Emergency Motion to Stay Final Order Pending Appeal

    ATTORNEY GENERAL 
OF TEXAS 

JIM MATTOX January 10, 1990 
ATTORNEY GENERAL 

VIA HAND-DELIVERY 
Gilbert Ganucheau 
Clerk, Fifth Circuit 
600 Camp Street 
New Orleans, Louisiana 70130 

  

Re: LULAC v. Mattox, No. 90-8014 

Dear Mr. Ganucheau: 

Enclosed for filing in the above-referenced matter are the 
original and three copies of State Officials’ Emergency Motion to Stay 
Final Order Pending Appeal. 

Si 

€a Hicks 7 
Special Assistant Attorney General 

P.O. Box 12548, Capitol Station 
Austin, Texas 78711-2548 
(512) 463-2085 

cc: Counsel of Record 

312/163-2100 SUPREME COURT BUILDING AUSTIN, TEXAN 78711-23518  



  

UNITED STATES COURT OF APPEALS 
FIFTH CIRCUIT 

LEAGUE OF UNITED LATIN 
AMERICAN CITIZENS, et al., 

Plaintiffs-Appellees, 

VS. No. 90-8014 

JIM MATTOX, et al., 
Defendants-Appellants. Co

n 
Co
n 

Go
n 

Go
n 

Lo
n 

on
 

Lo
n 

Un
 

EMERGENCY MOTION TO STAY FINAL ORDER PENDING APPEAL 

Pursuant to F.R.A.P. 8(a), the Attorney General of Texas, on 

behalf of the State of Texas and certain State Officials in their official 

capacities! who were among the defendants below, move the Court to 

stay, during the pendency of the appeal of this matter, the injunction 

in the district court's order of January 2, 1990. Rather than burden 

the Court with duplicate filings, the State Officials incorporate by 

reference the exhibits accompanying the Emergency Application for 

Stay filed on January 4, 1990, by Appellant Entz ("Entz Stay 

Application"). The reasons for this stay application follow the 

introduction: 

INTRODUCTION 

Because of extreme time pressures, see 9 11, this motion has 

been written and quite likely will be filed before the district court acts 

on an important motion, see 9 8, that might affect the nature of the 

district court's remedy as to which a stay is being sought herein. 

  

1 They are the Attorney General of Texas (Jim Mattox), the Secretary of State 
(George S. Bayoud, Jr.), and the members of the Texas Judicial Districts Board (Judges 
Thomas R. Phillips, Mike McCormick, Ron Chapman, Thomas J. Stovall, Jr., James F. 
Clawson, Jr., John Cornyn, Robert Blackmon, Sam B. Paxson, Weldon Kirk, Jeff 
Walker, Ray D. Anderson, and Joe Spurlock II and Mr. Leonard E. Davis). 

 



  

Counsel for the State Officials will notify the Court immediately upon 

the disposition of the pending district court motion. 

The Court also should be aware that yesterday, January 9th, the 

Governor of Texas called a special session of the 71st Texas 

Legislature to convene at 2:00 p.m. on February 27, 1990. One of the 

two purposes identified by the Governor's call is "to consider 

legislation relating to the system for electing state appellate court 

judges, state district court judges and statutory county court judges." 

In light of its two recent orders (dated December 5, 1989, and 

January 3, 1990), in the pending case of Rangel v. Mattox, No. 89- 

6226, the Court should be aware of the Governor's action. 

BACKGROUND 

Outline of Proceedings Before the District Court 

1, On July 11, 1988, the plaintiffs filed their complaint, 

challenging the system of electing state district court judges in 

targeted Texas counties. They claimed that it diluted the voting 

strength of minority voters in violation of Section 2 of the Voting 

Rights Act of 1965, as amended, and the United States Constitution. 

2. By the time trial commenced on September 18, 1989, 

others were parties to the lawsuit: (a) two sets of plaintiff-intervenors, 

one from Harris County and one from Dallas County; (b) Sharolyn 

Wood, an incumbent state district judge in Harris County, in her 

personal capacity; and (c) Harold Entz, an incumbent state district 

judge in Dallas County, in his personal capacity. 

3. Also by the time of trial, the targeted counties had been 

narrowed to nine: Harris (with 59 sitting state district judges): Dallas 

(37); “Tarrant (23); Bexar (19); Travis (13); Jefferson (8); Lubbock (6, 

a. 

 



  

including 1 serving an additional county); Ector (4); and Midland (3). 

The claim was on behalf of Black voters only in Harris, Dallas, Tarrant, 

and Jefferson counties; on behalf of Mexican-American voters only in 

Bexar and Travis counties; and on behalf of Black and Mexican- 

American voters combined in Lubbock, Ector, and Midland counties. 

4. The trial was conducted from September 18-22, 1989. 

5. On November 8, 1989, the district court entered an order 

that the system of electing state district judges in all nine targeted 

counties violated Section 2 of the Voting Rights Act. The district 

court found no constitutional violation. The district court has issued 

subsequent orders correcting clerical mistakes and otherwise 

modifying in certain technical respects its November 8th order.2 

6. On January 2, 1990, the district court issued an order 

enjoining further state district court elections in the nine counties 

under the challenged state system and directing implementation of a 

court-ordered interim remedial plan for the 1990 state district court 

elections in the nine counties. A total of 115 judicial elections are 

affected by the court-ordered interim plan. No permanent plan has 

been ordered to be developed or implemented. 

7 At page 8 of its January 2nd Order, the district court 

denied to the State Officials any further stay of district court 

proceedings. 

8. On January 4, 1990, the Attorney General on behalf of the 

State of Texas filed a Motion to Alter the Order of January 2, 1990. As 

  

- _ The State Officials filed a protective Notice of Appeal of the November 8th 
liability determination on December 22, 1989. 

3 

 



  

explained in the Introduction, at the time of writing, the district court 

has not yet ruled on the motion. 

9. A Notice of Appeal on behalf of the State Officials was 

mailed today by overnight courier service for filing tomorrow with the 

district court. 

OUTLINE OF THE COURT-ORDERED INTERIM REMEDIAL PLAN 
  

10. The district court's interim remedy requires that state 

district judges in the nine affected counties be elected in non-partisan 

elections to full four year terms. There will be an initial election and, 

if no one receives a majority of the votes, a run-off election. Instead of 

the elections being countywide (as they are under the challenged 

system), they will be conducted in sub-districts within the counties. 

The following list shows the number of judicial elections affected by 

the interim plan and the number and type of sub-district in which the 

elections will take place by county: Harris (36 judges from 26 state 

legislative districts); Dallas (32 from 17 state legislative districts); 

Tarrant (14 from 9 state legislative districts); Bexar (13 from 10 state 

legislative districts); Travis (6 from 5 justice of the peace precincts); 

Jefferson (6 from 4 county commissioner precincts); Lubbock (3 from 

4 county commissioner precincts); Ector (3 from 4 county 

commissioner precincts); and Midland (2 from 4 county 

commissioner precincts). 

EMERGENCY NATURE OF MOTION 

11. If the 1990 elections in the nine affected counties are to 

go forward under the challenged system instead of the one ordered by 

the district court, the state must know by Friday, January 12, 1990. It 

is bythat date that state law, 1 Tex. Adm. Code § 81.113, and practical 

vd 

“~
~ 

 



  

necessity dictate that the list of candidates to appear on the party 

primary ballots on March 13, 1990, be completed. 

REASONS FOR GRANTING THE STAY 

Four Basic Factors in Stay Consideration 

  

12. This stay request requires the Court to consider four basic 

factors: (a) whether the State Officials can show a likelihood of 

success on the merits; (b) whether they can show irreparable injury if 

the stay is not granted; (c) whether granting the stay would 

substantially harm the plaintiff-appellees; and (d) whether granting 

the stay would serve the public interest. Hilton v. Braunskill, 107 S.Ct. 

2113, 2119 (1987). Individualized judgments are required in each 

case, thereby precluding rigid application of these rules of thumb. Id. 

These same principles apply to stay requests in vote dilution cases 

such as this one. See, e.g., Cook v. Luckett, 735 F.2d 912, 917 (5th 

Cir. 1984). | 

Likelihood of success on the merits is not an invariable 

requirement and gives way if the other three factors heavily favor the 

State Officials and the legal issue is substantially meritorious. Ruiz v. 

Estelle, 666 F.2d 854, 856 (5th Cir. 1982), cert. denied, 460 U.S. 

1042 (1983). 

h f n M 

13. With regard to the November 8th liability determination, 

the State Officials are likely to prevail for two basic reasons: (a) 

contrary to the district court's dismissal of its principles as irrelevant, 

Whitcomb v. Chavis, 403 U.S. 124 (1971), remains viable law which 

requires that the district court's vote dilution finding be overturned 

because voting along partisan preference lines better describes the 

5, 

 



  

outcome of the analyzed elections that bloc voting along racial lines; 

and (b) Section 2 of the Voting Rights Act is inapplicable to judicial 

elections in which the office being sought by the candidates is one 

involving essentially no collegial decisionmaking. These arguments 

are more fully explored in the State Defendants' Post-Trial Brief, 

which is Exhibit B-3 of the Entz Stay Application. 

14. With regard to the provisions of the interim remedy 

contained in the January 2nd order, the State Officials are likely to 

prevail because there is no legal basis for the district court's order that 

the interim sub-district elections be conducted on a non-partisan 

basis. This remedy is wholly unrelated to any issue before the district 

court and has nothing to do with remedying the vote dilution which 

the district court determined existed in the nine affected counties. In 

short, it is reform, not remedy. Reform is for the Texas legislature 

and the people of Texas through state constitutional amendment. The 

district court's order is a massive incursion into the state legislative 

domain. These arguments are more fully explored in the 

Memorandum Supporting Motion to Alter the Order of January 2, 

1990, and the Statement Concerning Non-Partisan Elections As An 

Aspect Of An Election Remedy, both of which were filed with the 

district court. The former document is attached hereto and 

incorporated herein as Exhibit A to State Officials’ Stay Request. The 

latter document is the first part of Exhibit I-1 in volume II of 

Appellant Wood's Stay Application and is incorporated herein. 

Other Equitable Factors 
15. The district court's order to conduct non-partisan 

elections constitutes a major, unwarranted upheaval of a century-old 

“Bs 

 



  

system of partisan elections in Texas. It is such a major disruption of 

the scheme of things in the Texas judicial system that it runs afoul of 

the Court's directive in Chisom v. Roemer, 853 F.2d 1186 (5th Cir. 

1988) (Chisom II), that federal courts should be especially wary of 

intruding into state election systems and policy choices when the 

state judiciary is concerned. The reason for this admonition is the 

delicacy of the judicial task: 

The core value of the law and its implementing 
judicial system is stability -- the ability 
reasonably to anticipate the results of actions 
and proceedings, by individuals and by legal 
institutions. 

853 F.2d at 1190; cf. Westwego Citizens for Better Government v. City 

of Westwego, 872 F.2d 1201, 1203 (5th Cir. 1989) (reemphasizing in 

non-judicial setting the "potential for serious interference with state 

functions” in voting rights decisions). 

16. There is no real countervailing interest on the plaintiffs’ 

side which would warrant keeping the district court's January 2nd 

order in place during the pendency of this appeal. Although the 

district court permitted no evidence on the point, the apparent fact is 

that non-partisan elections typically disadvantage minority voters as 

compared to partisan elections. At any rate, the plaintiffs asked the 

district court not to impose such a requirement as part of the interim 

remedy. 

CONCLUSION 

For the foregoing reasons, and for the reasons further developed 

in the incorporated exhibits, the State Officials urge the Court to grant 

this emergency stay application before January 12, 1990, and to keep 

i: TA 

 



  

the stay in place during the pendency of this appeal. At least the 1990 

elections should be allowed to go forward under the century-old 

system rather than be displaced on ten days' notice by a new system 

hitherto wholly foreign to the state and its policymakers. 

Respectfully submitted, 

JIM MATTOX 
Attorney General of Texas 

MARY F. KELLER 
First Assistant Attorney General 

TTY 
“RENEA HICKS 

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 
OFFICIALS 

 



  

CERTIFICATE OF SERVICE 

I certify that on this 10th day of January, 1990, 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; John L. 
Hill, Jr., Liddell, Sapp, Zivley, Hill & LaBoon, 3300 Texas Commerce 
Tower, Houston, Texas 77002; and Seagal V. Wheatley, Oppenheimer, 
Rosenberg, Kelleher & Wheatley, Inc., 711 Navarro, Sixth Floor, San 
Antonio, Texas 78205. 

a Hicks Fe NN 
      

 



  

“~
~ 

EXHIBIT A TO STATE OFFICIALS' STAY REQUEST 

 



  

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. on
 

on
 

Wo
n 

Lo
n 

Lo
n 

Lo
n 

un
 

MEMORANDUM SUPPORTING MOTION TO ALTER THE ORDER OF 
JANUARY 2, 1990 

Without conducting an evidentiary hearing and in direct 

contravention of state law and the recently-expressed preference of a 

majority of the Texas Legislature, the Court has directed as part of its 

interim remedial crder of January 2, 1990, that one hundred fifteen 

state < Cirict judges in nine Texas counues be selected through non- 

partisan elections. Straightforwardly stated, this part of the Court's 

order is riot a judicia! remedy: it is judicial reform. The remedial garb 

cannot disguisz its reform character. It cannot be squared with tke 

Court's determination that "[p]arty affiliation is simply irrelevant under 

the controlling law.” Finding of Fact No. 43, Memorandum Opinion 

and Order of November 8, 1989, as modified, at p. 80. 

L_GUIDING PRINCIPLES 

The Court has given no explanation based in law or facts relevant 

10 this case for rejecting century-old state election law. It has made 

no factual findings on the issue; it has expressed no legal conclusions 

on it; and it has conducted no evidentiary hearing on it. It simply has 

announced it. However broad the Court's equitable powers may be, 

th<y neither encompass nor justify what the Court has done. 

 



  

® » 
While this forum is indisputably a proper one to resolve whether 

the rights of minority voters are being protected. it is just as 

indisputably the wrong one for debating whether state judges should 

be elected in non-partisan elections. The Texas Legislature and the 

people of Texas, not this Court, are the proper judges of that debate. 

It is before them that the debate must be conducted and by them that 

the contentious issue must be resolved. The laudable objectives of the 

Voting Rights Act leaves that part of our federal system unperturbed. 

It has not changed the balance so much that all state election policy 

choices may be made by the federal courts. If supported by the facts, 

policy choices that disenfranchise minority voters may be overricden; 

however, some c.oices remain for the states. rere, the Court not oniv 

ex-rcised a policy choice the state alone is entitled to make; in doing 

so, it has adopted a policy widely recognized as harmful to mino:ty 

voters because of its disproportionately depressive effect on minority 

voter turr.. ut. Enhancement of minority voter rights pursuant to the 

dictates of the Voting Rights Act provides no legal justification for 

diminishing those same rights pursuant to the dictates of some 

unspecified law or power.! 

The Court should resist an all-too-understandable inclin: Zion to 

cut the Gordian knot of this difficult debate while wielding its judicial 

sword at other aspects of state election law appropriately within its 

jurisdictional arc. Instead, it is obligated to heed the Fifth Circuit's 

  

i This legal proposition is valid even if, in the short term, the enhancement 
exceeds to some degree the diminishment. The accuracy of such speculation is 
unaddressed by the evidence in this case. Even if it had been, however, the 
diminishment is legally baseless because it is unaccompanied by a-y legal principle. 

J. 

 



  

"staunch admonition” in recent voting rights decision involving 

elected state judges: 

[A] federal court should jealously guard and 
sparingly use its awesome powers to ignore or 
brush aside long-standing state constitutional 
provisions, statutes, and practices. There can 
be no doubt that . . . federal courts do and 
indeed must have this authority in our unique 
form of government. It is the use of this power 
that must be maintained in the balance, a 
balance which is more delicate than usual 
when a state's judicial process is involved. 

Chisom v. Roemer, 853 F.2d 1186, 1189 (5th Cir. 1988): see also 

Cook v. Luckett, 735 F.2d 912, 918 (5th Cir. 1984) (in remedying vote 

dilution, "federal court must honor state policies to the greatest extent 

possible when choosing among available plans or fashioning its own"; 

emphasis added). 

Guided by these governing principles and for the more pract:.al 

reasons set forth below,?2 the Court should re-tailor the interim 

remedy to fit the violation it has found and grant the Motion to Alter 

the Order of January 2, 1990. 

II. PRACTICAL REASONS 
  

A Financial Burden 

The Secretary of State's Office estimates that conducting 1990 

non-partisan elections on the May and June dates ordered by the 

Court will cost between two and three million dollars more than 

conducting elections under the system of party primary and general 

elections governing Texas district judge races for over a century. 

While such a large financial imposition might not constitute a barrier 

  

2 See also Statement Concerning Non-Partisan Elections As An Aspect Of An 
Interim Remedy, filed December 29, 1989. 

in 

 



  

® » 
to equitable relief directly related to violations of the Voting Rights 

Act, it is a legitimate barrier to the imposition of relief unrelated to 

the violations determined by the Court on November 8th. Cf. 

Westwego Citizens for Better Government v. City of Westwego, 872 

F.2d 1201, 1210-11 (5th Cir. 1989) (categorizing costliness of 

reorganization in voting rights cases as irrelevant factor in liability 

finding, although potentially relevant in crafting a remedy).3 

B Administrative Burdens and Associated Uncertainties 

There are massive gaps between the Court's January 2nd 

directive to conduct non-partisan judicial elections in 1990 and the 

statutory framework set forth in the Texas Election Code ‘or 

conducting elections. Set forth below are some of the crucial gaps 

between the provisions of the Election Code, which was not enacted in 

contemplation of non-partisan elections for state officials, and the 

dictates of the Court, which provides no direction on how to conduct 

such elections. 

The order fails to designate the officials responsible for 

conducting the election, and the Election Code does not answer the 

questions of who is to give notice of this election, to order election 

supplies, to print the ballots, to appoint the election judges and clerks 

for the polling places, to conduct absentee voting, and to canvass the 

election returns. 

  

3 There is an additional financial considerations apparently not contemplated in 
the Court's order. State statutes make no provision for the State to pay for the Court- 
ordered election. The counties likewise lack the statutory authority to do so. Who is to 
pay is a question that state law leaves unanswered. The order also fails to specify: 
whether the candidates must pay a filing fee: what the fee is; who is to receive the fee: or 
whether a petition in lieu of a filing fee is permitted. The Election Code does not answer 
any of these questions. 

 



  

The order does not recognize that county-owned voting 

equipment is traditionally used in the primary elections and by other 

political subdivisions conducting elections on uniform election dates. 

This court-ordered May and June election will severely interrupt the 

state's other elections if the county retains its equipment for the 

court-ordered election and refuses to provide it to the political parties 

and other political subdivisions. 

The order does not prescribe a method for determining the 

order in which opposing candidates names will appear on the non- 

partisan ballot for the judicial races. 

The order does not specify which election precincts are to be 

used in he county nor does it address the permissibility of 

consolidating election precincts for this election. 

The order is silent on the period for absentee voting. The 

Election Code gives no guidance on the absentee voting period for the 

cour” -ordered runoff. 

The order does not address the permissibility of write-i- 

candidates in the election or whether a declaration of intent to run as 

a write-in is required. 

The order does not discuss whether candidates may withdraw 

from the election or establish a deadline for such withdrawal. 

The order does not name the authority responsible for 

canvassing the returns of the election. It does not address whether 

the canvass is conducted locally only or whether a state-level canvass 

is required.4 
  

4 The order creates yet another anomaly, apparently uncontemplated by the 
Court. There is a possibility (indeed a likelihood) that additional vacancies will occur 
in the office of district judge in the nine affected counties. Such vacancies will be filied 

5. 

 



  

The order does not specify the recount procedures to be 

followed in the election. The failure to specify the canvassing 

authority renders the Election Code provisions useless for a recount of 

the election. 

The transition from the current electoral system for state offices 

to the non-partisan system mandated by the Court cannot be made 

under the existing combination of the Texas Election Code and the 

Court's January 2nd order. The Court will have to amend its order 

either to direct additional changes to the state election process or to 

permit use of the existing state process of party primaries and general 

elections. The latter course clearly is more consistent with the 

Court's rulings, the Voting Rights Act, and fundamental principles of 

federalism. Within the confines of the violations found by the Court, it 

would accomplish two laudable goals: minimization of disruption of 

the state electoral process; and enhancement of the interim relie: 

afforded the plaintiffs. 

HL CR -FILIN RNATIVE 

There is an alternative to the court-ordered plan which, while it 

still presents substantial difficulties, alleviates to some extent the 

administrative and financial burdens discussed in Part II, above. It is 

not being recommended to the Court, merely noted for its 

consideration. 

Earlier incarnations of state election law permitted "cross-filing" 

for elective offices. The Court might consider a version of cross-filing 

to be appropriate in the matter now before it. Candidates for state 

  

in accordance with the Election Code. which means that those unexpired terms will be 
filled in countywide partisan elections. 

 



  

district judge could file with either or both political parties to appear 

on the March primary ballot. Filing would be accompanied either by a 

petition with the appropriate number of signatures or by a filing fee 

which would be split between the two parties. Candidates then would 

appear on both parties ballots in the March primary. Any runoff then 

would occur in the November general election. 

CONCLUSION 
  

The Court's directive to conduct non-partisan district judge 

elections in 1990 unduly and unnecessarily intrudes into a matter 

lying within the state legislature's domain. Through his submittal of a 

joint motion urging adoption of the proposed interim plan, the 

Attorney General on behai. of the State of Texas harmonized as much 

as possidle the Court's November 8th mandate to revise the state 

electoral system to protect minority voting rights with long- 

established state policies expressed in fundamental state law. The 

Attorney General urges the Court to re-establish that harmony by 

receding [rom its order that non-partisan elections be part of the 

interim remedy. 

 



  

Respectfully submitted, 

Co] Aan Mot, 

JIM MATTOX 

Attorney General of Texas 

  

P. O. Box 12548, Capitol Station 
Austin, Texas 78711-2548 

(512) 463-2191 J’ 

CERTIFICATE OF SERVICE 

I certify that on this 4th day of January, 1990, 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; Rc indo Rios, Southwest Voter Registration 
& Education Project, 201 N. St. Mary's, Suite 521, San Antonio. Teas 
78205; Sherrilyn A. Ifill, NAACP Legal Defense nd Educational Fund, 
Inc., 99 Hudson Street, 16th Floor, New Yc:k, 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. 

: / 

> oll NS ee 
  

Reread Hicks