Brief for Respondent

    Nos. 90-813 and 90-974 

  

Tu the Supreme Court of the United Stales 

OCTOBER TERM, 1990 

  

HOUSTON LAWYERS’ ASSN, et al., and 

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, et al, 

PETITIONERS, 

VV. 

THE ATTORNEY GENERAL OF TEXAS and 

JUDGE F. HAROLD ENTZ, et al., 

RESPONDENTS. 

  

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

BRIEF FOR RESPONDENT 

JUDGE F. HAROLD ENTZ 

  

ROBERT H. Mow, JR * 

DAVID C. GODBEY 
BOBBY M. RUBARTS 

CRAIG W. BUDNER 
HUGHES & LUCE 

Of Counsel: 1717 Main Street 

Suite 2300 

SIDNEY POWELL Dallas, Texas 75201 
STRASBURGER & PRICE (214) 939-5500 

*Counsel of Record  





ESTI PRE IE 

Whether Congress included district judges within 

Section 2(b) of the Voting Rights Act when it extended Section 

2 to add a results test for vote dilution? 

 



    

TABLE OF CONTENTS 
Page 

Question Presented forReview. .... ..,........ 1 

Table of CONN 5m 5 ite v5 5 dsm a eitinin sie 1 

Table of Authorities. ov. 4 oe. svc i saves ii 

Stammte Involved.» we oi 0 ea 1 

Statememof Facts... .... ...o.saiessieae ’. 

Summary of Argument... 2d... co hn ee, 8 

ATUMCNE sis vse favs seen ins ries 10 

I. District judges are not representatives and 
therefore were not included within the scope 
Of the extensionof section 2... ..... one 10 

A. The 1982 amendments to section 2 
added both a results test and a 
dilutionremedy . ... ...... 0.000. 10 

B. Judges are not included in the plain 
language of section2). . ............ 14 

C. Neither rules of construction nor 
legislative intent can transform judges 
into representatives. .. .. cov... ns 18 

II. A section 2(b) attack does not lie against 
Texas’ district courts because they are 
single member districts... LL... 0s, 21 

III. This Court should not construe section 2(b) 
to reach trial judges because that would 
require this Court to address serious and 
fundamental constitutional questions. . ..... 23 

A. Application of section 2(b) to Texas’ state 
judiciary would unconstitutionally impinge 
on intrinsically sovereignty matters. . . ... 24 

1. States retain a residual core of 
sovereignty into which the federal 
government cannot intrude. .... ..... 24 

 



2. Application of section 2(b) to state judges 
would impermissibly intrude on the 
operation of the state judiciary ...... 26 

B. Applying section 2(b) to judges violates 
principles of separation of powers . . .... 31 

C. The 1982 amendments to section 2 
were not a valid exercise of Congress’ 
AMhOMILY: ii vot vn ive vs ALU RNGE- 2 33 

CONCIUSION itive s os ss ca ss sav sss snisns 35 

 



  

1v 

TABLE OF AUTHORITIES 

CASES 
  

Butts v. City of New York, 
T79F 2d 141 (Rd Ci. 198%)... . ........%.:. 21 

Coyle v. Smith, 
221 1.5.5589(1911). ............ QS, 25 

Crowell v. Benson, 
2S US. 2201032) ©... cee 23 

Fortson v. Dorsey, 
B7911.5.433.01963), ... coi oh nie siti 13n.l12 

Garcia v. San Antonio Metropolitan Transit Authority, 
469 U.S: 328 (198%)... . .. oa... 24 & n.22 

Gomillion v. Lightfoot, 
364 U.S. 330 (1900). ooo ins aoe ivi sebiins ov vs 12n.11 

Guinn v. United States, 
239 US. 347 (1018). ¥. rR oe 12n.l1l 

Greenwood v. United States, 
330. U.8.366.01956): 0.1. sn vit i rn he 211.20 

Harrison v. PPG Indus., Inc. 
440 U8. 573 C1080). .;. . c. .. i  ae 20 n.19 

Hatten v. Rains, 
B34 F.2d 637 (5th Cir. 1938)... ........ “..... 18 n.16 

Hurtado v. California, 
1IOUS. S16 (1884)... ooo seuss sivas 28 n.25 

INS v. Cardoza-Fonseca, 
4301.8. 421 (1987)... co Aad 16 

Lane v. Wilson, 
3071.85.20 €1939). ... ...... 0. a 12n.11 

   



LULAC v. Clements, 
914 F.2d 620 (5th Cir. 1990) (en banc) . ......... passim 

Martin v. Mabus, 
700 F. Supp. 327 (S.D. Miss. 1983).:.5 ul 85. 29 n.26 

City of Mobile v. Bolden, 
4461S 385 (1980)... .....cc cicero. 1583 8,10-13,26 n.23 

Myers v. Anderson, 
238 11.5. 363 (1915)... ul. 8. Lb 220 une 12 n.11 

Oregon v. Mitchell, 
4000.8. 1120970)... ......... 20808 5 4 2m 25.27 

City of Phoenix v. Kolodziejski, 
300118.204 (1970) .............. 2500080 3 27 

Reynolds v. Sims, 
3770U08.53300964). ............ spurl. 13:n.12 

Smith v. Allwright, 
21S. 649191)... .... 12n11 

South Carolina v. Katzenbach, 
333 11.8. 301 (19606)... ...,  .... 2M 12011 

Terry v. Adams, 
MS US. 461 (1983): seed 12nll] 

Texas v. White, 
FANS. 7001869)... ce nina, SRL 25 

Thornburg v. Gingles, 
d788.5.30(1986) .............. 51 6n.3;23 n21 

United States v. Dickie, 
773 F.2d 607 (5th Cir. 1985): : 3 2. 2300 200... 29 

United States v. Jin Fuey Moy, 
241 U.S. 394,365. C1. 65831916). ........... 24 

United States v. Monsanto, 
1098S. Ct. 26571989): : =. srr. io ii... 16  



  

United States v. Riggs & Co., 
203:1.5..136, 27 S.Ct.i30641906).. .... v.00. 0 20-21 

United States v. Taylor, 
487 U.S. 326,108 S.Ct. 2413 (1938)... . . .. ..Ve 16 

United Trans. Union v. Long Island RR. Co., 
458 U.8..678.41082), ...........isciv0 na 00 0004 0 24 

Wells v. Edwards, 
347 F. Supp. 453 (M.D. La. 1972), 
afd, 408 U.S, 1095(1973).... . .. .. .: «us... 13n.16 

Whitcomb v. Chavis, 
3S. 12401971)... ...... o.oo... 13n.12 

White v. Regester, 
41208.7585Q1973). ...... ..... ............ 13 n.12 

Wise v. Lipscomb, 
437 U.S. 335(1978). . ......:......00csss. 29 n.26 

STATUTES AND REGULATIONS 
  

TEXAS CONST. 

Ans. ras 31,32 &n.29 
AIL. VS din. Juin cin. JINR, 32 n.29 

TEX. GOV'T CODE ANN. 

74053: «cron. 27 n.24 
274,030, 0 vinnie Ara LLU 27 n.24 

Voting Rights Act 
Section 2.0... nisin RRL A passim 
Section I4(cHlY. . . ..... .. 20 n.18 

S. REP. NO. 97-417, 97th Cong., 2d Sess.(1982), 
reprinted in 1982 U.S. CODE CONG. & ADMIN. 
NEWS 177 ce. .vv..... 8000 0, 2G avaal 13-14 

   



vii 

COMMITTEE ON THE JUDICIARY’S SUBCOMMITTEE ON 

THE CONSTITUTION, REPORT ON S. 1992 TO AMEND 

THE VOTING RIGHTS ACT OF 1965, attached as exhibit 
to Additional Views of Senator Hatch, S. REP. NO. 417, 
97th Cong, 2d Sess. 94 (1982). ........ 34 nn.30 and 31, 

35 n.32 

).S. CONST.: 
Sixth Amendment... Vol oa 06... 29 
Tenth Amendment... ou 00h 0 0 0, 24 
Fourteenth Amendment... .. 0 ah... passim 
Fifteenth Amendment. . ......c.. oi ve .. passim 
Ouataty Clause, 14. vcs ts ts vce vn 24 

MISCELLANEQUS 

BLACK'S LAW DICTIONARY 1302 (6th ed. 1990)... 15 n.14 

Champagne, Judicial Reform in Texas, JUDICATURE, 
Ot -NOV. 1988 er oe rans rt Tens 71.10 

Champagne, The Selection and Retention of Judges in 
Texas, 40 Sw. LJ, 66.(1986). sovevvnvn coo vn. 7 n.10 

A. DOYLE, THE COMPLETE SHERLOCK HOLMES 

(1927), . soe i hn rere, 20 

THE FEDERALIST (J. Cooke ed. 1961)... ........ 31.32 

Hickok, Judicial Selection: The Political Roots of Advice 
and Consent in JUDICIAL SELECTION: MERIT, IDEOLOGY 

AND POLITICS 5 (National Legal Center for the Public 
interest 1990)... . Sh. oli. . J Clair aa 33 

Mansfield, Impartial Representation, in 
REPRESENTATION AND MISREPRESENTATION 

106 (R. Goldwinied. 1868). .., . JLo, SLuasL, 17.015 

L. TRIBE, AMERICAN CONSTITUTIONAL LAW (2d ed. 
198%). vv eB i aa. 33 

WEBSTER'S THIRD NEW COLLEGIATE DICTIONARY 
1926 (1976)... . cis cpanel 15 n.14  



    

 



Nos. 90-813 and 90-974 

Tu the Supreme Court of the United States 

OCTOBER TERM, 1990 

  

HOUSTON LAWYERS’ ASS'N, et al., and 

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, et al., 

PETITIONERS, 

Vy. 

THE ATTORNEY GENERAL OF TEXAS and 
JUDGE F. HAROLD ENTZ, et al., 

RESPONDENTS. 

  

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

BRIEF FOR RESPONDENT 

JUDGE F. HAROLD ENTZ 

  

STATUTE INVOLVED 

Section 2 of the Voting Rights Act, as amended, 

provides as follows: 

(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 
guarantee set forth in section 1973b(f)(2) of this title, 
as provided in subsection (b) of this section.  



  

2 

(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 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 (1988) (emphasis in original). 

STATEMENT OF FACTS 

Respondent Judge Entz is a sitting criminal district 

judge in Dallas County, Texas. He intervened as a defendant 

partly to present an independent factual defense of Dallas 

County.! Although this case was resolved below on legal 

issues largely independent of the facts, Petitioners have 

presented such a misleading view of the facts as they pertain to 

Dallas that Judge Entz must respond. 

Dallas County is a large metropolitan area 

encompassing the seventh largest city in the U.S. (Dallas), and 

several medium-sized cities (Garland, Irving, Mesquite, 

  

1Judge Entz also presented legal arguments not raised by the Attorney 
General, including the plain meaning and constitutional arguments briefed 
here. 

   



Richardson and others). (DI-Dallas Ex. 2)2 Dallas County has 

a sophisticated system of judicial administration to handle the 

problems that arise in a major metropolitan county. (Tr. 4:144) 

Its thirty-seven district courts are divided into four specialized 

groups with principal responsibility for criminal, civil, family, 

and juvenile matters. (DI-Dallas Ex. 22) Although each court 

operates as an autonomous judicial entity, central 

administration of case docketing and jury selection from venire 

persons within the county provides for the quick and efficient 

administration of justice in Dallas County. (See Summary of 

Deposition of Hon. John McClellan Marshall, DI-Dallas Ex. 

24) 

District judges in Dallas County run for and are elected 

to the bench of a particular, specialized district court. (Tr. 

5:81) Each court hears its own docket and decides its own 

cases; there is no collegial decisionmaking by any collective 

body of district judges. (I/d.) Thus, each court is effectively a 

single-person elected position. In accordance with the long 

tradition in the State of Texas of the county being the 

fundamental unit of state government at the local level, each 

judge is elected county-wide and has primary jurisdiction 

county-wide. (Tr. 4:138) This decades-old system ensures 

that no particular single interest group in a diverse county can 

exercise undue influence over any particular judge, that all 

judges will have a county-wide perspective to match their 

county-wide jurisdiction, and that all voters in the county can 

  

2All of Judge Entz’s exhibits (noted “DI-Dallas Ex. x”) were offered and 
admitted as a group. Tr. 4:72-74.  



  

4 

participate in the election of all judges with primary jurisdiction 

over the county. 

Until recently, Dallas County was a one-party 

Democratic county. (Tr. 4:98) Beginning in about 1978, 

however, Dallas County government underwent a Republican 

revolution. The Dallas County bench in a short ten years 

transformed from completely Democratic to almost completely 

Republican. (Tr. 4:99; DI-Dallas Exs. 4A-8A) The simple fact 

in Dallas County judicial politics today is that only an 

anomalous Democratic candidate can be elected as a district 

judge.3 Conversely, candidates who run as Republicans will 

get elected. 

This overwhelming trend to Republican judges is 

completely color-blind. Black Republican candidates have 

defeated white Democratic incumbents, and white Republican 

challengers have defeated highly qualified black Democratic 

incumbents who had virtually every conceivable endorsement.” 
  

3The only elected Democratic district judge in Dallas County is named 
Ron Chapman. Another Ron Chapman (of the Dallas based radio station 
KVIL) is the host of the top-ranked morning radio show in the Dallas area. 
(Tr. 4:101) 

4This situation is true without regard to race, recommendation of the local 

Committee for a Qualified Judiciary, results of the local Bar poll, money 
spent in campaigning, and/or incumbency. All of the evidence from both 
sides is consistent on this point. 

SFor example, Jesse Oliver, a black Democrat, was a former state 
representative from a predominantly minority area of Dallas. He was 
appointed to the district bench following a relatively high-visibility state 
senate campaign. In running for reelection he received the endorsements of 
virtually all groups that offer endorsements -- both major Dallas 
newspapers, the Committee for a Qualified Judiciary (a non-partisan 
group), the local bar poll, and numerous civic groups. Although these 
endorsements contributed to his being one of the highest polling 
(continued on next page) 

   



Of the nine contested primary and general district judge 

elections with a black candidate, the black Republican 

candidates won all four of the races in which they campaigned 

and the black Democratic candidates lost all five of the races in 

which they campaigned. (Tr. 4:106, DI-Dallas Ex. 9A) Dallas 

County voters are generally unaware of the name, office, or 

racial background of judicial candidates. 

Black Democratic judicial candidates fare equally as 

well as white Democratic judicial candidates, and typically do 

better than the top of the Democratic ticket (DI-Dallas Ex. 9A); 

one black Republican judicial candidate, Judge Carolyn 

Wright, led the ticket of all Republican candidates in Dallas 

County. (Tr. 4:213) Even Petitioners’ expert Richard 

Engstrom candidly admitted that the evidence established that 

party affiliation rather than race is the best indicator of both the 

election results and which candidate would receive the support 

of the minority community. (Tr. 2:147-49) Expert witnesses 

for both sides of the case and most of the losing black 

Democratic judicial candidates agreed that the losing black 

Democratic judicial candidates would have won had they run as 

  

(continued from previous page) 
Democratic candidates in Dallas County, he still lost in the Bush-led 
Republican sweep of Dallas County. (Tr. 2:244; 2:247-52) 

6See DI-Dallas Ex. 11. This exhibit is a survey of voter awareness of 
Dallas County judges. The survey indicated that the vast majority of 
voters of all races were wholly unaware of the identity of Dallas County 
judges, much less the race of those judges. Amazingly, even when told 
that persons named in the survey were elected public officials, most 
respondents identified Ron Chapman as a radio disk jockey. Charts 
summarizing the survey data are found at DI-Dallas Exs. 12-14. See also 
Tr. 4:104-23 (testimony of Dr. Champagne regarding survey).  



  

Republicans — as they were all invited to do. (Tr. 2:188; 

5:283-84) Black judicial candidates of both parties are faring 

neither better nor worse because of their race. Judicial 

candidates in Dallas County win or lose due to their partisan 

affiliation, not their race.” 

The District Court ignored the political and practical 

reality and based its conclusions on the reality-blinding 

excursion of bivariate ecological regression analysis.® 

(November Order at 14-78) According to the 1980 Census, 

Dallas County was approximately 65% white, 19.7% black, 

and 15.3% Hispanic. (Tr. 4:130) In August, 1989, the Dallas 

County district bench was 91.7% white, 5.6% black, and 

2.8% Hispanic. (Tr. 4:130; DI-Dallas Ex. 18A) Petitioners 

claimed that “underrepresentation” alone showed a violation of 

section 2, and used their statistical analyses to support their 

claims. 

But the undisputed facts showed that, nationwide, the 

racial composition of a district bench will match the racial 

composition of the bar from which judicial candidates are 
  

It certainly also is true that black and white voters tend to show different 
voting patterns. Black Dallas County voters in judicial races tend to vote 
over 95% for the Democratic candidate, with a phenomenal 93% casting 
straight ticket votes. (Tr. 5:280) White voters tend to vote 60-70% for 
the Republican candidate, with a much smaller 28% straight ticket 
Republican vote. (Tr. 5:281; DI-Dallas Ex. 16) The amazingly high 
level of straight ticket voting by black voters, coupled with the relative 
lack of awareness or knowledge of judicial candidates, shows that even in 
the black community, judicial candidates get black votes not because of 
their race or qualification, but because of their partisan affiliation. 

8“Bivariate ecological regression analysis” is a statistical technique that 
attempts to estimate voting patterns of racial groups. See Thornburg v. 
Gingles, 478 U.S. 30, 52-53 (1986). 

   



drawn, rather than the population as a whole, regardless of 

what system of judicial selection was used.® The evidence 

showed that 2.2% of the lawyers in Dallas County are black. 

(Tr. 4:130) Dr. Champagnel? testified accordingly that the 

Dallas County judicial bench (or Texas or New York benches) 

would have a racial composition that paralleled the number of 

minorities in the pool of legally qualified candidates. The 

number of minority law students is increasing; as those 

students graduate, pass the bar, and gain experience, the 

percentage of minority judges inevitably will increase. (Tr. 

4:136-38) The judicial election system that the District Court 

condemned had nothing to do with the percentage of minorities 

on the bench. 

The Petitioners’ case rested primarily upon the 

statistical type of proof discussed above; conspicuously lacking 

from their case was any contention or testimony that the relief 

sought — single member districts — would have a positive 

impact on the role of minorities in connection with the judicial 

  

9This was based on a comprehensive study of all likely factors involved in 
judicial selection, including the method of selection. The study showed 
that nationwide by far the highest correlation and the best explanatory 
factor for the number of minority judges in a jurisdiction is the number of 
minority lawyers. (Tr. 4:130-32) That correlation holds true in Dallas 
County, as well as the rest of the country. 

10Dr. Anthony Champagne is a professor of political science at the 
University of Texas at Dallas, specializing in judicial selection; he is 
currently serving as a United States Supreme Court Judicial Fellow. He 
has published widely in the field. See, e.g., Champagne, The Selection 
and Retention of Judges in Texas, 40 SW. L.J. 66 (1986); Champagne, 
Judicial Reform in Texas, JUDICATURE, Oct.-Nov. 1988, at 146; see 
generally DI-Dallas Ex. 3 (Champagne vita). Dr. Champagne testified as 
an expert witness for Judge Entz.  



  

system other than permitting the election of some greater 

number of minority judges. The most probative testimony on 

this point came from Judge Wright of Dallas County and Judge 

Sturns of Tarrant County. Both of these black Republican 

judges believed that single member districts would be bad for 

minorities in the long term. They would lead to “black” seats 

on the bench, with public perceptions of “black” justice and 

“white” justice depending on the judicial district. (Tr. 4:192- 

93; 5:71-72) Black jurists, as a practical matter, would be 

limited to their quota of seats based on the number of majority- 

minority districts and would be unable to run from other 

districts. (Id.) The net result over time of single member 

districts would be a hardening of racial attitudes, rather than a 

color-blind system of justice. (/d.) That surely is not a goal to 

be pursued at the expense of a system that even the District 

Court acknowledged “has, for the most part, served us well for 

many years.” (November Order at 6) 

MA R ENT 

Section 2(b) of the Voting Rights Act was added in 

1982 in the course of amendments designed to reverse this 

Court’s ruling in City of Mobile v. Bolden, 446 U.S. 55 

(1980). The amendments were designed to change the proof 

standard from “intent” to “results,” and also to add protection 

against vote dilution to a statute that previously protected only 

access to the ballot. Petitioners characterize the issue before 

this Court as whether an amendment that was intended only to 

change the standard of proof should also be read to have 

accidentally excluded judges from the coverage of section 2. 

   



9 

This position makes sense only if one ignores the second goal 

of the 1982 amendments, to create a new dilution remedy. 

With this second goal in mind, the question before the 

Court, properly understood, is: When Congress added new 

substantive scope to section 2 with the 1982 amendments, did 

they include judges within that new federal remedy? The 

straightforward way to answer that question is to look at the 

text of the new statute. The dilution remedy extends only to 

“representatives.” Judges are not “representatives.” Once 

section 2(b)’s purpose is understood, much of Petitioners’ 

search for legislative history dealing with “intent to create an 

exception to the scope of the access protection of old section 2” 

becomes pointless. Section 2(b) is simply different from the 

old section 2. 

Alternatively, if judge are somehow representatives, 

Petitioners are still not entitled to relief because district judges 

in Texas are single office holders, like a governor, rather than 

members of multi-member bodies such as legislators. District 

judges do not deliberate collegially, like legislators. Thus, the 

underlying representative theories that permit replacing at-large 

legislators with single member district legislators simply do not 

apply in the context of a solo decisionmaker, such as a district 

judge. 

Finally, the Court should adopt one of the two 

preceding theories because if the Court determines that district 

judges are representatives — and representatives who, like 

legislators, can be reapportioned without altering the 

fundamental nature of their office — then the Court must 

address serious constitutional concerns over the validity of  



  

10 

section 2, as applied. First, the creation of a constitutionally 

valid judicial system, one that comports with the numerous due 

process and criminal procedure constitutional requirements, 

would require a federal intrusion into core state sovereign 

activities to an extent that would violate principles of federalism 

and the guaranty clause. Doing this on the belief that judges 

are representatives and should be treated like political 

representatives offends notions of separation of powers. 

Finally, if these more specific attacks should fail, the Court 

must confront the question whether section 2 was 

constitutionally adopted in the first place. 

This Court tries, when possible, to avoid consideration 

of constitutional issues. Here, especially when there is a viable 

and compelling alternative, the Court can resolve this case 

simply by reading the statute. Section 2(b) applies to 

representatives; judges are not representatives. 

ARGUMENT 

I. DISTRICT JUDGES ARE NOT 
REPRESENTATIVES AND THEREFORE 
WERE NOT INCLUDED WITHIN THE 
SCOPE OF THE EXTENSION OF 
SECTION 2 

A. The 1982 Amendments to Section 2 
Added Both a Results Test and a 
Dilution Remedy 

It is widely understood that the 1982 amendments to 

section 2 were a congressional response to this Court’s 

opinions in City of Mobile v. Bolden, 446 U.S. 55 (1980). 

This is often stated in terms of a congressional attempt to 

replace an intent standard with a results standard in section 2. 

   



11 

What Petitioners completely ignore — and what is crucial for 

this case — is that Congress also supplemented section 2 to 

protect against dilution of voting rights, as well as against 

impairing access to the ballot. 

By ignoring the second aspect of the amendment, 

Petitioners are able to mischaracterize the thrust of the 1982 

amendments as simply altering the proof standard and thereby 

equating the substantive reach of the pre- and post-amendment 

section 2. Petitioners thus improperly transform the question 

before the Court to whether the 1982 amendments 

inadvertently excluded judges from the unquestioned coverage 

of the pre-amendment section 2. In fact, when the dual nature 

of the 1982 amendments is considered, the issue is whether the 

addition of new substantive coverage reached far enough to 

include judges. Because Petitioners’ fundamentally erroneous 

perspective permeates their argument, Judge Entz addresses it 

even before considering whether judges are included in the 

plain meaning of “representative.” 

City of Mobile involved attacks under section 2, the 

Fifteenth Amendment, and the Fourteenth Amendment. Id. at 

58. This Court’s distinct treatment of each attack holds the key 

to understanding the 1982 amendments to section 2. The 

plurality initially ruled that section 2 was coterminous with the 

Fifteenth Amendment. Id. at 60-61 (Part II). It then addressed 

the Fifteenth Amendment claims and held first, that a Fifteenth 

Amendment claim requires a showing of discriminatory intent, 

id. at 61-63, and second, that there was no showing of any 

abridgment of the right to access to the ballot and therefore no 

Fifteenth Amendment violation: “Having found that Negroes  



  

12 

in Mobile ‘register and vote without hindrance,’ the District 

Court and the Court of Appeals were in error in believing that 

the appellants invaded the protection of that Amendment in the 

present case.” Id. at 65. Thus, plaintiffs lost under the 

Fifteenth Amendment not because of the heightened standard 

of intent, but because they did not show any impairment of 

their rights to access to the ballot.!! The plurality then 

  

11This view of the Fifteenth Amendment as protecting only access to the 
ballot is consistent with this Court’s longstanding view of that 
Amendment’s reach. Beginning in companion cases Guinn v. United 
States, 238 U.S. 347 (1915), and Myers v. Anderson, 238 U.S. 368 
(1915), the Court outlawed the application of “grandfather clauses” that 
exempted from literacy tests those persons either entitled to vote prior to 
the passage of the Fifteenth Amendment or those who were lineal 
descendants of persons entitled to vote prior to such time. In both cases, 
passage of the literacy tests were a precondition to voting. Thus, the 
grandfather clauses were prohibited by the Fifteenth Amendment because 
they operated in conjunction with the literacy test to deny black citizens 
access to the polls. 

Likewise, onerous procedural requirements that effectively 
handicapped the black franchise are prohibited by the Fifteenth 
Amendment. In Lane v. Wilson, 307 U.S. 268 (1939), the Court struck 
down an Oklahoma law that perpetually disenfranchised all those citizens 
who failed to register to vote in a short eleven day period in 1916. The 
exception for failure to register was for those who had voted in 1914. Of 
course, blacks had not voted in 1914 because they were barred from the 
polls by the discriminatory application of literacy tests. 

In Smith v. Allwright, 321 U.S. 649 (1944), and Terry v. 
Adams, 345 U.S. 461 (1953), the Court outlawed all-white primaries, 
pursuant to which blacks were prevented from voting in the controlling 
parties’ primary, but were allowed to vote in the general election in which 

the victor of the all-white primary ran unopposed. In Gomillion v. 
Lightfoot, 364 U.S. 339 (1960), the Court struck down a racial 

gerrymander that fenced the black residential area out of the city limits, 
rendering them ineligible to vote in city elections. Finally, in South 
Carolina v. Katzenbach, 383 U.S. 301 (1966), the Court upheld the 
literacy test ban, as well as other provisions of the Voting Rights Act that 
attempted to protect the physical casting of ballots, as an appropriate 
(continued on next page) 

   



13 

considered plaintiffs’ dilution attack on the at-large system, but 

only in its discussion of equal protection under the Fourteenth 

Amendment. Id. at 65-80 (Part IV).12 

Thus, the ruling in City of Mobile that section 2 was 

coterminous with the Fifteenth Amendment affected section 2 

in two ways: (1) it restricted section 2 to intentional 

discrimination, and (2) it restricted section 2 to impaired access 

to the ballot claims under the Fifteenth Amendment, and 

excluded coverage for dilution claims under the Fourteenth 

Amendment. Congress was well aware of this second 

restriction on section 2 when considering the 1982 

amendments and intended to alter that limitation, as well as 

adopt a results test: 

Likewise, although the plurality [in City of Mobile] 
suggested that the Fifteenth Amendment may be limited 
to the right to cast a ballot and may not extend to claims 
of voting dilution (without explaining how, in that 
case, one’s vote could be “abridged”), this section 
without question is aimed at discrimination which takes 
  

(continued from previous page) 
exercise of congressional authority to protect minority access to the polls 
under the Fifteenth Amendment. 

12 Again, the plurality’s view that qualitative vote dilution is prohibited 
by the Equal Protection Clause of the Fourteenth Amendment, not by the 
Fifteenth Amendment, is consistent with this Court’s well-established 
reading of the Fourteenth Amendment. See, e.g., Fortson v. Dorsey, 379 

U.S. 433, 439 (1965); Reynolds v. Sims, 377 U.S. 533, 566 (1964). 
Guaranteed access is a Fifteenth Amendment protection; meaningful access 
springs from the Fourteenth Amendment. Hence, the Supreme Court’s 
analysis of claims that multi-member districts were being used invidiously 
to cancel out or minimize the voting strength of racial groups always has 
been an equal protection analysis. White v. Regester, 412 U.S. 755, 764 
(1973); Whitcomb v. Chavis, 403 U.S. 124, 142-44 (1971); Fortson v. 
Dorsey, supra, at 439.  



  

14 

the form of dilution, as well as outright denial of the 
right to register or to vote. 

S. REP. No. 97-417, 97th Cong., 2d Sess. 30 n.120 (1982), 

reprinted in 1982 U.S. CODE CONG. & ADMIN. NEWS 177, 

208 n.120. See also id. at 25 (acknowledging plurality’s 

reading of Fifteenth Amendment as excluding dilution claims). 

Congress thus based the 1982 amendments on both the 

Fourteenth and Fifteenth Amendments. See id. at 18, 27, 39. 

Congress plainly drafted the 1982 amendments to 

section 2 to accomplish both of its remedial goals in light of 

City of Mobile. In what is now subsection (a), Congress 

added “results” language. Congress also added subsection 

(b), which created a dilution remedy in section 2. The question 

raised by this case, then, is whether Congress included judges 

within the scope of the dilution remedy it added in the 1982 

amendments to section 2. 

B. Judges Are Not Included in the Plain 
Language of Section 2(b) 

In his majority opinion in LULAC v. Clements, 914 

F.2d 620 (5th Cir. 1990) (en banc), Judge Gee analyzed the 

meaning of Section 2(b) of the Voting Rights Act using the 

plain language of the section. Judge Entz will not attempt to 

improve on Judge Gee’s lucid demonstration that the plain 

meaning of “representative” does not include judges. In 

concluding that Congress could not have intended to include 

judges within the definition of “representatives,” Judge Gee 

wrote that “[gliven the mutual exclusiveness of the two terms, 

to suggest that Congress chose ‘representatives’ with the intent 

of including judges is roughly on a par with suggesting that the 

« 
™ 

   



15 

term night may, in a given circumstance, properly be read to 

include day.” Id. at 628-29 (emphasis in original).l3 Ask 

people on the street; they will, to a person, say “judge” is 

different than “representative.” 14 

Holding that judges are not representatives still 

provides ample protection for minority voting rights in judicial 

elections. First, any act that is intentionally dilutive is directly 

actionable under the Fourteenth Amendment. Second, any 

action that results in minorities having diminished access to the 

ballot in judicial elections is actionable under section 2(a). 

Thus, a plain reading of the statute provides a workable result, 

without resorting to the quagmire of legislative history. 

Resorting to legislative history to find a gloss for the 

plain import of a statute can be unreliable, since it can be 

manipulated by any legislator who takes the time to express his 

or her views on the record as to what the statute means. Such 

statements are not ratified by Congress when it passes the bill, 

and, in reality, are rarely known by people who vote for the 

bill. “[I]Jt must be assumed that what the Members of the 

House and Senators thought they were voting for, and what 

  

13Holding that judges are elected representatives, like legislators, also 
would make a mockery of notions of separation of powers. 

14The dictionary defines “representative” as: “one that represents another 

or others in a special capacity. . . one that represents a constituency as a 
member of a legislative or other governing body.” WEBSTER’S THIRD 
NEW INTERNATIONAL DICTIONARY 1926 (1976). The word has no 

peculiar legal definition: “A person chosen by the people to represent 
their several interests in a legislative body; e.g. representatives elected to 
serve in Congress from a state congressional district.” BLACK’S LAW 
DICTIONARY 1302 (6th ed. 1990).  



  

16 

the President thought he was approving when he signed the 

bill, was what the text plainly said, rather than what a few 

Representatives, or even a Committee Report, said it said.” 

United States v. Taylor, 487 U.S. 326, 108 S. Ct. 2413, 2424 

(1988) (Scalia, J., concurring in part). Therefore, the 

legislative history is not to be considered by a court at all 

unless the language of the statute is so ambiguous the court is 

at a loss to make sense of it. The judiciary is to “interpret laws 

rather than reconstruct legislators’ intentions. Where the 

language of those laws is clear, we are not free to replace it 

with unenacted legislative intent.” INS v. Cardoza-Fonseca, 

480 U.S. 421, 452-53, (1987) (Scalia, J., concurring). 

Although in years past the Supreme Court may have 

appeared to deviate from this doctrine at times, this Court’s 

more recent decisions have reaffirmed this standard. In United 

States v. Monsanto, 109 S. Ct. 2657 (1989), one party sought 

to persuade the Court through the use of legislative history. 

The Court responded: “In determining the scope of a statute 

we must look first to its language.” Id. at 2662. The Court 

then rejected the tender of postenactment legislators’ statements 

explaining congressional intent behind the statute, and stated: 

“As we have noted before, such postenactment views ‘form a 

hazardous basis for inferring the intent’ behind a statute; 

instead Congress’ intent is best determined by looking to the 

statutory language it chooses.” Id. at 2663 (citations omitted). 

Judge Higginbotham, in his concurrence below, 

reached into the legislative history only after he determined that 

an ambiguity arose because he thought elected judges were 

“representatives” to the extent that electoral accountability 

   



17 

inherently implies some degree of representation. LULAC, 

914 F.2d at 636. Equating accountability with representation, 

however, is a mistake. 

Accountability deals with who hires and fires; 

representation deals with the function of the position, whether 

one person speaks and acts for another. In many instances the 

two concepts overlap. For example, a Member of Congress is 

accountable to his or her constituents and also represents those 

constituents. The coincidence of these two concepts, however, 

is not automatic. For example, prior to the Seventeenth 

Amendment, senators were selected by state legislators; the 

senators so selected nonetheless did not “represent” the state 

legislators, but rather the people of the state. The honorable 

Justices of this Court are appointed by the President and can be 

removed by the Senate; no one would contend, however, that 

the Justices “represent” either the President or the Senate.1® 

In short, Judge Higginbotham erred. The fact that 

Texas’ judges are elected in no sense creates an ambiguity 

regarding whether they are in some sense “representatives” of 

Texas voters. Absent that ambiguity, there is no basis for 

exploring the legislative history of section 2, either from 1965 

or from 1982. “Representative” is a simple word with a 

  

15Conversely, one can represent without being elected. “In its original 
conception, representation did not always require voting, as can be shown 
in the Declaration of Independence. The body of this document consists of 
a long bill of particulars against George III which would be unnecessary 
and misleading if representation required voting.” Mansfield, Impartial 
Representation, in REPRESENTATION AND MISREPRESENTATION 106 (R. 

Goldwin ed. 1968).  



  

18 

meaning plain enough to require no further inquiry. The Court 

need go no further than the face of the statute. 

C. Neither Rules of Construction Nor 
Legislative Intent Can Transform 
Judges into Representatives 

As discussed above, there is no need for this Court to 

turn to evidence of legislative intent or apply canons of 

statutory construction because the text of the statute itself is 

clear.1®6 Faced with the awkward fact of the statutory 

language, Petitioners and amicus the United States prefer to 

discuss legislative history and canons of construction. One 

fact apparent from the legislative history is that Congress 

simply did not give much consideration to the prospect that 

  

161f the Court is inclined to apply canons of construction, Judge Entz 
commends the one used below by Judge Gee: 

In 1982, as of the time of Congress’s adoption of the Court’s 

language from White, at least fifteen published opinions by 
federal courts . . . had held or observed that the judicial office is 
not a representative one, most often in the context of deciding 
whether the one-man, one-vote rubric applied to judicial 
elections. Not one held to the contrary. . . 

. . . By the settled canon of construction, we must 
presume that Congress was aware of the uniform construction 
which had been placed by the courts on the term that it selected, a 
construction by which the judicial office was not deemed a 
“representative” one. 

LULAC, 914 F.2d at 626, 628 (citations and footnote omitted). See also 
Wells v. Edwards, 347 F. Supp. 453, 455 (M.D. La. 1972), aff d, 409 
U.S. 1095 (1973) (“Judges do not represent people, they serve people.”); 
Hatten v. Rains, 854 F.2d 687, 696 (5th Cir. 1988) (“Judges, even if 
elected, do not serve a primarily representative function.”). 

   



Io 

litigants might some day claim that judges are “representatives” 

subject to section 2(b). Thus, the legislative history debate 

turns into a procedural question: Who must “prove” Congress’ 

intent regarding coverage of judges? 

Petitioners attempt to shift the burden and require 

Respondents to show that Congress intended to exclude 

judges. Normally a party seeking relief under a statute has the 

burden of showing that the statute applies. Even more to the 

point, as discussed above, section 2(b) was an extension of 

section 2 to add a dilution test. Given that context, Petitioners 

should bear the burden of showing that when Congress 

extended section 2 to add a dilution test, Congress intended the 

extension to reach judges. 

In a related form of that argument, Petitioners urge a 

syllogism on the Court: (1) amended section 2 covers 

everything old section 2 covered; (2) old section 2 covered 

judges; therefore (3) new section 2 covers judges.l?” The 

syllogism is defective because the major premise is wrong. 

Section 2(b) facially has diminished scope from the old 

section 2. 

The old section 2 (and the current section 2(a)) cover all 

voting; section 2(b) covers only voting related to electing 

people. For example, old section 2 and current section 2(a) 

would cover a referendum or a vote on a state constitutional 

amendment, while section 2(b) facially does not cover those. 

Thus, even prior to addressing the question whether judges are 

  

17This argument proceeds wholly independently from the statutory 
language, which seems an unusual method of statutory construction.  



  

20 

“representatives” we know that the syllogism fails — we know 

the scope of section 2(b) is different than the scope of old 

section 2 and simply must determine how much different.!8 

Finally, in an attempt to gain from the legislative silence 

on the subject, the United States urges this Court to draw a 

negative inference from the fact that Congress did not explicitly 

say much about judges. Brief for the United States at 32 & 

n.28, Chisom v. Roemer, Nos. 90-757 and 90-1032. Hinting 

that detective skills are needed to ascertain Congress’ intent, 

the United States relies upon the principle of “the dog that did 

not bark,” citing A. DOYLE, Silver Blaze, in THE COMPLETE 

SHERLOCK HOLMES (1927).19 The United States should have 

consulted a different Holmes: “You must not alter words in the 

  

18yiewed in this framework, Petitioners’ reliance on the broad definition 
of voting in section 14(c)(1) is even less pertinent, particularly given the 
fact that section 2(b) does not use the term. Also, by their logic, a 
provision that referred to “voting for dogcatcher” would apply to judges 
because of the broad definition of “voting.” Likewise their reliance on the 
scope of section 35 is pointless. The issue is not the scope of old section 
2, of new section 2(a), of section 5, or of section 14(c)(1). The issue is, 
simply, whether judges are “representatives” under section 2(b). 

19The majority opinion in the very case the United States cites 
specifically rejected drawing that negative inference: 

[I]t would be a strange canon of statutory construction that would 
require Congress to state in committee reports or elsewhere in its 
deliberations that which is obvious on the face of a statute. In 
ascertaining the meaning of a statute, a court cannot, in the 
manner of Sherlock Holmes, pursue the theory of the dog that did 
not bark. 

Harrison v. PPG Indus., Inc., 446 U.S. 578, 592 (1980). 

   



21 

interest of imagined intent . . ..” United States v. Riggs & 

Co., 203 U.S. 136, 27 S. Ct. 39, 40 (1906) (Holmes, J.).20 

II. A SECTION 2(b) ATTACK DOES NOT LIE 
AGAINST TEXAS’ DISTRICT COURTS 
BECAUSE THEY ARE SINGLE MEMBER 
DISTRICTS 

Even if judges were to be “representatives” under the 

amended section 2(b), Petitioners’ dilution claim would still be 

flawed because district courts are already single member 

districts. Petitioners characterize this argument as an improper 

creation of a single officeholder exception out of the whole 

cloth. This rhetorical ploy is similar to their demand that 

Respondents prove that Congress intended to exclude judges 

from the amended section 2. Rather than being a judge-made 

exception to the statute, it is simply an inherent limitation in the 

logic of a dilution attack on an at-large position. See Butts v. 

City of New York, 779 F.2d 141, 148 (2d Cir. 1985). Unlike 

Petitioners, amicus the United States acknowledges the truth of 

this observation. Brief of the United States at 12-15. Judge 

Entz will not reiterate the United States’ argument. 

The United States errs, however, in its assessment of 

how one determines whether an office is a single member 

office. According to the United States, one simply looks 

around to see how many of those offices exist in a jurisdiction. 

  

20S¢e also LULAC , 914 F.2d at 630 (“[T]his is a case for applying the 

canon of construction of the wag who said, when the legislative history is 

doubtful, go to the statute.”) (quoting Greenwood v. United States, 350 

U.S. 366, 374 (1956) (Frankfurter, J.)).  



  

22 

The United States overlooks the very logic that justifies the use 

of single member districts in a legislative body. 

The policy underlying single member districts in a 

legislative context is to permit each discrete group in the larger 

community to have a representative who will articulate that 

group’s needs and interests in the process of collective decision 

making. Through the political process, a collective decision 

will be reached that properly reflects a balance of all of the 

interests in the community. That model is simply lacking for 

Texas’ district courts. 

The trial proof showed that Texas’ district courts are 

not collegial bodies. . LULAC, 914 F.2d at 647 

(Higginbotham, J., concurring)(referencing Texas Supreme 

Court Chief Justice Phillips’ testimony at trial). Each court 

operates autonomously from the other courts in handling its 

docket and performing its judicial functions. Unlike appellate 

courts, there is no joint deliberation. See also LULAC, 914 

F.2d at 649 (Higginbotham, J., concurring). The Voting 

Rights Act “cannot be made to authorize allocating judges by 

simply restating the office of a district judge as a shared office 

or by asserting that the ‘function’ of an office is not relevant. 

Saying that district judges in fact share a common office that 

can be subdistricted does not make it so.” Id.2! 
  

21petitioners make two contrary arguments. First, they argue that this 

analysis improperly makes relief to voters depend on the nature of the 
office. In fact, however, it is the petitioners who chose to make a dilution 

attack that is inherently limited to multimember offices. Given that 
inherent limitation, it is plainly necessary to look at the office under 

attack at least enough to determine whether the limitation is at issue, as it 

is here. 

(continued on next page) 

   



  

23 

III. THIS COURT SHOULD NOT CONSTRUE 
SECTION 2(b) TO REACH TRIAL JUDGES 
BECAUSE THAT WOULD REQUIRE THIS 
COURT TO ADDRESS SERIOUS AND 
FUNDAMENTAL CONSTITUTIONAL 
QUESTIONS 

If section 2(b) were construed to apply to Texas’ 

district judges, this Court would have to face difficult 

constitutional questions regarding the validity of section 2(b) 

so applied. Of course, the existence of these constitutional 

questions is in itself a reason to construe section 2 not to apply 

to district court judges. E.g., Crowell v. Benson, 285 U.S. 

22, 62 (1932). Three serious constitutional questions here 

argue against construing section 2(b) to apply to Texas’ district 

judges. First, such an application would be an unconstitutional 

intrusion by the federal government into the intrinsically 

sovereign aspects of state government. Second, it would 

unconstitutionally blur the line of separation between judges 

and the representative arms of government. Finally, if not 

  

(continued from previous page) 
Second, they argue that contrasting multi versus single member 

offices improperly imports a remedy issue into the liability phase of the 
case; remedies other than single member offices are possible, such as 
cumulative voting, they urge. As discussed below, experimental remedies 
like cumulative voting probably are not permissible judicial remedies. 
See infra note 26. Moreover, this inquiry is not an impermissible 
injection of remedy in the liability phase, but rather a mandatory inquiry 
to determine whether the attacked feature -- county-wide election -- is what 
causes the allegedly dilutive circumstance. Cf. Thornburg v. Gingles. 
Had Petitioners attacked a different feature of the system -- such as a 
majority vote requirement, had Texas used one -- no such inquiry would be 
needed. Having chosen to make a dilution attack on the county-wide 

elections, Petitioners should not now object to the inquiry needed to 
evaluate that attack.  



  

24 

construed differently or held unconstitutional as applied, this 

Court would have to consider the general question whether the 

1982 amendments to section 2 were constitutional. “A statute 

must be construed, if fairly possible, so as to avoid not only 

the conclusion that it is unconstitutional, but also grave doubts 

upon that score.” United States v. Jin Fuey Moy, 241 U.S. 

394, 36 S. Ct. 658, 659 (1916) (Holmes, J.). 

A. Application of Section 2(b) to Texas’ 
State Judiciary Would 
Unconstitutionally Impinge on 
Intrinsically Sovereign Matters 

1. States Retain a Residual Core of Sovereignty Into 

Which the Federal Government Cannot Intrude. — For a 

federal court to dismantle Texas’ judicial system would be an 

unconstitutional intrusion by the federal government into 

matters of paramount importance to the sovereign state 

government, in violation of the Tenth Amendment, the 

Guaranty Clause, and fundamental principles of federalism.22 

The judiciary is an essential governmental function of 

the states, and dismantling it “would hamper the state 

government’s ability to fulfill its role in the Union and 

endanger its separate and independent existence.” United 

Trans. Union v. Long Island RR. Co., 455 U.S. 678, 687 

(1982); see also Garcia v. San Antonio Metropolitan Transit 
  

225 udge Entz acknowledges that the 14th and 15th Amendments place 
limitations on the power of states; they did not abolish federalism, 
however. “Whenever constitutional concerns . . . come in conflict . . . it 
is and will remain the duty of this Court to reconcile these concerns in the 
final instance.” Garcia v. San Antonio Metro. Transit Author., 469 U.S. 
528, 589 (1985) (O’Connor, J., dissenting). 

   



25 

Authority, 469 U.S. 528, 549 (1985) (although overturning 

National League of Cities, the Court recognizes that states 

occupy a special position in the constitutional system and they 

do retain a significant amount of sovereign authority); Coyle v. 

Smith, 221 U.S. 559 (1911) (noting restrictions on Congress’ 

ability to prescribe fundamental details of state government 

such as location of state capitol). As this Court declared in 

Texas v. White, 74 U.S. 700 (1869), “the preservation of the 

States, and the maintenance of their governments, are as much 

within the design and care of the Constitution as the 

preservation of the Union and the maintenance of the National 

Government.” Id. at 725. Further, as Justice Black noted in 

his majority opinion in Oregon v. Mitchell, 400 U.S. 112 

(1970): 

No function is more essential to the separate and 
independent existence of the States and their 
governments than the power to determine within the 
limits of the Constitution the qualifications of their own 
voters for state, county, and municipal offices and the 
nature of their own machinery for filling local public 
offices. 

Id. at 125, 

Consequently, the federal government should tread 

lightly, granting substantial leeway to the states’ establishment 

and maintenance of judicial systems. As discussed below, see 

infra Part III.A.2, implementation of a remedy will involve the 

federal courts in dictating the finest details of state judicial 

structure and administration, including jury selection, 

jurisdiction, venue, and systems of judicial specialization. As 

Judge Higginbotham stated, “subdistricting would work a  



  

26 

fundamental change in the scheme of self governance chosen 

by the State of Texas, for it would change the authority behind 

the decision-making body of Texas Courts — and in doing so 

it would retard, not advance the goals of the Voting Rights 

Act.” "'LULAC, 914 F.24 at 6351 (Higginbotham, J., 

concurring). 

Although states must defer in many respects to the 

federal government, states still have a residue of sovereignty 

that the federal government cannot disturb. To force 

wholesale, untested and perhaps unworkable changes upon a 

state judicial system based upon the sociologically distorted, 

mathematical vote dilution proof Petitioners offered, would 

violate the Tenth Amendment, the Fourteenth Amendment, the 

Guaranty Clause, and fundamental principles of federalism and 

separation of powers.23 

2. Application of Section 2(b) to State Judges Would 

Impermissibly Intrude on the Operation of the State Judiciary. 

— The current system of judicial administration in Dallas 

County supports fundamental state interests. A remedy in this 

case necessarily must involve either altering fundamental 

characteristics of that system, such as county-wide venue and 

  

23Congress’ ability to interfere with the operation of state government 
under the authority of the Fourteenth or Fifteenth Amendment is even 
more questionable since section 2 is outside the scope of the amendments’ 
literal protection. The Fourteenth and Fifteenth Amendments protect only 
against intentional discrimination. See City of Mobile, supra. The 
amended section 2, in contrast, purportedly reaches unintentional action 
that affects the results in elections. If that is a permissible exercise of 
congressional power to begin with, see infra, it surely is at the nadir of 
Congress’ power, and the power of a statute to displace sovereign state 
governmental functions must be correspondingly reduced. 

   



27 

jury selection, or attempting to preserve those features while 

changing elections to smaller than county-wide districts. The 

District Court’s proposed interim remedy followed this latter 

approach. In either case, the remedy would entail immense 

intrusion into the finest details of Texas’ administration of its 

judicial system and would be unconstitutional. 

Cases filed in Dallas County are randomly assigned to 

the various judges’ dockets. By adopting smaller than county- 

wide districts while preserving county-wide jurisdiction and 

venue, the Petitioners would ensure that residents of Dallas 

County would have cases heard by judges in whose elections 

they cannot vote. In a “pure” system with thirty-seven single 

member judicial districts, 36/37 of the voters in Dallas County 

are thus effectively disenfranchised from voting for any given 

judge.?4 In such a case, the voters are unconstitutionally 

disenfranchised, just as the nonproperty owners in Oregon v. 

Mitchell, 400 U.S. 112 (1970), were unconstitutionally 

prevented from voting in a municipal bond election because of 

their substantial and direct interest in the matter voted upon. 

See also City of Phoenix v. Kolodziejski, 399 U.S. 204, 213 

(1970) (exclusion of nonproperty owners from elections 

approving obligation bonds violated Equal Protection Clause). 

In an attempt to advance the voting rights of a minority, 

  

24petitioners suggest that the use of substitute “visiting” judges in some 
circumstances indicates the policy for voting for judges in Texas is weak. 
They ignore the fact that visiting judges are used only at the direction of 
the elected presiding judge, TEX. GOV'T CODE ANN. § 74.056, thus 
electoral accountability is retained. They also ignore the fact that parties 
have an absolute right to object to the assignment of a visiting judge in a 
case. TEX. GOV'T CODE ANN. § 74.053.  



  

28 

Petitioners’ solution would unconstitutionally deprive most 

voters of their “judicial” voting rights. 

A pure single member district plan also creates 

difficulties in allocating newly created courts in between the 

decennial censuses, as illustrated when the district court below 

imposed its interim single member district plan. The 

allocational problem in Dallas County was dividing thirty- 

seven judicial positions among a different number of state 

legislative districts. At the urging of Petitioners and the 

Attorney General, the District Court gave the “extra” judicial 

seats to those legislative districts with the greatest number of 

minority voters. Thus, judges were allocated in a preferred 

manner to minority districts. This is surely one of the most 

flagrant violations of equal protection ever committed in the 

name of equal rights. The same kind of allocation problem 

inevitably will occur under any plan to create additional judicial 

districts between the censuses in response to increased case 

load.?5 

  

25The interim plan also unconstitutionally allocated courts of the various 
specializations among the various judicial districts; it permitted the county 
administrative judge to allocate specialization after the election, however 
he or she sees fit. Thus, some voters were deprived of a civil judge, some 
of a juvenile judge, and so on. Absent some scheme of four concurrent 
sets of overlapping single member districts, no single member district 
plan can avoid this unconstitutional allocation of specialized courts. 
Moreover, under the specifics of the interim plan, the discretion of the 
administrative judge to assign specializations apparently was wholly 
unconstrained, which also surely violates due process and equal protection. 
See Hurtado v. California, 110 U.S. 516, 535-36 (1884). It also was 
impractical in that a successful civil lawyer judicial candidate with no 
criminal experience could end up assigned to a criminal bench. 

   



29 

Finally, jury pools in Dallas County are drawn from the 

entire county. This system complies with an accused’s right to 

trial before a jury from the judicial district in which the offense 

arose. U.S. CONST. AMEND. VI; United States v. Dickie, 775 

F.2d 607 (5th Cir. 1985). By creating an interim plan in 

which the districts were smaller than county-wide, but jury 

selection remained county-wide, the District Court created a 

system of jury selection that is constitutionally impermissible 

for criminal cases. Inevitably, under a system of smaller than 

county-wide districts, an accused from one Dallas County 

district will be forced to stand trial before a jury containing 

persons from four or five different Dallas districts for a crime 

committed in a completely different district. In such a case, the 

accused would be denied his constitutional rights. Id. 

The only alternative to avoiding those problems is to 

alter the current systems of court specialization, jury selection, 

venue, and court administration, which presents the 

constitutional problem of undue intrusion into core features of 

state government.2® These established systems have evolved 
  

26petitioners suggest that other alternative remedies, such as cumulative 
or limited voting would avoid these infirmities. What they neglect is that 
courts’ remedial powers in Voting Rights Act cases do not extend to 
imposing experimental forms of voting upon a state. See Wise v. 
Lipscomb, 437 U.S. 535, 540-41 (1978) (noting “requirement that federal 
courts, absent special circumstances, employ single-member districts when 
they impose remedial plans”); Martin v. Mabus, 700 F. Supp. 327, 336- 
37 (S.D. Miss. 1988) (declining to impose limited voting plan court 
viewed as “experimental”). Admittedly, it is possible that the State of 
Texas could invent some entirely different form of judicial selection and 
administration that would avoid the constitutional pitfalls of a single 
member remedy; the need for such invention, however, simply heightens 
the unconstitutional intrusion into core concerns of a sovereign state 
government that application of the statute to the judiciary would have.  



  

30 

locally through years of experience. The systems work, and 

are of vital importance to the efficient and orderly 

administration of justice in Dallas County. Although states’ 

rights are limited by the Civil War amendments and by other 

powers expressly delegated to the federal government, the 

states do retain the rights to govern themselves with respect to 

the basic elements of governance. Recent case law does not 

explicitly list the states’ fundamental rights, but surely the 

power to establish and maintain an independent judiciary is 

among them. See supra Part III.A.1.27 Texas has over the 

years developed an intricate machinery for the administration of 

justice that fully complies with all constitutional requirements. 

Simply yanking out a part or two — countywide elections — 

produces a machine that does not work, i.e., that is not 

constitutional. The alternative of redesigning the system 

entirely is not a legitimate task for the federal government or a 

federal judge.28 
  

27The United States suggests that the proper way to account for these 
competing interests is simply to incorporate those concerns into the 
“totality of circumstances” that the district court considers in determining 
liability under section 2. See Brief of the United States 17-28. But the 
United States forgets that the “Senate Factors” include assessing the 
weight of state policy underlying the challenged practice, and the district 
court here at least purported to consider that factor. Urging that such 
concemns should be treated as compelling is not substantially different from 
urging, as Judge Entz does, that they are so compelling that interference 
with them rises to the level of a constitutional concern. In either case, the 
Voting Rights Act is not sufficiently forceful to displace those important 
state policies. 

28<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 trenching as is contended for today should therefore demand a very 
clear statement indeed.” LULAC, 914 F.2d at 630-31. 

   



31 

B. Applying Section 2(b) to Judges 
Violates Principles of Separation of 
Powers 

The Petitioners’ suggested application of Section 2(b) 

to state district judges would abolish substantial distinctions 

between the executive, legislative and judicial branches. That 

is contrary to the finely-honed balance of powers (and counter- 

balancing of the natural human desire for power, if left 

unchecked) that the federal constitution embodies. See, e.g., 

THE FEDERALIST No. 9, at 51 (A. Hamilton) (J. Cooke ed. 

1961); id. No. 47, at 323 (J. Madison); id. No. 48, at 335 (J. 

Madison). Texas had a similar, clear separation of powers 

ingrained in its organic framework. See TEX. CONST. art. II, 

$1. 

At the core of every state’s government is the judiciary. 

Whether appointed or elected, the judiciary is the arbiter of the 

citizens’ disputes, the forum for victims of crime, and the 

protector of its citizens’ fundamental rights and freedoms. 

While the legislative and executive branches are in perpetual 

flux, according to the rough and tumble political whims of the 

times, the judiciary is the only constant. See LULAC, 914 

F.2d at 625-26. The legislative and executive branches 

rightfully may be partial, but as Judge Gee stated, “the 

judiciary serves no representative function whatever: the judge 

represents no one.” Id. at 625. Judge Higginbotham in his 

concurring opinion in LULAC explained that “requiring  



  

32 

subdistricting for purposes of electing district judges, unlike 

other offices, would change the structure of the government 

because it would change the nature of the decision-making 

body and diminish the appearance if not fact of its judicial 

independence — a core element of a judicial office.” LULAC, 

914 F.2d at 650 (Higginbotham, J., concurring). 

The Petitioners not only would redefine judges as 

“representatives” but would classify particular judges as 

accountable to the majority sentiment in small, legislative 

subdistricts from which they were to be elected. Such a result 

is directly contrary to the foundation of our system of 

government in which “the legislative, executive and judiciary 

departments should be separate and distinct, so that no person 

should exercise the powers of more than one of them at the 

same time.” THE FEDERALIST NO. 48, at 335 (J. Madison)(J. 

Cooke ed. 1961). Texas incorporates the same concept. See 

TEXAS CONST. art. II, § 1. Congress surely did not mean to 

strike from Texas’ “separation of powers” the key concept so 

carefully woven in the federal constitution and extended to the 

states through the Guaranty Clause.?’ 

Judge Gee, quoting Professor Eugene Hickok, 

accurately summarizes Judge Entz’s argument: 

The judiciary occupies a unique position in our system 
of separation of powers, and that is why the job of 
judge differs in a fundamental way from that of a 
  

29«judicial power” as used in Texas’ constitution, see Art. V § 1, does not 
mean to be a representative of the people. That is what the state Senators 
and Representatives do in making laws. In fact, Article II specifically 
provides that no person associated with one branch “shall exercise any 
power properly attached to either of the others.” 

   



  

33 

legislator or executive. . . . If a member of congress 
serves to make the law and a president to enforce it, the 
judge serves to understand it and interpret it. In this 
process, it is quite possible for a judge to render a 
decision which is directly at odds with the majority 
sentiment of the citizens at any particular time. . . . 
Indeed, it can be argued that the quality most needed in 
a judge is the ability to withstand the pressures of 
public opinion in order to ensure the primacy of the rule 
of law over the fluctuating politics of the hour. 

LULAC, 914 F.2d at 626 (quoting Hickok, Judicial Selection: 

The Political Roots of Advice and Consent in JUDICIAL 

SELECTION: MERIT, IDEOLOGY AND POLITICS 5 (1990), 

emphasis added). 

Cc. The 1982 Amendments to Section 2 
Were Not A Valid Exercise of 
Congress’ Authority 

The Supreme Court has never considered whether the 

1982 amendments to Section 2 were a valid exercise of 

congressional authority. Prof. Lawrence Tribe, never one to 

be mistaken for a conservative constitutional scholar, notes that 

there is real doubt on that question. L. TRIBE, AMERICAN 

CONSTITUTIONAL LAW § 5-14, at 340 (2d ed. 1988). 

Congress itself seriously questioned the constitutionality of the 

Section 2 amendments. In fact, the Subcommittee on the 

Constitution concluded in its report that the proposed 

amendment was unconstitutional for three reasons. First, 

Congress cannot outlaw discriminatory results under the 

Fifteenth Amendment, since the Supreme Court has stated that  



  

34 

only discriminatory intent was prohibited.30 Second, unlike 

Section 5, there was no fact finding by Congress that Section 2 

was necessary as a nationwide remedial measure. Without 

such a fact finding, Congress even questioned if Section 2 

could qualify as a “remedial” measure.3! Finally, Section 2 
  

30«To the extent . . . that the Supreme Court has construed the Fifteenth 
Amendment to require some demonstration of purposeful discrimination in 
order to establish a violation, and to the extent that Section 2 is enacted by 
Congress under the constitutional authority of the Fifteenth Amendment, 
the Subcommittee does not believe that Congress is empowered to 
legislate outside the parameters set by the Court, indeed by the 

Constitution.” 1982 U.S. CODE CONG. & ADMIN. NEWS 177, 342-43 
(COMMITTEE ON THE JUDICIARY’S SUBCOMMITTEE ON THE 

CONSTITUTION, REPORT ON S. 1992 TO AMEND THE VOTING RIGHTS 

ACT OF 1965, attached as exhibit to Additional Views of Senator Hatch, 
S. REP. NO. 417, 97th Cong., 2d Sess. 94 (1982)). 

31«“while proponents of the new results test argue that selected Supreme 
Court decisions exist to justify the expansive exercise of Congressional 
authority proposed here this subcommittee rejects these arguments. No 
Court decision approaches the proposition being advocated here that 
Congress may strike down on a nationwide basis an entire class of laws 
that are not unconstitutional and that involve so fundamentally the rights 
of republican self-government guaranteed to each state under Article IV, 

section 4 of the Constitution. 

“It must be emphasized again that what Congress is purporting to 
do in section 2 is vastly different than what it did in the original Voting 
Rights Act in 1965. In South Carolina v. Katzenbach, the Court 
recognized extraordinary remedial powers in Congress under section 2 of 
the Fifteenth Amendment. Katzenbach did not authorize Congress to 
revise the nation’s election laws as it saw fit. Rather, the Court there 
made clear that the remedial power being employed by Congress in the 
original Act was founded upon the actual existence of a substantive 
constitutional violation requiring some remedy . . . While Katzenbach and 
later City of Rome held that the extraordinary powers employed by 
Congress in section 5 were of a clearly remedial character, and therefore 
justified the extraordinary procedures established in section 5, there is 
absolutely no record to suggest that the proposed change in section 2 
involves a similar remedial exercise. Because section 2 applies in scope to 
the entire Nation, there is the necessity of demonstrating that the 
‘exceptional’ circumstances found by the Katzenbach court to exist in the 
covered jurisdictions in fact permeated the entire Nation (although again by 
(continued on next page) 

   



  

35 

has an unconstitutional retroactive effect.32 This Court, like 

the Subcommittee, should find that Section 2 is 

unconstitutional for those reasons. 

CONCLUSION 
For the reasons discussed above, Judge Entz requests 

that this Court affirm the decision of the Fifth Circuit and 

render judgment in Judge Entz’s favor. 

  

(continued from previous page) 
its very definition the concept of ‘exceptionality’ would seem to preclude 

such a finding). 

“There has been no such evidence offered during either the House 
or Senate hearings. Indeed, the subject of voting discrimination outside 
the covered jurisdictions has been virtually ignored during hearings in each 
chamber. Indeed as the strongest advocates of the House measure 
themselves argued, a proposed floor amendment to extend preclearance 
nationally was ‘ill-advised’ because no factual record existed to justify this 
stringent constitutional requirement.” Id. at 343-44. 

32«“Moreover, a retroactive results test of the sort contemplated in the 
House amendments to section 2 (the test would apply to existing electoral 
structures as well as changes in those structures) has never been approved 
by the Court even with regard to jurisdictions with a pervasive history of 
constitutional violations. In South Carolina v. Katzenbach, the 
prospective nature of the section 5 process (applicable only to changes in 
voting laws and procedures) was essential to the Court’s determination of 

constitutionality. This was closely related to findings by Congress that 
governments in certain areas of the country were erecting new barriers to 

minority participation in the electoral process even faster than they could 
be dismantled by the courts. Thus, even with regard to covered 
jurisdictions, the Court has never upheld a legislative enactment that 
would apply the extraordinary test of section 5 to existing state and local 
laws and procedures.” Id. at 344-45.  



36 

Respectfully submitted, 

*ROBERT H. MOW, JR. 
DAVID C. GODBEY 
BOBBY M. RUBARTS 
CRAIG W. BUDNER 

of HUGHES & LUCE 
1717 Main Street 
Suite 2800 
Dallas, Texas 75201 
(214) 939-5500 

ATTORNEYS FOR JUDGE 
F. HAROLD ENTZ 

*Attorney of Record for 
Judge Entz 

Of Counsel: 

SIDNEY POWELL 

of STRASBURGER & PRICE