League of United Latin American Citizens (LULAC) v. Attorney General of Texas Petition for a Writ of Certiorari

    No.

I n  T h e

S u p r e m e  C o u r t  o f  tije H m t e b  iM a te #
O c t o b e r  T e r m , 1993

League of United Latin American Citizens, Houston 
Lawyers’ Association, Jesse Oliver, et al,

Petitioners,
v.

Attorney General of Texas, et al,
Respondents.

On Petition for a Writ of Certiorari to the 
United States Court of Appeals 

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

E laine R. J ones 
Director-Counsel 

Theodore M. Shaw 
Norman J. Chachkin 

*Charles Stephen Ralston 
Gailon W. McGowen, J r . 
NAACP Legal Defense  & 

E ducational F und, Inc.
99 Hudson Street 
Sixteenth Floor 
New York, N.Y. 10013 
(212) 219-1900

Sherrilyn A. Ifill 
University of Maryland 
School of Law 
500 W. Baltimore 
Baltimore, MD 21201 
(410) 706-8391

E. Brice Cunningham 
777 S. R.L. Thornton Frwy. 
Suite 121 
Dallas, TX 75203 
(214) 428-3793

Gabrielle K. McDonald 
Walker & Satterthwaite 
7800 N. Mopac 
Suite 215
Austin, Texas 78759 
(512) 346-6801

William L. Garrett 
Brenda Hull Thompson 

8300 Douglas, Suite 800 
Dallas, TX 75225 
(214) 369-1952

Rolando L. Rios 
Milam Building, Suite 1024 
115 E. Travis Street 
San Antonio, TX 78205 
(512) 222-2102

Edward B. Cloutman, III 
Mullinax, Wells, Baab 
& Cloutman, P.C.
3301 Elm St.
Dallas, TX 75226 
(214) 939-9222

*Counsel of Record
Attorneys for Petitioners

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203



1

QUESTIONS PRESENTED

1. In cases brought under Section 2 of the Voting 
Rights Act of 1965 involving judicial elections, is a court 
of appeals authorized to depart from the analytical 
framework established by this Court’s authoritative 
construction of the statute in Thornburg v. Gingles, 478 
U.S. 30 (1986) and applied to the case at bar in Houston
Lawyers’ Association v. Attorney General, 501 U.S.___, 115
L.Ed. 2d 379 (1991)?

2. Should the Court grant certiorari to resolve a 
conflict between the ruling below and the decision of the 
Eleventh Circuit in Nipper v. Smith, 1 F.3d 1171 (1993) as 
to the appropriate tests for determining vote dilution and 
for measuring minority-candidate electoral success in 
judicial elections cases?

3. Was the Fifth Circuit’s refusal to remand this case 
to the district court for a hearing on a proposed 
settlement agreed to by the plaintiffs and the Governor, 
Lieutenant Governor, Secretary of State, Attorney 
General, and Legislature of the State of Texas, because of 
the opposition to the settlement by another state official 
defendant and by two intervenor-defendants, such a 
departure from the accepted and usual course of judicial 
proceedings as to warrant the exercise of this Court’s 
power of supervision?

4. Did the Court below fail to execute the mandate 
of this Court in Houston Lawyers’ Association v. Attorney 
General when it refused to remand the case to the district 
court for an initial determination of whether Texas had a 
substantial interest in maintaining an at-large system of 
electing trial court judges?



11

PARTIES

The participants in the proceedings below were:
League of United Latin American Citizens (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, Plaintiffs;

The Houston Lawyers’ Association, Weldon Berry, 
Alice Bonner, Rev. William Lawson, Bennie McGinty, 
Deloyd Parker, Francis Williams, Plaintiff-Intervenors;

Jesse Oliver, Fred Tinsley and Joan Winn White, 
Plaintiff-Intervenors;

Dan Morales, in his capacity as Attorney General of 
the State of Texas; John Hannah, in his capacity as 
Secretary of State of Texas; Thomas R. Phillips, Mike 
McCormick, Pat McDowell, Thomas J. Stovall, B. B. 
Schraub, Leslie Murray, Darrell Hester, William E. 
Moody, Weldon Kirk, Jeff Ealker, Ray D. Anderson, Joe 
Spurlock II, and Leonard E. Davis, in their capacities as 
members of the Texas Judicial Districts Board; 
Defendants;

Judge Sharolyn Wood and Judge Harold Entz, 
Defendant-Intervenors.



I l l

TABLE OF CONTENTS

QUESTIONS PRESENTED..........................................  i

PARTIES .........................................................................  ii

TABLE OF AUTHORITIES ........................................  vi

OPINIONS BELOW ......................................................  2

JURISDICTION .............................................................  2

STATUTE INVOLVED.................................................. 2

STATEMENT OF THE C A S E ......................................  3

The Proceedings Below........................................  3

1. The District Court’s Decision After
Trial ...............................................  4

2. The First Series o f Fifth Circuit
Rulings............................................. 5

3. This Court’s Prior Decision In This
Case ...............................................  6

4. The Second Series o f Fifth Circuit
R u lin g ............................................. 6

5. The Decision Below ............................  7

Statement of F a c ts ...............................................  9

REASONS FOR GRANTING THE W R IT ................. 12

I. The Fifth Circuit’s Decision Conflicts 
With This Court’s Clear Holdings in 
Thornburg v. Gingles and HLA v.
A ttorney General of Texas ..........................  12



IV

II. The Fifth Circuit's Ruling Conflicts 
With the Decision of the Eleventh 
Circuit in Nipper v. Smith As to the 
Appropriate Test for Determining Vote 
Dilution in Judicial Elections Cases . . . .  19

III. The Court of Appeals’ Holding That The
Defendant Officials of the State of Texas 
Could Not Enter Into a Proposed 
Settlement of this Case Presents An 
Important issue That Should Be Resolved 
by This Co u r t .................................................... 22

IV. The Fifth Circuit Failed To Adhere To 
This Court’s Mandate When It Did Not 
Remand The Case To The District Court 
For a Determination of The Factual 
Issue of The Weight To Be Given To the 
State’s Interest In At-Large Election of
Trial Court Judges...........................................25

CONCLUSION ...............................................................  27



V

TABLE OF AUTHORITIES

Cases: Pages:

Burns v. Richardson, 384 U.S. 73 (1966) .....................  16

Evans v. Jeff D., 475 U.S. 717 (1986)............................  22

Ex Parte Young, 209 U.S. 123 (1908)............................  24

Houston Lawyers Association v. Attorney General of 
Texas, 501 U. S .__ ,

115 L.Ed. 2d 379 (1991) .................................passim

Local Number 93, International Ass’n of Firefighters v.
Cleveland, 478 U.S. 501 (1 9 8 6 )..........................  23

LULAC v. Clements, 914 F.2d 620 (5th Cir. 1990)----- 2

Marek v. Chesny, 473 U.S. 1 (1985)............................... 23

Nipper v. Smith, 1 F.3d 1171 (11th Cir. 1993) . . 19-21, 26

Nipper v. U-Haul Co., 516 S. W. 2d 467, 470 (Tex. Civ.
App. 1974)......................................................  10, 27

Rogers v. Lodge, 458 U.S. 613 (1982) ..........................  16

Rufo v. Inmates of Suffolk Jail, 502 U .S .__ , 116 L.Ed.2d
867 (1992) .............................................................  23

Thornburg v. Gingles, 478 U. S. 30 (1986)............passim

Whitcomb v. Chavis, 403 U.S. 124 (1971).....................  16

White v. Regester, 412 U.S. 755 (1 9 7 3 ).......................  16

Wise v. Lipscomb, 437 U.S. 535 (1978) ........................ 23

Zimmer v. McKeithen, 485 F.2d 1297

(5th Cir. 1973) 13, 16



Pages:

Statutes: Pages:

28 U.S.C. § 1254(1)................................................................2

42 U.S.C. 1973b............................................................. .. . 3

42 U.S.C. § 1973 .................................................................. 2

Section 2 of the Voting Rights Act, as amended . . passim

Section 4 of the Voting Rights Act, as am ended............3

Tex. Civ. Prac. & Rem. Code, Ch. 1 5 ..........................  10
Tex. Const., Art. 5, §7 ...............................................  9, 10

Tex. Const, Art. 5, §8 .........................................................9

Tex. Const., Art. 5, § 28 ....................................................  10

Tex. Elec. Code §2.001....................................................  10

Tex. Elec. Code §172.003 ...............................................  10

Tex. Govt. Code §24.101.......................................................9

Tex. Govt. Code §24.174........................................................ 9
Tex. Govt. Code, §24.001 ...............................................  10

Other Authorities: Pages:

1982 U. S. Code Cong. & Admin. News 177 ................... 4

McDuff, Judicial Elections and the Voting Rights Act, 38
LOY. L. REV. 931 (1993)...................................... 27

Senate Report, No 97-417, 97th Congress 2d Sess. 4, 14, 16

vi



No. 93-

In The

Suprem e C o u rt of tfje fHntteb S ta te s
October Term, 1993

League of United Latin American Citizens, the 
Houston Lawyers’ Association, Jesse Oliver, et a l ,

Petitioners,

v.

Attorney General of the State of Texas, et al.,
Respondents.

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

Petitioners, League of United Latin American Citizens 
(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, Al Price, 
Theodore M. Hogrobrooks, Ernest M. Deckard, Judge Mary 
Ellen Hicks, Rev. James Thomas, The Houston Lawyers’ 
Association (HLA), Weldon Berry, Alice Bonner, Rev. 
William Lawson, Bennie McGinty, Deloyd Parker, Francis 
Williams, Jesse Oliver, Fred Tinsley and Joan Winn White, 
respectfully pray that a writ of certiorari issue to review the 
judgment and opinion of the Court of Appeals for the Fifth 
Circuit entered in this proceeding August 23, 1993.



2

OPINIONS BELOW

The opinion of the Fifth Circuit en banc is reported at 
999 F.2d 831, and is set out at pp. la-202a of the Appendix 
hereto ("App."). The panel decision rendered after the 
remand of the case from this Court is reported at 986 F.2d 
728 and is set out at App. at 203a-486a. The opinion of the 
United States District Court for the Western District of 
Texas is not reported and is set out at App. at 487a-549a, 
except for statistical tables that are an appendix to the 
district court’s opinion. Copies of those tables have been 
filed under separate cover with the Clerk of the Court.

JURISDICTION
The decision of the Fifth Circuit was entered on August 

23, 1993. Jurisdiction of this Court is invoked under 28 
U.S.C. § 1254(1).

STATUTE INVOLVED

This case involves Section 2 of the Voting Rights Act, 
as amended, 42 U.S.C. § 1973, which provides in pertinent 
part:

(a) No voting qualification or prerequisite to voting or 
standard, practice or procedure shall be imposed or 
applied by a State or political subdivision in a manner 
which results in a denial or abridgment of the right of 
any citizen of the United States to vote on account of 
race or color . . .
(b) A violation of subsection (a) of this section is 
established if, based upon the totality of circumstances, 
it is shown that the political processes leading to 
nomination or election in the political subdivision are 
not equally open to participation by members of a class 
of citizens protected by subsection (a) of this section in 
that its members have less opportunity to participate in



3

the political process and 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.
This case also involves Section 4 of the Voting Rights 

Act, as amended, 42 U.S.C. 1973b, which provides in 
pertinent part:

(f)(2) No voting qualification or prerequisite to voting, 
or standard, practice, or procedure shall be imposed or 
applied by any State or political subdivision to deny or 
abridge the right of any citizen of the United States to 
vote because he is a member of a language minority 
group.

STATEMENT OF THE CASE 

The Proceedings Below
This is a voting rights case brought by African American 

and Hispanic citizens and organizations within the state of 
Texas, challenging under the Voting Rights Act, 42 U.S.C. 
§ 1973 et seq., the county-wide election of state district 
judges in nine metropolitan counties (Harris, Dallas, Bexar, 
Tarrant, Travis, Lubbock, Midland, Ector and Jefferson) in 
Texas. Suit was filed on July 11, 1988, in the U. S. District 
Court for the Western District of Texas against various state 
officials in their official capacities as surrogates for the real 
party in interest, the State of Texas.



4

1. The District Court’s Decision After Trial

On November 9, 1989, the district court found a 
violation of the Voting Rights Act in all challenged counties. 
(App. at 487a-549a). The district court entered findings of 
fact, favorable to the plaintiffs, for each county on the three 
threshold factors identified by this Court in Thornburg v. 
Gingles, 478 U. S. 30 (1986):

•  the minority group was sufficiently concentrated 
so as to constitute a voting age majority in a 
single member district, (App. at 497a-501a), and

•  the minority group voted cohesively (App. at 
501a-533a), and

•  a white voting bloc usually defeated the choice 
of the minority voters. (App. at 501a-533a)

As required, the district court made findings regarding 
the "typical factors" indicating the existence of vote dilution, 
(App. at 533a-538a) as discussed in the Senate Report, No 
97-417, 97th Congress 2d Sess., reprinted in 1982 U. S. Code 
Cong. & Admin. News at pp. 177 et seq., that is a part of the 
legislative histoiy of the 1982 amendments to the Voting 
Rights Act.1

The trial court found that there was a history of 
discrimination that touched upon minority access to the 
political system (App. at 533a-534a); that there was a 
numbered post system that enhanced the discriminatory 
effect of at-large voting (App. at 534a-535a); that five of the 
nine counties were so large as to enhance the difficulty of 
minority candidates running at large, (App. at 534a-535a);

'This Court has characterized the Senate Report as an 
"authoritative source" for interpreting amended Section 2. 
Thornburg v. Gingles, 478 U.S. 30, 43 n.7. (1986).



5

and that there had been racial appeals in two recent races in 
Dallas County. (App. at 535a). In addition, the court found 
that there was a persistent lack of electoral success of 
minority candidates for judicial offices. (App. at 536a-537a). 
Plaintiffs did not raise the issue of lack of responsiveness of 
elected officials.

Plaintiffs charged that the reasons for the use of at- 
large elections were tenuous. Although the court found that 
the reasons offered by the State of Texas for the 
maintenance of the at-large system of elections were not 
pretextual, they also were not compelling. (App. at 537a- 
538a).

Finally, based upon the "totality of the circumstances," 
the trial court found that minority voting strength was 
diluted in each of the targeted counties. (App. at 545a- 
546a).

2. The First Series of Fifth Circuit Rulings
Defendants and Defendant-Intervenors appealed to the 

United States Court of Appeals for the Fifth Circuit. On 
May 11, 1990, that court reversed the district court, holding 
2-1 that trial judges elected at large in multi-member 
districts nevertheless occupy single-member offices that are 
incapable of being further sub-divided and to which Section 
2 principles have no application. 902 F. 2d 293 (5th Cir. 
1990). Four days later, pursuant to a majority vote of the 
active judges sua sponte, a rehearing en banc was ordered, 
902 F. 2d 322, and on September 28,1990, the en banc court 
reversed the trial court in a severely split opinion. 914 F. 2d 
620 (5th Cir. 1990).

The majority opinion held that the amended Section 2 
of the Voting Rights Act, which incorporates a "results test," 
does not apply to judicial elections, regardless of how 
discriminatory the system may be.



6

3. This Court's Prior Decision In This Case
This Court granted certiorari, 498 U.S. 1060 (1991), and 

reversed, holding that the Voting Rights Act does apply to 
state judicial election systems. The case was remanded for 
further proceedings consistent with this Court’s opinion. 
Houston Lawyers Association v. Attorney General o f Texas, 
501 U. S .__ , 115 L.Ed. 2d 379 (1991).

4. The Second Series o f Fifth Circuit Rulings

Upon return of the case to the Fifth Circuit, plaintiffs 
moved to remand the case to the District Court for further 
fact finding in light of this Court’s decision. Instead, the 
court ordered further argument and the original panel 
affirmed the district court opinion in eight of the nine 
challenged counties. LULAC v. Clements, 986 F. 2d 728 (5th 
Cir. 1993)(App. at 203a-486a). Within a few days, sua 
sponte, the Fifth Circuit voted to hear the case en banc. 986 
F. 2d 874 (5th Cir. 1993)(App. at 486a).

After the panel opinion was issued, the Attorney 
General and Secretary of State of Texas, named defendants 
in this action, joined by the Governor and Lieutenant 
Governor, and with the approval of a majority of the Texas 
House of Representatives and a majority of the state Senate, 
which voted as the Committee of the Whole, entered into a 
settlement agreement with all of the Plaintiffs and Plaintiff- 
Intervenors. Under the agreement, judicial elections in the 
nine counties would be held under a sub-districting plan, 
with some at-large elections retained in Dallas and Harris 
Counties. The settlement was not joined by Defendant- 
Intervenors Wood and Entz2, or by the Defendant members 
of the Texas Judicial Districts Board.

2 State district judges Wood and Entz had intervened in 
their personal capacities only.



7

A joint motion was filed by the plaintiffs and the state 
officials with the Fifth Circuit requesting that the case be 
remanded to the District Court for a hearing and findings on 
the proposed settlement. Chief Justice Phillips, in his 
capacity as chair of the Judicial Districts Board, and 
intervenor judges Wood and Entz opposed this motion.

On August 23,1993, the en banc court, 9-4, denied the 
request to remand, reversed the district court’s opinion, and 
held that there was no violation of the Voting Rights Act in 
any of the nine targeted counties. 999 F.2d 831 (5th Cir. 
1993)(App. at la-202a).

5. The Decision Below

The majority opinion held that:
a. Texas’ Governor, Lieutenant Governor, Secretary of 

State, and Attorney General, and a majority of its legislators 
in both houses, could not enter into a settlement of this 
litigation over the objection of one defendant (chair of the 
Texas State Judicial Districts Board), who had been sued in 
his official capacity only, and of two defendant-intervenors 
who entered the case in their personal capacities only.3 In 
addition, according to the majority, once certain "legal 
errors" of the district court were corrected, there was 
nothing to settle. (App. at 10a-25a.)

b. Plaintiffs failed to establish the threshold factor of 
"racial bloc voting" in this case because only one major party 
nominated minority-race candidates supported by minority

3 Under the settlement agreement, the judicial positions 
occupied by Defendant-intervenors Wood and Entz would 
continue to be elected county-wide as they were before the suit 
was brought. See supra note 2 (Wood and Entz intervened in 
personal capacities only).



8

voters. Although white voters refused to support minority- 
race candidates favored by minority voters — and only voted 
for minority-race candidates who lacked support from 
minority voters — this pattern was thus the result of partisan 
politics and not racial bloc voting, which the court defined 
as a voting pattern caused by a "built-in bias" among white 
voters. (App. at 38a-39a.)

c. The extremely low rate of electoral success by 
minority candidates for judicial office in the nine challenged 
counties was not probative of discrimination, whatever the 
minority population in these counties, because of the 
assertedly small number of minority lawyers in these 
jurisdictions. (App. at 62a-64a.)

d. Notwithstanding the undisputed existence of 
pervasive discrimination in the past and no matter how small 
the electoral success of minority candidates may be, in order 
to establish a violation of Section 2 plaintiffs must prove that 
the continuing effects of that discrimination currently 
prevent racial minority citizens from fielding candidates and 
running campaigns. (App. at 64a-68a).

e. The extent of the state’s interest in maintaining at- 
large judicial elections is a question of law as to which an 
appellate court may make a de novo determination (App. at 
74a-76a); instead of being considered as but one of many 
factors in determining whether there has been vote dilution, 
the state’s alleged interest in having the electoral district and 
territorial jurisdiction of its district judges coterminous is so 
weighty that a Section 2 violation can be found only upon a 
very substantial showing of vote dilution (App. at 69a).

There were three dissenting opinions. Chief Judge 
Politz (App. at 130a-134a), asserted that since the real party 
in interest in this matter is the State of Texas, the Attorney 
General had the authority to settle on behalf of the state, 
despite the opposition of some elected state officials. (App.



9

at 132a). Judge Wiener, both concurring with Judge Politz 
and writing separately, maintained that the case should have 
been remanded for consideration of the settlement 
agreement. (App. at 202a).

The opinion by Judge King also favored a remand for 
a hearing on the proposed settlement. (App. at 135a- 
202a.)4 In addition, this dissent asserted that the majority 
opinion rewrote the law as declared by this Court in 
requiring plaintiffs to negate partisan politics as a possible 
explanation for minority candidates’ defeat at the polls, and 
essentially required plaintiffs to prove racial animus in the 
electorate in order to meet that burden. (App. at 137a- 
138a).

Statement of Facts
Texas district courts are the state’s trial courts of 

general jurisdiction. Texas Const., Art. 5, §8. District courts 
are created by statute, Tex Govt. Code §24.101 ff. Each 
court, or judicial district, at issue in this case encompasses 
an entire county, with the exception of the 72nd Judicial 
District, which covers two counties. Tex Govt. Code 
§24.174.5

Elections for judges are staggered, and are held every 
four years for each of the courts on a county-wide basis in

4Judge King’s dissent incorporates by reference (App. at 
136a, n.l) her decision for the panel majority. See App. at 
203a-375a.

5 Art. 5, §7a(i) of the Texas Constitution requires that 
judicial districts be no smaller than a county unless authorized 
by a majority of the voters in the county. To date, this 
mechanism has not been utilized.



10

partisan elections. Each candidate must file for a specific 
court, or numbered post. Party primaries have a majority- 
vote requirement, Tex Elec. Code §172.003, but in the 
general election, a plurality of the votes determines the 
winner. Tex Elec. Code §2.001. Vacancies are filled by 
gubernatorial appointment, Tex Const., Art. 5, §28.

Qualifications for office are set by the state constitution, 
Tex Const, Art. 5, §7, and by statute, Tex Govt Code, 
§24.001 ff.

Although a district judge usually sits in the county from 
which he/she is elected, the jurisdiction of every district 
court is statewide. Nipper v. U-Haul Co., 516 S. W. 2d 467, 
470 (Tex. Civ. App. 1974). Venue, on the other hand, is 
governed by a complex set of statutes. Tex Civ. Prac. & 
Rem. Code, Ch. 15.

Minority electoral success for judicial offices has been 
minimal. A review of the targeted counties reveals the 
following:

County No. of No. of Total Percent
Judges Minority

Judges
Pop. Minority6

Harris 59 3 (5%) 2,409,544 19.7%

Dallas 37 2 (5%) 1,556,549 18.5%

Tarrant 23 2 (9%) 860,880 11.8%

Bexar 19 5 (26%) 988,800 46.6%

‘"No. of Minority Judges" and "Percent Minority" here refer 
only to the ethnic or racial group, Le., African Americans or 
Hispanics, on whose behalf a case was presented to the district 
court for the particular county.



11

County No. of No. of Total Percent
Judges Minority

Judges
Pop. Minority

Travis 13 0 (0%) 419,335 17.2%

Jefferson 8 0 (0%) 250,938 28.2%

Lubbock 6 0 (0%) 211,651 27.1%

Ector 4 0 (0%) 115,374 25.9%

Midland 3 0 (0%) 82,636 23.5%

Perhaps more revealing of the lack of minority access is 
the fact that in Harris County only two Blacks had defeated 
whites in seventeen contested judicial elections. In Dallas 
County, no Black candidate supported by Black voters won. 
Bexar County results revealed that only one Hispanic had 
been victorious over a white in six contests. In the other 
targeted counties, no minority had ever won. In Jefferson, 
Lubbock, Ector and Midland counties, no minority had ever 
run. (App. at 501a-533a).



12

REASONS FOR GRANTING THE WRIT

I.
The Fifth Circuit’s Decision Conflicts With This 
Court’s Clear Holdings in Thornburg v. Gingles 

and HLA v  A ttorney General of Texas

The Fifth Circuit’s decision in this case nullifies the 
plain holding of this Court in Houston Lawyers’ Association 
v. Attorney General o f Texas1 (HLA): there is no single­
person office exception that excludes elections for trial 
judges from Section 2 coverage. Having abandoned its 
argument that single person offices such as trial judges are 
statutorily exempted from Section 2, the Fifth Circuit instead 
creates a new test for determining vote dilution in judicial 
elections cases that functionally exempts those offices from 
Section 2 coverage. This new test for vote dilution has 
several distinctive features that conflict with this Court’s 
opinions in HLA and Thornburg v. Gingles, 478 U.S. 30 
(1986).

First, the Fifth Circuit’s more stringent vote dilution 
test imposes a higher standard of proof on plaintiffs in 
proving that at-large elections violate Section 2. Second, the 
Fifth Circuit holds that the weight to be afforded the state’s 
interest in the dilution analysis is a matter of law, not an 
issue of fact. Both these holdings contradict this Court’s 
clear elaboration of the results test set out in Thornburg v. 
Gingles, and this Court’s decision in HLA, that the "results" 
test (as explicated in Gingles) is applicable to cases 
challenging judicial elections.

The results test for assessing vote dilution claims was 
established by Congress in the Senate Report that

7501 U.S. ., 115L.Ed. 2d 379 (1991).



13

accompanied the 1982 amendments to Section 2.8 In the 
Senate Report, Congress describes the proof required for 
plaintiffs to establish a violation of Section 2, and 
enumerates a list of factors which, if proven by plaintiffs, 
typically indicate the existence of racial vote dilution,9 * 2 3 4 5 6 7

8See supra note 1.

9The Senate Report factors are a modified version of the 
factors set out by the Fifth Circuit in Zimmer v. McKeilhen, 485 
F.2d 1297, 1305 (5th Cir. 1973).

The typical factors identified by Congress include:
"1. the extent of any history of official discrimination in 
the state or political subdivision that touched the right of 
the members of the minority group to register, to vote, or 
otherwise to participate in the democratic process;
2. the extent to which voting in the elections of the state 
or political subdivision is racially polarized;
3. the extent to which the state or political subdivision 
has used unusually large election districts, majority vote 
requirements, anti-single shot provisions, or other voting 
practices or procedures that may enhance the opportunity 
for discrimination against the minority group;
4. if there is a candidate slating process, whether the 
members of the minority group have been denied access 
to that process;
5. the extent to which members of the minority group in 
the state or political subdivision bear the effects of 
discrimination in such areas as education, employment and 
health, which hinder their ability to participate effectively 
in the political process;
6. whether political campaigns have been characterized by 
overt or subtle racial appeals;
7. the extent to which members of the minority group 
have been elected to public office in the jurisdiction." 
"Additional factors that in some cases have had probative



14

This Court in Thornburg v. Gingles, supra, adopted 
the standards identified by Congress for assessing Section 
2 vote dilution claims. In particular, the Gingles defines 
the plaintiffs’ burden of proof in Section 2 challenges to 
multimember or at-large elections: Plaintiffs must first 
prove the existence of three threshold matters: (1) that 
the minority group is sufficiently numerous and 
geographically compact to constitute a majority of a fairly 
drawn single-member district; (2) that the minority group 
is politically cohesive and (3) that the white majority votes 
sufficiently as a bloc to enable it to defeat the candidates 
of choice of minority voters, absent special circumstances. 
478 U.S. 50-51. Once plaintiffs have made this showing, 
Gingles explains, minority plaintiffs may provide evidence 
of any of the nine Senate Report Factors, which tend to 
prove the existence of racial vote dilution. Proof of these 
factors is "supportive of, but not essential to, a minority 
voter’s claim." 478 U.S. at 48-49, n.15 (emphasis in 
original). Moreover, failure "to establish any particular 
factor, is not rebuttal evidence of non-dilution." S. Rep. 
at 29 n.118.

The Gingles standard applies to claims challenging the 
at-large election of trial court judges. In HLA, supra, this

value as part of plaintiffs’ evidence to establish a violation 
include:

"whether there is a significant lack of responsiveness on 
the part of elected officials to the particularized needs of 
the members of the minority group.
"whether the policy underlying the state or political 
subdivision’s use of such voting qualification, 
prerequisite to voting, or standard, practice or 
procedure is tenuous."

S. Rep. No. 97-417, 97th Cong., 2nd Sess. (1982) at 28-29.



15

Court unequivocally held that the election of trial court 
judges is covered by Section 2 of the Voting Rights Act of 
1965, as amended, and that the "results" test is the 
appropriate test for determining claims challenging 
judicial elections under Section 2. 115 L.Ed. 2d at 388.

The court below refused to apply Gingles to the 
judicial elections at issue in this case. Instead, in 
reviewing the district court’s finding of vote dilution in 
judicial elections in Texas, the Fifth Circuit fashioned a 
new vote dilution analysis for judicial elections in which 
the "state’s interest" in continuing to use at-large elections 
is balanced against plaintiffs’ proof of vote dilution. App. 
at 85a-86a. Under this analysis, the plaintiffs’ burden is 
to prove that the existing racial vote dilution in the 
jurisdiction is "substantial enough to override the state’s 
. . . interest." App. at 86a. This standard is directly at 
odds with this Court’s description of the plaintiffs’ 
burden of proof in Gingles and with the statutory 
requirements enacted by Congress.

This Court has never accorded the state’s interest 
primary or controlling weight among the various factors 
to be considered by courts in assessing vote dilution 
claims under Section 2. Indeed, only two years ago in 
HLA, this Court instructed the appellate court on remand 
that the state’s interest "is merely one factor to be 
considered in evaluating the ‘totality of circumstances.’" 
115 L.Ed. 2d at 387 (emphasis added). Rather than 
follow this Court’s clear instructions as to the role of the 
state’s interest, the court below decided that the state’s 
interest is a primary or outcome-determinative factor in 
a Section 2 case. App. at 85a-86a.

According controlling weight to any one factor in the 
dilution analysis, and to the "state’s interest" in



16

maintaining the use of at-large elections in particular, is 
at odds with Gingles' admonition that no specific factor or 
group of factors must be proved in order for plaintiffs’ to 
prevail,10 478 U.S. at 49 n.15, and with this Court’s 
acknowledgment that at-large elections, while not per se 
violative of the Act, tend to minimize or cancel out 
minority voting strength. See 478 U.S. at 47-48, citing 
Rogers v. Lodge, 458 U.S. 613, 617 (1982); White v. 
Regester, 412 U.S. 755, 765 (1973); Whitcomb v. Chavis, 
403 U.S. 124, 143 (1971); and Bums v. Richardson, 384 
U.S. 73, 88 (1966). In essence, the Fifth Circuit has 
transformed the ninth Senate Report factor — "whether 
the policy underlying the state or political subdivision’s 
use of [the challenged voting practice] is tenuous" — into 
an immunizing shield for States.11 In HLA, this Court 
acknowledged that "[a] State’s justification for its electoral 
system is a proper factor for the courts to assess in a 
racial vote dilution inquiry." 115 L.Ed. 2d at 387. But in 
rejecting the notion that single-person offices were exempt

10While proof of the existence of the Senate Report factors 
are not essential to a minority voters’ claim, 478 U.S. at 49 
n.15, this Court has held that the three Gingles preconditions 
must be established to prove that a multimember district 
impairs minority voting strength. 478 U.S. at 50.

“The elevation of the "state’s interest" factor in the dilution 
analysis is particularly unwarranted because this factor, along 
"with whether elected officials are responsive to the needs of 
minorities," was reduced by Congress from among the primary 
factors listed to an optional part of the plaintiffs’ case. See S. 
Rep. at 29. Prior to Congress’ amendment of the statute, "the 
state’s interest" and the "responsiveness" factors were listed 
equally among the other Zimmer factors. Compare Zimmer, 
485 F.2d at 1305, with S. Rep. at 28-29.



17

from Section 2, this Court specifically cautioned against 
giving the state’s interest controlling weight in the 
analysis.12

In fact, this Court in Gingles decided that the two 
Senate Report factors which are most probative of racial 
vote dilution are proof of racially polarized voting and the 
extent to which minority voters are able to elect their 
candidates of choice. 478 U.S. at 48-49 n.15. The Fifth 
Circuit rejected this Court’s directions and instead 
instructed that "proof of racial appeals in elections, non­
responsiveness of elected officials to minority voters and 
persistent lack of electoral success by minority candidates 
are most important." App. at 86a.

Finally, the Fifth Circuit’s holding that the weight of 
the State’s interests in using at-large elections "is a 
question of law for this court to determine de novo and 
not a question of fact" (App. at 76a), runs squarely 
counter to this Court’s holdings in Gingles that "the

12This Court also rejected the notion that the multiple trial 
judges elected from the counties at issue in this lawsuit are, in 
fact, single-person offices. Instead this Court described the 
system of electing district judges as the archetypal at-large, 
numbered-post election system. Each of the district judges at 
issue in this suit is

elected by the voters in the district in which he or she sits 
pursuant to an at-large, district-wide electoral scheme . . . .  
Although several judicial candidates in the same district 
may be running in the same election, each runs for a 
separately numbered position. Thus, for example, if there 
are 25 vacancies in the Harris County district in a 
particular year, there are 25 district-wide races for 25 
separately numbered positions.

HLA, 115 L.Ed. 2d at 384.



18

ultimate finding of vote dilution" is a question of fact, 
subject upon review to the clearly erroneous test, 478 U.S. 
at 79, and that the "subsidiary issues" to a finding of vote 
dilution are also subject to the clearly erroneous standard. 
478 U.S. at 78.

The district court in this case followed the Gingles 
analysis in reaching its conclusion that the judicial 
elections at issue violate Section 2. In its 94-page 
opinion, the district court engaged in a fact-intensive 
"‘searching practical evaluation’" of the political reality 
facing minority voters in the nine counties at issue. 
Gingles, 478 U.S. at 79. Its conclusion that the countywide 
election system for district judges dilutes the voting 
strength of African American and Hispanic voters13 was 
based on the plaintiffs’ proof of the three Gingles 
threshold factors, and proof of several of the Senate 
Report factors. The Court of Appeals ignored the 
findings of the district court, yet never asserted that those 
findings were clearly erroneous. Instead, the Court of 
Appeals made its own factual findings with regard to the 
State’s interest and declared that these were matters of 
law to be determined de novo by the appellate court. This 
approach to review of vote dilution cases conflicts with 
this Court’s admonition in Gingles that appellate courts 
must defer to the "trial court’s particular familiarity with 
the indigenous political reality," 478 U.S. at 79, and 
warrants review of the decision below.

13The district court’s findings as to the existence of vote 
dilution in Harris and Dallas counties was limited to African 
Americans, as no claim on behalf of Hispanic voters was 
advanced by the plaintiffs in those two counties.



19

II.
The Fifth Circuit’s Ruling Conflicts With 

the Decision of the Eleventh Circuit in 
Nipper v  Smith as to the Appropriate 

Test for Determining Vote Dilution in 
Judicial Elections Cases

In the recent case of Nipper v. Smith, 1 F.3d 1171 
(11th Cir. 1993), the Eleventh Circuit held that injudicial 
election cases, races in which only white candidates ran 
are not properly considered in determining whether racial 
bloc voting exists if racially polarized voting is shown to 
occur in contests involving minority candidates supported 
by minority voters; and further held that in assessing 
minority candidates’ electoral success in judicial elections, 
the number of minority voters, not the number of minority 
attorneys in the jurisdiction, is the relevant statistical 
benchmark. The ruling below conflicts with the Eleventh 
Circuit’s decision in Nipper on both points and the conflict 
demands resolution by this Court.

In its opinion the Eleventh Circuit holds that a 
proper analysis of racially polarized voting should not rely 
"primarily on elections involving only white candidates." 
1 F.3d at 1179-80. Thus, that court said, "a consistent 
showing of polarization involving black and white 
candidates cannot be rebutted by evidence that black 
voters’ candidates of choice sometimes win when only 
white candidates are running." Id. at 1180. When such a 
showing has been made, it is error to find no racial bloc 
voting on the ground that "‘[wjhen judicial elections not 
involving black candidates are included in the analysis, the 
black candidate of choice for circuit or county judge wins 
the majority of the time’." Id.



20

The court below held, however, that voting was not 
racially polarized in the counties at issue in this case 
based on an analysis of election results, including 
primarily contests not including black candidates. For 
example, with respect to Harris County the Fifth Circuit 
discounted the district court’s findings of consistent 
polarization in elections involving black and white 
candidates, and of consistent lack of electoral success of 
black-preferred black judicial candidates. It found, 
instead, that black voters are able to elect their preferred 
candidates in 52.4% of the election contests, when 
elections not involving black candidates are included, 
App. at 99a, and made a finding that voting is not racially 
polarized based on this "willingness of white voters to 
support black Republican candidates" not preferred by the 
black voters, and the consistent success of black-preferred 
white or Hispanic judicial candidates. App. at 102a.

The approach flatly contradicts the more realistic 
appreciation of electoral realities of the Eleventh Circuit:

In sum, given the pervasive polarization in the 
elections involving black and white candidates, we 
hold that the district court erred in relying on 
elections involving only white candidates. Under 
these circumstances, evidence that black voters are 
sometimes able to elect candidates of choice in white 
only elections was an insufficient basis to find against 
appellants on the issue of racial polarization.

Nipper v. Smith, 1 F.3d at 1180.

The ruling below also conflicts with the Eleventh 
Circuit’s decision in Nipper as to the proper method for 
assessing minority electoral success in the challenged 
jurisdiction. The Eleventh Circuit in Nipper held that the



21

district court had erred in appraising minority electoral 
success in obtaining representation on the judiciary based 
on a comparison of the number of black judges to the low 
number of black attorneys eligible for judgeships. 
Instead, the Eleventh Circuit found that "the appropriate 
comparison is the percentage of black citizens or black 
voters, not the percentage of black lawyers." 1 F.3d at 
1181, n. 13.

The court below here, however, analyzed minority 
electoral success in the challenged counties in a manner 
that precisely mirrored the Nipper district court’s 
reasoning that was rejected by the Eleventh Circuit. The 
Fifth Circuit disregarded the district court’s findings in 
this case concerning, for example Texas’ historical 
discrimination against African Americans and Hispanics 
in education and employment, and its conclusion that the 
pool of eligible lawyers was small because of that 
discrimination. (App. 533a; 536a-537a.) Rather, the 
court of appeals concluded that minority electoral success 
should be assessed based on the number of eligible 
minority attorneys.14

14In making this comparison, the Fifth Circuit did not 
discuss the evidence regarding the number of eligible attorneys 
in each of the nine counties at issue, but instead made the 
blanket statement that ”[t]he cold reality is that few minority 
citizens can run for and be elected to judicial office." App. at 
63a. The court made no reference to the evidence in the 
record that in 1988 in Harris County, for example, there were 
over 500 African American attorneys were eligible to serve as 
district judges, and African American candidates ran in 17 
contested district judge general elections between 1980 and 
1988.



22

The conflicts between the Fifth and Eleventh Circuits 
concerning the method of establishing the Gingles 
threshold factor of racial bloc voting, and concerning the 
method of evaluating minority electoral success are of 
paramount significance, since most of the States in which 
litigation under the Voting Rights Act of 1965 has been 
brought are within these two federal judicial divisions. 
This Court should, accordingly, grant certiorari to resolve 
those conflicts.

III.
The Court of Appeals’ Holding That The 

Defendant Officials of the State of Texas 
Could not Enter Into a Proposed Settlement 

of this Case Presents An Important issue That 
Should Be Resolved by This Court

As set out supra in the Statement of the Case the 
plaintiffs and the official state defendants negotiated a 
proposed settlement of this litigation. The settlement was 
agreed to by the Attorney General of the State of Texas, 
a named defendant, in his capacity as counsel for the state 
officials, the Governor, Lieutenant Governor and 
Secretary of State, and was approved by majority votes of 
both houses of the legislature of Texas. The parties to 
the settlement filed a motion with the Fifth Circuit 
seeking a remand to the district court for a hearing at 
which any objections, including those of intervenors, could 
be heard. The Court of Appeals, however, refused to 
remand the case, but instead decided the merits of the 
case.

As this Court has repeatedly held, the settlement of 
cases is highly favored. See, e.g., Evans v. Jeff D., 475 U.S.



23

717, 732-33 (1986); Marek v. Chesny, 473 U.S. 1, 10 
(1985). Thus, an intervenor cannot stop the original 
parties from entering into a settlement of the claims 
between them. As Local Number 93, International A ss’n of 
Firefighters v. Cleveland, 478 U.S. 501, 528-29 (1986), held:

It has never been supposed that one party—whether 
an original party, a party that was joined later, or an 
intervenor—could preclude other parties from settling 
their own disputes and thereby withdrawing from 
litigation. Thus, while an intervenor is entitled to 
present evidence and have its objections heard at the 
hearing on whether to approve a consent decree, it 
does not have power to block the decree merely by 
withholding its consent.15

Moreover, it is clear that a public agency has the power 
to settle a case for relief that goes beyond that which the 
Constitution or laws might require. Rufo v. Inmates o f
Suffolk Jail, 502 U .S .__ , 116 L.Ed.2d 867, 889 (1992).
See also, Wise v. Lipscomb, 437 U.S. 535, 548 
(1978)(Powell, J. concurring).

The decision below conflicts with the principles of all 
of these cases. Moreover, it raises troubling questions 
concerning the appropriateness of a federal court’s 
overruling the decision of state officials to compromise 
litigation and substituting its judgment as to the best 
interests of a state. In the present case, the Attorney 
General, the Governor, the Lieutenant Governor, the 
Secretary of State, and a majority of both houses of the

15Here, the parties sought a remand so that the inteivenors 
and any one else could voice objections at a hearing before the 
district court.



24

Texas Legislature made clear their wish to compromise 
the action and to modify the method of election of state 
court judges. It is also clear that they had valid reasons 
to do so, in light of the decision of the district court, the 
holding of this Court in HLA v. Attorney General, and the 
resultant substantial possibility that there was a violation 
of the Voting Rights Act Nevertheless, the Court of 
Appeals overruled the considered judgment of those most 
suited to deciding the interests of the State of Texas on 
the most tenuous grounds.16

To petitioners’ knowledge, the decision below is an 
unprecedented departure from the accepted and usual 
course of judicial proceedings. Moreover, the Fifth 
Circuit’s approach could undermine the mutually 
acceptable settlement of hundreds of constitutional and 
statutory lawsuits. Therefore, the decision below calls for 
an exercise of this Court’s power of supervision over the 
lower federal courts.

16As the dissents below noted, there is a serious question 
whether any of the parties blocking the settlement had standing 
to do so. Justice Phillips was a nominal defendant, one of 
many joined in his official capacity in order to satisfy Ex Parte 
Young, 209 U.S. 123 (1908). Judges Entz and Wood were 
allowed to intervene in their individual capacities only in order 
to protect their interest in retaining the judicial offices they 
held. The proposed settlement would not affect the manner in 
which their offices were elected. The proposition that they 
could block, rather than simply voice objections to, a settlement 
entered into by state officials because they are voters raises the 
specter of any citizen being able to block any settlement 
desired by public officials.



25

IV.
The Fifth Circuit Failed To Adhere To This 
Court’s Mandate When It Did Not Remand 

The Case To The District Court For a 
Determination of The Factual Issue of 
The Weight To Be Given To the State’s 

Interest in At-Large Election of 
Trial Court Judges.

The court below held that the interest of the State of 
Texas in maintaining the present at-large electoral system 
must be weighed against proven vote dilution to assess 
whether such dilution creates Section 2 liability. The 
court further held that the substantiality of Texas’ interest 
under Section 2 is a question of law reviewable de novo, 
and not a question of fact. App. at 76a. In so holding, 
the Fifth Circuit failed to adhere to this Court’s express 
holding in Houston Lawyers Association that the state’s 
interest in the maintenance of the at-large system is one 
factor to be considered under the "totality o f the 
circumstances," and is therefore a question of fact to be 
determined by the trial court. The Fifth Circuit, 
therefore, erred by conducting a fact-finding expedition 
and failing to adhere to this Court’s mandate to remand 
this case to the district court in the first instance for a 
factual determination regarding the sufficiency of the 
state’s interest in "linkage" in the overall "totality of the 
circumstances" calculation.

As explicitly noted by this Court, the "State’s interest 
in maintaining an at-large, district-wide electoral scheme 
. . .  is merely one factor to be considered in evaluating the 
‘totality of the circumstances’ . . . ." HLA, 115 L.Ed. 2d 
at 387. As mentioned above, application of the "totality 
of the circumstances" tests requires a court to make



26

factual findings to determine whether minority voting 
strength is minimized or cancelled out. See Thornburg v. 
Gingles, 478 U.S. at 77-80. The appropriate fact finder in 
this case is the district court and not the court of appeals.

The Fifth Circuit relied principally on the proposition 
that Texas links the electoral and jurisdictional bases of 
trial court judges to hold that the state has a substantial 
interest in maintaining the present at-large electoral 
system. App. at 70a. However, at trial the state only 
perfunctorily touched on the linkage interest in two 
isolated references in the testimony of two witnesses, 
Chief Justice Thomas Phillips and Dr. Anthony 
Champagne, a political scientist.17 Since the state did 
not prove at the trial level that linkage is, in fact, a Texas 
state policy, or, indeed, that the electoral and 
jurisdictional bases are indeed linked,18 it was error for

17 Chief Justice Phillips testified: "in my opinion, the district 
judge should not be responsible to the voters over an area that 
is smaller than that area in which the district judge exercises 
primary jurisdiction." TR at 5-78 (emphasis added). Similar 
testimony was presented by Dr. Champagne. See TR. 4-141- 
144. At trial, the state offered three reasons to support its 
interest in using the challenged election system: "1) judges 
elected from smaller districts would be more susceptible to 
undue influence by organized crime; 2) changes in the current 
system would result in costly administrative changes for District 
Clerks’ offices; and 3) the system of specialized courts in some 
counties would disenfranchise all voters’ right to elect judges 
with jurisdiction over some matters." App. at 537a.

18In fact, as Judge King demonstrated in her dissent and in 
her opinion for the panel below, no such linkage exists, since 
it is clear that under Texas law trial court judges are elected 
from counties but have state-wide jurisdiction. Nipper v. U-



27

the Fifth Circuit to act as the trier of fact and determine 
that there is linkage of the electoral and jurisdictional 
bases for trial judges, and to determine that any such 
linkage provides the state with a substantial interest in 
maintaining the present at-large electoral system.

The en banc court states th a t"under the totality o f the 
circumstances,. . .  breaking the link between the electoral 
base and the jurisdiction . . . would perversely lessen 
minority influence on the conduct of most litigation." 
(App. at 78a)(Emphasis added.) The court simply creates 
this finding out of thin air, as no evidence was offered by 
the State of Texas below to prove that any purported 
linkage preserves minority influence.

In examining the en banc opinion, it is clear that the 
Fifth Circuit engaged in a fact finding mission, thereby 
committing error by failing to adhere to this Court’s 
mandate to remand this case in the first instance to the 
district court to develop a factual record to consider 
whether Texas indeed had any interest in "linkage" under 
the totality of the circumstances.

CONCLUSION

For the reasons stated above, this Court should grant 
the petition for a writ of certiorari to the United States 
Court of Appeals for the Fifth Circuit and reverse the 
decision below.

Haul Co., 516 S.W.2d 467, 470 (Tex. Civ. App. 1974). See, 
App. at 174a-176a; 269a-275a. See also, McDuff, Judicial 
Elections and the Voting Rights Act, 38 LOY. L. REV. 931, 956- 
57 (1993).



28

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw
Norman J. Chachkin 

♦Charles Stephen Ralston
Gailon W. McGowen, Jr .
NAACP Legal Defense & 

Educational Fund, Inc  
99 Hudson Street 
Sixteenth Floor 
New York, N.Y. 10013 
(212) 219-1900

Sherrilyn A. Ifill 
University of Maryland 
School of Law 
500 W. Baltimore 
Baltimore, MD 21201 
(410) 706-8391

E. Brice Cunningham 
777 S. R.L. Thornton Frwy. 
Suite 121 
Dallas, TX 75203 
(214) 428-3793

♦Counsel of Record

Respectfully submitted,

Gabrielle K. McDonald 
Walker & Satterthwaite 
7800 N. Mopac 
Suite 215
Austin, Texas 78759 
(512) 346-6801

William L. Garrett 
Brenda Hull Thompson 

8300 Douglas, Suite 800 
Dallas, TX 75225 
(214) 369-1952

Rolando L. Rios 
Milam Building, Suite 1024 
115 E. Travis Street 
San Antonio, TX 78205 
(512) 222-2102

Edward B. Cloutman, III 
Mullinax, Wells, Baab 
& Cloutman, P.C.
3301 Elm St.
Dallas, TX 75226 
(214) 939-9222

Attorneys for Petitioners