Brief for Respondent-Intervenor

    NO. 90-813 

IN THE 

Supreme Court of the United States 
OCTOBER TERM, 1990 

HoustoN LAWYERS’ ASSOCIATION, et al., 

Petitioners, 

V. 

Jim MATTOX, et al., 
Respondents. 

On Writ of Certiorari to the United States 

Court of Appeals for the Fifth Circuit 

BRIEF FOR RESPONDENT-INTERVENOR 
HARRIS COUNTY DISTRICT JUDGE 

SHAROLYN WOOD 

Of Counsel: J. EuGENE CLEMENTS 

E V. KEVES PORTER & CLEMENTS 

RC 3500 NCNB Center 
PORTER & CLEMENTS 700 Louisiana Street 
700 Louisiana, Suite 3500 Houston, Texas 77002-2730 
Houston, Texas 77002-2730 Telephone: (713) 226-0600 
Telephone: (713) 226-0600 Facsimile: (713) 228-1331 
Facsimile: (713) 228-1331 

Attorney of Record for Respondent 
Harris County District Judge 
Sharolyn Wood 

MicHAEL J. Woop 
Attorney at Law 
440 Louisiana, Suite 200 

Houston, Texas 77002 
Telephone: (713) 228-5101 
Facsimile: (713) 223-9133 
  S—— 

Alpha Law Brief Co,— 6113 Aletha Lane — Houston, Texas 77081 — 789-2000 
   



 



I 

QUESTION PRESENTED 

Does Section 2(b) of the Voting Rights Act, 42 U.S.C. 
§ 1973(b), as amended, apply to vote dilution claims in 

judicial election systems generally or as they relate to 

elections of trial judges from independent but overlapping, 

county wide districts? 

  
 



    

II 

LIST OF PARTIES 

The participants in the proceedings below were: 

Plaintiffs: 

LULAC Local Council 4434 
LULAC Local Council 4451 
LULAC (Statewide) 
Christina Moreno 
Aquilla Watson 
Joan Ervin 
Matthew W. Plummer, Sr. 
Jim Conley 
Volma Overton 
Willard Pen Conat 
Gene Collins 
Al Price | 

Theodore M. Hogrobrooks 
Ernest M. Deckard | 
Judge Mary Ellen Hicks 
Rev. James Thomas 

Plaintiff-Intervenors: 

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

Defendants: 

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

 



I 

Thomas R. Phillips, Chief Justice, Texas Supreme Court 
Mike McCormick, Presiding Judge, Court of Criminal 

Appeals 
Ron Chapman, Presiding Judge, 1st Administrative 

Judicial Region 
Thomas J. Stoval, Jr., Presiding Judge, 2nd 

Administrative Judicial Region 
James F. Clawson, Jr., Presiding Judge, 3rd 

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

Judicial Region 
Robert Blackmon, Presiding Judge, Sth Administrative 

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

Judicial Region 
Weldon Kirk, Presiding Judge, 7th Administrative 

Judicial Region 
Jeff Walker, Presiding Judge, 8th Administrative 

Judicial Region 
Ray D. Anderson, Presiding Judge, 9th Administrative 

Judicial Region 
Joe Spurlock II, President, Texas Judicial Council 

Leonard E. David 

Defendant-Intervenors: 

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



  

Iv 

TABLE OF CONTENTS 

QUESTION PRESENTED .....0 cudusisiiionsssvausss 

VISE OF PARTUES ..o tae iiia ail a, 
TABLE OF AUTHORITIES. ...... ...... 0... 

OPINIONS AND JUDGMENT BELOW. ......00nesenns 

JURISDICTION an om Shain 

CONSTITUTIONAL PROVISIONS AND STATUTES IN- 
VOLVED... oi. vr caculie catidid ioc 30, 

STATEMENT OF THE CASE ........0i0cvriv nse 

1. Course of 'Proceetings ...u.: coro ivuiins cuisine os 

H. Statement ofl Facts ......... c.vivetsmies ries os 

SUMMARY OF THE ARGUMENT ...........co0c:.e 

ARGUMENT iors cron tins crvassnins sii vemos dons vy 

I PETITIONERS’ THRESHOLD ARGUMENT THAT 
THE INAPPLICABILITY OF §2 TO THE JUDI- 
CIARY GIVES STATES FREE REIN TO DIS- 
CRIMINATE IN JUDICIAL ELECTIONS IS BOTH 
WRONG AND DISINGENUOUS......... conc... 

II. VOTE DILUTION CLAIMS IN JUDICIAL ELEC- 
TIONS ARE BEYOND THE SCOPE OF § 2(b) OF 
THE VOTING RIGHTS ACT SINCE JUDGES 
ARE NOT “REPRESENTATIVES” WITHIN THE 
MEANING OE S2(hY. ...... rer iietss 
A. The Plain Language of § 2(b) Restricts Vote Di- 

lution Claims to the Election of “Representatives.” 

B. Treating Judges as “Representatives” for the Pur- 
poses of § 2(b) but Not for Purposes of the Ap- 
plication of the Equal Protection Clause and the 
One-Person, One-Vote Principle Makes a Mockery 
of Sound Statutory and Constitutional Construction. 

C. The Attempt to Treat Judges As “Representatives” 
Entails Intractable Practical and Constitutional 

Probleme: aa a ae, 

Page 

15 

17 

19 

22 

25 

   



  

III. 

IV. 

VI. 

VII. 

JUDGE HIGGINBOTHAM’S CONCURRENCE 
ELABORATES UPON THE SPECIAL CONSIDER- 
ATIONS IN THE ELECTION OF TRIAL JUDGES 
THAT MAKE THE EQUITABLE AND CONSTI- 
TUTIONAL APPLICATION OF § 2 IMPOSSIBLE. 

THE ENFORCEMENT OF § 2(b)’S VOTE DILU- 
TION PROVISIONS IN JUDICIAL ELECTIONS 
VIOLATES FUNDAMENTAL PRINCIPLES OF 
FPEDERALISV,, vil cei iver nin ds, 

PETITIONERS’ CLAIM THAT § 2 OF THE VOT- 
ING RIGHTS ACT MUST BE BROADLY CON- 
STRUED TO APPLY TO JUDICIAL ELECTIONS 
BECAUSE §2 IS COEXTENSIVE WITH 85 IS 
ERRONEOUS. ......c.cnieocivireihnrdvencai 

PETITIONERS’ CLAIM THAT THE ATTORNEY 
GENERAL’S INTERPRETATION OF THE VOT- 
ING RIGHTS ACT IS COMPELLING EVIDENCE 
OF ITS MEANING 1S ERRONEOUS. .......... 

PROTECTED CLASSES ARE NOT ENTITLED TO 
PROPORTIONAL REPRESENTATION IN THE 
STATE JUDICIARY. 0. i. viii ll ie 

CONCLUSION. ........  .ccssconbesiicnsnsnesivus- 

Page 

29 

34 

35 

41 

43 

47   

 



  

VI 

TABLE OF AUTHORITIES 

CASES Page 

Allen v. State Bd. of Elections, 393 U.S. 544, 89 S. Ct. 817 
060) 0 A Ee 36,37, 38 

Burford v. Sun Ol, 319 U.S. 315,63 S. Ct. 1098 (1943) .. 34 
Butts v. City of New York, 779 F.2d 141 (2d Cir. 1985), 

cert. denied, 478 US. 1021, 106 S. Ct. 3335 :(19%0) ... 31 
Chisom v. Edwards, 839 F.2d 1056 (5th Cir.), cert. denied 

sub nom. Chisom v. Roemer, 488 U.S. 955, 109 S. Ct. 390 
(108) sasha ra ane are aa 5,17,19,27 

City of Richmond v. J. A. Croson Co., 488 U.S. 469, 109 
S.Ct. 706 (1080)... . uf nies satnsivavianssdniin 45 

Clark v. Edwards, 725 F.Supp. 285 (M.D. La. 1988) ..... 27 
Dougherty County, Ga. Bd. of Educ. v. White, 439 U.S. 32, 

00 8. CL.i308 (1978) + u.coiesinnaritisinvnnsanssans 36 
Mallory v. Eyrich, 717 F. Supp. 540 (S.D. Ohio 1989), 

motion to dismiss granted, 898 F.2d 154 (6th Cir. 1990), 
on remand from Mallory v. Eyrich, 839 F.2d 275 (6th Cir. 
522 Eh Rene Ee Se SEE Ue Sa 28 

Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803) ... 25 
Mexican American Bar Ass’n of Texas (“MABA”) v. State 

of Texas, 755 F. Supp. 733, slip op. NO. 90-CA-171, 
A-90-CA-1018 (W.D. Tex., Dec. 26, 1990) (1990 WL 
23231(3)), Det. cert, filed (Feb. 27, 1991) ........... 2,42 

Mobile v. Bolden, 446 U.S. 55, 100 S. Ct. 1490 (1980) ... 20,21 
NAACP v. Hampton County Elec. Comm’n, 470 U.S. 166, 

103 S.Ct, 1128 (1988) co crsevesrescronnarenrornse 36,37 
Oregon v. Mitchell, 400 U.S. 112, 91 S. Ct. 260 (1970) .. 35 
Reynolds v. Sims, 377 U.S, 533, 834 8. Ct. 302 (1964) ... 23,24 
Rogers v. Lodge, 458 U.S, 013, 102 S, Ct. 3272 (1932) ... 22 
South Carolina v, Katzenback, 383 U.S. 301 (1965) .... 37,33 
Southern Christian Leadership Conference v. Siegelman, 714 

F.Supp. 511 (M.D. Ala, 1989) ...... cccsnsrisenes. 28 
Thornburg v. Gingles, 478 U.S. 30, 106 S. Ct. 2752 (1986) 

ers sss srs rvnsiercmsantsssstsoan safes carne 12,13, 24, 44 
Wards Cove Packing Co. v. Atomio, 490 U.S. 642, 109 

S. CL. 2115 (1080) le cncisssrssorrussrsssns 45 
Wells v. Edwards, 347 F. Supp. 453 (M.D. La. 1972), af/d, 

400 U.S. 1095, 93 S. CL. 904 (1973) ........cc0ni'es. 22,83 
Whitcomb v. Chavis, 403 U.S. 124, 91 S. Ct. 1858 (1971)..19, 21, 24 
White v. Regester, 412 U.S. 755, 93 8. Ct. 2332 (1973) ..19,21,24 
Younger ©. Harris, 401 U.S. 37, 91 8. Ct. 746 (1971) .... 34 

   



VII 

Page 

CONSTITUTIONS AND STATUTES 

United States Constitution, Amendment XIV ........... 22,41 
United States Constitution, Amendment XV ............ 41 
28 10 S.C. S201 ose cdi vices insets ovis nn pen 4 
23 US CoTI20UDY ovine vant sshonicinass vans 4 
$2 of the Voting Riohis Act, 42 USC, 31973 ........ passim 
23 of the Voting Righis Act, 42 US.C. §1973¢c ....... 2,35-42 
42 USC. S10IBHCY LY  ocevesisyvvnrsvinannenssoins 21 
42-80. SI083 eosin inser dai vsnrinsenins 3 
2CER. 331.01 (1934)... ierinsii in nsnnsenin. 36 
Texas Constitution of 1876, art. 7 ....vecssinnarossenas 2,5, 44 
Texas Constitution of 1876, $73) ..o.c. vic vane. 2.5 

OTHER 

S. Rep. No. 417, 97th Cong., 2d Sess. 2, reprinted in 1982 
1).S. Cope Conc. & ApmIN. News 177 .......... 20, 21, 36, 38, 39 

   



    

 



  

NO. 90-813 

IN THE 

Supreme Court of the United States 
OcTOBER TERM, 1990 

HousTON LAWYERS’ ASSOCIATION, et al., 
Petitioners, 

Y. 

Jim MATTOX, et al., 
Respondents. 

BRIEF FOR RESPONDENT-INTERVENOR 
HARRIS COUNTY DISTRICT JUDGE 

SHAROLYN WOOD 

Because the en banc ruling of the Court of Appeals 

that § 2(b) of the Voting Rights Act does not apply to 

the election of state district judges is correct, Respondent- 

Intervenor Harris County District Judge Sharolyn Wood 

(“Judge Wood”) respectfully requests that this Court 

affirm the Fifth Circuit’s en banc Opinion. 

OPINIONS AND JUDGMENT BELOW 

Judge Wood incorporates by reference the Houston 

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

and judgments below. Brief for Petitioners (hereinafter 

“HLA Brief’) at 1-2. However, she objects to the HLA’s    



  

2 

inclusion in the appendix to the HLA’s Petition for Writ 
of Certiorari (hereinafter “Pet. App.”) at pp. 305a-308a 
of a letter from Assistant Attorney General John Dunne, 

dated November 5, 1990, interposing an objection to the 

creation of fifteen additional district judgeships in Texas 

under § 5 of the Voting Rights Act. That opinion letter 

is not part of the record of this § 2 case.’ 

JURISDICTION 

Judge Wood incorporates by reference the HLA’s state- 

ment of jurisdiction, HLA Brief at 2. 

CONSTITUTIONAL PROVISIONS AND 

STATUTES INVOLVED 

Judge Wood incorporates by reference the HLA’s state- 

ment of statutory provisions involved. In addition, this 

case involves the fourteenth amendment to the United 

States Constitution, set out in the appendix to Judge 

Wood’s Brief in Opposition to HL A’s Petition for Writ 

of Certiorari (hereinafter “Wood App.”) at pp. Sa-6a; 

the fifteenth amendment, set out in Wood App. at p. 7a; 

§§ 7 and 7(a) (i) of the Texas Constitution of 1876 set 

out in Wood App. at pp. 1a-2a; and, collaterally, § 5 of 

the Voting Rights Act, 42 U.S.C. § 1973¢c, set out in 

Wood App. at pp. 3a-4a. 

1. Assistant Attorney General Dunne’s letter was part of a pro- 
ceeding filed by the Mexican American Bar Association to enforce 
the Justice Department’s denial of preclearance. Mexican American 
Bar Ass'n. of Texas (CMABALYY) 9. State of Texas, 735 F. Supp. 
735, slip op. NO. 90-CA-171, A-90-CA-1018 (W.D. Tex. Dec. 26, 
1990) (1990 WI. 25231(3)), pet. cert, fled (Feb..27, 1991). A 
three-judge panel of the Western District of Texas decided that case 
adversely to MABA on December 26, 1990. A copy of the three-judge 
panel opinion in ABA is reprinted herein at 1a-26a as Judge Wood’s 
Supplemental Appendix (“Wood Supp. App.”) to these proceedings. 

   



3 

STATEMENT OF THE CASE 

i. Course of Proceedings 

This case was brought in the United States District 

Court for the Western District of Texas, Midland Divi- 

sion, by the League of United Latin American Citizens 

(“LULAC”) and certain named black and hispanic 

individuals. The Plaintiffs, Petitioners in this Court, 

claimed that Texas’ constitutional and statutory system 

for electing district judges from county-wide districts vio- 

lated the fourteenth and fifteenth admendments to the 

United States Constitution, 42 U.S.C. § 1983, and § 2 

of the Voting Rights Act by diluting the votes of blacks 

and/or hispanics in 47 (later reduced to 10) of Texas’ 

most populous counties. 

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

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

the district court issued its Memorandum Opinion and 

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

constitutional claims but held that Texas’ system of elect- 

ing state district judges diluted the votes of minorities in 

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

Act. 

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

court issued an Order (the “Order”) enjoining the calling, 

holding, supervising and certifying of elections for state 

district judges under Texas’ judicial election system in the 

target counties and imposed its own Interim Remedial 

Plan. That Plan, which took effect immediately, on the 

last day on which filing was permitted for judicial races 

under Texas law, totally rewrote Texas’ comprehensive 

judicial election system set out in the Texas Government 

Code and Texas Election Code. It adopted virtually in 

   



  

4 

toto a remedial plan solicited by the district court and 

agreed upon by the Plaintiffs, HLA and Texas Attorney 

General Mattox without notice to the Defendant/Inter- 

venors Judge Wood and Dallas County District Judge 

Harold Entz (“Entz”). The essential feature of that Plan 

was the assignment of state district judges to legislative 

districts—two judges to each predominantly Democratic 

district and one judge to each predominantly Republican 

district. The primary difference between the district court’s 

Interim Remedial Plan and the Plaintiffs/Mattox’s Plan 

was the substitution of non-partisan elections for partisan 

elections. Judge Wood strenuously opposed both the In- 

terim Remedial Plan and the Plaintiffs/Mattox’s Plan on 

fourteenth and fifteenth amendment grounds. Defendants 

appealed both from the injunction under 28 U.S.C. § 1291 

and from the November 9 Opinion which the district 

certified for interlocutory appeal pursuant to 28 U.S.C. 

§ 1292(D). 

The Fifth Circuit Court of Appeals granted interlocu- 

tory review and enjoined imposition of the district court’s 

Interim Plan. Following expedited oral hearing on April 

30, 1990, a three-judge panel of the Fifth Circuit Court 

of Appeals ruled 2 to 1 in favor of the defense. The 

Court then ordered en banc review sua sponte and heard 

oral arguments on June 19, 1990. Of the thirteen judges 

who decided the case, twelve ruled that vote dilution 

claims under § 2(b) of the Voting Rights Act does not 

apply to state district judges.” A majority of seven judges, 

led by Judge Gee, held that the vote dilution provision 

in § 2(b) of the Voting Rights Act, added to the Act 

when it was amended by Congress in 1982, applies only 

to the election of “representatives” and therefore does not 

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

   



  

5 

apply to judicial elections. The Fifth Circuit thus over- 

ruled a previous Fifth Circuit panel opinion in Chisom 

v. Edwards, 839 F.2d 1056 (5th Cir.), cert. denied sub 

nom. Chisom v. Roemer, 488 U.S. 955, 109 S. Ct. 390 

(1988) which held § 2’s vote dilution provisions applied 

to judicial elections. Five judges, led by Judge Higgin- 

botham, held that § 2(b)’s vote dilution provisions apply 

to judicial elections in general but do not apply to single- 

judge trial benches. Only Judge Johnson dissented. On 

November 20, 1989 the HLLA timely filed its Petition for 

Writ of Certiorari. LULAC filed a Petition for Writ of 

Certiorari on December 14, 1990. Both petitions were 

granted on January 18, 1991, and were consolidated for 

review by this Court. 

ii. Statement of Facts 

Judge Wood files this Statement of Facts to correct 

misstatements and misleading statements in the HLA 

Brief. Judge Wood regrets the length of this Statement 

but regards it as imperative to correct Petitioners’ im- 

pression that Texas judicial elections are characterized 

by blatant discrimination. Petitioners claim that Texas’ 

judicial election system is a numbered post, majority vote, 

“winner take all” judicial election system (HLA Brief 

at 8), and they imply that Texas district courts function 

statewide by reason of statewide jurisdiction (HLA Brief 

at 7). Contrary to Petitioners’ implications, each state 

district court sits in a single-county or rural multi-county 

district with venue co-extensive with the electoral district, 

although jurisdiction technically extends to the State 

boundaries. Tex. Const. §§ 7 and 7(a) (f), Wood App. 

at la-2a. Moreover, Petitioners’ characterization of the 

judicial election system as a “winner take all” system 

simply means that only one judge is elected to each bench: 

   



  

6 

judges do not share the power of their office. The largest 

vote-getter wins the seat, although, in fact, if more than 

two candidates run for one bench in the general election 

only a plurality, not a majority, is required to win. While 

all Texas district courts are courts of general jurisdiction 

under the Texas Constitution, the district courts in the 

larger counties, including Harris County, are either statu- 

torily or by agreement divided into four areas of special- 

ized expertize: civil, criminal, family, and juvenile courts. 

Thus, district judges in the largest counties expressly run 

for and are elected to a specific civil, criminal, family, 

or juvenile specialty bench. 

Although Petitioners now acknowledge—as they did 

not in their Petition—that Texas has a partisan judicial 

election system, Petitioners omit and thus distort the 

effect of that partisan system on judicial elections. Under 

Texas’ partisan judicial election system, both political 

parties hold primaries in accordance with the detailed 

requirements of the Texas Election Code. That Code 

sets out very detailed and comprehensive election pro- 

cedures. Candidates of each party run for specific courts; 

if no candidate receives a majority in the primary, the 
two leading candidates face each other in a runoff; the 

winner of each primary or runoff then faces the other 

parties’ candidates in the general election; and the winner 

of a plurality in the general election occupies the bench 

for four years. Each bench enjoys county-wide venue, 

jury selection, and docket equalization, and each judge 

enjoys independent authority as the sole decision-maker 

on each case that comes before him or her. 

Principally because they ignore the distinctive features 

of a partisan election system—particularly one in which 

97% of all blacks vote a straight Democratic ticket re- 

   



7 

gardless of the race of the candidates—and particularly 

because they relied almost exclusively on bivariate statis- 

tical analysis of selected black/white races as “proof” of 

discrimination—Petitioners grossly misrepresent the results 

of Texas state district judge elections.? By definition, a 
“bivariate” analysis takes into account only two variables 

—the race of the voters and the results of the election. 

Thus, if the actual cause of electoral results is straight- 

ticket party voting in which almost all blacks vote Demo- 

cratic and the Democratic candidate loses, bivariate 

analysis will call that race racially polarized and, by 

implication, discriminatory. By then selectively analyzing 

only certain contested races in which a black Democrat 

ran against a white Republican (rather than a black 

Republican against a white Democrat or a black-supported 

white or hispanic Democrat against a white Republican) 

bivariate analysis can give the appearance of discrimina- 

tion where none, in fact, exists and where it can be proved 

that statistically significant racial discrimination was not 

a factor in the race. That is exactly what happened in 

this case; and that is why Judge Wood has requested 

remand to consider standard of proof issues should this 

Court hold that § 2(b) vote dilution claims apply to the 

judiciary.* 

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

County. 

4, The United States Attorney General also seeks further con- 
sideration of facts under the statutory “totality of the circumstances” 
test as discussed in Gingles. Attorney General's LULAC Amicus 
Curiae Brief at 17-28; Attorney General’s Chisom Brief at 34-35. 
The difference is that the Attorney General argues this as a reason 
for remand. Judge Wood seeks affirmance but is concerned that in 
the event of remand—no matter how unlikely—there be guidance 

a
  



  

8 

Relying on the manipulative statistical proof used in 

this case, Petitioners claim that “[a]lthough the population 

of Harris County is nearly 20% African American, and 

African American candidates have run in 17 contested 

district judge general elections in the County since 1980, 

only 2 of the African American candidates have won.” 

HLA Brief at 5, 12. Petitioners further claim that white 

voters “never gave even a bare majority of their votes 

to an African American candidate,” while black voters 

consistently gave more than 97% of their vote to African 

American candidates.” HLA Brief at 11. 

In fact, Petitioners’ expert, Dr. Richard Engstrom, 

analyzed only 17 selected contested black/white elections 

in Harris County since 1980. He ignored the three 1978 

district judge elections in which blacks ran—and won— 

contested races against a white candidate. Two of those 

black judges have run—and won—every four years since 

1978. Only one of those four races was contested; there- 

fore, Petitioners counted only that race. In addition, blacks 

have run in only 22 of the approximately 180 judicial 

races run in general elections for state district judge in 

Harris County from 1978 to 1989. The black candidate 

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

for a total success rate for black candidates of 32% in 

all races, and 18% in contested races. See Exh. DW-1; 

R. 242. Moreover, 11 of the 15 losses were attributable 

to only four candidates: Weldon Berry, Sheila Jackson 

Lee, Freddie Jackson, and Matthew Plummer. Exh. DW- 

1. In addition, no black district judge candidate has lost 

in the Democratic primary since 1984 except those run- 

as to the standard of proof and the political elements that are in- 
cluded within the “totality of the circumstances” under Whitcomb 
and its progeny. 

5. The case was tried before the 1990 elections. 

   



  

9 

ning against other blacks. Exh. DW-2; R. 62. Thus the 

percentage of black wins is seriously understated by 

Petitioners. 

An even more egregious distortion is the HLA claim 

that blacks consistently gave 97% of their votes to black 

candidates while whites never gave even a majority of 

their votes to black candidates. In fact, the testimony at 

trial proved conclusively that black voters consistently 

gave 97% of their vote to Democratic candidates— 
whether the candidates were black or white. When the 

black candidate was a Republican, the black voters voted 

95% against the black candidate and in favor of the 

white candidate. Since blacks invariably support Demo- 

crats, regardless of the candidate’s race, and since 58% 

of Harris County’s state district judges are Democrat, 

black-supported candidates have, in fact, won 58% of 

the time. Furthermore, the evidence is clear that those 

candidates could not have won without black support. 

In an equally egregious distortion, the HLA claims, 

“Even straight ticket party voting and candidate incum- 

bency failed to garner significant white votes for African 

American judicial candidates.” HLA Brief at 11. They 

claim that in 1986 “all 16 white Democratic incumbents 

were re-elected. All three African American Democratic 

incumbents lost.” HLA Brief at 11. They then imply 

that this claimed loss was due to the blacks having ap- 

peared in a photograph with white incumbents—making 

themselves easily identifiable targets of discrimination. 

HLA Brief at 11, n.13. In fact, only one incumbent black 

Democratic district judge ran (and lost) a contested race 

in 1986 (newly appointed Judge Matthew Plummer), 

while two incumbent black judges ran uncontested races 

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

DW-1.  



  

10 

The defense presented Dr. Delbert Taebel as an expert 

witness. In contrast to Dr. Engstrom, Dr. Taebel analyzed 

41 white/minority judicial races in Harris County since 

1980, including primary races, white/Hispanic races, and 

white/black races, mainly for state district judge. TR. 5- 

225; State Defendants’ (“D”) Exh. D-5. Dr. Taebel ran 

a “multivariate ecological regression analysis,” factoring 

in party affiliation as well as race. He testified that he 

factored in party and included more races, including 

primary races, because the purpose of a functional analysis 

is to determine how the political process works. TR. 5- 

161-165. Dr. Taebel testified that no one can evaluate 

partisan elections using a functional approach without 

taking parties into account because party affiliation over- 

whelms any other factors in describing how partisan 

elections work. TR. 5-233. 

Dr. Taebel testified that there are two ways to deter- 

mine whether partisanship or race best describes actual 

voting patterns. TR. 5-185-186. If the party vote remains 

similar from race to race in a general election, there is 

a high degree of partisan voting. TR. 5-186. Also, if 

there is a shift in white support of a minority candidate 

between the primary election and the general election, 

the shift indicates dilution by partisan voting. TR. 5- 

186-187. The first of these tests shows that in Harris 

County party voting by whites, blacks, and hispanics is 

exactly or almost exactly the same, regardless of the race 

of the candidates. TR. 5-227. Also, since black Democrats 

and white Democrats vote substantially the same in Harris 

County, TR. 5-268, it follows that under the second of 

these tests that any dilution of the vote for a black Demo- 

crat between the primary and the general election is due 

to dilution by Republican votes, not white votes. 

   



11 

Dr. Taebel testified that Harris County voting is very 

competitive between Democrats and Republicans and 

election results are unpredictable.® TR. 5-226. There is 

extensive straight-party voting. TR. 5-183; TR. 5-228. 

The swing voters, who constitute only 10-20% of the 

judicial voters, are a critical factor and vote in a variety 

of different ways. TR. 5-228-229. However, swing voting 

in Harris County has little or nothing to do with race. TR. 

5-232-233. Thus it is simply incorrect as a matter of fact 

to attribute black losses in judicial races in Harris County 

to racial bloc voting. 

Dr. Taebel’s testimony was corroborated by numerous 

witnesses for both sides who testified to the importance 

to electoral success or failure in Harris County of specific 

factors such as straight party voting (TR. 3-220 and 

3-325), the Democratic sweep in 1982 (TR. 3-256) and 

the Republican sweep in 1984 (TR. 3-294, 4-40), the 

importance of bar poll results in 1986 and 1988 (TR. 

3-319, 3-325, 4-56, 5-129), incumbency (TR. 3-325), 

and the effectiveness of particular campaign strategies 

(TR. 3-294). Studies commissioned by the Democratic 

judges in 1986 (including Plaintiff Matthew Plummer), 

made by Dr. Richard Murray, authenticated by him in 

deposition testimony, and introduced into evidence by the 

defense, also rejected racism as the cause of the 1986 

loss by three incumbent black judges’ (only one of whom, 

Judge Plummer, was a district judge), citing other factors 

such as their being relatively unknown and unable to 

raise funds, their concentration on seeking only minority 

6. Except in 1984 when straight ticket Republican judicial voters 
were sufficiently numerous to win all contested benches—no matter 
what the race of the Democratic candidate. 

7. These are the same three judges discussed by HLA. HLA 
Brief at 11.  



  

12 

support, low black voting, and their failure to obtain the 

endorsement of the Gay Political Caucus. TR. 2486-89; 

Exh. DW 15 at 15-17. In addition, although the HLA 

presented witnesses who testified that black losses in 

Harris County campaigns are due to racism, none could 

point to any racist element in his or her own campaign. See, 

e.g., testimony of former Judge Weldon Berry, TR. 4-55. 

Judge Manuel Leal testified that his Republican party 

affiliation, and not racial voting, caused his loss in 1982. 

TR. 4-246. Finally, Harris County District Clerk Ray 

Hardy testified by deposition summary that racism does 

not play a part in Harris County district judge races and 

has not done so in at least the last 15 years. TR. 4-255. 

Petitioners state that “the district court’s findings with 

respect to racially polarized voting were based on the 

dramatic results of the experts’ analysis.” HLA Brief at 

10. Petitioners neglect to mention, however, that the 

district court expressly held that two of the essential ele- 

ments of a vote dilution claim—political cohesiveness 

and ability of the white majority usually to defeat the 

minority’s preferred candidate—are proved only by statis- 

tical evidence of racially polarized voting, that testimony 

regarding party affiliation and the actual local factors 

that determine election outcomes while “credible” is 

“irrelevant” under controlling law and “legally incompe- 

tent” (Pet. App. at 222a-223a) and that “the addition 

of irrelevant variables [to regression or statistical analysis] 

distorts the equation and yields results that are indisput- 

ably incorrect under § 2.” Pet. App. at 287a.® Thus the 

8. In stating that the addition of irrelevant variables to statistical 
analysis distorts the equation, the district court was relying on a 
non-causal, statistical-based standard of proof of vote dilution set out 
in a minority section of Thornburg v. Gingles, 478 U.S. 30, 64, 106 

   



13 

“dramatic results” held by the district court to prove 

white bloc voting and racially polarized voting were 

strongly challenged by Judge Wood on appeal, both on 

evidentiary grounds and on standard of proof grounds. 

SUMMARY OF THE ARGUMENT 

This case presents three vital questions, each of which 

has both statutory and Constitutional implications. The 

vote dilution claims under § 2(b) apply to state judicial 

elections at all or (2) to the election of judges to indepen- 

dent benches of general jurisdiction. The third (3) asks 

whether a standard of proof of vote dilution is proper 

if it excludes as “legally incompetent” virtually all evi- 

dence of the actual local factors operative in judicial 

elections and determines the existence of discrimination 

solely on the basis of statistical evidence of minority 

losses. The Fifth Circuit answered both of the first two 

of these questions affirmatively. Since it held that vote 

S. Ct. 2752 (1986), the only case in which this Court has previously 
interpreted § 2 of the Voting Rights Act. 

As the Court is well aware, Gingles requires minority plaintiffs to 
meet an initial threshold burden of proving (1) that the minority is 
“sufficiently large and geographically compact to constitute a majority 
in a single-member district”; (2) that the minority is politically co- 
hesive; and (3) that “the white majority votes sufficiently as a bloc 
to enable it, in the absence of special circumstances . . . usually to 
defeat the preferred candidate of the minority.” 478 U.S. at 50-51. 

The minority section, Part III-C, in which Justice Brennan en- 
dorsed a non-causal statistics-based standard of proof of vote dilution, 
was expressly rejected by five members of this Court, all of whom 
expressed concern over its potential for distorting electoral results 
and/or introducing a proportionality requirement into § 2—in contra- 
diction of both the express wording of the section and its case history 
and legislative history. See Gingles, 478 U.S. 82-83 (White, J., con- 
curring in part and dissenting in part), 478 U.S. 84-105 (O’Connor, 
J., concurring in the judgment only). Judge Wood treated this subject 
exhaustively below in her Appellate Brief at 24-39.  



  

14 

dilution claims under § 2(b) do not apply to judicial 

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

affirms the Court of Appeals, this issue will have to be 

resolved later. Respondent Judge Wood therefore urges 

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

of proof issue. 

Petitioners’ threshold argument that the inapplicability 

of § 2 to the judiciary gives states free rein to discriminate 

in judicial elections is both wrong and disingenuous: this 

case deals only with vote dilution claims brought under 

§ 2(b) and claiming non-intentional discrimination. Vote 

dilution claims in judicial elections are beyond the scope 

of §2(b) of the Voting Rights Act, which guarantees 

protected classes the right “to elect representatives of their 

choice,” since judges are not “representatives” within the 

meaning of § 2(b). Application of § 2(b)’s vote dilution 

provisions to judicial elections violates fundamental legal 

rights and principles. Judge Higginbotham’s concurrence 

elaborates upon the special considerations in the election 

of trial judges that make the equitable and constitutional 

application of § 2 to such elections impossible. Petitioners’ 

claim that § 2 of the Voting Rights Act must be broadly 

construed to apply to judicial elections because it is coexten- 

sive with § 5 is erroneous. Petitioners’ claim that the United 

States’ Attorney General's interpretation of the Voting 

Rights Act is compelling evidence of the meaning of the Act 

is also erroneous. Petitioners’ essential claim—that pro- 

tected classes are entitled to proportional representation 

in the state judiciary—is precluded by the terms of the 

Act itself. The en banc majority opinion of the Fifth 

Circuit Court of Appeals in this case should, therefore, 

be affirmed. 

   



15 

ARGUMENT 

I. PETITIONERS’ THRESHOLD ARGUMENT 

THAT THE INAPPLICABILITY OF §2 TO 

THE JUDICIARY GIVES FREE REIN TO DIS- 

CRIMINATE IN JUDICIAL ELECTIONS IS 

BOTH WRONG AND DISINGENUOUS. 

Petitioners’ argument is tainted by the prevasive impli- 

cation that unless this Court declares that § 2 applies 

to the judiciary, states will be given a free reign to dis- 

criminate in judicial elections.” This claim is simply false; 

and the Fifth Circuit en banc majority opinion went to 

great lengths to demonstrate why such inflammatory 

claims are mistaken. 

While Petitioners give the impression that the Fifth 

Circuit held that § 2 does not ever apply to the judiciary, 

that is not the case. The Fifth Circuit, in fact, interpreted 

only part of § 2(b) of the Voting Rights Act, which was 

added to § 2 when it was amended in 1982.'° Judge Gee 
in his majority opinion expressly observed that the court’s 

9. See, e.g., HLA Brief at 34 (“If the concurrence’s analysis is 
right, then a state’s decision to set up its trial bench specifically to 
ensure the African-Americans have no say in the process of electing 
judges would be immunized from attack under § 2”). 

10. The relevant passage from the Act provides, 

(b) A violation of subsection (a) of this section is established 
if, based on the totality of circumstances, it is shown that the 
political processes leading to 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. . . . 

42 US.C. §1973(b) (emphasis added).  



  

16 

inquiry was limited to the question whether the language 

in § 2(b) prohibiting discriminatory practices in the elec- 

tion of “representatives” could be applied to the judiciary. 

Pet. App. at 12a. The effect of this limitation, as the 

Court stated, was to restrict the Fifth Circuit’s opinion 

to a ruling on the issue whether vote dilution claims can 

be brought in judicial elections. Pet. App. at 28a. As the 

Court observed, 

Both the broad and general opportunity to partici- 
pate in the political process and the specific one to 
elect representatives are . . . treated in the new sec- 
tion. As for the former, protecting it appears to 
involve all of the primal anti-test, anti-device con- 
cerns and prohibition of original Section 2; and its 
provisions may well extend to all elections whatever, 
as did they. These broader considerations center on 
the voter and on his freedom to engage fully and 
freely in the political process, untrammeled by such 
devices as literacy tests and poll-taxes. Where judges 
are selected by means of the ballot, those safeguards 
may apply as in any other election, a matter not 
presented for decision today. 

Pet. App. at 13a. The court further observed, 

[Als we have noted, it is only the application of the 
results test portion of amended Section 2 to vote 
dilution claims in judicial elections that is at issue 
today. Other portions of the section may well apply 
to such elections, as may the results test to claims 
other than those of vote dilution, along with the 
indubitably applicable Constitutional prohibitions 
against any intentional act of discrimination in any 
electoral aspect. 

Pet. App. at 28a (emphasis added). 

   



}7 

In addition, the Court noted, 

that there can be no doubt whatever that the pro- 
visions of the Fourteenth and Fifteenth Amendments, 
enforceable by means of Section 1983 actions, apply 
to judicial elections tc forbid intentional discrimina- 
tion in any of them. 

Pet. App. at 12a, n.6. The Fifth Circuit’s ruling is thus 

limited to one specific type of discrimination claim— 

although a very important one—the claim that the votes 

of a protected class can unintentionally be diluted through 

a state’s structure of its judicial election system, in viola- 

tion of § 2. 

II. VOTE DILUTION CLAIMS IN JUDICIAL ELEC- 
TIONS ARE BEYOND THE SCOPE OF § 2(b) OF 
THE VOTING RIGHTS ACT SINCE JUDGES 
ARE NOT “REPRESENTATIVES” WITHIN 
THE MEANING OF § 2(b).* 

The State of Texas has spoken repeatedly and clearly 

to the issue of judicial accountability to all the voters: 

11. The HLA has taken strategic advantage by incorporating by 
reference arguments made against the majority opinion in LULAC 
by the Petitioners in Chisom v. Roemer, No. 90-747, a separate case 
consolidated by the Court for oral hearing with this case. Since 
Respondents sought and obtained the majority opinion in the main 
action of this case (LULAC v. Clements, No. 90-974), and since 
it properly should be argued in tis case—not Chisom—Judge Wood 
will respond to the arguments against the majority opinion in 
LULAC which were relegated by Petitioners to their Chisom Brief 
and were incorporated by reference only in the HLA Brief. Judge 
Wood would also point out to the Court that by filing over-long 
briefs in both cases (62 pages for the HLA Brief and 65 pages for 
the Chisom brief), Petitioners have allowed themselves a combined 
total of 127 pages of argument to which Respondent Wood is re- 
quired to reply in 50 pages. Her argument, therefore, necessarily 
must summarize certain points where Petitioners can allow them- 
selves the luxury of detail.  



  

18 

whenever Texans of all colors have been given the op- 

portunity to express their own preferences they have voted 

overwhelmingly—both in the legislature and in referenda 

—for an elected state judiciary in which each judge is 

responsible to every voter in his judicial district and each 

district at the trial court level is community-wide, not 

drawn to serve any one racial group, religious group, or 

any other special interest. This is Texas’ interpretation 

and implementation of its fundamental state interest in 

structuring the state judicial system. It is supported both 

by the traditional concept of the role of judges and judicial 

systems as distinct from the roles of representatives and 

representative governmental bodies—such as state legisla- 

tures, city councils and school boards—and by funda- 

mental legal principles of federalism, due process, and 

equal protection. 

There is no support in either the plain language interpre- 

tation of the terms “representatives” and “judges” or in 

the legislative history of the 1982 amendments to the 

Voting Rights Act for Petitioners’ claim that judges are 

“representatives” of racial groups. Indeed, the attempt to 

force judicial elections to conform to structures established 

for “representative” government leads to intractable con- 

stitutional and practical problems which Petitioners at- 

tempt to wish away by arguing superficially that judicial 

elections are just like all other elections (HLA Brief at 

40-45) and that Congress’ judgment in providing a mech- 

anism in the Voting Rights Act for remedying discrimi- 

nation overrides any and all other considerations, includ- 

ing any state’s interest in even the most fundamental 

features of its governmental structures (HLA Brief at 

45-49). 

   



19 

A. The Plain Language of § 2(b) Restricts Vote 

Dilution Claims to the Election of “Repre- 

sentatives.” 

The Fifth Circuit’s en banc majority opinion below 

thoroughly analyzed and resoundingly rejected Petitioners’ 

claim that the “plain language” of § 2 requires its applica- 

tion to the judiciary. Pet. App. at 7a-19a. See Brief for 

Petitioners in Chisom v. Roemer, No. 90-754 (hereinafter 

the “Chisom Brief”) at 27-28; HLA Brief at 21-22. The 

Fifth Circuit majority began by observing that § 2 should 

not be pushed beyond its clear language “because of the 

highly intrusive nature of federal regulation of the means 

by which states select their own officials.” Pet. App. at 3a. 

Carefully examining the text of § 2(b) and its genesis in 

White v. Regester, 412 U.S. 755,93 S. Ct. 2332 (1973), the 

Court analyzed the background to the 1982 amendments to 

the Act, paying particular attention to the origin of the re- 

sults test in legislative redistricting actions and to the tradi- 

tional (indeed, prior to 1982, the universal) interpretation of 

the term “representative” by the courts as a term exclusive 

of the judiciary. Pet. App. at 9a-17a. It concluded that, 

in revising § 2 in 1982 to incorporate the “results” test 

promulgated in Whitcomb v. Chavis, 403 U.S. 124, 91 

S. Ct. 1858 (1971) and White, Congress intended to ex- 

tend that test no further than the legislative and executive 

branches and selected its language carefully to reach that 

result. Pet. App. at 4a. 

Petitioners argue the legislative history of the 1982 

amendments to the Voting Rights Act at length. Chisom 

Brief at 32-42. In the short space available to her, Judge 

Wood cannot replicate their detailed argument. However, 

she urges the Court to review the same subject as set out  



  

20 

in careful detail in the Fifth Circuit en banc majority 

opinion. Pet. App. at 9a-13c. In addition, Judge Wood 

would direct the Court to Senate Report 97-417, Congress’ 

official statement of the history and purpose of the 1982 

amendments to the Voting Rights Act. 

Senate Report No. 97-417 states, 

The objectives of S. 1992 as amended are as 
follows: (1) to extend the present coverage of the 
special provisions of the Voting Rights Act, Sections 
4,5, 6,7 and 8; (2) to amend Section 4(a) of the 
Act to permit individual jurisdictions to meet a new, 
broadened standard for termination of coverage by 
those special provisions, (3) to amend the language 
of Section 2 in order to clearly establish the stand- 
ards intended by Congress for proving a violation 
of that section. 

S. Rep. No. 417, 97th Cong. 2d Sess. 2, reprinted in 

1982 U.S. Cong. & ApMmIN. NEws at 178 (emphasis 

added). Thus, although Congress could have stated that 

it intended to extend or expand the coverage of § 2, it 

did not. Instead, it expressly stated that its intent was to 

clarify the standard of proof of a § 2 violation. 

Senate Report 97-417 goes on to explain that the 

amendment to § 2 

is designed to make clear that proof of discrimina- 
tory intent is not required to establish a violation 
of Section 2. It thereby restores the legal standards, 
based on the controlling Supreme Court precedents, 
which applied in voting discrimination claims prior 
to the litigation involved in Mobile v. Bolden. The 
amendments also adds a new subsection to Section 2 

   



21 

which delineates the legal standards under the results 
test by codifying the leading pre-Bolden vote dilution 
case, White v. Regester. 

S. Rep. No. 417, 97th Cong., 2d Sess. 2, reprinted in 

1982 U.S. CoNGg. & ApMIN. NEws at 179. Thus the 
amendment neither expands nor contracts the scope of § 2; 

instead, it expressly restores the prevailing standard of 

proof prior to Bolden and codifies the standard of proof 

set out by the Supreme Court in White v. Regester, a pre- 

Bolden legislative redistricting case. 

Given the apparent care taken in the choice of the 

word “representative” in § 2(b), it makes a mockery of 

customary canons of statutory construction to argue, as 

Petitioners do, that this careful specificity should give way 

to the general definition of the term “voting” in 42 U.S.C. 

S$ 19731(c) (1). HLA Brief at 22; Chisom Brief at 17-29. 

First, in regard to the Voting Rights Act generally, Peti- 

tioners’ interpretation would preclude any limited language 

in any section of the Act having any effect whatsoever 

so long as the word “vote” or “voting” was used in the 

section. In regard specifically to vote dilution claims under 

§ 2, Petitioners’ interpretation would have even those 

“candidates for public or party office” § 2 vote dilution 

claims cover to which the concept of vote dilution 

obviously cannot apply, such as, for example, candi- 

dates for mayor, county superintendent of education, 

administrator, sheriff or tax collector. It is therefore not 

true that the “plain language” of § 2 extends to judges 

12. Mobile v. Bolden, 446 U.S. 55, 100 S. Ct. 1490 (1980), had 
declared that proof of intent to discriminate was necessary to estab- 
lish a claim under § 2. White v. Regester, 412 U.S. 755, 93 S. Ct. 
2332 (1973), established a “results” test of vote dilution claims 
derived from Whitcomb v. Chavis, 403 U.S. 124, 91 S. Ct. 1858 
(1971).  



  

22 

simply because judges are candidates for public office, 

as Petitioners claim. 

B. Treating Judges as “Representatives” for 

the Purposes of § 2(b) but Not for Purposes 

of the Application of the Equal Protection 

Clause and the One-Person, One-Vote Prin- 

ciple Makes a Mockery of Sound Statutory 

and Constitutional Construction. 

Petitioners claim that “the fact that one-person, one- 

vote rule does not apply to judicial elections is irrelevant 

to the application of the Voting Rights Act to the election 

of judges.” HLA Brief at 23; Chisom Brief at 43-49. 

Petitioners allude to this Court’s affirmance of Wells v. 

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

U.S. 1095 (1973).'® Petitioners have a strong interest in 

the applicability of the one-person, one-vote principle to 

judicial elections since many (if not all) of their proposed 

remedies for vote dilution—including the Interim Plan 

proposed by Petitioners and adopted by the district court 

in the instant case—fail to satisfy that principle. See supra 

at 4. Nevertheless, the argument that that fourteenth 

amendment principle is irrelevant to the interpretation of 

a statute (§ 2) which derives its validity from the four- 

teenth and fifteenth amendments is absurd. 

In expounding the *plain meaning” of the term “repre- 

sentative,” the Fifth Circuit majority paid particular at- 

tention to Wells. Wells held that the one-person, one-vote 

principle does not apply to the judiciary since, 

13. See Rovers v. Lodge, 458 U.S, 613, 617, 102 8. Ct. 3272 
(1982) (tracing the authority for holding vote dilution claims un- 
constitutional to the equal protection clause of the fourteenth amend- 
ment). 

   



3 

“Judges do not represent people, they serve people.” 
Thus, the rationale behind the one-man, one-vote 
principle, which evolved out of efforts to preserve 
a truly representative form of government, is simply 
not relevant to the makeup of the judiciary. 

“The State judiciary, unlike the legislature, is not the 
organ responsible for achieving representative govern- 
ment.” 

Pet. App. at 18a (quoting Wells, 347 F. Supp. at 455- 

56). The Fifth Circuit stated, 

It is impossible, given the single point at issue and 
the simple reasoning stated, to believe that the ma- 
jority of the Supreme Court, in affirming Wells, 
did not concur in that reasoning. 

Pet. App. at 19a. Thus, according to the Fifth Circuit 

en banc majority, the very justification for the non-applica- 

bility of the one-person, one-vote principle is the non- 

“representative” nature of the office of a judge. 

The Fifth Circuit majority substantiated its con- 

clusion by a thorough analysis of the genesis of the 

concept of vote dilution in legislative apportionment cases 

brought under the equal protection clause of the four- 

teenth amendment. As the majority opinion points out, the 

concept of individual vote dilution was first developed by 

this Court in the legislative apportionment case of Reynolds 

v. Sims, 377 U.S. 533, 84 S. Ct. 1362 (1964), which pro- 

vided a standard of measure and a remedy for individual vote 

dilution by promulgating the doctrine of one-person, one- 

vote under the constitutional authority of the fourteenth 

amendment. Pet. App. at 21a. Subsequently, the concept 

of one-person, one-vote provided the foundation for the  



  

24 

concept of minority vote dilution elaborated in Whitcomb 

and White. Pet. App. at 21a. Thus, both the general 

concept of individual vote dilution and the specific con- 

cept of minority vote dilution are integrally related to the 

concept of one-person, one-vote. Moreover, Thornburg v. 

Gingles—the only case in which this Court has reviewed 

the concept of minority vote dilution since the Voting 

Rights Act was amended in 1982—presupposes that the 

one-person, one-vote principle applies to elections covered 

by § 2 and builds into the test for vote dilution a potential 

remedy through the use of single member districts in 

which the aggrieved minority can constitute a majority. 

See supra at footnote 8. 

In light of Reynolds, Whitcomb, White and Gingles, 

the Fifth Circuit found itself compelled to conclude that 

vote dilution analysis can only be meaningful in cases 

in which the principle of one-person, one-vote applies. 

Indeed, it correctly observed that without the individual 

right of one person to one equally-weighted vote there is 

no standard of appropriate individual vote strength against 

which to measure alleged dilution; hence a court “can 

fashion no remedy to redress the non-existent wrong com- 

plained of.” Pet. App. at 20a-21a. Thus, if a court ac- 

knowledges the holding in Wells that the one-person, one- 

vote standard does not apply to the judiciary, it must 

logically conclude, as the Fifth Circuit did, that “judicial 

elections cannot be attacked along lines that their pro- 

cesses result in unintentional dilution of the voting strength 

of minority members.” Pet. App. at 20a. 

Furthermore, any court which interprets § 2 of the 

Voting Rights Act must conclude that the one-person, 

one-vote principle must apply to all legitimate claims 

   



23 

within the scope of the Act since a construction of a 

statute which conflicts with the constitutional principle 

from which the statute derives its legitimacy is void. 

See Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60, 

74 (1803). Thus there is only one reasonable interpreta- 

tion of § 2(b) which reconciles the requirement of the 

fourteenth amendment that the one-person, one-vote prin- 

ciple apply to vote dilution claims brought under the 

statute and the holding of this Court that the one-person, 

one-vote principle does not apply to judicial elections: 

namely, that judicial elections (like elections to any other 

non-representative office) fall outside the scope of the 

vote dilution provision of § 2(b). This interpretation is 

not only rational but sound in terms of the actual struc- 

ture of judicial election districts, which serve many legiti- 

mate and indeed fundamental concerns having nothing 

to do with either equally-weighted voting or minority 

voting rights. 

C. The Attempt to Treat Judges As “Represen- 

tatives” Entails Intractable Practical and 

Constitutional Problems. 

In actuality, the term “representatives” in § 2(b) of 

the amended Voting Rights Act cannot include judges 

without leading to impractical or unreasonable results 

which are plainly at odds with Congress’ comprehensive 

civil rights policies. The problem arises because, in fact, 

judges are not “representatives” within the ordinary mean- 

ing of the word. Judges do not represent the special 

interests of any constituency and certainly not the special 

interests of any racial group. Their function is to admin- 

ister justice fairly, efficiently and impartially for all, and 

for that reason judicial districts have never been drawn  



  

26 

in such a way as to give recognition to the special interests 

of any group of citizens in the community. Instead, in 

Texas, judicial districts have traditionally been drawn to 

ensure that all citizens who are likely to come before 

a court have a say in the election of each one of the 

court’s members. In general, the effort has been to see 

that jurisdiction, venue, and jury selection extend over 

a wide enough area to achieve fairness and to minimize 

forum-shopping and the control of courts by small, tight- 

knit special interest groups, and yet to provide for efficient 

administration of case loads. 

The function of courts has always been to ensure equal 

protection under the law and due process for all, and 

judicial election schemes have been tailored to serve those 

ends. When judges are held to be “representatives,” the 

interlocking web of jurisdiction, venue, docket control, 

jury venire, and indeed the accountability of judges to their 

electorate, is subordinated to the notion that the special 

interests of minority voters should be given particular 

attention—even though no one has ever explained what 

special interests of minority voters require “representation” 

in the judiciary or in what way the elected judiciary fails 

to respond to minority interests.'* 

14. Interestingly, Judge Johnson, the lone dissenter from the 
en banc Fifth Circuit’s holding that § 2 does not apply to trial judges, 
stated in his dissent from the hearing panels’ majority opinion: 

When weighing a state’s claim that it has a compelling interest 
in retaining the existing at-large system, courts should keep in 
mind the common sense notion that the role of judges differs 
from that of legislative and executive officials. Since it is not 
the role of judges to “represent” their constituents an examina- 
tion of the “responsiveness” of the elected official to minority 
concerns is clearly irrelevant. 

Slip op. at 21. The obvious question is how § 2 can be said to 

   



27 

The district court in Clark v. Edwards, 725 F. Supp. 

285 (M.D. La. 1988), which had been forced by the 

Fifth Circuit’s ruling in Chisom (later overruled by 

LULAC) to apply § 2 to the judiciary against its own 

better judgment, expressed the problem succinctly: 

Although the Court of Appeals squarely held in 
Chisom v. Edwards, 839 F.2d 1056 (5th Cir. 1988), 
that elections for judicial office are subject to Sec- 
tion 2, it cannot be gainsaid that judicial elections 
are different from other, particularly legislative, elec- 
tions. Judicial districts are created, not by reason of 
population, but for the purpose of the administration 
of justice in a particular jurisdiction. Judgeships are 
added, not because of population, but because of 
caseload. The boundaries of district courts are juris- 
dictional, not related to population. Judges are 
charged, not with making legislative or social policy, 
but with the duty of deciding individual cases accord- 
ing to the law, even when it is unpopular to do so. 

725 F. Supp. 285, 294 (N.D. La. 1988) (emphasis 

added). The problem with which that court was wrestling 

was the constitutionally and administratively insoluble 

problem of trying to forge a remedy for vote dilution in 

judicial elections that will both allow minority voters to 

have the controlling say in the election of a given per- 

centage of judges and at the same time preserve the 

independence and special non-legislative attributes of the 

judiciary and the constitutional rights of both voters and 

litigants. 

apply to the judiciary at all if its most ardent proponents concede 
that judges do not “represent” their constituents and judges are not 
elected to be responsive to minority concerns. 

 



  

28 

Judge Wood argued at length in her Fifth Circuit Reply 

Brief that no court which has been faced with the problem 

of devising a remedy for perceived vote dilution in judicial 

elections has been able to reach a satisfactory melding 

of the concepts of representatives—who serve the special 

interests of constituencies and, in order to serve those 

interests fairly, must be elected on a one-man, one-vote 

basis—and judges—who by definition, do not serve special 

interests and who, to ensure impartiality and account- 

ability to all, are elected at large from districts as wide 

as the community they serve. She hereby incorporates 

by reference the argument and authorities cited to that 

effect in her Reply Brief! 

In the case of representatives, the appropriate remedy 

for vote dilution simply lies in the creation of sub-districts 

which pose no new constitutional problems, but which 

rather enforce the Constitution. In the case of judges, 

the creation of sub-districts necessarily leads to equal 

protection, due process, jurisdiction, venue, and adminis- 

trative problems—not because no legislature or court is 

clever enough to come up with a remedy, but because 

the notion of judges as “representatives” inherently con- 

tradicts the notion of judges as servants of all the people. 

15. See, e.g., Mallory v. Eyrich, 717 F. Supp. 540, 542-45 (S.D. 
Ohio 1989), motion to dismiss granted, 898 F.2d 154 (6th Cir. 
1990), on remand from Mallory v. Eyrich, 839 F.2d 275 (6th 
Cir. 1988) (emphasizing the intractability of principles of reapportion- 
ment under the fourteenth amendment when applied to judicial elec- 
tions as well as fundamental considerations of the relationship be- 
tween the federal courts, state legislature, and state constitution); 
Southern Christian Leadership Conference v. Siegelman, 714 F. Supp. 
511, 521 (M.D. Ala. 1989) (seriously questioning “the propriety and 
wisdom of utilizing the Voting Rights Act to restructure judicial 
election schemes” and invoking the “real possibility that no fair, 
reasonable, and equitable remedy can ever be fashioned to redress 

~ 

whatever section 2 violations may exist”). 

   



29 

III. JUDGE HIGGINBOTHAM’S CONCURRENCE 

ELABORATES UPON THE SPECIAL CONSID- 

ERATIONS IN THE ELECTION OF TRIAL 

JUDGES THAT MAKE THE EQUITABLE AND 

CONSTITUTIONAL APPLICATION OF § 2 IM- 

POSSIBLE. 

Petitioners fundamentally misconstrue the significance 

of Judge Higginbotham’s concurrence in the en banc 

majority judgment below, which, in fact, focuses on the 

fundamental problems that arise when the concept of 

vote dilution is applied to non-representative offices such 

as the office of trial judge. 

Petitioners attack the concurrence principally on the 

ground that it “wrongly focuses on the post-election func- 

tion of Texas trial judges rather than the fairness of the 

electoral process.” HLA Brief at 25. The HLA distin- 

guishes three other grounds for attacking the concurrence 

which are all corollaries to their first objection: (1) that 

the minority opinion improperly creates per se rules im- 

munizing electoral practices from scrutiny under § 2; 

(2) that “it erroneously treats the state’s purported in- 

terests in maintaining the present system as a threshold 

question of § 2 coverage, rather than as only one, rela- 

tively minor, aspect of the totality of the circumstances 

test mandated by Congress”; and (3) that “it imports 

into the liability inquiry an issue more appropriately 

addressed at the remedy stage.” HLA Brief at 25. All 

objections boil down to one objection: namely that Peti- 

tioners would have this Court ignore the trampling upon 

constitutional rights and fundamental legal principles that 

occurs when § 2 vote dilution claims are applied to non- 

representative offices such as the judiciary—a trampling  



  

30 

which Judge Higginbotham’s concurrence describes with 

devastating clarity in the case of trial judges. 

Essentially, the Fifth Circuit’s five-judge concurring 

opinion, authored by Judge Higginbotham, emphasizes the 

impossibility of devising a constitutional remedy for sup- 

posed vote dilution in the narrow field of state district 

judge elections. Although Judge Higginbotham attributed 

the lack of remedy for perceived vote dilution in district 

judge elections to the fact that trial judges are sole 

decision-makers within their districts, rather than to the 

fact that trial judges are not “representatives” of their 

constituencies’ special interests, Pet. App. at 92a, the 

broad conclusion reached by the concurring judges is 

essentially the same as that reached by the majority: 

application of the concept of vote dilution to an elected 

state judiciary is inconsistent with fundamental legal con- 

cepts and constitutional requirements since the office of 

judge is essentially a non-representative office. 

As Judge Higginbotham points out, each trial judge is 

an official who exercises his full authority alone and 

whose authority has its source in an electorate coterminous 

with the effective jurisdiction of the court, so that there 

can be no dilution of votes for that sole decision-making 

office. Pet. App. at 93a. As Judge Higginbotham also 

acknowledges, the problem of applying the concept of 

vote dilution to trial judges does not stop there: “the fact 

that trial judges act singly is also integral to the linking 

of jurisdiction and elective base.” Pet. App. at 93a. While 

Petitioners make light of the sole-decision-making charac- 

teristic of the office of trial judge stressed by the minority 

opinion, that is one of the key reasons why the office 

cannot be considered “representative.” It is also a key 

reason why no remedy can be devised for “vote dilution” 

   



31 

in the election of the office since, as the minority opinion 

points out, 

Subdistricting would not create an equal opportunity 
for representation in decision-making, for 

[there can be no equal opportunity for represen- 
tation within an office filed by one person. Where- 
as, in an election to a multi-member body, a 
minority class has an opportunity to secure a share 
of representation equal to that of other classes by 
electing its members from districts in which it is 
dominant, there is no such thing as a “share” of a 
single-member office. 

Butts v. City of New York, 779 F.2d 141, 1438 (24 Cir. 

1083), cert. denied, 478 US. 1021, 106 8. Ci. 3335 

(1986). What subdistricting does, rather than provide 

minorities with representation in all decisions, is to simply 

allocate judges, and thus judicial decisions, among various 

population groups. The Voting Rights Act does not au- 

thorize such allocation. It cannot be made to authorize 

allocating judges by simply restating the office of district 

judge as a shared office or by asserting that the “function” 

of an office is not relevant. Saying that district judges 

in fact share a common office that can be subdistricted 

does not make it so. Nor does the assertion that function 

is not relevant make sense. Function is relevant to the 

threshold question of what features of the state arrange- 

ment define the office. 

Judge Higginbotham points out numerous important 

interests involved in the structuring of state judicial 

election systems that would be profoundly affected 

by the application of the vote dilution principle 

and Petitioners’ preferred remedy—subdistricting—to 

single-bench judicial districts. For example, in the  



  

32 

larger Texas counties, although district courts are 

courts of general jurisdiction, some judges are elected 

specifically to handle only juvenile or family law or crimi- 

nal cases. Pet. App. at 101a. This structure, like many 

others created over the decades to accommodate special- 

ized docket needs, geographical considerations, or other 

reflections of non-racial functional specificity, would be 

complicated, if not precluded, by the creation of sub- 

districts designed solely to fulfill minority voter quotas. 

As Judge Higginbotham further argues, to break the 

linkage between jurisdiction and elective base may well 

lessen minority influence instead of increasing it. Pet. 

App. at 105a. If there be any validity to Petitioners’ 

claim that in some broad sense elected judges are repre- 

sentative of the voters who elect them, in a world of 

racially and ethnically structured sub-districts, minority 

voters would have no influence on the election of most 

judges and, more likely than not, a minority litigant 

would be assigned to appear before a judge who was not 

elected from a district with greater than a 50% minority 
population. Pet. App. at 105a-107a. 

Further, requiring subdistricting to correct for vote 

dilution 

would change the structure of the government be- 
cause it would change the nature of the decision- 
making body and diminish the appearance if not 
fact of its judicial independence—a core element of 
a judicial office. Trial judges would still exercise 
their full authority alone, but that authority would 
no longer come from the entire electorate within 
their jurisdictional area. Subdistricting would result 
in decisions being made for the county as a whole 
by judges representing only a small fraction of the 
electorate. 

   



33 

Pet. App. at 108a. Judge Higginbotham concludes that 

this violence done the system not only would interfere 

with the state’s fundamental right to structure its judiciary 

without federal interference but it might also retard the 

goals of the Voting Rights Act itself. Pet. App. at 111a. 

The concerns expressed by Judge Higginbotham are 

not inconsequential considerations lightly arrived at but 

extremely serious consequences to be reckoned with if 

the concept of vote dilution under § 2 of the Voting 

Rights Act is applied to the judiciary in general and 

to. state district judge elections in particular. Re- 

spondent Wood and the Fifth Circuit majority would 

differ from Judge Higginbotham and those judges who 

concurred with him only by arguing that the violence 

done to the judiciary by application of § 2 vote dilution 

principles to those elections stems from an even more 

radical root than the fact that district judges are sole 

decision-makers whose authority is coterminous with their 

electoral base and jurisdiction: it stems from the non- 

representative nature of the judiciary. 

A state judiciary is either elected or appointed, as a 

state chooses, in order to serve the fundamental state 

interests of fairness and efficiency in the administration 

of justice and not at all to serve the special interests of 

any group of constituents, whether black or white, rich 

or poor, Jewish or Christian, residents of one neighbor- 

hood or residents of another. For that reason it neces- 

sarily does radical violence to the concept of an inde- 

pendent state judiciary, as well as to many constitutional 

and statutory safeguards, to insist that judicial districts 

be drawn solely to conform to demographic distribution 

or to insure the proportional representation of minorities 

in the judiciary (which is ultimately the same thing).  



  

34 

Judges are not representatives of their constituents, and 

judicial districts should not be structured to insure pro- 

portional racial representation. 

IV. THE ENFORCEMENT OF § 2(b)’S VOTE DI- 

LUTION PROVISIONS IN JUDICIAL ELEC- 

TIONS VIOLATES FUNDAMENTAL PRINCI- 

PLES OF FEDERALISM. 

One fundamental threshold principle which both the 

Fifth Circuit and the minority opinion address responds 

directly to Petitioners’ claims that a state’s interest in 

structuring its judiciary should be relegated to “one, 

relatively minor aspect of the totality of the circumstances 

test,” namely the principle of federalism. Despite Peti- 

tioner’s claim of triviality, there is an extremely serious 

question whether the use of the federal courts to force 

the fundamental restructuring of a state’s judiciary vio- 

lates principles of comity, equity, and federalism set forth 

in Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746 (1971) 

and Burford v. Sun Oil, 319 U.S, 315, 63.8. . Ct. 1093 

(1943). 

As the Fifth Circuit majority wrote: 

It is hard to envision any area lying closer to the 
core of state concerns than the process by which it 
selects its own officers and functionaries. Any fed- 
eral trenching here strikes at federalism’s jugular; 
and such a radical federal trenching as is contended 
for today should therefore demand a very clear state- 
ment indeed. 

Pet. App. at 33a. The minority was completely in accord, 

writing, 

It would run counter to fundamental concepts of 
federalism: 

   



  

35 

As broad as the congressional enforcement power 
is [under the fifteenth amendment], it is not un- 

limited. Specifically, . . . the power granted to 
Congress was not intended to strip the States of 
their power to govern themselves or to convert 
our national government of enumerated powers 
into a central government of unrestrained authority 
over every inch of the whole Nation. 

Oregon v. Mitchell, 400 US. 112, 128, 91 8. Ct. 260 

£1970). 

Since federalism is a fundamental threshold concept, 

it would obviously violate sound judicial process to rele- 

gate this principle to a role as merely one minor factor 

a court may consider in determining whether § 2 has 

been violated. The principle of federalism actually deter- 

mines whether the federal courts should enter areas such 

as the structuring of state judiciaries at all. 

V. PETITIONERS’ CLAIM THAT §2 OF THE 

VOTING RIGHTS ACT MUST BE BROADLY 

CONSTRUED TO APPLY TO JUDICIAL ELEC- 

TIONS BECAUSE § 2 IS COEXTENSIVE WITH 

§ 5 IS ERRONEOUS. 

Petitioners make the same fallacious argument for this 

Court that they made below: (1) this Court has declared 

that § 5 of the Voting Rights Act requires preclearance 

of all changes in election systems, no matter how minor; 

(2) this Court has held that § 5 applies to judicial elec- 

tions; therefore (3) § 2 necessarily applies to judicial 

elections and turns “all action necessary to make a vote 

effective in any primary, special or general election” into 

actionable discrimination. HLA Brief at 22; Chisom Brief 

at 29-32.  



  

  

36 

Judge Wood has already rebutted this fallacious argu- 

ment.'® Essentially, the fallacies are the following: 

Section 5 of the Voting Rights Act requires that 

certain affected states which historically used discrimina- 

tory voting tests or practices seek preclearance from the 

Justice Department before implementing any “voting 

qualification or prerequisite to voting, standing, practice 

or procedure with respect to voting” different from those 

in effect as of a date supplied by the statute.’ The 

Supreme Court has consistently held that § 5 is to be very 

broadly interpreted to include: 

“Any change affecting voting even though it appears 
to be minor or indirect, even though it ostensibly 
expands voting rights, or even though it is designed 
to remove the elements that caused objection by 
the Attorney General to a prior submitted change.” 

NAACP v. Hampton County Elec. Comm’n, 470 U.S. 

166, 179, 105 S. Ct. 1128, 1136 (1935) (quoting 23 

C.F.R. § 51.11 (1984) ); see also Dougherty County, Ga. 

Bd. of Educ. v. White, 439 US. 32, 37, 99 S. Ct. 363, 

371 (1978) (quoting Allen v. State Bd. of Elections, 393 

U.S. 544, 566, 89 S. Ct. 817, 832 (1969), that Congress 

16. See Judge Wood’s Fifth Circuit Post-Submission Brief and 
Supplemental En Banc Brief and her Brief in Opposition to LULAC’s 
Petition for a Writ of Certiorari. 

17. The State of Texas was originally excluded from those states 
which must seek preclearance under § 5. It was brought under § 5 
by the 1975 amendment of the Act, which newly defined the term 
“test or device” to include the use of English-only election materials 
in jurisdictions where a single language minority group comprised 
more than 5% of the voting age population, and which extended the 
Act to those jurisdictions which employed such a “test or device” 
as of November 1, 1972 and had a voter registration or turnout rate 
of less than 50%. See S. Rep. No. 417, 97th Cong., 2d Sess. 2, 
reprinted in 1982 U.S. Conc. & ApMIN. NEws 177, 186. 

 



  

37 

in enacting § 5 meant “to reach any state enactment 

which altered the election law of a covered State in even 

a minor way’). This Court has clearly held that § 5 

preclearance procedures reach changes in election pro- 

cedure with the potential for discrimination, regardless 

of whether those changes actually result in the im- 

pairment of the right to vote or were intended to have 

that effect. NAACP v. Hampton County, 470 US. af 

180-181, 105 S. Ct. at 1136-1137; see also Allen, 393 

U.S. at 569, 89 S. Ct. at 834. 

Petitioners erroneously claim that this Court has ac- 

corded § 2 the same broad scope as § 5, citing Allen 

v. State Bd. of Elections, 393 U.S. at 566-67 (see Chisom 

Brief at 27) and South Carolina v. Katzenbach, 383 

11.8. 301, 316 (1965) (see Chiscm Brief at 28). In fact, 

however, Chief Justice Warren, writing for the Court, 

expressly stated, 

We emphasize that only some of the many portions 
of the [Voting Rights] Act [of 1965] are properly 
before us. South Carolina has not challenged §§ 2 
. . . and other miscellaneous provisions having noth- 
ing to do with this lawsuit. Judicial review of these 
sections must await subsequent litigation. 

383 U.S. at 316, 36 §. Ct. at 312. Since, as pointed out 

above, both Allen and the later case of NAACP v. Hamp- 

ton County hold that § 5 can be violated even though 

a proposed electoral change has no discriminatory effect 

at all, § 2—which by its express terms applies only to 

electoral schemes which actually result in impairment of 

the right to vote or are intended to have such an effect— 

cannot be coextensive with the scope of § 5. Thus a close 

reading of Allen, Hampton County, and Katzenbach to-  



    

38 

gether supports the notion that § 2 could have broad 

scope—if at all—only by analogy to §5.'®* Any such 
analogy is, however, expressly precluded by the clear 

language of the official legislative history of the 1982 

amendments to the Voting Rights Act, S. Rep. No. 417, 

97th Cong., 2d Sess. 2, reprinted in 1982 U.S. Cong. & 

ADMIN. NEws 177. 

In its official statement for the record of the 

intended meaning and operation of the 1982 amend- 

ments to the Voting Rights Act, Congress expressly stated 

that an analogy between §§ 2 and 5 of the Voting Rights 

Act is “fatally flawed for several reasons.” S. Rep. No. 

417, 97th Cong. 2d Sess. 2, reprinted in 1982 U.S. CoNG. 

& ApMmIN. News at 177, 219-220. Congress explained 

that there is a “fundamental difference” between “the 

degree of jurisdiction needed to sustain the extraordinary 

nature of preclearance” required by § 5 and “the use of 

a particular legal standard to prove discrimination” in 

the courts, as permitted by § 2. S. Rep. No. 417, 97th 

Cong. 2d Sess. 2, reprinted in U.S. CONG. & ADMIN. 

News at 220. In its view, § 2 was “less intrusive on state 

functions” than § 5, whose preclearance procedures in- 

volve “a broad restraint on all state and local voting 

practices.” Id. (quoting testimony of Professor Dorsen) 

(emphasis added). The most fundamental flaw in the 

analogy is that it ignores the “terms and operation” of 

§ 2, which confine its application to actual racial dis- 

crimination and thus “avoid[s] the problem of potential 

over-inclusion entirely by its own self-limitation.” Sen. 

18. Allen suggests that § 2 also was intended to reach any state 
enactment which alters election law in even a minor way. 397 U.S. 
at 566; 89 S. Ct. at 832. However, this language is dictum in a case 
which is concerned only with the application of § 5 and which 
expressly finds that § 5 applies in cases in which § 2 could not apply. 

 



  

39 

Rep. No. 417 at 43, 97th Cong., 2d Sess. 2, reprinted in 

1982 U.S. CoNG. & ApMIN. NEws at 221. Unlike § 5, 

which could completely prohibit a widely used prerequisite 

to voting, like poll taxes, inconvenient polling places or 

literacy tests, or which could require minority set-asides, 

§ 2 could only invalidate election laws where discrimina- 

tion had, in fact, been proved. Id. 

In other words, in its official statement of the meaning 

and operation of the 1982 amendments to the Voting 

Rights Act, S. Rep. 97-417, Congress itself stated that 

the terms of § 2—at least as amended in 1982—and the 

operation of that provision only within situations of actual 

racial discrimination are self-limiting factors built into 

that provision which absolutely distinguish it from § 5. 

At the same time, Congress expressed its intent and con- 

fidence both that § 2 as amended is “less intrusive” than 

§ 5 and that, as amended in 1982, it cannot result in 

“wholesale invalidation of electoral structures.” S. Rep. 

No. 417 at 35, 97th Cong., 2d Sess. 2, reprinted in 1982 

U.S. Cong. & ADMIN. NEws at 213. The equation of the 

limited scope of § 2 as amended in 1982 with the broad 

scope of § 5 and the repudiation by the courts of the very 

“self-limiting” terms built into the amended section to 

prevent its use to invalidate whole electoral systems are 

thus antithetical to the intent of Congress in promulgating 

the 1982 amendments and to the meaning and purpose 

of the Act as amended. 

In sum, both Supreme Court interpretations of the 

scope of § 5 and Congress’ own official statement of its 

interest in promulgating the 1982 amendments to the 

Voting Rights Act compel the conclusion that the scope 

and function of §8 5 and 2 of the Voting Rights Act are 

radically different. Section 5 is prescriptive while § 2 is  



  

40 

remedial and punitive. Section 5 affects no extant voting 

practices or procedures; § 2 is designed to eliminate cer- 

tain existing discriminatory election practices in specified 

instances. In one sense the scope and impact of § 5 are 

much broader than those of § 2, namely in the sense 

that § 5 applies to all voting practices and procedures 

with the potential for discriminatory results, no matter 

how minor and no matter of what type; while § 2(b) 

vote dilution provisions, for example, applies only 

to elections of representatives from multi-member dis- 

tricts. In another sense, § 2, while it is designed 

only to correct existing racial discrimination in spe- 

cific instances, has the potential for a much greater 

impact on electoral systems, i.e., if it is misapplied to 

force the wholesale invalidation of electoral systems and 

the substitution of judicial judgment for the judgment of 

the citizens as to what their forms of government should 

be. 

The legislative history of the 1982 amendments to the 

Voting Rights Act makes it clear that Congress never 

intended the Voting Rights Act to reach and cure all 

voting inequalities in every electoral system at any cost 

in terms of the voting rights of the citizenry as a whole 

or the rights of states to structure their own electoral 

systems. In particular, Congress was wary of any use 

of the Act to force the wholesale invalidation and re- 

structuring of state electoral systems by the federal judi- 

ciary in the sole interest of maximizing the voting rights 

of protected minorities. That is why Congress did not 

extend § 5 of the Voting Rights Act to all jurisdictions, 

but only to those jurisdictions with a demonstrated history 

of racial discrimination and low voter registration and 

turnout. That is also why Congress did not extend § 2(b) 

   



  

41 

to all electoral practices and systems but only to the elec- 

tion of representatives from multi-member districts—elec- 

tions in which vote dilution can be simply cured by re- 

districting under the one-man, one-vote principle without 

destroying the function of the office, invalidating the 

entire system, or infringing other constitutional rights and 

guaranties. Finally, that is why Congress included the 

proviso in § 2 which expressly excludes causes of action 

aimed solely at securing proportional representation of 

protected minorities in an elected body or which bases 

its proof on lack of proportional representation—which 

is precisely the result Appellees seek and which the Dis- 

trict Court’s opinion mandates. 

It is therefore contrary to the meaning and operation 

of the Voting Rights Act to interpret §2 and §5 as 

jurisdictionally co-extensive and to assign to § 2 the broad- 

est possible scope in order to bring county-wide judicial 

election systems or any entire judicial election system 

within its purview. To extend § 2 to judicial elections is 

not only unwarranted but unnecessary. It ignores not only 

the protection of § 5 but also the protection of the four- 

teenth and fifteenth Amendments themselves, which to- 

gether prevent both potentially discriminatory and inten- 

tionally discriminatory judicial election practices. 

VI. PETITIONERS’ CLAIM THAT THE ATTORNEY 

GENERAL’S INTERPRETATION OF THE VOT- 

ING RIGHTS ACT IS COMPELLING EVI- 

DENCE OF ITS MEANING IS ERRONEOUS. 

Finally, Petitioners claim that “interpretation of the 

Voting Rights Act by the Attorney General is compelling 

evidence of the Act's meaning.” LULAC Brief at 13; 

HLA Brief at 22; Chisom Brief at 33-36. They then cite  



  

42 

to the Attorney General's consistent application of §5 

preclearance procedures to the judiciary and to Assistant 

Attorney General John Dunne’s refusal last October, 1990 

to preclear the creation of new Texas district court 

benches on the ground that he personally disagreed with 

the en banc decision of the Fifth Circuit on this § 2 case 
below. 

The three-judge panel which decided MABA this past 

December 26, 1990" put it best: 

We close by expressing our concern at the actions 
taken, and the position expressed, by the Attorney 
General and DOJ in this matter. Texas is within the 
geographical jurisdiction of the Fifth Circuit. On 
September 28, 1990, in LULAC, that court, sitting 
en banc, declared, by a margin of 12-1, that section 
2 does not apply to at-large, numbered-post, multi- 
member elections of district judges in Texas. By a 
margin of 7-6, the court declared that the election 
of judges, in general, is not within the ambit of 
section 2. 

Despite this plain ruling, the Attorney General, 
in his letter of November 5, interposed an objection 
to S.B. 1379 solely on the basis of his contention 
that “use of the at-large election system [sic] with 
numbered posts and majority vote results in a clear 
violation of section 2. . . .” During oral argument 
in the instant matter, the DOJ has asserted that it 
does not consider itself bound by the LULAC deci- 
sion, even as to electoral changes in the three states 
encompassing the Fifth Circuit. 

This position reflects a disturbing disregard for 
thernle of law, . . 

19. See supra at 13a-14a. 

   



43 

The orderly administration and enforcement of the 
Voting Rights Act must be based upon the rule of 
law, as enacted by Congress and interpreted by the 
courts. In our dark past, minority rights were abro- 
gated by defiant state officials who refused to accept 
the rule of law, as declared by the federal courts. 
That era, fortunately, has passed. We merely ob- 
serve that the commendable objectives of the Voting 
Rights Act can be achieved, as well, only through 
adherence to the orderly, albeit sometimes time-con- 
suming, process of court interpretation, to which the 
United States, like the states and private parties, is 
subject. 

Wood Supp. App. at 6a-7a. As the three-judge panel 

stated, the United States is an interested participant in 

this litigation; it is therefore subject to the rule of law 

like any other litigant. 

VII. PROTECTED CLASSES ARE NOT ENTITLED 

TO PROPORTIONAL REPRESENTATION IN 

THE STATE JUDICIARY. 

The central issue in this case—the one issue underlying 

all the preceding issues—is whether § 2(b) of the Voting 

Rights Act requires states to set aside separate and perhaps 

even demographically unequal mini-judicial districts in 

which black voters can ensure the election of black judges 

who will represent the interests of their constituents in 

dispensing justice. Petitioners argue that under the system 

they envision black judges would be accountable to 

black voters while other judges would be accountable 

to non-black voters®® and that a separate but equal 

20. This is the problem which so troubled Judge Higginbotham. 
See supra at 32. It is still a problem under the remedial schemes 
such as cumulative voting which are designed to give minority voters 
special influence in judicial elections and which Petitioners now sug- 
gest might provide an alternative to the minority/minority subdistrict- 
ing implied as a remedy by Gingles and urged by Petitioners below.  



    

44 

black judiciary serving the black community is essential 
to combat racism and discrimination in the election of 

black judges. Respondents argue that a separate but equal 

black judicial system encourages racism and divisiveness; 

and they would point out to the Court that absolutely 

no racism or discrimination was proved below. Indeed, 

the exact opposite was proved: there is no difference 

in the percentage of all votes or black votes received by 

Democratic candidates: black candidates share the fate 

of all Democrats whatever their color, subject only to 

the vagaries of politics. All the Petitioners proved below 

(even excluding the proven cause of the defeat of black 

candidates, namely partisan—not racial—voting), was 

that the percentage of black district judges in the Texas 

state judiciary falls short of the percentage of blacks in 

the total population of Texas. They overlook the facts, 

also proved below, that (using Harris County, Texas as 

an example) black-supported Democrats constitute 58% 

of the judges in Harris County;** that black judges con- 

stitute 5.1% of the state district judges in the county but 

attorneys constitutionally qualified to run for state district 

judge®*® are only 3.5% of the total qualified bar;** that 

21. That fact alone would prove that the white majority does not 
vote sufficiently as a bloc to enable it usually to defeat the preferred 
candidate of the minority if, as Justice Brennan’s minority opinion 
Gingles holds, that preferred candidate need not be minority. 478 
U.S. at 68. 

22. The Texas Constitution requires that district judges be citizens 
of the United States, have been practicing lawyers or judges in the 
State for the four years preceding the election, have resided in the 
judicial electoral district for two years, and reside in the district 
during his four year term. Tex. Const. of 1876, art. 7, Wood App. 
at la, 

23. Judge Wood contended below that under the legal principle 
adopted by this Court in analogous Title VII cases, the relevant 
standard for measuring minority electoral success for an office open 

 



  

45 

blacks have won all Democratic primary races in which 

they have run for state judge since 1984; that black can- 

didates have won 32% of all races for district judge in 

which they have run since 1978, including 18% of all 

contested races; and that if the black candidate had been 

elected every single time he. or she ran for office (i.e. 

22 out of approximately 180 Harris County races since 

1978), the percentage of blacks in the Harris County 

judiciary would still not approach the 18.1% entitlement 

to district judges benches which Petitioners claim.>* 

The Court should not be misled: Petitioners have not 

proved any racial discrimination in this case as that term 

is ordinarily understood. At most, they have shown that 

the percentage of state district judges in Texas falls short 

of representation proportional to the percentage of blacks 

in the total Texas population. The shortfall from propor- 

tional representation is undisputed. It is also expressly 

excluded as sufficient or controlling ground for a voter 

discrimination suit under the terms of § 2 itself, which 

states as amended: 

The extent to which members of a protected class 
have been elected to office in the State or political 
subdivision is one circumstance which may be con- 
sidered: Provided, That nothing in this section estab- 
lishes a right to have members of a protected class 

to only a small percentage of the electorate is the percentage of 
eligible candidates, not voters. Wards Cove Packing Co. v. Atonio, 
490 U.S. 642, 109 S. Ct. 2115 (1989) and City of Richmond ov. 
J. A. Croson Co., 488 U.S. 469, 109 S. Ct. 706 (1989). 

24. This fact would remain true even if the eleven races which 
were run and lost repeatedly by the same four black candidates in 
Harris County had been run by different people capable of holding 
office simultaneously.  



    

46 

elected in numbers equal to their proportion in the 
population. 

42 U.S.C. § 1973, reprinted in HLA Brief at 3 (emphasis 

added). 

Thus, even if Petitioners were right on all of the other 

issues before this Court—that judges are “representatives” 

of their constituents; that fundamental constitutional rights 

and legal principles would not be affected by the applica- 

tion of the concept of vote dilution to the judiciary or are 

irrelevant when the enforcement of minority rights is at 

stake; that § 5 preclearance standards are coextensive 

with and determinative of impermissible racial discrimina- 

tion under § 2—and Petitioners are not right on any of 

them—Petitioners would still be seeking by this suit to 

bring about the very state of affairs precluded by the 

statute under which they have sued—proportional repre- 

sentation—and they would measure their grievance strictly 

by this very shortfall from proportionality. To deny that 

they have such a cause of action is not racist discrimina- 

tion. It is the recognition that equitable and constitution- 

ally sound judicial election structures are characterized 

neither by proportionality nor by the representation of 

interest groups but by their ability to dispense fair and 

equal justice to all under a system in which each judge 

is equally accountable to every voter. 

 



  

47 

CONCLUSION 

Therefore, for the foregoing reasons, Respondent Harris 

County District Judge Sharolyn Wood requests that the 

Court affirm the en banc decision of the Fifth Circuit. 

Respectfully submitted, 

J. EUGENE CLEMENTS 
PORTER & CLEMENTS 
3500 NCNB Center 

700 Louisiana Street 
Houston, Texas 77002-2730 
Telephone: (713) 226-0600 
Facsimile: (713) 228-1331 

Attorney of Record for Respondent 
Harris County District Judge 
Sharolyn Wood 

Of Counsel: 

EVELYN V. KEYES 

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

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

Facsimile: (713) 223-9133  





  

la 

APPENDIX 

{To be reported at: 7535 F.Supp. 735) 

(Publication page references are not available 

for this document.) 

MEXICAN AMERICAN BAR ASSOCIATION 

OF TEXAS (MABA) (Statewide), et al., 

Plaintiffs, 

VY. 

The STATE OF TEXAS, 

Defendant, 

and 

Faith Johnson, et al., 

Defendant-Intervenors. 

UNITED STATES of America, 

Plaintiff, 

Vv. 

STATE OF TEXAS, et al., 

Defendants. 

Nos. MO-90-CA-171, A-90-CA-1018. 

United States District Court, 

W.D. Texas, 

Midland-Odessa Division. 

Dec. 26, 1990. 

Rolando L. Rios, San Antonio, Tex., William L. Gar- 

rett, Brenda Hull Thompson, Garrett, Thompson & Chang, 

Dallas, Tex., for plaintiffs.  



    

2a 

Robert H. Mow, Jr., Hughes & Luce, Dallas, Tex., 

Bobby M. Rubarts, David C. Godbey, Hughes & Luce, 

Dallas, Tex., for intervenors-plaintiffs. 

Renea Hicks, Tex., Javier P. Guajardo, Atty. Gen.’s 

Office, Austin, Tex., for defendant. 

Paul C. Isham, Decker, Jones, McMackin, McClane, 

Hall & Bates, Ft. Worth, Tex. 

Walter H. Mizell, Brown, Maroney, Rose, Barber & 

Dye, Austin, Tex. 

John H. Coates, Brown Maroney & Oaks Hartline, 

Austin, Tex. 

David R. Richards, Austin, Tex. 

Before JERRY E. SMITH, Circuit Judge, LUCIUS 

D. BUNTON, III, Chief District Judge, and WALTER 

S. SMITH, Jr., District Judge. 

MEMORANDUM OPINION AND ORDER 

In this consolidated case we sit as a special three-judge 

court pursuant to section 5 of the Voting Rights Act of 

1965 (the “Act”), 42 U.S.C. § 1973c. The private plain- 

tiffs in one action (No. MO-90-CA-171) and the United 

States in the other (No. A-90-CA-1018) ask us to enjoin 

the implementation, or continuing implementation, of 

certain alleged voting changes affecting the selection of 

state district judges in several designated counties in 

Texas. We conclude that as a matter of law the plaintiffs 

are entitled to no relief. 

L 

For the sake of simplicity, we consider the challenged 

judgeships in two groups: (1) the Travis County judge- 

 



  

3a 

ships and (2) the judgeships in what we will term the 

“other challenged counties,” which include the Texas 

counties of Dallas, Lubbock, Tarrant, and Victoria. Our 

basis for denying relief differs between the two groups, 

as their legal status is dissimilar. As to both groups, the 

plaintiffs challenge the continuing implementation of 

county-wide voting for multiple state district judge posi- 

tions within each of the subject counties. They assert that 

the at-large election of state district judges is in violation 

of section 2 of the Voting Rights Act, 42 U.S.C. § 1973. 

The United States Court of Appeals for the Fifth 

Circuit recently has held that section 2 does not apply 

to the election of judges. See League of United Latin 

American Citizens Council No. 4434 v. Clements, 914 

F.2d 620, 622 (3th Cir. 1990) (en banc) (overruling 

Chisom v. Edwards, 339 F.2d 10356 (3th Cir.), cert. 

denied, 4338 U.S, 958, 109 S. Ct. 390, 102 L..Ed.2d 379 

(1988) ), petition for cert. filed sub nom. Houston Law- 

yers’ Ass'n v. Mattox, 59 U.S.L.W. 3406, U.S , 

S.Ct . L.Ed 2d. (U.S. Nov. 21, 1990) 

(No. 90-813). Based at least in part, if not entirely, upon 

its view that it is not bound by that decision (hereinafter 

“LULAC”), the Attorney General of the United States 

on November 5, 1990, interposed an objection to the 

implementation of new district judgeships in the other 

challenged counties. The objection was interposed pur- 

suant to the Attorney General's conclusion that the State 

of Texas had not carried its burden, under section 5, 

of showing that the new judgeships would not violate 

section 2. 

  

    

A few days earlier, on October 26, 1990, the private 

plaintiffs had filed the instant complaint in No. MO-90-  



    

da 

CA-171. They assert that the new judgeships in the other 

challenged counties may not be implemented because, 

inter alia, they have not been precleared, allegedly as 

required by section 5, either the Attorney General or the 

United States District Court for the District of Columbia. 

Additionally, the private plaintiffs assert that two dis- 

trict judgeships in Travis County have not received pre- 

clearance as required. The private plaintiffs seek an in- 

junction proscribing all further elections in Travis County 

and the other challenged counties until preclearance is 

obtained. 

Following the Attorney General’s interposition of an 

objection as to the other challenged counties on Novem- 

ber 5, the United States filed the instant complaint in 

No. A-90-CA-1018, seeking to enjoin the implementation 

of the asserted voting changes in the other challenged 

counties. The United States and the Attorney General 

now contend, as well, that the Travis County judgeships 

were subject to preclearance requirements, were not pre- 

cleared, and now should be submitted for preclearance. 

II. 

We conclude that creation of the Travis County judge- 

ships at issue here is not subject to the preclearance re- 

quirement of section 5. The judgeships in question are the 

200th and 201st judicial district court, which were added 

to Travis County by S.B. 515, which bill was signed by 

the governor on June 1, 1971, and became effective on 

August 20, 1971. The bill created the 200th judicial 

district court effective September 1, 1971, and the 201st 

effective January 1, 1973. 

 



  

5a 

Section 5 was not applicable to Texas at that time, but 

the state became a covered jurisdiction on August 6, 

1975, by operation of Pub. Law No. 94-73, the 1975 

amendments to the Act. Section 204 of the enactment, 

89 Stat. 402, added language to section 5 to require pre- 

clearance as to “any voting qualification or prerequisite 

to voting, or standard, practice, or procedure with respect 

to voting different from that in force or effect on Novem- 

ber 1, 1972”. 

[1] Thus, in order to be a covered change, an electoral 

change in Texas must be different from one in “force or 

effect” as of November 1, 1972. S.B. 515 was in effect 

long before that date and has remained unchanged there- 

after. The effective date of the law, not the dates on 

which the respective judgeships were first filled through 

appointment or election, are determinative for purposes 

of section 35. 

At least one three-judge voting rights court in Texas 

has so held. In Hereford Indep. School Dist. v. Bell, 454 

F.Supp. 143, 145 (N.D. Tex. 1978) (three-judge court), 

the court explained that preclearance was required for 

election procedures “enacted after November 1, 1972.” 

[Emphasis added.] The same conclusion was suggested 

by the Supreme Court in Briscoe v. Bell, 432 U.S. 404, 

413 n. 12, 97 8. Ct. 2428, 2433 n. 12, 53 1L..Ed.2d 439 

(1977), which noted that as to Texas, the 1975 amend- 

ments established November 1, 1972, as “the precise date 

at which a coverage determination becomes effective, 

thereby requiring, for example, preclearance of any laws 

affecting voting rights after that date.” [Emphasis added.] 

The applicable test was enunciated in City of Lockhart 

v. United States, 460 U.S. 125, 103 S. Ct. 998, 74 L.Ed.  



    

6a 

2d 863 (1983). The Court observed that in ascertaining 

whether a change has a proscribed effect, “[t]he proper 

comparison is between the new system and the system 

actually in effect on November 1, 1972... .” Id. at 132, 

103 S. Ct. at 1003. Quoting Perkins v. Matthews, 400 

U.S. 379,.394, 91 8. Ct. 431, 439, 27 L.EBJA2d 476 

(1971), the Lockhart court noted that “‘§ 5’s reference 

to the procedure “in force or effect on November 1, 

19[72],” must be taken to mean the procedure that would 

have been followed if the election had been held on that 

date.” ” 

Here, the “system actually in effect on November 1, 

1972,” included the existing 200th and 201st district 

courts. A judge had been gubernatorily appointed to the 

200th court in August 1971, and primary elections were 

conducted in the spring of 1972. Although the general 

election was held within a few days after November 1, 

1972, absentee balloting was well underway by that date. 

A judge was gubernatorily appointed to the 201st court 

in January 1973. The primary and general elections were 

conducted, respectively, in the spring and fall of 1974. 

Under the reasoning in Perkins, if a hypothetical elec- 

tion had been conducted for the 200th and 201st courts 

on November 1, 1972, it would have been conducted 

under the system in place prior to that date, which in- 

cluded the existing two courts in question. Thus, we con- 

clude that the date of enactment, rather than the dates 

of the first elections for the respective two courts, is the 

appropriate date by which to determine applicability of 

section 3. 

We also observe that looking to the date of enactment 

is consistent with the posture taken by the Attorney Gen- 

 



  

7a 

eral concerning the questioned judgeships in the other 

challenged counties. In his letter of November 5, 1990, 

the Attorney General interposed objection to the changes 

effected by the enactment of the bill creating those courts. 

The Attorney General cannot have it both ways: If enact- 

ment is the operative event for purposes of the judgeships 

in the other challenged counties, the same must be true 

for the Travis County judgeships, as well. Hence, we 

deny all relief as to the Travis County judgeships. 

i. 

We conclude that creation of the questioned judgeships 

in the other challenged counties was precleared by opera- 

tion of law, assuming arguendo that the creation of new 

judgeships such as those at issue is subject to section 5’s 

preclearance requirement. The judgeships being chal- 

lenged herein in the other challenged counties were created 

by S.B. 1379, which was signed by the governor on June 

14, 1989, and established the judgeships effective Sep- 

tember 1, 1989. The bill created fifteen judgeships, which 
are set forth in the margin. 

1 
Court County (ies) Challenged 
363rd Dallas Yes 
364th Lubbock Yes 
365th Dimmitt, Maverick, Zavala No 
366th Collin No 
367th Denton No 
368th Williamson No 
369th Anderson, Cherokee No 
370th Hidalgo No 
371st Tarrant Yes 
372nd Tarrant Yes 
373rd Tarrant No 
374th Tarrant No 
375th Tarrant No 
376th Tarrant No 
377th Victoria Yes  



    

8a 

Section 5 permits a covered jurisdiction, such as Texas, 

to seek preclearance of electoral changes either by filing a 

declaratory judgment action in the United States District 

Court for the District of Columbia or by submitting the 

changes to the Attorney General. By the specific terms of 

section 5, a submitted change is deemed precleared as a 

matter of law if “the Attorney General has not interposed 

an objection within sixty days after such submission.” 

The Attorney General has promulgated regulations de- 

signed to implement the preclearance contemplated by 

section 5. See 28 C.F.R. ch. 1 pi. 31, “Procedures for the 

Administration of Section 5 of the Voting Rights Act of 

1965, as Amended.” The regulations reiterate the provi- 

sion in section 5 that a matter is deemed precleared if not 

objected to by the Attorney General within sixty days. 

28 CER. 8 51.1(a)(2) (1990). 

During the sixty-day period, the Attorney General may, 

by letter, request “any omitted information considered 

necessary for the evaluation of the submission.” Id. 

§ 51.37 (a). Significantly, “[w]lhen a submitting authority 

provides documents and written information materially 

supplementing a submission . . . , the 60-day period . . . 

will be calculated from, the receipt of the supplementary 

information. . . .” Id. § 51.39(a) (emphasis added). 

[2] The State of Texas asserts that S.B. 1379 was pre- 

cleared by operation of law in that sixty days had elapsed 

from its initial submission without either (1) the inter- 

For purposes of the present request under § 5 for injunctive relief, 
only those judgeships marked “Yes” under the “Challenged” column 
are being questioned by the plaintiffs. The 373rd, 374th, 375th, and 
376th courts do not exist, although nominally authorized by S.B. 
1379, as the statutory conditions necessary to bring them into exis- 
tence have not been met. 

 



  

Oa 

position of an objection or (2) the submission of “ma- 

terially supplementing” information. We agree and, hence, 

deny all relief as to the judgeships in the other challenged 

counties. 

The state submitted S.B. 1379 to the Attorney General 

on February 13, 1990; the sixtieth day for interposing an 

objection was April 16, 1990. During the period between 

February 13 and April 16, the state provided no addi- 

tional material, with one exception. 

On March 23, following a telephone conversation with 

an employee of the United States Department of Justice 

(DOJ), the state telecopied a copy of Tex. Const. art. V, 

§§ 7 and 7a, to the Voting Rights Section of the Civil 

Rights Division of the DOJ. Each of those constitutional 

sections had been precleared by the Attorney General 

by letter dated October 1, 1985. 

By letter dated April 11, the Attorney General's office 

notified the state that supplemental information had been 

received and that, consequently, the deadline for objec- 

tion had been extended to May 22. The letter did not 

assert that the additional information constituted a ma- 

terial supplement. 

Between March 23 and May 22, the state furnished 

no additional material, with one exception. By letter dated 

May 16, referencing a telephone conversation with a 

DOJ employee, the state, by letter to that employee, 

requested that she consider, in regard to the submission 

of S.B. 1379, the panel opinion in LULAC, 902 E.2d 

283 (5th Cir. 1990) (declaring section 2 inapplicable to 

multi-member, county-wide judgeships), and the then- 

anticipated en banc opinion (which in fact was issued 

the following September).  



  

  

  

10a 

By letter dated May 18, the Attorney General’s office 

notified the state that by virtue of the state’s May 16 

letter, the deadline for objection had been extended to 

July 16 (the sixtieth day after May 16). Then, following 

the en banc oral arguments in LULAC that occurred on 

June 19, 1990, the state, by letter dated July 2, 1990, 

purported to withdraw its submission of S.B. 1379. 

Immediately following issuance of the en banc opinion in 

LULAC on September 28, 1990, the state on October 2 

resubmitted S.B. 1379 to the Attorney General, requesting 

preclearance. 

We hold that neither the telecopy of March 23, 1990, 

nor the letter of May 16, 1990, constitutes a material 

supplemental submission necessary to extend the sixty- 

day persiod provided to the Attorney General for inter- 

posing an objection. If the March 23 telecopy thus did 

not start the sixty-day period running anew, S.B. 1379 

was precleared by operation of law on April 16, 1990. 

Assuming arguendo that the March 23 telecopy was a 

material supplemental submission, the sixty-day period 

nevertheless expired on May 22, as the letter of May 16 

was not a material supplemental submission. 

[3] The assertion that the telecopying of two sections 

from the Texas constitution started the sixty-day period 

running anew is entirely without merit. Those constitu- 

tional sections were available as published legal materials 
in any reasonably complete law library; the DOJ does 

not argue that it had no easy access to the same. More- 

over, the sections had been precleared by the Attorney 

General several years previously. They were not at issue, 

directly or indirectly, in the submission of S.B. 1379. 

Facts are “material” if they “might affect the outcome 

. under the governing law.” Anderson v. Liberty 

   



lla 

Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 

91 L.Ed.2d 202 (1986). There is no respect in which 

the submission to the Attorney General of a copy of 

readily available provisions, of which the Attorney Gen- 

eral was well aware and which already had received the 

close scrutiny of the preclearance process, possibly could 

have “affected the outcome” of the submission of S.B. 

1379. 

Additionally, section 51.39(a) of the regulations, dis- 

cussed supra, requires that in order to re-start the sixty- 

day period, the new documents must be “materially sup- 

plementing” the initial submission. Even assuming argu- 

endo that the documents here were “material,” they can- 

not reasonably be deemed to have “supplemented” the 

submission of S.B. 1379. As we have observed, the At- 

torney General already knew of the constitutional sec- 

tions, had ready access to them, and had precleared them. 

The mere sending of copies of them to the DOJ did not 

add to, or supplement, anything. 

Finally, section 51.37(a) of the regulations, discussed 

supra, requires that any additional information needed 

by the Attorney General must be requested “by letter.” 

It is acknowledged that the sections of the Texas con- 

stitution, if requested at all, were asked for by telephone. 

In summary, then, the March 23 telecopy did not trigger 

a new sixty-day period, and S.B. 1379 was precleared 

by operation of law on April 16. 

[4] Assuming arguendo that a new sixty-day period 

began running on March 23, it expired on May 22, and 

the state’s letter of May 16 cannot be deemed a “ma- 

terially supplementing” submission. The May 16 letter 

merely called the DOJ’s attention to the pendency of the  



    

12a 

LULAC case. But that information did not “supplement” 

anything. 

As of May 16, the DOJ was participating actively as 

amicus curiae in LULAC, in which oral argument was 

presented before the Fifth Circuit panel on April 30, 

within a panel opinion issued on May 11. See LULAC, 

902 F.2d 293 (5th Cir. 1990). On May 16, the court 

entered its order granting rehearing en banc in LULAC. 

See LULAC, 902 F.2d 322, 323 (3th Cir. 1990). The 

DOJ participated in briefing and oral argument before 
the en banc court. 

Thus, the DOJ was aware of, and was a part of, every 

phase of the LULAC litigation during the time when 

S.B. 1379 was under submission. The DOJ was un- 

deniably cognizant of the fact that both LULAC and 

S.B. 1379 involved the question of at-large voting for 

district judges in Texas. A letter asking the DOJ to con- 

sider LULAC in reviewing S.B. 1379 thus certainly was 

not “material” and could not have “supplemented” any 

information or knowledge that the DOJ or the Attorney 

General already had. 

Accordingly, the mere sending of the May 16 letter 

did not trigger a new sixty-day period under section 

51.39(a). The sixty-day period, even if started anew on 

March 23, expired on May 22, and consequently, in the 

alternative, was precleared by operation of law on May 22. 

The purported withdrawal of the submission on July 2 

had no legal effect, as by operation of law the preclear- 

ance had already occurred, and the state was free to 

implement the electoral changes, if any, encompassed by 

S.B. 1379. 

 



  

13a 

Finally, as to the letter of May 16, we note that the 

Attorney General apparently never deemed the LULAC 

litigation material, in any event, for purposes of the pre- 

clearance of S.B. 1379. That is evident from the fact that, 

despite the Fifth Circuit’s en banc conclusion that section 

2 does not apply to the election of judges, the Attorney 

General, in his letter of November 5 interposing an ob- 

jection to S.B. 1379, acknowledged the LULAC en banc 

opinion but declined to follow it. Instead, the November 

5 letter declares that “use of the at-large election sytem 

[sic] with numbered posts and majority vote results in 

a clear violation of Section 2. .. .” 

Hence, for this additional reason, the LULAC litiga- 

tion, from the Attorney General's point of view, was not 

a “material” or “supplemental” submission that, under 

section 51.39(a), could have triggered a new sixty-day 

period for the interposition of objections. Therefore, S.B. 

1379 has been precleared by operation of law, and thus 

the prerequisites for an injunction under section 5 have 

not been satisfied. 

IV. 

We close by expressing our concern at the actions 

taken, and the position expressed, by the Attorney Gen- 

eral and DOJ in this matter. Texas is within the geo- 

graphical jurisdiction of the Fifth Circuit. On September 

28, 1990, in LULAC, that court, sitting en banc, de- 

clared, by a margin of 12-1, that section 2 does not 

apply to at-large, numbered-post, multi-member elections 

of district judges in Texas. By a margin of 7-6, the court 

declared that the election of judges, in general, is not 

within the ambit of section 2.  



    
  

14a 

Despite this plain ruling, the Attorney General, in his 

letter of November 5, interposed an objection to S.B. 

1379 solely on the basis of his contention that “use of 

the at-large election sytem [sic] with numbered posts and 

majority vote results in a clear violation of Section 2. 

. .” During oral argument in the instant matter, the 

DOJ has asserted that it does not consider itself bound 

by the LULAC decision, even as to electoral changes in 

the three states encompassing the Fifth Circuit. 

This position reflects a disturbing disregard for the rule 

of law. The Attorney General is not merely preserving, 

as an advocate, an issue for possible later resolution by 

the Supreme Court. Instead, he has taken official action, 

by interposing an administrative objection, that is based 

solely upon a ground definitively rejected as the law in 

the Fifth Circuit. The DOJ participated actively in the 

LULAC litigation and now, having lost, seeks to assert 

its view by ignoring the law of the circuit. 

The aim of the United States here is salutary—to effect 

the laudable goals of the Act by opposing changes that, 

in the view of the Attorney General, have the purpose 

or effect of diminishing the role of minorities in the 

electoral process. However, as the instant action is brought 

under the Act, both this court and the Attorney General 

are limited to the role assigned by Congress in passing 

the Act. 

[5] [6] The circuit court by which this district court 

is bound (absent Supreme Court directive) has declared 

that section 2 does not apply to the election of judges. 

The United States, as a litigant in this court, is bound 

by that determination. Likewise, it may not wield its 

administrative sword in this circuit in contravention of 

 



  

15a 

the interpretation of the Act enunciated by the Fifth 

Circuit (again, absent any intervening declarations by 

the Supreme Court).? 

The orderly administration and enforcement of the 

Voting Rights Act must be based upon the rule of law, 

as enacted by Congress and interpreted by the courts. 

In our dark past, minority rights were abrogated by 

defiant state officials who refused to accept the rule of 

law, as declared by the federal courts. That era, fortu- 

nately, has passed. We merely observe that the com- 

mendable objectives of the Voting Rights Act can be 

achieved, as well, only through adherence to the orderly, 

albeit sometimes time-consuming, process of court inter- 

pretation, to which the United States, like the states and 

private parties, is subject. 

V. 

In summary, no preclearance was required for S.B. 

515, and S.B. 1379 was precleared by operation of law. 
Hence, the requirements for injunctive relief under section 

5 have not been met.? We deny all relief. It is so ordered. 

JERRY E. SMITH, Circuit Judge, and WALTER SS. 

SMITH, Jr., District Judge, concur. 

2. We also observe that the result of the Attorney General’s posi- 
tion here, if allowed to prevail, is somewhat mixed. One of the chal- 
lenged judgeships involves a black female elected in 1990 in Dallas 
County; another challenge, in Tarrant County, would bring about the 
removal from the bench of an Hispanic male who has served as a 
state judge for many years. 

3. See also Hunter v. City of Monroe, Civ. Ac. No. 90-2031 
(W.D. La. Nov. 7, 1990) (three-judge court) (holding that § 5 does 
not apply to the mere addition of judgeships to an existing judicial 
structure).  



  

  

  

16a 

LUCIUS D. BUNTON, Chief District Judge, concur- 

ring in part and dissenting in part. 

I concur in the part of the majority’s opinion that finds 

the Travis County judgeships, i.e., the 200th and 201st 

District Courts are not subject to the preclearance re- 

quirements of Section 5. I dissent from the part of the 

opinion that the questioned judgeships in the other chal- 

lenged counties were precleared by operation of law. 

This is incorrect, because it is contrary to the facts that 

were presented to the Court and, further, is incorrect 

under the law for the reasons hereinafter set forth. 

This is an action pursuant to the Voting Rights Act 

of 19635, 42 US.C. 1973¢ as amended in 1982, 42 

U.S.C. Sections 1983 and 1988, and the Thirteenth, 

Fourteenth and Fifteenth Amendments to the Constitu- 

tion of the United States, challenging the failure of the 

State of Texas to preclear, pursuant to the Voting Rights 

Act, the creation of seven State District Judgeships in 

Texas. This hearing is limited to consideration of the 
Voting Rights issue. 

Section 5 of the Voting Rights Act provides that when- 

ever a political subdivision seeks to “administer any vot- 

ing qualification or prerequisite to voting, or standard, 

practice, or procedure with respect to voting different 

from that in force or effect on November 1, 1972”, it 

must obtain preclearance either from a United States 

4, 

363rd Dallas 
364th Lubbock 
371st Tarrant 
372nd Tarrant 
377th Victoria 
200th Travis 

201st Travis 

 



  

17a 

District Court in the District of Columbia or the Attorney 

General. If preclearance is sought from the Attorney 

General and he tenders no objection within sixty days, 

the submission is precleared by operation of law.” How- 

ever, if the submitting authority provides “supplementary 

information” for evaluation, the sixty day period is re- 

calculated from receipt of the supplementary information.® 

Texas, as a covered jurisdiction under this section,” must 

seek preclearance of electoral changes in accordance with 

the section’s provisions. 

Five of the seven challenged judgeships were created 

by S.B. 1379, which was passed by the Texas legislature 

in its 1989 regular session and signed by the Governor 

on June 14, 1989. Texas submitted S.B. 1379 to the 

Attorney General for preclearance on February 13, 1990. 

The Attorney General's deadline for interposing an objec- 

tion was April 16, 1990. On March 20th, Texas tele- 

copied two sections of the Texas Constitution (Sections 

7 and 7a of Article 5) to the Voting Rights Section of 

the Civil Rights Division of the Department of Justice 

(“DOJ”) following a telephone conversation with a DOJ 

employee. Upon receipt of this supplementary informa- 

tion, the Attorney General extended the objection dead- 

line to May 22, 1990. 

5. See 42 U.S.C. §1973¢. 

6. 25 CER. §51.39(a) (1990). 

7. See 28 C.F.R. Pt. 51, Appendix (1990) (Texas has been a 
“covered jurisdiction” since September 23, 1975). 

8. The 200th and 201st District Courts in Travis County were 
added by S.B. No. 515, which was signed by the Governor on June 
1, 1971, and became effective August 30, 1971. Section 1 of the bill 
created the 200th judicial district effective September 1, 1971, and 
the 201st effective January 1, 1973.  



  

| 

| 
| 

| 

| 

  

18a 

On May 16, 1990, Texas submitted a letter to the 

Attorney General requesting that its submission be con- 

sidered in accordance with the Fifth Circuit's panel deci- 

sion and anticipated en banc decision in LULAC Council 

No. 4434 v. Clements. Thus, the Attorney General ex- 

tended the objection deadline to July 16, 1990. 

After en banc arguments in LULAC, Texas withdrew 

its submission of S.B. 1379 in a letter dated July 2, 1990. 

Following the en banc decision in LULAC, Texas re- 

submitted S.B. 1379 on October 1, 1990. 

On November 5, 1990, the Attorney General inter- 

posed its objection to Texas’ voting changes promulgated 

by S.B. 1379, noting that Texas failed to meet its burden 

of establishing that the submitted changes have neither 

a discriminatory purpose nor a discriminatory effect. 

This Court must determine three main issues: Is Sec- 

tion 5 of the Voting Rights Act applicable to the contested 

judgeships? If so, did Texas properly obtain preclearance? 

Finally, if a violaton of Section 5 does exist, what is the 

appropriate remedy?’ 

Does Section 5 Apply to S.B. 1379? 

Yes. 

Since September 23, 1975, Texas has been a “covered 

iurisdiction” under Section 5 of the Voting Rights Act.*® 

9. See McCain v. LyBrand, 463 U.S, 236, 230, n. 17, 104 S. Ct. 
1037, 1046, n. 17, 79 L.Ed.2d 271, 282, n. 17 (1984) (“The only 
questions in an action alleging a violation of the § 5 preclearance 
requirement are (1) whether a change is covered by § 5, (2) if the 
change is covered, whether § 5’s approval requirements have been 
satisfied, and (3) if the requirements have not been satisfied, what 
relief is appropriate.”’); Lockhart v. United States, 460 U.S. 125, 
129, n. 3, 103 S. Ct. 998, 1001, n. 3, 74 L.Ed.2d 863 (1983). 

10. 28 C.F.R. Pt. 51, Appendix (1990). 

 



  

19a 

The Act requires preclearance when a State seeks to 

administer any “voting qualification or prerequisite to 

voting, or standard, practice, or procedure with respect 

to voting . . .”."' Notably, this section applies itself to 
all “voting”, and imposes no limitation on who or what 

is the subject of the voting. In fact, the Supreme Court 

summarily affirmed two cases which found that judicial 

elections are submit to the requirements of Section 5. 

Although Texas argues “that Section 5 does not apply 

to the changes that are the subject of the plaintiffs’ chal- 

lenge because judicial elections in general are not covered 

by Section 5”,* it goes on to add, “Texas understands 

that this Court is bound by the Supreme Court’s sum- 

mary affirmances in two cases in which these legal argu- 

ments were rejected.”’* Thus, Texas does not dispute the 
applicability of Section 5 in this instance; it merely argues 

S.B. 1379 has met the preclearance requirements con- 

tained in the section. 

Did Texas properly obtain preclearance of S.B. 1379 

pursuant to Section 5? 

No. 

11. See 42 U.S.C. § 1973(c). 

12. Brooks v. State Board of Elections, No. CV 288-146, 1988 
WL 180759 (S.D. Ga. Dec. 1, 1989), modified (May 29 and June 25, 
1990), aff’d mems., U.S. “3118. Ct. 232 112 L.Ed 2d 243, 

U.S. , 111 S.Ct. 225, 112 L.Ed.2d 243 (1990); Haith v. 
Martin, 618 F.Supp. 410 (E.D.N.C. 1985), aff’d mem., 477 U.S. 901, 
106 S. Ct. 3268, 91 L.Ed.2d 559 (1986) (“We hold the fact that an 
election law deals with the election of members of the judiciary does 
not remove it from the ambit of section 5.”) 

  

  

13. Texas’s Response to Plaintiffs’ Motion to Enjoin Elections for 
Certain Unprecleared Judgeships, p. 13. 

14. Id.  



  

  

  

20a 

Under Section 5, Texas could pursue either of two options 

in obtaining preclearance of voting changes: Submit its 

preclearance request to a District Court in the District 

of Columbia, or submit them to the Attorney General. 

Texas opted for the latter, and submitted S.B. 1379 for 

preclearance February 13, 1990. Accordingly, the At- 

torney General had sixty days, or until April 16, 1990, 

to interpose an objection. 

Within this period (on March 20th), Texas telecopied 

two sections of the Texas Constitution (Sections 7 and 7a 

of Article 5) to the Voting Rights Section of the Civil 

Rights Division of the Department of Justice. According 

to 28 C.F.R. § 51.39, submission of “supplementary in- 

formation” extends the deadline. Thus, the new deadline 

became May 22, 1990." 

Within this new period (on May 16th), Texas sub- 

mitted supplementary information to the Attorney Gen- 

eral in the form of a letter requesting that its preclearance 

request be considered in accordance with LULAC.'® This 
resulted in extension of the objection deadline to July 16, 

1990." 

15. On April 16, 1990, Texas received the Attorney Generals 
letter notifying Texas that “supplemental information was received on 
March 23 and 28, 1990.” Thus, the deadline was extended to May 
22, 1990. 

16. On April 16, 1990, Texas received notification from the At- 
torney General that Texas’ submission of supplemental information 
extended the objection deadline. Thus, when Texas chose to submit 
its second letter, it was fully aware that submission of supplemental 
maerials would result in an extension of the existing deadline. Even 
so, Texas chose to submit the letter. 

17. In a letter dated May 18, 1990, the Attorney General notified 
Texas of the new July 16, 1990 deadline, stating “[w]e received 
additional supplemental information regarding this submission on May 
15 and 16, 1990.” : 

 



  

21a 

Prior to the July 16th deadline, Texas withdrew its 

submission of S.B. 1379 in a letter dated July 2, 1990. 

To explain this action, Texas states, “[p]lrior to this with- 

drawal, the 60th day for your response to this submission 

was July 16, 1990.” Texas offers as its reason for with- 

drawal that “[i]t is thus not certain whether the court 

will issue its opinion (in LULAC) prior to July 16, 

1990.” Additionally, since a jurisdiction is only permitted 

to withdraw a submission prior to a final decision by the 

Attorney General,'® Texas’ actions in requesting and ac- 

cepting withdrawal affirms its understanding that pre- 

clearance had not yet been achieved. Thus, Texas clearly 

acknowledges both that its preclearance request has not 

been decided by the Attorney General, and that its sub- 

mission of “supplementary materials” extended the ob- 

jection deadline to July 16, 1990. With this, Texas’ first 

attempt at preclearance ended without a decision by the 

Attorney General. 

On October 1, 1990, Texas sent a letter to the At- 

torney General resubmitting'® its application for preclear- 

ance of S.B. 1379. The language in the letter very clearly 

states this is a resubmission of Texas’ preclearance re- 

quest, thus beginning another sixty day objection dead- 

line. 

On November 5, 1990, which was well within the time 

frame for submission of objections, the Attorney General 

18. 28 C.F.R. § 51.25(a) (1990). 
19. The specific wording in the letter is “This letter is to advise 

you that the State of Texas is hereby resubmitting its submission of 
Chapter 632, Senate Bill 1379, 71st Legislature, 1989.” The Court 
sees no ambiguity in the language which would cause Texas to believe 
it was doing anything other than resubmitting its preclearance re- 
quest, thus beginning another sixty day objecting period. 

20. See 28 C.F.R. § 51.39 (1990). 

 



  

  
  

22a 

issued its opinion denying preclearance of S.B. 1379. 

Texas made no further attempts to obtain preclearance. 

Accordingly, it is clear that S.B. 1379 simply has not 

been precleared pursuant to Section 5 of the Voting 

Rights Act. 

What Remedy is Appropriate to Achieve Section 5 

Compliance for S.B. 1379? 

Preclearance. 

To achieve compliance with Section 5, Texas must 

obtain preclearance of S.B. 1379. “By the very terms of 

the statute, covered changes in election laws may not be 

put into effect until they have either been precleared by 

the Attorney General or approved by the United States 

District Court for the District of Columbia. Indeed, they 

are not ‘effective as laws until and unless [they are] cleared 

pursuant to § 5.” ”** Since the Attorney General refuses 
preclearance, the only remaining option lies with the 

United States District Court for the District of Columbia. 

In my opinion, since Section 5 compliance is lacking, 

Texas must “institute an action in the United States 

District Court for the District of Columbia for a declara- 

tory judgment that such qualification, prerequisite, stand- 

ard, practice, or procedure does not have the purpose 

and will not have the effect of denying or abridging the 

right to vote on account of race or color. . . .”** In the 

interests of justice, preclearance must be sought within 

sixty days. 

This leaves open the status of the unprecleared judge- 

ships during the pendency of this process. The United 

21. Haith, supra note 7, at 414. 

22. See:42 US.C, §1973c, 

 



  

23a 

States Supreme Court considered this situation in Berry 

v. Doles, 438 U.S. 190, 98 S. Ct. 2692, 57 L.Ed.2d 693 

(1978). In that case, the three-judge panel found non- 

compliance with Section 5, enjoined further enforcement 

of the relevant statute, and ordered the State of Georgia 

to seek approval under Section 5 within thirty days. Id. 

at 192, 193, 98 S. Ct. at 2693, 2694. The Court stated, 

“If approval is obtained, the matter will be at an end.” 

Id. at 193, 98 S. Ct. at 2694. 1 agree that in the interim 

of the preclearance process, the judges presiding in the 

363rd, 364th, and 377th District Courts should continue 

in the operation of their courts, with full power and 

authority.* Since the newly elected judges to the 371st 
and 372nd District Courts have not yet taken the oath 

and initiated proceedings in those Courts, the unprecleared 

judgeships in Districts 371 and 372 should remain vacant 

until preclearance is obtained. No affirmative action to 

certify unprecleared judgeships is appropriate. 

In rendering this opinion, I note that I in no way wish 

to hinder the Legislature’s efforts to create additional 

State District Courts. In fact, I recognize the imperative 

need for the judgeships created by S.B. 1379. I merely 

ask, as I must under the law, compliance with Section 5 

of the Voting Rights Act. 

I write also to commend the Department of Justice 

and the Attorney General. I do not believe for a minute 

that intervening in the LULAC case before the Fifth 

Circuit constituted any sort of a waiver on the part of 

23. 1 commend the judges who preside over these Courts for their 
efforts in reducing the total caseload in their respective areas. I am 
fully aware that the existence of these Courts is certainly in the best 
interest of the public, and I in no way wish to impede the progress 
of State District Judges.  



    
  

24a 

the United States to continue to seek vigorous enforce- 

ment of the Voting Rights Act. The Attorney General 

is not ignoring the en banc decision. He is attempting 

to comply with the law as the Sixth Circuit has decreed 

and as he perceives the Voting Rights Act should be 

interpreted. Certainly, the Department of Justice has more 

things to do than monitor each Constitutional provision 

of the fifty states of the United States, each statute passed 

by those states, and the opinions of each district court 

and circuit court. All submissions in the case before this 

Court were relevant and material and, certainly, the 

State of Texas believed not only that preclearance had 

to be sought but that preclearance had not been obtained. 

It is inconceivable to me that the State of Texas would 

withdraw the submission if they thought as a matter of 

law or fact that the judgeships had been precleared. 

It is just as inconceivable to believe that the State would 

make a resubmission in October of 1990 if it felt that 

the matter had been precleared many months before. 

In my opinion, my two judicial bothers who sat with 

me on this panel are patently wrong. 

At the risk of making this opinion too long, I cannot 

help but believe that the en banc decision in LULAC 

was incorrect. As a District Judge in the Fifth Circuit, 

I am bound by the en banc opinion, and will abide by it 

until such time as the Supreme Court reverses the opinion 

or the Congress makes changes in the Voting Rights Act. 

The majority opinion here seeks to salve its conscience 

by pointing out that two of the judges of the courts in- 

volved are minorities. Just because one of the judges is 

a black female and another a Hispanic male does not 

make the opinion correct. I have no quarrel with either 

 



  

25a 

of these individuals, and am sure they are both highly 
qualified and competent judges. The fact remains, how- 

ever, that the Voting Rights Act does not speak to those 

holding the office, but rather speaks to the rights of voters. 

The voters in the respective districts of these two judges 

are, in my opinion, having their rights under the Act 

violated. 

Shakespeare, in Sonnet 35 reflects my feelings about the 

current state of the law in the Fifth Circuit when it comes 

to the Voting Rights Act. He said: 

Roses have thorns, and silver fountains mud; 

Clouds and eclipses stain both moon and sun, 
And loathsome canker lives in sweetest bud. 

All men make faults. 

The opinion in LULAC is indeed a thorn in the flesh 

of voters. The silver fountain of Voting Rights does 

indeed contain mud. This stains both moon and sun and 

is indeed a sore on one of the sweetest rights guaranteed 

by our Constitution. In the opinion of this writer, the 

LULAC en banc decision is reminiscent of the infamous 

Dred Scott decision,” which deprived many people of 
their rights and led to our most unfortunate historic 

conflict 

I would hope that the Supreme Court of the United 

States will recognize this as a most important field of the 

law that needs their interpretation. It is hard to believe 

24. In Dred Scott v. Sandford, 19 How. 393, 394, 15 L.Ed. 691 
(1857) the Supreme Court stated, “The plaintiff having admitted, 
by his demurrer to the plea in abatement, that his ancestors were 
imported from Africa and sold as salves, he is not a citizen of the 
state of Missouri according to the Constitution of the United States, 
and was not entitled to sue in that character in the Circuit Court.”  



  

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26a 

that the voters in Mississippi, Louisiana, and Texas are 

afforded less rights than voters in the States that are 

in the Sixth Circuit, i.e., Kentucky, Michigan, Ohio, and 

Tennessee. 

If the Supreme Court does not soon give us guidance, 

some citizens are going to be deprived of their Constitu- 

tional and statutory voting rights. 

I DISSENT.