Plaintiffs' Response to Post Trial Briefs

    LAW OFFICES OF 

TEXAS RURAL LEGAL AID. INC. 
201 NORTH ST. MARY'S ST.. SUITE 600 

SAN ANTONIO. TEXAS 78205 

(512) 222-2478 

October 4, 1989 

John D. Neil 
Deputy Clerk 
200 East Wall Street 
Midland, Texas 79702 

Re: LULAC et al v Mattox et al 

Civil Action No. MO-88-CA-154 

Dear Mr. Neil: 

I am enclosing an original and two copies of Plaintiffs’ Response 
to Post Trial Briefs. Could you please file them at your 
convenience? 

Also, I am enclosing a stamped, self-addressed envelope. Could you 
please mark one of the copies with your filemark and return it to 
me? 

In advance, thank you for your help. 

Sincerely yours 

At ith 

Susan Finkelstein 

Staff Attorney 

   

federal express delivery 

Xc: all counsel of record 
(certified) 

 



  

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

MIDLAND-ODESSA DIVISION 

LULAC, et al., 

Plaintiffs, 

NO. MO-88-CA-154 VS. 

MATTOX, et al., 

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Defendants. 

PLAINTIFFS’ RESPONSE TO POST TRIAL BRIEFS 

TO THE HONORABLE COURT: 

l. Plaintiffs will not respond point by point to the post 

trial briefs of the Defendants or the two Defendant-intervenors. 

For the Court’s convenience, however, Plaintiffs respond to several 

selected points. 

0 First, the Defendants and the Defendant-intervenors claim 

that Congress intended Section 2 of the Voting Rights Act to 

incorporate the reasoning and analysis of Whitcomb v Chavis, 403 
  

U.S. 124: (1971). According to the Fifth Circuit, however, 

"[c]learly, Zimmer and White inspired both the language of the 

statute and the legislative explanation of its meaning.... Congress 

has made clear its understanding that a court under section 2 

should apply White and Zimmer." Jones v City of Lubbock, 727 F.2d 

  

  

364, 379 (5th cir. 1984). Further, Congress intended that courts 

rely upon the objective factors listed in subsection (b) of Section 

2. Id. at 377-8. Party politics is noticeably lacking in that 

 



  

list of factors. Finally, Jones notes that courts should rely on   

the "totality of circumstances as set out in White against Regester 

and the case law under it." Id. at 380 n. 11. In other words, 

courts are to rely on White, 412 U.S. 755 (1973), and the cases 

that follow and interpret it. It is difficult to see how Whitcomb, 
  

which was decided on June 7, 1971, follows and interprets White, 

which was not decided until June 18, 1973.1 

3. Defendants rely on Sanchez v Bond, 875 F.2d 1488 (10th   

Cir. 1989) in their discussion of Bexar County. Defendants’ Post 

Trial Brief at 27-8. Initially, the Sanchez analysis of Anglo v. 

  

Anglo contests is not the law of this Circuit. Westweqgo Citizens 

for a Better Government v Westwego, 872 F.2d 1201, 1208 n.7 (5th   

Cir. 1989); Campos v City of Baytown, 840 F.2d 1245, (5th Cir.   

1988), rehearing denied, 849 F.2d 1240, cert. denied, U.S. 
  

  

— (1989); citizens for a Better Gretna v City of Gretna, 834 F.2d   

496,::'503. {5th Cir. 1987). Further, even if Sanchez did apply in 

the Fifth Circuit, it would not change the results of this case. 

Sanchez found that it was appropriate to review Anglo v. Anglo 

contests because Hispanics predominated in the Democratic party and 

their endorsement was essential to political success in the county. 

Sanchez, 875 F.2d at 1496. Here, the best Defendants can say is 

that "Hispanic voters vote overwhelmingly for the Democratic 

candidate in judicial races in Bexar County." State Defendants’ 

  

'0f course, both White and Thornburg v Gingles, 478 U.S. 30 (1986), the only Supreme Court decision on the amended Section 2, considered partisan election systems. In neither case was the Supreme Court moved by partisanship. 

  

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Post-Trial Brief at 27. Just because most Hispanic voters vote 

democratic does not mean that Hispanics predominate in the 

political process in judicial elections in Bexar County. 

  

4. Finally, Defendant-intervenor Entz extends Monroe v City 

of Woodville, F.2d (5th Cir. Aug. 30, 1989) beyond its 

limits. Defendant-intervenor Entz’ Post Trial Brief at 8-9. He 

claims that Monroe stands for the proposition that minority voters 

are not cohesive unless they vote together for minority candidates. 

In fact, Monroe states that a minority group’s failure to vote for 

only one minority candidate, when there is a choice among minority 

candidates, may be evidence that cohesiveness does not exist. 

Here, in Dallas County, this situation simply has not arisen. In 

the seven general elections analyzed by Plaintiffs, Plaintiffs’ 

Exhibit D-02, one Black candidate opposed one Anglo candidate. 

This analysis shows that Plaintiffs meet the Gingles test in Dallas 

County because the Black community’s preferred candidate lost each 

time. Further, even if Defendant-intervenor Entz is correct that 

Monroe requires evidence that Blacks prefer Black candidates, 

Plaintiffs prevail because in five out of the seven elections, the 

Black candidate lost. Certainly, this meets the Gingles standard 

that usually the minority community’s candidate loses.? 478 U.S. 

at 49. 

THEREFORE, for the reasons stated in this brief, other 

  

’‘Defendant-intervenor Entz also misinterprets the Gretna case. Defendant-intervenor Entz’ Post-Trial Brief at 11. That case holds that it is not appropriate to analyze elections unless a minority candidate opposes an Anglo. 

 



  

documents filed by Plaintiffs in this case and at trial, Plaintiffs 

respectfully request that the Court find in their favor on the 

merits in this case and order the Defendants to promptly propose 

a remedy. 

Respectfully submitted: 

GARRETT, THOMPSON & CHANG 
ATTORNEYS AT LAW 

A Partnership of Professional 
Corporations 

William L. Garrett 
Brenda Hull Thompson 
8300 Douglas #800 
Dallas, Texas 75225 
(214)369-1952 
LEAD COUNSEL 

ROLANDO L. RIOS 
ATTORNEY AT LAW 
201 N. St. Mary's #521 
San Antonio, Texas 78205 
(512)222-2102 

SUSAN FINKELSTEIN 

STAFF ATTORNEY 

TEXAS RURAL LEGAL AID, INC. 
201 N. St. Mary’s #600 
San Antonio, Texas 78205 
(512)222-2478 

BY: / it TTL, 

ATTORNEY FOR PLAINTIFFS 
  

CERTIFICATE OF SERVICE 
  

I, Susan Finkelstein, do hereby certify that a true and 

correct copy of Plaintiffs’ Response to Post Trial Briefs has been 

 



  

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mailed via certified mail with correct postage to: 

ATTORNEY 
  

Plaintiff - Intervenors 
  

Edward B. Cloutman, III 
MULLINAX, WELLS, BAAB & 

CLOUTMAN, P. C. 
3301 Elm 

Dallas, TX 75226-9222 
214/939-9222 FAX: 214/939-9229 

E. Brice Cunningham 
Attorney at Law 
777 S. R. L. Thornton Fwy, Suite 121 
Dallas, TX 75203 
214/428-3793 

Julius Levonne Chambers 
Sherrilyn A. Ifill 
NAACP Legal Defense & Educational 

Fund, Inc. 
99 Hudson St., 16th floor 
New York, NY 10013 
212/219-1900 

Gabrielle K. McDonald 
MATTHEWS & BRANSCOMB 
301 Congress Ave., Suite 2050 
Austin, TX 78701 
512/320-5055 

Defendants 

Jim Mattox 
Mary F. Keller 
Renea Hicks 
Javier Guajardo 
Attorney General’s Office 
P. O. Box 12548 
Austin, TX 78711 
512/463-2085 

REPRESENTING 
  

Jesse Oliver 

Joan Winn White 

Fred Tinsley 

Jesse Oliver 

Joan Winn White 

Fred Tinsley 

Houston Lawyers Assn. 
Francis Williams 

Rev. William Lawson 

Houston Lawyers Assn. 
Francis Williams 
Rev. William Lawson 
Texas Legislative 

Black Caucus 

All Defendants 

 



  

EE) 

Defendant-Intervenors 

J. Eugene Clements 
E. O’Neill 
Evelyn V. Keys 
PORTER & CLEMENTS 

700 Louisiana, Suite 3500 
Houston, TX 77002-2730 
713/226-0600 

Darrell Smith 
Attorney at Law 
10999 Interstate Highway 10, 
Suite 905 
San Antonio, TX 78230 
512/641-9944 

Michael J. Wood 
Attorney at Law 
440 Louisiana, Suite 200 
Houston, TX 77002 
713/228-5105 

Mark H. Dettman 
County Attorney 
P. O. Box 2559 
Midland, TX 79702 
915/688-1084 

Ken Oden 
Travis County Attorney 
P. O. Box 1748 
Austin, TX 78767 
512/473-9415 

David R. Richards 
Special Counsel 
600 W. 7th St. 
Austin, TX 78701 

Robert H. Mow, Jr. 
HUGHES & LUCE 
2800 Momentum Place 
1717 Main St. 

Dallas, TX 75201 
214/939-5500 

Judge Sharolyn Wood 
of Harris County 

Judge Sharolyn Wood 
of Harris County 

Judge Sharolyn Wood 
of Harris County 

Midland County & 
District Judges 

Travis County District 
Judges 

Travis County District 
Judges 

Judge Harold Entz 
of Dallas County 

each at the correct address on this 4th day of October, 1989. 

Fs 

A FOR PLAINTIFF 
  

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