Brief of Appellant F. Harold Entz

    (214) 239-5500 

HUGHES & LUCE 

2800 MOMENTUM PLACE 

1717 MAIN STREET 

DALLAS, TEXAS 7520! 
11 CONGRESS 

FAX (214) 939-6100 (512) 482-6800 

TELEX 730836 

Direct Dial Number 
(214) 939-5581 

February 13, 1990 

CERTIFIED MAIL 
RECEIPT NO. P 547 080 834 

Gilbert F, Ganucheau, Clerk 
U. 8. Codrt of Appeals, 5th Circuit 
600 Camp Street 

New Orleans, Louisiana 70130 

Re: League of United Latin American Citizens (LULAC), 
et al. v. F. Harold Entz, et al., Cause No. 90-8014 

Dear Mr. Ganucheau: 

Enclosed please find an original and seven copies of 
Appellant Dallas County District Judge F. Harold Entz's Brief 
for filing in the above-referenced case. 

Please return a file-marked copy to me in the enclosed 
envelope. Please note that copies of the above document are 
being sent as indicated in the certificate of service to the 
other parties. 

Please be advised that Judge Entz relies upon and adopts 
the Record Excerpts filed by the State Defendants. 

In accordance with Rule 44 of the Federal Rules of 
Appellate Procedure, please be advised that this appeal draws 
into question the constitutionality of Section 2 of the Voting 
Rights ‘Act, 42 U.S.C. § 1973. In accordance with Rule 44, 
please certify that fact to the Attorney General. 

. Very truly yours, 

David C. Godbey 

DCG/phl 

Enclosures 

  

900 ONE CONGRESS PLAZA 

AUSTIN, TEXAS 7870! 

FAX (512) 482-6859



   
Mr. 

HUGHES & LUCE 

Gilbert F. Ganucheau, Clerk 

Page 2 

February 13, 1990 

CC: (CERTIFIED MAIL RRR with enclosures 
unless specified otherwise) 
William L. Garrett 
Rolando Rios 
Susan Finkelstein (Eederal Express) 
Sherrilyn A. IfillV 
Gabrielle K. McDonald (Federal Express) 
Edward B. Cloutman, III (Federal Express) 
E. Brice Cunningham 
Renea Hicks (Federal Express) 
Ken Oden 

David R. Richards 
J. Eugene Clements (Federal Expess) 
Darrell Smith 
Michael J. Wood 
Joel H. Pullen 

Seagal V. Wheatley 
John L. Hill, Jr. (Federal Express) 
Michael Ramsey 

 



  

   
IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

No. 90-8014 

  

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

Plaintiffs-Appellees, 

Vv. 

DALLAS COUNTY DISTRICT JUDGE 
F. HAROLD ENTZ, et al., 

Defendants-Appellants. 

  

On Appeal From The United States District Court 
For The Western District of Texas 

Midland-Odessa Division 

  

BRIEF OF APPELLANT F. HAROLD ENTZ 

  

Robert H. Mow, Jr. 
David C. Godbey 
Bobby M. Rubarts 
Esther R. Rosenblum 

of HUGHES & LUCE 

Of Counsel: 2800 Momentum Place 
1717 Main Street 

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 

February 13, 1990 

     
 



  

   
IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

No. 90-8014 

  

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

Plaintiffs-Appellees, 

V. 

DALLAS COUNTY DISTRICT JUDGE 
F. HAROLD ENTZ, et al., 

Defendants-Appellants. 

  

On Appeal From The United States District Court 
For The Western District of Texas 

Midland-Odessa Division 

  

BRIEF OF APPELLANT F. HAROLD ENTZ 

  

Robert H. Mow, Jr. 
David C. Godbey 
Bobby M. Rubarts 
Esther R. Rosenblum 

of HUGHES & LUCE 

Of Counsel: 2800 Momentum Place 
1717 Main Street 

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 

February 13, 1990 

 



   

CERTIFICATE OF INTERESTED PARTIES 
  

No. 90-8014, League of United Latin American Citizens (LULAC), 
et al. v. F. Harold Entz, et al. 

The undersigned counsel of record certifies that the following listed persons 
have an interest in the outcome of this case. These representations are made in order 
that the Judges of this Court may evaluate possible disqualification or recusal. 

The League of United Latin 
American Citizens, Council # 4434 Plaintiff-Appellees 

The League of United Latin 
American Citizens, Council #4451 Plaintiff-Appellees 

The League of United Latin 
American Citizens, Council 
(Statewide) Plaintiff- Appellee 

Christina Moreno Plaintiff-Appellee 

Aguilla Watson Plaintiff-Appellee 

James Fuller Plaintiff-Appellee 

The Houston Lawyers’ Association Plaintiff- Appellee 

Jesse Oliver Plaintiff-Appellees 

Joan Winn White Plaintiff-Appellees 

Fred Tinsley Plaintiff- Appellees 

Jim Mattox Defendant-Appellant 

George Bayoud Defendant-Appellant 

Thomas R. Phillips Defendant-Appellant 

Michael J. McCormick Defendant-Appellant 

Ron Chapman Defendant-Appellant 

Thomas J. Stovall, Jr. Defendant-Appellant 

James F. Clawson, Jr. Defendant-Appellant 

Joe E. Kelly Defendant-Appellant 

 



Robert M. Blackman 

Sam M. Paxson 

Weldon Kirk 

Jeff Walker 

Ray D. Anderson 

Joe Spurlock, II 

Leornard Davis 

Sharolyn Wood 

F. Harold Entz 

Tom Rickhoff 

Susan D. Reed 

John J. Specia, Jr. 

Sid L. Harle 

Sharon MacRae 

Michael P. Pedan 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Rolando L. Rios; Garrett, Thompson & Chang, counsel for plaintiff-appellees, The 
League of United Latin American Citizens, Council #4434; The League of United 
Latin American Citizens, Council #4451; Cristina Moreno; Aguilla Watson; The 
League of United Latin American Citizens, Council (Statewide); and James Fuller 

Matthews & Branscomb; Sherrilyn Ifill, cousel for plaintiff-appellees, The Houston 
Lawyers' Association 

Renea Hicks, Javier Guajardo, counsel for state defendants appellants, The 
Honorable Jim Mattox, The Honorable George Bayoud, The Honorable Thomas R. 
Phillips, The Honorable Michael J. McCormick, The Honorable Ron Chapman, The 
Honorable Thomas J. Stovall, Jr., The Honorable James F. Clawson, Jr., The 
Honorable Joe E. Kelly, The Honorable Robert M. Blackman, The Honorable Sam M. 
Paxson, The Honorable Weldon Kirk, The Honorable Jeff Walker, The Honorable Ray 
D. Anderson, and The Honorable Joe Spurlock, II 

James Greenleaf Boyle; Mullinax, Wells, Baab & Cloutman; E. Brice Cunningham, 
counsel for plaintiff-appellants, Jesse Oliver, Joan Winn White, and Fred Tinsley  



    
Porter & Clements; Darrell Frank Smith, counsel for defendant-appellant, The 
Honorable Sharolyn Wood 

Hughes & Luce, counsel for defendant-appellant, The Honorable F. Harold Entz 

Kaufman, Becker, Pullen & Reibach, Inc.; Oppenheimer, Rosenberg, Kelleher & 
Wheatley, Inc.; Goldstein, Goldstein & Hilley, counsel for Bexar County Judge 

Intervenors 

Attorney of Recor 
Appellant F. Har faz 

  

- iii - 

 



    

STATEMENT REGARDING ORAL ARGUMENT 

This case raises numerous novel and significant legal issues regarding the delicate 
balance between the state and federal governments and between the interests of 
minorities and the needs of the administration of justice. Aside from the legal 
significance, the result of this case will have enormous practical impact on the Texas 
judiciary. Thus it is a case that would appear to merit oral argument by any reasonable 

standard. The countervailing consideration, however, is that the Governor has called the 
Texas Legislature into session beginning February 27, 1990, to consider alteration of 
Texas' methods of judicial selection, solely in response to the District Court's erroneous 

ruling below. It is thus imperative that this case be resolved expeditiously so the 
Legislature will know whether destruction of the Texas judiciary is truly required. 

Accordingly, if oral argument can be held immediately following briefing Judge Entz 
requests oral argument; if a prompt argument setting is not possible, Judge Entz prefers 
to waive oral argument in favor of a more expeditious disposition of this appeal. 

fy - 

 



   

TABLE OF CONTENTS 
  

CERTIFICATE OF INTERESTED PARTIES 

STATEMENT REGARDING ORAL ARGUMENT 

TABLE OF CONTENTS . 

TABLE OF AUTHORITIES. 

STATEMENT OF JURISDICTION . 

ISSUES PRESENTED . 

STATEMENT OF THE CASE. 

A. Course of Proceedings and Disposition in Court Below . 

B. Statement of Facts . 

SUMMARY OF THE ARGUMENT 

ARGUMENT 

I. SECTION 2 MAY NOT PERMISSIBLY APPLY TO TRIAL COURTS . 

A. Overview of the Voting Rights Act . 

B. Section 2 Does Not Apply to Trial Judges . 

1. District Judges Are Not "Representatives” 
Covered by Section 2. «he 

2. District Courts Are Single-Member Districts 

C. Section 2 is Unconstitutional 

1. Section 2 Cannot Constitutionally Apply 
to the State Judiciary. : 

2. Section 2 Was Not a Valid Exercise of 
Congress’ Authority. . ro 22 

 



    
II. THE DISTRICT COURT APPLIED IMPROPER LEGAL STANDARDS 

UNDER SECTION 2 0, nv re nv oa ie ie vic ainda a 26 

A. The District Court Rejected This Court's Test 
for Racially Polarized Voting Under Section2 . . . . . . . . . . 26 

1. Voting In Dallas Is Not "Racially Polarized” 
Because Black Voters in Dallas Do Not Prefer 
BlackCandidates: . . 4: . «ovis + sis BC 0 4.08 wit 27 

2. This Court's Definition of "Racially 
Polarized Voting" Is Consistent with 
Prior Constructions of Section 2... .. . . . . J % sy «ivi v win 28 

3. A Definition of "Racially Polarized Voting” 
Acknowledging the Existence of Partisanship 
is Consistent with Congress’ Intent In 
Enactincthe Results Test, . +. wv + sia «ui vininiin vin 30 

B. The District Court Used the Wrong Baseline 
For Determining Degree of Minority Electoral Success . . . . . . 32 

C. If the District Court Properly Applied the 
Voting Rights Act, that Act is Unconstitutional . . . . . . . . . 34 

1. The Voting Rights Act Is Unconstitutional 
Unless the Race of the Candidate Matters. . . . . . . . . . 34 

2. The Voting Rights Act Is Unconstitutional 
Unless it Requires a Causal Link Between the 
Challenged Practice and the Claimed Harm. . . . . . . . . . 35 

III. THE DISTRICT COURT'S INTERIM REMEDY, AND ANY CONCEIVABLE 
SINGLE MEMBER DISTRICT REMEDY, WOULD VIOLATE SIGNIFICANT 
CONSTITUTIONAL PROVISIONS. +. . .c vis ia afs vin v vin “iis 36 

IV. THE DISTRICT COURT'S FINDING UNDER THE TOTALITY 
OF CIRCUMSTANCES WAS CLEARLYERRONEQUS. . + « «vv « « « 38 

A. The District Court Used An lmproper | Standard 
Of Proof = .vi..n % is. i Tel es 38 

B. Appellees Used Outdated Statistical Data . . . . . . . . . . . . 39 

C. Under the Proper Standard of Proof the District 
Court's Conclusions were Clearly Erroneous . . . . . . . . . . . 41 

CONCLUSION i 0 sr ie 2 i de a wii lis a 8 3 44 

CER HFICATE OF SERVICE... . fie ov ov vinie ia vin. a aiden a 46 

—V] - 

 



    
TABLE OF AUTHORITIES 
  

CASES 

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

Campos v. City of Baytown, 
840 F.2d 1240 (5th Cir. 1988), 
cert. denied, 109 S. Ct. 3213 (1989). 

Campos v. City of Baytown, 
849 F.2d 943 (5th Cir. 1988) . 

Chisom v. Edwards, 
839 F.2d 1056 (5th Cir.), 
cert. denied, 109 S. Ct. 390 (1988) 

Chisom v. Roemer, 
853 F.2d 1186 (5th Cir. 1988) 

Cipriano v. City of Houma, 
395 U.S. 701 (1969). 

Citizens for a Better Gretna v. City of Gretna, 
834 F.2d 496 (5th Cir. 1987), cert. denied, 
109 S. Ct. 3213 (1989) a a 

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

City of Phoenix v. Kolodziejski, 
399 U.S. 204 (1970). : 

City of Richmond v. J. A. Croson Co., 
109 S. Ct. 706 (1989). ally 

Coalition to Preserve Houston v. Interim Bd. 
of Trustees of Westheimer Ind. School Dist., 
494 F. Supp. 738, (S.D. Tex. 1980) aff'd, 
450 11.8. 901 (3981), . ir. 

Coyle v. Smith, 
221 U.S. 559 (1911). 

Crowell v. Benson, 
285 U.S. 22 (1932) 

Davis v. Bandemer, 
478 U.S. 109 (1986). 

Fortson v. Dorsey, 
379 U.S. 433 (1965). er , 

- vil - 

19 

30 

38 

10,15-16 

21,39 

36 

. 30,40 n.33 

...14,24.8: 1.33 

36 

33,36 

33 

20 

20 n.17 

35 

24& n.23 

 



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

Gomillion v. Lightfoot, 
364 U.S. 339 (1960). 

Guinn v. U.S., 
238 U.S. 347 (1915). 

Hatten v. Rains, 

854 F.2d 687 (5th Cir. 1988) . 

Houston v. Haley, 
859 F.2d 341 (5th Cir. 1988), vacated on other grou, 
BBO F.2d 870745th Cir. 1880)... . . wiv i. Ne a S28 N27,30-40,41 1.34 

Hurtado v. California, 
100.8. 5181888). i. v8 i ee ET WE i ee 2 37 

I.N.S. v. Cardoza-Fonseca, 
480 1J.S. 421: 107 S.Ct. 1207 (1987) : 

James v. Bowman, 
190 U.S. 127 (1903). 

Jones v. City of Lubbock, 
727 F.2d 364 (5th Cir. 1984) . 

Lane v. Wilson, 

307 U.S. 268 (1939). 

League of United Latin American Citizens v. Clements, 
884 F.2d 185 (5th Cir. 1989) . 

McCulloch v. Maryland, 
17U.S. 4 Wheat} 316 (1810)... % . +c a. 4 ou Eee ee was a 25 

Monroe v. City of Woodville, 
BSL F.2d 1327(5th Cir, 1988) +... 2, . k. + 0 , ou edemen vo imate. 11,2728 

Myers v. Anderson, 
238 11.0. 368 (1918). 8. ie. or oe ira eee at aie a a a Re Be, 24 n.24 

Overton v. City of Austin, 
B71 F.2d 529(Bth Cir. 1989) ... i. ivi: vio vile ds ih iri div aw rile v 28 0,27,40 

Packard Motor Car Co.v. NLRB, 
330 U.S.485 (1947) . 

Regents of the University of Calilorpia V. Bane, 
438 U.S. 265 (1978). ada  



  

   
Reynolds v. Sims, 
377 U.8un30M1064): A. Ein eee ee Re 24 

Smith v. Allwright, 
399 106.840 (1044), , rT Rl tiie heh Res Te 250,20 

South Carolina v. Katzenbach, 
383 U.S. 3013968), . ss. Wh, as ea de es a hee 20&N24 

Terry v. Adams, 
Sas US MBI (1083). 4% . ra, SE EL Ld Ue 2B nd 

Thornburg v. Gingles, 
478 U.S, 30(1986) 5 tii. ov eke aie mew ae WS agi ow 0 Teel 165,29-30,33,35 

United Jewish Organizations v. Carey, 
AUS MIZE cl al a de ee aE 35 

U.S. v. Dickie, 
778 F.2A 607 Sth Cir 1085), « s - wiv nie ON Noi ne Be 37 

U.S. v. Monsanto, 
100S.ECE. 26872 (1080) "sols is 0 0 hie ne Ee ei ee ae iki wa a 17-18 

U.S. v. Reese, 
BUS IRE) er, a ta. es Bat ST 25 

U.S. v. Taylor, 
487 U.S. 326.1088. CL 2AI3 (1088) tsi iv anv sv hy wine ies 4 eae 17 

U.S. v. Turkette, 

252 U8. 878188... ote BR. a. el ie ee WE 17 

United Trans. Union v. Long Island R.R. Co., 
A58 0.S. 8781108 ei ate + ini II aa ae wr ee Ye 20 

Ex parte Virginia, 

1001.8. 3301878) a 6 ss i ERE ve ve i ee ae 25 

Wards Cove Packing Co. v. Atonio, 
1008. CU ZIBB) ed ve. Weal a ES 33 

Wells v. Edwards, 
347 F. Supp. 453 (M.D. La. 1572) ay d, 
409 U.S. 1005 (1973) . . .. . RL aE ab Gh Ly 18 

Whitcomb v. Chavis, 

WLS 124070) 00 Te TE Line een 31-32,38 

Whitfield v. Democratic Party, 

626 F. Supp. 1365(E. DATE, 1088) ih vv. ls eh ai ai a wie 33 

- j= 

 



  

   
White v. Regester, 
$US. 785 AT3), FL Lh Lue see see a owe 240.23,310.30 

Zimmer v. McKeithen, 
185 F.2d 1297 (5th Cir. 1973), aff'd on other grounds, 

124 U.S. 838 {1878} (per CUTIAME s/s 0 oir in as vie sia ewes Ee al 15 

STATUTES AND REGULATIONS 

20 USC. 81073, otf ce aE. ate vw we ee ak ules Be le ae 13,33 

MISCELLANEOUS 

Black's Law Dictionary (thed, 1979... . « HE. Wu via wag Jil wit oh 18 

Champagne, Judicial Reform in Texas, 
Judicature, Oct.-Nov. 19888, u,v hs + vile va sda Te wills alee ales 9 n.10 

Champagne, The Selection and Retention of Judges in Texas, 

Sw. 1 1.86 (1a88), BE i ae te a ie ae eS 9 n.10 

S. Rep. No. 97-417, 37th'Cong. 2d Sess. {1082}. . + . ... . + «+ J « 3014-15,31.0.30 

1882 U.S. Code Cong. 8 AL. News 177... . « ov v wiv «homely, , +, 221.20,23 10N.21-22 

L. Tribe, American Constitutional Law § 5-14 (2d ed. 1988) . . . . . . . . . . 22 

Webster's Ninth New Collegiate Dictionary (1985) . . . . . . . «+ + + + « +. 18 

 



    
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, 

v. 

F. HAROLD ENTZ, et al., 

Defendants-Appellants 

  

BRIEF OF APPELLANT DALLAS COUNTY 
DISTRICT JUDGE F. HAROLD ENTZ 
  

Appellant Dallas County District Judge F. Harold Entz ("Judge Entz") files this his 

brief showing that the District Court's unprecedented intrusion into the judicial structure 

of the sovereign state of Texas either misapplied the Voting Rights Act or exceeded the 

constitutionally permissible scope of federal control over intrinsic state functions. 

STATEMENT OF JURISDICTION 
  

This Court has jurisdiction over this action under both 28 U.S.C. § 1292(a)(1) and 28 

U.S.C. § 1292(b). 

ISSUES PRESENTED 
  

Whether state district court judges are "representatives" within the meaning of the 

Voting Rights Act, given that they do not deliberate in a collegial body like appellate 

judges, and if so, whether they are already elected from single member districts? 

Whether a United States District Court can constitutionally apply the requirements 

of Section 2 of the Voting Rights Act to state judiciaries consistent with principles of 

federalism and absent a requirement of discriminatory intent? 

 



   

Whether the District Court properly construed the Voting Rights Act by holding (1) 

that "racially polarized voting" under the Voting Rights Act only requires a showing that 

minority voters support candidates of a particular political party without regard to the 

race of those candidates, as opposed to a showing that minority voters prefer minority 

candidates, and (2) that the baseline for determining whether minorities are 

"underrepresented” on the district court bench is the percentage of minorities in the 

electorate as a whole, as opposed to the percentage of minorities in the pool of potential 

legally qualified judicial candidates? 

Whether the Voting Rights Act is constitutional as applied if construed to protect 

partisan preferences rather than racial preferences and to require a remedy that will 

yield more winning minority candidates when the challenged practice is not the reason for 

any "underrepresentation” of minorities? 

Whether the District Court's interim remedy is constitutional given that it 

disenfranchises county-wide voters from voting for most district judges with jurisdiction 

over them, it draws jury venires from outside the remedial judicial "district" from which 

judges are to be elected, and it permits the arbitrary assignment of trial court judicial 

specializations to particular judicial positions; alternatively, whether it is constitutional 

for the District Court to require an overhaul of state court jurisdiction, venue, jury 

selection, and subject matter specialization in order to contrive a predictable number of 

"safe" minority judicial seats, in the name of equal justice? 

If the District Court's legal construction of the Voting Rights Act were correct, 

whether its factual evaluation of the "totality of circumstances" was clearly erroneous? 

 



   

STATEMENT OF THE CASE 

A. Course of Proceedings and Disposition in Court Below 

Appellee LULACY/ filed this action against the various state defendants on July 11, 

1988, claiming that Texas' system of electing district judges on a county-wide basis 

violated Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, and was promulgated or 

maintained for intentionally discriminatory purposes in violation of the Fourteenth and 

Fifteenth Amendments.2/ Two additional plaintiff groups intervened: The Houston 

Lawyers Association and the Dallas Plaintiff-Intervenors Oliver, Winn, and Tinsley 

complained specifically on behalf of black voters in Harris and Dallas counties, 

respectively. By order dated March 1, 1989, Judge Entz was permitted to intervene in his 

individual capacity as a party defendant with respect to Dallas County;3/ Judge Wood was 

similarly permitted to intervene with respect to Harris County.4/ 

Trial was to the Court the week of September 18, 1989. Judge Entz actively 

presented evidence regarding Dallas County. In a lengthy opinion issued on November 8, 

1989 (the "November Order"), the District Court found for plaintiffs on their Voting 

  

1/ Unless differentiation is required, Appellant Judge Entz will refer to both Appellee 
LULAC and Dallas County Plaintiff-Intervenors collectively as "Appellees." 

2/ Due to the expedited briefing schedule, Judge Entz does not have a copy of the 
record available as this brief is prepared. Accordingly, he will attempt to identify items 
in the record by name and date filed. Citations to the transcript are by volume and page, 
e.g., "Tr. 3:101-102." Citations to Judge Entz's exhibits are in the form "DI-Dallas Ex. 
x! 

3/ Although Judge Entz's legal arguments are not intrinsically restricted in 
applicability to Dallas County, Judge Entz restricted his involvement at trial to Dallas 
County and will likewise restrict his discussion of the facts to Dallas County before this 
Court. 

4/ Midland County attempted to intervene in its official capacity, but its motion was 
denied; that denial was subsequently affirmed by this Court. League of United Latin 
American Citizens v. Clements, 884 F.2d 185 (5th Cir. 1989). Certain judges in Travis 
County were granted leave to intervene as defendants in their individual capacities; their 
subsequent request that their intervention be stricken was also granted before trial. 

 



Rights Act claims in all nine challenged counties, but rejected their constitutional 

attack. The District Court noted its personal objections to partisan elections (November 

Order at 4), the date of Texas' judicial elections (November Order at 5), and Texas’ 

system of judicial specialization. (November Order at 77-78) The District Court also 

acknowledged uncertainty regarding its disposition of the legal issues raised: "This area 

of the law is not a sphere of icy certainty.” (November Order at 93) Notwithstanding its 

uncertainty, the District Court called for a dismantling and reconstruction of the Texas 

trial court judiciary. 

Absent action from the Texas Legislature remodeling the Texas judiciary, the 

District Court requested the submission of "interim plans" to govern the 1990 elections. 

On December 21, 1989, Appellee LULAC and the Attorney General (over the objection of 

all other individual State Defendants) submitted a proposed interim plan (the 

"Mattox-LULAC Plan") for the 1990 elections. Essentially, the Mattox-LULAC Plan 

assigned judicial spots to state legislative or JP districts in a form of small, quasi-single 

member districts. It retained county-wide jurisdiction and venue, but restricted voting to 

voters residing within the small districts. Because the number of judicial positions was 

greater than the number of legislative districts, some legislative districts would get 

"extra" judges; the districts with higher minority populations were allocated the "extra" 

judicial seats. Additionally, the Mattox-LULAC Plan effectively mangled Texas' system 

of judicial specialization through civil, criminal, family, and juvenile courts and the 

continuity of court dockets by requiring the presiding administrative judge for each 

county to assign specializations and dockets to winning candidates after the election. 

On January 2, 1990, the District Court entered a slightly modified form of the 

Mattox-LULAC Plan (the "January Order"). Most significantly, after having ruled 

(improperly) that the partisan nature of Texas' judicial elections was irrelevant to a 

Voting Rights Act claim (November Order at 88-89), the January Order abolished  



    
partisan judicial elections in Texas and called for a non-partisan general election on May 

5, with a runoff on June 2, 1990. The Order preserved the aspect of the Mattox-LULAC 

Plan that required candidates to run for numbered "places" in special election districts; 

only after the election, after re-elected incumbents selected their specialties, would the 

"Administrative Judge" determine whether the voters had elected a judge of a civil, 

criminal, family or juvenile court. The January Order enjoined further elections under 

Texas' current system; it also certified the November Order for interlocutory appeal 

under 28 U.S.C. § 1292(b). 

On January 3, 1990, Judge Entz filed his Notice of Appeal of right under 28 U.S.C. § 

1292(a)(1). On January 5, 1990, Judge Entz filed his Emergency Application for Stay of 

the November Order. On January 11, 1990, this Court granted the application for stay 

and ordered that this appeal be expedited. On January 11, 1990, Judge Entz moved for 

leave to appeal under 28 U.S.C. § 1292(b). On January 12, 1990, that motion was granted 

and the discretionary interlocutory appeal was consolidated with the appeal of right under 

28 U.S.C. § 1292(a)(1) for disposition. 

B. Statement of Facts 

Dallas County is a large metropolitan area encompassing the seventh largest city in 

the U.S. (Dallas), and several smaller, respectably sized cities (Garland, Irving, Mesquite, 

Richardson and others). (DI-Dallas Ex. 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 

district court. (Tr. 5:81) Each court hears its own docket and decides its own cases; 

there is no collegial decision making by any collective body of district judges. (Id.) 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 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 at this particular time is that only an 

anomalous Democratic candidate can be elected as a district judge.5/ The flip side is 

that 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. Conversely, white 

Republican challengers have defeated highly qualified black Democratic incumbents who 

  

5/ The only Democratic judge in Dallas County is named Ron Chapman. Another Ron 
Chapman (of the Dallas based radio station KVIL, not of the Criminal Judicial District 

Court) is the host of the top-ranked morning radio show in the Metroplex. (Tr. 4:101) 

6/ This 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. 

 



   

had virtually every conceivable endorsement.” 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.8/ 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 Appellees’ 

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

5:283-84) It is abundantly true that black judicial candidates of both parties are faring 

  

7/ For 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 
papers, the Committee for a Qualified Judiciary (a non-partisan group), the local bar poll, 
and numerous civic groups. Although he was one of the highest polling Democratic 
candidates in Dallas County, he still lost in the Bush-led Republican sweep of Dallas 
County. (Tr. 2:244; 2:247-52). 

8/ See 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. Either the 
respondents believe that disk jockey is an elective office in Dallas, or the name 
recognition built up by constant advertising of the radio station overcame the instructions 
to the survey. 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). 

 



   

neither better nor worse because of their race. Judicial candidates in Dallas County win 

or lose due to their partisan affiliation, not their race. 

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 ninety-five 

percent (95%) for the Democratic candidate, with a phenomenal ninety-three percent 

(93%) casting straight ticket votes. (Tr. 5:280) White voters tend to vote sixty to 

seventy percent (60-70%) for the Republican candidate, with a much smaller 

twenty-eight percent (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. 

The facts recited above are undisputed in the record. Almost all witnesses dealing 

with Dallas County acknowledged the truth of those facts; the District Court, however, 

chose to ignore them, refused to make appropriate findings requested by Judge Entz, and 

went off on the confusing and reality-blinding excursion of bivariate ecological regression 

analysis to justify its conclusion that Section 2 had been violated. (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) 

Appellees’ 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 

drawn, rather than the population as a whole, regardless of what system of judicial 

 



   

selection was used. The undisputed evidence was that 2.2% of the lawyers in Dallas 

County are black. (Tr. 4:130) Dr. Champagnel0/ 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 which the District Court condemned had nothing 

to do with the percentage of minorities on the bench. 

The Appellees' 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 system other than permitting the election of 

some greater number of minority judges. The most probative testimony on this point, and 

some of the most poignant testimony in the trial, came from Judge Wright of Dallas 

County and Judge Sturns of Tarrant County. Both of these black Republican judges 

passionately 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 

  

9/ This 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. 

10/ Dr. Anthony Champagne is a professor of political science at the University of Texas 
at Dallas, specializing in judicial selection. He has published widely in the field. See, 
e.g., Champagne, The Selection and Retention of Judges in Texas, 40 Sw. L.]. 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. 

 



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. (Id.) 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) 

SUMMARY OF THE ARGUMENT 
  

Appellees here seek an unprecedented reconstruction of Texas' judicial election 

system by the federal government in a manner wholly inconsistent with the role the State 

of Texas has assigned to its judicial branch. The District Court erroneously determined 

that some "fixing has to be done, because the current system is broken" (November Order 

at 4), and has attempted to dismantle it. The supposed authority for this intervention is 

Section 2 of the Voting Rights Act,11/ which purportedly prohibits electoral practices 

that result in minority groups’ having a diminished opportunity to participate in the 

political process. As Judge Entz will show, Section 2 cannot bear the weight of the 

District Court's construction. Alternatively, if Congress intended to give Section 2 the 

force to destroy a state's judiciary based on the factual record in this case, then 

Congress overstepped the constitutional limits on its legislative authority. 

Judge Entz's arguments generally are double-barrelled: Section 2 should not be 

construed in a particular way, and alternatively that if it is construed that way, it is 

unconstitutional. The first of these two-part arguments deals with the overall reach of 

Section 2: whether Section 2 should apply to the judiciary.12/ This Court's decision in 

Chisom v. Edwards, 839 F.2d 1056 (5th Cir.), cert. denied, 109 S. Ct. 390 (1988), even if 

  

1V/ wa U.S.C. 8 1973. 

12/ The error discussed in the second part of this brief is perhaps more clear, since the 
District Court simply failed to follow binding precedent of this Court in evaluating 
whether there is racially polarized voting. Judge Entz addresses the coverage issues first 
in argument, however, since they are logically prior to the application issues.  



correct, is distinguishable. Chisom dealt with appellate courts; this case deals with trial 

courts. The crucial statutory issue is whether Texas' district court judges are 

"representatives" within the meaning of Section 2. Very real differences between trial 

and appellate courts compel a different result here than in Chisom. 

If Section 2 is held to apply to the judiciary, this Court must address whether such 

application is constitutional. Section 2 was enacted in response to the Supreme Court's 

construction of the Fifteenth Amendment and the pre-1982 Voting Rights Act in City of 

Mobile v. Bolden. Congress' amendment of Section 2, to delete any intent requirement in 

favor of a "strict liability" results test exceeds Congress’ enforcement powers under the 

Fifteenth Amendment. Alternatively, if Section 2 itself is proper, its application to a 

state judiciary violates fundamental principles of federalism and the intrinsic sovereign 

power of state governments. Though there are constitutional limits on the power of state 

governments to order their own affairs, there similarly are constitutional limits on the 

power of the federal government to dictate the structure of core characteristics of state 

government. If Section 2 truly applies to unintentional acts relating to the structure of 

the state judiciary, then Section 2 violates the residue of inviolable state sovereignty. 

Even if Section 2 should apply to the judiciary, it was misapplied in this case. At 

trial, it was clear that Appellees and Judge Entz shared many similar views of the basic 

facts pertinent to Dallas County, but had radically different views of the legal principles 

applicable under Section 2. Appellees, as well as the District Court, 13/ ignored this 

Court's recent opinion in Monroe v. City of Woodville, 881 F.2d 1327 (5th Cir. 1989). As 

  

13/ Although the District Court cites Monroe and, ironically, cites the very phrase of 
the opinion that proves its error, November Order at 21-22, it chose not to follow Monroe 
in its application of the law and instead followed Justice Brennan's minority construction 
of Section 2. Id. at 80, 88-89. With all respect to Justice Brennan, the District Court 
was obviously bound to follow this Court's interpretation of Section 2, rather than a 
construction a majority of the Supreme Court rejected.  



   

a result, Appellees failed to meet their factual burden of proof, and the District Court 

applied the wrong legal standard to the facts of the case. 

The District Court erroneously held that merely because the two racial groups14/ 

vote differently, racially polarized voting is established. See November Order at 89. 

Under Monroe, however, there must be a correlation with the race of the candidate and 

the minority groups’ voting pattern. The essence of the different legal positions can be 

summed up in the question: Does the race of the candidate matter when analyzing voting 

behavior? This Court in Monroe decisively said yes: "That a group's voting behavior is 

racially polarized indicates that the group prefers candidates of a particular race.” 881 

F.2d at 1331. Because the voting patterns in Dallas County hold true without regard for 

the candidates' race, there is no racially polarized voting in Dallas County, and 

Appellees’ claims fail to satisfy the third Gingles threshold test. 

The District Court erred in other ways in applying Section 2. The evidence showed 

that blacks have achieved electoral success in excess of their proportion in the pool of 

lawyers legally qualified to be judges in Texas. The District Court erroneously compared 

the percentage of minority judges to the percentage of minority voters, even though the 

vast majority of voters are ineligible to be judges. The District Court further ignored the 

complete absence of any proof of a causal nexus between the challenged practice -- 

county-wide elections -- and the objectionable result -- few minority judges. The only 

proof on causation was Judge Entz's proof that the cause of there being few minority 

judges is the fact that there are few minority lawyers. It has nothing to do with the 

method of election. 

Alternatively, if Section 2 is read to apply to require changes in practices that did 

not cause the racial imbalance, then it is nothing more than an unconstitutional 

  

14/ Appellees urged no claims on behalf of Hispanic voters in Dallas County, either 
independently or as part of a combined black-Hispanic case. See November Order at 15. 

 



    
affirmative action provision. Similarly, if Section 2 applies to protect partisan 

preferences of voters, rather than racial preferences, then it is an unconstitutional 

intervention in the political process. 

Finally, the particular interim plan imposed by the District Court is an 

unconstitutional denial of equal protection, an unconstitutionally arbitrary and capricious 

assignment of judicial specializations to particular districts, and an unconstitutional 

disenfranchisement of the vast majority of the affected voters for any given judge. 

Furthermore, there is no feasible single member district plan that avoids either these 

problems or the countervailing constitutional problem of the federal government 

dictating the finest details of the structure of a state judiciary. In conclusion, a review 

of the proof at trial shows that even if the District Court used a proper construction of 

Section 2, its ultimate factual conclusion was clearly erroneous. 

ARGUMENT 
  

I. SECTION 2 MAY NOT PERMISSIBLY APPLY TO TRIAL COURTS 

A. Overview of the Voting Rights Act 

Section 2(b) of the Voting Rights Act, as amended, provides as follows: 

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(b) (1988) (emphasis in original). Section 2 was a somewhat awkward 

political compromise in response to the Supreme Court's holding that the Voting Rights 

Act and the Fifteenth Amendment prohibit only intentional abridgement of the right to 

S43 - 

 



    
vote. City of Mobile v. Bolden, 446 U.S. 55 (1980). Congress wanted to establish a 

remedy under the Voting Rights Act without a showing of intentional discrimination, and 

so established the "results" test. Simultaneously, Congress wanted to avoid racial quotas 

and to preserve the legitimacy of the political process, in which sometimes candidates 

just lose, so it expressly denied any right to proportional representation. See S. Rep. No. 

97-417, 97th Cong. 2d Sess. 31 (1982), 1982 U.S. Code Cong. & Ad. News 177, 208. 

In enacting the 1982 amendments, the Senate Report enumerated factors that courts 

1" should consider in the "totality of circumstances." Those factors include: 

1. the extent of any history of official discrimination in the 
state or political subdivision that touched the right of the members 
of the minority group to register, to vote, or otherwise to 
participate in the democratic process; 

2. the extent to which voting in the elections of the state or 
political subdivision is racially polarized; 

3. the extent to which the state or political subdivision has used 
unusually large election districts, majority vote requirements, 
anti-single shot provisions, or other voting practices or procedures 
that may enhance the opportunity for discrimination against the 
minority group; 

4, if there is a candidate slating process, whether the members 
of the minority group have been denied access to that process; 

B. the extent to which members of the minority group in the 
state or political subdivision bear the effects of discrimination in 
such areas as education, employment and health, which hinder their 
ability to participate effectively in the political process; 

6. whether political campaigns have been characterized by overt 
or subtle racial appeals; 

7. the extent to which members of the minority group have been 
elected to public office in the jurisdiction. 

Additional factors that in some cases have had probative 
value as part of plaintiffs’ evidence to establish a violation are: 

whether there is a significant lack of responsiveness on the part of 
elected officials to the particularized needs of the members of the 

minority group, 

14 = 

 



    
whether the policy underlying the state or political subdivision's 
use of such voting qualification, prerequisite to voting, or standard, 
practice, or procedure is tenuous. 

S. Rep. No. 97-417, 97th Cong. 2d Sess. 28-29 (1982), 1982 U.S. Code Cong. & Ad. News 

177, 206-07. The "Senate Factors" are also sometimes referred to as the Zimmer 

factors, since they are derived almost verbatim from this Court's decision in Zimmer v. 

McKeithen, 485 F.2d 1297 (5th Cir. 1973), aff'd on other grounds, 424 U.S. 636 (1976) (per 

curiam). 

The Supreme Court first addressed the amended Section 2 in Thornburg v. Gingles, 

478 U.S. 30 (1986). In Gingles, the Supreme Court established a set of three preconditions 

that a plaintiff in a multi-member district dilution case must satisfy before even 

reaching the totality of the circumstances test: 

First, the minority group must be able to demonstrate that it is 
sufficiently large and geographically compact to constitute a 
majority in a single-member district. ... Second, the minority 
group must be able to show that it is politically cohesive. 
Third, the minority must be able to demonstrate that the white 
majority votes sufficiently as a bloc to enable it —- in the absence 
of special circumstances, such as the minority candidate running 
unopposed -- usually to defeat the minority's preferred candidate. 

Gingles, 106 S. Ct. at 2766-67. Appellees failed to show a Voting Rights Act violation 

under these principles. 

B. Section 2 Does Not Apply to Trial Judges 

1. District Judges Are Not "Representatives” Covered By Section 2. -- Assuming 

that Congress' 1982 amendments to Section 2 are constitutional, which Judge Entz will 

show to be untrue below, the question presented to this Court is whether its provisions, 

given their plain and ordinary meaning, encompass elections for trial judges. This Court 

held in Chisom v. Edwards, 839 F.2d 1056 (5th Cir.), cert. denied, 109 S. Ct. 390 (1988), 

that Section 2 applied to elections for supreme court justices in Louisiana. However, the 

instant case is distinguishable, and is not controlled by Chisom. Moreover, for the 

-15 

 



reasons discussed below, Chisom was wrongly decided and should not be extended, but 

should be confined to its narrow facts.15/ 

Chisom did not deal with trial judges. Rather, it held only that Louisiana supreme 

court justices, who sit as a collegial body to discuss and decide legal questions within 

their state, were "representatives" as that term is used in the Voting Rights Act. Id. at 

1058. Here, the Texas state district judges, unlike a supreme court justice, do not make 

law; they simply apply the law as it has been pronounced. Unlike supreme court justices, 

trial judges do not debate cases among themselves, coming to collective decisions on laws 

that have sweeping effects on various interest groups across the state. They are 

independent arms of the judicial system, hearing cases and dispensing justice, as it is 

defined by higher courts.18/ Even if the plain meaning of the word "representative" 

encompasses appellate justices who actually make law and change the law, it cannot 

grammatically or reasonably apply to trial judges. 

With due respect to this Court, Chisom was wrongly decided because, although it 

purportedly began its analysis with "the plain language of the Act," it is apparent that its 

conclusions truly were based on social and legislative history, not ordinary folks' "plain 

language.” See Chisom at 1059-1065. Great weight seems to be given to Senator 

Hatch's stray comment contained in the Senate Report. Id. at 1062. Clearly, the Court 

did not strictly follow the mandates of the plain meaning rule. There is no straight-up 

discussion of the ordinary meaning of the word "representative." When construing the 

meaning to be given a statute, a court is first to be guided by the plain meaning of the 

  

15/ To preserve his position in the event this Court should decide that Chisom is 
controlling, Judge Entz contends that Chisom was wrong and should be overruled. 

16/ Indeed, the record was full of the potential problems that likely would arise under a 
single member district regime if the judges were perceived as "representatives" of the 
voters in their districts. (Tr. 4:82; 4:191; 5:78-109) Even more frightening is the 
possibility that the judges would become representatives of powerful interests within 
their districts. (Tr. 4:83-85)  



   

words in the statute. U.S. v. Turkette, 452 U.S. 576, 580 (1981). Resort to inquiries into 

such murky waters as legislative history and attorney general opinions, which the Chisom 

court undertook, are inappropriate without first construing the statute under the plain 

meaning rule. "We are invited to make a lengthy examination of views expressed in 

Congress . . . to show [what] ... was intended. There is, however, no ambiguity in this 

Act to be clarified by resort to legislative history ...." Packard Motor Car Co. v. 

NLRB, 330 U.S. 485, 492 (1947). 

Legislative history is inherently unreliable, as it can be manipulated by any 

congressman who takes the time to express his views on the record as to what the statute 

means. Such statements are not ratified by Congress when they pass the bill, and, in 

reality, are rarely known by people who vote for the bill. "It must be assumed that what 

the members of the House and Senators thought they were voting for, and what 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.” U.S. 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. When the 

language of those laws is clear we are not free to replace it with unenacted legislative 

intent." I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 1224 (1987) (Scalia, ]J., 

concurring). 

Although in years past the Supreme Court may have appeared to deviate from this 

doctrine at times, it is clear that its more recent decisions have reaffirmed this 

standard. In U.S. v. Monsanto, 109 S. Ct. 2657 (1989), one party sought to persuade the 

Court of the righteousness of one of his positions through the use of legislative history. 

The Court responded: "In determining the scope of a statute we must look first to its 

17% 

 



    

language.” Id. at 2662. The Court then flatly 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 (citations omitted); instead Congress' intent is best 

determined by looking to the statutory language it chooses." Id. at 2663. 

The plain and ordinary meaning of the word "representative," the word that Congress 

chose, the word that was voted on and approved by Congress, and the word that the 

President signed into law is: "one that represents another or others ... one that 

represents a constituency as a member of a legislative body." Webster's Ninth New 

Collegiate Dictionary 1000 (1985). 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 1170 (5th ed. 1979). Therefore, under the plain meaning standard, 

Chisom's conclusion that Section 2 applied to the judiciary was wrong. The plain 

meaning of the term "representative" should not encompass appellate judges, who, in 

theory anyway, do not represent a constituency, but are intended to be independent 

arbiters of the law, without a political agenda or interest. In any event, the term 

representative most certainly cannot include trial judges who make no law, rules, or 

policy, so Chisom should not be extended to these facts. 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."). Ask anyone on the 

street; they will to a person say judges are different than "representatives." 

2. District Courts Are Single-Member Districts. -- Appellees are not entitled to 

relief because Section 2 does not apply to district courts that already are single member 

districts. The undisputed (and undisputable) proof at trial showed that Texas’ district 

~18 = 

 



   

courts are not collegial bodies. (Tr. 5:81) 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. The underlying policy behind 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 paradigm is simply lacking here. 

It is trivially true that the judicial districts are single member districts since each 

separate district court has only one member -- the judge. But in substance, as well as 

form, district courts are truly single member districts. If that premise is correct, then 

Appellees’ entire case is misdirected since a Voting Rights Act dilution case cannot 

prevail against something that is already in single member district form. Butts v. City of 

New York, 779 F.2d 141, 148 (2d. Cir. 1985). In any event, if district courts are 

understood as single member districts, Appellees failed to satisfy the first prong of the 

Gingles test because blacks are not a majority in the single member district -- Dallas 

County. 

C. Section 2 Is Unconstitutional 

If the Court finds that Section 2 does apply to district judges, as a matter of 

statutory construction, it must then consider whether the application of Section 2 to 

district courts is constitutional. That consideration is two-fold. First, is it constitutional 

for a federal court under the authority of a federal statute to dismantle one of the 

coordinate branches of a sovereign state government? If the statute survives that 

narrower attack, the Court must also determine whether the 1982 amendments to Section 

os 1 

 



    
2 were a proper exercise of power by Congress under the enabling clause of the Fifteenth 

Amendment.17/ 

1. Section 2 Cannot Constitutionally Apply to the State Judiciary. -- 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. 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 R.R. Co., 455 U.S. 678, 687 (1982); see also Garcia v. San Antonio Metro. 

Transit Auth., 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). Moreover, such 

interference would put Texas on unequal footing with other states, whose age-old method 

of judicial selection is not subject to such an attack. 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). 

Until recently, Section 2 of the Voting Rights Act was a vehicle to challenge the 

system of electing members to legislative and executive offices. If constitutionally 

adopted, it is an appropriate tool in these cases, and in no way impinges upon a state's 

right to establish and maintain its form of government in this republic. The judiciary, 

however, is different. 

  

17/ 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). 

WE Soe 

 



   

At the core of every state's government is the judiciary. Whether appointed or 

elected, according to the choice of the people of the particular state, the judiciary is the 

arbiter of its 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 Chisom v. Roemer, 853 F.2d 1186, 1190 (5th Cir. 1988) 

("The core value of the law and its implementing judicial system is stability ...."). The 

legislative and executive branches rightfully may be partial, but the judiciary must be 

impartial. Legislators may represent factions, but the judiciary must dispense equal 

justice to everyone. 

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, implementation of a constitutionally permissible 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. 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 Appellees 

offered, would violate the Tenth Amendment, the Fourteenth Amendment, the Guaranty 

Clause, and fundamental principles of federalism and separation of powers. 18/ 

  

18/ Congress' ability to interfere with the operation of state government under the 
authority of the Fifteenth Amendment is even more questionable since Section 2 is 
outside the scope of the amendment's literal protection. The Fifteenth Amendment 
protects only against the intentional denial of minority voter access. See City of Mobile, 
supra. The amended Section 2, in contrast, purportedly reaches unintentional action that 
affects the results in election outcomes. 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 
(Footnote continued to next page) 

- 3 

 



2. Section 2 Was 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.19/ 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 only 

discriminatory intent was prohibited.29/ 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 

  

(x ootnote continued from previous page) 
18/of a statute to displace sovereign state governmental functions must be 
correspondingly reduced. 

19/ This Court's decision in Jones v. City of Lubbock, 727 F.2d 364 (5th Cir. 1984), 
which held that Congress "could appropriately determine that a 'results' test was 
necessary to enforce the fourteenth and fifteenth amendments,” id. at 375, does not 
control the arguments in this section. In Jones, the City of Lubbock missed the mark 
when it urged that "neither Section 5 of the fourteenth amendment nor Section 2 of the 
fifteenth amendment authorizes Congress to enforce the substantive provisions of those 
amendments by prohibiting discriminating results." Id. at 373. The question of Section 
2's appropriateness under the Fourteenth Amendment should not have been before this 
Court. Thus, although Jones responds to some constitutional challenges to Section 2, its 
disposition of a misguided attack does not forever immunize Section 2 against all 
constitutional challenges, such as the distinct new attacks on Section 2 that Judge Entz 
now urges. In the alternative, if the Court believes that Jones controls, for purposes of 
preserving future review Judge Entz claims that Jones was wrong. 

20/ "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. & Ad. News 177, 342-43.  



    

"remedial" measure.21l/ Finally, Section 2 has an unconstitutional retroactive effect.22/ 

This Court, like the Subcommittee, should find that Section 2 is unconstitutional for those 

reasons. 

  

21/ "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 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 

22/ "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. 

93 

 



    

Section 2 is unconstitutional for the further reason that the substantive values 

protected by the results test cannot be protected under the Fifteenth Amendment, the 

constitutional provision under which Congress justified its intrusion into state 

sovereignty. Qualitative vote dilution is prohibited by the Equal Protection Clause of the 

Fourteenth Amendment, not by the Fifteenth Amendment. 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, like the prohibitions against vote 

dilution which Congress has attempted to incorporate into Section 2 of the Voting Rights 

Act, springs from the Fourteenth Amendment.23/ The Voting Rights Act legislation, 

however, is not based upon the Fourteenth Amendment. Rather, it is based upon the 

Fifteenth Amendment. City of Mobile v. Bolden, 446 U.S. at 61. The Fifteenth 

Amendment does not encompass an equal protection/racial dilution claim. "The 

Fifteenth Amendment does not entail the right to have Negro candidates elected . . . that 

amendment prohibits only purposeful discriminatory denial or abridgment by the 

government of the freedom to vote ...." Id. at 65. The Fifteenth Amendment protects 

only access to the ballot; it only prevents the states from prohibiting blacks from the 

physical casting of ballots or participating in the political process. Id. at 64.24/ 

  

23/ 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. City of Mobile v. Bolden, 446 U.S. 55, 66 
(1980); 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. 

24/ The long and consistent thread binding years of Supreme Court Fifteenth Amendment 
cases attests to this fundamental principle. Beginning in companion cases Guinn v. U.S., 

238 U.S. 347 (1915), and Myers v. Anderson 238 U.S. 368 (1915), the Court outlawed the 
application of "grandfather clauses” which 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 actually operated to deny 
black citizens access to the polls. 
(Footnote continued to next page) 

“34 

 



   

Passage of the "results" standard is not an appropriate exercise of congressional 

authority when such authority is derived from and limited by the reaches of the Fifteenth 

Amendment. "The basic test to be applied in a case involving § 2 of the Fifteenth 

Amendment is the same as in all cases concerning the express powers of Congress with 

relation to the reserved powers of the states.” South Carolina v. Katzenbach, 383 U.S. at 

326. It is Justice Marshall's famous test: "Let the end be legitimate, let it be within the 

scope of the Constitution and all means which are appropriate, which are plainly adapted 

to that end ... are constitutional." McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 421 

(1819). "Appropriate" has been defined in Ex parte Virginia, 100 U.S. 339 (1879), to be 

laws "adapted to carry out the objects the Amendment has in view, whatever tends to 

enforce submission to the prohibitions they contain." Id. at 345-46. 

Though it is rare that Congress oversteps its Fifteenth Amendment power, the 

Supreme Court does not hesitate to strike down statutes exceeding that permissible 

scope. See U.S. v. Reese, 92 U.S. 214 (1876) (law rendering it illegal to refuse to count 

the votes of qualified voters ruled outside the scope of the Fifteenth Amendment which 

  

14 gotnote continued from previous page) 

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 exercise of congressional 
authority to protect minority access to the polls. 

- 25 

 



    
prevents only the failure to count black votes); James v. Bowman, 190 U.S. 127 (1903) 

(law prohibiting anyone from bribing a black voter to prevent him from voting was 

unconstitutional because only states and state actions are prohibited from depriving black 

franchise). Creating a standard for proving vote dilution, which is prohibited by the Equal 

Protection Clause, has absolutely nothing to do with prohibiting the physical denial of 

ballot casting by minorities. It attacks evils not comprehended by the Fifteenth 

Amendment, and is, therefore, an unconstitutional overreach of congressional power. The 

"results" standard is not "plainly adapted" to guarantee minority access to the polls; it is 

not even remotely adapted in any way to guaranteed access, which is the sole and entire 

scope of the Fifteenth Amendment. Thus, it is not constitutional. 

II. THE DISTRICT COURT APPLIED IMPROPER 
LEGAL STANDARDS UNDER SECTION 2 

The balance of this brief assumes that Section 2 does constitutionally apply to state 

district court judges. The November Order should still be reversed because the District 

Court used an improper interpretation of Section 2. In particular, the District Court 

failed to follow this Court's definition of racially polarized voting from Monroe v. City 

of Woodville. Alternatively, if the District Court's interpretation of Section 2 is correct, 

then the statute is unconstitutional as applied. 

A. The District Court Rejected This Court's Test 
for Racially Polarized Voting Under Section 2 

The fundamental flaw in the District Court's judgment is that it bottomed its finding 

of racially polarized voting on the mere fact that blacks and whites vote differently. See 

November Order at 89. The District Court held that "party affiliation, straight party 

ticket voting and campaign factors [are irrelevant] .... [I]t is the difference between 

choices made by blacks and whites alone and not the reasons why they vote differently 

 



   

that is the central inquiry of § 2."25/ Id. (citations omitted). Under Monroe v. City of 

Woodville, 881 F.2d 1327 (5th Cir. 1989), that plainly is an incorrect statement of the 

law. Appellees made the same mistake, and simply failed to prove racially polarized 

voting in Dallas County. Absent meeting this Gingles precondition, the Court need not 

even consider the totality of circumstances. Id. at 1330. 

1. Voting In Dallas Is Not "Racially Polarized” Because Black Voters in Dallas Do 

Not Prefer Black Candidates. —-- As suggested by the review of the evidence above, state 

district court judicial elections in Dallas County are characterized by partisan polarized 

voting, not by racially polarized voting. This conclusion is based on a view of racially 

polarized voting that requires that the polarization be somehow related to the race of the 

candidate,26/ and not just a reflection that blacks generally vote "differently" than 

whites. This view amply is supported by Monroe, prior Supreme Court case law, and the 

legislative history of the amended Section 2. Appellees’ and the District Court's legal 

position was that the race of the candidate is irrelevant in the racially polarized voting 

analysis, and that all that matters is whether whites vote differently than blacks. That is 

dead wrong and mandates reversal of the District Court's judgment. 

Monroe illuminates the deficiencies in the District Court's judgment and Appellees’ 

proof at trial. In Monroe, the district court found racially polarized voting but not 

political cohesiveness. Plaintiffs argued on appeal that a finding of one necessarily 

entails a finding of the other. In rejecting that position, this Court emphasized the 

difference between the two factors: 

  

25/ Although the District Court said that, the Court obviously did not believe what it 
said. When it imposed an interim remedy, the only change it made in the proposed 
Mattox-LULAC Plan was to make elections non-partisan. See January Order at 6. This 
was consistent with the District Court's personal biases, as well. November Order at 4. 

26/ This is distinct from saying that the polarization is caused by intentional 
discrimination by white voters against black candidates; it simply says that the race of 
the candidate is a causal factor in the polarization, for whatever reason that may occur. 

-2 

 



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). Under Monroe v. City of Woodville, all of Appellees’ statistical evidence shows 

merely political cohesiveness -- black voters generally unite behind a single political 

platform of common goals and common means by which to achieve them, i.e., the 

Democratic party. The proof at trial showed that in excess of ninety percent (90%) of 

black voters will vote for the Democratic candidate for district judge, without regard for 

that candidate's race, and that around sixty to seventy percent (60-70%) of white voters 

will vote for the Republican candidate for district judge, again, without regard for that 

candidate's race. Because that preference was undisputedly shown to hold true without 

regard for the race of the candidate, Appellees have wholly failed to show racially 

polarized voting, i.e., that black voters prefer candidates of a particular race.27/ 

  

27/ Aside from the force of Monroe v. City of Woodville, Appellees also could not 
establish racially polarized voting because even the black favored candidates -- 
Democrats -- obtained significant white support, ranging from thirty to forty percent 
(30-40%). See Overton v. City of Austin, 871 F.2d 529, 537 (5th Cir. 1989) (existence of 
minority candidate who obtained majority vote in some Anglo precincts and other 
elections showing white vote of 47% for minority candidate, among other facts, rebuts 
racially polarized voting); Houston v. Haley, 859 F.2d 341, 346 (5th Cir. 1988), vacated on 
other grounds, 869 F.2d 807 (5th 1989) (mere showing of some cross-over white support 
for losing black candidate is "a circumstance which plainly calls into question the 
existence of white bloc voting"). As Dr. Taebel testified, the proper way to look at 
judicial voting in Dallas is that there are at least two white blocs -- a Democratic bloc 
and a larger Republican bloc. (Tr. 5:282) The fact that Democratic candidates typically 
(Footnote continued to next page)  



   

2. This Court's Definition of "Racially Polarized Voting” Is Consistent with Prior 

Constructions of Section 2. -- The holding in Monroe v. City of Woodville that racially 

polarized voting requires a showing that majority and minority voters prefer candidates 

of their own race is consistent with Gingles, with the legislative history of the Section 2 

amendments, and with the Fifth Circuit's prior discussions of Gingles. 

The District Court, although noting that Justice Brennan did not speak for the 

majority of the Court on this proposition, 28/ clung to Justice Brennan's language in 

Gingles to support the proposition that reality -- partisan politics determines the 

outcome of judicial elections rather than race -- should be ignored. A fair reading of 

Gingles, however, illustrates the District Court's error. There were three opinions in 

Gingles. Justice Brennan wrote the opinion for the Court, but he lost the vote of Justice 

White, his fifth vote, when he claimed that "the race of the candidate per se is irrelevant 

to racial bloc voting analysis." Gingles, supra, 478 U.S. at 67. 

The majority of the Court rejected this language as inconsistent with precedent and 

grossly unworkable. Justice White characterized Justice Brennan's comments as 

"interest group politics rather than a rule hedging against racial discrimination" and 

probably not "what Congress had in mind in amending Section 2 as it did." Id. at 83. As 

will be shown infra, that is definitely not what Congress had in mind, as illustrated by 

their explicit explanations in the legislative history. 

Justice O'Connor, writing separately for four members of the Court, saw the issue 

clearly and stated "that the plurality's conclusion that the race of the candidate is 

always irrelevant in identifying racially polarized voting conflicts with Whitcomb [v. 

  

Footnote continued from previous page) 
27/10se reflects nothing more than normal democratic processes of a majority winning, 
and says nothing about racial polarization among white voters. 

28/ See November Order at 8 n.7. 

 



    
Chavis] ...." Id. at 103. Thus, a majority of the Supreme Court in Gingles was of the 

opinion that the race of the candidate was important in determining racially polarized 

voting, and not just whether black voters supported different candidates from white 

voters.29/ 

Finally, Monroe v. City of Woodville is consistent with prior Fifth Circuit readings of 

Gingles. In Citizens for a Better Gretna v. City of Gretna, 834 F.2d 496 (5th Cir. 1987) 

cert denied, 109 S. Ct. 3213 (1989), this Court rejected appellant's contention, like 

Appellees’ here, that the race of the candidate does not matter and only the race of the 

voter matters. Id. at 503. The Court also noted, as mentioned above, that Justice 

Brennan's contrary views on this issue were rejected by a majority of the Supreme 

Court. Id. Similarly, in Campos v. City of Baytown, 840 F.2d 1240 (5th Cir. 1988), cert 

denied, 109 S. Ct. 3213, 3214 (1989) this Court equated a finding of racially polarized 

voting with evidence "that white bloc voting usually defeats the minority candidate." Id. 

at 1249 (emphasis added). Thus, the Fifth Circuit's recent pronouncement in Monroe v. 

City of Woodville is entirely consistent with Supreme Court and Fifth Circuit precedent, 

so Appellees’ position was as untenable before that case as it is after it. 

3. A Definition of "Racially Polarized Voting” Acknowledging the Existence of 

Partisanship Is Consistent with Congress’ Intent In Enacting the Results Test. —- This 

case does not present this Court with the need to consider whether a trial court could or 

  

29/ This reading is also consistent with the language of Section 2 and the legislative 
history. Section 2 itself refers to the "extent to which members of a protected class 
have been elected to office." If the race of the candidate were irrelevant, Congress 
surely would not have made electoral success of minority candidates a factor. More 
significantly, the legislative history explicitly identifies racially polarized voting with the 
race of the candidate: "An aggregate of objective factors should be considered such as 

. racially polarity [sic] voting which impedes the election opportunities of minority 
group members . ..." H.R. Rep. No. 97-227, at 30. Thus, the House of Representatives 
understood racially polarized voting in the same manner as the Fifth Circuit in Monroe v. 
City of Woodville -- it is voting based on the race of the candidate that prevents 
minority group candidates from being elected. 

~30 = 

 



   

should consider the myriad factors that might cause a correlation between group voting 

patterns and the race of particular candidates. The point of the proof regarding partisan 

voting was not to explore alternate explanations for the results of elections -- a 

multivariate causal inquiry that some courts have attempted to avoid. Rather, the proof 

of partisan voting was offered to rebut any inference that might arise that racially 

polarized voting was a valid description for Dallas County election results. The Supreme 

Court in Whitcomb v. Chavis, 403 U.S. 124 (1971), already has established that when bloc 

voting is related to partisanship rather than race of the candidate, as it is in the instant 

case, there is no violation. 

In articulating the manner in which Section 2 should be applied, Congress was careful 

to express its agreement with both the reasoning and the outcome of Whitcomb.39/ In 

Whitcomb, the Court rejected black voters' challenge to an election plan calling for the 

at-large election of eight state senators and fifteen assembly members from a 

county-wide multimember legislative district. The black voters prevailed in the trial 

court by proving that an at-large system existed, and under it their group consistently 

was underrepresented in the legislature in comparison with their proportion of the 

population —- which is all Appellees proved in the instant case.31/ 

  

30/ Congress specifically stated that Whitcomb was to be a guiding factor in applying the 
amended Section 2. "The 'results’' test to be codified in Section 2 is a well defined 
standard, first enunciated by the Supreme Court and followed in numerous federal court 
decisions.” S. Rep. No. 97-417, 97th Cong. 2d Sess. (1982), 1982 U.S. Code Cong. & Ad. 
News 177, 193. In Congress' discussion of that "well defined standard," Whitcomb is 
discussed in detail. Id. at 197-98, and is discussed as illustrative throughout the 
Committee Report. See id. at 197-208. Simply stated, Congress used Whitcomb, as well 
as White v. Regester, 412 U.S. 755 (1973), as its model for the construction of the 
amended Section 2. "As explained in the Committee Report, the new subsection codifies 
the legal standard articulated in White v. Regester, a standard which was first applied by 
the Supreme Court in Whitcomb v. Chavis . . . ." Id. at 364. 

31/ That is in proportion to the number of voters in Dallas County -- not in proportion to 
the number of eligible candidates. 

-31- 

 



    

The Supreme Court rejected the black group's position and analyzed evidence 

hauntingly similar to the evidence in this case. In Whitcomb, the evidence was that the 

black group's area voted Democratic, and that Republicans had won four of the five 

elections from 1960 to 1968. The Court concluded: 

The failure of the ghetto to have legislative seats in 
proportion to its population emerges more as a function of losing 
elections than of built in bias against poor Negroes. The voting 
power of the ghetto residents may have been 'cancelled out,’ as 
the District Court held, but this seems a mere euphemism for 
political defeat at the polls. 

403 U.S. at 153. All Appellees proved at trial below was that black (and white) 

Democratic judicial candidates lose at the polls to white (and black) Republican judicial 

candidates.32/ That proof simply fails to establish racially polarized voting, and the 

District Court's judgment based solely on an incorrect legal standard that recognizes 

such irrelevant proof must be reversed. 

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

One of the factors pertinent to a Section 2 analysis is the degree of minority 

success. Inherent in this factor is the choice of baseline against which success is 

  

32/ The same proof also shows that Appellees cannot meet the third Gingles threshold 
requirement because, on these facts, they cannot show that the losing black judicial 
candidates were in any realistic sense the "candidate of choice" of black voters in Dallas 
County. The evidence showed that the vast majority of black voters did not know who 
those candidates were and did not vote specifically for them, but rather generally for a 
straight Democratic ticket. (Tr. 4:127-29) The evidence also showed that had those 
candidates run as Republicans, and all other things been equal, they would have won the 
election but obtained virtually no black votes. (Tr. 2:172; 3:43, 57; 5:283-84) The 
evidence was conclusive that the votes they received had virtually nothing to do with the 
candidates themselves, who were admittedly highly qualified, but rather with their party 
affiliation. (Tr. 4:129) Indeed, if Appellees’ view of "candidate of choice" were correct, 
even the proverbial "yellow dog" would be the judicial candidate of choice of black 
voters. The absurdity of that consequence shows the fallacy of Appellees’ argument. 
The losing black candidates were not the candidates of choice, but simply candidates 
running under the party of choice of black voters. That is not sufficient to meet Gingles' 
third prerequisite, and the District Court's improper application of this additional 

Gingles threshold also requires reversal. 

-3g . 

 



    
measured. The District Court applied an incorrect measure for the degree of minority 

success, and its factual conclusions are tainted by this improper legal standard. In two 

recent employment discrimination cases, the Supreme Court has held under those 

analogous principles that the proper comparison is to the percentage of minorities in the 

pool of qualified candidates. See Wards Cove Packing Co. v. Atonio, 109 S. Ct. 2115 

(1989); City of Richmond v. J.A. Croson Co., 109 S. Ct. 706 (1989). Although those cases 

were not Section 2 cases, federal courts often borrow from similar areas when 

considering issues raised by Section 2. See, e.g., Coalition to Preserve Houston v. Interim 

Bd. of Trustees of Westheimer Ind. School Dist., 494 F. Supp. 738, 742, (S. D. Tex. 1980) 

aff'd, 450 U.S. 901 (1981). Compared to that measure, blacks have achieved electoral 

success in excess of their representation in the pool of legally qualified candidates. 

This interpretation of the degree of success makes particular sense under the facts 

of this case. The proof at trial showed that any "underrepresentation" of blacks was not 

caused by county-wide election of district judges, but was caused by their 

"underrepresentation” in the pool of legally qualified potential judicial candidates. 

Although few courts have explicitly considered whether Section 2 includes a requirement 

that the challenged practice cause the objectionable result, but see Whitfield v. 

Democratic Party, 686 F. Supp. 1365, 1382 (E.D. Ark. 1988) (explicitly acknowledging a 

causation requirement), it is clear that the Voting Rights Act applies only to electoral 

practices that were the cause of the underrepresentation. 

Initially, Section 2 itself applies only to an act or practice that "results in a denial or 

abridgement of the right... to vote ...." Voting Rights Act § 2(a), 42 U.S.C. § 1973(a) 

(1988). The use of "results" indicates that a causal link is required. Causation also 

formed the basis for the Supreme Court's threshold test in Gingles; unless those factors 

are established "the use of multimember districts generally will not impede the ability of 

minority voters to elect representatives of their choice." Gingles, supra, 106 S. Ct. at 

=33 - 

 



2766. Thus, the three-part test is meaningful because unless those criteria are met, the 

challenged practice could not be the cause of minority voters' inability to elect 

representatives of their choice. 

Appellees did not prove that county-wide election of judges is the cause of there 

being fewer minority judges than their numbers in the population at large would suggest. 

Indeed, Dr. Engstrom explicitly disclaimed any opinion regarding the cause of the results 

that he observed. (Tr. 2:134) Prof. Champagne explained that the relatively low number 

of minority judges (8.4%) is caused by the relatively lower number of minority lawyers 

who are legally qualified to run for judge (3.3%). (Tr. 4:130; DI-Dallas Ex. 18A) Although 

abolishing county-wide elections might result in greater numbers of minority judges, that 

does not justify such action for two reasons. First, as a matter of logic, it would be 

treating the symptom rather than the disease; second, as a matter of law under the 

Voting Rights Act, relief is improper unless the challenged practice is the cause of the 

problem. Whether a remedy would effectively respond to the legitimate concern of there 

being few minority judges by increasing that number is not the question; the Court cannot 

order a remedy without a violation of a right, and if the challenged practice did not cause 

the problem, it does not violate the Voting Rights Act. Alternately, the real cause of any 

"underrepresentation” of minorities on the bench shows that there is no problem in terms 

of Section 2 -- minorities have achieved greater than the degree of electoral success one 

would expect from the percentage of minority lawyers legally qualified to be judges in 

Texas. 

C. If the District Court Properly Applied 
the Voting Rights Act, that Act Is Unconstitutional 

1. The Voting Rights Act Is Unconstitutional Unless the Race of the Candidate 

Matters. —- Under the Fifth Circuit's Monroe v. City of Woodville opinion, racially 

polarized voting under the Voting Rights Act implies that the race of the candidate  



   

causes the polarization. This is not only the law -- it is the only interpretation that is 

constitutional. Otherwise, the Voting Rights Act could be twisted to protect the 

interests of political parties —- in this case the Dallas County Democratic party -- rather 

than racial minorities. As Justice White said in his concurring opinion in Gingles, Justice 

Brennan's analysis would work to advance "interest group politics rather than a rule 

hedging against racial discrimination.” Gingles, 106 S. Ct. at 2784. The remedy 

Appellees seek with respect to Dallas County would obviously advance the prospects of 

the local Democratic party rather than the black population. A reading of the Voting 

Rights Act that takes out the concept of protecting minorities against voting polarized 

against them because of the race of their candidate and substitutes a view that partisan 

preferences of political groups are to be protected would unconstitutionally interfere 

with the political process. See Whitcomb v. Chavis, 403 U.S. 124 (1971); United Jewish 

Organizations v. Carey, 430 U.S. 144 (1977). But cf. Davis v. Bandemer, 478 U.S. 109 

(1986). 

2. The Voting Rights Act Is Unconstitutional Unless it Requires a Causal Link 

Between the Challenged Practice and the Claimed Harm. -- The Voting Rights Act 

should provide a remedy only for electoral practices that caused the lower representation 

of minorities, since it otherwise would be unconstitutional. Appellees failed to prove that 

the system of county-wide election of district judges in Dallas County caused any alleged 

electoral failure of black judicial candidates. All Appellees proved is that, in the 1980s, 

Republicans have dominated the district bench. They have argued that a system designed 

to end this domination would lead to the election of more black judges. Providing a 

remedy under Section 2 under these circumstances -- a case in which the challenged 

practice is not the cause of the claimed harm -- would render it an unconstitutional 

affirmative action program designed to provide relief merely upon a showing that a 

change in an electoral practice might increase the success of black candidates. City of 

 



   

Richmond v. J.A. Croson Co., 109 S. Ct. 706 (1989); Regents of the University of 

California v. Bakke, 438 U.S. 265 (1978). 

III. THE DISTRICT COURT'S INTERIM REMEDY, 
AND ANY CONCEIVABLE SINGLE MEMBER DISTRICT REMEDY, 
WOULD VIOLATE SIGNIFICANT CONSTITUTIONAL PROVISIONS 

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 jurisdiction, venue and 

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 be unconstitutional. 

Absent a constitutional remedy, Appellees are not entitled to relief. 

Cases filed in Dallas County are randomly assigned to the various judges' dockets. 

By adopting smaller than county-wide district in the interim plan while preserving 

county-wide jurisdiction and venue, the District Court has ensured that residents of 

Dallas County will have cases heard by judges for whom they cannot vote or vote 

against. 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. In such a case, the voters are unconstitutionally disenfranchised, just as the 

nonproperty owners in Cipriano v. City of Houma, 395 U.S. 701, 706 (1969), 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 its misguided haste to 

advance voting rights of the minority, the District Court has unconstitutionally deprived 

most voters of their "judicial" voting rights. 

-' 36 

 



   

The interim plan also illustrates the difficulties that will arise in allocating newly 

created courts in between the decennial censuses. The allocational problem in Dallas 

County was dividing thirty-seven judicial positions among a different number of state 

legislative districts. At the urging of Appellees 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 in the name of equal rights. The same kind of allocation problem will inevitably 

occur under any plan to create additional judicial districts between the censuses in 

response to increased case load. 

The interim plan also unconstitutionally allocates courts of the various 

specializations among the various judicial districts; it permits the county administrative 

judge to allocate specialization after the election however he or she sees fit. Thus, some 

voters are 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 specialize courts. Moreover, 

under the specifics of the interim plan, the discretion of the administrative judge 

apparently is wholly unconstrained, which also is surely a violation of due process and 

equal protection. See Hurtado v. California, 110 U.S. 516, 535-36 (1884). 

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; U.S. 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 has 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 

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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. 

Most conceivable plans for single member judicial districts will have the 

constitutional infirmities found in the interim plan. The only alternative to avoiding 

those problems would be to alter the current systems of court specialization, jury 

selection, venue, and court administration. These established systems have evolved 

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 Commerce Clause 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 [.C.1. 

IV. THE DISTRICT COURT'S FINDING UNDER THE TOTALITY 
OF CIRCUMSTANCES WAS CLEARLY ERRONEOUS 

A. The District Court Used An 
Improper Standard of Proof 

In view of the serious nature of the potential intrusion here by the federal 

government into one of the fundamental sovereign aspects of state government, it is 

appropriate to hold Appellees to a higher than normal standard of proof. In particular, 

the Court should require a showing by Appellees of clear and convincing evidence to 

justify dismantling and rebuilding the Texas judicial system. Cf. Campos v. City of 

Baytown, 849 F.2d 943, 946 (5th Cir. 1988) (Higginbotham, J., dissenting from denial of 

rehearing en banc). If a civil action for fraud with no greater consequences than money 

damages merits that higher evidentiary standard, surely the judicial system of Texas does 

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as well. This Court in Chisom v. Roemer, 853 F.2d 1186 (5th Cir. 1988), noted the 

delicate nature of federal court intrusion into the state judiciary: 

Our analysis begins with the staunch admonition that a federal 
court should jealously guard and sparingly use its awesome powers 
to ignore or brush aside long-standing state constitutional 
provisions, statutes, and practices. There can be no doubt that 
under the Supremacy Clause, federal courts do and indeed must 
have this authority in our unique form of government. It is the use 
of this power that must be maintained in the balance, a balance 
which is more delicate than usual when a state's judicial process is 
involved. 

Id. at 1189 (footnote omitted). Given the delicacy of the balance at stake here merits, at 

minimum, a higher burden of proof than the normal preponderance of the evidence must 

be required. 

B. Appellees Used Outdated Statistical Data 

Finally, Appellees have simply failed to carry their burden of proof. Dr. Engstrom's 

and Dr. Weiser's data all rest upon the 1980 Census. (Tr. 2:136; 3:4-6) Dr. Engstrom 

conceded that there had been many changes in Dallas County's population since 1980, 

which he had not taken into account. (Tr. 2:135-42) Judge Entz offered testimony 

showing that there have been dramatic changes in Dallas County's demographics since 

1980 caused by dispersal of blacks throughout the county, black residents moving into the 

county and living outside traditional predominantly black neighborhoods, a 

disproportionate increase in Hispanic population, and a dramatic increase in Oriental 

population, to perhaps as much as 100,000 residents who were wholly excluded from 

Appellees’ analysis. (Tr. 3:43-44; Summary of Marshall Deposition, DI-Dallas Ex. 24) As 

this Court said recently in criticizing use of dated 1980 Census figures, "Whatever the 

voting age population composition was then, given mobility, mortality, and coming of age, 

we cannot tell with any certainty what it is today . . . ." Houston v. Haley, 859 F.2d 341, 

349 (5th Cir. 1988), vacated on other grounds, 869 F.2d 807 (5th Cir. 1989); see also id. at 

344 (noting that plaintiff "who bore the burden of proof -- has provided us with little 

-30- 

 



more than a basis for speculation regarding the present black voting age population") 

(emphasis in original). 

Even were there no changes over time from the 1980 Census, Appellees’ statistics 

are still flawed by unproven, counter-intuitive assumptions in their underlying data. 

Appellees’ experts relied upon demographic data for total population as a surrogate for 

data reflecting the racial composition of actual voters in judicial elections. That assumes 

that all racial groups will, in equal measure: (1) have a voting age population proportion 

equal to their total population proportion, (2) register to vote in proportion to their voting 

age population proportion, (3) show up to vote in proportion to their registered voter 

proportion, and (4) vote in down-ballot judicial elections in proportion to their actual 

voting proportion. None of those assumptions has been tested, and Dr. Engstrom candidly 

admitted that he made them simply because the true data he needed was not available. 

(Tr. 2:138) In critiquing similar statistical assumptions, this Court has noted: "Although 

we agree that absolute perfection in the base statistical data is not to be expected, a 

trial court should not ignore the imperfections of the data used nor the limitations of 

statistical analysis.” Overton v. City of Austin, 871 F.2d 529, 539 (5th Cir. 1989). In 

short, Appellees’ underlying data is so flawed that they have failed to meet an 

evidentiary burden of preponderance of the evidence, much less the higher clear and 

convincing standard that should be applied here.33/ The Trial Court's findings of fact, 

  

33/ The Court should give no weight to the Dallas County Plaintiff-Intervenors' proof 
regarding non-judicial elections. Although this Court has permitted use of "exogenous" 
elections, Citizens for a Better Gretna v. City of Gretna, 834 F.2d 496, 502 (5th Cir. 
1987), that was only "in light of the sparsity of available data.” Appellee LULAC's 
non-Dallas County expert, Dr. Brischetto, testified that he would not look to exogenous 
elections if there were as many as three district court elections. (Tr. 1:118-19) In Dallas 
County, there have been seven general and two primary elections for district judge with 
black candidates. With that volume of elections, there is no need to look at non-judicial 
elections. This is especially true given the nature of the other elections used. They were 
typically not partisan, they involved different jurisdictions, some of them had more 
nearly racial implications, they were on shorter ballots, and they were much higher 
(Footnote continued to next page)  



   

which are almost entirely based upon Appellees’ statistical analysis, are, therefore, 

clearly erroneous. 

C. Under the Proper Standard of Proof the 
District Court's Conclusions Were Clearly Erroneous 

A review of the remaining Zimmer factors under a proper standard of proof, with 

cognizance of the fundamental factual deficiencies of Appellees’ statistical proof, shows 

that the District Court's ultimate conclusion of fact regarding county-wide elections was 

clearly erroneous. 

1. Electoral Success. -- First, the degree to which minority candidates have 

obtained electoral success is in Judge Entz' favor. Out of the nine contested primary and 

general district court elections with black candidates, the black candidate won four of 

those elections. (Tr. 4:105; DI-Dallas Ex. 9A) This approaches fifty percent, which 

surely is about how many white candidates win contested elections (since one candidate 

must lose every contested election). Significantly, in primary elections where partisan 

affiliation is not a factor, the black judicial candidates won both contested primaries 

against white opponents. (Tr. 4:105)34/ 

2. Types of Election Systems. -- The record before the Court does not show any of 

the "enhancing" factors under the third Zimmer factor. Dallas County is not an unusually 

  

1 ootnote continued from previous page) 
33/ profile that the invariably low-profile, issue-less district court campaigns. 
Accordingly, the Court should disregard that evidence. 

34/ This Court recently noted in considering this factor that the emphasis under Section 
2 is on "political processes that denied citizens the opportunity to elect representatives 
of their choice." Houston v. Haley, 859 F.2d 341, 347 (5th Cir. 1988), vacated on other 
grounds, 869 F.2d 807 (5th Cir. 1989) (emphasis in original). The evidence here is that all 
four losing black Democratic judicial candidates were invited to run as Republicans, 
would have won as Republicans, but chose not to run under that party. (Tr. 2:172-73, 176; 
2:209; 2:248-49; 5:283-84) They certainly had an opportunity to win, but rejected it. A 
conscious choice by candidates to lose surely does not show that Dallas County's present 
system of electing judges denied citizens the opportunity to elect the very candidates 
that Appellees argue were the choice of the black community. 

= 4) 

 



    

large electoral district; it simply reflects the long Texas tradition of using the county 

government as the basic unit for delivering judicial services to the people, a policy that 

finds it roots as deep as the Texas Revolution. (Tr. 4:138-39) Post-primary judicial 

elections do not have a majority vote requirement. Finally, although judges run for 

specific courts, that is a reflection of the autonomy of each court and its status in the 

true sense of the term as a single member judicial district. There was no showing that 

this fact in any way enhanced the inability of black voters to elect Democratic judges. 

3. Existence of a Discriminatory Slating Process. -- The record shows no slating 

process, and the District Court agreed. See November Order at 72. 

4. Lingering Effects of Past Discrimination. -- Appellees failed to show that blacks 

suffer the effects of discrimination in areas such as education, employment and health 

that hinder their ability to participate effectively in the political process. Although 

LULAC introduced exhibits showing that blacks have lower socioeconomic status 

generally than whites in Dallas County, there was no testimony showing that, at this date, 

such lower status is directly a result of prior discrimination or that it hinders the ability 

of blacks to participate in the political process.3%/ And although LULAC attempted to 

elicit testimony of that sort from Dr. Dyer, he stated that he was not qualified to give 

such testimony and expressed personal reservations about whether a causal link could be 

shown between today's socioeconomic status and discrimination of years and decades 

ago. (Tr. 4:320-21) 

5. Tenuousness of the System. —- The policies underlying county-wide election of 

judges and judicial administration are not tenuous, and include: the historic use of 

counties as the fundamental unit of provision of judicial services; judicial efficiency 

  

35/ Although Appellees’ witness Dr. Brischetto offered such testimony with respect to 
other counties, his testimony specifically did not encompass Dallas County, and Appellees 
introduced no other testimony on this point with respect to Dallas County. 

wid 

 



    
through central administration, specialization, flexibility in docket management and 

court creation; and providing electoral accountability while avoiding judicial 

parochialism. The District Court agreed that these policies were not tenuous. 

(November Order at 77) 

6. Racial Appeals. -- Appellees did not show that judicial elections were 

characterized by overt or subtle racial appeals. In fact, the only incident the trial court 

found to be a racial appeal in a judicial race was actually a reference to the candidate's 

religion in a Republican primary. (November Order at 73) That reference drew a strong 

response from the Republican Party, and apparently was of no importance to the voters 

—- the black candidate won the primary. (Tr. 4:77; 4:218) Even if the religious reference 

were considered a racial appeal, that isolated incident is not any indication that racial 

appeals are typical or even "not unusual" in judicial campaigns. 

7. History of Discrimination. -- Finally, although Dallas County and Texas once had 

official discrimination against the voting rights of black voters, those days are thankfully 

long in the past. Appellees did not show and the District Court did not explicitly find 

that this unfortunate history has had any present day lingering effect on the ability of 

blacks to participate in the political process in Dallas County, and there are certainly no 

present official impediments to black voting. 

A review of all of the Zimmer factors shows that the District Court's ultimate 

finding was clearly erroneous.38/ The essence of Appellees’ case did not turn on the 

Zimmer factors; rather, it turned on their arcane statistical evidence showing that black 

voters vote for Democratic candidates and that the percentage of black judges is smaller 

  

36/ The existence of racially polarized voting, which is also a Zimmer factor, is 
discussed at length above. The remaining Zimmer factor, responsiveness, was expressly 
not raised by Appellees, and the District Court did not find it significant. (November 
Order at 75) 

- 43 

 



   

than the percentage of black voters. As shown above, however, those facts do not 

support a finding of a violation of the Voting Rights Act. Appellees’ statistical smoke 

cannot obscure the obvious facts that the political processes in Dallas County are 

absolutely open to black judicial candidates running, and that they can and do win, as 

Republicans. 

CONCLUSION   

The proof at trial showed that voting in judicial elections in Dallas County does not 

depend upon the race of the candidate and thus is not racially polarized under Monroe v. 

City of Woodville. The District Court's November Order thus was wrong. Any other 

reading of the Voting Rights Act would lead to unjust results. The Voting Rights Act was 

intended to ensure that minority groups had an opportunity to participate in the political 

process and elect the candidates of their choice. Here the Dallas County 

Plaintiff-Intervenors all had the open opportunity to participate by running as 

Republicans and winning or running as Democrats and losing. (They chose the latter.) 

The Voting Rights Act was not intended to protect the right of candidates to win in the 

political party of their choice. 

The District Court's conclusion that the Voting Rights Act protects political party 

preferences is wrong and an affront to the American political experiment. As any 

student of politics knows, things change. At one time the party of choice of black voters 

was "the Party of Abe Lincoln." Now it is not. In 1976, the Dallas County courthouse 

was a Democratic bastion. Ten years later, the Democrats were an endangered species 

on the brink of extinction. No one knows what party will have the upper hand ten years 

hence or which party will have black support, Hispanic support, Asian support, or female 

support. Nor should it matter. The judicial system has been a solid, coherent structure, 

whose business has been dispensing evenhanded justice, not favors or benefits to 

small-district constituents. Since 1836 and the Texas Revolution, justice in Texas has 

“4h 

 



   

been dispensed at the county level, and the system works well, partisan political changes 

or not. The District Court would dismantle this system based on a shift in partisan 

voting. Congress could not have intended that result, and this Court should not read the 

Voting Rights Act to require it. 

County-wide judicial elections in Dallas County provide a level playing field for all 

who care to compete, regardless of race, though there is no guarantee that one will win. 

Appellees’ evidence showed nothing more. The Voting Rights Act requires nothing 

more. If the Act is construed otherwise, it is unconstitutional for the reasons stated. 

For all the reasons discussed above, Judge Entz requests that this Court reverse the 

plainly erroneous findings and decision of the District Court and render judgment in Judge 

Entz's favor. 

Respectfully submitted, 

    obert H. Mow, Jr. 

De holly 
David C. Godlbey 
Bobby M. Rubarts 
Esther R. Rosenblum 

  

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

ATTORNEYS FOR DALLAS 
COUNTY DISTRICT JUDGE 
F. HAROLD ENTZ 

- 45 - 

 



Of Counsel: 

Sidney Powell 
STRASBURGER & PRICE 
901 Main Street 
Suite 4300 
Dallas, Texas 75202 
(214) 651-4692 

CERTIFICATE OF SERVICE 
  

I certify that a true and correct copy of the foregoing instrument was served by 

certified mail, return receipt requested (except where indicated) on William L. Garrett, 

Rolando Rios, Susan Finkelstein (FEDERAL EXPRESS), Sherrilyn A. Ifill, Gabrielle K. 

McDonald (FEDERAL EXPRESS), Edward B. Cloutman, III (FEDERAL EXPRESS), E. Brice 

Cunningham, Renea Hicks (FEDERAL EXPRESS), Ken Oden, David R. Richards, ]. 

Eugene Clements (FEDERAL EXPRESS), Darrell Smith, Michael J. Wood, Joel H. Pullen, 

and Seagal V. Wheatley, John L. Hill, Jr. (FEDERAL EXPRESS), Michael Ramsey in 

accordance with the Federal Rules of Appellate Procedure this 13th day of February, 

aD: - 

1990. 

    
Attorney {or as County 
District Judg® F'. Harold Entz