Judge Wood's Supplemental En Banc Reply Brief

    i]     
PorTER & CLEMENTS 

A REGISTERED LIMITED LIABILITY PARTNERSHIP 

INCLUDING PROFESSIONAL CORPORATIONS 

ATTORNEYS AT LAW 

700 LOUISIANA, SUITE 3500 

EVELYN V. KEYES HOUSTON, TEXAS 77002-2730 
(713) 226-0620 

MAILING ADDRESS:   

P.O. BOX 4744 

HOUSTON, TX 77210-4744 
  

TELECOPIER (713) 228-1331 

TELEPHONE (713) 226-0600 

April 23, 1993 

Mr. Richard Windhorst, Clerk VIA FEDERAL EXPRESS 

United States Court of Appeals 
for the Fifth Circuit 2424671734 
100 U.S. Court of Appeals Courthouse 

600 Camp Street 

New Orleans, Louisiana 70130 

Re: No. 90-8014 and No. 90-9003; League of United Latin American Citizens, 

Council No. 4434, et al., Plaintiffs-Respondents, v. William P. Clements, 

Governor of the State of Texas, et al., Defendants, Judge Sharolyn Wood, etc. , 

Defendant-Appellant; In the United States Court of Appeals for the Fifth Circuit 

Dear Mr. Windhorst: 

Enclosed are the original and twenty copies of Defendant/Appellant Harris County 

District Judge Sharolyn Wood’s En Banc Reply Brief. 

Please verify filing of this document by placing your file mark in the margin of the extra 

copy provided herewith and return to me for my records. 

All parties are being served with copies of this document by first class United States 

mail, postage prepaid. 

Very truly yours, 
/ 

< J dry 

(50m \/. Clty 

Evelyn V. Keyes 

EVK:taw 

enclosures 

 



  

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

NO. 90-8014 and 

NO. 90-9003 

  

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, 

COUNCIL NO. 4434, et al., 
Plaintiffs-Respondents, 

versus 

WILLIAM P. CLEMENTS, GOVERNOR OF THE STATE 

OF TEXAS, et al., 

Defendants, 

JUDGE SHAROLYN WOOD, ETC., 
Defendant-Appellant. 

  

Appeal from the United States District Court 

for the Western District of Texas 

Midland Division 

  

JUDGE WOOD’S SUPPLEMENTAL 

EN BANC REPLY BRIEF 

  

PORTER & CLEMENTS, L.L.P. 

J. Eugene Clements 

Evelyn V. Keyes 

700 Louisiana, Ste. 3500 

Houston, Texas 77002-2730 

(713) 226-0600 

ATTORNEYS FOR APPELLANT/INTERVENOR/ 

DEFENDANT JUDGE WOOD 

 



  

TABLE OF CONTENTS 
  

Page 

TABLE OF AUTHORITIES. & .v sic vies 39% 0 pale fe wis Wein jo win win alas oie i 

INTRODUCTION . . ie vies bt viens gin vans vw stash a ete a aie 1 

I. VOTE DILUTION PLAINTIFFS MUST PROVE THAT THE RIGHTS OF A 

PROTECTED CLASS WERE DENIED OR ABRIDGED "ON ACCOUNT OF 

RACE OR COLOR"; A STATISTICAL SHOWING OF ELECTORAL DEFEAT 

IS NOT ENOUGH. =, . he. 2h. Ao, Pd win» ales ieee n Wig 0a a 0 as 2 

A. Minority Voters Have No Statutorily Protected Right to 

Proportional Representation by Minority Democrats on the Bench; 

They Have Only a Protected Right to Equal Access to the Electoral 

DIOCESES. cine tin ei a a acints mie vin in» Suiutete iv ete 5 aes site eel enw 2 

B. The Plaintiffs’ Standard of Proof of Vote Dilution Is Fatally Flawed. . . . . 4 

C. Multivariate Statistical Analysis Shows that Partisan Politics, 

Not Discrimination, Explains the Results of Texas Judicial Elections. ... 9 

II. PLAINTIFFS MISINTERPRET THE WEIGHT OF TEXAS’ INTEREST IN ITS 

COUNTY-WIDE JUDICIAL ELECTION SYSTEM... .... . «ccc vin 11 

A. All Texans Have a Compelling Interest in Maintaining County-Wide 

Judicial Election DISIriCIS. .... .ivie.x «+s ou 5 = Viele simiwin + dial abn s vie 11 

B. The Rights of Minority Voters Under Section 2 Extend Only As Far As 

the iCOoNSHIVHON Permits. . =" ii". Ful oe WW We ail 0M 12 

C. The Use of § 2 To Force the Dismantling and Restructuring ot Whole 

Judicial Election Systems to Enhance Minority Voting Rights is 

UNCOnSHIUHONAL. So, ie aril ee als eleven allie nov d ie wie, win dihiwiadh aia a 14 

D. Constitutional Rights Trump The Statutory Rights of Minority Voters 

bh 9 Be TO TRE RL VE GE se ERT DT 16 

[[I. THE PLAINTIFFS DID NOT PROVE VOTE DILUTION IN HARRIS 

COUNTY iv oh 0, pila ie ale wn vl a ea Tie 18 

CONCLUSION “of iil an a ys hn ae A i BR ed i ws 19 

CERTIFICATE OF SERVICE. . . . 0. «i. inden cs SB ad sve aie a wa 21 

 



  

TABLE OF AUTHORITIES 
  

Cases Page 

Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 105 S. Ct. 3142 (1985) ......... 13 

Bernal 'v. Fainer, 4671.8. 216, 104°S. Ct. 2312. (1984). ... oct « «vv vin vivin win» 4's 13 

Boyd v:: Thayer, 143 U.8.7135, 12S. Ct. 375 (1892)... vis sie vd vide nso ts dine 12 

City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490 (1980) ................ 14 

City of Richmond v. J.A. Croson Co., 109S8.Ct. 705(1989) ............. co... 9 

Duncaniv. McCall, 1391.8. 449, 11 S.Ct. S373 (1801)... .'. . iv iiinin viv Py anima 13 

EE.O.C.v. Wyoming, 460 1.8. 226, 1038S. Ct. 1054 (1983) . .w. us. . vuin’s' vn us 13 

Gregory v. Ashcrofi, 111.8. CL 2393 (1991), 1. vc vv cv La ine svi alvin ania 12-15, 18 

Houston Lawyer’s Ass’n v. Attorney General of Texas, 111 S.Ct. 2376 (1991) . ...... 18 

Kirksey v. Bd. of Sup’rs Hinds County Miss., 554 F.2d 138 

ob Sh | re LOR WE GS eR CSE Se GENE i SE ME 15 

League of United Latin American Citizens, Council, No. 4434 v. 
William P. Clements, 914 F.2d 620 (Sth Cir. 1990) . . cv cin v vie cen gn vs www» a 16 

Oregon. v. Mitchell, 400 U.S. 112, 91.8..Ct.266'(1970) . .... iv one wilh avs 14 

Pennhurst St. Sch. & Hosp. v. Halderman, 451 U.S. 1, 101 S. Ct. 1531 (1981) . . . . 15, 16 

Reynoids v. Sims, 377 U.S. 533,84 S.Ct. 1362 (1964) ... ... . «oc ...% uve svn vu 17 

Rogers v. Lodge, 458 U.S.:613,102 S.Ct. 3272 (1982) ..... «vis vb sn sein ni vs va 14 

Thornburg 'v. Gingles, 478 1.8.:30, 91 S.Ct. 2732 (1986). .' .'... «vais oT 0 + via 4, 6-10 

Wards Cove Packing Co. w. Atonio, 109 S.Ct. 2115 (1989)... . iii ie wae e WAh 9 

Whitcomb v. Chavis, 403 U.S, 755,91 S.Ct.:1338 (1971) =. . . . . . hc viv vi un 4, 7-10 

i 

 



  

White v. Regester, 412 U.S. 744, 93 S.Ct. 2332, 

BF LEA 2d B14 (0783) 0. oi. si ia ai ia beie eve Ban ta Ae x eee owe 4 

Zimmer v. McKeithen, 485 F.2d 1297 (Sth Cir. 1973) . . . ccc cv vv via en swe We suns 3 

Constitution 

1982 U.S. CODE'CONG.-& ADMIN. NBWS  . , . . vids vo venir wma aaininn sings ais 16 

U.S. CONST. AMEN. Xie it, i, id a oie whe writ wbniarn ins oni vB o 5 0iaialsiy oie 13 

U.S. CONST. Art. TV 8/4 th i. he vies + vain inating sins He mith os via aise wigan oi 13 

Statutes 

BAU. SIC. SAS i ee. i a ee a ee a whe Te eee 3.4 

Miscellaneous 

S. Rep. 97-417, reprinted in 1982 U.S. CONG. CODE & ADMIN. NEWS... ood, 5.6,'16 

il 

 



  

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

NO. 90-8014 and 

NO. 90-9003 

  

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, 

COUNCIL NO. 4434, et al., 
Plaintiffs-Respondents, 

Versus 

WILLIAM P. CLEMENTS, GOVERNOR OF THE STATE 

OF TEXAS, et al., 

Defendants, 

JUDGE SHAROLYN WOOD, ETC., 
Defendant-Appellant. 

  

Appeal from the United States District Court 

for the Western District of Texas 

Midland Division 

  

JUDGE WOOD’S SUPPLEMENTAL 

EN BANC REPLY BRIEF 

  

TO THE HONORABLE COURT OF APPEALS: 

Defendant-Intervenor/Appellant Harris County District Judge Sharolyn Wood ("Judge 

Wood") files this Supplemental En Banc Reply Brief to show the Court the following: 

INTRODUCTION 
  

Judge Wood has set out her arguments in her briefs previously filed with the en banc 

Court. For that reason she did not file a separate en banc brief. Similarly, most of the 

Plaintiffs/ Appellees have filed only a cursory brief on the principal issues for en banc review, 

 



  

incorporating their previous briefs by reference and introducing new arguments only with respect 

to the January 27, 1993, panel opinion. The Houston Lawyers’ Association and the United 

States as Amicus Curiae for the Plaintiffs/ Appellees have, however, filed new comprehensive 

briefs on the issues ("HLA Brief" and "Amicus Brief"). Therefore, Judge Wood will respond 

primarily to the arguments made by the Houston Lawyers’ Association and the United States in 

this Supplemental En Banc Reply Brief. 

I. VOTE DILUTION PLAINTIFFS MUST PROVE THAT THE RIGHTS OF A 

PROTECTED CLASS WERE DENIED OR ABRIDGED "ON ACCOUNT OF 

RACE OR COLOR"; A STATISTICAL SHOWING OF ELECTORAL DEFEAT IS 

NOT ENOUGH. 

A. Minority Voters Have No Statutorily Protected Right to Proportional 

Representation by Minority Democrats on the Bench; They Have Only a 

Protected Right to Equal Access to the Electoral Process. 

The central question on remand is whether minority voters have a constitutionally or 

statutorily protected interest in electing minority Democrats to the state district bench. Plaintiffs 

insist (1) that no explanation of the failure of a minority group to achieve proportional 

representation, particularly no showing of partisan voting patterns, is relevant or even permitted 

in proving § 2 violations, HLA Brief at 8 -11, Amicus Brief at 6 - 16; (2) that proof of racial 

politics or discriminatory motivation of white voters was expressly eliminated as part of the 

proof of a § 2 violation by the 1982 amendments to the Voting Rights Act, HLA Brief at 4 -7, 

Amicus Brief at 2.6; and, consequently, (3), all that is relevant to prove vote dilution is 

statistical evidence of minority losses in those races in which minority voters support minority 

candidates (translation: only statistical proof of losses by minority Democrats is relevant to show 

vote dilution, since minorities only support Democrats). The result is a claim that § 2 entitles 

i; 
&L 

 



black and hispanic Democrats to safe district judge benches in proportion to the proportion of 

such minorities in the total population. 

The Plaintiffs will permit, almost as an afterthought, proof of the Zimmer factors, i.e., 

proof of those factors listed by this Court in Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 

1973), as indicative of discriminatory voting patterns. Most of those factors, such as a history 

of past racial discrimination and slating of white candidates only, today have mainly historical 

value. In this case the Plaintiffs put on virtually no proof of any of the Zimmer factors; and the 

district court simply made a judicial determination that they existed. Judge Wood addressed these 

matters in her Brief For Defendant/Intervenor/ Appellant Harris County District Judge Sharolyn 

Wood at 17. 

Section 2, as amended in 1982, states very clearly that minority interest groups have no 

entitlement to safe seats for minority Democrats or to proportional representation. Instead, § 2 

requires proof that the voting rights of a protected class are denied or abridged "on account of 

race or color." 42 U.S.C. § 1973.! To establish a violation, the plaintiffs must show "that the 

  

I As amended in 1982, § 2 states, 

(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 abridgment of the right of any citizen of the 

United States to vote on account of race or color.... 

(b) A violation of subsection (a) of this section is established if, based on the 

totality of circumstances, it is shown that rhe 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.... Provided, That nothing in this section establishes a right ro have 

members of a protected class elected in numbers equal to their proportion in the 

population. 

42 U.S.C.A. § 1973 (emphasis added).  



  

political processes leading to nomination or election ... are not equally open to participation by 

members a protected class.” Id. 

The Supreme Court held in Whitcomb v. Chavis, 403 U.S. 755, 91 S.Ct. 1858 (1971), 

whose ruling the 1982 amendments codify,’ that when there is no evidence that a protected 

minority class is prevented from being allowed to register or vote, to choose the political party 

it desires to support, to participate in the party’s affairs or to be represented when candidates 

are chosen (i.e., when there is no evidence that the processes leading to nomination or election 

are not equally open to minorities on account of race of color) there is no evidence of vote 

dilution. 403 U.S. at 149-53, 91 S.Ct. at 1872-74. 

The Plaintiffs in this case are asking this Court to mandate for judicial races exactly what 

the Supreme Court rejected for legislative races in Whitcomb. Whitcomb is thoroughly analyzed 

in Judge Higginbotham’s dissent to the January 27, 1993, panel opinion in this case, at 7 - 21. 

Judge Wood commends that analysis to the Court’s attention. 

B. The Plaintiffs’ Standard of Proof of Vote Dilution Is Fatally Flawed. 

The Plaintiffs claim that when Congress enacted the 1982 amendments to the Voting 

Rights Act, "it deliberately dispensed with any requirement of proving racially discriminatory 

intent." Amicus Brief at 6; HLA Brief at 12. This claim is misleading. 

  

2 Justice O’Connor stated in her concurring opinion in Thornburg v. Gingles, 478 U.S. 30, 

91 S.Ct. 2752, 2783 (1986), the leading case in interpreting § 2 as amended, 

"Amended § 2 is intended to codify the ’results’ test employed in Whitcomb v. 

Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971), and White v. 

Regester, 412 U.S. 744, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973)." 

106 S.Ct. at 2733. 

 



  

In amending § 2, Congress relieved plaintiffs of the burden of proving that a statute was 

promulgated or maintained with a discriminatory intent. It did not relieve plaintiffs of proving 

that racial politics produced discriminatory election results. The Senate Report accompanying 

the 1982 amendments specifically stated that it was eliminating "a factual examination of the 

intent motivating those who designed the electoral districts at issue." S. Rep. 97-417 at 22, 

reprinted in 1982 U.S. CONG. CODE & ADMIN. NEWs at 200. Either a court could still assess 

the intent in passing a statute, or it could assess "the impact of the challenged structure or 

practice on the basis of objective factors, rather than making a determination about the 

motivations which lay behind its adoption or maintenance." S. Rep. 97-417 at 27, reprinted in 

1982 U.S. CONG. CODE & ADMIN. NEWS at 205. This does not mean, however, that the court 

should not inquire into racial politics. To the contrary. 

Congress made it clear that the key to proof of a claim under the results test is a showing 

that "racial politics play an excessive role in the political process" or that "racial politics . . 

dominate the political process." S. Rep. 97-417 at 34, reprinted in 1982 U.S. CONG. CODE & 

ADMIN. NEWS at 211. Senate Report 97-417 expressly cites voters’ "racial politics” (which the 

Plaintiffs declare need not be proved) as the precise wrong the amendments were designed to 

remedy. Senate Report 97-417 states, 

Unfortunately... there still are some communities in our Nation where racial politics do 

dominate the electoral process. In the context of such racial bloc voting and other 

factors, a particular election method can deny minority voters equal opportunity to 

participate meaningfully in elections.... 

The results test makes no assumptions one way or the other about the role of 

racial political considerations in a particular community. If plaintiffs assert that they are 

denied fair access to the political process, in part, because of the racial bloc voting 

context within which the challenged election system works. they would have to prove it. 

 



  

S.R. 97-417 at 33-34, reprinted in U.S. CODE CONG. & ADMIN. NEWS at 211-212 (emphasis 

added). This inquiry into either discriminatory intent or the dominance of the electoral process 

by racial politics remains a central inquiry in every vote dilution case. The very purpose of 

proving the Zimmer factors, for example, is to prove that actual, local factors discriminate 

against minorities and prevent them from participating equally in the political process and 

electing candidates of their choice. See Gingles, 106 S.Ct. at 2781. 

The Supreme Court in Gingles affirmed the view taken by Congress. The Plaintiffs 

simply misinterpret Gingles when they claim, "Eight members of the Court held in Gingles that 

evidence which merely seeks to provide a non-racial explanation for racial bloc voting does not 

rebut proof that the electoral system results in the diminution of minority voting strength." 

Amicus Brief at 3. In fact, only four members of the Court, including Justice Brennan, (not 

eight), held that Section 2 plaintiffs could dispense with proving the actual cause of electoral 

outcomes. The syllabus to the Gingles opinion eloquently summarizes: 

Justice BRENNAN, joined by Justice MARSHALL, Justice BLACKMUN, and 

Justice STEVENS, concluded in Part III-C that for purposes of § 2, the legal concept of 

racially polarized voting, as it relates to claims of vote dilution - that is, when it 1s used 

to prove that the minority group is politically cohesive and that white voters will usually 

be able to defeat the minority’s preferred candidates - refers only to the existence of a 

correlation between the race of voters and the selection of certain candidates. Plaintiffs 

need not prove causation or intent in order to prove a prima facie case of racial bloc 

voting, and defendants may not rebut that case with evidence of causation or intent. 

453 U.S. at 33, 106 S.Ct. at 2757. 

Justice WHITE opined in a separate opinion, "I disagree with Part III-C of Justice 

BRENNAN’s opinion." 478 U.S. at 84, 106 S.Ct at 2783. To point out the fallacy of Justice 

Brennan’s measure of vote dilution, Justice White posited the example of an eight-member multi- 

member district that was sixty percent white and forty percent black and in which six white and 

 



  

two black Democrats were running against six white and two black Republicans. "Under Justice 

Brennan's test," wrote Justice White, "there would be polarized voting and a likely § 2 violation 

if all the Republicans, including the two blacks, are elected, and eighty percent of the blacks in 

the predominantly black areas vote Democratic.” Id. Justice White concluded: 

This is interest-group Dollies rather than a rule hedging against discrimination. 

I doubt this is what Congress had in mind in amending § 2 as it did, and it seems 

quite at odds with the discussion in Whitcomb v. Chavis, 463 U.S. 124, 149-160, 

92 S.Ct. 1858, 1872-1878 (1971). 

106 S.Ct. at 2784 (emphasis added). Yet the Plaintiffs are claiming exactly what Whitcomb and 

Justice White decried, namely a right to safe districts for minority Democrats. This is protection 

of partisan political interests, as Justice White saw, not protection of minority voting rights. 

Similarly, the Plaintiffs misleadingly claim that Justice O’Connor, writing for herself and 

three other Justices, would have held that proof of the actual cause of voting results does not 

rebut proof of racial bloc voting. HLA Brief at 9, Amicus Brief at 8-9. Justice O'CONNOR, 

writing for herself, Chief Justice BURGER, and Justices POWELL and REHNQUIST, actually 

stated: 

Insofar as statistical evidence of divergent racial voting patterns is admitted solely to 

establish that the minority group is politically cohesive and to assess its prospects for 

electoral success, I agree that defendants cannot rebut this showing by offering evidence 

that the divergent racial voting patterns may be explained in part by causes other than 

race, such as an underlying divergence in the interests of minority and white voters. I 

do not agree, however, that such evidence can never affect the overall vote dilution 

inquiry. Evidence that a candidate preferred by the minority group in a particular 

election was rejected by white voters for reasons other than those which made that 

candidate the preferred choice of the minority group would seem clearly relevant in 

answering the question whether bloc voting by white voters will consistently defeat 

minority candidates. ... 

... The overall vote dilution inquiry neither requires nor permits an arbitrary rule 

against consideration of all evidence concerning voting preferences other than statistical 

evidence of racial voting patterns. Such a rule would give no effect whatever to the 

 



  

' 

Senate Report’s repeated emphasis on "intensive racial politics,” on "racial political 

consideration," and on whether "racial politics ... dominate the electoral process" as one 

aspect of "the racial bloc voting" that Congress deemed relevant to showing a § 2 

violation. Id. at 33-34. 

478 U.S. at 100-01; 106 S.Ct. at 2792. Justice O’Connor further stated, 

I would reject the Court’s test for vote dilution. . 

In enacting § 2, Congress codified the "results" test this Court had 

employed, as an interpretation of the Fourteenth Amendment, in White and 

Whitcomb. The factors developed by the Fifth Circuit and relied on by the Senate 

Report simply fill in the contours of the "results" test as described in those 

decisions and do not purport to redefine or alter the ultimate showing of 

discriminatory effect required by Whitcomb and White. In my view, therefore, 

it is to Whitcomb and White that we should look in the first instance in 

determining how great an impairment of minority voting strength is required to 

establish vote dilution in violation of § 2. 

The "results" test as reflected in Whitcomb and White requires an inquiry 

into the extent of the minority group’s opportunities to participate in the political 

processes. See White, 412 U.S., at 766, 93 S.Ct., at 2339-40. While electoral 

success is a central part of the vote dilution inquiry, White held that to prove vote 

dilution, "it is not enough that the racial group allegedly discriminated against has 

not had legislative seats in proportion to its voting potential," id., at 765-766, 

93 S.Ct., at 2339-40, and Whitcomb flatly rejected the proposition that "any 

group with distinctive interests must be represented In legislative halls if it 1s 

numerous enough to command at least one seat and represents a majority living 

in an area sufficiently compact to constitute a single member district.” 403 U.S. 

at 156, 91 S.Ct., at 197. To the contrary, the results test as described in White 

requires plaintiffs to establish "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 int he political processes and to elect legislators of their choice." 

Gingles, 478 U.S. at 97-98, 106 S.Ct. at 2790-91. 

The citations set out above show that, contrary to the Plaintiffs’ claims, five Supreme 

Court Justices and the Senate Report to the 1982 amendments insisted that if § 2 plaintiffs cannot 

prove that a challenged electoral plan or device was enacted or maintained with discriminatory 

intent they must prove, in accordance with Whitcomb and White, that the political processes 

 



  

leading to nomination and election are not equally open to them on account of race. Such proof 

requires that plaintiffs prove real discrimination against minority voters. The Plaintiffs deny 

this. 

C. Multivariate Statistical Analysis Shows that Partisan Politics, Not 

Discrimination, Explains the Results of Texas Judicial Elections. 

Both the Gingles majority and Whitcomb require that § 2 plaintiffs prove that they were 

actually denied full participation in the electoral process and not just that minority candidates 

have failed to be elected in sufficient numbers to reflect the percentage of minorities in the total 

population.’ This proof requires a "searching, practical evaluation of the 'past and present 

reality’" to determine "whether the political process is equally open to minorities.” Gingles, 106 

S.Ct..at 2731. 

The United States argues, incorrectly, that, since virtually all blacks are Democrats, the 

analysis of political races in terms of racial voting and in terms of partisan voting comes down 

to the same thing. Amicus Brief at 9-10. This argument is wrong and should not sway the 

  

3 Judge Wood argued in her earlier briefs that black or Hispanic electoral success in Texas 

judicial elections should not be measured against the percentage of blacks or Hispanics in the 

total voting age population of the county but against the pool of candidates constitutionally 

qualified to run for judicial office--a view supported by Wards Cove Packing Co. v. Atonio, 109 

S.Ct. 2115 (1989) and City of Richmond v. J.A. Croson Co., 109 S.Ct. 705 (1989) (analogous 

Title VII and § 1983 cases). Under this measure of electoral success, blacks (who hold 5.1% 

of the district judge benches in Harris County but represent only 3.8% of the attorneys 

constitutionally qualified to run for district judge) are not underrepresented in the judiciary. 

Judge Wood also showed that relatively few black candidates have run for judicial office in 

Harris County, that there is no evidence that they have failed to run because of discrimination, 

and that they have, in fact, won 32% of all the races in which they have run. Yet under the 

Plaintiffs’ measure of electoral success, racially discriminatory white bloc voting is the only 

permissible explanation for any shortfall of black district judges from proportional representation 

relative to total black voting age population. Under such a standard of "proof" of vote dilution 

the Plaintiffs cannot fail to make their case, regardless of whether racial discrimination exists 

or not. 

 



  

Court. In fact, multivariate regression analysis can and does explain whether election results 

evidence discrimination or mere partisan voting. 

Since Texas judicial elections are partisan, the State’s witness, Dr. Delbert Taebel, ran 

a multivariate ecological regression analysis, factoring in party affiliation as well as race. He 

testified that the purpose of a functional analysis is to determine how the political process works 

and that no one can evaluate partisan elections using a functional approach without taking parties 

into account because party affiliation overwhelms all other factors in describing how partisan 

elections work. TR. 5-161-165; TR. 5-233. 

Dr. Taebel testified that there are two ways to determine whether partisanship or race 

best describes actual voting patterns. TR. 5-185-186. If the party vote remains similar from 

race to race in a general election, there is a high degree of partisan voting. TR. 5-186. Also, 

if there is a shift in white support of a minority candidate between the primary election and the 

general election, the shift indicates dilution by partisan voting. TR. 5-186-187. The first of 

these tests shows that in Harris County, for example, party voting by whites, blacks, and 

hispanics is exactly or almost exactly the same, regardless of the race of the candidates. TR. 

5-227. Also. since black Democrats and white Democrats vote substantially the same in Harris 

County, TR. 5-268, it follows under the second of these tests that any dilution of the vote for 

a black Democrat between the primary and the general election is due to dilution by Republican 

votes, not white votes. 

Dr. Taebel’s testimony was unrebutted since the Plaintiffs refused to analyze the actual 

local factors that explain judicial elections in the targeted Texas counties. As Gingles and 

Whitcomb both attest, however, such proof - especially in the absence of any proof of 

10 

 



  

discrimination but a statistical showing of electoral defeats of minority Democrats’ - defeats a 

claim that minorities are denied access to the political process on account of color or race. 

II. PLAINTIFFS MISINTERPRET THE WEIGHT OF TEXAS’ INTEREST IN ITS 

COUNTY-WIDE JUDICIAL ELECTION SYSTEM. 

A. All Texans Have a Compelling Interest in Maintaining County-Wide Judicial 

Election Districts. 

In her earlier appellate briefs, Judge Wood detailed the testimony at trial regarding 

Texas’ compelling state interests in creating and maintaining a county-wide judicial election 

system, interests which have nothing to do with denying minorities an equal opportunity to elect 

judges. See, e.g., Brief for Defendant/Intervenor/Appellant Harris County District Judge 

Sharolyn Wood at 5-6; Appellant Defendant-Intervenor Harris County District Judge Sharolyn 

Wood's Brief on Remand at 5-7; Reply Brief on Remand for Defendant/ Appellant Harris County 

district Judge Sharolyn Wood at 5-9. Essentially, the purpose of Texas’ county-wide judicial 

election system is to assure the fairness and impartiality of all judges, the responsiveness and 

accountability of all judges to all voters, and the efficient and orderly administration of justice. 

ld. 

All Texans, specifically including black voters, have a compelling interest in maintaining 

county-wide judicial election districts in which every judge is accountable to every voter and not 

just to a sliver of the population segregated by race. The Plaintiffs make no showing that this 

is not so. Instead, they ignore this compelling voter interest and would willingly strip minority 

voters, along with white voters, of the right to elect virtually all judges with primary jurisdiction 

  

4 In Harris County the Plaintiffs analyzed only contested black/Democrat versus 

white/Republican races. They did not analyze races by black Republicans, and they did not 

analyze races in which a hispanic was a candidate. 

11 

 



  

over them. They thus advance the interest of the small pool of minority candidates in being 

elected to the bench from small safe districts — which is not a protected interest — over the 

interests of the very voters they claim to represent. 

Ignoring the compelling interest of all Texans - specifically including minorities - in a 

county-wide judicial system in which every judge is personally accountable to every voter over 

whom he has plenary jurisdiction, the Plaintiffs glibly dismiss all state interests that interfere 

with a mandate to enforce proportional minority representation on the bench. Amicus Brief at 

19-27; HLA Brief at 23-25. It is, in fact, overwhelmingly evident from their briefs that the 

authors of those briefs either have no idea, or do not care, what state interests - meaning what 

citizens’ interests - they would sacrifice in the single-minded pursuit of proportional 

representation, a goal which is, in fact, expressly ruled out by the proviso to Section 2 itself. 

See 28 U.S.C. § 1973, cited supra at 3. 

B. The Rights of Minority Voters Under Section 2 Extend Only As Far As the 

Constitution Permits. 

The United States Supreme Court takes the right of all citizens of a state to 

structure their own judicial election system much more seriously than the Plaintiffs. As the 

Supreme Court has recognized, "’Each State has the power to prescribe the qualifications of its 

officers and the manner in which they shall be chosen.’" Gregory v. Ashcroft, 111 S. Ct. 2395, 

2400-01 (1991) (quoting Boyd v. Thayer, 143 U.S. 135, 161, 12 S. Ct. 375, 381-81 [1892)). 

This authority of the people to determine the qualifications of their most important government 

officials and the establishment and operation of their own government lies at "’the heart of 

representative government’ and is protected by the Tenth Amendment to the United States 

12 

 



  

Constitution and the Guaranty Clause.’ Id. at 2402 (quoting Bernal v. Fainter, 467 U.S. 216, 

221, 104 S. Ct. 2312, 2316 [1984)); see also Duncan v. McCall, 139 U.S. 449, 11 S. Ct. 573, 

577 (1891). This constitutionally mandated balance of power between the states and the federal 

government was adopted by the Framers of the Constitution to insure the protection of "’our 

fundamental liberties’" and to "reduce the risk of tyranny and abuse from either front." Id., at 

2400 (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242, 105 S. Ct. 3142, 3147 

[1985]); see also E.E.O.C. v. Wyoming, 460 U.S. 226, 103 S. Ct. 1054, 1060 (1983) ("the 

unique benefits of a federal system in which the states enjoy a separate and independent 

existence’ [must] not be lost through undue federal interference in certain core state functions"); 

Id., at 1072 (Burger, C.J., dissenting) (the Fourteenth Amendment does not give Congress a 

"blank check" to intrude into details of states’ governments at will). 

The United States distinguishes Gregory v. Ashcroft, 111 S.Ct. 2395 (1991), on the 

ground that, unlike the Age Discrimination Act, which the Supreme Court held in Gregory was 

overridden by the State’s interest in setting the qualifications of its judges, "the Voting Rights 

Act was premised upon the importance of vindicating voting rights even where that may require 

overriding state interest and prerogatives where necessary," meaning, of course, wherever 

necessary and at whatever Constitutional cost. Amicus Brief at 19-20. 

In fact, the Voting Rights Act has no power to trump the Constitution, especially in 

matters which by definition do not rise to the level of a constitutional violation - such as 

  

5 The Guaranty Clause provides that "[t]he United States shall guarantee to every State in 

this Union a Republican Form of Government," U.S. CONST. Art. IV § 4, while the Tenth 

Amendment provides that "[tJhe powers not delegated to the United States by the Constitution, 

nor prohibited to it by the States, are reserved to the States respectively, or to the people.” U.S. 

CONST. Amend. X. 

13 

 



  

resultant vote dilution.® In Oregon v. Mitchell, the Supreme Court held that, while Congress’ 

enforcement powers under the Fourteenth and Fifteenth Amendments are broad, they are not 

unlimited. Specifically, there are at least three limitations upon Congress’ power to enforce the 

guarantees of the Civil War Amendments: 

[1] First, Congress may not by legislation repeal other provisions of the 

Constitution. [2] Second, the power granted to Congress was not intended to 

strip the States of their power to govern themselves or to convert our national 

government of enumerated powers into a central government of unrestrained 

authority over every inch of the Nation. [3] Third, Congress may only "enforce" 

the provisions of the amendments and may do so only by "appropriate 

legislation." 

Oregon v. Mitchell, 400 U.S. 112, 128, 91 S. Ct. 266, 267 (1970) (emphasis added). 

C. The Use of § 2 To Force the Dismantling and Restructuring of 

Whole Judicial Election Systems to Enhance Minority Voting 

Rights is Unconstitutional. 

The interpretation of § 2 advocated by the Plaintiffs would permit the destruction and 

replacement of entire state judicial election systems on the ground that proportional 

representation should be achieved at any cost. Such a use of § 2 violates all of the limitations 

on Congress’ power to legislate pursuant to the Civil War Amendments recognized in Mitchell 

and severely distorts the constitutionally mandated balance of powers cited in Gregory. Its, 

therefore, unconstitutional. 

First, such a use of § 2 would repeal the Guaranty Clause and the Tenth Amendment. 

See discussion supra. Second, it would "strip the States of their power to govern themselves” 

  

5 Much less is required for a violation of § 2 than for a violation of the Fourteenth and 

Fifteenth Amendments from which § 2 derives. A constitutional violation requires intentional 

discrimination in promulgating or maintaining a challenged electoral structure or device. See 

Rogers v. Lodge, 458 U.S. 613, 617, 102 S.Ct. 3272 (1982), City of Mobile v. Bolden, 446 

U.S. 55, 61-62 100 S.Ct. 1490, 1497 (1980). 

14 

 



  

and would replace the state’s determination of the purposes of its judicial election system and 

the manner of achieving those purposes with a judicial election system structured in response to 

a federal court mandate, extending a "central government of unrestrained authority over every 

inch of the Nation." Third, it would extend the scope of § 2 far beyond its constitutionally 

approved use as "appropriate legislation" to enforce the mandates of the Civil War 

Amendments.’ 

Not only does the application of § 2 sought in this case outstrip the power of Congress 

to legislate pursuant to the Fourteenth and Fifteenth Amendments, it also outstrips what 

Congress actually did legislate. The Supreme Court has held that because legislation to enforce 

the guarantees of the Fourteenth Amendment "imposes congressional policy on a State 

involuntarily, and because it often intrudes on traditional state authority, we should not quickly 

attribute to Congress an unstated intent to act under its authority to enforce the Fourteenth 

Amendment." Pennhurst St. Sch. & Hosp. v. Halderman, 451 U.S. 1, 17, 101 S. Ct. 1531, 

1539 (1981); see also Gregory, 111 S. Ct. at 2401. The case for inferring congressional intent 

is weakest where the rights asserted would impose massive affirmative obligations on the states. 

See Pennhurst, 451 U.S. at 17, 25, 101 S. Ct. at 1540, 1543. This Court, likewise, has stated 

in this case, | 

It is hard to envision any area lying closer to the core of state concerns 

than the process by which it selects its own officers and functionaries. Any 

federal trenching here strikes at federalism’s jugular; and such a radical federal 

  

7 The Plaintiffs themselves observe that section 2 is intended to protect "effective black 

participation in democracy." HLA Brief at 15 n. 17 (citing Kirksey v. Bd. of Sup’rs Hinds 

County Miss., 554 F.2d 138, 151 (5th Cir. 1977)). It cannot, then, be an all-powerful weapon 

for depriving all citizens, including blacks, of their constitutionally protected democratic right 

to structure their own judicial election system. 

15 

 



    

trenching as is contended for today should therefore demand a very clear state- 
ment indeed. 

League of United Latin American Citizens, Council, No. 4434 v. William P. Clements, 914 F.2d 

620, 630-31 (5th Cir. 1990) (en banc). The concurring opinion likewise "would not rest on 

inference to support such a grant of authority. It would run counter to fundamental concepts of 

federalism." Id. at 649 (Higginbotham, J., concurring). 

Section 2 merely prohibits conduct which results in dilution of the votes of protected 

classes; it nowhere evinces an express intent to impose entire federally-created judicial selection 

systems on states to eliminate resultant vote dilution.® Since § 2 says not a word about the 

dismantling and restructuring of state election systems that merely have the result of diluting the 

votes of protected classes, and since it "defies common sense" (as well as legislative history) to 

believe that Congress, in enacting or amending § 2, intended to impose such a burden on the 

states, it must be inferred that Congress did nor create a right in minority voters to force the 

dismantling and restructuring of a State’s district judge election system to remedy resultant vote 

dilution. See Pennhurst, 451 U.S. at 27-31, 101 S. Ct. at 1545-47. 

D. Constitutional Rights Trump The Statutory Rights of Minority 

Voters Under § 2. 

Because of the constitutional interests at stake when a court presumes to restructure a 

state’s judicial election system, it is not the case, as the Plaintiffs claim, that "a state’s interest 

in its method of electing judges is but one factor to be weighed as part of the 'totality of 

  

® The legislative history of the 1982 amendments to § 2 expressly states that § 2 as 

amended "will nor result in wholesale invalidation of electoral structures.” S. Rep. No. 97-417 

at 35, reprinted in 1982 U.S. CODE CONG. & ADMIN. NEWS at 213 (emphasis added). Yet, that 

is exactly how § 2 is being used in this case. 

16 

 



  

circumstances’ inquiry in vote dilution cases," Amicus Brief at 3, or even that it need not be 

weighted until the remedy phase of a § 2 case, HLA Brief at 14, or that it need not be weighed 

at all. HLA Brief at 12-13. 

Very few Supreme Court cases have addressed the issue of the relative weight of § 2 

rights and constitutional rights. Since most vote dilution challenges have been brought against 

non-partisan local government boards, multi-member legislative districts, or other traditionally 

representative collegiate bodies, the only compelling state interest at stake - equal representation 

of all voters’ interests has coincided with the Fourteenth Amendment’s one-person, one-vote 

command, which is also the ground of a vote dilution claim. See Reynolds v. Sims, 377 U.S. 

533, 84 S.Ct. 1362 (1964). This is not at all the case with judicial election systems, which are 

not constructed or redistricted to give equal weight to the differing interests of racial groups but 

instead are constructed to effect impartial and efficient justice for all and to ensure the 

accountability and impartiality of all judges - each acting separately and with plenary power - 

to all citizens over whom they exercise the power to act. That is why the Supreme Court, when 

this case was before it on certiorari, recognized the difficulty in determining "whether a vote 

dilution violation may be found or remedied" in judicial election cases and remanded this case 

to this Court for that determination. Houston Lawyer’s Ass’n v. Attorney General of Texas, 111 

S.Ct, 2376, 2381.(1991), 

In this case, Texas’ interest in structuring its judicial election system to achieve the ends 

of fair, impartial, and efficient justice is compelling; and, since this interest derives not at all 

from the one-person, one-vote principle but from the Tenth Amendment and the Guaranty 

Clause, it is essential to balance any proved violation of § 2 against the invasion of the rights 

17 

 



    

of all Texans under the Tenth Amendment and the Guaranty Clause that would be caused by 

"remedying" the vote dilution proved. 

It is clear from Mitchell and Gregory, supra, that if proven vote dilution does nor rise 

to the level of a constitutional violation it cannot require the invasion of constitutionally 

protected rights, and there is no constitutional remedy for it. By contrast, if proven vote dilution 

does rise to the level of a constitutional deprivation of voting rights, it follows that it should be 

remedied. Similarly, if proven vote dilution of any degree can be remedied withour a 

constitutional violation, i.e., without forcing the wholesale restructuring of judicial election 

systems and sacrificing the compelling interests of the citizenry on which the system is premised, 

the dilution may and should be remedied. The same sort of balancing test is required whenever 

any claim is made that citizens of this country must sacrifice their constitutionally guaranteed 

rights in order that federal statutory rights may be enforced. 

In this case, as Defendants have shown, any vote dilution in Texas judicial races is of 

far less than constitutional weight, yet it can be remedied only by depriving all Texans of their 

constitutionally protected rights. Therefore, there is no remedy for it in law, even if vote 

dilution had been proved, which it was not. 

III. THE PLAINTIFFS DID NOT PROVE VOTE DILUTION IN HARRIS COUNTY. 

The facts in evidence in the trial court and restated in Judge Wood's briefs clearly 

demonstrate that in the decade of the 1970's the Democrats totally controlled all elections for 

judicial candidates in Harris County. In the decade of the 1980's the Republicans made strong 

inroads, except in the Democratic "sweep" year of 1982, with previously elected incumbents 

retaining their benches and Republican candidates having the advantage in open races. Newly 

18 

 



  

appointed incumbents, of whatever race or party, had difficulty remaining on the bench. 

Because of the exclusive domination of district court benches by Democrats until 1980, at the 

time of trial the minority voters of Harris County had elected more than 50% of the incumbent 

judges on the district benches. The minority voters expressed their preference for Democratic 

candidates to such an extent that minority Republican candidates failed to win even 10% of the 

minority vote in any contested election. Contrary to the Plaintiffs’ assertions, party and 

incumbency have overwhelmingly determined the outcome of Harris County district court races, 

and race has not been a significant factor in electoral losses or wins. See, e.g., Appellant 

Defendant-Intervenor Harris County District Judge Sharolyn Wood's Brief on Remand at 11 -13. 

Therefore, the Plaintiffs did not prove vote dilution in Harris County. 

CONCLUSION 
  

WHEREFORE, for the foregoing reasons, Appellant/Defendant/Intervenor Harris County 

District Judge Sharolyn Wood respectfully requests that the Court reverse the judgment of the 

District Court and render judgment for Defendants/ Appellants. 

19 

 



      

Respectfully submitted, 

PORTER & CLEMENTS, L.L.P. 

  

ov Vg rita 
/1. Eugene’ Clements ! 

Evelyn V. Keyes 
700 Louisiana, Suite 3500 

Houston, Texas 77002-2730 

Telephone: (713) 226-0600 

Facsimile: (713) 228-1331 

ATTORNEYS FOR APPELLANT/DEFENDANT/ 

INTERVENOR HARRIS COUNTY DISTRICT 

JUDGE SHAROLYN WOOD 

OF COUNSEL. 

Michael J. Wood 

Attorney at Law 

440 Louisiana, Suite 200 

Houston, Texas 77002 

Telephone: (713) 228-5101 

Facsimile: (713) 223-9133 

 



CERTIFICATE OF SERVICE 
  

[ certify that on this Uh day of fend 1993, a true and correct copy of the 
  

foregoing document by first class United States/mail, Dostage prepaid, addressed as follows: 

William L. Garrett 
Garrett, Thompson & Chang 

8300 Douglas, Suite 800 

Dallas, Texas 75226 

Rolando Rios 

Attorney at Law 

115 E. Travis, Suite 1024 

San Antonio, Texas 78205 

Sherrilyn A. Ifill 

NAACP Legal Defense & 

Educational Fund, Inc. 

99 Hudson Street, Suite 1600 

New York, New York 10013 

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Walker & Satterwaite 

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Mullinax, Wells, Baab & Cloutman, P.C. 

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MALDEF 

140 E. Houston 

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7630C:\DOCS\EVK\WO0O027001\072 

Robert H. Mow, Jr. 

David Godberg 

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2800 Momentum Place 

1717 Main Street 

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Walter L. Irvin 

5787 South Hampton Road 

Suite 210, Lock Box 122 

Dallas, Texas 75232-2255 

Susan Finkelstein 

Texas Rural Legal Aid, Inc. 

405 N. St. Mary’s #910 

San Antonio, Texas 78205 

Renea Hicks 
Special Assistant Attorney General 

P. O. Box 12548 

Capitol Station 
Austin, Texas 78711-2548 

Seagal V. Wheatley 

Wheatley & Sharpe, L.L.P. 

100 West Houston 

Frost Bank Tower, Suite 1200 

San Antonio, Texas 78205 

A oa [Mapa 
  

Evelyn V. Kef es