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

    35 .v s rr^ T y jjJT

UNITED STATES COURT OP APPEALS
FOR THE FIFTH CIRCUIT

90-8014

LEAGUE OF UNITED LATIN AMERICAN 
CITIZENS (LUI.AC), COUNCIL #4434 
et al.,

HOUSTON LAWYERS ASSOCIATION 
et. al

: JUDGE SHAROLYN WOOD AND _.. ... - ——— —HAROLD ENTZ

Appeal from the United States District Court fo 
district of Texas, Midlarid-Odessa Division

BRIEF FOR PLAINTIFF INTERVENOR-APPELLEES 
^'HOUSTON LAWYERS ASSOCIATION, ET AL. fa

JULIUS LeVONNE CHAMBERS 
SHERRILYN A. IFILL

99 Hudson Street, 16th 
New York, New York 100

Of Counsel:
MATTHEWS & BRANSCOMB

GABRIELLE MCDONALD
301 Congress Avenue 
Suite 2050 
Austin, Texas 78701 
(512) 320-5055



CERTIFICATE OF INTERESTED PERSONS 
The undersigned counsel certifies that the following listed 

persons have an interest in the outcome of this case. These 
representations are made in order that the Judges of this Court may 
evaluate possible disqualification or recusal.

1. The plaintiffs in this action: LULAC Local Council 4434,
LULAC Local Council 4451, LULAC (Statewide), Christina Moreno, 
Aquilla Watson, Joan Ervin, Matthew w. Plummer, Sr. , Jim Conley, 
Volma Overton, Willard Pen Conat, Gene Collins, A1 Price, Theodore 
M. Hogrobrooks, Ernest M. Deckard, Judge Mary Ellen Hicks, Rev. 

James Thomas.
2. The attorneys who represented the plaintiffs: William L.

Garrett and Brenda Hall Thompson of the law firm of Garrett,
Thompson & Chang; Rolando L. Rios of the Southwest Voter 
Registration and Education Project; Susan Finkelstein of Texas 
Rural Legal Aid, Inc..

3. The Harris County plaintiff-intervenors in this action: 
Weldon Berry, Alice Bonner, Rev. William Lawson, Bennie McGinty, 
Deloyd Parker, Francis Williams and the Houston Lawyers' 
Association (HLA), a non-profit corporation.

4. The attorneys who represented the Harris County plaintiff-
intervenors: Julius Levonne Chambers, Sherrilyn A. Ifill, of the
NAACP Legal Defense & Educational Fund, Inc.; Gabrielle Kirk

fr(f 1 oi- f r r t W  V- W i lb -  .
McDonald of the law firm Matthews & Branscomb.

5. The Dallas County plaintiff-intervehors: Jesse Oliver,
Fred Tinsley and Joan Winn White.

6. The attorneys who represented the Dallas County plaintiff-
l



intervenors: Edward B. Cloutman III of the law firm of Mullinax,
Wells, Bdab & Cloutman; amd E. Brice Cunningham.

Q aa ^7. The defendants in this action: Jim Mattox, Attorney
General of the State of Texas; George Bayoud, Secretary of State 
of Texas; the members of the Texas Judicial Districts Board: 
Thomas R. Phillips, Mike McCormick, Ron Chapman, Thomas J. Stovall, 
James F. Clawson, John Cornyn, Robert Blackmon, Sam B. Paxson, 
Weldon Kirk, Jeff Ealker, Ray D. Anderson, Joe Spurlock II, Leonard
E. Davis.

Da* « $
8. The attorneys representing the defendants: Jim Mattox,

Mary F. Keller, Renea Hicks, Javier Guajardo, James Todd of the 
Attorney General's Office of the State of Texas; John L. Hill of 
the law firm of Liddell, Sapp, Zivley, Hill & LaBoon; and David R. 

Richards.
9. The Harris County defendant-intervenor: Judge Sharolyn

Wood.
10. The attorneys representing the Harris County defendant-

intervenor: J. Eugene Clements, John E. O'Neill, Evelyn V. Keyes
of the law firm of Porter & Clements; and Michael J. Wood.

11. The Dallas County defendant-intervenors: Judge Harold 
Entz, Judge Tom Rickoff, Judge Susan D. Reed, Judge John J. Specia, 
Jr. Judge Sid L. Harle, Judge Sharon Macrae, Judge Michael D. 
Pedan.

12. The attorneys representing the Dallas County defendant-
intervenors: Robert H. Mow, David C. Godbey, Bobby M. Ribarts,
Esther R. Rosenbaum of the law firm of Hughes & Luce.

13. The amici in this action: judges: Larry Gist, Loenard
P. Gilbin, Jr., Robert P. Walker, Jack R. King, James M. Farris,

li



STATEMENT REGARDING ORAL ARGUMENT
Plaintiff-intervenor appellees hereby request that this case 

be set for oral argument. This appeal presents several distinct 
and important legal issues. Although the resolution of many of the 
issues on appeal should not be difficult in that they are governed 
by settled Supreme Court and Fifth Circuit precedent, we believe 
that oral argument would be valuable to the Court.

IV



TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS............................. i
STATEMENT REGARDING ORAL ARGUMENT ........................... iv
STATEMENT OF JURISDICTION ....................................
STATEMENT OF ISSUES .........................................  1
STATEMENT OF THE C A S E ..........................   1
STATEMENT OF FACTS .........................................  2

I. Introduction .......................................  2
II. Facts Related to the "Gingles Factors" ..........  7

A. Blacks in Harris County Are Sufficiently
Numerous and Geographically Compact to
Constitute a Majority in a Single
Member District .............................  8

B. Blacks in Harris County are Politically
Cohesive ...................................  9

C. Whites Sufficiently Vote as a Bloc in Harris
County District Judge Elections so as to ;
Defeat the Candidates of Choice of Black
Voters..........................................10
1. The Virtual Refusal of White Voters to

Support Black Candidates ...............  10
2. The Irrelevance of Party Affiliation . . 12

II. Senate Report Factors .............................  15
A. History of Discrimination and Depressed

Socioeconomic Status ......................... 16
B. Racial Polarization in Voting ...............  17
C. The Use of "Enhancing" D e v i c e s ................. 18
D. Racial A p p e a l s ..................................19
F. Minority Electoral Success ................... 20
G. Tenuousness ....................................21

SUMMARY OF THE ARGUMENT........................................22
A R G U M E N T ....................................................2 3

V



I. The Defendants' Attempt to Distinguish Harris 
County Judicial Elections From Those Elections 
to Which Section 2 Apply, Rests on
Fundamentally Erroneous Factual and Legal Arguments 23
A. Section 2 of the Voting Rights Act Applies to

Elected Trial Judges ......................... 23
B. District Judges in Harris County are Elected

At-Large..................................... 25
II. The District Court Correctly Applied the Totality

of the Circumstances Test as Described in Gingles . 27
A. The District Court Applied the Correct 

Standards to its Analysis of White Bloc
Voting in Harris County ..................... 28
1. The Standard for Interpreting

Statistical Analyses of Racially
Polarized Voting ....................... 28

2. Causation is Irrelevant to a
Determination of Polarized Voting . . . .  31

3. The Particular Salience of Elections 
Involving Both Black and White
Candidates ................................ 31

B. The District Court's Findings on White Bloc
Voting in Harris County ..................... 32
1. The District Court was not Persuaded by 

the Defendants' Claims Regarding the 
Role of Party Affiliation................. 33
a. In Fact, Party Affiliation Does Not 

Explain Why Blacks are Not Elected 
as District Judges in Harris
County............................. 3 3

b. As a Matter of Law, the Defendants'
Contentions are Inaccurate ........  36

2. Appellants' Claims Regarding the Role of 
Bar Polls, Endorsements and Similar 
Factors Is Irrelevant as a Matter of Law 37

3. The District Court Properly Limited its
Review to Elections Involving Black and 
White Candidates.......................38

4. The District Court Properly Found that 
the Underlying Data Set Used by the 
Experts for the Plaintiff-intervenors

vi



and the Defendants in Harris County 
is Reliable............................. 39

III. The District Court Properly Assessed Minority 
Electoral Success in Harris County District 
Judge Elections................................ 4 0

CONCLUSION..................................................42

vii



TABLE OF AUTHORITIES
CASES

Anderson v. City of Bessemer City, N.C., 470 U.S.
564 (1985)....................................... 27

Bazemore v. Friday, 478 U.S. 385, 404 (1986)......... 37
Brewer v. Ham, 876 F.2d 448, 452 (5th Cir. 1989)..... 19
Brooks v. Georgia State Board of Elections, Civ. Ac.

No. 288-146 (S.D. Ga. Dec. 1, 1989)......... 23, 26
Butts v. City of New York, 779 F.2d 141 (2d Cir.

1985), cert, denied. 478 U.S. 1021 (1986) .....  23
Campos v. City of Baytown, 840 F.2d 1240, (5th Cir.

1988), cert, denied, 109 S.Ct.
3213 (1989) ........  19, 20, 21, 27, 28, 30, 31, 38

Chisom v. Edwards, 839 F.2d 1056 (5th Cir.
1988)...................................  19, 22, 23

. Citizens for a Better Gretna v. City of Gretna, 834 
F.2d 496, 504 (5th Cir. 1987), cert denied,
109 S.Ct. 3213 (1989)............... 26, 27, 30, 31

City of Carrollton Branch of the NAACP v. Stallings, 829 
F.2d 1547 (11th Cir. 1987) cert, denied 
108 S.Ct. 1111 (1988)................ ............ 24

City of Richmond v. J.A. Croson Co., 488 U.S. 
102 L. Ed.2d 854 (1989)................

Clark v. Edwards, Civ. Ac. No 88-435-A
(Aug. 31, 1988).........................

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

40

23

23
Gingles v. Edminsten, 590 F. Supp. (E.D.N.C. 1984)....28 
Martin v. Allain, 658 F. Supp 1183 (S.D. Miss. 1987)..23 
SCLC v. Siegelman, 714 F. Supp. 511 (M.D. Ala.

1989)........................................ 23, 24
Smith v. Allwright, 321 U.S. 649 (1944)..............  36
Thornburg v. Gingles, 478 U.S. 30 (1986) 3, 4, 6, 10,

.................  19, 20,21, 26, 27, 28, 30, 31, 34
Un. Latin Amer. Cit. v. Midland Ind. Sch. Dist,'

viii



812 F.2d 1494 (5th Cir. 1987), vacated on other 
grounds. 829 F.2d 546 (5th Cir. 1987)........... 30

Wards Cove Packing Company, Inc. v. Atonio, 
104 L. Ed.2d (1989)..................

490 U.S. ____,
......... 40

Westwego Citizens for Better Government v. City
of Westwego, 872 F.2d 1201
(5th Cir. 1989)........................ 20, 27, 31

Whitcomb v. Chavis, 403 U.S. 124 (1971).......... 34, 35
STATUTES, CONSTITUTIONAL PROVISIONS 

Art. 5, Section 7 (a)i of the Texas Constitution..... 18
42 U.S.C. § 14 (C) (1) (1973) ..........................22
42 U.S.C. §1973 .......................................  1
Rule 52(a)............................................ 38
S.Rep. No. 97-417, 97th Cong.

2d Sess. 28-9 (1982)........  12, 14, 20, 31, 32, 36
28 U.S.C. § 1291,..................................  viii
Title VII,...........................................  41
Voting Rights Act of 1965......................1, 11, 35



STATEMENT OF JURISDICTION
This Court's jurisdiction is invoked pursuant to 28 U.S.C. § 

1291. The district court entered judgment in favor of all 
plaintiffs on November 14, 1989 and issued an injunction on January 
11, 1990. Defendant-appellants filed notices of appeal on January 

11, 1990.

x



(1) Whether the district court's holding that district judge 
elections in Harris County, Texas violate Section 2 of the 
Voting Rights Act of 1965, as amended, is clearly erroneous 
and should be reversed?

STATEMENT OF THE CASE
Plaintiff-intervenors in this case are Black registered 

voters residing in Harris County, Texas, and the Houston Lawyers' 
Association ("HLA plaintiff-intervenors") an organization of Black 
attorneys based in Houston. They contend that the at large system 
of electing district judges in Harris County denies Black voters 
the opportunity to elect the candidates of their choice to the 
state district judiciary, in violation of section 2 of the Voting 
Rights Act of 1965 as amended, 42 U.S.C. § 1973.

HLA plaintiff-intervenors incorporate the Statement of the 
Case set out in the Brief of the State Appellants, with respect to 
the "Course of Proceedings and Disposition in the Court Below" 
only. The HLA plaintif f-intervenors set out the Statement of Facts 

below.

STATEMENT OF ISSUES

STATEMENT OF FACTS
I. Introduction

District judges in Texas are elected in at large elections 
from areas, which in accordance with the Texas Constitution as 
amended in 1985, may be no smaller than an entire county. Slip 
Op. at 7. District judges have jurisdiction over cases arising

1



anywhere in the county, and venue over each case is countywide. 
District judges are therefore accountable to every citizen of the 
county. TR. at 5-78. Because district judges are elected from the 
entire county rather than from geographic subdistricts within the 
county, the system for electing district judges in Texas, is an at 
large system. Slip Op. at 7, n.3.

Harris County, with a total population of 2,409,544, is the 
largest county by population in the State of Texas. Slip Op. at
14. Although Blacks comprise 19.7% of the total population, and 
18.2% of the voting age population in Harris County, id., only 
three of the 59 district judges (or 5.1%) currently serving Harris 
County are Black. TR. at 4-262. Since 1980, only 2 of the 17 
Blacks who have run for District judge in Harris County in 
contested elections have been elected. Slip Op. at 73.

District court judges must be nominated in a primary election 
by a majority of the votes cast. Slip Op. at 7. Each candidate's 
political party is indicated on the ballot. Id. District judges 
run for specifically numbered judicial seats. This is the 
equivalent to a numbered post system, which prevents the use of 
bullet, or single shot voting.1 Slip Op. at 71 n.31.

Candidates for District judge must be citizens of the United 
States and the State of Texas, licensed to practice law in this 
State and a practicing lawyer or Judge of a court in Texas, or both *

"Single-shot voting enables a minority group to win some 
at-large seats if it concentrates its vote behind a limited number 
of candidates and if the vote of the majority is divided among a 
number of candidates." Thornburg v. Gingles, 478 U.S. 30, 38 n. 
5 quoting City of Rome v. United States. 446 U.S. 156, 184 n. 19 
(1980).

2



combined for four years. Slip Op. at 7. Candidates must have been 
a resident of the county from which they run for at least two years 
and reside in that county during their term of election. Id.

District courts in Harris County have been organized by 
informal arrangements into four specialized areas: civil trial 
courts, criminal trial courts, juvenile courts and family law 
courts. See Deposition Summary of Ray Hardy, TR. at 4-254. Of the 
three Blacks who currently serve as district judges in Harris 
County, two are criminal trial court judges, and one is a family 
law judge. No Black has ever been elected to a civil district 
trial seat. TR. at 3-207.

II. Facts Related to the "Ginoles Factors"

In Thornburg v. Ginales. 478 U.S. 30 (1986), the Supreme
Court identified three critical elements of a section 2 challenge 
to the use of at large election districts:

First, the minority group must be able to demonstrate 
that it is sufficiently large and geographically compact 
to constitute a majority in a single-member 
district...Second, the minority group must be able to 
show that it is politically cohesive...Third, the 
minority must be able to demonstrate that the white 
majority votes sufficiently as a bloc to enable it —  in 
the absence of special circumstances, such as the 
minority candidate running unopposed,...—  usually to 
defeat the minority's preferred candidate. Ginales. 478 
U.S. at 50-51.

The district court's findings relevant to the three-pronged test 
in Thornburg v. Ginales. 478 U.S. 30 (1986) (hereinafter "Ginales")

3



are set out below.

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

The district court found that Black residents in Harris County 
are concentrated in the North Central, Central and South Central 
areas of the county, and found that it is possible to create 
majority Black single-member districts. Slip Op. at 15. HLA 
plaintiff-intervenors' expert, Mr. Jerry Wilson, showed that 
thirteen such electoral districts could be drawn.2 TR. at 3-229- 
233; See also HLA plaintiff-intervenors' Exhibit 2, 2(a). His
testimony was not disputed at trial.3

Mr. Wilson testified that Blacks in Harris County live in 
highly concentrated majority Black areas, particularly in the City 
of Houston. In fact, Mr. Wilson's demographic analysis revealed 
that nearly 80% of all Blacks live in 94 majority Black Census 
tracts in Harris County. TR. at 3-235-236. Several lay witnesses 
also testified that Harris County has traditionally been and 
continues to be, residentially segregated. See. Deposition Summary 
of Judge Thomas Routt, TR. at 3-207; Testimony of Weldon Berry, TR. 

at 4-16-17.

2 The LULAC plaintiffs introduced undisputed evidence at 
trial that at least nine single member electoral districts with a 
majority Black voting age population could be drawn in Harris 
County. Slip Op. at 15.

Although the district court recognized that the concept 
of "one person, one vote" does not apply to judicial electoral 
districts (Slip Op. at 15) , both the illustrative single-member 
district plans submitted by the plaintiffs and the plaintiff- 
intervenors for Harris County contemplated the creation of "ideal 
districts" of approximately equal populations in accordance with 
the "one person, one vote" principle. See. Slip Op. at 15.

4



No evidence was introduced at trial to rebut the testimony of 
either the expert or lay witnesses for the HLA plaintiff- 
intervenors, that Blacks in Harris County are sufficiently large 
and geographically compact so as to constitute a majority in a 
single member district.

B. Blacks in Harris County are Politically Cohesive

Based on the uncontradicted evidence introduced at trial, the 
district court found that Blacks in Harris County are politically 
cohesive. This finding was based on the results of the election 
analyses of experts for both the HLA plaintiff-intervenors and the 
defendants. In crediting the conclusions reached by the HLA 
plaintiff-intervenors' expert, that voting in Harris County is 
racially polarized and that Blacks are politically cohesive, the 
Court noted that an inquiry into racially polarized voting helps 
ascertain whether the minority group members challenging an 
electoral scheme are politically cohesive. Slip Op. at 22, quoting 
Ginoles. The Court's findings on the existence of racially 
polarized voting will be discussed at length below.

In concluding that Blacks in Harris County are politically 
cohesive, the district court additionally relied on the credible 
testimony of Black former district judge candidates and prominent 
members of the Harris County Black community. Slip Op. at 30. The 
court specifically credited the lay testimony of witnesses Sheila 
Jackson Lee, Thomas Routt, Weldon Berry, Francis Williams and 
Bonnie Fitch, who testified about their experiences as candidates 
and voters in Harris County. Id.

5



No evidence was introduced at trial to contradict the 
testimony of these witnesses. In fact, expert witnesses for the 
defendant and defendant-intervenors also testified that Black 
voters in Harris County are politically cohesive. See. TR. at 5- 

268.
C. Whites Sufficiently Vote as a Bloc vote in Harris

County District Judge Elections so as to Defeat the 
Candidates of Choice of Black Voters

The district court found that "the Anglo of white bloc vote 
in Harris County is sufficiently strong to generally defeat the 
choice of the Black community." Slip Op. at 30. This finding was 
based on the testimony of all of the experts. Slip Op. at 22-

32 .
"Statistical analyses are the common methodology employed and 

accepted to prove the existence of political cohesiveness apd’ 
racial bloc voting necessary to establish a voter dilution case." 
Slip Op. at 7-8. The Court found the statistical evidence 
presented by the HLA plaintiff-intervenors in Harris County to be 
"legally competent and highly probative." Slip Op. at 87.

1. The Virtual Refusal of White Voters to Support 
Black Candidates

HLA plaintiff-intervenors1 expert, Dr. Richard Engstrom, whose 
work on quantitative analyses was cited with approval by the 
Supreme Court in Ginoles. 478 U.S. at 53, n. 20, performed both
homogenous precinct analysis and bivariate ecological regression 
analysis on the seventeen (17) contested district judge general 
elections in which a Black candidate faced a White opponent since

6



1980.4 Dr. Delbert Taebel, expert for the defendant-intervenors, 
analyzed 23 district judge elections and 11 county court at law 
elections in Harris County. The elections analyzed by Dr. Taebel 
included elections in which Hispanic candidates ran against White 
opponents,5 unopposed elections, and elections in which both 
candidates were White. In accordance with the law of this Circuit, 
the district court found that "unopposed election contests and 
White versus White contents [we]re not germane" to its analysis of 
White bloc voting. Slip Op. at 81.

Despite the differences in the elections analyzed by the 
experts for the HLA plaintiff-intervenors and the defendant- 
intervenors, the results of both experts' analyses were strikingly

4 Dr. Engstrom did not analyze primary elections, because 
primary elections do not involve the entire electorate in Harris 
County (TR. at 3-72; 130), and have not been the filter for the 
candidate of choice of Black voters in Harris County. TR. at 3- 
130-132. See also 5-260. The district court credited Dr. 
Engstrom's testimony in this regard. Slip Op. at 27.

Defendant-intervenor Wood attacked Dr. Engstrom's 
analysis on the ground that his data did not allocate absentee 
votes and did not include the Asian-American population in Harris 
County. Dr. Engstrom testified that absentee votes are not 
allocated by precinct in Harris County, and that in any case, 
absentee votes never rose above 10% prior to 1988 (in 1988 absentee 
votes in judicial elections rose to approximately 13.6% per 
precinct, Slip Op. at 27). Furthermore, Dr. Engstrom testified 
that Asian-Americans are included in the non-Black population 
indicated in his homogenous precinct analysis. See Slip Op. at 96- 
97, Appendix A. Defendant-intervenor Wood presented no evidence 
indicating the size of the Asian-American population in Harris 
County, or its impact on voting. The district court found that Dr. 
Engstrom adequately addressed defendant-intervenor Wood's concerns. 
Slip Op. at 27.

No claims on behalf of Hispanic voters in Harris County 
were advanced by LULAC plaintiffs or by the HLA plaintiff- 
intervenors in this action.

7



similar.6 Blacks and Whites voted differently in every election 
analyzed by both Dr. Engstrom and Dr. Taebel. Slip Op. at 32.

The district court found that Dr. Engstrom's regression 
analysis showed a strong relationship between race and voting 
patterns in Harris County. Slip Op. at 23. In 16 of the 17 
outcome determinative elections analyzed by Dr. Engstrom, Black 
voters supported the Black candidate. See. Slip Op. at 96-97, 
Appendix A. In each of those elections, the candidate supported 
by Black voters lost. See. Slip Op. at 98-100. Dr. Engstrom
testified that the probability that these election outcomes 
occurred by chance were less than 1 in 10,000. Slip Op. at 24. 
The district court found that Dr. Engstrom's homogenous precinct 
analysis corroborated the results of his regression analysis. Slip 
Op. at 26. It showed that Black voters in Harris County gave more 
than 96% of their votes to the Black candidate in 16 ' of 17 
elections. Slip Op. at 26.

Lay testimony from witnesses for the HLA plaintiff- 
intervenors supported the conclusions of Dr. Engstrom. Judge 
Thomas Routt7, one of the three currently sitting Black district 
judges in Harris County, testified that in district judge elections

Both HLA plaintiff-intervenors' and defendant- 
intervenors1 experts used the same underlying data set to perform 
their statistical analyses. This data set, provided by Dr. Richard 
Murray, a University of Houston political scientist provided an 
estimation of the ethnic make-up of the electoral precincts in 
Harris County from 1982 to 1988. Defendant-intervenors raised 
questions as to the authenticity and accuracy of this data, see 
Brief of Defendant-intervenor Wood at 7, n.7, even though their
own expert Dr. Taebel used the same data for his analysis, and at 
trial personally vouched for both the authenticity and reliability 
of Dr. Murray's data. TR. at 5-276-277.

Judge Routt was called as witness for deposition by 
defendant-intervenor Wood.

8



in which a Black candidate faces a White opponent, Blacks will vote 
for the Black candidate and Whites will vote for the White 
candidate. See. Deposition Summary of Thomas Routt, TR. at 3-206.

2. The Irrelevance of Party Affiliation

The defendants contended that the absolute disparity in Black 
and White voting and candidate success patterns should be ascribed 
to party affiliation. This issue was fully ventilated at trial and 
rejected by the district court.

Judge Mark Davidson, a sitting district judge from Harris County 
first elected in 1988, who is White, testified that he analyzes the 
results of judicial elections as a hobby’.8 Slip Op. at 30. He 
conceded that voting in Harris County is racially polarized, 
however he contended that political party and not race determines 
the outcome of elections* in Harris County. TR. at 3-318.9 Dr. 
Taebel also testified that voting in Harris County is racially 
polarized, but attributed the loss of Black candidates to partisan 
politics. TR. at 5-268.

HLA plaintiff-intervenors' expert Dr. Engstrom testified 
however, that even when elections results within one party are

Judge Davidson testified for defendant-intervenor Wood 
as an expert.

Judge Davidson identified Blacks as straight ticket 
Democratic voters. He identified both Republican voters and swing 
voters as white. TR. at 3-331; 338. Judge Davidson testified that 
white swing voters control the outcome of elections in Harris 
County. TR. at 3-338.

9



analyzed, a gross disparity exists between the success rates of 
White and Black candidates. For instance, since 1980, 52% of White 
Democratic candidates have won contested district judge elections, 
while only 12.5 % of Black Democratic candidates have been
successful in District judge elections. TR. at 3-134-135. It was 
further revealed through both lay and expert testimony that even 
in years in which the defendants contend Democratic or Republican 
candidates were "swept" into office by a straight top of the 
ticket vote, Black candidates from the prevailing political party 
persistently fared worse than their White counterparts. TR. at 3- 
139. In 1986 for example, Gov. Mark White, a Democratic candidate 
at the top of the ticket, won the majority of the vote in Harris 
County.10 * Every White Democratic incumbent judge wae reelected. 
However, every Black Democratic incumbent judge lost his or her 
reelection bid.11 Tr*. at 3-164. See also. Slip Op. at 98-100,

9

Appendix A. Dr. Engstrom concluded that race, not party, is the 
primary determinant of the outcome of district judge elections in 
Harris County. TR. at 3-140.

The district court was unpersuaded by the defendants' claim 
that partisan preference and not race best explains the outcome of 
district judge elections in Harris County. Instead, the Court

In this general election, Democrats won 14 of the 20 
contested countywide judicial seats up for election. TR. at 3- 
139.

Two of the incumbent Black judges, Francis Williams and 
Bonnie Fitch, were county court at law judges. Weldon Berry was 
the incumbent district judge. Although defendants contended that 
the Black incumbents had been in office for relatively shorter 
periods of time than their white incumbent counterparts and thus 
lacked comparable name recognition, Judge Berry had been in office 
for a year and one half, almost the entire term. TR. at 4-15. All 
three Black incumbents had been appointed to office.

10



found that once plaintiffs, as in this case, have proved the first 
two prongs of the Ginqles test, and the Senate factors point to 
vote dilution, it is unimportant whether a White bloc vote, which 
is sufficient usually to defeat the minority's preferred candidate 
is made up of Democrats or Republicans. Slip Op. at 79-80.

The district court was similarly unpersuaded by defendant- 
intervenor Wood's claim that in those elections in which partisan 
voting could not explain the loss of Black candidates, bad 
publicity, failure to win the Houston Bar Association Preference 
Poll12, or failure to obtain the endorsement of the Gay Political 
Caucus ("GPC") explained the loss of Black candidates. Slip Op. 
at 31. Dr. Taebel, expert for the defendants, conceded at trial 
that attempting to analyze the role campaign expenditures, 
incumbency and Bar Poll results had on whether a candidate won or 
lost would be an impossible task. TR. at 5-274.

II. Senate Report Factors

The Senate Report that accompanied the 1982 amendments to 
section 2 of the Voting Rights Act identified nine "[t]ypical 
factors" which tend to establish a vote dilution claim.13 S.Rep. * 1

In 1986, the year of the Democratic near sweep, Frances 
Williams, a Black Democratic appointed incumbent county court at 
law judge, won the Houston Bar Association preference poll, but 
still failed in his reelection bid, along with the two other Black 
Democratic incumbent candidates.

v3 "Typical factors include:
1. the extent of any history of official discrimination in 

the state or political subdivision that touched the right of the
11



No. 97-417, 97th Cong. 2d Sess. 28-9 (1982) (hereinafter "Senate 
Report") .14

The court below found that an analysis of "the Senate Factors 
applicable to the present case point to the continual effects of

members of the minority group to register, to vote, or otherwise 
to participate in the democratic process;

2. the extent to which voting in the elections of the state 
or political subdivision is racially polarized;

3. the extent to which the state or political subdivision 
has used unusually large election districts, majority vote 
requirements, anti-single shot provisions, or other voting 
practices or procedures that may enhance the opportunity for 
discrimination against the minority group;

4. if there is a candidate slating process, whether the 
members of the minority group have been denied access to that 
process;

5. the extent to which members of the minority group in the 
state or political subdivision bear the effects of discrimination 
in such areas as education, employment and health, which hinder 
their ability to participate effectively in the political process;

•

6. whether political campaigns have been characterized by 
over or subtle racial appeals;

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

Additional factors that in some cases have had probative value 
as part of plaintiff's evidence to establish a violation are:

whether there is a significant lack of responsiveness on 
the part of elected officials to the particularized needs of 
the members of the minority group.

whether the policy underlying the state or political 
subdivision's use of such voting qualification, prerequisite 
to voting, or standard, practice or procedure is tenuous."

S. Rep. at 28-29.
Congress did not intend that these factors be used as a 

mechanical "point counting" device. S. Rep. at 29, n. 118. 
Therefore, only those Senate factors relevant to this case will be 
discussed in this section.

The Supreme Court has specifically recognized the Senate 
Report as the "authoritative source for legislative intent" in 
interpreting amended section 2. Ginales. 478 U.S. at 43, n.7.

12



historical discrimination hindering the ability of minorities to 
participate in the political process." Slip Op. at 79. The Court 
also detailed specific findings related to each Senate Factor, 
discussed below.

A. History of Discrimination and Depressed 
Socioeconomic Status

The district court, citing a long line of cases from this 
Circuit dating from 1974 to the present, found that the history of 
discrimination against Blacks in the areas of education, employment 
and health in all of the counties at issue in this case "is either 
well chronicled or undisputed." Slip Op. at 69-70. The Court 
further found that this history of discrimination adversely 
affected the socioeconomic condition of Blacks in the challenged 
counties and inhibited their ability to participate in the 
democratic system governing the State of Texas. Slip Op. at 70. 
This finding was supported by evidence of stark socioeconomic 
disparities between Blacks and Whites residing in Harris County. 
See Plaintiffs' Exhibit H-08.

Lay witnesses for the HLA plaintiff-intervenors also testified 
that Harris County has a history of discrimination that continues 
to effect rights of Blacks today. One witness, Judge Thomas Routt, 
one of the three currently sitting Black district judges in Harris 
County, testified that there is more racial prejudice today in the 
County than when he first sought judicial office during the 1970's. 
See. Deposition Summary of Thomas Routt, TR. at 205. Francis 
Williams, a Black former appointed County Court at Law judge 
testified that when he first began practicing law in 1951, the 
Houston Bar Association refused to admit Blacks. See, Deposition

13



Summary of Francis Williams, TR. at 3-217. This prohibition, 
according to Mr. Williams, was part of the Houston Bar 
Association's Constitution. Id. See also. Testimony of Weldon 
Berry, TR. at 4-8 ;4-16-17;4-24-25.

B. Racial Polarization in Voting
The district court's findings on the existence of racially 

polarized voting in Harris County district judge elections have 
been discussed at length above.

C. The Use of "Enhancing" Devices
The Senate Report specifically identifies unusually large 

elections districts, majority vote requirements and anti-single 
shot provisions^ as practices which "may enhance the opportunity 
for discrimination against the minority group". S. Rep. at 29. 
The district court found that each of these practices are part of 
the district judge electoral scheme in Harris County, Texas. Slip 
Op. at 71-72.

The Court found that the requirement that district judge 
candidates run for a specific numbered judicial seat within the 
county, is equivalent to a numbered post system, which prevents 
the use of bullet, or single shot, voting. Slip Op. at 71; 71, n. 
31. The Court further found that in order to win the party primary 
a candidate for district judge must win a majority of the votes 
cast.15 Id.

The Eighth Circuit recently held that a majority 
vote/primary run-off requirement for municipal elections in 
Phillips County, Arkansas violates section 2 of the Voting Rights 
Act. See, Whitfield v. Clinton. Civ. Ac. No. 88-1953 (8th Cir.

14



Finally, the court found that the unusually large size of 
Harris County "further enhance[s] the problems that minority 
candidates face when they seek office." Slip Op. at 72. Thomas 
Phillips, Chief Justice of the Supreme Court of Texas, testified 
that it is more difficult for minority lawyers to raise the funds 
necessary to a mount a successful campaign for district judge in 
large urban areas, such as Harris County. TR. at 5-84.

D. Racial Appeals
The court below made no findings regarding the use of racial 

appeals in judicial campaigns in Harris County. However, several 
witnesses testified that race continues to play a prominent role 
in judicial campaigns in Harris County.16

Dec. 7, 1989).
Former appointed county court at law judge Bonnie Fitch-, 

for example, testified that she vas the victim of racial appeals 
in both her 1986 and her 1988 judicial election bids. In 1988, Ms. 
Fitch testified that her opponent published literature with her 
picture on it. See. Deposition Summary of Bonnie Fitch, TR. at 3- 
209. Ms. Fitch also testified that she received a call from a 
female voter who wanted to know if the fair-skinned Ms. Fitch were 
Black or White, because, as this voter explained, she could not 
vote for a Black person. Id. at 3-211. Ms. Fitch also noted that 
of the nineteen Democratic incumbent judges who appeared in a group 
photograph on campaign literature in 1986, only the three Blacks 
who appeared in the picture failed to win their reelection bids. 
Id. at TR. 3-209.

Harris County district judge Thomas Routt testified that his 
name assisted him in his election bid, because it does not sound 
like a typical Black name. See. Deposition Summary of Thomas 
Routt, TR. at 3-206. According to Judge Routt, names which can be 
clearly identified as minority names can work against a candidate. 
Id. at 3-207.

Similarly former appointed district judge Weldon Berry 
testified that Black candidates enjoy greater electoral success if 
they are not racially identifiable during the campaign. TR. at 4- 
21. Former judge Berry specifically pointed to the successful 
campaign of judge Ken Hoyt, who withheld his photograph from 
certain Republican party campaign literature during his campaign 
for judge on the Civil Court of Appeals. TR. at 4-21.

15



F. Minority Electoral Success
Although Blacks make up 19.7% of the total population, and 

18.2% of the voting age population in Harris County, only 3 of 
Harris County's 59 district judges (or 5.1%) are Black. Slip Op. 
at — . It was undisputed that no more than three Blacks have ever 
served as district judge at the same time in Harris County. See. 
Deposition Summary of Thomas Routt, TR. at 3-207.

The defendants and defendant-intervenors argued that the 
appropriate reference point for evaluating the extent of Black 
electoral success in Harris County however, is the eligible pool 
of minority lawyers, rather than eligible minority voters.17

The district court found that the appropriate reference for 
calculating minority electoral success in voting rights cases is 
eligible minority voters, Slip Op. at 74-75, noting that even if. 
there is a relationship between the number of minority judges and 
the number of eligible minority lawyers, "that fact does not 
explain why well qualified eligible minority lawyers lose judicial 
elections." Slip Op. at 75.

The district court also found that only 2 of the seventeen 
Black candidates (or 12%) who ran in contested district judge 
general elections in Harris County since 1980 won. Slip Op. at 
73. The district court found that in the primary elections

In support of this contention, the defendants offered the 
testimony of expert James Alan Dyer, who conducted a poll to 
determine the number of Black attorneys in Harris County who are 
eligible to serve as district judges. Despite the defendants' 
contention that the small number of minority judges is related to 
the small number of Black eligible attorneys, the poll commissioned 
by the defendants' revealed that there are over 500 qualified Black 
attorneys residing in Harris County, who are eligible to serve as 
district judges. See Defendants' Exhibit D-4, Table Four.

16



analyzed by the defendants' expert, the Black preferred candidate 
won six of the nine primaries, but each Black preferred candidate 
who won the primary, lost the general election. Slip Op. at 32.

17



G. Tenuousness
Chief Justice Thomas Phillips, a defendant in this action, 

testified at trial that Art. 5, Section 7 (a)i of the Texas 
Constitution was enacted in 1985 as part of a broader effort to 
equalize the dockets of district judges. TR. at 5-78. Judicial 
caseload is dependent on the number of cases before the judge and 
not the size of the district. Justice Phillips was unable to 
explain how mandating a countywide election system would further 
the stated goal of equalizing judicial dockets.

Although the district court did not find that the current at 
large system of electing district judges was a tenuously based 
pretext for intentional discrimination, it was "not persuaded that 
the reasons offered for its continuation are compelling." Slip Op. 
at 77.

SUMMARY OF THE ARGUMENT
The district court properly held that the at-large method of 

electing district judges in Harris County, Texas violates section 
2 of the Voting Rights Act in that it denies Black voters an equal 
opportunity to participate in the political process and elect 
candidates of their choice to the Texas judiciary. The court's 
findings were not clearly erroneous.

In evaluating a section 2 claim, plaintiffs are required to 
make a three-part threshold showing. Thornburg v. Gingles. 478 
U.S 30, 50-51 (1986). See also. Brewer v. Ham. 876 F.2d 448, 452 
(5th Cir. 1989); Campos v. City of Baytown. 840 F.2d 1240, 1244 
(5th Cir. 1988), cert. denied, 109 S.Ct. 3213 (1989). HLA 
plaintiff-intervenors satisfied this three-pronged test by showing:

18



that the Black population in Harris County is sufficiently large 
and geographically compact to constitute a majority in a fairly 
drawn single-member judicial district; that Blacks in Harris County 
are politically cohesive; and that Whites in Harris County vote 
sufficiently as a bloc so as to usually defeat the candidate of 
choice of Black voters, absent special circumstances.

The district court did not err in finding that voting in 
Harris County is racially polarized in district judge elections. 
The court's findings are well supported by the record in this case. 
Racially polarized voting is usually proven by statistical evidence 
of racial voting patterns in relevant elections. Campos. 840 F.2d 
at 1243. In the instant case, the district court relied on 
overwhelming statistical evidence which showed that Black voters 
are politically cohesive. The statistical evidence showed that 
Black and White voters vote differently in elections involving 
Black and White candidates: White voters support the white 
candidate, and Black voters support the Black candidate. This 
polarization results in a pattern of loss for Black candidates in 
Black on White judicial election contests.

Elections involving Black and White candidates are most 
probative of racially polarized voting. Westweqo Citizens for 
Better Government v. City of Westweao. 872 F.2d 1201, 1208 n. 7 
(5th Cir. 1989) . The district court properly accorded great weight 
to the results of these elections.

The Voting Rights Act requires a court to look at the totality 
of the circumstances in evaluating a section 2 claim. Once a 
plaintiff meets the Gincles three-pronged test, impermissible vote 
dilution is shown. Evidence of the objective Senate Report Factors

19



buttresses the plaintiffs' showing that a section 2 violation 
exists. Plaintiffs are not required to prove all of the Senate 
Factors, nor should the Senate Factors be used as a mechanical 
point-counting device. S. Rep. at 29 n. 118. With regard to the 
Senate Factors, the court below found that: Texas and Harris 
County have a history of discrimination that continues to effect 
the socioeconomic condition of Blacks; voting in Harris County is 
racially polarized; district judge elections in Texas are 
characterized by three devices, including a numbered post system 
which tend to enhance the opportunity for discrimination against 
minority groups; and Blacks have enjoyed little electoral success 
in district judge elections in Harris County. The court's findings 
regarding Black electoral success in Harris County were properly 
based on the eligible Black voter population.

The court below properly concluded that race, not party is the 
primary determinant of election outcomes in judicial elections in 
Harris County. This Circuit follows the view that the reasons why 
white voters refuse to support Black candidates is irrelevant to 
a section 2 inquiry. See. e.a .. Campos, 840 F.2d. 1240 (5th Cir. 
1988) . Claims of non-racial reasons for the loss of Black 
candidates are entitled to little probative weight once, as in this 
case, plaintiffs have satisfied the three-pronged Ginqles test and 
the Senate Report factors point toward the existence of vote 
dilution.

20



ARGUMENT

I. The Defendants Attempt to Distinguish Harris County 
Judicial Elections From Those Elections to Which 
Section 2 Apply, Rests on Fundamentally Erroneous Factual 
and Legal Arguments

A. Section 2 of the Voting Rights Act applies to 
elected trial judges

The defendants argue that this Circuit's decision in Chisom 
was limited to elections for appellate court judges, or judges who 
sit, like legislators, on collegial decisionmaking bodies. See, 
Brief of Defendant-Appellees at 17-18. Nothing in this Circuit's 
decision in Chisom supports the defendants' strained 
interpretation. See. Chisom v. Edwards. 839 F.2d 1056 (5th Cir. 
1988) , rehearing and rehearing en banc denied, Chisom v. Roemer 
853 F. 2d 1186 (5th Cir. 1988), cert, denied, 102 L. Ed.2d 379 

(1988) .
Chisom follows the example set by the Supreme Court of giving 

the Voting Rights Act "'the broadest possible scope' in combatting 
racial discrimination." Chisom. 839 F.2d 1056, 1059. In
interpreting the scope of the Voting Rights Act, this Circuit 
correctly focused on its plain language, which states that its 
provisions are meant to include voting in "any primary, special, 
or general election... with respect to candidates for public or 
party office..." Chisom. 839 F.2d at 1060, quoting 42 U.S.C. § 18

18 Chief Justice Phillips testified that district judges in 
Texas, in fact, do engage in some collegial decision-making in 
administrative areas such as: choosing county auditors; 
promulgating local rules of procedure; assigning jury panels; and 
deciding how a jury panel is to be drawn. TR. at 5-81.

21



1973 1 (c)(1)(1965). "Nowhere in the language of Section 2 nor in 
the legislative history does Congress condition the applicability 
of Section 2 on the function performed by an elected official." 
Dillard v. Crenshaw. 831 F.2d 246, 250 (11th Cir. 1987).

The Chisom panel specifically acknowledged the difference 
between the "representative" functions performed by legislators, 
and the role of judges in administering the law, but adopted the 
view of the Martin v. Allain court that "Section 2 is not 
restricted to legislative representatives but denotes anyone 
selected or chosen by popular election from among a field of 
candidates... including judges". 839 F.2d at 1063, quoting Martin 
v. Allain. 658 F. Supp 1183 , 1200 (S.D. Miss. 1987). This court
never suggested that any rationale exists for limiting the scope 
of Section 2 to only certain kinds of elected judges. In fact,, 
the Chisom court's reliance on Martin. a challenge to the at large 
election of circuit and chancery trial judges in Mississippi, 
indicates that this Circuit recognized the application of Section 

2 to the election of trial judges.
Section 2 has been applied to the election of trial judges in 

challenges throughout the country. Clark v. Edwards, Civ. Ac. No. 
88-435-A (M.D. La. Aug. 31, 1988); Brooks v. Georgia State Board 
of Elections. Civ. Ac. No. 288-146 (S.D. Ga. Dec. 1, 1989), SCLC 
v. Siegelman. 714 F. Supp. 511 (M.D. Ala. 1989)

B. District Judges in Harris County are Elected 
At-Large

The defendants contend that each numbered post within the 
countywide election district in Texas is, in essence, its own

22



single member district. See Brief of State Defendants at 17-20; 
Brief of Defendant-intervenor Wood at 22-24. This characterization 
of the Texas judicial electoral scheme is blatantly wrong. As the 
District Court found, the requirement that district judges in Texas 
run for a specific numbered seat within the countywide or multi­
county district "is the equivalent of a numbered post system" 
which prevents the use of bullet, or single shot, voting. Slip Op. 

at 71.
Judges in multijudge districts and circuits do not hold 

single-member offices. SCLC v. Sieqelman, 714 F. Supp. 511 
(M.D.Ala. 1989). A single-member office is one in which "only one 
individual hold[s] [the] office in the geographic area, i.e., ... 
there is only one such office in the particular jurisdiction." Id. 
at 518 n. 17. By contrast, fifty-nine (59) judges are elected to 
serve within Harris County. Although candidates are required to 
run for a numbered judicial post, e.q., "152nd Civil District 
Court," these numbers do not correspond to different geographical 
areas of election or jurisdiction, nor do they correspond to 
different judicial offices in which unique duties are performed.19

19 As defendant-intervenor Wood points out, "each judge is 
elected by...every citizen in the county;...each judge has 
jurisdiction over cases arising anywhere in the county;...venue 
over each case is county-wide..." Brief of Defendant-intervenor 
Wood at 22.

The defendant's reliance on the Second Circuit's decision in 
Butts v. City of New York, 779 F.2d 141 (2d Cir. 1985) , cert. 
denied. 478 U.S. 1021 (1986) is also misguided. In Butts, 
plaintiffs challenged New York City's 40%vote/primary run-off 
requirement for single—member officers elected citywide. The 
offices at issue —  mayor, city council president and comptroller - 
- were single person offices. Only one person was elected to each 
office, and each officer performed unique duties particular to that 
office only. As discussed above, district judges in Harris County

23



The same group of voters elects judges to every numbered district
court in the county. "[Bjecause judges are elected from the entire
county rather than from geographic subdistricts within the county,"
this is an at large election system. Slip Op. at 7 n.3.

Texas' numbered post method of electing district judges
therefore, enhances the dilutive nature of the at large election
scheme. The use of an "enhancing device" specifically identified
in the Senate Report, like a numbered post system, cannot be used
as defense in a vote dilution case. The numbered post, at large
scheme for electing district judges in Texas, is similar to the
system of electing superior court judges in the state of Georgia,
where state officials were recently ordered by a federal court to
preclear all past changes in judicial elections in accordance with
Section 5 of, the Voting Rights Act. In that case, the court
described Georgia's numbered post judicial electoral scheme as

"hav[ing] the potential for discrimination. Where 
more than one judicial post exists in a given circuit, 
these election rules require a candidate to run for 
a specific seat. Georgia law thus precludes the 
alternative system where all candidates compete against 
each other and where judgeships are awarded to the 
highest vote-getters out of the field of candidates.

One effect of precluding the latter form of 
election is to prevent effective 'single-shot' voting.
In a 'single-shot' campaign, a cohesive bloc of 
minority voters agrees to vote for only one candidate 
out of a group of candidates running for office, even 
though two or more office holders will be elected out 
of the group of candidates running.

do not perform unique functions. Moreover, some courts have 
recently applied section 2 to single—member offices. See e. c. , 
City of Carrollton Branch of the NAACP v. Stallings, 829 F.2d 1547 
(11th Cir. 1987) (applying Section 2 to election for single-member 
county commission) , cert. denied 108 S.Ct. 1111 (1988) ; Dillard v. 
Crenshaw Countv. 831 F.2d 246, 250 (11th Cir. 1987) (applying 
Section 2 to election for chairman of county commission).

24



Brooks v. Georgia State Board of Elections. Civ. Ac. No. 288-146, 
(S.D. Ga. Dec. 1, 1989) Slip Op. at 16. The system for electing 
district judges in Harris County has the same effect.

II. The District Court Correctly Applied the Totality of 
the Circumstances Test as Described in Ginqles

"The clearly-erroneous test of Rule 52(a) is the appropriate 
standard for appellate review of a finding of vote dilution". 
Ginales. 478 U.S. at 79. Trial courts evaluating a statutory claim 
of vote dilution engage in an intensely factual inquiry, based 
"upon a searching practical evaluation of the 'past and present 
reality'". Id. The reviewing court therefore, must defer to the 
local district judge's "particular familiarity with the indigenous
political reality" of the State. Id. See also Citizens for_a
Better Gretna v. City of Gretna. 834 F.2d 496, 504 (5th Cir. 1987) 
(recognizing district court's familiarity with political realities 

of local area).
The defendants challenging the district court's finding of 

vote dilution bear a heavy burden of showing that the district 
court made fundamental legal and factual errors. It is not enough 
that the defendants, or even this court, would have found the facts 
differently. This court remains bound by the clearly erroneous 
standard. Under this standard, this court may rule that the 
district court's findings are clearly erroneous only if " on th 
entire evidence [this court] is left with the definite and firm

25



Campos v. City ofconviction that a mistake has been committed."
Bavtovn. 840 F.2d at 1243, quoting Anderson v. City of Bessemer 
Citv. N.C. . 470 US 564, 573 (1985). Nothing in the district 
court's opinion in this case, is clearly erroneous.

The district court, in the case at hand, properly applied the 
"totality of the circumstances" test. The court's 94 page opinion, 
reflects a careful review of the typical objective factors 
enumerated in the Senate Report, and a proper application of the 
three-pronged Ginales analysis to Texas' district judge electoral 
scheme. The court correctly concluded, as a result of this 
analysis, that the at large system of electing district judges in 
Harris County, Texas denies Black voters an equal opportunity to 
elect the candidates of their choice to the judiciary.

A. The District Court Applied the Correct Standards to 
its Analysis of White Bloc Voting in Harris 
Countv ______________________________ ____

1. The Standard for Interpreting Statistical 
Analyses of Racially Polarized Voting

Racially polarized voting "is the linchpin of a section 2 vote 
dilution claim. Westweqo Citzens for a Better Government v. City 
of Westwego, 872 F.2d 1201, 1207 (5th Cir. 1989) quoting Citizens 
for a Better Gretna v. Citv of Gretna. 834 F.2d 496, 499 (5th Cir. 
1987), cert denied. 109 S.Ct. 3213 (1989). Ginales and this
Circuit's post-Gingles decisions20 have set out well-defined

20 See, Campos v. Citv of Bavtown. 840 F.2d 1240; Westwego 
Citizens for Better Government v. Citv of Westwego, 872 F.2d 1201 
(5th Cir. 1989) ; Citizens for a Better Gretna v. City of Gretna, 
834 F.2d 496 (5th Cir. 1987), cert denied, 109 S.Ct. 3213 (1989).

26



standards for determining the existence of racial bloc voting, 
which is "usually proven by statistical evidence." Campos v. City 
of Bavtown. 840 F.2d 1240, 1243 (5th Cir. 1988).

In Ginoles. the court reviewed election analyses prepared by 
the expert for the appellees which to showed the racial differences 
in candidate preferences among white and Black voters in the 
challenged North Carolina jurisdiction. The experts in Gingles 
employed two complementary methods of analysis which are standard 
in the literature for the analysis of racially polarized voting. 
Gingles, 478 U.S. at 53 n. 20, citing Gingles v. Edminsten, 590 F. 
Supp. (E.D.N.C. 1984) at 367-378, nn. 28 and 32. These methods of 
analysis —  extreme case (or homogenous precinct) analysis and 
bivariate ecological regression analysis —  show differences in 
candidate preferences among White and Black voters.21

These standard methods for determining the existence of bloc 
voting "incorporate neither causation nor intent" for purposes of 
section 2. Gingles, 478 U.S. at 62. In accordance with Congress' 
intention to return to the pre-Mobile v. Bolden "results" or

21 "Extreme case analysis relies on a selected part of the 
group to predict behavior of whole group. In an election context, 
if you can find a precinct that is overwhelmingly one group, then 
you can peform the extreme case analysis. For example, if you have 
a precinct that is 100% Black and that precinct votes 80% for 
candidate A, then you can extrapolate that 80% of all of the Blacks 
voted for candidate A." Campos. 840 F.2d at 1246-1247 n. 10.

A regression analysis expresses the degree of 
relationship between two variablees. The two variables are the 
proportion of the of the voting age population that is Black (the 
independent variable) and the electoral support _ for the Black 
candidate (the dependent variable). "There is a positive 
relationship between these two variables if the percentage of votes 
supporting a black candidate tends to increase as _ the black 
percentage of the voting age population in the precinct increases." 
Gretna, 834 F.2d at 499 n. 7.

27



"effects" test, "the reasons black and white voters vote 
differently have no relevance .to the central inquiry of §2." 
Ginales. 478 U.S. at 62. Instead the court's focus should center 
on the race and candidate selection differences. Id. Justice 
Brennan, in addressing the appellants' argument in Gingles that 
factors other than race, like party affiliation, may explain the 
difference in candidate selection among white and Black voters, 
cautions that such considerations under section 2 "would thwart the 
goals Congress sought to achieve when it amended §2 and would 
prevent courts from performing the "functional" analysis of the 

political process..." Id.
Justice O'Connor disagrees with Justice Brennan's reasoning 

on this point.22 She concludes that, "[e]vidence that a candidate 
preferred by the minority group in a particular election was 
rejected by white voters for reasons other than those which made 
that candidate the preferred choice of the minority group would 
seem clearly relevant" to the reviewing court's analysis.23 478 
U.S. at 100. "Such evidence would suggest that another candidate, 
equally preferred by the minority group, might be able to attract 
greater white support in future elections." Id.

22 Justice O'Connor nevertheless concurs in the Court's 
unanimous decision that the District Court in Gingles did not err 
in determining that the other factors presented in Gingles to 
explain voter behavior, such as campaign expenditures, name 
identification and education, were insufficient to overcome the 
clear evidence of vote dilution in violation of Section 2.

23 According to Justice O'Connor, when statistical evidence 
of racially polarized voting is used for the limited purpose of 
proving that the minority group is politically cohesive, and "to 
assess its prospects for electoral success," defendants may not 
then rebut this showing by pointing to causes other than race which 
might explain a racial divergence in voting patters. 478 U.S. at 
100.

28



Justice White, while not expressly disagreeing with Justice 
Brennan's views on the irrelevance of causation, strongly disagrees 
with Justice Brennan's view that the race of the voter and not the 
candidate is relevant in statistical election analysis. 478 U.S. 

at 33.
This conflict within the Supreme Court regarding the relevance 

of causation and the race of the candidate in polarized voting, has 
been resolved in this Court. In a trilogy of cases, this Court has 
established well-developed standards for interpreting statisticasl 
analyses of racially polarized voting.

2. Causation is Irrelevant to a Determination of 
Polarized Voting

This Court has followed Justice Brennan's view that "the 
reasons black and white voters vote differently have no relevance 
to the central inquiry of § 2." In every case affirming the 
presence of a discriminatory election scheme, this Circuit has 
upheld the district court's findings based on the use of bivariate 
regression analysis. See e.a.. Campos. 840 F.2d 1240 (5th Cir. 

1988); Gretna. 834 F.2d 496 (5th Cir. 1987).
The kind of multivariate analysis advanced by the defendants 

in this case, in which a different excuse can be invoked to explain 
the loss of Black candidates in any number of elections, by its 
very nature obfuscates the relevant question —  whether the use of 
a contested electoral practice results in Blacks having less 
opportunity than other members of the electorate to elect 
candidates of their choice. Ginqles, 478 U.S. at 55. See also, 
Un. Latin Amer. Cit. v. Midland Ind. Sch. Dist, 812 F.2d 1494 (5th

29



Cir. 1987) ("Multivariate regression analysis is open-ended and 
confusing"), vacated on other grounds. 829 F.2d 546 (5th Cir. 

1987) .
This circuit, following the example set by the Supreme Court 

in Ginales.24 evaluates the existence of White bloc voting based on 
statistical evidence of racial voting patterns. Campos. 840 F.2d 
at 1243. Reliance on the standard statistical methods employed in 
vote dilution cases properly maintains the trial court’s focus on 
the difference between the choices made by Black and White voters, 
not the reason for the difference. Ginales, 478 U.S. at 63.

3. The Particular Salience of Elections Involving Both 
Black and White Candidates

In Ginales. both the district court and the Supreme Court 
relied on the results of the experts' statistical, analysis 
concerning voter behavior in elections in which a Black voter faced 
a white opponent. See. 478 U.S. at 52. Examination of such 
elections, in which "blacks strongly supported black candidates 
while. . . whites rarely did, satisfactorily addresses each facet 
of the proper legal standard." Id. at 61. Five Justices found the 
presence of a black candidate so important in determining bloc 
voting that they suggested that only elections involving black and 
white candidates can be probative.25 See id. at 83, 101.

24 As the court below noted, "the issue of partisan voting 
was before the Supreme Court in Ginales. The Court had no 
difficulty concluding that voting [was] polarized along racial, not 
partisan, lines." Slip Op. at 80.

25 This court has noted that "[t]he various Ginales 
concurring and dissenting opinions do not consider evidence of 
elections in which only whites were candidates. Hence, neither do

30



Acknowledging that only a plurality of the Supreme Court found 
the race of the candidate unimportant, this Circuit has affirmed 
that "the evidence most probative or racially polarized voting must 
be drawn from elections including both black and white candidates," 
since "evidence of black support for white candidates in an all- 
white field...tells us nothing about the tendency of white bloc 
voting to defeat black candidates." Westwego, 872 F.2d at 1208 
n. 7, citing Citizens for a Better Gretna v. City of Gretna, 834 
F.2d 496 (5th Cir. 1987) . See also. Campos v. City of Baytown, 840 
F.2d, 1240, 1245 ("district court was warranted in its focus on
those races that had a minority member as a candidate").

Finally, the importance of elections involving Black and white 
candidates directly relates to the Senate Report's explicit 
identification of "minority electoral success" within the 
challenged jurisdiction as a probative factor in finding a 
violation of section 2. S. Rep. No 97-417 at 29.

B. The District Court's Findings on White Bloc Voting 
in Harris County

1. The District Court was not Persuaded by the
Appellants' Claims Regarding the Role of Party 
Affiliation

The crux of the defendants' entire appeal is that party 
affiliation, not race is the reason that Black candidates are not 
elected in district judge races. This contention is wrong both as 
a matter of fact and law. The District Court rejected the 
defendant's contention on both grounds. The Court instead found 
the results of the HLA plaintiff-intervenors' expert's analysis of 
racially polarized voting in Harris County to be "legally competent

we." Gretna 834 F.2d at 504; see also Campos. 840 F.2d at 1245.
31



and highly probative." Slip Op. at 87.

a. In Fact, Party Affiliation Does Not Explain Why Blacks are 
Not Elected as District Judges in Harris County

Dr. Engstrom, the expert for the HLA plaintiff-intervenors, 
who performed both extreme case analysis and bivariate regression 
analysis concluded, and the district court agreed, that "the Anglo 
or white bloc vote in Harris county is sufficiently strong to 
generally defeat the choice of the Black community." Slip Op. at 
30. Dr. Engstrom further concluded that race, not party, is the 
primary determinant of the outcome of district judge elections in 

Harris County. TR. at 3-140.
The district court noted that Dr. Engstrom's conclusions were 

based on his analysis of 17 contested district judge general 
elections in which Black candidates faced white opponents. Sl’ip 
Op. at 23-25. In 16 of these 17 elections, Black voters supported 
the Black candidate. In each of these instances, the Black 
candidate lost the election, never receiving more than 40% of the 
white vote. See. Slip Op. at 96-97, Appendix A. The court 
acknowledged Dr. Engstrom's testimony that the likelihood that the 
strong correlation between race and voting patterns present in 
Harris County occurred by chance, were less than 1 in 10,000. Slip 

Op. at 24.
Defendant-intervenor Wood argues that the District Court 

"excluded from consideration" evidence presented by the defendant 
parties, that factors other than race, like political party, 
explain the racial divergence in candidate preferences in judicial 
elections in Harris County. Brief of Defendant-intervenor Wood at

32



34. This is simply not true. The court below considered 
defendant-intervenors' arguments in this regard, but found them 
unpersuasive and insufficient to rebut the strong evidence of 
racially polarized voting presented by HLA plaintiff-intervenors' 
expert, and conceded by the defendants' own expert. Slip Op. at 
30-32; 79-80.

The District Court "rejects the State Defendants' argument 
that there can be no 'functional view of the political process' 
without taking into account political party as the principal factor 
affecting" partisan judicial elections. Slip Op. at 89. Instead 
the court takes the view that "it is unimportant whether a white 
bloc vote, which is sufficient...usually to defeat the minority's 
preferred candidate" is made up of Democrats or Republicans, once 
the first two elements of Ginales have been proven and the Senate 
factors point to vote dilution.26 Slip Op. at 79-80. The evidence 
in the record supports the court's opinion.

On its own terms the defendants' argument fails to persuade. 
HLA plaintiff-intervenors' expert, Dr. Engstrom, observed that 
gross disparties exist in success rates among white and Black 
candidates, even within the Democratic party. Dr. Engstrom 
testified that 52% of white Democratic candidates won contested 
district judge elections in Harris County from 1980 to 1988, while 
only 12.5% of Black Democratic judicial candidates were simililarly 
successful. TR. at 3-134-135. Dr. Engstrom further noted that 
Black district judge candidates consistently fell in the bottom

Judge Mark Davidson testified that the Republican and 
swing votes which decide the outcome of Harris County judicial 
elections, are1cast by White voters. TR. at 3-331; 338.

33



half of vote getters among all Democratic judicial candidates 
between 1980 and 1988. TR. at 3-135. This testimony was 
corroborated by Judge Davidson. TR. at 3-342.

Finally, the defendant and defendant-intervenors' 
interpretation of the nearly twenty year old decision in Whitcomb 
v. Chavis. 403 U.S. 124 (1971) as analogous to the instant case is 
mistaken. Whitcomb is clearly distinguishable from the case at 
hand. As the court below explained,

In Whitcomb, the Supreme Court rejected a racial vote 
diluation challenge to an at-large system for electing 
state legislators, essentially on the ground that 
partisan preference best accounted for electoral 
outcomes in Marion County, Indiana. The Court in 
Whitcomb concluded that there was no indication in 
the record of that case that Blacks were being 
denied access to the political system.

Slip Op. at 78-79. The Supreme Court's reversal in Whitcomb was 
based, in large part, on evidence in the record that black and 
white Democrats were equally unable to be elected in the challenged 
jurisdictions. Because there was no disparity in candidate success 
of Black and white voters within the Democratic party, the Court 

asked:
"But are poor Negroes of the ghetto any more 
underrepresented than poor ghetto whites who 
also voted Democratic and lost, or any more 
discriminated against than other interest 
groups or voters in Marion County with 
allegiance to the Democratic Party, or, conversely, 
any less represented than Republican areas 
or voters in years of Republican defeat?

403 U.S. at 154. This question is not applicable to Harris County 
where a clear disparity exists between the success rates of Black 
and white candidates, even within the same party.

34



In 1986, for example, when former Governor Mark White, at the 
top of the ticket, led the majority of Democratic judicial 
candidates to victory, all white incumbent Democratic judges were 
reelected, while all the Black incumbent Democratic judges lost.27

Similarly, in 1982, when Democratic Sen Lloyd Bentsen and Gov. 
Mark White were at the top of the ticket 12 of 13 White Democratic 
candidates were elected while only one of the four Black Democratic 
judicial candidates lost. See. Slip Op. at 98-100, Appendix A. 
The only Black Democratic candidate to win in that election, was 
Thomas Routt, an appointed incumbent. Judge Routt, garnering only 
51.3% of the vote despite his incumbency, barely beat out his 
opponent, a white virtual unknown. TR. at 3-162-163; TR. at 3- 

329.

b. As a Matter of Law, the Defendants' Contentions 
are Inaccurate

If the defendants' interpretation of the role of party 
affiliation were adopted, discriminatory electoral systems using 
partisan elections effectively would be immunized from section 2 
attack. This result is entirely at odds with Congress' intent in 

amending section 2.
The Voting Rights Act was designed to eliminate a "broad array 

of dilution schemes," including those practices insulated within 
the political party structure. S.Rep. at 6. The discriminatory

270ne of the incumbent Black judges who lost that year 
testified that in her opinion, the Black incumbents were hurt by 
the distribution of a Democratic Party campaign mailing, which 
included a group photograph of all of the incumbent Democratic 
judicial candidates. This campaign literature was mailed to voters 
througout the county. See. Deposition Summary of Bonnie Fitch, TR. 
at 3-209.

35



effect of such practices on the ability of Blacks to participate 
in the political process, such as the Texas Democratic party's use 
of an all white primary, is undisputed. See Smith v. Allwriaht, 

321 U.S. 649 (1944).

2. Appellants' Claims Regarding the Role of
Bar Polls, Endorsements and Similar Factors 
Is Irrelevant as a Matter of Law

As an alternative to their argument that party affiliation 
and not race, explains the divergence in the success of Black and 
white candidates in Harris County, defendant-intervenor Wood 
introduced a barrage of hypothetical, unscientifically applied 
explanations for why Black candidates lost elections. These 
explanations included, but were not limited to: failure to win the
Houston Bar Poll, lack of campaign funds, negative campaign 
publicity, and failure to obtain endorsements. The District Court 
found this argument "legally incompetent." Slip Op. at 31.

The district court's decision in this regard as well, is 
supported by the record. Defendant-intervenor Wood failed to 
demonstrate any consistent pattern in applying these factors to 
various elections.28 The Supreme Court has found that the type of 
inconsistent, unscientifically applied explanation for racial 
disparities offered by defendant-intervenor Wood are entitled to 
little or no probative weight. Bazemore v. Friday, 478 U.S. 385, 
404 (1986). Defendant-intervenor Wood "declare[s] simply that many 
factors" affect the outcome of judicial elections; "they made no

Defendant-intervenor Wood also failed to present any 
testimony or evidence that voters are aware of Bar Poll results, 
or that they rely on the Bar Poll in making candidate selections.

36



attempt... —  statistical or otherwise —  to demonstrate that when 
these factors were properly organized and accounted for there was 
no significant disparity" between the electoral success rates of 
White and Black candidates. Id. at 404, n. 14.

The defendants' own expert, Dr. Taebel, concluded that 
attempting to analyze the impact of campaign expenditures, 
incumbency and Bar Poll results on election results would be an 
impossible task. TR. at 5-274. See also TR. at 3-346. Moreover, 
defendant-intervenor Wood failed to prove that these factors 
function independently of the race of candidates in Harris County.29

Again, even on its own terms, the defendant-intervenor's 
argument fails. In 1986, for example, Francis Williams, a Black 
Democratic candidate for a countywide judicial seat who was an 
appointed incumbent, who won the Houston Bar Association Preference 
Poll. Although Democrats won the overwhelming number of contested 
judicial seats up for election that year, Francis Williams lost. 

TR. at 3-327.
The district court properly concluded that the defendant- 

intervenor failed to present legally competent evidence which would 
alter the Court's findings on the existence of white bloc voting 

in Harris County.

3. The District Court Properly Limited its Review to 
to Elections Involving Black and White Candidates

The court below found that the "[d]efendants' lead expert,

29 For example Black candidates may have more difficulty 
raising campaign funds than Whites. TR. at 457.

37



Dr. Taebel reviewed many election contests which the Fifth Circuit 
determined are not germane to voter dilution cases." Slip Op. at 
90, citing Campos v. City of Bavtown. 840 F.2d 1240, 1245 (5th cir. 
1988) .

In Harris County, these elections included races in which 
Hispanic candidates faced white opponents, although no claim on 
behalf of Hispanic voters was advanced by either the LULAC 
plaintiffs or the HLA plaintiff-intervenors. In fact, more than 
half of the elections analyzed by Dr. Taebel for Harris County were 
races involving Hispanic and white candidates. TR. at 5-255. Dr. 
Taebel also analyzed races between white candidates.

These election analyses cannot tell the court anything about 
how the white bloc vote in Harris County affects the success rate 
of Black candidates. Dr. Taebel's analysis of these irrelevant 
elections was particularly unnecessary, in light of the fact that 
17 contested district judge elections from 1980 to 1988 were 

available.

4. The District Court Properly Found that the 
Underlying Data Set Used by the Experts for 
the HLA Plaintiff-intervenors and the Defendants 
in Harris County is Reliable

In accordance with Rule 52(a), this court should properly 
defer to the district court's finding of fact regarding the 
reliability of the data set used by the expert for the HLA 
plaintiff-intervenors and the defendant for their analysis of 
Harris County elections. Slip Op. at 31. The District Court found 
this data set to be reliable. Slip Op. at 27.

38



Defendant-intervenor Wood objected to the use of this data, 
nothwithstanding their own expert's reliance on it. The data at 
issue, provided by University of Houston political scientist Dr. 
Richard Murray, provides an estimate of the racial make-up of 
voting precincts in Harris County. Data describing the ethnic 
breakdown of election precincts is generally used by experts in 
performing quantitative analyses for voting patterns, such as 
homogenous precinct and bivariate ecological regression analyses. 
TR. at 3-72. Defendant-intervenor Wood argued that this data set 
was unreliable and unautheniticated.

Dr. Engstrom, the expert for the HLA plaintiff-intervenors, 
testified that he communicated with Dr. Murray on several 
occasions, and performed his own check of the data tables provided 
by Dr. Murray. TR. at 3-70-72. Based on his communications with 
Dr. Murray, his independent check of the data and his own 
experience using data tables of this nature, Dr. Engstrom found the 
tables provided by Dr. Murray to be reliable. See TR. at 3-70-72; 
3-137.

Despite defendant-intervenor Wood's objection to the data set, 
the defendants' expert, Dr. Delbert Taebel, also used Dr. Murray's 
data tables for his analysis of Harris County. At trial, Dr. 
Taebel attested to both the reliability and the authenticity of the 

data. TR. at 5-276-277.

39



Based on the testimony of both the HLA plaintiff-intervenors' 
and the defendants' experts, the district court properly found that 
this underlying data set was reliable.

III. The District Court Properly Assessed Minority 
Electoral Success in Harris County District 
Judge Elections

The district court found that the relevant statistical pool 
for evaluating the extent the minority electoral success in this 
case is the pool of eligible minority voters. Slip Op. at 74-75. 
The defendants' argue that the appropriate reference point for 
evaluating the extent of Black electoral success in Harris County 
is the eligible pool of minority lawyers, rather than the pool of 
eligible minority voters. In support of this argument, the
defendant parties rely on the Supreme Court's holdings in City of
Richmond v. J.A. Croson Co.. 488 U.S. ____, 102 L. Ed.2d 854 (1989)
and Wards Cove Packing Company. Inc, v. Atonio, 490 U.S. ____, 104
L. Ed.2d (1989). This argument reflects the defendants' 
fundamental misunderstanding of section 2 law, and of the basic 
principles underlying the amended Voting Rights Act.

The rights protected under the Voting Rights Act are not the 
rights of minority lawyers to be elected as judges, but the right 
of minority voters. To properly assess if an electoral system 
denies minorities an equal opportunity to participate in the 
electoral process therefore, a reviewing court must look to the 
rate of minority electoral success in relation to the percentage 
of eligible minority voters in the challenged jurisdiction. If the 
defendants' argument were followed, in cases challenging 
discriminatory election schemes for legislative offices, courts 
would look to the pool of qualified legislative candidates —  that

40



is, registered voters who meet the age and residency requirements 
that many jurisdictions impose on candidates for legislative 
office. No court in any jurisdiction in the country has evaluated 
the extent of minority legislative success, using such a 
statistical pool in a section 2 case.

Finally, in Harris County, where qualified Black lawyers have 
run in every district judge election since 19 8 0,30 the defendants 
argument does not explain why these qualified applicants cannot win 
contested elections against White candidates. As the district 
court succinctly put it "even if there is some relationship 
between the low number of minority judges and the number of 
eligible minority lawyers, that fact does not explain why well 
qualified eligible minority lawyers lose judicial elections." Slip 

Op. at 75.
CONCLUSION

Based on the compelling evidence in the record, and in 
accordance with the relevant law, the district court properly found 
that the current at-large system of electing district judges in 
Harris County denies Black voters an equal opportunity to 
participate in the electoral process, in violation of section 2 of

30 Defendants' poll showed that there are over 500 Black 
attorneys qualified to serve as district judges residing in Harris 
County. See Defendants' Exhibit 4, Table 4.

41



CERTIFICATE OF SERVICE
I hereby certify that on this 27th day of February, 1990 a 

true and correct copy of Brief for Plaintiff Intervenor-Appellees 
Houston Lawyers Association, et al . was mailed to counsel of record 
in this case by first class United States mail, postage pre-paid, 
as follows:

William L. Garrett 
Brenda Hall Thompson 
Garrett, Thompson & Chang 
8300 Douglas, Suite 800 
Dallas, TX 75225
Rolando L. Rios 
Southwest Voter Registration 

and Education Project 
201 North St. Mary's Street 
Suite 521
San Antonio, TX 78205
Susan Finkelstein 
Texas Rural Legal Aid, Inc. 
201 North St. Mary's Street 
Suite 600
San Antonio, TX 78205
Edward B. Cloutman, III 
Mullinax, Wells, Baab & 

Cloutman, P.C.
3301 Elm Street 
Dallas, TX 75226-9222

J. Eugene Clements
John E. O'Neill
Evelyn V. Keyes
Porter & Clements
700 Louisiana, Suite 3500
Houston, TX 77002-2730
Michael J. Wood 
Attorney at Law 
440 Louisiana, Suite 200 
Houston, TX 200
John L. Hill, Jr.
Liddell, Sapp, Zivley, 

Hill St LaBoon 
3300 Texas Commerce Tower 
Houston, TX 77002

David R. Richards 
Special-Counsel 
600 West 7th Street 
Austin, TX 78701



Jim Mattox 
Mary F. Keller 
Renea Hicks 
Javier Guajaro 
Attorney General's Office 
Supreme Court Building 
1401 Colorado Street 
7th Floor
Austin, TX 78701-2548

Seagal V. Wheatley 
Donald R. Philbin, Jr. 
Oppenheimer, Rosenberg,

Kelleher & Wheatley, Inc. 
711 Navarro, Sixth Floor 
San Antonio, TX 78205
E. Brice Cunningham
777 South R.L. Thornton Freeway
Suite 121
Dallas, TX 75203

Robert H. Mow, Jr.
Hughes & Luce 
2800 Momentum Place 
1717 Main Street 
Dallas, TX 75201
Gabrielle K. McDonald 
Matthews & Branscomb 
A Professional Corporation 
301 Congress Avenue 
Suite 2050
Austin, TX 78701
Walter L. Irvin 
5787 South Hampton Road 
Suite 210., Lock Box 122 
Dallas, TX 75232-2255
Ken Oden
Travis County Attorney 
P.0. Box 1748 
Austin, TX 78767

Darrell Smith
10999 Interstate Highway 10 
Suite 905
San Antonio, TX 78230

Tom Rugg
Jefferson County Courthouse 
Beaumont, TX 77701

Mark H. Dettman
P.0. Box 2559
200 West Wall
Midland County Courthouse
2nd Floor
Midland, TX 79702

Hon. Richard Thornburgh 
Attormey General of the 

United States 
United States Department 

of Justice
Main Justice Building 
10th & Pennsylvania 

Avenue, N .W . 
Washington, D.C. 20530

Houston Lawyers' Association, et al.



14

15

16

17
13

19

20

21

23
24

25

26

27

Vol. XIV, p. Ill; Vol. XVI, pp. 
89-90; Govt. Ex. 236.
Vol. XIV, pp. 164-166, 175,
205-206; Vol. XVII, p. 21; 
Govt. Ex. 220-222.
Vol. XIV, pp. 112-116; Vol. 
XVII, p. 21; Vol. XVIII, pp. 4- 
5; Vol. XVIII, p. 87; Vol. XIX, 
pp. 18-19; Govt. Ex. 239, 253.
Govt. Ex. 223.
Vol. XIV, p. 113; Vol. XVI, pp. 
92-94 , 96-97; Vol. XI, p. 2;
Govt. Ex. 424.
Vol XIV, pp. 116-118; Vol XVI, 
pp. 99-100, 146; Govt. Ex. 425.
Vol. XVI, pp. 191-192; Vol.
XVII, pp. 7, 17-20; Vol. XVII, 
pp. 158-166; Vol. XVII, pp. 
191-192; Vol. XVII, pp. 30-32; 
Vol. XVIII, Dp. 15-16; Vol.
XVIII, pp. 111-112; Vol XIX,
pp. 18, 27; Vol. XIX, pp. 48-
49; Govt. Ex. 414.
Vol. XIV , pp. 120-121; Vol.
XVIII, p. 16; Vol. XI, pp. 2-4;
Vol. XIII , pp. 16-17.
Vol. XIV, pp. 149-151.
Vol. 
25.

XIV, pp. 151-153; P. Ex.

Vol. XIV, pp. 122-124, 151-153;
Vol. XVI , 131-182; Vol. XIX, p.
72; Govt. Ex. 239.
Vol. XIV , po. 124-125; Govt.
Ex. 216 , 217,' 213 , 239 .
Vol. XIV , pp. 127, 135-136,
154-•156; Govt. Ex. 239.

- 2 -



28

29

30

31
32

34

35

36

37

38

39

40

41

Vol. XIV, pp. 122, 126-128
130-132; Vol. XIX, pp. 114-115
Vol. XI, p. 177 ; Vol,. XIII, p
99; Govt. Ex. 216, 217, 218
219.
Vol. XIV, p. 129; Govt. Ex
216, 217, 218.
Vol. XIV, p. 129; Govt. Ex
216, 217, 281.
vol. XIV, p. 141; P. Ex. 26.
Vol. XIV, pp. 124, 129-131,
141; Vol. XVI, pp. 152-153,
155; Govt. Ex. 216, 217, 218.
Vol. XIV, pp. 140-145; Vol.
XIX, pp. 193-195; Vol. x, p.
138; Govt. Ex. 415.
Vol. XIV, pp. 145-146; Govt.
Ex. 237.
Vol. XIV, pD. 146-147; Govt.
Ex. 238.
Vol. XIV, op. 146-147; Vol. 
XIX, Dp. 195-196, 171-172, 208- 
211.

Vol. XIX, pD. 210-211; Govt.
Ex. 216, 217, 218.
Vol. XIV, d p . 129-131; Govt.
Ex. 216, p. 20; 217, p. 22;
218, d d . 34-35.
Vol. XIV, pp. 129-130; Vol.
XVI , 
217, P-218.

103; Govt. Ex. 216,

Vol. XIV, pp. 138-140; Vol. XV,
pp. 33-34 , 37-38; Vol. X, p.
137; Vol. XI, p. 29; Govt. Ex.
216, 217, 218 .

-3-



43 Vol. XIV, p. 18 2; Vol. XV, pp. 
33-34; Vol. XIII, pp. 144, 179- 
181; Vol. XI, p. 110.

44 Vol. XV, p. 106; Vol. XVI, pp. 
199-200; Vol. XIX, p. 125; Vol. 
XX, pp. 24-25; Govt. Ex. 216, 
217, 218.

45 Vol. XV, pp. 103-104; Vol. XVI, 
pp. 107-108, 110; Govt. Ex. 
216, 217, 218.

46 Vol. XV, pp. 103-104; Vol. XVI, 
pp. 108-113; Govt. Ex. 216, 
217, 218.

47 Vol. XVI, D. 113; Vol. XVIII, 
pp. 203-204; Vol. XIX, pp. 129- 
130; Vol. XIII, p. 83; Govt. 
Ex. 216, 217, 218.

48 Vol. XVI, pp. 113-114; Govt. 
Ex. 241.

49 Vol. XI, po. 143-144, 150; 
Govt. Ex. 216, 217, 218.

50 Govt. Ex. 216, 217, 218, 240.
51 Vol. XVI, pp. 124-126; Vol. XI, 

p. 71; Govt. Ex. 426.
53 Vol. XIX, pp. 190-193, Vol. 

XIII, p. 196; Govt. Ex. 441 
through 448.

55 Vol XIV, pp. 168-170.
56 Vol. XIV, pp. 212-215.
57 Vol. XIV, pp. 216-224; Vol. XV, 

pp. 14-19 , 24, 26; Vol. XVII, 
pp. 194-196; P. Ex. 72.

58 Vol. XIV, pp. 191-193, 207-208; 
Vol. XVIII, pp. 89-93, 108-109; 
Govt. Ex. 433.

-4-



59

60

61

62

79

80

91
82

83
84

85

87

88

89

90
91

Vol. XV, pp. 111-112; Vol. 
XVIII, pp. 102-108; Govt. Ex. 
435.
Vol. XIV, pp. 166, 170-172;
Vol. XVIII, pp. 177-178, 193-
194, 60; Vol. XVIII, pp. 199-
202; Vol. XIII, pp. 106, 111.
Vol. XIV, pp. 197-200, 210-211; 
Vol. XV, pp. 6-7, 110, 111.
Vol. XIV, pp. 186-189; Vol. XV, 
pp. 12-13.
(See citations for findings 29
30, 23 and 24) .
(See citat ions for findings 2'
and 24) .
Vol. XIV, pp. 46, 49-50.
(See citat ions for findings 21
25, 26) .
(See citat ions for finding 25)
Vol. XV, pp. 68-70; Vol. XVIII
pp. 87-88; Vol. XIX:, pp. 18-19
Vol. VII, PP- 181-182; 'Vol
XIX, p. 71•
Vol. XVI , P- 195 ; Govt. Ex
417.
(See citat ions for f indings 24
25) .
(See citat ions for findings 27
28) .
(See citat ions for f indings 27
28) .
(See citat ions for finding 27)
(See citat ions for f indings 28
32, 39, 40) .

-5-



92 (See citations for findings 27, 
28, 32).

94 Vol. XVII, p. 14; Vol. XVIII, 
pp. 13-14.

95 Vol. XVIII, pp. 74-75; Govt. 
Ex. 298, 433.

96 Vol. XIV, p. 136; Vol. X, p. 
127; Vol. XI, pp. 2-5.

97 Vol. XI, p. 40; Vol. XI, p. 41; 
Vol. XIX, pp. 187, 193; Govt. 
Ex. 417-D.

98 Vol. XI, pp. 21, .32; Vol. XI, 
pp. 34, 42; Govt. Ex. 415.

99 Vol. XI, p. 109; Vol. XVI, pp. 
122-24 , 172-73; Vol. XIV, pp. 
195-96, 209-211; Govt. Ex. 422.

100 (See citation for finding 99).
101 Vol. X, p. 128; Vol. XIX, p. 

210; Govt. Ex. 418-K.
103 Vol. XIX, pp. 175-85; Vol. XX, 

d d . 30-32.
104 Vol. XIX, pp. 184-85.
105 Vol. XI, pp. 31, 46.
106 Vol. XIX, pp. 196-199; Vol. XI, 

p. 54; Gov't. Ex. 417-L, M.
108 Govt. Ex. 417-E.
109 Vol. XI, pp. 87-89 ; Vol. XIX,

pp. 204-06; Govt. Ex. 418-M.
111 Vol. XIX, pp. 207-10.
112 Govt. Ex. 418-M.
113
116

Vol. XI, pp. 28-29.
Vol. XI, pp. 100, 108-10.

-6-



117 Vol. XI, p. no.
119 Vol. XIX, pp. 52-57, 85-86, 82- 

83.
120 Vol. XIX, pp. 69-73.
121 Vol. XI, pp. 144-47; Vol. XIX, 

pp. 58-64, 75-78, 87.
122 Vol. XI, pp. 138-39.
123 Vol. XI, p. 100; Vol. XIX, pp. 

65-69.
125 Vol. XVI, pp. 195-96; Vol. XIX, 

pp. 71-72; Govt. Ex. 428.
126 Vol. XII, pp. 48-50, 97.
127 Vol. XII, d d . 52-54, 83-86, 

101.
129 Vol. XVI, p. 215.
131 Vol. XVI, pp. 187-94, 206; Vol. 

XVII, pp. 18-20.
132 Vol. XVI, pp. 181-86 , 190-96; 

Vol. XVII, pp. 20-21.
133 Vol. XVII, pp. 24-36, 43-45.
134 Vol. XI, pp. 177-79.
135 Vol. XI, P. 16 2; Vol. XVI, pp. 

92-95.
136 Vol. XVII, pp. 78-81 , 128; 

Govt. Ex. 270-3,C,D.
137 Vol. XVII, pp. 59-77, 100-102, 

107-109.
138 Vol. XVII, pp. 76-77, 85-86; P. 

Ex. 68.
139 Vol. XVII, pp. 78, 89-90, 125.

-7-



140 Vol. XVII, pp. 135-39.
141 Vol. XII, pp. 19, 22; Vol. 

XVIII, pp. 15-16; Vol. XVIII, 
pp. 111-112.

142 Vol. XII, pp. 23-26; Vol. 
XVIII, p. 40.

143 Vol. XII, pp. 39-40, 17-18.
144 Vol.

44.
XVIII, pp. 4-10, 13, 39-

145 Vol. XVIII, pp. 10-13, 77-78.
146 Vol. XVIII, pp. 24-25, 65, 151.
147 Vol.

XIV,
XVIII, pp. 80-84; Vol. 

p. 164.
148 Vol. XVIII, pp. 112, 110.
149 Vol.

Vol.
XIII, op. 81-85, 88-89; 
XVIII, pp. 203-206.

150 Vol. XIII, pp. 72-75, 88.
151 Vol. XVIII, pp. 203-206.
152 Vol. 

XII,
PP-292-

XVIII, pp. Ill, 145; Vol. 
pp. 109-110; Vol. XVII, 

16-17, 78; Govt. Ex. 292, 
A.

153 Vol. 
XII,

XVII, pp. 17-21, 65; Vol. 
pp. 114-18.

154 Vol. XII, p. 114; vol. XVIII, 
pp. 21-22; Vol. XVIII, pp. 99- 
101; Vol XVIII, pp. 22-23; Vol. 
XVIII, pp. 101-102; Vol. XII, 
pp. 135-36; Vol. XVIII, pp. 22- 
25, 65; Vol. XVIII, p. 151.

156 Vol.
PP-

XII, p. 122; Vol XVIII, 
25-27.

157 Vol. XVIII, pp. 90-96.

-8-



158 Vol.
XIV,

XVIII, Dp. 106-109; Vol. 
p. 193.

159 Vol. XVIII, pp. 87-89.
160 Vol. XII, p. 178; Vol. XIV, pp. 

158-59; Vol. XVI, pp. 118-22.
161 Vol. XII, p. 153.
163 Vol. XIX, pp. 105-06; Govt. Ex. 

256-A.
164 Vol. XII, p. 167; Govt. Ex. 

256-B.
165 Vol.

XIX,
Govt

XIX, pp. 135-149; Vol. 
pp. 100-103, 120-127; 

. Ex. 256.
166 Vol.

XVII
XIII, pp. 38-39; Vol. 

, pp. 175-79, 184, 214-15.
167 Vol.

37,
XIII, pp. 10-11, 16-13, 

54; Vol. XVII, pp. 171-73.
168 Vol. 

vol. 
Exs.

XIII, pp. 29-30 , 62, 53; 
XVII, pp. 182-95; Govt. 
248, 277-A.

169 Vol. XIII, pp. 118-20.
170 Govt . Exs. 401-402.
171 Vol. XII, p. 99; Govt. Ex. 401.
172 Vol.

136;
Vol.

XIII, pp. 114, 124-27, 
Vol. XVIII, pp. 177-79; 
XVIII, pp. 200-202.

173 Vol. 
Vol .

XVIII, pp. 197 , 202, 208 ; 
XVIII, pp. 173-74, 179.

174 Vol. XIII, pp. 118-19.
175 Vol. XIII, pp. 178-80.
176 Vol.

Vol.
XIII, pp. 170-72, 180; 
XVII, pp. 144-45.

-9-



178 Vol. XIX, DO,. 175-88; Vol. XX,
PP- 30-32; Govt. Exs. 418-
A,B,C,D.

179 Vol. XX, pp. 5-8, 14, 18; Vol.
XVI, pp. 118-19.

180 Vol. XX, pp. 11-13, 18-19; Vol.
XIX, pp. 21-28, 42.

181 Vol. XX, pp. 10-13, 16-18, 19-
21.

183 Vol. XIX, pp. 92-98, 114-16.
186 Vol. XX, pp. 161, 171-73, 185-

88; Govt. Ex. 298.
187 Vol. XX, pp. 168-69; Govt. Ex.

298.
188 Vol. XX, pp. 183, 179.

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