Supplemental Brief for State Defendants-Appellants

    No. 90-8014 
  

UNITED STATES COURT OF APPEALS 
FIFTH CIRCUIT 

  

LULAC COUNCIL #4434, et al., 
Plaintiffs-Appellees, 

V. 

JIM MATTOX, et al., 
Defendants-Appellants. 

  

Appeal From The United States District Court 
Western District of Texas 

Midland-Odessa Division 

  

SUPPLEMENTAL BRIEF FOR STATE DEFENDANTS-APPELLANTS 

  

JIM MATTOX 
Attorney General of Texas 

MARY F. KELLER 
First Assistant Attorney General 

RENEA HICKS 
Special Assistant Attorney General 

JAVIER P. GUAJARDO 
Assistant Attorney General 

P. O. Box 12548, Capitol Station 
Austin, Texas 78711-2548 
(512) 463-2085 

June 5, 1990 Attorneys for State Defendants- 
Appellants  



TABLE OF CONTENTS 

BASIC HISTORY AND LANGUAGE OF PROVISION AT ISSUE 

STATEMENT OF THE ISSUES ADDRESSED 

DISPOSITION OF THE ISSUES BY THE 
DISTRICT COURT AND PANEL 

SUMMARY OF THE ARGUMENT 

ARGUMENT 

I. SECTION 2 DOES NOT COVER STATE 
JUDICIAL ELECTIONS 

11, STATE DISTRICT JUDGES HOLD SINGLE-MEMBER 
OFFICES, AND ELECTING THEM COUNTYWIDE 
IS NOT A DILUTIVE ELECTORAL PRACTICE 
COVERED BY SECTION 2 OF THE VOTING 
RIGHTS ACT 

CONCLUSION 

 



    i 
] INDEX OF AUTHORITIES 

CASES PAGE(S) 

i Anderson U. Celebrezze, 480 U.S. 780 {1983) ......cermsmrirrismsrsnssons 9 

1 Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985) ............ 6 

Butts v. City of New York, 779 F.2d 141 (2d Cir. 1985) .....cceueuue....... 15 

i Chisom v, Edwards; 839.F.2d 1088 (Bh. Cir.) ..ciwmsinssmmsmsrsmme 3 

1 Diamond vu. Charles, 476 U.S. BA {198B) .....ccmmerinisnmiisinmismmms 1 

Forrester 'v. White, 484 U.S, 219 (1988) ......icuerrivmsrrmusisrsinsssssisens 8 

] Greenwood v. Peacock, 384 U.S. 808 (1966) ......ccevvuvrvvrvvsscessrrsssses 7 

I Haith v. Martin, 618 F.Supp. 410 (E.D.N.C. 1985) .....cnniicrisrrivessia 8 

Hatten v. Rains, 854 F.2d 687 (5th Cir. 1988) ......ceenusmsimtrssensis 11 

i Hicks: uv. Miranda, 422 U.S. 338 (1978) ...ccrisnrminmrnnnisimsiisinm 9 

Holtzman bv, Schlesinger, 414 U.S. 1304 (1973) ......umuimisiomisionss 10 

i Kelly v. RODINSON, 479 11.S. 36 (19BB] .....cccccnniinmsirminsimiismimrinn 10 

i Kentucky v. Graham, 473: 1.8. 189 (1988) ........uccusrmisissssiomtssiniin 1 

Kremer v. Chemical Construction Co., 456 U.S. 461 (1982) ........... Z 

i League of United Latin American Citizens, 
Council No. 4434 v. Clements, Nos. 89-8095 & 90-8014 

i Bth CIE May 11,0000)....ccm mein: snsmehisisinnmnimmsmsosmirs arson 1,4,6 

M.E.F. Enterprises v. City of Houston, 
} 109°8,01, 13V0 (1089) ........c.coc0.csiinnrisbisinsiessnssssinppssssessniesibasimsistrrsistroe 9 

Mandel v. Bradley, "432 1.8. 173 (1977) ..coesinivsimimmsssssisseiion 9 

i Mitchum v. Foster, 407 U.S, 238 (1972) cider 6 

| City of Mobile v. Bolden, 446 U.S. 55 (1980)........ccceuueererrrreereeenneerennns 10, 12 

New York v, Uplinger, 487 1.8. 2468 (1984) ......cccccirricrsmristsssssns 1 

| O'Shea v. Littleion, 414 11.8. 488 (1974) .......ccicmimnnmnsmmmnimmni 7 

I ii 

i 
 



   

  

Overton v. City of Austin, 871 F.2d 529 (5th Cir. 1989) .......ouu......... 16 

Pierson 0. Ray,. 386 U.S. BAZ (1987) .......vuiviisersisivesrnsisssirserssirmsrssses. 7 

Reynolds v, Sims, 377 U.S, 533 (19684).........ccsscvrinsssessurssnsrinisses sisasssnnnss 13,15 

SDJ, Inc. v. City of Houston, 841 F.2d 107 (5th Cir. 1988) .............. 9 

Shell Oil Co. v. Iowa Department of Revenue, 
109. S.Ct. 278 (OBB) ......orrrerrsriissisisssrissisiarennsasesmmisosissssaissmmsssarsonsosrssiosss 10 

South Carolina v. Katzenbach, 383 U.S. 301 (1966) ......ccocoevevevvnnnn.... 11 

Thomburg v. Gingles, 478 U.S, 30 (1986).......cccrvrsverssrrssrrnsssissesissenss passim 

Trainor v. Herncrclez, 431 US. A340 (1977) viirimsimsmsrmsstivivos 7 

United States v. Texas, 680 F.2d 356 (5th Cir. 1982) .....cceio 1 

Voter Information Project, Inc. v. City of Baton Rouge, 
612 F.2d 208 (St CIF. OBO) .......covirircmsireimneispisnrinsrsrssionsisrssonsssrassons 1 

Yellow Freight System, Inc. v. Donnelly, 
110 S.Ct. A B0B {1 OOD) .ovreseerrssivivissmmsmssnsasisiirinssurarinitresmnrainsssmsssiontsonmins 7 

Younger v. HQAITIS, 01 U.S, 37 (1971) .cvvenviinredirnisisismisisiismnseinn 7 

STATUTES 

42 U.S.C. § 1973 (LOBI) .....civrinrnrivenrmersrrmssurstrerrsivensssinmaressssoston sassiss sessrns 3 
42 U.S.C. 819730. (LOB) ......ommisivscrirsmstmsmissinmmmsrcrssrsbribiinsstsnsaiiaessssns eaten 8 
42 11.8.0. B-1O7UCH LIT OBD).. our cu uueiiosviornrsesorssans ins rs ivisisnnnsssdannnion sani 3,15 
42 U.S.C. Bl OB .crerserracrsstiensissssnresrirsismrsnriorssrerstsvssimarsirabsansiv soos ddoesosses si 7 
TEX. R. CIV. P. 330 trrsrecreservessinssssmmisosprssssisirssiersmatersnsrisurinistsrmapitarsassasion: 16 

MISCELLANEOUS 

Karlan, Maps and Misreadings: The Role of Geographic 
Compactness in Racial Vote Dilution Litigation, 
24 HARV. CR.-C.L. L. REV. 173 T198B0).......coivseeiirinnscrssisrsrvrirassasnsisaes 13, 16 

iii 

 



   

SUPPLEMENTAL BRIEF 

FOCUS 

The State Officials, who are defendants-appellants herein, submit this 

brief pursuant to the Court's order of May 16, 1990, directing that this case 

be reheard en banc and permitting the filing of supplemental briefs. The 

brief addresses the two legal issues addressed in the Court's panel opinion, 

League of United Latin American Citizens, Council No. 4434 v. Clements, 

Nos. 89-8095 & 90-8014 (5th Cir. May 11, 1990) ("LULAC"). The other 

issues on the merits of the case are addressed in the opening and reply 

briefs of the State Officials.! 

  

: This brief also will not address seven pending motions which the panel carried with the 
case but did not resolve, see Order of April 12, 1990. One presents a question of appellate 
jurisdiction, and the others present questions of attorney representation. 

Two of these motions seek the disqualification of private counsel for the Secretary of 
State of Texas and eight members of the Texas Judicial Districts Board. If the motions are 
granted, the State Officials on whose behalf this brief is filed are the Attorney General of Texas, 
the Secretary of State of Texas, and the thirteen members of the Judicial Districts Board, all in 
their official capacities. If the motions are denied (along with the alternative motions seeking 
certification to the Supreme Court of Texas), the State Officials on whose behalf this brief is 
filed are the Attorney General of Texas and five members of the Judicial Districts Board, all in 
their official capacities. These five members of the Judicial Districts Board are: (a) Thomas R. 
Phillips, Chief Justice of the Supreme Court of Texas; (b) Michael J. McCormick, Presiding 
Judge of the Court of Criminal Appeals of Texas; (c) Ray D. Anderson, Presiding Judge of the Sth 
Administrative Judicial Region; (d) Judge Joe Spurlock II, President of the Texas Judicial 
Council; and (e) Leonard E. Davis. The Governor of Texas was dismissed as a named party prior 
to trial, see Order of January 12, 1989, and is not a named appellant. 

As one of the named State Officials, the Attorney General of Texas, on behalf of the 
State of Texas, the real defendant-appellant here, see, e.g., Diamond v. Charles, 476 U.S. 54, 57 
n.2 (1986), and Kentucky v. Graham, 473 U.S. 159, 165-66 (1985), urges the Court to resolve the 
issues in the pending motions. Those concerning representation present critical issues of 
federalism and respect for state constitutional allocations of authority that, nonetheless, are 
easily resolved because extant law already has resolved them. See, e.g., New York v. Uplinger, 
467 U.S. 246, 247-48 n.1 (1984) (authority to represent a state is state concern); United States v. 
Texas, 680 F.2d 356, 368 n.16 (5th Cir. 1982) (Texas Attorney General has the exclusive right to 
represent state agencies). The nature of the issue means that failure to resolve them explicitly 
de facto denies them. 

 



   

BASIC HISTORY AND LANGUAGE OF PROVISION AT ISSUE 
  

The Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437, was 

enacted on August 6, 1965. Section 2 of the act provided: 

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. 

Section 2 was unaffected by the Voting Rights Act Amendments of 

1970, Pub. L. No. 91-285, 84 Stat. 314. Section 206 of the 1975 

amendments to the Voting Rights Act, Pub. L. No. 94-73, 89 Stat. 400, 

amended the original Section 2 to bring language minority citizens within 

its ambit by adding to the end of the provision the phrase ", or in 

contravention of the guarantees set forth in section 4(f)(2)."2 

The Voting Rights Act Amendments of 1982, Pub. L. No. 97-205, 96 

Stat. 131, which were enacted on June 29, 1982, again amended Section 2, 

which 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) 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 

  

4 The 1975 amendments, enacted on August 6, 1975, also brought Texas and its political 
subdivisions under the coverage of the act's preclearance requirements for the first time. 

 



   

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).3 The rest of the brief refers to the current version 

of § 1973 as Section 2, unless the context indicates otherwise. 

STATEMENT OF THE ISSUES ADDRESSED 
  

I. Whether Section 2 covers state judicial elections? 

II. Whether a system of judicial elections in which each elected judge 

operates as an independent judicial decisionmaker, and not as a member of 

a collegial decisionmaking body, can constitute illegal vote dilution under 

Section 2? 

DISPOSITION OF THE ISSUES BY THE 

DISTRICT COURT AND PANEL 
  

The district court concluded that Section 2 covers state judicial 

elections, relying on this Court's decision in Chisom v. Edwards, 839 F.2d 

1056 (5th Cir.), cert. denied sub nom. Roemer v. Chisom, 109 S.Ct. 390 

(1988) ("Chisom TI"). Rec. Ex. 81, Conclusion of Law No. 2. While 

‘recogniz[ing] that State District Judges function as sole, independent 

  

3 42 U.S.C. § 19731(c)(1) (1982) provides: 

The terms "vote" or "voting" shall include all action necessary to 
make a vote effective in any primary, special, or general election, 
including, but not limited to, registration, listing pursuant to this 
subchapter, or other action required by law prerequisite to 
voting, casting a ballot, and having such ballot counted properly 
and included in the appropriate totals of votes cast with respect to 
candidates for public and party office and propositions for which 
votes are received in an election. 

 



   

decision makers," it also concluded that a Section 2 vote dilution claim 

could be stated with regard to their election. Id. 

A panel of this Court reaffirmed Chisom I's holding that Section 2 

covers judicial elections, LULAC, at 4071-80, but held that a vote dilution 

claim could not be stated against the at-large election of state district judges 

in Texas because they are solo decisionmakers holding single-member 

offices, id., at 4080-87. One judge dissented from the latter holding. Id., at 

4087-4103. 

SUMMARY OF THE ARGUMENT 
  

Whether Section 2 covers state judicial elections primarily depends on 

the provision as it was enacted in 1965, not on the meaning of the word 

‘representative” in the 1982 amendments. Beginning in 1965, and for the 

next seventeen years until the passage of the 1982 amendments in response 

to the Supreme Court's Bolden decision, Section 2 added nothing to the 

protections against vote dilution already available under the Fourteenth and 

Fifteenth Amendments. Thus, Congress had no reason to consider during 

the legislative process leading up to the enactment of the 1965 Voting 

Rights Act whether it was reaching judicial elections in Section 2. Congress 

simply was indifferent to the matter because, unlike Section 5 and other 

important provisions of the act, Section 2 was a practical irrelevancy. No 

authoritative source of any weight from the act's original passage through the 

1982 amendments suggests that Congress has ever considered the question. 

There has never been the slightest Congressional debate over whether the 

language of Section 2 covers state judicial elections. 

Such Congressional inadvertence is a legally inadequate basis for 

concluding that it has intruded as deeply into state judicial institutions as a 

broad reading of Section 2 would permit. Clear Congressional statements 

94: 

 



    
are necessary before federal courts will construe federal statutes to reach 

and alter traditional state functions. The need for this clarity is at its 

greatest when the federal intrusion would be into state judicial functions. 

Historically, judicial functions have been more insulated from federal 

encroachments than any other state function. Evaluated in light of this 

requirement for a heightened clear statement from Congress, Section 2 

cannot be said to cover state judicial elections. Before it can reach so far, 

Congress must explicitly state its intentions. It has not yet done so. 

Even if Section 2 covers state judicial elections, vote dilution claims 

under it cannot be established against at-large elections for single-member 

offices. This legal proposition is valid even if several single-member offices 

performing the same function are filled through an at-large election from 

the same political subdivision or electoral unit. The reason is that Section 2 

requires that federal courts respect the basic integrity of those units and the 

state's choice in establishing them. Single-member districts for elections to 

collegial decisionmaking bodies maintains the necessary respect, because 

each voter in the electoral unit ultimately has a voice in the decisionmaking 

of the body. Single-member districts for elections to single-member offices 

are different. They result in a loss of the basic integrity of the state's chosen 

electoral unit because the voice of each voter in the unit is not heard in the 

decisionmaking of the elected official. 

Thus, Section 2 vote dilution claims cannot be established with regard 

to officials who are solo decisionmakers. Texas district judges are solo 

decisionmakers, as the district court found. They engage in collegial 

decisionmaking only on ancillary matters incidental to their core function as 

judicial officers. 

 



   

Plaintiffs cannot avoid this result by seeking a remedy other than 

single-member districts when solo decisionmakers are targeted. The first 

Gingles factor requiring geographical compactness of minority voters is a 

threshold liability issue. It requires federal courts to treat single-member 

districts as the paradigmatic remedy at the liability phase of a vote dilution 

case. 

ARGUMENT 

I. 

SECTION 2 DOES NOT COVER STATE JUDICIAL ELECTIONS 

The Supreme Court requires Congress, when passing legislation that 

"alter[s] the relationship between the States and the Nation," to expressly 

state its intention in unmistakable language in the statute itself. Mitchum v. 

Foster, 407 U.S. 225, 242 (1972); see also Atascadero State Hospital v. 

Scanlon, 473 U.S. 234, 243 (1985) (Eleventh Amendment context). The 

panel acknowledged this principle and explained the reason for it: 

Judicial insistence upon clear statement is an 
important interpretative tool vindicating concern for 
separation of powers and federalism. This insistence 
upon "an unequivocal expression of congressional 
intent[]" is based upon the fundamental nature of the 
interests at stake. 

LULAC, at 4078 (citations omitted). It then concluded that "Congress has 

clearly expressed the Act's application to the states[.]" Id. 

This analysis is correct, as far as it goes; however, in this case, the 

analysis of Section 2's reach must proceed further. Section 2's intrusion 

into the state judicial function is one of unprecedented magnitude. The 

Supreme Court assesses questions of federalism with even greater delicacy 

when they involve intrusions upon state judicial functions than when they 

-B- 

 



   

involve intrusions upon other state functions. This special treatment for 

state judicial functions is epitomized in Justice Black's sweeping language 

introducing the concept of "Our Federalism" in Younger v. Harris, 401 U.S. 

37 (1971): 

Since the beginning of this country's history 
Congress has, subject to few exceptions, manifested 
a desire to permit state courts to try state cases free 
from interference by federal courts. 

401 U.S. at 43. Trainor v. Hernandez, 431 U.S. 434 (1977), one of Younger's 

progeny, stresses the importance of principles of federalism, "particularly 

with the operation of state courts." 431 U.S. at 441 (emphasis added). See 

also O'Shea v. Littleton, 414 U.S. 488 (1974); Greenwood v. Peacock, 384 

U.S. 808 (1966). 

The heightening of an already high level of sensitivity when the state 

function is judicial manifests itself in other areas, too. To give federal courts 

exclusive jurisdiction over a federal cause of action, Congress must 

affirmatively divest state courts of their presumptively concurrent 

jurisdiction. Yellow Freight System, Inc. v. Donnelly, 110 S.Ct. 1566, 1568 

(1990). To avoid trenching upon basic tenets of comity and federalism, 

Congress must "clearly manifest" its intent to deprive state court judgments 

of finality when enacting federal remedial legislation. Kremer v. Chemical 

Construction Co., 456 U.S. 461, 477-78 (1982). To protect the 

independent role of the judiciary, the presumption is that Congress would 

have specifically abolished the doctrine of judicial immunity from damages 

under 42 U.S.C. § 1983 if it had intended to abolish the doctrine. Pierson v. 

Ray, 386 U.S. 547, 554-55 (1967). 

Even when permitting federal legislation to reach judges without 

explicitly stating that it was doing so, the Supreme Court has been careful to 

7 

 



    
insulate the judicial function from the reach of the federal legislation. See 

Forrester v. White, 484 U.S. 219 (1988) (permitting § 1983 damages 

recovery for gender discrimination from state judge in his capacity as 

administrator, not judge). In other words, the Court does not interpret 

federal remedial statutes to cover state judicial functions even when the 

words in isolation might encompass them. This principle seems strongest 

when the federal statute might work fundamental institutional changes in 

the judicial function. 

Thus, of all the state functions, the judicial function is unique in the 

degree of specificity required for Congress to statutorily intrude upon it. 

Congress may intrude upon state judicial functions only by being even more 

specific with regard to them than with regard to other state functions. 

Congress was not specific in Section 2. Its language, broadly read, 

encompasses all elections, but does not expressly cover state judicial 

elections. Therefore, Section 2 does not cover judicial elections. 

This conclusion is unaffected by the reach of Section 5 of the Voting 

Rights Act. In Haith v. Martin, 618 F.Supp. 410, 412-13 (E.D.N.C. 1985), 

affd mem., 477 U.S. 901 (1986) ("Haith"), a three-judge district court held 

that the preclearance requirement of Section 5 applies to changes in 

  

4 Another background theme supports the heightened requirement for Congressional 
specificity when intruding upon state judicial functions. That theme is the separation of 
powers and the concomitant need for an independent judiciary. Although the Constitution's 
requirements for separation of powers applies to federal, not state, branches of government, 
strains of its theme must intrude on the federal legislative process as it affects states, requiring 
a conscious effort by Congress to affect state judicial functions. 

5S Section 5, codified as 42 U.S.C. § 1973c (1982), requires covered States and political 
subdivisions to obtain either a federal court declaratory judgment or preclearance from the 
Department of Justice before they may change "any voting qualification or prerequisite to 
voting, or standard, practice, or procedure with respect to voting" which was in place at a 
certain point. 

 



judicial election systems. There is no discussion of the heightened clear 

statement rule. The Supreme Court simply affirmed without an opinion. 

Haith does not bind this Court in determining whether Section 2 

covers judicial elections. While Supreme Court summary affirmances are 

dispositions on the merits of a case, Hicks v. Miranda, 422 U.S. 332, 344 

(1975), their precedential value is severely limited, extending no further 

than "the precise issues presented and necessarily decided[,]" Mandel v. 

Bradley, 432 U.S. 173, 176 (1977). Only the judgment of the court below is 

affirmed, and courts may glean no broader legal principles from them than 

those essential to sustain the judgment. Anderson v. Celebrezze, 460 U.S. 

780 n.5 (1983); see also SDJ, Inc. v. City of Houston, 841 F.2d 107, 108, 

affg on reh'g, 837 F.2d 1268 (5th Cir. 1988), cert. denied sub nom. M.E.F. 

Enterprises v. City of Houston, 109 S.Ct. 1310 (1989). Thus, Haith stands 

for no more than that Section 5 requires preclearance of changes to the 

system of electing judges in covered jurisdictions. It does not direct this 

Court in the disposition of the question of whether Section 2 covers judicial 

elections nationwide. 

Likewise, Haith does not aid the Court in determining Section 2's 

reach. Section 5 and Section 2 coverage are fundamentally different. 

Section 2 coverage intrudes far more deeply into the judicial function. It 

can force fundamental systemic alterations in a state judicial system through 

federal court decrees. Section 5, on the other hand, conditions state- 

initiated changes on federal approval. Intrusive as it may be, it cannot be 

used as a tool to dismantle a century-old judicial system. Section 2 can -- 

and, at the district court level here, was. 

No other reliable indicators countermand the signal sent when 

Congress failed to include specific language in the original Section 2 

29.  



covering judicial elections. The legislative history of the original 1965 act is 

"sparse," City of Mobile v. Bolden, 446 U.S. 55, 60-61 (1980) ("Bolden"), and 

provides no helpful information on the subject. 

The effect of the 1982 amendments on Section 2's coverage of judicial 

elections was minimal. The Senate Report, an "authoritative source," 

Thornburg v. Gingles, 478 U.S. 30, 43 n.7 (1986) ("Gingles"), is bereft of any 

discussion pinpointing judicial elections as a target of the amendments. A 

glancing reference in an opposition subcommittee report to judicial districts 

buried in a string of other types of political subdivisions potentially affected 

by the bill and scattered testimony by witnesses during hearings on the bill 

are all that can be mustered to support the proposition that Congress 

intended to reach judicial elections through the amendments. These 

insubstantial morsels are woefully inadequate when weighed against the 

requirements of the heightened clear statement rule. Opposition 

statements carry "relatively little weight" in discerning a statute's meaning. 

Holtzman v. Schlesinger, 414 U.S. 1304, 1312 (1973); see also Shell Oil Co. 

v. Iowa Department of Revenue, 109 S.Ct. 278, 284 (1988). Witness 

statements in hearings which are not included in official Congressional 

reports (as these were not) are accorded no significance in determining the 

meaning of a statute. Kelly v. Robinson, 479 U.S. 36, 51 n.13 (1986). 

The single minimal effect of the 1982 amendments is to reinforce the 

argument that judicial elections are not covered. They accomplish this 

through the use of the word "representatives" in Section 2(b). While this 

usage is not determinative of the reach of Section 2(a)'s prohibition, it does 

suggest that in 1982 Congress was far from having judges in mind when it 

was pondering what to do with Section 2 in reaction to Bolden. In another 

context, this Court has indicated that it does not consider elected judges to 

-JO-  



   

be representatives. See Hatten v. Rains, 854 F.2d 687, 696 (5th Cir. 1988), 

cert. denied, 109 S.Ct. 3156 (1989) (even elected judges "do not serve a 

primarily representative function"). There is no reason to expect that 

Congress has a different view. It would have the opportunity to demonstrate 

that it does differ were this Court to apply the heightened clear statement 

rule to Section 2 in this case. 

Application of the heightened clear statement rule to hold that 

Section 2 does not cover judicial elections would not leave minority voters 

unprotected in the exercise of their {franchise in judicial elections. First, 

and most obviously, Congress could react to the ruling just as swiftly as it did 

to Bolden. Congress then would have the opportunity to debate this 

heretofore undebated issue in the light of clear legal rules. Second, both the 

Constitution and the Voting Rights Act would continue to offer significant 

protections to minority voters in judicial elections. The Fourteenth and 

Fifteenth Amendments still would prohibit intentional acts of official racial 

discrimination against those seeking to exercise their franchise in judicial 

elections. See, e.g., Voter Information Project, Inc. v. City of Baton Rouge, 

612 F.2d 208 (5th Cir. 1980) (constitutional vote dilution challenge to 

judicial elections). The Voting Rights Act itself, as canvassed and found 

constitutionally valid in South Carolina v. Katzenbach, 383 U.S. 301 (1966), 

contains major protections for those seeking to exercise their franchise 

when electing judges. These protections include ballot access, inhibitions 

on the reinstitution of a poll tax, and, as held in Haith, preclearance of 

various electoral changes, including those affecting judicial elections such as 

the location of polling places. 

Until Congress amended the Voting Rights Act in 1982 in response to 

Bolden, it could remain indifferent to the reach of Section 2. Whether the 

11: 

 



   

act covered judicial elections was irrelevant because Section 2's coverage 

was coextensive with the Constitution, Bolden, 446 U.S. at 60-61. The 

coverage question matters now because its resolution determines whether 

the result or the intent standard will be used to measure the facts. A 

holding here that Section 2 covers judicial elections would disregard the 

delicacy and heightened awareness which our federal system demands of 

Congress when it intrudes into state judicial systems. Congress was simply 

indifferent in 1965 to whether Section 2 covered judicial elections; thus, it 

did not have to act with either delicacy or awareness. And it did not. 

Congress did not advert to the matter at all then, and it never has. 

Congressional inadvertence should not be permitted to radically and 

irretrievably change a century-old state judicial system. The law requires 

the precise opposite. It requires conscious Congressional choice. 

2 

STATE DISTRICT JUDGES HOLD SINGLE-MEMBER OFFICES, AND 
ELECTING THEM COUNTYWIDE IS NOT A DILUTIVE ELECTORAL 
PRACTICE COVERED BY SECTION 2 OF THE VOTING RIGHTS ACT 

The plaintiffs and plaintiff-intervenors brought and tried this case as a 

challenge to the at-large, countywide system of electing state district judges 

in nine urban counties in Texas. They did not target other facets of the 

election process such as the majority vote requirement in the party 

primaries, anti single-shot voting requirements, or numbered posts. They 

offered evidence about these latter electoral devices to enhance (through 

what have come to be called the Zimmer factors) their legal claim about the 

dilutive effect of at-large judicial elections. Therefore, the question is not 

whether Section 2 applies to elections to single-member offices; it is 

-12- 

 



   

whether a Section 2 vote dilution claim can be lodged against a single- 

member office, which in this case is the office of a state trial judge. 

The modern concept of vote dilution originated with the landmark 

case of Reynolds v. Sims, 377 U.S. 533 (1964) ("Reynolds"), in which the 

Supreme Court sustained a constitutional attack on the apportionment of the 

Alabama legislature. The relationship between the concept of vote dilution 

and collective decisionmaking lies at the core of the opinion's rationale: 

[I]t would seem reasonable that a majority of the 
people . . . could elect a majority of . . . legislators. . . . 
. Since legislatures are responsible for enacting laws 
by which all citizens are to be governed, they should 
be bodies which are collectively responsible to the 
popular will. 

377 U.S. at 565 (emphasis added). Sympathetic commentators have used 

Reynolds as a reference point to argue that courts assessing vote dilution 

claims should look beyond the casting of ballots to the decisionmaking 

function of those elected by the voters. See Karlan, Maps and Misreadings: 

The Role of Geographic Compactness in Racial Vote Dilution Litigation, 24 

HARv. C.R.-C.L. L. REV. 173, 180 (1989) ("Maps and Misreadings"). 

The State Officials urge the same focus on the decisionmaking 

function of the official whose election is targeted in a vote dilution lawsuit. 

That is, vote dilution analysis must take into account the relationship 

between the voters and the purpose for which they elect their 

representatives. When those representatives engage in solo decisionmaking 

instead of collegial decisionmaking, the concept of vote dilution is 

inapplicable. 

The paradigmatic vote dilution remedy under the first Gingles 

threshold factor is single-member districts. If it is apparent at the liability 

stage of a vote dilution case that imposition of this paradigmatic remedy will 

-13- 

 



    
alter the basic nature of the elected office, then no vote dilution claim can 

be made out. 

Single-member districts do not alter the basic nature of collective 

decisionmaking bodies. At the end of the decisionmaking process, every 

voter of the community will have participated through his or her 

representative. In this way in a representative democracy, each voter's vote 

counts each time a decision is made. Minority voters who otherwise might 

be effectively excluded from the entire process because of the submergence 

of their vote by a bloc of Anglo majority voters have their voice heard in each 

decision. 

The same is not true with regard to elected solo decisionmakers, even 

if more than one of them is elected from the same geographic area. The 

imposition of a single-member districting scheme on an electoral system in 

which more than one solo decisionmaker is elected from the same political 

unit to perform the same type of function results in a balkanization of the 

political unit. The decisionmaking becomes fragmented along the same 

lines as the districts into which the unit is carved. It is no longer the 

community's collective decisionmaking. At the end of the decisionmaking 

process, only a portion of the voters in the community will have participated 

through their elected representative. 

This result is antithetical to the initial policy choice made by the State 

about the basic unit that is to form the community. The Voting Rights Act 

itself recognizes that the State retains the authority to establish the basic 

electoral framework and the types and configuration of the communities 

whose voices are to be heard in the process of representative democracy. 

Section 2's prohibitions reach states and their "political subdivision[s]," and 

the act specifies a definition of "political subdivision,” 42 U.S.C. § 

214- 

 



   

19731Uc)(2) (1982). Gingles emphasizes that vote dilution inquiries are 

"district specific." 478 U.S. at 59 n.28. The act's recognition of the state's 

essential authority to configure its political subdivisions into communities of 

representative government is consistent with Reynolds, which stated: 

Political subdivisions of States -- counties, cities, or 
whatever -- . . . have been traditionally regarded as 
subordinate governmental instrumentalities created 
by the State to assist in the carrying out of state 
governmental functions. As stated by the Court in 
Hunter v. City of Pittsburgh, 207 U.S. 161, 178, ... . 
these governmental units are "created as convenient 
agencies for exercising such of the governmental 
powers of the state as may be entrusted to them," 
and the "number, nature, and duration of the powers 
conferred upon [them] . . . and the territory over 
which they shall be exercised rests in the absolute 
discretion of the state." 

377 U.S. at 575. 

Texas, for example, has chosen the county as the basic unit for 

electing district judges, as well as county commissioners. Electing county 

commissioners from single-member districts does not destroy the integrity 

of the unit because the community living within the unit remains intact, so 

to speak, with each decision by the commissioners court. Electing state 

district judges from single-member districts would destroy the integrity of 

the unit because each independently made decision by the judge would 

exclude from ultimate participation all the voters in the districts not 

represented by the judge. 

These principles are the underpinning for the holding in Butts v. City 

of New York, 779 F.2d 141 (2d Cir. 1985), cert. denied, 478 U.S. 1021 

(1986), that single-member offices are not subject to vote dilution claims 

under Section 2. They form the basis for the conclusion here that the 

-15- 

 



plaintiffs cannot make out a vote dilution claim against the election of 

district judges in the targeted counties. 

The force of these principles is not blunted by an argument that other 

remedies, such as limited voting mechanisms, are available which do not 

result in the splintering of the basic unit of representation and governance. 

The Gingles requirement that the minority plaintiffs establish at the 

threshold that they are geographically compact enough to form a single- 

member district makes no sense unless single-member districts must be 

the remedy paradigm at the liability stage of the case. Only by ignoring 

Gingles and precedents applying it, e.g., Overton v. City of Austin, 871 F.2d 

529 (5th Cir. 1989), can the Court assign this issue to the remedy phase of 

the case, instead of requiring its confrontation in the liability phase.® 

The district court correctly found that district judges in Texas are solo 

decisionmakers performing traditional judicial functions. They engage in 

collegial decisionmaking only for administrative functions incidental to the 

performance of their judicial functions. Testimony of Chief Justice Phillips, 

Tr. 5-81. The existence of a shared, or common, docket, see TEX. R. CIV. P. 

330, does not convert Texas district judges into collegial decisionmakers. 

In any given case, only one judge at a time decides any given issue, and he or 

she decides it alone, independently of the decision by another judge on 

another issue in the same case. 

  

6 Some scholarly criticism has been leveled at Gingles’ imposition of the geographic 
compactness requirement as a threshold vote dilution issue. Significantly for the single- 
member office issue here, a central element of this criticism is its emphasis on the importance 
of minority representation in collegial decisionmaking bodies. Maps and Misreadings, for 
example, stresses what it terms the "qualitative" aspect of vote dilution which should take into 
account the beneficial concept of "civic inclusion.” Interestingly, its depiction of the values of 
civic inclusion make sense only in collegial decisionmaking settings. See, e.g., Maps and 
Misreadings, at 216-17 (discussing the importance of ongoing relationships among members of 
a representative body and of legislative coalition building). 

$16~  



    
CONCLUSION 
  

For each of the foregoing reasons, the Court should reverse the 

district court and render judgment for the State Officials. 

Respectfully submitted, 

JIM MATTOX 
Attorney General of Texas 

MARY F. KELLER 
First Assistant Attorney General 

btn dude 
RENEA HICKS 
Special Assistant Attorney General 

    

JAVIER GUAJARDO 
Assistant Attorney General 

P. O. Box 12548, Capitol Station 
Austin, Texas 78711-2548 

(512) 463-2085 

3x7: 

 



    
CERTIFICATE OF SERVICE 

I certify that on this 5th day of June, 1990, I sent two copies of the 
foregoing document by first class United States mail, postage prepaid, to 
each of the following: William L. Garrett, Garrett, Thompson & Chang, 8300 
Douglas, Suite 800, Dallas, Texas 75225; Rolando Rios, Southwest Voter 
Registration & Education Project, 201 N. St. Mary's, Suite 521, San Antonio, 
Texas 78205; Sherrilyn A. Ifill, NAACP Legal Defense and Educational Fund, 
Inc., 99 Hudson Street, 16th Floor, New York, New York 10013; Gabrielle K. 
McDonald, 301 Congress Avenue, Suite 2050, Austin, Texas 78701; Edward 
B. Cloutman, III, Mullinax, Wells, Baab & Cloutman, P.C., 3301 Elm Street, 
Dallas, Texas 75226-1637; J. Eugene Clements, Porter & Clements, 700 
Louisiana, Suite 3500, Houston, Texas 77002-2730; Robert H. Mow, Jr., 
Hughes & Luce, 2800 Momentum Place, 1717 Main Street, Dallas, Texas 
75201; John L. Hill, Jr., Liddell, Sapp, Zivley, Hill & LaBoon, 3300 Texas 
Commerce Tower, Houston, Texas 77002; Walter L. Irvin, 5787 South 
Hampton Road, Suite 210, Lock Box 122, Dallas, Texas 75232-2255; James 
George, Jr., Graves, Dougherty, Hearon & Moody, NCNB Tower, Suite 3500, 
515 Congress Ave., 6th & Congress, Austin, Texas 78711; Paul Strohl, 100 
Founders Square, 900 Jackson Street, Dallas, Texas 75202; Susan 
Finkelstein, Texas Rural Legal Aid, Inc., 201 N. St. Mary's, Suite 600, San 
Antonio, Texas 78205; and Seagal V. Wheatley, Oppenheimer, Rosenberg, 
Kelleher & Wheatley, Inc., 711 Navarro, Sixth Floor, San Antonio, Texas 
78205. 

~~ Ferca-H cho 
  

-18-