MEXICAN AM. BAR ASS'N OF TEX. v. State of Tex.
| Decision Date | 26 December 1990 |
| Docket Number | No. MO-90-CA-171,A-90-CA-1018.,MO-90-CA-171 |
| Citation | 755 F. Supp. 735 |
| Parties | MEXICAN AMERICAN BAR ASSOCIATION OF TEXAS (MABA) (Statewide), et al., Plaintiffs, v. The STATE OF TEXAS, Defendant, and Faith Johnson, et al., Defendants-Intervenors. UNITED STATES of America, Plaintiff, v. STATE OF TEXAS, et al., Defendants. |
| Court | U.S. District Court — Western District of Texas |
Rolando L. Rios, San Antonio, Tex., William L. Garrett, Brenda Hull Thompson, Garrett, Thompson & Chang, Dallas, Tex., for plaintiffs.
Robert H. Mow, Jr., Bobby M. Rubarts, David C. Godbey, Hughes & Luce, Dallas, Tex., for intervenors-plaintiffs.
John R. Dunne, J. Gerald Hebert, Poli A. Marmolejos and Jennifer Cass, for U.S.
Renea Hicks, Javier P. Guajardo, Atty. Gen.'s Office, Austin, Tex., for defendant.
Paul C. Isham, Decker, Jones, McMackin, McClane, Hall & Bates, Ft. Worth, Tex.
Walter H. Mizell, Brown, Maroney, Rose, Barber & Dye, Austin, Tex.
John H. Coates, Brown Maroney & Oaks Hartline, Austin, Tex.
David R. Richards, Austin, Tex.
Before JERRY E. SMITH, Circuit Judge, LUCIUS DESHA BUNTON, III, Chief District Judge, and WALTER S. SMITH, Jr., District Judge.
In this consolidated case we sit as a special three-judge court pursuant to section 5 of the Voting Rights Act of 1965 (the "Act"), 42 U.S.C. § 1973c. The private plaintiffs in one action (No. MO-90-CA-171) and the United States in the other (No. A-90-CA-1018) ask us to enjoin the implementation, or continuing implementation, of certain alleged voting changes affecting the selection of state district judges in several designated counties in Texas. We conclude that as a matter of law the plaintiffs are entitled to no relief.
For the sake of simplicity, we consider the challenged judgeships in two groups: (1) the Travis County judgeships and (2) the judgeships in what we will term the "other challenged counties," which include the Texas counties of Dallas, Lubbock, Tarrant, and Victoria. Our basis for denying relief differs between the two groups, as their legal status is dissimilar. As to both groups, the plaintiffs challenge the continuing implementation of county-wide voting for multiple state district judge positions within each of the subject counties. They assert that the at-large election of state district judges is in violation of section 2 of the Voting Rights Act, 42 U.S.C. § 1973.
The United States Court of Appeals for the Fifth Circuit recently has held that section 2 does not apply to the election of judges. See League of United Latin American Citizens Council No. 4434 v. Clements, 914 F.2d 620, 622 (5th Cir.1990) (en banc) (overruling Chisom v. Edwards, 839 F.2d 1056 (5th Cir.), cert. denied, 488 U.S. 955, 109 S.Ct. 390, 102 L.Ed.2d 379 (1988)), petition for cert. filed sub nom. Houston Lawyers' Ass'n v. Mattox, 59 U.S. L.W. 3406 (U.S. Nov. 21, 1990) (No. 90-813). Based at least in part, if not entirely, upon its view that it is not bound by that decision (hereinafter "LULAC"), the Attorney General of the United States on November 5, 1990, interposed an objection to the implementation of new district judgeships in the other challenged counties. The objection was interposed pursuant to the Attorney General's conclusion that the State of Texas had not carried its burden, under section 5, of showing that the new judgeships would not violate section 2.
A few days earlier, on October 26, 1990, the private plaintiffs had filed the instant complaint in No. MO-90-CA-171. They assert that the new judgeships in the other challenged counties may not be implemented because, inter alia, they have not been precleared, allegedly as required by section 5, by either the Attorney General or the United States District Court for the District of Columbia.
Additionally, the private plaintiffs assert that two district judgeships in Travis County have not received preclearance as required. The private plaintiffs seek an injunction proscribing all further elections in Travis County and the other challenged counties until preclearance is obtained.
Following the Attorney General's interposition of an objection as to the other challenged counties on November 5, the United States filed the instant complaint in No. A-90-CA-1018, seeking to enjoin the implementation of the asserted voting changes in the other challenged counties. The United States and the Attorney General now contend, as well, that the Travis County judgeships were subject to preclearance requirements, were not precleared, and now should be submitted for preclearance.
We conclude that creation of the Travis County judgeships at issue here is not subject to the preclearance requirement of section 5. The judgeships in question are the 200th and 201st judicial district courts, which were added to Travis County by S.B. 515, which bill was signed by the governor on June 1, 1971, and became effective on August 20, 1971. The bill created the 200th judicial district court effective September 1, 1971, and the 201st effective January 1, 1973.
Section 5 was not applicable to Texas at that time, but the state became a covered jurisdiction on August 6, 1975, by operation of Pub.Law No. 94-73, the 1975 amendments to the Act. Section 204 of the enactment, 89 Stat. 402, added language to section 5 to require preclearance as to "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1972".
Thus, in order to be a covered change, an electoral change in Texas must be different from one in "force or effect" as of November 1, 1972. S.B. 515 was in effect long before that date and has remained unchanged thereafter. The effective date of the law, not the dates on which the respective judgeships were first filled through appointment or election, are determinative for purposes of section 5.
At least one three-judge voting rights court in Texas has so held. In Hereford Indep. School Dist. v. Bell, 454 F.Supp. 143, 145 (N.D.Tex.1978) (three-judge court), the court explained that preclearance was required for election procedures "enacted after November 1, 1972." Emphasis added. The same conclusion was suggested by the Supreme Court in Briscoe v. Bell, 432 U.S. 404, 413 n. 12, 97 S.Ct. 2428, 2433 n. 12, 53 L.Ed.2d 439 (1977), which noted that as to Texas, the 1975 amendments established November 1, 1972, as "the precise date at which a coverage determination becomes effective, thereby requiring, for example, preclearance of any laws affecting voting rights after that date." Emphasis added.
The applicable test was enunciated in City of Lockhart v. United States, 460 U.S. 125, 103 S.Ct. 998, 74 L.Ed.2d 863 (1983). The Court observed that in ascertaining whether a change has a proscribed effect, "the proper comparison is between the new system and the system actually in effect on November 1, 1972...." Id. at 132, 103 S.Ct. at 1003. Quoting Perkins v. Matthews, 400 U.S. 379, 394, 91 S.Ct. 431, 439, 27 L.Ed.2d 476 (1971), the Lockhart court noted that "`§ 5's reference to the procedure "in force or effect on November 1, 1972," must be taken to mean the procedure that would have been followed if the election had been held on that date.'"
Here, the "system actually in effect on November 1, 1972," included the existing 200th and 201st district courts. A judge had been gubernatorily appointed to the 200th court in August 1971, and primary elections were conducted in the spring of 1972. Although the general election was held within a few days after November 1, 1972, absentee balloting was well underway by that date. A judge was gubernatorily appointed to the 201st court in January 1973. The primary and general elections were conducted, respectively, in the spring and fall of 1974.
Under the reasoning in Perkins, if a hypothetical election had been conducted for the 200th and 201st courts on November 1, 1972, it would have been conducted under the system in place prior to that date, which included the existing two courts in question. Thus, we conclude that the date of enactment, rather than the dates of the first elections for the respective two courts, is the appropriate date by which to determine applicability of section 5.
We also observe that looking to the date of enactment is consistent with the posture taken by the Attorney General concerning the questioned judgeships in the other challenged counties. In his letter of November 5, 1990, the Attorney General interposed objection to the changes effected by the enactment of the bill creating those courts. The Attorney General cannot have it both ways: If enactment is the operative event for purposes of the judgeships in the other challenged counties, the same must be true for the Travis County judgeships, as well. Hence, we deny all relief as to the Travis County judgeships.
We conclude that creation of the questioned judgeships in the other challenged counties was precleared by operation of law, assuming arguendo that the creation of new judgeships such as those at issue is subject to section 5's preclearance requirement. The judgeships being challenged herein in the other challenged counties were created by S.B. 1379, which was signed by the governor on June 14, 1989, and established the judgeships effective September 1, 1989. The bill created fifteen judgeships, which are set forth in the margin.1
Section 5 permits a covered jurisdiction, such as Texas, to seek preclearance of electoral changes either by filing a declaratory judgment action in the United States District Court for the District of Columbia or by submitting the changes to the Attorney General. By the specific terms of section 5, a submitted change is deemed precleared as a matter of law if "the Attorney General has not interposed an objection within sixty days after such submission."
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Bullock v. Mississippi Employment Sec. Com'n
...Service Act. The preclearance provisions of 42 U.S.C. 1973c are not to be applied retroactively. Mexican Am. Bar Assoc. of Texas v. State of Texas, 755 F.Supp. 735, 737 (W.D.Tex.1990), Hereford Indep. Sch. Dist. v. Bell, 454 F.Supp. 143 (N.D.Tex.1978), Briscoe v. Bell, 432 U.S. 404, 413 n. ......