Brief of Plaintiffs-Appellees

    GARRETT. THOMPSON, & CHANG 

ATTORNEYS AND COUNSELORS AT Liaw 

  

8300 DouGLAS AVENUE 

Suite 800 

PRESTON CENTER 

Darras. Texas 75225 

Fax: (214) 987-0429 

WILLIAM L. GARRETT. P.C. 
214-369-1962 

BRENDA HULL THOMPSON, P.C. 
214-363-1022 

SUE J. CHANG. P.C. 
214-987-9887 

February 26, 1990 

Mr. Gilbert F. Ganucheau 

United States Court of Appeals 

for the Fifth Circuit 

600 Camp St. 

New Orleans, LA 70130 

Re: No. 90-8014 

LULAC, et al., Plaintiffs/Appellees 
vs. 
JIM MATTOX, et al., Defendants-Appellants 

  

Dear Mr. Ganucheau: 

Enclosed please find seven copies of Plaintiffs- Appellees’ 

LULAC, et al. Brief of Plaintiffs-Appellees for filing in the above 

referenced case. 

By copy of this letter, all counsel of record are being 

furnished a copy hereof. 

If you have any questions, please advise. 

  

WLG. 1k 

Encl. 

cc: Attorneys of Record 

 



IN THE UNITED STATES 
COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

  

NO. 90-8014 

  

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, ET AL. 

Plaintiffs-Appellees 

VS. 

JIM MATTOX, ET AL. 

Defendants-Appellants 

  

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

MIDILAND-ODESSA DIVISION 

  

  

BRIEF OF PLAINTIFFS-APPELLEES 

  

ROLANDO L. RIOS WILLIAM L. GARRETT SUSAN FINKELSTEIN 
ATTORNEY AT LAW ATTORNEY AT LAW ATTORNEY AT LAW 
201 N. St. Mary's 8300 Douglas Ave. 201 N. St. Mary's 
Suite 521 Suite 800 Suite 600 
San Antonio, TX Dallas, TX San Antonio, TX 
78205 75225 78205 
512/ 222-2102 214/ 369-1952 512/ 222-2478 

ATTORNEYS FOR PLAINTIFFS-APPELLEES 

 



  

CERTIFICATE OF INTERESTED PARTIES 

NO. 90-8014 

LULAC, et al. vs. JIM MATTOX, et al. 

LOCAL RULE 28.2.1 CERTIFICATE 

The undersigned, counsel of record for LULAC, et al., 
certifies that the following listed parties have an interest in the 
outcome of this case. These representations are made to enable 
Judges of the court to evaluate possible disqualification or 
recusal. 

Plaintiffs: 

LULAC Local Council 4434 
LULAC Local Council 4451 
LULAC (Statewide) 
Christina Moréno 
Agquilla Watson 
Joan Ervin 
Matthew W. Plummer, Sr. 
Jim Conley 
Volma Overton 

Willard Pen Conat 
Gene Collins 
Al Price 
Theodore M. Hogrobrooks 
Ernest M. Deckard 

Judge Mary Ellen Hicks 
Rev. James Thomas 

Plaintiff-Intervenors: 

Houston Lawyers' Association 
Alice Bonner 
Weldon Berry 
Francis Williams 
Rev. William Lawson 
DeLoyd T. Parker 
Bennie McGinty 
Jesse Oliver 
Fred Tinsley 
Joan Winn White 

 



Defendants: 

Jim Mattox, Attorney General of Texas 
George Bayoud, Secretary of State 
Texas Judicial Districts Board 

Thomas R. Phillips, Chief Justice, Texas Supreme Court 
Mike McCormick, Presiding Judge, Court of Criminal 
Appeals 
Ron Chapman, Presiding Judge, 1st Admin. Judicial Region 
Thomas J. Stovall, Jr., Presiding Judge, 2nd Admin. 
Judicial Region 
James F. Clawson, 
Judicial Region 
John Cornyn, Presiding Judge, 4th Admin. Judicial Region 
Robert Blackmon, Presiding Judge, 5th Admin. Judicial 
Region 
Sam B. 

Region 
Weldon Kirk, Presiding Judge, 7th Admin. Judicial Region 
Jeff Walker, Presiding Judge, 8th Admin. Judicial Region 
Ray D. Anderson, Presiding Judge, 9th Admin. Judicial 
Region 
Joe Spurlock II, President, Texas Judicial Council, 
Leonard E. Davis 

Jr., Presiding Judge, 3rd Admin. 

Paxson, Presiding Judge, 6th Admin. Judicial 

Defendant-Intervenors: 

Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 

Amicus: 

Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 

Sharolyn Wood 
Harold Entz 

Tom Rickoff 
Susan D. Reed 

John J. Specia, Jr. 
Sid L. Harle 
Sharon Macrae 

Michael D. Pedan 

Larry Gist 
Leonard P. Giblin, Jr. 
Robert P. Walker 
Jack R. King 
James M. Farris 
Gary Sanderson 
Mike Bradford 
Patricia R. Lykos 
Donald K. Shipley 
Jay W. Burnett 
Bob Burdette 
Richard W. Millard 

: 5 3  



  

Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 
Judge 

Plaintiffs! 

Wyatt W. Heard 
Michael T. McSpadden 
Ted Poe 
Joe Kegans 
Scott Brister 
Henry G. Schuble III 
Charles Dean Huckabee 
Woody R. Denson 
Norman R. Lee 

Doug Shaver 
Charles J. Hearn 
David West 
Tony Lindsay 
Louis M. Moore 
Dan Downey 
Bob Robertson 
John D. Montgomery 
Allen J. Daggett 
Robert S. Webb III 
Robert L. Lowry 
Robert B. Baum 
Eric D. Andell 

Attorneys: 

GARRETT, THOMPSON & CHANG 

William L. Garrett 
Brenda Hull Thompson 

Rolando L. Rios 

TEXAS 
Susan 

RURAL LEGAL AID, 

Finkelstein 
INC. 

Plaintiff-Intervenors' Attorneys: 

MULLENAX, WELLS, BAAB & CLOUTMAN 

Edward B. Cloutman III 

E. Brice Cunningham 

NAACP LEGAL DEFENSE & EDUCATION FUND, 

Julius L. Chambers 

Sherrilyn A. Ifill 

INC. 

MATTHEWS & BRANSCOMB 

Gabrielle K. McDonald 

ii 

 



Defendants' Attorneys: 

  

ATTORNEY GENERAL OF TEXAS 

Jim Mattox 
Mary F. Keller 
Renea Hicks 
Javier Guajardo 

Defendant-Intervenors' Attorneys: 

HUGHES & LUCE 
Robert H. Mow, Jr. 
David C. Godbey 
Bobby M. Rubarts 
Esther R. Rosenbaum 

PORTER & CLEMENTS 
J. Eugene Clements 
Evelyn V. Keyes 

Darrell Smith 

Michael J. Wood 

Independent Counsel for George Bayoud, Secretary of State 

LIDELL, SAPP. ZIVLEY, HILL & LaBOON 
John L. Hill, Jr. 
Andy Taylor 

Independent Counsel for Ron Chapman, Thomas J. Stovall, Jr., 

B. B. Schraub, John Cornyn III, Darrell Hester, Sam M. Paxson, 

Weldon Kirk, Jeff Walker: 

GRAVES, DOUGHERTY, HEARON & MOODY 
R. James George, Jr. 
John M. Harmon 
Margaret H. Taylor 

Amici' Attorneys: 

OPPENHEIMER, ROSENBERG, KELLEHER & WHEATLEY, INC. 

Seagal V. Wheatley 
Donald R. Philbin, Jr. 

Michael E. Tigar 

Gerald H. Goldstein 

iv 

 



. 

  

Joel H. Pullen 

Tom Maness 

/ 
/ 

/ 

( Sgr 7 he od 
de LLL 
William L. Garrett 
  

Attorney of Record for 
LULAC, et al. 

Plaintiffs-Appellees 

 



  

STATEMENT REGARDING ORAL ARGUMENT 

Counsel for Plaintiffs-Appellees represents that oral 
argument in the above case would be helpful to the Court because 
of the factual and legal questions involved. Counsel believes that 
the Court may have many questions regarding the case that can only 
be answered in oral argument. 

vi 

 



TABLE OF CONTENTS 

ITEM 

Certificate of Interested Parties. . 

Statement Regarding Oral Argument. . 

Table of Contents. . . . . 

List of Authorities. . a Ne Aw 

Standards of Review and Notes on Organization of 

Statement of Jurisdiction. . . 

Statement of the Issues. . 

Statement Of the Case. . . « « «+ « ¢ «¢ « + 

Course of Proceedings and Disposition 
in the Trial Court 

Statement of the Facts . 

Summary of the Argument. 

Argument ie viele else . . ‘oe 

Section I. Section 2 of the Voting Rights Act 
Covers Judicial Elections, and Was 
Correctly Applied by the Trial Judge. 

Section II. Proof of Partisan Voting Patterns Does 
Not Override Proof of Polarized 
Voting in a Section 2 Case LR og Wi 

Section III. Trial Court Findings of Fact Not 
: Clearly Erroneous, and all Threshold 

Thornburg v. Gingles Factor Proved . . 17 

Section IV. Ordering Non Partisan Judicial Elections 
Beyond Scope of Remedial Powers. . . . 28 

Section V. Voting Rights Act is Constitutional . 28 

Section VI. Denial of Intervention by Bexar County 
District Judges Was Proper . . . . . . 29 

Conclusion . . i. ev . or, ila . . 33 

Certificate of Service . els ie . . : . einnd  



  

TABLE OF AUTHORITIES 

CASES 

Board of Regents v. Roth, 408 U.S. 564 (1972) oe lie 31 

Butts v. City of New York, 779 F. 2d 141 (2d Cir. 1985) 
cert. denied, 478 -U. SS. 1021: (1986) vv « + v 4 sa +s 2» « 9,10 

Campos v. City of Baytown, 840 F. 2d 1240 (5th Cir. 1988) . . 12 

Chisom v. Edwards, 839 F. 2d 1056 (5th Cir. 1988) cert. 
denied sub nom. Roemer v. Chisom, 
109 8S. CL. 300 (1988) 4's 0 df on ilnin 'n nim nn own ty 8, 8, 13 

Citizens for a Better Gretna v. City of Gretna, 
834 F..:28 496 (BLth Cir. 1987) . eo + ov ete iinins v Fp un 5 on te 12 

City of Mobile v. Bolden, 446 U. S. 55, 
100 S."CEt. 1490, 64 1... BQ. 24 47 (1980) v2 vn + io "sv. vein +o 18 

Clark v. Edwards, 725 F. Supp 285 (M. D. La. 1988) «twist uly id 

David v. garrison, 553 F.. 24 923 (Bth Cir. 1977) + ¢ viv in wo 29 

Davis v. Bandemer, 478 U. S. 109, 106 S. Ct. 2797 (1986) ¢ 14-16 

Dillard v. Baldwin County Bd. of Educ., 
686 F. Supp. 1459 (M. D. Ala, 1988) + "¢« + ¢ + ¢ ss 4. iv. sn 21 

East Jefferson Coalition v. Jefferson Parish, 
691 F.Supp. S01 (E. D. 1a. 1988) . oo fe ors Sve af oa ian. 13 

Gaffney v. Cummings, 412 U. S. 735, 
93 S.:CL.22323,-37 L. BA. 24 298 (1973) + ov vie vinw win won. SE 

Graves v. Barnes, 343 F. Supp 704 (WD Tex. 1972) . . «. « « « 25 

Haith v. Martin, 618 F. Supp. 410 (E. D. N. C. 1985) (3-judge 
court), aff'd, 477 U. S. 901, 106 S. Ct. 3268, 
81-1, Ed. 2@IB900 0088S. , i La i Ry hh 8 

Hodgson v. United Mine Workers, 473 F.2d 118 (5th Cir. 1972) 30 

Houston v. Haley, 859 F. 2d 341 (5th Cir. 1988), 
vacated on other grounds, 869 F. 2d 807 (5th Cir. 1989) . . . 24 

Jones v. City of Lubbock, 727 F. 2d 364 
(Sth Clr. 1084) ceteris  B. cFeis aie oo oh a os 25, 26, 28 

Kirksey v. Allain, 635 F. Supp 347 (S. D. Miss. 1986) . . . . . 8 

viii 

 



  

Kirksey v. Board of Supervisors of Hinds Co., Miss., 
BBs F. 00 130 (Sth Cir. 1977) '« cle ois vis + 5's 5 vivo wina29 

League of United Latin American Citizens v. Clements, 
B84 P.24 185 (5th Cir. 1989 A, 50 Jab, J. WT W30, 31 

LULAC v. Midland I. 8. D., 648 F. Supp. 596 (W. D. Tex. 1986), 
812 F. 2d 1494 (5th Cir. 1987), vacated 818 F. 2d. 350 (5th Cir. 
1987), affrd. ‘en banc., 829 F. 24 546 (5th Cir. 1987) ... . 23 

Mallory v. Pyrich, 839 PF, 24 275 (6th Cir. 1988) . .i%. + 7, 9 

Martin v. Allain, 658 F. Supp. 1183 (S. D. Miss. 1987) iii wines 

Monroe v. City of Woodville, 881 F. 2d 1327 
(BL Cir. 3080) or. Eg aie anaes aN ee 32,0 

Montesano v. Seafirst Commercial Corp., 818 F. 2d 423, 425-6 
(5th Cir. 1987) LJ LJ LJ LJ LJ ® LJ LJ LJ LJ * LJ LJ LJ LJ » Ld LJ LJ ® * » LJ ® 7 

Nevett v. Sides, 571 F. 24 209 (5th Cir. 1978) "« os oa oo is 29 

overton v. City of Austin, 871 F. 24 529 (5th Cir. 1989) . . 24 

Sanchez v. Bond, 875 F. 2d 1488, 1494 (10th Cir. 1989) vite Swi AS 

Smith v. Clinton, 687 F. Supp. ‘1310, 1316-17 
(E. D. Ark. 1988), summarily aff'd., 109 Ss. Ct. 1310 (1989) . 12 

South Carolina v. Katzenbach, 383 U. S. 301, 
86°58, Ct. 803, 812, 15 L. EQ. 24 769 (1969) ... . . + » 8,10, 11 

Southern Christian Leadership Conference v. Siegelman, 
714 F. Supp. 511 (M.D. Ala. Ne. D, 1989. y + wiivi os 0 wv +.B 

Stallworth v. Monsanto Co., 558 F.2d 257 (5th Cir. 1977) . . 30 

Tarrant County v. Ashmore, 635 S.W.2d 417 (Tex. 1982) . . . . 32 

Thornburg v. Gingles, 478 U. S. 30 (1986) wie.» wie ee passim, 

Voter Information Project v. City of Baton Rouge, 
612 °F. 2d: 208 (Sth Cir. A980) . . is ‘sii oie via win a aw vei D 

Wards Cove Packing Co. v. Atonio, 109 S. Ct. 2115 (1989) . . 18 

Wells v. Edwards, 347 F. Supp. 453 (M. D. La. 1972), aff'd. 
409 U. S...1005, 4385 S. Ct. 904 (1973) '¢ ev vino ini 0 in oie «313 

Westwego Citizens for a Better Government v. City of 
Westwego, 872 F. 24 1201 (Bth Cir. 1989) + + + sv + a oa +713 

ix 

 



Whitcomb v. Chavis, 403 U. S. 124, 

91 8S. Ct. 1858, 29 L. Ed. 24 963 (1971) . + 

White v. Regester, 412 U. S. 755, 

93 8. Ck. 2332, 37. 1L. BEd. 24 314: (1973), 

Williams v. State Board of Elections, 

696 'F, Supp. 1563 (N. D.. T11. 1988) . « vie os so 

Zimmer v. McKeithen, 485 F. 2d 1297 (5th Cir. 1973) 

STATUTES AND REGULATIONS 

15th Amendment to the U. S. Constitution 

Voting Rights Act, 42 U. S. C. 1973 

Senate Report, 

1982 U. 8. Code Cong. & Admin. News 177 . . . . . . 

OTHER REFERENCES 

Engstrom, "The Reincarnation of the Intent Standard: 
Federal Judges and At-Large Election Cases, 

28 Howard Law Journal 495 (1985) . Dee eels ge ee 

Karlan, "Maps and Misreadings: The Role of Geographic 

Compactness in Racial Vote Dilution, 24 Harvard Civil Rights 

Civil Liberties Law Review 173, 177-179, 199-213 (1989) . . 

 



  

STANDARDS OF REVIEW 

This circuit in Jones v. City of Lubbock, 727 F. 2d 364, 371 

(5th Cir. 1984) determined that a trial court's findings under the 

Voting Rights Act, 42 U. 8S. C, 1973, are judged under the 

"clearly erroneous" rule. "Only if on a review of the record, we 

derive the clear impression that a mistake has been made, may we 

second guess the district judge." Jones, id. 

The trial court's finding of vote dilution in district judge 

elections is reviewable under the clearly erroneous standard. 

If the district court had used an improper legal standard in 

evaluating the at-large electoral system for district judges in 

Texas, then such use is an error of law. Blum v. Stetson, 465 U. 

5. 886, 104 Ss. Ct. 1541, 79 L.. Ed. 24 891 (1984). Errors of law 

are reviewable free of the clearly erroneous rule. 

Pullman-Standard v. Swint, 456 11. 8S. 273, 289 En. 19,.102 ss. Ct. 

1781, 72 L.. Ed. 24 66 (1582). 

NOTES ON ORGANIZATION OF BRIEF 

Plaintiffs-Appellees Brief follows the organization of the 

argument presented in the State Officials' Brief in Sections I 

through IV, and incorporates within each section references to 

arguments found in the briefs of other Appellants. 

Section V replies to arguments of Appellants Entz and Wood 

that the Voting Rights Act is unconstitutional. 

Section VI replies to the brief of the Bexar County district 

judges whose application to intervene was denied. 

Xi 

 



  

STATEMENT OF JURISDICTION 

The Trial Court had jurisdiction of this case pursuant to 28 

U.. 8, C. 1343(3) and (4), upon causes of action arising under 42 

U. S. C. 1971, 1973, 1983, 1988, and the XIV and XV Amendments to 

the United States Constitution. Relief was sought under 28 U. S. 

C. 2201, 2202, and Rule 57, F. R. C. P. 

This Court has jurisdiction to hear this appeal by virtue of 

28 U. S. C. 1292(b), in that the decision appealed has been 

certified as an appealable interlocutory order of the United States 

District Court for the Western District of Texas; and by virtue of 

28 U. S. C. 1292(a)(l1) in that the decision of January 2 and 

January 11, 1990, issued on injunction. 

 



  

STATEMENT OF THE ISSUES 

ISSUE 

i. Whether Section 2 of the Voting Rights Act covers 
election of state district judges, and if so, did the 
trial court correctly apply the law 

2. Whether proof of partisan voting patterns overrides 
proof of polarized voting in a Section 2 case 

3. Whether the district court's findings of fact are 
clearly erroneous, and whether the Thornburg v. Gingles 
threshold test was met in all targeted counties 

4. Whether the adoption of interim remedy which included 
non-partisan judicial elections was beyond the court's 
remedial power 

5. Whether the Voting Rights Act is constitutional 

kb} 

6. Whether the denial of intervention of-the Bexar County 
district judges was proper 

PAGE 

13 

17 

28 

28 

29 

 



  

STATEMENT OF THE CASE 

(i). Course of Proceedings and Disposition Below 

Pursuant to Rule 28, Federal Rules of Appellate Procedure, 

Appellees do not disagree with the State Officials' statement of 

the course of proceedings and disposition below as stated in their 

brief at pages 2-5. 

(ii). Statement of the Facts 

Appellees agree with the State Officials description of the 

current election system and the district judge's role as stated in 

their brief (subsection A) at pages 5-6, except that district 

judges do act as a collegial body pursuant to Texas Government 

Code, Sec. 75.011, which authorizes them to elect a presiding judge 

and to adopt "local rules" of practice. | 

Minority voters in 9 metropolitan counties challenged the at- 

large election system for district judges. In Dallas, Harris, 

Tarrant, and Jefferson Counties, the challenge was on behalf of 

black voters; in Bexar, Travis Counties, on behalf of Hispanic 

voters; and in Lubbock, Midland and Ector Counties, on behalf of a 

conbined minority group. ( Rec. Exc. pp. 14-21). 

In each of these counties, plaintiffs established the three 

threshold Thornburg Vv. Gingles, 106 S. Ct. 2752 (1986) factors: 

1. Size & compactness of the minority group: (Rec. Exc. 

pp. 14-21). This factor is admitted by the State Officials for all 

counties except Travis. State Officials' Brief at 14. 

2. Political cohesiveness of the minority group: (Rec. 

 



Exc. pp. 21-69). This factor is also admitted by the State 

Officials for all counties except Midland, Ector and Lubbock 

Counties. State Officials' brief at 14. 

3. The existence of a white bloc which usually defeats 

the minority's preferred candidate: (Rec. Exc. pp. 21-69) 

In addition, they proved the existence of the other "typical 

factors" as outlined in the Senate Report, No 97-417, 97th Cong. 2d 

Sess. 1982 U. 8S. Code Cong. & Admin. News 177. Those factors 

proved were a history of discrimination (Rec. Exc. pp. 69-71), 

enhancing factors (Rec. Exc. pp. 71-72), racial appeals in Dallas 

County (Rec. Exc. p. 72-73), lack of minority electoral success 

(Rec. Exc. pp. 73-75). Plaintiffs did not prove slating (Rec. Exc. 

p. 72) or tenuousness (Rec. Exc. p. 75-77), and did not challenge 

the responsiveness of elected officials to particularized minority 

needs. (Rec. Exc. p. 75). 

The plaintiffs established that under a "totality of the 

circumstances" that blacks and Hispanics have less opportunity to 

participate in the political processes and to elect candidates of 

their choice. (Rec. Exc. pp. 88-91) 

 



SUMMARY OF THE ARGUMENT 

Section 2 of the Voting Rights Act, 42. U. S. C. 1973, has 

been determined by this Circuit to cover judicial elections. No 

exception has been carved for trial judges as opposed to appellate 

judges who usually perform their judicial functions as a collegial 

panel. Nor are judges exempted because they are not included in 

the generic term "representatives" as used in the Voting Rights 

Act. 

Texas trial judges do not hold single-member district offices 

so as to insulate the electoral system from a Voting Rights Act 

challenge. The proper inquiry is how many offices are there within 

a specified geographic area, not whether the office holder acts 

singly or together. 

In establishing the threshold factors required by Thornburg v. 

Gingles, 106 S. Ct. 2752 (1986), the trial court correctly applied 

the Supreme Court's standard for determining the existence of 

polarized voting. The question is whether minorities and whites 

vote differently. In all targeted counties, they do. 

Coverage by the Voting Rights act does not invoke the one-man, 

one-vote rule. 

Even though district judges run under a party label, partisan 

voting patterns cannot be posited as a reason for lack of success 

of minority candidates. Inquiries into the reason for electoral 

success is not proper under the "results" standard of the amended 

Voting Rights Act. Arguments that minorities vote in the 

Democratic column and whites vote in the Republican column do not 

5  



invoke the "interest group politics" reasoning of Whitcomb v. 

Chavis, 403 U. S. 37 (1971). The proper inquiry is regarding the 

preferred candidate of minority voters, not the party label. 

The trial court's 136 page opinion is not amenable to a 

"clearly erroneous" attack since the court properly considered all 

relevant evidence under proper legal standards in each of the 

targeted counties. 

The district court overstepped its remedial authority in 

fashioning an interim election plan that discarded the state's 

policy preference for partisan elections. Otherwise, its interim 

plan was narrowly drawn to correct the violations found. And it 

properly granted the Texas Legislature cBpOrtuhiLy to create a 

permanent solution. (A Special Session begins on February 27, 

1990, to deal with this issue). 

The Voting Rights Act is constitutional, both as a proper 

exercise of Congressional authority, and as applied to judicial 

elections. 

The Bexar County district judges were properly denied 

intervenor status because they have no interest in the case, and 

their application after a final decision on the merits was 

untimely. 

 



  

ARGUMENT 

x. 

SECTION 2 OF THE VOTING RIGHTS ACT COVERS JUDICIAL 

ELECTIONS, AND WAS CORRECTLY APPLIED BY THE TRIAL JUDGE 

A. Section 2 Covers Elected Trial Judges 

Although Appellees believe that this issue has been 

affirmatively decided by this Court in Chisom v. Edwards, 839 F. 2d 

1056 (5th.Cir. 1988) cert. denied sub nom. Roemer v. Chisom, 109 S. 

Ct. 390 (1988), and that such decision is binding on any other 

panel of this Circuit, Montesano v. Seafirst Commercial Corp., 818 

F. 2d 423, 425-6 (5th Cir. 1987), Appellees will reply to the 

Appellants' arguments which attempt to evade these well settled 

precedents. 

The Collegial Panel Argument. The State Defendants have 

argued that Chisom is applicable only in those situations in which 

the judges sit in collegial panels.' State Brief, at 17-18. Other 

Appellants make the same argument: Entz's Brief, at 16; Wood's 

Brief, at 22; Presiding Judges' Brief at 8, 11; Bayoud's Brief at 

9. 

No other court that has considered the question has so limited 

the reach of Section 2. Mallory v. Eyrich, 839 F. 2d 275 (6th Cir. 

1988): Cincinnati municipal judges and Hamilton County judges; 

Chisom, supra: Louisiana Supreme Court; Clark v. Edwards, 725 F. 

  

K 
Texas district judges engage in some activities 

collegially. For example, under Texas Government Code, Sec. 75.011, 
they meet to elect a presiding judge by majority vote, and to adopt 
"Local Rules" of practice. 

 



  

Supp 285 (M. D. La. 1988): district judges; Williams v. State 

Board of Elections, 696 F. Supp. 1563 (N. D. Ill. 1988): Supreme 

Court, Appellate Court, and 177 Circuit Court judges; Martin v. 

Allain, 658 F. Supp. 1183 (S. D. Miss. 1987): Supreme Court, 

Chancery Court, Circuit Court, County Court; Southern Christian 

Leadership Conference v. Siegelman, 714 F. Supp. 511 (M. D. Ala. N. 

D. 1989): Circuit and Judicial Court judges. 

Section 5 of the Voting Rights Act, likewise, reaches judicial 

elections. Kirksey v. Allain, 635 F. Supp 347 (S. D. Miss. 

1986) (3-judge court): Chancery and Circuit judges; Haith v. 

Martin, 618 F. Supp. 410 (E. D. N. C. 1985) (3-judge court), aff'd, 

477 U. 8S. 901, 106 S. Ct. 3268, 91 L. EA. 24 599 (1986): Superior 

Court judges. Chisom v. Edwards, 839 F. 2d at 1063-1064. 

The Attorney General of the United States agrees that the 

volain Aganing of [the language in section 2] reaches all 

elections, including judicial elections" and that the pre-existing 

coverage of section 2 was not limited by the 1982 congressional 

amendments. Quoted in Chisom v. Edwards, 839 F. 2d at 1064. 

Appellants' argument is misdirected. The intent of the Voting 

Rights Act is to outlaw racial impediments to effective voting in 

all elections, not, as Appellants would argue, to outlaw such 

impediments depending upon what office is being voted upon. As the 

Supreme Court has stated, its broad remedial purpose is "to rid the 

country of racial discrimination in voting." South Carolina v. 

Katzenbach, 383 U, Ss. 301, 315, 86 S. Ct. 803, 812, 15 1. Ed4. 24 

769 (1969). It is, after all, the Voting Rights Act, not the 

 



Voting Rights In Certain Elections Act. 

In addition, as early as 1980, this Court held that a 

constitutional challenge based on racial discrimination may be 

alleged against the election scheme of city and state judges in 

Baton Rouge. Voter Information Project v. City of Baton Rouge, 612 

FP. 24.208 {5th Cir. 1980), 

The Judges are not Representatives Argument. Another argument 

launched by Appellants is that judges are not "representatives" as 

contemplated by the amended Section 2 of the Voting Rights Act. 

State's Brief at 15; Entz's Brief at 16-18; Wood's Brief at 22-23; 

Bayoud's Brief at 20-22. This argument has also been settled by 

this Court in Chisom v. Edwards 839 F. 2d at 1063 (5th Cir. 1988). 

Accord, Mallory v. Eyrich, 839 F. 2d 275 (6th Cir. 1988). Those 

decisions reiterate what this Court had decided eight years 

earlier. Voter Information Project v. City of Baton Rouge, 612 F. 

2d at 212 (5th Cir. 1980): 

It may well be true that Judges are elected to 
serve the people, not to represent them. But 
this fact makes plaintiffs' claims of racial 
discrimination no less important and no less 
deserving of constitutional protection. 

B. No "Single-member District" Exception for County Wide, 
Multi-judge Districts 

Contrary to the district court's finding that trial judges in 

the targeted counties are elected at large, (Rec. Exc. p. 6), 

several appellants rely upon Butts v. City of New York, 779 F. 2d 

141 (2d Cir. 1985) cert. denied, 478 U. S. 1021 (1986) to buttress 

their argument that Texas trial judges are elected from single  



  

member districts, and are therefore immune to a Section 2 

challenge. State's Brief at 18-20; Entz's Brief at 18-19; Wood's 

Brief at 24. 

This argument has been extensively considered and rebutted by 

the trial court in Southern Christian Leadership Conference Vv. 

Siegelman, 714 F. Supp. 511, 518-520 (M. D. Ala, N. D. 1989). 

Without repeating what Judge Dubina wrote there, Appellees would 

note that the underpinning of the decision is capsulized in 

footnote 19: 

The true hallmark of a single-member office is 
that only one position is being filled for an 
entire geographic area, and the jurisdiction 
can therefore be divided no smaller. While 
mayors and sheriffs do indeed "hold single- 
person offices in Alabama," they do so because 
there is only one such position for the entire 
geographic areas in which they run for 
election. ... [W]hat is important is how many 
positions there are in the voting E 
jurisdiction. It is irrelevant, in 
ascertaining the potential existence of vote- 
dilution, that these officials happen to 
exercise the full authority of their offices 
alone. 

The rationale of the Butts exception is that a single member 

district cannot be shared, or stated otherwise, no remedy is 

possible.? Judge Dubina recognized that in these multi-judge 

districts "splitting the jurisdiction into two or more districts is 

not only possible, but can 'secure [to a minority class] a share of 

representation equal to that of other classes.' Butts, 779 F. 24 at 

  

2 ynited States v. Dallas County Commission, 850 F. 2d 1430, 
1432, fn. 1, is of no help to appellants. There the county wide 
election of the probate judge was not condemned by Section 2, but 
there was only one probate judge in Dallas County. Plaintiffs have 
not challenged any county exclusively served by only one court. 
  

- 

10 

 



148." Southern Christian Leadership Conference v. Siegelman, 714 

F. Supp. at 519, n. 24. 

C. Racially Polarized Voting Examined Under Correct Standard 

Appellant Entz has argued that the district court utilized an 

incorrect definition of racially polarized voting in its 

consideration of Dallas County elections. Entz's Brief at 26-32. 

‘Entz asserts that this circuit in Monroe v. City of Woodville, 881 

F. 2d 1327 (5th Cir. 1989) has defined racially polarized voting as 

"black voters prefer candidates of a particular race." Entz's 

Brief at 28. A more careful reading of Monroe reveals that the 

court there accepted the Thornburg v. Gingles, 106 S. Ct. at 2769- 

70, definition of polarized voting: "... a significant number of 

minorities usually vote for the same candidates...". The use of 

"black candidates" is merely shorthand for the usual situation, 

that black voters commonly prefer black candidates. Additionally, 

the Court's concern in Monroe was the requisite proof for political 

cohesion when there was more than one black candidate in the race. 

Monroe v. City of Woodville, 881 F. 2d at 1331, fn. 8, and 1335. 

The situation in Woodville is not analogous to Dallas County, 

Texas, because in each of the seven general elections analyzed by 

plaintiffs' expert Dr. Richard Engstrom, one black candidate 

opposed one white candidate. Plaintiffs' Exhibit D-02. 

Entz then argues that both Thornburg v. Gingles, 478 U. S. 30 

(1986) and the legislative history of the amended Section 2, Senate 

Report, 1982 U. 8. Code Cong. & Admin. News 177, require that for  



  

voting to be racially polarized the race of the voter and the race 

of the candidate must coincide. This is wrong. Underlying his 

entire discussion is the confusion of two separate issues in 

Section 2 cases: minority electoral success and polarized voting. 

A polarized voting analysis is done to answer two questions: is the 

minority group politically cohesive, and do whites vote 

sufficiently as a bloc to usually defeat the minority's preferred 

candidate. Thornburg v. Gingles, 106 S. Ct. at 2769. Minority 

electoral success, or the lack thereof, may indicate lack of access 

to the political system. Thornburg, at 2779-80. These two 

elements, while related, do not dictate that "blacks must vote for 

blacks" in order for a voting pattern to be characterized as 

racially polarized.3 

Finally, Entz's argument that this Circuit's decisions in 

Citizens for a Better Gretna v. City of Gretna, 834 F. 2d 496 (5th 

Cir. 1987) and Campos Vv. City of Baytown, 840 F. 2d 1240 (5th Cir. 

1988) require that a plaintiff must prove that "blacks vote for the 

black candidate" represents a severe misreading of the holding of 

those cases. In the context of a polarized voting analysis, cases 

state that black on white races are more relevant than white on 

white races. 8mith v. Clinton, 687 F. Supp. 1310, 1316-17 (E. D. 

Ark. 1988), summarily aff'd., 109 S. Ct. 1310 (1989). Or stated 

  

3 Additionally, these two same elements of a plaintiff's case 
have been identified as "the most important Senate Report factors 
bearing on section 2 challenges to multimember districts...," 
although they are not the same inquiry. The other Senate Report 
factors are "supportive of, but not essential to a minority voter's 
claim." Thornburg, at 2766, fn. 15. (emphasis in original). 

12 

 



differently, if black choices can be realized only when the 

candidates are white, then there is an inequality of access to the 

political processes. (TR 2-127 ~- 2-128) See also Westwego 

Citizens for a Better Government v. City of Westwego, 872 F. 2d 

1201, 1207-1209, and fn. 7 (5th Cir. 1989); and East Jefferson 

Coalition v. Jefferson Parish, 691 F. Supp. 991, 1001 (E. D. La. 

1988). 

D. One-Man, One-Vote. 

Appellant Wood argues for Harris County that if judges are 

"representatives" for purposes of the Voting Rights Act, then the 

one-man, one-vote rule should apply. Wood's Brief at 39-40. This 

circuit has dealt with that issue in agreement with Wells v. 

Edwards, 347 F. Supp. 453 (M. D. La. 1972), aff'd. 409 U. S. 1095, 

435.8. Ct. 904 (1973) that it does not apply to judicial elections. 

Chisom v. Edwards, 839 F. 2d 1056, 1061 (5th Cir. 1988). 

II. 

PROOF OF PARTISAN VOTING PATTERNS DOES NOT OVERRIDE PROOF 

OF POLARIZED VOTING IN A SECTION 2 CASE 

A. Partisan Voting Patterns are Not a Legitimate Part of 
a Functional View of the Political Process 

The State Officials and Defendant-Intervenor Wood argue that 

the Supreme Court has directed that "the factor of political party 

as the main descriptor of electoral results" be recognized, and is 

crucial to a functional view of the political process. State's 

Brief at 21-22; Wood's Brief at 24-39. (Wood's attack is more 

general but essentially claims that bi-variate regression analysis 

13  



  

is inappropriate, and that "other factors" such as party and 

endorsements should be controlling.) 

The opposite is true. Thornburg v. Gingles, 106 S. Ct. 2752, 

2773 (1986) specifically rejected factors other than correlation 

between race of the voter and the selection of certain candidates. 

Age, religion, income, education, incumbency, campaign 

expenditures, name identification, media use, and party affiliation 

are specifically rejected as factors to be studied. To utilize 

these factors would "thwart the goals Congress sought to achieve 

when it amended Sec. 2 and would prevent the courts from performing 
  

the 'functional' analysis of the political process." (emphasis 
  

added) . 

None of the Appellants has been able to cite a post Thornburg 

case that rejects bi-variate regression analysis as an acceptable 

method of studying the phenomenon of polarized voting. 

B. Whitcomb and the Voting Rights Act 

Appellants have suggested that the 1982 amendments to the 

Voting Rights Act incorporated the reasoning of Whitcomb v. Chavis, 

403.-U. 8S. 124, 91 S. Ct. 1858, 29 L. Ed. 24 963 (1971) that 

disparity of electoral outcome as a result of interest group 

politics does not give rise to a Section 2 violation. Further, 

they argue that Whitcomb was reaffirmed by the Court in Davis v. 

Bandemer, 478 U. S. 109, 106 S. Ct. 2797. State's Brief at 22-27. 

Entz's Brief at 31-32. 

Whitcomb was extensively cited in the legislative history to 

14 

 



  

the Voting Rights Act, reprinted in U. 8. Code Cong. & Admin. News, 

1982, p. 177ff. The State's Brief at p. 22 notes all the citations 

of Whitcomb. A review of those citations clearly indicates, 

contrary to the Appellants’ assertion, that references to Whitcomb 

were for the purpose of establishing that prior to the Supreme 

Court decision in City of Mobile v. Bolden, 446 U. S. 55, 100 S. 

Ct. 1490, 64 L. Ed. 2d 47 (1980) "intent" was not a relevant 

inquiry in vote dilution cases. Appellants' suggestion that the 

amendments to Section 2 require an anaiveis of partisan voting 

patterns is contradicted by Thornburg and by the legislative 

history. 

The purpose of the 1982 amendments was to eliminate the 

"intent" requirement as an element of proof of a Section 2 

violation. - To guide the eaurts in making ‘a .Section 2. 

determination, the Senate Report adopts a list of "typical 

factors," first set out by this Court in Zimmer v. McKeithen, 485 

F. 2d 1297 (5th Cir. 1973), which are to be considered in making a 

"totality of the circumstances" inquiry. Senate Report at 206-207. 

Nowhere in this list of factors, or in the legislative history as 

a whole, is party affiliation of the candidates or of the voters 

mentioned as a factor to be considered in a Section 2 case. Nor as 

suggested by Wood's Brief at 24-39 is such a standard incorporated 

into the "totality of circumstances" test by reference to Whitcomb 

in the legislative history of the amendments to Section 2. 

The discussion of Whitcomb in Davis v. Bandemer, 106 S. Ct. 

2797, (1986) relates to the proposition that more than lack of 

15 

 



proportional representation is required to make a constitutional 

challenge to a districting scheme, and that both White v. Regester, 

412 U. S. 755, 93 S. Ct. 2332, 37 L. Ed. 2d 314 (1973) and Whitcomb 

require a showing that the minority group has less access than 

whites to the political processes. Davis v. Bandemer, 106 S. Ct. 

at 2809, 2813. Davis, being a constitutional case, as was 

Whitcomb, does not establish that in Section 2 cases political 

party must be taken into account in an election analysis. 

Further, the State's reliance upon the discussion of Whitcomb 

in the concurring opinions in Thornburg v. Gingles, 106 S. Ct. at 

2784 & 2793, to support the alleged role of partisanship is 

misplaced. These discussions of Whitcomb are in the context of 

whether the race of the candidate or the race of the voter is most 

important in an election analysis. Most importantly, this issue is 

dicta. Thornburg, at 2784, 2793: 

Furthermore, on the facts of this case, there 
is no need to draw the voter/candidate 
distinction. The District Court did not and 
reached the correct result... 

-Justice White 

Similarly, I agree with Justice WHITE that the 
plurality's conclusion that the race of the 
candidate is always irrelevant in identifying 
racially polarized voting conflict with 
Whitcomb and is not necessary to the 
disposition of this case. 

-Justice O'Connor 

The actual holding of Thornburg v. Gingles is that party 

affiliation should not be considered. 

In an attempt to account for why voters vote the way they do 

and to account for lack of minority success by injecting party 

16  



  

affiliation into the discussion, the State is attempting to 

reintroduce the intent requirement into a plaintiff's burden. See 

Engstrom, "The Reincarnation of the Intent Standard: Federal Judges 

and At-Large Election Cases, 28 Howard Law Journal 495 (1985), 

cited in Thornburg v. Gingles, 109 S. Ct. at 2777. Their 

reevaluation of electoral success (County by County Analysis Using 

Whitcomb's Framework: State' Brief at 29-34) is concerned with 

accounting for electoral outcome, a separate "typical factor," not 

the differences in voting behavior of the dominant white majority 

and the overwhelmed minority. 

111. 

THE DISTRICT COURT'S FINDINGS OF FACT REGARDING A SECTION 

2 VIOLATION WERE NOT CLEARLY ERRONEOUS, AND THE THORNBURG 

V. GINGLES THRESHOLD TEST WAS MET IN ALL TARGETED 

COUNTIES 

A. Background Law 

In order to prove an election case under Section 2 of the 

Voting Rights Act, a plaintiff must establish the three Gingles 

factors, Thornburg v. Gingles, 106 S. Ct. at 2766-67, and prove 

that under the "totality of the circumstances" plaintiffs have less 

opportunity than whites to participate in the political processes 

and elect candidates of their choice. Monroe v. City of Woodville, 

881 F. 2@:1327, 1330 (5th Cir. 1929). 

B. The Court Evaluated the Dilution Claims in Light of 
All Relevant Evidence 

The State's Brief at 34 has suggested four areas in which the 

17 

 



Wood suggests that Justice O'Connor in Thornburg, 106 S. Ct. 

at 2790 supports this position. Actually, in the context of 

refuting the proposition that lack of proportional representation 

proves a Section 2 case, Justice O'Connor has stated the test 

correctly: 

There is a severe diminution in the prospects 
for black electoral success in each of the 
challenged districts, as compared to single- 
member districts in which blacks could 
constitute a majority. 

In a racially polarized context, one would expect, absent a 

dilutionary device, that black electoral success would roughly 

parallel black voting strength. 

Finally, as admitted by Defendant Entz's expert at trial, the 

pool of minority lawyers has nothing to do with electoral success 

in any contest. (Tr. 4-162 - 4-163). In a one on one, black on 

white, contest for district judge, it makes no difference how many 

white or black eligible lawyers are in the community. 

3. Candidate Qualifications. The State's Brief refers to one 
  

race for judge in Travis County in which there was testimony from 

defense witnesses that the reason he lost was because he was a "bad 

Judge." (Rec. Exc. p. 53). The trial court correctly held that 

the qualifications of a candidate are not relevant to voting 

patterns. Thornburg v. Gingles, 106 S. Ct. at 2773. 

  

S. citizen and having attained the age of 18. Texas Election Code, 
Sec. 11.002. Additionally, for example, Major v. Treen, 574 F. 
Supp. 325 (E. D. La. 1973) used total population in its comparison 
of minority success rate despite the qualifications to run for the 
U. S. House of Representatives: U. S. citizen for 7 years, 25 years 
of age, and a resident of the state at time of election. U. 8. 
Constitution, Art. 1, Sec. 2, Clause 2. 

1°  



4. Impact of Anglo cross-over voting. The State's Brief at 34 
  

suggests that the trial court ignored the impact of white cross- 

over voting, without citing any specific instances. The question 

of white cross-over voting is properly analyzed in terms of whether 

there exists a white voting bloc of sufficient size to over come 

black bloc voting plus any white cross-over votes. Thornburg v. 

Gingles, 106 S. Ct. at 2770. A review of plaintiffs' polarization 

data attached as Appendix A (Rec. Exc. pp. 95-114) to the court's 

opinion will reveal that rarely did white cross-over voting rise to 

a level sufficient to affecting the outcome of elections. 

C. Travis County 

  

1. Geographic compactness. The State argues that 

plaintiffs were unable to meet the geographic compactness test of 

Thornburg.® Plaintiffs demonstrated that it is possible to draw 

a district that contains a majority of voting age Hispanics. 

(Plaintiffs' Exhibit TR-18) They further offered unrebutted 

testimony that even considering citizenship the district would 

still be 53% eligible, voting age Hispanic. (TR 1-230 - 1-233). 

The State's Brief also alleges that plaintiffs failed to meet 

the "compactness" test, because their exhibit (Plaintiffs' Exhibit 

TR-04) revealed that the district was "dangling from the east and 

west ends of the upper segment of the district." State's Brief at 

35. The best recent explanation of the "compactness" standard is 

  

¢ The Sixth Circuit has recently held that a plaintiff may 
make a Section 2 "influence" case even if the minority group could 
not be a majority in a single member district. Armour v. State of 
ohio, F. 2d , [1990 Westlaw 8710] (6th Cir. Feb. 7, 1990) 

20  



  

found in Karlan, "Maps and Misreadings: The Role of Geographic 

Compactness in Racial Vote Dilution, 24 Harvard Civil Rights Civil 

Liberties Law Review 173, 177-179, 199-213 (1989), and in Dillard 

v. Baldwin County Bd. of Educ., 686 F. Supp. 1459 (M. D. Ala. 

1988). See also Gaffney v. Cummings, 412 U. S. 735, 752, fn. 18, 

93.8. ‘Ct, "2321, 2331, fn. 18, 37 L. Ed. 24 298 (1873). ‘These 

sources agree that Thornburg v. Gingles, 106 S. Ct. 2752 (1986), 

does not require a district to meet some standard of aesthetics 

such as symmetry or attractiveness. "Compactness" is a relative 

term tied to certain practical objectives of opening up the 

political processes to minorities. As Dillard states at 1466: 

...the requirement is not that a district must 
be compact, but that it be sufficiently 
compact under Sec. 2. ... The degree of 
geographical symmetry or attractiveness is 
therefore a desirable consideration for 
districting, but only to the extent it aids or 
facilitates the political process, and only as 
one among many consideration a court should 
include, the principal one being Sec. 2's vote 
dilution prohibition, in determining whether 
there is sufficient compactness for a majority 
black district. 

2. Racial polarization analysis. The State's Brief at 
  

36-37 complains that plaintiffs failed to do sufficient 

polarization analysis in Travis County. However, as the Court 

found, the analyses were sufficient, and the races analyzed by 

Defendant's expert Taebel revealed the same results: whites and 

Hispanics voted differently and the Hispanic choice lost. (Rec. 

Exc. pp. 54 & 125-127). Thornburg v. Gingles, 109 S. Ct. 2752, 

2782-83, Appendix A, (1986) accepted a dilution finding based upon 

three elections, the same number as analyzed in Travis County. 

21 

 



Finally, the trial court's findings are not clearly erroneous. 

D. Jefferson County 

The State's Brief at 37-38 complains that plaintiffs analyzed 

only two judicial races in the 1980's. They fail to note that 

plaintiffs analyzed 5 primary elections, 2 run-off elections, and 

the 1988 Democratic presidential primary. (Rec. Exc. pp. 54-55) 

As the Court correctly found, the majority of these races reveal 

that blacks and whites voted differently, and that the black 

supported candidate lost. (Rec. Exc. pp. 54-59). Further, the 

State's expert analyzed no judicial races. The district court's 

findings of fact are not clearly erroneous. 

E. Lubbock and Midland Counties 

The State has argued that Blacks and Hispanics are not, 

together as one minority group, politically cohesive, in both of 

these counties as the trial court found. (Rec. Exc. p. 61 & 68) In 

Lubbock County, they point to a Justice of the Peace race, and a 

state legislative race, in which a black opposed an Hispanic. 

State's Brief at 38-39. The trial court considered these races, 

and found that they were not representative of county-wide voting 

since these justice of the peace precincts do not cover a whole 

county as does a district court election district. Further, the 

trial court found that in 6 races analyzed by plaintiffs' expert 

the combined minority group and whites voted differently each time, 

and that the minority choice only won two times. (Rec. Exc. pp. 

59-64) The findings of the district court are not clearly 

22  



  

erroneous. 

In Midland County, the State's Brief at 39-40 argues that in 

certain city council and school board races, blacks and Hispanic 

candidates opposed each other, and therefore there is a lack of 

cohesiveness between the two groups. The testimony alluded to is 

anecdotal, and no conclusion regarding voting patterns can be made. 

(TR 1-107 - 1-108). Their other example is a Court of Appeals race 

in which blacks and Hispanics split their votes. However, the 

district court found that the pattern of voting in Midland is 

racially polarized, and that the choice of the minority group is 

usually defeated by the white voting bloc. (Rec. Exc. pp. 67-69) 

Additionally, the same court had previously made the same 

determination. LULAC v. Midland I. 8S. D., 648 F. Supp. 596 (W. D. 

Tex. 1986), 812 F., 24d 1494 (5th Cir. 1987), vasated 218 F. 24. 350 

(5th Cir. 1987), aff'd. en banc., 829 F. 2d 546 (5th Cir. 1987). 

The findings of the district court are not clearly erroneous. 

E. Dallas County 

1. Standard of Proof. Entz's Brief at 38-39 raises the 
  

issue that in a Section 2 case involving the judiciary the standard 

of proof should be "clear and convincing evidence" rather than a 

preponderance of the evidence. There is no law to support a change 

in the burden of proof. 

  

2. Statistical Data. Entz suggests that Dallas County 

has experienced significant growth since 1980, but offers only 

anecdotal evidence to support this claim. In fact, the Plaintiff- 

Intervenors' expert, Dan Weiser, testified that between 1980 and 

23 

 



  

1985 the growth rate was 15%, and a mere 3% from 1985 to 1988. He 

further refuted the notion that there were 100,000 Asians in the 

county. (TR. 3-44). 

Entz then relies upon Houston v. Haley, 859 F. 2d 341, 344 

(5th Cir. 1988), vacated on other grounds, 869 F. 2d 807 (5th Cir. 

1989) to support his proposition that something other than the 1980 

Census must be used as a data base. Entz's Brief at 39-40. In 

fact, the 1980 Census was the data base utilized in Houston. The 

criticism there was that plaintiff's expert had failed to provide 

voting age population data. Plaintiffs provided such data here. 

(Plaintiffs' Exhibit D-01 and Dallas Plaintiff-Intervenors' Exhibit 

06) 

Finally, Entz argues that the assumptions employed by 

Plaintiffs' expert in using total population data as a surrogate 

for actual voter data are not warranted. Overton Vv. City of 

Austin, 871 F. 24 529, 539, fn. 13 (5th Cir. 1989) criticizes the 

expert there for not providing statistical significance tests for 

his polarization analysis. The Court there explains that since 

assumptions are a necessary part of such polarization analysis, 

significance tests are required. Plaintiffs' expert, Dr. Richard 

Engstrom, ran these tests which revealed that the relationships 

reported were statistically significant at a degree better than one 

in 10,000. (TR 2-127). 

3. Zimmer factors. 

a). Electoral success. Entz claims that Black 
  

electoral success approaches 50%. Entz's Brief at 41. This claim 

24 

 



is misleading. In general elections since 1980, black candidates 

have won 2 of 7 races. (Rec. Exc. p. 101) The same two black 

candidates had won their party primaries. (TR 4-105). of 

significance, these two winning black candidates had almost no 

black support, but were elected by white voters. (Rec. Exc. 101; TR 

2-132; 2-148; Rec. Exc. 101). Black electoral success attributable 

to white vote is not an indication of black access. Thornburg v. 

Gingles, 106 S. Ct. at 2779. 

b. Tvpes of Election Systems. The trial court 
  

found, based upon Plaintiffs' Exhibit TR-15, and Plaintiff- 

Intervenors' Exhibit D-4, that Dallas was a large district. (Rec. 

Exc. p. 72) County wide election districts have been held to be 

unusually large, both in terms .of geography and population, 

specifically Dallas County. Graves v. Barnes, 343 F. Supp 704, 725 

(1972) (3-judge court). The overlapping single member districts" 

are nothing more than a numbered place system. There is a majority 

vote requirement in party primaries. Terms for election are 

staggered. In fact, all of the dilutionary devices identified by 

this Court in Jones v. City of Lubbock, 727 F. 2d 364 (5th Cir. 

1984) are present in all the targeted counties. 

c. Slating. Although there was evidence that the 

Republican Party functioned in Dallas County as a white slating 

group, the Court disagreed with this evidence. (Rec. Exc. at 72) 

d. Lingering Effects of Past Discrimination. Entz 
  

suggests that Plaintiffs not only failed to prove the lower socio- 

economic status of blacks, but also that they have the burden of 

25  



  

J] » 

establishing a causal link between a lower socio-economic status 

and the history of discrimination. Entz's Brief at 42. 

Plaintiffs' Exhibit D-13 shows a clear pattern that in Dallas 

County blacks lag behind whites in the areas of employment, income, 

education, and poverty level. The legislative history to the 1982 

amendments to the Voting Rights Act refutes the contention that 

such a causal link need be established. Senate Report, at 207, fn. 

114. See also: White v. Regester, 412 U. S. at 768; Kirksey v. 

Board of Supervisors, 554 F. 2d 139, 145. 

e. Tenuousness. Although the district court found 
  

that the current at large system of electing district judges was 

not tenuous, such a finding is not required. Such a finding has no 

probative value for evaluating the fairness of an electoral 

system's impact. Jones v. City of Lubbock, 727 F. 2d 364, 383 (5th 

cir. 1984). 

f. Racial Appeals. Entz has misstated the district 
  

court's finding regarding racial appeals. Entz's Brief at 43. Of 

three instances examined, the court found racial appeals in two and 

a sexual appeal in the other. (Rec. Exc. 72-73) 

g. History of Discrimination. . There is no 
  

requirement that a plaintiff demonstrate that past discrimination 

has present effects. That is a separate question involved with the 

combined effect of lower socio-economic status and political 

participation. Jones v. City of Lubbock, 727 F. 2d 364, 383 (5th 

Cir. 1984). 

F. Harris County 

26 

 



+ > 
Iv. 

ORDERING NON-PARTISAN JUDICIAL ELECTIONS AS AN INTERIM 

REMEDY IS BEYOND THE DISTRICT COURT'S REMEDIAL POWERS 

Plaintiff-Appellees agree with the State Defendants that when 

the district court adopted a non-partisan election plan as its 

interim remedy (Rec. Exc. pp. 142-159), it overstepped its 

authority for the reason that the issue was neither challenged nor 

litigated by.the parties.’ In this instance, the district court 

should have deferred to the state's policy choice for partisan 

elections as expressed in its statutory scheme, and the agreed 

interim plan presented to the district court by plaintiffs, 

plaintiff-intervenors, and the state defendants. 

V. 

THE VOTING RIGHTS ACT IS CONSTITUTIONAL 

Appellants Entz and Wood claim that the Voting Rights Act is 

unconstitutional on its face and as applied. Entz's Brief at 20- 

26; 34-36; Wood's Brief at 22-24. 

This is no longer an open question. This Court has met the 

challenge in Jones v. City of Lubbock, 727 F. 2d 364, 372-380 

(1984). 

Entz's argument that the 15th Amendment to the U. 8S. 

Constitution deals only with access to the ballot takes too narrow 

a view of the concept of access. Entz's Brief at 24. The concept 

  

7” otherwise, Plaintiffs agree with the interim election plan 
adopted by the district court. 

28  



  

¢ w 

is not limited to the right to cast the ballot as Entz suggests, 

. but includes the entire political process. White v. Regester, 412 

U. S. 765 (1973), Nevett v. Sides, 571 F. 2d 209, 217 (5th Cir. 

1978), Kirksey v. Board of Supervisors of Hinds Co., Miss., 554 F. 

2d 139, 143 (5th Cir. 1977), and David v. Garrison, 553 F. 2d 923 

(5th Cir. 1977) all discuss the concept of access in terms of 

access to the entire political process, including the election of 

candidates of choice. 

Wood's argument that the application of Section 2 to the 

judiciary would interfere with jurisdiction, venue, and jury 

selection. Wood's Brief at 23. She opines that problems related 

to the disparity between the electorate of the judgé and the 

jurisdiction of the court would cause "grave problems."3 The 

district court's interim remedy does not interfere with any of 

these concepts, only with the dilutionary effect of county wide 

elections. 

VI. 

DENIAL OF INTERVENTION OF THE BEXAR COUNTY DISTRICT 
JUDGES WAS PROPER 

Appellants Rickhoff, Reed, Specia, Harle, MacRae and Peden 

(Bexar Appellants) appeal from the denial of their Motion to 

Intervene. Plaintiffs-appellees object to their intervention 

  

8 Such a "disparity" is already embodied in Texas state 
policy. Justice of the Peace courts are elected from sub-districts 
within a county, but have county-wide jurisdiction. Texas 
Constitution, Art. 5, Sec. 18 & 19; Texas Government Code, Sec. 
27.031, Jurisdiction. 

29 

 



  

¢ 4 

concerning the merits’ of this case but not to their intervention 

concerning a final remedy. Courts may properly limit intervention 

only to remedial issues when trial of the merits is over. Hodgson 

v. United Mine Workers, 473 F.2d 118, 129 (5th Cir. 1972). 

The Bexar Appellants' intervention as of right concerning the 

merits of this case is not appropriate because 1) it is not timely, 

2) they do not have an adequate interest in the case and 3) they 

are adequately represented.” League of United Latin American 

citizens v. Clements, 884 F.2d 185, 187 (5th Cir. 1989). 

Analysis of timeliness'' requires review of all circumstances 

and especially four factors. Stallworth v. Monsanto Co., 558 F.2d 

257, 263 (5th Cir. 1977). Here, the Bexar Appellants do not meet 

at least two prongs of this test. First, the "length of time 

during which [they] actually knew or reasonably should have known 

of [their] interest in the case before [they] petitioned for leave 

  

° The Bexar Appellants run unopposed in 1990. Brief at 
Paragraph XLII. They do not have "such a personal stake in the 

outcome of the controversy" about the lower court's 1990 plan to 

have standing to contest that plan's validity. Baker v Carr, 369 
U.S. 186, 204 (1962). 

10 The Bexar Appellants claim that no one opposed their Motion 
to Intervene. The lower court ruled, however, ‘before the close of 

the response time. 

"" The timeliness cases that the Bexar Appellants cite in 
Paragraph XXXV of their brief do not apply here. United Airlines, 
Inc. v McDonald, 432 U.S. 385 (1977) considers a class member's 

intervention, but here no class of defendants has even been 
requested. Hodgson is discussed above in the text. Smuck Vv 
Hobson, 408 F.2d 155 (D.C. Cir. 1969) and Hobson v Hansen, 44 
F.R.D. 18 (D.D.C. 1968) discuss the relevant interest, not 
timeliness. To the extent that Hobson discusses timeliness, it 
does not apply here because the Attorney General has appealed on 

the merits. Hobson, 408 F.2d at 181. 

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¢ " 

to intervene," Id. at 263, militates against intervention. This 

lawsuit received extensive publicity in both major newspapers in 

Bexar County since 1988. Instead of intervening promptly, as 

others did, the Bexar Appellants delayed until the end of December, 

1989.1" 

Second, the Bexar Appellants' intervention on the merits would 

severely prejudice the existing parties, Id. at 263, because they 

would have to relitigate the Section 2 violation in Bexar County. 

"Certainly, having to retry a case is recognized as prejudicial." 

Jones, 735 F.24 at 935, 

In addition to their tardiness, the Bexar Appellants do not 

have an interest that supports intervention. They cannot intervene 

as officials. LULAC, 884 F.2d at 187-9. Similarly, they cannot 

intervene as individuals.™ The lower court incorrectly relied 

on Williams v. State Board of Elections, 696 F.Supp. 1563 (N.D.I11. 

1988), when it permitted the individual capacity interventions of 

sitting district judges Entz and Wood, appellants herein. Williams 

addresses the election of judges in Illinois. It relies on Board 

of Regents v. Roth, 408 U.S. 564 (1972), to decide what process is 

  

12 Bexar Appellants do not approve of the Attorney General's 
conduct in the case. It is not, however, necessary for them to 
know of, or agree with, the outcome of the case. They merely must 
know or have reason to know that they "‘might' be affected by it." 
Jones v Caddo Parish School Board, 735 F.2d 923, 934 (5th Cir. 
1984) (en banc) (original emphasis). 

13 LULAC does not hold otherwise. Although it notes that the 
lower court distinguished between official and individual 
capacities, LULAC does not reach any conclusion about the propriety 
of intervention as individuals. This intervention is not proper. 
Ashmore, supra. 

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due. Roth relies on state law to determine the property at issue. 

Id. at 577. In the redistricting context in Texas, however, an 

official's property interest in office does not require the due 

process protection of adjudication. The legislative process 

suffices because only policy decisions are at stake. Tarrant 

County v. Ashmore, 635 S.W.2d 417 (Tex. 1982). Since the Bexar 

Appellants are not entitled to adjudication, they have no interest 

that justifies intervention. 

Further, the Attorney General adequately represents the Bexar 

Appellants' interests. His cross examination about Bexar County is 

lengthy. TR. 1-157 to 1-190. Further, he appealed and raises 

issues about the lower court's Bexar County order on the merits. 

Also, the Bexar Appellants caniok intervene permissively 

because 1) their intervention request is not timely and 2) their 

intervention would prejudice existing parties, as stated above. 

Bush v. Viterna, 740 F.2d 350, 359 (5th Cir. 1984). Reversal of a 

denial of permissive intervention is extraordinary and not 

appropriate here. Id. 

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CONCLUSION 

The Plaintiffs-Appellees, LULAC, et al., request that this 

Court AFFIRM the order of the trial court which found that the at- 

large system for electing Texas district judges in the targeted 

counties violates Section 2 of the Voting Rights Act, and AFFIRM 

the interim election plan with the exception of its non-partisan 

aspect. 

Dated: February 26, 1990 

Respectfully submitted, 

ROLANDO L. RIOS 

Southwest Voter Registration 
Education Project 

201 N. St. Mary's, Suite 521 
San Antonio, TX 78205 
512/ 222-2102 

GARRETT, THOMPSON & CHANG 

ATTORNEYS AT LAW 

A Partnership of 
Professional Corporations 

8300 Douglas, Suite 800 
Dallas, TX 75225 

52° 

By: 
  

William L. Garrett 

Attorneys for 
Plaintiffs-Appellees 

SUSAN FINKELSTEIN 

Texas Rural Legal Aid, Inc. 
201 N. St. Mary's, Suite 600 
San Antonio, TX 78205 
512/ 222-2478 

Attorney for Christina Moreno  



¢ » 

CERTIFICATE OF SERVICE 

  

The undersigned hereby certifies that a true and correct copy 
of the foregoing instrument was served upon the all parties hereto 
by delivery to their attorneys of record by ified 
prepaid, or by Federal Express, on Feb 

   
   

      

William L. Garrett 

34