Court Opinion

    IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

No. 90-8014 

  

LEAGUE OF UNITED LATIN AMERICAN 

CITIZENS COUNCIL NO. 4434, 
Plaintiffs-Appellees, 

and 

JESSE OLIVER, ET AL., 
Intervening 
Plaintiffs-Appellees, 

versus 

WILLIAM P. CLEMENTS, ETC., ET AL., 
Defendants, 

JIM MATTOX, ET AL., 
Defendants-Appellees, 
Appellants, 

versus 

JUDGE F. HAROLD ENTZ, ETC., 

JUDGE SHAROLYN WOOD, ETC., 

and GEORGE S. BAYOUD, JR., ETC., 
Defendants-Appellants, 

and 

TOM RICKHOFF, SUSAN D. REED, JOHN 

J. SPECIA, JR., SID L. HARLE, SHARON 

MACRAE and MICHAEL P. PEDAN, Bexar 

County, Texas State District Judges, 
Appellants. 

  

Appeals From the United States District Court 

for the Western District of Texas 

  

 



  

{May 11, 1990 ) 

Before KING, JOHNSON, and HIGGINBOTHAM, Circuit Judges. 

HIGGINBOTHAM, Circuit Judge: 

This is a voting rights suit challenging the election of 

district judges on a county-wide basis in Texas. The suit was 

filed in a United States District Court by the League of United 

Latin American Citizens against the Attorney General of Texas, 

the Secretary of State, and other state officials, seeking a 

declaratory judgment that the at-large election of state district 

judges in nine targeted counties is illegal under § 2, 42 U.S.C. 

§ 1973, and violative of the fourteenth and fifteenth amendments 

of the United States Constitution. Plaintiffs requested the 

district court to enjoin further elections and to impose a 

districting scheme that included single-member districts. Texas 

has 254 counties, but the suit attacked only Harris, Dallas, 

Tarrant, Bexar, Travis, Jefferson, Lubbock, Hector, and Midland 

counties.l! These nine counties have more than one district judge 

elected county-wide, and elect 172 of the state’s 390 district 

judges. As we will explain, the suit targets Texas law requiring 

election of a state district judge from a district no smaller 

than the county, the geographical area of its jurisdiction. 

  

1 Ten counties actually are targeted. The challenged 72nd 

Judicial District encompasses two counties, Lubbock and Crosby. 

We will refer to the nine targeted Judicial Districts as nine 

counties. 

 



  

After a bench trial, the district court found violations of 

the Voting Rights Act in each of the nine counties, but rejected 

the constitutional arguments, finding that plaintiffs had failed 

to prove that the electoral system was instituted or maintained 

with discriminatory intent. on January 2, 1990, the district 

court enjoined defendants from: 

calling, holding, supervising and certifying elections 

for state district judges in Harris, Dallas, Tarrant, 

Bexar, Travis, Jefferson, Lubbock, Hector and Midland 

Counties under the current at-large system with an 

order for interim relief. 

The district court divided the nine counties into electoral sub- 

districts, tracing the districts of state representatives and the 

precinct lines of County Commissioners or Justices of the Peace. 

The district court’s order affected 115 of the 172 district 

courts. The district court also ordered a non-partisan election 

for May 5, 1990, with any run-off to be held on June 2, 1990. We 

stayed the district court’s order pending this appeal. 

Defendants first argue that the Voting Rights Act as amended 

in 1982 has no application to the election of judges. This 

argument rests on the assertion that the use by Congress of the 

word "representatives" in section 2(b), added by amendment in 

1982 and popularly known as the Dole compromise, unambiguously 

excluded elected judges because elected judges are not 

representatives. This argument in "its broadest form--section 

2(b) of the Act has no application to any judicial elections--was 

rejected by this court in Chisom v. Edwards, 839 F.2d 1056 (5th 

   



A] 

» 

cir.), cert. denied sub nom. Roemer V. Chisom, 109 S.Ct. 390 
  

(1988). Relatedly, but with less sweep, defendants argue that 

section 2(b) has no application to state district judges because 

such judges do their judging singly and not as part of a 

collegial body. Finally, defendants attack the findings below as 

well as the ordered remedy. In addition to quarrels with the 

sufficiency of proof that the votes of minorities were diluted, 

defendants argue that the findings are flawed by the erroneous 

legal conclusion that the contribution of partisan voting to 

election outcomes is not relevant. 

This panel is, of course, bound by the earlier panel 

decision in Chisom. Nonetheless, we discuss at some length its 

holding that Section 2 applies to judicial elections because it 

is relevant to the issue we do decide with respect to trial 

judges and because we are persuaded that Chisom’s decision 

regarding the election of appellate judges was correct. We 

‘reject the argument that we should extend Chisom. We hold that 

the at-large election of trial judges does not violate Section 

2(b) of the Voting Rights Act. Because we decide the case on 

this ground we do not reach defendants’ other contentions. 

I 

It is vigorously argued that section 2 of the Voting Rights 

Act has no application to judicial elections because judges are 

not representatives. The argument in its strongest form is that 

the word "representatives," found in section 2(b), unambiguously  



  

excludes judges because judges have no constituents. The 

argument continues that there is no occasion for exploring 

legislative history because the inquiry ends with the plain words 

of the statute. It is conceded that the language of section 2(b) 

is largely drawn from White v. Regester, 412 U.S. 755 (1973), 
  

except that it substituted the word "representatives" for 

"legislators," at the least to insure it reached elected 

executive officials. Defendants argue that although 

"representatives" may encompass executive officials, the term 

does not encompass judges. It is implicit that to be 

unambiguously inapplicable to judges, the word must be certain of 

only one relevant meaning and that meaning must exclude judges. 

That is, the relevant difference between elected judges and other 

representatives must be universally plain. = Defendants must 

concede, however, that at one level of generality judges are 

representatives. The history of electing judges and the 

political impulses behind that choice are powerful evidence of 

considered decisions to keep judges sensitive to the concerns of 

the people and responsive to their changing will, an endeavor 

hardly antithetical to common law courts. As we will explain, 

this reality belies the bold assertion that judges are in no 

sense representatives. 

While the Framers of the Consitution might not have viewed 

appointed judges as "representatives" like legislators or 

executive officials, we are pointed to no evidence of the Framers 

 



views on the status of elected judges, an unfamiliar phenomenon. 

This is not surprising. Judges were not elected at the time the 

Constitution was written and ratified. The thirteen original 

states employed various methods of judicial selection, seven 

using appointment by the legislature, five by governor and 

council, and one by governor and legislature. See Winters, 

Selection of Judges--an Historical Introduction, 44 Tex. L. Rev. 
  

1081, 1082 (1966). Texas became the first new state to adopt the 

federal method of selecting judges, by executive appointment with 

confirmation by the state senate. It did so when it joined the 

United States in 1845. Id.; Tex. Const. art. IV., § 5 (1845). 

Electing judges was a reform measure aimed at making judicial 

selection more democratic. 

Popular sovereignty and popular control of public 

affairs through the elective system were hallmarks of 

the Jacksonian era, and, not surprisingly, the movement 

for popular election of judges dates from this period. 

Dissatisfaction with the judiciary was widespread among 

Jacksonians. It arose from several factors including a 

general disaffection with the legal profession, abuses 

in the judicial appointment systems, and a feeling, 

carried over from the Jeffersonian period, that the 

courts were basically undemocratic. Consequently, the 

abolition of tenure during good behavior and the 

adoption of the elective system were advocated as 

reform measures and were hailed as in accord with the 

egalitarian spirit of the times. 

Note, The Equal Population Principle: Does It Apply to Elected 
  

Judges?, 47 Notre Dame L. Rev. 316, 317 (1971). 

The experimentation with self-governance and the concept of 

sovereignty in the populace as a whole thus spread to the 

judiciary. The first judicial elections took place as early as  



1812 for Georgia lower court judges, Ga. Const. art. III, § 4 

(1812), and in 1832 Mississippi adopted a completely elective 

judiciary. Miss. Const. art. IV, §§ 2, 11, 16 (1832). The 

change from appointed to elected judges can be marked by New 

York’s adoption of judicial elections in 1846. N.Y. Const. art. 

vI, §8 2, 4, 12, 14 (1846). 311 new states entering the union 

after that date, until the entrance of Alaska in 1958, used 

elections as their method of judicial selection, and Georgia, 

Maryland, Virginia, and Pennsylvania switched from appointment to 

election. Winters, Selection of Judges, 44 Tex. L. Rev. at 1082. 
  

In short, it is fair to conclude that electing judges was viewed 

as being more democratic and as a way of ensuring that judges 

remained sensitive to the concerns of the people. 

It is contended that judges are oath bound to obey the law 

and fairly decide in an impartial manner, and thus are not 

representatives. Yet, executive officials, who are considered 

representatives, are bound by the same oath. While judges are 

indeed far removed from the 1logrolling give and take of the 

legislative and even executive processes, the effort to assure 

"sensitivity" and "accountability" through elections is no more 

than an insistence that the judges represent the people in their 

task of deciding cases and expounding the law. State judges, 

wearing their common law hats, face decisions such as whether to 

adopt a comparative fault standard, and in doing so represent the 

people in a very real sense. At least at this level of  



  

generality judges are indisputably representatives of voters. 

Saying so in no way steps on the equally indisputable difference 

between judges and other repesentatives--that judges do not 

represent a specific constituency. 

In arguing that Congress could not have meant to include 

judicial elections within the scope of Section 2, the defendants 

point to the specter of single-member districts for judges whose 

geographical jurisdiction exceeds the electing district. This 

in terrorem vision of judges biased in favor of a small portion 
  

of the people over whom they have jurisdiction puts 

representation at it lowest and most troubling level. It is 

flawed, however, because it rests in turn on the assumption that 

such judges as single officials, as distinguished from members of 

collegial bodies, are subject to the restraints imposed by § 2(b) 

of the Act upon at-large elections, a proposition we otherwise 

here reject. 

If we are correct in rejecting the assertion that the 

application of Section 2 of the Voting Rights Act is not answered 

by the word "representative," we must turn to legislative 

history, cautious as we must be over that enterprise. Then, in 

the absence of plain signals of legislative purpose, the outcome 

must turn on the question we ask. Should we ask whether we are 

persuaded that Congress did not intend to withdraw coverage, Or 

should we ask whether Congress intended to extend coverage? The 

choice between the two possible questions is important. This 

 



  

choice is informed, if not controlled, by whether the Voting 

Rights Act before the 1982 Amendments covered judicial elections. 

If the answer is that the Act plainly did cover judicial 

elections before the 1982 amendments, we then turn to whether the 

amendments require the exclusion of judicial elections from the 

Act’s coverage. It is suggested that the results test of Section 

2 (b) represented a fundamental shift in the operation of the Act, 

that is, that adopting section 2(b) was not a question of 

retrenchment or expansion of existing coverage but was, rather, 

an entirely new direction. As such, section 2(b) should not be 

read to reach judicial elections unless Congress explicitly said 

so. See Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105 
  

S.Ct. 3142 (1985). 

We turn first to whether the Voting Rights Act covered 

judicial elections before 1982. We then consider the 1982 

amendments to the Act, and review the legislative history of the 

amendments to determine whether Congress intended to exclude 

judicial elections from coverage under the Act. Given some 

evidence that Congress intended to cover judicial elections, we 

turn to the question of whether Congress was required to 

specifically mention the election of judges in the statute. 

After determining that the election of state appellate judges 

have no claim to the protections of federalism not shared by 

other institutions of state government, we look at the interplay 

of sections 2 and 5 to determine whether differences between the 

 



two sections preclude the application of section 2 to judicial 

elections despite section 5’s coverage of those same elections. 

A 

Section 2, before the 1982 amendments, provided: 

$:1973. Denial or abridgement of right to vote on 

account of race or color through voting 

qualifications or prerequisites. 

No voting qualification or prerequisite to voting, 

or standard, practice, or procedure shall be imposed or 

applied by any State or political subdivision to deny 

or abridge the right of any citizen of the United 

States to vote on account of race or color, or in 

contravention of the guarantees set forth in section 

1973b(£f) (2) of this title. 

42 U.S.C. § 1973 (1978). 

Section 2 by its express terms reaches state judicial 

elections. "Vote" or "voting" was defined as including "all 

action necessary to make a vote effective in any primary, special 

or general election . . . with respect to candidates for public 

or party office and propositions for which votes are received in 

an election." 42 U.S.C. § 19731(c) (1). It is true that there is 

no mention of judges or the judiciary. There also is no mention 

of any other specific office. Judges are "candidates for public 

or party office" elected in a "primary, special, or general 

election." There is further evidence of congressional intent to 

reach all types of elections, rather than to pick and choose for 

regulation only some from the myriad of state elections, in the 

fact that votes on propositions are within the purview of the 

Act. Section 14(c) (1), 42 U.S.C. § 19731(c) (1).  



  

Defendants argue that the Act is silent as to judges, so it 

must be construed as not including judicial elections. They 

argue that, while judges in Texas are "candidates for public 

office," it is uncertain whether Congress, by providing a broad 

definition of "vote," also intended to create a private remedial 

cause of action of similar scope in Section 2. Congress 

expressly defined the term "vote" or "voting," however, and 

nothing suggests that Congress did not intend that definition to 

apply throughout the Act, including Section 2. 

Congress intended that its 1965 Act provide protection 

coextensive with the Constitution. Justice Stewart reiterated 

this in Mobile v. Bolden: 
  

[I]t is apparent that the language of section 2 no more 

than elaborates upon that of the Fifteenth Amendment, 

and the sparse legislative history of section 2 makes 

clear that it was intended to have an effect no 

different from that of the Fifteenth Amendment itself . 

446 U.S. 55, 60-61 (1980). We reject the implicit suggestion 

that the protections of the Fifteenth Amendment do not extend to 

minorities whose right to vote in judicial elections is abridged. 

The Fifteenth Amendment applies to all elections, and Congress 

intended the Voting Rights Act of 1965 to apply to all elections. 

We would not lightly conclude that the 1965 Act would allow a 

state to have judicial elections separate from other elections 

and impose literacy tests, poll taxes, or other restrictions on 

voting just because the elections were for judges. 

2) 

 



By its terms, then, the 1965 Act included judicial 

elections. The question remains whether the 1982 amendments 

exempted judicial election from the Act’s coverage. 

B 

Congress amended Section 2 in 1982 in partial response to 

  the Supreme Court’s decision in City of Mobile v. Bolden, 446 

U.S. 55 (1980). Thornburgh v. Gingles, 478 U.S. 30, 106 S.Ct. 

2752, 2758 (1986). Bolden held that in order to establish a 

violation under Section 2 of the Act a plaintiff must prove 

purposeful racial discrimination. Bolden, 446 U.S. at 66. 

Congress incorporated a "results test" into Section 2(a) to 

diminish the burden of proof necessary to prove a violation. 

Congress also created an entirely new subsection, Section 2(b), 

which codified the legal standards enunciated in White Vv. 

Regester, 412 U.S. 755 (1973) .2 As amended in 1982, Section 2 
  

now provides: 

(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 
  

4 In White v. Regester the Supreme Court interpreted the 

requirements of the Voting Rights Act and the U.S. Constitution 

with respect to claims of vote dilution: 

The plaintiffs’ burden is to produce evidence to 

support findings that the political processes leading 

to nomination and election were not equally open to 

participation by the group in question--that its 

members had less opportunity than did other residents 

in the district to participate in the political 

processes and to elect legislators of their choice. 

412 U.S. at 766.  



  

abridgement of the right of any citizen of the United 

States to vote on account of race or color, or in 

contravention of the guarantees set forth in section 

1973b(f) (2) of this title, as provided in subsection 

(b) of this section. 

(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 (1982). 

The plain language of Section 2(a) reaches judicial 

elections, using the same language as the 1965 Act, referring 

generally to "voting" and "vote," definitions continued unchanged 

under the 1982 amendments. The legislative history of the 1982 

amendments does not indicate that the terns "yote" or "voting" do 

not include judicial elections, or that "candidates for public 

office" does not include judges. 

Section 2(b) is a new section added in the 1982 amendments. 

Section 2(a) refers to "denial or abridgement of the right . . . 

to vote on account of race or color . aliyy us provided in 

subsection (b) of this section." Section 2(a) anticipates that 

subsection (b) will define how a violation of subsection (a) can 

be established. There is no reason to suppose that subsection 

13 

 



(b) defining the type of proof necessary under Section 2 was 

meant to exclude judges, except for its use of the term 

"representatives." As previously noted, this word does not 

unambiguously exclude judges, for although the office is 

certainly not representative in every sense, elected judges 

nonetheless reflect the views of the electors choosing them to be 

responsible for administering the law. We therefore turn to the 

legislative history of the 1982 amendments to determine whether 

Congress intended to exclude judicial elections from coverage. 

That Congress did not intend to exclude judges is indicated 

by the use of the word "candidates" interchangeably with 

"representatives" in the legislative history. Even Senator Dole, 

who proposed section 2(b), stated: 

citizens of all races are entitled to have an equal 

chance of electing candidates of their choice, but if 

they are fairly afforded that opportunity, and lose, 

the law should offer no redress. 

S. Rep. No. 417, 97th Cong., 2d Sess. 193 (Additional Views of 

Senator Robert Dole), reprinted in 1982 U.S. Code Cong. & Admin. 

News 177, 364 (emphasis added), and 

[T]he standard is whether the political processes are 

equally "open" in that members of a protected class 

have the same opportunity as others to participate in 

the political process and to elect candidates of their 

choice. 

Id. (emphasis added). 

In the one place where the judiciary is specifically 

mentioned in the legislative history of the 1982 amendments, the  



  

report of the subcommittee on the Constitution states that the 

term "‘political subdivision’ encompasses all governmental units, 

including city and county councils, school boards, judicial 

districts, utility districts, as well as state legislatures." 

Report of the Subcommittee on the Constitution of the Committee 

of the Judiciary, S. Rep. 417, 97th Cong., 2d Sess., reprinted in 
  

1982 U.S. Code Cong. & Admin. News 177, 323 (emphasis added). Of 

course, a brief statement in a subcommittee report not in favor 

of the amendments is not a definitive description of the scope of 

the Act, but no other comments on the judiciary were made. The 

proponents of the changes to the Act did not contest this 

description, although they would have had incentive to do so to 

alleviate any fears of such extended coverage if such a broad 

scope of applicability vers not intended. 

The Senate and House hearings regarding the 1982 amendments 

contain various references to judicial elections, primarily in 

the context of statistics presented to Congress indicating the 

progress made by minorities under the Act up to that date. The 

charts indicated when minorities were elected to office, and 

included judicial election results. See Extension of the Voting 

Rights Act: Hearings on H.R. 1407, H.R. 1731, H.R. 3112, H.R. 
  

3798, H.R. 3473 and H.R. 3498 Before the Subcomm. on Civil and 
  

Constitutional Rights of the House Comm. on the Judiciary, 97th 
  

Cong. 1st Sess. 38, 193, 239, 280, 502, 574, 804, 937, 1182, 

1188, 1515, 1528, 1535, 1745, 1839, 2647 (1981); Voting Rights 
  

15 

 



A] 

3» 

Act: Hearings on S. 53, S. 1761, S. 1975, S. 1992, and H.R. 3112 i 
  

Before the Subcomm. on the Constitution of the Senate Comm. on 
  

the Judiciary, 97th Cong. 2d Sess. 669, 748, 788-89 (1982). 

Statistics on judicial elections were considered by Congress in 

amending the Act, and there is no indication that Congress meant 

to exclude these elections from coverage. 

Some of the legislative history of the 1982 amendments 

indicates that Congress intended to return to pre-Bolden 

standards, and did not think that it was creating a new and much 

more intrusive private cause of action.? As we will explain, at 

least Senator Hatch feared the language of § 2(b) would be much 

more intrusive, expressing concern that its uncertainty would 

lead to proportional representation. 

The principal focus of the House debates centered on Section 

5, but the Senate debates were centered on the meaning of the 

section 2 amendments. Nonetheless, there was some discussion in 

the House, and at least some witnesses argued that "the amended 

section 2 . . . would restore to black Southerners the right to 

challenge alleged discriminatory election schemes which were 

developing before Mobile, [and that] notwithstanding the Court’s 

claim to the contrary in Mobile, the intent test first became a 

constitutional standard in 1976 with Washington v. Davis, an 

4 The Fifth Circuit found the vote dilution claim in Mobile Vv. 

Bolden to be problematic, since no successful dilution claim 

expressly grounded on section 2 had been made previously. 571 

F.2d 238, 243 (5th Cir. 1978). This weakens claims that the new 

section 2 was merely returning to pre-Bolden standards. 

  

  

 



  

employment case." Boyd & Markman, The 1982 Amendments to the 
  

  

Voting Rights Act: A legislative History, 40 Wash. & Lee L. Rev. 
  

1347, 1366 (citing comments by James Blacksher and David 

Walbert). Congressman Sensenbrenner argued that the Rodino 

amendment to section 2 was necessary in order to clarify the 

standard of proof required in order to establish violations of 

the Act. 127 Cong. Rec. H6850 (daily ed. Oct, 1981) at H6983. 

In the Senate Report on the Amendments the purpose of the 

bill was stated as 

designed to make clear that proof of discriminatory 

intent is not required to establish a violation of 

Section 2. It thereby restores the legal standards 

based upon the controlling Supreme Court precedents, 

which applied in voting discrimination claims prior to 

the litigation involved in Mobile v. Bolden. The 

amendment also adds a new subsection to Section 2 which 

delineates the legal standards under the results test 

by codifying the leading pre-Bolden vote dilution case, 

White v. Regester. 

  

  

  

  

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

Cong. & Admin. News at 179 (emphasis added). 

Senator Hatch opposed the change, arguing that it "would 

redefine the concept of ‘discrimination’ and would ‘transform the 

Fifteenth Amendment and the Voting Rights Act from provisions 

designed to ensure equal access and equal opportunity in the 

electoral process to those designed to ensure equal outcome and 

equal success.’" Boyd, Voting Rights Act Amendments, 40 Wash. & 
  

  Lee L. Rev. at 1389 (quoting Hearings on the Voting Rights Act 

Before the Senate Subcommittee on the Constitution of the 
  

17 

 



  

Committee on the Judiciary, 97th Cong., 2d Sess. 3 (1982)). But, 
  

Senator Mathias, a proponent of the bill, argued: 

The House amendment is needed to clarify the burden of 

proof in voting discrimination cases and to remove the 

uncertainty caused by the failure of the Supreme Court 

to articulate a clear standard in the City of Mobile Vv. 

Bolden. . . . We are not trying to overrule the Court. 

The Court seems to be in some error about what the 

legislative intent was . . .. Prior to Bolden, a 

violation in voting discrimination cases [could] be 

shown by reference to a variety of factors that, when 

taken together, added up to a finding of illegal 

discrimination. But in Bolden, the plurality appears 

to have abandoned this totality of circumstances 

approach and to have replaced it with a requirement of 

specific evidence of intent . . . this is a requirement 

of a smoking gun, and I think it becomes a crippling 

blow to the overall effectiveness of the Act. 

Hearings on the Voting Rights Act Before the Senate Subcommittee 
  

on the Constitution of the Committee on the Judiciary, 97th 
  

Cong., 2d Sess. 3, 199 (1982). 

Senator Hatch persisted that the results test represented a 

new test, but supporters of the bill took issue with this view. 

Laughlin McDonald of the ACLU argued that "prior to Mobile, it 

was understood by lawyers trying these cases and by the judges 

who were hearing them that a violation of voting rights could be 

made out upon proof of a bad purpose or effect . . . Mobile had a 

dramatic effect on our cases." ¥4. at 369. Defenders of the 

amendment assumed that the results test represented a restatement 

of the law prior to Mobile. 

Critics of the results test argued that even if the lower 

federal courts had adopted a results test in their pre-Mobile 

interpretation of section 2, the original intent of Congress had 

18 

 



been the establishment of a test in section 2 using the 

traditional standard of intent or purpose. Boyd, Voting Rights 

Act Amendments, 40 Wash. & Lee L. Rev. at 1405 (citing Appendix 
  

to Additional Views by Senator Hatch, S. Rep. No. 417, 97th 

cong., 2d Sess. 36 (1982)). Proponents responded by arguing that 

there was no evidence that Congress meant an intent test to 

apply. The Senate Report of the Committee on the Judiciary 

adopted this view, citing Attorney General Katzenbach’s testimony 

during the hearings on the Voting Rights Act of 1965 to the 

effect that "section 2 would ban ‘any kind of practice . . . if 

its purpose or effect was to deny or abridge the right to vote on 
  

account of race or color." S. Rep. 417, 97th Cong., 2d Sess., 

reprinted in 1982 U.S. Code cong.& Admin. News at 194 (citing 

Hearings on S. 1564 before the Committee on the Judiciary, 89th 
  

Cong., lst Sess., 191 (1965)). 

Again, while this legislative history generally indicates an 

intent to return to pre-Bolden standards rather than create a 

more intrusive new cause of action, it is not conclusive. 

Particularly when the 1982 amendments are considered in light of 

the Supreme Court’s interpretation in Gingles, we cannot conclude 

that the 1982 amendments to section 2 worked no fundamental 

changes from the pre-Bolden interpretation of the Act. 

Few would quarrel with the assertion that Section 2(b) as 

interpreted has worked a fundamental change in the Act, highly 

intrusive to the states. We have insisted in other contexts that  



  

Congress clearly state its intent to supplant traditional state 

prerogatives. Judicial insistence upon clear statement is an 

important interpretative tool vindicating concern for separation 

of powers and federalism. See Atascadero State Hospital wv. 
  

Scanlon, 473 U.S. 234, 105 S.Ct. 3142 (1985): Pennhurst State 

  

School and Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900 
  

(1984) (Pennhurst II). This insistence upon "an unequivocal 
  

expression of congressional intent," Pennhurst II, 465 U.S. at 

99, 104 S.Ct. at 907, is based upon the fundamental nature of the 

interests at stake. "The ‘constitutionally mandated balance of 

power’ between the states and the Federal Government was adopted 

by the Framers to ensure the protection of ‘our fundamental 

liberties.’" Atascadero, 105 S.Ct. at 3147 (quoting Garcia Vv. 
  

San Antonio Metropolitan Transport Authority, 469 U.S. 528, 572, 
  

105 S.Ct. 1005, 1028 (Powell, J., dissenting)). These mighty 

principles do not carry us very far here. Congress has clearly 

expressed the Act’s application to the states, and has clearly 

expressed its intent that violations of the Act be determined by 

a results test rather than an intent standard. By these actions, 

the Act, with all of its intrusive effect, has been made to apply 

to the states. The federalism concerns underlying insistence 

upon an explicit statement that state judicial elections were 

jncluded in the Act’s coverage rest upon the premise that the 

Act’s application, profoundly intrusive as it is, is somehow 

uniquely intrusive in its limits upon an elected state appellate 

20 

 



judiciary. This contention is by necessity a demand for the 

exemption of judicial elections from the entire act. But, 

Section 5, commonly seen as the most far reaching of the Voting 

Act provisions, see South carolina v. Katzenbach, 383 U.S. 301, 
  

358-62 (1966) (Black, J., dissenting), has allowed no escape for 

elected state judiciaries. Haith v. Martin, 618 F. Supp. 410 
  

(E.D.N.C. 1985), aff’d mem., 477 U.S. 901, 106 S.Ct. 3268 (1986). 

As an inferior court we are bound by the holding of the Supreme 

Court that judicial elections are covered by § 5 of the Act, a 

result explicitly urged by then Solicitor General Charles Fried 

and the then head of the Civil Rights Division, Assistant 

Attorney General William Bradford Reynolds. The same officials 

argued in Chisom that § 2(b) of the Act is equally applicable. 

Cc 

Indeed, we are asked to hold that section 2 could not apply 

to judicial elections while section 5 does apply, although it 

also makes no express reference to judges. In Haith the district 

court held that judicial elections are covered by section 5 and 

the preclearance requirements of the Act. The district court 

found, using an analysis similar to that used by this circuit in 

Voter Information Project v. Baton Rouge, 612 F.2d 208 (5th Sir. 
  

1980), that although the one-person, one-vote principle may not 

apply to judicial elections, claims with respect to the Voting 

Rights Act do not deal with numerical apportionment, but with  



discrimination. 4 The court held that "the Act applies to all 

voting without any limitation as to who, or what, is the object 

of the vote." 618 F. Supp. at 413.5 

The defendants have not raised any compelling reason to 

distinguish between Section 5 and Section 2 with respect to their 

applicability to judicial elections, at least as to judges who 

act collegially. To hold otherwise would lead to the incongruous 

result that if a jurisdiction had a discriminatory voting 

procedure in place with respect to judicial elections it could 

not be challenged, but if the state sought to introduce that very 

procedure as a change from existing procedures, it would be 

  

4 The one-person, one-vote principle mandated by the equal 

protection clause of the Fourteenth Amendment was held not to 

apply to the apportionment of state judiciaries in Wells Vv. 

Edwards, 347 F. Supp. 453 (N.D. La. 1972) (3-judge court), aff’d 

mem., 409 U.S. 1095 (1973) (three justices, dissenting). Wells 

was distinguished from cases challenging election practices in 

Lefkovits v. State Board of Elections, 400 F. Supp. 1005 (N.D. 

I11. 1975) (3-judge court), aff’d mem., 424 U.S. 901 (1976), 

where the court stated: 

[Wlhen a judge is to be elected or retained, regardless 

of the scheme of apportionment, the equal protection 

clause requires that every qualified elector be given 

an equal opportunity to vote and have his vote counted. 

  

  

Id. at -1012. This was the precise point made by Solicitor 

General Fried in his successful argument to the Supreme Court 

that it should summarily affirm Haith v. Martin. 

5 The changes required to be precleared in Haith had to do 

with the elections of trial judges. The district court did not 

reach the merits of any vote dilution claims, for it had no 

jurisdiction to do so. New voting practices must be submitted to 

either the Attorney General or the D.C. Circuit for preclearance. 

Other district courts only have jurisdiction to decide whether a 

practice is a change requiring preclearance. Consequently, the 

merits of a vote dilution claim with respect to trial judges was 

not before the Supreme Court.  



subject to Section 5 preclearance and could not be implemented. 

Sections 2 and 5 operate in tandem, with Section 2 prohibiting 

the continued use of discriminatory practices, and Section 5 

preventing the imposition of new discriminatory practices to 

replace those condemned in those areas subject to preclearance. 

Section 5 contains language defining its scope that is almost 

jdentical to the language in Section 2: "any voting 

qualification or prerequisite to voting, or standard, practice, 

or procedure with respect to voting a. « as? 

There are important differences in the two sections, 

however, for Section 5 avblies. only to changes the covered 

jurisdictions seek to implement. Section 5 requires preclearance 

of any new voting practices and procedures, and in determining 

whether or not a new practice is entitled to preclearance, only 

the effect of the new practice is considered. City of ILockhart 

v. United States, 460 U.S. 125, 103 S.Ct. 998 (1983); Beer Vv. 
  

United States, 425 U.S. 130 (1976). This has been described as a 
  

retrogression test, with preclearance denied only if the new 

practice has a retrogressive effect, rather than a results test, 

for the effects of the existing system on minorities are not 

considered. The real difference is that in section 2 the entire 

scheme of voting practices and procedures is considered to see 

whether it results in less than an equal opportunity to 

participate in the political process, whereas under section 5 

only the effects of new practices and procedures are considered.  



  

Section 2 is, therefore, arguably more intrusive than section 5,6 

for section 5 only regulates whether or not changes may be 

implemented, whereas section 2, if a violation is found, can lead 

to the dismantling of an entire system of voting practices that 

may have been in place for many years. This is a distinction 

between the two sections, but our question must be whether the 

difference means that section 5 applies to judicial elections, 

but section 2 does not. There appears to be no relevant reason 

why judicial elections, the representative character of appellate 

judges aside, are so different from legislative or executive 

elections that both sections should apply to one and not the 

other. 

D 

It is difficult to conclude that the Voting Rights Act did 

not cover judicial elections before the 1982 amendments. It is 

equally plain that there is little evidence that any retrenchment 

was intended by the 1982 amendments. In sum, defendants are left 

  

6 Some see Section 5 as being the most intrusive aspect of the 

Voting Rights Act: 
This so-called "preclearance" requirement is one of the 

most extraordinary remedial provisions in an Act noted 

for its broad remedies. Even the Department of Justice 

has described it as a "substantial departure . . . from 

ordinary concepts of our federal system"; its 

encroachment on state sovereignty is significant and 

undeniable. The section must, therefore, be read and 

interpreted with care. 

United States v. Sheffield Board of Comm’rs, 435 U.S. 110, 141 

(1978) (Stevens, J., dissenting) (footnote omitted). See also 

Katzenbach, 383 U.S. at 358-62 (Black, J., dissenting). 

  

  

24 

 



  

with the unconvincing argument that the fundamental changes of 

the 1982 amendments were fundamental in ways unique to judicial 

elections. The argument has force, but only if the application 

of the Act were to require single-member districting for single 

judge seats. Otherwise, although considerably intrusive in 

general, section 2(b) is no more specifically intrusive in 

judicial elections than in any others. We hold that Section 2 of 

the Voting Rights Act applies to judicial elections. 

1X 

We turn now to the contention that we must not: 

take the concept of a class’s 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 is no such thing as a "share" of a single- 

member office. 

Butts v. City of New York, 779 F.2d 141, 148 (2d Cir. 1985), 
  

cert. denied, 478 U.S. 1021 (1986). District courts in Texas 
  

consist of individual judges who decide their cases alone. They 

do not exercise their power together as parts of a multi-member 

body, and there can be no share of the authority vested in each 

judge. 

A 

The district courts are the primary trial courts in Texas. 

See Tex. Const. Art. 5, Section 8 (1876, amended 1985). Indeed, 

the constitution of the Republic of Texas provided: : 

The Republic of Texas shall be divided into convenient 

judicial districts, not less than three, nor more than 

eight. There shall be appointed for each district a 

25 

 



  

judge, who shall reside in the same, and hold the 

courts at such times and places as Congress may by law 

direct. 

Guittard, Court Reform, Texas Style, 21 Sw. L.J. 451, 456 (1967). 
  

The first state constitution, adopted in 1845, contained 

essentially the same provision in article IV, section 6. This 

provision was amended in 1850 to allow for the election of 

district judges by the people, but the subsequent constitution of 

1861 provided that district judges were to be appointed. Tex. 

Const. art. V, § 7, interpretive commentary (1876, amended 1985). 

Texas constitutions adopted since 1861, including the current 

constitution, which was adopted in 1876, have provided for 

elected district judges. 

All the constitutions have provided that the district courts 

are to be held by district judges chosen from defined districts, 

following the pattern of the Constitution of the Republic of 

Texas. Although in the Constitution of the Republic of Texas the 

number of district courts was limited to not more than eight, 

subsequent constitutions have left the number of courts to the 

legislature. All the Texas constitutions, including the current 

one, before it was amended in 1985, suggested that each district 

would be served by only one judge. See TeX. Const. art V, § 7 

(1986, amended 1985) ("[flor each district there shall be elected 

i imie @ Judge: +4 Ms A one judge per district system, 

however, presupposes districts of substantially equal population. 

Guittard, supra at 456. Thus, with the growth of the population 

26 

 



  

in certain counties it became necessary for the legislature to 

make adjustments. 

The system challenged in this case was set up according to 

this pattern. See Tex. Gov’t Code §§ 24.001-.954 (Vernon 1988 & 

Supp. 1990). With the exception of the 72nd district, each 

challenged judicial district in the nine targeted counties is 

coextensive with one county. The 72nd district is composed of 

two counties. Id. § 24.174 (Vernon 1988). since 1907 district 

judges have been elected county-wide. In 1985, however, a 

section was added to article V of the 1876 Constitution which 

specifically allows the creation of judicial districts smaller 

than a county. Tex. Const. art. V, § 7a(i) (1985). A majority 

of the voters in the county must authorize the division. 1d. 

This power has yet to be exercised.’ 

The district courts in multi-district counties were unified 

for certain administrative purposes in 1939 through the passage 

of the Special Practice Act, which is now, for the most part, 

found in Tex. R. Civ. P. 330(e)-(i). Guittard, supra at 457-58. 

The relevant parts of the Special Practice Act essentially 

  

7 The only time a district has been drawn smaller than a 

county was when the legislature divided both Dallas and Bexar 

counties into two districts, each district having jurisdiction 

throughout the whole county. The judge for each district was 

elected by the voters in the district in accordance with the 

constitution’s command, Tex. Const. art. V, § 7 (1876, amended 

1985), as opposed to being elected by county-wide vote as now. 

Thus, there is some precedent for dividing counties into 

geographically distinct districts. The statutes dividing Bexar 

and Dallas Counties into two districts were repealed in 1895 and 

1907, respectively. 

27 

 



provide that cases can be freely transferred between judges and 

that any judge can work on any part of a case including 

preliminary matters. Also, "[a]ny judgment rendered or action 

taken by any judge in any of said courts in the county shall be 

valid and binding." Tex. R. Civ. P. 330(h). 

The Administrative Judicial Act, originally passed in 1927 

and subsequently amended on several occasions, divides Texas into 

nine administrative regions, each with a presiding judge 

appointed by the governor with the advice and consent of the 

senate. See Tex. Gov’t Code §§ 74.005, .042 (Vernon 1988). The 

"presiding administrative judge is the key administrative officer 

in the Texas judicial system." Guittard, supra at 459.8 He is 

  

The presiding administrative judge’s duties are to: 

(1) ensure the promulgation of regional rules of 

administration within policies and guidelines set by 

the supreme court; 

(2) advise local judges on case flow management and 

auxiliary court services; 

(3) recommend to the chief justice of the supreme 

court any needs for judicial assignments from outside 

the region; 

(4) recommend to the supreme court any changes in the 

organization, jurisdiction, operation, or procedures of 

the region necessary or desirable for the improvement 

of the administration of justice; 

(5) act for a local administrative judge when the 

local administrative judge does not perform the duties 

required by Subchapter D; 

(6) implement and execute any rules adopted by the 

supreme court under this chapter;  



empowered to assign judges as necessary within his region. Id. 

§§ 74.052-056 (Vernon 1988 & Supp. 1990); see also Judicial 

Administration Rule 8 (Vernon 1988 & Supp. 1990). He is required 

to call two meetings of all judges in his administrative region 

each year and any other meetings as necessary. Tex. Gov’t Code 

§ 74.048 (a) (Vernon 1988); Judicial Administration Rule 4 (Vernon 

1988 & Supp. 1990). This conference is for "consultation and 

counseling concerning the state of the civil and criminal 

business" and is empowered to promulgate administrative rules, 

rules governing the order of trials and county-wide 

recordkeeping, and other rules deemed necessary. Tex. Gov’t Code 

§ 74.048 (b)-(c) (Vernon 1988). 

The local administrative judge is elected by a majority vote 

of all the judges in the county, including both district and 

statutory judges. .Id. § 74.091 (Vernon 1988 & Supp. 1990). His 

duties on the county level are similar to those of the presiding 

administrative judge. See id. § 74.092. The local 
  

administrative judge has the power to assign judges within his 
  

(7) provide the supreme court or the office of court 

administration statistical information requested; and 

(8) perform the duties assigned by the chief justice 

of the supreme court. 

Tex. Gov't Code § 74.046 (Vernon 1988) (footnote omitted); see 

also Judicial Administration Rule 5 (Vernon 1988). The presiding 

administrative judge is authorized to perform the acts necessary 

to "improve the management of the court system and the 

administration of justice." Tex. Gov’t Code § 74.047 (Vernon 

1988).  



county. Id. § 74.094. Under the leadership of the local 

administrative judge, the district and statutory judges in each 

county are directed to adopt local rules of administration. Id. 

§ 74.093. These rules must provide for, among other things, the 

massignment, docketing, transfer, and hearing of all cases" 

"fair and equitable division of caseloads." Id. § 74.094 (Db); 

also Judicial Administration Rule 9(b) (Vernon 1988 & Supp. 

1990). All local rules, of course, must be consistent with state 

and regional rules. Judicial Administration Rule 10 (Vernon 

1988). In this regard, Chief Justice Phillips testified that the 

only collegial decision-making by district judges in a county is 

in handling administrative matters. 

B 

In Butts v. City of New York, 779 F.2d 141 (2d Cir. 1985), 
  

cert. denied, 478 U.S. 1021 (1986), the plaintiffs contested a 
  

primary run-off law, contending that it violated the Equal 

Protection Clause and the Voting Rights Act. The Second Circuit 

found that the law was not enacted with a discriminatory purpose, 

and that it also did not have the effect of denying an equal 

opportunity to participate in the political process. The court 

noted that one of the ways that a class of citizens may have less 

opportunity to participate is when there are electoral 

arrangements that diminish a class’s opportunity to elect 

representatives in proportion to its numbers. The court 

distinguished, however, between multi-member bodies, where at-  



  

large elections may produce this result, and elections for 

single-member offices, stating: 

There can be no equal opportunity for 

representation within an office filled by one person. 

Whereas, in an election to a multi-member body, a 

minority class has an opportunity to secure a share of 

representation equal to that of other classes by 

electing its members from districts in which it is 

dominant, there is no such thing as a "share" of a 

single-member office. 

Butts, 779 F.2d at 148. The court found that the Supreme Court 

had made this distinction implicit in City of Port Arthur v. 
  

United States, 459 U.S. 159 (1982), where the Supreme Court 
  

struck down a run-off requirement for seats on a multi-member 

city council, but did not mention the run-off requirement for 

mayor. The Eleventh Circuit followed Butts in United States v. 

  

  

Dallas County, Ala., 850 F.2d 1433 (llth Cir. 1988), in holding 

that "the at-large election of the probate judge is permissible 

under the Voting Rights Act with respect to the judicial aspects 

of that office." Id. at 1432 n.l. 

The positions at issue in Butts and Dallas County, and the 

position not considered in Port Arthur, were what can be viewed 

  

as traditional single member offices, i.e. mayor, city council 

president, single probate judge, or comptroller. There was only 

one of each office in a given geographical area, and no problem 

with overlapping jurisdictions. Here, there are many judges with 

overlapping jurisdictions. Nonetheless, each acts alone in 

wielding judicial power, and oiide cases are assigned there is no 

overlap in decision-making. 

31 

 



The special courts created within some judicial districts 

bolster the status of district courts as single-member offices, 

for not all of the judges handle the same type of work. Some are 

courts of general jurisdiction, but some judges are elected 

specifically to handle juvenile cases, Or family law cases, or 

criminal cases. To that extent they are separate offices, just 

as county treasurer and sheriff are different positions. On the 

other hand, many of the judges handle the same type of cases and 

the cases are assigned to any of these judges within a given 

geographical jurisdiction. There are many of them within a 

geographical area, and the plaintiffs would find this 

dispositive. A United States district court in Alabama has held 

that Alabama district courts similar to the Texas courts are 

multi-member positions.9 Southern Christian Leadership Conf. Vv. 
  

Siegelman, 7i% P.Supp. 511 (M.D. Ala.. 1989). The court 

considered Dallas County and Butts, but concluded that: 

Although neither court expressly defined the term 

"single-member office," it is clear to this court that 

the phrase, as used in those cases, refers to a 

situation where under no circumstances will there ever 

be more than one such position in a particular 

geographic voting area. 

Siegelman, 714 F.Supp. at 518. The court did not accept the 

defendants’ argument that 
  

4 In Haith v. Martin, 618 F.Supp. 410 (D.C.N.C. 1985), aff’d 

mem., 106 S.Ct 3268 (1986), the district court referred to the 

superior court judges in North Carolina, also trial judges, as 

"designated seats in multi-member districts." Id. at 414. The 

issue there was not a violation of section 2, however, but 

whether section 5 of the Act applied to such judicial elections, 

requiring preclearance of changes.  



  

the hallmark of a single member office, as [the Butts 

and Dillard] courts use the term, is not the fact that 

the office is traditionally held by only one individual 

but, more importantly, the fact that the full authority 

of that office is exercised exclusively by one 

individual. 

Td. The court found that the coincidence of exclusive authority 

and exclusivity to a geographical area did not compel the view 

that exclusive authority meant single-member position. Id. The 

district court in Clark v. Edwards, 725 F.Supp. 285 (M.D. La. 

  

1988), also held that the at-large system of electing trial 

judges in Louisiana impermissibly diluted black voting strength, 

assuming that districts with more than one judicial position were 

multi-member districts. We disagree with this view of multi- 

member versus single-member office, and agree with the argument 

made in Siegelman, that "the hallmark of a single member office . 

. . [is] the fact that the full authority of that office is 

exercised exclusively by one individual." 714 F. Supp. at 518. 

The Eleventh Circuit grappled with determining whether a 

county commission chairperson held a single-member position in 

Dillard v. Crenshaw County, Ala., 831 F.2d 246 (11th Cir. 1987), 
  

and looked to the functions performed by the official to make its 

decision. The chairperson would preside over commission 

meetings, but would have no vote except in the case of a tie, and 

his major function would be as county administrator. The County 

argued that this position was a single-member office that should 

be elected at large, and was not just another commissioner that 

+533 

 



  

would have to be elected from a single-member district like the 

other 5 commissioners. The Eleventh Circuit noted that: 

As administrator, the chairperson is likened to 

sheriffs, probate judges, and tax collectors. For 

these positions, at-large, non-proportional elections 

are inherent to their nature as single-person officers 

elected by direct vote. [Butts] such single offices 

are most commonly limited to non-legislative 

functionaries. To the extent that the proposed chair 

position is not purely executive or judicial, Calhoun 

County further cites the examples of lieutenant 

governors and vice presidents. These, too, are single- 

office positions, and although the offices are 

executive, they include the authority to preside over 

legislative bodies and break tie votes. 

Dillard, 831 F.2d at 25). These comments indicate that the 

Eleventh Circuit would find trial judges to be single member 

positions.10 The court went on to find that the commission 

chairperson did not hold a single-member position because the 

position combined legislative and executive responsibilities. 

The nature of the position made "significant influence of the 

chairperson over legislative decision -- even without a vote =-- 

  

10 carrollton Branch of NAACP v. Stallings, 829 F.2d 1547 (11th 

cir. 1987), cert. denied sub nom. Duncan V. Carrollton, 485 U.S. 

936 (1988), is not to the contrary. The court there faced a 

single commissioner county government. It found that whether the 

change from a multi-member to a single commissioner in 1951 was 

the product of an illicit racial legislative purpose presented a 

fact question for trial. There is no finding here that the 

methods of electing judges in Texas were adopted or maintained 

for a racist purpose. The impermissible purpose, if established, 

constituted the violation of § 2. The plaintiffs have a right 

under the section to have such acts voided. That the remedy for 

the intentional discrimination might be to create a multi-member 

board to replace the single official does not compel a conclusion 

that the court believed the plaintiffs had a right to a "share" 

of the single position in the absence of the impermissible 

intent. : 

  

  

34 

 



  

inherent to the practice of the commission." Id. at 252. The 

district judges do not share in that type of decision making. 

There is a conceptual problem with viewing district judges 

as members of a multi-member body. Before any suits are filed, 

before any cases are assigned, there is a group of judges with 

concurrent jurisdiction, and plaintiffs maintain that this group 

should have minority members, so that minorities’ views and 

concerns are considered by the judges who decide important issues 

in their lives. The problem is that once a case is assigned, it 

is decided by only one judge. The other judges have absolutely 

no say over the disposition of that case, and no influence over 

the deciding judge. One commentator has described the Texas 

system as a "one-judge, one court organization at the trial 

level, with rigid jurisdictional 1lines and with each judge 

largely independent of any supervisory control, except by way of 

appellate review." Guittard, Court Reform Texas Style, 21 Sw. 
  

L.J. at 455. 

These judges all hear and decide their own docket of cases, 

and their character as single-office holders instead of members 

of a multi-member body is emphasized by the problems inherent in 

attempting to create a remedy for lack of minority 

representation. For instance, the remedy in this case seems to 

lessen minority influence instead of increasing it, surely not 

what Congress intended when it enacted the Voting Rights Act or 

its amendments. The current system of electing district judges 

35 

 



  

permits voters to vote for each and every judicial position 

within a given district, generally a county. Minority voters 

therefore have some influence on the election of each judge. 

Under the district court’s order, each voter would have the 

opportunity to vote for only one judge in each district, the 

judge whose position was assigned to the subdivision. At the 

same time, a minority litigant will be assigned at random to 

appear before any district judge in the county. Under the 

district court’s orders it is much more likely than not that a 

minority litigant will be assigned to appear before a judge who 

is not elected from a voting district with greater than 50% 

minority population. Instead, the great majority of district 

judges will be elected from new voting subdistricts with 

negligible minority populations and, consequently, negligible 

minority political influence on the outcome of those elections. 

Under the new order requiring election of judges from 

subdistricts, 9 of the 59 judicial positions in Harris county 

would be elected from minority dominated subdivisions. Minority 

voters would have very little influence over the election of the 

other 50 judges, for the minority population is concentrated in 

those 9 subdivisions. When minority members are litigants, 

however, they would not necessarily appear before one of the 

judges elected from a minority dominated subdivision. Instead, a 

minority member would have an 84.75% chance of appearing before a 

judge who has no direct political interest in being responsive to 

36 

 



  

minority concerns.ll The minority member would have a 98.3% 

chance of appearing before a judge in whose election he had not 

been able to vote. This is not like the situation in Chisom, 

where the judges were all part of one body, and every case that 

went to the Louisiana Supreme Court was heard by all of the 

judges, so every individual litigant from the state of Louisiana 

was assured that a judge for whom he had an opportunity to vote 

would hear his case. 

Indisputably, district judges in Texas share administrative 

tasks with other district judges in the same county. Equally 

indisputably, however, the district judge in Texas does his 

judging alone. Judicial decisions at the trial court level are 

not the product of a collegial process. Whether section 2(b) of 

the Voting Rights Act reaches such officials can be turned on 

either of two approaches. one can view the single official 

doctrine as being no more than a statement of the mechanical 

impossibility of gaining greater representation for minorities. 

This approach is simply a resignation to the reality that if 

there is only one official, there can only be an at-large 

election. A second view is that the single official exception 

expresses far more. This view recognizes that where functions 

are singly exercised, providing single-member districts is no 

  

11 Moreover, cases without minority parties, but nonetheless 

concerning issues important to minority groups, would have an 

84.75% chance of being assigned to a judge with no accountability 

to minorities living in the county. 

37 

 



more than proportional representation in its most superficial 

form. 

Some district courts have proceeded with the first view, 

concluding that the single official doctrine is inapplicable 

where more than one official was elected at-large by the same 

electorate. It is plain that this entire suit rests upon the 

premise that the single official exception reflects no more than 

the reality that there is nothing to divide unless there is more 

than one judge in a single county. It is no accident that this 

suit attacks only the nine counties with multiple district judges 

and minority populations. But, the right secured to minorities 

under section 2(b) of the Voting Rights Act to not have their 

vote diluted is expressed in the assertion that their interests 

are to be represented in governmental decisions. Where judges 

make their decisions alone, electing judges from single member 

districts only ensures that a small number of governmental 

decisions will be influenced by minority interests, while 

minority interests will not be represented at all in the majority 

of judicial decisions. 

In embracing the single official concept, we express the 

judgment that the state’s powerful interest in its structural 

arrangement of individual trial judges outweighs the potential 

amelioration of any dilution of minority interests achievable by 

districting. This is particularly true here, where, as we have 

explained, the subdistricting remedy is at best problematic, and  



is likely perverse. The state’s interests include avoiding the 

fact and appearance of biased decisionmaking, preserving the core 

attribute of the trial 3judge--unshared and non-delegable 

judgment. It does not follow that other rules attending the 

election of single officials, such as majority vote requirements, 

anti single-shot voting provisions, or numbered posts, may not be 

adjusted. 

After careful consideration we conclude that Chisom was 

correctly decided, and Section 2 of the Voting Rights Act applies 

to judicial elections. There cannot be a violation of Section 

2 (b), however, through at-large elections of the trial judges who 

sit on the Texas district courts. While elected judges are 

representatives in that they are accountable to a constituency of 

electors, the full authority of a trial Jjudge’s office is 

exercised exclusively by one individual, and there can be no 

share of such a single-member office. Consequently, the county- 

wide election of district court judges does not violate the 

Voting Rights Act. 

REVERSED. 

 



  

Johnson, Circuit Judge, dissenting. 

The majority’s opinion essentially sets forth two premises. 

Initially, the majority concedes that it is bound by this 

Court’s earlier decision in Chisom v. Edwards, 839 F.2d 1056 (5th 

cir.), cert. denied sub nom. Roemer v. Chisom, 109 S. Ct. 390 
  

(1988). Chisom, which examined the application of Section 2 of 

the Voting Rights Act in the context of a challenge to 

Louisiana’s system of electing state supreme court justices, ?! 

held that Section 2 applies with equal force to judicial 

elections. The panel in Chisom based this conclusion upon an 

examination of both the plain language and the legislative 

history of the Act. I applaud the reaffirmation of what I 

consider to be an inarguable and fundamental proposition. 

I am, however, constrained to part company with the 

remainder of the majority opinion. The majority attempts to 

eviscerate the import of Chisom by whittling away at Chisom’s 

language and reasoning so that the case is left standing for the 

tenuous proposition that Congress intended in Section 2 to 

prohibit the discriminatory dilution of minority voting strength 

when minorities are attempting to elect appellate court judges, 

but that Section 2(b) can never reach the at-large elections of 

trial judges -- regardless of whether one or one hundred judges 

are elected from the same district -- because the latter 

officials decide controversies independently. Succinctly, the 

majority, although "persuaded that Chisom’s decision regarding 

the election of appellate judges was correct," has concluded that 

l 
  

. Louisiana Supreme Court Justices sit as members of a collegial 

body. 

 



  

"the at-large election of trial judges does not violate Section 

2(b) of the Voting Rights Act." Majority Opinion at 4. There is 

no support in the words of the Act itself, in Chisom, in the 

legislative history of Section 2, nor in logic for the majority’s 

embrace of this result-oriented distinction. For the reasons 

stated herein, this dissent is respectfully submitted. 

I. 

This Court in Chisom made clear that the express language of 

Section 2 extends to any state election in which a candidate runs 

2 
for public office, including judicial elections. Texas district 

court judges are elected by popular vote, and, therefore, the 
  

2 The United States Attorneys General have consistently 

interpreted the Voting Rights Act broadly, and, more recently, 

the Attorney General has interpreted Section 2 to reach elected 

judges. At the time the original Voting Rights Act was passed in 

1965, the Attorney General stated that "eve election in which 

registered voters are permitted to vote would be covered." 

Voting Rights: Hearing Before Subcommittee No. 5 of the House 

Judiciary Committee, 89th Cong. 1st Sess. 21 (1965) (emphasis 

added) . In both Chisom and in the instant case, the Attorney 

General filed an amicus brief in which he maintains that the 

scope of Section 2 reaches all elections, including judicial 

elections. 
Additionally, in a very recent Section 5 preclearance review of 

the majority vote, designated post, at-large method of electing 

judges in Georgia, the Assistant Attorney General has denied 

preclearance, concluding, in part: 

our review of a broad range of evidence in this regard indicates 

that polarized voting generally prevails in all of the superior 

court circuits now under review and there is a consistent lack of 

minority electoral success in at-large elections. Thus, it 

appears that, in the totality of the circumstances, black voters 

in these circuits have a limited opportunity to elect their 

preferred candidates.... 

  

  

In addition, the state has not shown how its interests are 

served by circuitwide elections in many of the circuits now 

at issue where the at-large election feature is in apparent 

violation of Section 2 of the Voting Rights Act. 

Letter from Assistant Attorney General John R. Dunne to Georgia 

Attorney General Michael J. Bowers (Apr. 25, 1990). 

 



  

language of the Voting Rights Act and the reasoning of Chisom 

require that minority groups not be systematically denied the 

opportunity to elect the judicial candidates of their choice. 

Yet despite this Court’s previous determination that 

"(m]inorities may not be prevented from using section 2 in their 

efforts to combat racial discrimination in the election of state 

judges," Chisom, 839 F.2d at 1065, the majority now holds that no 

set of plaintiffs can be allowed to maintain a vote dilution 

claim under Section 2 of the Voting Rights Act if the challenged 

at-large elections target judges who do not operate on a 

"collegial-body" level.3 

3 The majority begins its erosion of Chisom by altering the 

focus of that opinion’s construction of the term 

"representative," which is found in the statutory language of 

Section 2(b). 42 U.S.C. § “1973(b). In Chisom, we defined a 

representative, for purposes of the Voting Rights Act, as anyone 

selected by popular election from a field of candidates to fill 

an office. 839 F.2d at 1063. The majority now subtly constricts 

this definition by redefining "representative" as someone who 

wreflect[s] the views of the electors," Majority Opinion at 13, 

and "who is responsive to [the peoples’] changing will." Id. at 

5. This amended construction of the statutory term incorrectly 

focuses on the role played by a judge after he or she has been 

elected, and is necessary for the majority’s "single official" 

argument, which is based on an examination of the duties and 

functions performed by a trial judge once he or she is in office. 

The express language of Section 2(b) looks only to the "political 

processes leading to nomination or election," and to whether 

minority members "have less opportunity than other members of the 

electorate to participate in the political process and to elect 

representatives of their choice." Congress intended in Section 2 

to focus on the elimination of discrimination in voting, thus the 

title of the Act, and on allowing minorities opportunities for 

electoral success. See Thornburg v. Gingles, 478 U.S. 30 (1986) ; 

Haith v. Martin, 618 F. Supp. 410, 413 (E.D.N.C. 1985), aff'd, 

477 U.S. 901 (1986) (the Act applies "to all voting without any 

limitation as to who, or what, is the object of the vote") 

(emphasis in original). As one court has emphatically noted, 

[n]Jowhere in the 239 pages of the [Senate] Report is there any 

indication whatsoever that Congress intended the Voting Rights 

Act to apply to only particular types of elections. Rather, the 

entire Report indicates ... that the 1982 amendment was intended 

  

 



The majority, characterizing Texas district court judges as 

single office holders, concludes that no violation of Section 

2(b) can be shown because "the full authority of a trial judge’s 

office is exercised exclusively by one individual, and there can 

be no share of such a single-member office." Majority Opinion at 

39. I am totally at odds with the majority’s application of the 

so-called single office holder exception. 

The majority relies primarily on the Second Circuit’s 

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

1985), which dealt with New York’s primary run-off election law. 

The contested New York law provides that if no candidate for 

mayor, city council president, or comptroller receives more than 

forty percent of the vote in a party primary, then a run-off 

between the two candidates receiving the most votes is held. The 

district court, concluding that the totality of the circumstances 

demonstrated a Section 2 violation, found for the plaintiffs. 

The Second Circuit reversed, noting that 

so long as the winner of an election for a single- 

member office is chosen directly by the votes of all 

eligible voters, it is unlikely that electoral 

arrangements for such an election can deny a class an 

equal opportunity for representation....The rule in 

elections for single-member offices has always been 
  

to effect an expansive application of the Act to state and local 

elections. 

Southern Christian Leadership Conference v. Siegelman, 714 F. 

Supp. 511 (M.D. Ala. 1989). 

The title or duties of an elected office, and what 

transpires in the office after the votes are cast and counted are 

of little consequence to the fundamental question of whether, due 

to significant white bloc voting, the votes of a cohesive 

minority group are consistently submerged and rendered 

ineffectual to elect the minority’s preferred candidate.  



  

that the candidate with the most votes wins, and 

nothing in the Act alters this basic political 

principle. 

Butts at 149. The Second Circuit also notes that 

[t]he concept of a class’s impaired opportunity 

for equal representation [cannot be]...uncritically 

transfer[ed] from the context of elections for multi- 

member bodies to that of elections for single-member 

offices....[T]here is no such thing as a "share" of a 

single-member office. 

Butts at 148. It is this language in the Butts opinion upon 

which the majority hinges its argument. 

Fach of the three elected offices at issue in Butts was one 

to which only one person was elected from the voting district. 

Concluding that it is impossible to capture a "share" of a 

single-member office, the Second Circuit held that the contested 

electoral law did not trigger a vote dilution analysis and 

therefore could not violate Section 2(b).4 The majority’s 

  

4 The Butts rule that a single-member office is not physically 

divisible has even been implicitly rejected in Carrollton Branch 

of NAACP v. Stallings, 829 F.2d 1547 (llth Cir. 1987). In 

Stallings, plaintiffs challenged the one-person form of county 

commission government in Carroll County, Georgia, because it 

diluted minority voting strength and lessened the opportunity of 

black persons in the county to participate in the electoral 

process. This one-person system had been in effect since 1953. 

The Eleventh Circuit reversed a judgment in favor of the 

defendants, holding that the district court had applied the 

incorrect legal standard (in light of Gingles) by failing to give 

the proper weight to the two most important factors in a Section 

2 vote dilution claim: (1) the extent to which minorities had 

been elected, and (2) the existence of racially polarized voting. 

id, at 1555, 
In its brief discussion of Stallings, the majority 

mischaracterizes the Eleventh Circuit’s analysis, implying that 

the reversal turned only on the presence of evidence indicating a 

discriminatory intent. In fact, the Eleventh Circuit devoted 

most of its discussion to an analysis of the "effects" test of 

Section 2 and Gingles, and to the district court’s findings as to 

whether the single-member scheme resulted in discriminatory vote 

dilution. The Eleventh Circuit reversed the district court’s 

judgment based both on its treatment of the plaintiffs’ 

 



  

decision in the instant case protracts Butts’ reasoning to 

conclude that, where there are a number of identical positions to 

be elected from one geographic area, and each office holder 

exercises autonomy over that office, if minority groups are 

unable to elect their preferred candidate, this is simply a 

consequence of the political process and not the result of vote 

dilution.> 

Despite prior interpretations of the Voting Rights Act that 

point to a congressional intent to give the Act the broadest 

possible scope in combatting racial discrimination in voting, ® 

and despite our admonition in Chisom that application of Section 

2 is not dependent on the function of the elected official 

involved, the majority expands Butts’ rule beyond its logical 

bounds to an examination of a trial court judge’s role as a sole 

7 
decisionmaker. Butts was decided in the context of an election 

  

constitutional challenge, and on its treatment of the Section 2 

challenge as well. 

5 The court in Butts noted that 

[tlhe district court appears to have implicitly assumed... that 

the Act condemns any electoral arrangement that makes it more 

difficult for a minority class to elect one of its members to 

office. That is not the standard for determining violations of 

the Act....[T]he Act is concerned with the dilution of minority 

participation and not the difficulty of minority victory. 

utts at 149. 
See, e.qg., Allen v. State Board of Education, 393 U.S. 544 

(1969) i Chisom, 839 F.2d at 1059. 

The majority’s reliance on Dillard Vv. Crenshaw County, 831 

F.2d 246 (11th Cir. 1987), is misplaced. The majority cites this 

case as an example of a court analyzing the functions performed 

by an official to determine if the position is a single-member 

office. The issue in Dillard, however, was not the threshold 

question of whether Section 2 applied to the office under 

consideration, but, rather, whether a proposed Section 2 remedy 

was adequate. 

 



  

+» 

for mayor, city council president and comptroller. In each of 

these elections, only one person would be elected to serve in 

each capacity; there would not, for example, be two comptrollers 

serving that geographic area. I cannot join in contorting the 

reasoning of Butts to a situation where several positions, albeit 

similar, are elected by and from the same voting body to serve 

the same geographic area.® 

In concluding that Texas district court judges are single 

member office holders, the majority places significant reliance 

on its determination that the "full authority of a trial judge’s 

office is exercised exclusively by one individual." Majority 

Opinion at 39. This conclusion seems contrary to the majority’s 

summation of the judicial system in Texas. For example, 

administrative matters are handled through a collegial decision- 

making process by the district judges within the county. Such 

matters include the election of a local administrative judge, the 

appointment of staff and support personnel, the adoption of local 

rules of administration, the adoption of local rules and the 

  

8 In its brief to this Court, the State notes that the 

reasoning of Butts has been extended to judicial elections. 

United States v. Dallas County Commission, 850 F.2d 1430 (llth 

Cir. 1988), cert. denied, 109 S. Ct. 1768 (1989). In Dallas 

County Comm’n, the Eleventh Circuit held that the at-large 

election of the probate judge position in question was 

permissible under the Voting Rights Act. While the cited case 

bolsters the proposition that the Voting Rights Act does apply to 

the judiciary, it does not aid the defendants in arguing that the 

reasoning of Butts should be applied to the situation in the 

instant case. Unlike the situation currently before us, in which 

there are a number of judgeships in the relevant area, the 

Eleventh Circuit was reviewing an electoral scheme in which only 

one probate judge was to be elected from the relevant geographic 

  

area. 

 



  

exercise of supervisory authority over the clerk’s office. See 

Tex. Govt. Code Ann. § 74.091 et seq. (Vernon 1988). In 

addition, the judges are charged with the responsibility of 

appointing a county auditor. Id. § 84.001 et seq. Looking to 

the county’s caseload, the authority of resolving those 

controversies is shared by all. In Harris County, for example, 

fifty-nine district judges have overlapping authority to handle 

the heavy caseload of the district. Similarly, jury selection, 

case assignment, and record retention are handled on a county- 

wide basis. Furthermore, as the majority notes, "cases can be 

freely transferred between judges and ... any judge can work on 

any part of a case including preliminary matters." Majority 

Opinion at 27. One district judge may, therefore, find his or 

her hands tied -- or greatly assisted -- by an earlier order 

imposed by another court located in the county. Tex. R. Civ. 

Pro. 330(h). In light of this overlapping authority and 

responsibility, it seems somewhat incongruous to suggest that 

district court judges do in fact exercise "full" authority over 

the office.’ 
  

9 straining to encompass Texas trial judges within the Butts 

exception the majority focuses on cases after they have been 

assigned to an individual judge, and concludes that each judge 

decides each case individually without input from other district 

judges. This factor, concludes the majority, classifies a trial 

judge as a "single-member" office holder, thus rendering a vote 

dilution claim completely inapplicable to the at-large election 

of these officials. 
The majority is not even consistent in its argument. In the 

opinion’s penultimate paragraph, for example, the majority admits 

that an "amelioration of ... dilution of minority interests" 

might be possible by redistricting. Majority Opinion at 38. The 

majority concludes, however, that this potential improvement is 

outweighed by state interests in maintaining an at-large scheme. 

The majority also suggests that other voting structures, such as 

 



  

Regardless of the ultimate conclusion on that issue, an 

analysis of the asserted independent nature of Texas district 

court judges is not, in my view, the proper recipient of this 

Court’s focus. Whether the office-holder wields his power in an 

individual or collegial manner is simply not the relevant 

inquiry. The single office-holder exception should not be 

construed so as to require an examination of whether each trial 

judge truly exercises his or her official duties independent of - 

- or in conjunction with -- the other judges. Rather, the single 

office exception is a common sense approach to the fact that an 

electoral scheme for election of only one official with unique 

responsibilities cannot be subdivided. Butts was not based on a 

"collegial decisionmaking" rationale, nor was this concept even 

discussed. The Butts exception is premised simply on the number 

of officials being elected and the impediment to subdividing a 

single position so that minority voters have the opportunity to 

elect a "share". Unlike the election for mayor or comptroller in 

Butts, the instant case is concerned with the election, within 

discrete geographic areas, of a number of officials with similar, 

and in most instances identical, functions. 

One court has already specifically addressed the problem 

with which we are faced. In Southern Christian Leadership 

  

majority vote requirements, anti-single shot voting provisions, 

or numbered posts might be challenged and adjusted. Obviously, 

voting structures such as numbered posts do not logically apply 

to a single office position. Where significant racial 

polarization of voting exists, these structures operate in 

conjunction with at-large multi-seat elections to dilute minority 

votes. 

 



  

conference Vv. Siegelman, 714 F. Supp. 511 (M.D. Ala. 1989), the 

court rejected the application of Butts to the election of 

several trial judges from a single county. 10 

In effect, the at-large boundaries [in Butts] 

coincide with the only "district" boundaries possible; 

because there is only one position to be filled, it 

becomes impossible to split up the jurisdiction any 

smaller. The concept of vote dilution is effectively 

rendered meaningless and such offices are inappropriate 

for section 2 vote dilution challenges. There is no 

such rationale, however, for not applying section 2 to 

elected positions merely because "the full authority of 

that office is exercised exclusively by one 

individual," as the defendants would have this court 

do. 

Siegelman at 519-20 (footnotes omitted). 

The approach in Siegelman is consistent with the Supreme 

Court’s analysis in Thornburg v. Gingles, 478 U.S. 30 (1986). In 

Gingles, the Supreme Court stated that a threshold inquiry in a 

claim that an at-large election system dilutes minority voting 

strength is whether there is evidence that the minority group is 

sufficiently large and geographically compact to constitute a 

majority in a single-member district. "The single-member 

district is generally the appropriate standard against which to 

measure minority group potential to elect because it is the 

smallest political unit from which representatives are elected." 

Id. at 40. n.17. Proof of.this geographically compact minority 

population essentially isolates the at-large electoral structure 

10 The siegelman court concluded, and I agree, that the 

courts in both Butts and Dallas County Comm’n implicitly utilized 

the term "single-member office" to refer "to a situation where 

under no circumstances will there ever be more than one such 

position in a particular geographic voting area." Siegelman at 

518. 

  

- 10 =- 

 



  

® » 

as the feature which has the potential to deny the minority fair 

electoral access. The maintenance of an at-large election scheme 

is not dilutive, however, where the electoral scheme in the 

relevant jurisdiction is not divisible because the office is held 

by only one person. il 

  

11 The approach set forth in this dissent is not novel. As 

the majority concedes, several courts have found Section 2 

violations in cases arising from similar factual situations. For 

example, in Clark v. Edwards, 725 F. Supp. 285 (M.D. La. 1988), 

the district court assumed that districts with more than one 

judicial position were properly characterized as multi-member 

districts. Similarly, in Haith v. Martin, the district court 

concluded that because North Carolina Superior Court judgeships 

are "designated seats in multi-member districts, ... they are 

subject to section 5 preclearance requirements." 618 F. Supp. 

410. Quoting the language of Section 2, the Haith court stated 

that "the Act applies to all voting without any limitation as to 

who, or what, is the object of the vote." Id. at 413. See also 

Martin v. Allain, 658 F. Supp. 1183 (S.D. Miss. 1987); Williams 

v. State Board of Elections, 696 F. Supp. 1563 (N.D. I11. 1988). 

The majority, noting that Haith’s focus was preclearance under 

Section 5 and not the merits of a vote dilution claim under 

Section 2, discounts this reference to the designation of trial 

judges as part of a multi-member body. 

  

While urging that Haith is irrelevant to the instant case 

because it involves Section 5 preclearance, the majority notes 

that there is no reason to distinguish between Section 5 and 

Section 2 with "respect to their applicability to judicial 

elections." Majority Opinion at 22. The majority’s conclusion 

is based on the realization that 

[t]o hold otherwise would lead to the incongruous result that if 

a jurisdiction had a discriminatory voting procedure in place 

with respect to judicial elections it could not be challenged, 

put if the state sought to introduce that very procedure as a 

change from existing procedures, it would be subject to Section 5 

preclearance and could not be implemented. 

Id. Yet even as the majority acknowledges the interlocking 

nature of Section 2 and Section 5, it exempts from its reasoning 

those judges who do not act collegially. The majority is 

attempting to maneuver a judicial tightrope; I find the 

majority’s approach strained, at best, and at worst internally 

inconsistent. I am unable to concur in this reasoning. 

- 11 - 

 



  

@ ® 

Applying this reasoning, I would adopt the Siegelman 

court’s definition of single member office: 

The true hallmark of a single-member office is 

that only one position is being filled for an entire 

geographic area, and the jurisdiction can therefore be 

divided no smaller. While mayors and sheriffs do 

indeed "hold single-person offices in Alabama," they do 

so because there is only one such position for the 

entire geographic area in which they run for election. 

... [Wlhat is important is how many positions there are 

in the voting jurisdiction. It is irrelevant, in 

ascertaining the potential existence of vote-dilution, 

that these officials happen to exercise the full 

authority of their offices alone. 

siegelman, 714 F. Supp. at 518 n.19 (emphasis original). 

The Voting Rights Act is violated where the challenged 

system has the effect of discouraging equal participation in the 

electoral process and of lessening the chance of minority voters 

to elect representatives of their choice. Where several 

officials, performing the same job, are elected at-large from one 

geographic area, the potential for vote dilution is no less 

tangible simply because each official acts independently of the 

others. As the court in Siegelman stated, I can “discern no 

rational reason why the concept of vote dilution cannot, or 

should not, apply to elected members of the judiciary simply 

because judges exercise their authority in solitude."12 Id.at 

520. 
  

12 The majority asserts that the essential right secured to 

minorities under Section 2 is the right to have "their 

interests...represented in governmental decisions." Majority 

Opinion at 38. The majority states that the goal of electing 

minority judges is "so that minorities’ views and concerns are 

considered by the judges who decide important issues in their 

lives." Id. at 35. 

By characterizing the goal of Section 2 in this fashion, the 

majority opinion lays the foundation for its argument that 

-12 = 

 



  

  

subdistricting multi-seat counties would create a perverse result 

by lessening "minority influence" over the decisions reached in 

lawsuits. The majority is concerned that under a system such as 

that set out in the district court’s interim plan, there is a 

high probability that a minority voter appearing in court will 

have his or her case heard by a judge which he or she had no hand 

in electing. Majority Opinion at 34-37. The majority notes that 

under the district court’s interim plan, for example, a minority 

litigant has "a 98.3% chance of appearing before a judge in whose 

election he had not been able to vote." Id. at 36. These 

statistics are meaningful, however, only if one accepts the 

unstated premise that Texas district judges decide cases 

according to the way their constituency would like them to 

decide, rather than according to what the law requires. If this 

were the case, then it should be noted that even under the 

existing system it is highly probable that a case will be heard 

outside the county in which a voter lives. In such a case, at 

least one -- and probably both =-- of the parties will be 

appearing before a judge who was elected by a population which 

does not include that party. 

The majority’s discussion approaches the problem from the 

wrong direction; quite simply, the focus should be on the rights 

of the voter, not the litigant. The essential inquiry is whether 

the minority vote is being diluted -- whether minority citizens 

have an equal chance of electing candidates of their choice. As 

the majority acknowledges, the standard is whether the political 

processes are equally open to participation. The focus of both 

the 1982 legislative history of the Act and Gingles is on 

electoral opportunities and success. 

It is true that one of the Senate Report factors that may be 

probative in a vote dilution case to establish a Section 2(b) 

violation is "whether there is a significant lack of 

responsiveness on the part of elected officials to the 

particularized needs of the members of the minority group." SS. 

Rep. at 29. However, the Senate Report emphasizes that 

"[u]nresponsiveness is not an essential part of plaintiff’s 

case." Id. at n.116. In fact, in Clark v. Edwards, 725 F. Supp. 

285 (M.D. La. 1988), a case involving a vote dilution challenge 

to the use of multi-member districts and at-large voting to elect 

Louisiana district court, family court, and court of appeals 

judges, the district court remarked that the element of 

responsive representation simply is not a consideration in a 

judicial election case: 

The Senate Report...also suggested that lack of 

responsiveness on the part of elected officials to the 

particularized need of the members of the minority group 

might be a factor in some cases. ... That obviously is not a 

factor in this case since the only response which a member 

of the judiciary may make is to rule on all matters fairly 

- 13 = 

 



  

To focus primarily on the function of the official when 

analyzing a Voting Rights Act claim is to ignore the essential 

inquiry of the Act: has the fundamental right of minorities to 

vote for candidates of their choice been violated by the dilution 

of minority voting strength? A fair reading of Section 2 gives 

no indication that a reviewing court should concentrate on 

whether the election is for a mayor, an alderman, a legislator, a 

judge or any other kind of elected official.l3 Rather, the 
  

and impartially, without favoring or being prejudiced 

against any group. 

ad. at 301. 

The right of minorities to an equal opportunity to 

elect the candidates of their choice, presumably minority 

candidates, encompasses more far-reaching effects than the 

ability to take part in the decisionmaking processes of self- 

government. Despite the progress achieved under federal and 

state civil rights statutes, minorities in this country are not 

yet free of the lingering legacy of racial discrimination in 

areas such as employment and education. Black and Hispanic 

judges serve as role models for other minority group members, who 

may not have envisioned a legal or judicial career as any sort of 

a real possibility in the past. In addition, minority electoral 

victories encourage other minority members to participate in the 

political process by voting and by running for office. 

Persistent minority defeat, on the other hand, leads to voter 

apathy and a feeling of exclusion from the opportunity to join in 

the process of self-government. 

13 Section 2, as amended in 1982, now provides: 

(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, or in contravention 

of the guarantees set forth in section 1973b(f) (2) of this title, 

as provided in subsection (b) of this section. 

(b) A violation of subsection (a) 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 

- 14 =~ 

 



  

entire focus is on the minority voter and whether that voter has 

been allowed the opportunity to participate in the democratic 

process which has been designed to shape and mold our nation. As 

this Court stressed in Chisom, 

[n]owhere in the language of Section 2 nor in the 

legislative history does Congress condition the 

applicability of Section 2 on the function performed by 

an elected official. ... Once a post is open to the 

electorate, and if it is shown that the context of that 

election creates a discriminatory but corrigible 

election practice, it must be open in a way that allows 

racial groups to participate equally. 

chisom at 1060 (citing Dillard, 831 F.2d 246). 

The instant case reveals an electoral scheme which is 

discriminatory but corrigible," through the use of subdistricts. 

Each county elects three to fifty-nine district court judges. In 

each county, all have the same authority and exercise the same 

responsibility. With the exception of specialty courts, all 

judgeships are essentially fungible; within each specialty, the 

judgeships are also clearly interchangeable. Section 2 requires 

that once correctable vote dilution has been established, it must 

be eradicated by the implementation of a plan which will 

"completely remedy" 14 the violation by "fully provid[ing an] 

equal opportunity for minority citizens to participate and to 
  

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.8.C. § 1973. 

14 pj11ard, 831 F.2d at 252. 

- 15 = 

 



elect candidates of their choice." Senate Report Accompanying 

1982 Amendments to Section 2, at 31. 

II. 

In Gingles, the Supreme Court reaffirmed the totality of the 

circumstances approach to examining a vote dilution claim. This 

Court has set out guidelines for evaluating the totality of the 

circumstances in such a claim. In Zimmer v. McKeithen, 485 F.2d 

1297 (5th Cir. 1973) (en banc), aff’d sub nom. East Carroll 

Parish School Board v. Marshall, 424 U.S. 636 (1976) (per 

curiam), this Court set forth a non-exclusive list of factors to 

be examined when applying the totality of the circumstances test. 

The factors, derived from the Senate Judiciary Committee Report 

accompanying the 1982 amendments to the Voting Rights Act, 

include (1) the history of discrimination in the state; (2) the 

extent to which voting is polarized by race; (3) the existence of 

practices or procedures which enhance the opportunity for 

discrimination; (4) whether minority groups have been denied 

access to a candidate slating process; (5) the existence and 

extent of any socio-political vestiges of discrimination; (6) 

whether political races are characterized by overt or covert 

racial appeals; and (7) the extent to which minority groups have 

been elected in the jurisdiction. In addition, the legislative 

history of the Act instructs that an inquiry into the 

responsiveness of the elected officials to minority needs and 

whether the state’s asserted reasons for maintaining the existing 

system are tenuous may provide additional insight.  



  

The Supreme Court in Gingles examined the totality of the 

circumstances to evaluate the North Carolina electoral scheme. 

In doing so, the Court noted that "[t]hese factors were derived 

from the analytical framework of White v. Regester ... as refined 

and developed by the lower courts, in particular by the Fifth 

Circuit in Zimmer....” Gingles at 36 n.4 (citations omitted). 

The Supreme Court went further than the mere application of the 

totality test, however, and set forth a three-part foundation for 

proving a Section 2 vote dilution claim. The minority group must 

demonstrate first that it is sufficiently large and 

geographically compact to constitute a majority in a single- 

member district; second, that the minority is politically 

cohesive; and third, that the majority votes sufficiently as a 

bloc to usually defeat the minority’s preferred candidate. 

Gingles at 50-51. Unless these threshold factors are 

established, "the use of multimember districts generally will not 

impede the ability of minority voters to elect representatives of 

their choice." Id. at 48. Once the plaintiffs have satisfied 

the threshold requirements, the district court proceeds to the 

totality of the circumstances inquiry. 

The majority’s holding that there cannot be a violation of 

Section 2(b) in the instant case extinguished the need to address 

the merits of the case.l® However, without addressing the 
  

15 In holding that the current at-large scheme for electing 

Texas district court judges violates Section 2, the district 

court made various factual findings regarding the Gingles 

threshold factors as well as the Senate Report, or Zimmer, 

factors. It is noted that the majority never reaches the 

district court’s treatment of the vote dilution factors, however, 

based on its per se exclusion of at-large elections for trial 

- 17 = 

 



  

ps a 

existence, vel non, of the threshold Gingles factors, the 

majority indicates it would nonetheless conclude that no Section 

5 violation has been established because "the state’s powerful 

interest in its structural arrangement of individual trial judges 

outweighs the potential amelioration of any dilution of minority 

interests achievable by districting." Majority Opinion at 38. A 

reading of the majority opinion provides no insight into whether 

the majority would consider the state’s interest to be a 

threshold factor in parity with the Gingles factors, or whether 

the state’s interest is more properly considered later during an 

overall examination of the totality of the circumstances. For 

the reasons stated below, I consider an examination of the 

State’s interest to be a factor which should be weighed by a 

court applying the totality test only after existence of the 

threshold Gingles factors has been determined. I am further 

convinced that, whether treated as a threshold factor or in the 

context of the totality test, the state in the instant case has 

not articulated so compelling an interest in retaining the 

existing electoral scheme that the dilution of minority votes 

  

should go unremedied.1® 

A. 

judges from the scope of Section 2(b). For purposes of this 

dissent, I need not now decide if the district court correctly 

determined these factual issues. I do note, however, that the 

trial record is replete with evidence of an inescapable reality: 

minorities in the challenged Texas districts are seldom ever able 

to elect minority candidates to any of the at-large district 

court judge positions available in the districts. 

16 1 express no opinion as to whether or not such a 

situation may ever be demonstrated. 

- 18 = 

 



  

. * 
The defendants argue that elections for trial judges present 

strong state interests for retaining an at-large election system. 

Even if this contention has merit, the State’s asserted interests 

are relevant only to the inquiries of whether plaintiffs have 

proven a Section 2 violation under the totality of the 

circumstances and, if so, what remedy would be most appropriate 

to alleviate the dilution of minority voting strength, while 

intruding on state interests only to the extent necessary to 

accomplish the task. 

By its own terms, Section 2 requires an assessment of the 

"totality of the circumstances" presented in the record. Courts 

applying the totality test are guided by Gingles'’ articulation of 

the relevant factors. When assessing the point at which a 

state’s articulated interest in retaining the current at-large 

scheme should be considered, the Supreme Court’s acknowledgment 

that the Senate factors are secondary considerations, behind the 

three-part Gingles test, is of particular relevance. 

Specifically, the Supreme Court noted that, while the Senate 

Report factors "may be relevant to a claim of vote dilution 

through submergence in multimember districts, unless there is a 

conjunction of the [three threshold factors], the use of 

multimember districts generally will not impede the ability of 

minority voters to elect representatives of their choice." 

Gingles at 48. From this language, it is apparent that the 

Supreme Court has articulated a legal test for vote dilution 

claims which anticipates a threshold showing of only geographical 

compactness, political cohesion, and white bloc voting. 

- 19 = 

 



  

J 

The conclusion that the state’s interest is properly 

considered in the second phase of the Gingles analysis is 

bolstered by the Senate Report’s indication that the list "of 

typical factors is neither comprehensive nor exclusive. While 

the enumerated factors will often be pertinent to certain types 

of § 2 violations, particularly to vote dilution claims, other 

factors may also be relevant and may be considered." Gingles at 

45 (footnote omitted). The Report stresses that no particular 

factors need be proved and neither the existence nor the non- 

existence of a majority of factors dictate the outcome. Rather, 

the determination of whether the political processes are equally 

open depends on an evaluation of the relevant political process. 

It is during this examination of the jurisdiction’s political 

process that a state’s interest in retaining the existing system 

is particularly relevant.l’ 

  

17 when weighing a state’s claim that it has a compelling 

interest in retaining the existing at-large system, courts should 

keep in mind the common sense notion that the role of judges 

differs from that of legislative and executive officials. Since 

it is not the role of judges to "represent" their constituents, 

an examination of the "responsiveness" of the elected official to 

minority concerns is clearly irrelevant. The Senate Report has 

specifically indicated that unresponsiveness is not an essential 

part of a plaintiff’s claim. S. Rep. at 29, n. 119. 

Alternatively, a state may be able to demonstrate that the 

continued use of an at-large district insures a fair and 

impartial judiciary because judges are elected from all of the 

people. The state may conclude that judges should be discouraged 

from thinking of themselves as representing the interests of a 

particular jurisdiction. While the interests of fairness and 

impartiality exist at all levels of the state judicial system, 

their weight lessens as they are applied to lower courts. Once a 

state decides to elect judges from areas smaller than the entire 

state, it has made a decision to permit the appearance that lower 

court judges are accountable to only part of the electorate. 

Consequently, closer scrutiny may be given to the state’s choice 

of an electoral scheme. 

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FY Py 

Congress most certainly did not intend to frustrate the 

important state interest in a fair and impartial judiciary; at 

the same time, however, Congress explicitly expressed the 

affirmative intent to replace unlawfully dilutive electoral 

systems with ones in which minorities would have a full and fair 

opportunity to participate. In enacting Section 2(b) of the 

Voting Rights Act in 1982, it is clear that Congress was 

continuing the struggle to make the Act responsive to the needs 

and aspirations of the nation -- to make absolutely certain that 

the fundamental right of minorities to vote for candidates of 

their choice was not abridged. 

For these reasons, a court should first proceed to determine 

whether the Gingles three-part test has been met; it should then 

proceed to consider, under the "totality of the circumstances," 

other relevant factors, 18 including the state interest in 

maintaining an at-large election system, to determine whether, on 

balance, the plaintiffs have proved a Section 2 violation.1? 

18 por example, one of the two "[a]dditional factors that in 

some cases have had probative value" in the Senate Report’s 

illustrative list of totality of the circumstances factors is 

"whether the policy underlying the state or political 

subdivision’s use of such voting qualification, prerequisite to 

voting, or standard, practice or procedure is tenuous." S. Rep. 

No. 417, 97th Cong., 24 Sess. 29, reprinted in 1982 U.S. Code 

Cong. & Admin. News 177, 207. In the proceedings below, the 

district court considered this factor at the appropriate peint -- 

during a trial on the merits. The district court was not 

persuaded by defendants’ defense that at-large elections served a 

critical state interest. The court determined that "(wlhile the 

Court does not find that the present system is maintained on a 

tenuous basis as a pretext for discrimination, the Court is not 

persuaded that the reasons offered for its continuation are 

compelling." District Court Opinion at 77. 

19 Because of my view that the State has not articulated a 

substantial interest in retaining the existing at-large system of 

  

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* BY 

B. 

In the instant case, the State has not emphasized the 

interests discussed above as justification for its dilutive 

electoral system. The State instead focused on the argument, 

already addressed, that Texas district court judges are single- 

person offices not subject to the dilution test. The State’s 

interests which were asserted at trial include (1) ensuring 

popular accountability by making judges’ jurisdiction coterminous 

with the electoral boundaries; (2) avoiding bias caused by small 

electoral districts; and (3) administrative advantages of at- 

large elections, including the use of specialized courts. The 

majority would accept the existence of these interests and afford 

them controlling weight: 

In embracing the single official concept, we 

express the judgment that the state’s powerful interest 

in its structural arrangement of individual trial 

judges outweighs the potential amelioration of any 

dilution of minority interests achievable by 

districting. This is particularly true here, where ... 
  

electing district judges, I do not address the question of how 

much weight this factor should be afforded. As the Supreme Court 

has indicated, "recognizing that some Senate Report factors are 

more important to multimember district vote dilution claims than 

others ... effectuates the intent of Congress." Gingles at 49 

n.l1s. I do, however, indicate my firm belief that, under no 

circumstances, should the State’s interest outweigh the following 

factors: the extent to which minority group members have been 

elected to office in the jurisdiction and the extent to which 

voting in the elections of the jurisdiction has been racially 

polarized. This belief is based on my acknowledgement of the 

Supreme Court’s indication that "[u]nder a ’ functional’ view of 

the political process mandated by § 2 ... the most important 

Senate Report factors bearing on § 2 challenges to multimember 

districts are [these factors.]" Id. Additionally, placing 

greater weight on the factors which examine minority success at 

the polls and racial voting patterns furthers the purpose of the 

Act to "correct an active history of discrimination ...[and] deal 

with the accumulation of discrimination." S. Rep. at 5. 

-3 = 

 



  

+ » 

the subdistricting remedy is at best problematic, and 

is likely perverse. The state’s interests include 

avoiding the fact and appearance of biased 

decisionmaking, preserving the core attribute of the 

trial judge -- unshared and non-delegable judgment. 

Majority Opinion at 38. I do not agree that the articulated 

state interest is sufficient to outweigh those factors 

demonstrating the existence of vote dilution. 

Accountability: The State has advanced the argument that 

at-large elections provide greater accountability of the judge to 

county voters. Consequently, as the Chief Justice of the Texas 

Supreme Court testified, judges are "accountable to those people 

who can be hailed [sic] into their court," because people who 

feel they have been wronged by a particular judge may vote 

against that judge in the next election. 

In the instant case accountability is not a compelling 

enough reason to justify maintaining the current dilutive system. 

The argument that judges must remain "accountable" to potential 

litigants in their courts pales in light of the current Texas 

venue rules, which frequently result in an out of county resident 

appearing before a judge for whom the litigant cast a vote 

neither for nor against. Similarly, parties can agree to give a 

county court venue over a case not arising in the county. Nipper 

v. U-Haul Co., 516 S.W.2d 467 (Tex. Civ. App. --= Beaumont 1974). 

There are other occasions when a party may appear before a 

judge elected by the residents of another county. For example, 

district court judges are frequently called into other counties 

to help with docket control. Despite the fact that the county’s 

residents have no recourse against this out-of-county judge at 

- 23 = 

 



  

® » 

the ballot box, Texas courts have upheld the constitutionality of 

this practice. See, e.g., Reed v. State, 500 S.W.2d 137 (Tex. 

Crim. App. 1973). Nor is the practice of electing judges from 

subdistricts without precedent in the state. Texas Justice of 

the Peace courts, lower level trial courts, are elected from sub- 

county precincts while having jurisdiction over the entire 

county. 2° 

Accountability may in fact provide one of the rationales for 

having an elected judiciary; in the instant case, however, the 

State has not explained why accountability is an important 

interest under the existing system. Judges will still be 

accountable to the electorate even if they are elected from areas 

smaller than the county. Furthermore, there is no indication 

that the theory of judicial accountability has worked in practice 

in the state. As witnesses for the defendants noted, judicial 

campaigns seldom addressed the judicial performance of the 

particular candidates. More commonly, voters cast their ballots 

on the basis of race, party affiliation, name recognition or 

other factors unrelated to judicial performance. 

  

20 15 Martin v. Allain, 658 F. Supp. 1183, 1195-96 (S.D. Miss. 
1987), the court adopted a single-member district remedy for some 

Mississippi trial judges who were elected at-large in racially 

dilutive elections, after finding that Mississippi already 

elected some other judges from areas smaller than the court’s 

jurisdiction. The court there stated: 

Although the state has adopted the policy of the post 

system of electing judges in multi-member judicial districts 

above the justice court level, it long ago adopted the 

policy of single-member electoral districts for justice 

court judges. The state also has the policy of judges 

deciding cases which may originate outside their election 

districts. 

- 04 - 

 



  

Lg ¢ 

There seems to be no basis in fact for the State’s 

contention that county-wide accountability is important to the 

proper selection of district judges, or that ensuring a measure 

of electoral accountability is significantly defeated by dividing 

the county into electoral districts. The State’s asserted 

interest in assuring that litigants have the opportunity to 

respond at the ballot box to judges before whom they have 

appeared seems more academic than real. 

A Fair and Impartial Judiciary: Both the State and 
  

intervenors put on witnesses who testified that the creation of 

subdistricts was inadvisable because it could lead to perceptions 

of judicial bias and undue influence by special interests. 

Specifically, the witnesses testified that judges elected from 

smaller districts would be more susceptible to undue influence by 

organized crime or to pressure by other political sources 

including special interest groups. 

This concern that a judge elected from a small electorate is 

. more susceptible to improper pressure, however, has not stopped 

Texas from creating judgeships in some counties with relatively 

small populations. Texas has 362 district courts. Of these, a 

significant number are elected from areas of less than 100,000 

people; in a number of areas, as few as 24,000 to 50,000 people 

constitute the relevant electorate. Even if Harris County (with 

a population of 2.5 million people) was divided into fifty-nine 

subdistricts (the number of district courts of general and 

special jurisdiction), each district would contain approximately 

- 25 = 

 



  

3 » 

41,000 people.2l If Dallas County were divided into thirty-seven 

subdistricts, each subdistrict would have approximately 42,000 

people. Consequently, the asserted State concern with the size 

of the electorate is of questionable import. 

Furthermore, Texas law does not reflect the witnesses’ fear 

that subcounty districts are inconsistent with the existence of a 

fair and impartial judiciary. Notably, the Texas Constitution 

does not even require the county-wide election of the district 

judges at issue here, but permits the voters to decide to elect 

them from subdistricts. See Tex. Const. Art. 5, § 7a(i) (Vernon 

1990). Justices of the Peace are already elected from areas 

smaller than a county; in a very extended number of counties, 

these districts contain smaller populations than the hypothetical 

subdistricts of Dallas and Harris counties discussed above. For 

example, the Texas Constitution permits counties with as few as 

18,000 people to be divided into four justice of the peace 

precincts. Tex. Const. Art. 5, § 18(a) (Vernon 1990). 

Considering the precedent within the state for the creation 

of judicial subdistricts, the size of the potential subdistricts, 

and the lack of any real indication that perceived impropriety 

would result, 22 I cannot agree that this asserted interest should 

be afforded substantial weight. 

  

2lrhis is not meant to suggest, however, that this many 

subdistricts are required. If fewer subdistricts are utilized, 

each subdistrict will, of course, have a greater population. 

It is also notable that one judge, an intervenor in the 

instant case, testified that he was not aware of any allegations 

of unfairness or suggestions that white litigants were not 

treated fairly by minority judges elected from subcounty Justice 

of the Peace precincts. 

- 26 = 

 



* #» 

Administrative Advantages: The State has cited to the 
  

administrative advantages of the present system, including the 

county-wide retention of records, the random assignment of cases 

to judges within the county which aids docket control and county- 

wide jury empaneling. There is no reason why an electoral scheme 

utilizing subdistricts cannot retain each and all of these 

administrative features; any remedy imposed in this case need not 

require that a judge elected from a subcounty area have 

jurisdiction only over that area. In fact, the interim plan 

fashioned by the district court specifically retained these 

administrative features. Furthermore, even if retention of 

certain administrative conveniences were not possible under a 

remedial scheme, that fact cannot justify the continuation of an 

otherwise racially dilutive electoral process. See Westwego 

citizens for Better Gov’t v. Westwego, 872 F.2d 1201 (5th Cir. 

1989). : 

The majority opinion seems to place great weight on the 

interest of the State in retaining the system of "specialty" 

courts. I am unable to conceive why a remedy would be unable to 

accommodate this interest in retaining these courts of 

23 Most counties which utilize the specialized jurisdiction. 

administrative convenience of specialty courts have several of 

each court; consequently, a remedy can be formulated which 

  

23 It should be noted that the Texas Constitution limits the 

State’s interest in establishing specialty courts; the state 

supreme court has ruled that the legislature may not disturb 

state courts’ jurisdiction.  



¢ » 

retains the use of such courts.24 It cannot be gainsaid that the 

State has almost unlimited flexibility to devise a remedial plan 

which retains specialty courts and other important government 

interests as much as possible while eradicating the dilution of 

minority voting strength. It is my firm belief that the history, 

the intent, the text and spirit of the Voting Rights Act in 

general and Section 2 in particular mandates the implementation 

of just such a remedial electoral scheme. 

Summary: Taken together, the State’s articulation of its 
  

interest in retaining the current system seems impotent when 

compared to the clear purpose of the Voting Rights Act. The 

State has not shown an inalterable policy of not subdividing 

districts, nor has it shown that judges will be less accountable 

to the electorate when elected from a smaller unit. Further, 

there is no indication that any impropriety, real or perceived, 

on the part of judges elected from smaller units will in fact 

occur; this is especially true in light of the size of some 

electoral units already in existence. Finally, while the State 

may indeed have a legitimate interest in retaining specialty 

courts, the State has failed to demonstrate why that interest 

cannot be effectuated in an electoral scheme which does not 

dilute minority voting strength. While it may indeed be 

possible that a case will someday come before a court in which a 

  

24 pgecause the district court, in its interim plan, indicated 

the belief that a remedy could be created which allows the 

substantial use of the Texas system of specialty courts, District 

Court Order at 7, I express no view on whether or not a state’s 

interest would be substantially stronger if such a remedy could 

not be devised.  



_ 

state can articulate such an interest in retaining the current 

system so as to tip the balance when weighing the totality of the 

circumstances, I am convinced that this is not that case. 

III. 

Although there is not room to fully address the district 

court’s opinion on the merits, I feel it is necessary to indicate 

that I would not affirm the remedial portion of the district 

court’s order in toto. Specifically, I am constrained to 

conclude that the district court acted beyond the scope of its 

remedial powers by ordering that judicial elections be 

nonpartisan. 

A district court, in fashioning a remedy under the Voting 

Rights Act or the Constitution, must not reject state policy 

choices any more than necessary to correct the specific violation 

involved. See White v. Weiser, 412 U.S. 783, 93 S. Ct. 2348, 37 

L. Ed. 2d 335 (1973): Whitcomb v. Chavis, 403 U.S. 124, 91 S. Ct. 

1858, 29 L. BEA, 24 383 (197)]). Interim plans are not exempt from 

the requirement of due deference to state policy. In fact, 

because reapportionment is primarily a matter for legislative 

consideration, 2° the doctrine of judicial deference to state 

interests is especially strong when a court orders a temporary Or 

interim plan. Upham v. Seamon, 456 U.S. 37, 102 S. Ct. 1518, 71 

L. Ed. 2d 725 (1982). As this Court stated in Chisom v. Roemer, 

853 F.2d 1186, 1189 (5th Cir.), rehearing denied, 857 F.2d 1473 
  

(1988): 

  

25. connor Vv. Finch, 431 U.S. 407, 97 8, Ct. 1828, 52° L. BEd. 24 

465 (1977).  



  

¢ W 

a federal court should jealously guard and sparingly 

use its awesome power to ignore or brush aside long- 

standing state constitutional provisions, statutes, and 

practices. There can be no doubt that...federal courts 

do and indeed must have this authority in our unique 

form of government. It is the use of this power that 

must be maintained in the balance, a balance which is 

more delicate than usual when a state’s judicial 

process is involved. 

The district court’s order fails to defer to a political 

choice of the State of Texas, a choice which was not even 

challenged by the plaintiffs in the instant case. The district 

court gave no explanation for rejecting the system of partisan 

elections. No evidentiary hearing was held on the issue, and no 

factual findings were made. The equity powers of the district 

court neither encompass nor justify the district court’s actions; 

the district court should have deferred to the state’s policy 

choice for partisan elections as expressed in its statutory 

scheme. 

IV. 

In sum, I cannot concur in the majority’s opinion in the 

instant case. "The Voting Rights Act was designed by Congress to 

banish the blight of racial discrimination in voting, which has 

infected the electoral process in parts of our country for nearly 

n26 1 stand strong in the belief that the majority has 
a century. 

chosen the wrong lens with which to examine this particular 

specimen of vote dilution. The majority has looked to the 

function of the elected official, and the duties and powers of 

that official once in office, to conclude that, because trial 

judges act independently, at-large elections cannot result in 

  

26 gouth Carolina v. Katzenbach, 383 U.S. 301, 308, 86 S.Ct. 

803, 808, 15 L.Ed.2d 769 (1966). 

- 30 = 

 



  

| k 4 

minority vote dilution. Again, there is no support in the words 

of the Act itself, in Chisom, in the legislative history of 

Section 2, nor in logic for the majority’s embrace of this 

result-oriented distinction; neither the language nor the history 

of the Voting Rights Act indicates that the Act is, in any way, 

concerned with what names or positions are listed on the ballot. 

Section 2(b) of the Voting Rights Act is concerned with the 

rights of the minority voters casting their ballots for leaders 

of their choice. The United States Congress, by enacting the 

Voting Rights Act, has instructed that this and every other court 

focus on the power and effect of each vote cast, and in making 

sure that, because of submergence in white majority areas, 

minorities are not denied an equal opportunity to effectively 

participate in the democratic process. 

I respectfully dissent. 

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