HOUSTON LAWYERS' ASS'N, ET AL., PETITIONERS V. THE ATTORNEY GENERAL
OF TEXAS, ET AL.

   LEAGUE OF UNITED LATEN AMERICAN CITIZENS, ET AL., PETITIONERS V.
THE THE ATTORNEY GENERAL OF TEXAS, ET AL.

   No. 90-813, No. 90-974

   In The Supreme Court Of The United States

   October Term, 1990

   On Writ Of Certiorari To The United States Court Of Appeals For The
Fifth Circuit

   Brief For The United States As Amicus Curiae Supporting Reversal

            TABLE OF CONTENTS
   Questions Presented
   Interest of the United States
   Statement
       A. The structure of the Texas judicial system
          1. District courts
          2. Specialized subject matter jurisdiction
             courts
          3. Other courts
       B. The proceedings in this case
          1. The district court's decision
          2. The court of appeals' decision
   Summary of argument
   Argument:
       The results test of Section 2 of the Voting Rights
       Act of 1965 applies to the election of Texas district
       court judges
       A. The amended version of Section 2 applies to the
          election of state judges
       B. The election of Texas district judges is not exempt
          from the Section 2 results test on the
          ground that district judges occupy "single person
          offices"
       C. A state's strong, nondiscriminatory reasons for
          at-large judicial elections are among the "totality
          of circumstances" that courts must consider in
          determining whether there has been a violation
          of Section 2
          1. A "strong state policy divorced from racial
             discrimination" supporting at-large judicial
             elections is a "circumstance" for the courts
             to consider in determining whether Section 2
             has been violated
          2. The district court did not consider whether
             the state has a strong, nondiscriminatory
             policy supporting the use of at-large judicial
             elections
             a. A representative yet impartial judiciary
             b. Electoral accountability
             c. Specialized courts
             d. Administrative benefits
             e. Other aspects of at-large judicial elections

                          QUESTIONS PRESENTED

   1. Whether the results test of Section 2 of the Voting Rights Act
of 1965, 42 U.S.C. 1973, applies to the election of state court
judges.

   2. Whether the results test of Section 2 of the Voting Rights Act
of 1965 applies to the election of offices that can be held by only
one person.

                     INTEREST OF THE UNITED STATES

   This case, like Chisom v. Roemer, No. 90-757 (consolidated with
United States v. Roemer, No. 90-1032) involves the application of the
vote dilution analysis of Section 2 of the Voting Rights Act of 1965,
42 U.S.C. 1973, to state judicial elections.  The United States has
the primary responsibility for enforcing Section 2, and the decision
of the Court in this case will have an important effect on federal
enforcement efforts.  In addition, the Attorney General is responsible
under Section 5 of the Voting Rights Act for preclearing voting
changes, and under existing regulations must withhold preclearance if
he concludes that such action "is necessary to prevent a clear
violation of amended section 2." 28 C.F.R. 51.55(b)(2).  This decision
therefore will affect the manner in which the government reviews
proposed voting changes in judicial election procedures under Section
5.  The United States filed an amicus curiae brief when the case was
heard by the panel and the en banc court, and presented oral argument
to the en banc court.

                               STATEMENT

   A. The Structure Of The Texas Judicial System

   1. District courts.  Texas district courts are the State's trial
courts of general jurisdiction.  Tex. Const. Art. 5, Section 8;  see
generally Tex. Judicial Council, Texas Judicial System:  61st Annual
Report 10-17 (1989) (hereinafter Judicial Report).  The Texas
legislature creates district court seats as the nened arises, assigns
the seats individual numbers, and defines the geographic area that
they are to encompass.  Tex. Gov't Code Ann. Section 24.101 et seq.
(Vernon 1988).  With one exception, all of the district court seats at
issue in this case encompass single counties.  /1/ A 1985 amendment to
the Texas Constitution allowed redistricting, on the approval of the
voters, of district court seats into districts consisting of portions
of counties.  Tex. Const. Art. 5, Section 7a(i).  /2/

   District court judges are elected to office for four-year terms
through at-large, countywide elections.  Candidates run for numbered
seats in partisan contests.  Tex. Const. Art. 5, Section 7a(i).  While
party primaries require a majority of votes to be nominated, the
general election requires only a plurality to win.  Tex. Election Code
Section 172.003 (Vernon 1986).  Interim district court vacancies are
filled by gubernatorial appointment.  Tex. Const. Art. 5, Section 28.
See generally 90-813 Pet. App. 190a-191a.

   The jurisdiction of Texas district courts is statewide, while venue
(i.e., the designation of which court with competent jurisdiction
should hear a case) is determined by county.  See Nipper v. U-Haul
Co., 516 S.W.2d 467, 470 (Tex. Civ. App. 1974).  /3/ The venue rules
regarding the county in which a case should be filed are defined by
general laws, see Tex. Civ. Prac. & Rem. Code Ann. Section 15.001
(Vernon 1986);  Tex. Code Crim. Proc. Ann. Art. 13.10 et seq. (Vernon
1977), or by the mandatory or permissive provisions of particular
statutes, see, e.g., Tex. Civ. Prac. & Rem. Code Ann. Sections
15.011-15.040 (Vernon 1986);  see generally 72 Tex. Jur. 3d Venue
Sections 1-99 (1990).

   District courts conduct proceedings at the county seat of the
county in which the case is pending.  Tex. Const. Art. 5, Section 7.
Jury selection, case assignment, and record retention are handled on a
countywide basis.  See, e.g., 3 Tr. 267;  4 Tr. 255-256 (lawsuits in
Harris County are filed at a central intake division and are randomly
assigned to a district court, as are county residents reporting for
jury duty), 4 Tr. 144 (Dallas County).  Administrative coordination
extends across counties as well.  District court judges are sometimes
assigned to hear cases in district courts in other counties, 5 Tr.
120, and this practice has been upheld against the challenge that
judges have jurisdiction only in their own counties.  Reed v. State,
500 S.W.2d 137, 138 (Tex. Crim. App. 1973).  Under Texas law, the
district courts of the State are divided into nine multicounty
administrative judicial regions.  See Tex. Gov't Code Ann. Section
74.042 (Vernon 1988).  The presiding judge of each region is granted
authority to promulgate regional rules of administration, advise
judges on case flow management, recommend organizational changes to
the Supreme Court, and oversee the assignment of judges within and
between regions.  Id. Sections 74.046-74.060.

   2. Specialized subject matter jurisdiction courts.  Although the
state legislature cannot restrict the constitutional jurisdiction of
district courts, /4/ laws containing new district court seats often
express the intent that the judges elected to these posts give
preference to certain types of matters.  In this manner, the
legislature has instructed certain district courts to give preference
to family law matters, criminal matters, civil cases, or some
combination of these areas, and some others appear to possess an
informally designated subject-matter specialty.  Judicial Report
17-19.  Specialty courts are generally employed in populous,
metropolitan counties.  Id. at 10-11.  Since these countis have many
district courts, subject-matter preferences can be allocated among
district court judges so that relatively large numbers of seats are
assigned to each specialty.  /5/

   3. Other courts.  There are 14 intermediate courts of appeals
providing appellate review of the judgments of the district courts.
Each such appellate court has between 3 and 13 justices, all of whom
are elected in partisan elections from geographic districts.  Judicial
Report 10-11.  The jurisdiction of these appellate courts is
"co-extensive with the limits of their respective districts." Tex.
Const. Art. 5, Section 6.  The two courts of last resort in the State,
the Supreme Court and the Court of Criminal Appeals, have nine
justices each, all of whom are elected in statewide at-large partisan
elections.  Judicial Report 10.

   The Texas system also includes county courts, municipal courts, and
justice of the peace courts.  Justices of the peace are elected from
"commissioner's precincts," which divide each county into between four
and eight subdistricts.  Tex. Const. Art. 5, Section 18.  In larger
counties, more than one justice of the peace may be elected from each
commissioner's precinct.  Ibid.  The Texas courts have held that
justices of the peace have countywide territorial jurisdiction despite
their election from individual precincts.  See, e.g., Zulauf v. State,
591 S.W.2d 869, 872 & n.5 (Tex. Crim. App. 1979);  Bradley v.
Swearingen, 525 S.W.2d 280, 282 (Tex. Civ. App. 1975).

   B. The Proceedings In This Case

   The plaintiffs, black and Hispanic voters residing in nine Texas
counties, /6/ filed this suit on July 11, 1988, alleging that the use
of an at-large election scheme to elect state district court judges in
these counties diluted the voting strength of black and Hispanic
voters, in violation of Section 2 of the Voting Rights Act of 1965, 42
U.S.C. 1973.  After a bench trial, the district court found that the
plaintiffs had proved violations of Section 2 in each county.  See
Pet. App. 183a-304a.

   1. The district court's decision.  At the outset, the district
court held that Section 2 applies to the election of judges.  The
court rejected the State's argument that Section 2 does not apply to
the election of trial judges since trial judges act individually, not
collegially.  Relying on the Fifth Circuit's decision in Chisom v.
Edwards, 839 F.2d 1056, cert. denied, 488 U.S. 955 (1988) (Chisom I),
the court held that Section 2 applies to all judicial elections.  Pet.
App. 289a & n.32.

   The court then applied the vote dilution test set forth in
Thornburg v. Gingles, 478 U.S. 30 (1986), to analyze plaintiffs'
claims.  The court found that plaintiffs had shown, in each county,
(1) the existence of a minority group (black, Hispanic, or both) of
sufficient size and geographical compactness to constitute a majority
in a single-member district;  (2) political cohesiveness within that
minority group;  and (3) racial bloc voting by the white majority that
had consistently defeated the preferred candidates of the minority
group.  Pet. App. 289a-301a;  see id. at 210a-273a.  The court also
found relevant three other factors drawn from the Senate Judiciary
Committee Report accompanying the 1982 amendments to the Voting Rights
Act, see S. Rep. No. 417, 97th Cong., 2d Sess. 28-29 (1982)
(hereinafter Senate Report):  the effects of past discrimination on
minorities in Texas and the historical domination of the Texas
judicial system by whites;  use of numbered posts and a majority vote
requirement in primaries;  and the large size of five couties (Harris,
Dallas, Tarrant, Bexar, and Travis).  Pet. App. 273a-277a.  The court
also noted that minorities had not enjoyed electoral success since
1980.  Id. at 279a-281a.

   The State maintained that at-large elections were necessary for
several reasons:  Judges elected from areas smaller than the existing
county-wide districts would be susceptible to influence by organized
crime and special interest or political groups;  the at-large system
had administrative advantages that would be lost if courts had less
than county-wide jurisdiction;  and modifying the present at-large
system would be unduly costly.  Pet. App. 281a.  The State also
maintained that judges should be elected from the same area in which
they exercised their primary jurisdiction, and that members of the
electorate would be disenfranchised in counties that used specialized
courts if persons could not vote for judges who exercise each type of
subject matter jurisdiction.  Id. at 281a-282a.

   The district court found none of these arguments persuasive.  It
concluded that jury selection and other administrative functions could
still be handled centrally on a county-wide basis, Pet. App. 284a, and
that no compelling state policy required specialty court designations
to be retained, id. at 283a-285a.  /7/ In sum, the court found, based
on the totality of the circumstances, that the plaintiffs had proved a
violation of Section 2.  Id. at 300a-301a.  /8/

   2. The court of appeals' decision.  The defendants appealed, and
the en banc court of appeals reversed by a divided vote.  League of
United Latin American Citizens Council No. 4434 v. Clements, 914 F.2d
620 (5th Cir. 1990) (LULAC) (Pet. App. 1a-182a).  /9/ The court held
that although Section 2 generally applies to judicial elections, the
vote dilution test of Section 2(b) does not, because judges are not
"representatives" under Section 2(b) or as a general matter.  Pet.
App. 14a-35a.

   The court noted that the concept of minority vote dilution was
modeled on the vote dilution standards developed in "one-person,
one-vote" cases and that by 1981 numerous federal court decisions,
including one by this Court -- Wells v. Edwards, 409 U.S. 1095 (1973),
summarily aff'g 347 F. Supp. 453 (M.D. La. 1972) (three-judge court)
-- had ruled that "the judicial office is not a representative one,
most often in the context of deciding whether the one-man, one-vote
rubric applied to judicial elections." Pet. App. 16a;  id. at 16a n.9
(collecting cases).  Applying the canon of construction that Congress
is presumed to be aware of and endorse "the uniform construction"
placed on a term, id. at 24a, the majority determined that Congress
used the term "representatives" in order to apply the new results test
of Section 2 to elections for representative, political offices but
not to vote dilution claims in judicial contests.  Id. at 16a-27a.
The majority found unpersuasive the fact that the definitional
provision of the Act, 42 U.S.C. 1973l(c)(1), defined "voting" by
reference to "candidates for public or party office," because the term
"representatives" in Section 2 was more specific.  Pet. App. 27a-29a.
Because Section 5 of the Voting Rights Act does not use the word
"representatives," the majority also found irrelevant the fact that
Section 5 applies to judicial elections.  Pet. App. 29a.

   Six members of the en banc court, in three separate opinions,
concluded that the dilution test of Section 2 applies to judicial
elections.  Judge Higginbotham, joined by three other judges,
concluded that the term "representatives" encompasses elected judges.
Pet. App. 51a-90a.  He nevertheless concluded that the at-large
election of trial judges in Texas does not violate Section 2 since
each trial judge, like each governor, occupies a so-called "single
member office" whose electorate cannot be further subdivided.  In such
instances, he said, electing all trial judges on an at-large basis
does not dilute minority voting strength.  Id. at 90a-114a.
Concurring specially, Chief Judge Clark said that he agreed with Judge
Higginbotham, adding that vote dilution analysis might be appropriate
when a State elects its judges from single-member districts.  Id. at
36a-46a.  Judge Johnson dissented.  In his view, the Section 2(b) vote
dilution test applies to judicial elections, and the "single member
office" exception did not apply to district court judges in Texas,
because there were multiple officeholders at that level.  Pet. App.
115a-182a.

                          SUMMARY OF ARGUMENT

   A. The results test of Section 2 of the Voting Rights Act of 1965
applies to the election of state court judges.  The original version
of Section 2 of the Voting Rights Act covered the election of judges,
and the amended version of Section 2 did nothing to change that.
Congress did not amend the law to shorten its reach;  instead,
Congress revised Section 2 to enact the "results" test that this Court
had rejected in City of Mobile v. Bolden, 446 U.S. 55 (1980).  Thus,
amended Section 2, like its predecessor, covers every election for
public office.

   The Fifth Circuit erred in ruling that the term "representatives"
in Section 2(b) exempts the election of judges from the results test
of the statute.  The legislative history of the 1982 amendments does
not indicate that Congress used that term in order to limit the scope
of Section 2.  Congress used that term interchangeably with
"candidates" and "elected officials" to refer to those elected to
public or party office.  The "one person, one vote" line of decisions
holding that judges are not representatives is inapplicable here,
since racial vote dilution differs from geographic vote dilution.

   B. The "single member office" doctrine is inapplicable to this
case.  That doctrine recognizes that a minority cannot prove a case of
vote dilution when there is only one person who can hold a unique
office.  District court posts in Texas, however, are not unique.  Each
office is identical to every other such office.  It is immaterial that
each judge holds an office separately designated as a specific
district court, because there is no functional difference between the
differently enumerated district courts.

   C. The courts must consider a strong, nondiscriminatory state
interest among the "totality of circumstances" under Section 2.  This
Court in Whitcomb v. Chavis and the Fifth Circuit in Zimmer v.
McKeithen endorsed consideration of this factor.  Although it does not
"trump" proof of vote dilution, such an interest can spell the
difference between a finding of unlawful vote dilution and a lawful
state electoral practice.  In this case, the district court did not
apply the correct legal standard to the facts, so the case should be
remanded for further proceedings.

                               ARGUMENT

   THE RESULTS TEST OF SECTION 2 OF THE VOTING RIGHTS ACT OF 1965
APPLIES TO THE ELECTION OF TEXAS DISTRICT COURT JUDGES

   A. The Amended Version Of Section 2 Applies To The Election of
State Judges

   The district court found that the Texas at-large system of electing
trial judges violates Section 2 of the Voting Rights Act under the
standard that this Court applied in Thornburg v. Gingles, 478 U.S. 30
(1986).  The Fifth Circuit concluded that the Section 2 results test
does not apply to judicial elections and therefore had no occasion to
address the correctness of the district court's application of Gingles
to the facts of this case.  The questions, then, are whether the
results test of Section 2 applies to judicial elections and, if so,
how that test applies in such a case.

   In Chisom v. Roemer, No. 90-757 (consolidated with United States v.
Roemer, No. 90-1032), we have taken the position that the results test
of Section 2 applies to the election of state judges.  /10/ As we
explain in our brief in that case, the original version of Section 2
of the Voting Rights Act of 1965 covered the election of judges, and
the amended version of Section 2 also applies to judicial elections.
Congress did not amend that statute to shorten its reach;  instead,
Congress revised Section 2 in order to enact the "results" test this
Court rejected in City of Mobile v. Bolden, 446 U.S. 55 (1980).  In
addition, the Fifth Circuit erred in ruling that the term
"representatives" necessarily excludes elected judges.  That term is
best read to include all elected officeholders, whether in the
legislative, executive, or judicial branch.  For these reasons, the
Section 2 results test applies to the election of state judges.

   B. The Election Of Texas District Judges Is Not Exempt From The
Section 2 Results Test On The Ground That District Judges Occupy
"Single Person Offices"

   In the Fifth Circuit, respondents argued that, even if Section 2
generally applies to judicial elections, district judges in Texas
should be exempt from the Section 2 results test.  Each district judge
acts independently of every other judge, respondents argued, unlike an
appellate judge, who is but one of several members of a collegial
decisionmaking body, like a state legislature or a city council.
Texas district judges, according to respondents, occupy what has been
termed a "single person" or "single member office," to which a vote
dilution claim is inapplicable.  Several members of the court of
appeals found that argument persuasive and would have reversed the
district court's judgment on that ground.  See Pet. App. 90a-114a
(Higginbotham, J., concurring in the judgment).  That conclusion, we
believe, is mistaken.

   The "single member office" exception is less an exception to the
Section 2 results test than it is a limitation on the ability of vote
dilution theory to provide a useful means of analyzing and challenging
the at-large election of offices that are held by only one person.
Vote dilution theory has been used as a means of proving that an
electoral scheme can dilute the collective voting strength of minority
groups even though individual minority voters are free to cast ballots
that are given the same weight as the ballots cast by the members of
every other group in the community.  As the Court explained in
Thornburg v. Gingles, a successful challenge to an at-large system
depends on proof that a politically cohesive minority group "is
sufficiently large and geographically compact to constitute a majority
in a single-member district." 478 U.S. at 50.  Otherwise, a minority
group's electoral failure does not necessarily signify that minority
votes have been effectively cancelled out.  Gingles also made clear
that minority voters cannot claim to have been injured by a particular
electoral structure, procedure, or practice (such as the use of an
at-large election) unless minority voters have the potential to elect
representatives in the absence of the challenged voting device.  For
example, if a minority group has the ability to elect legislators from
single-member districts, but has been unable to do so in an at-large
system, the group can challenge the State's use of an at-large system
on the ground that it dilutes the votes of the minority group.  A
violation can be remedied by redrawing the geographic boundaries of
the at-large system into single-member units.  But if a minority group
is dispersed throughout the districts, that group lacks the ability to
elect representatives in a single-member system, and the at-large
nature of the electoral system cannot be said to dilute minority
votes.  See id. at 50-51 & n.17.

   The vote dilution theory recognized in Thornburg v. Gingles cannot
be applied to the at-large election of an office that is occupied by
only one person to represent the entire district.  In that event, a
minority group, by definition, is not "sufficiently large and
geographically compact to constitute a majority in a single-member
district." 478 U.S. at 50.  Under those conditions, it is not the
at-large nature of a system that causes the dilution of minority
votes, but the decision to elect only one person to the office
involved and the impossibility of subdividing the one office into
components.  The vote dilution theory endorsed in Thornburg v. Gingles
does not extend so far as to invalidate the use of such offices by
requireing, for example, multiple governors or mayors.

   The decision in Butts v. City of New York, 779 F.2d 141 (2d Cir.
1985), cert. denied, 478 U.S. 1021 (1986), illustrates the "single
person office" concept.  Butts involved a Fourteenth Amendment and
Section 2 challenge to a New York law requiring run-off primary
elections if no candidate received 40% of the vote for the positions
of mayor, city council president, and comptroller, each of which were
held by only one person.  The court held that the challenged law did
not improperly dilute the votes of minorities because dilution
principles governing election to multimember bodies, such as a city
council, do not apply to single-member offices, like mayor, because
"(t)here can be no equal opportunity for representation within an
office filled by one person." 779 F.2d at 148.  When elections are
held for a multimember body, a minority group has the opportunity to
secure "a share of representation" equal to other groups of citizens
by electing members from districts in which the minority is dominant.
But because "there is no such thing as a 'share' of a single-member
office," the Second Circuit stated, vote dilution theory cannot be
applied in the case of offices that govern the entire electorate and
that are held by only one person.  Ibid.  See also United States v.
Dallas County Comm., 850 F.2d 1430, 1432 n.1 (11th Cir. 1988) (relying
on Butts v. New York to hold that the at-large election of a single
probate judge is permissible).  Cf. City of Port Arthur v. United
States, 459 U.S. 159 (1982) (striking down run-off requirement for
seats on multimember city council without mentioning the run-off
requirement for mayor).  Compare Dillard v. Crenshaw County, 831 F.2d
246, 251-252 (11th Cir. 1987) (chair of county commission was not
treated as a single-member office);  Southern Christian Leadership
Conference v. Siegelman, 714 F. Supp. 511, 518-520 (M.D. Ala. 1989)
(single-member office principle is inapplicable to elected Alabama
circuit and district judges).  /11/

   Of course, it is theoretically possible to eliminate a single
member office by creating a new office that can be occupied by
independent officeholders either simultaneously or on a rotating
basis.  See Note, Applying Section 2 of the Voting Rights Act to
Single-Member Offices, 88 Mich. L. Rev. 2199 (1990) (endorsing that
proposal).  The Voting Rights Act, however, does not reach that far.
As Judge Higginbotham wrote, the Act does not require the States to
restructure their elected positions, Pet. App. 90a-91a;  instead, it
guarantees minorities the same "opportunity" as other members of the
electorate "to participate in the political process and to elect
representatives of their choice." 42 U.S.C. 1973(b).  Section 2
expressly disavows any requirement of proportional representation for
minority groups, and Congress made clear that the Act does not
prohibit all use of at-large systems.  See Senate Report 2, 16, 31-33,
68.  See also Whitcomb v. Chavis, 403 U.S. 124 (1971) (upholding an
at-large system over a racial note dilution claim);  id. at 156-160
(holding that multimember systems are not per se unconstitutional);
White v. Regester, 412 U.S. 755, 765 (1973), and Zimmer v. McKeithen,
485 F.2d 1297, 1304 (5th Cir. 1973), aff'd on other grounds sub nom.
East Carroll Parish School Bd. v. Marshall, 424 U.S. 636 (1976)
(stating that at-large systems are not per se unconstitutional), cited
at Senate Report 33.  Accordingly, the vote dilution theory of
Thornburg v. Gingles does not invalidate single member offices.

   The single member office principle, however, only applies to a
narrow category of elected offices:  ones for which the electroal
district cannot be subdivided because only one official is elected
from a geographic region.  That principle, accordingly, does not apply
in this case, given the structure of the Texas district court system.
Each county elects between 3 and 59 district court judges;  none
elects only one.  Nor does each district judge have unique
responsibilities;  all have the same authority and exercise the same
responsibility.  Some judges specialize in criminal, civil, or family
law cases, but each district court within each county is
interchangeable with every other office, and courts with the same
specialization are entirely fungible.  Under these circumstances, the
Texas electoral system in each county can be subdivided into separate
units without having to perform surgery on the functions performed by
the office of district court judge.  The single member office barrier
to the application of the Section 2 vote dilution analysis does not
exist in this case.

   Judge Higginbotham concluded that a function of the office of
district judge is to represent the entire community, and that creating
subdivisions within counties would thus alter the nature and function
of that office.  Pet. App. 103a-112a.  But if that analysis were
correct, no at-large election to a multimember body could ever be
successfully challenged under Section 2, because every State could
maintain that it is the function of each officeholder to represent the
entire community.  That proposition may be true, but it is also
largely immaterial to the question of coverage.  Rather, it is an
interest to be considered under the "totality of circumstances." What
is pertinent is whether the functions that an office is empowered to
carry out under state law are unique, not whether an officeholder can
be said to represent a particular geographic community when exercising
the power of his office.  The district courts in this case are not
unique, and the single member office doctrine thus does not apply.

   Respondents also maintained below that district judges occupy
single member offices because each judge is elected from a separate
numbered district.  Although it is true that district judges are
technically elected to different judicial districts, each district in
a county is identical to every other district.  The designation of a
judge as sitting for a particular numbered judicial district thus does
not affect the nature of the position that judge holds, and therefore
is of no consequence to the Section 2 analysis.  For example, by
designating 59 judicial districts in Harris County, all of which cover
the same geographic area, Texas has just identified different numbered
posts for election purposes, thereby allowing candidates to run in
head-to-head contests.  That designation does not give rise to a
"single person office" for purposes of Section 2 because it does not
affect the nature of the office itself.

   C. A State's Strong, Nondiscriminatory Reasons For At-Large
Judicial Elections Are Among The "Totality Of Circumstances" That
Courts Must Consider In Determining Whether There Has Been A Violation
Of Section 2

   Texas maintains that the at-large election of district judges helps
ensure that they are responsive to the community while at the same
time lessening the risk that they will be susceptible to undue
influence by particular components of it.  We disagree with
respondents that this justification is sufficient automatically to
exempt judges from Section 2, but we believe that such a justificaton
is a legitimate one and must be considered by the courts among the
"totality of circumstances" in applying Section 2.  42 U.S.C. 1973(b).
 In some instances, that interest can spell the difference between a
lawful and unlawful electoral scheme.  Since the district court did
not apply the correct legal standard to the facts, the judgment should
be vacated and the case remanded for further proceedings.

   1. A "strong state policy divorced from racial discrimination"
supporting at-large judicial elections is a "circumstance" for the
courts to consider in determining whether Section 2 has been violated

   Historically, electoral schemes were initially challenged on the
ground that the malapportionment of representatives effectively
diluted the votes of individual electors.  Reynolds v. Sims, 377 U.S.
533 (1964).  An at-large election can remedy that problem, but also
can lead to a different one, group vote dilution.  Group vote dilution
occurs when the practical operation of an electoral system effectively
erases or minimizes the voting strength of a particular group, such as
a racial minority.  Fortson v. Dorsey, 379 U.S. 433, 439 (1965).  To
prove that an at-large electoral system dilutes minority votes, a
plaintiff must "produce evidence to support findings that the
political processes leading to nomination and election were not
equally open to participation by the group in question -- that its
members had less opportunity than did other residents in the district
to participate in the political processes and to elect legislators of
their choice." White v. Regester, 412 U.S. at 766.  See also Whitcomb
v. Chavis, 403 U.S. at 149-153.

   In Zimmer v. McKeithen, the Fifth Circuit distilled from this
Court's decisions in Whitcomb and White a list of factors for the
courts to use when analyzing a racial vote dilution claim.  485 F.2d
at 1305.  The later significance of the Fifth Circuit's discussion
merits lengthy quotation, ibid.  (footnotes omitted):

         The Supreme Court has identified a panoply of factors, any
      number of which may contribute to the existence of dilution.
      Clearly, it is not enough to prove a mere disparity between the
      number of minority residents and the number of minority
      representatives.  Where it is apparent that a minority is
      afforded the opportunity to participate in the slating of
      candidates to represent its area, that the representatives
      slated and elected provide representation responsive to
      minority's needs, and that the use of a multi-member districting
      scheme is rooted in a strong state policy divorced from the
      maintenance of racial discrimination, Whitcomb v. Chavis, supra,
      would require a holding of no dilution.  Whitcomb would not be
      controlling, however, where the state policy favoring
      multi-member or at-large districting schemes is rooted in racial
      discimination.  Conversely, where a minority can demonstrate a
      lack of access to the process of slating candidates, the
      unresponsiveness of legislators to their particularized
      interests, a tenuous state policy underlying the preference for
      multi-member or at-large districting, or that the existence of
      past discrimination in general precludes the effective
      participation in the election system, a strong case is made.
      Such proof is enhanced by a showing of the existence of large
      districts, majority vote requirements, anti-single shot voting
      provisions and the lack of provision for at-large candidates
      running from particular geographical subdistricts.

The Fifth Circuit and other courts relied on what became known as the
"Zimmer factors" in the vast majority of subsequent cases.  E.g.,
David v. Garrison, 553 F.2d 923, 927 (5th Cir. 1977).  The Senate
Judiciary Committee Report accompanying the Voting Rights Act
Amendments of 1982 noted that fact, Senate Report 23, and endorsed
that approach to the resolution of Section 2 claims, Senate Report
27-30.  The Report also set out a list of "(t)ypical factors" that a
plaintiff could invoke to prove racial vote dilution, id. at 28-29,
that was "derived from the analytical framework used by th(is) Court
in White, as articulated in Zimmer." Id. at 28 n.113.  See Thornburg
v. Gingles, 478 U.S. at 44-45.

   One factor expressly mentioned in Zimmer was whether "the use of a
multi-member districting scheme is rooted in a strong state policy
divorced from the maintenance of racial discrimination." 485 F.2d at
1305.  The Fifth Circuit in Zimmer believed -- correctly, in our view
-- that this Court had endorsed that factor in Whitcomb v. Chavis.
485 F.2d at 1305 (citing Whitcomb).  The Fifth Circuit often
reiterated that factor in later cases, although it did not rely on it
to uphold an at-large electoral scheme.  /12/ Nevertheless, for
several reasons, we believe that strong state policies underlying the
at-large election of judges are factors that the courts must consider
in determining whether such a system violates Section 2.

   First, the text of Section 2 requires the courts to consider the
"totality of circumstances" when analyzing a Section 2 claim.  This
Court has recognized that the State's justification for its electoral
system is a proper factor for the courts to assess in a racial vote
dilution inquiry, see Whitcomb v. Chavis, 403 U.S. at 149, while the
Fifth Circuit in Zimmer expressly approved the use of this particular
factor in the balance of considerations.  485 F.2d at 1305.  The
Senate Report on the 1982 Amendments favorably cited Whitcomb and
Zimmer when discussing how amended Section 2 would operate.  See
Senate Report 24-33.

   Second, Section 2 applies to all state electoral mechanisms, not
simply the use of at-large elections.  For instance, a state law
requiring a person to be a member of the state bar for a set number of
years before becoming a judge could conceivably be challenged on the
ground that it dilutes the pool of candidates for the bench.  For that
matter, a rule that the candidate with the most votes wins could
conceivably be challenged on the ground that it prevents minority
groups from electing a representative to a single-member office, like
governor.  If so, it would be odd in the extreme for Congress to have
prevented the courts from considering the legitimacy and weight of the
State's interest in such rules, focusing instead solely on their
dilutive effect.  What is more, focusing exclusively on the dilutive
effects of a state electoral practice while not giving any weight to
the State's interests could well lead to requiring proportional
representation, which the Act expressly states is not required.
Congress hardly intended that the operation of Section 2 would result
in an outcome that its text expressly disavows.

   At the same time, we do not mean to suggest that proof of a strong
state interest automatically trumps proof of racial vote dilution.
Section 2 is a broadly based prohibition on electoral practices that,
intentionally or not, deny minority voters equal access to the
electoral process.  As a footnote in the Senate Report explains, "even
a consistently applied practice premised on a racially neutral policy
would not negate a plaintiff's showing through other factors (derived
from Zimmer v. McKeithen, supra) that the challenged practice denies
minorities fair access to the process." Senate Report 29 n.117.  See
Bolden v. City of Mobile, 571 F.2d 238, 244 (5th Cir. 1978)
("(c)ity-wide representation is a legitimate interest, and at-large
districting is ordinarily an acceptable means of preserving that
interest (but) the district court was warranted in finding that the
city's interests in its at-large plan did not outweigh the strong
showings by the appellees under the other Zimmer criteria"), rev'd,
446 U.S. 55 (1980).

   The often dilutive effect of at-large elections on minority voting
strength was of considerable importance to Congress in 1982.  Congress
knew that many localities had enacted at-large systems for legitimate
governmental reasons, and no one disputed that there was legitimate
governmental support for at-large elections.  "The reason usually
given in support of at-large elections for municipal offices is 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." Wallace v. House, 515 F.2d 619, 633 (5th Cir.
1975), vacated on other grounds, 425 U.S. 947 (1976).  See also
McMillan v. Escambia County, 638 F.2d 1239, 1244 (5th Cir. 1981)
(describing "good government" basis for at-large elections).  Congress
explicitly relied on a list of 23 lower court decisions that applied
dilution principles.  Senate Report 32.  In several of those cases,
where defendants had alleged race-neutral grounds for at-large
elections, the courts held that the elections were unlawfully dilutive
and required the adoption of a single-member districting system for
future elections to ensure that the State's electoral methods did not
dilute minority voting.  /13/

   Analysis should also be informed, however, by the fact that the
role of judges differs from those of legislative and executive
officials.  In balancing the strength of race-neutral state policies
against evidence of vote dilution under the "totality of
circumstances," it is obviously pertinent to consider the nature of
the office at issue.  The most obvious difference is that while
legislators, and, perhaps, to a lesser extent, executive officials are
expected to advance and protect the interests of their constituents,
and are elected to do just that, judges are expected to be fair and
impartial.  Thus, "responsiveness" to minority voters in not a
relevant concern in evaluating judicial elections.

   The important state interest in ensuring a fair and impartial
judiciary must also be carefully considered in evaluating a State's
decision to elect judges at-large.  The State may believe that judges
should be discouraged from thinking of themselves as representing only
a portion of a particular jurisdiction.  /14/ In addition, a State may
determine that small electoral districts must be avoided in order to
prevent a relatively discrete segment of the jurisdiction from
controlling the election of trial judges.  A State may determine that
fairness, impartiality, and public confidence are significantly aided
where all the people who may generally appear before a particular
judge have a voice in the election of that judge.  /15/ Finally, to
the extent that there are legitimate and strong state interests in the
at-large election of trial or appellate judges, that is powerful
evidence that minority electoral failure is not the product of a
"built-in bias" against minorities but stems, instead, from other,
neutral factors.  Whitcomb v. Chavis, 403 U.S. at 153.  Considering
the State's interests -- which may be different in both nature and
magnitude for the at-large election of judges than for the at-large
election of legislators -- is therefore consistent with the principle
in the case law and legislative history that "'the question whether
the political processes are 'equally open' depends upon a searching
practical evaluation of the 'past and present reality' and on a
'functional' view of the political process." Thornburg v. Gingles, 478
U.S. at 45 (quoting Senate Report 30 & n.120).  See White v. Regester,
412 U.S. at 766-767;  Whitcomb v. Chavis, 403 U.S. at 149-155.

   Section 2 is broad in its reach, but there is no reason to believe
that, in passing the amendment in 1982, Congress sought to alter the
fundamental nature of judicial offices established by the State or
require a method of election that irreconcilably conflicts with those
offices.  After all, Section 2 is addressed to voting practices, not
to the definition of state offices.  Thus, if Texas consistently
elects trial or appellate judges at-large in order to ensure the
appearance of fairness and impartiality in the judicial process, its
interest may not be just "strong" but "compelling." Such an interest
should be considered along with other factors in the totality of
circumstances.

   2. The district court did not consider whether the State has a
strong, nondiscriminatory policy supporting the use of at-large
judicial elections

   Judge Higginbotham concluded that Texas has tied together a
district court's electoral and jurisdictional base as a means of
protecting each judge's independence without compromising the fact and
appearance of impartiality.  The independent decisionmaking authority
of each trial judge is "a structure we must accept," Pet. App. 104a,
Judge Higginbotham concluded, and a federal court cannot create or
direct the State to create single-member districts for judicial
elections because doing so would interfere with the State's
achievement of those critical governmental interests.  Id. at
108a-112a.  We believe that Judge Higginbotham's conclusions are at
least premature, as the facts necessary to a proper assessment of the
way in which Texas uses at-large elections to advance governmental
interests, and the strength of those interests, have been neither
fully developed nor analyzed.  It is not clear that Texas has met the
standard in this case of demonstrating that at-large elections of
trial judges serve a strong state policy.  Nor has the state policy
been weighed against the evidence of vote dilution in this case.  The
case therefore should be remanded so the district court can carry out
the appropriate analysis.

   a. A representative yet impartial judiciary.  The State's principal
justification for holding at-large judicial elections is that using
subdistricts could lead to the fact and perception of judicial bias
and undue influence by special interest groups.  This rationale has
been used to defend at-large elections for legislative and executive
offices, see City of Mobile v. Bolden, 446 U.S. at 70 n.15 (plurality
opinion);  Zimmer v. McKeithen, 485 F.2d at 1301;  cf.  The Federalist
No. 10, at 82-84 (J. Madison) (C. Rossiter ed. 1961), /16/ but assumes
heightened importance in judicial elections, for all the reasons the
judiciary is different from the other branches.  Several witnesses
testified that at-large election of judges was necessary for this
reason, /17/ and this factor may be one of the "totality of
circumstances" showing that minority electoral failure cannot be
attributed to a state system that improperly dilutes minority votes.

   There is, however, evidence tending to disprove the claim that
at-large county-wide elections are essential to ensure a
representative and impartial bench.  The Texas Constitution does not
require county-wide election of the district judges;  it permits the
voters to select them from sub-county districts.  Tex. Const. Art. 5,
Section 7a(i).  Justices-of-the-peace are elected from precincts
smaller than a county, and some election districts of a similar size
could be created here.  /18/ There also was testimony that
justices-of-the-peace, who are elected from such precincts, had no
difficulties with bias or allegations of bias.  4 Tr. 90.  Electoral
districts that are smaller than a county can still be quite large.
Harris County, for example, has a population of nearly 2.5 million and
59 district judges.  Even were Harris County to be divided into 59
subdistricts (a remedy that we do not contend is required), each
district would contain approximately 41,000 people.  /19/ Moreover,
were a remedy necessary, the use of several multimember districts in
large counties might be far preferable to the use of single-member
districts.  Finally, the potential for the fact or appearance of bias
is present whenever judges are elected, while the interest in making
judges accountable to minority voters can perhaps be served only by
eliminating an at-large system.

   b. Electoral accountability.  A related justification for holding
countywide at-large elections is that it helps to ensure that judges
are accountable to the persons over whom they exercise jurisdiction.
/20/ That rationale is a legitimate one, but its force is weakened by
the fact that Texas law does not treat all judges alike.
Justices-of-the-peace, which are trial courts below the level of
district courts, are elected from sub-county precincts even though
these officers exercise jurisdiction over an entire county.  /22/
District courts also can exercise jurisdiction over cases arising
beyond the county boundaries since the parties can agree to permit a
court to adjudicate a case that does not arise within the county.
Page 3 & note 3, supra.  Furthermore, district court judges often hear
cases in other counties to help manage the docket, 5 Tr. 120, and the
residents of a county in which a district judge temporarily sits have
no recourse against him at the polls.  This disuniformity may signify
that the accountability rationale is less weighty in practice than
might otherwise be the case.

   c. Specialized courts.  District Judge Davidson testified that
applying the results test of Section 2 could disrupt the use of
specialized courts.  Because the counties that use specialized courts
generally have many of each type of court, pages 4-5 note 5, supra,
the State could retain the use of specialty courts in large counties
and still remedy dilution, were any such remedy necessary, by, for
example, dividing the specialty courts among districts and having each
district elect each type of judge.

   d. Administrative benefits.  Several witnesses testified that
county-wide elections have administrative advantages that would be
lost if smaller electoral districts were used, such as county-wide
records retention, random assignment of cases to judges within the
county (which aids docket control), and county-wide jury selection.  3
Tr. 257, 264;  4 Tr. 257, 261.  Such benefits may well be valuable,
but by themselves are insufficient to justify a racially dilutive
electoral process.  See Westwego Citizens for Better Gov't v.
Westwego, 872 F.2d 1201, 1211 (5th Cir. 1989).

   e. Other aspects of at-large judicial elections.  It may be
possible to modify other aspects of the electoral apparatus in a
fashion that ameliorates the dilutive effect of an at-large system.
For instance, judges are elected in head-to-head contests.  That
factor, which the legislative history of Section 2 identified as a
common method of diluting minority voting strength, Senate Report 29,
could be modified without also eliminating at-large elections.

   In sum, the careful assessment of the strength of the State's
interests in the present method of election has not been properly
performed, nor have those interests been balanced against the showing
of vote dilution.  The case should be remanded for that purpose.

                              CONCLUSION

   The judgment of the court of appeals should be reversed and the
case remanded for further proceedings.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   JOHN R. DUNNE

      Assistant Attorney General

   JOHN G. ROBERTS, JR.

      Deputy Solicitor General

   ROGER CLEGG

      Deputy Assistant Attorney General PAUL J. LARKIN, JR. Assistant
      to the Solicitor General

   JESSICA DUNSAY SILVER

   MARK L. GROSS

      Attorneys

   MARCH 1991

   /1/ The 72nd Judicial District encompasses Lubbock and Crosby
counties.  See Tex. Gov't Code Ann. Section 24.174 (Vernon 1988)

   /2/ Although Art. 5, Section 7a(i) permits voters to create
subcounty districts, it is not clear whether a court so created could
still exercise county-wide authority.

   /3/ Nipper held that the Travis County district court had
jurisdiction over a claim arising in Bexar County, and that the
parties, both of whom lived in Bexar County, had waived their venue
right to have the case transferred to Bexar County.  See also Jernigan
v. Jernigan, 467 S.W.2d 621 (Tex. Civ. App. 1971) (drawing same
distinction between jurisdiction and venue).

   /4/ See, e.g., Lord v. Clayton, 163 Tex. 62, 67, 353 S.W.2d 718,
721-722 (1961);  Ex parte Richards, 137 Tex. 520, 155 S.W.2d 597, 599
(1941).

   /5/ According to the most recent report of the Texas Judicial
Council, the 59 district court seats in Harris County are assigned
subject matters as follows:  31 courts have general district court
jurisdiction or a civil preference;  16 courts have preference for
criminal cases;  and 12 courts specialize in family law.  Judicial
Report 54.  The 37 seats in Dallas County are divided as follows:  13
courts have general district court jurisdiction or a civil preference;
 15 courts are assigned a criminal preference;  and 9 courts are
designated as family courts or assigned a family law preference.  Id.
at 45.  Tarrant County has 11 courts with general jurisdiction or a
civil preference;  11 courts with a criminal preference or
designation;  and 7 courts with a family law preference.  Id. at 76.
Jefferson County has 4 courts of general district court jurisdiction;
2 courts handling criminal matters;  and 2 courts handling family law.
 Id. at 58.  One of Travis County's 13 district court judges is
assigned a criminal preference, id. at 78, and one of Midland County's
three courts is designated as a family court, id. at 66.  Ector and
Lubbock Counties do not use specailized courts.  Id. at 48, 63.

   /6/ These nine counties are:  Harris County, which has a population
of more than 2,400,000 and chooses 59 district court judges in
at-large elections;  Dallas County, which has a population of more
than 1,500,000 and elects 37 judges at-large;  Tarrant County, which
has more than 860,000 people and elects 23 judges at-large;  Bexar
County, wose population of nearly 1,000,000 chooses 19 judges in
at-large elections;  Travis County, which elects 13 judges and has a
population of nearly 420,000;  Jefferson County, which has 8 judges
and more than 250,000 people;  Lubbock County, with 6 judges and more
than 211,000 people;  Ector County, with 4 judges and more than
115,000 people;  and Midland County, whose 82,000 plus residents elect
3 judges at-large.  90-813 Pet. App. 200a-209a.  Hereinafter we will
use "Pet. App." to refer to the petition appendix in 90-813.

   /7/ The district court also rejected the State's defense that
partisan politics and not race explained the results of elections in
counties where political party primaries were not the impediment to
minority electoral success.  Because the court of appeals held that
judges are exempt from the results test of Section 2, it did not
address this issue.

   /8/ In January 1990, the district court entered an orde postponing
upcoming elections until November 1990 in order to give the Texas
legilature additional time to enact its own remedy.  The court of
appeals thereafter stayed the district court's order, permiting the
elections to go forward.

   /9/ A panel also initially reversed the district court's judgment.
League of United Latin American Citizens Council No. 4434 v. Clements,
902 F.2d 293 (5th Cir. 1990).  The majority held that Section 2 of the
Voting Rights Act applies to the election of judges, 902 F.2d at
295-303, but that the results test of Section 2 does not apply to
Texas trial judges, since they occupy "single person" or "single
member offices," id. at 303-308.  Judge Johnson dissented.  He agreed
with the majority that Section 2 applies to judicial elections, but he
did not believe that trial judges in Texas hold "single member
offices." Id. at 309-321.  The court then decided to rehear the case
en banc.  902 F.2d 322 (1990).

   /10/ We have provided copy of our brief in Nos. 90-757 & 90-1032 to
counsel in this case.

   /11/ In Butts, the court of appeals held that a plurality vote
runoff requirement for a single-person office was not subject to
Section 2.  799 F.2d at 151.  In our view, the method of electing a
single-member office is not immune from attack under Section 2;
minority voters should be able to challenge hurdles to success other
than the at-large structure of an election.

   /12/ See Turner v. McKeithen, 490 F.2d 191, 194 (5th Cir. 1973)
("the strength of the state interest in multi-member or at-large
voting");  Robinson v. Anderson County Comm'rs Court, 505 F.2d 674,
680 (5th Cir. 1974) (considering and rejecting justification for
apportionment;  "the mere fact that an approtionment plan may satisfy
some legitimate governmental goals does not automatically immunize it
from constitutional attack on the ground that it has offended more
fundamental criteria");  Bradas v. Rapides Parish Police Jury, 508
F.2d 1109, 1112 (5th Cir. 1975) (quoting Turner);  David v. Garrison,
553 F.2d 923, 927, 930 (5th Cir. 1977);  Parnell v. Rapides Parish
School Bd., 563 F.2d 180, 184 (5th Cir. 1977);  Bolden v. City of
Mobile, 571 F.2d 238, 244 (5th Cir. 1978), rev'd 466 U.S. 55 (1980).
Cf. Hendrix v. Joseph, 559 F.2d 1265, 1269 (5th Cir. 1977);  McGill v.
Gadsden County Comm'n 535 F.2d 277, 280-281 (5th Cir. 1976) (plaintiff
did not show that state policy was tenuous or discriminatory).
Compare Moore v. Leflore County Bd. of Election Comm'rs, 502 F.2d 621,
624-625 (5th Cir. 1974) (in reviewing the remedy imposed by the
district court, "(e)qualization of land area and road mileage is
extremely important here").

   /13/ Zimmer v. McKeithen, 485 F.2d at 1307;  Hendrix v. Joseph, 559
F.2d 1265 (5th Cir. 1977);  Kendrick v. Walder, 527 F.2d 44 (7th Cir.
1975).  See also Wallace v. House, 515 F.2d at 632-633;  Bolden v.
City of Mobile, 571 F.2d at 244.

   /14/ Of course, where the plaintiff can prove that the adoption or
maintenance of an at-large system, whenever it occurred, was motivated
by racial discrimination, the State's interests are not entitled to
deference.

   /15/ A State may conclude that its court of last resort is the
autoritative source of state law, including the state consitution, and
that all of the people in the State should have a vote for each member
of the court entrusted with that responsibility.  Once a State, as
here, decides to elect judges from areas smaller than the entire
State, closer scrutiny is appropriate, as the State has already
determined to make the judge accountable to only part of the State's
electorate.

   /16/ See also Dallas County v. Reese, 421 U.S. 477, 479-480 (1975);
 Chapman v. Meier, 420 U.S. 1, 20 n.14 (1975);  Dusch v. Davis, 387
U.S. 112 (1967);  Fotson v. Dorsey, 379 U.S. at 438 (all concluding
that multimember districts can be justified on the ground that an
officeholder represents the entire geographic region, not simply one
district).

   /17/ For example, District Judge Mark Davidson testified that
holding elections for judges from districts that are smaller than the
existing county-wide districts woul mean that "the political
pressures, at least on judges from Harris County, would increase
substantially," 3 Tr. 264, and "forum shopping * * * would increase
drematically," as parties sought to "find an attorney * * * with some
political pressure, for example, over the Judge of the Court whose
case you fell in," 3 Tr. 265.  Professor Anthony Champagne opposed
creating subdistricts because "(t)heoretically the larger the
population you serve the more insulated a Judge would be from special
interest group pressure." 4 Tr. 146.  District Judge Carolyn Wright
expressed the same opinion.  4 Tr. 191.  District Judge Harold Entz
testified that using smaller elctoral districts could give rise to a
public perception that some judges would be elected, and some
litigants would be successful, simply because of their race.  4 Tr.
82, 88-90.  He also expressed concern that smaller judicial districts
could help enable large-scale drug traffickers to influence the
outcome of elections.  4 Tr. 83-84.

   /18/ County population ranges from 82,000 (Midland County) to 2.4
million (Harris County).  Under the Texas Constitution, counties with
a population of 30,000 have 4-8 justices-of-the-peace subdistricts,
whole counties with a population of 18,000 can have 2-5 such
precincts.  Tex. Const. Art. 5, Section 18(a).

   /19/ Dallas County, with a population of 1.5 million people, has 37
judges.  Were it divided into 37 subdistricts, each one would contain
about 42,000 people.  Ther are currently judges elected county-wide
from counties with populations of similar size.  By our count, 114 of
Texas's 362 district courts are elected from areas of less than
100,000 people, and 61 of those are elected from areas of 50,000 or
less.  (County populations were determined by reference to United
States Department of Commerce, 1980 Census of Population -- Texas
(1982).)

   /20/ For instance, Texas Supreme Court Chief Justice Thomas
Phillips, testifying for the State, said that at-large elections
assured that judges "ought to be accoutable to those people who can be
hailed into their Court," 5 Tr. 120, and trial judges therefore ought
to be elected from the same area over which the court has
judisdiction.

   /21/ Witnesses also testified that votes for judges were cast based
on factors such as party affiliation, name recognition, or other
considerations unrelated to judicial performance.  3 Tr. 270;  4 Tr.
120;  5 Tr. 129.  Although that fact would tend to undercut the
State's asserted interest in accountability, because the same
criticism can be lodged agains any electoral scheme, it is not clear
that this criticism has any weight here.

   /22/ Justices-of-the-peace can try cases that arise in other
precincts.  Bradley v. Swearingen, 525 S.W.2d 280, 282 (Tex. Civ. App.
1975).  See also Zulauf v. State, 591 S.W.2d 869, 872 & n.5 (Tex.
Crim. App. 1979).

   APPENDIX