Clark v. Roemer Brief of Respondents in Opposition

    No. 90-898

In The

Supreme Court of the United States
October Term, 1990

JANICE G. CLARK, ORSCINI L. BEARD, EDDIE G. 
CRAWFORD, NORBERT C. RAYFORD, VOTER 

INFORMATION PROJECT, INC., LOUIS SCOTT, SYLVIA 
COOK, CONNIE SADLER, TOM NELSON AND 

ALBERT RICHARD,
Petitioners,

versus

CHARLES "BUDDY" ROEMER, GOVERNOR OF 
LOUISIANA; WILLIAM J. GUSTE, JR., ATTORNEY 

GENERAL OF LOUISIANA; FOX McKEITHEN, SECRETARY 
OF STATE OF THE STATE OF LOUISIANA, IN THEIR 

OFFICIAL CAPACITIES AS REPRESENTATIVES OF THE 
STATE OF LOUISIANA,

Respondents.
--------------♦—----- -----

Petition For A Writ Of Certiorari To The 
United States Court Of Appeals For The 

Fifth Circuit
--------------♦--------------

BRIEF OF RESPONDENTS IN OPPOSITION
--------------♦--------------

Robert G. Pugh 
Counsel of Record 
Robert G. Pugh, Jr.
Of the Law Firm of 
Pugh, Pugh & Pugh 

Commercial National Tower 
Suite 2100 

333 Texas Street
Shreveport, Louisiana 71101-5302 

(318) 227-2270
(Additional Counsel On Inside Cover)

December 31st, 1990

COCKLE LAW BRIEF PRINTING CO., (800) 22S-8964 
OR CALL COLLECT (402) 342-2831



John N. Kennedy 
Special Counsel to the Governor 
Thomas A. Casey 
Executive Counsel to the 

Governor
Office of the Governor 
Fourth Floor 
State Capitol Building 
Baton Rouge, Louisiana 70804 
(504) 342-7015
Attorneys for and on Behalf of 
Charles "Buddy" Roemer 
Governor of Louisiana
Michael H. Rubin
Christina B. Peck
Rubin, Curry, Colvin & Joseph
Ninth Floor
One American Place
Baton Rouge, Louisiana 70825
(504) 383-9000
Attorneys for the Louisiana 
District Judges Association

Kenneth C. Dejean 
First Assistant Attorney General 
Louisiana Department of Justice 

Office of the Attorney General 
Second Floor 
State Capitol
Baton Rouge, Louisiana 70804 
(504) 342-7014
Attorney for and on Behalf of 
William J. Guste, Jr.
Attorney General of Louisiana

Cynthia Young Rougeou 
Special Counsel to the 
Secretary of State 
State of Louisiana 
Post Office Box 94125 
Baton Rouge, Louisiana 70804 
(504) 342-2065
Attorney for and on behalf of 
Fox McKeithen Secretary of State 
of Louisiana



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?

/<? - 3 1 - m o



QUESTION PRESENTED................................................  i

TABLE OF CONTENTS.................................................  ii

TABLE OF AUTHORITIES.......................................  iv

STATEMENT OF THE CASE..........................................  1

A. The Louisiana State Court Judiciary System
Involved in this C a s e ..............................................  2

B. Prior Proceedings in this Litigation .....................   3

ARGUMENT.......................................................................  7

I. THE FIFTH CIRCUIT CORRECTLY CO N ­
CLUDED IN LULAC THAT SECTION 2(b) OF 
THE VOTING RIGHTS ACT DOES NOT APPLY 
TO THE JUDICIARY............................................... 7

A. The LULAC Decision........................................  7

B. The Genesis of § 2(b) of the Voting Rights
A c t .........................................................................  9

C. This Court has always held that Judges are
not "representatives"...................    10

D. Other Federal Courts have held that Judges
are not "representatives"................................. 11

E. The Term "representatives" is not a Syn­
onym for "elected o fficia ls"...........................  14

F. The Fundamental Difference Between "repre­
sentatives" and Members of the Judiciary is 
Deeply Rooted in this Country's H is to ry ... 17

G. The "Dichotomy" between Sections 2 and 5
of the Voting Rights A c t................................. 20

ii

TABLE OF CONTENTS
Page



Ill

Page

II. IF THE ONE-MAN, ONE-VOTE REQUIREMENT 
DOES NOT APPLY TO THE JUDICIARY, THE 
CONCEPT OF MINORITY VOTE DILUTION SET 
FORTH IN § 2(B) DOES NOT APPLY TO THE 
JUDICIARY.........................................• • • • • • .............  23

CONCLUSION...................................................................  29

TABLE OF CONTENTS -  Continued



IV

C ases:

Baker v. Carr, 369 U.S, 186, 82 S.Ct. 691, 7 L.Ed.2d
663 (1962)..................................................................... 11, 29

Beer v. United States, 425 U.S. 130, 96 S.Ct. 1357, 47
L.Ed. 629 (1976)................................................................ 21

Brown v. Board of School Commissioners of Mobile 
County, 706 F.2d 1103 (11th Cir.), affirmed, 464 
U.S. 1005, 104 S.Ct. 520, 78 L.Ed.2d 705 (1983) . . . .  10

Buchanan v. Gilligan, 349 F. Supp. 569 (N.D. Ohio
1972).....................................................................................  14

Buchanan v. Rhodes, 249 F. Supp. 860 (N.D. Ohio 
1966), 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)............................................................ 13

Chandler v. Judicial Council, 398 U.S. 74, 90 S.Ct.
1648, 26 L.Ed.2d 100 (1970)............................................. 29

Chisom v. Roemer, 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)................................... 2, 7, 8

Clark v. Edwards, 725 F. Supp. 285 (M.D.La. 1988)........4

Clark v. Roemer, 487 U.S. 1266, 109 S.Ct. 29, 101
L.Ed.2d 979 (1988)..................................................... 4

Clark v. Roemer, 86-435 A (M.D. La. 1990) (three- 
judge court) Jurisdictional Statement filed, (U.S.
Dec. 14, 1990) (No. 90-952)................. ....................7, 21

Consumer Products Safety Comm'n v. GTE Sylvania,
447 U.S. 102, 100 S.Ct. 2051, 64 L.Ed.2d 766 
(1980)................................................................................... 15

TABLE OF AUTHORITIES
Page



V

Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857,
95 L.Ed. 1137 (1951)........................................................H

Dickerson v. New Banner Institute, Inc., 460 U.S. 103,
103 S.Ct. 986, 74 L.Ed.2d 845 (1983)........................... 15

Edge v. Sumter County School District, 775 F.2d 1509
(11th Cir. 1985)................................................................... 10

Escondido Mut. Water Co. v. La Jolla Indians, 466
U.S. 765, 104 S.Ct. 2105, 80 L.Ed.2d 753 (1984) . . . .  15

Fahey v. Darigan, 405 F. Supp. 1386 (D.R.I. 1975)........ 14

Gilday v. Board of Elections of Hamilton County, 472
F.2d 214 (6th Cir. 1972)..................................................  14

Gomez v. City of Watsonville, 863 F.2d 1407 (9th Cir.
1988), cert, denied, __ U.S. ___ , 109 S.Ct. 1534,
103 L.Ed.2d 839 (1989). ................................................... 10

Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678,
14 L.Ed.2d 510 (1965)........................................................H

Holshouser v. Scott, 335 F. Supp. 928 (M.D.N.C.
1971), affirmed, 409 U.S. 807, 93 S.Ct. 43, 34 
L.Ed.2d 68 (1972).............................................. . . . . .1 1 ,  12

Houston Lawyers' Association v. Mattox, sub nom.,
Latin American Citizens Council #4434 v. Clem­
ents, (5th Cir. 1990) (en banc) petition for cert, 
filed, 59 U.S.L.W. 3406 (U.S. Nov. 21, 1990) (No.
90-813)...............................................................................7, 8

Jordan v. Winter, 604 F. Supp. 807 (N.D. Miss.), 
affirmed, 469 U.S. 1002, 105 S.Ct. 416, 83 L.Ed.2d 
343 (1984)....................... ..................................................  10

TABLE OF AUTHORITIES -  Continued
Page



VI

Kail v. Rockefeller, 275 F. Supp. 937 (E.D.N.Y. 1967) . . . .  13

Ketchum v. Byrne, 740 F.2d 1398 (7th Cir. 1984), 
cert, denied, 471 U.S. 1135, 105 S.Ct. 2673, 86 
L.Ed.2d 692 (1985)............................................................  10

Latin American Citizens Council #4434 v. Clements,
902 F.2d 293 (5th Cir. 1990)............................................ 8

Latin American Citizens Council #4434 v. Clements,
914 F.2d 620 (5th Cir. 1990) (en banc) ............... passim

TABLE OF AUTHORITIES -  Continued
Page

League of Latin American Citizens, Inc. v. Mattox, 
sub nom., Latin American Citizens Council #4434 
v. Clements, (5th Cir. 1990) (en banc) petition for 
cert, filed, (U.S. Dec. 14, 1990) (No. 90-974)............. 7

Martin v. Mabus, 700 F. Supp. 327 (S.D. Miss. 1988) . . . .  21

Mezvinsky v. Davis, 459 A.2d 307 (Pa. 1983)...............  22

Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64
L.Ed.2d 47 (1980)..........................................  9, 25, 26, 27

New York State Association of Trial Lawyers v. Rock­
efeller, 267 F. Supp. 148 (S.D.N.Y. 1967).....................  13

Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12
L.Ed.2d 506 (1964)......................................  12, 13, 24, 29

Romiti v. Kerner, 256 F. Supp. 35 (N.D. 111. 1966)........ 14

Sagan v. Commonwealth of Pennsylvania, 542 F.
Supp. 880 (W.D. Pa. 1982)............................................  14

Stokes v. Fortson, 234 F. Supp. 575 (N.D. Ga. 1964) . . 12, 29

Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92
L.Ed.2d 25 (1986).......... 5, 9, 22, 24, 25, 26, 27, 28, 29



vii

United States v. Marengo County Commission, 731 
F.2d 1546 (11th Cir.), appeal dismissed & cert, 
denied, 469 U.S. 976, 105 S.Ct. 375, 83 L.Ed.2d 
311 (1984)...........................................................................  10

Velasquez v. City of Abilene, 725 F.2d 1017 (5th Cir.
1 9 8 4 ) .. . . ...........................................................   10

Wells v. Edwards, 347 F. Supp. 453 (M.D. La. 1972). .11, 24

Wells v. Edwards, 409 U.S. 1095, 93 S.Ct. 904, 34 
L.Ed.2d 679 (1973).....................................  10, 23, 24, 27

Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 
L.Ed.2d 363 (1971)............................................................ 29

White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 
L.Ed.2d 314 (1973)............................................................... 9

Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973)........ 28

TABLE OF AUTHORITIES -  Continued
Page

C onstitutional and  Statutory P rovisions:

U nited States C onstitution Thirteenth Amend­
ment ..............................................................................

United States Constitution Fourteenth Amend­
ment ........................... .............................................1' 22' 2^

United States Constitution Fifteenth Amendment
................................................................ 1, 23, 26

28 U.S.C. § 1331......................... • •••■•................................ 1

28 U.S.C. § 1343..................................................................... 1

28 U.S.C. § 2201..................................................................... 1

28 U.S.C. § 2202.......................................- ............................ 1

42 U.S.C. § 1973 [Voting Rights Act] .......................passim



V lll

42 U.S.C. § 1983........................................................................1
42 U.S.C. § 1988........................................................................1
LA. R.S. 13:582 ...................................................................... 21

R egulation:

28 C.F.R. Ch. 1 (7-1-89 Edition) § 5.56..................... . 22

Rules:

Supreme Court Rule 37 ........................................................7
Fed.R.Civ. P. 23(a) and (b)(2).............................................. 1
Fed.R.Civ. P. 54(b)..................... ............................................6

Legislative H istory:

S.Rep. No. 417, 97th Cong. 2d Sess. reprinted in 
1982 U.S. Code Cong. & Admin. News at 177,
196.............     24

Books:

A. Bickel, The Supreme Court and the Idea of Progress
(1978 Yale University Press paperback edition) .19, 20

J. Ely, Democracy and Distrust (1980 Harvard Uni­
versity Press hardbound edition)...................................19

L. Friedman, A History of American Law (Simon &
Schuster 1973 paperback e d itio n ).................................19

E. Hickok, Judicial Selection: The Political Roots 
of Advice and Consent in Judicial Selection:
Merit, Ideology and Politics (National Legal Cen­
ter for the Public Interest 1990)...............     17

G. White, The American Judicial Tradition (1978
Oxford University Press edition)................... 17, 18, 19

TABLE OF AUTHORITIES -  Continued
Page



STATEMENT OF THE CASE1
Petitioners brought this suit in the United States District 

Court for the Middle District of Louisiana as a class action 
pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil 
Procedure. The class consisted of all black voters in the State 
of Louisiana. The suit challenged the at-large voting system 
for the election of District, Family Court and Courts of 
Appeal judges as being in violation of the 1965 Voting Rights 
Act, as amended, because, allegedly, the use of an at-large 
system results in a denial or abridgment of the right to vote of 
petitioners and all those similarly situated on account of race 
and color. Petitioners further asserted that several Louisiana 
statutory provisions had not been precleared by the Justice 
Department in contravention of the 1965 Voting Rights Act. 
Jurisdiction was based on 28 U.S.C. §§ 1331, 1343(3), (4) and 
42 U.S.C. §§ 1973, 1973(c) and 1973(f).

The action sought declaratory and injunctive relief, 28 
U.S.C. §§ 2201 and 2202. The cause of action was asserted to 
have arisen under Sections 2 and 5 of the Voting Rights Act of 
1965, 42 U.S.C. §§ 1973 and 1973(b) as amended in 1982, 42 
U.S.C. §§ 1983 and 1988 as well as the Thirteenth, Fourteenth 
and Fifteenth Amendments to the United States Constitution.

1 Petitioners have presented the following Question:
Does Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, 
apply to elections for state court judges?
Respondents present the following Question:
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?

Respondents have never taken the position that Section 2 of the Voting 
Rights Act as initially enacted in 1965 was not applicable to the state 
judicial electoral process. The original Section 2 paraphrases the Fifteenth 
Amendment to the United States Constitution which binds everyone. It is 
the “results” test set forth in Section 2(b) which the respondents have 
always contended was not intended to embrace state judicial electoral 
processes.

1



2
A. The Louisiana State Court Judiciary System 

Involved In This Case.2
1. Courts of Appeal
There are five Courts of Appeal in Louisiana. Each of the 

five is divided into separate election districts. In those dis­
tricts which contain more than one judge, the judges are 
elected through at-large voting from the entire district. Addi­
tionally, some of the circuits have judges who are elected at- 
large from the entire circuit. The appellate jurisdiction for 
these courts extends to all civil matters, all family and juve­
nile court matters, and substantially all criminal matters, 
except capital cases. At the time of the institution of this suit 
42 judges were elected by district and 6 judges were elected 
at-large.

2. District Courts
There are forty District Courts in the State of Louisiana, 

together with both a Civil and Criminal District Court in the 
Parish of Orleans. Where the district contains more than one 
judge, the judges are elected at-large from the entire district. 
They are the primary courts of original jurisdiction for both 
civil and criminal matters, except in Orleans where these 
functions are separated. At the time of the institution of this 
suit 156 judges were elected to serve in the districts outside of 
Orleans Parish. In Orleans Parish there were 10 criminal 
district court judges and 12 civil district court judges.

3. Family Court
There is one Family Court in Louisiana. It is located in 

East Baton Rouge Parish. The three judges who preside over

2 Additionally, Louisiana has Justice of the Peace, City, Municipal, 
Parish and Juvenile Courts, none of which are involved in this litigation. 
Louisiana also has a Supreme Court which is not involved in this 
litigation, but which has one of its districts under challenge in Chisom, et 
al v. Roemer, et al., Docket Number 90-757, before this Court. A Petition 
for Certiorari is pending.



3

this Court are elected at-large from the entire parish. The 
Family Court has jurisdiction in East Baton Rouge Parish 
which generally encompasses matters pertaining to children 
under seventeen years of age, nonsupport, adoptions and 
matrimonial matters.

B. Prior Proceedings In This Litigation.
Early in the proceedings it was the district court’s 

announced belief that
[I]t needs to be repeated that this court views the 
problem if there is one, as a problem with the 
system -  not individual judicial districts. Obviously 
there must be evidence that the system produces 
unlawful results and those results will appear in 
individual districts, but it is the system, not the 
judicial district, which produces the violation. 

Unreported Minute Entry, United States District Court, Mid­
dle District of Louisiana, July 5, 1988.

As is customary in this type of litigation, this case was 
bifurcated so as to permit a liability phase, to be followed, if 
necessary, by a remedy phase. After a four day trial on 
liability, the district court issued the following Ruling on 
August 10, 1988:

Because of my conviction that there are legally 
significant differences between judicial elections 
and legislative elections, it is my view that the 
remedy for Section 2 violations which are produced 
by the judicial election system, is to change the 
system, not to create sub-districts within district 
courts.

There followed the following Order of August 11, 1988:
IT IS HEREBY ORDERED that the Governor, 

the Secretary of State, the Attorney General, and all 
other election officials, in their official capacities, 
as well as their attorneys, agents and representa­
tives are hereby preliminarily enjoined from con­
ducting any family court, district court, or court of 
appeal election which was scheduled for the Octo­
ber 1, 1988 (primary) and November 8, 1988 (gen­
eral) elections, whether specifically enumerated or



4

not and no certification shall issue to any candidate who 
qualified for any such election without opposition.

The district court ultimately held in the liability phase:
Even though no specific Section 2 violation may 
exist in a particular district at this time, the system 
employed by the state will allow the creation of a 
violation, given time.

The remedy is to revise the system -  to cast 
about for alternative procedures under which black 
voters would have a better chance to elect judicial 
candidates of their choice. * * *

Accordingly, the preliminary injunction previ­
ously issued will be made permanent and will be 
expanded to enjoin all family court, district court, 
and court of appeal elections until revisions in the 
electorial [sic] process are made. * * *
This court can only repeat what it has said many 
times already. State district court districts are juris­
dictional. They may not be redrawn, combined and 
manipulated in the same fashion as legislative dis­
tricts. There are grave problems in attempting to 
create subdistricts within a district court jurisdic­
tion. Tinkering with the districts is not the answer.

Clark v. Edwards, 725 F.Supp. 285, at 302-303, 307 (M.D.La. 
1988).

On appeal the United States Court of Appeal for the Fifth 
Circuit vacated the Injunction. Clark v. Roemer, 88-3626 (5th 
Cir. 1988 unreported).

The petitioners then filed an Application for Stay with this 
Court on September 10th, 1988, in an attempt to vacate the Fifth 
Circuit Order. Clark v. Roemer, A-198, October Term, 1988. The 
Application for Stay was denied by Justice White. It was resubmit­
ted to Justice Marshall who in turn submitted it to the full Court 
where it was denied. Clark v. Roemer, 487 U.S. 1266, 109 S.Ct. 29, 
101 L.Ed.2d 979 (1988).

Respondents filed a Motion to Recall and Recast Find­
ings of Fact and Conclusions of Law liability phase as entered 
on the 15th day of August, 1988. Clark v. Roemer, 725 
F.Supp. 285 (M.D.La. 1988). This was based upon the district



5

court’s conclusion that a systematic corrective measure should be 
the remedy for the violations found by the court, rather than a 
remedy which is district specific. The Motion set forth that neither 
the plaintiffs had shown nor had the court found violations in 18 of 
the district courts and in five of the courts of appeal districts. The 
Motion further asserted that neither the plaintiffs had shown nor 
had the court found evidence to support the three threshold criteria 
as established in Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 
2752, 92 L.Ed.2d 25 (1986). This assertion involved 10 district 
courts, 8 courts of appeal districts, and 1 court of appeal district at- 
large.

After a trial on the Remedy Phase the district court 
issued its Findings of Fact and Conclusions of Law Remedy 
Phase. The Court stated:

Throughout the course of this litigation, this 
court has marched to the solitary beat of its own 
drum, insisting that if Louisiana’s system for select­
ing its judges produces violations of Section 2 of 
the Voting Rights Act, the remedy should be to 
revise the system, not to make adjustments in a few 
“guilty” districts which may well need adjusting 
again in the future. (See, for example, the views 
expressed at 725 F.Supp. at 294-295) None of the 
parties -  plaintiffs, defendants, or intervenors -  
have joined the court’s march. Each insists that, as a 
finding of a Section 2 violation is district specific, 
so any remedy must also be limited to districts in 
which specific violations have been found. For rea­
sons stated later, the court concludes that it lacks 
the power to impose a systemic remedy upon the 
state and that any remedy is indeed limited to 
“guilty” districts. Both the parties and the appellate 
court need to be aware of this court’s findings of 
fact. If, because of the Fifth Circuit’s resolution of 
the Texas case, revisions in this court’s conclusions 
of law are required, so be it. Accordingly, it is 
imperative that the state be permitted to fill judicial 
vacancies as rapidly as possible, in these districts in 
which no violation is found.

Clark v. Roemer, __  F.Supp. __  (M.D.La. 1990), not yet
reported, Slip Opinion, page 3.



6

After discussing each district and granting respondents’ 
Motion to Recall and Recast Findings of Fact and Conclu­
sions of Law Liability Phase, the district court held:

For the foregoing reasons, there will be judg­
ment in favor of plaintiffs and against defendants 
making the injunction previously issued herein per­
manent as to the first, fourth, ninth, fourteenth, 
fifteenth, eighteenth, nineteenth, twenty-fourth and 
fortieth judicial districts and as to the Family Court 
for the Parish of East Baton Rouge and as to the 
Court of Appeal First Circuit, District 2. The 
injunction will be vacated as to all other judicial 
districts.

Id. at page 54.
On September 28th, 1990, the United States Court of 

Appeal for the Fifth Circuit rendered its en banc decision in 
the case of League of Latin American Citizens Council #4434 
v. William P. Clements, et al., 914 F.2d 620 (5th Cir. 1990) (en 
banc) [hereinafter “LULAC”]. The respondents then filed a 
Motion to Recall and Recast Findings of Fact and Conclu­
sions of Law Liability Phase, Findings of Fact and Conclu­
sions of Law -  Remedy Phase and for the Rendition of a Rule 
54(b) Judgment and for the Entry Thereof. The district court 
then issued an Order on October 19th, 1990:

IT IS ORDERED that defendants Rule 54(b) 
Motion be and the same is hereby granted, and that 
the clerk of this Court enter a final Judgment upon 
the Order herein dismissing plaintiffs’ claim that 
“the at-large election scheme of electing Appeal, 
Family, and District Court judges in the State of 
Louisiana unlawfully dilutes black voting strength 
and results in the denial of plaintiffs’ opportunity to 
participate equally in the electoral process and to 
elect judges of their choice, in violation of Section 
2 of the Voting Rights Act, 42 U.S.C. 1973,” [Plain­
tiffs’ Fourth Supplemental and Amended Com­
plaint, prayer, paragraph (b)], pursuant to the 
LULAC decision, and the undersigned expressly 
determines that there is no just reason for delay in 
the entry of a final Judgment of this Order.



7

Petitioners appealed this Judgment to the United States 
Court of Appeals for the Fifth Circuit, where it was docketed 
under 90-3785. Thereafter, without further action in the Fifth 
Circuit, this petition was filed.3

ARGUMENT
I. THE FIFTH CIRCUIT CORRECTLY CONCLUDED 

IN LULAC THAT SECTION 2(b) OF THE VOTING 
RIGHTS ACT DOES NOT APPLY TO THE JUDICI­
ARY.
A. The LULAC Decision.
As previously noted, the district court granted a 54(b) 

judgment based on the en banc decision of the United States 
Court of Appeals for the Fifth Circuit in LULAC.4 The plain­
tiffs in LULAC challenged the county-wide, at-large

3 On the 23rd day of July, 1990, petitioners filed a Motion to a 
three-judge court to enjoin at-large elections for certain unprecleared 
judgeships. The proceedings thereafter are, of course, on a separate track 
and a Jurisdictional Statement in connection therewith was filed with this 
Court on December 14th, 1990. Clark v. Roemer, No. 90-952, October 
Term, 1990.

4 This Court has pending before it for consideration a Petition for a 
Writ of Certiorari as filed by the Houston Lawyers’ Association and six 
individuals on November 21, 1990, Houston Lawyers’ Association v. 
Mattox, 90-813, October Term, 1990, and a Petition for a Writ of 
Certiorari as filed by the League of United Latin American Citizens, Inc., 
on December 14, 1990, in the matter entitled League of United Latin 
American Citizens, Inc. v. Mattox, 90-974, October Term, 1990. Each of 
these cases seeks this Court’s review of the decision as rendered by the 
United States Court of Appeal for the Fifth Circuit on September 28, 
1990, in Latin American Citizens Council #4434 v. Clements, 914 F.2d 
620 (5th Cir. 1990) (en banc). Pursuant to Supreme Court Rule 37, 
Louisiana may, without consent, file an amicus curiae brief in each of 
these cases. At the Clerk’s suggestion, since what Louisiana would say is 
covered in this Response as well as its Response filed in the Chisom case, 
(90-757, October Term, 1990), Louisiana respectfully requests that, to the

(Continued on following page)



8

election of trial judges in Texas as violative of § 2(b) of the 
Voting Rights Act and of the United States Constitution. The 
trial court denied the constitutional claims, finding that the 
requisite discriminatory intent had not been proven. 914 F.2d 
at 623. The trial court, however, did find “that the Texas law 
produced an unintended dilution of minority voting strength” 
in violation of the “results” test of § 2(b) of the Voting Rights 
Act. 914 F.2d at 623 (emphasis in original). On appeal, a 
panel of the Fifth Circuit held that § 2(b) did not apply to trial 
judges because they are single-member officeholders who can 
be elected only at-large. 902 F.2d 293 (5th Cir. 1990).

The Fifth Circuit granted an en banc hearing sua sponte. 
A majority held that judges are not “representatives” within 
the meaning of § 2(b) of the Voting Rights Act and that the 
“results” test of § 2(b) does not apply to the judiciary. 914 
F.2d 620 (5th Cir. 1990). Five judges concurred, agreeing 
with the view of the panel that trial judges are single-member 
officeholders. 914 F.2d at 634. Chief Judge Clark also con­
curred, limiting the case to its facts. 914 F.2d at 631. Only 
one Judge, Judge Sam Johnson, dissented. 914 F.2d at 651. 
After the en banc opinion was published, the panel in Chisom 
remanded this case to the district judge with orders to dismiss 
all Voting Rights Act claims. 917 F.2d 187 (5th Cir. 1990).

(Continued from previous page)
extent permissible, both this Response and the Response in Chisom be 
deemed an amicus brief in the Houston case as well as the LULAC case.

The LULAC panel decision and Judge Higginbotham’s concurring 
opinion in the LULAC en banc opinion state that the “single-official 
doctrine” is applicable to judges who act alone such as Texas district 
judges. LULAC, 902 F.2d 293 (5th Cir. 1990); LULAC, 914 F.2d 620, 634 
(5th Cir. 1990) {en banc) (Higginbotham, J., concurring). In the event that 
this Court holds that Section 2(b) of the Voting Rights Act does apply to 
the judiciary, Louisiana would argue that this “single-official doctrine” 
exception is applicable to Louisiana district judges and family court 
judges who also act alone in making their decisions.



9

B. The Genesis of § 2(b) of the Voting Rights Act.
Section 2 of the Voting Rights Act of 1965 forbade 

imposition or application of any “voting qualification or pre­
requisite to voting, or standard, practice, or procedure” to 
prevent any citizen from voting on account of race or color. 
42 U.S.C. § 1973. This Court in Mobile v. Bolden, 446 U.S. 
55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), held that enforce­
ment of § 2 required proof of racially-discriminatory intent.

Congress then passed the Voting Rights Act of 1982 
amending § 2 to

restore the “results test” -  the legal standard that 
governed voting discrimination cases prior to [the 
Supreme Court’s] decision in Mobile v. Bolden 
* * * * Under the “results test,” plaintiffs are not 
required to demonstrate the challenged electoral 
law or structure was designed or maintained for a 
discriminatory purpose.

Thornburg v. Gingles, 478 U.S. 30, 43 n. 8, 106 S.Ct. 2752, 
92 L.Ed.2d 25, 42 n. 8 (1986) (citations omitted). In writing 
§ 2(b), Congress chose -  with one significant exception -  the 
words of Justice White in White v, Regester, 412 U.S. 755, 93 
S.Ct. 2332, 37 L.Ed.2d 314 (1973). Justice White stated that 
plaintiffs’ burden of proof was to show:

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, 37 L.Ed.2d at 324 
(emphasis supplied). Section 2(b) provides that a plaintiff 
class of citizens must show:

that its members have less opportunity than other 
members of the electorate to participate in the polit­
ical process and to elect representatives of their 
choice.

42 U.S.C. § 1973(b) (emphasis supplied). As the majority in 
LULAC recognized, the choice of the word “representatives” 
was a deliberate one: “the Congress was at some pains to 
adapt and broaden the Court’s phrases so as to convey its 
precise meaning.” 914 F.2d at 625.



10

C. This Court has always held that Judges are not 
“representatives.”

As stated in the prior section, § 2(b) applies to “represen­
tatives.” Members of the legislative and executive branches 
are certainly representatives, and the case law is replete with 
decisions holding that § 2(b) applies to such entities. See, 
e.g., Gomez v. City o f Watsonville, 863 F.2d 1407 (9th Cir.
1988), cert, denied, ___ U.S. ___, 109 S.Ct. 1534, 103
L.Ed.2d 839 (1989) (city council and mayor); Edge v. Sumter 
County School District, 775 F.2d 1509 (11th Cir. 1985) 
(school board); Ketchum v. Byrne, 740 F.2d 1398 (7th Cir. 
1984), cert, denied, 471 U.S. 1135, 105 S.Ct. 2673, 86 
L.Ed.2d 692 (1985) (city aldermen); United States v. Marengo 
County Commission, 731 F.2d 1546 (11th Cir.), appeal dis­
missed & cert, denied, 469 U.S. 976, 105 S.Ct. 375, 83 
L.Ed.2d 311 (1984) (county commission); Velasquez v. City of 
Abilene, 725 F.2d 1017 (5th Cir. 1984) (city council); Brown 
v. Board o f School Commissioners o f Mobile County, 706 F.2d 
1103 (11th Cir.), affirmed, 464 U.S. 1005, 104 S.Ct. 520, 78 
L.Ed.2d 705 (1983) (board of school commissioners); Jordan 
v. Winter, 604 F. Supp. 807 (N.D. Miss.), affirmed, 469 U.S. 
1002, 105 S.Ct. 416, 83 L.Ed.2d 343 (1984) (congressmen).

Judges, however, traditionally have not been considered 
“representatives.” This Court so held by affirming a three- 
judge court voting rights decision that the “one-man, one- 
vote” concept does not apply to the judiciary. Wells v. 
Edwards, 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 
(1973). In refusing to apply “one-man, one vote” precepts, the 
three-judge court reasoned as follows:

[AJs stated in Buchanan v. Rhodes [249 F. Supp.
860 (N.D. Ohio 1960), appeal dismissed, 385 U.S.
3, 87 S.Ct. 33, 17 L.Ed.2d 3 (1966)]:

“Judges do not represent people, they 
serve people.” Thus, the rationale behind the 
one-man, one-vote principle, which evolved 
out of efforts to preserve a truly representative 
form of government, is simply not relevant to 
the makeup of the judiciary.



11
“The State judiciary, unlike the legislature, is 
not the organ responsible for achieving repre­
sentative government.” New York State Asso­
ciation of Trial Lawyers v. Rockefeller, 267 
F.Supp. 148, 153.

Wells v. Edwards, 347 F. Supp. 453 (M.D. La. 1972) (three- 
judge court). The LULAC majority opinion reasons that “[i]t 
is impossible, given the single point at issue and the simple 
reasoning stated, to believe that the majority of the Supreme 
Court, in affirming Wells, did not concur in that reasoning.” 
914 F.2d at 627.

Similarly, Justice Frankfurter has stated: “Courts are not 
representative bodies. They are not designed to be a good 
reflex of a democratic society.” Dennis v. United States, 341 
U.S. 494, 575, 71 S.Ct. 857, 95 L.Ed. 1137, 1160-61 (1951) 
(Frankfurter, J., concurring in the judgment). And Justice 
Stewart has contrasted the Court’s duty with that of the 
people’s representatives:

It is the essence of judicial duty to subordinate our 
own personal views, our own ideas of what legisla­
tion is wise and what is not. If, as I should surely 
hope, the law before us does not reflect the stan­
dards of the people of Connecticut, the people of 
Connecticut can freely exercise their true Ninth and 
Tenth Amendment rights to persuade their elected 
representatives to repeal it.

Griswold v. Connecticut, 381 U.S. 479, 530-31, 85 S.Ct. 
1678, 14 L.Ed.2d 510, 542 (1965) (Stewart, J., dissenting) 
(emphasis supplied).

D. Other Federal Courts have held that Judges are 
not “representatives.”

The lower federal courts have also held that judges are 
not representatives. The plaintiffs in Holshouser v. Scott, 335 
F. Supp. 928 (M.D.N.C. 1971) (three-judge court), attacked 
the North Carolina system of nominating judges by districts 
and electing them statewide, contending that it denied voters 
equal protection of the laws. They cited, inter alia, Baker v. 
Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), and



12

Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 
506 (1964). The court distinguished these and the other cases 
because they “dealt with the election of the representatives of 
the people -  officials who make laws, levy and collect taxes, 
and generally manage and govern people.” 335 F. Supp. at 
930. After discussing two precedents involving reapportion­
ment, the court stated:

While Buchanan [v. Rhodes, 249 F. Supp. 860 
(N.D. Ohio 1960), appeal dismissed, 385 U.S. 3, 87 
S.Ct. 33, 17 L.Ed.2d 3 (1966)] and [New York State 
Association of Trial Lawyers v.] Rockefeller [267 F. 
Supp. 148 (S.D.N.Y. 1967], deal with the apportion­
ment of judges rather than their election, they nev­
ertheless point up the many pitfalls and briar 
patches which the courts will encounter if the one 
man, one vote principle is made applicable to the 
judiciary. The function of judges, contrary to some 
popular views of today, is not to make, but interpret 
the law. They do not govern nor represent people 
nor espouse the cause of a particular constituency.
They must decide cases exclusively on the basis of 
law and justice and not upon the popular view 
prevailing at the time.

335 F. Supp. at 932. The Holshouser case was affirmed by the 
Supreme Court. 409 U.S. 807, 93 S.Ct. 43, 34 L.Ed.2d 68 
(1972).

A similar system of electing judges in Georgia was 
upheld in Stokes v. Fortson, 234 F. Supp. 575 (N.D. Ga. 1964) 
(three-judge court). The court stated:

[E]ven assuming some disparity in voting 
power, the one man-one vote doctrine, applicable as 
it now is to selection of legislative and executive 
officials, does not extend to the judiciary. Mani­
festly, judges and prosecutors are not representa­
tives in the same sense as are legislators or the 
executive. Their function is to administer the law, 
not to espouse the cause of a particular constitu­
ency. Moreover there is no way to harmonize selec­
tion of these officials on a pure population standard 
with the diversity in type and number of cases 
which will arise in various localities, or with the



13

varying abilities of judges and prosecutors to dis­
patch the business of the courts. An effort to apply a 
population standard to the judiciary would, in the 
end, fall of its own weight.

234 F. Supp. at 577.
In two New York cases the plaintiffs sought judicial 

reapportionment on the basis of population, again relying on 
legislative reapportionment cases such as Reynolds v. Sims, 
377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). In New 
York State Association of Trial Lawyers v. Rockefeller, 267 F. 
Supp. 148 (S.D.N.Y. 1967), the court rejected the comparison, 
stating that:

The state judiciary, unlike the legislature, is not 
the organ responsible for achieving representative 
government. Nor can the direction that state legisla­
tive districts be substantially equal in population be 
converted into a requirement that a state distribute 
its judges on a per capita basis.
* * * *

In contrast to legislative apportionment, popu­
lation is not necessarily the sole, or even the most 
relevant, criterion for determining the distribution 
of state judges. The volume and nature of litigation 
arising in various areas of the state bears no direct 
relationship to the population of those areas.

267 F. Supp. at 153-54. A three-judge court rejected a similar suit 
in the Eastern District of New York, quoting the Rockefeller 
opinion’s statement that the state judiciary is not “responsible for 
achieving representative government.” Kail v. Rockefeller, 275 F. 
Supp. 937, 941 (E.D.N.Y. 1967) (three-judge court).

The Ohio judicial structure guaranteeing each county at least 
one judge in the court of general jurisdiction came under attack in 
Buchanan v. Rhodes, 249 F. Supp. 860 (N.D. Ohio 1966), 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). Once again, the complaint was 
predicated upon the Supreme Court’s reapportionment cases. The 
court noted that when representatives to a legislative body are 
malapportioned, the voting strength of individual citizens becomes



14

unequal, causing a dilution of power. 249 F. Supp. at 865. Judges, 
however, are not governed by such a rule:

But in determining the reasonableness of a 
judicial system which permits at least one judge 
operating a court of general jurisdiction in each 
county, we must recognize one glaring distinction 
between the functions of legislators and the func­
tions of jurists. Judges do not represent people, they 
serve people.

249 F. Supp. at 865.5

E. The Term “representatives” is not a Synonym for 
“elected officials”.

Earlier sections of this Response demonstrate that this 
Court and the lower federal courts do not consider judges to 
be “representatives.” This section argues that the word “rep­
resentative” as used in § 2(b) is not synonymous with “elected 
official” and should instead be given its commonly under­
stood meaning. This Court has laid down definitive

5 Numerous other decisions make a similar distinction between 
judges and representative officials. See Gilday v. Board of Elections of 
Hamilton County, 472 F.2d 214, 217 (6th Cir. 1972) (rejecting application 
of one-man, one-vote to judicial selection in Ohio and holding “that equal 
protection does not require the allocation of state judges on this basis”); 
Sagan v. Commonwealth of Pennsylvania, 542 F. Supp. 880, 882 (W.D. 
Pa. 1982) (distinguishing judicial candidates from legislative and execu­
tive candidates because judges administer the law rather than espouse the 
cause of a particular constituency); Fahey v. Darigan, 405 F. Supp. 1386, 
1391 n. 6 (D.R.I. 1975) (holding one-man, one-vote precepts inapplicable 
to “the selection of officials not intended to serve in a representative role, 
such as judges”); Buchanan v. Gilligan, 349 F. Supp. 569, 571 (N.D. Ohio 
1972) (three judge court) (rejecting application of one-man, one-vote to 
Ohio judiciary because “[t]he state judiciary is not responsible for achiev­
ing representative government”); Romiti v. Kerner, 256 F. Supp. 35, 46 
(N.D. 111. 1966) (three judge court) (expressing “little doubt” that “there is 
a valid distinction between applying the ‘one man, one vote’ rule in a 
legislative apportionment case to the election of a state supreme court 
judiciary”).



15

guidelines for construing language which appears in Congres­
sional acts.

In Consumer Products Safety Comm’ n v. GTE Sylvania, 
447 U.S. 102, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980), the 
Court stated:

We begin with the familiar canon of statutory con­
struction that the starting point for interpreting a 
statute is the language of the statute itself.

447 U.S. at 108, 100 S.Ct. 2051, 64 L.Ed.2d at 773.
Four years later, in furtherance of this concept of construction, 

the Court held in Escondido Mut. Water Co. v. La Jolla Indians, 
466 U.S. 765, 104 S.Ct. 2105, 80 L.Ed.2d 753 (1984):

Since it should be generally assumed that Congress 
expresses its purposes through the ordinary mean­
ing of the words it uses, we have often stated that 
“ ‘[a]bsent a clearly expressed legislative intention 
to the contrary, [statutory] language must ordinarily 
be regarded as conclusive.’ ”

466 U.S. at 772, 104 S.Ct. 2105, 80 L.Ed.2d at 761 (citations 
omitted).

And in Dickerson v. New Banner Institute, Inc., 460 U.S. 
103, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983), the Court said: 

[W]e state once again the obvious when we note 
that, in determining the scope of a statute, one is to 
look first at its language * * * * If the language is 
unambiguous, ordinarily it is to be regarded as 
conclusive unless there is “ ‘a clearly expressed 
legislative intent to the contrary.’ ”

460 U.S. at 110, 103 S.Ct. 986, 74 L.Ed.2d at 853 (citations 
omitted).

The term “representatives” refers to those who serve a 
specialized constituency and whose role is to represent the 
needs and interests of that constituency. The term “represen­
tatives” has never been commonly accepted as including the 
judicial branch; indeed, the reverse is true -  namely, the 
judicial branch always has been treated as separate and dis­
tinct from the two representative arms of government.

A representative of a district, be it federal, state, or local, 
exists to serve and favor his or her constituency, while also



16

working for the good of the governmental jurisdiction as a 
whole. United States representatives are expected to help 
obtain government contracts for their districts; no one, how­
ever, would expect a federal judge to uphold such a contract 
citing as a reason the need of his area for governmental 
business. State legislators are expected to seek bridges and 
roads for their districts; no one, however, would expect a state 
judge to mandate that such bridges and roads be built merely 
because the people want them. City councilmen are expected 
to promote drainage projects for their council district; no one, 
however, would expect a city judge to require them to keep 
his voters happy.

Judges thus are not representatives; further, they should 
not be representatives. The larger the constituency, the less 
parochial pressures can be brought to bear. An advantage to 
at-large elections for judges is that judges can make the 
difficult decisions without undue fear of dissatisfaction in the 
electorate. A judge would be much less likely to vote against 
the residents of a neighborhood on a zoning issue if that judge 
was elected solely by that neighborhood. Justice ought to be 
identical throughout a judicial system; electing judges from 
neighborhoods, however, might make for a system of individ­
ualized justice currently foreign to the United States. Admit­
tedly, many problems could be cured on appeal; however, it 
can be extremely difficult to reverse a detailed record of fact­
finding even when the facts have been slanted. Further, the 
petitioners here seek to make appellate districts smaller also, 
again lessening the number and mix of a judge’s electorate.

Congress, had it wanted specifically to include judges 
under Section 2(b) of the Voting Rights Act, could have done 
so by substituting the term “elected official” for the term 
“representative”; it did not do so. In a representative form of 
government, such as ours, it is always true that a “representa­
tive” is an “elected official”; however, the converse is not 
always true.

Representatives have a constituency which numbers in 
the hundreds to hundreds of thousands, to each of whom they 
owe fidelity and from many of whom they are likely, sooner 
or later, to receive correspondence or a telephone call or even



17

perhaps a personal visit. Judges have but one constituency, 
the blindfolded lady with the scales and sword.

F. The Fundamental Difference Between “represen­
tatives” and Members of the Judiciary is Deeply 
Rooted in this Country’s History.

In holding that “the judiciary serves no representative 
function whatsoever,” 914 F.2d at 625, the LULAC Court 
quoted Professor Eugene Hickok as stating that, “The judici­
ary occupies a unique position in our system of separation of 
powers, and that is why the job of a judge differs in a 
fundamental way from that of a legislator or executive.” 
Hickok, “Judicial Selection: The Political Roots of Advice 
and Consent” in Judicial Selection: Merit, Ideology and Poli­
tics 5 (National Legal Center for the Public Interest 1990), 
quoted at 914 F.2d at 926.

Other scholars have also recognized this difference. Pro­
fessor G. Edward White has written in The American Judicial 
Tradition that the American judicial tradition emerged with 
Chief Justice John Marshall.6 A core element of that tradition 
has always included “a measure of true independence and 
autonomy for the appellate judiciary from the other two 
branches of government.” Judicial Tradition 9. Professor 
White summarized Chief Justice Marshall’s views concerning 
the judiciary as follows:

An independent judiciary was logically the ultimate 
necessity in Marshall’s jurisprudence, the culmina­
tion of his beliefs about law and government. He 
sought to show that judicial independence was not 
merely a side effect of federalism but a first princi­
ple of American civilization * * * * Against the 
potential chaos attendant on mass participatory 
democracy, republicanism erected the institutional 
buffers of legislative representatives and an inde­
pendent judiciary. The excesses of the people were 
moderated by representation, a process by which

6 Citations are hereinafter abbreviated as Judicial Tradition. Page 
references refer to the 1978 Oxford University Press paperback edition.



18

their passionate demands were reformulated by an 
enlightened and reasonable class of public servants.
The need of the populace for an articulation of their 
individual rights under law was met by the presence 
of a body of judges not beholden to the masses in 
any immediate, partisan sense.

Judicial Tradition 18, 20.
Chief Justice Marshall’s vision of the American judicial 

tradition was not unique. Alexander Hamilton “envisaged 
judicial review as an exercise in politics through which an 
independent judicial elite could temper the democratic 
excesses of legislatures by affirming the republican political 
balances inherent in the Constitution.” Judicial Tradition 24. 
Some of the Founding Fathers thought an independent judici­
ary necessary because “even a government made up of the 
people’s representatives was not a sufficient buffer against the 
excesses of the mob.” Judicial Tradition 320.

This American judicial tradition has also been applicable 
to the state judiciary. Professor White commented that the 
state constitutions “were patterned on the federal Constitu­
tion, with its tripartite division of powers.” Judicial Tradition 
109. James Kent, Chief Judge of the New York Supreme 
Court and later Chancellor of New York, “viewed the judici­
ary as a buffer between established wealth and the exces­
sively democratic legislature.” Judicial Tradition 112. Much 
more recently, Chief Justice Roger Traynor of the California 
Supreme Court wrote that judges “enjoyed a ‘freedom from 
political and personal pressures and from adversary bias’ [and 
that] [tjheir ‘environment for work’ was ‘independent and 
analytically objective.’ ” Judicial Tradition 296, quoting 
Traynor, “Badlands in an Appellate Judge’s Realm of Rea­
sons,” 7 Utah L.Rev. 157, 167, 168 (1960).

Professor White traced “modern liberalism” trends 
throughout the Twentieth Century. According to this political 
theory, judges “were not, by and large, representatives of the 
people, and their nonpartisan status insulated them from the 
waves of current opinion.” Judicial Tradition 320. Legisla­
tures, on the other hand, “were ‘representative of popular 
opinion’ and could ‘canvass a wide spectrum of views.’ ”



19

Judicial Tradition 322. One Twentieth Century Justice, Felix 
Frankfurter, has called the judiciary the “antidemocratic, unrepre­
sentative” branch of government.” Judicial Tradition 367.7

Various legal theorists have also stated that judges are 
not “representatives.” Perhaps the most provocative book to 
appear on judicial review during the last few years is Democ­
racy and Distrust by Professor John Hart Ely.8 Professor Ely 
contrasts the role of the courts with the role of the representa­
tive branch of government, the legislative branch. He sought 
an approach to judicial review “not hopelessly inconsistent 
with our nation’s commitment to representative democracy.” 
Democracy and Distrust 41. In his book, Professor Ely devel­
oped a representation-reinforcing theory of judicial review in 
which the non-representative branch (the judiciary) would 
review legislation to determine the motivation of the repre­
sentative branch (the legislature) to make sure that the views 
of all groups were represented in lawmaking. He concluded 
by stating that “constitutional law appropriately exists for 
those situations where representative government cannot be 
trusted.” Democracy and Distrust 183.

Professor Alexander Bickel spoke of the importance of judi­
cial independence in The Supreme Court and the Idea of Progress.9

The restraints of reason tend to ensure also the 
independence of the judge, to liberate him from the 
demands and fears -  dogmatic, arbitrary, irrational, 
self-or group-centered, -  that so often enchain other 
public officials. They make it possible for the 
judge, on some occasions, at any rate, to oppose

7 Professor Lawrence Friedman also has written about the history of 
a strong, independent judiciary in both federal and state governmental 
systems. L. Friedman, A History of American Law 116, 118 (Simon & 
Schuster 1973 paperback edition).

8 Page references are to the 1980 Harvard University Press hard­
bound edition.

9 Citations are hereinafter abbreviated as Supreme Court and Pro­
gress. Page references refer to the 1978 Yale University Press paperback 
edition.



20
against the will and faith of others, not merely his own 
will or deeply-felt faith, but a method of reaching 
judgments that may command the allegiance, on a sec­
ond thought, even of those who find a result disagree­
able. The judge is thus buttressed against the world, but 
what is perhaps more significant and certain, against 
himself, against his own natural tendency to give way 
before waves of feeling and opinion that may be as 
momentary as they are momentarily overwhelming.
* * * *

The independence of the judges is an absolute 
requirement if individual justice is to be done, if a 
society is to ensure that individuals will be dealt 
with in accordance with duly enacted policies of the 
society, not by the whim of officials or of mobs, and 
dealt with evenhandedly, under rules that would 
apply also to others similarly situated, no matter 
who they might be.

Supreme Court and Progress 82, 84.
Professor Bickel contrasted the Court with the people and 

its representatives, stating, “Virtually all important decisions 
of the Supreme Court are the beginnings of conversations 
between the Court and the people and their representatives.” 
Supreme Court and Progress 91.10

G. The “dichotomy” between Sections 2 and 5 of 
the Voting Rights Act.

The petitioners argue on pages 12-13 of the Petition that 
there is a dichotomy between Section 2 and Section 5 of the 
Voting Rights Act because the Attorney General is barring 
creation of new at-large judgeships in Louisiana based on 
Section 5 objections. Of course, the Section 5 question is the

10 Supreme Court and Progress also contains much material on 
reapportionment. Supreme Court and Progress 35, 158-59, 168-73. Never 
in that discussion is there any intimation that reapportionment requires 
judicial redistricting. Indeed, such a notion would run counter to Pro­
fessor Bickel for his strong arguments for judicial independence.



21

subject of another case before this Court.11 At any rate, the 
Justice Department’s position apparently is not that the addi­
tion of a new judge in a judicial district was a change made 
because of racial animus, but instead that the Justice Depart­
ment is opposed to the at-large system of electing judges, a 
system in effect in Louisiana since 1946, see LA. R.S. 
13:582-585, predating by decades the Voting Rights Act of 
1965. See Beer v. United States, 425 U.S. 130, 139, 96 S.Ct. 
1357, 47 L.Ed.2d 629, 638 (1976).

At the hearing before the three judge court in Clark on 
October 18, 1990, the Justice Department steadfastly refused 
to explain why it was not preclearing the additional seats even 
though the Department stated in writing that its objection was 
“not to the number of judges per se”, Appendix 2, and that it 
did not question the State of Louisiana’s “need for or purpose 
in creating new judgeship positions.” Appendix 12. Instead, 
as is clear by the September 17, 1990, letter, Appendix 11, the 
Justice Department objects to Louisiana’s long-standing sys­
tem of electing judges, and instead prefers other “systems” 
such as limited voting.11 12

11 On December 14, 1990, these same petitioners filed a Jurisdic­
tional Statement to review a three-judge court opinion in this case. Clark 
v. Roemer, No. 90-952. That matter is pending.

12 Limited voting is a system under which each voter cannot vote 
for every position on the ballot. For example, if there were ten positions 
to be elected in an area with a 40% minority population, limited voting 
would give each voter only four votes. Therefore, imposition of a limited 
voting system would itself appear to violate the provisions of the Voting 
Rights Act, which provides that nothing in the Act “shall be construed to 
deny, impair, or otherwise adversely affect the right to vote of any person 
registered to vote under the law of any State or political subdivision. 42 
U.S.C. § 1973n. Further, limited voting has been uniformly rejected as a 
judicial remedy in Voting Rights Act cases. In Martin v. Mabus, 700 F. 
Supp. 327 (S.D. Miss. 1988), a Voting Rights Act case involving the 
judiciary, the district court called it “experimental,’' “contrary to most 
election laws of Mississippi and the policy contained therein, and

(Continued on following page)



22

While the Justice Department cannot “unpreclear” the seats it 
has previously approved, a total of 222 judgeships out of a 
judiciary consisting of 240 judges, and while its current objections 
affect only 18 seats in 11 judicial districts, the Justice Department 
candidly concedes that it seeks to uproot and destroy the entire 
Louisiana judicial election system.13 By ignoring the decision in 
this case that the Louisiana “system” of electing judges cannot 
violate Section 2 of the Voting Rights Act, by ignoring the precepts 
in Thornburg v. Gingles, 478 U.S. 30, 56, 106 S.Ct. 2752, 92 L.Ed. 
25, 50 (1986), which holds that any remedy under Section 2 must 
be district-specific and not systemic, and by ignoring the LULAC 
decision, the Justice Department’s position flies in the face of 
judicial authority and violates its own internal rule requiring that 
preclearance detemiinations be guided by relevant federal judicial 
decisions. See 28 C.F.R. Ch. 1 (7-1-89 Edition) § 5.56.

If there is a “dichotomy” between Sections 2 and 5,14 it is 
caused not by the eminently correct decision in this case and 
LULAC, but rather by the attempt of the Justice Department to 
rewrite Section 5 while depriving Louisiana of desperately 
needed judges in areas of the State concerning which the 
lower court held there is no Section 2 violation, and through

(Continued from previous page)
“contrary to most general concepts of a democratic two-party system.” Id. 
at 337. Limited voting for judges was held violative of the Pennsylvania 
Constitution in Mezvinsky v. Davis, 459 A.2d 307 (Pa. 1983). Uncontested 
evidence during the remedy phase of this case showed that limited voting 
has been adopted as a “system” in only approximately 200 of the more 
than 86,000 local governmental units in this country. Cumulative voting 
means one can cast votes numerically dependent upon the total number of 
elective positions. For instance, if a Parish has 14 district judges then a 
voter can cast all 14 votes for one of these district judges.

13 See Appendix 4-16.
14 That there are differences between Sections 2 and 5 of the Voting 

Rights Act is no surprise. For example, a Section 2 violation can exist 
even when the affected jurisdiction has received Section 5 preclearance, 
and the “results test” was added in 1982 to Section 2, although that same 
change was not made in Section 5.



an election process which LULAC holds cannot violate Sec­
tion 2.15

It is not Louisiana’s position that Section 5 is completely 
inapplicable to the judiciary any more than it is Louisiana’s 
position that Section 2 is completely inapplicable to the 
judiciary. If a state passed a statute imposing a poll tax for 
judicial elections, or allowing only voters of one race to vote 
for judicial officials, such laws would violate both Section 2 
and Section 5, as well as the Fourteenth and Fifteenth Amend­
ments. No such intentional discrimination is claimed in this 
case by the Justice Department. When, as here, however, a 
law simply adds a much-needed judicial seat to a multi- 
member district, in the absence of discriminatory intent such 
a statute is not covered by either Section 2 (because the 
“results test” is inapplicable to the judiciary) or by Section 5 
(because Section 5 cannot be used as a guise to preclude a 
state from adding a judicial seat when such a seat cannot be 
enjoined under Section 2).

II. IF THE ONE-MAN, ONE-VOTE REQUIREMENT 
DOES NOT APPLY TO THE JUDICIARY, THE 
CONCEPT OF MINORITY VOTE DILUTION SET 
FORTH IN § 2(B) DOES NOT APPLY TO THE 
JUDICIARY.
This Court has held that the one-man, one-vote require­

ment does not apply to the judiciary. Wells v. Edwards, 409 
U.S. 1095, 93 S.Ct. 904, 34 L.E.2d 679 (1973). If this require­
ment is inapplicable, the concept of minority vote dilution in 
at-large districts is similarly inapplicable to the judiciary. As 
the Fifth Circuit held in LULAC:

23

15 Indeed, if there is a “dichotomy” in the applicability of the Voting 
Rights Act to Louisiana’s judiciary, it is in the Justice Department’s 
inconsistent treatment of additional judgeships. In two letters dated 
September 17, 1990, the Justice Department stated that portions of Act 8 
of 1990 adding judgeships would not be precleared, but other portions of 
the same statute adding judgeships were precleared. Compare Appendix 
4, 12 and 16 with Appendix 19.



24

Absent the one-person, one-vote rule -  that the vote 
of each individual voter must be roughly equal in 
weight to the vote of every other individual voter, 
regardless of race, religion, age, sex, or even the 
truly subjective and uniquely individual choice of 
where to reside -  there is no requirement that any 
individual’s vote weigh equally with that of anyone 
else. This being so, and no such right existing, we 
can fashion no remedy to redress the non-existent 
wrong complained of here.

The notion of individual vote dilution, first 
developed by the Supreme Court in Reynolds v.
Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 
(1964), was the foundation for the concept of 
minority vote dilution to be later elaborated in 
Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858,
29 L.Ed.2d 363 (1971), White v. Regester, [412 
U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973)], 
and Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 
1973). Individual vote dilution was remedied by the 
Court through the concept of one-person, one-vote 
-  the guarantee of substantial equality among indi­
vidual voters. With that guarantee in mind, remedial 
schemes to combat minority vote dilution were 
devised on a case by case basis.

914 F.2d at 627 (emphasis in original). The Senate Report 
concerning the 1982 amendment to the Voting Rights Act 
states “[t]he principle that the right to vote is denied or 
abridged by dilution of voting strength derives from the one- 
person, one-vote reapportionment case of Reynolds v. Sims.” 
S.Rep.No. 417, 97th Cong. 2d Sess., reprinted in 1982 U.S. 
Code Cong. & Admin. News at 177, 196.

The key issue, therefore, is whether Section 2(b) of the 
Voting Rights Act enshrines the “one-man, one-vote” princi­
ple as the touchstone test. If it does, then it cannot be used to 
analyze judicial elections, because the “one-man, one-vote” 
test was expressly rejected as applying to the judiciary in 
Wells v. Edwards, 347 F.Supp. 453 (M.D. La. 1972), affirmed 
409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed,2d 679 (1973).

The express language of the plurality opinion in Gingles, 
bolstered by the language of the concurring opinions, shows



25

that Section 2(b) is solely a “one-man, one-vote” litmus test. 
Justice Brennan, in speaking for the plurality, began by noting 
that when Section 2 of the Voting Rights Act was amended in 
1982 to add Section 2(b), the Congressional revision was a 
response to the plurality opinion in Mobile v. Bolden, 478 
U.S. at 35, 106 S.Ct. at 2759, 92 L.Ed.2d at 37. The plurality 
in Gingles, in interpreting what evidence it takes under Sec­
tion 2(b) to prove a Section 2(a) violation, established a 
three-fold test:

First, the minority group must be able to demonstrate 
that it is sufficiently large and geographically compact 
to constitute a majority in a single-member dis­
trict. * * * Second, the minority group must be able to 
s how t h a t  i t  is p o l i t i c a l l y  c o h e s i v e .
* * * Third, the minority must be able to demonstrate 
that the white majority votes sufficiently as a bloc to 
enable it, -  in the absence of special circumstances, such 
as a minority candidate running unopposed * * * usually 
to defeat the minority’s preferred candidate * * * * In 
establishing this last circumstance, the minority group 
demonstrates that the submergence in a white multi­
member district impedes its ability to elect its chosen 
representatives.

478 U.S. at 50-51, 106 S.Ct. at 2766-67, 92 L.Ed.2d 46-47.
As Justices O’Connor, Powell, Rehnquist, and Chief Jus­

tice Burger recognized in their concurring opinion in Gingles, 
this three-fold test equates to a requirement of proportional 
representation; i.e., one-man, one-vote. Justice O’Connor, 
speaking for these Justices, stated:

Third, although the Court does not acknowledge it 
expressly, the combination of the Court’s definition of 
minority voting strength and its test for vote dilution 
results in the creation of a right to a form of propor­
tional representation in favor of all geographically and 
politically cohesive minority groups that are large 
enough to constitute majorities if concentrated within 
one or more single-member districts.

478 U.S. at 85, 106 S.Ct. at 2784-2785, 92 L.Ed.2d at 69. 
In my view, the Court’s test for measuring minority 
voting strength and its test for vote dilution, operating in



2 6

tandem, come closer to an absolute requirement of 
proportional representation than Congress intended 
when it codified the results test in § 2.

478 U.S. at 94, 106 S.Ct. at 2789, 92 L.Ed.2d at 74.
The Court’s standard for vote dilution, when combined 
with its test for undiluted minority voting strength, 
makes actionable every deviation from usual, rough, 
proportionality in representation for any cohesive minor­
ity group as to which this degree of proportionality is 
feasible within the framework of single-member dis­
tricts. Requiring that every minority group that could 
possibly constitute a majority in a single-member dis­
trict be assigned to such a district would approach a 
requirement of proportional representation as nearly as 
is possible within the framework of the single-member 
districts. Since the Court’s analysis entitles every such 
minority group usually to elect as many representatives 
under a multi-member district school, it follows that the 
Court is requiring a form of proportional representation.

478 U.S. at 97, 106 S.Ct. at 279, 92 L.Ed.2d at 76-77 
(emphasis supplied).

Justice O’Connor, and the other Justices who joined in 
her concurring opinion, recognized that proportional repre­
sentation (one-man, one-vote) is the result of the plurality’s 
opinion. It was exactly this type of proportional representa­
tion that the plurality in Mobile v. Bolden had rejected in its 
analysis of both Section 2 (pre-1982 amendments) and the 
Fourteenth and Fifteenth Amendments:

The theory of [Justice Marshall’s] dissenting opin­
ion -  a theory much more extreme than that 
espoused by the District Court or the Court of 
Appeals -  appears to be that every “political 
group,” or at least every such group that is a minor­
ity, has a federal constitutional right to elect candi­
dates in proportion to its numbers. * * *
Whatever appeal the dissenting opinion’s view may 
have as a matter of political theory, it is not the law.

446 U.S. at 75, 100 S.Ct. at 1504, 64 L.Ed.2d at 63-64.



27

The plurality in Mobile recognized that what is now 
Section 2(a) does not require a “proportionality” test. Section 
2(a) was not substantially changed in the 1982 amendments. 
Thus, if Section 2(b) establishes a “one-man, one-vote” test, 
then under Wells it cannot be used against the judiciary.

The petitioners may take the position that there is a 
distinction between a “proportionality” test and a “one-man, 
one-vote” test. Such an argument would be unavailing, as the 
plurality opinion in Mobile v. Bolden expressly recognized.

After discussing (and rejecting) the dissent’s argument 
concerning proportionality, the plurality in Mobile went fur­
ther and determined that the “proportionality” argument equa­
ted to a “one-man, one-vote” test.

The dissenting opinion erroneously discovers the 
asserted entitlement to group representation within 
the “one person, one vote” principle of Reynolds v. 
Sims, supra, [377 U.S. 533, 84 S.Ct. 1362, 12 
L.Ed.2d 506 (1964)] and its progeny.

446 U.S. at 77, 100 S.Ct. at 1505, 64 L.Ed.2d at 65. As 
Mobile v. Bolden recognized, the term “vote dilution” is 
equivalent to holding that there is a “one-man, one-vote” test. 
446 U.S. at 78, 100 S.Ct. at 1505, 64 L.Ed.2d at 65-66. As the 
plurality in Mobile v. Bolden stated:

There can be, of course, no claim that the “one- 
person, one-vote” principle has been violated in this 
case * * * it is therefore obvious that nobody’s vote 
has been “diluted” in the sense in which that word 
was used in the Reynolds case.

It is, of course, true that the right of a person to vote on 
an equal basis with other voters draws much of a 
significance from the political associations that its exer­
cise reflects, but it is an altogether different matter to 
conclude that political groups themselves have an inde­
pendent constitutional claim to representation.

446 U.S. at 78, 100 S.Ct. 1505, 1507, 64 L.Ed.2d at 65, 66.
Because Gingles involves only the interpretation of Sec­

tion 2(b), and because Wells prohibits the use of a “one-man, 
one-vote” test involving judicial elections, it is clear that the



28

Section 2(b) results test cannot be used to prove a violation of 
Section 2(a) in judicial elections.

The concept of dilution of group voting strength [which 
is embodied in subsection (b) of amended Section 2] rests on 
two assumptions: (1) that each person’s vote should have the 
same weight as another person’s vote, and (2) that a given 
(protected) group should wield roughly the aggregate voting 
strength of its members. See Zimmer v. McKeithen, 485 F.2d 
1297, 1303 (5th Cir. 1973). If the first assumption is not true, 
the second cannot be made. For without the assumption of 
substantial equality among voting shares made possible by the 
one-man, one-vote principle, no aggregate measure of minor­
ity voting strength -  and therefore no measure of dilution of 
that strength -  is conceivable. Because the one-man, one-vote 
rule does not apply to the judiciary, the conceptually depen­
dent notion of minority group vote dilution, embodied in 
subsection (b), has no field of operation in judicial elections.

This argument has nothing to do with statutory inter­
pretation, does not depend on a particular construction of the 
word “representative” as used in subsection (b), and is not 
based on whether Congress intended that amended Section 2 
have some field of operation with respect to judicial elec­
tions. It is, instead, based on an explanation of why, regard­
less of what breadth Congress intended for amended Section 
2, minority group vote dilution -  as that concept has devel­
oped in the voting rights jurisprudence -  simply cannot exist 
unless the one-man, one-vote rule applies.

Thornburg v. Gingles, the Court’s definitive exegesis of 
Section 2 vote dilution, sharpens this point. In her concurring 
opinion, Justice O’Connor, joined by Powell, Rehnquist, and 
Chief Justice Burger, notes that “[i]n order to evaluate a claim 
that a particular multimember district or single-member dis­
trict has diluted the minority group’s voting strength to a 
degree that violates § 2 . . .  it is . .  . necessary to construct a 
measure of ‘undiluted’ minority voting strength.” Gingles, 
478 U.S. at 88, 106 S.Ct. 2786, 92 L.Ed.2d at 71. There is no 
doubt that the yardstick adopted by the Gingles Court -  a 
calculation of the minority’s potential voting strength in a 
single-member district system -  rests on the assumption that



29

the one-man, one-vote rule applies and that each district has 
roughly the same population. See 478 U.S. at 50-51 n. 17, 
89-90, 106 S.Ct. 2766-67 n. 17, 2787, 92 L.Ed.2d at 46-47 
n.17, 72. Otherwise, to paraphrase Justice Harlan, the Court 
would be unable even to measure what it purports to equalize. 
Whitcomb v. Chavis, 403 U.S. at 169, 91 S.Ct. 1883, 29 
L.Ed.2d at 391 (Harlan J., separate opinion).

Without the measure of individual voting strength provided in 
legislative cases by the one-man, one-vote rule, Gingles’ first 
prong is meaningless in the judicial context. It is always possible to 
construct a geographically compact black voting majority district 
by continuing to reduce the total population in that district down to, 
if necessary, a minimum of one. There are no “judicially discem- 
able and manageable standards” by which a court could find that a 
given judicial election system does not dilute minority voting 
strength if the population size of the hypothetical single-member 
subdistrict can be contracted or expanded at will. See Baker v. 
Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663, 686 (1962). 
As one lower court has held, “An effort to apply a population 
standard to the judiciary would, in the end, fall of its own weight.” 
Stokes v. Fortson, 234 F. Supp. 575, 577 (N.D. Ga. 1964).

CONCLUSION
This Court has always recognized the importance of an inde­

pendent judiciary, holding in Chandler v. Judicial Council, 398 
U.S. 74, 90 S.Ct. 1648, 26 L.Ed.2d 100 (1970): “There can, of 
course, be no disagreement among us as to the imperative need for 
total and absolute independence of judges in deciding cases or in 
any phase of the decisional function.” 398 U.S. at 84, 90 S.Ct. 
1648, 26 L.Ed.2d at 108. In a dissent in the same case, Justice 
Douglas stated, “An independent judiciary is one of this Nation’s 
outstanding characteristics.” 398 U.S. at 136, 90 S.Ct. 1648, 26 
L.Ed.2d at 137 (Douglas, J., dissenting).

A quarter of a century ago this Court declared, “Legislators 
represent people, not trees or acres.” Reynolds v. Sims, 377 U.S. 
533, 562, 84 S.Ct. 1362, 12 L.Ed.2d 506, 527 (1964). Unlike 
legislators, judges are not “instruments of government elected 
directly by and directly representative of the people.” 377 U.S. at



30

562, 84 S.Ct. 1362, 12 L.Ed.2d at 527. Making judges representa­
tives would do violence to (and perhaps destroy) the American 
concept of an independent judiciary.

For the reasons set forth herein, this Court should deny the 
Petition for Certiorari.

All of the above and foregoing is thus respectfully sub­
mitted.

Robert G. Pugh 
Counsel of Record 

Robert G. Pugh, Jr.
Of the Law Firm of 
Pugh, Pugh & Pugh 

Commercial National Tower, Suite 2100 
333 Texas Street 

Shreveport, LA 71101-5302 
(318) 227-2270

John N. Kennedy 
Special Counsel to the Governor 
Thomas A. Casey 
Executive Counsel to the 

Governor
Office of the Governor 
Fourth Floor 
State Capitol Building 
Baton Rouge, Louisiana 70804 
(504) 342-7015

Attorneys for and on behalf of 
Charles "Buddy" Roemer 
Governor of Louisiana

Michael H. Rubin
Christina B. Peck
Rubin, Curry, Colvin & Joseph
Ninth Floor
One American Place
Baton Rouge, Louisiana 70825
(504) 383-9000

Attorneys for the Louisiana 
District Judges Association

Kenneth C. Dejean 
First Assistant Attorney General 
Louisiana Department of Justice 

Office of the Attorney General 
Second Floor 
State Capitol
Baton Rouge, Louisiana 70804 
(504) 342-7014

Attorney for and on behalf of 
William J. Guste, Jr.
Attorney General of Louisiana

Cynthia Young Rougeou 
Special Counsel to the 
Secretary of State 
State of Louisiana 
Post Office Box 94125 
Baton Rouge, Louisiana 70804 
(504) 342-2065

Attorney for and on behalf of 
Fox McKeithen Secretary of State 
of Louisiana



App. 1

[SEAL]
U.S. Department of Justice 

Civil Rights Division

Office of the
Assistant Attorney General Washington, D.C. 20530

OCT 9 1990
Cynthia Y. Rougeou, Esq.
Assistant Attorney General 
P.O. Box 94125
Batpn Rouge, Louisiana 70804-9125 

Dear Ms. Rougeou:

This refers to your request that the Attorney General 
reconsider the September 23, 1988, objection under Sec­
tion 5 of the Voting Rights Act of 1965, as amended, 42 
U.S.C. 1973c, to the voting changes identified in Attach­
ment A for the State of Louisiana. We received your 
request on August 10, 1990.

Under the Procedures for the Administration of Sec­
tion 5 of the Voting Rights Act of 1965, an objection shall 
be w ithdrawn "if the Attorney General is satisfied that 
the change does not have the purpose and will not have 
the effect of discriminating on account of race, color, or 
membership in a language minority group." 28 C.F.R. 
§ 51.48(b). In its request for reconsideration the State of 
Louisiana has offered no new information or arguments 
to show that the electoral method by which its additional 
judges will be elected is not racially discriminatory. 
Rather, it appears that the State seeks a clarification of the 
reach of the Attorney General's objection.



App. 2

In that regard, we iterate here what we sought to 
make clear in our September 23, 1988, objection letter, 
that our concerns under Section 5 went to the proposed 
method of electing judges and not to the number of 
judges per se. As we have suggested previously on a 
number of occasions, adoption by the State of a racially 
fair election scheme would provide an appropriate basis 
for w ithdrawing the objection. Until such time as the 
objection is w ithdrawn, however, the State may not law­
fully implement any part of the process for electing those 
judicial positions which are the subject of outstanding 
Section 5 objections. See NAACP v. Hampton County Elec­
tion Commission, 460 U.S. 166 (1985).

Under these circumstances, then, we see no basis for 
altering our earlier conclusions in this matter. Accord­
ingly, on behalf of the Attorney General, I must decline to 
withdraw the September 23, 1988, objection.

Of course, in making this determination, we are cog­
nizant of the recent decision of the Fifth Circuit Court of 
Appeals in LULAC v. Mattox, No. 90-8014 (5th Cir. Sep­
tember 28, 1990) (en banc) and we are studying the court's 
decision in that case to determine how, if at all, it may 
impact upon our enforcement responsibilities under the 
Voting Rights Act. However, we feel a responsibility to 
point out that we do not presently see that decision as 
immediately affecting the previously interposed objec­
tions to judicial elections in Louisiana.

Sincerely,
/ s /  John R. Dunne 

John R. Dunne 
Assistant Attorney General 
Civil Rights Division



App. 3

Judicial
District
Court
Districts

1st

4th

9th

14th

15th

18th

ATTACHMENT A

Voting Changes

Act 117 (1973), which creates an addi­
tional judgeship and a special election 
therefor
Act 480 (1970), which creates an addi­
tional judgeship position
Act 19 (1974), which creates an additional 
judgeship and a special election therefor
Act 40 (1967), which creates an additional 
judgeship and a special election therefor
Act 332 (1975), which creates an addi­
tional judgeship and a special election 
therefor
Act 322 (1980), which creates an addi­
tional judgeship
Act 360 (1970), which creates an addi­
tional judgeship and a special election 
therefor
Act 43 (1976), which creates an additional 
judgeship
Act 322 (1980), which creates an add i­
tional judgeship
Act 86 (1968), which creates an additional 
judgeship and a special election therefor



App. 4

[SEAL]
U.S. Department of Justice 

Civil Rights Division

Office of the
Assistant Attorney General Washington, D.C. 20530

SEP 17 1990
Cynthia Y. Rougeou, Esq.
Assistant Attorney General 
State of Louisiana 
P.O. Box 94125
Baton Rouge, Louisiana 70804-9125 

Dear Ms. Rougeou:

This refers to your request that the Attorney General 
reconsider and w ithdraw the September 23, 1988, and 
May 12, 1989, objections under Section 5 of the Voting 
Rights Act of 1965, as amended, 42 U.S.C. 1973c, to the 
voting changes identified in Attachment A for the State of 
Louisiana. We received your requests on June 19 and 26 
and A ugust 10, 1990; supplem ental inform ation was 
received July 12 and 17, 1990.

This also refers to the voting changes identified in 
Attachment B for the State of Louisiana, submitted to the 
Attorney General pursuant to Section 5. We received your 
submission of Act 8 (1990) on June 19, 1990; supplemental 
information concerning those changes was received June 
26 and July 12 and 17, 1990. We received the information 
to complete your submission of the remaining changes 
identified in Attachment B on July 17, 1990.



App. 5

At the outset we begin with a recitation of some of 
the events which have preceded our review of all the 
voting changes which are before us today because those 
events play an im portant part in our consideration of 
these matters. You may recall that in 1987, we sent the 
State a num ber of letters requesting information concern­
ing numerous voting changes within judicial election cir­
cuits and districts in Louisiana, including a request that 
the State respond to allegations that the method of elect­
ing trial and appellate court judges discriminated against 
minority voters. The State, however, failed to respond to 
our requests.

Meanwhile, in 1988, the court in Clark v. Edwards -  a 
suit brought in 1986 by private plaintiffs challenging the 
method of electing judges in Louisiana -  found that the 
method of electing trial and appellate court judges pro­
duced a "systemic" violation of Section 2 of the Voting 
Rights Act. By the time of the court's 1988 decision, the 
State still had not supplied us with the additional infor­
mation we needed to analyze the voting changes in judi­
cial circuits and d istric ts  then  pending  before us. 
Consequently, we used the record and findings from the 
Clark lawsuit to analyze the voting changes that were 
then pending before us for Section 5 review. On Septem­
ber 23, 1988, an objection was interposed under Section 5 
of the Voting Rights Act.

In 1989, the State again submitted voting changes to 
us for Section 5 review and, there again, sought Section 5 
preclearance of voting changes in judicial circuits and 
districts that had been found by the court in Clark to be 
racially discriminatory or had otherwise been the subject 
of the Section 5 objection interposed in 1988. Thus, on



App. 6

May 12, 1989, a Section 5 objection was interposed to the 
implementation of those changes.

Later that year, in the summer of 1989, the State 
adopted a new election scheme, intended to remedy both 
the Section 2 violations found by the Clark court and the 
Section 5 objections interposed by the Attorney General 
in 1988 and 1989. However, because the proposed system 
created new senior judgeship positions in an apparent 
effort to accommodate and protect incumbent judges who 
might otherwise lose their seats if a racially fair election 
scheme were put in place, it required the approval of the 
voters in a state-wide referendum. As you know, that 
proposed scheme was disapproved by the voters in a 
November 1989 referendum.

Remedial proceedings in the Clark lawsuit were held 
earlier this year and those proceedings culminated in 
additional findings from the court. Clark v. Roemer, No. 
86-435 (M.D. La., Orders of June 12 and July 6, 1990). On 
the basis of those findings alone, the State now seeks 
reconsideration of the previously interposed objections, 
as well as Section 5 preclearance of other voting changes 
which were either never before the court in the Clark 
litigation or were otherwise not before that court in the 
same circumstances as they are before us under Section 5. 
These include the 10th, 24th, 26th and 40th Judicial Dis­
tricts, and the 2nd and 3rd Circuit Courts of Appeal. With 
regard to these judgeship positions and the proposed 
method of election therefor, we find the Clark decision to 
be inapposite because it pertains to factual circumstances 
in a judicial district different from the judicial district 
now before us for Section 5 review.



App. 7

In that regard, we note that the differing factual 
circumstances are not insignificant. For example, one 
aspect of the Clark litigation involved a challenge to the 
method of electing judges in the 26th District. Because the 
State had not obtained Section 5 preclearance of the cre­
ation of a fifth judgeship in that District, the court in 
Clark examined the evidence in the context of four exis­
ting judgeships. Because the State has submitted to us a 
proposal to add a fifth judgeship to the 26th District, 
however, we are reviewing the method of electing judges 
in that district as it would exist if five judges were being 
elected. This distinction is critical because the Clark court 
found that a sample single-member district drawn in that 
District by private plaintiffs did not satisfy the require­
ment under Thornburg v. Gingles, 478 U.S. 30 (1986), that 
the minority group be shown to be sufficiently large and 
geographically compact to constitute a majority in a sin­
gle-member district. As a result, though the at-large mul­
timember structure in the 26th District now has been 
found by the court in Clark not to violate Section 2 
because of that finding, the court properly made no 
determination with regard to the method of election if 
five judges were to be elected from that district.

Another example of how the facts and circumstances 
before us differ from those which were before the court in 
Clark is in the 2nd Circuit Court of Appeal. In the 2nd 
Circuit, the claims before the Clark court involved a chal­
lenge to a mixed election system for seven judges, in 
which one judge was elected at large circuitwide and six 
judges were elected from three double-member districts. 
We, however, are reviewing the creation of additional 
judgeship positions for the 2nd Circuit in the context of



App. 8

proposed changes to the electoral structure: first, to an 
interim scheme of one circuitwide position, one double­
member district and two triple-member districts; and, 
second, to an election scheme that subsequently will be 
comprised of three triple-member districts with at-large 
elections by designated posts, staggered term s, and 
majority vote. Similarly, as to the 3rd Circuit, the Clark 
Litigation involved a challenge to a scheme of three at- 
large circuitwide positions and three double-member dis­
tricts, while we have been asked to assess the creation of 
additional judgeship positions in the context of an elec­
toral structure that provides for three at-large circuitwide 
positions and three triple-member districts.

The fact, then, that the Clark court has vacated some 
of its findings as to a violation under Section 2 does not 
in and of itself afford a basis for withdrawing the objec­
tion under Section 5 to the voting changes involved. 
Indeed, during our reconsideration of the objected-to vot­
ing changes and our review of the additional voting 
changes that you have submitted, you have provided us 
w ith  ad d itio n a l inform ation  concerning the voting 
changes and judicial districts at issue by incorporating 
information contained in certain Section 5 submissions 
that you m ade in 1989 and in response to our requests 
during the current review period. Much of the informa­
tion does not appear to have been before the court in the 
Clark case. For example, in analyzing voting patterns to 
determine whether black voters are politically cohesive 
and whether whites vote sufficiently as a bloc usually to 
defeat the choice of black voters, the court in several 
instances did not have the benefit of any data concerning



App. 9

parishwide election contests or data by parish for con­
tests involving a number of parishes. We have analyzed 
such data, and our analysis indicates a significant degree 
of racially polarized voting in the districts at issue. Also, 
we have been able to analyze information that was not 
before the court concerning the racial identity of feder­
ally-registered voters, as well as demographic and voting 
information concerning modifications to alternative elec­
tion schemes that demonstrate the geographical concen­
tration of black persons in certain judicial districts.

Nor can we overlook the fact that in the face of 
findings of a systemic Section 2 violation by the Clark 
court in 1988, and notwithstanding the interposition of 
far-reaching Section 5 objections in 1988 and 1989, the 
State has failed to adopt a racially fair election system for 
its trial and appellate court judges even though the Clark 
court has given the State ample opportunity to do so. 
While, as noted above, the State did propose a new 
election scheme in 1989, it did so in a way which was 
intended also to protect incumbent judges. It is also par­
ticularly telling that there is nothing in Louisiana law we 
are aware of which would prevent the State from simply 
adopting a racially fair election scheme without incor­
porating referendum requiring provisions such as that 
connected with the earlier proposal aimed at current 
officeholders. Thus, the State's failure and refusal to 
adopt any remedial measures without also seeking to 
protect incumbents, the vast majority of whom are white, 
would appear to be elevating the State's concern for 
protecting w hite incum bents over the vindication of 
minority voting rights.



App. 10

It is also significant that in several judicial districts, 
the State has available to it any number of alternative 
election schemes in which black voters clearly would 
have the opportunity to elect candidates of their choice. 
Yet, the State has not adopted any of these alternatives. 
For example, with regard to the proposed redistricting of 
the 10th District, we note that the State proposes to carve 
out one parish in order to create a new single-member 
judicial district, the 39th District, which has a 36.4 percent 
black population. The State thus chose to divide the 10th 
District in a manner that created one majority-white, 
single-member district, even though a single-member 
judicial district could be created which would have a 
substantial black-majority population. While we are cog­
nizant that the proposed boundary lines apparently are 
based on parishes as the basic building blocks, these lines 
are not jurisdictional in nature but serve merely to outline 
the boundaries of the districts for election purposes. 
Accordingly, strict adherence to this criterion results in 
the dilution of a cohesive black population within the 
proposed new districts. Moreover, the State has deviated 
from this criterion in devising the districts of the 5th 
Circuit Court of Appeal which, inexplicably, the state has 
chosen not to do with regard to the proposed 10th and 
39th Districts.

Similarly, with regard to the 2nd Circuit Court of 
Appeal, which has a 34.2 percent black population, there 
are alternatives for electing the proposed nine judges in 
which black voters would have a realistic opportunity to 
elect candidates of their choice. Also, with regard to the 
3rd Circuit Court of Appeal, which has a 23.7 percent 
black population, available alternatives for the proposed



App. 11

twelve judges would afford black voters the opportunity 
to elect candidates of their choice. As noted in our 1988 
objection letter, such remedial alternatives would not nec­
essarily require the State to draw single-member districts 
in every instance since, in a number of areas, the State 
could retain the multimember system utilizing limited or 
cumulative voting and abandoning the use of the racially 
discrim inatory features such as numbered posts and 
majority vote which enhance dilution is those circuits.

In 1988, the Clark court admonished the State to 
"revise the [judicial election] system -  to cast about for 
alternative procedures under which black voters would 
have a better chance to elect judicial candidates of their 
choice." Clark v. Edwards, 725 F. Supp. 285 (M.D. La. 
1988). So too, in 1988, we informed the State that it had a 
responsibility to consider appropriate remedial adjust­
ments to afford black voters an opportunity to participate 
on an equal basis with white voters and to elect candi­
dates of their choice. Notwithstanding these suggestions, 
the State has steadfastly adhered to the racially discrimi­
natory multimember scheme and has resisted efforts in 
the Clark case to create single-member districts. Yet, as 
noted earlier, single-member districts are not the only 
available remedy. Indeed, our September 23, 1988 letter 
expressly observed that other corrective measure [sic] 
were available to the State, such "as the use of limited or 
cumulative voting schemes and the elimination of restric­
tive election features, such as anti-single shot voting 
devices and the majority vote requirement, that impede 
minority participation." The State has chosen not to avail 
itself of such remedial options.



App. 12

Under Section 5 of the Voting Rights Act, the submit­
ting  au th o rity  has the b u rd en  of show ing th a t a 
subm itted change has no discrim inatory purpose or 
effect. See Georgia v. United States, 411 U.S. 526 (1973); see 
also 28 C.F.R. 51.52. In satisfying its burden, the subm it­
ting authority must dem onstrate that the choices underly­
ing the proposed change are not tainted, even in part, by 
an invidious racial purpose; it is insufficient simply to 
establish that there are some legitimate, nondiscrimina- 
tory reasons for the voting change. See Village of Arlington 
Heights v. Metropolitan Housing Development Corp., 429 
U.S. 252, 265-66 (1977); City of Rome, supra, at 172; Busbee 
v. Smith, 549 F. Supp. 494, 516-17 (D.D.C. 1982); aff'd, 459 
U.S. 1166 (1983). While we do not in any way question the 
State's need for or purpose in creating new judgeship 
positions, we do find ourselves unable to conclude that 
the State has carried its burden of showing the absence of 
the proscribed purpose in its insistence on maintaining 
and expanding the existing dilutive system for electing 
candidates to those positions, a system that has been 
found by the court, or our analysis, to be violative of 
Section 2 of the Voting Rights Act. See, e.g., 28 C.F.R. 
51.55(b). Therefore, on behalf of the Attorney General, I 
must continue the objection to the implementation of the 
changes enumerated in Attachment A and object to the 
changes enumerated in Attachment B.

Of course, as provided by Section 5 of the Voting 
Rights Act, you have the right to seek a declaratory 
judgment from the United States District Court for the 
District of Columbia that the changes do not have the 
purpose and will not have the effect or result of denying 
or abridging the right to vote on account of race or color.



App. 13

In addition, Section 51.45 of the guidelines permits you to 
request that the Attorney General reconsider the objec­
tions. However, until the objections are withdrawn or a 
ju dgm en t f rom the D istric t of C olum bia C ourt is 
obtained, the effect of the objections by the Attorney 
General is to continue the legal unenforceability of the 
changes identified in Attachments A and B. See also 28
C.F.R. 51.10.

Because this m atter remains pending before the court 
in Clark, we are sending a copy of this letter to the court 
and counsel of record in that case.

Sincerely,
/ s /  John R. Dunne 

John R. Dunne 
Assistant Attorney General 
Civil Rights Division

cc: Honorable John V. Parker
Chief Judge, United States District Court
Michael M. Rubin, Esq.
Fred J. Cassibry, Esq.
Robert G. Pugh, Esq.
Kenneth C. Dejean, Esq.
John N. Kennedy, Esq.
Jack C. Benjamin, Esq.
George A. Blair, III, Esq.
Anthony Skidmore, Esq.
Robert P. McLeod, Esq.
Harry Rosenberg, Esq.
Earnest L. Johnson, Esq.
Robert B. McDuff, Esq.
Ulysses Gene Thibodeaux, Esq.



App. 14

ATTACHMENT A

Judicial District
Court Districts Objected-to Voting Changes

6th Act 515 (1974), which creates an addi­
tional judgeship and a special election 
therefor

10th Act 635 (1979), which redistricts the
boundaries of the district

16th Act 104 (1968), which creates an addi­
tional judgeship and a special election 
therefor

Act 56 (1984), which creates an addi­
tional judgeship (Division G)

20th Act 34 (1981), which creates an addi­
tional judgeship

21st Act 9 (1974), which creates an addi­
tional judgeship and a special election 
therefor

Act 56 (1984), which creates an addi­
tional judgeship (Division F)

23rd Act 464 (1968), which creates an addi­
tional judgeship and a special election 
therefor

24th Act 78 (1968), which creates an addi­
tional judgeship and a special election 
therefor

Act 674 (1968), which creates an addi­
tional judgeship

Act 503 (1974), which creates two addi­
tional judgeships and the special elec­
tions therefor



App. 15

27th

29th

Circuit Courts 
of Appeal

First Circuit, 
Districts 2 
and 3

Section Circuit

Third Circuit

Third Circuit, 
Districts 1, 2, 

and 3

Act 158 (1971), which creates an addi­
tional judgeship and a special election 
therefor

Act 94 (1970), which creates an addi­
tional judgeship

Act 56 (1984), w hich recodifies the 
ad d itio n a l judgesh ip  under Act 94 
(1970)

Objected-to Voting Changes

Act 114 (1975), which creates an addi­
tional judgeship in each district and 
special election therefor and provides 
an implementation schedule

Act 114 (1975), which creates an addi­
tional circuitwide judgeship

Act 801 (1987), which creates an addi­
tional circuitwide judgeship and spe­
cial election therefor

Act 114 (1975), which creates an addi­
tional circuitwide judgeship

Act 801 (1987), which creates an addi­
tional judgeship in each district and 
special elections therefor

Act 200 (1987), which changes the spe­
cial election dates under act 801 (1987)



App. 16

ATTACHMENT B 

Judicial Districts Voting Changes
24th Act 8 (1990), which creates an addi-

26th

tional (sixteenth) judgeship

Act 174 (1989), which creates an addi­
tional judgeship

40th Sections 3(A) and 3(B) of Act 611 (1989) 
and Act 608 (1989), which create an 
additional judgeship position (Division 
C)

2nd Circuit, 
Court of 

Appeal

Act 8 (1990), which creates a ninth 
judgeship position to be elected by des­
ignated Division C in 2nd Circuit Dis­
trict 3; provides for a change in method 
of election for 2nd Circuit judges from 
two elected at-large circuitwide and 
two elected from each district by desig­
nated divisions to three elected from 
each district by designated divisions, 
except as specified for the incumbent in 
the at-large position to be converted to 
the Division C position of Second Cir­
cuit District 2; provides that the judge- 
ship position created by Act 801 (1987) 
will be elected as the designated Divi­
sion C position from 2nd Circuit Dis­
trict 1; and provides an implementation 
schedule therefor



App. 17

[SEAL]
U.S. Department of Justice 

Civil Rights Division

Assistant Attorney General Washington, D.C. 20530
SEP 17 1990

Cynthia Y. Rougeou, Esq.
Assistant Attorney General 
P.O. Box 94125
Baton Rouge, Louisiana 70804-9125 
Dear Ms. Rougeou:

This refers to your request that the Attorney General 
reconsider and w ithdraw the September 23, 1988, and 
May 12, 1989, objections under Section 5 of the Voting 
Rights Act of 1965, as amended, 42 U.S.C. 1973c, to the 
following voting changes for the State of Louisiana:

Orleans Parish Criminal District Court: Act 236 
(1972), which creates an additional judgeship 
and a magistrate, and act 143 (1975), which cre­
ates five additional judges and decreases terms 
from twelve years to six years;
Orleans Parish Civil District Court: Act 235 
(1970), which creates an additional judgeship 
position (Division J), and Act 129 (1975), which 
creates five additional judgeships and decreases 
terms from twelve years to six years.

We received your requests on June 19 and 26 and August 
3, 1990; supplem ental information was received July 12 
and 17, 1990.

This also refers to Act No. 8, S.B. No. 345 (1990), to 
the extent that it creates the thirteenth and fourteenth at- 
large judgeships (Divisions M and N) for the Orleans



App. 18

Parish Civil District Court; and provides an implementa­
tion schedule therefor for the State of Louisiana, submit­
ted to the Attorney General pursuant to Section 5. We 
receive your submission on June 19, 1990; supplemental 
information was received July 13 and 17, 1990.

At the outset, we note that when the state originally 
submitted Acts 129 and 143 (1975), the submissions char­
acterized the voting changes as an increase from five to 
ten judgeship positions for both the civil and criminal 
district courts in Orleans Parish. Although we asked for 
clarification of the voting changes effected by these stat­
utes, we have not received your response. Our further 
analysis, however, indicates the following:

(1) Act 129 recodifies ten judgeship positions, eight 
of which antedate the state's coverage under Section 5 
and one of which received the requisite Section 5 pre­
clearance in 1986. Accordingly, the effect of the Septem­
ber 23, 1988, objection applied only to the tenth judgeship 
position (Division J) for the Orleans Parish Criminal Dis­
trict Court, a position that was initially created under Act 
235 (1970) and recodified by Act 129 (1975).

(2) Act 143 (1975) recodifies ten judgeship positions, 
seven of which antedate the state's coverage under Sec­
tion 5. Accordingly, the effect of the September 23, 1988, 
objection to Act 143 (1975) applied only to three judge- 
ship positions for the Orleans Parish Criminal District 
Court.

We have carefully reviewed the information you have 
provided, as well as comments and information from 
other sources and interested parties. Our analysis indi­
cates that the changes do not have the purpose and will



App. 19

not have the effect of discriminating on the basis of race 
or color and that implementation of the changes will not 
lead to a clear violation of Section 2 of the Voting Rights 
Act, 42 U.S.C. 1973. Accordingly, the objections inter­
posed September 23, 1988, and May 12, 1989, to the 
specified changes for the Orleans Parish Civil and Crimi­
nal District Courts are hereby withdrawn. See the Pro­
cedures for the Administration of Section 5 (28 C.F.R. 
51.48 and 51.55).

With regard to the changes under act 8 (1990) for the 
Orleans Parish Civil District Court, the Attorney General 
does not interpose any objections to the changes in ques­
tion. However, we feel a responsibility to point out that 
Section 5 of the Voting Rights Act expressly provides that 
the failure of the Attorney General to object does not bar 
any subsequent judicial action to enjoin the enforcement 
of such changes. See 28 C.RR. 51.41.

Sincerely,

/ s /  John R. Dunne 
John R. Dunne 
Assistant Attorney General 
Civil Rights Division