Brief of Amicus Curiae Washington Legal Foundation

    ® i 
JOHNSON & GIBBS 

A Professional Corporation 

ATTORNEYS AND COUNSELORS 

  

Fax: 214/977-9004 100 Founders Square Other Locations: 

Telex: 55 1172 900 Jackson Street Austin, Texas 

Dallas, Texas 75202-4499 Houston, Texas 

Writer's Direct Dial Number 214/977-9000 Washington, D.C. 

214-977-9518 

February 20, 1990 

VIA R 

Gilbert Ganucheau 
Clerk, 5th Circuit Court of Appeals 
600 Camp Street, Room 102 
New Orleans, Louisiana 70130 

Re: No. 90-8014 
State of Texas, et al v. 

League of United Latin American Citizens (LULAC), et al 

Dear Mr. Ganucheau: 

I have enclosed for filing herewith an original and six 

copies of the Brief of Amicus Curiae Washington Legal Foundation 

in the above referenced matter. 

Copies of the enclosed brief will be mailed to the 

appropriate counsel of record in accordance with the Federal 

Rules of Appellate Procedure. 

Thank you for your assistance. If you should require any 

additional information, please do not hesitate to contact me at 

the above number. 

Si rely, 

Lil, 

PS/mll 

Enclosures 

cC: Counsel of Record 

 



  

   

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

No. 90-8014 

  

STATE OF TEXAS, et al. 

Appellants, 

Vv. 

LEAGUE OF UNITED LATIN AMERICAN 
CITIZENS (LULAC), et al. 

Appellees. 

  

Appeal from the United States District Court 
for the Western District of Texas 

Midland-Odessa Division 

  

BRIEF OF AMICUS CURIAE 
WASHINGTON LEGAL FOUNDATION 

  

DANIEL M. OGDEN DANIEL J. POPEO 

900 Chateau Plaza 
2515 McKinney Avenue 
Dallas, Texas 75201 
(214) 871-2922 

PAUL STROHL 
100 Founders Square 
900 Jackson Street 

Dallas, Texas 

(214) 977-9518 

February 20, 1990 

PAUL D. KAMENAR 
ALAN M. SLOBODIN 
WASHINGTON LEGAL 
FOUNDATION 
1705 N. Street, N.W. 

Washington, D.C. 20036 
(202) 857-0240 

COUNSEL FOR AMICUS 

 



    
IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

No. 90-8014 

  

STATE OF TEXAS, et al. 

Appellants, 

Vv. 

LEAGUE OF UNITED LATIN AMERICAN 
CITIZENS (LULAC), et al. 

Appellees. 

  

Appeal from the United States District Court 
for the Western District of Texas 

Midland-Odessa Division 

  

BRIEF OF AMICUS CURIAE 
WASHINGTON LEGAL FOUNDATION 

  

DANIEL M. OGDEN 
900 Chateau Plaza 
2515 McKinney Avenue 
Dallas, Texas 75201 
(214) 871-2922 

PAUL STROHL 
100 Founders Square 
900 Jackson Street 

Dallas, Texas 

(214) 977-9518 

February 20, 1990 

DANIEL J. POPEO 
PAUL D. KAMENAR 
ALAN M. SLOBODIN 
WASHINGTON LEGAL 
FOUNDATION 
1705 N. Street, N.W. 
Washington, D.C. 20036 
(202) 857-0240 

COUNSEL FOR AMICUS 

 



    
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STATEMENT OF INTEREST OF AMICUS CURIAE 

Amicus Washington Legal Foundation ("WLF") is a national 

nonprofit public interest law and policy center with more than 

120,000 members and supporters nationwide, including many in Texas. 

WLF concentrates its litigation efforts on cases of nationwide 

significance affecting our nation’s heritage of ordered liberty 

under the Constitution. WLF has been particularly active in cases 

which pose misguided and overbroad applications of federal civil 

rights laws, including judicial applications of the Voting Rights 

Act. Besides filing amicus briefs in such civil rights cases as 

Memphis Firefighters v. Stotts, 467 U.S. 561, 104 S.Ct. 2576, 81 

L.Ed.2d 483 (1984), and General Building Contractors Association, 

Inc. v. Pennsylvania, 458 U.S. 375, 102 S8.Ct. 3141 (19382), VWLF has 

also appeared as amicus and filed a brief in a case which is 

central to the issues presently before this Court, Thornburg v. 

Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed. 25 (1986). 

Appellant Judge Entz was a defendant-intervenor in the case 

below. As amicus, WLF supports Judge Entz because it agrees with 

certain of his views, expressed in the district court litigation, 

regarding judicial application of the Voting Rights Act. Amicus 

also strongly believes that the federal judiciary must not 

gratuitously interfere in matters pertaining to state law. 

Specifically, amicus will show that the District Court erred in 

holding that Texas’ system of electing district judges violates the 

Voting Rights Act. Furthermore, amicus also believes and will show 

that the District Court had no power to remedy a putative violation 

<i 

 



    
of the Voting Rights Act by creating an entirely new system for 

judicial selection in Texas. Amicus seeks to develop these 

positions more fully for the court’s benefit instead of burdening 

a voluminous record with a mere repetition of arguments already 

ably presented by Judge Entz. 

Amicus is in a unique position to aid the Court in considering 

the issues which this case presents. The interest of amicus is 

direct and substantial, and its participation will aid the Court 

in understanding the present issues and will bring significant 

perspectives to bear on them. 

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e
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TABLE OF CONTENTS 

STATEMENT OF INTEREST OF AMICUS CURIAE . . . . . 

PARLE OF CONTENTS oly 5 vy in lfain v vow a 

PABIE OF AUTHORITIES. tv oc ov vit «Bie ua 0 4 us 

SUMMARY OF ‘THE ARGUMENT . . wv «ir + siioivie vi a 

ARCUMENT 8 viv iv « os" aje oto o on .% a 

A. THE DISTRICT COURT MISAPPLIED THE VOTING 
RIGHTS ACT ‘viv .¢ + iin ».% a + ifs 3s. ss 

1. Overview of the Voting Rights Act . . . . 

2. The District Court Erred in Failing 
to Consider the Causes of Differences 
in Voting Behavior Between the White 
Majority and Protected Minorities . . . . 

a. The District Court Ignored the Plain 
Language of Section 2 of the Voting 
RIGhtS ACL. + + «co os «ite. vin is 

b. The District Court Ignored the Gingles 
Majority on Whether the Causes of 
Differences in Voting Behavior 
May Be Considered . . . . . . «. . . . 

¢. The District Court Erred in Failing 
to Admit Evidence of Differences 
in Voting Behavior Which Might Have 
Affected the Overall Vote Dilution 
Inguiryi cs ov sce sv sine eae 

d. The District Court Ignored Established 
Fifth Circuit Precedent When Ruling 
That Factors Which Might Account For 
Differences in Voting Behavior Were 
Inadmissible +... + + cvs aie eo a 

-1ii~ 

10 

 



    
B. THE DISTRICT COURT’S REMEDY FOR THE ALLEGED 

VIOLATION OF THE VOTING RIGHTS ACT LACKS 

ANY FOUNDATION IN LAW . « « « +» & 

1. The District Court Abused Its Discretion 

2. The Abstention Doctrine Required the 
District Court to Refrain from Acting 
Until the Legislature Had Had an Opportunity 
to Reform Texas’ Judicial Selection Process 

CONCLUSION - . "eo tails is: 0. a "se vin o a 8's wits w. a 

CERTIFICATE OF SERVICE . . 

-iv- 

11 

11 

14 

17 

19 

 



    
TABLE OF AUTHORITIES 
  

CASES 

Anderson v. Dunn, 6 Wheat 204 (1821) v.¢ o sve oo o. 12 

Burford v. Railroad Comm’n, 319 U.S. 315 (1943) . a is « ® 14-15 

Campos v. City of Baytown, Tex., 840 F.2d 1240 
(8th Cir. 1988), cert. denied, 109 S.Ct. 3213 (1989) . . 10 

Cavanaugh v. Looney, 248 U.S. 453 (1919). + + « ws « « » 14 

Chisom v. Roemer, 353 F.2d 1186 (5th Cir. 1988) . « . ..12,14,16,17 

Citizens for a Better Gretna v. City of Gretna, L.A., 
834 F.2d 496. (5th Cir. 1987), cert. denied, 109 S.Ct. 

3213. (1989) vw . che ei or, ear oF 10 

City of Mobile v. Bolden, 446 U.S. 55 (1980) . . . . . . 4-6 

General Building Contractors Association, Inc. Vv. 
Pennsylvania, 458 U.S. 375 (1982) . « « wis wisiia’s #0 % i 

Hecht Co. v. Bowles, 321 U.S. 321 (1944) Swim wed eo He 11 

Holmberg Vv. Armbrecht, 327 U.S. 392 (1946). + +s + 's 4 » 11 

Lemon v. "Kurt, 411 U.S. 192 (1973). « «is ois a'a o sis 's 11 

Memphis Firefighters v. Stotts, 467 U.S. 561 (1984) . . . i 

Railroad Comm’n v. Pullman, 312 U.S. 496 (1941) . « «4 14-15 

Spallone v. United States, 58 U.S. L.W. 4103 
(Jan: (10, 1000) t,o BT i WE Te JH ee 12 

Thornburg v. Gingles, 478 U.S. 30 (1986) . + « » . 31,2,4,7-1),17 

United Latin American Cities v. Midland Independent 
School District, 812 F.2d 1494 (5th Cir. 1987), vacated . 10 

United Serv. Life Ins. Co. v. Delaney, 328 F.2d 483 
(SER CIPLINO0RaY FE, dh i ei Tt wie wide Tei 16 

Youngsr v. Harris, 401. 0.8. 37 (1971) + + + vines ln 4 15 

Westwego Citizens for Better Govern. v. Westwego, 

872 P.20 1201 (5th Cir. 1989) . i. oi ole ais v iv" vivin 10 

-- 

 



    

| 

Whitcomb v. Chavis, "403 U.S. 124 (1971) 

white v. Regester, 412 U.S. 755 (1973) 

STATUTES 

42 U.8.C. § 1973(D): «icv vo fy 

MISCELLANEOUS 

S. Rep. No. 97-417, 97th Cong. 2d Sess. 16, 27, 
193-195 (1082) '« wife vi sil visas Fie Ciertelile a 

1982 U.8. Code Cong. & Ad. News 177, 205, 363-365 

Wright, Law of Federal Courts, (4th ed. 1983) 

Be 

8,14 

 



    
No. 90-8014 

  

IN THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

THE STATE OF TEXAS, et al. 

Appellants, 

V. 

LEAGUE OF UNITED LATIN AMERICAN 
CITIZENS (LULAC), et al. 

Appellees. 

  

BRIEF OF AMICUS CURIAE 

WASHINGTON LEGAL FOUNDATION 

In accordance with Rule 29 of the Federal Rules of Appellate 

Procedure, and Local Rule 29 of this Circuit, amicus curiae 

Washington Legal Foundation ("WLF") offers the following brief. 

SUMMARY OF THE ARGUMENT 

The District Court, in its Memorandum Opinion and Order dated 

November 8, 1989 ("Opinion"), holds that mere differences in voting 

behavior between the white majority and protected minorities are 

sufficient to establish a violation of the Voting Rights Act, 

without regard to whether those differences result from racial 

polarization, or from factors completely unrelated to race which 

are perfectly legitimate in the give-and-take of electoral politics 

in a representative democracy. The District Court moreover remedies 

this alleged violation in its Order dated January 2, 1990 ("Order") 

 



by effectively drafting a new election code for Texas, unencumbered 

by the views of the elected representatives of its people. 

Amicus curiae WLF believes that the Opinion and the Order 

represent assertions of judicial imperialism which are breathtaking 

in their audacity. On the basis of little more than an 

unarticulated sense of justice, the District Court has restructured 

the Texas judiciary in the teeth of the people’s will, as expressed 

in the Texas Constitution. Neither the Voting Rights Act, the 

United States Constitution, nor any other law provides a basis for 

such an act. 

The Voting Rights Act requires that violations be shown based 

on the totality of circumstances. Presumably, these circumstances 

would include all factors affecting voting behavior in a complex, 

multi-racial society with hundreds if not thousands of distinct 

interest groups. The District Court ignored both the plain language 

of the statute, the Supreme Court’s interpretation of the statute 

in Thornburg v. :Gingles, 478 U.S. 30 (1986), and this Court’s 

previous interpretations of the statute by excluding evidence of 

the causes which may have explained differences in voting behavior 

between the white majority and protected minorities. These causes, 

rather than racial discrimination, may have prevented members of 

protected groups from achieving the electoral success which may 

have been expected. 

By its own admission, the District Court also engaged in 

legislation by drafting a new election law for the 1990 Texas 

judicial elections. Such an exercise far exceeds the constitutional 

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i 

1 

powers of the federal judiciary, which has neither the information, 

the resources, nor the accountability to the public necessary to 

legitimate legislation in a representative democracy. Moreover, in 

America, it is the people, speaking through their elected 

representatives, who frame the laws by which they are governed, 

subject only to the supreme law, the Constitution. 

Accordingly, the Opinion and Order should be reversed, and 

the 1990 Texas judicial elections should take place as provided 

under the laws of Texas. 

ARGUMENT 

A. THE DISTRICT COURT MISAPPLIED THE VOTING RIGHTS ACT 

The District Court, in its haste to rid Texas of a system of 

partisan election of judges, misapplied the Voting Rights Act by 

ignoring the plain language of the statute as well as this court’s 

numerous interpretations of the proper application of the Act. 

The District Court apparently views partisan judicial 

elections with extreme disfavor, stating that "[A]s long as judges, 

however, are selected on a partisan ballot, there will be some 

rancor and enmity between the successful and the unsuccessful 

candidate ... [T]his Court felt the animosity between certain 

judges in the courtroom. There is no need for this. Certainly 

judicial reform will not make all candidates live by the golden 

rule, but it is a step in the right direction." Opinion at 4-5. 

The District Court did not stop with these ruminations on the 

wisdom and propriety of partisan judicial elections; it then 

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proceeded to second-guess the democratically elected 

representatives of the people of Texas. While blandly asserting 

that "it is not (the) Court’s intention to tell the legislature how 

its job is to be accomplished,” the District Court then did 

precisely what it said it would not do in stating "would it not 

make sense to have judges elected when members of school boards or 

city councils are elected?" Opinion at 5-6. 

Amicus points out these statements of the District Court as 

an example of the outrageous judicial imperialism in which the 

District Court has engaged. Significantly, the above statements of 

the District Court are contained in the initial portion of the 

Opinion. They appear well before the District Court’s consideration 

of the merits in this case. It would appear that the District Court 

first concluded that partisan judicial elections are unwise and 

then justified that decision by misapplying -- undoubtedly in good 

faith, but mistakenly nonetheless -- the Voting Rights Act, the 

Supreme Court’s decision in Gingles, and this Court’s 

interpretations and applications of the Act. 

1. overview of the Voting Rights Act. In City of Mobile v. 

Bolden, 446 U.S. 55: (1980), the Supreme Court held that 

discriminatory purpose must be shown in voting dilution claims 

brought under the Fourteenth Amendment, the Fifteenth Amendment, 

and the Voting Rights Act. In 1982, Congress overturned the Supreme 

Court’s holding in Bolden regarding voting right dilution claims 

 



    
brought under the Voting Rights Act by amending Section 2(b) of the 

Act. The amendment is reproduced in full below: 

A violation of subsection (a) of this section 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 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 amy 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) (emphasis in original). In amending the 

statute, Congress reversed the Bolden discriminatory purpose test 

and returned the law governing voting rights dilution claims to the 

discriminatory results test of White v. Regester, 412 U.S. 755 

(1973). See S. Rep. No. 97-417, 97th Cong. 24 Sess. 16, 27, 193- 

195 (1982), 1982 U.S. Code Cong. & Ad. News 177, 205, 363-365. 

The plain language of the amendment shows it to be a product 

of compromise, as Congress sought to reduce the burden of proof on 

vote dilution claimants without unnecessarily interfering with the 

give-and-take of bargaining among diverse interest groups which 

typifies representative democracy. In essence, Congress concluded 

that a violation of the Voting Rights Act would occur if the 

process of electing representatives denied protected groups the 

opportunity to elect candidates of their choosing. 

 



    1 

In this manner, both supporters and opponents of the Bolden 

doctrine satisfactorily resolved their differences. Opponents of 

Bolden could argue that the amendment reduced the burden of proof 

on Voting Rights Act claimants because it permitted them to show 

discrimination under an objective "totality of the circumstances" 

test, rather than the subjective discriminatory intent test of 

Bolden. Supporters of Bolden, on the other hand, could argue that 

the amendment did not require proportional representation of 

protected groups. See S. Rep. No. 97-417, 97th Cong. 2d Sess. 16, 

27, 193-195 (1982), 1982 U.S. Code Cong. & Ad. News 177, 205, 363- 

365. 

The 1982 Amendment codified the views of virtually all 

Americans that equality means equality of opportunity rather than 

equality of results. The results test Congress restored to the 

statute does not require equality of results. Rather, the clear 

intent of Congress in amending the statute was that if, based on 

the "totality of the circumstances," a state’s electoral process 

gives members of a protected group the opportunity to elect 

candidates of their choosing, nothing more is required under the 

Voting Rights Act. 

2. The District Court Erred in Failing to Consider the Causes 

of Differences in Voting Behavior Between the White Majority and 

Protected Minorities. 

a. The District Court Ignored the Plain Language of Section 

2 of the Voting Rights Act. Section 2 of the Voting Rights Act 

-—6= 

 



| 

requires a showing as to the "totality of the circumstances" in 

establishing the existence of a voting rights dilution claim. The 

District Court’s refusal to admit evidence offered by Judge Entz 

and other Appellants as the causes of differences in voting 

behavior clashes with the plain language of the statute because it 

is impossible to exclude such causes in any inquiry into the 

"totality of the circumstances" relative to a voting rights 

dilution claim. 

As demonstrated above, the key question in analyzing a Section 

2 claim is whether racial discrimination, taken together in 

conjunction with state electoral processes, caused the inability 

of protected groups to elect candidates of their own choosing. The 

District Court failed to make such an analysis and thereby erred 

in failing to consider whether the causes of differences in voting 

behavior constituted part of the "totality of the circumstances." 

b. The District Court Ignored the Gingles Majority on Whether 

the Causes of Differences in Voting Behavior May be Considered. 

The Section 2 Amendment to the Voting Rights Act was first 

considered by the Supreme Court in Gingles, supra. Amicus will not 

burden the Court by discussing the Gingles vote dilution test at 

length. However, Gingles is significant to the arguments made by 

amicus herein because the District Court relied upon a holding of 

the plurality opinion which received only the support of only four 

Justices. Justice Brennan, writing for the plurality, stated that 

"[I]t is the difference between the choices made by blacks and 

whites--not the reasons for that difference" that is significant 

-] -  



    
as to the opportunity of protected minorities to elect their 

preferred representatives; why blacks and white vote differently 

is, in his view, "irrelevan[t] to a Section 2 inquiry." Rather, 

Justice Brennan declared, "only the correlation between race of 

voter and selection of certain candidates, not the causes of the 

correlation, matters." Gingles, 63. 

Justice Brennan’s view that differences in voting behavior are 

irrelevant was sharply criticized by a majority of the Court. Of 

key importance is the trenchant observation of Justice White, who 

concurred in the rest of Justice Brennan’s opinion but expressly 

dissented on this point. In Justice White’s view, Justice Brennan's 

test of voting dilution would result in a rule promoting "interest 

group politics rather than a rule hedging against racial 

discrimination." Justice White then added that he doubted "that 

this was what Congress had in mind in amending Section 2 as it 

did." Gingles, 83. 

Justice O’Connor, in an opinion concurring in the judgment 

and joined by Chief Justice Burger and Justices Powell and 

Rehnquist, also sharply dissented from Justice Brennan on this 

point. After reviewing the legislative history of the 1982 

amendment and the holding of Whitcomb v. Chavis, 403 U.S. 124 

(1971), she concluded that Congress deemed it "probative" as to 

the "reasons why white voters rejected minority candidates." She 

then added: 

[T]he overall vote dilution inquiry neither requires 

nor permits an arbitrary rule against consideration of 

all evidence concerning voter preferences other than 

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statistical evidence of racial voting patterns. Such a 
rule would give no effect whatsoever to the Senate 
report’s repeated emphasis on ‘intensive racial 
politics,’ on ‘racial political considerations,’ and on 
whether ‘racial politics ... dominate the electoral 
process’ as one aspect of the ‘racial bloc voting’ that 
Congress deemed relevant to showing a Section 2 
violation.” 

Gingles, 100-101. While it mentioned the views of the Gingles 

majority, the District Court nevertheless ignored them in making 

its decision. Taken together with the above quoted statements made 

by the District Court as to partisan politics, the District Court’s 

refusal to follow the Gingles majority on this issue has resulted 

in the very thing that Justice White feared: the advancement of 

interest group politics rather than the prevention of racial 

discrimination. 

c. The District Court Erred in Failing to Admit Evidence of 

Differences 1n Voting Behavior Which Might Have Affected the 

Overall Vote Dilution Inquiry. In another comment significant to 

the present case, Justice O’Connor also addressed the plurality 

holding that evidence of divergent racial voting patterns cannot 

be rebutted by evidence showing that causes other than race account 

for such voting patterns. While Justice O’Connor agreed that 

evidence explaining divergent racial voting patterns by causes 

other than race cannot be admitted specifically to rebut 

statistical evidence of racial voting patterns, she did not "agree, 

however, that such evidence can never affect the overall vote 

dilution inquiry." Gingles, 100. 

 



    
The District Court goes squarely against the majority of the 

Supreme Court in Gingles by ruling that factors such as "party 

affiliation, straight party ticket voting and campaign factors do 

not constitute legally competent evidence." Opinion at 89. Even 

if such evidence is not legally competent solely to rebut any 

statistical data tending to show racially divergent voting 

patterns, it should be admissible to determine whether there has 

been any dilution of voting rights in the present case based upon 

the "totality of the circumstances," as Congress had intended. 

d. The District Court Ignored Established Fifth Circuit 

Precedent When Ruling That Factors Which Might Account For 

Differences in Voting Behavior Were Inadmissible. This Court has 

repeatedly agreed with the views of Justices White and O’Connor in 

Gingles discussed above regarding the proper application of the 

Voting Rights Act. Citizens for a Better Gretna v. City of Gretna, 

L.A., 834 P.2d 496 (5th Cir. 1987), cert. denied, 109 8.Ct. 3213 

(1989), Campos v. City of Baytown, Tex., 840 F.2d 1240 (5th Cir. 

1988), cert. denied, 109 S.Ct. 3213 (1989), and Westwego Citizens 

for a Better Govern. v. Westwego, 872 F.2d 1201, 1208, n.7 (5th 

Cir. 1989). 

For example, Gretna, at 503, in referring to Justice White’s 

Gingles opinion and Judge Higginbotham’s dissent in United Latin 

American Cities v. Midland Independent School District, 812 F.2d 

1494, 1504 (5th Cir. 1987), vacated, states that "[S]uch forecasts 

properly raise concerns about the dangers of advancing interest 

group politics or enforcing proportional representation." By 

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refusing to admit and consider evidence of such factors as party 

affiliation and straight party ticket voting, the District Court 

has refused to follow this Court’s interpretations of Gingles, as 

expressed above, that factors which may explain differences in 

voting behavior do matter, and instead substituted its own reading 

of the Voting Rights Act and Gingles. 

B. THE DISTRICT COURT'S REMEDY FOR THE ALLEGED VIOLATION 
OF THE VOTING RIGHTS ACT LACKS ANY FOUNDATION IN LAW 

Even if one conceded, for the sake of argument, that Texas’ 

method of electing its judges violated the Voting Rights Act, the 

district court lacks the power to adopt the remedy chosen in the 

Order. By rewriting the Texas Election Code to suit its peculiar 

notions of what judicial elections should be, the District Court 

not merely abused its discretion, but acted in a manner wholly 

inconsistent with the proper role of the judiciary under the 

Constitution. In any event, the doctrine of abstention requires 

the District Court ‘to refrain from acting until the Texas 

Legislature has been given the opportunity to remedy the putative 

legal infirmities described in the Opinion. 

1. The District Court Abused Its Discretion. In reviewing the 

remedy adopted below, this Court must determine whether the 

District Court abused its discretion. E.g., Lemon v. Kurtz, 411 

U.S. 192, 200-01 (1973): Holmberg v. Armbrecht, 327 U.S. 392 

(1946); Hecht Co. v. Bowles, 321 U.S. 321 (1944). The Order appears 

to rest on both factual findings and conclusions of law. This Court 

-1]1- 

 



must set aside the District Court’s conclusions of law if they are 

erroneous and its findings of fact if they are clearly erroneous. 

Chiszom Vv. Rosmer, 853 PF.24 1186, 1190 (5th Cir. 1988). By any 

standard, the District Court has abused its discretion. 

Although ‘the federal courts have great power in remedying 

violations of the law, that power is not absolute. As the Supreme 

Court has observed, the "remedial powers of an equity court must 

be adequate to the task...[but] they are not unlimited." Anderson 

v. Dunn, 6 Wheat. 204, 231 (1821), quoted in Spallone v. United 

States, 58 U.S. L.W.: 42103, 4108 (Jan. 10, 1990) (holding that 

district court abused its discretion by fining city council members 

for refusing to support legislation implementing City of Yonkers 

consent decree). 

Here, there can be no doubt that the District Court abused 

its discretion. Without a word from the elected representatives of 

the people of Texas, the Court: 

. abolished the judicial districts established under Texas 

law; 

created new judicial districts and drew their boundaries; 

banned the use of party labels in judicial elections; 

adopted specific dates and procedures for candidate 

filings; and 

. mandated the judges’ terms of office. 

order at 5-7. This is not merely judicial legislation; this is rule 

by philosopher-king, except that in this instance, the king was 

inspired not by philosophy but by the lyrics of Hank Williams, Jr. 

-12-  



    
One may safely say that the Framers did not have this sort of thing 

in mind when they drafted Article III of the Constitution. 

The District Court justified this exercise in raw judicial 

power on the grounds that the Texas Legislature failed to respond 

to the Opinion during the November-December 1989 special session. 

Inasmuch as the Opinion was handed down on November 8, after the 

session and its purposes had been announced, the Legislature’s 

failure to respond can scarcely be regarded as evidence of bad 

faith or contempt for the law. Moreover, so long as the District 

Court’s decision on vie merits remained subject to appellate 

review, the Legislature, already faced with a host of other 

pressing issues, had compelling reasons to refrain from acting 

until that review had been completed. 

Reform of whatever kind, and particularly judicial reform, 

should be a deliberate process directed to an achievable goal, not 

a mad sprint to the millennium. Time must be taken to consult the 

diverse political interests that exist in Texas, to adjust their 

differences through reasoned negotiation, and to consider all the 

foreseeable consequences of so great a change in the administration 

of justice in Texas. Any attempt to short-circuit this process, 

which lies at the heart of representative democracy, can only 

result in disaster. Indeed, the Order itself sadly testifies to 

this sober truth. 

It will not do, moreover, to argue, as the District Court did, 

that the remedy had been adopted on an interim basis to avoid 

disruption of the 1990 elections. Order at 3-4. The unlawful 

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exercise of judicial power cannot be tolerated on even an interim 

basis. There is ample precedent for allowing elections to proceed 

before a remedy has been fashioned, notwithstanding statutory or 

even constitutional infirmities, if adoption of the remedy would 

disrupt the democratic process. Whitcomb, supra (granting stay 

pending appeal which permitted elections to be conducted 

notwithstanding district court finding of unconstitutionality): 

chisom, supra. Rather than engage in ill-advised lawmaking of its 

own, the District Court should have allowed the lawmakers elected 

by the people of Texas to respond to the issues raised by the 

Opinion. 

2. The Abstention Doctrine Required the District Court to 

Refrain from Acting Until the Texas Legislature Had Had an 

Opportunity to Reform Texas’ Judicial Selection Process. The 

doctrine of abstention permits the federal courts, in the exercise 

of their equitable discretion, to refrain from deciding unsettled 

issues of state law out of "scrupulous regard for the rightful 

independence of state governments" and a due concern for the smooth 

functioning of the federal judiciary. Cavanaugh v. Looney, 248 

U.S. 453, 457 (1919). Accord, Railroad Comm’n v. Pullman, 312 U.S. 

496 (1941); Burford v. Railroad Comm’n, 319 U.S. 315 (1943). In 

the words of Justice Frankfurter, speaking for a unanimous court 

in Pullman, the doctrine of abstention is "an adjustment that will 

avoid the waste of a tentative decision as well as the friction of 

a premature adjudication.” 312 U.S. at 500. 

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Commentators have found several distinct justifications for 

abstention, including (1) Pullman-type abstention, used to avoid 

deciding federal constitutional questions where the case may be 

disposed of on questions of state law, (2) Burford-type abstention, 

used to avoid needless conflict with the administration by a state 

of its own affairs, and (3) Younger-type abstention, used to permit 

the several states to resolve unsettled questions of state law 

without interference from the federal judiciary. See generally 

Wright, Law of Federal Courts (4th ed. 1983) 302-311, 320-330. 

As their names imply, the Supreme Court’s decisions in Pullman 

and Burford are the paradigm examples of justifications (1) and 

(2), respectively. In Pullman, the Supreme Court declined to decide 

a case in which plaintiff-intervenors sought to enjoin an order of 

the Texas Railroad Commission on the alternative grounds that the 

order infringed their rights under the Fourteenth Amendment and was 

unauthorized under Texas law. In Burford, the Supreme Court refused 

to become entangled in a dispute over complex Texas oil proration 

orders. Younger Vv. Harris, - 401 :U.S. 37 “(1971), arose from a 

criminal prosecution under California’s Criminal Syndications Act, 

where the Supreme Court refused to enjoin a criminal prosecution, 

even if the applicable statute was unconstitutional, because of 

long-standing public policy against federal court interference in 

the making and the enforcement of state law. In each of these 

cases, the Supreme Court reasoned that the federal court 

intervention in state affairs conld not be justified, 

notwithstanding the powerful countervailing interests at stake. 

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The Fifth Circuit has long recognized the doctrine of 

abstention. United Serv. Life Ins. Co. v. Delaney, 328 F.2d 483 

(5th Cir. 1964). Indeed, the spirit of the abstention doctrine 

animates this court’s decision in Chisom, supra. There, the 

plaintiffs alleged a violation of Section 2 of the Voting Rights 

Act and obtained a preliminary injunction enjoining the election 

of a Louisiana Supreme Court justice. Judge Peltz, speaking for 

this Court, vacated the injunction and pointedly observed: 

It is now established beyond challenge that upon finding 
a particular standard, practice, or procedure to be 
contrary to either a federal constitutional or statutory 
requirement, the federal court must grant the appropriate 
state or local authorities an opportunity to correct the 
deficiencies. 

853 F.2d at 1192. The relevance of Judge Peltz’ words to this 

lawsuit is obvious. There is every reason to believe that, if the 

current system of selecting Texas judges violates the Voting Rights 

Act, the Texas Legislature could fashion a new system of satisfying 

the requirements of the Voting Rights Act, if given the opportunity 

to do so. For reasons discussed earlier, it cannot be concluded 

that the Legislature’s failure to act results from bad faith, 

simply because it has not moved to change the law quickly enough 

to suit the District Court’s taste. If it is the view of the 

District Court that "‘[tlhe highway still ain’t paved,’" the 

solution of that problem should be left to the Texas Legislature 

and not the federal judiciary. 

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CONCLUSION 

The District Court erred in its finding that Texas’ system of 

judicial selection violates the Voting Rights Act. Specifically, 

the District Court disregarded the plain language of the statute 

by failing to take into account all factors explaining the apparent 

lack of electoral success enjoyed by members of protected groups. 

The District Court compounded its error by systematically ignoring 

the views of a majority of the Supreme Court in Gingles and the 

repeated holdings of this Court by concluding that mere differences 

in voting behavior between the white majority and protected 

minorities, and nothing more, were sufficient to establish a 

violation of the Voting Rights Act. As a result of its errors, the 

District Court trampled on the delicate balance between conflicting 

interests reflected in the 1982 amendments to the Voting Rights 

Act, reaching a result that, for the reasons discussed by Justice 

O’Connor in Gingles, virtually mandates proportional representation 

of protected groups in the Texas judiciary, contrary to the express 

intent of Congress. 

Even if Texas’ judicial selection system violates the Voting 

Rights Act, as the District Court concludes, it abused its 

discretion by unilaterally devising a new judicial selection system 

for Texas without consulting its elected officials or giving them 

a meaningful opportunity to correct the putative legal infirmities 

which the District Court pointed out in the Opinion. 

Near the end of his opinion in Chisom, Judge Peltz, in 

refusing to interfere with Louisiana’s judicial elections, asks, 

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"[I]s the electorate to have no say whatever....? Can: that 

conceivably be considered in the best interests of the citizenry?" 

853 F.2d at 1192. This Court answered both those questions with a 

resounding "No" in that case. It should give the same answer in 

this case. To rule otherwise would merely reinforce the cynicism 

of the growing number of voters who stay away from the polls on 

election day, convinced that their votes and their tax dollars are 

wasted on legislators whose decisions can be overturned in an 

instant on the whim of a single federal judge. 

For the foregoing reasons, amicus Washington Legal Foundation 

requests that this Court reverse the Opinion and the Order of the 

District Court and render judgment in Judge Entz’s favor. 

Respectfully submitted, 

DANIEL M. OGDEN. 
A 900 Chatsan prise 

2515 McKinrfey Avenue 
Dallas, Texas 75201 
(214) 3871-2922 

[L( der 
PAUL STROHL 
100 Founders Square 
900 Jackson Street 

Dallas, Texas 75202 
(214) 977-9518 

  

  

  

  

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DANIEL J. POPEO 

PAUL D. KAMENAR 

ALAN M. SLOBODIN 

WASHINGTON LEGAL FOUNDATION 

1705 N. Street, N.W. 

Washington, D.C. 20036 
{202) 857-0240 

COUNSEL FOR AMICUS 

CERTIFICATE OF SERVICE 

I certify that a true and correct copy of the foregoing 

instrument was served by certified mail, return receipt requested 

on Robert H. Mow, Jr., William L. Garret, Susan Finkelstein, 

Sherrilyn A. Ifill, Gabrielle K. McDonald, Edward B. Cloutman, III, 

Mark H. Dettman, E. Brice Cunningham, Renea Hicks, Ken Oden, David 

R. Richards, Evelyn V. Keyes, Joel H. Pullen, Donald R. Philbin, 

Jr., Andy Taylor, Gerald Goldstein, and Michael Ramesy on this 20th 

day of February, 1990 in accordance with the Federal Rules of 

Paul Strohl, Counsel for Amicus 

Appellate Procedure. 

  

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