1,556,549 18.5% 

Tarrant 23 2 (9%) 860,880 11.8% 
Bexar 19 5 (26%) 988,800 46.6% 
Travis 13 0 (0%) 419,335 17.2% 

Jefferson 8 0 (0%) 250,938 28.2% 

Lubbock 6 0 (0%) 211,651 .27.1% 

Ector 4 0 (0%) 115,374 25.9% 

Midland 3 0 (0%) 82,636 23.5% 

  

6 “No. of Minority Judges” and “Percent Minority” here 
refer only to the ethnic or racial group on whose behalf a case 
was presented to the district court. For example, in Dallas 
County, there were 2 Black judges and one Hispanic judge at 
time of trial, and Blacks were 18.5% and Hispanics were 9.9% 
of the total population; however, a case was presented only on 
behalf of Blacks. 

   



11 

The above chart presents data as of the time of trial 

in September, 1989. Perhaps more revealing of the lack of 

minority access is the fact that in Harris County only two 

Blacks have defeated whites in seventeen contested judi- 

cial elections. In Dallas County, only two Blacks have 

won out of seven contests. Bexar County results reveal 

that only one Hispanic has been victorious in six contests. 

In the other targeted counties, no minority has ever won. 

In Jefferson, Lubbock, Ector and Midland counties, no 

minority has ever run. Findings of Fact No. 31. (Appen- 

dix, at pp. 279a-280a). 

  

bo. 
i, 4 

REASONS FOR GRANTING THE WRIT 

I. 

The Decision of the En Banc Fifth Circuit Conflicts with 
Applicable Decisions of This Court 

Despite its contention to the contrary, the en banc 

decision of the Fifth Circuit conflicts with the decisions of 

this Court in Haith v. Martin, 618 E. Supp. 410 (E. D. N. C. 

1985), aff'd mem., 477 U..5..901, 106.5. Ct. 3263, 91 L. Ed. 

2d 559 (1986), and most recently, Georgia State Board of 

Elections v. Brooks, Civ. No. 288-146 (S. D. Ga. 1989), aff'd 

mem., 111 S. Ct. 288 (1990). 

These two decisions hold that Section 5 of the Voting 

Rights Act applies to judicial elections. The proscribed 

practices covered by Section 2 and Section 5 are the same: 

any “voting qualification or prerequisite to voting, or 

standard, practice, or procedure” with respect to voting. 

This Court affirmed the holding in Haith v. Martin, 618 EF. 

Supp. at 413, that “ . . . the Act applies to all voting  



  

12 

without any limitation as to who, or what, is the object of 

the vote.” (emphasis in original). 

Although the majority opinion of the en banc Fifth 
Circuit does not dispute the Haith decision, and although 

they assert that some portions of Section 2 may apply to 

the judiciary, they held that the “results test introduced in 

response to the holding in Bolden to govern vote dilution 

in the election of ‘representatives,’ . . . by its own terms 

does not” apply to the judiciary. LULAC, en banc, 914 F. 2d 

at 629. (Appendix, at p. 29a). As pointed out by both 

Judge Higginbotham’s concurrence, LULAC, en banc, 914 

FE. 2d at 638-642, (Appendix, at pp. 62a-79a), and Judge 
Johnson's dissent, LULAC, en banc, 914 F. 2d at 655-659, 

(Appendix, at pp. 129a-140a), the majority has constricted 
the coverage of Section 2 by placing an unwarranted 
restriction upon the word “representatives,” in light of 

the purposes of the Voting Rights Act, and the definitions 

of “voting” contained therein. 

Given the identical language in Sections 2 and 5, 

basic tenets of statutory construction require that the 

sections be given identical meaning. Pampanga Sugar Mills 

v. Trinidad, 279 U. S. 211, 217-218 (1929); Atlantic Cleaners 

& Dyers v. United States, 286 U. S. 427, 433 (1932). The two 

sections work in tandem. The only distinction between 

them relates to whether a voting practice may be contin- 

ued or may be implemented. Such a distinction does not 
relate to the application of the two sections to judicial 

elections. If the Fifth Circuit's decision is not reversed, 

then changes in judicial election procedures could be 

prohibited under Section 5, but those identical practices 

could not be eliminated under Section 2. Such an anom- 

aly cannot be within the intent of Congress to “rid the 

   



13 

country of racial discrimination in voting.” South Carolina 

v. Katzenbach, 383 U. S. 301, 315 (1966). 

Further, the recent ruling in Brooks may well lay to 

rest the contention that Section 2 of the Voting Rights Act 

does not apply to judicial elections. One of the questions 

presented in the jurisdictional statement in Georgia State 

Board of Elections v. Brooks, supra, was “Whether the Vot- 

ing Rights Act Should be Construed to Apply to the 

Election of Judges?” By affirmance, the Supreme Court 

has “rejected the specific challenges presented in the 

statement of jurisdiction” and “prevents lower courts 

from coming to opposite conclusions on the precise issues 

presented and necessarily decided by those actions.” 

Mandel v. Bradley, 432 U. S. 173, 176 (1977). 

In addition to being contrary to the interpretation of 

the Voting Rights Act by the Supreme Court, the action of 

the Fifth Circuit is contrary to the will of Congress, as 

expressed in the legislative history and reaffirmed by this 

Court, that the Act have the “broadest possible scope.” 

Allen v. State Board of Elections, 393 U. S. 544, 566-567, 89 S. 

Ct. 817, 22 1..Ed.2d 1 (1969). 

By ignoring the teachings of Haith and now Brooks, 

and the intent of Congress, the Fifth Circuit's en banc 

ruling has carved out an exception to the coverage of the 

Voting Rights Act which will deny thousands of minority 

voters an equal opportunity to vote for judges of their 

choice in an election system free of discriminatory ele- 
ments. If the decision of the Fifth Circuit is allowed to 

stand, then the law will be that discrimination in voting 

will not be tolerated, except in the election of judges. This 
Court is called upon to correct this blatant denial of  



  

14 

minority voting rights and to effect the will of Congress 

that the nation’s electoral systems be free of discrimina- 

tion. 

II. 

There Is A Conflict Between the Fifth and Sixth Circuits 

The decision of the Fifth Circuit in this case, which 

held that the system for electing judges is not amenable 

to a vote dilution challenge under the amended Section 2 

of the Voting Rights Act, is directly contrary to the deci- 

sion of the Sixth Circuit in Mallory v. Eyrich, 839 F. 2d 275 

(6th Cir. 1988). At issue there was the county wide elec- 

tion of judges in a merged municipal (Cincinnati) and 

county (Hamilton County, Ohio) court system. The Sixth 

Circuit held that claims of vote dilution were covered by 

Section 2 of the Voting Rights Act, and remanded the case 
for further proceedings. 

In reaching contrary conclusions, each court relied 

upon a set of principles, which, although the same, lead 

to contrary legal conclusions. 

Analysis of the Conflict 

1. Judges Are “Representatives” for Purposes of 
the Voting Rights Act. 

Both decisions examine the use of the word “repre- 

sentatives” in the language of the amended Section 2, 42 

U.S.C. 1973: 

(b) A violation of subsection (a) of this section 
is established if, based on the totality of circum- 
stances, it is shown that the political processes 

   



15 

leading to nomination or election in the State or 
political subdivision are not equally open to 
participation by members of a class of citizens 
protected by subsection (a) of this section in that 
its members have less opportunity than other 
members of the electorate to participate in the 
political process and to elect representatives of 
their choice. (emphasis added). 

The majority in the Fifth Circuit concluded that Con- 

gress specifically chose a word, “representative,” that had 

consistently been interpreted not to include the judiciary. 

They relied principally upon reapportionment cases 

which held that one-person, one-vote rules do not apply 

to the judiciary. LULAC, 914 F. 2d at 626, n. 9. (Appendix, 

at pp. 16a-17a). The majority then reasoned that since 

judges are not representatives for numerical apportion- 

ment purposes, then the addition of the word “represen- 

tative” to the amended Section 2 prevents any claim of 

vote dilution from being made, even though other parts 

of Section 2 may apply to judicial elections. (Appendix, at 

pp. 24a-27a). 

The Sixth Circuit took a broader view and interpreted 

“representative” to be inclusive of the judiciary under the 

reasoning that the Voting Rights Act is intended to rem- 

edy all discrimination in voting, and that the 1982 amend- 

ments were intended to expand the Act, not restrict it. 

That Court relied upon the definition of “voting” in the 
Act itself, 42 U.S.C. 1973.1 {c)(1); 

The terms “vote” and “voting” shall include all 
action necessary to make a vote effective in any 
primary, special, or general election, including, 
but not limited to, registration, listing pursuant 
to this Act, or other action required by law  



  

  

  

16 

prerequisite to voting, casting a ballot, and hav- 
ing such ballot counted properly and included 
in the appropriate totals of votes cast with 
respect to candidates for public or party office 
and propositions for which votes are received in 
an election. 

As a result the court determined that judges were “candi- 

dates for public . . . office,” and, therefore, the system 

under which they are elected is subject to a dilution claim 

under the Voting Rights Act. 

Following this Court’s rule of statutory interpretation 

that the legislative history is the authoritative source for 

ascertaining Congress’ intent in amending the Voting 

Rights Act, Thornburg v. Gingles, 478 U. S. at 43, n. 7, the 
Sixth Circuit noted that the terms “representatives,” “can- 

didates,” and “elected officials” are used interchangeably 

throughout the text.” 

As a result, the Sixth Circuit determined that “there 

is no basis in the language or legislative history of the 

1982 amendment to support a holding that use of the 

word ‘representative’ was intended to remove judicial 

elections from the operation of the Act,” Mallory v. Eyrich, 

  

7 a. Senate Report No. 417, at 16: “elected officials;” 

b. Ibid., at p. 28: “Section 2 protects the right of minorities 
to elect candidates of their choice;” 

c. Ibid., at p. 30: “opportunity to . . . elect candidates of 
their choice;” 

d. Ibid, at p. 31: “ . . . elect candidates of their choice,” 

e. Ibid, at p. 67: “ . . . elect candidates of their choice,” 

f. Ibid., at p. 193: Additional Views of Senator Dole: 
. equal choice of electing candidates of their choice.” 4" 

   



17 

839 F. 2d 278-281. Thus the judicial election system in 

Ohio was subject to a Section 2 attack. 

2. The Non-applicability of One-Person, One-Vote 
Principles to Judicial Election Systems Does 
Not Foreclose a Vote Dilution Claim 

It has been held that one-person, one-vote principles 

do not apply to judicial districts. Wells v. Edwards, 347 F. 

Supp. 453 M. D. La. 1972) aff'd, 409 U. S. 1095 (1973), The 

circuits differ as to whether this principle can be 

extended to the question of coverage by the Voting Rights 

Act. 

The Sixth Circuit specifically rejected this extension 

stating that one-person, one-vote principles address an 

equal protection problem under the Fourteenth Amend- 

ment, whereas analysis of a Section 2 claim involves the 

construction of an act of Congress outlawing racial dis- 

crimination in voting. Mallory v. Eyrich, 839 E. 2d 277-278. 

The majority of the Fifth Circuit held that vote dilu- 

tion claims were based upon one-person, one-vote princi- 

ples, and therefore if the former did not apply to the 

judiciary, then neither could the latter. LULAC, en banc, 

914 F. 2d at 627-628. (Appendix, at pp. 20a-24a). However, 

the concurrence argued that vote dilution cases against 

the judiciary are not precluded by one-person, one-vote 

principles. They reasoned that racial and non-racial acts 

by the state that deny voting strength are not legally the 

same: one is facially neutral in the matter of race; the 

other rests on the concern of submerging the voting 

strength of minorities by the combined force of bigotry  



  

  

18 

and election methods. LULAC, en banc, Higginbotham, 

concurring, 914 FE. 2d at 643. (Appendix, at pp. 80a-82a). 

3. The Interpretation of the Voting Rights Act by 
the Attorney General Is Authoritative 

As this Court has noted in United States v. Board of 

Commissioners of Sheffield, Ala., 435 U. S. 110, 131, 98 S. Ct. 

965, 55 L. Ed. 2d 148 (1978), interpretation of the Voting 

Rights Act by the Attorney General constitutes a compel- 

ling argument “especially in light of the extensive role the 

Attorney General played in drafting the statute and in 

explaining its operation to Congress.” 

At the request of the Fifth Circuit, the present Attor- 

ney General filed an amicus brief before the en banc court, 

and sent his Assistant in charge of the Civil Rights Divi- 

sion to personally argue this case to emphasize his con- 

tention that “The United States has consistently 

interpreted the coverage language of Section 2 and the 

almost identical language in Section 5 to apply to the 

election of all judges (citations omitted).” Supplemental 

Brief for the United States as Amicus Curiae, filed June, 

1990, in 90-8014, LULAC, et al. v. Mattox, et al. 

Contrary to Sheffield, the en banc Fifth Circuit charac- 

terized the viewpoint of the Attorney General that Sec- 

tion 2 of the Voting Rights Act covers judicial elections as 

one of a “scatter of birdshot contentions,” LULAC, en 

banc, 914 F. 2d at 630, (Appendix, at p. 30a), and dis- 

missed the Attorney General's interpretation without 

analysis. 

   



19 

The Sixth Circuit, however, accorded due recognition 

to the view of the Attorney General that Section 2 of the 

Voting Rights Act applies to judicial elections. Mallory v. 

Eyrich, 839 P. 2d at 281.8 

The Conflict Involves an Important Question of Funda- 
mental Rights 

Cases involving judicial elections have been heard or 

are pending in several jurisdictions. Until the Fifth Cir- 

cuit’s decision in LULAC, no circuit court and no trial 

court, without being reversed, had held that Section 2 of 

the Voting Rights Act does not apply to vote dilution 

claims involving judges.® Unless resolved by this Court, it 

is obvious that there will be an important and recurring 

conflict involving the basic right to vote. Given the 

  

8 Although not concerned with judicial elections, the Elev- 
enth Circuit has also affirmed that “[n]Jowhere in the language 
of Section 2 nor in the legislative history does Congress condi- 
tion the applicability of Section 2 [of the Voting Rights Act] on 
the function performed by an elected official.” Dillard v. 
Crenshaw County, 831 F. 2d 246, 250 (11th Cir. 1987). 

® Mallory v. Eyrich, 839 F. 2d 275 (6th Cir. 1988) 
Chisom v. Roemer 853 F. 2d 1186 (5th Cir. 1988) 
Clark v. Edwards, 725 F. Supp. 285 (M. D. La. 1988) 
Rangel v. Mattox, (5th Cir. No. 89-6226) 
Nipper v. Martinez, No. 90-447-Civ-J-16 (M. D. Fla. 1990) 
SCLC v. Siegelman, 714 F. Supp 511 (M. D. Ala. 1989) 
Brooks v. State Bd. .of Elec, 111 S. Ct. 288 (1990) 

Hunt v. Arkansas, No. PB-C-89-406 (E. D. Ark. 1989) 

Williams v. St. Bd. of Elec., 696 F. Supp. 1563 (N. D. Il. 
1988) 
Martin v. Allain, 658 F. Supp. 1183 (S. D. Miss. 1987) 
Alexander v. Martin, No. 86-1048-CIV-5 (E. D. N. C.) 

LULAC v. Texas, No. B-89-193 (S. D. Tex. 1989)  



    

20 

number of cases pending and the fundamental nature of 

the issue, it would be intolerable to allow this conflict to 

continue unresolved. 

The conflict between the Fifth and Sixth Circuit's 

interpretation of the coverage of the Voting Rights Act as 

it applies to judicial elections should be resolved by this 

Court. 

  

a 
v 

CONCLUSION 

For the above reasons, this Court should grant the 

petition for a writ of certiorari to the United States Court 

of Appeals for the Fifth Circuit. 

Respectfully submitted, 

*WiLLiaM L. GARRETT 

BrenpAa HurL THOMPSON 

8300 Douglas, Suite 800 
Dallas, TX 75225 
214/ 369-1952 

Roranpo L. Rios 

201 N. St. Mary’s, Suite 521 
San Antonio, Tx 78205 

512/ 222-2102 

Attorneys for Petitioners 
LULAC, ¢ al. 

Texas RuraL LecaL Ap, INc. 

Davip HALL 

259 S. Texas 

Weslaco, TX 78596 
512/ 968-6574 

   



21 

SusaN FINKELSTEIN 

201 N. St. Mary's, Suite 624 
San Antonio, TX 78205 
512/ 222-2478 

Attorneys for Petitioner 
Christina Moreno 

*Attorney of Record for 
Petitioners LULAC, et al. 

*EpwarDp B. Crourman III 
3301 Elm St. 
Dallas, TX 75226 
214/ 939-9222 

E. Brice CUNNINGHAM 

777 S. R. L. Thornton Fwy. 
Dallas, TX 75203 
214/ 428-3793 

Attorneys for Petitioners 
Jesse Oliver, et al. 

*Attorney of Record for 
Petitioners Jesse Oliver, et al.