United States v. Roemer Brief of Respondents in Opposition

    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