Plaintiff-Intervenor Houston Lawyers' Association's Pre-Trial Brief

    IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, 
(LULAC), ef al., 

PLAINTIFFS, 

7 No. MO-88-CA-154 

JAMES MATTOX, Attorney General of the 
State of Texas, et al., 

DEFENDANTS. 

PLAINTIFF-INTERVENORS HOUSTON IAWYERS’ ASSOCIATION’S 
PRE-TRIAL BRIEF 
  

  

This case involves a challenge by Black and Hispanic 

plaintiffs to the use of an at-large system of electing district 

judges in ten counties in Texas. Plaintiff-intervenors Houston 

Lawyers’ Association, et. al specifically allege that the at 

large system of electing district judges in Harris County, Texas 

dilutes the voting strength of Black voters, in violation of 

section 2 of the Voting Rights Act, as amended, 42 U.S.C. §1973, 

the Fourteenth and Fifteenth Amendments of the Constitution, and 

42 U.S.C. §1983. 

I. The Applicable Legal Standard 
  

Section 2 of the Voting Rights Act of 1965, as amended, 

provides: 

a) No voting qualification or prerequisite to voting, 
standard, practice or procedure shall be imposed or applied by 
any state or political subdivision in a manner which results in a 

 



  

denial or abridgment of the right of any citizen of the United 
States to vote on account of race or color.... 

42 U.S.C. 81973 

The Voting Rights Act further provides: 

b) A violation of subsection (a) of this section is esta- 
blished if, based on the totality of circumstances, it is shown 
that the processes leading to nomination or election in the 
state or political subdivision are not equally open to participa- 
tion by members of a class of citizens protected by section (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... 

42: J.8.C. $1973. 

Since section 2 of the Voting Rights Act "necessarily 

embraces judicial elections within its scope," the well-developed 

~ standards for determining a dilution claim are applicable to this 

case. Chisom v. Edwards, 839 F.2d 1056, 1061 (5th Cir. 19088),   

rehearing and rehearing en banc denied, 853 F.2d 1186 (5th Cir.   

1988) cert. denied, 57 U.S.L.W. 3345 (Nov. 14, 1988). See also,   

  

Martin wv. Allain, 658 F.Supp 1183, 1200 (S.D. Miss. 1987); 

Mallory v,. Byrich, 839 F.2d 275 (6th Cir. 1988).   

The Supreme Court has articulated three central elements of 

a minority’s group’s cause of action in a section 2 challenge: 

first, the minority group must show that it is sufficiently large 

and geographically compact to constitute a majority in a single 

member district; second, the minority group must show that it is 

politically cohesive, and that its members tend to support the 

same candidates; third, it must show that the white majority 

usually votes sufficiently as a bloc to result in the defeat of 

the minority group’s preferred candidates. Thornburg v. Gingles, 
  

 



  

478 U.S. 30, 50-51 (1986). Most importantly, both the legisla- 

tive history and the Supreme Court emphasize the need for courts 

to engage in an intensely fact-specific appraisal when assessing 

  

the legality of a challenged electoral scheme. See, S.%., 

Gingles, 478 U.S. at 79; Senate Report No. 97-417, 97th Cong., 

p. 30 (1982). 

A. Plaintiffs’ Section 2 "Results" Claim 

In 1982, Congress amended section 2 of the Voting Rights Act 

to make clear that plaintiffs need not show that challenged 

voting practices are the product of purposeful discrimination. 

Thornburg v. Gingles, 478 U.S. at 35. Instead, the Supreme Court   

deemed the relevant question to be whether, 

based on the totality of the circumstances, it is 
shown that the political processes leading to 
nomination or election in the State or political 
subdivision are not equally open to participation 
by members of a class of a citizens protected by 
subsection (a) 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. 42 U.S.C. 
'§1973 (b). 

478 U.S. at 36. 

The "results" test recognized by the court in Gingles, and 

by Congress in its amendments to the Voting Rights in 1982, 

reflects the view that an intent test "asks the wrong question... 

[i]f an electoral system operates today to exclude blacks or 

Hispanics from a fair chance to participate, then the matter of 

what motives were in the official’s mind 100 years ago is of the 

‘most limited relevance." Senate Report at 36. 

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Gingles indicates that the Senate factors are a significant 

portion of plaintiffs case. The Senate Report accompanying the 

1982 amendments to the Voting Rights Act list several "[t]ypical 

factors" that are probative to show that a violation of this 

"results test" exists. These factors are: 

1. the extent of any history of official discrimi- 
nation in the state or political subdivision that 
touched the right of the members of the minority group 
to register, to vote, or otherwise to participate in 
the democratic process; 

2. the extent to which voting in the elections of the 
state or political subdivision is racially polarized: 

3. the extent to which the state or political sub- 
division has used unusually large election districts, 
majority vote requirements, anti-single shot provi- 
sions, or other voting practices or procedures that 
may enhance the opportunity for discrimination 
against the minority; 

4. 1if there is a candidate slating process, whether 
the members of the minority group have been denied 
access to that process; 

5. the extent to which members of the minority group 
in the state or political subdivision bear the effects 
of discrimination in such areas as education, employ- 
ment and health, which hinder their ability to parti- 
cipate effectively in the political process; 

6. whether political campaigns have been characterized 
by overt or subtle racial appeals; 

7. the extent to which members of the minority group 
have been elected to public office in the jurisdiction. 

Additional factors that in some cases have had probative 
value as part of plaintiffs’ evidence to establish a 
violation are: 

whether there is a significant lack of responsiveness on the 
part of elected officials to the particularized needs of the 
members of the minority group. 

 



v 

whether the policy underlying the state or political sub- 
division’s use of such voting qualifications, prerequisite 
to voting, or standard, practice or procedure is tenuous. 

Senate Report at 28-29. The Report goes on to make clear that 

"[t]he cases demonstrate, and the Committee intends that there is 

no requirement that any particular number of factors be proved, 

or that a majority of them point one way or the other." Id. at 

29; see, e.gqg., Carrollton Branch of NAACP v. Stallings, 829 F.2d   

1547,1554 (11th Cir. 1987). 

In reviewing the Senate Factors and determining the weight 

to be accorded to them, the Supreme Court held that "the most 

important Senate Report factors . . . are the ’extent to which 

members of the minority group have been elected to public office 

in the jurisdiction’ and the ‘extent to which voting in the 

elections of the state or political subdivision is racially 

polarized.’" Gingles, 478 U.S. at 48, n.15. The other factors, 

the Court stated, "are supportive of, but not essential to, a 
  

minority voter’s claim." Id. (emphasis in original). 

B. Plaintiff-Intervenors’ Intent Claim 

Plaintiff-intervenors have raised both constitutional and 

statutory claims regarding the reasons for the enactment and 

maintenance of the at large method of electing district judges in 

Harris County. This Court is obliged to decide the case on 

statutory grounds, if possible, before reaching the 

constitutional issues. Escambia v. McMillan, 466 U.S. 48 (1984).    



The standard for plaintiff-intervenors’ Fourteenth and 

Fifteenth Amendment claims is set out in Rogers v. Lodge, 458 
  

U.S. 613 (1982), and this Court may infer "intent" by using " the 

normal inferences to be drawn from the foreseeability of 

defendant’s actions," See Senate Report at p.27, n.108 and at p. 

37,.n.136. Plaintiff-intervenors therefore, need not show that 

the challenged actions were taken ‘because they would have a 

discriminatory effect. 

In Rogers, the Court noted that the factors identified in 

Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973), aff'd on   

  

other dgrounds sub nom. East Carroll Parish School Board v.   

Marshall, 424 U.S. 636 (1976) (per curiam) =-- which are the   

factors identified in the Senate Report, see Senate Report at 28, 

n. 113 -- provided substantial circumstantial evidence to support 

  

a finding of discriminatory intent. See Rogers, 458 U.S. at 624- 

27. Accordingly, this Court in assessing plaintiff-intervenors’ 

intent claims, should rely on the evidence of the Senate factors. 

In addition, there is significant evidence of racial motivation 

for the enactment and maintenance of the at large configuration 

of Harris County’s district judge. 

Plaintiff-Intervenors Establish the Three Central Elements 
of their Section 2 Claim 
  

  

A. Plaintiff-Intervenors Established that Blacks in 
Harris County are Sufficiently Large and Geographically 
Compact to Constitute a Majority in Single Member District 

Plaintiff-intervenors will present both lay and expert 

testimony demonstrating that Blacks in Harris County are suffi- 

6  



  

. 

ciently large and geographically compact to constitute a 

majority in a single member district. 

Plaintiff-intervenors’ expert, Mr. Jerry Wilson, who has 

drawn numerous districting plans currently in effect throughout 

the country, found that 13 majority Black single member districts 

could be fairly drawn in Harris County. Each of these districts 

would be majority Black in total population, voting age popula- 

tion and estimated registered voter population. 

Although the one person-one vote principle does not apply to 

judicial districts, Wells v. Edwards, 347 F.Supp. 453 (M.D. la.   

1972), aff’d, 409 U.S. 1095 (1973), nor does the Texas state 

Constitution require that election districts for the Supreme 

Court be equally apportioned by population, plaintiff-intervenors 

proposed districts were drawn in accordance with this principle. 

The court need not at this liability phase, address the 

precise contours of a proper division of Harris County into 

single member districts. This is particularly true where, as 

here, plaintiff-intervenors have alternatively sought relief in 

the form of modified at large voting systems such as limited or 

cumulative voting. See, Complaint of Plaintiff-intervenor at Pp. 

11, paragraph 42. 

B. Plaintiff-intervenors Establish the Existence of 
Racially Polarized Voting in Harris County, TX 

"Evidence of racially polarized voting ’is the linchpin of a 

section 2 vote dilution claim,’" Westweqo Citizens for Better 
  

  

Government, et al., v. City of Westweqo, Civ. Ac. 87-3761 at P15 

7 

 



  

(5th Cir. 1987) (three-judge court) Slip Op. at 15, quoting 

Citizens For a Better Gretna v. City of Gretna, 834 F.2d 496, 499 
  

(5th Cir. 1987). Moreover, evidence of racially polarized voting 

"is relevant to establishing two of the three elements set forth 

in the Gingles decision -- the political cohesiveness of the 

minority group and the ability of the white majority usually to 

defeat the minority’s preferred candidate. " Id. at 51, <iting 

Gingles, 478 U.S. 30, 56 (1986) and Campos Vv. City of Baytown, 
  

840 F.2d 1240,1244 (5th Cir. 1989). 

Dr. Richard L. Engstrom, a nationally recognized expert in 

the quantitative analysis of rac¢ial voting patters, and whose 

scholarly writings were cited with approval in Gingles, 478 U.S 

at 53, n. 20, 55 & 71, analyzed 17 Harris County district judge 

election contests involving Black and white candidates during the 

period 1980 to 1988. 

Dr. Engstrom used the analytic techniques -- bivariate 

ecological regression and extreme case analysis -- recognized as 

standard in the literature and approved by the Supreme Court in 

Gingles, 478 U.S. at 53, n. 20. See also, Citizens for a Better 
  

Gretna v. City of Gretna, 636 F.Supp. 1113 (E.D. 1a. 1986),   

gff’'d, 834 P.24 496 (5th Cir. 1987); Martin v. Allain, 658 
  

F.Supp. at: 1193. In each of the seventeen elections, Dr. 

Engstrom’s analysis revealed a clear pattern of racially 

polarized voting, with Blacks overwhelmingly supporting Black 

candidates and white voters supporting the opposing white 

candidates in 16 out of the 17 elections. 

 



  

Dr. Engstrom's focus on elections in which a Black candidate 

was opposed by a white candidate is well supported, particularly 

when, as in this case, Black voters almost always preferred the 

Black candidate in a contest involving both Black and white 

candidates. See Gingles, 478 U.S. at 57, "Ne 25. See also, 
  

  

Citizens for a Better Gretna v. Gretna, 636, F.Supp. at 1133; 
  

Citizens for a Better Gretna v. Gretna, 834 F.2d at 503; McNeil wv. 
  

  

City of Springfield, 658 F.Supp. 1015, 1030 (c.D. Ill, 1987); 
  

Smith v. Clinton, 687 F.Supp. 1310 (E.D. Ark. 1988). As the trial 
  

court noted in Clark v. Edwards, Civ. Ac. No. 86-435 (M.D. La. 
  

Aug. 15, 1988), quoting East Jefferson Coalition v. Jefferson 
  

Parish, 691 F.Supp. 991, 1001 (E.D. La. 1099), "[t]he fact that 

Blacks and whites prefer the same candidates in white only 

elections, but different candidates when Blacks enter the race is 

strong evidence that racially polarized voting exists." Slip Op. 

at 31. 

Defendants' attempt to rebut the plaintiff-intervenors' clear 

evidence of racially polarized voting by asserting that factors 

other than race explained the lack of success by Black candidates 

is unpersuasive. Specifically, defendants argue that factors such 

as party voting and not race are determinant factors in district 

judge elections in Harris County. The court in Gingles recognized 

however, that consistent with congressional intent "it is the 

difference between the choices made by blacks and whites - not the 
  

reasons for that difference -- that results in blacks having less 

 



  

opportunity than whites to elect their preferred representatives." 

Gingles, 478 U.S. at 63 (emphasis in original). 

An electoral system is not immunized from section 2 attack 

merely because it utilizes partisan elections, or because members 

of one race belong to one political party in greater numbers than 

another. By attempting to resuscitate the old "intent" standard, 

the defendants in this case seek to do exactly what the North 

Carolina defendants in Gingles v. Edminsten were unsuccessful in 
  

doing. 

The defendant's theory that other factors such as incumbency, 

campaign spending, Bar Association poll results and newspaper 

endorsements were determinant factors in district judge elections 

is equally unpersuasive. Attempts to show that particular 

candidates preferred by the minority community are not "viable 

candidates" based on these factors, is contrary to this circuit's 

interpreation of section 2. A "viable candidate is one which the 

minority group sponsors," Campos Vv. City of Baytown, 840 F.2d 
  

1240, 1245 (5th Cir. 1988). 

Finally, defendant's may not rely on the aberrant success of 

a few Black candidates to rebut the plaintiff-intervenors' clear 

showing of racially polarized voting. "Gingles, . . . cautions 
  

against finding a lack of racially polarized voting where the 

successs of a minority candidate can be attributed to special 

circumstances." Collins v. City of Norfolk, Virginia, Civ. Ac. 
  

No. 88-3950 (4th Cir. Aug. 18, 1989). Slip Op. at 20. Gingles 

specifically identifies incumbency, and the absence of an 

10 

 



  

opponent as special circumstances that may accompany minority 

electoral success. 478 U.S. at 57. One or both of these 

factors, as well as other special circumstances,l are present in 

almost every general district judge election won by a Black 

candidate in Harris County since 1980. 

C. Plaintiff-intervenors Establish that Blacks in 
Harris County are Politically Cohesive 

As discussed above, the level of racial polarization in 

Harris County demonstrates the presence of cohesiveness among 

Black voters. In 16 of the 17 outcome determinative elections 

identified in Plaintiff-intervenors’ Exhibit 1, Black candidates 

were the overwhelming choice of Black voters, receiving no less 

than 95% of the vote of the votes cast by Blacks in Harris 

County. 

III. Additional Senate Factors 

A. History of Discrimination 

Texas’ history of official discrimination touching upon the 

right to vote cannot be seriously disputed. As this Court noted 

in an extensive appendix to its decision in LULAC v. Midland 
  

  

Independent School District, 648 F.Supp. 596 (W.D. Tex. 1986), 

aff’d 812 F.2d 1494 (5th Cir. 1987), Texas has a constitutional 

and statutory history replete with racially discriminatory 

  

lThe court in Gingles notes that the special circumstances 
identified in that case are "illustrative, not exclusive." 478 
UeS, at 57, Ne 26. 

11 

 



provisions and codes which required among other things, the 

payment of a poll tax as a prerequisite to voting, segregated 

schools for Black and white students, segregated rail cars, 

buses, libraries, orphanages, employee bath facilities, parks. 

Democratic primary elections in Texas were restricted to whites 

in Texas until a Black resident of Houston successfully 

challenged this discriminatory practice before the Supreme Court 

of the United States in 1944. Smith v. Allwright, 321 U.S. 649 
  

(1944). No law school in Texas admitted Black students until 

that practice was challenged, resulting in the Supreme Court’s 

decision in Sweatt v. Painter, 339 U.S. 629 (1950). In Harris   

County, the Houston Independent School District, which had been 

challenged as segregated 25 years ago, was not declared unitary 

until 1981. See Houston Independent School District v. Ross, 699   

F.2d 218 (5th cir. 1983). 

This Court may take judicial notice of findings by other 

courts with regard Texas’ history of official discrimination. 

Fed. R. Evid. 201; see United Steelworkers v. Weber, 443 U.S.   

193, 198, n. 1 (1979) (findings of discrimination in craft unions 

were so numerous as to be a proper subject for judicial notice). 

B. Texas’ Use of Voting Practices and Procedures that 
Enhance the Opportunity for Discrimination 

This case involves all three practices expressly identified 

by the Senate Report and many of those identified in Gingles as 

"potentially dilutive electoral devices." 478 U.S, rat" 56, 

Harris County as a judicial electoral district is unusually 

12  



  

large. It is the largest judicial electoral district by popula- 

tion, and has the greatest number of district judges of any 

county in the State. 

District judge elections in Harris County are subject to a 

primary election majority vote | veunirement. Moreover, the 

staggered terms and numbered place system for district judges in 

the county is the functional equivalent of an "anti-single shot" 

provision. These feature enhance the discriminatory potential of 

the at large electoral system in Harris County. 

C. The Extent to Which Members of the Minority Group 
Bear the Lingering Effects of Discrimination 

Both the Senate Report and the courts have acknowledged the 

role "that disproportionate educational, employment, income level 

and living conditions arising from past discrimination" have on 

minority political participation. Senate Report No. 417, 9th 

Cong., 2d Sess. 3, at 29, n. 114. See also, White v. Regester, 
  

37 L.Ed.2d 314, 325 (1973); Major v. Treen, 574 F.Supp. 325, 341   

(B.D. la. 1983). 

The Black population in Harris County continues to bear the 

effect of racial discrimination in such areas as education, 

employment and health. These effects hinder its ability to 

participate in the political process on an equal basis with the 

white population. The 1980 Census population reports reveal a 

striking disparity in the socioeconomic indicators for Blacks and 

whites. According to the 1980 Census for example, the median 

13 

 



  

income for white families in Texas was $20,955. The median 

income for Black families in Texas was $13,042. 

D. Racial Appeals in Campaigns 

Former Black candidates for district judge in Harris County 

will testify that given the nature of campaigning in the county, 

voters are aware of the race of judicial candidates. In the 

racially polarized atmosphere of Harris County, this awareness of 

race in itself operates as a racial appeal. See, Anderson V. 
  

Martin, 375 U.S. 399 (1964). Race continues to play such a role 

in elections in Harris County, that some Black candidates elect 

not to use their photographs in campaign literature prior to 

election day. 

E. The extent to which members of the minority group 
have been elected to public office in the 
jurisdiction 

Of the 59 district judges currently serving Harris County, 

only 3 are Black. In fact no more than three district judges 

have ever served Harris County at one time, despite the fact that 

at least one Black candidate has run in each and every district 

judge election since 1980. 

F. The tenuousness of the policy underling the use and 
maintenance of the at large system for the election 
of district judges in Texas 

The fact that a challenged practice has been used since the 

turn of the century has never been thought to immunize that 

practice from challenge. See, Loving -v. Virginia, 388 U.8. 1 
  

14 

 



  

. 

  

(1967); Brown v. Board of Fducation, 347 U.8. 1 (1954). The 

legislative history specifically addresses this issue: 

Under the Voting Rights Act, whether a discriminatory 
practice or procedure is of recent origin affects only 
the mechanisms that trigger relief. . . The 
lawfulness of such a practice should not vary by when 
it was adopted, i.e., whether it is a change. 

H.R. Rep. No. 97-227, p.28: (1982). See, Citizens for a Better 
  

Gretna v. City of Gretna, 636 PF. Supp. 1113 (E.D. la. 1986),   

aff’d, 834 F.2d 496 (5th Cir. 1987) (practice adopted in 1913); 

Perkins v. City of West Helena, Ark., 675 F.Supp. 201 {8th Cir.   

1082), aff’d, 459 U.S. 801 (1982) (practice in effect since 

1920); Bolden v. City of Mobile, Ala., 542 F.Supp. 1050 {S.D.   

Ala. 1982) (since 1911); McNeil v. City of Springfield, 658   

F.Supp. 1015 (C.D. "111. 1987), app. dism’d, 818 F.2d 565 (7th   

Cir. 1987) (since 1912); Gingles, 478 U.S. at 52, n. 9. 

Moreover, the fact that a change in the current system might 

require even a costly reorganization of the state’s judicial 

administrative’ structure "is not a sufficient ground for 

maintain-ing an otherwise flawed system." Westwego Citizens for 
  

a Better Government v. City of Westwego, Slip Op. at "23.   

Conclusion 

Based on the totality of the circumstances in this case, 

including the existence of racially polarized voting, political 

cohesion, as well as the history of discrimination that continues 

to impede the ability of Blacks to participate in the political 

process, the presence of discriminatory voting practices that 

15 

 



  

v 

enhance the opportunity to discriminate, the socio-economic 

conditions under which Blacks and whites currently exist, the 

lack of Black electoral success, and the tenuousness of the 

State’s policy, the Court should hold that the use of an at large 

county wide election system for the election of district judges 

in Harris County, Texas denies Black voters an equal opportunity 

to participate in the electoral process, and elect representa- 

tives of their choice, in violation of section 2 of the Voting 

Rights Act of 1965. 

Respectfully submitted, 

widen A HAL 
JULIUS Lf BH HAMBERS | 
SHERRILY IFILL 

99 Hudson Street, 16th Floor 
New York, New York 10013 
(212) 219-1900 

  

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

Austin, Texas 78701 
(512) 320-5055 

Attorneys for Plaintiff- 
Intervenors Houston Lawyers’ 
Association 

16 

 



  

CERTIFICATE OF SERVICE 

I hereby certify that on this 14th day of September, 

Houston Lawyers’ Association’s 

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

Rolando L. Rios 
Southwest Voter Registration 

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

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

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

Cloutman, P.C. 
3301 Elm 

Dallas, TX 75226-9222 

Jim Mattox 
Mary F. Keller 
Renea Hicks 
Javier Guajardo 
Attorney General’s Office 
1401 Colorado 
Supreme Court Building, 7th Floor 
Austin, TX 78701 

Pretrial Brief was 

Federal Express to counsel of record in this case, as follows: 

J. Eugene Clements 
John E. O’Neill 
Evelyn V. Keys 
Porter & Clements 

1989, a 

true and correct copy of the foregoing Plaintiff-intervenors 

mailed by 

700 Louisiana, Suite 3500 
Houston, TX 77002-2730 

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

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

Austin, TX 78701 

Robert H. Mow, Jr. 

Hughes & Luce 
2800 Momentum Place 
1717 Main Street 
Dallas, TX 75201 

Jill J Ohi 
  

/ Sherrily A v 
Attorney ne is -Intervenors 
Houston Lawyers’ Association