United States v. Roemer Brief of Respondents in Opposition
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January 8, 1991

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Brief Collection, LDF Court Filings. United States v. Roemer Brief of Respondents in Opposition, 1991. 8de4a5ca-c79a-ee11-be37-000d3a574715. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/153d0fce-0b10-49fc-b585-42424c81e914/united-states-v-roemer-brief-of-respondents-in-opposition. Accessed July 09, 2025.
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No. 90-1032 In The Supreme Court of the United States October Term, 1990 -------------- 4-------------- UNITED STATES OF AMERICA, versus Petitioner, CHARLES E. ROEMER, ET AL., Respondents. ----------------4---------------- Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit ----------------4---------------- BRIEF OF RESPONDENTS IN OPPOSITION ♦ R obert G . P ugh Counsel of Record LA Bar Roll No. 10897 R obert G . P ugh , J r . LA Bar Roll No. 10896 Of the Law Firm of P ugh , P ugh & P ugh Commercial National Tower Suite 2100 333 Texas Street Shreveport, Louisiana 71101-5302 (318) 227-2270 M . T ruman W oodward , J r . 909 Poydras Street Suite 2300 New Orleans, LA 70130 (504) 569-7100 M oise W. D ennery 601 Poydras Street New Orleans, LA 70130 (504) 586-1241 A. R. C hristovich 2300 Pan American Life Center 601 Poydras Street New Orleans, LA 70130 (504) 561-5700 SPECIAL ASSISTANT ATTORNEYS GENERAL W illiam J. G u ste , Jr. Attorney General Louisiana Department of Justice 234 Loyola Avenue, 7th Floor New Orleans, Louisiana 70112 (504) 568-5575 January 8, 1991 COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 OR CALL COLLECT (402) 342-2831 1 QUESTION PRESENTED Did Congress intend the word "representatives" as used in the Voting Rights Act of 1965, § 2(b) as amended, 42 U.S.C. § 1973, to include judges who are selected by a state judicial electoral process? 11 QUESTION PRESEN TED................................................... i TABLE OF CONTENTS....................................................... ii TABLE OF AUTHORITIES................................................. iii STATEMENT........................................................................... 1 ARGUMENT........................................................................... 1 [III] The Experience Of The Courts With Section 5 Would Not Be Relevant In Determining Inter pretation Of Section 2.1 ...................................... 2 CONCLUSION....................................................................... 6 TABLE OF CONTENTS Page 1 For Sections I and II please see Response in Chisom (90-757). Ill C a ses : TABLE OF AUTHORITIES Page Brooks v. Georgia State Bd. of Elections,___U .S .___ , 111 S.Ct. 13, 112 L.Ed.2d 243 (1990).......................... 2, 3 Buchanan v. Rhodes, 249 F. Supp. 860 (N.D. Ohio), appeal dismissed, 385 U.S. 3, 87 S.Ct. 33, 17 L.Ed.2d 3 (1966), vacated, 400 F.2d 882 (6th Cir. 1968), cert, denied, 393 U.S. 839, 89 S.Ct. 118, 21 L.Ed.2d 110 (1968)............................................................ 2, 3 Chisom, et al. v. Roemer, et al., 917 F.2d 187 (5th Cir., 1990), petition for cert, filed, 59 U.S.L.W. 3374 (U.S. Nov. 13, 1990) (No. 90-757, October Term, 1990).............................................................................1, 2, 5, 6 Clark, et al. v. Roemer, et al., 59 U.S.L.W. 5433 (U.S. December 7, 1990) (No. 90-898, October Term, 1990)....................................................................................... 1, 2 Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974)...................................................................3 Helvering v. City Bank Farmers Trust Co., 296 U.S. 85, 56 S.Ct. 70, 80 L.Ed. 62 (1935)................................ 6 Holshouser v. Scott, 409 U.S. 807, 93 S.Ct. 43, 34 L.Ed.2d 68 (1972).....................................................................2 Holshouser v. Scott, 335 F. Supp. 928 (M.D.N.C. 1971)............................................................................................. 3 Latin American Citizens Council #4434 v. Clements, 914 F.2d 620 (5th Cir. 1990) en banc.................................. 5 Martin v. Haith, 477 U.S. 901, 106 S.Ct. 3268, 91 L.Ed.2d 559 (1986).............................................................2, 3 New York State Association of Trial Lawyers v. Rock efeller, 267 F. Supp. 148 (S.D.N.Y. 1967).............. 3 IV Perrin v. United States, 444 U.S. 37, 100 S.Ct. 311, 62 TABLE OF A UTH O RITIES - Continued Page L.Ed.2d 199 (1979)...................................................................6 Richardson v. Ramirez, 418 U.S. 24, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974)...................................................................3 Tully v. Griffin, 429 U.S. 68, 97 S.Ct. 219, 50 L.Ed.2d 227 (1976)...................................................................................3 S tatutory P ro visio n s: 42 U.S.C. § 1973 [The Voting Rights Act].......................................... Passim Senate Report on the Voting Rights Act, S. Rep. No. 1992, 97th Cong., 2d Sess. (1982)...................... 4, 5 STATEMENT Since substantially all of the arguments as made by the United States of America in its Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit have been heretofore addressed by respon dents in their Brief of Respondents in Opposition as filed in the companion case to this case, Ronald Chisom, et al. v. Buddy Roemer, et al., 917 F.2d 187 (5th Cir. 1990), petition for cert, filed, 59 U.S.L.W. 3374 (U.S. Nov. 13, 1990), (No. 90-757, October Term, 1990), rather than restate their argument here, respondents adopt and reiterate their arguments as made in their response in Chisom (90-757). These same arguments were advanced in the case entitled Clark, et al. v. Roemer, et al., petition for cert, filed, 59 U.S.L.W. 5433, (U.S. December 7, 1990) (No. 90-898, Octo ber Term, 1990), along with an additional argument as set forth in a section entitled: I. G. The "Dichotomy" between Sections 2 and 5 of the Voting Rights Act ----------------4---------------- ARGUMENT Petitioner has suggested that: [T]he Fifth Circuit's decisions in this case and LULAC create an anomaly in the application of Sections 2 and 5 of the Voting Rights Act. Petition at page 12. This assertion follows petitioner's earlier statement [I]n addition the Attorney General is responsible under Section 5 for reviewing voting changes, and must withhold preclearance if he concludes such action "is necessary to prevent a clear vio lation of am ended section 2 ." 28 C.F.R. 1 2 51.55(b)(2). A decision that Section 2's dilution standard does not apply to judicial elections thus affects the manner in which the govern ment review proposed voting changes in judicial election procedures under Section 5. Petition at pages 9-10. In addition to respondents' adoption of their argu ments as made in Chisom (90-757) and Clark (90-898), respondents herein add a section to be entitled: [III]. The Experience Of The Courts With Sec tion 5 Would Not Be Relevant In Deter mining Interpretation Of Section 2.2 The petitioner notes that in Martin v. Haith, 477 U.S. 901, 106 S.Ct. 3268, 91 L.Ed.2d 559 (1986) and in Brooks v. Georgia State Bd. of Elections,___U .S .___ , 111 S.Ct. 13, 112 L.Ed.2d 243 (1990), this Court summarily affirmed a dis trict court decision that Section 5 of the Voting Rights Act applies to the state judiciaries. That section, however, does not use the crucial limiting term "representatives," a term with a plain meaning long construed by this Court. Indeed, this Court has recognized a distinction between the judiciary and other branches of the government in summarily affirming a decision that the "one man, one vote" principle does not apply to the judiciary. Holshouser v. Scott, 409 U.S. 807, 93 S.Ct. 43, 34 L.Ed.2d 68 (1972). The district court decision in Holshouser noted the difference between election of the judiciary and "election of the representatives of the people - officials who make laws, levy and collect taxes, and generally manage and govern people." H olshouser v. Scott, 335 F.Supp. 928, 930 2 For Sections I and II please see the Response in Chisom, 90-757. 3 (M.D.N.C. 1971). Judges, on the other hand, "do not govern nor represent people nor espouse the cause of a particular constituency." Id. at 932; accord, New York State Association of Trial Lawyers v. Rockefeller, 267 F.Supp. 148 (S.D.N.Y. 1967); Buchanan v. Rhodes, 249 F.Supp. 860 (N.D. Ohio), appeal dismissed, 385 U.S. 3, 87 S.Ct. 33, 17 L.Ed.2d 3 (1966). In reality, neither the summary affirmance in Martin, Brooks nor in Holshouser govern the issue presented in this case. Even if either constituted an instructive precedent, such a summary affirmance is "not of the same preceden tial value as would be an opinion of the court treating the question on the merits." Edelman v. Jordan, 415 U.S. 651, 671, 94 S.Ct. 1347, 39 L.Ed.2d 662, 677 (1974); accord, Tully v. Griffin, 429 U.S. 68, 74, 97 S.Ct. 219, 50 L.Ed.2d 227, 233 (1976); Richardson v. Ramirez, 418 U.S. 24, 83 n.27, 94 S.Ct. 2655, 41 L.Ed.2d 551, 587 n.27 (1974) (Marshall, Douglas, & Brennan, J., dissenting). Section 2 of the Voting Rights Act, as amended, cre ated a "results" test while the unamended Section 5 of the Voting Rights Act has always applied an "effects" test. The two sections serve entirely different purposes. Sec tion 5 has a limited applicability - only to specific tar geted states where voting statutory changes may not occur w ithout Ju stice D epartm ent approval [pre clearance]. Section 2, however, applies to the voting stat utes of all states as written and applied before and after the 1982 amendment. A Section 2 violation must be estab lished through a full judicial evidentiary hearing, in which the plaintiff carries the burden of proof. A Section 5 determination is made initially administratively, mostly through correspondence. If the Section 5 change is found objectionable, then the finding is subject to judicial 4 review in the United States District Court for the District of Columbia, with the state bearing the burden of proof. In commenting on the comparison of the "results" test [Section 2] with the "effects" test [Section 5], the Senate Report on the Voting Rights Act, S. Rep. No. 1992, 97th Cong. 2d Sess. (1982) stated: The confusion introduced by the results test is illustrated somewhat by the near-total disagree ment as far as one of the most basic questions involved in the analysis: does the "results" test proposed in section 2 mean the same things as the "effects" test in section 5? Despite the funda mental importance of this matter, there has been disagreement among witness after witness on this. Id. at 31. During the course of both the House and Senate hearings on the Voting Rights Act, approx imately half of the witnesses who discussed this issue claimed that the results test in section 2 was similar or identical to the effects test in section 5, and hence that the judicial history of interpretation under section 5 was relevant; the other half argued that it meant something sub stantially or totally dissimilar. Id. at 32. Interestingly, Julius L. Chambers, one of the counsel for the petitioners in Chisom [90-757], testified concerning the difference between Section 2 and Section 5: Ques t i on : What is the re l a t i onshi p between the results test in section 2 and the effects test in section 5? Chambers: They are not the same test . . . 5 Question: In other words, the experience of the courts with section 5 would not be rele vant in determining how section 2 is likely to be interpreted? Chambers: That is correct. Id. at 31-32. Similarly, Professor Archibald Cox observed: If you mean the effects test as interpreted by the courts with regard to section 5 ,1 think that is considerably different from the results test in section 2. Id. at 32. Forewarned by these differing opinions from con gressional witnesses as to the applicability of the Section 2 "results" test, the Fifth Circuit turned to the plain meaning of the word "representatives" as used in the statute. Latin American Citizens Council #4434 v. Clements, 914 F.2d 620, 628-629 (5th Cir. 1990) (en banc). Section 5 does not use the term "representatives." Indeed, the term "representatives" appears nowhere in the Voting Rights Act except in Section 2(b). If Congress had intended "representatives" to mean "elected officials" (which would have included judges) it could easily have said so. Using the term "representatives" demonstrates Congress meant something other than all elected officials. "A fun damental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning, [cita tions omitted]" Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199, 204 (1979). As this Court has counseled, "we are not at liberty to construe language so plain as to need no construction, [fn. citations omitted] or 6 to refer to committee reports where there can be no doubt of the meaning of the words used [fn. citations omitted]. Helvering v. City Bank Farmers Trust Co., 296 U.S. 85, 89, 56 S.Ct. 80, 80 L.Ed. 62, 66 (1935). ♦ CONCLUSION For the reasons set forth herein, and those as set forth in the Chisom Brief of Respondents in Opposition, [90-757], this Court should deny the Petition for Certiorari. All of the above and foregoing is thus respectfully submitted. R obert G . P ugh Counsel of Record LA Bar Roll No. 10897 R obert G . P ugh , J r . LA Bar Roll No. 10896 Of the Law Firm of P ugh , P ugh & P ugh Commercial National Tower Suite 2100 333 Texas Street Shreveport, Louisiana 71101-5302 (318) 227-2270 M . T ruman W oodward , J r , 909 Poydras Street Suite 2300 New Orleans, LA 70130 (504) 569-7100 M oise W. D ennery 601 Poydras Street New Orleans, LA 70130 (504) 586-1241 A. R. C hristovich 2300 Pan American Life Center 601 Poydras Street New Orleans, LA 70130 (504) 561-5700 SPECIAL ASSISTANT ATTORNEYS GENERAL W illiam J. G uste , J r . Attorney General Louisiana Department of Justice 234 Loyola Avenue, 7th Floor New Orleans, Louisiana 70112 (504) 568-5575 January 8, 1991