Plaintiff-Intervenors Houston Lawyers Association's Post-Trial Brief

    Sl A FTI IP BE TE 

    

IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

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

PLAINTIFFS, 

VS. 

PIAINTIFF-INTERVENORS HOUSTON LAWYERS ASSOCIATION 
ET AL.’S POST-TRIAL BRIEF 
  

  

Based on the totality of the circumstances, the law 

governing application of the Voting Rights Act and the evidence 

offered at trial in the above captioned case, plaintiff- 

intervenors Houston Lawyers’ Association, Alice Bonner, Weldon 

Berry, Francis Williams, Deloyd T. Parker, Bennie McGinty 

‘respectfully request that this Court find the present at large 

system of electing district judges in Harris County, Texas 

violative of both Section 2 of the Voting Rights Act of 1965, as 

amended, the United States Constitution and 42 U.S.C. §1983. 

I. Plaintiff-Intervenors Have Met the Three-Prong Gingles Testl   

The Supreme Court has articulated three central elements of 

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

  

lplaintiff-intervenors’ Pre-Trial Brief outlined the 
applicable legal standard for adjudication of this case. 

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

and geographically compact to constitute a majority in a single 

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

politically cohesive, and that its members tend to support the 

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

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

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

478 U.S. 30, 50-51 (1986). Plaintiff-intervenors in Harris 

County have proven each element of Gingles’ three-pronged test.   

A. Blacks in Harris County are Sufficiently Large and 
Geographically Compact to Constitute a Majority 
in a Single Member District 

  

  

  

Plaintiff-intervenors in Harris County presented both lay 

and expert testimony demonstrating that Blacks are sufficiently 

large and geographically compact so as to constitute a majority 

in a single member district. 

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

drawn numerous districting plans currently in effect throughout 

the country, found that at least thirteen (13) majority Black 

single member districts could be fairly drawn in Harris County. 

Seg’ P-I Harris Exhibit 2. Each of these districts would be 

majority Black in total population, voting age population and 

estimated registered voter population. P-I Harris Exhibit 2b. 

Although, the Supreme Court has ruled that the one person-one 

vote principle does not apply to judicial districts, Wells v. 
  

Edwards, 347 F.Supp. 453 (M.D, LA. 1972), aff’dq 409 U.S. 1095 

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(1973), twelve of Mr. Wilson’s proposed districts were drawn in 

accordance with this principle. 

As a result of his analysis of demographic patterns in 

Harris County Mr. Wilson testified in fact, that Blacks live in 

such concentrated residential areas in Harris County that 

theoretically eight districts with a Black population of 100% 

could be drawn, adhering to the one person-one vote principle. 

Defendants presented no evidence or testimony to rebut the 

plaintiff-intervenors’ clear proof of the first prong of Gingles. 

In fact, defendant-intervenors’ witness, Judge Mark Davidson, 

supported the contention that Harris County is highly 

residentially segregated on the basis of race. 

B. Plaintiff-intervenors Established that Voting in Harris 
County is Racially Polarized 
  

  

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

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

  

Government, et al., v. City of Westwego, Civ. Ac. 87-3761 (5th 

Cir. 1987, Slip Op. at p. 15. Both plaintiff-intervenors and 

defendants agree that voting in Harris County is racially 

polarized. According to plaintiff-intervenors’ expert Dr. 

Richard Engstrom, voting in Harris County is racially polarized 

so that if the same election were held in the white community and 

in the Black community the winner of the election would be 

different. Utilizing the standard analytic techniques to 

determine racially polarized voting -- bivariate ecological 

regression and extreme case analysis -- Dr. Engstrom tesitified 

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that a clear pattern of racially polarized voting was present in 

district judge elections in Harris County, in contests involving 

both Black and white candidates.? In sixteen of the seventeen 

elections analyzed by Dr. Engstrom, Black voters overwhelmingly 

supported the Black candidates, giving no less than 95% of their 

votes to Black candidates, while white voters gave an average of 

35% of their vote for Black candidates in these same contests. 

While conceding that voting is indeed racially polarized in 

Harris County, defendants’ expert Dr. Taebel, attempted to 

undermine the significance of Dr. Engstrom’s findings, by 

analyzing white on white and Hispanic on white elections to show 

  

2Counsel for defendant-intervenor Wood objected to Dr. 
Engstrom’s testimony and analysis (P-I- Exhibit 1), on the 
grounds that the underlying demographic data relied upon by Dr. 
Engstrom had not been properly identified or predicated. Dr. 
Engstrom testified that P-I’s Exhibit 8 is the raw data which he received directly from Dr. Richard Murray, a well-respected and 
well known political scientist, who currently teaches at the 
University of Houston. This data was independently checked at to 
Hispanic demographic ‘data by Dr. Engstrom. Dr. Engstrom also 
testified that the scattergrams which resulted from his analysis 
based on Dr. Murray’s raw data was consistent with those resulting his analysis based on the 1980 Census information. 

The reliability of Dr. Murray’s data was further supported by the defendant and defendant-intervenor’s own expert, Dr. Delbert Taebel, who also used Dr. Murray’s data for his analysis 
and who attested to the reputation of Dr. Murray for possessing 
knowledge of Houston area precincts. Dr. Taebel testified that 
he used Dr. Murray’s demographic data with confidence based upon his knowledge of Dr. Murray, and Dr. Murray’s reputation. 
Finally Dr. Taebel noted that although he contacted Dr. Murray 
himself to receive the demographic data, it was counsel for the 
defendant-intervenor Wood who actually provided Dr. Taebel with 
Dr. Murray’s precinct data charts. This same counsel now 
objects to the use of the data by the plaintiff-intervenors’ 
expert. 

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that Blacks and whites often prefer the same candidates.3 Dr. 

Taebel conceded, however, that these elections Provide the court 

with no information on the existence of racially polarized voting 

when a Black candidate is the preferred candidate of the Black 

community. Instead, Dr. Taebel noted that the results of his 

analyses of the district judge contests involving Black and white 

candidates differed little from the results found by ‘Dr. 

Engstrom. 

Dr. Taebel’s use of white on white eledtions to show that 

Blacks and whites often prefer the same candidates, merely 

supports the plaintiff-intervenors’ claim of racially polarized 

  

voting. As the trial court noted in Clark v. Edwards, Civ. Ac. 

No. 86-435 (M.D. la. Aug. 15, 1988), quoting East Jefferson 

  

Coalition v. Jefferson Parish, 691 F.Supp. 991, 1001 (E.D. la. 

1099), "[t]lhe fact that Blacks and whites prefer the same 

candidates in white only elections, but different candidates 

when Blacks enter the race is strong evidence that racially 

polarized voting exists." Slip op. at 31. 

C. Plaintiffs Established that Black Voters in Harris 
County are Politically Cohesive 
  

  

Proof of racially polarized voting serves two purposes: it 

  

3pr. Engstrom’s focus on electoral contests involving Black 
and white candidates is well supported, particularly when, as in 
this case, Black voters almost always preferred the Black 
candidate in such races, See gingleg, 478 U.S. at 57, n. 25. 
See also, Citizens for a Better Gretna v. Gretna, 636 F.Supp. at 
1133: McNeil v. City of Springfield, 658 F.Supp. 1015, 1030 (C.D. 
I1l. 1987); Smith v. Clinton, 687 F.Supp. 1310 (E.D. Ark. 1988). 

  

  

  

  

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supports a claim that Blacks are politically cohesive and that 

the white majority votes as a bloc. Gingles 478 U.S: at 56. As 

discussed above, the level of racial polarization in Harris 

County demonstrates the presence of cohesiveness among Black 

voters. In 16 of the 17 outcome determinative elections 

identified in P-I Harris Exhibit I, Black candidates were the 

overwhelming choice of Black voters, receiving no less than 95% 

of the votes cast by Blacks in Harris County. Both plaintiff- 

intervenors and defendants’ expert witness agreed that voting is 

racially polarized in Harris County. 

D. Plaintiff-intervenors Established that the White 
Majority in Harris County Votes Sufficiently as a Bloc 
to Result in the Defeat of the Minority Group’s 
Preferred Candidates 

  

  

  

  

Plaintiff-intervenors clearly established that white bloc 

voting in Harris County is sufficient to defeat the preferred 

candidate of the Black community, absent special circumstances. 

In contests involving Black and white candidates running for 

district judge in Harris County, the Black candidate when 

supported by the Black community was almost inevitably the loser 

in the election. Since 1980, only two Black candidates, who were 

the choice of the Black community won contested district judge 

general elections. One Black candidate supported by the Black 

community was successful in winning a county court at law general 

election. 

Defendant and defendant-intervenors’ entire case ceritered 

on the view that an electoral system should be immunized from 

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section 2 attack merely because it utilizes partisan elections. 

Witnesses for the defendant and the defendant-intervenors argued 

that factors other than race, particularly political party, 

explained the lack of success of Black candidates, and not white 

bloc voting. Indeed for each of the fourteen district judge 

elections in which the Black candidate preferred by the Black 

community lost the election, the defendants and defendant- 

intervenors attempted to articulate a "non-racial" rationale for 

the defeat of that candidate. Thesé excuses included, but were 

not limited to: party affiliation; Bar Association poll results; 

lack of adequate campaigning; Anglo-Saxon candidate name; 

incumbency; name redoanition, bad publicity and coattail effects. 

By the admission of the defendant and defendant-intervenors own 

witnesses however, none of these factors could consistently 

explain the defeat of Black candidates. For instance, in the 

1986 general election three Democratic Black incumbent judges 

(one district judge Bind Evo county court at law judges) lost the 

election, while all white incumbent Democrats won that year, and 

former Gov. Mark White, who overwhelmingly won Harris County was 

at the top of the ticket. None of these incumbents had received 

any "bad publicity" prior to the election, and one of the Black 

incumbents, Francis Williams, won the Houston Bar Poll. 

Defendants’ own expert Dr. Taebel, conceded at the close of his 

testimony, that "it would be impossible" to include factors such 

as incumbency, bad publicity and other factors cited by witnesses 

for the defendant-intervenors into an analysis of white bloc 

  

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voting, and that such factors are irrelevant to a determination 

of the existence of white bloc voting. 

Instead, the defendants’ and defendant intervenors’ 

witnesses referred repeatedly to the role that "swing voters" 

play in determining the outcome of elections. According to the 

defendants’ witnesses, Black voters vote overwhelmingly for 

Democratic candidates. Plaintiff-intervenors concede that Black 

voters are largely affiliated with the Democratic Party. 

Defendants and defendant-intervenors went on to explain that the 

Republican vote in Harris County is overwhelmingly white. Both 

Dr. Taebel and Judge Davidson then conceded that those voters 

they identified as "swing voters" are overwhelmingly white. 

Since the Republican vote (identified as predominantly white), 

the swing vote (also overwhelmingly white), and the white 

Democratic vote, clearly does not support Black candidates 

running in district judge elections, Judge Davidson’s and Dr. 

Taebel’s testimony clearly supports the existence of a white bloc 

of votes which usually functions to defeat the Black preferred 

Black candidate. 

The disparity in the success of white Democratic judicial 

candidates compared to Black Democratic judicial candidates is 

further evidence of the existence of racial bloc voting. Despite 

their testimony that voting in Harris County is strictly along 

party lines, neither the defendant’s expert Dr. Taebel, nor Judge 

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Mark Davidson, who testified for defendant-intervenor Wood, 4 

could provide an explanation for the fact that 52% of white 

Democrats running in contested district judge general elections 

since 1980 have been successful, while only 12.5% of Black 

Penoeratis district judge candidates have been successful. Dr. 

Engstrom testified in fact, that 75% of Black candidates running 

in contested district judge general elections in Harris County, 

received a total number of votes which consistently put them in 

the bottom half of Democratic vote getters. See also, Gingles v.   

Edminsten 590 F.Supp. 345, 368 (E.D. N.C. 1984), aff’d Thornburgh 

Vv. Gingles 478 U.S. 30 (1986) (white voters in heavily Democratic   

areas consistently ranked black Democratic candidates next to 

last among all candidates). 

In contrast to the defendant and defendant-intervenors 

attempts to offer a myriad of ostensibly non-racial reasons for 

the defeat of Black candidates, Dr. Engstrom testified that the 

correlation coefficients revealed in his bivariate regression 

analyses of Black on white district judge contests in Harris 

County, had a 1 in 100,000 probability of appearing by chance. 
  

“‘Defendant-intervenors, while not formally doing so, attempted to offer Judge Davidson’s testimony as expert testimony. Plaintiff-intervenors objected on several 
grounds. Judge Davidson is neither a political scientist, nor a statistician, nor a legislative historian. His testimony was comprised of anecdotal speculation about possible non-racial reasons why Black candidates lost judicial elections in Harris County. Judge Davidson, a sitting district judge with a clear interest in the maintenance of the current at large system which elected him to the bench in Harris County, offerred the court no recognized or consistent methodology to support his speculation. This Court should give little or not weight to Judge Davidson’s 
observations. 

  

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Correlation coefficient is the standard measure of whether Black 

and white voters vote differently from each other. As the 

District Court noted in Gingles and as Dr. Engstrom stated in the 

case at hand, "correlations above an absolute value of .5 are 

relatively rare." 500 F.Supp at 368, n. 30. Fourteen of the 

seventeen correlation coefficient revealed in Dr. Engstrom’s 

analysis were above .8. See P-I Harris Exhibit 1. 

Most importantly, the defendant and defendant-intervenors 

attempts to explain away the defeat of Black candidates in the 

face of clear racially polarized voting is entirely at odds with 

the Supreme Court’s and this circuit’s guidelines for examining 

the existence of racial bloc voting. The court in Gingles 

recognized, that consistent with congressional intent," it is 

the difference between the choices made by blacks and white-- 

not the reasons for that difference -- that results in blacks 

having less opportunity than whites to elect their preferred 

representatives." Gingles, 478 U.S. at 63 (emphasis in 

original) .> The defendant-intervenors’ view, that white bloc 

voting must be accompanied by racial animus among white voters, 

  

SCounsel for defendant-intervenors argued at trial that this view represents merely a plurality of the court, because Justice White expresses disagreement with Part III C of Justice Brennan’s opinion. A careful reading of Gingles and Justice White’s 
concurrence however, reveals that Justice White’s disagreement with the majority is limited to Justice Brennan’s view that the race of the candidate is irrelevant to an analysis of racially polarized voting. See GCingles, 478 U.S. at 83 (J. White, concurring). At no point in Justice White’s concurrence does he express disagreement with Justice Brennan’s discussion of the irrelevance of the reasons why Black and white voters support 
different candidates. 

  

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would incorporate into a dilution claim precisely the intent 

requirement which Congress voted overwhelmingly to remove from 

section 2. "Under the old intent test, plaintiffs might succeed 

by proving only that a limited number of elected officials were 

racist," [under the intent test advanced by the Gingles 

appellants and the defendant-intervenors in the case at hand], 

"plaintiffs would be required to prove that most of the white 

community is racist in order to obtain judicial relief. It is 

difficult to imagine a more racially divisive requirement." 

Gingles, 478 U.S. at 72. Such a test "would be equally, if not 

more, burdensome" on plaintiffs seeking relief. Id. 

In Gingles, the North Carolina defendants offered the same 

excuses offered by the defendants and defendant-intervenors in 

the instant case to explain the consistent defeat of Black 

candidates supported by the Black community. In that case, the 

North Carolina appellants offered party affiliation, age, 

religion, income, incumbency, education, campaign expenditures, 

media use, name, identification and distance that a candidate 

lived from a particular precinct, as other variables that may 

determine voter behavior. See, Gingles, 478 U.S. at 61-62. The   

court expressly rejected the inclusion of these factors into a 

fair section 2 analysis.® In the case at hand, the defendant- 
  

6As the court in Gingles noted, "Many of the[se] independent variables . . . would be all but impossible for a social scientist to operationalize as interval-level independent variables for use in a multiple regression equation, whether on a step-wise basis or not." 478 U.S. at 73, quoting McCrary, Discriminatory Intent: The Continuing Relevance of Purpose’ Evidence in Vote-Dilution Lawsuits, 28 How LJ 463, 492 (1985). 

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intervenors’ list of variables is almost as long.’ Defendant- 

intervenors fail to recognize however, that "the legal concept of 

racially polarized voting incorporates neither causation nor 

intent." Id. at 62. 

Finally, neither the court nor the defendant-intervenors’ 

counsel can substitute their view of the viability of particular 

Black candidates for the clear and overwhelming choice of Black 

voters. This circuit has clearly held that a "viable candidate 

is one which the mincrity group sponsors," Campos v., Citv of 
  

Baytown, 840 F.2d 1240, 1245 (5th Cir. 1988). 

IT. Additional Senate Report Factors 

A. History of Discrimination 

Texas’ history of official discrimination touching upon the 

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

in an extensive appendix t itis decision in LULAC Vv. Midland 
  

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

  

Defendant’s expert in the case at hand, Dr. Delbert Taebel also 
testified that it would be impossible to assess the effect of all 
of these variables in a consistent manner. 

7 Judge Mark Davidson, who testified on all these factors 
for the defendant intervenors, and who is a self-described 
"political statitistician hobbyist," presented the court with no 
recognized or consistent methodology for analyzing the effect all 
of these factors may have on voter behavior. Instead, Judge 
Davidson speculated on the effect different campaign methods, and 
candidates’ names may have had on voters. In fact, Judge 
Davidson was unable to explain why some Democratic Black 
candidates who had the benefit of incumbency, favorable Bar Poll 
results, Anglo-Saxon names and good campaigning, were defeated in 
Judicial elections in years in which most Democratic judges in 
Harris County were successful. 

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

and statutory history replete with racially discriminatory 

provisions and codes which required among other things, the 

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

schools for Black and white students, segregated rail cars, 

buses, libraries, orphanages, employee bath facilities, and 

parks. 

Plaintiff-intervenor Weldon Berry testified that he attended 

Texas State University for Negroes, before it became known as 

Texas Southern University. No law school in Texas admitted Black 

students prior to the opening of TSU in 1948, which resulted 

directly from a suit being filed which resulted in the Supreme 

Court’s decision in Sweatt v. Painter, 339 U.S. 629 {1950). Mr.   

Berry, as lead counsel for Black plaintiffs testified that the 

Houston Independent School District, which had been challenged as 

segregated 25 years ago, was not declared unitary until 1981. 

Houston Independent School District wv. Ross, 699 F.2d 218 (5th   

Cir. 1983). 

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

Both the Senate Report and courts have acknowledged the role 

"that disproportionate educational, employment, income level and 

leiving conditions arising from past discrimnation" have on 

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

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

  

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

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(E.D. La. 1983). 

The Black population in Harris County continues to bear the 

effect of racial discrimination in such areas as education, 

employment and health. These effects hinder its ability to 

participate in the political process on an equal basis with the 

white population. The 1980 Census population reports reveal a 

striking disparity in the socioeconomic indicators for Blacks and 

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

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

income for Black families in Texas was $13,042. See Plaintiff’s 

Exhibit H-08. 

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

Of the 59 district judges currently serving Harris County, 

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

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

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

judge election since 1980. One of the three currently sitting 

Black district judges, John Peavy was initially appointed to the 

bench and has run unopposed since 1978. Thomas Routt, another of 

the Black sitting district judges was also first appointed to the 

bench and narrowly missed defeat in 1982 a white virtual unknown 

candidate, despite the fact that Routt was an incumbent Democrat, 

running in a year in which Democrats took 13 of the 17 district 

judge seats up for election. The other sitting Black district 

judge, Carl Walker won in 1986, succeeding in winning a seat held 

14 

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by an immediate predecessor also named Walker. 

The election of Blacks to public office has increased in 

Harris County primarily as a result of changes from at large to 

single member district electoral systems in the city of Houston. 

Plaintiff-intervenor Weldon Berry testified that Blacks were 

first elected to the Houston city school board, once the board 

switched from an at large to a single member district system. 

Similarly, Blacks became elected to the Houston city council in 

significant numbers once the city council was changed from a pure 

at large electoral system to a mixed at large, single member 

district system. 

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

Defendants and defendant-intervenors offered no sound 

rationales for the maintenance of an at large election system for 

district judges in Texas. Instead, defendant’s witnesses argued 

that judges elected from smaller districts might be subject to 

undue influence by drug dealers and criminals. This argument is 

wholly unpersuasive. Judges elected at large are theoretically 

Just as easily subject to influence by the vast financial 

resources at the disposals of drug dealers, as judges elected 

from single member districts would be. In addition, judges 

currently elected at large, who require large financial 

contributions from law firms to conduct expensive countywide 

campaigns can be potentially influenced by campaign donors as 

15 

  

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well. 

Chief Justice Thomas Phillips testified for the defendants, 

that the purpose of Article 5, Section 7 of the Texas 

Constitution was to create a body, the Judicial Districts Board, 

which could equalize the dockets of district judges. Justice 

Phillips was unable to explain however, how the requirement that 

judges be elected from districts no smaller than a county would 

further such a purpose. 

Justice Phillips conceded under oath that the current system 

for electing district judges in Texas is "harsh on minorities." 

He also testified that he supported a change from the current 

method of electing district judges, and was concerned only about 

what system would be put in its place. 

Several witnesses, including Justice Phillips, noted that 

the countywide electoral district for district judges in Texas 

dates back to the 1870’s. No witness could explain however, why 

it suddenly became necessary in 1985 to codify a practice which 

had been followed in Texas for over 100 years. Moreover, the 

fact that a challenged practice has been used since the turn of 

the century has never been thought to immunize that practice from 

challenge. See, Loving v. Virginia, 388 U.S. 1 (1967) ; Brown v.   

  

  

Board of Education, 347 U.S. 1 (1954). The legislative history 

of the 1982 amendments to the Voting Rights Act specifically 

addresses this issue: 

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

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it was adopted, i.e., whether it is a change. 

H.R. Rep. No. 97-227, p.28 (1982). 

Defendant-intervenor Wood offered the testimony of Ray 

Hardy, the district clerk of Harris County, to demonstrate that a 

change in the current system might result in costly 

administrative changes for the district clerk’s offices.® The 

fact that a change in the current system might require even a 

costly reorganization of the state’s judicial administrative 

structure "is not a sufficient ground for maintaining an 

otherwise flawed system." Westweqo Citizens for a Better 
  

  

Governement v. City of Westwego, Slip Op. at 23. 

ITI. Plaintiff-Intervenors’ Intent Claim 

Plaintiff-intervenors have raised both consitutional and 

statutory claims regarding the reasons for the enactment and 

maintenance of the at large method of electing district jduges in 

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

statutory grounds, if possible, before reaching the 

constitutional issues. Escambia v. McMillan, 466 U.S. a8 (1984).   

Plaintiff-intervenors argue that Article 5, Section 7 (a) (i) 

was created with the purpose of diluting the voting strength of 

Black voters in district judge elections. Plaintiff-intervenors’ 

claim is based on the legislative history from both 1983 and 
  

8Mr. Hardy also testified however, these drastic changes would only result if district judges no longer retained countywide jurisdiction. The question of jurisdiction and venue is best addressed at the remedy stage of these proceedings. 

17 

RE TEAR ee a a NERA Sp EER TOR ae Xo RE PE eR LT Re a TBR RSS ARTERITIS Ra a I aS, AN TTIIT TAI TI ESR PT 0 As Sabi a BAe EEN TRT Sein Bias ATI re AIR EI a ei A DRA TRI Re WT 

 



      

1985, see Pet Exhibit 7, which demonstrates that the foreseeable 

result of the legislature’s actions in requiring countywide 

district judge elections would be to minimize the opportunity for 

Black voters to elect candidates of their choice to the 

judiciary. This Court may infer intent by using "the normal 

inferences to be drawn from the foreseeability of defendant’s 

actions," Senate Report at p. 27, n. 108, and at P. 37, n. 136, 

See also, Rogers v. ILodge, 458 U.S. 613 (1982).   

Sen. Craig Washington, who in 1983 proposed an amendment 

that district judges be elected from single member districts, to 

the then contemplated bill proposed by Sen. Caperton which would 

have created the judicial districts board, testified that in 

1985, he was surprised to learn that the compromise he had worked 

out with Sen. Caperton, had been changed in the House and in the 

final Conference Committee Report.® See Deposition Summary of 

Sen. Craig Washington at p.19 (Deposition page 179) and p.20 

(Deposition page 182). The compromise language would have 

permitted single member districts to be created in the discretion 

of the Judicial Districts Board. Sen. Washington had engaged in 
  

Defendant-intervenors offer the signature of Craig 
Washington on the final Conference Committee Report and the 
testimony of Judge Mark Davidson to rebut Senator Washington’s 
testimony. In his deposition, Sen. Washington conceded however, 
that he lost track of the issue after it went to the House in 
1985 and was "a little bit embarraseed that I hadn’t kept up with 
the issue." See Deposition Summary at p. 19 (Deposition page 
179). The testimony of Judge Davidson, who testified that in 
both 1983 and 1985 he was employed full time in Harris County as 
an attorney, not as a legal historian nor as a legislative aide, 
should be given little weight as rebuttal of the testimony of 
Sen. Washington who was in Austin at the time, and worked on the 
bill in question for several years. 

18 

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a lengthy debate and discussion with Committee members in 1983, 

on the effect that a single member judicial electoral system 

would have on representation for minorities. See P-I Harris 

Exhibit 7, pp. 2 =-12. In 1985, the Senate bill proposed by Sen. 

Caperton maintained the Washington compromise language before 

being sent to the House because Sen. Caperton feared that taking 

the compromise language out "may get us some problems from some 

place else, from other corners..." ©P-I Harris Exhibit 7 at p. 

18, clearly referring to Sen. Washington’s impassioned support of 

a single member electoral system for district judges. 

In Rogers, the court noted that the factors identified in 

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

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

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

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

n. 113 -- provided substantial circumstantial evidence to support 

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

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

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

In addition, there is significant evidence of the legislature’s 

knowledge of the effect the maintenance of an at large system of 

electing district judges would have on the ability of Black 

voters to effectively participate in district judge elections. 

Based on the totality of the circumstances and evidence 

produced at trial plaintiff-intervenors Houston Lawyers’ 

19 

PIE ria ro a A ATER To OR La Wn ned PE rae i SE hn a Be Rn Td 0d 7 NL ATR le Sho RF SARE CANE RR SERIE Nr 

 



   i a5 wl Cer a Bt RRA I al CTA Ba ER, WC Ssindvm on A SRE a ALA NI 

~ 

  

» ® 

Association, et al respectfully request that this Court find the 

present at large system of electing district judges in Harris 

County, Texas violative of both Section 2 of the Voting Rights 

Act of 1965, as amended, 

U.S.C. §1983. 

Of Counsel: 

MATTHEWS & BRANSCOMB 

A Professional Corporation 

the United States Constitution and 42 

Respectfully submitted, 

  

JULIUS L. CHAMBERS 

SHERRILYN A. IFILL 

99 Hudson Street 

16th Floor 

New York, NY 10013 

(212) 219-1900 

GABRIELLE K. MCDONALD 
301 Congress Avenue 

Suite 2050 
Austin, Texas 78701 
(512) 320-5055 

Attorneys for Plaintiff- 
Intervenors Houston Lawyers’ 
Association, et al. 

20 

AT Tle TA a CPW RE I a a in 3 TR BRN eT at Arial A iB AR BATES Te OT NE ED ei i hn Bi a Bea Toh A Ts 2 Oe i, CLE shh = ars Sey RTE SEIS LASERS, IRA IE Tel Se 

 



  

CERTIFICATE OF SERVICE 

I hereby certify that on this 28th day of September, 1989 a 

true and correct copy of Plaintiffs-Intervenors Post-Trial Brief 

was mailed to counsel of record in this case by first class 

United States mail, postage pre-paid, as follows: 

William L. Garrett 
Brenda Hull Thompson 

Garrett, Thompson & Chang 
700 Louisiana, Suite 3500 
Houston, TX 77002-2730 

Rolando L. Rios 

Southwest Voter Registration 
Education Project 

201 N. St. Mary's, Suite 521 
San Antonio, TX 78205 

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

Edward B. Cloutman, III 

Mullinax, Wells, Baab & 

Cloutman, P.C. 

3301 Elm 

Dallas, TX 75226-9222 

Jim Mattox 
Mary F. Keller 

Renea Hicks 
Javier Guajaro 
Attorney General's Office 
P.O. Box 12548 

Austin, TX 78711 

\ bi AA 

J. Eugene Clements 
John E. O'Neill 
Evelyn V. Keys 
Porter & Clements 
8300 Douglas, Suite 800 
Dallas, TX 75225 

Michael J. Wood 

Attorney at Law 

440 Louisiana, Suite 200 

Houston, TX 77002 

Ken Oden 
Travis County Attorney 
P.O. Box 1748 

Austin, TX 78767 

David R. Richards 

Special Counsel 
600 W. 7th St. 

Austin, TX 78701 

Robert H. Mow, Jr. 

Hughes & Luce 
2800 Momentum Place 

1717 Main Street 

Dallas, TX 75201 

Gabrielle K. McDonald 
Matthews & Branscomb 
A Professional Corporation 
301 Congress Avenue 

Suite 2050 
Austin, Texas 78701 

4 

wi 
  

Sherrilyn /A. Ifill { 
Attorney for Plaintiffs-Intervenors 
Houston Lawyers' Association 

das