Judge Wood's Emergency Application for Stay; Petition for Expedited Permission to Appeal; Motion to Consolidate; Exhibit List Volumes I & II

    A " 

PorTER & CLEMENTS 
FIRST REPUBLICBANK CENTER 

  

700 LOUISIANA, SUITE 3500 

HOUSTON, TEXAS 77002-2730 

ATTORNEYS 
  

A PARTNERSHIP INCLUDING 

PROFESSIONAL CORPORATIONS 
TELEPHONE (713) 226-0600 

TELECOPIER (713) 228-1331 

TELECOPIER (713) 224-4835 

EVELYN V. KEYES TELEX 775-348 

(713) 226-0611 

January 4, 1990 

VIA HAND DELIVERY 
  

Mr. Gilbert F. Ganucheau 
Clerk of the Court 
100 U.S. Court of Appeals Courthouse 

600 Camp Street 
New Orleans, Louisiana 70130 

Re: League of United Latin American Citizens (LULAC), et 
al., Plaintiffs-Appellees, v. Jim Mattox, Attorney 
General of the State of Texas, et al., Defendants, and 

Harris County District Judge Sharolyn Wood, 
Intervenor-Defendant-Appellant; In the United States 
Court of Appeals for the Fifth Circuit (Appeal from 
No. MO88-CA-154 in the United States District Court for 
the Western District of Texas, Midland-Odessa Division) 

Dear Mr. Ganucheau: 

Enclosed for filing are the original and three copies of the 
following documents: 

(1) Defendant-Intervenor Harris County District Judge 
Sharolyn Wood's Emergency Application for Stay: 

(2) Harris County District Judge Sharolyn Wood's Petition 
for Expedited Permission to Appeal Under 28 U.S.C. 

§.1292(b); 

(3) Harris County District Judge Sharolyn Wood's Motion to 
Consolidate; and 

(4) Judge Wood's Exhibit List, Volumes I and II. 

Please verify receipt of these documents in your usual 

manner. 

All counsel are being served with a copy of these documents 
and Exhibit List; however, Judge Wood's Exhibits are not being 
served on counsel, with the exception of Exhibit "j," since 

 



    

PorTER & CLEMENTS 

Mr. Gilbert F. Ganucheau 

January 4, 1990 
Page -2- 

counsel have previously been served with copies of all other 
exhibits. 

Thank you for your attention to this matter. 

Sincerely yours, 

Zn Ve 
Evelyn V. Keyes 

EVK/cdf 

enclosures 

cC: Mr. William L. Garrett 
Ms. Brenda Hall Thompson 
Garrett, Thompson & Chang 
Attorneys at Law 

8300 Douglas, Suite 800 
Dallas, Texas 75225 

Mr. Rolando L. Rios 
Southwest Voter Registration & 

Education Project 
201 N., St, Mary's, Suite 521 
San Antonio, Texas 78205 

Ms. Susan Finkelstein 
Texas Rural Legal Aid, Inc. 
201 'N. St. Mary's, Suite 600 

San Antonio, Texas 78205 

Mr. Julius Levonne Chambers 

Ms. Sherrilyn A. Ifill 
NAACP Legal Defense and Educational Fund, 
99 Hudson Street 

16th Floor 

New York, New York 10013 

Ms. Gabrielle K. McDonald 
Matthews & Branscomb 

301 Congress Ave., Suite 2050 
Austin, Texas 78701 

Inc. 

 



PorTER & CLEMENTS 

Mr. Gilbert F. Ganucheau 
January 4, 1990 
Page -3- 

Mr. Jim Mattox, Attorney General of Texas 
Ms. Mary F. Keller, First Assistant Attorney General 
Mr. Renea Hicks, Spec. Assistant Attorney General 
Mr. Javier Guajardo, Spec. Assistant Attorney General 
P. O. Boxi'12548 
Capitol Station 
Austin, Texas 78701 

Mr. Edward B. Cloutman, III 

Mullinax, Wells, Baab & Cloutman, P.C. 
3301 Elm Street 

Dallas, Texas 75226-1637 

Mr. E. Brice Cunningham 
777 80. "R.1L. Thornton Frwy., Suite 121 
Dallas, Texas 75203 

Mr. Robert H. Mow, Jr. 

Hughes & Luce 
2800 Momentum Place 

1717 Main Street 
Dallas, Texas 75201 

Mr..John L. Hill, Jr. 

Liddell, Sapp, Zivley, Hill & LaBoon 
3500 Texas Commerce Tower 
Houston, Texas 77002-3095 

Mr. Darrell Smith 
Attorney at Law 

10999 Interstate Hwy. 10, #905 
San Antonio, Texas 78230 

Mr. Michael J. Wood 
Attorney at Law 
440 Louisiana, Suite 200 
Houston, Texas 77002  



  

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

  

NO. 

  

  

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

Plaintiffs-Appellees, 

versus 

JIM MATTOX, Attorney General of the State of Texas, et al.; 

Defendants, 

and HARRIS COUNTY DISTRICT JUDGE SHAROLYN WOOD, 

Intervenor-Defendant-Appellant. 

  

DEFENDANT-INTERVENOR HARRIS COUNTY DISTRICT 
JUDGE SHAROLYN WOOD'S EMERGENCY APPLICATION FOR STAY 

  

PORTER & CLEMENTS 
J. Eugene Clements 
Evelyn V. Keyes 
3500 NCNB Center 
P.O. Box 4744 
Houston, Texas 77210-4744 

Nh (713) 226-0600 

ATTORNEYS FOR HARRIS COUNTY 
DISTRICT JUDGE SHAROLYN WOOD 

 



  

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIPTH CIRCUIT 

  

NO. 

  

  

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

Plaintiffs-Appellees, 

versus 

JIM MATTOX, Attorney General of the State of Texas, et al., 

Defendants, 

and HARRIS COUNTY DISTRICT JUDGE SHAROLYN WOOD, 

Intervenor-Defendant-Appellant. 

  

DEFENDANT-INTERVENOR HARRIS COUNTY DISTRICT 
JUDGE SHAROLYN WOOD'S EMERGENCY APPLICATION FOR STAY 

  

Defendant/Appellant Harris County District Judge Sharolyn 

Wood ("Judge Wood") files this Emergency Application for Stay 

pending appeal pursuant to Federal Rule of Appellate Procedure 8 

and 28 U.S.C. §§ 1292(a) (1) and 1292(b), and in support of her 

Application shows the Court the following: 

I. BACKGROUND 
  

This Voting Rights Act case was brought by the League of 

United Latin .American Citizens ("LULAC") and named black and 

Hispanic individuals challenging the system of electing state 

 



  

district judges in certain target counties in Texas. In its 

Memorandum Opinion and Order of November 8, 1989 (the "Opinion"), 

the district court declared that Texas' system of electing state 

district judges from county-wide districts illegally dilutes the 

votes of blacks and/or Hispanics in all nine counties targeted by 

the Plaintiffs. A copy of the Opinion with subsequent amendments 

to correct for clerical errors is filed herewith as Exhibit "c". 

1 / In that Opinion the district court took under advisement the 

question of a possible injunction against future district judge 

elections in the target counties under the system it had declared 

illegal. The court also indicated that it would consider 

granting an expedited appeal on controlling issues of law 

addressed in the Opinion if the Texas legislature failed to 

produce a remedy in a special session previously called for 

November, 1989 to address another matter. Opinion at 93-94. 

The Governor of Texas reported to the Court on December 11, 

1989 that no consensus could be reached in the Texas legislature 

on a remedial plan. Subsequently, Judge Wood filed a motion for 

stay of all further proceedings in the district court together 

with a motion for certification for interlocutory appeal. A copy 

‘of Defendant-Intervenor Harris County District Judge Sharolyn 

Wood's Motion for Certification for Interlocutory Appeal and 

  

1/ Copies of all relevant documents filed with the district court are filed 
herewith under separate cover, as required by Fed. R. App. P. 8 and loc. 
BR. 8. 

 



    

Motion for Stay is filed herewith as Exhibit "el." By its Order 

of January 2, 1990 (the "Order") the district court certified the 

Opinion for expedited interlocutory appeal but denied Judge 

Wood's motion for stay. A copy of the Order of January 2, 1990 

is filed herewith as Exhibit "f". By that Order the district 

court also enjoined the 

calling, holding, supervising and certifying elections 
for State District Court ‘Judges in Harris, Dallas, 
Tarrant, Bexar, Travis, Jefferson, Lubbock, Ector and 
Midland Counties under the current at-large scheme. 

Exhibit "£" "at 5. 

Il. GENERAL OBJECTIONS TO THE DISTRICT COURT'S 
INJUNCTION AND REMEDIAL PLAN 
  

  

In general, Judge Wood objects to the district court's 

injunction prohibiting any future elections under Texas' consti- 

tutionally and statutorily authorized judicial election system in 

the nine target counties and its imposition of its remedial plan 

literally on the date of the filing deadline for state district 

judge races. The district court took these actions without a 

hearing, less than eight weeks after the court's November 8, 1989 

Opinion finding liability, and without any prior opportunity for 

the Defendants to appeal the serious and controversial issues of 

‘law decided by the district court. Moreover, Judge Wood believes 

and has argued repeatedly that any "interim" plan is de facto a 
  

final remedial plan since it effectively partially dismantles the 

state's judicial election system. 

In addition, Judge Wood is unable to find any authority to 

support the district court's imposition of any interim remedial 

 



plan. The district court cites the Court's opinion in Chisom v. 
  

Roemer, 853 -P.24 1186, 1192 (5th Cir. 1988), as authority for 

this unprecedented action. Judge Wood's reading of Chisom is 

exactly the opposite of the district court's. For example, at 

the very page cited by the district court as support for imposi- 

tion of an interim plan, Chisom mandates that, in the event a 

district court finds a Voting Rights Act violation, the responsi- 

ble state authorities [in this case the Texas legislature and/or 

State Districting Board] be given an opportunity to correct any 

constitutional or statutory defect before the court attempts to 

draft a remedial plan. Chisom continues, 

In the interim we are convinced that the system in 
place for the election of the subject judicial officer 
should be left undisturbed. 

853 F.2d at. 1192. 

IIT. SPECIFIC OBJECTIONS TO THE DISTRICT COURT'S 
INTERIM PLAN 
  

  

The district court's remedial plan adopts most of the 

essential features of a "Proposed Remedial Plan" agreed upon by 

the Plaintiffs and Texas Attorney General Jim Mattox ("Mattox"), 

a Defendant in this case and counsel for the State Defendants. A 

copy of the Proposed Remedial Plan is filed herewith as Exhibit 
\ 

"d." This proposed Plan was vigorously opposed by Judge Wood and 

other Defendants. See Exhibits "d2"-"d3". Judge Wood's objec- 

tions to the Plaintiffs' and Mattox's Plan and her objections to 

Mattox's collusion with the Plaintiffs and his dodflices of 

interest in preparing that Plan are more fully discussed in her 

Petition for 1Interlocutory Appeal at 6 through 9 and are  



incorporated herein by this reference. Judge Wood's specific 

objections to the Plaintiffs' and Mattox's Plan itself--most of 

which apply to the Interim Plan adopted by the district court-- 

are fully set out in Exhibit "d2" and are incorporated herein by 

this reference. 

In addition to its injunction against the calling, holding, 

supervising and certifying elections in the nine target counties, 

the district court's Interim Remedial Plan, insofar as it affects 

Harris County, provides as follows: 

31. The ‘entire county shall be divided into ' sub- 
districts. 

Comment : As to ‘Harris County, ‘there’ was .no 
violation alleged or proof adduced except as to 
black voters. There is therefore no reason to 
devise a "remedy" that cures no ill for areas of 
Harris County other than those areas which satisfy 
Gingles I criteria for one or more black electoral 
districts. 

District Court Elections shall be selected from 
existing State Legislative House Districts. 

Comment: The assignment of judges to legislative 
districts was proposed by the Plaintiffs and 
adopted by the district court. Judge Wood has 
already objected to this feature of the Plan on 
numerous grounds. See Exhibit "d2." Among her 
objections are the following: the assignment of 
judges to legislative districts blatantly allots 
legislators patronage power over judges and bears 
no relationship to any proof presented at trial 
regarding the demographic makeup of potential 
minority districts. Specifically, it bears no 
relationship whatsoever to the maps of majority 
black neighborhoods relied on by the Plaintiffs to 
prove vote dilution in Harris County. 

Thirty-six (36) [out of 59] Harris County District 
Judge seats are up for election in 1990. Each 
District will receive one or two judges, as set 
out in Attachment A to the Interim Plan.  



  

Comment: Attachment A was adopted from the 
Plaintiffs' Plan. It assigns two district judges 
to Judicial districts selected by the Plaintiffs 
for their heavily Democratic partisan history and 
their large minority populations. Republican and 
Anglo House Districts are allotted one judge. The 
result is that minority areas of Harris County are 
allotted 61% of the total judgeships--a gross 
departure from equity, from equal protection of 
the laws, from due process, and from the principle 
of one-man, one-vote. The blatant unconstitution- 
ality of such a provision was pointed out by Judge 
Wood in Exhibit "42." 

Each candidate shall run within a designated 
subdistrict and be elected by the voters within 
the subdistrict. 

Comment : This provision ensures that all 1990 
voters will be deprived of due process and equal 
protection of the laws under the Interim Plan 
since they are deprived by court fiat of the right 
to elect 34 or 35 judges (depending on whether 
they reside in heavily Democratic and minority 
legislative districts or not) out of 36 judges who 
have jurisdiction over them. If this is found 
unconstitutional, hundreds of judgments and 
criminal convictions may become invalid, causing 
chaos. 

Elections shall be non-partisan. Each candidate 
shall select the election subdistrict in which he 
or she will run by designated place and shall file 
an application for a place on the ballot with the 
appropriate court officer. 

Comment: This provision invokes a remedy--non- 
partisan elections--not sought by any party to 
this suit and bitterly opposed by the Plaintiffs 
and Mattox. See "Statement Concerning Non- 
Partisan Elections as an Aspect of an Interim 
Remedy" and Letter from Plaintiff Jesse Oliver to 
Judge Bunton, dated December 28, 1989, attached 
thereto, filed herewith as Exhibit "i1." This 
opposition to non-partisan elections by the 
Plaintiffs is especially ironic since they argued 
throughout trial that partisanship was irrelevant 
to claims of vote dilution under § 2 of the Voting 
Rights Act and the court agreed. See Opinion 
at 80. 

 



  

Judge Wood, of course, has argued from the 
day she was allowed to intervene that partisanship 
and not race explains state district judge 
election results in Harris County (a position 
given support by the Plaintiffs' voluble objec- 
tions to non-partisan elections). However, Judge 
Wood has also argued that, under the authority of 
Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858 
(1971), the inability of a minority group to elect 
representatives of its chosen political party does 
not support a valid vote dilution claim. Thus, if 
partisanship, and not race, explains Harris County 
district judge elections, the Plaintiffs have no 
valid vote dilution claim and the district court's 
£2inding, of : liability under § 2 of the Voting 
Rights Act was error. For a fuller discussion of 
this issue, see Defendant Wood's Post Trial Brief, 
filed herewith as Exhibit "bl" at 34-39, .and 
Exhibit "i2" at 47. 

  

Moreover, no claim was ever made in this case 
for non-partisan election districts and no showing 
was ever made that such a "remedy" for vote 
dilution would improve the lot of minority voters. 
To the contrary, in the Attachment to Exhibit 
"il," Plaintiff Jesse Oliver argues that non- 
partisan elections dilute minority voting 
strength. 

In addition, under this provision of the 
district court's plan, candidates are forced to 
run for office without any knowledge of how--if at 
all--Harris County's specialized court system will 
function under the court's plan. Thus, either 
{1) a candidate will file for office .in one 
district only to discover later that he has filed 
in a family court district [since voters in, say, 
HD 149 will turn out to be assigned a family court 
judge] while he is a sitting criminal district 
judge or (2) a sitting criminal district judge 
will file for office as such only to discover 
later that the court-imposed plan silently 
abolishes all specialized «courts, in direct 
violation of Texas law. 

Moreover, imposition of a non-partisan 
election scheme in mini-districts is certain . to 
result in the development of control over judges 
by organized special interest groups. The removal 
of party identification deprives most voters 
(demonstratively at least 80% in Harris County) of 
their only previous means of choosing judges, 

 



  

party identification, without putting any way of 
identifying candidates in its place, even as it 
deprives candidates of the party identification 
and support on which they have previously relied 
to fund their campaigns. The inevitable result 
will be control over judicial selection by special 
interest factions with sufficient interest and a 
sufficient budget to blanket their preferred 
mini-districts with advertisements or direct 
appeals for their slates. This feature of the 
Interim Plan also provides an incentive for 
factions to introduce racism into campaigns where 
there is no evidence whatsoever that it previously 
existed, since race can provide a means of 
identifying with otherwise unknown judicial 
candidates. 

All terms of office shall be for four (4) vears. 

Comment: This provision contradicts the express 
desire of the Plaintiffs for two year terms for 
judges elected under the Interim Plan. Sce 
Exhibit Mal.” In Judge Wood's view it ensures 
maximum disruption of the present system of 
electing judges by providing that half of all 
state district judges elected under the plan 
cannot be removed from office for four years. 
Thus, for four years, legislative districts must 
remain ‘as judicial districts regardless of 
attempts by the Texas Legislature or Judicial 
Districts Board to devise a plan that would 
satisfy the district court. Any attempt to do 
away with these districts would subject the state 
to charges of unconstitutionally depriving those 
judges of their property interest in their 
continued tenure in the offices to which they were 
elected. See Williams v. State Board of Elec- 
tions, 696%. Supp. 1563, 1572 (N.D, Ill. 1988). 
  

Elections shall take place the first Saturday of 
May, 1990, with Run-off Elections to take place 
the first Saturday of June, 1990. 

Comment: The < district court's Interim Plan 
requires a special election for district court 
judges, in contrast to the plan proposed by the 
Plaintiffs and Mattox. Thus it provides a remedy 
no one sought and which has no support in the 
record as a vehicle for maximizing minority voting 
strength. This provision of the Plan has at least 
the additional legal and practical defects of 
(1) requiring voters to go to the polls five times 

 



  

to elect Judges--twice to pick district court 
judges, twice to pick other county and appellate 
Judicial candidates and finally to vote in the 
general election; (2) requiring a special election 
for which there is no provision in any county's 
budget (See Appendix "B") and which jettisons the 
entire legislative machinery for organizing and 
financing of primary elections set out in Title 10 
of the Tex. Elec. Code, subtitles B and C, and the 
tabulation of results of election, Tex. Elec. Code 
§ 68.001; and (3) requiring a run-off one month 
later, thus leaving too little time for the county 
to comply with Texas Election Code requirements 
regarding canvassing of votes. S67.012. 
Moreover, under the Texas Election Code, the 
political parties bear these expenses. See Title 
10, "Tex. . Blec. Code, § 173.001, et. seq. The 
district court's plan blithely ignores the 
question of who pays. It also ignores the 
question of when the judges elected under the 
Interim Plan take office. If immediately, their 
election unconstitutionally deprives the incumbent 
judges of a half-year in office to which they have 
been duly elected. See Williams, 696 F.Supp. at 
1572. 

  

  

An application for a place on the non-partisan 
election ballot must be filed by 6:00 p.m. March 
26,1.1990, Except as modified by the district 
court's plan, all provisions of the Texas Election 
Code remain applicable. 

Comment: It is impossible to determine which, if 
any, provisions of the Texas Election Code 
actually remain applicable under this plan since 
it tramples on so many of them. For example, the 
Plan leaves entirely unclear whether any filing 
fee (previously paid to the county party chairman) 
will be required or whether any petition will 
suffice to obtain a place on the ballot and 
whether previous filings of fees and petitions 
with the appropriate authorities under Texas law 
will count, See Tex. Elec. Code $$ 172.021 
(Application Required); 162.022 (Authority With 
Whom Application Filed); 141.062 (Validity of 
Petition); 172.025, These problems can be 
expected to generate litigation regarding the 
proper filing of candidates for office. 

In 1991, the Administrative Judge of the county- 
wide district shall designate any courts of 
specialization and the district court numbers in 

 



  

10. 

use ‘prior toi the Interim. Plan's . adoption. 
Successful incumbents shall have preference in the 
designation. 

Comment: This provision of the plan allows the 
Administrative Judge, apparently at his sole 
discretion, to make any arbitrary decision he 
wishes as to which judges are assigned to which 
specialized courts, heedless of Texas Statutes 
providing specifically for such designated 
courts--and to make that decision in 1991, after 
the newly elected judges take office, thus 
ensuring maximum administrative chaos and venue 
and jurisdictional disputes of horrendous propor- 
tions. The provision also blatantly violates the 
Court Administration Act, Chp. 74, .Tex. Gov't 
Code, which provides, among other pertinent 
things, that the Texas Supreme Court shall have 
supervisory and administrative control over the 
judicial branch (§ 74.021); that the Supreme Court 
may adopt rules for the operation and management 
of the court system (§ 74.024); and that the state 
is divided into nine multi-county administrative 
regions (§ 74.042). That Act minutely prescribes 
the duties of the presiding judge of each adminis- 
trative region (§ 74.046). It also sets out in 
detail which judges are subject to assignment by 
the presiding judge of the administrative region 
(§ 74.054). All of these provisions suffer gross 
abuse under the district court's Interim Plan. 
See also Comment to provision 5. 
  

Current Jurisdiction and venue remain unaffected 
subject to modification by the Supreme Court of 
Texas. 

Comment: For the jurisdictional and venue 
problems raised by the Interim Plan, see Comment 
to provision 4 supra. In addition, the Interim 
Plan creates grave jury selection problems. See 
Williams v. Superior Court of Los Angeles County, 
263 Cal. Rptr. 503, 781 P.2d 537 (1989) (In Banc) 
(for purposes of the sixth amendment right to a 
jury drawn from a cross-section of the community, 
the relevant community is the judicial district). 
Under Williams (apparently the only case decided 

  

  

  

  

on the subject), the court's Interim Plan creates 
an ambiguity as to whether the "judicial district" 
is the mini-election district or the county-wide 
jurisdictional district, hence whether the 
relevant community for jury selection purposes is 
the mini-district’ or the county-wide district. 

 



Williams raises the specter that mini-communities 
drawn on racial lines are perhaps the only 
appropriate community for jury selection under the 
district court's Interim Plan. 

  

There shall be no right of recusal of Judges 
elected under this plan, since "such a measure 
would be extremely disruptive to District Court 
dockets, administratively costly and could be the 
source of abuse by attorneys attempting to gain 
continuance of their cases." 

Comment: The district court, which departs from 
the Plaintiffs' and Mattox's Proposed Interim Plan 
on this issue, ignores the real fear that such a 
Plan as this without a right of recusal ensures 
that litigants from outside the mini-districts 
facing opponents from the mini-district will have 
to trust to the impartiality of a judge who is 
indebted for his office to the favor of his few 
constituents and is, in a real sense, the "rep- 
resentative" of their interests. Judge Wood has 
argued since her intervention into this case that 
this precise danger follows naturally on the 
proposition that judges are "representatives" of 
their constituents and that subdistricts should 
therefore be drawn so that the votes of those 
constituents in support of their own interests can 
have maximum impact, a view hitherto enthusias- 
tically embraced by the Plaintiffs. 

IV. GROUNDS FOR INJUNCTION AND STAY 
  

To obtain a stay pending appeal under Fed. R. App. P. 8, a 

moving party must demonstrate 

(1) that it is likely to succeed on the merits, 

(2) that it would suffer irreparable injury if the 
stay were not granted, 

(3) that granting the stay would not substantially 
harm the other parties, and 

(4) that granting the stay would serve the public 
interest. : 

National Treasury Employees Union v. Von Raab, 808 F.2d 1057, 
  

1059 (5th Cir. 1987). However, when a serious legal question is  



  

involved, the movant "need only present a substantial case on the 

merits ... and show that the balance of equities weighs heavily 

in favor of granting the stay." Id. (quoting Baylor Univ. Med. 
  

Center, 711 FP.24 38, 39 (5th Cir. 1983), cert, denied, 469 1.8. 
  

1189, 105 s.Ct. 958 (1988)). The criteria for an injunction 

prohibiting operation of the district court's Interim Remedial 

Plan and for a stay of all further district court proceedings 

pending appeal are fully met in this case, as set forth below. 

A. Judge Wood Presents A Substantial Case Which 
Is Likely To Succeed On The Merits. 
  

  

In her Petition for Permission to Appeal to this Court, 

filed simultaneously with this Motion and incorporated herein by 

this reference, Judge Wood states more fully the grounds for her 

contention that the lower court's decision was clearly erroneous 

on numerous points of law, both with respect to Texas' judicial 

election system in general and with respect to Harris County in 

particular. In Judge Wood's view, the lower court erred in at 

least the following ways: (1) it unconstitutionally applied the 

Voting Rights Act to state judicial elections in violation of the 

constitutional principles of the separation of powers and the 

equal protection clause of the fourteenth amendment; (2) it found 

that the election of independent judges from overlapping county- 

wide Judicial districts constituted election from "at-large" 

districts with no supporting authority and despite authority to 

the contrary; (3) it held that illegal vote dilution was proved 

by statistical evidence (which itself was improperly admitted) in 

selected races and that all “other inquiry was "legally 

 



  

incompetent" in defiance of both Supreme Court and Fifth Circuit 

controlling authority directly to the contrary; (4) it held that 

the principle of one-man, one-vote did not apply to judicial 

elections despite Supreme Court authority that the principle of 

one-man, one-vote applies to the election of all "representa- 

tives"; (5) it determined the measure of "electoral success" of 

protected classes according to their percentage of population, 

rather than using Ward's Cove's percentage of qualified candi- 
  

dates as the standard, thus implementing proportional representa- 

tion in direct contravention of the proviso of § 2 of the Voting 

Rights Act: and (6), “in Harris County, it found illegal vote 

dilution without pragmatic proof of unequal opportunity for black 

voters to participate in judicial elections and to elect judges 

of their choice, finding vote dilution instead solely through its 

reliance on unverified, unauthenticated and thoroughly unreliable 

statistical data derived from census tract figures a decade old. 

Moreover, as an interim remedy for the vote dilution it had 

found in this case, the district court adopted for the most part 

a remedial plan which was urged in the utmost cynicism by 

Plaintiffs eager to implement affirmative action and restructure 

Texas' judicial election system before this Court could rule on 

the many grave disputed issues of law. Judge Wood has objected 

to Mattox's and the Plaintiffs' Proposed Interim Plan and to the 

aspects of the district court's Plan not adopted from the 

Plaintiffs and Mattox's Plan on numerous constitutional, statu- 

tory and practical grounds as set forth above in Exhibit "d2" and 

above. 

 



  

If this Court finds that the lower court's decision was 

clearly erroneous with respect to even one of the questions of 

law cited by Defendant Wood, the lower court's decision must be 

reversed. Judge Wood's arguments and citations provide over- 

whelming grounds for finding that the lower court's opinion was 

clearly erroneous and that its remedial plan is similarly riddled 

with error. 

B. Judge Wood Will Suffer Irreparable Harm if 
Her Motion Is Not Granted, Whereas A Stay 
Will Not Substantially Harm The Plaintiffs. 

  

  

  

The timing of the district court's injunction prohibiting 

elections in the target counties under Texas' constitutionally 

and statutorily mandated election system and its imposition of a 

radically different scheme which violates numerous laws and 

constitutional principles within six hours of the filing deadline 

for state district judge positions presents an imminent threat of 

irreparable harm to Judge Wood by its precipitate irremediable 

destruction of the judicial election system she defends. By 

contrast, should the 1990 judicial elections be allowed to 

proceed as they have for a century, no significant damage will 

have been done to the Plaintiffs in this suit, even should the 

district court's opinion ultimately be upheld, and the stability 

of the judicial system will be protected pending appeal. 

Under very similar circumstances, this Court has held that 

irreparable injury to the Plaintiffs is not automatically 

established merely by a showing that a challenged electoral 

standard, practice, or procedure results in a denial or 

 



  

abridgement of a minority group's right to vote. Chisom wv. 
  

Roemer, 853 F.2d 1186, 1138-89 (5th Cir. 1958) (vacating injunc- 

tion prohibiting election of justices to the Louisiana Supreme 

Court under election system found by the district court to 

violate the Voting Rights Act). In refusing to issue an injunc- 

tion in Chisom, the Court quoted Justice Black in Oden Vv. 
  

Brittain, 396 U.S. 1210 (1969) as follows: 
  

In awarding or withholding immediate relief, a court is 
entitled to and should consider the proximity of a 
forthcoming election and the mechanics and complexities 
of state election laws, and should act and rely upon 
general equitable principles. With respect to the 
timing of relief, a court can reasonably endeavor to 
avoid a disruption of the election process which might 
result from requiring precipitate changes that could 
make unreasonable or embarrassing demands on a State in 
adjusting to the requirements of the court's decree. 

chisom, 853 F.24 at 1189, 

The only possible injury--if it is an injury--to the 

Plaintiffs from this Court's vacating the district court's 

injunction and imposition of the remedial plan and staying 

further proceedings in that court is that judges will be elected 

for one more election under a 100-year old system which the 

district court has found to be statutorily, but not constitution- 

‘ally, infirm. The Chisom court, facing just such a situation, 

stated: 

We consider significant the Supreme Court's action 
in [Whitcomb v.] Chavis [403 U.S. 124, 91 S.Ct. 1858 
  

(1971)]. In staying the reapportionment plan ordered 
by a three-judge court, the Supreme Court permitted the 
conduct of an election under the old scheme which had 
been found constitutionally infirm. In dissenting from 
the refusal to vacate their stay order, Justice Douglas 
pointedly stated: "The State contends that without a 
stay it will be forced to conduct the forthcoming 

 



    

election under the reapportionment plan of the District 
Court. By granting the stay, however, this Court has 
equally forced the appellees to go through the election 
under the present scheme which was held unconstitu- 
tional by the District Court." 396 U.S. 1064, 90 S.Ct. 
761, 24 L.Ed.2d 757. Nonetheless the court permitted 
the election to proceed. 

Chisom, 853 7.24 at 1189. For the same reasons, this Court 

should vacate the district court's injunction against further 

elections under Texas' present system of electing State district 

judges from county-wide districts and it should stay all further 

proceedings in the district court, including the promulgation or 

implementation of any remedial plan, pending appeal. 

C. A Stay Will Serve The Public Interest. 
  

A stay barring implementation of the district court-ordered 

remedial plan and all further proceedings in the district court 

pending appeal is essential in order that the public interest be 

truly served. In the short time since the district court's 

declaratory judgment was entered--six weeks--this case has 

generated immense controversy both in the halls of government and 

in the press. Numerous interested persons--including the 

Governor, the Chief Justice of the Texas Supreme Court, Tarrant 

and certain Bexar County Judges, and various legislators and 

‘district judges--have come forward with their own hastily 

conceived proposals, each designed to protect interests the 

designer perceives as paramount. None of these many proposals 

has had an opportunity to generate any popular support beyond the 

promulgators themselves. All will be rendered unnecessary should 

this Court determine that the illegal vote dilution perceived by 

 



  

the ‘district court does not, in fact, exist, that that court's 

judgment was improper and that Texas' system of electing state 

district judges violates no laws--a decision which Judge Wood 

believes, and has argued, is fully supported by the law. 

Should this Court eventually uphold the district court's 

ruling, the public interest would still be served by protecting 

an orderly and stable judiciary and judicial system while 

permitting time for rational debate on the crucial issues of 

state government involved and by permitting time for the people 

of Texas to consider the proposals presented to them and to vote 

on the constitutional amendment which would then be required. 

The public interest is only disserved--and in the most grievous 

fashion--by permitting the implementation of a radical, hastily 

conceived, self-serving plan designed to "remedy" vote dilution 

(which this Court may well find does not exist) at the expense of 

all voters and judges in Texas' nine most populous counties. 

V. GROUNDS FOR EMERGENCY RELIEF 
  

The disastrous effects of the district court's Interim Plan 

on judicial selection in the State of Texas cannot be overstated. 

That Plan was issued and took immediate effect only six hours 

‘before the filing deadline for the office of state district 

judges on January 2, 1990. The judicial candidates had therefore 

filed for election before the district court's order became 

public. In effect, the district court is altering an election 

already in progress. Among the many reasons for this Court to 

enjoin the imposition of the district court's Interim Plan and to 

i117 

 



  

require that state district judge elections go forward as 

previously scheduled are the following: 

(1) Time is of the essence in determining whether 
Texas' statutory judicial election system shall 
apply. The primary election of state district 
judges under Texas' statutorily decreed election 
system is March 13, 1990. Under the Texas 
Election Code absentee voting must begin on the 
twentieth day before the election, Tex. Elec. Code 
§ 85.001(a). Therefore, ballots must be prepared 
and ready for absentee voting to begin on or 
before January 12, 1990--a date less than ten days 
away. 

(2) The Texas Election Code § 142.010 requires the 
certification of candidates for judicial office 
not later than the 55th day before election day, 
i.e., under Texas' statutory system of electing 
state district judges, not later than January 12, 
1990. 

(3) If any candidates request a refund of his regis- 
tration fee for filing in the old districts 
outlawed under the district court's Plan and then 
this Circuit orders a stay those candidates may be 
ineligible to run for state district judge at all 
because of improper registration. See Tex. Elec. 
Code § 141.062. 

(4) The chaos which would be created by the Court's 
untried interim plan may well frustrate experi- 
enced judges into early retirement or cause fluke 
election victories where judges with many years of 
service are cavalierly sacrificed to newcomers 
with dubious reputations and credentials. 

In addition, the pragmatic nuts-and-bolts problems of 

‘adjusting Texas' and Harris County's electoral machinery to the 

Court's unique and unprecedented interim plan, within three 

months of a new filing deadline, four months of an election, and 

five months of a run-off are underscored by the obstacles 

presented in the letter of the Texas Secretary of State attached 

hereto as Appendix A, the affidavit of Harris County Judge Jon 

- 18 = 

 



  

Lindsay attached hereto as Appendix B, and the affidavit of 

Harris County Clerk Anita Rodeheaver attached hereto as 

Appendix C. 

These immediate results of the district court's injunction 

prohibiting elections under Texas' constitutionally and statuto- 

rily authorized judicial district election system and its 

imposition of a hastily devised, unsought and untested remedy 

approved by no one but itself do not by any means exhaust the 

reasons for this Court to act swiftly--the overriding reason 

being, of course, the inevitable day-by-day accumulation of 

disastrous consequences and uncertainties from this shot scat- 

tered at the Texas judicial election system by the district 

court. 

WHEREFORE, for the foregoing reasons, Defendant Harris 

County District Judge Sharolyn Wood requests that this Court 

vacate the district court's order enjoining the election of 

Texas' state district judges under the present system in the nine 

target counties at issue in this suit, including Harris County; 

that it stay the implementation of the Interim Plan adopted by 

the district court; and that it stay all further proceedings in 

‘the district court, including without limitation the promulgation 

or implementation of any other remedial plan, pending appeal of 

the district court's Memorandum Opinion and Order of November 8, 

1989 as amended. 

--19 - 

 



  

Respectfully submitted, 

PORTER & CLEMENTS 

  

      
   

. Bugene Clements 
velyn V. Keyes 
300 NCNB Center 

+O. Box 4744 

Houston, Texas 77210-4744 

(713) 226-0600 

ATTORNEYS FOR HARRIS COUNTY 
DISTRICT JUDGE SHAROLYN WOOD 

OF COUNSEL: 

Darrell Smith 
Attorney at Law 

10999 Interstate Hwy. 10, #905 
San Antonio, Texas 78230 
(512) 641-9944 

Michael J. Wood 

Attorney at Law 
440 Louisiana, Suite 200 
Houston, Texas 77002 

(713) 228-5105 

CERTIFICATE OF SERVICE 
  

I hereby certify that on the YA aay of January, 1990, a 
true and correct copy of the above and foregoing document was 
mailed to counsel of record in this case by first class United 
States mail, postage prepaid, addressed as follows: 

Mr. William L. Garrett 
Ms. Brenda Hall Thompson 
Garrett, Thompson & Chang 
Attorneys at Law 
8300 Douglas, Suite 800 
Dallas, Texas 75225 

20 

 



  

Mr. Rolando L. Rios 
Southwest Voter Registration & 

Education Project 
201 ‘MN. St. Mary's, Suite 521 
San Antonio, Texas 78205 

Ms. Susan Finkelstein 
Texas Rural Legal Aid, Inc. 
201 N. St. Mary's, Suite 600 
San Antonio, Texas 78205 

Mr. Julius Levonne Chambers 
Ms. Sherrilyn A. Ifill 
NAACP Legal Defense and Educational Fund, Inc. 
99 Hudson Street 

16th Floor 

New York, New York 10013 

Ms. Gabrielle K. McDonald 
Matthews & Branscomb 

301 Congress Ave., Suite 2050 
Austin, Texas 78701 

Mr. Jim Mattox, Attorney General of Texas 
Ms. Mary F. Keller, First Assistant Attorney General 
Mr. Renea Hicks, Spec. Assistant Attorney General 
Mr. Javier Guajardo, Spec. Assistant Attorney General 
P., O. Box 12548 
Capitol Station 
Austin, Texas 78701 

Mr. Edward B. Cloutman, III 

Mullinax, Wells, Baab & Cloutman, P.C. 
3301 Elm Street 
Dallas, Texas 75226-1637 

Mr. E. Brice Cunningham 
777 So. R.L. Thornton Freeway 
Suite 121 
Dallas, Texas 75203 

Mr. Robert H. Mow, Jr. 

Hughes & Luce 
2800 Momentum Place 

1717 Main Street 
Dallas, Texas 75201 

Se V. /Keyes 
  

WO005/03/cdf 

- 21. 

 



   



4 3 1 ’ 

  

  

EXECUTIVE DIVISION 
P.O. Box 12697 
Austin, Texas 78711-2697 
(512) 463-5701 

ELECTIONS DIVISION 

P.O. Box 12060 

Austin, Texas 78711-2060 
(512) 463-5650 

Disclosure Filings 
P.O. Bax 12070 
Austin, Texas 78711-2070 
(512) 463-5704 

DATA SERVICES 
DIVISION 

P.O. Box 12887 

Austin, Texas 78711-2887 
(512) 463-5609 

SUPPORT SERVICES 
DIVISION 
Financial Management 
P.O. Box 12887 
Austin, Texas 78711-2887 
(512) 463-5600 

Suaff Services 
P.O. Bax 12887 
Austin, Texas 78711-2887 
(512) 463-5600 

STATUTORY FILINGS 
DIVISION 
Corporations 
P.O. Bax 13697 
Austin, Texas 78711-3697 
(512) 463-5555 

Siatatory Documents 
P.O. Box 12887 
Austin, Texas 78711-2887 
(512) 463-5654 

Texas Register 
P.O. Box 13824 
Austin, Texas 78711-3824 
(512) 463-5561 

Uniform Commercial Code 

P.O. Box 13193 
Ausun, Texas 78711-3193 
(512) 475-2705 

Office of the 

SECRETARY OF STATE 
George S. Bayoud, Jr. 
SECRETARY OF STATE 

eLEUTICONS- 0000: ® 

  

January 4, 1990 

The Honorable Jim Mattox 
Attorney General 
State of Texas 
Supreme Court Building 
Austin, Texas 78711 

RE: Vv A -88-VS-~ 
ULA UN + V . 

UNITED STATES DISTRICT COURT, WESTERN DISTRICT 
OF TEXAS, MIDLAND-ODESSA DIVISION 

Dear General Mattox: 

As I told you in my letter to you of December 21, 
1989, I opposed the proposed agreed order which you 
were negotiating with the plaintiffs. Among the 
reasons were that it would be difficult to ad- minister; some citizens may effectively be dis- enfranchised in elections under the proposed plan; 
and my belief that judicial selection is a matter for the Texas Legislature to address. None-the-less, you submitted the plan and the court in great part adopted the plan. Therefore, as a named defendant in the referenced cause, I am instructing you as my 
legal counsel to immediately file a Motion for a Stay 
of the entire Order dated January 2, 1990. This stay should be sought to be maintained until full appel- 
late review on the merits. I further instruct you to make an interlocutory appeal on all available issues 
from such Order. The problems mentioned in that December 21st letter continue to exist under Judge 
Bunton's Order. 

As Chief Elections Officer of the State, I am en- 
trusted with the duty of advising and aeeisting 
election authorities with regard to the application, 
operation, and interpretation of the Election Code 
and election matters generally. There are numerous 
problems in implementing the nonpartisan judicial 

    

 



  

The Honorable Jim Mattox 
Page 2 

elections in nine counties in Texas as set out in the order. 2A brief list of only some of these problems is as follows: 

(1) Which authority is actually ordering the elections? It appears that Judge Bunton is ordering the elections as his order cites on page 7, Item 6: 

Section 41.001(b)(5) of the Texas Election 
Code which refers to "an election held under 
an order of a court or other tribunal...." 

(2) There are numerous other questions revolving around the answer to Question (1) above, €.g., who gives notice of the elections; who authorizes the voting systems to be used in the elections; who is the custodian of the election re- 
cords; and so forth. 

(3) Which election precincts are to be used for the elections? 

(4) Who appoints the election judges? 

(5) As the elections do not fall within the definition of a "primary election" in Section 1.005(14) of the Election Code, is it to be assumed that there will be no filing fees paid by candidates, no petitions in lieu of filing fees, and no judicial petitions as required in certain counties? 

(6) How will the canvass be conducted? Under the Election Code, the Governor is to canvass the returns for a district office. Under Section 67.012 of the Election Code, this state canvass may not be held earlier than the 15th day after the election, i.e., May 20. Absentee voting for the runoff is to begin on May 14 under the provisions of the Elec- tion Code. There is not enough time for the canvass and preparation of ballots for absentee voting to begin for the June 2 runoff. J 

(7) Who will be the absentee voting clerks in Ector, Lubbock, and Midland Counties as the elections will not be countywide in those counties? 

(8) What will be the procedure to be used if a judge whose term is not on the ballot in 1990 resigns or dies? will the unexpired term be on the ballot in May? 

(9) There could be a problem in preserving the election results from the primary runoff in that absentee voting for the May 5 election will begin on April 16 while the runoff is 
April 10. 

  

 



—_—n . y fe I Lr ONS=- 0000:& 4 

  

The Honorable Jim Mattox 

Page 3 

(10) There is no provision in the Order for a filing of 
declaration of write-in candidacy; thus, there will be an 
unlimited number of write-in candidates in the elections and 
all write-in votes will have to be counted. 

(11) Which political subdivision will pay the costs of 
conducting the elections? Harris County will have no other 
elections on May 5 and the County Clerk estimates the cost for 
the election will be some $1 million in Harris County alone. 

There are numerous other questions and problems with the implemen- 
tation of Judge Bunton's Order which I will not list in the inter- 
est of brevity. I am concerned, however, that on Page 4 of the 
Order Judge Bunton says: 

+. An Agreed Settlement was entered into by and between 
the Plaintiffs and Defendants in this matter, but was not 
approved by some of the Intervenors. 

I would refer you to my letter of December 21, 1989, in which I 
objected to that proposed settlement and "request{ed] that you 
refrain from entering into such plan and that you refrain from 
entering into any other such settlement or plan without my prior 
written consent." 

As you know, unless the court's order is stayed by mid-January 
1990, when candidates have been certified and ballots are being 
prepared, the election cycle will have progressed beyond a point 
at which it may reasonably be altered. Furthermore, it is impor- 
tant that the legislature have a reasonable period of time to 
address this issue in a special session. As a result, I need to 
know whether you will seek the stay in accordance with my instruc- 
tion. I need your response in a timely manner to enable me to seek 
independent counsel, without cost to the state, in the event you 
will not abide by my instructions. New counsel would need adequate 
time to seek a stay before mid-January 1990. 

I look forward to hearing from you. 

Sincerely,     
GSB:TH/blltrs 

cc: Judge Lucius D. Bunton, III, Judge, United States District 
Court, Western District, Midland-Odessa Division 

  

 



   
SENT BY:SECRETARY OF STATE ? Y= 4-QOry Y2: Cy

 

4 

The Honorable Jim Mattox 
Page 4 

Clerk, United States District 
Midland-Odessa Division 

Ms. Mary F. Keller 
First Assistant Attorney General 

Mr. Renea Hicks 
Special Assistant Attorney General 

Mr. Javier Guajardo 
Assistant Attorney General 
P. O. Box 12548, Capitol Station 
Austin, Texas 78711-2548 

Mr. William L. Garrett 
Garrett, Thompson & Chang 
8300 Douglas, Suite 800 
Dallas, Texas 75225 

Mr. Rolando Rios 
Southwest Voter Registration & 

Education Project 
201 North St. Mary's, Suite 521 
San Antonio, Texas 78205 

Ms. Sherrilyn A. Ifill 

Court, Western 

NAACP Legal Defense and Educational Fund, Inc. 
99 Hudson Street, 16th Floor 
New York, New York 10013 

Ms. Gabrielle K. McDonald 
301 Congress Avenue, Suite 2050 
Austin, Texas 78701 : 

Mr. Edward B. Cloutman, III 
Mullinax, Wells, Baab & Cloutman, P.C. 
3301 Elm Street 
Dallas, Texas 75226-1637 

Mr. J. Eugene Clements 
Porter & Clements 
700 Louisiana, Suite 3500 
Houston, Texas 77002-2730 

Mr. Robert H. Mow, Jr. 
Hughes & Luce 
2800 Momentum Place 
1717 Main Street 
Dallas, Texas 75201 

    

0000:® 5 

District, 

 



  

The Honorable Jim Mattox 
Page 5 

The Honorable William P. Clements, Jr. 
Governor, State of Texas 

The Honorable William P. Hobby 
Lieutenant Governor, State of Texas 

The Honorable Gibson D. Lewis 
Speaker of the Texas House of Representatives 

The Honorable Thomas R. Phillips 
Chief Justice, Supreme Court of Texas 

    

 



   



  

STATE OF «TEXAS 

COUNTY OF HARRIS 

AFFIDAVIT 

BEFORE ME, the undersigned authority, personally appeared 
JON LINDSAY, known to me, who upon being by me duly sworn deposed 
and said as follows: 

My name 1s Jon Lindsay. I am the County Judge of 
Harris County, Texas, which office I have held since 
January, 1975, I have reviewed the Order of the 
United States District Court for the Western District 

of Texas in Cause No. 88-CA=-154, styled LULAC Council 
4434, et al v. Jim Mattox, et al, signed and entered 
by the Court on January 2, 1990, and am familiar with 

its terms. 

I am extremely concerned, as the chief administrative 
officer of Harris County, about the elections ordered 
to be held for thirty-six (36) district judges on May 
5, 1990, with run-off elections ordered to be held on 
June 2, 1990. My concerns involve two primary areas. 

First, in my experience, a county-wide election in 
Harris County, Texas, costs between $750,000 and 
$1,000,000. Harris County 1s not a party to the 
above-described action, and the Order makes no 

menticn of who is to pay that cost and from what 
source of funds. If the run-off election is held, 

the cost will be between $30,000 and $40,000 per 
district included in the run-off. Because of the 
extreme shortness of time between the second primary 
election, to be held on April 10, 1990, the first 
election ordered on May 5, 1990, and the second 
election ordered on June 2, 1990, the costs will be 
higher than usual. In order to comply with the 
numerous tasks necessary to hold the elections, 
overtime personnel will be necessary, and the cost 
will be closer to the high end of the range I have 
described. Harris County has no money budgeted or 
available to hold these additional elections. 

 



  

Affidavit of Jon Lindsay, January 3, 1990, Page Two 

Secondly, the turn out that may be expected in an 
unusual, off-date election, will be at most 5% of the 
registered voters in each district. This estimate is 
based on numerous experiences with county-wide bond 
elections held during my time in office as County 
Judge. A 5% turn out translates to less than 2,000 
votes per legislative district, which means that a 
winning judge will be elected with very few more than 
1,000 votes. Obviously, special interest groups will 
be in a position to seize district court benches by 
producing a turn out of "one cause" voters. As 
County Judge, I fear for the administration of 
Justice in civil and criminal matters, in a system 
where judges with county-wide authority, in a county 
with 1.3 million registered voters, are selected by 
no more than 1,000 voters. 

FURTHER AFFIANT SAYETH NOT. 

  

  INDSAY / 

SUBSCRIBED AND SWORN TO befor e, m the undersigned authority, 
this 3rd day of January, 1990. 

ol sROw WN, 

. Th. EERE 27 . 

  NOTARY PU Lio, State of as 

Enh Mp 
ZT gn 

"60 8, 3 
42 TIL 

 



   



  

STATE OF TEXAS 

COUNTY OF HARRIS 

AFFIDAVIT 

BEFORE ME, the undersigned authority, personally appeared Anita 
Rodeheaver, known to me, who being by me duly sworn, deposed and said as 
follows: 

My name is Anita Rodeheaver. I am the County Clerk of Harris County, 
Texas, which office I have held since January 1, 1978. Pursuant to 
Article 51.002(c) of the Texas Election Code, I am the Chairman of the 
County Election Board of Harris County, Texas. 

I have reviewed the Order of the United States District Court for the 
western district of Texas signed and entered on January 2, 1990 in 
Cause No. MO-88-CA-154 styled LULAC Council No. 4434, et al vs. Jim 
Mattox, et al and am familiar with its terms. My review has raised 
serious questions and problems with respect to the elections for 
thirty-six (36) district judges, ordered to be held on May 5, 1990 
followed by runoff elections ordered to be held on June 2,.1890," “1 
will list my concerns, but not necessarily in order of their greatest 
significance. 

1. A number of routine procedures, which are established and wel] 
known in the primary elections and general elections, have become 
extremely uncertain under the Order. Is a filing fee required? Is a 
petition, ordinarily required for district judges in Harris County, 
also required? What form of application will be utilized and who will 
promulgate that form? Who will certify the correctness and 
completeness of those applications? The applicability of the normal 
provisions of the Texas Election Code to these questions is extremely 
unclear, 

2. Various provisions of the Texas Election Code, too numerous to list 
here, defer many decisions concerning the holding of an election to the 
"authority calling the election". Who is the authority calling the 
election on May 5, 1990 and on June 2, 1990. Until that is determined, 
as an elections officer, I am not even able to select a voting system 
to be utilized in an election. 

3. The Texas Legislature established the date for the regular primary 
as March 13, 1990 and the runoff as April 10, 1990. Under the Election 
Code, Section 85.001, absentee voting for the May 5, 1990 district 
judge election must begin on April 23, 1990, less than two weeks after 
the primary runoff. 1 have held more than fifty countywide elections 
in my term of office as County Clerk and I believe it will be virtually 
impossible to recall all voting equipment utilized in the primary 
runoff, have new ballots printed, have the equipment reconstituted and 
redelivered to remote voting locations in time for absentee voting. 

 



  

FURTH 

3rd d 

4. In my experience, the cost of a countywide election is at least 
$750,000.00 and could exceed $1,000,000.00. If a runoff is necessary 
in June, the cost would approach $30,000.00 per legislative district. 
These estimates are minimum, because the shortness of time will require 
me to utilize temporary and overtime personnel to accomplish the 
tasks.The budget of my office includes no surplus funds available to be 
used to hold these new special elections. 

5. The Texas Election Code provides for a canvass of the vote to be 
performed not before the 15th day after the election nor after the 30th 
day after the election by the governor of the state. Until the canvass 
is performed, drawing for positions on the ballot cannot be done nor 
can the ballots be printed. The timing of the specially ordered 
election and runoff election is such that absentee voting for the 
second election must begin on May 14, 1990 while the canvass cannot be 
performed until May 20, 1990. 

6. Based on my experience with off-date special elections, I would 
estimate a voter turnout in the range of 5% to an absolute maximum of 
10%. In my opinion, some district judges may be elected by as few as 
750 voters while other districts judges would be elected by no more 
than 2000 voters. The position of district judge in a county with more 
than 1.3 million registered voters is far too important to be filled by 
the vote of that small a number of voters. 

itis 
ANITA RODEHEAVER 

ER AFFIANT SAYETH NOT. 

  

SUBSCRIBED AND SWORN TO before me, the undersigned authority, on this 
ay of January, 1990. 

LW: babi AL iC 

  EAR i Notary Pubic, State of Teds 
SSR A BN 

. . ATTY Lod 

 



IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

  

  

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

Plaintiffs-Appellees, 

versus 

JIM MATTOX, Attorney General of the State of Texas, et al., 

Defendants, 

and HARRIS COUNTY DISTRICT JUDGE SHAROLYN WOOD, 

Intervenor-Defendant-Appellant. 

  

HARRIS COUNTY DISTRICT JUDGE SHAROLYN WOOD'S 
PETITION FOR EXPEDITED PERMISSION TO 

APPEAL UNDER 28 U.S.C. § 1292()b) 

  

PORTER & CLEMENTS 
J. Eugene Clements 
Evelyn V. Keyes 
3500 NCNB Center 
P.O. Box 4744 
Houston, Texas 77210-4744 

(713) 226-0600 

ATTORNEYS FOR APPELLANT 

HARRIS COUNTY DISTRICT JUDGE 

SHAROLYN WOOD  



  

II. 

A. 

B. 

C. 

TABLE OF CONTENTS 
  

The Standard of Proof of Vote Dilution 
Claims Under Thornburg v. Gingles...... «+ 
  

  

The District Court's Controlling 
conclusions ‘Of LaWiee.. see Berens vin'e vba 
  

  

Disputed Questions of Law Raised 
by the District Court's .Conclusions:..... 
  

  

A SUBSTANTIAL BASIS EXISTS FOR DIFFERENCES 

OF OPINION ON THE QUESTIONS OF LAW INVOLVED.. 

A. § 2 Of The Voting Rights Act Does Not 
Apply To The Judiciary And Would be 
Bnconstitutional 1f It Did S0.secccecevisse 

  

  

  

§ 2 Does Not Apply To Independent 
Overlapping County-Wide Judicial 
EE aC tI ON DE Ctr OES. vines vmis sis no visits inns 

  

  

  

Gingles 2 And 3 Are Not Proved By 
Abstract Statistical Inquiry With 
All Other Inquiry Being Irrelevant....... 

  

  

  

Unopposed Election Contests And 
White Versus White Contests Are 
Germane To The Statistical Analysis 
Of Vote DIIution Claim... eeossseoneovnnss 

  

  

  

  

The Concept Of One-Man, One-Vote 
Applies To Judicial EleChionG.v.seves esos 
  

  

The Pool Of Minority Class Members 
Eligible To Hold Judicial Office 
Rather Than The Pool Of Minority Voters 
Is The Appropriate Reference Point 
For Measuring Minority Success In 
JURICial ElectionS.ecesecs sre Mis sss ss vin sve 

  

  

  

  

  

  

The Court's Holding That Illegal 
Vote Dilution Exists In Harris County, 
Texas Judicial Races Is Clearly Erroneous 

  

  

  

® ® oo & 0° 0° 0° 0 

e © oo & oo oo 0 oo 

11 

14 

335 

15 

17 

20 

27 

30 

31 

34 

 



  

IV. AN IMMEDIATE APPEAL MAY MATERIALLY ADVANCE 
THE TERMINATION OF THIS LITIGATION 38 

V. “CONCLUSION 

 



  

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

  

NO. 
  

  

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

Plaintiffs-Appellees, 

versus 

JIM MATTOX, Attorney General of the State of Texas, et al., 

Defendants, 

and HARRIS COUNTY DISTRICT JUDGE SHAROLYN WOOD, 

Intervenor-Defendant-Appellant. 

  

HARRIS COUNTY DISTRICT JUDGE SHAROLYN WOOD'S 
PETITION FOR EXPEDITED PERMISSION TO 

APPEAL UNDER 28 U.S.C. § 1292(b) 

  

This case has been certified for Interlocutory Appeal under 

28 U.S.C. § 1292(b) by Order of the District Court dated January 

2, 1990 amending the Court's Memorandum Opinion and Order of 

November 8, 1989 (the "Opinion").—2/ A. “copy ©f the Order of 

November 8, as amended to include certification for expedited 

  

3/ The Opinion was previously amended to correct for clerical errors on 
November 14 and 27, 1989 and December 28,1989. 

 



  

interlocutory appeal is filed herewith as Exhibit "es N2/ 

Appellant Harris County District Judge Sharolyn Wood ("Judge 

Wood"), Defendant-Intervenor in the court below, therefore files 

this Petition for Permission to Appeal the District Court's Order 

under 28 U.S.C. §1292(b). At ithe same time, however, Judge Wood 

observes that she is also entitled to appeal as of right pursuant 

to 28 U.S.C. §1291(a)(l), since the district court's Order of 

January 2, 1990 enjoined the 

"calling, holding, supervising and certifying elections 
for State District Court Judges in Harris, Dallas, 
Tarrant, Bexar, Travis, Jefferson, Lubbock, Ector and 
Midland Counties under the current at-large scheme." 

Exhibit "£" at 5. Therefore, she. files this Expedited Petition 

for Permission to Appeal out of an abundance of caution and 

respectfully shows the Court the following: 

1. "FACTS 

This case was brought in the United States District Court 

for the Western District of Texas, Midland Division, by the 

League of United Latin American Citizens ("LULAC") and certain 

named black and Hispanic individuals against the Texas Attorney 

General Jim Mattox and other named state officials (the "State 

Defendants") challenging the election of state district judges in 

47 target counties in Texas pursuant to § 2 of the Voting Rights 

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

  

2/ All exhibits to this Petition and to Judge Wood's Emergency Application 
for Stay are bound together and filed separately as Judge Wood's 
Exhibits. 

 



  

prohibits. voting practices which deny members of protected 

classes the opportunity to participate in the political process 

and to elect representatives of their choice =a The Plaintiffs, 

who ultimately reduced the number of target counties to nine, 

including Harris County, sought a declaratory judgment that 

Texas' system of electing state district judges illegally diluted 

the votes of blacks and/or Hispanics in each of the counties, an 

injunction against all further district court elections in those 

counties under the present system, implementation of a remedial 

electoral system, costs and attorney's fees. By Order of the 

Court dated March 1, 1989, the Court permitted the Houston 

Lawyers' Association (the "HLA") to intervene as a Plaintiff on 

behalf of blacks in Harris County; it permitted certain named 

  

3/ (a) No voting qualification or prerequisite to voting or standard, 
practice, or procedure shall be imposed or applied by any State or 
political subdivision in a manner which results in a denial or 
abridgement of the right of any citizen of the United States to 
vote on account of race or color.... 

(b) A violation of subsection (a) of this section is established 
if, based on the totality of circumstances, it is shown that the 
political processes leading to nomination or election in the State 
or political subdivision are not equally open to participation by 
members of a class of citizens protected by subsection (a) of this 
section in that its members have less opportunity than other 
members of the electorate to participate in the political process 
and to elect representatives of their choice. The extent to which 
members of a protected class have been elected to office in the 
State or political subdivision is one circumstance which may be 
considered: provided, That nothing in this section establishes a 
right to have members of a protected class elected in numbers equal 
to their proportion in the population. 

42 U.S.C. § 1973 (West Supp. 1989). 

 



black individuals to intervene as Plaintiffs in Dallas County; 

and it permitted Judge Wood and Dallas County District Judge 

Harold Entz ("Judge Entz") to intervene, in their individual 

capacities only, as Defendants. 

A group of named Travis County Judges were also permitted to 

appear in their individual capacities only, while intervention of 

Midland County and a group of Midland County Judges was denied. 

Texas Attorney General Jim Mattox ("Mattox"), a named Defendant 

and counsel for the original Defendants (the "State Defendants"), 

strenuously opposed all efforts by state district judges to 

intervene as Defendants in their official Capacities on the 

ground that he represented them and would not permit their 

intervention. Mattox's efforts to prevent defense of this case 

by or on behalf of Texas' state district judges are set forth in 

detail in Harris County District Judge Sharolyn Wood's Response 

to Attorney General Mattox's Statement concerning Non-Partisan 

Elections and Supplement, a copy of which is filed herewith as 

Exhibit "i2". The Travis County District Judges subsequently 

withdrew their intervention when Mattox vigorously opposed their 

intervention in their official capacities only, a change which 

would increase the likelihood of insulation from possible 

personal liability for Plaintiffs' attorneys' fees. 

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

September 18, 1989. At trial the HLA put on the Plaintiffs’ 

entire case challenging the present judicial election system in 

Harris County, LULAC having dropped all claims on behalf Of  



  

| 6 

Hispanics in Harris County immediately prior to trial. The HLA 

based its case on statistical analyses of Harris County voting 

patterns and on the testimony of disappointed black candidates 

for state district judge in Harris County. 

Judge Wood defended the present system of electing state 

district judges in Harris County. She relied upon exhibits and 

the testimony of live, videotaped, and deposition witnesses which 

showed that judicial elections in Harris County are primarily 

determined by straight-ticket party voting and secondarily by a 

small number of discretionary judicial voters (15-20%) whose 

votes are influenced by the experience and credentials of the 

candidates, judicial preference polls, newspaper and other 

endorsements, publicity given the qualifications of the candi- 

dates, and successful county-wide campaign strategies. She also 

introduced evidence that racism plays no part whatsoever in 

Harris County judicial races and has not done so for at least 15 

years. 

On November 8, 1989, the district court entered in its 

Memorandum Opinion and Order including a declaratory judgment 

holding that Texas' system of electing state district judges 

illegally dilutes the votes of blacks and/or Hispanics in all 

target counties. In that Opinion, the court took ‘under 

advisement the question of a possible injunction against future 

judicial elections in the target counties. It also granted the 

State the opportunity to devise a remedial plan of its own in the 

November 13, 1989, special session of the Texas legislature 

 



  

previously called to consider worker's compensation; and it 

indicated that if no remedial plan were devised by the legisla- 

ture, it would consider allowing Defendants the opportunity for 

an expedited interlocutory appeal. Opinion at 93-94. On 

December 11, 1989, Governor Clements reported to the court that 

no consensus could be reached by the Texas legislature regarding 

a remedy in the affected counties, thus fulfilling the court's 

condition precedent to the filing of an interlocutory appeal. 

The district court apparently asked the Plaintiffs at the 

December 11 meeting to submit a remedial plan to it by Decem- 

ber 19, 1989. Upon hearing rumors that such a plan was being 

devised by the Texas Attorney General and the Plaintiffs, counsel 

for Judge Wood telephoned the clerk of the court on December 15, 

1989. The clerk informed counsel that no notice of proceedings 

had gone out but that the court had requested that the Plaintiffs 

submit an interim remedial plan by December 19 and that the 

Plaintiffs had indicated to the court that they were working on 

an agreed plan with Mattox, which they expected to file by 

Friday, December 22, 1989. The clerk also informed counsel that 

if any parties had objections to the agreed plan, those 

objections should also be filed by Friday, December 22, that is, 

simultaneously with the remedial plan itself. 

Upon confirmation of the rumors concerning the negotiations 

between the Plaintiffs and the Attorney General, who is charged 

by law with the task of representing the State Defendants, 

including all state district judges in their official capacities, 

 



  

Judge Wood filed a motion to stay all further proceedings in the 

district court and a motion for certification of the district 

court's Opinion for interlocutory appeal. 

On December 19, the Attorney General sent Judge Wood an 

agreed Proposed Interim Plan signed by himself and the Plain- 

tiffs. "A copy of that plan, which was subsequently filed with 

the district court and adopted almost in foto. by "the Court, is 

filed herewith as Exhibit "dl." Judge Wood asks this Court to 

take judicial notice that the signatures of all Defendants who 

actively participated in the defense of this suit, including 

those attorneys who presented the State Defendants case, are 

conspicuously absent from the "Remedial" Plan. Judge Wood filed 

her Objections to the Plaintiffs and Mattox's Plan on Decem- 

ber 22, 1989, the deadline set by the Court for such objection. 

A copy of those objections is filed herewith as Exhibit "42." 

In her objections to the Plaintiffs' and Mattox's "Remedial" 

Plan, Judge Wood pointed out that Mattox's "settlement" was 

entered without notice to her--despite Mattox's repeated 

insistence that he alone represented her and all other state 

district judges--and that it was in direct opposition to her 

interests, which, as her counsel, he was sworn to uphold. 

Judge Wood also wrote Mattox requesting that he disqualify 

himself from representing her or any of the State Defendants, and 

she attached that letter an an exhibit to her Response to 

Attorney General Mattox's Statement Concerning Non-Partisan 

Election and Supplement filed herewith as Exhibit "i2." In that 

 



  

Response Judge Wood also documented numerous other instances of 

dissatisfaction with Mattox's purported defense of this case; and 

she urged the district court to disqualify Mattox from represent- 

ing her, any of the other district judges, and any of the State 

Defendants because of his violation of the Texas Disciplinary 

Rules of Professional Conduct, specifically rules 1.02(a)(2) 

(settling against the wishes of the Client) and rule 1.06 

(conflict of interest). Judge Wood has received no response to 

her letter. 

Judge Wood also argued that the Attorney General's covert 

and overt activities in this case, as documented in her Response, 

constituted the very "collusion, nonfeasance or adversity of 

interest” deemed by the district court and by this Circuit to 

constitute grounds for holding that Mattox does not adequately 

represent the interests of Texas' state district judges. Exhibit 

"i2" at 13. Even as Judge Wood prepared to file that document, 

Mattox himself was announcing to the press that he had never 

represented the district judges in this case. 2 Makei "Judicial 

flap spawns oratory, not decision," Houston Chronicle, December 
  

30, 1989 at 21A, cols. 5-6, filed herewith as Exhibit nd 

Despite the vociferous opposition of numerous Defendants to 

Mattox's claims to their representation, examples of which are 

  

4/ Mattox's statements were made in response to a non-suit taken in a state 
district court case filed by two Harris County district judges protesting 
Mattox's betrayal of their interests in this case. 

 



filed herewith as Exhibit "d3" and as exhibits to Exhibit Ni2: 

the district court stated in its Order of January 2, "An Agreed 

Settlement was Entered into by and between the Plaintiffs and 

Defendants in. this matter. but ‘was not approved by some of the 

Intervenors." Order of January 2, 1990 at 4. Judge Wood submits 

that no "Agreed Settlement" was reached because no one who 

genuinely represented the defense of this suit was consulted 

about any agreement with the Plaintiffs and that Mattox indeed 

represented only himself in this "Agreed Settlement" with the 

Plaintiffs in gross conflict with his duties as Attorney General 

and with the Texas Disciplinary Rules of Professional Conduct. 

The Interim Plan, which was, in essence, devised by the 

Plaintiffs and Mattox and adopted in large part by the district 

court, bears little relationship to the evidence presented at 

trial, has been hastily foisted upon the State after secret 

negotiations to which the genuine Defendants were not privy, and 

effectively dismantles Texas' system for electing state district 

judges in its most populous counties and installs in its place a 

jerry-built system designed to maximize minority ability to 

select judges while disregarding the most fundamental interests 

of due process, equal protection of the laws, the requirements 

and purpose of the Voting Rights Act itself, the Constitution and 

statutes of the State of Texas, and the rights and interests of 

Texas' state district judges and voters. 

The specifics of the Interim Plan adopted by the District 

court are set forth in Defendant-Intervenor Harris County  



District Judge Sharolyn Wood's Application for Stay 

incorporated herein by this reference. Judge Wood would merely 

note here that this destructive and unconstitutional Plan was 

adopted by the district court even though that court admitted in 

its Opinion and has certified for purposes of this appeal that 

this case contains extremely important controlling issues of law 

as to which there is a substantial basis for difference of 

opinion. Opinion at 93. 

II. STATEMENT OF CONTROLLING ISSUES OF LAW 

The district court's opinion raises fundamental questions 

about the applicability of the Voting Rights Act, 42 U.S.C. 

§ 1973," to judicial ‘elections, ‘the constitutionality of such 

application, the proper standard of procf. for Voting Rights Act 

violations, and the adequacy of the Plaintiffs’ proof of. vote 

dilution, at least in Harris County. 

A. The Standard of Proof of Vote Dilution Claims 
Under Thornburg v. Gingles. 
  

  

The United States Supreme Court and the Fifth Circuit hold 

that the appropriate test of vote dilution claims under the 

Voting Rights Act is a "totality of the circumstances" test based 

upon a practical, intensely local inquiry peculiarly dependent 

upon the facts of the case. Thornburg v. Gingles, 478 U.S. 30, 
  

106 S.Ct. 2752, 2781 (1986); Overton v. City of Austin, 871 F.24 
  

529, 832 (5th "Cir. 1989), That test employs as a threshold 

inquiry three factors set forth in Gingles: (1) demonstration by 

the minority that: it is sufficiently large and geographically 

compact to constitute a majority in a single-member district  



  

(Gingles 1); (2) political cohesiveness of the minority (Gingles 

2Y: andi (3) sufficient white bloc voting to enable the white 

majority usually to. defeat the minority's candidate of choice 

(Gingles 3). Gingles, 106 S.Ct. at 2766. The three "Gingles 

factors" are augmented by a searching, practical inquiry into 

such typical local factors as (1) historical discrimination in 

the challenged political subdivision; (2) racially polarized 

voting; (3) use of voting practices or procedures that enhance 

the opportunity to ‘discriminate; (3) exclusion: of minority 

oti dates from slating processes; (5) the extent that the 

effects of past discrimination hinder the minority's ‘ability to 

participate in the political process; (6) the use of racial 

appeals in political campaigns; (7) the extent to which members 

of the minority group have been elected to public office in the 

jurisdiction; (8) responsiveness of elected officials to the 

particularized needs of the minority; and (9) tenuousness of the 

policy underlying the contested practice or structure. Gingles, 

106 S.Ct. at 2763.->/ 

B.."“The Digtrict Court's Controlling Conclusions 
of Law. 
  

The district. court failed” to apply the totality of the 

circumstances test correctly, if at all, and improperly found 

that the Plaintiffs carried their burden of proof of vote 

  

2/ These typical factors in proving vote dilution are often referred to as 
the "Zimmer factors" after the case of Zimmer v. McKeithen, 485 F.2d 1297 

  

(5th Cir. 1973), in which they were first set forth in detail. 

 



dilution ‘undey that "test. Essentially, the Court rested its 

  

declaratory judgment on the following conclusions of law: 

1. Section 2 of the Voting Rights Act applies to the 
Judiciary. Opinion at 81 (citing Chisom v. Roemer, 839 
F.2d 1056 (5th Cir. 1988), cert. denied sub nom Chisom 
v. Edwards, 109 S.Ct. 310 (198%9)). 6/ 

  

  

  

2. Section 2 applies equally to the election of state 
district judges, who serve as independent decision- 
makers, as it does to the election of appellate judges, 
who serve in a collegial body; Chisom's extension of 
§ 2 to judicial elections was not meant to be limited 
to collegial judicial bodies. Opinion at 81 and n. 32. 

3. Political cohesiveness of the minority (Gingles 2) and 
the ability of the white majority usually to defeat the 
minority's preferred candidates (Gingles 3) are usually 
established by statistical evidence of racially 
polarized voting. Opinion at 85. 

4.. Racial bloc voting can be established by a type of 
abstract statistical inquiry called "bivariate regres- 
sion analysis." Opinion at 8 n. 4. 

5. Party affiliation is irrelevant under the controlling 
law. Opinion at 80. 

6. The addition of irrelevant variables to regression and 
statistical analysis distorts the equation and yields 
results that are indisputably incorrect under § 2. 
Opinion at 80. 

7. Unopposed minority candidate election contests and 
white versus white contests are not germane in this 
Circuit to the statistical analysis of Voting Rights 
Act violations. Opinion at 80-81. 

8. The concept of "one man, one vote" does not apply to 
judicial elections. Opinion at 15. 

  

6/ The Court had previously held that the Voting Rights Act applies to 
judicial elections and violates neither the principle of separation of 
powers nor the fourteenth amendment guarantee of equal protection of the 
laws. Order entered May 3, 1989, denying Judge Wood's Motion to Dismiss 
and Motion for More Definite Statement. The relevant documents 
discussing these issues are filed herewith as Exhibit "h." 

 



  

held: 

The “eligible pool of minority voters, rather than 
eligible minority lawyers, is the appropriate reference 
point for evaluating the extent of minority electoral 
success. Opinion at 74-75. 

In respect specifically to Harris County, the district court 

10. 

11. 

12. 

13. 

The data set relied upon by Plaintiffs’ expert 
Dr. Richard Engstrom to analyze Harris County elec- 
tions, consisting in 1980 census counts of total black 
population by precinct and computer printouts of 1982, 
1984, 1986, and 1988 precinct voter registration 
estimates supplied Dr. Engstrom by Dr. Richard Murray, 
a non-testifying expert whose data was not authenticat- 
ed in any way (Opinion at 22) and which had been 
written over, Struck out or ‘crossed through, was 
reliable data on which to base statistical analysis of 
racially polarized voting and racial bloc voting. 
Opinion at 27. 

Testimony from Plaintiff's expert, ‘Dr. Engstrom, that 
(1) primary elections in Harris County need not be 
addressed because they do not filter out the candidate 
of choice of black voters; (2) that uncontested races 
do not assist researchers in their analysis; (3) that 
the appropriate comparison in Voting Rights cases is 
black and non-black; (4) that, although not controlled 
for, the votes of Asian-Americans would be included in 
the percentages of non-black votes; and (5) that the 
range of absentee votes in Harris County never rose 
above 13.6% was adequate to address Defendant Wood's 
concerns about absentee voting, the influx of Vietnam- 
ese population into Harris County and traditionally 
black precincts and failure of Dr. Engstrom's analysis 
t0 reflect black’ candidate successes in primary 
elections and uncontested races. Opinion at 27. 

Dr. Engstrom's testimony regarding correlation and 
regression analysis of 17 selected races proves that 
white bloc voting exists in Harris County and: is 
sufficiently strong generally to defeat the choice of 
the black community. Opinion at 28-30. 

The testimony of Judge Wood's witness, Judge Mark 
Davidson, that race and ethnicity are irrelevant to 
actual voting behavior as it relates to the judiciary 
in Harris County, while credible, is irrelevant under 
controlling law. Opinion at 31. 

 



  

14. Defendant Wood's contention that black preferred 
candidates lost their judicial races because of failure 
to win the Harris County bar or preference Poll ‘or 
obtain the Gay Political Caucus endorsement is legally 
incompetent. Opinion at 31. 

15. In addition, in its brief survey of the nine Zimmer 
factors, the district court concluded that among eight 
factors typical of racial discrimination in voting, 
Harris County exhibited only three: (1) historical 
discrimination, which the court considered indisputable 
in all counties; (2) illegal "enhancement" of the 
opportunity to discriminate, which the court held was 
established by majority voting and the fact of county- 
wide elections in a large county; and (3) lack of black 
electoral success in judicial elections, which was 
established by the fact that of 17 black candidates for 
the office of state district judge in races selectively 
analyzed by the plaintiffs' expert blacks won only 2. 
Opinion at 69-77. The court found no evidence of dis- 
criminatory slating, racial appeals in campaigns, or 
lack of responsiveness of Harris County district judges 
to the needs of minorities; and it concluded that the 
reasons for county-wide judicial election districts are 
neither tenuous nor intentionally discriminatory. Id. 
(The ninth Zimmer factor, racially polarized voting, is 
subsumed under the Gingles factors and was held by the 
Court to be proved by abstract statistical analysis.) 

The questions of law listed above are controlling in that 

they provide the conceptual basis for the district court's 

determination that the present system of electing state district 

judges dilutes the votes of minorities in the targeted counties, 

and, in particular, in Harris County, in violation of § 2 of the 

Voting Rights Act. 

C. Disputed Questions of Law Raised by the 
District Court's Conclusions. 
  

  

The controlling conclusions of law stated by“ ithe district 

court raise the following questions of law for which there are 

substantial grounds for differences of opinion, and which Judge 

Wood urges were wrongly decided: 

 



  

i. Whether § 2 "of the Voting Rights Act applies to the 
Judiciary; and, if so, whether it is constitutional if 
thus applied? 

2. Whether § 2 applies to independent overlapping county- 
wide election districts? 

3. Whether Gingles 2 and 3 are proved by abstract statis- 
tical inquiry with all other inquiry being irrelevant? 

4. Whether unopposed election contests and white versus 
white contests are germane to the statistical analysis 
of vote dilution claims? 

5. Whether the concept of one-man, one-vote applies to 
judicial elections? 

6. Whether the pool of minority class members eligible to 
hold judicial office or that of minority voters is the 
appropriate reference point for measuring minority 
success in judicial elections? 

7. Whether the court's holding that illegal vote dilution 
exists "in Harris County, Texas judicial «races is 
clearly erroneous? 

III. A SUBSTANTIAL BASIS EXISTS FOR DIFFERENCES 
OF OPINION ON THE QUESTIONS OF LAW INVOLVED. 

As the court itself acknowledged in its Opinion, "This area 

©f law is not an icy certainty." Opinion ‘at 93. Indeed, the 

court indicated that the questions involved were "difficult legal 

questions" on which "the most distinguished experts" may dis- 

agree. Opinion at 93 (quoting Chief Judge Charles Evans Hughes' 

1936 address to the American Law Institute). In Judge Wood's 

view, each of the issues of law listed above was wrongly decided 

for the following reasons: 

A. § 2 Of The Voting Rights Act Does Not Apply To The 
Judiciary And Would Be Unconstitutional If It Did So. 
  

  

The Court holds that § 2 of the Voting Rights Act applies to 

the judiciary. Opinion at 81. While Defendant Wood acknowledges 

 



that the Fifth Circuit so held in Chisom v. Roemer, 839 F.2d 1056 
  

(5th Cir. 1988), cert, denied sub nom. Chison V. Edwards, 10¢ 
  

S.Ct. 310 (1989), the Supreme Court has never decided this issue. 

Judge Wood urges en banc review of this important issue. As 

Defendant Wood argued below in her Motion to Dismiss and Motion 

for a More Definite Statement, application of the Voting Rights 

Act to an independent elected judiciary imperils the separation 

of powers principle of the Texas Constitution and the Constitu- 

tion of the United States and violates the equal protection 

clause of the fourteenth amendment. In violating the principle 

of separation of powers it also violates the principle of 

federalism, the Guaranty Clause, art. IV, § 4, and the tenth 

amendment to the Constitution. 

Section 2 of the Voting Rights Act expressly assures the 

right of minorities "to participate in the political process and 

  

to elect representatives of their choice." 42 U.S.C. § 1973 (b) 

(emphasis added). At the same time, it is an axiom of law that 

"Judges do not represent people, they serve people." Wells v. 
  

Edwards, 347 F.Supp. 453, 454-455 (N.D. La. 1972), aff'd 409.U.s. 

1095, 93 %s.Ct. 904+ {1973).. Thus’ by definition, judges are not 

"representatives" of any constituency or special interest group. 

Judge Wood submits that the holding in Roemer that judges are 

representatives is without support elsewhere in the law and is 

inconsistent with the principles of federalism and the separation 

of powers, while the holding in Wells that judges are impartial 

servants of the people and not representatives fairly presents  



  

traditional legal thinking and is consistent with those princi- 

ples. 

In the instant case, the application of the Voting Rights 

Act to the Texas judiciary with its concomitant concept that 

judges are "representatives" of racial groups would have the 

potential effect of outlawing the citizenry's right to .an 

appointed judiciary, since an appointed judiciary does not 

satisfy the Voting Rights Act's requirement that protected 

classes be ensured the right "to elect representatives of their 

choice." 42 U.S.C. § 1973(b) (emphasis added) . —2/ Thus, if the 

Voting Rights Act is applied to the judiciary, the entitlement of 

protected classes to "representative" officials, even judges, is 

given hegemony over all other constitutional rights and guaran- 

ties. For the foregoing reasons, therefore, Judge Wood believes 

that there is substantial basis for a difference of opinion as to 

whether the Voting Rights Act applies” to. the judiciary ‘and 

whether, if it does so, it is constitutional. 

B. § 2 Does Not Apply To Independent Overlapping County- 
Wide Election Districts. 
  

  

The district court holds "that § 2 applies equally to the 

election of state district judges, who serve as independent 

  

7/ The Plaintiffs and Mattox have already indicated that they would not 
accept a merit appointment plan as a remedy for dilution of minority 
votes in this case, and the question has been raised whether any such 
remedial plan could receive Justice Department approval if passed by the 
Texas legislature. (Texas is subject to § 5 of the Voting Rights Act, 42 
U.S.C. § 1973, which requires such scrutiny of state-promulgated 
redistricting plans.) 

 



  

| 4 

decision makers, as it does to the election of appellate judges, 

who serve in a collegial body. Opinion. at "81 and n. 32. "The 

court cites no authority for its conclusion. However, Judge Wood 

submits that, in Texas, state district judges each run in 

overlapping county-wide single-member districts and that such   

single-member districts are not subject to the Voting Rights Act. 

The election of independent judges from single-member 

districts is distinguishable both in form and purpose from the 

election of representatives under an at-large system. In ‘an 

at-large system representatives of interest groups, or constitu- 

encies, are elected to a collegial body in which their collabora- 

tion and debate is presumed to result in the best compromise 

avallable to accommodate the differing interests that they 

represent. The application of the Voting Rights Act to systems 

in which representatives are elected at large to represent the 

interests of their constituencies makes sense, therefore, to 

force single-member districts when protected minorities are 

actually prohibited by racial discrimination from electing 

representatives of their choice to at-large collegial bodies. 

Not only is the rationale of promoting the compromise of 

conflicting group interests alien to the concept of the judicia- 

ry, but, perhaps even more importantly, the election of judges 

from county-wide overlapping single-member districts serves 

fundamental principles which are irrelevant to the election of 

representatives of interest groups. The county-wide single- 

member judicial election system--and that system alone=--insures 

 



  

that each judge has jurisdiction over all suits brought in the 

county and that each judge is elected by every citizen in the 

county. The application of the Voting Rights Act to that system 

to force the election of judges from mini-districts or sub- 

districts drawn on racial lines entails one of two things: 

either (1) the courts whose judges are elected from mini- 

districts must lack jurisdiction and proper venue over parties 

resident in all parts of the county other than the mini-district 

and all causes of action arising in other parts of the county: or 

(2) the counts must retain jurisdiction and venue over the entire 

county, although only a small percentage of the citizens of the 

county are entitled to vote for those judges, thereby ensuring 

the disenfranchisement of the vast majority of citizens in the 

election of the vast majority of the judges who have plenary 

power over them. 

Thus the confusion of overlapping county-wide single-member 

judicial districts with at-large districts and the consequent 

dismemberment of county-wide judicial districts has the necessary 

effect of creating either (1) a jurisdictional nightmare in which 

equal protection of the laws under the fourteenth amendment and 

the right to a jury drawn from the entire community under the 

sixth amendment are sacrificed to the promotion of the voting 

rights of certain protected minorities or (2) a flagrantly 

unconstitutional system under which the constitutional rights of 

the vast majority are sacrificed to the statutory rights of the 

few. 

 



  

Moreover, while no authority of which Judge Wood is aware, 

other than the district court in this case, holds that the Voting 

Rights Act applies to county-wide single-member districts, there 

is authority for the proposition that the Voting Rights Act does 

not apply to any single-member county-wide district. In Butts v. 
  

City of New York, 779.7.24 141, 149 (2é&- Cir. 1985), +he Second   

Circuit held, 

We cannot ... take the concept of a class’ impaired 
opportunity for equal representation and uncritically 
transfer it from the context of elections for multi- 
member bodies to that of elections for single-member 
offices. There can be no ‘equal opportunity .for 
representation within an office filled by one person. 

Judge Wood agrees with the Second Circuit's holding and urges 

this Circuit to adopt that holding as a matter of first impres- 

sion in ‘the Fifth Circuit, reversing the district court. 

C. Gingles 2 And 3 Are Not Proved By Abstract Statistical 
Inquirv With All Other Inquirv Being Irrelevant. 
  

  

The district court held that the second and third of the 

three "Gingles factors" relied on to establish vote dilution -- 

political cohesiveness of the minority (Gingles 2) and the 

ability of the white majority usually to defeat the minority's 

preferred candidate (Gingles 3) mf --are usually established by 

statistical evidence of racially polarized voting. Opinion at 

85. The district court further held that Gingles 3 can be 

established by a type of abstract statistical inquiry called 

  

8/ See supra at 9. 
  

 



  

"bivariate regression analysis" and that all other factors, 

including party affiliation, are irrelevant under the controlling 

law and yield results that are indisputably incorrect under § 2. 

Opinion at 85, 8, n. 4, and 80. It then proceeded to disregard 

all Defendants' evidence as to the practical local causes of 

electoral success in district judge elections--including Judge 

Wood's evidence that district judge elections in Harris County 

are actually decided primarily by straight ticket party voting 

and secondarily by discretionary judicial voting--and to find 

that the bare statistical evidence offered by the Plaintiffs 

proved illegal vote dilution in all nine target counties. 

As Defendant Wood argued in her Post-Trial Brief and in her 

Reply to Plaintiffs' and Plaintiff-Intervenors Houston Lawyers’ 

Association's Post-Trial Brief, not - one justice of the Supreme 

Court in Gingles supports the conclusion of the district courtiin 

this case that all that is necessary to prove illegal vote 

dilution is statistical evidence of minority losses in selected 

white/minority races. The Supreme Court justice who comes 

closest to approving the standard of proof of vote dilution used 

by the district court is Justice Brennan, writing for a minority 

of the Court in a plurality section of Gingles. 

In the ninority section of his opinion in Gingles, cited 

with approval by the district court in this case, Justice Brennan 

excluded causation and intent from the proof of vote dilution, 

stating, 

It is the difference between the choices made by blacks   

and whites--not the reasons for that difference--that 

 



results in blacks having less opportunity than whites 
to elect their preferred representatives. 

£78 U.S, at 63, 106 S.Ct. ‘at i2773 (emphasis in original); see 

Opinion at 8. However, in contrast to the district court. inthis 

case, Justice Brennan then went on to declare that the race of 

the candidate was irrelevant to proof of vote dilution, stating,   

Clearly, only the race of the voter, not the race of 
the candidate, is relevant to vote dilution analysis. 

Gingles, 478 U.S. at 68, 106 S.Ct. at 2775. By Justice Brennan's 

criterion, therefore, minority voters have no valid claim of vote 

dilution when they are able to elect the representatives they 

prefer, considering the race of the representative as irrelevant. 

Applying Justice Brennan's standard of proof of vote 

dilution to ‘Harris County, it dis ocbvious that black votes in 

Harris County are not diluted. At trial Judge Wood presented 

evidence from the Plaintiffs' own witnesses that blacks in Harris 

County pull the straight Democratic party lever approximately 95% 

of the time regardless of the race of the candidates. See, e.qg., 
  

Defendant Wood's Trial Exhibits No. 55, Excerpts of the 

Deposition of Francis L. Williams at 22; No. 53, Excerpt of the 

deposition of Bonnie Fitch at 20. Judge Wood also presented 

evidence that Democrats have succeeded in electing 59% of Harris 

County's state district judges. See Defendant Wood's Trial 

Exhibit No. Yl. Therefore, under Justice Brennan's pure 

statistical standard of proof of vote dilution, it necessarily 

follows that blacks have succeeded in electing the candidate of 

their choice--i.e., the Democratic candidate--59% of the time.  



  

® » 

The Plaintiffs argued and the district court agreed that blacks 

constitute only 19.7% of the total population of Harris County, 

and 18.2% of the voting age population. Opinion at 14. There- 

fore, the proportion of candidates preferred by blacks who have 

been elected state district judge in Harris County far exceeds 

the proportion of blacks in the electorate and blacks can have no 

valid complaint of vote dilution using Justice Brennan's test. 

The district court, however, insisted that the race of the 

candidate matters--not just the race of the voters--in direct   

violation of the standard of proof approved by Justice Brennan, 

and therefore it excluded from its statistical analysis all races 

other than white/minority races. Opinion at 80-81. The result 

is a skewed analysis of selected races which virtually assures 

that only races in which blacks ran and lost count as relevant 

races and which does not meet Justice Brennan's criterion for 

appropriate statistical analysis, hence would not be acceptable 

to Justice Brennan or that minority of the Supreme Court who 

agreed with him in Gingles. 

The district court's standard of proof fares even worse 

  

under the majority views of the Supreme Court, since a majority 

of the Supreme Court expressly rejected the view that the second 
  

and third Gingles factors can be established by bivariate 

regression analysis and that all other factors are irrelevant, as 

«04 ‘uw 

 



  

the district court held. ~2f Opinion. at 85." 8. n.4 ‘and’ 80. 

Writing only for himself, Justice White expressly rejected Part 

III-C of the Gingles opinion, in which Justice Brennan set forth 

bivariate regression analysis as proof of Gingles'. 2 and. 3, 

stating his disagreement that the crucial factor in identifying 

polarized voting is the race of the voter and that the race of 

the candidate is irrelevant, and stressing both his doubts that 

this is what Congress has in mind in amending § 2 of the Voting 

Rights" Act "in 1982 10/ and the irreconcilability of Justice 

Brennan's standard of proof of vote dilution claims with the 

discussion in Whitcomb v. Chavis, 403 U.S. 124, 149-160, 91 S.Ct.   

1858, 1872-1878 (1971), which Justice White himself had authored. 

Cingles, 106'S.Ct. at 2783. 

As Judge Wood argued at trial and in her Post-Trial Brief 

for the district court, Justice White's reference to Whitcomb is 
  

particularly appropriate in regard to the instant case because in 

Whitcomb, as here, the elections at issue were partisan elections   

in which black voters invariably voted for the Democratic 

  

9/ As the district court acknowledged, "[T]he majority which agreed with 
Justice Brennan [in Gingles] that voter dilution was demonstrated by the 
impact or results of the Zimmer factors and the Gingles threshold 
analysis deserted him when he came to the proof of the second and third 
Gingles factors." Opinion at 8, n.7. 

10/ Gingles is the only Supreme Court opinion that has interpreted the Act as 
amended. The Act was amended, as Justice O'Connor observed in her 
dissenting opinion in Gingles, to codify the "results" test employed in 
Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858 (1971) ‘and Vhite wv,   

Regester, 412 U.S. 755, 93 8.Ct. 2332 (1973). 106 $.Cts at 2790, 2783. 

 



  

candidate and (in contrast to Harris County) invariably lost. In 

Whitcomb, the Supreme Court held that invidious discrimination   

does not result from the loss of elections by Democrats favored 

by blacks absent evidence that blacks are denied access to the 

political system. Whitcomb, 91 S.Ct. at 1874-7¢.1L/ 
  

Justice O'Connor, writing for four members of the Court, 

also expressly rejected Justice Brennan's test for vote dilution. 

106 S.Ct. at 2790. Unlike Justice White, however, Justice 

O'Connor did not reject bivariate regression analysis so long as 

it was admitted "solely to establish that the minoritv group is 

politically cchesive and to assess its prospects for electoral 

success." Ida at 2793, However, she diéd reject Justice 

Brennan's position that evidence that explains divergent racial 

voting patterns is irrelevant. id. In her view, such evidence 

"would seem clearly relevant in answering the question whether 

bloc voting by white voters will consistently defeat minority 

candidates." S48. In other words, assuming that the three 

Gingles factors are used as part of the proof of vote dilution 

under the totality of the circumstances test, Justice O'Connor 

would allow the results of bivariate regression analvsis to be 

  

1/ The district court also observed that the issue of partisan voting was 
before the Supreme Court in Gingles and that the Court had no difficulty 
concluding that voting polarized along racial, not partisan, lines. 
Opinion at 80 d(citing Gingles, 478 U.S. at 61-62). The district court 
is incorrect. 1ts citation ie to "Part I1I.C of Gingles, Justice 
Brennan's minority opinion which was rejected by the majority of the 
Court as argued in this section. 

 



  

admitted to show political cohesion (Gingles 2), but she would 

also admit evidence of the causes of racially divergent voting 

patterns to determine whether any racially polarized voting was 

legally significant, i.e. to prove Gingles 3. In her view, "The 

overall vote dilution inquiry neither requires nor permits an 

arbitrary rule against consideration of all evidence concerning 

voting preferences other than statistical evidence of racial 

voting patterns." 1d. at 2793. 

Thus, both Justice White and the four members of the Court 

Peoratented by Justice O'Connor's opinion in Gingles agree that 

bivariate regression analysis is either unnecessary or insuffi- 

Cilent to establish Gingles 2 and 3; and those same five members 

  

of the Court agree that Whitcomb, which considers partisanship 

among other factors in determining whether illegal vote dilution 

exists, brings appropriate considerations to the determination of 

vote dilution claims. See n. 10 supra. Moreover, the district 

court's holding that all other factors besides bivariate regres- 

sion analysis are irrelevant to proof of Gingles 2 and 3 sharply 

contrasts with the observation of the Fifth Circuit that neither 

the majority nor the dissenters in Gingles adopted a "talismanic 

test" for § 2 violations and that the determination of illegal 

vote dilution must rest upon a "fact-bound, intensely local 

inquiry." Overton v. City of Austin, 871 F.2d 529, 533 {5th Cir. 
  

1989); see also Monroe v. City of Woodville, Miss., 881 F.2d 
  

1327, 1329-30 (5th Cir. 1989). 

 



  

D. Unopposed Election Contests And White Versus White 
Contests Are Germane To The Statistical Analysis Of Vote 
Dilution Claims. 

  

  

  

The district court held that unopposed minority candidate 

election contests and white versus white contests are not germane 

in this circuit to the statistical analysis of Voting Rights Act 

violations. Opinion at 80-81. This holding expressly contra- 

dicts the position of Justice Brennan in Gingles, which the 

instant Court otherwise adopts, in that Justice Brennan held that 

for purposes of proving illegal vote dilution, "Clearly, only the 

race of the voter, not the race of the candidate, is relevant." 

Gingles, 106 S.Ct. at. 2775; see supra at 22... 1t also leads the   

district court to approve a statistical test of illegal vote 

dilution, unique to itself, which lacks all scientific validity 

in two ways: (1) it expressly excludes virtually all races in 

which minority voters express a preference~-i.e., all races in 

which no minority candidate runs but in which minority voters 

vote; all races in which minorities run unopposed; all races in 

which minorities run in the "wrong" party (these are considered 

anomalies); all races that fall outside selected years (such as 

the 1978 Harris County district judge races in which two black 

candidates ran in contested races for state district judge and 

won, so that their subsequent unopposed races do not count); all 

primary races (dominated by blacks in the Democratic Party in 

Harris County); and (2) it expressly rejects all factors other 

than race as explanatory of voting patterns, even when there is 

credible evidence that race was not a consideration at all in 

 



actual practical local voting practices. In these ways "white" 

bloc voting of racial preferences necessarily "explains" the 

result every time a minority loses (since every voter except the 

statistically expected number of minority voters is a "white" 

voter) and "cross-over" voting necessarily explains the result 

every time a minority candidate wins. Furthermore, "white bloc 

voting" inevitably "exists" because most races have been careful- 

ly ‘excluded. This type of "scientific. . analysis." which is 

guaranteed to produce the desired results, is the antithesis of 

sound scientific inquiry and contradicts the searching, practi- 

cal, fact-intensive inquiry mandated by the Supreme Court. 

The dissents of Justices White and O'Connor in Gingles both 

evince an awareness (still inchoate in those opinions) that 

reliance ion this "type of statistical analysis to prove vote 

dilution claims is deeply flawed, unscientific and indeed 

self-fulfilling as a standard of proof of voting discrimination. 

See 106 S.Ct. at 2783-2796. It remained, however, for Judge 

Higginbotham of this Circuit to point out clearly and succinctly 

the pseudo-scientific character of "proof" by bivariate regres- 

sion analysis in his special concurrence in Jones Vv. City of 
  

Lubbock, 730° F.2d. 233, 234-235 (Sth = Cir. 1984). Judge 

Higginbotham wrote: 

The inquiry [in vote dilution cases] is whether race or 
ethnicity was such a determinant of voting preference 
in the rejection of black or brown candidates by a 
white majority that the at-large district, with its 
components, denied minority voters effective voting 
opportunity. In answering the inquiry, there is a risk 
that a seemingly polarized voting pattern in fact is 
only the presence of mathematical correspondence of  



  

race to loss inevitable in such defeats of minority 
candidates. The point is that there will almost always 
be a raw correlation with race in any failing candidacy 
of a minority whose racial or ethnic group is as small 
a percentage of the total voting population as here. 
Yet, raw correspondence, even at high levels, must 
accommodate the legal principal that the amended Voting 
Rights Act does not legislate proportional representa- 
tion. More complex regression study or multi-variate 
mathematical inquiry will often be essential to gauge 
the explanatory power of the variables necessarily 
Present in.-a ‘political race. Nor will math models 
always furnish an answer. A healthy dose of common 
sense and intuitive assessment remain powerful compo- 
hents to. this critical factual inquiry.... In sum, 
detailed findings are required to support any conclu- 
sions of polarized voting. These findings must make 
plain that they are supported by more than the inevita- 
ble by-product of a losing candidacy in a predominantly 
white voting population. Failure to do so presents an 
unacceptable risk of requiring proportional representa- 
tion, contrary to congressional will. 

The proof in this case has given me concern. 
Little more has been shown than that the percentage of 
votes for minority candidates in any given precinct 
enjoyed a mathematical correspondence with the percent- 
age of minorities living in the precinct.... 

The most striking aspect of Dr. Brischetto'sx2/ 
study is that no other variables than race or ethnicity 
were tested. In other words, Dr. Brischetto did not 
test for other explanatory factors than race or 
ethnicity as intuitively obvious as campaign expendi- 
ture, party identification, income, media use measured 
by cost, religion, name identification, or distance 
that a candidate lived from any particular precinct. 
There are well established statistical methods, such as 
step-wise multiple regressions, to test wfor the 
relative importance of such multiple factors. Signifi- 
cantly, the inference of bloc voting from this model 
builds on an assumption that race or national origin is 
the only explanation for the correspondence. 1t 

  

12/ Expert witness for the plaintiffs in Jones as well as in the instant 
case. 

 



  

ignores the reality that race or national origin may 
mask a host of other explanatory variables. 

By modelling his study so simply in a situation 
where minority voters voted overwhelmingly for minority 
candidates, Dr. Brischetto's study inevitably showed 
polarized voting. 

Jones, 730 .F.2d at 234-235. Judge Higginbotham's concurrence in 

Jones 1s sufficient by itself to establish that there are 

substantial grounds in this Circuit for disagreement with the 

district court on the proof of vote dilution claims. 

E. The Concept Of One-Man, One-Vote Applies To Judicial 
Elections. 
  

  

The district court held that the concept of "one man, one 

vote" does not apply to judicial elections. This rule was 

established in Wells v. Edwards, 347 F.Supp. 453 (M.D. La. 1872), 
  

as indicated supra at 455. Specifically, that court reasoned, 

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

347 F.Supp. at 455. When the Voting Rights Act, which applies 

expressly to "representatives," is applied to the judiciary, as 

it was by the district ‘court .in this case, Wells v. Edwards 
  

ceases to be relevant and the one-man, one-vote principle estab- 

lished in Reynolds v. Sims." 377 U.S. 533,.84 S.C. 1362 (1953),   

and extended to all elected representatives by Board of Estimate 
  

of City of New York wv, Morris, 109 S.Ct. 1433. 1437 (1989), 
  

becomes the relevant standard. The law cannot have it both ways: 

both that judges are "representatives" under the Voting Rights 

Act and that the one-man, one-vote principle does not apply to 

 



  

them because they are not representatives but servants of the 

people, especially in a case, like the instant one, brought, to 

force redistricting and thus fully within the ambit of Reynolds. 
  

The district court's conclusion that the one-man, one-vote 

principle does not apply to judicial elections is clearly subject 

to question. 

F. The Pool Of Minority Class Members Eligible To Hold 
Judicial Office Or The Pool Of Minority Voters Is The 
Appropriate Reference Point For Measuring Minority 
Success In Judicial Elections. 

  

  

  

  

The district court also held that the pool ‘of "minority 

voters, rather than the pool of minority class members eligible 

for: judicial ‘office, is the appropriate reference point for 

evaluating the extent of minority electoral success in judicial 

elections. ‘Opinion at 74-75. This is patently a standard for 

measuring electoral success in terms of shortfall from propor=- 

tional representation and, as Justice O'Connor pointed out in her 

Gingles opinion, 478 U.S. at 06, +106 S.Ct at 2780. it is 

inconsistent with the express proviso in § 2 which states 

That nothing in this section establishes a right to 
have members of a protected class elected in numbers 
equal to their proportion in the population. 

42 U.S.C.'§ 1973(Db). 

Moreover, a much more appropriate standard has recently been 

adopted by the Supreme Court, at least in Title VII cases, for 

measuring minority success in attaining positions requiring 

special qualifications. In such cases the Supreme Court has held 

that the relevant statistical pool for purposes of demonstrating 

discriminatory exclusion is the number of members of the minority 

 



  

class qualified to undertake the particular task. City of 
  

Richmond v..J.A. Crosson Co.., 109 s.CL: 706, 725 (1989); Wards   

Cove v. Atonio, "108:-s.Ct. 21158, 2122 (1989). This concept cries   

out for application to judicial election cases, assuming without 

admitting, that the Voting Rights Act applies to judicial 

elections. 

The Texas Constitution imposes qualifications on candidates 

for judicial office, unlike candidates for the state legislature 

or other "representative" positions. Specifically, the Texas 

Constitution requires that 

For (each district there shall be elacted by the 
qualified voters thereof, at a General Election, a 
Judge, who shall be a citizen of the United States and 
of this State, who shall be licensed to practice law in 
this State and shall have been a practicing lawyer or a 
Judge of a Court in this State, or both combined, for 
four (4) years next preceding his election, who shall 
have resided in the district in which he was elected 
for two (2) years next preceding his election, who 
shall reside in his district during his term of office, 
who shall hold his office for the Period of four (4) 
years, 

Tex. Const. of 1876 art. 5 § 7a. These constitutional require- 

ments for the office of state district judge in Texas, considered 

in light of the small number of Hispanics and blacks who meet 

those qualifications, as well as the small number of minority 

candidates who have run for state district judge in those 

counties, cast considerable doubt upon the district court's 

conclusion that blacks and Hispanics are under-represented on the 

bench in the target counties. 

For example, it is absurd to claim that blacks are entitled 

to 19.7% of the district judgeships in Harris County since blacks 

 



make up "19.7% of the total population, even though blacks make up 

only 3.8% of the eligible candidates for office and even though 

only 16 blacks have run in 22 races for state district judge in 

Harris County since 1978 =-- out ‘of 160 races in all. See 

Defendant Wood's Trial Exhibit No. 11, "State Bar of Texas' 

Membership Department Breakdown of Active Attorneys by Ethnic 

Original; State Defendants' Trial Exhibit No. 4, "Survey of 

Attorneys in 12 Selected Texas Counties" at Table One. Even if 

every black candidate who has run for state district judge in 

Harris County had won, the district court's goal of proportional 

representation still could not be reached. 

In such circumstances it is absurd to measure black judicial 

electoral success by reference to the entire black population or 

even the black voting age population. Only a Ward's Cove measure 
  

of success makes sense. Given the requirements of judicial 

office which distinguish judges from representatives, and given 

the authority of City of Richmond and Ward's Cove in Title VII   

  

cases, where the positions described as discriminatory had 

similar qualification requirements, substantial grounds exist for 

questioning whether the extent of minority electoral success in 

judicial elections should be measured against the number of 

minority voters rather than against the pool of eligible candi- 

dates for judicial office. 

 



  

G. The Court's Holding That Illegal Vote Dilution Exists In 
Harris County, Texas Judicial Races 1s Clearly 
Erroneous. 

  

  

  

Appellate review of a finding of illegal vote dilution 

requires a determination whether the district court's holding was 

clearly erroneous under a totality of the circumstances test 

based upon a searching, practical inquiry and an intensely local 

fact-bound appraisal of the contested practice. Gingles, 106 

S.Ct. at 2781. Applying the conclusions of law set forth above, 

the district court held with respect to Harris County that the 

data set relied upon by Plaintiffs’ expert to analyze Harris 

County elections, consisting in 1980 census counts of total black 

population by precinct and computer printouts’ of 1982, 19584. 

1986, and 1988 precinct voter registration estimates supplied 

Dr. Engstrom by Dr. Richard Murray, a non-testifying expert whose 

Work was never verified by Dr. Engstrom, was reliable data on 

which to base statistical analysis of racially polarized voting 

and racial bloc voting in Harris County. See Opinion at 27. 

Similarly, the district court accepted as sufficient for its 

holding Dr. Engstrom's testimony: (1) that primary elections in 

Harris County need not be addressed because they do not filter 

out black candidates; (2) that uncontested races do not assist 

researchers in their analysis; (3) that the appropriate compari- 

son in Voting Rights Act cases is black and non-black; (4) that, 

although not controlled for, the votes of Asian-Americans would 

be included in the percentage of non-black votes; and (5) that 

the range of absentee votes (up to 13.7%) was insufficient to 

 



  

invalidate Dr. Engstrom's findings. Opinion at 27. The district 

court further held that Dr. Engstrom's testimony regarding 

correlation and regression analysis of 17 selected races in 

Harris County proves that white bloc voting sufficient to defeat 

the choice of the black community exists in Harris County. 

Opinion at 28-30. 

In addition, the district court concluded that the testimony 

of Judge Wood's witness, Judge Mark Davidson, and other witnesses 

that race and ethnicity are relatively unimportant to explain 

voting behavior in Harris County, while credible, was irrelevant 

under controlling law, as was testimony and evidence that black 

preferred candidates lost their judicial races, e.qg., because of 

failure to win the Harris County Bar preference poll or obtain 

the Gay Political Caucus endorsement. Opinion at 31... All of the 

foregoing conclusions of law are disputable for reasons set forth 

above regarding the standard of proof in vote dilution cases. 

The court also relied on the Plaintiffs' Exhibit H-04, a 

chart and map of Gingles I districts in Harris County, prepared 

but not testified to by Dr. Robert Brischetto to establish the 

Plaintiffs' claim that at least one majority black district could 

be drawn in Harris County. See discussion Supra at 6. No 

predicate was laid for the exhibit and it was improperly 

admitted. 

Finally, the district court held that only three of the nine 

"typical local" factors set out in Zimmer exist in Harris County: 

(1) historical discrimination, which it held to be 

 



  

"indisputable"; (2) "enhancement" of the opportunity to 

discriminate, which it held was present through the mere fact 

that Texas' district judges are elected by majority vote from 

county-wide districts; and (3) the lack of electoral success of 

black district judge candidates jin relation ‘to the. ‘total 

population of blacks in Harris County] in the races selected for 

analysis by Plaintiffs' expert. 

The district court held that historical discrimination was 

indisputable as a relevant practical local factor in Harris 

County even though Judge Wood presented evidence that no dis- 

criminatory practice touching on the right to vote has existed in 

Harris County for at least fifteen years. See Defendant Wood's 

Trial Exhibit No. 56, Deposition of Harris County District Clerk 

Ray. Bardy at 110. Given the. district court's interpretation, 

"historical discrimination" need never be proved: "it is simply a 

fact in virtually every jurisdiction in the country, a fact which 

can never be assuaged. If a given, it should cease to count as a 

relevant practical local factor. 

The Qistrict court-held that a majority voting requirement 

constitutes enhancement of the opportunity to discriminate, even 

though such a claim was denied by the Second Circuit in Butts Vv. 
  

City of New York, 778 F.2d 141, 149 (24 Cir. 1985), which held   

that a run-off requirement in an election to a single-member 

office does not deny any class an opportunity for equal represen- 

tation and therefore cannot violate the Voting Rights Act. 

Similarly, the district court held that county-wide elections 

 



  

constitute discriminatory enhancement, even though the Supreme 

Court has repeatedly held that county-wide multi-member district 

election schemes are not constitutionally defective .13/ Whitcomb 
  

V.,. Chavis, 403 U.S. at 124, 91 S.Ct. at 1863. 
  

Finally, the district court held that the extent of black 

electoral success in Harris County shows discrimination despite 

both the plain language of § 2(b) of the Voting Rights Act, which 

expressly provides that minorities have no entitlement to 

proportional representation, and the authority of Ward's Cove and 
  

City of Richmond in similar cases, which holds that where special   

qualifications are required for a position the relevant measure 

of minority success is the pool of qualified minority candidates 

and not the total minority population. See supra at 33. 
  

In sum, there are obviously solid grounds for disputing 

whether "proof" of vote dilution based almost entirely on 

bivariate regression analysis can be established (1) when 

virtually all of the statistical proof is tainted, unverified, or 

ten years out-of-date; (2) when almost none of the Zimmer factors 

have been found and those which have been found are themselves 

disputable under sound legal authority; (3) when the court 

accepted as proof of vote dilution the Plaintiffs' bivariate 

regression analysis which deliberately ignored as irrelevant 

almost all races in which minority voters--at least in Harris 

  

13/ Assuming, without admitting, that overlapping single-member judicial 
districts are actually disguised multi-member districts. 

 



  

County--have expressed a preference for state district judge=-- 

including all races in which whites faced whites or Hispanics, 

all races in which blacks ran unopposed, all races run in 1978 

(when two blacks ran for the office of state district judge, both 

successfully, only to run unopposed--hence not to count--ever 

since) and all races in which blacks ran as Republicans (which 

were counted as anomalies); and (4) when the court counted as 

"legally incompetent" testimony which, though "credible" tended 

to prove that, in fact, under practical local conditions, racism, 

and Siteeh race,:plays little or no part in district judge races 

and that those races are, in fact, decided primarily by straight 

ticket party voting and secondarily by a small number of discre- 

tionary judicial voters who base their votes on variables such as 

personality of the candidates, judicial preference polls, media 

endorsements, publicity accorded the candidates qualifications, 

and successful campaign strategies designed to appeal to all 

voters rather than selected minority groups. 

Since alli of ‘the district court's specific conclusions 

regarding Harris County may reasonably be disputed under the 

arguments set forth above, substantial grounds exist for disput=- 

ing the district court's holding that illegal vote dilution 

exists in Harris County judicial races. 

IV. AN IMMEDIATE APPEAL MAY MATERIALLY ADVANCE 
THE TERMINATION OF THIS LITIGATION. 

In the absence of immediate interlocutory appeal designed to 

settle the numerous controlling issues of law which are in 

dispute, the litigation of this and related cases, as well as 

“38 um 

 



imitative cases, promises to occupy the courts for years while 

leaving the entire Texas judicial election system in disarray. 

When the court below certified this case for expedited inter- 

locutory appeal it simultaneously signed an interim plan enjoin- 

ing all elections under the system it had declared illegal and 

imposing a judicial election system devised in most of its 

essential respects by the Plaintiffs and Texas Attorney General 

Jim Mattox without any input from Judge Wood, Defendant/ 

Intervenor Judge Entz, the Secretary of State, the administrative 

judges or the state district judges whose interests Attorney 

General Mattox was bound by law to represent. That Interim Plan 

took immediate effect on the day of the filing deadline for state 

district judgeships. Judge Wood has filed Objections to the 

Plaintiffs' and Mattox's "Remedial Plan" which point out =its 

violations of numerous Texas statutes, the Texas Constitution, 

the equal protection clause of the 14th Amendment, the due 

process clause of the 14th Amendment, and the right to propor- 

tional representation, as well as its irrevocable and immediate 

effect of destroying Texas' judicial election system. Virtually 

all of these objections apply to the court-ordered remedial plan. 

Judge Wood's Application for Stay, filed herewith, states 

additional objections to the district court's plan. The litiga- 

tion of the issues raised by the district court's Interim Plan, 

as well as the issues generated by  .the' district court's 

Declaratory Judgment, could take years 1f this Court refuses to 

hear Judge Wood's interlocutory appeal and she must await final 

judgment.  



  

In addition, so long as the scope of the Voting Rights Act 

remains unclear and the standard of proof accepted by the 

district court stands,” suits challenging each of Texas' courts 

can be expected to proliferate. On December 22% 198%, the date 

of submission of the Plaintiffs' and Mattox's plan to the 

district court in this case, the Mexican American Legal Defense 

and Education Fund ("MALDEF") filed suit in federal court in 

Brownsville, Texas, challenging the election of judges to the 

Texas Court of Criminal Appeals on the same formulaic grounds as 

this suit. Also, the attorneys for the Plaintiffs have already 

indicated that because of their success in this suit they expect 

to bring numerous suits, one by one, challenging county-wide 

regional and statewide elections to all branches of the judiciary 

all over the State of Texas. 

Moreover, a permanent plan has yet to be devised. Either 

that plan will be as hastily conceived as the Interim Plan has 

been--in which case it can be expected to generate numerous other 

suits--or it will involve a drawn out and very expensive re- 

assessment of the state judicial election system, requiring 

evidentiary hearings by the district court, consideration by the 

Texas legislature and the Judicial Districts Board of various 

alternatives, amendment to the Texas Constitution, ratification 

by the voters of Texas, and scrutiny and approval by the Justice 

Department under § 5 of the Voting Rights Act. Thus, if. the 

district court's Declaratory Judgment stands, protracted and 

 



  

expensive litigation and turmoil in the judiciary is certain to 

ensue over a period of years. 

In the meantime, should Judge Wood be forced to endure the 

implementation of the district court's Interim Plan and/or any 

further proceedings designed to provide a "remedy" for the vote 

dilution found by the district court before the propriety of that 

court's judgment is reviewed, any right she has to elect or be 

elected in an independent state judiciary under the present 

electoral system may be irretrievably lost. Also, should this 

Court deny Judge Wood's petition for expedited interlocutory 

appeal and this case proceed to final judgment in the district 

court, only to have that final judgment ultimately overturned by 

this Court, a new round of chaos will necessarily ensue as the 

state attempts to reconstruct Humpty Dumpty. 

On the other hand, should this Court grant this petition for 

expedited interlocutory appeal pursuant to §: 1292 (1), all 

questions of law regarding the district court's basis for its 

Declaratory Judgment can be expeditiously decided, thereby 

bringing this case to an end in a more orderly and just fashion 

and allowing future Voting Rights Act litigation to proceed on a 

more certain footing. Nor will any of the Plaintiffs be prej- 

udiced by any such appeal. To the contrary, they, like Defen- 

dants, benefit from the swift resolution of the extremely 

significant disputed legal questions at issue in this case. 

Finally, the resolution of the controlling legal issues in this 

 



  

case can only benefit the public interest, which otherwise stands 

to undergo grievous and perhaps totally unnecessary suffering. 

V. CONCLUSION 

WHEREFORE, for the foregoing reasons, Harris County District 

Judge Sharolyn Wood requests that this Court grant her petition 

for expedited interlocutory appeal of the district .court's 

Memorandum Opinion and Order of November 8, 1989, as amended, and 

that it grant her such other and further relief in law and in 

equity to which she may show herself justly entitled. 

| Respectfully submitted, 

PORTER & CLEMENTS 

RE Wi .. av > a rN re 
. Eugene Clements 

velyn V. Keyes 
h 3500 NCNB Center 

P.O. Box 4744 

Houston, Texas 77210-4744 

(713) 226-0600 

    

  

ATTORNEYS FOR HARRIS COUNTY 
DISTRICT JUDGE SHAROLYN WOOD 

OF COUNSEL: 

Darrell Smith 

Attorney at Law 

10999 Interstate Hwy. 10, #905 
San Antonio, Texas 78230 

(512) 641-9944 

Michael J. Wood 

Attorney at Law 

440 Louisiana, Suite 200 

Houston, Texas 77002 

(713) 228-5105 

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that on the ty 4 day of January, 1990, a 
true and correct copy of the above! ‘and foregoing Harris County 
District Judge Sharolyn Wood's Petition for Expedited Permission 
to Appeal Under 28 U.S.C. § 1292(b) was mailed to counsel of 
record in this case by first class United States mail, postage 
prepaid, addressed as follows: 

Mr. William L. Garrett 
Ms. Brenda Hall Thompson 
Garrett, Thompson & Chang 

Attorneys at Law 
8300 Douglas, Suite 800 
Dallas, Texas 75225 

Mr. Rolando L. Rios 

Southwest Voter Registration & 
Education Project 

201 N. St."Mary's, Suite 521 
San Antonio, Texas 78205 

Ms. Susan Finkelstein 

Texas Rural Legal Aid, Inc. 

201 N. St. Mary's, Suite 600 
San Antonio, Texas 78205 

Mr. Julius Levonne Chambers 

Ms. :Sherrilyn A. Ifill 
NAACP Legal Defense and Educational Fund, Inc. 
99 Hudson Street 

16th Floor 

New York, New York 10013 

Ms. Gabrielle K. McDonald 

Matthews & Branscomb 
301 Congress Ave., Suite 2050 
Austin, Texas 78701 

Mr. Jim Mattox, Attorney General of Texas 
Ms. Mary F. Keller, First Assistant Attorney General 
Mr. Renea Hicks, Spec. Assistant Attorney General 
Mr. Javier Guajardo, Spec. Assistant Attorney General 
P. O. Box 12548 

Capitol Station 

Austin, Texas 78701 

Mr. Edward B. Cloutman, III 
Mullinax, Wells, Baab & Cloutman, P.C. 
3301 Elm Street 

Dallas, Texas 75226-1637 

 



  

Mr. E. Brice Cunningham 

777 So. R.L. Thornton Freeway 
Suite 121 

Dallas, Texas 75203 

Mr. Robert H. Mow, Jr. 

Hughes & Luce 

2800 Momentum Place 

1717 Main Street 

Dallas, Texas 75201 

  

Evelyn V{{Keyes 
Lott V len 

WOO005 /02 /cdf 

 



IN THE UNITED STATES COURT OF APPEALS 

FOR THE PIFTH CIRCUIT 

  

  

  

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

Plaintiffs-Appellees, 

versus 

JIM MATTOX, Attorney General of the State of Texas, et al.., 

Defendants, 

and HARRIS COUNTY DISTRICT JUDGE SHAROLYN WOOD, 

Intervenor-Defendant-Appellant. 

  

HARRIS COUNTY DISTRICT JUDGE SHAROLYN WOOD'S 
MOTION TO CONSOLIDATE 

  

PORTER & CLEMENTS 

J. Eugene Clements 
Evelyn V. Keyes 
3500 NCNB Center 
P.O. Box 4744 
Houston, Texas 77210-4744 

(713) 226-0600 

ATTORNEYS FOR HARRIS COUNTY 
DISTRICT JUDGE SHAROLYN WOOD  



  

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH. CIRCUIT 

  

NO. 
  

  

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

Plaintiffs-Appellees, 

versus 

JIM MATTOX, Attorney General of the State of Texas, et al., 

Defendants, 

and HARRIS COUNTY DISTRICT JUDGE SHAROLYN WOOD, 

Intervenor-Defendant-Appellant. 

  

HARRIS COUNTY DISTRICT JUDGE SHAROLYN WOOD'S 

MOTION TO CONSOLIDATE 

  

TO THE HONORABLE COURT OF APPEALS: 

Defendant-Intervenor-Appellant Harris County District Judge 

Sharolyn Wood ("Judge Wood") moves the Court, pursuant to Fed. R. 

App. P. 3, to consolidate the above-referenced cause of action 

with Rangel v. Mattox, No. 89-6226, now pending before the Court. 
  

In support of her Motion, Judge Wood would show the Court that 

LULAC v. Mattox presents common questions of law and fact with 
  

Rangel v. Mattox and that their consolidation would avoid 
  

unnecessary expense and delay, as set forth below. 

 



  

% 

1. LULAC challenges the existing system of electing state 

district judges in nine target counties in Texas under § 2 of the 

Voting Rights Act, 28 U.S.C. § 1973, while Rangel challenges the 

existing system of electing judges to the Thirteenth Court of 

Appeals of the State of Texas, also under § 2 of the Voting 

Rights Act. In both cases the Plaintiffs made virtually 

identical claims of illegal vote dilution; and in both cases the 

district court held that the existing judicial election system 

illegally diluted the voting rights of minorities and ordered the 

immediate imposition of a remedial plan. 

2. In its Opinions of December 5, 1989 and January 3, 

1990, issued in Rangel v. Mattox, this Court granted a stay of 
  

the court-imposed remedial plan. Defendant-Intervenors Judge 

Wood and Harris County District Judge Harold Entz ("Judge Entz") 

have filed similar emergency motions for immediate stay in this 

Court in LULAC. The same reasons for granting a stay are present 

in both LULAC and Rangel. In addition, Judge Wood has filed a 

Petition for Expedited Permission for Interlocutory Appeal in 

LULAC, citing objections to the district court's Findings of Fact 

and Conclusions of Law in LULAC virtually identical in many 

respects to the district court's Findings of Fact and Conclusions 

of Law in Rangel. 

3. In exercising its discretion to consolidate cases, the 

Court must determine whether consolidation will prejudice the 

rights of the parties. St. Bernard Gen. Hosp. v. Hospital Serv. 
  

Ass'n, 712.F.2& 978, 989 (5th Cir. 1983), cert, denied, 466 U.S. 
  

 



  

  

970, 104 S.Ct. 2342 (1984). The Court's decision to consolidate 

cases 1s discretionary. Oelze v. Commissioner of Internal 

Revenue, 723 xP.28" 1162, 1163 (5th Cir. 1983). Judges are 

encouraged, however, to make good use of consolidation to 

expedite trial and eliminate unnecessary repetition and 

confusion. Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492, 
  

1495 {llth Cir. 1985); Dupont v. Southern Pacific Co., 366 r.24 
  

193, 195" (5th+Cir. 1966), cert, denied, 386 -U.8., 958, 97 s.Ct. 
  

1027 (1967). All of these criteria for consolidation are fully 

met in this case. 

WHEREFORE, Harris County District Judge Sharolyn Wood 

respectfully requests the Court to consolidate the appeals of 

LULAC .v. Mattox, No. 90- and Rangel wv. Mattox, 
  

  
  

No. 89-6226. 

Respectfully submitted, 

PORTER & CLEMENTS 

  

  

  

in Ta 5 

AIRE i I y = 

~~ _ J./ Eugene Clements rs 
“Fyelyn V. Keyes 

500 NCNB Center 

P.O. Box 4744 

Houston, Texas 77210-4744 

(713) 226-0600 

ATTORNEYS FOR HARRIS COUNTY 
DISTRICT JUDGE SHAROLYN WOOD 

 



  

OF COUNSEL: 

Darrell Smith 
Attorney at Law 
10999 Interstate Hwy. 10, #905 
San Antonio, Texas 78230 
(512) 641-9944 

Michael J. Wood 
Attorney at Law 
440 Louisiana, Suite 200 

Houston, Texas 77002 

(713) 228-5105 

CERTIFICATE OF SERVICE 
  

I hereby certify that on the SH aay of January, 1990, a 
true and correct copy of the above and foregoing document was 
mailed to counsel of record in this case by first class United 
States mail, postage prepaid, addressed as follows: 

Mr. William L. Garrett 
Ms. Brenda Hall Thompson 
Garrett, Thompson & Chang 
Attorneys at Law 

8300 Douglas, Suite 800 

Dallas, Texas 75225 

Mr. Rolando L. Rios 
Southwest Voter Registration & 

Education Project 
201 N.“st, Mary's, Suite 521 
San Antonio, Texas 78205 

Ms. Susan Finkelstein 

Texas Rural Legal Aid, Inc. 

201 N. St. Mary's, Suite 600 
San Antonio, Texas 78205 

Mr. Julius Levonne Chambers 
Ms. Sherrilyn A. Ifill 
NAACP Legal Defense and Educational Fund, Inc. 
99 Hudson Street 

16th Floor 

New York, New York 10013 

 



Ms. Gabrielle K. McDonald 
Matthews & Branscomb 

301 Congress Ave., Suite 2050 
Austin, Texas 78701 

Mr. Jim Mattox, Attorney General of Texas 
Ms. Mary F. Keller, First Assistant Attorney General 
Mr. Renea Hicks, Spec. Assistant Attorney General 
Mr. Javier Guajardo, Spec. Assistant Attorney General 
P. O. BOx 12548 
Capitol Station 
Austin, Texas 78701 

Mr. Edward B. Cloutman, III 

Mullinax, Wells, Baab & Cloutman, P.C. 

3301 Elm Street 

Dallas, Texas 75226-1637 

Mr. E. Brice Cunningham 
777 So. R.L. Thornton Freeway 
Suite 121 
Dallas, Texas 75203 

Mr. Robert H. Mow, Jr. 

Hughes & Luce 
2800 Momentum Place 

1717 Main Street 

Dallas, Texas 75201 

rye 
( Cpl > Keyes 
  

WO005/08/cdf  



  

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

  

NO, 
  

  

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

Plaintiffs-Appellees, 

versus 

JIM MATTOX, Attorney General of the State of Texas, et al., 

Defendants, 

and HARRIS COUNTY DISTRICT JUDGE SHAROLYN WOOD, 

Intervenor-Defendant-Appellant. 

  

JUDGE WOOD'S EXHIBITS 

VOLUME I 

(Exhibits A - B) 

  

PORTER & CLEMENTS 

J. Eugene Clements 
Evelyn V. Keyes 
3500 NCNB Center 
P.O. Box 4744 
Houston, Texas 77210-4744 

(713) 226-0600 

ATTORNEYS FOR APPELLANT 

HARRIS COUNTY DISTRICT JUDGE 

SHAROLYN WOOD 

 



  

o Ad 

JUDGE WOOD'S EXHIBITS - VOLUME I 
  

  

Exhibit "A" 
  

[Houston Lawyers' Association's] Complaint in Intervention 

Defendant Harris County District Judge Sharolyn Wood's 
Original Answer to Houston Lawyers' Association 

Plaintiff-Intervenor Houston Lawyers' Association et al's 
Original Answer to Defendant-Intervenor Wood's Counterclaim 

Plaintiffs' Second Amended Complaint 

Dallas County District Judge FF, Harold 'Entz's First Amended 
Answer to LULAC's Second Amended Complaint 

State Defendants' Original Answer to Plaintiffs' Second 

Amended Complaint 

Harris County District Judge Sharolyn Wood's Second Amended 
Original Answer and Counterclaim to Plaintiffs LULAC et al. 

Plaintiffs' Answer to Defendant-Intervenor Wood's Second 

Amended Counterclaim 

Exhibit "BY 
  

Plaintiffs! Post Trial Brief 

Plaintiff-Intervenors Houston Lawyers' Association's Post 

Trial Brief 

Defendant-Intervenor Wood's Post-Trial Brief 

Defendant-Intervenor Dallas County Judge F. Harold Entz's 

Post-Trial Brief 

State Defendants' Post-Trial Reply Brief 

Plaintiffs' Response to Post-Trial Briefs 

Defendant Wood's Reply to Plaintiffs' and Plaintiff-Inter- 
venors Houston Lawyers' Association's Post-Trial Brief 

Plaintiff-Intervenors Houston Lawyers Association's Reply to 
Post-Trial Briefs 

Defendant Wood's Response to Houston Lawyers' Association's 

Reply Brief 

 



® @® 

  

IN THE UNITED STATES COURT OF APPEALS 
FOR THE ‘FIFTH CIRCUIT 

  

NO. 
  

  

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

Plaintiffs-Appellees, 

versus 

JIM MATTOX, Attorney General of the State of Texas, et al., 

Defendants, 

and HARRIS COUNTY DISTRICT JUDGE SHAROLYN WOOD, 

Intervenor-Defendant-Appellant. 

  

JUDGE WOOD'S EXHIBITS 

VOLUME II 

(Exhibits C - J) 

  

PORTER & CLEMENTS 
J. Eugene Clements 
Evelyn V. Keyes 
3500 NCNB Center 
P.O. Box 4744 
Houston, Texas 77210-4744 
(713) 226-0600 

ATTORNEYS FOR APPELLANT 

HARRIS COUNTY DISTRICT JUDGE 

SHAROLYN WOOD 

 



  

* 9 

JUDGE WOOD'S EXHIBITS - VOLUME II 
  

EXhipit "Cc" 
  

Memorandum Opinion and Order signed and entered November 8, 
1989. 

Order signed November 14, 1989. 

Order signed and entered November 27, 1989. 

Order to Correct Clerical Errors, entered December 28, 1989. 

Exzhib. tt "D" 
  

[Plaintiffs'/Mattox's] Proposed Interim Plan 

Defendant Wood's Objections to Plaintiffs' and Mattox's 
"Remedial" Plan 

Sample letters and Alternative Plans Filed with the District 
Court by Defendants. 

Exxhibie "Eg" 
  

Defendant-Intervenor Harris County District Judge Sharolyn 
Wood's Motion for Certification for Interlocutory Appeal and 
Motion for Stay 

Exhibit "¢"   

Order signed and entered January 2, 1989. 

Exhibit .."G" 
  

Harris County District Judge Sharolyn Wood's Notice of 
Appeal 

Exhibit "HR" 
  

Defendant Harris County District Judge Sharolyn Wood's 
Motion to Dismiss and Motion for More Definite Statement 

Brief in Support of Defendant Wood's Motion to Dismiss and 
Motion for More Definite Statement 

 



  

¢ ® 

Plaintiffs' Response to the Motion to Dismiss or for More 
Definite Statement of Defendant-Intervenor Wood of Harris 
County 

Defendants' Statement Regarding Disposition of Motion to 
Dismiss and for More Definite Statement of Defendant- 

Intervenor Wood 

Order entered May 3, 1989. 

Exhibit "1" 
  

[Mattox's] Statement Concerning Non-Partisan Elections as an 
Aspect of An Interim Remedy; Supplement to the Joint Motion 
for Entry of Proposed Interim Plan 

Defendant-Intervenor Harris County District Judge Sharolyn 
Wood's Response to Attorney General Mattox's Statement 
Concerning Non-Partisan Elections and Supplement 

Exhibit "J" 
  

Makei, "Judicial flap spawns oratory, not decision," Houston 
Chronicle, December 30, 1989 at 212, Cols. 5-6. 
  

it) 
4 

 



POUL win Clianitle 

CECE TA badge dl ree 
odlUlday, Jee 30 1989 

® 
  
  

» 
    
  

  

METROPOLITAN 
  

Local & State 

Deaths, 26A 

Weather, 274 » 

  

  
  

Bureau's political action committec 
— Ag Fund — paid the $18,000 filing 

—emmpmts cc eme 

See HIGHTOWER on Page 27A. 

Judicial flap spawns 
oratory, not decision 
  

By JOKN MAKEIG 

Houston Chronicle 
  

No decision will be made before 
Dext week on a judicial redistricting 
plan for Texas. but the oratory about 
who represents |, 
whom in the ac- 
tion was flowing | 
fast Friday. N 
Two Harris 

County judges 
dropped their 
lawsuit against 
Texas Attorney 
General Jim 
‘Mattox, a defen- 
dant in the fed- | 4 
eral ruling re- ~~ __. 
quiring redis- . - Poe Tat: 
tricting, and promptly proclaimed 

.. victory. 
“We win — that’s the bottom line.” 

announced state District Judge Ted 
Poe. “He doesn’t represent us or any 

other judge in Texas. He oniy repre 
sents himself.” 

Poe said he dropped the lawsuit 
because an assistant attorney gen- 
eral admitted in a hearing last week 
that Mattox did not represent the 
judges. 

In Austin. Mattox spokesman Ron 
Dusek responded by saying. “What's 
the beef? Of course we don't repre-- 
sent them: they weren't defendants 
We never claimed to represer: 
them.” 
Whether anvone actually won or 

lost in the Harris County fla; 10; 
matter of interpretation. but Poe 
said the path is now oper. for him to 
become an official intervenor in the 
federal action. Bevond that, Poe 

-- said. he can appeal any decision 
* «made by U.S. District Court Judge 

Lucius Bunton. 
Bunton found last month that the 

current at-large system of electing 

See JUDGES on Page 27A. 

  

  
EXHIBIT 

  
A 

-7 / 

i 
Vv 

   



  

KEY TO CONDITIONS: c=cloudy: dr=drizzle: f=tair: h=hazy: oc=partiv cioucy 
SN=snow: ts=thunaershowers: w=winay. 

r=rai- c= 

  

Judges 
Cottinued from Page 21A. 

state district judges in Texas ille- 
gally dilutes the voting strength of 
minorities. The League of United 
Latin American Citizens and the 
National Association for the Ad- 
vancement of Colored Peopie had 
sued Mattox and other officials in 
hopes of increasing their representa- 
tion on state benches. 

A settlement reached bv Mattox 
and LULAC called for Harris County 
judges to be elected from the coun- 
ty's 26 legislative districts. Most 
state district judges in the county 
strongly oppose that proposal. say- 
ing it would create judicial “chaos” 
in major Texas counties. 

To let Bunton know they disagreed 
with the proposed settlement, Poe 
and state District Judge Charles 
Hearn sued the attorney general. 

Their now-defunct lawsuit says 
Mattox doesn't represent Texas’ 
judges in the federai court action, 
only himself. 

“I think it opened Bunton’s eyes to 
the real situation in Harris County.” 
Hearn said. “If Mattox had his way, 
it would have been chaos here.” 
Beyond the plan agreed on by 

LULAC and Mattox, several others 

  

  

Hearn Bunton 

also have been presented to Bunce: 
for consideration. Whether he wii 
select one of them. combine parts ¢ 
various plans or chose one whoiiv his 
Own remains unknown. 

In Midland. a clerk for Bunton said 
the judge won't sign any orders in the 
case “until Tuesday at the soonest." 

The last words in the clerk’s state 
ment — “at the soonest” — brought 
Joy to some judges’ hearts. The filing 
deadline for state judgeship races is 
Tuesday, and if nothing is signed Ie 
p.m. that dav the next eiectic:. 
presumably will proceed unaffected. 

Also Tuesday, all 36 Harris County 
state district judges facing re-elec- 
tion in 1990 are to meet in state 
District Judge Miron Love's court to 
hold a bipartisan meeting to divide 
up the county.