Plaintiff-Intervenors Houston Lawyers' Association's Reply to Post-Trial Brief

    October 13, 1989 

Hon. John Neil 

Deputy Clerk, U.S. Courthouse 
P.O. Box 10708 

200 E. Hall, Room 316 

Midland, TX 79702 

Re: Civil Action Nu. MO-88-CA-154 

LULAC, et al. v. James Mattox, et al. 

Dear Mr. Neil: 

Enclosed for filing in the above reference case, please find 
Plaintiff-Intervenors Reply to Post-Trial Briefs. 

All counsel have received copies of the Brief by certificate of 
service. 

Sincerely, 

  

SAI/g] 
Encs. 

  

 



IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, 

{IUILAC), et al., 

PLAINTIFFS, 

No. MO-88-CA-154 

JAMES MATTOX, Attorney General o the 
State of Texas, et al., : 

DEFENDANTS. 

PLAINTIFF-INTERVENORS HOUSTON IAWYERS’ ASSOCIATION'S 
REPLY TO POST-TRIAL BRIEFS 
  

  

I. Defendants’ Claims Regarding the Role of Partisan Voting 
Were Rejected by the District Court and Supreme Court in 
Gingles 

Defendant and defendant-intervenors’ defense rests entirely 

on convincing this court that the same arguments advanced 

unsuccessfully by the defendants in Gingles regarding the role 

of partisan politics in determining the outcome of elections, 

should be found persuasive in this case. Defendants’ arguments 

and testimony regarding the role of partisan politics in Harris 

County however, are exactly identical to that offerred by the 

defendants in Gingles, and should similarly be rejected as non- 

compelling and insufficient to rebut the plaintiffs’ clear  



  

showing of racially polarized voting in Harris County, Texas.l 

Not surprisingly, defendants and defendant-intervenors rely 

on the Supreme Court’s eighteen year old decision in Whitcomb v. 
  

Chavis to support their claims. Defendants seemingly ask the 

court to overlook the fact that in @Gingles, the only Supreme 

Court case to interpret amended section 2 of the Voting Rights 

Act, and decided only three years ago, the Court rejected 

testimony and arguments on the subject of partisan voting 

patterns, identical to that offered by the defendants in the case 

at hand. 

Instead, both the District Court and the Supreme Court in 

Gingles were persuaded that a section 2 violation was present in 

North Carolina legislative districts based upon similar factual 

findings and expert testimony as presented by plaintiff- 

intervenors in Harris County in the case at hand. For instance, 

in gingles, the plaintiffs’ expert, Dr. Bernard Grofman,   

responded to the defendants’ argument that Black candidates are 

defeated because they run as Democrats and not as Republicans, by 

noting that "controlling for party -- that is, looking only at 

Democrats -- the Black loss rate is roughly three times that of 

white Democrats." See Direct Testimony of Dr. Bernard Grofman, 
  

lpefendant and defendant-intervenors’ exhaustive discussions 
of Justice O’Connor’s and Justice White’s concurrences in Gingles 
conveniently ignore the fact that by ruling for the plaintiffs 
and holding unanimously that the District Court had not erred in concluding that all but one of the relevant districts violated 
§2, all members of the Supreme Court found the defendants’ arguments and testimony on the role of partisan politics in the 
districts, unpersuasive, uncompelling and insufficient to rebut 
the plaintiffs’ clear evidence of racially polarized voting. 

2 

 



  

Trial Transcript at p. 114. : Similarly, Dr. Engstrom, expert for 

the plaintiff-intervenors in the case at hand, noted that 

controlling for party, the white Democratic success rate in 

Harris County is four times the Black Democratic success rate, in 

that 52% of white Democratic candidates have been successful in 

district judge elections in Harris County since 1980, while only 

12.5% of Black Democratic district judge candidates were 

successful during that same time period.? 

In Gingles, the plaintiffs’ expert alsc noted that in the 

eight relevant congressional districts in North Carolina in 1982, 

" a year in which Republicans =-- relative to previous Republican 

success in North Carolina =-- Republicans did not do very well," 

no white Democrat lost, "but 28.5% of the Black Democrats who 

ran for office in 1982 lost." Trial Transcript at P. 114-115. 

In the case at hand, Dr. Engstrom noted the same phenomenon in 

both 1982 and 1986 in Harris County countywide judicial 

elections. In 1982 for example, of the five Black candidates 

who ran for county wide judicial office in the general election 
  

2pefendants argue that "at the general election stage, the 
question becomes whether there is a pattern of substantial 
desertion from the Democratic Party by white voters to vote for a 
Republican candidate, thereby denying victory to the candidate of 
choice to minority voters." Defendants’ Post-Trial Brief at Pe. 
10. Evidence of the disparity in white vs. Black Democratic 
candidate success rates would seem to answer the defendants’ 
question in the affirmative. 

Defendants’ statement of the relevant question at issue here 
is, of course, inaccurate. The court is not required to make 
differentiations between Democratic, Republican and "swing" white 
voters, so long as all these white votes seve to consistently 
defeat or bloc the choice of Black voters, when the choice of 
Black voters is a Black candidate, as they do in Harris County 
district judge elections. 

 



in Harris County, two won. One of the two ran unopposed, and 

the other -- incumbent Judge Thomas Routt -- barely squeaked by, 

winning only 51.3% of the vote over a virtually unknown white 

challenger. John James, Clark Gable Ward, and James Muldrow, an 

incumbent county criminal court judge, lost that year, despite 

the presence of a victorious Mark White and Lloyd Bentsen at the 

top of the ticket, as well as the win of 13 out of the 17 

contested judicial seats by the Democrats.3 

In 1986, 22 Democratic incumbent judges ran for reelection 

countywide. Three of those incumbent Democratic judges were 

Black. Every white Democratic incumbent judge won the election, 

following the success of Mark White against William Clements in 

Harris County. Each of the three Black Democratic incumbent 

judges, however, lost. Defendant-intervenors, relying on a 

report written by Dr. Murray argue that the Black candidates 

failed to receive the endorsement of the Gay Political cCaucus.4 
  

3counsel for defendant-intervenors referred to several of 
these races involving Black candidates as "token candidacies." 
Hon. Mark Davidson, a white sitting district judge who testified 
for defendant-intervenors also referred to "token candidacies" by 
Black candidates. Neither Judge Davidson’s nor counsel for 
defendant-intervenors’ view on the '"tokenism" of Black 
candidates’ run for office is probative or relevant, when these 
candidates received more than 95% of the Black vote in Harris 
County. Clearly, these candidates were considered viable by the 
Black community. 

fefendant and defendant-intervenors continue to advance a conflicting and tortured interpretation of the "totality of the circumstances" test, completely at odds with the intent of 
Congress in amending Section 2 of the Voting Rights Act, and with 
the Supreme Court’s interpretation of amended section 2. 

First, defendants and defendant intervenors argue that "Except in rare instances, voters are unaware of the identity of 
candidates for state district judgeships." Defendants’ Post- 

4  



  

In no other election, between 1980 and 1988 however, do the 

defendant-intervenors offer the endorsement of the Gay Political 

Caucus as a factor in a candidate’s electoral success or failure. 

Defendant-intervenors argue that Blacks "necessarily have no 

vote dilution claim in Harris County" because 59% of the state 

district judges in Harris County were elected as Democrats, and 

Blacks vote approximately 95% Democratic in Harris County. 

Defendant-intervenors’ Post-Trial Brief at p. 18. This claim 

absurdly attempts to include the success of white candidates 

supported by Blacks in white vs. white candidate coatests to 

rebut the plaintiffs’ showing of racial bloc voting. This 

circuit has firmly held however, that "[e]vidence of black 

support for white candidates in an all-white filed . . . tells 

us nothing about the tendency of white bloc voting to defeat 

  

Trial Brief at p. 8, Then, defendant-intervenors attempt to 
explain the defeat of each unsuccessful Black district judge 
candidate by arguing that Harris County voters have rejected 
Black candidates because of poor showing in Bar Polls, newspaper 
endorsements, bad publicity, and in 1986, the lack of endorsement 
of the Gay Political Caucus. Even Justice 0O’Connor could not 
have contemplated that reviewing the Pfotality of the 
circumstances" would permit defendants to overcome plaintiffs’ 
claims ' in voting rights cases, by offering different, 
conflicting and inconsistent excuses for the defeat of each Black 
candidate, particularly when a clear pattern of racial bloc 
voting has been demonstrated. In fact, the Gingles court was 
clearly not persuaded by the testimony of the defendant’s expert 
that in the relevant elections in that case "financing is an 
issue; the general approval rating of the candidate is an issue: 
the candidate’s skill as a candidate and the skill of the persons 
who are managing his or her campaign are important; name I.D. is 
important; ballot position is important. The general atmosphere 
in that campaign year is important." Gingles, Testimony of 
Defendants’ Expert, Thomas Brooks Hofeller Trial Transcript at p. 
1388. 

 



  

black candidates." Westwego Citizens for a Better Government v 
  

Westwego 2872 P.24 1201, 1208, n.7 (5th Cir. 1989) (emphasis   

added). As the Fifth Circuit noted in both Westwego and Gretna, 
  

because "when there are only white candidates to choose from it 

is ‘virtually unavoidable that certain white candidates would be 

supported by a large percentage of . . . black voters,’ the 

evidence most probative of racially polarized voting must be 

drawn from elections including both black and white candidates." 

  

Id., quoting Citizens for a Better Gretna v. Gretna, 834 F.2d 

496, 502 {5th Cir." 1987). This Court’s analysis is properly 

focussed on the contested district judge elections involving 

Black and white candidates analyzed by the plaintiffs’ expert, 

Dr. Engstrom. 2 

II. Defendants Improperly Use the Pool of Eligible Black 
Lawyers to Determine the Representation of Blacks 
on the Harris County Judicial Bench 

Defendants and defendant-intervenor continue to improperly 

assert employment discrimination principles to rebut the 

plaintiffs’ clear showing of inequity in the representaticn of 

  

Spefendant-intervenors also claim that "the over-all success rate of blacks in winning district judge seats in Harris Count is 
32%." This claim is similarly flawed. In order to reach this inflated and misleading figure, defendant-intervenor includes 
uncontested elections, and two elections from 1978. See 
Defendant-intervenors’ Post-Trial Brief at PD. 87. Plaintiffs have clearly limited their analysis to district judge elections since 1980. Moreover, uncontested races, like races in involving 
white candidates only tell us nothing about the tendency of white bloc voting to defeat Black candidates. 

6 

 



Blacks on the district court bench in Harris County. Citing 

Wards’ Cove and other employment cases, the defendants argue that   

the court must look at the eligible pool of Black lawyers in 

Harris County. 

This theory is entirely misapplied in the voting rights 

arena. First, it assumes that the right plaintiffs articulate in 

this case is the right of Black lawyers to be elected to the 

Judiciary. In accordance with the Voting Rights Act, plaintiffs 

bring this action on behalf of Black voters, who seek to 

effectively exercise the franchise with regard to district judge 

elections in Harris County. 

Second, the defendant’s theory would only be applicable to 

this case if plaintiffs were arguing that unqualified Black 
  

candidates should be elected to the district judge bench. 

Plaintiffs do not seek to challenge the minimum qualification 

requirements for judicial office, as one might challenge the 

stated necessary qualifications for a job in an employment case. 

Plaintiff-intervenors have clearly demonstrated that in 16 of 17 

contested district judge elections, Black voters have 

overwhelmingly supported qualified Black candidates.   

Finally, this same issue was raised by the defendants in the 

  

recently decided Rangel v. Mattox case and clearly rejected by 

the court. As Judge Vela noted, "judges are elected by the 

public and not merely other attorneys. Additionally, the Court 

believes the ’small pool’ argument is circular in that both sides 

agree that noe reason for the ‘small pool’ is due to past  



  

patterns of educational discrimination." Rangel v. Mattox, Civ. 
  

Action No. B-88-053 (S.D. Texas, July 28, 1989), Slip Op. at p.7, 

n.1o0. 

Using an "eligible pool of Black attorneys" analysis would 

require then, that in cases challenging legislative seats, courts 

look only at the eligible pool of Black candidates =-- that is 

those citizens that meet the residency and age requirements often 

imposed for legislative candidacies. Moroever, plaintiff- 

intervenors note that the 3.8 percentage figure used by 

defendants in the case at hand, to refer to the eligible pool of 

Black lawyers in Harris County, translates in raw numbers to 466 

eligible Black lawyers. See, Defendants’ Exhibit D-4, Table Two. 

Clearly, there is a large pool of Black attorneys eligible to run 

for district judge office in Harris County. Defendants’ argument 

that "[t]here simply are not many minority lawyers who are 

eligible to serve as district judge in the relevant counties in 

Texas," is entirely without merit. See Defendants’ Post-Trial 

Brief at p. 17. 

IIT. Plaintiff-intervenors’ Claims Would Not be Defeated 
Even if the Court Were to Find the Countywide 
Election System for District Judges Rational and 
Compelling 

Defendants and defendant-intervenors argue that this court 

should uphold the countywide system of electing district judges 

because this system is rooted in the tradition of the state of 

Texas, and serves to minimize special interest influence of 

8 

 



  

p » 

judges. Defendant-intervenors argue that changing the current 

system would be costly (see Testimony of Ray Hardy, District 

Clerk for Harris County), and would require a sweeping 

reorganization of the state’s court administration. Plaintiff- 

intervenors have addressed these arguments in both pre and post- 

trial briefs. 

Plaintiff-intervenors do note however, that even if the 

court found the maintenance of a countywide system of electing 

district judges in Harris County to be rational and compelling, 

plaintiff-intervenors claims would not be defeated. Plaintiff- 

intervenors have alleged that an alternative at large systen, 

such as limited or cumulative voting could provide an appropriate 

remedy for Black voters in Harris County. This issue could be 

explored in great detail at the remedy stage of this litigation. 

For all of the foregoing reasons, this court should find 

that the current system of electing district judges in Harris 

County, Texas is violative of secton 2 of the Voting Rights Act 

of 1965, as amended. 

 



Of Counsel: 

MATTHEWS & BRANSCOMB 
A Professional Corporation 

Respectfully submitted, 

Jhowik, APL 
  

MELT 27 ORES: J 
VELL o. IFILL 

NAACP es Defense & 
Educational Fund, Inc. 

99 Hudson Street 

15th Floor 

New York, NY 10013 

(212) 219-1900 

GABRIELLE K. MCDONALD 

301 Congress Avenue 

Suite 2050 

Austin, Texas 78701 

{512) 320-5055 

Attorneys for Plaintiff- 
Intervenors, Houston Lawyers’ 

Association, et al. 

 



  

CERTIFICATE OF SERVICE 

I hereby certify that on this 13th day of October, 1989, 

a true and correct copy of Plaintiff-Intervenors' Reply to Post- 

Trial Briefs was mailed 

first class United States mail, 

William L. Garrett 
Brenda Hull Thompson 
Garrett, Thompson & Chang 

8300 Douglas, Suite 800 
Dallas, TX 75225 

Rolando L. Rios 
Southwest Voter Registration 

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

Susan Finkelstein 
Texas Rural Legal Aid, Inc. 
201 N. 8t. Mary's, Sulte 521 
San Antonio, TX 78205 

Edward B. Cloutman, III 

Mullinax, Wells, Baab & 

Cloutman, P.C. 

3301 Elm 

Dallas, TX 75226-9222 

Jim Mattox 

Mary F. Keller 

Renea Hicks 
Javier Guajaro 
Attorney General's Office 

P.O. Box 12548 
Capitol Station 
Austin, TX 78711 

counsel of record in this case by 

postage pre-paid, as follows: 

J. Eugene Clements 
John E. O'Neill 

Evelyn V. Keys 

Porter & Clements 

700 Louisiana, Suite 3500 

Houston, TX 77002-2130 

Michael J. Wood 

Attorney at Law 

440 Louisiana, Suite 200 

Houston, TX 77002 

Ken Oden 
Travis County Attorney 
P.O. Box 1748 
Austin, TY 781767 

David R. Richards 
Special Counsel 

800 W. 7th St. 
Austin, TX 78701 

Robert H. Mow, Jr. 

Hughes & Luce 

2800 Momentum Place 

1717 Main Street 

Dallas, TX 75201 

Gabrielle K. McDonald 

Matthews & Branscomb 

A Professional Corporation 
301 Congress Avenue 

Suite 2050 

Austin, Texas 78701 

Havidp. 4.340 
  

RRR 

I ve 

1£i3) 

Fl Plaintiff-Intervenors 

Houston Lawyers' Association