Houston Lawyers' Association v. Attorney General of Texas Brief for Petitioner
Public Court Documents
January 1, 1990
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Brief Collection, LDF Court Filings. Houston Lawyers' Association v. Attorney General of Texas Brief for Petitioner, 1990. 8d609985-b89a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/ef2d2568-370c-4ac4-b6f8-2bdb1ee3905f/houston-lawyers-association-v-attorney-general-of-texas-brief-for-petitioner. Accessed July 02, 2025.
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No. 90-813
In T h e
Supreme Court of tfje tBnitetr states
Oc t o b e r T e r m , 1990
Houston Lawyers’ Association, et a l ,
Petitioners,
v.
Attorney General of Texas, et a l ,
Respondents.
On Writ of Certiorari to the United States
Court of Appeals for the Fifth Circuit
BRIEF FOR PETITIONERS
Of Counsel:
Matthews & Branscomb
A Professional Corporation
*Counsel of Record
Julius LeVonne Chambers
“Charles Stephen Ralston
Sherrilyn A. Ifill
99 Hudson Street
Sixteenth Floor
New York, N.Y. 10013
(212) 219-1900
Gabrielle K. McDonald
301 Congress Avenue
Suite 2050
Austin, Texas 78701
(512) 320-5055
Attorneys for Petitioners
PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203
Q u e s t io n P r e s e n t e d
Can the election of trial judges be challenged under § 2
of the Voting Rights Act of 1965, as amended, 42 U.S.C. §
1973?
11
P arties
The participants in the proceedings below were:
League of United Latin American Citizens (LULAC)
Local Council 4434, LULAC Local Council 4451, LULAC
(Statewide), Christina Moreno, Aquilla Watson, Joan Ervin,
Matthew W. Plummer, Sr. Jom Conley, Volma Overton,
Willard Pen Conat, Gene Collins, A1 Price, Theodore M.
Hogrobrooks, Ernest M. Deckard, Judge Mary Ellen Hicks,
Rev. James Thomas, Plaintiffs;
The Houston Lawyers’ Association, Weldon Berry,
Alice Bonner, Rev. William Lawson, Bennie McGinty,
Deloyd Parker, Francis Williams, Plaintff-Intervenors;
Jesse Oliver, Fred Tinsley and Joan Winn White,
Plaint ff-Intervenors;
The Attorney General of the State of Texas, George
Bayoud, Secretary of State of Texas, Thomas R. Phillips,
Mike McCormick, Ron Chapman, Thomas J. Stovall, James
F. Clawson, John Comyn, Robert Blackmon, Sam B.
Paxson, Weldon Kirk, Jeff Ealker, Ray D. Anderson, Joe
Ill
Spurlock II, and Leonard E. Davis, in their capacity as
members of the Texas Judicial Districts Board, Defendants;
Judge Sharolyn Wood and Judge Harold Entz,
Defendant-lntervenors.
IV
Table of Co ntents
Q u e s t io n P r e s e n t e d .......................................... .. . i
P a r t ie s ................................. ii
T a b l e o f A u t h o r it ie s .................................... . . vii
O p in io n s B e l o w ............. 1
Ju r is d ic t io n .............................. 2
St a t u t o r y P r o v is io n s In v o l v e d .................... 2
Statement of the Case ........................ 4
Introduction .............................................................. 4
The Challenged Electoral Structure ....................... 6
The Findings of the District Court ...................... 8
The District Court’s Interim R em edy................. 16
The Case on Appeal ................... 17
Su m m a r y o f t h e A r g u m e n t . ....................... 19
Argument................ 21
I. T he Election of Judges is Covered by
§2 of the Voting Rights Act of 1965,
AS AMENDED............................ 21
II. Judge Higginbotham’s Concurrence
Does Not Provide an Alternative Basis
V
for Affirming the Decision of the
Court Be l o w .............................................. 24
A. The Concurrence’s Focus on the
Post-Election Functions Performed
By Judges Is Fundamentally
Misplaced ......................... .. 26
B. Section 2 Forbids the Creation of Per
Se Rules Exempting Voting Practices
from Scrutiny Under the Totality of
the Circumstances T e s t................. 30
1. Co n g r e s s E x p r e s s l y
Disapproved of the Use of Per
Se Rules in § 2 Cases . . . 31
2. The Particular Per Se
Exemptions Proposed by the
Concurrence Are Especially
M eritless............................ 33
a. The Concurrence
Improperly Invoked the
So-Called "Single-
Me mb e r Of f i ce
Exception" ........... 34
b. The Concurrence’s
Reliance on the
C o n g r u e n c e of
E l e c t o r a l a n d
Jurisdiction Bases Is
M isplaced.............. 37
C. Texas Treats the Election of District
Judges Like All Other Elections . . 40
D. A State’s Interest in Particular
Electoral Features Cannot Insulate
Those Features from §2 Review . 45
E. The District Court Properly Found
that the Interests Advanced by the
State Are Not Compelling........... 49
VI
F. Section 2 Provides States with the
Opportunity at the Remedy Stage to
Devise Election Methods that Protect
their Legitimate Interests . . . . . . 56
C o n c l u s io n 62
V ll
T able of Auth o rities
Cases: Page:
Allen v. State Board of Elections, 393 U.S. 544 (1969) 35
Board of Estimate v. Morris, 109 S.Ct. 1433 (1989) . 36
Bridges v. California, 314 U.S. 252 (1941)................. 43
Buchanan v. City of Jackson, 683 F. Supp. 1537 (W.D.
Tenn. 1988)....................................................... ............. 35
Butts v. City of New York, 779 F.2d 141 (2d Cir. 1985),
cert, denied, 478 U.S. 1021 (1986)................... . 33, 36
Campos v. City of Baytown, 840 F.2d 1240 (5th Cir. 1988),
cert, denied, 109 S. Ct. 3213 (1989)................................ 40
Chisom v. Edwards, 839 F.2d 1056 (1988), cert, denied,
488 U.S. 955 (1988) ................................. .. 18, 21
Cintron v. Romero-Barcelo, 671 F.2d 1 (1st Cir. 1982) 59
City of Carrollton Branch of the NAACP v. Stallings, 829
F.2d 1547 (11th Cir. 1987), cert, denied, 485 U.S.936
(1988) ...............................................................................35
City of Mobile v. Bolden, 446 U.S. 55 (1980)........... 38
City of Port Arthur v. United States, 459 U.S. 159 (1983)6
Cox v. Katz, 294 N.Y.S. 2d 544 (1968).......................... 52
Dillard v. Chilton County Bd. of Educ., 699 F.Supp. 870
(M.D. Ala. 1988), summarily aff’d, 868 F.2d. 1274
(1989) .............................................................................. 59
Dillard v. Crenshaw County, 649 F. Supp. 289 (M.D. Ala.
1986) , aff’d in part and remanded, 831 F.2d 246 (11th Cir.
1987) , on remand, 679 F. Supp. 1546 (M.D. Ala. 1988)35
V lll
Dillard v. Town of Cuba, 708 F.Supp. 1244 (M.D. Ala.
1988) ................................. ............................................... 59
Gingles v. Edmisten, 590 F. Supp. 345 (E.D. N.C. 1984),
aff’d, 478 U.S. 30 (1986)......................... 56
Graves v. Barnes, 343 F.Supp. 704 (W.D. Tex. 1972), aff’d
in relevant part, rev’d in part on other grounds, sub nom.,
White v. Regester, 412 U.S. 755 (1973), on remand, 378
F.Supp. 640 (1974) ............................................ . 12, 40
Elechingerv. Martin, 411 F.Supp. 650 (D.D.C. 1976), aff’d
per curiam, 429 U.S. 1030 (1977) ...................... .. 60
Holhouser v. Scott, 335 F.Supp. 928 (M.D.N.C. 1971),
aff’d mem., 409 U.S. 807 (1 972 )................ 41, 52
Holland v. Illinois, 110 S.Ct. 803 (1990) . . . . . . . . . 28
Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60
(1978) . .................................. .. 39
Jones v. Lubbock, 727 F.2d 364 (5th Cir. 1984) . . . . 40
Landmark Communications v. Commonwealth of Virginia,
435 U.S. 829 (1978) .............. .. .................................... 43
Lassiter v. Northampton, 360 U.S. 45 (1959) . . . . . . 46
LULAC v. Clements, 914 F.2d 620 (5th Cir. 1990) passim
LULAC v. Midland ISD, 812 F.2d 1494 (5th Cir. 1987),
vacated on other grounds, 829 F.2d 546 (5th Cir. 1987)40
Martin v. Mabus, 700 F.Supp. 327 (S.D.Miss. 1988) . 57
Page:
McDaniel v. Sanchez, 452 U.S. 130 (1981)................. 57
Mexican American Bar Association v. Texas, No. 90-CA-
171 (W.D. Tex) December 26, 1990 ............................ 13
XX
Nipper v. U-Haul, 516 S.W.2d 467 (Tex. Civ. App.
Page:
1974)........................................................................... .. . 53
Oregon v. Mitchell, 400 U.S. 112 (1970).................... 46
Orloski v. Davis, 564 F.Supp. 526 (M.D. Pa. 1983) . 59
PUSH v. Allain, 674 F. Supp. 1245 (N.D. Miss. 1987) 46
Reed v. State of Texas, 500 S.W.2d 137 (Tex. Crim. App.
1973) ................................................................................. 53
Ross v. State, 233 S.W. 2d 126, 131 (Ct of Crim. Appeals
1950)................................................................................. 13
Smith v. Allwright, 321 U.S. 649 (1944) . . . 13, 43, 47
Southern Christian Leadership Conference v. Siegelman, 714
F. Supp. 511 (M.D. Ala. 1989).................................... 37
State Board of Elections v. Brooks, 112 L.Ed. 2d 243
(1990) ...............................................................................3 6
Thornburg v. Gingles, 478 U.S. 30 (1986) . . . . passim
United States v. Dallas County, 850 F.2d 1430 (11th Cir.
1988)................................................................................. 37
United States v. Marengo County Commission, 731 F.2d
1546 (11th Cir.), cert, denied, 469 U.S. 976 (1984) . . 48
United States v. Texas Education Agency, 564 F.2d 162 (5th
Cir. 1977), reh’g denied, 579 F.2d 910 (1978), cert, denied,
443 U.S. 915 (1979) 12
White v. Weiser, 412 U.S. 783 (1973) 47, 57
X
Article 5, §7(a)(i), Texas Constitution of 1876, as
am ended......................................................................7, 54
Rule 52(a), F. Rules of Civ. Proc. ..................................50
Tex. Elec. Code §172.024 ............................................. 43
Voting Rights Act of 1965 as amended, § 2, 42 U.S.C. §
1973 ........................................................................... passim
Voting Rights Act of 1965 as amended, § 5, 42 U.S.C. §
1973c ........................................................... 13, 35, 36, 40
Voting Rights Act of 1965, § 14(c)(1), 42 U.S.C. §
1973/(c)(l) ................................................................ 3, 22
Statutes: Page:
Other Authorities:
"s60 Minutes’ Examines Controversy Over Donations to
Judges," Houston Post, Dec. 7, 1987 ......................... 44
"Texas Judicial System Annual Report," Texas Judicial
Council, Office of Court Administration, December 1989 5
"Texas Minority Judges," Office of Court Administration,
Texas Judicial Council, January 31, 1 9 9 1 ...................... 6
Champagne, "The Selection and Retention of Judges in
Texas," 40 Southwestern Law Journal 53 (1986) . . . . 43
D. Adamany, P. Dubois, "Electing State Judges," Wisconsin
Law Review 731 (1976) ............................................... 41
Extension of the Voting Rights Act: Hearings Before the
Subcomm. on Civil and Constitutional Rights of the House
Comm, on the Judiciary, 97th Cong., 1st Sess. (1981) 45
XI
Hall, "The Judiciary on Trial: State Constitutional Reform
and the Rise of an Elected Judiciary, 1846-1860," 45
Historian 337 (May 1983) ............................................ 42
House Report No. 97-227, 9th Cong., 1st Sess.,
(1982) ...................................................................... 41, 48
Hurst, The Growth o f American Law (1950) ........... .. 42
Issacharoff, "The Texas Judiciary and the Voting Rights Act:
Background and Options," December 4, 1989 ........... 59
J. Hill, "Taking Texas Judges Out of Politics: An Argument
for Merit Selection." 40 Baylor L. R. 339 (1989) . 42-44
Johnson, "Simple Justice," Background Report to House
Committee on the Judiciary, Texas House of
Representatives, November 1990 ...................... 5, 44, 51
Karlan, "Maps and Misreadings: The Role of Geographic
Compactness in Racial Vote Dilution Litigation," 24 Harv.
C.R.-C.L.L.Rev. 173 (1989).............................. .. . 8, 58
Karlan, Undoing the Right Thing: Single-Member Offices
and the Voting Rights Act, 77 Va. L. Rev. 1 (1991)29, 37
Senate Report No. 97-417, 97th Cong.,
2nd Sess. (1982).....................................................passim
Voting Rights Act: Hearings on S.53, S. 1761, S.1992 and
H.R. 3112 Before the Subcomm. on the Constitution of the
Sen. Comm, on the Judiciary, 97th Cong., 2d Sess.
(1982) ...................................................................... 13, 38
Page:
Woodbury, "Is Texas Justice for Sale?," Time, January 11,
1988 ................................................................................ 44
No. 90-813
In T h e
Supreme Court of tije Umteb H>tate£
October Term , 1990
Houston Lawyers’ Association, etal.,
Petitioners,
v.
Attorney General of Texas, et al.,
Respondents.
On Writ of Certiorari to the United States
Court of Appeals for the Fifth Circuit
BRIEF FOR PETITIONERS
Opinio ns Belo w
The opinion of the Fifth Circuit is reported at 914 F.2d
620 as LULAC v. Clements, and is set out at pp. la-182a of the
appendix to the Petition for a Writ of Certiorari (hereinafter "Pet.
App."). The opinion of the United States District Court for the
Western District of Texas is not reported and is set out at Pet.
App. pp. 183a-304a, except for statistical tables that are an
appendix to the district court’s opinion. Copies of those tables
have been filed under separate cover with the Clerk of the Court
2
as a Supplemental Appendix to the Petition for Certiorari
(hereinafter "Supp. Pet. App."). Two subsequent orders of the
district court, both unreported, are set out in the Joint Appendix
(hereinafter "J.A.") at pp. 158a and 180a.
Jurisdictio n
The decision of the Fifth Circuit was entered on September
28, 1990. The petition for certiorari was filed on November 21,
1990. On January 18, 1991, this Court granted the petition for
certiorari and consolidated this case with No. 90-974, LULAC v.
Attorney General o f Texas. Jurisdiction of this Court is invoked
under 28 U.S.C. § 1254(1).
Statutory Pro visio ns Invo lved
This case involves § 2 of the Voting Rights Act of 1965,
as amended, 42 U.S.C. § 1973, which provides that:
(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.
3
(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 subdivison are not equally open
to participation by members of a class of citizens
protected by subdivision (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.
This case also involves § 14(c)(1) of the Voting Rights Act
of 1965, 42 U.S.C. § 1973/(c)(l), which provides, in pertinent
part, that:
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 . . . casting a ballot and having such
ballot counted properly with respect to candidates
for public or party office and propositions for
which votes are received in an election.
4
Statem ent of the Case
Introduction
This case involves a challenge to the at-large method of
electing district judges in nine counties in the State of Texas.1
The petitioners are African American voters, many of whom are
members of the Houston Lawyers’ Association (HLA) (hereinafter
"HLA petitioners"). The HLA petitioners intervened in this
lawsuit, originally filed by the League of United Latin American
Citzens (hereinafter "LULAC petitioners"), alleging that several
features of the existing electoral scheme — in particular, at-large,
numbered post elections — deny them an equal opportunity to
participate in the election of district judges in Harris County
(Houston) in violation of §2 of the Voting Rights Act, as
amended.
Harris County is the largest and most populous county in
the State of Texas, encompassing 1,734 square miles. The
County has a 1990 Census population of over 2.8 million. The
‘The counties at issue are: Harris, Dallas, Tarrant, Bexar, Travis,
Jefferson, Lubbock, Ector and Midland. In each of the counties
challenged, more than one district judge is elected to serve the
countywide district. Eight of the nine judicial districts challenged by
plaintiff-petitioners are coextensive with one county. The remaining
district is comprised of two counties. Pet. App. at 95a.
5
City of Houston, Harris County’s major urban center, is the
largest city in Texas geographically and by population. The
enormous size of the Harris County judicial district is evident
when it is compared to West Texas’ District 39 — the smallest
judicial district in the state. Harris County is more than 20,000%
larger than the District 39.2 Harris County elects 59 of Texas’
386 district judges, more district judges than any other county in
the state.3
Although the population of Harris County is nearly 20%
African American,4 and African American candidates have run in
17 contested district judge general elections in the County since
1980, only 2 of the African American candidates have won. Pet.
2Johnson, "Simple Justice," Background Report to House Committee
on the Judiciary, Texas House of Representatives, November 1990.
3Although most district courts exercise both criminal and civil
jurisdiction, in metropolitan areas such as Harris County, pursuant to
both legislative action and informal arrangements made within the county,
the district courts are organized into four specialized areas: civil trial
courts, criminal trial courts, juvenile courts and family law courts. See
"Texas Judicial System Annual Report," Texas Judicial Council, Office
of Court Administration, December 1987 at 10; Deposition Summary of
Ray Hardy, Trial Transcript Volume 4, Page 254 (references to the trial
transcript are hereinafter cited as "TR. a t __-__."). In Harris County,
there are 25 civil district courts. TR. at 4-254. No African American
has ever been elected to a civil district trial seat in Harris County. TR.
at 3-207.
*The voting age population of Harris County was 18% African
American according to both 1980 and 1990 census figures. Texas does
not keep voter registration figures by race.
6
App. at 279a. Currently, only three of Harris County’s 59
district judges (5% of the total) are African Americans.5 "Texas
Minority Judges," Office of Court Administration, Texas Judicial
Council.
The HLA petitioners specifically alleged that alternative
electoral schemes using electoral sub-districts or modified at-large
structures6 could remedy the denial of minority voters’ rights in
district judge elections in Harris County. J.A. at 20a.
The Challenged Electoral Structure
Under a 1985 amendment to the Texas Constitution,
electoral districts for district judges must consist of one or more
Hliese figures are reflected on the statewide level, as well. Although
African Americans constitute 12% of Texas’ population, they constituted
only 2% of the state’s district judges (7 of 375) in 1989 (currently 9 of
386). "Texas Minority Judges," Office of Court Administration, Texas
Judicial Council, January 31, 1991. In July 1988 when this lawsuit was
filed, no African Americans were appellate court judges anywhere in the
state of Texas. In fact, between 1980 and 1990, only 1 African
American served as an appellate court judge in Texas. During the same
time period, only 8 African Americans served as district judges
statewide. Id.
'These alternative electoral schemes included limited voting and
cumulative voting, both of which are discussed infra at 57-60.
7
whole counties.7 See Article 5, §7(a)(i), Texas Constitution of
1876, as amended. District judges in Texas have statewide
jurisdiction, but sit in the countywide or multi-county district from
which they are elected. Candidates for district judge must reside
in the county or multi-county district for two years in order to run
for office. See 1990 Candidates’ Guide to Primary and General
Elections, Office of the Secretary of State of Texas.
Each candidate for district judge runs for a designated
numerical seat within the county or multi-county district, for
example, "375th district court." Elections for district judges in
Texas are held in even-numbered years at the same time as
primary, run-off and general elections for state legislative and
municipal offices. Terms are staggered, and district judges serve
for four years. District judge candidates, and indeed all judges in
Texas, are nominated through party primaries. If no district
judge candidate wins a majority in the party primary, then the two
top voter-getters must compete in a run-off primary. In the
general election, each judicial candidate’s political party is
7The same amendment provides that districts smaller than a county
may be created if approved by a countywide referendum. Yet neither the
Constitution nor Texas statute creates any procedure for holding such a
referendum. No countywide referendum has ever been held in
accordance with this provision.
8
indicated on the ballot.
District judges in Texas are elected from multimember at-
large districts8 within a winner-take-all9 election system. Both the
multimember and winner-take-all features of Texas’ district judge
election system were challenged by the HLA petitioners in this
action. J.A. at 8a-23a.
The Findings o f the District Court
Following a one week trial, the district court made
extensive findings of fact and conclusions of law supporting the
minority voters’ claims of vote dilution in each of the nine
targeted counties. Following the standard for determining the
existence of vote dilution set by this Court in Thornburg v.
Gingles, 478 U.S. 30 (1986), the district court found that in
Harris County: (1) the African American population is
sufficiently numerous and geographically compact to constitute a
8A s the district court noted, "this system is ‘at-large’ because judges
are elected from the entire county rather than from geographic
subdistricts within the county." Pet. App. at 190a n.3.
hn a winner-take-all system "a bare political majority (fifty percent
+ 1) of the electorate can elect all representatives and totally shut out a
minority." Karlan, "Maps and Misreadings: The Role of Geographic
Compactness in Racial Vote Dilution Litigation," 24 Harv. C.R.-
C.L.L.Rev. 173, 222 (1989). The remaining 49 % of the population may
be excluded from electing any candidates of choice.
9
majority in a number of fairly drawn sub-districts;10 (2) the
African American commmunity is politically cohesive; and (3)
white voters vote sufficiently as a bloc so as usually to defeat the
candidate of choice of minority voters, absent special
circumstances. Pet. App. at 220a-221a.
In addition, the district court made specific findings
concerning the list of objective factors (hereinafter "Senate
Factors") that Congress identified as relevant to determining the
existence of vote dilution.11 Senate Report No. 97-417, 97th
‘“Plaintiffs demonstrated, in fact, that African Americans could
constitute a majority in at least nine judicial electoral sub-districts. Pet.
App. at 201a.
“These typical objective factors include:
1. the extent of any history of official discrimination in the
state or political subdivision that touched the right of the
members of the minority group to register, to vote, or
otherwise to participate in the democratic process;
2. the extent to which voting in the elections of the state
or political subdivision is racially polarized;
3. the extent to which the state or political subdivision has
used unusually large election districts, majority vote
requirements, anti-single shot provisions, or other voting
practices or procedures that may enhance the opportunity
for discrimination against the minority group;
4. if there is a candidate slating process, whether the
members of the minority group have been denied access to
that process;
5. the extent to which members of the minority group in
the state or political subdivision bear the effects of
discrimination in such areas as education, employment and
health, which hinder their ability to participate effectively
10
Cong., 2nd Sess. (1982) (hereinafter "S. Rep. at __").
Recognizing that among the Senate Report factors the
existence of racially polarized voting and the extent to which
minorities have been elected to office in the challenged
jurisdiction are most significant, Gingles, 478 U.S. at 45 n.15,
the district court made particularly extensive findings regarding
these two factors.
The district court’s findings with regard to racially
polarized voting were based on the dramatic results of the experts’
analyses. In the 17 elections analyzed by the plaintiffs’ expert,
in the political process;
6. whether political campaigns have been characterized by
overt or subtle racial appeals;
7. the extent to which members of the minority group
have been elected to public office in the jurisdiction.
Additional factors that in some cases have had probative value as
part of plaintiffs evidence to establish a violation are:
whether there is a significant lack of responsiveness
on the part of elected officials to the particularized
needs of the members of the the minority group.
whether the policy underlying the state or political
subdivision’s use of such voting qualification,
prerequisite to voting, or standard, practice or
procedure is tenuous.
S. Rep. at 28-29.
11
Dr. Richard Engstrom,12 and the 23 elections analyzed by the
defendants’ expert, Dr. Delbert Taebel, African Americans and
whites voted differently in every election. Pet. App. at 224a.
While African Americans consistently gave more than 97% of
their vote to African American candidates in the 17 judicial
elections analyzed by Dr. Engstrom, whites never gave even a
bare majority of their votes to an African American candidate.
Id. at 215a.
Even straight ticket party voting and candidate incumbency
failed to gamer significant white votes for African American
judicial candidates. One example of the virtual refusal of white
voters to support African American judicial candidates in Harris
County is particularly telling. In 1986, 19 Democratic incumbent
judges ran for re-election. All 16 white Democratic incumbents
were re-elected. All three African American Democratic
incumbents lost.13 TR. at 3-164.
Overall, Dr. Engstrom testified that, since 1980, 52% of
12Dr. Engstrom’s work on quantitative analyses was cited with
approval by this Court in Gingles, 478 U.S. at 53 n.20.
13These 19 Democratic incumbents shared campaign strategy and
tactics, posing for a group photograph which was mailed to voters
throughout the County as part of a collective party effort to retain judicial
seats held by Democrats. TR. at 3-209. Yet only the African American
incumbents lost their bids for re-election.
12
white Democratic candidates have won contested district judge
elections in Harris County, while only 12.5% of African
American Democratic judicial candidates have won. TR. at 3-
134-135.
The district court also found that of the 17 African
Americans who have run in contested district judge elections in
Harris County since 1980, only 2 have won. Pet. App. at 279a.
In fact, it was undisputed that no more than three African
Americans have ever served simultaneously as district judges in
Harris County. TR. at 3-207.
With regard to the remaining Senate Factors, the district
court made additional findings which supported the petitioners’
claims. The court noted the "well chronicled" and "undisputed"
history of discrimination in Texas, that touched upon the right of
minorities to vote and participate "in the democratic system
governing [the] State." Pet. App. at 274a. This history includes
discriminatory legislative reapportionment, Graves v. Barnes, 343
F.Supp. 704 (W.D. Tex. 1972), aff’d in relevant part, rev’d in
part on other grounds sub nom., White v. Regester, 412 U.S. 755
(1973), on remand, 378 F.Supp. 640 (1974), racial discrimination
in education, United States v. Texas Education Agency, 564 F.2d
162 (5th Cir. 1977), reh’g denied, 579 F.2d 910 (1978), cert.
13
denied, 443 U.S. 915 (1979), and the notorious refusal of the
Harris County Democratic party to permit African Americans to
vote in the party primary. Smith v. Allwright, 321 U.S. 649
(1944).14 The court’s findings were supported by the testimony of
lay witnesses who attested to the historical and continued presence
of racial discrimination in Texas. See TR. at 3-205, 217; 4-8,
16-17, 24-25.
Since 1975, Texas has been subject to the special
preclearance provisions of §5 of the Voting Rights Act of 1965.
Between 1975 and 1982, when the Act was last amended, the
Justice Department had made 130 objections to changes in voting
procedures submitted by the State of Texas, because it was unable
to conclude that the changes preferred would have neither a
discriminatory purpose nor a discriminatory effect on minority
voters.15 See Voting Rights Act: Hearings on S.53, S.1761,
14The historical existence of an all-white judiciary in Texas has also
been chronicled. See e.g., Ross v. State, 233 S.W. 2d 126, 131 (Tex.
Crim. App. 1950) ("[a]ll judges since the days of Reconstruction, as
well as Justices of the Peace, and also Legislators, have been white
persons”).
15Since that time, the Attorney General has repeatedly objected to
other voting changes in Texas, including the addition of 15 district
judgeships in 1990, on the grounds that the method of electing district
judges in the counties at issue violates §2. See Letter of John Dunne,
Pet. App. at 305a-308a. A three-judge court later ruled that the
objection of the Justice Department was not timely filed, and as such,
the additional judgeships were automatically precleared within sixty days
of Texas’ submission. Mexican American Bar Association v. Texas, No.
14
S.1992 and H.R. 3112 Before the Subcomm. on the Constitution
o f the Sen. Comm, on the Judiciary, 97th Cong., 2d Sess. 1783
(1982) (hereinafter "1982 Hearings").
The district court further found that the legacy of racial
discrimination in Texas continues to affect adversely the
socioeconomic status of minorities in Texas. Pet. App. at 275a.
This finding was supported by census data indicating a marked
disparity in the education and median income levels of African
American and white Texans. Plaintiffs’ Exhibit H-08.
The district court found that Harris County uses an
unusually large election district for district judge elections.
Indeed, the court found that the unusually large size of Harris
County "further enhancefs] the problems that minority candidates
face when they seek office." Pet. App. at 276a. This conclusion
was supported by defendant Thomas Phillips, Chief Justice of the
Supreme Court of Texas, who testified that it is more difficult for
minority lawyers to raise the funds necessary to mount a
successful campaign for district judge in large urban areas such as
Harris County. TR. at 5-84.
The district court also found that the requirement that
90-CA-171 (W.D. Tex Dec. 26, 1990).
15
district judge candidates run for a specific numbered judicial seat
within the county is equivalent to a numbered post system, which
prevents the use of bullet, or single-shot16 voting. Pet. App. at
275a-276a, 276a n.31. The requirement that a candidate for
district judge win a majority of the votes cast to win the party
primary also enhances the opportunity for discrimination against
minorities.17 Pet. App. at 276a.
Finally, while the district court did not find that the
current at-large system of electing district judges is intentionally
discriminatory, it was "not persuaded that the reasons offered for
its continuation are compelling." Pet. App. at 283a.
Considering the "totality of the circumstances,"18 the
16" Single-shot voting enables a minority group to win some at-large
seats if it concentrates its vote behind a limited number of candidates and
if the vote of the majority is divided among a number of candidates."
Gingles, 478 U.S. at 38 n.5 (citation omitted).
17In the Senate Report, Congress specifically identified the use of
majority vote requirements, numbered posts and unusually large electoral
districts as devices that "may enhance the opportunity for discrimination
against the minority group." S.Rep. at 29.
18Plaintiff-petitioners made no claims as to Senate Factor 4 — the
existence of a discriminatory candidate slating process in Harris County.
As to Senate Factor 6, the court found that racial appeals were used in
at least one district judge race in Texas. TR. at 278a. The court made
no specific findings on the use of racial appeals in Harris County.
Although an additional factor sometimes probative to the plaintiffs’
showing of vote dilution, ”[u]nresponsiveness is not an essential part of
plaintiffs’ case," S. Rep. at 29 n.116, and therefore was not put in issue
by the plaintiff-petitioners.
16
district court concluded that under the challenged electoral
scheme, "[pjlain tiffs do not have an equal opportunity to
participate in the political processes and to elect candidates of
their choice" in district judge elections. Pet. App. at 290a-291a.
The district court made no findings about the appropriate
remedy for the proven violation, but urged the state legislature,
then in special session, to select and approve an alternative district
judge election scheme. Pet. App. at 303a. The district court also
announced that it would entertain motions to enjoin future state
district judge elections "pending the Remedy Phase of this
litigation," should the legislature fail to adopt an alternative
election system. Id.
The District Court’s Interim Remedy
On January 2, 1990, following the state legislature’s failure
to include the issue of judicial redistricting on its special session
agenda, the district court entered an order setting out an interim
remedy to be used solely for the 1990 election of district judges
in the nine counties. J.A. at 158a. This remedy incorporated, in
large part, elements of a remedial settlement agreement entered
into by the petitioners and the state defendants following the
17
district court’s determination of liability.
In the remedial settlement agreement, the state defendants
agreed to the creation of electoral sub-districts for district judges.
The district court’s interim remedy adopted the sub-district
election scheme agreed upon by the state defendants and the
petitioners, but abolished the use of party identification in district
judge elections.19 J.A. at 158a-179a. Defendant-intervenors from
Harris County, Texas, filed an interlocutory appeal from the
district court’s liability order and a stay of the district court’s
interim remedial order. The state defendants also appealed the
district court’s liability order and the part of the interim remedial
order that prohibited the use of partisan elections for district
judges. The state defendants did not appeal that part of the
remedial order that required the creation of sub-county electoral
districts. The interlocutory appeal and stay were granted by the
Fifth Circuit on January 11, 1990.
The Case on Appeal
Oral argument was heard before a panel of the Fifth
‘Petitioners never challenged the partisan nature of the district judge
election system in any of the nine counties.
18
Circuit in LULAC on April 30, 1990. Eleven days after oral
argument, the panel reversed the district court opinion in LULAC
on the ground that the election of trial judges is not covered by
§2 of the Voting Rights Act, as amended. The panel decision
addressed none of the underlying facts or findings of vote dilution
reached by the district court.
Sua sponte, the Fifth Circuit ordered rehearing en banc in
LULAC. Oral argument was heard on June 19, 1990. On
September 28, 1990, the Fifth Circuit, again without reference to
the merits of the case, reversed the district court’s ruling in
LULAC by a 12-1 majority. By a 7-6 majority, the Fifth Circuit
also overruled its prior decision in Chisom v. Edwards, 839 F.2d
1056, cert, denied, 488 U.S. 955 (1988), and held that the
"results" test for vote dilution in §2 of the Voting Rights Act, as
amended, does not apply to the election of judges, "for the
cardinal reason that judges need not be elected at all." LULAC v.
Clements, 914 F.2d 620, 622 (5th Cir. 1990). Four judges, in an
opinion authored by Judge Patrick Higginbotham, adhered to the
position taken by the panel that, while appellate judges are
covered by § 2, trial judges are not. Judge Sam Johnson, the
author of the original panel opinion in Chisom, dissented.
19
On November 21, 1990, the Houston Lawyers’
Association, et al., filed a petition for a writ of certiorari with
this Court. The League of United Latin American Citizens, et
al., filed a petition for certiorari on December 14, 1990. Both
petitions were granted and consolidated for review by this Court
on January 18, 1991.
Sum m ary of the Arg um ent
Section 2 of the Voting Rights Act covers all elections,
including elections for judges. Congress neither expressly nor
impliedly carved out an exemption from the Act for elected
judges. So long as a state chooses to select its judiciary through
popular election, it must conduct those elections in accordance
with the Act’s prohibition against minority vote dilution.
The LULAC concurrence’s view that trial judge elections
are exempt from §2 coverage is at odds with Congress’ and this
Court’s instructions for determining liability under §2 of the
Voting Rights Act. Both Congress and this Court have mandated
20
that courts reviewing claims under §2 engage in a local "fact-
specific" appraisal of the result of the challenged structure on
minority voting strength in the particular jurisdiction. A
formalistic approach to assessing a vote dilution claim is expressly
prohibited.
A fact-specific analysis necessarily precludes the creation
of per se rules exempting particular elected offices from vote
dilution claims and precludes courts from elevating any one
particular factor to threshold or controlling status.
Furthermore, the state’s interests in using particular
electoral structures cannot pretermit a §2 analysis. Indeed, the
state’s interests in retaining particular features of a dilutive
electoral structure are entitled to little weight at the liability stage
of a §2 proceeding. At the remedy stage, however, the state’s
interests in maintaining particular non-dilutive features of a
discriminatory election structure are properly weighed and
accommodated. Remedial concerns are not an appropriate basis
for denying §2 coverage as a threshold matter.
21
Arg um ent
I. Th e Election of J udges is Covered by §2 of
the Voting R ights Act of 1965, as amended.
Reversing its decision in Chisom v. Edwards, 839 F.2d
1056, cert, denied, 488 U.S. 955 (1988), that judicial elections
are covered by §2 of the Voting Rights Act, the court below held
that Congress, in amending the Act in 1982, sought expressly to
exclude the election of judges. According to the majority,
Congress’ provision in §2(b) that the Act is violated when
minority voters have less opportunity "to elect representatives of
their choice," (emphasis added), is dispositive of Congress’ intent
to exclude elected judges from §2 coverage. In the majority’s
view, the use of the word "representatives" necessarily and
deliberately excludes the election of judges.
The Brief of the Petitioners in Chisom v. Roemer, No. 90-
757, (hereinafter "Chisom Brief a t__"), documents in exhaustive
detail Congress’ intent to include all elected offices under the
purview of the Voting Rights Act.
First, the Chisom petitioners’ analysis demonstrates that
the express language of the statute indues the election of judges.
22
Chisom Brief at 17-29. In particular, § 14(c)(1) of the Act defines
"voting" under the Act as
"all action necessary to make a vote effective in
any primary, special or general election, including,
but not limited to . . . casting a ballot and having
such ballot counted properly with respect to
candidates for public or party office and
propositions for which votes are received in an
election.
42 U.S. C. §1973/(c)(l) (emphasis added). Moreover, the co
terminous relationship between §2 and §5 of the Act further
supports the proposition that elected judges are covered under §2.
In the legislative history, Congress explicitly indicated that §2 and
§5 must work in tandem. The Attorney General, the official
responsible for interpreting and administering §5 of the Act, has
consistently applied §5 to judicial elections. This court recently
affirmed that §5 of the Act covers judicial elections. State Board
o f Elections v. Brooks, lllS .C t. 288 (1990). See also, Martin v.
Haith, A ll U.S. 901 (1986). Chisom Brief at 29-32.
In the legislative history of the Act, Congress clearly
expressed its intention to include all elections, including the
election of judges, when both enacting and amending the Act.
Indeed, Congress was aware of the role played by the elected
southern judiciary in furthering the establishiment of state-
23
sponsored racial discrimination and in undermining the full and
effective enfranchisement of African Americans. Chisom Brief at
32-43.
Contrary to the Fifth Circuit’s interpretation, the use of the
word "representatives" in §2(b) of the 1982 amendments to the
Act created neither an express nor an implied exemption from §2
scrutiny for elected judges. Chisom Brief at 41-42.
Finally, the fact that the one-person, one-vote rule does
not apply to judicial districts is irrelevant to the application of the
Voting Rights Act to the election of judges. Chisom Brief at 43-
49.
The HLA petitioners incorporate by reference the analysis
and arguments advanced by the Chisom petitioners in support of
these points.
In the remainder of this brief, the HLA petitioners focus
on an issue not expressly addressed by the petitioners in Chisom
— the application of the Voting Rights Act to trial judges.
Although the arguments relating to the language and structure of
the Act and its legislative history apply equally to all judicial
elections, additional issues were raised in the Fifth Circuit’s
concurring opinion, authored by Judge Patrick Higginbotham,
concerning coverage of trial judges under the Act, which we
24
discuss herein.
n . Judge Higginbotham’s Concurrence Does Not
Provide an Alternative Basis for Affirming the
Decision of the Court Below
The concurring opinion written by Judge Higginbotham
and joined by Judges Politz, King, and Davis (and with respect to
its analysis of § 2’s applicability to trial judges, by Judge Wiener
as well), acknowledges that the language, structure, and legislative
history of the Voting Rights Act compel the conclusion that § 2
covers judicial elections. See Pet. App. at 51a~90a
(Higginbotham, J,, concurring). But it claims that Texas’ scheme
for electing judges is not subject to attack under § 2 because
Texas has "structure[d] 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," Pet. App. at
91a (Higginbotham, J., concurring). The concurrence essentially
maintains that the functional exclusion of African Americans from
the electoral process of choosing Harris County’s judges is
25
irrelevant as a matter of law.20
The concurrence is critically mistaken in four separate
respects. First, it wrongly focuses on the post-election function
of Texas trial judges rather than the fairness of the electoral
process. Second, it improperly creates per se rules immunizing
electoral practices from scrutiny under § 2. Third, it erroneously
treats the state’s purported interests in maintaining the present
system as a threshold question of § 2 coverage, rather than as
only one, relatively minor, aspect of the totality of the
circumstances test mandated by Congress. Finally, it imports into
the liability inquiry an issue more appropriately addressed at the
remedy stage: the extent to which the full remedy required by
§ 2 can also accommodate the state’s legitimate concerns. In light
of these serious defects, the concurrence’s analysis cannot serve
as an alternative basis for affirming the judgment of the court of
appeals.
“indeed, the concurrence never discusses any of the evidence
regarding the racial dilution that results from the present system of
electing trial judges in Harris County.
26
A. The Concurrence’s Focus on the Post-Election
Functions Performed By Judges Is Fundamentally
Misplaced
The crux of the concurrence’s argument focuses on how
Texas trial judges act after the electoral process is over. Each
judge, according to the concurrence, "acts alone" in deciding the
cases assigned to him or her. Pet. App. at 104a (Higginbotham,
J., concurring). The concurrence reasons backwards from this
rather artificial view of the duties Texas trial judges perform after
they have been elected to office21 to conclude that "[tjhere can be
no dilution of votes for a single judge because each judge holds
a complete judicial office." Id. at 93a.
The concurrence explains its conclusion by pointing out
that "[sjubdistricting [that is, electing Harris County’ judges from
smaller geographical districts within the county] would not create
an equal opportunity for representation in decision-making. . . .
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." Id. at
21Trial judges in fact perform a number of functions jointly. They
collectively elect various officials, such as the local administrative judge
and the county auditor, Pet. App. at 149a (Johnson, J., dissenting), and
they can even share in the adjudication of a single case, when different
judges decide different preliminary matters, Id.
27
104a-105a. Thus, the concurrence continues, if Harris County’s
trial bench were to be elected from districts, minority litigants
"have an 84.75% chance of appearing before a judge who has
little direct political interest in being responsive to minority
concerns." Id. at 107a. In short, the concurrence seems to be
suggesting that African Americans are not really being injured by
the present system because there is no alternative that would treat
them any better.
That suggestion completely misses the point of this lawsuit.
Petitioners’ claim does not derive from their status as actual or
potential litigants in Harris County’s courts. Nor are they
complaining about the results of judicial decisionmaking in any
particular case. Rather, petitioners’ claim stems from their status
as registered voters who are seeking the right to participate
equally in the process of electing judges. They are not seeking
the opportunity to appear before judges politically beholden to
them.22 Thus, the decisionmaking process on which this Court
“ indeed, the concurrence’s reasoning that Harris County’s African
American voters would be worse off under a districting scheme because
they would have little chance either of appearing in front of a judge
dependent on their political support or of having a judge "accountable]
to minorities" deciding cases important to the African American
community, Pet. App. at 107a, n. 13 (Higginbotham, J., concurring),
is contrary to reason. Under the present system, of course, the African
American community has no judges dependent on its support or
accountable to it.
28
should focus is not judicial decisionmaking in individual cases,
but electoral decisionmaking about who should sit on the bench.23
Cf., e.g., Holland v. Illinois, 110 S.Ct. 803, 812 (1990)
(Kennedy, J., concurring) (explaining that a white defendant
should be entitled to challenge the prosecution’s use of its
peremptory challenges to strike African American jurors, not
because the defendant had been denied his rights as a litigant but
because the potential jurors had been denied the right to
participate equally in civic life).
That African Americans currently are shut out of Harris
County’s electoral process cannot be denied. Again and again,
their preferred candidates have been defeated by white bloc
voting. Regardless of whether African American litigants have an
equal opportunity to have their cases heard in the courtroom,
African American voters are entitled to an equal opportunity to
have their voices heard in the voting booth. African Americans
in Harris County are being denied this opportunity.
aIn some cases, elected officials’ post-election functions may be
relevant to a plaintiffs § 2 claim. If, for example, one of the elements
of the plaintiffs’ case was an allegation of unresponsiveness, see S. Rep.
at 29 & n. 116, then the court might appropriately consider decisions
rendered by the elected officials in the course of their duties.
In this case, petitioners did not raise the issue of the responsiveness
of Harris County’s elected judges to African American concerns.
Accordingly, no inquiry into the court’s post-election functioning is
appropriate.
29
The concurrence concedes, as it must, that "[b]efore any
suits are filed, before any cases are assigned, there is a group of
judges with concurrent jurisdiction." Pet. App. at 102a
(Higginbotham, J., concurring). Whatever singularity Harris
County’s judges possess, (which, as explained below, is a legally
irrelevant event), it attaches only after they have taken office.
The mere use of numbered posts in the election process no more
turns judicial elections into elections for single-member offices
than the use of numbered posts for legislative offices could turn
those offices into single-member ones. See Karlan, Undoing the
Right Thing: Single-Member Offices and the Voting Rights Act,
77 Va. L. Rev. 1, 18 (1991).
The bankruptcy of the concurrence’s post-election function-
driven analysis is powerfully illustrated by its complete inability
to suggest a single way in which the day-to-day activities of
judges would be affected by a change in the electoral system.
Even if judges were selected by sub-districts they could obviously
retain the power collectively to establish rules governing the
"assignment, docketing, transfer, and hearing of all cases" within
a county, Pet. App. at 97a (Higginbotham, J., concurring)
(quoting Texas Gov’t Code § 74.094(b)); obviously, each judge
could also continue to preside over his or her assigned cases.
30
Moreover, as discussed fully below, sub-districting is only one
of the remedial alternatives prayed for in the petitioners’
complaint. Sub-districting should not function as a liability
benchmark.
In sum, the fact that Harris County’s 59 judges do not act
in constant collaboration with one another is irrelevant to the
central question of this case: whether Harris County can elect
those judges in a way that denies its African American citizens
the ability to participate effectively in the electoral process.
B. Section 2 Forbids the Creation of Per Se Rules
Exempting Voting Practices from Scrutiny Under the
Totality o f the Circumstances Test
There is irony in the concurrence’s fixation on the
"function" performed by Texas trial judges after they are elected.
E.g., Pet. App. at 102a (Higginbotham, J., concurring). While
the concurrence spends a great deal of time talking about post
election judicial functions, it completely ignores Congress’
directive to take a "functional" view of the political process in
asking whether minority votes enjoy an equal opportunity to
participate and elect their chosen candidates. S. Rep. at 30 n.
120; see Gingles, 478 U.S. at 45.
The concurrence claims that, as a matter of law, § 2 can
31
not reach a challenge to the methods used to elect trial judges.
"There can be no dilution of votes," it asserts, in situations in
which officials are elected to fill separate offices. Pet. App. at
93a (Higginbotham, J., concurring). Moreover, it suggests
multimember electoral districts are not subject to challenge when
a state links "jurisdiction and elective base." Id. at 112a. The
underpinnings of the concurrence’s analysis are fatally flawed.
1. Congress Expressly Disapproved of the Use of Per
Se Rules in § 2 Cases
Section 2 expressly provides that courts faced with
challenges to electoral practices examine "the totality of
circumstances," 42 U.S.C. § 1973(b), to determine whether
minority voters have an effective opportunity to participate in the
political process and to elect their preferred candidates. Congress
rejected any "formalistic" approach, in favor of a "functional"
one. S. Rep. at 30 n. 120. As this Court explained in Gingles,
both the language and legislative history of amended § 2 require
the trial court
to consider the totality of the circumstances and to
determine, based upon a searching practical evaluation of
the past and present reality, whether the political process
is equally open to minority voters. This determination is
peculiarly dependent upon the facts of each case, and
requires an intensely local appraisal of the design and
32
impact of the contested electoral mechanisms.
478 U.S. at 79 (internal quotation marks and citations omitted).
The Senate Report’s "flexible, fact-intensive test for § 2
violations," id. at 46, is completely antithetical to the rigid,
juridically derived, theory-driven rules advanced by the
concurrence in this case.
Just as "electoral devices. . . may not be considered per se
violative of § 2," Gingles, 478 U.S. at 46, so, too, they cannot
be considered per se lawful, without any consideration of the way
in which they effectively freeze African Americans out of the
electoral process. Indeed, to suggest that any one factor standing
alone can dispose of a § 2 claim would advance precisely the kind
of "mechanical" analysis that was expressly rejected in the Senate
Report. S. Rep. at 29 n. 118.
The categorical, formalistic nature of the concurrence’s
approach is evident from its failure to mention a single factor
identified as relevant to a §2 inquiry by either the statute or the
Senate Report. The concurrence never touches upon the virtual
exclusion of African Americans from the Harris County judiciary
— a consideration expressly identified in the statute, 42 U.S.C. §
1973(b), highlighted in the Senate Report, S. Rep. at 30, and
deemed "most important" by this Court, Gingles, 478 U.S. at 48
33
n. 15. It never acknowledges the pervasive and profound racial
bloc voting in Harris County judicial elections that essentially
renders African American votes worthless. In short, it completely
ignores "past and present reality," Gingles, 478 U.S. at 79; S.
Rep. at 30, in favor of judicial policymaking.
2. The Particular Per Se Exemptions Proposed by the
Concurrence Are Especially Meritless
The concurrence identifies two structural features that it
asserts should exempt Texas’ scheme for electing trial judges from
scrutiny under §2. First, it claims that each trial judge occupies
a "single-member office," and thus, no claim of vote dilution can
be advanced. Pet. App. at 100a (Higginbotham, J., concurring)
(relying on Butts v. City of New York, 779 F.2d 141 (2d Cir.
1985), cert, denied, 478 U.S. 1021 (1986)). Second, it claims
that when a state chooses to make an office’s jurisdictional base
coterminous with its electoral base, no §2 challenge can be
brought. Pet. App. at 112a-114a (Higginbotham, J., concurring).
It is important to face the potential breadth of the
concurrence’s per se rules. Section 2 prohibits electoral practices
enacted or maintained for discriminatory purposes, as well as
those which happen to result in the denial of an equal opportunity
34
for minorities to participate and to elect their preferred candidates.
S. Rep. at 27. If the concurrence’s analysis is right, then a
state’s decision to set up its trial bench in a particular manner
specifically to ensure that African Americans have no say in the
process of electing judges would be immunized from attack under
§ 2. Similarly, if Texas had decided to use at-large elections
rather than elections from sub-districts precisely because this
would prevent African Americans from electing any judges, that,
too, would be immunized.
But that simply cannot be the law. Such attempts to
abridge the voting rights of African Americans would surely
violate the Fourteenth and Fifteenth Amendments. If that is the
case, then they must violate § 2 as well. Neither structural
feature identified by the concurrence can ultimately support the
creation of a sweeping exemption from § 2.
a. The Concurrence Improperly Invoked the So-Called
"Single-Member Office Exception"
The concurrence’s assertion of a single-member office
exception to §2 is completely meritless. First, as this Court
noted, §2 prohibits states from imposing "any standards,
practices, or procedures which result in the denial or abridgement
35
of the right to vote," Gingles, 478 U.S. at 43 (emphasis in
original); see 42 U.S.C. § 1973(a), without regard to the office to
which those mechanisms apply. Moreover, this Court has
expressly held that §5 of the Voting Rights Act covers single
member offices. In Allen v. State Board o f Elections, 393 U.S.
544 (1969), one of the challenged laws involved changes in the
method for selecting the county school superintendent in several
Mississippi counties. The Court recognized that a change in the
method of electing that single official might dilute the voting
strength of a county’s citizens. See also, e.g., City o f Carrollton
Branch o f the NAACP v. Stallings, 829 F.2d 1547 (11th Cir.
1987) (holding that plaintiffs could challenge the system used to
elect the single county commissioner), cert, denied, 485 U.S. 936
(1988); Buchanan v. City o f Jackson, 683 F. Supp. 1537, 1542
(W.D. Tenn. 1988) (finding liability in at-large election of three
city commissioners, each of whom ran for a numbered post as the
single official responsible for education, public works, or public
safety); Dillard v. Crenshaw County, 649 F. Supp. 289 (M.D.
Ala. 1986), aJjTd in part and remanded, 831 F.2d 246 (11th Cir.
1987), on remand, 679 F. Supp. 1546 (M.D. Ala. 1988)
(rejecting the adoption of a form of government containing a
single-person office as violative of §2). In short, § 2 contains no
36
"single-member office exception."
But even to the extent that certain vote dilution claims
cannot be remedied by sub-districting (for example, where there
is only one position in a particular jurisdiction), that limitation is
unavailing in this case. To suggest that each judge in Harris
County occupies a "single-member office" completely distorts any
reasonable meaning of that phrase. When the cases upon which
the concurrence relies discussed the applicability of § 2 to single
member offices, they were referring to offices that were unique
within their respective jurisdictions. There was only one mayor,
one city council president, and one comptroller in New York
City, Butts v. City o f New York, 779 F.2d 141 (2d Cir. 1985),
cert, denied, 478 U.S. 1021 (1986);24 25 there was only one mayor
in Port Arthur, Texas, City o f Port Arthur v. United States, 459
U.S. 159 (1982);23 and there was only one probate judge in Dallas
24Moreover, Butts cannot be read to stand for the proposition that
offices are exempted from §2 if they do not involve collegial
decisionmaking. See Pet. App. at 100a (Higginbotham, J., concurring).
In fact, a significant portion of the function performed by the three
offices in Butts was collegial: their occupants sat on the New York City
Board of Estimate, the multimember body responsible for conducting a
significant part of the city’s business. See Board o f Estimate v. Morris,
109 S.Ct. 1433 (1989).
25Port Arthur is especially inapposite to this case, as it did not
involve § 2 at all (it was a § 5 case, and this Court has already held that
§ 5 covers trial judges, Haith v. Martin, 618 F. Supp. 410 (E.D.N.C.
1985), ajf’d, 477 U.S. 901 (1986); State Board o f Elections v. Brooks,
112 L.Ed. 2d 243 (1990)), and no one had challenged any aspect of the
37
County, Alabama, United States v. Dallas County, 850 F.2d 1430
(11th Cir. 1988). If Harris County had only one trial judge,
petitioners would be hard-pressed to challenge the at-large feature
of his or her election.2* But Harris County has 59 judges. Texas’
decision to use numbered posts and its rules governing judicial
duties simply do not transform the 59 technically fungible judges
into 59 discrete offices. See Pet. App. at 155a~160a (Johnson,
J., dissenting); Southern Christian Leadership Conference v.
Siegelman, 714 F. Supp. 511, 518 (M.D. Ala. 1989); Karlan,
Undoing the Right Thing: Single-Member Offices and the Voting
Rights Act, 77 Va. L. Rev. 1, 18-19 (1991).
b. The Concurrence’s Reliance on the Congruence of
Electoral and Jurisdiction Bases Is Misplaced
The second per se rule advanced by the concurrence rests
on its belief that when an official’s "elective base and jurisdiction"
are linked, § 2 cannot be used to uncouple the two by requiring *
procedure for electing the city’s mayor.
“However, petitioners would still have standing to challenge other
electoral features of such a system such as its winner-take-all majority
vote requirement. See supra at nn. 9 and 17.
38
the disaggregation of multimember districts.27 Pet. App. at 105a
(Higginbotham, J., concurring).
As an initial matter, it is important to realize that in every
at-large election system a coterminous electoral and jurisdictional
base exists. When a city council, for example, is elected at-
large, each council member’s elective base is the entire city, and
she is expected to represent the interests of the entire city.
Indeed, the linkage of elective base and post-election responsibility
is precisely the justification for at-large elections. See, e.g., City
o f Mobile v. Bolden, 446 U.S. 55, 70 (1980) (plurality opinion);
id. at 82 (Blackmun, J., concurring in the result); 1982 Hearings
at 1310 (testimony of Henry Abraham); id. at 1358-59 (statement
of James Blumstein). Yet, Congress made it crystal clear in 1982
that at-large elections are not per se immune from attack. Indeed,
§ 2 was amended expressly to repudiate this Court’s analysis in
Bolden and to make explicit the statutory basis for challenging at-
large elections. S. Rep. at 15-16 & 27.
If anything, it is less necessary to link elective and
jurisdictional bases for judges than for other elected officials.
Judges, unlike members of state legislatures, city councils, boards
27Again, the concurrence presumes that sub-districting is the only
remedial alternative, which is not the case here. See infra at 56-60.
39
of education, or other local commissions, are not permitted to be
partisan champions of the electorate that selected them. Judges
would violate their oath of office if they were to decide cases in
favor of litigants from the county that elected them. Since judges
do not represent their constituents in the sense of adopting popular
preferences as decisions in individual cases, it is less important
that a judge’s jurisdiction cover only those persons who elected
him or her than it is, for example, that a city council member’s
jurisdiction cover only persons in his or her electorate. C f Holt
Civic Club v. City o f Tuscaloosa, 439 U.S. 60 (1978) (upholding
an Alabama statute giving city’s police jurisdiction over
unincorporated communities within a few miles of their
boundaries).
At bottom, the concurrence’s linkage argument is entirely
dependent on its analysis of the state’s purportedly distinctive
interests in structuring elections for its judicial system in a fashion
that clearly would be subject to invalidation under § 2 if it applied
to elections for any other office. As discussed fully below,
Texas’ history and present system of electing its judges shows a
consistent state interest in treating judicial elections like all other
elections. In addition, under §2, the state’s interests in particular
electoral features do not pretermit an analysis of the totality of
40
relevant circumstances, but are simply one factor among many to
be considered at the liability stage. Here, the state failed to
identify any interests that outweigh African American voters’
interests in a racially fair electoral system. The concurrence has
improperly injected interests appropriately considered only at the
remedy phase into its assessment of liability.
C. Texas Treats the Election o f District
Judges Like All Other Elections
In every respect, Texas treats judicial elections like
elections for non-judicial offices. Although Texas has been
required to comply with both § 5 of the Voting Rights Act, see
supra at 13 and n. 15, and § 2 of the Act for non-judicial
elections, see e.g., White v. Regester, 412 U.S. 755 (1973);
Jones v. Lubbock, 727 F.2d 364 (5th Cir. 1984); LULAC v.
Midland 1SD, 812 F.2d 1494 (5th Cir. 1987), vacated on other
grounds, 829 F.2d 546 (5th Cir. 1987); Campos v. City of
Baytown, 840 F.2d 1240 (5th Cir. 1988), cert, denied, 109 S. Ct.
3213 (1989), Texas now seeks to exempt judicial elections from
41
coverage under § 2.28 But because Texas historically has treated
all elections the same, it may not exclude judicial elections from
the obligations imposed by §2 by mere fiat.
The decision to elect judges by popular election is
controlled by individual state policy. The Constitution reserves
to states great latitude in choosing a method of selecting judges.
States may appoint judges without offending the Constitution.29
Holhouser v. Scott, 335 F.Supp. 928, 930-932, (M.D.N.C. 1971)
(republican form of government does not require election of state
court judges), summarily aff’d., 409 U.S. 807 (1972).
Originally, most states provided for the appointment of
judges, but by the middle of the 1800s, there was growing public
pressure led by Andrew Jackson’s criticism of an unelected
judiciary, to make judges more representative of the public by
"subject[ing judges] to direct, periodic popular review in
elections." D. Adamany, P. Dubois, "Electing State Judges,"
1976 Wisconsin Law Review 731, 769 (1976). Beginning with
New York in 1846, by the outbreak of the Civil War, 22 states
^Texas recently sought preclearance under § 5 for the addition of
district judgeships. See supra at n. 15.
29 A shift from an elective to an appointive system could, however,
violate the Voting Rights Act. See House Report No. 97-227, 97th
Cong., 1st Sess., at p.18 (1982) (hereinafter "House Report a t __").
42
had adopted the partisan election system for judges. Hill,
"Taking Texas Judges Out of Politics: An Argument for Merit
Selection." 40 Baylor L. R. 339, 346 (1989). Texas adopted an
elective system in 1850.
As historian James Hurst has noted, the move to select
judges by popular election rather than by appointment was a
"highly self-conscious choice of policy." J. Hurst, The Growth of
American Law 140 (1950). Proponents of an elected judiciary
argued that while judicial independence was a goal shared by all,
it was simultaneously necessary to ensure that state judges were
aware that they were responsible to all of the people of the state.
Hall, "The Judiciary on Trial: State Constitutional Reform and
the Rise of an Elected Judiciary, 1846-1860," 45 Historian 337,
348 (May 1983).
Texas, in particular, has demonstrated a strong policy in
favor of public participation in the selection of judicial candidates.
Despite repeated attempts in the legislature to re-introduce an
appointive system of selecting judges since the creation of its
Constitution in 1876, Texas has consistently refused to adopt even
43
a limited appointive system for the selection of judges.30 See Hill
at 354; Champagne, "The Selection and Retention of Judges in
Texas," 40 Southwestern L.J. 53, 57 (1986).
Judicial elections operate just like other Texas elections.
Primary and general elections forjudges are held at the same time
as elections for state legislators and municipal officers. Judicial
candidates are bound by the same election rules and regulations as
non-judicial candidates. Candidates running for district judge, for
example, are required to pay to the Democratic or Republican
party a filing fee comparable to that required from legislative
candidates. See Tex. Elec. Code §172.024.
Like elections for non-judicial officers, judicial elections in
Texas are partisan. In the case at hand, for example witnesses
30As argued by the Chisom petitioners, and incorporated herein by
reference, see Chisom Brief at 51-56, this state policy decision to select
judges by popular election carries with it the responsibility to conduct
those elections in accordance with the Constitution and federal law. Just
as Texas could not require a literacy test as a prerequisite to voting,
Texas cannot avoid the other conditions imposed on elections by the
federal government. This Court has cautioned that "Texas is free to
conduct her elections and limit her electorate as she may deem wise, save
only as her action may be affected by the prohibitions of the United
States Constitution or in conflict with powers delegated to and exercised
by the National Government.” Smith v. Ailwright, 321 U.S. 649, 657
(1944).
This Court has also specifically cautioned against treating the state
judiciary as "a mystical entity" and state judges "as anointed priests set
apart from the community." Landmark Communications v.
Commonwealth o f Virginia, 435 U.S. 829, 842 (1978) (quoting, Bridges
v. California, 314 U.S. 252, 291 (1941) (Frankfurter, J., dissenting).
44
testified that incumbent Democratic judges in Harris County
campaigned and raised funds together, and posed for a picture to
be used in a mass mailing that encouraged voters to re-elect the
Democratic slate of judges. See e.g., TR. at 3-211.31
In addition, trial judge districts tend to be coterminous
with the districts from which non-judicial officers are elected. As
one Texas commentator has observed, "the demographics and
design of [trial court] judicial districts bear striking similarity to
districting plans which have been judicially overturned at every
level of government, from school boards to Congressional
districts" in the state. Johnson, "Simple Justice," Background
Report to House Committee on the Judiciary, Texas House of
Representatives (November 1990).
Since Texas treats its trial judge elections no differently
than any other elections, elections for trial judges are entitled to
31Texas’ judicial elections often receive more nationwide attention for
their competitiveness, and the sometimes astronomical sums of money
contributed to judicial campaigns, than elections for legislative and other
non-judicial offices. See Woodbury, "Is Texas Justice for Sale?, Time,
January 11, 1988 at 74; "‘60 Minutes’ Examines Controversy Over
Donations to Judges," Houston Post, Dec. 7, 1987, at 2A, col. 1.
Campaign contributions, not the qualifications of the candidates, often
play a significant role in the outcome of judicial elections in Texas. Hill,
at 341 ("The role of large contributors to judicial campaigns is critical
since there is a high correlation between campaign contributions and
electoral success.")
45
no special judicially-created exemption from §2. Indeed, in the
1982 legislative history to §2, specific reference was made to the
very Texas district court judgeships at issue in this case.
Moreover, nearly every reference to judicial districts in the
legislative history of the Act refers to trial judge districts. See
Extension o f the Voting Rights Act: Hearings Before the
Subcomm. on Civil and Constitutional Rights o f the House Comm,
on the Judiciary, 97th Cong., 1st Sess. at 38, 937, 1188 (1981).
D. A State’s Interest in Particular Electoral Features
Cannot Insulate Those Features from §2 Review
The state and the concurrence argue that even though the
result of maintaining the current method of electing district judges
virtually excludes African Americans from an equal opportunity
to elect their candidates of choice as district judges, the state’s
interests in maintaining the at-large system pretermit a liability
finding under §2.
As a matter of law, this interpretation of the Act’s
application and the role of the state’s interest in determining
liability under §2 is fundamentally at odds with Congress’
judgment. Congress has expressly rejected the notion that state’s
46
interests in particular electoral structures may be elevated above
the right of minority voters to full and effective enfranchisement.
In enacting the Voting Rights Act, Congress articulated a national
policy placing minority voters’ rights before political tradition and
state policy. See S. Rep. at 5 (statute enacted to "create a set of
mechanisms for dealing with continued voting discrimination . . .
comprehensively and finally.") Thus, the state’s interest in an
educated electorate, for example, see Lassiter v. Northampton,
360 U.S. 45 (1959), no longer justifies the maintenance of a
literacy test as a prerequisite to voting.3* Oregon v. Mitchell, 400
U.S. 112 (1970)(upholding 1970 amendments to the Voting Rights
Act suspending the use of literacy tests nationwide). Similarly, a
state’s policy favoring at-large elections cannot justify their
maintenance if that structure dilutes minority voting strength.32 33
Congress has exercised its political judgment and decided that
states’ interests must yield to the Congress’ interest in eradicating
32The state’s interest in administrative convenience also cannot
outweigh minority voters’ rights to be free from restrictive registration
practices. PUSH v. Allain, 674 F. Supp. 1245 (N.D. Miss. 1987)
33This is especially true where, as here, the trial record does not
support, or even mention, most of the interests that concern the
concurrence.
47
racial discrimination in voting.34 The Fifth Circuit cannot re
evaluate Congress’ decision to give primacy to the interests of
minority voters, and substitute its own judgment about the proper
weight to be afforded the state’s interests.35
In setting out the standards for assessing claims under
amended §2 of the Act, Congress did not invite courts to use the
state’s interests to trump the plaintiffs’ right to participate in an
electoral and political process free from racial discrimination.
Indeed, Congress suggests exactly the converse. Proof that the
state’s policy underlying a challenged electoral practice or system
is tenuous may have probative value "as part o f the plaintiffs’
evidence" in establishing a violation under amended §2. S. Rep
at 29 (emphasis added). Congress does not provide that the state
may assert the non-tenuousness of the policy underlying the use of
a challenged electoral structure as an affirmative defense to a vote
dilution claim, as Texas attempts in the case at hand. See e.g.,
34Although in Gingles the State of North Carolina similarly argued
that its interests were served by the use of multi-member districts in that
state, this Court notwithstanding unanimously affirmed the district court’s
finding that those interests did not outweigh the plaintiffs’ showing of
vote dilution. Thornburg v. Gingles, Brief of Appellants at 3 (1985).
3iIn any case, it is a well-established principle that state policies are
only to be honored by courts only to the extent that they do not
undermine rights guaranteed under the Constitution and federal statutes.
White v. Weiser, 412 U.S. 783, 795-797 (1973); Smith v. Allwright, 321
U.S. at 657.
48
S. Rep. at 195 (additional views of Sen. Robert Dole, the
architect of §2(b)) (amended §2 rejects composite standard in
which defendants may rebut a showing of discriminatory results
by showing non-discriminatory state interest behind challenged
practice). To elevate, as the concurrence does, the interests of
the state in maintaining particular, albeit discriminatory, electoral
features to a threshold coverage question simply re-introduces the
intent standard, which Congress expressly repudiated when it
amended §2.
Moreover, the state’s articulation of even important, non-
racial interests in maintaining a particular election structure is of
little probative value under the amended Act.36 Thus, "even a
consistently applied practice premised on a racially neutral policy
would not negate a plaintiff’s showing through other factors that
the challenged practice denies minorities fair access to the
process." United States v. Marengo County Commission, 731
F.2d 1546, 1571 (11th Cir.)(quoting Senate Report at 29 n.117),
cert, denied, 469 U.S. 976 (1984). The state’s interests are but
one factor which may be considered in the "totality of
36"Benign explanations may be offered for why these methods have
been selected, but the results [are] telling: minorities remain severely
underrepresented in county[wide]" judicial office. House Report at 20;
see also, S. Rep. at 195.
49
circumstances," and, in fact, are not among the factors identified
by this Court or by Congress in the Senate Report as the most
important. Gingles, 478 U.S. at 45 n.15 (identifying the extent
of minority electoral success and the existence of racially
polarized voting as the most important and relevant factors).
E. The District Court Properly Found that the Interests
Advanced by the State Are Not Compelling
At trial, the state articulated its interest in equalizing the
judicial dockets and maintaining judicial independence as a basis
for perpetuating the use of countywide electoral districts for
district judges. The LULAC concurrence raised an additional
concern that litigants, under a sub-county election scheme, would
appear before judges over whom they have no electoral control.
Pet. App. at 107a-108a. This issue was also raised on appeal by
the state. None of these interests, however, were supported by
evidence in the record. Moreover, Texas’ current electoral
practices do not support the concerns raised by the state at trial,
as discussed below. Accordingly, the district court, based on the
evidence in the record, found that the state’s preferred interests in
maintaining the at-large method of electing district judges were
not "compelling." Pet. App. at 283a. Instead, the district court
50
was persuaded that the state’s articulated interests could be
accommodated "under a single member scheme or . . . other
[alternative electoral] scheme." Id. at 284a.
The Fifth Circuit, in reviewing the district court’s findings,
improperly substituted its own interpretation of the evidence
presented, completely ignoring the clearly erroneous standard of
Rule 52(a). Gingles, 478 U.S. at 78. With regard to §2 vote
dilution claims, in particular, this court has specifically instructed
reviewing courts to afford great deference to the factual findings
of the trial court judge who is better acquainted with the
"indigenous political reality." 478 U.S. at 79-80. In LULAC,
the trial court’s findings as to the state’s articulated interests were
amply supported by the record.
First, the state’s claim that the 1985 amendment to the
Texas Constitution requiring that electoral districts for judges
consist of whole or multi-counties was enacted in furtherance of
a broader state judicial reform effort to equalize the dockets of
judges is entirely unsupported by any facts or testimony in the
record. See Testimony of defendant Chief Justice Thomas
Phillips, TR. at 5-78. Chief Justice Phillips was unable to explain
how the county wide election requirement furthered the state’s
51
asserted interest in equalizing the dockets,37 Id.
Similarly, nothing in the record supported the state’s
concern that judges elected from sub-county districts would be
vulnerable to improper pressures from special interests and
organized crime. To the contrary, one defendant-intervenor
testified that he knew of no instances in which the independence
of Texas’ Justices of the Peace, who are elected from sub
districts, has been questioned. TR. at 4-90.
Moreover, the state’s assertion that elections from sub
county districts will undermine the independence of district judges
is belied by the existence of at least 61 district courts in Texas,
elected from countywide or multi-county districts with populations
of 50,000 or less. If Harris County, with a population of 2.8
million were divided into 59 equally populous judicial sub
districts, for example, each district would have a population of
approximately 47,000 residents. Evidently, Texas currently elects
judges from districts with comparable, and in some counties
37The state’s articulated interest in equalizing the court’s dockets is
not supported, in fact, by a review of the court dockets in varying
counties. In 1988, for example, more cases were docketed and reviewed
by the courts in Dallas, Bexar and Travis counties, than in Harris
County, yet Harris County is assigned more district judges (59) than any
other judicial district in the state. Johnson, "Simple Justice,"
Background Report of the Committee on the Judiciary, Texas State House
of Representatives (November 1990).
52
smaller, populations than the population contemplated in the
hypothetical 59 sub-district remedy for Harris County that was
objected to by the concurrence.38 No one has ever suggested that
the judges currently serving in the 61 counties referred to above
or the state’s Justices of the Peace are biased decision-makers,
influenced by organized crime. In light of the complete absence
of any evidence in the record to support this asserted interest, the
state cannot legitimately assert that sub-districts created to cure
racial vote dilution in Harris County would produce such sinister
results.39
The concurrence also relies on the state’s purported
interest in maintaining a link between the electoral and
jurisdictional base for district judges. In addition to its previously
38Other states, undoubtedly also concerned with maintaining a fair
and independent judicary, elect judges with citywide or countywide
jurisdiction from sub-districts, and this process has been upheld. See
e.g., Holhouser v. Scott, 335 F.Supp. 928 (M.D.N.C. 1971) (upholding
statute permitting judges with statewide jurisdiction to be elected from
districts; also upholding transfer of district judges from one district to
another for temporary or specialized duty); Cox v. Katz, 294 N.Y.S. 2d
544 (1968) (upholding constitutionality of electing judges with citywide
jurisdiction from districts within each borough).
im p lic it in the state and the concurrence’s asserted concern is an
assumption that African American judges elected from sub-districts would
be more susceptible to special interest influence than the white judges
who currently serve in districts virtually equally in size to the
hypothetical majority African American sub-districts. There is nothing
in the record to suggest that African American judges would be less
likely to uphold the judicial oath of fairness and impartiality than
currently sitting white judges in small counties.
53
discussed legal flaws, see supra, at 37-40, this analysis is also
factually unfounded. District judges in Texas do not, in fact,
have a coterminous electoral/jurisdictional base because Texas
district judges have statewide jurisdiction and may hear cases
anywhere in the state. See Nipper v. U-Haul, 516 S.W .2d 467
(Tex. Civ. App. 1974); Reed v. State o f Texas, 500 S.W .2d 137
(Tex. Crim. App. 1973). Thus, if the concurrence’s
interpretation is correct, Texas currently violates the rights of
litigants who appear before out-of-county judges.40
Indeed, the reality of judicial administration in Texas is at
odds with the state and the concurrence’s view that litigants have
a right to have their cases adjudicated by judges over whom they
have electoral control. Judges in Texas, in fact, often sit in
counties from which they were not elected in order to assist with
docket control. TR. at 5-120. Litigants in Texas, therefore,
frequently appear before judges over whom they have no electoral
control. In addition, under the current system, cases are assigned
to judges "at random," and may be freely transferred between
"“The dissent addresses this argument in detail at Pet. App. at 169a-
174a. In any case, if Texas views this interest as important then it may
accommodate that interest by preferring a remedial plan than preserves
the protections currently offered by its venue rules. Texas is also free,
of course, to adopt new venue rules to protect its interests once a
remedial plan is adopted. These options are to be explored, however, at
the remedial stage of §2 litigation. See infra, at 56-61.
54
judges. Litigants, therefore, have no expectation, of appearing
before any particular judge. TR. at 2-55.
The state’s purported policy in favor of county wide
electoral jurisdictions for judges is most significantly undermined
by the state’s own law which permits the election of judges from
sub-county districts. Art. 5, §7(a)(i), Texas Constitution of 1876,
as amended.41
In short, Texas’ asserted interests in the maintenance of
the current judicial election method were properly weighed by the
district court. Against these unsupported interests, the district
court weighed the overwhelming evidence in the record that
African American voters are prevented under the current election
system from electing their candidates of choice as district judges.
Among the most compelling evidence relied upon by the
district court were the racially polarized voting analyses of both
parties’ experts. They showed that white voters and African
4!The state’s most clearly articulated policy is one which favors the
involvement of the voters in the selection of the state’s judges. As
discussed above, Texas has maintained and reaffirmed this policy
repeatedly during the past 124 years. The current system, which
demonstrably excludes minority voters from the state’s judicial electoral
process in Texas’ most populous counties, itself runs counter to Texas’
interest in public selection of the judiciary. Having delegated to voters the
right to elect all of the state’s judges, Texas’ policy would be served
better by the inclusion of all of the voters - including minority voters
-- in the judicial election process.
55
American voters in Harris County voted differently in every
election in which a white candidate faced an African American
opponent. African American voters consistently gave 97% of
their votes to African American candidates, while whites never
gave even a bare majority of their votes to an African American
candidate. Even within the same political party, there was a 40%
disparity in the success rates of African American and white
district judge candidates in general elections. TR. at 3-134-135.
The virtual refusal of white voters in Harris County to
elect African American judicial candidates was most boldly
evidenced by the 1986 the re-election bid of 19 incumbent
Democratic judges, in which all of the 16 white Democrats won,
while all three African American Democratic incumbent judges
lost. The record showed that as a result of the dilution of African
American votes, only 2 African Americans were elected as district
judges between 1980 and 1988. The full weight of the evidence
in the record leads to the inescapable conclusion that racial vote
dilution exists in Harris County district judge elections.
The district court properly found that in the context of the
political reality in Harris County, the state’s unsubstantiated
interests were not compelling.
56
F. Section 2 Provides States with the Opportunity at
the Remedy Stage to Devise Election Methods that
Protect their Legitimate Interests
Although the state’s interests in perpetuating the use of a
dilutive electoral scheme cannot be afforded controlling or even
significant weight in determining liability under §2, the Act
provides for the protection of the state’s legitimate interest in
retaining the non-dilutive features of such an electoral scheme.
These interests are properly accommodated at the remedy phase
of the litigation.
At the remedy stage, the state is afforded the first
opportunity to fashion an alternative election plan42 that remedies
the proven violation and serves the state’s bona fide interests.
“Despite the concurrence’s attempt to analyze the apprpriateness of
a sub-district remedy for the election of district judges in Harris County,
no remedies, save the interim remedy ordered by the district court, were
offered by either party, in the case at hand. The illustrative maps offered
by the plaintiffs at trial were not proposed remedial plans. Those
demonstrative exhibits were offered for the limited purpose of illustrating
the causal nexus between the challenged election scheme and the dilution
of minority voting strength, in accordance with this Court’s direction in
Gingles. 478 U.S. at 45. Plaintiffs may use other methods to illustrate
the effect of the challenged election scheme on minority voting.
In Gingles, the illustrative map exhibited by the plaintiffs at trial
was not the remedial plan ultimately approved by the district court. In
fact, in that case, the court ultimately adopted the plan submitted by the
state, over the plaintiffs’ objections, as the remedy. See Gingles v.
Edmisten, 590 F.Supp. at 381. Thus, the plaintiffs’ demonstrative
exhibits provide a limited basis, at best, upon which a court can
determine effectively the appropriateness of a sub-district remedy.
Certainly denying liability based on objections to the hypothetical sub
district maps offered at trial is utterly unfounded.
57
McDaniel v. Sanchez, 452 U.S. 130, 150 n. 30 (1981). The state
also may object to elements in a plaintiffs proposed plan which
undermine those interests. In reviewing proposed remedial plans,
the court is required to defer to the state’s preferred plan, so long
as it completely cures the violation "and is not itself vulnerable to
legal challenge." White v. Weiser, 412 U.S. 783, 797 (1973).
In the instant case, both Texas and the concurrence
advanced interests that they claim will be undermined by the use
of electoral sub-districts, which they assume is the only available
remedy in this case. Sub-districts, however, are not the only
remedy available to cure the vote dilution proven by African
American voters in Harris County.43
Indeed, the HLA petitioners specifically alleged in their
complaint in intervention that "the use of a non-exclusionary at-
large voting system could afford African Americans an
opportunity to elect judicial candidates of their choice." J.A. at
20a. The HLA petitioners identified at-large limited and
cumulative voting, in particular, as election methods that would
43However, the use of electoral sub-districts for judges with
countywide jurisdictions has also been approved as a remedy under the
Voting Rights Act. See e.g., Martin v. Mabus, 700 F.Supp. 327, 332
(S.D.Miss. 1988) (approving remedial plan adopting sub-districts for
election of chancery, circuit and county court judges).
58
give African Americans a more equal voice in the election of
district judges. Both limited and cumulative voting remedies
preserve the county wide nature of the district judge election
scheme, but undercut the racially exclusionary "winner-take-all"
quality of the at-large structure that denies minority voters in
Harris County the opportunity to elect their candidates of choice
to judicial office.44
These potential remedies, which the petitioners and the
district judge anticipated would be explored at the remedial stage,
see Pet. App. at 303a (court will entertain motions to enjoin
future elections "pending the Remedy Phase of this litigation"),
address many of the concerns raised by the state and the
concurrence with regard to the appropriateness of a sub-district
remedy for trial judge elections.
If the parties had been permitted to proceed to the remedy
phase of the litigation, the petitioners were prepared to entertain
a claim by the state that the use of limited and cumulative voting
rill a limited voting election scheme, for example, each voter is
limited to voting for less than full slate of candidates. A cumulative
voting scheme, on the other hand, permits each voter to aggregate as
many votes as there are seats to be filled to cast for their preferred
candidate. In both electoral schemes, the at-large feature of the election
scheme is maintained. See Karlan, "Maps and Misreadings" at 223-
236. These modified at-large systems provide a realistic alternative to
sub-districting to cure a proven §2 violation.
59
would be an acceptable remedy to cure the proven violation in
this case. As both remedies provide electoral opportunities for
minority voters without relying on geographic sub-districting, the
coterminous electoral/jurisdictional base for Texas district judges
that the concurrence deems vital to the function of trial judges,
could be retained. These remedies are acceptable under the Act,
so long as they fully remedy the prior dilution.45 S. Rep. at 31.
See e.g., Dillard v. Chilton County Bd. ofEduc., 699 F.Supp.
870 (M.D. Ala. 1988), summarily aff’d, 868 F.2d, 1274 (11th
Cir. 1989) (adopting magistrate’s recommendation that cumulative
voting be used for election of county commission and school
board); Dillard v. Town o f Cuba, 708 F.Supp. 1244 (M.D. Ala.
1988) (limited voting scheme acceptable under §2 for city council
elections). The use of these voting systems has been upheld for
a broad array of elected offices, including trial judges. See e.g.,
Orloski v. Davis, 564 F.Supp. 526 (M.D. Pa. 1983) (upholding
use of limited voting scheme to elect Pennysylvania
Commonwealth Court); Cintron v. Romero-Barcelo, 671 F.2d 1,
4SOne expert has already concluded that "[ljimited voting is a viable
remedial system" for the election of district judges in Harris County.
Issacharoff, "The Texas Judiciary and the Voting Rights Act:
Background and Options," December 4, 1989 at 18, attached as
Appendix "B" to HLA-intervenors Supplemental Brief on Rehearing En
Banc.
60
6 (1st Cir. 1982) (holding that limited voting scheme for election
of Commonwealth representative is "reasonable" and facilitates
minority representation); Hechinger v. Martin, 411 F.Supp. 650
(D.D.C. 1976) (three-judge court) (upholding limited voting
scheme for District of Columbia city council elections) aff’d per
curiam, 429 U.S. 1030 (1977).
The availability of these remedial alternatives undermines
the very basis upon which the concurrence denies the plaintiffs’
relief in Texas: that a sub-districting remedy would undermine
Texas’ purported interest in preserving the countywide election
system for trial judges.46 More importantly, the availability of
remedies which do not involve sub-districting demonstrates the
danger of the concurrence’s premature consideration of remedial
issues.
Had the concurrence applied the correct legal standard
in this case, it would have been obliged to affirm the district
court’s factual findings as not clearly erroneous. Instead, it
elevates its speculative musings about several hypothetical state
interests to pretermit the totality of circumstances analysis of
discussion of these electoral alternatives and their relevance to
this case was briefed and argued by the HLA petitioners before both the
panel and the en banc court. Judge Higginbotham’s extensive panel
opinion and concurrence, however, fail to address this critical issue.
61
liability, treating the case as an opportunity for creative judicial
construction both of the relevant statute as well as the relevant
facts.
The concurrence’s misguided analysis obscures the most
important issue in the case at hand: African Americans are
effectively shut out from meaningful participation in the election
of district judges in Harris County. Despite the many theoretical
and policy-oriented issues raised and discussed by the Fifth
Circuit in LULAC, this factual reality — the exclusion of
minorities from the judicial electoral process — is never
addressed. The ability of minority voters to participate in the
political process, however, is the federally protected interest at the
core of this case.
As "the major statutory prohibition of all voting rights
discrimination," S. Rep. at 30, Congress intended the Voting
Rights Act to eliminate racial discrimination in voting "not step by
step, but comprehensively and finally." Id. at 5 (emphasis added).
As part of this goal, Congress intended to enfranchise
meaningfully African Americans citizens in all elections, including
those for trial judges.
62
Co nclusio n
For the foregoing reasons, this Court should reverse the
judgment of the court of appeals and remand this case for a
determination of the appropriate remedy.
Of Counsel:
M atthews & Branscomb
A Professional Corporation
Respectfully submitted,
Julius LeVonne Chambers
^Charles Stephen Ralston
Sherrilyn A. Ifill
99 Hudson Street
Sixteenth Floor
New York, N.Y. 10013
(212) 219-1900
Gabrielle K. McDonald
301 Congress Avenue
Suite 2050
Austin, Texas 78701
(512) 320-5055
Attorneys for Petitioners
*Counsel o f Record