League of United Latin American Citizens (LULAC), Council #4434 v. Mattox Brief for Plaintiff Intervenor-Appellee

    No.

In The

Supreme Court of the United States
October Term, 1990
--------------- ♦---------------

LEAGUE OF UNITED LATIN AMERICAN 
CITIZENS, ET AL.

and
JESSE OLIVER, ET AL.,

Petitioners,
v.

JIM MATTOX, ET AL.,
Respondents.

--------------- «---------------
Petition For A Writ Of Certiorari 

To The United States Court Of Appeals 
For The Fifth Circuit
--------------♦--------------

PETITION FOR A WRIT OF CERTIORARI

^W illia m  L . G a r rett

B ren d a  F Iu ll  T h o m pso n  
8300 Douglas, Suite 800 
Dallas, TX 75225 
214/ 369-1952

R o la n d o  L . R io s 
201 N. St. Mary's, # 521 
San Antonio, TX 78205 
512/ 222-2102

Attorneys for Petitioners
LULAC, et al.
T exa s R u ra l  L eg a l  A id , In c . 

D avid  H a ll  
259 S. Texas 
Weslaco, TX 78596 
512/ 968-6574

* Attorney of Record for 
LULAC, et al.

S usan  F in kelstein

201 N. St. Mary's, # 624 
San Antonio, TX 78205 
512/ 222-2478

Attorneys for Petitioner 
Christina Moreno

* * E dw ard  B . C lo u tm a n  II I  
3301 Elm St.
Dallas, TX 75226 
214/ 939-9222

E . B rice  C u n n in gh am  
777 S. R. L. Thornton 
Dallas, TX 75203 
214/ 428-3793

Attorneys for Petitioners 
Jesse Oliver, et al.

**Attorney of Record for 
Jesse Oliver, et al.

COCKLE LAW BRIEF PRINTING CO., (800) 22S-6964 
OR CALL COLLECT (402.) 342-2831



1

QUESTION PRESENTED FOR REVIEW
1. Does Section 2 of the Voting Rights Act, 42 
U. S. C. 1973, apply to dilution claims in judicial 
election systems?



11

Plaintiffs:
League of United Latin American Citizens (Statewide)
LULAC Local Council 4434
LULAC Local Council 4451
Christina Moreno
Aquilla Watson
Joan Ervin
Matthew W. Plummer, Sr.
Jim Conley 
Volma Overton 
Gene Collins 
A1 Price
Judge Mary Ellen Hicks 
Rev. James Thomas

Plaintiff-Intervenors:
Harris County:
Houston Lawyers' Association
Alice Bonner
Weldon Berry
Francis Williams
Rev. William Lawson
DeLoyd T. Parker
Bennie McGinty
Dallas County:
Jesse Oliver 
Fred Tinsley 
Joan Winn White
Defendants:
William P. Clements, Governor, State of Texas (Dismissed 
prior to trial)
Jim Mattox, Attorney General of Texas 
George Bayoud, Secretary of State 
Texas Judicial Districts Board

LIST OF ALL PARTIES



Ill

LIST OF ALL PARTIES -  (Continued)
Thomas R. Phillips, Chief Justice, Texas Supreme Court 
Mike McCormick, Presiding Judge, Court of Criminal 
Appeals
Ron Chapman, Presiding Judge, 1st Admin. Judicial 
Region
Thomas J. Stovall, Jr., Presiding Judge, 2nd Admin. Judi­
cial Region
James F. Clawson, Jr., Presiding Judge, 3rd Admin. Judi­
cial Region
John Cornyn, Presiding Judge, 4th Admin. Judicial 
Region
Robert Blackmon, Presiding Judge, 5th Admin. Judicial 
Region
Sam B. Paxson, Presiding Judge, 6th Admin. Judicial 
Region
Weldon Kirk, Presiding Judge, 7th Admin. Judicial 
Region
Jeff Walker, Presiding Judge, 8th Admin. Judicial Region 
Ray D. Anderson, Presiding Judge, 9th Admin. Judicial 
Region
Joe Spurlock II, President, Texas Judicial Council, 
Leonard E. Davis

Defendant-Intervenors:
Judge Sharolyn Wood (Harris County)
Judge Harold Entz (Dallas County)
Bexar County:
Judge Tom Rickoff 
Judge Susan D. Reed 
Judge John J. Specia, Jr.
Judge Sid L. Harle 
Judge Sharon Macrae 
Judge Michael D. Pedan



IV

Question Presented for Review .....................................  i

List of All Parties..............................................................  ii

Table of Contents..............................................................  iv

Table of Authorities..........................................................  v

Opinions Below .........................    2

Jurisdiction..................................................................   2

Statutory Provisions........................................................... 2

Statement of the C ase....................................................... 5

Reasons for Granting the W rit.......................................  11

I. The Decision of the En Banc Fifth Circuit Conflicts
with Applicable Decisions of this Court.............. 11

II. There is a Conflict Between the Fifth and Sixth
Circuits...................................     14

Analysis of the Conflict.......................................  14

1. Judges are "Representatives" for Pur­
poses of the Voting Rights Act................ 14

2. The Non-Applicability of One-Person,
One-Vote Principles to Judicial Election 
Systems Does Not Foreclose a Vote Dilu­
tion Claim......................................................  17

3. The Interpretation of the Voting Rights
Act by the Attorney General is Authori­
tative......................................    18

The Conflict Involves an Important Question 
of Fundamental R ights.........................................  19

Conclusion...........................     20

TABLE OF CONTENTS
Page



V

C a se s :

Allen v. State Board of Elections, 393 U. S. 544 (1969) . . . .  13

Atlantic Cleaners & Dyers v. United States, 286 U. S.
427 (1932) ............................................................ ............  12

Chisom v. Edwards, 839 F. 2d 1056 (5th Cir. 1988), 
cert, denied sub nom. Roemer v. Chisom, 109 S. Ct.
390 (1988)................................................................ .. 8, 9, 19

Dillard v. Crenshaw Co., 831 F. 2d 246 (11th Cir.
1987)............................... ......................................................  19

Georgia State Board of Elections v. Brooks, Civ. No.
CV 288-146 (S. D. Ga. 1989), aff'd mem. I l l  S. Ct.
288 (1990).................................................................. ..11, 13

Haith v. Martin, 618 F. Supp. 410 (E. D . N. C. 1985),
aff'd mem., 477 U. S. 901 (1986).....................  11, 12, 13

LULAC v. Clements, 914 F. 2d 620 (5th Cir. 1990) (en
banc)................................................................................ passim

Mallory v. Eyrich, 839 F. 2d 275 (6th Cir. 1988) 14, 17, 19

Mandel v. Bradley, 432 U. S. 173 (1977)...............................  13

Nipper v. U-Haul Co., 516 S.W.2d 467 (Tex. Civ.
App. 1974)  ............................................10, 19

Pampanga Sugar Mills v. Trinidad, 279 U. S. 211
(1929).................................................................................... 12

South Carolina v. Katzenbach, 383 U. S. 301 (1966) . . . .  13

Thornburg v. Gingles, 478 U. S. 30 (1986)................... 6, 16

United States v. Board of Commissioners of Sheffield,
Ala., 435 U. S. 110 (1978)................................................. 18

Wells v. Edwards, 347 F. Supp. 453 (M. D. La. 1972) 
aff'd, 409 U. S. 1095 (1973).....................................

TABLE OF AUTHORITIES
Page

17



VI

S tatutes:

28 U.S.C. 1254(1)...............................  2

28 U.S.C. 1331............................................................................ 6

42 U.S.C. 1973, as amended.....................................2, 5, 14

42 U.S.C. 1973b(f)(2)................................................................ 3

42 U.S.C. 1973c..........................................................................3

42 U.S.C. 1983............................................................................5

Texas Civil Practice & Remedies Code, Ch. 15........... 10

Texas Elec. Code, Sec. 2.001.................................................10

Texas Elec. Code, Sec. 172.003 .........................................  10

O th er  A u th o r ities:

Texas Const., Art. 5, Sec. 7 ................................................ .9

Texas Const., Art. 5, Sec. 8 .............................  6

United States Constitution, Fourteenth and Fif­
teenth Amendments...................................................passim

Senate Report, No 97-417, 97th Congress 2d Sess., 
reprinted in 1982 U. S. Code Cong. & Admin.
N ew s................................................................................7, 16

TABLE OF AUTHORITIES -  Continued
Page



No.
--------------*--------------

In The

Supreme Court of the United States
October Term, 1990
--------------«--------------

LEAGUE OF UNITED LATIN AMERICAN 
CITIZENS, ET AL.

and
JESSE OLIVER, ET AL.,

Petitioners,
v.

JIM MATTOX, ET AL.,
Respondents.

--------------- «---------------

Petition For A Writ Of Certiorari 
To The United States Court Of Appeals

For The Fifth Circuit
--------------- «---------------

PETITION FOR A WRIT OF CERTIORARI
--------------- *---------------

Petitioners, the League of United Latin American 
Citizens, et al., and Jesse Oliver, et al., pray that a Writ of 
Certiorari be issued to review the decision in this case of 
the United States Court of Appeals for the Fifth Circuit, 
en banc.

1



2

OPINIONS BELOW

The opinion of the United States District Court for 
the Western District of Texas has not been reported, but is 
included in the Appendix.1 The opinion of a panel of the 
United States Court of Appeals for the Fifth Circuit is 
reported at 902 F. 2d 293 (5th Cir. 1990). The order grant­
ing rehearing en banc (sua sponte) is reported at 902 F. 2d 
322 (5th Cir. 1990). The opinion of the United States Court 
of Appeals for the Fifth Circuit, en banc, is reported at 914 
F. 2d. 620 (5th Cir. 1990), and reproduced in the Appen­
dix.

--------------4--------------

JURISDICTION

The judgment of the Court of Appeals was entered 
on September 28, 1990. The jurisdiction of this Court is 
invoked pursuant to 28 U.S.C. 1254(1).

--------------4--------------

STATUTES INVOLVED

Section 2 of the Voting Rights Act of 1965, 42 U.S.C. 
1973, as amended, provides as follows:

(a) No voting qualification or prerequisite 
to voting, or standard, practice, or procedure

1 All references to the Appendix refer to the Appendix 
filed in No. 90-813, Houston Lawyers' Assn., et al. v. Jim 
Mattox, et al. The Houston Lawyers' Assn, was a plaintiff- 
intervenor in the case before the district court, as were Jesse 
Oliver, et al. who are joining petitioners League of United Latin 
American Citizens, et al. in this petition.



3

shall be imposed or applied by any State or 
political subdivision in a manner which results 
in a denial or abridgement of the right of any 
citizen of the United States to vote on account of 
race or color, or in contravention of the guaran­
tees 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 
circumstances, it is shown that the political pro­
cesses 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 subsection (a) of this sec­
tion in that its members have less opportunity 
than other members of the electorate to partici­
pate in the political process and to elect repre­
sentatives of their choice. The extent to which 
members of a protected class have been elected 
to office in the State or political subdivision is 
one circumstance which may be considered: 
Provided, That nothing in this section estab­
lishes a right to have members of a protected 
class elected in numbers equal to their propor­
tion in the population.

Section 4 of the Voting Rights Act of 1965, 42 U.S.C.
1973b(f)(2), provides, in pertinent part, as follows:

No voting qualification or prerequisite to vot­
ing, or standard, practice, or procedure shall be 
imposed or applied by any State or political 
subdivision to deny or abridge the right of any 
citizen of the United States to vote because he is 
a member of a language minority group.

Section 5 of the Voting Rights Act of 1965, 42 U.S.C.
1973c, provides, in pertinent part, as follows:

Whenever a State of political subdivision with 
respect to which the prohibitions set forth in



4

section 4(a) based upon determinations made 
under the first sentence of section 4(b) are in 
effect shall enact or seek to administer any vot­
ing qualification or prerequisite to voting, or 
standard, practice, or procedure with respect to 
voting different from that in force or effect on 
November 1, 1964, or whenever a State or politi­
cal subdivision with respect to which the prohi­
bitions set forth in section 4(a) based upon 
determinations made under the second sentence 
of section 4(b) are in effect shall enact or seek to 
administer any voting qualification or prerequi­
site to voting, or standard, practice, or pro­
cedure with respect to voting different from that 
in force or effect on November 1, 1968, or when­
ever a State of political subdivision with respect 
to which the prohibitions set forth in section 
4(a) based upon determinations made under the 
third sentence of section 4(b) are in effect shall 
enact or seek to administer any voting qualifica­
tion or prerequisite to voting, or standard, prac­
tice, or procedure with respect to voting 
different from that in force or effect on Novem­
ber 1, 1972, such State or subdivision may insti­
tute an action in the United States District Court 
for the District of Columbia for a declaratory 
judgment that such qualification, prerequisite, 
standard, practice or procedure does not have 
the purpose and will not have the effect of deny­
ing or abridging the right to vote on account of 
race or color, or in contravention of the guaran­
tees set forth in section 4(f)(2), and unless and 
until the court enters such judgment no person 
shall be denied the right to vote for failure to 
comply with such qualification, prerequisite, 
standard, practice, or procedure: Provided, That 
such qualification, prerequisite, standard, prac­
tice, or procedure may be enforced with out 
such proceeding if the qualification, prerequi­
site, standard, practice, or procedure has been 
submitted by the chief legal officer or other



5

appropriate official of such State or subdivision 
to the Attorney General and the Attorney Gen­
eral has not interposed an objection within sixty 
days after such submission, or upon good cause 
shown, to facilitate an expedited approval 
within sixty days after such submission, the 
Attorney General has affirmatively indicated 
that such objection will not be made. Neither an 
affirmative indication by the Attorney General 
that no objection will be made, nor the Attorney 
General's failure to object, nor a declaratory 
judgment entered under this section shall bar a 
subsequent action to enjoin enforcement of such 
qualification, prerequisite, standard, practice, or 
procedure. In the event the Attorney General 
affirmatively indicates that no objection will be 
made within the sixty day period following 
receipt of a submission, the Attorney General 
may reserve the right to reexamine the submis­
sion if additional information comes to his 
attention during the remainder of the sixty-day 
period which would otherwise require objection 
in accordance with the section. Any action 
under this section shall be heard and deter­
mined by a court of three judges in accordance 
with the provision of section 2284 of title 28 of 
the United States Code and any appeal shall lie 
to the Supreme Court.

--------------- «---------------

STATEMENT OF THE CASE 

The Proceedings Below

This is a voting rights case brought by Black and 
Hispanic citizens of and organizations within the State of 
Texas. Suit was filed in the United States District Court 
for the Western District of Texas under the Voting Rights 
Act, 42 U.S.C. 1973, and under 42 U.S.C. 1983, alleging



6

violations of the Fourteenth and Fifteenth Amendments 
to the United States Constitution. Jurisdiction below was 
based upon 28 U.S.C. 1331.

At issue is the at-large method of electing district 
judges.2 The challenge was limited to nine metropolitan 
counties (Harris, Dallas, Bexar, Tarrant, Travis, Lubbock, 
Midland, Ector, and Jefferson counties) out of Texas' 254 
counties; however, the challenge included 172 (44%) of 
the state's then 375 district judges.

After a trial to the Court, the district judge entered 
findings of fact and conclusions of law, and found a 
violation of Section 2 of the Voting Rights Act in all nine 
counties. (Appendix, at pp. 183a-304a) The Court did not 
find that the 1985 Amendment to the Texas Constitution 
allowing a county to sub-divide itself for purposes of 
election of district judges was motivated by discrimina­
tory intent. Finding of Fact No. 36, and Conclusions of 
Law Nos. 22-23. (Appendix, at pp. 282a-283a; 301a-302a)

In each county challenged, the trial court found for 
plaintiffs on each of the threshold Gingles factors, Thorn­
burg v. Gingles, 478 U. S. 30 (1986):

• the minority group was sufficiently con­
centrated so as to constitute a voting age 
majority in a single member district, 
(Appendix, at pp. 200a-209a), and

• the minority group voted cohesively, 
(Appendix, at pp. 210a-275a), and

2 In Texas, the trial court of general jurisdiction is the 
district court. Texas Constitution, Art. 5, Sec. 8.



7

• a white voting bloc usually defeated the 
choice of the minority voters. (Appen­
dix, at pp. 210a-275a).

In addition, the trial court found that voting in these 
counties was racially polarized, (Appendix, at pp. 
210a-275a), and that there was a tack of success of minor­
ity candidates. (Appendix, at pp. 279a-281a). As required, 
it made findings regarding the "typical factors," (Appen­
dix, at pp. 275a-285a) as discussed in the Senate Report, 
No 97-417, 97th Congress 2d Sess., reprinted in 1982 U. S. 
Code Cong. & Admin. News at pp. 177 et seq., which is a 
part of the legislative history of the 1982 amendments to 
the Voting Rights Act.

Finally, based upon the "totality of the circum­
stances," the trial court found that minority voting 
strength was diluted in each of the targeted counties. 
(Appendix, at pp. 297a-301a).

Although given an opportunity to do so, the Texas 
Legislature failed to remedy the discriminatory at-large 
election system. Therefore, on January 2, 1990, the trial 
court enjoined further use of the at-large electoral system 
in these counties. Pursuant, in part, to an agreement 
between the plaintiffs and the Attorney General for the 
State of Texas, it ordered a non-partisan, interim election 
plan under, which the counties were sub-divided into 
districts coincident with existing electoral boundaries for 
state representatives, or county commissioners, or justice 
of the peace precincts. On January 11, 1990, this interim 
plan was stayed by the United States Court of Appeals 
for the Fifth Circuit pending appeal.



8

On May 11, 1990, that court reversed the district 
court, holding 2-1 that trial judges occupy single-member 
offices which are incapable of being further sub-divided. 
901 F. 2d 293 (5th Cir. 1990). Four days later, pursuant to a 
majority vote of the active judges, a rehearing en banc was 
ordered, and on September 28, 1990, the en banc court 
reversed the trial court in a severely split opinion. 914 F. 
2d 620 (5th Cir. 1990). (Appendix, at pp. la-182a).

The majority opinion, written by }. Gee, (Appendix, 
at pp. la-35a), held that even though an intentional dis­
crimination claim under the Fourteenth and Fifteenth 
Amendments to the U. S. Constitution could be main­
tained for judicial elections, and even though Section 5 of 
the Voting Rights Act applies to judicial elections, and 
even though some elements of Section 2 apply to judicial 
elections, the amended Section 2 of the Voting Rights Act 
which incorporates a "results test" does not allow a vote 
dilution claim against a judicial election system, regard­
less of how discriminatory it may be.3 They specifically 
overruled a prior opinion of that court to the contrary, 
Chisom v. Edwards, 839 F. 2d 1056 (5th Cir. 1988), cert, 
denied sub nom. Roemer v. Chisom, 109 S. Ct. 390 (1988).4

3 The findings of the district court, (Appendix, at pp. 
183a-304a), undisturbed on appeal, establish that minority 
voters in the targeted Texas counties are unable to elect judges 
of their choice.

4 Chisom v. Roemer, as the case is now called, is also before 
this Court on Petition for Writ of Certiorari, No. 90-797. Chisom 
involves the Louisiana Supreme Court. LULAC involves Texas 
trial judges. The Higginbotham concurrence in this case, 914 F. 
2d 634-651, raises the issue of whether Section 2 of the Voting 
Rights Act covers the election of appellate state court judges 
but not trial judges. It is incumbent upon this Court to fully 
resolve the issue of Section 2 applicability to judicial elections.



9

One concurring opinion, written by J. Higginbotham, 
(Appendix, at pp. 47a-114a), following Chisom, supported 
the prior panel opinion in LULAC that although Section 2 
of the Voting Rights Act covers judicial elections, there is 
an exception to coverage for trial judges based upon the 
concept that a single-member office is not amenable to 
further division.

The dissent, written by J. Johnson, (Appendix, at pp. 
115a-182a), author of the Chisom opinion, strongly urged 
that all sections of the Voting Rights Act are applicable to 
all judicial elections, and that the minority vote dilution 
proved at trial should be remedied. He characterized the 
majority opinion as "dangerous" and a "burning scar on 
the flesh of the Voting Rights Act." (Appendix, at p. 
116a).

Statement of Facts

Judicial districts are created by statute. District 
judges are elected in the targeted counties in county 
wide,5 partisan elections, but each judicial candidate 
must file for a specific court, a numbered post, e. g. the 
254th District Court. Each of the targeted judicial districts 
is county wide, with the exception of the 72nd Judicial 
District, which covers two counties.

Qualifications for office are set by the Texas Constitu­
tion and by statute. Texas Const., Art. 5, Sec. 7. To become

5 The Texas Constitution requires judicial districts to be no 
smaller than a county unless authorized by a majority of the 
voters in the county. Texas Const., Art. 5, Sec 7a(i). To date, no 
election under this provision has been held.



10

the party nominee for a numbered judicial post, a candi­
date must receive a majority of the votes cast, Texas Elec. 
Code, Sec. 172.003; however, in the general election, a 
plurality determines the winner. Texas Elec. Code, Sec. 
2.001. A district judge's term is four years, and such 
terms are staggered in multi-judge counties.

Although a district judge usually sits in the county 
from which he/she is elected, jurisdiction of any district 
court is statewide. Nipper v. U-Haul Co., 516 S.W.2d 467, 
470 (Tex. Civ. App. 1974). Venue is determined by a 
complex set of statutes. Texas Civil Practice & Remedies 
Code, Ch. 15.

Minority electoral success has been minimal. A
review of the targeted counties reveals the following:

County No. of 
Judges

No. of
Minority
Judges

Total
Population

Percent
Minority6

Harris 59 3 (5%) 2,409,544 19.7%
Dallas 37 2 (5%) 1,556,549 18.5%
Tarrant 23 2 (9%) 860,880 11.8%
Bexar 19 5 (26%) 988,800 46.6%
Travis 13 0 (0%) 419,335 17.2%
Jefferson 8 0 (0%) 250,938 28.2%
Lubbock 6 0 (0%) 211,651 27.1%
Ector 4 0 (0%) 115,374 25.9%
Midland 3 0 (0%) 82,636 23.5%

6 "No. of Minority Judges" and "Percent Minority" here 
refer only to the ethnic or racial group on whose behalf a case 
was presented to the district court. For example, in Dallas 
County, there were 2 Black judges and one Hispanic judge at 
time of trial, and Blacks were 18.5% and Hispanics were 9.9% 
of the total population; however, a case was presented only on 
behalf of Blacks.



11

The above chart presents data as of the time of trial 
in September, 1989. Perhaps more revealing of the lack of 
minority access is the fact that in Harris County only two 
Blacks have defeated whites in seventeen contested judi­
cial elections. In Dallas County, only two Blacks have 
won out of seven contests. Bexar County results reveal 
that only one Hispanic has been victorious in six contests. 
In the other targeted counties, no minority has ever won. 
In Jefferson, Lubbock, Ector and Midland counties, no 
minority has ever run. Findings of Fact No. 31. (Appen­
dix, at pp. 279a-280a).

--------------- *---------------

REASONS FOR GRANTING THE WRIT

I.
The Decision of the En Banc Fifth Circuit Conflicts with 

Applicable Decisions of This Court

Despite its contention to the contrary, the en banc 
decision of the Fifth Circuit conflicts with the decisions of 
this Court in Haith v. Martin, 618 F. Supp. 410 (E. D. N. C. 
1985), aff'd mem., 477 U. S. 901, 106 S. Ct. 3268, 91 L. Ed. 
2d 559 (1986), and most recently, Georgia State Board of 
Elections v. Brooks, Civ. No. 288-146 (S. D. Ga. 1989), aff'd 
mem., I l l  S. Ct. 288 (1990).

These two decisions hold that Section 5 of the Voting 
Rights Act applies to judicial elections. The proscribed 
practices covered by Section 2 and Section 5 are the same: 
any "voting qualification or prerequisite to voting, or 
standard, practice, or procedure" with respect to voting. 
This Court affirmed the holding in Haith v. Martin, 618 F. 
Supp. at 413, that " . . .  the Act applies to all voting



12

without any limitation as to who, or what, is the object of 
the vote." (emphasis in original).

Although the majority opinion of the en banc Fifth 
Circuit does not dispute the Haith decision, and although 
they assert that some portions of Section 2 may apply to 
the judiciary, they held that the "results test introduced in 
response to the holding in Bolden to govern vote dilution 
in the election of 'representatives/ . . .  by its own terms 
does not" apply to the judiciary. LULAC, en banc, 914 F. 2d 
at 629. (Appendix, at p. 29a). As pointed out by both 
Judge Higginbotham's concurrence, LULAC, en banc, 914 
F. 2d at 638-642, (Appendix, at pp. 62a-79a), and Judge 
Johnson's dissent, LULAC, en banc, 914 F. 2d at 655-659, 
(Appendix, at pp. 129a-140a), the majority has constricted 
the coverage of Section 2 by placing an unwarranted 
restriction upon the word "representatives," in light of 
the purposes of the Voting Rights Act, and the definitions 
of "voting" contained therein.

Given the identical language in Sections 2 and 5, 
basic tenets of statutory construction require that the 
sections be given identical meaning. Pampanga Sugar Mills 
v. Trinidad, 279 U. S. 211, 217-218 (1929); Atlantic Cleaners 
& Dyers v. United States, 286 U. S. 427, 433 (1932). The two 
sections work in tandem. The only distinction between 
them relates to whether a voting practice may be contin­
ued or may be implemented. Such a distinction does not 
relate to the application of the two sections to judicial 
elections. If the Fifth Circuit's decision is not reversed, 
then changes in judicial election procedures could be 
prohibited under Section 5, but those identical practices 
could not be eliminated under Section 2. Such an anom­
aly cannot be within the intent of Congress to "rid the



13

country of racial discrimination in voting." South Carolina 
v. Katzenbach, 383 U. S. 301, 315 (1966).

Further, the recent ruling in Brooks may well lay to 
rest the contention that Section 2 of the Voting Rights Act 
does not apply to judicial elections. One of the questions 
presented in the jurisdictional statement in Georgia State 
Board of Elections v. Brooks, supra, was "Whether the Vot­
ing Rights Act Should be Construed to Apply to the 
Election of Judges?" By affirmance, the Supreme Court 
has "rejected the specific challenges presented in the 
statement of jurisdiction" and "prevents lower courts 
from coming to opposite conclusions on the precise issues 
presented and necessarily decided by those actions." 
Mandel v. Bradley, 432 U. S. 173, 176 (1977).

In addition to being contrary to the interpretation of 
the Voting Rights Act by the Supreme Court, the action of 
the Fifth Circuit is contrary to the will of Congress, as 
expressed in the legislative history and reaffirmed by this 
Court, that the Act have the "broadest possible scope." 
Allen v. State Board of Elections, 393 U. S. 544, 566-567, 89 S. 
Ct. 817, 22 L.Ed.2d 1 (1969).

By ignoring the teachings of Haith and now Brooks, 
and the intent of Congress, the Fifth Circuit's en banc 
ruling has carved out an exception to the coverage of the 
Voting Rights Act which will deny thousands of minority 
voters an equal opportunity to vote for judges of their 
choice in an election system free of discriminatory ele­
ments. If the decision of the Fifth Circuit is allowed to 
stand, then the law will be that discrimination in voting 
will not be tolerated, except in the election of judges. This 
Court is called upon to correct this blatant denial of



14

minority voting rights and to effect the will of Congress 
that the nation's electoral systems be free of discrimina­
tion.

II.
There Is A Conflict Between the Fifth and Sixth Circuits

The decision of the Fifth Circuit in this case, which 
held that the system for electing judges is not amenable 
to a vote dilution challenge under the amended Section 2 
of the Voting Rights Act, is directly contrary to the deci­
sion of the Sixth Circuit in Mallory v. Eyrich, 839 F. 2d 275 
(6th Cir. 1988). At issue there was the county wide elec­
tion of judges in a merged municipal (Cincinnati) and 
county (Hamilton County, Ohio) court system. The Sixth 
Circuit held that claims of vote dilution were covered by 
Section 2 of the Voting Rights Act, and remanded the case 
for further proceedings.

In reaching contrary conclusions, each court relied 
upon a set of principles, which, although the same, lead 
to contrary legal conclusions.

Analysis of the Conflict
1. Judges Are "Representatives" for Purposes of 

the Voting Rights Act.

Both decisions examine the use of the word "repre­
sentatives" in the language of the amended Section 2, 42 
U.S.C. 1973:

(b) A violation of subsection (a) of this section 
is established if, based on the totality of circum­
stances, it is shown that the political processes



15

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 subsection (a) of this section in that 
its members have less opportunity than other 
members of the electorate to participate in the 
political process and to elect representatives of 
their choice, (emphasis added).

The majority in the Fifth Circuit concluded that Con­
gress specifically chose a word, "representative," that had 
consistently been interpreted not to include the judiciary. 
They relied principally upon reapportionment cases 
which held that one-person, one-vote rules do not apply 
to the judiciary. LULAC, 914 F. 2d at 626, n. 9. (Appendix, 
at pp. 16a-17a). The majority then reasoned that since 
judges are not representatives for numerical apportion­
ment purposes, then the addition of the word "represen­
tative" to the amended Section 2 prevents any claim of 
vote dilution from being made, even though other parts 
of Section 2 may apply to judicial elections. (Appendix, at 
pp. 24a-27a).

The Sixth Circuit took a broader view and interpreted 
"representative" to be inclusive of the judiciary under the 
reasoning that the Voting Rights Act is intended to rem­
edy all discrimination in voting, and that the 1982 amend­
ments were intended to expand the Act, not restrict it. 
That Court relied upon the definition of "voting" in the 
Act itself, 42 U.S.C. 1973 1 (c)(1):

The terms "vote" and "voting" shall include all 
action necessary to make a vote effective in any 
primary, special, or general election, including, 
but not limited to, registration, listing pursuant 
to this Act, or other action required by law



16

prerequisite to voting, casting a ballot, and hav­
ing such ballot counted properly and included 
in the appropriate totals of votes cast with 
respect to candidates for public or party office 
and propositions for which votes are received in 
an election.

As a result the court determined that judges were "candi­
dates for public . . . office," and, therefore, the system 
under which they are elected is subject to a dilution claim 
under the Voting Rights Act.

Following this Court's rule of statutory interpretation 
that the legislative history is the authoritative source for 
ascertaining Congress' intent in amending the Voting 
Rights Act, Thornburg v. Gingles, 478 U. S. at 43, n. 7, the 
Sixth Circuit noted that the terms "representatives," "can­
didates," and "elected officials" are used interchangeably 
throughout the text.7

As a result, the Sixth Circuit determined that "there 
is no basis in the language or legislative history of the 
1982 amendment to support a holding that use of the 
word 'representative' was intended to remove judicial 
elections from the operation of the Act," Mallory v. Eyrich,

7 a. Senate Report No. 417, at 16: "elected officials;"

b. Ibid., at p. 28: "Section 2 protects the right of minorities 
to elect candidates of their choice;"

c. Ibid., at p. 30: "opportunity to . . . elect candidates of 
their choice;"

d. Ibid., at p. 31: " . . . elect candidates of their choice;"

e. Ibid., at p. 67: " . . .  elect candidates of their choice;"

f. Ibid., at p. 193: Additional Views of Senator Dole: 
" . . .  equal choice of electing candidates of their choice."



17

839 F. 2d 278-281. Thus the judicial election system in 
Ohio was subject to a Section 2 attack.

2. The Non-applicability of One-Person, One-Vote 
Principles to Judicial Election Systems Does 
Not Foreclose a Vote Dilution Claim

It has been held that one-person, one-vote principles 
do not apply to judicial districts. Wells v. Edwards, 347 F. 
Supp. 453 (M. D. La. 1972) aff'd, 409 U. S. 1095 (1973). The 
circuits differ as to whether this principle can be 
extended to the question of coverage by the Voting Rights 
Act.

The Sixth Circuit specifically rejected this extension 
stating that one-person, one-vote principles address an 
equal protection problem under the Fourteenth Amend­
ment, whereas analysis of a Section 2 claim involves the 
construction of an act of Congress outlawing racial dis­
crimination in voting. Mallory v. Eyrich, 839 F. 2d 277-278.

The majority of the Fifth Circuit held that vote dilu­
tion claims were based upon one-person, one-vote princi­
ples, and therefore if the former did not apply to the 
judiciary, then neither could the latter. LULAC, en banc, 
914 F. 2d at 627-628. (Appendix, at pp. 20a-24a). However, 
the concurrence argued that vote dilution cases against 
the judiciary are not precluded by one-person, one-vote 
principles. They reasoned that racial and non-racial acts 
by the state that deny voting strength are not legally the 
same: one is facially neutral in the matter of race; the 
other rests on the concern of submerging the voting 
strength of minorities by the combined force of bigotry



18

and election methods. LULAC, en banc, Higginbotham, 
concurring, 914 F. 2d at 643. (Appendix, at pp. 80a~82a).

3. The Interpretation of the Voting Rights Act by 
the Attorney General Is Authoritative

As this Court has noted in United States v. Board of 
Commissioners of Sheffield, Ala., 435 U. S. 110, 131, 98 S. Ct. 
965, 55 L. Ed. 2d 148 (1978), interpretation of the Voting 
Rights Act by the Attorney General constitutes a compel­
ling argument "especially in light of the extensive role the 
Attorney General played in drafting the statute and in 
explaining its operation to Congress."

At the request of the Fifth Circuit, the present Attor­
ney General filed an amicus brief before the en banc court, 
and sent his Assistant in charge of the Civil Rights Divi­
sion to personally argue this case to emphasize his con­
tention that "The United States has consistently 
interpreted the coverage language of Section 2 and the 
almost identical language in Section 5 to apply to the 
election of all judges (citations omitted)." Supplemental 
Brief for the United States as Amicus Curiae, filed June, 
1990, in 90-8014, LULAC, et al. v. Mattox, et al.

Contrary to Sheffield, the en banc Fifth Circuit charac­
terized the viewpoint of the Attorney General that Sec­
tion 2 of the Voting Rights Act covers judicial elections as 
one of a "scatter of birdshot contentions," LULAC, en 
banc, 914 F. 2d at 630, (Appendix, at p. 30a), and dis­
missed the Attorney General's interpretation without 
analysis.



19

The Sixth Circuit, however, accorded due recognition 
to the view of the Attorney General that Section 2 of the 
Voting Rights Act applies to judicial elections. Mallory v. 
Eyrich, 839 F. 2d at 281.8

The Conflict Involves an Important Question of Funda­
mental Rights

Cases involving judicial elections have been heard or 
are pending in several jurisdictions. Until the Fifth Cir­
cuit's decision in LULAC, no circuit court and no trial 
court, without being reversed, had held that Section 2 of 
the Voting Rights Act does not apply to vote dilution 
claims involving judges.9 Unless resolved by this Court, it 
is obvious that there will be an important and recurring 
conflict involving the basic right to vote. Given the

8 Although not concerned with judicial elections, the Elev­
enth Circuit has also affirmed that "[n]owhere in the language 
of Section 2 nor in the legislative history does Congress condi­
tion the applicability of Section 2 [of the Voting Rights Act] on 
the function performed by an elected official." Dillard v. 
Crenshaw County, 831 F. 2d 246, 250 (11th Cir. 1987).

9 Mallory v. Eyrich, 839 F. 2d 275 (6th Cir. 1988)
Chisom v. Roemer 853 F. 2d 1186 (5th Cir. 1988)
Clark v. Edwards, 725 F. Supp. 285 (M. D. La. 1988) 
Rangel v. Mattox, (5th Cir. No. 89-6226)
Nipper v. Martinez, No. 90-447-Civ-J-16 (M. D. Fla. 1990) 
SCLC v. Siegelman, 714 F. Supp 511 (M. D. Ala. 1989) 
Brooks v. State Bd. of Elec., I l l  S. Ct. 288 (1990)
Hunt v. Arkansas, No. PB-C-89-406 (E. D. Ark. 1989) 
Williams v. St. Bd. of Elec., 696 F. Supp. 1563 (N. D. 111. 
1988)
Martin v. Allain, 658 F. Supp. 1183 (S. D. Miss. 1987) 
Alexander v. Martin, No. 86-1048-CIV-5 (E. D. N. C.) 
LULAC v. Texas, No. B-89-193 (S. D. Tex. 1989)



20

number of cases pending and the fundamental nature of 
the issue, it would be intolerable to allow this conflict to 
continue unresolved.

The conflict between the Fifth and Sixth Circuit's 
interpretation of the coverage of the Voting Rights Act as 
it applies to judicial elections should be resolved by this 
Court.

--------------- «---------------

CONCLUSION

For the above reasons, this Court should grant the 
petition for a writ of certiorari to the United States Court 
of Appeals for the Fifth Circuit.

Respectfully submitted,

^W illia m  L. G a rrett

B ren da  H u ll  T h o m pso n  
8300 Douglas, Suite 800 
Dallas, TX 75225 
214/ 369-1952

R o la n d o  L. R io s 
201 N. St. Mary's, Suite 521 
San Antonio, Tx 78205 
512/ 222-2102

Attorneys for Petitioners 
LULAC, et al,

T exa s R u ra l  L eg a l  A id , I n c . 
D avid  H all 
259 S. Texas 
Weslaco, TX 78596 
512/ 968-6574



21

S usan  F in kelstein

201 N. St. Mary's, Suite 624 
San Antonio, TX 78205 
512/ 222-2478

Attorneys for Petitioner 
Christina Moreno

* Attorney of Record for 
Petitioners LULAC, et al.

’‘'E dw ard  B. C lo utm an  III 
3301 Elm St.
Dallas, TX 75226 
214/ 939-9222

E. B rice C u n n in gh am  
777 S. R. L. Thornton Fwy. 
Dallas, TX 75203 
214/ 428-3793

Attorneys for Petitioners 
fesse Oliver, et al.

* Attorney of Record for 
Petitioners Jesse Oliver, et al.