League of United Latin American Citizens Council No. 4434 v. Clements
| Citation | 914 F.2d 620 |
| Decision Date | 28 September 1990 |
| Docket Number | No. 90-8014,90-8014 |
| Parties | LEAGUE OF UNITED LATIN AMERICAN CITIZENS COUNCIL NO. 4434, Plaintiffs-Appellees, and Jesse Oliver, et al., Intervening Plaintiffs-Appellees, v. William P. CLEMENTS, etc., et al., Defendants, Jim MATTOX, et al., Defendants-Appellees, Appellants, v. Judge F. Harold ENTZ, etc., Judge Sharolyn Wood, etc., and George S. Bayoud, Jr., etc., Defendants-Appellants, and Tom Rickhoff, Susan D. Reed, John J. Specia, Jr., Sid L. Harle, Sharon Macrae and Michael P. Pedan, Bexar County, Texas State District Judges, Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Robert H. Mow, Jr., Bobby M. Rubarts, David C. Godbey, Jr., Hughes & Luce, Sidney Powell, Strasburger & Price, Dallas, Tex., for Entz.
J. Eugene Clements, Evelyn V. Keyes, Porter & Clements, Houston, Tex., for Wood.
John L. Hill, Jr., Andy Taylor, Liddell, Sapp, Zivley, Hill & Laboon, Houston, Tex., for Bayoud.
Seagal V. Wheatley, Donald R. Philbin, Jr., Oppenheimer, Rosenberg, Kelleher & Wheatley, Gerald H. Goldstein, Goldstein, Goldstein & Hilley, Joel H. Pullen, Kaufman, Becker, Pullen & Reibach, San Antonio, Tex., for Rickhoff et al.
R. James George, Jr., Graves, Dougherty, Hearon & Moody, John M. Harmon, Margaret H. Taylor, Austin, Tex., for Chapman, Stovall, Schraub, Cornyn, Hester, Paxson, Kirk & Walker.
Michael E. Tigar, Austin, Tex., for Bexar County, etc., et al.
Michael Ramsey, Ramsey & Tyson, Houston, Tex., for amicus 27 Incumbent Judges of Harris County.
Daniel M. Ogden, Washington Legal Foundation, Paul Strohl, Washington, D.C., for amicus curiae, Washington Legal Foundation, in support of defendant-intervenor Dallas County Judge F. Harold Entz.
Thomas F. Rugg, Chief, County Dist. Attys. Office, Beaumont, Tex., Mark H. Dettman, Midland, Tex., for amicus curiae, Jefferson County Dist. Judges.
Rolando L. Rios, San Antonio, Tex., for League of United Latin Am. Citizens & Christina Moreno.
Susan Finkelstein, San Antonio, Tex., for Christina Moreno.
Walter L. Irvin, Dallas, Tex., for amicus Brashear, et al. on behalf of appellees.
William L. Garrett, Garrett, Thompson & Chang, Dallas, Tex., for appellees.
Gabriell K. McDonald, Matthews & Branscomb, Austin, Tex., for Legislative Black Caucus and Houston Lawyers Assoc. Jim Mattox, Atty. Gen., Austin, Tex., pro se.
Renea Hicks, Javier Guajardo, Sp. Asst. Attys. Gen., Austin, Tex., for Mattox, et al. & Bayoud (in his official capacity only).
Sherrilyn A. Ifill, NAACP Legal Defense and Ed. Fund, Inc., New York City, N.Y., for Houston Lawyers Assoc.
Edward B. Cloutman, III, Mullinax, Wells, Baab & Cloutman, E. Brice Cunningham, Dallas, Tex., for Jesse Oliver, et al.
Robert G. Pugh, Robert G. Pugh, Jr., Shreveport, La., Kenneth C. DeJean, Baton Rouge, La., for amicus Roemer.
Cynthia Rougeou, Legal Div., Office of Sec. of State, Baton Rouge, La., for La. Secretary of State.
Michael Rubin, Rubin, Curry, Colvin & Joseph, Baton Rouge, La., for La. D. Judges Assoc.
Fournier J. Gale, III, Maynard, Cooper, Frierson, N. Birmingham, Ala., for amicus State of Alabama.
Ernest L. Johnson, Baton Rouge, La., for Janice Clark, et al.
Susan E. Russ, Spec. Asst. Atty. General, Montgomery, Ala., for State of Alabama, et al.
Appeal From the United States District Court for the Western District of Texas.
Before CLARK, Chief Judge, GEE, POLITZ, KING, JOHNSON, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER, and BARKSDALE, Circuit Judges. *
Today we must decide whether Congress, by amending Section 2 of the Voting Rights Act in 1982 to add a "results" test for dilution of minority voting strength, meant to subject the selection of state judges to the same test as that for representative political offices by incorporating language from the Supreme Court decision in White v. Regester. 1 For reasons to be given--and for the cardinal reason that judges need not be elected at all--we conclude that it did not.
In summary, these are that Congress was at great pains to phrase the new Section 2 in such language as to make clear that its results test applies to voting in elections of representatives only; that as of the amendment's time judicial offices had never been viewed by any court as representative ones; that characterizing the functions of the judicial office as representative ones is factually false--public opinion being irrelevant to the judge's role, and the judge's task being, as often as not, to disregard or even to defy that opinion, rather than to represent or carry it out; that, because of the highly intrusive nature of federal regulation of the means by which states select their own officials, legislation doing so should not be pushed beyond its clear language; and that, in view of these considerations, we should place such a construction on the 1982 enactment reluctantly and only if Congress has clearly mandated such a singular result.
We have carefully weighed the text and provenance of the statutory language against the opposing factors urged upon us as interpretive guides. Having done so, we conclude that the language of the 1982 amendment is clear and that it extends the Congressional non-Constitutional "results" test for vote dilution claims no further than the legislative and executive branches, leaving the underlying, Constitutional "intent" test in place as to all three. Especially telling, we conclude, is the circumstance that in borrowing language from the Court's White opinion Congress focused upon its reference to electing "legislators," broadening it so far, but only so far, as to electing "representatives," a Finally, and bearing in mind the well-settled principle of statutory construction that the enacting Legislator is presumed to have been aware of the judicial construction of existing law, 2 we note that, as of the time of the addition of Section 2(b) and of the explicit results test to the Voting Rights Act, every federal court which had considered the question had concluded that state judges were not "representatives" and did not fall within the definition of that term. Had Congress, then, meant to exclude votes in judicial elections from the ambit of its new results test, it could scarcely have done so more plainly than by adopting the term "representative" to describe that ambit.
term inclusive of elective members of the executive branch as well as of the legislature but not--as, say, state officials would have been--of members of the judiciary. That Congress did exactly as we have described is as undeniable as it is inexplicable on any basis other than that of a legislative purpose to include all elected legislative and executive state officials but to exclude elected judges.
The underlying facts of this appeal are carefully and correctly set out in the panel opinion, 902 F.2d 293 (5th Cir.1990); we recapitulate them here no further than is necessary to an understanding of what we write today.
Plaintiffs attacked the Texas laws providing for county-wide, at-large election of judges of the trial court of general jurisdiction, asserting that the imposition of a single-member system was necessary to prevent dilution of black and Hispanic voting strength. In a bench trial, the federal court rejected their constitutional arguments grounded in the Fourteenth and Fifteenth Amendments, finding a failure to prove the requisite discriminatory intent for relief under those provisions. The court determined, however, that the Texas law produced an unintended dilution of minority voting strength, a circumstance sufficient to call for relief under the Voting Rights Act, as amended in 1982 to incorporate a "results" test dispensing with the necessity of proof of discriminatory intent. In consequence, and after pausing to allow for possible remedial action by the state, the court enjoined further use of the at-large system, confected and imposed a system of single-member elections, and directed that these be held last Spring.
On appeal, we stayed the court's order, expedited the appeal, held a panel hearing on April 30, and handed down an opinion on May 11. Four days later, pursuant to a majority vote of active judges, we ordered rehearing of the appeal en banc; and we now render our opinion.
At the time of its decision, our panel was constrained by an earlier decision of the Circuit holding that Section 2 of the Act applied to elections held to fill positions on the Louisiana Supreme Court, a seven-member body. 3 Chisom v. Edwards, 839 F.2d 1056 (5th Cir.1988). Constraint was superfluous, however; for the panel embraced and agreed with the holding and reasoning of Chisom applying the Act to judicial elections. It went on, however, to conclude that although in its view judges were indeed "representatives of the people," and although as their representatives the judges' elections were controlled by Section 2(b) of the Act, the elections of trial judges were not subject to voter-strength dilution concerns because their offices are single-member ones; and there is no such thing as a "share" of a single-member office. LULAC v. Clements, 902 F.2d 293, 305 (5th Cir.1990). See Butts v. City of New York, 779 F.2d 141 (2d Cir.1985), cert. denied, 478 U.S. 1021, 106 S.Ct. 3335, 92 L.Ed.2d 740 (1986) () and United States v.
Dallas County, Ala., 850 F.2d 1433 (11th Cir.1988) (county probate judge). A vigorous dissent by Judge Johnson, author of the panel opinion in Chisom, disputed the panel majority's characterization of judges from multi-judge districts as holders of single-member offices. We need not resolve this disagreement within the panel, however, as we do not reach the issue.
Originally enacted in 1965 as an anti-test, anti-device provision to relieve blacks of state-law strictures imposed upon their Fifteenth Amendment voting...
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