Judge Wood's Brief in Opposition to HLA's Petition for Writ of Certiorari to the Fifth Circuit

    & & 

  

NO. 90-813 

IN THE SUPREME COURT OF THE UNITED STATES 

  

HOUSTON LAWYERS’ ASSOCIATION, et al., 

Petitioners, 
Vv. 

JIM MATTOX, et al., 

Respondents. 

  

CERTIFICATE OF SERVICE 

This is to certify that on the Z [S lday of Le 1990, three true and 

correct copies of Harris County District Judge Sharolyn Wood’s Brief in Opposition to Houston 

  

  

Lawyers’ Association’s Petition for Writ of Certiorari to the United States Supreme Court was 

served by first class U.S. mail on the following 

Hon. Richard Thornburgh 

Attorney General of the United States 
United States Department of Justice 
Main Justice Building 
10th & Pennsylvania Avenue, N.W. 

Washington, D.C. 20530 

Mr. David C. Godbey, Jr. 
Mr. Robert H. Mow, Jr. 

Hughes & Luce 

2800 Momentum Place 

1717 Main Street 

Dallas, Texas 75201 

Mr. Seagal V. Wheatley 

Mr. Donald R. Philbin, Jr. 

Oppenheimer, Rosenberg, Kelleher & Wheatley 
711 Navarro Street, 6th Floor 

San Antonio, Texas 78205 

 



  

Mr. Mark H. Dettman 

Attorney at Law 

Post Office Bax 2559 
Midland, Texas 79702 

Mr. Gerald H. Goldstein 

Goldstein, Goldstein & Hilley 
29th Floor, Tower Life Bldg. 

San Antonio, Texas 78205 

Mr. Joel H. Pullen 

Kaufman, Becker, Pullen & Reibach 
2300 NCNB Plaza 

300 Convent Street 

San Antonio, Texas 78205 

Mr. R. James George 

Mr. John M. Harmon 

Ms. Margaret H. Taylor 
Graves, Dougherty, et al. 
P. O. Box 98 

Austin, Texas 78767 

Mr. William L. Garrett 

Garrett, Thompson & Chang 

8300 Douglas, #800 

Dallas, Texas 75225 

Mr. Rolando L. Rios 

Attorney at Law 

201 N. St. Mary’s St., #521 
San Antonio, Texas 78250 

Ms. Susan Finkelstein 

Attorney at Law 

201 N. St. Mary’s St., #600 
San Antonio, Texas 78250 

Ms. Gabrielle K. McDonald 
Matthews & Branscomb 

301 Congress Ave., #2050 
Austin, Texas 78701 

 



  

Mr. Renea Hicks 
Mr. Javier Guajardo 

Special Asst. Atty. Generals 
P. O. Box 12548 
Capitol Station 

Austin, Texas 78711 

Mr. Edward B. Cloutman, II 

Mullinas, Wells, Baab & Cloutman 

3301 Elm Street 
Dallas, Texas 75226-1637 

Ms. Sherrilyn A. Ifill 

NAACP Legal Defense and 

Education Fund, Inc. 
99 Hudson Street, 16th Floor 

New York, New York 10013 

Mr. E. Brice Cunningham 

Attorney at Law 

777 South R. L. Thornton Frwy., Suite 121 
Dallas, Texas 75203 

\ ¢ ia 

” > oe | 2, £2 ~g ~N 

| 4 = = BO ’ Ry nN | J. EUGENE CLEMENTS 
\_ ATTORNEY OF RECORD FOR RESPONDENT 

~~ HARRIS COUNTY DISTRICT 
JUDGE SHAROLYN WOOD 

  

3285C:\DOCS\W0027001\031 

 



EVELYN V. KEYES 

No. 903 13 

= Sens oust of fre Cia Site 
= ~ OcrosEr Term, 1990 

~ HOUSTON LAWYERS’ ASSOCIATION, et Fal. 
: Petitioners, 

m™ MATTOX, et a. 
 Respongents,. 

HARRIS COUNTY DISTRICT JUDGE SHAROLYN : 
~ WOOD'S BRIEF IN OPPOSITION TO HOUSTON 

~ LAWYERS’ ASSOCIATION’S PETITION FOR 
WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR 
THE FIFTH CIRCUIT 

= ir EUGENE CLEMENTS 
~~ PORTER & CLEMENTS 
3500 NCNB Center 

700 Louisiana Street 
Houston, Texas 77002-2730 

- Telephone: (713) 226-0600 
Facsimile: (713) 228-1331 

Lie Attorneys of Record for Respondent = 
: : Harris County District Uap 

ER aE Judge Sharolyn Wood 
Of Counsel: : bain ke TE 

PORTER & CLEMENTS 
700 Louisiana, Suite 3500 

Houston, Texas 77002- 2730 
Telephone: (713) 226 20600 

Facsimile: (713) 228-1331 
MICHAEL J. WOOD 

Attorney at Law 
+ 440 Louisiana, Suite 200 

Houston, Texas 77002 
= Telephone: (713) 228- 101 omar 
a Facsimile; 718) os 9133 Et  



   



I 

QUESTIONS PRESENTED 

Whether elected state judges are “representatives” 

within the scope of § 2(b) of the Voting Rights Act, 
42 US.C. § 1973(b), and, if so, whether § 2(b) 

is constitutional as thus interpreted? 

Whether independent overlapping county-wide judi- 

cial election districts are within the scope of § 2(b) 

of the Voting Rights Act and if so, whether § 2(b) 

is constitutional? 

 



  

II 

PARTIES 

The participants in the proceedings below were: 

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 
DeLoyd 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 

   



  

III 

Thomas R.- Phillips, Chief Justice, Texas 
Supreme Court 

Mike McCormick, Presiding Judge, Court of 
Criminal Appeals 

Ron Chapman, Presiding Judge, 1st Administrative 
Judicial Region 

Thomas J. Stoval, Jr., Presiding Judge, 2nd Adminis- 

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

istrative Judicial Region 
John Cornyn, Presiding Judge, 4th Administrative 

Judicial Region 
Robert Blackmon, Presiding Judge, Sth Administra- 

tive Judicial Region 
Sam B. Paxson, Presiding Judge, 6th Administrative 

Judicial Region 
Weldon Kirk, Presiding Judge, 7th Administrative 

Judicial Region 
Jeft Walker, Presiding Judge, 8th Administrative 

Judicial Region 
Ray D. Anderson, Presiding Judge, 9th Administra- 

tive Judicial Region 
Joe Spurlock II, President, Texas Judicial Council 
Leonard E. David 

Defendants-Intervenors: 

Judge Sharolyn Wood 
Judge Harold Entz 
Judge Tom Rickoft 
Judge Susan D. Reed 
Judge John J. Specia, Jr. 
Judge Sid L. Harle 
Judge Sharon Macrae 
Judge Michael D. Pedan  



  

Iv 

TABLE OF CONTENTS 

QUESTIONS PRESENTED ..... ciouecamsi shomtaaioe bes 

PARTIES is ctl Th de aah lnid os 

TABLE OF CONTENTS .......0.0 0. voanrennss 

TABLE OF AUTHORITIES ,....¢2.;. 000 ofc cnsivoeis, 

OPINIONS AND JUDGMENT BELOW '....\..ccavunvn 

JURISDICTION .......... 201 ee ec lve anes 

CONSTITUTIONAL PROVISIONS AND STATUTES 
INVOLVED ...... ..: .orcirinneiriascmriivrnsns 

STATEMENT OF THE CASE .,c.ocunnuciiniancinmie., 

i 

ii. 

Course of Proceedings ...... 0. coos in eriaids os 

Statement of Facts ..... vues rr ve niar eo snnse 

REASONS FOR DENYING THE WRIT .......on00r.. 

1. THE CLAIM THAT § 2(b) OF THE VOTING 
RIGHTS ACT APPLIES TO STATE DISTRICT 
JUDGES HAS BEEN RESOUNDINGLY RE- 
JECTED BY THE FIFTH CIRCUIT EN BANC 

IF THE COURT GRANTS CERTIORARI TO 
REVIEW THE APPLICATION OF § 2 OF THE 
VOTING RIGHTS ACT TO THE JUDICIARY, 
IT SHOULD GRANT CERTIORARI IN THIS 
CASE AND DENY CERTIORARI IN CHISOM 
PV. ROBBER .....coeiivnnmsrssssnsranenes 

3, IF THE COURT GRANTS CERTIORARI IN 
CASE IT SHOULD REVIEW ALL THE ISSUES 
RAISED OR REMAND UNREACHED STAND- 
ARD OF PROOF AND LEGAL ISSUES ....... 

CONCLUSION. .0...covrcviccr ens vsfiuntfes ba vise 

AA
 

WW
 

WW
 

Ww
 

11 

11 

12 

13 

14 

   



Y 

TABLE OF AUTHORITIES 

CASES Page 

Chisom v. Roemer, 839 F.2d 1056 (5th Cir.), cert. denied, 
488 U.S. ,100S. Ct. 300 (1083) ois 5,12 

City of Richmond v. J. A. Croson Co., 109 S. Ct. 706 
E1080) ves ra er a ei a a 9 

Reynolds v, Sims, 377 U.S, 533, 34 8S. Ct. 1362 (1964) ... 13 
South Carolina v. Katzenbach, 383 U.S. 301 (1966) ...... 11 
Thornburg 2. Gingues, 473 U.S. 30 (1986) .............- 9 
Ward’s Cove Packing Co. v. Antonio, 109 S. Ct. 2115 (1989) 9 
Wells v. Edwards, 347 F. Supp. 453 (M.D. La. 1972), 

aff'd, 408 US. 1003.93 S, Ct. 004 (1973) ............. 14 

CONSTITUTIONS AND STATUTES 

United States Constitution, Amendment XIV ............ 2.3.12 
United States Constitution, Amendment XV ............ 2:3,-12 
28 00.8.C. FT 125301F iiicinis ss ware nivay vows waviniossmin sinisies iis 2 
32 of the Voting Rights Act, 42 US.C. $1973 ........ 1-5,11-14 
$ 5 of the Voting Rights Act 42 US.C. $1973(¢c) ...... 3,10 
USC 1988 ona 2,3 

Texas Constitution of 1876, 337, 73)(1) ............ + 2.5,6 

OTHER MATERIAL 

Senate Report 97-417, 1987 U.S. Cong. & Admin. News 177 11 

 



    

 



  

NO. 90-813 

THE 

Supreme Court of the United States 
OcTtoBER TERM, 1990 

HOUSTON LAWYERS ASSOCIATION, et al., 

Petitioners, 

Vv 

JIM MATTOX, et al., 
Respondents. 

HARRIS COUNTY DISTRICT JUDGE SHAROLYN 
WOOD'S BRIEF IN OPPOSITION TO HOUSTON 
LAWYERS’ ASSOCIATION’S PETITION FOR 
WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR 
THE FIFTH CIRCUIT 

Because the en banc ruling of the Court of Appeals 
that § 2 of the Voting Rights Act does not apply to 

the election of state district judges is correct, Respondent/ 

Intervenor Harris County District Judge Sharolyn Wood 

(“Judge Wood”) respectfully opposes the Houston Law- 

yers’ Association’s (“HLA”’s) Petition for Writ of Cer- 

tiorari in this case. Should this Court nevertheless deem 

the issues raised to be worthy of review, Judge Wood 

requests that the Court consider or remand to the Court 

of Appeals, unreached questions developed in the record 

of this case and that the Court refuse to review those 

matters outside the scope of this case which are raised 

in the HL A’s Petition.  



  

2 

OPINIONS AND JUDGMENT BELOW 

Judge Wood incorporates by reference the Houston 

Lawyers’ Association’s (“HLA’s”) statement of opinions 

and judgments below. HLA’s Petition for Writ of Cer- 

tiorari (“Petition”) at 2. However, she objects to the 

HL A’s inclusion in its statement of “Opinions Below” 

and in its appendix at pp. 304a-308a of a letter from 

Assistant Attorney General John Dunne, dated November 

5, 1990 interposing an objection to the creation of fifteen 

additional district judgeships in Texas. That opinion let- 

ter is not part of the record of this case and, since it 

deals with the preclearance of new judicial districts in 

Texas under § 5 of the Voting Rights Act, is irrelevant 

to this § 2 case and is included solely to prejudice the 

outcome of this case.’ 

JURISDICTION 

The decision of the Fifth Circuit was entered on Sep- 

tember 28, 1990. Jurisdiction of this Court is invoked 

under 28 U.S.C. § 1254(1). Federal question juris- 

diction is appropriate since this case involves federal 

statutory and constitutional questions under § 2 of the 

Voting Rights Act, 42 U.S.C. § 1973; the Civil Rights 

Act of 1964, 42 U.S.C. § 1983; and the fourteenth 

and fifteenth amendments to ‘the United States Consti- 

tution. 

1. The Court should be aware, however, that a proceeding has 
been filed by the Texas Attorney General to appeal the Justice 
Department’s denial of preclearance. Given the almost surreptitious 
attack on the Court of Appeals’ opinion, apparent in the Justice 
Department’s letter, Judge Wood calls the Court’s attention to the 
fact that the issues posed squarely here are being obliquely attacked 
in that proceeding. 

   



3 

CONSTITUTIONAL PROVISIONS 
AND STATUTES INVOLVED 

This case involves § 2 of the Voting Rights Act, 42 
U.S.C. 8 1973, set out at HLLA’s Pet. at 3-4; U.S. Const., 

amendments XIV and XV, app. at 5a-7a; §§ 7 and 7(a) 

(1) of the Texas Constitution of 1876, app. at la-2a; 

and, collaterally, § 5 of the Voting Rights Act, 42 U.S.C. 

§ 1973c, app. at 3a-Sa. 

STATEMENT OF THE CASE 

i. Course of Proceedings 

This case was brought in the United States District 

Court for the Western District of Texas, Midland Division, 

by the League of United Latin American Citizens 
(“LULAC”) and certain named black and hispanic indi- 

viduals. The Plaintiffs, Petitioners in this Court, claimed 

that Texas’ constitutional and statutory system for electing 

district judges from county-wide districts violated the 

fourteenth and fifteenth amendments to the United States 

Constitution, 42 U.S.C. § 1983, and § 2 of the Voting 

Rights Act by diluting the votes of blacks and/or his- 

panics in 47 of Texas’ most populous counties. The 

Plaintiffs subsequently withdrew their claims in all but 

ten counties and limited their claims in Haris County 

to blacks only and not hispanics. By Order dated March 

1, 1989, the district court permitted the HLA and certain 

named black individuals to intervene as Plaintiffs on 

behalf of blacks in Harris County; it permitted certain 
named black individuals to intervene as Plaintiffs in 

Dallas County (the “Dallas County Plaintiff/Interven- 

ors”); and it permitted District Judge Wood and Dallas  



  

4 

County District Judge Harold Entz (“Judge Entz”) to 

intervene as Defendants. 

The case was tried to the bench in Midland, Texas, 

beginning September 18, 1989. On November 8, 1989, 

the district court issued its Memorandum Opinion and 

Order (the “Opinion”). The Court rejected Plaintiffs’ 

constitutional claims but held that Texas’ system of elect- 

ing state district judges diluted the votes of minorities 

in all target counties in violation of § 2 of the Voting 

Rights Act. 

On January 2, 1990, without a hearing, the district 

court issued an Order (the “Order”) enjoining the call- 

ing, holding supervising and certifying of elections for 

state district judges under Texas’ judicial election system 

in the target counties and imposed its own Interim Re- 

medial Plan. That Plan, which took effect immediately, 

on the last day on which filing was permitted for judicial 

races under Texas law, totally rewrote Texas’ comprehen- 

sive judicial election system set out in the Texas Govern- 

ment Code and Texas Election Code. It adopted virtually 

in toto a remedial plan solicited by the district court and 

agreed upon by the Plaintiffs, HLA and Texas Attorney 

General Mattox without notice to the Defendant/In- 

tervenors Judge Wood and Judge Entz.? The primary dif- 

ference between the district court’s Interim Remedial Plan 

and the Plaintiffs/Mattox Plan was the substitution of non- 

partisan elections for partisan elections. Judge Wood 
strenuously opposed both the Interim Remedial Plan 

and the Plaintiffs/Mattox Plan on fourteenth and fif- 

teenth amendment grounds, in part because both assigned 

2. Petitioners’ apparent surprise at the district court’s Plan (Peti- 
tion at 12-13, 24) is somewhat disingenuous since Petitioners par- 
ticipated in negotiation of the Plaintiffs/Mattox Plan and endorsed 
it by signature. 

   



5 

judges to legislative districts, with two judges to each 

Democratic/minority district and one to each Republi- 

can/white district. Defendants appealed both from the 

injunction and from the November 9 Opinion. 

Following expedited oral hearing on April 30, 1990, 

a three-judge panel of the Fifth Circuit Court of Appeals 

ruled 2 to 1 in favor of the defense. The Court then 

ordered en banc review sua sponte and heard oral argu- 

ments on June 19, 1990. Of the thirteen judges who 

decided the case, twelve ruled that § 2 of the Voting 

Rights Act does not apply to state district judges.® A 

majority of seven judges, led by Judge Gee, held that 

§ 2(b) of the Voting Rights Act (the vote dilution sec- 

tion) applies only to the election of “representatives” and 

therefore does not apply to judicial elections, thus over- 

ruling a previous Fifth Circuit panel opinion in Chisom 

v. Roemer, 839 F.2d 1056 (5th Cir), cert. denied, 488 

U.S. , 109 8. Ct. 390 (1988). Five judges, led by 

Judge Higginbotham, held that § 2(b) applies to ju- 

dicial elections in general but that it does not apply to 

single-judge trial benches. Only Judge Johnson dissented. 

On November 21, 1989 the HLA timely filed its Petition 
for Writ of Certiorari. 

  

ii. Statement of Facts 

Judge Wood files this Statement of Facts to correct 

numerous serious misstatements of fact in the HLA’s 

Petition. The HLA incorrectly claims that the Texas 

Constitution requires that state district judges be elected 

from districts no smaller than a county (Petition at 9) 

and that Texas’ judicial election system is a numbered post, 
majority vote, “winner take all” judicial election system 

3. The Plaintiffs did not appeal the district court’s denial of their 
constitutional claims.  



  

6 

(Petition at 9), and it implies that each state district 

bench functions statewide by reason of statewide juris- 

diction (Petition at 10). Contrary to Petitioners’ impli- 

cation, each state district court sits in a single-county 

or rural multi-county district with venue co-extensive with 

the electoral district, although jurisdiction technically ex- 

tends to the State boundaries. Tex. Const. §§ 7 and 7(a) 

(f), App. at la-2a. In addition, Texas’ Constitution 
§ 7(a) (i) provides that district judge districts may be 

no smaller than a county unless a majority of the district’s 

residents vote for smaller districts.* App. at 2a. More- 

over, in inaccurately and incompletely characterizing 

Texas’ judicial election system, Petitioners omit the fact 

that, although all Texas district courts are courts of 

general jurisdiction under the Texas Constitution, the 

district courts in the larger counties, including Harris 

County, are either statutorily or by agreement divided 

into four areas of specialized expertise: civil, criminal, 

family, and juvenile courts. Thus, district judges in the 

largest counties expressly run for and are elected to a 

specific civil, criminal, family, or juvenile specialty bench. 

Petitioners also omit the fact that Texas has a partisan 
judicial election system. Under that system, both political 

parties hold primaries in accordance with the detailed re- 

quirements of the Texas Election Code. Candidates of each 

party run for specific courts; if no candidate receives a 

majority in the primary, the two leading candidates face 

each other in a runoff; the winner of each primary or 

4. The Texas Constitution was amended in 1975 to include 
§ 7(a) (i). One of the amendment’s co-sponsors was then State 
Representative (now United States Representative) Craig Washing- 
ton, a witness for the Plaintiffs in this lawsuit. See Pet. app. at 282a- 
283a. The district court concluded that the “apparent” rationale 
for § 7(a)(i) is “that District Judges should not be responsible to 
voters over an area smaller than an area over which they have 
primary jurisdiction.” Pet. app. at 282a. 

   



7 

runoff then faces the other parties’ candidates in the 

general election; and the winner of a plurality in the 

general election occupies the bench for four years. Each 

bench enjoys county-wide venue, jury selection, and docket 

equalization, and each judge enjoys independent author- 

ity as the sole decision-maker on each case that comes 

before him or her. 

Not only do Petitioners mischaracterize the Texas 

district court system, they also grossly misrepresent the 

results of Texas state district judge elections.’ Petitioners 

claim to have demonstrated that voting is “extremely 

racially polarized in Harris County.” Petition at 11. To 

support this statement, Petitioners claim that “although 

17 African American candidates have run for district 

judge in Harris County since 1980, only 2 won.” Pe- 

tition at 10-11. Petitioners further claim that white 

voters never gave more than 40% of their votes to black 

judicial candidates, while black voters gave 96% of their 

vote to black candidates. Petition at 11. Moreover, Pe- 

titioners claim, “Race also consistently outweighed party 

affiliation in district judge elections in Harris County.” 

Id. Each of these statements either depends upon blatant 

statistical manipulation or is contradicted in the record.’ 

Petitioners’ claim that they “demonstrated that voting 
is extremely racially polarized in Harris County” is mis- 

5. At trial HLA presented only claims on behalf of blacks in 
Harris County, Texas’ most populous county, and Judge Wood de- 
fended the Texas judicial election system against those claims. 
Accordingly, the factual and statistical claims about judicial voting 
patterns in the HLA’s brief and in this brief are confined to Harris 
County. 

6. In the Court of Appeals, Judge Wood urged several significant 
errors, regarding Plaintiffs’ trial proof and the district court’s evi- 
dentiary and legal findings. See appendix at 8a. In the unlikely event 
this Court reverses the Court of Appeals, remand would be necessary 
to present these issues—none of which were reached.  



  

8 

leading. Petitioners’ expert, Dr. Richard Engstrom, analy- 

zed only 17 selected contested black/white elections in 

Harris County since 1980. He ignored the three 1978 

district judge elections in which blacks ran — and won 

— contested races against a white candidate. Two of 

those black judges have run — and won —every four 

years since 1978. Only one of those four races was con- 

tested; therefore, only that race was counted. In fact, 

blacks have run in 22 races in general elections for state 

district judge in Harris County since 1978 and have won 

7 of those races — 4 contested and 3 uncontested — for 

a total success rate of 32% in all races, and 18% in 

contested races. See Exh. DW-1; R. 242. Moreover, 

11 of the 15 losses were attributable to only four candi- 

dates: Weldon Berry, Sheila Jackson Lee, Freddie Jack- 

son, and Matthew Plummer. Exh. DW-1. In addition, 

no black district judge candidate has lost in the Demo- 

cratic primary since 1984. Exh. DW-2; R. 62. As to 

the 96% of their vote which black voters give to black 

candidates, the black vote is the same for white candi- 

dates so long as they are Democrats since 96% is the 

usual percentage of straight ticket Democratic votes cast 

by blacks in Harris County. TR. at 3-322. Also, in claim- 
ing that “[r]ace also consistently outweighed party affilia- 

tion in district judge elections in Harris County,” Peti- 

tioners cite as proof the alleged fact that every white De- 

mocratic incumbent judge was reelected in 1986 while 

every black Democratic incumbent district judge lost the 
same election, Petition at 11. In fact, only one incumbent 

black Democratic district judge ran (and lost) a contested 

race in 1986 (newly appointed Judge Matthew Plummer), 

while two incumbent black judges ran uncontested races 

and won—Judges Thomas Routt and Jon Peavy. Exh. 

DW-1. Furthermore, although the percentage of black dis- 

   



9 

trict judges currently sitting on the bench in Harris County 

is 5.1% of the total population of Harris County, as 

Petitioners state, blacks constitute only 3.8% of the at- 

torneys in Harris County constitutionally qualified to run 

for state district judge.” Exh. D-4; R. 198. Thus, all 
of the facts which Petitioners cite to support their claim 

to have demonstrated “extreme racial polarization” in 

Harris County are either incorrect or manipulated. 

Behind the HL A’s Petition for Writ of Certiorari and 

not mentioned in that Petition, which properly focuses 

on statutory coverage, is an equally serious issue not 

reached by the Court of Appeals, of the proper standard 

of proof of vote dilution in partisan races. While the 

HILA’s Petition poses a highly important statutory ques- 

tion, it is inaccurate and unfair to permit that question to 

be posed in the context of a seriously flawed statement 

of purported facts, which is actually designed to show 

that this case was correctly decided under the leading vote 

dilution case, Thornburg v. Gingles, 478 U.S. 30 (1986). 

At trial Petitioners and Respondents urged and used 
different standards of proof of vote dilution. Peti- 
tioners confined their proof of alleged vote dilution 

in the target counties almost exclusively to two types 
of statistical proof — bivariate regression analysis and 

homogeneous precinct or “extreme case” analysis — which 

they used to show that in certain selected black/white 

races support for black judicial candidate rose as the per- 

7. Judge Wood contended below that under the legal principle 
adopted by this Court in analogous Title VII cases, the relevant 
standard for measuring minority electoral success for an office open 
to only a small percentage of the electorate is the percentage of 
eligible candidates, not voters. Wards Cove Packing Co. v. Atonio, 
109 S. Ct. 2115 (1989) and City of Richmond v. J. A. Croson Co., 
109 S. Ct. 706 (1989).  



  

10 

centage of blacks in the precinct rose.® They excluded 
as irrelevant and prejudicial all evidence of actual practi- 

cal local factors affecting the outcome of judicial races. 

By contrast, the Defendants’ statistical expert, Dr. Del- 

bert Taebel, analyzed the actual factors in Texas judicial 
races, relying for his statistical analysis on multivariate 

regression analysis, which factors political affiliation, as 

well as race, into the analysis of electoral results. Using 

this approach, Dr. Taebel established in undisputed testi- 

mony that Harris County voting is very competitive be- 

tween Democrats and Republicans and election results 

are unpredictable. TR. 5-226. In addition, Judge Mark 

Davidson offered expert testimony on a race-by-race and 

election-by-election basis as to the totality of circum- 

stances, which led to his conclusion that race was a rela- 

tively unimportant variable in Harris County judicial 

elections. Both Defendants’ experts testified to the follow- 

ing factors: There is extensive straight-party voting. TR. 

5-183; TR. 5-228. The swing voters, who constitute only 

10-20% of the judicial voters, are a critical factor and 

vote in a variety of different ways. TR. 5-228-229. How- 

ever, swing voting in Harris County has virtually nothing 

to do with race. TR. 5-232-233. The district court adopted 

the Plaintiffs’ standard of proof and expressly rejected the 

Defendants’ standard of proof and evidence as “irrele- 

vant.” Pet. app. at 222a, 

8. Races where black Republicans won or lost without the support 
of the black community, largely because of straight ticket voting, 
were trteated as anomalies and ignored. 

   



CC
 

) 
—d

 

11 

REASONS FOR DENYING THE WRIT 

I. THE CLAIM THAT §2(b) OF THE VOTING 

RIGHTS ACT APPLIES TO STATE DISTRICT 

JUDGES HAS BEEN RESOUNDINGLY RE- 

JECTED BY THE FIFTH CIRCUIT EN BANC. 

This case has been fully briefed and argued below and 

was carefully considered and decisively ruled upon en 

banc by the Fifth Circuit Court of Appeals. The over- 
whelming consensus of that Court—which is perhaps this 
country’s leading Court of Appeals in interpreting civil 

rights cases—is that state district judicial elections are 

beyond the scope of § 2(b) of the Voting Rights Act. 

Since the Court of Appeals had before it a full and com- 

plete record, since all constitutional and statutory issues 

have been fully explored by that Court en banc, and since 

the Court has overwhelmingly held that the statute does 

not apply and has set forth its reasons, there is no need 

for this Court to reconsider the same question that the 

Fifth Circuit has so resoundingly answered. 

The Court should note and reject Petitioners’ facile rep- 

resentation that “Section 5 and Section 2 have traditionally 

been interpreted to have concurrent application.” That is 

untrue. In South Carolina v. Katzenbach, 383 U.S. 301, 

316 (1966) a Section 5 case, Chief Justice Warren care- 

fully avoided that very question; and in Senate Report 

97-417, Congress stated that an analogy between Sections 

2 and 5 of the Voting Rights Act is “fatally flawed for 

several reasons.” S. Rep. 97-417 at 42, 1987 U.S. Cong. 

& Admin. News at 177, 219-220. Judge Wood will dis- 

cuss these issues more fully in response to the Petition for 
Writ of Certiorari filed by the original Plaintiffs.  



  

12 

II. IF THE COURT GRANTS CERTIORARI TO 

REVIEW THE APPLICATION OF § 2 OF THE 

VOTING RIGHTS ACT TO THE JUDICIARY, 

IT SHOULD GRANT CERTIORARI IN THIS 

CASE AND DENY CERTIORARI IN CHISOM 

V. ROEMER. 

Petitioners have rushed to seek certiorari in Chisom v. 

Roemer, a § 2 case from Louisiana raising, like LULAC, 

the issue of the applicability of § 2 of the Voting Rights 

Act to judicial elections.’ See Petition at 14. Chisom was 

the only other § 2 judicial election case to have been 

decided by the Fifth Circuit before LULAC. Chisom v. 

Roemer, 839 F.2d 1056 (5th Cir. 1988). It was expressly 

overruled by LULAC. This Court previously denied cer- 

tiorari in Chisom, 488 U.S. , 109 S. Ct. 390 (1988). 

Nothing new has been added to the Chisom record which 

would justify this Court’s granting the Petition for Writ 

of Certiorari it previously denied. Since Chisom has been 

decisively overruled by the Fifth Circuit en banc and the 

case on remand was dismissed on the authority of LULAC, 

this Court should review LULAC if it reviews either case. 

It should not review Chisom and thereby complicate pre- 

sentation of LULAC. 

  

III. IF THE COURT GRANTS CERTIORARI IN 

THIS CASE IT SHOULD REVIEW ALL THE 

ISSUES RAISED OR REMAND UNREACHED 

STANDARD OF PROOF AND LEGAL ISSUES. 

This case presents three vital questions, each of which 

has both statutory and Constitutional implications. The 

9. The same national counsel represented Plaintiffs in LULAC 
and Chisom. 

   



13 

first two are variants on the same question: (1) whether 

§ 2(b) applies to state judicial elections at all and (2) 

whether § 2 applies to the election of judges to independ- 

ent benches of general jurisdiction; the third asks whether 

a standard of proof of vote dilution is proper if it excludes 

as “legally incompetent” virtually all evidence of the 

actual local factors operative in judicial elections and 

determines the existence of discrimination solely on the 

basis of statistical evidence of minority losses. The Fifth 

Circuit answered both of the first two of these questions 

affirmatively. Since it held that § 2 does not apply to 

judicial elections, it failed to reach the third issue. If this 

Court affirms the Court of Appeals, this issue will have 

to be resolved later. If, however, the Court should reverse 

and decline to review this important third issue it will 

remain an unresolved issue which should be addressed 

in some fashion. Respondent Judge Wood therefore urges 

the Court at least to review, if not to decide, the standard 

of proof issue if it decides to grant certiorari in this case. 

She has therefore listed in the Appendix at 8a additional 

questions presented in the case which were not reached 

by the Fifth Circuit 

Similarly, the subsidiary issues which have been briefed 

and argued below will require resolution should this case 

be reviewed. For example, the question whether the 

principle of one-man, one-vote applies to judicial elec- 

tions is integral to this case and has already shown its 

practical significance. Although § 2 derives its legitimacy 

from the fourteenth and fifteenth amendments to the 

United States Constitution, and although the principle 

of one-man, one-vote was first enunciated and applied to 

the election of “representatives” in Reynolds v. Sims, 377 

U.S. 533, 84 S. Ct. 1362 (1964), a fourteenth amend-  



  

14 

ment and vote dilution case, both the Plaintiffs and the 

district court, on the authority of Wells v. Edwards, 347 

F. Supp. 433 (M.D. La. 1972) aff'd, 409 U.S. 1095, 

93 S. Ct. 904 (1973), denied that the principle of one- 

man, one-vote applies to judicial elections. They thus felt 

free to devise a remedial plan, for instance, which assigned 

two state judicial judges to each minority/Democratic dis- 

trict and one to each white/Republican district. Judge 

Wood sees a clear fourteenth amendment problem in that 

“solution.” Indeed, one wonders how § 2 vote dilution can 

be measured at all if one man, one vote does not require 

essentially equal numbers of voters in judicial electoral 

districts, if only for comparative purposes.'® The subsidiary 

issues raised below, therefore, should either be addressed 

by this Court if it decides to grant certiorari or made the 

subject of remand. 

CONCLUSION 

For the foregoing reasons, Respondent Harris County 

District Judge Sharolyn Wood requests that the Court 

deny the Houston Lawyers’ Association’s Petition for Writ 

of Certiorari or, in the alternative, that it grant certiorari 
to determine only those issues, and all of those issues 

which are properly presented by the record in this case. 

10. Judge Wood agrees that the principle of one-man, one-vote 
does not apply to judicial elections—but only because judges are 
servants of the people, not representatives, and judicial districts there- 
fore are not drawn to ensure equal representation of racial groups 
but to equalize case load and promote the fair and efficient adminis- 
tration of justice. 

   



is 

Respectfully submitted, 

J. EUGENE CLEMENTS 
PORTER & CLEMENTS 
3500 NCNB Center 

700 Louisiana Street 
Houston, Texas 77002-2730 
Telephone: (713) 266-0600 
Facsimile: (713) 228-1331 

Attorney of Record for 
Respondent Harris County District 
Judge Sharolyn Wood 

Of Counsel: 

EVELYN V. KEYES 
PORTER & CLEMENTS 
700 Louisiana, Suite 3500 
Houston, Texas 77002-2730 
Telephone: (713) 226-0600 
Facsimile: (713) 228-1331 

MicHAEL J. WooD 
Attorney at Law 
440 Louisiana, Suite 200 
Houston, Texas 77002 
Telephone: (713) 228-5101 
Facsimile: (713) 223-9133 

 





la 

APPENDIX 

§ 7. Judicial Districts, District Judges; terms or sessions; 

absence, disability or disqualification of Judge 

Sec. 7. The State shall be divided into judicial dis- 

tricts, with each district having one or more Judges as 

may be provided by law or by this Constitution. Each 

district judge shall be elected by the qualified voters at a 

General Election and shall be a citizen of the United 

States and of this State, who is licensed to practice law 

in this State and has been a practicing lawyer or a Judge 

of a Court in this State, or both combined, for four (4) 

years next preceding his election, who has resided in the 

district in which he was elected for two (2) years next 

preceding his election, and who shall reside in his district 

during his term of office and hold his office for the period 

of four (4) years, and who shall receive for his services 

an annual salary to be fixed by the Legislature. The 

Court shall conduct its proceedings at the county seat 

of the county in which the case is pending, except as 

otherwise provided by law. He shall hold the regular terms 

of his Court at the County Seat of each County in his 

district in such manner as may be prescribed by law. The 

Legislature shall have power by General or Special Laws 

to make such provisions concerning the terms or sessions 

of each Court as it may deem necessary. 

The Legislature shall also provide for the holding of 

District Court when the Judge thereof is absent, or is 

from any cause disabled or disqualified from presiding.  



  

2a 

§ 7a. Judicial Districts Board; reapportionment 

of judicial districts 

Sec. 7a. (a) The Judicial Districts Board is created 

to reapportion the judicial districts authorized by Article 

V, Section 7, of this constitution. 

(i) The legislature, the Judicial Districts Board, or 

the Legislative Redistricting Board may not redistrict the 

judicial districts to provide for any judicial district smaller 

in size than an entire county except as provided by this 

section. Judicial districts smaller in size than the entire 

county may be created subsequent to a general election 

where a majority of the persons voting on the proposition 

adopt the proposition “to allow the division of 

County into judicial districts composed of parts of 

County.” No redistricting plan may be pro- 

  

  

posed or adopted by the legislature, the Judicial Districts 

Board, or the Legislative Redistricting Board in antici- 

pation of a future action by the voters of any county. 

   



3a 

§ 1973c. alteration of voting qualifications and pro- 

cedures; action by State or political subdivision 

for declaratory judgment of no denial or 

abridgement of voting rights; three-judge dis- 

trict court; appeal to Supreme Court 

Whenever a State or political subdivision with respect 

to which the prohibitions set forth in section 1973b(a) 

of this title based upon determinations made under the 

first sentence of section 1973b(a) of this title are int 

effect shall enact or seek to administer any voting quali- 

fication or prerequisite to voting, or standard, practice, 

or procedure with respect to voting different from that 

in force or effect on November 1, 1964, or whenever 

a State or political subdivision with respect to which the 

prohibitions set forth in section 1973b(a) of this title 

based upon determinations made under the second sent- 

ence of section 1973b(b) of this title are in effect shall 

enact or seek to administer any voting qualification or 

prerequite to voting, or standard, practice, or procedure 

with respect to voting different from that in force or effect 

on November 1, 1968, or whenever a State or political 

subdivision with respect to which the prohibitions set 

forth in section 1973b(a) of this title based upon de- 

terminations made under the third sentence of section 

1973b(b) of this title are in effect shall enact or seek to 

administer any voting qualification or prerequisite to 

voting, or standard practice, or procedure with respect 

to voting different from that in force or effect on No- 

vember 1, 1972, such State or subdivision may institute 

an action in the United States District Court for the 

District of Columbia for a declaratory judgment that 

such qualification, prerequisite, standard, practice, or pro- 

cedure does not have the purpose and will not have the  



  

4a 

effect of denying or abridging the right to vote on account 

of race or color, or in contravention of the guarantees 

set forth in section 1973b(f) (2) of this title, and unless 

and until the court enters such judgment to person shall 

be denied the right to vote for failure to comply with 

cedure: Provided, That such qualification, prerequisite, 

cedure: Provided, That such qualification, prerequisite, 

standard, practice, or procedure may be enforced with- 

out such proceeding if the qualification, prerequisite, 

standard, practice, or procedure has been submitted by 

the chief legal officer or other appropriate official of 

such State or subdivision to the Attorney General and the 

Attorney General has not interposed an objection within 

sixty days after such submission, or upon good cause 

shown, to facilitate and expedited approval within sixty 

days after such submission, the Attorney General has 

affirmatively indicated that such objection will not be 

made. Neither an affirmative indication by the Attorney 

General that no objection will be made, nor the Attorney 

General's failure to object, nor a declaratory judgment 

entered under this section shall bar a subsequent action 

to enjoin enforcement of such qualification, prerequisite, 

standard, practice, or procedure. In the event the At- 

torney General affirmatively indicates that no objection 

will be made within the sixty-day period following receipt 

of a submission, the Attorney General may reserve the 

right to reexamine the submission if additional informa- 

tion comes to his attention during the remainder of the 

sixty-day period which would otherwise require objection 

in accordance with this section. Any action under this 

section shall be heard and determined by a court of three 

judges in accordance with the provisions of section 2284 

of Title 28 and any appeal shall lie to the Supreme Court. 

   



5a 

AMENDMENT XIV—CITIZENSHIP; PRIVILEGES 

AND IMMUNITIES; DUE PROCESS; EQUAL PRO- 

TECTION; APPORTIONMENT OF REPRESENTA- 

TION; DISQUALIFICATION OF OFFICERS; PUB- 

LIC DEBT; ENFORCEMENT 

Materials for the Due Process Clause of Sectionl are set 

out in this volume and the following volume. See pre- 

ceding volume for materials pertaining to the Citizen- 

ship and Privileges and Immunities Clauses of that 

section and the volume containing the end of the Con- 

stitution for materials pertaining to the Equal Protec- 

tion Clause of that section and Sections 2 to 5. 

Section 1. All persons born or naturalized in the United 

States, and subject to the jurisdiction thereof, are citizens 

of the United States and of the State wherein they reside. 

No State shall make or enforce any law which shall 

abridge the privileges or immunities of citizens of the 

United States; nor shall any State deprive any person of 

life, liberty, or property, without due process of law; nor 

deny to any person within its jurisdiction the equal pro- 

tection of the laws. 

Section 2. Representatives shall be apportioned among 

the several States according to their respective numbers, 

counting the whole number of persons in each State, ex- 
cluding Indians not taxed. But when the right to vote at 
any election for the choice of electors for President and 

Vice President of the United States, Representatives in 
Congress, the Executive and Judicial officers of a State, or 

the members of the Legislature thereof, is denied to any 

of the male inhabitants of such State, being twenty-one 

years of age, and citizens of the United States, or in any 

way abridged, except for participation in rebellion, or  



  

  

  

6a 

other crime, the basis of representation therein shall be 
reduced in the proportion which the number of such male 

citizens shall bear to the whole number of male citizens 

twenty-one years of age in such State. 

Section 3. No person shall be a Senator or Representa- 

tive in Congress, or elector of President and Vice Presi- 
dent, or hold any office, civil or military, under the United 

States, or under any State, who, having previously taken 

an oath, as a member of Congress, or as an officer of the 

United States, or as a member of any State legislature, or 

as an executive or judicial officer of any State, to support 

the Constitution of the United States, shall have engaged 

in insurrection or rebellion against the same, or given aid 
or comfort to the enemies thereof. But Congress may by 

a vote of two-thirds of each House, remove such disability. 

Section 4. The validity of the public debt of the United 

States, authorized by law, including debts incurred for 

payment of pensions and bounties for services in suppress- 

ing insurrection or rebellion, shall not be questioned. But 

neither the United States nor any State shall assume or 

pay any debt or obligation incurred in aid of insurrection 
or rebellion against the United States, or any claim for 

the loss or emancipation of any slave; but all such debts, 

obligations and claims shall be held illegal and void. 

Section 5. The Congress shall have power to enforce, 

by appropriate legislation, the provisions of this article. 

   



Ta 

AMENDMENT XV—UNIVERSAL MALE SUFFER- 
AGE 

Section 1. The right of citizens of the United States to 

vote shall not be denied or abridged by the United States 

or by any State on account of race, color, or previous con- 

dition of servitude. 

Section 2. The Congress shall have power to enforce 

this article by appropriate legislation. 

 



  

  

8a 

OTHER QUESTIONS PRESENTED 

Whether the concept of one-man, one-vote applies to 

judicial elections? 

Whether the eligible pool of minority lawyers or that 

of minority voters is the appropriate reference point 

for measuring minority success in judicial elections? 

Whetker two of the three threshold Gingles factors 

in vote dilution cases—racially polarized voting and 

white racial bloc voting—are proved by abstract 

statistical inquiry, with all other inquiry into the 

actual local factors determining the results of elec- 

tions being irrelevant? 

Whether a court-ordered remedial plan for vote dilu- 

tion that assigns two judges to each minority/major- 

ity district and one judge to each white/majority 
district violates the fourteenth and fifteenth amend- 

ments to the United States Constitution?