League of United Latin American Citizens (LULAC) v. Mattox Brief Amicus Curiae on Remand from the Supreme Court

    IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

LATIN AMERICAN CITIZENS

JIM MATTOX

L FROM THE UNITED STATES 
FOR THE WESTERN DISTRICT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE 
. , • ON REMAND FROM THE SUPREME COURT

JOHN R. DUNNE
Assistant Attorney General

JESSICA DUNSAY SILVER 
MARK L. GROSS 

Attorneys
Department of Justice 
P.O. BOX 66078 
Washington, D.C 
(202) 514-2172

20035-6078

li It

V>7-'
‘ •'TJVV*

Tyw/’



TABLE OF CONTENTS

INTEREST OF THE UNITED STATES 
SUMMARY OF ARGUMENT .... 
ARGUMENT:

THE DISTRICT COURT MUST DETERMINE 
WHETHER AT-LARGE ELECTION OF TRIAL 
JUDGES IN TEXAS IS SUBSTANTIALLY 
RELATED TO A STRONG GOVERNMENTAL 
INTEREST, AND WHETHER THE WEIGHT OF THAT 
INTEREST IS SUFFICIENT TO OVERCOME THE 
EXTENT OF PROVEN DILUTION .........

A. Congress Has Determined That
Proof That An Electoral Process 
Advances Legitimate State 
Interests Is Insufficient To 
Maintain A Process Which Results 
In Dilution .........

II.

B. When Asserting the Strength of 
the State's Interest, The Court 
Should Determine Whether it Has 
Been Consistently Applied and 
Whether There Are Alternative 
Methods Of Election Which May 
Advance The State's Interest But 
Result In Less Dilution ....

THE CASE SHOULD BE REMANDED FOR 
CONSIDERATION OF THE STATE'S INTEREST 
UNDER THE CORRECT STANDARD ....

A. The Importance Of The State's
Interest Is An Issue Of Fact To 
Be Assessed By The District Court 
As Part Of The Totality of 
Circumstances ...........

B. The Record Does Not Permit Only
The Conclusion That The State Has 
A Strong Interest In Its Method 
of Electing Trial Judges ......

CONCLUSION ......

- l -

1
1

PAGE

3

3

8

10

11

13
20



TABLE OF AUTHORITIES
CASES:
g-Q-lden v * City of Mobile. 571 F.2d 238 (5th Cir.1978) ...............................

Bradley v. Swearingen. 525 S.W.2d 289 (Tex. Civ.App. 1975) ....................................

Chisom v. Edwards, 839 F.2d 1056, cert, denied, 488 
U.S. 955 (1988) .................................

chisom v - Roemer. Ill S. Ct. 2354 (1991) .........
Clark v. Jeter. 486 U.S. 456 (1988) ..............
Gregory v. Ashcroft. I l l  s .  Ct. 2 3 9 5  ( 1 9 9 1 )  ......
Hendrix v. Joseph. 559 F.2d 1265 (5th Cir. 1977) ..
Houston Lawyers Ass'n v . Attorney General of Tevas. 

Ill S. Ct. 2376 (1991) ...... ........... .......[
Icicle Foods v. Worthington. 475 U.S. 709 (1986) ..

i?61971^n V * ~grniqari/ 467 S.W . 2d 621 (Tex. Civ. App.

LULAC v. Clements, 902 F.2d 293 (5th Cir. 1990) ...
&artm v . Ajjain, 658 F. Supp. 1183 (S.D. Miss.1987) ............................

Clipper v. U-Haul Co. . 516 S.W.2d 470 .............
On; v. Orr/ 440 U.S. 268 (1979) ..................
Pickett v. Brown. 462 U.S. 1 (1987) ..............
Pullman Standard v. Swint, 456 U.S. 273 (1982)
Robinson v. Comm'rs Court Anderson Countv. 505 F.2d 

674 (5th Cir. 1974) .............................
Borers v. Lodge. 458 U.S. 613 (1982) .............
South Carolina v. Katzenbach. 383 U.S. 301 

(1966) ..................................

Thornburg v. Singles. 478 U.S. 30 (1986) .........

3

14

9

8
6 ,  9 

8 
9

1 , 6 , 11, 
1 2 ,  19 
11

14

19

14

14

10, 11 
9

11

3

7

3

passim

PAGE

- ii



CASES (cont'd^; PAGE
Wallace v. House, 515 F.2d 619 (5th Cir. 1975), vac. 

on other grounds, 425 U.S. 947 (1976) .... 4
Wengler v. Druqqists Mutual Ins. Co. , 4 4 6 U.S. 1 4 p(1980) ...............
Whitcomb v. Chavis. 408 u.s. too. (1971) ..........

y

5
White v. Reqester. 412 U.S. 7ss (1973) ........... 5
Z_jmmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) 

aff'd sub nom, East Carroll Parish v. Marshall.
424 U.S. 636 (1976) ...... O  T  A

Zulauf v. State, 591 S.W.2d 869 
1979) .............. (Tex. Crim. App.

t / 4

CONSTITUTION AND STATUTES:

1 4

Texas Constitution, Article V 
Section 7a (i) (1985) .......
Section 18(a) (1985) ...... l  o  

1 *7
Voting Rights Act of 1965, as amended, 42 U.S.C. 

1973, Section 2 ............
1 /

Age Discrimination in Employment 
U.S.C. 621 et seq......... Act of 1967, 29

passim

n

MISCELLANEOUS:
/

Fed. R. Civ. P. 52(a) ........

S. Rep. No. 417, 97th Cong., 2d Sess. (1982) . 3, 4, 5, 
12

iii



IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 90-8014
LEAGUE OF UNITED LATIN AMERICAN CITIZENS, et al.,

Plaintiffs-Appellees 
v.

JIM MATTOX, et al. ,

Defendants-Appellants

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

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE 
ON REMAND FROM THE SUPREME COURT

INTEREST OF THE UNITED STATES
This case addresses the application of the dilution analysis 

of Section 2 of the Voting Rights Act of 1965, as amended, 42 
U.S.C. 1973, to elected trial court judges. The United States 
has primary responsibility for enforcement of Section 2, and this 
Court's decision will be important to those responsibilities.
The United States filed amicus briefs in this case before a panel 
of this Court and before the en banc Court, and presented oral 
argument before the en banc Court.

SUMMARY OF ARGUMENT
Houston Lawyers,., Ass'n v. Attorney General of Texas, m  s. 

Ct. 2376 (1991), holds that a state's interest in its method of 
electing trial court judges is a factor which a court must 
consider under the "totality of circumstances" test for judging 
vote dilution. The issues before this Court involve how to 
consider the state's interest within that framework.



2
When Congress amended Section 2 in 1982, it established that 

elimination of racially dilutive electoral systems was of such 
importance that electoral systems supported by race-neutral and 
legitimate governmental interest nonetheless must be abandoned in 
favor of systems which do not dilute minority voting. Congress 
relied in large measure on this Court's opinion in Zimmer v. 
McKeithen, 485 F.2d 1297, 1305 (5th Cir. 1973), aff'd sub nom. 
gast Carroll Parish School Bd. v. Marshall. 424 U.S. 636 (1976), 
which stated that courts should determine whether the state's 
electoral scheme is supported by "strong" state interests before 
weighing that interest against proof of dilution. With respect 
to elected judges, the state must show that its electoral system 
advances "strong" state interests; only after that is proven, may 
the court weigh those interests against the extent of dilution.

The plaintiff has the burden of proving dilution. At the 
same time, however, proof of dilution creates a presumption that 
the electoral system should not stand. The state has the burden 
of rebutting that presumption with evidence of a strong state 
interest which justifies the dilution. The plaintiff may rebut 
the state's proof with evidence demonstrating that the interests 
are not strong because, for example, the electoral schemes are 
not consistently applied, or that interest can be advanced 
through an alternative electoral system. If the court concludes 
that the state interest is strong, it must then weigh it against 
proven dilution under the totality of circumstances standard.



3
ARGUMENT

I
THE DISTRICT COURT MUST DETERMINE WHETHER AT-LARGE ELECTION 

OF TRIAL JUDGES IN TEXAS IS SUBSTANTIALLY RELATED TO A STRONG 
GOVERNMENTAL INTEREST, AND WHETHER THE WEIGHT OF THAT INTEREST 

IS SUFFICIENT TO OVERCOME THE EXTENT OF PROVEN DILUTION
A. Congress Has Determined That Proof That An Electoral 

Process Advances Legitimate State Interests Is 
Insufficient To Maintain A Process Which Results In Dilution

When enacting and amending the Voting Rights Act, Congress 
determined that the elimination of voting discrimination and
racially unfair voting practices is vital to remedying the 
effects of decades of racial discrimination. South Carolina v. 
Katzenb^ch, 383 U.S. 301, 315 (1966). In describing the results 
test, the Senate Report, accompanying the 1982 Amendments, stated 
that an electoral scheme supported by "legitimate" state 
interests nonetheless must be altered where its use results in' ■ 
the dilution of minority voting strength. "[E]ven a consistently 
applied practice * * * would not negate a plaintiff's showing 
through other factors [derived from Zimmer v. McKeithen- 485 F.2d 
1297 (5th Cir. 1973), aff'd sub nom. East Carroll Parish v. 
Marshall, 424 U.S. 636 (1976)] that the challenged practice 
denies minorities fair access to the [electoral] process." S. 
Rep. No. 417, 97th Cong., 2d Sess. 29, n.117 (1982).

A number of the cases the Senate Report cited (id. at 32) , 
as examples of proper application of the dilution inquiry, 
invalidated voting procedures despite the fact that these 
procedures advanced legitimate governmental aims. See, e.a.. 
Robinson v. Commissioner's Court Anderson Countv. 505 F.2d 674, 
680 (5th Cir. 1974). In Bolden v. City of Mobile. 571 F.2d 238,



4
244 (5th Cir. 1978), for example, this Court stated that while 
"tcJity-wide representation is a legitimate interest * * * the 
district court was warranted in finding that the city's interests 
in its at-large plan did not outweigh the strong showings by the 
appellees under the other Zimmer criteria." Zimmer itself 
referred to consideration of a "strong state policy divorced from 
the maintenance of racial considerations" (emphasis added), 485 
F.2d at 1305, as a factor a court may consider when assessing 
whether an electoral scheme was dilutive.

The dilutive effect of at-large elections on minority voting 
strength was of considerable importance to Congress in 1982. 
Congress knew that many localities had enacted at-large systems 
for legitimate governmental reasons, and no one disputed that 
there was legitimate governmental support for at-large elections, 
see Wallace v. House, 515 F.2d 619, 633 (5th Cir. 1975), vacated 
on other grounds, 425 U.S. 947 (1976), and explicitly relied on a 
list of 23 lower court decisions that applied dilution 
principles. S. Rep. No. 417, supra, at 32. All involved 
legislative or executive positions, and the courts held that even 
where race-neutral grounds for the at-large elections were 
asserted, where the electoral scheme was dilutive, single-member 
districting was required.

In applying Section 2 to the election of judges, however, 
analysis should be informed, by the fact that the role of judges 
differs from those of legislative and executive officials. In 
balancing the strength of race-neutral state policies against 
evidence of vote dilution under the "totality of circumstances," 
it is obviously pertinent to consider the nature of the office at



5
issue. The most obvious difference is that while legislators, 
and, perhaps to a lesser extent, executive officials are expected 
to advance and protect the interest of their constituents, and 
are elected to do just that, judges are expected to be fair and 
impartial. Thus, "responsiveness" to minority voters is not a 
relevant concern in evaluating judicial elections.

The important state interest in ensuring a fair and 
impartial judiciary must also be carefully considered in 
evaluating a state's decision to elect judges at-large. The 
State may believe that judges should be discouraged from thinking 
of themselves as representing only a portion of a particular 
jurisdiction. In addition, a state may determine that small 
electoral districts must be avoided in order to prevent a 
relatively discrete segment of the jurisdiction from controlling 
the election of judges. A state may determine that fairness, ' - 
impartiality, and public confidence are significantly aided where 

PeoPle who may generally appear before a particular judge 
have a voice in the election of that judge. Considering the 
State's interest —  which may be different in both nature and 
magnitude for the at-large election of judges than the at-large 
election of legislators —  is therefore consistent with the 
principle in the case law and legislative history 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. Ginqles. 478 U.S. 30, 45 (1986) (quoting 
S. Rep. No. 417, supra, at 30 & n.120). See White v. Reaester.
412 U.S. 755, 766-767 (1973); Whitcomb v. Chavis. 403 U.S. 124,



6
149-155 (1971).

Although state interest in at-large elections must be given 
greater consideration with respect to judicial elections, it

need be considered only if such elections are necessary to 
maintain this fundamental nature of the judicial offices. 
Therefore, in order for the state's interest in electing its 
judges at-large to be weighed against proof of dilution, a state 
or locality must show that its practice is supported by "strong" 
or compelling," not merely "legitimate," governmental aims.

The method the Supreme Court employs to review state 
interests when it applies mid-level constitutional scrutiny 
provides some guidance in determining whether the state has 
demonstrated a strong interest in its method of electing judges. 
The substantive measure exacted in mid-level constitutional 
scrutiny whether a state has established that its practice is 
"substantially related to an important governmental interest,"

v * — ter' 486 U *S. 456, 461 (1988) —  provides guidance on 
the inquiry the Court makes to determine whether a state has a 
governmental interest greater than "legitimate."

Unlike the inquiry in mid-level scrutiny, however, even were 
the state to prove that its interest is strong, and that its 
method of election is substantially related to that strong 
interest, the state's interest does not automatically prevail 
under Section 2, but rather is to be assessed as one of the 
factors in the totality of the circumstances. As the Supreme 
Court stated in Houston Lawyers Ass'n (ill s. Ct. 2376, 2381 
(1991) ; emphasis added), "Because the State's interest in 
maintaining an at-large, district-wide electoral scheme for



7
single-member offices is merely one factor to be considered in 
evaluating the 'totality of circumstances,' that interest rinoc; 
not automatically, and in every case, outweigh proof of racial 
vote dilution.'1' As the analysis and weighing of the totality of 
circumstances requires "an intensely local appraisal," Gincrles. 
478 U.S. at 79 (quoting Rogers v. Lodge. 458  U.S. 6 1 3 ,  622 

( 1 9 8 2 ) ), no simple rule will govern all factual records.
The State asserts, based on Gregory v. Ashcroft. Ill s .  Ct. 

2 3 9 5  ( 1 9 9 1 ) ,  that its method of electing judges is protected from 
federal intrusion by doctrines of federalism; because Congress 
failed to specify that the dilution test of Section 2 applies to 
judges, the State asserts, Congress has left undisturbed the 
state's constitutional prerogatives respecting the choice of 
electoral schemes for judges, and so its choice of electing 
judges at-large necessarily survives scrutiny. Gregory offers- - 
the state no protection here. In Gregory, the Court held that 
Congress, when it amended the Age Discrimination in Employment 
Act to include public employees' did not unambiguously state its 
intention to reach the retention of state judges. That sort of 
ambiguity is not present in the Voting Rights Act, however. The 
Voting Rights Act is clearly intended to affect state 
prerogatives on the method of electing all public officials, 
including judges. The Supreme Court's decision in Chisom v. 
Roemep, ill s .  Ct. 2354  ( 1 9 9 1 ) ,  specifically held that Congress 
intended the dilution test to apply to all elected officials, 
including elected judges. It is Chisom and the Supreme Court's 
decision here which govern.



8
B. When Assessing The Strength Of The State's Interest,

The Court Should Determine Whether It Has Been 
Consistently Applied And Whether There Are Alternative 
Methods Of Election Which May Advance The State's 
Interest But Result In Less Dilution.

In a voting case such as this one, once the state proves 
that the at-large method of election of trial judges is 
substantially related to strong state interests, the plaintiffs 
may show either that the state does not consistently advance that 
interest in all areas of state law, suggesting that the interest 
is not so substantial as the state now asserts, or that the 
interest, even if it is strong and consistently maintained, may 
be achieved by electoral methods which do not dilute minority 
voting strength.-1/ Plaintiffs may demonstrate that the state's 
interest is not consistently honored in state laws or practices, 
suggesting that it is not a strong interest.-2/ For example, in 

v * 5̂ ter, supra, a Pennsylvania statute provided that an" • 
illegitimate child, before seeking support from the father, must 
file a paternity action, and that all such paternity actions 
ordinarily must be brought within six years of birth. The 
Supreme Court held, inter alia, that Pennsylvania officials 
failed to show that the six year statute of limitations was 
substantially related to the state's interest in "avoiding the 
litigation of stale or fraudulent claims," id. at 464, citing a

„ . JVld®nce that the at-large system was only recently adopted
would undercut a state's assertion that its method advances a 
strong state interest. See, e.q., Hendrix v. Joseph. 559 F.2d
prove till ihth Jrlr:.1977)• In addition, where a plaintiff can prove that the adoption or maintenance of the state's electoral 
system was motivated by racial discrimination, the state's 
interest would be due no deference.

^  Administrative convenience is not a strong state interest 
^ n^ler v * Druggists Mutual Ins. Co.. 446 U.S. 142, 152 (1980).



9
number of instances where Pennsylvania law "permits the issue of 
paternity to be litigated more than six years after the birth of 
an illegitimate child." See also Pickett v. Brown. 462 U.S. 1, 
14-15 (1983) , where the Court, using a similar analysis, held 
that Tennessee's statute limiting paternity actions to two years 
a^ter birth as a precondition to a support action for 
illegitimate children, failed because other provisions of state 
law ignored the two-year limit, undercutting the state's argument 
that the limit was important to eliminating fraudulent claims.

In addition, plaintiffs may demonstrate that the state's 
interest may be protected by an alternative electoral scheme that 
reduces or eliminates the dilutive effect on minority voting 
strength. In those instances, the electoral scheme is not 
substantially related to the strong interest. For example, in

v. Orr, 440 U.S. 268 (1979), an Alabama statute provided that 
husbands, but not wives, may be required to pay alimony. The 
state, in defending the statute, asserted that one aim of the Act 
was to provide for needy spouses, and assumed that sex could be 
used as a "proxy" for need. Id^ at 280. The Court, recognizing 
that "assisting needy spouses is a legitimate and important 
governmental objective," nevertheless held the statute 
unconstitutional, noting that there were other means for the 
state to determine which spouses were in fact needy, with little 
added inconvenience to the state. Id̂ _ at 280-282.

For example, even if the state proves both that maintaining 
the linkage between a court's electoral and jurisdictional 
boundaries strongly advances the state's interest in the 
accountability of its judges, and that maintaining such



10
accountability advances other substantial interests, it may be 
that districts smaller than the county-wide districts which now 
exist can be created which will maintain accountability but 
remedy dilution. Only after such proof has been received can the 
court accurately assess the strength of the state's asserted 
interest. If the court finds that the state's interest is strong 
and cannot be achieved in some other way, it should balance that 
interest against proven dilution.

Congress has created a presumption against electoral schemes 
which dilute minority voting strength. For that reason, the 
burden of proving a strong state interest substantially related 
to the practice in question is on the state. Again, that is 
analogous to the state burden under a constitutional analysis.
The state's burden is not met by a simple assertion of interest, 
but must be proven by reliable evidence. After the state's ‘ - 
evidence fully defines its interests, the plaintiffs should be 
given the opportunity to demonstrate that the interest either is 
not sufficiently important, based on the facts of the case, to 
maintain the dilutive practice, or that the interest can be 
achieved in a way which does not result in dilution.

11
THE CASE SHOULD BE REMANDED FOR CONSIDERATION OF 
THE STATE'S INTEREST UNDER THE CORRECT STANDARD

The district court's assessment of the strength of the 
state's interest is largely a question of fact, not of law, 
requiring the district court to make an informed local appraisal 
of the appropriate facts. While the record before this Court, in 
our view, does not permit only the conclusion that the state has 
a strong interest in its method of electing trial judges, see



11
Pullman-Standard v. Swint. 456 U.S. 273, 292 (1982), it is also 
clear that the district court improperly assessed the evidence. 
As this Court defers to findings of fact based on proper legal 
standards, a remand is necessary to permit the district court to 
make an informed assessment about the strength of the state's 
interest. See Icicle Seafoods. Inc, v. Worthington. 475 U.S.
709, 714 (1986). It may also be necessary on remand for the 

court to allow the defendants to introduce evidence 
demonstrating that the State's interests are legitimate and 
important that this defendants did not introduce at trial due to 
the district court's erroneous view of the law. The district 
court should therefore be left free to determine in the first 
instance whether the record should be reopened so that such 
evidence can be adduced.

A. The Importance Of The State's Interest Is An Issue 
Of Fact To Be Assessed By The District Court As Part 
Of The Totality Of Circumstances

The Supreme Court, in its decision in Houston Lawyers Ass'n. 
stated that the state's interest in its method of electing trial 
judges is but one of the factors the district court must assess 
when it determines whether, under the "totality of 
circumstances," the electoral process results in racial dilution. 
The Court stated, "We deliberately avoid any evaluation of the 
merits of the concerns expressed in Judge Higginbotham's 
concurring opinion because we believe they are matters that are 
relevant either to an analysis of the totality of the 
circumstances that must be considered in an application of the 
results test embodied in §2, as amended, or to a consideration of 
possible remedies in the event a violation is proved * * *



12
111 S. Ct. at 2380. The Court further explained, "[T]he State's 
interest in maintaining an electoral system —  in this case, 
Texas' interest in maintaining the link between a district 
judge's jurisdiction and the area of residency of his or her 
voters is a legitimate factor to be considered by courts among 
the "totality of circumstances" in determining whether a §2 
violation has occurred." id. at 2381.

In Thornburg v. Singles, 478 U.S. 30 (1986), the Supreme 
Court stated that the determination of the "totality of 
circumstances" is a finding of fact subject to the "clearly 
erroneous" standard of appellate review. "We reaffirm our view 
that the clearly erroneous test of Rule 52(a) is the appropriate 
standard for appellate review of a finding of vote dilution."
478 U.S. at 79. The Court noted the importance of the "intensely 
local appraisal" and "searching practical evaluation of the 'past 
and present reality'" (ibid., quoting S. Rep. No. 417, surra. at 
30) the district courts perform when they determine whether, and 
to what extent, a particular plan dilutes minority voting 
strength. Id_̂  at 79. Thus, a district court's finding about the 
importance of that interest is a finding of fact subject to the 
"clearly erroneous" standard of Fed. R. civ. P. 52(a). "[T]he 
application of the clearly erroneous standard to the ultimate 
findings of vote dilution preserves the benefit of the trial 
court's particular familiarity with the indigenous political 
reality without endangering the rule of law." ibid.

At the same time, the Supreme Court stated that a district 
court's application of incorrect legal standards to its 
assessment of the facts would require a reviewing court to apply



13
a legal error standard. The choice of the standard to evaluate 
the state's interest is certainly a question of law. The Court 
has made clear that the totality of the circumstances test 
applies and that the state interest is one factor to balance 
against proof of dilution. If the district court has used the 
proper legal standard to assess the weight of the state's 
interest, the conclusion it reaches after balancing is factual.

B. The Record Does Not Permit Only The Conclusion
That The State Has A Strong Interest In Its Method 
Of Electing Trial Judges

The interests which the state asserted were advanced by 
linking a judge's jurisdictional and electoral boundaries, were: 
(1) insuring popular accountability by making judges electorally 
responsible to those within their jurisdiction, (2) avoiding bias 
and the appearance of bias caused by small electoral districts, 
and (3) administrative advantages of at-large elections, * -
including the use of specialized courts.

1. At trial, two of defendants' witnesses testified that it 
was important for a trial judge to be "accountable" to all voters 
in the county. Professor Champagne stated that at-large 
elections provided greater accountability of the judge to county 
voters, so that people who feel they were wronged by a particular 
judge may vote against that judge (Tr. 4-143). Texas Supreme 
Court Chief Judge Thomas Phillips asserted that at-large 
elections assured that judges "ought to be accountable to those 
people who can be hailed into their Court" (Tr. 5-120).

Texas does not consistently adhere to this principle, 
however. Texas justice of the peace courts, which are lower 
level trial courts, are elected from sub-county "precincts" while



14
having jurisdiction over the entire county.-2/ in addition, Texas 

c°urts actually have jurisdiction over cases arising 
beyond the county. Parties can, by agreement, give a county 
court venue over a case which does not arise within the county. 
See Nipper v. UrHaul Co., 516 S.W.2d 467, 470 (Tex. Civ. App. 
1974)? Jepnigan v. Jerniaan. 467 S.W. 2d 621 (Tex. Civ. App. 
1971). Accordingly, Texas recognizes that trial judges may have 
jurisdiction over people who do not reside in the county, 
undermining the argument that keeping the electoral and 
jurisdictional areas coterminous is an important state 
interest.4/

Under Texas practice, individuals commonly are before judges 
in counties in which they neither live nor vote. In addition, as 
Chief Judge Phillips acknowledged, in Texas, district court 
judges "often" are called to sit in other counties to help with 
docket control (Tr. 5-120), and the residents of the county in

the subdistrict from which the justice of the peace is 
elected is used for venue purposes, justices of the peace can 
exercise jurisdiction throughout the county. "[A] justice of the
mrec?nc?Ur  S** Jurisdiction.to try a casewhich irose in anotSe? precinct. Bradley v. Swearingen. 525 S.W.2d 280, 282 (Tex Civ 
App. 1975). See also Zulauf v. State. 591 S.W.2d 869, 872 & n 5’ (Tex. Crim. App. 1979). '

7?Itin V: -JIafn', 658.F* SuPP- 1183, 1195-1196 (S.D. Miss.'' the ̂ court adopted a single-member district remedy for some 
Mississippi trial judges who were elected at-large in racially 
dilutive elections,, after finding that Mississippi already 
elected some other judges from areas smaller than the court's 
jurisdiction. The court there stated fid, at 1195):

Although the state has adopted the policy of the 
post system of electing judges in multi-member judicial 
districts above the justice court level, it long ago 
adopted the policy of single-member electoral districts 
for justice court judges. The state also has the 
policy of judges deciding cases which may originate 
outside their election districts.



15
which the judge temporarily sits have no electoral recourse 
against that judge. in practice, many litigants appear before 
district judges over whom they have no electoral control.

In addition, none of the witnesses in this case explained 
precisely why this county-wide "accountability" was an important 
state interest. The witnesses acknowledged that there would 
still be voter "accountability" were judges elected from areas 
smaller than the county (Tr. 4-143). Mr. Champagne acknowledged 
that accountability is not perfect even under the present system; 
he stated that "I think the idea of judicial accountability is a 
Judge who acts improperly will have the [electoral] sword fall.
In reality it doesn't always work that way, of course. And 
sometimes the sword falls on Judges even though there is no 
impropriety" (Tr. 4-141). In our view, the evidence discussed 
above undermines the contention that county-wide "accountability" 
is important to the proper selection of district judges, or that 
insuring a measure of electoral accountability is significantly 
defeated by dividing the county into electoral districts.

Were the state to show that maintaining identical electoral 
and judicial boundaries is a strong state interest, the 
plaintiffs should be permitted to introduce plans which may serve 
that interest and still eliminate, or lessen, the amount of 
dilution of the present system. The Texas Constitution does not 
require the county-wide election of the district judges at issue 
here, but permits the voters to decide to elect them from sub­
county districts. see Tex. Const, art. V, §7a(i) (1985). m
fact, Professor Champagne testified that county lines were used 
to define electoral boundaries for trial judges "simply [because]



16
county Government has been, essentially since the days of the 
Texas Revolution, has been the way that governmental services are 
primarily delivered to people of the State" (Tr. 4-138) 
Accordingly, there may be ways to divide large counties into sub­
county districts, with each sub-county district having its own 
jurisdictional and electoral boundaries, which might lessen the 
extent of dilution the present county-wide system causes. In 
fact, at trial Judge Phillips, asserting opposition to any plan 
which would give a judge a smaller electoral than jurisdictional 
boundary, stated "If we wanted to go to a system where the judge 
had primary venue responsibility over an area smaller than the 
county, I don't know that I would have an objection to electing 
judges from a smaller [area] than a county" (Tr. 5-78)

2. The state and the state district court judges who 
intervened also put on witnesses who testified that creating ‘ - 
subdistricts was inadvisable because it could lead to perceptions 
of judicial bias and undue influence by special interests.-^

The state judges who testified expressed fear of sub-county

In rejecting the weight of the testimony regarding the 
effects of small electoral districts, the district court appears 
to have too narrowly characterized that testimony. The district 
court stated (Op. 75-76), "State Defendants and Defendant- 
Intervenor Wood argued that (1) judges elected from smaller 
districts would be more susceptible to undue influence bv
?hIa21Zed ?ri^e *.* * *" While the testimony at trial did raise the organized crime" possibility, see testimony of District 
Judge Entz at Tr. 4-82-83, it also raised the possibility that 
smaller electoral districts could lead to pressures from other 
sources For example, District Judge Mark Davidson testified

at *east ln Harris County, electing judges from districts 
smailer than county-wide could place more "political pressures on 
th* JU?ge (Tr* 3~265)• Professor Champagne opposed creating 
subdistricts because "[theoretically the larger the population 
you serve the more insulated a Judge would be from special 
interest group pressure" (Tr. 4-146). See also Tr. 4-191 
testimony of District Judge Carolyn Wright.



17
electoral districts. Texas' Constitution, however, permits 
voters to choose sub-county districts, and it is difficult for 
the state to argue that sub-county districts are incompatible 
with a fair and impartial judiciary. In addition, justices of 
the peace are elected from areas smaller than a county, and those 
districts, in some counties, are significantly smaller than the 
sub-county districts which could be created as a remedy in this 
case.£/ Similarly, the concern that a judge elected from a small 
electorate is more susceptible to improper pressures from special 
interests has not stopped Texas from creating judgeships in some 
counties with relatively small populations. Harris County, for 
example, has a population of nearly 2.8 million people and 59 
district judges. Even if Harris County were to be divided into 
59 subdistricts, a remedy which we do not contend this record 
requires, each district would contain approximately 47,000 ’ -
people. There are currently judges elected county-wide from 
counties with populations of similar size. By our count,!/ 96 of 
Texas' 362 district courts are elected from areas of less than 
100,000 people, and 52 of those are elected from areas of 50,000 
or less. This figure questions the importance of a state concern 
that small electoral districts endanger an impartial judiciary.

Of course, as long as a state or locality chooses to elect

^  For example, the counties at issue in this case run from
wit^lO^OOO7 ' uidern?Jrl£ 2‘8 million PeoPle' to Midland County, ^ o f ' 000* Under the Texas Constitution, counties with as few 
“  ?°'°°° P^Ple *ay be divided into at leak four" Ind as many 
as eight, subdistricts, for the justice of the peace elections. 

Permits counties with as few as 18,000 people to be
i r 5?tice of the peace pre4inctI-
q+^fJUnty P°Pulftions were determined by reference to United States Department of Commerce, 1990 Census of Population - Texas.



18
its judges, there always will be the potential for the appearance 
of conflicts of interest because elected judges are always 
accountable to voters. At present, judges in these counties are 
elected by a white majority. There is also significant question 
whether on this record the state has shown that changing the 
method of election will increase the potential for bias or 
conflicts, rather than simply making some judges more accountable 
to minority voters. Judge Entz acknowledged that he was not 
aware of any allegations of unfairness or suggestions that white 
litigants were not treated fairly by minority judges elected from 
sub-county Justice of the Peace precincts (Tr. 4-90)
Accordingly, it is not at all clear that the state demonstrated a 
consistent state interest in avoiding small judicial districts.

3. Several witnesses discussed .the administrative 
advantages of the present system of electing judges county-wide. 
The witnesses referred to the county-wide records retention, the 
fact that cases are assigned randomly to any judge within the 
county (thereby aiding docket control), and county-wide jury 
empaneling, as examples of administrative conveniences of the 
present system (see Tr. 3-257, 264; 4-257, 261). These concerns, 
however, go to retaining county-wide jurisdiction, rather than 
the method of electing judges, and there was no indication that a 
remedy for dilution could not incorporate these administrative 
conveniences. In addition, while there was testimony that 
applying the dilution test of Section 2 could disrupt the system 
Texas has in many counties of having "specialized courts" (Tr. 3- 
266), a remedy for dilution could easily maintain the use of 
specialty courts in large counties and still fully remedy the



19
<̂ ^ u^ on ky• example, dividing the specialty courts among
districts and having each district elect each type of judge.

4. The original panel decision in this case held that "the 
state's powerful interest in its structural arrangement of 
individual trial judges outweighs the potential amelioration of 
any dilution of minority interests achievable by subdistricting." 
LUMC v. Clements, 902 F.2d 293, 308 (5th Cir. 1990). This 
conclusion, in our view, is premature. First, we believe the 
panel's conclusion was affected significantly by the panel's view 
that trial judges occupy "single-person offices" and that such 
offices necessarily survive the dilution inquiry. The Supreme 
Court clearly rejected that theory in Houston Lawyers Ass'n. 
Second, there is no indication that the panel was weighing the 
"totality of circumstances," but was merely announcing that, as a 
matter of law, trial judges may be elected at-large regardless’ of 
evidence of dilution or the strength of the state's interest or 
alternative methods of election. As discussed above, there is 
much yet to consider before holding both that the state's 
interest in maintaining identical jurisdictional and electoral 
boundaries for trial judges is strong, and that the state has 
proven that electing trial judges at-large, by county, is 
significantly related to that aim, and that there are no less 
dilutive methods of accomplishing that objective. Both the 
district court, and the panel, in our view, failed to perform the 
"intensely local" weighing of the evidence Congress requires, and 
the case must be remanded for full presentation and weighing of 
the evidence. The panel's conclusion that the record sustains 
the method of election as a matter of law improperly implements



20
the dilution test and is simply premature.

CONCLUSION
This case should be remanded to the district court for 

further proceedings.

Respectfully submitted,
JOHN R . DUNNE

Assistant Attorney General

JESSICA DUNSAY SILVER 
MARK L. GROSS 

Attorneys
Department of Justice 
P.O. Box 66078
Washington, D.C. 20035-6078 
(202) 514-2172



CERTIFICATE OF SERVICE
I hereby certify that two copies of the foregoing Brief For 

The United States As Amicus Curiae On Remand From the Supreme 
Court were mailed to each of the following addressees:

Rolando L. Rios, Esq.
201 N. St. Mary's St., #521 
San Antonio, TX 78205
Gabrielle K. McDonald, Esq. 
Matthews & Branscomb 
301 Congress Avenue 
#2050
Austin, TX 78701
John L. Hill, Jr., Esq. 
Liddell, Sapp, Zivley, Hill 

& LaBoon
3300 Texas Commerce Tower 
Houston, TX 77002
David R. Richards, Esq.
600 West 7th Street 
Austin, TX 78701
Seagal V. Wheatley, Esq. 
Donald R. Philbin, Jr., Esq. 
Oppenheimer, Rosenberg Et A1 
711 Navarro, #600 
San Antonio, TX 78205
Ken Oden, Esq.
Travis County Atty's Office 
Stokes Building, 3rd Floor 
314 West 11th Street ■ 
Austin, TX 78707
James Greenleaf Boyle, Esq. 
801 Congress Suite #250 
Austin, TX 78701
E. Brice Cunningham, Esq.
777 S. R.L. Thornton Frwy. 
Suite 121 
Dallas, TX 75203
Darrell Frank Smith, Esq. 
10999 Interstate 10 #905 
San Antonio, TX 78230



2
Susan Finkelstein, Esq.
405 N. St. Mary's 
Suite 910
San Antonio, TX 78205
C. Lani Guinier, Esq.
University of Pennsylvania 

School of Law 
3400 Chestnut Street 
Philadelphia, PA 19104
Pamela C. Karlan, Esq.
University of Virginia 

School of Law 
Charlottesville, VA 22901
R. James George, Jr., Esq.
Graves, Dougherty, Hearon & Moody 
2300 NCNB Tower 
515 Congress Avenue 
Austin, TX 78767

by overnight mail:

Joseph E. Clements, Esq.
Porter & Clements 
700 Louisiana Street 
3500 RepublicBank Center 
Houston, TX 77002
Edward B. Cloutman, III, Esq. 
Mullinax, Wells, Baab & Cloutman 
3301 Elm St.
Dallas, TX 75226-1637
William L. Garrett, Esq.
Garrett Thompson, Esq.
8300 Douglas, Suite 800 
Dallas, TX 75225
Dan Morales, Esq.
Renea Hicks, Esq.
Price Daniel Building 
209 West 14th 
Austin, TX 78701



3
Sherrilyn Ifill, Esq.
NAACP Legal Defense & Education 

Fund
99 Hudson St.
16th Floor
New York, NY 10013
Robert H. Mow, Jr., Esq.
Bobby M. Rubarts, Esq.
David C. Godbey, Esq.
Hughes & Luce 
2800 Momentum Place 
1717 Main Street 
Dallas, TX 75201

This 15th day of October, 1991.

MARK L. GROSS 
Attorney