LULAC Council v. Attorney General of Cancel Brief on Remand for State Defendants-Appellants

    No. 90-8014

UNITED STATES COURT OF APPEALS 
FIFTH CIRCUIT

LULAC COUNCIL #4434, et aL,
Plaintiffs-Appellees, 

v.

ATTORNEY GENERAL OF TEXAS, et aL.
Defendants-Appellants.

Appeal From The United States District Court 
Western District of Texas 
Midland-Odessa Division

BRIEF ON REMAND FOR STATE DEFENDANTS-APPELLANTS

DAN MORALES 
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY F. KELLER 
Deputy Attorney General

RENEA HICKS
Special Assistant Attorney General

JAVIER P. GUAJARDO
Special Assistant Attorney General

P. O. Box 12548, Capitol Station 
Austin, Texas 78711-2548 
(512) 463-2085

September 6, 1991 Attorneys for State Defendants-
Appellants



No. 90-8014

UNITED STATES COURT OF APPEALS 
FIFTH CIRCUIT

LULAC COUNCIL #4434, et aL,
Plaintiffs-Appellees, 

v.

ATTORNEY GENERAL OF TEXAS, et aL,
Defendants-Appellants.

Appeal Ftom The United States District Court 
Western District of Texas 
Midland-Odessa Division

BRIEF ON REMAND FOR STATE DEFENDANTS-APPELLANTS

DAN MORALES 
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY F. KELLER 
Deputy Attorney General

RENEA HICKS
Special Assistant Attorney General

JAVIER P. GUAJARDO
Special Assistant Attorney General

P. O. Box 12548, Capitol Station 
Austin, Texas 78711-2548 
(512) 463-2085

September 6, 1991 Attorneys for State Defendants-
Appellants



TABLE OF CONTENTS

PAGE

iTABLE OF CONTENTS ...

INDEX OF AUTHORITIES................................................................  iii

STATEMENT OF JURISDICTION....................................................  1

STATEMENT OF THE ISSUES............   1

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

Course o f Proceedings and Disposition
in the Courts.............................................................................  2

Statement o f Facts.....................................................................  3

SUMMARY OF THE ARGUMENT....................................................  4

State Interest As A Matter o f Law ............................................... 4

Shifting (And Unmet) Burdens..................................................  6

ARGUMENT ................................................................................... 6

L TEXAS'S INTEREST IN MAINTAINING THE
LONG-EXISTING, CONSISTENTLY-MAINTAINED 
CONGRUITY OF THE PRINCIPAL JURISDICTIONAL 
BASE AND THE ELECTORAL BASE OF ITS DISTRICT 
COURTS IS SUFFICIENTLY COMPELLING TO ESTABLISH, 
AS A MATTER OF LAW, THAT ITS CONSTITUTIONALLY- 
VALIDATED ELECTION SYSTEM FOR DISTRICT JUDGES 
DOES NOT VIOLATE THE RESULTS TEST PRONG
OF SECTION 2 .................................................................... 6

The Next Steps After Chisom and H LA ......................................  6

Constitutional Underpinnings..................................................  8

The State’s Interest As A Legal Question.................................... 8

The Doctrine o f Gregory v. Ashcroft...........................................  10

Interplay Of State's Interest With Results Test
in Challenged Elections .............................................................  12

The State Interest May Vary By State ...................................  12

What Texas Is Not Arguing...................................................  13

How The 1982 Amendments Did Not Affect The
Weight Of The Interest At Stake Here.....................................  14

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Guidance From Equal Protection Law .............

Guidance From HLA And Section 2's Language 17

16

The State's Interests And The Weight They Have..., 17

The Interests______ . 17

The Weight Of The Interests Under Section 2 .......... ..............  19

H. THE PLAINTIFFS FAILED TO PROVE A VIOLATION 
OF THE RESULTS PRONG OF SECTION 2 BY: (A)
FAILING TO ESTABLISH A PRIMA FACIE CASE IN 
EACH DISTRICT: (B) FAILING TO REBUT THE STATE’S 
INTEREST IN MAINTENANCE OF THE CHALLENGED 
ELECTORAL SYSTEM; AND (C) FAILING TO PROVE 
THEIR VOTE DILUTION CASE, INCLUDING ITS 
CAUSATION ELEMENT, BY CLEAR AND CONVINCING 
EVIDENCE..........................................................................  22

Gingles Establishes Elements o f Prima Facie Case.....................  22

Shifting Burdens: The Title VII Analogue....................................  23

Steps In The Shifting Burdens For Section 2 ..............................  24

The Prima Facie Case.............................................................  24

State's Burden o f Production For Its Interests .....................  24

The Continuing Burden Of The Plaintiffs....................   25

The Level Of The Burden........................................................ 26

Causation.............................................................................  26

Imparting Judicially Manageable Standards To
Section 2 Results Cases.... ........................................................  28

CONCLUSION................................................................................  28

CERTIFICATE OF SERVICE ............................................................  30

The State's Interests Suffice As A Matter Of Law 21

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CASES PAGE(S)

Brewer v. Ham, 876 F.2d 448 (5th Cir. 1989) ..................................  22

Campos v. City o f Baytown, 849 F.2d 943 (5th Cir. 1988) ............... 26

Chisom v. Roemer, 111 S.Ct 2354 (1991)............................................. passim

City o f Cleburne v. Cleburne Living Center,
473 U.S. 432 (1985)........................ ................ .......................... 16

City o f Rome v. United States, 446 U.S. 156 (1980) .......................... 14

East Carroll Parish School Board v. Marshall
424 U.S. 636 (1976) .................................................................... 24

EEOC v. Wyoming, 460 U.S. 226 (1983) .........................................  11

Gambill v. Town of Ponder, 494 S.W.2d 808 (Tex. 1973) ................... 18

Gregory v. Ashcroft, 111 S.Ct 2395 (1991)........................................... passim

Houston Lawyers' Association u. Attorney
General oJTexas, 111 S.Ct 2376(1991)...........................................passim

Howlett v. Rose, 110 S.Ct. 2430 (1990) ............................................  18

Jones v. City of Lubbock, 727 F.2d 364 (5th Cir. 1984) ...................  13

Katzenbach v. Morgan 384 U.S. 641 (1966) .................................... 14

Marby v. Madison 5 U.S. (1 Cranch) 137 (1803) ............. ............... 14

McNeil v. Springfield Park District, 851 F.2d 937
(7th Cir. 1988)...........................................................................  24

Mexican American Bar Association v. Texas,
755 F.Supp. 735 (W. D. Tex. 1990) ..............................................  3

Mississippi Republican E+xecutive Committee
v. Brooks, 469 U.S. 1002 (1984) .................................................  13

Oregon v. Mitchell 400 U.S. 112 (1970) ........................................... 14

South Carolina v. Katzenbach, 383 U.S. 301 (1966) .........................  14

Texas Department o f Community Affairs
v. Burdine, 450 U.S. 248 (1981) .................................................  23

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

INDEX OF AUTHORITIES

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Wards Cove Packing Co. v. Atonio, 109 S.Ct. 2115 (1989)................  23

Zimmer v. McKetthen, 485 F.2d 1297 (5th Cir. 1973) .....................  24

STATUTES

18 
1 
1

TEX. CIV. PRAC. & REM. CODE §15.001 
28U.S.C. § 1291 
28 U.S.C. § 1292(a)(1) • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • I

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BRIEF ON REMAND FOR STATE DEFENDANTS-APPELLANTS

This brief, filed pursuant to the August 6, 1991, directive of the Clerk of 

the Court, is on behalf of the official-capacity state defendants-appellants, 

referred to collectively as either "the state" or ’Texas," and who are: the Attorney 

General of Texas; the Secretary of State of Texas; and the thirteen members of 

the Texas Judicial Districts Board, including the Chief Justice of the Supreme 

Court of Texas as chairman of the Board.

STATEMENT OF JURISDICTION

The Court has jurisdiction under 28 U.S.C. §§ 1291 and 1292(a)(1) and 

pursuant to the decision of June 20, 1991, in Houston Lawyers' Association v. 

Attorney General of Texas, 111 S.Ct. 2376 (1991) ("HLA"), remanding the case 

to this Court for further proceedings, id., at 2381.

STATEMENT OF THE ISSUES

L Whether Texas's interest in maintaining the long-existing, consistently- 

maintained congruity of the principal jurisdictional base and the electoral base 

of its district courts is sufficiently compelling to require a determination that, 

as a matter of law, its constitutionally-validated election system for district 

judges does not violate the results test prong of Section 2 of the Voting Rights 

Act?

II. Whether the plaintiffs proved a violation in any of the targeted counties of 

the results prong of Section 2 by: (a) establishing a prima facie case; (b)

rebutting the state's established interest in maintenance of the challenged 

electoral system; and (c) proving their vote dilution case, including its causation 

element, by clear and convincing evidence?



STATEMENT OF THE CASE 

Course q f Proceedings and Disposition in the Courts

The procedural history of this case prior to the Court s en banc decision 

already has been briefed extensively. The Court's two earlier written decisions 

on the merits, reported at 902 F.2d 293 and 914 F.2d 620, accurately canvass 

this history. Therefore, this brief will only review the history of the case 

following the granting of en banc review.1

The en banc Court overruled prior Fifth Circuit precedent and held that 

the results test of the Voting Rights Act's amended Section 2 ("Section 2") did 

not cover vote dilution challenges to judicial election systems. 914 F.2d 620. 

The Supreme Court granted certiorari in this case, as well as in Chisom v. 

Roemer, on certiorari from this Court's decision reported at 917 F.2d 187.

In HLA, the Supreme Court reversed and remanded the en banc 

judgment. The Supreme Court determined, in the context of a challenge to an 

appellate court in Chisom v. Roemer, 111 S.Ct. 2354 (1991) ("Chisom"), that 

Section 2 covers judicial elections. The Supreme Court in HLA determined that 

the Chisom coverage principle also extends to elected trial judges.

On July 22, 1991, the Supreme Court formally returned the case to this 

Court. Subsequently, the en banc Court returned the case to the original panel.

1 The extensive earlier briefing in this case, combined with the Court's obvious familiarity 
with the procedural and factual background, leads the state to conclude that the Court would 
prefer a truncated Statement of the Case in this brief, rather than repetition of earlier briefing, 
so that attention may be focused more readily on the significant legal issues raised by the 
Supreme Court's decisions in Chisom and HLA. Earlier briefs, especially the state's opening 
brief, contain fuller statements of the facts of the case. See Brief for State Defendants- 
Appellants of February 13, 1990; Reply Brief for State Defendants-Appellants of March 6, 1990; 
and Supplemental Brief for State Defendants-Appellants of June 5, 1990. In order to update 
the Court on post-trial factual developments, given the case's relatively long sojourn in the 
appellate courts, the state has taken the liberty of including in its Statement of the Case some 
post-trial developments. The state's effort has been to Include only non-controversial 
statements of post-trial events. Additionally, in an effort to protect the Court from repetitive 
arguments, the state will not repeat the record-based arguments it already has made in its 
opening and reply briefs.

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at which point It was determined that additional briefing and argument were 

needed.

Statement q f Facts

The LULAC plaintiffs originated this case as a challenge to Texas's 

system for electing district judges -- its trial Judges of general Jurisdiction — in 

over 200 judicial districts in forty-four counties. By trial, the challenge had 

narrowed to 172 judicial districts — and 172 judgeships -- in ten counties. 

Post-trial creation of three new Judicial districts in the targeted counties brings 

to 175 the number of judicial districts directly involved here.2 Counting all 

judicial districts created since trial, Texas now has 386 district judges subject to 

election, meaning that 45% of Texas's district courts are directly targeted here. 

Only 10 of Texas's 254 counties, or 4%, are targeted.

The racial or language minority group lodging the challenge varies by 

county, as do the number of judicial districts: (a) African American voters only 

against 59 judicial districts in Harris County, 37 districts in Dallas County, 23 

districts in Tarrant County (expanded to 25, post-trial), and 8 districts in 

Jefferson County: (b) Hispanic voters only against 19 districts in Bexar County 

and 13 districts in Travis County: and (c) a combination of African American 

and Hispanic voters against 6 districts in Lubbock County (expanded to 7, 

post-trial), 4 districts in Ector County, and 3 districts in Midland County. 

Each judicial district in each county is coincident with the boundaries of a single

2 Four more Tarrant County Judicial districts have been authorized but not yet created. A  
three-judge district court rejected a challenge under Section 5 of the Voting Rights Act by 
private plaintiffs and the United States to the creation of the new districts (including the 
nascent Tarrant County ones) in the targeted, as well as other, counties. See Mexican American 
Bar Association v. Texas, 755 F.Supp. 735 (W.D.Tex. 1990), appeal dismissed. 111 S.Ct. 2252 
(1991) (holding the new districts precleared by operation of law and two old districts not subject 
to § 5 preclearance).

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county, except one of the Lubbock districts, the 72nd, which is coincident with 

the combined county boundaries of Lubbock and Crosby.

The district court determined the judicial election system’s maintenance 

and operation in each of the targeted counties to be constitutional, no 

intentional racial discrimination having been established; however, relying 

largely on statistical evidence derived from the 1980 census, it determined that 

the system in each of the targeted counties failed the effects test of Section 2. 

The district court enjoined further primary and general elections under the 

existing electoral system and ordered the state to conduct the 1990 district 

judge elections under a non-partisan, subdistrict election system. The Court's 

stay, following appeals, of the district court's remedial orders remains in effect. 

See Order of March 28, 1990.

Since trial, Texas has conducted its 1990 round of state partisan 

elections, and the official 1990 census has been published. The election system, 

including the configuration of the judicial districts, remains unchanged from 

what it was at trial, except for creation of the new judicial districts mentioned 

earlier.

SUMMARY OF THE ARGUMENT 

State Interest As A Matter O f Law

HLA’s rejection of the en banc LULAC concurrence’s solo decisionmaker 

theory for finding no Section 2 coverage of district judge elections carried, at the 

same time, an unmistakable message about the strength of the theory’s 

principal foundations and the concerns impelling it. HLA, moving beyond the 

skeletal framework of Gingles, held that the strength of the state’s interest is 

an important factor in any results-based Section 2 inquiry. Indeed, HLA’s clear 

implication is that the state’s interest is a principal, potentially determinative, 

focus of the inquiry when judicial electoral systems are challenged.

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For Section 2 judicial election challenges based on results not intent, the 

state Interest in its judicial system has a weight of constitutional magnitude. 

Though it has this magnitude, the state interest’s weight here is statutorily 

determined. The reason it must be said to be statutorily determined, but still of 

constitutional magnitude, is that the 1982 amendment adding the results test 

to Section 2 left intact the constitutional standard for the weight (and dignity) 

which must be accorded state judicial systems which are not invidiously 

discriminatory. Texas’s system for electing its district judges is not invidiously 

discriminatory -- so found the trial court here -- and, therefore, the state’s 

interest here has a constitutional weight, even under the results-based regime 

of Section 2.

The Supreme Court’s decision in Gregory v. Ashcroft specially informs 

this analysis by echoing Chief Judge Clark’s special concurrence in LULAC, to 

the effect that Texas has a “fundamental right" to require that the electoral and 

jurisdictional bases of its trial judges always coincide. This required linkage is 

Texas’s way of maintaining the necessarily (and historically troublesome) 

delicate balance of judicial independence and accountability. Maintenance of 

this balance serves the compelling interest of constitutional democracies such 

as Texas in maintaining judicial legitimacy.

There is no countervailing interest or standard here of constitutional 

magnitude, the case being a results-based instead of an intent-based one. 

Therefore, the state’s interest is compelling, and sufficient, as a matter of law, 

requiring entry of judgment here for Texas.

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Shifting (And Unmet) Burdens

Even if the foregoing analysis is rejected, the state’s interest is of 

sufficient magnitude that the plaintiffs can ovenTide it and succeed in their 

Section 2 claim only if they provide clear and convincing evidence that, under 

the totality of the circumstances, the challenged system results in the denial to 

minority voters of an opportunity to participate in the political process and 

elect judicial candidates of their choice. The plaintiffs failed to carry their 

burden of demonstrating that the principal (if not only) target of their 

evidentiary fusillade — Texas’s linkage of the electoral and jurisdictional base of 

trial judges — is the cause of the proportional underrepresentation of minorities 

on the targeted benches in the counties.

The trial court clearly erred in finding vote dilution under the evidence. 

Consequently, its judgment of a Section 2 violation and its ensuing imposition 

of a remedy breaking the linkage furthering the state’s compelling interest in 

the legitimacy of its judicial system should be reversed, and judgment rendered 

here.

ARGUMENT

L

TEXAS’S INTEREST IN MAINTAINING THE LONG-EXISTING,
CONSISTENTLY-MAINTAINED CONGRUITY OF THE PRINCIPAL 

JURISDICTIONAL BASE AND THE ELECTORAL BASE OF ITS 
DISTRICT COURTS IS SUFFICIENTLY COMPELLING TO ESTABLISH,
AS A MATTER OF LAW, THAT ITS CONSTITUTIONALLY-VALIDATED

ELECTION SYSTEM FOR DISTRICT JUDGES DOES NOT VIOLATE 
THE RESULTS TEST PRONG OF SECTION 2

The Next Steps After Chisom and HLA

The Supreme Court's decisions in Chisom and HLA are limited; they 

decide only the threshold issue that state Judicial elections are subject to the 

requirements of Section 2, including the results test component. The Court 

addressed neither the facial or applied constitutionality of the results test

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component of Section 2, see Chisom, 111 S.Ct. at 2361, nor the elements of 

proof necessary to establish a statutory violation under the results test, see id., 

and HLA, 111 S.Ct. at 2381, nor the availability and scope of a remedy when the 

results test is violated, see id.

Chisom recognizes how much legal ground remains to be plowed in this 

field. 111 S.Ct. at 2368, and leaves this Court the task of confronting the 

"serious problems" in applying the statutory results test, with its attendant 

requirement of considering the "totality of the circumstances." The Court now 

must perform the difficult task of establishing standards for determining 

whether the challenged judicial election system violates Section 2’s results test.

That much legal ground remains to be plowed does not mean that 

preparatory work has not been done with regard to some of the issues. One 

particular Section 2 issue for which important work has been done is how to 

analyze the state’s interest in a challenged system.

While Gingles, being primarily a case about initial burdens for the 

plaintiffs, see Part II, below, says nothing about the state interest factor, HLA 

says at least two important things. It holds that the asserted state interest is a 

“legitimate factor" for consideration in the liability phase of a Section 2 results 

case. I l l  S.Ct. at 2381. Then, by noting that such an interest will not “in every 

case[] outweigh proof of racial vote dilution!,]" id., it implicitly indicates that the 

interest sometimes may outweigh the other factors. Indeed, the HLA Court 

offers two examples of practices and procedures that abridge minority voters’ 

statutory rights to equal opportunity,3 which by their outrageousness, and by 

the critical fact that remedying them would leave unimpaired the state’s

3 One example concerns closing the voting polls at noon; the other concerns the classic 
gerrymander example of an election district shaped In “an uncouth twenty-eight-sided figure." 
I l l  S.Ct. at 2381. There Is no attack here on the shapes of Texas’s counties, which form the 
boundaries of the challenged judicial districts.

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interest in district-wide elections of judges, leaves the unmistakable impression 

that Texas’s interest in this case is sufficient to withstand judicial scrutiny as a 

matter of law.

Constitutional Underpinnings

The Court's task of developing judicially manageable standards for the 

results test of Section 2, and factors such as the state interest factor embedded 

within it, must begin with an understanding of the constitutional constraints 

on both it and the Congress which amended Section 2 in 1982. These 

constitutional constraints guide the courts in more ways than simply whether 

judicial elections may be covered or whether the results test is permissible; they 

also guide the courts in determining how to apportion the weight to be given the 

various factors which, taken together, make up the "totality of the 

circumstances" and which ultimately must be evaluated before making a 

determination of statutory liability.

In other words. Section 2's statutory direction to evaluate the "totality of 

the circumstances" does not by its literal terms, and cannot under 

constitutional constraints, leave a federal trial court with virtually unfettered 

discretion about which of the broad universe of potentially relevant factors to 

consider, nor about how much weight to give the ones it chooses to consider. 

Embedded in the totality of the circumstances are some factors whose relative 

weight is assigned by law, not the unguided discretion of the trial court.

The State's Interest As A  Legal Question

The Supreme Court presaged this conclusion in Thornburg v. Gingles, 

478 U.S. 30 (1986) ("Gingles"). For one thing, it elucidated a legal standard of 

significance for racial block voting. 478 U.S. at 55-58. Later, In nearly the same 

breath that it held trial court vote dilution determinations to be fact findings 

governed on appellate review by Rule 52(a)'s clearly erroneous standard, the

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Court explained that such findings could be predicated on misunderstandings 

of the governing rule of law, thereby subjecting the district court's finding to 

appellate invalidation under a de novo legal review. 478 U.S. at 79.

Thus, both Gingles and HLA indicate that the weight of some of the 

factors embedded in the “totality of the circumstances” is to be determined 

under legal standards. The state interest factor is one of them.

The weight to be given here, in this judicial election challenge, to the state 

interest factor is constitutionally linked. Congress did not change the 

constitutional guidance as to the proper way to assess the state interest in 

judicial elections when it amended Section 2 by giving it a longer reach than the 

Constitution alone has. That is, when Congress extended the independent 

reach of the Fourteenth and Fifteenth Amendments by enacting a results test 

for voting rights cases, it did not, at least in the context of state judicial 

elections, change the weight which the courts afford the state interest factor 

when evaluating whether the challenged action is legal notwithstanding the 

discrimination charge. The state interest factor, rooted in federalism and equal 

protection jurisprudence, is constitutionally based and statutorily unperturbed 

for voting rights challenges to judicial elections.

There is no pretense that the argument in this regard is simple. It is as 

complex as the statute it addresses, so the state urges patience upon the Court 

while the argument is developed.

It is a statutory argument but it starts with the interaction of horizontal 

constitutional constraints (between federal branches of government, meaning 

Congress and the Supreme Court) with vertical constitutional constraints 

(between linked sovereigns, meaning the federal government and the states). It 

is this interaction which sets the ground rules, undisturbed by Congress when 

it amended Section 2, for weighing the state interest factor in the totality of the

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circumstances which must be considered in determining whether otherwise 

constitutional state judicial election systems nonetheless result in lessening 

the opportunity for minority voters to participate in the political process and to 

elect judges of their choice. It also is this interaction which makes the question 

of weighing the state interest one of law, not fact, and thereby permits this 

Court to evaluate the strength of the state interest independently of the district 

court's evaluation.

The Doctrine q f Gregory v. Ashcroft

Gregory v. Ashcroft, 111 S.Ct. 2395 (1991) ["Gregory”), decided the same 

day as Chisom and HLA, enunciates doctrine crucial to the analysis. As does 

this case, it involved the application of a federal antidiscrimination statute to a 

state judicial selection system, the power of Congress under the enforcement 

clauses of the Civil Rights Amendments, and the federalism constraints on the 

reach of federal antidiscrimination legislation.

The Court in Gregory held that the age discrimination strictures of the 

federal Age Discrimination in Employment Act ("ADEA") did not apply to 

appointed state judges who were required by their state constitution to retire at 

the age of seventy. Gregory applied the plain statement rule of statutory 

construction to "avoid a potential constitutional problem." I l l  S.Ct. at 2403. It 

is the Court's explanation of the principles giving rise to the potential 

constitutional problem, more than its plain statement requirement, which is 

critical here, given the fact that Chisom and HLA already have held that Section 

2's coverage extends to elected judges.

Gregory resoundingly reaffirmed the power of each state to prescribe the 

manner in which its officers shall be chosen. I l l  S.Ct. at 2401. It declared that 

this power lies at "the heart of representative government," is reserved to the

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states under the Tenth Amendment, and is "guaranteed" them by the Guaranty 

Clause of the Constitution. Id., at 2402.

The Court in Gregory concluded that principles of federalism survive the

Fourteenth Amendment and that:

[SJcrutiny under the Equal Protection Clause "will not 
be so demanding where we deal with matters resting 
firmly within a State's constitutional prerogatives."

I l l  S.Ct. at 2405; see also id., at 2402.

The Court in Gregory recognized that it already had upheld the ADEA's 

broad coverage of state government employees in EEOC v. Wyoming, 460 U.S. 

226 (1983) ["Wyoming”), as a valid exercise of Congressional power under the 

Commerce Clause. I l l  S.Ct. at 2404. Nonetheless, the Gregory majority 

expressed a reluctance to conclude that the Wyoming-sanctioned extension 

reached to state judges (even if they were not statutorily-exempted state 

"policymakers); instead, it chose to read the statute as not reaching the judges. 

111 S.Ct. at 2406.

The Gregory majority's reluctance to extend the act's coverage to judges 

was constitutionally based and was present (as the Court indicated) regardless 

of whether the ADEA is viewed as an exercise of Congressional power under the 

Commerce Clause or, significantly, § 5 of the Fourteenth Amendment. Justice 

White, in a concurring opinion, characterized Gregory's holding to be that "even 

when Congress is acting pursuant to § 5 [of the Fourteenth Amendment], it 

nevertheless must specify the precise details of its enactment." I l l  S.Ct. at 

2412.

Gregory's lesson for this case is a powerful one. It is that the broad 

exercise of Congressional power to statutorily extend the Constitution's 

independent reach (for example, under the Enforcement Clauses of the 

Fourteenth and Fifteenth Amendments) does not extend the Constitution's

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independent reach in all particulars, especially when a state function so close to 

its constitutionally-fortified core as the judicial system is involved. Preexisting 

constitutional protections, such as federalism, and preexisting constitutional 

doctrines, such as how to weigh the state's interest, may and do remain 

unchanged by blanket exercises of Congressional power to extend the 

Constitution's reach beyond that which the Supreme Court has determined it 

has.

Interplay O f State’s Interest With Results Test in Challenged Elections

We now may apply these principles to the results test of Section 2 of the 

Voting Rights Act and its coverage of judicial elections. The logic may be tedious, 

but, once it is played out below, it leads to the following conclusion. Assume that 

Section 2’s results test is facially constitutional. The state's interest in this case 

in consistently linking the jurisdictional and electoral base of its judges over a 

long term is strong enough as a matter of law (not fact) under governing (and 

statutorily unaltered) Supreme Court equal protection law that it overrides the 

other factors that are present, including any claim that the admittedly 

constitutional system, though it has no intentionally discriminatory purpose, 

has some discriminatory effects.

The State Interest May Vary By State

It may be surmised that other states may fail to underpin their judicial 

election systems with a strong enough interest or to employ an otherwise 

strong enough interest consistently enough over a long enough period, thereby 

losing out when the totality of the circumstances are balanced. Texas, on the 

other hand, has not so failed, and its system must be sustained as a matter of 

law.

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What Texas Is Not Arguing

The first step in the progression of this argument is to avoid any 

misunderstanding by explaining what Texas is not arguing. Texas is not 

arguing that the results test of Section 2 is unconstitutional. The Supreme 

Court has summarily affirmed a holding that the amended Section 2 is 

constitutional, Mississippi Republican Executive Committee u. Brooks, 469 U.S. 

1002 (1984), and this Court has rejected a broad constitutional challenge to 

Section 2's results test, Jones v. City o f Lubbock, 727 F.2d 364, 373-75 (5th Cir. 

1984); but cf. Chisom, 111 S.Ct. at 2376 (J. Kennedy, noting reservation of 

question of Section 2's constitutionality).

Nor need Texas ask the Court to determine now that application of the 

Section 2 results test to judicial elections is unconstitutional. The state of Texas 

has no need, and consequently no current interest, in trying to constitutionally 

insulate all judicial elections systems, regardless of their problematic 

rationality, from invalidation under Section 2. Chief Judge Clark, in his special 

concurrence in the en banc LULAC judgment, offered illustrative examples of 

how judicial election systems different than Texas’s could baselessly harm the 

voting interests protected by Section 2. 914 F.2d at 633. The Supreme Court in 

HLA followed a similar thread by giving two examples, discussed above, of 

systems based on "trivial or illusory" state interests. I l l  S.Ct. at 2381. Texas 

does not need to have the Court reach so far as to place these kinds of judicial 

election systems constitutionally off limits. Texas's interest in its current 

judicial election system is strong enough to withstand judicial scrutiny, without 

resort to such far-reaching arguments.

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How The 1982 Amendments Did Not Affect The Weight
Of The Interest At Stake Here

Texas is arguing that, as to judicial elections, the Congressional addition 

of a results test in 1982 did not change (and thereby necessarily incorporated) 

the constitutional standard for evaluating the strength of the state's interest in 

its constitutionally chosen method for selecting judges. Stated another way, 

the 1982 amendments to Section 2 at a minimum did not lessen, as to judges, 

the weight the courts must give the state's interest in evaluating the clash 

between a results-based claim of discrimination and the targeted system, 

which, significantly in this case, has has been found to be a constitutionally 

valid one. The judicial evaluation (or scrutiny), as Gregory makes clear, is less 

demanding when it is given to a system, such as how to select judges, so firmly 

within the state's constitutionally protected and guaranteed domain than 

when it is given to an area of state regulation that is more precisely targeted by 

congressional legislation (and consequently less constitutionally insulated).

The horizontal constitutional constraints between Congress and the 

federal courts play a key role in this step of the analysis. Congress does not 

have unlimited constitutional authority to extend the Constitution's reach, 

even when employing its enforcement clause powers under the Civil War 

Amendments. Fundamental principles of judicial review established in Marbwy 

v. Madison, 5 U.S. (1 Cranch) 137 (1803), limit congressional power to alter the 

Supreme Court's determination of the Constitution's reach.

It is true that the Supreme Court has upheld congressional extensions of 

the Constitution’s reach beyond limits determined earlier by the Supreme 

Court. The Voting Rights Act was often the focus of these decisions. See City of 

Rome v. United States, 446 U.S. 156, 173-78 (1980); Oregon v. Mitchell 400 U.S. 

112 (1970); Katzenbach v. Morgan, 384 U.S. 641 (1966); South Carolina v. 

Katzenbach, 383 U.S. 301 (1966).

-14-



Nonetheless, while debate rages about the theoretical underpinnings for 

these holdings, even the most expansive reading of congressional enforcement 

clause power rests on a premise that is not present with regard to judicial 

elections. That premise is the empirically-based one that Congress has fact­

finding abilities superior to the federal courts. See, e.g., Katzenbach v. Morgan, 

384 U.S. at 656 (referring to "specially informed legislative competence"); see 

also Oregon v. Mitchell 400 U.S. at 246-50 (J. Brennan, Joined by J. White and J. 

Marshall).

Justice Black's opinion in Oregon v. Mitchell employed the same rationale 

but from a different perspective, one that has considerable importance for this 

case in light of Gregory. Justice Black emphasized the need for "legislative 

findings" when Congress seeks to use the Enforcement Clauses to "invade an 

area preserved to the States." Oregon v. Mitchell 400 U.S. at 130.

Here, in the context of judicial elections, there is near-unanimity that 

Congress did not specifically contemplate the coverage of judicial elections when 

it enacted the statutory results test in 1982. Part of Chisom's very rationale for 

finding Section 2 coverage of the elections challenged here, in fact, is based on 

the tandem conclusions that Section 2 applied to judicial elections prior to 1982 

and that Congress demonstrated no intention of narrowing Section 2’s 

applicability in the amendment process. It necessarily follows, therefore, that 

Congress did not engage in any legislative fact-finding exercise with regard to 

whether there was a basis for altering the preexisting method of scrutiny, and 

attendant weight to give purported state interests, in constitutional equal 

protection analysis as announced and applied by the Supreme Court.

Thus, in amending Section 2, Congress cannot be said to have altered the 

preexisting constitutionally-based status of the relative weight to be given 

asserted state interests when state action is challenged as being

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discriminatory. It may. but it has not done so yet, this latter point being, not a 

self-serving quibble, but instead a critical observation.

It is a big enough step to say that Congress extended the results test to 

judicial elections; it would be possible only through a leap of faith — precisely the 

kind of action which Marbury v. Madison and the principle of judicial review 

preclude — to conclude that the first, unchallenged step also entailed a complete 

reworking and substantial denigration of the constitutional dignity which state 

interests heretofore have been afforded when state functions are challenged. In 

short, the weight to be given the state interest now, under the regime of the 

amended Section 2, is the same as the weight given it before (and now), under 

the Constitution's regime.

Two critical points follow from this conclusion and the lengthy analysis 

preceding it. First, the relative weight to be given the state's interest in the 

current system of electing district judges is a question of law or, at least, a 

mixed question of law and fact. Second, the relative weight of the state's interest 

(especially given the trial court's finding that there is no intentional 

discrimination in the system’s creation and maintenance) is enough to override 

the statistically-based evidence that (taking the trial court's view) underlay the 

determination that the system results in the dilution of minority votes.

Guidance From Equal Protection Law

In its equal protection analysis, the Supreme Court always treats the 

weight of the state interest as a question for review unimpeded by Rule 52(a) s 

clearly erroneous standard. For example, in City o f Cleburne v. Cleburne Living 

Center, 473 U.S. 432 (1985), a case under the Equal Protection Clause, the 

Court engaged in its own analysis of the city’s asserted interests and 

determined that they lacked a rational basis. It rejected the trial court's 

conclusion that there was a rational basis for the asserted interests. There was

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not the slightest indication by the Court that Rule 52(a) inhibited its 

reevaluation of the posited interests.

Guidance From HLA And Section 2’s Language

HLA confirms the fact that nothing in the language of Section 2 indicates 

that Congress has withdrawn state interests as an element to be considered by 

the courts in evaluating Section 2 claims. There also is nothing in the language 

indicates that the relative weight afforded these interests is a factual, instead of 

a legal, question. The "totality of the circumstances" standard of Subsection 

2(b) certainly encompasses the state interest factor and cannot be said to move 

the question of its weight from the realm of law into the realm of fact.

Thus, this Court is not limited by Rule 52(a) in reviewing the trial court's 

determination that the state's proffered reasons for the district judge election 

system are not compelling. Finding of Fact No. 37, Memorandum and Order of 

November 8, 1990. Nor does Rule 52(a) limit the Court in reviewing the relative 

weight given the state's asserted interests by the trial court as it evaluated the 

totality of the circumstances. (In fact, the state interests do not even surface as 

a consideration for the trial court in its evaluation of the totality of the 

circumstances, from which it can only be concluded that they were really given 

no weight at all. This inattention directly contravenes HLA's determination 

that the state interest must be considered as part of the totality of the 

circumstances. I l l  S.Ct. at 2381.)

The State's Interests And The Weight They Have

The Interests

The question now becomes: What is the relative weight that must be given 

the state's interest in its judicial selection system? Answering this question 

requires an evaluation first of what the state's interest is. The short answer is 

that the state's interest is in maintaining both a method of accountability for

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judges — periodic partisan elections is the method established in the Texas 

Constitution — and a way to insure the core due process value of judicial 

independence owed those hailed into court.4 The values of accountability and 

independence, and the necessity of holding them as nearly in equipoise as 

possible, serve, at bottom, a fundamental interest of constitutional democracies: 

the interest in maintaining judicial legitimacy so that a government of laws may 

function.5

There have been endless debates in our history about the proper mix of 

these two values, judicial accountability and judicial independence, and how to 

maintain it in order to maintain, in turn, judicial legitimacy. The people of Texas 

made a choice more than a century ago and have hewed to that choice with 

hardly a swerve or a lurch. It is ensconced in the Texas Constitution. It links 

the jurisdictional base of district judges directly to the electoral base and makes 

the base the same as the basic unit of Texas government, the county, since the 

days of the Texas Revolution in 1836, TY. 4-138.6

The concerns are so elemental that there really is not much more that 

can be said about the state's interest in the system it has chosen. The Chief 

Justice of the Supreme Court of Texas testified at trial that, given an electoral 

system forjudges, linkage of the jurisdictional and electoral bases is crucial. Tr.

4 Chief Judge Clark’s special concurrence In LULAC speaks of "the due process neutrality 
required In the conduct of the (Judicial] office." 914 F.2d at 632.

5 This interest In state judicial systems stretches beyond just the state's Interest. The federal 
sovereign, too, has strong Interests In the integrity of state Judicial systems. Federal law is 
enforceable In state courts, and the Constitution’s Supremacy Clause partially melds the state 
and federal judicial systems, compelling state courts to exercise a "coordinate responsibility" 
with the federal courts in our Nation's system of laws. Howlett v. Rose, 110 S.Ct. 2430, 2438 
(1990).

6 The county Is the basic venue unit for district courts. TEX. CIV. PRAC. & REM. CODE § 15.001. 
The county remains the touchstone for judicial authority to adjudicate In the tug and pull of 
how to accommodate the demands a mobile and commercial society places on judicial 
accountability. See generally Gambill v. Town of Ponder, 494 S.W.2d 808, 809-11 (Tex. 1973) 
(discussing mandatory, nearly Jurisdictional, and permissive venue).

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5-78; Finding of Fact No. 35, Order of November 8, 1989. Judge Higginbotham's 

LULAC concurrence found a "compelling interest" in the maintenance of the 

link. 914 F.2d at 51. There are few more important state interests than 

preserving its judicial system's integrity through the admittedly difficult task 

of harmonizing judicial independence and accountability.

The Weight Of The Interests Under Section 2

Texas's compelling interest in the system it has chosen having been 

established, the weight to be given that interest under Section 2 must be 

determined. In this case, the weight is conclusive of the outcome of the Section 2 

weighing and balancing process. There is nothing else of the constitutional 

magnitude of Texas's interest to serve as a sufficient counterweight.

There is not here, as there is in nearly every other type of results-based 

Section 2 challenge, a countervailing weight of constitutional magnitude in the 

guise of the one person-one vote requirement of the Equal Protection Clause. 

Chisom left untouched the rule that the one person-one vote requirement is 

constitutionally inapplicable to judicial elections. I l l  S.Ct. at 2368. 

Congressional inattention to judicial elections in the 1982 amendment process 

did not, under Gregory and the horizontal and vertical constitutional 

constraints discussed at length above, establish one person-one vote as a 

statutory requirement for judicial elections. Thus, the typical constitutional 

guidepost, or standard, is inapplicable in this setting.

There also is no countervailing weight of constitutional magnitude in the 

guise of the Fourteenth Amendment's injunction against intentional racial 

discrimination. The district court specifically determined that Texas's system 

is not intentionally created or maintained and, therefore, that it is a 

constitutional system. Finding of Fact No. 37 (system not maintained as a

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tenuous pretext for discrimination); Conclusion of Law No. 23 (no Intentional 

discrimination).

No other constitutional standards presenting themselves to the 

imagination, the sole constitutional standard present here is the one that 

Texas has at its core as a sovereign state: the constitutional authority (under 

Gregory and principles discussed there) to configure its judiciary in such a way 

as to protect its integrity and authority.

The plaintiffs have not attacked the configuration of county lines in 

Texas. Nor have they attacked Texas for inconsistent or irrational application 

of the state's constitutional requirement of linkage between the electoral and 

jurisdictional bases. Instead, they have attacked, and the district court would 

break, the linkage itself. They have rested their claim ultimately on no more 

than this challenge. There is no evidence in the record even so much as 

suggesting that other aspects of the district judge election system — e.g., the 

designated place system, anti-single shot voting rules, majority runoff 

requirements for party primaries — are the targets of the discriminatory effects 

challenge to the current system. The existence of those other aspects of the 

system are merely noted in the record, and their contributions to the system s 

discriminatory simply assumed, both by the plaintiffs and the trial court.

Thus, we are left with nothing really but an attack on the very link which 

is a state interest of compelling weight. The outcome of weighing the compelling 

state interest against the statistically-based proof that the court found to 

establish discriminatory results can be nothing other than the conclusion that 

Texas's system is valid as a matter of law.

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The State’s Interests Syffice As A  Matter O f Law

Judge Higginbotham's en banc concurrence, joined in pertinent part by 

four other members of the LULAC en banc court, asserts with regard to the 

proper method of analysis:

Stated in traditional Fourteenth-Amendment terms, 
there is compelling necessity sufficient to overcome the 
strict scrutiny of state acts impinging upon a 
fundamental interest. We would not lightly suppose 
that the Voting Rights Act reached further than the 
Civil Rights Amendments except for dispensing with 
the requirement of purposeful violation.

914 F.2d at 646 (emphasis added). Chief Judge Clark's special concurrence

largely echoes this principle, but with additional force, anticipating as it does

the later Supreme Court holding in Gregory:

The State of Texas has a strong interest, and, indeed, a 
fundamental right to choose to have these judges 
elected in the manner provided here.

914 F.2d at 632 (emphasis added). The state's lengthy argument leads to the 

identical, more succinctly stated, conclusion of these quoted statements.

This case involves a judicial electoral system. As explained above, the 

circumstances of the amended Section 2’s applicability to this type of election 

are sufficiently different that this case is an inappropriate vehicle for 

announcing the legal standards for all types of election systems which may be 

challenged. The applicable legal standards must be tailored to the challenged 

election. Holding here that the state interest is sufficiently strong to outweigh 

as a matter of law the other elements in the totality of the circumstances does 

not establish the rule for all other types of elections. The situation requires 

such a holding here; it may not in some future challenge to another election 

system, even if it is a judicial one.

-21-



n.
THE PLAINTIFFS FAILED TO PROVE A VIOLATION OF THE RESULTS PRONG 

OF SECTION 2 BY: (A) FAILING TO ESTABLISH A PRIMA FACIE CASE IN 
EACH DISTRICT: (B) FAILING TO REBUT THE STATE’S INTEREST IN 

MAINTENANCE OF THE CHALLENGED ELECTORAL SYSTEM; AND (C) 
FAILING TO PROVE THEIR VOTE DILUTION CASE, INCLUDING ITS 
CAUSATION ELEMENT, BY CLEAR AND CONVINCING EVIDENCE

Even if the state's interest in this case is not deemed sufficiently

compelling to outweigh as a matter of law the other factors in the totality of the

circumstances under the analysis in Part I, the plaintiffs still must be held to

have failed to have carried their burden under Section 2. In holding that they

did, the trial court applied the wrong legal standard of proof to the facts, a

failure which lifts the Rule 52(a) insulation from the trial court finding of vote

dilution, Gingles, 478 U.S. at 79.

Gingles Establishes Elements o/Prima Facie Case

Gingles is properly viewed as a first, but not the final, step towards the

development of judicially manageable standards for the trial and appellate

evaluation of voting rights cases brought under the results component of

amended Section 2. It established three threshold criteria, each of which

plaintiffs must satisfy before courts can be required to evaluate the remainder

of the totality of the circumstances. See, e.g., Brewer v. Ham, 876 F.2d 448, 451

(5th Cir. 1989).

This statement of the requirements imposed by Gingles is equivalent to 

describing what it takes for voting rights plaintiffs to establish a prima facie 

case under the statute. The language of Gingles provides direct support for this 

proposition. For example, the Court says that no Section 2 violation can be 

established “unless” the three factors are satisfied, 478 U.S. at 48, and that the 

three factors are the “necessary preconditions" for a Section 2 violation, id. at 

50.

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Shifting Burdens: The Title VII Analogue

The results test component of Section 2 parallels in many ways the 

disparate impact component of Title VII of the Civil Rights Act of 1964. Thus, 

because developments in the law of Title VII have proceeded further than 

developments in the law of Section 2, Title VII law may provide some meaningful 

guidance for the development of Section 2 law. Within the Title VII field, 

disparate impact cases provide a better analogue for this case than disparate 

treatment cases, such as Texas Department o f Community Affairs v. Burdine, 

450 U.S. 248 (1981), because disparate impact cases are effects-based, not 

intent-based, and this is an effects-based case, not an intent-based one (the 

district court’s decision finding no intentional discrimination not having been 

appealed).

Shifting burdens of proof, both of production and persuasion, play a 

major role in Title VII disparate impact cases. The Supreme Court’s most recent 

exposition of these shifting burdens is in Wards Cove Packing Co. v. Atonio, 109 

S.Ct. 2115 (1989). There, the Court revisited, and in the dissent's view 

reworked, the basic route to follow in the trial and evaluation of disparate impact 

cases. First, the plaintiff must carry the burden of persuasion to establish a 

prima facie case which typically is heavily laden with statistical proof about 

racial disparities in the work place. Once that is done, the defendant must 

shoulder a burden of production, offering evidence that the challenged practice 

serves in a significant way its legitimate goals. Through it all, the plaintiff bears 

the ultimate burden of persuading the trier of fact that the challenged practice 

causes the discrimination. Wards Cove, 109 S.Ct. at 2124-26.

This model for how to try a Title VII disparate impact case may be usefully 

applied to Section 2 cases. It offers the courts a way to impose a set of 

manageable trial and evidentiary standards, grounded in the jurisprudence of

-23-



civil rights law, on what otherwise threatens to become standardless 

decisionmaking loosely tethered to the words of the statute by the amorphous 

concept of the "totality of the circumstances." Gingles itself is widely regarded 

as a judicially constructed antidote to this problem. See, e.g.,. McNeil v. 

Springfield Park District, 851 F.2d 937, 942 (7th Cir. 1988) (remarking on how 

the Gingles gloss on Section “reins in the almost unbridled discretion that 

section 2 gives the courts”). Thus, judicial efforts to give form and content to 

Section 2 can salvage the jurisprudence underlying it from being premised on 

the untenable proposition that district courts know it when they see it, even if 

no one can quite explain what “it” is.

Steps In The Shifting Burdens For Section 2

The Prima Facie Case

Gingles, as already indicated above, sets the standard for what plaintiffs 

must prove to establish their prima facie case. Absent that proof, the judicial 

inquiry need proceed no further.7

State’s Burden of Production For Its Interests

Assuming the prima facie case is established, the state's interests in the 

challenged system would come directly into play. That is, the burden would 

shift to the state to produce evidence of its interests in the maintenance of the 

system and the non-discriminatoiy reasons for retaining the system.

The bellwether non-Supreme Court case informing the 1982 

congressional amendment to Section 2 is Zimmer v. McKeithen, 485 F.2d 1297 

(5th Cir. 1973) (en banc), affd sub nom. East Carroll Parish School Board v. 

Marshall, 424 U.S. 636 (1976) (per curiam) ("Zimmer"). It expressly points to

7 The state's opening brief, at pp. 33-40. and its reply brief, at pp. 9-12, canvas the clearly 
erroneous determinations of the trial court in connection with the three Gingles threshold 
factors.

- 24 -



the attention courts must give a state interest in "the use of a multi-member 

districting scheme . . . rooted in a strong state policy divorced from the 

maintenance of racial discrimination." 485 F.2d at 1305 (emphasis added). 

This Court's Zimmer formulation of the role of the state interest foreshadows 

the concept of the production burden urged upon the Court now.

The state easily met this burden at trial, though the trial court took no 

effective notice of it. Instead, it proceeded with a cookbook approach to the facts, 

connected to the various Zimmer factors and, without tying these facts 

together and weighing them against one another, produced a result: a blanket 

determination, covering each of the nine principal targeted counties alike, of 

invalidity of the system.

The record amply demonstrates that the state met its burden of 

production,8 thereby leaving the plaintiffs to ultimately shoulder their full 

burden of proving that the challenged electoral practice, in the precise words of 

Subsection 2(a), "results in" the denial of their voting rights under the totality of 

the circumstances.

The Continuing Burden O f The Plaintiffs

Two questions arise at this stage of the shifting burden of proof analysis. 

First, what level of burden of proof must plaintiffs meet? Second, does the 

language about "results in" impart a causation requirement, so that the 

plaintiffs must establish that it is the challenged practice, and not some other 

factor, which causes the harm complained of? These will be addressed in turn.

8 Under the analysis urged upon the Court In Part I, above, the Court should proceed no 
further because proof of the state’s Interest suffices as a matter of law to conclude the challenge.

-25-



The Level Of The Burden

That this is a voting rights case attacking a function at the core of state 

government differentiates the situation here from the typical Title VII situation. 

The plaintiffs are seeking to undo a system of election which is more than a 

century old and in which the state has a very strong interest in maintaining. 

The level of proof should be higher, given the state institution and interests at 

stake. As six members of this Court observed, the course charted by Congress 

in Section 2 is so difficult and its potential to affect governmental structures so 

great, that a higher standard of proof than preponderance of the evidence 

should be imposed on plaintiffs. Campos v. City of Baytown, 849 F.2d 943, 946 

(5th Cir. 1988) (dissenting from denial of rehearing en banc). The state urges 

the recognition of such a standard, especially given the fact that the targeted 

institution is something as crucial as the state's district court election system.

Causation

The next question is the meaning of "results in" in Subsection 2(a). Again 

turning to the Wards Cove disparate impact model, there is strong support, not 

just in the very words of the statute, but in its structure for the proposition that 

the language requires the plaintiffs to link -- under whatever burden of 

persuasion -- the targeted electoral practice and the alleged discriminatory 

impact of the practice's implementation. In Wards Cove, the Court read the 

statute to require satisfaction of a causation requirement (although there the 

Court made such a requirement part of the prima facie case and here Gingles 

seems to preclude such a ruling).

To the inevitable rejoinder that imposing a causation requirement is 

reintroducing intent as a required element of Section 2 proof, the state would 

observe that Gingles itself suggests otherwise. Gingles did reject causation as 

an element of proof for the threshold factors by holding that the legal concept

-26-



of racially polarized voting includes “neither causation nor intent." 478 U.S. at 

62. This language indicates that the Court viewed causation to be very different 

from intent (which all agree is not a required element of a results-based Section 

2 challenge).

A causation requirement similar to Title VII’s, but resting with the 

plaintiffs’ overall case burden, is warranted here. The record facts of this case 

suggest reasons why.

Among the principal defenses offered by the state were two that highlight 

the need for recognition of Subsection 2(a)’s causation requirement: (i) the 

evidence that the comparatively small eligible pool of eligible minority attorneys 

accounted for the disproportion between the number of minority judges in a 

given county and the number of eligible voters: and (ii) the evidence that 

partisan voting patterns, including straight ticket voting, not racially polarized 

voting underlay the electoral outcomes that were the focal point of the trial of 

the case. The trial court completely discounted both sets of this evidence. They 

were treated as nullities. Finding of Fact No. 43; Conclusion of Law No. 14; 

Finding of Fact No. 32.

Yet, the evidence strongly indicates that it is not the challenged at-large 

system that is the cause of the statistical underrepresentation of minorities on 

Texas trial benches (in comparison to the percentage of minority voters), so 

much as other factors. Recognition of the causation requirement would at least 

cause the trial judge to take into account in evaluating whether the targeted part 

of the electoral system is causing the alleged discrimination or whether, 

instead, other factors are causing it.

At this phase, once a prima facie case had been established and the 

shifted burden of production met by the state, the trial court would be enabled 

to evaluate the totality of the circumstances through a "searching practical

-27-



evaluation of the past and present reality and with a functional view of the 

political process," Gingles, 478 U.S. at 45 (internal quotation marks omitted). 

This ultimate requirement of Section 2 appears to necessitate an inquiry into 

such realities as causation and partisan voting patterns; it contemplates a 

much more involved trial court inquisitiveness than the mechanistic and 

merely formulaic steps taken by the trial court here.

Imparting Judicially Manageable Standards To Section 2 Results Cases

The upshot of this argument is that something has to be done to impart a 

semblance of structure to the complex tasks which Section 2 ultimately must be 

seen to place on federal courts in this critical area of the law. Gingles started the 

difficult task, but threatens to create its own problems of either formulaic, 

sterile inquiry or, once things proceed beyond the three threshold factors, 

unguided decisionmaking under the broad umbrella of the "totality of the 

circumstances." There is a need, and given the wording and underpinnings of 

Section 2, a statutorily marked way to return "judicially manageable standards" 

for trial and appellate evaluation of these kinds of lawsuits.

CONCLUSION

For the reasons stated in this brief, and in the other state briefs on file 

with the Court in this case, the judgment of the district court should be 

reversed and judgment rendered here for the state, upholding its current 

system of electing state district judges in each of the targeted counties. In the 

alternative, the judgment of the district court should be reversed and the case 

remanded to the district court for further proceedings consistent with the 

opinion of the Court. Finally, even if the Court does not reverse the district 

court's judgment for the reasons argued in the state's briefs, the case still 

should be returned to the district court for the taking of additional evidence, 

and the entry of additional findings of fact and conclusions of law, concerning

-28-



relevant elections that have occurred since trial and the impact of the 1990 

census on the facts of the case.

Respectfully submitted,

DAN MORALES 
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY F. KELLER 
Deputy Attorney General

Special Assistant Attorney General

JAVIER GUAJARDO
Special Assistant Attorney General

P. O. Box 12548, Capitol Station 
Austin, Texas 78711-2548 
(512) 463-2085

ATTORNEYS FOR
STATE DEFENDANTS-APPELLEES

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CERTIFICATE OF SERVICE

I certify that on this 6th day of September, 1991, I sent two copies 
of the foregoing document by first class United States mail, postage 
prepaid, to each of the following: William L. Garrett, Garrett, Thompson 
& Chang, 8300 Douglas, Suite 800, Dallas, Texas 75225; Rolando Rios, 
Southwest Voter Registration & Education Project, 201 N. St. Mary’s, 
Suite 521, San Antonio, Texas 78205; Sherrilyn A. Ifill, NAACP Legal 
Defense and Educational Fund, Inc., 99 Hudson Street, 16th Floor, New 
York, New York 10013; Gabrielle K. McDonald, 301 Congress Avenue, 
Suite 2050, Austin, Texas 78701; Edward B. Cloutman, III, Mullinax, 
Wells, Baab & Cloutman, P.C., 3301 Elm Street, Dallas, Texas 75226- 
1637; J. Eugene Clements, Porter & Clements, 700 Louisiana, Suite 3500, 
Houston, Texas 77002-2730; Robert H. Mow, Jr., Hughes & Luce, 2800 
Momentum Place, 1717 Main Street, Dallas, Texas 75201; Walter L. Irvin, 
5787 South Hampton Road, Suite 210, Lock Box 122, Dallas, Texas 
75232-2255; Susan Finkelstein, Texas Rural Legal Aid, Inc., 201 N. St. 
Mary's, Suite 600, San Antonio, Texas 78205; and Seagal V. Wheatley, 
Oppenheimer, Rosenberg, Kelleher & Wheatley, Inc., 711 Navarro, Sixth 
Floor, San Antonio, Texas 78205.

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