Transcript of Proceedings September 22, 1989 - Volume V
Public Court Documents
February 5, 1990
300 pages
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Case Files, LULAC and Houston Lawyers Association v. Attorney General of Texas Hardbacks, Briefs, and Trial Transcript. Transcript of Proceedings September 22, 1989 - Volume V, 1990. 7c876c94-1b7c-f011-b4cc-6045bdd81421. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/f3a406b1-0287-445f-a7e9-f8126cbf69c8/transcript-of-proceedings-september-22-1989-volume-v. Accessed November 07, 2025.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
MIDLAND-ODES
LEAGUE OF UNITED LATIN AMERICAN
CITIZENS (LULAC), et al.
Plaintiffs,
V.
JIM MATTOX, Attorney General
of the State of Texas, et al.
Defendants.
TRANSCRIPT OF
EPTEMBER
VOLUME 'V OF
TRANSCRIPT ORDERED BY:
TRANSCRIBED BY:
APPEARANCES:
FOR THE PLAINTIFFS:
SA DIVISION
MO-88~-CA-154
Texas
CAUSE NO.
Midland,
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PROCEEDINGS
V VOLUMES
DEFENDANTS
MR. JIMMY R. SMITH
Court Reporter
UV. S§. District
P. 0. Box 1774
Midland, Texas
Court
78702
T
L.#RICE AN al MR. ROLAND
Southwestern Voter Registraticn
Education & Project
Suite ‘521, 20] 'St."™™Mary's
San Antonio, Texas 78205
St.
SUSAN FINKELSTIEN
Aid,
Mary's
78205
MS.
Texas Rural Legal
Suite 521.
San Antonio,
Inc.
201 st. St.
Texas
APPEARANCES:
FOR THE PLAINTIFF:
FOR THE HOUSTON
PLAINTIFF INTERVENORS:
FOR THE DEFENDANTS:
FOR JUDGE SHAROLYN
PP. WOOD:
(Continued. )
GARRETT, THOMPSON & CHANG
Attorneys at Law
Suite 800, 8300 Douglas
Dallas, Texas 75225
BY: MR. WILLIAM lL. GARRETT
MS. BRENDA HULL THOMPSON
MS. SHERRILYN IFILL
NAACP - Legal Defense and
Education Fund
16th Floor, 99 Budson Street
New York, New York 10013
MULLINAX, WELLS,
CLOUTMAN
Attorneys at Law
3301 Elm Street
Dallas, Texas 75226-9222
BY: MR. EDWARD B. CLOUTMAN, III
BAAB, &
MR. E. BRICE CUNNINGHAM
Attorney at Law
Suite 21,
717 South R. L., Thornton Fwy.
Dallas, Texas 75203
Attorney General of Texas
Supreme Court Building.
P. OC. Box 125458
Capitol Station
Austin, Texas 78711-2548
BY: MR. JAMES C. TODD
MR. RENEA HICKS
MR. RAFAEL QUINTANI
MR. JAVIER P. GUAJAR
PORTER & CLEMENTS
Attorneys at Law
3500 RepublicBank Center
700 Louisiana Street
Houston, Texas 77002
BY: MR. J. EUGENE CLIM
MS. EVELYN V.. EKEYE
ENTS
LN
TN EWI ET MT PRESS STE TL LTT ~via .
APPEARANCES: (Continued.
FOR JUDGE SHAROLYN
P. ROOD:
FOR JUDGE F. HAROLD
ENTZ:
)
MR. MICHAEL J.
Attorney at Law
Suite 200, 440 louis
Texas 77002 Houston,
MR. DARRELL FRANK
Attorney at Law
Suite 905, 10999 In
ug San Antonio, Texa
HUGHES & LUCE
Attorneys at Law
3800 Momentum Plac
1717 Main Street
Dallas,
BY: MR .
MR .
MR .
Texas 7201
ROBERT H.
BORRY M.
DAVID C.
WOOD
e
MOW. JP.
RUBARTS
GODRBREY
A ran oN TR SH RL Te UT
INDEX
PROCEEDINGS OF SEPTEMBER 22. 1989:
Open Court
Deposition Summary of Fernando Rodriquez
Deposition Summary of Becky Beaver
Witness sworn
Witnesses:
DAVID R. RICHARDS
Examination by the Court
Direct Examination by Mr. Todd
Cross Examination by Mr. Rios
Redirect Examination by Mr. Todd
Witness sworn
LOUIS E. STLENS
Examination by the Court
Direct Examination by Mr. Todd
Cross Examination by Mr. Barrett
Brief recess
Witness sworn
THOMAS R. PHILLIPS
Examination by the Court
Direct Examination by Mr. Hicks
Cross Examination by Ms. McDonald
Cross Examination by Mr. Rios
Cross Examination by Mr. .Cloutman
Cross Examination by Mr. Clements
PAUL CANALES
Examination by the Court
Direct Examination by Mr. Guar jardo
Cross Examination by Mr. Rios
Redirect Examination by Mr. Guar jardo
0
PAGE NO.
Ww
56
26
B57
63
73
74
74
7S
85
118
120
182
135
135
139
144
INDEX (continued)
TRAVIS SHELTON
Examination by the Court
Direct Examination by Mr. Guar jardo
Cross Examination by Mr. Garrett
Noon recess
Witness sworn
DELBERT A. TAEBEL
Examination by the Court
Direct Examination by Mr. Hicks
Brief recess
Cross Examination by Mr. Garrett
Cross Examination by Ms. 1fill
Cross Examination by Mr. Clements
Cross Examination by Mr. Godbey
Plaintiffs rest
Dallas Plaintiff Intervenors close
Houston Plaintiff Intervenors close
Defendants close
End of proceeding
PAGE NO.
EX 1 BB 1:1TS
NUMBER OFFERED ADMITTED
PROCEEDINGS OF SEPTEMBER 22, 1989:
Exhibits listed as offered by attorneys and so designated:
Plaintiffs:
P-8 Mentioned on page 138
TR-18 : wi J -
TR-20 Mentioned on page 74
All exhibits 1n prior testimony 73 73
Houston Plaintiff Intervenors:
Dallas Plaintiff Intervenors:
Defendants:
D-S Mentioned on page 154
D-6 Mentioned on page 154
D-7 Mentioned on page 221
D-8 Mentioned on page 1355
D~10 Mentioned dn page 218
D-11 Mentioned page 216
D-12 Mentioned on page 212
D-15 Mentioned on page 32
D-17 Mentioned on page 33
D-18 Mentioned on page 3&4
RE PP PN TT
E X HI BI TS tcontinued)
ADMITTED
NUMBER OFFERED
D-19 Mentioned on page 34
D-20 Mentioned on page 35
D-21 Mentioned on page 36
D-22 Mentioned on page 36
D-24 Mentioned on page &2
D-25 Mentioned on page 37
D-25(a) Mentioned on page 4&7
D-26 Mentioned on page 38
D-27 Mentioned on page 38
D-28 Mentioned on page 39
D-29 Mentioned on page 40
D-30 Mentioned on page 5
D-31 through 34 Mentioned on page 2835
D-39 Mentioned on page 67
All exhibits not already admitted 156
Houston Defendant Intervenors:
49 Mentioned on page 286
49(a) Mentioned on page 286
52 Mentioned on page 287
S2(a) Mentioned on page 286
59 132
156
E X HI BI1TS5S (continued)
NUMBER OFFERED ADMITTED
60 Mentioned on page 287
60(a) Mentioned on page 287
Dallas Defendant Intervenors:
16 Mentioned on page 277
20
24
25
wn
| n
FROCEEDINGS OF SEPTEMBER 22. 1989:
(Open Court.)
THE COURT: (Good morning. I notice we have the
Austin contingency with us here today. Very good. Call your
next witness, please.
MR. MOW: Your Honor, one housekeeping matter. We
have prepared a short one and a half page summary of the
deposition of Judge John Marshall and submitted 1t to Mr.
Cunningham and Mr. Cloutman to look at. In lieu of having
Judge Marshall testify live, we would like to offer this one
and a half page summary of this 3B-page deposition as
defendant Dallas Intervenors' Exhibit 24.
MR. CUNNINGHAM: No objection, Your Honor. Probably
the best thing that happened, one of the best things that
happened in this.
THE COURT: All right. Fine.
MR. MOW: Thank you.
MR. TODD: Your Honor, at the outset, 1 have two
deposition summaries I would like to present. One is short
enough, I think, that it could be read into the record; and
the other one, I can summarize the summary. Would that be
all right? Or do you want me to summarize both of them?
THE COURT: The latter.
MR. TODD: The first ~~
THE COURT: I get tired of questions and answers all
24
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Ln
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61
the time. ] don't care how short it is.
MR. TODD: This isn't done in question and answer.
It is just, the summary is just a narrative summary without
questions.
THE COURT: Okay. Give me the narrative, then.
That 1s all right.
MR. TODD: The first one is the narrative summary of
the oral deposition of Fernando Rodriquez. Mr. Rodriquez 1s
the former chief of the Energy Division of the Attorney
General's office, and he was campaign treasurer for Scott
McCown in his 1988 Democratic Primary race against Juan
Gallardo for District Judge. He was involved in that race
from the earliest stages. They, Mr. Rodriquez discussed the
concerns they had about running against Judge Gallardo
because he was the only Hispanic on the Travis County bench
at the time, and the concern being that there would be a
backlash from the liberal community who would react
negatively to an Anglo running against a sitting Hispanic
Judge. The liberal community included more than just the
minority community. He became Scott's treasurer because he
was a close friend and co-worker and fellow division chief
the Attorney General's office, and having an Hispanic
treasurer was a way to show this was not going to be a
polarized type of race. Mr. McCown overcame his reluctance
to run against a minority sitting District Judge because
In
24
29
several people urged him to run, and because Judge Gallardo
was not doing a good Job. Judge Gallardo was consistently
rated the lowest on the Bar poll by a significant amount. He
was inconsistent to the point where 1t was felt he was not
doing a good job and needed to be replaced.
Mr. Rodriquez goes on to say that Judge Gallardo's
rulings were not just different, they were bizarrely
different and he was not consistently bad 1n just one
direction, but in all directions.
THE COURT: Bizarrely different?
MR. TODD: Right. That was his term. Not Just
different.
In the utility law area, some of the attorneys in
the Energy Division would come back from the Court shaking
their heads in disbelief because they couldn't understand
what he had done. Similarly, environmental lawyers viewed
his rulings in their field as bizarre. And it goes on to
point out that environmental issues are especially important
in Travis County, and the support of environmental groups 1s
definitely important to candidates there. Scott McCown was
eminently qualified to be a District Judge. And Mr.
Rodriquez goes on to recount his numerous qualifications.
There were two issues in the campaign, qualification
and competency were the overriding ones. There were no
racial overtones in the campaign. Mr. McCown campaigned 1n
all parts of town. And that is a summary of the deposition
of Mr. Rodriguez. And, as I understand 1t, I will submit
this summary to you. Let me do this other summary, and then
l1 will bring them both.
The next is a summary of the deposition of Ms. Becky
Beaver. She is a lawyer who practices in Austin. Her
practice is primarily family law. She is a member of the
individual rights and responsibilities section of the State
Bar, a long-time member of the ACLU, very active 1n the
Women's Political Caucus, and she has chaired the City of
Austin Affirmative Action Advisory Committee. She has worked
in a number of campaigns for minority candidates, such as
EL]
' Lena Guerrero, for State Representative, and Gonzalo
Barrientos for State Senator. She supported Brenda Kennedy,
a Black candidate for County Court at Law, "and Wilford
Aguillar for County Court at Law. She 1s a member of the
Central Austin Democrats and North Austin Democrats. She
discusses the importance of the Women's Political Caucus
endorsement, and that endorsement is Exhibit 1 to the Beaver
deposition, which is D-30 in the exhibits there. Their
caucus in 1988 endorsed a number of minority candidates,
Margaret Gomez for Constable, Wilford Aguillar and Wilford
Flowers and Brenda Kennedy for County Court at Law positions,
Wilamina Delco and Lena Guerrero, separately for State
Representatives, and Gonzalo Barrientos for State Senator.
24
29
lS wn
As has been brought earlier, Mr. Flowers and Ms. Kennedy and
Ms. Delco are Black, the others mentioned are Hispanic. She
talks about the importance of the endorsement of the Central
Austin Democrats, and the fact that it endorsed Scott McCown,
that it endorsed, duly endorsed David Phillips and Alberto
Garcia and it endorsed Lena Guerrero and Gonzalo Barrientos.
She also talks about the Austin Progressive Coalition. She
talks at length about Judge Gallardo, and I won't go 1nto the
details, but it has particular emphasis on a case she
handled, which it involved a custody case 1n which she
represented the mother who, 1t was brought out at trial, was
a lesbian. Judge Gallardo approached the jurors with copies
of the Penal Code and demanded that the attorneys get the
District Attorney's office to intervene in the case. And 1t
attracted a great deal of attention, was widely discussed as
extremely bizarre.
The Bar poll she discusses, which is Exhibit 2 to
her deposition, which is the third among the exhibits. And
it shows that Gallardo ranks 13 overall, and that there was a
significant difference between his ranking and the next one
LD . Judge Brady, on the Court of Appeals, who is Anglo,
ranked lower. He, too, was opposed and defeated. She talks
about supporting Scott McCown, his credentials and Gallardo's
being Hispanic did not make it easier for there to be
opposition. If anything, it caused people to hesitate 1n
24
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signing on to him. This was something Mr. McCown had to
overcome rather than it being something that was an advantage
to him. And finally, she concludes that all four of the
County Court at Law races in 1988 were won by those
candidates endorsed by the Austin Women's Political Caucus,
three out of four of which candidates were minorities.
Let me submit these, too. I am going to note on the
summaries what are the —— well, I think it 1s already noted
—— what are the exhibit numbers of the depositions
themselves. At this time, Your Honor, the defendants call
Mr. David Richards.
THE COURT: Mr. Richards, if you would come forward.
Raise your right hand and take the oath.
(Witness sworn.)
THE COURT: Have a seat right over there. While you
are having your seat, I am sure you read your handout last
night. Now, tell me the year that Congress authorized
Federal Courts to hear habeas corpus petitions from State
Court.
MR. TODD: I was not present in Court yesterday,
Your Honor, and 1 don't believe —--
THE COURT: They didn't bring you one of these?
MR. TODD: Mr. Hicks neglected to. I think he
intended to, but I know he knows the answer, and he 1s not
here. Ever so often when 1 turn around, 1 find Mr. Hicks is
i ia
not there to back me up. However -—-
THE LOUIRT: That 1s not anything new?
MR. HICKS: I know for a fact that Ed Cloutman knows
that, in fact, knew it before getting the handout, and
frequently discusses that with me when I am in Dallas.
THE COURT: Mr. Cloutman, do you care to back up”?
MR. CLOUTMAN: Your Honor, I did read the pamphlet,
and I have already forgotten the answer. I am sorry.
THE COURT: We will defer this until some later
time. Mr. Clements, I am sure, knows the answer and we will
call on him for the answer when we finish this witness.
DAVID R. RICHARDS, WITNESS, sworn
} EXAMINATION
By THE COURT:
Q. Now, tell me your name, where you live and what you do,
please.
A. David Richards. I live in Austin, Texas. I am an
attorney.
R@. And have been for a long time?
A. Since «1957.
Q. You didn't have any hair, though, when you started?
A. Never did.
RQ. And I have known Mr. Richards for a long time. You are
here to testify for the defendants, are you not?
A. That's correct, Your Honor.
RY PL TH RAR ME TR
24
25
Richards — By the (our 5
Q. And you have been an assistant Attorney General, and you
have an office on 6th or 7th?
A. Seventh Street. 600 West 7th, that's right. I was
Executive Assistant Attorney General for a few years.
THE COURT: Okay.
DIRECT EXAMINATION
BY MR. TODD:
Q. Would you briefly outline your experience since 1969,
particularly as it relates to Travis County politics?
A. let's see, 1 moved back to Travis County in 1969 and
opened a law practice with Sam Houston Clinton. I suppose 1
had been in politics, my wife and I had, for some years, and
I guess we resumed politics probably the first couple of
vears after we returned. The first race I remember specific
involvement would have been the 1972 race for the Legislature
by Sarah Wittington. My wife managed that campaign, and I
was active in that campaign.
A. You are talking about political involvement?
Q. Right, as well as legal representation.
A. I'm sorry. In that same year, 1972-1973, 1 was, 1
think, ‘the principal attorney for, one of the principal
attorneys for the Black plaintiffs in a case that was then
called Graves versus Barnes, later called Register versus
White at the United States Supreme Court level, litigated at-
large legislative districts for, challenged them in Texas,
Richards — Direct: Todd C— 1d
. 1 and I guess one of the challenges was to the Travis County
2 at-large district. That case was tried, as ! recall, during
3 the winter of 1973. 1973. I was generally involved 1n
4 political matters, I was general counsel at the Texas AFL-
S C10. We were engaged in a variety of political litigation
6 and political campaigns. I guess in terms of Travis County
7 in specific, the galvanizing forces I see, and many people do
8 also, in the Hispanic Community Economy Furniture Strike 1in
Q 1970. I represented the union and it was a major force on
10 the east side out of which 1 think Richard Moya's first
13 election as County Commissioner came in 1970, 1t was a
ie principal force in the later Gonzalo Barrientos race for the
13 Legislature and Johnny Trevino's successful race for the City
14 Council. My wife ran for County Commissioner 1n 1976 and was
15 elected, and I was significantly involved in that. In 1978
16 through ‘80, I represented the NAACP in Austin for Travis
17 County in an effort to secure Justice Department objection
18 under Section 5S of the Voting Rights Act to City of Austin
19 annexations. We did a, what I thought at the time, was a
20 significant study of polarization, what we claimed to be
21 polarization in the voting patterns 1n the City of Austin,
ee and made oral presentations to the Justice Department to
23 block the annexations. The Justice Department refused to
c4 block the annexations on stated grounds that there was not
bw polarization as far as they were concerned in Austin. That
A a A a RE NR ENE
Richarge ~ Danect — +agd 1
1 was ‘7B to '80. ‘82, let's see, in 'B2, lI became Executive
e Assistant Attorney General of Texas. 1 had a variety of
3 voting cases in that period of. time, I challenged the,
4 knocked out the legislative reapportionment of the Texas
3 Legislature in a case called Valles versus Clements.
f=) Q. Do you recall service in connection with the Legislative
7 Redistricting Board?
8 A. After successfully challenging the Legislative
g redistricting, I was then hired by the then Land Commissioner
10 Armstrong, to be his attorney on his service on the
13 Legislative Redistricting Board, and was involved in the
ic drawing of the legislative districts that were the product of
13 that board. 1 was also involved, 1 had forgotten, in the,
14 redrawing of the legislative districts in Travis County in
15 1973 and four as a consequence of Graves versus Barnes
16 litigation.
17 Q. And just to complete the record, did you have any
18 involvement in Wilamina Delco, any of her campaigns?
19 A. I did her first successful legislative campaign, 1t was
20 1974. I was her lawyer -- she is Black -- her lawyer 1n a
el recount that followed that campaign.
22 Q. Okay. And did you have any involvement in the campaign
e3 of Judge Sam Houston Clinton to the Court of Criminal
24 Appeals?
eS A. He was my law partner at the time. Knowing Sam, 1t was
24
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Richards = Direct - dogg a
a reasonably laid-back campaign, but I was involved init.
Q. And, were you not involved 1n some campaigns for the
County Probate Judge and Justice of the Peace by Mr. Herman?
A. Yes. My then law clerk and associate, Guy Herman, first
in his race for J.P. and then later I guess in his race for
County Probate Judge.
Q. In order to be effective in all these various efforts,
both legal and political, how important is it to be rl Isr
with the voting patterns of the various ethnic communities 1n
Travis County?
A. It is important, and it seems to be I have participated
at least in studies a variety of times in terms of
examination of patterns of voting in Travis County.
Q. In preparation for this testimony, have you examined any
ssriieuler information or data?
A. Yes, I have. I went back through election returns,
particularly in the 1980's, but some back into the 1970's. I
studied, took a look at registration figures, ethnic
breakdown of registration figures, I took a look at campaign
literature, particularly the campaign literature associated
with the McCown-Gallardo race, ! looked at campaign financial
reports, interviewed, or -- interviewed -- discussed the
matter generally with some people who I think are generally
viewed as knowledgeable about Travis County politics.
Q. Just for the record, is one of the cases that you have
24
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Richards = Direct — odd Sy 3
beern involved with one called Ranjel versus Mattox, dealing
with south Texas?
A. Yes. I recently tried a case called Ranjel versus
Mattox, which 1s a challenge to the at-large election of
Court of Appeal Justices for the 13th Court of Appeals 1n
south Texas. }] tried that in front of Judge Vella.
3 Were any of the exhibits from that litigation useful in
your review for purposes of this testimony?
A. Well, we studied some of the same. We offered evidence
in that case and studied some of the state-wide races, which
I also looked at in Travis County. Notably, the Raul
Gonzalez first Democratic Primary in 1986 when he had three
Anglo opponents. I looked at those races.
Q. Early in this trial, there was testimony that the
political landscape of Travis County dramatically altered in
the early '70's. Would you agree with that assessment? |
A. Yes, I would indeed. And I feel as if I were intimately
involved in that transformation, but --
Q. From your perspective, could you describe it a little
bit?
A. I moved there from Dallas 1n '6°9. I had been 1n Austin
as a student. And Austin, still in '6%, to me, was sort of a
rather classic Texas backwater city. And I am not sure of
all the factors that changed it, but obviously a significant
factor was the students, student vote, changing attitude, 1n
Richarde — Direci — Jodo 5-14
particularly the Hispanic community, but all of which 1
suppose centered around the anti-war movement, the student
movement, and rising expectations in the minority
communities. Just a changing, I suppose, of the makeup 1n
the county. That is one factor. The other factor ‘is, of
course, the changing nature of the Democratic Primary over
this period of time, too, from 1972 to 1988. The big race,
interesting enough, the large Democratic Primary turnout 1n
Travis County was 1972. We now have two and a half times as
many, almost two times as many registered voters as we had 1n
1972. We still have not voted as many persons 1n the
Democratic Primary, not percentage wise, sheer numbers that
we voted in 1972. That is not just a factor attributable to
the Republican Primary vote, it is just a significant change.
There are those who think that the old tory Democrats,
however you want to call them, began to leave the Democratic
Primary in significant numbers after 1972. And the makeup of
the Democratic Primary obviously changed, at least that 1s my
impression and the impression of others, after that date.
Students got to vote, students registered to vote. I had a
case knocked out, a Texas Constitution provision that
prohibited students from registering to vote in the community
where they are attending college, a case called Wadley versus
Clark, which the old Texas law says there 1s a presumption
that students were non-residents of the area where they
24
ve
Richards —Daivect —»lodd B15
attended college. I had a case challenging that, we
successfully challenged that. Student registration soared.
Students left, Brown-Black coalitions formed and the politics
changed.
R. What with the decreasing number of people who actually
voted in the Democratic Primary, what impact has that had on
minority participation in the Democratic Primaries?
A. It is my opinion and impression, my impression that the
Democratic Primary had become increasingly progressive,
increasingly receptive toward minority candidates. I think
the results of Travis County politics will bare this out. Do
you want me to talk about that?
Q. Yes. We are going to in a moment. Let me Just ask, at
this point, what is the importance of winning the Democratic
Primary as far as being elected to office in Travis County as
opposed to maybe some other counties?
A. Travis County remains, at this stage, a totally
Democratic county. We have, there are not Republican
candidates filed, they don't file, typically, in Travis
County. There is no Republican in the Courthouse. There was
a constable, 1 think we beat him, and there are no
Republicans anywhere. And the Democratic Primary nomination
is the election to any county-wide office in Travis County.
Dukakis carried Travis County significantly, one of the few
urban counties in Texas.
YB A Fam
24
£3
tn
C Richards — asa nect — Todd
Q. Looking back at this period of the breakthrough for
minorities and progressives, what election would you identify
as the one that kind of signaled the change?
A. To my mind, 1 think to minimize, Gonzalo Barrientos, his
races were the races that were the most critical. In 197,
he opposed incumbent Wilson Foreman for the Legislature. it
was a brutal battle. He lost 1t narrowly. This was 1n an
at-large election, county-wide election, 1n the Democratic
Primary. In 1974, it was a re-run, that is, the same two
people, Wilson Foreman and Gonzalo Barrientos, again, county-
wide. Gonzalo Barrientos won. That same year, Wilamina
Delco, a Black woman, won the State Legislative Seat county-
wide, too, defeating three Anglo opponents county-wide,
without a runoff. 1 assume that is when, from that point
forward. We had already elected Richard Moya to the
Legislature, I mean, County ConAtsetonerts seat in 1970. But
the Moya commissioner's seat, which I think is Precinct 4,
has been held by an Hispanic since that date. Consistently,
it has always been, it has never been higher than 30 percent
Mexican-American-Spanish surname registered voters, but a
majority Anglo precinct. The Gonzalo Barrientos seat remains
Q. Go ahead. What about the Legislative seats?
A. The Legislative seats were redistricted in 1976 into
individual districts and continue to be individual districts.
TT BY TA SY Tm As or
The district that was held by Bonzalo Barrientos has 31
percent Spanish surname registered voters. When Gonzalo ran
for the State Senate, Linda Guerrero won that seat against an
Anglo and continues to hold 1t. Similarly in the county for
Black participation, Jimmy Snell won Commissioner Precinct 1
in 1978. A Black: continues to hold that. This year, Sam
Biscoe won that seat, defeating an Anglo candidate. 1¢t, too,
is less than a third Black, less than a third minority. That
pattern has continued, 1 think clearly, in those seats down
to the present time. The next —-- go ahead.
Q. In Travis County politics, what role or significance 1s
there in the endorsements by various Democratic
organizations?
A. it is my perception that the endorsing organizations,
and there are many, but that they play a significant role in
the Democratic Primary. There is an Austin Progressive
Coalition, an outgrowth or spin-off of the old student
minority coalition that began in the early '70's. it
continues to function today. They target key precincts which
are in the core of Austin, center of Austin, and they target
them, both door-to-door work, mailings and 1n those
precincts, these are significant precincts, high voting
precincts, and their endorsement is critical. They are not
the only, there are a number of Democrat clubs that endorse
mail-in membership and door-hang their particular areas.
hg TSO TERE, 3 EPR RE CORE
Richards —- Direct - 1ood = aie
These clubs are structured, frankly, in the sense they have
geographic zones in which they function, and they are
critical, There are other organizations, such as the
Democratic Women of Travis County, also, Women Political
Caucus, the Gay-Lesbian Political Caucus, all of which are
significant players, 1 think, in the Democratic Primary.
Q. Now, how willing have these endorsements, these key
endorsement organizations, been to endorse candidates who are
the candidate of choice of the minority communities in
Austin, in Travis County?
A. Their record is, as I see it, and 1 think everybody else
would agree, they have consistently endorsed minority
candidates, that is, candidates who were preferred choice of
the minority community. There have been, obviously, cases
where they have not, but they are, their essential political
belief, as I understand it, has been the furthering of
minority candidates and minority interests, frankly.
0. Let's look at some specifics. 1s it correct that in
1984, Gonzalo Barrientos, to whom we referred earlier, was
elected to the State Senate, county-wide?
A. The 1984 race, I suppose the other race that I was going
to point to as a significant race in Travis County was that
race. Loyd Doggett retired, there was an open seat for
Texas, or Senate seat in Texas. It was a four-person race 1n
the first Primary. Gonzalo Barrientos, Ed Small, who was on
gy TT TT IT DS Re A, Fe A gL CT TN Sr
EYP TNRCES a JN TIRATET
Richards. ~ Direct =~ Todd 5-19
the school board, Margaret Moore, who has been our County
Attorney, and a woman named Cathy Bonner. Everybody spent a
ton of money. Gonzalo was in a runoff with Margaret Moore
and both high-profile, high-finance race. Gonzalo won 1t
county-wide, 57.8 percent, I believe.
Q. In the General Election?
A. I'm sorry. We wiped out whoever was around 1n the
General Election. But 1 mean the Primary, 1 am saying 57
percent strictly, which was overwhelming support, clearly, in
the Mexican-American community, but significant, carries
significant numbers of Anglo precincts throughout the county.
And I guess one of my exhibits shows that.
Q. We will go through those. Now, looking at some other
races, what, approximately what proportion of voters in the
Democratic Primary reside within Austin?
A. 1 took a look at the 1988 Democratic Primary to see what
proportion of the voters in the Democratic Primary in 1988
voted, the City of Austin precincts of 85 percent. So, if 1
stated that correctly, 85 percent of the electorate in the
Democratic Primary are City of Austin voters. Is that clear
what I am saying”?
Q. Yes. Okay. So, looking, then, at the City of Austin,
how are City Council places chosen in Austin, at-large, or by
'single-member district?
A. As the Court knows, I am sure the record knows, it 1s
Richards - Direct - logd 5-20 NJ
® 1 still at-large. It is still at-large and has been the
E subject of significant litigation, as you know.
3 R. And how willing have the voters of the City of Austin
4 been to elect minority candidates to these at-large City
5 Council seats”?
6 A. Well, since Burrell Hancock, the first Black, was
7 elected, I think, in 1969, there has been a Black member of
8 the Council since that date. 1 think John Trevino was first
4 elected in, I believe '74. I'm not sure, Mid "70's, 1'm not
10 sure exactly. There has been a Mexican-American member of
11 the Council, seven-member council. The data 1s all, the
ig findings are all in Judge Nowlin's order. If I am wrong, 1
13 probably stand to be corrected by whatever he has found.
14 MR. ¥0DD: Your Honor, the two opinions, District i
1S Court opinions, in the Dverton case, '85 and 1987 are D-40 1n
16 the defendants' exhibits. And we submit those to you. I
17 believe you commented earlier in the trial you had read them
18 already, but just as a refresher, they are in there.
19 BY MR. TODD:
20 Q. Earlier in the trial, there was testimony that there was
21 a statement made that Senator Barrientos and Representative
ec Guerrero were merely unique individuals and with high profile
£3 races, but that Hispanics can't win the down-ballot races.
r= Do you have any information that bears on that comment?
es A. Well, I guess I have, I have a comment about -- I don't
BL Lt: 3 BE Ey te Ta REED Sd oh EL es AAR AR? he SL Fan SET SA LL gee Sa SRL Tn Cr at ato
Rr ae Fa Al rng AS 5 Adige) F do; ne F XY A Fo
AY SEPA nd bet Gr Era Th Fan, g q =
Richards » Direct =- Yooc 5-21
® 1 know what unique individuals mean 1n that context.
c Q. Nor do 1.
3 A. Gonzalo Barrientos ie as much a representative, and
4 identifies as much, 1 suspect, with the Mexican-American
8 community as any Mexican-American elected official ever
6 would. I mean, there is not an iota of pretense about him.
7 He is perceived, and, 1 think generally holds himself out to
8 be, someone who grew up in the barrios and he 1s unique, a
9 unique person, but he is also a Mexican-American candidate
10 who won county-wide in a very hotly contested race. Linda
11 Guerrero is the same, as a matter or fact. As to the down-
ie ballot races in 1986, we had a County Treasurer's race. The
13 race, there was a five person first Primary. Two Hispanics,
14 Delores Or tega-Carter and Ralph Pacheko and three Anglos.
15 The initial count shows Pacheko and Ortega-Carter as the two
16 top vote getters. In a runoff between the two, a recount
17 knocked Pacheko out by 15 votes, and it was a runoff between
18 Delores Ortega-Carter, who obviously is Hispanic, and an
1° Anglo, and she won the county-wide race against an Anglo 1in
20 the 1986 Democratic Primary, and is our treasurer today.
£1 os I believe you commented earlier --
ee A. And that was clearly a down-ballot race with little or
3 no money spent, and pretty much just a name on the ballot, I
24 think.
25 Q. You mentioned earlier, I believe, that you presented the
BE Ca ioe cr 7 a AE SPA En St SN it LTS i pen a a be ben Ea RCE TNS AS rm
24
25
Richards —- ‘Direct - odd H—-
=
NAACP 's objections to the Justice Department under Section 35.
Did I hear correctly, you commented that the Justice
Department found no significant polarization 1n the voting 1n
Austin?
A. Well, they didn't, you know how the Justice Department
functions, 1 don't mean to misstate it. They refused to
interpose an objection. They said to us the reason was they
did not find significant polarization to justify objections.
But that is just conversation. As far as 1 know, there has
never been, one thing I looked at to see has there ever been
a Justice Department objection interposed in Travis County
with respect to any electral matter, and the best we could
determine, we couldn't find any.
Q. And we mentioned the Overton case, has the Federal Court
in Austin ever had any other occasion to examine ethnic
voting patterns in Austin to see if there 1s polarization or
dilution of minorities?
A. Former District Judge Jack Roberts heard a case in 1977
in which he rejected a challenge to the at-large election of
City Council.
Q. Okay. What about the Austin Community College, does 1t
not have an elected board in the Austin area”?
A. Yes. The Austin Community College Board, which has been
significantly minority, Black and Hispanic, since 1t became
an elected board. The Austin Independent School District,
24
23
Richards — Direct - Todd S-23
which is also at-large, essentially the City of Austin, it
has had significant, always had significant minority
representation.
Q. Okay. Now, one of the exhibits that we will look at in
a moment, I believe you analyzed the precincts that normally
vote with the Austin Progressive Coalition or might be called
the Liberal White Precincts; is that correct?
A. Yes.
R. What about conservative White? For a moment, leaving
the Anglo liberals and how ever they may vote, what about, in
Travis County, the conservative Anglo precincts, do they vote
as a bloc, usually, to defeat the candidate of choice of the
minority communities?
A. We clearly have conservative Anglo blocs, I suppose,
largely in northwest Austin. Well, Il don't know. They voted
for the, as you know, they significantly voted for Gilbert
Martinez in the City Council race in 1987. A study, I have a
study, is that what you want to know?
@. We will get to that Exhibit in a moment, Well, let's
look at it.
A. Well, Raul Gonzalez, of course, Raul Gonzalez carried
the county against three Anglo opponents with 30 percent
plus. 1 mean, he had an absolute majority in Travis County
in the first Primary in 1986 and carried significantly, if
that is what you mean, carried significantly the northwest
Richards. — Direct - Todd o-24
®
i Austin boxes.
2 D.. How did John Trevino, running for City Council, how well
3 did he run in the conservative Anglo boxes?
4 A. I refer to Judge Nowlin's findings, Judge Nowlin's
S findings are that he ran, he carried those boxes or ran
b significantly well in them consistently.
7 Q. In Travis County, from your, from what you have been
8 able to observe, is having an Hispanic surname an advantage
Q or disadvantage in running for office in the Democratic
10 Primary?
11 A. It 1s my perception it is not a disadvantage. It 1s an,
12 an —— out of the McCown race and the attitude of political
is pros, people who spend a lifetime in it, say actually having
14 an Hispanic surname is an advantage in the Democratic
1S Primary, they perceive.
16 Q. Let's take the County Treasurer, her name is Delores
17 Ortega-Carter, is Carter her married name?
18 A. She was married at the time to a man named Bill Carter.
19 Q. She at least had the option of rurmning just as Delores
20 Carter if she chose”?
21 A. I assume so. No law required her to call herself
ee Delores Ortega-Carter.
23 BR. And the —-
=o THE COURT: Sam Houston Clinton could have run as
eS Sam Clinton?
Richards — Direct - Todd H-29
A. It would have had ae significant effect on that one.
BY MR. TODD:
Q. In a moment, we will examine some exhibits that show the
Gallardo literature. Let's turn now to the judicial races in
Travis County. How willing has the Liberal White Coalition
been to endorse minority judicial candidates?
A. Well, you know, we haven't had -- I mean, we are really
looking at the '88 races, they did not endorse Gallardo, they
endorsed, well, we have literature here.
RB. Mr. Aguillar, did he?
A. Sure. Yes, he had wide support. He was also unopposed.
Q. What about Wilford Flowers, who is Black, was he
endorsed?
A. Widely supported. Brenda Kennedy, who 1s Black, was
endorsed consistently by the liberal progressive voters.
RQ. Now, as you mentioned, and has been mentioned earlier,
Judge Aguillar and Judge Flowers were unopposed. Does that,
in your mind, undermine the significance of their endorsement
by the coalition?
A. I really don't know what to say about that. What
happened in Travis County, the Commissioners' Court had four
vacancies on our County Commissioners' Court, one by
resignation and three by additional seats. They appointed
four persons, four new judges in late '87, Wilford Aguillar,
Alberto Garcia, Wil Flowers, who is Black, and Brenda Kennedy
EE CI SE Re EE I TR TY TR TT TT ee pe
r=2
eS
Richards — Direct — Todd B-24
1s Black. When the primaries came, two of those were
opposed, Brenda Kennedy and Alberto Garcia, and two
unopposed, Wil Flowers and Wilford Aguillar. Based on what I
feel I know about it, Wilford Aguillar and Wil Flowers were
so highly thought of by lawyers, or Wilford Aguillar and
long-time Municipal Court Judge Wil Flowers, and former
District Attorney, Assistant District Attorney, that they
drew no opposition. I mean, that 1s the reality. l don't
know if —— that is the reality.
GQ. Would strong support from the, or perceived strong
support from the liberal White community be a factor in
discouraging opposition?
A. Yes, I am sure it will, 1s and will. Wil Flowers 1s
probably going to be unopposed for District Judge this year,
just because he has that very same support today.
Q. In the race between Brenda Kennedy and Celia Castro, the
plaintiffs have introduced evidence suggesting that Ms.
Castro got 45 percent of the Hispanic vote, and Ms. Kennedy,
who is Black, got 40 percent of the Hispanic vote in Travis
County. Does that match at all with your perception of what
happened in that race?
A. Well, my perception of that race was that Brenda Kennedy
was so overwhelmingly the favorite throughout the community,
yeah, that is my perception of that race. She ran a
significant campaign, she campaigned hard, and everybody
(8)
| n
NJ
Richards — Direct — Todd
thought highly of her. And she won handily against —-
Q. Ms. Castro. Now, what about the race between Judge
Phillips and Alberto Garcia for County Court at Law?
A. Well, that iis —-- first tog explsin, 1 am not sure 1 can
explain it, David Phillips had been the chief judge in
Municipal Court, City of Austin, for many years and was, 1f
you will look at the Bar poll, things you have, 1 think you
will see he consistently had a 4.0 rating. He was, at least
in Austin, the Municipal Court performs a number of
functions, including, not just processing traffic tickets.
In any event, he was highly thought of by the Bar. He and
his wife have been long-time activists within the political
liberal community. His campaign was run by Leonard Guerrero,
who was and is a legislator. I voted for Alberto Garcia. He
is a good guy, but he simply had not, I think did not have,
when you look at the Bar polls, he was outvoted three to one
by the lawyers in favoring David Phillips. I suppose that
explains it. Phillips had a high visibility, was an
excellent Judge.
Q. Are you familiar with the events which led to the
decision for Scott McCown to oppose Juan Gallardo for
District Judge in 19887
A. I am.
@. Could you tell us about how that decision came about?
A. 1 can tell you my, what 1 know about it, what role 1
Richards ~ Direct - Todd 5-28
played in it.
PF. All right.
A. Do you want all of 1t?
R. "Hell ~~
A. I was at the Courthouse. I ran into Becky Beaver and I
ran into Guy Herman. And as Courthouses are, they tend to be
gossipy places, and I hear, particularly out of Becky Beaver,
it looks like Scott, Juan Gallardo is not going to be opposed
this time, and he 1s an outrage. And I had had my own
experiences with Judge Gallardo. And that sort of muttering.
And the truth of the matter, 1 walked back to the office, 1
called Scott, 1'said, "Scott, 1 know you are bored over
there."
Q. ‘Over there' meaning where?
A. The Attorney Generals office.
Q. It is hard to believe, I realize, but this witness has a
lot of credibility.
A. This really happened. And 1 said, you know, "The truth
of the matter is, Judge Gallardo is a bad Judge and you ought
(1 to run against him.
#2. Okay. It was actually your suggestion?
A. I don't know. I mean, that is what happened. Within a
day or two, he called me back and said, "You convinced me, I
am going to do it." We went to a meeting that night.
Q. Who attended that meeting?
c4
25
ny
TE
Richards — Direct — Todd 5-
A. Fernando Rodriquez, B. B. Ruiz, who 1s a lawyer and
long-time political activist and Scott, of course, my law
partner, Phil Durst, a woman named Xen Oden, X-E-N, for some
reason, and Dean Rendy, who 1s a political consultant media
person. This was, I guess, the meeting in which there was sa
question, was he really going to make the race.
Q. In those discussions, to what extent was Juan Gallardo's
ethnic identity as an Hispanic a factor in the decision to
oppose him?
A. He came about two ways, I suppose. A general reluctance
on all of our parts, I think, to be involved in anything that
pitied, that set that up, an Anglo running against an
Hispanic. It looked bad, I guess we all felt. That was one
piece of 1t. The other piece of 1t was Dean Rendy's advice,
his opinion as 1 think it is fair to say, a political expert,
that indeed that an Hispanic surname would be a benefit to
Gallardo rather than a hinderance in the Democratic Primary
and the big problem Scott would have would be trying to
obtain endorsements out of progressive organizations who were
going to be inclined to endorse an Hispanic candidate.
Q. Earlier in talking about Judge Gallardo, you referred to
him as he was an outrage, and I believe you were present when
we put in -- didn't you use the term, ‘outrage' as a Judge?
A. Gosh, I hope not. If 1 did,t1 did. The record will
speak for itself. I had some experience with a case or two
24
es
Richards —- Direct —- Todd 5-30
that 1 was outraged about, 1 am not sure -- he is a good guy,
just a bad judge.
Q. His decisions were outrageous. All right. And you were
present earlier when we put 1n the deposition excerpts that
used descriptions such as bizarre and so forth. From your
knowledge of Travis County politics and the practitioners of
law in Travis County, can you tell us whether the same kind
of behavior that Gallardo displayed from the bench would be
perceived as bizarre, outrageous, etcetera, 1f an Anglo judge
did the same things?
A. Yes. It was conduct, or it seemed the case handling
that I know about and heard about, it would have been
bizarre, whomever I think did it. That is my 1mpression.
Q. In the —— earlier, there was also through deposition
testimony that environmental list, that it is very important
in Travis County to have the support of environmentalists.
Do you agree with that assessment?
A. I do. One of the cases that I personally am familiar
with is one in which Judge Gallardo significantly, infuriated
significant members of the environmental community, as well
as a lawyer by the name of Jenny Agnew, who was handling the
case, who was married to the Democratic Chairman and Chuck
Herring, as a prime mover in the central Austin Democratics,
and, I mean, you know, that community, the founder of the
State Bar Printing Association, a guy named Gilbert Dell,
Richards — Direct - Todd 5-31
1 wrote that entire, that significant environmental
ce organization wrote a three-page scathing letter about Judge
3 Gallardo in that case. There were things that cut across
4 those issues that gave Judge Gallardo problems in terms of
bo] re-election, plus, obviously, the gay-lesbian community,
l=) which was disastrous for him.
7 QR. From your knowledge of the Travis County politics and
8 your analysis of the voting in 1988, what voting patterns
Q produced the victory of Scott McCown over Juan Gallardo in
10 that race, who went for him, who went against him?
ii A. Gallardo clearly carried the Hispanic boxes. He
iE vcarried, I live in south Austin, he carried boxes 1n my
i3 neighborhood, which are mixed Hispanic. And pretty much,
14 Scott carried the rest of 1t. He carried all the progressive
19 boxes, they split the Black community pretty much down the
16 middle. But, 1 mean —
17 Q@. The progressive boxes, they went by and large for Scott?
i8 A. Went significantly for Scott.
19 Q. In the past, how had those same boxes voted, usually,
20 when Hispanics were running against Anglos?
21 A. You have an exhibit of mine that we analyzed, 1 think,
ee 26 core precincts which carried the progressive label. They
23 went 68 percent for Gonzalo Barrientos against Margaret
24 Moore; they went 59 percent for Raul Gonzalez against three
2S Anglo opponents; and they went 59 percent for Scott McCown
E 3 r : amr pra oye a —————— an Ge ts :
Richards, - Direct =- Todd 8-32
against Gallardo, I guess. And those are stable precincts,
we have not moved people 1n and out of them. This 1s the '84
Gonzalo-Barrientos race, the '86 Gonzalez race an '88 McCown
race. And I think a reasonable inference 1s that those
voters in those precincts are perfectly prepared and
demonstrate a willingness to support the candidate, minority
candidates, candidates of choice of the community. This
time, they didn't.
@. Before we conclude with the so-called 'Gingles factors’,
let me get you to identify some of the exhibits. There
should be an exhibit book there that refers to Defendants’
Exhibits, 1 think, 7 through 38. Is there such? The ones
that would include the exhibits in the Aa and low
twenties, or through the twenties.
A. I have it. Excuse me. I have that book.
8. Okay. Could vou look, first, at what has been
identified as Defendants' Exhibit D-137
A. D-15 is an exhibit I prepared which simply shows
something I mentioned earlier, and that 1s, it simply shows
registered voters in Travis County from 1970 to 1988, the
Democratic turnout in absolute numbers and percentage turnout
shows the Republican Primary turnout and percent turnout. I
guess the point I was trying to make, frankly this was a
revelation to me when I looked back. I didn't realize there
had been this significant a decline in turnout figures. I
24
25
(1
) Richards = Darect —' Todd 5-3
think it sort of bears out what 1 believe 1 testified to,
that the Primary has become somewhat more rarefied than 1t
was in the early '70's.
Q. It looks like it peaked in ‘'72.
A. i972.
Q. And has never gotten back up to the level?
A. That's right.
Q. Now, with the diminished proportion in the Democratic
Primary, what has been the consequences as far as minority
participation, minority portion of the Democratic Primary?
A. Well, I suppose, as you know, overwhelmingly, the Blacks
and Hispanic voters in Travis County participate in the
Democratic Primary. So, I guess just simply percentage of
total, their vote becomes more significant, I believe, as
White voters, Anglo voters, do not participate. And 1 think
by the same token, whatever this group of people we called,
which is the Travis County Progressive Democrats, Anglos,
they stayed in the primary, they haven't gone off in the
Republican Primary. So, I think it becomes more progressive,
and 1 think a8 lot of races bear that out.
Q. Look, please, at what is called Defendants' Exhibit D-
37. That appears to be an analysis of the particular
precincts?.
A. Yes.
Q. 1 believe there is a map attached to it.
Richards - Direct —- Todd 5-34
A. First ~— I'm. s0rry.
Q. Which precincts are those, how would you characterize
the precincts that are analyzed in this exhibit?
A. These are overwhelming, these are Anglo precincts, Anglo
core Austin progressive precincts. And the purpose of this
was, as 1 said, to try to see how they performed in the three
races. As 1 said, the Barrientos—-Moore runoff of 'B4,
Gonzalez first Primary of '86, we had three Anglo candidates,
and the Gallardo-McCown race and the totals of their
percentages, I think I gave you, but they were, I believe, 68
percent for Gonzalo, 58 percent or so for Gonzalez, and I
think 58 or 59 percent for Scott McCown. And the premise
being that this suggests that they are not resisting, and
these, the other thought Sa dstat these precincts are clearly
not the only places progressive voters live in Austin. But,
they are at least typical of how I think progressive voters
performed in the McCown-Gallardo race.
Q. All right. Defendants' Exhibit 1B appears just to be a
larger map of the precincts.
A. 1 just put that in so the record would have a precinct
map of Travis County.
Q. Look at Defendants' Exhibit 19, which starts with some
particular totals but concludes with a smaller precinct map
of Austin.
A. I guess this shows the —-
mn
24
25
Richarde —- Direct - ‘Todd 535
Q. This appears to be more detailed about the Barrientos-
Moore race.
A. Yes. This is . simply a map thet, one, it is the returns
of the Primary runoff between Barrientos and Moore. And then
a colored map which shows the precincts which were carried by
Barrientos, keeping in mind there are only seven precincts, I
think, in Travis County which are minority Hispanic
precincts. So, the rest of these are basically Anglo
precincts going for -—-
Q. If this were, rather than in color, a map that appeared
just as darker and lighter shades, I take it the Barrientos
majority would be the more darker shaded precincts?
A. Yes. I think you did tell me the Judge is colorblind,
co the darker shade would be the Barrientos race.
Q. In terms of justice as well. Okay. Defendants' Exhibit
D-20,
A. That is shaded map of the Gonzalez-Gibson runoff of
19846.
Be: ANG:
A. Which is the Texas Supreme Court race, and in this
instance, Gonzalez carried all of the, -— this 1s not going
to be helpful, all of the yellow precincts which are all over
the place.
Q. Which are solid -—-
A. Yes.
24
25
Richards - Direct - Todd 5-36
Q. Okay. By and large, the vast majority of precincts,
whether Anglo, Hispanic or whatever, 1t appears go for
Gonzalez in '867
A. Overwhelmingly.
Q. Then, Defendants' Exhibit D-21, what does that show us”?
It appears to be the Gallardo-McCown race.
A. 1'm sorry. That is the Gallardo—-Mclown race. That's
right.
Q. And the same precincts, 1 take it, in the core that are
normally Anglo liberal, it appears in this race they go for
McCown instead of the Hispanic candidate?
A. That is true. Some of the Black precincts go for
®
McCown.
QR. D-22, Martinez-Nofziger, what does that tell us with the
shaded areas being precincts carried by Martinez, what do you
see about the precincts that are going for Gilberto Martinez
in the City Council race?
A. This is the 1987 runoff between Martinez and Nofziger
for the Austin City Council. And the precincts carried by
Martinez are those in yellow. He carried the Hispanic boxes
and he carried -- it was an extremely close race, I think 1t
was decided by less than a percentage point. He carried
significantly the Anglo northwest Austin, west Austin boxes.
I have got those, I can give you the numbers.
9. I think we have an exhibit that has the numbers.
Richarde - Direct —- Todd 5-37
1 A. No, we don't.
e QR. No, we don't? Okay. What statistics, percentage-wise,
3 how did that come out?
4 A. There was an analysis done of the homogeneous precincts,
2 that is precincts which are 90 percent Anglo 1n that race.
6 And he got, well, 1 have got it here, if you will give me a
7 second. He got 58 percent, I believe, of the -- I will give
8 it to you exactly. Martinez carried 58 percent of the Anglo,
9 excuse me, 958 percent of the vote in precincts which were 90
10 percent Anglo. That was exactly the same percentage he
ii carried in the Mexican-American Spanish surname precincts,
12 which were 90 percent plus.
13 @. Actually, didn't he get just a fraction percentage
14 higher in the 90 percent Anglo”?
19 A. He may have. 1f it was --
16 Q@. Virtually identical. Would you look, please, at what
17 has been identified as Defendants' Exhibit 25, which appears
18 to be a set of endorsements. Just without dwelling on 1t,
19 would that appear to be some newspaper articles?
20 A. Yes. This is where I think I accumulated what I could
21 of newspaper endorsements that McCown got. Well, I guess,
ec "The Daily Texan", he got our carry-over from the old
23 underground press days; "The Austin Light", "The Austin
24 American Statesman".
im QR. And these same newspapers, while endorsing McCown, are
Richards - Direct - Todd
endorsing some minorities; 1s that correct?
Yes.
Defendants' Exhibit 26 appears to be —-
That is just. a Bar poll,
Q. Bar poll results. Okay. We have discussed what they
showed. Look, would you, please, at Defendants' Exhibit 27,
which appears to be some campaign literature by Judge
Gallardo. First of all, could you tell us whether this
literature only was distributed in the Hispanic areas, Or was
it distributed throughout the county as far as you know?
A. Well, there are two or three pieces here. The
literature which said, Gallardo's literature, which says he
is the only minority District Judge, was distributed
throughout the community. It was a part of his campaign, 1
think both on television and in the mailings. And the
inference I draw from that is, his campaign handlers had the
same impression we had, Judge McCown's campaign handlers did,
in the Democratic Primary in Travis County, the fact he was a
minority Judge was to his benefit, was an asset and not a
detriment.
BG. All right.
‘A The other thing I guess I put in here was his original
endorsement letter, and I didn't mean to imply by this that
he was —— he had a significant amount of swat in the
establishment law firms as you will see by, I mean he had
24
£5
Richards - Direct - Todd 5-39
high powers in Shannon-Ratliff, I mean these are big
rainmakers. They don't, they are kind of up at the top.
They don't work in the precincts very hard, and I think that
is probably what happened to them.
Q. Defendantse' Exhibit D-28, the first one appears to be an
endorsement letter for Scott McCown, a cover letter. What 1s
the significance about the signatures that you see at the
bottom of that letter?
A. Obviously Judge McCown, Scott, decided to run. To
oppose an incumbent Judge is no small undertaking. It takes
lawyers with a certain amount of fortitude to get out front.
Scott did something I think may have been absolutely
critical, He went to the lawyers Jack Maroney and Broadus
Spivey. In terms of polar points of the Austin Trial Bar,
they reflect them, Jack Maroney being a senior litigator 1n a
very conservative law firm of Brown-Maroney and Broadus
Spivey being fairly well known both as a lawyer, plaintiff's
lawyer and a progressive, and got their endorsements and
mailed his letter. My feeling about it was, that gave him
the kind of credibility among the Bar that would be otherwise
virtually impossible to obtain 1n the sense of opposing an
incumbent Judge.
Q. I believe that without going through it page by page,
this also includes his resume, Judge McCown's resume and
campaign literature that says something about his
24
e5
Richards — Direct — Todd 5-40
qualifications?
A. Indeed, an endorsement letter that contains the names of
David Van Os who was a plaintiff's lawyer in the Dverton
case, I mean representing NAACP; it has the name of Ed
Winter, Jr., who was the principal plaintiff's witness in the
Dverton case. 1t does reflect, 1 think, what 1 am saying
about sort of a progressive community discouragement with
Judge Gallardo.
@. D-29, finally, 1 believe, are a set of endorsements from
various of the endorsement groups in Austin that we have
mentioned, such as the Austin Progressive Coalition, Central
Austin Democrats and so forth. Would it be a fair summary of
these endorsement lists that in each case at the same time
they are endorsing Scott McCown, they are also endorsing
significant numbers of minority candidates for various
offices?
A. I tried to, I got all the endorsement, you know,
literature I could find and put it in, and that is what 1t
reflects.
Q. Finally, a couple of questions to conclude. In Travis
County, focusing particularly on the Democratic Primary,
which is what really determines the outcome county-wide
elections, is there significantly racially polarized -- is
voting in this Primary significantly racially polarized?
A. Not in my opinion.
Richards — Direct =- Todd 5-41
1 Q. And finally, in Travis County, does the Anglc majority
a vote as a bloc so as usually to defeat the candidate of
3 choice of the Hispanic community?
4 A, That is not the Travis County electral history in my
S experience.
lo) MR. TODD: Pass the witness, Your Honor.
¥ THE COURT: Mr. Rios?
8 CROSS EXAMINATION
ki BY MR. RlI0sS:
10 RQ. Mr. Richards, do you agree with the State defendants
11 that what we have now insofar as Judicial elections 1s
12 single-member districts, except that they are one on top of
13 the other like pancakes?
14 MR. TODD: Your Honor, that 1s outside the scope of
15 my direct examination.
16 THE COURT: It is. And we are going to listen to 1t
17 anyway because I don't want to have to wait and let him call
18 him later on. Thank you.
19 By MR, RI{0S:
20 @. Do you agree the State's position on that?
21 A. That is & concept which 1 don't subscribe to.
gc Q. Isn't it true, Mr. Richards, that when you -—- by the way
£3 —
24 A. I don't mean to, 1. shouldn't act like 1 am fencing. No,
25 I don't agree with that.
r=
£3
Richards - Lross — Rios =. 43
Q. Didn't you file some intervention papers in this case?
A. 1 ‘did.
3. On behalf of -—-
A. Travis Lounty District Judges.
Q. Isn't it true that when you filed those papers you felt
that Travis County was different from all the other counties?
A. Did and do. 1 mean I did feel that way, 1 still feel
that way; that's right.
Q. Isn't it true that you actually feel that the other
counties may be in violation, but not Travis County?
MR. TODD: I am going to object to any opinion by
this witness as to the other counties. It is not only
outside the scope, he was only qualified as an expert or
person of knowledge on these counties and the plaintiffs have
never designated Mr. Richards as an expert to give opinions
for their case. And they could have done so and didn't do 1t
by the deadline, and so, I would object to eliciting any
testimony giving any opinion as to any other counties.
MR. CLEMENTS: We join in that objection, Your
Honor, on behalf of Harris County. We have never had an
opportunity to interrogate this witness, he has never been
characterized as a plaintiffs' witness with respect to Harris
County.
MR. GODBEY: Dallas County defendant, Judge Entz,
joins in the objection for the reasons stated.
Richards — Cross — Rios 5-43
MR. RIG: Your Honor, this question 1s based on
some pleadings that he filed in this Court.
THE COURT: He is no longer a party. I am going to
sustain the objection. I think I know how Mr. Richards would
answer your guestion.
MR. RIDS: Thank you, Your Honor.
BY MR. R10S:
Q. Mr. Richards, you have done extensive voting rights
Yitigationy is thet not correct?
A. I have done, yes, 1 suppose that 1s correct.
Q. And you have normally represented plaintiffs; 1s that
correct? ‘
A. Principally, almost exclusively. I representéd the
State of Texas a time or two when I was 1n the Attorney
General's office on the defense side. Other than that, I
think I have always represented plaintiffs.
Q. As a private practitioner, you have always been on the
plaintiff's side?
A. Certainly that is true unless you confront me with some
other case that I don't remember.
Q. Then, as a private practitioner that is knowledgeable
about voting rights litigation, which of the '‘Gingles’
factors are you here to testify on?
A. I don't know. I mean, you heard my testimony and I --
if you want, I mean, I don't know.
Richards — Cross —- Rios Sl ly
1 BG. Let's go through each one.
2 A. With respect to Travis County you mean?
3 Q. Yes, Your Honor, 1 mean, yes, Mr. Richards. OGingles
4 one, whether or not a single-member district should be drawn
S in which minorities would constitute the majority of the
6 voting population. If Travis County were divided into 13
7 districts, do you believe that one district would be created
8 in which Hispanics make up a majority”?
ij MR. TODD: I believe that is outside the scope of my
10 direct.
11 THE COURT: It is. He is here listed as a 'Gingles'
Ie witness.
13 A. It could, 1 think it may be problematic, but 1 mean,
3 14 am not sure it can be done that easily, given the disbursal
Bo of the Hispanic community in particular. I may have a
16 different reaction about the Black communities. The Hispanic
17 community is significantly disbursed in Travis County. I
18 don't really know whether it could be done or not. 1 live in
19 an Hispanic neighborhood and have some sense of the
20 community.
21 Q. So, if 1 showed you a number of voting precincts that
2g could be aggregated in more than 50 percent voting age
23 population in one out of 13 district, you would not be
24 surprised?
£S A. No. I am not surprised by anything.
r=
es
Richards — Crosse —-— Rios 5-45
@. Gingles two, whether or not the minority population
votes as a group. Are you familiar with the concept,
ecological regression analysis 1nsofar as analyzing voting
behavior?
A. l am familiar with it.
Q. In fact, isn't that the kind of analysis that was done
in the Ranjel case in which you were a plaintiff's attorney?
A. It was the kind of analysis that was done.
Q. Did you do any analyses in this case 1nsofar as District
Court elections?
A. Did I personally do any analyses?
Q. Yes.
A. I .dig analyses which I think happened to be relevant,
which are how the voters vote. But I did that analysis, 1
did not do a regression analysis.
Q. You did not do an ecological regression analysis?
A. 1. did not.
Q. And that analysis is commonly done in these type of
cases to measure polarized voting?
A. It ie one, it clearly is, yeah, it clearly 1s. Ilo-think
there are other measures that are probably more important,
but it is clearly done, and the Courts obviously subscribe to
it.
QR. Let me recall your attention to Defendants' Exhibit 21.
A. l have 1t. I can'see 11%. Go ahead.
Richards — Cross — Rigs S-46
Q. Jsn't it true, Mr. Richards, that if there had been a
single-member districts, a single-member district comprised
of most of these precincts that are colored in yellow that
Mr. Gallardo would have won 1n that district?
A. Well, I am not sure.
Q. You have got some precincts here that are fairly low in
population, but I mean, obviously, those places that are
carried yellow, 1f that 1s what you are asking me. Some of
those are black, some of those are Hispanic.
Q. Isn't it true that this exhibit suggests that Mr.
Gallardo won that area?
A. He clearly won that area, no question about that. As
vou know, he lived a county andy from it, virtually, but he
—
carried that area.
Q. But the will of that area was thwarted by the rest of
the election results; is that not correct?
A. That seems a bit strong. If you want me to state there
was a cohesion around that, I think it is cohesive, 1f that
is what you are asking me.
Q. Isn't it also true that Mr. Garcia, who was algo running
for County Court, who was running for County Court at Large,
also carried these precincts?
A. Yes. There are some differences in what he carried, but
he clearly carried -- there are seven Hispanic boxes in
Travis County and Alberto Garcia carried all seven of those
c4
2S
J
Richards - Cross —- Rios S—¢
boxes.
Q. len't it true that Mr. Garcia ‘and Mr. Gallardo's
election results were very parallel?
A. I took a look at that, and the answer 1s, there were a
number of similarities. There were some, I thought,
surprising dissimilarities. But certainly within the
Hispanic boxes, they were closely parallel, I mean, they were
virtually the same.
. "All right. And then l will call your stiention to
Defendants' Exhibit 23a. You don't have to.refer to it, 1
can just tell you that that is the newspaper ad in which
Judge -Garcia was also endorsed.
A. Yes.
R. As well as Mr. McCown. find isn't it true that Judge
Garcia lost?
A. He lost.
R. And again, in Judge Garcia's case, an instance, he was
also the will of the minority community?
A. Yes, that is clear.
Q. Isn't it true that vou were a plaintiff's attorney in
the White—-Register case and Graves and Barnes case”
A. Yes, that 1s true.
Q. And isn't it true that in those cases the at-large
voting in Travis County was found to be in violation of the
voting laws?
24
23
Richards - Cross —- Rios S-48
A. Yes, we successfully challenged the at-large election of
legislators in Travis County in 1973.
Q. len't it also true that vou testified on behalf Of the
plaintiffe in the Overton case”
A. Yes. Well, marginal.
Q. Well, you tried?
A. I tried.
Q. Isn't it also true that in that case the plaintiffs were
trying to declare at-large voting for city elections 1n
Austin to be a violation of the Voting Rights Act?
A. That's correct.
Q. Isn't it also true that in that case the Judge found
that Mexican—-Americans were politically cohesive and voted as
a bloc?
A. Yes, he did. I don't think I said anything different.
Q. And, isn't it true that that was happening 1n the
1980's, that your testimony in that case —-
A. I think I was proffered as a witness, 1t seems to me,
about 1983, somewhere around in there.
Q. That was after the -—- well, when I was 1n your
deposition, you told me that there was a transformation that
you underwent in 1974 insofar as at-large voting for
minorities in Travis County. That was after the Richardson
transformation?
A. Well, yes, I suppose that is right. I did not testify
24
ES
Richards = Cross — Rigs S-49
--— well, you don't have the record before you. 1 did not
testify in Overton on the questions of polarization.
Q. lent it true, also, Mr. Richardson, that Scott Mclown
is a good friend of yours?
A. Yes.
Q. Isn't it true that you hired him at the AG's office?
A. Well, I guess General Mattox hired him. I suppose I was
instrumental 1n 1t, sure.
Q. Isn't 1t also true that as far as his campaign 1s
concerned you provided free office space for him?
A. I did, indeed.
@. About five months?
A. 1 did, indeed, ves. True.
Q. Isn't it also true that in fact you considered being law
partners?
A. Yes, I guess that 1s true, too. I mean, we are close
friends and have been for some time, no question about it.
@. You were very well aware of the fact that Scott McCown
challenging Mr. Gallardo would have some racial implications;
1s that not correct?
A. Well, I don't know what, I am not sure what you mean. I
was aware that i1t was an unfortunate perception, I thought,
sure, that people would perceive this to be. Yeah, sure.
Q. Isn't that based on your belief there 1s polarized
voting in Travis County?
=e
ES
Richarde — {ross = Ripe 5-50
A. No, not at all. That 1s just how people —-- my
perception was, as I told you, or thought I said 1t was, that
there are a number of voters in Travie County and 1 am one of
them who, 1f I am given an equal shot at two candidates, one
has a Spanish surname and one has an Anglo surname, I am
going to vote for the Hispanic surname. I think that is a
significant portion of the Democratic Primary in Travis
County. And my perception was, Scott was going to run 1nto
that and I told him that he was going to have to get, the
only way to overcome that was to get the endorsement of
progressive organizations. And he got them, and I think he
was able, then, to overcome what I think I testified to was a-
proclivity to vote for a minority candidate among the White
progressives in Travis County.
Q@. Would you agree with me that in Travis County, an
Hispanic would not be able to win county-wide unless he had
the White progressive vote behind him?
A. He had one, I am not sure what you are saying. Your
figures should suggest that he has got to have some votes
other than 14 percent, or whatever figures you came up with,
you put in evidence as to this, if you are going to win. 1
guess you come from either direction.
Q. Isn't it true that in fact Judge Gallardo is still a
Judge and is sitting in Court?
A. He is, my impression is, he is sitting as a visiting
24
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Richarde —- Lross - Rios 5-51
Judge, correct, under the Texas Statue, yes.
Q. Isn't it also true, or maybe you don't know, that he has
in fact been offered a teaching position at Harvard Law
School?
A. I am not aware of that.
QR. Actually, isn't it true that, whether you and 1 like
Judge Gallardo --
A. I like him, frankly.
RQ. Or felt that he was a good Judge, he was in fact
supported by the Hispanic community?
A. No question about it.
QR. Do you know how well Judge Garcia did in the Bar poll?”
A. Terribly.
QR. Both Judge Garcia and Judge Gallardo did badly in the
Bar poll?
A. There are two polls. I shouldn't have answered that,
there 1s a poll Whi is done in terms of performance poll
that 1 think is 'in evidence where lawyers rate performance of
judges. I don't believe Judge Garcia was in that poll
because he had not been on the bench. There 1s a second
poll, which is.a poll in effect, a straw poll of how lawyers
are gong to vote, Whi Gh is different. And that is not 1n
evidence. 1 have it here, and I can tell you that that poll,
that is the straw poll which ig different, Judge Garcia did
very poorly.
24
25
Ul
n Richards — [Cross — Rios 5-
Q. Would you agree with me that people that fill out the
Bar polls are mostly Anglo attorneys, at least 90 percent?
A. They are attorneys of Travis County, and overwhelmingly
Anglo, no question about that.
Q. Wouldn't you also agree with me that the typical voter
in Travis County has absolutely no 1dea how various
candidates did on the Bar poll?
A. No, I don't agree with that. Well, excuse me. I think
that —-' no, 1 don't agree with that.
Q. You think that a typical voter in Travis County would
know how Judge Gare. a or Judge Gallardo did in a Bar poll
when they go to vote?
A. I mean that is asking an awful lot. I will say about
Travis County that these judicial elections, particularly in
‘88, were very intense. There were television ads which said
Judge Garcia ranked last, I mean Judge Gallardo was last in
the Bar poll. If people just listened to television, they
had it. There were endorsement things that said it all.
There was an enormous campaign around that issue, so I would
assume that most voters who voted had some information on
that, frankly.
@. You would also agree with me that, and I believe you
testified to this, that in Travis County, the Democratic
Primary is the election that ta banminas who gets to sit in
office?
Richards — Cross - Rios 5-53
A. Yes. Yes, my perception is that the Democratic Primary
has been determinative of the outcome of judicial elections,
8s well as all others in Travis County.
Q. So, then, you would agree with me that in order to
measure voting behavior in Travis County, you would look at
the Democratic Primary?
A. Yes. You could look at the General Election, I think
you will see the same results.
MR. RIDGE Your Honor, I would like to offer an
exhibit here, label it as TR Exhibit 1B, which is 'a list of
all contributors to the McCown campaign and the voting
precincts that they lived in, and whether or not their voting
precinct was mostly White or Hispanic.
MR. TODD: I have never seen this before, none of us
have. But in the spirit in which stuff has been received 1n
this trial, I guess we don't have an objection.
BY MR. RI0S:
Q. 1 just have one question on this, from this particular
exhibit, Your Honor. Would you flip to page 12, please, Mr.
Richards? Page 12 simply summarizes the overall exhibit that
says that contributions from non-minority, I mean, non-
majority Anglo precincts is $500.00, total contributions from
majority Anglo precincts is $31,980.50.
MR. TODD: VYour Honor, that exhibit speaks for
itself.
5 PR AE SY XS NT
Richards — Lross — Rios 5-54
A. That surprises me. Oh, 1 see. I thought you had told
me I had given $1,000.00, and I know I am in a non—-minority
precinct. I am the only one, right. Okay. I am in a non-
Anglo precinct.
RQ. Is that about how much Mr. McCown spent on his campaign?
A. I have looked at the numbers, and the answer 1s no, I
don't think it. is. I mean, this 1s not complete. I think
both —— 1 mean, 1 looked at it, did we put it in? The two
candidates spent essentially the same. They both spent about
$70,000.00. And 1 think if you will look at the Gallardo
contributions, you will find, 1 suspect, that 73 percent of
those were from Anglo precincts, too, frankly, the
establishment Bar.
MR. RI1DSG: Pass the witness, Your Honor.
REDIRECT EXAMINATION
BY MR. T0DD:
Q. 1 just have this. Mr. Richards, isn't 1t correct that
your thesis in the Dverton case, your basis for advocating
single-member districts and discontinuing the at-large system
ics based on a different thesis than what 1s the controversy
in this trial; wouldn't that be a fair characterization?
A. I think I testified on deposition that it was my premise
that the creation of the at-large, majority place system, I'm
sorry, majority place system in Austin in 1932 or three was
motivated by anti-Black considerations, and so, it was, 1n
Richards - Redirect - Todd S- 55
effect, void, under the Fourteenth Amendment test.
@. And the burden would be on the defendant, 1f that were
true, if that were the finding that it had been, that the at-
large City Council system had been deliberately created to
thwart a minority, then the burden would have been on the
defendants to justify 1ts maintenance rather than the burden
on the plaintiffs to show why it should be discontinued;
isn't that correct?
A. I'm not sure, it may be the thing had to go out the
window totally, no matter what, if 1t in fact had that root.
Q. But your thesis for supporting or eliminating the at-
large City Council system was not based on the 'Gingles'
factors, was it, in Qverton, your own?
A. I was not proffered as a witness who was going to
testify, as 1 understood it, 1 was not proffered as a witness
that was going to testify to polarization.
Q. As a matter of fact, you wound up testifying very little
in that case?
A. Yes, I sure did.
MR. TODD: Right. Pass the witness.
THE COURT: How do you classify testifying very
little?
A. Everything I said, Judge Nowlin sustained objections to
it.
THE COURT: That is one way to have it. You may
5-56
step down. Thank you very much.
MR. TODD: Your Honor, the defendants call Judge
Louis Sturns.
MR. CLOUTMAN: Judge, while he is coming up, I want
to note for the record that we are all being restrained here
not asking Mr. Richards questions while he 1s under oath.
MR. TODD: Let the record show Mr. Richards formerly
was with the law firm that Mr. Cloutman now has office space
in and practices very ably for.
THE COURT: Raise your right, please.
(Witness sworn.)
THE COURT: Have a seat right there, please.
LOUIS E. STURNS, WITNESS, sworn
EXAMINATION
BY THE COURT:
Q. Tell me your name, where you live and what you do,
please.
A. I am Louis Sturns from Fort Worth, Tarrant County,
Texas. I am Judge of Criminal District Court No. 1.
R. All right. Give me a little bit about your education
and your practice, how long you have been a Judge.
A. Okay. I graduated from Wichita State University 1n
1970, from the University of Kansas School of Law in 1973.
practiced law in the military as Army Judge Advocate for
three years, late '73 to late '7é6. I practiced law in Fort
Sturne ~ By the (Court S=57
1 Worth with 3 man by the name of Clifforg Davis, from 1976 to
2 1978, 1 believe 1t was. I was appointed Judge of Criminal
3 District Court No. 2 by Governor Clements in the early part
;’ of 1783. The appointment was blocked by the Senate. In
5 fact, Dave Richards was the lawyer who represented the State
b in 8 lawsuit that 1 filed against the Sénate. 50, 1 served
7 on the bench there from January of '83 to May of 'B3, and
8 then I went back to the law practice after my confirmation
hi 4 was blocked. I ran for the position of Judge of Criminal
10 District Court No. 1 in the 1986 election, and 1 won that
i} election and was sworn in on January lst, 19B7.
12 THE COURT: All right.
13 | DIRECT EXAMINATION
14 BY MR. TODD:
1S Q. Would you tell us a bit about your professional and
16 civic organizational activities in Fort Worth?
17 A. Well, when I first came to Fort Worth, I was the
18 president of the Fort Worth Black Bar Association, one of the
19 founding members of it. Later, I was the Chairman of the
20 Board and one of the founders of the Metropolitan Black
21 Chamber of Commerce. li was active with the Minority Litizen
ec Leadership Council. I served on the board of the West Texas
23 Legal Services Foundation Corporation in the late '70's and
24 early '80's. 1 was the secretary of that board at one point,
gS and later 1 was the treasurer of the West Texas Legal
24
23
Sturns~ Direct — Todd 5-58
Services Board. Numerous other organizations I was 1nvolved
in.
Q. Have you ever received any significant awards”
A. In, 1 believe 1979, I received the local NAACP
Humanitarian Award for work I had done on the redistricting
lawsuit.
Q. “Which side”
A. I represented the plaintiff in a case styled Bagby
versus Moncrieff that dealt with the redistricting of the
Tarrant County Commissioners' Court lines. I also that year
received the Fort Worth Minorities Citizens Leadership
Council Award for civic service.
Q. In 1986, when you -- tell me this, why did you decide,
both in '83 and '8&6, to become a District Judge?
A. In '83, it was basically a group effort. Members of the
Fort Worth Black Bar: Association were concerned that we
didn't have any representation in the Judiciary of Tarrant
County. So, in fact, it was probably about 1980, '81, we
formed a Judicial Recruitment Committee to recruit persons
who would be interested in the Judiciary. And we started, at
that point, trying to lobby the Governor, try to get a Black
appointed to the position of Judge in Tarrant County. I
believe, initially, we were trying to get a Judge appointed
under the Briscoe administration. And after Bovernor
Clements was elected, we again submitted a list of names to
24
es
Sturns '—- Direct. - Todd 5-59
his appointment secretary, and I was appointed then. So,
once that appointment occurred, I got interested in the
Judiciary by that time, and so, just sort of a natural
progression for me later on, to decide toc run for office.
Q. When vou ran for office in 1986, which party, in which
party did you run?
A. I ran as a Republican.
Q. Why did you chose to run as a Republican?
A. Well, in '82, I think was the first year that I actually
voted in the Republican Primary. And I made a, I guess,
philosophical decision to, or political decision, either way,
to do that, based upon my belief that it wasn't very wise for
all members of the Black community to be 1n one political
camp. I just felt like to be more effective, we need to have
some impact in both political parties, even a party that you
felt was not necessarily acting in your best interest. To
change it, I thought you had to get inside that party and
then be a voice for changes there. So, it was a political as
well as a philosophical shift in my attitude that really
occurred in '82, 1 guess.
Q. Okay. In the 1986 Republican Primary, did you have an
opponent?
A. l did not.
Q. Okay. And in the General Election, did you have an
oppanent?
r=32
25
Sturns = Direct —- Todd 5-60
A. 1 dig.
Q. Was he a Democrat, he or she?
A. He was a Democrat.
Q. And what was the race of your opponent in the General
Election in 19847
A. He was a White male.
Q. Okay. And did you campaign 1n the Black community 1n
the General Election 1n 19867
A. 1:did.
Q. What sorts of things did you do to campaign in the Black
community?
A. Well, I realized the.traditional routes were close to
me, so I didn't actually campaign through the established
political groups. I campaigned with civic groups, the Black
Chamber of Commerce, where I had a lot of friends, I
campaigned in churches very extensively. I probably went to
three or four churches each Sunday and was able to receive
support from individual Black ministers. I was not able to
garner the endorsement of organizations such as the
Interdenominational Ministerial Alliance, Baptist Ministerial
Alliance, but l was able to get individual support from
individual black members based upon my campaign in their
churches.
@. Historically, how important have churches been 1n the
political campaign in the Black community?
24
ES
#1)
Oo
Sturne — Direct — Todd
A. Well, somewhat, somewhat very significant. But 1 think
historically, Black churches have always aligned themselves
basically with the political organizations, be it the
Coalition of Black Democrats, Precinct Workers Council,
whatever. Churches have usually followed their lead in
Tarrant county.
Q. What message did you bring to the voters in the Black
community when you campaigned there”?
A. Well, I campaigned on the theme that, one, that people
in the Black community were affected very heavily by crime,
they were tired of crime, I would be a Judge who would take a
fairly strong position against crime. I also campaigned on
the theme that there was a lack of Black Judges throughout
the state and we needed examples for the youngsters and I
would be an example. In addition, I pointed out to them that
if you are going to begin to stop the practice of prosecutors
using preemptory challenges in criminal cases to exclude
Blacks, you probably need to have someone who would be
sensitive to that practice, and who would recognize it for
being what it was, and I would be such a Judge who would
recognize it when I saw that type of exclusionary practices
taking place in criminal courts. So, those were the kinds of
things that I discussed, and I think the congregation was
fairly receptive to 1t.
Q. What kind of reception in the congregations and
=
ES
wn
| co
n Sturns — Direct — Todd
elsewhere, what kind of reception did you get from the Black
community when you delivered these messages”?
A. Generally applauses. Generally warm receptions.
Usually at the end, people say, "But why Republican?”
Q. How well did the warmth and applause translate into
votes in November?
A. My initial strategy was that if 1 could get 10 to 15
percent of the Black vote, 1 thought I could win the
election. And basically, that is what 1 received, somewhere
between 10 and 15 percent of the vote on the Black precincts,
Black boxes.
QR. And how well did you do in the Black community?
A. I did extremely well in Arlington, 1n the mid-cities
community. White Republican voters voted pretty much right
down the line for all of the candidates who were Republican
candidates, and that included myself as well as another
fellow who ran for Judge of Criminal District Court No. 4,
another Black Republican.
Q. To what do you attribute your 15 percent, your lower
showing in the Black community?
A. Well, traditionally, Blacks have voted straight
Democratic, straight Democratic ticket. And there was a
heavy campaign in Tarrant County urging the voters to vote
straight Democratic ticket. I think we went to the extent of
radio messages by Martin Luther King, III, or someone, Martin
24
2S
Sturns - Direct - Todd B=~63
Luther King, III and some others who came there and told
voters to vote straight Democratic ticket. So that was the
problem there.
Q. Currently in Tarrant Lounty, by and large, in Judicial
elections, what determines the outcome?
A. ] think 3t ig strictly a matter of political party.
QR. Okay. What happened to, for example, the Democratic
Judges running county-wide 1n 19887
A. All of the Democratic Judges in 1988 in Tarrant County
lost the election.
Q. Without respect to race?
A. Without respect to race. Of course, there was only one
Black in there, but he lost also.
RQ. Along with a number of Whites?
A. That's correct.
RQ. And recently, has there been an event that indicates the
importance of political affiliations if you expect to be
elected as a Judge?
A. About two months ago, there was a major shift in Tarrant
County in that seven of the Democratic Judges changed over to
the Republican Party.
MR. TODD: Pass the witness, Your Honor.
THE COURY: Mr. Barrett?
CROSS EXAMINATION
BY MR. GARRETT:
Sturns — {ross — Garrett S—ih
1 @. Good morning, Judge Sturns.
2 A. Good morning, Bill.
3 Q. Judge, I heard your testimony in that back 1n the late
4 ‘70's, you were on the board of directors of West Texas Legal
5 Services: is that right?
é6 A. That's correct.
7 Q. And at that time I was employed as litigation director
8 there; is that right?
Q A. That 1s correct.
10 RQ. And we filed a voter's rights suit against the City of
1} Abilene. Did you support that effort?
ied A. l.did.
13 @. The reason being that we felt that, at least 1n that
14 jurisdiction, that minorities weren't getting a fair shake;
15 isn't that right?
16 A. That's correct.
17 QR. Okay. Are you familiar with Judge Fred Davis of the
18 17th District Court in Tarrant County?
19 A. Yes, 1 am.
20 Q. Is he a White man?
21 A. White male.
2c RQ. What I thought. You mentioned that you were, I believe,
23 plaintiff's attorney in a suit, Bagby versus Moncrief; is
24 that correct?
25 A. That js correct.
24
25
Sturns — Cross — Garrett 5-65
Q. As I understand it, the purpose of that lawsuit was to
redraw the district lines for the Tarrant County
Commissioners! Court; is that. correct?
A. That'ie correct.
GQ. And the reason being that the plaintiffs, at least in
that case, felt the lines were drawn such that a Black or
minority could not be elected to the Tarrant County
Commissioners' Court; right?
A. That 1s correct.
Q. And you were successful in that lawsuit, were you not?
A. The lawsuit was successfully conc ludiod through a
settlement between the plaintiff and the respondents 1n the
lawsuit. The Commissioners ' Court lines were redrawn. There
were some other things we got that we did not plead for. And
that was one of the reasons why we settled the lawsuit in the
manner that we did.
. And Mr. Bagby, for the record, is a Black male; 1s that
correct?
A. Right. He was a Black male, formerly a member of the
City Council of Fort Worth.
Q. And he, subsequent to that settlement, ran for the
Commissioners' Court; did he not?
A. No, he did not. His wife did.
Q. There was a Black elected shortly after that; isn't that
correct?
SATE SA FE SR AR
Sturns —- Cross — Garrett 5-66
A.: Right. The lawsuit wasiconcluded in '7%9 or '80. We
didn't run anybody for the Commissioners’ Court 1n the next
election, which I believe was '82. The first Black that ever
run for the Tarrant County Commissioners' Court was Mr.
Bagby 's former wife, Dionne Bagby, who ran last year in “88.
She was elected.
Q. She ran from primarily a minority precinct or section of
the Commissioners’ Court, didn't she?
A. Well, if you mean is that a district primarily inhabited
by minorities, yes, that 1s true. But: 1 think our voting
strength was both minority and, what 1s the word you used
today, progressive Democrats.
RQ. I'm not sure 1 know what that: is.
A. I'm not sure either.
a. She, as a matter of fact, beat the White former Mayor of
the City of Fort Worth, didn't she, Woody Woods?
A. That is correct.
@. Okay. Judge Sturns, you are not here to tell us, are
you, that you don't believe that in Tarrant County voting 1s
along racial lines?
A. 1 am here to tell you that Tarrant County votes along
party lines, period.
Q. Isn't it a fact, Judge Sturns, that in Tarrant County,
as in most of Texas, about 95 percent of the Blacks are in
the Democratic Party?
24
25
Sturns - Lross —- Garrett B~bh7
A. That 'is correct.
Q. So, whether we say Democrat or whether we say Black, we
are talking about the same group of folks; 1sn't that about
right?
A. That 1s true.
Q. I] believe you mentioned that in your race with Mr.
Goldsmith, who was a White Democrat male; correct?
A. That 1s correct.
@. That you believe that you got in the range of 10 to 15
percent of the Black vote?
A. That's correct.
RQ. And I believe Defendants' Exhibit No. 39, which has been
prepared by the defendants' expert in this case, Shiivs that
you got about nine percent of the Black votes, TI don't
believe you would dispute that, would you?
A. No, 1 wouldn't.
R@. And it further shows you got about 57 percent of the
White vote; does that sound about right?
A. That sounds about right.
Q. Had you been running from a single—-member district that
had a substantial proportion of its voters being Black, you
wouldn't have won that election, would you, Judge Sturns?
A. Not as a Republican, 1 wouldn't have.
Q. If you run as a Democrat, you would have a better chance
in the Black community, wouldn't you?
Sturne — Crosse = Garrett 5-68
A. I would.
Q. At least in that election to the bench, you were not the
choice of the Black voter; isn't that right?
A. Well, put 1t this way. I'm not sure that -—- l guess if
you look at the raw numbers, I wasn't. But again, a large
percentage of the Black voters, I talked with folks who
actually thought they voted for me. They thought when they
went in and pulled the Democratic lever they voted for me.
Q. Well, there is a reason for .that, isn't there?
A. So, 1'm not sure if I was the choice of a large percent.
Q. Well, perhaps the inadvertent non-choice, put it that
way. There is a reason for that, isn't there, Judge 5turns?
A. There sure 1s.
Q. The reason is that generally when a voter goes to vote,
if he pulls the Democratic lever, he may well believe that he
is voting for the minority candidate; isn't that right?
A. That seems to be the case.
Q. You are familiar with Wayne Salvant, are you not?
A. I am
Q. And for the record, he is a Black male lawyer 1n Tarrant
County; is that correct?
A. That's correct.
Q. And he ran the same year, 1986, that you did; is that
right?
A. That's correct.
24
ed
Sturns — Lross — barrett 5-69
GQ. He ran against Joe Drago; is that correct?
A. That's correct.
RQ. And he is a White male?
A. Yhat's right.
RQ. And 1s now Judge Drago”?
A. That 1s correct.
QR. Now, Mr. Salvant lost?
A. That's right.
Q. The same year that you won?
A. That's correct.
G5. What was the difference?
A. Well, 1 think the difference between the effort that 1
put up in my election as opposed to what Wayne Salvant did.
I campaigned harder than Wayne. I spent more money than
Wayne. Wayne did not run any newspaper advertisements, he
did not put his campaign posters up until the last two or
three weeks of the election. I think it was the difference
in that, and also, 1 think 1 received a larger percentage of
the votes out of the Black community because I had been more
active in the Black community, politically and civically,
than Wayne had. And 1 think that I brought to the race more
name recognition than Salvant in the entire community.
Q. And the reason for that, isn't it, Judge Sturns, your
brother, Vernell Sturns, was Assistant City Manager, City of
Fort Worths is that correct?
r=3s
eS
Sturne — Cross —- barrett 5-70
A. That's correct.
Q. And he was passed over by the White-dominated Fort Worth
City Council for City Manager, wasn't he?
A. That he was.
Q. And as a matter of fact, that happened shortly before
your 1986 election; jen’'t that correct?
A. Well, not that. He was also named interim director of
DFW airport during the situation, turmoil out there. He was
also passed over by the airport board for the position,
permanent director of DFW airport. That happened prior to
the election. So, I did get some name recognition from
Vernell's troubles. Also from my troubles in '82, however.
Q. Don't you think that as a matter of fact, some of the
votes for you could be considered to be retribution, if you
will, for the trouble that the City of Fort Worth put your
brother through?
A. Well, 1 hope so. 1 hope they do it again next year.
Q. Well, I hope you are right. Mr. Salvant used to be a
Democrat, too, didn't he?
A. Yes, he did.
Q. He switched parties to try 1t as a Republican?
A. I think Wayne actually switched parties in '86, yes.
Q. Just before the election?
A. I think that is correct.
Q. And defendant's exhibit No. 39, again, prepared by the
24
25
wn
Sturns: = Lrogss — Barrett
State's expert, is going to show that Mr. Salvant only got
three percent of the Black vote; does that sound about right?
A. 1 didn't know it was that low. He would be disappointed
to know that.
Q. 1 am afraid he is Tixing to find out. And apparently
got about 35 percent of the White vote.
A. Okay.
@. Does that sound right? Judge, how many district judges
are there in Tarrant County?
A. Twenty three.
RQ. Twenty three. And of that number, how many Black
district judges are sitting?
A. Two, now.
Q. You and Mary Ellen Hicks?
A. Mary Ellen Hicks.
QR. She was elected as a Democrat; is that correct?
A. That is correct.
R. Judge Sturns, don't you believe if, assume with me for a
minute if, Tarrant County were divided into that many similar
districts, that there would be more than two Black district
judges sitting on the bench in Fort Worth?
A. Well, 'I'mnot sure. As 1 read the information, if we
are 10 or 11 percent of the population in Tarrant County,
that being Black, and if you divide between those districts,
that may mean we are limited to just two District Courts.
Sturne:.— Crosse — Barrett 5-72
However, on the other hand, I believe very strongly that the
Republican Party in Tarrant County 1s receptive tec Blacks,
and I believe that we can elect four or five, 1f they would
at least consider running as Republican. Wayne Salvant lost
by only a few thousand votes, and Anglo voters definitely
voted for him. So, I think we may be unfairly limiting
ourselves in Tarrant County, merely because of the tradition
of voting in an affiliated Democratic Party.
Q. Your election didn't really provide a test of the
actions of the White Republican voters, because 1n the
Republican Primary, you didn't have an opponent, did you?
A. That's correct.
MR. GARRETT: I will pass the witness.
MR. TODD: I have nothing further for this witness,
Your Honor.
THE COURT: Okay.
A. May I be excused, Judge?
THE COURT: You may. Did you make the convention in
Dallas?
A. 1 did, Your Honor. And l.might add, 1 had hair before 1
took the Judicial =pot.
THE COURT: You had what?
A. I had hair before I took the Judicial spot.
MR. GARRETT: Judge, for the record, I had hair
before I started doing voting rights lawsuits.
24
29
ESR LI PE ET FR AE TE
wn
1 ~J
J)
THE COURT: Is that part of. 1%? I was looking, and
even the rest of these folks, that must have something to do
with it.
MR. GARRETT: At least on the plaintiffs' side. I
noticed this 1s a hairy group over here.
THE LOURT: I have had a few voters' rights cases,
00. And we are going to take about 10 or 15 minutes. Thank
(Brief recess.)
(Open Court.)
THE COURT: All right. Call your next witness.
MR. TODD: Your Honor, before Mr. Hicks examines
Chief Justice Phillips, I have one or two housekeeping
matters.
THE COURT: All right.
MR. TODD: One, 1 would like to move for the
admission of the exhibits I discussed during the prior
testimony. l listed those for the Court's clerk, 1 can do it
again, if you want me to. Then I would move for their
admission.
MR. RI1DS: No objection.
THE COURT: They will be admitted.
MR. TODD: I would like the Court to take Judicial
notice of the fact in 1867, Congress extended Federal Court's
jurisdiction to hear habeas corpus hearings for prisoners In
24
25
State Courts.
THE COURT: I will take notice of that.
MR. TODD: Initiating the era of prisoner pro se
litigation, which has vastly enriched the Federal docket.
THE LCOLIRT: If you would, please.
MR. RINGS: Your Honor, also the exhibit I called TR-
Exhibit 18, should actually be called TR-Exhibit 20.
THE COURT: AQll right.:. Mr. Hicks?
MR. HICKS: The State of Texas calls Chief Justice
Tom Phillips.
THE COURT: Raise your right hand, 1f you would,
please, sir.
(Witness sworn.)
CHIEF JUSTICE THOMAS R. PHILLIPS, WITNESS, sworn
EXAMINATION
BY THE COURT:
Q. I know who you are and what you do, but for the record,
if you would, please, tell me who you are, what you do and a
little about your background, and when was the last time you
were in Midland.
A. Thomas R. Phillips. Chief Justice of the Supreme Court
of Terns. I am a native of Dallas and graduate of 1ts public
schools, went to Baylor University, Harvard Law School, and
briefing attorney for the Supreme Court of Texas, an attorney
at Baker & Botts, District Judge in Harris County from 1981
24
2%
Phillipe = By the {Lourt S=75
to 1988, and thereafter 1n my current job. I was, l:think 1
was last in Midland the week before the 1988 General
elections, but I don't remember for sure.
Q. I believe —— we don't have many calls out here from
chief judges, except in election years, as a matter of fact.
A. Well, fortunately for me, 1t is again an election year.
Q. All right. And for the record, the last time 1 bDelieve
that you were here, unless you snuck in sometime when I
didn't know it, Chief Phillips, we were at a Midland Bar
Association function and sat by one another and you made the
address. And you made a remark to me, we have got to discuss
something else, I am a defendant in your Court. And we did
not discuss the case. Thank you. Go ahead.
A. That's correct. I did sneak in after that, though.
DIRECT EXAMINATION
BY MR, HICKS:
Q. But didn't discuss the case?
A. Never discussed the case.
Q. Chief Justice Phillips, would you please direct your
attention to your duties as the presiding Chair of the
Judicial District Board and tell us what the Judicial
District Board is and what your views are in that regard?
A. The Judicial District Board was created by the people of
Texas by Constitutional Amendment in 1983. It is composed
almost entirely of ex-officio members with one appointee from
24
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Phillips. — Direct - Hicks 5-75
the Governor. Ite duty 1s to make recommendations to the
Legislature about necessary changes 1n Judicial Districts,
and after each biennial census to make such recommendations,
and if the Legislature fails to redistrict the Judicial
Districts of the State to make such districting on 1ts own
motion.
@. Are their any inhibitions, legally speaking, on the
Judicial District Board's powers to carve up Judicial
Districts?
A. Yes, there are. I didn't know I was going to be asked
this. I don't have the Constitution 1n front of me. I
believe we cannot put a small county with a large county so
as to swallow the small county up. And that 1s phrased 1n a
certain way. We couldn't put Montgomery County with Harris
County, for instance. We cannot divide a county 1nto
districts that are smaller than county-wide, unless there has
been prior approval from the voters in a referendum. And
from the legislative history, that is voters in that county,
not voters in the entire state.
Q. Can you tell the Court what kind of SoRinistraive
duties you have as Chief Justice of the Supreme Lourt of
Texas?
A. In particular, administrative duties with regard to the
administration of justice at the District Court level of
Texas. The Supreme Court is Constitutionally responsible for
ul
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Phillips. vo Direct = Hicks
the efficient administration: of Justice in the state and for
promulgating rules of procedure in evidence and
administration and such other rules as the legislature may
from time to time prescribe, or the Court may from time to
time think necessary. And so, we do promulgate a number of
rules that govern the conduct of District Courts 1n the
procedure of the cases and in the evidence and how they are
to administer their work. In addition, I have a number of
statutory duties that relate tangentially to the operation of:
the District Courts in assigning certain judges from outside
one administrative district to another and certifying former
and retired District Judges as eligible to sit, 1n certifying
District Judges tor disability purposes and for retirement
purposes.
Q. Do you have any views with regard to either, whether you
think it is a good idea or a bad idea, to enshrine in the law
the current system where you cannot elect State District
Judges in Texas from smaller than county-wide areas?
A. I think it is a good idea not to elect district judges
from smaller than county-wide areas. I am not sure I have
any particular views whether that be Constitutionalized or
statutory or merely customary by statute, but it 1s not done.
Q. Why do you think it is a good idea to require at lesst
county-wide elections?
A. Let me, let me phrase this a little bit different.
24
25
Phillips - Direct — Hicks 5-78
Q. All right.
A. In my Opinion, the district Judge should not be
responsible to the voters over an area that te dmial lar than
that area 1n which the district Judge exercises primary
Jurisdiction. If we wanted to go to a system where the judge
had primary venue responsibility over an area smaller than
the County, I don't know that I would have any objection to
electing judges from a smaller than a county. And our
Justices of the Peace do ordinarily have jurisdiction
primarily over a portion of the county, but as long as we are
going to elect Judges, as long as Judges are going to be
responsible for all the cases in the county and are going to
exercise that kind of power and authority over persons lives
and as long as they are going to be responsible to the
voters, I believe they should be responsible to all the
voters of the county, or a multi-county district.
RQ. Tell us, please, how that fits with what I think are
your fairly well-known public statements about the problems
with the current judicial system in Texas. You have, I
think, expressed disagreement with some of the current, some
aspects of the current system; correct?
A. 1 have long been a critic of our current partisan system
of electing Judges.
R. Can you just briefly run through what your criticism has
been in public statements, and then we will come back to how
24
25
Phrllips — Direct — Hicks 5-79
your statement about county-wide elections fit 1n with that.
A. I object to judges at any level having to run on a
partisan label. I object, 1. reject '-—- 1liobject to the
Legislature's failure to make any distinction between
Judicial elections and elections for political offices 1In
terms of, we have the same election dates, the same length of
campaign, there are no limits on who we can take
contributions from or the amount we could take them in, that
are any different from the limits put on candidates for what
I regard as more overtly political offices. I would prefer
some system whereby Judges ran in retention elections on a
non-partisan ballot. And whether, they run in those retention
elections after initially being appointed in a merit
screening process or whether they run in the retention
elections after fhitially being appointed or having to run
for one or more elections in an open race is a matter of some
indifference to me. But I believe that judges, after they
have been in office for a period of time, should face the
voters in a retention process.
Q. Well, how does that explanation of your position, views
on the current system, fit with your statement about courts
of county-wide jurisdiction, if you are going to have county-
wide primary jurisdiction, to be subject to approval or
disapproval of the voters ballot-wise; how does that fit?
A. Well, my objection to our system does not in any way go
Phillips. — Direct —- "Hicks
to judges being responsible to the voters of their entire
district, That is not one of the problems with our current
system, In my opinion. I think there are a lot of other
things that need to be fixed, but not that.
Q. Given your criticism of the current system, 1n your
view, does it follow that any alternative 1s a good
alternative to the current system?
A. No . We could have a worse system than we have now.
Q. Can you describe one or two of those?
A. North Carolina has a worse system. They go the other
direction from what some people are proposing to do here and
select judges in a primary by district, state trial judges,
but then they all run at large in the General Election. As 1
understand the history, this is only hearsay, this was
initially devised by Republicans during the Reconstruction,
so there would be only Republican judges in the state and
when the Democrats took back over in the 1870's, they decided
what was sauce for the goose was sauce for gander and devised
a system which for over 100 years gave North Carolina only
Democratic judges. Now, a few Republicans have been elected
and nobody knows what to do. 1 think they are in litigation
over this very point.
Q. I think you were in the courtroom when Mr. Richards was
asked whether he agreed with our State defendant's position
that the district judges in Texas are already elected from a
20
24
es
@ Phillipe =~ Direct —- Hicks Sr
single-member district; did you hear that testimony”?
A. Fi gad.
GB. Do you have any views on that question?
A. Yes.
Q. What are they?
A. I believe that trial judges are single officials. They
are not members of a collegial body like a City Council, a
Legislature or indeed like an Appellate Court. So far as 1
know, in Texas, there is no provision for trial judges ever
sitting in a body of more than one judge. We don't have any
three-judge State judge panels. The trial Judge acts as a
sole official, makes all decisions of a judicial nature,
acting alone. And those decisions then are only appealable
to an Appellate Cour's and nok. te any other body of trial
courts.
R.. Well, State District Judges do engage in some collegial
decision-making, don't they?
A. Yes, in the administrative areas, they do.
Q. Can you just, can you talk very briefly about those?
And also about what percent of the time you would estimate,
given your experience both as Chief Judge and as District
Judge?
A. By statute, State District Judges are responsible for
choosing county auditors and county purchasing agents. Some
people are shaking their heads. I believe that's right. At
—
EE A TNS Fy TE SY a SO Fe Nr 37 TF TA Se RTA TD
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Phillips —Direct — Hicks
least 1n some areas.
THE COURT: That's all right, they shake their heads
all the time.
A. I am doing my best. By our administrative rules of the
Supreme Court, we also require State District Judges, who are
in multi-judge counties, to promulgate rules of, local rules
of procedure, that will govern their Court. We also require
those judges to elect from among themselves certain
administrative leaders. And the judges in multi-counties, 1n
multi-judicial districts, multi-judge counties ordinarily
will work together on a number of other common problems, such
as, how the jury.panel is to be drawn and how Jurors are to
be assigned. All of that process, in the normal county, 1
think it would take less than an hour a month. In Harris
County, judges of the individual divisions met one Tuesday a
month, and all the judges of all the divisions met one
Tuesday a month for a luncheon, which, then they had a
business meeting. The business meeting could be anywhere
from two minutes to an hour, depending on the nature and the
amount of work of an administrative sort that was put before
the body.
Q. This is going back to a topic very briefly, but are you
aware of any efforts, historically in Texas to split, create
judicial districts that are smaller than county?
A. Yes.
ET A RT HE Feo, TF 3 £0 T3004 3/0 Se So Os on ge TY
Pa J Ri a 2 - : a -
mn
24
23
Phillips - Direct — Hicks 5-83
Q. What were those efforts, and what happened?
A. Int 1889. as 1 recall ——
THE COURT: Which was 22 years after the Federal
District Courts had the direction to handle habeas corpus
cases from State Courts. Is that correct?
A. I have to take that on faith. In 1889, Dallas County
and Bexar County each were accorded a second trial judge by
the Legislature. I believe up until that point, ancdnt for a
special court known as a Criminal District Court in Harris
County, that no county had more than one judge. So, the
question arose what to do with a second judge in an area, and
in each of those counties, the Legislature decided to split
the county in two with the line running through the middle of
the courthouse and put one judge on each side of the
courthouse in the respective districts and have those Judges
elected from their half of the county. But still exercise
primary jurisdiction county-wide.
BY MR. HILKS:
Q. What happened?
A. That legislation was repealed in 1895 for Bexar County,
and both judges were elected county-wide. It was repealed 1n
1907 for Dallas County and both judges of the 14th and 44th
Districts were elected county-wide thereafter.
Q. l don't know if you recall, tell me 1f 1 am getting this
wrong, but at your deposition that was taken primarily by Ms.
- RETR A PNT AISA WH SA STRAT SVR Ae
24
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fl Phillips -' Direct - Hicks 5-84
McDonald, I believe, in this case, there was some testimony
that you gave that said something about the current system of
judicial selection In Texas being harsh on minorities; do you
recall that testimony?
A. I don't believe I 1ndependently gave the testimony
there. It was testimony, 1t was questions about testimony I
had given to a joint interim committee on study selections.
That was for the Judiciary.
Q. I guess the question I have for you 1s, given that,
which I take 1t you have acknowledged you testified to before
in some form, are you testifying here today to try to
enshrine that system that 1s harsh on minorities, 1s that
your purpose in testifying here? :
A. No.
Q. What do you view as the solution to the current system,
and why do you view it in terms of being harsh on minorities,
and why do you view the current system to be harsh on
minorities? What was the origin of that statement?
A. I believe in testimony before the committee, and 1t 1s
not there in my deposition, I explained that I felt minority
lawyers had a8 harder time in their 1nitial races raising the
money that was necessary to mount a successful race for
District Courts in large urban areas. Once a minority does
get elected, or if a minority lawyer has served in another
position and 1s already well-known, I think the problem
Pivillips ~- Direct ~ Hicks 3-85
1 disappears. As demonstrated by the very large margins that
z some incumbent minority judges have received in large urban
3 areas. That is, that ie the primary thrust of what 1 am
Lt concerned about, and I have been concerned about this. I
5 view the merit selection process as a way to overcome this
6 problem. There was a special select committee 1n Louisiana
7 which came up with a proposal which I thought was very good.
8 The Louisiana Legislature disagreed. But their proposal was
9 to have parish selection committees when a Judicial vacancy
10 arose that had significant representation from sub-districts
ii within the parish so that when various vacancies arose and
12 selection was to be recommended to the Governor, or a group
13 of selections, there would be different people on those, on
14 that panel at different times, alternating around the county,
15 geographically. So that various socio-economic racial groups
16 and geographical groups would be represented in the process
17 that would screen candidates.
18 MR. HICKS: Pass the witness.
19 THE COURT: Ms. McDonald?
20 CROSS EXAMINATION
el BY MS. McDONALD:
ec QR. We are having this discussion because 1 get to go first,
23 and we are plaintiff intervenors. Good morning, or good mid-
r= morning, Justice Phillips. So you recall that 1 did take
23 your deposition in May of this year?
Phillips - Cross - McDonald
A. ] remember that.
QR. We talked about a number of things, spent a lot of time
talking about a number of things. One question I want to ask
you,. but not spend & lot of time on, 1s a question that Mr.
Hicks has asked me at least four times what I am going to ask
yout, ang ——
MR. HICKS: Let me just make 1t clear, I said 1t
jokingly; correct?
MS. McDONALD: Yes, 1t is.
BY MS. McDONALD:
Q. I asked you a series of questions about your background?
A. Yes.
Q. And where you grew up, what schools you went to, what
was the race of those students with whom you attended school?
I am not going to take you through all of that, but let me
ask you, for the record, what is your race? Do you prefer to
be called Justice Phillips or Judge?
A. Either one. Anglo.
Q. Justice Phillips. And you are Anglo”?
Yes.
You grew up in Dallas; 1s that correct?
1: did.
@. You went to elementary schools of all Whites; 1s that
correct”
A. Yes.
wn
m ~J
Phillips - Cross — McDonald
MR. HILKS: Your Honor, can I object to this inquiry
as to Justice Phillips historical background, where he went
to school, as being beyond the scope of direct examination?
THE COURT: It is outside the —— well, where he went
to school was in the course of your direct examination. But),
counsel, I know about Baylor and Harvard and Baker & Botts
and all that sort of stuff.
MS. McDONALD: I am not going to make a big thing of
it.
BY MS. McDONALD:
Q@. You graduated from high school when?
A. In 1974.
QR. Okay. And you then, what did you do between, after your
graduation in 1974, you joined Baylor, I mean Baker & Botts?
A. No. I went to the Supreme Court of Texas as a briefing
attorney.
R. Okay. And you worked for how long?
A. For one year.
Q. All right. Did you then join Baker & Botts?
A. Yes, 1 did.
Q. That would have been 1n 19757
A. Five.
2. And what areas did vou practice in, in Baker & Botte?
A. The litigation area.
Q. And then your first employment was when, sir?
24
5
Phillips —- Cross —- McDonald 5-88
Q. You didn't Tung: is that correct?
A. I. ran in 1982.
Q. Okay. In 1981, you were appointed by Governor Clements?
A. Yes.
Q. And at that point, how many years of legal experience
had you had? ls it seven, if 1 count right?
A. Seven.
Q. Okay. So, you had been out and had been licensed for
seven years?
A. Yes.
Q. You were appointed to a State District Court bench in
Harris County?
As Lorrect.
Q. And after that, if 1 am correct, you ran for a State
District Court benchs is that correct?
A. Yes.
Q. When would that have been, Justice Phillips?
A. First . im 1982.
RQ. Were you opposed?
A. No.
@. Did you run as a Republican?
A. Yes.
Phillips — Cross — McDonald 5-85
1 Q@. And you were elected?
2 A. Yes.
3 Q. You weren't opposed, so you were elected”?
4 A. I got my one vote, I was elected.
5 Q. Sometimes people don't vote for themselves, but anyway,
(=) you were elected?
7 A. Yes.
8 Q. Then, did you subsequently run for another District
4 Court bench?
10 A. Well, I ran for re-election.
11 Q. For re-election to the same bench?
12 A. Yes.
13 Q. When was that, sir?
Ce 14 A. In 1986.
1S QQ. Were you opposed.then?
16 A. No.
17 @. And did you run as a Republican?
18 A. Yes.
19 Q. And you assumed that bench after, after the results; 1s
20 that correct?
el A. Yes.
ee 8. You then, however, did run for the position of Chief
23 Justice of the Supreme Court; is that correct?
24 A. Well, I was running as an incumbent. I was appointed to
eS that position.
e3
23
Phillips - Cross - McDonald 5-90
Q. When were you appointed?
A. 1t wae effective January 4, 1988.
Q. And you were appointed by whom?
A. Governor Clements.
Q. And when did you run for re-election for that position?
A. 1988.
Q. What, in November?
A. Yes. In an election, the primaries are 1n March and the
General Election in November.
Q. Okay. So, then, as of the date of the Primary, then you
had been an incumbent, what, three months?
A. Two months.
RQ. Okay. And by the time of the General Election, 1t would
have been whatever it is from January through November; 1s
that correct?
A. Right.
Q. And you won?
A. Yes.
Q. And you ran as a Republican?
A. Yes.
Q. Am I correct that you have testified that more money was
spent in that election than in the history of the State of
Texas”?
A. On Judicial elections, ves.
Q. Oh, ves. I'm sorry. Judicial elections. Did you give
Phillipe — Crosse - McDonald 5-21
1 me a figure in the deposition?
ce A. I don't remember.
3 G. Okay. But anyway, in excess of $300,000.007
4 A. Oh, yes.
S Q. In excess of a million?
6 A. Oh, yes.
7 Q. Okay. So, in any case, you were successful; 1s that
8 correct?
; A. I was.
10 QB. And that is the position you hold now?
11 A. Correct.
ie Q. Prior to the time that you were appointed to your first
13 bench in 1981: is that correct, or '807
14 A. ‘81.
15 Q. '81, had you worked in any political campaigns?
16 A. Yes. Not in a major way, but I had taken minor, I had
17 volunteered in minor ways for 20 years in campaigns.
18 Q. Is it fair to say that before the time that you were
19 appointed, you had worked for Democrats; is that correct?
20 A. Yes, and Republicans.
21 #55 Do you recall my asking you 1n your deposition whether
22 or not you had registered in the Democratic Primary for many,
e3 many years before for, no, for each year before you were
24 appointed?
£3 A. Well, we had a long discussion about registering to
I TTA TA ATE NG FT IR aT eT
Senay Pram}
24
es
n
0 Phillips - Lross — McDonald a
vote, and you don't register by party 1n Texas.
Q. You can vote In either one?
A. That's right,
Q. You voted in the Democratic Primary every year that you
had an opportunity to vote in that Primary before you were
appointed by Governor Clements; 1s that so?
A. Yes, that is. ;
Q. You never worked for a Republican before then; 1s that
correct?
A. That is not correct.
8. Okay. You had? Okay. Who had you worked for then?
A. The first time, the first time 1 seriously worked, was
for Jack Cox and Des Berry in 1962, running for Governor and
Covmressman at large. 1 did a lot of work for. Dick Morgan,
running for State Representative, District 51, Place Sar]
think it was, in 1962. And 1 altar natingly from then on did
some volunteer work in both Democratic and Republican
campaigns.
THE COURT: Tell me, Justice, do you know anybody
that is 63 or four years old, lived in Texas all their lives,
who never voted in a Democratic Primary? That was active
politically, I am not talking about somebody that never did
vote.
A. Well, George Bush didn't live in Texas all of his life.
I don't know that 1 do, Your Honor.
ni
(1
) Phillips —- Cross i— McDonald 5-9
THE COURT: l1.d0. And you know him too, and you
know him too, and so do you.
MS. McDONALD: The point 1s, sir, I understand what
you are saying. 1 won't dwell on. it.
BY: MS. McDONALD:
Q. But you had voted in the Democratic Primary, you had
chosen that Primary to vote in until the time that you were
appointed by Clements; 1s that fair?
A. Yes.
Q. Now, I will move on, and I won't ask you any more
questions about that. Okay. We spoke about, and Mr. Hicks
asked you some questions about the comments that you had made
regarding the fact that the present system has minority
judges. When I say we Sroka, you and I spoke in a
deposition.
A. I don't think I said anything about minority judges. I
believe I said minority candidates.
Q. Minority candidates. You have had an opportunity to
read the deposition?
A. Well, I read it and signed 1t in June, made some
corrections which I had. Two pages, yes.
Q. Is it your testimony that the present system as 1:1t
exists must be changed, that is, the status quo 1s untenable?
A. 1 made that statement to the Legislature in my State of
the Judiciary Address, and yes.
mn
24
25
Phillips - Cross ~~ McDonald 5-94
THE COURT: And they acted swiftly.
A. Well, they are working on 1t. It was Governor Coke,
when he ran for Governor 1n 1876, said we had to change the
Judicial section to get rid of all this popular election of
judges. We are still working on 1t.
BY MS. McDONALD:
Q. And so, you did say that; 1s that correct?
A. Yes.
0. Did you also say —-- let me ask you this. Do you believe
that if the, well, did you also say that, this was the
question I was going to follow up on and the Judge asked you
a question about acting swiftly, did you also say that 1f we
didn't act swift we were going to have a Federal Judge doing
it for us”? ¢
A. I didn't say that. I said there 1s a great likelihood
of that, or something like that. Actually, 1 think what 1}
said was, just look at the other states and maybe make your
own conclusion.
Q. You mentioned the Chisum case, for example”
A. Yes, and I mentioned --
Q. You mentioned Louisiana, and you said 1t 1s coming. You
didn't use that word?
A. No. 1 didn't. 1 chose all of that very carefully.
Q. But you told, during your State of the Judiciary speech,
that this present system is, the status quo is untenable, 1t
Phillips —- Lross — McDonald be Sd
has got to be changed, we have a choice, we can make 1t or sa
Federal Judge is going to change it. You made specific
reference to the Chisum case: is that not correct”?
A. That's correct.
Q. Did you not also testify during our deposition that,
during your deposition, the colloquy that we had, that 1f a
county is divided into districts smaller than a county,
obviously that that would increase the number of minority
judges who would be elected?
A. Well, assuming which county and the divisions are equal
in population and not grossly gerrymandered. That would be
my assumption as a non-expert.
Q. Okay. vas understood, and 1 think 1 told you in the
beginning of the deposition that I was taking your deposition
as the attorney representing the Houston Lawyers Association
and challenging only the method by which the District Court
Judges are elected in Harris County; did you understand that?
A. Yes.
. Gnd 1 tried to limit my questions to that. So when you
responded, you were responding about Harris County; 1s that
what you are telling me”?
A. I believe I was in the deposition. Your question today
was not so limited.
Q. Well then, let me limit that question to Harris County.
Is your answer yes or no?
RS TN TI SET SN EE MT
24
es
Phillipe - Cross ~- McDonald 5-96&
A. My guess would be yes.
Q. Did you also not testify at your deposition that you
were convinced, and had been satisfied that both the intent
of the voting rights act was to diminish or minimize the
voting strength, was to prohibit the diminution or
minimization of voting strength of Black and Hispanic voters;
did you not take that position?
A. I don't really recall giving my interpretation of the
Voting Rights Act.
QR. Let me see, get your deposition.
A. I mean, I don't question what you say, I don't remember
my testifying about 1t.
Q. Then maybe we don't have to spend a lot of time. I
mean, do you admit that the purpose of the Voting Rights Act
is to prohibit the diminution or minimization of the vote of
minorities?
A. Well, I believe the term they used is dilution of
minority voting strength.
QR. Do you accept with me that that is the purpose?
A. Yes.
Q. You don't take the position that the Voting Rights Act
is unconstitutional, do you?
A. No.
0. Let's talk a moment about Article 5, Section 7(a) (1),
which Mr. Hicks asked you about. Am I correct that that is,
Phillips —- Crosse - McDonald 5-9
1 was first introduced through legislation, first coming from
c the Senate, an amendment being applied 1n the House, and then
3 as a result of that legislation an amendment to the
4 Constitution was passed adding Section 7(a)(1)7
5 A. That is my understanding, yes.
6 Q. Now, ‘prior to, ‘and this was In 198%; is that correct?
7 A. Yes.
8 Q. And Senator Caperton was on that committee 1n the
Q Senate; 1s that correct?
10 A. Well, I read some legislative history that 1ndicates
11 that.
12 GQ. Senator Craig Washington you know -- or was Senator
13 Craig Washington on that committee?
14 A. That is my understanding.
15 Q@. Senator Washington had offered, had Senator Washington
16 offered legislation prior to Article, what became Article 5,
17 | Section 7(a)(1) that would have provided for single—-member
18 districts, and you may have a question about what I mean by
1% single-member districts, listening to the questions from Mr.
20 Hicks, but do you know what legislation I am referring to”
cl We talked about 1t.
ge A. I am vaguely familiar with 1t. I think 1t was, his bill
e3 was, | believe by Justice of the Peace Districts, which would
24 be eighths of the county, roughly.
23 RQ. He had -- you have studied the history of the efforts to
Er re Ut erg Sh pv EL
HEB A
24
23
Phillips ~- Cross ~- McDonald 5-98
make changes in the way judges are elected, I gather, from
looking at your State of the Judiciary speech; 1s that
correct or. not correct?
A. I haven't made a systematic study, but 1 am roughly
aware of some history.
Q. At your deposition, I asked you questions about Blacks
who had voted, Blacks who had run for Judicial positions,
whether they won or lost.
A. That was not based on a study, Just recollection.
Q. Just on knowledge. Senator Washington 1s Black; 1s that
correct?
A. Yes.
RQ. He is from Harris County?
A. Yes.
Q. He represents voters in Harris County?
A. Yes.
@. He had introduced a number of bills providing for
single—-member districts; is that not true?
A. Yes.
Q. And when I say single-member districts, I mean districts
smaller than a county-wide district; do you understand that?
A. I will accept that definition.
Q. That is what I -—-
A. 1t is not what 1 ordinarily would think, but —--
Q. That is what I mean when I say single-member districts,
Phillips ~ Cross - McDonald 5.06
1 I mean districts smaller than a county. Senator Washington
ce had introduced several bills that would have required drawing
3 such districts; is that so?
4 A. Yes.
5 Q. And you opposed at least one of them: 1s that not so”?
be) A. I didn't actually oppose them, but to the extent that 1
7 knew I they were out there, I opposed them, ves. I was
8 personally opposed.
9 Q. I asked you whether or not you agreed or disagreed with
10 Senator Washington's bill, the last bill; do you recall my
5 questioning you about that?
iz A. Yes.
"13 QR. And did you answer yes, that you agreed with that bill?
14 A. Yes.
15 RQ. And do you recall my asking you why? Well, 1f you
16 don't,
17 A. Well --
18 Q. Did you give me an answer as to why, why you disagreed
19 with 1t? That is a better way.
20 A. I'm sure I did give you an answer.
21 ?. Did you not tell me the way he proposed the bill, that
oc the way the bill that he proposed would have been
e3 effectuated, would have placed you in Galena Park and you
2&4 would have to run from Galena Park; do you remember that?
eS A. I mentioned that, but that is not the reason I was
EE TN TR TS SE INT 3 I TAI A TA
24
es
Phillips —- Crosse —~ McDonald 5= 100
opposed to 1t.
Q. ‘All right. “But {+ ig true?
A. I could have changed districts and had an absolutely
safe race.
Q. Okay. At the time you would have had to have run from
Galena Park; is that correct?
A. To be the Judge of the 2B0th District Court, if his bil}
had passed.
Q. You and 1 talked about that.
A. Yes.
Q. And Galena Park is what race, predominately, if you
know?
A. Well, I dori know. You educated me during our
colloquy.
Q. That is not fair. Okay. 1t 1s not fair then for me to
tell you it is predominately Black? I won't. Senator
Washington, we did talk about that Senator Washington grew up
in Galena Park, did we not?
A. You told me this.
Q. We will go on to something else then. When you were
appointed to serve on the 280th District Court by Governor
Clements, was there any question raised about the number of
years that you had served as a lawyer, practiced as a lawyer?
A. Yes. I mean questions by who?
Q. I mean opposition, I mean persons questioning the fact
24
2%
that perhaps you were too young and
experience”?
A. 1 wae Board certified in civil
Supreme Court. I guess I resort to
said, "Plenty ofiopposition, but no
hear much criticism
Q. Seven years, then,
A. The Constitution says four.
R@. Okay. Four years and one day
A. That's right.
Q. Ac far as you are concerned.
proposition that there are some lawyers,
lawyers who are, perhaps,
1s good enough,
had lacked trial
trial law, clerked at the
what Judge Stovall always
opponent.” 1 gid not
along those lines.
1s good enough?
I guess.
Would you agree with the
some, yeah, some
more qualified when they pass the.
Bar than some lawyers who have been around ten years”?
A. Certainly. Certainly that
QQ. Sometimes,
"Sometimes 1t 1s ten years’
ten."
A. I think I understand that, yes.
Q. Amal correct that In 1980,
any Republican had ever
A. That's correct.
and I will quote another
won a Judicial
is true.
Judge, Judge Seale,
experience or one year times
And do you understand what that means?
1280 was the first time that
race in'Harris County?
§. Am 1 correct that you believe that one of the biggest
impediments,
but questions about this, Hicks
and you may have testified
let me ask you,
in response to Mr.
one of the
Phillips — Cross - McDonald 5-102
biggest impediments in Harris County now for a Judge to be
successful 1s the vastness of the county, thus the need to
raise a significant amount of money to be successful.
A. That has been true 1n the past. It seems to me 1t 1s
lese true over the last two elections, because of the
increasing influence of certain endorsements.
Q. And would you agree with me that being an incumbent
increases your opportunity to raise the money that 1s needed
to run Harris county-wide?
A. That has been the history, yes.
Q. If you had been -- let me say one other thing to make my
answer complete. I think that money 1s a lot more 1mportant
in a Primary than in a General Election, because in the
Primary, you start off with an absolute core of zero percent.
In the General Election, both parties start off with a
substantial part of the voters already committed.
@. Did you refer to the Democratic Party as the, I am
looking for the, the loudest, I am sure you didn't mean 1t in
a derogatory way, but that the Democratic Party gives the
voter a chance for his voice to be heard the loudest?
A. In the 1970's it dad. My answer was, 1n response to
your question why I voted in the Democratic Primary, my
response was that there were about ten times more contested
races in that primary than there were in the Republican
Primary where you were usually only given the option of going
Phillips — Lross ~~ -Mcponalgdg 5-103
1 and voting or not voting for an unopposed nominee.
3. So the Democratic Party, then, prior to 1980 had built no
3 up its strength in Harris County, to say the very least; 1s
4 that correct, to the exclusion of your Republican Party?
3 A. It started out with the strength and kept 1t. Well,
6 actually, Harris County was Republican 1n the early 1870's
7 but that 1s an anovolly.
8 Q. But in 1980 when the Republican Party began, and I am
q now referring just to Judicial races.
10 A. «All right.
11 Q. When they began to register, to make a challenge, was 1t
12. not easier to become a candidate on the Republican ticket
13 than on the Democratic ticket because of lack of opposition?
14 A. You mean to get the nomination?
15 RQ. Yes.
16 A. Yes.
17 Q. So, if you wanted a job as a Judge, that 1s probably
18 your best bet, is that not so?
19 A. It depends on how the General Election was going, but as
20 far as if you wanted to be a nominee in the General Election
2} in a Judicial race, there were more available spote as a
2a Republican nominee than as a Democratic candidate.
23 R. Did you not witness not only your change from voting, I
24 am not asking whether you were a Democrat, but voting as a
eS Democrat, voting in the Democratic Primary, did you not also
24
es
Phillips —- {Crosse — McDonald 5-104
witness a significant change by other persons in Harris
County at about this same time?
A. Yes.
Q. Okay. Were you the first Republican to win the Chief
Justice position in the State of Texas?
A. Yes.
Q. And am I correct that you told me that you worked in
some campaigns, going back to the '60's, ] guess, were you in
college then?
A. No, I was in junior high school.
&. Okay. Oh my, how old are you, Justice?
A. Thirty nine and eleven months.
GQ. All right. But had you ever held, and let's take you a
few years later then out oF junior high school, after you
became a lawyer and you were working with Baker & Botts, did
you hold any office with the Houston Bar Association?
A. No.
@. Did you work on any committees of the Houston Bar
Association?
A. No.
0. Now, with respect to the legislative intent, and we have
heard some testimony about that, about Article 5, Section
7(aY{1) which gets us to this Court, well, which is the
reason --
A. 1 have not heard any testimony about it.
r=
ES
Phillips - Crosse — McDonald 5-10
Q. We have. Let me ask you, did I not ask you questions
about the Legislative intent of that article during your
deposition?
A. l'don't.recall that you. did.
Q. Let's see, do you have a copy of your deposition?
A. I will trust your reading.
Q. Thank vou, Justice Phillips.
THE COURT: Let's don't take the time.
BY MS. McDONALD:
Q. Well, okay. Then I won't read 1t. l1 won't read it, but
would you agree with me that prior to 19 —-- prior to Article
5, Section 7(a)(1), that there was no limitation running for
8 Judicial race, a District Judicial race, from a county
smaller than, from a district smaller than a county?
A. There was no Constitutional limitation.
Q. Were there any statutory limitations?
A. Yes. I mean, the statutes, with the exception of these
two, have always created a Judicial District, and created its
boundaries, and they have always been at least one county 1n
size, except for the 1889 Legislature.
Q. In response to some questions from Mr, Hicks, you tslked
about the Judicial Redistricting Board. And you are a member
of that ‘boards is that correct?
A. Yes.
RQ. How many persons are on that board?
24
25
Phillips — Crosse = McDonald B= 104
A. Twelve, 1 believe. There may be 13.
Q. And that board was created in 1985 by virtue of this
Article 5S: is that correct, Section 7(a)il)? Is that
correct?
A. Yes.
Q. Is 1t your understanding that the purpose of the
creation of this board was to allow redistricting; 1s that
Correct?
A. Yes.
Q. Is it your understanding that the purpose of the
redistricting was to equalize the dockets among the courts 1n
the. State of Texas?
A. Yes.
0. And Senator Caperton, was he the author of -- well, not
important.
A. I don't know.
RQ. And in any case, the purpose of that article was to
equalize the workload?
A. Yes.
Q. In other words, there were some counties that there was
a: sitting District Court Judge, a sitting Judge, State Judge,
who did not have as much work as some judges 1n a county
where there were many judges, but because of population they
were working themselves hard?
A. That is certainly true.
24
25
Phillips — Cross — McDonald 5=107
Q. What does the limitation that judges be elected from no
smaller than a county have to do with the equalization of the
docket?
A. We were, as I understand it, my interpretation, and 1t
is only a guess 1s, that the Constitution was written that
way in order to perpetuate the practice that Texas had had
almost universally, and so far as I know, every other state
that popularly elects its trial judges, whether by open
election or retention election has, those judges being
responsible to the voters over the entire area 1n which they
exercise primary jurisdiction. And there were several limits
-— the Legislature wanted us, wanted this board to be set up
so the Judicial Districts would be redistricted 1n case they
didn't get around to it, as they have not gotten around to 1t
since 1876, despite numerous bills being 1ntroduced. But
they set various limits on what the board could do that. would
be consistent with their own desires, such as not submerging
a small rural county into a large urban county, and such as
not subdividing a county into multiple districts.
Q. What does -- the admitted purpose of the act, and that
is equalizing the docket, some judges have heavier dockets
than others, what does the prohibition of judges being
elected from no smaller than a county have to do with
equalization of the docket of the judges?
A. It set parameters on what the Legislature felt was an
>
oO
24
23
Phillips = Cross =~ "McDonald 5-108
acceptable method for us to go about equalizing the docket.
Of course, the Legislature left arm out, if people want those
districts, they can vote for those in a referendum. But to
my knowledge, there has never been any attempt to have such a
referendum anywhere 1n Texas.
Q. Well, I'm sorry, 1 just don't understand.
A. Well, I mean the Legislature could have said, "We want
equal dockets, you do 1t anyway you want to, or they could
say, 'We want equal dockets, you do 1t within these
parameters," and apparently they and the voters of Texas
chose the latter means.
Q. But electing judges from the absolute prohibition that
judges may not be elected from a District smaller than a
county has no effect upon the equalization of the docket;
isn't that true?
A. You say me? I mean, all I can do 1s stand on my answer.
You can equalize dockets with some restrictions or without,
and the Legislature chose to submit a Constitutional
Amendment that set some parameters that appear to me to be
the traditional parameters they would have, they had followed
themselves 1n creating new Judicial Districts.
QR. Okay. I won't follow that, I won't ask you again about
the question. Senator Washington, however, took the position
it had nothing to do with it, and in fact —-
MR. CLEMENTS: Excuse me Just a moment. Judge, 1s
Phillips - Cross — McDonald 5-109
counsel testifying or is she questioning the witness?
THE COURT: Ask your question.
BY MS. McDONALD:
Q. Did Senator Washington take the position that the
purpose of the bill that both Senator Caperton and Senator,
and Senator Crier had worked, were pushing the bill for
equalization of dockets, but that had nothing to do with
putting into that particular statute that the judges could
not be elected from any districts smaller than a county?
A. l don't know.
Q. Okay. I gather from your testimony earlier 1n response
to questions from Mr. Hicks that you are not opposed to the
drawing of, the creation of districts smaller than, Judicial
Districts smaller than a county; is that correct, given
certain limitations?
A. It is not the way 1 would do it, because 1 think there
would be tremendous venue fights and jury selection problems.
1 have no, no principal opposition to that, if that is what
this Legislature and people want to do.
Q. Earlier, you told me if such districts were drawn
smaller than a county that would increase opportunities for
minority candidates to prevail in Judicial elections; 1s that
true?
A. That is my, that 1s my guess.
Q. Okay.
% 4
ER TR NS EE ST AR AT
=o
25
Phillips — Cross - McDonald 5-110
A. I have not run ecological retrograde analyses.
THE COURT: One of the few that have not.
MS. McDONALD: I am almost finished, Judge Bunton.
BY MS. McDONALD:
Q. You do agree with me that there had been official
discrimination by race in Harris County, Justice Phillips; is
that correct?
A. Yes, I believe that has been Judicially determined.
3. And you did agree with me that the changes, or did you
agree with me that the changes in the way that city
councilmen are elected in Harris County made a difference in
the number of minorities who are elected to the City Council;
is that correct?
A. Yes.
QB. Increase them dramatically; is that not so? Well --
A. They 1ncreased.
Q. Before, when city councilmen were elected at large,
there was one Black city councilman, Justin Robinson; 1s that
correct?
A. I believe that's right.
Q. After that system was changed to a partially at large,
partially bi-district system, there are now more minorities;
1s that not so?
A. There are two at large and one or two from districts.
Q. Three Black, two Hispanic -- well, one Hispanic and
p
t
24
25
Phillips — Lross —- McDonald 5-111
three or four Blacks; does that sound about right?
A. That ic about right,
Q. And you also agreed with, or do you agree with me that
the change that was made with respect to the re-districting
of the legislative system so as to provide for electing of
legislators by districts rather than, individual districts
rather than larger districts, increased the number of
minority legislators; 1s that correct?
A. Yes, it did.
8. Do you think that -- well, 1 will strike that. Did vou,
did you testify —— well, let me ask you this. Do you believe
that the swing, that as running, that running as a
Republican, Republican, the swing vote, the swing votes are
in the rural areas? And now I am talking about rural areas
in the State of Texas.
A. There are probably more, a lot more swing votes, 1n my
opinion, in the urban areas than in the rural areas, because
as a percentage of voters, per the number of voters how many
are swing voters, there may be more in the rural areas. That
is, each person you meet on the street in a small town, you
might be more likely to persuade to vote contrary to the
primary party of preference than you would in an urban ares,
but that would take some sophisticated study to be sure.
@. Did you testify that urban voters have generally made
their minds up and the ones that have not, you reach them by
24
£5
Phillipe Cross — McDonald Be-g1
going door to door?
A. No. If J] did, 1 was either micstaken.or it is a
transcription error. You can't possibly reach urban ares
voters going door to door, 1f you are talking about a state-
wide race. In urban areas, you reach the undecided voters
through media campaign. 1t may say that, but ——
THE COURT: It makes no difference.
MS. McDONALD: Thank you, Judge.
BY MS. McDONALD:
QR. So that if —-- well, do you know where the swing voters
are in Harrie? You live in Harris County, do you not?
A. Yes.
@. Where do*you live, in what area”?
A. Actually, I own a house in Harris County on Sunset
Boulevard, near Rice University.
Q. Did you '—~
A. I hope soon not to own that house.
Q. Maybe the county is doing better, but 1t 1s hard, hard
to get rid of houses sometimes. But do you know where the
swing voting area is in Harris County, Justice Phillips?
A. Well, I know some of the isress that are swing votes. I
am not an expert on every particular, on every box. But
certainly I live in an area that has a lot of swing voters.
Q. Would that be referred to the Mireland/Brazewood area,
or do you know?
fe
t
—
x Phillips - Crosse — McDonald 5-
1 A. No . It ie a little to the north of that. It would be
2 the South Hampton/West University area.
8 Q. You would also agree, I have asked you about historical
4 discrimination. I have asked you about other matters that
3 have been raised in jingles. Let me ask you whether or not
6 there are geographically compact areas in Harris County
7 composed of Blacks.
8 A. To my understanding, there are, although I have never
Q looked at the census data.
10 Q. You have heard of the Fifth Ward?
it A. Yes.
ic Q. Barbara Jordan, you have heard of Barbara Jordan,
13 haven't you?
14 A. Yes.
1s Q. She. came from the Fifth Ward.
16 A. I have always heard this, and I have no reason to doubt
37 it either from observation or what people tell me, but 1 have
18 never actually studied that.
19 Q. Have you ever been to the Fifth Ward to campaign?
20 A. I don't know the exact boundaries. Probably not.
el Q. What about Lyons Avenue? Have you heard of Lyons
22 Avenue?
23 A. No. Oh, sure, I have heard of Lyons Avenue. l1.did not
24 go there. I made no campaign stops there.
23 R. Okay. Do you know Judge Kenneth Hoyt?
2&4
23
Phillips —- Cross - McDonald 85-3114
A. Yes.
THE COURT : Do you know where he lives?
A. He lives -—-
MS. McDONALD: l1'm sorry, Judge, 1 didn't hear that.
THE COURT? I Just asked him 1f he knew where Judge
Hoyt lives.
A. He lives three doors from Lymn L. Castillo on South
Brazewood, but I don't know the address.
THE COURT: South McGregor.
A. South Mchregor. I'm sorry.
THE COURT: 3334 South McGregor.
A. I will send him a Christmas card.
MR. HICKS: Judge, I have prepared him carefully on
that question.
THE COURT: What are you briefing, when you are
briefing the Chief Judge, what do you brief him on, you know?
A. He did tell me the address, but 1t was Just hearsay as
to me.
BY MS. McDONALD:
Q. Do you know, do you know -- you do know Judge Hoyt,
though?
A. Yes.
@. Okay. Did vou, when 1 took your deposition, 1 asked you
about his race as a Republican, is that not so, Justice
Phillips?
n)
Phillips —- Lrosse — McDonald 5-11°¢
A. Two of his races, ves.
Q. Yes, 'B2 and '847
Q. In '82, did he win or lose”?
A. He lost.
0. And he was running for what bench?
A. 125th Pigirict, 1 think.
Ge: "Civil?
A. Livil,
Q. Civil Court of Appeals?
A. No. District, 125th District Court, giving preference
to civil matters. i
Q. In that event, William Powell ran against him; 1s that
correct?
A. Yes.
Q@. And he beat him in the primary?
A. Yes.
RQ. And William Powell ran against him as White; 1s that
correct?
A. Yes.
Q. Okay. Then in 1984, do you know whether or not Judge
Hoyt ran for election?
A. Yes.
Q. And did ihe then run for the civil court, civil court
bench?
TREATS
Phillips { < McDonald
A. He ran for the Court of Appeals.
Q. Court of Appeals then. Okay. And did I ask you about
his campaign for that election?
A. Yes.
Q. And did 1 ask you whether or not Judge Hoyt had told you
that he intentionally would not put his face on the ballot
because he felt people would know he was Black and he would
not have a chance to win?
A. I don't know 1f you asked me. You asked me something
about that, it had nothing to do with putting his face on the
ballot or some literature sent to Republican households. He
did not put his face in that literature. He did tell me
that.
Gt. He sold you that he intentionally did not put his face
on that literature that was sent by the Republican Party
because he did not, he did not want people to know he was
Black because he wouldn't have a chance to win; isn't that
right?
A. I don't know if he told me he wouldn't have a chance to
win. 1 think he just decided to put the scales of justice on
there instead, and he felt that was the politically smart
thing to do.
Q. Okay.
A. Your question, I mean we had a discussion at the time.
1 don't believe he ever said, "1f 1 do this ]l won't win." He
Phillips — Lrose. — McDonald B-117
said something like, "I decided to do this for political
reasons.
Q. Did vou tell me that Harris Lounty, at your deposition,
did you tell me that Harris County 1s the most opposed county
in terms of Judicial races or more opposition?
A. There are more races 1n Harris County than 1n any other
County.
Q. Did you tell me that either party can win in the General
Election?
A. Yes.
RQ. So, essentially, a 50/50 chance?
A. No. Well, yes, I guess so. It is not clear yet. In
1982 and 1984 there were party sweeps. In 1980, 1986, 1988,
candidates of both parties won. it 1% roughly in balanced
numbers. More Democrats in '8&6, more Republicans 1n '88, but
candidates of either party had a chance to win in these three
years.
Q. Party sweeps in Harris County have been rather of some
interest to a number of people; 1s that not so?
A. Yes.
Q. When I say that, there was one year when, when judges of
a particular party were essentially wiped out, simply because
the person at the head of the ticket was of a different
party; is that not so?
A. Yes.
24
25
Phillips - Cross — McDonald 5-318
Q. Would that have been 1n what year, 19847
A. 1984.
G. And 1s that why you are opposed to putting a party label
on Judicial candidates”?
A. It 1s a very small reason. I am primarily
philosophically opposed to people thinking in terms of judges
as Democrats or Republicans. But that 1s a very strong
practical reason I am opposed. There are practical reasons
both ways.
Q. And in that sweep, were judges, 1n your opinion, 1f you
know, judges who were good judges wiped out because of that
factor?
A. Yes.
Q@. Do you know anything about the demographics of Pasadena”?
A. Not very much.
MR. HICKS: Your Honor, I have not objected in a
while. This is far, far beyond any imaginable scope of
direct examination.
THE COURT: It was. Sustained.
MS. McDONALD: Excuse me, Your Honor. May I confer
with co-counsel one moment?” Thank you very much. Pass the
witness.
THE COURT: «Mr. Rios?
MR. RIOS: I just have a couple of questions.
CROSS EXAMINATION
Phillipe = Crosse’ '— Rios S=301
1 BY MR. RIOS:
2 Q. Justice Phillipe, vou said that unlike a collegial body,
3 judges make decisions 1ndependently, and therefcre, they are
4 like single districts, unlike the Supreme Court or Court of
S Appeals.
6 A. They are like solo office holders, single-member
7 districts, yes.
8 QR. Unlike the Supreme Court or the Court of Appeals?
i 4 A. Yes.
10 @. Does that mean that you would favor single-member
11 districts for the Supreme Court or Court of Appeals?
i2 A. It doesn't mean 1 favor them, but ] believe that that is
13 a decision for the Legislature and the people, and I am not
14 opposed if that is the way they want to do 1t. I believe
15 this 1s correct within about one state, 29 states elected
16 judges to the Supreme Court, elect them to the Supreme Court,
17 elect them at large, state-wide, and about 14 elect them from
18 districts. So, it goes both ways. And both ways have
19 certain advantages and certain disadvantages.
20 Q. So then, but your testimony is that 1t makes more sense
21 to go to a single-member district in Supreme Court elections
or and Court of Appeals elections than it does in District Court
£3 elections?
24 A. Yes.
25 RQ. The other thing you testified to in direct was that you
EN RS TICS 0 NT TT TD STUN ATU (RAT TI SON SAN 8, MT Me ea mS Te Ta
Phillips —'Lross ~- Rios Sv 1
1 believe district Judges should be elected county-wide because
2 that 1s where they have Jurisdiction, and they make decisions
3 that influence that community; 1s that correct, and therefore
&4 they should be responsive to the electorate”?
3 A. Yes. If Judges are going to be elected, I think they
6 ought to be accountable to those people who can be hailed
7 into their Court without having done some action that would
8 get them into another Court.
4 Q. Yet, you will agree with me that often district judges
10 are called to come into different counties, counties they are
11 not from, to make decisions?
12 A. Yes.
13 Q. That happens quite a bit, 1n fact?
14 A. Yeah, quite a bit.
15 Q. Also, are you aware of the fact that in Mississippi, in
16 a similar lawsuit to this one here, the Court ordered
17 regional elections for district judges, yet those district
18 judges would have venue and jurisdiction over bigger areas
19 than the regional districts they are elected from?
20 A. I am aware of that.
£1 Q. Are you aware of that?
20 A. Yes.
ea MR. RIOS: Pass the witness.
24 MR. CLOUTMAN: Very briefly, Your Honor.
eS CROSS EXAMINATION
Phillips ~ Cr Cloutman S~id Oo 0 un
|
| 1 BY MR. CLOUTMAN:
2 0. Justice Phillips, you indicated with some conclusions or
3 opinions with regard to Harris County. Let me ask you about
4 Dallas County, your home county, whether you have an opinion
5 as to whether the creation of smaller than county elections
6 would result 1n the enhancement or enhancement chances of
7 electing Black judges 1n Dallas.
8 MR. GODBEY: Your Honor, for the record, I am not
G sure Justice Phillips yet has been qualified to opine on
10 demographics regarding Dallas County.
Be THE COLIRT : I am certainly not worried about whether
12 Chief Justice would handle himself, counsel. I am going to
13 overrule. ’
14 A. I don't know 1n that I have AN or made a study, but I am
15 aware of the composition of the Dallas City Council, and the
16 Dallas Legislative Delegation.
17 BY MR. CLOUTMAN:
18 RR. All right.
19 A. And I assume that there would be more Blacks in Dallas
20 County, and Hispanics than Dallas County has now among their
21 36 district judges; but 1 Soulentt “Swear to that under oat
ee Q. I understand.
23 A. And I can't swear how the voters would react when they
24 voted, but I think it is a safe assumption.
iow Q. ] appreciate that. You are aware that at least the City
ES I AT Cy ST eee
Phillips - Cross ~ Cloutman 5-122
— 1 Council and State Legislative Districts have produced by
2 single—member districts additional minority candidates, both
3 Black and Hispanic?
4 al Yes
wi Q. ] take "1 t one of the things that vou ave in favor of is
l=) a merit selection system that would use smaller than county
7 screening committees for selecting persons by merit; is that
8 correct?
Q A. Yes. I am attracted to that ideas.
10 Q. So, there are some selection devices you would be in
11 favor of for judges that would not embrace the entire county
i2 participation?
13 A. Yes. I would not require those people to be -- I would
14 not require the committee to limit 1ts confines of search to
15 people that live within that particular geographical area,
16 but yes, I think that this was a very innovative idea that
17 the Louisiana staff came up with.
18 MR. CLOUTMAN: Pass the witness, Your Honor.
19 THE COURT: Mr. Hicks? Excuse me. Mr. Clements?
soi CROSS EXAMINATION
el BY MR. CLEMENTS:
ee Q. Judge Phillips, if we might, let's talk about Harris
ea County matters before we move on to grander things. You have
24 followed Judicial politics in Harris County for a period of
eS at least your appointment as District Court Judge until the
NAA Cg J a I SAT BT a SC AE CX Ge SIR a EA ad SEEN CRE
¢ pepe sala ny Xr w A
Phillipe — Cross — (Clements 5-123
1 point of vour appointment as Chief Justice of the State
2 Supreme Court?
3 A. That 1s my rer ion of 1ntense interest, ves.
4 Q. You were 1ntensely interested 1n politics, and that 1s
vi an area that fascinates you?
b6 A. Yes.
7 0. Were there any other folks in the Harris County area who
8 seemed to you to be similarly deeply interested in Judicial
g politics as opposed to Congressional, National Legislative,
10 State Legislative, that sort of politics?
11 A. There were some, yes.
ie Q. Are you familiar with Mark Davidson?
13 A. Yes, I am.
14 @. Now Judge Mark Davidson?
15 A. Yes.
16 Q. What is his reputation, if any, as a follower of
17 Judicial politics in Harris County, Texas?
18 A. I think he has a wide-spread reputation as a, politely
19 an astute stupologist and impolitely, a political nut,
20 particularly interested in official races.
21 Q. Do you find his knowledge to be generally reliable?
ge A. Yes.
23 QR. Have you talked to him about political matters, although
24 I notice you never had to run an opposed campaign?
eS A. We have had many conversations about politics.
Phillips - Cross —- Llements S124
1 Q. Many, many conversations over the years I dare say”
ec A. Yes.
3 Q. In 1982, when you first ran, did you receive the
&4 endorsements of any of the Houston newspapers”?
5 A. la don't. think s0. I was unopposed. I got a policemen's
6 union and somebody else that endorsed me.
7 Q. Did you fare, how did you fare in the Bar poll that
8 year”?
i 4 A. In 1982, there was no Bar poll for unopposed candidates.
10 That is the year of the preference poll.
il 0. All right. And how did you fare in the preference poll?
i2 A. In the preference poll, I wasn't rated, never was.
13 BP. Allright.
14 A. The other one, the evaluation poll, I believe.
1S Q. Do you have any idea about why no one chose to oppose
16 vou your first time out?
17 A. There were five Republicans that were unopposed.
18 Largely, I was just one of the lucky ones. The anecdotal
19 story is that at Democratic Headquarters they made a list of
20 unopposed Jodic is benches, and mine was not on 1t.
al 3. Just a typographical mistake?
2c A. These things happen. But I hoped that nobody would run
23 against me even if I had been on that list that they posted
24 on the last day.
25 Q. Now, Ms. McDonald asked you about lawyers who have ten
Eoin do ra i ST IE SE A Tet Se SRE CE SAN
AP a A Sr AY eke NY a
24
25
Phillips =. Cross — Clements -
years' experience versus lawyers with one year times ten.
All Judicial candidates aren't equal, are they”?
A. No .
Q. Some are older, some are younger; right?
A. Yes.
Q. Some have benefitted by those years of experience and
some are one year times ten, or 20 or 307
A. Yes.
Q. Have you noticed in your experience that any race or
ethnic group has any monopoly on good qualified high quality
performing judges?
A. No .
Q. And yet, candidates from any, race may also be
unqualified candidates or poor candidates who run bad
campaigns?
A. Yes.
. For instance, in the 1982 race, did you even know that a
man named John James was running that year?
A. Yes, 1 did.
Q@. What kind of campaign did John James conduct for
District Court in 19827
A. Non-existent, as best I can recsll.
Q. Do you recall his race?
A. Yes. He ran against Judge Shaver, 1 believe.
Q. 1'm sOrry. Do you recall his race?
=)
9 = RS)
(i)
I 0 0 nN nN
I 0 m = mM 5) +
nN (N
n | nl
o
r
A. Yes.
@. Not ethnic, but his race”?
A. Yes. He was Black. Well, I never met the man, but that
ies what '] am told.
@. Did you ever see him out on the campaign trail?
A. No, I never laid eyes on him.
Q. There was another gentleman running that year named
Clark Gable Ward, did you ever meet Clark Gable Ward?
A. Yes.
BG. Was Mr. Clark, did you follow Mr. Clark Gable Ward's
campaign?
A. Yes. Now that you mentioned 1t, he came down to decide
whether to run against me or against Judge Moore. He decided
to run against Judge Moore, so I was very interested 1n Mr.
Moore's campaign.
RQ. And Judge Moore was then an incumbent?
A. Yes.
RQ. That is Judge Lewis Moore who is an Hispanic as we have
nailed down more than once. How did Mr. Clark Gable Ward
campaign against Judge Moore?
A. I don't remember if he did anything or not, 1f he
conducted an active campaign. I just don't recall.
Q. And do you recall whether he won or lost?
A. He lost.
Q. That same year Judge John Peavy was up for election.
Phillips. - Cross. — Liliements B= 107
" 1 You know Judge Peavy, of course”
ed A. Yes, 1 :do.
3 Q. Did Judge Peavy have any opposition that year?
4 A. Yes.
5 Q. Are you confusing Judge Peavy with Judge Routt?
6 A. Maybe Judge Peavy was unopposed that year. Was he?
7 Q. I believe so.
8 A. Judge Routt ran against Mike Arnold.
? @. And beat him?
10 A. Yes. Judge Peavy must have had an opponent 1n 1986.
11 Because he did at some time when I was there.
12 Q. And Judge Pevy's opponent was disqualified 1n 19867
13 A. All right. I am learning things.
14 TR, All right. In your 1986 election year, again without
15 opposition, by that time, had you accumulated any
16 endorsements?
17 A. I believe I got, during the campaign, maybe one
18 endorsement, maybe none.
1% R. How did you do in the Bar preference poll?
20 A. Well, I wasn't in the Bar preference poll.
21 Q. Because you weren't running?
ro A. “Right.
e3 Q. You were unopposed?
24 A. Yes.
es Q. And why do you think you were unopposed”?
ae A x EAE Lie AE
Ein LANES FAR SR Aa Tid Ee
AE Eat (OS 2 2
Phillips ~"Cross - lements S—128
A. Well, I don't know. Again, I was fortunate. In 1984,
all the Republicans had one, so there were some Republicans
left unopposed 1n 1986. I had a, a good rating from the Bar
evaluation polls, and have tried a lot of cases, disposed of
a lot of cases. And I think 1t was felt that I would run a
strong race 1f I ran. ARlso, a local bill had been placed,
had been passed by the Legislature in 1985 that required a
petition of 250 signatures and $2,000.00 filing fee to run
for Judge, or alternatively a petition of 500 signatures. ]
heard, although never proved, that somebody was 1n the field
working to get signatures against me, but didn't get them.
Q. And it never materialized? Now, sir, you mentioned that
in Harris County races, the vast majority of the votes are
br e-connl tied to the candidate of one party or to the
candidate of the other party. Do you have an estimate as to
approximately what that was over the decade of the "80's?
A. About B80 percent of the people that voted in the race at
the top of the ballot voted in Judicial races. Of that BO
percent, my guess, and it 1s purely that, is that about 85
percent 1n any given year vote for one party or the other.
They don't necessarily pull a straight lever, 1n fact we know
they don't, because we have that count. By the time they get
down to Judicial races, they are voting for all one party or
all the other.
Q. Is 1t your opinion these voters are casting straight
E> So on SRD Eid AR DRS TTR
24
2%
Er BoE 10 eg ws vot
Phillips — Cross —- Clements S~12°%
party votee for all Judicial candidates of one party or the
other on the basis of race?
A. No .
@. What do you believe motivates those straight ticket
votes?
A. Well, Just as purely, just what people say, my own
feeling is a lot of people use the Judicial races as the
opportunity to reinforce their vote for the President or
Governor. If they are really mad at somebody or really
pleased with somebody, they just vote for that party's
candidate and a bunch of other races, and that makes them
feel good, like they have done more for the effort.
Q. Has it been your experience that most voters know who
they are voting for, like for instance, name, race, political
philosophy, when they vote a straight party ticket?
A. You mean for each of the candidates in that party? I am
virtually certain they don't, most voters don't. Most voters
don't even know who their Congressman is.
Q. In 1984, there was a Republican sweep, wiped out all
Democrats, Black, White, Hispanic. In 1986, was there a
thread of incumbency that seemed to tie together most of the
winners?
A. Well, there was a thread of incumbency and a thread of
Bar poll. 1f you look at both, if you took those, you could
explain nearly every race, I believe.
24
£3
Phillips - Cross. — Liements 5-13
Q. One of the exceptions was Judge Matthew Plummer?
A. Well, Judge Plummer lost the Bar poll by a vote of a
thousand and something to 408. Better than two to one.
Q. Over two to one?
A. Yes.
@. So, while Judge Plummer was an incumbent that year, he
had been appointed only shortly before; right?
A.
Q.
A.
Q.
A.
Yes.
And did not do well on the Bar poll?
No .
Did he have —-
And he had run two unsuccessful races before. That is
neither here nor there, I guess.
G. In 1988, was there a common thread tieing together those
who seemed to be successful in the Judicial races”?
A. Yes.
Q@. What was that?
A. It was a Bar poll.
Q. Do you think the Bar poll gets wide publicity 1n Harris
County?
A. Yes.
Q. Do vou think it has an effect on the slection?
A. 1t did: in 4988, 1 am certain.
R@. Are you sure of that?
A. There is absolutely no other way you could explain the
Phillips - Lrose - Clements S=-131 ®
4 1 races coming out as they did, other than that common
2, predictor.
3 Q. In your experience, running in Harris County elections,
Ly analyzing Harris Lounty elections, do you feel that race has
3 been a significant or determinative factor in elections of
6 successful judges in Harris County?
7 A. Let me go back and say something about my last answer
8 and amend 1t. I am talking about the General Election only
Q in 1986 and 1988, and not about the Primaries, first. Let's
10 get that correct. I am really not, 1 do not feel qualified
11 to answer the question about race as a determinative factor.
12 There are, as a general rule, clearly not because there are
13 many, many exceptions. As to whether 1t has ever been =a
14 factor, I am not qualified to say. -
135 . All right. Now, let's go to the question of the 1985
16 amendment. You have examined the Legislative history to that
17 Constitutional Amendment?
18 A. l glanced at it, yes.
19 Q. Are you aware that the question of whether or not the
20 Legislature should or shouldn't put single-member distract
£1 restrictions into the bill was debated?
22 A. Yes.
23 Q. That issue was certainly before both the Senate and the
24 House at different times?
iw A. It appears it was, yes.
Phillips - Cross - Clements
1 R@. And did the Senate and the House reach different
= conclusions?
3 A. Yes.
4 Q. With respect to the single-member districts? So that
S was a matter that went to a compromise committee?
6 A. Yes.
7 Q. Do you recall that the name or number of the bill as it
8 went to committee was SJR147 That 1s asking for awfully
b detailed knowledge.
10 A. No.
11 Q. Perhaps I can give you something that would refresh your
12 memory. I have previously provided counsel with Defendant's
13 Exhibit 592, which has self-proving verifications from the
14 officers of the Senate.
15 MR. CLEMENTS: We offer Exhibit 69.
16 THE COURT: You may approach the witnesd
17 MR. CLEMENTS: Excuse me?
18 THE COURT: You may approach the witness.
12 MR. CLEMENTS: I apologize, Your Honor.
20 BY MR,.‘CLEMENTS:
el GG. First, if you will look at the legislative reference
ec library certification, which 1s page 4&7
23 MS. McDONALD: Are you offering them?
24 MR. CLEMENTS: I am offering defendant intervenor
eS Wood Exhibit 59.
L720 NS
TTR SR I NOR ARS PACs AF ole gr CR POEL lo ha lh SE PRT Sf a CL Ln
24
£5
Phillips - Cross - Lliements 85-133
MS. McDONALD: I have an objection.
THE COURT: All right.
MS. McDONALD: I suppose I don't have an objection
to authenticity. I see 1t, whatever 1t says looks good to
me . In terms of authenticity, if it has not been listed, and
admittedly we have been struggling very hard, taking
deposition, but if it hasn't been listed as an exhibit, the
witness has already indicated that he is not familiar with
it. My objection is one of surprise, but that's all. 1 wid
just sit down.
THE COURT: Overruled. What 1s your question,
counsel?
BY MR. CLEMENTS:
Q. If you will look at page 4, do you see the conference
committee listed? Page 5, I'm sorry.
A. ] see 1t on page 35, yes.
Q. Senator Craig Washington was a member of the conference
committee that approved the final version of the bill as
attached, did he not?
A. Apparently so.
Q. And if you will look at page 2 of Defendant Wood Exhibit
59, where it lists, see the bottom of page 2 and carries on
to page 2 where it lists those Legislators voting for and
against the Constitutional Amendment?
A. Yes.
Fhillips — Cross - Clements 35-13%
1 Q. Senator Washington was one of the senators voting for
the passage of the Amendment, including the provisions with no
3 respect to restricting the Legislative -— 1'm sorry, the
4 Judicial Districting Board's authority to make single-member
5 districts without a referendum, was 1t not?
6 A. Well, 1 haven't studied it enough to make sure. Yes, 1
7 guess it was, after it had been conferenced. Yes.
8 Q. And are you aware of any campaign to either support or
2 oppose the Constitutional Amendment in the 1984 election?
10 A. “85.
12 Q. ‘835 election?
12 A. No, I don't remember any.
13 Q. Do you recall any effort mounted by Senator Washington
14 or any minority group to point out that this was somehow or
1S other violating their constitutional rights under the Federal
16 Constitution and Texas Constitution?
37 A. I am not aware of any.
18 MR. CLEMENTS: I will pass the witness.
19 THE COURT» Mr. Hicks?
20 MR. HILKS: I have no questions.
21 YHE COURT: Thank you very much, Judge Phititne. It
ec is a pleasure to have you in our Court.
23 THE WITNESS: It is good to be here. I am not sure
24 I can get out.
25 THE COURT: Most Baylor Bears are able toc make their
5-135
exit from that. Thank you. All right. Call
witness.
MR. JAVIER GUAJARDO: We call Judge Paul Canales.
PAUL CANALES, WITNESS, sworn,
EXAMINATION
BY THE COURT:
Q. Tell me your name, where you live and what you do,
please.
A. My name is Jipaulito Canales, Jr. I go by the nickname
of Paul, and']l live in San Antonio, Bexar County, Texas. I
am Judge of County Court at Law No. 2.
Q. All right. Tell me a little bit about your education
and your legal background.
A. 1968 graduate from Thomas Jefferson High School, I went
to Texas A & M Unters ty on a scholarship. I graduated from
Texas A & M University with a B.A. in Political Science in
December, '71, went to law school, Texas Tech. I graduated
in 1972, 1 started with the D.A.'s office afterward.
RQ. Youistarted when, '7] and. .got out in '727
A. That would be quick, wouldn't it?
Q. Yes.
A. I graduated in '71, started law school and graduated
from Tech in '75. Excuse me.
RQ. How long have you been a judge?
A. Just recently won an election, last year.
RR OE A ET A ie PT ST ES SOE TE
Canales — By the Court 5-136
® 1 THE COURT: Go ahead.
DIRECT EXAMINATION mn
3 BY MR. GUAJARDO:
4 2. For the record, can you give me your race?
5 A. Mexican-American.
6 Q. Can you briefly describe your childhood for me, Judge?
7 A. I was raised poor.
8 | THE COURT: You had a mother and a daddy?
3g A. Well, I didn't have much of a daddy. He deserted my
10 family in the 8th grade. Basically, lower middle class poor.
11 Like I said, I got a scholarship to go to college and work my
12 way through college.
13 BY MR. GUAJARDO:
14 Q. And you were an assistant D.A. for seven years?
15 A. Yes, I was.
16 Q. And what did you do after you left the D.A.'s office?
17 A. I left the D.A.'s office in 1982, went into private.
18 practice with another assistant D.A., Susan Reed and her
1° husband, Bob Reed. We formed a law firm called Reed,
20 Canales, Reed. Then merged in with another law firm and was
21 called Reed, Soules, Sinclair. I decided I wouldn't come in
eo and went 1n solo practice that summer.
23 Q. Have you worked on various political campaigns in San
24 Antonio?
2S A. 1 have. I have worked, as Assistant D.A. 1 worked in
A a A Po eB EA EI a I Eo Torre
24
£5
IN TAM DE J 3 mF J Sy ATEN I PCA A Fp CR eR
Canales — Direct — Guajardg S5--137
Bill White's campaign, two of those. My sister was a B.P., 1
worked in her campaigns and when she run for County Court, 1
worked 1n her campaign also. Mainly putting up signs, things
like that.
Q. When you first decided to run for County Court at Law
No. 2, you ran against Frank Pierce in the Democratic
Primary?
A. That's correct.
Q. And what race is Mr. Pierce”
A. Black.
Q. And in your opinion, who did the Blacks vote for, for
you .or for Mr. Pierce?
A. In my opinion, they voted for him.
Q. And the Mexican-Americans, who did they vote for?
A. They voted for me.
QR. And who did you run against in the General Election?
A. I ran against Michael Patterson.
Q. Mr. Patterson is Anglo and a Republican?
A. That is correct.
BB. And who won that election?
A. 1 did.
Q. How did you do in the Anglo boxes, overall?
A. If you look at San Antonio as a wheel, and the hub of
the wheel is downtown, the inner rim 1s Loop 410 and the rim
is 1604. I won the Anglo boxes in the north side between 410
24
ed
famngles ~ Divect — Busajardc 5-138
and downtown. Out on what I call Republican land, being 410
and 1604, 1 lost, but 1 lost close enough that it didn't hurt
me.
GB. How would you compare yourself 1n what you call
Republican land with the White Democrats as far as the vote
totals that you received?
A. I think 1t would have been the same.
QR. Do you think, in your opinion, that it is easier or
harder for Mexican—-Americans to win in Bexar, running county-
wide?
A. In my opinion, I think San Antonio 1s basically Hispanic
and it 1s easier for me to run county-wide.
Q. Have I handed you Bis ihre Exhibits B-08, do you have
a copy of that?
A. Yes, I do.
Q. Can you, just for the record, run down the names of the
Bexar County incumbent judges and give me their party
affiliation, please?
A. Okay. These are the District Courts. John Cornyn is a
Republican.
THE COURT: Cornyn.
A. I'm sorry. My court reporter tells me I talk toc fast,
too. John Cornyn is a Republican, Carol Haberman 1s a
Democrat, Charlie Gonzales is a Democrat, Andrew Mireles 1s a
Democrat, Rose Spector is a Democrat, Susan Reed 1s a
24
2%
Canales - Direct - Busjardo 5-13%
Republican, Peter Michael Curry is a Democrat, Phil Chavarria
is a Democrat, James Barlow is a Democrat, Pat Priest is a
Democrat, Carolyn Spears 1s a Democrat, John Specia 1s a
Republican, Sid Harle 1s a Republican, Mike Machado 1s a
Democrat, Mike Peden is a Republican, Raul Rivera is a
Democrat, Tom Rickoff is a Republican, Larlton Spears is a
Democrat, Sharon MacRea 1s a Republican.
Q. Do you have an opinion of the impact, or how would
single-member districts impact you personally?
A. Well, it would force me —— how would I put it, 1 have
been taught since a kid that you are supposed to be
colorblind. Allright. If you work hard, you do what you
are supposed to do, it doesn't matter what color you are, you
will succeed. And now I am being told, well, you know, that
is true, but now you can't, you know, you can succeed, but
you can't live where you want to live. You have to come back
and live where you started. To me the whole purpose was to
get out of there, but that attacks me personally, because I
have a family, my children go to good public schools, I want
to live where I want to live. I think 1t may drive qualified
Mexicans who live in the wrong part of town and don't want to
move into the Republican Party. I hate to see that happen.
MR. GUAJARDO: I pass the witness.
THE COURT: Did Mr. Rios vote for you?
A. l don't know. 1 would like to ask him.
tanalese — Direct - Guajlardo
1 CROSS EXAMINATION
2 BY MR. .R1I0OS:
2 @. Judge Canales, let me ask you about the presently
4 sitting County Court at Law Judges. How many presently
5 sitting County Court at Law Judges are Hispanic?
& A. Out of nine, five.
7 @. Judge Ferro was one of them?
8 A. That 1s correct.
G Q. Do you know whether or not he was elected in an
10 opposition, 1n an election in which he opposed a White?
13 A. I don't, I think he ran unopposed. That 1s my best
12 recollection. I don't know.
’ 13 MR. GUAJARDO: Your Honor, 1 am going to object.
14 That is beyond the scope of direct. We didn't discuss Judge
15 Ferro's race.
16 THE COURT: He doesn't know anyway. So go ahead.
17 By MR. R10S:
18 QQ. So, in fact, Judge Ferro was unopposed.
19 A. Okay.
20 Q. How about Judge Lozano?
el A. I think he was appointed and run, he ran opposed 1n the
2e Primary once. But not in the General Election.
23 Q. He was unopposed in the General Election?
24 A. That's correct.
£3 @. How about Judge Jimenez?
24
25
A. Was appointed, and I think he ran unopposed.
Q. How about Judge Rodriquez”
A. Miguel wes just recently appointed, $0 he 1s running for
the first time, this time out.
Q. So, out of five presently sitting County Court at Law
Judges that are Hispanic, only you, you are the only one that
actually won in an election against a White 1n the General
Election?
A. Right now, yeah.
Q. Okay. The District Court, I believe you testified that
Phil Chavarria is a District Court Judge?
A. That 1s correct.
Q. Do you know whether or not he was appointed?
A. I believe he was appointed.
Q. Has he ever had any opposition?
A. Not to my knowledge.
Q. Judge Rivera I believe was appointed at first, was he
A. Yes, he was.
Q. In fact, he beat Joe Crier in a Primary, did he not?
A. The Democratic Primary, he did.
@. And he was not opposed in the General Election?
A. No .
QR. Judge Mireles recently won the General Election against
a Whites is that cofrect?
FA TA IT A mT SRT Ems I TN YIN Z TTT Se
EAS PERE WN I CT RF
- EAN TAO MERE a rs -
Mn
24
25
Ie Ty,
A. That's correct.
Q. Judge Machado was appointed, has never had an opposition
in. a General Election: is that correct?
A. That's correct.
Q. Judge Gonzales, who 1s Henry B. Gonzales' son, has never
been opposed in a General election?
A. Not to my knowledge.
DD. So then, of the five Hispanic District Court Judges,
only one, Judge Mireles has actually won a General election
against a White; is that correct?
A. Just run recently like myself, yes.
Q. Would you agree with me, sir, that in your election you
did much better in the 20 percent and above Hispanic boxes
than you did in the 90 percent or above White boxes?
A. I would agree with that.
QR. Generally? Judge, you are familiar with the Arellano
race, are you not?
A. I am.
Q. Briefly, that was the election in which a Mexican-
American Republican who had been appointed by the Governor,
sitting Judge, was opposed by a gentleman named Mr. White,
who withdraw from the election and in effect endorsed Mr.
Arellano, and in fact, ended up winning the election; 1s that
not true?
A. That's correct.
24
2s
(J
{Canales — [rose i= Rios fe BL
Q. Overwhelmingly?
A. Yes, that's correct.
Q. You testified to that in your deposition?
A. I have since talked to Robert and he feels he didn't
work hard enough. But that is correct.
Q. In deposition with Judge Ferro, l.asked him a direct
question, I said, "Do you feel that Judge Arellano was
discriminated against in the election when people went to the
polling places?", and he said it sure seemed that way. Do
you agree with that statement?
A. You have taken in a vacuum, if you take it in a vacuum,
ves. But after, you know, Arellano, it was his race.
talked to him and he said, "There was Bill White, there was
Margaret White and the white name is a popular name, I took
too much for granted and didn't work hard enough." That is
what the candidate himself will tell you. 80, if. vou YOOk at
it in a vacuum, yes, it looked like it may have been affected
by race. But if you talk to the candidate himself, there may
be other factors.
Q. Have you ever heard of a candidate losing to an opponent
who had withdrawn and 1n tart had endorsed him 1n the
election?
A. 1 have never heard of that before.
Q. In fact, you told me in the deposition the only worse
situation is that of losing to a dead man; ls that correct?
Canales — [Cross - Rios 5-144
% 1 A. El Paso. I think that 1s where that happened.
ze MR. R10OS: Pass the witness.
3 REDIRECT EXAMINATION
4 BY MR. GUAJARDO:
vi 2. What does it mean toc you went you don't draw opposition
6 as a sitting judge?
7 THE COURT: Relief.
8 A. Well, Rolaids. Yeah, it means, I think, 1 hope, because
2 1 am coming up, that people think they can't beat me, that I
10 am strong and that they don't want to mess with me. If they
11 run against me, it means they perceive me as being weak. The
i2 Mexican-Americans, we have the run unopposed in my opinion,
13 are perceived as being strong candidates.
a4 RQ. By the Anglo community?
15 A. Everyone interested in running, ves.
16 MR. GUAJARDO: Pass the witness.
17 MR. RI10S: 1 have no further questions.
18 THE COURT: Thank you, Judge Canales. We appreciate
19 that.
20 A. It is a pleasure to be beck in Midland.
21 THE COURT: We are glad to have you back. Your next
22 witness 1s?
23 MR. GUAJARDO: Travis Shelton.
24 (Witness sworn.)
29 TRAVIS SHELTON, WITNESS, sworn
24
25
Be 147)
EXAMINATION
BY THE COURT:
Q. For the retard, tell me your name, where you live and
what you do, please.
A. Travis Shelton. I live in Lubbock, Texas, and I have
been practicing law there for almost 41 years.
RQ. All right. Give me a little bit about your background
and the many high offices that you have held in the State
Bar, how many times you have tried lawsuits here in this
Court.
A. I graduated from the University of Texas Law School in
1949, licensed to practice law in December of '48. 1 went to
undergraduate at Texas Tech University, and raised 20 miles
south of Lubbock and had been there all my life. I was
District Attorney of the 72nd Judicial District from 'S1 to
"Si. That encompassed four counties in the District,
Hockley, Cochran, Lubbock and Crosby Counties. I served
until 1957 and then went out in private practice where I have
been in practice ever since in the City of Lubbock. I served
8% a director of the State Bar from 1965 to 1968, and 12977-
78, 1 served as President of the State Bar. 1 still
participate in the sense of being on the Board of Legal
Specialization and some other high-paying jobs, Your Honor.
That is where I live. I would say in the background, I have
served as a committeeman, State District committeeman back 1in
ET PIA PT TR RS By VT CN TTY a TA Sr) TE
< IE ps A “eh HE (AS 2
Shelton -. By the Court o-146
the '60-'64 era, Democratic Party.
DIRECT EXAMINATION
BY MR. GUAJARDO:
Q. Are you still active in politics in Lubbock?
A. Not really like I used to be. In the past, 1n the last
10, 1° SEETE, I have spent a great deal more time with the
Bar Association, at which time 1 really have not been active
in campaigns. I certainly have followed them and been
interested in them, but not really took part in them
actively.
Q. So, you focused more on the Judicial aspects, Judicial
politics?
A. Yes.
QR. Are you familiar with the race for J.P. between McKinley
Sheppard and Mr. Saldania?
A. Yes, I remember the race.
Q. Can you state the races, for the record, of the
candidates?
A. Well, Judge McKinley Sheppard, who 1s still on the bench
incidentally, is black. Saldania is an Hispanic.
QR. And can you describe the area of Lubbock in which Mr.
Sheppard ran?
A. Well, part of his precinct is in the northwest portion
of Lubbock, which is one of our more expensive resident
areas, and sort of a Republican stronghold.
Shelton - Direct - Guajardo S—-147
* 1 RQ. And who won that race?
2 A. Judge McKinley Sheppard.
3 QR. Are you familiar with County Commissioner Eliso?
a A. Yes, I know Commissioner Solis.
5S Q. And he is Hispanic?
6 A. Yes, he 1s.
7 Q. And he ran against a Black gentleman and beat that
8 gentleman?
Q A. Yes. And 1'm sorry, I don't know his name. But he did
10 beat a Black candidate.
11 QR. Are you familiar with the Froy Solinas race against Ron
12 Givens?
13 A. Yes, I am.
14 @. And Mr. Givens 1s a Black man?
1S A. Yes, Givens is Black. And Froy Solinas is Hispanic.
16 @. And who won that race”?
17 A. Ron Givens did the last time around.
18 Q. And how did the Hispanic community and the Hispanic
ig voters vote in that race?
20 A. I think in the race where Givens defeated Froy Solinas,
21 it is my impression that a big number of Hispanics voted for
22 Ron Givens, even though he was running as a Republican.
e3 @. Do you think that Blacks and Hispanics are politically
24 cohesive in Lubbock County?
£5 A. Well, on some issues they are and some they are not. We
Bic ® oF re a Rag SEER Sle TET = = Ra SN SA ts CCG Ad a Ti SA
RE I TS ES AT RTT AS RI SL INTRA STE
Shelton — Direct - Bugiardo 5-145
very recently had a very hotly -- I'm sorry —— a
controversial issue arise 1n the county. For instance, the
location of a unit of the penitentiary system, TDC. Me.
Solis, incidentally, that would be in his precinct, one of
the sites that had been selected. And he has held some
public meetings and organized opposition against it, that
they don't want 1t 1n that precinct. On the other hand, the
Black ministers in their churches and their public
pronouncements, they are highly in favor of it because it
will bring a great deal of employment there. So on some
issues such as that, they are not cohesive at all.
@. What is the dominant party in Lubbock County?
A. It has been, Republicans have been the dominant party
now for, I think ever since Lyndon Johnson. Lyndon Johnson
was probably the last president that carried, presidential
candidate that carried Lubbock County.
@. And in your opinion, how do people vote in Lubbock
County?
A. You mean what party they vote?
3. ‘Correct.
A. Well, lately, about the only people that get elected
would be on the Republican ticket.
RQ. Do you find that they vote along party lines?
A. I think most in the last ten years, well, about the last
ten years 1s about the only time Republicans could be
24
ES
Shelton — Direct - Buajardo S146
elected, but it has done a flip-flop in that period of time.
Q. Do you think a minority Could win 17 he ran as a
Republican?
A. 1 don't think there is any question about it, if they
are qualified and have equal experience with someone else. I
think they could win.
@. Have there been any demographic trends 1n the recent
years as far as the minority community is concerned?
A. Yes, unquestionably in the past ten, twelve years. We
might even go back a little further than that, but
particularly in the last ten years in my. judgment, the
Hispanics have moved in great numbers to other areas of town.
1 have a Black family living two houses from my house, where
I have been, it has been traditionally in southwest Lubbock,
where there has not been any minorities, but now you don't
have to go two blocks to find a great number of Hispanics and
Blacks living in that area and going to the Overton school
that we are close by.
MR. GUAJARDD: Pass the witness.
THE COURT: Mr. Garrett?
CROSS EXAMINATION
BY MR. GARRETT:
Q. Mr. Shelton, I believe you spoke of presently sitting
County Commissioner Eliseo Solis?
A. Yes.
24
25
Shelton — Croee = LGarwett H=150
Q. You are aware, are you not, Mr. Shelton, that Mr. Solis
was elected to his district only after a lawsuit was filed to
redistrict the Lubbock Commissioners’ Court?
A. l didn't vyecall. 1 knew there was a sult back there and
the Commissioners’ Court did in fact redistrict the
Commissioners' precincts. But l''wasn't aware of how it
changed that particular ares Belin: 1t happened.
G. You are aware, are you not, that he runs from primarily
a minority area”
A. Well, I'm not so sure 1t 1s primarily. There 1s a
number of minorities 1n that area. But, you see, that
precinct covers the city of ldalou, too, which 1s
vedo tantly Anglo.
RF. All right. 1t certainly has more minorities in that
precinct than any of the other Commissioners precincts; 1s
that right?
A. I would think that's right. It would be close, the one
between that and the southeast quadrant, which is Precinct 2.
Q. You t5ihat about Froy Solinas and the race with Mr.
Givens in which Mr. Givens defeated Mr. Solinas; do you
recall that?
A. Yes.
Q. Do you also recall that Froy Solinas was elected as a
result of redistricting as a result of the lawsuit 1n White
versus Register, which outlawed at large elections for State
24
23
Shelton —- Crosse — Barrett Ee 1
Representatives 1n Lubbock County?
A. Yes, lL. think he beat Delwvin Jones, 1f | recall. Delv
hat ini fact been sort of active in redistricting and king
beat himself out of a Job.
Q. All raght, And I take it you are intimately familiar
with Jones versus Lity of Lubbock, are you not”
A. Well, I remember that, yes.
Q. As a8 matter of fact, you and 1 opposed each other and
you represented the City, didn't you?
A. Well, 1 assisted, yes.
Q. The City Attorney?
A. Along with the City Attorney's office, my firm did.
Q. And vou recall, do you not, that prior to that lawsul
in the hundred-year history of the City of Lubbock, no
t
minority had ever been elected to the City Council; 1s that
right?
A. 1 think that's right.
Q. Il think so. And after the election, I mean after the
lawsuit and after it was successfully completed for
plaintiffs, Mattie Traehoe, a Mexican-American, and Mr.
Patterson, a Black, were immediately elected to City Counc
City of Lubbock; isn't that right?
A. Yes, they sure were.
GB. And they still serve, don't they?
A. Yes.
i
4
| a LH]
Shelton
(3. They are elected from primarily minority
isn't that right?
A. Yes. 1 think that ie correct. And
don't remember the percentages, but certa
corvect.
Q. And the truth of the matter 1s, no minority has ever
been elected in an at large election in Lubbock County since
1t was founded: isn't that right?
A. I believe that's correct.
MR. GARRETT: Thank you. Pass the witness.
MR. GUAJARDO: I have no further questions.
THE COURT: Would you please, Mr. Shelton, describe
downtown Crosbyton?
A. Downtown Crosbyton?
THE COURT: We have counsel that have never been to
Crosbyton here in the courtroom.
A. Well, they have missed an experience. The Courthouse
doesn't sit square. It is about the only one I know of that
sits at an angle, so it 1s without a town square. They have
8&8 great museum there, Crosby County Museum, incidentally.
Pecple ought to stop and visit when they go thro
THE LOURT: Thank you. Thank you. You may step
down. We will take a recess now, until 1:30. Thank you.
MR. HICKS: Your Horror, 1 just want to note that Mr.
Shelton confirmed my argument that Crosby 1s different.
I A TP TNT FI OE ES EET TF
“8 Rh ¥ 30h
24
in
YHE COURT: He did. 1. will take note of that fact,
it is citferent.
(Noon recess.)
{Open Court.)
THE COURT: All right. If you would, please raise
your right hand and take the oath.
(Witness sworn.)
DELBERT A. TAEBEL , WITNESS, sworn
EXAMINATION
BY THE COURT:
Q. Tell me your name, where you live and what you do,
please.
A. My rtame is Delbert A. Taebel. l.l1ive in Arlington,
Texas, and 1 am a Professor of Urban Atfzivs and Political
Science at the University of Texas at Arlington.
Q. Give me a little bit about your educational background
and your teaching background, if you would, please.
A. I have a BA in English from Ripon College in Wisconsin.
1 have an MA in Public Administration from San Jose State
University. 1 have a PhD in Government from the University
of Texas at Austin. I have been teaching at the University
of Texas at Arlington since 1970 in the Institute of Urban
Studies. I teach urban politics, research, intergovernmental
relations, and a variety of other subjects relating to the
urban policy process.
A RR Ry a a A SO ERIN Aa
24
25
Yaebel — By the Court 1594
Q. All right. You were hired in this case as an expert,
were you not, for the defendants?
A. Yes, sir.
Q. And you have testified before”?
A. Yes, sir.
estified in ct
Q. The reason I know that 1s because you have
this Court before, Dr. Taebel.
A. Yes, sir.
Q. How many times, roughly, would you say that you have
appeared as an expert witness in Federal and State Courts?
A. In Federal Courts, approximately 135 times. In State
Courts, approximately five times.
THE COURT: Okay. I will recognize you as an
expert. You may proceed, sir.
MR. HICKS: Your Honor, before I start questioning
Dr. Taebel, there are some minor kind of housekeeping
matters, very minor to correct some exhibits. I have already
told the plaintiffs about this, and to supplement two
exhibits by putting in a couple more races that Dr. Taebel
analyzed. Can 1 run. through that?
THE COURT: Sure.
MR. HICKS: Exhibit D-&6, on page 17. I have had
some complaints about using State issued binders from the
plaintiffs.
THE COURT: Okay.
Ww
@))
24
25
MR, HICKS: Onipasge 17, 1 don't know if that is
headed Ethnicity’ or "Race', but the ethnicity of Mr.
Jacobs, ‘1 don't think it is in the record even that he is
Mister, but it 1e to De changed from White to Black. This is
skipping around a lot. You will have to pull out another
book. It ie D-B, 0 it will be in the second volume, on page
41. The ethnicity of the candidate, Kennedy, should be
changed from White to Black.
THE COURT: Somehow I already had that.
MR. HICKS: While you are still in D8 --
THE COURT: I guarantee I haven't thumbed through
all of this book to make the corrections. Somebody has
already testirien on this, or made the change for me, I don't
know which.
MR. HICKS: Still, while you are in D-8, 1 have
handed your courtroom deputy really three sets of races to be
inserted into the Travis County analysis. One, and the pages
are numbered at the bottom, one involves the County Court at
Law No. 7 race in 1988, Democratic Primary, where the —-
which has already been analyzed with the independent variable
being for the candidate, Castro. In this analysis, the
independent variable is for the candidate, Kennedy. Another
one is page 44(a) through 44(d) of that page and D-8B.
THE COURT: I have inserted.
MR. HICKS: Still in D-8, at the very end, pages 353
24
23
through 60, two races are analyzed, 1984 State Senatorial
Democratic Primary and the Democratic Primary runoff. Then
all the way over to the third volume, Exhibit 39, D-39, which
is the Tarrant County elections analysis.
TH m COURT Allivight.,
MR. HICKS: On page 1, there should be a notation
added, and really anywhere on the page would be appropriate,
that the vote total tabulations were before recounts. And
then after. recount, Hicks lost. That is (he notation. ANd
then on page 61 of that same exhibit, the ethnicity of
Candidate Davis should be changed from Black to White.
One final housekeeping matter on the exhibits. Mr.
Garrett has told me that one set of the Dallas County, which
is D-&, package of elections, in his somehow ehded up being
mis—-collated, nobody knows at what point. I am hopeful they
aren't mis-collated from the exhibits we handed you and Mr.
Polino. He has agreed that there is no problem getting 1t
straight at the end of this, if it is okay with the Court.
THE COLIRT: That will be fine.
MR. ‘HILKS: And. finally, 1 would like to offeri al)
of our exhibits that haven't already been admitted into
evidence.
THE COURT: They will be admitted.
MG. IFILL: Do you have any corrections on Harris
County 1 might have missed? For instance, the 1982 District
6 1 Courts?
c MR. HILKD: That sounds like a leading question, In
3 the Harris County exhibits, which is D-5 on page 57, 37, the
4 ethnicity of Candidate James should be changed from White to
= Black and Shaver, Black to White. It 1s reversed.
6 THE COURT : Shaver and James are reversed, 1s that
7 what you are telling me”
8 MR. HICKS: Yes, the ethnicity of two candidates ie
Q reversed. And that is 1t. So, once again, 1 will offer all
10 of the exhibits into evidence.
11 THE COURT: The changes have been made. Fine.
ie Thank you. They will be admitted.
13 DIRECT EXAMINATION
14 BY MR. HICKS:
15 Q. Dr. Taebel, you told the Court about your academic
16 background to some extent. One thing I wanted to ask you
17 about your background as expert, have you ever testified 1n
18 Judge Bunton's Court before in the context of analyzing
i partisan elections in voting rights cases?
el A. No .
23 Q. And that is what you are analyzing here; 18 that
2c correct”?
£3 A. That's correct. This is the first time I have analyzed
24 partisan elections.
25 GQ. Can you, in addition to your academic background, can
2&4
25
81]
| pt
un
D Taehel ~iDirech i Hicks
you tell the Court something about whether you have any
practical experience in political activity in: Texas?
A. Yes. I have been involved in the Democratic Party
almost 20 years. I have been precinct chairman, member of
the Tarrant County Executive Committee for almost 18 years
now. I have been a delegate to two national conventions, one
in 1974 to the mini convention 1n Kansas City. That was what
they called the Charter Convention, which set up the Charter
for the Democratic Party. And I was a member of the
Credentials Committee in the 1976 Democratic Convention.
That committee meeting took place in Washington, D.C. I was
a floor leader for the Jimmy Carter forces at that time. 1
also served as the campaign co-chair for Tarrant County in
the Carter campaign in 1976. I have also been involved 1n
dozens of other political campaigns, either working in the
trenches or advising folks or doing political polling,
whatever help I could be. So, I have been involved,
essentially, in politics, especially Democratic Party
politics. I have been a delegate to probably every State
Convention since 1972. And at the State Conventions, [I have
served on several occasions as a member of one of the State
Committees. In fact, in 1986, 1 was a member of the Platform
Committee, and I have been a member of the Rules Committee 1n
previous State Conventions. I have also testified
essentially before the State Democratic Executive Committee
PN 7 Tr Th ZAR les Sp is Se ER Lt Tb a AL Shale
at LAI Ee eR
ARE RT DE ANT NC Sp eS ye
Taebel: —Diregti— Hicks tl) SE
on rule changes and procedures, and I have been asked by
National Democratic Committee to submit written
recommendations on rule changes and procedures.
G. Have you ever been involved in any legal activities
outside the context of a lawsuit involving either opposition
or support for the creation of single—member districts?
A. Yeah, I have worked on behalf of, I have worked 1n two
campaigns in Arlington for single-member districts; right.
In fact, liwae really the co-chair of the single-member
district drive in Arlington backiin 1978, and am currently, 1
guess what they call a steering member committee on the
Arlington plan, which would establish, I think three at large
and four single-member district, 1 guess it ie four and five.
Arlington is currently nine at large. But I am also on the
steering committee in Arlington for that committee.
Q. Have you ever done any work for NBC Television Network?
A. Yes. 1 was a State election supervisor for NBL News
Elections in, oh, I think it must have been the middle '70's
sometime for several years. Dick Murray, as a matter of
fact, from the University of Houston, took over that job from
me sfter: 1 Wi 1 So Tinac: 5 lot of experience doling work in
9 po
precinct work and setting up precincts for analysis in those
years.
Q. Can you tell us what the scope of your activity or
undertaking was in connection with the case we are on”?
A. Well, one of the things that the scope deals with 1s,
what kind of inquiry should be made in these kind of cases.
l. basically look at the 'Gingles’' injunction, ‘andl look at,
1 try to make a searching, I try to make a practical and {ry
to make a functional analysis of what 1s going on in the
community.
Q. What do you mean by searching, practical, functional
analysis?
A. It seems to me in a searching examination, you certainly
want to examine as many elections as are possible and that
the Judge will see. We have certainly done that. Maybe we
et
have done too many. But the point is, it seems to me 1
really requires more than just a handful of elections 1f you
really want to make a searching inquiry. And 1n most cases,
we have done 20 or 30, depending on what county we are
talking about. In terms of practical, 1 happen to teach
statistice and do a lot of research. It still seems to me
that ecological regression analysis, the numbers don't always
speak for themselves. You have to interpret those numbers 1n
terms of reality. You have to interpret those numbers in
termes of. your own experience and what 1s going on. don't
think that one can just look at numbers and say, "1 read this
number and this is 95 or 98, and here is what 1t means.” It
seems to me, the inquiry has to be practical, and in fact I
certainly agree with Dan Weiser who took the view that, you
24
25
Taepbel — Direct — Higks i atl
know, a lot of times you can do fairly unsophisticated
research and come up with the same conclusions as
statisticians. The third aspect YY ithink 1 look at 1s
functional. What 1 mean by that, we are trying to answer the
question, "How does the political process in esch of these
counties operate, how does it work, how can you best describe
it, what factor best describes what 1s going on 1n the
community?" And so, that 1s what 1 mean by taking a
functional approach.
0. What kinds of things, just basically, not going into
great detail, do you look at when you are taking this
functional approach? What are some of the first things that
come to mind that you need toc look at?
A. Hell, again, 1 think most of us who. do this kind of
research, the first thing that we want to look at 1s, other
elections. That is going to be the basic focus, 1 think of
our inquiry. So, that is exactly where I start.
Q. Do you have a ready-made information base, or do you
have to go gather an information base, and if so, what is it,
whether vou already have it or have to go gather it”?
A. 1 think we always have to go gather, get new
information. 1 have been involved in a number of counties 1n
the past, so I certainly have some background in the county.
In addition, in this particular case, 1 asked several friends
of mine at various universities in the community to assist me
0
24
25
aebel’ = "Niyrvect. Hicks 5-16
in projects, since they are more or less on the ground there,
and they are more knowledgeable about current events and
current problems that are going on 1n the community.
Q. What did you ask them to do”?
A. In most cases, I asked them to help me analyze the
boundary changes for precincts since 1980. And Tom Sanders
at Lamar University, and Dr. Pearson at Lubbock, Texas Tech
University, assisted me in that role. There was one other,
too. I was just trying to remember. We also had some people
from El Paso, UT Tyler, beck in the old days, but 1 can't -—--
there 1s one other.
Q. Bexar?
A. Pardon me. Bexar County. Yes, we had Dr. Gibson from
Trinity help us out there.
Q. Well, when you said you had them help you analyze the
precincts, what are you referring to? Is this the stuff that
Dr. Engstrom and Dr. Brischetto testified about that kind of
referred to as the demographic data?
A. Right. This is the demographic data whereby we can
determine what the racial composition of each precinct 1s 1n
the community. This is a very tedious job, and as you know,
in 1980, the Census Bureau published census information about
each precinct, but every county in the state basically
changed its precinct boundaries around 1981, 1982, because
the law required that. So, about 1982, virtually all the
nl
24
eS
Taehbel — Direct =rHicks =
1980 data was, 1] won't say useless, but less than useful,
because many of the precinct boundaries had been changed.
And what you really have to deo, you have to go back and look
at the old boundaries and new boundaries to determine whether
you can continue to use these precincts. That 1s basically,
that is the type of research I asked these other gentlemen to
do in one case, you know, a professor at UT Tyler. “And then
1 also, they were also kind enough to send me other kind of
reports on the county and talking about county politics
there.
Q. All right. On the election data that you gathered, you
say you gathered as many elections as you could?
A. Right.
Q. I SUrpOSe there is always more to gather, but what kinds
of elections did you look at?
A. Well, in this particular analysis, we looked at some
state-wide races. We thought it would be kind of useful as
much as possible to see how a state-wide candidate did across
the nine different counties. It seems to me you can tell
something about partisan politics, how 1t works, how the
process functions if you take a look at any particular race,
several races, state-wide races and look at them as they
occur in the various counties, see if they had more
Democratic votes, more Republican votes, or how the process
works.
NT FC SET A 1 SAE YT Te NL WIN TT a wet SS Teen
24
25
Teebelli-" Direct — Hicks Blob
Q. Or, I suppose there 1s some kind of White bloc voting
that prevents minorities from achieving victory, minority
voters from achieving victory?
A. Sure.
Q. What other kind of crises”?
A. Well, since this case focuses on District Courts, we did
try to look at all the District Lourt races that were
available, plus we, generally speaking, looked at the County
Court at Law races. They are very similar 1n terms of their
operations and functions, and to have people compete to get
elected to those offices.
RQ. I'm not sure whether you mentioned other District Court
races.
A. 1' said we did look at District Court races, right. And
again, in some of the, in some of the counties, especially
like Ector, there weren't too many District Court cases, or
at least contested District Court cases.
Q. You mean races”?
A. Races, because incumbents basically ran forever 1;
seems, and there was no contested races. Lithaink that 18
true in a number of counties, Midland, too.
Q. Did you analyze any other kind of races, did you Just
look at minority candidates versus White candidate races?
A. No. We looked at, we looked at White races in which
White ran against White. We looked at when Whites ran
24
25
Taebel. — Direct — Hicks 0-165
against Republican minorities, we looked at a variety of
different races. Because, as 1 said, it seems to me if you
are doing a function analysis, what you are trying to do 1s
figure out how the political process works. Does 1t make any
difference, for example, who is running in a particulsr race
to describe what ie going on. So, we picked 'a variety of
different races.
Q. All right. By who, you don't mean individuals, you mean
the race of the candidate?
A. That could be one factor, right. Sure.
Q. Okay. You were starting to tell us about demographic
data, and 1 want you to move, through quickly. But tell me
what you do, the essential steps that you did, or the pecple
that you consulted and that you talked to in the local
communities, you went through to work up the demographic
data.
A. Well, basically we started with the 1980 census data.
The Census Bureau published a listing of the racial
composition of each precinct in all nine counties back in
1980. And the, basically what I did, I got data or
information from each Commissioners' Court on what boundar,
changes had been made subsequent to 1980. Sometimes -- well,
let me proceed on that line. There 1s two different
strategies that we followed. What we do, we get the precinct
boundary changes and we analyze those changes to see 1f the
ER RS ER RRO SS STS EE TYE
RA TAR RS
Teebel '— Direct — Hicks B—1b&
changes were major Or minor. And 1f they were major changes,
we basically dropped that. precinct out of cur analysis. I
used what we call a 10-10 Rule. ] can discuss that if anyone
wants it discussed, but it is the kind of rule —-
Q. I don't think anybody wants 1t discussed, but you can do
1t anyway, very briefly.
A. If the precinct changed more than 10 percent and the
precinct was less than 10 percent homogenecus, 1f the
precinct changed more than 10 percent and the precinct was
more than 10 percent homogeneous, we dropped that precinct
from analysis. In other words, 1f the change was more than
10 percent and the racial composition of the precinct was
greater than 10 percent or that 1t wasn't homogeneous, then
we would drop that out of the analysis.
Q. By the change more than 10 percent, what do you mean”
A. I am talking about the precinct boundary changes. ih
they changed Precinct 151 by more than 10 percent and the
precinct was less than 90 percent homogeneous. 1f the
precinct changed less than 10 percent and the precinct was
more than 90 percent homogeneous, we kept the precinct for
purposes of analysis. If it did not meet those criteria, we
dropped the precinct from analysis.
Q. By precinct change, you mean population or just the
geographical area”?
A. We basically tried to find population. In some cases,
RT SS BCI TH ENTS BAR EYRE MARE ee YT
Yaebel — Direct — Hichs S=1¢é
the Commissioners’ Court don't give you a precise estimate of
how the changes were. They will say, cemetery along such and
such. a roadie transferred to Precinct 15]. So, a lot of
times, you don't know exactly, unless you hire on the ground
in whatever community you are talking about, and that 1s why
basically I used faculty members and other experts who were
in the various counties.
Q. Now, did you do all of this yourself or people under
your direction, or did you rely on some work that others had
done?
A. Well, I did all of this myself. But 1n addition to this
type of analysis, we also found out that certain counties 1n
the state have updated their precinct data and we used the
data that was furnished usually by the Election Bureau. That
would be the case, for example, in Dallas County and in
Austin, or Travis County. But we also used Dick Murray's
data from Houston.
BD. Once iyouigot all this --first, '1 take it that is not a
simple task?
a. No, itis a& very tedious task. ] did Dallas County last
January or February, end it tock me something like 10, 12
days to go through the whole process and found out the Dsllas
Election Division had done 1t ahead of me. So, 1t was a very
tedious process, but I had done this type of work agsin when
1 worked with NBC News Election, because our task at NBC News
TYRE TT TT A na YY Te
24
es
Taebel - Direct —- Hicks H5=-16H
Elections was to identify precincts that had remained intact
from the last election, because we used those precincts for
estimating how the state would vote in the current election
or the upcoming election.
GQ. Once you get the elections, become the Universe of
Elections you are going to look at, once you get the
demographic data, what do you do to it?
A. Well, that is basically when we start our statistical
test. And generally speaking, I have used regression
analysis, because that is the most common type, and in my
estimation, the most reliable type of statistical test to
estimate voting patterns.
Q. Did you do any homogeneous precinct analysis?
A. No, .l didn't do any homogeneous precinct analysis. The
reason I did not 1s because we were looking at all three
groups of voters, Blacks, Hispanic and Anglos. In many
communities, you can't really find homogeneous precincts,
especially for Hispanics or for Blacks. And that 1s the
reason we basically did regression analysis. There 1s one
exception in that whole process, and that 1s in Jefferson
P_
—
County where basically you see the county consists of BE
and Anglos. There are Hispanics in Jefferson County, but
about three or four percent, and they are scattered
throughout the entire community, so you only use Blacks and
Anglos in Jefferson County.
Taebel —- Direct — Hicks 5-169
. 1 QR. Dr. Engstrom testified breifly about weighting”
2 A. Uh-huh.
3 3. ] don't want to ask you what it 1¢, but did vou do it?
4 A. Well, 1 didn't do it in this particular analysis. I
3 have done weighting before, and as Dr. Engstrom testified,
é you really get the same results with or wihtout weighting,
7 especially when you have large numbers of precincts like we
8 have here. 1 did it in the Dallas case, .']l did it five
g different ways.
10 Q. What Dallas case”
11 A. The City of Dallas case. And basically what you come
1& out with 1s maybe a one-one hundredth of a decimal point
13 change. It requires another operation, statistical analysis,
14 and I didn't think 1t was worthwhile. And, by the way, there
15 is a lot of criticism of weighting in the literature. Some
16 people question whether weighting is the appropriate way to
17 analyze the elections, or to analyze the data.
18 Q. To analyze what, I'm sorry?
19 A. Analyze data.
20 Q. Did you look at both Primary elections and General
21 elections?
ec A. Yes, we did. But our primary focus was on, or central
ed focus wae on General elections, but we did look at both
24 Primary and General elections.
23 Q. Why did you concentrate on General elections”?
eo
r=3
23
Taebel ~ Darect — Hicks 5.-170
A. Well, when we talk about the voter of choice and the
election of the voter of choice, that is the final --
BG. Do vou mean the candidate of choice?
A. The candidate of choice. 1'm sorry. When you talk
about the candidate of choice, that is the final step in the
political process. The Primary is a filtering process. You
have to understand the State of Texas and a lot of other
states go through two stages in order to be elected to
office. The General Election was a critical step. But the
Primary is certainly an important step in partisan elections,
because that is a, that precedes the General Election.
GQ. Do you take the same approach to analyzing Primary
elections that you take to analyze the General Election? If
you can just generally talk about 1t. I know we are going to
talk about it more later.
A. I have been very critical of those who have analyzed
Primary elections, and the major reason I have 1s that we
assume, in Primary elections, we assume in our analyses that
Blacks, Whites and Hispanics vote in equal proportions in the
Republican Primary and the Democratic Primary. In other
words, we have a precinct, for example, that 1s made up of
100 Blacks and 100 Hispanics and 100 Whites, and we, we run
our regression analysis using a Primary election as 1% those
groups participated equally in each party's Primary. That 1s
not true, we all know that 1s not true. Infact, from all
24
25
Taebel — Direct — Hicks 5-171
the studies we have ever had, we can see quite clearly that
Blacks and Hispanics participate ostensibly in the Democratic
Party, and the Whites split, probably 30/350, depending on
what county vou are in and participate in both the Democratic
Primary and the Republican Party. What that essentially
means 1s that when you do regression analyses and you get
your regression results back, you can't rely on them to tell
you precisely what the White voters are doing. It 1s pretty,
pretty accurate in terms of Hispanic voters and Black voters
when you are looking at the Democratic Primary, but 1t is not
very accurate when you are looking at the White voters who
participate in the Democratic Primary. What I basically am
saying is, it, generally speaking, underestimates how White
voters voted for a minority candidate in the Democratic
Primary. L.et me see if 1 can explain that briefly. Let's
say you have 100 White voters in precinct, in a precinct and
your overall estimate is that Whites cast 10 percent of their
votes for minority candidates. Let's say now we are assuming
all 100 White voters voted in the Democratic Party, and as 1
Just said, —-
Q. Do you mean Primary?
A. 1 mean Primary, and as 1 just said, that is probably not
true. Let's assume for the moment that 50 of them, or at
least proportionately 50 of them participated 1n the
Democratic Primary and SO of them participated in the
TREN RT Ld SRS ANS A SER 7,
IAS OA Cy Sh ROTA FE CROWN] EI Ye hag
Taebe)l — Direct = Hicks Ee
Republican Party. Now, 1f your estimate --
Q. Republican Primary?
A. Republican Primary. If your estimate 1s 10 percent are
voting for the minority candidate based on 100 voters, 1t
would double 1f you have 30 voters. Irn other words, 1t would
go from 10 percent to 20 percent, because you are actually
talking about 10 out of S50 rather than 30 out of 100. So,
regression analysis and their results frequently skew the
results. I don't have any problem, by the way, 1n people
using it. It is just that one has to interpret it. One
can't just take the results that come out 0f the computer and
say, “Here, 1 told you so.” You have got to say, "Wait sa
second now, how can we interpret the results and give us a
better estimate of how Whites voted in most cases?" We
usually don't have to worry about how Blacks or Hispanics
voted.
Q. You mean in a Primary?
A. In 8 Primary, right. Now, again, if Whites and Blacks
and Hispanics all participated equally in a Republican
Primary and a Democratic Primary, then the regression
analysis would be perfectly legitimate and suitable. But
that is really not the way the real world works out there.
Q. How do you know?
A. Well, because 1 have looked.
THE COURT: You have been out there in it?
Li
BY
EE
)
Taebel Direct =u Hicks 5.175
“ 1 A. I have been out there 1n 1t. And by the way. all of
F these analyses we have seen, even by the other expert
3 witnesses, clearly shows that Hispanics, that Hispanics and
4 Blacks participated, are heavy supporters of the Democratic
5 Primary. In some cases, many cases as a matter of fact, 1t
6 reaches 100 percent. And frequently reaches well over <0
7 percent. But all of the sheets I have, on every page, you
8 can pretty well estimate how, how the, how the White voters
? vote 1n each county. In addition, by the way, all you have
10 to really do is look it up in the Texas Almanac and you can
11 actually get who participated in each of the county's
12 Primaries in 1980 or 1988, whenever you want. And. basically,
13 that is a& valuable tool on how people vote.
14 Q. You mean you can look up and see how many people turned
15 in the Republican or Democratic Primary?
16 A. That's rime, That's right.
17 Q. I would like to, just as an example, and since we will
18 end up probably starting off with this county, look at
19 Defendant's Exhibit 6. That is the Dallas County election
20 package.
21 A. Okay. Any page”
ec BR. Turn to psge 1.
23 A. Okay.
24 Q. At this point I am not asking you to really analyze,
eS tell us what these analyses show, other than I would just
24
25
NS EE A XN FE RR TR RM TE SR DR TR
Taebel —- Direct — Hicueg End i T
like you to explain what the, what the first, what pages |
through 4 of that exhibit shows. Firstoof all, is the first,
is that a package that you put together for each election you
analyzed?
A. Yes. Each summary sheet summarizes a single election in
our overall series of elections.
Q. And so the presentation of your analyses will be the
same through all of these counties that you have done
analyses?
A. Yes. But I want to assure the Judge I am not going to
go through all of these elections. We are just going to use
examples. Yeah, let me explain that summary sheet, 1 £1 ‘can,
The top half of it, the top third of the page indicates what
election, what county. It shows the two candidates who ran,
their party affiliation, their ethnicity, the actual votes
they received in the campaign and the percent vote they
received. That 1s the race we are selecting here. In this
particular case, we are regressing on the percent vote
received by Candidate Winn, and the next series --
Q. What does regressing on?
A. It is a regression analysis, this is the dependent
variable and we will regress that on the independent
variable, which is the racial composition of each of the
precincts. The sixth block that you see on the right, in the
middle of the page there to the right, our correlations are,
BEE 00 rs mL de Sh SR
RE TSE t
23
24
23
Taebel =» Direct — Hills 5-199
which you have talked about extensively so far 1n this Court
case, and slow, which is B. Those particular statistics are
important to me more, more in the sense of what they can tell
us about the voting pattern than anything else. And voting
pattern then, the estimate of voting 1s indicated at three
blocks at the bottom of the page. In this case, for example,
we have estimated that White voters gave Ms. Winn 36 percent
of the vote, Black voters voted 100 percent end Hispanic
voters voted 84 percent for Ms. Winn.
Q. Inthe third block at the bottom, 1t 1s headed,
‘Estimated Vote Percentage for Minority/Winning Candidate’.
A. Right.
Q. That doesn't mean, estimate, that you always have a
minority winning candidate; right? os
A. No. It is either/or, is what 1t means. In some cases
where we have White on White, we frequently will take the
winning candidate just to see who supports the winning
candidate, which particular group supports the wining
candidate.
@. Would you look at the tabulations in the third block,
the numbers vou put in, snd those are, for .instance, White
voters, you have .36 in this instance. Does that mean .36 of
the White voters voted for Candidate Winn?
A. That is actually 36 percent.
Q. I'm sorry.
Taebel — Direct - Hicks 5-176
1 A. We never have learned how to move a decimal point vet.
Multiply that by 100, it will come out 3&6 percent. That
mn
3 indicates 36 percent of the White voters, and it 1s really
b not White voters in all ceses. I want to make sure we
S understand that. In many cases, we don't have actual White
6 voters in our demographic analysis. We just have total
i population that 1s White. So, this would really be percent
8 White who voted for Ms. Winn, and so on down the line.
Q Q. A311 1 wanted to try to get straight is ——
10 A. joam trying to get something else straight, though.
11 Q. Okay. We can get together.
12 A. Okay.
ofa Q. And get two things straight. Looking at the third block
14 we can, that is always talking about percent for, and you
iS look back up at what is listed as the dependent variable,
16 that is the candidate.
17 A. That ies the candidate that we are estimating those
18 groups of voters voted for.
iQ Q. Okay. Now, let's turn to page 2, and very quickly go
20 through this. And the first thing I would like to ask you
el about it 1s to explain when you said on the third block ‘on
od page | that, for instance, 36 percent of White voters, 1t
23 doesn't mean White voters really?
24 A. Right.
eS G. Is that, where does that piece of information show up on
24
£5
ot
Tachel — Dirvrecti| — Higike 5-177
page 27
A. Well, let me just, let me just explain this page here.
This 1s what we call a scattergram, and 1t shows the
observations relating to the percent population which 1s
White for each precinct, and on the left hand what 1s called
the 'Y aie, the percent of vote for Winn, Where we get the
information, how we calculate the percent of Whites who voted
for Ms. Winn is by looking at the intercept, that 1s, at the
lower left hand corner, it says, Intercept, SE'. And you
can see the intercept 1s .99. Point $9281, s0 on and £0
forth. There 1s some other information on there which would
be useful 1f we were doing a sample instead of a total study
here. And the next 1tem you see 1s slow, and 1n parenthesis
behind that you will see "SE. Then you will see minus
. 62893. The way you calculate the votes cast by Whites for
Ms. Winn 1s to take the slow and add 1t to the intercept. In
this case by adding it to the intercept you actually subtract
.62 from .99, and I hope that equals .36.
"THE : COURT 3 It doesn't, but ——
A. Close enough.
YHE COURT: That 15 close enough. Actually 1t ends
up .36, but you have to take other figures to get it.
A. Okay.
YHE: COURT: Three seven. Sixty-two from 99. 1s 37,
but if you take those other decimals, 1t makes 1t 36. Okay.
Taebel — Directi'— Hicks 5-178
a. Okay.
BY MR. HICKS:
Q. There is, the notations below the chart there starts off
with 363 cases plotted.
A. Right.
A. What are the cases”?
A. Those are the precincts.
QR. Does that mean 363 precincts have been plotted?”
A. Yes.
Q. And we are close to finishing this. You have a whole
series of numbers scattered across the scattergram?
A. Right.
Q. Some one, some two, some three. What do those 1ndicate?
A. Those indicate the numbers of observations at each cof
the points which the number is located. So, for example, 1f
you start at the upper left hand side, you will see ABZ21 ,
under that you will see 377. Now, we start using
alphabetical characteristics when the number of observations
exceed nine. So A, 1 believe would indicate 10 observations
and B would indicate 11 observations. I don't have the chart
from the SBSS manual that explains that, but we use alpha
characteristics when the number of observations exceeds nine.
Q. And the observations are the precincts?
A. Right.
Q. Now, are there some instances in which the precincts get
20
24
25
Tacbel — Direct = Hicks El)
aggregated? That is, instead of 363 cases plotted, meaning
363 precincts being plotted, are there times when 1t really
turns out to be more precincts than that?
A. Well, 1n some elections where you aggregate precincts,
for example you might combine precincts one and two,
actually, it would be more precincts than that, but for our
purposes of analysis, that 1s treated as one precinct.
Q. And are the rest of the scattergrams explained 1n a
similar fashion?
A. Yes, they are.
Q. And this explanation applies across all of these county
elections that you have analyzed?
A. That 1s correct.
Q. Okay. Can you, now that we have got everything loaded
in the computer, we have got everything set up, tell me what
your basic approach to doing this was, once you had all of
this loaded together.
A. Well, as 1 said before, what we are trying to do 1s
determine as best we can to describe how the political
processes work in each of the nine counties. And thus, what
O we are trying to do is determine whether partisanship,
example, in this case, is a good way or a bad way to describe
political behavior in the community by voters.
BQ. Why, 1 mean vou were, 1 take it, trying to find out if
there was White bloc voting sufficient to deny minority
Taebhbel —~ Direct = Hictke 5-180
1 voters the candidate of their choice; right”
2 A. That is one possible outcome 1n my analysis. There 1s
3 several possible outcomes. Iam trying to find out how the
4 political system operates. One possibility, one alternative,
5 one hypothesis would be their partisanship, 1s the best way
6 to describe what was going on. Another way, another approach
7 one could take, or one possibility, is that recial polarized
8 voting is the best way to describe what 1s going on.
G QR. What does it mean, the best way to describe 1t”
10 A. The best way to describe is which makes the most sense
11 in showing how voters vote 1n a particular community.
12 0. Okay. Can vou tell me if there is anything that makes
13 partisan elections different from non-partisan elections, in
14 your view as a political scientist?
15 A. Well, there is a lot of things that make partisan
16 elections different from non-partisan elections, six or seven
17 points I think one can make. In the first place, of course,
18 candidates who run in partisan elections are identified on
1° the ballot as either, in most cases, Democrat or Republican.
20 So that voters know what party the candidate belongs to. And
21 that, as we alll know, at ‘least political scientists all know,
ec is an important cue on how voters react. As a matter of
£3 fact, probably no other facet or aspect about a candidate
24 tells us so much about how voters vote than party ID. All --
23 Q. You said, "Probably".
re FG I a Py ET IS Fy TV Rare EM SA TT Nf Ee STR RT ARS A SA ADS DE SED ARS Crh Jie SA a oy = r oe et eT >
Taebel — Direct = Hicks 5-181
* 1 A. Well, 1t does. It is the overwhelming factor in
2 describing how people vote. All of the studies out of the
3 University of Michigan, all of the studies on voting behavior
4 in the United States clearly show that 1f I know the
S partisanship of a voter, 1 can predict with fairly strong
6 accuracy. I am not saying 100 percent, but fairly strong
7 accuracy how that voter 1s going to vote.
8 QR. Do you know if there is any dispute 1n the political
SQ science academic community with your statement about
10 partisanship as a factor?
11 6. . Not at all. As a matter of Tact, Dr. 'Engstrom, in the
12 deposition, indicated partisanship is a major factor 1in
13 explaining voting, in describing voting behavior.
14 Q. I suppose something can be a major factor, but not be
15 the major factor?
16 A. This is the major factor. There are very few other
17 factors. 1f 1 know partisanship alone, and that is the only
18 thing I know, I can predict with very ‘good accuracy how
15 voters will vote.
20 G. In non-partisan elections?
el A. Not in non—-partisen elections, just partisan elections.
ec Ac a "matter of fact, it is just the opposite. I have a very
e3 hard time predicting how voters will vote in non-partisan
24 elections, except in certain circumstances. In the City of
23 Dallas, for example, Annette Strouse was related to Robert
a Ty NL 7 A RA ST AT Bey
Strouse, the former chairman of the Democratic Party. She
was running agsinet Fred Mayor, who was —-— Minor, I'm sorry,
who was chairman of the Republican Party in Dallas.
runoff election, that selection turned into a quasi-partisan
election because as we analyzed elections we found out
Republican voters would tend to support Minor and Democratic
voters tended to support Strouse. That wasn't completely
true, because there were some people 1n Dallss that did not
know that Annette Strouse was related to Bob Strouse, nor did
they know that Fred Minor was former chairman of the
Republican Party. But there were a lot of people who
and that is the way they voted in the election,
Q. Is there anything else? You said there were six
seven factors. You mentioned party identification.
A. Right. The second factor, 1 think in the
characteristics of partisan ballots, is that they are
extremely long. In Texas especially, we have what we call a
long, 2 long ballot. That is mainly because of the Judicial
races. Without the Judicial races, the ballot would be
relatively short in a lot of counties. The thing
ballot is that there is high visibllity given to
at the top of the ticket and relatively low visibility given
to the people at the bottom of the ticket. And ,
unfortunately, the election is held on the same day and
everybody is vying for attention and publicity and name ID.
YTaesbell — Direct Hicks 5-183
“ 1 People at the bottom of the ticket basically get blocked out
z by the people at the top of the ticket In terms of visibility
3 and name ID.
4 Q. How do you know that?
= A. Because voters don't vote, there is a big fall-off as
< you go down the ticket. As a matter of fact, 1n some cases
7 it falls offias much as 25 percent. So people at the bottom
8 of the ticket Just aren't known. And I think as has already
been suggested, or alluded to by Judge Phillips, 1s that at
10 the bottom of the ticket, people just vote straight party,
i3 one way or the other, because they really don't know who
12 these candidates are.
i3 Q. Do you have any information about how many people do
14 that, what you just described, vote straight party”?
i A. Sure. In all of the election studies, all re elect IGA
16 data we have, most of it I should say, indicates a straight
17 party voting. In some counties it is extremely high. I
18 think in Harris County, it runs into the BS, 90 percent
1S range. In Dallas County, it runs very high, well above 50
20 percent. In almost all the counties, it runs well above 950,
21 SO percent or more, 1 would say, probably, in sll counties,
od Certainly in some counties it is even more, greater than
23 that. And it certainly makes a little bit of sense because
24 in Harris County, for example, where you have, Just as an
23 example, 34 Judicial races on the ballot, it 15 extremely
Taehel: = Direct = Hicks 85-18%
k 1 efficient for a voter to vote straight party rather than
e going down the ballot and marking all the boxes. So that
3 voters 1n a sense, are benefitted by the straight party
4 voiing. As a benefit myself, you know, one of the things we
S do in politics is encourage our voters to vote a straight
6 party. There 1s nothing new about that.
a. Tell me if there 1s anything else, any other factor that
8 affects partisan elections.
<Q A. Well, one of the characteristics about partisan
10 elections in contrast to non-partisan elections 1s, we have
ii an extremely high voter turnout. In many communities, for
12 example, voter turnout in partisan elections 1s 10 times
13 greater than for City elections, or school district
14 elections.
I'S RQ. Do you mean extremely high voter turnout or
16 comparatively high?
17 A. Comparatively high. It is not extremely high, I think
18 in most State elections, partisan elections, 1t might reach
19 020 percent. But in city elections, school board elections,
20 it is not wuncommon turnout vote will be, reach, at the most,
2} 10 percent. In Arlington, for example, a number of school
ec board races generated a two percent voter turnout. So,
23 turnout in municipal elections and local elections 1s
24 relatively slow, modest, on a comparison basis, compared to
25 partisan elections.
TR over hn ET TE IN A Sn LOE By
i ct 4 Taebel
aboutipartiisan elections
that you elections =
a
Q.
that differentiate them n
purposes of your analysis
I have already
important for
thing, and
tvilines,
Are there any other factors
from non-partis
people
ro
think would be
te Tina)
way .
I think
is that people vote along par
vote that
11 see
Well,
We wi
in, at the
mentioned this,
to ‘their
A.
as Democrats or Republicans and will
is not necessarily true at the top Of ticket.
we are
identify
depending on what county
7 I't
8 some major shifts,
top of the page. But is amazing how they return
to the middle of the
very consistent patterns
partisan preference as we get down
the middle of the ticket and
of
it
how we can see very,
in
11 ticket,
voting behavior from voters
at the bottom of the ticket.
P 0. ~Okav., You have talked a lot, and that was not exactly
unexpected given what has gone on in the case thus far, about
partisan elections and then about racial preferences
in a theoretical manner. Do it
race”?
a couple of different ways we can
16
Already you have talked about
you have any way of telling what best describes the
1% elections, either partisanship or
I think there 1s
to determine whether partisanship best
A. Yes.
think there
20
look at elections
describes the situation or whether race describes the
I 1s two situation better than anything else.
that we can use to determine whether
of what 1s going
illustrations
is a very good descriptor
24
partisanship 25
Padi reso rsa
c0
24
£5
The first thing that you can look at, when you know, for
example, in one election how each of the three groups voted,
you can predict how they will vote in other similar
elections, regardless of the race of the candidate. In other
words, if 1 know that voters vote a certain way for one
district court race, lI can predict with relative, a
relatively good fit how they will vote in a similar kind of
election on the same ballot. I am talking at least on the
same ballot. So, as we look at elections, from election to
election, we can look to see if the vote differences between
the Democratic candidates and Republican candidates 1s very
similar or very disparate. 1f it is very similar, we can
fairly well say that we are seeing a high degree of partisan
polarized voting going on. The other, there 1s another way
you can do it, and there is not too many instances In the
analysis that 1.did, but there ore some situations, for
example, where, in a Primary election, the White voter 1n the
Democratic Primary will support a minority candidate, and you
will see something like this, where the White voter in the
Democratic Primary might support a minority candidate with 60
percent of their vote. That minority candidate, who 1s going
to run as a Democrat, will then go on the ballot and face a
Republican challenger. What you frequently see later on,
then, is the White vote will be split more, because
Republican White voters will be merged with Democratic White
1 voters and the percent vote for the minority candidate will
c be diluted by the Republican voters. Mainly because they are
3 voting for the Republican candidate. So, you will see ’a
4 shift in polarization from, let's say, where the Whites 1n
5 the Primary will vote 60 percent for the minority candidate
6 and then in the General Election, because Republicans are
7 participating also, that percent will drop to 30 percent, 40
8 percent, depending on what county we are talking about.
? QR. Is it kind of like White Republican voters dilute White
10 Democratic voters in some sense”?
il A. Sure.
12 Q. You used the term ‘partisanship’ as 8 descriptor. Does
3 that mean partisanship, and what you are talking about here
14 is being used to explain why people are Republicans, why
ge people are Democrats, things like that?
16 A. No. If you want to explain why people are Democrats or
17 Republicans, we would look at other factors, like SES,
18 education, income and So on and so forth. What basically 1
1% am trying to do is describe how the political process works
20 in the community. It is as simple as that.
cl Q. Now, 1 would like to ask you rext, giver this
ge background, and we are getting close to getting to the
£3 counties, tell me how you would apply what might be called
ch the results test to get at whether this White bloc voted
25 sufficient, consistently enough to usually defeat the
Te BIR BT TE I FT TE A TR A MSR SE RT
20
24
23
Taebel — Direct — Hicks 5-188
preferred candidate of minority voters, given your discussion
of partisanship and its relation to racial voting, racial
polarized.
A. You mean how does 'Gingles' apply 1n a partisan election
or non-partisan election, something like that”
Q. In a partisan election.
A. It seems to me that, since l participate in almost all
of these Court bases in non-partisan elections, 1t seems to
me 'Gingles' has application and 1t works very well, or can
work very well in analyses of Primary elections. In that
sense, we don't have any label to distort the voters' way of
voting, nothing intervenes between the voter and the
candidate, so to speak. And, therefore, I think that
*Bingles’ is appropriate. I think it works. I think that, 3
think that —-
Q. Let me ask you —-
A. Okay.
Q. Are you saying that you can do the same kind of analysis
that Dr. Engstrom did in Primaries?
A. Yes, sure.
Q. Do you do the same thing 1n General elections?
A. Well, you can do the same thing in General elections. I
think, however, that you might want to look at how the, how
the voters of the same party of the candidate treat those
voters. That would be an appropriate way to look at a
TE TY PRET TN SLES WET FN RN AIR TGA NEI I IS 2G AT DE ai.
[ER Sn ER 2 3p Na Nop A Se AEE LIOR = EP 2g A Seg Tee IS YS
n
Tachel - Direct —aHiICLS 5-18
results test too. In other words, did the Democratic White
voters, for example, support the minority Democratic
candidate to the same extent that they supported other White
candidates, and if that support was less, did it result in
the defeat of a minority candidate. In a sense, what [I am
saying is, the minority cendidate who run on a partisan basis
should receive the same support as any White candidate or any
other candidate might. That would be a results test, too.
QR. So, what did you do here?
A. Basically what I did, 1 looked at a variety of different
elections in each county to see what kind of patterns best
describe what was going on in that county.
Q. let's urn first to a county. Yurn to D-6. That would
be Dallas County. Can you tell us how many elections you
analyzed there, and tell us how that compares to the work Dr.
Engstrom did.
A. Well, we analyzed --
Q. I don't mean results, I mean, just basically.
A. Right. We analyzed, 1 think, 23 different elections
there, and 1 think Dr. Engstrom did seven, So, we did, raw
numbers, we did three times as many. We did some of the same
elections he did, as a matter of fact. But the end results,
by the way, are fairly similar to his results. Sol think
the two sets of analyses come fairly close to each other.
Q. By results, do you mean --
ey Taebel =~ Direct — HICkSs Ea Eg
ai 1 A. Statistical results come fairly close to each other.
Z G. What kind of elections did you analyze”
3 A. As I sai1d before, we analyzed both Primary and General
4 elections.
S Q. What kind of offices?
b A. In Dallas we analyzed 13 General elections and eight
7 Primary elections.
8 Q. And did vou look just .a Judicial District Court races”?
Qo A. No . We looked at some other races. We looked at, as 1
10 mentioned earlier, we looked at some state-wide races. In
il this case, 1 think we looked at the Jim Mattox race versus
i2 Barera, we looked at the Gonzales race. And we tried to look
13 at those races across all of the counties, 8s a matter of
14 fact.
15 GQ. What Gonzales race?
16 A. Raul Ganzales to the Supreme Court in '86 and '88. 1
17 think we also looked at the Primary, as a matter of fact, in
18 this particular one here. The index, of course, i1ndicates
1S all the particular races that we looked at in each of the
20 counties, although the names aren't indicated on there.
21 0. From doing your analysis, what did you learn about party
22 voting?
£3 A. Well —-
24 Q. 1f anything.
25 A. Well, what we see 1n Dallas County 1s very strong and
TTT BA LI TRO SR AT
24
ES
Haehel i= Direct —iHicks i
solid support for the Republican candidates. This 1s true
throughout all of the elections that we looked at. And there
is a very consistent support from election to election. For
example, if you take a look at the election results on page
1, which puts Winn against another candidate, you will see
that Ms. Winn got 36 percent of the White vote. By the way,
this comes fairly close to what the Texas Almanac shows as
the Republican voters 1n Dallas County. So, I feel somewhat
comfortable with the results. If you compare that, though,
flip over tO page Sii—-
G. I don't think 1 understood.
THE COURT: Well, 1n that race, what he said, he
doesn't think the Republicans 1n this race No. 1 are
particularly happy with that result. That 1s what I glean
from this. But he got 64 percent of the vote.
A. The candidate for the Republican Party got 64 percent of
the vote, right. And if you take a look at page 5 and
compare that with the votes that the Republican candidates
got there, you will see that 1t 1s almost a mirror 1mage. 1%
1s 635 percent. So, in two elections contests, one 1n which,
by the way, a Black Democrat is on the ticket and another in
which a White Democrat is on the ticket, the vote cast by the
voters was almost precisely the same for the, among
Democratic White voters and Republican White voters. You can
see this same kind of pattern, by the way, even later on, 1
A TT 7 I NRTA A TT A TRAN Fr
24
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1}
a
hy pe
i Do
»
MT >
i TI Ja in
wn
0
I
you want to go way back there, and we can finish this
quickly, go back to page 75. Let's see, wrong page. Seventy
three. And you can see almost exactly the same results here.
GQ. What 1s page 737
A. I"m sorry. In the sense — ']I 'm sorry, page 77 is what *]
had 1n mind. Canales, the Republican candidate, Judge
Canales, received 65 percent of the White vote as a
Republican candidate. But 1t doesn't make any difference
whether you are White. We have 1n this particular series of
contests, a White Democrat, or two White Democrats, a
Republican, an Hispanic candidate and a Black Democratic
candidate, and the percent vote cast by the Republicans, or
by the Whites for the Republican candidates and the percent
vote cast by Whites for the Democratic candidate is Just
about the same. And you will see this entire pattern
throughout the Dallas County Elections. Dallas County, 1
think more than any other county that we looked at,
illustrates how voters stick very close to their party
identification. We see very little deviation 1n how they
vote for their party candidates, irrespective of whether the
candidates are Black or Hispanic or what, Samant veslly make
a difference. 1 think that is really the point of these
charts here. By the way, Dr. Engstrom did ‘an analysis also,
and his data confirmed basically the same kind of finding.
When there is a Democrat running who is a minority, you get
Yezebel + Direct —- Hicks
. 1 just the mirror image results of when a White runs as a
2 Democrat. So, 1t doesn't make any difference. I- will go
3 over that, if. vou want. By the way, the Texas Almanac shows
44 that 3% percent of the voters in Dallas County 1n 1986 voted
5 in the Democratic Primary and 65 percent voted in the
6 Republican Primary. And 1f you take, 1f you take and compare
7 those figures with the figures we Just looked at, you will
8 see they are almost exactly the same. So, participation in
g the Primary Election in this particular case 1s almost an
10 exact predictor of how voters in Dallas County will vote for
11 Democratic or Republican candidates.
12 Q. Well, do you glean from this anything about -- I think
13 the obvious answer 1s yes.
14 A. Yes.
15 Q. About partisanship as opposed to racial polarization”?
16 A. These elections clearly illustrate partisanship 1s the
17 best way to describe what is going on in Dallas County.
18 There is no question about 1t. In every particular race you
19 can see, it doesn't make any difference what the race of the
20’ candidate ree doesn't make any difference what age the
21 candidate 1s, the voters will vote along party lines very
ee consistently.
23 Q. Which voters vote in the Democratic Primary in Dallas
24 County?
£5 A. Black and Hispanic voters participate extensively 1n the
ECT 2% gt SERA SP CE I Sh PETTITT €
24
£3
Taeebel —- Direct — Hicks 85-19%
Democratic Primary. But White voters participate
extensively, too. As 1 said, about 33 percent.
Q. And who votes for Democratic candidates in Dallas
County?
A. Whites, Blacks and Hispanics do.
GC. I suppose, then, Whites also vote for Republican
candidates too?
A. Sure. Almost exclusively, as a matter of fact.
3. Who wins in Dallas County?
A. The Republicans win in Dallas County.
Q. And I think you have already testified about what best
describes it, but the question I guess I want to ask you,
after Looking at this, do you have any opinions about why
Blacks as a whole, including both Democrat, basic Bedrock
Democrat Whites and Bedrock Republican Whites, if you want to
call them that, whether all the Whites that voted 1n Dallas
County vote consistently as a bloc so as usually to defeat
the preferred candidate of the minorities?
A. There are two blocs of White voters. As 1 said, one is
the Democrat White bloc voters and one 1s the Republican bloc
White voters. Both of those two blocs vote consistently for
the nominees of their party. It just so happens in Dallas
County there is more Republican voters than Democratic voters
and the Republicans win all the time, or almost all the time,
Q. Okay. Why don't we move on to another county.
20
24
eS
Taeboel = Direct — Hicks 59-1295
MR. HICKS: Your Honor, we agreed with Mr. Garrett
ahead of time that things might move quicker with this
witness if we just go ahead and go through all the counties
instead of going back and forth. He doesn't have as many
elements of the case to testify about as Dr. Brischetto did.
THE COURT: All right.
BY MR, ‘HILKS:
Q. fet's turn to Tarrant County next, which is in D-3°9,
which 1s 1n a different book. All the way over to the other
end.
A. Okay.
Q. How many elections did you analyze here, would you
compare that, please, with how many Dr. Brischetto analyzed?
A. We analyzed 17 elections, five Primaries, and not
counting the elections that I did for him, I think he did
three. He did four of mine, used four of mine amd three of
his own. That's all right. Tarrant County, by the way, is
what 1 call a transitional county in terms of party politics.
At the early part of 1980's, it was primarily Democratic, or
slightly Democratic, but in 1986, there was a major shift 1n
Tarrant County, "and in the Primary Election in 1986, 87
percent of the voters voted in the Republican Primary and
only 43 percent voted in a Democratic Primary. Basically,
all of the Judicial candidates that were running 1n the
county in 1986 lost, all the Democratic Judicial candidates
acbel = Dirprt.= Hicks 5-196
4 1 that run in 1986 and 1588 lost. So, what I am saying
£ basically is, Tarrant County is in a transitional stage, but
3 the judges who transferred, switched parties two months ago,
4 tell us it might be more than a transition, it might be more
5 permanent.
6 Ge. You mean actions, their actione 1ndicate?
To A. I think the judges have a good, good view of reality. 1
8 live in Tarrant County, see.
@ Q. I don't know if you said what kind of races you
10 analyzed.
11 A. We analyzed 17 elections and five Primaries.
12 Q. Seventeen General elections?
s
13 A. No. A total of 17 elections, 1Z2.:General elections and
14 five Primaries.
15 BG. Did you just do district judge races?
16" A. No. We did, again, a variety of different races. Here
17 you can see on the index that most of them were criminal
18 court om district court races. I think indeed, except for
19 the AG's race in 1986, the Attorney General's race in 1986,
20 they were all Judicial races.
21 =. Can vou tell me the results of your analysis of the
Eo Tarrant County races?
23 A. Right. In the 12 General elections we looked at, the
24 minority preferred candidates run six times and lost six
2S times. In the five Primaries, the minority preferred
‘ -
BLgots 3 Sr an SI a FE RES TNR.
24
25
facDel + Direct = Hicks 1577
candidate won three times and lost once. One: was: what 1
would call a split decision. By the way, I should say that
since 1980, if vou analyze these charts, you will see that
the White Democratic vote has changed from about 48 to 49
percent in 1982 to about 3B percent in 1988, In other words,
there has been a 10 percent downward shift in the White
Democratic voters in Tarrant County since 1982.
Q. Where can we find the indications of that in this
exhibit?
A. Well, 1 will give you some. right here. Take a look at -
- that 1s the wrong page. Take a look at page 9 where Judge
Perez is running for County Court No. 4. He gets 48 percent
of the vote.
Q. That is in the General] Election?
A. Yes, that is the General Election. And 1f you look
under White voter, it shows that he had 48 percent.
3. That is in 19827
A. Right, in 1982. If we move forward to 1988, let me find
an example here. Well, take a look at the Attorney Gereral,
he is one of our favorite subjects in this analysis. He only
GOL om
G. It 1s nice to hear somebody say that.
THE CORY: What page 1s that?
A. Page 435, sir. Here you can see that the Republican
candidate got 61 percent of the vote, which means Mr. Mattox
Taebel —Dirvrect - Hicks “9-198
1 got only 39 percent of the vote.
e BY MR. HI{KS:
3 Q. The Republican candidate is what ethnicity”
4 A. That is Roy Barera, the Republican nominee for Attorney
5 General. Sc, you can see 1n Tarrant County that the White
6 Democratic vote has declined by almost 10 points 1h a matter
7 of a little over a year. 1 think that is a fairly dramatic
8 change. And since I live in Tarrant County, I even see the
Q results 1n who wins elections in Tarrant County.
10 Q. Who does”?
1.1 A. The Republicans now are starting to win elections. ARs a
ic matter of fact, 1 think in 1986, for the first time in a long
13 time, the County Chair was a Republican. l1'm sorry, the
14 County Judge ae a Republican.
15 RQ. Why do they win -- not why, but what describes why, the
16. basis for their victory?
17 A. Party preference of the voters. Republican voters are
18 now, now outnumber the Democratic voters. And that has
19 changed who's winning the offices in Tarrant County. As a
20 matter of fact, as 1 mentioned, in 1988, all of the Judiciel
2} candidates were defeated by Republican candidates. And 1f
ee you take a look at all of those Judicial races, including
£3 Clifford Davis, who is a Black, you will see that the
r= percentage vote that they received from all of the voters was
es within one percentage point of each other. In other words,
B® UCL ga £m fo Vt Re Sin ORS See pt SR SOM ey SSEER AT eR
AS EIEN EE AR CER SEU { : X [&
Yaebel — Direct — Hicks S- 199
1 they lost like 48 percent to 55 percent, 46 to 34 percent,
2 They were all within that particular range. There was very
3 little deviation between the votes that the Democratic
4 candidates in the Judicials received, regardless of race,
9 regardless of any other factors, how long they were 1in
bé office, whether they were incumbents, 1t did not make any
i; difference what characteristics. And campaigning, none of
8 those factors had anything to do with the outcome of the
2 election or the differences that we saw 1n the elections.
10 Q. Are you saying they had nothing to do with 1t or
11 whatever they had to do with it doesn't ‘describe it as well?
i2 A. Well, 1 will put it this way. They had very little to
13 do with changing the outcome of the election or changing the
14 vote that cath of the several Democratic candidates received.
15 RQ. How do you know that?
16 A. Well, I can give you some examples here, but I Reve
17 already told you that if you take a look at the total vote
18 that they received, the total vote that each of them received
i< was within one percentage point of each other. But I can
20 give you some examples here. If you take a look at page 43.
21 G. That is the Mattox—-Barera?
ec A. Yes. We looked at that. Well, here, take a look at
es page 57-61, that is even more interesting. In this
24 particular race, by the way, we have got two Davis’ running.
£3 One is, one is Black and Democrat, and one . 1s White and
RR HATTIE SEER 8 AT SS J Fae 7
Republican. Clifford Davie, who 1 think Judge
testified about day before yesterday, was very
the community. In fact, 1 testified in his Court
Court one time. He got 40 percent of the White votes.
Fred Davis, or Mr. VMocal, Judge Vocal at that
incumbent, got 39 percent of the vote. In other words, what
you see, the name, both are named Davis, one
lost, and the vote differences are just exact mirrors of each
other. Why? One was a Republican and one was Democrat.
Q. Why doesn't it show just as well that Whites voted as a
bloc so as to defeat the preferred candidate of the minority
voters?
A. Because they aren't voting as a bloc. What you see
basically here is, you see 39 percent of the White voters are
going for Democratic candidates. Whites aren't voting as a
bloc. If they are voting as a bloc, there is two-bloc
voting. One happens to be a White Democratic bloc and one
happens to be a White Republican bloc. And those blocs are
very consistent in how they vote. And as you can see here,
there is only one percent shift in how the White Democratic
voters vote in a particular election and a one percent shift
in how Republican White voters voted in this election.
CG. "Alliright. Let's turn to another county. Let's turnito
Jefferson County, which is Exhibit D~-9 in the exhibit book
right there, and it will be in the second book that we have
REAR RETR FCT STI Te vy
24
25
EB ah ea te EA Es
Taebel ~ Direct - Hicks 5-201
there.
A. Jefferson County ——
Q. Hold on a second.
A. Jefferson County is the -—-
QR. Exhibit D2.
A. Jefferson County is the most Democratic county of ali
nine counties that we analyzed.
Q. How do you know?
A. Because 90 percent of the voters voted in the Democratic
Primary, and if you take a look at the results in General
elections, they overwhelmingly support Democratic candidates.
QR. So, is this a situation where you need to look at
racially polarized voting and White bloc voting in the
Primary to see if the Whites vote consistently as a bloc so
as to defeat the preferred candidate of the minority voters?
A. Yes. In this particular county, the candidate who wins
the Democratic Primary wins the General Election. And thus,
the Primary Election 1s the critical focal point rather than
the General Election.
Q. What did you learn about the Democratic Primaryiin
Jefferson County, from your review?
A. Well, first —-—- we learned two things, by the way. There
is a high degree of polarization, extensively high, and 1 am
using racial polarization here now because I am talking about
Primary elections. I want to make sure that you understand.
24
25
Tachel = Direct — HiCkS S==07
I am talking about racial polarized voting here because we
are talking about Primary elections.
Q. Let me interrupt you Just a second and ask you, I think
you said, what racially polarized voting 1s. When 1s 1t
there, what 1g 1t7?
A. Well, most people just define 1t as one group of voters
voting one way and another group of voters will vote the
opposite way.
Q. Meaning Whites and Blacks?
A. Whites and Blacks or Hispanics and Whites, 1t doesn't
make any difference which group you are talking about. But
basically there 1s two groups of voters that vote 1n opposite
directions, 1s basically what 1% means.
QR. Is that a common phenomenon or not?
A. It 1s a very common phenomenon. Quite frankly, I have
probably never seen an election in which there wasn't some
degree of polarized voting. It is a very common phenomenon,
and 1 think it exists in every community in the United
States. Nothing new about it. The only question 1s whether
1t approaches various kinds of levels, whether 1t constitutes
bloc voting, which 1s another term we use.
Q. Okay. Let's go back to the Primary, you were going to
tell us what you learned in your analysis.
A. As I recall, we looked at eight elections here. Yes, we
did look at eight elections, and we find out that in the 'BO
Gags CE Chu totete La ca ST Ll ah ool TO EA a Ep TT YET
Aa aliA) aX of
24
23
wn
| ro o Taehel — Divech —HICks
elections, the Black preferred candidate wins three out of
four Primaries and in the General elections, the Black
preferred candidate wins three out of four General elections.
You can see the degree of polarization, if you look t page
This Mr. A. LL. Price, and by the way he is a S5tate
Representative in about half of Jefferson County and he
operates basically out of a predominately White area, as a
matter of fact. His is about 30 percent White, according to
the Professor, Tom Sanders of Lamar University.
Q. Thirty percent White doesn't sound like a lot 1n a White
area.
A. It must be more than that. He says predominately White,
1 have the papers he sent in, S0 obviously it is more than
that.
Q. You mean majority White?
A. Yes.
Q. Okay.
A. But if you look at the voting results here, it mentions
earlier that in Jefferson County, you basically have Blacks
and Nagin, We have not done any analysis of Hispanic votes.
But you can see that Blacks vote overwhelmingly for Price,
Mr. A. L. Price, Representative Price. Ninety-eight percent
is our estimate, and you see the White voters give him zero.
As a matter of fact, that is what the data show here. I want
you to understand that when we discussed regression analysis
Raehel — Direct — Hicks SD,
earlier, I said that regression analysis will always
underestimate the vote that White voters give to Minority
candidates. So 1t 1s something over zero. What 1t as, 1 am
not exactly sure. Even 1f it. is over 20 percent, ever 1f 11
approaches 20 percent, you can see there 1s a high degree of
racial polarized voting in this particular election. None
the less, Al Price won, 51.2 percent to 48.8 percent. It vou
go on to the next one, by the way, which 18 two years later,
he is running against another White candidate, on page 4, he
gets 69 percent. He is doing a lot better, by the way.
Q. Sixty-nine percent of what?
A. Of the vote.
@. How does he do with the White?
A. Actually, he increased his percentage amount of White
voters considerably. He goes from zero percent to 26
percent. That is probably pretty close to 30 percent, so he
is doing fairly well among White voters here, given the fact
he is getting 100 percent of the Black votes.
Q. Well, given those races, did you analyze any other races
that helped you in this analysis, that helped you form a
conclusion about whether Whites vote in the Democratic
Primary in Jefferson County?
A. Right.
R. Consistently enough so as usually to defeat the
candidate of the Black voters?
mn
24
es
n O Taebe)l = Direct — Hicks 5-
A. If you take a lock at election results on page 10 and
compare those with election results on page 16, you will see
that irrespective of who the candidates are, Democratic Party
voters or White voters will consistently support the
Democratic candidate. On page 10, for example, White voters
give 54 percent of their vote to Oscar Mauze and on page 16,
White Voters give 52 percent of their vote to Raul Gonzales.
Q. Did each of them win or lose”
A. Each of them, in fact, each of them carried Jefferson
County handily. Mauze got 73 percent of the vote and
Gonzales got only 71 percent of the vote. Notice also the
similarity between the total votes they got. So, in this
particular, these two particular races, both the Judicial
offices, by the way, involving different type of candidates,
partisanship prevails over any other factor that you can look
at.
Q. What about, 1 would like to turn back to the Primary in
Jefferson County.
A. Democratic Primary, okay.
Q. Have you formed any opinions as a result of your
analysis about whether Whites 1n the Democratic Primary in
Jefferson County vote consistently as a bloc so as to usually
defeat the preferred candidate of the Black voters who voted
in the Democratic Primary?
A. Well, they vote consistently as a bloc, but they can't,
24
25
Yaepbel — Dipect — Hicks S5—-20¢
they have a very difficult time defeating Black candidates,
because Blacks vote so extensively for their candidate, 1t
requires, well, as you can see, you almost have perfect
polarization in the first race that 1 talked about ang the
Black candidate still won. You Can't get, at least
statistically, you can't get any more polarized than that,
but the Black candidate still won.
Q. Why didn't you run analyses county-wide, of the county-
wide race involving a Black candidate running against a White
candidate?
A. 1 didn't have any, as i] recall.
Q. In the absence of that, is it pretty hard to form an
ultimate conclusion on the White bloc voting question?
Qo. Well, I always prefer the county-wide elections.
Anytime you have a sub-county election, you are not sure
exactly what would happen in the other part of the county.
But, in this case, we are talking about a part of the county
in which Whites are the predominant group. l.think this
gives us a pretty good test on whether minority candidates
can carry the county.
Q. And I am not sure we got it in the record, 1am not sure
I asked the question about in the General Election, 1n your
analysis here, in Jefferson County, do you attribute anything
to racially, any outcome to racially polarized voting, or is
it once again a partisanship?
laesbel ~~ Direct = HICkES S-207
1 A. Well, in the Primary Election, there is racially
z polarized voting. But racially polarized voting does not
3 work to defeat the preferred candidate of the majorities.
4 G. Right. I want to know about the General elections.
Ss A. In the General Election, we revert to a partisan
6 orientation, partisan mode. Once the Primary Election is
7 over, the Democratic voters get behind the Democratic
8 candidates, irrespective of race, or irrespective of any
other facet, I should say, too.
10 RQ. "All right. Let's turn to Travis County Exhibit D-B.
11 A. Well, Travis County, you heard a lot about that this
ic morning, is probably the most liberal community in Texas,
13 probably the most, second most Democratic district 1n Texas.
ij In 1976, for example, 73 percent of the voters voted 1n the
15 Democratic Primary and 27 percent in the Republican Primary.
16 Q. Let me interrupt. I think you said Jefferson County 1s
17 the most Democratic?
18 A. It is.
1% Q. Travis County is the most Democratic county?
20 A. No. l1 eaid, I'm sorry.
21 THE COURT: He said Travis was the most liberal.
ge Jefferson was the most Democratic.
23 A. Right. There is a big difference. Travis County 1s, 1
24 think, the second most Democratic county in the State. 1
£3 think most would agree, however, that 1t 1s the most liberal
I NN SR TE TE EY ES
Taehel ~~ Direct — Hicks 5-208
1 county 1n the State. And in Travis County, we analyzed
e again, 158 elections, including nine Primary slecti ons.
3 Because, again, typically the winner of the Primary Election
2 inn the Democratic Party in Travis County 15 elected to
8 office. As a matter of fact, 1t seems to me, as 1 recall,
6 all of the district judges are Democrats 1n Travis County.
i In the nine Primary elections that we did analyze 1n the
8 Democratic Primary with Hispanic candidates, Hispanic
Q candidates won three times, he or she made the runoff twice
10 and lost four times. One of the four times the Hispanic
31 candidate lost to a8 Black candidate who had White support.
12 To go on to the second year, in six General elections, ;
13 Hispanic candidates, or the preferred Hispanic candidate won
14 all six elections. So, the Primary elections are the
15 critical feature for any particular candidate trying to get
16 elected in Travis County, and it is the Democratic Primary
¥7 that we are talking about.
18 Q. Let me ask you to look at pages 41 and 44(a).
19 A. Okay.
20 Q. What, do you recall whether Dr. Brischefto analyzed this
21 race?
ec A. Yes, he did.
23 Q. How did he analyze 1t7
24 A. Well, he analyzed, 1t at least statistically, the same
eS as | did. As you can see on page 41a). I think the results
RE TY ATT
20
Sebel — Direct = Hicks 5-209
are fairly close in his analysis. But .-he ——- Jim sorry, Go
ahead.
Q. 41 says percentile vote received by Castro. Are you
saying that is the way he analyzed 1t the same”
A. Right. Right.
. All right. Castro was the dependent variable in hig
analysis, as well as 1t 1s here on page 41. The
interpretation that he gave, however, 15 White voters voted
against the Hispanic candidate. And 1 guess that 15 one way
to interpret the results, but in actuality, the White voters
gave 54 percent of their vote toc the Black candidate,
Kennedy.
Q. How do you know that?
A. Well, I did an analysis of that on the next page. 1
guess, I don't have —--
0. 44(a) 1s the one in the exhibit?
A. Right. I am looking at that here. In this particular
case, instead of analyzing the vote of Castro, we analyzed
the vote of Kennedy, the Black candidate. And as you can see
on the bottom of the page, 52 percent of the White voters
support Kennedy, 84 percent of the Black voters and
percent of the Hispanic voters. The White voters and the
Black voters preferred candidate won, both of their preferred
candidates won in this particular race. In a sense, anytime
you have a Black or Hispanic candidate running, 1 suspect
n
24
5
Teehbel =D}
that the Anglos
one or the other, especially 1
other 1s going to win. And
voting against one Or
1f you have a two-person race,
wouldn't want me to go 1nto th
Q. I am a little confused.
A. ] will stop then.
Q. Let me what, ask you if,
reached from your analysis of
elections in Travis County.
A. Well, as I say, Hispanic
have lost some. l don't know
based on the elections that I
Q. Did you form any opinion
consistently as a bloc?
A. No .
had the opportunity,
two of the previous court
with Judge Roberts, and 1
Judge Nowlin.
Q. Involving some
A. Right. By the way,
elections, and basically,
issuance of a Section 2 finding.
are going to get,
that makes,
the other
Whites don't vote consistently as a bloc.
of course,
cases,
think
those were City,
in both cases,
rect — ‘Hickg
have a hard time,
f there 1s only two,
then,
ny
because
of the minority candidates,
I am saying. I guess you
at.
tell me what conclusion you
the Democratic Primary
candidates win some and they
if there is a usual pattern
have analyzed here.
about whether Whites vote
to be the expert witness
a 1976 case,
the later case, 1986,
aspects of Travis County?
City Council
there was no
In the '76 case, by the
thereabouts,
wlth
1 also
Arn
fe
t
one or the
the White voter
mn
(J
20
=
gin
Tachel — Direct — Hicks
way, Your Honor, Judge Roberts, I think that was prior to the
Voting Rights Act, but the same type analysis was done 1n
V76. I think in both of those kinds of analyses, and what 1
see and what 1 hear, since 1 lived in Travis County for some
time, Travis County 1s even more of an i1declogical town than
any place else. It really doesn't make any difference what
you are, either liberal or conservative, and that 1s the way
voters seem to operate in Travis County.
Q. Let me ask you, did you look, did you run an analysis of
the State Senatorial races in the '84 Democratic Primary?
A. Yes.
Q. What does that show you? And take page 33 and page 37
as it now is in the exhibit. I don't think you have it
numbered that way. |
A. Well, here on page, I don't have a number on mine, but
here on page whatever, the 1984 State Senator Democratic
Primary, there is four candidates in that race, by the way,
Barrientos and three White candidates. White voters give
Barientos 36 percent of their vote.
Q. What does that indicate?
A. That indicates overwhelming support. Why de I say that”
Because with four candidates running, we would expect, under
normal circumstances for each candidate to get approximately
2S percent of the vote, all things being equal, you would
expect each candidate to get 25 percent of the vote. If
wn
24
ign
NST SPEIRS
Taebel —~ Direct — Hicks S-21F
something is going on, you won't get that 25 percent of the
vote. As it turns out, Barientocs does better than what would
be expected, he gets 36, or 11 percent more than what 1 would
expect aes a8 random voting attern. Pp afin
Q. Did vou analyze the runoff?
A. Yes. That is just on the following page, four pages
later. 1 never did have the last page, so ] couldn't give
you the votes received or percent vote received. Buti in thie
particular case, Barientos got 47 percent of the vote, almost
half.
Q. Who won?
A. Barientos won, easily.
0. “He has won, 1 think, ever since. I think he ran again
in 1988 and won. 1 am not sure 1 ever got the words out
completely before you answered, so let me try and get 1t,
make sure it 1s in the record. Have you formed an opinion
about whether in Travis County White voters vote consistently
as a bloc so as usually to defeat the preferred candidate of
the Hispanic voters?
A. No, they do not vote consistently as a bloc to defeat
the preferred candidates of minority voters.
Q. let's go to Midland now, D-l2.
A. Well, Midland. In Midland, we took a look at six
different, eight different elections, and again, Midland 1s
what we characterize as a Republican territory. In fact,
Taebel — Divect — Hicks 5-2
this is the strongest Republican city in the State. In 1986,
B6 percent of the voters voted in the BOF Primary and only 16
percent 1n the Democratic Primary. Sc ,. basically, the
Republican Primary becomes the testing ground or the
filtering process for elections. But, as we all know, Blacks
and Hispanics do not participate extensively 1n the
Republican Party.
Q. What conclusions did you reach from your analysis in
Midland County?
A. Well, again, I think what we see in Midland County, 1f
you look at most of the results here, 1s that partisanship
prevaills. Republicans beat Democrats. l: think if you take a
look at page 1, it is kind of interesting here, by the way,
vou will see, in that particular case, and the only district
judge race that we analyzed, a Democrat won. Mr. Baskin.
Interestingly enough, Mr. Floyd got twice as many votes in
the Republican Primary. But what we are probably seeing here
is evidence of i1ncumbency. l] don't know Mr. Baskin, but }
suspect he has been around for some time, or Mr. Baskin. The
other races, you can see however a strong partisan. In some
of the West Texas cities, you sort of have a schizophrenic
voting pattern. By that I mean that, and 1 hope the
newspaper is not here from Midland, but by that I mean some
voters vote sort of like old, like old line conservative
Democrats at the local level and then they vote Republican at
Fachel "Direct = Hicks S-D1y
1 the National and State level. And you see evidence of that
& in some of these West Texas counties. Let '= see 1f there 1s °
3 any other thing here. If you take a look at page 17 and 25,
4 you really can get a glimpse of how powerful the Republicans,
5 and how solid the Republican vote 1s 1n Midlend County. On
& page 17, we have Mr. Mattox again facing Mr. Barera, and the
7 Republican White voters give Mr. Barera 7¢& percent of the
8 vote, overwhelming.
So Q. Who won the race?
10 A. Mr. Barrera, with 70 percent. That 1s astounding, that
11 1s very good. If you take a look at Raul Gonzales—-Bates race
12 on page 25, you will see that Mr. Bates got 76 percent,
13 exactly the same as Mr. Barrera. Notwithstanding the fact 2
14 that in one race an Hispanic was the Republican candidate and
18 in the other race, an Hispanic was the Democratic candidate.
16 In other words, Republican voters voted for their party
17 preference, the person who was their nominee irrespective of
is race, irrespective of age, irrespective of any other thing,
19 and the votes were virtually exactly the same. Irv fact, if
20 you take a look at the votes received, you will see that for
21 Gonzales it wes 7,166 and for Matiow it was 7,189.
ec Approximately a seven vote differential. That 1s an amazing
a3 coincidence, and that tells you precisely that Republican
24 voters are voting partisan, or White voters are voting
eS primarily partisan in Midland County in these two elections.
ro af in 1 a SAIN ea aa
24
25
Taebe?! ~~ Direct. — Hicks S=d 15
Q. Do you form any opinions from your analysis about
whether White voters vote consistently as a ploc in Midland
County so as usually to defeat the preferred candidate of the
minority voters?
A. Well, again, there is two blocs of White voters, the
Democratic White voters and the Republican. In Midland
County, by the way, that bloc of Republican voters 1s Quite a
bit larger than some of the other counties. Basically, that
bloc of voters, which is a majority, will vote Republican.
And if minorities vote democratic, their preferred candidate
will get beat, get beat by the Republican voters.
Q. 1s this consistent with the analysis or conciugions.you
arrived at in the other counties that are not exclusively one
party? Is it consistent with the analysis in the other
counties that you have done that we have already discussed
here?
A. Right. Yes. It is almost amazing that as you go from
county to county, and this is the first chance, by the way,
in these Court cases where I have ever had the opportunity to
analyze more than one political lorisgiction. Most of ithe
Court cases have been involved in one city or one school
district. In this Court case, we are looking at nine today,
we started off with. more than. that. And it 1s amazing how
consistently the voting patterns hold together from county to
county. It is incredible, as a matter of fact, how
tn
partisanship dominates the political process 1n those
counties that are, in these counties and how voters 1n each
party stick together.
Q. Okay. Let's Turn to Ector County, Exhibit D111.
A. Well, in Ector lounty we analyzed 10 electicns. Ector
County, too, is a Republican county, even though there 1s a
number of Democrats who still hold seats. I think three of
the four district judges are Democrats, but I think that 1s
accounted for by what 1 talked about before, bifurcation of
politics in some West Texas counties. Ector. .is not 's
Democratic -— I'm sorry, is not as Republican as Midland
County. Only S66 percent voted in the Republican Primary,
compared to 44 in the Democratic Party. There are three
races that we looked at with minorities, one was with Barrera
again, and he got 356 percent of the Republican vote. And 1f
vou take a look at page 17 --
QR. You mean 56 percent?
A. Of the White vote.
G. Who won?
A. Barera won. 1 don't want to dwell on this, but one of,
this ic the first, this is the only county where | have seer
por
Black voters not consistently voting for Democratic
candidates. I don't quite understand that, but 1t doesn't
seem to have any effect on the outcome of the election. i
you take a look at pages 2° and 37 with Raul Gonzales -- 1 ‘m
Mn
- Yaebel — Direct ~~ Hicks 5.
1 sorry, page 29, it is lulver and Hightower, two White
Candidates. mn
3S GQ. What 1s this?
4 A. This is a 1988 Supreme (ourt race. Page 29.
S QR. What did vou learn from that?
fo) A. Well, here I have two White candidates with the White
7 voters giving Culver 66, 66 percent of their vote. IT you go
8 back to pege 37, which is, again, for Supreme Lourt position,
Go this time Place 3.
10 G. This is a General Election?
13 “%A. This is a General Election. You will ses that Mr,
ie Gonzales, or a Republican candidate here, got 61 percent of
13 the vote, so there 1s a very close similarity 1n the two
14 contests as to the support each of the Republican candidates
iS got, and both of them won easily in Ector County. So, ‘again,
16 1 think what you see in Ector County is a strong partisan-
17 base for the General elections. Again, we don't have any
18 indication of Blacks or Hispanics participating 1n the
1% Republican Party process.
20 Q. Did you form an opinion about whether in Ector County 1n
21 General elections White voters consistently vate as a bloc sc
2c as usually to defeat the preferred candidate of the minority
ed voters?
24 A. Well, again, what we are seeing 1s that the White
25 Republicans constitute a, constitute a significant bloc, much
TEN CEDTTAW EO. PENN Ra re EIEVLT SIA SI = SEA I Fen IT gs
24
25
= in BI
Sc
more significant than Democrat White voters and the preferred
candidate of Hispanic voters, for example, Mr. Gonzales,
loses as a consequence of the White Republicans voting for
the Republican candidate.
Q. What does that say about, does that 1ndicate that Whites
vote consistently as a bloc so as usually to defeat the
preferred candidate of the minority voters?”
A. It says basically White Republicans win. That 1s what
1t really says to me.
Q. Let!s turn to Lubbock County, Exhibit D-10. How many
elections did you analyze there?
A. In Lubbock County, we ‘analyzed 17 elections, and 12 were
General elections, and five were Primary.elections.
Q. What conclusions did you reach as a result of your
analysis?
A. Basically what we are seeing in -- I'm sorry, I got the
wrong book here. Lubbock County?
Q. Yes. 1 gave the Exhibit No. as D-10.
A. 1 have a different book than you do. Lubbock County
also, of course, tends to vote Republican. Fifty-four
percent Republican, 45 percent Democratic. In 1886, for
example, 76 percent of the voters -- I'm sorry, let's start
over. Midland, Lubbock County 1s a Republican county, second
only to Midland. Seventy-six percent of the voters in 1986
voted in the GOP Primary and approximately 50 percent of the
laebel — Livect -I Hicks S5=31%
voters voted straight party. All of the, Senator Monford is
the one Democrat exception 1n Lubbock County. He
consistently has won. In fact, in the last election he
wasn't even opposed. To 1llustrate Lubbock County, you can
take a look at page 3 and 9, and page 3 you will see Friar, sa
White Republican, running against Davis. Sixty—-three percent
of the voters vote for the Republican White candidate, and on
page 9, you see that Republican Candidate Underwood gets
approximately exactly the same or approximately the same
amount of votes as Puryear. Thus, again, what I think you
see in Judicial races, you see a very extensive partisan
voting occurring.
Q. What happens when you look at pages 13, 17 and 257
A. Well, when you take a look at page 13, you will see
there was a slight shift downward by White voters, and you
will see slight shift upward by Hispanic voters. So that in
a sense, especially for Hispanic voters, 1t appears that
maybe the White voters, it appeared that part of that, their
voting decision nae affected by the candidates, not much, but
part. On page 17, you will see that Raul Gonzales, Gonzales’
opponent, Bates, got 64 percent of the White vote compared to
only 60 percent for Barera. And on page -- did you ask me
about page 217
Gs: 29%,
A. ES. You will see that Gonzales, again, got almost
Tacbel — Direct —- Hicks S—r cit
1 exactly the same percentage of votes 1n the 1988 election as
2, he got in. the 198& election. In other words, again,
3 partisanship holds up. Not only within election years, but
oy across election years.
5 GQ. What did you learn from looking at the Mattox-Barera
b6 race on page 13 of that exhibit?
7 A. Well, again, as ] said, there was a shift 1n the voting
8 pattern compared to other races, but it did not change the
3 outcome of the race.
10 Q. What was the outcome?
11 A. 1 will have to look that, up. Barrera won almost 53
iS percent of the vote.
13 RQ. What percentage of the White vote did Barera get?
14 A. Siaty Ercan
15 Q. Did you form any conclusions from your analysis in
16 Lubbock County with regard to whether Whites vote
$7 consistently as a bloc so as usually to defeat the preferred
18 candidate of the minority voters in the General Election?
iQ A. Well, again, what we see is partisan voting by a bloc of
20 White voters and by a bloc who are Republicans, they happen
21 to be in the majority, and a bloc of White Democrat voters
22 who are in the minority. The minority voters tend, again, as
£3 we have seen all the way across these analyses, to vote in
24 the Democrat Party. I think there is another interesting
£5 point, though. I am trying to move along. On pagel, 1¥ you
Taebel —~ Direct - Hicks 221
take a look, you have Mr, Davis running ageinst Mr. Lannon,
This illustrates the point 1 was making before. In this
particular case, you can see that Mr. Davie was supported by
all three groups. Whites supported Mr. Davis 7% percent,
Blacks by 92 percent and Hispanics by Bé percent. But notice
when Mr. Davis, who is the Democratic nominee, runs against
Mr. Puryear on page 5, notice how there is dhsclutely no
polarization, very little polarization on page 1,. bul someone
says considerable polarization on page 5. Why, 1n the same
community, does polarization occur in one kind of election
and not in the other kind of election?
A. Well, on page 5S, the Republicans decided to come out and
vote too, and basically, they voted for Republican candidates
and they voted for the Republican candidates in great
numbers, and therefore, this looks like a polarized race when
indeed it is merely a function of the fact that Republicans
came out and voted, and this diluted the vote of the White
voters in the Democratic Party. For all the voters in the
Democratic Party, 1 should say.
G. lI. guess all the voters includes minority voters too?
A. I guess 1t would be the White voters, though.
Q. All right. let's turn to Bexar County, Exhibit D-7.
A. Well, in Bexar County, we analyzed 2B elections. A lot
of those elections were Primary elections. Bexar County 1s
still considered by some as a Democratic county, although I
Ww
24
25
Taebel - Direct - Hicks
5 fc od ll
think that probably that county is shifting more and more
towards the Republican Parity. Bexar County. DY the way, of
all the counties that 1 looked at, has the smallest bloc of
White Democratic voters. When we take a lock at election
results, we will see that Whites voting Democratic constitute
around 12 percent of the voters, which is extremely small,
compared to the other counties. In most cases, that small
percentage of White voters voting Democratic doesn't actually
control the outcome, because 1n Bexar County, about 3é
percent of the registered voters are Hispanic. Again,
however , 1f you will look ‘at Bexar County, especially on
pages 15, 16 iand, 18, ‘you Can see that voting essentially
follows party lines. Page 15, you have Roy Barera again
running, this time he is running for a district courtiain
Bexar County. He gets 86 percent of the White votes. On the
next page, the Republican candidate gets 95 percent of the
White vote. And on page 18, the Republican candidate gets B6
percent of the White vote. I am subtracting 1n some cases,
because in some Cases, the variable we are focusing on is the
Democratic candidate. But 1n each case, the vote of the
White voters for the Republican candidate ranges from Bé tO
29. And that is going to be true throughout all of Bexar
County. Let me say that —-
Q. Let me Just interrupt you. On page 18 you said that the
Republican candidate, who 1n this case was White, got 86
Taebel = Direct — Hicks 5-223
percent of the vote. Would that be 84 percent?
A. Yes, I'm sorry. That is 84 percent.
QR. How does that compare with the percent of White vote of
Barera, the Republican candidate in 'B2 got for ea Judicial
District seat?
A. He got Bé percent. As a@ matter of fact, the Hispanic
candidate, Barera, got two percent more of the White vote in
‘82 than the Anglo candidate got from White voters 1n '84.
Q. All right.
A. In Bexar County, 1n our analysis, Hispanic candidates
won seven times and lost eight times against Anglo candidates
in Democratic Party Primaries for Judicial office, for 47
percent of the time. Hispanic candidates won Primary
elections approximately half the time 1n the analysis that we
did here. But of the eight times Hispanic candidates lost,
the Blacks supported the Anglo candidate in five instances.
Thus, the non-minority supported candidate won only three
times out of 15 for only 20 percent of the Primary elections.
In other word, in the 15 elections, one of the two minority's
groups preferred candidate won. In 12, let me say that over
again. In 1S of the elections, there were 2 instances 1n
which the candidate preferred by one or the other minority
group won. In 12 General elections 1n Judicial races,
Hispanic candidates won five times an Hispanic preferred
candidates won one. Thus, Hispanic or Hispanic preferred
24
eS
candidates won 350 percent of the time. By the way, the most
recent elections which we analyzed in this package here 1n
1988 for Judicial races, Hispanic Democratic candidates won
two of them for a 50 percent success rate.
Q. Does your analysis of elections in Bexar County lead you
to any conclusions about whether Whites vote consistently as
a: bloc =—
A. No .
QR. So as usually to defeat the minority, preferred
candidate of the minority voters?
A. Well, Hispanic candidates have won approximately 50
percent of the time in the Primary elections. Minority
voters, if you include the Blacks, have won 12 out of 15
times. I can't figure out the percentage right offhand, Sot:
it is. a fairly high percent,
Q. What about whether minority voters, did you form any
conclusions about that question? That 1s, whether Whites
vote consistently as a bloc so as usually to defeat the
preferred candidate of the Hispanic voters?
A. No, it 1s not. I+ is not. No consistent pattern there.
As ‘T''said, it ie 350/380 if you just look at Hispanic voters.
If you look at Black voters and Hispanic voters, 1t 1s only,
it is only three times out of 15 times.
Q. But were the conclusions you reached in Bexar County
consistent with the conclusions you reached insofar as
Taeebel — Direct - Hicks 5-22
General elections are concerned in the other counties that
you analyzed?
A. Yes. And what you see in the General elections 1s that
the voters basically revert back to their partisan mode and
vote for the candidate of their Party, irrespective of race
or any other factors.
GQ. All right. Now, 1et's turn to Harris County, Exhibit D-
ee How many elections did you analyze in Harris County?
A. We analyzed a whole bunch. It was 41 elections, as I
recall. And Harris County, being the biggest county 1n Texas
with somewhere around 600 precincts, 1t takes an enormous
amount of work to put data 1n the computer. Harris County,
8s & matter of fact, probably took us, took between one-third
and one-half of the total time that we did in the analysis of
elections.
@. What kind of elections did you analyze?
A. We did all kinds of elections in Harris County. Primary
elections and General elections. l1 can't recall right
offhand how many of each we did. It looks to me as 1f 1t was
about 50/50.
Q. Did 'wouido it for all kinds of offices”
A. Yes. Well, we did it again, mainly for Judicial
offices, but there were some other offices I think that we
looked at there.
Q. What can you tell me from your analysis about the
partisan orientation of this county?
A. Well, Harrie County is probably the most competitive
county that we looked at. It is very close in terme of
Republican or Democrat. And 1t 1s somewhat unpredictable on
who is going to win the election. It 1s not unpredictable on
how voters will vote, but somewhat unpredictable who will win
the election. 1 should point out that since 1980, only 758
percent of the voters actuslly vote in the Judicial races.
But what we see in the races, especially —--
Q. Can you say that number again, 73 percent?
A. Seventy-five percent of the voters, only 73 percent of
the voters, only 75 percent of the total voters actually
bothered to cast the oy in the Judicial races. The
falloff is 25 percent, in other words.
0. “All right.
A. What we see, if we turn to the first four elections,
however, on pages 1 —— well, we don't have to turn at all
because we see a very predictable pattern. In the first four
elections for example, we see that the average, let's see
what I have got here. Well, I don't have the average here
right 'offthand, but basically it ds about, in the first four
elections, about 31 or 32 percent amazing consistency, 1t was
the White vote for the Democratic Judicial candidate, ranging
from I think 31 to 34 in the first four elections that we
analyzed. That just illustrates the kind of consistent
St
rn
24
do
Taebel - Direct - Hicks 5-227
pattern that you get among voters, especially in Judicial
offices in the middle and bottom half of the ticket. There
are some instances of mirror voting, where you change the,
change some aspect about the candidate and it doesn't make
any difference whether it is Republican or Democratic. you
are going to get the reverse results. 1f you take a look at
page 37, for example, that was the one we changed, wasn't 1t?
QR. Yes.
A. James is a Black Democrat, if 1 recall correctly, and
Shaver is the White Republican. Shaver, the Republican, is
70 percent of the vote. If you go to page 41, Moore becomes
the Republican candidate and Moore is Hispanic, running
against a Black, and he gets 70 percent of the vote. So,
regardless of the racial makeup of the candidates running for
office, or regardless of any other factors, how they
campaigned or whether they are incumbents or anything else
you want to look at, the partisan vote by White voters and by
Black and Hispanic voters is exactly the same, or almost
exactly the same. That illustrates what | said before,
mirror voting. That is regardless of the characteristics of
the candidate, the best way of describing the election 1s
partican affiliation of the candidate.
Q. Did you do any analysis, study of straight ticket voting
in Harris County?
A. Yes, we did. There is extensive straight ticket voting
68
)
24
ed
aghel = Direct —- Hicks S5-ccB
in Harris County. Again, 1 had access to Dr, Murray's study,
and he shows that there is quite & bit of straight party
voting. For example, 1n 1980, he shows that virtually 90
percent of the GOP voters voted straight party in Judicial
races and B9.3 percent of the Democrat voters. In other
words, something like 430,000 voters voted the straight
ticket in the Judicial races in 1980. And by the way, 1n the
Black precincts, 98 percent of the voters cast & straight
party vote, SO percent for the Democratic candidate and one
percent for the Republican candidate. That again illustrates
how straight party voting and the use of straight party
voting on the ballot affects and differentiates the partisan
elections from non-partisan elections. In other words, only
10 percent of the voters are voting in any kind of
discretionary manner. Ninety percent of the vote 1s based
solely on party without any reference to who the candidates
are.
Q. In a county that is as closely balanced as you have
testified Harris County is, in terms of party preference Or
party voting, does that place added emphasis on the
importance, you might say, on the swing voters on the outcome
of elections?
A. Well, when you have a very competitive two-party system
and you have two parties equally balanced, certainly the
swing voters become a critical factor in the outcome of the
eb
25
Taebel —- Direct - Hicks S—229
elections. There are the, in a sense, they decide the
outcome of the election, the swing voters.
Q. Have you looked at what happened to the swing voters in
Harris County, and if you have, have you formed any
conclusions about whether they vote —- firet of all, let's
assume they are primarily White.
A. Yes.
Q. Have you formed any conclusions about whether the swing
voters in Harris County as you kind of talked about them just
now, vote consistently as a bloc s0 as usually to defeat the
preferred candidate of the mincrity voters?
A. No . The swing voters vote in a variety of different
ways, as a matter of tack,
Q. How do you know that?
A. Well, because you can see that on some occasions
Republican candidates get elected, other occasions, the
Democratic candidate gets elected. So, there 1s no
consistent pattern on which way the swing voters vote. As a
matter of fact, it is really very, ijt is a very interesting
phenomenon, what goes on in Harris County. Because as you go
down the Judicial candidates, vou will see a candidate, .8
Republican on the ballot right next to a Democrat and 1n one
race, the Republican will win and the other race, he will
lose, the Republican will lose. You see a very inconsistent
pattern as you go down the ballot on who wing and who loses.
na
24
es
What you will still see is a very consistent pattern of
athe ght arty voting. There ie no question about that. Ag
the Judge said this morning, Democrats and Republicans
BG. Which judge, we have had so many”
A. Judge '—-— ‘well, let me see. Judge Phillips. Judge
Phillips pointed out, and 1 think correctly, that in Harris
County, both candidates from either party start off with =a
huge number of votes for their behalf. So just, once you get
to. be a Republican candidate or a Democratic candidate, you
are going to get well over 200,000 votes. That is a pretty
good sizeable vote. Okay.
Q. I think you answered, but 1 will ask again to make sure.
Did you form any opinion about whether Whites vote as a bloc
in the swing category so as usually, consistently as a bloc,
so as usually to deny victory to the minority, the candidate
of the minority voters?
THE COURT: That has been asked and answered. And
his answer was they do it in a variety of ways.
BY MR. HILKS:
G. I need to go back to Dallas County for just a moment. 1
wan't need to refer back toc the exhibit, but | diyc want to
ask you a question that 1 skipped over. Have you looked at
all into the question of straight party, straight ticket
voting in Dallas County as you said you did in Harris County”
A. Yes. 1 think I mentioned earlier that in Dallas County,
Ysebel — Direct = Hicks S231
straight party voting exceeds 30 percent. And again, 1n the
Black precincts among Black voters, if 1 recall correctly, it
reaches 92, 93 percent. Straight party voting among Black
voters is extremely high in Dallas. 1 understang ac an
election judge that there is an override feature, but by and
large, that override feature is used very selective and very
unusually, sg that straight party voting by Black Democrats
ije'very high. And it is very high for all voters in Dallas
County. Again, Dallas County being the second largest county
in Dalles, 1 mean -- that is what'l think sometime —-- in
Texas, it also has an extremely long ballot, and thus, 1%
becomes very difficult for voters to sgrt out each of the
individual candidates. So straight party voting tends fo
take over in those types of elections.
QR. What about in Harris County?
A. There is a lot, I mean there is even more straight party
voting in Harris County, given the fact that the ballot 1n
Harris County is even longer.
Q. Did you review any of Dr. Murray's materials 1n order to
arrive at your conclusion about the swing voters voting
consistently as a bloc?
A. Yes. Dr. Murray was kind enough to send me several
reports that he had written on Judicial races in Houston and
I read, 1 think, four or fiveiof them. Esch of them focused
on a particular year, and I think he went through 1984,
Er A Te SR Ca i a INA Re
24
es
Tepbalii- Direct — Hicks 5-3
Basically, he analyzed those elections. I think can
summarize his findings. 1" have known Dr. Murray for a ‘long
time. He ‘has, as 1 mentioned before, he is a political
analyst in Houston and he took over my position with NBC News
Elections. He points out 1 think three things. Une thing,
again, is that straight party voting 18 very extensive 1n
Harris County. There is a quote from him here that savs
factors influencing Judicial contests —-
MS. IF ILL: 1 am going to object to the quote from
Dr. Murray's report. I believe 1t was put 1n evidence
yesterday, and it speaks for itself.
THE COURT: Well, they do. But you can go ahead.
Overruled.
A. Thies is quoted from it, "Most important among these is
general party performance since so much of the Judicial
voting is along straight party ticket voting." His data base
basically, and his study, basically, shows that partisanship
in Harris County is the dominant descriptive way of how
politics work there.
Q. Did he help you out any in reviewing his materials on
the question of consistency of the voting pattern of the
swing voters?
A. Yes, he did. He insinuates in all of his studies that
swing voting is basically not a, in fact he states qulte
forthrightly that swing voting is not a function of race, has
20
nothing to do with races, 1t 1s a function of many other
factors. And swing voters sometimes vote for Republican
candidates, sometimes go with the Republican candidate,
sometimes go with the Democratic candidate.
G. Has anything in your analysis that is in Exhibit D-5,
@)
0
MD n ct
n ot
@] Z 0 C have you seen anything 1n your analysis that su
the situation 1s otherwise?
Q. Different than what Dr. Murray has described?
A. No.
Q. Dr. Taebel, you started off earlier talking about taking
a functional view of the political process as one of the
things that you said you tried to do when you started the
whole thing. Does 1t make sense te El to take a functional
view of the political process when you are evaluating
partisan elections without evaluating the influence of party?
A. No.
Q. You, as a political scientist?
A. No. No, I don't see how anyone can evaluate partisan
elections, using a functional approach, without understanding
how the party system works, and without taking 1nto account
parties. As ] said earlier, party affiliation 1s the
strongest, in fact it overwhelms any other factors in
describing how partisan elections work. Not only in the
State of Texas, 1 should say, but throughout the Linited
20
Yaebel — Direct — Hicks S-234
States.
MR. \VHILCKS? May I have one moment? I pass the
wltness.
THE COURT: We will take about 10 or 195 minutes
before we start cross examination.
(Brief recess.)
(Open Court.)
THE COURT: I apologize. It took a little longer,
Chief Judge Clark was on the phone, and 1f you think I am
going to hang up on him, you are mistaken. It would be like
General Mattox calling you, and I don't think you would hang
up the phone, or LULAC calling you, whoever the head of LULAC
is, you know. Okay. Go ahead.
CROSS EXAMINATION
BY MR. GARRETT:
Q. Well, Dr. Taebel, I hardly know where to start.
THE COURT: You will find a place.
MR. GARRETT: 1. think so.
BY MR. GARRETT:
Q. 1 believe you said that this was a first case 1n which
you had. had an opportunity to look at partisan elections; 1s
that right?
A. I think in, I think it is under the Voting Rights Act.
Q. I believe you also had an opportunity to look at
partisan elections in the case in the valley, Ranjel versus
22
£3
24
23
Mattox”
A. That 'sscorrect.
Q. And further, I believe a couple of weeks ago 1n the (City
of Dallas case, you also presented the same evidence on
partisan elections, did you not?
A. Right.
Q. However, in this case, you did look at partisan
elections across nine counties that are being challenged;
right?
A. That's correct. Going back to the valley, the 13th
Judicial District, for all practical purposes, that was
really a non-partisan election, because the Democrats control
the elections 1n the valley. That 1 probably why I didn't
think of 1t as a partisan election.
Q. And what, I understood you to say in this case was that
basically you looked at district court races, County Court at
Law races and other races basically in order to get an ides,
in your words, what was going on in the county; 1s that
right?
A. Right.
Q. Okay. In your presentation, both 1n the testimony and
in the exhibits that you prepared, 1 didn't see that you made
any distinction between situations in which a White ran
against a Black or a White ran against an Hispanic or a White
ran against a White, they seem to be all lumped together 1n
N
n
Tasbel ~ Cross ~ barrett
1 both your testimony and the exhibits; 1s that right?
ce A. I am not quite sure 1f I made the distinction on each
w
sheet of who ran against whom.
4 Q. You didn't make any tally 1n those cases 1n which a
Nn
White ran against a Black, you know, to determine whether or
& not there was success or White bloc voting, or anything like
7 that, I believe you lumped them all together as far as your
8 conclusion is concerned; is that right?
Q A. J.sdon't think so. I think 1t depends on what county you
10 are talking about. I think in some counties I indicated a
31 success rate.
12 RQ. Let's talk a moment about Primaries versus General
13 elections.
14 A. Okay.
15 Q. I believe you said that for Hispanics and Blacks,
16 looking at a Primary election could be fairly accurate,
17 because as a matter of fact, most Blacks and most Hispanics
18 vote in the Democratic Primary; is that right?
19 A. Right.
go Q. I believe you told me at depositions over the last
21 several months that about 95 percent of the Blacks voted in
ee the Democratic Primary in Texas; 1s that right?
e3 A. That is what I would estimate.
24 Q. And as for Hispanics, it 1s somewhat a lesser
£3 percentage, ranging from BO to 90 percent of Hispanics vote
in the Democratic Primary; right?
A. Right.
Q. And then there are —-
A. Let me say, let me say that 1s a proportional. ] aminot
saying 70 to BO percent of Hispanics vote in the Primary, 1
am just saving as a proportion of the Electorate. I mean,
anyway, yes.
Q. The truth of the matter 1s, very few Blacks vote
Republican; right?
A. Correct.
RQ. And not very many Hispanics vote Republican; correct?
A. Correct.
Q. And then there is & core of White votets, 1 guess the
majority of whom vote Republican and then some lesser number
of whom vote Democrat; 1s that right?
A. Well, that depends on what County you are talking about.
As 1 mentioned, 1 think in Travis County it is fifty some
percent, in Jefferson County, it is more than that. So, the
White voters who are Republican seem to me range anywhere
from Jefferson Lounty, which I'can't recall the figure right
offhand, down to, 1 think in Bexar County where 1 said
Democratic White voters probably constitute 135 to 20 percent
of the population, 15 to 20 percent of the voters, There 1s
a wide range in the nine-county area of the White Democratic
voters, depending on what county you are talking about.
GQ. I believe you said that one of the things that you
distinguished when looking at partisan versus non-partisan
elections 1s that partisanship seemed to be the overwhelming
explanatory factor a€ to how people vote; 1s that right
A. Well, I didn't use the word ‘explanatory’. I basically
said, it seems to me partisanship best explains, or, I'm
sorry, best describes the political process 1n these
communities.
Q. All. right. I believe you further told me at depositions
that there 1s a very strong correlation between race and
party, especially for Blacks and Hispanics; isn't that right?
A. Well, as I said earlier, Blacks participate 1n the
Democratic Party as well as Hispanics. Whites are basically
split in various proportions among, in the Democratic Party.
Q. Well, they participate in the Democratic Primary, but
they participate at a rate centering around 90 percent; 1sn't
that about right?
A. In the Democratic Party”?
Q. Yes.
A. 1 think. so.
B.. So, there 1% a strong rgentification then, belwegn
either being Black or being Hispanic and participating 1n the
Democratic Party; correct?
A. Oh, sure.
Q. So then when we talk about partisanship describing
20
Taebel.- Crogs i —~.haerrett
elections, when you are talking about Blacks and Hispanics,
we could substitute the word ‘race' or ‘ethnicities’ to
describe elections; wouldn't that be fair?
A. Well, I don't know, because I want to deal with all
three groups.
Q. I understand. But we are looking specifically at Blacks
and Hispanics 1n this race.
A. Well —--
EB. Right?
A. I am looking at all three groups 1n this case.
Q. Now, I believe you mentioned that there was one other
especially distinguishing factor in partisan and non-partisan
elections, and that had to do with Surrioat right? That
turnout in partisan elections would probably be as high as 30
percent, but a non-partisan, typically city and school board
elections, it ranged around 10 percent?
A. Right.
QR. Given that factor, 1 suspect that what you would see 1n
partisan elections, whatever is operating there, would give
you a clearer picture of the entire population than would
say, maybe non-partisan elections; would that be right”
A. Well, I don't know. I like partisan elections because
you have a higher voter turnout. One of the things, as you
know, that we use in these studies is the population of the
precincts, and it seems to me with the higher voter turnout
24
es
Faeebel — Crosse — Dbarret Ey Dy
you probably get a better reflection of the total population
of the precinct than 1n non-partisan elections. Non—-partisan
elections, because of all kinds of exogenous factors, you
might get a very biased turnout. But 1 really don't kriow, ‘it
depends on the election.
Q. But in general, you do get a higher turnout 1n these
partisan elections”?
A. Oh, sure.
Q. I] believe you stated that what you saw going on,
especially after a primary election in which the minority
candidate would get some White support, would be that the
General Election, the Republicans would dilute the White vote
that went for the minority candidate in the Primary; 1s that
right?
A. Well, what I was trying to say 1s, you can see that in a
number of races, the Whites supported a minority candidate,
and I] was trying to use that to illustrate the partisanship
nature of the General Election versus Primary elections.
Q. If in fact that is true, that the Republicans do dilute
the votes that went for the minority candidate 1n the
Primary, wouldn't another way of saying that 1s, at once
you get to the General Election, Whites dilute the votes that
went for, dilute the minority votes that went for the
minority candidate in the Primary; wouldn't that say the same
thing?
TJaebel - Cross —- Garrett S=-24 1
A. You kind of lost me someplace.
Q. Probably because 1 couldn't say 1t right. Let me try
again. It you state that the Republicans 1n the General
Election will generally dilute the White vote that went for
the minority candidate in the Primary, wouldn't another way
of saying that be that in the General Election the White
Republican vote will dilute also the minority vote that went
to the minority candidate in the Primaries”?
A. Az 1 said parlier, it depends if they are the majority.
Republican voters tend to vote for Republican candidates. 1f
the Republican candidate, and the Democrats support different
candidates, it is automatic you are going to get dilution;
right? In this way, if you keep all the Democrats together
in one part of the county and all of the Republicans together
in the other part of the county, you don't have any kind of
impact of either group. When you put them together,
something is going to happen, something bigger than when you
keep them separate. So, in the Primary Election, you have a
sub-component of the elective voting, and that is the way we
nominate our candidates.
Q. Okay. So let me call your attenticn toc this little
picture I drew over here on the blackboard during the break.
A. That is a picture?
0. Take my word for it. And let's assume that this 1s a
county in Texas, let's assume that we divide it, it has five
rn
aebel - (roses el
Q. we divide it into five parts.
that, say in this case, hoth .Blacks
this shaded area.
A. Right.
G)
+1]
ryett i fa
Let's assume further
and Hispanics live 1n
Q. Let's say they constitute maybe one-fifth of the
population of the town,
A. Right.
just to make 1t easy.
Q. Let's say further that those Blacks and Hispanics vote
about 90 percent Democratic.
A. Right.
Q. And we will
is predominantly Anglo.
A. Right.
Q. That being 80 percent of the county,
predominantly Republican. Okay?
A. Right.
0. Let's assume we have a race
Democrat running against a White Republican, and
that these folks vote their normal
A. How many assumptions?
Q. There is a lot of them,
A. I know.
Q. The Republican White candidate
in which there
further assume that the rest of the county
they vote
4 7 =A -
parity way=.
but they are easy.
is going to get elected
ies a minority
let's assume
6 /
I Be irs LB Car a Tl
Taebel —- Cross — Garrett B-2h
every time, isn't he, assuming the people vote thelr party?
A. That's rignt. No gist gh about that.
QG. It is essy to Fix. All we have to do is divide thas
county into five districts and put one district over there 1n
the minority area, and the result would be that nearly 100
percent of the time, the minority choice would win 1n that
area”?
A. The Democrats would win in that area, right.
Q. That's right. Let me talk just a minute about your
regression analysis and the method that went into it. 1
i
think you mentioned that, I believe you said 'Gingles' and
the plaintiffs say ‘Gingles'. We are going to ingle’ a 10%
of this. ‘Gingles' involved partisan elections; right?
A. 1 am not that familiar with what elections they were
looking at.
Q. State Representative elections.
A. I wasn't sure whether that was Primary or what. The
'Gingles' decision never really said too much about the
elections, and 1 tried to find out one time. But I will take
your word for it. | |
Q. That'e Tine; In your analysis, when you separate out
the three ethnic groups, White, Hispanic and Black, I take it
that you are using there the same definitions that the Census
Bureau uses; is that right?
A. Well, yes, I think so.
LP Ts PST RS AT
24
25
Taobhell —'"Troegis Garrett Ce Di dy
Q. All right. So basically, your White category actually
includes Hispanics; is that correct?
A. No, not really.
0. When you regress against, when you have only the X axis,
White population.
A. Right.
Q. That includes Hispanics?
A. No.
Q. It doesn't, you have factored them out?
A. Right.
Q. How did you do that?
A. Basically, the Census Bureau gives you, as | recall, and
3 Se trying to remember this because I do 1t, 1t seems, all
the time, but 1 do it mechanically, it gives you three
categories. It gives you Black, and then there is a category
called ‘other'. And if you factor in the Hispanics into the
‘other if you add, if you add the ‘other' or subtract the s
‘other' from the Hispanics, and then subtract the difference
from the Anglo, you will get a fairly good, I'm sorry, from
White, you will get a fairly good estimate of the White
population, or the Anglo population.
Q. is that what you did in this case?
A. Right,
Q. let's take —-
A. I may have explained that wrong. But 1t 1s a simple
Yaebel ~- {roes — Garrett RE =ELS
.
a 1 procese of using, subtracting the self-igentified Hispanic
eo population from “other' and from White, and that willl
3 basically, for all practical purposes, give you the Anglo,
G4 We did some tests on this in Monahans, as a matter of fact.
8 It comes out really close to what the Anglo is, even though
b vou are right, if you don't factor them out, you will get
7 Hispanics under either ‘other ' category or under the White
8 category. And sometimes under Black category, too.
9 RQ. Okay. Let's take a look at Dallas [ounty for a moment.
10 1 believe your analysis, looking not only at Black on White
11 and Hispanic on White and White on White races, 1t 1ndicstes,
iE does it not, that no Black won an election running as a4
13 Democrat against a White opponent?
14 A. Nobody won as a Democrat.
a G. Well, last year. But 1 am talking over the time period
i that vou looked at, '80 through "88.
17 A. All I am saying, generally speaking, 1t 1s very
18 difficult for any Democrat to win in Dallas County.
19 Q. The answer to my question is, no Black has ever Won
20 running as a Democrat against a White?
cl A. 1 don't know about ever, 1 can't answer that.
£2 Q. From 1980 to 19887
3 A. 1 will take your word for it.
24 Q. l believe you said further that in the elections that
£3 you analyzed in common with Dr. Engstrom that your results
AE ET A Ge Fy TE LJ 3 I A LE a of NT TR
A Dr RS TA Rel a
24
23
Yaebel - Cross. —- Garret 5-24&
were very similar; 1s that right?
A. 1 think so.
0. And essentially, his results showed that 1n those Black
on White elections that only when a Black was running as a
Republican were they elected; correct?
A. That's correct.
a. And that in both of those cases, neither one of those
Black candidates got substantial Black support; correct?
A. That's correct.
QR. Taking a look et your analysis, 1 believe in Dallas
County you analyzed some 23 races. Does that sound correct?
A. Yes.
Q. Okay. And it appears they were all some type of court
race, either a Primary or runoff or General Election with two
exceptions, one being the Lieutenant General race in 198467
A. Attorney General race.
Q. No, 1'm sorry, 1 mis-spoke. You've got Lieutenant
Governor in '86 and Attorney General in '867
A. That's right.
RQ. If vou will sccept for me, accept Trom me for a moment
the proposition that if Whites are voting less than =
percent for one candidate and Whites are voting more than 350
percent for that same candidate, then we have a differential
in the way they vote; would that be right?
A. That's correct.
08
} a. And I added up all of them that you did there, all 23,
and 1t appears to me that 21 of the 23 cases, Blacks and the
Whites voted differently in Dallas County.
A. That 1s what my gauge shows, that 1s what ] was trying
to show. Because Blacks, Blacks and Hispanics vote
Democratic and White votes Republican.
Q. In only seven of those races, did the choice of the
Black community win; 1s that right?
A. I don't know.
0. Take my word for it.
A. 1 ‘will take your word for 1t.
Q. In Tarrant County, let's take a look at 1t for just a
moment? I believe you analyzed 17 races in that county, and
they seem to be court races with the Exception of an 'Bé
Attorney General race.
A. Right.
RQ. Okay. And 1t appears there that in 17 out of 17 times,
Whites and Blacks voted differently?
A. I don't know.
Q. Does that sound right?
A. Well, Whites and Blacks voted ditferentiy?
Q. In Tarrant County.
A. They are going to vote differently all the time. I
mean, there 1s no —-
QR. No question about that?
24
eS
Taebel — [ross — barrett 5-268
A. That is true in Maine and California and Colorado. In
partisan elections, you are talking about?
Q. So we don't have to go through the rest of these
counties, it is true in all those other counties”
A. It 1s true everywhere.
0. Save yourself 30 minutes. Dr. Taebel, in the last
several years, lI believe you have testified in several cases
involving vote dilution, jones versus City of Lubbock, 1
believe you testified in Compos versus the City of Baytown,
you testified 1n Ranjel versus Mattox, you testified 1n
Dallas last week. In any of those cases, did you find any
consistent and persistent pattern .of racially polarized
voting?
A. Consistent and persistent?
Q. That is the standard, isn't it?
A. ‘No, it is not. I am talking about bloc voting.
QR. I want to talk about racially polarized voting. We will
talk about bloc voting in a minute.
A. I think I said yes, polarized voting more or less means
two different groups vcte differently. And you are always
going to find that.
QR. That 1s a given.
A. If you define it as two different groups voting
differently, like Dr. Engstrom does, and I don't have any
problem with that, you very seldom ever find two groups
mn
Ww
4
eS
Taebel - Cross ~ Garrett i La
voting exactly the same.
G. Let's switch the focus, then, to bloc voting. I believe
you told me a couple of weeks ago in Dallas that bleocc voting,
you generally defined as 90 percent vote one way or the
other; is that right?
A. That is not right, That 1s how you operationalize bloc
voting. The definition of bloc voting basically means that
any identifiable group votes as a unit. That 1s what we mean
by bloc vote. Let me explain this. If you talk about the
Soviet bloc or the farm bloc or any kind of bloc, you are
talking about people who, generally speaking, vote the same
way as a bloc, as a unit all the time. Today I was talking
about Republican White bloc voters and Democratic White bloc
voters. If you take a look at the voter patterns that 1
described here, you are going to see that they meet the three
criteria l talked about. First of all, the level of voting
is very consistent throughout the entire study. Secondly, ‘it
persists from year to year to year. I 1llustrated that
several times where the White Democratic voters virtually
gave the same percentage of votes to one candidate throughout
the year, and ithirdly, then, 1 .sa8dd: 1 think that 1t peruis
That is said, consistency, persistency and similarity of
vote. That 1s what I show right here, White Democratic
blocs, White Democrats vote as a bloc. The vote 1s very
close, it is consistent because you don't see sharp
8]
7
Taebel — Cross —- Barrett 5-2
deviations. And thirdly, it persists over time. That 1s
what 1 mean’by bloc voting. That is basically what 1 think
the term comes from, political science, we use 1t that way,
or iat Yeast many people use it that way, and.l think it is a
legitimate term.
Q. Are you abandoning the 20 percent standard”?
A. No . li think that one of the things that you want to do
then is, how do you know whether bloc voting, 1f you are
taking a look at one particular group, how do you know iF
they vote 90 percent. How do you know of they bloc vote.
Ninety percent seems to be a useful standard.
0. One of the reasons we look at the question of bloc
voting 1s to see whether or not one group consistently and
persistently, over time, defeats the choice of the other
groups is that correct?
A. Right.
QR. And wouldn't it be true, Dr. Taebel, that say
consistently and persistently over time, one group votes 31
percent for candidate X and against the choice of the other,
that would be sufficient bloc voting to defest theirschnoice,
wouldn't at”
A. Let me go back. I am afraid I am not making my
definition clear.
GQ. ] understand your definition. Just answer my question.
A. There is no such thing as sufficient bloc voting in my
un
~J
24
23
sebel —Trogse —rharrelt 5-251
mind, because bloc voting 1s an absolute term. You have bloc
voting Or you Con't have Dloc voting. Bloc 1s arn absolute
term 1n contrast to racial polarization, which 18 a relative
term. That ie what I am trving to explain toivou. You are
using 1t as a relative term.
Q. ] am suggesting to you thet 1t is true, is it not, that
1f you want to know, the question you are trying to ask 1s,
do they vote sufficiently as a bloc to defeat the other
side's choice. The question of sufficiency could be
satisfied by the 51 percent standard or by the 30 percent
plus one vote standard over time.
A. Not under my definition it couldn't.
Q. Okay. Then maybe we have different definitions. That's
fine.
A. That isi~— all right.
Q. That's fine. Let me sum this up. What I understand you
to be saying is that your analysis of the elections over the
last ten years or so in these counties that are under
challenge suggest to you that in general the Republican bloc
defeats the choice of the Democratic Bon: ig that"owight?
A. No, it certainly doesn't in Jefferson County.
Q. In Jefferson County?
A. It doesn't in Jefferson County, it doesn't in Travis
County. As 1 said earlier, 1 think that in Tarrant County,
we have seen a shift starting in 1986. But you are right, in
Ui
nN
geo] =i iroes barnett 5-2
the last two decades, there has been a dramatic shift in
party affiliation in Texas. Back in the 'SO's and ‘60's, the
Democratic Party dominated Texas politics. I think since the
election of Clements 1n about 1978, we have seen Texas become
a very competitive two-party state. Before then, and
especially when the Voting Rights Act was passed, 1t seems to
me that we had a one-party state, and therefore, all
questions evolving around politics focused on the Primary
elections. Now, the question focuses more extensively, 1t
seems to me, on the General Election, because we are a
competitive two-party state. I am not saying every county
that I analyzed 1s competitive. I mentioned Harris County 1s
the most competitive. It certainly seems to me Midland is
very much Republican and Jefferson is very much Democratic.
QR. Let's take just a short look at Jefferson lounty. I
believe the evidence in the record is that Jefferson County
is about 28 percent Black.
A. Yes.
Q. Will you accept that? And did you take a look at the
ethnic composition of State Representative Price's district?
A. 1 had a report from Dr. Sanders.
Q. I will represent to you, Dr. Taebel, that it is 49
percent Black; does that sound about right?
A. Forty-nine percent Black?
i. Yes.
faebel — Crosse = Garrett S=2=
A. That wouldn't surprise me.
GQ. So, there 1s a substantial difference between the ethnic
composition of his district and there 1s the county as a
whole, nearly twice the percentage of Blacks?
A. I will take your word for iE.
G. And do you agree with the observation made by Dr.
Brischetto the other day that as the district approaches 30
percent Black, Hispanic or whatever we are looking at, that
the opportunity to elect a minority greatly increases”
A. Well, I don't know if 1 agree with that or not.
3. Have you made a study of 1t?
A. Yeah, there has been several studies, by the way, which
show as a district becomes more Black or more Hispanic there
tends to become much greater polarization, and thus not until
Black or Hispanic population reaches a majority do they
succeed in electing candidates of their choice. In fact,
there is a fairly good study out of North Caroling —— when |]
say good, 1 mean quality study —-—- that shows racial
polarization increases when a minority population starts
crossing 25 percent. he it gets up to 40 percent, the
severity of racial polarizetion and racial strife becomes
even more severe. The reason for.that, of course, 1s quite
simple. White starts feeling threatened and they start
reacting to that threat by voting against White candidates.
So, I disagree with Dr. Brischetto on that.
24
25
Taebel — Cross —- Garrett i 2
Q. That 1s the same testimony you gave back 1n 1976 1n
Wilson versus Bayview and the City of Amarille”
A. Consistent.
GQ. And 1 take it, 1t is based on the same studies. What 1
i
want to know 1s, Dr. Brischetto's testimony wes that there
was a fairly recent study he had done suggesting as the
population reached S50 percent there was more likely a
possibility of electing a minority candidate. I am wondering
if you disagree with that?
A. I haven't seen his study, so I don't know.
Q. And as to Tarrant Lounty, lI. think vou told Mr. Hicks
that the recent switch, of a substantial portion of the
Judiciary to the Republican Party at least was a pretty good
indicator in their opinion Tarrant County was becoming more
Republican. And I believe you confirmed that from your own
personal experience; 1s that right?
A. Yes.
Q. So you are not, what you are telling us then, I take 1t,
that there is a substantial phenomenon of racially polarized
voting? You can take that as a given; 1s that right?
A. Sure.
Q. But you believe, and your testimony 1s, that the reason
Democratic minority candidates are losing 1s that there 1s a
substantial Republican White bloc voting against them; 1s
that right?
Taebel — Lross — Garrett i Tel i I
1 A. That 1s the reason.
c MR. GARRETT: Okay. That 1s all the questions 1
3 have. Thank you very much. Pass the witness.
4 THE COURT: Me, If1117
S CROSS EXAMINATION
6 BY MG. wif Ji.l.2
7 Q. Dr. Taebel, you did analyze Quite a few elections 1n
8 Harris County, vou said 41; is that correct?
9 A. Excuse me. Somewhere around there, right.
10 Q. Somewhere around that number?
11 A. Correct.
12 Q. And for my count, almost a full half of those elections
13 are Hispanic on White election, or elections involving
14 Hispanic candidates”?
15 A. That could be.
16 @. Okay. You understand that neither the plaintiffs nor
17 the plaintiff intervenors in this suit are advancing claims
18 on behalf of Hispanics?
1% A. I was told to analyze political, how the political
20 procese functions in the city or county of Harris, and that
21 1s what I did.
LE Q. Do your analyses of Hispanic versus White in Harris
23 County purport to tell us anything about the ability of
24 Blacks to elect representatives of their choice, or would
es that purely speak to Hispanics? I am wondering 1f I should
IE XX TTT LY TON TI TR YY RA
24
es
ask you any questions about Hispanic on White.
A. It tells me something about minority relations, in
minorities.
Q. Hispanic on White elections?
A. Uh-huh.
QA. Tells you something about minority elections?
A. Yes.
0. Okay. We are not advancing claims of political
cohesion, but do they tell you about the ability of Blacks to
elect their preferred candidate when the candidate 1s Black?
A. I think they tell me something.
Q. What do they tell you?
A. They tell me whether Anglos will vote with or for
minority cites
RQ. Well, the term ‘minority candidates' can either mean
Black or Hispanic. I am specifically talking about Black
candidates.
A. I understand you are talking about Black candidates, but
I was trying to analyze all minority candidates.
Q. I am going to assume that your answer 1s Hispanic on
White elections don't tell vou anything about Blact
candidates.
A. I don't think that is right.
Q. What do they tell you about Black candidates, Hispanic
on White elections?
20
24
es
A. What do you mean, what do they tell me about Black
candidates”?
(. In other words, 1f I am going to stand here and ask you
questions about the ability of Black voters 1n Harris County
to elect their preferred candidate when their candidate is
Black.
A. Right.
G. What will the Hispanic on White elections that you have
analyzed, how will that help me in questioning or help you in
answering me?
A. Well, I think 1t would tell me how Anglos vote In
relationship to a minority group. And I am assuming to some
extent that how they vote for Hispanics will spill over into
how they will vote for a Black. I am not saying 1t 1s going
to be identical, 1 am not making that argument.
Q. That is an assumption. Okay. Now, what about White on
White elections, do White on White elections tell you
anything, for instance, about the ability of Black voters to
elect their preferred candidate when that candidate 1s Black?
A. If you are in a partisan election, they do.
Q. White on White elections, how do they tell us something
about Black voters seeking to elect their candidate of choice
when that candidate 1s Black?
A. If it 1s a partisan election and one of the White
candidates is Black, it tells me whether or not -— I'm sorry,
rn
c4
23
one of the candidates is Democratic, 1t telle me whether the
Black voters preference will] be elected. Because I am
assuming that the Democratic candidate will be the preferred
choice of the Democrat.
QR. That is ‘good, 1 will give you that. What I am asking
you about is, does it tell us anything about Black voters ang
their ability to elect their candidate of choice when that
candidate is Black, if we are just looking at White on White
elections? Will White on White elections tell you anything
about the ability of Black voters in Harris County trying to
elect their candidate of choice when that candidate 1s Black?
A. Well, I think the answer I just gave 1s accurate. It
the candidate, one of the White candidates is Democratic, anc
that candidate --
Q. Then you know that Blacks supported the Democratic
candidate; correct?
A. Yes.
RQ. Do we know whether Blacks are able to elect their
preferred candidate if the candidate 1s Black?
A. Yes, you are. All 1 am saying is, you are going to
find, what 1 think my study shows here, my analysis shows
here is that there is a high relationship, there 1s a strong
relationship between the way Whites vote for a Democratic
candidate, regardless of race.
Ei +n 1 am not going to do this, 1 don't think 1 am making
Taebel = Trogse — 3% 111 5-25¢
1 myself clear. You mentioned Hispanic precincts and Black
c precincts earlier. To<Ccall a precinct Black or Hispanic, ‘sre
3 you saying that, are you talking about a precinct that is
4 more than 50 percent Black or Hispanic?
S A. Did 'T say that before?
& Q. You "Just used the words “Hispanic precinct’, and 1 am
IZ wondering, you didn't give a number. I am asking vou for
8 one.
Q A. ] don't think. if, 1. can't recall saying that. But If 3
10 am talking about a homogeneous precinct, 1s that what we are
11 talking about?
i2 Q. Well, that 1s not what I wanted to know, I guess. When
13 you say ‘Hispanic precinct', do you mean homogeneous’
14 A. Yes, that is probably, that is a shorthand term for
15 homogeneous precinct.
16 Q. And that would be 20 percent or more?
17 A. Yes.
18 R. Okay. You testified earlier that Primary elections,
1S Democratic Primary elections are not a good gauge for how
20 White voters support or do not support Black candidates 1n
21 elections; is that what you said, 1s thet an accurate
ge paraphrase?
3 A. No. I said that Democratic Primary elections and White
24 voting in Democratic Primary elections will not tell you how
25 the total election, how Whites in the total Electorate will
w
J
10
20
support a minority candidate, or more precisely, a Democratic
candidate.
0. It will only tell you how White Democratic voters
support a minority candidate”
A. That's correct.
GQ. And then I assume, by the same token, that a Republican
Primary will tell you how White Republican voters support a
minority candidate 1f the minority candidate was running as a
Republican?
A. Yes.
0. I didn't see in your analysis among the 41 elections a
1982 Republican Primary involving a Black candidate. Maybe 1
just didn't get it, Was the Ken Hoyt race for the 125th
Civil District Court, did you analyze that election and 1 did
not get it?
A. We had so many elections. I presume I just didn't get
the data. There was, on occasion, at least on one or two
occasions in the whole six months, we tried to get election
data. In some cases, the original data was blurred and the
xeroxing would not even take place. But, you know, I guess
we didn't analyze 1t. But "J don't know why.
BG. Let's go back to looking at that --
A. If you will hang ona second, 1 will see if it is on our
list. Tell me what race that was again.
N
Q. It was the 1982 Republican Primary for the 125th (Civil
24
23
District Court, Ken Hoyt losing to William Bill Powell.
A. 1 don't have Ken Hoyt. Who was the opponent?
3. William Bill Powell.
A. ] don't have that on my list of elections. I'm sorry,
That was a Republican Primary Election?
G. That is correct.
A. I'm sorry, I guess we didn't analyze 1t.
Q. Okay. Let's go back to the Democratic Primary and what
the Democrat, what looking at the Democratic Primary might
tell us.
A. Okay.
Q. And 1 may be wrong, so just correct me i1f 1 am wrong.
think you said earlier that because Blacks and Hispanics tend
to be overwhelmingly Democratic, and that 1s Democratic with
a big D', not a small 'd', that the Democratic Primary
actually has in it a disproportionate number of Black and
Hispanic voters as opposed to the General Election?
A. Probably.
Q. All right. So, if we look at the Democratic Primary,
iis looking at how Whites vote and Hispanics vote and Blacks
vote in the Democratic Primary, how will that tell us how
Whites support Blacks in that particular jurisdiction when we
are dealing with an Electorate that has a disproportionate
number of Black and Hispanic votes? I know, it is very
convoluted.
A. Let me see 1fT I can rephrase 1t. How would 1t tell
about all White votes?
GC. How would 1t even tell us about a segment of White
votes? In other words, we are dealing, let's suppose a B
candidate, a Black Democratic candidate 1s running 1n the
Primary.
A. Uh-huh.
Us
Q. Okay. And we have got Black voters and Hispanic voters
and White voters?
A. Uh-huh,
Q. And not all Democrats, people who are going to vote
Democratic, whether White, Black or Hispanic, come out an
vote in the Primary, not ail of them do.
A. Right.
d
Q. And in that Primary, .you have a disproportionate number
of Blacks and Hispanic voters.
A. Uh-huh. I don't know what you mean by disproportionate.
I was talking about --
G. A higher number than you would have 1f you looked at
General Election, total Electorate.
A. Right. Right. Okay.
Q. How does that Primary tell us about how Whites do or
not support Black candidates even running as Democrats?
A. In the entire jurisdiction?
do
Q. Well, even within that party in the General Election.
20
Taebel' — Cross — 1fi11;: =263
A. What 1t tell use 1s that the White voters who voted in
the Primary Election support one ticket. YOu know, voters,
even 1n General elections you don't, all the voters don't
vote in General elections. As | said, you only have 50
percent. So here you can really make the same argument about
General elections, that voter preferences really don't tell
anything, because half the voters don't vote. ] don't “know
if I am making my point there.
Q. Okay. You said earlier that swing voters 1n Harris
County, particularly you said vote in a variety of ways.
Q. What was the basis for your information?
A. Dr. Murray's report stated that 1n several places.
Q. What about, was that the only basis for your concluding
that swing voters vote in a variety of wavs?
A. I have looked at elections and, yes, I think that when
you look at the Harris County elections, 1t 1s 1nteresting to
me that even though you see a sizeable chunk of voters voting
straight party tickets who are both Democratic and
Republican, you see wide variations in the ocutcomes of
elections on election day, as 1 think 1 testified
can go down to the valley like Dick Murray did, and you can
see the Republican candidates winning who 1s listed right
next to a Democratic candidate, and there 15s no, 1n a sense,
pattern, except possibly for 'B4 in the outcome of the
Taebhely—Lroas 21 %11] a
election.
6. Wher you had that Republican sweep.
A. Now, 1t seems to me that that 1s what I was referring
to, the swing votere came to swing —— why they call them
swing voters, I guess, they swing back and forth. And there
is no kind of consistent, they don't swing more to the left
or more to the right, they just sort of swing back and forth.
That 1s a bad analogy, 1 know.
QR. One more election I might have missed 1s a County
Criminal Court No. 4 election in 198s. That was Francis
Williams against James Anderson. Dich: 1 gust not receive
that, or did you not analyze that race?
A. General Election, 19867
CG. Yes, . County Criminal District Court No. 4.
A. 1 don’t have that on my list that lI received from the
attorneys as a contest which involved a minority. I have got
County Court, County Criminal Court 3 and County Criminal
Court 9.
Q. All right.
A. I don't have anything 1n between there.
Q. Have you read any reports or s report prepared by Dr.
Richard Murray entitled ‘Racially Polarized Voting 1n Harris
County', or any study by Dr. Murray that analyzed racial
polarized voting in Harris County?
A. 1 don't think so. He sent me, when this case began, he
un
~J
sent the plaintiffs, as 1 recall, a set of documents, and
that set of documents was also sent to the defendants. And
unless that report was in that set of documents, 1 Sr hbat iy
did not read it, unless it were published 1n a journal that
would be made available to the public 1n genersl.
Q. Of the reports, the Murray reports that you looked over
and that helped you form your conclusions, do you recall in
any of those Murray reports seeing a regression analysis that
attempted to analyze the existence of racial polarized voting
in Harris County?
A. No.
Q. If your statement is true, and 1 will accept 1t that
Blacks and Hispanics are primarily straight ticket capital
‘D*' Democratic voters in Harris County, then you would expect
the success rate of White and Black Democrats to be basically
the same, wouldn't you? In other words, if 1-told you thst
S2 percent of White Democrats who run in contested district
judge elections win and only 12.5 percent of Blacks who run
in contested district judge elections win?
A. We would, and I certainly would expect that if there
weren't swing voters.
G. And the swing voters go either way?
A. That's right.
Q. And that variety of ways over the course of eight years
would account for the almost 40 percent disparity 1n the
24
23
Taebel = Crosse «YT T31311
success rate of Democratic White candidates and Democratic
Black candidates?
A. I assume so.
Q. Mr. Hicks asked you, as he asked for all of the
counties, do Whites 1n Harris County vote sufficiently as a
bloc so as to defeat the preferred candidate of Black voters.
Ang you said, "Yes"; is thet correct? Or, oh, 1'm sorry,
You said, "No". You said they vote as a partisan bloc.
A. What 1 said is that in Harris County, you have an
extremely large number, extremely large blocs of voters who
vote Republican and who vote Democratic. What you have on
top of that is a relatively small set of voters who are swing
voters. And, you know, that 1s a, those we don't even
consider bloc voting because they swing. Bloc voters, as 1
said earlier, are defined as a consistent plan of behavior.
Swing voters by definition don't meet the definition of bloc
voting.
0. Have you looked at or analyzed or can you answer the
question as to whether Whites in Harris County, White voters,
whether they be White Republican voters ave with swing
voters or just White Republican bloc voters, vote
sufficiently as a bloc to defeat the preferred candidate of
Blacks when that candidate 1s Black? In other words, not
including White on White elections. When the candidate 1s
Black?
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A. Uh-huh.
G. Have you looked at whether or not Whites 1n Harris
County vote sufficiently as a bloc so as to defeat that
candidate”
A. Well, 1 will put it this way. l. don't want to repeat
myself, but there 1s a large Republican bloc of White voters
who vote for Republican candidates. There 1s a large bloc of
t=
. Democratic voters who vote for the Democratic candidate.
you are saying, well, does that bloc joining with another
group of White voters like the swing voters, it probably
does. But 1 don't consider that Dloc voting.
Q. I don't think that 1s what I was asking you. What I am
trying to get at 1s whether the answer that you gave holds as
consistently true when that candidate 1s a Black candidate.
Before we were just talking about the preferred candidate of
Blacks, which could be White or Black as long as they are
Democratic, according to you?
A. Right.
0. What about when they are Black Democrats?
A. As |] sald, I think there 1s some indication In election
results that Black Democrats get elected.
QR. Although you do admit you have not included all races
involving Black Democrats?
A. We tried to include it. We nave a lot more than Dr.
Engstrom does.
CO, Fr EI TT, ANID PIES STS SET TT
24
25
Taenel:.~ rose — 1
Q. You have half of them as being Hispanic on White
elections.
A. Well, that might be true.
Q. And finally, I think you answered this for all the other
counties, but 1 just want to be clear On Harris. Do Blacks
and Whites in Harris County vote differently?
A. Not Black Democrats. I mean not White Demccrats and
Black Democrats, they vote exactly the same.
G&G. Exactly the same”
A. Just about.
Q. All: right.
A. We see, again we see 1n Harris County, a very similar
pattern that we see in the other counties. If you take a
look, for example, at the first four election contests here,
you will see an amazing relationship, there is a very
consistent relationship, not amazing, in terms of the
consistency of how White Democrats vote.
@. Really, I am asking a more global question. I realize
that it is hard for you to put aside the partisan issue for a
minute, but I am going to ask you to, I am asking you about
White voters and Black voters. Do they vote differently, by
and large, in Harris County? I am not asking you the reason,
I am not asking you the party.
A. Sure. You know, I said earlier that you always have
racial polarized voting.
p
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Ww
24
2S
MS. IFILL: Thank you.
THE COURT: Dallas, Harris?
MR CLEMENTS: Your Honor, befo
W
n
| n
Cc
0
re igo
ouriattention to the
may: l-go 4c the, well, 1 can work from
CROSS EXAMINATION
BY MR, CLEMENTS:
QR. Dr. Tasbel, 1 would like to cally
drawing, lovely Rembrandt that we have
You will recall that the hypothetical s
Garrett posted was that the lower right
20 percent of a hypothetical Jjurisdicta
for purposes o overwhelmingly minority,
believe he hypothecated 100 percent Bla
on the blackboard.
ltuation the Mr.
portion represented
on which was
fsimplicity, il
savy. In Ck, let's
your work with Houston's numbers, did you happen to notice
that in Houston Blacks constitute 19.7
population, total population, so oddly
hypothetical situation 1s a very close
Houston but for the fact that there 1s
and that 1s exactly 100 percent Black,
congregated.
ital) if all we lo to Houston, we say,
the 20 percent Blacks in the lower right
percent of the
enough, this
approximation to
no area of Houston
they aren't quite that
However, assuming that this 1s something close
gkeat de lithe wace lof
quadrant, and all we
look at 1s the race of the BO percent in the rest of the
county, every time a Black candidate runs and loses, we have
polarized racial voting, don't we” I'm sorry, every time a
24
eH
X00 G3 FETT TTR RE EON ATI TA YAY TINA NO £1 Ta
Taebel —- Lroes — Clements i a
Black candidate runs and 1s supported by the Black community
and someone else runs who 1s supported by a majority of the
White community, you have polarized racial voting by Mr.
Engstrom's definition?
A. When Blacks and Whites vote differently for different
candidates, you have racial polarization, right.
Q. And every time the Black loses, then if that were all
'Gingles' was about, then you would have, 1f the Black lost
more than 50 percent of the time, then you would have proved
that Whites vote to defeat the Black minority community's
preferred choice more than 50 percent of the time, you could
go home?
A. Well, except that the language the Court uses, as 1
recall, 1s ‘usually’. i
Q@. Usually and consistently?
A. Right.
Q. Now, if that ie the simplistic universe, ang Mr. Garrett
sat down very rapidly when you seemed to admit Whites and
Blacks vote differently in these nine counties, Ms. Ifill
seemed to be just as happy when you admitted the same thing
again, if that was all there was to it, we wouldn't have been
here all week, would we? What you are telling the Court, as
I understand it, sir, is that when you superimpose another
line —- if I might go to the blackboard a moment —-- or let's
say two lines, since this is Harris County, you still have
Taebel - Cross - Clements B-271
®
1 your 20 percent here. If you put the Blacks, as they are 1n
ce Harris County, into their place in the Democratic column,
3 Republicans to the left, and in the middle the discretionary
4 a
8 THE COURT: The Republicans are never on the left.
6 By MR. CLEMENTS:
/] Q. Is what you are telling the Court that when the Blacks
8 vote for a democratic candidate, 1t 1s essentially without
g regard to the race of the candidate?
10 A. That's right.
11 Q. And when the Republicans vote to the extent of such that
12 the total Democrat and total Republican straight ticket vote,
i3 Republicans vote their straight ticket for the Republican
14 candidates, that is without regard to the race of the
15 candidate; right?
16 A. That's right.
17 RQ. And your numbers prove that Republicans will vote for a
18 Kenneth Hoyt, if they know in fact that he is one of the
19 candidates on the list, otherwise they are just voting
20 Republican, Republicans will vote for Ken Hoyt; right?”
21 A. ]1¥ mele the Republican candicate.
ee Q. That is one of the races you analyzed”
e3 A. No, I think that is one of the ones 1 did not analyze.
24 Q. No, the '8B4 race, Court of Appeals.
£3 A. Okay. i'm sorry. I thought we discussed that one.
eh
e3
Taehel ~ Crosse - Llements 5-272
0. 1 think Mes. Ifill wanted you to 100k at the 'B2 Primary,
and I was asking vou to look at the '84 General Election
running against Ms. Michael O'Conner.
A. Okay. Iwill look at it. What district court is thet?
3. That 1s the Court of Appeals. Court of Civil Appeals.
A. Districtescourt?
Q. No, l4th Court of [ivi] Appesls.
A. I need a computer. Well, go ahead. I will try and
answer your question.
Q. In your analysis of how Republicans vote for Black
Republican candidates, did you find that a majority of Whites
will vote for a Black Republican candidate?
A. I am almost positive I would.
Q. Did you ever find a single instance in Harris County in
which more than S50 percent of Whites voted for a, I'm sorry,
more than 50 percent of Whites voted for the Black Democratic
candidate?
A. I would have to go through the charts here.
Q. Okay.
A. More than 50 percent?
Q. More than 50 percent, 1 think your testimony was.
A. I douppt "it -— 1 doubt it.
Q. The White Democratic percentage from approximately 30 to
35 percent?
A. Right.
Taebel —- Cross - Clements S-273
1 Q. Rather consistently over time?
= A. Right. I think so.
3 Q. Okay.
4 A. That 1s the way 1t would appear to me.
5 Q. Now, did you find any evidence that the 93 percent
6 straight Democratic vote 1n the Black community was
7 distinguishing in any way between Black Democrats and White
8 Democrats?
SG A. No . It can’t,
10 Q. By definition?
11 A. By definition vou can't distinguish it.
12 Q. Just as the White Democratic straight ticket voters vote
13 for Whites and Blacks and Hispanic Democrats without any
14 distinction whatsoever?
IS A. That's correct.
16 0. Now, did you find any differential in the race of
17 support of various Black candidates, both those that won like
18 Carl Walker and Tom Routt, and those who lost?
19 A. Did I find any difference in the rate?
20 QR. Rates of support among Whites for those candidates.
21 A. 1 have not analyzed all of the rates of support. I can
ec do that.
e3 RQ. Well, the Black rate of support will be relatively
2&4 consistent for a Black Democratic candidate, wouldn't i1t?
es A. For a Democratic candidate, correct.
I=L
25
Taebel — Cross — Clemonts H-2
3. Up to around 98 percent?
A. Right.
0. The White rate of support will vary?
A. Right. I know that, you know, I can see that from the
data, that support will vary; right.
Q. And the reason that White support will vary 1s 1n that
complex of considerations that you refer to as basically the
other reasons than race or political party that the swing
voters or discretionary Judicial voters, will select one
candidate over another; right?
A. Well, that's right.
Qa. Now, among those is one you mentioned, 1ncumbency. You
haven't attempted to evaluate incumbency, have you”?
A. No. 1 haven't evaluated any other factors, as a matter
of fact.
RQ. Because essentially -—-
A. I was basically analyzing how one can realistically
describe the political process that exists in nine different
counties. My intent was not to find out the precise reason
why a candidate won or lost. My 1ntent was to describe the
overriding feature of partisan politice in nine courties.
think. if you try, if 1 tried to get involved in campaign
expenditures and incumbency, ratings by the Bar Association,
it would be an impossible task to do. And secondly, 1t 1s my
understanding that the Court doesn't really care about those
RT Or
n
24
25
Taebel ~Lross «— Dlemonts S=2 75
things. We don't really need to explain why 10 votes went
this way or that way. I think the only thing 1 can say about
the discretionary voters 1s that they vote for one or another
for some reason or other. Tha reason 1s not really
important to me. The fact 1s that they don't constitute &
kind, what lI would call a political bloc of voters. They are
important voters, but they are not a pclitical bloc because
they don't have any consistent voting pattern.
Q. If you strip away the party considerations and those
considerations that sway the discretionary Judicial voter to
vote for or against a particular candidate, 1sn't all that
you have 1s proportional representation? If all you know 1s
20 percent Blacks are present in the population, that 1s not
enough to elect a candidate without some White help, and all
vou know is that the Whites vote differently from the Blacks,
they are going, the Blacks are going to fail and the only
solution is proportional representation.
A. I don't have any problem with proportional
representation.
Q. The Voting Right Act does, doesn't 1t7?
A. Well, it might, but 1 am just saying 1 don't really have
any problems with proportional representation.
Q. You mentioned that you used Dr. Murray's demographic
data in Harris County.
A. Right.
24
23
Jasebel ~ Lroes —. [ lemente B=-c7&
Q. Why did you use that data”
A. Well, 1t was available. 14 Vis a Dig county, and to do
the kind of research that ] did on the other counties would
have taken me a full year. Dr. Murray 1s a well-known
political scientist who I have worked beforehand with, and as
soon as 1 got involved in the case 1 called him on the phone
and he said, "I have made the data available to Dr.
Engstrom," and he said, "1 have also made 1t available to the
plaintiffs", and that is when 1 called your office, 1 think,
and asked you if you would send me the data.
Q. The same data that went to the plaintiffs' expert?
A. That's right.
@. Did you do anything to corroborate whether or not that
data was accurate?
A. No .
Q. Do you know how it was prepared?
A. Well, it was prepared from the start with the 1980
census data. After that, I don't know how it was prepared.
Q. Do you know whether Dr. Murray himself or someone else
did it?
A. No.
Q. Do you know whether it is truly reliable or not?
A. Well, it is for me, because 1 know Dr. Murray. I mean,
1 have confidence in Dr. Murray, but aside -- so my
confidence in the data is based on my confidence in Dr.
Yaebe! —- Lross. — Ulemente 5-27
1 Murray.
2 Q. That 1s something you take on faith?
3 A. Well, yes and no. Dr. Murray iskia good political
4 scientist. 50. If i9:a little bit more —— he produces, it is
5 not just faith. It 1s seeing the results of his research, 1s
6 what I am saying.
7 MR. LLEMENTS: Good enough. Pass the witness.
8 THE COURT: Mr. Hicks? Okay. Mr. Godbey?
9 MR. BODBEY: I don't have very much, Judge. If -3
10 could approach the witness.
11 THE COURT: You may.
12 MR. - GODBEY: Judge, 1 want, Tirst, to just hook up
i3 some of Dr. Taebel's testimony in direct to the exhibit that
14 I believe 1t 1s based upon.
is CROSS EXAMINATION
16 BY MR. GODBEY:
17 Q. You will recall, Dr. Taebel, that Mr. Hicks asked you
18 some questions about the degree of straight ticket voting 1n
19 Dallas County?
20 A. Yes.
cl RQ. ] have placed in front of you a copy of Dallas County
ee defendant intervenors Exhibit 16.
23 A. Yes.
24 Q. Do you see that exhibit there?
es a Yes.
24
£35
Taebel - Cross - (Godbey 5-278
Q. Is that an exhibit that you have seen before?
A. Yes. I examined this exhibit probably two weeks age in
vour office.
Q. Have you reviewed the methodology that was used to
prepare that exhibit?
A. Yes.
Q. And based on your experience as a political scientist,
are you comfortable with the methodology that was used as a
reliable methodology that is typically used in your field?
A. It 1s a standard regression analysis.
Q. Okay. Is that also sometimes referred to as, or at
least the line drawing part of the regression referred to as
the Lee Squares Fi1t?
A. That is what, really, regression analysis 1s, Lee
Squares Fit; right.
Q. There was some testimony earlier reflecting the fact
that that exhibit was in, more or less, two halves, one half
being regression analysis and the other half being
homogeneous precinct analysis?
A. Yes.
Q. 1f vou can turn to the very ‘last page of the first half.
A. Yes.
Q. It has a summary of the results, I believe, for the
regression analysis part?
A. Yes.
aebel - Cross - Godbey 5-279
1 Q. Do you see that page”?
e A. Yes.
3 Ty, Could you explain the two lines that are there related
4 tc the notation LSQDEMT?
5 A. Well, that 1s Lee Squares abbreviation and 1t refers to
6 Democratic and the other variable 1n the equation is Black,
7 Blacks.
8 Q. All right.
2 A. Right. There are two variables. One 1s straight party
10 voting and one 1s percent of Blacks in each of the precincts.
11 Very similar to what we are doing 1n the voting analysis
i2 study here.
13 Q. That 1s a correlation between percentage Black residents
ae and straight ticket Democratic voting?
15 A. Right. Correlation 1s one of the products, one of the
16 statistical products of the analysis.
17 Q. Okay. Does that indicate a correlation coefficient?
18 A. Yes.
19 @. What is that?
20 A. Point nine one.
21] Q. And 1n your Judgement, 1s that a high enough correlation
co coefficient for those numbers to be reliable”?
23 A. Oh, sure.
24 Q. There 1s an entry there for intercept, do you see that?
eS A. Yes. Right.
RNA RTT 4 a CA a Fo pid fs TU pp Rs So Se SR ON et RA TN Soh fy
A J AE TAIT TE AI VEE $8) VEE [RT me eT her ne
Taebel - Cross - Godbey 5-280
Q. What 1s the numeric value of that?
A. Fifteen point nine three.
Q. What does that numeric value 1ndicate to you?
A. That means that 1s where the regression line 1ntercepts
the Y axis. That 1s what 1t means.
Q. Is that equivalent 1n layman's terms to saying 1n &
precinct, assuming the regression 1s accurate, 1n a precinct
with no Black residents you would see an incidence of
approximately 1&6 percent straight ticket, Democratic voting?
A. That's correct.
RQ. And did you determine from those numbers what you would
see at the 100 percent level?
A. Yes. The slope is 77, and so you would edd 77 to the 15
or 16 and come out with 93 percent.
Q. Does that indicate then in an entirely Black precinct --
A. That would be the Sstinate of straight party voters 1n
an all Black precinct, right.
Q. Can you explain what is shown on the two lines I believe
immediately below that with the indication of LSOREP?
A. Well, that 1s Republican vote by White. I guess by
other voters here, but that shows —-— do you want me to
continue?
Q. Well, could you tell us what the correlation coefficient
1s?
A. Yes, 1t 1s the same, .91.
LS AA rr pe AE ane ie el RARE I ta Fh
24
2S
TRC SEF HE NEF Se a Ny I Ar EO GN EF SE ES SAEs Re TN IT pee es, 5 To 7 y y
Taebel - Lrose —~- Godbey 5-281
Gd. And again, you would consider that reliable?
A. That's right.
QR. What is the intercept there?
A. Point nine nine, or really, one.
Q. And does that indicate in a completely non-White
precinct, you would see approximately one percent straight
ticket Republican voting?
A. Right. In 31] White —- 1'm sorry, Let me think. What
was your question, again?
@. Does that indicate what you would see 1n an entirely
non-White precinct?
A. In an entirely non-White precinct you would see
virtually no straight Republican Party voting.
Q. By virtually no, this indicates about one percent?
A. One percent, right.
@. And what would this show at the other extreme?
A. About 28 percent. Well, the slope is 28 percent. You
add that to the one percent, and come out with 28 percent.
Q. The slope is .277
A. Well, yes. But 1t should be, again, the decimal should
be moved two places to the right.
Q. There are, of course, White voters who are Democrats; 1s
that correct?
A. Oh, sure.
Q. And there are, of course, some Black voters who are
24
23
Taebel —- Cross - Godbey S~-e8c
Republicans; 1s that correct?
A. In Dallas”?
Q. Yes. As a general matter, there are some?
A. Yes.
Q. Would you agree with me that Black Democrats and White
Democrats together vote differently than Black Republicans
and White Republicans together?
A. Do Blacks a say that over again, 1f you would.
0. If you have a group composed of Black Democrats and
White Democrats?
A. Right.
Q. And compare that to a group composed of Black
Republicans and White Republicans, do you think those two
groups would vote differently? }
A. Certainly. They will vote, one group, in terms of
partisan elections, one group will vote for the Republican
candidate, or for the Republican Party, and the other group
would vote for the Democratic Party.
0. That 1s such an obvious statement that the question
itself is virtually meaningless; is that correct?
A. Well, ves.
Q. Okay. Is the question, 'Do Blacks vote differently than
Whites?' any more significant in your mind?
A. Not —-—- in partisan elections?
Q. Yes, sir.
FROG EFA TRIN E TINE LIS
=i
29
Taebel - Cross - Godbey 5-283
A. No .
G. In fact ~—
A. It doesn't mean that much to me.
Q. It would be an extraordinary coincidence bordering on
phenomenal for Blacks to vote exactly the same as Whites,
isn't that right?
A. That would be like somebody saying the sun doesn't rise.
Q. Mr. Garrett, I believe, asked you, and you didn't know
the answer to his question, you may not know the answer to
mine. He asked you, I believe, 1f any Black district court
Judicial candidate had ever won in Dallas County as a
Democrat since, I'm not sure he qualified 1t, since 1980.
A. 1 th?nk he did.
Q. I am curious as to the flip side of thet nether you
know the answer. Do you know 1f any Black Republican
Judicial candidate has ever lost in Dallas County since 19807
A. ] don't think so. But l don't, l'don't think so.
Q. I would like to pose for you a hypothetical. I would
like to focus your attention on four Black Judicial
candidates, Joan Winn, now Joan Winn White, H. Ron White,
Fred Tinsley and Jesse Oliver.
A. Okay.
Q. I don't believe you will need your data to answer this
one.
A. Okay. Good.
Taebel - (Cross - Godbey B=-284
1 QR. Do you recall those particular four candidates?
e A. Yes.
3 Q. Do you recall they ran as Democrats and lost?
a A. Yes.
9 Q. My hypothetical question for you, based on your research
6 relating to Dallas County, do you have an opinion as to
7 whether those four candidates would have won or have lost had
8 they run as Republicans, all other things being equsl?
Q A. They would have won.
10 MR. GODBEY: Pass the witness.
1} MR. HICKS: No further questions.
12 MR. GARRETT: Nothing further, Your Honor.
13 THE COURT: Fine. I know you are disappointed, but
14 you may step down. Thank you, sir. Call your next witness.
15 MR. HILKS: The only thing that the State has left,
16 and we will not offer to read them into the record for you,
17 are some deposition summaries. We have, we had some
18 deposition summaries that were introduced as part of the
iv exhibits. We have, 1 think, some deposition summaries that
20 are really part of the cross examination of some deposition
Pl summaries I think the plaintiffs put 1n to have you read.
22 THE COURT: All right. What are they, Just give me
23 the names.
24 MR. HICKS: Okay. May I make reference to the ones
eS that are in?
i >
EF ER ntl OS A EE ol IS
24
£5
Te Ta a
YHE COURT: You may.
MR. HICKS: Okay. I will note the counties so you
can keep track of what they are. I think 1 picked up the
wrong page. Mr. Todd mentioned these earlier, In the
evidence, summaries of depositions of Becky Beaver and
Fernando Rodriguez. Those are Exhibits D-30 and D-31. Those
have to do with Travis County. Also 1n evidence 1s
deposition summary of Judge Anthony Ferro. That has to do
with Bexar County, Exhibit D-32. The deposition summary of
Tom Hannah, which concerns Jefferson County 1s 1n as D-33.
THE COURT: I have to smile.
MR. HICKS: Okay. And also 1n evidence 1s
deposition summary of Lawrence Barber.
THE COURT: That really makes me almost laugh. He
is representing minorities in Ector County. He 1s a one-
eighth Chactaw Indian, which nobody ever knew until about
three weeks ago.
MR. HI[LKS: In his deposition?
THE LOURT: Right. Go ahead.
MR. HICKS: That is Exhibit D-34. I don't —— well,
are you going to —--
THE COURT: Don't hit one another.
MR. HICKS: Then we have narrative summaries we can
offer the Court for reading pleasure. Our cross examination
of Mr. Adam Serrata concerning Bexar County, the same for
r=Ls
25
Maria Mercado for Lubbock County and the same for John Paul
Davis concerning Jefferson County.
MS. FINKELSTEIN: Judge, yesterday we gave your
clerk copies of various deposition summaries also. She has
them there, they are file marked. l can list them for vou. aT
you would like.
THE COURT: List them for me, and make sure we have
them.
MG. FINKELSTEIN: Maria Mercado from Lubbock, John
Paul Davis from Jefferson County, Thomas Hanna from Jefferson
County, Anthony Ferro from Bexar County, Adam Serrata from
Bexar County. And then Lawrence Barber from Ector County.
THE COURT: Ms. 1fi117
MS. IFILL: Your Honor, plaintiff intervenors today
are going to submit to you three deposition summaries, one of
Senator Craig Washington, another of Alice Bonner, and
another of Matthew Plummer. And we don't want to read them,
we will just submit them into evidence.
THE COURT: = Fine.
MR. CLEMENTS: Your Honor, defendant intervenor
would submit a summary of excerpts of the same three
depositions. Defendant Wood Exhibit 49(a), Matthew Plummer.
We have already submitted Exhibit 49, which 1s an extract
from the deposition. Defendant Wood Exhibit 52(a), a summary
of excerpts from the deposition of Alice Bonner. The
extracts from the deposition are Defendant Wood Exhibit 52.
And we have Defendant Wood Exhibit 60, a summary of extracts
from, of excerpts from the deposition of Craig Washington.
And Defendant Wood Exhibit 60(a), which 1s the extract from
the deposition of Craig Washington. And 1n addition, we have
submitted a page of that. I think we submitted along with
plaintiff intervenor 's deposition of Fitch, Routt, on both
sides. Williams.
MSe "IFILL: Williams.
MR. CLEMENTS: I tender these.
MS. IF TLL: Just to go back. The depositions, or
the summaries of depositions were read into the record, we
also would like to give the Court written summaries of those
depositions, and those are the depositions of Manuel Leal,
Bonnie Fitch, Francis Williams and Thomas Routt. And we can
give them exhibit numbers 1f you want.
¥HE COURT: cs Don't. You don't have to do that. . Mr.
Rios?
MR. RING: We were going to call Mr. Ben Howell,
Your Honor, but considering your leanings toward him, we
decided not to call him.
THE COURT: He is busy handing down Judicial
opinions and couldn't get here.
MR. RIDS: I believe that 1s all we have. We rest,
Your Honor.
24
23
5-288
MR. CLOUTMAN: Your Honor, we have one small matter
for Dallas County, if I may.
THE COURT: All right.
MR. CLOUTMAN: I] have spoken to Mr. Godbey about
this matter and I think he may have objections. We want to
offer the Court a summary of three deposition not taken 1n
this case, taken in another matter that involved the
Republican, Dallas County Republican Judges 1n election day
activities that were the subject of some of my questions to
Mr. James. He seemed to have a different recollection than I
gid. I have the depositions here. I tender them to Mr.
Godbey and they are, the summary 1s very short, and as a
matter of fact it is so short that maybe we could read it in
about half a minute. However, it will be hearsay in this
case, but under Section or Rule BO3 24 of the Federal Rules
of Evidence, I think it is trustworthy and pertinent to the
issues spoken to by Mr. James. And rather than call the
witnesses in rebuttal, which would be very difficult to do at
this point, we would offer instead, a deposition summary of
these three judges, Judges Patrick Guillot, Judge Craig Enoch
and Judge Jack Hampton, taken in a matter styled, lsaac
Jackson and George Washington versus Connie Drake and others,
Civil Action No. 3821830F, filed in the United States
District Court, Northern District of Texas, Dallas Division,
and taken in the year 1983. All three of them were.
I ————
24
eS
THE COURT: Mr. Godbey?
MR. GODBEY: Mr. Clements 1s indeed correct that we
do object to 1t as hearsay. And 1f '1 could amplify on that
for just a moment. My concern 1s not so much any fear that
Judges Enoch or Hampton or Guillot were lying on deposition,
that 1s the least of my concerns here. My concern here 1s
that obviously Judge Entz was not involved in that
proceeding, and it had a different focus and different
concerns were ventilated, and I might add, Hughes & Luce was
not counsel for any of the parties in the proceeding. I was
unaware of these depositions, I think, until vesterday when I
was advised 1n general form that Mr. Cloutman would like to
introduce some additional testimony out of sworn testimony in
another matter. The concern I have is that we were not there
on behalf of Judge Entz to develop the issues that are
pertinent here in this case insofar as Mr. James' testimony.
I have had an opportunity to review these depositions
quickly. I understand there were even other depositions in
the same matter, the same matter from other witnesses. I
have had no chance to read those. I obviously had no chance
to pose the questions to the Judges and Justices Enoch,
Hampton and Guillot. And I think at this point, for this
material to come in at this late date is particularly unfair
to Judge Entz. These folks are not particularly hard to find
in Dallas County. Mr. Cloutman has known for some time,
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25
EE
5-890
since he was at least one of the parties that brought up the
issue of the sign posting 1ncident, that 1t would be an issue
in this case. There was ample time for him to notice the
deposition in a manner to give me and Judge Entz an
opportunity to elicit additional testimony from these
witnesses that might be pertinent. And for this information
from another case involving other parties with other sets of
counsel, other than Mr. Cloutman who was counsel 1n those
actions, coming in at this late date in this proceeding is
not only hearsay, I think it is highly unfair.
THE COURT: Mark them as an exhibit, Mr. Cloutman.
I am not going to read the depositions or the deposition
summaries. But in order, if this thing is appealed, they can
see what I kept out.
MR. CLOUTMAN: All right, Your Honor, I don't have
anything I want to mark, I want to read a short paragraph and
make an offer and I think I will make an offer of proof
instead.
THE COURT: That will be fine.
MR. GODBEY: For the Court's convenience, we have
some other specific portions. If we can have a collective
offer of proof of what would have come in for you to
consider.
THE COURT: Give them to my clerk. But I am not
going to read them. I don't think that has any relevance to
20
@)
| n 0
this. All right. Next?
MR. RIOS: Do you want to hear closing arguments,
Your Honor.
THE COURT s¥ Ng.
MR. HILKS: I never have heard, I guess the Harris
County and Dallas County plaintiff intervenors close. That
1s what I was waiting for.
MR. CLOUTMAN: Close.
MS. McDONALD: We close.
MR. HICKS: The State closes.
THE COURT: Thank ‘vou. 1¢t is 5:20. I believe you
will get to make the 6:05, Mr. Clements. You are in a hurry,
I can see that. I do appreciate the courtesies which you
have extended to the Court's staff and to the Court. You
took too long, but you did relatively well in getting the
matters presented. I commend you for getting your exhibits
formalized in a way that the Court could at least most of the
time find them. I thank you. I will endeavor to make a
decision on this case within a reasonable length of time. ]l
want you to know that —-- do you all have any additional
briefing you want? That's what I was afraid of. All..rignt.
Today 1s September the 22nd. Get it done by September 30th.
That gives you a week, it won't hurt you at all. If you have
any additional briefs, send a copy to the opposing side. 1f
you have a reply that you want to make you will be given
until October the 5th to make that reply. All right. Yes,
sir?
MR. HICKS: Are the dates you gave the dates they
are supposed to be here?
THE COURT: I don't care Af vou File them in Austin
or Dallas or Houston, if you will file them in the district
court there, Federal District Court, we do have fax machines
here and you can get them here the same day. Don't be
mailing them around. And I am tired of supporting the
Federal Express. Don't do 1t that way. File them in the
Courthouse, they can get them here. All right. Anything
else?
MR. CLOUTMAN: Your Honor, that one matter of the
substituted exhibit ir tha Jesse Oliver matter we have spoken
about earlier. I think what we are going to do 1s just give
it a new number and send it to the Court directly, if that is
all right.
THE COURT: That will be fine. ..All right. We will
stand in recess, then, and let me invite all counsel to come
through the door right here and you can see my lovely
chambers. You all have been here all week. 1f vou want to
know where I have been going off to, go on back here and 1
will shake your hand, hug your neck. Okay.
(End of proceeding.)
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25
COURT REPORTER'S CERTIFICATE
I, JIMMY R. SMITH, Official Court Reporter in and for
the United States District Court for the Western District of
Texas, do hereby certify that the within and foregoing is a
full, true, complete and correct transcript of the proceedings
had in the above entitled and numbered cause at the time and
place as shown herein, to the best of my knowledge, skill and
ability. It was typed under my supervision and direction.
4
TO CERTIFY WITNESS MY HAND, this the — day of
SEAS :. BiBi ee, 13 7.2.
FARM 4 /
}
¥ 7 , a
A 3 Los Po arcs
|Z SPN LIN TINA
gammy R. SMITH, Court Reporter
I certify that the transcript fees and format comply
with those prescribed by the Court and the Judicial Conference
Of the United States.
JIMMY R., SMITH, Court Reporter