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Courting Inequality The Road to Judicial Redistricting BY BREIT CAMPBELL IT SOUNDS APOCRYPHAL, but San Antonio attorney George Korbel swears it’s true. A candidate for judge in a major Texas city lost his first election, and decided to run again the next time around with one difference. The first time. he put his picture on his campaign brochure; the second time, he didn’t and won the race. Without the visual cue on the campaign literature, white voters didn’t realize that the candidate’s name White didn’t reflect his race, which was black. The incident reveals a grave injustice in urban Texas’s halls of justice. In Dallas County, blacks make up over 18 percent of the population, Hispanics almost 10 percent. But only one of the district judges in the county is Hispanic; two are black. There are 37 district judgeships. In Harris County: population 20 percent black, 15 percent Hispanic; 59 state district judges, three Hispanics, three blacks five percent each. This is justice in Texas: 375 district judges, seven black, 35 Hispanic, a combined proportion of 11.2 percent in a state where these minorities number a third of the population as of 1980 and will constitute a majority in thirty years. Most Texans are more directly affected by the justice system than by any other branch of government. And as advocates for social change, frustrated by the short-sighted, budget-strapped Legislature and the closeminded Reaganized federal judiciary, turn to state courts to litigate social change, the state judiciary will only assume increasing importance. \(Ask legislators who are back in Austin to devise a new school finance plan to replace the one thrown out by a Travis County disYet the bench in Texas fails to reflect the state’s ethnic diversity. That’s why two federal judges last year invalidated much of the system by which Texas elects its state judges. But even though Governor Clements has added judicial election reform to the special session call, legislators, preoccupied with school finance, seem prepared to ignore the issue until backed into a corner by the U.S. Supreme Court, resulting in another last-minute, crisis-driven flurry of reform. But sooner or later, the legislature must come to grips with the truth: Texas’s way of choosing judges is unjust to a large number of Texans. Two lawsuits filed in federal district courts have brought on the state’s latest crisis. The first, Rangel vs. Mattox , was decided last July by Judge Filemon Vela of Texas’s Southern District, and struck down the system of electing appellate judges to the Thirteenth State Court of Appeals, headquartered in Corpus Christi. While Vela’s decision immediately applies to judges elected in the 20 southeast Texas counties in that court’s jurisdiction, similar suits involving the other appellate districts are likely to be brought if Judge Vela’s decision stands up on appeal. The second suit, LULAC v. Matto.v, decided three months later by Judge Lucius Bunton of the Western District, affects 172 state district state’s most populous counties. Both Rangel and LULAC cases declared that the use of atlarge judicial districts in those areas illegally dilutes the voting strength of minority residents, violating Section 2 of the federal Voting Rights Act. Both opinions require the state to replace the existing at-large system with one that allows minority voters an equal opportunity to elect their judges. Both cases were appealed to the Fifth U.S. Circuit Court of Appeals, which stayed both Vela’s and Bunton’s orders, pending appellate review. If the original judgments are upheld, these cases could drastically alter the way most Texans choose much of the judicial branch of government. The two lawsuits were filed to correct an injustice that minority voters understand best: no matter how many minority citizens live in a voting district, even a narrow white majority can deny them the judges they want. Corpus Christi’s 13th Court is a good ex4mple. “Cameron and Hidalgo counties [both in the 13th Court’s jurisdiction] probably have the highest concentration of MexicanAmerican voters in the state,” said David Richards, who represented the plaintiffs in the Rangel case. There are six judges on that tribunal. In the twenty-county voting district, the number of Spanish-surnamed Texans of voting age just about equals. the number of non-Hispanic voters. So, because Mexican-American voters generally vote for Spanish-surnamed candidates, you would expect the 13th Court to have around three judges with Spanish surnames. In fact, there’s one. There have never been more than two at a time, according to Richards. “The political history is such that no Spanish-surnamed candidate has ever beaten a white candidate in a contested race [for the Court of Appeals] down there,” said Richards, an Austin attorney. And even though the population in the Hispanic-dominated areas south of Corpus Christi almost equals that of the rest of the district, almost all the judges have come from Corpus and points north. Why? Because all six judges are voted on by everyone in the twenty-county area. If most of the white voters vote only for white candidates, then they elect 100 percent of the judges, instead of the 50 percent or so that their proportion of the population entitles them to. This at-large system means that the large Hispanic minority \(actually a majority elect any of the candidates they want. Their votes, then, count less than white votes. The same pattern holds in the district courts. “Historically in Texas, the wishes of the minority voters regarding election of judges has been consistently overwhelmed and defeated by contrary white voters,” said LULAC’s attorney William Garrett of Dallas. “As a result, there are very few black or Hispanic judges on the bench. Even worse, those who did manage to get appointed Mark White appointed several generally [were] defeated when they ran for election.” And the story is the same across the state. “We have racially polarized voting in Texas,” concluded Korbel, a Texas Rural Legal Aid lawyer who worked for the plailntiffs in the Range! case. The 1965 Voting Rights Act was enacted to prevent situations in which one person’s vote carried less weight than another’s. “The state, once having undertaken to elect judges, must, under the [Voting Rights] Act do it in a way that isn’t unfair to minorities,” said Korbel. But whether it provides any legal as opposed to legislative remedy for this state of affairs depends on how the federal courts answer, essentially, two questions. Were Judges Bunton and Vela correct when they determined that the Texas at-large system of judicial elections in urban areas didn’t meet the Act’s requirements? That’s a factual question, but one that the appellate courts won’t even get to unless they first answer affirmatively a legal question: does the Voting Rights Act even apply to Texas judicial elections? The Voting Rights Act was passed a quarter-century ago, and White v. Regester, the case that struck down the at-large House districts in San Antonio and Dallas, was decided by the U.S. Supreme Court in 1973. THE TEXAS OBSERVER 15