Brief Amicus Curiae of American Jewish Congress; Application to Practice Pro Hac Vice; Proposed Order

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October 15, 1989 

EXPRESS MAIL 

Mr. John Neill 
Clerk, United States District Court 
Western District of Texas 
Midland-Odessa Division 
316 U.S. Courthouse 
200 East Wall Street 
Midland, Texas 79761 

Re: Neo. MO-88-CA-154; 
American Citizens 

Mattox et al. 

Dear Mr. Neill: 

Enclosed please find an 
Application to Practice Pro Hac 
Brief Amicus 
above-referenced case. 

Please return a file stamped copy. 
us in the enclosed envelope. 
being sent to the 

postage prepaid. 

questions, please If you have any 

call me. 

Sincerely, 1% 

Cais Opastosn SN 
Janis Jacobson Peiser 

Regional Director 

American Jewish Congress 

Enclosures 

League 

( LULAC), 

Vice 
Curiae of American Jewish Congress in the 

of the 

Suite 212 

Southwest Region 

Dallas, Texas 75243 

214/368-2731 

of United Latin 

et al. Vv. Jim 

original and two copies of an 

and Order, and 

documents to 
Copies of the filing are 

other parties by first class mail, 

do not hesitate to 

    
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CC. William L. Garrett 

Kolando Rios 

Susan Finkelstein 

Sherrill A. Ifi}k 

Gabrielle K. McDonald 

Edward B. Cloutman, III 

E. Brice Cunningham 

kRenea Hicks 

Ken Oden 

David R. Richards 

J. Eugene Clements 

Darrell Smith 

Michael J. Woods 

  
      

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IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

LEAGUE OF UNITED LATIN 
AMERICAN CITIZENS, et al., 

Plaintiffs, 

YS. 
NO. MO-88-CA-154 

JAMES MATTOX, et al., 

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Defendants. 

BRIEF AMICUS CURIAE OF 
AMERICAN JEWISH CONGRESS 
  

American Jewish Congress (“the Congress") respectfully submits 

this brief amicus curiae pursuant to leave.     

I. Issues 

The Congress will address two issues in this brief: (i) 

whether "partisan voting patterns may... prevent a finding of 

racially polarized voting" under Section 2 of the Voting Rights Act 

of 1965, as amended ("Section 2") (The State Defendants' Post-Trial 

Brief, page 7); and (ii) whether the race of the candidate is a 

factor to be considered under Section 2. The Congress will analyze 

the legislative history of the 1982 amendment to Section 2 and the 

Supreme Court's construction of that amendment in Thornburg wv. 
  

Gingles, 478 U.S. 30 (1986), in the hope that this analysis will 

be of benefit to the Court. 

  

    

  

   



  

II. Discussion 
  

A. Background 

The primary source of legislative history for the 1982 

amendment to Section 2 of the Voting Rights Act is Senate Report 

No. 97-417, U.S. Code Cong. & Adm. News 1982, pp. 177 ef sed. (“the 

Senate Report"). The Senate Report clearly says that the 1982 

amendment's primary purpose was to eliminate the requirement 

imposed by the Supreme Court in Mobile v. Bolden, 446 U.S. 55   

(1980), that plaintiffs prove discriminatory intent as an element 

of a Section 2 violation. Senate Report, pp. 28, 67. The Senate 

Report says that amended Section 2 codifies the "results test" of 

White v. Regester, 412 U.S. 755 1973): "If as a result of the 
  

challenged practice or structure, plaintiffs do not have an equal 

  

  

opportunity to elect candidates of their choice, there is a 

vielation of this section." Id. at 28 (emphasis added). 

To guide the courts in determining whether there has been a 

Section 2 violation, the Senate Report adopts the factors first set 

out by the Fifth Circuit in Zimmer v. McKeithen, 485 F.2d 1297 (5th   

Cir. 1973), and used by the Supreme Court in White. Senate Report, 

Pp. 28-29. Among the nine factors enumerated in the Senate Report 

are: 

"a. the extent to which voting in the 
elections of the state or political 
subdivision is racially polarized; [...and] 

7. the extent to which members of the 
minority group have been elected to public office in the jurisdiction." 

  

  

 



  

Id. at 29. Nowhere in the Senate Report is the party affiliation 
of ie candidates or the voters mentioned as a factor to be 
considered in a Section 2 case, 

B. Racially Polarized Voting 

Despite the lack of any reference to party atfiliation in 
the Senate Report, the State Defendants and Defendant Intervenor 
Dallas County Judge Harold Entz ("Entz") argue that "a Section 2 
Violation is not established when partisan preferences, not racial 
preferences, best account for electoral outcomes." State 
Defendant’s Post-Trial Brief at 5; see Entz's Post-Trial Brief at 
8-9. This conclusion is contrary to the legislative history found 
in the Senate Report and the majority opinion in Thornburg v. 
Gingles, 478 U.S. 30 (1986). 

Turning first to the Senate Report factors quoted above, it 
is apparent that racially polarized voting (factor 2) is distinct 
from minority group representation (factor 7). Thus, the Senate 
Report implies that by "racially polarized" voting, it does not 
mean whites voting for whites and blacks voting for blacks, as the 
State Defendants and Entz assume. 

The correct definition of "racially polarized" voting is 
contained in footnote 21 of the majority opinion in Gingles, viz.: 
"where ’'black voters and white voters vote differently.’" 478 U.S. 
at 53 n.21 (emphasis added) . According to the Gingles majority, 
the relevant inquiry concerning racial bloc voting is twofold: (1) 
"Whether minority group members constitute a politically cohesive 
unit," and (2) "whether whites vote sufficiently as ga bloc usually 
to defeat the minority’s preferred candidates." Id. at 56 (emphasis 

3 

  

  

 



  

added). Strictly speaking, therefore, the race, party affiliation 

and other characteristics of the minority's preferred candidates 

are irrelevant to the question of racial bloc voting. 

If the fact that the minority's preferred candidates are 

Democrats in a jurisdiction where whites vote for Republicans 

precluded a finding of racial bloc voting, then the purpose of 

Section 2 would be defeated. The point of Section 2 is to provide 

the minority "an equal opportunity...to elect candidates of their 

choice" in a jurisdiction where they have been denied this 

opportunity in the past. Senate Report, p. 30. To deny minority 

voters the opportunity to elect their preferred candidates on the 

ground that they belong to the "wrong" party is to force them to 

continue to accept the preferred candidates of the white majority. 

Surely this is not what Congress intended when it enacted Section 

2. 

€C. Race of the Candidate 

The Senate Report clearly specifies that the race of the 

candidate is relevant to a Section 2 claim. The number of minority 

candidates who have been elected in the jurisdiction is one of the 

factors to be considered by the courts. Id. at 29. "The Committee 

language codifies the approach used in Whitcomb, White and 
  

subsequent cases, which is that the extent to which minorities have 

been elected to office is only one ‘'circumstance' among the 

"totality' to be considered." Id. at 68. 

Unlike racial bloc voting, the number of minority members 

elected to public office in a jurisdiction is not decisive in a 

Section 2 case. In a footnote to factor 7, the Senate Report 

 



  

minimizes the significance of this factor: 

"The fact that no members of a minority group 
have been elected to office over an extended 
period of time is probative. However, the 
election of a few minority candidates does not 
"necessarily foreclose the possibility of 
dilution of the black vote" in violation of 
this section. Zimmer 485 F.2d at 1307. If it 
did, the possibility exists that the majority 
citizens might evade the section e.q9., by 
manipulating the election of a "safe" minority 
candidate." 

id. at 29, n. 115. The lack of minority officeholders may be 

probative of past discrimination in a particular jurisdiction, but 

the fact that some minority candidates have been elected does not 

disprove a Section 2 claim. 

The more important factor, according to the Gingles majority, 

is racial bloc voting which results in the minority's inability to 

elect their preferred candidates, whether black or white, 

Republican or Democratic, rich or poor. 478 U.S. at 35. 

It is the opportunity for minorities to elect "candidates of their 

choice" (id. at 28 and 67), not candidates of their race, which 

Section 2 was meant to protect. 

II¥. Conclusion 
  

The legislative history of the 1982 amendment to Section 2 

and the Gingles case provide no support for the view that partisan 

voting precludes a finding of racially polarized voting. The race 

of the candidate is relevant in a Section 2 case, but not 

determinative. The Senate Report and the Gingles case support the 

conclusion that racially polarized voting may be found together 

with partisan voting and successful minority candidates. 

5 

  

  

 



  

. 

Respectfully submitted, 

ba co 

/ 
/ ! os ro ; 

/ AN LLL { ~ No 

  

NEIL H. COGAN 

Storey Hall (SMU) 

3315 Daniel Avenue 
Dallas, Texas 75275 

£ 7 £ 4 EF or 
Er XC ~— rT Ls / 

ELIOT SHAVIN 

3500 Oak Lawn, Suite 240 
Dallas, Texas 75219 

(214) 522-4050 

  

ATTORNEYS FOR AMERICAN 

JEWISH CONGRESS 

CERTIFICATE OF SERVICE 

I certify that on October 12, 1989, I served this Brief Amicus 
Curiae of American Jewish Congress upor: all counsel herein by 
depositing true copies of same, enclosed in properly addressed 
envelopes, postage prepaid, in a depository of the United States 
Postal Service. 

  

Ws ) A FY SL pee 

[ Aan ope 
  

Neil H. Cogan 

  

 



  

» » 

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

» LEAGUE OF UNITED LATIN 

AMERICAN CITIZENS, et al., 

Plaintiffs 
VS. NO. MO-88-CA-154 

JAMES MATTOX, et al., 

* 
k
k
 

¥ 
% 

* 
* 

Defendants. 

APPLICATION TO PRACTICE PRO HAC VICE 
  

TO THE HONORABLE JUDGE OF SAID COURT: 

Come now Neil H. Cogan and Eliot D. Shavin and represent this 

their application for permission to practice pro hac vice, and in 

support thereof respectfully show: 

1. That they intend to file with this Court an application for 

admission to practice in the United States District Court for the 

Western District of Texas. 

2. That Neil H. Cogan is a member in good standing of the 

State Bar of Pennsylvania and the State Bar of New York. 

3. That Eliot D. Shavin is a member in good standing of the 

State Bar of Texas. 

Wherefore, Neil H. Cogan of the Bar of Pennsylvania and New 

York, and Eliot D. Shavin of the Bar of Texas, pray that they be 

admitted pro hac vice on behalf of amicus curiae American Jewish 

Congress. 

{ 
Dated this | day of October, 1989. 

dl (oR 

Neil H. Cogan 

is BE TO 
  

  

Eliot Shavin 

  

  

 



3 » 

  

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

a LEAGUE OF UNITED LATIN 
AMERICAN CITIZENS, et al., * 

* 

Plaintiffs * 
vs. * NO. MO-88-CA-154 

* 

JAMES MATTOX, et al., * 
* 

Defendants. * 

ORDER 

Came on for consideration this day by the Court the motion of 

Neil H. Cogan and Eliot D. Shavin to appear in this cause pro hac 

vice on behalf of amicus curiae American Jewish Congress. The Court 

finds that the motion is meritorious; it is accordingly 

ORDERED, ADJUDGED and DECREED that the motion of Neil H. Cogan 

and Eliot D. Shavin to appear in this cause on behalf of American 

Jewish Congress pro hac vice be, and hereby is GRANTED. 

ENTERED this day of + 1989, at ’   
  

Texas. 

  

UNITED STATES DISTRICT JUDGE   

  
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