League of United Latin American Citizens (LULAC), No. #4434 v. Clements Appellant Defendant-Intervenor Brief on Demand
Public Court Documents
September 6, 1991
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Brief Collection, LDF Court Filings. League of United Latin American Citizens (LULAC), No. #4434 v. Clements Appellant Defendant-Intervenor Brief on Demand, 1991. 2e874b30-bb9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/a7ad6b3e-8cd0-4fbd-8a70-835432c3ea07/league-of-united-latin-american-citizens-lulac-no-4434-v-clements-appellant-defendant-intervenor-brief-on-demand. Accessed October 28, 2025.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 90-8014 and
NO. 90-9003
LEAGUE OF UNITED LATIN AMERICAN CITIZENS,
COUNCIL NO. 4434, et al.,
Plaintiffs-Respondents,
versus
WILLIAM P. CLEMENTS, GOVERNOR OF THE STATE
OF TEXAS, et al.,
Defendants,
JUDGE SHAROLYN WOOD, ETC.,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
Midland Division
APPELLANT D EFEND ANT- INTERVENOR
HARRIS COUNTY DISTRICT JUDGE
SHAROLYN WOOD’S BRIEF ON REMAND
PORTER & CLEMENTS
J. Eugene Clements
Evelyn V. Keyes
3500 NCNB Center
700 Louisiana Street
Houston, Texas 77002-2730
(713) 226-0600
ATTORNEYS FOR APPELLANT/INTERVENOR/
DEFEN DANT JUDGE WOOD
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 90-8014 and
NO. 90-9003
LEAGUE OF UNITED LATIN AMERICAN CITIZENS,
COUNCIL NO. 4434, et al.,
Plaintiffs-Respondents,
versus
WILLIAM P. CLEMENTS, GOVERNOR OF THE STATE
OF TEXAS, et al.,
Defendants,
JUDGE SHAROLYN WOOD, ETC.,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
Midland Division
APPELLANT DEFEND ANT-INTERVENOR
HARRIS COUNTY DISTRICT JUDGE
SHAROLYN WOOD’S BRIEF ON REMAND
PORTER & CLEMENTS
J. Eugene Clements
Evelyn V. Keyes
3500 NCNB Center
700 Louisiana Street
Houston, Texas 77002-2730
(713) 226-0600
ATTORNEYS FOR APPELLANT/INTERVENOR/
DEFENDANT JUDGE WOOD
I
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 90-8014 and
NO. 90-9003
LEAGUE OF UNITED LATIN AMERICAN CITIZENS.
COUNCIL NO. 4434, et al.,
Plaintiffs-Respondents,
versus
WILLIAM P. CLEMENTS, GOVERNOR OF THE STATE
OF TEXAS, et al.,
Defendants,
JUDGE SHAROLYN WOOD, ETC.,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
Midland Division
RULE 28.2,1 CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel of record for Harris County District Judge Sharolyn Wood
(hereinafter "Appellant"), certifies that the following listed persons have an interest in the
outcome of this case. These representations are made in order that the Judges of the Court may
evaluate possible disqualifications or refusal.
i
I
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
A1 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:
Dan Morales, Attorney General of Texas
John Hannah, Jr., Secretary of State
Texas Judicial Districts Board
Thomas R. Phillips, Chief Justice, Texas Supreme Court
Michael J. McCormick, Presiding Judge, Court of Criminal Appeals
Pat McDowell, Presiding Judge, 1st Administrative Judicial Region
Thomas J. Stoval, Jr., Presiding Judge, 2nd Administrative Judicial Region
B. B. Schraub, Presiding Judge, 3rd Administrative Judicial Region
John Comyn, Presiding Judge, 4th Administrative Judicial Region
Darrell Hester, Presiding Judge, 5th Administrative Judicial Region
William E. Moody, Presiding Judge, 6th Administrative Judicial Region
u
1
Weldon Kirk, Presiding Judge, 7th Administrative Judicial Region
Roger Jeff Walker, Presiding Judge, 8th Administrative Judicial Region
Ray D. Anderson, Presiding Judge, 9th Administrative Judicial Region
Joe Spurlock II, President, Texas Judicial Council
Leonard E. David
Defendant-Intervenors
Judge Sharolyn Wood
Judge Harold Entz
Judge Tom Rickoff
Judge Susan D. Reed
Judge John J. Specia, Jr.
Judge Sid L. Harle
Judge Sharon Macrae
Judge Michael D. Pedan
Respectfully submitted,
Evelyn V. Keyes
Attorneys for Appellant/Intervenor/
Defendant Harris County District
Judge Sharolyn Wood
m
TABLE OF CONTENTS
Page
RULE 28.2.1 CERTIFICATE OF INTERESTED PERSONS ............................................ i
TABLE OF CONTENTS ............. iv
TABLE OF AUTHORITIES ....................................................................................................... vi
STATEMENT OF JURISDICTION......................................................................................... 2
STATEMENT OF ISSUES ....................................................................................................... 2
STATEMENT OF THE C A S E ................................................................................................. 2
A. Statement of Proceedings...................................................................... 2
B. Statement of Facts ................................................................................. 4
SUMMARY OF THE ARGUMENT ......................................................................................... 15
ARGUMENT AND AUTHORITIES ......................................................................................... 17
I. SECTION 2 MANDATES THAT VOTE DILUTION BE
PROVED UNDER THE ACTUAL, LOCAL "TOTALITY OF
THE CIRCUMSTANCES." ............................................................. V 17
II. IN ANALYZING THE TOTALITY OF THE CIRCUMSTANCES
APPELLEES FIRST HAD TO PROVE DISPARATE
OUTCOMES IN THE ELECTION OF MINORITY AND
MAJORITY CANDIDATES, WHICH THEY FAILED TO DO. . . 21
III. APPELLEES ALSO FAILED TO PROVE THAT RACIAL
POLITICS DENIED MINORITIES EQUAL ACCESS TO THE
POLITICAL PROCESS...........................................................................26
IV. APPELLEES FAILED TO PROVE THAT THE DEGREE OF
ANY VIOLATION FOUND JUSTIFIED THE EXERCISE OF
REMEDIAL POWER, GIVEN THE INTRUSIVENESS OF THE
REMEDY SOUGHT................................................................................29
A. Appellees Proved No Violation ...................................29
B. Appellees’ Proposed Remedy is Extreme
and Intrusive......................................................................29
C. Appellees’ Remedy Is Impermissibly
Intrusive Under Statutory and
Constitutional Guidelines ................................................32
iv
V.
VI.
CONCLUSION
FINALLY, THE REMEDY STAGE OF A VOTE DILUTION
CASE — IF ANY — MUST PROCEED WITHIN STRICT
CONSTRAINTS......................................................................................... 37
THE DISTRICT COURT CLEARLY ERRED IN FINDING
ILLEGAL VOTE DILUTION IN STATE DISTRICT JUDGE
ELECTIONS............................................................................................... 39
...................................................................................................................... 40
v
I
TABLE OF AUTHORITIES
Cases
Page
Atascadero State Hosp. v. Scanlon, 473 U.S. 234,
105 S. Ct. 3142 [1985] ......................................................................................................... 33
Bernal v. Fainter, 467 U.S. 216, 104 S. Ct. 2312 [1984].....................................................33
Boyd v. Thayer, 143 U.S. 135, 12 S. Ct. 375 [1892] .......................................................... 33
Chisom v. Roemer, 853 F.2d 1192 (5th Cir. 1988),
111 S. Ct. 2354 (1 9 9 1 ) .................................................................................................... 21, 38
City o f Mobile v. Bolden, 446 U.S. 55, 100 S. Ct. 1490 (1980).................................... 20, 32
Connor v. Finch, 431 U.S. 407, 97 S. Ct. 1828 (1 977 )........................................................ 38
Duncan v. McCall, 139 U.S. 449, 11 S. Ct. 573 (1891) ..................................................... 33
E.E.O.C. v. Wyoming, 460 U.S. 226, 103 S. Ct. 1054 (1983)............................................. 33
Gregory v. Ashcroft,___U .S .___ , 111 S. Ct. 2395 (1 9 9 1 ).......................................... 33, 34
Houston Lawyers Association v. Attorney
General o f Texas, 111 S. Ct. 2376 (1991)........................................................ 4, 21, 22, 31
LULAC Council No. 4434 v. Clements, 914 F.2d 620 (1990) ......................... 4, 30, 31, 35
Martin v. Mabus, 700 F. Supp. 327 (S.D. Miss. 1 9 8 8 ).................................................. 38, 39
McDaniel v. Sanchez, 452 U.S. 130, 101 S. Ct. 2224 (1981) ....................................... 37, 38
Oregon v. Mitchell, 400 U.S. 112, 91 S. Ct. 266 (1 9 7 0 ) ..................................................... 33
Pennhurst St. Sch. & Hosp. v. Halderman, 451 U.S. 1,
101 S. Ct. 1531 (1 9 8 1 ) .................................................................................................... 34, 35
Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362 (1964).......................................... 22, 35, 37
Rogers v. Lodge, 458 U.S. 613, 102 S. Ct. 3272 (1 9 8 2 ) ..................................................... 32
Texas o f Community Affairs v. Burdine, 450 U.S. 248,
101 S. Ct. 1089 (1 9 8 1 ) .......................................................................................................... 24
vi
I
Thornburg v. Gingles, 478 U.S. 30, 106 S. Ct. 2752 (1986).............. 17-19, 22, 23, 27, 35
Upham v. Seamon, 456 U.S. 37, 102 S. Ct. 1518
(1982) (per curiam) ...............................................................................................................38
Ward’s Cove v. Atonio, 490 U.S. 642, 109 S. Ct. 2115 (1989) .......................................... 25
Whitcomb v. Chavis, 403 U.S. 124, 91 S. Ct. 1858 [1973]...................... 17, 20, 22, 28, 38
White v. Regester, 412 U.S. 755, 93 S. Ct. 2332 (1 9 7 2 ) ....................................... 17, 20, 22
White v. Weiser, 412 U.S. 783, 93 S. Ct. 2348 (1973) ........................................................ 38
Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893 (1970)..................................................... 32
Williams v. Superior Court, 263 Cal. Reptr. 503,
781 P.2d 537 (1989)............................................................................................................... 32
Wise v. Lipscomb, 437 U.S. 535, 98 S. Ct. 2493 (1978) ..................................................... 38
Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973)..................................................... 15, 18
United States Constitution
U.S. Const, art. IV § 4 ............................................................................................................ 33
U.S. Const. Amend. X ...............................................................................................................33
U.S. Const. Amend. XIV............................................................................................... 32, 33, 34
U.S. Const. Amend. XV....................................................................................................... 32, 34
Federal Statutes
28 U.S.C. § 1291(a)(1)....................................................................................................................2
28 U.S.C. § 1292(b) ...................................................................................................................... 2
42 U.S.C. §1973 ............................................................................................................. 2, 17, 23
vii
r
Texas Constitution
Tex. Const, of 1876 art. 5, § 7 ................................................................................................. 5
Tex. Const, of 1876 art. 5, § 7 a .........................................................................................5, 6
Texas Statutes
Tex. Gov’t Code § 24.945 .......................................................................................................5
Tex. Gov’t Code §§ 24.950, 24.951 ......................................................................................... 5
Miscellaneous
S. Rep. 97-417 reprinted, in U.S. Cong. Code
& Admin. News 192-211 ...................................................................................... 20, 21, 35
viii
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 90-8014 and
NO. 90-9003
LEAGUE OF UNITED LATIN AMERICAN CITIZENS,
COUNCIL NO. 4434, et al.,
Plaintiffs-Respondents,
versus
WILLIAM P. CLEMENTS, GOVERNOR OF THE STATE
OF TEXAS, et al.,
Defendants-Appellants
JUDGE SHAROLYN WOOD,
Defendant-Intervenor-Appellant.
Appeal from the United States District Court
for the Western District of Texas
Midland Division
APPELLANT DEFENDANT-INTERVENOR
HARRIS COUNTY DISTRICT JUDGE
SHAROLYN WOOD’S BRIEF ON REMAND
TO THE HONORABLE COURT OF APPEALS:
Harris County District Judge Sharolyn Wood ("Judge Wood") files this Brief to address
the following issues: (1) the formulation of a method of proving vote dilution applicable to
judicial elections; (2) the weighing of a state’s interest in structuring its own judicial election
system versus minority interests in an election scheme which guarantees more successful
minority candidacies; and (3) the principles constraining the imposition of judicially crafted
remedies for vote dilution. Based on the law outlined herein, Judge Wood believes that the
district court’s holding was clearly erroneous and therefore requests that this Court reverse the
holding of the district court and render judgment in favor of Defendants/Appellants.
STATEMENT OF JURISDICTION
This case is on remand from the United States Supreme Court. Jurisdiction is provided
by 28 U.S.C. § 1292(b) and by 28 U.S.C. § 1291(a)(1).
STATEMENT OF ISSUES
1. How is illegal vote dilution proved in judicial elections?
2. What is the weight of Texas’ interest in structuring its own judicial electoral
system compared to minority interests in guaranteeing more successful minority candidacies?
3. What constraints must a federal court respect in considering the viability, of a
remedy for vote dilution?
4. Whether the district court in this case erred in finding illegal vote dilution in state
district judge elections in Texas’ ten largest counties, in enjoining elections under that system,
and in ordering into effect its own Interim Plan for Texas state district judge elections?
STATEMENT OF THE CASE
A. Statement of Proceedings
Plaintiffs/Appellees brought this suit seeking (1) a declaration that the State of Texas’
system for electing state district judges dilutes their votes in violation of the Fourteenth and
Fifteenth Amendments to the United States Constitution and § 2 of the Voting Rights Act, 42
U.S.C. § 1973,1 (2) a permanent injunction against the further election of state district judges
1 A copy of § 2 is attached hereto at Appendix ("App.") la.
2
under that system, and (3) the imposition of a system for electing state district judges which
would provide Blacks and Hispanics a greater opportunity to elect Black and Hispanic state
district judges.
The case was tried before Judge Lucius Bunton in Midland, Texas, beginning Septem
ber 18, 1989. On November 8, 1989, the district court issued its Memorandum Opinion and
Order ("Op."). The Court rejected the Plaintiffs’ constitutional claims but held that Texas’
system of electing state district judges diluted the votes of minorities in all target counties2 in
violation of § 2. Op. at 91, 94. The Court reserved the question of a permanent injunction until
the Texas legislature had had a chance to devise a new judicial election plan. Id. Six weeks
later, on January 2, 1990, without an evidentiary hearing, the district court issued an Order (the
"Order") enjoining the calling, holding, supervising and certifying of elections for state district
judges under Texas’ judicial election system in the target counties and imposed its own Interim
Plan for electing judges. That eight-page Plan was ordered into immediate effect on the last day
on which filing was permitted for judicial races under Texas law. It totally rewrote Texas’
comprehensive judicial election system, promulgated pursuant to art. 5 §§ 7 and 7a of the Texas
Constitution of 1876 and pursuant to numerous provisions of the Texas Government Code and
Texas Election Code. It adopted virtually in toto a remedial plan submitted by the Plaintiffs (the
League of United Latin American Citizens ["LULAC"] and certain LULAC chapters and named
Hispanic individuals), the Plaintiff/Intervenors (the Houston Lawyers Association [the "HLA"]
and other named Black individuals), and Defendant Texas Attorney General Mattox over the
objections of Defendant/Intervenors Judge Wood and Dallas County District Judge Harold Entz
("Judge Entz"). In large counties like Harris County, Judge Bunton’s Interim Plan assigned
2 The suit originally targeted 47 Texas counties, later reduced to 10 counties.
3
district judges to legislative districts — approximately two to each Democratic district and one
to each Republican district. It departed from the Plaintiffs/Mattox Plan in only two significant
respects: it made elections non-partisan and moved them to a special election day — "remedies"
sought by no one.
The Fifth Circuit Court of Appeals granted interlocutory review and enjoined imposition
of the Interim Plan. Following expedited oral hearing on April 30, 1990, a three-judge panel
of the Fifth Circuit held two to one that state district judges were single-member office-holders
and were, therefore, not subject to vote dilution claims.3 On en banc review, a majority of
seven judges, authored by Judge Gee, held that judges were not "representatives" of their
constituents and, therefore, the vote dilution provision in § 2(b) of the Voting Rights Act did not
apply to judicial elections. LULAC Council No. 4434 v. Clements, 914 F.2d 620 (1990). A
five-member concurring minority, authored by Judge Higginbotham, would have held, that
although judges are "representatives," the single-member office-holder exception to vote dilution
claims applied to the election of state district judges. Judge Johnson dissented.
After the HLA and LULAC filed timely Petitions for Writ of Certiorari, the Supreme
Court heard oral argument on April 22, 1991, and issued its opinion sub nom Houston Lawyers
Association v. Attorney General o f Texas, on June 20, 1991. It held that "the Act does not
categorically exclude judicial elections from its coverage" and remanded the case to this court
to consider "whether a vote dilution violation may be found or remedied" under the
circumstances of this case. I l l S. Ct. 2376, 2381 (1991).
B. Statement of Facts
3 The Plaintiffs did not appeal the district court’s denial of their constitutional claims.
4
Texas’ constitutional judicial election system provides for the election of judges from
overlapping single-judge, county-wide districts. Tex. Const, of 1876 art. 5, § 7.4 District
judges are elected to four-year terms in partisan races by a plurality of the voters at general
elections. They are required to be citizens of the State of Texas, to have been practicing lawyers
for four years, to have been residents of their districts for two years, and to agree to reside in
their districts during their terms in office. Id. In 1985, as part of a comprehensive judicial
administrative plan, article 5 was amended by the addition of § 7a, which created a judicial
reapportionment board and also prohibited the creation of judicial districts smaller than a county
without the approval of a majority of the county’s voters.5 Pursuant to article 5, the Texas
Legislature has enacted a comprehensive body of laws governing the formation and function of
judicial districts. These laws — including reapportionment laws — are expressly designed to
equalize judicial burdens in the interest of promptness and efficiency. Tex . Gov’t Code §
24.945. To promote fairness and efficiency, all district courts in a county with more than one
judicial district are accorded concurrent jurisdiction and are permitted to equalize their dockets.
Tex. Gov’t Code §§ 24.950, 24.951. In addition, specialized courts have been created in cer
tain populous counties by legislative action or informal arrangements. Transcript ("TR. *) 3-254.
Under this system Harris County currently has 59 state district judges who serve the specialized
functions of civil district judge (25), criminal district judge (22), family law judge (9) and
juvenile judge (3).
At trial, a number of witnesses testified regarding the State’s interests in devising and
maintaining its present district judge election system and regarding the effect a subdistricting
4 A copy of § 7 is included in the Appendix at 2a.
5 A copy of § 7a is included in that Appendix at 3a-4a.
5
remedy for vote dilution would have on the State. Texas Supreme Court Chief Justice
Thomas R. Phillips testified that the Texas Constitution was written to ensure that each judge
be responsible to the voters of the entire area over which he exercises primary jurisdiction. He
testified that this is appropriate because of the power and authority judges exercise over people’s
lives: if judges are elected they should be accountable to those people who can be brought before
their court. TR. 5-107, 5-78, 5-120. He further testified that the purpose of redistricting is to
equalize the workload among Texas district courts. TR. 5-106. He testified that there would
be significant venue controversies and jury selection problems with the creation of districts
smaller than a county. TR. 5-109. Justice Phillips noted that, in 1889, Dallas and Bexar
Counties experimented with dividing the county into two electoral districts, each half electing
a district judge with jurisdiction over the entire county. TR. 5-82-83. The enabling legislation
was soon repealed in both counties. TR. 5-83. With these two exceptions, Texas’ statutes have
always created judicial districts of at least one county in size. TR. 5-105.
Harris County District Judge Mark Davidson testified that the intent of the legislature in
adopting § 7a in 1985 was to create an orderly system for docket equalization. TR. 3-261-62.
Blacks and whites voted equally (and overwhelmingly) for the amendment; and it was endorsed
by minority legislators. TR. 3-263. Judge Davidson testified that the creation of single-member
districts within the county would substantially increase the political pressures on judges, which
are minimized by the county-wide district system. TR. 3-264-65. It would also create forum-
shopping, "mind-boggling" confusion and gross disparity between the docket loads of various
courts. TR. 3-265. It would destroy the specialized court system. TR. 3-265-66. It would
create severe administrative problems and jury selection problems. TR. 3-267-68.
6
Hams County District Clerk Ray Hardy testified that county-wide jury selection with
random assignments is important to ensure representation of the entire county on jury panels.
TR. 4-255-56. The creation of sub-districts could create venue problems, tremendous expense,
jury selection problems, forum shopping, divisiveness, administrative difficulties and docket
inequality. TR. 4-257-61. It would encourage racially discriminatory jury pools. TR. 4-259-
61. He testified that county-wide districts go back to the formation of the State and that there
is no indication they have been perpetuated in order to discriminate against Black and Hispanic
voters. TR. 4-262.
There was also substantial testimony at trial regarding the statistical analysis of voting
in Texas judicial races and the actual local factors at work in those races. Plaintiffs/Appellees
the HLA presented evidence, which the Court accepted, that Blacks constitute 18.2% of the
voters of Harris County. Op. at 14-15.6 Both sides agreed that 5.1 % (3 out of 59) of the state
district judges sitting in Harris County are Black. To prove vote dilution HLA pointed to a
perceived lack of Black candidate success in Harris County judicial elections. The HLA
concentrated on statistical analyses of Hams County voting patterns by its expert witness,
Dr. Richard Engstrom. Dr. Engstrom conducted homogeneous precinct analyses and ecological
bivariate regression analyses of 17 contested Harris County white/Black races for district judge
since 1980.7 He testified that homogeneous precinct analysis, or "extreme case" analysis,
6 While LULAC brought claims on behalf of Hispanics in Harris County, as well as
Blacks, it introduced no evidence in support of those claims. Therefore, this Court should
reverse and render judgment for Defendants insofar as Judge Bunton’s decision applies to
Hispanics in Harris county.
7 Dr. Engstrom relied for his data base on the 1980 census counts of total black population
by precinct and computer printouts of 1982, 1984, 1986, and 1988 precinct voter registration
estimates supplied to Dr. Engstrom by Dr. Richard Murray who did not authenticate this data.
TR. 3-68-71. Dr. Engstrom testified that the only independent check he ran on this data was
7
analyzes the support given candidates in demographically homogeneous precincts. TR 3-74,
102-103. Bivariate regression analysis correlates the race of voters in a precinct with support for
given candidates. Op. at 23 n. 16; TR. 3-67.
Although Texas judicial races are partisan, Dr. Engstrom did not factor partisan voting
into his analyses, nor did he consider any other candidate factors such as incumbency or
endorsements. TR. 3-79; 3-82. Instead he factored only race and the level of support for Black
candidates into his analyses. TR. 3-73, 3-84, 3-88-89. His results showed that as the precincts
became more Black in composition the vote for the Black candidate increased, with one excep
tion. TR. at 3-74-75. Moreover, on his analyses, Blacks consistently gave more than 100% of
their votes to the Black candidate (again with the one exception). TR. 3-75. Dr. Engstrom
testified on cross-examination that the one exception in the races he analyzed was the Mamie
Proctor race, in which Ms. Proctor, a Black Republican, ran against a white Democrat.. TR.
3-107. Ms. Proctor got over 50% of the white vote and virtually none of the Black vote. TR.
3-108. In that race, Dr. Engstrom testified, the preferred candidate of the Black minority was
the white Democrat. M.8
to compare the Hispanic percentage with 1988 state figures on Hispanic votes. TR. 3-71. On
cross-examination, Dr. Engstrom admitted that he relied on Dr. Murray’s data, without checking
it, for population estimates, voter registration estimates, voter estimates, and changes in precinct
population shifts and growth over the ten years since the 1980 census. TR. 3-89-101. He also
admitted that there would "undoubtedly by 1988 be some slippage in the measurements." TR.
3-98. In addition, Dr. Engstrom testified on cross-examination that he did not control for Asian-
American votes (TR. 3-99) or absentee votes in Harris County, which ranged as high as 13.6%
of the total vote. TR. at 3-80-81. Judge Wood objected to the reliability of Dr. Engstrom’s
testimony both before trial and at trial.
8 Dr. Engstrom also testified on cross-examination that he could have predicted lesser
Black support for Ms. Proctor by knowing that she was a Republican. TR. 3-88.
8
Dr. Engstrom admitted that, using his definition of the Black preferred candidate as the
candidate who got the most Black votes, and assuming that each of Harris County’s 35 Demo
cratic judges received 95 % of the Black vote, the majority of the state district judges elected in
Hams County have been the candidate of choice of Black voters, if white on white races are
counted. TR. 3-108-109. He testified, however, that he did not analyze white on white races
because the only "relevant" races are those in which Blacks vote for members of their own racial
group. TR. 3-73. He testified that a showing that Black voters are unable to elect the candidate
of their choice when the candidate is a Black is sufficient to show vote dilution. TR. 3-73.
The HLA also presented evidence that the Black population of Harris County is suffi
ciently large and geographically compact to constitute a majority in 13 hypothetical judicial
districts in Harris County. TR. 3-232-233. Their expert witness, Mr. Jerry Wilson, could not
explain on cross-examination, however, how 22% of the judicial districts in Harris County could
have a Black majority if only 19.7% of the total Harris County population and 18.2% of the
voters are Black. He also was unable to testify that the hypothetical districts he drew were
compact. TR 3-240. He testified that he had made no effort to address communities of interest
or specialized courts. TR. 3-241-242. LULAC presented no testimony or proof as to Harris
County.
Judge Wood’s expert witness, Judge Mark Davidson, testified that state district judge
races in Harris County are more accurately characterized by partisan polarized voting, not
racially polarized voting. TR. 3-268. Republicans and Democrats are roughly evenly divided:
in most judicial races 42%-45% of the voters vote a straight Republican ticket and 42%-45%
vote a straight Democratic ticket. TR. 3-271. Judicial elections are usually determined by a
small number of discretionary judicial voters or swing voters. TR. 3-270-272. Straight ticket
9
voters cannot be voting their racial preferences because the percentage of voters voting a straight
Republican or Democratic ticket does not change with the race of the candidate. TR. 3-272-273.
Only swing voters could be influenced by race; but the actual factors that affect their votes are
not racial but factors such as voter tum-out, incumbency and the type of campaign run. TR.
3-271-277.9
The State presented Dr. Delbert Taebel as an expert witness. In contrast to
Dr. Engstrom, Dr. Taebel analyzed 41 white/minority judicial races in Harris County since
1980, including primary races, white/Hispanic races, and white/Black races, mainly for state
district judge. TR. 5-225. Dr. Taebel ran a multivariate ecological regression analysis, fac
toring in party affiliation as well as race. He testified that he factored in party and included
more races, including primary races, because the purpose of a functional analysis is to determine
how the political process works. TR. 5-161-165. Dr. Taebel testified that no one can evaluate
partisan elections using a functional approach without taking parties into account because party
affiliation overwhelms all other factors in describing how partisan elections work. TR. 5-233.
Dr. Taebel testified that Harris County voting is very competitive between Democrats and
Republicans and election results are unpredictable.10 TR. 5-226. There is extensive straight-
party voting. TR. 5-183; TR. 5-228. The swing voters, who constitute only 10-20% of the judi
cial voters, are a critical factor and vote in a variety of different ways. TR. 5-228-229.
However, swing voting in Harris County has nothing to do with race. TR. 5-232-233.
9 Judge Entz’s witness, Dr. Anthony Champagne, similarly testified that in Dallas County
recognition of who is actually running for judicial office, including the race of the candidate,
is very low. TR. 4-119-121.
10 Except in 1984 when straight ticket Republican judicial voters were sufficiently numerous
to elect all contested benches — no matter what the race of the Democratic candidate.
10
Dr. Taebel also testified that there are two ways to determine whether partisanship or
race best describes actual voting patterns. TR. 5-185-186. If the party vote remains similar
from race to race in a general election, there is a high degree of partisan voting. TR. 5-186.
Also, if there is a shift in white support of a minority candidate between the primary election
and the general election, the shift indicates dilution by partisan voting. TR. 5-186-187. The
first of these tests shows that in Harris County party voting by whites, Blacks, and Hispanics
is exacdy or almost exactly the same, regardless of the race of the candidates. TR. 5-227.11
Also, since Black Democrats and white Democrats vote substantially the same in Harris County,
1.. .............. " ^
TR. 5-268, it follows under the second of these tests that any dilution of the vote for a Black
Democrat between the primary and the general election is due to dilution by Republican votes,
not white votes.
Dr. Taebel’s and Judge Davidson’s testimony was corroborated by numerous witnesses
for both sides who testified to the importance to electoral success or failure in Harris County of
specific factors such as straight party voting (TR. 3-220 and 3-325), the Democratic sweep in
1982 (TR. 3-256) and the Republican sweep in 1984 (TR. 3-294, 4-40), the importance of bar
poll results in 1986 and 1988 (TR. 3-319, 3-325, 4-56, 5-129), incumbency (TR. 3-325), and
the effectiveness of particular campaign strategies (TR. 3-294). Studies commissioned by the
Democratic judges in 1986 (including Plaintiff Matthew Plummer), made by Dr. Richard
11 Dr. Champagne similarly testified that in Dallas County the average vote for Democratic
judicial candidates in general roughly corresponds to the percentage of votes for Black
Democratic judicial candidates. TR. 4-105-106. He further testified that while it is meaningful
to say on the basis of statistical analysis of Dallas County judicial races that the Democratic
party is the party of choice of Black voters, it is not meaningful to say that any individual
candidate is the candidate of choice of Black voters. TR. 4-128. Voting is based on political
party, not race or, for that matter, any other candidate - specific characteristic or activity. TR.
4-179.
11
Murray, authenticated by him in deposition testimony, and introduced into evidence by the
defense, also rejected racism as the cause of the 1986 loss by three incumbent Black judges in
Hams County (only one of whom was a district judge), citing other factors, such as their being
relatively unknown and unable to raise funds, their concentration on seeking only minority
support, low Black voting, and their failure to obtain the endorsement of the Gay Political
Caucus. TR. 2486-89; Exh. DW 15 at 15-17. Although the HLA presented witnesses who testi
fied globally that Black losses in Hams County campaigns are due to racism, none could point
to any racist element in his own campaign. See, e.g. , testimony of former Judge Weldon Berry,
TR. 4-55. Judge Manuel Leal testified that his Republican party affiliation, and not racial
voting, caused his loss in 1982. TR. 4-246. In addition, Harris County District Clerk Ray
Hardy testified that racism does not play a part in Harris County district judge races and has not
done so in the last 15 years. TR. 4-255.
Significantly, although there was testimony regarding each of the races run by specific
Black candidates in Harris County, neither Dr. Engstrom nor Dr. Taebel analyzed the 2 Harris
County state district judge races in which Blacks ran successfully in 1978. The two Black
district judges elected in 1978 — Judges Thomas Routt and John Peavy — have been consistently
elected ever since in all races without opposition, except for Judge Routt’s 1982 win over a
white opponent. Since neither Dr. Engstrom nor Dr. Taebel counted Black successes in
unopposed races, these two invincible Black candidates simply never counted.
As Judge Wood’s ("DW") Exh. 1 shows, Blacks have run in 25 contested races in
general elections in Hams County for appeals court judge, state district judge, and county court
at law judge since 1980 and have been successful in 5 of those races (20%). Blacks have run
in 22 races in general elections for state district judge since 1978 and have won 7 of those races
12
— 4 contested and 3 uncontested — for a total success rate of 32% in all races, and 18% in
contested races. See Exh. DW-1. Moreover, 11 of the 15 losses were attributable to only four
candidates, Weldon Berry, Sheila Jackson Lee, Freddie Jackson, and Matthew Plummer. Exh.
DW-1. No Black candidate for district judge has lost in the Democratic primary in Harris
County since 1984. Exh. DW-2. These figures show that, even if Blacks had won every race
in which they ran, they would still fall far short of proportional representation vis k vis Black
voters. The relatively high success rates for Black judicial candidates (when there are (^ndi-^
dates) - suggests that some other explanation for the ratio of Black voters to Black judges must
be operative.
Dr. Champagne testified that nationwide the percentage of minority judges correlates
most closely to the percentage of minority lawyers in a community — not to the percentage of
minority voters. TR. 4-131.12 Correspondingly, the defense proved that, as of the date of
trial, although Black district judges were 5.1% of the judges on the bench in Harris County,
Blacks constituted only 3.8% of the attorneys qualified to run for state district judge. Exh. D-4.
However, Dr. Champagne further testified that the number of Black lawyers is increasing and
the number of Black judges should therefore also increase. TR. at 4-136.
In his Opinion, Judge Bunton held that the votes of minorities in all nine target counties
were illegally diluted in violation of § 2. Op. at 89-90. He held that the extent of minority
electoral success injudicial races must be measured by the percentage of minority class members
in the total voting age population of the challenged district. Op. at 74-75. He also held that two
of the essential elements of a vote dilution claim — political cohesiveness and ability of the white
12 Dr. Champagne further testified that studies Black attorneys constitute between .8% and
2.2% of all attorneys in Dallas County. TR. 4-134.
13
majority usually to defeat the minority’s preferred candidate13 — are proved by statistical evi
dence of racially polarized voting and that testimony regarding party affiliation and the actual
local factors that determine election outcomes, while "credible," is "irrelevant" under controlling
law and "legally incompetent." Op. at 31. Party itself is "simply irrelevant" under the control
ling law and "the addition of irrelevant variables [to regression or statistical analysis] distorts
the equation and yields results that are indisputably incorrect under § 2." Op. at 85, 80. Judge
Bunton accepted the data set relied upon by Plaintiffs’ expert, Dr. Engstrom, to analyze Harris
County elections14 as reliable and adopted Dr. Engstrom’s testimony, based on Dr. Murray’s
data, that white bloc voting exists in Harris County and is sufficiently strong generally to defeat
the choice of the Black community. Op. at 27-30. He further held that Dr. Engstrom’s analysis
"describes the percentage of the variances in voting behavior explained by race/ethnicity." Op.
at 24 (emphasis added). ' •
Judge Bunton conducted a cursory analysis of nine "Zimmer" factors considered to be
typical of racial discrimination in voting.15 He found that Harris County district judge elections
exhibit only three Zimmer factors: (1) historical discrimination, which he considered indisput
able in all counties; (2) illegal "enhancement" of the opportunity to discriminate, which he held
was established by majority voting and the fact of county-wide elections in a large county; and
(3) lack of Black electoral success in judicial elections. Op. at 69-77. Judge Bunton found no
evidence of discriminatory slating, racial appeals in campaigns, or lack of responsiveness of
Harris County district judges to the needs of minorities; and he concluded that the reasons for
13 See infra at 17-18.
14 See n. 6 supra.
15 See infra at 18-19.
14
county-wide judicial election districts are neither tenuous nor intentionally discriminatory. Id.
In substance, Judge Bunton swept aside virtually all fact-intensive searching examination of local
considerations and focused solely on bivariate statistical analysis of voting patterns in reaching
his results.
Finally, Judge Bunton held that "[cjostly reorganization of the State at-large system of
general and specialized courts and disruption of County administrative duties such as jury selec
tion are not sufficient grounds for maintaining an otherwise flawed system" and that "[Cjongress
did not contemplate that such consideration would play a role in determining whether there has
been a violation of section 2." Op. at 90. He held that, regardless of the size of their electoral
district, judges could exercise general jurisdiction over their geographic area of responsibility,
that administrative functions and jury selection could continue on a county-wide basis, and that
the creation of specialty courts was "wrong." Op. at 77-78. After allowing only six weeks for
Texas to call a special legislative session and restructure its judicial election system, he ordered
his own modification of the Plaintiffs/Mattox judicial election plan into effect.
SUMMARY OF THE ARGUMENT
The district court erred in finding illegal vote dilution in Texas’ judicial election system.
The court lowered the standard of proof as necessary to permit the Plaintiffs to win, even though
the Defendants showed that the percentage of elected minority judges is greater than the
percentage of qualified minority class members in the candidate pool and even though the
Plaintiffs made no showing (other than a distorted statistical showing) that minorities are denied
full participation in Texas judicial elections. A functional analysis of the totality of the
circumstances demonstrates that the primary determinant of Texas judicial elections is partisan
voting and that racial politics are not a significant factor; therefore, there is no legally cognizable
15
vote dilution in Texas district judge elections. Moreover, even if the Plaintiffs had shown that
minority voters were denied full access to the political process in Texas district judge elections
— which they patently did not show — they would still have had to show that minority voters’
interest in guaranteeing greater electoral success to members of their own race outweighs the
State of Texas’ constitutionally guaranteed right to structure its judicial selection system. They
would also have had to show that Congress intended that § 2 impose such massive burdens on
the states as the restructuring of entire electoral systems which, without intent to discriminate,
merely result in the dilution of minority votes. The Plaintiffs made no such showing.
Therefore, for each of the foregoing reasons, Judge Bunton erred in holding the Texas district
judge election system illegal under § 2, enjoining elections under that system, and imposing his
own Interim Plan on Texas. This case should be reversed and judgment rendered for
Defendants.
16
ARGUMENT AND AUTHORITIES
I. SECTION 2 MANDATES THAT VOTE DILUTION BE PROVED UNDER
THE ACTUAL, LOCAL "TOTALITY OF THE CIRCUMSTANCES."
In 1982, Congress added a new subsection to § 2 of the Voting Rights Act. That
subsection reads,
A violation . . . is established if, based on the totality of the circumstances, it is
shown that the political processes leading to nomination or election in the state
or political subdivision are not equally open to participation by members of a
[protected class] in that its members have less opportunity than other members of
the electorate to participate in the political process and to elect representatives of
their choice. The extent to which members of a protected class have been elected
to office in the State or political subdivision is one circumstance which may be
considered: Provided, 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(b). This language, derived almost verbatim from White v. Regester, states:
To sustain ["claims that multi-member districts are being used invidiously to
cancel out or minimize the voting strength of racial groups"] it is not enough that
the racial group allegedly discriminated against has not had legislative seats in
proportion to its voting potential. The Plaintiffs’ burden is to produce evidence
to support findings that the political processes leading to nomination and election
were not equally open to participation bv the group in question — that its
members had less opportunity than did other residents in the district to participate
in the political processes and to elect legislators of their choice.
412 U.S. 755, 765-66, 93 S. Ct. 2332, 2339 (1972) (emphasis added) (citing Whitcomb v.
Chavis, 403 U.S. 124, 91 S. Ct. 1858 [1973]).
In its only case interpreting § 2 as amended, the Supreme Court reaffirmed the holding
in White and Whitcomb (expressly incorporated by Congress into § 2(b)), that, in assessing a §
2 vote dilution claim "the trial court is to consider the ’totality of the circumstances’ and to
determine, based upon a searching practical evaluation of the past and present reality. . . .
whether the political process is equally open to minority voters." Thornburg v. Gingles, 478
17
U.S. 30, 106 S. Ct. 2752 (1986) (emphasis added). A five-member majority of the badly split
Court held that § 2 Plaintiffs must first prove the three "Gingles factors" as a threshold test:
(1) the minority group must be able to demonstrate that it is sufficiently large
and geographically compact to constitute a majority in a single member
district!;]
(2) the minority group must be able to show that it is politically cohesivef;
and]
(3) the minority must be able to demonstrate that the white majority votes
sufficiently as a bloc to enable it — in the absence of special circum
stances, such as the minority candidate running unopposed . . . — usually
to defeat the minority’s preferred candidate.
478 U.S. at 48-51, 106 S. Ct. at 2766-2767. The Court did not, however, contemplate that the
threshold Gingles factors would be sufficient by themselves to establish a violation of § 2.
Instead, the trial court was directed to conduct "an intensely local appraisal of the design and
impact of the contested electoral mechanisms." 478 U.S. at 79, 106 S. Ct. at 2781, relying on
"objective factors" like those enumerated in Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir.
1973) (en banc), and adopted as typical (but not exclusive) factors by the Senate Judiciary
Committee Majority Report accompanying the bill which amended § 2 of the Voting Rights Act
in 1982 (the "Zimmer factors"). 106 S. Ct. at 2763, 2759 n. 4.16
16 The Zimmer factors include:
1. the extent of any history of official discrimination touching the right of the
minority group to register, vote, or otherwise participate in the democratic
process;
2. the extent to which voting is racially polarized;
3. the extent to which the state or political subdivision uses voting practices or
procedures that may enhance the opportunity to discriminate;
18
It is important to note that while the three Gingles factors were apparently intended as
a comprehensive threshold test of vote dilution, the Zimmer factors constitute neither a necessary
nor an exclusive list of objective factors at work in local elections: they are merely "typical"
factors — or were when the Voting Rights Act was promulgated. The directive is to assess the
actual, local factors. In Whitcomb, for example, on which the amendment to § 2 was modeled,
the Supreme Court reviewed the local factors that actually influenced partisan legislative elec
tions in Marian County, Indiana. It concluded that there was no illegal vote dilution since
nothing in the record indicated that Blacks were not allowed to register or vote, to choose the
political party they desired to support, to participate in its affairs, or to be represented when
legislative candidates were chosen; nothing indicated that Blacks were regularly excluded from
the slates of both major parties or that the Democratic party could afford to overlook Black
voters in slating its candidates; and it seemed reasonable to infer that if Democrats had- won
elections instead of losing them, the Blacks would have had no justifiable complaints about
4. the denial of access of the minority to any candidate slating process;
5. the extent to which members of the minority group bear the effects of discrimi
nation in such areas as education, employment and health, which hinder their
ability to participate effectively in the political process;
6. the characterization of political campaigns by overt or subtle racial appeals;
7. the extent to which members of the minority group have been elected to public
office;
8. a significant lack of responsiveness of elected officials to the particularized needs
of the minority group; and
9. the tenuousness of the policy underlying the use of the disputed voting practice
or procedure.
478 U.S. at 36-37, 106 S. Ct. at 2759. It should be noted that the "tenuousness" factor is not
the same as the state’s interest that must be weighed in every vote dilution inquiry.
19
representation. 403 U.S. at 149-52, 91 S. Ct. at 1872-73. Given these facts, the Court con
cluded that the failure of Blacks to have legislative seats in proportion to their percentage of the
population emerged "more as a function of losing elections than a built-in bias" against Blacks;
and, although Blacks claimed that their voting power had been "cancelled out," the Supreme
Court held that "this seems a mere euphemism for political defeat at the polls." 403 U.S. at
153, 91 S. Ct. at 1874.
Significantly, the Senate Report accompanying the 1982 amendments to § 2 singled out
Whitcomb as a case in which the minority Plaintiffs had not borne their burden of proving that
they were denied "equal access to the political process." S. Rep. 97-414 1, 20, reprinted at
1982 U.S. Cong. Code & Admin. News 177, 198. The Report, like Whitcomb itself, indicated
that proof of vote dilution requires a great deal more than mere lack of proportional
representation — namely:
Plaintiffs must either prove [a discriminatory purpose in the adoption or mainte
nance of the challenged system of practice] or, alternatively, must show that the
challenged system or practice, in the context of all the circumstances in the juris
diction in question, results in minorities being denied equal access to the political
process.
S. Rep. 97-417 at 27, 1982 U.S. Cong. Code & Admin. News at 205 (emphasis added).
One other aspect of the "totality of the circumstances" test must be addressed here — the
distinction between the "results" test and the "intent" test, which the 1982 amendments to § 2
were designed to eliminate as an essential element of a § 2 claim.17 In amending § 2, Congress
17 In 1980, the Supreme Court held that a finding of discriminatory intent in the creation
or maintenance of an electoral process or procedure was not only an essential element of a
Fourteenth or Fifteenth Amendment violation but also an essential element of a § 2 violation.
City o f Mobile v. Bolden, 446 U.S. 55, 100 S. Ct. 1490 (1980). The 1982 amendments
eliminated the intent requirement in § 2 in favor of the results test promulgated in Whitcomb and
White. S. Rep. 97-417 at 15-22, 1982 U.S. Cong. Code & Admin. News 192-200.
20
made it clear that "a factual examination of the intent motivating those who designed the elec
toral districts at issue" was no longer required. S. Rep. 97-417 at 22, 1982 U.S. Cong. Code
& Admin. News at 200. A court could still assess intent, or it could assess "the impact of the
challenged structure or practice on the basis of objective factors, rather than making a determi
nation about the motivations which lay behind its adoption or maintenance." S. Rep. 97-417 at
27, 1982 U.S. Cong. Code & Admin. News at 205 (emphasis added). This does not mean,
however, that the court should not inquire into racial politics. To the contrary, Congress made
it clear that the key to proof of a claim under the results test is a showing that "racial politics
plav an excessive role in the political process" or that "racial politics . . . dominate the political
process. " S. Rep. 97-417 at 34, 1982 U.S. Cong. Code & Admin. News at 211. This inquiry
into either discriminatory intent or the dominance of the electoral process by racial politics
remains a central inquiry in every vote dilution case.
II. IN ANALYZING THE TOTALITY OF THE CIRCUMSTANCES APPELLEES
FIRST HAD TO PROVE DISPARATE OUTCOMES IN THE ELECTION OF
MINORITY AND MAJORITY CANDIDATES, WHICH THEY FAILED TO
DO.
The Supreme Court’s decision in this case did not alter the statutorily mandated fact
intensive local inquiry required of the trial court in a § 2 case; however, the Supreme Court’s
decision in this case and its companion case, Chisom v. Roemer, 111 S. Ct. 2354 (1991), avow
edly called into question the Gingles threshold test as a test of general applicability in vote
dilution cases. In this case and Chisom, the Supreme Court simultaneously held (1) that vote
dilution claims can be brought regarding judicial elections and (2) that the principle of one-
person, one-vote does not apply to judicial elections. The Court recognized that because of this
vast expansion of the concept of vote dilution, "serious problems lie ahead in applying the ’total
ity of the circumstances’ [test] described in § 2(b)." HLA, 111 S. Ct. at 2368.
21
The problem is that the concept of vote dilution is derived from legislative reapportion
ment cases which rely integrally on the one-person, one-vote concept to give meaning to the
concept of dilution.18 HLA, 111 S. Ct. at 2375 (Scalia, }., dissenting). These cases — begin
ning with Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362 (1964), and proceeding through Whit
comb, White, and Gingles itself — all conceive of vote dilution as the inability of a racial or
linguistic minority (because of its submersion in a white majority district) to elect representatives
who will further the interests of the group. All of these cases therefore incorporate the idea that
the problem is one of the lack of a voice responsive to community interests (rather than, as here,
simply the lack of enough successful Black or Hispanic candidates) and that it can be readily and
constitutionally remedied by drawing subdistricts in which the minority constitutes a majority.
The remedy thus becomes part of the test for vote dilution and finds expression in Gingles 1 —
which requires the minority group to demonstrate that it can form a majority of the electorate
in at least one subdistrict.
When — as in judicial elections — the election of candidates who will represent the
interests of their constituents is not the goal of the system (but rather, independence, account
ability, and administrative concerns determine the structure) and when the one-person, one-vote
measure of dilution does not apply, it becomes important to determine whether vote dilution can
be measured in any way other than by the one-person, one-vote principle and whether it can or
should be remedied in any way other than by subdistricting. This case, therefore, requires the
court to take a new look at the "totality of the circumstances" test — and, in particular, at the
18 The Senate Report to the 1982 amendments to § 2 specifically observed, "The principle
that the right to vote is denied or abridged by dilution of voting strength derives from the
one-person, one-vote reapportionment case of Reynolds v. Sims.” S. Rep. 97-417 at 19, 1982
U.S. Cong. Code & Admin. News at 196.
22
three Gingles factors as the threshold considerations preliminary to that test — even though the
underlying test, as developed in Whitcomb, White, and the amendments to § 2, has not changed.
While the concept of vote dilution derives from the one-person, one-vote principle, there
are other potential measures of vote dilution which do not rely on that principle. In her Gingles
concurrence, Justice O’Connor suggested three measures of minority voting strength which a
court might use in a vote dilution case: (1) mere proportionality; (2) the positing of an ideal
districting scheme together with a calculation of the number of candidates preferred by the
minority who would be elected under that scheme; and (3) the use of maximum feasible minority
electoral success as a measure of "undiluted" minority voting strength. 478 U.S. at 88-89, 106
S. Ct. at 2786. In her view, however, although any measure might be used, none was automatic
proof (or virtually automatic proof) of vote dilution. Rather, the actual local factors determining
election results must be taken into account in determining actionable vote dilution "in the first
instance" — as they were in Whitcomb and White. 478 U.S. at 97-99, 106 S. Ct. at 2790-91.
Of the three possible measures of vote dilution listed by Justice O’Connor, the simplest
is proportional representation. Call it what they will, that is the goal the Plaintiffs sought; using
regression analysis, its lack is ail they proved; and that is the standard which led Judge Bunton
to find a "violation" which had become inevitable once all proof other than race-based statistical
analysis had been excluded. The obvious stumbling block to using proportional representation
at all as the measure of vote dilution is the disclaimer expressly built into § 2 itself, which
provides "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(b).
However, while the proviso in § 2 unambiguously rejects the notion that any group has a right
to proportional outcomes, it endorses taking into account the extent to which minorities have
23
been elected to office as "ong circumstance which may be considered" in determining vote
dilution. Therefore, there is no barrier to beginning a vote dilution inquiry with an inquiry into
disproportionate results. At the same time, the statute clearly requires that the focus of the
court’s inquiry be — just as Whitcomb, White, Justice O’Connor, and § 2 itself said it must be
— on the "totality of the circumstances" — not, like the Plaintiffs and district court in this case
— solely on shortfall from proportional representation.
To prove vote dilution, then, the Plaintiff group may begin by proving (1) that it is a
protected racial or linguistic group whose members are qualified to vote within the political unit
whose voting practice or procedure the group challenges; (2) that qualified group members have
run for office and been rejected; and (3) that the proportion of elected class members falls short
of proportional representation relative to the qualified candidate pool. This part of the vote
dilution inquiry addresses the same concerns as Gingles 2 and 3, i.e ., whether the Plaintiffs can
make a showing of disparate impact.19
19 The proof of vote dilution is analogous to the proof of employment discrimination in Title
VII cases. In Texas o f Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089 (1981),
the Supreme Court held that a plaintiff may prove a prima facie case of discrimination by
showing
(i) that he belongs to a racial minority; (ii) that he applied and was qualified for
a job for which the employer was seeking applicants; (iii) that, despite his
qualifications, he was rejected; and (iv) that, after his rejection, the position
remained open and the employer continued to seek applicants from persons of
complainant’s qualifications.
Id.; 450 U.S. at 253, 101 S. Ct. at 1094 n. 6. Under Burdine, when a plaintiff has proved a
prima facie case of disparate treatment, the burden shifts to the defendant to produce admissible
evidence that the plaintiff was rejected or someone else was preferred for legitimate,
nondiscriminatory reasons. 450 U.S. at 253-55, 101 S. Ct. at 1094. If the defendant carries
this burden of production, he rebuts the presumption raised by the plaintiffs prima facie case,
and the inquiry proceeds to a new level in which the plaintiff retains the burden of proving that
the proffered reason was not the true reason for the employment decision. The Plaintiffs
burden then "merges with the ultimate burden of persuading the court that she has been the
24
The qualified candidate element of the Plaintiffs’ prima facie case requires some elabora
tion. Shortfall from proportional representation is necessarily measured against the pool of
qualified applicants for the position. Ward’s Cove v. Atonio, 490 U.S. 642, 109 S. Ct. 2115,
2122 (1989). As the Supreme Court held in Ward’s Cove, "petitioners’ selection methods. . .
cannot be said to have had a disparate impact on non-whites if the absence of minorities holding
such skilled jobs reflects a dearth of qualified non-white applicants for reasons that are not
petitioners’ fault." Id., at 2117, 2122. Thus, when all members of the electorate are eligible
to run for office, proportional representation is measured by the number of office-holders elected
as against the total number of minority class members of voting age. However, a plaintiff
minority group cannot make out a prima facie discrimination case when the minority candidate
pool is smaller than the percentage of minority class members elected to office.
In the instant case, the Plaintiffs did not validly make out even a case of disparate results.
When the small pool of Black lawyers constitutionally qualified to run for state district judge
(3.8% in Harris County) is compared with the percentage of Black judges elected (5.1% in
Harris County), Blacks are overrepresented on the bench, not underrepresented. Moreover, Dr.
Champagne testified that, though the percentage varies, the pool of qualified Black judicial
candidates is significantly smaller than the percentage of Black voters nationwide. Only a small
number (although an increasing number) of Blacks are available to serve as state district judges
— if they can be persuaded to run. Thus, it is not discrimination in the electoral process that
victim of intentional discrimination." Id., 450 U.S. at 255-56, 101 S. Ct. at 1094-95. The test
does not demand that the employer give preferential treatment to minorities nor does it require
him to restructure his employment practices to maximize the number of minorities hired. Id.,
450 U.S. at 259, 101 S. Ct. at 1096-98. While Burdine parallels the § 2 test, in Judge Wood’s
view it is unnecessary to go to Burdine to find a comprehensive test for vote dilution since § 2
and its own case law provide their own criteria.
25
keeps Black judges from being elected in numbers proportionate to the total Black population
— nor was there any such showing by the Plaintiffs. It is the small size of the candidate pool.
Judge Bunton’s holding that illegal vote dilution exists in the target counties in Texas is
clearly erroneous, even on the basis of disparate results alone. Assuming, however, for the sake
of argument that Judge Bunton did not err — as he did — in finding racial discrimination on the
basis of the mere showing that there are proportionately fewer Black state district judges in
Texas than there are Blacks in the total population of Texas, the Plaintiffs in this case still would
fall far short of having made out a violation of § 2 under the "totality of the circumstances" test.
III. APPELLEES ALSO FAILED TO PROVE THAT RACIAL POLITICS DENIED
MINORITIES EQUAL ACCESS TO THE POLITICAL PROCESS.
When this case was before this Court for the first time, Judge Wood argued that Judge
Bunton was able to rule in favor of the Plaintiffs only by greatly distorting the proof required
of a § 2 Plaintiff. She hereby incorporates that argument by reference. See Judge Wood’s
Appellant’s Brief at 28-39 and Supplemental En Banc Brief at 32-40. Essentially, Judge Wood
argued that Judge Bunton eliminated virtually all inquiry into the objective local factors which
determine the outcomes of Texas district judge races. By refusing to accept as valid the
Defendants’ multivariate regression analysis, which factored in the political party of the
candidate, Judge Bunton rejected the only statistical proof that could accurately explain the
outcomes in the partisan races being analyzed. Instead, he based his holding almost exclusively
on a statistically-based, non-causal standard of proof of racially polarized voting derived from
a plurality section of Gingles authored by Justice Brennan — Part III-C — and expressly rejected
by a majority of the Gingles court.
Judge Bunton went even further than Justice Brennan to reach egregiously erroneous
results. While Justice Brennan would exclude as irrelevant not only the causes of electoral
26
results but also the ra£g of the candidates — on the ground that only the status of the candidate
as the chosen representative of the minority group is important, 478 U.S. at 68, 106 S. Ct. at
2775 — Judge Bunton counted only races in which minorities ran and then excluded as
anomalous all races in which minorities ran and failed to receive the votes of the minority —
i.e., all races in which the minority candidate ran as a Republican. The result of these statistical
manipulations was a standard of proof under which legally significant racially polarized bloc
voting was established every time a Black Democrat was defeated but not when a Black
Republican was defeated. However, Judge Bunton concluded that, "Racially polarized voting
indicates that the group prefers candidates of the particular race" — a thesis contradicted by the
very proof he relied on. Op. at 21 (emphasis added).20
The "searching, practical evaluation" and "intensely local appraisal of the design and
impact" of the contested electoral practice or device, required by all members of the Supreme
Court in Gingles, 478 U.S. at 79, 101, 106 S. Ct. at 2781, 2793, clearly demonstrate that "ra
cial politics" play no role or, at best, an insignificant role in Texas judicial elections. A sound
analysis of genuine local factors in Texas’ partisan district judge races shows that, as Dr.
Taebel, Dr. Champagne, and Judge Davidson testified, partisan voting far better explains the
results in Texas district judge races than racial voting. Indeed, Defendants introduced over
20 Justice Brennan’s test has its own problems. Under that test, illegal vote dilution can
never be statistically established in partisan races so long as Blacks remain Democrats and
Democrats (of whatever race) win, since Justice Brennan would count all races in which
minorities vote, regardless of the race of the candidate. Such an analysis of judicial races in
Hams County, Texas, for example, would show Black-preferred candidates winning more than
50% of the time — since more than 50% of all Harris County judges are Democrats and 97%
of all Black voters in Harris County prefer Democrats. The same test, however, would
inevitably show racially polarized voting in Dallas County — which is a heavily Republican
county in which Black voters vote as Democrats. See Judge Entz’s Brief on Remand.
Obviously, therefore, Justice Brennan’s theory does not offer a valid measure of racial
discrimination in partisan races any more than Judge Bunton’s does.
27
whelming evidence that the outcomes of state district judge elections in Harris County are
determined in the first instance by partisan voting and, secondarily, by discretionary judicial
voting based on factors such as incumbency, bar poll results and newspaper endorsements. The
Defendants demonstrated that most voters do not even know who judicial candidates are, much
less what their race is. The Plaintiffs were entirely unable to counter this proof by any showing
that Texas judicial elections are dominated by "racial politics," as required by § 2. To the
contrary, the witnesses for the Plaintiffs in Harris County were unable to point to any racial
slurs or incidents or invidious campaign practices, such as the slating of white candidates, to
support their racial discrimination claim. The district court was able to rule in favor of the
Plaintiffs only by dismissing the Defendant’s proof out of hand as "legally incompetent" or
"irrelevant" and by counting the Plaintiffs’ statistical proof as probative, even though it was
unauthenticated, out of date, and skewed to find racial politics by its very simplicity, i.e., a
virtually self-fulfilling prophecy. This is contrary to the statute, contrary to its legislative
history, and contrary to all judicial interpretations of § 2.
The instant case is, in fact, on all fours with Whitcomb: just as in that case, the Plaintiffs
were able to show only that, fielding only a few candidates for office (despite the total absence
of any white-imposed barriers to Blacks in the district judge electoral process), Blacks, together
with other Democrats, have not elected enough Black state district judges to roughly equal the
percentage of Blacks in the total population. This is exactly the type of showing which the
Supreme Court held in Whitcomb failed to show illegal vote dilution under the results test. 403
U.S. at 153, 91 S. Ct. at 1874. At best, it shows only dilution by partisan voting, not dilution
by the voting of racial preferences. Since partisanship and not racial politics actually determines
28
the results of Texas judicial elections, Judge Bunton erred in finding illegal vote dilution in the
target counties.
IV. APPELLEES FAILED TO PROVE THAT THE DEGREE OF ANY
VIOLATION FOUND JUSTIFIED THE EXERCISE OF REMEDIAL POWER,
GIVEN THE INTRUSIVENESS OF THE REMEDY SOUGHT.
A. Appellees Proved No Violation.
In each vote dilution case, the court must separately determine the existence and severity
of vote dilution and assess the state interests that would be affected. Then it must balance the
severity of the dilution against the intrusion on state interests necessary to cure it to determine
if a remediable violation of § 2 exists under the totality of the circumstances. In this case, the
Plaintiffs introduced only weak statistical proof of vote dilution divorced from reality. They
were unable to prove that the challenged election system was created or maintained as a pretext
for discrimination. They were unable to establish that creating guaranteed Black judicial benches
would serve any purpose other than to provide Black role models and were affronted at the mere
suggestion that Black judges would serve any specialized interests different from those served
by Texas’ majority judges. Thus they established no violation.
B. Appellees’ Proposed Remedy is Extreme and Intrusive.
Let us assume, however, that the Plaintiffs had been able to show some degree of actual
vote dilution in Texas district judge elections. At that point, the court must inquire whether the
dilution can be remedied without great violence to state institutions. Such an inquiry is built into
Gingles 1, which requires that Plaintiffs seeking to establish illegal vote dilution in at-large
districts demonstrate that at least one minority/majority district meeting constitutional guidelines
(of one-person, one-vote, compactness, etc.) can be drawn. As discussed below, the Gingles
remedy may not be appropriate in all cases, especially in cases such as this one. Nevertheless,
29
the Plaintiffs must be required (as they always have been) to state what remedy they seek as part
of their burden of proof in the liability stage of a vote dilution inquiry and to put on evidence
to show that the remedy sought does not intrude impermissibly on state interests, and thus is not
beyond the power of the court — or of Congress — to provide.
Most vote dilution cases prior to this one sought subdistricting — pursuant to Gingles 1
— to allow minorities an enhanced opportunity to ensure the election of minority legislators,
councilmen, or board or commission members. In each such case there was little or no question
that the remedy sought did not abuse state goals and policies, was constitutional, was effective,
and was tailored to address the grievance expressed in the § 2 claim—the inability of minority
class members to make their interests heard within the pre-existing legislative or board district.
This case is fundamentally different.
First, as both the panel and the en banc concurring minority in this case held, district
court judges are single-member office holders who wield full power in their courts. Any subdis
tricting remedy would necessarily, therefore, thwart the State’s fundamental political decision
"to have trial judges who wield full judicial authority alone, a structure we must accept."
LULAC, 914 F.2d at 649 (Higginbotham, J., concurring). As this Court foresaw,
[sjubdistricting would not create an equal opportunity for representation in deci
sion-making . . . . [R]ather than provide minorities with representation in all
decisions, [subdistricting a single-member office] simply allocate^] judges, and
thus judicial decisions among various population groups. The Voting Rights Act
does not authorize such allocation. It cannot be made to authorize allocating
judges by simply restating the office of district judge as a shared office or by
asserting that the "function" of an office is not relevant. . . . Function is relevant
to the threshold question of what features of the state arrangement define the
office.
Id. Justice Stevens, in his majority opinion in this case, also recognized that
the State’s interest in electing judges on a district-wide basis may preclude a
remedy that involves redrawing boundaries or subdividing districts, or may even
30
preclude a finding that vote dilution has occurred under the "totality of the
circumstances."
111 S. Ct. at 2380. The case was remanded so that the weight to be assigned such issues could
be assessed. Id., at 2381.
Moreover, the evidence at trial was overwhelming that the remedy sought by the Plain
tiffs ran directly counter to the historical preference of the citizens of Texas for an elected
judiciary in which each judge is accountable to each voter and independent from special interest
groups. There was overwhelming evidence of the destructiveness of the proposed remedy on
venue, on jury selection pools, on docket equalization, and on Texas’ specialized court system.
The subdistricting remedy sought would have also divorced the electoral district from the
county-wide jurisdictional district, disenfranchising 57/59 or 58/59 of all of the voters for each
judge in Harris County, thereby greatly decreasing minority voting power.21 In other words,
Texas’ race-neutral but compelling state interests in structuring its judicial election system were
to be sacrificed to the introduction of racial politics into judicial elections in which they did not
previously exist even though the cure could not remedy the disease.
The Interim Plan actually imposed by Judge Bunton had the worst of the destructive fea
tures foretold by Defendants’ witnesses. The Interim Plan would have thrust Texas’ judicial
election system into chaos. By assigning judges to legislative districts — two to most Demo
cratic districts and one to Republican districts — it directly enhanced Democratic political power
but only incidentally enhanced minority political power. It disenfranchised most voters in most
elections and ran roughshod over the equal protection clause of the Fourteenth Amendment to
21 Judge Higginbotham’s concurring en banc opinion recognized the State’s "compelling
interest in linking jurisdiction and elective base forjudges acting alone and the risk that breaking
the line might well lessen minority influence." 914 F.2d at 649.
31
the United States Constitution and the constitutional principle of one-person, one-vote. It
courted severe sixth amendment problems, since that amendment guarantees the right to a jury
drawn from a cross section of the community, and the relevant community has been defined by
both state and federal courts as the judicial district. Williams v. Florida, 399 U.S. 78, 96, 90
S. Ct. 1893, 1904 (1970); Williams v. Superior Court, 263 Cal. Reptr. 503, 781 P.2d 537
(1989). It supplanted Texas’ goals in structuring its election system and its carefully crafted
means for implementing those goals. Thus, both the remedy sought by Plaintiffs/Appellees and
the remedy granted by Judge Bunton evinced an extreme intrusion into the area of a state’s
power to structure its own electoral systems.
C. Appellees’ Remedy Is Impermissibly Intrusive
Under Statutory and Constitutional Guidelines.
Given the essentially technical violation shown in this case, if any, and the extremely
broad and destructive remedy, federal law provides the Court established guidelines for
balancing violation, remedy and state interests. Section 2 of the Voting Rights Act was enacted
pursuant to the equal protection clause of the Fourteenth Amendment to the United States
Constitution. Rogers v. Lodge, 458 U.S. 613, 617, 102 S. Ct. 3272, 3275 (1982).22 While
Congress’ enforcement powers under the Fourteenth and Fifteenth Amendments are broad, they
are not unlimited:
Specifically, there are at least three limitations upon Congress’ power to enforce
the guarantees of the Civil War Amendments. [1] First, Congress may not by
legislation repeal other provisions of the Constitution. [2] Second, the power
granted to Congress was not intended to strip the States of their power to govern
themselves or to convert our national government of enumerated powers into a
22 Section 2 is also derived from the Fifteenth Amendment, but ”[t]he [Fifteenth]
Amendment’s command and effect are wholly negative"; that Amendment provides exemption
from discrimination on account of race but does not confer suffrage on anyone. City o f Mobile,
Ala. v. Bolden, 446 U.S. 55, 61-62, 100 S. Ct. 1490, 1497 (1980).
32
central government of unrestrained authority over every inch of the Nation. [3]
Third, Congress may only "enforce" the provisions of the amendments and may
do so only by "appropriate legislation."
Oregon v. Mitchell, 400 U.S. 112, 128, 91 S. Ct. 266, 267 (1970) (emphasis added). As the
Supreme Court has recognized, "’Each State has the power to prescribe the qualifications of its
officers and the manner in which they shall be chosen.’" Gregory v. Ashcroft, ___U .S .___ ,
111 S. Ct. 2395, 2400-01 (1991) (quoting Boyd v. Thayer, 143 U.S. 135, 161, 12 S. Ct. 375,
381-81 [1892]). It has further recognized that the authority of the people to determine the
qualifications of their most important government officials and the establishment and operation
of their own government lies at "’the heart of representative government’” and is protected by
the Tenth Amendment to the United States Constitution and the Guaranty Clause.23 Id. at 2402
(quoting Bernal v. Fainter, 467 U.S. 216, 221, 104 S. Ct. 2312, 2316 [1984]); see also Duncan
v. McCall, 139 U.S. 449, 11 S. Ct. 573, 577 (1891). This constitutionally mandated balance
of power between the states and the federal government was adopted by the Framers of the
Constitution to insure the protection of "’our fundamental liberties’" and to "reduce the risk of
tyranny and abuse from either front." Id., at 2400 (quoting Atascadero State Hosp. v. Scanlon,
473 U.S. 234, 242, 105 S. Ct. 3142, 3147 [1985]); see also E.E.O.C. v. Wyoming, 460 U.S.
226, 103 S. Ct. 1054, 1060 (1983) ("the unique benefits of a federal system in which the states
enjoy a ’separate and independent existence’ [must] not be lost through undue federal inter
ference in certain core state functions"); Id., at 1072 (Burger, C.J., dissenting) (the Fourteenth
23 The Guaranty Clause provides that ”[t]he United States shall guarantee to every State in
this Union a Republican Form of Government," U.S. Const, art. IV § 4, while the Tenth
Amendment provides that ”[t]he powers not delegated to the United States by the Constitution,
nor prohibited to it by the States, are reserved to the States respectively, or to the people." U.S.
Const. Amend. X. Copies of the Guaranty Clause and the Tenth Amendment are included in
the Appendix at 5a and 6a respectively.
33
LULAC, 914 F.2d at 630-31. The concurring minority in this case similarly "would not rest on
inference to support such a grant of authority. It would run counter to fundamental concepts of
federalism." Id. at 649 (Higginbotham, J., concurring).
Section 2 merely prohibits conduct which results in dilution of the votes of protected
classes; it nowhere evinces an express intent to impose entire federally-created judicial selection
systems on states to eliminate resultant vote dilution. And indeed, the legislative history of the
1982 amendments to § 2 indicates that Congress never envisioned that § 2 would be invoked to
force the dismantling and restructuring of entire state electoral systems — such as a state’s dis
trict court election system — to ensure an electoral structure more responsive to the votes of
protected minorities. Indeed, Congress’ official report on the 1982 amendments to the Voting
Rights Act concluded that § 2 as amended "will not result in wholesale invalidation of electoral
structures." S. Rep. No. 97-417 at 35, 1982 U.S. Code Cong. & Admin. News at 213
(emphasis added). Yet, that is exactly how § 2 has been used in this case.
Since § 2 says not a word about the dismantling and restructuring of state election sys
tems that merely have the result of diluting the votes of protected classes, and since it "defies
common sense," as well as legislative history, to believe that Congress, in enacting or amending
§ 2, intended to impose such a burden on the states, it must be inferred that Congress did not
create a right in minority voters to force the dismantling and restructuring of a State’s district
judge election system to remedy resultant vote dilution. See Pennhurst, 451 U.S. at 27-31, 101
S. Ct. at 1545-47. Consequently, it must be inferred that Judge Bunton erred.
The constitutional tensions raised by this case are implicitly present in every application
of the totality of the circumstances test mandated by § 2 of the Voting Rights Act, yet they have
lain quiescent until now because Gingles (and its redistricting predecessors back to Reynolds v.
35
Sims) have built into the test for vote dilution a constitutional remedy applicable to most cases:
if the problem is the inability of minorities to make their racial interests known in a large
district, the problem can be cured with no constitutional violation and with a minimal intrusion
on state affairs by carving up one large multi-member district into smaller districts in which the
minority can be guaranteed a voice. In a case such as the present one, however, the constitu
tional concerns raised cannot be simply accommodated by subdistricting; indeed, any such
remedy would be deeply intrusive on the right of the State of Texas to structure its own govern
ment. Moreover, such a remedy would not cure the dilution complained of and is not tailored
to be commensurate with the violation.
In every § 2 case, the plaintiff group must then, as part of the totality of the
circumstances test, propose a remedy for its grievance (just as it must under Gingles 1); and it
must defend that remedy against evidence that it intrudes on the constitutional rights of the State
to structure its core functions, that it is non-curative and/or that the cure is incommensurate with
the violation. A strong showing of practices such as slating, non-responsiveness of officials to
the interest of the minority group, an arbitrary procedure that just "happens" to discriminate
against minorities, racial name-calling in political campaigns, and a recent history of racism in
local electoral practices would strongly tend to establish illegal vote dilution, but a feeble
showing of purportedly disparate results in a system otherwise specifically held not to have been
adopted or perpetuated to accomplish impermissible racial objectives (i.e., a showing such as
that made by the Plaintiffs/Appellees in this case) would not. Moreover, the greater the showing
of genuine racial discrimination in the electoral process, the greater the justification for a more
intrusive remedy. Intentional racism (such as opening the polls to Blacks for only three hours)
would justify a much more intrusive remedy than mere racially disproportionate results; but even
36
disproportionate results, when sufficiently tainted by racial politics, could justify imposition of
an unintrusive remedy. For example, if the state’s interest is in electing its judges from
geographically distinct districts and yet it makes an exception and elects two judges from one
large district with the effect of diluting minority votes in that one district, a slight showing of
racial politics might justify splitting the lone two-judge district into two districts.
The balancing test set out above derives from the requirements of § 2 itself and is en
joined on the courts as a matter of law, just as it is in all cases that probe the limits of
Congressional intrusion upon the power of the states to structure their own government. In the
instant case, such a balancing test clearly shows that the remedy for vote dilution proposed by
the Plaintiffs and that adopted by Judge Bunton were non-curative, were not tailored to correct
for dilution, and were unconstitutionally intrusive on the State of Texas’ constitutional right to
structure its own judicial election system.
V. FINALLY, THE REMEDY STAGE OF A VOTE DILUTION CASE — IF ANY
— MUST PROCEED WITHIN STRICT CONSTRAINTS.
Once the Court has made a determination (1) that the minority group’s electoral results
are disproportionately low when measured against the minority candidate pool, (2) that the
electoral process is, in actual local fact, not equally open to the minority group because of
dominance by racial politics, and (3) that the remedy sought is curative, commensurate with the
violation, and not unconstitutional, the focus shifts to the remedial stage of the proceedings.
This must proceed, according to well-established precedent, by the federal court’s granting the
appropriate state or local authorities an adequate opportunity to constitutionally remedy the
defects in the dilutive scheme or practice. Reynolds v. Sims, 377 U.S. 533, 586, 84 S. Ct.
1362, 1394 (1964). Only if the local authorities fail to act in a timely fashion may the court
devise its own plan. See McDaniel v. Sanchez, 452 U.S. 130, 150, 101 S. Ct. 2224, 2236 n.
37
30 (1981); Wise v. Lipscomb, 437 U.S. 535, 540, 98 S. Ct. 2493, 2497 (1978); Chisom v.
Roemer, 853 F.2d 1186, 1192 (5th Cir. 1988).
Because the construction of state electoral practices and procedures is primarily the duty
and responsibility of the State (and is, indeed, a fundamental state power), a federal court will
be held to a higher standard than the legislature in devising a corrective plan. Wise, 437 U.S.
at 540, 98 S. Ct. at 2497; McDaniel, 452 U.S. at 139, 101 S. Ct. at 2230; Connor v. Finch,
431 U.S. 407, 415, 97 S. Ct. 1828, 1833 (1977). In fashioning a remedial plan or choosing
among plans, a federal district court should "follow the policies and preferences of the State, as
expressed in statutory and constitutional provisions" and "should not preempt the legislative task
nor ’intrude upon state policy any more than necessary.’" Upham v. Seamon, 456 U.S. 37,
41-42, 102 S. Ct. 1518, 1521 (1982) (per curiam) (quoting White v. Weiser, 412 U.S. 783, 795,
93 S. Ct. 2348, 2355 (1973). It is impermissible for a trial court to cut a broad swath qcross
state goals and policies, to implement its own preferences, or to impose experimental, non-
democratic electoral processes on all the citizens of a state to enhance the votes of some, as
Judge Bunton did in this case. See Whitcomb, 403 U.S. at 160, 91 S. Ct. at 1878 (the District
Court erred in fashioning a court-ordered plan that disestablished entire county district and
intruded upon state policy choices more than necessary to correct for violation); Martin v.
Mabus, 700 F. Supp. 327, 337 (S.D. Miss. 1988) (rejecting limited voting as a remedy for vote
dilution as experimental and contrary to most Mississippi election laws, the policy contained
therein, and "to most general concepts of a democratic two-party system").
The Plaintiffs/Appellees in this case have indicated that they will seek a cumulative voting
remedy should this case ever proceed to the remedial stage. First, it is improper for Plaintiffs
to propose remedies at the remedial stage which are not litigated at trial since the proposed
38
remedy is part and parcel of the balancing test which the Court must conduct in the liability
phase to determine whether a remediable violation exists. Second, cumulative voting does not
remedy vote dilution since it segregates minority votes, causing minority voters to lose their
influence on most elections in order to increase their influence in a few elections. Moreover,
cumulative voting presupposes — contrary to the evidence — that minority voters’ only interest
is in electing a candidate of their race and that they will know who that candidate is. Finally,
cumulative voting is an experimental, anti-democratic process that is entirely alien not only to
Texas election laws and policies but to American laws and policies in general. The introduction
of such a radically new procedure into a state’s electoral process should come from the people
after full debate, not from the federal courts by fia t, as the Court wisely pointed out in
Martin.™
VI. THE DISTRICT COURT CLEARLY ERRED IN FINDING ILLEGAL VOTE
DILUTION IN STATE DISTRICT JUDGE ELECTIONS.
Under the arguments and authorities set forth above, the district court in this case clearly
erred on any of a number of grounds. Judge Bunton followed a standard of proof endorsed by
no authority but his own which departed critically from all Supreme Court authority on point.
He rejected Defendants’ evidence as "irrelevant" and "legally incompetent" on no authority but
his own. He accepted deeply flawed, outdated, unauthenticated, and unproduced evidence from
the Plaintiffs as authoritative. He endorsed a non-causal, statistically-based standard of proof
24 Martin was a challenge to Mississippi’s system of electing circuit, chancery, and some
county court judges. Having found vote dilution, the Court permitted the plaintiffs to re-open
the evidence in the remedy phase to present proof of alternative voting remedies instead of
single-member subdistricts. 700 F. Supp. at 336. The plaintiffs introduced evidence of a
limited voting or cumulative voting procedure, which, as set forth above, the Court rejected.
The district court, in rejecting that demand, wisely cautioned against "imposing a radically new,
judge-made process." Id.., at 337.
39
of vote dilution which expressly excluded from consideration the actual dominant factor in local
politics — political partisanship. He held the barest minimum of a statistical showing of
disparate election results sufficient virtually by itself not only to establish vote dilution but to
justify the immediate and total restructuring of Texas’ judicial election system. With only a
cursory glance towards the Texas legislature, he constructed and imposed his own personal judi
cial election system. These errors afford this Court numerous grounds to reverse the decision
of the district court and render judgment for Defendants.
CONCLUSION
WHEREFORE, for the foregoing reasons, Appellant/Defendant/Intervenor Harris County
District Judge Sharolyn Wood respectfully requests that the Court reverse the judgment of the
District Court and render judgment for Defendants/Appellants.
Respectfully submitted, - .
PORTER & CLEMENTS
3500 NCNB Center
700 Louisiana Street
Houston, Texas 77002-2730
Telephone: (713) 226-0600
Facsimile: (713) 228-1331
ATTORNEYS FOR APPELLANT/DEFENDANT/
INTERVENOR HARRIS COUNTY DISTRICT
JUDGE SHAROLYN WOODOF COUNSEL:
Michael J. Wood
Attorney at Law
440 Louisiana, Suite 200
Houston, Texas 77002
Telephone: (713) 228-5101
Facsimile: (713) 223-9133
40
CERTIFICATE OF SERVICE
I certify that on this 6th day of September, 1991,1 sent a copy of the foregoing document
by first class United States mail, postage prepaid, to each of the following: William L. Garrett,
Garrett, Thompson & Chang, 8300 Douglas, Suite 800, Dallas, Texas 75226; Rolando Rios,
Southwest Voter Registration & Education Project, 201 N. St. Mary’s, Suite 521, San Antonio,
Texas 78205; Sherrilyn A. Ifill, NAACP Legal Defense and Educational Fund, Inc., 99 Hudson
Street, 16th Floor, New York, New York 10013; Gabrielle K. McDonald, 301 Congress
Avenue, Suite 2050, Austin, Texas 78701; Edward B. Cloutman, III, Mullinax, Wells, Baab &
Cloutman, P.C., 3301 Elm Street, Dallas, Texas 75226-1637; Robert H. Mow, Jr., Hughes &
Luce, 2800 Momentum Place, 1717 Main Street, Dallas, Texas 75201; Walter L. Irvin, 5787
South Hampton Road, Suite 210, Lock Box 122, Dallas, Texas 75232-2255; Susan Finkelstein,
Texas Rural Legal Aid, Inc., 201 N. St. Mary’s #600, San Antonio, Texas 78205; Renea Hicks,
Special Assistant Attorney General, P. O. Box 12548, Capitol Station, Austin, Texas 78711-
2548; and Seagal V. Wheatley, Oppenheimer, Rosenberg, Kelleher & Wheatley, Inc., 711
Navarro, Sixth Floor, San Antonio, Texas 78205.
3285C:\DOCS\W0027001\ENBANC.001
41
42 § 1973 PUBLIC HEALTH AND WELFARE
SUBCHAPTER I-A—ENFORCEMENT OF VOTING RIGHTS
Law Review Commentaries
••Remedy” rationale for requiring or permitting
otherwise prohibited discrimination: How the
Court overcame the Constitution and the 1964
Civil Rights Act. Lino A. Graglia, 22 Suffolk
U.L.Rev. 569 (1988).
§ 1973. Denial or abridgement of right to vote on account of race or color
through voting qualifications or prerequisites; establishment of viola
tion
(a) No voting qualification or prerequisite to voting or standard, practice, or
procedure shall be imposed or applied by any State or political subdivision in a
manner which results in a denial or abridgement of the right of any citizen of the
United States to vote on account of race or color, or in contravention of the
guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b)
of this section.
(b) A violation of subsection (a) of this section is established if, based on the
totality of circumstances, it is shown that the political processes leading to nomina
tion or election in the State or political subdivision are not equally open to partic
ipation by members of a class of citizens protected by subsection (a) of this section in
that its members have less opportunity than other members of the electorate to
participate in the political process and to elect representatives of their choice. The
extent to which members of a protected class have been elected to office in the State
or political subdivision is one circumstance which may be considered: Provided, 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.
(As amended Pub. L. 97-205. § 3, June 29. 1982, 96 StaL 134.)
Historical and Statutory Notes
1982 Amendment. Pub. L. 97-205 redesignated
existing provisions as (a), in subscc. (a), as so
redesignated struck out the comma following
‘‘voting”, substituted “in a manner which results
in a denial or abridgement of* for ”to deny or
abridge”, inserted ”, as provided in subsection (b)
of this section” following ”in contravention of the
guarantees set forth in section 1973b (0(2) of this
title”, and added subsec. (b).
Effective Date of 1982 Amendment. Section 6
of Pub. L. 97-205 provided that: '’Except as
otherwise provided in this Act, the amendments
made by this Act (enacting section 1973aa-6 of
this title, amending this section and sections 1973b
and 1973aa-la of this title, and enacting provi
sions set out as notes under this (ection and
sections 1971. 1973b. 1973aa-la and l973aa-6 of
this title] shall take effect on the date of the
enactment of this Act (June 29, 1982].”
Short Title of 1982 Amendment. Section 1 of
Pub. L. 97-205 provided: “That this Act (enact
ing section 1973aa-6 of this title, amending sec
tions 1973. 1973b. and 1973aa-la of this title, and
enacting provisions set out as notes under this
section and sections 1971, 1973b. I973aa-la. and
1973aa-6 of this title] may be cued as the ‘Voting
Rights Act Amendments of 1982*.”
Legislative History. For legislative history and
purpose of Pub. L. 97-205. see 1982 U. S. Code
Cong, and Adm. News. p. 177.
Cross References
Voting Accessibility for the Elderly and Handi
capped Act. construction of not to impair any
right guaranteed by this subchapter, see section
1973ee-5 of this title.
West’s Federal Practice Manual
Inquiry and jurisdiction, see § 12293.
One man, one vote, see § 12284.
Law Review Commentaries
Anti-subordination above ail: Sex, race, and
equal protection. Ruth Colker, 61 N.Y.U.L.Rev.
1003 (1986).
Application of Voting Rights Act to communi
ties containing two or more minonty groups—
when is the whole greater than the sum of the
parts? Rick G. Strange, 20 Texas Tech L.Rev. 95
(1989).
Beyond civil rights restoration legislation: Res-
tructing Title VII. Roy L. Brooks, 34 St. Louis
U.LJ. 551 (1990).
Defining the minority-preferred candidate un
der Section 2. Note, 99 YaJe LJ. 1651 (1990).
Enforcing the Voting Rights Act in Mississippi
through litigation. Carroll Rhodes, 57 Miss.LJ.
705 (1987).
Home rule cities and municipal annexation in
Texas: Recent trends and future prospects. Rob
ert R. Ashcroft and Barbara Kyle Balfour, 15 St.
Mary's L J. 519 (1984).
“OfTicial English”: Federal limits on efforts to
curtail bilingual services in the states. 100 Har
vard LRcv. 1345 (1987).
Protest, politics, and litigation: Political and
social change in Mississippi. Frank R. Parker, 57
Miss.LJ. 677 (1987).
Raising politics up: Minority political partic
ipation and Section 2 of the Voting Rights Act.
Kathryn Abrams. 63 N.Y.U.L.Rev. 449 (1988).
State employee discrimination claims—is the
conflict between Title VII and Section 198 re
solved? 61 Notre Dame L.Rev. 88 (1986).
la
CONSTITUTION Art 5, § 7
Not* 1
same manner aa issues of fact are determined in
other civil actions, does not change Court of Civil
Appeals to trial court with powers of judge or
jury to hear evidence and resolve disputed fact
issues. Id.
Even if Court of Civil Appeals had jurisdiction
to render declaratory judgment, it could only be
in those cases where material facts are estab
lished beyond dispute. Id.
34. Vacancies
The Chief Justice of the Supreme Court of
Texas may assign retired appellate court judges
to active duty on any Court of Civil Appeals only
in those cases where the particular Court of Civil
Appeals lacks a full complement of three judges
by reason of a vacancy or due to the disqualifica
tion, absence or inability to serve of a regular
member of such Court of Civil Appeals. Op.
Atty.Gen.1966, No. C-734.
35. Rules of decision
It is constitutional duty of the Court of Civil
Appeals to follow the law as announced by the
Supreme Court where the identical question has
been decided. St. Paul Ins. Co. v. Gallup (Civ.
App.1974) 506 S.W.2d 757, affirmed 515 S.W.2d
249.
§ 7. Judicial Districts; District Judges;
disqualification of Judge
Sec. 7. The State shall be divided into judicial districts, 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.
Amended Nov. 5, 1985.
Amendment adopted in 1985 was proposed by
Acts 1985, 69th Leg., SJ.R. No. 14. § 3.
Cross References
Judicial Districts Act of 1969, see Vernon's
Ann.Civ.St. art. 199a.
Law Review Commentaries
Court reform, Texas style. Clarence A. Guit-
tard, 21 Southwestern LJ. (Tex.) 451, 456 (1967).
33
2a
Notes of Decisions
Party to suit 17
1. Construction and application
Where trial court and Court of Civil Appeals
had refused to enjoin placing of nominee's name
on ballot as candidate for judgeship and to de
clare that candidate was not qualified to occupy
the office and, in the meantime, individual had
been elected and was occupying office, it would
have been improper for Supreme Court to grant
36. Questions of fact
Phrase “questions of fact" is, in context of
this section providing for decisions of Courts of
Appeals to “be conclusive on all questions of fact
brought before them on appeal or error,” legal
term of art signifying questions of weight, and
preponderance of evidence. Combs v. State (Cr.
App.1982) 643 S.W.2d 709, on remand 652 S.W.2d
804.
37. Criminal cases
Criminal cases are not within provision of this
section stating that decisions of the Courts of
Appeal Bhall be conclusive on all questions of
fact brought before them on appeal or writ of
error. Arvay v. State (App.1983) 646 S.W.2d
320, review refused.
Unless legislature prescribes to contrary,
Court of Appeals has authority under this sec
tion to review unassigned errors shown by face
of record in criminal appeals when, in Court's
opinion, it is in interest of justice to do so.
Smith v. State (App.12 Dist.1983) 654 S.W.2d
539.
Where defendant has been deprived of due
process, it is Court of Appeals’ constitutional
duty to take appropriate decisional action to en
force such constitutional protections. Skelton v.
State (App. 12 Dist.1983) 655 S.W.2d 302, error
refused.
terms or sessions; absence, disability or
CONSTITUTION
Art. 5, § 7
Not* 1
declaratory relief, since declaranon of rights
could not finally settle controversy; only coer-
eve relief available was quo warranto to oust
judge from office. State ex rei. McKie v. Bull
ock (Sup. 1973) 491 S.W.2d 659.
Even though judge of the 88th judicial distort
heard the original divorce suit which was filed
in the 159th district and entered the basic judg
ment which led to contempt proceedings in which
husband was found in contempt for retusmg to
answer questions, the judge had neither a right
nor a duty to perform thereafter in connection
with the judgment except as a judge of the lo9th
district court so that judge s order holding hus
band guilty of contempt of court m the 88th
district court denied due process, and was func
tus officio and void; judge had no propneta^
interest in the judgment which could be enforced
on^by a judge sitting m § * * « * * « “
Ex parte Lowery (Civ.App.1975) 518 S.W.2d 897.
There is no provision in the State Constitution,
the Revised Civil Statutes, or the Election Code
that would require that the name of a state
district judge appointed on June 17, 1982. to fill a
vacancy on the Supreme Court created by the
death of the previous officeholder on June 10,
1982, and who serves in such office until Janu
ary 1 1983, because of the appointment, be
removed from the general election ballot as a
candidate for a state district judgeship; the Su
preme Court appointee, thus, may remain on the
November general election ballot as a candidate
for state district judge and, if reelected, may
assume the duties of that ofJ iMn7 T̂ Û R2V
1983. Election Law Opinion No. DAD-35 (1383).
4. Qualifications of judge
Pleadings, affidavits and evidence presented a
controverted fart question as to how long relator
had been or would have been a practicing lawyer
next preceding election day and hence manda
mus would not issue to compel county Republi
can Executive Committee to place relator’s name
on ballot of Republican primary election as a
candidate for nomination for office of District
Judge who, under this Article, must have been a
practicing attorney for four years next preced
ing the election. Ferris v. Carlson (Civ.App.
1958) 314 S.W.2d 295.
Where proposed candidate, who sought to
have his name placed on ballot for primary as
candidate for Republican nomination for judge
of District Court, was engaged in business of a
securities dealer, but he had a law license had
paid his State Bar dues, and claimed to be a
practicing lawyer, question whether he was a
“practicing lawyer'' within this article requiring
that judge of District Court be a “practicing
lawyer” or judge, or both combined, for four
yeara preceding the election, was a question of
mixed law and fact, which Republican Party
Executive Committee of county had no power to
determine, and committee had no right to refuse
him a place on the ballot. Ferris v. Carlson
(1958) 158 T. 546, 314 S.W.2d 577.
Neither courts nor legislature may add to
qualifications prescribed by Constitution for of
fice of distinct judge. Ex parte Lefors (1961) 171
Cr.R. 229, 347 S.W.2d 254.
Canons of Judicial Ethics have not been
adopted in Texas and do not have status of law.
McKnight v. State (Cr.App.1968) 432 S.W.2d 69.
5. Term of office
In view of severance clause, invalidity of pro
vision, in Vernon’s Ann.Civ.St. art. 199-160 cre
ating permanent district court, for election ot
judge to two-year term at first general election
did not affect remaining provisions of the act,
but constitutional provision setting four-year
term would be read into the act. Eades v. Drake
(1960) 160 T. 381, 332 S.W.2d 553.
Provision of Vernon's Ann.Civ.St a r t 199-160.
§ 4 for election of judge of permanent district
court to two-year term at first general election
was void as being at variance with requirement
of this section that the distinct court judges shall
be elected for a term of four years. Id.
6. Special judges
Attorneys were not authorized to elect special
judge merely because no session of distinct court
had been ordered by regular judge. Ex parte
Jones (Cr.App.1957) 298 S.W.2d 121.
8. Place of holding court
Trial court had authority to permit introduc
tion of additional testimony in action attacking
county school board trustees' order
tion even though hearing was not held m the
county seat. Barnhart Independent School Uist.
v. Mertzon Independent School Disti (Civ.App.
1971) 464 S.W.2d 197, ref. n.r.e.
17. Party to suit
Trial judge was not disqualified from presid
ing in a suit for an injunction restraining title
insurance company from practicing law on
ground that he was a member in the state bar, a
party to the suit Alamo Title Co. v. ban, Anttj-
nio Bar Ass n (Civ.App.1963) 360 S.W.2d 814, ref.
n.r.e.
§ 7a. Judicial Districts Board; reapportionment of judicial districts j
Sec 7a (a) The Judicial Districts Board is created to reapportion the judicial district.
34
3a
CONSTITUTION Art. 5, § 7a_
the president of the Texas Judicial Council, and one person who is licensed to practice law
in this state appointed by the governor with the advice and consent of the senate for a
term of four years. In the event of a vacancy in the appointed membership, the vacancy
is filled for the unexpired term in the same manner as the original appointment.
(c) A majority of the total membership of the board constitutes a quorum for the
transaction of business. The adoption of a reapportionment order requires a majority
vote of the total membership of the board.
(d) The reapportionment powers of the board shall be exercised in the interims between
regular sessions of the legislature, except that a reapportionment may not be ordered by
the board during an interim immediately following a regular session of the legislature in
which a valid and subsisting statewide apportionment of judicial districts is enacted by the
legislature. The board has other powers and duties as provided by the legislature and
shall exercise its powers under the policies, rules, standards, and conditions, not inconsist
ent with this section, that the legislature provides.
(e) Unless the legislature enacts a statewide reapportionment of the judicial districts
following each federal decennial census, the board shall convene not later than the first
Monday of June of the third year following the year in which the federal decennial census
is taken to make a statewide reapportionment of the districts. The board shall complete
its work on the reapportionment and file its order with the secretary of state not later
than August 31 of the same year. If the Judicial Districts Board fails to make a
statewide apportionment by that date, the Legislative Redistricting Board established by
Article III, Section 28, of this constitution shall make a statewide reapportionment of the
judicial districts not later than the 150th day after the final day for the Judicial Districts
Board to make the reapportionment.
(f) In addition to the statewide reapportionment, the board may reapportion the judicial
districts of the state as the necessity for reapportionment appears by redesignating, in
one or more reapportionment orders, the county or counties that comprise the specific
judicial districts affected by those reapportionment orders. In modifying any judicial
district, no county having a population as large or larger than the population of the
judicial district being reapportioned shall be added to the judicial district.
(g) Except as provided by Subsection (i) of this section, this section does not limit the
power of the legislature to reapportion the judicial districts of the state, to increase the
number of judicial districts, or to provide for consequent matters on reapportionment.
The legislature may provide for the effect of a reapportionment made by the board on
pending cases or the transfer of pending cases, for jurisdiction of a county court where
county court jurisdiction has been vested by law in a district court affected by the
reapportionment, for terms of the courts upon existing officers and their duties, and for
all other matters affected by the reapportionment. The legislature may delegate any of
these powers to the board. The legislature shall provide for the necessary expenses of
the board.
(h) Any judicial reapportionment order adopted by the board must be approved by a
record vote of the majority of the membership of both the senate and house of
representatives before such order can become effective and binding.
(i) The legislature, the Judicial Districts Board, or the Legislative Redistncang Board
may not redistnct the judicial districts to provide for any judicial district smaller m 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 o f _________ County.” No
redistricting plan may be proposed or adopted by the legislature, the Judicial Districts
Board, or the Legislative Redistricting Board in anticipation of a future action by the
voters of any county.
Adopted Nov. 5, 1985.
Amendment adopted in 1985 was proposed by
Acts 1985, 69th Leg., SJ.R. No. 14, § 1.
35
4a
Art. 4 REPUBUCAN GOVERNMENT Sec. 4
but title was taken by the United States,
the lands were property of the United
States and were therefore immune from
state or county taxes, even though title
was held in trust for the Indian tribe.
U.S. v. Board of Com’rs of Fremont
County, Wyo., C.C.A.Wyo.1944, 145 F.2d
329, certiorari denied 65 S.Ct. 563, 323
U.S. 804, 89 L.Ed. 641.
152. ----- Lumber
Tax imposed by state on taxpayers'
activities in severing lumber from
government land under contract with
government does not impose an uncon
stitutional burden on the federal govern
ment. Mulson v. Cook, Ark. 1946, 66
S.Ct. 663, 327 U.S. 474, 90 L.Ed. 793,
mandate conformed to 193 S.W.2d 818.
153. ----- Motor vehicles
Member of military force stationed
within military reservation was subject
to state motor vehicle tax on automobile
occasionally used on state highways.
State v. Storaasli, 1930, 230 N.W. 572,
180 Minn. 241, affirmed 51 S.Ct. 354, 283
US. 57, 75 L.Ed. 839.
154. Trespass or injury to lands
The regulations of Congress or a de
partment of the government governing
the right to pasturage on a national for
est reservation and prohibiting the gen
eral grazing of such lands are para
mount; hence, a state statute providing
that the owner of trespassing animals
{ shall not be liable in cases where there is
ic no lawful fence must give way to the
federal regulation. U.S. v. Gurley, D.C.
Ga.1922, 279 F. 874.
The State of Montana has no domin
ion over public lands, and it is within
the province of the United States to for
bid trespass. Shannon v. U.S., C.C.A.
Mont. 1908, 160 F. 870.
155. Weapons regulation
Where State s laws conflict with hunt
ing and firearms regulations of National
Park Service, promulgated pursuant to
authority under Art. 4, § 3, cl. 2 local
laws must recede. U.S. v. Brown, D.C.
Minn.1976, 431 F.Supp. 56, affirmed 552
F.2d 817, certiorari denied 97 S.Ct. 2666,
431 U.S. 949, 53 L.Ed.2d 266.
156. Wills, trusts, and estates
Whenever the question in any court,
state or federal, is whether a title to land
which had once been the property of the
United States has passed, that question
must be resolved by the laws of the Unit
ed States; but whenever, according to
those laws, the title shall have passed,
then that property, like all other proper
ty in the state, is subject to state legisla
tion, so far as that legislation is consist
ent with the admission that the title
passed and vested according to the laws
of the United States, and the state has an
undoubted right to legislate as she may
please in regard to the remedies to be
prescribed in her courts, and to regulate
the disposition of the property of her
citizens by descent, devise, or alienation.
Wilcox v. Jackson, 111.1839, 38 U.S. 498,
13 Pet. 498, 10 L.Ed. 264.
Section 4 . Republican Government
Section 4. The United States shall guarantee to every State in
this Union a Republican Form of Government, and shall protect
^ch of them against Invasion; and on Application of the Legisla
ture, or of the Executive (when the Legislature cannot be convened)
*gamst domestic Violence,
tv?
LIBRARY REFERENCES
fc^**** *nd Treatises
Judicial power over political questions, see Wright, Miller & Cooper, Federal
Practice and Procedure; Jurisdiction 2d § 3534 et seq.
WESTLAW ELECTRONIC RESEARCH
p ^ee WESTLAW guide following the Explanation pages of this volume.
537
5a
I
AMENDMENT X—RESERVED POWERS TO STATES
The powers not delegated to the United States by the Constitution^
nor prohibited by it to the States, are reserved to the States respect
tively, or to the people.
HISTORICAL NOTES
Proposal and Ratification
The first ten amendments to the Con
stitution were proposed to the Legisla
tures of the several States by the First
Congress on September 25, 1789, and
were ratified on December 15, 179L-;'
For the States which ratified these*"
amendments, and the dates of
ification, see Historical notes und«
Amendment 1.
LIBRARY REFERENCES
Administrative Law
Minority business set asides, localities, see West’s Federal Practice Manual
§§ 16555, 16556A.
Law Reviews
Adjudication of federal causes of action in state court. Martin H. Redish and
John E. Muench, 75 Mich.L.Rev. 311 (1976).
Making war: The president and congress. Graham T. Allison, 40 Law &
Contemp.Prob. (3) 86 (1976).
San Jose revisited: A proposal for negotiated modification of public sector
bargaining agreements rejected under Chapter 9 of the Bankruptcy Code.
Barry Winograd, 37 Hast.LJ. 231 (1985).
The doctrine of conditional preemption and other limitations on tenth amend
ment restrictions. Ronald D. Rotunda, 132 Pa.L.Rev. 289 (1984).
The scope of national power vis-a-vis the states: The dispensability of judicial
review. Jesse H. Choper, 86 Yale LJ. 1552 (1977).
WESTLAW ELECTRONIC RESEARCH
WESTLAW supplements U.S.C.A. electronically and is useful for additional
research. Enter a citation in INSTA-CITE for display of parallel citations
and case history. Enter a cor. stitution, statute or rule citation in a case law
database for cases of interest.
Example query for INSTA-CITE: 790 F.2d 978
Example query for United States Constitution: (first + 6 amendment) + s
religion
Example query for statute: "42 U.S.C.*" 4-4 1983
Also, see the WESTLAW guide following the Explanation pages of this
volume.
280
6a
I k t h e
lulled States (SJourt of
F oe t h e F if t h C ir c u it
No. 25172
E v ek lik e L e w is a n d M argaret T r u ss ,
y .
Appellants,
T h e H o u sih g A u t h o r it y of t h e C it y of
T alladega, A labama , et- al.,
Appellees.
A PPEA L FRO M T H E U K IT E D STATES D ISTR IC T COURT
FOR T H E H O R T H E R N D ISTR IC T OF ALABAMA
BRIEF FOR APPELLANTS
P eter A. H all
O rzell B il l ik g sl e y , J r .
1630 Fourth Avenue, North
Birmingham, Alabama
J ack G reekberg
C h a rles H . J okes , J r .
C h a rles S t e p h e k B alstok
Gabrielle A. K ir k
10 Columbus Circle
New York, New York 10019
Attorneys for Appellants
I N D E X
PAGE
Statement of the Case .................. 1
Specifications of Error .................................................. 3
A r g u m en t—
I. The Withdrawal of the Appellants’ Notices to
Terminate and Vacate Does Not Render This
Action Moot......................................................... 4
A. Appellants’ Individual Claims Are Not Moot 4
B. The Action on Behalf of the Class Is Not
Moot .............................................................. 7
C. The Resolution of the Recurring Issues Pre
sented by This Case is of Tremendous Pub
lic Importance ................................................ 8
II. The Housing Authority’s Assertion of Future
Compliance with the February 7, 1967 Depart
ment of Housing and Hrban Development Cir
cular Does Not Make This Action Moot ........... 10
C o n clu sio n .......................................................................................... 12
Certificate of Service 13
u
T able of Cases
PAGE
Bailey v. Patterson, 323 F.2d 201 (5th Cir. 1963), cert,
den. 376 U.S. 910 (1964) .......................................... 6
Cypress v. Newport News General and Nonsectarian
Hospital Association, 375 F.2d 648 (4th Cir. 1967)....6,11
Dixon v. Alabama State Board of Education, 294 F.2d
150 (5th Cir. 1961) ................................................... 11
Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966) ...... 7
Lewis et al. v. Housing Authority of the City of Talle-
daga, Alabama, C.A. No. 67-106 (N.D. Ala.) ............ 8
Eva Pearl Richardson v. Housing Authority of the
City of Bessemer, C.A. No .67-148 (N.D. Ala.) ...... 8
Richardson v. Housing Authority of the City of New
Bern, C.A. No. 678 (E.D. N.C.) ..... .......................... 8
Terry v. Housing Authority of the City of Florence,
Alabama, C.A. No. 67-232 (N.D. Ala.) ..................... 8
Thomas, et al. v. Housing Authority of the City of
Little Rock, Arkansas, C.A. No. L.R. 66-C-230 (M.D.
Ark.) .......................................................................... 8
Thorpe v. Housing Authority of the City of Durham,
No. 712, Oct. Term 1966 ............................................ 3
Thorpe v. Housing Authority of the City of Durham,
35 L.W. 4366 .............................................................. 10
United States v. W. T. Grant Co., 345 U.S. 629 (1953)....5,11
Williams v. Housing Authority of the City of Atlanta,
Georgia, C.A. No. 10796 (N.D. Ga.) ........................ 8
Ill
PAGE
R u l e s
Federal Rules of Civil Procedure, Buie 23(b)(2) ........ 2,7
Federal Buies of Civil Procedure, Buie 23(e) ............. 8
O t h e r A u t h o r it ie s :
Department of Housing and Urban Development Cir
cular, February 7, 1967 ...................................3,4,10,12
I k t h e
Inttefc States (Emtrt of Appeals
F or t h e F if t h C ir c u it
No. 25172
E v er lin e L e w is a n d M argaret T ru ss ,
v.
Appellants,
T h e H ou sin g A u t h o r it y op t h e C it y of
T alladega, A labama , et al.,
Appellees.
A PPEA L PRO M T H E U N IT E D STATES D ISTR IC T COURT
FO R T H E N O R T H E R N D ISTR IC T OF ALABAMA
BRIEF FOR APPELLANTS
Statement of the Case
This appeal is from an order of the United States Dis
trict Court for the Northern District of Alabama, dated
July 14, 1967, dismissing appellants’ complaint on the
ground that the action was moot.
On January 23, 1967, appellants, Negro tenants in the
Knoxville Homes, a housing project operated by the Hous
ing Authority for the City of Talladega, were notified by
mail that they would be required to vacate their tenancy
within ten days of the date of the letter. They were sub
sequently notified that they would have until February 10,
1967 to vacate the premises (R. 5). The Housing Authority
2
gave no reason for these notices, nor did it indicate that
the appellants would receive a hearing before eviction.
However, it has been subsequently made clear that appel
lant Everline Lewis was asked to vacate because her
daughter (who was not at that time living with her) was
expecting an illegitimate child and appellant Margaret
Truss was asked to vacate because she was expecting an
illegitimate child (R. 49). These notices to terminate and
vacate were issued pursuant to a current Housing Author
ity regulation adopted on February 21, 1964 which re
quires the automatic eviction of a tenant family if any
member of that tenant family is expecting or has an il
legitimate child (R. 12).
On February 10, 1967 appellants filed a complaint, motion
for temporary restraining order and a motion for prelim
inary injunction in the United States District Court for
the Northern District of Alabama, Eastern Division (R. 1,
13 and 16). In their complaint appellants sought an in
junction against the Housing Authority’s policy and prac
tice of automatically evicting a family living in one of its
public housing projects if a member of that family is ex
pecting or has an illegitimate child and from instituting
any further eviction proceedings pursuant to the com
plained of policies without indicating the reasons for the
eviction and providing an opportunity for a fair hearing
prior to eviction. A declaratory judgment was also sought
declaring this regulation and policy to be violative of
constitutionally and statutorily protected rights. The suit
was brought as a class action pursuant to Rule 23(b)(2)
of the Federal Rules of Civil Procedure.
On February 10, 1967 the Hon. H. H. Grooms entered
an order restraining the Housing Authority from evicting
or threatening to evict the appellants (R. 20). On Feb
3
ruary 20, 1967, the district court continued the temporary
restraining order previously entered on February 10th
until such time as either party made application for a
further hearing (E. 25). The Housing Authority, on Feb
ruary 28, 1967, filed a motion to dismiss and appellants
filed a motion in opposition (E. 32). A hearing on these
motions was set on the regular motion calendar for June 2,
1967. In a supplemental motion to dismiss dated May 31st,
the Housing Authority attached a copy of the revocation
of these eviction notices and contended this revocation
rendered the case moot (E. 34). On June 2, 1967, the dis
trict court dismissed appellants’ complaint on the basis
that the action had been rendered moot by the Housing
Authority’s recision of these notices (E. 38). Appellants
subsequently filed a motion for relief from the June 2nd
dismissal and a motion in response to the Housing Au
thority’s supplemental motion to dismiss (E. 40 and 43).
On July 14, 1967 the district court amended its order of
dismissal of June 2nd but refused to decide the constitu
tional issues raised by appellants because it appeared to
the court that the action was rendered moot by the recision
of the eviction notices and because counsel for the Housing
Authority stated it intended to comply with the circular
of the Department of Housing and Urban Development
which was involved in the decision of Thorpe v. Housing
Authority of the City of Durham, No. 712, October Term,
1966 (E. 49 and 50). Notice of appeal was filed on Au
gust 3, 1967.
Specifications of Error
1. The court below erred in finding that the Housing
Authority’s recision of the appellants’ notices to terminate
and vacate rendered the action moot.
4
2. The court below erred in finding that the Housing
Authority’s compliance with the February 7, 1967 Depart
ment of Housing and Urban Development circular ren
dered the action moot.
ARGUMENT
I
The W ithdraw al o f th e A ppellants’ Notices to Termi
nate and Vacate Does N ot R ender This A ction Moot.
A. Appellants’ Individual Claims Are Not Moot.
In their complaint appellants sought injunctive relief
against the Housing Authority from evicting tenant fam
ilies because of its regulation calling for the automatic
eviction of tenants if any member of the tenant family is
expecting or has an illegitimate child; evicting or threaten
ing to evict without indicating the reasons for the eviction
and affording an opportunity for a fair hearing prior to
eviction; segregating the public housing projects on the
basis of race or color, and failing to comply with federal
regulations relating to the operation of public housing
projects, particularly those regulations that require notices
to be posted stating that the projects are open to all appli
cants regardless of race or color. A declaratory judgment
that the complained of policies and practices were contrary
to rights guaranteed by constitutional and statutory pro
visions was also sought. The only action that the Housing
Authority took with respect to these complained of policies
and practices was to rescind appellants’ notices to termi
nate and vacate. This single act, according to the court
below, rendered the complete action moot and thus the
complaint was dismissed. It is clear that there are a num
ber of issues remaining which have not been resolved;
5
namely, the constitutionality of the Housing Authority’s
regulation, the racial segregation of its housing projects,
and its failure to post notices indicating that the housing
projects are open to all persons regardless of race or color.
With respect to these issues which appellants have raised
in their complaint, they have not had their day in court.
An injunction looks to the future and it is ordinarily
granted or denied on the basis of whether it appears needed
in order to protect the rights of the complainant. Discon
tinuance of alleged violations must be weighed in light of
all of these surrounding circumstances in order that a
reasonable prediction may be made as to the danger of a
future violation. The court, in exercising its discretion as
to whether or not to issue the injunction, should rely on
evidence surrounding these factors which can only be
adduced after a hearing. It is submitted that the court
below erred in refusing appellants an opportunity to dem
onstrate by a hearing that there was a danger of renewed
and future violations of their rights as well as those of
the class they represent. Under certain circumstances a
case may be rendered moot by discontinuance of alleged
unlawful acts if the defendant can demonstrate that there
is no reasonable expectation that the wrong will be re
peated. However, this burden is a heavy one. United
States v. W. T. Grant Co., 345 U.S. 629, 632-633 (1953).
The simple act of rescinding appellants’ notices to termi
nate and vacate hardly meets this burden.
It has long been recognized in this circuit that the volun
tary cessation of the alleged unlawful acts, without more,
does not render an action moot. The reason for this doctrine
is clear fo r:
What has been adopted can be repealed and what has
been repealed can be readopted. We conclude there
fore that the plaintiffs are entitled to have their in
6
junction against state action depriving them of their
constitutional rights based on the record at the time
the ease was tried. Anderson v. City of Albany, 321
F.2d 649, 657 (5th Cir. 1963).
Likewise, in Bailey v. Patterson, 323 F.2d 201, 205 (5th
Cir. 1963), cert. den. 376 U.S. 910 (1964), the court held
that plaintiffs were entitled to injunctive relief notwith
standing defendant’s cessation of the acts plaintiffs com
plained of because:
The threat of continued or resumed violations of ap
pellants’ federally protected rights remains actual. De
nial of injunctive relief might leave-appellees ‘free to
return to [their] old ways.’ United States v. W. T.
Grant, 345 U.S. 629. . ..
In Cypress v. Newport News General and Nonsectarian
Hospital Association, 375 F.2d 648 (4th Cir. 1967), the
acts of the defendant subsequent to the filing of the suit
were viewed thusly:
Such a last minute change of heart is suspect, to say
the least. We recently had occasion to observe in
Lankford v. Gelston, 364 F.2d 197, 203 (4th Cir. 1966),
under somewhat different circumstances, that ‘pro
testations of repentance and reform timed to anticipate
or to blunt the force of a lawsuit offer insufficient as
surance’ that the practice sought to be enjoined will
not be repeated. See United States v. Oregon State
Medical Soc’y, 343 U.S. 326, 333 (1952).
The need for injunctive relief is not to be judged
in a vacuum. Just as it is an equitable axiom that an
injunction will not issue merely because no demon
strable harm will result from its issuance, so an equity
court will unhesitatingly grant this relief where in its
7
estimation the circumstances reasonably indicate its
necessity. Our appraisal must take into consideration
more than the single, tardy, reluctant, and incomplete
step—the admission of Dr. Cypress.
Also see Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966).
However, in the instant case the Housing Authority has
in fact not discontinued the policy and practice of which
appellants complain, since the regulation which entitles
it to evict persons to whom illegitimate children are born
still exists (R. 12). Thus, appellants are still subjected to,
the ever present threat of eviction. It would seem that if
the Housing Authority really intended to cease this policy,
the regulation itself would be rescinded. However, no such
action has been taken by the Housing Authority.
Although appellants are free to reopen this case when
they are again threatened with eviction, they should not
be put to the burden of having to engage in a multiplicity
of suits when the lawfulness of the regulation subjecting
them to eviction can be determined in the present action.
Since the appellants are still living in the housing project
and still have illegitimate children in their family they are
continually subject to eviction and the case is in no way
moot.
B. The Action on Behalf of the Class Is Not Moot.
This action is brought pursuant to Rule 23(b)(2) of the
Federal Rules of Civil Procedure authorizing class actions.
Appellants are not only seeking relief for themselves but
for other persons similarly situated who have been sub
jected or may in the future be subjected to the conse
quences of the complained of policies. Therefore, even if
their individual claims were satisfied by actions taken by
the Housing Authority subsequent to the filing of the com
8
plaint, those acts cannot render the entire case moot and
thereby deny members of the represented class their right
to have determined the. constitutionality of the complained
of policies and practices.
Inherent in a class action is the assumption that it will
survive even if the representatives of the class have been
satisfied and want to discontinue it. Rule 23(e) of the
Federal Rules of Civil Procedure permits dismissal only
with approval of the court and notice to all members ofi
the class.
C. The Resolution of the Recurring Issues Presented by This
Case is of Tremendous Public Importance.
Whether public housing tenants have the right to a
formal statement of the reason for eviction and a fair
hearing on that reason prior to eviction* and whether
public housing tenants can be properly evicted because
they (or members of their family) bear illegitimate chil
dren** are issues which have been raised in numerous com
plaints in federal courts. Therefore, the regulation and
practices of the Talladega Housing Authority of which
appellants complain in the present action are not isolated
acts or policies limited to Talladega. These same policies
* E v a P ea rl R ich a rd so n v. H o u sin g A u th o r i ty o f the C ity o f B essem er,
C.A. No. 67-148 (N.D. Ala.) ; R ich a rd so n v. H o u sin g A u th o r i ty o f the C ity
o f N ew B ern , C.A. No. 678 (E.D. N.C.); T e rry v. H o u sin g A u th o r i ty o f
the C ity o f F lorence , A la b a m a , C.A. No. 67-232 (N.D. Ala.) ; Thom as,
et al. v. H o u sin g A u th o r i ty o f the C ity o f L it tle R o ck , A rka n sa s , C.A.
No. L.R. 66-C-230 (M.D. Ark.); L ew is e t al. v. H o u sin g A u th o r i ty o f
the C ity o f Talledaga, A la b a m a , C.A. No. 67-106 (N.D. Ala.) and W il
liam s v. H o u sin g A u th o r i ty o f the C ity o f A tla n ta , Georgia, C.A. No.
10796 (N.D. Da.).
** L ew is, e t al. v. H o u sin g A u th o r i ty o f the C ity o f Talladega, A labam a,
C.A. No. 67-106 (N.D. Ala.) ; R ich a rd so n v. H o u sin g A u th o r i ty o f N ew
B ern , C.A. No. 678 (E.D. N.C.) and T hom as, e t al. v. H o u sin g A u th o r i ty
o f the C ity o f L it tle R o ck , A rka n sa s , C.A. No. L.R. 66-C-230 (M.D. Ark.) .
9
and practices are being challenged in a number of cases
presently pending in this circuit as well as other circuits.
The question of whether a housing authority can effec
tively insulate itself from suit by acting with respect to
the named plaintiffs after a complaint is filed has a
tremendous bearing on the types of results which can be
gained through litigation. Housing authorities (as well as
defendants generally) will be armed with an effective
weapon to prevent their acts from ever being challenged
if this court upholds the district court’s denial of a hearing
which would at least have afforded appellants an oppor
tunity to prove their claims.
President Johnson has said the dispossessed Negro poor
“are another nation.” * The purpose of federally financed
low income public housing is “to remedy the unsafe and
insanitary housing conditions and the acute shortage of
decent, safe and sanitary dwellings for families of low-
income. . . 42 TT.S.C. §1401. The slums are the only
alternative for the poor if they can be evicted from public
housing arbitrarily by housing authorities whose policies
can never be challenged.
* Remarks of President Lyndon B. Johnson, at Howard University,
Washington, D.C., June 4, 1965, “To Fulfill These Rights,” p. 4:
“But for the great majority of Negro Americans—the poor, the
unemployed, the uprooted and the dispossessed—there is a much
grimmer story. They still are another nation. Despite the court
orders and the laws, despite the legislative victories and the speeches,
for them the walls are rising and the gulf is widening.”
10
II
The Housing Authority’s Assertion of Future Com
pliance with the February 7, 1967 Department of Hous
ing and Urban Development Circular Does Not Make
This Action Moot.
In the decision of the court below, the Hon. Judge H. H.
Grooms recognized that the Housing Authority had stated
in open court that it would in the future comply with the
[February 7, 1967] circular of the Department of Housing
and Urban Development considered in Thorpe v. Housing
Authority of the City of Durham, 35 L.W. 4366. Com
pliance with this circular, however, has relevance only to
one of the many policies and practices of which appellants
complain, namely, eviction without indicating the reasons
and without affording a hearing to challenge those reasons.
The many other issues raised in appellants’ complaint,
particularly the constitutionality of the Housing Author
ity’s regulation entitling it to evict persons simply because
such persons or members of their family have an il
legitimate child, are in no way resolved. However, this
promise of compliance does not even render moot appel
lants’ constitutional claim of a right to notice of reasons
and a hearing.
First, it has not yet been decided whether this circular
is binding on local housing authorities. This issue was
raised in Thorpe v. Housing Authority of the City of Dur
ham, supra, and the Supreme Court remanded this case
to the Supreme Court of North Carolina to resolve the
question of whether, and to what extent, local housing
authorities are bound by this circular.
Second, even if the circular were binding on the Housing
Authority, the type of hearing to be afforded a public
11
housing tenant has likewise not yet been resolved. Is the
tenant entitled to a full evidentiary-type hearing with all
of the safeguards offered by a court of law? May the
tenant bring an attorney or other representative with her?
Or, is a simple conference between the housing manager
and tenant sufficient ? Appellants submit the type of hear
ing to be afforded public housing tenants may well vary
with the factual circumstances involved. However, in the
instant case appellants should at least have been given a
notice containing a statement of the specific charges and
grounds of eviction (which they were not) which, if proven,
would entitle the Housing Authority to evict the tenants
and an opportunity to contest the truth of the allegations
and/or question the propriety of eviction for these rea
sons by affidavits or testimony. See Dixon v. Alabama
State Board of Education, 294 F.2d 150 (5th Cir. 1961).
Third, just as the Housing Authority’s sudden recision
of appellants’ notices to terminate and vacate only after
suit was brought is rather suspect—Cypress v. Newport
News General and Nonsectarian Hospital Ass’n, supra—
its assertion of intended future compliance with the HUD
circular must be weighed and considered in light of its
timing.
Fourth, in their complaint appellants have sought an
injunction and declaratory judgment for their own benefit
and for the benefit of other persons similarly situated and
are thus entitled to a hearing on these claims. They should
not be denied this hearing by promises of the appellee
to comply with a HUD circular but should be given an
opportunity to prove they are in need of an injunction
and declaratory judgment protecting their rights and those
of members of the class they represent. United States
v. W. T. Grant Co., supra.
12
For these reasons, appellants submit that the Housing
Authority’s assertion of intended future compliance with
the February 7, 1967 circular issued by the Department of
Housing and Urban Development does not make this action
moot.
CONCLUSION
For all the foregoing reasons, appellants submit that
the order of the trial court dismissing this action for
mootness should be reversed.
Respectfully submitted,
P eter A. H all
Orzell B il l in g sl e y , J r .
1630 Fourth Avenue, North
Birmingham, Alabama
J ack G reenberg
C h a rles H. J o nes , J r .
Ch a rles S t e p h e n R alston
G abrielle A. K ir k
10 Columbus Circle
New York, New York 10019
Attorneys for Appellants
13
Certificate of Service
This is to certify that the undersigned, one of appellants’
attorneys, on this date,..... ...................... , 1967, has served
two copies each of the foregoing Brief for Appellants on
Byron D. Boyett, Esq., Dixon, Wooten and Boyett, and
Reid Barnes, Esq., c/o Byron D. Boyett, Esq., P.O. Drawer
646, Talladega, Alabama 35160, by mailing same to said
address by United States air mail, postage prepaid.
Attorney for Appellants
ME1LEN PRESS INC. — N, Y. C .< ^ ® »2 1 9