Transcript of Proceedings September 19, 1989 - Volume II
Public Court Documents
February 5, 1990
258 pages
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Case Files, LULAC and Houston Lawyers Association v. Attorney General of Texas Hardbacks, Briefs, and Trial Transcript. Transcript of Proceedings September 19, 1989 - Volume II, 1990. a78f5f8e-1b7c-f011-b4cc-6045bdffa665. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/ea9ee2fd-f67c-4ff0-9db5-46af925088de/transcript-of-proceedings-september-19-1989-volume-ii. Accessed November 07, 2025.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
MIDLAND-ODESSA DIVISION
LEAGUE OF UNITED LATIN AMERICAN
CITIZENS (LULAC), et al.
Plaintiffs,
Nos cay
Mid
JIM MATTOX, Attorney General
Of the State of Texas, et al.
a
a
a
E
a
—
—
v
m
i
N
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gh
Defendants.
TRANSCRIPT OF PROCEEDING
SEPTEMBER 19, 1989
VOLUME ITI OF V VOLUMES
TRANSCRIPT ORDERED BY: DEFENDANTS
TRANSCRIBED BY: MR. JIMMY R
Court Repor
U..'S. Distr
Midland, Texas
APPEARANCES:
FOR THE PLAINTIFFS: MR. ROLAND
Southwestern Voter Registr -
TY
SE NO.
land,
S
. SMITH
ter
MO-88-C2-154
gxXas
ict Court
P. OO. Box 1774
PO
Education & Project
Suite 521,
San Antonio
MS. SUSAN FINKELST
Texas Rural
Suite 521,
San Antonio,
201 73¢.
Legal
201 st.
J
Mary's
, Texas 78205
St.
APPEARANCES: (Continued. )
FOR THE PLAINTIFF:
FOR THE HOUSTON
PLAINTIFF INTERVENORS:
FOR THE DEFENDANTS:
FOR JUDGE SHAROLYN
P. WOOD:
GARRETT, THOMPSON & CHANG
Attorneys at Law
Suite 800, 8300 Douglas
Dallas, Texas 75225
BY: MR. WILLIAM L. GARRETT
MS. BRENDA HULL THOMPSON
MS. SHERRILYN IFILL
NAACP - Legal Defense and
Education Fund
16th Floor, 89 Hudson Street
New York, New York 10013
MULLINAX, WELLS, BAAB, &
CLOUTMAN
Attorneys at Law
3301 Elm Street
Dallas, Texas 75226-922
BY: MR. EDWARD B. CLOUTMAN, II
MR. E. BRICE CUNNINGHAM
Attorney at Law
Suite 21,
777 South R. L. Thornton Fwy.
Dallas, Texas 752023
Attorney General of Texas
Supreme Court Building.
P. O. Box 12548
Capitol Station
Austin, Texas 78711-2548
BY: MR. JAMES C. TODD
MR. RENEA HICKS
MR. RAFAEL QUINTANILLA
MR. JAVIER P. GUAJARDO
PORTER & CLEMENTS
Attorneys at Law
3500 RepublicBank Center
700 Louisiana Street
Houston, Texas 77002
BY: MR. J. EUGENE CLEMENTS
MS. EVELYN VV. . EEYES
APPEARANCES: (Continued.)
FOR JUDGE SHAROLYN MR. MICHAEL J. WOOD
P. WOOD: Attorney at Law
Suite 200, 440 Louisiana
Houston, Texas 77002
MR. DARRELL FRANK SMITH
Attorney at Law
Suite 905, 10999 Interstate 10
San Antonio, Texas 78230
FOR JUDGE F. HAROLD HUGHES & LUCE
ENTZ: Attorneys at Law
3800 Momentum Place
1717 Main Street
Dallas, Texas 7201
BY: MR. ROBERT HEH. MOW, JR.
MR. BORRY M. RUBARTS
MR. DAVID C. GODBEY
EE diana Barna tr
INDEX
PAGE
PROCEEDINGS DF SEPTEMBER 19. 1989:
Witnesses:
ROBERT BRISCHETTO (continued)
Direct Examination by Ms. Finkelstein
(Lubbock County)
Cross Examination by Mr. Hicks
(Lubbock County)
Redirect Examination by Ms. Finkelstein
(Lubbock County)
Recross Examination by Mr. Hicks
(Lubbock County)
Redirect Examination by Ms. Finkelstein
(Lubbock County)
Brief recess
Direct Examination by Ms. Finkelstein
(Ector Lounty)
Cross Examination by Mr. Hicks
(Ector County)
Redirect Examination by Ms. Finkelstein
{Ector County)
Direct Examination by Ms. Finkelstein
(Midland County)
Cross Examination by Mr. Hicks
(Midland County)
Direct Examination by Ms. Finkelstein
(Tarrant County)
Noon recess
Off the record
Direct Examination by Ms. Finkelstein (cont.)
(Tarrant County)
Cross Examination by Mr. Hicks
(Tarrant County)
Witness sworn
MARY ELLEN WHITLOCK HICKS
Examination by the Court
Direct Examination by Ms. Thompson
Cross Examination by Mr. Hicks
Witness sworn
NO.
107
107
108
121}
122
iw INDEX (continued)
PAGE NO.
RICHARD L. ENGSTROM
Examination by the Court 124
Direct Examination by Mr. Garrett 124
Cross Examination by Mr. Godbey 135
Redirect Examination by Mr. Garrett 153
Recross Examination by Mr. Godbey 154
Brief recess
158
JOAN TARPLEY WINN WHITE
Examination by the Court 163
Direct Examination by Mr. Cloutman 164
Cross Examination by Mr. Rubarts 174
Cross Examination by Mr. Todd 181
Redirect Examination by Mr. Cloutman 121
Witness sworn
193
FRED LELAND TINSLEY, JR.
Examination by the Court ; 194
Direct Examination by Mr. Cloutman 195
Cross Examination by Mr. Mow 206
Witness sworn
211
ROYCE WEST
Examination by the Court 211
Direct Examination by Mr. Cunningham Leela
Cross Examination by Mr. Godbey eel
Redirect Examination by Mr. Cunningham e333
Witness sworn
234
H. RON WHITE
Examination by the Court ea
Direct Examination by Mr. Cunningham 236
Cross Examination by Mr. Rubarts 241
Witness sworn
24
JESSE OL IVER
Examination by the Court ==
Direct Examination by Mr. Cloutman 249
Cross Examination by Mr. Mow 249
End of proceeding
eS5c
EiX4 1. B'% TS
NUMBER
PROCEEDINGS OF SEPTEMBER 19,
Exhibits listed as offered by attorneys and so designated:
Plaintiffs:
TR-2 Mentioned on page 6
TR-19 Mentioned
D-2 Mentioned
on page 6
on apge 128
L-1 Mentionned on page 8
L—2 Mentioned
L-3 Mentioned
L—-4 Mentioned
L-5 Mentioned
L—6 Mentioned
L-7 Mentioned
L-8 Mentioned
on page 10
on page 14
on page 17
on page 8
2h pads 17
on page 17
on page 47
L-10 Mentioned on page 20
L-11 Mentioned on page 43
E-1 Mentioned
E-2 Mentioned
E-3 Mentioned
E-4 Mentioned
E-8 Mentioned
E-9 Mentioned
on page O51
on page S51
or’ pags 4
on page 35
on page 355
on page 3595
E-11 Mentioned on page 56
et Cs i
ADMITTED
EXHaYp'1'7.S
(continued)
NUMB ER OFFERED ADMITTED
E-12 Mentioned on page 56
Mentioned
Mentioned
Mentioned
Mentioned
Ment 1oned
on
on
on
page
page
page
page
page
74
74
77
79
80
M-13 Mentioned on page 81
TA-6
TA=-6(
TA-7 Mentioned on
TA-9 Mentioned on
TA-10
Houston Plaintiff
Mentioned
Mentioned
Mentioned
Mentioned
Mentioned
Mentioned
Mentioned
a)
on
on
on
Mentioned
page 81
page 84
page 895
page 92
page 95
page 95
page 96
on page
page 97
page Bé
6
Intervenors:
73 73
78 78
89 8%
E XH] B1T6S (continued)
NUMBER OFFERED ADMITTED
Dallas Plaintiff Intervenoyr s:
12 Mentioned on page 160
17 Mentioned on page 171
18 Mentioned on page 196
20 Mentioned on page 201
21 Mentioned on page 217
2l(a) : 160 160
22 Mentioned on page 160
25 Mentioned on page 161
29 163 163
30 Mentioned on page 170
31 Mentioned on page 170
Defendants:
Houston Defendant Intervenors:
Dallas Defendant Intervenors:
PROCEEDINGS OF SEPTEMBER 19, 1989:
(Open Court.)
THE COURT: Good morning. I notice that we have got
a bunch of people flaking out. I don't know whether 1t was
so bad yesterday that they couldn't stand 1t or they are
regrouping for another assault. I didn't even know 1t was
bow tie day. Yes, sir.
MR. CLEMENTS: It may just be coincidental, but
there is a State Judicial Conference in Dallas. All the
judges are there, and I will bet you are the subject of
conversations.
THE COURT: I suspect that is probably true.
Yesterday, during the course of the day, three of the
district judges from Odessa dropped in. Sam Paxton is the
presiding Judge in El Paso for this administrative district,
and I am sure that he was on his way to Dallas and Just
dropped by from El Paso. Well, I guess it is nice to be
remembered. Okay. What county, we finished with Jefferson,
and now we are moving to —-
MS. FINKELSTEIN: Lubbock, Your Honor.
THE CDURT: Lubbock. Hot dog.
where Lubbock 1s.
MS. FINKELSTEIN: Judge, before we do that, we do
have some deposition summary narratives, as you requested.
May we, except there may be some lulls in the testimony where
ET AE SP TOA TON TLE
24
23
a witness is flying in, may we read those into the record at
that time?
THE CDURT: Yes. If that is the way you want 1t.
Did you all work out anything about -- come on up, Doctor.
Did you all work out anything about maybe changing up the
counties so that we wouldn't have to have everybody here all
the time? Did that work out over a Dewars last night by any
chance?
MS. McDONALD: I don't know whether Mr. Clements had
any Dewars, Judge, but we did talk.
MS, FINKELSTEIN: 1 am not sure I have it correct,
so I will rely aon Mr. Clements and Judge McDonald to tell me
if I have got it wrong. I think what we are going to do is
finish with Dr. Brischetto's testimony this morning on all of
the counties except for Dallas and Harris. Then we will
begin with Mr. Cloutman's presentation of the Dallas County
case. He has several fact witnesses, and with Your Honor's
permission, we have a fact witness who is a sitting Judge
from Tarrant County who is coming in who we need to take out
of order.
THE COURT: Away.from his convention?
MS. FINKELSTEIN: Hers, yes.
THE COURT: Her convention?
MS. FINKELSTEIN: Yes.
THE COURT: Okay.
24
23
MS. FINKELSTEIN: Then Mr. Cloutman will proceed
with his expert testimony and then we move to Harris. Is
that right?
MS. McDONALD: That may be a problem, Your Honor.
MS. FINKELSTEIN: And, Your Honor, also, I forgot to
mention our expert, Dr. Engstrom, on Dallas County, will also
proceed before Mr. Weiser, who 1s Mr. Cloutman's expert on
Dallas.
THE COURT: Okay.
MR. CLOUTMAN: That is my understanding, Judge.
THE COURT: What might be our problem?
MS. McDONALD: It is really our problem, 1 suppose.
1 think the compromise and adjustments are fine, but we are
having witness problems because we anticipated we would call
witnesses on Thursday. So, we are now trying to scramble
around and get some witnesses to call Wednesday afternoon,
which is probably the estimate, in light of our completing.
I think it will work out, at least two expert witnesses will
be available Wednesday afternoon. We have another Judge with
perhaps the same problem, who we may or may not be able to
get in Wednesday afternoon. And then we have other persons,
certainly, for Thursday. Our concern is whether we are going
to be able to finish, or fill up, really, Wednesday
afternoon. It really depends on the flow of the testimony.
But we have only two witnesses at this point for Wednesday
BBN Ce Py 3 om tS A YS Sy pA. RTE es ey Ti
En Pe hk A Lak SRC Sea eg
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dow
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afternoon.
THE COURT: Okay.
MS. McDONALD: So I am, 1 talked with the Dallas
intervenors, I said, "This is a good idea," and then as I
told Brice, now I am left holding the bag. We will see. 1t
may not be a problem.
THE COURT: If it all falls down and we don't have
anything else to do, I will start my Environmental Protection
Act case. And the way we will handle that 1s, whoever forces
me to go tah and not have anything to do Wednesday
afternoon, what we do is, we take you to Odessa and we have
an injection well. We put you down in the well and we will
see if, whoever it is, where the chromium comes up. That 1s
what we have to decide. It won't be any bad problem at all.
MS. McDONALD: My co-counsel is not here this
morning, Your Honor. We are spelling each other. She 1s
going to be here this afternoon, so I will tell her what you
suggested.
THE COURT: All right. Fine. Thank you.' On to
Lubbock.
ME. FINKELSTEIN: Your Honor, before we do that, we
did have one exhibit from Travis County which was the
analysis that Dr. Brischetto did that we did not present 1n
our original exhibit book. 1 discussed giving a copy of it
to Mr. Hicks. I would like to, I have marked it as
e4
ES
no
| Bb
Plaintiffs' Exhibit TR-19. May I give it to the clerk and
approach the witness?
THE COURT: You may.
MS. FINKELSTEIN: Thank you.
THE COURT: Today is not only my wife's birthday,
but it is Peggy Gault's birthday, who works as a secretary
for the U. 5. Attorney. So, if you all don't have anything
else to do, you might go by and wish her a happy birthday.
She will feel good about it, she is 60 years old. Okay. Go
ahead.
DIRECT EXAMINATION (Lubbock Co., cont.)
BY ME. FINKELSTEIN:
1
Q. Doctor, I have given you a copy of what has been marked
as Plaintiffs Exhibit. TR-1%. ls this the second analysis
that you mentioned in your testimony yesterday?
A. 1 is.
Q. And what is, just to remind the Court, what is the
difference between Plaintiffs' Exhibit TR-19 and TR-2, which
was the regression analysis that you discussed yesterday?
A. Yes. The difference between this analysis and the one
done yesterday on Travis County 1s essentially that this is
an analysis of registered voter data and percent Spanish
surname registered as it relates to the voting for each of
the candidates. And specifically the Hispanic candidates,
and the one, TR-2, presented yesterday, was an analysis of
pie
Brischetto — Direct (cont., Lubbock Co.? —- Finkelstein 2-7
the elections as it, returns as they relate to population
data by race and Spanish origin. So, 1t is Just another way
of running the same elections, but using different base data
on the ethnic composition of the precincts.
@. Did this change in the data base make any difference 1n
your analysis?
A. 1t made no difference in the results, essentially they
were the same.
MS. FINKELSTEIN: Thank you. Mr. Hicks mentioned
earlier that he might want to cross examine Dr. Brischetto on
this exhibit.
THE COURT: Do you have any questions on this
exhibit, TR-197
MR. HICKS: Your Honor, I have an objection to 1t.
I suspect it is primarily for the record.
THE COURT: Make it for the record.
MR. HICKS: These are the plaintiffs, and at that
time, Dr. Brischetto was the principal expert for these
counties. They announced they were ready for trial back in
June on this case for the July trial, and it seems
inappropriate to me to just now disclose an exhibit that
forms a basis for Dr. Brischetto's opinion. And 1t 1s beyond
the time period that you set 1n one of the orders preceding
commencing trial in this case for disclosing bases for
opinions. So, on that basis, 1 object.
Brischetto — Direct {cont., Lubbock {o.}) = Finkelstein 2-8
1 THE COURT: 1 am going to allow it. Your objection
2 is overruled. There is not anything in here that is
3 particularly alarming, different from TR-1, nor should 1t
4 come as any surprise. Okay. Go ahead.
8 By ME. FINKELSTEIN:
6 f. Doctor, let's move on to Lubbock County, which is in
7 Plaintiffs Exhibit Book 2. Would you look with me at
8 Plaintiffs' Exhibit L-57
g A. Yes.
10 @. What conclusions do you draw about the combined
ii minority's community in this county --
12 A. I'm sorry, you will have to move closer to the
13 microphone. I am having a hard time hearing you.
14 Q. Is that better? i =
15 A. Is the mike on?
16 RQ. Okay. We are proceeding, Doctor, as you know, on a
17 combined minority case, meaning Hispanics and Blacks, in
18 Lubbock County.
1% A. Yes.
r={0] Q. What does Exhibit L-1 tell us about the combined
21 minority community in Lubbock County?
22 A. Of the population, the Black and Spanish origin groups
£3 total 27 percent. Of the voting age population, Blacks and
24 Hispanics total 22 percent. There are more Hispanics than
es Blacks, about 20 percent Hispanic in the population, slightly
24
eS
BCE ATI TOE SVL CA EINE PY 3 TERE AN A SY ST SATE AA TT re vee bE Sa ROT Co Wl Za 3 GER TATE PTT a Sa EE a
Brischetto - Direct (cont., Lubbock Co.) - Finkelstein 2-9
less than eight percent Black.
MS. FINKELSTEIN: Judge, as we noted in our pretrial
order, when we filed this case, there were five district
judges who sat in Lubbock County. The Legislature, as of the
first of this month, added a sixth court. So, now there are
Six.
By MS. FINKELSTEIN:
Q. The 72nd District Court, which is in Lubbock County, is
elected from both Lubbock County and Crosby County. Doctor,
do you know the number of registered voters in Crosby County?
A. In 1989, the number of registered voters in Crosby
County was just over 4,000, about 4,039.
BG. And in Lubbock County?
A. In Lubbock County there were 108,177 registered to vote.
R@. And what year was that?
A. That was in '89 also.
Q. Does that affect your decision about what kind of data
. to analyze in the elections for the 72nd District Court which
is elected from Crosby and Lubbock Counties?
A. Well, it certainly means if I am analyzing voters, I
will find most of them, 96 percent of them, in Lubbock
County. We look at those two combined.
RQ. So, was it necessary to also look at Crosby County data?
A. I didn't think it necessary to look at Crosby County.
It certainly would not affect any, to any large extent, or
Brischetto — Direct (Lubbock Co.) - Finkelstein e—10
even a small extent, actually, results in my analysis.
THE COURT: Doctor, I suspect you have never been to
Crosbyton.
A. I haven't. I haven't.
MS. FINKELSTEIN: I haven't either, Judge.
THE COURT: You haven't? That is the County Seat.
ME. FINKELSTEIN: I have not been anywhere 1n the
county, Judge.
BY MS. FINKELSTEIN:
D. Doctor, turn with me to Plaintiffs’. Exhibit L-2, which
is a two-page exhibit. The first page has your analysis of
General elections, and the second page has your analysis of
Primary elections in Lubbock County.
A. Yes.
Q. Would you explain, please, how you picked the elections
to analyze?
A. Yes. Lubbock County, there were no District Court races
at all where minorities ran, either in Primaries or Generals,
either Black or Hispanic candidates against Whites. And I,
so 1 did not analyze any District Court races. There were no
County Courts at Law where minorities, either Blacks or
Hispanics, ran. There were no JP precincts, at least as
large as a metropolitan center that were, where Blacks or
Hispanics ran. What I did was analyze the Appellate Court
elections. There were two General, and then I went on and
24
eS
Brischetto — Direct (Lubbock Lo.) —- Finkelstein c—11
did the Primaries to get some more contests. I did Generals
and Primaries.
Q. Why did you not stop with just the General elections,
the two General elections?
A. Well, I wanted to get, as 1 indicated earlier, at least
three elections to analyze 1n each county.
0. All right. What was the data set that you relied on 1n
your analysis of Lubbock County?
A. It was a 1980 census data on population that was by 1980
precinct boundaries. And we then looked to see which
precincts had not changed their boundaries over the period
between '80 and those elections that 1 analyzed. We came up
with 30 such precincts.
0. What is the total number of precincts in Lubbock County?
A. The total number of precincts in Lubbock County, I
believe, is 76.
Q. Before we move on, Doctor, what would be the lowest R
squared that you would derive from this table in Lubbock
County?
A. Let's see, that would be a point, we look at Pearson R's
for the Primary elections, the lowest ones, the lowest R was
87. And that would be a seven, .76, sO it would be 76
percent of the variance explained.
Q. So your analysis here accounts for at least a little bit
more than three quarters of the variance?
24
£5
Brischetto - Direct (Lubbock Co.) = Finkelstein c—-1e
A. At least three quarters of the variance.
QR. Okay. Does this analysis lead you to any conclusions
about whether, in Lubbock County, the Blacks and Hispanics
vote cohesively together?
A. Whether they vote cohesively together? Yes, 1t does.
R@. What parts of the tables do you rely on to reach that
conclusion?
A. Well, 1 looked at the question of cohesiveness. This
was a combined minority district. We are seeing 1f we
couldn't draw districts which had &@ combined Black and
Hispanic population, S50 percent or more voting age. So, my
first analysis was a bivariate regression that looked at the
Anglo versus combined minority voting. That would give you
some indication, but I think a more precise indication would
be when we break down the combined minority, and partial,
look at each of the groups separately in the multiple
regression analysis. If you look under multiple regression
analysis, it gives the estimates for each of the groups. 1
would look at Hispanic and Black to see if particularly they
were voting in a similar way.
@. And what did you find?
A. I found out that in every case, they were voting
similarly.
Q. And does your analysis lead you to a conclusion about
whether or not in Judicial elections in Lubbock County the
pt
14
Brischetto — Direct (Lubbock Co.) —- Finkelstein 2-13
Anglo bloc vote generally is strong enough to defeat the
Black and Hispanic choice, preferred candidates?
A. Yes.
0. And what is that conclusion?
A. That is the case in most cases.
Q. Okay. And does this analysis lead you to any
conclusions about whether there is polarization along ethnic
lines in voting in Judicial elections in Lubbock County?
A. Yes. I think there is very strong evidence of
polarization here in Lubbock County. In fact, it'holds in
every case.
@. All right. After you turned, we turned in this exhibit,
did you do any other analyses?
A. Could I give you the basis of that, though?
GB. Uh-huh,
A. 1 looked at the Pearson R's, the bivariate ones, and
those were high throughout. And then looked at the side
that, who the candidates were that each of the groups
preferred or voted for, and found, then compared those
groups, particularly the Anglo versus Hispanics and Blacks,
and in every case. Anglos came out on a different side of the
elections if ‘you look at the results. And 1f the election
were held among Anglos, the results would have been different
in every case than if the elections were held among Hispanics
or if the elections were held among Blacks. So, on the basis
Brischetto — Direct (Lubbock Co.) —- Finkelstein e-14
of those two types of evidence, the correlation coefficient
and the estimates from the regression analysis, we have
evidence of polarized voting.
@. Let's move on then.
A. Okay. Go ahead. I'm sorry.
Q. After we turned in this exhibit, did you do any other
analyses that confirmed your results in this table?
A. Yes. I was able to get some, some -- hoping to get, I
did some overlays of census tract, actually they were bloc
maps from 1980 census over the current precinct boundaries.
And for each overlay for that particular year, 1 would
reconfigure or re-aggregate the total number of Hispanics,
Blacks and Anglos, within each precinct from the bloc data,
adding up the blocs within that. And I was able to boost my
'N' ‘from 30 to 48. In most of those contests in 'B&6, 1t
dropped down to 44.
@. Doctor, by increasing your 'N', what do you mean?
A. That was the number of precincts that 1 was able to use
in the analysis.
Q. Is this the same kind of reconfiguration that you
described when Mr. Hicks was asking you questions about the
Travis County data set yesterday? |
A. It is. And this is how 1 was able to get a larger
number of precincts to analyze. And the results are actually
very similar to what 1 found in the earlier ones.
Brischetto — Direct (Lubbock Lo.) —- Finkelstein 2-15
Essentially, we came out with the same results.
RQ. All right. Let's move on to Plaintiffs’ Exhibit L-3.
This is an equity chart, and could you tell us what it says
about Lubbock County?
A. Yes. This talks to the number of, presents the number
of Judges 1n each vear sitting on the District bench and
compares and looks at the number that are minority, that 1s
either Black or Hispanic. And compares that with the
minority population. There are actually no judges in any of
the years from '85 to 'BY? who were minorities sitting on the
bench. And so the equity measure shows a minus score 1n each
case.
GQ. Dkay. Let's move on to Plaintiffs' Exhibit L-4.
MS. FINKELSTEIN: Judge, this was drawn assuming
there were five District Courts, so it was based on a
district based on one-fifth of the population in the county.
BY MS. FINKELSTEIN:
@. Doctor, looking at this, did you come to a conclusion
about whether or not the combined minority voting age
population 1n Lubbock County is sufficiently large and
geographically compact enough to constitute a majority in at
least one single-member district?
A. Yes, 1t 1s. If we look at Black plus Hispanic
population, we are able to get a district which 1s 75.8
percent combined minority of the voting age population.
I Ws (ns Ls Si Sa Sn
24
25
Brieschettoc —- Direct (Lubbock Co.) - Finkelstein 2-16
Fb. "Doctor, if it is possible to draw a district, a
satisfactory district assuming five districts, would it also
be possible to draw one assuming six”?
A. Yes. Actually, that would be easier. If you can get
five, you can certainly get six. That would be actually a
smaller district that you would be drawing.
MS. FINKELSTEIN: Your Honor, we would argue to you
that whether or not you chose to include the 72nd District
Court we selected from two counties, we can draw a district
in Lubbock County, if you would prefer to leave out the 72nd
Court, then there are five courts only in Lubbock County, and
we could draw a district with those criteria. Otherwise, 1f
you prefer ta leave the 72nd District Court in, then it is
six districts, based on six districts also, Your Honor.
THE COURT: I can hardly wait to hear how Mr. Hicks
describes the way you have done it with five, because he is
so descriptive of the way that the line, district lines are
drawn.
MS. FINKELSTEIN: This does not look like a frown.
BY. MS. FINKE|L STEIN:
Q. Doctor, would you please move to Exhibit L-5,
Plainti¥fs' Exhibit L-5, And what, that is a list of the
incumbent judges, District Court Judges in Lubbock County.
A. Yes.
Q. What does it say about the county?
Brischetto — Direct (Lubbock Cao.) - Finkelstein Z2—317
A. It says there are five District Judges and that all of
them are White, no Hispanics, no Blacks.
GB. And are the numbers in the far left-hand column the code
for the next exhibit?
A. Yes, those are the codes for plotting the judges
according to their resident precincts.
Q. le that what is done in Exhibit L-67
A. It 1s.
QR. And what does this show us about the county?
A. L-&6 compares the residents of the incumbent judges with
the outline of the minority areas, that 1s the area that
exceeds 50 percent combined Black and Hispanic.
THE COURT: In Lubbock they alll don't live inthe
same house, do they?
A. No. They are spread out a little bit more, although
they seem to be very close tc one another. It is a larger
map.
BY MS. FINKELSTE]IN:
Q. And what conclusions does this lead us to?
A. The conclusion is that indeed there does seem to be
separation between the minority population and the incumbent
judges, perhaps both geographic and in terms of political.
Q. And is that the conclusion that you would draw 1n any
county where you saw this kind of separation as you have Just
called it of the residential patterns?
24
25
Brieschetto — Direct (Lubbock Lo.) - Finkelstein 2-18
A. 1 think so, yes.
De. Please move to Plaintiffs®' Exhibit L-7.
A. Yes.
QR. This is the four-page exhibit of socioeconomic patterns
in the county based on racial and ethnic groupings. What
conclusion can we draw about Lubbock County from this
exhibit?
A. From this exhibit we see the level of stratification 1n
the community that falls along racial and ethnic lines. 1¢f
we compare the Anglo group on the right with the Hispanics
next to it and the Black, on each of these measures we can
see some large differences. Hispanics seem to be
particularly low with regard to education, 28 percent below
four years and only four percent college graduate, whereas
almost a fourth of the Anglos are college graduates. Blacks,
a similar pattern, only 6.7 percent college graduates.
Although few of them have less than five years of education
than Hispanics, there are still greater numbers, proportions,
that are very low education. We can do that with regard to
each of the indicators, family income, we do it with regard
to occupation, with regard tc poverty status, and see large
differences. I might point out, for example, in terms of
poverty rate, that families, below poverty, more than a
fourth of Blacks and about a fourth, 24 percent of Hispanics
are poor, whereas five percent of Anglos are poor.
Brischetto — Direct (Lubbock Co.) - Finkelstein e—-19
“ 1 @. So what conclusion does this lead us to?
e A. This leads me to the conclusion, first of all, that
3 there is, there are some effects here, I think, that show
5 these data, discrimination both past and present. 1 think,
oS too, it is an indication that minorities are less equipped
6 with those resources that they need to participate fully in
7 the political system.
8 QQ. Let's move on to Exhibit L-8, it shows the 1987
Q registration rate for Lubbock County. What conclusion does
10 this lead you to?
il A. Okay. This is 1987 registration compared to estimates
ie of 1987 population, and it looks particularly at Spanish
13 surname registration as compared to, as a percent of the
14 TT voting age population in Table 3, for example, 43 percent of
15 Hispanics of voting age are registered while 62 percent of
16 non-Hispanics, the other group, are registered to vote. It
17 leads me to the conclusion that Hispanics are indeed under-
18 registered in Lubbock County compared to other voters.
1€ Q. Doctor, do you have any other reason, other than your
20 analysis in this case, to be familiar with election patterns
23 in Lubbock County?
iy A. Yes. I testified in a case there back in 1982, the end
e3 of 1982, beginning of '83. It was a case of Jones versus the
24 City of Lubbock, and I analyzed election patterns in that
25 case in the county at that time.
Brischetto — Direct (Lubbock Co.) —- Finkelstein 20
MR. HICKS: Your Honor, I object to testimony on
what his testimony was during another case involving another
set of defendants and another challenge.
THE COURT: 1 am familiar with the Jones case.
MR. HICKS: 1 understand, Your Honor.
THE COURT: As is Judge Woodward, of course and that
case, was appealed. And if I understood the question, Ms.
Finkelstein is trying to prove this fellow really knows a lot
about Lubbock.
MS. FINKELSTEIN: Your Honor, the Fifth Circuit
Opinion is published. We are right now trying to get a copy
for you of the District Court Opinion, which we would like
you to notice, if you wouldn't ating. It would be Plaintiffs’
Exhibit L-10, and it summarizes Dr. Brischetto's analysis
there.
BY MS. FINKELSTEIN:
@. Doctor, who was the —- who was the defendant's expert in
the Jones case”?
A. It was Dr. Taebel.
Q@. Do you know, was there a remedy implemented in the Jones
case”?
A. Yes, there was. They adopted single-member districts,
and that was the result of this suit particularly.
Q. And what happened after those districts were
implemented?
Brischetto — Direct (Lubbock Lo.) — Finkelstein e-21
A. Black and Hispanics, Black and Hispanics were elected
for the first time to the City Council in Lubbock.
BG. ‘Allright. And do you remember, in that case, did you
find that polarization existed along racial and ethnic lines?
A. I found a very high —-
THE COURT: Your objection goes to all of what he
may have found in the other one. You have a continuing
objection, yes, sir. Go ahead.
A. Does that mean I can answer the question?
THE COURT: Go ahead. You may answer the question.
A. Okay. 1 analyzed, for example, 15 races where Mexican-
Americans ran and seven where Blacks ran, and in two-thirds
of the cases found correlations above .92 relating to the
ethnic composition and racial composition of the precincts.
And all of the cases had correlations above .93. My
conclusion was that there was a high degree of racial
polarized voting in Lubbock. The Judge confirmed that
conclusion, and in fact the expert for the, noted that the
expert on the other side admitted that there was a high
degree of racially polarized voting.
MS. FINKELSTEIN: Judge, 1 have just gotten copies
of the unpublished District Court Opinion 1n the Jones case
which I am marking as Plaintiffs' Exhibit L-10 and giving a
copy to Mr. Hicks right now. May we have this admitted?
THE COURT: It will be admitted. Mr. Hicks has seen
24
23
that you are talking about?
Brischetto - Direct (Lubbock Co.) - Finkelstein ere
that before. That doesn't come as any surprise to him.
MR. HICKS: Your Honor, I have an objection that is
similar to the others, but I don't know for what purpose 1t
is being offered. That is the problem.
THE COURT: The purpose it is being offered is to
prove that some other judge at least found polarization of
the voters in Lubbock. 1 assume that is. What other purpose
could it be?
MS. FINKELSTEIN: That, and also, as we said
earlier, to show Dr. Brischetto is familiar with Lubbock.
BY MS. FINKELSTEIN:
Q. Doctor, you have just been handed a copy of what has
been marked as Plaintiffs’ Exhibit i.—-10. Is that the Opinion
A. Yes, 1t 1s.
@. And, did the Judge accurately report your findings 1n
that case?
A. l1‘think he did. I would think that the characterization
at least was accurate of my analysis, and that 1s very strong
evidence of racially polarized voting.
G. And, did that sort of corroborate your analysis that you
did for this case?
A. I think it does corroborate the analysis. It 1s, some
of the elections that I analyzed were not just city, but
county.
08
}
Brischetto — Direct (Lubbock Co.) - Finkelstein oc
MS. FINKELSTEIN: I will pass the witness for this
county.
THE COURT: Mr. Hicks?
CROSS EXAMINATION (Lubbock Co.)
BY MR. HICKS:
Q. Dr. Brischetto, looking at the second page of L-12,
which is the page on which you report the results of. your
analyses of the Democratic Primary election in 'B6, am 1
correct in saying that that exhibit, as to the Primary
elections in Lubbock County, demonstrates that Whites do not
vote sufficiently as a bloc so as usually to defeat the
candidate of choice of the minority voters?
A. No, I don't think thet is a correct interpretation.
Q. Let me ask this. You analyzed four races, four
Democratic Primary races. In SO percent of them, the
preferred candidate of the combined minority voters won;
correct?
A. That's correct.
Q. And in S50 percent, they lost?
A. That's correct. That is in the Democratic Primary only.
QR. That is what I asked you about.
A. And your question was, do they not vote sufficiently as
a bloc to regularly defeat --
Q@. Minority candidates in Democratic Primary elections”?
A. Right. Half of the time they do, and half of the time
—-24 n Brischetto - Cross {(lLubbock Lo.) — Hicks
they don't. I think it would be a question of whether or not
you consider half of the time usually. My conclusion was,
went not only to Primary, but to General elections. 1t is
true that in two of the General elections, the choice of the
minority candidate made it through the Primary. The choice
of minority voters made it through the Primary.
@. And are you aware, looking at the General Election, that
in 1986 in a race for Attorney General between a Republican
candidate who was an Hispanic and the Democratic candidate
who as Anglo, that the majority of White voters voted for
the Hispanic candidate and that Hispanic candidate was
victorious insofar as Lubbock County was concerned?
A. No, liam not. I did not analyze that.
Q. Why didn't you analyze that?
A. Because 1 was just analyzing Judicial elections.
Q. What 1 don't understand is, I thought you testified that
you needed at least three races. If you didn't have three
races, you would go look elsewhere, and the way I see 1t for
the General Election in Lubbock County, you only have
analyzed two races.
A. 1f I didn't have three races, Judicial races, 1 went on
to look at Primary Judicial races.
@. Are you aware that there was a Judicial race in Lubbock
County that you did not analyze that involved contests for
Justice of the Peace between a Black Republican candidate and
Brischetto —- Cross (Lubbock Lo.) —- Hicks 2-25
Hispanic Democratic candidate?
A. 1 believe —— can you tell me what JP precinct that was?
Q. I can't tell you the number. The Black, the Black
Republican candidate was named Shephard.
A. Okay.
Q. I believe the Hispanic Democratic candidate was named
Sedalia. Did I say Republican Hispanic? Democratic
Hispanic.
A. I did identify those races, and since the JP, 1 believe
those were JP precincts. ] have to check, but: 1 think they
were. Give me the names again. Sedalia was JP Precinct 6
and the Black was, what was his name”?
@. McKinley Shephard.
A. Okay. Shepherd, yes. He was JP, Precinct 1. Okay.
And in those, in those races, what we had was a JP precinct
which in each case split the City of Lubbock in two, and
according to the standards that I set that we have a JP
precinct that included the totality of a metropolitan area,
at least the large majority of the county. I did not analyze
those races.
Q. Why did you analyze the Jefferson County JP races, since
they didn't involve a majority of the county?
A. Those included large, a major city within the county.
That was my standard for choosing. What I wanted to avoid
was analyzing small races that could be too small, that might
Brischetto — Lross (Lubbock Lo.? =
be considered predominately, or one portion of the county.
wanted to look at county-wide voting if possible. I wanted
to look at JP precincts that were large enough to cover a
large portion of the county or a major metropolitan area.
When 1 looked at those particular precincts, and the fact
that they split the City of Lubbock in half, those did not
fit my criterion.
PB. Looking at the second page still, of L-2, 1 take it you
also used the analysis in L-2 to make, to form some opinion
as to whether Blacks and Hispanics in Lubbock County are
politically cohesive; is that correct?
A. That's right.
Q. Between themselves. And can you tell me how, looking
at, for instance, the second race in the Democratic Primary
that you analyzed, which was Justice Gonzales versus three
Anglos?
A. Yes.
Q. How does that demonstrate, in the multiple regression
analysis, tell me how that demonstrates, if you will, that
Blacks and Hispanics are politically cohesive.
A. Well, in the multiple regression analysis itself, we
separate out Black and Hispanic estimates of their voting.
We find Blacks and Hispanics both were voting, a large
percentage of them voting for Gonzales, which was their
preferred candidate. On the other hand —- that was one basis
24
23
Brischetto — Cross (Lubbock Lo.) - Hicks c—c7
for drawing my conclusion about whether those two groups are
cohesive or voting similarly. Also, 1 looked at the
homogeneous precinct analysis and looked at the combined
minority precincts, those that were at least BO percent
Black, plus Hispanic, and found that, we found 89 percent
support in those homogeneous precincts. And 1f we looked at
the bivariate regression analysis, Black and Hispanic
estimate was 97 percent support together for Gonzales. SO
concluded that indeed they were cohesive, they were voting
very much the same.
Q. Let me ask this. You discussed R squared, R squared
function, and explained, 1 thought, what the lowest R squared
was. In looking at still that same race, Supreme Court,
Place 4, Democratic Primary, in '86, your R squered for
Blacks in your regression analysis comes out to about 31
percent; isn't that correct?
A. That would be about right. Twenty-five, six squared.
That is my partial.
Q. You explained hardly anything of the factors that affect
this.
A. Well, it means essentially my partial R 1s an indication
of how well, how reliable we are estimating the Black, the
Black vote for the candidate here, and the correlation is
hs, And 1 would consider a correlation of .5 or better a
good correlation.
24
25
CHT IT
rn
Brischettoc — Cross (Lubbock Lo.) - Hicks -28
R. You mean basically you explained 25 percent of the
factors, you consider that good?
A. I think that is generally accepted as a fairly good
correlation. It is not what we would call a high one 1n this
type of work, but it certainly 1s an acceptable one.
@. Do you think something as important as this where you
are in essence trying to change an electral system, that that
level of explanation suffices for you as a sociologist?
A. Look, I would not rely on that one partial R to draw a
conclusion about political cohesiveness. We have got to look
at the fact that the partial, that the combined minority,
when we combined Blacks and Hispanics, correlates with the
vote for Bonzales at a level of .93. We have explained then
over 90, I'm sorry, 85 percent of the variation on those and
how people vote by knowing just whether or not there were
Blacks and Hispanics in the precinct, what percent Black and
Hispanics there were in the precincts. That is a good
indication, 1 think, of —- and the estimates are 97 percent
for those two groups voting for that candidate. That 1s a
good indication of strong cohesiveness.
Q. Do you have a threshold for cohesiveness, kind of a
threshold percentage you use”?
A. My judgment is based on looking at each of the analyses,
seeing what the results are. If they come out and are
consistent, I will draw a conclusion about that.
n
| n Ny
Brischetto — Lross {Lubbock Lo.? - Hicks
QR. What standard do you apply”? I mean when you look, you
have to have a standard against which you measure, it seems
to me.
A. One thing I looked at is do Anglos, do Mexican—-Americans
and Blacks come out on the same side in the election? That
ic sort of a minimal standard that I require of myself to say
that they are voting together.
Q. That is a kind of a measure of minimal cohesiveness, is
that a fair term?
A. Yes. At least that. And then, of course, I look at the
correlations and see to what extent there is a clear pattern
for Hispanics and Blacks, both separately and together.
Q. What constitutes a clear pattern’ Is it the same 1in
every race you analyze?
A. I think if there-:is a strong correlation, and our
ectimates come out on the same side, then we have a clear
pattern.
RQ. On the same side in each race”
A. On the same side in particular races that we are looking
at. Of course, then I will look across all races and see if
the patterns holds for the various races.
RQ. What does it take, in your judgment, in what you are
saying the pattern holds, what 1s the standard for
determining whether the pattern holds, two out of three, a
majority, what is it?
Brischetto —- [ross (Lubbock Co.) — Hicks c—30
» 1 A. Well, generally, I will want to find that indeed they
2 are voting together, at least half the time.
3 R. So half the time is the standard for a pattern?
4 A. I think that would be a pretty good indication of
3 cohesiveness. And I think that would certainly suffice to
6 say that there is cohesiveness between the two groups.
7 Q. Is there anything in sociology literature or political
8 science literature that you are aware of that kind of sets
9 that as a standard, or is this a standard you came up with?
10 A. Well, it is a standard that 1 have placed upon this in
11 not only my own analyses, which has been many, many, many
12 different elections and races and jurisdictions, but 1t 1s
i3 Ado, 1 think, a standard that has been used by other
14 analysts who look at election returns and try to identify
15 whether there is polarized voting.
16 @. You mean in lawsuits?
17 A. And whether there is cohesiveness.
18 @. You mean other analysts in other lawsuits?
ig A. That would be what I would be referring to, yes.
20 Q@. But you are not talking about the standard literature in
cl the area that might be published in political science
er journals or anything; is thet correct?
23 A. Yes. I think the standard literature probably would be
24 even more relaxed than my standard. In the social science
25 literature, particularly in sociology, we get excited about a
24
25
Brischetto = Cross (Lubbock Co.) - Hicks e—31
correlation of .3. Point five makes us, usually, ecstatic.
Q. 1 would hate to know what .735 does to you. |
THE COURT: Please don't describe that to me.
A. Point nine is orgasmic.
THE COURT: That is what I was afraid of.
A. But here we are dealing with elections and we have sort
of, I think, got a little bit higher standard, because we
are, generally we do find that there is voting along racial
lines. That pattern comes up so frequently that we are used
to high correlations.
BY MR. HICKS:
Q. Let me ask you this, going still with the R square in
correlations. When you are talking about this, explaining X
percent of the outcome, you exclude completely from that
partisanship; correct? I mean that just is not a factor?
0. Well, I don't know what you mean when you say 1t is not
a factor, because, can you explain to me what you mean by
that, and I will be able to answer.
Q. Let me ask you if it is a factor.
A. A factor in what?
QR. When you say that if you get R square of blank amount,
that explains that percentage of the outcome. And I am
saying that excludes, even that excludes party affiliation.
A. In a bivariate correlation all we are doing, or even a
multivariate at this time where we look at the only
24
235
1)
n
Brischetto — Lross (Lubbock LCo.J).~ HiCks ood
predictors of voting are the ethnic compositions of voters in
the precinct, all we are doing is looking for a relationship
between ethnic composition in the precinct and how people
vote. We have not entered into that equation anything about
the party of the voters, if that is what you are asking
about. It is a simple attempt to describe differences in
voting patterns among racial and ethnic groups. It 1s not an
attempt to try to analyze and explain why voters voted the
way they did, was it because of their party affiliation, or
was it because of the fact that the voters were poor or rich
or more educated, or because they had gone to one finishing
school or another, or whether because they had, were of one
religious type or another. These,. all of these types of
explanatory factors, why people vote as they do, are not part
of this analysis. That is not what we are doing. l didn't
see that as my job in this assignment to look to just to see
if we could describe a pattern of racially polarized voting.
Q. Your judgments about cohesiveness, political
cohesiveness among the minority groups, or between the
minority groups in Lubbock County, and in the other analyses
you have done in the other counties, is based solely on your
regression analysis and homogeneous precinct analysis; 1s
that correct?
A. That's right.
Q. Okay. Wouldn't you think it would have been helpful to
Brischetto —- Cross (Lubbock Co.) — Hicks 2-33
1 you to determine cohesiveness to do a bivariate regression
2 analysis on the race, the JP race between a Black Republican
3 and an Hispanic Democrat?
G4 A. Black Republican and Hispanic Democrat, no. I didn't
Ss think that appropriate.
6 Q. If Whites and Blacks tended to vote for the Black
7 candidate in that race, Hispanics tended to vote for, and by
8 ‘tend', I mean more than 30 percent, tended to vote for the
9 Hispanic candidate, would that just not say anything to you
10 about cohesiveness between Blacks and Hispanics 1n Lubbock
11 County?
ie A. Dkay. Yeah, my criteria that I set up was to see
13 whether they were cohesive when they went up against a White
14 opponent, so that is why I did not include such races. I
1S suppose one could learn something about whether or not Blacks
16 and Hispanics were voting together by looking at such a race,
17 but those were not the criteria that I set up for selecting
18 races. And I don't think that unless you really get a White
19 candidate in the race that you can tell, that you can tell
20 too much about the, what would happen in such a type of
21 contest where Whites were running against minorities. 12 1s
=e usually in those types of contests, I think, that we find
£3 that minorities will come together, and that 1s what we are
24 looking for.
23 @. What I don't understand is, 1 thought that you are, what
CER rT yp te 5 Se Tne fe Pry eE Se gm mrne
Brischetto —- Cross (Lubbock Lo.?.— Hicks c—3%
you are really trying to get at is voter preference and that
the race of the candidate was irrelevant to that.
A. Well, it wasn't irrelevant in my selection of races to
analyze, so I guess it was not irrelevant.
Q. It is relevant to you in picking the races to analyze,
irrelevant to you in viewing how the voters vote; 1s that
right?
A. I guess in terms of looking at how voters vote, we would
simply show how they came out and look at voting groups in
comparison to one another. For example, how did Whites vote
as a group, Hispanics vote as a group, and Blacks vote as a
group, if each of the groups spoke as a bloc, and how would
these blocs compare to one another?
Q. Is it fair, though, back to the question 1 asked, that
in selecting the races you are going to analyze, the race of
the candidates is relevant in selecting, and in looking at
the outcome of the race of the candidate is irrelevant?
A. Looking at the outcome, yes, I simply look at the
outcome and see which side the groups are on.
R.: S01 am right?
A. That's right.
Q. I am going to look at, still looking at the second page
ofil.—2. In the second race there, the Gonzales versus three
Anglos race in the Democratic Primary.
A. Yes.
24
£3
Brischettoc — Cross (Lubbock Co.) — Hicks 2-35
Q@. There are four candidates there, and I take 1t non-
polarized voting under your definition would be where each
candidate got 25 percent of the different minority groups
vote; is that right?
A. No.
Q. Okay. I misunderstood that. At any rate, if you just,
if you assumed there is no choices based on race or the
voters aren't voting differentially for different candidates,
if you just take four candidates and divide by four into the
100 percent of vote, you get 25 percent as the likely outcome
if you just, if everybody just votes the same, every
candidate is going to get 23 percent; correct, if everybody
splits their vote? How can I articulate this? I am having a
hard time. There is 100 percent votes, four candidates. if
everything is evenly split, each candidate is going to get 235
percent of the vote; correct?
A. Yes.
Q. And Justice Gonzales got 36 percent of the White vote;
right? He got more than it would be if it was just simply
evenly split?
A. Yes, he did.
Q. And the other three White candidates each got, you
didn't run an analysis to see what percentage of the White
each of the other three candidates got; correct?
A. No, J] didn't.
A: 3 RET TT NT 7 WL, VE nar
W
w
8) Brischetto ~ {ross (Lubbock Lo.) — Hicks 2-3
@. But if you divide three into 64 and assume it 1s evenly
split, each of them got less of the White vote than Justice
Gonzales got; correct?
A. If you assume they were evenly split. I think you also
have to look at whether or not these candidates were
incumbents. I think you have to look at —-
Q. Let's assume none of them was an incumbent.
A. I think that here, all we are doing is analyzing how did
it come out with regard to the, in this case, the candidate,
Hispanic candidate, and we look at the level of support, and
we see they are quite different. In fact, what 1s remarkable
ic the size of the difference in the support by the Anglos
and support by Blacks and Hispanics, 36 percent by Anglos and
Q7 percent by Blacks and Hispanics.
Q. Given your, accepting your analysis and the numbers you
have here for the moment, there is no question that minority
voters voted overwhelmingly for Justice Gonzales, but Whites
didn't vote overwhelmingly against Justice Gonzales as
opposed to each of the other three candidates; correct?
A. Weld), 1 think ——
G. You simply don't know, because you didn't analyze that?
A. Well, no. I think that 36 percent is still a small
number when you compare it with 97. And that is what we are
doing here.
Q. I understand 36 is small compared to 97.
24
25
n | Ww
NJ
Brischetto — [ross (Lubbock Lo.’ - Hicks
A. We are also looking at the question of how would the
election have come out if it were held among Anglos, how
would it have come out if it were held among minorities? It
would be quite different.
GB. “Turn to L-6. 1 don't know if you need to look at it. I
just need to ask a question about 1t. That is where you draw
the SO percent combined minority district and then see where
the incumbent judges live. And you testified throughout the
proceedings about what it indicates for the judges to live
outside the area that 1s So percent minority. Does that
same, do those same conclusions hold if the judge that lives
outside is him or herself a minority?
A. Yes. I think that would say something about whether the
minority area is being, is removed, if you want, from the
judges, both geographically and perhaps politically. I think
it would say something about that, too,
Q. Isn't it fair to. assume that in most of these instances,
given your exhibit that you have for each county on
socioeconomic status of minority voters or minorities in the
county, that the more densely populated Hispanic or Black
areas or combined areas are likely to also be areas that are
lower in the socioeconomic scale in terms of housing, things
like that; is that fair?
A. I think that is probably right from our, just looking at
our socioeconomic analysis for the different racial ethnic
2 on fo okey BE BASS A a te tetera Ee
Brischetto — Cross {Lubbock Lo.) — Hicks c—38
groups.
Q. Isn't it fair to assume that whatever the ethnicity of
the judge, judges are, by and large, going to make more money
and be higher on the socioeconomic scale than the bulk of
people living in that area?
A. 1t certainly is a fact of life.
Q. Isn't it a fact of life that people tend to move away
from those neighborhoods if they get more money?
A. They probably do. I don't have any information on that,
but I would assume that would be correct.
Q. Referring here to your L-7, 1 think it would hold across
the board for all similar socioeconomic exhibits as I am
terming them, isn't it true that socioeconomic levels 1s a
very good indicator of i he preference in the political
science circles?
A. 1 think there is probably a correlation between party
preference and socioeconomic status, yes. That is a, that is
generally a finding in political science.
Q. How exciting a level of correlation is it?
A. I think it would be a pretty exciting level. “don't
know exactly what it ig, but 1 think it would be.
Q. Do you think also, or is it your opinion, based on your
knowledge of literature in this area, that socioeconomic
levels also tend to be an indicator of the fuse on policy
questions, public policy questions?
I OR A TROT STS TTI TN A
24
23
Brieschettc — Cross (Lubbock Lo.) —HiCks 2-39
A. I have, I would think that there are relationships
between views and socioeconomic status of the, of the
respondents who are asked about policy questions.
Q. That is people that tend to be, or people that are 1in
what is termed the lower socioeconomic strata tend to have
the same views on policy questions? I understand on some
policy questions they can vary.
A. Well, now, I have found in my surveys that there are
some issues on which lower socioeconomic Whites come out on
one side and Hispanics come out very differently. S50 it
doesn't hold on all 1ssues. There are some 1ssues that we
could say are really very much ethnic issues that Hispanics
and Whites of the same socioeconomic level differ
considerably on. Like, for example, whether or not you
should have English as the official language in Texas, or
whether or not we should spend more on bilingual education in
Texas. These were a couple of survey questions that I have
asked and exit polling I have done state-wide in Texas, and
found large differences, regardless of socioeconomic status.
But there are differences between ethnic groups.
Q. l.et me ask you about L.-B. That is your voter
registration profile. I think 1t was your testimony, I think
that your testimony is that the registration rates of
Mexican-American voters tend to be much lower than the voters
as a whole in Lubbock County; correct?
Brischetto — Cross {Lubbock Lo.) — Hicks 2-40
A. That is correct.
@. Doesn't that indicate toc you that using 30 percent
voting age population may not suffice to create what might be
called a safe district under the Gingles factor, first
factor, inilubbock County, that instead you should up the
population percentage?
A. Well, I am not sure that I would exclude persons who are
of voting age just because they are registered in drawing a
"safe district”. I mean, there is always the potential for
registration. In fact, our experience in working, I found in
working the last seven years with the Southwest Voter
Registration Education Project was, once single—member
districts were adopted, they would actually target those
areas and go in with registration differences and raise the
level of participation of Hispanics to an unprecedented high.
And win those, in order to win those elections because they
had candidates now and they had a reason for registering and
voting. So I don't think we should exclude population from
the drawing of our districts who are unregistered.
Q. So you think SO percent voting age population is a good
measure?
AR. That is what the courts seem to think, and I am
accepting it. I frankly think you could probably get by with
a little less than SO percent and still get a winning
district, but that is not what the courts said. And so, I am
24
25
Briechetto — Crosse (Lubbock iCo.) — Hicks 2-41
just simply following the standards that have been set forth
by the previous courts in drawing these winnable districts.
Q. In L-4, which is where you list the census tracts that
you put together to form the district, which by the way 1
think looks like an anvil.
A. Looks like a what?
RR. An anvil.
A. An anvil. Would it be a compact anvil?
Q. Does the same hold true in Lubbock County as it did in
Travis County, that is that there may be some double counting
between the listing of the Black voting age population and
the Hispanic voting age population, in that the Hispanic
voting age population includes non-citizens?
A. 1 believe that is true in the second count. I have not
checked to see whether or not there is double counting, I
believe there could possibly could be, just knowing the way
in which census reports generally generate. One could make a
computer run, though and separate out Black and Hispanic. H
don't know if that was done in this case. l don't think it
was.
Q. Just briefly to touch on the Jones versus City of
Lubbock case. That involved the non-partisan election
system; correct?
A. That's right, and the City of Lubbock.
Q. And the analysis you did and the conclusions you reached
24
23
Brischetto — Cross (Lubbock Co.) - Hicks c-42
were prior to the Gingles decision in 1986; correct?
A. That's right.
MR. HICKS: Pass the witness.
REDIRECT EXAMINATION (Lubbock Co.)
BY MS. FINKELSTEIN:
@. Doctor, when you were talking with Mr. Hicks about your
regression analysis in Lubbock County, which is Exhibit L-2,
vou said that Black and Hispanics came out on the same side
when you were discussing cohesiveness. Could you show us on
Exhibit L-2 which columns of your analysis show this point?
A. Yes. If you look at the General elections, if we look
at multiple regression analysis, and we have the estimates
for Anglos, Blacks, Hispanics and Blacks, right in the middle
of the page, it shows which side each of the groups came out
on. You follow that down to the next page, through the
Primary elections, and we get essentially the same patterns
in every race.
Q@. All right. You were talking just a second ago about the
Gingles 1 districts, and you said that you didn't think you
had to, that it was okay to look at population figures
because in your experience once single-member districts are
put into place registration often increases. Is that
basically the gist of the concept of voter apathy?
A. Well, yes. I mean, voter apathy, in my experience,
occurs when voters don't have a candidate that they consider
()
Brischetto — Redirect (Lubbock Co.) - Finkelstein c—4&
representing them, their own. So, they are less likely to
register, less likely to vote.
Q. I have here a copy of what I just marked as Plaintiffs’
Exhibit L-11.
MS. FINKELSTEIN: This is the ichart, Judge, of the
1980 census of population taken from the 1980 census
population and housing for Lubbock County that shows
citizenship data for people of Spanish origin, very similar
to the exhibit that we had in Travis County yesterday and 1
gave Mr. Hicks a copy of this chart yesterday. May I give
these to the clerk and to the witness?
THE COURT: You may approach the witness.
BY MS, FINKELSTEIN:
Q. Now, you have your calculator with you, don't you?
A. 1 do.
Q. Would you please look, find for me on this table the
number of voting age persons of Spanish origin who are not
citizens?
A. Yes. It is in the right column toward the bottom.
Eight Hundred Seventy-eight.
R. All right. And what percentage is that of the total
persons of Spanish origin of voting age? What is the total
number of persons of Spanish origin in Lubbock County.
A. Eighteen thousand four hundred four. I'm sorry, 22,892.
@. So what percentage of the total persons, Spanish origin
Brischetto — Redirect (Lubbock Coc.) - Finkelstein a-4&
persons of voting age in Lubbock County are not citizens?
A. Approximately four percent.
Q. Then would you please look with me at our 'Gingles I
map, our tables for Lubbock County, which are Exhibit L-47
A. Yes.
Q. And take the total Hispanic voting age population from
that chart, which is 10,626, and calculate the percentage of
non-citizens, Spanish origin non-citizens that would be 1in
that district.
A. Okay. Multiply, 3.8 percent is what I actually got of
non-citizens, times 3,626.
Q. What do you get?
A. Four hundred and eight.
Q. And then could you please subtract the 408 non-citizen
persons of Spanish origin who are voting age from the total
number of Hispanic people of voting age.
A. Ten thousand two hundred and eighteen.
Q. And is that more than 50 percent of the total voting age
population in the district?
A, Hell ——
Q.. Df owhtich is 25,6497
A. It is going to be less, because we have to add in the
Blacks yet, S50 percent.
Q. I'm sorry. You are correct. Would you do that, please?
A. It gives us 392.8 percent.
SEY RIP LE ETI SEAT TT EY
24
23
wh
Brischetto — Redirect (Lubbock Lo.) - Finkelsteln 2-4
R@. And then would you please add in the Black population?
There are 6,337 Blacks.
A. It would be 16,755 divided by 25,649, gives us 65.3
percent.
Q. So is it your conclusion that even if you subtract out
the Hispanics of voting age who are not citizens, 1t 1s still
possible in Lubbock County to draw a district where the Black
and Hispanic group of voting age is sufficiently large and
geographically compact as to constitute a majority of ‘at
least one single—-member district?
A. Yes, you can get 65 percent voting age population,
combining minority voting age populations.
N MS. FINKELSTEIN: I don't have any more questions on
MR. HICKS: I won't say how many questions, but Just
briefly.
RECROSS EXAMINATION (Lubbock Co.)
BY MR. HICKS:
Q. Dr. Brischetto, on Exhibit L-11, and really on all the
exhibits that are similar to this, the 'not a citizen' column
-=i"] mésorry, 1 will let you find it,
A. Yes.
Q. The 'not a citizen' column, is that self-identified?
A. 1t. 1s.
Q. That is, people doing the enumeration say I am not a
Tn ga ER i CNA ST SRE AT Le TE DL ah itn Soc
Brischetto — Recross (Lubbock Lo.) - Hicks 2-46
citizen?
A. Jt: le.
Q. And that tends to vastly under count the number of non-
citizens, doesn't 1t7
A. l would think that it would tend to under count. I Just
don't know by how much.
@R. You aren't familiar with the literature on that?
A. I am familiar with the fact that there have been studies
on that nationally.
RQ. What do they show?
A. It is, I don't recall the precise percentages, but they
show the fact that people tend to over report the fact that
they are naturalized. IT Shiv are foreign-born, they will
tend to over report the fact they are naturalized.
@. Do you have any estimate what the studies show
nationally as the IER 10 percent, 20 percent, in
terms of their underestimating non-citizens? By this I mean
the ‘not a citizen' column for Hispanics.
A. As 1 recall, 1 am trying to remember —— no, 1 don't
remember exactly. 1 think this particular study that 1 am
thinking of was not able to get it down to any local areas,
so I could not use any sort of adjustment on the local level.
But nationally, there is some over reporting of the fact that
people are, that is what they found, people that are not,
that are naturalized.
Brischettc — Recross (Lubbock {o0.) - Hicks c—47/
Q. Would you agree with me that typically City Council
races and State Representative races, especially when they
are opposed, are high profile, in fact much higher profile
races than State Judicial District elections?
A. Yes.
Q. And are you aware, and 1 think you are, in fact It think
you testified about it, that in Lubbock, prior to 1987, there
already were in place for [ity Council races single-member
districts and single-member districts for State
Representative races too?
A. Yes.
Q. How does that affect your conclusion, your testimony
about Exhibit L-8 and the upping of the participation rates
of minorities, voting rates.
A. Well, registration rates, is that what you mean”?
RQ. Yes.
A. Because that is what L-B speaks to.
@. Let me ask it this way. In '87 they were that low, even
after single-member districts had been created for State
Representative races and for City Council races, which you
testified are much higher profile races; isn't that correct?”
A. That's right.
MR. HILKS: I have no further questions.
A. Can'l answer that?
BY. MR. HICKS:
0 Nn
] ig
88
Brischetto — Recross (Lubbock Lo.) —- Hicks
QQ. Sure.
A. If you look, though, at registration, the registration
rate is relative to that of non-Hispanics. It 1s not as low
in some of the counties that we have found. Part of that may
be a reflection of the fact that there has been single—-member
districts implemented in registration drives and so forth
that accompanied them in Lubbock.
Q. For any of the counties that you have testified about so
far —- well, let me ask it the other way around. For each of
the counties that you have already testified about, there
already were in place, by 1987, single-member districts for
State Representative races; correct?
A. Yes. x
Q. Are there any counties about which you testified that
there weren't in place a form of single—-member district
elections for City Council races in 19877
A. 1 need to —-
gd. Let me try -—-
A. Look into that a little bit closer.
Q. You don't know the answer right now?
A. To check the cities.
Q. In Midland County, single-member district elections, a
mixed form, but some single-member districts were in place
for City Council elections; correct, by 19877
A. Yes.
2 Cm cr
-49 n Brischetto - Recross (Lubbock [o.) — Hicks
R. 1 don't remember the counties right now. Jefferson
County, are there single-member districts for either Beaumont
or Port Arthur, to your knowledge? Were there by 19877
A. By 1987, I believe for most major cities there have been
single-member districts of some form adopted. In some cases,
like the City of Dallas and Harris, we have mixed systems.
In some cases, we have pure single-member district systems.
I think that it is a mixed bag. You have to look St Bach
place individually and tell whether or not, what level of
which the minority group was represented and participated. I
think, too, we need to make some comparisons across time 1n
this light. 1 don't have them right at my fingertips, but
with regard to registration rates to see 1f those have
changed. All I simply concluded from this one is that 1t is,
Shere is still some room to go in terms of registration for
Hispanics in Lubbock County.
MR. HICKS: Pass the witness.
REDIRECT EXAMINATION (Lubbock Co.)
BY MS. FINKELSTEIN:
Q. Doctor, before we move on to Ector County, just let me
clean up one small point in Lubbock. Based on your ‘'Gingles
1' district map, can you tell us, do Blacks and Hispanics
generally live together in the same portions of Lubbock
County, or at least in this district?
A. From which map?
Briechetito — Redirect (Lubbock
Q. It is Exhibit L-4.
A. Yes. If we look at the L-4, which is the minority
district that was drawn, it is certainly a district which
both Hispanics and Blacks fall into, and therefore would be
very much in the same part of town, yes.
MS. FINKELSTEIN: Thank you. Mr. Hicks, do you ming
if 1 contimnde to Ector County?
THE COURT: It is 10:00. Why don't we get a cup of
coffee and take about 10 or 15 minutes. Then we will start
on Ector County.
(Brief recess.)
(Open Court.)
THE COURT: All right. You may be seated. Thank
MS. FINKELSTEIN: Judge, we will move now to Ector
THE COURT: Moving ever so swiftly to Ector County.
All right.
MS. FINKELSTEIN: Where we are proceeding on behalf
Hispanics and Blacks together, combined minority group.
DIRECT EXAMINATION (Ector Co.)
MS. FINKELSTEIN:
Doctor, look with me, please, at Plaintiffs! Exhibit £-
r=
25
Brischetto — Direct (Ector Lo.) - Finkelstein 2-51
Q. What does it show us about Ector County?
A. Well, it shows us the fact that Hispanics are about
almost 22 percent of the total population. Blacks, slightly
less than five percent. Combined minority of 26 percent,
total population of the county. Of the voting age
population, about 18 percent are Hispanic and four percent
Black. There are four judges elected in district court in
Ector County.
Q. Let's move on to Plaintiffs' Exhibit E-2, which has two
pages to it.
A. Yes.
Q. How did you decide which races to use?
A. I selected, there were no District Court contests where
Hispanics or Blacks run against Anglos. There were category
contests in which either minority group candidates run
against Anglos. The JP precincts split the City of Odessa,
and there were too few precincts, really, to analyze them in
a regression analysis. So I looked to the Appellate Courts,
and got Judicial races from the Appellate Courts, two from
the General, and I felt that I wanted to get more than two,
s0 my standard was to try to get at least three races. S01]
went to the Primaries and looked at Primary elections.
RB. What data set did you use?
A. Essentially the same 1980 as I had before, 1980 census
which was by, was by precinct for 1980, done by the Census
Brischetto — Direct (Ector Lo.) — Finkelstein e-Se
Bureau, as my demographic data on precincts. There were a
total of 24 out of the 31 precincts that I was able to
identify that had not changed.
Q. So you based your analysis on the precincts that had
stayed the same?
A. Yes.
fF. From 1980 up through 198387
A. That's right.
Q. And you did both a multiple regression and bivariate
regression in this county?
A. 1 gid.
Q. What was the purpose of this?
A. The purpose was to be able to separate out Hispanics and
Blacks and look at two groups to see if they were voting
cohesively together as a group. And the bivariate regression
would give me the overall picture of whether or not there was
polarization between Anglos and minorities.
Q. And did your analysis lead you to any conclusion about
whether or not Hispanics and Blacks are politically cohesive
in Judicial elections in Ector County?
A. Yes.
@. What is your conclusion?
A. I found that they are politically cohesive 1n each case
that I analyzed.
3. Doctor ——
SR PETE RETY Re
03
) Brischetto —- Direct (Ector Lo.) — Finkelstein c-
A. Except, except one, where they came out, Blacks and
Hispanics came out on the other side of the Gonzales race 1in
the 1986 Democratic Primary.
THE COURT: You know why that is, of course, in that
race?
A. 1 am not sure 1 know why, Your Honor, no.
THE COURT: 1 think 1 can explain it. Gibson, the
Gibson that was there is from Ector County. He was State
Representative for many years and ran for the Supreme Court.
And I would suspect your home county is probably going to get
the vote, and he certainly did get it in this particular
case. 1 don't think it had anything to do with cohesiveness
or not cohesiveness of the Blacks and Hispanics. l think
that is just a home-town vote.
A. It might explain why he got the Black vote.
BY MS. FINKELSTEIN:
@. Doctor, do you feel comfortable, even though your
statistical analysis for the 1986 Democratic Primary Supreme
Court Place 4 did not statistically show cohesiveness between
Blacks and Hispanics, are you still satisfied that generally
Blacks and Hispanics in Ector County are politically cohesive
in Judicial races?
A. Yes.
Q. And do you also have a conclusion based on exhibit,
Plaintiffs' Exhibit E-2, about whether in Judicial elections
r=
23
Brischettoc —- Direct (Ector Lo.) — Finkelstein 2-54
in Ector County the White bloc vote generally defeats the
combined minority's preferred candidate?
A. Yes.
G. What is that conclusion?
A. In most cases, the White bloc is large enough to defeat
the minority's choice. That occurred in three out of four
cases.
Q. And do you have a conclusion based on this exhibit about
whether, in Judicial elections in Ector, there is
polarization in voting patterns along ethnic lines?
A. Yes. That is very clear from the results. There 1s
racially polarized voting.
Q. Would you turn with me, please, to Plaintiffs' Exhibit
E~-37
A. Yes.
QR. This is our equity chart for the county. What does 1t
show?
A. It shows that, it shows that there are, of the judges
from 1985 to '89 in Ector County, there are no judges who are
minorities in any of those areas, either Black or Hispanic.
It shows under-representation in terms of the equity measure
of minorities, an un-representation, I guess you could say,
of minorities on the District Court. No representation.
Q. tet's move on to Plaintiffs’ Exhibit E-4. Can you tell
us from looking at this exhibit, do Blacks and Hispanics live
Brischetto — Direct (Ector Co.) - Finkelstein 2-55
together in this district that has been drawn?
a. Yes. I think we have a, we were able to draw a combined
minority district that included both Blacks and Hispanics,
and it is very much, very much compact and very much on the
same side of town.
Q. And from this exhibit, which includes the table and also
the map, do you have a conclusion about whether or not Blacks
and Hispanics of voting age in Ector County form a group that
is sufficiently large and geographically compact as to
constitute a majority in at least one single—-member district?
A. I do.
Q. What is that opinion?
A. They ane large enough to and compact enough to
constitute a majority in a single-member district.
Q. Let's flip on to Exhibit E-8. What does this show?
A. This shows the four judges who are currently sitting on
the bench in District Court, courts in Ector County. It
shows that of the four judges, none are Hispanic and none are
Black.
RQ. And moving on to Exhibit E-9, I am assuming that these
numbers in the far left-hand column of E-8B are the codes for
Exhibit E~-97
A. That's right. Those are the codes for the various
judges, placed them in their resident precinct on E~-9, on the
map .
Brischetto — Direct (Ector Co.) - Finkelstein 2-56
“ 1 GQ. What does the Plaintiffs' Exhibit E-9 show?
2 A. It shows none of them are from the predominately
3 minority area.
4 @. Okay. Let's move on to Plaintiffs' Exhibit E-11.
5 A. Yes.
6 Q. This is the socioeconomic information for Ector County.
7 Does this four-page exhibit lead you to any conclusions about
8 whether or not there are present effects of past
9 discrimination in Ector County?
10 A. Yes, there is. There are quite a hit of stratificetion
ii along racial and ethnic lines in Ector County. And I think
12 it reflects past and present discrimination.
13 @. Moving on to Plaintiffs' Exhibit E-12, what does this
{
14 show?
13 A. This shows us the voter registration profile for Ector
16 County for 1987, comparing registration level of Mexican-
17 Americans with their voting as a percentage of the voting age
18 population. It is 38 percent for Mexican—-Americans or
1S Hispanic voters, 38 percent of the voting age Mexilcan-
g0 Americans are registered compared to about 7O percent of non-
el Hispanics that are registered.
ec MS. FINKELSTEIN: I will pass the witness for this
23 county.
24 CROSS EXAMINATION (Ector Co.)
25 BY MR. HICKS:
>” a7
EO es KS SE
o
n | 8]
3
Brischetto - Lross (Ector Lo.) — Hicks
Q. Dr. Brischetto, looking at E-2, the second page where
you analyze two Democratic Primaries, that shows, does it
not, if you assume usually means more than 50 percent of the
time, that Whites do not vote as a bloc in Judicial races in
Ector County in the Democratic Primary so as usually to deny
victory to the candidate of choice of Hispanic voters?
A. Would you repeat your question, please”?
Q. 1 will try.
A. Is the question with regard to just Primaries?
QR. Focusing on the Primaries, just the second page. As to
the Democratic Primary in Ector County, and if you assume
that usually means more than 50 percent of the time.
A. 1 said at least 50 percent of the time.
Q. I am saying assume it means more than 50 percent of. the
time. That shows that Whites do not vote as a bloc so as
usually to deny victory to the candidate of choice of
Hispanic voters or Hispanic and Black voters combined in
Judicial races; right?
A. If you just look at those two elections, that would be
true.
QR. Those are the only two Primary elections you looked at;
correct?
A. Those are the only two Primaries, but I also looked at
some General elections.
Q. Now, I note here in comparing the Primaries that you
Brischetto — Cross (Ector Lo. — Hicks 2-58
testified, or ran your analysis on, in Ector County with the
Primaries you ran your analysis on in Lubbock County, that
you didn't run the analysis on the two runoffs in '86;5 1s
that correct?
A. That's correct. 1 tried to do that analysis, and as I
looked at the fact that precincts were combined in the
runoff, we just didn't have enough cases to analyze from a
regression analysis, to be able to do a regression analysis
on these runoffs. I think there were —-
Q. l1'm sorry.
A. I think there was, I think there were five precincts
that we actually had data on for the 1986 runoff.
Q. How many does 1t take to have enough?
A. My standard is that you need, I think, at least seven.
R. How many did you have in running the analysis here Of
the Democratic Primary in '867
A. In when?
Q. ‘86. The second page.
A. ‘847
BR. “Df E-2.
A. 1 had 24.
Q. Okay.
A. The problem with running on too few precincts 1s that
if, I guess theoretically if you had two precincts you could
always draw a straight line between them so you will always
Briechetto —- Lross {Ector Lo.) — Hicks eS
get a perfect correlation. What you want to do is try to
increase the number of points that you make your estimates or
the pattern on. 1 feel comfortable with seven. Probably
maybe even accept six, but anything lower than that is not, 1
don't feel comfortable with.
Q. Looking at the first page where you look at General
elections, you did not, 1 take it, do any analysis of the
Barrera-Mattox race in '86 for Attorney General?
A. No, 1 did not.
8. Why didn't. you?
A. Because that was not a Judicial election.
Q. You didn't have three races in the General election that
you analyzed?
A. Right.
RQ. At all?
A. I was still, you know, the instructions were, that we
agreed on —-—
Q. We, you mean your lawyers?
A. Lawyers, to look at Judicial elections. And except in
those cases where Jesse Jackson was thrown in because he was
very visible, in some cases a very visible and high profile
obvious sort of minority choice candidate, that we generally
ran Judicial elections and that was the basis for which I
drew opinions on each county. And Judicial elections were,
what we limited ourselves to in all of those cases.
Briechetto - Cross (Ector Lo.) — Hicks 260
% 1 Q. Well, I don't understand how you made the choice to move
2 from looking at one race in 1986 and one race in 1988 1n the
3 General Election to an opinion about whether there is
4 racially polarized voting in General elections in Judicial
5 District races in Ector County.
6 A. Okay. My opinion has to do with racially polarized
7 voting in looking across General and Primary elections.
8 Q. How did you choose when to mix them together to form
9 your opinion and when to separate them?
10 A. No . I do, when I form my opinion, look at both of them
it together.
i2 Q. You didn't in Bexar County, did you?
13 A. Yes, 1 did. Iv those cases in Bexar County, 1 didn't
14 have Primaries and so I didn't need to add on. I had
15 sufficient General elections to be able to just look at
16 General elections in Bexar County and draw some conclusions.
17 Q. Why can you tell something about General elections
18 behavior in Ector County from what happens in the Primaries,
19 Democratic Primary in Ector County?
20 A. Well, you don't tell something about General election
21 behavior from the Primaries. You tell something about voting
2c behavier of voters.
23 Q. Well, there is a hugely different group of voters
24 involved in the Primary than the General Election; isn't that
eS correct?
I TE AT ER A AT TE TT
no
| oc
ro
Briechetto: — Crosse (Ector Lo.) —-Hicks
A. That is why we look first for Judicial elections and
General elections to try to be able to cover, as it were, the
larger portion of the voters.
@. Wait, let me stop you there and ask you. I etil) don't
understand how you can take a subset of voters that have
fundamentally, is it fair to say fundamentally different
characteristics in Ector County in the Democratic Primary 1n
terms of racial mix and then say from the behavior of that
fundamentally different set of voters in the Democratic
Primary, I can form opinions about the behavior of a
different set of voters in Ector County in the General
elections?
A. Well, what I do is, 1 don't form an opinion about the
behavior in General elections from the Primary. I form an
opinion about voting behavior between Hispanics and Anglos,
looking at both General and Primary.
Q. Well, in the Democratic Primary, what you are really
looking it is -- I am kind of playing in your territory at
the moment —-- but what you are really looking at 1s the
behavior of Hispanic Democratic voters, and in this place,
Black Democratic voters, as opposed to Anglo Democratic
voters; isn't that correct”?
A. Yes.
RQ. And what does that tell you about the behavior of Anglo
Republican voters?
Brischetto - Cross (Ector Lo.) — Hicks c—&c
® : ; 1 A. 1t doesn't tell us anything about Anglo Republican
2 voters. It just tells us about, in the Primaries, it tells
3 us about the behavior of the Democratic voters, persons who
4 voted in the Democratic Primary.
5 BP. . ANG
b6 A. It gives us a —- but we are comparing the various ethnic
7 groups, and that is, that is the comparison that is made in
8 both the General and the Primary.
9 Q. Looking at your E-2, second page, where you look at
10 Primary elections, that analysis for looking at the behavior
11 of Anglo Democratic voters, which is all that is involved
12 there, shows that Anglo Democratic voters did not vote
13 sufficiently as a bloc so as usually, if usually 1s defined
fa 14 to mean more than 50 percent, usually to deny victory in the
15 Primary to the candidate of choice of Hispanic voters;
16 correct?
17 A. That is the conclusion that I reached there, because
18 minority choice did not win in that case.
19 Q. If that is so, then how does the fact that there is not
20 the kind of Anglo bloc voting in the Primary that you are
el trying to show or the lawyers are trying to show? How does
ee that tell you there is Anglo bloc voting in the General
23 Election?
24 A. I think I went over this. It does not tell you about
23 Anglo bloc voting in the General Election. It tells you
EE EE BT Teg eT ATE Foy SP Wy YT Eye
2&4
25
Briechetto — Cross (Ector Lo.) — Hicks c—-64
ves in that case. It doesn't preclude, of course, the fact
that there is polarized voting there, we just didn't find a
strong correlation between the ethnicity of the precinct and
how people vote. And they did come out differently.
Q. The question about whether there was polarized, racially
polarized voting, I assume the answer is yes, that doesn't
lead interluctively to the conclusion that Anglos vote as a
bloc so as usually to deny victory to the candidate of choice
of Hispanic voters; correct?
A. te I separated out that question to look at it to see
if their choice won or not.
Q. Now, this seems to be a point where I can get some
clarification on what this R square means, for me at any
rate. Judge Bunton observed that Gibson was a home boy when
he ran, and that, you seemed to agree that might account for
what happened in terms of the vote here. And the way I see
it here, your partial R for Hispanics in your analysis of
that race is .46. I haven't multiplied that out, it looks
like it is about 21 percent, R square would be 21 percent.
What does it mean to say that the R square is 21 percent? 1
think you have gone over it, but I can't quite grasp 1t.
A. Let me tell you, I focus on the Pearson R when I am
talking about our ability to explain using the ethnicity of a
precinct, in this case, combined minority case, when we are
trying to find out how much variation we can explain by the
Brischetto — Cross (Ector Lo.) — Hicks c-65
® 1 ethnic composition of the precinct, percent minority in a
e precinct. That correlation is .8. We have explained, 1f you
3 square that, 64 percent of the variation in how people vote.
4 Q. I'm sorry.
5 A. By looking at that.
6 Q. Where are you —-—
7 A. 1 don't think it is appropriate to look aft a particular
8 partial R and to square it come out with an analysis of how
S much we have explained by one particular group. There 1s a
10 multiple R, I guess, that combines the amount explained by,
11 uniquely by Hispanics and percent Hispanic and percent Black,
ie or the two of them in combination with one another. That
13 multiple R is also, is probably more appropriate to look at
14 if you want to talk about the regression analysis. When I
15 talk about explanation, I think the Pearson R 1s the
16 appropriate one to look at in terms of how well we have
17 explained the variation and how people voted, knowing what
18 the ethnic composition of the precinct is or the minority
19 percent of the precinct.
20 @. Let's look at the Pearson R.
21 A. Yes.
ec QR. For the '86 race in which Gonzales has one of his
e3 opponents, Mr. Gibson. That means you have explained,
24 whatever that means, 64 percent. That is what I can't
mw follow. Is the other 36 percent that is unexplained by your
Brischetto — Cross (Ector Co.) — Hicks e—-66
1 analysis, does that include things like Mr. Gibson was from
2 Ector County? That might, that might have accounted for
3 voters moving around a little bit different than they might
4 if he were from Dallas County? Ie that the kind of thing?
S A. 1t could. I can't tell you exactly what the variation
l=) that 36 percent that is unexplained could be accounted for,
7 because 1 haven't done the analysis. I would need a more
8 elaborate model that has those other variables that measure
9 like where a person, a candidate lives and so forth.
10 Distance maybe of the Esha idstas residence from the polling
11 place in each precinct. Those types of things I suppose we
ic could get measures of, but that is not the type of analysis
13 that I am engaged in here, and it is not the type that I
14 understand is appropriate for this type of case. I think
15 that was made, from my reading of the Gingles decision and
16 from what I have been told in discussion with lawyers, that
17 type analysis is not the sort that is appropriate.
18 Q. Well, when you say 64 percent is explained, 64 percent
19 of what is explained, and what does enpiained mean?
20 A. Okay. Explained’ is a term that just, we are using 1t
21 in, you can even put quotes around it if you like, 1t 1s
ee statistically we have explained or we have accounted for
23 variations. If you think of a scattergram --
24 @. Do you want to go up there and draw one?
23 A. I] would be glad to if you want me to.
Brischetto — (Cross (Ector [Lo.} - Hicks c—-&7
Q. It is up to Judge Bunton. It might help. It might not
either.
A. You probably have been through enough of those.
THE LCOLIRT: Draw the scattergram, that's fine.
MR. HICKS: No, that is okay.
THE COURT: Try it with words. Try it with words,
A. Okay. In an intuitive, let me give you an intuitive
understanding. It is how much we have really accounted for
statistically in our analysis, knowing the ethnic
composition, in this case, percent minority, in the precinct.
BY MR. HICKS:
Q. You are not saying that there is a causal connection?
A. No, 1 am not.
Q. Between the race of the voter and the-race of the
candidate; correct?
A. I am not trying to draw inferences about cause-effect
relationship as to why voters vote as they do. I am simply
describing a relationship here, and in a descriptive sense,
we can account for variation. If you look at the
scattergram, it is a measure of how much these points scatter
around a straight line that we call the regression line.
There is a big scatter around that, our R is low and we
haven't explained, accounted for with that straight line very
much the variation. 1T they fall right on the line, we can
explain 100 percent of the variation. If they fall perfectly
Briechetto — Croes (Ector Oo.) — Hicks c—-68
on the line. So, that is all we are doing, is statistically
we are accounting for the variation in how people vote. It
looks here like ethnicity or percent minority in the precinct
is a pretty good predictor, or pretty good for accounting for
how much, how people are voting.
$l. You mean it could, it could be that —— 1'm not saying it
happens, but it could be as far as your analysis reveals that
all the White voters in, say, an BO percent minority
precinct, or the ones that are voting for the minority
candidate, could be, you just can't look below that into that
level; right?
A. It is not likely that you would have that with an R of
that high, a .B White voters voting for a minority candidate
because there is a pretty clear pattern there 1n the
precincts of direct relationship. The greater percentage
minority in the precinct, the greater support for the
minority candidate in this case.
RQ. How many precincts did you use in your homogeneous
precinct analysis for Ector County?
A. Okay. For the 1986 Primary, we had three 80 to 100
percent minority precincts and nine 90 to 100 percent White
precincts. That was true in the '86 primary. In general, 1t
was 180 to 100 percent combined minority and eleven BO to 100
percent combined minority and eleven 20 to 100 White
precincts. In the '80 General Election, it was two 80 to 100
24
£5
Brieschetto —- Cross (Ector Co.) - Hicks c—69
percent combined minority precincts and ten 90 to 100 percent
White precincts.
Rl. On your Exhibit E~4, first page, on the voting age
population part of the chart for, this is just a technical
question, really, as though these weren't, the census Tract
14, I can't, you show B,474 Hispanic voters in a tract that
has 840 people. 1s that just a transposition of numbers? it
can't be right.
A. Well, no. Actually, if you notice, that is the total
for that. So I think there was an error in -- that is a
smaller tract, if you notice, from above, in total
population. Only 165 Hispanics in the total population
there, so 1t can't fe 8,400 in the voting age population. It
is, it is probably somewhat less than 165. The total 1s
given there correctly, but that particular number for that
Tract 14 1s obviously in error.
THE COURT: The way you get the correct figure is
add up all these and subtract them from 8,474; would that be
right?
A. Yeah, 1 think that would probably be right. Yes.
BY MR. HICKS:
Q. And to make sure lI understand another table, this is
Exhibit E-11, the last page of that states the persons and
families in 1979 in Ector County?
A. May I answer the Judge's question? That would be 132,
Brischetto - Lross (Ector Lo.) —- Hicks c—70
" 1 Your Honor. Okay. Go ahead and ask yours again, please.
2 Q. In Ector County, is it accurate to say that, if 1 am
3 reading these tables right, and that is what really I am
4 checking on, the last page of E-11 that there are more Anglo
5 families below the poverty level, in terms of raw numbers and
b6 not percentage, than Hispanic or Black families?”
7 A. Okay. In number below poverty, yes. Because there are
8 a lot more Anglos.
Q Q. That is the same for persons below, too; right, in the
10 next level?
11 A. Yes. 1 think the appropriate comparison, though, 1s
i2 percentage.
18 @. Now, E-92 of the exhibit I have chose different districts
14 than the district I have, that you have drawn in E-4. Do you
15 know why?
16 A. Okay. 1 think they were following that little —-- you
17 might have a way of describing it -- that little foot that 1s
18 sticking out there in 21. I guess that would be Precinct 21,
19 or is that a tract?
20 THE COURT: That 1s a tract.
21 A. 1 don't think there is any population in there. I] think
fe it. ig just: ——
A THE COURT: Yes, there 1s.
24 A. There 1s”?
3 THE COURT: That is the El Rancho addition.
i
-
EN RC Fl PER TTS GR NEN ERT a YT ER MI ER NT Te
CR i SS SS AY - { - / goad 3 7
AIST DE BT
TE TTS RR TST ERR TNT
Tid TAL ve
24
ed
mn
|
—
Brischetto = Lross (Ector Lo.) — Hicks
A. Okay. It is parity of Tract No. —— 1 am trying to make
this out —- it looks to me like it is part of Tract No. 20.
THE: COURT: It ie there on E~4, it is Just not, that
little foot sticking out is there. lL. think:it 1s part of, .1
don't know whether it is part of Tract 20 or 19, but it is
there. It is just not outlined.
BY MR. HICKS:
QR. Just to make clear, these tracts are census tracts from
the 'BO censusj is that correct, as configured in the '80
census”?
A. That's right.
Q. And the data of the 'BO census data on it?
A. Yes. That's right. By the way, it didn't affect my
conclusions about that exhibit.
Q. I didn't expect it would. Now, this will be the last
time I ask this, I think, so we won't have to go through it
again. Tell me if it is different for any of the counties,
but the way you do to calculate Hispanics of voting age
population under E-4, Exhibit 4, 1s the same in terms of
double counting, to the extent there is double counting, and
in terms of not taking into account the citizenship question;
correct?
A. As far as: 1 know, that is correct.
Q. That is throughout your analyses?
A. The same method was used throughout the analyses.
24
25
Brischetto — Cross (Ector Co.) — Hicks 7
Q. I won't read this. And in Ector County, are you aware
whether there are single-member school board seats, single-
member City Council Districts, single—-member Commissioners’
Court Districts? 1 think those are required by law. Single-
member State Representative Districts, and if they existed
prior «to ,198727
A. 1 am not sure 1 can answer all of those. I need to
check my records on some of them. l know, of course, that we
do have single-member Legislative Districts. I believe that
in Odessa, City of Odessa, there are single-member districts
for City Council.
THE COURT: There is both single-member and at
large, too, in: the City Council. The same for the school
board.
A. A mixed system.
THE COURT: And it was in 'B6 or seven.
BY MR. HICKS:
@. The Commissioners' Court is single-member district,
right, by State law?
A. Yes, by State law.
MR. HITKS: Pass the witness.
REDIRECT EXAMINATION (Ector Co.)
By MS. FINKELSTEIN:
QR. Unless there ies an objection to this, briefly, Doctor,
you have done calculations that subtract out the non-
I TT BETS YALA TSE ITE
Frpied CPT SAE v
£8
)
Brischetto - Redirect (Ector Co.) - Finkelstein e—"/
citizens, non-citizens of Spanish origin who are of voting
age population in two of the counties that we have already
covered. Is it possible to do the same calculation in this
county?
A. I could, ves.
Q. And if you did it, would the combined Hispanic and Black
populations of voting age discounting the non-citizen
Hispanics of voting age still be, would that group still be
large enough and geographically compact to constitute a
majority in a single—-member district?
A. I believe so.
Q. Would it come out to about S2 percent?
A. I believe so.
MS. FINKELSTEIN: Your Honor, if you would like, we
have an exhibit similar to the others.
THE COURT: Go ahead and introduce 1t.
MS. FINKELSTEIN: Okay. I will give Mr. Hicks what
has been marked as Plaintiffs' Exhibit E-13, and we move to
admit 1t.
THE COURT: E-13 will be admitted.
BY M5. FINKELSTE IN:
Q. Doctor, that calculation was based on the same
methodology that we outlined earlier for Travis County and
Lubbock County, wasn't it?
A. Yes.
Brischetto — Redirect (Ector Lo.) — Finkelstein 2-74
1 MS. FINKELSTEIN: Mr. Hicks, any questions on that?
e Since Mr. Hicks has no questions, I will move on to Midland
3 County, which is in the same exhibit book as Lubbock and
4 Ector Counties.
or THE COURT: And you are representing both Hispanic
b and Blacks in Midland County?
7 MS. FINKELSTEIN: You are right, Judge.
8 DIRECT EXAMINATION (Midland Co.)
9 BY MS. FINKELSTEIN:
10 Q. Doctor, what does Plaintiffs' Exhibit M-1 show?
11 A. M-1 is the Midland County profile of the population,
12 shows about 15 percent Hispanic, slightly less that Q@ percent
i3 Black. And total population about 12 percent Hispanic in the
£ 14 voting age population, about B percent Black. In 1980, there
15 are three district judges elected in Midland County.
16 QR. Let's turn, please, to Plaintiffs' Exhibit M=2,
17 A. Yes.
18 QR. Is this your analysis of polarization, cohesiveness and
19 White bloc voting in the Midland County Judicial election?
20 A. Yes.
21 @. How did you decide which election to look at?
Ff A. Well, there were no district court races pitting Anglo
e3 against minority candidates. There were no County Court at
24 Law races which Anglos and minorities ran against each other.
eS There was one JP race that includes the entire City of
ET BT TE TA I TNE I TR TY fT SE TE (TTT Ee in Elk $e A PA ER el : : YRS pi
24
25
Brischetto - Direct (Midland Co.) - Finkelstein e-75
Midland that involved a minority candidate against a White
candidate. This was in 1986 for JP Precinct Place 1. And
then there was, I went on to expand that further by getting,
let's see, we have Appellate Court races, Supreme Court in
1986 and 'BB.
Q. And why did you stop with these three General elections?
A. Because, as l indicated before, if I had three General
elections that would be sufficient, I think, and that 1s what
we have got here.
Q. Just for the record, this JP election in 1986 was
between Ms. Watson, who is a Black, and I think 1t was Mr.
Jones, who 1s an Anglo. Ms. Watson is the same Ms. Watson
who testitiad vesterday. What kind of data did you use when
you analyzed these Midland County elections?
A. I used essentially the same sort of data that I used in
Ector County. That is, 1980 precinct data, and I looked at
precincts that had not changed.
Q. How many precincts did you have that remained the same?
A. There were 11 precincts in 1986, 10 in 1988.
Q. And out of the total of how many?
A. Thirty-six.
Q. What is the -- I'm sorry, you answered that. Do you
have a conclusion about whether or not Hispanics and Blacks
in Midland County vote cohesively in Judicial elections?
A. Yes. 1 think we have some evidence here that the
Brischetto - Direct (Midland Co.) - Finkelstein 2-76
combined minority percentages are so high that we do have
cohesiveness between the two groups.
Q. Did you deo any other analyses that confirmed this?
A. Yes. 1 was able to obtain some maps of Midland County
by bloc, and we drew, were able to draw lines configuring
precincts from using census bloc data for the precincts
appropriate for that particular year. And we were able to
boost our size of our sample number of precincts up to 22 in
1986 and 23 in 1988. I did an additional analysis on those
23 precincts and 22 in '86, and in that analysis 1 separated
out the various groups of Blacks and Hispanics, did a
multiple regression as well as a bivariate regression
analysis. In that analysis I was able to show that Hispanics
and Blacks indeed, when we look at them individually, were
very much cohesive in all three races.
@. So that confirms your conclusion that you reached from
Plaintiffs' Exhibit M-27
A. Yes, 1t does. And our correlations actually did not
change much, in fact, went up slightly in the 1988 race,
stayed exactly the same overall Pearson R. In the '86
election, they were .96, stayed the same in those elections,
and in '88, it jumped from .89 up to .96.
Q. Does Plaintiffs' Exhibit M-2 lead you to any conclusion
about whether in Judicial elections in Midland County the
Anglo bloc vote is generally strong enough to defeat the
Brischetto - Direct (Midland Lo.) - Finkelstein c-77
h 1 preferred candidate of the combined minority in the county?
? A. Yes. In each case, the combined minority choice lost,
3 and so I concluded that the Anglo bloc vote was sufficient,
4 given this polarization, it was sufficient to defeat their
S preferred candidate.
6 Q. And does Plaintiffs’ Exhibit M-2 lead you to any
7 conclusion whether in Judicial elections in Midland County
8 there is polarization along ethnic and racial lines?
Q A. Yes. I think there is very clear evidence of
10 polarization, correlations are very high, .96 in each of the
11 three races, after we analyzed the more complete precincts,
ie and the Hispanics and Blacks came out on one side 1n the
i3 election and the Anglos on the other side by large margins.
14 I would have to say the groups are very polarized along
15 racial, ethnic lines.
16 Q. let's look at Plaintiffs' Exhibit M-3, which 1s the
17 equity chart. What does this show us about Midland County?
18 A. This shows that of three district judges sitting in
19 Midland County from 1985 to 1989, none of those were Black or
20 Hispanic.
21 Q. Let's ‘move on to Plaintiffs' Exhibit M—-2.
ee A. Yes.
23 Q@. Can you draw any conclusions from this table and the map
24 attached to it of whether or not the combined Black and
eS Hispanic group of voting age in Midland County 1s
TE PRN I SH SAT NE Ye TSE RTI NT 2 WA EY
Brischetto — Direct {Midland Lo.) — Finkelstein =Z—78
* 1 sufficiently iota and geographically compact to constitute a
g majority and at least one single-member district?
3 A. Yes, I did.
4 . ‘Whatiis your conclusion?
3 A. It is possible. We were able to draw a 350 percent, 36.4
6 percent combined minority district voting age, from voting
7 age population data.
8 QR. Just to anticipate Mr. Hicks question, have you also
Q done the same kind of calculation that you did in Lubbock and
10 Travis Counties to take account of the fact of non-citizen,
11 non-citizens Spanish origin who are of voting age”
12 A. Yes.
13 R. And could you still draw a district where, taking out :
“34 those non-citizens, the Black and Hispanics, those non-
15 citizens of Spanish origin, the Black and Hispanic grqup was,
16 of voting age, was sufficiently large and geographically
17 compact to constitute a single-member district?
18 A. Yes.
19 MS. FINKELSTEIN: Judge, would you like --
20 THE COURT: VYes, I can't wait.
21 MS. FINKELSTEIN: 1 wil) give @ copy to Mr. Hicks,
ee and ‘I have marked it as Plaintiffs’ Exhibit M-15. We would
£3 like, we request that it be admitted.
24 THE COURT: It will be admitted. 1s M-15°a gun, or
2s is that the M-167
Brischetto - Direct (Midland Co.) - Finkelstein c—79
MS. FINKELSTEIN: I don't know the first thing about
guns, Judge.
BY MS. FINKELSTEIN:
&. Doctor, what is Plaintiffs' Exhibit M-57
A. M-S is a table summarizing an analysis that I did for
the Midland Independent School District case which shows the
results of ecological correlation regression analysis on
Midland ISD races, comparing the voting for minority
candidates with the percent, in this case, percent White of
the voters in the precinct.
MR. HICKS: May I have the same running objection to
this kind of testimony?
THE COURT: You sure tay. I am familiar, however.
These statistics I have already seen in another contest.
MR. HICKS: I suspect you may be.
THE COURT: You have your objection to all of M-35 or
any testimony relating thereto.
BY M5. FINKELSTEIN:
RQ. Doctor, do you know, was there a remedy, was there
testimony, was this exhibit prepared in relation to your
testimony in the LULAC versus Midland ISD case in this Court?
A. Yes, 1 think 1t was.
Q. And do you know, was there a remedy implemented in that
case”?
A. Yes, there was.
m oO
Brischetto — Direct (Midland Lo.) —- Finkelstein =
R. What was the remedy?
A. The adopted the single—-member districts in the Midland
Independent School District.
Q. Do you know what happened after these districts went
into place”?
A. Blacks and Mexican—-Americans were elected te the school
board, and now, there is a Black that 1s school board
President, I believe.
Q. Were those, the two minority candidates, elected from
the single-member district?
A. Yes, they were elected from single-member districts.
Q. Does your analysis in the Midland ISD case corroborate
your analyses that you did for this case?
A. Yes, it corroborates it very well. -
Q. Would you please turn with me to Plaintiffs' Exhibit M-
A. Yes.
@. And what does that show?
A. M-8 is incumbent judges in Midland County, just a list
of the three, their voting precinct and race or ethnicity.
All three of them are White. There are no Spanish surname or
Black judges.
a. And does Plaintiffs' Exhibit M-92 show the residences of
those three judges?
A. I believe so, yes.
Brischetto - Direct (Midland Lo.) - Finkelstein c—81
QR. And what else does it show us about Midland County?
A. It shows tracts that are 50 percent or more combined
Black plus Hispanic in population. It shows that those
judges are residing outside of that area.
Q. What is Plaintiffs' Exhibit -- well, Plaintiffs’ Exhibit
M-13 shows the socioeconomic patterns for Blacks, Hispanics
and Anglos in Midland County?
A. That's correct.
Q. Can you draw any conclusions from this four-page
exhibit?
A. Well, I would have to say there is stratification along
racial and ethnic lines in Midland County, as we have found
in other counties. And I think that is certainly something
which is apparent from the figures, both from the—education,
income, occupations and poverty rates.
0. Let's move on to Plaintiffs' Exhibit M-14. What does
this show us?
A. M-14 shows the voter registration profile for Midland in
1987. There was 30.5 percent Mexican-Americans of voting age
registered and 74 percent of non-Hispanics of voting age
registered.
MS. FINKELSTEIN: I pass the witness for this
county.
CROSS EXAMINATION (Midland Co.)
BY MR. HICKS:
24
25
Brischetto — Crosse (Midland [Lo.) — Hicks 2-82
@. Dr. Brischetto, can you tell me on M-2 the party of each
of those candidates? Is the Democrat the first one listed
each time?
A. Let's see, yes.
Q. And except for the third race, the Republican 1s the one
listed, the second one listed each time; right?
A. Yes.
Q. And than in the third race, Mr. Howell, Judge Howell 1s
a Republican; correct?
A. That's right.
Q. And the other candidates are of another party?
A. That's right.
Q. Why did you not do any primary, Democratic Primary
analysis here as you did in Ector County”?
A. Because we had three General elections.
@. And do you know what area is covered by Place 1 JP that
you analyzed?
A. Yes. Let's see, JP 1 includes the entire City of
Midland, I believe.
Q. Would the fact that, if you assume it is true, that in
1986 in the Attorney General's race between Hispanic
Republican candidates and Democrat, Anglo Democratic
candidates for Attorney General, I don't know if you
mentioned that, that the Hispanic candidate got more than 60
percent of the White vote and won more than 60 percent, won
mn
| @®
SN
)
Brischetto — Cross (Midland Lo.) — Hicks
the county by more than 60 percent; does that change your
conclusion at all about whether there is racially polarized
voting in Midland County?
A. No.
RQ. Why does that not affect your opinion?
A. Well, because my decision is based on the question of
whether there is polarization along ethnic lines, are the two
groups voting differently. And I think I would have to look
at the analysis to see how the two groups were voting, Anglos
and Hispanics, Anglos on one hand and Hispanics and Blacks,
or minorities, on the other hand, with respect to that race
to be able to draw some conclusions about whether they are
polarized.
Q. The races for City Council and school board in Midland
are non-partisan races; correct?
A. That's right.
Q. And in the last election for City Council, are you aware
that an Hispanic candidate won the at large race, an Hispanic
candidate won the at large race”?
A. I'm sorry, 1 did not analyze that. I don't know.
MR. HICKS: Pass the witness.
THE WITNESS: Your Honor, may I have a cup of water?
THE COURT: This is vintage stuff. No, 1 will let
you have it. Are we going to go down I-20 now?
MS. FINKELSTEIN: 1f that is the road to Tarrant
-84 n
Brischetto —- Lross (Midland To.) = Hicks
County.
THE COURT: To Tarrant County. Okay. Have you been
to Fort Worth?
M5. FINKELSTEIN: Yes, I had an Appellate argument
there.
THE COURT: You have been there. All right.
DIRECT EXAMINATION (Tarrant Co.)
BY MS. FINKELSTEIN?
Q. Doctor, the Tarrant County exhibits are the first set of
exhibits in Book 2.
THE COURT: And in Tarrant County.
MS. FINKELSTEIN: We are proceeding on behalf of
Blacks only.
BY MS. FINKELSTEIN:
@. Doctor, do you have the exhibits?
A. Yes.
Q. Would you look with me, please, at Plaintiffs' Exhibit
TA-17
A. Yes.
Q. What does this show?
A. That shows the population breakdown by race in Spanish
origin. About eight percent of the total population of
Tarrant County is Hispanic, about 12 percent Black. Voting
population slightly less than seven percent are Hispanic and
slightly more than 10 percent are Black. Twenty-three judges
Brischetto — Crosse (Midland Co.) — Hicks c—-B5
elected to the District Court system in Tarrant County.
D. let's turn, please, to Plaintiffs’ Exhibit TA-02. What
is that?
A. These are the regression and homogeneous precinct
analyses that I did on elections in Tarrant County.
Q. Would you please tell us, Doctor, about your data set
for Tarrant County?
A. Yes. Tarrant County, I used essentially sort of the
approach that I had in the other counties of looking at 1980
census data configurations of precincts for 1980 done by the
Census Bureau. And then trying to track to see if any of
those precincts did not change over time, that I could use
the more current elections. Unfortunately there were not a
lot of precincts that did not change, the precinct boundaries
changed very frequently in Fort Worth, I came up with 3&4
precincts in 1986 and 30 in 1988 which had not changed their
boundaries. 1 essentially used that in this particular
analysis. Lacking any more data set or more complete data
set, I must say, I sought a more elaborate data set and was
told that the State had a more elaborate data set. I learned
from the depositions, 1 attempted to get them and only
yesterday was I able to get their report on that data set. I
actually asked for the data itself so I could analyze their
data sets to come out with similar results. And 1 still have
not gotten the data set of actual data by precinct, but 1 do
24
25
Brischetto — Cross (Midland Co.) - Hicks c—86
have their reports.
THE COURT: Just a moment.
MR. HICKS: Well, I just, 1 suppose I can talk about
this on cross examination.
BY MS. FINKELSTEIN:
Q. You just said that you got this report yesterday; 1s
that correct?
A. That's right.
@. And did you review these reports?
A. 1 cid.
Q. Did you prepare a table based on these reports?
A. 1:did.
MS. FINKELSTEIN: Your "Honor, 1 am giving to Mr,
Hicks right now what we have marked as Plaintiffs' Exhibit
TA-09. May I give that to the clerk and also to the witness?
THE COURT: You may.
BY MS. FINKELSTEIN:
@. Doctor, I have just given you what has been marked as
Plaintiffs' Exhibit TA-09. Is that the table that you just
mentioned?
A. Yes. I prepared that this morning. Late last night,
early this morning.
Q. And are there any corrections that need to be made to
it?
THE COURT: Were there two Rosses running in the 1986
Brischetto — Lross (Midland Lo.) - Hicks c—-87
Democratic Primary for criminal court? 1 have got a Ross
here and I have got a Goldfeather, Ross, Pounds and Clark.
A. Let me check that. I may have an error there. I
believe the data -—-—
MS. FINKELSTEIN: May I give this copy to the
Doctor?
THE COURT: You may.
A. You have it. This is what 1 used, Your Honor, to
prepare the summary table there, actually a report on Tarrant
County elections prepared by the plaintiffs, or the
defendants ' expert. And I am checking that to get the race.
BY MS. FINKELSTEIN:
Q. Doctor, is that exactly what Mr. Hicks gave us
vesterday?
A, This is what he gave us. A portion of it, 1 pulled off
the elections where Blacks ran against Whites, and those are
the ones that I summarized in this summary table. The answer
to the Judge's question is, it is Ross, the Black against
Gilfeather, I have got Goldfeather there. It was very early
in the morning, 1:00 a.m. when I did this. Pounds and Clark,
S0 you can scratch Ross out and correct the spelling on
Goldfeather, G-1-L-F-E-A-T-H-E-R.
THE COURT: Ross was Black?
A. Roses was identified as Black in this exhibit, yes.
BY MS. FINKELSTEIN:
24
eS
Brischetto — Cross (Midland ({o.) - Hicks c—88
Q. And, Doctor, are all the yes' and no's correct on your
table?
A. On the one that you just handed me, TA-097
Q. Yes, sir.
A. 1 believe they are.
Q. Okay. I think that there is one other correction. 1f
we could go back to TA-02, which is the table which you
prepared, are all the yes' and no's on that table correct?
A. No. On the 1988 Democratic Primary for President, Jesse
Jackson did not win. He was the Black choice and he did not
win in the Tarrant County Democratic Primary, so that should
be changed, the very last cdlumn, that says the Black choice
win, should be changed from yes to no.
@. And that 1s Just a typo?
A. That was.
BR. Looking at your, at Plaintiffs' Exhibit TA-2 and
Plaintiffs' Exhibit TA-9, what is your conclusion about
whether in Tarrant County Judicial elections, Blacks vote
cohesively?
A. 1 would have to say that Blacks do vote cohesively as a
group, very strongly cohesively as a group. We look at the
column that says Black votes, we can see in all cases, both
in my analysis and in Dr. Taebel's analysis, TA-09, that the
Black percentage is high, and it is high in all but one case,
the one for Ross, the Democratic Primary. It is 37 percent,
24
eS
Brischetto — Tross (Midland Co.) — Hicks c—89
let's see if 1 have that right. Yes, those are from his
analysis. And that, too, would be considered cohesive.
MS, FINKELSTEIN: Your Honor, my co-counsel has just
pointed out to me that I misnumbered that exhibit, that we
already have a TA-09, which 1s the socioeconomic profile.
So, if you would bear with me, could we renumber this?
THE COURT: Sure. Tell me what the number 1s going
to De.
MS. FINKELSTEIN: Plaintiffs' Exhibit TA-10.
THE COURT: Any reference to TA-% should be TA-10.
TR-10 will be admitted.
MR. HICKS: Excuse me. Did you say you admitted TA-
THE COURT: Yes.
MR. HICKS: May I express an objection?
THE COURT: Yes, sir.
MR. HICKS? I object to this on the grounds that 1t
was just disclosed to us this instant, as a matter of fact,
not within the deadlines the Court originally set. Certainly
not in June when the plaintiffs said they were ready to try
the case. And 1 have not had a chance to ask questions about
it in deposition or do any discovery on 1t. So on that
ground, 1 object.
THE COURT: My understanding is that this came from
information that was just furnished last night by the
Brischetto — Cross {Midland Co.) - Hicks c—90
defendant. 1 am going to admit it. I will give you a lunch
break to figure out how many questions you want to PE about
it,
By MS. FINKELSTEIN:
Q. I'm sure Dr. Brischetto is looking forward to that.
Doctor, when you put this table together, did you just take
numbers from Dr. Taebel's analysis and put them into this
automobile?
A. I simply took the results from his Pearson R's,
estimates for Blacks and the estimates for Whites, put them
into this summary table. The last two columns, are the
ethnic groups polarized and did the Black choice win, my own
answers to those questions after reviewing his data.
Q. Doctor, aside from the differences in the data set, 1
noticed that you and Dr. Taebel have analyzed some of the
same elections. For example, you both, in Table TA-92 and
TA-10, you both analyzed the 1986 General elections for
Criminal District Court Place 4. You came out with a partial
R that is a considerably different number from the number
that Dr. Taebel came out with. Can you explain why that
might be?
A. Well, Dr. Taebel's R's are Pearson R's, they are
bivariate correlation relating to percent of Black 1n a
precinct to the percent of voting for that particular
candidate, in this case, it would be the Black candidate 1n
Es 4
re di n Brischetto — Lrosse (Midland Loc.) = Hicks
each case. My correlations are partial R's because I removed
the effects of percent Hispanic from the analysis in the
multiple regression analysis. And that had the effect of, in
fact, showing that there was a stronger relationship between
percent Black and the vote for the candidate, Black
candidate. In some cases, it 1s a reverse relationship, but
still a strong one minus, and that is apparent from, from my
results, my R's which are higher. I note that there 1s a
slight correction here. I have a partial R with Salvant of
«B87. What that is, is the correlation with percent Black in
the precinct. That should be a minus .87.
Q@. Thank you. That was going to be my next question. All
right. You made a conclusion based on these exhibits about
whether or not Blacks in Tarrant County vote cohesively. Can
you tell us from these exhibits, can you conclude whether
generally in Judicial elections in Tarrant County, the White
bloc vote is sufficiently strong to defeat the choice of the
Black community?
A. Yes, I think that 1s true.
R. And could you tell us, based on these exhibits -- do you
have a conclusion about whether or not there is polarized
voting along racial lines in Tarrant County Judicial
elections?
A. Yes, there is clear evidence of polarized voting from
these exhibits, particularly if we look at TA-10 where we
Bricchetto — Crosse (Midiand Co.) — Hicks
have a more complete set of precincts.
@. And could you tell me, would you feel confident of
those, of those three conclusions about cohesiveness, Anglo
bloc vote and polarization without regard to your analysis of
the 1988 Presidential Democratic campaign in which Jesse
Jackson was a candidate?
A. Yes. The Jesse Jackson Presidential Primary shows very
strong polarization, obviously. But even with that, I think
we have to say that the same conclusions can be reached from
my reanalysis of Dr. Taebel's data.
Q. Thank you. Let's move on to Plaintiffs' Exhibit TA-3.
THE COURT: Let's not at this time. We are going to
take our noon recess. The reason that we are quitting early
is that I must make an address on the Judiciary and the
Constitution. You all don't know this, but this 1s
Constitution Week. So I am making a little talk to the
combined chapters of the Midland DAR. I am going to talk on
the Judiciary. And they meet out at the Williams Club, which
is out here past the ball field, and I have to drive out
there. So we are going to take a recess right now. It 1s
11:38. 1 hope to be back by 1:30, by 1 am sure that the
questions they will ask may prolong the meeting past my 1:00
deadline. But we will start, if you are here and 1 am here,
a little bit before 1:30. And with that, a little bit of
trivia. OBive me the name of the singer who the DAR refused
=
25
to listen to? An answer on both sides of the room, let the
record reflect. Thank you very much. Stand in recess.
(Noon recess.)
(Open Court.)
THE COURT: 1 apologize for the 14 minute delay, but
it was such a great speech to the DAR that, you know, they
kept on, kept on applauding and hugging my neck and shaking
my hand. It just took a little bit longer. Then when 1 got
back, I had a call from Judge Belew. I thought 1t was very
appropriate, since we are on Tarrant County, and that 1s
where Judge Belew lives. Judge Belew was giving me a hard
time, stating that he read in the Fort Worth Star Telegram
that we started this case yesterday and that I had been on 1t
for a day and a half and he supposed I was getting old and
senile, I just wasn't moving these files quick enough and he
had to give me a hard time.
(Off the record.)
MS. FINKELSTEIN: Judge, we just want to make one
correction before we start on Tarrant County, finishing the
Tarrant County testimony. In the Ector County exhibits, we
went back and checked the original census maps and the map
that is drawn in E-4 is correct, and the map in E-9 with Mr.
Hicks ‘=m
THE COURT: El Rancho Addition is not part of it.
MS. FINKELSTEIN: The foot is not part Of it. Also,
24
25
I want to mention that Ector and Midland Counties, we have
one witness we would like to call out of order, Sandy Torres,
who is an attorney who practices in both Midland and Ector
County, and he is out of the country. He 1s in Ireland. He
has been deposed.
THE COURT: He is where?
MS. FINKELSTEIN: He 1s in Ireland.
THE COURT: Okay. Business is good for lawyers out
here, you understand.
BY MS. FINKELSTEIN:
DIRECT EXAMINATION (Tarrant (o., cont.)
BY MS. FINKELSTEIN:
Q. Doctor, let's return to the Tarrant County exhibits, and
start with the equity chart which: is Plaintiffs' Exhibit TA-
3. What does this tell you about Tarrant County? Have you
found that?
A. The equity chart. It tells me that out of the Black,
the Black judges number three for each year from 1983 to '88.
And then in '89, dropped down to two. They were
approximately 14 percent, 13 percent in 1988 and nine percent
in: 198%, of the judges in the District Court system. And 17
we compare that with the population, Black population for
1980 census, we find that there is equity about the same
level representation, about two to three points more, on the
Judiciary until 1989 where we lost a Black judge and dropped
Brieschetto — Direct (Tarrant Lo., cont.) — Finkelsteing—95
“ 1 down to a negative three.
| c RQ. So things are getting worse in Tarrant County?
3 A. Well, in that last election in '89, they did, ves.
he Q. And is that at the same time that the Black candidate
S Davis was running for the Criminal District Court Place 27
6 A. Yes. It was Davis who lost.
7 0. Let's move on to Plaintiffs' Exhibit TA-4., What does
8 this show?
Q A. I note that Davis lost after being appointed by Mark
10 White. So he lost in 1988 in a contest.
11 BD. ‘What is Plaintiffs' Exhibit TA-47
12 A. TA-4 is the two 'Gingles 1' districts that we were able
13 to draw that had an average of B89 percent, and 77 percent :
14 Black population, 89 percent total Black population and 77
1S percent voting age Black population.
16 Q. Did you conclude from this exhibit that the Black
17 community voting age in Tarrant County is sufficiently large
18 and geographically compact enough to constitute a majority in
iS at least one single—-member district?
20 A. Definitely. We could get two good size Black districts
el in termes of Black population concentration in Tarrant County.
22 QR. What does Plaintiffs' Exhibit TA4-5 show?
£3 A. TA-5S shows the list of the 23 judges that are now
24 sitting on the bench in the district court system in Tarrant
£5 County.
SE BE TS FE Ta Tm FO TY FE TR TE
7 BEER IVS Ger TF SN BA YG NIE J rg TE TX YT 4 TT
brs J Sty hey ht 3, AA
Brischetto — Direct (Tarrent Lo., cont.) — Finkelstein2—%&
RD. Ond let's move on to Plaintiffs' Exhibit TA-6. Hhat
does that show?
A. TA-6 is a plotting of those judges, the areas they live.
Only one of the judges —- by the areas in which, the
precincts they live in. And comparing that with the
population, the area in Tarrant County that exceeds 50
percent Black population, which is outlined there on the map,
it is only one of the judges that lives 1n that area, and
that is Mary Ellen Hicks, who is a Black judge.
MS. FINKELSTEIN: Your Honor, I note that Mary Ellen
Hicks is a plaintiff 1n this case. Also, she will be our
next witness.
BY MS. FINKELSTEIN:
RB. Let's move on to, let's skip TA-&{a) and move on to,
let's move on to TA-92, which is the socioeconomic profile.
What conclusion can you draw fear this profile?
A. Dkay. TA-9 .is the socioeconomic profile, and 1t shows
the inequalities that exist along racial ethnic lines 1n
education, income, occupation and poverty. And it shows that
there are, for Blacks, there is a lot, there is a large
difference between Blacks and Anglos with regard to those
characteristics. In each case, whatever measure we look at,
in fact, if we look at the poverty rate, the poverty rate
among Blacks is more than five times the poverty rate among
Anglos. It indicates that there indeed are some lingering
Brischetto - Direct (Tarrant Lo., cont.) —- Fainkelstieine~%7/
1 effects of discrimination in the past and present
Fs, discrimination is probably also reflected in there. It also
3 indicates that minorities may have a diminished ability to
4 participate fully in the electral system because of their
5 lower status and stratification that exists in that
6 community.
7 MGS. FINKELSTEIN: Your Honor, (I1:'will note ‘that in
8 Plaintiffs' Exhibit TA-7, I believe that there in one
9 mistake, which is that I believe that the election for the
10 233rd Court involved a race with an Hispanic against an
11 Anglo, so it should not be in there. I may not be correct on
12 this, but I believe that 1s correct.
1S THE COURT: TA-7, 1986, the 233rd shows there was an
14 Anglo winner and not Si rarity.
15 MS. FINKELSTEIN: I believe that was an Hispanic,
16 not Black.
17 A. Yes.
18 MS. FINKELSTEIN: I will pass the witness.
19 THE COURT: Mr. Hicks?
20 CROSS EXAMINATION (Tarrant Co.)
21 BY MR. HICKS:
22 Q. Dr. Brischetto, first 1 would like to turn to what you
23 were talking about at the very beginning in connection with
r= TA-10, what has been admitted as TA-10. That is the exhibit
295 that you presented to us this morning?
Ep oF AA LTA oe MSR CO AES am LA ae Pin a Se TS ee Se em So Sh SDE ue Rt a
Hicks £-58 [oJ
] 3 i [4]
] > 5 O | Brischetto — Cross (7
A. Yes.
Q. I think you testified that the State did not give you
some kind of information until last night. It is correct,
isn't it, that vour lawyers did not give you that information
until last night?
A. l1i:cid, The lawyers did not receive and did not,
therefore, give to me the data set that was requested.
QR. Your lawyers?
A. And it was not given to them, too.
Q. Until when, do you know when?
A. It was not given at all. What we received that this was
based on was not the data set, but rather the summary report,
the report that summarizes, or the analyses that were done by
the defendants' expert.
Q. Let's look at — 1'tmh sorry.
A. That was received, those reports were received
vesterday.
@. Yesterday morning; correct?
A. Right. About 12:10 a.m.
Q. That 1s Dr. Taebel's information; correct?
A. His reports, yes, on this.
Q. And the first three columns of numbers and the names -—-
well, the last two columns you did not take from Dr. Taebel's
report; correct?
A. No. As I testified, those are mine.
24
25
Brischetto -— Cross (Tarrant Lo. -"Hicks 2-99
@. Now, are you aware of when the first time, aren't you
aware the first time you requested this information from Dr.
Taebel was around
September 8th
A. That 1s
’
in the late afternoon of Saturday,
when his deposition was being taken?
the first time it is on record as being
requested, ves.
Q. You don't know of any other time?
A. Well, I know before that, we had requested the data set.
But 1 don't know if there is a8 record of that.
@. All rign
correct?
te. You had requested of him the data set;
A. 1 had asked our attorneys to get that data set, and they
had requested
Q. You don't know 1°f
requested it?
I don't know exactly when.
they requested 1t. They told you they
A. They told me they requested it.
QR. Let's see, that Saturday afternoon, Dr. Taebel's
deposition concluded about 6:30 p.m. Was that a fairly busy
time for experts in this case in terms of getting their act
together to the extent they did in this case”
A. I am sure 1t was.
QR. And this data set that you wanted to get from Dr.
Taebel, that was the data set you could have prepared
yourself had you gone to Tarrant County and gotten the
information, ien't iE?
Bricscheito — Cross (Tarrant Cel — Hicke 2-100
% 1 A. Well, yes. With considerable amount of expense and
e effort, it would, 1 suppose, be possible to build such a data
3 set over time.
4 Q. Just as Dr. Taebel did; correct?
o A. 1 assume he built it, 1 don't know. But if he did build
fo) it, ves.
7 Q. Are you aware also that I, that he told you that he
8 would give you that information when he finished doing the
Q work he had to do for this case, he was turning out a lot of
10 printouts?
11 A. No. Well, what he said to me was he would give 1t to us
i2 Monday or Tuesday.
13 Q. That is what he told you at first, then you talked to
3 14 him on Monday or Tuesday, didn't you, and he said, "1 have
135 got to finish the analysis Mr. Hicks asked me to do, when I
16 finish that, then I will have time to devote somebody to
17 doing this other stuff you asked for"?
18 A. And I still don't have it today.
19 @. You have everything except the computer code which I
20 didn't know had to go with it.
2l A. I do not have the data set.
22 0. You ought to talk to your lawyer,
e3 A. Well, I am saying a data set that I can read.
24 Q. 1 can't help it if Dr. Taebel can't write clearly.
25 A. I didn't see any numbers.
Brieschetto '-— LCrocs {Tarrant Lo.) = Hicks 2-101
% 1 QR. Let me ask you this, as of the Saturday that we took the
2 deposition, Saturday the 8th in Dallas, now I would like you
3 to turn to TA-2, Exhibit iTA-2.
4 A. Yes.
S QR. At that time, you had, as part of your analysis, only
6 done the work on the first three races listed there 1n TA-2;
7 correct?
8 A. I believe that 1s correct.
g @. And you testified at that deposition, didn't you, that
10 from those three races you could form an opinion that there
11 was racially polarized voting in Tarrant County Judicial
ic elections and in fact that opinion was there was polarized
38 voting; correct? :
14 A. I found correlations in each of those cases. I had
15 found, I also mentioned at the time that I did not feel like
16 I would want to base my opinion solely on that, but I would
17 want to base it on other factors as well.
18 Q@. None the less, from that, you still had an opinion there
1% was racially polarized voting”?
20 A. From that and other factors as well.
21 Q. In that, there were three races analyzed. There were
ec three races you analyzed, two District Judge races 1n Tarrant
£3 County, and one involving a Democratic Primary in '88 for
24 President, and in the two District Judges races, you
£5 concluded there was no polarized voting; correct?
PE SS 2 EI oy A Te Tr rT TS ES 7 LTR vier y Soe
Brieschetito — Lross A Tarrant Co.) — Hicks c= 102
» 1 A. Yes. From the limited information I had, Blacks and
e Anglos came out on the same side in those 34 precincts, but I
3 did have a correlation which suggested to me that there were
4 differences in voting. And I really felt like that
5 correlation was strong, so I looked to other data. I looked
6 to the Democratic Primary in '88 for President.
7 @. All right. And then you said that based on those three
8 races you had an opinion, even though you would like to do
Q more, that there was racially polarized voting in Tarrant
10 County for district Jjudgeships; right?
11 A. Not just based on these three races. But I felt there
12 was a pattern there from the fact that we had found some
13 relationships and correlations, high correlations.
14 Q@. And you discerned that pattern from the fact that two
135 district judgeships had no racial polarized voting, and in
16 your opinion the third Presidential Primary race did have
17 racially polarized voting. From that, vou discerned there
18 was racially polarized voting?
19 A. 1 didn't just assert it from that, though.
20 RQ. What else?
el A. Firetrof all, 1 looked at the correlation coefficient,
ec the fact that there was a relationship, strong relationship,
23 minus .87, minus .80 and .98, indicating that there were
24 differences between Blacks and Anglos, or relationship,
ti consistent relation between the Black concentration 1in
\
Brischetto — Lross (Tarrant | Lo.) — Hicks 2-103
precincts and how people vote. I] also looked at my reasons
for saying no, they were not polarized, because I didn't feel
confident in the fact that, of those correlations, when we
looked at the results of the estimates from those 34
precincts, they came out, Blacks and Anglos came out on the
same side of the race. They were very close to, I'm sorry,
there was large differences still, Anglos were Just 54
percent for Drago and Blacks were 93 percent. Anglo for
Goldsmith was S51 percent, Blacks, BS percent. So I did see
large differences. Then when I was able to get Dr. Taebel's
data on a larger number of precincts, indeed it came out that
they, they White voters came out on the other side on those
races.
Q. That is the Dr. Taebel data you got last night?
A. That's right. And 1 think it confirms my suspicion that
there was, there were, there was polarization.
BG. And you had that -- 1'm sorry. 0Go ahead.
A. And when 1 looked at the Jesse Jackson race, I saw a .98
correlation. 1 said that is really polarized, and you have
got 99 percent of the Blacks supporting Jesse Jackson and 86
percent of the Whites supporting the other candidates voting
against Jackson. Then 1 looked also at other facts, you
know, the fact that you had other information to rely on in
Tarrant County.
Q. Like the equity chart?
TT rR A Peli i DACHIS Jp Sarde EEA ie
Bricchetto - Cross (Tarrant Lo.) —- Hicks 2-104
A. Like the fact that the City and school districts all had
single-member district systems in which they were able to,
Blacks and Hispanics were elected to the school board and to
the City Council, two Blacks and one Hispanic in each case
once they adopted the single-member district. They gave me
some clues to the fact the people were voting for candidates
along racial lines and supporting cohesively candidates of
their own ethnic origin. 1 found out that, of course, from
the White-Register case there was some evidence then that
Tarrant County was, was to be considered suspect in terms of
racial polarization. 1 looked at socioeconomic charts, found
stratification. All those factors have a bearing on the
conclusion that there is polarization in the community.
Q. You are aware, or are you not aware, ‘that in Fort Worth,
they went to single—-member districts for City Council without
a court suit?
A. I believe that's correct.
@. And the mere fact that in single-member districts 1n
Tarrant County, Fort Worth, that there are minorities elected
from predominately minority districts indicate to you there
is racially polarized voting?
A. It is a sign there is cohesiveness among Black voters
and they are voting for, and they are able to elect
candidates of their choice after single-member districts are
drawn. The fact that they didn't have such representatives
TE A NE EI LIN EE VT Se es
=
25
Brischettc — Cross (Tarrant Lo.) —- Hicks e=105
elected at large was an indication that there was a change
that was brought about, therefore, there probably is
polarization in the community.
QR. Looking at TA-2, which now has four races, again, back
in September 8th, you only had three races analyzed, given
your standards that you explained for picking which races to
look at, why had you stopped at the Jackson race as of last
Saturday, and not analyzed the district judgeship races,
which I always though you said was more pertinent?
A. Because you pointed out to me in deposition that I had
left it out, and I, I then asked my staff to track it down
and to analyze 1t.
Q. Now, in the Yeise Fachaon race, 1f you were compelled
just to look at the Jesse Jackson race in the Democratic
Primary in '88 in Tarrant County, you would have to conclude,
would you not, that there is not Anglo White voting
sufficient to deny victory to the candidate of choice of
Black voters in Tarrant County; right?
A. No. In fact, Jesse Jackson lost county-wide.
Q. Have you changed that? Mine shows that you said it.
A. It was changed on Direct.
Q. I just didn't note that down.
A. It was a typographical.
Q. I'm sorry?
A. It was a typo.
Brischetto - Cross (Tarrant {o.) - Hicks e~106
® 1 BB. Let me ask you about TA-10. The very first race there,
eg 1982 Democratic Primary race, you show that the Black choice
3 does not win 1n that race. Can you tell me how you reached
4 that conclusion?
5 A. In the first race, the '82 Democratic Primary?
6 RQ. Hicks versus Coffee.
#3 A. Hicks versus Coffee. Hicks was the obvious strong
8 choice of the Black voters, and Hicks lost the election.
9 @. Where did you get the information that Hicks lost the
10 election?
11 A. I asked Judge Hicks.
1 THE COURT: Which is a pretty fair source.
13 A. We had lunch together, Your Honor.
14 BY MR. HICKS:
15 @. She just said that to make this easier.
16 A. No. I think what happened was, she had thought she had
17 won the first time around by seven votes, and there was a
18 recount and she found out she lost by eighty something votes.
IT Q. Eighty-eight, approximately? Really this is a broader
20 question than just on this county, since this is your last
el bit of testimony, the way I understand 1t. You are not, are
ee you, going to testify about Dallas and Harris Counties?
23 A. I hope not.
24 Q. l1 do too. Let me ask you a broader question about the
es demographics in Texas since 1980. Is 1t a fair statement you
at
a
on
A Ss CAE TT eT Ce TA Se
Brischetto — Crosse {(ltarpaniti Cao.) — Hicks 2-107
think that generally across Texas there has been a very large
population growth since 1980, especially in urban areas?
A. There has been a population growth greater than in other
areas of the, greater than most other areas, I will say, of
the country, except for California and maybe Florida. But 1]
don't remember the exact percentage increase from '80 to '88.
MR. HICKS: Pass the witness.
MS. FINKELSTEIN: Pass the witness.
THE COURT: You have been passed out. You may step
down. Call your next witness.
MS. THOMPSON: Your Honor, I am Brenda Hull
Thompson. I would like to call Judge Mary Ellen Hicks.
THE COURT: Raise your right hand, if you would,
please, Judge.
(Witness sworn.)
MARY ELLEN WHITLOCK HICKS, WITNESS, sworn
EXAMINATION
BY THE COURT:
QR. Tell me your name, where you live and what you do,
please.
A. Yes, sir. My name 1s Mary Ellen Whitlock Hicks. I live
in Fort Worth, Texas. I am a District Court Judge.
GQ. How does it feel to take the oath and sit 1n the witness
chair?
A. Not too good, Judge.
EERE y tn a a SLATE SL ne Ss ve co
Hicks — By the Lourt £~ 108
» 1 @. What are you doing about your State Convention, are you
e going to go up there tonight?
3 A. I see my presiding Judge sitting out there, 1 guess 1
4 will go to Dallas with him. When he leaves, 1 will leave.
9 Q. Do you think that he is here just to probably run some
6 sort of a check on you, see what you say?
7 A. He knows I would kill him otherwise, so I doubt 1t.
8 THE COURT: All right. Go ahead.
g DIRECT EXAMINATION
10 BY MS. THOMPSON:
11 Q. Judge Hicks, would you tell us what court you are the
ie sitting Judge for?
13 A. The 231st District Court.
y 14 RQ. Prior to taking the bench on the 231st Court, where were
15 yo employed?
16 A. I was employed for a brief period of time in private
37 practice.
18 @. And prior to that?
1° A. 1 was a Municipal Court Judge for the City of Fort Worth
20 and Chief Judge for the City of Fort Worth Municipal Courts.
21 Q. How long were you employed in the Municipal Court
ge capacity?
£3 A. From 1977 until) '78, 1 was a Municipal Court Judge full
24 time, then in 1978, I was appointed Chief Judge and served 1in
a that capacity until February lst, 1982.
TT EE FS Ty Ne FF IS FE pm TE rey
oF
TARRY
Er EE at a
24
25
Hicks - Direct - Thompson 2-10%
@. Would you state your education after high school?
A. Yes. I am a graduate of Texas Woman's University,
Denton, Texas. I iss awarded a law degree from Texas Tech
School of Law in 1974,
@. Are you a resident of Tarrant County?
A. Yes, 1 am.
Q@. How long have you lived in Tarrant County?
A. I have lived in Tarrant County since October, 1974.
Q. And for the record, how do you identify yourself in
race”?
A. I am African-American.
Q. With respect to your involvement in the community
activities in Fort Worth, Tarrant County, are you active in
the community in any way?
A. Yes, 1 am. I am a life member of the National
Association for the Advancement of Colored People. I am
former President of the Forth Worth Black Bar Association. I
am a member of Delta Sigma Thata Sorority and numerous other
community and civic activities.
Q. Are you involved politically in the community 1n Fort
Worth and Tarrant County?
A. Yes, I have been.
Q. Have you been acquainted with the political campaigns
for Judicial office of other African-Americans like yourself?
A. Yes, I have.
24
es
Hicks — Direct — Thompson 2-110
QR. Are you familiar with Louis Sturns?
A. Yes, 1 am.
Q. Wayne Salvant?
A. Yes, I am.
3. Ciifforgd Davis?
A. Yes, I am.
Q. Thomas Ross?
A. Yes, I am.
Q. Who are they, please?
A. They are all African—-Americans. One 1s a current
district judge, one 1s a former district Judge, one 1s a
Criminal Court Magistrate and the other 1s a practicing
attorney. All African-American lawyers in Tarrant County.
Q. With respect to Judge Phillip Sturns, when did he run
for Judicial post?
A. Judge Louis Sturns ran in 1986. He was appointed,
originally, by Governor Bill Clements in 1983 to a District
bench, and I think the Senate did not confirm him. So he did
not, I think he sat for awhile, basically, but he ran for
elected position in 1986.
Q. Okay. Ang what party did he run on?
A. He ran as a Republican.
@. And did he run against anybody in the Primary?
A. No, he did not. He had no Primary epponent.
3. And in the General Election?
24
eS
Hicks — Direct - Thompson 2-111
A. He did, the incumbent, Judge Toby Goldsmith.
Q. What was the result of that?
A. Judge Louis Sturns won.
Q. With respect to Judge Louis Sturns, have you had an
opportunity to examine the election returns by precinct
regarding this race”
A. Yes, 1 have.
QR. Have you been able to determine whether or not he was
able to garner the Black vote in the precincts that you are
aware of that have Black population?
A. Yes. The identifiably Black precincts, 1 am of the
opinion Judge Sturns received about 10 percent of the Black
vote.
Q. With respect to Wayne Salvant, what Judicial post did he
geek on election?
A. He ran in 1986 for Criminal District Court.
@. Who did he run against?
A. He ran against an incumbent Democrat, Joe Drago.
Q. Did he have an opponent in the Primary?
A. No, he did not.
Q. And in the General Election?
A. Yes, he did.
Q. Who was that?
A. That was Judge Drago.
GB. What was the result of the election?
Hicks -— Direct - Thompson e~-1i2
fl
1 A. Wayne Salvant lost that election.
2 Q. What party is Wayne Salvant?
3 A. He 1s a Republican.
4 GQ. And do 1 understand vou to say that Louis Sturns, a
vi Black African-American Republican, won in the same year that
é Wayne Salvant lost?
7 A. That is correct.
8 0. 61) right. With respect to Mr. Salvant, can you
Q determine from your examination of the precinct votes whether
10 or not he garnered the Black vote?
11 A. I think Wayne got approximately two to three percent of
12 the Black vote in 1986.
13 Q. Was Mr. Salvant appointed to the Court or, fm marry.
14 Strike that. With respect to Mr. Davis, are you familiar
15 with when he ran for Judicial post?
16 A. Yes, I am.
17 R. What court did he seek?
18 A. Criminal District Court. After being appointed, having
19 been appointed the first time in 1983.
20 Q. And what was the result of his Primary race?
8 A. He beat his Democratic opponent, Mr. Mac Blankinship, 1n
ee 1984.
23 RQ. And in the General Election?
2&4 A. There was no opponent in the General Election.
25 Q. And did Mr. Davis have occasion to run again?
boy blr a ANE Ey SRE BES NE pre £
Hicks — Direct - Thompson 2-113
® 1 A. Yes, he did. He ran in 1988.
c QR. With respect to that race, was he running again for
3 District Court Judge”?
4 A. Yes, he was.
5 @. And did he have an opponent?
6 A. Yes, he did.
7 Q. Who was that?
8 A. Lee Ann Dolphino.
9 @. What was the result of that election?
10 A. Judge Clifford Davis lost.
11 RQ. With respect to Judge Cliff Davis, what can you tell us
ig about his campaign? Was he well-known in his community?
13 A. Yes, he was. Judge Clifford Davis was licensed to
14 rSELICE Lav in 1949. He came to Fort Worth in the early
15 'S0's, and since that time, he has been a pioneer 1n the
16 Civil Rights Movement, filed numerous lawsuits and totally
17 involved in the battle for justice and equality for all
18 Americans. He is quite well-known, not only in the
19 community, but in the legal community, and well respected as
20 well.
21 Q. With respect to Judge Sturns and the situation 1n which
ec he won the election in 1986 and Wayne Salvant lost in 1986,
83 how do you explain that, do you know what factors were
24 involved in that?
25 A. I am of the opinion that Louis Sturns comes from a
Sr —_—— Cpr A 2a Saat
24
2s
Hicks — Direct - Thompson e-114
prominent African-American family. His brother, Vernell
Sturns served as an Assistant City Manager for the City of
Fort Worth. Right before that election, to the dismay of
people in Tarrant County, particularly African—-Americans, the
Fort Worth City Council refused to appoint him as City
Manager, Vernell Sturns, Louis' brother. I think that helped
Louis in his campaign to be elected District Judge in 1986.
And 1 know it helped him, particularly in the African~-
American community.
Q. With respect to Judge Clifford Davis, have you analyzed
or had an opportunity to examine the election returns with
respect to his race in 1984 and 19887
A. Yes, I have.
QR. Okay. With respect to your analysis, have you been able
to determined whether or not he got substantial Black votes
from the Black precincts?
A. He won every Black box in Tarrant County, identifiable
Black box by an overwhelming majority of the votes cast.
Q. And with respect to the 1988 election, did he also
receive that kind of support?
A. It was the same mandate from the African-American
citizens of Tarrant County.
Q. And with respect to the level of White support, how did
he do?
A. He did not, he lost. He did not do as well in the White
Hicks — Direct - Thompson e-115
% 1 community as he did in the African-American community.
e Q. With respect to your particular quest for a Judicial
3 post, when did you first run for office?
Li A. The first time 1 ran was in 1982 for a County Criminal
s Lourt.
6 QR. What was the result of that race”
7 A. I lost by 88 votes in the Democratic Primary.
8 Q@. Okay. Who were you running against?
Q A. Former District Attorney, Frank Coffee, who 1s now on
10 that same bench, County Criminal Court bench.
11 Q. When did you take the bench?
12 A. I was appointed by Governor Mark White, March the 9th,
13 1983. 1'm.sorry. I went on the bench, I was sworn 1n after
14 Senate confirmation in April. |
15 Q. When did you run for the bench after your appointment?
16 A. I ran in 'B4 and again in 'Bé. I ran in '84 for an
17 unexpired term of Judge Joe Spurlock.
18 BG. And vou ran in 19867
iS A. In 1986.
20 Q. When are you up for election again?
cl A. Now, unfortunately. l cam up in 1970.
od Q. What efforts have been made with respect to your
23 candidacy in 192907
24 A. Probably everyone is aware, I know everyone 1s aware
25 that the Republican Party has made considerable inroads in
To Sa No NC TP RCE SIR Se Te Ei hie FE Sh a Bi Choi Jar Me HkS RE
24
es
Hicks — Direct —- Thompson 2-116
Tarrant County as far as recruiting and encouraging people,
incumbent Democrats or lawyers who run as Republicans. So i]
have been approached toc seek reelection as a Republican in
1920. In fact, I was approached even on Monday of this week
before 1 came to Midland for this trial.
Q. Have other judges made a change in their party
affiliation, is that what you are saying?
A. Yes. Eight Democratic judges, I think 1t was
approximately, gosh, five weeks ago, switched to the
Republican Party in Tarrant County.
Q. Do you know if you have an opponent in your race?
A. They have not filed their intent, but I understand I do
have two opponents at this point.
THE COLIRT: It is better to have opposition than
opponents.
A. Yes, sir. Thank you, Judge. Opposition. Take care of
opposition.
BY MS. THOMPSON:
Q. Do you believe you could run successfully at large
against an opponent?
A. NO, ..1 do not.
Q. Do you believe that you could win in a single-member
district?
A. I believe I could win from a single-member district
because I live in a Black neighborhood. I] have been involved
Hicks — Direct - Thompson e~117
1 since 1974 in activities in my community, and I think that, 1
2 think part of the process for people of color is that you pay
3 your dues. And I am of the opinion that I continue to pay my
4 dues, and 1 think if 1 ran from a single-member district,
9 unless someone like Judge Clifford Davis runs against me, I
é6 could be elected to a District bench.
7 Q. In 1984, 19846, did you have an opponent?
8 A. No, 1.0id not.
Q Q. Are you familiar with the minority representation in
10 other elective bodies in Tarrant County?
11 A. Yes, I am.
i2 Dl. ‘With respect to the Lity Council, are you familiar with
13 the City Council system of electing”?
14 A. Yes, I am.
15 QR. The City Council now is elected by single-member
16 district; is that correct”?
17 A. Yes, it 1s.
18 @. When did that go into effect?
19 A. 1977, after the threat of a lawsuit that was going to be
20 = Filed by Judge L. Llifford Davis.
el . As a result of the single-member districts, what has
22 been the results?
23 A. There are two African-Americans and one Hispanic-
24 American on the Fort Worth City Council at this time.
25 RQ. Is that three minorities out of nine?
——— FES SR: US J SA G R ne
r=
es
Hicks — Direct - Thompson 2-118
A. That's right.
Q. With respect to the Fort Worth Independent School
District, are you familiar with the situation there”?
A. Yes, I am.
RQ. And that is a single—-member district situation, also?
A. That's correct.
R. And how long has it been a single-member district?
A. I think since 1977 as well, after the lawsuit that was
filed by Judge L. Clifford Davis.
Q. And subsequent to going to single-member districts, what
has been the pattern of election of minorities?
A. There was one Black on the City Council at a time.
There have been two Blacks before single—-member districts on
the Council. Dr. Edward Gwinn and former, he later became
the State Representative. And then on the school board 1n
Tarrant County, Mr. Webe Kerry who again later became State
Representative was elected at large on the school board in
Tarrant County.
Q. And subsequent to single-member districts, how many
Blacks have been on the school board?
A. At the present time, there are two Blacks, two Black-
Americans on the school board and one Hispanic—-American on
the school board at this time.
BQ. Out of a total of how many?
A. Eight,
INC WL EN PT TT FR In TI TY TN Ape 1
Hicks — Direct - Thompson e~-11%
THE COURT: You have eight on the school board?
A. No, seven. I'm sorry. You are right, seven.
THE COURT: Tarrant County 1s a little different, 1
understand.
A. You are right. Seven. Seven. Thank you, Judge. You
know more than I do.
THE COURT: All right.
BY MS. THOMPSON:
QR. - With respect to the State Representative, are you
acquainted with the State Representative for Tarrant County?
Q. Okay. With respect to those representatives, how many
are minority Pow?
A. There 1s one.
@. Who is that?
A. State Representative Garfield Thompson.
A When was he elected?
A. He was elected in 1984.
Q. And prior to 1984, had there been more than one State
Representative?
A. Yes. Until 1982, State Representative Bobby Webber and
State Representative Webe Kerry represented Tarrant County in
the State Legislature. Representative Webber lost to an
Anglo American, State Representative Doyle Willis, in 1982.
Q. Are you familiar with the living patterns of minorities
24
25
AE ts Se tf ume a Cen A 20
Hicks — Direct - Thompson 2-120
in Tarrant County?
A. Yes, 1 am.
Q. Are there areas of minority concentration in Tarrant
County?
A. Definitely.
RQ. What are those areas”?
A. Basically we call it Stop S5ix, Texas, Como, South Side,
Rolling Hills, Riverside, Forest Hills, Highland Hills. They
are part of the Black, mostly concentrated on the south side
of Fort Worth.
QR. Do you happen to know how many registered voters,
approximately, are in that area?
A. In 1988, identifiable Black precincts, and 1 am just
speaking of the ones in Fort Worth, there were 50,000
registered voters.
Q. With respect to the available pool of lawyers, I want to
ask a question about lawyers. Do you know of any lawyers who
live in Tarrant County who office in Dallas or who live in
Dallas and office in Tarrant County?
A. 1 certainly do.
Q. Who are they?
A. You are one. And the other is Attorney Anthony Lyon,
lives in Tarrant County and practices in Dallas County, has
an office in Dallas County.
Q. Based on your political experience, your knowledge of
24
£5
Hicks — Direct - Thompson 2-121
the living patterns and your knowledge of minority voting, do
you have an opinion as to the electability of Black judges 1n
a single-member district from Tarrant County?
A. Yes, I do have an opinion.
Q. What is that opinion?
A. My opinion is that African-Americans can be elected from
single-member districts.
MS. THOMPSON: Thank you.
A. Thank you.
CROSS EXAMINATION
BY MR. HI{LKS:
Q. Judge Hicks, you are a Democrat; right?
A. That's correct.
Q. Why haven't you switched to the Republican Party?
A. 1 think I owe a debt of gratitude to the gentleman named
Mark White and another gentleman named Hugh Palmer who took a
chance on me in 1983 and named an African woman person who
grew 20 miles west of here in Odessa, Texas, to a district
judgeship. So, the question for me is loyalty.
Philosophically, I feel more at home in the Democratic Party.
Anc it is something just within me that I am not going to
bite the hand that feeds me, if you will.
@. Even if it improves your chances of reelection?
A. Even if it improves my chances of reelection. That's
right, There is something hypocritical about doing that.
Hicks - Cross — Hicks e—-iz2z2
. 1 MR. HICKS: I have no further questions.
e THE COURT: Thank you. I guess he wants to practice
3 in your Lourt. |
A A. It sounds like 1t to me.
s MR. HICKS: I want her to be able to catch the next
6 flight.
7 .. MS. THOMPSON: We have nothing further, Your Honor.
8 THE COURT: Thank you very much. We appreciate your
\ coming. It is a pleasure to have you in my Court.
10 THE WITNESS: When I was taking the declaration you
11 signed off on me when you were the president of the Ector
12 County Bar. Thank you.
13 MR. GARRETT : We call Dr. Richard Engstrom.
14 THE LOURTY: If you would, please raise your right
19 hand.
16 (Witness sworn.)
17 MR. CLEMENTS: Your Honor, just a point of
18 clarification. At this point, Mr. Engstrom is testifying
iT solely with respect to Dallas?
20 MR. GARRETT: Lorrect.
21 THE COURT: You can listen, We will let you listen.
£2 MR. CLEMENTS: 1'will try, Your Honor.
23 RICHARD L. ENGSTROM, WITNESS, sworn
24 EXAMINATION
29 BY THE COURT:
Engstrom — By the Court
Q@. Tell me your name, where you live and what you do,
please.
A. My name is Richard L. Engstrom. That in E-N-G~-S-T-R-0-
M. I live in New Orleans Louisiana and I am a research
professor of political science at the University of New
Orleans.
RQ. Give me a little bit about your educational background,
if you would, please.
A. I have a Bachelor of Arts degree in Political Science
from Hope College in Holland, Michigan, Master of Arts degree
in Political Science from the University of Kentucky and a
PhD in Political Science awarded in 1971 from the University
of Kentucky.
RQ. Give me dates and what you have done after you got all
these degrees, what have you done?
A. Well, I took a job at that time at what was known as
Louisiana State University in New Orleans teaching political
science. And 1 have been at that school ever since, although
its name has been changed to the University of New Orleans.
Still part of the LSU system at the moment. I teach courses
in urban politics, comparative electoral systems and research
methods.
RQ. Have you testified before?
A. Yes, 1 have.
All right. Tell me some of the Courts that you have
Ea Gp rl Tad ht SR ie A ta
SF a =
24
25
Engstrom —- By the Court 2—124
testified in.
A. I was an expert witness in the case of Citizens versus,
Citizens for a Better Gretna versus Gretna, Louisiana.
Q. What Judge tried that one?
A. Judge Collins. I was a witness in Butts versus City of
New York, which was Bryant. I was a witness in Collins
versus City of Norfork, which was Judge Clark. I was a
witness in Jefferson Parish, a Louisiana case involving Judge
Beer, a case of Clark versus Roamer involving Judge Parker
from Baton Rouge. And Chisolm versus Roamer involving Judge
Swartz in New Orleans. You want more?
Q. 1 know all of them but the one in Norfork. 1 don't
believe I know him. Go ahead.
DIRECT EXAMINATION
BY MR. GARRETT:
@. Thank you. Dr. Engstrom, 1 take it you do have some
expertise in the area of voting rights; is that correct?
A. I believe I do.
RQ. All right. What was your assignment in this case”?
A. I was asked to examine elections in Dallas County,
district court elections, General elections in the 1980's,
Elections involving contested, elections involving minority
candidates and to analyze those elections to see 1f there was
racially polarized voting.
Q. In order to perform this analysis, what data set did you
/
. PA TT FT
Engstrom —- Direct - Garrett 2-129
use with regard to the ethnic composition of the precincts?
A. Well, for the 1980 election, I used the 1980 Census
Bureau match, or report of precinct population in Dallas
County. There were no minority candidates in 1982, no Black
candidates in 1982, so, for 'B4, 'Bé6 and '88, 1 used a match
that was done by the Dallas County Elections Office. Maybe I
should explain that. In 1982 ——
RQ. Please.
A. In 1982, prior to the 1982 election, there was a massive
reconfiguration of precinct boundary lines in Dallas County.
So the ‘80 census data were no longer of any validity 1n
terms of precinct boundaries. As 1 understand 1t, the
elections office had done a match of precincts and I was
provided the 1980 figures. And what I was able to do with
the 1980 figures, which was for the configuration with the
largest number of precincts, was go back to '86, look at the
precinct maps, identify what precincts had been split,
combine precinct census data according to the elections
office. And the same thing for 'B4. So I had the '88
configuration from the elections office and used that to
match the precinct in 'B& and 'B4.
@. Are you satisified that your methodology gave you a
reliable data base for making your estimates?
A. Yes, it 1s a reliable data base.
Q. What was your methodology in undertaking your assignment
Engstrom —- Direct - Garrett 2-126
1 to analyze these elections?
2 A. 1 have employed two standard methodologies for assessing
3 whether there are racial divisions 1n candidate preference.
RE! That is homogeneous precinct analysis, sometimes called
3 extreme case analysis, and regression analysis.
é Q. And in regression analysis, was there any sub-specie of
7 that type analysis that you utilized?
8 A. I performed both bivariate and multivariate in this
SG case.
10 Q. Did you weight your cases?
11 A. Oh, yes.
12 @. And what is the purpose of that?
13 A. Well, there are vastly different numbers of votes cast
14 in precincts in Dallas County. In some elections, as few as
15 three votes in a precinct up to in other elections, I believe
16 something like 8,000, or up in the thousands, certainly. And
17 in an unweighted analysis, those precincts are all treated as
18 equal units, if they provide the same information. A
19 weighted analysis simply takes into account the different
20 number of votes case in those various precincts and allows
=) precincts to have a proportionate impact on a county-wide
ge coefficient.
23 Q. Did you perform any type of statistics significance test
24 upon the results that you obtained? And if so, what was the
29 statistical significance that you found?
Ty TS Te Ty Ey A ET, IT Ta Ta ET TI nee
Engstrom — Direct - Garrett e—-127
A. Well, all the relationships that I report I believe in
the exhibit, are statistically significant at a degree better
than one in 10,000. In other words, the chances of those
relationships, the probability of those relationships
appearing by chance are less than one in 10,000.
GQ. Approximately how many precincts were you dealing with
in Dallas County?
A. It began with somewhere in the high three hundreds, 1
believe in 1980 and goes up into the high five hundreds, high
four hundreds, maybe, by 1988.
Q. When you were selecting the races which you were going
to analyze, what criteria did you use for selecting those
races?
- re—
A. Well, they had to be contested elections and they
involved Black candidates.
QR. And what was the basis for utilization of that
criterion?
A. That was to see if Black voters in Dallas County had the
ability to elect candidates of their choice when the
candidates of their choice happened to be Black.
Q. What difference would 1t make if the candidates were all
White? What difference would it have made 1f the candidates
had been White rather than Black candidates?
A. White on White elections?
GQ. Yes.
Engstrom — Direct - Barrett e128
A. Well, if I discover that in Black on White elections
that the minority community is unable to elect candidates of
choice, then in terms of having the equal opportunity to
elect candidates of their choice, it wouldn't matter to me in
White on White elections they were subsequently able to be on
the winning side. In other words, 1f the ability to elect a
candidate of your choice 1s conditioned by the race of the
candidate or depends on the race of the candidate, then the
ability is not equal.
Q. Let's turn now to the exhibits that you prepared for
your testimony. Do you have 1t there in front of you?
A. JI -.-don't believe I do.
Q. Let me see if I can get you a copy. May I approach the
witness with the exhibit, Your Honor?
Dr. Engstrom, what has been identified as
Plaintiffs' Exhibit D-2, is that the report of the analysis
that you performed?
A. Yes, 1t is.
@. Would you tell us, please, let's take the first year in
which you analyzed, 1 believe 1980 with Candidate Winn. Do
you see that?
A. Yes.
Q@. Would you explain, please, first of all, the homogeneous
precinct analysis, what you are analyzing there, how you went
about 1+t7?
Engstrom —- Direct - Garrett 2-129
A. Well, in homogeneous precinct analysis, one separates
out for examination precincts defined as predominately one
racial group or other voters 1n the electorate. In this
case, 1t 1s, well, the precincts are predominately Black or
non—-Black. The criterion was 90 percent standard cut-off
point for homogeneous precinct analysis. So the first column
there says percent of non-Black votes. What that means is
simply among the votes cast 1n precincts that were better
than 90 percent or more non-Black, Winn received 39.7 percent
of those votes cast within those precincts.
Q. What about the second column, what is the information
there?
A. That 1s for the comparable, the precincts that are 90
percent or more Black in population, and the 98.1 percent
signifies that within those precincts, 98.1 percent of the
votes cast in that election for district court judge were’
cast for Winn.
RB. Let's move into the center of the exhibit, which is sub-
titled, 'Bivariate Regression’. I believe there are three
columns under this sub-title. Would you explain, please,
what those columns mean?
A. Well, okay. The correlation coefficient is simply the
relationship between the racial composition of the precinct
and the percentage of votes cast for Winn.
Q. That is otherwise known as R?7
24
£5
Engstrom —- Direct - Garrett 2-130
A. I beg your pardon?
@. That is otherwise known as Rj te that correct?
A. Yes, designated R. Generally an R, of course, has a
maximum value of 1.0, which would be a perfect association.
I+ it is a plus 1.0, that means it is very consistent,
perfectly consistent fashion as you increase in the racial
composition. In other words, as you increase in the Black
percentage of both precincts, you increase 1n the vote for
Winn. What we see here is a correlation coefficient of .865,
which means it is a very pronounced relationship, or
consistent relationship between the racial composition of the
precinct and the percentage of votes received by Winn.
RQ. Is there any number, when on ara looking at the
correlation coefficient, you are looking at R, where 1t
becomes meaningful for social scientists?
A. Well, I believe that depends on the context. 1 don't
know that there is a general rule about what is a meaningful
number. 1 heard people say that in this context an R of .O
or better is meaningful. I don't know that that is a hard
and fast rule of any type.
a. Moving intc the next two sets of columneg there where you
have percent of non-Blacks and the percent of Blacks, what
does it indicate there?
A. These are the results of the bivariate regression. In
other words, regressing a percent of votes received by Winn
Engstrom —- Direct - Garrett 2-131
1 onto the racial composition of the precinct. What this
ce results in 1s an estimate then that among non-Black voters
3 Winn received only 38.6 percent of the votes they cast. The
4 next column is the estimate for percent of Black votes. In
3 this case, the bivariate regression results in an estimate of
l=) Just above 100, 100.5.
7 Q@. Moving 1nto the next column, I see you have it sub-
8 titled "With Control for Hispanics'. Would you explain why
> you did that type of analysis and what do the columns
10 indicate?
11 A. Yes. If you have a situation in which precincts that
12 have substantial Black populations in them, if a good portion
f 13 of the non-Black population 1s Hispanic, and Hispanics are
14 voting for minority candidates, as well as Blacks, that will
= "result in inflated estimates in effect of Black cohesion. So
16 that is why I added a control for Hispanics. In effect, they
17 statistical control for the possibility that the slope line
18 is being pulled up by Hispanic presence. And what 1
17 discovered is if Hispanics are added to the equation and a
20 control imposed there for Hispanics, Black cohesion is
21 estimated then at a somewhat lower level. In this case 1t is
22 G72. And the correlation coefficient shows even greater
23 consistency then in terms of the Black composition of
24 precincts in the vote for Winn in this case.
£9 Q. Dr. Engstrom,. in relation to your study of 1980
24
23
Engstrom —- Direct — Garrett e-132
elections in which Judge Winn was involved, what did you
derive from your homogeneous precinct analysis, bivariate
regression analysis and your multivariate analysis? What
information do you derive from that?
A. Well, it 1s all quite consistent, and 1 believe that --
what information do I derive?
Q. Yes. What conclusion do you draw from doing that?
A. There were racial differences in candidate preferences
in this election. There was racially polarized voting.
Q. And you define racially polarized voting as how, Doctor?
A. When there are racial differences 1n the candidate
preferences of the two groups.
Q. Okay. Let's take a look at the next race, the 1984 race
in which Judge Baraka ran. Are there differences in this
race than there were in the 1980 race that you examined?
A. Yes. In this race, the Black candidate is not the
preferred candidate of Black voters.
Bd. So, in this race, do 1 take it that the Blacks preferred
a White candidate?
A. Yes. They preferred Baraka's opponent, opposition, 1
should say.
QR. Without going through each line of this exhibit, line by
line, were you able to draw any conclusions regarding the
question you were asked to examine after having gone through
your entire analysis from 1980 to 19887
24
23
Engstrom — Direct — Garrett 2-133
A. I'm sorry, would you repeat?
Q. 1 said, were you able to draw any conclusions regarding
the question you were asked to analyze?
A. Oh, yes.
Q@. From the exhibit as a whole?
A. Yes. Voting in these elections 1s racially polarized.
RQ. Were you able to draw any conclusion regarding the
cohesiveness of Blacks, politically?
A. Yes. Black voters voted in a cohesive fashion in these
elections.
@. Were you able to draw any conclusions regarding the
existence of a White voting bloc sufficient to defeat the
preferred candidate of Blacks?
A. Yes. The White voting bloc in each case defeated the
choice of the Black community.
Q. If you were going to look at a question of R square,
which I take it is not presented on this document, how would
you go about calculating that from the figures that are here?
A. Well, R square is simply a square of the correlation
coefficient.
Q. And which column would you square?
A. Well, in the middle, there, it says correlation
coefficient. And so if you squared those figures, you would
have R squared.
Q. All right. The State has mentioned in their opening
2&4
23
Engstrom — Direct - Garrett 2-134
argument, and also in papers filed in this case, that party,
not race, seems to have a large influence on the outcome of
elections. I am wondering, did you examine this question as
regards party versus race in the analysis you performed”?
A. No. This is not a causal analysis. This is simply an
effort designed to identify the racial preferences, excuse
me, candidate preferences of different groups.
Q. What do you mean by causal analysis?
A. An explanation for why people chose a candidate, why
they chose certain candidates over others.
Q. Well, if party were an influence, would that mean there
is no racially polarized voting?
A. No. Given ‘these results, what that would mean 1s party
is, in turn, related to race.
RQ. What do you mean, party related to race?
A. Well, if party also, if party is an explanatory variable
in these results, what that would show me was that Blacks are
overwhelmingly supportive of the Democratic Party. And the
other voters substantially supportive of the Republican
opponent.
Q. Has your explanation of why you could not go into the
causal analysis, has that been cited by the Supreme Court or
any other Court in this country that you know of?
A. Oh, yes. I wrote an article called, ‘Reincarnation of
the Intent Standard', published in the Howard Law Journal,
Engstrom —- Direct - Garrett e-139%
* 1 dealing with the whole question of multivariate causal
2 analyses and inserting variables that in turn are related to
3 race in an effort to cleanse the racial content in candidates
a in divisions and candidate preferences. That article, as
Ss well as a couple of others, were cited by the Supreme Court
6 in the Thornberg versus Gingles decision.
7 MR. GARRETT: Thank you, Dr. Engstrom. I will pass
8 the witness.
? MR. GODBEY: Your Honor, with the Court's
10 permission, on this side of the Courtroom, we have agreed
11 that Dallas intervenors' defendants can go first 1n cross
12 examination of the Dallas witnesses.
13 THE COURT: No problem. All right.
14 CROSS EXAMINATION
18 BY MR. QODBEY?:
16 Q. Dr. Engstrom, my name is David Godbey. I represent
17 Dallas County Judge Harold Entz, and we met briefly at your
18 deposition. I have a couple of questions first about some
19 mechanics in your regression analysis. For example, in the
20 gcattergram, that is the little plat; is that correct?
2i A. Yes.
ec Q. And along the bottom edge of the plat, that is what 1s
£3 called the X axis, I believe?
24 A. Correct.
25 Q. And that is also what 1s called sometimes the
A SO ER TT TEE 12, J CE He eS See
Engstrom - Cross —- Godbey 2-136
independent variable?
A. Lorrect.
Q. Along the Y axis, or the vertical, you show the percent
of vote by, I guess in this case, Black voters?
A. No. That 1s the percent of votes that went for the
Black candidate.
Q. 1'm sorry. The bottom axis, the independent variable,
shows the percentage of Black population in that voting
precinct?
A. Correct.
Q. Dkay. Now —
A. Excuse me. Percentage of population that 1s Black.
@. Okay.
A. In the precinct.
RQ. All right. And in both of the two cases you described
for obtaining your information the 1980 data and then the
data from other years that was derived from the 1988 data
provided by the Dallas County Elections Bureau, all of that
demographic data ultimately rests on the 1980 census; 1s that
right? |
A. That's right. What the election office provided was a
match of the 1988 precincts to the 1980 census data.
Q. They didn't overlay the '88 precinct lines onto the
demographic distribution revealed by '80 census”?
A. I assume that is the way they did 1t.
Engstrom — Cross - Godbey 2-137
1 Q. The 1980 numbers for demographic data from the '80
E census were total population numbers; 1s that right?
3S A. orrect.
4 Q. You were assuming 1n your analysis, were you not, that
3 demographic ratios revealed by the 1980 census figures for
6 total population would be the same for both voting age
7 population; is that right?
8 A. No, I don't know that that is an assumption in the
9 analysis.
10 Q. You at least did not make any correction to those
11 numbers to account for any differences that might exist
ig between total population and voting age population; is that
13 right?
14 A. I never had any precinct data by race, by voting age
15 population.
16 R@. That is why you didn't make this correction; right?
17 A. I didn't have the data, it wasn't reported by DAP.
18 Q. I am not concerned right now so much with why you
1¢ didn't, Just primarily with the fact that you did not, for
20 whatever reason.
21 A. The data are based on total population.
ge Q. And similarly, you did not correct 1n any way for any
23 differences in voting age population as compared to
24 registered voters?
£5 A. No.
LT TN TT IY SE YH YS A TE
Engstrom - Cross - Godbey 2-138
% 1 @. And similarly, you did not make any correction as
e between registered voters and those people who actually show
3 up at the polling booth to register; is that correct?
4 A. “Lorrect.
9 @. And you similarly did not make any corrections for
6 people who may have showed up in the voting booth but got
7 tired of voting by the time they got down to the Judicial
8 elections; is that right”?
Q A. In terms of an independent variable?
10 Q. In terms of making any adjustment in the demographic
ii ratios that you used in your analysis?
ic A. Correct.
i3 1 Correct? Now, I would assume, ideally, in a perfect
14 world, if Une sd all that information, you would make
15 allowance for that, because what you really are after are the
16 demographic ratios of the people who actually voted in the
17 particular elections; isn't that right?
18 A. Correct.
19 Q. But that information just is not available to you?
c0 A. Correct.
21 Q. Again, similarly, you did not make any corrections to
2 your demographic data to account for varying distributions of
23 population over time; is that right?
2G A. That's correct.
23 3. No adjustment for, for example, hypothetically had there
A TR SR NTA Te IT ST Ry ep Te
St
(
Engstrom - Cross - Godbey e-13%
been geographic disbursal of minority residents throughout
Dallas County over the decade of the '80's, that 1s something
you did not take into account; is that right?
A. Right.
Q. You would agree with me, wouldn't you, that there have
been many changes in the Dallas County population since 19807
A. My understanding is that there would be a lot of growth,
and from looking at the growth in the precincts, I would
assume there has been substantial suburban growth.
Q. Okay. You have not done any kind of quantative analysis
to determine the size of that growth or any impact 1t might
have on the demographic figures you used in your analysis; 1s
that right?
A. Correct.
@. You don't know if those changes would even be major or
minor at this pointy is that right?
A. Information as to whether they would be major or minor?
QR. You don't know whether they would be major or minor at
this point, do you?
A. Given that the growth occurred, that the precinct
expansion occurred 1n the suburban areas, I would think that
it is basically that those precincts were White in 1980 and
continued to be White in 1988. I have no hard figures for
that.
Q. Okay. I also gather, you were talking about doing a
SR ry J TD A TR A NI PE SA eT SE NT TR A p— PA -
2G
25
Engstrom — Cross -— Godbey 2-140
weighted analysis?
AR. Lorrect.
Q. In this case, I understand that you did not do any kind
of unweighted analysis in this case; is that right?
A. Well, actually, I have since performed an unweighted
analysis to see if it would change my conclusions.
QR. Did it?
A. No.
Q. In fact, I guess when you have as many precincts as
there are in Dallas County, the differences between a
weighted analysis and an unweighted analysis more or less get
washed out by the large volume of precinct information?
A. No, I don't think differences in weight or unweighted
analysis or a function of the number of precincts involved.
No.
Q. What do you think they are a function of?
A. There is a difference if there is a systematic
relationship between the size of the precinct and the
behavior in the precinct.
Q. Okay. And you did not find any systematic difference?
A. Ng,.,i'}] cig not, My conclusion would be the same based on
an unweighted result.
Q. Okay. You did not include any absentee votes 1n your
Dallas County analyses; is that correct?
A. That's correct. They cannot be allocated to precinct,
24
2S
Engstrom - Cross - Godbey 2-141
so were not.
Q. Did you determine what percentage of votes in any
elections you analyzed were, in fact, absentee votes”?
A. Up through 1986, 1 believe, 1t 1s a very small
percentage. In 1988, I believe, in one election in 1988, it
is something around 25 percent.
Q@. And did that give you any pause?
A. Not given that the results are perfectly consistent with
the six elections that went before 1t.
Q. On its own, though, 25 percent absentee might give you
some concern about the validity of your results”?
A. 1f that is all 1: had, 1 would probably be a: bit
concerned, ves.
Rd. Okay. You did not include, 1 believe, any kind of
correction for Oriental votes in Dallas County; is that
right?
A. What do you mean correction for 1t?
@. Control for Oriental?
A. No.
Q. Do you have any information as to the size of the
Oriental population in Dallas County?
A. I don't know about Oriental per se. I remember when the
data were being inputted, the column for ‘others’ which would
include Orientals as well as other foreign, other Asian-
Americans, Aleut, native Americans and others, I don't
Engstrom - Cross — Godbey
remember the percentage, but numbers weren't very large.
Q. In 19807
A. Right.
Q. How size do you think, what size do you think an ethnic
group can reach before it is of a size before you need to
start controlling for it in your regression analysis 1n
Dallas County?
A. It isn't simply a matter of size, 1t 1s also a question
of concentration. If it 1s a very small percentage of the
area, and fairly disbursed, it is going to have absolutely a
minimal impact on coefficient.
QR. And at what size do you start getting concerned about
the ethnic group?
A. Well, I don't know that there 1s a cut-off number.
Q. Five percent?
A. If there were a group that was five percent and
residentially concentrated, then, no, probably wouldn't even
at five percent.
Q. Ten percent?
A. If I had reason to believe that there was a systematic
direction of voting behavior I might, I don't know. I have
never even thought about 1t.
RB. That is just something vou haven't looked at?
A. It is, 1 haven't looked at it because ——
GQ. Okay.
24
23
Engstrom - Cross - Godbey 2-142
A. I mean it is in the ‘other' category, in the sense that
the proper comparison 1s between, in this situation, Blacks
and all other voters.
Q. I believe you said on direct that what you were doing
here is descriptive essentially 1n your regression analysis,
homogeneous precinct analysis as opposed to trying to
determine causal factors?
A. I believe that 1s a fair statement, yes.
Q. Would you equate descriptive with explanatory?
A. No .
Q. Explaining to the Court and to us what happened 1n the
results without necessarily telling us why 1t happened?
A. Well, if by explanation you mean identifying divisions,
then, yes. If by explanation you mean explaining why people
behaved as they did, then no.
Q@. Okay. Descriptive is probably a better term than
explanatory, since it may be a little mushy?
A. 1 am comfortable with the word descriptive as applied to
the analysis.
Q. Causal analyses in the social sciences are kind of
tricky issues, are they not?
A. Hell, lI don't know it is limited to the social sciences,
but, yes, I would say causal analyses -- I don't know what
you mean by ‘tricky’. I mean, there is always questions of
whether one has included all possible causal variables.
Engstrom —- Cross - Godbey 2-144
1 @. Okay. They are not simple, they are complicated?
2 A. There are probably causal analyses that are relatively
3 simple as well, but as a general matter, 1t 1s a more complex
a analysis than a descriptive one.
9 Q. Okay. You wanted to look at all the various factors
6 that might impact whatever it is that you are analyzing; 1s
7 that right?
8 A. Excuse me”?
9 @. You want to look at all the various factors that might
10 interact with the phenomenon that you are analyzing?
Yl A. In causal analyses?
ie Q. Yes.
13 A. You would hopefully have, you would hopefully have all
14 of them.
15 QR. In the real world, of course, you can't find all of
16 them?
17 A. In the real world of social science, I don't know that
18 we could find all of them, if we knew what all of them were.
iS I'm not sure we could measure all of them. The question of
20 other variables out there persistently hangs over social
21 scientists head”
ec Q. What you do in the social sciences, since you can't live
23 in a perfect world and find all of them, is to try to find
24 the best ones that you think are most likely to impact the
es phenomenon you are watching and analyze those; 1s that right?
=
es
Engstrom —- Cross - Godbey 2-145
A. I think that 1s a fair statement, yes.
Q. In fact, what some people do in the social sciences, at
least, is examine the different possible factors and see
which factors have the strongest correlation with the
phenomenon you are analyzing and use that to support their
causal argument; isn't that right?
A. Some people probably would do it by looking at, simply,
correlation coefficients. But I'm not sure that by 1i1tself
would be acceptable any more.
Q. Wouldn't you at least agree with me that when you find a
common thread or correlation between results, that at least
points to that element as being an 1mportant element in the
process?
A. Well, correlations don't tell you the magnitude of
impact. They only tell you the consistency. For example, in
these numbers, we could have high correlations and very
minimal differences in candidate preference.
QR. 1 see. I am perhaps using correlation in a colloauial
sense and that is not correct. We are saying the R is the
correlation coefficient?
A. Yes.
Q. You could have a very high R and have a very low slope,
and that would show there 1s not too much relation between
what you are looking at?
A. Well, some people say there is a very consistent
Engstrom —- Cross - Godbey 2-146
relationship, but it may not be of a great magnitude.
P. Right. I was using correlation in the sense of when you
see an increase in one, you see an 1ncrease 1n the other.
A. All right.
R. And the flip side, when you see an 1ncrease 1n one, you
see a decrease 1n the other.
A. Okay. Can you use the word ‘association'?
Q. Sure. Would you agree with me what you found 1s a
strong association between results that at least point to
this element as being 1mportant?
a Oh, yes. That element, or something that element is
related to.
RQ. Okay. If I could ask you to turn again to Plaintiffs’
Exhibit D-2, which is your analysis of Dallas County. Do you
have that in front of you?
A. Yes.
Q. Based on the analysis you have done, would you agree
with me that in Dallas County Judicial elections between 1980
and 1988 approximately 60 to 70 percent of the White or non-
Black voters are going to go for Republican candidates
regardless of the race of that candidate?
A. Yes.
QR. And also based on the analysis you have done here, would
you agree with me that in Dallas County between 1980 and
1988, something above 90 percent, let's say, of the Black
Engstrom - Cross —- Godbey e—147
1 vote is going to go for the Democratic candidate regardless
Zz of whether that candidate 1s Black or White?
3 A. Yes.
a Q. Just looking at the relation between the race of the
5 candidate and the electral success, your data shows, does it
6 not, that five-sevenths of the time the Black candidate
7 loses; is that correct?
8 A. Lorrect.
Q Q. Your data also shows that seven, seven of the Democratic
10 candidates lose; is that right?
il A. In terms of total votes cast, yes. Loses the election.
12 RQ. Loses the election, right?
13 A. LCorrect.
14 Q. Would you agree from that, that a partisan affiliation
15 is at least a strong factor in the outcome of Judicial
16 elections in Dallas County in the '80's?
17 A. In terms of who wins and loses?
18 RQ. Yes.
19 A. Yes, sir.
20 @. Would you agree there 1s a stronger association between
el the partisan affiliation of the candidate and success than
ge there is between the race of the candidate and success”?
23 A. Yes. In terms of actually obtaining the office?
24 RQ. Yes.
2S A. Yes.
Engstrom - Cross - Godbey 2-148
@. You have spoken, I believe, about candidate of choice of
the minority community in the course of your testimony; is
that correct?
A. Okay.
Q. And by that, I take it you mean the candidate who
obtains the majority of the vote of the Black voters?
A. Correct.
Q. In this case of the Black voter; 1s that correct?
A. Correct.
$l. Your data again, on Exhibit 2, shows that five—~sevenihs
of the time the Black candidate is the candidate of choice of
the Black voters?
A. That's correct.
RQ. And your data also shows that seven-sevenths of the
time, the Democratic candidate is the candidate of choice of
the Black voter; is that correct?
A. That's correct.
@. Would you agree with me that partisan affiliation of
Judicial candidates in Dallas County 1s at least a strong
factor "in determining who the candidate of choice is of the
Black voters?
A. 1 would say that party 1s obviously related to the vote.
I mean you use the word ‘determinative', I don't know what
the causal variable is, or what the motivation behind the
vote is. Party, 1 would assume, links up very strongly with
24
es
Engstrom - Cross - Godbey 2-149
candidate choice.
Q. Okay. In terms of predicting, if 1 were ba ask you to
predict who the candidate of choice would be, would you
rather know the race of the candidate or the partisan
affiliation of the candidate in Dallas County 1n 19807
A. Partisan affiliation.
Q. One way, we were talking earlier about controlling for
different variables, one way to control for the partisan
factor in Judicial elections is to look at Primaries, isn't
it?
A. To control for, you mean to eliminate the 1nfluence of
party?
Q. Yes.
A. But the problem is, you are only looking at part of the
electorate.
BP. Lorrect. In that part of the electorate, partisan
affiliation is not going to affect the choice?
A. Among that part of the electorate.
Q@. All right. Have you done any research into the volume
of straight-ticket voting among the Black community in Dallas
County?
A. The volume of 1t7
Q. Yes.
A. No.
Q. To what extent Black voters vote straight ticket?
24
2%
Engstrom —- Cross - Godbey 2-150
A. In the fact of pulling the lever?
Q. Yes.
A. l don't know.
R. Would you agree with me that if there were -- well, 1n
fact there were over SO percent straight ticket Democratic
voting among the Black voters in Dallas County, that alone 1s
a sufficient condition to make all Democratic cdndidaten.
under your definition, candidate of choice of the Black
voters?
A. If over half voted straight party ballot?
Q. Yes.
A. Therefore, all Democratic candidates would be candidates
Of choice?
QR. Of necessity under your definition?
A. In their elections given the candidacies to choose from,
yes.
@. All right. Approximately how many times have you
testified in Voting Rights Act suits?
A. Oh, I would assume about 13.
Q. Okay. It is correct, is: 1t not, that you have only
testified on behalf of plaintiffs?
A. I have only testified on behalf of plaintiffs. That 1s
correct.
Q. Correct. I guess, actually, in your deposition, you
said on a couple of occasions, 1 believe, that defendants had
24
25
Engstrom - Cross —- Godbey 2-158)
consulted with you about the possibility of testifying?
A. Yes, 1 have been employed. I mean I have had defendants
come and talk with me about testifying.
Q. And although vou would not, as a social scientist, being
prudent, you would not make any causal conclusions, you did
note that after you had told them that your results did not
support their position, they did not retain you to testify;
is that correct?
A. No, 1 can't say that. I mean, I would say, 1 mean, I am
trying to reconstruct it, 1: think 1 have, in fact, at one
point, I worked extensively for defendants, and thls was when
the defendants were representing the City of Birmingham,
Alabama, and I was doing & study of discriminator slating
practices in Birmingham. I did not testify, because the
plaintiffs did not go beyond the basic Gingles factors and
the trial judge said therefore he wouldn't hear any testimony
dealing with other things. When it came to questions of
racially polarized voting, which I was not involved with 1n
that case, on at least two occasions, defense attorneys have
come to visit me at the University of New Orleans and
discussed evidence reqguestions. And on another occasion, 1
received a phone call from a defense attorney somewhere in
northern Florida. And after discussing the -— in two cases,
1 don't know what, I mean I was about to leave the country
for responsibilities overseas, I think, if I recall
24
es
Engstrom - Cross - Godbey 2-152
correctly.
@. So, there are alternate causal hypotheses?
A. In one of them, 1 don't know. On one of them, I just
said I would be an honest expert and I didn't hear from them
again.
Q. Please understand in the next two questions I don't mean
anything pejorative by this, particularly in this crowd. 1
understand that you are a registered Democrat; 1s that right?
A. In Louisiana, we do have voter registration by party and
on that form, I am listed as a Democrat.
Q. You personally characterize yourself as liberal; 1s that
right?
A. I believe 1 probably do.
Q. And based on, at least based in part on the experience
that you have gained in working as an expert witness, your
general view is that plaintiffs' claims in Voting Rights Act
cases generally are valid?
A. Well, I would say that in situations, empirically my
experience is that when they come to me with their claims, 1
believe they have been valid. You said generally, I mean I
don't know about all the other Voting Rights Act cases out
there.
Q. But generally, based on your experience, you do believe
that plaintiffs' claims are valid?
A. The ones I have testified in, I believe they have been,
24
25
Engstrom - Cross - Godbey 2-153
yes.
MR. GODBEY: Pass the witness.
MR. HICKS: I have nothing.
THE COURT: Anyone else on this witness?
MR. GARRETT: I have a couple of other questions,
Your Honor.
REDIRECT EXAMINATION
BY MR. GARRETT:
Q. Dr. Engstrom, did you have an opportunity to look at the
question of variation of voting among these Democratic
candidates?
A. Well, among Democratic candidates generally across all
the General elections 1n 1980 for District Court Judge, ves.
Q. What did your examination reveal?
A. That there is a range in support for Democratic
candidates and vice-versa, Republican candidates then.
@. What range did you discover?
A. That the variation, and this would be '80, '82, 'B4,
'86, because 1 believe in '8B8, there was only one contested
election, but the variation would range from 10 percentage
points difference up to 17 percentage point difference across
District Court elections on the ballot.
Q. Does that lead you to any conclusion?
A. Well, there is something other than party voting going on
out there, yes.
Engstrom — Redirect - Garrett
MR. GARRETT: Thank you very much. Pass the
wiltness.
MR. GODBEY: Your Honor, again, for the record, this
was not any analysis that was done on time 1n accordance with
the Court's discovery cut-off. This is the first I have
heard of this analysis, I believe. And it was supposed to be
all concluded by August 25th.
MR. GARRETT: Your Honor, this was in rebuttal to
questions he raised about straight-party voting.
THE (COURT: If you want to question him on it, you
MR. GODBEY: Okay. Sure.
RECROSS EXAMINATION
BY MR. GODBEY:
Q. I am not sure that I entirely understood from thé brief
direct exactly what it was that you were doing. You were
looking in each year at the returns for Black Democratic
Judicial candidates in Dallas County as compared with other
Democratic Judicial candidates in Dallas County?
A. No, I was not. I simply looked at the percentage of the
vote that was received by the Democratic and the
Republican candidate in District Court elections in 1980,
'82, '84 and 'B6. And what I discovered was that there is a
range in terms of the percentage of votes received by the
candidates of either party. And the differences can be as
24
ES
Engstrom —- Recross - Godbey 2+1SS
much as 10 percentage point differences down to, or up to the
17 percentage points difference in the proportion of the vote
that went to the Democratic candidate.
Q. So, you are looking at all contested Judicial races 1in
Dallas County across the '80's and the difference between the
best Democratic candidates and the worst Democratic
candidate can be as much as 10 percent?
A. Can be as much as 17 percent.
Q. As much as 17 percent?
A. Percentage points difference.
@. Okay. Did you correlate that in any way, or maybe I
need to say associate that in any way to race of the
candidates?
A. No.
Q. Did you correlate that in any way or associate that in
any way with whether it happened to be a Presidential
election year?
A. No.
Q. Did you correlate that in any way or associate that in
any way in connection with whether or not the Democratic
Judicial candidate shared the same name as the most popular
disk jockey in Dallas County, Texas?
A. No .
Q. In fact, was the high Democratic vote getter Ron
Chapman, do you recall?
2&4
25
Engstrom —- Recross - Godbey e156
A. I don't recall the name.
Q. Okay. You are not from Dallas, of course?
A. No, 1 am not.
@. You don't know anything about local factors like this;
is that right?
A. Yes. I think that is a fair statement.
Q. Okay. And I gather you did not undertake on a year-by-
year basis -- now, actually, first let me ask you, 1f you did
this on a year-by-year basis that would take into account, or
I guess the term is ‘control’ for whether or not 1t was a
Presidential year or an off year General Election?
A. 1'could look at that, I did 1t on a year-by-year basis.
Q. What you are testifying here today 1s the aggregate does
not control for that?
A. No. I am saying the range, all right, in terms of how
much he two party vote may differ across Judicial contests
was as, the lowest was a ten percentage point difference in
the vote for Democratic, or vice-versa, Republican
candidates. And it reigns as in one year as 17 percentage
points.
QR. Again, just to be sure I am understanding what you are
saying, when you say the low, you mean out of all the
elections, you looked at, you found one where the point
spread difference between Democratic and Republican was only
10 percent?
I
Engstrom - Recross — Godbey 2-197
A. In one year. In other words, what I looked at was how
big the spread was by election year. All right. What was
the biggest spread from the Democratic candidate who did the
best, the Democratic candidate who did the worst in terms of
percentage of votes received? And what I am reporting is the
lowest spread was 10 percent for one, any one year. All
right. It went up to as much as 17 percentage points in
another year.
Q. Okay.
A. The other years were in between 10 and 17.
QR. All right. And you didn't do any kind of investigation
of that to see whether the Black Democratic candidates were
doing better or worse than their brethren Democratic Judicial
candidates?
A. 1 did look at see where the Black Democrats were, and I
will say they tended, if 1 recall correctly, they were in the
bottom half, but not necessarily always last.
Q. Oh, really? Your recollection is they were in the
bottom half on each of the years of contested Democratic
Judicial races?
ol. Ac ‘an overall maliter.
Q. Do you remember how many campaigns you analyzed”?
A. I don't remember offhand.
Q. Do you remember approximately how many?
A. Can I take a look?
24
25
Engstrom - Recross - Godbey 2-198
Q. Sure.
A. "Forty-four.
RR. Between 1980 and 19887
A. Correct.
Q@. And your testimony is that if you in each year compare
the average votes for the Black Democratic Judicial
candidates in that year, 1f any, to the average vote overall
for Democratic Judicial candidates that you found
consistently the Black Democratic Judicial candidates ran in
the bottom half of all Democratic Judicial candidates?
A. No, not every one was necessarily in the bottom half.
Q. But your testimony 1s, as a general matter, they were in
the bottom half?
A. Let me check. Yes, actually, I did not systematically
determine that.
Q. Okay. So you don't really know about that?
A. I can't give you the numbers on that.
MR. GODBEY: Pass the witness.
MR. GARRETT: Nothing further from this witness,
Your HONor.
THE CDURTY 2 Thank you, Doctor, You may step down.
We will take 13 minutes.
(Brief recess.)
(Open Court.)
THE COURT: These flowers were delivered with this
2&4
ed
2-189
note, so that whomever is responsible for this will know
that, A, I received the flowers, and, B, that I doc like them.
And the note says, "From the lawyers who are currently
harassing your husband. If he forgets your birthday, put him
in this doghouse." And there 1s a little Snoopy doghouse
that is stuck down 1n the flowers. And I, on behalf of Mary
Jane, thank you very much. I appreciate it. So that we
might enjoy some of these proceedings, I will leave them 1n
here and you all can look at the flowers while you are taking
the next witness, who 1s?
MR. R105: The intervenors are going to be
proceeding at this time, Your Honor. We are not resting, but
they are going to go.
THE COURT: All right. Intervenors, get with 1t.
MR. CLOUTMAN: Thank you, Your Honor. Ed Cloutman
for the Dallas intervenors, plaintiff intervenors. We have
not yet formally offered our exhibits, Your Honor, and there
is a comment I need to make about these along with their
offer.
THE COURT: All right. And are they contained in
this notebook?
MR. CLOUTMAN: No, Sir. They are in a blue-covered
set that 1 tendered to Mr. Polino as well, Your Honor.
THE COURT: Yes. They are right underneath the
flowers.
e=1&60
MR. CLOUTMAN: That 1s a good place. There are some
comments about those, Judge, I need to make. One, by
agreement with the defendant, defendant intervenors, Dallas
County, we are withdrawing Exhibit 12. l1 don't think it has
been taken out of your set. It 1s not being offered.
Secondly, we need to correct a vote total at least for
Exhibit 22, which we will do and hopefully substitute by
agreement a corrected copy on that exhibit.
THE COURT: Which exhibit is that?
MR. CLOUTMAN: Exhibit 22 1s an election canvas
computer run for candidate and intervenor, Jesse Oliver. The
total 1s wrong. I believe that the numbers, by precinct are
not, and we need to check those. And by agreement, I believe
counsel for the —-
THE COURT: 12 1s being thre away.
MR. CLOUTMAN: Thank you, Your Honor.
THE COURT: 22 is being corrected to reflect what?
MR. CLOUTMAN: Only the vote total at this point,
Your Honor, We will check it for any other errors 1t might
contain. Finally, Your Honor, there is an Exhibit 21(a), it
ie not in your volume, which we will tender to the Lourt. 1
understand there is no objection to 1t. It is the election
returns that should have been in the notebook for Mr. Royce
West for the General Election that he endured. His Primary
Election 1s in the notebook. If I may approach the clerk?
THE ‘COURT: You may.
MR. CLOUTMAN: Everybody else has a copy, Your
Honor.
THE CDURT: I will insert, admit and insert 21(a).
MR. CLOUTMAN: Thank you, "Your Honor.
MR. MOW: Did you offer them?
MR. CLOUTMAN: Yes, I have offered them.
MR. MOW: Bob Mow for the Dallas defendant
intervenors. We have some substantive objections to some of
them. It might save time 1f I do them now.
THE LDURT: Why don't we do them now?
MR. MOW: Because I would like a running objection.
THE COURT: All right. Fine.
MR. MOW: As to Exhibit 25, and 1 can describe to
the Court, and all the exhibits that go with 1t. Exhibit 29
relates to an analysis of non-Judicial elections, some city
elections and some issue elections, non-partisan. We have an
objection that they are legally irrelevant to the Judicial
elections being analyzed here. They have other issues,
special issues, non-partisan factors involved, and hence, we
object to all of them that are related to this one. And
there are several 1n there. I won't detail them all.
THE COURT: I am going to admit them. I feel like 1
am compelled to do so, and I do. I think your objection goes
to weight. I] will recognize that in the Mayor's race there
24
25
2-162
would be a lot of different factors that would enter into
that besides race. Besides that, I take a Dallas paper, and
they are always telling me things like that.
MR. MOW: May I have a running objection, then, to
all the exhibits and all the testimony on non-Judicial races?
THE COURT: Absolutely, you do.
MR. MOW: The only other substantive objection 1
would have would be, that I am aware of at this time, to
Exhibit 29, which is a series, it 1s an ad 1n the Vance-West
race and a series of articles from the newspaper. My
objection is that other than the ad, which speaks for 1tself,
it is hearsay, which doesn't have any substantial
equivalency, trustworthiness, because 1t quotes & lot of
newspaper reporters and so forth.
THE COURT: I understand that. This 1s from, I
don't even know which paper it is from, as a matter of fact,
the ad.
MR. MOW: I don't object to the ad saying what it
Says.
THE COURT: I understand that. But 1 don't, this
doesn't even reflect which paper this appeared in.
MR. CLOUTMAN: The ad, Your Honor?
THE COURT: The ad in 29.
MR. CLOUTMAN: Both papers, Your Honor. The news
articles were not offered for any truths of the statements,
24
23
2-163
only they ran regarding the ad, and the ad is identified in
deposition.
THE COURT: That 1s what the rules say, counsel.
You spoke well. Thank you. I will admit them.
MR. CLOUTMAN: Thank: you, Your ‘Honor.
THE COURT: I am not going to read the articles for
the truths of the matters asserted therein. Mr. Banks was
here yesterday, but he couldn't take 1t, so he had to leave.
MR. CLOUTMAN: I might say, also, Judge, that with
respect to those exhibits, that you are going to take into
consideration about the weight, that 1s the non-Judicial
elections, they are simply for examples of exogenous
elections that we have heard some testimony on regarding
races at large that affect the same, what we have identified
as the Black area precincts in Dallas.
Your Honor, we would call as our first witness, Joan
Winn White.
THE COURT: Raise your right hand, please.
(Witness sworn.)
JOAN TARPLEY WINN WHITE, WITNESS, sworn
EXAMINATION
BY THE CDURT:
Q@. Tell me your name, where you live and what you do,
please.
A. My name is Joan Tarpley Winn White. I live in Dallas,
24
23
White - By the Court e—-164
Texas. I am the Administrative Judge for the City of Dallas.
RQ. And were you here yesterday?
A. No, Your Honor, 1 was not.
@. Thank you very much. Well, give me a little bit about
your background. Tell me about your schooling, law school,
all of that.
A. 1 have a Bachelor's Degree from Dillard University in
New Orleans, I have a JD Degree from SMU Law School. And
that degree is now some 21 years old. I have been 1n private
practice of law, I have been on the County bench in Dallas, I
have been on the District bench in Dallas. I have worked for
the Federal Government in legal capacities and now
Administrative Judge for the City.
THE COURT: All right. Fine. Go ahead.
MR. CLOUTMAN: Thank you, Your Honor.
DIRECT EXAMINATION
BY MR. CLOUTMAN:
Q. Ms. White, I will refer to you by your present last name
as White, you are the same Joan Winn, are you not, who ran in
1980 for District bench in Dallas?
A. I am.
MR. CLOUTMAN: For the record, Your Honor, this 1s
the person who I was referring to when I referred to Judge
White, or Ms. White.
BY MR. CLOUTMAN:
24
25
Wnite — Direct — Cloutman 2-165
Q. Would you also, for the record, state your race?
A. I am a Black female. I will give you race and sex, I am
a Black female.
@. Ms. White, if you will tell the Court with respect to
your Judicial experience, when was the first time you held
any form of judgeship in Dallas?
A. 1975. May lst, 1975, 1 was sworn in gs Judge for County
Court at Law.
@. How did that come about?
A. I was appointed by the Dallas County Commissioners’
Court.
B. AY right. Did you stand for election in that Court?
A. Yes.
@. All right. When did you stand for election 1n that
Court?
A. In 76, 1 guess. It was not contested. It would have
been the first even year, so it would have been '76.
Q. You did not have a contested race?
A. No.
Q. Thereafter, did you hold any other judgeship 1n Dallas?
A. Yes. In 1978, 1 was appointed to the 191st District
Court.
Q. For the record, is that a civil or criminal bench in
Dallas?
A. That is a civil bench.
24
£3
White — Direct - Cloutman 2-166
RQ. All right. How long did you hold that judgeship?
A. Until November, 1980.
Q. Did you stand for election in November, 19807
A. 1 did.
Q. Who was your opponent?
A. Charles Ben Howell.
RQ. What 1s his race?
A. He 1s White.
@. All right. Tell the Judge the outcome of that race.
A. Mr. Howell won.
Q. In connection with your race for that judgeship, Ms.
White, will you tell the Court what you did in terms of
campaigning efforts, in a summary way? ;
A. Well, we began the race by attending a class on how to
run a political race. We, being myself and a good friend who
was my campaign manager. We followed that up with reviewing
prior races for the purposes of targeting various precincts
that we needed to lock in on. We hired a political
consultant to help us with the media advertising. We
obtained a treasurer, 1 guess maybe, I don't know where 1n
the process we did that. That, by election law, one must do
that very early. We began to raise funds, and then we began
to put on the campaign, i.e., to run. We did bumper
stickers, put bumper stickers on cars, yard signs in yards,
wear t-shirts, sent out postcards, sent out mailings, hand
24
ES
Wnite — Direct - Cloutman e—-167
shakes, go out and around in the community, out and around 1n
the shopping centers, do coffee clatches. Just the general
‘get out amongst the people' type campaign, in addition to
the very selected targeting that we were doing for mailing.
Q. Did you limit your campaign tc any particular part of
Dallas County?
A. Limit it totally? There were some precincts that we did
not funnel any money to, in terms of putting in mailings into
or actually walking in the area of the blocks or anything
like that.
RQ. Stated it another way, I am sure there was some almost
400 precincts in 1980, you didn't touch all of them, did you?
A. No, we did not.
QR. Short of taking each precinct, were there areas of town
that you could identify that were White or Black, the race of
the citizens who lived there, that you did not try to
campaign in?
A. Yes.
Q. And where were they?
A. There are some precincts in Dallas —-- well, my campaign
proceeded on the basis of four major quadrants. There are
four county commissioners plus a county judge, each county
commissioner has a quadrant. My campaign operated on the
basis of four major quadrants, and we took quadrants, and 1n
those quadrants, then determined which, if any, of the
24
25
White — Direct - Cloutman 2-168
precincts showed by prior history to be swinging any way.
Q. By swing, you mean?
A. By swing I mean, by prior history, by prior election,
where there were variables other than both candidates being
White males. If the precinct showed a history of being able,
of voting the candidate rather than voting something else,
whatever that something else might be at that time. And
based on our analysis, yeah, you could determine in Dallas
County there were certain precincts in the County
Commissioners' District 1 predominately, heavily in 1. And
then scattered throughout 2, 3 and 4, there were, and I
suspect still are, 1 have not looked at them, but precincts
that by prior history will show they have never swung to vote
in any other way other than the White candidate.
Q. All right. I take it by your last answer, you
identified these precincts as White or predominately so?
A. Oh, ves. Yes, definitely predominately White.
Q. Tell the Judge whether you enjoyed any endorsements for
your particular bench race, and if so, what they were?
A. Yes, I had endorsements. I had endorsements of the
Dallas Morning News, the Dallas Times—-Herald. I had the
preference poll, at that time, the Dallas Bar Association was
doing preference polls, and the outlying suburban bar
associations were doing preference polls. So 1 had the
preference polls for the Dallas Bar Association, all of the
White — Direct — Cloutman c— 169
* 1 outlying bar associations that were engaged in that activity,
2 and I don't remember them now. I think Garland, Mesquite,
3 Irving.
by Q. You say you had them, you mean you were the person they
5 picked in their poll”?
b A. Right.
7 Q. Far the bench?
8 A. Exactly. You asked me the endorsements that I enjoyed.
Q Yes, I had those. I had the endorsements of both major
10 newspapers, the Dallas Bar Association and the outlying
11 suburban bar associations. And then there are various groups
i2 I do not now remember.
4 13 BG... All right.
14 A. I considered those to have been the major ones.
15 Q. By the time you ran for the 191st bench, how much
16 experience on any bench had you had?
}7 A. Well, from '75 until 'BO, five years.
18 Q. How would this experience compare to that of your
19 candidate, Mr. Howell, Judge Howell?
20 A. To my opposition? He had none.
21 Q. What were his qualifications as he advertised them?”
fc A. As he advertised them?
23 Q. As he campaigned.
24 A. I honestly don't remember Mr. Howell ever said anything
25 about his merit.
2&4
25
White — Direct —- Cloutman 2-170
@. All right. Did he say anything about your merit in his
campaign that you can recall”?
A. Yes. That is what I remember about his campaign, 1t was
all, that is what I remember. That 1s not to say 1t wasn't
there, but what I remember about it was that 1t was venomous
and it was a very vehement attack on the affirmative action
candidate that I was, and that had I not been an affirmative
action candidate, I would not have been in position to be the
incumbent for the 1%91st. Mr. Howell, the impetus of Mr.
Howell's campaign was very racial. And that 1s what 1
remember about 1t. I don't remember he ever said anything
good about himself, it was always very derogatory about his
opponent, 1.e., me.
MR. CLOUTMAN: Those are Exhibits 30 and 31. We
tender the exhibits, Your Honor.
BY MR. CLOUTMAN:
Q. You told the Court that you enjoyed endorsements, do you
know of any endorsements your opponent enjoyed in that race?
A. "No.1 don't. Not, certainly not within the legal
community.
Qa. You don't recall any?
A. No .
Q. All right. You told us earlier that the results of that
General Election was that you lost the race for District
bench?
White — Direct - Cloutman 2-171
A. That's correct.
Q. All right. And you previously testified in your
deposition as to some vote canvas, that was attached to your
deposition, and I offer now as Plaintiff Intervenor Dallas
County Exhibit 17. From reviewing that, can you tell us
whether you enjoyed the support of majority Black precincts
in Dallas?
A. Yes, we had the support of the Black community.
Q. How would you characterize that support, barely, all of
it, most of 117
A. No, 1t was very strong. As close as anybody probably 1s
going to ever get to 100 percent. I heard the expert say
earlier, ninety-eight point something. |
Q. With respect to —-
A. Hearsay.
Q. I'm sorry?
A. 1 had percent, ninety-eight something point percent.
Q. Have you had a chance to analyze whether you enjoyed a
majority of the voting strength of what are identified as the
White voting precincts?
A. Oh, yes, ] have had the opportunity to analyze that.
Q. Did you enjoy the majority of the precincts?
A. No.
Q. Now, there has been a number of questions asked, at
least inferred, that in Dallas County if you are willing to
White — Direct — Cloutman
run as a Republican, you may stand a chance of winning. Do
you hold an opinion as to whether you would stand a chance of
prevailing as District Judge 1f you ran as a Republican in
Dallas County?
THE ' COURTY: Just a moment.
MR. RUBARTS: I would object to this because she
hasn't been qualified to offer an opinion as to whether she
could win as a Republican or not.
THE COURT: Overruled. She can have her opinion
about whether she could or could not.
A. Are you asking me —-- ask the question again.
BY MR. CLOUTMAN:
Q._ 1 would be glad to. Do you have an opinion as to
whether you, if you ran as a Republican in Dallas County,
whether you might win, would that make a difference to you?
A. I think if I ran as a Republican, this is coming up,
1990, the likelihood is that I would win. I think that is
going to get old in the Republican Party, and I think Blacks
need to stop. From my perspective, 1, as a Black person,
would not go running to the Republican Party today expecting
to be elected from now on merely because 1 was Black. 1
think the Blacks will begin to draw opposition within the
Republican Party and the honeymoon will be over.
@. Do you have a view as to -- well, would you, aside from
that particular result, run as a Republican in Dallas County,
White — Direct — LCloutman c—173
1 and if so, why, if not, why?
ec A. I personally would not run.
3 Q. Why not?
4 AR. Well, essentially for the same reasons that Judge Hicks
2 enunciated. ] was appointed, however, by a different
é Governor, I was appointed by Dolph Briscoe. But I was
7 appointed by a Democratic Governor, and I, too, have been
8 asked to run on the Republican ticket and have declined. And
4 I remember very well what one of my —-- I guess I can best sum
10 it up by saying this, remember who brought you to the dance,
11 you may need a ride home. And the Republicans didn't get me
12 to the dance. So, I had better be sure I remember that ’
wight bECauEe tie scales may switch one day. I don't, 1 secondly
14 have a very strong philosophical grain about Judicial
15 positions and what that position carries with 1t as
16 responsibility. And whether the party and switching party
17 helps you carry out your mandate, and 1 personally would not
18 switch parties to do that.
19 Q. Are there any other reasons that you would not run as a
20 Republican in Dallas County today?
cl A. None other except nationally, I guess, I don't subscribe
ec to most of the ideology of the Republican Party. If I were
£3 going to get into a mold to say I am a Democrat or I am a
24 Republican, then I would have to want, I would want to be at
25 least SO percent of the time, most of the time, agreeing with
r=
25
White - Direct — Cloutman 2-174
what the party was espousing.
MR. CLOUTMAN: Passe the witness, Your Honor.
MR. RUBARTS: Your Honor, I am Bobby Rubarts for the
defendant intervenor, Judge Entz. Your Honor, before I get
started, 1 have, we have not offered our exhibits, either.
We have got a map of Dallas County, 1f you would like 1t,
while we are talking about 1t.
THE. COURT: Sure.
CROSS EXAMINATION
BY MR. RUBARTS:
Q. Judge White, we met when you were in your deposition
earlier this month, didn't we?
A. Yes, sir. Just vaguely.
Q. Earlier in your testimony, you were talking about
Charles Ben Howell and some of the things that he did in his
campaign against you, you told Judge Bunton about some of
those things and offered some newspaper articles. What we
didn't talk about during that time was that Charles Ben
Howell is not the normal candidate for running for a Judicial
election in Dallas, 1s he”?
A. We certainly hope not, don't we?
Q. In fact, at your deposition we talked about, you know,
some other things he has done. He sues his opponents during
Judicial elections, although fortunately, he didn't sue you;
ig that correct?
NE NI my EP RE TPT Te
White — Cross — Rubarts e—175
A. Unfortunately, he wins.
Q. He spent days in jail for contempt of Court, he has
appeared in Court in his pajamas. You say, your wards, that
he is, "a very shady character" and has "no integrity" and in
fact, speaking with others that you know 1n the Dallas Bar,
your words again, they describe him as having "possible
mental disturbance"; isn't all of that true?
A. Sure. Yes.
Q. So, Charles Ben Howell, in fact, is not a typical White
candidate running for Judicial office in Dallas County
against a Black opponent, is he? You are not telling Judge
Bunton that is the norm, are you?
A. No, sir. 1 am not telling Judge Bunton that that 1s the
norm. In fact, I think that Charles Ben Howell is probably |
the only candidate who came outright and labeled it racist.
He is the only one that has just across in the papers said
affirmative action. It may have been an undercurrent in
other races, but in the race for the 191st in 1980, Charles
Ben Howell is the only candidate to my knowledge that ever
come out and called, vou know, flat out said, “Hey, don't
elect that woman," and gave all the reasons why, based on
race.
B. That's right. He is the only one. Now, whether or not
you would run as a Republican, that is your choice; right?
That is a personal choice that you have made that you
NAR Seer aie Cea Pica oo gue a sacs
White — Cross — Rubarts e—-176
wouldn't run for office as a Republican; correct?
A. Of course.
Q. Now, no one 1n the Republican Party has said that you
can't do that, have they?
A. No. To the contrary.
Q. In fact, they have invited you in?
A. Yes.
Q. Correct? Now, also earlier, you were talking about the
first time that you were appointed to a Judicial office, and
in 1975, you were appointed to the County Court at Law in
Dallas which 1s a Court of Record; correct?
A. That's correct.
N
Q. And at that time in 1973, at the age of 33,. you were the
first Black female to be appointed to a Court of Record in
Dallas County; isn't that true?
A. That's correct.
@G. And it was a five-member Commissioners' Court in Dallas
County, all five of the members of whom were White males; is
that true?
A. That's correct.
Q. Then after you were appointed to that bench 1n Dallas
County, there was publicity in Dallas County, there was In
fact, publicity nation wide, about you being appointed to
this office, wasn't there?
A. That's correct.
24
25
White — Cross - Rubarts e-177
@. And it was all favorable?
A. That's right.
Q. And then in 1978, when you were appointed to the Civil
District Court, 191st Court, again, there was local
publicity, it was front-page news that was all favorable,
wasn't 1t?
A. Yes.
f.. And in fact, later on while you on the pench, "D*
Magazine, which His Honor may be familiar with, a local
publication in Dallas, talking about the restaurants in
Dallas and parties people are having in Dallas and whatnot,
they ran a feature on the best and worst in Dallas, and they
named you one of the best judges in Dallas County, didn't
they?
A. Yes.
Q. I mean, you got a lot of favorable publicity 1n Dallas
County for your efforts on the bench, and that was rewarded
in the campaign, as you said, you were endorsed by many well-
known attorneys, many of whom were White, both newspapers,
the Dallas and Irving and Garland Bar Associations, C0OJ, and
you got all these endorsements and the only thing that Howell
was, was just a Republican; right? No endorsements from
anyone?
A. The CRJ, counsel, did not exist at that time. You
listed it among the endorsements that I had, and I Just wish
CAT ETT SR ST I AS INT
White - Cross - Rubarts 2-178
to correct that for the record. And, no, I really do not
believe Mr. Howell won because, probably, only because he was
a Republican. I believe just what I said earlier, that Mr.
Howell won because he made sure that the voting electorate in
certain areas that we had already targeted as areas that
would not vote Black, he made sure those areas knew that I
was a Black candidate.
G. 1 apologize, ']l didn't realize the C0QJ did not exist at
‘that time. Now, the only thing that Howell had going for him
at this time, in. addition to being a Republican, was he had
run for Judicial office several times before in the '70's,
hadn't he?
a. Yes.
Q. He had run and lost. And in addition to that, he had
been in the newspaper for so many other things he had done in
the Courtroom; correct?
A. Yes.
a. And so, even if the publicity wasn't always favorable,
he had had publicity out there, and sometimes negative
publicity works as good as positive publicity as far as
getting name recognition; isn't that true?
A. I never believed 1t as being true.
@. Then, in 1980, the head of the ticket was President
Carter, and at that time, our hostages had been held by the
Iatola for something like 400 days. Do you remember that?
24
25
White — Cross - Rubarts c—-179
A. Yes.
QQ. And you will candidly admit that the overwhelming
majority that President Reagan got in Dallas County against
President Carter in that election, that had some effect on
your election results as well, didn't 1t?
A. I said to you in deposition, I say to you again, I
really don't know. I never looked back to see by what
percentage Reagan beat Carter in Dallas County. So, I really
don't know.
Q. I think you Just said your gut instinct tells you that
1s probably right.
A. I said my gut instinct from watching political races
over the years, and stated that there 1s a quote, unquote,
coattail effect.
Q. In fact, in that election in 1980, you garnered 47.6,
nearly 48 percent of the vote cast, didn't you?
A. That's correct.
RQ. And that is 48 percent, you, as a Black candidate, and
there were four Anglo Democratic candidates running for Judge
as well, you ocut-polled them, didn't you? I mean, your
election results of forty-eight peocint, 47.6 percent, were
higher than your fellow Democrats; isn't that true?
A. I think that's correct, yes.
Q. All right. And one other thing, I wanted to talk about
some of the precincts you were mentioning earlier. You won
White — Cross — Rubarts 2-180
% 1 several Anglo precincts in the two thousands, which 1s east
e Dallas County, didn't you?
3 A. Yes.
4 @. And the same thing for the three thousands, which is
8 southwest Dallas County; correct?
é A. Are you asking me 1f we won some predominately White
7 precincts in the three thousands? Yes.
8 Q. Yes?
Q A. Yes, we did.
10 Q. In the four thousands, you also won some predominately
il White precincts in south Dallas County; correct?
12 A. Right.
13 RQ. All right. And 1t was Roy Orr, who was a White man,
14 Democrat, who helped you out in several of the White
13 Democratic precincts; 1s that cerrect?
16 A. What I testified to earlier, counsel, was that Roy Orr
17 was at that time Commissioner in the fours. Tyson was
18 Commissioner in the threes, and both of them helped to get
1¢ the White vote out, and that 1s how we managed to carry some
20 of the White votes in the White, Stedbminately White
21 precincts, in three and four.
ee Q. I'm sorry, it was Tyson as well as Orr then?
23 A. That's right, 1n three.
24 MR. RUBARTS: Thank you very much.
25 MR. TODD: Your Honor, I have an unspecified number
r=C
2%
2-181
of follow-up questions. But it won't be many.
THE COURT: Now ] finally get to judge. I determine
how many are many.
CROSS EXAMINATION
BY MR. TODD:
Q. Ms. White, looking at your Exhibit 30, you are referring
to this, if you can see it from here, a little article that
appeared back in the paper that starts off, "Forty-one days
off is too much," and has a little picture of Howell; is that
the one?
A. I would have to see 1t. am not, 1 have not seen it,
counsel.
QR. I can't read it, the exhibit. I note the word "'news' up
here is on the page, 1 can read that, but ]l can't see what is
in this article or this ad. Is affirmative action, I see the
words “affirmative action', is that the term you are
referring to by which you feel —-
A. My 1 see 1t?
Q. Yes. May I approach the witness?
THE COURT: You may.
BY Mb, TODD:
Q. That, I believe, is your Exhibit 31 or 30. I A want
to make sure, is that -— that is all 1 have. All right.
Page 2 of 30, maybe there is a clearer version on the top.
May I approach the witness again with a better copy?” May I
White — Cross —- Todd 2-182
1 violate the one-approach rule?
Zz THE COURT: You may violate it this one time.
3 MR. TODD: That is the last time.
Ly THE COURT: The next time you have a witness, you
S don't even get to approach.
6 BY MR. TODD:
7 Q. Now, 1s that the article? I mean the ad?
8 A. I remember these. I remember the one you have in your
9 hand about the 41 days, because I remember my campaign and
10 how angry they were about that. Then I remember this 70
1 Sereant reversal rate, because, I remember this because I was
12 angry about that one.
13 Q. Now, the aspects of that that you consider racial is the
14 affirmative action; 1s that correct?
15 A. An affirmative action appointee and former Federal
16 bureaucrat with virtually no experience as a practicing
17 courthouse lawyer, also has a& high absentee rate.
18 Q. All right. Now, looking at the negative things he said
19 about you, there 1s nothing about high absentee rate. Let's
20 start with the last one, that 1s inherently racial by 1tself,
el right?
ee A. No.
23 Q. Nothing about reversal rate high or low that is
24 inherently racial standing by itself; correct?
25 A. Correct.
SIT DE PRESTR ERC TE ATID Pore
White — Cross - Todd c—-183
1 RQ. The term ‘Federal bureaucrat' 1s not highly regarded in
g Dallas County, is 1t? I mean, in Dallas County, it doesn't
3 help you to be called a Federal bureaucrat, does 1t?
2 A. I don't know.
5 Q. Okay.
6 THE COURT: Please tell me someplace where you think
7 that would help.
8 A. New Jersey.
9 THE COURT: Did vou get that, Mr. .Polino?
10 BY MR. TODD:
11 Q. It is the term ‘affirmative action' that really makes
12 you feel like that 1s the racis)l undercurrent in this ad,
I isn't 1t7
14 A. Sure.
15 @. Okay. The term ‘affirmative action' also 1s often used
16 in connection with sex as well as race; correct?
$7 A. Yes.
18 RQ. Okay. If there are any voters, to the extent there
19 might have been votes in Dallas County who did not know your
20 race, they would at least know your sex by your name, Joan;
21 correct?
ee A. That's correct.
23 @. And they would know you are the Democratic nominee 1f
24 they knew anything else about you; correct?
29 A. That's Correct.
/ Ys
PITRE AOE CY TEE I TIT PT 2 TB
24
2%
White - Cross - Todd 2-184
QR. All right. So, it is at least possible that
‘affirmative action’ refers as much to your being a female as
being a minority race?
A. If you were an abstract voter in a vacuum, that 1s
possible.
Q. In fact, there has, earlier, there has been testimony
throughout the trial that District Judge races are down
ballot races and are low profile and receive by and large
less media attention and are less well-known to the public
than other electoral races; would you agree with that
assessment?
A. Yes.
Q. Okay. So there could be voters, a sizeable pocket of
voters, who would not know much at all about the electoral
contest between yourself and Mr. Howell?
A. Yes, that is possible.
@. All right. And for those voters that -- I have already
covered that. Now, actually, you were questioned a moment
ago about how well you did in Commissioners' Precincts 3 and
4. In evidence is your Exhibit 17 of the Dallas Plaintiff
Intervenors. You have seen the breakdown of the returns by
precinct, have you not?
A. Yes, sir, I have seen them.
Q. All right. And you know that earlier there was a
mistake or a misunderstanding, precinct numbers had been
ho 3 03 PTE RS ANT ATTA RR RT A ET I TNS NDT SN RE FRAT DR rR
Fra dia i cal tah er re Ri 3 a
White - Cross - Todd 2-185
misaligned with the ethnic percentage when we talked before
in your deposition; is that correct?
A. That's correct.
Q. I had been assured by your attorney that the figures 1
am now operating from are the correct ones; is that your
understanding also”?
A. Yes.
Q. Okay. Now, again, the exhibit speaks for itself, it is
in evidence for anyone to resd it. I just want to get your
reaction. It looked to me in going through it, and
committing the thirty-three hundreds, which would fall into
Commissioner Tyson's precinct; correct?
A. That 1s the three thousands.
Q. I am looking at the precincts that begin with the number
33.
AR. Okay.
@. But that is in Commissioners' Precinct 3. Which
quadrant, isn't that the, wouldn't that be the southwest
quadrant, roughly, of Dallas?
A. No, sir. Southeast, west. We can't make east be west
in Dallas County.
Q. All right. It appeared to me that of 37 precincts in
which Whites make up two-thirds or more, many times 80 or 90
percent of the vote, you carried 30 of those precincts. Does
that sound like what you, how well you remember doing?
White - Cross - Todd 2-186
A. I would have to say yes. I don't remember today how
well, you know. What I remember, your question asked me 1f 1
remembered if that No. 30 1s what I remember today as how
well I remembered, whatever I tried to say, 1n 1980. I
can't, I can't answer you that. I said, "Oh, yeah, we got 30
precincts in the three thousands." I don't remember that
detailed.
Q. How about the proportion of the precincts in the, the
voting precincts in the County Commissioner District 3 that
were predominately White, two-thirds to 90 percent White
that, whether you remember 1t as 30 or net, but you carried
the overwhelming proportion of them.
A. That would not surprise me. I remember that we had to
carry the three's, across. We had to have the majority of
the numbers in the precincts that began with three. And
everybody had to do that in order to win in Dallas. Excuse
me, take that back. Anyone who has ever won a county-wide
race in Dallas County has had to carry the three's.
Q. And you not only carried the three's, you carried the
White three's; isn't that right, most of the predominately
White three's?
A. Yes. You have to carry the three's, Black and White.
Q. All right. And in the four thousands, although the
proportions aren't quite, do you recall that of the precincts
that are BO percent or more White, that you carried half of
24
25
White — Crosse - Todd 2-187
them?
A. 1 didn't realize that we had done that well, I Ccicn't
remember us doing that well.
@. Do you have any reason to dispute 1t?
A. No.
Q. In fact, so that in those two County Commissioners’
precincts, would it be fair to say that the endorsement or
support and help of these very influential politicians, the
County Commissioners, was enough to overcome whatever racial
opposition there might have been?
A. No.
pS» Ckay. But at least it didn't stand in the way of your
doing quite well among White voters in those two precincts?
A. I'm not trying to be, well, argumentative, counsel. You
switched the question on me. What I am attempting to testify
to is that but for the help of the White commissioners as a
Black female, I would not have done as well. And even with
their help, it was not sufficient to overcome what we had
already targeted as the bastion places, that you could not
swing from a White vote.
Q. All right. In other parts of the county?
A. No, even in the three's and four's. We didn't carry
every precinct in the three's and four 's.
Q. All right. And your opinion, 1n stating your opinion as
to whether or not you might win as a Republican, your view 1s
White — Cross - Todd c—-188
that by 1990 you don't think you could because the honeymoon
would be over?
A. No, sir, that is not what 1 sald. l said in 1990 1
probably could win.
Q. All right.
A. But that question asked anyone, not only me, Just as a
speculative, look down the title and tell me if as a Black
person, and if you run on the Republican ticket rather than
on the Democratic ticket, you are going to, you are going to
win. And what I am saying 1s, 1f I may.
RQ. Yes.
A. As an observer of Dallas politics, there was a time 1n
Dallas when there was no Republican Party.
BR. Right.
A. And you ran on the Democratic ticket.
Bg. Right.
A. And the Primary was hotly contested.
Q. Yes.
A. And you had to come out of Primary. But if you won
Primary you had essentially won the General Election.
Q. Correct. Okay.
A. From my perspective and having watched politics in
Dallas County, it is my testimony, just purely opinion.
Q. Yes.
A. That there will come a day in Dallas County when the
White - Cross - Todd 2-189
Republican Primary will become hotly contested and it will
cease to be a protected area. If you are Black, you are
going to lose that. I mean, 1t 1s not going to be all
protected and shielded by the Republican Party any longer.
They are not going to try to funnel their opposition off onto
other races. It is going to be wide open Primary like what
the Democrats at one time had, and I am saying 1t 1s my
observation that when that day comes, frankly, I think the
Black Republicans will stand a harder chance to win. ] think
what we are up here debating today will rear its head again,
and you may have some racism coming out of the Republican
Party.
]
Q. Okay. Two points off of that answer. First of all, 1s
it at least your testimony you feel pretty confident you
could win as a Republican in 19907
A. Yes. There is still kind of a shield of protection
there right now.
Q. After that, you have an opinion based on speculation
that that could change, but right now we don't really know
what will happen after 1990, do we?
A. Counsel, 1 think it is patron, is that the word?
B. Patronizing?
A. Fraternalism, patronism, all of that that goes into when
you, when any kind of entity is attempting to bring more
people in or whatever, you are going to try to keep that
White — Cross - Todd 2-190
1 protected area.
z BG. Right.
3 A. I am saying that if you Just tunnel out there and
ay project ten years from now, I don't think that protection
5 will maintain.
& Q. Okay. Ten years from now, the protection might not be
7 there.
8 A. That 1s exactly what I am saying.
SQ Q. Now, the other point, you mentioned once upon a time in
10 Dallas County and the rest of Texas, the Democratic Party,
11 the Democratic Party Primary really was the election, wasn't
12 it?
13 A. Yes, at one point 1n time 1n Dallas, that 1s true.
14 Q@. All right. And the General Election really just
15 ratified the results of the Democratic Primary?
16 A. Uh-huh.
17 Q. Isn't 1t true that now we are pretty close to the point
18 where in Dallas County the Republican Party performs that
19 function. If you want to get elected to a Dallas County
20 office, the Republican Primary is the ball game; isn't that
21 right?
22 A. You are right thee.
BE3 Q. And back in the days when the Democratic Party served
24 that function for Texas, anyone who wanted to be elected to
£5 an office, Judicial, administrative or whatever, regardless
White — Cross - Todd 2-191
1 of philosophy, even a lot of people whose philosophy was
e really more of Republican than Democrat, it was understood
3 you have got to run and win in the Democratic Primary if you
4 want to get elected to office; right?
or A. That's correct.
6 @. And now 1n Dallas County, we are getting to the point
7 where that 1s true of the Republican Party, isn't 1t, that
8 description?
Q A. Yes, that 1s right.
10 MR. TODD: Pass the witness.
ii REDIRECT EXAMINATION
ie BY MR. CLOUTMAN:
13 @. Ms. White, briefly, do you recall 1n 1980 whether there
14 was any official or even unofficial Republican Party
15 statements condemning Candidate Howell for his comments and
16 campaign against you?
17 A. There warBAtt any official. There was some unofficial
18 comments.
19 Q. I am taking about the Dallas County Republican Chair,
20 did he come out and say, "We disavow this, we don't want
21 this, we don't like this"?
gc A. No, not shat I remember.
£3 @. About that time, Mr. Rubarts asked you about that time,
2&4 your name and photograph had been fairly widely disseminated
ea in the Dallas press, had 1t not?
White - Redirect - Cloutman 2-192
A. Yes.
Q. In the news articles, "D" Magazine articles?
A. Yes.
Q. Full color pictures and articles about you; isn't that
true?
A. That's correct.
Q. Would it be fair to say that you had a fairly good
identification factor in Dallas County, both by name and
face?
A. That is fair.
Q. Do you recall whether -- strike the question. Mr.
Howell went on to win the race, of course. Do you know 1f he
has won any successive races for judgeship, any judgeship?
A. Yes, he has. He continues to win. He 1s presently on
the Dallas Court of Civil Appeals.
Q. You were asked also about precincts that were
predominately White that you may have carried. You are not
telling the Court you didn't get any White votes are you?
A. No, not at all.
Q. As a matter of fact, vou tried to get White votes,
dign't you?
A. Absolutely. I would have won the race 1f we could have.
Q. Do you know of the some one hundred ninety plus 90
percent White precincts in Dallas County, how many of those
you carried?
White — Redirect — Cloutman 2-193
A. No, not just to know how many 1 did, huh-uh. I have
sense enough to know 1f we carried close to 48 percent of the
total vote, 1 f we carried 48 percent of the total vote, we
had to carry &@ large number of predominately White precincts.
What I do remember, we just could not break through some of
the precincts 1n the Commissioners' District I.
MR. CLOUTMAN: Pass the witness, Your Honor.
MR. PUBARTS: Nothing further, Your Honor.
MR... TODD: I have nothing further.
THE COURT: You came within three questions of too
many . You may step down. Thank you, Judge. Call your next
witness.
MR. CLOUTMAN: Fred Tinsley, Your Honor.
THE COURT: If you would, please raise your right
and take the oath.
(Witness sworn.)
MR. CLOUTMAN: Your Honor, 1 have taken the liberty
of excusing this witness. I take 1t no one has any
objection.
THE COURT: If she wants to go home, that's fine.
MR. CLOUTMAN And that might not be true with the
rest of the witnesses.
THE COURT: You don't want to. go back to Dsllias, do
you?
THE WITNESS: Of course. That is my home. I was
born there.
THE COURT: Talk to the other judge about Odessa.
FRED LELAND TINSLEY, JR., WITNESS, sworn
EXAMINATION
BY THE CDURT:
RQ. Tell me your name, where you live and what you do,
please.
A. My full name is Fred Leland Tinsley, Jr. I am a lawyer
in Dallas. I have been practicing law for a total of about,
about 135 years. I am a Board certified Criminal Law
specialist since 1980.
@. Give me a little bit about your educational background.
A. I graduated from the Southern University School of Law
in Baton Rouge, Louisiana in 1972. And I also obtained my
Bachelor of Law Degree at Southern University. Before going
to law school at Southern University, I attended high school
in Georgia and Louisiana. As my father was retired from the
military, we moved around a lot.
QR. You have been practicing in Dallas then ever since you
got your license”?
A. That's correct, since 1974 in Texas.
Q. You have done mostly criminal defense work?
A. That's correct.
THE COURT: All right. Go ahead.
DIRECT EXAMINATION
Tinsley - Direct - Cloutman 2-195
BY MR. CLOUTMAN:
Q. Mr. Tinsley, if you would, tell ithe Court about —- first
identify yourself by race, please.
A. I consider myself to be Black.
Q. Tell the Court, if you would, beginning with the oldest
in time of all elections you have participated in as a
candidate in Dallas, or the Dallas area.
A. More recently, I ran as District Judge of the 193th
Judicial District Court of Dallas County, while I was serving
an unexpired term in 1986.
GB. "All right. Prior to that?
A. Before that 1 ran for the Criminal District Court No. 4
of Dallas County in 1984, and previous to that, 1 was a
candidate for the Dallas school board in the middle '70's, 1
think it was around 1976.
Q. Are those the three races you have participated in as a
candidate in the Dallas area?
A. That is correct.
Q. With respect to your Judicial races, let me take you to
the oldest one, the 1984 race. Tell the Court who your
opponent was, please. The one for the Criminal District
Court No. 4.
A. 19847
Q. Yes, sir.
A. My opponent was Frances Maloney.
Tinsley - Direct - Cloutman 2—~1%94
¢ 1 Q. Her race?
e A. Her race 1s White. She was a female, by the way, for
3 the record.
3 B. All right. Were you sitting as an incumbent 1n that
5 Court at the time of the race?
6 A. The incumbent was Judge John Mead, who had made a
7 decision to retire after about 27 years of service.
8 QR. Okay. I take it 1t was an open bench?
q A. It was an open bench. That's correct.
10 Q. Were there any other opponents in the General Election?
11 A. Say that again?
12 Q. I'm sorry. Did you have any other opponents, just the
¢ 13 two parties?
14 A. Just the two parties. I don't think there was an
15 independent in the race.
16 RQ. Prior to that time, did you have an opponent 1n the
17 Democratic Primary?
18 A. 1 did not.
iT @. All right. Tell the Court what happened in that race,
20 please.
el A. I was defeated, my opponent won.
ee MR. CLOUTMAN: Reflected, 1 believe, Your Honor, 1n
23 Intervenor Dallas Exhibit 18.
24 BY MR. CLOUTMAN:
25 Q. With respect to that race, Mr. Tinsley, can you tell the
SRE 1
0S Eo 6 Dube 6 Sr Ase AR SRE
RGR
Tinsley —- Direct - Cloutman 2-17
1 Court what endorsements or sponsorships you enjoyed?
, A. There was a co-endorsement by the committee for a
3 qualified Judiciary. Also known as the CQRJ. I was also
a endorsed by one of the dally newspapers. To my best
5 recollection, I think 1t was the Times-Herald. 1m not sure,
b6 but it was one of the papers endorsed me and one endorsed my
7 opponent.
8 P+ Al right.
9 A. And I was also endorsed by other groups, suburban bar
10 associations and others, but I don't have specific recall.
11 QR. Now, it is fairly obvious from the name of the Court you
i2 were running for, but can you tell the Court whether 1t was a
13 criminal or civil bench?
14 A. It was a criminal bench with jurisdiction over felony
1% criminal matters.
16 B.. All right.
17 THE COURT: That was a great question. Criminal
18 District Court, you know. What else could 1t be? Why don't
19 you just answer, "Oh, no, it handled all civil matters", and
20 see what he would say.
el MR. CLOUTMAN: In Dallas, you never know.
ee BY MR. CLOUTMAN:
23 Q. All right. Mr. Tinsley, what was your experience for
24 such a position at that time?
2S A. Some time previous to 1984, I had made a decision to
TP PI EAT NET I TA Sr
Tinsley — Direct - Cloutman e—198
1 handle only criminal matters, both trial and appellate, and
2 as 1 said earlier, I saw fit sometime during the year 1979,
3 to be Board certified in that particular area. It was also
4 around that time that 1 ceased the general practice of law by
3 handling everything that walked through the door.
6 Q. Is it fair to say that your practice was then limited to
7 criminal practice only from that point on?
8 A. That's right, Still is.
GQ. All right. How did your experience compare to that of
10 your opponent, Frances Maloney?
: 51 A. I recall one incident, I wanted to apply for Board
ie certification in 19792 and I didn't have the compilation of
¢ 13 all of the different cause numbers in matters that 1 had
14 served as counsel on in the different categories that were
15 required. So I heard that through the District Clerk's
16 office, you could obtain a printout of all of the cases that
17 you appeared on as attorney of record in Dallas County. I
18 then obtained such a printout. I also saw such a printout
19 for my opponent, and I think if you stacked the computer
20 paper up, 1 probably had about three inches from the bottom,
21 compared to my opponent's about one centimeter.
2e Q. Is it fair to say that you had substantially more
£3 criminal practice than she did?
24 A. That is correct.
25 Q. Was experience made a race 1ssue, that 1s an 1ssue in
ETE IRI septa
24
2%
Tinsley — Direct - Cloutman e—199
the election contest?
A. 1 tried to. 1 don't think I was successful 1n doing so.
Q. What were the issues that you can recall?
A. That was one of the 1ssues, and the reason that was an
issue in that particular race, as I stated earlier, Judge
John Mead had been on the benches, a combination of benches
for some 23, 24 years, and my position in terms of espousing
the policy was that experience should be retained to some
extent, because Judge Mead had been on the bench so long and
he was retiring. And, of course, I did try to make that an
l1ssue.
Q. Were, there issues other than experience that arose in
the campaign?
A. I don't recall any, other than what I tried to do.
@. Your campaign was unsuccessful and you lost the vote.
Can you tell us, when you examined the returns of the 1984
race against Frances Maloney to see whether you enjoyed the
support of the majority of the Black area precincts?
A. Yes, 1 have.
Q. And did you?
A. Say that again.
Q. Did you enjoy that support?
AR. Yes. I was the overwhelming choice of the Black voters.
BB. All right. Did your enalysis or your review of the
campaign returns, election returns, rather, reveal that you
mn
24
2S
AEST Stay prs oe
Tinsley — Direct - Cloutman e-200
had any White support, White voter support?
A. Yes, 1] had some White support, not as much as I wish 1
could have gotten.
Q. Did you analyze whether your opponent got any Black
support at all, whether other voters supported his candidacy?
A. I was the overwhelming choice of the Black voters and my
opponent was the overwhelming choice of the White voters.
Q. During your 1984 race, do you recall any newspaper press
that covered the race at all?
A. I think 1t was very minimal. I recall maybe about two
occasions where the race might have even been mentioned in
the press. They usually, when you have 36 State District
Courts, we now have 37 since the first of this month, Dut .]
recall most of the newspaper references to Judicial races was
by group, since there were so many Courts up for election.
Q. Do you recall, from those minimal news articles how you
were identified, if you were identified?
A. No, I don't, to be honest with you.
MR. MDW: Your Honor ——
A. I don't remember.
BY MR. CLOUTMAN:
Q. Mr. Tinsley, you ran again in 1986; is that right?
A. That's right. In January of 1986, I was appointed as
Judge of the 195th District Court in Dallas County by
Governor Mark White. The 199th Digtrict Court is, by
Tinsley — Direct - Cloutman 2-201
1 designation, also a criminal, a felony Criminal Court.
c Q. Who was you opponent in the November, 1986 General
3 Election?
he A. My opponent was Joe Kendall.
S Q. All right, Lan you state for the record Mr. Kendall's
6 race”
7 A. He 1s White.
8 Q. How did you do 1n that race?
Q A. I lost that race as a matter of fact, and he won the
10 race.
: MR. CLOUTMAN: Described, Your Honor, in Intervenor
ie Dallas Exhibit 20.
13 BY MR. CLOUTMAN:
14 Q. Mr. Tinsley, can you tell me again the endorsements or
15 sponsorships you obtained for your 1986 contest as appointed
16 incumbent?
17 A. All right. In the 1986 contest 1 was endorsed by the
18 Dallas Morning News and the Dallas Times-Herald, both local
19 lady papers, as well as if I recall, I won the Dallas Bar
20 Poll, preference poll among the Dallas Bar Association
ei members. And I was again co-endorsed by the Committee for
2c Qualified Judiciary, what we refer to as the CQJ, and other
23 smaller groups of lawyers.
24 Q. Can you compare your endorsements to that of your
iw opponent, Mr. Kendall, Judge Kendall?
TRIE ET TTT RE
24
25
Tinsley —- Direct - Cloutman e—202
A. The only one that I recall him receiving was an
endorsement from the CQJ.
Q. Did you attempt to compare your experience both as a
practicing criminal lawyer, defense lawyer, and as a Judge,
to that of Candidate Kendall?
A. Yes. By the way, Judge Kendall, he 1s now Judge, Joe
Kendall then, also, 1 don't think he limited his practice to
that of criminal law, but he did do some criminal work in the
Courts. And I had substantially more experience.
Q. Do you know whether Mr. Kendall at the time held any
appointed or elected positions in the Judiciary?
A. No, i don't. Il don't think'he did, bul 1 don't know.
Q. All right. Did you examine the returns of the 1986 race
to determine whether you enjoyed the support of the Black
voting precincts?
A. Well, again, I was the overwhelming choice of the Black
community, and my opponent was the overwhelming choice of the
White community.
Q. Do you recall any news press you or your opponent in
that race received with respect to that race”?
A. I recall some press in the endorsement section of the
paper, and I recall some press with respect toc my job duties
when we had high profile cases being tried.
BP. All right.
A. Where there was a public interest. That 1s about it.
Tinsley —- Direct - Cloutman e203
@. Do you recall whether any of those news articles ever
identified you by race?
A. I am pretty sure, I don't remember any specific ones to
be honest with you.
Q. Would you say that by 1986 that your name identification
was a little better than 1t was 1n 19847
A. I don't know. 1 hope that it was. I received a larger
percentage of the vote, total votes cast than I did the
previous race.
Q. Did you again attempt to campaign and receive any votes
outside the Black voting precincts?
A. Yes. I tried to get every vote that 1 could. 1f.3
could have, I would like to have received 100 percent of all
votes, Black and White.
Q. I take it you had a campaign effort that did not limit
itself to the Black voting precincts?
A. That's right.
Q. I may not have asked you, did you have the same campaign
strategy in 19847
A. No. 1 didn't. In 1986, 1 tried to be a little more
sophisticated. ] tried to, '] tried to Campaign in the White
community, but 1 also tried to limit my exposure in terms of
allowing them, because of historical circumstances, to know
that I was Black and my opponent was White.
Q. Why was that?
24
eS
Tinsley — Direct - Cloutman 2-204
A. Because I would have been cutting my own throat, to be
very honest about 1t. I used bus backs, Dallas City buses
with advertising on the back. And I think 1t read, "Keep
Judge Fred Tinsley", wlithout reference to race or picture or
anything like that. I alsc used yard signs 1n the White
areas where there were close to 20 percent or better White
voters. 1 also used direct mailing with no reference to a
picture, but with a theme of keeping me as Judge, as I was
already on the bench. And I limited 1t to my campaign
material that had a picture on it to the Black community.
Q. Why did you do that?
A. Because of the situation that existed that I had no
kb
control over, because of historical circumstances. My belief
at the time, and my belief still is that the majority of the
White voters were not going to vote for me, since I am Black
and my opponent was White.
@. Mr. Tinsley, you have heard some of the testimony, I am
sure, but there is a school of thought at least if you would
run today as a Republican for one of the district benches you
would. have a chance of succeeding even though you are Black.
Do you have an opinion on that”
A. I have an opinion as to myself.
RP. Yes. All right.
A. First of all, 1 don't think I could win with the label
as a Republican. ] have to stand in line behind other
24
25
Tinsley - Direct - Cloutman 2-205
people. I have seen 1t happen over and over in the
courthouse. When a Democrat turns Republican for Judge, the
first statement made by their opponent 1s that 1 have been a
lifelong Republican and he Just switched parties just to keep
a judgeship, he 1s an opportunist. And secondly. I have no
desire to give up the overwhelming support that I have
received from the Black community. I don't see why I should
have to give 1t up.
Q. Why would you give it up?
A. Because they won't vote for me if I run as a Republican.
Q. Why do you think that 1s?
A. Because of historical circumstances.
Q. Describe that for us, what those circumstances are.
A. Because the Black voter in particular, at least in
Dallas County that I am familiar with, perceives ‘the
Republican Party as not having their interest at heart. In
other words, well -—-
Q. Go ahead.
A. Here recently, my conversations with the members of the
Black community have been centered on not only the Republican
Party. but also some decisions rendered by the United States
Supreme Court ac it pertains to Civil Rights, which they
perceive to be a function and intent of the Republican Party,
for example. That is only one example.
G. Do you have others?
Tinsley - Direct - Cloutman
A. Other examples, the perception 1s that the Republic
2-206
an
Party does not have an interest in seeing the Black community
economically maintained, in seeing that the Black commun
participates fully 1n the American system, whether 1t be
social, whether 1t be legislative, whether 1t be politic
Q. Mr. Tinsley, have you considered running as a
Republican?
A. No, I have not.
Q. I take it for the reasons you indicated?
A. That's right.
MR. CLOUTMAN: We will pass the witness.
THE COURT: ‘Mr. Mow?
CROSS EXAMINATION
BY MR. MOW:
Q. Mr. Tinsley?
A. Yes, sir.
Q. I am Bob Mow, for the record. In 1984, you lost to
Frances Maloney?
A. That's correct, sir.
Q. And her name was pretty well known in the Dallas
Community, thanks to her husband, was 1t not?
Pty
al.
A. Yes. For the record, her husband 1s Robert Maloney.
called him Bob Maloney at the time. He 1s now a Federal
District Judge in Dallas County in the Northern District
Texas. He 1s a former State Legislator.
oF
We
Tinsley - Cross - Mow 2-207
1 Q. You kind of had that problem going in, didn't you?
2 A. lI certainly did.
3 Q. And then, in 1984, I believe that there were eight, not
4 36, but eight races for the Judicial District Courts that
9 were up; 1s that correct?
6 A. There weren't 36. I don't remember how many there were.
7 They all staggered where, every two years, different ones
8 were up for election. But 346 total slots.
Q GQ. Well, if I am right, and there were eight, do you recall
10 that no Democrat won in 19847
0 A. I don't know who won and who didn't, realiy.
12 G. Are you aware that in 1984 Larry Barake won an election?
13 A. Yes, I recall that.
14 BR. .For.a District Court bench?
15 A. He certainly did.
16 Q. And he is Black, is he not?
17 A. He certainly 1s.
18 @. Do you know him?
19 A. I know him personally.
20 Q. Is he qualified to serve on the bench?
el A. I don't generally pass on qualificstions to serve on the
oe bench, and I don't know in which respect you mean. I
e3 consider him to be a competent Judge.
4 Q. And he won running on the Republican ticket that year?
dni A. Say that again.
Tinsley —- Cross - Mow
RQ. He won running on a Republican ticket; right?
A. That's correct.
Q. And that, of course, was the year that President Reagan
was running again?
A. ] don't — it Could have been. I don't recall the exact
year, but I think you are right.
@. Now, in 19846, do you recall that there were more
Judicial races up for election?
A. ] don't recall that, no.
Q. Do you recall, in 1986, that any Democrat won, other
than Ron Chapman?
A. I recall that, yes.
QR. And why does he normally win, 1f you know?
A. lI don't know. Could have been a combination of factors.
I really don't know. I heard it referred té earlier here in
this forum, that he has the same name of a popular local disk
Jockey. I don't know whether that has anything to do with it
or not. 1 haven't studied it.
Q. Actually, you got close to 47 percent of the vote in
19846, did you mot?
A. I don't remember specifically, but that sounds about
right.
Q. That would mean, necessarily, that you would carry a
number of precincts that are classified as Anglo majority?
A. 1 tried to carry all of them,
24
25
Tinsley —- Cross - Mow 22-20%
@. My question is, you had to carry a number of them to get
47 percent of the vote, didn't you?
A. That's right.
Q. Now, that year, 1986, Judge Carolyn Wright was elected
to the Family Court District bench, was she not?
A. She was elected. I think she was elected about that
time.
Q. And she 1s a Black?
A. She certainly 1s.
Q. And ran on the Republican ticket?
A. She certainly did.
Q. And also that year,, an Adolph Canales got elected, did
he not?
A. I don't recall when he was elected, to be honest with
Q. Now, you don't know of any impediment to your signing up
to run in the Republican Primary, do you, Mr. Tinsley?
A. When you say impediment, what do you mean, my personal
choice?
Q. Well. I realize your personal choice 1s an 1mpediment to
you, but I mean, you can walk down and sign up to run on or |
before the filing date, can you not?
A. 1 certainly could, I guess In a vacuum, yes.
Q. And have you made any effort to try and line up any
Republican support 1f you were going to run?
Tinsley — Cross —- Mow 2-210
A. No, I haven't.
Q. So you don't know whether you would have to "stand in
line" or not 1f you ran as a Republican, do you?”
A. Well, I certainly wouldn't receive overwhelming support
of a Black community, you know. My point and my 1nterest 1s
the voters' choice. I wouldn't be the voters' choice,
possibly.
Q. That wasn't my question.
A. Okay.
Q. My question was, you don't know whether or not you would
ay get any support £r0m Republicans or the Republican Party 11
you signed up to run, do you?
A. Nos 1 con't.
Q. So your comments about standing in line are just
speculation, aren't they?
A. It is not speculation from my perspective. I suppose
another person could classify it as such, but I have seen
enough instances at the courthouse, what happened to me every
day, for something where I wouldn't want to risk 1t.
MR. MOW: I have no further questions, Your Honor.
THE COURT: Are you doing anything the week of
October the th, Mr. Tinsley?
A. October the 2th?
THE (COURT: I have got a defendant over there that
needs a criminal defense lawyer.
A. I would be glad to represent him, sir.
MR. CLOUTMAN: May I consult with my client, first?
THE COURT: You may step down. Thank you.
MR. TODD: I won't press my luck.
THE “COURT: Thank you. You may step down. Call
your next witness.
MR. CUNNINGHAM: Royce West. Your Honor, Brice
Cunningham for Dallas Intervenors for the next two witnesses.
And we will try to move speedily, Your Honor.
THE COURT: My wife thanks you.
(Witness sworn.)
ROYCE WEST, WITNESS, sworn
EXAMINATION
By THE LOURT:
Q. Tell me your name, where you live and what you do,
please.
A. My name is Royce West. I am an attorney, I have been
practicing attorney for the past ten years. In. fact,
Halloween in '82 will be ten years when I received my bar
results, Judge. I live in Duncanville, Texas, which 1s 1n
Dallas County. 1 a member of the law firm gf Brown, Robi:
THE COLIRT:" All right. Go ahead.
DIRECT EXAMINATION
BY MR. CUNNINGHAM:
=
a
EE To TE a RTT SS
West — Direct - Cunningham e~2ic
Q. For the record, state your race.
A. Black.
Q. Briefly, give us a little of your educational
background.
A. I received my Bachelors of Arts degree and also my
Masters of Arts degree in Sociology, emphasis Criminology,
from the University of Texas at Arlington. I received my
Doctors of Jurisprudence from the University of Houston 1n
197%.
0. Did you grow up in Dallas County?
A. Yes, I guess you could say that. l1 have lived in Dallas
County since the &6th grade.
Q. Give us a brief history of your employment from the time
you graduated from law school up until the formation of your
law partnership.
A. From the time that I graduated from law school -- well,
at the time that I graduated from law school, I was a —--
Q. When was that?
A. That was in May of '7S. At the time I graduated from
law school, I was a paid intern at the Harris County District
Attorney's Office. I was offered a job after taking the July
bar, so I was basically an Assistant District Attorney for
Harris County, from July through November of '79. At that
time, I took a position with the Dallas County District
Attorney's Office as an Assistant District Attorney, and
. , -
Dn os Ta 7, Ge Sed SI An Sh a eh]
24
25
West —- Direct - Cunningham 2-213
stayed there until March of 1984.
Q. What was the highest —-- well, I think in the Dallas
County District Attorney's Office, you have misdemeanor
courts and felony courts?
A. That's correct.
Q. What was the highest position you obtained in the Dallas
County District Attorney's Office”
A. I was a chief felony prosecutor.
QR. How long were you a chief felony prosecutor?
A. I think about two and a half years.
G. Are you members of any —- are you a member of any
organizations in Dallas County?
A. Yes, I am.
G. Would you tell the Judge what those are?
A. Are we saying professional?
G. Professional, social, just give the Judge an idea of
your visibility in the community by memberships in various
organizations.
A. Well, I am a member of the J. L. Turner Legal
Association, which 1s a Black lawyers' association. I was, 1
was a member of the University of Texas at Arlington Alumni
Association. President of the West Dallas Community Centers
Board of Directors, a member of the Texas Turnpike Authority,
very active with, well, Chairman of the Kimble High School
advisory committee, very active with other type civic
24
25
West — Direct —- Cunningham 2-214
organizations also, Judge.
BG. Did you run for, have you run for District Attorney?
A. I ran for District Ottorney of Dallas County in 1986.
Q. Allright, What prompted you to run for District
Attorney?
A. Well, what prompted me to run 1s that I wanted to be the
District Attorney of Dallas County.
RQ. What action did you take, 1f any, before announcing that
you were going to run for District Attorney?
A. Well, what I basically did 1s talk with precinct
—t
chairmen. I had to make a decision, number one, whether
was going to run on the Democratic or Republican ticket. I
made & decision to run on the Denorratic micket, because
looking at the field of candidates at that time, and looking
at the composition of the various political parties, I
decided that I would have a better chance to get in and out
of the Democratic Primary in the General Election by running
on the Democratic ticket. Once making that particular
decision, I talked with several people, several precinct
chairpersons, several individuals that I was going to meet 1n
order to assist me 1n putting together a viable campaign.
Q. People you talked to, were they solely Black people, or
Black and White?
A. They were Black and White.
Q. Did you run in the Democratic Primary?
West — Direct - Cunningham e—215
A. Yes, Y did.
Q. How many opponents did you have?
A. Two.
Q. Their names and races”?
A. Peter Lesser and Johr Allison, both are White.
@. Did you campaign
A. Jim Johnson originally signed up to run 1n the
Democratic Primary, but subsequent to that decided to get out
of the race.
Q. Briefly tell the Judge what your campaign efforts were
in the Primary, whether or not they were concentrated solely
in the Black community, or did you seek, seek voters from
White communities also?
A. What we did, Judge, was attempted to identify those
voters that would vote in the Democratic Primary, had a
history of voting in the Democratic Primary and targeted
those particular individuals. I realized that based on what
was happening, and thinking at this point, I need to make a
clear, 1 realized that there was a lot of people moving to
the Republican Party in the past three or four years prior to
that, individuals had been moving from the Demccratic Party
to the Republican Party. I also realized that the
minorities, be it Blacks and Hispanics, were starting to get
a stronger voice in that particular party, in the Democratic
Party. Therefore, that most of the individuals that would be
West — Direct - Cunningham e-2ié
voting in the Democratic Primary would probably be
minorities. So therefore, we concentrated efforts in the
minority community, as well as the other areas that were
traditionally identified as Democratic areas.
Q. Did you receive any endorsements during the Primary?
A. Yes, I did receive some endorsements. I don't remember
which ones they were, though.
Q. Do you know whether or not or how you were identified 1n
any articles that may have been published 1n the newspapers,
the Dallas Morning News, the Dallas Times-Herald, on TV?
A. Well, I was identified as a Black running for District
Attorney.
Q. Did vou, can vou tell the Court whether or not you
received the support of a majority of the Blacks in the
Primary?
A. I dig.
Q. And Hispanics?
A. I don't know. There is no way in the world I could tell
that. I believe, gut feeling, that I did receive 1t, though.
0. What was the result of the race against Lesser and
Allison in the Primary, Democratic Primary?
A. I won the Democratic Primary. Fithink it was, lihad
about 50.1 percent of the vote, somewhere 1n there.
Q. In other words, you won without a runoff?
ES ng 4 bn Biot Bm Sd 0
24
Cn
West — Direct - Cunningham e=217
MR. CUNNINGHAM: Your Honor, that will be found at
our Exhibit No. 21 in the book.
BY MR. CUNNINGHAM:
Q. In the General Election, can you tell the Judge who your
opponent was”?
A. John Vance.
Q. And his race”
A. White.
QR. Can you tell the Court what efforts were made during
your campaign, first of all in the Black community?
A. Well, basically, we tried to solidify our base 1n the
Black community and to expand on that base to make sure that
we maximized or attempted tc maximize the turnout of. welll,
registered voters, number one, and then after registering
those voters, attempt to maximize the voter turnout 1n those
particular areas.
QR. Were there any campaign efforts in the White community?
A. Yes.
Q. Would you tell the Court what those were?
A. Well, mailings to the White communities, attempted to
get various types of debates 1n those particular areas, have
meetings at individual's homes. We also had, 1 think Judge
Tinsley alluded to 1t, we also got a bunch of advertising on
the back of buses, to make sure that those particular, that
we identified the routes that the buses were taking, and made
Tt £ fy ms et A ro Epa LE et SSE
5 . TRY 3 x 2
West — Direct - Cunningham e~-218
sure that those particular placards that used were on those
buses going to those particular areas, trying to get the name
identification up. We also embarked on what I would think
was a pretty, pretty extensive bumper sticker campaign. We
tried to bumper stick everything in Dallas County, Judge. In
addition, one thing that we did, we went to the Dallas
Cowboys games, that 1s in Irving, Irving, Texas, right there
at«b39.
THE CDURT: That 1s when they were still playing
football?
A. Okay. All right. But what we did, at that particular
point, we had individuals that were stationed at strategic
locations around the stadium, holding up 'Go West' signs, Go
West for District Attorney' signs, for those individuals
coming into Texas Stadium. We did that for maybe about three
or four different games. So, we were very actively involved
in trying to make sure, raise the level of consciousness of
my campaign, and also to get individuals interested 1n what
proposals l had to run, continue to run the District
Attorney's Office te Dallas County.
GC. Did you receive any endorsements during the Geners!
Election?
A. Yes, 1 did.
@. Would you tell the Judge what those are”
A
A. Again, Mr. Cunningham, I really don't remember.
A A CS es TTT ee TRY
West — Direct - Cunningham e~-219
1 believe, Judge, there was a co—-endorsement by one of the
e newspapers 1n the District Attorney's race. I know 1
3 received a co-endorsement by the Dallas Police Association.
4 Q. Were you still identified as the "Black" candidate”
“ A. Yes, I was.
6 Q. I will ask you whether or not you were aware of a
7 photograph of an ad that was run by your opponent during this
8 General Election, where your picture and his picture were
Q shown? Iti'ie in the book at our Exhibit 29.
10 A. Are you saying an ad or a photograph?
7%} Q. Photograph.
12 A. Yes. I became aware of that particular photograph.
13 Q. Had you ever known, since -- 1n your experience in
14 Dallas, had you ever seen a campaign where the opponent used
5 the photograph of his opponent rather than putting his own
16 photograph on?
17 A. I believe in Joan Winns campaign that happened. I'm
18 not for sure. And thinking about it and talking to other
19 individuals, I believe it also happened to Berland Brashear.
20 QR. Berland Brashear is a Black County Criminal Court Judge;
el 1s that correct?
ge A. That's right.
e3 Q. And his opponent, a White, used his photograph”
24 A. That's correct.
ea Q. And you referred to Joan Winn and her opponent was a
Eat i OE a 30% SR ATES 0 CE AS ob Se Kt SKU Rh hl “abt SSR 3 seh Pact
West - Direct - Cunningham e220
i White male?
2 A. That's Correct.
3 Q. Did you receive, in the General Election, did you
4 receive the support of the Black community?
S A. 1 cid.
b Q. Do you know what percentage?
7 A. No. I would probably say the overwhelming support of
8 the Black community. I don't know what percentage.
g Q. Do you know what percentage of the White community, if
10 any, you received?
11 A. No, 1 really don't. Looking at the numbers of the
EY various precincts, I would venture toc say, basically
13 speculate, maybe about 10 to 20 percent, somewhere 1n there.
14 Q. And what was the result of that election?
15 A. I was defeated by about 60,000 votes county wide.
16 Q. Since -- well, have any overtures been made to you to
17 run in the Republican Party?
18 A. Well, yes.
19 Q. When was this?
20 A. There are continuous overtures.
21] Q. You have not switched vet?
oc A. No. See, I want to be District Attorney, I don't want
23 to be a -- no offense to judges, especially a Federal Judge
24 -= J] don't want to be a Judge at this on in time in my
a5 life. I want to be District Attorney.
FCN Rl BET Ch Cl Si Ear Fh Sek PEC Sh pea Sark w SEILER GELS
Ba £ GPCR WATE RW At Sele th Se
24
25
n o
Y
West — Direct - Cunningham e—2
Q. You still want to be District Attorney of Dallas County?
A. I plan to be District Attorney of Dallas County.
@. Do you plan on running again?
A. Yes, '1 do.
THE COURT: No offense to district attorneys, I
don't want to be District Attorney.
MR. CUNNINGHAM: And, Your Honor, our Exhibit No. 21
is the results in the Primary Election between West, Allison
and Lesser. 21(a) 1s the results between --
THE COURT: That 1s the one added today between
Vance?
‘ MR. CUNNINGHAM: Right.
BY MR. CUNNINGHAM:
Q. What 1s the race and membership of the J. L. Turner
Legal Society?
A. It 1s the Black lawyers' association.
@. Have you served as President of that organization?
A. I am President-Elect, currently.
Q. How many members are there in the J. L. Turner Legal
Society?
A." About 300, 830 to 300.
MR. CUNNINGHAM: Pass the witness.
CROSS EXAMINATION
BY MR, GODBEY:
QR. Mr. West, for the record, I am David Godbey, here for
24
iw
West —- Cross — Godbey 2-222
Dallas County Defendant Intervenor Judge Entz. And we met
before at your deposition?
A. That's correct.
Q. And earlier today.
JHE COURT: "What 1s this, you know, 1 am going to
introduce you, you all don't know one another? Up there 1n
Dallas, what kind of deal have you got? Never the twain
shall meet, you know?
MR. BODBEY: I have trouble keeping the cast of
characters on this side of the bar straight.
THE COURT: Allright.
BY MR. “BDDBEY:
Q. I believe, Mr. West, you testified olf you in fact
thought about running as a Republican for DAY
A. I said what 1I.-did 1s look at both the parties and
decided on which one that I felt as though 1 could get out of
the Primary and get to the General Election, and potentially
win. That was the Democratic Primary.
Q. Okay. In the Republican side, you had Mr. Sparling and
Mr. Vance running”
A. That's correct.
Q. And Mr. Sparling basically had the business community
locked up at the time you were evaluating different parties?
A. That's correct.
Q. And Mr. Vance was also trying to get some of the
24
£5
West — Cross — Godbey e-2e3
business community support behind his election in the
Republican Primary?
A. That's correct.
Q. And that 1s why you thought you would have some trouble
making 1t through the Primary on the Republican side, isn't
it?
A. Well, 1n part, yes. But let me answer that. The
District Attorney's office, as I am pretty sure you well
know, 1s the chief law enforcement office 1n Dallas County,
has been held by Henry Wade for about 32 years. And 1 viewed
the business community as not really wanting an Afro-
American, or Black person, to head up that particular
position. And to further substantiate that, in part, 1 point
you to the Dallas Board of Realtors that held various types
of endorsement meetings, endorsed John Vance, but never did
invite me to interview whatsoever to consider whether or not
to endorse me.
Q. I appreciate that comment. I think my specific question
was the reason you decided to run as a Democrat instead of a
Republican was because you believed that Mr. Vance and Mr.
Sparling, between the two of them had the support of the
business community?
A. That was part. Now, 1f you are saying the reason', I
don't think you can say "the reason’. I think there were
several reasons, that being one of them, yes.
NATE TIT TR RAY RIT TE
24
25
West - Cross — Godbey 2-224
Q. Well, you recall in your deposition when I asked you
were there any other reasons you decided to run as a Democrat
as opposed to a Republican and I believe your answer to me
then was, "No, that is the only reason.”
A. Again, I am saying the business community. When I said
the business community, 1t was all encompassed as to what I
just mentioned concerning their attitude, what [I would
perceive as their attitude towards having a Black as the
District Attorney of Dallas County.
G. Okay. That was just not something you brought out in
your deposition when you said the business support was locked
up; is that right? 3
maybe 1 should have expanded a little bit more on D
Tz
M rod
the business community.
Q. Okay. Mr. :Sperling lost?
A. That's correct.
Q. In the Primary?
A. Yes.
Q. Your evaluation, 1 believe, is that he lost in the
Republican Primary because he was perceived as a racist: 1s
that right?
A. Yes. That's correct.
G. And so at least for District Attorney candidates 1n
Dallas County in 1986 and the Republican Primary, 1t 1s a bad
thing to be perceived as a racist; is that right”?
I YT © NTE TNT Pe UE ST I A ET A ENA ET Ly
West —- Cross —- Godbey e-225
1 A. I would agree with that.
Z G. Your General Election campaign with Mr. Vance in
3 general, particularly, I guess, in contract to some of the
oy other General Election campaigns that went on, pretty well
5 stuck to the high v0ad) ls that right?
6 A. Yes.
7 Q. In fact, that was a conscious choice that you at least
8 made as a candidate, to stick to the 1ssues?
Q A. Exactly.
10 Q. And 1 take 1t you would see the General Election
11 advertisement with your picture as an exception to that
12 general high road in the campaign?
i3 A. Yes, 1 would.
14 Q. You don't know, 1 believe, whether or not Mr. Vance ran
15 the same kind of comparative advertising in the Primary, do
16 you?
17 AR." Ng, 1 don't,
18 Q. In fact, 1 believe you testified in your deposition that
19 1f he had done that same kind of comparison advertising in
20 the Primary, showing the picture of his opponent. that might
£3 affect your view of why those ads were run; 1s ths ght?
ec A. I believe 1 said that, ves.
ed Q. Do you still believe that?
24 A. Yes.
25 GQ. Okay. ls it vour opinion that Mr, Vance simply received
a Tw Ai ng Se tl Sl Se a Deh Sd ER RAL TR Aid
West - Cross - Godbey
some bad advice with regard to whether or not he should run
advertisements with vour picture?
A. I] believe that he received some bad advice as to whether
or noti to run that particular picture, ves.
Q. You don't even know 1f . Vance himself personally
approved of that ad”?
A. I wasn't present at the time.
Q. Okay. And as far as you know I believe Mr. Vance has no
motive for any, or had no motive for running any king of
racist ad in that election?
A. That is exactly the context that 1 said it
could not really conceive of any motive he had
endorse the running of that particular ad. |
0. In fact, he had just come out of a Primary Election
where his opponent lost because he was perceived as racist?
A. That is my speculation, yes.
QR. Okay. Are you aware of whether the Republican Party 1n
its campaign literature for all of its various candidates in
Dallas County will in fact run photos of candidates if they
want it?
A. I'm sorry.
G. Do you know if the Republican Party on 1ts own and on
behalf of the Republican Party's candidates publishes
campaign material with photographs of its candidates?
-
A. NO, 1 am not aware of 1t.
20
24
25
ny
~J
West —- Cross —- Godbey ee
QR. You are Just not aware of that? Okay. Similarly, do
you KIC 1f the committee for a qualified Judiciary 1n 1ts
materials on behalf of the group of Judicial candidates tha
it has endorsed as qualified includes photographs of those
candidates”
A. I am not aware of that either.
Gl. Okay. You made some comments about the degree of
support that you received in the Black community”
A. Uh-huh, yes.
Q. And that was based on 21(a), I believe 1s the number,
which is —-- 21i(a) 1s the computer generated numbers for the
General Election thet you were 1nj; 1s that right?
ry A. Are you saying the Primary or the General Election”
0. 1 think'2]l is the Primary.
THE COURT: 21 is the Primary, 21(a) 1s the General.
BY MR. GODBEY:
Q. My question to you 1s, I understand that those computer
printouts are what you are relying on and making this
statement that you received significant, 1 forgot the exact
words, substantial overwhelming support 1n the Black
community?
A. That's correct.
G. You were here in the Courtroom earlier today, [| believe;
ig that right?
A. Yes.
West - Cross - bGodbey e—-228
1 Q. And did you get to hear Just a small pilece, probably
2 would be enough, of some of the experts’ testimony as they
2 were talking about all the things they do to analyze numbers?
4 A. Yes.
S Q. 1 take 1t that you are not a professional statistician
6 or a professor of social sciences or anything like that?
7 A. "No.
8 0. ANd you didn't undertake to do any kind of analyses that
Q these expert witnesses were doing; 1s that right?
10 A. That's.icorrect.
il Q. Basically what you did 1s kind of eyeballed that
12 printout and located the precincts-that, according to the
15 printout, were more than 50 percent Black and look to see how
14 you do in those precincts?
15 A. More than 50 percent and less than 350 percent, yes.
16 Q. Okay. l don't mean to belittle it or anything, but
§7 basically that 1s the methodology, 1f we can use that label,
18 that you went through in drawing the conclusion that you
19 received the support of the Black community?
20 A. I assumed that the figures were represented to me to
cl have come from the results of my primary campeign and the
2c general election, and those results were gathered from the
BS Dallas County Elections Office.
24 Q. As far as I know that 1s correct.
£3 A. And assuming these figures are, 1n tact, accurate, 1
TT TTA
West — Cross —- Godbey e-22%
believe one only needs to be able to know what a percent 1s
and what percentage of Blacks and Hispanics and others are,
and know the number of votes that you received 1n order to
determine whether or not it was overwhelming 1n a particular
precinCt orinot.
Q. Okay. I gather that you don't know of any specific
facte indicating that any voters voted either for you or
against you strictly on the basis of your race?
A. Not any particular facts. But I would have to say that
I am pretty sure some voted for me and against me because of
the color of my skin.
Q. Okay. That is not based on any particular facts,
though, you are just assuming that given the volume of people
in Dallas County, and all sorts of different variety of
people come in that --
A. The natural course of things, you know, the history of
politics, basically.
Q. As far as specific facts, letting you know that there
were some people who voted either for or against you because
of your race, you are not aware of any”
A. No .
Q. Okay. Incidentally, you mentioned Berland Brashear had
an opponent who ran an ad with Judge Brashear 's picture in
it?
A. li. helicve that's “correct. I have been informed that did
West - Cross — Godbey 2-230
1 occur back in the early '70's, yes.
c Q. Did you ever see that ad”
3 A. No, T1.didn't.
4 Q. I guess first, you never saw one back then?
5 A. No.
& Q. And you haven't seen one since then?
7 A. No. When I answered the question, I said that I had
8 been told that that had occurred.
q 6. So your testimony on that point, I guess, was strictly
10 hearsay?
11 A. Yes
i2 GQ. And you obviously know what hearsay 1s, I don't need to
N
13.” explain ‘that to you?
14 A. Hearsay, yes, I know.
15 Q. You are at least aware, I guess, that Berland Brashear,
16 as I refer to him, Judge Brashear, won that election?
17 A. Yes, I am.
18 @. Was running as a Republican?
1% A. I believe he was running as a Democrat.
20 Q. At that time?
21 A. In the early ‘70's.
22 Q. I'm sorry, early '70's you said this happened?
£3 A. Yes.
24 QR. Okay. How did you, what did you base your testimony on
iw that Joan Winn White's opponent also ran ads with her picture
©
wn
24
es
West —- Cross -—- Godbey 2-231
in {t?
A. Back when Judge Winn was running, and it may have very
well been the situation where I saw both of their pictures in
the paper and there was a news article, but 1 really thought
1t was some sort of advertisement.
6. Okay. This 1s some personal recollection that you have?
A. Yes. And again, it 1s a foggy recollection. I believe
that during the time that Charlie Ben Howell was running
against Judge Winn that I saw that 1n the paper.
0. But I gather you don't recall any specifics like which
paper or what?
A. No, 1 reslily don't.
&. Rll right. Are you aware that there is a, 1 guess the
Canon of Judicial Ethics that places certain restrictions on
what Judges and can and not do during the course of =a
Judicial election?
A. Yes.
Q. And there aren't any such restrictions on candidates for
District Attorney; 1s that correct?
A. Not that I know of, no.
Ll. That kind of alters the character of the campeilgy as
between those two categories of offices, doesn't?
A. What do you mean?
Q. I mean you can run a completely different kind of
campaign when you are running for District Attorney than 1s
West - Cross - Godbey 2-23
1 permissible for you when you are running for Judge, because
2 of the restrictions on Judicial campaigns.
wy a v z \ = A. I guess 1n theory, ves.
4 Q. Your particular campaign for District Attorney was a
5 fairly high profile race in the Black community, wasn't 1t7?
é A. Yes
7 Q. In fact, 1t was a fairly high profile race 1n Dallas
8 County,
9 AR. Well, 1t wasn't as high profile as I had hoped 1t would
10 be, but I believe 1t was high profile.
11 0, This was the first time, certainly in my lifetime, when
12 there was a contested race for District Attorney in Dallas
13 County where Mr. Wade was not in the picture”
14 A. That's correct.
15 # I That fact alone made 1t of significant interest 1n the
16 community, did it not?
17 A. I would think so, yes.
18 Q. And 1n contrast to that kind of high profile Canna’ dn;
19 Judicial races are pretty much low profile, are they not?
20 A. Pretty much, yes.
23 Q. In fact, you would agree with me that most lawvers don't
ee even know who the judges are”
ee A. Yes, you know, unless there are, they have had some
cb extraordinary cases, something like that, yes.
Es 0. In the ordinary course, most voters don't know who the
6 SRE re Ge LRT AA Se
West —- Cross = Godbey 2-233
1 Judges are?
Ee A. That's correct.
3 Q. And the bottom line, would you agree with me that the
4 District Attorney race is far more visible and a much more
3 well known electoral contest than most Judicial races”?
& A. I would agree with that.
7 MR. GODBEY: May I have half a moment, Judge? Pass
8 the witness.
<Q MR. TODD: l] don't have any of this witness.
10 THE COURT: Thank vou. You may step down.
1} : MR. CUNNINGHAM: Your Honor, 1 would direct the
i Court's attention to Exhibit No. 29, the right-hand corner
13 where it says, "Political advertisement paid for bv John
14 Vance for District Attorney."
15 THE COURT: 1 am looking at it. Thank you very
16 much.
17 MR. CUNNINGHAM: Mr. West?
18 A. Yes.
ie THE COURT You .can't step down.
20 REDIRECT EXAMINATION
21 BY MR. CUNNINGHAM:
22 Q. Sir, I have one question for him. You indicated that
23 there was no motive for Mr. Vance running this advertisement?
24 A. l said 1 couldn't think of 3 motive why he would run
eS that.
TAREE ETA FT DT SITY
TP EC TN NE ENT Tr ene 1
West - Redirect —- Cunningham e—23%
Q. He wanted to win, didn't he?
A. He wanted to win.
MR. CUNNINGHAM: That's all.
THE COURT: Thank you very much. You may step down.
Who is the next witness?
MR. CUNNINGHAM: H.. Ron White, Your Honor.
THE COURT: Is 1t anticipated there will be many
questions of Mr. White”
MR. CUNNINGHAM: There will be some, Your Honor. I
cannot, I will probably be through 1n about ten minutes.
Your Honor, 1 would like to get him on. We brought him down
with the intention of getting him on.
THE COURT: We are going to go fast with you, Mr.
White. Not because of you, but because of Mrs. Bunton. } =
you would, come forward and raise your right hand, please.
(Witness sworn.)
MR. CUNNINGHAM: Your Honor, I realize this 1s Mrs.
Bunton's birthday. We have one other fact witness from
Austin, I would like to get some kind of feel from the Court
so I can tell this witness. Judge Oliver.
THE COURT All right. Is Judge Oliver getting
ready to go back to Dallas tonight, too, would like to go
back?
JUDGE OLIVER: Austin tonight, hopefully. Whatever
your pleasure, Your Honor.
20
THE CDURT: Well, IT don't blame you for not wanting
to spend the night.
H. RON WHITE, WITNESS, sworn
EXAMINATION
Q. Tell me your name, where you live and what you do.
A. Judge, I am H. Ron White. 1 am currently a practicing
attorney in the City of Dallas. I live at 3B09 Crown Shore
Drive in Dallas County.
Q. Give me a little bit about your educational background
and your practice.
A. Judge, briefly, I graduated from Hampton University,
which was Hampton Institute at that time, In 1962, bio—-chem
major . I graduated from Harvard University Law School 1n
1971. I moved to Dallas in 1971, was recruited by Atlantic-
Richfield Company. I practiced as their counsel in the legs!
department there for approximately six years. And from that
time on, I have been 1n private practice, until such time as
I was appointed to the bench 1n 1983.
Q. All right, And for purposes of the record, your race
157
A. Black.
GQ. And 1n 1983, you were appointed by whom to what?
A. 1 was appointed by Governor Mark White to the 301st
ateicid gal Diet yridie ti Dor,
White —- By the Court F236
1 Q. And then in 1984, you had to run?
2 A. That's correct, Judge.
3 G. And you did?
4 A. That's correct.
S Q. In the Democratic Primary?
6 A. That's correct. I had no opponent.
7 Q. You had no opponent, not opposed, and you ran 1n the
8 General Election as a Democrat and vou were defeated?
2 A. That's correct.
10 Q. Okay. Now, we are that far. Where do we go from here?
11 DIRECT EXAMINATION
12 BY MR. CUNNINGHAM:
13 G. The 30lst is a specialized court dealing with family
14 law; 1s that correct?
15 A. That's correct.
16 Q. I will ask you what endorsements, 1f any, you had.
7 A. The endorsements, I had all of the, what I consider to
18 be major endorsements. That was the endorsement of the major
1] papers, majority, the minority papers. I had a co-
20 endorsement by the CRJ, which was an organization which | was
21 one of the original members in 1t, 1t was an organization
ec that was developed for the purpose of screening Judicial
23 candidates and making recommendations as to those they
24 thought were capable of serving 1n that capacity. I also
£5 received other endorsements from the suburban bars, I
mn
White — Direct - Cunningham e—237
suppose, bar associations, which were both majority as well
as minority bar associations.
Gn And what about the Dallas Bar?
a. The Dalles Bar also. ] was an incumbent at the time.
Q. What support from the business community?
A. Well, I think that was probably a very specialized area.
I enjoyed enormous support from the Dallas business
community.
0. And why 1s that, sir, briefly?
A. I had been involved with the business community since I
arrived in the capacity of serving on the Chamber of Commerce
boards, North Texas Commission, United Way Boards, business
development boards within the city, and appointed to ea number
of committees by the Mayor during that time, all prior to
having to run for election in 1984. So 1 also served as the
President of the Dallas Black Chamber of Commerce for a
couple of years. That was, of course, back in 1976, 1
believe 1t was.
Q. I believe you represented what was called the Dallas
I +7
L Alliance in the Dallas desegregation lawsuit”
A. Ihet's correct. That was a Tairly high profile pirece of
litigation. It 3s. still going on, 1n:fact some of the
counsel here today participated in that trisl. That 1s
correct. The Dallas Alliance was a tri-ethnic organization,
consisting of major business personalities 1n the City. that
Rs Cove S00 A Eh ge LC ARMA SAAS Be I REIS d
White — Direct - Cunningham 2-238
is on the Anglo side as well as major leadership from the
Black as well as Hispanic communities. And our efforts at
that time was to try toc find a way to dissolve the school
desegregation litigation, 1f we could, between the rival
parties, that 1s the school district at that time and the
NAACP and i1ntervenors that were participating.
Q. Would 1t be a fair statement to say that when you ran
for reelection you were well known, had high visibility in
both the Anglo communities and Black community and Hispanic
community?
A. I think 1t was unquestionable at that time and was one of
the reasons why I felt that we had better than a 60-40
percent of prevailing. We had people that were head of the
Dallas Bar Association, presidents, that 1s, of the last
succeeding three years who were part of my committee and who
endorsed me and were actively involved in the campaign. We
had people who were very strong 1n the business community
such as Ray Hunt, Tramell Crow, Jr., representatives from the
Stemmons, what I call the Stemmons Camp. For those of you
from Dallas, you are familiar with some of the persons who I
call operatives and active In the ‘community In terms of
development over the years. But they were a part of the
campaign steering committee and had not only given financial
support but visible support in terms of the campaign.
BG. And the name and race of your opponent?
White - Direct = Cunningham e—23%
A. Robert O0'Donald, and his race is Anglo.
Q. And would you compare his visibility in the community
versus your visibility, if you are aware of 1t7?
A. Well, at the time, and upon surveying the lay of the
land, we determined that Mr. 0'Donald had very little
visibility at that time. He had previously been the master
for 1 believe sa.couple of years in the Family District Court,
was practicing, again, a practicing attorney primarily
involved in investments and was not apparently very well
known based upon the poll that we took. That was both 1n the
civic community, business community as well as the legal
community.
Go. The result of that race, sir?
A. The result of the race was that I was defeated.
Q. Can you tell the Court what percentage, if you know, of
the Black vote that you received, predominately Black vote?
A. It is my understanding that I received approximately <0,
98 percent, I believe, of the Black vote. Black precincts,
that 1s.
QR. What about the White precincts?
A. It is my understanding that 1 probably carried a couple
or so of precincts that might have been 1dentifiably Anglo.
That 1s the estimate.
+ Q. Were there any indications in any of the news medias with
race, or Co you recall? respect to your
White — Direct - Cunningham 2-240
%
g 1 A. HKcecan't say specifically, no. Il can't give you any
c specifics on that. There was an article that came out
3 approximately 30 days or so probably before the election that
4 was printed near the editorial by Mr. Murchison that was
3 highly negative, but that was the only article that directly,
6 I think, attacked my performance and my campaign at the time.
7 0. I don't know whether I asked you, were you, did you run
8 as a Democrat or Republican?
Q A. I ran as &@ Democrat.
10 GQ. Why?
1:1 A. Because I was appointed by the Governor, and I felt
ie committed to support the party upon reelection.
s
13 Q. Would you have run as a Republican? x
14 A. No . I wouldn't run as a Republican 1n that particular
15 race.
16 Q. Tell the Judge why.
17 A. Well, I think that basically what I wanted to do, 1f I
18 were to be appointed or elected, Judge, I wanted to be a
19 representative of, I have to be a representative of my
20 family, ow people, 1f 1 am going to run, And although 1t
21 takes everyone to vote you in, but I think 1%t 1s almost ji1ke
22 going to somecne else's home, being accepted 1n that home but
3 can't be accepted 1n your own. It raises serious questions
24 in terms of your credibility overall. The bottom line 1s
25 that I feel that to be a representative of the people I neec
White ~ Direct - Curnmingham 2-241
1 to at least receive their vote. I don't feel that as a
z Republican candidate, at least at this time 1n history,
3 things may change, hopefully it will, that the Black
4 community in Dallas overwhelmingly offered that support.
3 MR. CUNNINGHAM: Pass the witness, Your Honor.
6 CROSS EXAMINATION
7 BY MR. RUBARTS:
8 Q. Mr. White, your theory iséithat you lost the race in
Q which you ran because of the White majority voted agasinst you
10 because you were Black?
11 A. I think that 1s what the statistics will show.
12 Q. And that is solely based upon your analysis of precinct
13 returns, right? Here is a White precinct, they voted for the
14 Republican, so that is what you based your theory on;
13 correct?
16 A. That ‘ie the majority of it.
17 Q. You will admit that for your theory to be valid, those
18 White voters in those precincts would have to know that you
19 were Black, wouldn't they?
20 A. Well, I think you would probably have to have some ides,
cl unless they are following some other direction
2c 0. What if scientific evidence showed that over 90 percent
23 of the Anglos when told your name didn't know whether you
24 were Black or White, would that change your theory?
eS A. I don't know, Is that the evidence you have?
TE 5 SS STATE FT TE TAS TRA 2 SEI TIT CRIS ATR GT ree vy pe
White — Crosse — Rubarts c—-c4c
1 Q. Would that change your theory 1f that was the evidence?
e A. That 1s hypothetical. I would have to modify it.
3 Q. So it would change your theory 1f that was true, then,
4 wouldn't 117
5 A. Jidon't know. I have to look at the evidence.
6 Q. I1t should, shouldn't 1t, because 1f the White voters
7 don't know whether you are Black or White, they can't be
8 voting against you solely based on race?
9 A. Well, if you say 'solely', I suppose 1t wouldn't be.
10 MR. RUBARTS: Thank you.
il THE COURT: Thank you very much, Mr. White. You may
id step down.
13 MR. CLOUTMAN: Jesse Oliver, Your Honor.
14 THE COURT: Raise your right hand and take the oath.
15 (Witness sworn.)
16 JESSE OLIVER, WITNESS, sworn
17 EXAMINATION
18 BY THE COURT:
19 G. Tell me your name, where you live and what you do.
20 A. Jesse Oliver. I live in Austin, Texas. I am general
21 counsel for the Texas Department of Agriculture.
ee 0. All anon And you are an attorney”?
23 A. That's correct.
24 Q. Give me a little bit about your background, education,
2S practice, etcetera.
BP WE TEA TE TE Sr SS MU 1 mY a A J Se YT Sy
24
23
Oliver - By the Court 2-243
A. I graduated from Dallas Baptist University, I attended
and graduated from the University of Texas School of Law. I
served two terms 1n the Texas Legislature, one term as, two
years as District Judge of the 253th Civil Judicial Distric
Court under appointment of Governor Mark White. Prior to
that time, I was involved 1n general civil practice,
primarily.
G. In Dallas?
A. In Dallas.
Q. The 93th is: in Dallas.
A. That's correct.
QR. And did you serve with Pat Hill, who 1s present here?
A. That's correct.
Q. She 1s an observer, I understand. That is her official
capacity. All right. When you ran, you were appointed by
Governor White to the 95th, then when you ran, what party did
YOu run?
A. I ran as a Democrat.
Q. And had you run as a Democrat when you ran for the State
Legislature”
A. That's correct. Each of my prior races have been as ga
Democrat.
Q. They are out of single-member districts?
A. Right.
G. In'Dallas; right
Oliver —- By the Court D-244
1 A. That's corrects
c Q. And then as a Judge, running for the 95th, did you
3 receive any endorsements?” And 1f so, who endorsed you?
4 A. Virtually everyone who had an open endorsement. I am
S aware that I lost one local bar association endorsement, and
& I understand that my opposition had a good relationship with
7 the attorneys 1n that particular bar from previous years.
B But the Dallas Bar Association, preference poll, Committee
9 for Qualified Judiciary, Dallas Morning News, Dallas Times-
10 Herald, Dallas Central Labor Council, the Dallas weekly
J newspaper, the Dallas area women's political caucus.
: 12 Virtually everyone who made an endorsement, the Greater
13 Dallas Board of Realtors.
14 Q. You had no opponent, I take 1t, 1n the Democratic
15 Primary?
16 A. No.
17 Q. You had a Republican opponent whose name was?
18 A. JoeB. Brown, Jr.
19 GQ. Joe B. Brown, Jr."?
20 A. That's correct.
21 ® His race was White?
if A. White male.
23 QR. Your race ie Black: 1s that correct?
24 A. That's correct.
ri Q. Had he held office before, had he been a legislator?
#
AT A SET OH TN CT TT TD ST Ne AA © merger. wy OF mR was 2 77 7% ana AE Ser % oe 7 0
Oliver -— By the {court 2-245
1 A. He had been a JP early 1n the ‘70's. I guess Mr.
2 Brown's claim to fame was basically his father had been a
3 District Judge back in the '60's, and he had been AR
4 as a JP in Dallas and served there. And then I think served
n
8 short period as a Lounty Judge and lost a couple of
fo) elections. One as a County Judge, I believe, and one as a
7 District Judge, in the '70's.
8 0. How bad did you get beat?
Q A. I don't, know,
10 QR. You didn't get more than 30 percent, you know that?
11 A. That's. right. Dallas County voting returns come 1n so
12 slow and bad that I went to bed about 3:00 1n the morning
13 when I knew that we had enough nrecincts in and he had a
14 substantial enough lead that I knew thet 1t wasn't worth
15 pursuing any further. And I don't like to go read bad news
16 if:l don't have to.
17 THE COURT: }] don't either, but it looks like 1 may
18 have to read some. Go ahead.
12 MR. CLOUTMAN: Judge, for the record, that is
20 Plaintiff Intervenor Exhibit 22 1s the one which we have
el correct totale for you on,
ee DIRECT EXAMINATION
£3 BY MR. CLOUTMAN:
24 Q. Mr. Oliver, you told the Court about your service on the
23 bench, can you tell the Court of the elections that you stood
rows
Dliver — Divect —LCloutman 2-4 b
for the 95th, whether you enjoyed the majority support of the
Black AraC inital
A. That's correct. Probably better than 95 percent of the
vote 1n the Black, predominately Black precincts.
Q. You have analyzed the bad news enough to know that,
haven't you?
A. Yes.
QR. I have been asked to ask you a question somewhat off
track, but let me ask you this, are you a member, do you hold
membership presently in LULACY
A. That's correct. I am an honorary life member of LULAC
Council 100,
Q. Now, do you recall any 1dentification of you 1n the
press given the race for the 93th after your race and the
race of your opponent?
A. Not specifically in terms of an article. 1 would,
generally speaking when articles have been written about
Black office holders in Dallas County, the articles generally
refer to them as the Black candidate or the Black office
holder.
Q. How would you describe your visibility or your name
identification in Dallas, given the number of races you have
run?
A. I considered 1t to be exceptionally high, and that was
one of the reasons why I thought that I had a gooc chance of
Hliver = Direst — Cloutman 2-247
being elected 1n 1988, especially given the fact that a
Democratic candidate 1n 1986 had barely lost, that being Will
Pryor, who had been on the bench about five months and had
none of the name 1dentification and exposure that I had. 1
felt that with my involvement in the community throughout
Dallas County, that I would be in a pretty good situation
name ldentificst lon-hlee.
QR. You need to tell the Court about one thing, just prior
to your appointment to the bench you also stood for election
for State Senate, did you not?
A. That's correct.
fd. Some name ldentification, 1 take it,,was associated with
that as well?
A. Hopefully the money was well spent. We spent about
$300,000.00 1n that campaign, Rost iy media and targeting
signs, billboards, you know, major freeways, things like
that.
Q. Tell the Court about one other thing you did while
serving as Judge to increase your name 1dentification with
the voters.
A. Well, immediately after the Primary Elections were ove:
I started doing jury orientation in the central jury room,
which 1s about, oh, 1,500 to 2,000 people every week in
Dallas County. And essentially, 1t 1s a duty that requires
you to get there early 1n the morning, and so you can usually
mn
Qliver — Direct ~~ Lloutman 2-248
find other judges who have been assigned who are willing to
trade off and let you take that month. So I did about five
months of that throughout the period between the Primary and
the General Election. And basically, you have an opportunity
to get up and talk to the jurors and noi, not to campaign,
but basically to show them that.you are a nice guy.
GQ. And you did that for what period of time”?
A. Every week, not the entire period, but 1t was about five
months during the period between the Primary Election and the
General Election. The other judges were cooperative 1n
allowing me to stand in for them. Sometimes, some months we
had two that wanted to.
Q. You made an estimate for me at my request, but how many
people have you educated, 1f you will, to this general binary
practice of yours?
A. Well, if you estimate it at 2,000 people a week, you are
talking about roughly 8,000 a month, and times five months or
SO. Forty thousand people.
17}
0. Allright, Now, did you consider running as
Republican, Mr. Oliver?
A. Did li consider it?
Q. For the bench?
A. No, not really. I mean in a sense of was 1t something
that 1 sat down and evaluated whether 1 should do 1t or not
in order to win, I didn’t think 1f it in those terms. 1t was
IE De RT
i ih dare AON vv go
Qlaiver - Direct — Cloutman e—24%
considered in the sense that 1t was an option made to me
after 1 was appointed toc the bench.
G. All right. Would you consider running as a Republican
today? And if not, why not?
A. No, I wouldn't consider running as a Republican. My
political philosophy 1s closely related to that of the
Democratic Party. The philosophy of the people that 1
identify more closely with, Black citizens of Texas, identify
with the Democratic Party. l don't think that the Republican
Party 1s sympathetic to the issues that are important to the
minority community in Texas, or even 1n this nation at the
present time. So I have no desire to abandon my philosophies
Just to hold elective office.
Q. One thing I want to ask you about, in one identified
race that has come up regarding Berland Brashear, this is on
another exhibit, a Black Judge in Dallas, his opponent was
Mr. William Jacobs. Do you this man?
A. Yes, 1 do.
Q. What is his race?
A. He 1s Black.
G. Tec be listed 1n White 1s 1ncorrect?
A. That's correct.
MR. CLOUTMAN: Pass the witness, Your Honor.
CROSS EXAMINATION
BY: MR. MDW:
Nliver — LCross — Mow
Q. Judge Oliver, I believe you said Will Pryor was well
known and widely respected as a judge when he ran in 1986;
that 1e correct, isn't it?
A. Well, I said that he had been on the bench a short
period of time and was not really widely known outside of
legal circles.
Q. Did he receive a lot of endorsements and credits for
being a good judge?
A. That's correct.
Q. Compliments, and he did receive publicity on that?
That's correct.
And yet, he lost that year to Adolph Canales, did he
That's right.
Will Pryor ran as a Democrat?
Yes, he did run as a Democrat.
Q. Now, again your opinion on the support you received in
your 1988 Judicial Court race 1s based on your review of the
precinct returns?
A. That's correct.
0. And you weren't aware thet vou had approximately
percent of the vote in 19887
A. Not, 1t was somewhere in that ballpark.
that was about the last numbers that 1 saw.
BG. Now, Joe Brown's father had a pretty widely publicized
VEE rr I RL A TI KAR AN ae cP ad MEE
PDliver — Cross - Mow 2-251
name, did he not, when he was on the District bench?
A. Well, how widely publicized, 1f it was, I really can't
say because I didn't know that Joe B. Brown, Sr. had been on
the, on the District bench until Joe B. Brown, Jr. actually
entered the race against me. And then research showed that
Joe B. Brown, Sr. was.
R@. And had he had something to do with the Ruby
proceedings”?
A. That's correct. He presided over the Ruby trial.
Q. Now, your Senate District race 1n 1986, is that the
right year?
A. 15846. That's correct.
0. Your efforts 1n that race where you spent $300,000.00
were limited primarily to that district, were they not?
A. The majority of the funds were directed to that area.
However, the billboards on Interstate 435, Interstate 335,
Interstate 30, you know, leading in from Tarrant County,
coming from the southern part of Dallas, the newspaper
articles and general campaign advertisements that were out
there were available to everyone. Only the targeted material
would have been limited because they went directly into
someone's house or phone calls.
Q. Generally, where 1s that Senate District?
AR. Well, it is, In terms of what we have been talking about
here today, it would be located 1n Commissioners’ Precincts 3
OYiver — Cross — Mow 2-252
1 and &.
2 MR. PMDWs 1 have no further questions.
3 THE COURT: You would agree with me, would you not,
4 Judge Oliver, that when you have this fine rapport with all
wn
these prospective jurors that 1t probably 1s the better
6 system for the Judge to conduct all the voir dire when they
7 got ready to select the juries for the various and sundry
8 trials, would you not?
Q A. 1 wouldn't disagree with you, Your Honor. And
10 furthermore, it saves a whole lot of time.
11 MR. CLOUTMAN: Judge, 1 forgot to establish that Mr.
12 Oliver's voting address in still in Dallas, 1S it not”?
13 A. That's correct.
14 MR. CLOUTMAN: Cive us the precinct.
15 A. Forty four sixty nine.
16 MR. CLOUTMAN: Thank you.
17 THE COURT: Okay. Thank you very much. I
18 appreciate it. Thank you for the flowers. See you 1n the
19 morning, but not until 8:30, You all be ready to proceed at
20 that time. Thank you.
21
ee
ro
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