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

    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