League of United Latin American Citizens (LULAC), Council No 4434 v. Clements Brief in Opposition to Petition for Certiorari

    No. 93-630

In The

Supreme Court of the United States
October Term, 1993

-----------------♦-----------------

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, 
COUNCIL NO. 4434, et a l,

Petitioners,
v .

WILLIAM P. CLEMENTS, GOVERNOR OF THE 
STATE OF TEXAS, ET AL.,

Respondents.
♦

On Petition for Writ Of Certiorari 
To The United States Court of Appeals 

For The Fifth Circuit
-----------------♦ -----------------

RESPONDENT-INTERVENOR HARRIS COUNTY 
DISTRICT JUDGE SHAROLYN WOOD'S 

BRIEF IN OPPOSITION TO 
PETITION FOR CERTIORARI

-----------------♦-----------------

J. E u g en e  C lem en ts 
C lem en ts, O 'N eill  &  P ierce , L.L.P 
1000 Louisiana, Suite 1800 
Houston, Texas 77002 
Telephone: (713) 654-7600 
Facsimile: (713) 654-7690
Attorney of Record for 
Respondent Harris County 
District fudge Sharolyn 
Wood

OF COUNSEL:
E velyn  V. K ey es
C lem en ts , O 'N eill  &  P ier c e , L.L.P 
1000 Louisiana, Suite 1800 
Houston, Texas 77002 
Telephone: (713) 654-7600 
Facsimile: (713) 654-7690

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 
OR CALL COLLECT (402) 342-2831



1

1. Does the Fifth Circuit's en banc decision below 
correctly follow the instruction of this Court on remand 
that it evaluate the State of Texas' interest in linking the 
jurisdiction and elective base of district judges to deter­
mine whether vote dilution may be proved or remedied 
under the totality of the circumstances?

2. Should the Court grant certiorari to resolve a 
conflict between the en banc Fifth Circuit ruling in this 
case and a subsequent panel decision of the Eleventh 
Circuit in Nipper v. Smith, 1 F.3d 1171 (1993), which con­
flicts internally with decisions in its own Circuit and with 
Thornburg v. Gingles, 478 U.S. 30 (1986)?

3-4. Given the Fifth Circuit's holding that Texas' 
state district judge election system does not violate § 2 of 
the Voting Rights Act, should the Court grant certiorari to 
review the Court's refusal to accede to the Plaintiffs' and 
Texas Attorney General Morales' demand that, instead of 
ruling on the merits, the Fifth Circuit should have 
remanded this case to the district court to implement 
their "settlement," which would have replaced Texas' 
constitutionally required judicial election system with the 
Plaintiffs' subdistricting plan without a finding of viola­
tion of federal law?

QUESTIONS PRESENTED



11

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 

A1 Price

Theodore M. Hogrobrooks 

Ernest M. Deckard 

Judge Mary Ellen Hicks 

Rev. James Thomas

Plaintiff-Intervenors:
Houston Lawyers' Association 

Alice Bonner

LIST OF PARTIES



Weldon Berry 

Francis Williams 

Rev. William Lawson 

DeLoyd T. Parker 

Bennie McGinty 

Jesse Oliver 

Fred Tinsley 

Joan Winn White

Defendants:
Dan Morales, Attorney General of Texas 

John Hannah, Secretary of State of Texas 

Texas Judicial Districts Board

Thomas R. Phillips, Chief Justice, Texas Supreme 
Court

Mike J. McCormick, Presiding Judge, Court of Crimi­
nal Appeals

Pat McDowell, Presiding Judge, 1st Administrative 
Judicial Region

Thomas J. Stovall, Jr., Presiding Judge, 2nd Adminis­
trative Judicial Region

B. B. Schraub, Presiding Judge, 3rd Administrative 
Judicial Region

Olin Strauss, Presiding Judge, 4th Administrative 
Judicial Region

iii

LIST OF PARTIES -  Continued



IV

Darrell Hester, Presiding Judge, 5th Administrative 
Judicial Region

William E. Moody, Presiding Judge, 6th Administra­
tive Judicial Region

Weldon Kirk, Presiding Judge, 7th Administrative 
Judicial Region

Clyde R. Ashworth, Presiding Judge, 8th Administra­
tive Judicial Region

Ray D. Anderson, Presiding Judge, 9th Administra­
tive Judicial Region

Joe Spurlock II, President, Texas Judicial Council 

Leonard E. Davis

Defendant-lntervenors

Judge Sharolyn Wood 

Judge Harold Entz

LIST OF PARTIES -  Continued



V

QUESTIONS PRESENTED..............................................  i

LIST OF PARTIES.............................................................. ii

TABLE OF AUTHORITIES..............................................  vi

OPINIONS AND JUDGMENT BELOW...................  2

JURISDICTION................................................................ 2

CONSTITUTIONAL PROVISIONS AND STAT­
UTES INVOLVED..........................................................  2

STATEMENT OF THE CASE....................................... 2

The Proceedings Below............................................  2

Statement of Facts......................................................  6

REASONS FOR DENYING THE W RIT.....................  8

I. THE FIFTH CIRCUIT'S EN BANC DECISION
CORRECTLY FOLLOWS THE MANDATE OF 
THIS COURT IN HLA V. ATTORNEY GEN­
ERAL OF TEXAS AND APPLICABLE PRECE­
DENT......................................................................... 8

II. THERE IS NO LEGALLY SIGNIFICANT
CONFLICT BETWEEN THE CIRCUITS............  13

III. THE FIFTH CIRCUIT CORRECTLY HELD 
THAT REMAND FOR CONSIDERATION OF 
PLA IN TIFFS' SETTLEMENT WAS NOT 
APPROPRIATE.......................................................  15

TABLE OF CONTENTS
Page

CONCLUSION 18



VI

F ed era l  C a ses

Baker v. Wade, 769 F.2d 289 (5th Cir. 1985).................  16

Gregory v. Ashcroft, __  U.S. ___, 111 S. Ct. 2395
(1991).............................................................................. 11, 12

Hall v. Holder, 955 F.2d 1563 (11th Cir. 1992).............. 14

Houston Lawyers' Association ("HLA") v. Attorney
General of Texas, __  U.S. ___, 111 S. Ct. 2379
(1991)........................................................................................2

Houston Lawyers' Association v. Attorney General,
501 U.S. _ ,  111 S. Ct. 2376 (1991) . . . .  3, 8, 9, 10, 11

Local No. 93, Int'l Ass'n of Firefighters v. City of
Cleveland, 478 U.S. 501 (1986)........................................ 17

Nipper v. Smith, 1 F.3d 1171 (1993)...................  13, 14, 15

Solomon v. Liberty County, 899 F.2d 1012 (11th Cir.
1990).......................................................................................  14

Thornburg v. Gingles, 478 U.S. 30 (1986).. .10, 11, 13, 14, 15

United States v. City of Miami, 664 F.2d 435 (5th Cir.
1981)........................................................................................17

United States v. Swift & Co., 286 U.S. 106 (1932)........ 17

Whitcomb v. Chavis, 403 U.S. 755 (1971).......................... 10

White v. Regester, 412 U.S. 755 (1973).............................  10

Zimmer v. McKeithen, 485 F.2d 1297 (CA5 1973), 
aff'd sub nom. East Carroll Parish School Bd. v. 
Marshall, 424 U.S. 636, 96 S. Ct. 1083, 47 L. Ed.
2d 296 (1976).................................................................. 9, 10

TABLE OF AUTHORITIES
Page



S tate C a ses

Public Utility Commission of Texas v. Cofer, 754
S.W.2d 232 (Tex. 1988)....................................................  17

Terrazas v. Ramirez, 829 S.W.2d 712 (Tex. 1991)............17

F ed era l  S tatutes

§ 2 of the Voting Rights Act, 42 U.S.C. § 1973 . . 1, 2, 8, 9

S. Rep. 97-417, reprinted in 1982 U.S. Cong. &
Admin. News, 192............................................................10

Tex. Const. §§ 7 and 7(a)(i) of 1876.................................2

U.S. Const., amends. X, XIV and X V ...............................2

vii

TABLE OF AUTHORITIES -  Continued
Page



No. 93-630
----------4 -----------

In The

Supreme Court of the United States
October Term, 1993

---------------4---------------

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, 
COUNCIL NO. 4434, et at,

Petitioners,
v.

WILLIAM P. CLEMENTS, GOVERNOR OF THE 
STATE OF TEXAS, ET AL.,

Respondents.
-----------------4-----------------

On Petition for Writ Of Certiorari 
To The United States Court of Appeals 

For The Fifth Circuit
------------------------4 ------------------------

RESPONDENT-INTERVENOR HARRIS COUNTY 
DISTRICT JUDGE SHAROLYN WOOD'S 

BRIEF IN OPPOSITION TO 
PETITION FOR CERTIORARI

-----------------4-----------------

Respondent/Intervenor Harris County District Judge 
Sharolyn Wood ("Judge Wood") respectfully opposes the 
Petition for Writ of Certiorari filed in this case because 
the Fifth Circuit Court of Appeals correctly followed 
controlling law in holding, en banc, that Texas' county­
wide system for electing state district judges does not 
violate § 2 of the Voting Rights Act.

------------------------4 ------------------------

1



2

OPINIONS AND JUDGMENT BELOW

This case was decided below on remand from this 
Court of Houston Lawyers' Association ("HLA") v. Attorney
General of Texas,__ U .S .___ , 111 S. Ct. 2379 (1991). Judge
Wood incorporates by reference Petitioner League of 
United Latin American Citizens ("LULAC") et al.'s (col­
lectively "Plaintiffs'") statement of opinions and judg­
ments below.

-----------------♦-----------------

JURISDICTION

Judge Wood incorporates by reference LULAC's 
statement of jurisdiction.

-----------------♦-----------------

CONSTITUTIONAL PROVISIONS 
AND STATUTES INVOLVED

This case involves § 2 of the Voting Rights Act, 42 
U.S.C. § 1973, set out at Pet. 2-3; U.S. Const., amends. X, 
XIV and XV; and §§ 7 and 7(a)(i) of the Texas Const, of 
1876, set forth in Appendix B, attached to Judge Wood's 
Cross-Petition for Writ of Certiorari ("App. B") at 3b-5b.

-----------------♦-----------------

STATEMENT OF THE CASE 
The Proceedings Below

This case is accurately stated in the Fifth Circuit's en 
banc opinion, App. la-9a. Judge Wood adopts that state­
ment with the addendum that, while this Court reversed 
the prior en banc majority opinion of the Fifth Circuit



3

which had held that § 2 does not apply to judicial elec­
tions, HLA v. Attorney General, 111 S. Ct. 2379, the Court 
also recognized that Texas has a special interest in linking 
the electoral and jurisdictional bases of state district 
judges, a view which had been advanced in a concurring 
opinion of the Court of Appeals written by Judge Higgin­
botham. I l l  S. Ct. at 2379. This Court disagreed that a 
strong state interest in linking jurisdiction and electoral 
base necessarily precludes a § 2 challenge, but held that 
the weight of the state's interest must be evaluated as 
part of the totality of the circumstances. I l l  S. Ct. at 
2380-81. It remanded this case to the Fifth Circuit with 
specific instructions to evaluate the concerns expressed 
by Judge Higginbotham to determine whether vote dilu­
tion "may be found or remedied" under the totality of the 
circumstances. I l l  S. Ct. at 2380-81.

The case was rebriefed and heard by the original 
three-judge panel. Fifteen months later, a two-judge 
majority of that panel affirmed the trial court's finding of 
illegal vote dilution in eight of the nine target counties 
over the vigorous dissent of Judge Higginbotham. Within 
a matter of days, the Fifth Circuit vacated the panel 
majority opinion sua sponte and ordered en banc review.

When the panel opinion was vacated, Attorney Gen­
eral Morales (a named Defendant and counsel for the 
State of Texas) and the Plaintiffs launched a massive 
media and legislative campaign in which Attorney Gen­
eral Morales claimed that his duty required him to 
"defend" the Voting Rights Act against Texas law and to 
replace Texas' county-wide judicial election system with 
the Plaintiffs' plan -  a plan that would have subdivided 
Texas judicial districts and assigned state district judges



4

to state legislative districts in violation of the Texas Con­
stitution and an entire body of Texas statutory law.1 See 
App. at 7a~8a.

Attorney General Morales and the Plaintiffs filed 
their plan as a "resolution" in the Texas legislature, with 
the avowed intention of mooting this lawsuit, falsely 
representing in the preamble that subdistricting was nec­
essary to bring Texas law into compliance with federal 
law. App. at 7a-8a. The "resolution" failed to receive 
approval of the Texas legislature. App. at 7a-8a. Attorney 
General Morales and the Plaintiffs also presented their 
"settlement" to non-party Texas Democratic officials for 
signature, but withheld it from the named state officials 
and Defendant-Intervenors, Judges Wood and Entz, who 
were parties to the suit. App. at 7a-8a. They then filed 
their plan as a "settlement" in the Fifth Circuit Court of 
Appeals, seeking remand to the district court for imple­
mentation instead of determination of the merits of the 
Plaintiffs' § 2 claims.

1 As originally promulgated, the plan would have assigned 
two judges to every Democratic legislator and one to every 
Republican legislator in Harris County. The Plaintiffs and Attor­
ney General Morales subsequently changed their plan so that 
one judge would be assigned to each legislator and the left-over 
judges -  intentionally including Judges Wood and Entz -  would 
run at large. See App. at 8a. They avowed that in this way they 
could deprive Judges Wood and Entz of standing to challenge 
their "settlement" since they would still be elected at large. 
App. at 8a; Pet. at 24 n.16. The Fifth Circuit rejected this claim 
and held that Judges Wood and Entz were not deprived of 
standing to pursue the defense of this case. App. at 18a n.12, 
19a, 21a.



5

The Defendant-Intervenors moved to realign Attor­
ney General Morales with the Plaintiffs and to allow the 
Defendant-Intervenors to assume the State's defense of 
the case. App. at 8a-9a. Judge Wood also moved to dis­
qualify Morales as counsel for the State on a number of 
federal and state constitutional grounds and state statu­
tory grounds. App. at 9a. Judges Wood and Entz were 
supported by three former Chief Justices of the Texas 
Supreme Court (both Democrat and Republican) as amici. 
App. at 8a. Sitting Chief Justice Phillips of the Texas 
Supreme Court, a named Defendant, sought and was 
granted independent representation on the ground that 
the Texas Attorney General refused to represent him. 
App. at 9a. He opposed the "settlement." Attorney Gen­
eral Morales moved to disqualify the Chief Justice's coun­
sel, a motion which the Fifth Circuit denied. App. at 9a.

On August 23, 1993, following oral argument which 
concentrated on both the merits of the Plaintiffs' § 2 claim 
and the authority of the Texas Attorney General to 
change state laws of general application by way of "set­
tlement" without a proven violation of law and in viola­
tion of many federal and state constitutional and 
statutory laws, the en banc Court, in a 9 to 4 opinion, held 
that Texas' county-wide judicial election system did not 
violate § 2 in any of the target counties. App. at 86a. The 
Court held, "one thread runs throughout the Plaintiffs' 
case in all of the counties -  an insubstantiality of proof that 
the minority preferred candidate lost on account of race." 
App. at 87a (emphasis added).

The en banc Court denied the Plaintiffs' and Texas 
Attorney General's request to remand for implementation 
of their "settlement." App. at 21a-28a. It also denied



6

Attorney General Morales' motion to disqualify Chief 
Justice Phillips' counsel and the Plaintiffs' post-hearing 
motion to nonsuit the non-compliant Texas officials. App. 
at 17a. It denied Judges Wood's and Entz's motions to 
realign but reserved the right to reconsider "if the Attor­
ney General changes his views on the merits of the case." 
App. at 17a.2 It denied Judge Wood's motion to disqual­
ify. App. at 18a. Judge Wood has filed a cross-petition for 
writ of certiorari on the Fifth Circuit's denial of her 
motions to realign and disqualify.

Statement of Facts

Judge Wood adopts LULAC's statement of facts with 
the following additions and clarifications:

First, while including statistical tables purporting to 
show a proportional short-fall of minority judges from 
total minority population in the target counties, the Plain­
tiffs omit from their statement of facts unchallenged evi­
dence that the percentage of minority judges exceeds the 
eligible constitutionally qualified judicial applicant pool 
(e.g., 3.8% of all attorneys in Harris County were black at 
the time of trial versus 5.1% of all Harris County district 
judges, App. at 318a).

Second, and more importantly, the Plaintiffs misstate 
the degree of interest the State of Texas takes in ensuring

2 Attorney General Morales had filed briefs prior to the 
three-judge panel hearing on remand supporting the State's 
"compelling interest" in its county-wide judicial election system 
as a "fundamental right," see App. at 76a, a position he later 
publicly disavowed.



7

that its state district judges are elected by -  and account­
able to -  all of the people over whom they have primary 
jurisdiction. The Plaintiffs allege that Texas district courts 
are created by statute. Pet. at 9. Specific district courts are 
indeed created by statute, but Texas' county-wide judicial 
election system is prescribed by Article 5 § 7 of the Texas 
Constitution, and the manner of creating new district 
courts is prescribed by Article 5 § 7a. App. B at 4b-5b. 
Plaintiffs then assert that state district court jurisdiction is 
statewide. Pet. at 10. This statement is incorrect and 
misleading. The en banc Court explored in detail the 
errors in the Plaintiffs' claims that Texas does not really 
insist on linking jurisdiction and electoral district. App. at 
79a-83a.

Essentially, Texas has numerous constitutional and 
statutory safeguards which ensure that judges exercise 
primary jurisdiction only within the county from which 
they are elected and that only the judges elected by all of 
the citizens of that county have such jurisdiction. App. at 
4a-5a, 70a, 76a-83a. In its en banc opinion, the Fifth Circuit 
pointed out that "[b]y making coterminous the electoral 
and jurisdictional bases of trial courts, Texas advances the 
effectiveness of its courts by balancing the virtues of 
accountability with the need for independence," and it 
"attempts to maintain the fact and appearance of judicial 
fairness that are central to the judicial task, in part, by 
insuring that judges remain accountable to the range of 
people within their jurisdiction." App. at 70a. Thus to 
state (as the Plaintiffs do) that district courts are "statu­
tory" and that their jurisdiction is "statewide" serves to 
denigrate and distort the fundamental structure, purpose,



8

importance and history of Texas' county-wide district 
judge election system.

-----------------♦ -----------------

REASONS FOR DENYING THE WRIT
I.

THE FIFTH CIRCUIT'S EN BANC DECISION COR­
RECTLY FOLLOWS THE MANDATE OF THIS COURT 
IN HLA V. ATTORNEY GENERAL OF TEXAS AND 
APPLICABLE PRECEDENT.

The Fifth Circuit's en banc decision on remand fol­
lowed exactly the instructions of this Court. In HLA v. 
Attorney General of Texas, this Court, while reversing the 
en banc majority holding that state district judges are not 
"representatives" within the meaning of § 2, specifically 
addressed the concurrence, stating,

In a separate opinion, portions of which 
were joined by five other judges, Judge Higgin­
botham expressed his disagreement with the 
majority's conclusion that judges are not "repre­
sentatives" within the meaning of the [Voting 
Rights] Act, but concurred in the judgment of 
reversal. His opinion relied on a distinction 
between state appellate judges and trial 
judges. . . . [T]he Texas trial judge has jurisdic­
tion that is coextensive with the geographic area 
from which he or she is elected and has the sole 
authority to render final decisions. Judge Hig­
ginbotham's opinion characterized trial judges 
"as single-office holders instead of members of a 
multi-member body," 914 F.2d, at 649 (concur­
ring opinion), because each exercises his or her 
authority independently of the other judges



9

serving in the same area or on the same court. 
Given the State's "compelling interest in linking 
jurisdiction and elective base for judges acting 
alone," Id., at 651, and the risk that "attempting 
to break the linkage of jurisdiction and elective 
base . . . may well lessen minority influence 
instead of increase it," Id., at 649, by making 
only a few district court judges principally 
accountable to the minority electorate rather 
than making all of the district's judges partly 
accountable to minority voters, he concluded 
that elections for single-member offices, includ­
ing elections for Texas district court judgeships, 
are exempt from vote dilution challenges under 
§ 2 .

HLA v. Attorney General, 111 S. Ct. at 2379.

The Court remanded this case to the Fifth Circuit 
with instructions to evaluate the concerns expressed by 
Judge Higginbotham under the totality of the circum­
stances, stating,

[W]e believe that the State's interest in main­
taining an electoral system -  in this case, Texas' 
interest in maintaining the link between a dis­
trict judge's jurisdiction and the area of resi­
dency of his or her voters -  is a legitimate factor 
to be considered by courts among the "totality 
of circumstances" in determining whether a § 2 
violation has occurred. A State's justification for 
its electoral system is a proper factor for the 
courts to assess in a racial vote dilution inquiry, 
and the Fifth Circuit has expressly approved the 
use of this particular factor in the balance of 
considerations. See Zimmer v. McKeithen, 485 
F.2d 1297, 1305 (CA5 1973), aff'd sub nom. East



10

Carroll Parish School Bd. v. Marshall, 424 U.S. 636,
96 S. Ct. 1083 47 L. Ed. 2d 296 (1976).

Houston Lawyers’, 111 S. Ct. at 2380-81.3

The en banc Court did exactly as this Court 
instructed. In a 147 page opinion, the Court first 
addressed the Plaintiffs' and Attorney General Morales' 
attempt to "settle" this case -  a critical issue which arose 
on remand calling into serious question the efficacy of the 
defense of this case. App. at 9a-32a. Second, the Court 
addressed the standard of proof of racial bloc voting as 
established by Whitcomb v. Chavis, 403 U.S. 755 (1971) and 
White v. Regester, 412 U.S. 755 (1973), the cases from 
which the results test is derived,4 the 1982 amendments 
to the Voting Rights Act, and Thornburg v. Gingles, 478 
U.S. 30. App. at 28a-58a. Third, the Court addressed other 
legal errors affecting the trial court's vote dilution 
inquiry. App. at 59a-68a. Fourth, the Court addressed 
Texas' interest in linking jurisdiction and electoral dis­
trict, in relation to the "totality of the circumstances," the

3 The passage from Zimmer referenced by the Court states, 
Where it is apparent that a minority is afforded the 
opportunity to participate in the slating of candidates
to represent its area, that the representatives slated 
and elected provide representation responsive to 
minority's needs, and that the use of a multi-member 
districting scheme is rooted in a strong state policy 
divorced from the maintenance of racial discrimination, 
Whitcomb v. Chavis, 403 U.S. 755 (1971), would require 
a holding of no dilution.
Zimmer, 485 F.2d at 1305 (emphasis added).

4 See S. Rep. 97-417, reprinted in 1982 U.S. Cong. & Admin. 
News, 192.



11

specific issue this Court asked it to address. App. at 
69a-86a. Finally, it addressed the evidence regarding each 
target county, finding insubstantial proof of vote dilution 
in each. App. at 86a-120a.

The Plaintiffs' claim that the Fifth Circuit's en banc 
opinion "refused to apply Gingles to this case" and 
refused to follow this Court's instructions on remand is 
simply not true. See Pet. at 15. The Fifth Circuit's task, as 
it saw it, was to correct "[significant legal errors" in the 
trial court's judgment "including its refusal to consider 
the effect of partisan voting, its finding of liability in 
Travis County now undefended, its selective aggregation 
of language and ethnic minorities, its refusal to accord 
weight to the State's linkage interest in the totality of the 
circumstances, and finally, its heavy reliance upon histor­
ical societal discrimination without bringing this history 
home to this case." App. at 25a. The Court concluded, 
"We cannot escape this error-correcting task -  and when 
it is done, there is no case." Id.

Citing to this Court's instruction to determine on 
remand whether the weight of Texas' interests in linking 
jurisdiction and electoral district "outweigh proof of 
racial vote dilution," App. at 75a (quoting 111 S. Ct. at 
2381), the en banc Court concluded that the weight of
Texas' interest was assigned by Gregory v. Ashcroft, __
U .S .___, 111 S. Ct. 2395 (1991), decided the same day as
HLA v. Attorney General. App. at 91a. Specifically, since 
"the authority of the people to determine the qualifica­
tions of their most important government officials . . . lies 
at the heart of representative government..[,] the States' 
power to define the qualifications of their office-holders



12

has force even as against the proscriptions of the Four­
teenth Amendment." App. at 76a (quoting Gregory, 111 S. 
Ct. at 2402, 2405). Thus Gregory requires a clear statement 
from Congress to permit a federal statute to override State 
qualifications for important State offices. App. at 76a.

Following Gregory, the Fifth Circuit held that Texans 
"have at least a substantial interest in defining the struc­
ture and qualifications of their judiciary," and that 
"[ljinking electoral and jurisdictional bases is a key com­
ponent of the effort to define the office of district judge." 
App. at 76a. The Court further held that there was no 
evidence that the linkage between jurisdiction and the 
electoral base of Texas district judges was "created and 
consistently maintained to stifle minority votes" and that 
breaking that linkage "would perversely lessen minority 
influence on the conduct of most litigation," App. at 78a. 
Having held that Texas' interest in its county-wide judi­
cial election system was substantial, the Court further 
held that "plaintiffs cannot overcome a substantial state 
interest by proving insubstantial dilution." App. at 86a. 
The Court then examined each target county in turn and 
held that the evidence of vote dilution was "insubstan­
tial" in each and, therefore, "under controlling law, the 
evidence will not support the findings of liability." Id.

The Plaintiffs' contention that the Fifth Circuit should 
have reviewed the judgment of the trial court on a 
"clearly erroneous" basis but that, instead, it "ignored the 
findings of the district court" and "made its own factual 
findings with regard to the State's interest and declared 
that these were matters of law to be determined de novo 
by the appellate court," Pet. at 18, entirely misses the 
point and fails to show any reason why certiorari should 
be granted.



13

II.
THERE IS NO LEGALLY SIGNIFICANT CONFLICT 
BETWEEN THE CIRCUITS.

The Plaintiffs claim that the Fifth Circuit's en banc 
ruling generates a conflict with the Eleventh Circuit. Pet. 
at 19. This is incorrect. After this case was decided by the 
Fifth Circuit, a panel of the Eleventh Circuit chose to 
ignore both the en banc decision in this case and previous 
precedent within its own circuit in order to create a result 
which conflicts with both, as well as with overwhelming 
Supreme Court and legislative authority and the plain 
language of § 2 itself. Nipper v. Smith, 1 F.3d 1171 (11th 
Cir. 1990).

Specifically, in Nipper, Senior District Judge Atkins, 
sitting by designation on the Eleventh Circuit Court of 
Appeals, held that plaintiffs can establish a § 2 violation 
simply by proving the threshold Gingles factors, which, in 
turn, requires only statistical proof of divergence between 
black and white voting patterns, i.e., proof of "racial 
polarization." See Id. at 1182. Other factors -  such as the 
Zimmer factors approved by this Court in Gingles -  are 
relevant only "to the extent that they are supportive of 
the three core Gingles factors, however, they need not be 
present to satisfy the Gingles test." Id. at 1178.

The Nipper court also drew a number of subordinate 
legal conclusions necessary to support its finding of ille­
gal vote dilution in Florida judicial races, including the 
conclusions (1) that the district court's decision to dis­
count the probative value of six races that took place 
between 1972 and 1984 as "stale" was incorrect, 1 F.3d 
1178; (2) that courts can simply assume that if no blacks



14

have run for office in the recent past (as they had not in 
the challenged districts) the reason is discrimination, id.; 
(3) that the election of white candidates supported by 
blacks is no evidence of lack of dilution, id. at 1179-80; (4) 
that actual local factors affecting judicial races, such as 
incumbency, can be used to explain minority candidates' 
success "despite white bloc voting" but not to explain 
their lack of success, id. at 1181; and (5) that a comparison 
of the number of minority judges to the eligible minority 
population "is not responsive to the question of whether 
the Florida judiciary adequately reflects the racial and 
ethnic diversity of the citizens of Florida," but instead, 
the question is "whether the number of minority judges 
reflects proportionately the number of minorities of the 
general population." Id. at 1183 and 1182 n.10.

Nipper is indeed at odds with the Fifth Circuit's 
painstaking analysis of the standard of proof of illegal 
vote dilution as applied to Texas judicial elections. The 
Nipper court itself, however, recognized the internal divi­
sion within its own Eleventh Circuit regarding the issues 
whether vote dilution can be proved simply by proof of 
racially polarized voting and whether defendants can 
raise a defense under the totality of the circumstances. 
Nipper, 1 F.3d at 1178 n .ll and 1182 (citing Solomon v. 
Liberty County, 899 F.2d 1012 (11th Cir. 1990) and Hall v. 
Holder, 955 F.2d 1563, 1528 n.9 (11th Cir. 1992)). Even 
more significantly, the Nipper opinion contradicts the 
wording of § 2 itself, which proclaims that it does not 
establish a right to proportional representation, 42 U.S.C. 
§ 1973(b), and it contradicts Gingles, which holds,

First, . . . Plaintiffs must demonstrate that, under
the totality of the circumstances, the devices



15

result in unequal access to the electoral process.
Id., at 16. Second, the conjunction of an allegedly 
dilutive electoral mechanism and the lack of 
proportional representation alone does not 
establish a violation. Ibid. Third, the results test 
does not assume the existence of racial bloc 
voting; plaintiffs must prove it. Id., at 33.

Gingles, 478 U.S. at 46, 106 S. Ct. at 2764.

Judge Wood suggests that Supreme Court review is 
unnecessary to determine whether this case or Nipper is 
right. As a panel opinion that ignores and contradicts not 
only binding precedent in its own circuit but all prece­
dent outside it, including the face of § 2 itself and control­
ling law as established by this Court, Nipper is an 
aberrant case that should be resolved by the Eleventh 
Circuit, not by this Court.

III.
THE FIFTH CIRCUIT CORRECTLY HELD THAT 
REMAND FOR CONSIDERATION OF PLAINTIFFS' 
SETTLEMENT WAS NOT APPROPRIATE.

The third and fourth issues the Plaintiffs raise as 
questions for certiorari -  essentially whether the Fifth 
Circuit should have remanded their and Attorney Gen­
eral Morales' "settlement" for implementation -  are moot 
in light of the Fifth Circuit's en banc holding that Texas' 
district judge election system does not violate § 2.

If this Court grants certiorari on any issue, it should 
grant it on the merits, not on the Fifth Circuit's proper 
refusal to remand a case for "settlement" where there is 
no violation of law. See App. at 18a-28a. Only a violation



16

of federal law would trigger the Supremacy Clause to 
permit alteration of Texas law without compliance with 
Texas' requirements, and the Fifth Circuit has held there 
is no such violation. Nor could any ruling of this Court 
place the parties in the status quo ante. Therefore, cer­
tiorari should be denied on this issue.

In the interests of equity, however, if this Court 
should grant certiorari on any issue going to the merits of 
this case, the Court should also grant Judge Wood's cross­
petition for certiorari on the issue of the realignment and 
disqualification of the Texas Attorney General. As elabo­
rated in the Fifth Circuit's en banc decision, Texas Attor­
ney General Morales and the Plaintiffs made a bold grab 
for political power, entirely outside all law and authority, 
attempting to impose their political preference for judicial 
subdistricts on Texas by "settling" this case instead of 
complying with Texas' time-honored methods for amend­
ing its Constitution and laws. App. at 10a-28a. Their 
"settlement" failed to win approval from the Texas legis­
lature and was, of course, never submitted to the Texas 
voters as required for any change of the Texas Constitu­
tion. The Fifth Circuit, in its turn, refused to order a 
rubber-stamp remand so that the Plaintiffs and the Attor­
ney General could implement their "settlement." App. at 
18a-28a.

The Fifth Circuit cited sound authority for refusing to 
permit Attorney General Morales' and the Plaintiffs' end- 
run around the law and for permitting the Defendant- 
Intervenors to carry forward the State's defense, given 
the Attorney General's refusal to do so. Authorities cir­
cumscribing the Texas Attorney General's power include 
Baker v. Wade, 769 F.2d 289 (5th Cir. 1985) (en banc);



17

Terrazas v. Ramirez, 829 S.W.2d 712 (Tex. 1991); Public 
Utility Commission o f Texas v. Cofer, 754 S.W.2d 232, 235 
(Tex. 1988). Authorities setting limits on consent decrees 
that affect matters of public interest and curtail the rights 
of others, including intervenors, include Local No. 93, Int'l 
Ass'n o f Firefighters v. City of Cleveland, 478 U.S. 501 (1986); 
United States v. Swift & Co., 286 U.S. 106, 115 (1932); and 
United States v. City of Miami, 664 F.2d 435, 440 (5th Cir. 
1981).

Judge Wood's only disagreement with the Fifth Cir­
cuit's rulings on Attorney General Morales' activities in 
this case is its refusal at this time to realign Attorney 
General Morales personally as a Plaintiff, given his dis­
avowal of his own briefs at oral argument and his public 
repudiation of the defense of this case, and to disqualify 
him as counsel for the defense.

Judge Wood has filed herewith a cross-petition for 
writ of certiorari on the ground that the Fifth Circuit's 
refusal to realign the Texas Attorney General as a party 
and to disqualify him and his staff as counsel for the State 
of Texas conflicts with prior decisions of the Fifth Circuit 
itself and applicable decisions of the Texas Supreme 
Court and of this Court and raises important questions of 
federal law which should be decided by this Court.

If this Court grants certiorari and hears oral argu­
ment on the merits of this case, the State of Texas will 
have no defender, since the Court does not permit shared 
oral argument, and the Texas Attorney General has made 
his refusal to defend Texas law abundantly clear. The 
Court should therefore grant Judge Wood's cross-petition 
and allow Judge Wood to carry forward the defense of



18

the State of Texas on any issues on which the Court 
grants certiorari.

-----------------♦-----------------

CONCLUSION

For the foregoing reasons, Respondent Harris County 
District Judge Sharolyn Wood requests (1) that the Court 
deny Plaintiffs LULAC et al.'s petition for writ of cer­
tiorari or (2), in the alternative, if it grants certiorari, that 
it also grant her cross-petition for writ of certiorari, 
realign Texas Attorney General Morales as a Plaintiff and 
disqualify him and his staff as counsel for the defense, 
and affirm the opinion and judgment of the en banc Fifth 
Circuit Court of Appeals on the merits.

Respectfully submitted,

J. E ugene C lem ents 
C lem en ts, O 'N eill &  P ierce , L.L.P. 
1000 Louisiana, Suite 1800 
Houston, Texas 77002 
Telephone: (713) 654-7600 
Facsimile: (713) 654-7690

Attorney of Record for 
Respondent Harris County 
District Judge Sharolyn Wood

OF COUNSEL:
E velyn  V. K eyes

C lem en ts, O 'N eill  &  P ierce , L .L .P .
1000 Louisiana, Suite 1800 
Houston, Texas 77002 
Telephone: (713) 654-7600 
Facsimile: (713) 654-7690