League of United Latin American Citizens Council No. 4434 v. Clements

902 F.2d 293

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 11, 1990
• Docket: Nos. 89-8095, 90-8014
• Status: Published

Opinions

PATRICK E. HIGGINBOTHAM, Circuit Judge:

This is a voting rights suit challenging the election of district judges on a countywide basis in Texas. The suit was filed in a United States District Court by the League of United Latin American Citizens against the Attorney General of Texas, the Secretary of State, and other state officials, seeking a declaratory judgment that the at-large election of state district judges in nine targeted counties is illegal under § 2, 42 U.S.C. § 1973, and violative of the fourteenth and fifteenth amendments of the United States Constitution. Plaintiffs requested the district court to enjoin further elections and to impose a districting scheme that included single-member districts. Texas has 254 counties, but the suit attacked only Harris, Dallas, Tarrant, Be-xar, Travis, Jefferson, Lubbock, Hector, and Midland Counties.¹ These nine counties have more than one district judge elected county-wide, and elect 172 of the state’s 390 district judges. As we will explain, the suit targets Texas law requiring election of a state district judge from a district no smaller than the county, the geographical area of its jurisdiction.

After a bench trial, the district court found violations of the Voting Rights Act in each of the nine counties, but rejected the constitutional arguments, finding that plaintiffs had failed to prove that the electoral system was instituted or maintained with discriminatory intent. On January 2, 1990, the district court enjoined defendants from:

Calling, holding, supervising and certifying elections for state district judges in Harris, Dallas, Tarrant, Bexar, Travis, Jefferson, Lubbock, Hector and Midland Counties under the current at-large system with an order for interim relief.

The district court divided the nine counties into electoral subdistricts, tracing the districts of state representatives and the precinct lines of County Commissioners or Justices of the Peace. The district court’s order affected 115 of the 172 district courts. The district court also ordered a non-partisan election for May 5, 1990, with any run-off to be held on June 2, 1990. We stayed the district court’s order pending this appeal.

Defendants first argue that the Voting Rights Act as amended in 1982 has no application to the election of judges. This argument rests on the assertion that the use by Congress of the word “representatives” in section 2(b), added by amendment in 1982 and popularly known as the Dole compromise, unambiguously excluded elected judges because elected judges are not representatives. This argument in its broadest form — section 2(b) of the Act has no application to any judicial elections— was rejected by this court in Chisom v. Edwards, 839 F.2d 1056 (5th Cir.), cert. denied sub nom. Roemer v. Chisom, — U.S. -, 109 S.Ct. 390, 102 L.Ed.2d 379 (1988). Relatedly, but with less sweep, defendants argue that section 2(b) has no application to state district judges because such judges do their judging singly and not as part of a collegial body. Finally, defendants attack the findings below as well as the ordered remedy. In addition to quarrels with the sufficiency of proof that the votes of minorities were diluted, defendants argue that the findings are flawed by the erroneous legal conclusion that the contribution of partisan voting to election outcomes is not relevant.

This panel is, of course, bound by the earlier panel decision in Chisom. Nonetheless, we discuss at some length its holding that Section 2 applies to judicial elections because it is relevant to the issue we do decide with respect to trial judges and because we are persuaded that Chisom’s decision regarding the election of appellate judges was correct. We reject the argument that we should extend Chisom. We hold that the at-large election of trial judges does not violate Section 2(b) of the Voting Rights Act. Because we decide the case on this ground we do not reach defendants’ other contentions.

I

It is vigorously argued that section 2 of the Voting Rights Act has no application to judicial elections because judges are not representatives. The argument in its strongest form is that the word “representatives,” found in section 2(b), unambiguously excludes judges because judges have no constituents. The argument continues that there is no occasion for exploring legislative history because the inquiry ends with the plain words of the statute. It is conceded that the language of section 2(b) is largely drawn from White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), except that it substituted the word “representatives” for “legislators,” at the least to insure it reached elected executive officials. Defendants argue that although “representatives” may encompass executive officials, the term does not encompass judges. It is implicit that to be unambiguously inapplicable to judges, the word must be certain of only one relevant meaning and that meaning must exclude judges. That is, the relevant difference between elected judges and other representatives must be universally plain. Defendants must concede, however, that at one level of generality judges are representatives. The history of electing judges and the political impulses behind that choice are powerful evidence of considered decisions to keep judges sensitive to the concerns of the people and responsive to their changing will, an endeavor hardly antithetical to common law courts. As we will explain, this reality belies the bold assertion that judges are in no sense representatives.

While the Framers of the Constitution might not have viewed appointed judges as “representatives” like legislators or executive officials, we are pointed to no evidence of the Framers views on the status of elected judges, an unfamiliar phenomenon. This is not surprising. Judges were not elected at the time the Constitution was written and ratified. The thirteen original states employed various methods of judicial selection, seven using appointment by the legislature, five by governor and council, and one by governor and legislature. See Winters, Selection of Judges — an Historical Introduction, 44 Tex.L.Rev. 1081, 1082 (1966). Texas became the first new state to adopt the federal method of selecting judges, by executive appointment with confirmation by the state senate. It did so when it joined the United States in 1845. Id.; Tex. Const, art. IV., § 5 (1845). Electing judges was a reform measure aimed at making judicial selection more democratic.

Popular sovereignty and popular control of public affairs through the elective system were hallmarks of the Jacksonian era, and, not surprisingly, the movement for popular election of judges dates from this period. Dissatisfaction with the judiciary was widespread among Jaeksoni-ans. It arose from several factors including a general disaffection with the legal profession, abuses in the judicial appointment systems, and a feeling, carried over from the Jeffersonian period, that the courts were basically undemocratic. Consequently, the abolition of tenure during good behavior and the adoption of the elective system were advocated as reform measures and were hailed as in accord with the egalitarian spirit of the times.

Note, The Equal Population Principle: Does It Apply to Elected Judges?, 47 No-tre Dame L.Rev. 316, 317 (1971).

The experimentation with self-governance and the concept of sovereignty in the populace as a whole thus spread to the judiciary. The first judicial elections took place as early as 1812 for Georgia lower court judges, Ga. Const, art. Ill, § 4 (1812), and in 1832 Mississippi adopted a completely elective judiciary. Miss. Const, art. IV, §§ 2, 11, 16 (1832). The change from appointed to elected judges can be marked by New York’s adoption of judicial elections in 1846. N.Y. Const, árt. VI, §§ 2, 4, 12, 14 (1846). All new states entering the union after that date, until the entrance of Alaska in 1958, used elections as their method of judicial selection, and Georgia, Maryland, Virginia, and Pennsylvania switched from appointment to election. Winters, Selection of Judges, 44 Tex.L.Rev. at 1082. In short, it is fair to conclude that electing judges was viewed as being more democratic and as a way of ensuring that judges remained sensitive to the concerns of the people.

It is contended that judges are oath bound to obey the law and fairly decide in an impartial manner, and thus are not representatives. Yet, executive officials, who are considered representatives, are bound by the same oath. While judges are indeed far removed from the logrolling give and take of the legislative and even executive processes, the effort to assure “sensitivity” and “accountability” through elections is no more than an insistence that the judges represent the people in their task of deciding cases and expounding the law. State judges, wearing their common law hats, face decisions such as whether to adopt a comparative fault standard, and in doing so represent the people in a very real sense. At least at this level of generality judges are indisputably representatives of voters. Saying so in no way steps on the equally indisputable difference between judges and other representatives — that judges do not represent a specific constituency.

In arguing that Congress could not have meant to include judicial elections within the scope of Section 2, the defendants point to the specter of single-member districts for judges whose geographical jurisdiction exceeds the electing district. This in ter-rorem vision of judges biased in favor of a small portion of the people over whom they have jurisdiction puts representation at it lowest and most troubling level. It is flawed, however, because it rests in turn on the assumption that such judges as single officials, as distinguished from members of collegial bodies, are subject to the restraints imposed by § 2(b) of the Act upon at-large elections, a proposition we otherwise here reject.

If we are correct in rejecting the assertion that the application of Section 2 of the Voting Rights Act is not answered by the word “representative,” we must turn to legislative history, cautious as we must be over that enterprise. Then, in the absence of plain signals of legislative purpose, the outcome must turn on the question we ask. Should we ask whether we are persuaded that Congress did not intend to withdraw coverage, or should we ask whether Congress intended to extend coverage? The choice between the two possible questions is important. This choice is informed, if not controlled, by whether the Voting Rights Act before the 1982 Amendments covered judicial elections. If the answer is that the Act plainly did cover judicial elections before the 1982 amendments, we then turn to whether the amendments require the exclusion of judicial elections from the Act’s coverage. It is suggested that the results test of Section 2(b) represented a fundamental shift in the operation of the Act, that is, that adopting section 2(b) was not a question of retrenchment or expansion of existing coverage but was, rather, an entirely new direction. As such, section 2(b) should not be read to reach judicial elections unless Congress explicitly said so. See Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985).

We turn first to whether the Voting Rights Act covered judicial elections before 1982. We then consider the 1982 amendments to the Act, and review the legislative history of the amendments to determine whether Congress intended to exclude judicial elections from coverage under the Act. Given some evidence that Congress intended to cover judicial elections, we turn to the question of whether Congress was required to specifically mention the election of judges in the statute. After determining that the election of state appellate judges has no claim to the protections of federalism not shared by other institutions of state government, we look at the interplay of sections 2 and 5 to determine whether differences between the two sections preclude the application of section 2 to judicial elections despite section 5’s coverage of those same elections.

A

Section 2, before the 1982 amendments, provided:

§ 1973. Denial or abridgement of right to vote on account of race or color through voting qualifications or prerequisites.

No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title.

42 U.S.C. § 1973 (1975).

Section 2 by its express terms reaches state judicial elections. “Vote” or “voting” was defined as including “all action necessary to make a vote effective in any primary, special or general election ... with respect to candidates for public or party office and propositions for which votes are received in an election.” 42 U.S.C. § 1973/ (c)(1). It is true that there is no mention of judges or the judiciary. There also is no mention of any other specific office. Judges are “candidates for public or party office” elected in a “primary, special, or general election.” There is further evidence of congressional intent to reach all types of elections, rather than to pick and choose for regulation only some from the myriad of state elections, in the fact that votes on propositions are within the purview of the Act. Section 14(c)(1), 42 U.S.C. § 1973Í (c)(1).

Defendants argue that the Act is silent as to judges, so it must be construed as not including judicial elections. They argue that, while judges in Texas are “candidates for public office,” it is uncertain whether Congress, by providing a broad definition of “vote,” also intended to create a private remedial cause of action of similar scope in Section 2. Congress expressly defined the term “vote” or “voting,” however, and nothing suggests that Congress did not intend that definition to apply throughout the Act, including Section 2.

Congress intended that its 1965 Act provide protection coextensive with the Constitution. Justice Stewart reiterated this in Mobile v. Bolden:

[I]t is apparent that the language of section 2 no more than elaborates upon that of the Fifteenth Amendment, and the sparse legislative history of section 2 makes clear that it was intended to have an effect no different from that of the Fifteenth Amendment itself....

446 U.S. 55, 60-61, 100 S.Ct. 1490, 1496, 64 L.Ed.2d 47 (1980). We reject the implicit suggestion that the protections of the Fifteenth Amendment do not extend to minorities whose right to vote in judicial elections is abridged. The Fifteenth Amendment applies to all elections, and Congress intended the Voting Rights Act of 1965 to apply to all elections. We would not lightly conclude that the 1965 Act would allow a state to have judicial elections separate from other elections and impose literacy tests, poll taxes, or other restrictions on voting just because the elections were for judges.

By its terms, then, the 1965 Act included judicial elections. The question remains whether the 1982 amendments exempted judicial election from the Act’s coverage.

B

Congress amended Section 2 in 1982 in partial response to the Supreme Court’s decision in City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). Thornburgh v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 2758, 92 L.Ed.2d 25 (1986). Bolden held that in order to establish a violation under Section 2 of the Act a plaintiff must prove purposeful racial discrimination. Bolden, 446 U.S. at 66, 100 S.Ct. at 1499. Congress incorporated a “results test” into Section 2(a) to diminish the burden of proof necessary to prove a violation. Congress also created an entirely new subsection, Section 2(b), which codified the legal standards enunciated in White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973).² As amended in 1982, Section 2 now provides:

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) of this section.

(b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.

42 U.S.C. § 1973 (1982).

The plain language of Section 2(a) reaches judicial elections, using the same language as the 1965 Act, referring generally to “voting” and “vote,” definitions continued unchanged under the 1982 amendments. The legislative history of the 1982 amendments does not indicate that the terms “vote” or “voting” do not include judicial elections, or that “candidates for public office” does not include judges.

Section 2(b) is a new section added in the 1982 amendments. Section 2(a) refers to “denial or abridgement of the right ... to vote on account of race or color ..., as provided in subsection (b) of this section.” Section 2(a) anticipates that subsection (b) will define how a violation of subsection (a) can be established. There is no reason to suppose that subsection (b) defining the type of proof necessary under Section 2 was meant to exclude judges, except for its use of the term “representatives.” As previously noted, this word does not unambiguously exclude judges, for although the office is certainly not representative in every sense, elected judges nonetheless reflect the views of the electors choosing them to be responsible for administering the law. We therefore turn to the legislative history of the 1982 amendments to determine whether Congress intended to exclude judicial elections from coverage.

That Congress did not intend to exclude judges is indicated by the use of the word “candidates” interchangeably with “representatives” in the legislative history. Even Senator Dole, who proposed section 2(b), stated:

Citizens of all races are entitled to have an equal chance of electing candidates of their choice, but if they are fairly afforded that opportunity, and lose, the law should offer no redress.

S.Rep. No. 417, 97th Cong., 2d Sess. 193 (Additional Views of Senator Robert Dole), reprinted in 1982 U.S.Code Cong. & Admin.News 177, 364 (emphasis added), and

[T]he standard is whether the political processes are equally “open” in that members of a protected class have the same opportunity as others to participate in the political process and to elect candidates of their choice.

Id. (emphasis added).

In the one place where the judiciary is specifically mentioned in the legislative history of the 1982 amendments, the report of the subcommittee on the Constitution states that the term “ ‘political subdivision’ encompasses all governmental units, including city and county councils, school boards, judicial districts, utility districts, as well as state legislatures.” Report of the Subcommittee on the Constitution of the Committee of the Judiciary, S.Rep. 417, 97th Cong., 2d Sess., reprinted in 1982 U.S.Code Cong. & Admin.News 177, 323 (emphasis added). Of course, a brief statement in a subcommittee report not in favor of the amendments is not a definitive description of the scope of the Act, but no other comments on the judiciary were made. The proponents of the changes to the Act did not contest this description, although they would have had incentive to do so to alleviate any fears of such extended coverage if such a broad scope of applicability were not intended.

The Senate and House hearings regarding the 1982 amendments contain various references to judicial elections, primarily in the context of statistics presented to Congress indicating the progress made by minorities under the Act up to that date. The charts indicated when minorities were elected to office, and included judicial election results. See Extension of the Voting Rights Act: Hearings on H.R. 1407, H.R. 1731, H.R. 3112, H.R. 3198, H.R. 3Jf73 and H.R. 3j98 Before the Subcomm. on Civil and Constitutional Rights of the House Comm, on the Judiciary, 97th Cong. 1st Sess. 38, 193, 239, 280, 502, 574, 804, 937, 1182, 1188, 1515, 1528, 1535, 1745, 1839, 2647 (1981); Voting Rights Act: Hearings on S. 53, S. 1761, S. 1975, S. 1992, and H.R. 3112 Before the Subcomm. on the Constitution of the Senate Comm, on the Judiciary, 97th Cong.2d Sess. 669, 748, 788-89 (1982). Statistics on judicial elections were considered by Congress in amending the Act, and there is no indication that Congress meant to exclude these elections from coverage.

Some of the legislative history of the 1982 amendments indicates that Congress intended to return to pr e-Bolden standards, and did not think that it was creating a new and much more intrusive private cause of action.³ As we will explain, at least Senator Hatch feared the language of § 2(b) would be much more intrusive, expressing concern that its uncertainty would lead to proportional representation.

The principal focus of the House debates centered on Section 5, but the Senate debates were centered on the meaning of the section 2 amendments. Nonetheless, there was some discussion in the House, and at least some witnesses argued that “the amended section 2 ... would restore to black Southerners the right to challenge alleged discriminatory election schemes which were developing before Mobile, [and that] notwithstanding the Court’s claim to the contrary in Mobile, the intent test first became a constitutional standard in 1976 with Washington v. Davis, an employment case.” Boyd & Markman, The 1982 Amendments to the Voting Rights Act: A Legislative History, 40 Wash. & Lee L.Rev. 1347, 1366 (citing comments by James Blacksher and David Walbert). Congressman Sensenbrenner argued that the Rodino amendment to section 2 was necessary in order to clarify the standard of proof required in order to establish violations of the Act. 127 Cong.Rec. H6850 (daily ed. Oct. 1981) at H6983.

In the Senate Report on the Amendments the purpose of the bill was stated as

designed to make clear that proof of discriminatory intent is not required to establish a violation of Section 2. It thereby restores the legal standards based upon the controlling Supreme Court precedents, which applied in voting discrimination claims prior to the litigation involved in Mobile v. Bolden. The amendment also adds a new subsection to Section 2 which delineates the legal standards under the results test by codifying the leading pre-Bolden vote dilution case, White v. Regester.

S.Rep. 417, 97th Cong., 2d Sess., reprinted in 1982 U.S.Code Cong. & Admin.News at 179 (emphasis added).

Senator Hatch opposed the change, arguing that it “would redefine the concept of ‘discrimination’ and would ‘transform the Fifteenth Amendment and the Voting Rights Act from provisions designed to ensure equal access and equal opportunity in the electoral process to those designed to ensure equal outcome and equal success.’ ” Boyd, Voting Rights Act Amendments, 40 Wash. & Lee L.Rev. at 1389 (quoting Hearings on the Voting Rights Act Before the Senate Subcommittee on the Constitution of the Committee on the Judiciary, 97th Cong., 2d Sess. 3 (1982)). But, Senator Mathias, a proponent of the bill, argued:

The House amendment is needed to clarify the burden of proof in voting discrimination cases and to remove the uncertainty caused by the failure of the Supreme Court to articulate a clear standard in the City of Mobile v. Bolden_ We are not trying to overrule the Court. The Court seems to be in some error about what the legislative intent was.... Prior to Bolden, a violation in voting discrimination cases [could] be shown by reference to a variety of factors that, when taken together, added up to a finding of illegal discrimination. But in Bol-den, the plurality appears to have abandoned this totality of circumstances approach and to have replaced it with a requirement of specific evidence of intent ... this is a requirement of a smoking gun, and I think it becomes a crippling blow to the overall effectiveness of the Act.

Hearings on the Voting Rights Act Before the Senate Subcommittee on the Constitution of the Committee on the Judiciary, 97th Cong., 2d Sess. 3, 199 (1982).

Senator Hatch persisted that the results test represented a new test, but supporters of the bill took issue with this view. Laughlin McDonald of the ACLU argued that “Prior to Mobile, it was understood by lawyers trying these eases and by the judges who were hearing them that a violation of voting rights could be made out upon proof of a bad purpose or effect ... Mobile had a dramatic effect on our eases.” Id. at 369. Defenders of the amendment assumed that the results test represented a restatement of the law prior to Mobile.

Critics of the results test argued that even if the lower federal courts had adopted a results test in their pre-Mobile interpretation of section 2, the original intent of Congress had been the establishment of a test in section 2 using the traditional standard of intent or purpose. Boyd, Voting Rights Act Amendments, 40 Wash. & Lee L.Rev. at 1405 (citing Appendix to Additional Views by Senator Hatch, S.Rep. No. 417, 97th Cong., 2d Sess. 36 (1982)). Proponents responded by arguing that there was no evidence that Congress meant an intent test to apply. The Senate Report of the Committee on the Judiciary adopted this view, citing Attorney General Katzen-bach’s testimony during the hearings on the Voting Rights Act of 1965 to the effect that “section 2 would ban ‘any kind of practice ... if its purpose or effect was to deny or abridge the right to vote on account of race or color.” S.Rep. 417, 97th Cong., 2d Sess., reprinted in 1982 U.S. Code Cong. & Admin.News at 194 (citing Hearings on S. 156b before the Committee on the Judiciary, 89th Cong., 1st Sess., 191 (1965)).

Again, while this legislative history generally indicates an intent to return to pre-Bolden standards rather than create a more intrusive new cause of action, it is not conclusive. Particularly when the 1982 amendments are considered in light of the Supreme Court’s interpretation in Cingles, we cannot conclude that the 1982 amendments to section 2 worked no fundamental changes from the pre-Bolden interpretation of the Act.

Few would quarrel with the assertion that Section 2(b) as interpreted has worked a fundamental change in the Act, highly intrusive to the states. We have insisted in other contexts that Congress clearly state its intent to supplant traditional state prerogatives. Judicial insistence upon clear statement is an important interpretative tool vindicating concern for separation of powers and federalism. See Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985); Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (Pennhurst II). This insistence upon “an unequivocal expression of congressional intent,” Pennhurst II, 465 U.S. at 99, 104 S.Ct. at 907, is based upon the fundamental nature of the interests at stake. “The ‘constitutionally mandated balance of power’ between the states and the Federal Government was adopted by the Framers to ensure the protection of ‘our fundamental liberties.’ ” Atascadero, 105 S.Ct. at 3147 (quoting Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 572, 105 S.Ct. 1005, 1028, 83 L.Ed.2d 1016 (1985) (Powell, J., dissenting)). These mighty principles do not carry us very far here. Congress has clearly expressed the Act’s application to the states, and has clearly expressed its intent that violations of the Act be determined by a results test rather than an intent standard. By these actions, the Act, with all of its intrusive effect, has been made to apply to the states. The federalism concerns underlying insistence upon an explicit statement that state judicial elections were included in the Act’s coverage rest upon the premise that the Act’s application, profoundly intrusive as it is, is somehow uniquely intrusive in its limits upon an elected state appellate judiciary. This contention is by necessity a demand for the exemption of judicial elections from the entire act. But, Section 5, commonly seen as the most far reaching of the Voting Act provisions, see South Carolina v. Katzenbach, 388 U.S. 301, 358-62, 86 S.Ct. 803, 833-35, 15 L.Ed.2d 769 (1966) (Black, J., dissenting), has allowed no escape for elected state judiciaries. Haith v. Martin, 618 F.Supp. 410 (E.D.N.C.1985), aff'd mem., 477 U.S. 901, 106 S.Ct. 3268, 91 L.Ed.2d 559 (1986). As an inferior court we are bound by the holding of the Supreme Court that judicial elections are covered by § 5 of the Act, a result explicitly urged by then Solicitor General Charles Fried and the then head of the Civil Rights Division, Assistant Attorney General William Bradford Reynolds. The same officials argued in Chisom that § 2(b) of the Act is equally applicable.

C

Indeed, we are asked to hold that section 2 could not apply to judicial elections while section 5 does apply, although it also makes no express reference to judges. In Haith the district court held that judicial elections are covered by section 5 and the preclearance requirements of the Act. The district court found, using an analysis similar to that used by this circuit in Voter Information Project v. Baton Rouge, 612 F.2d 208 (5th Cir.1980), that although the one-person, one-vote principle may not apply to judicial elections, claims with respect to the Voting Rights Act do not deal with numerical apportionment, but with discrimination.⁴ The court held that “the Act applies to all voting without any limitation as to who, or what, is the object of the vote.” 618 F.Supp. at 413.⁵

The defendants have not raised any compelling reason to distinguish between Section 5 and Section 2 with respect to their applicability to judicial elections, at least as to judges who act collegially. To hold otherwise would lead to the incongruous result that if a jurisdiction had a discriminatory voting procedure in place with respect to judicial elections it could not be challenged, but if the state sought to introduce that very procedure as a change from existing procedures, it would be subject to Section 5 preclearance and could not be implemented. Sections 2 and 5 operate in tandem, with Section 2 prohibiting the continued use of discriminatory practices, and Section 5 preventing the imposition of new discriminatory practices to replace those condemned in those areas subject to pre-clearance. Section 5 contains language defining its scope that is almost identical to the language in Section 2: “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting....”

There are important differences in the two sections, however, for Section 5 applies only to changes the covered jurisdictions seek to implement. Section 5 requires pre-clearance of any new voting practices and procedures, and in determining whether or not a new practice is entitled to preclearance, only the effect of the new practice is considered. City of Lockhart v. United States, 460 U.S. 125, 103 S.Ct. 998, 74 L.Ed.2d 863 (1983); Beer v. United States, 425 U.S. 130, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976). This has been described as a retrogression test, with preclearance denied only if the new practice has a retrogressive effect, rather than a results test, for the effects of the existing system on minorities are not considered. The real difference is that in section 2 the entire scheme of voting practices and procedures is considered to see whether it results in less than an equal opportunity to participate in the political process, whereas under section 5 only the effects of new practices and procedures are considered. Section 2 is, therefore, arguably more intrusive than section 5,⁶ for section 5 only regulates whether or not changes may be implemented, whereas section 2, if a violation is found, can lead to the dismantling of an entire system of voting practices that may have been in place for many years. This is a distinction between the two sections, but our question must be whether the difference means that section 5 applies to judicial elections, but section 2 does not. There appears to be no relevant reason why judicial elections, the representative character of appellate judges aside, are so different from legislative or executive elections that both sections should apply to one and not the other.

D

It is difficult to conclude that the Voting Rights Act did not cover judicial elections before the 1982 amendments. It is equally plain that there is little evidence that any retrenchment was intended by the 1982 amendments. In sum, defendants are left with the unconvincing argument that the fundamental changes of the 1982 amendments were fundamental in ways unique to judicial elections. The argument has force, but only if the application of the Act were to require single-member districting for single judge seats. Otherwise, although considerably intrusive in general, section 2(b) is no more specifically intrusive in judicial elections than in any others. We hold that Section 2 of the Voting Rights Act applies to judicial elections.

II

We turn now to the contention that we must not:

take the concept of a class’s impaired opportunity for equal representation and uncritically transfer it from the context of elections for multi-member bodies to that of elections for single-member offices .... [Tjhere is no such thing as a “share” of a single-member office.

Butts v. City of New York, 779 F.2d 141, 148 (2d Cir.1985), cert. denied, 478 U.S. 1021, 106 S.Ct. 3335, 92 L.Ed.2d 740 (1986). District courts in Texas consist of individual judges who decide their cases alone. They do not exercise their power together as parts of a multi-member body, and there can be no share of the authority vested in each judge.

The district courts are the primary trial courts in Texas. See Tex. Const. Art. 5, Section 8 (1876, amended 1985). Indeed, the constitution of the Republic of Texas provided:

The Republic of Texas shall be divided into convenient judicial districts, not less than three, nor more than eight. There shall be appointed for each district a judge, who shall reside in the same, and hold the courts at such times and places as Congress may by law direct.

Guittard, Court Reform, Texas Style, 21 Sw.L.J. 451, 456 (1967). The first state constitution, adopted in 1845, contained essentially the same provision in article IV, section 6. This provision was amended in 1850 to allow for the election of district judges by the people, but the subsequent constitution of 1861 provided that district judges were to be appointed. Tex. Const, art. V, § 7, interpretive commentary (1876, amended 1985). Texas constitutions adopted since 1861, including the current constitution, which was adopted in 1876, have provided for elected district judges.

All the constitutions have provided that the district courts are to be held by district judges chosen from defined districts, following the pattern of the Constitution of the Republic of Texas. Although in the Constitution of the Republic of Texas the number of district courts was limited to not more than eight, subsequent constitutions have left the number of courts to the legislature. All the Texas constitutions, including the current one, before it was amended in 1985, suggested that each district would be served by only one judge. See Tex. Const, art. V, § 7 (1986, amended 1985) (“[f]or each district there shall be elected ... a Judge_”). A one judge per district system, however, presupposes districts of substantially equal population. Guittard, supra at 456. Thus, with the growth of the population in certain counties it became necessary for the legislature to make adjustments.

The system challenged in this case was set up according to this pattern. See Tex. Gov’t Code §§ 24.001-24.954 (Vernon 1988 & Supp.1990). With the exception of the 72nd district, each challenged judicial district in the nine targeted counties is coextensive with one county. The 72nd district is composed of two counties. Id. § 24.174 (Vernon 1988). Since 1907 district judges have been elected county-wide. In 1985, however, a section was added to article V of the 1876 Constitution which specifically allows the creation of judicial districts smaller than a county. Tex. Const, art. V, § 7a(i) (1985). A majority of the voters in the county must authorize the division. Id. This power has yet to be exercised.⁷

The district courts in multi-district counties were unified for certain administrative purposes in 1939 through the passage of the Special Practice Act, which is now, for the most part, found in Tex.R.Civ.P. 330(e)-(i). Guittard, supra at 457-58. The relevant parts of the Special Practice Act essentially provide that cases can be freely transferred between judges and that any judge can work on any part of a case including preliminary matters. Also, “[a]ny judgment rendered or action taken by any judge in any of said courts in the county shall be valid and binding.” Tex.R. Civ.P. 330(h).

The Administrative Judicial Act, originally passed in 1927 and subsequently amended on several occasions, divides Texas into nine administrative regions, each with a presiding judge appointed by the governor with the advice and consent of the senate. See Tex.Gov’t Code §§ 74.005, 74.042 (Vernon 1988). The “presiding administrative judge is the key administrative officer in the Texas judicial system.” Guittard, supra at 459.⁸ He is empowered to assign judges as necessary within his region. Id. §§ 74.052-74.056 (Vernon 1988 & Supp. 1990); see also Judicial Administration Rule 8 (Vernon 1988 & Supp.1990). He is required to call two meetings of all judges in his administrative region each year and any other meetings as necessary. Tex. Gov’t Code § 74.048(a) (Vernon 1988); Judicial Administration Rule 4 (Vernon 1988 & Supp.1990). This conference is for “consultation and counseling concerning the state of the civil and criminal business” and is empowered to promulgate administrative rules, rules governing the order of trials and county-wide recordkeeping, and other rules deemed necessary. Tex.Gov’t Code § 74.048(b), (c) (Vernon 1988).

The local administrative judge is elected by a majority vote of all the judges in the county, including both district and statutory judges. Id. § 74.091 (Vernon 1988 & Supp.1990). His duties on the county level are similar to those of the presiding administrative judge. See id. § 74.092. The local administrative judge has the power to assign judges within his county. Id. § 74.094. Under the leadership of the local administrative judge, the district and statutory judges in each county are directed to adopt local rules of administration. Id. § 74.093. These rules must provide for, among other things, the “assignment, docketing, transfer, and hearing of all cases” and “fair and equitable division of caseloads.” Id. § 74.094(b); see also Judicial Administration Rule 9(b) (Vernon 1988 & Supp.1990). All local rules, of course, must be consistent with state and regional rules. Judicial Administration Rule 10 (Vernon 1988). In this regard, Chief Justice Phillips testified that the only collegial decision-making by district judges in a county is in handling administrative matters.

In 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), the plaintiffs contested a primary run-off law, contending that it violated the Equal Protection Clause and the Voting Rights Act. The Second Circuit found that the law was not enacted with a discriminatory purpose, and that it also did not have the effect of denying an equal opportunity to participate in the political process. The court noted that one of the ways that a class of citizens may have less opportunity to participate is when there are electoral arrangements that diminish a class’s opportunity to elect representatives in proportion to its numbers. The court distinguished, however, between multi-member bodies, where at-large elections may produce this result, and elections for single-member offices, stating:

There can be no equal opportunity for representation within an office filled by one person. Whereas, in an election to a multi-member body, a minority class has an opportunity to secure a share of representation equal to that of other classes by electing its members from districts in which it is dominant, there is no such thing as a “share” of a single-member office.

Butts, 779 F.2d at 148. The court found that the Supreme Court had made this distinction implicit in City of Port Arthur v. United States, 459 U.S. 159, 103 S.Ct. 530, 74 L.Ed.2d 334 (1982), where the Supreme Court struck down a run-off requirement for seats on a multi-member city council, but did not mention the run-off requirement for mayor. The Eleventh Circuit followed Butts in United States v. Dallas County, Ala., 850 F.2d 1430 (11th Cir.1988), in holding that “the at-large election of the probate judge is permissible under the Voting Rights Act with respect to the judicial aspects of that office.” Id. at 1432 n. 1.

The positions at issue in Butts and Dallas County, and the position not considered in Port Arthur, were what can be viewed as traditional single member offices, i.e. mayor, city council president, single probate judge, or comptroller. There was only one of each office in a given geographical area, and no problem with overlapping jurisdictions. Here, there are many judges with overlapping jurisdictions. Nonetheless, each acts alone in wielding judicial power, and once cases are assigned there is no overlap in decision-making.

The special courts created within some judicial districts bolster the status of district courts as single-member offices, for not all of the judges handle the same type of work. Some are courts of general jurisdiction, but some judges are elected specifically to handle juvenile cases, or family law cases, or criminal cases. To that extent they are separate offices, just as county treasurer and sheriff are different positions. On the other hand, many of the judges handle the same type of cases and the cases are assigned to any of these judges within a given geographical jurisdiction. There are many of them within a geographical area, and the plaintiffs would find this dispositive. A United States district court in Alabama has held that Alabama district courts similar to the Texas courts are multi-member positions.⁹ Southern Christian Leadership Conf. v. Siegelman, 714 F.Supp. 511 (M.D.Ala.1989). The court considered Dallas County and Butts, but concluded that:

Although neither court expressly defined the term “single-member office,” it is clear to this court that the phrase, as used in those cases, refers to a situation where under no circumstances will there ever be more than one such position in a particular geographic voting area.

Siegelman, 714 F.Supp. at 518. The court did not accept the defendants’ argument that

the hallmark of a single member office, as [the Butts and Dillard] courts use the term, is not the fact that the office is traditionally held by only one individual but, more importantly, the fact that the full authority of that office is exercised exclusively by one individual.

Id. The court found that the coincidence of exclusive authority and exclusivity to a geographical area did not compel the view that exclusive authority meant single-member position. Id. The district court in Clark v. Edwards, 725 F.Supp. 285 (M.D.La.1988), also held that the at-large system of electing trial judges in Louisiana imper-missibly diluted black voting strength, assuming that districts with more than one judicial position were multi-member districts. We disagree with this view of mul-ti-member versus single-member office, and agree with the argument made in Sie-gelman, that “the hallmark of a single member office ... [is] the fact that the full authority of that office is exercised exclusively by one individual.” 714 F.Supp. at 518.

The Eleventh Circuit grappled with determining whether a county commission chairperson held a single-member position in Dillard v. Crenshaw County, Ala., 831 F.2d 246 (11th Cir.1987), and looked to the functions performed by the official to make its decision. The chairperson would preside over commission meetings, but would have no vote except in the case of a tie, and his major function would be as county administrator. The County argued that this position was a single-member office that should be elected at large, and was not just another commissioner that would have to be elected from a single-member district like the other 5 commissioners. The Eleventh Circuit noted that:

As administrator, the chairperson is likened to sheriffs, probate judges, and tax collectors. For these positions, at-large, non-proportional elections are inherent to their nature as single-person officers elected by direct vote. [Butts \ Such single offices are most commonly limited to non-legislative functionaries. To the extent that the proposed chair position is not purely executive or judicial, Calhoun County further cites the examples of lieutenant governors and vice presidents. These, too, are single-office positions, and although the offices are executive, they include the authority to preside over legislative bodies and break tie votes.

Dillard, 831 F.2d at 25Í. These comments indicate that the Eleventh Circuit would find trial judges to be single member positions.¹⁰ The court went on to find that the commission chairperson did not hold a single-member position because the position combined legislative and executive responsibilities. The nature of the position made “significant influence of the chairperson over legislative decision — even without a vote — inherent to the practice of the commission.” Id. at 252. The district judges do not share in that type of decision making.

There is a conceptual problem with viewing district judges as members of a multi-member body. Before any suits are filed, before any eases are assigned, there is a group of judges with concurrent jurisdiction, and plaintiffs maintain that this group should have minority members, so that minorities’ views and concerns are considered by the judges who decide important issues in their lives. The problem is that once a case is assigned, it is decided by only one judge. The other judges have absolutely no say over the disposition of that case, and no influence over the deciding judge. One commentator has described the Texas system as a “one-judge, one court organization at the trial level, with rigid jurisdictional lines and with each judge largely independent of any supervisory control, except by way of appellate review.” Guit-tard, Court Reform Texas Style, 21 Sw. L.J. at 455.

These judges all hear and decide their own docket of cases, and their character as single-office holders instead of members of a multi-member body is emphasized by the problems inherent in attempting to create a remedy for lack of minority representation. For instance, the remedy in this case seems to lessen minority influence instead of increasing it, surely not what Congress intended when it enacted the Voting Rights Act or its amendments. The current system of electing district judges permits voters to vote for each and every judicial position within a given district, generally a county. Minority voters therefore have some influence on the election of each judge. Under the district court’s order, each voter would have the opportunity to vote for only one judge in each district, the judge whose position was assigned to the subdivision. At the same time, a minority litigant will be assigned at random to appear before any district judge in the county. Under the district court’s orders it is much more likely than not that a minority litigant will be assigned to appear before a judge who is not elected from a voting district with greater than 50% minority population. Instead, the great majority of district judges will be elected from new voting subdistricts with negligible minority populations and, consequently, negligible minority political influence on the outcome of those elections. Under the new order requiring election of judges from subdis-tricts, 9 of the 59 judicial positions in Harris county would be elected from minority dominated subdivisions. Minority voters would have very little influence over the election of the other 50 judges, for the minority population is concentrated in those 9 subdivisions. When minority members are litigants, however, they would not necessarily appear before one of the judges elected from a minority dominated subdivision. Instead, a minority member would have an 84.75% chance of appearing before a judge who has no direct political interest in being responsive to minority concerns.¹¹ The minority member would have a 98.3% chance of appearing before a judge in whose election he had not been able to vote. This is not like the situation in Chi-som, where the judges were all part of one body, and every case that went to the Louisiana Supreme Court was heard by all of the judges, so every individual litigant from the state of Louisiana was assured that a judge for whom he had an opportunity to vote would hear his case.

Indisputably, district judges in Texas share administrative tasks with other district judges in the same county. Equally indisputably, however, the district judge in Texas does his judging alone. Judicial decisions at the trial court level are not the product of a collegial process. Whether section 2(b) of the Voting Rights Act reaches such officials can be turned on either of two approaches. One can view the single official doctrine as being no more than a statement of the mechanical impossibility of gaining greater representation for minorities. This approach is simply a resignation to the reality that if there is only one official, there can only be an at-large election. A second view is that the single official exception expresses far more. This view recognizes that where functions are singly exercised, providing single-member districts is no more than proportional representation in its most superficial form.

Some district courts have proceeded with the first view, concluding that the single official doctrine is inapplicable where more than one official was elected at-large by the same electorate. It is plain that this entire suit rests upon the premise that the single official exception reflects no more than the reality that there is nothing to divide unless there is more than one judge in a single county. It is no accident that this suit attacks only the nine counties with multiple district judges and minority populations. But, the right secured to minorities under section 2(b) of the Voting Rights Act to not have their vote diluted is expressed in the assertion that their interests are to be represented in governmental decisions. Where judges make their decisions alone, electing judges from single member districts only ensures that a small number of governmental decisions will be influenced by minority interests, while minority interests will not be represented at all in the majority of judicial decisions.

In embracing the single official concept, we express the judgment that the state’s powerful interest in its structural arrangement of individual trial judges outweighs the potential amelioration of any dilution of minority interests achievable by subdis-tricting. This is particularly true here, where, as we have explained, the subdis-tricting remedy is at best problematic, and is likely perverse. The state’s interests include avoiding the fact and appearance of biased decisionmaking, preserving the core attribute of the trial judge — unshared and non-delegable judgment. It does not follow that other rules attending the election of single officials, such as majority vote requirements, anti single-shot voting provisions, or numbered posts, may not be adjusted.

After careful consideration we conclude that Chisorn was correctly decided, and Section 2 of the Voting Rights Act applies to judicial elections. There cannot be a violation of Section 2(b), however, through at-large elections of the trial judges who sit on the Texas district courts. While elected judges are representatives in that they are accountable to a constituency of electors, the full authority of a trial judge’s office is exercised exclusively by one individual, and there can be no share of such a single-member office. Consequently, the countywide election of district court judges does not violate the Voting Rights Act.

REVERSED.

1 . Ten counties actually are targeted. The challenged 72nd Judicial District encompasses two counties, Lubbock and Crosby. We will refer to the nine targeted Judicial Districts as nine counties.

2 . In White v. Regester the Supreme Court interpreted the requirements of the Voting Rights Act and the U.S. Constitution with respect to claims of vote dilution:

The plaintiffs’ burden is to 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.

412 U.S. at 766, 93 S.Ct. at 2339.

3 . The Fifth Circuit found the vote dilution claim in Mobile v. Bolden to be problematic, since no successful dilution claim expressly grounded on section 2 had been made previously. 571 F.2d 238, 243 (5th Cir.1978). This weakens claims that the new section 2 was merely returning to pr e-Bolden standards.

4 . The one-person, one-vote principle mandated by the equal protection clause of the Fourteenth Amendment was held not to apply to the apportionment of state judiciaries in Wells v. Edwards, 347 F.Supp. 453 (M.D.La.1972) (3-judge court), aff’d mem., 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973) (three justices, dissenting). Wells was distinguished from cases challenging election practices in Lefkovits v. State Board of Elections, 400 F.Supp. 1005 (N.D.Ill.1975) (3-judge court), aff'd mem., 424 U.S. 901, 96 S.Ct. 1092, 47 L.Ed.2d 306 (1976), where the court stated:

[W]hen a judge is to be elected or retained, regardless of the scheme of apportionment, the equal protection clause requires that every qualified elector be given an equal opportunity to vote and have his vote counted.

Id. at 1012. This was the precise point made by Solicitor General Fried in his successful argument to the Supreme Court that it should summarily affirm Haith v. Martin.

5 . The changes required to be precleared in Haith had to do with the elections of trial judges. The district court did not reach the merits of any vote dilution claims, for it had no jurisdiction to do so. New voting practices must be submitted to either the Attorney General or the D.C. Circuit for preclearance. Other district courts only have jurisdiction to decide whether a practice is a change requiring pre-clearance. Consequently, the merits of a vote dilution claim with respect to trial judges was not before the Supreme Court.

6 . Some see Section 5 as being the most intrusive aspect of the Voting Rights Act:

This so-called "preclearance” requirement is one of the most extraordinary remedial provisions in an Act noted for its broad remedies. Even the Department of Justice has described it as a "substantial departure ... from ordinary concepts of our federal system”; its encroachment on state sovereignty is significant and undeniable. The section must, therefore, be read and interpreted with care.

United States v. Sheffield Board of Comm’rs, 435 U.S. 110, 141, 98 S.Ct. 965, 984, 55 L.Ed.2d 148 (1978) (Stevens, J., dissenting) (footnote omitted). See also Katzenbach, 383 U.S. at 358-62, 86 S.Ct. at 833-35 (Black, J., dissenting).

7 . The only time a district has been drawn smaller than a county was when the legislature divided both Dallas and Bexar Counties into two districts, each district having jurisdiction throughout the whole county. The judge for each district was elected by the voters in the district in accordance with the constitution’s command, Tex. Const, art. V, § 7 (1876, amended 1985), as opposed to being elected by countywide vote as now. Thus, there is some precedent for dividing counties into geographically distinct districts. The statutes dividing Bexar and Dallas Counties into two districts were repealed in 1895 and 1907, respectively.

8 . The presiding administrative judge’s duties are to: Tex.Gov’t Code § 74.046 (Vernon 1988) (footnote omitted); see also Judicial Administration Rule 5 (Vernon 1988). The presiding administrative judge is authorized to perform the acts necessary to "improve the management of the court system and the administration of justice.” Tex.Gov't Code § 74.047 (Vernon 1988).

(1)ensure the promulgation of regional rules of administration within policies and guidelines set by the supreme court;

(2) advise local judges on case flow management and auxiliary court services;

(3) recommend to the chief justice of the supreme court any needs for judicial assignments from outside the region;

(4) recommend to the supreme court any changes in the organization, jurisdiction, operation, or procedures of the region necessary or desirable for the improvement of the administration of justice;

(5) act for a local administrative judge when the local administrative judge does not perform the duties required by Subchapter D;

(6) implement and execute any rules adopted by the supreme court under this chapter;

(7) provide the supreme court or the office of court administration statistical information requested; and

(8) perform the duties assigned by the chief justice of the supreme court.

9 . In Haith v. Martin, 618 F.Supp. 410 (D.C.N.C.1985), aff’d mem., 477 U.S. 901, 106 S.Ct. 3268, 91 L.Ed.2d 559 (1986), the district court referred to the superior court judges in North Carolina, also trial judges, as “designated seats in multi-member districts.” Id. at 414. The issue there was not a violation of section 2, however, but whether section 5 of the Act applied to such judicial elections, requiring preclearance of changes.

10 . Carrollton Branch of NAACP v. Stallings, 829 F.2d 1547 (11th Cir.1987), cert. denied sub nom. Duncan v. Carrollton, 485 U.S. 936, 108 S.Ct. 1111, 99 L.Ed.2d 272 (1988), is not to the contrary. The court there faced a single commissioner county government. It found that whether the change from a multi-member to a single commissioner in 1951 was the product of an illicit racial legislative purpose presented a fact question for trial. There is no finding here that the methods of electing judges in Texas were adopted or maintained for a racist purpose. The impermissible purpose, if established, constituted the violation of § 2. The plaintiffs have a right under the section to have such acts voided. That the remedy for the intentional discrimination might be to create a multi-member board to replace the single official does not compel a conclusion that the court believed the plaintiffs had a right to a “share" of the single position in the absence of the impermissible intent.

11 . Moreover, cases without minority parties, but nonetheless concerning issues important to minority groups, would have an 84.75% chance of being assigned to a judge with no accountability to minorities living in the county.