Reply Brief of Appellant Dallas County

    IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

No. 90-8014 

  

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

Plaintiffs- Appellees, 

Vv. 

THE ATTORNEY GENERAL 
OF THE STATE OF TEXAS, et al., 

Defendants-Appellants 

  

On Remand From the 
United States Supreme Court 

  

REPLY BRIEF OF APPELLANT DALLAS COUNTY 
DISTRICT JUDGE F. HAROLD ENTZ 

  

Robert H. Mow, Jr., P.C. 
David C. Godbey 
Bobby M. Rubarts 
Craig W. Budner 

of HUGHES & LUCE, L.L.P. 

Of Counsel: 1717 Main Street 
Suite 2800 

Sidney Powell Dallas, Texas 75201 
STRASBURGER & PRICE (214) 939-5500 
901 Main Street 
Suite 4300 ATTORNEYS FOR 
Dallas, Texas 75202 DEFENDANT-APPELLANT 
(214) 651-4692 JUDGE F. HAROLD ENTZ 

October 24, 1991  



    
IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

No. 90-8014 

  

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

Plaintiffs- Appellees, 

Vv. 

THE ATTORNEY GENERAL 
OF THE STATE OF TEXAS, et al., 

Defendants-Appellants 

  

On Remand From the 
United States Supreme Court 

  

REPLY BRIEF OF APPELLANT DALLAS COUNTY 
DISTRICT JUDGE F. HAROLD ENTZ 

  

Robert H. Mow, Jr., P.C. 
David C. Godbey 
Bobby M. Rubarts 
Craig W. Budner 

of HUGHES & LUCE, L.L.P. 

Of Counsel: 1717 Main Street 
Suite 2800 

Sidney Powell Dallas, Texas 75201 
STRASBURGER & PRICE (214) 939-5500 
901 Main Street 
Suite 4300 ATTORNEYS FOR 
Dallas, Texas 75202 DEFENDANT-APPELLANT 
(214) 651-4692 JUDGE F. HAROLD ENTZ 

October 24, 1991 

 



TABLE OF CONTENTS 

TABLE OF AUTHORITIES 

I. THE COMPELLING STATE INTERESTS SUPPORTING 
TEXAS’ SYSTEM OF JUDICIAL ELECTIONS ARE SO 
STRONG, AS A MATTER OF LAW, THAT THEY 
PREVENT ANY HOLDING OF A VIOLATION OF 
SECTION 2 OF THE VOTING RIGHTS ACT 

A. Whether the Articulated State Interests Are 
Compelling Is A Question of Law, Not Fact . 

1. The Existence of a Compelling State Interest 
Is Always a Question of Law . 

. The Standard Urged by fpotives: is Unworkable 
and Unconstitutional : 

. Judge Entz’s Test Properly Accounts For The 
Possibility Of Less Intrusive Alternative 
Electoral Systems . a 

. Texas’ Interests Are Compiling U Under The 
Two-Part Test 

. Even Were Texas’ Interest Not Compelling, The 
District Court Must Still Be Reversed For A 
Proper Assessment of Texas’ Interest 

II. AN APPLICATION OF SECTION 2 TO TRIAL JUDGES 
WOULD BE UNCONSTITUTIONAL ao, 

III. THE DISTRICT COURT MISAPPLIED SECTION 2 

A. The District Court Rejected This Court's Test for 
Racially Polarized . ol 

B. The District Court Used the Wrong Baseline For 
Determining Degree of Minority Electoral Success 

C. The District Court's Finding Under The Tomliy 6 Of 
Circumstances Was Clearly Erroneous 

CONCLUSION 

CERTIFICATE OF SERVICE .  



TABLE OF A 

CASES 

Clark v. Community for Creative Non-Violence, 
468 U.S. 288 (1984) . 

Connick v. Myers, 
461 U.S. 138 (1983) . 

F.C.C.v. Pacifica Foundation, 
438 U.S. 726 (1978) . 

Garcia v. San Antonio Metro. Transit Auth., 
469 U.S. 528 (1985) . 

Grayned v. City of Rockford 
408 U.S. 104 (1972) . 

Gregory v. Ashcroft, 
111 S. Ct. 2395 (1991) 

Houston Lawyer’s Association v. Attorney General of Texas, 
111 S. Ct. 2376 (1991) ra ery 

Jacobellis v. Ohio, 
378 U.S. 184 (1964) . 

League of United Latin American Citizens v. Clements, 
914 F.2d 620 (5th Cir. 1990) (en banc) 

Martin v. Mabus, 
700 F. Supp. 327 (S.D. Miss. 1988) 

Monroe v. City of Woodville, 
881 F.2d 1327 (5th Cir. 1989) . 

Orr v. Orr, 
440 U.S. 268 (1979) . 

Pennekamp v. Florida, 
328 U.S. 331 (1946) . 

Posadas de Puerto Rico Assoc. v. Tourism Co., 
478 U.S. 328 (1986) . 

Pullman-Standard v. Swint, 
456 U.S. 273 (1982) . 

City of Richmond v. J. A. Croson Co., 
488 U.S. 469 (1989) TR  



Terrell v. Univ. of Texas Systems Police, 
792 F.2d 1360 (5th Cir. 1986) 
cert. denied 471900. S. 1064 C1087) "voi. wii. aig EES BRL a 2 

Thornburg v. Gingles, 
4718 U0.S 3001986) & aise oi LE. le Bake a ei aie hate a ow B22 

Wards Cove Packing Co. v. Atonio, 
4007S. 64201980) . in. oF eu. ae RE YT eka ah, 15 

Whitcomb v. Chavis, 
4030S. 124¢(1971). wv. o.oo. Jee ate 14D 

Wise v. Lipscomb, 
437 U.S 835 (1078) an 0s a a ee ER aR i 5 

TA AND REGULATION 

TEXAS CONST. 
Art VW, S70 He. .  ¥YRE, i. LS MERE a 6 

TEX. GOV'T CODE ANN. 

S74.053 ©. ot ia ee Tae Ce EEE TTT NG 
84050 8. rr. eh Te ey ae eee ke AL UTNE 

VOTING RIGHTS ACT 

SECHON 2 oie a 5 de (0 we tiie ie Na  PASSIM 

MISCELLANE 

D. Brooks, COUNTY AND SPECIAL DISTRICT LAW, § 1.1(1989) . . . . . . 7 n.7 

  
 



   

No. 90-8014 

  

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

  

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

Plaintiffs- Appellees, 

Vv. 

THE ATTORNEY GENERAL 
OF THE STATE OF TEXAS, et al., 

Defendants-Appellants 

  

REPLY BRIEF OF APPELLANT DALLAS COUNTY 
DISTRICT JUDGE F. HAROLD ENTZ 

Appellant Dallas County District Judge F. Harold Entz (“Judge Entz”) replies to the 

Appellees’ responsive briefs as follows: 
i 

I. THE COMPELLING STATE INTERESTS SUPPORTING TEXAS’ 
SYSTEM OF JUDICIAL ELECTIONS ARE SO STRONG, AS A 

MATTER OF LAW, THAT THEY PREVENT ANY HOLDING OF A 
VIOLATION OF SECTION 2 OF THE VOTING RIGHTS ACT 

A. Whether the Articulated State Interests Are 
Compelling Is A Question Of Law, Not Fact 

Appellees argue that determining whether Texas’ interest in its judicial structure is 

compelling or not is a question of fact. Accordingly, so the argument goes, the case must 

be remanded to the district court for such a factual determination in the “totality of the 

kA) 

circumstances.” That conclusion, however, is inconsistent with established case law 

regarding the determination and balancing of state interests in constitutional jurisprudence; 

moreover, it yields a completely unworkable and unconstitutional test. 

 



1. The Existence of a Compelling State Interest is Always a Question of Law. -- 

In both equal protection and first amendment analyses, the extent of and weight to be given 

to a state’s interest has always been a legal question for the court. See, e.g., Posadas de 

Puerto Rico Assoc. v. Tourism Co. of Puerto Rico, 478 U.S. 328, 341 (1986) 

(determining as a matter of law that Puerto Rico had a substantial governmental interest in 

the health, safety, and welfare of its citizens that justified infringing on its citizens’ free 

speech rights); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 296 (1984) 

(finding a substantial governmental interest “in maintaining the parks in our Capital” that 

justified narrowly tailored first amendment restrictions); F.C.C. v. Pacifica Foundation, 

438 U.S. 726, 750 (1978) (determining as a matter of law that the government’s expressed 

interest justified the infringement on otherwise protected speech); Terrell v. Univ. of Texas 

System Police, 792 F.2d 1360, 1362 n.2 (5th Cir. 1986), cert. denied, 479 U.S. 1064 

(1987) (holding that whether a party’s speech was a matter of “public concern” is a legal 

determination about which a court of appeals may make an “independent review of the 

whole record in order to determine whether the district court properly resolved the 

question’). 

In response to this position, Appellees can muster authority only for unhelpful 

generalities. For example, Houston Lawyers Association (“HLA”) and Oliver cite 

Pullman-Standard v. Swint, 456 U.S. 273 (1982), for the proposition that all fact findings 

are reviewed under Rule 52(a). HLA Brief on Remand at 12; Oliver Brief on Remand at 

11. LULAC and HLA cite Thornburg v. Gingles, 478 U.S. 30 (1986), for the proposition 

that a district court’s weighing of the totality of circumstances is a fact question. HLA 

Brief on Remand at 11; LULAC Brief on Remand at 10. Both of these global 

propositions, though obviously correct, miss the point. The cases Judge Entz has cited 

show that a determination of a compelling state interest is a legal question, thus Pullman- 

Standard is inapplicable; if the interest is compelling, then by definition it is not subject to a 

global balancing under the totality of circumstances, thus Thornburg v. Gingles is 

Wor 10  



inapplicable. This Court can and should make a decision, as a matter of law, whether 

Texas’ interests here are compelling. 

2. The Standard Urged by Appellees is Unworkable and Unconstitutional. -- 

Appellees argue that the determination of whether the state’s interest is compelling is a 

question of fact to be determined in the totality of the circumstances test, proposing a two- 

step process. First, Appellees claim the district court should factually determine whether 

the state’s interest is compelling. Then, rather than following established case law holding 

that a compelling state interest, once established, precludes finding a constitutional 

violation, Appellees call for a second, “factual” balancing of the “compelling” interest 

against other factors. This is an impossible task. 

Appellees do not explain how one would determine what weight the supposedly 

compelling state interest is to be given in the totality of the circumstances mix. Appellees 

seem to reject the common sense view that a compelling interest inherently outweighs 

competing concerns. By rejecting established standards, Appellees would leave this vital 

determination entirely to the trial court's unbridled discretion. Then, the only appellate 

review of this conclusion would be under the deferential clearly erroneous standard. This 

would leave the trial court’s exercise of pure discretion -- which in this case led the trial 

court to dismantle completely the entire judicial structure (including the partisan nature of 

the elections) and destroy the character of the judicial office -- essentially free from any 

meaningful appellate review. 

This is nothing more than an “I know it when I see it” test. It is no test at all. By 

refusing even to acknowledge guidance from established law in the state interest area, the 

Appellees urge a test with so little guidance or checks that it will necessarily be applied on 

an “ad hoc and subjective basis,” creating the very real danger of “arbitrary and 

discriminatory application.” Grayned v. City of Rockford, 408 U.S. 104, 109 (1972).  



B. Judge Entz’s Test Properly Accounts 
For The Possibility of Less Intrusive 

Alternative Electoral Systems 

Unlike Appellees’ vague and untested standard, Judge Entz has called for the 

adoption of a two-part test to identify compelling interests under section 2.1 This test 

avoids the subjectivity and arbitrariness inherent in Appellees’ test and is bottomed on well- 

defined and established equal protection, first amendment, and federalism principles. 

Judge Entz’s test, unlike Appellees’, provides a proper analysis of the intrusiveness 

of a proposed remedy during the liability phase. This is consistent with Justice Stevens’ 

explanation in HLA that the state interest is a legitimate factor “in determining whether a § 2 

violation has occurred.” HLA, 111 S. Ct. at 2381. Appellees thus ignore HLA when 

arguing that a state interest is not compelling and is thus irrelevant on liability unless it is 

the least restrictive possible mode of accommodating the state’s interest. Although a type 

of least restrictive alternative analysis clearly is appropriate in remedial proceedings -- the 

remedy applied must, as nearly as possible, accommodate state interests -- it does not 

govern in the liability phase. 

First, as discussed below, the strength of the state interest per se is important in 

determining liability. Those arguments apply without regard to whether the chosen 

mechanism hypothetically impacts strongly or lightly on election results. Second, by 

arguing for a pure least restrictive alternative test, Appellees would force Texas to adopt 

novel and experimental procedures. Appellees claim that a state interest, no matter how 

weighty, should be given cognizance only if the interest is promoted in the manner that has 

the least possible effect on electoral outcomes. Thus a state that is concerned about a vital 

interest, such as the operation of its judicial system, cannot freely take whatever steps best 

promote that interest. Rather, if a state wants to survive Appellees’ least restrictive 

  

l An interest is compelling if (1) it “relates to a central aspect of state sovereignty” 
and (2) tampering with it “would result in undue federal entanglement with the operations 
of state government.” Judge Entz Brief on Remand at 12.  



   

alternative test, the state must experiment with and adopt whatever untried method has the 

minimal impact on election results, regardless of how ineffectively that method may 

accommodate the state interest at issue. For example, the Justice Department here would 

cavalierly require Texas to experiment with judicial districts comprising a miniscule fraction 

of a county for all purposes, including venue and jury selection; Appellees suggest 

experimenting with limited or cumulative voting.2 Aside from the limits precluding federal 

courts from requiring experimental remedies, Wise v. Lipscomb, 437 U.S. 535, 540-41 

(1978); Martin v. Mabus, 700 F.Supp. 327, 336-37 (S.D. Miss. 1988), this turns 

federalism on its head. The classic theory is that the states are laboratories that can 

experiment with new ideas in governance. Appellees would change this to federalism as a 

laboratory where the states are mere guinea pigs with judges trading their judicial robes for 

lab coats. 

The “entanglement” prong of Judge Entz’s proposed two-part test provides a more 

sound, objective acknowledgement of the impetus underlying the least restrictive alternative 

test. If a simple, clean remedy accommodates the important state interest while removing 

the disparate electoral effects, then there would not be entanglement and the state interest in 

the existing system would not be compelling. On the other hand, as here, if a remedy 

would require completely overhauling the state system of elections, jurisdiction, venue, 

court specialization, and jury selection (as the Justice Department proposed) or adoption of 

untested experimental techniques (as other Appellees propose), then there is excessive 

federal entanglement with operation of a core state function, proving that the interest is 

  

2 Appellees’ argument incorrectly assumes that cumulative or limited voting would 
accommodate all of the interests involved here. Hence, they say, this proves that Texas’ 
interest in the current system is not compelling. Of course, cumulative or limited voting 
would not fully serve the delicate balance of accountability and independence established by 
the current system. Such a system would not allow candidates to target a particular, 
unworthy judge. Nor would strong judges be rewarded by being allowed to run 
unopposed. See generally Brief of Amici Curiae The State of Alabama, et al. 

 



   

compelling. This formulation thus accommodates the concern that artificial claims of “state 

interest” would be concocted to oppose voting rights, while still acknowledging the role of 

sovereign states in our federal system. 

C. Texas’ Interests Are Compelling Under The Two-Part Test 

Appellees make several arguments trying to show that permitting all voters to vote 

for the judges who have primary jurisdiction over them is not important. First, Appellees 

argue that Texas’ interest in linking electoral and jurisdictional bases for judges could not 

be compelling because Article V, § 7a(i) of the Texas Constitution permits subdistricting. 

HLA Brief on Remand at 2; Oliver Brief on Remand at 13; LULAC Brief on Remand at 22; 

Justice Department Brief on Remand at 15. In fact, however, the very opposite is true. 

This constitutional provision allows subdistricting only if there is a public referendum 

supporting it. But no county has ever adopted subdistricting or ever called an election on 

the subject. This hardly indicates a state policy favoring smaller districts. Moreover, 

nothing in the provision for smaller districts suggests that the linkage between primary 

jurisdiction and the electoral franchise would be broken; to the contrary, the provision 

contemplates legislative action to implement the additional aspects of the redistricting. See 

TEX. CONST. ART. V, § 7a(g). 

Next, Appellees suggest that the linkage issue was raised belatedly in this Court 

absent any factual basis in the trial court. Apart from being irrelevant,3 that simply is 

  

3 This Court is not bound by the interests directly stated in the trial court. Rather, 
this Court may properly examine the district court record in light of not only the 
governmental objectives stated by the Appellants at the time of the trial, but may also 
consider objectives “that might arguably be served” by the State's statutory scheme. Orr v. 
Orr, 440 U.S. 268, 279 (1979). In fact, where considerations of constitutionality are 
involved, an appellate court is compelled to examine the facts of the case in order to balance 
the interests involved. See Connick v. Myers, 461 U.S. 138, 151 n.10 (1983) (quoting 
Pennekamp v. Florida, 328 U.S. 331, 335 (1946)); Jacobellis v. Ohio, 378 U.S. 184, 190 
(1964). In this connection, aside from the many state interests articulated in Judge Entz’s 
prior briefs, Judge Entz commends to the Court those interests mentioned in the amicus 
brief of the State of Alabama. 

 



  

untrue. Judge Entz introduced evidence of the importance of linkage# and also argued that 

interest in his briefs in the trial court. See Defendant-Intervenor Dallas County Judge F. 

Harold Entz’s Post-Trial Brief at 1, 20-22. Additionally, Appellees argue that Texas’ 

“visiting judge” policy vitiates the linkage argument. They ignore, however, the fact that 

the visiting judge is appointed by and derives his whole authority from the elected, district 

judge, thus retaining electoral accountability.> Moreover, litigants have the absolute right 

to object to the appointment of a visiting judge.® Finally, Appellees wholly fail to respond 

to the constitutional dimension of the linkage argument -- disengaging this linkage would 

disenfranchise voters and thus be unconstitutional. See Judge Entz Brief on Remand at 16. 

Appellees also note that the population of mini-districts in large counties would be 

greater than the population of existing rural districts. Accordingly, Appellees suggest, the 

state’s concern about the fact or appearance of improper influence from small population 

districts is overstated. Appellees ignore, however, the interplay between population and 

geography. The population density in those rural districts is much lower; if they were 

combined based solely on population to reach some “standard” judicial district population, 

then the judicial districts would be physically larger than many states. One of the policies 

underlying the establishment of the county as the basis of Texas government was to bring 

the courts geographically closer to the citizens.” In rural counties this might result in 

judicial districts with populations low enough to raise a risk of undue influence; in urban 

  

4 Professor Anthony Champagne testified at length regarding the policy supporting 
linkage. Tr. 4:140-146. It is Texas’ chosen system to achieve the desired balance between 
accountability and independence in its judiciary. 

2 TEX. GOV'T CODE ANN. § 74.056. 

6 TEX. GOV'T CODE ANN. § 74.053. 

7 “One of the fundamental reasons for the Texas Revolution was the inaccessibility of 
the courts and other agencies of justice. The counties of Texas grew organically and 
geographically and were able to provide judicial services, usually within a day’s horseback 
ride of the county seat.” D. Brooks, COUNTY AND SPECIAL DISTRICT LAW § 1.1 (1989). 

 



counties mere physical proximity to the courthouse is not a concern and the legislature can 

reasonably prefer more populous districts. This balancing of competing interests -- 

geographic accessibility versus the risk of undue influence -- is precisely the task our 

system of government allocates to legislatures, not judges. 

Appellees also fail to acknowledge the overall interest Texas has in its judicial 

system. It is no trivial task to construct a judicial system that complies with all pertinent 

constitutional requirements and that also works. Appellees presume that one can simply 

tinker with one piece and ignore the interactions with all the other parts. Thus, HLA 

proposes simply changing electoral districts and leaving all else alone. HLA Brief on 

Remand at 20-21. This ignores the constitutional problems in disenfranchisement, 

allocation of specialized courts, and jury selection. Conversely, the Justice Department 

blithely proposes that Texas be required to use mini-districts for all of those purposes, 

Justice Department Brief on Remand at 16, ignoring the chaos that would result from 

administratively separate mini-districts and the nightmare venue and forum-shopping issues 

that would follow. The painstaking creation of a judicial system that works cannot be 

lightly disregarded and shows that Texas’ interest in the current system is indeed 

compelling. 

As Judge Higginbotham already has held based upon an equal protection analysis, 

“[s]tated in equal protection terms, there is a compelling necessity sufficient to overcome 

strict scrutiny of state acts impinging upon a fundamental interest.” League of United Latin 

American Citizens Council #4434 v. Clements, 914 F.2d 620, 646 (5th Cir. 1990) (en 

banc) (Higginbotham, J., concurring) (“LULAC”). Accordingly, this Court should hold 

that Texas’ interest in the current character of its state judicial district judges prevents a 

section 2 violation as a matter of law.  



   

D. Even Were Texas’ Interest Not Compelling, 
The District Court Must Still Be Reversed 

For A Proper Assessment Of Texas’ Interest 

Justice Stevens clearly stated that the state’s interest is a legitimate factor that should 

be considered in the totality of circumstances. HLA, 111 S. Ct. at 2381. While the 

Appellees blindly contend that the district court properly considered the state’s interest, 

even the Justice Department admitted that “the district court improperly assessed the 

evidence . . . [and that] a remand is necessary to permit the district court to make an 

informed assessment about the strength of the state’s interest.” Justice Department Brief on 

Remand at 11. Clearly, the district court did not consider the interests of Dallas County 

and the State of Texas as a factor mitigating against liability; rather, it merely concluded that 

the plaintiffs failed to establish tenuousness. See November Order at 75-78. As such, the 

district court did not properly analyze the totality of circumstances. 

Furthermore, some of the Appellees have stated the test rhetorically in terms of 

weighing a state’s interest against a finding of dilution. This formulation puts the cart 

before the horse, and is inconsistent with the Supreme Court’s ruling in HLA. Under the 

totality of circumstances test, there dint be any finding of dilution until after the state’s 

interest is considered. HLA, 111 S. Ct. at 2381. This is more than mere semantics. 

Under Appellees’ formulation, a strong state interest is nothing more than an affirmative 

defense that might, after the fact, undo a finding of liability. That contravenes the import of 

the totality of circumstances test. 

The state interest is considered in the totality of circumstances test for at least two 

reasons. First, a compelling state interest has importance and weight in and of itself. In 

the equal protection and first amendment contexts, a compelling state interest is not 

balanced against a constitutional violation. Rather, the existence of a compelling state 

interest prevents a Sonstiintionsl violation. Thus, it follows that the state interest should be 

considered before finding a statutory violation to determine whether a violation exists. 

 



  

Second, a showing of a strong state interest inferentially rebuts the true evil section 

2 seeks to prevent. Recall that the underlying constitutional norm section 2 might arguably 

support is prevention of intentional discrimination. That is, assuming that Congress 

adopted the results standard as a remedial measure to combat hard-to-detect discriminatory 

intent, a strong state interest thus shows that the state’s goal was not discriminatory, 

notwithstanding any disparate effects that may occur. This is particularly significant when, 

as here, the trial court has found as a fact that the state did not act with discriminatory 

intent. Thus, it is absolutely proper for the state interest to be considered in determining 

whether there is any violation of section 2. At minimum, this case must be remanded for a 

proper assessment of Texas’ interest in its system of judicial selection. 

II. AN APPLICATION OF SECTION 2 TO TRIAL 
JUDGES WOULD BE UNCONSTITUTIONAL 

Judge Entz has argued in detail how a federal court dismantling of the 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. Judge Entz 

Brief on Remand at 19. Appellees do not even address these arguments. They try to 

minimize these concerns, almost as if in passing, claiming the district court determined 

factually that these factors were not compelling. This argument attempts to trivialize these 

principles and the long-standing position of the Supreme Court that “[w]henever 

constitutional concems . . . 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 

Authority, 469 U.S. 528, 589 (1985), cert. denied, 488 U.S. 889 (1988) (O’Connor, J., 

dissenting); see also Gregory v. Ashcroft, 111 S. Ct. 2395, 2401 (1991) (determining that 

“Congressional interference with this decision of the people of Missouri, defining their 

Constitutional officers, would upset the usual Constitutional balance of federal and state 

powers.”) Thus it is up to this Court, as a matter of law, to balance the constitutional 

+10: 

 



     
concerns of federalism, raised by the risk of dismantling Texas’ judicial system, against 

Appellees’ statutory claim of disparate effects. 

Appellees also try to minimize the impact of Gregory v. Ashcroft, claiming it dealt 

simply with application of a statute. E.g., LULAC Brief on Remand at 20. The import of 

the case, and the reason Judge Entz cited it, is that the Supreme Court in that case 

acknowledges that even the Civil War Amendments must in an appropriate case defer to the 

sovereignty of state governments. Appellees neither acknowledge nor respond to this 

crucial issue. In this case the concerns of federalism are at zenith and the policies of the 

Civil War Amendments are at nadir, even if properly embodied in section 2 as amended. If 

ever there were a case for the balance between constitutional imperatives to tip in favor of 

the state, this is it. 

Appellees -- again -- wholly fail to respond to Judge Entz’s other constitutional 

arguments, which will not be reiterated here. 

As Judge Entz has established, Texas has over the years developed an intricate 

machinery for the administration of justice that fully complies with all constitutional 

requirements. To remove various parts to accommodate sub-districting or any other 

proposed remedy would entail immense intrusion into the finest details of Texas’ 

administration of its judicial system and would be unconstitutional. As this Court stated in 

LULAC: | 

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 radical 
trenching as is contended for today should therefore demand a very clear 
statement indeed. 

LULAC, 914 F.2d at 630-31. Redesigning this system is not a legitimate task for the 

federal government or a federal judge. 

“XT 

 



   

III. THE DISTRICT COURT MISAPPLIED SECTION 2 

A. The District Court Rejected This Court’s 
Test For Racially Polarized Voting 

Appellees consistently and understandably fail to confront Judge Entz’s observation 

that the District Court rejected this Court’s test for racially polarized voting, as stated in 

Monroe v. City of Woodville, 881 F.2d 1327 (5th Cir. 1989), cert. denied, 111 S. Ct. 71 

(1990). The Supreme Court in Thornburg v. Gingles, 478 U.S. 30 (1986), established a 

three-part threshold for section 2 dilution claims, including a requirement that plaintiffs 

prove racially polarized voting in the jurisdiction. This Court in Monroe explained that 

requirement: 

Appellants err by implying that a finding of racial polarization in voting 
behavior is synonymous with a group’s political cohesion. The terms are 
quite distinct. That a group’s voting behavior is racially polarized indicates 
that the group prefers candidates of a particular race. Political cohesion, on 
the other hand, implies that the group generally unites behind a single political 
“platform” of common goals and common means by which to achieve them. 
For example, the black population of a district may vote in a racially polarized 
manner so as to overwhelmingly favor black candidates, but the group may 
lack political cohesion if it splits its vote among several different black 
candidates for the same office. Where the black voters overwhelmingly favor 
a particular black candidate to the exclusion of others, data on racial block 
voting will be more probative to determining political cohesiveness. 

Monroe v. City of Woodville, supra, 881 F.2d at 1331 (emphasis added, footnotes 

omitted). 

Judge Entz established below and in his original briefs that Appellees failed to 

prove racially polarized voting -- that black voters in Dallas County preferred black judicial 

candidates.® As an extra step, Judge Entz argued (and the proof conclusively showed, as 

Appellees own expert agreed) that black voters prefer Democratic candidates, without 

regard for the race of the candidates. (Tr. 2:147-49, 172; 3:43, 57; 4:127-29; 5:283-84) In 

  

8 In fact, Judge Entz’s survey data showed the vast majority of black and white 
voters are unaware of the race of judicial candidates. Tr. 4:104-23, 127-29; DI-Dallas Exs. 
11, 12, 14. This makes racially polarized voting impossible under Monroe v. City of 
Woodbille. 

ey 

 



retrospect, perhaps it was unwise for Judge Entz to have taken that second explanatory 

step, since Appellees have seized upon it to mislabel Judge Entz's position. 

Appellees mischaracterized Judge Entz and Appellants as essentially requiring a 

“return to the intent standard to vote dilution analysis.” LULAC Brief on Remand at 26; 

see Oliver Brief on Remand at 17-18; LULAC Brief on Remand at 33-35. Indeed, one 

Appellee goes so far as claiming that Judge Entz's position requires that a plaintiff prove 

that black and white voters vote “differently because white voters are ‘racist.”” LULAC 

Brief on Remand at 33. This argument attempts to distract this Court from an inquiry 

consistent with the definition of racially polarized voting.? 

The true dispute between Judge Entz and Appellees is over what factor should be 

considered to assess racially polarized voting. Appellees argue that the pertinent factor is 

the race of the voter. Judge Entz and Monroe say the race of the candidate is the pertinent 

factor. Perhaps because the Fifth Circuit supports Judge Entz’s view, Appellees try to 

cloud the issue and claim it is a covert inquiry into intentional discrimination. That is not 

true. 

Neither formulation of the issue -- Judge Entz’s nor Appellees -- calls for an inquiry 

into intent. Neither version inquires why voters vote the way they do. The inquiry is 

  

9 This position is an obvious caricature. First, Judge Entz did not take that extreme 
position. Second, it does not follow from the standard of Monroe v. City of Woodville. 
Certainly it is possible for voters in a partisan system to indicate a preference for candidates 
of a particular race regardless of the candidate’s partisan affiliation. That could be shown 
by, for example, proof that minority candidates of a party did worse than majority 
candidates of that party. The proof in Dallas County was just the opposite and showed that 
black Democrats fared no better or worse than white Democrats. Tr. 4:104-09; DI-Dallas 
Ex. 9A. Oddly, Oliver seems to think that proof that only 28% of the total 70% Republican 
votes were straight ticket shows that Republican voters pay attention to the race of the 
candidate, and that they consciously vote against the black candidate. In fact, just the 
opposite is true. Oliver Brief at 3. Carolyn Wright, a black Republican judicial candidate, 
received more votes than the other Republican judicial candidates. Oliver, a black 
Democratic candidate, received more votes than his white counterparts. These statistics 
show, if anything, that when Republicans crossed over they did so to vote for a black 
candidate, and that they were less likely to cross over when their party’s candidate was 
black. |  



simply descriptive -- do black voters favor black candidates, and do white voters favor 

white candidates? It is irrelevant whether that pattern is explained by racial animus, 

political views, whether candidates are liberal or conservative, or, as Judge Entz argued, 

partisan affiliation. | 

Judge Entz argued that Appellees failed to carry their burden of proof under Gingles 

and Monroe v. City of Woodville, which was to show that black voters preferred black 

candidates. The fact that Judge Entz further established the true state of affairs -- black 

voters prefer Democratic candidates -- does not indicate that Judge Entz assumed the 

burden of proving an affirmative defense, or that Appellees were relieved of carrying their 

burden of proving racially polarized voting.10 Significantly, none of the Appellees argues 

that the district court did in fact evaluate racially polarized voting under the proper Monroe 

v. City of Woodville standard. Because of the district court’s failure to apply the proper 

legal standard, the judgment of Jiabithy at minimum must be reversed. Because the 

evidence was undisputed at trial that in Dallas County black voters do not prefer black 

candidates, but prefer Democratic candidates regardless of the race of the candidate,!! no 

  

10 Indeed, this Court’s standard for racially polarized voting under Monroe v. City of 
Woodville and Judge Entz’s additional proof of the true explanation of partisan polarized 
voting are both wholly consistent with Whitcomb v. Chavis, 403 U.S. 124 (1971). The 
Court there essentially held that proof that minority candidates lost because they were 
Democrats showed the system was not discriminatory because it inherently showed that the 
minority candidates did not lose because of their race. Thus, contrary to Appellees’ 
contention, this inquiry does not covertly reintroduce intent into the test. It simply 
acknowledges the obvious point that proof that election returns are explained by one factor 
-- partisan affiliation -- inferentially rebuts arguments that they are explained by something 
else -- racially polarized voting. 

11 Oliver appears to try to create a dispute on this point by claiming that losing black 
judicial candidates claimed that they would have fared no better had they run as 
Republicans. Oliver Brief at 7. Oliver’s transcript cites do not support his claim; indeed, 
some of the cited testimony is not even from a judicial candidate.  



   

remand is required for Dallas County and judgment may be rendered in favor of Judge Entz 

and Dallas County.12 

B. The District Court Used the Wrong Baseline 
For Determining Degree of Minority Electoral Success 

Judge Entz argued that in determining the “Zimmer factor” of degree of minority 

success, that degree should be measured against the proportion of minorities in the pool of 

qualified applicants, citing recent employment discrimination cases. See Judge Entz Brief 

on Remand at 32-33; Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989); City of 

Richmond v. JA. Croson Co., 488 U.S. 469 (1989). In response, Appellees’ claim that 

this argument reveals a fundamental misunderstanding of the Voting Rights Act, which 

focuses on the rights of the voter, not the rights of the candidate. E.g., HLA Brief on 

Remand at 38. It is Appellees, rather, who misunderstand the Zimmer factors, not all of 

which have to do with the voter. This particular factor deals with minority electoral 

success, i.e., the success of minority candidates.!3 Since this factor on its face focuses on 

the candidate, it is appropriate to measure what it discusses -- electoral success -- in relation 

to the candidate, not the voter. 

  

12 Judge Entz cannot let pass the egregious distortion of Judge Wright's testimony 
offered by Oliver. Oliver claims that Judge Wright purportedly testified that she would 
have a difficult time running for election in a majority Anglo district, and that her testimony 
“underscore[d] plaintiffs’ contention that voting is racially polarized in Dallas County.” 
Oliver Brief at 8. That is precisely the opposite of Judge Wright's testimony. (Tr. 4:205- 
208). 

She testified that she was living proof that voting in Dallas now is not racially 
polarized, since she as a black woman was able to defeat a white Democratic incumbent. 
She testified further that, ironically, she believed single member districts would cause 
voting in Dallas to change from not racially polarized to racially polarized. Her concern 
was that single member districts would cause a change of perception by majority voters that 
some districts were “black” districts and that black candidates should run only from those 
districts. Tr. 4:191-94. For Oliver to claim this testimony supports plaintiffs’ position is 
the height of revisionism. 

13 Not even Appellees argue that this factor deals with the success of minority voters, 
which presumably would indicate how many times minority voters “won” in the sense of 
voting for the prevailing candidates. 

-15 

 



   

This interpretation also makes sense if one understands the purpose of the factor, 

which is to compare the results as they exist to what would happen if the electoral process 

were truly color blind. If judicial elections were in fact color blind, black lawyers would 

run for judge in the same proportion as white lawyers, thus the percentage of black 

candidates would track the percentage of black lawyers; similarly, black candidates would 

win judicial elections in the same proportion as white judicial candidates, thus the 

percentage of winning black candidates would track the percentage of overall black 

candidates, which tracks the percentage of eligible black lawyers. So, if this Zinuner factor 

is intended to compare reality against a color-blind ideal, the relevant comparison is the 

percentage of eligible black lawyers, not the percentage of black voters. 

Thus, regardless what proof was used in other cases involving other offices with 

other electoral requirements, the electoral requirements here show that the pool of qualified 

applicants is racially quite distinct from the populace as a whole, and that blacks are 

overrepresented on the Dallas County bench in comparison to their participation in the pool 

of legally qualified judicial candidates.14 

C. The District Court’s Finding Under the 
Totality of Circumstances Was Clearly Erroneous 

Appellees make no other response to Judge Entz’s arguments analyzing the totality 

of the circumstances, and Judge Entz accordingly will not address those points further. 

  

14 Appellees attack Dr. Champagne’s testimony regarding his evaluation of different 
methods of judicial selection and minority judges by noting that the size of the pool of 
legally qualified minority judicial candidates does not cause the success or failure of an 
individual candidate once he or she decides to run. E.g., Oliver Brief on Remand at 6; 
HLA Brief on Remand at 19. Of course, that was not Dr. Champagne’s testimony to begin 
with. He testified that in reviewing a multitude of various factors, including region of the 
country, method of selection, etc., the single best predictor of percentage of minority 
judges was the percentage of minority lawyers. (Tr. 4:130; DI-Dallas Ex. 18A) It is 
somewhat ironic that Appellees vacillate between claiming that causes of the outcome of 
individual elections are irrelevant when it is convenient for them to do so, but crucial when 
evidence of statistical trends is awkward for their agenda. 

164 

 



    
CONCLUSION 

Therefore, for the reasons stated, Judge Entz requests the Court to reverse the 

decision or the district court, and to render judgment in favor of the defendants. 

Respectfully submitted, 

ANS ar 
Robert H. Mow, Jr., P.C. 
David C. Godbey 
Bobby M. Rubarts 
Craig W. Budner 

  

of HUGHES & LUCE, L.L.P. 
1717 Main Street 
Suite 2800 
Dallas, TX 75201 
(214) 939-5500 

ATTORNEYS FOR DALLAS COUNTY 
DISTRICT JUDGE F. HAROLD ENTZ 

Of Counsel: 

Sidney Powell 
Strasburger & Price 
901 Main Street 
Suite 4300 
Dallas, TX 75202 
(214) 651-4692 

17 

 



ERTIFICATE OF SERVICE 

I certify that a true and correct copy of the foregoing instrument was served by 
certified mail, return receipt requested, on William L. Garrett, Garrett, Thompson & 
Chang, 8300 Douglas, Suite 800, Dallas, Texas 75225; Rolando Rios, Southwest Voter 
Registration & Education Project, 201 N. St. Mary's, Suite 521, San Antonio, Texas 
78205; Sherrilyn A. Ifill, NAACP Legal Defense and Educational Fund, Inc., 99 Hudson 
Street, 16th Floor, New York, New York 10013; Gabrielle K. McDonald, 301 Congress 
Avenue, Suite 2050, Austin, Texas 78701; Edward B. Cloutman, III, Mullinax, Wells, 
Baab & Cloutman, P.C., 3301 Elm Street, Dallas, Texas 75226-1637; Renea Hicks, 
Office of the Attorney General, P.O. Box 12548, Capitol Station, Austin, Texas 78711- 
2548; J. Eugene Clements, Porter & Clements, 700 Louisiana, Suite 3500, Houston, 
Texas 77002-2730; Walter L. Irvin, 5785 South Hampton Road, Suite 210, Lock Box 
122, Dallas, TX 75232-2255; Susan Finkelstein, Texas Rural Legal Aid, Inc., 201 N. St. 
Mary's #624, San Antonio, Texas 78205; and Seagal V. Wheatley, Oppenheimer, 
Rosenberg, Kelleher & Wheatley, Inc., 711 Navarro, Sixth Floor, San Antonio, Texas 
78205 in accordance with the Federal Rules of Appellate Procedure this 24th day of 
October, 1991. 

I 
  

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