Supplement to Secretary of State Bayoud's Emergency Application for Stay

    IN THE UNITED STATES COURT OF APPEALS 2 

FIFTH CIRCUIT 

  

LEAGUE OF UNITED LATIN AMERICAN 
CITIZENS (LULAC), et al., 

§ 
§ 
§ 

Plaintiffs-Appellees, § 
§ 

Vv. § NO. 90-8014 

§ 

JIM MATTOX, et al., § 

k 

Defendants-Appellants. § 

SUPPLEMENT TO SECRETARY OF STATE 

GEORGE BAYOUD’S EMERGENCY APPLICATION FOR STAY 
  

Defendant-Appellant, Secretary of State George S. Bayoud, Jr. 

("Bayoud"), files this Supplement to Secretary of State George 

Bayoud’s Emergency Application for Stay, and in support thereof, 

would show this Honorable Court the following: 

l. On or about January 5, 1990, Defendant-Appellant Bayoud 

filed an Emergency Application for Stay of an Order entered by the 

Honorable Lucius D. Bunton in Cause No. MO-88-CA-154 (W.D. Tex.) 

on January 2, 1990. 

24 Attached as Exhibit "A" and incorporated by reference to 

this Supplementation to Secretary Bayoud’s Emergency Application 

For Stay, is an affidavit of George S. Bayoud, Jr., Texas Secretary 

of State. As shown by this affidavit, implementation of the 

January 2, 1990 Order will create utter and absolute chaos in the 

upcoming 1990 primary and general election. 

3. Also attached to this filing as Exhibit 9“C" is an 

affidavit of Melinda Nickless, the Program Administrator of the 

 



Elections Administration Section of the Elections Division of the 

Office of Secretary of State. As shown by this affidavit, several 

thousand voters in Midland, Lubbock, and Ector counties will be 

disenfranchised under the January 2, 1990 Order. 

4. Also attached to this filing as Exhibit "D" is a copy of 

a Proclamation by the Governor of the State of Texas, dated January 

9, 1990, summoning the 71st Legislature of the State of Texas into 

special session, beginning February 27, 1990 at 2:00 p.m., to 

consider legislation relating to the system for electing state 

appellate court judges, state district court judges and statutory 

county court judges. 

5. As heretofore recognized by this Circuit Court in Chisom 

v. Roemer, 853 F.2d 1186, 1192 (5th cir. 1988), Defendant-Appellant 
  

Bayoud relies upon the United States Supreme Court’s teaching of 

federal caution in enjoining state elections: 

It is enough to say now that, once a State’s 

legislature apportionment scheme has been 

found to be unconstitutional, it would be the 

unusual case in which a court would be jus- 

tified in not taking appropriate action to 

insure that no further elections are conducted 

under the invalid plan. owev u er- 

tain circumstances, such as where an impending 

election is imminent and a State’s election 

machinery is already in progress, equitable 

considerations might justify a court in with- 

holding the granting of immediately effective 

relief in a legislative apportionment case, 

even though the existing apportionment scheme 

was found valid. In awarding or withholding 

immediate relief, a court is entitled to and 

should consider the proximity of a forthcoming 

election and rely upon general equitable 

principles . . . 

  

  

  

  

  

  

  

  

  

  

   



  

Reynolds v. Sims, 377 U.S. 538, 585 (1964). The above-quoted 
  

passage applies with great force to a determination by this Court 

of the propriety of staying the January 2, 1990 Order of the United 

States District Court for the Western District of Texas. 

6. Finally, Defendant-Appellant Bayoud takes issue with 

Appellant Mattox’s position in his Motion to Strike that the 

Secretary of State’s Notice of Appeal is ineffectual, given the 

pendency in the district court of Mr. Mattox’s motion to modify the 

January 2, 1990 Order. For the reasons stated in Judge Entz’s 

January 9, 1990 Response to Plaintiffs’ Motion to Dismiss and 

Mattox’s Motion to Strike, Defendant-Appellant Bayoud’s Notice of 

Appeal is timely and effective. 

Respectfully submitted, 

LIDDELL, SAPP, ZIVLEY, HILL 

& LABOON 

wi She L_ Je Av 
Sohn 1.. Hill, Jr. 

ate Bar No. 00000027 

dy Taylor 

State Bar No. 19727600 

3300 Texas Commerce Tower 

Houston, Texas 77002 

(713) 226-1200 

  

ATTORNEYS FOR GEORGE S. BAYOUD, 

JR., SECRETARY OF STATE OF TEXAS 

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that a true and correct copy of the foregoing 

Supplementation to Secretary of State George S. Bayoud, Jr.’s 

Emergency Application For Stay has been served upon all counsel of 

record, by overnight federal express, on this _/£ day of January, 

iy (Ls P2% al ard 
[2 Lt. Hill Jr. v 
  

WAT\LULAC. 7 

 



  

IN THE UNITED STATES COURT OF APPEALS 
FIFTH CIRCUIT 

LEAGUE OF UNITED LATIN AMERICAN 
CITIZENS (LULAC), et al, 

Plaintiffs—-Appellees, 
No. 90-8014 

Y. 

JIM MATTOX, et al, 

Defendants-Appellants. 

AFFIDAVIT 

STATE OF TEXAS ) 

) 
COUNTY OF TRAVIS ) 

BEFORE ME, the undersigned authority, personally appeared 

George S. Bayoud, Jr., who after being duly sworn, upon his oath 

stated and deposed as follows: 

My name is George S. Bayoud, Jr. I am the Texas 

Secretary of State, having been appointed by Governor 

William P. Clements, Jr., confirmed by the Texas Senate, 

and taken the oath of office on June 19, 1989. I am a 

named party in the above styled and numbered cause. 

I am familiar with the contents of my January 4, 1990 

letter to the Attorney General which is attached as 
EXHIBIT "B". The information contained therein, 
including the brief list of administrative problems which 
will result from the implementation of the January 2, 
1990 Order, is true and correct. 

0], wt Sul 
G Sk \BAYOUD, JR 

S SS RIBED AND SWORN TO be e, the Ra authority, 
this ; day of January, 1990. 

Haren )  acqer 

a itn Lh Ergied 
NOTARY 2) L TE aS TEXAS 

Fip- Dake i: 273/92 

EXHIBIT A 

FURTHER AFFIANT SAYETH NOT. 

  

  

  

JXH/BAYOUD1 

 



TS i 

  

  
EXECUTIVE DIVISION 

P.O. Box 12697 
Austin, Texas 78711-2697 
(512) 463-5701 

ELECTIONS DIVISION 
P.O. Box 12060 
Austin, Texas 78711-2080 
(512) 463-5650 

Disclosure Filings 
P.O. Box 12070 
Austin, Texas 78711-2070 
(512) 463-5704 

DATA SERVICES 
DIVISION 
P.O. Box 12887 
Austin, Texas 78711-2887 
(512) 463-5609 

SUPPORT SERVICES 
DIVISION 
Financial Management 
P.O. Box 12887 
Austin, Texes 78711-2887 
S12) 463-5600 

Staff Services 
P.O. Box 12887 
Austin, Texas 78711-2887 
(512) 463-5600 

STATUTORY FILINGS 
DIVISION 
Cocporations 
P.O. Bax 13697 
Anstin, Texas 78711-3697 
(512) 463-5555 

Swtaory Documents 
P.O. Bo: 12887 
Austin, Texas 78711-2887 
(512) 463-5654 

Texas Register 
P.O. Box 13324 
Austin, Texas 78711-3824 
(512) 463.5561 

Uniform Commercial Code 

P.O. Bax 13193 
Austin, Texas 78711-3193 
(512) 475-2705 

Office of the 

SECRETARY OF STATE 

George S. Bayoud, Jr. 

SECRETARY OF STATE 
  

January 4, 1990 

The Honorable Jim Mattox 
Attorney General 
State of Texas 
Supreme Court Building 
Austin, Texas 78711 

RE: CIVIL ACTION #MO-88-VS-1954 

UN e. Vi MA E 

UNITED STATES DISTRICT COURT, WESTERN DISTRICT 

OF TEXAS, MIDLAND-ODESSA DIVISION 

Dear General Mattox: 

As I told you in my letter to you of December 21, 

1989, I opposed the proposed agreed order which you 
were negotiating with the plaintiffs. Among the 
reasons were that it would be difficult to ad- 
minister; some citizens may effectively be dis- 
enfranchised in elections under the proposed plan; 
and my belief that judicial selection is a matter for 
the Texas Legislature to address. None-the-less, you 
submitted the plan and the court in great part 
adopted the plan. Therefore, as a named defendant in 
the referenced cause, I am instructing you as my 

legal counsel to immediately file a Motion for a Stay 
of the entire Order dated January 2, 1990. This stay 
should be sought to be maintained until full appel- 
late review on the merits. I further instruct you to 
make an interlocutory appeal on all available issues 
from such Order. The problems mentioned in that 
December 21st letter continue to exist under Judge 
Bunton's Order. 

As Chief Elections Officer of the State, I am en- 
trusted with the duty of advising and assisting 
election authorities with regard to the application, 
operation, and interpretation of the Election Code 
and election matters generally. There are numerous 
problems in implementing the nonpartisan judicial 

EXHIBIT B 
 



& | ® 

  

The Honorable Jim Mattox 

Page 2 

elections in nine counties in Texas as set out in the order. A 

brief list of only some of these problems is as follows: 

(1) Which authority is actually ordering the elections? 

It appears that Judge Bunton is ordering the elections as his 
order cites on page 7, Item 6: 

Section 41.001(b)(5) of the Texas Election 
Code which refers to “an election held under 
an order of a court or other tribunal...."” 

(2) There are numerous other questions revolving around 
the answer to Question (1) above, e.g., who gives notice of 
the elections; who authorizes the voting systems to be used 
in the elections; who is the custodian of the election re- 
cords; and so forth. 

(3) Which election precincts are to be used for the 
elections? 

(4) Who appoints the election judges? 

(5) As the elections do not fall within the definition 
of a *primary election" in Section 1.005(14) of the Election 
Code, is it to be assumed that there will be no filing fees 
paid by candidates, no petitions in lieu of filing fees, and 
no judicial petitions as required in certain counties? 

(6) How will the canvass be conducted? Under the 
Election Code, the Governor is to canvass the returns for a 
district office. Under Section 67.012 of the Election Code, 
this state canvass may not be held earlier than the 15th day 
after the election, i.e., May 20. Absentee voting for the 
runoff is to begin on May 14 under the provisions of the Elec- 
tion Code. There is not enough time for the canvass and 
preparation of ballots for absentee voting to begin for the 
June 2 runoff. p 

(7) Who will be the absentee voting clerks in Ector, 
Lubbock, and Midland Counties as the elections will not be 
countywide in those counties? 

(8) What will be the procedure to be used if a judge 
vhose term is not on the ballot in 1990 resigns or dies? Will 
the unexpired term be on the ballot in May? 

(9) There could be a problem in preserving the election 
results from the primary runoff in that absentee voting for 
the May 5 election will begin on April 16 while the runoff is 

April 10. 

 



® te . = -" . - ——— g 1 AISA ew 

  

The Honorable Jim Mattox 

Page 3 

(10) There is no provision in the Order for a filing of 
declaration of write-in candidacy; thus, there will be an 

unlimited number of write-in candidates in the elections and 

all write-in votes will have to be counted. 

(11) Which political subdivision will pay the costs of 

conducting the elections? Harris County will have no other 

elections on May 5 and the County Clerk estimates the cost for 

the election will be some $1 million in Harris County alone. 

There are numerous other questions and problems with the implemen- 

tation of Judge Bunton's Order which I will not list in the inter- 

est of brevity. I am concerned, however, that on Page 4 of the 
Order Judge Bunton says: 

... An Agreed Settlement was entered into by and between 

the Plaintiffs and Defendants in this matter, but was not 
approved by some of the Intervenors. 

I would refer you to my letter of December 21, 1989, in which I 
objected to that proposed settlement and “request{ed] that you 

refrain from entering into such plan and that you refrain from 

entering into any other such settlement or plan without my prior 

written consent." 

As you know, unless the court's order is stayed by mid-January 
1990, when candidates have been certified and ballots are being 
prepared, the election cycle will have progressed beyond a point 
at which it may reasonably be altered. Furthermore, it is impor- 
tant that the legislature have a reasonable period of time to 
address this issue in a special session. As a result, I need to 
know whether you will seek the stay in accordance with my instruc- 

tion. I need your response in a timely manner to enable me to seek 
independent counsel, without cost to the state, in the event you 
will not abide by my instructions. New counsel would need adequate 
time to seek a stay before mid-January 1990. 

I look forward to hearing from you. 

Sincerely,     
GSB:TH/blltrs 

cc: Judge Lucius D. Bunton, III, Judge, United States District 

Court, Western District, Midland-Odessa Division 

 



"SENT BY:SECRE1ARY OF 

The Honorable Jim Mattox 

Page 4 

Clerk, United States District Court, Western District, 

Midland-Odesca Division 

Ms. Mary F. Keller 
First Assistant Attorney General 

Mr. Renea Hicks 
Special Assistant Attorney General 

Mr. Javier Guajardo 
Assistant Attorney General 
P. O. Box 12548, Capitol Station 
Austin, Texas 78711-2548 

Mr. William L. Garrett 
Garrett, Thompson & Chang 
8300 Douglas, Suite 800 
Dallas, Texas 75225 

Mr. Rolando Rios 
Southwest Voter Registration & 

Education Project 
201 North St. Mary's, Suite 521 
San Antonio, Texas 78205 

Ms. Sherrilyn A. Ifill 
NAACP Legal Defense and Educational Fund, Inc. 
99 Hudson Street, 16th Floor 
New York, New York 10013 

Ms. Gabrielle K. McDonald 
301 Congress Avenue, Suite 2050 
Austin, Texas 78701 

Mr. Edward B. Cloutman, III 
Mullinax, Wells, Baab & Cloutman, P.C. 
3301 Elm Street 
Dallas, Texas 75226-1637 

Mr. J. Eugene Clements 
Porter & Clements 
700 Louisiana, Suite 3500 
Houston, Texas 77002-2730 

Mr. Robert H. Mow, Jr. 
Hughes & Luce 
2800 Momentum Place 

1717 Main Street 

Dallas, Texas 75201  



  

The Honorable Jim Mattox 

Page 5 

The Honorable William P. Clements, Jr. 
Governor, State of Texas 

The Honorable William P. Hobby 
Lieutenant Governor, State of Texas 

The Honorable Gibson D. Lewis 
Speaker of the Texas House of Representatives 

The Honorable Thomas R. Phillips 
Chief Justice, Supreme Court of Texas 

 



  

IN THE UNITED STATES COURT OF APPEALS 

FIFTH CIRCUIT 

LEAGUE OF UNITED LATIN AMERICAN 
CITIZENS (LULAC), et al, 

Plaintiffs-Appellees, 
No. 90-8014 

) 
) 
) 
) 
) 

Vv. ) 
) 

JIM MATTOX, et al, ) 
) 

Defendants—-Appellants. ) 

AFFIDAVIT 
  

STATE OF TEXAS ) 
) 

COUNTY OF TRAVIS ) 

BEFORE ME, the undersigned authority, personally appeared 

MELINDA NICKLESS, known to me, who upon being by me duly sworn 

deposed and said as follows: 

My name is Melinda Nickless. I am the Program 

Administrator of the Elections Administration Section of 

the Secretary of State’s Elections Division. I am over 

the age of twenty-one (21) years and am fully competent 

to testify to the information stated herein. I have 

personal knowledge of the facts set forth in this 

affidavit, and they are true and correct. 

Under the Order of the United States District Court for 

the Western District of Texas in Cause No. 88-CA-154, 

styled LULAC Council 4434, et al v. Jim Mattox, et al, 

the following number of voters will not be allowed to 

vote for a district judge in the upcoming May election: 

In Midland County, District Judges will be elected from 

Commissioners Precinct 3 and 4. The number of registered 

voters that will not be voting in Midland County will be 

25,165 registered voters: 14,337 in County Commissioners 

Precinct 2 and 10,828 in County Comnissioners Precinct 

l. 

EXHIBIT Cc 
  

 



. » 

  

In Ector County, District Judges will be elected from 

Commissioners Precinct 2, 3, and 4. There will be 10,509 

registered voters in County Commissioners Precinct 1 that 

will not get to vote. 

In Lubbock, District Judges will be elected from 

Commissioners Precincts 2, 3, and 4. There will be 

37,446 registered voters from Commissioners Precinct 1 

that will not get to vote for a District Judge 

Accordingly, the January 2, 1990 Order referenced above 

will effectively disenfranchise thousands of voters in 

Midland, Ector and Lubbock Counties. 

MELINDA NICKLESS 

FURTHER AFFIANT SAYETH NOT. 

  

SUBSCRITD AND SWORN TO before me, the undersigned authority, 

/ this day of January, 1990. 
  

aren H- Zs es er 

Al (latest 
NOTARY PUBLIC, STATE OF TEXAS 

Exp. Dab: 2/3/70 

  

JXH\NICKLES1 

 



) 

J Ad - SS -90 TUL 1c: ff eov.orrrce GEN. COUNSLCL 

cir Rr Tin Ee a Be TN ofl LCR Eo 
PRI EE FORCE ih Po on ade     
PROCLAMATION 

41-2372 

Under the provisions of Article IV, Section 8 of the Texas 

constitution, I, William P. Clements, Jr., Governor of Texas, do 

hereby call a special session of the 71st Legislature, to be 

convened in the city of Austin commencing at 2:00 p.m. the 27th day 

of February, 1990, for the following purposes: 

(1) to consider legislation to establish and make suitable 

provision for the support and maintenance of an efficient system 

of public free schools; and 

(2) to consider legislation relating to the system for 

electing state appellate court judges, state district court judges 

and statutory county oourt judges. 

The Secretary of State will take notice of this action and 

will notify the members of the Legislature. 

IN TESTIMONY WHEREOF, I have hereunto signed my name 

officially and caused the Seal of the State to be affixed hereto 

at Austin, this 9th day of January, 1990. 

      

  

    william P. Clements, 

Governor of Texas 

  
  

Gadrie 6( vayoud, 

creta £f State 

FILED {IN THE OFRCE OF THE 
SECRETARY OF STATE 

A100 Pn. goo