Fifth Circuit Decision

    4 
Unie States Court of Appeals 

FIFTH CIRCUIT 

OFFICE OF THE CLERK 

GILBERT F. GANUCHEAU TEL. 504-589-6514 
CLERK A 600 CAMP STREET 

NEW ORLEANS, LA 70130 

September 28, 1990 

MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW 

No. 90-8014 - League of United Latin American Citizens, Council 
No. 4434 v. William P. Clements, et al. 

Enclosed is a copy of the Court's decision this day rendered in 
the above case. A judgment has this day been entered in 
accordance therewith pursuant to Rule 36 of the Federal Rules of 
Appellate Procedure. 

Rules 39, 40 and 41, FRAP and Local Rules 39 and 41 govern costs, 
petitions for rehearing and mandates. A petition for rehearing 
must be filed in the Clerk’s Office within fourteen (14) days 
from this date. Placing the petition in the mail on the 14th day 
will not suffice. 

  

  

  

  

The judgment entered provides that plaintiffs-appellees pay to 
defendants-appellants the costs on appeal. 

Very truly yours, 

GILBERT F. GANUCHEAU, Clerk 

By: Beir a nda 
Deputy Clerk 
  

Enclosure 

All Counsel of Record 

 



  

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

  

No. 90-8014 

  

LEAGUE OF UNITED LATIN AMERICAN 
CITIZENS COUNCIL NO. 4434, 

Plaintiffs-Appellees, 
and 

JESSE OLIVER, ET AL., 
Intervening 
Plaintiffs-Appellees, 

versus 
WILLIAM P. CLEMENTS, ETC., ET AL., 

Defendants, 
JIM MATTOX, ET AL., 

Defendants-Appellees, 
Appellants, 

versus 
JUDGE F. HAROLD ENTZ, ETC., 
JUDGE SHAROLYN WOOD, ETC., 

and GEORGE S. BAYOUD, JR., ETC., 

Defendants-Appellants, 
and 

TOM RICKHOFF, SUSAN D. REED, JOHN 
J. SPECIA, JR., SID L. HARLE, SHARON 
MACRAE and MICHAEL P. PEDAN, Bexar 

County, Texas State District Judges, 
Appellants. 

  

Appeal From the United States District Court 
for the Western District of Texas 

  

( Seotember 28, 1990) 
  

Before CLARK, Chief Judge, 
GEE, POLITZ, KING, JOHNSON, JOLLY, HIGGINBOTHAM, DAVIS, JONES, 
SMITH, DUHE, WIENER, and BARKSDALE, Circuit Judges.* 
  

Judges Williams and Garwood took no part in the Court’s 
deliberations or decision of this appeal. When this case was 
orally argued before and considered by the court, Judge Reavley 
was in regular active service. He participated in both the oral 
argument and the en banc conference. 

In United States v. American-Foreign Steamship Co., 363 U.S. 
685, 80 S.Ct. 1336, 4 L.Ed.2d 1491 (1960), the Supreme Court, 
interpreting 28 U.S.C. § 371(b), decided which senior judges are 
eligible to participate in an en banc court. Compare United 
States v. Cocke, 399 F.2d 433, 435 n.4 (5th Cir. 1968) (en banc). 
As Judge Reavley reads the American-Foreign Steamship Co. 

  

 



  

GEE, Circuit Judge: 

Today we must decide whether Congress, by amending Section 2 

of the Voting Rights Act in 1982 to add a "results" test for 

dilution of minority voting strength, meant to subject the selec- 

tion of state judges to the same test as that for representative 

political offices by incorporating language from the Supreme 

Court decision in White v. Regester.l For reasons to be given -- 

and for the cardinal reason that judges need not be elected at 

all -- we conclude that it did not. 

In summary, these are that Congress was at great pains to 

phrase the new Section 2 in such language as to make clear that 

its results test applies to voting in elections of representa- 
  

tives only; that as of the amendment’s time judicial offices had 

never been viewed by any court as representative ones; that char- 

acterizing the functions of the judicial office as representative 

ones is factually false -- public opinion being irrelevant to the 

judge’s role, and the judge's task being, as often as not, to 

disregard or even to defy that opinion, rather than to represent 

or carry it out; that, because of the highly intrusive nature of 

federal regulation of the means by which states select their own 

officials, legislation doing so should not be pushed beyond its 

clear language; and that, in view of these considerations, we 

should place such a construction on the 1982 enactment reluc- 

  

opinion, he considers himself ineligible now to participate in 
the decision of this case, and he has not therefore done so. 

i 412 U.S. 755 (1973) 

 



  

tantly and only if Congress has clearly mandated such a singular 

result. 

We have carefully weighed the text and provenance of the 

statutory language against the opposing factors urged upon us as 

interpretive guides. Having done so, we conclude that the lan- 

guage of the 1982 amendment is clear and that it extends the Con- 

gressional non-Constitutional "results" test for vote dilution 

claims no further than the legislative and executive branches, 

leaving the underlying, Constitutional "intent" test in place as 

to all three. Especially telling, we conclude, is the circum- 

stance that in borrowing language from the Court’s White opinion 

Congress focused upon its reference to electing "legislators," 

broadening it so far, but only so far, as to electing 

"representatives," a term inclusive of elective members of the 

executive branch as well as of the legislature but not -- as, 

say, "state officials" would have been -- of members of the judi- 

ciary. That Congress did exactly as we have described is as 

undeniable as it is inexplicable on any basis other than that of 

a legislative purpose to include all elected legislative and 

executive state officials but to exclude elected judges. 

Finally, and bearing in mind the well-settled principle of 

statutory construction that the enacting Legislator is presumed 

to have been aware of the judicial construction of existing law, 2 

we note that, as of the time of the addition of Section 2(b) and 

  

2 See, e.g., Shapiro v. United States, 335 U.S. 1, 16 (1948); 
  

United States v. PATCO, 653 F.2d 1134, 1138 (7th Cir.), cert. 
denied, 454 U.S. 1083 (1981). 

 



  

of the explicit results test to the Voting Rights Act, every fed- 

eral court which had considered the question had concluded that 

state judges were not "representatives" and did not fall within 

the definition of that term. Had Congress, then, meant to 

exclude votes in judicial elections from the ambit of its new 

results test, it could scarcely have done so more plainly than by 

adopting the term "representative" to describe that ambit. 

Facts and Procedural History 
  

The underlying facts of this appeal are carefully and cor- 

rectly set out in the panel opinion, 902 F.2d 293 (5th Cir. 

1990); we recapitulate them here no further than is necessary to 

an understanding of what we write today. 

Plaintiffs attacked the Texas laws providing for county- 

wide, at-large election of judges of the trial court of general 

jurisdiction, asserting that the imposition of a single-member 

system was necessary to prevent dilution of black and Hispanic 

voting strength. In a bench trial, the federal court rejected 

their constitutional arguments grounded in the Fourteenth and 

Fifteenth Amendments, finding a failure to prove the requisite 

discriminatory intent for relief under those provisions. The 

court determined, however, that the Texas law prodined an unin- 

tended dilution of minority voting strength, a circumstance suf- 

ficient to call for relief under the Voting Rights Act, as 

amended in 1982 to incorporate a "results" test dispensing with 

the necessity of proof of discriminatory intent. In consequence, 

and after pausing to allow for possible remedial action by the 

state, the court enjoined further use of the at-large system, 

 



  

confected and imposed a system of single-member elections, and 

directed that these be held last Spring. 

On appeal, we stayed the court’s order, expedited the 

appeal, held a panel hearing on April 30, and handed down an 

opinion on May 1ll. Four days later, pursuant to a majority vote 

of active judges, we ordered rehearing of the appeal en banc; and 

we now render our opinion. 

Analysis 
  

The Panel Opinion 
  

At the time of its decision, our panel was constrained by an 

earlier decision of the Circuit holding that Section 2 of the Act 

applied to elections held to fill positions on the Louisiana 

Supreme Court, a seven-member body. 3 Chisom v. Edwards, 839 F.2d 

1056 (5th Cir. 1988). Constraint was superfluous, however; for 

the panel embraced and agreed with the holding and reasoning of 

Chisom applying the Act to judicial elections. It went on, how- 

ever, to conclude that although in its view judges were indeed 

"representatives of the people," and although as their represen- 

tatives the judges’ elections were controlled by Section 2(b) of 

the Act, the elections of trial judges were not subject to voter- 

strength dilution concerns because their offices are single-mem- 

ber ones; and there is no such thing as a "share" of a single- 

member office. LULAC v. Clements, 902 F.2d 293, 305 (5th Cir. 

1990). See Butts v. City of New York, 779 F.2d 141 (2d Cir. 

  

3 It is the settled law of our Circuit that one panel of the 
Court does not overrule another. Ryals v. Estelle, 661 F.2d 904 
(5th Cir. 1981). 

 



  

1985), cert. denied, 478 U.S. 1021 (1986) (offices of mayor, 
  

council president, comptroller are single-member ones) and United 

States v. Dallas County, Ala., 850 F.2d 1433 (11th Cir. 1988) 

(county probate judge). A vigorous dissent by Judge Johnson, 

author of the panel opinion in Chisom, disputed the panel major- 

ity’s characterization of judges from multi-judge districts as 

holders of single-member offices. We need not resolve this dis- 

agreement within the panel, however, as we do not reach the 

issue. 

Statutory Background 
  

Originally enacted in 1965 as an anti-test, anti-device pro- 

vision to relieve blacks of state-law strictures imposed upon 

their Fifteenth Amendment voting rights, Section 2 of the Voting 

Rights Act was construed by the Supreme Court in Mobile v. 

Bolden, 446 U.S. 55 (1980), as adding nothing to the Fourteenth 

and Fifteenth Amendment claims there made and as requiring, for 

its enforcement, proof of racially-discriminatory intent. At the 

time of Bolden, Section 2 read: 

No voting qualification or prerequisite to 
voting, or standard, practice, or procedure 
shall be imposed or applied by any State or 
political subdivision to deny or abridge the 
right of any citizen of the United States to 
vote on account of race or color, or in con- 
travention of the guarantees set forth in 
section 1973b(f) (2) of this title. 

Congress reacted to Bolden by amending Section 2 to add to 

the statute a limited "results" test, to be applied and adminis- 

tered "as provided in subsection (b) of this section." As 

amended, Section 2 was cast in two subsections: 

 



  

(a) No voting qualification or prerequisite 
to voting or standard, practice, or pro- 
cedure shall be imposed or applied by 
any State or political subdivision in a 
manner which results in a denial or 
abridgement of the right of any citizen 
of the United States to vote on account 
of race or color, or in contravention of 
the guarantees set forth in section 
1973b(£f)(2) of this title, as provided 
in subsection (b) of this section. 

(b) A violation of subsection (a) of this 
section is established if, based on the 
totality of circumstances, it is shown 
that the political processes leading to 
nomination or election in the State or 
political subdivision are not equally 
open to participation by members of a 
class of citizens protected by subsec- 
tion (a) of this section in that its 
members have less opportunity than other 
members of the electorate to participate 
in the political process and to elect 
representatives of their choice. The 
extent to which members of a protected 
class have been elected to office in the 
State or political subdivision is one 
circumstance which may be considered: 
Provided, That nothing in this section 
establishes a right to have members of a 
protected class elected in numbers equal 
to their proportion in the population. 

Earlier, in the course of deciding White, a 1973 voting 

rights case invoking constitutional grounds, the Court had 

described the required standard of proof in felicitous terms: 

The plaintiffs’ burden is to produce evidence 
to support findings that the political pro- 
cesses leading to nomination and election 
were not equally open to participation by the 
group in question -- that its members had 
less opportunity than did other residents in 
the district to participate in the political 
processes and to elect legislators of their 
choice. 

  

  

  

  

412 U.S. at 766 (emphasis added). 

 



  

Casting about for appropriate language in which to couch its new 

subsection, and having inserted the reference to results in old 

Section 2, Congress settled upon the italicized portion of 

Justice White’s opinion quoted above, adopting it with only one 

significant alteration. 

New subsection (b), then, is patterned on the White court’s 

language and provides with great specificity how violations of 

the newly incorporated results test must be established: a viola- 

tion is shown on a demonstration, by the totality of the circum- 

stances, that state (or political subdivision) nomination and 

election processes for representatives of the people’s choice are 

not as open to minority voters as to others. The precise lan- 

guage of the section is significant; a violation is shown, it 

declares, if it is established that members of the protected 

classes 

have less opportunity than other members of 
the electorate to participate in the politi- 
cal process and to elect representatives of 
their choice. 

Both the broad and general opportunity to participate in the 

political process and the specific one to elect representatives 

are thus treated in the new section.® As for the former, pro- 

tecting it appears to involve all of the primal anti-test, anti- 

device concerns and prohibitions of original Section 2; and its 
  

4 As we note in text, the section goes on to specify that 
election success of class members is a circumstance to be consid- 
ered and to disavow specifically any intent to mandate propor- 
tionate representation by race. 

5 Not all aspects of that process pertain to elections, e.q., 
the celebrated New England town meeting. 

 



  

provisions may well extend to all elections whatever, as did 

they.6 These broader considerations center on the voter and on 

his freedom to engage fully and freely in the political process, 

untrammeled by such devices as literacy tests and poll-taxes. 

Where judges are selected by means of the ballot, these safe- 

guards may apply as in any other election, a matter not presented 

for decision today. The second consideration -- opportunity to 

elect representatives of one’s choice —- is also couched in the 

language borrowed from White v. Regester, 412 U.S. 755, 766 

(1973); and, as we have noted, the Congress was at some pains to 

adapt and broaden the Court’s phrases so as to convey its precise 

meaning. Before pursuing this aspect of our inquiry further, 

however, we turn aside to consider briefly the nature of the 

judicial office and two other closely related topics: judicial 

selection and the state of authority on judges’ status as repre- 

sentatives. 

The Judicial Office 
  

Senators and members of the House of Representatives hold 

clearly political offices. Today, both are directly elected by 

the people; and it is their function as representatives to syn- 

thesize the opinions of their constituents and reflect them in 

  

6 That scope is not at issue today, the trial court having 
found an absence of discriminatory intent; and we do not decide 
it. We point out, however, that there can be no doubt whatever 
that the provisions of the Fourteenth and Fifteenth Amendments, 
enforceable by means of Section 1983 actions, apply to judicial 
elections to forbid intentional discrimination in any aspect of 
them. City of Mobile v. Bolden, 446 U.S. 55 (1980); Voter Infor- 
mation Project v. City of Baton Rouge, 612 F.2d 208 (5th Cir. 
1980). 

 



  

the debate and deliberation of public issues.’ The executive 

branch of the government, headed by our highest officer elected 

at large in the nation, is also expected to bring the views and 

opinions which he offered the electorate in seeking the Presi- 

dency to bear on the job of running the federal machinery. 

By contrast, the judiciary serves no representative function 

whatever: the judge represents no one.8 As Professor Eugene 

  

James Madison, discussing the unique rela- 
tionship of the representative to his con- 
stituents, for example, referred to a rela- 
tionship of "intimate sympathy" between the 
elected and his electors, and argued that a 
legislator should feel an "immediate depen- 
dence" upon the will of his constituents. 
Frequent elections, according to Madison, are 
the only way to ensure this sort of relation- 
ship. Only by requiring legislators to 
return periodically to their constituents to 
seek their ongoing support and input, can the 
communication between the voters and their 
representatives that is essential to the 
maintenance of democratic government take 
place. Congress is a "popular" institution; 
it is, therefore inherently political. 

Hickok, Judicial Selection: The Political Roots of Advice and 
Consent in Judicial Selection: Merit, Ideology, and Politics 4 
(National Legal Center for the Public Interest 1950). 

  
  

8 That this is the case is strongly implied in the Constitu- 
tion, which provides for an appointive federal judiciary and was 
adopted by thirteen states, none of which had an elective one. 
Yet the Framers believed they were confecting a federal republic, 
and Article 4, Section 4, of the Constitution guarantees "to 
every State in this Union a Republican Form of Government. . . ." 
But if judges hold representative offices, or represent any con- 
stituency, appointing them is scarcely consistent with a republi- 
can system, defined by the Third Edition of Webster's Unabridged 
as "[A] government in which supreme power resides in a body of 
citizens entitled to vote and is exercised by elected officers 
and representatives . . . ." ; 

10 

 



  

Hickok has recently observed, in terms upon which we cannot 

improve: 

The judiciary occupies a unique position in 
our system of separation of powers, and that 
is why the job of a judge differs in a funda- 
mental way from that of a legislator or exec- 
utive. The purpose of the judiciary is not 
to reflect public opinion in its delibera- 
tions or to satisfy public opinion with its 
decisions. Rather, it is to ensure that the 
ordinary laws do not run contrary to the more 
fundamental law of the Constitution, to re- 
solve disputes and controversies surrounding 
the law, and to resolve disputes among con- 
testing parties over the meaning of the law 
and the Constitution. If a member of 
congress serves to make the law and a presi- 
dent to enforce it, the judge serves to 
understand it and interpret it. In this pro- 
cess, it is quite possible for a judge to 
render a decision which is directly at odds 
with the majority sentiment of the citizens 
at any particular time. A judge might find, 
for example, a very popular law to be uncon- 
stitutional. Indeed, it can be argued that 
the quality most needed in a judge is the 
ability to withstand the pressures of public 
opinion in order to ensure the primacy of the 
rule of law over the fluctuating politics of 
the hour. 

Hickok, op. cit. supra n.7, at 5. 
  

Thus the scholar, and with one voice the case authority of 

the time agreed. In 1982, as of the time of Congress’s adoption 

of the Court’s language from White, at least fifteen published 

opinions by federal courts -- opinions which we list in the 

margin -- had held or observed that the judicial office is not a 

representative one, most often in the context of deciding whether 

the one-man, one-vote rubric applied to judicial elections.? Not 

one had held the contrary. 
  

9 Sagan v. Commonwealth of Pennsylvania, 542 F.Supp. 880 (W.D. 
Pa. 1982), appeal dismissed, 714 F.2d 124 {3rd Cir. 1983) 
  

11 

 



  

  

(cross filing permitted by candidates for judicial office, 
prohibited for legislative and executive candidates) 

Concerned Citizens of Southern Ohio, Inc. v. Pine Creek Con- 
servancy Dist., 473 F.Supp. 334 (S.D. Ohio 1977) 

The Ripon Society, Inc. v. National Republican Party, 
525 F.2d 567 (D.C. D.C. 1975), cert. denied, 424 U.S. 933, 
47 L.Ed.2d 341 (1976) 

  

Fahey v. Darigan, 405 F.Supp. 1386 (D.C.R.I. 1975) 

Gilday v. Board of Elections of Hamilton County, Ohio, 472 
F.2d 214 (6th Cir. 1972) 

Wells v. Edwards, 347 F.Supp. 453 (M.D. La. 1972), aff'd 
mem., 409 U.S. 1095, 34 L.Ed.2d 679 (1973) 

  

Buchanan v. Gilligan, 349 F.Supp. 569 (N.D. Ohio 1972) 

Holshouser v. Scott, 335 F.Supp. 928 (M.D.N.C. 1971), aff'd 
mem., 409 U.S. 807, 34 L.Ed.2d 68 (1972) 

  

Sullivan v. Alabama State Bar, 295 F.Supp. 1216 (M.D. Ala.), 
aff'd per curiam, 394 U.S. 812, 22 L.Ed.2d 749 (1969) 
(involving Board of Commissioners of Alabama State Bar) 
  

Irish v. Democratic-Farmer-Labor Party of Minnesota, 287 
F.Supp. 794 (D.C. Minn.), aff'd, 399 F.2d 119 (8th Cir. 
1968) 

Buchanan v. Rhodes, 249 F.Supp. 860 (N.D. Ohio 1966), appeal 
dismissed, 385 U.S. 3, 17 L.Ed.2d 3 (1966), and vacated, 400 
F.2d 882 (6th Cir. 1968), cert. denied, 393 U.S. 839, 21 
L.Ed.2d 110 (1968) 

  

  

N.Y. State Assn. of Trial Lawyers v. Rockefeller, 267 
F.Supp. 148 (S.D.N.Y. 1967) 

Kail v. Rockefeller, 275 F.Supp. 937 (E.D.N.Y. 1967) 

Romiti v. Kerner, 256 F.Supp. 35 (N.D. Ill. 1966) 

Stokes v. Fortson, 234 F.Supp. 575 (N.D. Ga. 1964) 

Since 1982 a few courts have held that the use of the term 
"representatives" in Section 2 does not necessarily exclude 
judges. See Southern Christian Leadership Conference of Alabama 
v. Siegelman, 714 F.Supp. 511 (M.D. Ala. 1989); Clark v. Edwards, 
725 F.Supp. 285 (M.D. La. 1988); Mallory v. Eyrich, 839 F.2d 275 
(6th Cir. 1988); Martin v. Allain, 658 F.Supp. 1183 (S.D. Miss. 
1987). (All recognizing that the "one-man, one-vote" principle 
does not apply to judicial elections and that, unlike legisla- 

12 

 



  

Typical of these is the opinion in Wells v. Edwards, a deci- 

sion by a three-judge district court from our own circuit which 

was affirmed on appeal by the Supreme Court.l0 There, after 

reviewing various authorities, the district court expressed the 

entire rationale of its view as follows: 

"Judges do not represent people, they 
serve people." Thus, the rationale behind 
the one-man, one-vote principle, which 
evolved out of efforts to preserve a truly 
representative form of government, is simply 
not relevant to the makeup of the judiciary. 

"The State judiciary, unlike the legislature, 
is not the organ responsible for achieving 
representative government." 

347 F.Supp., at 455-56 (quoting from Buchanan v. Rhodes, 249 

F.Supp. 860 and New York State Association of Trial Lawyers v. 

Rockefeller, 267 F.Supp. 148). It is impossible, given the sin- 

gle point at issue and the simple reasoning stated, to believe 

that the majority of the Supreme Court, in affirming Wells, did 

not concur in that reasoning. If there were doubt, however, it 

would be laid to rest by the terms of the dissent, which attacks 

the district court opinion in stern, egalitarian terms for hav- 

ing, like other opinions cited by it, held "that the one-person, 

one-vote principle does not apply to the judiciary." 409 U.S. 

1095, 1096 n.2. Nor is it likely, we think, that the Supreme 

  

tors, judges do not "represent" those who elect them, but, never- 
theless, refusing to apply its established meaning to Congress’ 
use of the term "representatives" in Section 2 of the Voting 
Rights Act). 

10 347 F.Supp. 453 (M.D. La. 1972), aff'd mem., 409 U.S. 1095 
(1973) (Justice White, joined by Justices Douglas and Marshall, 
dissenting). 

  

13 

 



  

Court would hold, as it necessarily did in affirming Wells v. 

Edwards, that although for purposes of the Equal Protection 

Clause of the Fourteenth Amendment judges "do not represent peo- 

ple," all the same, for purposes of Section 2(b) of the Voting 

Rights Act, judges are “representatives of [the people's] 

choice." Both must be true, or neither one.ll 

Wells is not only instructive as to the meaning of 

"representatives" and thus as to the scope of Section 2, it is 

dispositive of the precise issue of the scope of Section 2's 

applicability raised in this case. The Wells holding -- that the 

one-person, one-vote rule does not apply to the judiciary -- 

leads inexorably to the conclusion that judicial elections cannot 

be attacked along lines that their processes result in uninten- 

tional dilution of the voting strength of minority members. 

Absent the one-person, one-vote rule -- that the vote of each 

individual voter must be roughly equal in weight to the vote of 

every other individual voter, regardless of race, religion, age, 
  

11 It is interesting to note that the dissent from the panel 
opinion, in the very course of complaining of the majority's 
refusal to apply Section 2 to trial judges, candidly recognizes 
that judges, unlike legislative and executive officers, 
"represent" no one: 

When weighing a state’s claim that it has a 
compelling interest in retaining the existing 
at-large system, courts should keep in mind 
the common sense notion that the role of 
judges differs from that of legislative and 
executive officials. Since it is not the 
role of judges to "represent" their con- 
stituents an examination of the 
"responsiveness" of the elected official to 
minority concerns is clearly irrelevant. 

902 F.2d at 317 n.17. 

14 

 



  

sex, or even the truly subjective and uniquely individual choice 

of where to reside -- there is no requirement that any individ- 

ual’s vote weigh equally with that of anyone else. This being 

so, and no such right existing, we can fashion no remedy to 

redress the nonexistent wrong complained of here. 

The notion of individual vote dilution, first developed by 
  

the Supreme Court in Reynolds v. Sims, 377 U.S. 533 (1964), was 

the foundation for the concept of minority vote dilution to be 
  

later elaborated in Whitcomb v. Chavis, 403 U.S. 124 (1971)12, 

White v. Regester, supra, and Zimmer v. McKeithen, 485 F.2d 1297 

{5th Cir. 1973). Individual vote dilution was remedied by the 

Court through the concept of one-person, one-vote -- the guaran- 

tee of substantial equality among individual voters. With that 

guarantee in mind, remedial schemes to combat minority vote dilu- 

tion were devised on a case by case basis. 

Almost twenty years ago, we articulated the conceptual link 

between individual vote dilution and minority vote dilution, mak- 

ing clear the latter’s dependence on the former: 

Irherent in the concept of fair representa- 
tion are two propositions: first, that in 
apportionment schemes, one man’s vote should 
equal another man’s vote as nearly as practi- 
cable; and second, that assuming substantial 
equality, the scheme must not operate to min- 
imize or cancel out the voting strength of 
racial elements of the voting population. 

  

  

  

12 In Whitcomb v. Chavis the Supreme Court directly considered 
a racial dilution challenge and rejected the claim that the Indi- 
ana legislative reapportionment plan operated to minimize or can- 
cel out minority voting strength. The Court held that the mere 
fact that ghetto residents were not proportionately represented 
did not prove a constitutional violation unless they were denied 
equal access to the political process. 

  

15 

 



  

Zimmer, 485 F.2d at 1303 (emphasis added). 

For it is the assumption of substantial equality (achieved 

through the guarantee of one-person, one-vote) that underlies the 

concept of minority vote dilution. This assumption, the Court 

held in Wells, does not obtain in judicial elections; and without 

that assumption there exists no yardstick by which to measure 

either the "correct" magnitude of minority voting strength or the 

degree of minority vote dilution. Thus, on a conceptual level, 

and to paraphrase Justice Harlan, we are asked to undertake the 

ineffable task of equalizing that which we cannot measure. Whit- 

comb, 403 U.S. at 169 (Harlan, J., separate opinion). 

We are therefore unable to take the crucial step from indi- 

vidual vote dilution to minority vote dilution in this case, not 

only because the holding in Wells forbids us to assume the exis- 

tence of "substantial equality," but because it compels us to 

recognize that no such equality need exist in the arena of judi- 

cial elections. The bridge between the two concepts, fashioned 

  

by the Court in Reynolds v. Sims and applied there to state 

legislatures, is of limited length and, as the Court made clear 

by affirming Wells v. Edwards, does not extend to the judiciary. 
  

Finally, as the district court stated in Wells: 

The primary purpose of one-man, one-vote 
apportionment is to make sure that each offi- 
cial member of an elected body speaks for 
approximately the same number of con- 
stituents. 

Wells, 347 F.Supp. at 455. 

We reiterate that judges do not represent people and, thus, have 

no constituents. Judges speak the voice of the law. In doing so 

16 

 



  

they speak for and to the entire community, never for segments of 

it and still less for particular individuals. To describe the 

judge’s office merely as "not a representative one" is a gross 

understatement; in truth, it is rather the precise antithesis of 

such an office. Just insofar as a judge does represent anyone, 

he is not a judge but a partisan. 

New Subsection 2(b) 
  

So the land lay when Congress enacted Section 2(b) in 1982, 

choosing to replace the term "legislator" in the White phraseol- 

ogy with the term "representative" -- a term which is employed 

only at this spot and appears nowhere else in the entire Voting 

Rights Act. By the settled canon of construction, we must pre- 

sume that Congress was aware of the uniform construction which 

had been placed by the courts on the term that it selected, a 

construction by which the judicial office was not deemed a 

"representative" one. Goodyear Atomic Corp. v. Miller, 486 U.S. 

174 (1988); Sutton v. United States, 819 F.2d 1289 (5th Cir. 

1987). Against this background, then, the Congress deliberately 

picked a term of art for use in amending Section 2 that up to 

that time had been universally held, and which it knew had been 

universally held by every federal court that had considered it as 

of that date, neither to include judges nor to comprise judicial 

offices. In view of these circumstances, we find it all but 

impossible to avoid the conclusion that Congress intended to 

apply its newly imposed results test to elections for representa- 

tive, political offices but not to vote dilution claims in judi- 

cial contests, leaving the latter to be regulated and controlled 

17 

 



  

by state law, by the Constitution, or by other provisions of the 

Voting Rights Act.1l3 Given the mutual exclusiveness of the two 

terms, to suggest that Congress chose "representatives" with the 

intent of including judges is roughly on a par with suggesting 

that the term night may, in a given circumstance, properly be 

read to include day. 

We are further persuaded by the knowledge that in amending 

Section 2 Congress was well aware of the genesis of the concept 

of minority vote dilution. The legislative history makes clear 

that Congress knew that "[t]he principle that the right to vote 

is denied or abridged by dilution of voting strength derives from 

the one-person, one-vote reapportionment case of Reynolds v. 
  

Sims." S. Rep. No. 417, 97th Cong., 2d Sess., reprinted in 1982 
  

U.S. Code Cong. & Admin. News at 196. Given its awareness of the 

Wells v. Edwards holding -- that the one-person, one-vote rule 
  

does not apply to the judiciary -- we must conclude that 

  

13 Indeed, as the panel opinion correctly notes, many states of 
the Union over the course of their history have maintained an 
appointive judiciary, and some do so today. 902 F.2d, at 296. 
Given the fact, also noted there, that none of the original thir- 
teen states elected its judiciary, an appointive system must be 
viewed as consistent with the "Republican Form of Government" 
guaranteed the States by Article 4, Section 4, of the Constitu- 
tion. 

In view of this, and while it is certainly possible to imag- 
ine Congress’s taking the position that, while states need not 
elect judges, if they do so they must do so on exactly the same 
terms as they elect representatives, the view which it adopted 
seems at least equally cogent: that since the office of the judge 
is not to represent the popular will, and since judges are not 
expected to initiate significant departures in law or policy, the 
states need not be subjected in their selection or election to so 
severe and intrusive a provision as one applying a "results" test 
to claims of minority vote dilution. 

18 

 



  

Congress, aware of the combined effect of Reynolds and Wells, 
  

limited the scope of amended Section 2 so as to rule out the 

judicial branch, an area within which the issue of the viability 

of minority vote dilution claims had been well settled. 

Countervailing Arguments 
  

Thus we find on one side of the argument whether Section 

2(b)’'s results test for elections applies to judicial ones the 

Congress's carefully chosen term of art -- "representatives" -- 

deliberately selected by Congress and placed in the section 

itself, with a settled legal meaning excluding judges. On the 

other side are ranged contentions of a more attenuated and 

derivative nature, which we now consider briefly. 

First we are told that the definition of "voting," included 

in the original act as Section 14(c)(l) and now codified as 42 

U.S.C. 1973(1l)(c)(l), refers to "candidates for public or party 

office" and that, since judicial hopefuls are included within the 

generality of such a reference to candidates, the results test 

which applies to all others must be applied to them as well. The 

specific controls the general here, however, as in any other 

instance of statutory construction; and we see little force in 

the claim that an inference from a general term buried in a 

definitional section far from Section 2 should control the spe- 

cific and supervening language inserted by Congress in the sec- 

tion itself. Nor is there any necessary conflict between the two 

provisions: as we have noted, it is only the application of the 

results test portion of amended Section 2 to vote dilution claims 

in judicial elections that is at issue today. Other portions of 

19 

 



  

the section may well apply to such elections, as may the results 

test to claims other than those of vote dilution, along with the 

indubitably applicable Constitutional prohibitions against any 

intentional act of discrimination in any electoral aspect. 

The same answer also refutes the next argument: that 

because, as was held in Haith v. Martin, 618 F.Supp. 410 

(E.D.N.C. 1985), aff'd mem., 477 U.S. 901 (1986), Section 5 of   

the Act applies to state judicial elections, Section 2 must apply 

as well. As we have explained, portions of Section 2 may well 

apply -- except for the results test introduced in response to 

the holding in Bolden to govern vote dilution in the election of 

"representatives," which by its own terms does not. 

Next we are told, in yet another general argument similar to 

those we have just rejected, that we must apply the dilution 

results test to judicial elections because the 1982 amendments to 

Section 2 were intended to expand, rather than to restrict, the 

section’s coverage. Doubtless they were generally so intended; 

doubtless they did so; but the presence of a general intent to 

expand coverage requires neither an expansion at all points nor 

the maximum imaginable expansion at any and is not even necessar- 

ily at odds with a specific intent to restrict coverage at one or 

another of them. Section 2 was greatly expanded, expanded to add 

a results test to the intent test of the Fourteenth and Fifteenth 

Amendments -- expanded in most respects, but not in all. 

Finally, in a scatter of birdshot contentions, counsel point 

to the broad construction that the Attorney General has histori- 

cally accorded the Voting Rights Act, to the absence in the Act's 

20 

 



  

legislative history of any explicit statement that judicial 

elections are not covered, to the presence in that history of 

references to statistics on minority performance in various elec- 

tions (including judicial ones), and to a single reference to 

“judicial districts" in a cautionary parade of horribles to be 

found in a subcommittee report hostile to the proposed 1982 

amendments. None of these seems to us to weigh very heavily in 

the scales against the specific terminology of Section 2 

itself.14 In the words of Justice Frankfurter, writing for a 

unanimous court in Greenwood v. United States, it appears to us 

that “this is a case for applying the canon of construction of 

the wag who said, when the legislative history is doubtful, go to 

the statute." 350 U.S. 366, 374 (1955). 

It is, and we do so. 

Conclusion 
  

In no area should federal courts tread more cautiously than 

where it is contended that Congress has imposed incremental Fed- 

  

14 Thus, as Justice Scalia has very recently suggested, we 
"appl[y] to the text of the statute the standard tools of legal 
reasoning, instead of scouring the legislative history for some 

  

  

scrap that is on point . . . ." Begier v. United States, 
u.s. ' 7 110 L.Ed.2d 46, 63 (1990) (concurrence in judg- 
ment). 

And these small matters are indeed scourings. The panel 
opinion avers, 902 F.2d at 299, and we do not doubt, that the 
reference to "judicial districts" is the sole reference to the 
judiciary in all the legislative history of the 1982 amendments 
of the Act. It will be noted that even this reference is one to 
judicial districts, not to judicial candidates; and in our Cir- 
cuit many officials such as sheriffs, highway commissioners, dis- 
trict attorneys and clerks of court, who are "representatives" 

and not judges, are elected from judicial districts, e.g., Miss. 
Code Ann. (1972) 65-1-3. 

  

21 

 



  

eral power on the States; and the nearer to the core of tradi- 

tional state authority and concern we are asked to venture, the 

more warily we should tread. The point is elegantly made by the 

panel opinion in this very case: 

Few would quarrel with the assertion that 
Section 2(b) as interpreted has worked a fun- 
damental change in the Act, highly intrusive 
to the states. We have insisted in other 
contexts that Congress clearly state its 
intent to supplant traditional state preroga- 
tives. Judicial insistence upon clear state- 
ment is an important interpretative tool vin- 
dicating concern for separation of powers and 
federalism. See Atascadero State Hospital v. 
Scanlon, 473 U.S. 234, 105 S.Ct. 3142 (1985); 
Pennhurst State School and Hospital v. Hal- 
derman, 465 U.S. 89, 104 S.Ct. 900 (1984) 
(Pennhurst II). This insistence upon an 
"unequivocal expression of congressional 
intent," Pennhurst II, 465 U.S. at 99, 104 
S.Ct. at 907, is based upon the fundamental 
nature of the interests at stake. "The 
‘constitutionally mandated balance of power’ 
between the states and the Federal Government 
was adopted by the Framers to ensure the pro- 
tection of ‘our fundamental liberties.’"” 
Atascadero, 105 S.Ct. at 3147 (quoting Garcia 
v. San Antonio Metropolitan Transport Author- 
ity, 469 U.S..528,°572, 105 S.Ct. 1005, 1028 
(1985) (Powell, J., dissenting)). 

  

  

  

LULAC, 902 F.2d at 301. 

It is hard to envision any area lying closer to the core of 

state concerns than the process by which it selects its own offi- 

cers and functionaries. Any federal trenching here strikes at 

federalism’s jugular; and such a radical federal trenching as is 

contended for today should therefore demand a very clear state- 

ment indeed. Instead, as regards the issue in this case, our 

investigation reveals an all but total absence of relevant leg- 

islative history and a statutory text that unambiguously excludes 

22 

 



  

elections of non-representative state officers from Section 2's 

highly intrusive results test. If this was not the intended 

effect of Congress's substitution of representatives for legisla- 
  

  

tors in Justice White's language, no other suggests itself; and 

we must reject any notion that Congress went to all the trouble 

of selecting that language and carefully modifying it, just so 

far and no further, randomly and with nothing particular in 

mind.16 It is never proper for us to extend a statute’s force by 

construction into areas where Congress has not seen fit or has 

been unable to agree to go, and never less proper than in such 

supremely sensitive territory as this. 

Judicial offices and judicial selection processes are sui 

generis in our nation’s political system; they determine the 

referees in our majoritarian political game. These offices are 

not "representative" ones, and their occupants are not represen- 

tatives. Indeed, the state processes for filling them need not 

even be elective, as those for all representative offices presum- 

ably must be. See U.S. Const., Art. 4, Sec. 4. In 1982, when 
  

16 Both the dissent and, more obliquely, the special 
concurrence take our writing to task as resting on the narrow 
foundation of one word. In main, this is true; for the 
substitution of the term "representative" is all but the sole 
clue to be found -- in either the statutory text or the 
legislative history -- to guide the interpreter in unraveling the 
legislative intent behind this enigmatic statute. Dim or no, it 
is the only light available to guide our footsteps, and we have 
followed it as best we could. 

By contrast, our specially concurring and dissenting 
brethren proceed by ignoring the sole guide available, first 
declaring that the only light that shines is of no help, then 
proceeding in total darkness and, so proceeding, to declare that 
the statute means, not what it says, but what they think Congress 
should have said -- pausing briefly in passing to accuse our 
majority of doing what they in fact have done themselves. 

23 

 



  

Congress determined to expand Section 2 of the Act to incorporate 

a results test for vote dilution, it stopped short of imposing 

such a test for judicial offices on the States by limiting it to 

their election of "representatives." Should Congress seek to 

install such a test for judicial elections, it must say so 

plainly. Instead, it has thus far plainly said the contrary. 

Chisom v. Edwards, 839 F.2d 1056 (5th Cir. 1988) is overruled. 

REVERSED. 

24 

 



   



  

CLARK, Chief Judge, concurring specially : 

This brief soliloquy is necessarily said, in my respectful 

view, because every other opinion goes farther than the Voting 

Rights Act intends. My brothers Gee and Higginbotham are at odds 

about the way the court should take to reach the same result. 

While their disagreement centers on the representative nature of 

the judicial office, the essence of their analyses of the impact 

of racial vote dilution in this judicial election process based 

on the nature of the office is similar--so similar that, if their 

opinions were expressly limited to the facts of the present case, 

I agree with both. 

There is no disagreement that Section 2 of the Voting Rights 

Act, before its amendment, forbade any practice or procedure that 

abridged the right to vote because of race or color. All also 

agree that the legislative intent of the amendment was only to 

broaden the test for vote dilution from "intent" to "result." 

The elements of Judge Gee's analysis are that, since section 

2(b) defines vote dilution in terms of representatives, no vote 

dilution claim can be made in any election of a judicial officer 

because a judge can never be a representative--a conclusion he 

finds confirmed by the Supreme Court’s refusal in Wells v. 

Edwards to apply one-man, one-vote standards to judicial election 

districts. 

Judge Higginbotham rejects this analysis. He would base 

reversal on the premise that none of several elected trial judges 

who all function singularly in their work can be subject to the 

 



  

single-member redistricting claim made here. My concern is that 

the court’s opinion, as now written, puts vote dilution attacks 

on (1) judicial elections which cannot be resolved by examining 

the nature of the office, and (2) "issue" elections (such as 

referenda on constitutional amendments and bond issue elections) 

beyond the reach of amended section 2. 

Judge Gee starts with the observation that the words of 

section 2 expressly limit vote dilution to elections of 

representatives. I can readily agree section 2 does not apply to 

the elections challenged here. It involves only the election of 

persons and voter impact turns entirely on the nature of the 

judicial office. This brings section 2(b) into play. The 

inherent nature of the judicial function and, indeed, the 

constitutional limits of due process require that every judge be 

impartial between litigants and neutral as to claims presented. 

In the discharge of official duties, no judge can ever 

"represent" the electors in the jurisdiction served by the court. 

A vote for a judge differs from a vote for other types of 

officers. Whether the choice be for councilman, sheriff or 

governor, and whether it be based on whim or party or nonpartisan 

analysis of the individual candidate, votes for these types of 

officials are cast for those who will best express the wishes and 

views of their constituents. This cannot be so when a voter 

picks a judge. Legislators and executives are expected to 

represent. Voters must know judges cannot. The same principles 

control when a state provides for election rather than 

appointment of its judiciary. The choice seeks to assure the 

 



  

public that the judicial function will be kept accountable to the 

common sense of the electorate. It is expected that candidates 

who lack training or a reputation for honesty or sound intellect 

will not be elected. In like manner, those who are indolent, 

will not decide cases or decide erratically will not be re- 

elected. Overarching any considerations of voter motivation is 

the due process neutrality required in the conduct of the office. 

It does not permit the judge’s responsiveness to the electorate’s 

concept of common sense to become representation of the 

electorate. The State of Texas has a strong interest, and, 

indeed, a fundamental right to choose to have these judges 

elected in the manner provided here. Its choice does not violate 

amended section 2. 

The difficulty I have with Judge Gee’s analysis is that it 

has no limit. There are many types of elections which involve 

issues, not candidates, which surely ought to be subject to the 

vote dilution stricture of section 2 despite the absence of any 

question of representation. But merely noting the applicability 

to "issue" elections would not adequately define the reach of 

section 2. It is imperative, in my view, that a bright circle be 

drawn around judicial elections as well. Judge Gee's reasoning 

would expressly deny section 2(a) coverage to judicial elections 

in situations beyond today’s facts, as he makes clear by 

overruling Chisom v. Edwards. Section 2(a) is an integral part 

of a remedial statute. It deserves to be interpreted so as to 

prevent racial vote abridgment even when it occurs in a judicial 

election. The phrase "as provided in subsection (b) of this 

3 

 



  

section” which appears at the end of subsection (a) should be 

read as giving an example of proscribed vote dilution. It does 

not provide that section 2(b) establishes the only way the 

section can be violated. 

It is clear to me that when a state continues to apply a 

voting procedure in a manner which now results in an abridgement 

of the right of a citizen to vote on account of race, that 

procedure is still condemned by amended section 2(a), just as it 

was before the amendment. 

Nothing we say today should be taken as passing on a claim 

that a judicial election process in which judges are elected by 

fewer than all of the eligible voters within the jurisdictional 

area of the court on which the judge will serve has become a 

violation of section 2. Such elections involve districting of 

voters in a manner entirely unrelated to the representative 

nature of the judge’s office. 

Gingles tells me that whether the political process chosen 

by Texas for selecting its judges is equally open depends upon 

evaluation of past and present reality under a functional view of 

the process. There is nothing wrong with the state’s choice to 

elect any number of a county’s district judges county-wide. 

However, if the state has chosen to divide a single judicial 

jurisdiction into separate groups of electors, that choice could, 

with changes in demographics or other conditions come to raise 

real issues of racial gerrymander, gross diminution of voting 

strength, candidate slating ability or other violations of equal 

protection which have nothing to do with the due process concerns 

 



  

which control the execution of judicial duties, or with the 

manner in which the office of judge is carried out. Of course, I 

agree that Wells v. Edwards establishes that approximate numeric 

equality of voters between judicial districts is not required. 

However, we need not and should not decide now that judicial 

subdistricts which grow to have gross numeric or racial 

disparities in their make-up will always be free of possible 

section 2 problems. For this reason, I respectfully, but 

expressly, disagree with the majority’s flat-out overruling of 

Chisom v. Edwards. 

We are not confronted here with any claim of vote dilution 

resulting from long-established subdistricts alleged to have 

become racially invidious on a basis of intra-jurisdictional 

voter distribution. This was the claim that was before this 

court in Chisom. The holding in Chisom reversed a dismissal on 

the pleadings. I agree that such a reversal was proper, even 

though I cannot agree with all said in Part I of Judge 

Higginbotham’s concurrence or Judge Johnson’s dissent because 

both deny vitality to section 2(b). Since we are writing en 

banc, I am free to disagree with the reason given for the result 

in Chisom--that section 2 applies to all judicial elections. I 

am of the opinion that it is equally wrong to say that section 2 

covers all judicial elections as it is to say it covers none. 

However, if today’s facts were the same as Chisom’s, I would hold 

a claim that judicial subdistricts, once having no invidious 

purpose, but alleged, over time, to have come to abridge section 

 



  

2 rights, must be factually developed and cannot be dismissed on 

pleadings alone. 

If the issue were reached in today’s case, I would also 

agree with Judge Higginbotham that the presence of multiple 

judicial posts on the ballots of plaintiffs here gives them no 

section 2 right to have single-judge subdistricts drawn. I would 

do so because I am not required to agree that the principle 

applies on any broader scale than the facts before us present. 

His function-of-the-office analysis is, to me, identical in 

concept to the majority view. The caveat I think must be added 

to both is that only when the area of jurisdiction of each of 

several jurist to be elected is coextensive with the area of 

residence of those that elect them, is each vote for a judge 

bound to be equal to every other vote that may be cast. 

I would not agree with Judge Higginbotham that the single- 

judge, trial-court function of the judicial office is a critical 

factor. The analysis ought to be the same regardless of how the 

judge judges. When an appellate judge--who must function with 

other appellate judges to accomplish the judicial task--serves 

the same jurisdictional area as that which defines the 

electorate, section 2 does not allow a single member 

subdistricting remedy to be applied. This is so because no 

intradistrict or intrastate violation of section 2 is possible. 

The collegial nature of the appellate office in no way alters the 

compulsion for due process neutrality. When this neutrality is 

coupled with congruence of jurisdiction and electorate, they 

jointly assure equality in voting practices and procedures, 

 



  

negate representation and eliminate the possibility of vote 

dilution. 

However, as with my partial agreement with Judge Gee's 

analysis, agreement with Judge Higginbotham should not be taken 

as controlling fact situations not before us here. The single- 

judge, trial-court functional analysis proceeds solely on what 

the judge does and the way he does it. These analyses change no 

basic principles. If the coincidence of voter residence and 

jurisdiction does not exist, the same possible vote dilution 

violations mentioned above, which have nothing to do with the 

function of the office being voted on, could occur. The 

importance of the policy embodied in section 2 compels me to say 

that these limits must be placed on what we write so that future 

courts will not cut short the intended reach of section 2. In my 

view, the majority view should be limited to the facts before us. 

With the reservations expressed, I respectfully concur in 

reversing the judgment appealed from. 

 



   



HIGGINBOTHAM, Circuit Judge, with whom, POLITZ, KING and DAVIS, 

join, concurring in the judgment-* JOHNSON, Circuit Judge, 

concurs in Part 1. WIENER, Circuit Judge, concurs in Part 2. 

This is a voting rights suit challenging the election of 

district judges on a county-wide basis in Texas. The suit was 

filed in a United States District Court by the League of United 

Latin American Citizens against the Attorney General of Texas, 

the Secretary of State, and other state officials, seeking a 

declaratory judgment that the at-large election of state district 

judges in nine targeted counties is illegal under Section 2 of 

the Voting Rights Act, 42 U.S.C. § 1973, and violative of the 

fourteenth and fifteenth amendments of the United States 

Constitution. Plaintiffs requested the district court to enjoin 

further elections and to impose a districting scheme that 

included single-member districts. Texas has 254 counties, but 

the suit attacked only Harris, Dallas, Tarrant, Bexar, Travis, 

Jefferson, Lubbock, Ector, and Midland Counties.? These nine 

counties have more than one district judge elected county-wide, 
  

* When this case was orally argued before and considered by 
the court, Judge Reavley was in active service. He participated 
in both the oral argument and the en banc conference. He took 
senior status, however, on August 1, 1990. Based on his 
understanding of the Supreme Court decision in United States v. 
American-Foreign Steamship Corp., 363 U.S. 685, 80 S.Ct. 1336, 4 
L.Ed.2d 1490 (1960), he considers himself ineligible to 
participate in the decision of this case, but he adheres to the 
views in this opinion. See Sawyer v. Butler, 881 F.2d 1273 (5th 
Cir. 1989) and Court: Policy 21.C. 

2 Ten counties actually are targeted. The challenged 72nd 
Judicial District encompasses two counties, Lubbock and Crosby. 
We will refer to the nine targeted Judicial Districts as nine 
counties.  



and elect 172 of the state’s 390 district judges. As we will 

explain, the suit targets Texas law requiring election of a state 

district judge from a district no smaller than the county, the 

geographical area of its jurisdiction. 

After a bench trial, the district court found violations of 

the Voting Rights Act in each of the nine counties, but rejected 

the constitutional arguments, finding that plaintiffs had failed 

to prove that the electoral system was instituted or maintained 

with discriminatory intent. On January 2, 1990, the district 

court enjoined defendants from: 

Calling, holding, supervising and certifying elections 
for state district judges in Harris, Dallas, Tarrant, 
Bexar, Travis, Jefferson, Lubbock, Hector and Midland 
Counties under the current at-large system with an 
order for interim relief. 

The district court divided the nine counties into electoral sub- 

districts, tracing the districts of state representatives and the 

precinct lines of County Commissioners or Justices of the Peace. 

The district court’s order affected 115 of the 172 district 

courts. The district court also ordered a non-partisan election 

for May 5, 1990, with any run-off to be held on June 2, 1990. We 

stayed the district court’s order pending this appeal. 

Defendants first argue that the Voting Rights Act as amended 

in 1982 has no application to the election of judges. This 

argument rests on the assertion that the use by Congress of the 

word "representatives" in Section 2(b), added by amendment in 

1982 and popularly known as the Dole compromise, unambiguously 

excluded elected judges because elected judges are not 

representatives. This argument in its broadest form--Section 2  



of the Act has no application to any judicial elections--was 

rejected by this court in Chisom v. Edwards, 839 F.2d 1056 (5th 

Cir.), cert. denied sub nom. Roemer v. Chisom, 109 S.Ct. 390 

(1988). The panel opinion was nan inoue. The petition for 

rehearing en banc was denied without a single member of the court 

requesting a poll. Relatedly, but with less sweep, defendants 

argue that Section 2(b) has no application to state district 

judges because such judges do their judging singly and not as 

part of a collegial body. Finally, defendants attack the 

findings below as well as the ordered remedy. In addition to 

quarrels with the sufficiency of proof that the votes of 

minorities were diluted, defendants argue that the findings are 

flawed by the erroneous legal conclusion that the contribution of 

partisan voting to election outcomes is not relevant. 

We are unpersuaded that Chisom’s decision regarding the 

election of appellate judges was incorrect, but are persuaded 

that Section 2(b) will not support this attack upon the 

countywide election of trial judges. Because we would decide the 

case on this ground we do not reach defendants’ other 

contentions. 

I. 

A. 

We are pointed to no evidence of how the Framers’ viewed 

elected judges. This is not surprising; judges were not elected 

at the time the Constitution was written and ratified. The 

thirteen original states employed various methods of judicial 

selection, seven using appointment by the legislature, five by  



governor and council, and one by governor and legislature. See 

Winters, Selection of Judges--an Historical Introduction, 44 Tex. 

L. Rev. 1081, 1082 (1966). Electing judges was a Jacksonian 

reform aimed at making judicial selection more democratic: 

Popular sovereignty and popular control of public 
affairs through the elective system were hallmarks of 
the Jacksonian era, and, not surprisingly, the movement 
for popular election of judges dates from this period. 
Dissatisfaction with the judiciary was widespread among 
Jacksonians. It arose from several factors including a 
general disaffection with the legal profession, abuses 
in the judicial appointment systems, and a feeling, 
carried over from the Jeffersonian period, that the 
courts were basically undemocratic. Consequently, the 
abolition of tenure during good behavior and the 
adoption of the elective system were advocated as 
reform measures and were hailed as in accord with the 
egalitarian spirit of the times. 

Note, The Equal Population Principle: Does It Apply to Elected 

Judges?, 47 Notre Dame L. Rev. 316, 317 (1971). 

The first judicial elections took place as early as 1812 for 

Georgia lower court judges, Ga. Const. art. III, § 4 (1812), and 

in 1832 Mississippi adopted a completely elective judiciary. 

Miss. Const. art. IV, §§ 2, 11, 16 (1832). When it joined the 

Union, Texas ironically became the first new state to adopt the 

federal method of selecting judges, by executive appointment with 

confirmation by the state senate. Id.; Tex. Const. art. 1V., 

Section 5 (1845). The wholesale change from appointed to elected 

judges can be marked by New York's adoption of judicial elections 

in 1846. ‘N.Y. Const. art, VI, §8 2, 4, 12, 14 (1846). All new 

states entering the union after that date, until the entrance of 

Alaska in 1958, used elections as their method of judicial 

selection, and Georgia, Maryland, Virginia, and Pennsylvania  



  

switched from appointment to election. Winters, Selection of 

Judges, 44 Tex. L. Rev. at 1082. In short, it is fair to 

conclude that electing judges was viewed as being more democratic 

and as a way of ensuring that judges remained sensitive to the 

concerns of the people. 

It is vigorously argued that Section 2 of the Voting Rights 

Act has no application to judicial elections because judges are 

not representatives. The argument in its strongest form is that 

the word "representatives," found in Section 2(b), unambiguously 

excludes judges because judges have no constituents. The 

argument continues that there is no occasion for exploring 

legislative history because the inquiry ends with the plain words 

of the statute. While drawing the language of Section 2(b) from 

White v. Regester, 412 U.S. 755 (1973) Congress substituted the 

word "representatives" for "legislators," at the least to insure 

it reached elected executive officials. This much defendants do 

not deny. Rather, they argue that although "representatives" may 

encompass executive officials, Congress intended that the term 

not encompass judges. 

To be unambiguously inapplicable to judges, the word 

"representatives" must be certain of only one relevant meaning 

and that meaning must exclude judges. Defendants must concede, 

however, that at one level of generality judges are 

representatives. The history of electing judges and the 

political impulses behind that choice are powerful evidence of 

considered decisions to keep judges sensitive to the concerns of 

the people and responsive to their changing will. This reality 

 



belies the bold assertion that judges are in no sense 

representatives. The assertion that judges are not 

representatives actually masks a concern that judges should not 

be representatives. This is a choice left to the states, and 

Texas has chosen to elect judges convinced that direct 

accountability insures that judges represent the people in their 

judicial tasks. 

Judges are oath bound to obey the law and to make decisions 

in an impartial manner but that does not mean that they are in no 

practical sense representatives of the people. Yet, executive 

officials, who are considered representatives, are bound by the 

same oath. While judges are indeed far removed from the 

logrolling give and take of the legislative and even executive 

processes, the effort to assure "sensitivity" and 

"accountability" through elections is no more than an insistence 

that the judges represent the people in their task of deciding 

cases and expounding the law. State judges, wearing their common 

law hats, face decisions such as whether to adopt a comparative 

fault standard, and in doing so represent the people in a very 

real sense. At least at this level of generality judges are 

indisputably representatives of voters. Saying so in no way 

steps on the equally indisputable difference between judges and 

other representatives--that judges do not represent a specific 

constituency. 

It is true that judges do not carry the views of a certain 

group of people into a larger governmental body, attempting to  



  

sway that body toward decisions favorable to their constituency.3 

That is not the necessary role of a representative. We extoll 

the virtues of the jury in criminal cases--the jury is said to be 

the representatives of the people. Both judicial opinions and   

academic writings describe members of juries as representatives. 

See Spaziano v. Florida, 104 S.Ct. 3154, 3176 (1984); Gillers, 

Deciding Who Dies, 129 U. Pa. L. Rev. 1, 63-65 (1980); H. Kalven 

& H. Zeisel, The American Jury 436 (1966). The examples can be 

multiplied, but the point is plain. The conclusion that the word 

“representative” has the singular meaning of legislator is 

nothing more than an effort to substitute judicial will for that 

of Congress. It is an undisquised effort by judges to claim for 

judges an exemption from the Voting Rights Act. This exercise of 

raw judicial power claims for federal courts, power belonging to 

Congress and to the states. Texas has decided to elect its 

judges and Congress has decided to protect the rights of voters 

in those elections. 

In sum, we cannot determine whether Section 2(b) of the 

Voting Rights Act applies to judicial elections by looking only 

to the word "representative." Rather, we must look to the 

context in which the word is used and legislative history, 

cautious as we must be over that enterprise. Exploration of this 

context requires that we determine whether in using the word 

representative in the 1982 amendments, Congress intended to 

withdraw the Act’s existing coverage of judicial elections. That 

  

3 The same may be said for county surveyors, treasurers, court 
clerks and a myriad of office holders. 

 



is, the freight the majority’s use of representative must bear 

becomes enormous if, before the 1982 amendments, the Voting 

Rights Act reached judicial elections. 

We therefore turn first to whether the Voting Rights Act 

covered judicial elections before 1982. We consider the 1982 

amendments to the Act and review the legislative history of the 

amendments. We then turn to the question whether Congress was 

required to mention specifically the election of judges in the 

statute. The resolution of this question is informed by 

application of settled principles of federalism; we determine 

that the election of judges has no claim to the protections of 

federalism not shared by other institutions of state government. 

We next reject the argument that because the one-person, one-vote 

principle is inapplicable to the judiciary, racial vote-dilution 

claims under Section 2 must be inapplicable as well. Finally, 

we look at the interplay of Sections 2 and 5 to determine whether 

differences between the two sections preclude the application of 

Section 2 to judicial elections despite Section 5's coverage of 

those same elections, and conclude that they do not. 

  

4 It is argued that, whether or not the unamended Section 2 
reached judicial elections is irrelevant, because Section 2(b) 
represents not just an amendment to but a fundamental shift in 
the operation of the Act. As such, the amended Section 2 should 
not be read to reach judicial elections unless Congress 
explicitly so provided. See Atascadero State Hospital v. 
Scanlon, 473 U.S. 234, 105 S.Ct. 3142 (1985). We refute this 
argument in the text below.  



  

B. 

Section 2, before the 1982 amendments, provided as follows: 

$ 1973. Denial or abridgement of right to vote on 
account of race or color through voting 
qualifications or prerequisites. 

No voting qualification or prerequisite to voting, 
or standard, practice, or procedure shall be imposed or 
applied by any State or political subdivision to deny 
or abridge the right of any citizen of the United 
States to vote on account of race or color, or in 
contravention of the guarantees set forth in section 
1973b(£)(2) of this title. 

42 U.8.C. § 1873 (1975). 

Section 2 by its express terms reached state judicial 

elections. "Vote" or "voting" was defined as including "all 

action necessary to make a vote effective in any primary, special 

or general election . . . with respect to candidates for public 

or party office and propositions for which votes are received in 

an election." 42 U.S.C. § 19731(c)(1l). There was no mention of 

judges or the judiciary. There also was no mention of any other 

specific office. Judges are "candidates for public or party 

office" elected in a "primary, special, or general election." 

Congress intended to reach all types of elections, rather than to 

pick and choose. Indeed, even votes on propositions are within 

the purview of the Act. Section ' 14(c)(1), 42 u.s.C. 

$ 19731(c)(1). 

Defendants argue that the Act is silent as to judges, so it 

must be construed as not including judicial elections. They 

argue that, while judges in Texas are "candidates for public 

office," it is uncertain whether Congress, by providing a broad 

definition of "vote," also intended to create a private remedial 

 



cause of action of similar scope in Section 2. Congress 

expressly defined the term "vote" or "voting," however, and 

nothing suggests that Congress did not intend that definition to 

apply throughout the Act, including Section 2. 

Congress intended that its 1965 Act provide protection 

coextensive with the Constitution. Justice Stewart reiterated 

this in Mobile v. Bolden: 

[I]t is apparent that the language of section 2 no more 
than elaborates upon that of the Fifteenth Amendment, 
and the sparse legislative history of section 2 makes 
clear that it was intended to have an effect no 
different from that of the Fifteenth Amendment itself 

446 U.S. 55, 60-61 (1980). We reject the implicit suggestion 

that the protections of the Fifteenth Amendment do not extend to 

minorities whose right to vote in judicial elections is abridged. 

The Fifteenth Amendment applies to all elections, and Congress 

intended the Voting Rights Act of 1965 to apply to all elections. 

By its terms the 1965 Act included judicial elections. 

Under defendants’ argument then the word representative in 

Section 2(b) must bear the burden of being the sole means by 

which Congress in the 1982 amendments exempted judicial elections 

from the Act’s coverage. The record is barren of any hint that 

Congress's effort in 1982 to expand the Voting Rights Act carried 

a sub rosa withdrawal of coverage for state judicial elections. 

C. 

Congress amended Section 2 in 1982 in partial response to 

the Supreme Court's decision in City of Mobile v. Bolden, 446 

U.S. 55 (1980). Thornburgh v. Gingles, 478 U.S. 30, 106 S.Ct.  



2752, 2758 (1886). Bolden held that in order to establish a 

violation under Section 2 of the Act a plaintiff must prove 

purposeful racial discrimination. Bolden, 446 U.S. at 66. 

Congress incorporated a "results test" into Section 2(a) to 

diminish the burden of proof necessary to prove a violation. 

Congress also added Section 2(b), which codified the legal 

standards enunciated in White v. Regester, 412 U.S. 755 (1973).5 

As amended in 1982, Section 2 now provides: 

(a) No voting qualification or prerequisite to 
voting or standard, practice, or procedure shall be 
imposed or applied by any State or political 
subdivision in a manner which results in a denial or 
abridgement of the right of any citizen of the United 
States to vote on account of race or color, or in 
contravention of the guarantees set forth in section 
1973b(f) (2) of this title, as provided in subsection 
(b) of this section. 

(b) A violation of subsection (a) of this section 
is established if, based on the totality of 
circumstances, it is shown that the political processes 
leading to nomination or election in the State or 
political subdivision are not equally open to 
participation by members of a class of citizens 
protected by subsection (a) of this section in that its 
members have less opportunity than other members of the 
electorate to participate in the political process and 
to elect representatives of their choice. The extent 
to which members of a protected class have been elected 
to office in the State or political subdivision is one 
circumstance which may be considered: Provided, that 
  

5 In White v. Regester the Supreme Court interpreted the 
requirements of the Voting Rights Act and the U.S. Constitution 
with respect to claims of vote dilution: 

The plaintiffs’ burden is to produce evidence to 
support findings that the political processes leading 
to nomination and election were not equally open to 
participation by the group in question--that its 
members had less opportunity than did other residents 
in the district to participate in the political 
processes and to elect legislators of their choice. 

412 U.S. at 7686.  



nothing in this section establishes a right to have 
members of a protected class elected in numbers equal 
to their proportion in the population. 

42 U.S.C. § 1973 (1982). 

The plain language of Section 2(a) reaches judicial 

elections, using the same broad language as the 1965 Act, 

referring generally to "voting" and "vote," the definitions of 

which continued unchanged under the 1982 amendments. The 

legislative history of the 1982 amendments does not indicate that 

the terms "vote" or "voting" do not include judicial elections, 

or that "candidates for public office" does not include judges. 

While retaining the identical statutory reach, Congress added the 

word "results" as the measure of violation. The word 

representative does not appear in subsection (a). 

Section 2(b) is a new section added in the 1982 amendments. 

Section 2(a) refers to "denial or abridgement of the right . . . 

to vote on account of race or color . . ., as provided in 

subsection (b) of this section." Section 2(a) anticipates that 

subsection (b) will define how a violation of subsection (a) can 

be established. Other than the previously discussed vague use of 

the word "representative," there is no reason to suppose that 

subsection (b), defining a type of proof sufficient under Section 

2, was meant to withdraw all coverage from judicial elections. 

Before we turn to the legislative history of the 1982 amendments 

for evidence of intent to exclude judicial elections from 

coverage, we pause to emphasize that the exercise is itself not 

necessary. A straightforward reading of both Section 2(a) and 

2(b) leaves little doubt but that 2(a)’s broad reach was never  



  

intended to be limited by use of the word representative in the 

explanation in Section 2(b) of how a violation might be shown. 

Congress used the word "candidates" interchangeably with 

"representatives" in the legislative history. There was no 

indication that "representatives" was intended to have a limited 

meaning, applying only to legislative and executive officials, 

but not to elected members of the judiciary. Even Senator Dole, 

who proposed the language of compromise in Section 2, stated 

Citizens of all races are entitled to have an equal 
chance of electing candidates of their choice, but if 
they are fairly afforded that opportunity, and lose, 
the law should offer no redress. 

S. Rep. No. 417, 97th Cong., 2d Sess. 193 (Additional Views of 

Senator Robert Dole), reprinted in 1982 U.S. Code Cong. & Admin. 

News 177, 364 (emphasis added), and 

[T]he standard is whether the political processes are 
equally "open" in that members of a protected class 
have the same opportunity as others to participate in 
the political process and to elect candidates of their 
choice. 

Id. (emphasis added). 

In the one place where the judiciary is specifically 

mentioned in the legislative history of the 1982 amendments, the 

report of the subcommittee on the Constitution states that the 

term "’‘political subdivision’ encompasses all governmental units, 

including city and county councils, school boards, judicial 

districts, utility districts, as well as state legislatures." 

Report of the Subcommittee on the Constitution of the Committee 

of the Judiciary, S. Rep. 417, 97th Cong., 2d Sess., reprinted in 

1982 U.S. Code Cong. & Admin. News 177, 323 (emphasis added). Of 

13 

 



course, a brief statement in a subcommittee report opposing the 

amendments is not much. Nonetheless, the proponents of the 

changes to the Act did not contest this description, although 

they would have had incentive to do so to alleviate any fears of 

such extended coverage if such a broad scope of applicability 

were not intended. 

The Senate and House hearings regarding the 1982 amendments 

contain various references to judicial elections, primarily in 

the context of statistics presented to Congress indicating the 

progress made by minorities under the Act up to that date. The 

charts indicated when minorities were elected to office, and 

included judicial election results. See Extension of the Voting 

Rights Act: Hearings on E.R. 1407, H.R. 1731, H.R. 3112, H.R. 

3198, H.R. 3473 and H.R. 3498 Before the Subcomm. on Civil and 

Constitutional Rights of the House Comm. on the Judiciary, 97th 

cong. lst Sess. 38, 193, 239, 280, 502, 374, 804, 937, 1182, 

1188, 1515, 1528, 1535, 1745, 1839, 2647 (1981); Voting Rights 

Act: Hearings on 8. 53, 8. 1761, §s. 1975, 8. 1992, and H.R. 3112 

Before the Subcomm. on the Constitution of the Senate Comm. on 

the Judiciary, 97th Cong. 2d Sess. 669, 748, 788-89 (1982). 

To summarize, the relevant legislative history concerning 

the 1982 amendments suggests that Section 2(b) was intended to 

reach all elections, including judicial elections. There is no 

hint that Congress intended to withdraw coverage. 

But, it is argued, even if other aspects of Voting Rights 

law do apply to judicial elections, nonetheless, vote-dilution 

claims should not, because these claims are a new and 

14  



  

fundamentally different ground for relief under amended Section 2 

and because anti-dilution remedies are particularly intrusive on 

the judiciary. Therefore, the argument continues, had Congress 

intended the Act to apply to judicial elections, it should have 

said so explicitly, which it did not. We reject this argument 

that Congress singled out both judicial elections and dilution 

claims for distinct treatment. In plain language it argues that 

Congress affirmatively turned its head away from the dilution of 

minority votes in judicial elections. 

The first flaw in this argument is that vote-dilution claims 

were not newly authorized by amended Section 2. There were many 

vote dilution cases before 1982. The statutory prohibition of 

vote dilution by the Voting Rights Act is as old as the Act 

itself. It was first raised as early as 1965, the year of the 

Act's inception, when the Supreme Court observed 

It might well be that, designedly or otherwise, a 
multi-member constituency apportionment scheme, under 
the circumstances of a particular case, would operate 
to minimize or cancel out the voting strength of racial 
or political elements of the voting population. When 
this is demonstrated it will be time enough to consider 
whether the system still passes constitutional muster. 

Fortson v. Dorsey, 379 U.S. 433, 439 (1965). Vote-dilution 

claims were considered in Burns v Richardson, 384 U.S. 73 (1966), 

and Whitcomb v. Chavis, 403 U.S. 124 (1972), where the plaintiffs 

were unsuccessful, and in White v. Regester, 412 U.S. 755 (1973), 

and Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc), 

aff’d sub nom. East Carroll Parish School Board v. Marshall, 424 

U.S. 636 (1976), where the plaintiffs prevailed. These cases 

were decided under the results test. Finally Mobile v. Bolden, 

15 

 



446 U.S. 55 (1980), where the Supreme Court articulated the 

intent standard, was a dilution case. The 1965 Act, therefore, 

was considered to prohibit vote dilution as well as more 

straightforward denials of the right to vote. By its terms the 

act covered judicial elections. The 1982 amendments simply made 

it clear that results and not intent were the basis for finding a 

violation. However difficult in application the results test may 

have proved to be, the amendments to Section 2 did not themselves 

create a vote-dilution claim. To the contrary, the dilution of 

the voting strength of minorities was the accepted premise of the 

debate. Indeed Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 

1973) (en banc), the source of the "senate factors" that became 

part of the congressionally required inquiry, was a dilution 

case. 

Much of the legislative history of the 1982 amendments 

indicates that Congress intended to return to pre-Bolden 

standards, and was not otherwise reaching for a new and more 

intrusive private cause of action. As we will explain, at least 

Senator Hatch feared the language of the 1982 amendment would be 

much more intrusive, expressing concern that its uncertainty 

would lead to proportional representation. His fear was fueled 

by the restoration of the results test, however, not dilution 

theory, which had been part of the voting rights law for at least 

seventeen years. 

The principal focus of the House debates centered on Section 

5, but the Senate debates were centered on the meaning of the 

Section 2 amendments. Nonetheless, there was some discussion in 

16  



the House, and at least some witnesses argued that "the amended 

Section 2 . . . would restore to black Southerners the right to 

challenge alleged discriminatory election schemes which were 

developing before Mobile, [and that] notwithstanding the Court's 

claim to the contrary in Mobile, the intent test first became a 

constitutional standard in 1976 with Washington v. Davis, an 

employment case." Boyd & Markman, The 1982 Amendments to the 

Voting Rights Act: A Legislative History, 40 Wash. & Lee L. Rev. 

1347, 1366 (citing comments by James Blacksher and David 

Walbert). Congressman Sensenbrenner argued that the Rodino 

amendment to Section 2 was necessary in order to clarify the 

standard of proof required in order to establish violations of 

the Act. 127 Cong. Rec. H6850 (daily ed. Oct, 1981) at H6983. 

In the Senate Report on the Amendments the purpose of the 

was stated as 

designed to make clear that proof of discriminatory 
intent is not required to establish a violation of 
Section 2. It thereby restores the legal standards 
based upon the controlling Supreme Court precedents, 
which applied in voting discrimination claims prior to 
the litigation involved in Mobile v. Bolden. The 
amendment also adds a new subsection to Section 2 which 
delineates the legal standards under the results test 
by codifying the leading pre-Bolden vote dilution case, 
White v. Regester. 

S. Rep. 417, 97th Cong., 2d Sess., reprinted in 1982 U.S. Code 

Cong. & Admin. News at 179 (emphasis added). 

Senator Hatch opposed the change, arguing that it "would 

redefine the concept of ’'discrimination’ and would ‘transform the 

Fifteenth Amendment and the Voting Rights Act from provisions 

designed to ensure equal access and equal opportunity in the  



electoral process to those designed to ensure equal outcome and 

equal success.’" Boyd, Voting Rights Act Amendments, 40 Wash. & 

Lee L. Rev. at 1389 (quoting Hearings on the Voting Rights Act 

Before the Senate Subcommittee on the Constitution of the 

Committee on the Judiciary, 97th Cong., 2d Sess. 3 {(1982)).. But, 

Senator Mathias, a proponent of the bill, argued 

The House amendment is needed to clarify the burden of 
proof in voting discrimination cases and to remove the 
uncertainty caused by the failure of the Supreme Court 
to articulate a clear standard in the City of Mobile v. 
Bolden. . . . We are not trying to overrule the Court. 
The Court seems to be in some error about what the 
legislative intent was . . .. Prior to Bolden, a 
violation in voting discrimination cases [could] be 
shown by reference to a variety of factors that, when 
taken together, added up to a finding of illegal 
discrimination. But in Bolden, the plurality appears 
to have abandoned this totality of circumstances 
approach and to have replaced it with a requirement of 
specific evidence of intent . . . this is a requirement 
of a smoking gun, and I think it becomes a crippling 
blow to the overall effectiveness of the Act. 

Hearings on the Voting Rights Act Before the Senate Subcommittee 

on the Constitution of the Committee on the Judiciary, 97th 

Cong., 2d Sess. 3, 199 (1982). 

Senator Hatch persisted that the results test represented a 

new test, but supporters of the bill took issue with this view. 

Laughlin McDonald of the ACLU argued that "[p]rior to Mobile, it 

was understood by lawyers trying these cases and by the judges 

who were hearing them that a violation of voting rights could be 

made out upon proof of a bad purpose or effect . . . Mobile had a 

dramatic effect on our cases." Id. at 369. Defenders of the 

amendment assumed that the results test represented a restatement 

of the law prior to Bolden.  



Critics of the results test argued that even if the lower 

federal courts had adopted a results test in their pre-Bolden 

interpretation of Section 2, the original intent of Congress had 

been the establishment of a test in Section 2 using the 

traditional standard of intent or purpose. Boyd, Voting Rights 

Act Amendments, 40 Wash. & Lee L. Rev. at 1405 (citing Appendix 

to Additional Views by Senator Hatch, S. Rep. No. 417, 97th 

Cong., 2d Sess. 36 (1982)). Proponents responded by arguing that 

there was no evidence that Congress meant an intent test to 

apply. The Senate Report of the Committee on the Judiciary 

adopted this view, citing Attorney General Katzenbach's testimony 

during the hearings on the Voting Rights Act of 1965 to the 

effect that "Section 2 would ban ‘any kind of practice . . . if 

its purpose or effect was to deny or abridge the right to vote on 

account of race or color." S. Rep. 417, 97th Cong., 2d Sess., 

reprinted in 1982 U.S. Code Cong. & Admin. News at 194 (citing 

Hearings on S. 1564 before the Committee on the Judiciary, 89th 

Cong., 1st Sess., 191 (1965)). 

This legislative history generally indicates an intent to 

retain pre-Bolden standards rather than create a more intrusive 

new cause of action.® We have insisted in other contexts that 

Congress clearly state its intent to supplant traditional state 

prerogatives. Judicial insistence upon clear statement is an 

important interpretative tool vindicating concern for separation 
  

§ Of course, when the 1982 amendments are considered in light 
of the Supreme Court’s interpretation in Gingles, we cannot 
conclude that the 1982 amendments to Section 2 worked no changes 
from the pre-Bolden interpretation of the Act. But this is what 
it became, not necessarily what it was when voted upon. 

18  



of powers and federalism. See Atascadero State Hospital Vv. 

Scanlon, 473 U.S. 234, 105 8.Ct. 3142 (1985); Pennhurst State 

School and Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900 

(1984) (Pennhurst II). This insistence upon "an unequivocal 

expression of congressional intent," Pennhurst II, 465 U.S. at 

99, 104 S.Ct. at 907, is based upon the fundamental nature of the 

interests at stake, Atascadero, 105 S.Ct. at 3147 ("The 

‘constitutionally mandated balance of power’ between the states 

and the Federal Government was adopted by the Framers to ensure 

the protection of ‘our fundamental liberties.’") (quoting Garcia 

v. San Antonio Metropolitan Transport Authority, 469 U.S. 528, 

572,. 105. s.Ct. 1005, 1028 (Powell, J., dissenting)). These 

mighty principles do not carry us very far here. Congress has 

clearly expressed the Act’s application to the states, and has 

clearly expressed its intent that violations of the Act be 

determined by a results test rather than an intent standard. By 

these actions, the Act, with all of its intrusive effect, has 

been made to apply to the states. Significantly, the "results 

tests" did apply to all elections including judicial elections 

until the 1980 decision of Mobile v. Bolden, supra. Thus, 

Intrusive as: it is, the. Act, including the anti-dilution 

provisions, applied to judges before the 1982 amendment. The 

suggestion that anti-dilution and results tests were introduced 

by the 1982 amendments is wrong. 

The majority's argument is by necessity a demand for the 

exemption of judicial elections from the Act as a whole. We  



cannot recognize this broad exemption.’ Section 5, commonly seen 

as the most far reaching of the Voting Act provisions, see South 

Carolina v. Katzenbach, 383 U.S. 301, 358-62 (1966) (Black, J., 

dissenting), has allowed no escape for elected state judiciaries. 

Haith v. Martin, 618 F. Supp. 410 (E.D.N.C. 1985), aff’d men., 

477 U.S. 901, 106 S.Ct. 3268 (1986). As an inferior court we are 

bound by the holding of the Supreme Court that judicial elections 

are covered by Section 5 of the Act, a result explicitly urged by 

then Solicitor General Charles Fried and by then head of the 

Civil Rights Division, Assistant Attorney General William 

Bradford Reynolds. The same officials argued in Chisom that 

  

7 Congress dispensed with proof of purposeful violation for 
any voting qualifications or prerequisites to voting or standard, 
practice or procedure "which results in a denial or abridgement. 
‘ 2 It did so by using the word results in both 2(a) and 
2{b); The word representative, so critical to defendants’ 
argument, does not appear in the broad prohibition of 
Section 2(a). The Senate Report explained that the results test 
apply to a variety of violations. 

For example, a violation could be proved by showing 
that the election officials made absentee ballots 
available to white citizens without a corresponding 
opportunity being given to minority citizens. See 
Brown v. Post, 279 F. Supp. 60, 63-64 (W.D. La. 1968). 
Likewise, purging of voters could produce a 
discriminatory result if fair procedures were not 
followed. Toney v. White, 488 F.2d 310 (5th Cir. 
1973), or if the need for a purge were not shown or if 
opportunities for re-registration were unduly limited. 
Administration of an election could likewise have a 
discriminatory result if, for example, the information 
provided to voters substantially misled them in a 
discriminatory way. United States v. Post, 297 F. 
Supp. 46, 50-51 (W.D. La. 1969), 412 U.S. at 769-770. 

S. Rep. 97-417 n.119 p.208. 

We decline to say that Congress intended to exempt state 
judicial elections from statutory regulation of these practices. 

21  



amended Section 2 of the Act is equally applicable, as does the 

present administration. 

D. 

Finally, it is argued that an elected state judiciary is 

somehow free of the anti-dilution prohibitions of the Voting 

Rights Act but remains subject to its other strictures. The 

argument has two premises: First, because the pre-Bolden anti- 

dilution cases did not involve judicial elections, Section 2's 

prohibition against vote dilution does not extend to judicial 

elections; second, because the one-person, one-vote principle has 

been held not to apply to judicial elections, vote-dilution 

claims under Section 2 do not apply either. 

The first premise is obviously flawed. Nothing in the pre- 

Bolden cases suggests that the prohibition against vote dilution 

does not apply to judicial elections. That those cases involved 

elections of officials other than judges was happenstance; cases 

involving judicial elections simply had not yet come up. 

Furthermore, the statutory language cannot be parsed to read that 

judicial elections are not subject to dilution claims, but are 

subject to the remaining strictures of Section 2. This is so 

even if representative is found to mean elected members of the 

legislative and executive branches but not the judicial branches 

of state government. Further, concluding that Section 2 does not 

apply would create the anomaly that Section 5, conceded to reach 

elected judges, and Section 2 use identical language to define 

their reach. Section 2 either applies in its entirety or not at  



all and defendants’ efforts to soften the full force of their 

extraordinary contention must fail. 

The second premise--that because the one-person, one-vote 

principle does not apply to judicial elections, the vote-dilution 

prohibition does not either--must also fail. The prohibition of 

geographical discrimination in voting expressed in Baker v. Carr, 

369 U.S. 186 (1962) and Reynolds v. Sims, 377 U.S. 533 (1964), 

commonly referred to as the one-person, one-vote principle, was 

held not to apply to the apportionment of state judiciaries in 

Wells v. Edwards, 347 F. Supp. 453 (N.D. La. 1972) (3-judge 

court), aff‘d mem., 409 U.S. 1095 (1973)(three justices, 

dissenting). It is argued that vote dilution principles cannot 

be applied to an elected judiciary because the one-man, one-vote 

principle does not apply, and without requiring equal 

apportionment there is no benchmark for concluding that there is 

vote dilution. This argument rests upon the equating of racial 

and non-racial acts by the state that deny voting strength. Yet 

they measure equality on quite different planes. One is facially 

neutral in the matter of race; indeed compliance may adversely 

affect black voting power. The other rests on core concerns of 

the Civil War amendments--submerging of minority voting strength 

by the combined force of election methods and bigotry. In the 

more concrete terms of this case, that the state has chosen to 

allot thirty-some judges to Dallas County and only one to another 

county is not relevant. Submerging votes of protected minorities 

by a cohesive white majority is relevant.  



It is perverse now to reason that because the elections of 

state judges are free of the Reynolds’ command of numerical 

equality, an elected judiciary is a fortiori free from the racial 

equality commands of the Civil War Amendments and the Voting 

Rights Act. It is perverse because even the defenders of the 

"political thicket" doctrine at all times maintained that the 

courts must hold to the core values of the Civil War Amendments. 

For example, Justice Frankfurter, in his famous dissent to the 

Court’s entry into the political thicket in Baker v. Carr 

admitted, joined by Justice Harlan, that "explicit and clear 

constitutional imperatives guided judicial intervention in state 

government on the issue of black disenfranchisement." Baker v. 

Carr, 369 U.S. 186, 285-86 (1962) (Frankfurter, J., dissenting). 

The courts have struggled to develop a measure of dilution 

stemming from the combination of racial voting patterns and state 

election practices. Gingles itself was the first detailing of 

that enterprise by the Supreme Court. At earlier times, various 

justices have referred to our efforts to do so in Zimmer v. 

McKeithen as amorphous. But, this difficulty has nothing to do 

with the inapplicability of the command of numerical equality, 

nor is its difficulty peculiar to judicial elections. We remind 

that the effort in this case to measure the submerging of black 

and Hispanic voting power begins with a system that is 

numerically perfect--county-wide elections.  



We are pointed to several lower court opinions stating that 

judges are not "representatives. "® These cases held that the 

prohibition against geographical discrimination does not reach 

judicial elections. The argument is that because many of these 

courts held that judges are not "representatives," Congress must 

have meant a similar exclusion in its use of the word. We 

disagree. Words come to their full meaning in context. This 

argument of incorporated definition is unsupported by a trace of 

legislative history and is no more than an assertion. Indeed we 

showed above that Congress meant "representative" to include 

judges for the purposes of the Voting Rights Act. The Reynolds 

principle is race neutral, different, as we observed, from the 

race-based focus of the Voting Rights Act. However problematic 

  

8 See, e.g., Concerned Citizens of Southern Ohio, Inc. v. Pine 
Creek Conservancy Dist., 473 F. Supp. 334 ( S.D. Ohio 1977); The 
Ripon Society, Inc. v. National Republican Party, 525 F.2d 567 
(D.C. D.C. 1975), cert. denied, 424 U.S. 933 (1976); Fahey v. 
Darigan, 405 F. Supp. 1386 (D.C.R.I. 1975); Gilday v. Board of 
Elections of Hamilton County, Ohio, 472 F.2d 214 (6th Cir. 1972); 
Wells v. Edwards, 347 F. Supp. 453 (M.D. La.), Aff’d, 409 U.S. 
1095 (1972); Buchanan v. Gilligan, 349 F. Supp. 569 (N.D. Ohio 
1972); Holshouser v. Scott, 335 F. Supp. 928 (M.D.N.C. 1971), 
Aff'd, 409 U.S. 807 (1972); Irish v. Democratic-Farmer-Labor 
Party of Minnesota, 287 F. Supp. 794 (D.C. Minn.), aff’d, 399 
F.2d 119 (8th Cir. 1968). But cf. cases dealing with the Voting 
Rights Act, Southern Christian Leadership Conference of Alabama 
v. Siegelman, 714 F. Supp. 511 (M.D. Ala. 1989); Clark wv. 
Edwards, 725 F. Supp. 285 (M.D. La. 1988); Mallory v. Eyrich, 839 
F.2d 275 (6th Cir. 1988); Martin v. Allain, 658 F. Supp. 1183 
(S.D. Miss. 1987); Lefkovits v. State Board of Elections, 400 F. 
Supp. 1005 (N.D. Ill. 1975), aff’d, 424 U.S. 901 (1976). To the 
extent that any cases from the Sixth Circuit are used to support 
the proposition that Section 2 of the Voting Rights Act does not 
encompass judicial elections, they are no longer good law, for 
the Sixth Circuit specifically held in Mallory v. Eyrich, 839 
F.2d 275 (6th Cir. 1988), that Section 2 of the Voting Rights Act 
applies to judicial elections.  



locating the principle of one-person, one-vote in the fourteenth 

amendment may be, race-based concerns are at its core. Nothing 

in policy or logic suggests that declining to extend the Reynolds 

principle to judicial elections carries any sway in freeing 

judicial elections from race-focused concerns. 

Wells was distinguished from cases challenging election 

practices in Lefkovits v. State Board of Elections, 400 F. Supp. 

1005 (N.D. Ill. 1975) (3-judge court), aff‘d mem., 424 U.S. 901 

(1976), where the court stated: 

[Wlhen a judge is to be elected or retained, regardless 
of the scheme of apportionment, the equal protection 
clause requires that every qualified elector be given 
an equal opportunity to vote and have his vote counted. 

8... at: 1012. This was the precise point made by Solicitor 

General Fried in his successful argument to the Supreme Court 

that it should summarily affirm Haith v. Martin. 

In Haith the district court held that judicial elections are 

covered by Section 5 and the preclearance requirements of the 

Act. The district court found, using an analysis similar to that 

used by this circuit in Voter Information Project v. Baton Rouge, 

612 F.2d 208 (5th Cir. 1980), that although the one-person, one- 

vote principle may not apply to judicial elections, claims with 

respect to the Voting Rights Act do not deal with numerical 

apportionment, but with discrimination. The court held that "the 

Act applies to all voting without any limitation as to who, or 

what, is the object of the vote." 618 F. Supp. at 413.° In 
  

9 The changes required to be precleared in Haith had to do 
with the elections of trial judges. The district court did not 
reach the merits of any vote-dilution claims, for it had no 
jurisdiction to do so. New voting practices must be submitted to 

26  



short, Haith rejects the suggestion that inapplicability of the 

Reynolds principle is any barrier to the application of the 

Voting Rights Act. We are bound by Haith, and the relevance of 

that bind turns on whether Section 5, dealt with in Haith, and 

Section 2 are coextensive in their application to the judicial 

elections. We turn now to that question. 

E. 

Defendants have raised no compelling reason to distinguish 

between Section 5 and Section 2 with respect to their 

applicability to judicial elections. To distinguish the Sections 

would lead to the incongruous result that if a jurisdiction had a 

discriminatory voting procedure in place with respect to judicial 

elections it could not be challenged, but if the state sought to 

introduce that very procedure as a change from existing 

procedures, it would be subject to Section 5 preclearance and 

could not be implemented. Sections 2 and 5 operate in tandem, 

with Section 2 prohibiting the continued use of discriminatory 

practices, and Section 5 preventing the imposition of new 

discriminatory practices to replace those condemned in those 

areas subject to preclearance. Section 5 contains language 

defining its scope that is almost identical to the language in 

Section 2: "any voting qualification or prerequisite to voting, 

  

either the Attorney General or the United States District Court 
for the District of Columbia for preclearance. Other district 
courts only have jurisdiction to decide whether a practice is a 
change requiring preclearance. Consequently, the merits of a 
vote-dilution claim with respect to trial judges was not before 
the Supreme Court.  



  

or standard, practice, or procedure with respect to voting . . 

There are important differences in the two sections, 

however. Section 5 requires preclearance of any new voting 

practices and procedures, and, in determining whether or not a 

new practice is entitled to preclearance, only the effect of the 

new practice is considered. City of Lockhart v. United States, 

460 U.S. 125, 103 S.Ct. 998 (1983); Beer v. United States, 425 

U.8..-130.:(1976). This has been described as a retrogression 

test, with preclearance denied only if the new practice has a 

retrogressive effect, rather than a results test, for the effects 

of the existing system on minorities are not considered. Thus 

in Section 2 the entire scheme of voting practices and procedures 

is considered to see whether it results in less than an equal 

opportunity to participate in the political process, whereas 

under Section 5 only the effects of new practices and procedures 

are considered. Section 2 is, therefore, arguably more intrusive 

than Section 5,!° for Section 5 only regulates whether or not 

changes may be implemented, whereas Section 2, if a violation is 
  

10 Some see Section 5 as being the most intrusive aspect of the 
Voting Rights Act: 

This so-called "preclearance" requirement is one of the 
most extraordinary remedial provisions in an Act noted 
for its broad remedies. Even the Department of Justice 
has described it as a "substantial departure . . . from 
ordinary concepts of our federal system"; its 
encroachment on state sovereignty is significant and 
undeniable. The section must, therefore, be read and 
interpreted with care. 

United States v. Sheffield Board of Comm’rs, 435 U.S. 110, 141 
(1978) (Stevens, J., dissenting) (footnote omitted). See also 
Katzenbach, 383 U.S. at 358-62 (Black, J., dissenting). 

28 

 



  

found, can lead to the dismantling of an entire system of voting 

practices that may have been in place for many years. This is a 

distinction between the two sections, but our question must be 

whether the difference means that Section 5 applies to judicial 

elections, but Section 2 does not. There appears to be no 

relevant reason why judicial elections are so different from 

legislative or executive elections that both sections should 

apply to one and not the other. 

The Voting Rights Act plainly covered judicial elections 

before the 1982 amendments. It is equally plain that there is 

little evidence that Congress intended any retrenchment by its 

1982 amendments. In sum, defendants are left with the 

unconvincing argument that the changes of the 1982 amendments 

were fundamental in ways unique to judicial elections. 

Certainly, the Voting Rights Act intrudes heavily into state 

matters but it is no more specifically intrusive in judicial 

elections than in any others. We would hold that Section 2 of 

the Voting Rights Act applies to judicial elections. 

11. 

We now turn to the quarrel with the county-wide election of 

Texas trial judges. The Voting Rights Act does not purport to 

change the choices by a state of the duties and means for their 

discharge it gives to a particular office it chooses to create. 

Rather, the Act accepts these state creatures but patrols for 

impermissible vote dilution of minority voting power caused by 

the features of the election process in combination with racially 

molded voting patterns in any election of such officials. The 

29 

 



statute, however, gives no right to choose how the combination 

will be broken. It is important, then, that we keep in mind that 

the analysis of Thornburg v. Gingles is relevant only to an 

inquiry into whether an at-large election impermissibly dilutes 

minority voting strength; it is not a way of assessing every 

claimed vote dilution. 

Texas has structured its government such that it wields 

judicial power at the trial level through trial judges acting 

separately, with a «coterminous or linked electoral and 

jurisdictional base, each exercising the sum of judicial power at 

that level, and all with review by courts acting collegially. We 

are persuaded that, for purposes of the Voting Rights Act, 

because the fact and appearance of independence and fairness are 

so central to the judicial task, a state may structure its 

judicial offices to assure their presence when the means chosen 

are undeniably directly tailored to the objective. The choice of 

means by Texas here--tying elective base and jurisdiction-- 

defines the very manner by which Texas’ judicial services are 

delivered at the trial court level. These means define the 

office. Nothing in the Voting Rights Act grants federal courts 

the power to tamper with these choices. It requires no narrow 

reading to conclude that the statute does not by its terms 

purport to do more. Stated in traditional fourteenth amendment 

terms, there is compelling necessity sufficient to overcome the 

strict scrutiny of state acts impinging upon a fundamental 

interest. We would not lightly suppose that the Voting Rights  



Act reached further than the Civil Rights Amendments except for 

dispensing with the requirement of purposeful violation. 

It follows that inquiry into the Section 2 claims proceeds 

by accepting that trial judges are officials exercising the full 

authority of their positions alone whose full authority has its 

source in the electors from a district coterminous with their 

jurisdiction. There can be no dilution of votes for a single 

judge because each judge holds a complete judicial office. This 

feature of the trial judge will alone decide this case but, as we 

will explain, we need not rest only on this proposition. Rather, 

that the trial judges act singly is also integral to the linking 

of jurisdiction and elective base. 

A. 

The district courts are the primary trial courts in Texas. 

Indeed, the constitution of the Republic of Texas provided: 

The Republic of Texas shall be divided into convenient 
judicial districts, not less than three, nor more than 
eight. There shall be appointed for each district a 
judge, who shall reside in the same, and hold the 
courts at such times and places as Congress may by law 
direct. 

Guittard, Court Reform, Texas Style, 21 Sw. L.J. 451, 456 (1967). 

The first state constitution, adopted in 1845, contained 

essentially the same provision in article IV, section 6. This 

provision was amended in 1850 to allow for the election of 

district judges by the people, but the subsequent constitution of 

1861 provided that district judges were to be appointed. Tex. 

Const. art. V, § 7, interpretive commentary (1876, amended 1985). 

Texas constitutions adopted since 1861, including the current  



constitution, which was adopted in 1876, have provided for 

elected district judges. 

All the constitutions have provided that the district courts 

are to be held by district judges chosen from defined districts, 

following the pattern of the Constitution of the Republic of 

Texas. Although in the Constitution of the Republic of Texas the 

number of district courts was limited to not more than eight, 

subsequent constitutions have left the number of courts to the 

legislature. All Texas constitutions, including the current one, 

before it was amended in 1985, suggested that each district would 

be served by only one judge. See Tex. Const. art V, § 7 (1986, 

amended 1985) ("[f]or each district there shall be elected . . . 

a Judge . . . ."). A one judge per district system, however, 

presupposes districts of substantially equal population. 

Guittard, supra at 456. Thus, with the growth of the population 

in certain counties it became necessary for the legislature to 

make adjustments. 

The system challenged in this case was set up according to 

this pattern. See Tex. Gov't Code §§ 24.001-.954 (Vernon 1988 & 

Supp. 1990). With the exception of the 72nd district, each 

challenged judicial district in the nine targeted counties is 

coextensive with one county. The 72nd district is composed of 

two counties. Id. § 24.174 (Vernon 1988). Since 1907 district 

judges have been elected county-wide. In 1985, however, a 

section was added to article V of the 1876 Constitution which 

specifically allows the creation of judicial districts smaller 

than a county. Tex. Const. art. V, § 7a(i) (1985). A majority 

32  



of the voters in the county must authorize the division. Id. 

This power has yet to be exercised.!! 

The district courts in multi-district counties were unified 

for certain administrative purposes in 1939 through the passage 

of the Special Practice Act, which is now, for the most part, 

found in Tex. R. Civ. P. 330(e)-(i). Guittard, supra at 457-58. 

The relevant parts of the Special Practice Act essentially 

provide that cases can be freely transferred between judges and 

that any judge can work on any part of a case including 

preliminary matters. Also, "[a]ny judgment rendered or action 

taken by any judge in any of said courts in the county shall be 

valid and binding." Tex. R. Civ. P. 330(h). 

The Administrative Judicial Act, originally passed in 1927 

and subsequently amended on several occasions, divides Texas into 

nine administrative regions, each with a presiding judge 

appointed by the governor with the advice and consent of the 

senate. See Tex. Gov't Code §§ 74.005, .042 (Vernon 1988). The 

"presiding administrative judge is the key administrative officer 

in the Texas judicial system." Guittard, supra at 459. He is 

empowered to assign judges as necessary within his region. Id. 
  

11 The only time a district has been drawn smaller than a 
county was when the legislature divided both Dallas and Bexar 
counties into two districts, each district having jurisdiction 
throughout the whole county. The judge for each district was 
elected by the voters in the district in accordance with the 
constitution’s command, Tex. Const. art. V, § 7 (1876, amended 
1985), as opposed to being elected by county-wide vote as now. 
Thus, we cannot say that there is no precedent for dividing 
counties into geographically distinct districts. We can say that 
the state experimented with 2 of its 25 counties but abandoned 
the idea nearly a century ago. The statutes dividing Bexar and 
Dallas Counties into two districts were repealed in 1895 and 
1907, respectively. 

33  



§§ 74.052-056 (Vernon 1988 & Supp. 1990); see also Judicial 

Administration Rule 8 (Vernon 1988 & Supp. 1990). He is required 

to call two meetings of all judges in his administrative region 

each year and any other meetings as necessary. Tex. Gov’t Code 

§ 74.048(a) (Vernon 1988); Judicial Administration Rule 4 (Vernon 

1988 & Supp. 1990). This conference is for "consultation and 

counseling concerning the state of the civil and criminal 

business" and is empowered to promulgate administrative rules, 

rules governing the order of trials and county-wide 

recordkeeping, and other rules deemed necessary. Tex. Gov't Code 

§ 74.048(b)~-(c) (Vernon 1988). 

The local administrative judge is elected by a majority vote 

of all the judges in the county, including both district and 

statutory judges. Id. § 74.091 (Vernon 1988 & Supp. 1990). His 

duties on the county level are similar to those of the presiding 

administrative judge. See id. § 74.092. The local 

administrative judge has the power to assign judges within his 

county. Id. § 74.094. Under the leadership of the local 

administrative judge, the district and statutory judges in each 

county are directed to adopt local rules of administration. Id. 

§ 74.093. These rules must provide for, among other things, the 

"assignment, docketing, transfer, and hearing of all cases” and 

"fair and equitable division of caseloads." Id. § 74.094 (b); see 

also Judicial Administration Rule 9(b) (Vernon 1988 & Supp. 

1990). All local rules, of course, must be consistent with state 

and regional rules. Judicial Administration Rule 10 (Vernon 

1988). In this regard, the present Chief Justice of Texas 

34  



  

testified at trial that the only collegial decision-making by 

district judges in a county is in the handling of some 

administrative matters. 

B. 

A distinction was drawn between multi-member and single- 

member structures in Butts v. City of New York, 779 F.2d 141 (2d 

Cir. 1985), cert. denied, 478 U.S. 1021 (1986). In that case the 

plaintiffs contested a primary run-off law, contending that it 

violated the Equal Protection Clause and the Voting Rights Act. 

The Second Circuit noted that one of the ways that a class of 

citizens may have less opportunity to participate is when there 

are electoral arrangements that diminish a class's opportunity to 

elect representatives in proportion to its numbers. The court 

distinguished, however, between multi-member bodies, where at- 

large elections may produce this result, and elections for 

single-member offices. Butts, 779 F.2d at 148. The court found 

that the Supreme Court had made this distinction implicit in City 

of Port Arthur v. United States, 459 U.S. 159 (1982), where the 

Supreme Court struck down a run-off requirement for seats on a 

multi-member city council, but did not mention the run-off 

requirement for mayor. The Eleventh Circuit followed Butts in 

United States v. Dallas County, Ala., 850 F.2d 1430 (11th Cir. 

1988), in holding that "the at-large election of the probate 

judge is permissible under the Voting Rights Act with respect to 

the judicial aspects of that office." Id. at 1432 n.l. 

The positions at issue in Butts and Dallas County, and the 

position not considered in Port Arthur, were what can be viewed 

35 

 



  

as traditional single member offices, i.e., mayor, city council 

president, single probate judge, or comptroller. There was only 

one of each office in a given geographical area, and no problem 

with overlapping jurisdictions. Here, there are many judges with 

overlapping jurisdictions. Nonetheless, each acts alone in 

wielding judicial power, and once cases are assigned there is no 

overlap in decision-making. 

Indeed there are special courts created within some judicial 

districts that emphasize the single-member nature of the offices, 

for not all of the judges handle the same type of work. Some are 

courts of general jurisdiction, but some judges are elected 

specifically to handle juvenile cases, or family law cases, or 

criminal cases. To that extent they are separate offices, just 

as county treasurer and sheriff are different positions. of 

course, many of the judges do handle the same type of cases and 

the cases are assigned to any of these judges within a given 

geographical jurisdiction. There are many of them within a 

geographical area, and the plaintiffs would find this 

dispositive. A United States district court in Alabama has held 

that Alabama trial courts similar to the Texas courts are multi- 

member positions.!? Southern Christian Leadership Conf. v. 
  

12 The district court in Clark v. Edwards, 725 F.Supp. 285 
(M.D. La. 1988), also held that the at-large system of electing 
trial judges in Louisiana impermissibly diluted black voting 
strength, assuming that districts with more than one judicial 
position were multi-member districts. In Haith v. Martin, 618 
F.Supp. 410 (D.C.N.C. 1985), aff‘’d mem., 106 S.Ct 3268 (1986), 
the district court referred to the superior court judges in North 
Carolina, also trial judges, as “designated seats in multi-member 
districts." Id. at 414. The issue there was not a violation of 
Section 2, however, but whether Section 5 of the Act applied to 
such judicial elections, requiring preclearance of changes. 

36 

 



  

Siegelman, 714 F.Supp. 511 (M.D. Ala.. 1989). The court 

considered Dallas County and Butts, but concluded that 

Although neither court expressly defined the term 
"single-member office," it is clear to this court that 
the phrase, as used in those cases, refers to a 
situation where under no circumstances will there ever 
be more than one such position in a particular 
geographic voting area. 

Siegelman, 714 F.Supp. at 518. 

The court found that exclusive authority alone does not 

define single-member official. Id. We disagree with this view 

of multi-member versus single-member office and agree with the 

argument made by defendants in Siegelman that 

the hallmark of a single member office, as [the Butts 
and Dillard] courts use the term, is not the fact that 
the office is traditionally held by only one individual 
but, more importantly, the fact that the full authority 
of that office is exercised exclusively by one 
individual. 

714 F. Supp. at 518. 

Viewing district judges as members of a multi-member body is 

flawed in concept. Before any suits are filed, before any cases 

are assigned, there is a group of judges with concurrent 

jurisdiction, and plaintiffs maintain that this group should have 

minority members, so that minorities’ views and concerns are 

considered by the judges who decide important issues in their 

lives. The problem is that once a case is assigned, it is 

decided by only one judge. The other judges have absolutely no 

say over the disposition of that case, and no influence over the 

deciding judge. One commentator has described the Texas system 

as a "one-judge, one court organization at the trial level, with 

rigid jurisdictional lines and with each judge largely 

37 

 



  

independent of any supervisory control, except by way of 

appellate review." Guittard, Court Reform Texas Style, 21 Sw. 

L.J. at 455. 

C. 

It is implicit in Gingles that the effect of election 

practices must be considered after taking the underlying 

definition of the offices of state government as given. Even the 

sharply divided Gingles Court agreed that its inquiries were only 

into the legality of at-large methods of electing representatives 

to a larger governing body. Section 2 does not grant federal 

courts the authority to disregard the states’ basic arrangements. 

We would not rest on inference to support such a grant of 

authority. It would run counter to fundamental concepts of 

federalism: 

As broad as the congressional enforcement power is 
[under the fifteenth amendment], it is not unlimited. 
Specifically, . . . the power granted to Congress was 
not intended to strip the States of their power to 
govern themselves or to convert our national government 
of enumerated powers into a central government of 
unrestrained authority over every inch of the whole 
Nation. 

Oregon v. Mitchell, 400 U.S. 112, 128 (1970). 

The State of Texas has chosen to have trial judges who wield 

full judicial authority alone, a structure we must accept. 

Subdistricting would not create an equal opportunity for 

representation in decision-making, for 

[t]here can be no equal opportunity for representation 
within an office filled by one person. Whereas, in an 
election to a multi-member body, a minority class has 
an opportunity to secure a share of representation 
equal to that of other classes by electing its members 

38 

 



  

from districts in which it is dominant, there is no 
such thing as a "share" of a single-member office. 

Butts, 779 F.2d at 148. What subdistricting does, rather than 

provide minorities with representation in all decisions, is to 

simply allocate judges, and thus judicial decisions, among 

various population groups. The Voting Rights Act does not 

authorize such allocation. It cannot be made to authorize 

allocating judges by simply restating the office of district 

judge as a shared office or by asserting that the "function" of 

an office is not relevant. Saying that district judges in fact 

share a common office that can be subdistricted does not make it 

so. Nor does the assertion that function is not relevant make 

sense. Function is relevant to the threshold question of what 

features of the state arrangement define the office. 

These judges all hear and decide their own docket of cases, 

and their character as single-office holders instead of members 

of a multi-member body is emphasized by the problems inherent in 

attempting to break the linkage of jurisdiction and elective 

base. To do so may well lessen minority influence instead of 

increase it, surely not what Congress intended when it enacted 

the Voting Rights Act or its amendments. The current system of 

electing district judges at least permits voters to vote for each 

and every judicial position within a given district, generally a 

county. It is more likely, therefore, that minority voters will 

have some influence on the election of each judge. Under the 

district court’s order, each voter would have the opportunity to 

vote for only one judge in each district, the judge whose 

position was assigned to the subdivision. At the same time, a 

39 

 



  

minority litigant will be assigned at random to appear before any 

district judge in the county. Under the district court’s orders 

it is much more likely than not that a minority litigant will be 

assigned to appear before a judge who is not elected from a 

voting district with greater than 50% minority population. 

Instead, the great majority of district judges will be elected 

from new voting subdistricts with negligible minority populations 

and, consequently, negligible minority political influence on the 

outcome of those elections. Under the new order requiring 

election of judges from subdistricts, 9 of the 59 judicial 

positions in Harris county would be elected from minority- 

dominated subdivisions. Minority voters would have very little 

influence over the election of the other 50 judges, for the 

minority population is concentrated in those 9 subdivisions. 

When minority members are litigants, however, they would not 

necessarily appear before one of the judges elected from a 

minority-dominated subdivision. Instead, a minority member would 

have an 84.75% chance of appearing before a judge who has little 

direct political interest in being responsive to minority 

concerns. !3 The minority member would have a 98.3% chance of 

appearing before a judge in whose election he had not been able 

to vote. This is not like the situation in Chisom, where the 

judges were all part of one body, and every case that went to the 

Louisiana Supreme Court was heard by all of the judges, so every 

  

13 Moreover, cases without minority parties, but nonetheless 
concerning issues important to minority groups, would have an 
84.75% chance of being assigned to a judge with no accountability 
to minorities living in the county. 

40 

 



  

individual litigant from the state of Louisiana was assured that 

a judge for whom he had an opportunity to vote would hear his 

case. 

Requiring subdistricting for purposes of electing district 

judges, unlike other offices, would change the structure of the 

government because it would change the nature of the decision- 

making body and diminish the appearance if not fact of its 

judicial independence--a core element of a judicial office. 

Trial judges would still exercise their full authority alone, but 

that authority would no longer come from the entire electorate 

within their jurisdictional area. Subdistricting would result in 

decisions being made for the county as a whole by judges 

representing only a small fraction of the electorate. This does 

not occur when members of larger bodies are elected from 

subdistricts, for when the body makes a decision, the interests 

of all electors are still represented in each decision. When the 

decisions are not made by a group, the nature of the decision- 

making body as representative of all of the electors is 

fundamentally changed through subdistricting. The State of Texas 

has struck for the essential and defining quality of independence 

by defining the office of trial judge as a person who judges 

singly and whose power is derived from an electoral base equal to 

jurisdictional base. Trial judges are not members of a multi- 

member body, although there are many district judges, for the 

district judges do not decide cases as a body. Disregarding the 

state’s insisted linkage of elective base and jurisdiction for 

single office holders by subdistricting or ignoring their 

41 

 



  

discrete activity, causes a fundamental change in the very office 

of district judge, a result not contemplated by the Voting Rights 

Act. These elements define the office; they are far more than 

the "manner" of election. 

One can view the single-official doctrine as being no more 

than a statement of the mechanical impossibility of gaining 

greater representation for minorities. This approach is simply a 

resignation to the reality that if there is only one official, 

there can only be an at-large election. A second view is that 

the single official exception expresses far more. This view 

recognizes that we must accept the state’s definition of the 

office, and that where functions are singly exercised, providing 

single-member districts is no more than proportional 

representation in its most superficial form. 

Some district courts have proceeded with the first view, 

concluding that the single official doctrine is inapplicable 

where more than one official was elected at-large by the same 

electorate. It is plain that this entire suit rests upon the 

premise that the single official exception reflects no more than 

the reality that there is nothing to divide unless there is more 

than one judge in a single county. It is no accident that this 

suit attacks only the nine counties with multiple district judges 

and minority populations. But, the right secured to minorities 

under Section 2 of the Voting Rights Act to not have their vote 

diluted is expressed in the assertion that their interests are to 

be represented in governmental decisions. Where judges make 

their decisions alone, electing judges from single member 

42 

 



  

districts only increases the likelihood that a small number of 

governmental decisions will be influenced by minority interests, 

while minority interests will not be represented at all in the 

majority of judicial decisions. In this way subdistricting would 

work a fundamental change in the scheme of self governance chosen 

by the state of Texas, for it would change the authority behind 

the decisionmaking body of the Texas courts--and in doing so it 

would retard, not advance the goals of the Voting Rights Act. 

In sum, the single-official concept as we apply it here, 

whatever its full import in other contexts, is no more than a 

specific application of the basic principle that analysis under 

the Voting Rights Act proceeds without changing the state’s 

definition of the office. With the judges acting alone, each 

judge the decision-making body, a coterminous electoral and 

jurisdictional base is a core component of the office. 

Subdistricting would change that office in ways wholly different 

from changing the selection of members of a governing body as 

distinguished from the body itself. 

43 

 



  

D. 

Plaintiffs argue that the state's interest in linking 

jurisdiction and elective base is weakened because in 1985 Texas 

granted authority to counties to provide for the election of 

district judges from smaller geographical units. There are two 

difficulties with this argument. First, no county has elected to 

do so, and, second, the change only allows the creation of 

districts smaller than a county. It does not purport to 

authorize the election of district 3judges with countywide 

jurisdiction from districts smaller than the county. 

It is also suggested that there is no unacceptable 

appearance of bias (translate, you still have a court of law) in 

the prosecution of claims where one litigant is a constituent of 

a district judge and the other is not. The argument continues 

that such a circumstance is presented where one of the parties is 

from another county. This suggestion ignores the fact that the 

state recognized that elimination of this risk and appearance of 

bias was essential to the office it was creating by an elaborate 

set of rules controlling venue. Indeed, Texas has perhaps the 

most developed venue practice of any of the states, doubtlessly 

attributable to its diversity and size, allowing a mini-trial of 

venue facts. Whether a trial proceeds in the plaintiff’s home 

county in El Paso or a defendant’s home county in Dallas is of 

great moment. In sum, the intercounty bias argument proves, 

rather than defeats, the point. Avoiding the fact and appearance 

of bias is a powerful state interest. There is no corresponding 

system of venue rules for a subdistricted county. Rather, as we 

44 

 



  

explained, the state insists on linking the elective and 

jurisdictional base. Texas wants a trial judge, not a partisan. 

We are persuaded that Texas has a compelling interest in linking 

jurisdiction and elective base for judges acting alone. By 

definition there can be no dilution from the county-wide election 

of such single officials. 

45 

 



   



JOHNSON, Circuit Judge, dissenting: 

Introduction 
  

Let it be clear at the outset: this case presents 

compelling allegations of racial discrimination brought under the 

United States Voting Rights Act by black and Hispanic minorities. 

Congress intended the Voting Rights Act to be a key measure in 

its efforts to erase a haunting legacy of racial discrimination 

in the United States. The majority and concurring opinions in 

this case, in reasoning inconsistent with this Court’s long 

history of progressive and enlightened interpretation of civil 

rights legislation,l seriously cripple this congressional intent. 

Despite unmistakable congressional statements concerning the 

broad scope of the Voting Rights Act, the majority and concurring 

opinions have taken different directions to achieve the same 

result: they deny minority groups the right to challenge 

discriminatory practices in judicial elections. 

The majority opinion is completely isolated. No previous 

court has ever even suggested that judicial elections might be 

exempt from the reach of Section 2 of the Voting Rights Act. To 

the contrary, this Court, the United States Court of Appeals for 
  

i This Court’s history of courageous efforts to end racial 
discrimination in the South are well known. See J. Bass, 
Unlikely Heroes (1981). For instance, in 1973 this Court handed 
down a landmark Voting Rights Act decision, Zimmer v. McKeithen, 
485 F.2d 1297 (5th Cir. 1973) (en banc), aff'd sub nom. East 
Carroll Parish School Board v. Marshall, 424 U.S. 636 (1976) (per 
curiam), which established an enlightened set of standards to be 
applied under the Voting Rights Act's "totality of the 
circumstances" test. The Supreme Court later cited Zimmer as the 
authoritative exposition of these standards. See Thornburg v. 
Gingles, 478 U.S. 30, 36 n.4 (1986). 

  

   



the Fifth Circuit, had earlier concluded that Section 2 applied 

to all elections, including judicial elections. Not only does 

the majority opinion reverse this two year old precedent, but it 

also demonstrates a shocking lack of concern for the urgently 

argued position of the Attorney General, who has consistently 

maintained that the Voting Rights Act reaches all elections. The 

majority’s isolated opinion stands as a burning scar on the flesh 

of the Voting Rights Act; the majority opinion is not simply 

wrong, it is dangerous. 

Judge Higginbotham’s concurring opinion ("the concurrence") 

is scarcely removed from the majority opinion. Like the majority 

opinion, the concurrence is wholly inconsistent with the reasoned 

decisions of numerous courts and the established position of the 

Attorney General. The concurrence purports to rely upon 

compelling precedent from another federal court. But in truth, 

the concurrence is entirely premised upon a single case that is 

not authority for the concurring opinion‘s eccentric holding. 

The scar the concurrence would leave on the Voting Rights Act is 

no less injurious than that the majority inflicts; the 

concurrence is not only wrong, it too is dangerous. 

Several truths are self-evident from the clear language of 

the statute that had heretofore opened the electoral process to 

people of all colors. The Voting Rights Act focuses on the 

voter, not the elected official. The Act was intended to 

prohibit racial discrimination in all voting, the sole inquiry 

being whether the political processes are equally open to all 

persons, no matter their race or color. The Act is concerned  



  

only with the intent of persons of "race or color" in casting a 

ballot; it has no interest in the function of the person holding 

the office. Yet, the majority and concurring judges carve out a 

sweeping exception to the Act’s intended scope, concluding that 

the Voting Rights Act does not apply to judicial elections (or at 

least some judicial elections). I refuse to join my fellow 

judges’ purposeful and calculated deprivation of the Voting 

Rights Act’s ability to eliminate racial discrimination in the 

electoral process. 

I. 

THE MAJORITY OPINION 

In 1988 this Court handed down its decision in Chisom v. 

Edwards, 839 F.2d 1056 (5th Cir.), cert. denied sub nom. Roemer 
  

v. Chisom, 109 S. Ct. 390 (1988), which held that Section 2 of 

the Voting Rights Act applies to judicial elections. Today, in 

an opinion that mutilates familiar precepts of statutory 

construction, ? the majority rudely abandons the Chisom 
  

4 Purporting to apply the text of the statute, Majority Opinion 
at 23 n.1l4, the majority essentially concludes that the term 
"representative" in Section 2 of the Voting Rights Act is 
synonymous with the term "legislator." To the contrary, the 
majority is not applying the text of the statute, but rather it 
is applying its own novel definition of an isolated term 
appearing on one single occasion in the statute. Be that as it 
may, the majority still should never have reached the point of 
literally applying the text of the statute. In this Circuit, it 
is established law that "literal statutory construction is 
inappropriate if it would produce a result in conflict with the 
legislative purpose clearly manifested in an entire statute or 
statutory scheme or with clear legislative history." Almendariz 
v. Barrett-Fisher Co., 762 F.2d 1275, 1278 (5th Cir. 1985). 
Conveniently, the majority opinion ignored this established law, 
probably because it knew that its "literal" definition of 
"representative" was inconsistent with other language in the 
Voting Rights Act and the legislative history of the Act. 

 



precedent.3 The majority, concluding that the Act does not apply 

to any judicial election, delivers a devastating blow to the 
  

3 On May 27, 1988, a panel of this Court denied a Petition 
for Rehearing and for Rehearing En Banc in Chisom v. Edwards 
because "no member of this panel nor Judge in reqular active 
service on the Court ... requested that the Court be polled on 
rehearing en banc." (emphasis added). Despite the denial of 
rehearing in Chisom concerning the applicability of Section 2 of 
the Voting Rights Act to judicial elections, the majority now 
utilizes the grant of en banc consideration in the instant case 
to reconsider Chisom. Such action, while certainly not 
prohibited, offends the familiar principle of stare decisis. It 
cannot be stated too adamantly: the majority of this Court is 
reconsidering a decision on which, just barely two years ago, no 
member of the Court even suggested holding the mandate in order 
to explore the possibility of a need to reconsider the case en 
banc. 

  

  

  

  

The capricious path the instant case was forced to take to 
accomplish the rejection of Chisom v. Edwards is revealing. As 
late as January 11, 1990, just as a special session of the Texas 
legislature was convened, a panel of this Court, two members of 
which are now aligned with the majority position, entered an 
order staying the judgment of the district court in the instant 
case. The express intent of this order was to afford the 
legislature a reasonable time to address the issues presented in 
the federal district court’s decision. In part, it recited: 

IT IS ORDERED that appellants’ motion for stay pending 
appeal are [sic] GRANTED. We do so in order that the State of 
Texas may be allowed a reasonable opportunity to address the 
problem presented by the holding of the district court [in the 
instant case] entered November 8, 1989, that the state system of 
selecting judges is invalid as violating Section 2 of the Voting 
Rights Act. .. 

That holding, if sustained on appeal, will require an 
organic and wholesale review and reconstitution of the Texas 
judicial selection system, a task which should be addressed and 
carried out by the state’s elected representatives, rather than 
by the federal courts. Only if it becomes apparent that the 
state is unwilling to act with measured and appropriate speed in 
this regard should our courts intervene. When the State has had 
a reasonable period within which to address the problem presented 
in a special session of the Legislature, the Court will entertain 
a motion to dissolve. That has not yet occurred: when it does, 
we will be amenable to a motion to dissolve the stay which we 
enter today. 

League of United Latin American Citizens v. Clements, No. 90-8014 
(3th Cir. Jan. 11, 1990) (unpublished). The stay order, which 
cited Chisom and presumed the validity of Chisom, remained in 
effect until March 28, 1990, when it was dissolved by the panel  



Act’s continuing ability to eliminate racial discrimination in 

voting. At this stage, there is little reason to revisit in 

detail Judge Higginbotham’s refutation of the majority’s attack 

on Chisom v. Edwards. It is sufficient simply to reiterate a few 

essential--and well established--points. 

Congress enacted the Voting Rights Act in 1965 "to rid the 

country of racial discrimination in voting." South Carolina v. 

Katzenbach, 383 U.S. 301, 315 (1966). Since the inception of the 

Act, the Supreme Court has consistently interpreted the Act in a 

manner which affords it "the broadest possible scope" in 

combatting racial discrimination. Allen v. State Board of 

Elections, 393 U.S. 544, 567 (1969). Other courts, including 

this Court, have followed the Supreme Court’s lead. See, e.qg., 
  

Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc), 

aff'd sub nom. East Carroll Parish School Board v. Marshall, 424   

U.S. 636 (1976) (per curiam). As a consequence, the Voting 

Rights Act regulates a wide range of voting practices and 

procedures. See United States v. Board of Commissioners, 435 

U.S. 110, 122+23..(1978). 

  

which originally heard the instant case. That same day, the 
members of this Court voted to hear the case en banc on an 
expedited schedule. The panel opinion here was rendered on May 
11, 1990, and the en banc Court heard oral arguments on June 19, 
1990. 

The presumption of this Court as late as January 11, 1990, 
concerning the validity of Chisom and its inescapable holding 
that the Voting Rights Act applies to all judicial elections was 
obliterated like parched grass in the face of a late summer 
prairie fire. The fire is beyond reason or control as it races 
across the prairie--yet its cause is unknown.  



For a resolution of the instant case, it is unnecessary to 

look beyond Section 14(c)(1) of the Voting Rights Act, which 

defines the salient word "voting" and describes the range of 

election practices that are encompassed within the regulatory 

sphere of the Act: 
The terms "vote" or "voting" shall include all action necessary 
to make a vote effective in any primary, special, or general 
election, including, but not limited to, registration, listing 
pursuant to this subchapter or other action required by law 
prerequisite to voting, casting a ballot, and having such ballot 
counted properly and included in the appropriate totals of votes 
cast with respect to candidates for public or party office and 
propositions for which votes are received in an election. 

42 U.S.C. § 19731 (1982) (emphasis added). Can this language in 

the Act itself be ignored? It is indisputable that Texas’ 

elected judges are "candidates for public or party office." 

Thus, by its express terms, the Voting Rights Act applies to 

state judicial elections. Indeed, this is the only result 

consistent with the plain language of the Act. 

Nonetheless, relying on a restrictive definition of the 

single word "representative" in Section 2 of the Act, the 

majority determines that the Voting Rights Act does not 

necessarily apply to all "candidates for public or party office." 

Such a conclusion breaches several established canons of 

statutory construction. The majority's restrictive definition of 

"representative" violates the requirement that remedial 

legislation such as the Voting Rights Act be broadly construed. 

See Allen, 393 U.S. at 565. The majority’s reliance on an 

isolated term violates the requirement that a reviewing court 

examine a statute in its entirety. See Duke v. University of  



  

Texas at El Paso, 663 F.2d 522, 525 (1981), cert. denied, 469 
  

U.S. 922 (1984). 

Moreover, the majority’s awkward decision violates the 

requirement that a reviewing court avoid statutory 

interpretations that lead to an absurd or inconsistent result. 

See United States v. Turkette, 452 U.S. 576, 580 (1981). As just 

one example of the majority opinion’s troubled logic, consider 

the majority’s crude attempt to distinguish judges from other 

elected officials. The majority repeatedly urges that judges are 

not "representatives" within the comprehension of the Voting 

Rights Act because judges are not advocates; that is, judges 
  

"speak for and to the entire community, never for segments of it 

and still less for particular individuals." Majority Opinion at 

19 (emphasis in original). Yet, at the same time, the majority 

recognizes that this Court has already found that many other 

elected officials are "representatives," officials who also 

cannot fairly be described as advocates for segments of the 

community or particular individuals. Majority Opinion at 23 

n.l14. A county sheriff or court clerk, for example, speaks for 

and to the entire community--is responsible for and to the entire 

community. If a county sheriff or court clerk, as with a judge, 

attempted to act in a partisan manner, that person would be 

grossly deficient in his or her duties. 

It should be clear by this point that the majority’s 

decision is less an attempt to interpret congressional intent 

concerning the reach of the Voting Rights Act, and more an 

attempt to effectuate the majority’s policy determination that 

 



state judicial elections should be immune from federal 

congressional interference. Perhaps the strongest evidence of 

the majority’s desire to supplant the stated aims of Congress 

with its own policy preferences is its conspicuously casual 

treatment of the position of the United States Attorney General. 

In United States v. Board of Commissioners, 435 U.S. at 131, the 

Supreme Court concluded that the Attorney General's 

interpretation of the Voting Rights Act is persuasive evidence of 

the original congressional understanding of the Act, "especially 

in light of the extensive role the Attorney General played in 

drafting the statute and explaining its operation to Congress." 

Id. In the present case, the Attorney General has filed an 

amicus curiae brief which maintains that the scope of Section 2 

of the Voting Rights Act reaches all elections, including 
  

judicial elections. But remarkably, the majority dismisses the 
  

Attorney General's position, noting simply that it does not seem 

to "weigh very heavily in the scales." Majority Opinion at 23. 

The application of Section 2 should depend solely on the 

fact of nomination or election. As the Eleventh Circuit has--a 

Circuit which shares this Court’s long tradition of enlightened 

enforcement of federal civil rights legislation--has noted, 

"[n]owhere in the language of Section 2 nor in the legislative 

history does Congress condition the applicability of Section 2 on 

the function performed by an elected official." Dillard v. 

Crenshaw County, 831 F.2d 246, 250-51 (llth Cir. 1987) (emphasis 

added). By exempting an entire class of elected officials from 

Section 2 simply on the basis of their judicial function, the  



majority has not only inextricably placed this Court at odds with 

the conclusions of other circuits, but also has struck a 

devastating blow to the Voting Rights Act’s ability to alleviate 

racial discrimination in the voting process. 

II. 

THE CONCURRENCE 

Judge Higginbotham’s concurring opinion concludes, and I 

agree, that the Voting Rights Act applies to judicial elections. 

The concurrence, however, is itself seriously flawed. Critical 

examination of the concurring opinion’s construction of the 

single office holder exception reveals the error:%4 the 

concurrence’s creative interpretation of the Voting Rights Act 

would result in the per se exclusion from the reach of the Voting 

Rights Act of elections for the greatest part of the judiciary-- 

state district court judges. In a troubling display of judicial 

intervention, the concurrence'’s result-oriented opinion fails 

even to acknowledge the clear purpose of the Act evidenced in its 

language and legislative history. 

In adopting the Civil War amendments, Congress was propelled 

by a concern for the emasculation of minority voting strength 

through the puissant coupling of bigotry with state supported 

election practices.> Similarly, a century later, Congress 

enacted the Voting Rights Act for the broad purpose of 

eradicating racial discrimination in voting across the length and 
  

4 The concurrence asserts that there can be no dilution of 
minority voting strength where the elected official acts 
independently, regardless of whether there are one or one hundred 
such official posts in the relevant district. 

See Concurring Opinion at 24.  



breadth of this nation.® In 1982 amendments to the Act, Congress 

strengthened the Act’s promise to ensure minorities equal access 

to the political process. The Senate Report accompanying the 

1982 amendments indicates that the Voting Rights Act was designed 

not only to correct active discrimination, but to "deal with the 

accumulation of discrimination." Senate Report Accompanying the 

1982 Amendments to the Voting Rights Act at 5. Especially in 

light of the history and language of the Act, it is axiomatic 

that the relevant inquiry centers on the voter--specifically, the 

minority voter--not on the elected official. The Act is, after 

all, the Voting Rights Act. 

Section 2 and the Judiciary 
  

The majority opinion concludes that state district court 

judges are not "representatives" within the comprehension of 

Section 2 of the Voting Rights Act. However, as the concurrence 

aptly notes, the term "representative" in Section 2 is not 

synonymous with "legislator." Congress intended the Voting 

Rights Act to prohibit and alleviate discrimination in all 

voting, a term which Congress defined to include any action 

necessary to make a vote effective in any election with respect 

to any candidate for public or party office.’ From the language 
  

  

6 president Ford's poignant words are as powerful today, fifteen 
years later: "the right to vote is the very foundation of our 
American system, and nothing must interfere with this very 
precious right." President Gerald Ford, Remarks Upon Signing A 
Bill Extending the Voting Rights Act of 1965 (August 6, 1975). 

The United States Attorneys General, in an unbroken chain, 
have consistently interpreted the Voting Rights Act broadly, and, 
more recently, have interpreted Section 2 to reach elected 
judges. At the time the original Voting Rights Act was passed in 
1965, the Attorney General stated that "every election in which 
registered voters are permitted to vote would be covered." 

  

30 -  



  

of the Act as a whole, it is clear that the term "representative" 

corresponds with the term "candidate." It is also clear that a 

contestant in a judicial election is a candidate for public 

office. Thus, the language and reasoning of the concurring 

opinion is sound to the limited extent it urges that neither the 

words nor the legislative history of the Act indicate any 

intention on the part of Congress to exempt judicial elections 

from coverage. 

This Court has previously addressed the question of the 

Act’s application to judicial elections. In Chisom v. Edwards, a 

case which examined the application of Section 2 in the context 

of a challenge to Louisiana’s system of electing state supreme 

  

voting Rights: Hearing Before Subcommittee No. 5 of the House 
Judiciary Committee, 89th Cong. lst Sess. 21 (1965) (emphasis 
added) . In both Chisom v. Edwards, 839 F.2d 1056 (5th Cir.), 
cert. denied sub nom. Roemer v. Chisom, 109 S. Ct. 390 (1988), 
and in the instant case, the Attorney General filed an amicus 
brief in which he maintains that the scope of Section 2 reaches 
all elections, including judicial elections. 
Additionally, in a recent Section 5 preclearance review, the 
Assistant Attorney General denied preclearance of a proposed 
majority vote, designated post, at-large method of judicial 
elections in Georgia similar to that under attack in the instant 
case, concluding in part: 
Our review of a broad range of evidence in this regard indicates 
that polarized voting generally prevails in all of the superior 
court circuits now under review and there is a consistent lack of 
minority electoral success in at-large elections. Thus, it 
appears that, in the totality of the circumstances, black voters 
in these circuits have a limited opportunity to elect their 
preferred candidates.... 

  

  

  

In addition, the state has not shown how its interests are 
served by circuitwide elections in many of the circuits now 
at issue where the at-large election feature is in apparent 
violation of Section 2 of the Voting Rights Act. 

Letter from Assistant Attorney General John R. Dunne to Georgia 
Attorney General Michael J. Bowers (Apr. 25, 1990). - 

w 11 % 

 



court justices, a panel of this Court held that Section 2 applies 

with equal force to judicial elections. As in the concurring 

opinion in the instant case, the outcome in Chisom hinged upon an 

examination of both the plain language and the legislative 

history of the Act. 

Despite a basic agreement with this Court'’s earlier analysis 

in Chisom, the concurrence here attempts to shift the focus of 

the Voting Rights Act from the minority voter to the elected 

official. This Court recognized in Chisom that the term 

"representative" for purposes of the Voting Rights Act may be 

defined as anyone selected by popular election from a field of 

candidates to fill an office.8 The definition of 

"representative" in Chisom intertwines with the statute’s 

definitions of "vote" and "voting" and assures the Act's 

application to all elections. The concurrence in the present 

case, however, subtly constricts this definition. While 

acknowledging that Congress used the terms "candidate" and 

"representative" interchangeably when drafting the Act, the 

concurrence defines "representative," at least within the narrow 

confines of Texas elections for district judges, as "one who is 

chosen to be responsive to the people and to represent their 

interests in decisions." Concurring Opinion at 7. The 

concurrence’s definition attempts to precipitously limit the 

scope of the Act's remedial provisions, emphasizing the position 

of the office-holder over the status of the voter. The 

  

8 cChisom, 839 F.2d at 1060.  



anticipated responsive nature of a particular office (or office 

holder) is of absolutely no consequence to the initial and 

dispositive question of whether the office is filled through the 

use of an electoral process.’ Nonetheless, the concurrence’s 

definition is necessary to its "single official" argqument--which 

is based in part on an examination of the duties and functions 

performed by a trial judge once he or she is in office--and the 

argument that the State has a compelling interest in retaining 

the current system. 

The Minority Voter 
  

Despite Congress’ clear statement that the Voting Rights Act 

applies to all voting, the concurrence, through rhetoric 
  

9 1t is true that one of the Senate Report factors that may 
be probative in a vote dilution case to establish a Section 2(b) 
violation is "whether there is a significant lack of 
responsiveness on the part of elected officials to the 
particularized needs of the members of the minority group." S. 
Rep. at 29. However, the Senate Report emphasizes that 
“[ulnresponsiveness is not an essential part of plaintiff's 
case." Id. at n.116. In fact, in Clark v. Edwards, 725 F. Supp. 
285 (M.D. La. 1988), a case involving a vote dilution challenge 
to the use of multi-member districts and at-large voting to elect 
Louisiana district court, family court, and court of appeals 
judges, the district court remarked that the element of 
responsive representation simply is not a consideration in a 
judicial election case: 

The Senate Report...also suggested that lack of 
responsiveness on the part of elected officials to the 
particularized need of the members of the minority group 
might be a factor in some cases. ... That obviously is not a 
factor in this case since the only response which a member 
of the judiciary may make is to rule on all matters fairly 
and impartially, without favoring or being prejudiced 
against any group. 

Id. at 301. Consequently, while a state’s interest in retaining 
a system which exudes an appearance of impartiality may be 
considered among the totality of the circumstances, the converse, 
actual responsiveness, should not be relevant to a claim of vote 
dilution in the context of a judicial election. 

“13  



surrounding the term "representative," attempts to shift 

attention from the one casting a vote to the one for whom the 

vote is cast. Not one word or thought contained in Section 2(a) 

or (b) supports, or is suggested by the concurrence in support, 

of this effort. The Voting Rights Act was designed to eradicate 

discrimination in voting, and the essential inquiry is whether 

the political processes leading to the casting of the ballot are 

equally open to all persons, no matter what their race or color. 

Nothing in the language of Section 2 suggests that a 

reviewing court should concentrate on the type of election under 

dispute--whether it is for a mayor, an alderman, a legislator, a 

constable, a judge or any other kind of elected official.l0 

Rather, the sole focus of Section 2 is the minority voter-- 

  

10 Section 2, as amended in 1982, now provides: 
(a) No voting qualification or prerequisite to voting or 

standard practice, or procedure shall be imposed or applied by 
any State or political subdivision in a manner which results in a 
denial or abridgement of the right of any citizen of the United 
States to vote on account of race or color, or in contravention 
of the guarantees set forth in section 1973b(f)(2) of this title, 
as provided in subsection (b) of this section. 

(b) A violation of subsection (a) is established if, based 
on the totality of circumstances, it is shown that the political 
processes leading to nomination or election in the State or 
political subdivision are not equally open to participation by 
members of a class of citizens protected by subsection (a) of 
this section in that its members have less opportunity than other 
members of the electorate to participate in the political process 
and to elect representatives of their choice. The extent to 
which members of a protected class have been elected to office in 
the State or political subdivision is one circumstance which may 
be considered: Provided, That nothing in this section 
establishes a right to have members of a protected class elected 
in numbers equal to their proportion in the population. 

42 U.S.C. § 1973 (1982).  



  

specifically, whether the minority voter has been allowed the 

opportunity to participate fully in the democratic process. 

Nowhere in the language of Section 2 nor in the 
legislative history does Congress condition the 
applicability of Section 2 on the function performed by 
an elected official. ... Once a post is open to the 
electorate, ... if it is shown that the context of that 
election creates a discriminatory but corrigible 
election practice, it must be open in a way that allows 
racial groups to participate equally. 

Dillard v. Crenshaw County, 831 F.2d 246, 250-51 (llth Cir. 
1987).11 

The instant case reveals an electoral scheme which is 

"discriminatory but corrigible." Whenever a number of officials 

with similar functions are elected from within a discrete 

geographic area, there exists the inherent potential for vote 

dilution. The concurrence, however, ignores this verifiable 

fact, and concludes that, because the full authority of the 

elected position is exercised exclusively by one individual, 
  

there can be no impermissible dilution of the minority vote. 
  

The Voting Rights Act is not concerned with the power and 

authority vested in the elected office. It is the value and 

efficacy of the political process accorded the voter, not the 

office holder, which is secured by statute. The Supreme Court's 

decision in Thornburg v. Ginglesl2 stressed Congressional concern 

over the submergence of minority votes as a result of significant 

white bloc voting. The express language of Section 2(b), which 

looks only to the "political processes leading to nomination or 
  

11 this Court, in Chisom, stressed the soundness of the Dillard 
court’s reasoning. Chisom, 839 F.2d at 1060. 
12 478 u.s. 30 (1986). 

- 15 w 

 



  

election” and to whether minority members "have less opportunity 

than other members of the electorate to participate in the 

political process and to elect representatives of their choice," 

emphasizes this Congressional concern on the voter and not the 

elected official. Congress focused in Section 2 on the 

elimination of discrimination in voting (thus the title of the 

Act), and on the creation of minority opportunities for electoral 

success. See Gingles, 478 U.S. 30, 48 (1986); Haith v. Martin, 

618 F. Supp. 410, 413 (E.D.N.C. 1985), aff’d, 477 U.S. 901 (1986) 

(the Act applies "to all voting without any limitation as to who, 

or what, is the object of the vote") (emphasis in original). 

The concurrence asserts that the essential right secured to 

minorities under Section 2 is the right to have "their 

interests...represented in governmental decisions." Concurring 

Opinion at 45. In this way, the concurrence bolsters its 

argument that creating smaller districts in multi-seat counties 

would create a perverse result by lessening "minority influence" 

over the decisions reached in lawsuits. Going further afield, 

the concurrence expresses concern that under a system such as 

that authorized in the district court’s interim plan, there is a 

high probability that a minority voter appearing in court will 

have his or her case heard by a judge whom he or she had no hand 

in electing. 

The concurrence’s discussion approaches the perceived 

problem from the wrong end; 13 again, quite simply, the focus 
  

13 Congress has acknowledged that, depending on whether the 
right or the wrong question is posed, courts may reach a 

- 16 

 



  

should be on the rights of the voter, not the litigant. The 

essential inquiry is whether the minority vote is diluted-- 

whether minority citizens have an equal chance of electing 

candidates of their choice. As the concurrence acknowledges, the 

standard is whether the political processes are equally open to 

participation. The focus of the 1982 legislative history of the 

Act, the 1985 amendment, and Gingles is on electoral 

opportunities and success. 

The concurrence refuses to acknowledge the preeminence, 

within the context of the Voting Rights Act, of the efficacy of 

the minority vote. The concurrence notes that, because all 

registered voters in the county vote for all the judges, 

"minority voters have some influence on the election of each 

judge." Concurring Opinion at 42. This statement entirely 

avoids the issue: the instant case is before this Court because 

minority voters have asserted and proven that any influence they 

may potentially have as a cohesive voice--whether as to the 
  

conclusion which is totally anathema to the intent of the 
legislature. See, e.g., S. Rep. at 28 (discussing the "wrong 
test" imposed by the intent test). The concurring opinion’s 
rear-ended approach can best be illustrated through the use of 
another question: Does the Act guarantee that minority interests 
are represented or that minorities have access to the political 
process? While it is undoubtedly presumed that an elected 
official will represent the desires of the voters, the Voting 
Rights Act does not speak to such a presumption. While it may 
seem that the two questions are simply different sides of the 
same coin, the distinction is one which the legislature has 
contemplated. If the concurrence’s statement that the "right 
secured to minorities under Section 2 of the Voting Rights Act to 
not have their vote diluted is expressed in the assertion that 
their interests are to be represented in governmental decisions" 
were correct, this would lead to the absurd conclusion that a 
plaintiff could, pursuant to the Voting Rights Act, bring to task 
an elected official who has not, during his tenure in office, 
given proper deference to minority interests. 

  

- 17% 

 



  

election of one judge or several--is subliexged at the ballot box 

by white bloc voting. 

Even more disturbing, however, is the concurrence’s 

confusion of the minority as voter and the minority as litigant. 

This confusion is best illustrated by the concurrence’s concern 

that, under a single member districting scheme such as that 

imposed by the federal district court’s interim plan, "a minority 

member would have an 84.75% chance of appearing before a judge 

who has no direct political interest in being responsive to 

minority concerns." Id. at 43. The right of minorities to an 

equal opportunity to elect the candidates of their choice 

encompasses more far-reaching effects than the statistical 

probability that a minority litigant will appear before a judge 

of like race or color.l4 Despite the progress achieved under 

federal and state civil rights statutes, minorities in this 

country are far from free of the lingering legacy of racial 

discrimination, even at the ballot box. 

The Function of Function 
  

When juxtaposed against the express language of the Act, a 

test which requires an examination of the function of the elected 

  

14 Black and Hispanic judges serve as role models for other 
minority group members, who may not have envisioned a legal or 
judicial career as a real possibility in the past. In addition, 
minority electoral victories encourage other minority members to 
participate in the political process by voting and by running for 
office. Persistent minority defeat, on the other hand, leads to 
apathy among minority voters and a feeling of exclusion from the 
opportunity to join in the process of self-government. To assert 
that these interests are any less tangible because of the nature 
of the elected office is to pervert the very core of the Voting 
Rights Act. 

- 18 - 

 



  

official is inherently suspect by virtue of its obvious judicial 

invention. As one court has emphatically noted, 

[n]Jowhere in the 239 pages of the [Senate] Report is 
there any indication whatsoever that Congress intended 
the Voting Rights Act to apply to only particular types 
of elections. Rather, the entire Report indicates ... 
that the 1982 amendment was intended to effect an 
expansive application of the Act to state and local 
elections. 

Southern Christian Leadership Conference v. Siegelman, 714 F. 

Supp. 511 (M.D. Ala. 1989). The title or duties of an elected 

office are inconsequential to the fundamental question of 

whether, due to significant white bloc voting, the votes of a 

cohesive minority group are consistently submerged and rendered 

ineffectual to elect the minority’s preferred candidate. 

The concurrence opines that "[f]unction is relevant to the 

threshold question of what features of the state arrangement 

define the office." Concurring Opinion at 41. This statement in 

its broadest sense is undoubtedly true. In the context of the 

Voting Rights Act, however, the compelling question is at what 

point that function will be examined. The Act’s focus on the 

minority voter reinforces the proposition that the function of 

the elected official is only relevant to an examination of 

whether, under the totality of the circumstances, a Section 2 

violation has been established, not whether Section 2 is 

applicable. 

To focus primarily on the function of the official during 

the initial analysis of a Voting Rights Act claim is to ignore 

the essential inquiry of the Act: “whether, as a result of the 

challenged practice or structure, the fundamental right of 
  

“i 10 im 

 



  

minorities to elect candidates of their choice and to participate 

equally in the political process has been violated." Senate 

Report at 28 (emphasis added). The quoted language indicates 

that, contrary to the concurring opinion’s assertions, a 

reviewing court is not bound to accept a state’s governmental 

plan if that plan in fact results in the illegal submergence of 

minority votes.l3 If deference to the function of an official 

were in fact required, courts would have been acting contrary to 

the law since the very origin of voting rights litigation. 

Surely the imposition of single member districts in a judicial 

context treads no more upon a state’s electoral scheme than the 

now familiar court-ordered displacement of well-entrenched at- 

large election schemes for legislative bodies.l16 

Vote Dilution and Single-Member Offices 
  

The concurrence, characterizing Texas district court judges 

as single officeholders, 17 concludes that no violation of Section 
  

15 In fact, the concurrence concedes that "section 2, if a 
violation is found, can lead to the dismantling of an entire 
system of voting practices that may have been in place for many 
ears." Concurring Opinion at 30. 

The concurrence repeatedly argues that affording the minority 
plaintiffs relief in the instant case would totally dismantle the 
trial-level judicial system which Texas has chosen to implement. 
The torch has already destroyed this straw man; as the 
concurrence has pointed out, Texas has structured its government 
such that elected trial judges often wield their power 
independently. Even if single member districting should be the 
remedy ultimately imposed in the instant case, this fundamental 
characterization would not be altered. 

17 A court reviewing a claim of vote dilution must look to the 
plaintiffs and whether their votes, although cast, are impotent. 
The plaintiffs’ success depends on an adequate demonstration of 
vote dilution. This task may be impossible where there is only 
one office at issue in the relevant jurisdiction because the 
election of an official to such an office, - with unique 
responsibilities over a discrete geographical area, is unlikely 

- D0 iv 

 



  

2(b) can be shown because "each judge holds a complete judicial 

office," and there can be no share of such a single-member 

office. Concurring Opinion at 33. This application of the so- 

called "single officeholder exception" is entirely without 

support. 

The concurrence relies primarily on the Second Circuit'’s 

opinion in Butts v. City of New York, 779 F.2d 141 (2d Cir. 

1985), which examined New York's primary run-off election law. 

The contested New York law provided that if no candidate for 

mayor, city council president, or comptroller received more than 

forty percent of the vote in a party primary, then a run-off 

election is held between the two candidates receiving the most 

votes. The district court, concluding that the totality of the 

circumstances demonstrated a Section 2 violation, found in favor 

of the minority plaintiffs. The Second Circuit reversed, noting 

  

that 

[tlhe concept of a class’s impaired opportunity 
for equal representation [cannot be]...uncritically 
transfer(red] from the context of elections for multi- 
member bodies to that of elections for single-member 

to have dilutive potential. In short, no divisible alternative 
can be made. In the instant case, however, several similar, if 
not identical, positions are sprinkled throughout a relevant 
geographic area, presenting the likely potential for vote 
dilution. 
The concurring opinion reaches the tenuous conclusion that 
Congress intended Section 2 to prohibit the discriminatory 
dilution of minority voting strength when minorities are 
attempting to elect appellate court judges, but that Section 2(b) 
can never reach the at-large elections of trial judges-- 
regardless of whether one or one hundred judges are elected from 
the same district--because the latter officials decide 
controversies independently. There is no support for this 
contention in the words of the Act, in the legislative history of 
Section 2, nor in logic for this result-oriented contrivance. 

- 21 

 



  

offices....[T]here is no such thing as a "share" of a 
single-member office. 

Butts, 779 F.2d at 148. The concurring opinion rests squarely-- 

and solely--on this brief passage from Butts; examination of the 

particular facts in Butts, however, reveals that this passage 

provides absolutely no support for the concurrence. 

In Butts, the voting district consisted of a municipality. 

From this voting district, three positions were filled by 

election. The three positions were the offices of (1) mayor, 

(2) city council president, and (3) comptroller. Concluding that 

it is impossible to capture a "share" of a single member office, 

the Second Circuit held that the contested electoral law did not 

trigger a vote dilution analysis and therefore could not violate 

Section 2(b).18 The instant case, on the other hand, involves 
  

18 The Butts rule that a single-member office is not physically 
divisible has been implicitly rejected in Carrollton Branch of 
NAACP v. Stallings, 829 F.2d 1547 (11th Cir. 1987), cert. denied 
sub nom. Duncan v. Carrollton, 485 U.S. 936 (1988). In Stallings, 
plaintiffs challenged the one-person form of county commission 
government in Carroll County, Georgia, because it diluted 
minority voting strength and lessened the opportunity of black 
persons in the county to participate in the electoral process. 
This one-person system had been in effect since 1953. The 
Eleventh Circuit reversed the judgment in favor of the 
defendants, holding that the district court had applied the 
incorrect legal standard (in light of Gingles) by failing to give 
the proper weight to the two most important factors in a Section 
2 vote dilution claim: (1) the extent to which minorities had 
been elected, and (2) the existence of racially polarized voting. 
Jd. at. 1555. 
In its brief discussion of Stallings, the concurrence 
mischaracterizes the Eleventh Circuit’s analysis, implying that 
the reversal turned only on the presence of evidence indicating a 
discriminatory intent. In fact, the Eleventh Circuit devoted 
most of its discussion to an analysis of the "effects" test of 
Section 2 and Gingles, and to the district court’s findings as to 
whether the single-member scheme resulted in discriminatory vote 
dilution. The Eleventh Circuit reversed the district court’s 
judgment based both on its treatment of the plaintiffs’ 
constitutional challenge, and on its treatment of the Section 2 
challenge as well. 

  

  

- 22 - 

 



  

the election of multiple judges to virtually identical positions 

in one geographic area, with each judge exercising autonomy over 

his or her particular office. The concurrence incorrectly 

extends Butts’ reasoning to conclude that if minority groups are 

unable to elect their preferred candidate to these autonomous 

positions, the result is simply a consequence of the political 

process and not the result of vote dilution. 

Butts stands for nothing more than the unremarkable 

proposition that in certain electoral situations, there exists 

only one relevant office for the whole electorate. In Butts, one 

of the offices at issue was the position of mayor. The Second 

Circuit reasoned that unlike the electorate which selects 

candidates to fill the legislature, the electorate which selects 

a candidate to fill the mayoralty cannot be subdivided into 

districts. In holding that a mayoral election cannot be the 

basis of a vote dilution claim, Butts thus focuses on the 

electorate and whether the electorate can be subdivided; it does   

  

not focus on the official and whether the official or his office 

can be subdivided. 

On a cursory examination of the concurring opinion, its 

attempted expansion of the Butts rationale might seem plausible. 

This superficial plausibility, however, is what makes the 

concurring opinion so dangerous; it has the potential to seduce 

the unwary into an interpretation of the Voting Rights Act that 

would frighteningly limit the applicability of the Act. The 

concurrence'’s understanding of the "single officeholder 
  

- 33. 

 



  

exception" is seriously flawed, and must not be allowed to do 

further damage. 

In its broadest sense, the concurrence’s conception of the 

"single officeholder exception" states absolutely nothing. Every 

officeholder is a single officeholder; no position is shared by 

more than one person. Every officeholder exercises complete 

authority over the duties of his or her office. To say that a 

district judge in Texas exercises full responsibility over his 

office simply does not advance the analysis. Every state 

legislator exercises full responsibility over his or her office; 

in that respect the legislator is no different from a judge. 

Every county sheriff exercises full responsibility over his or 

her office; in that respect the county sheriff is no different 

from a judge. 

The problem with the concurrence’s single officeholder 

analysis is that it misdirects the focus of the inquiry. The 

question is not whether a judge can be subdivided, as the 

concurrence posits, but rather whether the judiciary can be 
  

subdivided, or more precisely, whether the electorate that 

selects the members of the judiciary can be fairly subdivided 

such that the votes of minority voters within the electorate are 

not submerged in a bloc of white votes. The focus must be on the 

electorate, and not on the individuals who are chosen by those 

voters. 

Nonetheless, in an unprecedented example of judicial 

creativity, the concurrence attempts to expand the Butts rule by 

authorizing an examination of a trial court judge’s role as a 

- 24 

 



  

sole decisionmaker.l9 Such an expansion flies in the face of 

congressional intent that the Act liberally apply to all forms of 

voting. The concurrence does not do justice to the spirit of the 

Voting Rights Act by attempting to expand Butts to a situation in 

which several virtually identical positions are elected by the 

same electorate to serve the same geographic area. 

Whether an office-holder wields his power in an individual 

or collegial manner is simply not the relevant inquiry. Butts, 

the case on which the concurrence hinges, was not based on a 

“collegial decisionmaking" rationale, nor was this concept even 

discussed. The Butts exception is premised simply on the number 

of officials being elected (one), the unique responsibilities of 

  

13 The concurrence heavily relies on its conclusion that the 
full authority of a trial judge’s office is exercised exclusively 
by one individual. This conclusion is at odds with the true 
structure of the judicial system in Texas. For example, 
administrative matters are handled through a collegial decision- 
making process by the district judges within the county. Such 
matters include the election of a local administrative judge, the 
appointment of staff and support personnel, the adoption of local 
rules of administration, the adoption of local rules and the 
exercise of supervisory authority over the clerk’s office. See 
Tex. Govt. Code Ann. § 74.091 et seg. (Vernon 1988). 
Furthermore, the judges, functioning together as a collegial 
body, are charged with the responsibility of selecting by 
majority vote a county auditor. Id. § 84.001 et seq. Moreover, 
the judges share authority over administration of the caseload. 
In Harris County, for example, fifty-nine district judges have 
overlapping authority to handle the heavy caseload of the 
district. Similarly, jury selection, case assignment, and record 
retention are handled on a county-wide basis. Furthermore, cases 
can be freely transferred between judges and any judge can work 
on any part of a case including preliminary matters. One 
district judge may, therefore, find his or her hands tied -- or 
greatly assisted -- by an earlier order imposed by another court 
located in the county. Tex. R. Civ. P. 330(h). In light of this 
overlapping authority and responsibility, it is incongruous to 
suggest that district court judges do in fact exercise "full" 
authority over the office. 

iB. 

 



  

that office, and the impediment to subdividing that single 

position so that minority voters have the opportunity to elect a 

"share." In the instant case, however, this Court is not 

concerned with the election of one single member position; 

rather, this Court is concerned with the election, within 

discrete geographic areas, of as many as fifty-nine judges with 

virtually identical functions. The instant case is unlike Butts; 

there is no physical impediment to elections from smaller 

representative areas. 

One court has already specifically addressed the problem 

with which we are faced. In Southern Christian Leadership 

Conference v. Siegelman, 714 F. Supp. 511 (M.D. Ala. 1989), the 

court rejected the application of Butts to the election of 

several trial judges from a single county. 20 

In effect, the at-large boundaries [in Butts] 
coincide with the only "district" boundaries possible; 
because there is only one position to be filled, it 
becomes impossible to split up the jurisdiction any 
smaller. The concept of vote dilution is effectively 
rendered meaningless and such offices are inappropriate 
for section 2 vote dilution challenges. There is no 
such rationale, however, for not applying section 2 to 
elected positions merely because "the full authority of 
that office is exercised exclusively by one 
individual," as the defendants would have this court 
do. 

Siegelman, 714 F. Supp. at 519-20 (footnotes omitted). 

  

20 The Siegelman court concluded, and I agree, that the 
courts in both Butts and United States v. Dallas County Comm’n, 
850 F.2d 1433 (11th Cir. 1988) implicitly utilized the term 
"single-member office" to refer "to a situation where under no 
circumstances will there ever be more than one such position in a 
particular geographic voting area." Siegelman, 714 F. Supp. at 
518. 

-0 

 



  

The approach in Siegelman is consistent with the Supreme 

Court’s analysis in Thornburg v. Gingles, 478 U.S. 30 (1986). In 

Gingles, the Supreme Court stated that a threshold inquiry in a 

claim that an at-large election system dilutes minority voting 

strength is whether there is evidence that the minority group is 

sufficiently large and geographically compact to constitute a 

majority in a single-member district. "The single-member 

district is generally the appropriate standard against which to 

measure minority group potential to elect because it is the 

smallest political unit from which representatives are elected." 

Gingles, 478 U.S. at 40 n.17. Proof of this geographically 

compact minority population essentially isolates the at-large 

electoral structure as the feature which has the potential to 

deny the minority fair electoral access. The maintenance of an 

at-large election scheme is not dilutive, however, where the 

electoral scheme in the relevant jurisdiction is indivisible 

because there is only one position to be for the particular 

jurisdiction. 

Applying this reasoning, I continue to urge the adoption of 

the Siegelman court's definition of single member office: 

The true hallmark of a single-member office is 
that only one position is being filled for an entire 
geographic area, and the jurisdiction can therefore be 
divided no smaller. While mayors and sheriffs do 
indeed "hold single-person offices in Alabama," they do 
s0 because there is only one such position for the 
entire geographic area in which they run for election. 
... It is irrelevant, in ascertaining the potential 
existence of vote-dilution, that these officials happen 
to exercise the full authority of their offices alone. 

Siegelman, 714 F. Supp. at 518 n.19 (emphasis original). 

-' 27% 

 



  

The Siegelman court is not alone in its approach to a claim 

of vote dilution. Several courts have found Section 2 violations 

in cases arising from similar factual situations. For example, 

in Clark v. Edwards, 725 F. Supp. 285 (M.D. La. 1988), the 

district court assumed that districts with more than one judicial 

position were properly characterized as multi-member districts. 

Similarly, in Haith v. Martin, the district court concluded that 

because North Carolina Superior Court judgeships are "designated 

seats in multi-member districts, ... they are subject to section 

5 preclearance requirements." 618 F. Supp. 410. Quoting the 

language of Section 2, the Haith court stated that "the Act 

applies to all voting without any limitation as to who, or what, 

is the object of the vote." Id. at 413. See also Martin v. 
  

Allain, 658 F. Supp. 1183 (S.D. Miss. 1987); Williams v. State 

Board of Elections, 696 F. Supp. 1563 (N.D. Ill. 1988). 

The concurrence, noting that Haith’'s focus was preclearance 

under Section 5 and not the merits of a vote dilution claim under 

Section 2, discounts this reference to the designation of trial 

judges as part of a multi-member body. Yet, even while urging 

that Haith is irrelevant to the instant case because it involves 

Section 5 preclearance, the concurrence notes that there is no 

reason to distinguish between Section 5 and Section 2 with 

"respect to their applicability to judicial elections." 

Concurring Opinion at 28. The concurrence’s conclusion is based 

on the realization that 

[t]o hold otherwise would lead to the incongruous 
result that if a jurisdiction had a discriminatory 
voting procedure in place with respect to judicial 

- 28 - 

 



  

elections it could not be challenged, but if the state 
sought to introduce that very procedure as a change 
from existing procedures, it would be subject to 
Section 5 preclearance and could not be implemented. 

Id. The concurrence, while clearly acknowledging the 

interlocking nature of Section 2 and Section 5, simply exempts 

from its reasoning those judges who are said not to act 

collegially; the concurrence’s logic is strained and internally 

inconsistent. 

A violation of the Voting Rights Act occurs where the 

challenged system effectively discourages equal participation in 

the electoral process and lessens the opportunity of minority 

voters to elect representatives of their choice. Where several 

officials, performing essentially the same job, are elected at- 

large from one geographic area, the potential for vote dilution 

is no less tangible simply because each official acts 

independently of the others. As the court in Siegelman stated, 

there exists "no rational reason why the concept of vote dilution 

cannot, or should not, apply to elected members of the judiciary 

simply because judges exercise their authority in solitude." 714 

F. Supp. at 520. 

The concurrence attempts to shore up its argument that there 

can be no dilution of votes for the district judge positions in 

the instant case by asserting that the independent nature of the 

trial judge is integral to the linking of jurisdiction and 

elective base. The concurrence argues that 

Texas has structured its government such that it 
wields judicial power at the trial level through trial 
judges acting separately, with a coterminous or linked 
electoral and jurisdictional base, each exercising the 

- 20 

 



  

sum of judicial power at that level, and all with 
review by courts acting collegially. We are persuaded 
that, because the fact and appearance of independence 
and fairness are so central to the judicial task, a 
state may structure its judicial offices to assure 
their presence when the means chosen are undeniably 
directly tailored to the objective. The choice of 
means by Texas here -- tying elective base and 
jurisdiction -- define the very manner by which Texas’ 
judicial services are delivered at the trial court 
level. They define the office. Nothing in the Voting 
Rights Act grants federal courts the power to tamper 
with these choices. 

Concurring Opinion at 31-32. Essentially, the concurrence argues 

that the union of elective base and jurisdiction defines the very 

nature of the Texas district judge position. Having posited the 

Texas office of district judge, the concurrence concludes that 

there is "compelling necessity sufficient to overcome the strict 

scrutiny of state acts impinging upon a fundamental interest." 

Id. at 32. The concurrence’s assertions, however, are contrary 

to the realities of the Texas system. Any modification in the 

elective base of a judicial district will not destroy the essence 

of the district judge position any more than have the persistent 

modifications in the jurisdiction of Texas district courts. It 

is inconceivable that the remedial imposition of a non-dilutive 

electoral scheme would have a more than negligible effect on the 

method by which judges exercise their authority. The concurrence 

cites no evidence--because there is none--that the very nature of 

the judicial office will be irreparably damaged by a modification 

in the elective base. In the absence of such evidence, it can 

hardly be said that the continued unmodified union of elective 

base and jurisdiction is a "compelling" state interest which 

militates against the application of the Voting Rights Act. 

- 30 = 

 



  

Undeterred by the obvious irrelevance of the acclaimed union 

between elective base and jurisdiction, the concurrence urges an 

additional state interest against the application of the Voting 

Rights Act--the appearance of judicial impartiality. The 

concurrence argues that the appearance of impartiality is a 

defining element of Texas’ district judgeships. Again, the 

concurrence’s attempts to manufacture a "compelling" state 

interest belie its desperation to achieve a result that would not 

require the displacement of the present electoral scheme. The 

fact that Texas currently elects judges from county-wide areas in 

order to promote the appearance of impartiality speaks to the 

state’s interest in retaining the current system; it does not 

speak to the very definition of the official post. The interest 

in retaining an appearance of impartiality is a factor which may 

be considered when, pursuant to Gingles, the totality of the 

circumstances are examined to determine if a Section 2 violation 

exists. However, this factor--the appearance of impartiality--is 

absolutely irrelevant to the preliminary question of the 

applicability of Section 2. 

The instant case reveals an electoral scheme which is 

"discriminatory but corrigible."2l Each county elects three to 

fifty-nine district court judges. In each county, all judges 

have the same authority and exercise the same responsibility. 

With the exception of specialty courts, all judgeships are 
  

21 while creating smaller districts exists as a potential means 
to remedy impermissible vote dilution, it is not an exclusive 
remedy. A legislature is at liberty to implement any electoral 
system which will alleviate vote dilution. 

- 31. 

 



  

essentially fungible; within each specialty, the judgeships are 

also fungible. Section 2 requires that once correctable vote 

dilution has been established, it must be eradicated by the 

implementation of a plan which will "completely remedy "22 the 

violation by "fully provid[ing an] equal opportunity for minority 

citizens to participate and to elect candidates of their choice." 

S. Rep. at 31. 

The State’s Interest in Retaining the Current System 
  

The defendants argue that elections for trial judges present 

strong state interests in retaining an at-large election system. 

Even if this contention has merit, the State’s asserted interests 

are relevant only to the inquiries of whether plaintiffs have 

proven a Section 2 violation under the totality of the 

circumstances and, if so, what remedy would be most appropriate 

to alleviate the dilution of minority voting strength, while 

intruding on state interests only to the extent necessary to 

accomplish the task. 

In Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en 

banc), aff'd sub nom. East Carroll Parish School Board v. 
  

Marshall, 424 U.S. 636 (1976) (per curiam), this Court set forth 

a non-exclusive list of factors to be examined when applying the 

totality of the circumstances test.23 In Gingles, the Supreme 
  

22 pjllard, 831 F.2d at 252. 

23 The factors include (1) the history of discrimination in 
the state; (2) the extent to which voting is polarized by race; 
(3) the existence of practices or procedures which enhance the 
opportunity for discrimination; (4) whether minority groups have 
been denied access to a candidate slating process; (5) the 
existence and extent of any socio-political vestiges of 
discrimination; (6) whether political races are characterized by 

i320 

 



  

Court reaffirmed the totality of the circumstances approach to a 

vote dilution claim. In doing so, the Supreme Court noted that 

the "factors were derived from the analytical framework of White 

v. Regester ... as refined and developed by the lower courts, in 

particular by the Fifth Circuit in Zimmer...." Gingles, 478 U.S. 

at 36 n.4 (citations omitted). The Supreme Court went further 

than the mere application of the totality test, however, and 

established a three-part foundation for the proof of a Section 2 

vote dilution claim. The minority group must demonstrate first 

that it is sufficiently large and geographically compact to 

constitute a majority in a single-member district; second, that 

the minority is politically cohesive; third, that the majority 

votes sufficiently as a bloc to usually defeat the minority’s 

preferred candidate. Id. at 50-51.24 Once the plaintiffs have 

satisfied these three threshold requirements, as they did here, 

the district court proceeds to the totality of the circumstances 

inquiry. 

The concurrence in the instant case, however, totally 

ignores the plaintiffs’ successful compliance with the Gingles 

three-part foundation showing. It is by this ruse that the 

  

overt or covert racial appeals; and (7) the extent to which 
minority groups have been elected in the jurisdiction. In 
addition, the legislative history of the Act instructs that an 
inquiry into the responsiveness of the elected officials to 
minority needs and the legitimacy of the state’s asserted reasons 
for maintaining the existing system may provide additional 
insight. 

24 Unless these threshold Gingles factors are established, "the 
use of multimember districts generally will not impede the 
ability of minority voters to elect representatives of their 
choice." Gingles, 478 U.S. at 48. 

“33 = 

 



  

concurrence never reaches the federal district court’s treatment 

of the vote dilution factors based on its per se exclusion of at- 

large elections for trial judges from the scope of Section 

2(b).25 It must now be apparent that the concurrence’s 

fundamental basis for denying minority groups the opportunity to 

challenge their exclusion from the process of judicial self- 

government is simply that the concurrence finds the concept of 

subdistricting unappealing as a proposed remedy. The only 

legitimate point at which to weigh this factor, however, is at 

the proof and remedy stages, when the countervailing factors of 

voting discrimination, as initially determined by the district 

court -- including, in particular, the plaintiffs’ inability to 

  

25 In holding that the current at-large scheme for electing 
Texas district court judges violates Section 2, the federal 
district court made numerous specific factual findings regarding 
the Gingles threshold factors as well as the Senate Report, or 
Zimmer, factors. For purposes of this dissent, it need not be 
decided whether the district court correctly determined these 
factual issues. It should be noted and flagged at this point, 
however, that the trial record is replete with evidence of an 
inescapable reality: minorities in the challenged Texas 
districts are seldom ever--indeed, are only with great rarity-- 
able to elect minority candidates to any of the at-large district 
court judge positions available in the districts. 
It is necessary to indicate that this writer would not affirm the 
interim remedial portion of the district court’s order in toto. 
Specifically, I am constrained to conclude that the district 
court acted beyond the scope of its remedial powers by ordering 
that judicial elections be nonpartisan. The district court’s 
order fails to defer to a political choice of the State of Texas, 
a choice which was not even challenged by the plaintiffs in the 
instant case. The distict court gave no explanation for 
rejecting the system of partisan elections. No evidentiary 
hearing was held on the issue, and no factual findings were made. 
The equity powers of the distict court neither encompass nor 
justify the federal district court’s actions; the district court 
should have deferred to the State’s policy choice for partisan 
elections as expressed in its statutory scheme. 

- 34 - 

 



  

elect their preferred candidates -- may be fully taken into 

balance. 

Similarly, the State’s interest in retaining an at-large 

election scheme is a factor to be weighed by a court applying the 

totality test only after the existence of the threshold Gingles 

factors has been determined.2®6 In the instant case, the State 

has not articulated so compelling an interest in retaining the 

existing electoral scheme that the dilution of minority votes 

should go unremedied.27 

When assessing the point at which a state’s articulated 

interest in retaining the current at-large scheme should be 

considered, the Supreme Court’s acknowledgment that the Senate 

factors are secondary considerations, behind the three-part 

Gingles test, is of particular relevance.28 Specifically, the 
  

26 The current administration endorses this approach. In an 
amicus brief filed in the instant case, the United States has 
argued that 
the proper approach is to consider, first, whether plaintiffs 
have met the three-part test outlined in Gingles. Assuming that 
this has been done, it is then appropriate to consider other 
factors set out in Gingles, and to weigh in particular the 
importance of the state’s interest in the electoral system under 
attack. 

United States Brief at 13. 

27 No opinion is expressed whether such a situation may 
ever be demonstrated. 

28 The concurrence, by treating considerations such as the 
appearance of impartiality and venue rules as definitive elements 
of the relevant elected post, has avoided the need to analyze at 
what point a state’s asserted interest in retaining the existing 
scheme should be considered. As has already been discussed in 
footnote 16, these considerations are not part and parcel of the 
trial judge post. 
What the concurrence has done, instead of examining the State's 
interest in retaining the existing scheme, is to consider the 
State's interest in not implementing a voting scheme similar to 

  

- 35 - 

 



  

Supreme Court noted that, while the Senate Report factors "may be 

relevant to a claim of vote dilution through submergence in 

multimember districts, unless there is a conjunction of the 

[three threshold factors], the use of multimember districts 

generally will not impede the ability of minority voters to elect 

representatives of their choice." Gingles, 478 U.S. at 48. From 

this language, it is beyond dispute that the Supreme Court has 

articulated a legal test for vote dilution claims which 

anticipates a threshold showing only of geographical compactness, 

political cohesion, and white bloc voting sufficient usually to 

prevent election of the minority’s preferred candidate.29 

The conclusion that a state’s interest is properly 

considered in the second phase of the Gingles analysis is 

bolstered by the Senate Report’s indication that the list "of 

typical factors is neither comprehensive nor exclusive. While 

the enumerated factors will often be pertinent to certain types 

of § 2 violations, particularly to vote dilution claims, other 

factors may also be relevant and may be considered." Id. at 45 

(footnote omitted). The Report stresses that no particular 

factors need be proved and neither the existence nor the non- 

  

that imposed under the interim plan (subdistricting) in order to 
alleviate any potential vote dilution. This approach positions 
the remedy squarely in a place of incorrect prominence and 
foregoes any serious inquiry into the existence of impermissible 
vote dilution. Stated simply, the concurrence has placed the 
cart before the horse. 

By articulating a threshold test which examines three 
characteristics of the minority group and its voting patterns, 
the Supreme Court has implicitly stressed the proposition that 
the Voting Rights Act is primarily concerned with the efficacy of 
the minority vote and not with the function or characteristics of 
the elected post. 

- 36 

 



  

existence of a majority of factors dictate the outcome. Rather, 

the determination of whether the political processes are equally 

open depends on an evaluation of the relevant political process. 

It is during this examination of minority access to the relevant 

jurisdiction’s political process that a state’s interest in 

retaining the existing system is particularly relevant. 

Congress most certainly did not intend to frustrate the 

important state interest in a fair and impartial judiciary; at 

the same time, however, Congress expressed the affirmative intent 

to replace unlawfully dilutive electoral systems with ones in 

which minorities would have a full and fair opportunity to 

participate. In enacting Section 2(b) of the Voting Rights Act 

in 1982, it is clear that Congress was continuing the struggle to 

make the Act responsive to the needs and aspirations of the 

nation--to make absolutely certain that the fundamental right of 

minorities to cast an effective vote for candidates of their 

choice was not abridged. 

For these reasons, it is imperative that a court first 

proceed to determine whether the Gingles three-part test has been 

met; only then should a court proceed to consider, under the 

"totality of the circumstances," other relevant factors, 30 
  

30 For example, one of the two "[a]dditional factors that in 
some cases have had probative value" in the Senate Report's 
illustrative list of totality of the circumstances factors is 
"whether the policy underlying the state or political 
subdivision’s use of such voting qualification, prerequisite to 
voting, or standard, practice or procedure is tenuous." S. Rep. 
No. 417, 97th Cong., 2d Sess. 29, reprinted in 1982 U.S. Code 
Cong. & Admin. News 177, 207. In the proceedings below, the 
district court considered this factor at the appropriate point -- 
during a trial on the merits. The district court was not 
persuaded by defendants’ defense that at-large elections served a 

“37 t 

 



  

including the state interest in maintaining an at-large election 

system, to determine whether, on balance, the plaintiffs have 

proved a Section 2 violation.3l 

In the instant case, the State asserts the following 

interests as justification for retaining its dilutive electoral 

system: (1) ensuring popular accountability by making judges’ 

jurisdiction coterminous with the electoral boundaries; (2) 

avoiding bias caused by small electoral districts; and (3) 

preserving the administrative advantages of at-large elections, 

including the use of specialized courts. The concurrence would 

not only accept the existence of these interests, but would 

characterize them as compelling. 

  

critical state interest. The court determined that "[w]hile the 
Court does not find that the present system is maintained on a 
tenuous basis as a pretext for discrimination, the Court is not 
persuaded that the reasons offered for its continuation are 
compelling." District Court Opinion at 77. 

31 Because of my view that the State has not articulated a 
substantial interest in retaining the existing at-large system of 
electing district judges, the question of how much weight this 
factor should be afforded is not addressed. As the Supreme Court 
has indicated, "recognizing that some Senate Report factors are 
more important to multimember district vote dilution claims than 
others ... effectuates the intent of Congress." Gingles, 478 
U.S. at 49 n.1l5. It is my firm belief, however, that under no 
circumstances should the State’s interest outweigh the following 
factors: the extent to which minority group members have been 
elected to office in the jurisdiction and the extent to which 
voting in the elections of the jurisdiction has been racially 
polarized. This belief is based on my acknowledgement of the 
Supreme Court’s indication that "[u]nder a ‘functional’ view of 
the political process mandated by § 2 ... the most important 
Senate Report factors bearing on § 2 challenges to multimember 
districts are [these factors.]" Id. Additionally, placing 
greater weight on the factors which examine minority success at 
the polls and racial voting patterns furthers the purpose of the 
Act to "correct an active history of discrimination ...[and] deal 
with the accumulation of discrimination." S. Rep. at 5. 

-i 38 & 

 



  

Accountability: The State has advanced the argument that 
  

at-large elections provide greater accountability of the judge to 

county voters. The Chief Justice of the Texas Supreme Court 

testified that judges are "accountable to those people who can be 

hailed [sic] into their court," because people who feel they have 

been wronged by a particular judge may vote against that judge in 

the next election. Ostensibly, the district court’s interim plan 

eliminates effective accountability. The concurrence notes that 

under the district court’s interim plan, for example, a minority 

litigant has "a 98.3% chance of appearing before a judge in whose 

election he had not been able to vote." Concurring Opinion at 

44. 

The concurrence’s argument that judges must be "accountable" 

to potential litigants is an affront to the judiciary of the 

State of Texas. An honorable judiciary separated from the 

influence of others is "indispensable to justice in our society." 

Canon 1 of the Texas Code of Judicial Conduct (emphasis added). 

District judges are charged to apply the law, not respond to the 

expectations of litigants. To say that a district judge must be 

accountable to litigants is to suggest the unthinkable of great 

numbers of highly respected, dedicated public servants. Not only 

is such a suggestion misleading to a public already mystified by 

the bench and bar, it is offensive to those who have occupied 

distinguished positions as Texas state district judges in the 

past, as well as those who now occupy such positions. 

Even if "accountability" were a legitimate state interest, 

it is not a compelling reason to justify the current dilutive 

- 39 iw 

 



  

system. Under the existing system, it is highly probable that a 

case will be heard outside the county in which a litigant lives. 

In such a case, at least one--and probably both--of the parties 

will be appearing before a judge who was elected by a population 

which does not include that litigant. The argument that judges 

must remain "accountable" to potential litigants in their courts 

(nauseous as this straw man specter may be) pales in light of the 

current Texas venue rules, which frequently require that an out 

of county resident appear before a judge for whom the litigant 

neither cast a vote for nor against. Even further, in Texas, 

parties can agree to give a district court venue over a case not 

arising in the county. Nipper v. U-Haul Co., 516 S.W.2d 467 

(Tex. Civ. App.--Beaumont 1974, no writ). 

The concurrence argues that Texas’ elaborate system of venue 

rules supports the argument that the State has demonstrated a 

concern for inter-county bias. However, any interest in ensuring 

accountability and the appearance of impartiality which may be 

suggested by the Texas venue scheme is lessened considerably by 

Texas’ characterization of venue challenges as dilatory pleas 

which, if not raised initially, are waived. In light of such a 

practice, the state interest cannot be said to be compelling. 

Aside from the complexities of the Texas venue rules, there 

are many other occasions when a party may appear before a judge 

elected by the residents of another county. For example, 

district court judges are frequently called into other counties 

to help with docket control. Despite the fact that the county’s 

residents have no recourse against this out-of-county judge at 

al Oe 

 



  

the ballot box, Texas courts have upheld the constitutionality of 

this practice. See, e.qg., Reed v. State, 500 S.W.2d 137 (Tex. 
  

Crim. App. 1973). Nor is the practice of electing judges from 

subdistricts without precedent in the state. Texas Justice of 

the Peace courts, lower level trial courts with jurisdiction over 

an entire county, are elected from sub-county precincts.32 Thus, 

a litigant often may appear before a justice of the peace who 

lives in the same county as the litigant, but not the same 

judicial district. 

Additionally, Texas authorizes the use of retired or senior 

state district judges, who wield all the powers of their elected 

and active peers. Such a judge was, of course, at one time 

elected to that office. Upon retirement, however, that judge 

while sitting is vested with the complete authority of the office 

and is not subject to election or reelection. Simply stated, 

Texas’ retired or senior judges contribute greatly to the 

reduction of court dockets, but they are no longer accountable in 

any fashion to the electorate. See Tex. Gov't Code Ann. §§ 

75.001 - .002 (Vernon 1988). 

  

32 In Martin v. Allain, 658 F. Supp. 1183, 1195-96 (S.D. 
Miss. 1987), the court adopted a single-member district remedy 
for some Mississippi trial judges who were elected at-large in 
racially dilutive elections, after finding that Mississippi 
already elected some other judges from areas smaller than the 
court’s jurisdiction. The court there stated: 

Although the state has adopted the policy of the post 
system of electing judges in multi-member judicial districts 
above the justice court level, it long ago adopted the 
policy of single-member electoral districts for justice 
court judges. The state also has the policy of judges 
deciding cases which may originate outside their election 
districts. 

“41 

 



  

There seems to be no basis in fact for the State’s 

contention that county-wide accountability is essential to the 

proper selection of district judges, or that any measure of 

electoral accountability is significantly defeated by dividing 

the county into smaller electoral districts. 

A Fair and Impartial Judiciary: Both the State and 
  

intervenors put on witnesses who testified that the creation of 

subdistricts was inadvisable because it could lead to perceptions 

of judicial bias and undue influence by special interests. 

Specifically, the witnesses testified that judges elected from 

smaller districts would be more susceptible to undue influence by 

organized crime or to pressure by other political sources 

including special interest groups. 

The concurrence accepts this argument, and urges in addition 

that subdistricting "would change the structure of the government 

because it would change the nature of the decision-making body 

and diminish the appearance if not the fact of judicial 

independence. "33 Concurring Opinion at 44. The concern that a 

judge elected from a small electorate is more susceptible to 

improper pressure, however, has not prevented or impeded Texas 

from creating judgeships in counties with relatively small 

  

33 once again, the concurrence’s asserted concern is premised on 
the anticipated remedy -- subdistricting. While the Supreme 
Court, in Gingles, did indicate that a "single-member district is 
generally the appropriate standard against which to measure 
minority group potential to elect," it did not mandate the 
imposition of subdistricts to remedy every instance of illegal 
vote dilution. The concurrence, by erroneously factoring in, at 
the liability phase, concerns which may never be borne out, 
refuses to properly acknowledge the intent of the Voting Rights 
Act. 

- 47 

 



  

populations. Texas has 386 district judges. A significant 

number of these judges are elected from districts of less than 

100,000 people; indeed, in some districts, as few as 24,000 to 

50,000 people constitute the relevant electorate. Even if Harris 

County (with a population of 2.5 million people) were divided 

into as many as fifty-nine subdistricts (the number of district 

courts of general and special jurisdiction), each district would 

contain approximately 41,000 people. If Dallas County were 

divided into thirty-seven subdistricts, each subdistrict would 

have approximately 42,000 people. In short, even if judicial 

districts in large counties were subdivided, the resulting 

subdistricts are unlikely to be smaller than many existing 

judicial districts in Texas. Consequently, the ostensible state 

interest against a small electorate in judicial districts has not 

been shown. 

Furthermore, Texas law does not reflect the witnesses’ fear 

that subcounty districts are inconsistent with the existence of a 

fair and impartial judiciary. Justices of the Peace are already 

elected from areas smaller than a county; in a very extended 

number of counties, these districts contain smaller populations 

than the hypothetical subdistricts of Dallas and Harris counties 

discussed above. For example, the Texas Constitution permits 

counties with as few as 18,000 people to be divided into four 

justice of the peace precincts. Tex. Const. art. 5, § 18(a). 

The foregoing is sufficient to demonstrate the state has no 

compelling interest in retaining county-wide elections. Even if 

it were not, it is plainly dispositive that the Texas 

-.43 

 



  

Constitution was recently amended to give voters the option of 

electing district judges from subdistricts. See Tex. Const. art. 

5, § 7a(i). That no county has yet to implement such an elective 

scheme does not alter the reality that such a change already has 

the blessing of the state legislature. In light of this 

constitutionally authorized electoral scheme, the State cannot 

now say that it has a compelling interest in not electing 

district judges from an area smaller than a county. 

Considering the precedent for the creation of judicial 

subdistricts, the size of the potential subdistricts, and the 

lack of any real indication that perceived impropriety would 

result, 34 the state’s asserted interests do not support the 

continuation of its present dilutive electoral system. 

Administrative Advantages: The State has cited the 
  

administrative advantages of the present system, including the 

county-wide retention of records, the random assignment of cases 

to judges within the county and county-wide jury empaneling. 

There is no reason why an electoral scheme utilizing subdistricts 

cannot retain each and every one of these administrative 

features; any remedy which might be imposed in this case need not 

require that a judge elected from a subcounty area have 

jurisdiction only over that area. In fact, the interim plan 

fashioned by the district court in the instant case specifically 

retained all of the foregoing valid administrative features. 
  

34 1t is also notable that one judge, an intervenor in the 
instant case, testified that he was not aware of any allegations 
of unfairness or suggestions that white litigants were not 
treated fairly by minority judges elected from subcounty Justice 
of the Peace precincts. 

- 44 = 

 



  

Furthermore, even if retention of certain administrative 

conveniences were not possible under a remedial scheme, that fact 

cannot justify the continuation of an otherwise racially dilutive 

electoral process. See Westwego Citizens for Better Gov't wv. 

Westwego, 872 F.2d 1201 (5th Cir. 1989). 

The concurring opinion attempts to place great weight on the 

interest of the State in retaining the system of "specialty" 

courts. But there is absolutely no reason why a remedy would be 

unable to accommodate this interest by retaining these courts of 

specialized jurisdiction.33 Most counties which utilize the 

administrative convenience of specialty courts have several of 

each court; consequently, a remedy could be formulated which 

retains the use of such courts.3® It cannot be gainsaid that the 

State has almost unlimited flexibility to devise a remedial plan 

which retains specialty courts and all of the other important 

government interests while eradicating the dilution of minority 

voting strength. It is critical that it be understood that the 

history, the intent, the text and spirit of the Voting Rights Act 

in general and Section 2 in particular mandates the 

implementation of just such a remedial electoral scheme. 

  

35 It should be noted that the Texas Constitution limits the 
State’s interest in establishing specialty courts; the state 
supreme court has ruled that the legislature may not disturb 
state courts’ jurisdiction. 

Because the district court, in its interim plan, indicated 
the belief that a remedy could be created which allows the 
substantial use of the Texas system of specialty courts, District 
Court Order at 7, this writing expresses no view on whether or 
not a state's interest would be substantially stronger if such a 
remedy could not be devised. 

- 48 wu 

 



  

Summary: Taken together, the State’s attempt to articulate 
  

its interest in retaining the current voting system pales when 

compared to the clear purpose of the Voting Rights Act. The 

State has not shown an inalterable policy of not subdividing 

districts, nor has it shown that judges would be less accountable 

to the electorate if elected from a subdistrict. Further, there 

is no indication that any impropriety, real or perceived, on the 

part of judges elected from smaller units would in fact occur. 

Finally, while the State may indeed have a legitimate interest in 

retaining specialty courts, the State has failed to demonstrate 

why that interest cannot be effectuated in an electoral scheme 

which does not dilute minority voting strength. 

TIX. 

CONCLUSION 

"The Voting Rights Act was designed by Congress to banish 

the blight of racial discrimination in voting, which has infected 

the electoral process in parts of our country for nearly a 

century. "37 It is my most earnest conviction that the majority 

and concurrence have each chosen erroneous methods to examine the 

particular specimen of vote dilution asserted by the plaintiffs 

and found by the district court here. The true method that both 

have missed has been obscured by their failure to recognize the 

true meaning of the Voting Rights Act, and by their failure to 

comply with the strictures of Gingles. The majority, abandoning 

established precedent, has determined that Section 2 of the 

  

37south Carolina v. Katzenbach, 383 U.S. 301, 308, 86 S. Ct. 803, 
808, 15 L. Ed. 2d 769 (1966). 

- 40 - 

 



4 » 

  

Voting Rights Act does not apply to any judicial elections. The 

concurrence has looked to the function of the elected official, 

and the duties and powers of the official once in office, to 

conclude that, because trial judges act independently, at-large 

elections cannot result in minority vote dilution. There is 

simply no support in the words of the Act, in the legislative 

history of Section 2, nor in logic for either the majority or the 

concurrence’s embrace of such result-oriented determinations. 

The position of each Administration has been that the 

Voting Rights Act applies to judicial elections. The current 

Administration goes even further and strongly urges that Section 

2(b) was violated by the electoral scheme that was utilized here 

to elect certain Texas district court judges. 

The Voting Rights Act is in no way concerned with the 

names or positions listed on the ballot. The United States 

Congress, by enacting the Voting Rights Act, has instructed that 

this and every other court focus on the voter, particularly the 

minority voter, and the efficacy of each vote cast, so as to 

ensure that minorities are not denied an equal opportunity to 

participate effectively in the democratic process. 

I respectfully dissent. 

“il