Judge Wood's Witness and Exhibit Lists, Deposition Transcripts and Excerpts, and Proposed Findings of Fact and Conclusions of Law

    ATTORNEYS 

A PARTNERSHIP INCLUDING 

PROFESSIONAL CORPORATIONS 

EVELYN V. KEYES 

(713) 226-061 

PorRTER & CLEMENTS 
FIRST REPUBLICBANK CENTER 

700 LOUISIANA, SUITE 3500 

HOUSTON, TEXAS 77002-2730 

  

TELEPHONE (713) 226-0600 

TELECOPIER (713) 228-1331 

TELECOPIER (713) 224-4835 

TELEX 775-348 

September 11, 1989 

VIA NEFWORK—CEBRIER ED. EX 
  

Mr. John Neil 
Clerk, U.S. District Court 
200 E, Wall sSt., Suite 316 
Midland, Texas 79702 

Re: 

Dear Sir: 

No. MO88-CA-154; League of United Latin American 
Citizens (LULAC), et al. v. James Mattox, Attorney 
General of Texas, et al.; In the United States District 
Court for the Western District of Texas, Midland-Odessa 
Division 

Defendant Harris County District Judge Sharolyn Wood submits 
the following documents for filing as attachments to the Pre- 
Trial Order in the above-referenced case: 

(1) 

(2) 
(3) 

(4) 

Witness List; 
Exhibit List; 

List of Depositions and Designated Deposition Excerpts; 

and 
Proposed Findings of Fact and Conclusions of Law. 

Please return a file stamped copy of these documents in the 

enveloped provided. 

A copy of this filing is being telecopies via facsimile 
transmission and mailed first class, postage prepaid, to counsel 

of record. 

EVK/cdf 
enclosures 

Sincerely yours, 

Evelyn V. Keyes 

 



    

PorTER & CLEMENTS 

Clerk, U.S. District Court 
September 11, 1989 
Page —-2- 

cC: Mr. William L. Garrett 
Ms. Brenda Hall Thompson 
Garrett, Thompson & Chang 
Attorneys at Law 

8300 Douglas, Suite 800 
Dallas, Texas 75225 

Mr. Rolando L. Rios 
Southwest Voter Registration & 

Education Project 
201:N, St. Mary's, Suite 521 
San Antonio, Texas 78205 

Ms. Susan Finkelstein 
Texas Rural Legal Aid, Inc. 
201 N,. St. Mary's, Suite 600 
San Antonio, Texas 78205 

Mr. Julius Levonne Chambers 

Ms. Sherrilyn A. Ifill 
NAACP Legal Defense and Educational Fund, Inc. 
99 Hudson Street, 16th Floor 
New York, New York 10013 

Ms. Gabrielle K. McDonald 
Matthews & Branscomb 

301 Congress Ave., Suite 2050 
Austin, Texas 78701 

Mr. Jim Mattox, Attorney General of Texas 

Ms. Mary F. Keller, First Assistant Attorney General 
Ms. Renea Hicks, Spec. Assistant Attorney General 
Mr. Javier Guajardo, Spec. Assistant Attorney General 
P. O. Box 12548 
Capitol Station 
Austin, Texas 78701 

Mr. Edward B. Cloutman, III 

Mullinax, Wells, Baab & Cloutman, P.C. 

3301 Elm Street 
Dallas, Texas 75226-1637 

Mr. E. Brice Cunningham 
777 So. R.L. Thornton Freeway, Suite 121 
Dallas, Texas 75203 

 



   
PorRTER & CLEMENTS 

Clerk, U.8. District Court 
September 11, 1989 
Page -3- 

Mr. Robert H. Mow, Jr. 

Hughes & Luce 
2800 Momentum Place 

1717 Main Street 
Dallas, Texas 75201 

 



  

WITNESS LIST FOR DEFENDANT/INTERVENOR HARRIS 
COUNTY DISTRICT JUDGE SHAROLYN WOOD 
  

  

Defendant/Intervenor Harris County District Judge Sharolyn 

Wood may call as expert witnesses at trial the following persons: 

Dr. Delbert Taebel 

Hon. Mark Davidson 

Dr. Taebel and Judge Davidson will testify that electoral 

success in Harris County judicial elections is predicated 

primarily upon partisan affiliation rather than upon racially 

polarized bloc voting. They will also testify that numerous 

other factors contribute to electoral success and that Harris 

County is not racially polarized in a legally significant sense. 

In addition, they will testify that the lower percentage of 

minority judges relative to overall minority population in Harris 

County is caused by the relatively low percentage of minorities 

in a pool of legally qualified judicial candidates. They may 

testify further regarding the Gingles, Zimmer, and Overton 

factors. 

Judge Wood may call the following persons as fact witnesses 

whose testimony may also involve expert opinions: 

Hon. Mark Davidson 
Hon. Felix Salazar 
Hon. Ray Hardy 
Hon. Manuel Leal 
Hon. Sharolyn Wood 
Hon. Carl L. Walker, Jr. 

The witnesses listed above will testify regarding the 

factual bases for electoral success in state district judge 

elections in Harris County. 

 



Judge Wood may also call as an adverse expert witness by 

deposition only with respect to narrative reports commissioned by 

the Judges Committee in 1986 for and at the expense of, inter 

alia, Plaintiff Matthew Plummer and Plaintiff-Intervenor Frances 

Williams the following person: 

Dr. Richard Murray 

WO003/25/cdf  



8 
¥ 

  

  

PorRTER & CLEMENTS RECEIVED 
1 FIRST REPUBLICBANK CENTER 

700 LOUISIANA, SUITE 3500 SEP 1 3 19839 

HOUSTON, TEXAS 77002-2730 

A a MATTHEWS & BRANSCOMB 

TELEPHONE (713) 226-0600 

TELECOPIER (713) 228-1331 

TELECOPIER (713) 224-4835 

TELEX 775-348 

PROFESSIONAL CORPORATIONS 

EVELYN V. KEYES 

(713) 226-0611 

September 11, 1989 

  

VIA NETHORK—EOBRIBR TED EX 

Mr. John Neil 
Clerk, U.S. District Court 
200 E. Wall St., Suite 316 
Midland, Texas 79702 

Re: No. MO088-CA-154; League of United Latin American 
Citizens (LULAC), et al. v. James Mattox, Attorney 
General of Texas, et al.; In the United States District 
Court for the Western District of Texas, Midland-Odessa 
Division 

Dear Sir: 

Defendant Harris County District Judge Sharolyn Wood submits 
the following documents for filing as attachments to the Pre- 
Trial Order in the above-referenced case: 

(1) Witness List; 
(2) Exhibit List; 
(3) List of Depositions and Designated Deposition Excerpts; 

and 
(4) Proposed Findings of Fact and Conclusions of Law. 

Please return a file stamped copy of these documents in the 

enveloped provided. 

A copy of this filing is being telecopies via facsimile 
transmission and mailed first class, postage prepaid, to counsel 

of record. 

Sincerely yours, 

Evelyn V. Keyes 

EVK/cdf 

enclosures 

 



4     
PorTER & CLEMENTS 

Clerk, U.8. District Court 
September 11, 1989 
Page -2- 

cc: Mr. William L. Garrett 
Ms. Brenda Hall Thompson 
Garrett, Thompson & Chang 
Attorneys at Law 
8300 Douglas, Suite 800 
Dallas, Texas 75225 

Mr. Rolando L. Rios 
Southwest Voter Registration & 

Education Project 
201 N. St. Mary's, Suite 521 
San Antonio, Texas 78205 

Ms. Susan Finkelstein 
Texas Rural Legal Aid, Inc. 
201 NN, St. Mary's, Suite 600 
San Antonio, Texas 78205 

Mr. Julius Levonne Chambers 
Ms. Sherrilyn A, I1£i1l 
NAACP Legal Defense and Educational Fund, Inc. 
99 Hudson Street, 16th Floor 
New York, New York 10013 

Ms. Gabrielle K. McDonald 

Matthews & Branscomb 

301 Congress Ave., Suite 2050 
Austin, Texas 78701 

Mr. Jim Mattox, Attorney General of Texas 

Ms. Mary F. Keller, First Assistant Attorney General 

Ms. Renea Hicks, Spec. Assistant Attorney General 

Mr. Javier Guajardo, Spec. Assistant Attorney General 
P. O. Box 12548 

Capitol Station 
Austin, Texas 78701 

Mr. Edward B. Cloutman, III 

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

Dallas, Texas 75226-1637 

Mr. E. Brice Cunningham 
777 So. R.L. Thornton Freeway, Suite 121 
Dallas, Texas 75203 

 



~ 

PorTER & CLEMENTS 

Clerk, 0.8. District Court 
September 11, 1989 
Page -3- 

Mr. Robert H. Mow, Jr. 

Hughes & Luce 
2800 Momentum Place 

1717 Main Street 
Dallas, Texas 75201 

 



RECEIVED 

SEP 1 31989 
WITNESS LIST FOR DEFENDANT/INTERVENOR 

HARRIS 
COUNTY DISTRICT JUDGE SHAROLYN WOOD MATTHEWS & BRANSCOMB 

  

  

  

Defendant/Intervenor Harris County District Judge Sharolyn 

Wood may call as expert witnesses at trial the following persons: 

Dr. Delbert Taebel 

Hon. Mark Davidson 

Dr. Taebel and Judge Davidson will testify that electoral 

success in Harris County judicial elections is predicated 

primarily upon partisan affiliation rather than upon racially 

polarized bloc. voting. They will also testify that numerous 

other factors contribute to electoral success and that Harris 

County is not racially polarized in a legally significant sense. 

In addition, they will testify that the lower percentage of 

minority judges relative to overall minority population in Harris 

County is caused by the relatively low percentage of minorities 

in a pool of legally qualified judicial candidates. They may 

testify further regarding the Gingles, Zimmer, and Overton 

factors. 

Judge Wood may call the following persons as fact witnesses 

whose testimony may also involve expert opinions: 

Hon. Mark Davidson 
Hon. Felix Salazar 
Hon. Ray Hardy 
Hon. Manuel Leal 
Hon. Sharolyn Wood 
Bon. Carl 1... Walker, Jr. 

The witnesses listed above will testify regarding the 

factual bases for electoral success in state district Judge 

elections in Harris County. 

 



  

Judge Wood may also call as an adverse expert witness by 

deposition only with respect to narrative reports commissioned by 

the Judges Committee in 1986 for and at the expense of, inter 

alia, Plaintiff Matthew Plummer and Plaintiff-Intervenor Frances 

Williams the following person: 

Dr. Richard Murray 

WO003/25/cdf 

 



® ® RECEIVED 

SEP 1 31989 

  

DEFENDANT-INTERVENOR WOOD'S MATTHEWS & BRANSCOMB 
LIST OF EXHIBITS 
  

  

1. Results of Harris County General Elections (Judicial Races) 
for 1980 through 1988 

2. Results of Harris County Democratic Primary Elections 
(Judicial Races) for 1982 through 1988 

3. Houston Bar Association 1988 Judicial Preference Poll 

Results 

4. Houston Bar Association 1986 Judicial Preference Poll 

Results 

5. Houston. Bar Association 1984 Judicial Preference Poll 
Results 

6. Houston Bar Association 1982 Judicial Preference Poll 
Results 

7. Houston Bar Bulletin - Results of Judicial Preference Poll, 
April 2, 1980. 

8. Article from Houston Post dated October 22, 1983 entitled 
"Judge files suit in response to state bar panel's rep- 
rimand" 

9. Article from Houston City Magazine dated July 1980 entitled 
"Rating the Judges" 

10. Article from Houston Post dated February 7, 1978 entitled 
"Open ballot slots attract Democratic contenders for 
primary" 

11. State Bar of Texas - Membership Department Breakdown of 
Active Attorneys by Ethnic Origin dated February 1, 1989 

12. Untitled Report prepared by Richard Murray for Democratic 
judges in 1982 (Murray Exhibit 1). 

13. Report entitled "Election Prospects for the Houston Area 
Appellate Courts: November 1982) prepared by Richard Murray 
(Murray Exhibit 2). 

14. Report entitled "Judicial Contests in Harris County 1982" 
prepared by Richard Murray (Murray Exhibit 3). 

VV 4 

 



  

15, 

1s. 

17. 

18. 

19, 

20, 

21. 

22. 

23. 

24, 

25. 

27. 

28, 

29. 

30, 

31. 

32. 

Report entitled "Judicial Elections in Harris County: A 
Review of the Judges Committee Campaign Effort" prepared by 
Richard Murray in 1986 (Murray Exhibit 4). 

Report entitled "Partisan Judicial Elections in Harris 
County, Texas" prepared by Richard Murray in 1986 (Murray 
Exhibit 5). 

Report entitled "The Selection of Judges in Texas" prepared 
by Richard Murray in March, 1989. 

Report entitled "Preliminary Campaign Suggestions" prepared 
by Richard Murray in June, 1984. 

The Hon. Mark Davidson's precinct-by-precinct analysis of 
discretionary judicial voting. 

Article from The Jewish Herald-Voice dated October 28, 1982 
entitled "Recommendations for the November 2 election". 

Article from The Jewish Herald-Voice dated November 1, 1984 
entitled "Voters' Guide" 

Article from The Jewish Herald-Voice dated October 30, 1986 
entitled "Our Endorsements in the Nov. 4 General Election" 

Article from The Jewish Herald-Voice dated November 3, 1988 
entitled "Political endorsements for your consideration" 

Articles from The Houston Chronicle dated November 4, 1980 
entitled "The Chronicle recommends" 

Article from The Houston Chronicle dated November 5, 1984 
entitled "The Chronicle recommends" 

Article from The Houston Chronicle dated November 3, 1986 
entitled "The Chronicle recommends" 

Article from The Houston Chronicle dated November 7, 1988 
entitled "The Chronicle recommends 

Article from The Houston Post dated November 6, 1984 
entitled "Post recommends" 

Article from The Houston Post dated November 3, 1986 
entitled "Post recommends" 

Article from The Houston Post dated November 4, 1988 
entitled "District court judges" 

Article from The Houston Post dated November 7, 1988 
entitled "Post recommends" 

 



44, 

45. 

46. 

47. 

48. 

Article from The Houston Chronicle dated April 20, 1982 
entitled "Election '83 - Attorneys favor most incumbents in 
judicial preference poll" 

Article prepared by United Press International dated July 
11, 1988 entitled "Lawsuit filed against at-large method of 
electing state judges" 

Article from The Houston Post dated May 1, 1989 entitled 
"Judges to remain elected" 

List of 1980 Campaign Contributors to Judicial Candidate 
Alice Bonner 

Sworn Statement of Contributions and Expenditures of 
Candidate Alice Bonner for the period Dec. 7, 1978 through 
Jan. 15, ::1979 

Contributions and Expenditures of Candidate Alice Bonner for 
Jan.~Feb. 1978 

Contributions and Expenditures for Candidate Alice Bonner 
for the period Feb. 1 through Mar. 27, 1978 

Sworn Statement of Contributions and Expenditures for 
Candidate Alice Bonner for the. period Mar. 28 through apr. 
27, 1978 

Sworn Statement of Contributions and Expenditures for 
Candidate Alice Bonner for the period Apr. 27 through May 
24, 1978 

Sworn Statement of Contributions and Expenditures for 
Candidate Alice Bonner for the period May 25 through June 
28,.1978 

Sworn Statement of Contributions and Expenses of Judge Alice 
Bonner dated Jan. 15, 1980 

Miscellaneous campaign expenditures of Alice Bonner for 1979 
and 1980 

List of Contributors to 1978 Campaign of Candidate Alice 
Bonner 

List of Contributors and Expenditures of Candidate Alice 
Bonner 

Expenditure for Advertising for 1978 Campaign of Candidate 
Alice Bonner 

WO00/04/10/ht 
W0000/001  



RECEIVED 

SEP 1 31989 

DEFENDANT-INTERVENOR WOOD'S LIST OF 
DEPOSITION TRANSCRIPTS AND EXCERPTS MATTHEWS & BRANSCOMSB 
  

  

In accordance with the Local Rules of the Western District, 

Defendant-Intervenor Harris County District Judge Sharolyn Wood 

designates the following deposition transcripts for possible use 

at trial: 

1. Matthew Plummer 7. Rev. William Lawson 
(excerpts) (impeachment) 

Senator Craig Washington . Ms. Bonnie Fitch 
(impeachment) (excerpts) 

Mr. Weldon Berry . Hon. Manuel Leal 
(excerpts) (excerpts) (video) 

Ms. Sheila Jackson Lee 10. Mr, Francis IL. Williams 
(impeachment) (excerpts) 

Dr. Richard Murray 11. Hon. Ray Hardy 
(excerpts) (entire) (video) 

Ms. Alice Bonner 
(excerpts) 

WO004/06/cdf  



  

Page 

13 

18 

23 

26 

30 

44 

49 

56 

59 

65 

66 

82 

87 

89 

92 

93 

104 

106 

113 

118 

From 

EXCERPTS OF DEPOSITION OF 
  

  

MATTHEW W. PLUMMER, SR. 7/27/89 

Line Page 

12 17 

10 22 

22 25 

6 27 

1 30 

4 46 

6 55 

12 57 

3 60 

5 65 

7 69 

20 86 

20 87 

24 90 

2 92 

21 94 

24 105 

24 108 

1 114 

8 120 

 



  

From 

Page 

123 

129 

130 

133 

135 

150 

Line 

24 

20 

10 

20 

 



  

122 

139 

143 

146 

148 

151 

154 

158 

From 

EXCERPTS OF DEPOSITION OF 
  

WELDON BERRY 8/14/89 
  

Line 

20 

18 

17 

15 

11 

122 

140 

144 

147 

151 

152 

156 

158 

Line 
  

16 

23 

22 

 



  

From 

145 

157 

160 

186 

EXCERPTS OF DEPOSITION OF 
  

ALICE A. BONNER 7/26/89 
  

Line 

16 

Page 

13 

24 

29 

85 

148 

159 

164 

187 

Line 

 



  

Page 

17 

20 

31 

37 

54 

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99 

WO004:08 :br 

W0027/001 

From 

EXCERPTS OF DEPOSITION OF 
  

BONNIE FITCH 8/30/89 
  

Line 

21 

11 

Page 

18 

21 

34 

37 

55 

62 

70 

83 

98 

100 

  

10 

19 

 



WO004:08:br 
WO0027/001 

EXCERPTS OF DEPOSITION OF 
JUDGE MANUEL LEAL 8/14/89 
  

  

Page 

20 

28 

 



  

85 

89 

From 

EXCERPTS OF DEPOSITION oF 
  

FRANCIS L. WILLIAMS 8/30/89 
  

Line 

22 

86 

91 

  

  

25 

20 

17 

13 

 



4 33 ® 
| RECEIVED 

SEP 1 51989 

  

DEFENDANT-INTERVENOR WOOD'S 
PROPOSED FINDINGS OF FACT MATTHEWS & BRANSCOMB 
  

  

1. In Harris County the fifty-nine state district judges are 
elected from overlapping county-wide districts to serve 
specialized functions as civil district judges, criminal 
judges, family law judges, and juvenile judges. Each judge 
ls elected by all the voters in the county to preside over 
matters of county-wide jurisdiction. Decisions are not made 
in a deliberative body. Instead, each judge has sole 
authority over all matters that come before him. For the 
foregoing reasons, the court finds that Harris County's 
system of electing state district judges from overlapping 
county-wide district is not an at large judicial election 
system but a single member district system. 

2. Blacks and Hispanics together in Harris County do not 
constitute a politically cohesive minority group. Blacks 
and Hispanics do not combine their votes in district judge 
elections in Harris County to defeat white candidates. 

3. Blacks do not combine their own votes in Harris County to 
defeat white candidates. Instead, in Harris County blacks 

routinely support white democrats over black Republicans. 
Blacks are politically cohesive in Harris County only 
insofar as they consistently prefer Democratic candidates 
over Republicans, regardless of race. 

4. Political ‘partisanship, and not racial discrimination, is 
the primary determinate of electoral success in Harris 
County. 

5. Most voters for state district judge in Harris County vote a 
straight party ticket, regardless of the race of the candi- 
dates. 

6. More than 90% of black voters in Harris County vote a 
straight Democratic ticket regardless of the race of the 
candidate. 

7. Whites in Harris County do not consistently prefer candi- 
dates for district judge different from those preferred by 
blacks; and they do not usually defeat the preferred 
candidates of blacks by combining their votes to overwhelm 
black votes plus white crossover votes. Instead, whites 
account for most swing votes in Harris County and vote 

consistently for members of other races and ethnic groups 
according to party affiliation and the perceived quality of 
the candidates. 

 



  

10. 

11. 

12. 

The bivariate regression analysis employed by the plain- 
tiffs' experts to prove racially polarized voting in Harris 
County. 1s. of "little probative value. Pirst, plaintiffs’ 
experts relied on outmoted ethnic data from the 1980 census 
to establish ethnic make-up of the precincts they studied in 
Harris County. Second, the 1980 census data relied upon 
uses misleading population figures, since it does not break 
out the voting age population for the total population or 
distinguish citizens from non-citizens, a failing that is 
especially important in the case of Hispanics. Third, 
bivariate regression analysis indiscriminately includes the 
large number of Asian-American voters and other non- 
protected minority voters in Harris County and uses those 
figures to inflate the percentage of "white" votes. Fourth, 
bivariate regression analysis assumes without any proof that 
in an ethnically mixed precinct all the votes for the black 
candidate come from blacks and all the votes for the white 
candidate come from whites. Fifth, bivariate regression 
analysis ignores the extremely heavy absentee vote in Harris 
County, which accounts for over 40% of all votes cast. For 
all the foregoing reasons, the court places very little 

. probative value on the conclusions derived by the plain- 
tiffs' experts from bivariate regression analysis. 

Electoral success in Harris County is not predicated upon 
racial bloc voting but upon other factors. Most voters are 
unaware of any factors distinguishing any of the judicial 
candidates, including race and therefore either do not vote 
for judges or vote a straight party ticket. 

Among all voters, including those who know nothing about the 
candidates For: state district judge, the principle 
determinative factor of electoral success in district judge 
races is political affiliation. 

Among voters with knowledge about the candidates in district 
judge races, other factors particular to the individual 
candidates also help determine electoral success. These 
factors include incumbency, county-wide campaigning, 
attempts to reach swing voters, adverse publicity prior to 
or during a campaign, key endorsements received by a 
candidate, the results of Bar preference polls, campaign 
financing, gender and the strength or weakness of a 
candidate's opponent. 

General factors, which vary from year to year, also .influ- 
ence the outcome of state district judge elections in Harris 
County. These include the coattails of popular candidates 
for races at the head of the ticket, such as races for 
governor or for President of the United States. Also, 
before 1980, all incumbent Jjudges in Harris County were 
Democrats and all were routinely returned to the bench. In 

 



  

13. 

14. 

15. 

16. 

17. 

18. 

19, 

20. 

1980 the Republicans fielded their first serious candidates. 
In 1982, Democratic candidates for state district judge rode 
to victory on the coattails of gubernatorial candidate Mark 
White. In 1984, Harris County elected only Republicans to 
the office of state district judge in contested elections, 
including whites, blacks and Hispanics. All democratic 
candidates were defeated regardless of race. In 1986 the 
incumbent Democratic district judges in Harris County 
mounted a largely successful race to retain their seats. In 
1988 the race between George Bush and Michael Dukakis helped 
Republican candidates again to achieve success in races for 
state district judge in Harris County. 

No candidate slating process that discriminates against 
either blacks or Hispanics exists in Harris County. 

Campaigns for state district judge in Harris County are not 
characterized by racial appeals. 

No evidence was put on by the plaintiffs or 
plaintiff-intervenors concerning the responsiveness of the 
county-wide district judge election system in Harris County 
to the needs of protected minorities. 

Both blacks and Hispanics have been consistently returned to 
the bench in Harris County in every election since 1978. 

The court finds that, as of 1988, there were only 547 black 
attorneys in Harris County and 186 Hispanic attorneys in a 
pool of 113,171: attorneys. An even smaller percentage of 
those attorneys were qualified to run for state district 
judge by virtue of having practiced law for four years. 

The court further finds that blacks and Hispanics have been 
elected” to the Office of state @istrict Judge in Harris 
County in percentages equal +o or greater <than their 
percentage in the pool of constitutionally qualified 
candidates for state district judge. 

Moreover, the court finds that any lower percentage of 
blacks or Hispanic judges to white judges in Harris County 
relative to overall black, Hispanic and white qualified 
voting age population is caused by the relatively low 
percentage of blacks and Hispanics in the pool of 
potentially legally qualified judicial candidates and not by 
abridgment or denial of the right of blacks or Hispanics to 
vote. 

The court finds that the present system of electing state 
district judges in Harris County neither was adopted nor has 
been maintained with the intent to discriminate against 
minorities. The present system was adopted to serve the 

 



important state policies of efficiency, sharing of case- 
load, and impartiality, and it serves those policies in 
Harris County. By contrast, a system of electing state 
district judges in Harris County from districts less than 
county-wide drawn on racial lines would have the deleterious 
effects of introducing race into Judicial elections, 
enhancing the influence of special interest groups, reducing 
the impartiality of Judges, destroying the system of 
district courts serving specialized functions, and creating 
an incentive for litigants to forum-shop. 

WO004/11/cdf  



RECEIVED 

SEP 1 31989 

DEFENDANT-INTERVENOR WOOD'S 
PROPOSED CONCLUSIONS OF LAW MATTHEWS & BRANSCOMB 
  

  

The plaintiffs' and plaintiff-intervenors' claims in this 
case are claims for proportional representation of blacks 
and/or Hispanics in the state judiciary; such claims violate 
the Voting Rights Act. 42" U.8.C. S$1973; Thornburg. Vv. 
Gingles, 478 U.S. 30, 106 S.Ct. 2752, 2790 (1986) (O'Connor, 
Ju, concurring). 

  

In a vote dilution case challenging a county-wide judicial 
election system, the plaintiffs are required to prove that 
the challenged system is an at large system, rather than a 
single member district system and that, based on the 
totality of the circumstances, the system results in a 
denial of the right of protected minorities to elect 
representatives of their choice. The plaintiffs must show 
that the voting age minority population ‘is sufficiently 
large and geographically compact to constitute a majority in 
at least one single member district smaller than a county 
without infringing the principle of one-man, one-vote. They 
must also show that the mninority group is’ politically 
cohesive and that it has a preferred candidate in any 
particular race. They must show that whites and minorities 
consistently prefer different candidates for office; and 
they must show a high correlation between the race of the 
voters and their preferred candidates. Finally, the 
plaintiffs must show that white bloc voting is racially 
discriminatory and that whites normally vote sufficiently as 
a bloc to defeat the combined strength of minority support 
plus white cross-over votes. See 42 U.S.C. §1973; Gingles, 

106:5.Ct. 2752. 

With ‘respect to the first Gingles factor =~ a minority 
sufficiently large and geographically compact to constitute 
a majority in a single-member district - the court finds 
that the principle of one-man, one-vote applies to judicial 
elections. See Board of Estimates of New York wv. Morris, 

109 '8.Ct. 1433, 1437 (1989). Therefore, proof of the first 

Gingles factor in a vote dilution case cannot be shown by 
reliance on hypothetical minority/majority districts which 
violate that principle, and to the extent the plaintiffs 
rely on such hypothetical districts those districts are of 
no probative value. 

  

With respect to the Gindles factor of racially polarized 
voting, the court finds that no violation of the Voting 
Rights Act can be shown when electoral success depends upon 
political affiliation rather the race of the candidate. 
Gingles 106 S.Ct. 2784 (White, J., concurring); Whitcomb v. 
Chavis, 403 U.S. "124, 149-160: 91 S.Ct, 1958, "1972-78 

~ DV 
J PP X 

   



  

(1971). Since the court has found that electoral success in 
Harris County depends principally on political affiliation 
and not race, the court concludes that the system of 
electing state district judges in Harris County does not 
violate the Voting Rights Act as a matter of law. 

With respect to the second and third Gingles factors of 
racially polarized voting and bloc voting, the court finds 
that the plaintiffs and plaintiff-intervenors have not shown 
that either white or minority voting patterns in Harris 
County are caused by racial discrimination. Such evidence 
is relevant to answer the question whether bloc voting by 
whites will consistently defeat minority candidates. See 
Gingles, 478 U.S. 30, 100, 106, S.Ct. "2752, 2792 (198EY 
(O'Connor, 3. concurring); Overton v, City of Austin, 871 
F.24 529 ,.537 (5¢th" Cir. 1989). Plaintiffs have nct made 
such a showing. 

  

The court further finds that +the bivariate regression 
analysis relied on by the plaintiffs and plaintiff- 
intervenors to establish racially polarized voting in Harris 
County is of little probative value since both the data and 
the assumptions relied upon are highly suspect. First, the 
extremely large percentage (over 40%) of absentee voters in 
Harris County - whose votes are not recorded by precinct - 
makes the determination of any precinct analysis which 
purports to correlate the race of voters with their 
preferred candidates highly unreliable. Furthermore, 1980 
census data, as used by plaintiffs’ experts, not only is 
out-of-date but also is not a realiable indicator of current 
voting age population in Harris County. Census data does 
not break down population with respect to voting age 
population or citizenship, thus giving a misleading 
indication of the number of qualified voters, especially 
Hispanic voters, and of the total qualified voting age 
population in Harris County. Morever, for the purposes of 
the plaintiffs' analyses, the large number of Asian- 
Americans and other non-protected minorities in Harris 
County are counted as white. In addition, since the plain- 
tiffs' bivariate regression analysis data was assembled, 
Harris County has had significant demographic changes. 
Finally, bivariate regression analysis itself rests on 
faulty assumptions, such as the assumption that in an 
ethnically mixed precinct all blacks vote for black 
candidates and all whites and other non-protected voting 
groups vote for whites. Therefore, for all the foregoing 
reasons, the plaintiffs' bivariate regression analysis is 
insufficient to establish any current racial voting trends 
in Harris County by a preponderance of the evidence. This 
is especially true since vote dilution is a "fact bound, 
intensely local inquiry." Overton, 871 F2d4d at 532-33. 

 



  

10. 

The court finds on the strength of the wording of §2 of the 
Voting Rights Act and the interpretation of that Act in 
Gingles, that the extent to which members of a protected 
class have been elected to an office is just one factor to 
be considered among the totality of circumstances in finding 
vote "dilution and "that it is not dispositive, 42 'u.s.C. 
$1973; Gingles, 106 S.Ct. at 2790 (O'Connor, J., concar- 
ring). 

In assessing the extent to which members of a protected 
class have been elected to an office, the court finds that 
the proper measure of electoral success of the protected 
class is the percentage of members of that class elected to 
that office as compared to the percentage of members of the 
protected class in the pool of candidates qualified to hold 
the Office. See Ward's Cove v, Atonio, 109 s.Ct. 2115, 2117 
(1989). This measure is also mandated by the language of 
§2 itself, which expressly denies that the Act establishes a 
right to have members of a protected class elected in 
proportion to their proportion of the population. 

  

Using as its measure the proportion of protected class 
members ‘elected to the office of state district Hudge in 
Harris County out of the total pool of qualified candidates, 
the court finds that blacks and Hispanics in Harris County 
have achieved electoral success as judges in Harris County 
in percentages greater than their representation in the 
qualified pool of candidates. Therefore, the extent to 
which blacks and Hispanics have been elected as state 
district judges in Harris County fails to support the claim 
that the right of blacks and Hispanics to elect candidates 
of their preference in judicial races has been abridged in 
Harris County. 

The: court further finds that no ‘violation of the Voting 
Rights Act can be established when there is no constitution- 
ally permissible remedy. Providing non-overlapping single 
member judicial districts without altering judicial specia- 
lization, Jury selection and venue would be unconstitu- 
tional in that voters ‘would ‘be disenfranchised and 
prohibited from voting in elections for district judges who 
would decide cases from their districts, and the preserva- 
tion of county-wide jury pools in conjunction with such 
small Judicial districts would violate the constitutional 
right to a jury from the district in which the offense arose 
(in criminal cases) or in which the case is pending (in 
civil cases). Moreover, > there is mo Trationdl basis for 

allocating specialized districts such as those presently 
existing in Harris County among single member districts 
drawn on racial lines. On the other hand, altering judicial 
specialization, jury selection, and venue under the 
authority of the Voting Rights Act would be an 

 



  

unconstitutional intrusion into state sovereignty. 
Therefore, there is no constitutionally permissible remedy 
for the violation of the Voting Rights Act which the 
plaintiffs and plaintiff-intervenors allege with respect to 
Harris County. 

11. For all of the foregoing reasons, the court finds that the 
existing system of electing state district judges in Harris 
County does not violate section 2 of the Voting Rights Act, 
42 U.S.C. §1973, 

12. A violation of the equal protection clause of the United 
State Constitution in a vote dilution case requires an 
intent to discriminate. Rogers v. Lodge, 458 U.S. 613, 102 
S.Ct. 3272, 3277-78 (1982). Tive factors are pertinent for 
the court to determine the discriminatory intent of Texas' 
present system o©f electing state district judges as it 
applies in Harris County: (1) the historical background of 
the decision; (2) the specific sequence of events leading up 

- to the decision; (3) departures from the normal procedural 
sequence; (4) substantive departures; and (5) legislative 
history, especially contemporary statements by members of 
the decision-making body. Village of Arlington Heights v. 
Metropolitan Housing Dev.'t Corp., 429 U.S. 252, 97 S.Ct. 
555 (1977); Overton, 871 F.24 at 540. Under the appropriate 
analysis, the court finds that neither article 5, §7(a) (i) 
of the Texas Constitution nor the creation or maintenance of 
county-wide specialized district courts in Harris County is 
intentionally discriminatory against blacks or Hispanics. 

  

  

  

12. For all of the foregoing reasons, the court finds that the 

current system of electing state district judges in Harris 
County does not violate the United States Constitution. 

13. The court may not award attorney's fees against defendant- 
intervenor Wood since her intervention is not frivolous, 
unreasonable or without foundation. Independent Federation 
of Flight Attendance v. Zipes, US...  , 109"8.Ct, 2732 
(1989). 

  

  

DEFENDANT-INTERVENOR WOOD PROPOSES THE 
FOLLOWING CONCLUSIONS OF LAWS TO 

ISSUES RELATED TO PRESERVE APPELLATE RIGHTS 

  

  

  

1. The Voting Rights Act does not apply to state district judge 
elections. 

2. The Voting Rights Act is unconstitutional as applied +o 
judicial elections. 

WO004/09/cdf 

 



DEFENDANT-INTERVENOR WOOD'S 
LIST OF EXHIBITS 
  

  

Results of Harris County General Elections (Judicial Races) 
for 1980 through 1988 

Results of Harris County Democratic Primary Elections 
(Judicial Races) for 1982 through 1988 

Houston Bar Association 1988 Judicial Preference Poll 

Results 

Houston Bar Association 1986 Judicial Preference Poll 

Results 

Houston Bar Association 1984 Judicial Preference Poll 

Results 

Houston Bar Association 1982 Judicial Preference Poll 
Results 

Houston Bar Bulletin - Results of Judicial Preference Poll, 
April 2, 1980. 

Article from Houston Post dated October 22, 1983 entitled 
"Judge files suit in response to state bar panel's rep- 
rimand" 

Article from Houston City Magazine dated July 1980 entitled 
"Rating the Judges" 

Article from Houston Post dated February 7, 1978 entitled 
"Open ballot slots attract Democratic contenders for 
primary" 

State Bar of Texas - Membership Department Breakdown of 
Active Attorneys by Ethnic Origin dated February 1, 1989 

Untitled Report prepared by Richard Murray for Democratic 
judges in 1982 (Murray Exhibit 1). 

Report entitled "Election Prospects for the Houston Area 
Appellate Courts: November 1982) prepared by Richard Murray 
(Murray Exhibit 2). 

Report entitled "Judicial Contests in Harris County 1982" 
prepared by Richard Murray (Murray Exhibit 3).  



  

15. 

16. 

17. 

18. 

19, 

20. 

21. 

22. 

23. 

24, 

25. 

27. 

28. 

29, 

30. 

31. 

32. 

Report: entitled "Judicial Elections in Harris County: A 
Review of the Judges Committee Campaign Effort" prepared by 
Richard Murray in 1986 (Murray Exhibit 4). 

Report entitled "Partisan Judicial Elections in Harris 
County, Texas" prepared by Richard Murray in 1986 (Murray 
Exhibit 5). 

Report entitled "The Selection of Judges in Texas" prepared 
by Richard Murray in March, 1989. 

Report entitled "Preliminary Campaign Suggestions" prepared 
by Richard Murray in June, 1984. 

The Hon. Mark Davidson's precinct-by-precinct analysis of 
discretionary judicial voting. 

Article from The Jewish Herald-Voice dated October 28, 1982 
entitled "Recommendations for the November 2 election". 

Article from The Jewish Herald-Voice dated November 1, 1984 
entitled "Voters' Guide" 

Article from The Jewish Herald-Voice dated October 30, 1986 
entitled "Our Endorsements in the Nov. 4 General Election" 

Article from The Jewish Herald-Voice dated November 3, 1988 
entitled "Political endorsements for your consideration" 

Articles from The Houston Chronicle dated November 4, 1980 
entitled "The Chronicle recommends" 

Article from The Houston Chronicle dated November 5, 1984 

entitled "The Chronicle recommends" 

Article from The Houston Chronicle dated November 3, 1986 

entitled "The Chronicle recommends" 

Article from The Houston Chronicle dated November 7, 1988 
entitled "The Chronicle recommends 

Article from The Houston Post dated November 6, 1984 

entitled "Post recommends" 

Article from The Houston Post dated November 3, 1986 

entitled "Post recommends" 

Article from The Houston Post dated November 4, 1988 

entitled "District court judges" 

Article from The Houston Post dated November 7, 1988 

entitled "Post recommends" 

 



  

33. Article from The Houston Chronicle dated April 20, 1982 
entitled "Election '83 - Attorneys favor most incumbents in 
judicial preference poll" 

34. Article prepared by United Press International dated July 
11, 1988 entitled "Lawsuit filed against at-large method of 
electing state judges" 

35. Article from The Houston Post dated May 1, 1989 entitled 
"Judges to remain elected" 

36. List of 1980 Campaign Contributors to Judicial Candidate 
Alice Bonner 

37. Sworn Statement of Contributions and Expenditures of 
Candidate Alice Bonner for the period Dec. 7, 1978 through 
Jan. 15, 1979 

38. Contributions and Expenditures of Candidate Alice Bonner for 
Jan.-Feb. 1978 

39. Contributions and Expenditures for Candidate Alice Bonner 
for the period Feb. 1 through Mar. 27, 1978 

41. Sworn Statement of Contributions and Expenditures for 
Candidate Alice Bonner for the period Mar. 28 through Apr. 
27, 1978 

42, Sworn Statement of Contributions and Expenditures for 
Candidate Alice Bonner for the period Apr. 27 through May 
24, 1978 

43. Sworn Statement of Contributions and Expenditures for 
Candidate Alice Bonner for the period May 25 through June 
28, 1978 

44, Sworn Statement of Contributions and Expenses of Judge Alice 
Bonner dated Jan. 15, 1980 

45. Miscellaneous campaign expenditures of Alice Bonner for 1979 
and 1980 

46. List of Contributors to 1978 Campaign of Candidate Alice 
Bonner 

47. List of Contributors and Expenditures of Candidate Alice 
Bonner 

48. Expenditure for Advertising for 1978 Campaign of Candidate 
Alice Bonner 

WOO/04/10/ht 
W0000/001 

 



  

DEFENDANT-INTERVENOR WOOD'S LIST OF 
  

DEPOSITION TRANSCRIPTS AND EXCERPTS 
  

In accordance with the Local Rules of the Western District, 

Defendant-Intervenor Harris County District Judge Sharolyn Wood 

designates the following deposition transcripts for possible use 

at trial: 

1. Matthew Plummer 
(excerpts) 

2. Senator Craig Washington 
(impeachment) 

3 Mr. Weldon Berry 
(excerpts) 

4. Ms. Sheila Jackson Lee 
(impeachment) 

5e Dr. Richard Murray 
(excerpts) 

6. Ms. Alice Bonner 

(excerpts) 

WO0004/06/cdf 

Rev. William Lawson 

(impeachment) 

Ms. Bonnie Fitch 
(excerpts) 

Hon. Manuel Leal 
(excerpts) (video) 

Mr. Francis IL. Williams 
(excerpts) 

Hon. Ray Hardy 
(entire) (video) 

 



  

113 

118 

From 

EXCERPTS OF DEPOSITION OF 
  

  

MATTHEW W. PLUMMER, SR. 7/27/89 

Line Page 

12 17 

10 22 

22 25 

6 27 

0 30 

A 46 

6 55 

12 57 

3 60 

5 65 

7 69 

20 86 

20 87 

24 90 

2 92 

21 94 

24 105 

24 108 

1 114 

8 120 

   



  

From 

Page 

123 

129 

130 

133 

135 

150 

Line 

24 

20 

14 

21 

13 

19 

10 

20 

 



EXCERPTS OF DEPOSITION OF 
WELDON BERRY 8/14/89 
  

  

 



EXCERPTS OF DEPOSITION OF 
ALICE A. BONNER 7/26/89 
  

  

Page 

13 

24 

29 

85 

 



EXCERPTS OF DEPOSITION OF 
BONNIE FITCH 8/30/89 
  

  

Page 

18 

el 

34 

37 

55 

62 

70 

83 

93 

WO004:08:br 
W0027/001 

 



  

From 

WO004:08:br 

W0027/001 

EXCERPTS OF DEPOSITION OF 
  

JUDGE MANUEL LEAL 8/14/89 
  

Line Page 

18 20 

6 28 

Line 

 



  

85 

89 

From 

EXCERPTS OF DEPOSITION OF 
  

FRANCIS L. WILLIAMS 8/30/89 
  

Line 

22 

25 

20 

17 

13 

 



  

DEFENDANT-INTERVENOR WOOD'S 
PROPOSED FINDINGS OF FACT 
  

  

In Harris County the fifty-nine state district judges are 
elected from overlapping county-wide districts to serve 
specialized functions as civil district judges, criminal 
judges, family law judges, and juvenile judges. Each judge 
is elected by all the voters in the county to preside over 
matters of county-wide jurisdiction. Decisions are not made 
in a deliberative body. Instead, each judge has sole 
authority over all matters that come before him. For the 
foregoing reasons, the court finds that Harris County's 
system of electing state district judges from overlapping 
county-wide district is not an at large judicial election 
system but a single member district system. 

Blacks and Hispanics together in Harris County do not 
constitute a politically cohesive minority group. Blacks 
and Hispanics do not combine their votes in district judge 
elections in Harris County to defeat white candidates. 

Blacks do not combine their own votes in Harris County to 
defeat white candidates. Instead, in Harris County blacks 
routinely support white democrats over black Republicans. 
Blacks ‘are "politically cohesive in Harris County only 
insofar as they consistently prefer Democratic candidates 
over Republicans, regardless of race. 

Political partisanship, and not racial discrimination, is 
the primary determinate of electoral success in Harris 
County. 

Most voters for state district judge in Harris County vote a 
straight party ticket, regardless of the race of the candi- 
dates. 

More than 90% of black voters in Harris County vote a 
straight Democratic ticket regardless of the race of the 
candidate. 

Whites in Harris County do not consistently prefer candi- 
dates for district judge different from those preferred by 
blacks; and they do not usually defeat the preferred 
candidates of blacks by combining their votes to overwhelm 
black votes plus white crossover votes. Instead, whites 
account for most swing votes in Harris County and vote 
consistently for members of other races and ethnic groups 
according to party affiliation and the perceived quality of 
the candidates. 

 



  

10. 

11, 

12, 

The bivariate regression analysis employed by the plain- 
tiffs' experts to prove racially polarized voting in Harris 
County is of little probative value. First, plaintiffs! 
experts relied on outmoted ethnic data from the 1980 census 
to establish ethnic make-up of the precincts they studied in 
Harris County. Second, the 1980 census data relied upon 
uses misleading population figures, since it does not break 
out the voting age population for the total population or 
distinguish citizens from non-citizens, a failing that is 
especially important in the case of Hispanics. Third, 
bivariate regression analysis indiscriminately includes the 
large number of Asian-American voters and other non- 
protected minority voters in Harris County and uses those 
figures to inflate the percentage of "white" votes. Fourth, 
bivariate regression analysis assumes without any proof that 
in an ethnically mixed precinct all the votes for the black 
candidate come from blacks and all the votes for the white 
candidate come from whites. Fifth, bivariate regression 
analysis ignores the extremely heavy absentee vote in Harris 
County, which accounts for over 40% of all votes cast. For 
all the foregoing reasons, the court places very little 
probative value on the conclusions derived by the plain- 
tiffs' experts from bivariate regression analysis. 

Electoral success in Harris County is not predicated upon 
racial bloc voting but upon other factors. Most voters are 
unaware of any factors distinguishing any of the judicial 
candidates, including race and therefore either do not vote 
for judges or vote a straight party ticket. 

Among all voters, including those who know nothing about the 
candidates for state district judge, the principle 
determinative factor of electoral success in district judge 
races 1s political affiliation. 

Among voters with knowledge about the candidates in district 
judge races, other factors particular to the individual 
candidates also help determine electoral success. These 
factors include incumbency, county-wide campaigning, 
attempts to reach swing voters, adverse publicity prior to 
or during a campaign, key endorsements received by a 
candidate, the results of Bar preference polls, campaign 
financing, gender and the strength or weakness of a 
candidate's opponent. 

General factors, which vary from year to year, also influ- 

ence the outcome of state district judge elections in Harris 
County. These include the coattails of popular candidates 
for races at the head of the ticket, such as races for 

governor or for President of the United States. Also, 
before 1980, all incumbent judges in Harris County were 
Democrats and all were routinely returned to the bench. In 

 



1980 the Republicans fielded their first serious candidates. 
In 1982, Democratic candidates for state district judge rode 
to victory on the coattails of gubernatorial candidate Mark 
White. In 1984, Harris County elected only Republicans to 
the office of state district judge in contested elections, 
including whites, blacks and Hispanics. All democratic 
candidates were defeated regardless of race. In 1986 the 
incumbent Democratic district judges in Harris County 
mounted a largely successful race to retain their seats. In 
1988 the race between George Bush and Michael Dukakis helped 
Republican candidates again to achieve success in races for 
state district judge in Harris County. 

No candidate slating process that discriminates against 
either blacks or Hispanics exists in Harris County. 

Campaigns for state district judge in Harris County are not 
characterized by racial appeals. 

No evidence was put on by the plaintiffs or 
plaintiff-intervenors concerning the responsiveness of the 
county-wide district judge election system in Harris County 
to the needs of protected minorities. 

Both blacks and Hispanics have been consistently returned to 
the bench in Harris County in every election since 1978. 

The court finds that, as of 1988, there were only 547 black 

attorneys in Harris County and 186 Hispanic attorneys in a 
pool of 13,171 attorneys. An even smaller percentage of 
those attorneys were qualified to run for state district 
judge by virtue of having practiced law for four years. 

The court further finds that blacks and Hispanics have been 
elected to the office of state district judge in Harris 
County in percentages equal to or greater than their 
percentage in the pool of constitutionally qualified 
candidates for state district judge. 

Moreover, the court finds that any lower percentage of 

blacks or Hispanic judges to white judges in Harris County 
relative to overall black, Hispanic and white qualified 
voting age population is caused by the relatively low 
percentage of blacks and Hispanics in the pool of 
potentially legally qualified judicial candidates and not by 
abridgment or denial of the right of blacks or Hispanics to 
vote. 

The court finds that the present system of electing state 
district judges in Harris County neither was adopted nor has 
been maintained with the intent to discriminate against 
minorities. The present system was adopted to serve the  



important state policies of efficiency, sharing of case- 
load, and impartiality, and it serves those policies in 
Harris County. By contrast, a system of electing state 
district judges in Harris County from districts less than 
county-wide drawn on racial lines would have the deleterious 
effects of introducing race into’ judicial elections, 
enhancing the influence of special interest groups, reducing 
the impartiality of Judges, destroying the system of 
district courts serving specialized functions, and creating 
an incentive for litigants to forum-shop. 

WO004/11/cdf  



  

DEFENDANT-INTERVENOR WOOD'S 
PROPOSED CONCLUSIONS OF LAW 
  

  

The plaintiffs' and plaintiff-intervenors' claims in this 
case are claims for proportional representation of blacks 
and/or Hispanics in the state judiciary; such claims violate 

the Voting Rights Act. 42 U.S.C. $1973; Thornburg v. 
Gingles, 478 U.S. 30, 106 8.Ct. 2752, 2790 (1986) (O'Connor, 
J., concurring). 

  

In a vote dilution case challenging a county-wide judicial 
election system, the plaintiffs are required to prove that 
the challenged system is an at large system, rather than a 
single member district system and that, based on the 
totality of the circumstances, the system results in a 
denial of the right of protected minorities to elect 
representatives of their choice. The plaintiffs must show 
that the voting age minority population is sufficiently 
large and geographically compact to constitute a majority in 
at least one single member district smaller than a county 
without infringing the principle of one-man, one-vote. They 
must also show that the minority group is politically 
cohesive and that it has a preferred candidate in any 
particular race. They must show that whites and minorities 
consistently prefer different candidates for office; and 
they must show a high correlation between the race of the 
voters and their preferred candidates. Finally, the 
plaintiffs must show that white bloc voting is racially 
discriminatory and that whites normally vote sufficiently as 
a bloc to defeat the combined strength of minority support 
Plus white cross-over votes. See 42 U.5.C. §1973; Gingles, 
106 S.Ct. 2752. 

With, respect to the first Gingles factor ~ a minority 
sufficiently large and geographically compact to constitute 
a majority in a single-member district =- the court finds 
that the principle of one-man, one-vote applies to judicial 
elections. See Board of Estimates of New York v. Morris, 
109 S.Ct. 1433, 1437 (1989). Therefore, proof of the first 
Gingles factor in a vote dilution case cannot be shown by 
reliance on hypothetical minority/majority districts which 
violate that principle, and to the extent the plaintiffs 
rely on such hypothetical districts those districts are of 
no probative value. 

  

With respect to the Gingles factor of racially polarized 
voting, the court finds that no violation of the Voting 
Rights Act can be shown when electoral success depends upon 
political affiliation rather the race of the candidate. 
Gingles 106 S.Ct. 2784 (White, J., concurring); Whitcomb v. 

  

Chavis, 403 U.S. 124, 149-160; 91 S.Ct. 1958, 1972-78 

 



  

(1971). Since the court has found that electoral success in 
Harris County depends principally on political affiliation 
and not race, the court concludes that the system of 
electing state district judges in Harris County does not 
violate the Voting Rights Act as a matter of law. 

With respect to the second and third Gingles factors of 
racially polarized voting and bloc voting, the court finds 
that the plaintiffs and plaintiff-intervenors have not shown 
that either white or minority voting patterns in Harris 
County are caused by racial discrimination. Such evidence 
is relevant to answer the question whether bloc voting by 
whites will consistently defeat minority candidates. See 
Gingles, 478 U.S. 30, 100, 106 S.Ct. 2752, 2792 (198%) 
(O'Connor, J. concurring); Overton v, City. of Austin, 871 
F.24 529, 537 (5th Cir. 1989). Plaintiffs have not made 
such a showing. 

  

The court further finds that the bivariate regression 
analysis relied on by the plaintiffs and plaintiff- 
intervenors to establish racially polarized voting in Harris 
County is of little probative value since both the data and 
the assumptions relied upon are highly suspect. First, the 
extremely large percentage (over 40%) of absentee voters in 
Harris County - whose votes are not recorded by precinct - 
makes the determination of any precinct analysis which 
purports to correlate the race of voters with their 
preferred candidates highly unreliable. Furthermore, 1980 
census data, as used by plaintiffs' experts, not only is 
out-of-date but also is not a realiable indicator of current 
voting age population in Harris County. Census data does 
not break down population with respect to voting age 
population or citizenship, thus giving a misleading 
indication of the number of qualified voters, especially 
Hispanic voters, and of the total qualified voting age 
population in Harris County. Morever, for the purposes of 
the plaintiffs' analyses, the large number of Asian- 
Americans and other non-protected minorities in Harris 
County are counted as white. In addition, since the plain- 
tiffs' bivariate regression analysis data was assembled, 
Harris County has had significant demographic changes. 
Finally, bivariate regression analysis itself rests on 
faulty assumptions, such as the assumption that in an 
ethnically mixed precinct all blacks vote for black 
candidates and all whites and other non-protected voting 
groups vote for whites. Therefore, for all the foregoing 
reasons, the plaintiffs' bivariate regression analysis is 
insufficient to establish any current racial voting trends 
in Harris County by a preponderance of the evidence. This 
is especially true since vote dilution is a "fact bound, 
intensely local inquiry." Overton, 871 F24 at 532-33. 

 



  

10. 

The court finds on the strength of the wording of §2 of the 
Voting Rights Act and the interpretation of that Act in 
Gingles, that the extent to which members of a protected 
class have been elected to an office is just one factor to 
be considered among the totality of circumstances in finding 
vote dilution and that it is not dispositive. 42 U.S.C. 
$1973; Gingles, 106 S.Ct. at 2790 (O'Connor, J., concur- 
ring). 

In assessing the extent to which members of a protected 
class have been elected to an office, the court finds that 

the proper measure of electoral success of the protected 
class is the percentage of members of that class elected to 
that office as compared to the percentage of members of the 
protected class in the pool of candidates qualified to hold 
the office. See Ward's Cove v. Atonio, 109 S.Ct. 2115, 2117 
(1989). This measure is also mandated by the language of 
§2 itself, which expressly denies that the Act establishes a 
right to have members of a protected class elected in 
proportion to their proportion of the population. 

  

Using as its measure the proportion of protected class 
members elected to the office of state district judge in 
Harris County out of the total pool of qualified candidates, 
the court finds that blacks and Hispanics in Harris County 
have achieved electoral success as judges in Harris County 
in percentages greater than their representation in the 
qualified pool of candidates. Therefore, the extent to 
which blacks and Hispanics have been elected as state 
district judges in Harris County fails to support the claim 
that the right of blacks and Hispanics to elect candidates 
of their preference in judicial races has been abridged in 
Harris County. 

The court further finds that no ‘violation of the Voting 
Rights Act can be established when there is no constitution- 
ally permissible remedy. Providing non-overlapping single 
member judicial districts without altering judicial specia- 
lization, jury selection and venue would be unconstitu- 
tional in that voters would be disenfranchised and 
prohibited from voting in elections for district judges who 
would decide cases from their districts, and the preserva- 
tion of county-wide jury pools in conjunction with such 
small judicial districts would violate the constitutional 
right to a jury from the district in which the offense arose 
(in criminal cases) or in which the case is pending (in 
civil cases). Moreover, there is no rational basis for 
allocating specialized districts such as those presently 
existing in Harris County among single member districts 
drawn on racial lines. On the other hand, altering judicial 
specialization, jury selection, and venue under the 
authority of the Voting Rights Act would be an 

 



  

§ | 

  

unconstitutional intrusion into state sovereignty. 
Therefore, there is no constitutionally permissible remedy 
for. the violation of the Voting Rights Act which the 
plaintiffs and plaintiff-intervenors allege with respect to 
Harris County. 

11. For all of the foregoing reasons, the court finds that the 
existing system of electing state district judges in Harris 
County does not violate section 2 of the Voting Rights Act, 
42 U.s.C. §1973. 

12. A violation of the equal protection clause of the United 
State Constitution in a vote dilution case requires an 
intent to discriminate. Rogers v. Lodge, 458 U.S. 613, 102 

8.Ct., 3272, 3297-78 (1982), Five factors are pertinent for 
the court to determine the discriminatory intent of Texas’ 
Present system of electing state district judges as it 
applies in Harris County: (1) the historical background of 
the decision; (2) the specific sequence of events leading up 
to the decision; (3) departures from the normal procedural 
sequence; (4) substantive departures; and (5) legislative 
history, especially contemporary statements by members of 
the decision-making body. Village of Arlington Heights v. 
Metropolitan Housing Dev.'t Corp., 429 U.S. 252, 97 s.Ct. 
555 (1977); Overton, 871 F.2d at 540. Under the appropriate 
analysis, the court finds that neither article 5, §7(a) (i) 
of the Texas Constitution nor the creation or maintenance of 
county-wide specialized district courts in Harris County is 
intentionally discriminatory against blacks or Hispanics. 

  

  

  

12. For all of the foregoing reasons, the court finds that the 
current system of electing state district judges in Harris 
County does not violate the United States Constitution. 

13. The court may not award attorney's fees against defendant- 
intervenor Wood since her intervention is not frivolous, 
unreasonable or without foundation. Independent Federation 
of Flight Attendance v. Zipes, B.8. -. ,3109 S.Ct. 2732 
(1989). 

  

  

DEFENDANT-INTERVENOR WOOD PROPOSES THE 
FOLLOWING CONCLUSIONS OF LAWS TO 

ISSUES RELATED TO PRESERVE APPELLATE RIGHTS 

  

  

  

1. The Voting Rights Act does not apply to state district judge 
elections. 

2. The Voting Rights Act is unconstitutional as applied to 
judicial elections. 

WO004/09/cdf