Houston Lawyers' Association v. Attorney General of Texas Reply Brief for Petitioners

    Nos. 90-813, 90-974

In The

Supreme Court of ttje Mnttetr states
October Term , 1990

Houston Lawyers’ Association, et al.,
Petitioners,

v.

Attorney General of Texas, et al.,
Respondents.

League of United Latin American Citizens, et al.,
Petitioners,

v.

Attorney General of Texas, et al.,
Respondents.

On Writs of Certiorari to the United States 
Court of Appeals for the Fifth Circuit

REPLY BRIEF FOR PETITIONERS 
HOUSTON LAWYERS’ ASSOCIATION, ET AL.

Of Counsel:

Matthews & Branscomb 
A Professional Corporation

Julius LeVonne Chambers 
•Charles Stephen Ralston
Sherrilyn A. Iftll 

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

Gabrielle K. McDonald 
301 Congress Avenue 
Suite 2050 
Austin, Texas 78701 
(512) 320-5055

Attorneys for Petitioners
* Counsel of Record

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



Table of Contents

Table of Authorities . ...................... ... ...................... • • 1V

ARGUMENT ............................................        1

Introduction and Summary of A rgum ent................. 1

I. The State’s Nonracial Reasons for the Use 
of At-Large Elections Cannot Outweigh a 
Clear Showing of Racial Vote Dilution. . . 3

A. A Vote Dilution Analysis that
Requires Courts to Defer to the 
State’s Interest in Maintaining At- 
Large Judicial Election Schemes 
Reintroduces the Intent Test 
Expressly Rejected by Congress in 
Amending §2   3

B. The State’s Interest in Electing
Judicial Candidates At-Large is 
Entitled to No Greater Deference 
than Its Interest in Electing Non- 
Judicial Candidates At-Large . . .  13

C. The State’s Nondiscriminatory 
Reasons for Electing Judicial 
Candidates At-Large Cannot Cleanse 
the Proven Vote Dilution in this
C a se ...............................................  19

D. The District Court Properly Weighed
the State’s Interests in this Case . 22

E. A §2 Remedy is Directed at Curing
Dilution in the Electoral Process, Not 
Altering the Functions Performed by 
Judges............................................. 23



11

II. The State’s Principal Argument Rests on a
Fundamentally Erroneous Definition of a 
Single-Person Officer . . . . . . . . . . . .  28

III. Vote Dilution Can Be Measured in the
Absence of the One-Person, One-Vote 
Requirement . . . . . . . . . . . . . . . . .  31

IV. Congress Has Exercised its Enforcement
Power Under the 14 th and 15 th
Amendments to Outlaw Racial Vote Dilution
in All Elections  ......................  34

CONCLUSION  ........... ..  40



I l l

Table of Authorities
Cases: Page:

Anderson v. City of Bessemer City, N.C., 470 U.S. 564 
(1985) ..............................................................................  21

Butts v. City of New York, 779 F.2d 141 (2d Cir. 1985), 
cert, denied, 478 U.S. 1021 (1986)......................  29, 30

Clark v. Edwards, 725 F. Supp. 285 (M.D. La. 1988) 29

Georgia State Board of Elections v. Brooks, 111 S.Ct. 288 
(1990) ....................................................    27

Gingles v. Edmisten, 590 F.Supp. 345 (E.D.N.C. 1984), 
aff’d, 478 U.S. 30 (1986) . ...............................................7

Haith v. Martin, 618 F. Supp. 410 (E.D.N.C. 1985) aff’d 
477 U.S. 901 (1986)   29

Kendrick v. Walder, 527 F.2d. 44 (7th Cir. 1975) . . . .  9

Martin v. Haith, 477 U.S. 901 (1 9 8 6 )...........................  27

McDaniel v. Sanchez, 452 U.S. 130 (1981)................... 24

McGhee v. Granville County, 860 F.2d 110 (4th Cir. 
1988).................................................................................  19

Moore v. Leflore County Board of Election Com’rs, 502 
F.2d. 621 (5th Cir. 1974) ............................................. 11

Morris v. Board of Estimate, 489 U .S .__, 103 L. Ed. 2d.
717 (1989)   30

Nevett v. Sides, 533 F.2d 1361 (5th Cir. 1976) . . . .  11

Oregon v. Mitchell, 400 U.S. 112 (1970)...........  35, 36



IV

Page:

. . . 11
Perry v. City of Opelousas, 515 F.2d 639 
(5th Cir. 1 975 )..........................................

Robinson v. Commisioners Court, Anderson County, 505 
F.2d 674 (5th. Cir. 1974) ....................... ..  .................... 9

South Carolina v. Katzenbach, 383 U.S. 301 (1966) . . 35

Southern Christian Leadership Conference v. Siegelman, 714 
F. Supp. 511 (M.D. Ala. 1989.) .............. ..  28

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

Turner v. McKeithen, 490 F.2d 191 (5th Cir. 1973) . 11

Wallace v. House, 515 F.2d 619 (5th Cir. 1975) vacated on
other grounds, 425 U.S. 947 (1 9 7 6 ) ........... ..  11, 16

Westwego Citizens for Better Government v. City of 
Westwego, 872 F,2d 1201 (5th Cir. 1989) . . . . . . .  20

White v. Weiser, 412 U.S. 783 (1973) . . . . . . . . . .  25

Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) 12

Constitutional Provisions and Statutes:

Rule 52, Fed. R. Civ. Proc...................   21

United States Constitution, 14th Amendment . . 2, 34, 35

United States Constitution, 15th Amendment . . 2, 34, 35

Voting Rights Act of 1965, as amended, §2, 42 U.S.C. § 
1973 ................................................................   passim

Voting Rights Act of 1965, §14(c)(l), 42 U.S.C. § 
1973/(c)(l) .........................................................................38



V

Other Authorities: Page:

Boyd & Markman, "The 1982 Amendments to the Voting 
Rights Act: A Legislative History," 40 Wash, and Lee
L.Rev, 1347 (1 9 8 3 )......................   6

Hearings Before the Subcomm. on Civil and Constitutional 
Rights of the House Comm, on the Judiciary, 97th Cong., 
1st Sess. (1981) ................................................................ 36

Hearings on S.53, S.1761, S.1992, and H.R. 3112 Before 
the Subcomm. on the Constitution of the Sen. Comm, on the 
Judiciary, 97th Cong., 2d Sess. (1982).........................  36

House Report No. 97-227, 97th Cong.,
1st Sess. (1982) ........................................................ passim

Karlan, "Maps and Misreadings: The Role of Geographic 
Compactness in Racial Vote Dilution Litigation," 24 Harv. 
C.R.-C.L.L.Rev. 173 (1989)..........................................  33

R. Engstrom, D. Taebel & R. Cole, "Cumulative Voting as 
a Remedy for Minority Vote Dilution: The Case of
Alamogordo, New Mexico," The Journal of Law & 
Politics, Vo. V., No. 3 (Spring 1989) .........................  33

Senate Report No. 97-417, 97th Cong.,
2nd Sess. (1982)........................................................ passim



No. 90-813

In The

Supreme Court of tJje tfmteb
October Term , 1990

Houston Lawyers’ Association, et al.,
Petitioners,

v.

Attorney General of Texas, et al.,
Respondents.

On Writ of Certiorari to the United States 
Court of Appeals for the Fifth Circuit

REPLY BRIEF FOR PETITIONERS

ARGUMENT

Introduction and Summary o f Argument 

The argument raised in the United States’ brief advances 

a standard for assessing vote dilution claims under §2 that 

was expressly rejected by Congress. The rights of minority 

voters cannot be subordinated to the state’s interest in



2

continuing to use electoral schemes that exclude minority 

voters from meaningful participation in the electoral process.

For the following three reasons, none of the 

Respondents’ arguments advance supportable grounds upon 

which this Court can deny relief to the Petitioners. First, 

the so-called "single-person office" principle is inapplicable 

to the judicial offices challenged in this case. Second, the 

first prong of the tripartite vote dilution test set out in 

Thornburg v. Gingles, 478 U.S. 30 (1986), does not 

preclude the application of §2 to the election of judges. 

Third, Congress exercised its enforcement powers under the 

14th and 15th Amendments to cover state judicial elections 

under §2.



3

I. The State’s Nonracial Reasons for the Use of At- 
Large Elections Cannot Outweigh a Clear Showing 
of Racial Vote Dilution.

A. A Vote Dilution Analysis that Requires Courts to 
Defer to the State’s Interest in Maintaining At- 
Large Judicial Election Schemes Reintroduces 
the Intent Test Expressly Rejected by Congress in 
Amending §2

Although the United States agrees with the Petitioners 

that §2 covers the election of trial judges, it presents a new 

standard for assessing vote dilution claims involving the 

election of judges under the Act. The United States argues 

that a state’s "strong, nondiscriminatory reasons for at-large 

judicial elections . . . can spell the difference between a 

lawful and unlawful electoral scheme."1 U.S. HLA Brief at 

17. In essence, the United States argues that legitimate state 

reasons for using a challenged election scheme may

‘Although the only question with regard to the state’s interests 
properly before this Court is that raised by Judge Higginbotham and the 
Respondents -- namely, whether the state’s interests may pretermit the 
application of §2 to the election of judges -  the United States’ argument 
is sufficiently troubling to merit discussion here. Judge Higginbotham’s 
argument was discussed in our opening brief. See HLA Petitioners’ Brief 
at 24-49.



4

constitute an affirmative defense to proof of racial vote 

dilution.

This analysis radically departs from established 

standards for determining vote dilution under §2. No court 

ever has afforded controlling weight to the state’s interests 

in a vote dilution case. Indeed, to afford such weight to the 

state’s interests defeats the very design of §2’s results test 

as contemplated by Congress and as interpreted by this 

Court, and re-imports into the vote dilution analysis the 

intent inquiry expressly rejected by Congress in amending 

the Act in 1982.

The United States argues that a state’s interest in 

maintaining a challenged election scheme is entitled to 

"deference" except when "the plaintiffs can prove that the 

adoption or maintenance of an at-large system, whenever it 

occurred, was motivated by racial discrimination." U.S. 

HI A  Brief at 23 n.14. The practical effect of this standard 

is to make all vote dilution claims turn on the plaintiff’s 

ability to prove the illegitimacy of the state’s interests.



5

Plaintiffs will prevail only when the state’s asserted interests 

are, in fact, a pretext for intentional discrimination. 

Congress expressly rejected placing this burden upon 

plaintiffs.

The "totality of the circumstances" test was specifically 

designed to avoid an analysis of the rationale behind the use 

of a particular electoral structure — even if that rationale was 

nondiscriminatory. Thus, Congress explicitly instructed that 

"the specific intent of this [§2] amendment is that the 

plaintiffs may choose to establish discriminatory results 

without proving any kind of discriminatory purpose." 

Senate Report No. 97-417, 97th Cong., 2nd Sess. (1982) at 

28 (emphasis added)( hereinafter "S.Rep. a t__").

Nor did Congress give states the right to assert 

nondiscriminatory purposes as an affirmative defense to a 

vote dilution claim. In fact, Congress specifically refused to 

endorse the test advanced by the United States, which would 

permit states to assert the legitimacy of their electoral 

schemes to rebut the plaintiffs proof of vote dilution. See



6

Additional Views of Senator Robert Dole,2 S. Rep. at 195 

(rejecting suggestion that "defendants be permitted to rebut 

a showing of discriminatory results by a showing of some 

nondiscriminatory purpose behind the challenged voting 

practice or structure")(emphasis added). Instead, Congress 

decided that whether a challenged electoral practice was 

adopted or maintained for legitimate reasons is of little or no 

probative value to a §2 results inquiry. S. Rep. at 27 

(courts need make no determination "about the motivations 

which lay behind" the adoption or maintenance of a proposed 

electoral practice).

The United States, however, now advocates a radical 

departure from Congress’ directive. It contends that "to the 

extent that there are legitimate and strong state interests in 

the at-large election of trial or appellate judges, that is

2Senator Dole is recognized as the architect of §2(b) of the amended 
Act. See Boyd & Markman, ''The 1982 Amendments to the Voting 
Rights Act: A Legislative History," 40 Wash, and Lee L.Rev. 1347, 
1414-1415 (1983).



7

powerful evidence that minority electoral failure3 is not the 

product of a ‘built-in bias’ against minorities but stems, 

instead, from other, neutral factors." U.S. HLA Brief at 23.

The United States’ statement regarding "built-in bias" 

can be interpreted several ways, all of which are erroneous. 

To the extent that the United States uses "built-in bias" to re­

import a motivational analysis into a §2 inquiry, the 

statement is at odds with the amended statute. Under 

amended §2’s results test, it is immaterial whether plaintiffs 

can prove that there is "built-in bias" in the challenged 

electoral scheme. Thus, even if a state adduces evidence 

that its policy is "well-established historically, ha[s] 

legitimate functional purposes and was in its origins 

completely without racial implications," this evidence does 

not change a plaintiff’s showing of vote dilution. Gingles v. 

Edmisten, 590 F.Supp. 345 (E.D.N.C. 1984), aff’d, 478

Petitioners have proved more than just minority electoral failure. 
Based on the "totality of the circumstances" Petitioners proved, and the 
district court found, that African American voters in Harris County "do 
not have an equal opportunity to participate in the electoral process and 
elect candidates of their choice" in district judge elections. Pet. App. at 
290a-291a.



8

U.S. 30 (1986). Quite to the contrary, persistent minority 

electoral failure as a result of a confluence of "neutral 

factors" is the very essence of a §2 claim.

If the United States’ reference to "built-in bias" reflects 

its view that a state’s strong, legitimate interest in a 

particular electoral practice may cleanse a finding of 

discrimination, the statement is plainly wrong. The strength 

of the state’s interest in a particular election scheme tells the 

court nothing about whether the system effectively precludes 

minorities from meaningful electoral participation.

No language in the statute supports the view that a 

state’s bona fide reasons for using a particular election 

structure cleanses that system of discriminatory results. 

Section 2(b)’s terms are specific. They delineate a clear 

standard for claims brought under the results test. That 

standard is further clarified by the Senate Report, in which 

Congress identifies the factors most relevant to a dilution 

inquiry. S. Rep. at 28-29. The test, as set out in the Senate 

Report, "provide[s] ample guidance to federal courts"



9

reviewing §2 claims. S. Rep. at 16. The United States may 

not ignore this guidance and engraft onto the "results" test 

its own, contrary standard for assessing claims under §2.

There is no case law supporting the United States’ 

argument. No court ever has refused to find liability 

because the strength or legitimacy of the state’s interests 

outweighed the plaintiff’s claims. In fact, in the cases relied 

on by Congress in developing the results test, lower courts 

expressly refused to immunize dilutive election schemes from 

challenge simply because they "satisfy some legitimate 

governmental goals." Robinson v. Commisioners Court, 

Anderson County, 505 F.2d 674, 680 (5th. Cir. 1974). In 

the relevant case law, the fundamental meaning of "built-in 

bias" is that despite legitimate state interests, the system 

operates to discriminate against minorities. See e.g., 

Kendrick v. Walder, 527 F.2d. 44, 49 (7th Cir. 1975).

Most disturbing, however, is the United States’ 

contention that a state’s reasons for using a challenged 

electoral structure can justify or excuse that system’s racially



10

discriminatory effect. See U.S. HLA Brief at 17 (referring 

to legitimate "justification" for electing judges under present 

system); U.S. HLA Brief at 28 (arguing that although some 

state interests may be "insufficient to justify a racially 

dilutive electoral process," other interests might meet that 

standard). The United States’ admission that, in its view, 

racially dilutive electoral processes may be permissible if 

they serve strong state interests is critically revealing. It 

demonstrates the United States’ willingness to subordinate 

the rights of the intended beneficiaries of the Voting Rights 

Act, even when dilution is proven, to the interests of the 

state.

In several of the 23 racial dilution cases that the United 

States mentions as having been relied on by Congress in 

amending §2, jurisdictions offered their legitimate, nonracial 

reasons for adopting and maintaining an at-large election 

structure. U.S. HLA Brief at 21-22. Nothwithstanding the 

legitimate reasons offered for the use of at-large elections in 

those cases, Congress decided that "even a consistently



11

applied practice premised on a racially neutral policy would 

not negate a plaintiff’s showing through other factors that the 

challenged practice denies minorities fair access to the 

process." S.Rep. at 29 n. 117. Instead, Congress instructed 

that "an aggregate of factors should be considered" in 

assessing vote dilution claims.4 House Report No. 97-227, 

97th Cong., 1st Sess. (1982) at 30 (hereinafter "House Rep.

a t__"). In enumerating these factors in both the Senate and

House Reports, Congress never put forth the state’s interest 

as an affirmative defense to the use of a discriminatory 

election scheme. See e.g., House Rep. at 30; S. Rep. at 28-

,)This conclusion was consistent with the lower court cases reviewed 
by Congress. In those cases the district courts recognized that 
"[dilution, as with so many complex factual determinations turns on an 
aggregation of the circumstances." Turner v. McKeithen, 490 F.2d 191 
(5th Cir. 1973). See also Nevett v. Sides, 533 F.2d 1361 (5th Cir. 1976) 
(remanding for proper assessment of aggregate of factors); Wallace v. 
House, 515 F.2d 619, 623 (5th Cir. 1975) vacated on other grounds, 425 
U.S. 947 (1976). Thus, although the state’s interests were weighed, they 
were considered along with all of the other factors relevant to the 
existence of vote dilution, and were afforded no greater weight than other 
factors.

At the remedy stage, courts sought to accomodate the state’s 
interests to the extent practicable in fashioning or approving a remedy to 
cure the proven dilution. See e.g., Moore v. Leflore County Board of 
Election Com’rs, 502 F.2d. 621 (5th Cir. 1974) (affirming the district 
court’s rejection of a remedial plan that diluted African American voting 
strength and undermined legitimate state interests in equality of road 
mileage and land area); Perry v. City o f Opelousas, 515 F.2d 639, 642 
(5th Cir. 1975).



12

29. See also Brief of HLA Petitioners at 45-49.

To the contrary, when it amended §2, Congress 

modified the standards set out in Zimmer v. McKeithen, 485 

F.2d 1297 (5th Cir. 1973), for assessing vote dilution claims 

and explicitly eliminated, as a primary factor in a vote 

dilution analysis, the state’s nondiscriminatory reasons for 

using a challenged electoral scheme. Congress decided 

instead that the state’s rationale is relevant only as an 

optional factor in the plaintiffs’ proof of discrimination.5 

Compare Zimmer, 485 F.2d at 1305, and S. Rep. at 28-29. 

Congress identified 7 other factors that were more probative

3Congress identified the tenuousness of the state’s policy underlying 
the use of the challenged electoral practice as an "additional factor that 
in some cases has had probative value as part o f the plaintiffs’ evidence" 
to establish vote dilution. S. Rep. at 29.

Under Congress’ results test, the state’s interests are irrelevant to 
proving the existence of vote dilution unless the plaintiffs attempt to 
prove "tenuousness" as part of their case in chief. When plaintiffs, as 
in this case, invite the inquiry, then tenousness is merely one factual 
question as part of the totality of the circumstances that may be found 
in favor of the plaintiffs or the defendants. The finding that a state 
electoral policy is not tenuous, however, is not an affirmative defense to 
proven vote dilution based on an aggregate of the other, more probative, 
factors identified by Congress.

Congress similarly decided that the "unresponsiveness'' of elected 
officials is not a primary factor which need be proven by plaintiffs in a 
vote dilution case. Compare Zimmer, 485 F.2d at 1305 (listing 
unresponsiveness of elected officials prominently among factors to be 
considered) and S. Rep. at 29, supra.



13

of a §2 claim than articulated state interests. The United 

States simply ignores Congress’ instructions and develops its 

own test for determining vote dilution under §2.

B. The State’s Interest in Electing Judicial 
Candidates At-Large is Entitled to No Greater 
Deference than Its Interest in Electing Non- 
Judicial Candidates At-Large

The United States argues that because the "role of 

judges differs from those [sic] of legislative or executive 

officials" in that "judges are expected to be fair and 

impartial," the State’s interest in using at-large elections may 

be "compelling," so as to defeat a claim of vote dilution. 

U.S. HLA Brief at 22 and 24. This argument is premised on 

the wholly insupportable and insulting premise that the 

election by minority voters of judicial candidates of their 

choice will destroy the impartiality judiciary.

According to the United States, an election scheme in 

which a white majority controls the election of judges is 

"accountable", while a system in which an African American



14

majority elects some judges is "partial."6 Therefore, 

although the United States characterizes the current electoral 

system in Harris County, which prevents minority voters 

from meaningfully participating in the election of the 

county’s 59 district judges, as one in which "all the people 

who may generally appear before a particular judge have a 

voice in the election" of that fair and impartial judge,7 U.S.

6Defendant-intervenor Wood is perhaps most candid and unabashed 
in articulating the concern that underlies the Respondents’, Judge 
Higginbotham’s and the United States’ argument. In a revealing 
mischaracterization of the the petitioners’ claims, Judge Wood asserts that 
the petitioners in Harris County seek to elect "black judges . . . 
accountable to black voters while other judges would be accountable to 
non-black voters." Brief of Respondent-Intervenor Sharolyn Wood at
43 (hereinafter "Wood Brief a t__"). Judge Wood even declares that the
African American voters in Harris County advocate "a separate but equal 
black judiciary serving the black community.” Id. (emphasis added). 
What petitioners in fact seek as voters, not litigants, is participation in the 
selection of a county judiciary electorally accountable to all members of 
the electorate.

7The United States’ position is ironic in that it, like that of the 
Respondents and Judge Higginbotham, fails to express similar concern, 
that minority voters and litigants under the present, purportedly "fair", 
system have virtually no opportunity to appear before judicial candidates 
of their choice. Judge Higginbotham, who attempts to calculate the 
likelihood of African American litigants in Harris County appearing 
before a judge elected from a "minority-dominated" subdistrict under a 
hypothetical 59 electoral sub-district plan, Pet. App. at 107a, never 
attempts to calculate the likelihood of African American litigants 
appearing before African American judges for whom they voted under 
the current system.

Of course, pointing out this irony does not address the legal flaw 
in the United States’ argument: the right at stake is not the right of 
people who appear before a judge, but the right of African American 
voters to equal opportunity with white voters to participate in the election



15

HLA Brief at 23, it predicts that an alternative electoral 

system in which minority voters have a meaningful 

opportunity to participate in the election of some of the 

county’s judges will result in a "partial" judiciary controlled 

by a "relatively discrete segment of the jurisdiction."8 Id.

These erroneous assumptions taint the United States’, 

the defendants’ and Judge Higginbotham’s analysis, and lead 

them all to the same conclusion -  that the election of judges 

must be protected from vote dilution claims by minority 

voters. The irrational assumption that African American 

judges would not uphold the judicial oath of impartiality 

because they were elected by voters of their same race, 

however, does not warrant the creation of special rules and 

exceptions for determining claims involving judicial elections

of any government official.

’Under the United States’ definition, African American voters are a 
"special interest group," U.S. HLA Brief at 25, while white voters are 
the neutral public.



16

under the Voting Rights Act.9

Moreover, the reasons offered by Texas for electing 

judges countywide are not unique to the election of judges. 

The state’s rationale is, as the United States’ concedes, "the 

reason usually given in support of at-large elections for 

municipal offices [namely] that at-large representatives will 

be free from possible ward parochialism and will keep the 

interests of the entire city in mind as they discharge their 

duties."10 U.S. HLA Brief at 22, quoting Wallace v. House,

Respondents make this argument even though alternative remedies, 
alleged by the HLA Petitioners in their complaint in intervention, could 
alleviate the unlawful dilution proved without the use of sub-districts. 
See HLA Petitioners’ Brief at 57-60.

Although HLA Petitioners take issue with the State Respondents’ 
contention that even the use of limited or cumulative voting would 
require sub-districting in Harris County, Brief of Respondents at 29, that 
argument would be most appropriately addressed at the remedial stage of 
this litigation.

‘“There is no evidence in the record indicating that Texas adopted or 
maintained the current method of electing judges to serve the state’s 
interest in a "fair and impartial judiciary." To the contrary, all of the 
evidence in the record points to the conclusion that Texas chose to elect 
its judges in the same maimer that it elects candidates for other elected 
offices simply because that was its custom and not to serve any particular 
or ''compelling" interest related to the function of judges.

Indeed, the testimony of Respondent-Intervenor Judge Harold Entz, 
undermines the notion that at-large elections are necessary to preserve 
impartiality of judges. TR. at 4-90 (testifying that he knows of no 
instances in which the impartiality of Texas’ Justices of the Peace, who 
are elected from sub-districts, has been questioned).



17

515 F.2d 619, 633 (5th Cir. 1975), vacated on other 

grounds, 425 U.S. 947 (1976). See also U.S. HLA Brief at 

25. These reasons are entitled to no greater weight simply 

because the elected office at issue is judicial. Indeed 

because judges are bound by an oath of impartiality no 

matter how they are elected, the "ward parochialism" 

concern is even less compelling in the context of judicial 

elections than it is in the context of legislative contests.

The United States’ position is particularly insupportable 

because the HLA Petitioners did not allege a violation based 

on at-large elections only. Petitioners specifically challenged 

the exclusionary features of the at-large election scheme. 

JA. at 16a ("[district judges in Texas are elected in an 

exclusionary at-large, numbered place system"). The 

exclusionary features of the current election scheme, 

including the numbered post and staggered election 

requirements, permit the same racially homogeneous 51% of 

the electorate to choose 100% of the county’s judges year



18

after year.11 Because voting is highly racially polarized in 

Harris County, the 18% African American electoral minority 

can rarely, if ever, elect candidates of its choice, under this 

system.

The State in this case has not raised any legitimate 

interest in maintaining the exclusionary features of its at- 

large election system, nor has the State explained how these 

features are related to maintaining a "fair and impartial" 

judiciary. Neither the State nor Judge Higginbotham has 

explained why HLA Petitioners’ proposed alternative at- 

large election systems, which would lower the threshold of 

exlusion for minority voters, would not accomodate the 

State’s purported interest in maintaining the county wide 

electoral feature. Indeed, the State Respondents concede that 

the HLA, in proposing cumulative and limited voting as 

alternative electoral systems, have suggested a "creative

uThe Respondents’ contention that petitioners have advanced a per 
se challenge to the at-large system is completely undercut by the fact that 
the HLA Petitioners alleged that a non-exclusionary at-large system could 
cure the dilutive nature of the current system. J.A. at 20a.



19

[and] useful" solution to curing the proven dilution.12 Brief 

of State Respondents at 29.

C. The State’s Nondiscriminatory Reasons for 
Electing Judicial Candidates At-Large 
Cannot Cleanse the Proven Vote Dilution 
in this Case

To follow the argument advanced by the United States, 

courts would have to ignore the fact that African American 

voters cannot effectively participate in district judge 

elections, simply because the current electoral scheme 

purports to serve the state’s interest.13 Congress’ decision to

12The appropriateness of a remedy is case-specific. Therefore, 
contrary to the State Respondents’ contention, the fact that a lower court 
refused to uphold the use of limited voting in a particular case is 
irrelevant to the propriety of that remedy in the case at hand. Brief of 
State Respondents at 29, citing McGhee v. Granville County, 860 F.2d 
110 (4th Cir. 1988). In McGhee, in fact, the plaintiffs limited their 
challenge to the "at-large” feature of elections for the County Board of 
Commissioners. 860 F.2d at 113. Here, HLA petitioners specifically 
challenged the exclusionary features of the at-large system and alleged 
that alternative at-large remedies could cure the proven violation in 
Harris County.

’’Although Texas has expressed an interest in a fair and impartial 
judiciary, the integrity of a state’s judiciary is undermined when one 
racial group in the community cannot participate in its selection. See, 
Brief of Chisom Petitioners at 61. It would seem logical to assume that 
Texas’ purported interest in a fair and impartial judiciary would be 
served by the inclusion of minority voters in the electoral process.



20

end voting discrimination "comprehensively and finally," in 

amending the Act will not tolerate such judicial indifference 

to minority political and electoral exclusion. S. Rep. at 5.

Moreover, in this case the State’s articulated reasons 

for maintaining county wide judicial elections do not negate 

the overwhelming evidence that racial vote dilution exists in 

district judge elections in Texas.

The facts in Harris County, as found by the district 

court, point indisputably to the existence of vote dilution. In 

17 contested district judge general elections in Harris County 

from 1980-1988, only 2 African Americans won.14 Pet.

wRespondent-intervenor Wood simply ignores the findings of the 
district court and reasserts the facts offered by her expert. Many of these 
facts were rejected by the district court because they were of little 
probative value. For instance, Judge Wood asserts that the plaintiffs’ 
expert "ignored the three 1978 district judge elections in which blacks ran 
— and won — contested races against a white candidate." Wood Brief at 
8. In fact, all three African American candidates ran uncontested in the 
general election that year, although they had opposition in the primary.

Judge Wood correctly states, however, that "[t]wo of those black 
judges have run -- and won -- every four years since 1978. Only one of 
those four races was contested; therefore, Petitioners counted only that 
race." Id. Consistent with the racially polarized voting analyses approved 
by this Court and lower courts, Petitioners indeed focused only on 
contested races, specifically those in which African American candidates 
faced white opponents. . See e.g., Gingles, 478 U.S. at 52-61. See 
also Westwego Citizens for Better Government v. City ofWestwego, 872 
F.2d 1201 (5th Cir. 1989). Judge Wood’s conclusions, on the other 
hand, are based on uncontested elections, elections involving only white 
candidates, and elections involving Hispanic candidates, although no



21

App. at 279a. African American and white candidates, even 

within the same political party, are elected at grossly 

disparate rates. Thus, 52% of white Democratic judicial 

candidates were elected between 1980 and 1988, while only 

12.5% of African American Democratic candidates were 

elected.15 TR. at 3-134-135. This fact, along with the 

history of discrimination in the County touching upon the

claims on behalf of Hispanic voters in Harris County were advanced by 
any of the plaintiffs. Therefore, Respondent-Intervenor Wood’s inflated 
figures which purport to show the success rate for African American 
candidates injudicial elections in Harris County was not accepted by the 
district court, and instead the court found the statistical evidence 
presented by the HLA "legally competent and highly probative." Pet. 
App. at 296a-297a.

As to the one contested general election referred to by Judge Wood 
in which the African American candidate won against a white incumbent, 
the results of that election only further support the plaintiffs’ claims. In 
1982 Judge Thomas Routt, the African American incumbent, won the 
general election by a bare majority over a virtual unknown. TR. at 3- 
162-163; TR. at 3-329. Judge Routt won with only 51.3 % of the vote, 
and testified that keeping voters ignorant of his ethnicity assisted his slim 
victory. TR. at 3-206-207.

The facts found by the district court are subject to the clearly 
erroneous standard of Rule 52. Anderson v. City of Bessemer City, 
N.C., 470 U.S. 564, 573 (1985). Furthermore, in §2 cases this Court 
has directed reviewing courts to defer to the local district judges’s 
"particular familiarity with the indigenous political reality" of the State. 
Gingles, 478 U.S. at 79. Should this case be remanded to the Court of 
Appeals for review of the merits, the panel would be bound by these 
standards.

15Respondent-intervenor Wood dismisses this 40% disparity in 
candidate success rates between African Americans and whites within the 
Democratic Party as a natural result of "the vagaries of politics.” Wood 
Brief at 44.



22

right of African Americans to vote, the depressed 

socioeconomic condition of the county’s African American 

population, the inability of African American incumbent 

district judges to be elected, and the existence of extreme 

racial polarization in voting, support a finding of vote 

dilution.

D. The District Court Properly Weighed the State’s 
Interests in this Case

The United States erroneously states that the district 

court "did not consider whether the State has a strong" 

interest in using at-large elections for judges. U.S. HLA 

Brief at 24. Contrary to the United States’ contention, the 

State’s interests were presented to, and carefully assessed by, 

the district court. Indeed 3 1/2 pages of the district court’s 

decision are devoted to a factual analysis of the interests 

asserted by the State, each discussed in turn. Pet. App. at



23

281a - 284a.16 The court ultimately found that these interests 

were "not compelling." Id. at 283a. In particular, the 

district court found that the State’s interests could be 

accomodated using one of several possible remedies.17 Id. 

at 284a.

E. A §2 Remedy is Directed at Curing Dilution in 
the Electoral Process, Not Altering the Functions 
Performed by Judges

Texas’ repeated assertion that applying §2 to elected 

judges will result in federal courts taking over from the

16The district court described the state’s asserted interests as: "(1)
judges elected from smaller districts would be more susceptible to undue 
influence by organized crime; (2) changes in the current system would 
result in costly administrative changes for District Clerk’s offices; and (3) 
the system of specialized courts in some counties would disenfranchise 
all voters’ right to elect judges with jurisdiction over some matters." 
Pet. App. at 281a - 282a.

‘’Contrary to Respondents’ assertions, weighing the state’s interests 
at the remedy phase does not "retreat'' from Gingles. Brief of State 
Respondents at 44. The first prong of Gingles, in which minority voters 
show that they are sufficiently numerous and geographically compact to 
constitute a majority in a single-member district, does not ask plaintiffs 
to propose a remedy before they prove liability. The first prong of 
Gingles, as discussed infra at pp. 31-33, is a demonstration of the causal 
relationship between the challenged electoral structure and the dilution of 
minority voting strength.



24

states the function and administration of the judiciary, fatally 

mistates the proper scope of the remedy inquiry and the role 

of the state’s interests in the remedial phase of the litigation. 

See Brief of State Defendants at 19-22.

First, §2 protects the rights of voters, not litigants. As 

a result, a §2 remedy is directed at changing the electoral 

process.18 It does not, as the State Respondents suggest, 

"intrude into state judicial functions" or purport to change 

the way judges decide cases. Id. at 19-22.

Second, the State underestimates its own role under §2 

in remedying the proven vote dilution. At the remedy phase 

the State, not the federal court, is accorded the first 

opportunity to propose an election system that affords 

minorities an equal opportunity to participate in the election 

of judges. See McDaniel v. Sanchez, 452 U.S. 130, 150

18For this reason, the Respondents’ argument — that the relevant 
standard for measuring minority electoral success in judicial contests is 
the pool of eligible minority lawyers — fails. See State Respondents’ 
Brief at 28; Woods Brief at 44-45. The Voting Rights Act does not 
protect the rights of minority lawyers to be elected as judges. It protects 
the rights of minority voters to an equal opportunity to elect the 
candidates of their choice.



25

n.30 (1981). So long as the dilution is completely remedied, 

the State may use its discretion in fashioning a plan to 

accomodate its bona fide interests. Indeed, so long as it 

cures the proven violation, the federal court must defer to 

the State’s proferred plan. White v. Weiser, 412 U.S. 783, 

797 (1973). Texas’ exaggerated claims of intrusion by the 

federal court into the State’s judicial system are not a 

necessary result of applying §2 to judicial elections.

In this case, in accordance with established remedial 

principles, the district court consistently expressed its 

preference for a State-created remedial plan, J.A. at 159a; 

Pet. App. at 303a. The court entered an interim order only 

after the Texas legislature failed to take action during its 

Special Session to create a remedial plan for district judge 

elections. J.A. at 159a-161a. The district court 

subsequently entered an order for an interim remedial plan 

to be used for the then upcoming 1990 elections only. Id. at 

162a. The sub-district elections required in that plan 

mirrored the sub-district plan agreed upon by the State



26

defendants and the plaintiffs in an earlier settlement 

agreement.19 Id. The proceedings in this case demonstrate 

that the State, therefore, has the opportunity to act as the 

principal architect of a remedial plan for the election of 

judges, should it choose to exercise its power.20 The State 

is not, as the Texas Respondents suggest, a powerless entity 

that sits on the sidelines as the federal court restructures its 

judicial electoral system, unless it chooses to play such a 

passive role.

Nor will the application of amended §2 to the state 

judiciary affect the ability of the states to change to an 

appointive system for electing judges, as Texas asserts.

19In addition, the district court’s plan abolished partisan elections. 
Plaintiffs never challenged the partisan nature of district judge elections 
in the challenged counties.

20As discussed in our opening brief, the State is free to propose 
alternative remedies that remove the exclusionary features of the current 
electoral scheme, such as cumulative or limited voting. The existence 
of alternative remedies underscores the fallacy of Judge Higginbotham’s 
and the Respondents’ premature and incomplete remedy analysis.

Nor is consideration of these alternative remedies precluded because 
"Congress never debated” their use. Brief of State Respondents at 31. 
At the remedy phase of §2 litigation "courts should exercise [their] 
traditional equitable powers to fashion relief so that it completely 
remedies the prior dilution." S. Rep. at 31. Within these parameters, 
courts may consider any remedies proposed by the parties.



27

Brief of State Respondents at 30. As a matter of law, even 

under the Respondents’ reading of the statute, plaintiffs could 

challenge a State’s change from an elective to an appointive 

system under a §2 intent analysis. House Report at 18. If 

they were to proceed under a results test, however, plaintiffs 

would be required, as in any §2 claim, to prove that the shift 

from an elective to an appointive system actually violated §2 

of the Act. Even in the absence of §2, however, such a 

change in Texas would be covered by §5, and would require 

preclearance from the Justice Department. This court has 

consistently affirmed §5’s application to the election of 

judges. Georgia State Board o f Elections v. Brooks, 111 

S.Ct. 288 (1990); Martin v. Haith, A ll U.S. 901 (1986).



28

II. The State’s Principal Argument Rests on a 
Fundamentally Erroneous Definition of a 
Single-Person Officer

In our opening brief, Petitioners demonstrated that §2 

unquestionably applies to single person offices. See HLA 

Pettioners’ Brief at 35-36. Further, Petitioners showed that 

even if the single person office analysis may be useful in 

examining some electoral mechanisms, it clearly is 

inapplicable to this case, in which 59 judges are elected from 

one district. Id., at 36-37.

Consistent with §2’s focus on the structure of the 

electoral system, the only court to address squarely the issue 

of single member offices has held that the term has a clear 

and unequivocal meaning that has nothing to do with the 

function of the challenged office. Southern Christian 

Leadership Conference v. Siegelman, 714 F. Supp. 511, 518 

n.19 (M.D. Ala. 1989.)21 Furthermore, even courts faced

2lThe Siegelman court stated that "the true hallmark of a single- 
member office is that only one position is being filled for an entire 
geographic area, and the jurisdiction can therefore be divided no smaller. 
While mayors and sheriffs do indeed ‘hold single-person offices . . . 
they do so because there is only one such position in the entire 
geographic area in which they run for election. . . . What is important



29

with judicial electoral structures in which several judges are 

elected from the same district, repeatedly have held that 

these structures are multimember. See Haith v. Martin, 618 

F. Supp. 410 (E.D.N.C. 1985) aff’d A ll U.S. 901 (1986); 

Clark v. Edwards, 725 F. Supp. 285 (M.D. La. 1988).

The single person office principle is a descriptive, not 

an analytic device that has relevance, if at all,22 when a 

challenged mechanism has only one office holder in the 

entire jurisdiction. In fact, the holding of Butts v. City o f 

New York, 779 F.2d 141 (2d Cir. 1985), cert, denied, 478 

U.S. 1021 (1986), so heavily relied on by the State is 

limited, by its express terms, to offices in which there is one 

officeholder per jurisdiction.

is how many positions there are in the voting jurisdiction. It is 
irrelevant, in ascertaining the potential existence of vote-dilution, that 
these officials happen to exercise the full authority of their offices alone."

22See, Brief on Petition for Writ of Certiorari of United States as 
Amicus Curiae in Whitfield v. Clinton, No. 90-383 (cert, denied) 
(questioning the viability of Butts on the ground that "the [Voting Rights 
Act] language makes no exception for majority vote requirements, either 
for single member offices or other types of elected positions. ") See also, 
Brief of Lawyers’ Committee for Civil Rights Under Law as Amicus 
Curiae in H.L.A. v. Attorney General of Texas, at 26 and n.22.



30

Contrary to the State’s assertion, nothing in Butts 

authorizes an inquiry into the challenged officeholder’s 

decisionmaking role.23 The fact that Texas trial judges 

perform certain functions alone cannot insulate these 

positions from §2 scrutiny. As Amicus the Lawyers’ 

Committee clearly argues in its brief to this Court, Texas’ 

application of a so-called solo decision maker theory to the 

challenged 59-member body is nothing more than a policy 

judgment that trial judges should not be elected from 

subdistricts. Such policy questions are never dispositive of 

Section 2’s applicability and are clearly inappropriate at the 

liability phase of the proceedings.

“in fact, examination of the functions of the challenged offices in 
Butts reveals that all of the positions involved collegial decisionmakers.
See, e.g., Morris v. Board o f Estimate, 489 U .S .__, 103 L. Ed. 2d. 717
(1989). Moreover, the challenged mechanism in Butts was a runoff 
primary law, not the at-large structure of the district. Thus the entire 
weight of the State’s invented "solo decisionmaker exception" rests on 
Second Circuit dictum about an issue not before that court.



31

Id . Vote Dilution Can Be Measured in the
Absence of the One-Person, One-Vote
Requirement

The State of Texas argues that vote dilution cannot be 

measured under §2 injudicial election cases because the first 

prong of the tripartite Gingles test, requiring minority voters 

to prove that they are sufficiently numerous and 

geographically compact to constitute a majority in a single­

member district assumes the applicability of the one-person, 

one-vote rule. Brief of State Respondents at 27. In the 

absence of the one-person, one vote rule, the State argues, 

there is no articulable standard for measuring "undiluted" 

minority voting strength. Id. at 27, quoting Gingles, 478 

U.S. at 88 (J. O’Connor, concurring).

Texas overstates the significance of the illustrative 

single-member district discussed in Gingles. In that case, 

plaintiffs presented illustrative maps to demonstrate that 

majority African American single-member districts could be 

created to give minority voters an opportunity to elect



32

candidates of their choice to the North Carolina legislature. 

This Court approved that demonstrative model and noted that 

"the single-member district is generally the appropriate 

standard against which to measure minority group potential 

to elect because it is the smallest political unit from which 

representatives are elected." Gingles, 478 U.S. at 50 n. 17 

(emphasis added).

In Harris County, an unusually large election district in 

both physical size and population, plaintiffs quite easily 

could rely on districts used throughout the state to elect 

district judges as a "measure" to create illustrative districts 

in which minority voting strength would not be diluted. In 

other cases, plaintiffs may use other guides to measure 

minority voting strength. For example, using sub-districts 

to illustrate "undiluted minority voting strength," plaintiffs 

may draw sub-districts based on the average electoral unit 

used by the state to elect similar officers. For instance, in 

Texas, district judge districts range from populations of 

20,000 to over 2 million. Many judicial districts have



33

populations under 50,00c.24 See U.S. Brief of United States 

at 26 n.19. Thus, petitioners in this case, demonstrated that 

African American voters in Harris County could constitute 

a majority in at least thirteen single-member districts with 

populations of approximately 40,000 each, a size well within 

the population variances tolerated by state policy.

Plaintiffs may also demonstrate, by mathematically 

calculating the electoral threshold of exclusion, that minority 

voters possess the "potential to elect" candidates of their 

choice under a limited or cumulative voting scheme.25 In 

this case, where Petitioners challenge particular exclusionary 

features of the at-large system, such a demonstration would 

also constitute proof of the causal nexus between the current 

electoral scheme and the impairment of minority voters’

24In fact, 29 state district judges are elected from districts of less than 
30,000 persons. Brief Amicus Curiae of Mexican-American Legislative 
Caucus, et al., filed in LULAC v. Mattox, Fifth Circuit No. 90-8014, at 
12.

25See e.g. , Karlan, "Maps and Misreadings: The Role of Geographic 
Compactness in Racial Vote Dilution Litigation," 24 Harv. C.R.- 
C.L.L.Rev. 173, 223-236 (1989); R. Engstrom, D. Taebel & R. Cole, 
"Cumulative Voting as a Remedy for Minority Vote Dilution: The Case 
of Alamogordo, New Mexico," The Journal of Law & Politics, Vo. V., 
No. 3 (Spring 1989). See discussion in HLA Petitioners’ Brief at 57-60.



34

ability to elect candidates their of choice.

IV. Congress Has Exercised its Enforcement Power 
Under the 14th and 15th Amendments to Outlaw 
Racial Vote Dilution in All Elections

The State of Texas posits as the central question in this 

case, whether Congress use its enforcement authority under 

§ 5 of the Fourteenth Amendment or § 2 of the Fifteenth 

Amendment to outlaw unintentional racial vote dilution in 

elected state judicial systems." State Respondents’ Brief at 

12. The answer to this basic question is, yes.

According to the State of Texas, Congress could not 

have exercised its enforcement powers to outlaw racial 

discrimination in judicial elections unless it clearly and 

specifically stated that it intended to do so, id. at 12-17, and 

could not have exercised that power over judicial elections 

in the absence of specific fact-finding regarding racial 

discrimination in judicial elections. Id. at 17-19.



35

This Court specifically has held that "Congress has full 

remedial powers to effectuate the constitutional prohibition 

against racial discrimination in voting." South Carolina v. 

Katzenbach, 383 U.S. 301, 326 (1966). In Oregon v. 

Mitchell, 400 U.S. 112 (1970), the Supreme Court upheld 

Congress’ ban on literacy tests "even though there were no 

findings of nationwide discrimination in voting, let alone 

findings that literacy tests had been used to discriminate 

against minorities in every jurisdiction in the country." S. 

Rep. at 42. Therefore, Congress may use its Fourteenth 

and Fifteenth Amendment powers to "enact legislation whose 

reach includes [jurisdictions] without a proven history of 

discrimination." S.Rep. at 42.

Just as Congress did not need to document the 

discriminatory use of literacy tests in every jurisdiction in 

the country to justify the 1970 amendments to the Voting 

Rights Act, neither is Congress required to document racial 

discrimination in the election of judges, to make §2 

applicable to the elected judiciary. Indeed, unlike the



36

prohibition upheld in Oregon, §2 is not a blanket prohibition 

against the use of a particular electoral scheme or practice. 

Minority voters must prove the existence of vote dilution in 

the particular election scheme used by a jurisdiction under 

§2. Under the totality of the circumstances, judicial election 

schemes are each reviewed on a case by case basis.

Moreover, facts related to minority state court judges 

were explicitly included in the data relied upon by Congress 

in amending §2. See e.g. House Report at 7-9; Hearings 

Before the Subcomm. on Civil and Constitutional Rights of 

the House Comm, on the Judiciary, 97th Cong., 1st Sess. 

(1981) at 38, 193, 239, 280, 503, 574, 804, 937, 1182, 

1188, 1515, 1528, 1535, 1745, 1839, 1647; Hearings on 

S.53, S.1761, S.1992, and H.R. 3112 Before the Subcomm. 

on the Constitution of the Sen. Comm, on the Judiciary, 

97th Cong., 2d Sess. (1982) at 208-09, 669, 748, 788, 789. 

Contrary to the State Respondents’ claim that there is only 

a "meager collection of references" to the election of judges, 

Brief of State Respondents at 25, the legislative history of



37

the amended Act contains numerous references in the 

hearings26 to discrimination in judicial elections and the 

importance of increased minority participation in the state 

elected judiciary. These references, exhaustively cited and 

discussed in the Amicus Brief of the Lawyers’ Committee 

for Civil Rights Under the Law, et al., at 14-19, critically 

undermine the Respondents’ argument.

Most importantly, Congress was satisfied that the need 

for amended §2 had been "amply demonstrated." House 

Report at 31. The House and Senate Report, as well as the 

volumes of testimony in the legislative history attest to 

Congress’ "deliberation" in amending §2 to serve as "the 

major statutory prohibition of all voting rights 

discrimination." S. Rep. at 30 (emphasis added). This 

statement of purpose expresses Congress clear intention to 

cover racial discrimination in all elections, including those 

for state judges.

26The House and Senate hearings held in 1981 and 1982 represent 
Congress’ fact-finding in amending the Act.



38

In light of Congress’ repeated insistence that amended 

§2 of the Act, covers all elections, see e.g. language of 

§2(a) and § 14(c)(1), it is incumbent upon the Respondents to 

demonstrate Congress’ clear intention to exclude judicial 

elections from the Act in 1982. The only offer of proof 

made by the defendants and the Fifth Circuit in this regard 

is the use of the word "representatives" in §2(b) of the Act. 

For the reasons incorporated by reference in our opening 

brief, the use of the word "representatives" in §2(b) of the 

Act does not warrant the exclusion of elected judges from 

the scope of the amended Act. See Chlsom Brief at 41-42.

Congress’ reasons for amending the Act are clear. 

They are expressly set out at page 2 of the Senate Report in 

a section appropriately titled "Purpose." None of those 

reasons relate to the exclusion of elected judges from 

coverage under §2 of the Act. Congress’ only purpose with 

regard to §2 was "to amend the language . . .  in order to 

clearly establish the standards intended by Congress for 

proving a violation of that section." S. Rep. at 2. Even the



39

Fifth Circuit agrees that the Act, prior to amendment in 

1982, covered judicial elections, see Pet. App. at 26a-28a. 

Congress’ stated purposes in amending the Act does not 

mention excluding electing judges from §2, therefore, the 

defendants cannot justifiably argue that Congress either 

purposefully or inadvertently excluded judges from the scope 

of amended §2.



40

CONCLUSION

For the reasons stated above, this Court should reverse 

the decision below and remand the case for determination of 

a proper remedy.

Respectfully submitted,

Of Counsel:
M atthews & Branscomb 
A Professional Corporation

Julius LeVonne Chambers 
^Charles Stephen Ralston 
Sherrilyn A. Ifill 

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

Gabrielle K. M cDonald 
301 Congress Avenue 
Suite 2050 
Austin, Texas 78701 
(512) 320-5055 

Attorneys for Petitioners
* Counsel o f Record