League of United Latin American Citizens (LULAC), Council No. 4434 v. Brief on Remand
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September 6, 1991

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Brief Collection, LDF Court Filings. League of United Latin American Citizens (LULAC), Council No. 4434 v. Brief on Remand, 1991. d7c37ce0-ba9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/deaa7753-f497-4ad7-bd7b-f0139553ffd6/league-of-united-latin-american-citizens-lulac-council-no-4434-v-brief-on-remand. Accessed May 17, 2025.
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT NO. 90-8014 and NO. 90-9003 LEAGUE OF UNITED LATIN AMERICAN CITIZENS, COUNCIL NO. 4434, et al., Plaintiffs-Respondents, versus WILLIAM P. CLEMENTS, GOVERNOR OF THE STATE OF TEXAS, et al., Defendants, JUDGE SHAROLYN WOOD, ETC., Defendant-Appellant. Appeal from the United States District Court for the Western District of Texas Midland Division APPELLANT D EFEND ANT- INTERVENOR HARRIS COUNTY DISTRICT JUDGE SHAROLYN WOOD’S BRIEF ON REMAND PORTER & CLEMENTS J. Eugene Clements Evelyn V. Keyes 3500 NCNB Center 700 Louisiana Street Houston, Texas 77002-2730 (713) 226-0600 ATTORNEYS FOR APPELLANT/INTERVENOR/ DEFEN DANT JUDGE WOOD IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT NO. 90-8014 and NO. 90-9003 LEAGUE OF UNITED LATIN AMERICAN CITIZENS, COUNCIL NO. 4434, et al., Plaintiffs-Respondents, versus WILLIAM P. CLEMENTS, GOVERNOR OF THE STATE OF TEXAS, et al., Defendants, JUDGE SHAROLYN WOOD, ETC., Defendant-Appellant. Appeal from the United States District Court for the Western District of Texas Midland Division APPELLANT DEFEND ANT-INTERVENOR HARRIS COUNTY DISTRICT JUDGE SHAROLYN WOOD’S BRIEF ON REMAND PORTER & CLEMENTS J. Eugene Clements Evelyn V. Keyes 3500 NCNB Center 700 Louisiana Street Houston, Texas 77002-2730 (713) 226-0600 ATTORNEYS FOR APPELLANT/INTERVENOR/ DEFENDANT JUDGE WOOD I IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT NO. 90-8014 and NO. 90-9003 LEAGUE OF UNITED LATIN AMERICAN CITIZENS. COUNCIL NO. 4434, et al., Plaintiffs-Respondents, versus WILLIAM P. CLEMENTS, GOVERNOR OF THE STATE OF TEXAS, et al., Defendants, JUDGE SHAROLYN WOOD, ETC., Defendant-Appellant. Appeal from the United States District Court for the Western District of Texas Midland Division RULE 28.2,1 CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record for Harris County District Judge Sharolyn Wood (hereinafter "Appellant"), 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 the Court may evaluate possible disqualifications or refusal. i I Plaintiffs: LULAC Local Council 4434 LULAC Local Council 4451 LULAC (Statewide) Christina Moreno Aquilla Watson Joan Ervin Matthew W. Plummer, Sr. Jim Conley Volma Overton Willard Pen Conat Gene Collins A1 Price Theodore M. Hogrobrooks Ernest M. Deckard Judge Mary Ellen Hicks Rev. James Thomas Plaintiff-Intervenors: Houston Lawyers’ Association Alice Bonner Weldon Berry Francis Williams Rev. William Lawson DeLoyd T. Parker Bennie McGinty Jesse Oliver Fred Tinsley Joan Winn White Defendants: Dan Morales, Attorney General of Texas John Hannah, Jr., Secretary of State Texas Judicial Districts Board Thomas R. Phillips, Chief Justice, Texas Supreme Court Michael J. McCormick, Presiding Judge, Court of Criminal Appeals Pat McDowell, Presiding Judge, 1st Administrative Judicial Region Thomas J. Stoval, Jr., Presiding Judge, 2nd Administrative Judicial Region B. B. Schraub, Presiding Judge, 3rd Administrative Judicial Region John Comyn, Presiding Judge, 4th Administrative Judicial Region Darrell Hester, Presiding Judge, 5th Administrative Judicial Region William E. Moody, Presiding Judge, 6th Administrative Judicial Region u 1 Weldon Kirk, Presiding Judge, 7th Administrative Judicial Region Roger Jeff Walker, Presiding Judge, 8th Administrative Judicial Region Ray D. Anderson, Presiding Judge, 9th Administrative Judicial Region Joe Spurlock II, President, Texas Judicial Council Leonard E. David Defendant-Intervenors Judge Sharolyn Wood Judge Harold Entz Judge Tom Rickoff Judge Susan D. Reed Judge John J. Specia, Jr. Judge Sid L. Harle Judge Sharon Macrae Judge Michael D. Pedan Respectfully submitted, Evelyn V. Keyes Attorneys for Appellant/Intervenor/ Defendant Harris County District Judge Sharolyn Wood m TABLE OF CONTENTS Page RULE 28.2.1 CERTIFICATE OF INTERESTED PERSONS ............................................ i TABLE OF CONTENTS ............. iv TABLE OF AUTHORITIES ....................................................................................................... vi STATEMENT OF JURISDICTION......................................................................................... 2 STATEMENT OF ISSUES ....................................................................................................... 2 STATEMENT OF THE C A S E ................................................................................................. 2 A. Statement of Proceedings...................................................................... 2 B. Statement of Facts ................................................................................. 4 SUMMARY OF THE ARGUMENT ......................................................................................... 15 ARGUMENT AND AUTHORITIES ......................................................................................... 17 I. SECTION 2 MANDATES THAT VOTE DILUTION BE PROVED UNDER THE ACTUAL, LOCAL "TOTALITY OF THE CIRCUMSTANCES." ............................................................. V 17 II. IN ANALYZING THE TOTALITY OF THE CIRCUMSTANCES APPELLEES FIRST HAD TO PROVE DISPARATE OUTCOMES IN THE ELECTION OF MINORITY AND MAJORITY CANDIDATES, WHICH THEY FAILED TO DO. . . 21 III. APPELLEES ALSO FAILED TO PROVE THAT RACIAL POLITICS DENIED MINORITIES EQUAL ACCESS TO THE POLITICAL PROCESS...........................................................................26 IV. APPELLEES FAILED TO PROVE THAT THE DEGREE OF ANY VIOLATION FOUND JUSTIFIED THE EXERCISE OF REMEDIAL POWER, GIVEN THE INTRUSIVENESS OF THE REMEDY SOUGHT................................................................................29 A. Appellees Proved No Violation ...................................29 B. Appellees’ Proposed Remedy is Extreme and Intrusive......................................................................29 C. Appellees’ Remedy Is Impermissibly Intrusive Under Statutory and Constitutional Guidelines ................................................32 iv V. VI. CONCLUSION FINALLY, THE REMEDY STAGE OF A VOTE DILUTION CASE — IF ANY — MUST PROCEED WITHIN STRICT CONSTRAINTS......................................................................................... 37 THE DISTRICT COURT CLEARLY ERRED IN FINDING ILLEGAL VOTE DILUTION IN STATE DISTRICT JUDGE ELECTIONS............................................................................................... 39 ...................................................................................................................... 40 v I TABLE OF AUTHORITIES Cases Page Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 105 S. Ct. 3142 [1985] ......................................................................................................... 33 Bernal v. Fainter, 467 U.S. 216, 104 S. Ct. 2312 [1984].....................................................33 Boyd v. Thayer, 143 U.S. 135, 12 S. Ct. 375 [1892] .......................................................... 33 Chisom v. Roemer, 853 F.2d 1192 (5th Cir. 1988), 111 S. Ct. 2354 (1 9 9 1 ) .................................................................................................... 21, 38 City o f Mobile v. Bolden, 446 U.S. 55, 100 S. Ct. 1490 (1980).................................... 20, 32 Connor v. Finch, 431 U.S. 407, 97 S. Ct. 1828 (1 977 )........................................................ 38 Duncan v. McCall, 139 U.S. 449, 11 S. Ct. 573 (1891) ..................................................... 33 E.E.O.C. v. Wyoming, 460 U.S. 226, 103 S. Ct. 1054 (1983)............................................. 33 Gregory v. Ashcroft,___U .S .___ , 111 S. Ct. 2395 (1 9 9 1 ).......................................... 33, 34 Houston Lawyers Association v. Attorney General o f Texas, 111 S. Ct. 2376 (1991)........................................................ 4, 21, 22, 31 LULAC Council No. 4434 v. Clements, 914 F.2d 620 (1990) ......................... 4, 30, 31, 35 Martin v. Mabus, 700 F. Supp. 327 (S.D. Miss. 1 9 8 8 ).................................................. 38, 39 McDaniel v. Sanchez, 452 U.S. 130, 101 S. Ct. 2224 (1981) ....................................... 37, 38 Oregon v. Mitchell, 400 U.S. 112, 91 S. Ct. 266 (1 9 7 0 ) ..................................................... 33 Pennhurst St. Sch. & Hosp. v. Halderman, 451 U.S. 1, 101 S. Ct. 1531 (1 9 8 1 ) .................................................................................................... 34, 35 Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362 (1964).......................................... 22, 35, 37 Rogers v. Lodge, 458 U.S. 613, 102 S. Ct. 3272 (1 9 8 2 ) ..................................................... 32 Texas o f Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089 (1 9 8 1 ) .......................................................................................................... 24 vi I Thornburg v. Gingles, 478 U.S. 30, 106 S. Ct. 2752 (1986).............. 17-19, 22, 23, 27, 35 Upham v. Seamon, 456 U.S. 37, 102 S. Ct. 1518 (1982) (per curiam) ...............................................................................................................38 Ward’s Cove v. Atonio, 490 U.S. 642, 109 S. Ct. 2115 (1989) .......................................... 25 Whitcomb v. Chavis, 403 U.S. 124, 91 S. Ct. 1858 [1973]...................... 17, 20, 22, 28, 38 White v. Regester, 412 U.S. 755, 93 S. Ct. 2332 (1 9 7 2 ) ....................................... 17, 20, 22 White v. Weiser, 412 U.S. 783, 93 S. Ct. 2348 (1973) ........................................................ 38 Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893 (1970)..................................................... 32 Williams v. Superior Court, 263 Cal. Reptr. 503, 781 P.2d 537 (1989)............................................................................................................... 32 Wise v. Lipscomb, 437 U.S. 535, 98 S. Ct. 2493 (1978) ..................................................... 38 Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973)..................................................... 15, 18 United States Constitution U.S. Const, art. IV § 4 ............................................................................................................ 33 U.S. Const. Amend. X ...............................................................................................................33 U.S. Const. Amend. XIV............................................................................................... 32, 33, 34 U.S. Const. Amend. XV....................................................................................................... 32, 34 Federal Statutes 28 U.S.C. § 1291(a)(1)....................................................................................................................2 28 U.S.C. § 1292(b) ...................................................................................................................... 2 42 U.S.C. §1973 ............................................................................................................. 2, 17, 23 vii r Texas Constitution Tex. Const, of 1876 art. 5, § 7 ................................................................................................. 5 Tex. Const, of 1876 art. 5, § 7 a .........................................................................................5, 6 Texas Statutes Tex. Gov’t Code § 24.945 .......................................................................................................5 Tex. Gov’t Code §§ 24.950, 24.951 ......................................................................................... 5 Miscellaneous S. Rep. 97-417 reprinted, in U.S. Cong. Code & Admin. News 192-211 ...................................................................................... 20, 21, 35 viii IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT NO. 90-8014 and NO. 90-9003 LEAGUE OF UNITED LATIN AMERICAN CITIZENS, COUNCIL NO. 4434, et al., Plaintiffs-Respondents, versus WILLIAM P. CLEMENTS, GOVERNOR OF THE STATE OF TEXAS, et al., Defendants-Appellants JUDGE SHAROLYN WOOD, Defendant-Intervenor-Appellant. Appeal from the United States District Court for the Western District of Texas Midland Division APPELLANT DEFENDANT-INTERVENOR HARRIS COUNTY DISTRICT JUDGE SHAROLYN WOOD’S BRIEF ON REMAND TO THE HONORABLE COURT OF APPEALS: Harris County District Judge Sharolyn Wood ("Judge Wood") files this Brief to address the following issues: (1) the formulation of a method of proving vote dilution applicable to judicial elections; (2) the weighing of a state’s interest in structuring its own judicial election system versus minority interests in an election scheme which guarantees more successful minority candidacies; and (3) the principles constraining the imposition of judicially crafted remedies for vote dilution. Based on the law outlined herein, Judge Wood believes that the district court’s holding was clearly erroneous and therefore requests that this Court reverse the holding of the district court and render judgment in favor of Defendants/Appellants. STATEMENT OF JURISDICTION This case is on remand from the United States Supreme Court. Jurisdiction is provided by 28 U.S.C. § 1292(b) and by 28 U.S.C. § 1291(a)(1). STATEMENT OF ISSUES 1. How is illegal vote dilution proved in judicial elections? 2. What is the weight of Texas’ interest in structuring its own judicial electoral system compared to minority interests in guaranteeing more successful minority candidacies? 3. What constraints must a federal court respect in considering the viability, of a remedy for vote dilution? 4. Whether the district court in this case erred in finding illegal vote dilution in state district judge elections in Texas’ ten largest counties, in enjoining elections under that system, and in ordering into effect its own Interim Plan for Texas state district judge elections? STATEMENT OF THE CASE A. Statement of Proceedings Plaintiffs/Appellees brought this suit seeking (1) a declaration that the State of Texas’ system for electing state district judges dilutes their votes in violation of the Fourteenth and Fifteenth Amendments to the United States Constitution and § 2 of the Voting Rights Act, 42 U.S.C. § 1973,1 (2) a permanent injunction against the further election of state district judges 1 A copy of § 2 is attached hereto at Appendix ("App.") la. 2 under that system, and (3) the imposition of a system for electing state district judges which would provide Blacks and Hispanics a greater opportunity to elect Black and Hispanic state district judges. The case was tried before Judge Lucius Bunton in Midland, Texas, beginning Septem ber 18, 1989. On November 8, 1989, the district court issued its Memorandum Opinion and Order ("Op."). The Court rejected the Plaintiffs’ constitutional claims but held that Texas’ system of electing state district judges diluted the votes of minorities in all target counties2 in violation of § 2. Op. at 91, 94. The Court reserved the question of a permanent injunction until the Texas legislature had had a chance to devise a new judicial election plan. Id. Six weeks later, on January 2, 1990, without an evidentiary hearing, the district court issued an Order (the "Order") enjoining the calling, holding, supervising and certifying of elections for state district judges under Texas’ judicial election system in the target counties and imposed its own Interim Plan for electing judges. That eight-page Plan was ordered into immediate effect on the last day on which filing was permitted for judicial races under Texas law. It totally rewrote Texas’ comprehensive judicial election system, promulgated pursuant to art. 5 §§ 7 and 7a of the Texas Constitution of 1876 and pursuant to numerous provisions of the Texas Government Code and Texas Election Code. It adopted virtually in toto a remedial plan submitted by the Plaintiffs (the League of United Latin American Citizens ["LULAC"] and certain LULAC chapters and named Hispanic individuals), the Plaintiff/Intervenors (the Houston Lawyers Association [the "HLA"] and other named Black individuals), and Defendant Texas Attorney General Mattox over the objections of Defendant/Intervenors Judge Wood and Dallas County District Judge Harold Entz ("Judge Entz"). In large counties like Harris County, Judge Bunton’s Interim Plan assigned 2 The suit originally targeted 47 Texas counties, later reduced to 10 counties. 3 district judges to legislative districts — approximately two to each Democratic district and one to each Republican district. It departed from the Plaintiffs/Mattox Plan in only two significant respects: it made elections non-partisan and moved them to a special election day — "remedies" sought by no one. The Fifth Circuit Court of Appeals granted interlocutory review and enjoined imposition of the Interim Plan. Following expedited oral hearing on April 30, 1990, a three-judge panel of the Fifth Circuit held two to one that state district judges were single-member office-holders and were, therefore, not subject to vote dilution claims.3 On en banc review, a majority of seven judges, authored by Judge Gee, held that judges were not "representatives" of their constituents and, therefore, the vote dilution provision in § 2(b) of the Voting Rights Act did not apply to judicial elections. LULAC Council No. 4434 v. Clements, 914 F.2d 620 (1990). A five-member concurring minority, authored by Judge Higginbotham, would have held, that although judges are "representatives," the single-member office-holder exception to vote dilution claims applied to the election of state district judges. Judge Johnson dissented. After the HLA and LULAC filed timely Petitions for Writ of Certiorari, the Supreme Court heard oral argument on April 22, 1991, and issued its opinion sub nom Houston Lawyers Association v. Attorney General o f Texas, on June 20, 1991. It held that "the Act does not categorically exclude judicial elections from its coverage" and remanded the case to this court to consider "whether a vote dilution violation may be found or remedied" under the circumstances of this case. I l l S. Ct. 2376, 2381 (1991). B. Statement of Facts 3 The Plaintiffs did not appeal the district court’s denial of their constitutional claims. 4 Texas’ constitutional judicial election system provides for the election of judges from overlapping single-judge, county-wide districts. Tex. Const, of 1876 art. 5, § 7.4 District judges are elected to four-year terms in partisan races by a plurality of the voters at general elections. They are required to be citizens of the State of Texas, to have been practicing lawyers for four years, to have been residents of their districts for two years, and to agree to reside in their districts during their terms in office. Id. In 1985, as part of a comprehensive judicial administrative plan, article 5 was amended by the addition of § 7a, which created a judicial reapportionment board and also prohibited the creation of judicial districts smaller than a county without the approval of a majority of the county’s voters.5 Pursuant to article 5, the Texas Legislature has enacted a comprehensive body of laws governing the formation and function of judicial districts. These laws — including reapportionment laws — are expressly designed to equalize judicial burdens in the interest of promptness and efficiency. Tex . Gov’t Code § 24.945. To promote fairness and efficiency, all district courts in a county with more than one judicial district are accorded concurrent jurisdiction and are permitted to equalize their dockets. Tex. Gov’t Code §§ 24.950, 24.951. In addition, specialized courts have been created in cer tain populous counties by legislative action or informal arrangements. Transcript ("TR. *) 3-254. Under this system Harris County currently has 59 state district judges who serve the specialized functions of civil district judge (25), criminal district judge (22), family law judge (9) and juvenile judge (3). At trial, a number of witnesses testified regarding the State’s interests in devising and maintaining its present district judge election system and regarding the effect a subdistricting 4 A copy of § 7 is included in the Appendix at 2a. 5 A copy of § 7a is included in that Appendix at 3a-4a. 5 remedy for vote dilution would have on the State. Texas Supreme Court Chief Justice Thomas R. Phillips testified that the Texas Constitution was written to ensure that each judge be responsible to the voters of the entire area over which he exercises primary jurisdiction. He testified that this is appropriate because of the power and authority judges exercise over people’s lives: if judges are elected they should be accountable to those people who can be brought before their court. TR. 5-107, 5-78, 5-120. He further testified that the purpose of redistricting is to equalize the workload among Texas district courts. TR. 5-106. He testified that there would be significant venue controversies and jury selection problems with the creation of districts smaller than a county. TR. 5-109. Justice Phillips noted that, in 1889, Dallas and Bexar Counties experimented with dividing the county into two electoral districts, each half electing a district judge with jurisdiction over the entire county. TR. 5-82-83. The enabling legislation was soon repealed in both counties. TR. 5-83. With these two exceptions, Texas’ statutes have always created judicial districts of at least one county in size. TR. 5-105. Harris County District Judge Mark Davidson testified that the intent of the legislature in adopting § 7a in 1985 was to create an orderly system for docket equalization. TR. 3-261-62. Blacks and whites voted equally (and overwhelmingly) for the amendment; and it was endorsed by minority legislators. TR. 3-263. Judge Davidson testified that the creation of single-member districts within the county would substantially increase the political pressures on judges, which are minimized by the county-wide district system. TR. 3-264-65. It would also create forum- shopping, "mind-boggling" confusion and gross disparity between the docket loads of various courts. TR. 3-265. It would destroy the specialized court system. TR. 3-265-66. It would create severe administrative problems and jury selection problems. TR. 3-267-68. 6 Hams County District Clerk Ray Hardy testified that county-wide jury selection with random assignments is important to ensure representation of the entire county on jury panels. TR. 4-255-56. The creation of sub-districts could create venue problems, tremendous expense, jury selection problems, forum shopping, divisiveness, administrative difficulties and docket inequality. TR. 4-257-61. It would encourage racially discriminatory jury pools. TR. 4-259- 61. He testified that county-wide districts go back to the formation of the State and that there is no indication they have been perpetuated in order to discriminate against Black and Hispanic voters. TR. 4-262. There was also substantial testimony at trial regarding the statistical analysis of voting in Texas judicial races and the actual local factors at work in those races. Plaintiffs/Appellees the HLA presented evidence, which the Court accepted, that Blacks constitute 18.2% of the voters of Harris County. Op. at 14-15.6 Both sides agreed that 5.1 % (3 out of 59) of the state district judges sitting in Harris County are Black. To prove vote dilution HLA pointed to a perceived lack of Black candidate success in Harris County judicial elections. The HLA concentrated on statistical analyses of Hams County voting patterns by its expert witness, Dr. Richard Engstrom. Dr. Engstrom conducted homogeneous precinct analyses and ecological bivariate regression analyses of 17 contested Harris County white/Black races for district judge since 1980.7 He testified that homogeneous precinct analysis, or "extreme case" analysis, 6 While LULAC brought claims on behalf of Hispanics in Harris County, as well as Blacks, it introduced no evidence in support of those claims. Therefore, this Court should reverse and render judgment for Defendants insofar as Judge Bunton’s decision applies to Hispanics in Harris county. 7 Dr. Engstrom relied for his data base on the 1980 census counts of total black population by precinct and computer printouts of 1982, 1984, 1986, and 1988 precinct voter registration estimates supplied to Dr. Engstrom by Dr. Richard Murray who did not authenticate this data. TR. 3-68-71. Dr. Engstrom testified that the only independent check he ran on this data was 7 analyzes the support given candidates in demographically homogeneous precincts. TR 3-74, 102-103. Bivariate regression analysis correlates the race of voters in a precinct with support for given candidates. Op. at 23 n. 16; TR. 3-67. Although Texas judicial races are partisan, Dr. Engstrom did not factor partisan voting into his analyses, nor did he consider any other candidate factors such as incumbency or endorsements. TR. 3-79; 3-82. Instead he factored only race and the level of support for Black candidates into his analyses. TR. 3-73, 3-84, 3-88-89. His results showed that as the precincts became more Black in composition the vote for the Black candidate increased, with one excep tion. TR. at 3-74-75. Moreover, on his analyses, Blacks consistently gave more than 100% of their votes to the Black candidate (again with the one exception). TR. 3-75. Dr. Engstrom testified on cross-examination that the one exception in the races he analyzed was the Mamie Proctor race, in which Ms. Proctor, a Black Republican, ran against a white Democrat.. TR. 3-107. Ms. Proctor got over 50% of the white vote and virtually none of the Black vote. TR. 3-108. In that race, Dr. Engstrom testified, the preferred candidate of the Black minority was the white Democrat. M.8 to compare the Hispanic percentage with 1988 state figures on Hispanic votes. TR. 3-71. On cross-examination, Dr. Engstrom admitted that he relied on Dr. Murray’s data, without checking it, for population estimates, voter registration estimates, voter estimates, and changes in precinct population shifts and growth over the ten years since the 1980 census. TR. 3-89-101. He also admitted that there would "undoubtedly by 1988 be some slippage in the measurements." TR. 3-98. In addition, Dr. Engstrom testified on cross-examination that he did not control for Asian- American votes (TR. 3-99) or absentee votes in Harris County, which ranged as high as 13.6% of the total vote. TR. at 3-80-81. Judge Wood objected to the reliability of Dr. Engstrom’s testimony both before trial and at trial. 8 Dr. Engstrom also testified on cross-examination that he could have predicted lesser Black support for Ms. Proctor by knowing that she was a Republican. TR. 3-88. 8 Dr. Engstrom admitted that, using his definition of the Black preferred candidate as the candidate who got the most Black votes, and assuming that each of Harris County’s 35 Demo cratic judges received 95 % of the Black vote, the majority of the state district judges elected in Hams County have been the candidate of choice of Black voters, if white on white races are counted. TR. 3-108-109. He testified, however, that he did not analyze white on white races because the only "relevant" races are those in which Blacks vote for members of their own racial group. TR. 3-73. He testified that a showing that Black voters are unable to elect the candidate of their choice when the candidate is a Black is sufficient to show vote dilution. TR. 3-73. The HLA also presented evidence that the Black population of Harris County is suffi ciently large and geographically compact to constitute a majority in 13 hypothetical judicial districts in Harris County. TR. 3-232-233. Their expert witness, Mr. Jerry Wilson, could not explain on cross-examination, however, how 22% of the judicial districts in Harris County could have a Black majority if only 19.7% of the total Harris County population and 18.2% of the voters are Black. He also was unable to testify that the hypothetical districts he drew were compact. TR 3-240. He testified that he had made no effort to address communities of interest or specialized courts. TR. 3-241-242. LULAC presented no testimony or proof as to Harris County. Judge Wood’s expert witness, Judge Mark Davidson, testified that state district judge races in Harris County are more accurately characterized by partisan polarized voting, not racially polarized voting. TR. 3-268. Republicans and Democrats are roughly evenly divided: in most judicial races 42%-45% of the voters vote a straight Republican ticket and 42%-45% vote a straight Democratic ticket. TR. 3-271. Judicial elections are usually determined by a small number of discretionary judicial voters or swing voters. TR. 3-270-272. Straight ticket 9 voters cannot be voting their racial preferences because the percentage of voters voting a straight Republican or Democratic ticket does not change with the race of the candidate. TR. 3-272-273. Only swing voters could be influenced by race; but the actual factors that affect their votes are not racial but factors such as voter tum-out, incumbency and the type of campaign run. TR. 3-271-277.9 The State presented Dr. Delbert Taebel as an expert witness. In contrast to Dr. Engstrom, Dr. Taebel analyzed 41 white/minority judicial races in Harris County since 1980, including primary races, white/Hispanic races, and white/Black races, mainly for state district judge. TR. 5-225. Dr. Taebel ran a multivariate ecological regression analysis, fac toring in party affiliation as well as race. He testified that he factored in party and included more races, including primary races, because the purpose of a functional analysis is to determine how the political process works. TR. 5-161-165. Dr. Taebel testified that no one can evaluate partisan elections using a functional approach without taking parties into account because party affiliation overwhelms all other factors in describing how partisan elections work. TR. 5-233. Dr. Taebel testified that Harris County voting is very competitive between Democrats and Republicans and election results are unpredictable.10 TR. 5-226. There is extensive straight- party voting. TR. 5-183; TR. 5-228. The swing voters, who constitute only 10-20% of the judi cial voters, are a critical factor and vote in a variety of different ways. TR. 5-228-229. However, swing voting in Harris County has nothing to do with race. TR. 5-232-233. 9 Judge Entz’s witness, Dr. Anthony Champagne, similarly testified that in Dallas County recognition of who is actually running for judicial office, including the race of the candidate, is very low. TR. 4-119-121. 10 Except in 1984 when straight ticket Republican judicial voters were sufficiently numerous to elect all contested benches — no matter what the race of the Democratic candidate. 10 Dr. Taebel also testified that there are two ways to determine whether partisanship or race best describes actual voting patterns. TR. 5-185-186. If the party vote remains similar from race to race in a general election, there is a high degree of partisan voting. TR. 5-186. Also, if there is a shift in white support of a minority candidate between the primary election and the general election, the shift indicates dilution by partisan voting. TR. 5-186-187. The first of these tests shows that in Harris County party voting by whites, Blacks, and Hispanics is exacdy or almost exactly the same, regardless of the race of the candidates. TR. 5-227.11 Also, since Black Democrats and white Democrats vote substantially the same in Harris County, 1.. .............. " ^ TR. 5-268, it follows under the second of these tests that any dilution of the vote for a Black Democrat between the primary and the general election is due to dilution by Republican votes, not white votes. Dr. Taebel’s and Judge Davidson’s testimony was corroborated by numerous witnesses for both sides who testified to the importance to electoral success or failure in Harris County of specific factors such as straight party voting (TR. 3-220 and 3-325), the Democratic sweep in 1982 (TR. 3-256) and the Republican sweep in 1984 (TR. 3-294, 4-40), the importance of bar poll results in 1986 and 1988 (TR. 3-319, 3-325, 4-56, 5-129), incumbency (TR. 3-325), and the effectiveness of particular campaign strategies (TR. 3-294). Studies commissioned by the Democratic judges in 1986 (including Plaintiff Matthew Plummer), made by Dr. Richard 11 Dr. Champagne similarly testified that in Dallas County the average vote for Democratic judicial candidates in general roughly corresponds to the percentage of votes for Black Democratic judicial candidates. TR. 4-105-106. He further testified that while it is meaningful to say on the basis of statistical analysis of Dallas County judicial races that the Democratic party is the party of choice of Black voters, it is not meaningful to say that any individual candidate is the candidate of choice of Black voters. TR. 4-128. Voting is based on political party, not race or, for that matter, any other candidate - specific characteristic or activity. TR. 4-179. 11 Murray, authenticated by him in deposition testimony, and introduced into evidence by the defense, also rejected racism as the cause of the 1986 loss by three incumbent Black judges in Hams County (only one of whom was a district judge), citing other factors, such as their being relatively unknown and unable to raise funds, their concentration on seeking only minority support, low Black voting, and their failure to obtain the endorsement of the Gay Political Caucus. TR. 2486-89; Exh. DW 15 at 15-17. Although the HLA presented witnesses who testi fied globally that Black losses in Hams County campaigns are due to racism, none could point to any racist element in his own campaign. See, e.g. , testimony of former Judge Weldon Berry, TR. 4-55. Judge Manuel Leal testified that his Republican party affiliation, and not racial voting, caused his loss in 1982. TR. 4-246. In addition, Harris County District Clerk Ray Hardy testified that racism does not play a part in Harris County district judge races and has not done so in the last 15 years. TR. 4-255. Significantly, although there was testimony regarding each of the races run by specific Black candidates in Harris County, neither Dr. Engstrom nor Dr. Taebel analyzed the 2 Harris County state district judge races in which Blacks ran successfully in 1978. The two Black district judges elected in 1978 — Judges Thomas Routt and John Peavy — have been consistently elected ever since in all races without opposition, except for Judge Routt’s 1982 win over a white opponent. Since neither Dr. Engstrom nor Dr. Taebel counted Black successes in unopposed races, these two invincible Black candidates simply never counted. As Judge Wood’s ("DW") Exh. 1 shows, Blacks have run in 25 contested races in general elections in Hams County for appeals court judge, state district judge, and county court at law judge since 1980 and have been successful in 5 of those races (20%). Blacks have run in 22 races in general elections for state district judge since 1978 and have won 7 of those races 12 — 4 contested and 3 uncontested — for a total success rate of 32% in all races, and 18% in contested races. See Exh. DW-1. Moreover, 11 of the 15 losses were attributable to only four candidates, Weldon Berry, Sheila Jackson Lee, Freddie Jackson, and Matthew Plummer. Exh. DW-1. No Black candidate for district judge has lost in the Democratic primary in Harris County since 1984. Exh. DW-2. These figures show that, even if Blacks had won every race in which they ran, they would still fall far short of proportional representation vis k vis Black voters. The relatively high success rates for Black judicial candidates (when there are (^ndi-^ dates) - suggests that some other explanation for the ratio of Black voters to Black judges must be operative. Dr. Champagne testified that nationwide the percentage of minority judges correlates most closely to the percentage of minority lawyers in a community — not to the percentage of minority voters. TR. 4-131.12 Correspondingly, the defense proved that, as of the date of trial, although Black district judges were 5.1% of the judges on the bench in Harris County, Blacks constituted only 3.8% of the attorneys qualified to run for state district judge. Exh. D-4. However, Dr. Champagne further testified that the number of Black lawyers is increasing and the number of Black judges should therefore also increase. TR. at 4-136. In his Opinion, Judge Bunton held that the votes of minorities in all nine target counties were illegally diluted in violation of § 2. Op. at 89-90. He held that the extent of minority electoral success injudicial races must be measured by the percentage of minority class members in the total voting age population of the challenged district. Op. at 74-75. He also held that two of the essential elements of a vote dilution claim — political cohesiveness and ability of the white 12 Dr. Champagne further testified that studies Black attorneys constitute between .8% and 2.2% of all attorneys in Dallas County. TR. 4-134. 13 majority usually to defeat the minority’s preferred candidate13 — are proved by statistical evi dence of racially polarized voting and that testimony regarding party affiliation and the actual local factors that determine election outcomes, while "credible," is "irrelevant" under controlling law and "legally incompetent." Op. at 31. Party itself is "simply irrelevant" under the control ling law and "the addition of irrelevant variables [to regression or statistical analysis] distorts the equation and yields results that are indisputably incorrect under § 2." Op. at 85, 80. Judge Bunton accepted the data set relied upon by Plaintiffs’ expert, Dr. Engstrom, to analyze Harris County elections14 as reliable and adopted Dr. Engstrom’s testimony, based on Dr. Murray’s data, that white bloc voting exists in Harris County and is sufficiently strong generally to defeat the choice of the Black community. Op. at 27-30. He further held that Dr. Engstrom’s analysis "describes the percentage of the variances in voting behavior explained by race/ethnicity." Op. at 24 (emphasis added). ' • Judge Bunton conducted a cursory analysis of nine "Zimmer" factors considered to be typical of racial discrimination in voting.15 He found that Harris County district judge elections exhibit only three Zimmer factors: (1) historical discrimination, which he considered indisput able in all counties; (2) illegal "enhancement" of the opportunity to discriminate, which he held was established by majority voting and the fact of county-wide elections in a large county; and (3) lack of Black electoral success in judicial elections. Op. at 69-77. Judge Bunton found no evidence of discriminatory slating, racial appeals in campaigns, or lack of responsiveness of Harris County district judges to the needs of minorities; and he concluded that the reasons for 13 See infra at 17-18. 14 See n. 6 supra. 15 See infra at 18-19. 14 county-wide judicial election districts are neither tenuous nor intentionally discriminatory. Id. In substance, Judge Bunton swept aside virtually all fact-intensive searching examination of local considerations and focused solely on bivariate statistical analysis of voting patterns in reaching his results. Finally, Judge Bunton held that "[cjostly reorganization of the State at-large system of general and specialized courts and disruption of County administrative duties such as jury selec tion are not sufficient grounds for maintaining an otherwise flawed system" and that "[Cjongress did not contemplate that such consideration would play a role in determining whether there has been a violation of section 2." Op. at 90. He held that, regardless of the size of their electoral district, judges could exercise general jurisdiction over their geographic area of responsibility, that administrative functions and jury selection could continue on a county-wide basis, and that the creation of specialty courts was "wrong." Op. at 77-78. After allowing only six weeks for Texas to call a special legislative session and restructure its judicial election system, he ordered his own modification of the Plaintiffs/Mattox judicial election plan into effect. SUMMARY OF THE ARGUMENT The district court erred in finding illegal vote dilution in Texas’ judicial election system. The court lowered the standard of proof as necessary to permit the Plaintiffs to win, even though the Defendants showed that the percentage of elected minority judges is greater than the percentage of qualified minority class members in the candidate pool and even though the Plaintiffs made no showing (other than a distorted statistical showing) that minorities are denied full participation in Texas judicial elections. A functional analysis of the totality of the circumstances demonstrates that the primary determinant of Texas judicial elections is partisan voting and that racial politics are not a significant factor; therefore, there is no legally cognizable 15 vote dilution in Texas district judge elections. Moreover, even if the Plaintiffs had shown that minority voters were denied full access to the political process in Texas district judge elections — which they patently did not show — they would still have had to show that minority voters’ interest in guaranteeing greater electoral success to members of their own race outweighs the State of Texas’ constitutionally guaranteed right to structure its judicial selection system. They would also have had to show that Congress intended that § 2 impose such massive burdens on the states as the restructuring of entire electoral systems which, without intent to discriminate, merely result in the dilution of minority votes. The Plaintiffs made no such showing. Therefore, for each of the foregoing reasons, Judge Bunton erred in holding the Texas district judge election system illegal under § 2, enjoining elections under that system, and imposing his own Interim Plan on Texas. This case should be reversed and judgment rendered for Defendants. 16 ARGUMENT AND AUTHORITIES I. SECTION 2 MANDATES THAT VOTE DILUTION BE PROVED UNDER THE ACTUAL, LOCAL "TOTALITY OF THE CIRCUMSTANCES." In 1982, Congress added a new subsection to § 2 of the Voting Rights Act. That subsection reads, A violation . . . is established if, based on the totality of the 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 [protected class] 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). This language, derived almost verbatim from White v. Regester, states: To sustain ["claims that multi-member districts are being used invidiously to cancel out or minimize the voting strength of racial groups"] it is not enough that the racial group allegedly discriminated against has not had legislative seats in proportion to its voting potential. The Plaintiffs’ burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation bv the group in question — that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice. 412 U.S. 755, 765-66, 93 S. Ct. 2332, 2339 (1972) (emphasis added) (citing Whitcomb v. Chavis, 403 U.S. 124, 91 S. Ct. 1858 [1973]). In its only case interpreting § 2 as amended, the Supreme Court reaffirmed the holding in White and Whitcomb (expressly incorporated by Congress into § 2(b)), that, in assessing a § 2 vote dilution claim "the trial court is to consider the ’totality of the circumstances’ and to determine, based upon a searching practical evaluation of the past and present reality. . . . whether the political process is equally open to minority voters." Thornburg v. Gingles, 478 17 U.S. 30, 106 S. Ct. 2752 (1986) (emphasis added). A five-member majority of the badly split Court held that § 2 Plaintiffs must first prove the three "Gingles factors" as a threshold test: (1) 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!;] (2) the minority group must be able to show that it is politically cohesivef; and] (3) the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it — in the absence of special circum stances, such as the minority candidate running unopposed . . . — usually to defeat the minority’s preferred candidate. 478 U.S. at 48-51, 106 S. Ct. at 2766-2767. The Court did not, however, contemplate that the threshold Gingles factors would be sufficient by themselves to establish a violation of § 2. Instead, the trial court was directed to conduct "an intensely local appraisal of the design and impact of the contested electoral mechanisms." 478 U.S. at 79, 106 S. Ct. at 2781, relying on "objective factors" like those enumerated in Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc), and adopted as typical (but not exclusive) factors by the Senate Judiciary Committee Majority Report accompanying the bill which amended § 2 of the Voting Rights Act in 1982 (the "Zimmer factors"). 106 S. Ct. at 2763, 2759 n. 4.16 16 The Zimmer factors include: 1. the extent of any history of official discrimination touching the right of the minority group to register, vote, or otherwise participate in the democratic process; 2. the extent to which voting is racially polarized; 3. the extent to which the state or political subdivision uses voting practices or procedures that may enhance the opportunity to discriminate; 18 It is important to note that while the three Gingles factors were apparently intended as a comprehensive threshold test of vote dilution, the Zimmer factors constitute neither a necessary nor an exclusive list of objective factors at work in local elections: they are merely "typical" factors — or were when the Voting Rights Act was promulgated. The directive is to assess the actual, local factors. In Whitcomb, for example, on which the amendment to § 2 was modeled, the Supreme Court reviewed the local factors that actually influenced partisan legislative elec tions in Marian County, Indiana. It concluded that there was no illegal vote dilution since nothing in the record indicated that Blacks were not allowed to register or vote, to choose the political party they desired to support, to participate in its affairs, or to be represented when legislative candidates were chosen; nothing indicated that Blacks were regularly excluded from the slates of both major parties or that the Democratic party could afford to overlook Black voters in slating its candidates; and it seemed reasonable to infer that if Democrats had- won elections instead of losing them, the Blacks would have had no justifiable complaints about 4. the denial of access of the minority to any candidate slating process; 5. the extent to which members of the minority group bear the effects of discrimi nation in such areas as education, employment and health, which hinder their ability to participate effectively in the political process; 6. the characterization of political campaigns by overt or subtle racial appeals; 7. the extent to which members of the minority group have been elected to public office; 8. a significant lack of responsiveness of elected officials to the particularized needs of the minority group; and 9. the tenuousness of the policy underlying the use of the disputed voting practice or procedure. 478 U.S. at 36-37, 106 S. Ct. at 2759. It should be noted that the "tenuousness" factor is not the same as the state’s interest that must be weighed in every vote dilution inquiry. 19 representation. 403 U.S. at 149-52, 91 S. Ct. at 1872-73. Given these facts, the Court con cluded that the failure of Blacks to have legislative seats in proportion to their percentage of the population emerged "more as a function of losing elections than a built-in bias" against Blacks; and, although Blacks claimed that their voting power had been "cancelled out," the Supreme Court held that "this seems a mere euphemism for political defeat at the polls." 403 U.S. at 153, 91 S. Ct. at 1874. Significantly, the Senate Report accompanying the 1982 amendments to § 2 singled out Whitcomb as a case in which the minority Plaintiffs had not borne their burden of proving that they were denied "equal access to the political process." S. Rep. 97-414 1, 20, reprinted at 1982 U.S. Cong. Code & Admin. News 177, 198. The Report, like Whitcomb itself, indicated that proof of vote dilution requires a great deal more than mere lack of proportional representation — namely: Plaintiffs must either prove [a discriminatory purpose in the adoption or mainte nance of the challenged system of practice] or, alternatively, must show that the challenged system or practice, in the context of all the circumstances in the juris diction in question, results in minorities being denied equal access to the political process. S. Rep. 97-417 at 27, 1982 U.S. Cong. Code & Admin. News at 205 (emphasis added). One other aspect of the "totality of the circumstances" test must be addressed here — the distinction between the "results" test and the "intent" test, which the 1982 amendments to § 2 were designed to eliminate as an essential element of a § 2 claim.17 In amending § 2, Congress 17 In 1980, the Supreme Court held that a finding of discriminatory intent in the creation or maintenance of an electoral process or procedure was not only an essential element of a Fourteenth or Fifteenth Amendment violation but also an essential element of a § 2 violation. City o f Mobile v. Bolden, 446 U.S. 55, 100 S. Ct. 1490 (1980). The 1982 amendments eliminated the intent requirement in § 2 in favor of the results test promulgated in Whitcomb and White. S. Rep. 97-417 at 15-22, 1982 U.S. Cong. Code & Admin. News 192-200. 20 made it clear that "a factual examination of the intent motivating those who designed the elec toral districts at issue" was no longer required. S. Rep. 97-417 at 22, 1982 U.S. Cong. Code & Admin. News at 200. A court could still assess intent, or it could assess "the impact of the challenged structure or practice on the basis of objective factors, rather than making a determi nation about the motivations which lay behind its adoption or maintenance." S. Rep. 97-417 at 27, 1982 U.S. Cong. Code & Admin. News at 205 (emphasis added). This does not mean, however, that the court should not inquire into racial politics. To the contrary, Congress made it clear that the key to proof of a claim under the results test is a showing that "racial politics plav an excessive role in the political process" or that "racial politics . . . dominate the political process. " S. Rep. 97-417 at 34, 1982 U.S. Cong. Code & Admin. News at 211. This inquiry into either discriminatory intent or the dominance of the electoral process by racial politics remains a central inquiry in every vote dilution case. II. IN ANALYZING THE TOTALITY OF THE CIRCUMSTANCES APPELLEES FIRST HAD TO PROVE DISPARATE OUTCOMES IN THE ELECTION OF MINORITY AND MAJORITY CANDIDATES, WHICH THEY FAILED TO DO. The Supreme Court’s decision in this case did not alter the statutorily mandated fact intensive local inquiry required of the trial court in a § 2 case; however, the Supreme Court’s decision in this case and its companion case, Chisom v. Roemer, 111 S. Ct. 2354 (1991), avow edly called into question the Gingles threshold test as a test of general applicability in vote dilution cases. In this case and Chisom, the Supreme Court simultaneously held (1) that vote dilution claims can be brought regarding judicial elections and (2) that the principle of one- person, one-vote does not apply to judicial elections. The Court recognized that because of this vast expansion of the concept of vote dilution, "serious problems lie ahead in applying the ’total ity of the circumstances’ [test] described in § 2(b)." HLA, 111 S. Ct. at 2368. 21 The problem is that the concept of vote dilution is derived from legislative reapportion ment cases which rely integrally on the one-person, one-vote concept to give meaning to the concept of dilution.18 HLA, 111 S. Ct. at 2375 (Scalia, }., dissenting). These cases — begin ning with Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362 (1964), and proceeding through Whit comb, White, and Gingles itself — all conceive of vote dilution as the inability of a racial or linguistic minority (because of its submersion in a white majority district) to elect representatives who will further the interests of the group. All of these cases therefore incorporate the idea that the problem is one of the lack of a voice responsive to community interests (rather than, as here, simply the lack of enough successful Black or Hispanic candidates) and that it can be readily and constitutionally remedied by drawing subdistricts in which the minority constitutes a majority. The remedy thus becomes part of the test for vote dilution and finds expression in Gingles 1 — which requires the minority group to demonstrate that it can form a majority of the electorate in at least one subdistrict. When — as in judicial elections — the election of candidates who will represent the interests of their constituents is not the goal of the system (but rather, independence, account ability, and administrative concerns determine the structure) and when the one-person, one-vote measure of dilution does not apply, it becomes important to determine whether vote dilution can be measured in any way other than by the one-person, one-vote principle and whether it can or should be remedied in any way other than by subdistricting. This case, therefore, requires the court to take a new look at the "totality of the circumstances" test — and, in particular, at the 18 The Senate Report to the 1982 amendments to § 2 specifically observed, "The principle that the right to vote is denied or abridged by dilution of voting strength derives from the one-person, one-vote reapportionment case of Reynolds v. Sims.” S. Rep. 97-417 at 19, 1982 U.S. Cong. Code & Admin. News at 196. 22 three Gingles factors as the threshold considerations preliminary to that test — even though the underlying test, as developed in Whitcomb, White, and the amendments to § 2, has not changed. While the concept of vote dilution derives from the one-person, one-vote principle, there are other potential measures of vote dilution which do not rely on that principle. In her Gingles concurrence, Justice O’Connor suggested three measures of minority voting strength which a court might use in a vote dilution case: (1) mere proportionality; (2) the positing of an ideal districting scheme together with a calculation of the number of candidates preferred by the minority who would be elected under that scheme; and (3) the use of maximum feasible minority electoral success as a measure of "undiluted" minority voting strength. 478 U.S. at 88-89, 106 S. Ct. at 2786. In her view, however, although any measure might be used, none was automatic proof (or virtually automatic proof) of vote dilution. Rather, the actual local factors determining election results must be taken into account in determining actionable vote dilution "in the first instance" — as they were in Whitcomb and White. 478 U.S. at 97-99, 106 S. Ct. at 2790-91. Of the three possible measures of vote dilution listed by Justice O’Connor, the simplest is proportional representation. Call it what they will, that is the goal the Plaintiffs sought; using regression analysis, its lack is ail they proved; and that is the standard which led Judge Bunton to find a "violation" which had become inevitable once all proof other than race-based statistical analysis had been excluded. The obvious stumbling block to using proportional representation at all as the measure of vote dilution is the disclaimer expressly built into § 2 itself, which provides "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). However, while the proviso in § 2 unambiguously rejects the notion that any group has a right to proportional outcomes, it endorses taking into account the extent to which minorities have 23 been elected to office as "ong circumstance which may be considered" in determining vote dilution. Therefore, there is no barrier to beginning a vote dilution inquiry with an inquiry into disproportionate results. At the same time, the statute clearly requires that the focus of the court’s inquiry be — just as Whitcomb, White, Justice O’Connor, and § 2 itself said it must be — on the "totality of the circumstances" — not, like the Plaintiffs and district court in this case — solely on shortfall from proportional representation. To prove vote dilution, then, the Plaintiff group may begin by proving (1) that it is a protected racial or linguistic group whose members are qualified to vote within the political unit whose voting practice or procedure the group challenges; (2) that qualified group members have run for office and been rejected; and (3) that the proportion of elected class members falls short of proportional representation relative to the qualified candidate pool. This part of the vote dilution inquiry addresses the same concerns as Gingles 2 and 3, i.e ., whether the Plaintiffs can make a showing of disparate impact.19 19 The proof of vote dilution is analogous to the proof of employment discrimination in Title VII cases. In Texas o f Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089 (1981), the Supreme Court held that a plaintiff may prove a prima facie case of discrimination by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. Id.; 450 U.S. at 253, 101 S. Ct. at 1094 n. 6. Under Burdine, when a plaintiff has proved a prima facie case of disparate treatment, the burden shifts to the defendant to produce admissible evidence that the plaintiff was rejected or someone else was preferred for legitimate, nondiscriminatory reasons. 450 U.S. at 253-55, 101 S. Ct. at 1094. If the defendant carries this burden of production, he rebuts the presumption raised by the plaintiffs prima facie case, and the inquiry proceeds to a new level in which the plaintiff retains the burden of proving that the proffered reason was not the true reason for the employment decision. The Plaintiffs burden then "merges with the ultimate burden of persuading the court that she has been the 24 The qualified candidate element of the Plaintiffs’ prima facie case requires some elabora tion. Shortfall from proportional representation is necessarily measured against the pool of qualified applicants for the position. Ward’s Cove v. Atonio, 490 U.S. 642, 109 S. Ct. 2115, 2122 (1989). As the Supreme Court held in Ward’s Cove, "petitioners’ selection methods. . . cannot be said to have had a disparate impact on non-whites if the absence of minorities holding such skilled jobs reflects a dearth of qualified non-white applicants for reasons that are not petitioners’ fault." Id., at 2117, 2122. Thus, when all members of the electorate are eligible to run for office, proportional representation is measured by the number of office-holders elected as against the total number of minority class members of voting age. However, a plaintiff minority group cannot make out a prima facie discrimination case when the minority candidate pool is smaller than the percentage of minority class members elected to office. In the instant case, the Plaintiffs did not validly make out even a case of disparate results. When the small pool of Black lawyers constitutionally qualified to run for state district judge (3.8% in Harris County) is compared with the percentage of Black judges elected (5.1% in Harris County), Blacks are overrepresented on the bench, not underrepresented. Moreover, Dr. Champagne testified that, though the percentage varies, the pool of qualified Black judicial candidates is significantly smaller than the percentage of Black voters nationwide. Only a small number (although an increasing number) of Blacks are available to serve as state district judges — if they can be persuaded to run. Thus, it is not discrimination in the electoral process that victim of intentional discrimination." Id., 450 U.S. at 255-56, 101 S. Ct. at 1094-95. The test does not demand that the employer give preferential treatment to minorities nor does it require him to restructure his employment practices to maximize the number of minorities hired. Id., 450 U.S. at 259, 101 S. Ct. at 1096-98. While Burdine parallels the § 2 test, in Judge Wood’s view it is unnecessary to go to Burdine to find a comprehensive test for vote dilution since § 2 and its own case law provide their own criteria. 25 keeps Black judges from being elected in numbers proportionate to the total Black population — nor was there any such showing by the Plaintiffs. It is the small size of the candidate pool. Judge Bunton’s holding that illegal vote dilution exists in the target counties in Texas is clearly erroneous, even on the basis of disparate results alone. Assuming, however, for the sake of argument that Judge Bunton did not err — as he did — in finding racial discrimination on the basis of the mere showing that there are proportionately fewer Black state district judges in Texas than there are Blacks in the total population of Texas, the Plaintiffs in this case still would fall far short of having made out a violation of § 2 under the "totality of the circumstances" test. III. APPELLEES ALSO FAILED TO PROVE THAT RACIAL POLITICS DENIED MINORITIES EQUAL ACCESS TO THE POLITICAL PROCESS. When this case was before this Court for the first time, Judge Wood argued that Judge Bunton was able to rule in favor of the Plaintiffs only by greatly distorting the proof required of a § 2 Plaintiff. She hereby incorporates that argument by reference. See Judge Wood’s Appellant’s Brief at 28-39 and Supplemental En Banc Brief at 32-40. Essentially, Judge Wood argued that Judge Bunton eliminated virtually all inquiry into the objective local factors which determine the outcomes of Texas district judge races. By refusing to accept as valid the Defendants’ multivariate regression analysis, which factored in the political party of the candidate, Judge Bunton rejected the only statistical proof that could accurately explain the outcomes in the partisan races being analyzed. Instead, he based his holding almost exclusively on a statistically-based, non-causal standard of proof of racially polarized voting derived from a plurality section of Gingles authored by Justice Brennan — Part III-C — and expressly rejected by a majority of the Gingles court. Judge Bunton went even further than Justice Brennan to reach egregiously erroneous results. While Justice Brennan would exclude as irrelevant not only the causes of electoral 26 results but also the ra£g of the candidates — on the ground that only the status of the candidate as the chosen representative of the minority group is important, 478 U.S. at 68, 106 S. Ct. at 2775 — Judge Bunton counted only races in which minorities ran and then excluded as anomalous all races in which minorities ran and failed to receive the votes of the minority — i.e., all races in which the minority candidate ran as a Republican. The result of these statistical manipulations was a standard of proof under which legally significant racially polarized bloc voting was established every time a Black Democrat was defeated but not when a Black Republican was defeated. However, Judge Bunton concluded that, "Racially polarized voting indicates that the group prefers candidates of the particular race" — a thesis contradicted by the very proof he relied on. Op. at 21 (emphasis added).20 The "searching, practical evaluation" and "intensely local appraisal of the design and impact" of the contested electoral practice or device, required by all members of the Supreme Court in Gingles, 478 U.S. at 79, 101, 106 S. Ct. at 2781, 2793, clearly demonstrate that "ra cial politics" play no role or, at best, an insignificant role in Texas judicial elections. A sound analysis of genuine local factors in Texas’ partisan district judge races shows that, as Dr. Taebel, Dr. Champagne, and Judge Davidson testified, partisan voting far better explains the results in Texas district judge races than racial voting. Indeed, Defendants introduced over 20 Justice Brennan’s test has its own problems. Under that test, illegal vote dilution can never be statistically established in partisan races so long as Blacks remain Democrats and Democrats (of whatever race) win, since Justice Brennan would count all races in which minorities vote, regardless of the race of the candidate. Such an analysis of judicial races in Hams County, Texas, for example, would show Black-preferred candidates winning more than 50% of the time — since more than 50% of all Harris County judges are Democrats and 97% of all Black voters in Harris County prefer Democrats. The same test, however, would inevitably show racially polarized voting in Dallas County — which is a heavily Republican county in which Black voters vote as Democrats. See Judge Entz’s Brief on Remand. Obviously, therefore, Justice Brennan’s theory does not offer a valid measure of racial discrimination in partisan races any more than Judge Bunton’s does. 27 whelming evidence that the outcomes of state district judge elections in Harris County are determined in the first instance by partisan voting and, secondarily, by discretionary judicial voting based on factors such as incumbency, bar poll results and newspaper endorsements. The Defendants demonstrated that most voters do not even know who judicial candidates are, much less what their race is. The Plaintiffs were entirely unable to counter this proof by any showing that Texas judicial elections are dominated by "racial politics," as required by § 2. To the contrary, the witnesses for the Plaintiffs in Harris County were unable to point to any racial slurs or incidents or invidious campaign practices, such as the slating of white candidates, to support their racial discrimination claim. The district court was able to rule in favor of the Plaintiffs only by dismissing the Defendant’s proof out of hand as "legally incompetent" or "irrelevant" and by counting the Plaintiffs’ statistical proof as probative, even though it was unauthenticated, out of date, and skewed to find racial politics by its very simplicity, i.e., a virtually self-fulfilling prophecy. This is contrary to the statute, contrary to its legislative history, and contrary to all judicial interpretations of § 2. The instant case is, in fact, on all fours with Whitcomb: just as in that case, the Plaintiffs were able to show only that, fielding only a few candidates for office (despite the total absence of any white-imposed barriers to Blacks in the district judge electoral process), Blacks, together with other Democrats, have not elected enough Black state district judges to roughly equal the percentage of Blacks in the total population. This is exactly the type of showing which the Supreme Court held in Whitcomb failed to show illegal vote dilution under the results test. 403 U.S. at 153, 91 S. Ct. at 1874. At best, it shows only dilution by partisan voting, not dilution by the voting of racial preferences. Since partisanship and not racial politics actually determines 28 the results of Texas judicial elections, Judge Bunton erred in finding illegal vote dilution in the target counties. IV. APPELLEES FAILED TO PROVE THAT THE DEGREE OF ANY VIOLATION FOUND JUSTIFIED THE EXERCISE OF REMEDIAL POWER, GIVEN THE INTRUSIVENESS OF THE REMEDY SOUGHT. A. Appellees Proved No Violation. In each vote dilution case, the court must separately determine the existence and severity of vote dilution and assess the state interests that would be affected. Then it must balance the severity of the dilution against the intrusion on state interests necessary to cure it to determine if a remediable violation of § 2 exists under the totality of the circumstances. In this case, the Plaintiffs introduced only weak statistical proof of vote dilution divorced from reality. They were unable to prove that the challenged election system was created or maintained as a pretext for discrimination. They were unable to establish that creating guaranteed Black judicial benches would serve any purpose other than to provide Black role models and were affronted at the mere suggestion that Black judges would serve any specialized interests different from those served by Texas’ majority judges. Thus they established no violation. B. Appellees’ Proposed Remedy is Extreme and Intrusive. Let us assume, however, that the Plaintiffs had been able to show some degree of actual vote dilution in Texas district judge elections. At that point, the court must inquire whether the dilution can be remedied without great violence to state institutions. Such an inquiry is built into Gingles 1, which requires that Plaintiffs seeking to establish illegal vote dilution in at-large districts demonstrate that at least one minority/majority district meeting constitutional guidelines (of one-person, one-vote, compactness, etc.) can be drawn. As discussed below, the Gingles remedy may not be appropriate in all cases, especially in cases such as this one. Nevertheless, 29 the Plaintiffs must be required (as they always have been) to state what remedy they seek as part of their burden of proof in the liability stage of a vote dilution inquiry and to put on evidence to show that the remedy sought does not intrude impermissibly on state interests, and thus is not beyond the power of the court — or of Congress — to provide. Most vote dilution cases prior to this one sought subdistricting — pursuant to Gingles 1 — to allow minorities an enhanced opportunity to ensure the election of minority legislators, councilmen, or board or commission members. In each such case there was little or no question that the remedy sought did not abuse state goals and policies, was constitutional, was effective, and was tailored to address the grievance expressed in the § 2 claim—the inability of minority class members to make their interests heard within the pre-existing legislative or board district. This case is fundamentally different. First, as both the panel and the en banc concurring minority in this case held, district court judges are single-member office holders who wield full power in their courts. Any subdis tricting remedy would necessarily, therefore, thwart the State’s fundamental political decision "to have trial judges who wield full judicial authority alone, a structure we must accept." LULAC, 914 F.2d at 649 (Higginbotham, J., concurring). As this Court foresaw, [sjubdistricting would not create an equal opportunity for representation in deci sion-making . . . . [R]ather than provide minorities with representation in all decisions, [subdistricting a single-member office] simply allocate^] judges, and thus judicial decisions among various population groups. The Voting Rights Act does not authorize such allocation. It cannot be made to authorize allocating judges by simply restating the office of district judge as a shared office or by asserting that the "function" of an office is not relevant. . . . Function is relevant to the threshold question of what features of the state arrangement define the office. Id. Justice Stevens, in his majority opinion in this case, also recognized that the State’s interest in electing judges on a district-wide basis may preclude a remedy that involves redrawing boundaries or subdividing districts, or may even 30 preclude a finding that vote dilution has occurred under the "totality of the circumstances." 111 S. Ct. at 2380. The case was remanded so that the weight to be assigned such issues could be assessed. Id., at 2381. Moreover, the evidence at trial was overwhelming that the remedy sought by the Plain tiffs ran directly counter to the historical preference of the citizens of Texas for an elected judiciary in which each judge is accountable to each voter and independent from special interest groups. There was overwhelming evidence of the destructiveness of the proposed remedy on venue, on jury selection pools, on docket equalization, and on Texas’ specialized court system. The subdistricting remedy sought would have also divorced the electoral district from the county-wide jurisdictional district, disenfranchising 57/59 or 58/59 of all of the voters for each judge in Harris County, thereby greatly decreasing minority voting power.21 In other words, Texas’ race-neutral but compelling state interests in structuring its judicial election system were to be sacrificed to the introduction of racial politics into judicial elections in which they did not previously exist even though the cure could not remedy the disease. The Interim Plan actually imposed by Judge Bunton had the worst of the destructive fea tures foretold by Defendants’ witnesses. The Interim Plan would have thrust Texas’ judicial election system into chaos. By assigning judges to legislative districts — two to most Demo cratic districts and one to Republican districts — it directly enhanced Democratic political power but only incidentally enhanced minority political power. It disenfranchised most voters in most elections and ran roughshod over the equal protection clause of the Fourteenth Amendment to 21 Judge Higginbotham’s concurring en banc opinion recognized the State’s "compelling interest in linking jurisdiction and elective base forjudges acting alone and the risk that breaking the line might well lessen minority influence." 914 F.2d at 649. 31 the United States Constitution and the constitutional principle of one-person, one-vote. It courted severe sixth amendment problems, since that amendment guarantees the right to a jury drawn from a cross section of the community, and the relevant community has been defined by both state and federal courts as the judicial district. Williams v. Florida, 399 U.S. 78, 96, 90 S. Ct. 1893, 1904 (1970); Williams v. Superior Court, 263 Cal. Reptr. 503, 781 P.2d 537 (1989). It supplanted Texas’ goals in structuring its election system and its carefully crafted means for implementing those goals. Thus, both the remedy sought by Plaintiffs/Appellees and the remedy granted by Judge Bunton evinced an extreme intrusion into the area of a state’s power to structure its own electoral systems. C. Appellees’ Remedy Is Impermissibly Intrusive Under Statutory and Constitutional Guidelines. Given the essentially technical violation shown in this case, if any, and the extremely broad and destructive remedy, federal law provides the Court established guidelines for balancing violation, remedy and state interests. Section 2 of the Voting Rights Act was enacted pursuant to the equal protection clause of the Fourteenth Amendment to the United States Constitution. Rogers v. Lodge, 458 U.S. 613, 617, 102 S. Ct. 3272, 3275 (1982).22 While Congress’ enforcement powers under the Fourteenth and Fifteenth Amendments are broad, they are not unlimited: Specifically, there are at least three limitations upon Congress’ power to enforce the guarantees of the Civil War Amendments. [1] First, Congress may not by legislation repeal other provisions of the Constitution. [2] Second, the power granted to Congress was not intended to strip the States of their power to govern themselves or to convert our national government of enumerated powers into a 22 Section 2 is also derived from the Fifteenth Amendment, but ”[t]he [Fifteenth] Amendment’s command and effect are wholly negative"; that Amendment provides exemption from discrimination on account of race but does not confer suffrage on anyone. City o f Mobile, Ala. v. Bolden, 446 U.S. 55, 61-62, 100 S. Ct. 1490, 1497 (1980). 32 central government of unrestrained authority over every inch of the Nation. [3] Third, Congress may only "enforce" the provisions of the amendments and may do so only by "appropriate legislation." Oregon v. Mitchell, 400 U.S. 112, 128, 91 S. Ct. 266, 267 (1970) (emphasis added). As the Supreme Court has recognized, "’Each State has the power to prescribe the qualifications of its officers and the manner in which they shall be chosen.’" Gregory v. Ashcroft, ___U .S .___ , 111 S. Ct. 2395, 2400-01 (1991) (quoting Boyd v. Thayer, 143 U.S. 135, 161, 12 S. Ct. 375, 381-81 [1892]). It has further recognized that the authority of the people to determine the qualifications of their most important government officials and the establishment and operation of their own government lies at "’the heart of representative government’” and is protected by the Tenth Amendment to the United States Constitution and the Guaranty Clause.23 Id. at 2402 (quoting Bernal v. Fainter, 467 U.S. 216, 221, 104 S. Ct. 2312, 2316 [1984]); see also Duncan v. McCall, 139 U.S. 449, 11 S. Ct. 573, 577 (1891). This constitutionally mandated balance of power between the states and the federal government was adopted by the Framers of the Constitution to insure the protection of "’our fundamental liberties’" and to "reduce the risk of tyranny and abuse from either front." Id., at 2400 (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242, 105 S. Ct. 3142, 3147 [1985]); see also E.E.O.C. v. Wyoming, 460 U.S. 226, 103 S. Ct. 1054, 1060 (1983) ("the unique benefits of a federal system in which the states enjoy a ’separate and independent existence’ [must] not be lost through undue federal inter ference in certain core state functions"); Id., at 1072 (Burger, C.J., dissenting) (the Fourteenth 23 The Guaranty Clause provides that ”[t]he United States shall guarantee to every State in this Union a Republican Form of Government," U.S. Const, art. IV § 4, while the Tenth Amendment provides that ”[t]he powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people." U.S. Const. Amend. X. Copies of the Guaranty Clause and the Tenth Amendment are included in the Appendix at 5a and 6a respectively. 33 LULAC, 914 F.2d at 630-31. The concurring minority in this case similarly "would not rest on inference to support such a grant of authority. It would run counter to fundamental concepts of federalism." Id. at 649 (Higginbotham, J., concurring). Section 2 merely prohibits conduct which results in dilution of the votes of protected classes; it nowhere evinces an express intent to impose entire federally-created judicial selection systems on states to eliminate resultant vote dilution. And indeed, the legislative history of the 1982 amendments to § 2 indicates that Congress never envisioned that § 2 would be invoked to force the dismantling and restructuring of entire state electoral systems — such as a state’s dis trict court election system — to ensure an electoral structure more responsive to the votes of protected minorities. Indeed, Congress’ official report on the 1982 amendments to the Voting Rights Act concluded that § 2 as amended "will not result in wholesale invalidation of electoral structures." S. Rep. No. 97-417 at 35, 1982 U.S. Code Cong. & Admin. News at 213 (emphasis added). Yet, that is exactly how § 2 has been used in this case. Since § 2 says not a word about the dismantling and restructuring of state election sys tems that merely have the result of diluting the votes of protected classes, and since it "defies common sense," as well as legislative history, to believe that Congress, in enacting or amending § 2, intended to impose such a burden on the states, it must be inferred that Congress did not create a right in minority voters to force the dismantling and restructuring of a State’s district judge election system to remedy resultant vote dilution. See Pennhurst, 451 U.S. at 27-31, 101 S. Ct. at 1545-47. Consequently, it must be inferred that Judge Bunton erred. The constitutional tensions raised by this case are implicitly present in every application of the totality of the circumstances test mandated by § 2 of the Voting Rights Act, yet they have lain quiescent until now because Gingles (and its redistricting predecessors back to Reynolds v. 35 Sims) have built into the test for vote dilution a constitutional remedy applicable to most cases: if the problem is the inability of minorities to make their racial interests known in a large district, the problem can be cured with no constitutional violation and with a minimal intrusion on state affairs by carving up one large multi-member district into smaller districts in which the minority can be guaranteed a voice. In a case such as the present one, however, the constitu tional concerns raised cannot be simply accommodated by subdistricting; indeed, any such remedy would be deeply intrusive on the right of the State of Texas to structure its own govern ment. Moreover, such a remedy would not cure the dilution complained of and is not tailored to be commensurate with the violation. In every § 2 case, the plaintiff group must then, as part of the totality of the circumstances test, propose a remedy for its grievance (just as it must under Gingles 1); and it must defend that remedy against evidence that it intrudes on the constitutional rights of the State to structure its core functions, that it is non-curative and/or that the cure is incommensurate with the violation. A strong showing of practices such as slating, non-responsiveness of officials to the interest of the minority group, an arbitrary procedure that just "happens" to discriminate against minorities, racial name-calling in political campaigns, and a recent history of racism in local electoral practices would strongly tend to establish illegal vote dilution, but a feeble showing of purportedly disparate results in a system otherwise specifically held not to have been adopted or perpetuated to accomplish impermissible racial objectives (i.e., a showing such as that made by the Plaintiffs/Appellees in this case) would not. Moreover, the greater the showing of genuine racial discrimination in the electoral process, the greater the justification for a more intrusive remedy. Intentional racism (such as opening the polls to Blacks for only three hours) would justify a much more intrusive remedy than mere racially disproportionate results; but even 36 disproportionate results, when sufficiently tainted by racial politics, could justify imposition of an unintrusive remedy. For example, if the state’s interest is in electing its judges from geographically distinct districts and yet it makes an exception and elects two judges from one large district with the effect of diluting minority votes in that one district, a slight showing of racial politics might justify splitting the lone two-judge district into two districts. The balancing test set out above derives from the requirements of § 2 itself and is en joined on the courts as a matter of law, just as it is in all cases that probe the limits of Congressional intrusion upon the power of the states to structure their own government. In the instant case, such a balancing test clearly shows that the remedy for vote dilution proposed by the Plaintiffs and that adopted by Judge Bunton were non-curative, were not tailored to correct for dilution, and were unconstitutionally intrusive on the State of Texas’ constitutional right to structure its own judicial election system. V. FINALLY, THE REMEDY STAGE OF A VOTE DILUTION CASE — IF ANY — MUST PROCEED WITHIN STRICT CONSTRAINTS. Once the Court has made a determination (1) that the minority group’s electoral results are disproportionately low when measured against the minority candidate pool, (2) that the electoral process is, in actual local fact, not equally open to the minority group because of dominance by racial politics, and (3) that the remedy sought is curative, commensurate with the violation, and not unconstitutional, the focus shifts to the remedial stage of the proceedings. This must proceed, according to well-established precedent, by the federal court’s granting the appropriate state or local authorities an adequate opportunity to constitutionally remedy the defects in the dilutive scheme or practice. Reynolds v. Sims, 377 U.S. 533, 586, 84 S. Ct. 1362, 1394 (1964). Only if the local authorities fail to act in a timely fashion may the court devise its own plan. See McDaniel v. Sanchez, 452 U.S. 130, 150, 101 S. Ct. 2224, 2236 n. 37 30 (1981); Wise v. Lipscomb, 437 U.S. 535, 540, 98 S. Ct. 2493, 2497 (1978); Chisom v. Roemer, 853 F.2d 1186, 1192 (5th Cir. 1988). Because the construction of state electoral practices and procedures is primarily the duty and responsibility of the State (and is, indeed, a fundamental state power), a federal court will be held to a higher standard than the legislature in devising a corrective plan. Wise, 437 U.S. at 540, 98 S. Ct. at 2497; McDaniel, 452 U.S. at 139, 101 S. Ct. at 2230; Connor v. Finch, 431 U.S. 407, 415, 97 S. Ct. 1828, 1833 (1977). In fashioning a remedial plan or choosing among plans, a federal district court should "follow the policies and preferences of the State, as expressed in statutory and constitutional provisions" and "should not preempt the legislative task nor ’intrude upon state policy any more than necessary.’" Upham v. Seamon, 456 U.S. 37, 41-42, 102 S. Ct. 1518, 1521 (1982) (per curiam) (quoting White v. Weiser, 412 U.S. 783, 795, 93 S. Ct. 2348, 2355 (1973). It is impermissible for a trial court to cut a broad swath qcross state goals and policies, to implement its own preferences, or to impose experimental, non- democratic electoral processes on all the citizens of a state to enhance the votes of some, as Judge Bunton did in this case. See Whitcomb, 403 U.S. at 160, 91 S. Ct. at 1878 (the District Court erred in fashioning a court-ordered plan that disestablished entire county district and intruded upon state policy choices more than necessary to correct for violation); Martin v. Mabus, 700 F. Supp. 327, 337 (S.D. Miss. 1988) (rejecting limited voting as a remedy for vote dilution as experimental and contrary to most Mississippi election laws, the policy contained therein, and "to most general concepts of a democratic two-party system"). The Plaintiffs/Appellees in this case have indicated that they will seek a cumulative voting remedy should this case ever proceed to the remedial stage. First, it is improper for Plaintiffs to propose remedies at the remedial stage which are not litigated at trial since the proposed 38 remedy is part and parcel of the balancing test which the Court must conduct in the liability phase to determine whether a remediable violation exists. Second, cumulative voting does not remedy vote dilution since it segregates minority votes, causing minority voters to lose their influence on most elections in order to increase their influence in a few elections. Moreover, cumulative voting presupposes — contrary to the evidence — that minority voters’ only interest is in electing a candidate of their race and that they will know who that candidate is. Finally, cumulative voting is an experimental, anti-democratic process that is entirely alien not only to Texas election laws and policies but to American laws and policies in general. The introduction of such a radically new procedure into a state’s electoral process should come from the people after full debate, not from the federal courts by fia t, as the Court wisely pointed out in Martin.™ VI. THE DISTRICT COURT CLEARLY ERRED IN FINDING ILLEGAL VOTE DILUTION IN STATE DISTRICT JUDGE ELECTIONS. Under the arguments and authorities set forth above, the district court in this case clearly erred on any of a number of grounds. Judge Bunton followed a standard of proof endorsed by no authority but his own which departed critically from all Supreme Court authority on point. He rejected Defendants’ evidence as "irrelevant" and "legally incompetent" on no authority but his own. He accepted deeply flawed, outdated, unauthenticated, and unproduced evidence from the Plaintiffs as authoritative. He endorsed a non-causal, statistically-based standard of proof 24 Martin was a challenge to Mississippi’s system of electing circuit, chancery, and some county court judges. Having found vote dilution, the Court permitted the plaintiffs to re-open the evidence in the remedy phase to present proof of alternative voting remedies instead of single-member subdistricts. 700 F. Supp. at 336. The plaintiffs introduced evidence of a limited voting or cumulative voting procedure, which, as set forth above, the Court rejected. The district court, in rejecting that demand, wisely cautioned against "imposing a radically new, judge-made process." Id.., at 337. 39 of vote dilution which expressly excluded from consideration the actual dominant factor in local politics — political partisanship. He held the barest minimum of a statistical showing of disparate election results sufficient virtually by itself not only to establish vote dilution but to justify the immediate and total restructuring of Texas’ judicial election system. With only a cursory glance towards the Texas legislature, he constructed and imposed his own personal judi cial election system. These errors afford this Court numerous grounds to reverse the decision of the district court and render judgment for Defendants. CONCLUSION WHEREFORE, for the foregoing reasons, Appellant/Defendant/Intervenor Harris County District Judge Sharolyn Wood respectfully requests that the Court reverse the judgment of the District Court and render judgment for Defendants/Appellants. Respectfully submitted, - . PORTER & CLEMENTS 3500 NCNB Center 700 Louisiana Street Houston, Texas 77002-2730 Telephone: (713) 226-0600 Facsimile: (713) 228-1331 ATTORNEYS FOR APPELLANT/DEFENDANT/ INTERVENOR HARRIS COUNTY DISTRICT JUDGE SHAROLYN WOODOF COUNSEL: Michael J. Wood Attorney at Law 440 Louisiana, Suite 200 Houston, Texas 77002 Telephone: (713) 228-5101 Facsimile: (713) 223-9133 40 CERTIFICATE OF SERVICE I certify that on this 6th day of September, 1991,1 sent a copy of the foregoing document by first class United States mail, postage prepaid, to each of the following: William L. Garrett, Garrett, Thompson & Chang, 8300 Douglas, Suite 800, Dallas, Texas 75226; Rolando Rios, Southwest Voter Registration & Education Project, 201 N. St. Mary’s, Suite 521, San Antonio, Texas 78205; Sherrilyn A. Ifill, NAACP Legal Defense and Educational Fund, Inc., 99 Hudson Street, 16th Floor, New York, New York 10013; Gabrielle K. McDonald, 301 Congress Avenue, Suite 2050, Austin, Texas 78701; Edward B. Cloutman, III, Mullinax, Wells, Baab & Cloutman, P.C., 3301 Elm Street, Dallas, Texas 75226-1637; Robert H. Mow, Jr., Hughes & Luce, 2800 Momentum Place, 1717 Main Street, Dallas, Texas 75201; Walter L. Irvin, 5787 South Hampton Road, Suite 210, Lock Box 122, Dallas, Texas 75232-2255; Susan Finkelstein, Texas Rural Legal Aid, Inc., 201 N. St. Mary’s #600, San Antonio, Texas 78205; Renea Hicks, Special Assistant Attorney General, P. O. Box 12548, Capitol Station, Austin, Texas 78711- 2548; and Seagal V. Wheatley, Oppenheimer, Rosenberg, Kelleher & Wheatley, Inc., 711 Navarro, Sixth Floor, San Antonio, Texas 78205. 3285C:\DOCS\W0027001\ENBANC.001 41 42 § 1973 PUBLIC HEALTH AND WELFARE SUBCHAPTER I-A—ENFORCEMENT OF VOTING RIGHTS Law Review Commentaries ••Remedy” rationale for requiring or permitting otherwise prohibited discrimination: How the Court overcame the Constitution and the 1964 Civil Rights Act. Lino A. Graglia, 22 Suffolk U.L.Rev. 569 (1988). § 1973. Denial or abridgement of right to vote on account of race or color through voting qualifications or prerequisites; establishment of viola tion (a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) of this section. (b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomina tion or election in the State or political subdivision are not equally open to partic ipation 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. (As amended Pub. L. 97-205. § 3, June 29. 1982, 96 StaL 134.) Historical and Statutory Notes 1982 Amendment. Pub. L. 97-205 redesignated existing provisions as (a), in subscc. (a), as so redesignated struck out the comma following ‘‘voting”, substituted “in a manner which results in a denial or abridgement of* for ”to deny or abridge”, inserted ”, as provided in subsection (b) of this section” following ”in contravention of the guarantees set forth in section 1973b (0(2) of this title”, and added subsec. (b). Effective Date of 1982 Amendment. Section 6 of Pub. L. 97-205 provided that: '’Except as otherwise provided in this Act, the amendments made by this Act (enacting section 1973aa-6 of this title, amending this section and sections 1973b and 1973aa-la of this title, and enacting provi sions set out as notes under this (ection and sections 1971. 1973b. 1973aa-la and l973aa-6 of this title] shall take effect on the date of the enactment of this Act (June 29, 1982].” Short Title of 1982 Amendment. Section 1 of Pub. L. 97-205 provided: “That this Act (enact ing section 1973aa-6 of this title, amending sec tions 1973. 1973b. and 1973aa-la of this title, and enacting provisions set out as notes under this section and sections 1971, 1973b. I973aa-la. and 1973aa-6 of this title] may be cued as the ‘Voting Rights Act Amendments of 1982*.” Legislative History. For legislative history and purpose of Pub. L. 97-205. see 1982 U. S. Code Cong, and Adm. News. p. 177. Cross References Voting Accessibility for the Elderly and Handi capped Act. construction of not to impair any right guaranteed by this subchapter, see section 1973ee-5 of this title. West’s Federal Practice Manual Inquiry and jurisdiction, see § 12293. One man, one vote, see § 12284. Law Review Commentaries Anti-subordination above ail: Sex, race, and equal protection. Ruth Colker, 61 N.Y.U.L.Rev. 1003 (1986). Application of Voting Rights Act to communi ties containing two or more minonty groups— when is the whole greater than the sum of the parts? Rick G. Strange, 20 Texas Tech L.Rev. 95 (1989). Beyond civil rights restoration legislation: Res- tructing Title VII. Roy L. Brooks, 34 St. Louis U.LJ. 551 (1990). Defining the minority-preferred candidate un der Section 2. Note, 99 YaJe LJ. 1651 (1990). Enforcing the Voting Rights Act in Mississippi through litigation. Carroll Rhodes, 57 Miss.LJ. 705 (1987). Home rule cities and municipal annexation in Texas: Recent trends and future prospects. Rob ert R. Ashcroft and Barbara Kyle Balfour, 15 St. Mary's L J. 519 (1984). “OfTicial English”: Federal limits on efforts to curtail bilingual services in the states. 100 Har vard LRcv. 1345 (1987). Protest, politics, and litigation: Political and social change in Mississippi. Frank R. Parker, 57 Miss.LJ. 677 (1987). Raising politics up: Minority political partic ipation and Section 2 of the Voting Rights Act. Kathryn Abrams. 63 N.Y.U.L.Rev. 449 (1988). State employee discrimination claims—is the conflict between Title VII and Section 198 re solved? 61 Notre Dame L.Rev. 88 (1986). la CONSTITUTION Art 5, § 7 Not* 1 same manner aa issues of fact are determined in other civil actions, does not change Court of Civil Appeals to trial court with powers of judge or jury to hear evidence and resolve disputed fact issues. Id. Even if Court of Civil Appeals had jurisdiction to render declaratory judgment, it could only be in those cases where material facts are estab lished beyond dispute. Id. 34. Vacancies The Chief Justice of the Supreme Court of Texas may assign retired appellate court judges to active duty on any Court of Civil Appeals only in those cases where the particular Court of Civil Appeals lacks a full complement of three judges by reason of a vacancy or due to the disqualifica tion, absence or inability to serve of a regular member of such Court of Civil Appeals. Op. Atty.Gen.1966, No. C-734. 35. Rules of decision It is constitutional duty of the Court of Civil Appeals to follow the law as announced by the Supreme Court where the identical question has been decided. St. Paul Ins. Co. v. Gallup (Civ. App.1974) 506 S.W.2d 757, affirmed 515 S.W.2d 249. § 7. Judicial Districts; District Judges; disqualification of Judge Sec. 7. The State shall be divided into judicial districts, with each district having one or more Judges as may be provided by law or by this Constitution. Each district judge shall be elected by the qualified voters at a General Election and shall be a citizen of the United States and of this State, who is licensed to practice law in this State and has been a practicing lawyer or a Judge of a Court in this State, or both combined, for four (4) years next preceding his election, who has resided in the district in which he was elected for two (2) years next preceding his election, and who shall reside in his district during his term of office and hold his office for the period of four (4) years, and who shall receive for his services an annual salary to be fixed by the Legislature. The Court shall conduct its proceedings at the county seat of the county in which the case is pending, except as otherwise provided by law. He shall hold the regular terms of his Court at the County Seat of each County in his district in such manner as may be prescribed by law. The Legislature shall have power by General or Special Laws to make such provisions concerning the terms or sessions of each Court as it may deem necessary. The Legislature shall also provide for the holding of District Court when the Judge thereof is absent, or is from any cause disabled or disqualified from presiding. Amended Nov. 5, 1985. Amendment adopted in 1985 was proposed by Acts 1985, 69th Leg., SJ.R. No. 14. § 3. Cross References Judicial Districts Act of 1969, see Vernon's Ann.Civ.St. art. 199a. Law Review Commentaries Court reform, Texas style. Clarence A. Guit- tard, 21 Southwestern LJ. (Tex.) 451, 456 (1967). 33 2a Notes of Decisions Party to suit 17 1. Construction and application Where trial court and Court of Civil Appeals had refused to enjoin placing of nominee's name on ballot as candidate for judgeship and to de clare that candidate was not qualified to occupy the office and, in the meantime, individual had been elected and was occupying office, it would have been improper for Supreme Court to grant 36. Questions of fact Phrase “questions of fact" is, in context of this section providing for decisions of Courts of Appeals to “be conclusive on all questions of fact brought before them on appeal or error,” legal term of art signifying questions of weight, and preponderance of evidence. Combs v. State (Cr. App.1982) 643 S.W.2d 709, on remand 652 S.W.2d 804. 37. Criminal cases Criminal cases are not within provision of this section stating that decisions of the Courts of Appeal Bhall be conclusive on all questions of fact brought before them on appeal or writ of error. Arvay v. State (App.1983) 646 S.W.2d 320, review refused. Unless legislature prescribes to contrary, Court of Appeals has authority under this sec tion to review unassigned errors shown by face of record in criminal appeals when, in Court's opinion, it is in interest of justice to do so. Smith v. State (App.12 Dist.1983) 654 S.W.2d 539. Where defendant has been deprived of due process, it is Court of Appeals’ constitutional duty to take appropriate decisional action to en force such constitutional protections. Skelton v. State (App. 12 Dist.1983) 655 S.W.2d 302, error refused. terms or sessions; absence, disability or CONSTITUTION Art. 5, § 7 Not* 1 declaratory relief, since declaranon of rights could not finally settle controversy; only coer- eve relief available was quo warranto to oust judge from office. State ex rei. McKie v. Bull ock (Sup. 1973) 491 S.W.2d 659. Even though judge of the 88th judicial distort heard the original divorce suit which was filed in the 159th district and entered the basic judg ment which led to contempt proceedings in which husband was found in contempt for retusmg to answer questions, the judge had neither a right nor a duty to perform thereafter in connection with the judgment except as a judge of the lo9th district court so that judge s order holding hus band guilty of contempt of court m the 88th district court denied due process, and was func tus officio and void; judge had no propneta^ interest in the judgment which could be enforced on^by a judge sitting m § * * « * * « “ Ex parte Lowery (Civ.App.1975) 518 S.W.2d 897. There is no provision in the State Constitution, the Revised Civil Statutes, or the Election Code that would require that the name of a state district judge appointed on June 17, 1982. to fill a vacancy on the Supreme Court created by the death of the previous officeholder on June 10, 1982, and who serves in such office until Janu ary 1 1983, because of the appointment, be removed from the general election ballot as a candidate for a state district judgeship; the Su preme Court appointee, thus, may remain on the November general election ballot as a candidate for state district judge and, if reelected, may assume the duties of that ofJ iMn7 T̂ Û R2V 1983. Election Law Opinion No. DAD-35 (1383). 4. Qualifications of judge Pleadings, affidavits and evidence presented a controverted fart question as to how long relator had been or would have been a practicing lawyer next preceding election day and hence manda mus would not issue to compel county Republi can Executive Committee to place relator’s name on ballot of Republican primary election as a candidate for nomination for office of District Judge who, under this Article, must have been a practicing attorney for four years next preced ing the election. Ferris v. Carlson (Civ.App. 1958) 314 S.W.2d 295. Where proposed candidate, who sought to have his name placed on ballot for primary as candidate for Republican nomination for judge of District Court, was engaged in business of a securities dealer, but he had a law license had paid his State Bar dues, and claimed to be a practicing lawyer, question whether he was a “practicing lawyer'' within this article requiring that judge of District Court be a “practicing lawyer” or judge, or both combined, for four yeara preceding the election, was a question of mixed law and fact, which Republican Party Executive Committee of county had no power to determine, and committee had no right to refuse him a place on the ballot. Ferris v. Carlson (1958) 158 T. 546, 314 S.W.2d 577. Neither courts nor legislature may add to qualifications prescribed by Constitution for of fice of distinct judge. Ex parte Lefors (1961) 171 Cr.R. 229, 347 S.W.2d 254. Canons of Judicial Ethics have not been adopted in Texas and do not have status of law. McKnight v. State (Cr.App.1968) 432 S.W.2d 69. 5. Term of office In view of severance clause, invalidity of pro vision, in Vernon’s Ann.Civ.St. art. 199-160 cre ating permanent district court, for election ot judge to two-year term at first general election did not affect remaining provisions of the act, but constitutional provision setting four-year term would be read into the act. Eades v. Drake (1960) 160 T. 381, 332 S.W.2d 553. Provision of Vernon's Ann.Civ.St a r t 199-160. § 4 for election of judge of permanent district court to two-year term at first general election was void as being at variance with requirement of this section that the distinct court judges shall be elected for a term of four years. Id. 6. Special judges Attorneys were not authorized to elect special judge merely because no session of distinct court had been ordered by regular judge. Ex parte Jones (Cr.App.1957) 298 S.W.2d 121. 8. Place of holding court Trial court had authority to permit introduc tion of additional testimony in action attacking county school board trustees' order tion even though hearing was not held m the county seat. Barnhart Independent School Uist. v. Mertzon Independent School Disti (Civ.App. 1971) 464 S.W.2d 197, ref. n.r.e. 17. Party to suit Trial judge was not disqualified from presid ing in a suit for an injunction restraining title insurance company from practicing law on ground that he was a member in the state bar, a party to the suit Alamo Title Co. v. ban, Anttj- nio Bar Ass n (Civ.App.1963) 360 S.W.2d 814, ref. n.r.e. § 7a. Judicial Districts Board; reapportionment of judicial districts j Sec 7a (a) The Judicial Districts Board is created to reapportion the judicial district. 34 3a CONSTITUTION Art. 5, § 7a_ the president of the Texas Judicial Council, and one person who is licensed to practice law in this state appointed by the governor with the advice and consent of the senate for a term of four years. In the event of a vacancy in the appointed membership, the vacancy is filled for the unexpired term in the same manner as the original appointment. (c) A majority of the total membership of the board constitutes a quorum for the transaction of business. The adoption of a reapportionment order requires a majority vote of the total membership of the board. (d) The reapportionment powers of the board shall be exercised in the interims between regular sessions of the legislature, except that a reapportionment may not be ordered by the board during an interim immediately following a regular session of the legislature in which a valid and subsisting statewide apportionment of judicial districts is enacted by the legislature. The board has other powers and duties as provided by the legislature and shall exercise its powers under the policies, rules, standards, and conditions, not inconsist ent with this section, that the legislature provides. (e) Unless the legislature enacts a statewide reapportionment of the judicial districts following each federal decennial census, the board shall convene not later than the first Monday of June of the third year following the year in which the federal decennial census is taken to make a statewide reapportionment of the districts. The board shall complete its work on the reapportionment and file its order with the secretary of state not later than August 31 of the same year. If the Judicial Districts Board fails to make a statewide apportionment by that date, the Legislative Redistricting Board established by Article III, Section 28, of this constitution shall make a statewide reapportionment of the judicial districts not later than the 150th day after the final day for the Judicial Districts Board to make the reapportionment. (f) In addition to the statewide reapportionment, the board may reapportion the judicial districts of the state as the necessity for reapportionment appears by redesignating, in one or more reapportionment orders, the county or counties that comprise the specific judicial districts affected by those reapportionment orders. In modifying any judicial district, no county having a population as large or larger than the population of the judicial district being reapportioned shall be added to the judicial district. (g) Except as provided by Subsection (i) of this section, this section does not limit the power of the legislature to reapportion the judicial districts of the state, to increase the number of judicial districts, or to provide for consequent matters on reapportionment. The legislature may provide for the effect of a reapportionment made by the board on pending cases or the transfer of pending cases, for jurisdiction of a county court where county court jurisdiction has been vested by law in a district court affected by the reapportionment, for terms of the courts upon existing officers and their duties, and for all other matters affected by the reapportionment. The legislature may delegate any of these powers to the board. The legislature shall provide for the necessary expenses of the board. (h) Any judicial reapportionment order adopted by the board must be approved by a record vote of the majority of the membership of both the senate and house of representatives before such order can become effective and binding. (i) The legislature, the Judicial Districts Board, or the Legislative Redistncang Board may not redistnct the judicial districts to provide for any judicial district smaller m size than an entire county except as provided by this section. Judicial districts smaller in size than the entire county may be created subsequent to a general election where a majority of the persons voting on the proposition adopt the proposition “to allow the division of ________ County into judicial districts composed of parts o f _________County.” No redistricting plan may be proposed or adopted by the legislature, the Judicial Districts Board, or the Legislative Redistricting Board in anticipation of a future action by the voters of any county. Adopted Nov. 5, 1985. Amendment adopted in 1985 was proposed by Acts 1985, 69th Leg., SJ.R. No. 14, § 1. 35 4a Art. 4 R E P U B U C A N G O V E R N M E N T Sec. 4 but title was taken by the United States, the lands were property of the United States and were therefore immune from state or county taxes, even though title was held in trust for the Indian tribe. U.S. v. Board of Com’rs of Fremont County, Wyo., C.C.A.Wyo.1944, 145 F.2d 329, certiorari denied 65 S.Ct. 563, 323 U.S. 804, 89 L.Ed. 641. 152. ----- Lumber Tax imposed by state on taxpayers' activities in severing lumber from government land under contract with government does not impose an uncon stitutional burden on the federal govern ment. Mulson v. Cook, Ark. 1946, 66 S.Ct. 663, 327 U.S. 474, 90 L.Ed. 793, mandate conformed to 193 S.W.2d 818. 153. ----- Motor vehicles Member of military force stationed within military reservation was subject to state motor vehicle tax on automobile occasionally used on state highways. State v. Storaasli, 1930, 230 N.W. 572, 180 Minn. 241, affirmed 51 S.Ct. 354, 283 US. 57, 75 L.Ed. 839. 154. Trespass or injury to lands The regulations of Congress or a de partment of the government governing the right to pasturage on a national for est reservation and prohibiting the gen eral grazing of such lands are para mount; hence, a state statute providing that the owner of trespassing animals { shall not be liable in cases where there is ic no lawful fence must give way to the federal regulation. U.S. v. Gurley, D.C. Ga.1922, 279 F. 874. The State of Montana has no domin ion over public lands, and it is within the province of the United States to for bid trespass. Shannon v. U.S., C.C.A. Mont. 1908, 160 F. 870. 155. Weapons regulation Where State s laws conflict with hunt ing and firearms regulations of National Park Service, promulgated pursuant to authority under Art. 4, § 3, cl. 2 local laws must recede. U.S. v. Brown, D.C. Minn.1976, 431 F.Supp. 56, affirmed 552 F.2d 817, certiorari denied 97 S.Ct. 2666, 431 U.S. 949, 53 L.Ed.2d 266. 156. Wills, trusts, and estates Whenever the question in any court, state or federal, is whether a title to land which had once been the property of the United States has passed, that question must be resolved by the laws of the Unit ed States; but whenever, according to those laws, the title shall have passed, then that property, like all other proper ty in the state, is subject to state legisla tion, so far as that legislation is consist ent with the admission that the title passed and vested according to the laws of the United States, and the state has an undoubted right to legislate as she may please in regard to the remedies to be prescribed in her courts, and to regulate the disposition of the property of her citizens by descent, devise, or alienation. Wilcox v. Jackson, 111.1839, 38 U.S. 498, 13 Pet. 498, 10 L.Ed. 264. Section 4. Republican Government Section 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect ^ch of them against Invasion; and on Application of the Legisla ture, or of the Executive (when the Legislature cannot be convened) *gamst domestic Violence, tv? LIBRARY REFERENCES fc^**** *nd Treatises Judicial power over political questions, see Wright, Miller & Cooper, Federal Practice and Procedure; Jurisdiction 2d § 3534 et seq. WESTLAW ELECTRONIC RESEARCH p ^ee WESTLAW guide following the Explanation pages of this volume. 537 5a I AMENDMENT X—RESERVED POWERS TO STATES The powers not delegated to the United States by the Constitution^ nor prohibited by it to the States, are reserved to the States re sp ec t tively, or to the people. HISTORICAL NOTES Proposal and Ratification The first ten amendments to the Con stitution were proposed to the Legisla tures of the several States by the First Congress on September 25, 1789, and were ratified on December 15, 179L-;' For the States which ratified these*" amendments, and the dates of ification, see Historical notes und« Amendment 1. LIBRARY REFERENCES Administrative Law Minority business set asides, localities, see West’s Federal Practice Manual §§ 16555, 16556A. Law Reviews Adjudication of federal causes of action in state court. Martin H. Redish and John E. Muench, 75 Mich.L.Rev. 311 (1976). Making war: The president and congress. Graham T. Allison, 40 Law & Contemp.Prob. (3) 86 (1976). San Jose revisited: A proposal for negotiated modification of public sector bargaining agreements rejected under Chapter 9 of the Bankruptcy Code. Barry Winograd, 37 Hast.LJ. 231 (1985). The doctrine of conditional preemption and other limitations on tenth amend ment restrictions. Ronald D. Rotunda, 132 Pa.L.Rev. 289 (1984). The scope of national power vis-a-vis the states: The dispensability of judicial review. Jesse H. Choper, 86 Yale LJ. 1552 (1977). WESTLAW ELECTRONIC RESEARCH WESTLAW supplements U.S.C.A. electronically and is useful for additional research. Enter a citation in INSTA-CITE for display of parallel citations and case history. Enter a cor. stitution, statute or rule citation in a case law database for cases of interest. Example query for INSTA-CITE: 790 F.2d 978 Example query for United States Constitution: (first +6 amendment) + s religion Example query for statute: "42 U.S.C.*" 4-4 1983 Also, see the WESTLAW guide following the Explanation pages of this volume. 280 6a