Brief of Amicus Curiae Berlaind Brashear, et al.

    LAW OFFICES 

(214) 330-1100 WALTER L. IRVIN TELECOPY 
(214) 299-7042 

  

ONE WEST HILLS (214) 331-2595 
5787 SOUTH BAMPTON ROAD 

SUITE 210 

DALLAS, TEXAS 75232-2255 

  VIA FEDERAL EXPRESS 
bd 

Gilbert 74 Ganucheau, Clerk 

5 TA T70%30 

  

Re: No. 90-8014 

LULAC COUNCIL #4434, et al, 
Plaintiffs-Appellees, 

VS. 

Jim Mattox, et al, 
Defendants-Appellants. 

Dear Clerk: 

Enclosed please find an original and six (6) copies of 
the Brief of Amicus Curiae, Berlaind Brashear, et al, in 
support of Plaintiffs-Appellees in the above captioned 
cause, to be filed among the papers of this cause. 

Very truly yours, 
nl he § : 

| s \ nA no “AN : B\ 

N AN AAS 

Walter L. Irvin 

WLI/bb 
Enclosures: 

ces All Councel of Record, 
with enclosures 

 



    
NO. 90-8014 
  

IN THE 

UNITED STATES COURT OF APPEALS 
FOR THE PFPIFTH CIRCUIT 

  

NO. 90-8014 

  

LULAC COUNCIL #4434, et al, 
Plaintiffs-Appellees, 

Ve 

JIM MATTOX, et al, 
Defendants-Appellants. 

  

Appeal From The United States District Court 
Western District of Texas 
Midland-Odessa Division 

  

BRIEF OF AMICUS CURIAE 
BERLAIND BRASHEAR, ET AL 

  

WALTER L. IRVIN 
TEXAS STATE BAR NO. 10423000 
5787 SOUTH HAMPTON ROAD 
SUITE 210, LOCKBOX 122 
DALLAS, TEXAS 75232-2255 
214/330-1100 

ATTORNEY AMICUS CURIAE 

 



    

NO. 90-8014 
  

IN THE 

UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

  

. NO. 90-8014 

  

LULAC COUNCIL #4434, et al, 
Plaintiffs-Appellees, 

V. 

JIM MATTOX, et al, 
Defendants-Appellants. 

  

Appeal From The United States District Court 
Western District of Texas 
Midland-Odessa Division 

  

BRIEF OF AMICUS CURIAE 
BERLAIND BRASHEAR, ET AL 

IN SUPPORT OF PLAINTIFFS-APPELLEES 

  

WALTER L. IRVIN 
TEXAS STATE BAR NO. 10423000 
5787 SOUTH HAMPTON ROAD 
SUITE 210, LOCKBOX 122 
DALLAS, TEXAS 75232-2255 
214/330-1100 

ATTORNEY AMICUS CURIAE 
BERLAIND BRASHEAR, ET AL 

 



  

   
CERTIFICATE OF INTERESTED 

PARTIES 

The undersigned counsel for Amicus Curiae Berlaind 

Brashear, et al, certifies the following persons have an 

interest in the outcome of this appeal. The specific 

identity of these persons are disclosed pursuant to Local 

Rule '28.2.1.: 

1. Berlaind Brashear, Judge, County Criminal Court 
No. 6, Dallas County, Texas; 

E. Brice Cunningham, Attorney at Law, Dallas, 
Texas; 

3. Lorenzo Brown, Attorney at Law, Dallas, Texas; 

4. R.D. Rucker, Attorney at Law, Dallas, Texas; 

5. Alice Bonner, Attorney at Law, Houston, Texas; 

6. Larry Evans, Attorney at Law, Houston, Texas; 

Jessie Gaines, Attorney at Law, Ft. Worth, Texas; 

8. Pam Dunlap, Attorney at Law, Ft. Worth, Texas; 

9. J.R. Molina, Attorney at Law, Ft. Worth, Texas; 

10. Leon Haley, Attorney at Law, Ft. Worth, Texas; 

11. L. Clifford Davis, Attorney at law, Pt. Worth, 
Texas; and 

12. Marilyn Hicks, Judge, 231st District Court, 
Tarrant County, Texas, Ft. Worth, Texas. 

  

WALTER LIL. IRVIN 

i 7. 

 



    

TABLE OF CONTENTS 
  

CERTIFICATE OF INTERESTED PARTIES. ..cccccceecccoccsccs i 

TABLE OF CONTENTS: cc ccccecccscsssssccsssssssscscsccccsscse ii 

LIST OF AUTHORITIES ::ccccceccesee Sesssesesssenssenssne . iii 

STATEMENT OF THE ISSUES. .:ccccccceccesscscssscccssccecos 3 

STATEMENT OF THE CASE. .ccccccecccccccsccsccscscssccsscccos 1 

SUMMARY OF ARGUMENT... cccccceeccccccscsscccssscccssccssscs 1-2 

ARGUMENT . cc cc events ssnssssncsnsvesssssssssnsssssssvncees 3 

I. WHETHER SECTION 2 OF THE VOTING RIGHTS ACT 
APPLY TO ELECTIONS OF TEXAS DISTRICT COURT 
JUDGES ev e's sss ssnsnsensseassssssnssnensneves 3-6 

11. WHETHER THE EVIDENCE SUPPORTED THE DISTRICT 

COURT'S FINDING THAT ALL THRESHOLD FACTORS 

OF GINGLES WERE MET. .ccccccccccccccccccscs 7-10 

CONCLUSION: ccc eeeceesee I EE III 10 

CERTIFICATE OF SERVICE. ce cccceescccscsssccsccccscccscs 10-11 

ii 

 



  

   
LIST OF AUTHORITIES 
  

CASES PAGE(S) 

CHISOM v. EDWARDS, 
839 F. 24 1056 (5th Cir. 1988)ceececsssrevs rg 5 

DILLIARD v. BALDWIN COUNTY BD OF EDUC., 
686 F Supp 1459 (M.D, Ala, 1988) esc vvve eosin 7 

ROEMER v. CHISOM, 
109 S. Ct. 390 (1988) ecevescsvsssenessssmscnse 5 

THORNBURG Vv. GINGLES, 
106 8. CL. 2752 (1986 Yc cu iinsoivbsnnns'suaieyss 7 

WHITCOMB v. CHAVIS, 
403 UIC, 300 (1971 0 cnn « Basle ns Tudinians sal ome s 8 

WHITE v. REGESTER, 
412 Ue eis 75D. nnis ssn vesnish sssnsmmnssnessionss es 7 

STATUES AND REGULATIONS 
  

VOTING RIGHTS ACT, 42 U.S.C. 1973. cccccecccsccecce 

OTHER REFERENCES 
  

A.DEFNER, RACIAL DISCRIMINATION AND THE RIGHT TO VOTE 6 

26 VANDERBILT LAW REVIEW, 573 (1973)cccccccccscs 6 

ii 

 



    

STATEMENT OF THE ISSUES 
  

I. Whether Section 2 of the Voting Rights Act apply to 

elections of Texas District Court Judges. 

II. Whether the evidence supported the District Court's 

finding that all threshold facts of Gingles were met. 

STATEMENT OF THE CASE 

The Amicus adopts the Statement of the Case as set forth 

by Defendants-Appellants as it relates to the course of the 

proceedings and disposition below as stated in their brief 

at pages 2-5. Further, your Amicus adopts the Defendants- 

Appellants' description of how Texas District Judges are 

elected as set forth on pages 5-6 of State Defendant's 

Brief. 

The Plaintiffs-Appellees' Statement of the case at 

paragraph 3 on page 3 through page 4, correctly states the 

case from your Amicus' perspective. 

SUMMARY OF ARGUMENT 
  

The Amiucs Curaie, Berlaind Brashear, et al, appear in 

support of Plaintiffs-Appellees and confine their arguments 

to the larger issues before this Court. The larger issues 

are framed herein. | 

The situation is most acute for those who are both poor 

and culturally different, Blacks and Mexican-Americans. 

This lawsuit is simply one concerning the Voting Rights Act 

-] 

 



    

of 1965, as Amended and the application of that Act to the 

election of State District Judges by Blacks and Mexican- 

American citizens in the nine (9) targeted counties. To 

these citizens the law symbolizes white oppression. Those 

who represent the legal system are almost exclusively white 

and reflect the prejudices and ignorance of white society. 

Yet the problem is much deeper and one of participation in 

Judicial functions. The very structure of the system, 

because they were created by whites, invariably operate to 

disadvantage the culturally different, regardless of who is 

in control. 

Congress certainly intended that the administrators of 

Justice (Judges) be included under the provisions of the 

Voting Rights Act. This lawsuit is not about the involve- 

ment of minorities in the Judicial system, but their 

involvement in the political process. The reality is that 

selection of Judges is a political exercise. 

The minorities in the nine (9) targeted counties tend to 

vote as blocs and the majorities tend to vote as blocs. The 

evidence clearly reflected that these blocs tend to vote for 

their preferred candidate. This is the question before the 

Court in the context of the Gingle Threshold. The trial 

Court considered the evidence and properly applied the 

proper legal standards in the respective targeted counties. 

 



    
of 1965, as Amended and the application of that Act to the 

election of State District Judges by Blacks and Mexican- 

American citizens in the nine (9) targeted counties. To 

these citizens the law symbolizes white oppression. Those 

who represent the legal system are almost exclusively white 

and reflect the prejudices and ignorance of white society. 

Yet the problem is much deeper and one of participation in 

Judicial functions. The very structure of the systemn, 

because they were created by whites, invariably operate to 

disadvantage the culturally different, regardless of who is 

in control. 

Congress certainly intended that the administrators of 

Justice (Judges) be included under the provisions of the 

Voting Rights Act. This lawsuit is not about the involve- 

ment of minorities in the Judicial system, but their 

involvement in the political process. The reality is that 

selection of Judges is a political exercise. 

The minorities in the nine (9) targeted counties tend to 

vote as blocs and the majorities tend to vote as blocs. The 

evidence clearly reflected that these blocs tend to vote for 

their preferred candidate. This is the question before the 

Court in the context of the Gingle Threshold. The trial 

Court considered the evidence and properly applied the 

proper legal standards in the respective targeted counties. 

 



    

ARGUMENT 

I. 

WHETHER SECTION 2 OF THE VOTING RIGHTS ACT 
APPLY TO ELECTIONS OF TEXAS DISTRICT COURT JUDGES 

We can not at this late date concede that the system of 

electing Judges in the targeted Texas counties is neutral in 

fact as it relates to minority voters. In fact, it very 

much limits the right of minority people of ever having a 

chance to serve the judiciary the State of Texas. This 

lawsuit is not a request by minorities that the majority 

citizens of the targeted counties approve their choice for 

the judiciary, but that the election system itself guarantee 

that the minority vote be of some worth. 

Before the passage of the Voting Rights Act, Blacks and 

Mexican-Americans had no share of political power in Texas. 

As a result, very few elective offices were held by minori- 

ties prior to the passage of the Act. Those that were 

obtained tended to be minor. Since Blacks in particular 

were effectively removed from the political arena during the 

Post-Reconstruction reaction of the latter part of the 19th 

Century, methods to maintain white political control had 

gradually evolved with new techniques, replacing those which 

the Courts had held unconstitutional. 

The Voting Rights Act was intended to deal with the 

problems involved with the evolution of these new 

techniques. The drafters of the Act were attempting to 

eliminate all practices which prevented minority political 

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participation. Section 2 of the Act was specifically 

directed at practices and methods that would be found to 

prevent minorities entering the electoral process. 

The system of election of District Judges in Texas is a 

part and parcel of the political fabric of the State. 

Judges are elected in the nine (9) targeted counties from or 

through the political primaries. The participation of 

minorities of course is through these primaries. The State 

Defendants-Appellants have contended at all times that while 

elected of Judges is part of the political process, that 

the end result, i.e. "the Administration of Justice" by the 

elected politician Judges takes the matter out of the pure 

political arena. In other words, the elected politician 

Judges, resulting from the political primaries, do 

administer justice in a racially neutral fashion. 

The District Court made specific findings that there 

is no intentional discrimination in the creation and main- 

tenance of the State's requirement that Judges run for 

election on a county wide basis. The issue, however, at 

this point is not whether the Texas election scheme as to 

District Judges in its nature and scope operated to 

intentionally discriminate against minorities, but did the 

scheme violate Title 2 of the Voting Rights Act as it 

relates to minorities. 

This case is not so much about how Judges are elected, 

but concerns itself with impediments to minority voters in 

the election of Judges. 

Section 2 provides in pertinent part: 

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...No voting qualification or prerequisite to 
voting of standard practice, or procedure shall be 
imposed or applied by any State... in a manner 
which results in a denial or abridgment of the 
right of any citizen of the United States to vote 
on account of race or color..." 

The District Court correctly recognized that Texas has a 

long history of discrimination. This historical discrimina- 

tion was particularly evidenced in the area of the vote, 

i.e., the Poll Tax, etd. 

Your Amicus submit that it is this very history of dis- 

crimination justice that a thorough examination of voting 

practices is needed to determine the impact on the minority 

vote. Section 2 of the Act does apply to Election of trial 

Judges in Texas. This Court decided this point in 1988, in 

its decision, _Chisom v. Edwards, 839 F. 2d. ' 1086 
  

(5th cir. 1988) cert denied sub nom. Roemer v. Chisom, 109 
  

S. Ct. 390 (1988). 

This is a lawsuit about the dilution of minority voting 

rights under the Voting Rights Acts, and not a lawsuit about 

whether minorities can complain of the selection of District 

Judges as opposed to Appellate Judges, as the State 

Defendants-Appellants contend. (See Appellants' Brief at 

18-20). 

As this Court found in Edwards, supra, at 1060: 

"Clearly, Judges are candidates for public or 
party office" elected in a primary, special or 
general election; therefore, Section 2, but its 
express terms, extends to State judicial election. 

The fact that these elections concern itself with the 

election of Judges and the ultimate "administration of 

justice" does not miraculously erase the atmosphere of 

-—h- 

 



    

physical and economic intimidation that made minorities 

aware that politics was an activity that should be left to 

the whites. The facts are undisputed that the judiciary in 

Texas is a political activity that is left solely to whites. 

See A. Defner, "Racial Discrimination and the Right to 

Vote", 26 Vanderbilt Law Review, 523 (1973). 

The areas covered by Section 2 are those which have some 

devices for restricting the strength or worth of voters. 

Certainly Congress realized that all the obstacles to 

political participation by minorities were not erased over- 

night with the enactment of the Voting Rights Act as 

Amended, and Congress was concerned with existing election 

practices as being fair when they were compromised by 

discriminatory practices. Voting means choosing among 

various candidates for an office, so statues or rules 

relating to running for office directly affect the right to 

vote, are therefore covered by Section 2. 

Finally, Judges are elected office holders that are 

responsive to the voters. For the Appellants to assert that 

they should be treated differently for purposes of the 

application of Section 2 seems to discount this fact. 

Minority voters are entitled to perceive their votes as 

having worth, and elected Judges should be responsive to all 

voters, including minority voters. 

The trial Court correctly found that Section 2 of the 

Voting Rights Act apply to election of Texas District 

Judges. 

 



    

II. 

WHETHER THE EVIDENCE SUPPORTED THE DISTRICT COURT'S 
FINDING THAT ALL THRESHOLD FACTORS OF GINGLES WERE MET 

In Thornburg Vv. Gingles, 106 S. Ct. 2752 (1986), the 
  

Supreme Court required the showing of the availability of 

geographical compact districts; political cohesiveness among 

minority voters and that whites voted as a bloc. 

The first factor is that of geographical compactness. 

The Plaintiffs-Appellees present statistical evidence on a 

county by county basis that minortiy voting groups would 

constitute a majority of eligible voters in a defined 

geographical area in at least one (1) district in all the 

targeted counties. The Defendants-Appellants contended that 

this did not meet Gingles test because it relied on the 

combination of minority groups. 

The Plaintiffs-Appellees presented evidence that the 

minority population in the targeted counties was such as to 

permit the establishment of compact districts. The trial 

Court properly found that the minority population patterns 

permitted the establishment of definable compact single- 

member districts. On review, this Court is bound by the 

Gingle's inference that "compactness" is a relative term as 

it relates to minority access to the political process. In 

Dilliard vs. Baldwin Bd of Educ., 686 F Supp 1459 (M.D. Ala. 
  

1988) it was stated that compactness must be determined on 

the criteria if it facilitates the access of minorities in 

the political process. Other than general references as 

that in Dilliard, there are no guidelines as to the 

-] - 

 



    

establishment of compact districts. 

The Plaintiffs-Appellees' evidence on the political 

cohesiveness was based on analysis of judicial races that 

had minority candidates. The Gingles standard requires a 

correlation between the race of the voters and the selection 

of certain candidates. The evidence clearly indicated that 

minority voters selected candidates that were not the 

selection of the white voters. The trial Court concluded 

that cohesion was shown by the evidence. 

Defendants-Appellants contend that party preference is 

the dominant factor in how people vote in partisan election. 

In other words, that the Plaintiffs-Appellees' evidence 

shows only that minority voters are voting in the wrong 

party primary or for the wrong party candidate. The trial 

Court rejected this position, relying on Gingles that a 

showing of why voters made the choice 1is irrelevant. 

Defendants-Appellants argue that Congress did not intend for 

Section 2 cases to require a showing of political cohesive- 

ness, relying on legislative historical reference to 

Whitcomb v. Chavis, 403 U.S. 124 (1971) and White v. 
  

  

Regester, 412 U.S. 755 (1973). In other words, the Section 
  

2 standard should be "why the voter made the choice." The 

trial Court in rejecting this argument, stated that the 

Supreme Court in Gingles made clear that it is the 

difference between choices made by blacks and whites alone 

and not the reason why they voted differently. 

The Defendants-Appellants assert that political party 

preference plays the’ critical role in Section 2, dilution 

-8=- 

 



    

analysis more so than racial polarization. This position 

totally ignores the standard of proof required in Section 2 

cases and that this standard is "discriminatory result". In 

white vs. Regester, 412 U.S. 755 (1973), the Supreme Court 
  

applied the "result test" that ultimately was adopted by 

Congress when it adopted the 1982 Amendment to 

Section 2. 

As to the third factor, Defendants-Appellants contend 

that if the fact of partisan election is considered as is 

required by Whitcomb, supra, then there can be no showing 

of bloc voting. However, this position was rejected. 

Plaintiffs-Appellees' evidence was an analysis of contested 

elections wherein minority candidates ran. The evidence 

showed that minority voters' choices lost in all the races. 

The trial Court correctly found that for showing racial 

polarized voting, it was competent to use only elections 

wherein minorities were candidates. The Court has to view 

the third factor in conjunction with the "totality of the 

circumstances". Defendants-Appellants contend that the 

trial Judge's consideration ignored relevant factors 

concerning white voting blocs. The Defendants-Appellants 

assert that the trial Court was required to consider the 

results of minority candidates running successfully in 

unoppossed races; the lack of success of minorities in these 

races has a connection with the pool of eligible minority 

attorneys; and the differences in qualification of the 

candidates. Gingles reuite that the Court look at the 

totality of the circumstances, and when the historical fact 

—C) 

 



  

   
of discrimination in Texas is viewed in the content of 

"bloc" voting, it is apparent that white voters voted as a 

"bloc", resulting in the defeat of candidates preferred by 

minority voters. The trial Court did consider these 

factors, but rejected the import that Defendants-Appellants 

attached. 

CONCIUSION 
  

The Amicus Curiae Berlaind Brashear, et al, request that 

this Court affirm the Trial Court's decision finding that 

the scheme of election of District Judges in the nine (9) 

targeted counties violate Section of the Voting Rights Act. 

Respectfully submitted, 

WALTER L. IRVIN 
TEXAS STATE BAR NO. 10423000 
5787 SOUTH HAMPTON ROAD 
SUITE 210, LOCKBOX 122 
DALLAS, TEXAS 75232-2255 
214/330-1100 

  

ATTORNEY AMICUS CURIAE 
BERLAIND BRASHEAR, ET AL 

CERTIFICATE OF SERVICE 
  

I certify that on this 5th day of March, 1990, I mailed 
the foregoing Brief of Amicus Curiae Berlain Brashear, et 
al, in Support of Plaintiffs-Appellees, by first class 
United States mail, postage prepaid to each of the 
following: Jim Mattox, Attorney General of Texas, Mary F. 
Keller, First Assistant . Attorney General, Renea Hicks, 

Special Assistant Attorney General, Javier Guajardo, 
Assistant Attorney General, P.O. Box 12548, Capitol Station, 
Austin Texas 78711-2548; William L. Garrett, Garrett, 

Thompson & Chang, 8300 Douglas, Suite 800, Dallas, Texas 

75225; Rolando Rios, Southwest Voter Registration & 

Education Project, 201 -N. St. Mary's, Suite 521, San 

Antonio, Texas 78205; Sherrilyn A. Ifill, NAACP Legal 

Defense and Educational Fund, Inc., 99 Hudson Strret, 16th 
Floor, New York, New York 10013; Gabrielle K. McDonald, 301 
Congress Avenue, Suite 2050, Austin, Texas 78701; Edward B. 

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Cloutman, III, Mullinax, Wells, Baab & Cloutman, P.C., 3301 
Elm Street, Dallas, Texas 75226-1637; J. Eugene Clements, 
Porter & Clements, 700 Louisiana, Suite 3500, Houston, Texas 
77002-2730; Robert H. Mow, Jr., Hughes & Luce, 2800 Momemtum 
Place, 1717 Main Street, Dallas, Texas 75201; John L. Hill, 
Jr., Liddell, Sapp, Zivley, Hill & LaBoon, 3300 Texas 
Commerce Tower, Houston, Texas 77002; R. James George, Jr., 
Graves Dougherty, Hearon & Moody, P.O. Box 98, Austin, Texas 
78767; and Seagal V. Wheatley, Oppenheimer, Rosenburg, 
Kelleher & Wheatley, Inc., 711 Navarro, Sixth Floor, San 
Antonio, Texas 78205. 

Want Sob 
WALTER L. IRVIN 
  

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