Plaintiffs-Appellees Suggestion for Rehearing En Banc

    GARRETT. THOMPSON, & CHANG 

ATTORNEYS AND COUNSELORS AT Liaw 

8300 DouGLAS AVENUE 

Suite 800 

PrEsTON CENTER 

Darras. TExas 75225 

Fax: (214) 987-0429 

WILLIAM L. GARRETT. P.C. January 25, 1990 214-369-1952 

BRENDA HULL THOMPSON, P.C. 
214-363-1022 

SUE J. CHANG. P.C. 
214-987-0887 

Mr. Gilbert F. Ganucheau ¥/ 

United States Court of Appe 

for the Fifth Circuit 
600 Camp St. > 

New Orleans, LA 70130 a 

    

   Re: No. 90-8014 .. ny SO 
LULAC, et al. Plaintiffg/Appellées’// 

VS. oN : 

JIM MATTOX, et al.,Defendants-Appellants 

  

Dear Mr. Ganucheau: 

Enclosed for filing please find TWENTY copies of Plaintiffs- 

Appellees' LULAC, et al. suggestion for Rehearing En Banc for 

filing in the above referenced case. 

By copy of this letter, all counsel of record are being 

furnished a copy hereof. 

If you have any questions, please advise. 

or 2: lil 

Yours truly, 
N : i £ I il ; 

LO a 
Mm ener er a TY, 

William L. Garrett 4 

WLG. 1k 

Encl. 

cc:YAttorneys of Record 

 



   

IN THE UNITED STATES 
COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

NO. 90-8014 

  

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, ET AL. 

Plaintiffs-Appellees 

VS. 

JIM MATTOX, ET AL. 

Defendants-Appellants 

  

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

  

  

PLAINTIFFS-APPELLEES SUGGESTION FOR REHEARING EN BANC 

  

ROLANDO L. RIOS WILLIAM L. GARRETT SUSAN FINKELSTEIN 

ATTORNEY AT LAW ATTORNEY AT LAW ATTORNEY AT LAW 

201 N. St. Mary's 8300 Douglas Ave. 201 N. St. Mary's 
Suite 521 Suite 800 Suite 600 
San Antonio, TX Dallas, TX San Antonio, TX 
78205 75225 78205 
512/ 222-2102 214/ 369-1952 512/ 222-2478 

ATTORNEYS FOR PLAINTIFF-APPELLEES 

 



IN THE UNITED STATES 
COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

NO. 90-8014 

  

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, ET AL. 

Plaintiffs-Appellees 

VS. 

JIM MATTOX, ET AL. 

Defendants-Appellants 

  

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

  

  

PLAINTIFFS-APPELLEES SUGGESTION FOR REHEARING EN BANC 

  

ROLANDO L. RIOS WILLIAM L. GARRETT SUSAN FINKELSTEIN 

ATTORNEY AT LAW ATTORNEY AT LAW ATTORNEY AT LAW 

201 N. St. Mary's 8300 Douglas Ave. 201 N. St. Mary's 
Suite 521 Suite 800 Suite 600 
San Antonio, TX Dallas, TX San Antonio, TX 
78205 75225 78205 

B512/ 222-2102 214/ 369-1952 512/ 222-2478 

ATTORNEYS FOR PLAINTIFF-APPELLEES  



CERTIFICATE OF INTERESTED PARTIES 
  

NO. 90-8014 

LULAC, et al. vs. JIM MATTOX, et al. 

LOCAL RULE 28.2.1 CERTIFICATE 

The undersigned, counsel of record for LULAC, et al., 
certifies that the following listed parties have an interest in 
the outcome of this case. These representations are made to 
enable Judges of the court to evaluate possible disqualification 
or recusal. 

Plaintiffs: 

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 
Al Price 
Theodore M. Hogrobrooks 
Ernest M. Deckard 

Judge Mary Ellen Hicks 
Rev. James Thomas 

Plaintiff-Intervenors: 

Houston Lawyers' Association 
Alice Bonner 
Weldon Berry 
Francis Williams 
Rev. William Lawson 
DelLoyd T. Parker 
Bennie McGinty 
Jesse Oliver 
Fred Tinsley 
Joan Winn White  



    
Defendants: 

Jim Mattox, Attorney General of Texas 
George Bayoud, Secretary of State 
Texas Judicial Districts Board 

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. Judicial 
Region 

James F. Clawson, Jr., Presiding Judge, 3rd Admin. Judicial 
Region 

John Cornyn, Presiding Judge, 4th Admin. Judicial Region 
Robert Blackmon, Presiding Judge, 5th Admin. Judicial Region 

Paxson, Presiding Judge, 6th Admin. Judicial Region 
Weldon Kirk, Presiding Judge, 7th Admin. Judicial Region 
Jeff Walker, Presiding Judge, 8th Admin. Judicial Region 

Anderson, Presiding Judge, 9th Admin. Judicial Region 
Joe Spurlock II, President, Texas Judicial Council, 

Sam B. 

Ray D. 

Leonard E. Davis 

Defendant-Intervenors: 

Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 

Amicus: 

Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 

Sharolyn Wood 
Harold Entz 

Tom Rickoff 
Susan D. Reed 

John J. Specia, Jr. 
Sid L. Harle 
Sharon Macrae 

Michael D. Pedan 

Larry Gist 
Leonard P. Giblin, Jr. 
Robert P. Walker 
Jack R. KIng 
James M. Farris 
Gary Sanderson 
Mike Bradford 
Patricia R. Lykos 
Donald K. Shipley 
Jay W. Burnett 
Bob Burdette 
Richard W. Millard 
Wyatt W. Heard 
Michael T. McSpadden 
Judge Ted Poe 
Joe Kegans 

ii 

 



    
Judge Scott Brister 
Judge Henry G. Schuble III 
Judge Charles Dean Huckabee 
Judge Woody R. Denson 
Judge Norman R. Lee 
Judge Doug Shaver 
Judge Charles J. Hearn 
Judge David West 
Judge Tony Lindsay 
Judge Louis M. Moore 
Judge Dan Downey 
Judge Bob Robertson 
Judge John D. Montgomery 
Judge Allen J. Daggett 
Judge Robert S. Webb III 
Judge Robert L. Lowry 
Judge Robert B. Baum 
Judge Eric D. Andell 

Plaintiffs' Attorneys: 

William L. Garrett 
Brenda Hull Thompson 
Rolando L. Rios 
Susan Finkelstein 

Plaintiff-Intervenors' Attorneys: 

Edward B. Cloutman III 

E. Brice Cunningham 
Julius L. Chambers 
Sherrilyn A. Ifill 
Gabrielle K. McDonald 

Defendants' Attorneys: 

Jim Mattox 
Mary F. Keller 
Renea Hicks 
Javier Guajardo 

Defendant-Intervenors' Attorneys: 

Robert H. Mow, Jr. 
David C. Godbey 
Bobby M. Ribarts 
Esther R. Rosenbaum 
J. Eugene Clements 

iii 

 



Evelyn V. Keys 
Darrell Smith 
Michael J. Wood 

Amici' Attorneys: 

Seagal V. Wheatley 
Donald R. Philbin, Jr. 
Michael E. Tigar 
Gerald H. Goldstein 
Joel H. Pullen 

Tom Maness 
oe a— 

adh | ie 
William IL. Garrett 
  

Attorney of Record for 
LULAC, et al. 

Plaintiffs-Appellees 

 



LOCAL RULE 35.2.2 STATEMENT OF COUNSEL 

I express a belief, based on a reasoned and studied 
professional judgment, that this appeal involves one or more 
questions of exceptional importance: 

1. Whether it is appropriate to enjoin an election in the 
following circumstances: 

a. The election system has been declared illegal by a 
federal district court, and 

b. The decision declaring the system illegal is on 
appeal, and 

C. A primary election, under the at-large system, will be 
held prior to a decision on the merits by the appellate court, and 

d. Those persons nominated in the primary election will 
proceed to a general election, and 

e. Those elected in the general election will hold office 
for four years, and 

f. In the event that the appellate court affirms the 
district court decision, then the minority will have had their 
votes diluted again. 

2. What is the effect of enjoining the March primary elections 
for district judges pending action by the state legislature or this 
Court. 

, J a) 

William L. Garrett 
Attorney of Record for 

Plaintiffs-Appellees 

  

 



TABLE OF CONTENTS 

ITEM 

Certificate of Interested Parties. 

Statement of Counsel 

Table of Contents. . . '. 

List of Authorities. . . 

Statement of the Issues. 

Statement Of the CasSe. + + + ss 4 vo vo o 

Course of Proceedings and Disposition 
in the Trial Court 

Statement of the Facts 

Argument and Authorities 

SECLAOI Lu is Haile He 0 vie nn a te ain ei 
Whether it 1s appropriate to 
enjoin an election when the 
election system has been declared 
illegal by a district court, and 
the case is on appeal, and a 
primary election is imminent, and 
those persons nominated in the 
primary will proceed to a general 
election and those elected in the 
general election will hold office 
for four years, and in the event 
of an affirmance, the minority 
voters will have their votes 
diluted 

Section TT. vv Mee sv vin vi sive view 
What is the effect of enjoining 
the March primary elections for 
district judges pending action by 
the state legislature or action by 
this Court 

Conclusiol .:viviisie 

Certificate of Service  



   
LIST OF AUTHORITIES 

CASES: 

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

Clark v. Edwards, 725 F. Supp. 285, 306 (N. D. Miss. 1988) 

Decker v. U. S. Department of Labor, 
435 F. Supp. 837, 845 (E. D. Wis. 1980) 

Posada v. Lamb County, Texas, 
716 F. 24-1066 (5th Cir. 1983) 

Reynolds v. Sims, 377 U. 8. 533, 585 (1964) 

State ex rel. Guste v. Lee, 
635 F. Supp. 1107, 1125 (E. D. La.l986) 

STATUTES: 

Voting Rights Act of 1965. 

vii 

 



  

ISSUE 

STATEMENT OF THE ISSUES 

1. Whether it is appropriate to enjoin an 
election when the selection system has been 
declared illegal by a district court, and the 
case is on appeal, and a primary election is 
imminent, and those persons nominated in the 
primary will proceed to a general election and 
those elected in the general election will 
hold office for four years, and in the event 
of an affirmance, the minority voters will 
have their votes diluted. 

2. What is the effect of enjoining the March 
primary elections for district judges pending 
action by the state legislature of this Court. 

PAGE 

 



STATEMENT OF THE CASE 

I. Basis for Jurisdiction in the Trial Court 

The Trial Court had jurisdiction of this case pursuant to 28 

U. S. C. 1343(3) and (4), upon causes of action arising under 42 

Uu. S. C. 1971, 1973, 1983, 1988, and the XIV and XV Amendments to 

the United States Constitution. Relief was sought under 28 U. S. 

C. 2201, 2202, and Rule 57, F. R. C. P, 

II. Basis for Jurisdiction in the Court of Appeals 

This Court has jurisdiction to hear this appeal by virtue of 

28 U. S. C. 1292(a) (1) and 1292(b), in that the decision appealed 

is an order granting an injunction, and is an interlocutory order 

of the United States District Court for the Western District of 

Texas. 

III. Whether the Order is Properly Appealable 

The order appealed from grants an injunction and has been 

certified as immediately appealable under 28 U. S. C. 1292 (b). 

IV. Whether the Appeal is Timely 

Date of entry of interlocutory decree in the district court: 

11-88-89 

Date of granting of injunction: 1-2-90 

Date of notice of appeal was filed: 1-12-90 

Notice of appeal was filed timely pursuant to Federal Rules  



of Appellate Procedure 4 (a) 

V. Attorneys' Fees 

Attorneys' fees will be sought by LULAC, et al., 

Plaintiffs-Appellees, in this appeal pursuant to 42 U. ill 

1973-1(e) and 42 U. S. C. 1988. 

VI. Course of Proceedings and Disposition Below 

The suit was originally filed in July of 1988, on behalf of 

black and Mexican-American organizations and citizens of the State 

of Texas, hereinafter the minority voters, and with allegations 

that the at-large scheme for the election of district judges 

diluted minority voting strength, in violation of the Voting 

Rights Act, 42.U.°S. C. 1973, and in violation of the vu. 8s. 

Constitution, and for attorneys' fees. 

After trial on the merits, the district court entered an 

interlocutory order decreeing the that at large election system in 

use in the subject counties violated the Voting Rights Act, 42 U. 

S.C. 1973. 

By such order, the district court granted the defendants 

until January 3, 1990, to suggest a remedy. Upon being notified by 

the Governor of Texas that such remedy would not be forthcoming, 

the Court received suggested remedies from the parties, and on 

January 2, 1990, entered an order instituting an interim election 

plan which called for non-partisan elections to be held in May, 

1990, with run-offs, if any, in June, 1990. On January 11, 1990,  



   

it amended that order by rescheduling the election dates to 

November and December of 1990. 

The State defendants, and the Defendant-intervenors timely 

filed their Notice of Appeal. 

The State defendants, and the defendant-intervenors requested 

this Court to stay the order of the district court enjoining 

further use of the at large scheme, and instituting an interim 

election plan. 

This Court granted their request on January 11, 1990. 

VII. Statement of the Facts 

Election of district judges in Texas are conducted county 

wide for the total number of judges sitting in the subject county. 

It was this county wide (at large) election scheme that was 

struck down by the district court in its order of November 8, 1989. 

The district court's interim election plan for the 1990 elections 

only called for election in Dallas, Harris, Bexar and Tarrant 

counties by state legislative House districts; in Travis County by 

Justice of the Peace districts, and in Midland, Ector, Lubbock and 

Jefferson counties by County Commissioner districts. 

Since the panel of this Court stayed the district court's 

interim plan, the state defendants have reverted to the original at 

large scheme for election of state district judges. 

Primary elections for district judge are scheduled for March 

13, 1990. Under the order of this court, dated January 11, 1990, 

those elections will go forward under the at large scheme, even 

4 

 



    
though the district court found that this scheme violated the 

Voting Rights Act. 

Judges nominated in the March, 1990, primaries will stand for 

election in the general election in November, 1990. 

Those elected in November, 1990, will hold office for four 

years. 

 



   

ARGUMENT AND AUTHORITIES 

I. 

Whether it is appropriate to enjoin an election when the 
election system has been declared illegal by a district 
court, and the case is on appeal, and a primary election 
is imminent, and those persons nominated in the primary 
will proceed to a general election and those elected in 
the general election will hold office for four years, and 
in the event of an affirmance, the minority voters will 
have their votes diluted. 

Plaintiffs-appellees believe that the question of enjoining an 

election process while a case is on appeal is of exceptional 

importance. As this Court has recognized in Posada v. Lamb County, 

Texas, 716 F. 24 1066 (5th Cir. 1983): 

Encroachments on the exercise of the civil liberties 
secured by the Constitution are barred no less when 
threatened by majority domination of the political organs 
of the state. 

Our deepest concerns are awakened by legislative 
repression of minorities' political participation. 
Trammelling of elective rights by the state's 
representative bodies distorts the processes of consensus 
by muffling - or muting altogether - the voices of the 
less favored. It is a body blow to the body politic. 
Where it appears, it warrants close scrutiny; when it 
exists, it requires a firm judicial response. 

The status of this injunction request is not similar to cases 

previously considered. The panel and the Texas state officials and 

the defendant-intervenors have relied upon Chisom v. Roemer, 853 F. 

2d 1186 (5th Cir. 1988) to support allowing the pending primaries 

to proceed. However, that case relates to a pre-merits issuance of 

an injunction. Here the case has been tried on the merits, and 

specific findings of fact and conclusions of law have been issued 

 



regarding violation of the Voting Rights Act of 1965. 

The case has not reached the status at which request for a 

permanent injunction is appropriate. Thus the reasoning of this 

Court in Posada, supra, wherein this Court refused to grant a 

permanent injunction based upon lack of proof of a threat of 

reversion to illegality, is not applicable. Nor is the test 

enunciated in State ex rel. Guste v. Lee, 635 F. Supp. 1107, 1125 

(E. D. La. 1986) entirely appropriate since it relates to the 

issuance of a permanent injunction, although that test was used by 

the district court in Clark v. Edwards, 725 F. Supp. 285, 306 (N. 

D. Miss. 1988) as guidelines for the issuance of an injunction 

after a hearing on the merits: 

1. Whether plaintiffs have succeeded on the merits; 

2. Whether plaintiffs have an adequate remedy at law; 

3. The public interest; 

4. The balancing of equities. 

The district court in Clark, faced with a similar situation, 

enjoined further use of the at large electoral scheme, and his 

analysis can be utilized here. 

Plaintiffs have succeeded on the merits at the district court 

level. 

Further, plaintiffs have no remedy at law. 

The public interest is served by the conducting of legal and 

constitutional elections. Decker v. U. S. Department of Labor, 435 

F. Supp. 837, 845 (E. D. Wis. 1980) order affirmed and remanded, 

661 F. 2d 598 (7th Cir. 1980). The state can have no legitimate  



interest in continuing an illegal electoral system. Clark v. 

Edwards, 725 F. Supp. 285, 306 (N. D. Miss. 1988). 

Although the Supreme Court in Reynolds v. 8ims, 377 U. S. 533, 

585 (1964) has held that unusual circumstances (imminent election 

and state's electoral machinery already in progress; mechanics and 

complexities of state's election laws; disruption of the election 

process from precipitate changes) may prevent the granting of an 

injunction in situations in which the electoral system has been 

declared illegal, these unusual circumstances did not exist at the 

time of the declaration of illegality in this case, and, they do 

not exist now. 

Plaintiffs are not requesting a permanent injunction; rather, 

they are requesting the March, 1990, primaries be enjoined until 

after the state legislature has had an opportunity to present a 

remedy to the district court.' In the event that the legislature 

fails to act, then this Court, after a full consideration of the 

merits, may remand to the district court for implementation of an 

interim election plan. A permanent election system is still the 

task of the legislature, which meets in regular session in January 

of 1991.° 

The election system will not be unduly disrupted. Elections 

for district judges in only 9 of the 254 counties in Texas will be 

  

'The Governor of Texas has called a special session of the 
legislature to consider a new election system for all district 
courts, county courts at law, and appellate courts. The session is 
to begin on February 27, 1990, and to continue for 30 days. 

After 1990, the next regularly scheduled judicial elections 
for district judges are in 1992.  



affected. In the event that this Court should reverse the district 

court decision, a primary election under the present at large 

scheme can be held prior to the November, 1990, general election. 

The equities are clearly on the side of the plaintiffs. If 

the March primaries and the November general elections are allowed 

to proceed, and if the decision of the district court is affirmed,’ 

then the minority voters will have had their votes diluted again, 

and there will be no remedy unless this Court is willing to nullify 

the 1990 elections. Such action will be far more disruptive than 

merely postponing the primaries until the state legislature can 

act, or failing that, this Court can act. 

IX. 

What is the effect of enjoining the March primary 
elections for district judges in pending action by the 
state legislature or action by this Court. 

If the March, 1990, primary elections are enjoined, there will 

be ample opportunity for the state legislature to create a new 

election system for judicial offices. And if they fail to do so, 

then the district court or this Court may enter a remedial order. 

However, if the March primaries are allowed to go forth, and 

the November general elections are held, then those elected will 

serve for four years, and because of the election rotation, most of 

the district judges are scheduled for election in 1990. Of the 172 

  

SAffirmance is more likely than not given the 94 pages of 
findings of fact and conclusions of law produced by the district 
court, and the "clearly erroneous" standard which applies to 
reversal of factual findings.  



  

judges sitting in the relevant nine counties, 115 will be elected 

in 1990.4 Assuming a new election system is created by the 

legislature or by court order, by 1992 only one third of the 

affected judicial elections will remain to be filled. Such a 

result is the equivalent of saying that less than half relief would 

be sufficient to cure minority vote dilution. 

The minority voters urge this Court en banc to set a circuit 

policy for enjoining elections in those cases in which plaintiffs 

have prevailed in vote dilution cases at the district court level. 

  

“In Dallas County, 32 of 37 district judges will be elected in 
1990. In Harris County, 36 of 59 will be elected in 1990. Tarrant 
County, 14 of 23; Bexar County, 13 of 19; Travis County, 6 of 13; 
Jefferson County, 6 of 8; Lubbock County, 3 of 6; Ector County, 3 
of 4; and Midland County 2 of 3. 

10 

 



   

CONCLUSION 

The minority voters request that this Court grant an en banc 
rehearing of the decision of the panel which refused to enjoin the 
March, 1990, primary elections for district judges in nine Texas 
counties. 

Dated: January 24, 1990. 

Respectfully submitted, 

ROLANDO L. RIOS 

Southwest Voter Registration 
Education Project 

201 N. St. Mary's, Suite 521 
San Antonio, TX 78205 
512/ 222-2102 

GARRETT, THOMPSON & CHANG 

ATTORNEYS AT LAW 

A Partnership of 
Professional Corporations 

8300 Douglas, Suite 800 
Dallas, TX 75225 
214/ 369-1952 

SUSAN FINKELSTEIN 

Texas Rural Legal Aid, Inc. 
201 N. St. Mary's, Suite 600 
San Antonio, TX 78205 

512/ 222-2478 

a, 
dL 1. Garfett 
  

Attorneys for Plaintiffs- 
Appellees 

os : 

  
11 

JULIUS L. CHAMBERS 

SHERRILYN A. IFILL 
NAACP Legal Defense & 
Educational Fund, Inc. 

89 Hudson St., 16th Fl. 
New York, NY 10013 

GABRIELLE K. McDONALD 
Matthews & Branscomb 

301 Congress Ave., 2050 
Austin, TX 78701 

Attorneys for Plaintiff- 
Intervenors; Appellees 

EDWARD B. CLOUTMAN, III 
Mullinax, Wells, Baab & 
Cloutman, P. C. 

3301-Flm St. 
Dallas, TX 75203 

E. BRICE CUNNINGHAM 
717 8S. R.L. Thornton Fwy 
Dallas, TX 75203 

Attorneys for Plaintiff- 
Intervenors; Appellees 

 



   

CERTIFICATE OF SERVICE 

The undersigned hereby certifies that a true and correct copy 
of the foregoing motion was served upon the Defendants-Appellants 
by delivery to their attorneys of record by rtified mail, 
postage prepaid, on the 25th day of Janua 

  

    
  

William-¥. Garrett 

12