Plaintiff/Intervenors Jesse Oliver, et al. (Dallas County) Post-Trial Brief

    | | 

. ® 
MuLLINAX, WELLS, BAAB & CLouTMAN, P.C. 

ATTORNEYS AT LAW 

3301 ELM STREET/DALLAS TEXAS 75226-1637 

  

EDWARD B. CLOUTMAN, III PHONE (214) 939-9222 
Board Certified-Labor Law September 25, 1989 METRO 263-1547 Texas Board of Legal Specialization TELECOPIER (214) 939-9229 

EXPRESS DELIVERY 
  

Mr. John D. Neal 

U.S. District Deputy Clerk 
200 E. Wall 
Midland, Texas 79702 

RE: LULAC Council #4434, et al. vs. 
Mattox, et al. 

Case No. MO-88-CA-154 

Dear Sir: 

Enclosed please find an original and two copies of 
Plaintiff/Intervenors Jesse Oliver, et al. (Dallas County) Post- 
Trial Brief in regard to the above referenced matter. 

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

By copy of this letter, I am forwarding copies of this 
document to counsel of record. 

Very truly yours, 

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

  

  

/klp 
Encl. 

cc: Mr. Renea Hicks 
Ms. Susan Finkelstein 
Ms. Gabrielle K. McDonald 
Mr. J. Eugene Clements 
Mr. Rolando L. Rios 

Mr. David C. Godbey 
Mr. William L. Garrett 
Ms. Sherrilyn A. Ifill 
Mr. Jim Boyle 

0 tnt ren 00. 

 



  

IN THE UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF TEXAS 
MIDLAND-ODESSA DIVISION 

LULAC COUNCIL #4434, ET AL. 

CIVIL ACTION NO. 
VS. 

MO-88-CA-154 

2
 

WA
 
W
A
 

JIM MATTOX, ET AL. 

PLAINTIFF/INTERVENORS JESSE OLIVER, ET AL. 

(DALLAS COUNTY) POST-TRIAL BRIEF 
  

I. Introduction 

This Court permitted intervention of Jesse Oliver, 

Fred Tinsley and Joan Winn White on February 27, 1989, as 

plaintiff/intervenors raising issues of black voters in Dallas 

County, Texas with respect to the election of judges to district 

court in that county. Consistent with the Court's time-tables, 

discovery was taken concerning the Dallas County issues, 

proposed findings and conclusions were proffered by plaintiffs 

and plaintiff/intervenors concerning Dallas County claims, and 

evidence offerred to support same. Those proposed findings are 

incorporated herein by reference and, out of an economy of space 

and time, will not be repeated except by summary inclusion. 

The Court heard evidence regarding the Dallas County 

issues and received plaintiff/intervenors' (Dallas County) 

Exhibits 1 through 35 (with exception of Exhibit 12 which was 

withdrawn). Plaintiff/intervenors for Dallas County suggest 

that this Court should declare the at-large election of Dallas 

County for district judges to be in violation of the Voting 

 



  

Rights Act of 1265, as amended, 42 U.S.C. Section 1973 et seq. 

II. Statement of Facts 

As described in plaintiffs' pleadings before this 

Court, there were 36 district courts authorized for Dallas 

County, all elected at-large on a county-wide basis. A 37th 

court was created as of September 1, 1989. The district courts 

in Dallas County are divided by area of specialization into 

general civil courts, criminal district courts, family law 

courts and juvenile courts. As of September 1, 1989, there were 

13 civil district courts, 15 criminal district courts, 7 family 

law courts and 2 juvenile courts. These specializations and the 

case assignment to such courts is by virtue of Dallas Civil 

District Court Rules 1.l(a), 2.1(a) and 2.1(b), as well as 

Chapter 24, Texas Government Code (D-I Dallas Exhibit 22). 

Dallas County is the second largest county in Texas 

with a July 1, 1985 U.S. Census population of 1,789,400 people, 

of whom 331,600 (18.5%) were black. Elections on a county-wide 

basis in Dallas County are by a population that exceeds that of 

fifteen (15) states. More people are eligible to vote county- 

wide in Dallas for district judges than those who vote for 

governors and United States Senators from those 15 states. 

Dallas County, at-large, is a very large election district (P- 

I Dallas Exhibits 3 and 4). 

 



  

As of 1580, 78.9% of all black citizens of Dallas 

County lived in an area defined by plaintiff/intervenors as the 

"black area", or in precincts which are 50% or greater black in 

population. While almost 80% of the Dallas County black 

population lives in such area, this area is also 86.3% black in 

racial composition (P-I Dallas Exhibit 5). 

Every 90%-or-greater black precinct in Dallas County 

is located within the City of Dallas, save one, which is in the 

City of Grand Prairie (P-I Dallas Exhibit 10). 

In Dallas County, there are 36 precincts which are 90% 

Or greater black in population; there are 29 additional 

precincts which are more than 50% but less than 90% black in 

population. Conversely, there are 197 precincts in Dallas 

County which are 90%-or-greater white. In addition, there are 

138 additional precincts which are between 50% and 90% white in 

population (P-I Dallas Exhibits 6 and 7; see also P-I Dallas 

Exhibit 10). 

In the part of Dallas defined as the "black area" 

precincts, only 2% of the white population resides therein. 

Conversely, in precincts less than 50% black, little more than 

20% of the black population resides therein while over 90% of 

the white population lives in such precincts. 

Dallas County is starkly segregated by race in its 

housing patterns (P-I Dallas Exhibits 8 and 9, see also P-I 

 



  

Pallas Exhibit 10 for a graphic display of such segregation). 

This segregation has not attenuated over time. The 

testimony of Dr. Dan Weiser, together with statistical evidence, 

indicates that the "black area" precincts have not materially 

changed in racial composition from 1960 to 1970, 1970 to 1980 

and from 1980 to 1988. The growth in Dallas County has been 

generally in the white area precincts (P-I Dallas Exhibit 11 

compared to Exhibit 10). 

Black participation in the Republican primary is 

practically nil, while black voter participation in the 

Democratic primary is substantial (P-I Dallas Exhibits 13, 14 

and 15). As indicated, less than 500 black voters have 

participated in any Republican primary from 1982 through 1988. 

The vote in the Republican primary in Dallas is virtually all 

white or at least non-black in composition (testimony of Dr. Dan 

Weiser, P-I Dallas Exhibit 15). 

The Dallas County Republican Party operates as a 

dominant anglo or white slating group for purposes of nomination 

and election of candidates on a county-wide basis in Dallas 

(testimony of Dr. Dan Weiser; corroborated by expert testimony 

from defendants' experts Dr. Del Taebel and Dr. Anthony 

Champagne). The testimony of Dr. Richard Engstrom demonstrated 

that race and party have a very high degree of association, if 

not statistical correlation, in the Republican Party. A 

 



  

Republican vote is a white vote as well as a Republican 

candidate is almost always a white candidate. White voters from 

the Republican primary invariably elect almost completely white 

candidates. 

Concerning judicial races in Dallas County for 

district court seats, no black candidate with the support of the 

black voting populace (that is, that located in the plack area 

precincts) has ever won a contested election for the district 

bench because of the county-wide election system in place. 

Black candidates Joan Winn (White), Fred Tinsley, Ron White and 

Jesse Oliver have all run for district court seats and have 

enjoyed no less than 27% of the vote from the 90% or greater 

black precincts. They faired almost as well in the 50% to 90% 

black precincts, with no candidate listed above receiving less 

than 83% of the vote from those precincts. Each of these 

candidates was overwhelmed by the white vote from the 90% or 

greater white precincts and in each case suffered defeat at the 

hands of the white majority (P-I Dallas Exhibit 16; testimony 

of Dr. Dan Weiser, Dr. Richard Engstrom, Dr. Del Taebel). 

The only black candidates for Dallas district court 

seats who have been successful have enjoyed virtually no support 

from the "black area" precincts, but instead were the candidate 

of choice of the substantial white voting bloc of the Republi- 

can Party voting in the general election (testimony of Dr. Dan 

 



  

Weiser; State LDefendants' Exhibit D-6). 

Another county-wide race was analyzed to determine 

voting patterns of black and white voters in Dallas County. In 

1686, a black candidate for district attorney, Royce West, 

managed to obtain the nomination of his party despite opposition 

of two white or anglo candidates in that primary. However, when 

confronted with his white Republican challenger in the general 

election and despite receipt of well over 90% of the black vote, 

Mr. West lost overwhelmingly to the white vote in favor of his 

opponent, John Vance (P-I Dallas Exhibits 21 and 21-A). 

It is clear then that each black judicial candidate 

who has enjoyed the support of the black area precincts has been 

defeated by a substantial voting bloc of white or anglo voters, 

county-wide, to defeat their candidacy (see P-I Dallas Exhibits 

16, 17,.18, 19, 20 and 22a). 

Each of the unsuccessful black candidates for district 

court seats enjoyed a high number of quality endorsements, ran 

well funded and organized campaigns and in four of the five 

races by such black candidates, they were the appointed 

incumbents for the district courts involved in their unsuccess- 

ful election attempt (testimony of Joan Winn White, Fred 

Tinsley, Ron White and Jesse Oliver). 

Appeals to race have occurred with respect to judicial 

district court races in Dallas County. In 1980, Joan Winn White 

 



  

was confronted with rather raw appeals to racial prejudice by 

her successful opponent, Charles Ben Howell. In 1986, Royce 

West's opponent in the district attorney's race, John Vance, 

resorted to subtle but clear racial appeals in running the 

photograph of Mr. West for the sole purpose of demonstrating Mr. 

West's race in campaign advertising by Vance. Finally, in the 

Republican Primary in 1988, there was an appeal to race by the 

opponent of a black incumbent district judge, Larry Baraka. His 

white female opponent, Brook Busby, campaigned with literature 

pointing out that her opponent was a black Muslum and therefore, 

presumably less qualified than a white Protestant candidate such 

as herself. This racial appeal even lead to the intervention 

Of the Republican county chair, Tom James, who took the 

unprecedented step of actually endorsing a candidate in the 

Republican primary, Larry Baraka (see P-I Dallas Exhibits 29 and 

30, as well as testimony of Joan Winn White, Royce West and 

defendant/intervenor Judge Harold Entz). 

Dallas County is not without its history of election 

difficulties in terms of the Voting Rights Act. Two letters of 

objection were interposed by the United States Department of 

Justice regarding 1982 Dallas County elections, pursuant to its 

powers under the Voting Rights Act and embodied in 28 C.F.R., 

Part 51.0 et seq. A further letter of objection was issued 

regarding conduct in 1988 in Dallas County. 

 



  

The 1982 objections concerned a ballot allocation 

formula which shorted a disproportionate number of black or 

minority voting precincts of voting ballots. Another objection 

in 1982 was directed at the unlawful placement of "warning" 

signs in Dallas County precincts, many of which were the black 

voting areas. Such signs were not authorized by the Dallas 

County Elections Office, by the Secretary of State or by the 

Department of Justice as is required for any change in voting 

procedures under the Voting Rights Act (see P-I Dallas Exhibits 

31 and 32). 

In 1988, as noted above, another objection was 

interposed via the same process by the Department of Justice 

regarding the allocation of absentee voting places. This 

objection had to do with the allocation to anglo areas of 

satellite absentee polling places while placing none in black 

areas. These absentee stations were supposedly to assist in 

implementing the expanded absentee ballot procedure under a new 

Texas law. The Department of Justice findings in this objection 

were that all of the existing branch absentee voting locations 

were in anglo areas. The Department of Justice observed that 

only after protests were raised, did one branch absentee voting 

location become established in a black voting area, and then 

only a few days before the close of absentee balloting (see P- 

I'Dallas Exhibit 33). 

 



  

There are other historical examples of discrimination 

in Dallas County, the vestiges of which linger today. Findings 

in Lipscomb v. Wise, 382 F.Supp. 782 (N.D. Tex. 1975) at 785-   

87, 790; in Graves v. Barnes, 343 F.Supp. 704 (%W.D. Tex. 1972)   

(3 judge court) at 725, fn. 15 and 16, 726-27, concerning voting 

discrimination. Tasby v. Fstes, 342 F.Supp. 945 (N.D. Tex.   

1971) at 947 and Tasby v. Foteg, 517 PF.24 92 (5th Cir. 1975) at 
  

95-97 presented examples of historical discrimination based on 

race in the area of education. 

Election district lines can be drawn to ameliorate the 

dilutive effects of at-large voting in Dallas County. Evidence 

indicates that seven (7) and possibly eight (8) safe or 50%-or- 

greater voting age population districts can be drawn in Dallas 

County where the candidate selected would be candidate of 

preference of the black voting populace within such district 

(see, for example, testimony of Dr. Dan Weiser, P-I Dallas 

Exhibit 34). 

III. Argument 

A. The Gingles Criteria 
  

Black voters are sufficiently large in number and 

geographic concentrated so as to constitute a majority in at 

least one single member district in Dallas County (indeed, 7 to 

8 single member districts can be drawn (see P-I Dallas Exhibit 

34 and plaintiffs' Exhibit D-04). The requirements of Thornburg 
  

 



  

V. Gingles (hereinafter referred to as Gingles), 478 U.S. 30   

(1986) are satisfied with respect to the first test or the 

gingles "1" factor. 

The requirements of Gingles "2" are amply met and 

satisfied by the evidence in this case. A strong relationship 

exists between voting and race notwithstanding partisan voting, 

as testified to by Drs. Engstrom and Weiser. Black voters are 

clearly politically cohesive in that in each election in which 

a black candidate was supported by any measure of the black 

voting area, that candidate received well in excess of 90% (97% 

to 100%) the black voting strength of Dallas County. Dr. Taebel 

(State Defendants Exhibit D-6) indicated similar results in his 

testimony. The tables in Dr. Taebel's exhibits regarding Dallas 

County are, in part, irrelevant or skewed. First, a comparison 

of "white vs. white" elections yields no relevant conclusions 

in this case. Campos v. City of Baytown, 840 F.2d 1240 (5th 
  

Cir. 1988) at 1244-48. Second, Dr. Taebel indicates that one 

successful black candidate in 1988, Larry Baraka, received a 

majority of the black vote. This conclusion is grossly 

misleading, for what Baraka received was 52% of the 500 or so 

black total vote in the Republican primary. 

Dr. Engstrom's hypothetical districts indicate that 

for each time in which plaintiff/intervenors Winn, Tinsley and 

Oliver ran for judicial district seats, they would have handily 

10 

 



  

won each election for a district court seat. Evidence conclu- 

sively establishes that not only is the black electorate of 

Dallas County politically cohesive, it cast almost 100% support 

for each of the plaintiff/intervenors. 

The Gingles "3" factors are established by the 

testimony of Drs. Engstrom and Weiser as well as by the 

testimony of Dr. Champagne. It is clear that the white radority 

in Dallas votes sufficiently as a bloc to enable it to usually 

defeat the black voters' preferred candidate because the black 

voting area is submerged in a predominantly white multi-member 

district. A review of the exhibits regarding voting patterns 

for each of the races in which black voters had the opportunity 

to choose between a black candidate and a white candidate for 

district judge are conclusive evidence of this bloc voting. But 

for the voting patterns of the majority anglo or white voting 

bloc, plaintiff/intervenors Oliver, Tinsley, and Winn would have 

each been elected handily to district seats, as would have Ron 

White, should they have ran from a majority black election 

district. 

B. Other Relevant Factors 
  

l. Dallas County has a shameful, sordid history of 

racial discrimination not only in voting but in education and 

in housing as well. The decisions in Lipscomb v. Wise, supra, 
  

Tasby v. Estes, supra and Graves v. Barnes, supra describe the 
  

  

11 

 



  

unfortunate saga of Dallas County and relations between white 

and black citizens. Recently, the United States District Court 

for the Northern District of Texas, Dallas Division has entered 

findings in a case generally styled Walker, et al. v. U.S. 
  

Department of Housing and Urban Development, et al. ("Walker 
  

111%), F.Supp. (N.D. Tex., September 22, 1989),   

which illustrate one more facet of the discriminatory practices 

encountered by black citizens in Dallas County. Such decision 

is included for the Court's and parties' convenience. 

2 The evidence in this case dramatically demon- 

strates the extent of racially polarized voting in Dallas 

County. The testimony of Drs. Engstrom and Weiser speaks loudly 

to this issue and compels the conclusion that voting in Dallas 

County is almost always racially polarized. Whether an analysis 

of partisan races is undertaken or an analysis of non-partisan, 

exogenous races, is performed, the ultimate conclusion must be 

reached that in the terms described by Gingles, supra, voting 
  

in Dallas County is immutably polarized by race. 

The pallid explanation by defendant and defendant/- 

intervenor Dallas County that such statistics are explained by 

race but by partisan affiliation completely begs the question. 

To begin with, partisan voting was before the Supreme Court in 

Gingles but caused the Court no difficulty in concluding that 

voting indeed polarized along racial, not partisan, lines. 

12 

 



  

Also, and importantly in this case, it is relatively simple to 

determine that race and partisan voting in Dallas County are but 

different descriptors for the same voting patterns. They are 

one and the same, "hand in glove". The Republican primary is 

overwhelmingly white in terms of persons voting in such primary. 

The Republican candidates for the district bench in Dallas 

County are with but two (2) noted exceptions, white. A vote for 

the Republican nominee is to vote for the choice of the white 

primary voters and in all but two instances for the district 

court seats, a vote for a white candidate. 

Conversely, the black electorate participates 

extensively in the Democratic primary and a vote for the 

Democratic primary's nominee is a vote either for a black 

candidate or a candidate who has demonstrated sensitivity to 

the wishes of the black voting strength in the Democratic 

primary. This is where virtually all of the citizens in the 

black voting precincts cast their ballots during the primary 

process. 

Thus, in the general election, the votes for the 

Republican candidate are votes by white voters for white 

candidates, while votes for the Democratic candidate are votes 

for either a black candidate or a candidate who has demonstrated 

sensitivity to the black electorate. Clearly, such voting is 

racially polarized, no matter what pseudonym some expert may 

13 

 



  

give it. Moreover, when "partisan" factors are removed from 

the voting analysis, the same voters are found in City of Dallas 

elections vote (not surprisingly) along racial lines for candi- 

dates or regarding election propositions. The testimony of Dr. 

Weiser more than amply demonstrates this conclusion. It is not 

rebutted by any record evidence. 

3. Dallas County is an unusually large election 

district in that its voting populace exceeds that of fifteen 

(15) states. Campaigning in Dallas is extraordinarily expensive 

if the voters are to be reached on any meaningful basis. 

4. There is a majority vote requirement in each of 

the Republican and Democratic primaries with no "single-shot" 

or "bullet" voting permitted as defined in Gingles, 478 U.S. at 

38, fn. 5, 

5. The Republican Party in Dallas County operates 

as a dominant anglo or white slating group for all purposes 

concerning district court judicial elections. It is clear that 

the majority of voters in Dallas County are Republican and that 

they are overwhelmingly white by race. Dr. Weiser's analysis 

of Republican Party primary voting indicates that less than 500 

black voters actually participated in any Republican primary, 

which in 1988 had as many as 160,481 votes cast. The testimony 

of Tom James indicates that until recently, the Republican Party 

in Dallas County made little, if any, overture toward black 

14 

 



  

citizens to become involved in the Republican primary and 

therefore its nomination or slating process. The use of 

Republican appointed district judges in Dallas County to engage 

in activities to warn black voters against voting in 1982 

elections was demonstrative of the Republican Party's attitude 

towards black voters in general in Dallas County. 

6. There have been appeals to race in judicial 

campaigns in Dallas County. In 1980, Joan Winn White, an 

unsuccessful incumbent, victimized by her successful opponent's 

appeals to her race as the affirmative action candidate. 

Similarly in 1988, the Republican primary incumbent, black 

district judge Larry Baraka, was subjected to a racial appeal 

in this primary campaign in the Republican Party by his white 

opponent. 

Analagous to judicial races, in the 1986 race for 

district attorney in Dallas County, the successful white 

candidate campaigned, in part, based upon the race of his 

opponent, a black lawyer named Royce West. 

7. The extent to which black candidates have been 

elected at-large in Dallas is dismal. No black candidate has 

ever been elected at-large in either City of Dallas or in Dallas 

County elections at-large who was the candidate of choice of the 

black electorate. Secondly, and with respect to district 

judges, seven (7) black candidates have been opposed by anglos 

15 

 



  

in general elections for district judgeships in Dallas since 

1980 (prior to that time, there is no evidence to suggest that 

any earlier races were conducted by black candidates for 

district Jjudgeships). Of these seven (7) contests, two black 

candidates have been successful running as the nominee of the 

Republican Party. These candidates received virtually no black 

voter support. No black candidate has been successful in the 

City of Dallas for any of the at-large places on City Council 

nor had any legislator been elected from Dallas County at-large 

prior to the implementation of single member districts in Dallas 

County. Most relevant to the purposes of the Voting Rights Act, 

no black candidate has ever been elected at-large to any post 

to Dallas County or within the City of Dallas when that 

candidate was the choice of the black electorate. 

8. The analyses in Overton v. City of Austin, 871 
  

F.28 529 (5th Cir. 1989), Citizens for a Better Gretna v, Citv 
  

of Gretna, Louisiana, 834 F.2d 496 (5th Cir. 1987), Campos V. 
  

  

City of Baytown, Texas, 840 F.2d 1240 (5th Cir. 1988), League 
  

of United Latin American Citizens Council No. 4386 v. Midland 
  

Independent School District, 812 F.2d 1494 (5th Cir. 1987) and 
  

even Monroe v. City of Vicodville, Mississippi, F.2d ri NU eA,   

(5th Cir., August 30, 1989), underscore in the instance of 

Dallas County that use of at-large elections in context of the 

black voting populace is a clear violation of the prohibitions 

16 

 



  

of the Voting Rights Act of 1965, as amended. 

Despite the apparent concern regarding plaintiffs!’ 

claims demonstrated by some recent Fifth Circuit decisions, the 

required fact-intensive analysis in Dallas County reveals the 

unfortunate omnipresence of racial basis in voting of the kind 

outlawed by Section 2 of the Voting Rights Act. 

Unlike City of Woodville, supra, black voters in 
  

Dallas are quite politically cohesive, giving almost 100% of 

their support to their single candidate of choice in a particu- 

lar race. This holds true in district court contests. Unlike 

City of Woodville, black voters do not comprise a majority of 
  

the Dallas County voting age population, but rather about 18%. 

Unlike Houston v. Halev, 859 F.2d 341 (5th Cir. 1988) 
  

(vacated and remanded), no majority black election district 

exists in Dallas County for judicial races. By contrast, where 

majority black election districts do exist in Dallas County 

(State Legislature, State Senate, Dallas City Council, Dallas 

Independent School District and Dallas County Commissioner's 

Court), black candidates have enjoyed electoral success for many 

years. 

And, unlike Overton v. City of Austin, supra, there 
  

have been repeated examples of the defeat of the minority 

candidate and candidate of choice of the black voting populace 

in Dallas County. As noted above, 0 minority candidate 

17 

 



  

* » 

supported by the majority of black voters has won any at-large 

contest in Dallas -- city or county -- for at least the past 15 

years. Prior to that time, only slated black candidates had any 

success. Where anglo or white voters have voted to elect two 

black district judges, the overwhelming black vote was cast 

against these successful candidates (virtually 100%). 

IV. Conclusion 

The issues presented by the Dallas County portion of 

this litigation are closely analagous to the considerations in 

Gingles. The proof by plaintiffs and plaintiff/intervenors 

  

(Dallas County) tracks and resembles that of the successful 

Gingles plaintiffs. This Court should reach no different 

  

conclusion than did the Supreme Court -- the Voting Rights Act 

is in shambles in Dallas County, having been broken so often, 

so effectively. The time for remedy is here and now. 

Respectfully submitted, 

Mr. E. BRICE CUNNINGHAM 

Attorney at Law 

777 South R.L. Thornton Frwy. 
Suite 121 
Dallas, Texas 75203 

MULLINAX, WELLS, BAAB 

& CLOUTMAN, P.C. 

3301 Elm Street 
Dallas, Texas 75226-1637 
(214) S39-9222 

By: 57 i. ez 

Edward B. Cloutman, 111 
  

COUNSELFORPLAINTIFFS/INTERVENORS 

18