Motion for Leave to File a Brief Amicus Curiae; Brief of Amicus Curiae of Mexican American Legislative Caucus et al.

    ROLANDO L. RIOS 
Attorney At Law 

201 N. ST. MARY'S, SUITE 521 
SAN ANTONIO, TEXAS 78205 

512-222-2102 

March 6, 1990 

Gilbert F. Ganacheau, Clerk 
United States Court of Appeals 
for the Fifth Circuit 
600 Camp Street 
New Orleans, Louisiana 70130 

Re: LULAC #4434, et. al. v. Mattox, et.al. Att: Eileen Boudouin Civil Action No. 90-8014 

Dear Mr. Ganachecau: 

Enclosed please find an original and four copies of a brief amicus curiae that Orlando Garcia, attorney for the applicants, has asked me to submitt to the court. 

Copies of the brief have been supplied to all the attorneys of record. 

/ Yn, Cor 
: olando 'L. Rio$§ / 

Attorney for Plaintiffs RLR/rlr 

CC: Council of Record 

 



  

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT 

  

NO. 90-8014 

  
LEAGUE OF UNITED LATIN AMERICAN CITIZENS, ET AL 

Plaintiffs-Appellees vs 

JIM MATTOX, ET AL 

Defendants-Appellants 

  
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS MIDLAND-ODESSA DIVISION 

  MOTION FOR LEAVE TO FILE A BRIEF AMICUS CURIAE 

  TO THE HONORABLE JUDGES OF SAID COURT: 

NOW COMES the Mexican American Legislative Caucus, the Black Legislative Caucus, the Mexican American Bar Association and the Mexican American Legal Defense and Educational Fund, by and through their attorneys, and moves this Court to grant them leave to file a brief in support of appellees and in Support of the Motion shows as follows: 

The Mexican American and Black Legislative Caucuses 
have an interest in the issues and the outcome Of this 
appeal. The applicants are Black and Mexican American Texas 
State Representatives who have been elected by the Black and 
Mexican American Communities in Texas to represent their 
interests. These legislators and their predecessors have, 
for years, attempted to eliminate the at large method of 
electing State District Judges because of the racially 
discriminatory effect of the election system. Applicants 
believe that their unique knowledge of the local political 

 



and legislative processes will aid this court in its deliberations. 

The MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND (MALDEF) is a national civil rights organization dedicated to advocating on behalf of the Mexican American Community. As such it has a Voting Rights Project that has developed extensive expertise in Voting Rights Litigation. Applicant believes that its expertise in this area of the law and its unique position as advocates for the rights of the Mexican American Community will aid this Court in its 
deliberations. 

The MEXICAN AMERICAN BAR ASSOCIATION (MABA) is a 
statewide association of over 1000 Mexican American Lawyers 
many of whom have either been candidates or worked in 
campaigns for District Judgeships. As such and as members of 
the Mexican American Community they have a unique perspective 
on the factual and legal questions raised by this litigation. 

Dated: March 6, 1990 

Respectfully submitted, 

Orlando Garcia Jose Garza 200 Navarro, Suite 101 MEXICAN AMERICAN LEGAL San Antonio, Texas 78205 DEFENSE AND EDUCATION 512-225-3141 FUND (MALDEF) COUNSEL FOR THE MEXICAN 140 East Houston, Suite 300 AMERICAN LEGISLATIVE CAUCUS San Antonio, Texas 78205 
512-224-5476 
COUNSEL FOR MALDEF 

Larry Evans Bertha Alicia Mejia 2323 Caroline President, Houston, Texas 77004 MEXICAN AMERICAN BAR 713-659-5008 ASSOCIATION OF TEXAS (MABA) COUNSEL FOR THE BLACK 1211 Hyde Park LEGISLATIVE CAUCUS Houston, Texas 77006 
713-522-9609 
COUNSEL FOR MABA  



  

nr el 
Orlando Garcia 

ATTORNEY FOR APPLICANTS 

  

CERTIFICATE OF CONFERENCE 

I Orlando Garcia, talked with Rolando L. Rios, Attorney for 
LULAC et. al. and he has no objection to the filing of this 
motion and brief. 

On March 6, 1990 the Texas Attorney Generals office, 
representing the appellants, indicated no objection to the 
filing of this motion and brief. 

oat Led 
Orlando Garcia 

ATTORNEY FOR APPLICANTS 

  

CERTIFICATE OF SERVICE 

This is to certify that on this the 6th day of March 1990 a 
true and correct copy of this motion and brief was provided 
to all council of record in this i 

  ‘Orlando Garcia 

ATTORNEY FOR APPLICANTS 

 



  

   
IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

No. 90-8014 

  

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, ET AL 

Plaintiff-Appellees 

-
 

VS 

JIM MATTOX ET AL 
Defendant-Appellees 

  

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

  

BRIEF OF AMICUS CURIAE: 

MEXICAN AMERICAN LEGISLATIVE CAUCUS 

BLACK LEGISLATIVE CAUCUS 

MEXICAN AMERICAN BAR ASSOCIATION (MABA) 

MEXICAN AMERICAN LEGAL DEFENSE AND 

EDUCATIONAL FUND (MALDEF) 

Orlando Garcia Jose Garza 

200 Navarro Suite 101 Judith Sanders Castro 

San Antonio, Texas 78205 Mexican American Legal 

Member of and Counsel for Defense and Educational Fund 

Mexican American Legislative 140 East Houston, Suite 300 

Caucus San Antonio, Texas 78205 

(512) 224-5476 

Counsel for MALDEF 

Larry Evans Bertha Alicia Mejia 

2323 Caroline 1211 Hyde Park 

Houston, Texas 77004 Houston, Texas 77006 

(713) 659-5008 (713) 522-9609 

Member of and Counsel for President of and Counsel for 

Black Legislative Caucus Mexican American Bar Assn. 

 



STATEMENT REGARDING ORAL ARGUMENT 
  

The parties to this Amicus Brief do not request time for oral 
argument for themselves in this case. 

STATEMENT OF INTERESTED PERSONS 
  

The parties to this Amicus Brief adopt the Statement of 
Interested Persons contained in the Brief of the Original 
Plaintiffs LULAC et al. 

Table of Contents 
  

STATEMENT REGARDING ORAL ARGUMENT 

STATEMENT OF INTERESTED PERSONS 

STATEMENT OF INTERESTED PERSONS 

TABLE OF AUTHORITIES 

STATEMENT OF JURISDICTION 

INTEREST OF AMICUS 

STATEMENT OF THE ISSUES 

STATEMENT OF THE CASE nll Je a Ee UR Pond SG I i 
A. The Factual and Historical Background to the 

Litigation, an overview 
Suits are Filed howe ei i als Be 
The Chief Justice Warns the Legislature 
The Decisions vi 
Consensus is Reached TLR IER CR Se Ne 5 Lh Gl 
The State Defendants Join with Plaintiffs to 
Propose the Consensus Reached in the 
Legislature as a Remedy 

SUMMARY OF THE ARGUMENT 
ARGUMENT oi wile el ele re a vi ae ew ee 

I TEXAS POLICY FAVORS DISTRICT ELECTIONS OF 
OUR STATE JUDGES 

A. Single Member Judicial Districts, A Texas 
Tradition  



    

IT 

111 

IV 

CONCLUSION 

B. 

Cc. 

THE VOTING RIGHTS ACT IS INTENDED TO APPLY TO THE 
PROCESS OF VOTING AND NOTHING INDICATES THAT 
VOTING FOR A POSITION OF JUDGE OUGHT TO BE 
TREATED DIFFERENTLY THAN OTHER ELECTIONS 

A. 

At large Election of Judges from Such Large 
Counties is Bad Public Policy 
Number of Judges Elected 

The Right to Vote For a Judge is Not 
Measured by His or Her Function . 
Currently District Judges Are Elected 
At-Large in the Judicial Districts 
before the Court hein det 
The Statutory Term "Representative" 
Includes Judges and Was Chosen By 
Congress to Increase Rather than 
Limit Electoral Coverage Far GT RR A 
Single Member District Elections Increase 
Potential for Minority Participation in 
the Political Process 

IT IS ENTIRELY APPROPRIATE FOR A FEDERAL COURT 
TO APPROVE DISTRICTS WHICH COMBINE MEXICAN 
AMERICAN AND BLACK MINORITIES 

Minority Districts «ile ve ing 
The Way It Has Been Done in Texas 
1. The Texas House of Representatives 

The Texas State Senate 2 Sie lie 
3. The Texas Congressional Delegation 
4, Texas Cities and School Districts 

THE FACT THAT THERE ARE MORE ANGLO THAN MINORITY 
ATTORNEYS MAY NOT BE USED AS A JUSTIFICATION 
FOR THE SMALL NUMBER OF MINORITY JUDGES 

A. An Accumulation Of Discrimination 
B. The Appellants’ Twenty Year Plan 

Will Take Too Long 

CERTIFICATE OF SERVICE 

ii 

14 

15 

16 

18 

19 

20 

21 

23 
24 
24 
25 
25 
26 
26 

29 
31 

33 

34 

34 

 



    

Table of Authorities 
  Cases 

  

Arquello v. Lubbock I.5.D., CA-5-84-061 {(N.D. 
Tex Lubbock Div. 1985) 

  

Campos v. City of Baytown, 840 F. 2d 1240 
(5th Cir. 1988) le oh 

  

Chisom v. Edwards, 839 F 2d 1056 (5th Cir 1988) 

  

Edgewood v. Kirby, 777 S.W. 2d 392 (Tex. 
S.Ct. 1989) ee 

  

Emerson v. Lamar I.5.D., H-85-3719 (S.D. Tex. 
Hou. Div. 1985) ‘ 

Graves v. Barnes, 343 F. Supp. 704 (W.D. Tex. 
1971) (3-judge) (Graves aff'd in 
relevant part sub nom, White v. Regester, 
412 U.S, 755 (1972) 

  

  

Graves v. Barnes, 408 F. Supp. 1050 (wW.D. 
Tex 1977) (Graves III) 

  

Jones v. City of Lubbock, 722 F. 2d 364 
(5th Cir. 1984) 
  

  

Leal v. San Antonio River Authority, SA-85-CA-2988 
(W.D. Tex. 1985) . 3 

leroy v. City of Houston, 831 F. 2nd 576 
(3th Cir. '1987) 
  

Lipscomb v. Wise, 338 F. 2 Supp. 782 
(N.D. Tex. 1977) 
  

LULAC v City of Midland, MO-84-CA-106 (W.D. Tex. 
Midland-Odessa Div. 1985) 
  

LULAC v. Midland I.S.D., 648 F. Supp. 596 
(W.D. Tex. 1986), 812 F 2d 1494 {5th Cir. 
1987), vacated 818 F. 2d 350 {5th Cir. 
1987), aff'd en banc, 829 F. 2d 546 (1987) 

  

  

  

Martin v. Allain, 658 F. Supp. “1183 
(S.D. Miss. 1987) “i ee 

iii 

23 

23 

passim 

30 

23 

assim 

32 

23,28 

23 

23 

23 

23 

23,27,28 

21 

 



    

Martinez v. Becker, S.A.-73-315 (W.D. Tex. 
San Antonio Div.) 
  

Rangel v. Mattox, B-88-053 (S.D. Tex. Brownsville 
Div. Nov. 3, 1989) on appeal in this court 

  

as 88-6226 

Seamon v. Upham, 536 F. Supp. 931 
(E.D. Tex. 1982) (three-judge) 

  

Southern Christian Leadership Conference v. 
Siegelman, 714 F. Supp. 511 (M.D. Ala, 1989) 
  

  

Thornberg v. Gingles, 478 U.S. 30 (1986)   

  

U.S. v. City of Port Arthur, 517 F. Supp. 987 
{D.D.C. 1981) AR 

Voter Information Project v. Baton Rouge, 
812 FP. 2d 208 (5th Cir. 1980) 
  

Wards Cove Packing v. Atonio, s.4.s, 
109 3.Ct. 2115 (1989) 
  ’ 

Wyche v. Madison Parish Police Jury, 635 F.2d 
1152 (5th Cir. 1981) 
  

Statutes and Other Authorities 
  

42 U.8.C., Sec. 1973 (Sec. 2 Voting Rights Act) 

Davidson and Groffman editors Impact of Voting 
Rights Act of 1965 (working title) forthcoming 

  

  

Davidson and Korbel, At-Large Elections and 
Minority Group Representation, A 
Reexamination of Historical and 
Contempory Evidence, 43 Journal of 
Politics 982 (1981) reprinted in 
Minority Vote Dilution, Chandler 
Davidson, editor at 65 Howard University 
Press (1984) cited in Thornberq v. 
Gingles, 478 U.S. 30, 47 (1986) 

  

iv 

23 

passim 

25,26 

23 

16,22 

23 

20 

30 

25 

assim 

27 

22 

 



    
House Journal, Texas Legislature, Second Called 

Special Session, February 14, 1989 5 

Report of the Subcommittee on the Constitution 
of the Committee of the Judiciary, Ninety- 
Seventh Congress-second session on §S. 53, 
etc Bills to Amend the Voting Rights Act 
of 1965. -S.Rept. 417 at 151, 1982 U.S. 
Code Cong. & Admin. News at 323 17,18 

Statutory History of the United States: Civil Rights 
Bernard Schwartz ed., McGraw Hill Book Co. 
(1970) at 1514-1515 

32 

 



    

STATEMENT OF JURISDICTION   

This is an appeal from a final judgment rendered by the United 
States District Court for the Western District of Texas, Midland 
Odessa Division. Jurisdiction is based on 28 U.S.C. Sec. 1291. 

INTEREST OF AMICUS 
  

The Mexican American Legislative Caucus consists of twenty 
Mexican American and four Anglo members of the Texas State House of 
Representatives. Each is elected from a district with significant 
Hispanic and/or combined Black and Hispanic Populations. The Black 
Legislative Caucus of the Texas Legislature is a coalition of thirteen 
members of the House of Representatives. All are Black and each is 
elected from a district with significant Black and/or combined Black 
and Hispanic populations. Together, these two caucuses comprise a 
quarter of the membership of the Texas House of Representatives. The 
Black and Mexican American Caucuses have long been involved in the 
legislative effort to adopt smaller districts for the election of 

judges. 

The Mexican American Bar Association (MABA) is a state wide 

organization of attorneys who have a particular interest in the 
concerns of the minority Population of the state of Texas. Although 
most of its members are Hispanic, the Mexican American Bar Association 

is open to all attorneys in the state of Texas. 

The Mexican American Legal Defense and Educational Fund (MALDEF) 
is a nationwide Civil Rights Law Firm which is dedicated to the 

vi 

 



    

advancement of the interests of Mexican Americans and other minority 
persons. 

The respective Amici have a two-fold interest in the action. 

First of all, because of the individual role of the Black and Mexican 

American caucus members as legislators, they are concerned with 

insuring that state laws dealing with the election of Judges do not 

have the effect of making it more difficult for Mexican Americans and 
Blacks to participate in the political process and to elect candidates 

of their choice. It is important to them that this Court act swiftly 

to insure that no further at-large elections take place. 

Second, each of the organizations as well as their individual 

members have a long history of advocating and litigating in support 

of single member districts on behalf of clients in both the 

legislative and judicial context. The actions of this Court in this 

case may have a direct impact on the future of that advocacy and 

litigation. 

STATEMENT OF THE ISSUES 
  

Is there any remaining official state policy favoring at-large 

elections for district judges in the large urban counties considered 

by the district court? 

Does Section 2 of the Voting Rights Act of 1965 as amended apply 

to the election of district judges? 

Is there any state policy regarding the combination of Mexican 

American and Black minority groups in order to create a so called 

"combined minority" district? 

vii 

 



    

Can an admitted history of discrimination be used to justify the 

small number of minority judges in the large urban areas considered 

by the district court? 

STATEMENT OF THE CASE 
  

A. An Overview Of The Factu al And Historical Background Of The Litigation. 

We will not restate the overall facts of this case which are 

found in the opinion of the district court and in the Appellees’ 

briefs. However, it is important to note that single member district 

election of judges is not new. In fact, even today, almost 60% of our 

254 counties are located in single member districts electing only one 

judge. An additional 25% of our counties are in judicial districts 

electing two judges. The judicial districts located in the nine 

counties considered by the district court are on the far end of the 

size spectrum electing as many 59 district judges at-large. 

In the mid 1970s, after the dust had settled from the White v. 
  

Regester litigation,'/ members of the Mexican American and Black 
  

legislative caucuses, including the late Representative Matt Garcia 

and now Congressman Craig Washington, began introducing legislation 

to require single member district election of all Texas Judges. In 

  

  

1 Graves v. Barnes, 343 F. Supp. 704, 730-732 (W.D. Tex. 
1971) (3-judge) (Graves I) aff’d in relevant part sub nom. White 
  

v. Regester, 412 U.S. 755 (1972) on remand Graves v. Barnes, 408 
  

F. Supp. 1050, 1052, 1054 n. 8 (W.D. Tex 1977) (Graves III) 

 



    

1975, single member district judicial elections were voted into an 

early draft of the ill-fated Texas Constitution. 

As the years have passed and more district judges have been 

pancaked on to our larger urban counties, the concept of single member 

district judicial elections has gained significant support among 

legislators. This was particularly true after we were advised by the 

Chief Justice of the Texas Supreme Court early last Year that 

maintaining at-large elections was no longer an option. This trend 

has been quickened by the decisions for the Plaintiffs in two suits 

finding that at-large judicial elections violates Section 2 of the 

Voting Rights Act. 

During the second special session, in December of last year, a 

majority of the members of both the House and Senate agreed to support 

a bill creating single member judicial district in each of the 

counties dealt with by the district court. No bill was passed because 

the Governor refused to add the issue to the agenda or call for the 

special session. 

B. Suits are Filed 

In July of 1988, Plaintiffs, LULAC and others filed suit 

attacking the at-large election of district judges in several of the 

state’s urban areas. A parallel piece of litigation against the 

Thirteenth Court of Appeals began in May of the same year. Rangel v. 
  

Mattox ?/ Although the two cases were handled by different sets of 

  

’/ Rangel v. Mattox, B-88-053 (S.D. Tex. Brownsville Div. 
Nov. 3, 1989) on appeal in this court as 88-6226. Although the 

  

2 

 



    

Plaintiff's attorneys and were tried in differed courts, the 
Defendants were represented by the same lawyers and the same expert 

witness was used by the Defendants in both cases, 

In response to the filing of Rangel and LULAC, the Defendant 
state officials moved to continue any action pending the outcome of 
the petition for Certiorari in Chisom v, 

  

Edwards, 839 F 2d 1056 (Sth 
Cir 1988). After Certiorari was denied in Chisom, the state sought 
and was granted several continuances in both cases. As a result, 

neither LULAC or Rangel could be tried before the legislature began 

its 1989 regular session. 

C. The Chief Justice Warns the Legislature 

The Chief Justice of the Texas Supreme Court has long been 

addressing Bar groups urging reform of the Judiciary. With the 1988 

decision of this Court in Chisom, he began warning that at-large 

elections were a problem in Texas and calling on the legislature to 

make appropriate changes before litigation was successful. 

In January of 1989, prior to the trial of either LULAC or Ran el, 

the Legislature came into its regular bi-annual five month session, 

In one of the first actions of the legislature, Chief Justice Tom 

Phillips addressed a joint session of the House and Senate including 

the Governor, the Attorney General, the Secretary of State and all 

  

Rangel case was tried and decided before LULAC, its progress in this Court has been slowed because of a delay in the production of 
the record. 

 



    

other state wide elected officials. ’/ The object of this "State of 
the Judiciary Address" was a warning that if the Legislature did not 
act promptly to abolish at-large district court elections, 

Court would: 

the Federal 

The most important issue facing our state regarding the third branch of government is judicial selection. [I]t is an issue that I believe You must address in this session. [matter omitted] Under ordinary circumstances, this is an issue which you might like to defer to another day. But if I say only one memorable thing today, let it be this: the status quo in Judicial selection is not an option. [emphasis added] 
The United States Court of Appeals for the Fifth Circuit has held that the Voting Rights Act, as amended in 1982, applies to elected judges he same as to all other elected officials. Last November, the Supreme Court declined to hear an appeal from that decision, and we are bound by it. Judicial district lines are illegal if their effect, whether purposeful or not, is to dilute minority voting strength. 

In response to the Fifth Circuit decision, two lawsuits have been brought in federal district court to challenge the Texas method of choosing judges. [matter omitted]. Texas is not facing these challenges alone. Similar lawsuits have been Or are being filed in most states where judges are elected by open ballot; and in those cases which have proceeded to trial or appeal, the plaintiffs have thus far been uniformly successful. [matter omitted] 

Texans must be sensitive to why these lawsuits are being brought, and why they are succeeding elsewhere. People of all racial and ethnic backgrounds must feel that they have a stake in the judicial system, and that all qualified persons have equal opportunity to serve in the judiciary. If our current election system impedes this, it should be changed. You should examine the ways in which 
our election system might be structured to increase the 
opportunity for minority judicial service. [matter 
omitted] 

  

’/ The Chief Justice is a named Defendant as is the Governor, 
the Attorney General and the Secretary of State. 

4 

 



    

It is within your power to let the people decide the momentous issue of judicial selection. [matter omitted] A federal court, on the other hand, may order changes in our system even those that contradict our state constitution, by judicial decree. If Texans are to be heard on this issue before the 1990 elections, it is imperative that you submit a proposed constitutional amendment this year. It would be a tragedy for this state if an issue so fundamental to our right of self-government were decided by default in the federal courts. 
House Journal, Texas Legislature, Second Called Special Session, February 14, 1989 at 280-287 

After being told that "status quo is not an option" and that it 

was likely that Texas was going to lose the two lawsuits, both the 

House and Senate held a series of hearings to consider various forms 

of remedies. While this process was going on, the Rangel (appellate) 

case came to trial in late March. LULAC was initially set for trial 

shortly thereafter but was postponed at the request of the state which 

continued to claim to be unprepared. It was finally tried the week 

of September 18, 1989. 

The regular session of the legislature ended in May with Rangel 

tried but not yet decided and LULAC about to be tried. With the 

litigation in progress, the legislature was unable to come up with a 

consensus and adopted an attitude of wait and see what the federal 

courts would do. 

D. The Decisions 

A Special Session of the Legislature was called to meet in June 

to consider the thorny Workman’s Compensation issue which had also not 

been concluded during the regular session. That thirty day session 

expired without the passage of a bill on Workmen's Compensation. On 

 



    

July 22, 1989, shortly after the first special session concluded, the 
Rangel (appellate) case was decided for the Plaintiffs and the state 
was allowed until the December 2, 1989 */ to Propose a remedy. 

In late August, the Governor issued a call for a second Special 
Session to run from November 17 through December 15, 19809, Although 
the State was under an Order in the Rangel case to propose a remedy, 
the Governor limited the call of the Special Session to Workman's 
Compensation. Under our laws, the Legislature can act upon only 
those issues specifically included by the Governor in his call or 
which are later added to the call by his proclamations. LULAC came 

  

to trial in the end of September with a decision for the Plaintiffs 
on November 8, 1989. As in Rangel, the district court deferred 

considering any remedy and allowed the state until January 2, 1990 to 

propose one. Since the special session was set to conclude on 

December 15, this afforded the state an additional three weeks to have 

another session if necessary. 

E. Consensus is Reached 

The Governor indicated that he would add judicial apportionment 

to the call only if a consensus was reached. Accordingly, the members 

of the Black and Mexican American Caucuses worked hard to line up 

support. Several bills, including Senate Bill 42 and its House 

version HB 113 were introduced to deal with the district court issue. 

Two days of hearings were held in the Senate and three days of 

  

'/ This is the date on which candidate filing begins for our 1990 election year. 

 



    

hearings followed in the House. After full committee consideration, 
HB 113 passed out of the House Redistricting Committee on a 6-1 vote 

Thereafter, 
  

a majority of both the House (76 of 150) and Senate 

(16 of 31) signed on to support the bill. ¢/ Copies of documents 
indicating the legislative consensus are attached as Appendix A. In 
spite of the consensus reached in the legislature, the Governor 
refused to add the issue to the call. Instead, he sought and received 
an extra-ordinary in-chambers conference with Judge Bunton in an 
attempt to convince the district court that he should allow the state 

to wait until the 1991 regular session to deal with the remedy. State 

Defendant-Appellant’s Br. at 4. At that meeting on December 11, 1989, 

the Governor dismissed the legislative consensus and stated that he 

would not open the session in spite of his previous commitment to do 

$0. On the next morning the Special Session adjourned several days 

early because the Workman’s Compensation Bill had been passed and 

there was nothing else on the call and available for final legislative 

action. 

  

°/ Since the Governor refused to open the call, no vote was taken by the Senate Committee considering SB 42. 

°/ The bills provided that district judges would be elected from existing election geography (state legislative districts in Harris, Dallas, Bexar and Travis and or Justice of the Peace districts in the remaining counties). It was important to use existing defined election districts to minimize the logistical problems in conducting the 1990 elections 

7 

3 

 



    

F. The State Defendants Join with Plaintiffs to Propose the Consensus Reached in the Legislature as a Remedy. 

In the district court’s order finding that at-large judicial 

elections violate Section 2 of the Voting Rights Act, Judge Bunton 

urged the state to propose a remedy. Although the Second Special 

Session concluded with out adopting an election plan, it was clear 

that there was a consensus on what that plan should be. Accordingly, 

on December 21, 1989, the Attorney General and the Plaintiffs filed 

a motion urging that the district court adopt the substance of the 

legislative consensus. 

on January 2, 1990, the district court adopted the proposal 

endorsing the use of existing election geography to define the 

districts which was the foundation of the consensus. However, the 

court changed the date of the elections from the regular March/April 

primary and run-off to May/June and directed that the elections be 

held without party preference. Since these changes differed from the 

consensus reached in the legislature and were an unnecessary 

modification of state law, the Attorney General moved for a 

reconsideration and that the original proposal be adopted. The 

district court changed the election date to November but continued the 

non-partisan nature of the elections. On January 11, 1990, this Court 

granted an emergency stay of the district court’s order. On the 

application of the Appellants, an expedited briefing schedule was 

ordered. 

 



  

IT) 

ply 

  

SUMMARY OF THE ARGUMENT 
  

The history of single member district litigation in Texas 
demonstrates a consistent pattern. With only two exceptions, 
Plaintiffs have always been able to demonstrate that at-large 
elections makes it more difficult for Mexican Americans and Blacks to 
participate in the political process and to elect candidates of their 
choice. Such successful litigation has taken place in each of the 
counties in question. 

Most of the counties in Texas currently elect judges from single 
member type districts. The counties considered here range in size up 
to 2.5 million persons electing as many as 59 district judges at- 
large. In context, this means that one-third of the nations’s 

governors are elected from smaller constituencies than a district 

judge in Dallas or Harris County. 

Election of judges was specifically considered by Congress 

passing Section 2 of the Voting Rights Act. It is the act of election 

which is covered by the Voting Rights Act and the function of the 

official to be elected is not a consideration. Had Congress intended 

to exempt judicial elections, there would be something in the 

legislative history that the Appellants could point to. There is not 

even an hint of Congressional intent to exclude judicial elections 

when Section 2 was amended in 1982, 

In creating single member districts, the state has an extensive 

history of combining Black and Hispanic populations to create 

"minority districts." All such "combined minority districts," have 

 



    
been precleared by the Department of Justice under Section 5 of the 

Voting Rights Act. 

Appellants’ arguments that there are more "qualified" Anglo 

attorneys than "qualified" minority attorneys is a smoke screen. The 

fact is that there are a large number of "qualified" minority lawyers 

in each of the counties in question. The focus of Section 2. 0f the 

Voting Rights act is on the question of whether minority voters are 

able to elect the candidate of their choice. 

ARGUMENT 

I 

TEXAS POLICY FAVORS 
DISTRICT ELECTIONS OF 

OUR STATE JUDGES 

  

  

  

As previously noted, after suit was filed in this case, the Chief 

Justice of the Texas Supreme Court came before the Legislature and did 

not mince words. He told us that our at-large system was so flawed 

that maintaining "the status quo in judicial selection is not an 

option." More than a year has now passed since Chief Justice Phillips 

named the problem; identified the pending litigation; predicted that 

the plaintiffs were going to win; warned what would happen if no 

action was taken and pleaded with the legislature to deal with the 

issue. There is still no action by the legislature in spite of the 

fact that two separate federal district courts have found violations 

of Section 2. 

10 

 



    

A. Single Member Judicial Districts, A Texas Tradition 

Each of the Appellants’ Briefs as well as their Amicus take the 
position that somehow, single member election of Judges in Texas is 
a new and revolutionary thing. See e.g. an "unprecedented 
reconstruction of Texas judicial system..." Appellant Entz at 10; 
"assertions of judicial imperialism which are breathtaking in their 
audacity." Amicus Washington Legal Foundation Br. at 2, 

In fact, single member election of judges is not a new. At one 
time virtually all of our district courts were elected by single 
member district. But, as the larger urban areas continued to grow, 

the legislature pancaked more and more judicial districts in those 

counties. Now we have reached the point where Harris County elects 

59 district judges, Dallas County elects 36 district judges and so on. 

The district court elections in the non-urban counties remain 

predominately from single member districts comprising one or more 

counties. That is, voters in 140 of our 254 Counties elect only one 

judge and those in another 59 counties vote for only 2. 

Nor is single member district judicial election in the urban 

areas a revolutionary concept. As noted in the statement of the case, 

a majority of both the House and the Senate indicated that if the 

Governor would add the issue to the Call, they would vote for a bill 

which would break Dallas, Bexar, Harris and Tarrant counties down into 

judicial districts using the same geography as our current state 

representative districts (according to the most recent census 

projections, an ideal state representative district would be in the 

11 

 



   

  

range of 110,000 to 115,000). / For Travis, Jefferson, Lubbock, 
Midland, and Ector Counties, the single member districts would rely 

on existing County Commissioner or Justice of the Peace districts, 
While we did not get a chance to pass the bill because the 

Governor refused to add it to the agenda. This sort of legislative 
resolve has been presented to federal courts by the former Attorney 
General Hill as strong evidence of legislative intent. Graves v, 

  

Barnes, 408 F. Supp. 1050, 1052, 1054 pn. 8B (W.D, 

  

Tex 1977) (Graves 
111). Both Attorney General Mattox and former Attorney General Hill 
interpreted this in the same way that we do. 

The Appellants’ briefs also infer that 110,000 to 115,000 persons 
is an inordinately small number of persons for a judicial district. 

The fact is, however, that 121 of our district courts are now at or 

below that population. iE Twenty-nine state district judges are 

elected by constituencies of less than 30,000 persons. 

Under the consensus arrangement, Judges would continue to be 

  

Y Existing electoral geography was chosen for an interim plan because the 1990 election was close at hand and different districts would have required redrawing of election precincts. State Representative Districts work well in the Four largest counties because each contains legislative districts which do not Cut county lines. In the other counties, Commissioner precincts or Justice of the Peace Districts were used because state legislative districts did cut those county lines. 

°/ The populations of the state’s judicial districts comes from a comparison of the information in Defendants’ Exhibit D-3 with the 1980 Census of Population. 

12 

 



   

  

nominated in our primary elections with the regular general election 

in November. ¢%/ If adopted such bills would have mooted this 

judicial consideration. 

Although the Governor did call a third special session to deal 

with the issue, it is being held during the primary and run-off 

elections. In addition, the special session includes the problem of 

public school finance reform. %/ As a result of the politically 

sensitive timing of the session and the combination with the issue of 

school finance, it may be no longer possible to reach consensus. 

This is not a complaint about the political actions of the 

Governor to frustrate our attempts to deal with this problem in the 

legislature. His actions are part of the rough and tumble of 

legislative politics. He did not agree with the majority of the 

legislature and exercised his prerogative to frustrate that majority. 

However, we believe that an official policy favoring the election of 

judges, at-large from the mega-districts considered by the district 

court has been seriously erroded if not abandoned. To the extent that 

there is any official policy concerning judicial elections in these 

counties at this point, we believe it favors single member districts. 

  

’/ ..The only regularly scheduled state wide contests in Texas are the primary, run-off and general elections. These are traditionally the highest turn-out contests. Cities, school districts and special purpose districts hold elections on various other election dates during the year and such contests are marked by a substantially lower turn-out. 

/ There is an indication that the Governor is about to open the session also to horse racing taxation; ethics reform; the creation of a special taxation district in downtown Houston and a myriad of other issues. 

13 

 



    

B. At large Election Of Jud ges From Such Large Counties Is Bad Public Policy 

The nine judicial districts considered by the district court 

include several of the largest urban areas in the state ranging in 

population from almost 83,000 in Midland County to over 2.5 million 

in Harris county. This involves 172 of the 375 district judges in the 

state: 

Dist. 

County Population Judges 
Harris 2,409,544 59 
Dallas 1,656,549 37 

  

Bexar 988,800 19 
Tarrant 860,880 23 
Travis 419,335 13 
Jefferson 250,938 8 
Lubbock 211,651 6 
Ector 115,374 4 
Midland 82,636 3 

14 

 



    

The real size of these at-large election districts comes into 

to the 1980 Census: 

Alaska 

Wyoming 
Vermont 

Delaware 

Dist. “of Col. 

North Dakota 

South Dakota 

Montana 

Idaho 

Nevada 

New Hampshire 

Rhode Island 

Hawaii 

Maine 

New Mexico 

Utah 

Nebraska 

Kansas 

Mississippi 
Oregon 

Arizona 

Colorado 

Iowa 

Oklahoma 

401,851 

469,557 
511,456 
584,338 
638,432 
652,717 
690, 768 
786, 690 
944,127 
800, 508 

920,610 

947,154 

964,961 

1,125,043 
1,303,302 
1,461,037 
1,569,825 

2,364,236 

2,520,770 

2,633,156 

2,716,598 

2:899,735 
2,913,809 

3,025,487 

focus when compared with the populations of entire states according 

Travis County 419,335 

Tarrant County 860,880 

Bexar County 988,800 

Dallas County 1,656,549 

Harris 2,409,544 

Judicial Selection Is Lost In A Sea Of At-Large Elections. 

An individual voter in Harris County, for example, votes for and 

15 

elects 59 district Judges, 9 members of the Texas Supreme Court, 9 

members of the Texas Court of Criminal Appeals; 18 members of the 

 



    
Courts of Appeal; 22 County Courts Judges and 15 Justices of the 
Peace. Fully 132 elections for Judge show up on the ballot, hy 

While Harris County is the largest county in the state and the 
extreme case, all of the counties in this litigation elect a total of 
30 or more judges (Justice of the Peace through Supreme Court). With 
the exception of JP, each is elected at-large. The well known 
tendency of at-large elections to dilute minority voting strength 

  

aside Thornburg v. Gingles, 478 U.S. 30, 47-48 (1986), mega-election 

districts electing dozens upon dozens of judges at-large are just bad 
government. Even the most contentious voter has no chance of knowing 
who all of these judges are. Such elections become whimsical farces 
of comic opera proportion. 

II 

THE VOTING RIGHTS ACT IS INTENDED 
TO APPLY TO THE PROCESS OF VOTING 

AND NOTHING INDICATES THAT VOTING FOR 
A POSITION OF JUDGE OUGHT TO_BE TREATED 

DIFFERENTLY THAN OTHER ELECTIONS 

    

  

  

  

A review of the legislative history of Section 2 makes it clear 

that, contrary to the assertions of the Appellants, the application 

of Section 2 of the Voting Rights Act to Judicial elections was 

  

/ We have examined all of the reported cases dealing with st-large elections and it appears clear that Harris County, electing 59 district judges is the largest "at-large" election district ever subjected to litigation. Dallas, Bexar and Tarrant Counties are certainly the next three largest such districts ever litigated. 

16 

 



  

. viet 

  

carefully considered by the Senate Sub-Committee on the Constitution 
when it held hearings on the question in 1982. 

Every political subdivision in the United States would be liable to have its ele 
evaluated by the proposed 
important to emphasize at 
of Section 2, the term political subdivisio all governmental units, including cit 
school boards, judicial districts, 
well as state legislatures. All practices and procedures in use on the effective date of the change in the law would be subject to the new test.... [emphasis in the original] Report of the Subcommittee on the Constitution of the Committee of the Judiciary, Ninety-Seventh Congress-second session on §. 53, etc Bills to Amend the Voting Rights Act of 1965. S.Rept. 417 at. 151, 1982 u.s. Code Cong. & Admin. News at 323. !%/ 

Nn encompasses 
Y and county councils, 
utility districts, as 

The specific statement of coverage is supported by the myriad of 
references to judges and judicial elections contained in the 
transcripts of the hearings held before both the Senate and House. 

"Section 2 [of the Voting Rights Act] does apply to the election of 

state court judges." Chisom v. Edwards, 839 F. Supp 1056, 1058   This 

is consistent with the other courts which have decided the issue. 

  

Oren Hatch, the Chairman of the Subcommittee. 839 F. While the = report appears in U.S. Code 
Administrative News after a statement by Senator Hatch, contained in a Report to the Senate prepared b 
after holding nine days of hearings and amassi 
pages of testimony. A review of the Commi 
Hearings indicates that the lion’ 
directly with the amendment of Section 2. 
before Subcommittee of the Constitution, 
Judiciary, United States Senate, 
Session (J-97-92). 

12° In Chison, this Court attributes this statement to Senator 
2d at 1002. 

Congressional and 

it is 
Y the subcommittee 
ng more than 2,000 
ttee print of the 

S share of the testimony dealt 
See generally Hearings 

Committee of the 
Ninety-Seventh Congress, Second 

17 

 



  

[] 

  

A. The Right To Vote For A Judge Is Not Measured By His Or Her Function. 

Each of the Appellants’ Briefs contain the argument that this 
Court could not have intended that trial courts were covered by 
Section 2 of the Voting Rights Act when Chisom was decided. State Br. 
at 17-18; Entz Br. at 16; Wood Br. at 22; Chapman Br. at 8-11: and 
Bayoud Br. at 9. The nature of judging is argued to be different at 
a trial and an appellate level. One is collegial and the other not. 
Whatever the validity of that distinction, it misses the mark. The 

Voting Rights Act is exactly what it says, an act dealing with voting. 

What is important is not the function of the elected official but 
the fact that he or she is elected. Once having undertaken to hold 
elections for Judges, those elections are covered by Section 2 of the 

Voting Rights Act. There is absolutely no basis in any of the 
legislative history cited by any of the Appellants’ Briefs to indicate 
that Congress intended to pick and choose among the types of judicial 

elections to be covered. On the contrary Congress specifically 

provided that Section 2: 

prohibits practices which... 
any phase of the electoral 
members. 

S. Rept. 417 at 30, U.S.Code Cong. & Admin.News 1982, at 207. 

result in the equal access to 
process for minority group 

In another sense, it would be bad public policy to "exempt" the 
election of "non-collegial judges" from coverage under the Voting 

Rights Act. Well over half of the elected officials on the primary 

ballot in our urban areas are so called "non-collegial judges." It 

is impossible to think that Congress, so intent on opening the process 

18 

 



    

up, would have designed a System which put more than half of the 
elected officials beyond the aegis of Section 2 of the Voting Rights 
Act. Stated another way, if that was the intent of Congress, some 
hint of it should appear in the extensive legislative history. None 
does. 

B. Currently District Judges Are Elected At-Large 

The arguments by three of the Appellants that we already elect 
our judges by single member district amounts to sophistry of unique 

proportion. State Br. at 18-20; Entz Br. at 18-19 and Wood Br. at 24. 

For example, Appellants argue that in Harris County the citizens elect 

59 district judges from 59 single member districts. They seem to view 

each of these 59 judicial districts like very tall stack of pancakes 

each covering the entire geographic area of Harris County. No matter 

how they picture it, the argument fails the "duck test." This is just 

another way to say that 59 judges are elected at-large, When the 

members of the legislature were elected county wide Prior to the 

decision in White v. Reqgester (supra), they were elected in exactly   

the same way that these judges are elected. At-large elections are 

at-large elections. 

C. The Statutory Term "Representative" Includes Judges And Was Chosen By Congress To Increase Rather Than Limit The Coverage Of Section 2, 

Next, the appellants each argue that Section 2 could not have 

been intended to include judicial elections because a judge cannot be 

said to be a "representative" within the meaning of Section 2. State 

19 

 



    

‘Br. at 15; Entz Br. at 16-18; Wood Br. at 22-23; and Bayoud Br. at 20- 

22. In its own way, this may be the most tortured argument of all. 

The statute provides in relevant part: 

42 U.5.C. Sec. 1973 
(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any state or political subdivision in a manner which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color or in contravention of the guarantees set forth in section 1973b(f) (2)of this title, as provided in subsection (b) of this section. 

(b) A violation of subsection (a) of this section is established if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subdivision (a) 
of this section in that its members have less opportunity 
to participate in the political process and to elect 
representatives of their choice. 

In a vain attempt to avoid the expansiveness of the coverage 

intended by Congress in passing Section 2, Appellants argue that the 

use of the term representative evidences the intent of Congress to 

ignore judicial elections. Judges, Appellants claim, are not 

representatives. Such a distinction has been dismissed by this 

Circuit as having no effect on "plaintiffs’ claims of racial 

discrimination [rendering such claims] no less important and no less 

deserving of constitutional protection." Voter Information Project Vv.   

  

Baton Rouge, 612 F. 2d 208, 212 (53th Cir. 1980). 

Rather than a word of limitation, this Court found that the 

legislative history of the act indicates that the term 

"representative" was put into the act to broaden the coverage. Chisom 

20 

 



    
(supra) 839 F. 2d at 1062. As noted earlier, the claims by the 

Appellants that there is absolutely no mention of judicial elections 

in the legislative history is simply not the facts. Judicial 

elections were specifically mentioned by the report of the Senate Sub- 

committee which heard the testimony on Section 2. In addition, as 

this Court also notes, references to judicial elections are all over 

the debates and the testimony. id. 1062-1063. 

[Tlhrough out the Senate Report on the 1982 amendments to 
Section 2, Congress uses the term "officials," 
"candidates," and "representatives" interchangeably when 
explaining the meaning and purpose of the act. 

id 839 F 2d 1063. 

This Court has held that the term "Representative" includes an 

elected judge: 

The word ’representative’ in Section 2 is not restricted 
to legislative representatives but denotes anyone selected 
or chosen by popular election from among a field of 
candidates to fill an office, including judges. [emphasis 
added] 

Chisom v. Edwards, (supra) 839 F. 2d at 1063. Accord see: Southern 
Christian Leadership Conference v. Siegelman, 714 F. Supp. 511, 517 
(M.D. Ala. 1989) and Martin v. Allain, 658 F. Supp.  1183,:1200 (5.D. 
Miss. 1987). 

  

  

  

  

D. Single Member District Elections Increase Potential For Minority 
Participation In The Political Process. 

The Appellants Chapman, et al. make the argument that at-large 

judicial elections are really a benefit to minority voters. Somehow, 

Chapman argues that this point has been overlooked by the lawyers for 

LULAC, the Houston Lawyers Association, the NAACP Legal Defense and 

Educational Fund (LDF) and the other Plaintiff groups in this case. 

Chapman Br. at 7, 9-14. The extensive experience of the last two 

21 

 



    

decades here has been exactly to the contrary. Single member 

districts directly result in increase in minority elected officials. 

See Davidson and Korbel, At-Large Elections and Minority Group 

Representation, A Reexamination of Historical and Contempory Evidence, 

43 Journal of Politics 982 (1981) reprinted in Minority Vote Dilution, 

Chandler Davidson, editor Howard University Press (1984) cited in 

  

Thorenburg v. Gingles, 478 U.S. 30, 47 (1986). 

The members of the Mexican American and Black Legislative 

Caucuses have a significant amount of experience in this area. Most 

of our elections are directly the result of single member district 

litigation exactly like that before this Court. At the time that at- 

large legislative districts were stricken in the Graves v. 
  

Barnes/White v. Regester cases, there were just two Blacks and four   

Mexican Americans in the Texas Legislature. Immediately after the 

adoption of single member districts there were twelve Blacks and 

sixteen Mexican Americans. The simple change from at-large to single 

member districts resulted in increases of four-fold for Mexican 

Americans and more than Six-fold for Blacks. 

With the advent of single member state legislative districts in 

Harris County, minority representation went from one Black and one 

Mexican American to five Blacks and two Mexican Americans. In Dallas 

County minority representation increased from one Black to three 

Blacks. In Bexar County, minority representation after single member 

legislative districts mushroomed from a single Mexican American to 

five Mexican Americans and one Black. In Tarrant, Jefferson and 

22 

 



   

  

Lubbock Counties where no minority had ever been elected to the Texas 
House, single member districts produced two each from Tarrant and 

Jefferson and one for Lubbock. 

Since 1976, more than one hundred cities and school districts in 
Texas have been the subjects of litigation leading to similar 
increases in minority elected officials. These include most of the 

central cities and many of the school districts '’/ located in the 
counties in this litigation. 

IiI 

IT IS ENTIRELY APPROPRIATE FOR A FEDERAL 
COURT TO APPROVE DISTRICTS WHICH COMBINE 
MEXICAN AMERICAN AND BLACK MINORITIES 
  

The argument has been made by the State that it is somehow 
incorrect and possibly plowing new ground to combine Mexican Americans 
and Blacks together to create "combined minority districts" in Lubbock 

  

?/ See for example Lipscomb v. Wise, 338 F. 2 Supp. 782 (N.D. Tex. 1977) (City of Dallas); Leroy v. City of Houston, 831 F. 2d 576 (5th Cir. 1987); Campos v. City of Baytown, 840 F. 2d 1240 (5th Cir. 1988); Emerson v. Lamar I.S.D., H-85-3719 (S.D. Tex. Hou Div. 1985); Jones v. City of lubbock, 727 F. 2d 364 (5th Cir. 1984); Arquello v. Lubbock 1.5.D., CA-5-84-061 (N.D. Tex Lubbock Div. 1985); LULAC v. Midland I.S.D., 648 F. Supp. 596 (W.D. Tex. 1986) aff’d en _banc 829 F. 2d 546 (5th Cir 1987); LULAC v City of Midland, MO-84-CA-106 (W.D. Tex. Midland-Odessa Div, 1985); u.Ss, Ye.Gilty of Port Arthuy, 517 F. Supp. 987 (D.D.C. 1981); v. Becker, S.A.-73-315 (W.D. Tex. San Antonio Div.) (negotiated settlement of San Antonio City Council litigation); Leal v. San Antonio River Authority, SA-85-CA-2988 (W.D. Tex. 1986). Some of the jurisdictions such as the Houston, Dallas, San Antonio and Fort Worth school districts voluntarily adopted single member districts in face of certain judicial challenge. Dallas, Bexar, Jefferson, Lubbock and Travis counties were all among the county wide at-large legislative districts considered in White v. Regester, (supra). 

  

  

  

  

  

  

  

  

  

Martinez 
  

  

  

  

  

23 

 



  

and Midland Counties. State Br. at 38-40. Nothing could be farther 

from the truth. 

A. Minority Districts 

It is a generally regarded rule of thumb in reapportionment that 

it usually takes somewhat more than a 50% minority population to 

insure that the Black or Mexican Americans have an opportunity to 

elect candidates of their choice. "/ Indeed: 

A district containing a minority population of sixty- five percent or greater is generally recognized by the Justice Department as a district capable of electing a minority representative. [citations omitted] 
Seamon v. Upham, 536 F. Supp. 931, 948 (E.D. Tex. 1982)   

B. The Way It Has Been Done In Texas 

Since 1972, when the first single member districts in the state 

were drawn by the three judge district court in White v. Regester 
  

(supra), combined "minority districts" have been commonplace. '/ The 

courts have specifically recognized that it is appropriate to combine 

  

“. The reason for this is that the minority population will almost always have a much lower average age. Stated otherwise, a significantly higher percentage of the minority population is under the minimum voting age. See Wyche v. Madison Parish Police Jury, 
635 F. 2d 1152, 1162 (5th Cir. 1981). The participation rate of minority residents is also adversely affected by a history of 
exclusionary devices and other discriminatory practices. See 
generally Graves v. Barnes, 343 F. Supp. 704, 730-732 (W.D. Tex. 
1971) (3-judge) (Graves I) aff’d in relevant part sub nom. White 
v..Regegster, 412 U.S. 755 (1972). 

  

  

  

*/ The three-judge district court adopted a combined or 
coalition minority district on the East Side of San Antonio in 
which Blacks were in the plurality. Together with the Mexican 
Americans living there, it was a minority district. This district 
initially elected G.J. Sutton and later on his death his wife held 
the position for several terms. Black caucus member Representative 
Conley currently holds that office. 

24 

 



  

Mexican Americans and Blacks as "minorities." For example, in Seamon 

v. Upham, (supra) the three-judge district court was called upon to 
  

adopt an interim plan of apportionment for the election of the members 

of congress from Texas. In doing so, the court, per Judge Johnson, 

drew the districts on the basis of "minority population" (Mexican 

Americans and Blacks). Seamon, 536 F. Supp. at 955 see esp. n.-36. 

Sometimes a Black and a Mexican American will oppose each other 

in these combined minority districts. Rather than a failure of 

combined minority districts, this is a testament to the success of 

single member district elections. It is the healthy functioning of 

democracy and demonstrates how persons who were formerly fenced out 

of the process now see that they can participate in it. 

1. The Texas House Of Representatives 

Five of the Mexican American members of the Texas House as well 

as seven of the Black members of that body are elected from coalition 

"minority" districts. These include Representatives Cavazos and Evans 

who are the Chairmen of the Mexican American and Black caucuses 

respectively. 

House 

Dist. Name Blk. % Hisp.% Minority$% 34 Hugo Berlanga (MA) 8.52 63.61 71.90 35 Eddie Cavazos (MA) 3.58 62.04 65.60 50 W. Delco (B) 32.98 13.73 46.36 51 Lena Guerrero (MA) 7.67 39.12 53.37 95 G. Thompson (B) 65.44 5.47 70.57 111 J. Larry (B) 65.73 10.10 75.50 120 K Conley (B) 38.01 27.27 64.74 131 Ron Wilson (B) 61.03 6.68 67.29 143 Al Luna (MA) 13.58 58.58 71.03 146 Al Edwards (B) 57.59 11.92 69.08 147 Larry Evans (B) 58.62 19.37 72.23 148 Roman Martinez (MA) 9.33 63.14 72.23 

25 

 



    
2. The State Senate 

The only two Black Senators and two of the five Mexican American 

Senators are elected from combined "minority districts." 

Senate 

Dist. Name Blk. % Hisp.$% Minority $% 13 Rodney Ellis (B) 53.08 10.88 63.52 
19 Frank Tejeda (MA) 11.38 45.67 56.20 
23 Eddie B. Johnson (B) 49,92 15.72 $5.37 
20 Carlos Truan (MA) 3.23 55.06 58.29 

3. The Texas U.S. Congressional Delegation 

Four of the five minority Congressmen from Texas represent 

combined "minority districts." Significantly, this included the late 

Congressman Leland, who was Chairman of the Black Congressional 

Caucus. His district in Houston (18) is almost equally divided 

between Mexican Americans and Blacks. 

Cong. 
Dist. Name Blk.% Hisp.% Minority$ 

18 C. Washington (B) !¢/ 40.81 31.21 71.67 
20 H. Gonzalez (MA) 8.77 61.73 70.34 
23 A. Bustamante (MA) 4.11 56.22 60.23 
27 8S. Ortiz (MA) 2.74 61.50 64.15 

See Seamon v. Upham, 536 F. Supp. at 954-955 n. 36.   

4. Texas Cities And School Districts 

We have also reviewed the many cities and school districts which 

have adopted single member districts in Texas. As in the legislative 

and congressional context, there are dozens of combined "minority 

districts" such as the ones which were adopted by the district court 

  

16 
This district was formerly held by the late Mickey Leland 

who was Chairman of the Congressional Black Caucus and former 
member of the Texas House of Representatives. 

26 

 



      
in this matter. Sometimes the districts were adopted in the context 

of litigation and sometimes they were the result of more voluntary 

action. However, in each situation, the districts have been 

precleared under Section 5 of the Voting Rights Act by the Department 

of Justice. YY 

This Court recently approved a plan of apportionment adopted by 

Judge Bunton for the Midland I.S.D. which had exactly the sort of 

combined minority district which was created here. LULAC v. Midland 
  

I.5.D., 648 F. Supp. 596 (W.D. Tex. 1986), 812 F 2d 1494 (5th Cir. 

1987), vacated 818 F. 2d 350 (5th Cir. 1987), aff'd en banc, 829 F.   

2d 546 (1987). The combined minority districts in the Midland I.S.D. 

situation are: 

    

  

  

Population Combined Race of 
Bist. Total Blk. % Hisp. % % Incumbent 

1 11,586 4,902 42.3 2,731 23.6 65.9 Black 
2 11,448 1,696 14.8 6,163 53.8 68.6 Hispanic 

648 F. Supp 596, 611. 

As Judge Bunton noted in that case: 

The court recognizes that Blacks and Mexican Americans 
are racially and culturally distinct. However, it is also 
clear that the two groups have political goals that are 
inseparable. 

648 F. Supp. at 606. 

  

17, The data on the cities and school districts referred to 
on the next few pages of this brief is taken from a survey which 
is in the files of the counsel for the Mexican American Legislative 
Caucus. See generally Davidson and Groffman editors Impact of 
Voting Rights of 1965 (working title) relevant portions of which 

  

  

are in the files of the counsel for the Amici. 

27 

 



    

The City of Midland has four single member districts which are 

the result of settlement of litigation. LULAC v City of Midland, MO-   

84-CA-106 (W.D. Tex. Midland-Odessa Div. 1985). District 2 in the 

City of Midland is a Mexican American "plurality district" 1!%/ very 
much like the Black plurality district adopted by the district court 

here. As the following chart indicates, the "minorities" cooperate to 

elect a Mexican-American. 

  

  

  

Population Combined Race of Dist. Total Blk. % Hisp., 3 % Incumbent 1 17,035 126 0.7 407 2.4 3.1 Anglo 2 19,027 6,431 33.8 8,454 44.4 78.2 Mex .Am. 3 19,953 252 1.3 1,943 8.7 11.0 Anglo 4 16,204 148 0.9 666 4.1 5.0 Anglo Total 172,219 6,957 9.6 11,470 15.9 25.5 

The City of Lubbock, has six districts which are the result of 

  

litigation. Jones v. City of Lubbock, 722 F. 2d 364 (5th Cir. 1984). 

This court approved plan of apportionment has both a Black (Dist. 2) 

and a Mexican-American plurality district (Dist. 1). A Mexican 

  

18. We use the term "plurality district" when blacks or Mexican Americans considered alone comprise fewer than 50% of the district but Mexican American and black minorities combine to represent more than 50% of the district. For example, 
of the City of Midland, Mexican Americans comprise less than half of the population of District 2 (44.4%) but together with the black minority residents of the district’ (33.8%), 
ethnic minorities represent a Population majority (78.2%) of the district. 

in the case 

the racial and 

28 

 



  

| 

  

American is elected to the Mexican American plurality district and a 
Black to the Black plurality district: 

  

  

  

  

Population 
Combined Race of Dist, Total Blk, % Hisp. % % Incumbent - 3 30,419 2,197 7.2 14,750 48.5 55.7 Mex .Am. 2 27,528 9,948 36.1 10,083 36.6 72.7 Black 3 30,580 656 2.1 2,434 8.0 10.1 Anglo 4 27,260 339 1.2 781 2.9 4.1 Anglo 5 28,568 441 1.5 1,472 542 6.7 Anglo 6 29,443 628 aol 1,555 5.3 7.4 Anglo Total 173,798 14,201 8.2 31,075 17.9 26.1 

As with the city, the Lubbock I.5.D. has two combined "plurality 

minority" districts which elect minority candidates. These also were 
adopted in the context of litigation. Arquello v. Lubbock 1.5.p., CA-   

5-84-061 (N.D. Tex Lubbock Div. 1985): 

  

  

Population Combined Race of Dist, Total Blk. 3 Hisp. % % Incumbent 1 35,141 2,339 6.7 15,224 43.3 50.0 Mex .Am,. 2 32,233 10,297 31.9 10,462 32.4 64.3 Black 3 35,686 458 1.3 1,134 3.2 4.5 Anglo 4 32,833 436 1.3 2,047 6.2 7.5 Anglo 5 33,336 756 2.3 1,856 5.6 7.9 Anglo Total 169,279 14,286 8.4 30,743 18.2 26.6 

IV 

THE FACT THAT THERE ARE MORE ANGLO THAN 
MINORITY ATTORNEYS MAY NOT BE USED AS 

A JUSTIFICATION FOR THE SMALL NUMBER OF 
MINORITY JUDGES 

  

  

  

Minority law students were initially excluded from the state’s 

law schools and even today are admitted in numbers far below what they 

represent in the overall population. There may be any number of 

"reasons" for the current state of affairs. But no one can seriously 

deny that Texas’ shameful educational effort which continues to this 

29 

 



  

g | 

  

very day is one of the "major reasons." As a result, the Appellants 
point out, there are more "qualified" Anglo than minority attorneys. 

In his opening statement, the lead attorney for the state, conceded 
that there are "a shamefully low number of minority lawyers in Texas" 
and that it takes "gall [for] the state to raise this as an issue." 

Tr. 1-14. 

But raise it they did. 1In an attempt to fit this case into the 
Title VII context presented in Wards Cove Packing wv. Atonio,   

Uu.s._  , 109 s.Ct. 2115 (1989), Appellants created a labor force 
analysis of "Qualified Judicial Candidates." In such a context, there 

are obviously more "qualified Anglo" attorneys. 

To begin with, this is not an appropriate approach since we are 

looking at elections for State District Judge which are run, one on 

one, between qualified candidates, This is not the hiring of 

employees from a labor pool to work in an Alaskan packing shed. 

However, even if this case dealt with packing shed employees, 

Plaintiffs would win because the state has admitted that the lack of 
"qualified" minority lawyers ("shamefully low number of minority 

lawyers in Texas" ) is a direct result of historical discrimination. 

Just months ago, a unanimous Texas Supreme Court held that educational 

discrimination is not a thing of the past but a present increasing 

problem to Black and Mexican American Texans. Edgewood I.S.D. wv. 
  

Kirby, 777 S.W. 2d 392 (Tex. S.Ct. 1989). 

30 

 



    
A. An Accumulation of Discrimination. 

Dr. Champagne, one of the expert witnesses for the Defendants, 
testified on direct examination that "ap increase in minority 
judges... is desireable" and would "provide us with a more open 
political system." Tr. '4=-136,137. "His solution to the problem was 
not to change the way judges were elected but to institute a mass 
effort to increase the number of minority law Students. In his own 
words: 

some drastic interv 
school students... 
deal of influence, 
if you want to cre 

ention into the recruitment of law To an academic, people with a great 
er are lawyers. And 
hange in the social system, you create that change by creating more lawyers and the effect of that 1s to create more judges. id. at 137 

On cross examination, Dr. Champagne conceded that this indirect 
approach to increasing minority judges through expanding minority 
enrollment in our law schools: 

will take twenty years. 
The Court: Like Brown vs _the Board of Education, everybody moved quickly right after 1954, 

id. 4-161. 
  

To begin with, just this type of accumulation of discrimination 
was specifically considered when the original Voting Rights Act was 
debated in 1965. Senator Javits, one of the floor managers for the 
bill in the Senate responded to Senator Ervin: 

The bill was designed not only to correct an active history of discrimination, the denying to the Negro of the right to register and vote, but also to deal with the accumulation of discrimination. [matter omitted] But to say that the bill has only one dimension and to say, "I am 

31 

 



   

  

not discriminating now" 
purpose of the bill. 

Statutory History of the United States: Civil Rights Bernard Schwartz ed., McGraw Hill Book Co. (1970) at 1514- «1515. 

is neither the background nor the 

In an even larger sense, the record in this case demonstrates 
there are significant numbers of minority lawyers who meet the 
qualifications of Texas law in each jurisdiction considered by the 
district court--as many as 300 in Dallas and S500 in Houston. The 
fact that there may be a larger number of "qualified" Anglo lawyers 
than "qualified" minority lawyers is not relevant to the choice of an 
individual voter in an individual contest in which both candidates 
meet the qualification tests, Dr. Champaigne conceded on cross 
examination "when You get down to filing for candidacy we have one 
black lawyer running against one white Jawyer.” . Tr. 4-161. The 
Voting Rights Act deals with elections and the rights of minority 
citizens to choose and not to have that choice diluted in the at-large 
context. 

The Appellants’ position here would turn the Voting Rights Act 
on its ear. The bottom line is that they argue for a standard of 
proportional representation based upon the number of "qualified" 
lawyers even though they concede that the number of minority lawyers 
has been artificially suppressed through historical discrimination. 
Section 2 of the Voting Rights Act is not about proportional 

representation or the rights of candidates, it is about insuring that 
minority voters are able to elect candidates of their choice. 

32 

 



    

B. The Appellants’ Twenty Year Plan Will Take Too Long. 

Dr. Champaigne’s twenty year plan to expand minority law school 
recruitment to remedy the problem was conceded to be an "academic" 
solution. If in the forty years since Blacks have been admitted to 
Texas law schools, 

The time factor aside, a "some drastic 
intervention into the recruitment of minority law students" will 
require the expenditure of significant time and money by the state. 
Where does Dr. Champaigne, or the elected officials who offered his 
testimony, think we in the legislature are going to find the money for 
this solution. The legislature is now is special session dealing with 

Court. Dealing with law school inequity at any time in the 
foreseeable future is not in the realm of the realistic. 

33 

 



    
CONCLUSION 
  

The result of the decision by the district court puts the urban 
areas in question on the same footing as the balance of the state. 
Judges are to be elected from smaller districts SO that the minority 
voters have an opportunity to elect the candidates of their choice and 
all voters have an opportunity to exercise an intelligent choice of 
who to support. Under the current System, neither takes place. 

Respectfully Submitted, 

Orlando Garcia 
Jose Garza 200 Navarro Suite 101 Judith Sanders Castro San Antonio, Texas 78205 Mexican American Legal Member of and Counsel for Defense and Educational Fund Mexican American Legislative 140 East Houston, Suite 300 Caucus 
San Antonio, Texas 78205 
(512) 224-5476 
Counsel for MALDEF 

Larry Evans 
Bertha Alicia Mejia 2323 Caroline 
1211 Hyde Park Houston, Texas 77004 Houston, Texas 77006 (713) 659-5008 
(713) 522-9609 
President of and Counsel for 
Mexican American Bar Assn. 

Member of and Counsel for 
Black Legislative Caucus 

CERTIFICATE OF SERVICE 
  

I hereby certify that on this day of March, 1990, a true 
and correct copy of the foregoing Brief of Amicus Curiae was served   

by mail upon all counsel of record. 

  

34 

 



APPENDIX 

 
 
 
 
 

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ROLANDO L. RIOS 
Attorney At Law 

201 N. ST. MARY'S, SUITE 521 
SAN ANTONIO, TEXAS 78205 

512-222-2102 

December 21, 1989 

FEDERAL EXPRESS - OVERNIGHT LETTER 

The Honorable Lucius D. Bunton 
Chief Judge, United States District Court Western District of Texas 
United States Courthouse 
Midland, Texas 79702 

Re: LULAC #4434, et. al. v, Mattox, et.al. Civil Action No. MO-88-CA-154 

Dear Judge Bunton: 

The Plaintiffs, including intervening Plaintiffs, have reached an agreement with the Defendant Attorney General, as the attorney for the State of Texas, on an interim plan for the 1990 elections of district judges. The plan has been submitted to you by the Attorney Generals Office. Enclosed is Plaintiffs Proposed Order : 

There is no substantive difference between this plan and Senate Bill (SB) 42 and i 

special 
se of Governor Clements’ refusal to place the issue on the call, S.B. 42 was ¢ State Scnate (sce attachment A) which is a 

(collectively 
other house 
the House Redistricting Committee by a 6-1 vote (sce attachment B) on December 7, 1989, 

The plan allows everything to proceed, except that the elections for the judges are by subdistrict, (House Legislative District, County Commissioner or Justice of the Peace Precinct). All of these subdistrict lines have been precleared by the Department of Justice (DOJ). All voting precincts are undisturbed, therefore the plan can FO into effect . immediately. Candidates that have alrcady filed can proceed uninterrupted except that they may now direct their campaign to a specific arca of the county and probably lower their campaign expenses. 

In response to Justice FLillips' proposal, the Plaintiffs strongly oppose such a plan. Elimination of (nc party system would have an adverse effect on minorities (see cites i: our proposed order) and probably would not be



    
' 

’ 

precleared by the Department ‘of Justice. Further, his proposal calls for run- off elections in December, during the holiday season, which would hurt minority turn out. Iis pln would be most disruptive since all candidates who have already filed must LOW suspend their campaign and a new, nonpartisian clection system would have to be designed. The issue of party elections should be delt with by the legislzture. 

Plaintiffs urge this court 
General will not seck a st 
disruption. We think it js 
community, who won this Ia 

to adopt the agreed interim plan. 
ay, therefore the electi 

needs of the minority wsuit, and it is the right thing to do. 

Very Truly Yours, 

Rolando L. Rios 3 
Attorney for Plaintiffs RLR/rlr 

ce: The Honorable Jim Mattox 
Attorney General of Texas 

The Honorable Thomas R. Phillips 
Chief Justice 

Mr. J. Eugene Clements 
Porter & Clements ; 
700 Louisiana, Suite 3500 
Houston, Texas 77002-2730 

Mr. Robert H. Mow, Jr. 
Hughes & Luce 
2800 Momentum Place 
1717 Main Street 
Dallas, Texas 75201 

 



    
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EDDIE BERNICE JOHNSON 
SENATOR The Se DISTRICT 23 

CAPITOL OFFICE. nunler nf P.O. Box 12068 
Austin, Texas 78711 : 
512/463-0123 

Carmien Chr Stake wf Texns EbucaTion 
b 

DISTRICT OFFICE: 
| 

Subcommittee: 
December 8, 1989 

3005, Zong Siwy. 

Chair: Health and 

Dallas, Texas 75208 
Human Services 

214/942.0123 
HEALTH AND HUMAN 
SERVICES 

To Whom It May Concern: 

We, the undersigned members of the Texas Legislature, support the concept outlined in s.B. 42, 71st Legislature, 2nd Called Session, a common-sense interim solution to the LULAC, et al v,. Matt 
ion of district : judges in nine Texas counties. This legislation offers an interim plan using existing district lines for only those judges up for election in 1990. A final plan would be 7 developed in 1991 wing redistricting. : 

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Note; The names are:Eddie Bernice Johnson, Carl Parker, Hector Uribe, Carlos Truan, Craig "Vash- ington, Tati Santiesteban, Hugh Parmer, Ted Lyon John Whitmire, Gonzalo Barrientos, Chet Brooks Steve Carriker, Ken Armbrister, Chet Edwards, 
Temple Dickson and Gene Green. There are two extra signatures, they arefrom State Representatives. 

 



    
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Rar 

Che State of Texas 
Ralph R. Wallace, 11] House of R[epresentatives Commitcees: § 

Austin, Texas 
Cultural & Historical Resources Chairman, 

Chairman Democratic Caucus 

Financial Institutions 

December 21, 1989 

The Honorable Jim Mattox 
Attorney General, State of Texas Attorney General's Office 
Austin, Texas 78701 

Dear General Mattox: 

In conjunction with several member Representatives, my staff and others h Texas House to determine support for H 

The undersigned House members believe this viable, interim plan although it may not re Preference for a final, long-term solution. 

Plan represents a 
flect each member,s exact 

Despite the difficulty finding House members Season, each of the members 1j 
113, signed a letter supporting that legislation, or made a verbal commitment to support the interim Plan. In addition six House members expressed support but wished not to be 1i sted for political reasons or because they have cases pending before affected district 

  

The total number of members, listed and unlisted, is 71, and I am confident that at least 76 members, a majority of the House, will express support for the interim Plan when we are able to reach them after the Christmas holiday. We will provide additional names at a later date should you neeed them. 

Sincerely, 
T cnmem——. — 

-* 5 of E— 

St. Rep. Ralph Wallace 

Attachement: List -of House Members 

Capitol Office: P.O. Box 2910. 
District Office: P.O. Box 1 

Austin, Texas 78768-2910. 512-463-0732 
2667 « Houston, Texas 70217 + 712-A44.2159 

 



   

hb) 
. 

    
The State [ Texas Ralph R. Wallace, 111 Bouse of Representatives 

Austin, Texas 
Democratic Caucus 

Rep. Alexander 
Rep. Linebarger Rep. Beauchamp : Rep. Lucio Rep. Berlanga 
Rep. Luna, A. Rep. Blair 
Rep. Madla Rep. Cain 
Rep. Martinez Rep. Cavazos 
Rep. Luna, G. Rep. Chisum 
Rep. McDonald Rep. Colbert 
Rep. McKinney Rep. Collazo 
Rep. Melton Rep. Conley 
Rep. Morales Rep. Counts 
Rep. Moreno, A. Rep. Cuellar, H. 
Rep. Moreno, Pp. Rep. Cuellar, R. 
Rep. Oakley Rep. Delco 
Rep. Parker Rep. Denton g Rep. Patterson Rep. Dutton 
Rep. Perez Rep. Earley 
Rep. Rangel Rep. Edge 
Rep. Rodriquez Rep. Edwards 
Rep. Russell Rep. Evans 
Rep. Saunders Rep. Garcia 
Rep. Seidlits Rep. Gavin 
Rep. Swift Rep. Glossbrenner 
Rep. Telford Rep. Granoff 
Rep. Thompson, G. Rep. Guerrero 
Rep. Thompson, 8S. Rep. Harrison 
Rep. Wallace Rep. Hightower 
Rep. Warner Rep. Hinojosa 
Rep. Willis Rep. Hudson, D. Rep. Wilson Rep. Hudson, S. Rep. Wolens Rep. Johnson, J. 

Rep. Junell 
Rep. Laney 
Rep. Larry 
Rep. Lewis, R. 

do not want their names listed at this time. 

plan at this time. 

Capitol Office: P.O. Box 2910. Austin, Texas 78768-2910. 512-463-0732 District Office: P.O. Box 12667 » Houston, Texas 77217 « 713-644-2359 

  

Committees: 
Cultural & Historical Resources 

Chairman 

Financial Institutions 

In addition, we have positive commitments from six members who 

Further, two house members endorsed the major aspects of the interim plan but refused to be counted as supporting this specific