Supplement to Motion for Proposed Interim Plan; Statement on Non-Partisan Elections; Response to Bexar County Judges Motion to Intervene

    THE ATTORNEY GENERAL 

OF TEXAS 

JIM MATTOX 

ATTORNEY GENERAL 
uv December 28, 1989 

VIA FEDERAL EXPRESS 
  

U.S. District Clerk 

200 East Wall Street, Room 316 

Midland, Texas 79701 

Re: LULAC #4434, et al. v. Mattox, et al. 

Civil Action No. MO-88-CA-154 

Dear Sir or Madam: 

Enclosed for filing in the above-referenced matter are the original 
and one copy of: a Supplement to the Joint Motion for Entry of the 

Proposed Interim Plan; a Statement Concerning Non-Partisan Elections as 
an Aspect of an Interim Remedy; and State Defendants’ Response to Motion 
to Intervene by Bexar County Judges. 

Sincerely, 

  

Special Assistant Attorney General 

P.O. Box 12548, Capitol Station 

Austin, Texas 78711-2548 

(512) 463-2085 

Enclosures 

512/463-2100 SUPREME COURT BUILDING AUSTIN, TEXAS 78711-2548 

 



UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF TEXAS 

MIDLAND/ODESSA DIVISION 

LULAC COUNCIL #4434, et al., 
Plaintiffs, 

VS. Civil Action No. 

MO-88-CA-154 

JIM MATTOX, et al., 

Defendants. 

SUPPLEMENT TO THE JOINT MOTION FOR ENTRY OF 
PROPOSED INTERIM PLAN 

The plaintiffs, the plaintiff-intervenors, and the Attorney 

General of Texas on behalf of the State of Texas hereby supplement 

their Joint Motion for Entry of Proposed Interim Plan, as follows: 

i. In paragraph 5 on page 3 of the Joint Motion, the 

plaintiffs, the plaintiff-intervenors, and the Attorney General of 

Texas showed that the Proposed Interim Plan reflects the policy 

choice of the State Legislature by including in Attachment A a 

statement signed by a majority (16 of 31 members) of the Texas 

Senate supporting the Plan's concept and its adoption and in 

Attachment B a list showing 71 of 150 members of the Texas House 

of Representatives. At that time more signatures of members of the 

Texas House of Representatives supporting the Plan's concept and its 

adoption were anticipated. 

Since filing the Joint Motion, six members of the Texas House of 

Representatives have added their support to the Proposed Interim 

Plan; four of the Representatives are disclosed and two are 

undisclosed. The four disclosed members are: Lloyd Criss; Charles  



Finnell; Erwin Barton; and Billy Clemons. The two undisclosed 

members wish to remain anonymous because they are practicing 

attorneys who have cases pending in state district courts in the nine- 

county area. The total number of members of the Texas House of 

Representatives now supporting the Proposed Interim Plan is 77 -- a 

majority of the Texas House of Representatives. Thus, a majority of 

the legislative body for Texas has joined in support of the Proposed 

Interim Plan. 

Based upon the foregoing matter, the plaintiffs, the plaintiff- 

intervenors, and the Attorney General of Texas on behalf of the State 

of Texas again urge the Court to grant the Joint Motion and adopt 

their Proposed Interim Plan for the 1990 judicial elections in the 

nine affected counties. 

Respectfully submitted, 

.) Aram Matty 

JIM MATTOX 

ATTORNEY GENERAL OF TEXAS 

  

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WILLIAM C. GARRETT { @Wit& sirmiois. 
ROLANDO L. RIOS le Ye 
SUSAN FINKELSTEIN 

ATTORNEYS FOR PLAINTIFFS AND, FOR 
THIS MOTION, ON BEHALF OF THE 

ATTORNEYS FOR DALLAS PLAINTIFF- 
INTERVENORS AND THE ATTORNEYS FOR 

HARRIS PLAINTIFF-INTERVENORS  



CERTIFICATE OF SERVICE 

I certify that on this 28th day of December, 1989, I sent a copy 

of the foregoing document by overnight courier to each of the 

following: William L. Garrett, Garrett, Thompson & Chang, 8300 

Douglas, Suite 800, Dallas, Texas 75225; Rolando Rios, Southwest 

Voter Registration & Education Project, 201 N. St. Mary's, Suite 521, 

San Antonio, Texas 78205; Sherrilyn A. Ifill, NAACP Legal Defense 
and Educational Fund, Inc., 99 Hudson Street, 16th Floor, New York, 

New York 10013: Gabrielle K. McDonald, 301 Congress Avenue, Suite 

2050, Austin, Texas 78701; Edward B. Cloutman, III, Mullinax, Wells, 

Baab & Cloutman, P.C., 3301 Elm Street, Dallas, Texas 75226-1637; J. 

Eugene Clements, Porter & Clements, 700 Louisiana, Suite 3500, 

Houston, Texas 77002-2730; and Robert H. Mow, Jr., Hughes & Luce, 

2800 Momentum Place, 1717 Main Street, Dallas, Texas 75201. 

yg Lids 
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Renea Hicks 

  

 



  

UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF TEXAS 
MIDLAND/ODESSA DIVISION 

LULAC COUNCIL #4434, et al., 

Plaintiffs, 

Civil Action No. 

MOQO-88-CA-154 
VS. 

JIM MATTOX, et al., 

Defendants. LO
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STATEMENT CONCERNING NON-PARTISAN ELECTIONS AS AN 
ASPECT OF AN INTERIM REMEDY 

Attorney General Jim Mattox on behalf of the State of Texas 

submits the following matters in connection with the question of 

whether ordering non-partisan judicial elections as part of an interim 

remedy in this case is consistent with state policy and the federal 

Voting Rights Act:” 

1. In voting rights cases such as this one, federal courts are 

obligated to tailor the remedy (even an interim one) to the violation 

and, in doing so, to respect policy choices expressed by the state 

legislative body. The Attorney General, along with the plaintiffs and 

plaintiff-intervenors, has submitted a Proposed Interim Plan which 

endeavors to maintain the mandated balance and which reflects the 

state legislative body's consensus view. Incorporation of non- 

partisan elections into a court-ordered interim remedy would 

  

* 
At the Governor's request, the Court conducted an in-chambers 

conference on December 11, 1989, in Pecos, Texas, with the Governor of Texas, 
representatives of the parties, and others. The Court's remarks during that 
conference were the first unambiguous expression of its probable intention to 
order the 1990 elections to go forward under a different electoral system than 
the one under challenge in this lawsuit. 

 



destroy the balance and ignore what is effectively the state's 

remedial plan. It would mandate a change in the method of electing 

judges that is at odds with the violation found in the Court's order of 

November 8th, as modified, and unsupported by any evidence in the 

case. Not only would the inclusion of such an element in the interim 

remedy not be tailored to any violations found by the Court; it would 

be diametrically opposed to long-held policy choices of the Texas 

legislative bodies and to remedying the violations found by the 

Court. Inclusion of such a non-partisan election element would 

disadvantage minority voters. It would be the opposite of a remedy 

for voting rights act violations heretofore found by the Court. The 

fact that in some corners non-partisan judicial elections have been 

labeled as a reform says nothing about whether they are a remedy 

in this case. Judicial reform is not the same thing as a judicial 

remedy, and non-partisan elections are not a remedy here, even if 

some may consider them a reform. This Court's task is to devise a 

remedy for minority voters, not a reform of the state's judicial 

system that ignores well-ensconced, recently-articulated state policy 

choices. "The remedial powers of an equity court must be adequate 

to the task, but they are not unlimited." Whitcomb v. Chavis, 403 

U.S. 124, 161 (1971). The Supreme Court's delimitation of federal 

court remedial powers in voting rights matters in connection with 

legislative size applies also in connection with partisanship as an 

electoral option. To paraphrase from Minnesota State Senate v. 

Beens, which addressed federal equity powers to change the size of a 

legislature:  



  

[Partisan voting] is a matter of state policy. 

We certainly are not equipped -- and it is not 
our function and task -- to effectuate policy of 

that kind or to evaluate it once it has been 
determined by the State. Neither is it the 
function and task of the Federal District Court. 

[Partisan voting] is for the State to determine 

in the exercise of its wisdom and in the light 
of its awareness of the needs and desires of 

its people. 

406 U.S. at 200. 

2. The Court rejected as legally irrelevant the State 

Defendants’ argument that partisan voting preferences better 

describe electoral outcomes in the races at issue in this case than 

racially polarized voting patterns. It hardly follows that eliminating 

(for the 1990 elections) the ability to vote in party primaries would 

aid minority voters in making their voices heard through the ballot 

box in state district judge elections. It also would be fundamentally 

inconsistent with the Court's November 8th rejection of the State 

Defendants’ arguments, which were premised on the Supreme Court's 

opinion in Whitcomb v. Chavis. 

3. Two letters are attached which address one of the 

principal difficulties with ordering an interim move from partisan to 

non-partisan judicial elections. That problem is the reduction in 

minority voter participation in non-partisan elections. Relief which 

effectively reduces minority voter participation is not a remedy for 

the violations found by the Court. 

 



  

Respectfully submitted, 

2 on At 
JIM MATTOX 

ATTORNEY GENERAL OF TEXAS 

  

CERTIFICATE OF SERVICE 

I certify that on this 28th day of December, 1989, I sent a copy 

of the foregoing document by overnight courier to each of the 
following: William L. Garrett, Garrett, Thompson & Chang, 8300 

Douglas, Suite 800, Dallas, Texas 75225; Rolando Rios, Southwest 

Voter Registration & Education Project, 201 N. St. Mary's, Suite 521, 

San Antonio, Texas 78205; Sherrilyn A. Ifill, NAACP Legal Defense 

and Educational Fund, Inc., 99 Hudson Street, 16th Floor, New York, 

New York 10013; Gabrielle K. McDonald, 301 Congress Avenue, Suite 

2050, Austin, Texas 78701; Edward B. Cloutman, III, Mullinax, Wells, 

Baab & Cloutman, P.C., 3301 Elm Street, Dallas, Texas 75226-1637; J. 

Eugene Clements, Porter & Clements, 700 Louisiana, Suite 3500, 

Houston, Texas 77002-2730; and Robert H. Mow, Jr.,, Hughes & Luce, 

2800 Momentum Place, 1717 Main Street, Dallas, Texas 75201. 

  

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Renea Hicks 

 



pl » Rep. LARRY Q. EVANS - Houston 
Chairman 

Rep. Al. PRICE - Beaumont 

Vice Chairman 
Rep. SENFRONIA THOMPSON - Houston 

Secretary 
Rep. HAROLD DUTTON - Houston 

Treasurer 
Rep. FRED BLAIR - Dallas 
Rep. WILHELMINA DELCO « Austin 

Rep. AL EDWARDS - Houston 
Rep. SYLVESTER TURNER - Houston 

Legislative Black Caucus | Aap. SAMUEL HUDSON Iii - Dallas 
    
  

Sen. EDDIE BERNICE JOHNSON - Dallas 

HOUSE OF REPRESENTATIVES 2323 CAROLINE ep. JERALD LARRY - Dallas 

P.O. BOX 2910 HOUSTON, TEXAS 77004 Rep. KARYNE CONLEY - San Antonio 

AUSTIN, TEXAS 78769 (713) 658-1286 Rap. GAAFIELD THOMPSON - Ft. Worth 

(512) 463-0524 : Sen. CRAIG WASHINGTON - Houston 
Rep. RON WILSON - Houston 

December 28, 1989 

Honorable Jim Mattox 
Attorney General 

State Capitol, Capitol Station 
Austin, Texas 78711 : 

Dear General Mattox: 

The purpose of this letter is to express our support for the 

settlement reached between your office and the Plaintiffs in the 

LULAC v. Midland case. Further, we are of the opinion, given 

‘past History, that a primary partisan election in March ‘as 

opposed to a non-partisan election in November would be more 

likely to encourage minority participation. It is a well known 

fact that winority voters participate in greater numbers in 

primary elections as opposed to general elections. Further, 

there is evidence to suggest that run-off elections in December 

following a November general election have far lower minority 

turnouts and therefore decrease the chances Of minority candi 

dates to be elected. 

  

Please convey to Judge Banton our support for the March primary 

elections of district judges and our opposition to November 

elections with December run-offs. 

vou have any questions or if further information 1s needed, 

please advise. 

Sincerely yours, 

frig a 

Chair, Legislative Black Caucus 

LOE:cyn 

 



  

Jesse Olivet 
NINTH FLOOR 

STEPHEN F. AUSTIN BUILDING 

PO BOX 12847 
AUSTIN, TEXAS 78711 

(512) 483-7601 FAX (510) 463 1104 

Nacember 28, 13983 

The Honorable Lucian Bunton 

Federal Diatrict Judge 

Western District of Texas 

Nidland-Odessa Division 

Midland, Texas 

Re: Lulec Council #4494, E+ Al ve. Jim Mogttox, Et Al: Civil 

Action No. MO~-B8-CA-154 
    

  

Dear Judge Bunton: 

As you may recall, I am one of the Dallas Plaintiff 

Intervenore in the above-referenced case. While I would 

normally communicate with the Court through my attorney of 

record, I hope you will allow me to deviate from this 

practice due to the holiday season and the timeliness of 
this matter. 

I am writing to state my support for the State’s 

proposed compromise plan for interim relief, and toc make 

Clear my opposition to interim relief which would call for 
the non-partisan election of judges. 

First, non-partisan elections would not solve the 
problem of Blacks being unable to elect our influence the 
election of the judges of their choice, A black judicial 

candidate or a non-minoxity candidate who wea ms supported by 

minority votera could always be faced with an appeal to race 
by his opponent. This type of campaigning has occurred on 
numerous occasions in Dallaa County in past elections. This 
eituation is best illustrated in two recent Dallas County 
electiona, the 1388 General Election for Dallas County 
Dietrict Attorney between Royce Wast, who is black, and John 
Vance who is anglo, and the 1988 Republican primary election 
between incumbent Judge Larry Baraka, who is black, and 
Brook Busby, an angle. In teatimony before this Court, it 
was pointed out that Mr. Vance resorted to clear racial 
appeals by running the photoyraph of Mr. West for the sole 
purpose of demonstrating Mr. West's race in campaign 
advertising by Mr. Vance. In the Baraka/Busby, the tactics 

PRY SI 

 



  

The Honorable Lucian Bunton 

December 28, 198% 

Page Two 

were more open, Ms. Buaby obtained an old picture of Judge 
Baraka in which he was wearing a Dashika, and used the 

picture in campaign advertisements to point out that Judge 

Baraka was a Black Muslim. The racial appeal in the 

Baraka /Busby race lead to the unprecedented action of the 

Republican county chair to amctually endorse a candidate in 

tha Republican primary, Judge Baraka (mee P-I Dallas 

Exhibits 29 and 30, a= well as teatimony of Joan Winn White, 
Royce Weet and defendant/intervenor Judge Harold Entz). The 
history of diacrimination in Dallas County is set forth in 

Pleintiff/Intervenors Jegsge Oliver, Et Al (Dallas Countv) 
Pogt-Triml Brief,pages 7-9. To establish non-partisan 

@lectione as interim ralief would be to subscribe to the 

argument of the Defendants that the only reason the 

preferred candidate of black voters falla to win elections 

in Dalles County ies because of party affiliation. Thea 

preferred candidate of black voters will continue to be 
black, brown or non-minority candidataea who support those 
issues whieh the black voting population feels is important 
te it. Issues which can and will be raised againat such 
candidates by their nen-minority opponents. Non-partisan 
alactiones will only remove political parties from the 

proceasa, not solve the problem of racial appeals being made 
by candidates. 

    

Second, it is well known that the drop-off in minority 
voting in run-off electione ia historically large and in the 
paat haa been sufficient to cause minority candidates lose 
elections when the field was reduced to one non-minority 
candidate and the non-minority voters voted as a block to 
elect the non-minority candidate. While I am unable +o cite 
specific electiona in which this has occurred, I feel 
confident that the expumrt attested to this situation during 
the trial on the merits. Such elections would only allow for 
the continued inability of black votere to lect the 
candidate of their choice, 

Third, non-partisan elections would do little, if 

anything to bring down the cost amaocciated with campaigning. 
Minority candidates have historically faced difficulty in 
raising sufficient funds to finance their judicial 
campaigns, while non-minority candidates have had relative 
ease in raising such funds from large non-minority law 
firma. 

  

 



The Honorable Lucian Bunton 

Daecamber 28, 1389 

Page Three 

Fourth, it is difficult for me to perceive that aimply 

changing judicial elections fxom partisan to non-partisan 

would solve the voting rights violation which this suit was 

brought to remedy. Additionally, I would have grave 

reservations about the Justice Department approving such a 

change under the Voting Rights Act. 

Thank you for allowing me this opportunity to provide 

you with my views regarding the remedy stage of this cana. 

Sinceraly, 

et Drm 
em 

agse Oliver 

   



  

UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF TEXAS 
MIDLAND/ODESSA DIVISION 

LULAC COUNCIL #4434, et al., 

Plaintiffs, 

Civil Action No. 

MO 88 CA 154 
VS. 

JIM MATTOX, et al., 

Defendants, LO
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STATE DEFENDANTS' RESPONSE TO MOTION 
TO INTERVENE BY JUDGES RICKHOFF, REED, 

SPECIA, HARLE, MACRAE, AND PEDEN 

The State Defendants reply as follows to the motion to intervene filed 

by six state district judges sitting in Bexar County ("Bexar County judge- 

intervenors"): 

Without conceding the validity of the assertions made in the 

intervention motion and supporting documents, the State Defendants do 

not oppose the motion insofar as the Bexar County judge-intervenors seek 

to intervene in their individual, or personal, capacities. In its rulings 

concerning the attempted intervention of thirteen Travis County judges, 

this Court has held that personal capacity intervention by sitting judges 

may be appropriate whereas official capacity intervention 1s not. In an 

appeal arising out of this case, the Fifth Circuit has agreed, by holding that 

sitting district judges have no legally cognizable interest in this case in 

their official capacity. See LULAC v. Clements, 884 F.2d 185, 188 (5th Cir. 

1989). 

 



Respectfully submitted, 

JIM MATTOX 
Attorney General of Texas 

MARY F. KELLER 
ee. Attorney General 

fe Nye, aN LL Je 

CKS 
Special Assistant Attorney General 

  

JAVIER GUAJARDO 
Assistant Attorney General 

P. O. Box 12548, Capitol Station 

Austin, Texas 78711-2548 

(512) 463-2085 

ATTORNEYS FOR STATE DEFENDANTS 

CERTIFICATE OF SERVICE 

I certify that on this 28th day of December, 1989, I sent a copy of 

the foregoing document by overnight courier to each of the following: 

William L. Garrett, Garrett, Thompson & Chang, 8300 Douglas, Suite 800, 
Dallas, Texas 75225; Rolando Rios, Southwest Voter Registration & 

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

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

Hudson Street, 16th Floor, New York, New York 10013; Gabrielle K. 

McDonald, 301 Congress Avenue, Suite 2050, Austin, Texas 78701; Edward 

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

Dallas, Texas 75226-1637; J. Eugene Clements, Porter & Clements, 700 

Louisiana, Suite 3500, Houston, Texas 77002-2730; Robert H. Mow, Jr. 

Hughes & Luce, 2800 Momentum Place, 1717 Main Street, Dallas, Texas 

75201; and Seagal V. Wheatley, Oppenheimer, Rosenberg, Kelleher & 

Wheatley, Inc., 711 Navarro, a 78205. 

rar hal 
Pad Renea Hicks