Supplemental Brief for En Banc Argument of Defendants-Appellants

    : NG *    
MAILING ADDRESS: GRAVES, DOUGHERTY, HEARON & MOODY IRELAND GRAVES (1885-1969) 

POST OFFICE BOX 98 2300 NCNB TOWER BEN EIVAO HAN LET. Pie: 

AUSTIN, TEXAS 78767 5/5 CONGRESS AVENUE OF COUNSEL 

AUSTIN, TEXAS 7870 IN, 
(512) 480-5600 

TELECOPY NUMBER: 

R. JAMES GEORGE, JR. (512) 478-1976 

(512) 480-5603 

June 5, 1990 

via CERTIFIED MAIL 
RETURN RECEIPT REQUESTED 
  

  

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

Re: Cause No. 90-8014; League of United Latin American 
Citizens, et al. v. Jim Mattox, et al. 
  

Dear Mr. Ganucheau: 

Enclosed for filing in the above-referenced matter please find 
twenty-one (21) copies of the Supplemental Brief of Appellants The 
Honorable Ron Chapman, The Honorable Thomas J. Stovall, Jr., The 
Honorable B.B. Schraub, The Honorable John Cornyn III, The 
Honorable Darrell Hester, The Honorable Sam M. Paxson, The 
Honorable Weldon Kirk, and The Honorable Jeff Walker, pursuant to 
the Court's Order setting the case for rehearing en banc. Also 
enclosed are twenty-one (21) copies of the Original Brief of the 
Presiding Judges, previously filed with the Court. Please return 
one file-stamped copy of each brief in the self-addressed stamped 
envelope provided. 

By copy of this letter, all counsel of record are being served 
with a copy of the Presiding Judges' Supplemental Brief. Counsel 
have previuosly been served with a copy of the Original Brief in 
accordance with your rules. 

Yours sincerely, 

GRAVES, DOUGHERTY, HEARON & MOODY 

By s 
R. James/Georg . 

RJIJGjr/kp 
Enclosures 

cc: All counsel of Record 

 



  

    
IN THE UNITED STATES COURT OF APPEALS 

FOR THE FI¥TH CIRCUIT 

  

NO. 90-8014 

  

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, 
COUNCIL NO. 4434, 

Plaintiffs-Appellees 

VS. 

WILLIAM P. CLEMENTS, ETC., ET Al., 

Defendants 

  

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

  

SUPPLEMENTAL BRIEF FOR 

EN BANC ARGUMENT 

THE HONORABLE RON CHAPMAN, THE HONORABLE THOMAS J. 
STOVALL, JR., THE HONORABLE B. B. SCHRAUB, 

THE HONORABLE JOHN CORNYN III, THE HONORABLE DARRELL 
HESTER, THE HONORABLE SAM M. PAXSON, THE HONORABLE 

WELDON KIRK, AND THE HONORABLE JEFF WALKER, 

DEFENDANTS~-APPELLANTS 

  

GRAVES, DOUGHERTY, HEARON & MOODY 

2300 NCNB Tower 

515 Congress Avenue 

Post Office Box 98 
Austin, Texas 78767 
(512) 480-5600 

R. James George, Jr. 

State Bar No. 07810000 

John M. Harmon 

State Bar No. 09020775 

Margaret H. Taylor 
State Bar No. 19712970 

INDEPENDENT COUNSEL FOR DEFENDANTS-APPELLANTS 
June 5, 1990 

   



     
IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

NO. 90-8014 

  

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, 

COUNCIL NO. 4434, 

Plaintiffs-Appellees 

VS. 

WILLIAM P. CLEMENTS, ETC., ET AlL., 

Defendants 

  

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

  

SUPPLEMENTAL BRIEF FOR 

EN BANC ARGUMENT 

THE HONORABLE RON CHAPMAN, THE HONORABLE THOMAS J. 
STOVALL, JR., THE HONORABLE B. B. SCHRAUB, 

THE HONORABLE JOHN CORNYN III, THE HONORABLE DARRELL 
HESTER, THE HONORABLE SAM M. PAXSON, THE HONORABLE 

WELDON KIRK, AND THE HONORABLE JEFF WALKER, 

DEFENDANTS-APPELLANTS 

  

GRAVES, DOUGHERTY, HEARON & MOODY 
2300 NCNB Tower 
515 Congress Avenue 
Post Office Box 98 
Austin, Texas 78767 
(512) 480-5600 

R. James George, Jr. 

State Bar No. 07810000 

John M. Harmon 

State Bar No. 09020775 

Margaret H. Taylor 
State Bar No. 19712970 

INDEPENDENT COUNSEL FOR DEFENDANTS-APPELLANTS 
June 5, 1990 

 



    
CERTIFICATE OF INTERESTED PERSONS 

Pursuant to Local Rule 28.2.1, the undersigned counsel of 

record for Defendants-Appellants, The Honorable Ron Chapman, The 

Honorable 

Honorable 

Honorable 

Honorable 

Thomas J. Stovall, Jr., The Honorable B. B. Schraub, The 

John Cornyn III, The Honorable Darrell Hester, The 

Sam M. Paxson, The Honorable Weldon Kirk, and The 

Jeff Walker, certifies that the following 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 

disqualifications or recusal. 

The parties are as follows: 

Defendants-Appellants 
  

William P. Clements, Governor of the State of Texas 
George S. Bayoud, Jr., Secretary of State of the 

State of Texas 
Jim Mattox, Attorney General of the State of Texas 
Thomas R. Phillips, Chief Justice of the Supreme Court 

of Texas 
Mike McCormick, Presiding Judge, Court of Criminal 

Appeals 
Ron Chapman, Presiding Judge of the 1st Administrative 

Judicial Region 
Thomas J. Stovall, Presiding Judge of the 2nd 

Administrative Judicial Region 
B. B. Schraub, Presiding Judge of the 3rd Administrative 

Judicial Region 
John Cornyn 111, Presiding Judge of the 4th 

Administrative Judicial Region 
Darrell Hester, Presiding Judge of the 5th Administrative 

Judicial Region 
Sam M. Paxson, Presiding Judge of the 6th Administrative 

Judicial Region 
Weldon Kirk, Presiding Judge of the 7th Administrative 

Judicial Region 
Jeff Walker, Presiding Judge of the 8th Administrative 

Judicial Region 

 



    
Ray D. Anderson, Presiding Judge of the 9th 

Administrative Judicial Region 
Joe Spurlock II, President, Texas Judicial Council 
Leonard E. Davis 

Plaintiffs-Appellees 
  

League of United Latin American Citizens 

Defendants-Intervenors 
  

Judge Sharolyn Wood of Harris County 
Judge Harold Entz of Dallas County 
Midland County District Judges 
Travis County District Judges 
Bexar County District Judges 
Jefferson County District Judges 

Plaintiffs-Intervenors 
  

Joan Winn White 
Jesse Oliver 
Fred Tinsley 
Houston Lawyers Association 
Francis Williams 
Rev. William Lawson 
Texas Legislative Black Caucus 

Amicus Curiae 
  

Attorneys 

The Attorney General of the United States 
Twenty-Seven Incumbent Judges 
The Washington Legal Foundation 

for the parties are as follows: 

John L. Hill, Jr. 
Andy Taylor 

Liddell, Sapp, Zively, Hill & LaBoon 
3300 Texas Commerce Tower 

Houston, Texas 77002 

(713) 226-1138 

Renea Hicks 
Javier Guajardo 
Attorney General's Office 
P, O. Box "12548 

Austin, Texas 78711 
(512) 463-2085 

ii 

 



    
R. James George, Jr. 

John M. Harmon 
Margaret H. Taylor 
Graves, Dougherty, Hearon & Moody 
2300 NCNB Tower 
Post Office Box 98 
Austin, Texas 78767 
(512) 480-5600 

William L. Garrett 
Garrett, Thompson & Chang 
8300 Douglas, Suite 800 
Dallas, Texas 75225 
(214) 369-1952 

Rolando L. Rios 
Attorney at Law 

201 -N..S5t. Mary's, Suite 521 
San Antonio, Texas 78205 
(512) 222-2102 

J. Eugene Clements 
Evelyn V. Keyes 
Porter & Clements 

700 Louisiana, Suite 3500 
Houston, Texas 77210 

(713) 226-0600 

Robert H. Mow, Jr. 
David Godbey 
Hughes & Luce 
2800 Momentum Place 

1717 Main Street 
Dallas, Texas 75201 
(214) 939-5500 

Mark H. Dettman 
County Attorney 
P. O. Box 2559 

200 West Wall 
Midland County Courthouse, 2nd Floor 
Midland, Texas 79702 
(915) 688-1084 

iii 

 



   

  

Seagal V. Wheatley 
Donald R. Philbin, Jr. 

Oppenheimer, Rosenberg, Kelleher & Wheatley, Inc. 
711 Navarro, 6th Floor 
San Antonio, Texas 78205 
(512) 224-7540 

Tom Maness, District Attorney 
Tom Rugg, Assistant District Attorney 
Jefferson County Courthouse 
Beaumont, Texas 77701 

Edward B. Cloutman, III 
Mullinax, Wells, Baab & Cloutman, P.C. 
3301 Elm Street 
Dallas, Texas 75226-1637 
(214) 939-9222 

E. Brice Cunningham 
Attorney at Law 

777 S.R.L. Thornton Freeway, Suite 121 
Dallas, Texas 75203 

(214) 428-3793 

Sherrilyn A. 1£i1} 
NAACP Legal Defense & Educational Fund, 
99 Hudson Street, 16th Floor 

New York, New York 10013 
(212) 219-1900 

Gabrielle K. McDonald 
Matthew & Branscomb 

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

Susan Finkelstein 
Attorney at Law 
201 N. St. Mary's Street, Suite 600 
San Antonio, Texas 78205 
(512) 222-2478 

Michael Ramsey 
Ramsey & Tyson 
2120 Welch 
Houston, Texas 77019 

(713) 224-2001 

iv 

Inc. 

 



   

  

Daniel J. Popeo 
Paul D. Kamenar 
Alan M. Slobodin 
1705 N. Street, N.W. 

Washington, D.C. 20036 

Gerald H. Goldstein 
Goldstein, Goldstein & Hilley 
29th Floor, Tower Life Building 
San Antonio, Texas 78205 
(512) 226-1463 

Joel H. Pullen 
Kaufman, Becker, Pullen & Reibach 
2300 NCNB Plaza 

300 Convent Street 

San Antonio, Texas 78205 
(512) 227-2000 

Michael E. Tigar 
Attorney at Law 

727 East 26th Street 

Austin, Texas 78705 

Royal B. Lea, III 
Attorney at Law 
600 NBC Building 
San Antonio, Texas 78205 
(512) 225-0484 

Paul Strohl 
Attorney at Law 
100 Founders Square 
900 Jackson Street 
Dallas, Texas 75202 

(214) 977-9000 

Daniel M. Ogden 
Attorney at Law 
900 Chateau Plaza 
2515 McKinney Avenue 
Dallas, Texas 75201 

Walter L. Irvin 
Attorney at Law 
5787 South Hampton Road 
Suite 210, Lock Box 122 
Dallas, Texas 75232-2255 
(214) 744-5994 

 



    
John R. Dunne, Assistant Attorney General 
Mark Gross, Attorney 
U.S. Department of Justice 
Civil Division 
P.O. Box 66078 

Washington, D.C. 20035-6078 

Orlando Garcia 
Attorney at Law 
200 Navarro, Suite 101 
San Antonio, Texas 78205 
(512) 225-6763 

Bertha Alicia Mejia 
Attorney at Law 

1211 Hyde Park 
Houston, Texas 77006 

Larry Evans 

Attorney at Law 
2323 Caroline 
Houston, Texas 77004 

Jose Garza 

Judith Sanders Castro 
Mexican American Legal 

Defense Educational Fund 
140 East Houston, Suite 300 
San Antonio, Texas 78205 

  
vi 

  

 



    
TABLE OF CONTENTS 

CERTIFICATE OF INTERESTED PERSONS ., Ww 4 vs 4% 

TABLE OF AUTHORITIES 

STATEMENT 

STATEMENT 

STATEMENT 

A. 

B. 

OF JURISDICTION oo viiviv ve oli ie vw 

OFTHE ISSUES v oie ec wd vv a iu 5 wo.» 

OF THE CASE (ei. cite, oy td aii Ue aia wire ow 

Course of Proceedings and Disposition in the Court 
Below 

Statement of the Facts 

SUMMARY OF THE ARGUMENT 

I. 

Il, 

I1Y. 

CONCLUSION 

CERTIFICAT 

The Texas system of electing district judges cannot 
be challenged by a vote dilution claim because 
district judges occupy single-member offices. 

A. The correct focus is on minority influence and 
participation in the political process. 

B. Imposition of single-member districts onto the 
Texas system of electing judges decreases 
minority political influence 

C. District judges occupy single-member offices 

The district court erred by excluding from 
consideration factors that were clearly relevant to 
the "totality of the circumstances" of district 
judge elections . . 

The district court erred in imposing its own interim 
plan, which was inconsistent with the purposes of 
the Act, without an evidentiary hearing 

EOF SERVICE: \ ciiviis oo 275% sv To 6 in vin aie ww 

vii 

12 

15 

17 

20 

ed 

23 

 



    
TABLE OF AUTHORITIES 

CASES PAGE 

Butts v. City of New York, 779 F. 24 141 
(2nd Cir. 1985), cert. denied, 
478 U.S. 1021, 106-8. Ct. 3335, : 

92 D.oER, BR 740 (1986) "v=. oa LS ABT 

  

  

Chisom v. Edwards, 839 F. 2d 1056 
(5th Cir.), cert. denied, 
U.S. , 109°S, Ct. 390, 102 L. Ed. 
28 379 (1988) Bes oh a aE Ew Sal Neg gen Sg Bk TY 

  

  
  

  

Pavis v. Bandemer, 478 U.S. 109, 106 8. Ct. 
2797,-92 1, Bd. 24 85 (1986) i.” Jits vii aie eee a 
  

Edge v. Sumter County School District, 775 

FP. 2441509 (11th Cir. 1985) og ath ihe ww a Te ie hier RN BY 21 
  

LULAC v. Mattox, MO-88-CA-154 
(W.Do Tex. Jan. 2, 10990) . ui 2 eign vo vin vo deiies sn ori wid 
  

LULAC v. Mattox, No. 90-8014, 

(Sth Cir, May 13, 3990) & +s. s os wie vv va B,.6, pagsim 
  

LULAC v. Mattox, No. MO-88-CA-154 
(W.DA A Tex., Noy, 8, 1989). . wivie vv Winds, “34.76, 19 
  

NAACP v. Stallings, 829 F. 24d 1547 

(1ith Cir. 1987), cert. denied, 
485% U.8..936,:.108 S,.. Ct... 1111, 99 

  

  

  

  

  

  

  

  

  

Le BEd. 24 272 H108B) te ty oi. col, SRR ny SRE 16 

Overton v. City of Bustin, 871 F. 24 529 
(BthoCir. 1988) ni to ay oh rh, age gl a an 

Southern Christian Leadership Conference 
Y. Siedelman, 714 F, Supp. 511 (M.D. Ala. 1989)... . .. 16 

Thornburg v. Gingles, 478 U.S. 30, 
106.8. Ct. 2752, 92' 1. BA. 2d 25 (1988) + . . ‘3, 6, passim 

United States v. Dallas Co. Comm'n, 850 F. 2d 1430 
(11th Cir. 1988), cert. denied U.s. 

102 SS. Ct. .1768,-104 1. Ed. 24 203 
(OBO Fite 4 sh mite oe a, in Tan iE, a a ET 

viii 

 



Upham v. Seamon, 456 U.S. 37,102 8. Ct. 
1518, 71 L. Ed. 24 725 (1982) 
  

STATUTES 

42. U.8,C. § 1978 (1982. =. \. JA, 5 Jona oon 3, passim 

MISCELLANEOUS 

S. Rep. No.,;97-417, 97th Cong. 2d Sess. 28 (1982). 

 



    
STATEMENT OF JURISDICTION 

This is an appeal from a Memorandum Opinion and Order entered 

by the United States District Court for the Western District of 

Texas, Midland Division, on November 8, 1989, holding that the 

present system of electing district judges in Texas violates 

Section 2 of the Voting Rights Act. This appeal also encompasses 

an Order entered on January 2, 1990 granting injunctive relief and 

imposing an interim election plan. The district court granted the 

right for an interlocutory appeal. Jurisdiction is based on 28 

U.S.C. §1292(a)(1) and 1292(b). 

 



    

IX. 

I1I. 

STATEMENT OF THE ISSUES 

The Texas system of electing district judges cannot be 
challenged by a vote dilution claim because district judges 
occupy single-member offices. 

The district court erred by excluding from consideration 
factors that were clearly relevant to the "totality of the 
circumstances" of district judge elections. 

The district court erred in imposing its own interim plan, 
which is inconsistent with the purposes of the Act, without 
an evidentiary hearing. 

Xi 

 



    
IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

NO. 90-8014 

  

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, 
COUNCIL NO. 4434, 

Plaintiffs-Appellees 

VS. 

WILLIAM P. CLEMENTS, ETC., ET AL., 

Defendants 

  

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

MIDLAND-ODESSA DIVISION 

  

SUPPLEMENTAL BRIEF FOR 

EN BANC ARGUMENT 

THE HONORABLE RON CHAPMAN, THE HONORABLE THOMAS J. 
STOVALL, JR., THE HONORABLE B. B. SCHRAUB, 

THE HONORABLE JOHN CORNYN III, THE HONORABLE DARRELL 
HESTER, THE HONORABLE SAM M. PAXSON, THE HONORABLE 

WELDON KIRK, AND THE HONORABLE JEFF WALKER, 

DEFENDANTS-APPELLANTS 

  

STATEMENT OF THE CASE 

A. Course of Proceedings and Disposition in the Court Below. 

Appellants The Honorable Ron Chapman, The Honorable Thomas J. 

Stovall, Jr., The Honorable B. B. Schraub, The Honorable John 

Cornyn III, The Honorable Darrell Hester, The Honorable Sam M. 

Paxson, The Honorable Weldon Kirk, and The Honorable Jeff Walker 

("Presiding Judges") are the Presiding Judges of Administrative 

 



    
Judicial Regions in Texas, and are members of the Judicial 

Districts Board created by Article V, § 7(a) of the Texas 

Constitution. The Judicial Districts Board is charged with 

reapportioning districts from which state district judges are 

elected. Id. The Presiding Judges file this brief pursuant to 

their Motion for Leave to File Brief Through Independent Counsel, 

which was granted by this Court on February 14, 1990.' 

The Presiding Judges, together with other state officials,? 

were sued in their official capacities by the League of United 

Latin American Citizens Council No. 4434 and various other LULAC 

  

"This brief is filed on behalf of the Presiding Judges listed 
above, and on behalf of Leonard E. Davis, who is also a member of 
the Judicial Districts Board. Other members of the Judicial 
Districts Board not represented by independent counsel are: The 
Honorable Thomas R. Phillips, Chief Justice of the Supreme Court 
of Texas; The Honorable Mike McCormick, Presiding Judge, Court of 
Criminal Appeals; The Honorable Ray D. Anderson, Presiding Judge, 
Ninth Administrative Judicial Region; and Joe Spurlock II, 
President, Texas Judicial Council. 

Several members of the Judicial Districts Board were replaced 
by new members since the district court's November 8, 1989 opinion 
delineating the parties. Specifically, B. B. Schraub replaced 
James F. Clawson as Presiding Judge of the Third Administrative 
Judicial Region; John Cornyn III replaced Joe E. Kelly as Presiding 
Judge of the Fourth Administrative Judicial Region; and Darrell 
Hester replaced Robert M. Blackmon as Presiding Judge of the Fifth 
Administrative Judicial Region. These new members are substituted 
parties pursuant to Fed. R. Civ. P. 25(d). 

In addition to the members of the Judicial Districts Board, 
the following officials were sued in their official capacities: 
William P. Clements, Governor of the State of Texas; George 8S. 
Bayoud, Jr., Secretary of the State of the State of Texas; and Jim 

Mattox, Attorney General of the State of Texas. 

2 

 



   
organizations and individual plaintiffs? (collectively referred to 

as "LULAC"), under the Voting Rights Act of 1965, as amended, 42 

U.S.C. § 1973 (1982) ("the Act"). LULAC contended that the present 

system for electing Texas district judges in nine targeted judicial 

districts? violated Section 2 of the Voting Rights Act and the 

Fourteenth and Fifteenth Amendments. 

After a bench trial, the trial court entered a Memorandum, 

Opinion and Order on November 8, 1989. The court rejected LULAC's 

argument that the present system of electing Texas judges in the 

nine targeted judicial districts violated the Fourteenth and 

Fifteenth Amendments, finding no proof of discriminatory intent. 

LULAC v. Mattox, No. MO-88-CA-154, slip op. at 91-92 (W.D. Tex.,   

Nov. 8, 1989) (hereinafter Nov. slip op.). 

The district court ruled in favor of LULAC on the Voting 

Rights Act claim. Purporting to apply the analysis set out in 

Thornburg v. Cingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L. Ed.24 35   

(1986), the court concluded that LULAC met all three requirements 

of the Thornburg decision. Further, the court concluded that under   

  

’LULAC Council #4451 was also a Plaintiff in the suit below. 
In addition, the following organizations and individuals have 
appeared as Plaintiffs or Plaintiff-Intervenors: Joan Winn White, 
Jesse Oliver, Fred Tinsley, the Houston Lawyers Association, 
Francis Williams, Rev. William Lawson, and the Texas Legislative 
Black Caucus. 

“The nine judicial districts at issue encompass ten counties: 
Harris, Dallas, Tarrant, Bexar, Travis, Jefferson, Lubbock, Crosby, 
Ector and Midland. The 72nd Judicial District includes both 
Lubbock and Crosby counties. 

 



the "totality of the circumstances" test, LULAC had established 

that as a result of the present at-large system, minority voters 

do not have an equal opportunity to participate in the election of 

state district judges in Texas. LULAC V. Mattox, Nov. slip op. at 
  

84-91. The court expressly reserved a ruling on LULAC's motion to 

enjoin elections, expressing hope that the Texas legislature would 

offer a remedial plan. Id. at 92-93. 

When the legislature failed to address this issue in special 

session (called five days after the entry of the district court's 

order), the court devised its own interim plan, issued by court 

  

order on January 2, 1990. LULAC v. Mattox, No. MO-88-CA-154 (W.D. 

Tex. Jan. 2,.1990) (hereinafter Jan. slip op.). Prior to the 

court's January order, some of the parties had submitted proposed 

interim plans. LULAC v. Mattox, Jan. slip op. at 4. The district   

court did not, however, hold an evidentiary hearing or enter 

findings of fact or conclusions of law in support of its January 

order. Instead, the court simply issued an order enjoining all 

defendants from holding elections for state district court judges 

in the targeted counties, and imposed its own interim plan. 

Under the court's plan, a nonpartisan election was ordered for the 

open district court seats in the targeted counties to be held the 

first Saturday of May, 1990. The court ordered that each judicial 

district under the present system be divided into subdistricts, 

with each candidate running for a designated subdistrict. Jan.  



      

slip op. at 5-7. In short, the court mandated single-member 

district elections for independently functioning judges, who do not 

engage in collegial decisionmaking but who have county-wide 

jurisdiction. 

The district court granted the right for interlocutory appeal. 

Iga. at 8. On January 10, 1990, this Court granted various 

appellants' motions for stay pending appeal. This Court also 

expedited and consolidated the appeals from the district court's 

November and January orders. On May 11, 1990, a panel of this 

Court reversed the district court's November and January orders. 

The panel majority concluded that the election of independently 

functioning district judges, who occupy single-member offices, is 

not subject to vote dilution challenge because the office is 

indivisible. LULAC v. Mattox, No. 90-8014, (5th Cir. May 11, 1990)   

(hereinafter Majority Panel Opinion). A dissenting panel member 

vigorously disputed this conclusion. Id. (hereinafter Dissenting 

Panel Opinion). En banc reconsideration was granted on the Court's 

own motion on May 16, 1990. 

B. Statement of the Facts. 

District courts are the primary trial courts in Texas. See 

Tex. Const. Art. V, § 8. The present suit challenges the system 

of electing district judges in nine judicial districts that have 

more than one district judge. In these districts, each district 

judge exercises county-wide jurisdiction. 

 



    
As explained by the panel majority, district judges may 

exercise some overlapping administrative functions and confer on 

matters such as the adoption of local administrative rules. See 

Majority Panel Opinion at 27-30. In addition, cases can be 

transferred between judges in a district. Nevertheless, there is 

no dispute that each district judge exercises the essential 

Function of his office alone. There is no collegial 

decisionmaking, nor is there a need for consultation or coalition- 

building, when a district judge rules on the case before him. 

The court below issued lengthy findings of fact in its 

November order regarding the characteristics and voting patterns 

in each of the nine targeted districts. See Nov. slip op. at 14- 

81. These findings need not be summarized in detail here. 

Instead, if this Court reaches an issue requiring review of the 

merits determination of the district court, the focus for purposes 

of the Presiding Judges' appeal is on certain facts that the 

district court correctly noted, but concluded must be excluded from 

consideration under the Supreme Court's decision in Thornburg.   

These facts are delineated in the Presiding Judges' principal 

brief, which was refiled with the Court for en banc consideration 

and is incorporated by reference herein. 

 



    
SUMMARY OF THE ARGUMENT 

The purpose of the Voting Rights Act is to protect minority 

influence in the political process. The panel majority properly 

recognized the primacy of this goal. Under the practical 

assessment of political reality required by the Act, the panel 

majority was correct in concluding that the independent authority 

of district judges in Texas characterizes that office as a single- 

member office not subject to a vote dilution challenge. 

Even if a vote dilution claim could be maintained, the 

district court did not make the practical, functional analysis of 

the political process required by the Act and prior decisions in 

concluding that the Act was violated. The district court's failure 

to consider the role of political parties, the election of minority 

candidates by majority voters, and the qualifications of candidates 

distorted the court's conclusion. 

Moreover, the district court failed to conduct an evidentiary 

hearing to receive evidence on the most effective and least 

intrusive remedy to be fashioned to correct the Voting Rights Act 

violations identified by the court. Instead, the district court 

relied on previously announced personal preferences rather than 

properly introduced evidence to impose a remedy that exacerbates 

rather than corrects the perceived problems in the current system. 

 



      

ARGUMENT 

I. 

The Texas system of electing district judges 
cannot be challenged by a vote dilution claim 
because district judges occupy single-member 
offices. 

The presiding judges do not contest that the Voting Rights Act 

is generally applicable to the election of judges, as this Court 

concluded in Chisom v. Edwards, 839 F. 2d 1056 (5th Cir.), cert.   

denied, u.s. ry 109 S.Ct. . 390, 102-1... EQ. 24 379 
    

(1988). The prior panel of this Court correctly held, however, 

that a vote dilution claim cannot be maintained to challenge the 

election of independently functioning district judges who do not 

share the authority of their office. 

A. The correct focus is on minority influence and 
participation in the political process. 

The decision by the majority of the prior panel that the Texas 

system of electing judges does not violate Section 2(b) of the 

Voting Rights Act reflects a practical assessment of the political 

process. The panel focused on the fact that Texas district judges 

act alone in wielding judicial power, and do not participate in 

collegial decisionmaking. This led the majority to conclude that 

Texas district judges occupy single-member offices, which have been 

held to be outside the scope of a vote dilution challenge. 

Majority Panel Opinion at 30-39. 

 



      

The majority's analysis was sharply criticized by the 

dissenting panel member, who argued that the sole focus of Section 

2 was the "elimination of discrimination in voting." Dissenting 

Panel Opinion at 3, n.3 (emphasis in original). The dissenting 

judge concluded that the Act protects only the ability of minority 

group members to elect candidates of their choice, and that "what 

transpires in the office after the votes are cast and counted [is] 

of little consequence." Id. Under the approach adopted by the 

dissenting panel member, the ability of minorities to elect 

decisionmakers is the only proper inquiry; the political influence 

of minorities on nonminority decisionmakers is irrelevant. 

The limited analysis advocated by the dissenting judge has 

some superficial and semantic appeal. The statute in question is, 

after all, entitled the "Voting Rights Act." Section 2(a) of the 

Act prohibits the imposition of any requirement, practice, or 

procedure "in a manner which results in a denial or abridgement of 

the righti. . . to vote." 42 U.5.C. § 1973 (1982). Moreover, it 

is considerably easier to assess minority participation in the 

political process by narrowing the relevant inquiry to a single, 

discrete question: whether minorities can elect their preferred 

candidates. 

Nevertheless, both Congress, in enacting Section 2 of the 

Voting Rights Act, and the Supreme Court, in interpreting its 

provisions, have rejected this narrow focus. Indeed, Section 2 (b) 

 



of the Act, which defines how a violation of subsection (a) can be 

established, expressly broadens the relevant inquiry by requiring 

an assessment of whether minorities have an equal opportunity "to 

participate in the political process and to elect representatives 

of their choosing." 42 U.S.C. § 1973 (1982) (emphasis added). The 

Senate Report accompanying the 1982 Amendments to Section 2, in 

language expressly adopted by the Supreme Court, explains that "the 

question whether the political processes are 'equally open' depends 

upon a searching practical evaluation of the 'past and present 

reality' and on a 'functional view' of the political process." 

Thornburg v. GCindles, 478 U.S. 30, 45, 106 5. Ct. 2752, . 2764, 92   

L. Ed. 2d 25 (1986) (quoting S. Rep. No. 97-417, 97th Cong. 2d 

Sess. 28, 30 (1982), U.S. Code Cong. and Admin. News 1982, p. 208) 

(hereinafter S. Rep.). 

Consistent with this analysis, the Senate Report indicates 

that many factors are relevant in determining whether a violation 

of Section 2 has occurred. It is permissible, for example, for a 

court to look backward to assess the extent that official 

discrimination "touched the right of the members of the minority 

group to register, to vote, or otherwise to participate in the 

democratic process." S. Rep. at 28-29, U.S. Code Cong. & Admin. 

News 1982, pp. 206-207. The present effects of discrimination "in 

such areas as education, employment, and health, which hinder 

[minority group members'] ability to participate effectively in the  



    
political process," may also be examined. Id. Finally, it is 

relevant to look beyond election day to determine "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." Id. 

All of these factors are pertinent concerns because, contrary 

to the assertions of the dissenting member of the prior panel, the 

Act is not focused solely upon the election of minority candidates. 

Votes are important both at the ballot box and beyond, as elected 

officials reflect the choices and priorities of their electorate. 

As the Supreme Court has expressly recognized, "the power to 

influence the political process is not limited to winning 

elections." Davis v. Bandemer, 478 U.S. 109, -132,. 106 8. Ct. 2797,   

2810, 92 L. Ed. 2d 85 (1986) (plurality opinion).° 

Congress expressly incorporated this principle into the Voting 

Rights Act in the final proviso to Section 2(b), which explains 

that "nothing in this Section establishes a right to have members 

of a protected class elected in numbers equal to their proportion 

in the population." 42 U.S.C. § 1973. This provision clearly 

expresses Congress' intent that Section 2 not be focused 

  

>The Davis plurality opinion was written by Justice White, 
joined by Justices Brennan, Marshall, and Blackmun. This language 
was quoted with approval by a different group of Justices in 
Thornburg v.. Gingles, 478 U.S. at 99, 106 8. Ct. at 2791 (Justice   

O'Connor, concurring in result, joined by Chief Justice Burger, 
Justice Powell, and Justice Rehnquist). 

1x 

 



    
exclusively on minority election of minority candidates. Instead, 

"an alleged impairment of voting strength requires consideration 

of the minority group's access to the political processes 

generally, not solely consideration of the chances that its 

preferred candidates will actually be elected." Thornburg, 478 U.S. 
  

at 104,106 8S. Ct. at 2794 (O'Connor, J. concurring). 

In sum, the protection of the right to vote, as expressed in 

the Voting Rights Act, is only the most tangible aspect of a 

broader legislative purpose: to protect the influence and 

participation of minorities in the political process. The majority 

of the prior panel did not err in recognizing the primacy of this 

goal, and refusing to apply the Act in a manner that dilutes 

minority political influence, as explained below. 

B. Imposition of single-member districts onto the Texas 
system of electing judges decreases minority political 
influence. 

The linchpin of the panel majority opinion is the fact that 

each Texas district judge "acts alone in wielding judicial power, 

and once cases are assigned there is no overlap in decisionmaking." 

Majority Panel Opinion at 31. At the same time, each district 

judge has at least county-wide jurisdiction, so that a litigant can 

be assigned to appear before any one of the district judges in a 

district. it was the confluence of these two factors -- 

independent decisionmaking and county-wide jurisdiction -- that 

led the prior panel to conclude that "where judges make their 

12 

 



    
decisions alone, electing judges from single-member districts only 

ensures that a small number of governmental decisions will be 

influenced by minority interests, while minority interests will not 

be represented at all in the majority of judicial decisions." Ia. 

at 38. 

The absence of collegial decisionmaking is indeed a critical 

fact with pervasive impact that distinguishes this case from 

Chisom. Under the system ruled upon in Chisom, a litigant 

appearing before the Louisiana Supreme Court could vote for one of 

the justices hearing his case. More importantly, each appellate 

Justice elected from a single-member district, including minority- 

dominated districts, must confer and vote on every case. Through 

the collegial process of joint deliberation, the opinion of a 

minority-elected appellate judge is considered by his colleagues. 

In this manner, the influence of minority members electing 

appellate judges from single-member districts echoes throughout the 

judicial decisionmaking process, much like the election of 

legislators from single-member districts gives direct voice to 

minority members through the give and take of the legislative 

process. 

The opposite is true if single-member districts are imposed 

onto the election of district judges in Texas. Under the interim 

plan ordered by the district court, the influence of minority 

voters is concentrated, where possible, in districts with greater 

313 

 



    
than fifty percent minority composition. These district lines do 

not, however, serve to increase minority influence. Instead, they 

act as impermeable boundaries. Because the district judges do not 

participate in collective decisionmaking, their influence is 

limited solely to the cases randomly assigned to them. At the same 

time, minority litigants will be more likely than not to appear 

before judges elected in majority-dominated districts with 

negligible numbers of minority members and negligible minority 

political influence.® In short, when trial judges with county-wide 

jurisdiction are elected from single-member districts, the 

political influence of minorities is narrowly cabined while the 

responsiveness of a great majority of elected judges to minority 

interests is likely to decrease. 

It was proper for the panel majority to consider these 

untoward consequences in its practical evaluation of political 

reality, which indeed is the required analysis under the Act. 

Moreover, as previously noted, the panel correctly concluded that 

the overriding goal of protecting minority political influence 

should not be subverted by a narrow focus on the act of voting and 

  

®The majority panel members correctly noted, for example, that 
an order requiring the election of judges from single-member 
subdistricts in Harris County would create nine of fifty-nine 
judicial positions elected from minority-dominated districts. When 
minority members are litigants, however, they would be subject to 
random assignment to any district court, and would have an 84.75% 
chance of appearing before a judge who has no direct political 
interest in being responsive to minority concerns. Majority Panel 
Opinion at 36-37. 

14 

 



    

1 

the results of an election. These fundamental elements underlie 

and support the panel's ultimate conclusion that the independent 

decisionmaking authority of district judges in Texas places that 

office within the rubric of single-member offices, which are 

outside the reach of a vote dilution claim. 

C. District judges occupy single-member offices. 

The panel majority concluded that because each district judge 

exercises the full authority of his or her office independently of 

other judges, each judge occupies a single-member office. Such 

offices have previously been held not subject to a vote dilution 

claim under Section 2 because "there is no such thing as a 'share' 

of a single-member office." Butts v. City of New York, 779 F. 2d 
  

141, 148 (2nd Cir. 1985), cert. denied, 478.U.8. 1021, 106 8. Ct.   

  3335, 92 L. Ed. 2d 740 (1986); see also United States wv. Dallas 

Co. Comm'n, 850 FF. 28.1430, 1432 n.}. (1ith Cir. 1988), cert,   

denied, U.S. 5 109-8. Ct. 1768, 104 L. Ed. 24 
    

203 (1989). 

The logic underlying the single-member officeholder exception 

is compelling. It is simply impossible to capture a share of that 

which cannot be divided. Thus, while noting in passing a single 

case that appears to question this principle,’ the dissenting panel 

  

"The dissenting panel member noted in a footnote that NAACP v. 
  

  Stallings, 829 F.2d 1547 (11th Cir. 1987), cert. denied, 485 U.S. 
936, 108 8S. Ct. '1111,'99 1L.. Ed. 24 272 (1988) "implicitly rejected” 
the Butts rule. Dissenting Panel Opinion at 6, n.4. In fact, the 

  

  Stallings court did not address the appropriateness of considering 
(continued...) 

15 

 



    

member apparently accepts this proposition as applied to the 

"traditional" single-member offices, such as mayor or comptroller, 

that were at issue in Butts. The majority and dissenting panel 

members part company, however, on the question of whether Texas 

district judges should be included within the category of single- 

member officials. The dissenting panel member concluded that 

district judges do not fall within this rubric because 

[t]he true hallmark of a single-member office is that 
only one position is being filled for an entire 
geographic area, and the jurisdiction can therefore be 
divided no smaller . . . [Wlhat is important is how many 
positions there are in the voting jurisdiction. It is 
irrelevant . . . that these officials happen to exercise 
the full authority of their offices alone. 

Dissenting Panel Opinion at 12, quoting Southern Christian 
  

Leadership Conference v. Siegelman, 714 F. Supp. 511,518 n.-19   

(M.D. Ala. 1989) (emphasis in original). 

This fact is irrelevant, however, only if one accepts the 

faulty premise that underlies the dissenting panel opinion: that 

what transpires at the ballot box is the only proper inquiry. 

Under the practical analysis of political reality required by the 

Act, the absence of collegial decisionmaking is indeed a decisive 

factor. The imposition of single-member districts where there is 

  

"(...continued) 
a vote dilution challenge to a single-member office, but instead 
apparently assumed the application of Section 2. This oversight 
can perhaps be explained by the fact that the court's attention was 
focused on evidence that intentional discrimination motivated a 
legislative enactment, creating a valid constitutional claim. 829 
F. 24 at 1552, 

16 

 



    

no shared authority diminishes minority political influence in 

clear contravention of the purpose of the Act. For this reason, 

the panel majority properly concluded that the exercise of 

independent decisionmaking authority by Texas trial judges 

identified these positions as single-member offices that cannot be 

divided. 

This simple logic underlies the panel majority decision. It 

is the same logic upon which the Butts decision was grounded -- an 

indivisible office cannot be partitioned. In the absence of 

collective decisionmaking, where consultation and coalition- 

building broaden minority political influence, there is simply no 

increase in political clout obtained by limiting each minority 

voter to participation in the selection of only one independent 

decisionmaker. Because the Act requires a searching assessment of 

political reality, and is primarily concerned with protecting 

minority influence, Section 2(b) cannot be applied to subdivide the 

election of district judges in Texas. 

II. 

The district court erred by excluding from 
consideration factors that were clearly 
relevant to the "totality of the circumstances" 
of district judge elections. 

The panel majority reversed the district court's decision on 

the ground that a vote dilution claim cannot be maintained to 

challenge the Texas system of electing independently functioning 

district judges, and thus did not reach the question of whether the 

17 

 



   

  

district court applied the proper analysis in concluding that the 

Act was violated. The panel majority did state, however, that the 

State's interest in its structural arrangement of individual trial 

Judges outweighed the potential amelioration of any vote dilution. 

Majority Panel Opinion at 38. While this conclusion was sharply 

criticized by the dissenting panel member, neither opinion 

addressed the factual findings underlying the district court's 

liability determination. 

The Presiding Judges agree with the dissenting panel member 

that the State's interest in maintaining an electoral system is 

simply one factor to be measured under the "totality of 

circumstances" test for determining a violation of Section 2. See 

Dissenting Panel Opinion at 19. If this Court were to determine 

that the election of district judges is subject to a vote dilution 

challenge, the State's interest in maintaining the present system 

should not be the only factor considered in reviewing the lower 

court ruling. Indeed, a more fundamental and pervasive flaw 

infected the district court's liability determination. The court 

committed reversible error in refusing to consider all of the 

relevant evidence regarding voting behavior in the election of 

district judges in Texas. 

This argument is set out in full in Part II of the Presiding 

Judges' principal brief, which was refiled with the Court for en 

banc argument and is incorporated by reference herein. To 

18 

 



    

summarize, the district court made explicit findings that certain 

factors other than race, such as straight party ticket voting and 

political affiliation, determined the outcome of judicial 

elections. The court noted, for example, that minority candidates 

who ran as Republicans were elected in Dallas and Bexar counties 

because of their success in attracting the majority vote. Nov. 

slip op. at 34-39, 45-46. The court concluded, however, that it 

was constrained by law to ignore the role that partisan politics 

played in the election of judges. Id. at 89. At the same time, 

in an analysis that turns logic on its head, the court determined 

that elections where majority voters threw their support behind 

Republican minority candidates were in fact evidence of racial bloc 

voting, because the minority voters were unable to elect their 

preferred candidates who were Anglo democrats. Id. at 25-26 and 

34. In sum, while purporting to consider the "totality of 

circumstances" as required by the Act, the court held that "under 

the controlling law, party affiliation, straight party ticket 

voting and [other] campaign factors do not constitute legally 

competent evidence in the present case." Id. at 89. 

The district court's analysis conflicts with the views of a 

majority of members of the Supreme Court, who have stated that 

evidence that factors other than race, such as party affiliation, 

impact voting behavior is indeed relevant in a Section 2 challenge. 

See Thornburg v. Gingles, 478 U.S at 84, 106 S. Ct. at 2783 (White, 
  

19 

 



  

J. concurring); Id. at 100, 106. S. Ct. at 2792 (O'Connor, 3., 

joined by the Chief Justice, Justice Powell, and Justice Rehnquist, 

concurring). This Court has expressly noted that the totality of 

opinions in Thornburg "suggested that evidence of factors other   

than statistical racial voting patterns should be considered 

." Overton wv, Clty of Austin, 871 PF. 24 529, 538 {(5th- Cir. 
  

1989). The district court's refusal to consider highly relevant 

evidence of factors that clearly influenced voting patterns is 

reversible error. 

III. 

The district court erred in imposing its own 
interim plan, which was inconsistent with the 
purposes of the Act, without an evidentiary 
hearing. 

A final, fundamental error by the district court requires 

reversal of the January order imposing an interim election plan, 

even if the court's finding of a Section 2 violation were to be 

upheld. The Plaintiffs-Appellees concede that the district court 

overstepped its authority in ordering a nonpartisan election as 

part of the interim election plan. Principal Brief of Plaintiffs- 

Appellees at 28. The Presiding Judges contend, however, that the 

entire interim plan, and not just the nonpartisan aspect of the 

election order, must be reversed because the district court did not 

hold an evidentiary hearing to formulate the least intrusive 

effective remedy. 

20 

 



    

As “argued in full in Part III of the Presiding Judges' 

principal brief, incorporated by reference herein, a district court 

must hold an evidentiary hearing to formulate an appropriate, 

effective remedy that does not intrude on the State's policy 

choices anymore than necessary to correct the specific violation 

involved. See Upham v. Seamon, 456 U.S. 37, 41, 102 S. Ct. 1518, 
  

1521; 71 :L. Ed. 24 725 (1982); Edge Vv. Sumter County School 
  

Rigtrict, 775. F. 24.1509, 1510 {11th Cir. 1985). The district 
  

court failed to take any evidence on the proper remedy and to 

assess the impact of its interim plan. Indeed, the court 

implemented a remedy that would act to diminish minority political 

influence. In short, the district court imposed its own personal 

preferences without an evidentiary hearing, and ultimately 

fashioned a remedy that only exacerbated the problem the court 

itself set out to correct. 

CONCLUSION 

The majority panel opinion was criticized for its "result- 

oriented" analysis. Dissenting Panel Opinion at 2. In fact, the 

untoward consequences of imposing single-member districts onto the 

Texas system of electing judges must be examined under the 

practical analysis of political reality required by the Act. 

Recognizing that the overriding goal of protecting minority 

political influence should not be subverted by an exclusive focus 

on the results of elections, the panel majority properly concluded 

21 

 



    

that the absence of collegial decisionmaking is the hallmark of a 

single-member office. Because there can be no "share" of 

decisionmaking authority among Texas district judges, the office 

is indivisible and is not subject to a vote dilution challenge. 

If this Court determines that a vote dilution challenge can 

be maintained, however, the district court's ruling on the merits 

must still be reversed. In determining that the Act had been 

violated, the court ignored relevant factors that were clearly part 

of the totality of unique circumstances of electing district judges 

in Texas. Finally, without benefit of an evidentiary hearing, the 

court imposed a traditional, yet inappropriate, remedy that invaded 

the State's policy choices and did not serve to correct the 

perceived problems in the current system. For the foregoing 

reasons, the judgment of the district court should be reversed. 

Respectfully submitted, 

GRAVES, DOUGHERTY, HEARON & MOODY 
2300 NCNB Tower 

515 Congress Avenue 

Post Office Box 98 
Austin, Texas 78767 
(512) 480-5600 

siolofes Ssovse 2 f= 
St Bar No./078100 

Johw’ M. Harmon 

State Bar No. 09020775 

Margaret H. Taylor 
State Bar No. 19712970 

  

INDEPENDENT COUNSEL FOR DEFENDANTS-APPELLANTS 

22 

 



      

- 

| 

CERTIFICATE OF SERVICE 

By my signature below, I do hereby certify to the Court that 
a true and correct copy of this document and any attachments has 
been served on all counsel of record by United States mail this 5th 
day of June, 1990. 

C= nts Jr. i a 
  

23