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Judges Protect Their. Own IIIHE REAGAN-BUSH era’s hostility to II minority voting rights lives on at the 5th Circuit U.S. Court of Appeals, which on August 23 by a 9-4 majority blocked a settlement to a voting rights lawsuit that would have allowed urban minorities to elect their own judges. Judge Patrick Higginbotham of Dallas did his best to dismantle the Voting Rights Act and protect the status quo on Texas judicial benches in his 142-page majority opinion that found “the evidence of any dilution of minority voting power is marginal at best.” This despite the fact that only 17 of 174 district judges were black or Hispanic in the nine urban counties in question \(and five of those minority judges were in Bexar County, whose Only five of Dallas County’s 37 state district judges are of a minority, although 41 percent of the county is minority. In Harris County, only five of 59 judges are African Americans or Hispanic, although 42 percent of the population is minority. All five black judicial candidates on the Harris County ballot in November 1992 were defeated. But those numbers did not daunt Higginbotham and his eight confederates on the court, who ascribed the phenomenon to good old partisan voting and the lack of qualified minority candidates rather than bloc voting by the white majority that has rejected minority candidates who have come forward. “There is no disparity between the number of minority judges and the number of minorities eligible to serve,” Higginbotham wrote. “Rather, the only disparity is between the minority population and minorities eligible to serve as judges.” In other words, minorities are not entitled to elect judges until they furnish more lawyers. Judge Edith Jones of Houston, writing a concurring opinion for five of the Republican appointees, proposed to further undermine the Voting Rights Act, arguing that “coalition redistricting” where African-American and Hispanic voters together claim their votes are diluted is not permitted under the act. Judge Carolyn King of Houston opened an 80-page dissent, joined by Senior Judge Sam Johnson of Austin and Chief Judge Henry Politz, with the observation, ‘The majority ably accomplishes what it set out to do in this case: reach the merits of this appeal so that it can overhaul the Voting Rights Act.” King added, ‘The majority’s decision to deny the motion to remand [send the case back to Bunton], even standing alone, is indefensible. It demonstrates a lack of judicial restraint and sets a bad precedent. Under the majority’s reasoning, states and political, subdivisions embroiled in [Voting Rights Act] section 2 lawsuits must now defend their electoral practices to the bitter end unless those practices can be changed in accordance with state law and everyone who is even remotely connected with the lawsuit agrees agrees to the proposed changes.” Politz also wrote his own dissent, joined by King, Johnson and Jacques Wiener of Shreveport, that criticized the majority for blocking the proposed settlement, noting that “our jurisprudence long has favored settlement as the preferred mode of dispute resolution … In its headlong rush to reach the merits, the majority suggests no persuasive, much less compelling, reason for the jettisoning of the preferred manner of dispute resolution.” The League of United Latin American Citizens filed suit in 1988 challenging the atlarge elections in nine urban counties Bexar, Dallas, Ector, Harris, Jefferson, Lubbock, Midland, Tarrant and Travis counties. After a trial in 1989, U.S. District Judge Lucius Bunton of Midland ruled the countywide elections illegally diluted minority voting strength. The 5th Circuit in 1990 reversed Bunton, ruling that the Voting Rights Act did not apply to judicial elections. The U.S. Supreme Court in 1991 held that the Voting Rights Act does apply to judicial elections and returned the case to the 5th Circuit, where a three-judge panel earlier this year struck down the countywide elections. Higginbotham dissented and called for a rehearing before the entire court. The full 5th Circuit court heard the case in May, as Attorney General Dan Morales brought a settlement proposal endorsed by majorities of the Texas House and Senate after Republicans blocked formal legislation that would have allowed election of judges from subdistricts within the urban counties. But the Republican majority on the 5th Circuit this time found there was no violation of the Voting Rights Act, so there was no need to settle the lawsuit. Morales, who was criticized by conservatives and most of the state’s daily newspapers for promoting a settlement that would circumvent the state Constitution, announced that he would appeal the 5th Circuit ruling to the Supreme Court, but it is doubtful any changes would be made in the method of judicial selection in time for the .1994 elections. Meanwhile, two days after the 5th Circuit ruled in the LULAC case, the Texas Judicial Districts Board voted to recommend that the Legislature adopt a reapportionment plan for the state’s district courts that preserves at-large elections in the nine urban counties in the lawsuit and changes little in the rest of the state. It was supposed to be the first comprehensive redistricting of the state district courts since 1876, when the state was divided into 26 judicial districts. Since then, as the state has grown, the Legislature has added 360 additional courts in a piecemeal fashion with overlapping jurisdictions. VOters in 1985 approved a constitutional amendment creating the Judicial Districts Board, which was charged with “equalizing as nearly as possible the judicial burdens of the district courts of the various judicial districts” if the Legislature failed to act. The board includes Supreme Court Chief Justice Tom Phillips, Court of Criminal Appeals Presiding Judge Michael McCormick, the nine administrative regional judges, the president of the Texas Judicial Council and Governor Richards’ general counsel, David A. Talbot Jr., the,only minority member. The Legislature, of course, failed to act, so the Judicial Districts Board adopted its own reapportionment plan on a 10-3 vote, with Phillips, Talbot and 6th Regional Presiding Judge William E. Moody of El Paso dissenting. Since the board took the position that it could not propose a judicial reapportionment-plan that violated the state Constitution, Phillips said, it did not propose any changes in the nine counties at issue in the federal voting rights lawsuit. As submitted to the Secretary of State, the board’s plan generally preserves the status quo; it would change only 25 districts and the Texas Lawyer reported that only one judge, who is nearing retirement, would lose his bench; El Paso County would get a new district court. Some urban courts would continue to handle as many as eight times more cases than smaller, rural courts. Phillips, who acknowledges the need to make the courts more responsive to minorities while equalizing workloads, proposed a more ambitious alternative that would make changes in 111 district courts and shift 11 courts from rural areas around the state to South Texas and suburban areas. Phillips said that plan would have created five new districts with Hispanic majorities and one new district with at least onethird African-American voting-age population. It was the best the board could do without breaking up counties, Phillips said. But his plan was rejected on an 8-3 vote. The board did not address the equalization of the workload of the courts, it did not address minority access to the courts and it did not address the haphazard structure in the state’s judicial system. So the Legislature has failed, the 5th Circuit has failed and now the Judicial Districts Board has failed to make sense of the state’s trial court system. The Legislature will get another crack at judicial reapportionment when the Judicial Districts Board plan.comes up for approval in the next regular session in 1995. It should not stand for the status quo again. J.C. 4 SEPTEMBER 17, 1993