Reply Brief of Appellant Dallas County District Judge Entz

    ¢ HUGHES & LUCE, L.L.P. # 
A REGISTERED LIMITED LIABILITY PARTNERSHIP 

INCLUDING PROFESSIONAL CORPORATIONS 

1717 MAIN STREET 

SUITE ZBCO 

  

1021 MAIN STREET DALLAS, TEXAS 7520 11 CONGRESS AVENUE 

SUITE I300 (214) 939-5500 SUITE 900 

HOUSTON, TEXAS 77002 FAX (214) 839-6100 AUSTIN, TEXAS 7870 

(713) 754-5200 TELEX 730836 (312) 482-6800 

FAX (713) 754-5206 FAX (512) 482-6859 

Direct Dial Number 
(214) 939-5581 

April 26, 1993 

VIA CERTIFIED MAIL 

RECEIPT NO. P 1077602 476 

  

   
    

   

  

Mr. Richard 

United Sta 

{ Windhorst, Jr., Clerk 
s Court of Appeals 

New O Louisiana 70130 

/ Re: League of United Latin American Citizens, Council 

NO. 4434, eft al, v. Entz, et.al. Ro. 90-8014 

Dear Mr. Windhorst: 

Enclosed are an original and 20 copies of Reply Brief of 

Appellant Dallas County District Judge F. Harold Entz for 

filing in the above-referenced matter. 

Please return a file-stamped copy to me in the enclosed 

self-addressed prepaid postage envelope. By copy of +this 

letter, and in accordance with the Rules, copies of the 

enclosed brief have been forwarded to counsel of record. 

Please contact me at the above number if you have any 

questions. Thank you for your assistance in this matter. 

Very truly yours, 

Daf (belly. 
David C. Godbey 

DCG/phl 
Enclosures 

cc: William L. Garrett (Via Certified Mail RRR) 

Rolando L. Rios (Via Certified Mail RRR) 

Sherrilyn A. Ifill (Via Certified Mail RRR) 
Gabrielle K. McDonald (Via Certified Mail RRR) 

Edward B. Cloutman, III (Via Certified Mail RRR) 

E. Brice Cunningham (Via Certified Mail RRR) 

Renea Hicks (Via Certified Mail RRR) 

J. Eugene Clements (Via Certified Mail RRR) 

Seagal V. Wheatley 
Thomas Rugg 
Walter L. Irvin 
James George 

 



  

   
IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

No. 90-8014 

  

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

Plaintiffs-Appellees, 

V. 

DALLAS COUNTY DISTRICT JUDGE F. HAROLD ENTZ, et al., 

Defendants-Appellants. 

  

On Rehearing En Banc Following 
Remand from the United States Supreme Court 

  

REPLY BRIEF OF APPELLANT DALLAS COUNTY 
DISTRICT JUDGE F. HAROLD ENTZ 

  

Robert H. Mow, Jr., P.C. 

David C. Godbey 
Bobby M. Rubarts 

OF HUGHES & LUCE, L.L.P. 

1717 Main Street 
Suite 2800 
Dallas, Texas 75201 

(214) 939-5500 
901 Main Street 

ATTORNEYS FOR 
DEFENDANT -APPELLANT 
JUDGE F. HAROLD ENTZ 

April 26, 1993  



  

   
IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

No. 90-8014 

  

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

  

Plaintiffs-Appellees, 

V. 

DALLAS COUNTY DISTRICT JUDGE F. HAROLD ENTZ, et al., 

Defendants-Appellants. 

  

On Rehearing En Banc Following 

Remand from the United States Supreme Court 

  

REPLY BRIEF OF APPELLANT DALLAS COUNTY 

DISTRICT JUDGE F. HAROLD ENTZ 

  

Robert H. Mow, Jr., P.C. 

David C. Godbey 
Bobby M. Rubarts 

OF HUGHES & LUCE, L.L.P. 

1717 Main Street 
Suite 2800 
Dallas, Texas 75201 

(214) 939-5500 
901 Main Street 

N
E
 

E
E
 

5
 

B
B
 

T
O
 

E
O
 

B
E
 

EG
E 

E
h
 

G
E
 

=
 

e
e
 

ATTORNEYS FOR 
DEFENDANT-APPELLANT 
JUDGE F. HAROLD ENTZ 

April 26, 1993 

 



    

TABLE OF CONTENTS 

TABLE OF CONTENTS 

TABLE OF AUTHORITIES 

I. THE ROLE OF RACE IN RACIALLY 

POLARIZED VOTING «ie 

A. 

B. 

The Race of the Candidate Matters 

The Role of the Causation Inquiry 

11. TEXAS' INTERESTS IN ITS JUDICIAL 

SYSTEM ARE COMPELLING . 

A. 

CONCLUSION. 

A Compelling State Interest Can 
Preclude a Finding of a Violation 

of Section 2 

Texas Has a Compelling Interest in 

Linking the Geographic Electoral Base 

with the Area of a Court's Primary 

Jurisdiction 

1. Primary Jurisdiction. 

2. Linkage Is a Compelling State 
Interest. vio viv iv We eee 

3. Section 2 Cannot Require 
Experimental Voting Systems 
Consistently With Federalism. 

Texas Has a Strong Interest In 

Judicial Independence 

CERTIFICATE OF SERVICE. 

Page 

18 

19 

 



   
TABLE OF AUTHORITIES 
  

CASES 

City of Mobile v. Bolden, 

446 U.S. 55 (1980) 
  

City of Rome v. United States, 
446 U.S. 156 (1980) 
  

Marbury v. Madison, 

5'U.8. {1 Cranch) 137 (1803) 

Nipper Ys U-Haul 2 J 

516 S.W.2d 467 (Tex. Civ. App.--1974 xx writ) 

  

Oregon v. Mitchell, 

400 U.S. 112 (1970). 

  

Thornburg v. Gingles, 

478 U.S. 30 (19856) 
  

Whitcomb v. Chavis, 

403-U.8.. 755 (1971). 
  

STATUTES AND REGULATIONS 
  

U.S. CONST. 

Art, Iv, 8 4 

V.5 CONST. 

amend. V 

10 

12 

14 

 



No. 90-8014 

  

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

LEAGUE OF UNITED LATIN AMERICAN 

CITIZENS (LULAC), ef al., 

Plaintiffs-Appellees, 

Y. 

DALLAS COUNTY DISTRICT JUDGE F. HAROLD ENTZ, et al., 

Defendants-Appellants. 

  

REPLY BRIEF OF APPELLANT DALLAS COUNTY 

DISTRICT JUDGE F. HAROLD ENTZ 

Appellant Dallas County District Judge F. Harold Entz 

("Judge Entz") offers this reply brief showing that the 

District Court's unprecedented intrusion into the judicial 

structure of the State of Texas either misapplied the Voting 

Rights Act or exceeded the constitutionally permissible scope 

of federal control over intrinsic state functions. 

I. THE ROLE OF RACE IN RACIALLY POLARIZED VOTING 

The core disagreement between the panel majority and 

Judge Higginbotham's dissent 1s the definition of racially 

polarized voting. Judge Higginbotham's (and Judge Entz's) 

definition requires voting patterns to be polarized according 

to the race of the candidate. The panel majority and 

plaintiff-appellees suggest that racially polarized voting 

occurs simply when voters of one race vote differently than  



   
voters of another race, without regard to the race of the 

candidates in the analyzed elections. Under Judge 

Higginbotham's and Judge Entz's view of racially polarized 

voting, if partisan voting best explains any divergent voting 

patterns, this necessarily precludes a finding of racially 

polarized voting. Simply, voting patterns are explained by 

party affiliation rather than race. Thus, contrary to 

plaintiff-appellees’ contention, partisan voting is not 

offered as an affirmative defense to proven dilution; rather, 

it provides an explanation for divergent voting patterns, 

yielded through a searching and practical evaluation of 

political reality, that, if applicable, precludes a finding of 

racially polarized voting and, thus, precludes a finding of 

dilution. 

The plaintiff-appellees and amicus Department of Justice 

("DOJ") confuse the issue underlying the different views of 

racially polarized voting with inflamatory discussions 

regarding racial animus, intent, and the role of partisan 

voting. Those discussions obscure the controlling question: 

Does the race of the candidate matter under section 27 In 

light of the history of section 2, case law construing it, and 

general constitutional principles, the answer must be yes; 

otherwise, section 2 is unconstitutional. 

A. The Race of the Candidate Matters 
  

The inquiry begins with City of Mobile Vv. Bolden, 446 
  

U.S. 55 41980). The Supreme Court held that the Fourteenth 

 



    

and Fifteenth Amendments require a showing of discriminatory 

intent and that disparate results in electoral outcomes do not 

establish a constitutional violation. The Court also held 

that section 2 was coterminous with the Fifteenth Amendment 

and therefore also required a showing of discriminatory 

intent. Through the 1982 amendments to section 2, Congress 

attempted to avoid the Court's holding. Contrary to the 

Houston Lawyers' Association's view, see HLA En Banc Brief at 

4 n.3, Congress cannot and did not "overrule" City of Mobile 
  

vy. Bolden. See Marbury v. Madison, 5 U.S. (1 Cranch) 137 
  

  

(1803) (Marshall, C.J.). Rather, it purported to use its 

enforcement powers under the Fourteenth and Fifteenth 

Amendments to enact a results test. 

As Judge Entz stated in his principal brief, he seriously 

doubts whether section 2 is a valid exercise of Congress’ 

enforcement powers. See Judge Entz's En Banc Brief at 32-35. 

Assuming for the moment, however, that it was, section 2 must 

still fall within the context and scope of that enforcement 

power. Stated differently, section 2 must be a reasonable 

means or method of addressing the evil the amendments were 

designed to prohibit: intentional discrimination on the basis 

of race. Plaintiff-appellees cannot avoid the fact that, at 

bottom, section 2 can exist only as a remedy designed to 

combat intentional discrimination. 

This does not mean that the net Congress casts cannot 

reach unintentional discrimination. Congress certainly 

 



   
posseses enforcement powers under the enabling clauses of the 

Fourteenth and Fifteenth amendments to regulate what is 

otherwise perfectly constitutional behavior if such control is 

a reasonable method of promoting the purposes of the 

amendment. For this reason, the Supreme Court upheld section 

5's preclearance requirement as constitutionally permissible 

given Congress' explicit finding that changes to voting 

systems in particular southern states often were mere 

pretenses for continued intentional exclusion of minorities 

from the voting process. City of Rome v. United States, 446 
  

U.S. 156 (1980). But Congress cannot simply enact whatever it 

desires in a vaccuum and blithely assert authority under the 

Civil War amendments; the statutory approach must be 

reasonably calculated to achieve the end sought by the 

amendments ms the prevention of intentional racial 

discrimination in voting. Oregon v. Mitchell, 400 U.S. 112, 

128 (1570). 

Under plaintiff-appellees' view of racially polarized 

voting, evidence that black voters prefer white Democrat 

candidates and white voters prefer black Republican candidates 

proves a violation. If Congress so intended, Congress would 

necessarily have determined that partisan affiliation is an 

appropriate surrogate for intentional racial discrimination. 

Aside from the fact that no evidentiary record in the 

legislative history supports such a presumed intention, the 

enforcement power of the Civil War amendments do not permit 

 



   
such an illogical leap. Plaintiff-appellees thus confront a 

problem: in trying to distance their interpretation of section 

2 from any issues relating to intentional discrimination, they 

loosened the tether so much that section 2 would have left its 

mooring to the Civil War amendments. 

The interpretation of racially polarized voting that 

Judge Entz offers, on the other hand, would be a reasonable 

Congressional surrogate for intentional discrimination. if 

voters of different racial groups vote one way when the 

candidates are of one race and differently when the candidates 

are of a different race, that might well indicate the presence 

of discriminatory intent. Although that pattern might reflect 

something else -- such as voters preferring candidates who 

would promote the interest of their socio-economic class 

coupled with racial disparities in the distribution of wealth 

—- Congress is entitled under its enforcement powers to make 

that approxmation. 

Aside from the constitutional considerations in the 

inquiry of whether the race of the candidate matters, the 

  Supreme Court in Thornburg v. Gingles has indicated that the 

race of the candidate matters. 478 U.S. 30 (1986) Judge Entz 

will not repeat the vote counting exercise conducted in Judge 

Higginbotham's dissent or Judge Wood's Reply Brief. See 

Dissent at 28-34; Judge Wood's Reply Brief at 6=0,) Five 

Justices voted that the race of the candidate must be part of 

the racially polarized voting inquiry. 

 



   
B. The Role of the Causation Inquiry 
  

Judge Entz will briefly address the role causation plays 

in the section 2 analysis. At the risk of belaboring basics, 

Judge Entz must distinguish between correlation and 

causation. If two events tend to happen together, they are 

correlated. A statement that two events (A and B) are 

correlated does not imply anything about causation. Event A 

may cause Event B, Event B may cause Event A, or some third 

factor may cause both. A statement that events are correlated 

is merely descriptive, i.e., the events are related; it is not 

explanatory and does not purport to say what caused the 

relation. Moreover, statistical techniques such as regression 

analyses speak only to correlation and say nothing regarding 

causation. 

Judge Entz has advocated only one burden on section 2 

plaintiffs -- that they be required to show a correlation 

between voting patterns in racial voting groups and the race 

of the candidate, for example, that black voters vote for 

black candidates and that white voters do not. Such a showing 

provides a mere descriptive statement and does not attempt to 

explain why a particular pattern might exist. Specifically, 

this evidentiary burden would not require a plaintiff to prove 

that white voters do not vote for black candidates due to 

racial discrimination. Judge Entz believes that on a proper 

evidentiary record Congress could establish as plaintiff's 

 



evidentiary burden a showing that voters cast their votes in 

accordance with the race of the candidate, rather than why 

they vote that way. 

Thus, Judge Entz does not necessarily disagree with 

plaintiffs that they need not prove discriminatory intent in 

the electorate. Judge Entz does agree with Judge 

Higginbotham, however, that the race of the candidate must 

matter because the underlying constitutional norm at issue is 

one of eliminating racial discrimination in voting. Judge 

Entz recognizes that by stating the inquiry in terms of 

correlation rather than causation he differs slightly from 

Judge Higginbotham's views. The thrust of the position is the 

same however: racially polarized voting under section 2 must 

relate to the race of the candidate because the underlying 

constitutional norm section 2 seeks to promote is the 

prevention of intentional discrimination in voting. 

A corollary of this view is that demonstrating that 

another description of voting patterns, such as partisan 

voting, better fits the voters" behavior necessarily 

establishes that the voting patterns are not best described as 

racially polarized. Thus, if the evidence shows that minority 

voters vote for Democratic candidates, regardless of their 

race, and most white voters usually vote for Republican 

candidates, regardless of their race, then partisan polarized 

voting more aptly describes these voting patterns than does 

racially polarized voting.  



    

Plaintiff-appellees complain that this inquiry places an 

untenable evidentiary burden on them to prove not only the 

subjective intent of voters, but also to negate all other 

possible explanatory factors. That is not true. First, as 

discussed above, this evidentiary burden does not require 

plaintiffs to prove why white voters vote against black 

candidates, but only to show that, in fact, that happens. A 

plaintiff could easily show, for example, that regression 

analysis indicates a correlation between the race of the 

candidate and the race of the voter. A plaintiff also might 

show that within a party, candidates of one race win fewer 

votes than candidates of another race. 

The supposed dilemma of requiring plaintiffs to disprove 

all other possible explanatory factors is easily resolved. 

Place the evidentiary burden of showing that factors other 

than race better describe voting patterns on the defendants. 

Plaintiffs' evidentiary burden would be quite simple: just 

show that voters of one race do not vote for candidates of 

another race. Then defendants can attempt to show a better 

description. The trier of fact would then decide which 

proffered description was best. 

Judge Entz believes that this view of section 2 comports 

with common sense, as well as the Constitution and Supreme 

Court decisions. If a (presumed numerical majority) white 

electorate is willing to support black Republican candidates 

and a white Democrat favored by black voters loses, then 

 



    

admittedly the candidate preferred by minority voters is not 

elected. But the minority community's favored candidate did 

not lose because of race, but because of political 

affiliation. The Civil War amendments were not intended to 

protect against political preferences, but against racial 

discrimination in voting. Whitcomb Vv. Chavis, 403 U.S. 75% 
  

(1571). 

II. TEXAS' INTERESTS IN ITS JUDICIAL SYSTEM ARE COMPELLING 

A. A Compelling State Interest Can 

Preclude a Finding of a Violation of Section 2 
  

Plaintiff-appellees argue variously that this Court should 

consider the state's interest only in remedy, that this Court 

should not weigh the state's interest against the other 

factors in the totality of circumstances, or that courts have 

always considered the state's interest a factor. Those 

positions are wrong. Judge Entz will not duplicate Judge 

Higginbotham's discussion of the Supreme Court's Houston 

Lawyers,’ opinion, which stated that a court must weigh a 

state's interest against factors tending to show dilution and, 

moreover, that a state's interest can preclude such a 

finding. This Court intended the Zimmer factor of a tenuous 

state interest to detect those instances when the purported 

state interest was a pretextual sham, disguising a racially 

discriminatory motive. Zimmer did not contemplate showing an 

affirmative state interest supporting the practice and 

weighing against dilution. As Judge Entz stated in his 

principal brief, Houston Lawyers' contemplates the possibility 

 



    

that Texas' interest is compelling. Judge Entz will now 

address two such compelling interests that preclude a finding 

of dilution. 

B. Texas Has a Compelling Interest in Linking 

the Geographic Electoral Base with the Area 

of a Court's Primary Jurisdiction 
  

1. Primary Jurisdiction. -- Plaintiff-appellees seek to 
  

cloud the state's interest in linkage with numerous 

trivialities. Judge Entz acknowledges that Texas' district 

judges have judicial power statewide, or statewide 

jurisdiction. Nipper v. U-Haul Co., 516 S.W.2d 467, 470 (Tex. 
  

Civ. App. -- 1974 Beaumont, no writ). That expansive judicial 

power allows, for example, Dallas County Judge McDowell to 

travel to San Antonio pursuant to a change of venue and still 

retain judicial authority to conduct Walker Railey's trial in 

Bexar County. That the constitutional reservoir of judicial 

power expansively reaches statewide, however, does not mean 

that the statutory grant to exercise that power, through venue 

rules, is equally as expansive. 

Texas' venue rules essentially guarantee that if a case is 

to be tried in a particular county, it must have a factual 

nexus of some type with that county, whether it be that events 

pertinent to the dispute took place there, or a criminal 

offense occurred in that county, or that a party lives or 

conducts business in that county, or the county or city 

ordinance at issue would apply there. If a case is pending in 

a county, though, almost invariably some connection exists 

-10= 

 



    

with that county and its disposition will affect that county. 

Likewise, the decisions of judges sitting in those cases will 

touch the lives of the residents of the county. 

Plaintiff-appellees and DOJ point to certain limited 

exceptions to this general rule that they believe vitiate 

Texas' interest in linkage. An elected judge certainly may 

request the help of a visiting judge (which still preserves 

electoral accountability). Similarly, docket equalization 

might result in a transfer of a case. And, theoretically, a 

county could vote to subdivide into smaller judicial districts 

(even though no county has ever done so and even though that 

would still preserve the linkage between electoral 

accountability and judicial power). The fact remains, 

however, that those hypothetical circumstances happen either 

rarely or never. 

Plaintiff-appellees and DOJ apparently think that a state 

interest, like virginity, exists only in a pure, pristine 

state; any transgression and it vanishes forever. That ls 

nonsense. By far, the norm in Texas courthouses is that the 

cases heard there are connected to and affect the forum county 

and thus will be heard by a judge elected by the residents of 

that county. This standard procedure exists and it is the 

unquestionable policy of the state of Texas to link primary 

jurisdiction to the electorate, notwithstanding the occasional 

exception. 

=11-~ 

 



    

2. Linkage Is a Compelling State Interest, -—- Texas’ 
  

policy of linkage flows from fundamental notions of what it 

means to be a democracy. Contrary to plaintiff-appellees 

strawman, Judge Entz does not justify Texas' interest in 

linkage based on the prospect that a voter might someday 

become a litigant. Litigants do not have a constitutional 

right to vote on the judges before whom they may appear. 

Rather, Texas' interest in linkage flows from the right of 

citizens to select those elected officials whose job is to 

make decisions that affect the area where the citizens live 

and, thus, to make those officials accountable to the people 

whom they serve. (Although Judge Entz still does not believe 

that judges represent their constituents, he does agree that 

judges are servants of the people.) 

A fundamental principle of democracy teaches that people 

are entitled to vote for those elected officials who are 

granted decisionmaking authority over the place where they 

live. The Guaranty Clause of the Constitution embodies that 

principle. Uv.S. Const.:, art." 1V, § 4. Judge Entz is not 

saying that people have a right to vote for anybody whose 

decisions may affect them; for example, a decision by the 

Texas Legislature might affect residents of Louisiana, but 

Louisiana residents are not entitled to representation in the 

Texas Legislature. The guiding principle is that citizens are 

entitled to an electoral voice in the selection of elected 

l= 

 



officials charged with decisionmaking authority over the place 

those citizens live. 

In the case of a multi-member body that makes collegial 

decisions, such as a legislature or city council, properly 

apportioned single member districts may provide that electoral 

voice. In the case of a solo decisionmaker, however, such as 

a district judge or a governor, that electoral voice can be 

spoken only by permitting all residents to vote in the 

election. 

The point may be clearer in the context of a single 

office, such as the governor. One could conceive of some form 

of gubernatorial "time-sharing," in which each of ten regions 

across the state in turn elected the governor. Over time all 

ten regions would have an equal say in the selection of the 

governor, and areas with large minority populations would 

escape the dilution of at large gubernatorial elections. Such 

a system would be flagrantly unconstitutional, of course, 

because at any given time it would disenfrancise 90% of the 

electorate in violation of the Guaranty Clause and fundamental 

concepts of democracy and due process. 

The same disenfranchisement would happen if Dallas County 

were divided into 37 mini-districts (or Harris County into 59) 

with county-wide primary jurisdiction. The voters would be 

disenfranchised from voting in the vast majority of elections 

of the judges with decisionmaking authority over their lives. 

That is equally as unconstitutional as the gubernatorial  



    

time-sharing example. The fact that it is done multiple times 

does not make it constitutional; 37 wrongs don't make a right. 

2. Section 2 Cannot Require Experimental Voting Systems 
  

Consistently With Federalism. - Judge Entz notes his 
  

astonishment at DOJ's cavalier suggestion that Texas could 

simply divide its counties into numerous mini-districts, for 

both elections and jurisdiction, and thus preserve linkage. 

DOJ Brief at 23. First, that position reflects a "least 

restrictive alternative" analysis created out of whole cloth. 

This Court considers whether Texas has a strong reason for its 

system, not whether other experimental methods of judicial 

election could be devised that might also accommodate that 

interest. In that connection, HLA's interest in cumulative 

voting in its brief, see HLA Brief at 16, appears pretextual, 

since it did not seek such a remedy in its purported 

"settlement" with the Attorney General. 

Second, DOJ exposes its naive view of the complexity of 

the Texas' court system and underestimates the difficulty of 

actually implementing its off-the-cuff proposal. Would DOJ 

follow the constitutional requirement of a jury pool from the 

judicial district in which an offense was committed and 

subdivide the jury venire as well? See U.S. Const. amend. V. 

Would each mini-district have its own specialized courts? If 

not, would different venue lines and jury venires exist for 

each type of specialized court? What would happen to 

county-wide case administration and docket equalization? 

~Y¥4 

 



    

Development of a working court system that complies with all 

constitutional imperatives is not a trivial task. To propose 

that this Court require Texas to reinvent its system under the 

authority of section 2 in an offhand manner reflects a view of 

section 2 that makes a mockery of federalism. 

Thus, the State of Texas has a compelling interest in 

tying the jurisdictional base of a court to that court's 

electoral base. That interest is not only compelling, it is 

constitutionally mandated. 

C. Texas Has a Strong Interest In Judicial Independence 
  

Texas also justifies its county-wide jurisdiction on the 

basis that it preserves judicial independence by striking a 

balance between accountability and a large electorate. 

Plaintiff-Appellees and DOJ believe they have beaten that 

argument by noting that a divided Harris County district would 

still be larger than some sparsely populated rural districts. 

That counter argument fails for at least three reasons. 

First, judicial independence from undue local influence 

is a matter of degree. DOJ and plaintiff-appellees seem to 

think that there is some magic number of residents that will 

secure independence in a district. If the number of residents 

exceeds the magic number, surely a judge will be independent; 

if the number of residents falls below the magic number, 

certainly the judge will be corrupt. That 1s absurd. The 

state interest in judicial independence is one of degree that 

must be balanced against other competing considerations. The 

15 

 



    

fact remains, however, that the risk of undue influence, or 

the risk of public perception of influence, increases as the 

size of a district decreases. Texas can reasonably conclude 

that in urban counties it needs the additional margin of 

protection that county-wide elections will provide. 

Second, DOJ's and plaintiff-appellees' response relies on 

an unstated assumption that a portion of Houston or Dallas 

with a population of 100,000 people poses the identical risks 

of undue influence as does an area in west Texas with like 

population. Once stated, the assumption's weaknesses seem 

apparent. Texas could reasonably assume that an urban area 

with its higher crime rates and more complex structures might 

pose a greater risk of undue influence per capita than would 

idyllic rural areas. 

Third, the counterargument assumes that no other factors 

affect a legislature's consideration of undue influence and 

the size of judicial districts. Thus, they argue, since the 

Texas Legislature has created rural districts in sparsely 

populated areas with fewer residents than Dallas County, that 

establishes a floor population that is safe from undue 

influence. But other considerations do affect the size of 

judicial districts. In particular, the Texas Legislature 

considers geographic proximity to the courthouse and it seems 

quite reasonable for the Texas Legislature to determine that 

judicial redress must be fairly close to every Texas citizen. 

To accommodate that need, some rural districts may have a 

~-16~ 

 



    

smaller population than urban districts. As a consequence, of 

course, the existence of "local" justice in rural Texas is not 

unknown. In urban areas, however, that competing balance of 

proximity to the courthouse is not an issue and the Texas 

Legislature could reasonably give greater weight to insulating 

the judiciary from undue influence. 

For these reasons, DOJ's and plaintiff-appellees' counter 

argument to the state interest in judicial independence 

fails. That state interest strongly supports a finding of no 

dilution. Judge Entz must note that DOJ at one time also 

viewed Texas interest in judicial independence as 

significant: wli1lf Texas consistently elects trial or 

appellate judges at-large in order to ensure the appearance of 

fairness and impartiality in the judicial process, its 

interest may not be just 'strong' but ‘'compelling.’'” Brief 

for the United States as Amicus Curiae Supporting Reversal at 

17-23, Houston Lawyers' Ass'n v. Attorney General of Texas and 
  

League of United Latin American Citizens v. The Attorney 
  

General of Texas, Nos. 90-813 and 90-974, In the Supreme Court 
  

of the United States, October Term, 1990. Judge Entz suggests 

that DOJ's change of heart follows from the intervening change 

in administrations and a new policy agenda to promote -- not 

from a different conclusion reached after more reflection on 

the question. 

17 

 



  

   
CONCLUSION   

Therefore, for the reasons stated, Judge Entz requests 

that the en banc Court reverse the decision of the District 

Court and render judgment in favor of the defendants. 

Respectfully submitted, 

  

Lo WO 
  

Robert H. Mow, Jr., P.C. 

David C. Godbey 
Bobby M. Rubarts 

OF HUGHES & LUCE, L.L.P. 

1717 Main Street 

Suite 2800 
Dallas, Texas 75201 

(214) 939-5500 

ATTORNEYS FOR DALLAS COUNTY 
DISTRICT JUDGE F. HAROLD ENTZ 

-l8~ 

 



CERTIFICATE OF SERVICE 
  

I certify that I served two copies of the foregoing brief 

by certified mail, return receipt requested, on William VL. 

Garrett, Garrett, Thompson & Chang, 8300 Douglas, Suite 800, 

Dallas, Texas 75225; Rolando Rios, Milam Building, 115 E, 

Travis Street, Suite 1024, San Antonio, Texas 78205; Sherrilyn 

A. Ifill, NAACP Legal Defense and Educational Fund, Inc., 99 

Hudson Street, ith Floor, New ' York, New York 10013; 

Gabrielle K. McDonald, Walker & Satterthwaite, 7800 N. Mopac, 

Suite 215, Austin, Texas 78759; E@ward B. Cloutman, 111, 

Cloutman, Albright & Bower, 3301 Elm Street, Dallas, Texas 

75226-1637; Renea Hicks, Office of the Attorney General, P.O. 

Box 12548, Capitol Station, Austin, Texas 78711-2548; 

J. Eugene Clements, Porter & Clements, 700 Louisiana, Suite 

3500, Houston, Texas 77002-2730; E. Brice Cunningham, 777 

South R.L. Thornton Freeway, Dallas, Texas 75203; James P. 

Turner, Department of Justice, P. O. Box 66078, Washington, 

B.C. 20035-6078; Joseph Jamail, Jamail & Kolius, 1 Allen 

Center, 500 Dallas Street, Suite 3434, Houston, Texas 

77002-4793 in accordance with the Federal Rules of Appellate 

Procedure this 26th day of April, 1993.