Roemer v Chisom Brief of Amicus Curiae

    No. 88-327

3fn tfje Supreme Court of tfjc Hmtetr states
October Term, 1988

Buddy Roemer, Governor of the 
State of Louisiana, et al., petitioners

v.
Ronald Chisom, et al.

ON PETITION FOR A WRIT OF CER TIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

Charles Fried 
Solicitor General

Wm. Bradford Reynolds 
Assistant Attorney General

Roger Clegg
Deputy Assistant Attorney General 

Jessica Dunsay Silver 
Mark L. Gross 

A ttorneys
Department o f  Justice 
Washington, D.C. 20530 
(202) 633-2217



QUESTION PRESENTED

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

(I)





TABLE OF CONTENTS

Page
Interest of the United S tates............................................. 1
Statement  ..................................................... 2
Discussion......................... ......................................... ...............  5
Conclusion ............................. ................. ...................... .. 11

TABLE OF AUTHORITIES

Cases:
Allen v. State Bd. o f Elections, 393 U.S. 544 (1969) . . . . . .  7
Brotherhood o f  Locomotive Firemen v. Bangor & Aroo­

stook R.R., 389 U.S. 327 (1967) ...................................... 5
Haith v. Martin, 618 F. Supp. 410 (E.D.N.C. 1985),

affd, 477 U.S. 901 (1986) ............ ............. .................. .. 4, 7
Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S.

251 (1916)...................... ............. .................................. 5
Mallory v. Eyrich, 839 F.2d 275 (6th Cir. 1988)............ 6
Mobile v. Bolden, 446 U.S. 55 (1980) ....................... 4, 8
Pampagna Sugar Mills v. Trinidad, 279 U.S. 211 (1929) .. 7
South Carolina v. Katzenbach, 383 U.S. 301 (1966) . . . . . .  7
Thornburg v. Gingles, 478 U.S. 30 (1986) .................. .. 8
United States v. Sheffield Bd. o f  Comm’rs, 435 U.S. 110

(1978)............................................................................. 7, 10
White v. Regester, 412 U.S. 755 (1973).............................  9

Constitution and statutes:
U.S. Const. Amend. XIV (Equal Protection Clause)........ 2
Voting Rights Act of 1965, 42 U.S.C. 1971 et seq.:

§ 2, 42 U.S.C. (1970 ed.) 1973 ...................................  3 ,6
§2, 42 U.S.C. 1973 ............................................... . 1,2, 3,4,

5, 6, 7, 8, 9, 10
§ 2(a), 42 U.S.C. 1973(a) .................................. .. 8
§ 2(b), 42 U.S.C. 1973(b).......................................... 8
§ 5, 42 U.S.C. 1973c................. ................................4, 5, 7
§ 14(c)(1), 42 U.S.C. 1973/(c)(l) ........................... 3,6-7

42 U.S.C. 2000h-2 ......................................... .................. . 1

( H I )



Miscellaneous: Page
111 Cong. Rec. 15722-15723 (1965) . . . . . . . . . . . . . . . . . . .  9
115 Cong. Rec. 38493 (1969) . . . . . . . . . . . . . . . . . . . . . . . . .  9
121 Cong. Rec. 16241 (1975) ....................................... 9
128 Cong. Rec. (1982):

p. 14132 .......................     9
p. 14133 ...........................................     9

Extension o f the Voting Rights Act: Hearings Before the 
Subcomm. on Civil and Constitutional Rights o f the 
House Comm, on the Judiciary, 97th Cong., 1st Sess,
(1981) .....................................   9

H.R. Rep. 94-196, 94th Cong., 1st Sess. (1975) . . . . . . . . .  9
S. Rep. 97-417, 97th Cong., 2d Sess (1982) .............. . 9, 10
Voting Rights Act: Hearings on S. 53, S. 1761, S. 1975,

S. 1992, and H.R, 3112 Before the Subcomm. on the 
Constitution o f the Senate Comm, on the Judiciary,
97th Cong., 2d Sess. (1982) .............................................  9

IV



3n tf)e Supreme Court of tf>e fHmteb ££>tate£
O ctober  T e r m , 1988 

No. 88-327

Buddy R o em er , G overnor  o f  the  
State  of L o u isia n a , et  a l ., petitio n ers

v.
R o na ld  C h iso m , et  a l .

O N P ETITIO N  FOR A  W RIT  OF CERTIO RARI 
TO THE UNITED STATES COURT OF APPEALS  

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

This case presents the question whether judicial elec­
tions are covered by Section 2 of the Voting Rights Act of 
1965, as amended (42 U.S.C. 1973). The United States has 
primary responsibility for the enforcement of Section 2, 
which is an important federal statute that prohibits a wide 
range of racially discriminatory voting or election prac­
tices. Any decision in this case will directly affect the 
government’s enforcement responsibilities.

The United States participated in the court of appeals as 
amicus curiae. In addition, after the court of appeals 
issued its decision in this case and remanded the case to the 
district court for trial, the United States intervened in the 
litigation pursuant to 42 U.S.C. 2Q00h-2 and is now party 
plaintiff.

(1)



2

STATEMENT

1. The state of Louisiana provides for the election of 
the seven justices of the Supreme Court of Louisiana from 
six judicial districts (Pet. App. 7). The First District, 
which includes Orleans, St. Bernard, Plaquemines, and 
Jefferson Parishes, elects two justices at-large {ibid.). 
Each of the other five districts elects one justice. The 
population of the First District is sixty-three percent white, 
and sixty-eight percent of registered voters are white 
{ibid.).

On September 19, 1986, respondents, who are black 
registered voters in Orleans Parish, Louisiana, filed a 
complaint alleging that the at-large system for electing two 
state supreme court justices from the First Judicial District 
diluted black voting strength, in violation of Section 2 of 
the Voting Rights Act of 1965 (Act), as amended (42 
U.S.C. 1973), and the Equal Protection Clause (Pet. App. 
6). Respondents alleged that the elections in the First Dis­
trict had been marked by racial bloc voting, that past of­
ficial discrimination had continuing effects on respond­
ents, that few blacks had been elected to public offices in 
the district, and that no blacks had been elected to the 
Louisiana Supreme Court from the First District {id. at 8). 
Respondents also alleged that there was no justifiable 
basis for singling out the First District for at-large elec­
tions {ibid.). As relief, respondents sought the division of 
the First District into two districts, each of which would 
elect one justice. Such a division would produce one dis­
trict, consisting of Orleans Parish, with a fifty-five percent 
black population and a fifty-two percent black registered 
voter population, and a second district, consisting of the 
remaining parishes of the First District, with a substantial 
majority of white voters {id. at 7).

2. The district court dismissed the complaint, holding 
that it failed to state a violation of Section 2 of the Voting



3

Rights Act (Pet. App. 28-43). The court found that Sec­
tion 2, by its terms, is violated only when minority voters 
show that they do not have an equal opportunity “to elect 
representatives of their choice.” Section 2, the court con­
cluded, does not cover judicial elections because judges 
are not “representatives” (Pet. App. 35-39). The court also 
relied on the fact that constitutional “one man, one vote” 
standards do not apply to judicial elections (id. at 35), and 
that the legislative history of Section 2 does not specifical­
ly refer to judicial elections (Pet. App. 36-37).

3. A unanimous panel of the court of appeals reversed 
the district court’s judgment and remanded the case for 
trial (Pet. App. 1-26).

The court noted, first, that the plain language of the 
Voting Rights Act encompasses judicial elections. The 
court began by observing that Act seeks to eradicate 
racially discriminatory electoral practices, and therefore 
should be broadly construed (Pet. App. 10-12). The 
original language of Section 2 of the Act (42 U.S.C. (1970 
ed.) 1973) prohibited discrimination in any “voting 
qualification or prerequisite to voting, or standard, prac­
tice, or procedure” (Pet. App. 10). Section 14(c)(1) of the 
Act (42 U.S.C. 19737(c)(1)), defined “voting” as applying 
to “any primary, special, or general election” and included 
all action necessary to have votes counted for “candidates 
for public * * * office” (Pet. App. 13). Because elected 
judges are such “candidates,” the court concluded that the 
“express terms” of Section 2 cover judicial elections (Pet. 
App. 12). The court distinguished the “one person, one 
vote” cases that have excluded judicial elections— on 
which the district court relied —by pointing out that a 
claim of dilution of minority voting strength is based on 
racial discrimination and implicates different statutory 
and constitutional considerations (id. at 14-15).



4

The court next examined the legislative history to the 
1982 amendments to Section 2. The court found that the 
history of the amendments demonstrates that Congress in­
tended to expand, not to limit, the protection of the Act 
(Pet. App. 17-21). Congress amended the language of the 
Act to incorporate in Section 2 the “results” test rejected 
by a plurality of this Court in Mobile v. Bolden, 446 U.S. 
55 (1980) (Pet. App. 16-21). Under the results test, a viola­
tion could be shown without proof that the challenged 
practice had been intentionally designed or maintained to 
limit minority voting rights. The language Congress added 
in 1982 regarding the standard of proof of a violation, in­
cluding the word “representatives” on which the district 
court focused, should not be read to limit the existing 
broadly defined coverage of the Act (id. at 12, 17-18). The 
court added that the legislative history indicated that Con­
gress understood Section 2 to cover judicial elections, and 
that the House and Senate hearings on the Voting Rights 
Act contained repeated references to judicial elections 
(Pet. App. 19-20).

Although the case arose under Section 2, the court also 
looked to judicial construction of Section 5 of the Voting 
Rights Act of 1965, (42 U.S.C. 1973c). Section 5, which 
requires preclearance of changes in electoral procedures in 
some states, has been construed to encompass judicial 
elections (Pet. 21-22 (citing Haith v. Martin, 618 F. Supp. 
410 (E.D.N.C. 1985), aff’d, 477 U.S. 901 (1986)). The 
court pointed out that the language defining the scope of 
Section 5 is virtually identical to that of Section 2 and that 
“statutory construction, consistency, and practicality 
point inexorably to the conclusion that if section 5 applies 
to the judiciary, section 2 must also apply to the judiciary” 
(Pet. App. 23). Finally, the court found additional confir­
mation of its interpretation of Section 5 in the Attorney



5

General’s consistent construction of the Voting Rights 
Act, and in his view that it covers judicial elections (Pet. 
App. 23-24).1

DISCUSSION

The court of appeals’ decision is correct and does not 
conflict with any decision of this Court or any other court 
of appeals. Further review of this interlocutory decision is 
not warranted.

1. This case is not yet ripe for review by this Court. 
The court of appeals, after holding that judicial elections 
are covered by Section 2, remanded the case for trial. Peti­
tioners are in exactly the same position as they would have 
occupied if the district court had denied the motion to 
dismiss. Petitioners offer no reason why this Court should 
depart from its usual course of declining to grant in­
terlocutory review. See Brotherhood o f Locomotive 
Firemen v. Bangor & Aroostock R.R., 389 U.S. 327, 328 
(1967); Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 
240 U.S. 251, 258 (1916).

Petitioners assert that this case presents an important 
question, appropriate for immediate review, because 
many states elect judges, and that if those elections are 
subjected to Section 2 coverage, “chaos will ensue” (Pet. 
11). As petitioners note, however, there have been very 
few complaints under Section 2 against judicial electoral 
systems (see Pet. App. 6-7). Moreover, the lower courts in 
this case have demonstrated the ability to respond to peti­
tioners’ assertions of undue disruption to the state judicial 1

1 The court also held that the district court erred in holding that the 
complaint did not sufficiently allege a violation of plaintiffs’ constitu­
tional rights (Pet. App. 24-25). Further review of that issue is not 
sought in the present petition.



6

system from this litigation.2 If the district court enters a 
final judgment that the electoral scheme in place in Loui­
siana violates Section 2, and if such a judgment is affirmed 
on appeal, petitioners may file a petition for a writ of cer­
tiorari at that time.

2. There is no conflict among the courts of appeals on 
the issue petitioners present. The only two courts of ap­
peals to decide this issue agree that Section 2 applies to 
judicial elections. The Sixth Circuit, in Mallory v. Eyrich, 
839 F.2d 275 (1988), held that Section 2 applied to judicial 
elections, and applied a very similar analysis to that 
adopted by the court of appeals in this case.

3. The court of appeals' decision in this case correctly 
construes Section 2. There is no support for the view that 
Congress, when it amended the Voting Rights Act in 1982, 
created an exception for judicial elections.

a. The plain language of the Act, as it was originally 
passed in 1965, covered ail electoral proceedings, without 
exception. Section 2 provided (42 U.S.C. (1970 ed.) 1973): 

No voting qualification or prerequisite to voting, or 
standard, practice, or procedure shall be imposed or 
applied by any State or political subdivision to deny 
or abridge the right of any citizen of the United States 
to vote on account of race or color.

Section 14 of the Act defined the term “vote” to cover all 
elections: “[t]he terms ‘vote’ or ‘voting’ shall include all ac­
tion necessary to make a vote effective in any primary, 
special, or general election * * * with respect to candidates 1

1 As petitioners acknowledge (Pet. 5 n.l), since the decision on 
which review is sought, the court of appeals has reversed a district 
court decision preliminarily enjoining a scheduled October election of 
a state supreme court justice from the First District. Clearly, the civil 
litigation rules and procedures have been adequate to protect fully the 
State’s interests.



7

fo r public or party office * * * ” (42 U.S.C. 1973/(c)(l) 
(emphasis added)).3

This Court has summarily affirmed a decision holding 
that judicial elections are covered by the preclearance re­
quirements of Section 5 of the Act (Haith v. Martin, 618 
F. Supp. 410 (E.D.N.C. 1985), aff’d, 477 U.S. 901 (1986)). 
The language defining the electoral practices covered by 
Section 5 is identical to that defining the coverage of Sec­
tion 2, and basic tenets of statutory construction require 
that it be given the same interpretation. See, e.g., Pam- 
pagna Sugar Mills v. Trinidad, 279 U.S. 211, 217-218 
(1929).4

b. In 1982, Congress amended Section 2 (42 U.S.C. 
1973) to read:

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

3 This Court has consistently recognized that Congress intended, 
when passing the Voting Rights Act, to enact a broad prohibition on 
voting discrimination. The Voting Rights Act “reflects Congress’ firm 
intention to rid the country of racial discrimination in voting.” South 
Carolina v. Katzenbach, 383 U.S. 301, 315 (1966); see also United 
States v. Sheffield Bd. o f Comm’rs, 435 U.S. 110, 122-123 (1978); 
Allen v. State Bd. o f Elections, 393 U.S. 544, 565-566 (1969).

4 The court of appeals was also correct to note that it would be quite 
anomalous if Section 5 applied to judicial elections, but Section 2 did 
not. See Pet. App. 22-23.



8

nomination or election in the State or political sub­
division are not equally open to participation by 
members of a class of citizens protected by subsection 
(a) of this section in that its members have less op­
portunity than other members of the electorate to 
participate in the political process and to elect repre­
sentatives of their choice. The extent to which 
members of a protected class have been elected to of­
fice in the State or political subdivision is one cir­
cumstance which may be considered: Provided, That 
nothing in this section establishes a right to have 
members of a protected class elected in numbers equal 
to their proportion in the population.

Congress thus retained the original coverage language of 
Section 2(a), and added new language in Section 2(b) to 
provide guidance on what constitutes a violation of the 
Act. Petitioners focus on the word “representatives,” 
which is part of Section 2(b), as establishing a congres­
sional exception to Section 2 coverage for the election of 
judges (Pet. 12-16, 18-26). As the court of appeals con­
cluded, however, Congress did not intend to exclude 
judicial elections from Section 2 coverage when it amend­
ed Section 2 to include that language.

Congress amended Section 2 in response to this Court’s 
decision in Mobile v. Bolden, 446 U.S. 55 (1980), in which 
a plurality of the Court concluded that Section 2, as 
originally written, prohibited only intentional acts of 
racial discrimination in voting. The 1982 amendments 
added language explaining that proof of intent was not re­
quired to make out a violation of Section 2. See Thorn­
burg v. Gingles, 478 U.S. 30, 44 n.8 (1986). Accordingly, 
the objective of Section 2(b) was not to identify the class 
of elected officials within the statute’s reach, but to 
prescribe the “results” test.



9

Nor does the legislative history of the 1982 amendments 
support the argument that Congress used the term 
“representatives” to exclude judicial elections from the 
coverage of Section 2.5 Congress was aware that in some 
states judges were elected. Witnesses in hearings on the 
legislation that became the 1982 amendments referred 
repeatedly to the fact that judges were elected in many 
states.6 There is no statement by any member of Congress 
that inclusion of the word “representatives” in the 1982

5 The legislative history of the 1982 amendments shows that the 
term “representatives” was not used as a narrowing term of art. The 
language of subsection (b) — “to participate in the political process and 
to elect representatives of their choice” —is derived from White v. 
Regester, 412 U.S. 755, 766 (1973), which used the term “legislators.” 
See S. Rep. 97-417, 97th Cong., 2d Sess. 27 (1982). Members of Con­
gress used the term “representatives” interchangeably with the term 
“candidates” when discussing the revised Section 2. See S. Rep. 
97-417, supra, at 16, 28, 30, 32, 67, 100; see also 128 Cong. Rec. 14132 
(remarks of Sen. Dole), 14133 (remarks of Sen. Thurmond) (1982).

6 See e.g., Extension o f the Voting Rights Act: Hearings Before the 
Subcomm. on Civil and Constitutional Rights o f  the House Comm, 
on the Judiciary, 97th Cong., 1st Sess. 38, 193, 239, 280, 503, 574, 
804,937, 1182, 1188, 1515, 1528, 1535, 1745, 1839, 2647 (1981). Much 
of the same sort of evidence was presented at the Senate hearings. See 
Voting Rights Act: Hearings on S. 53, S. 1761, S. 1975, S. 1992, and 
H.R. 3112 Before the Subcomm. on the Constitution o f the Senate 
Comm, on the Judiciary, 97th Cong., 2d Sess. 208-209, 669, 748, 788, 
789 (1982). Congress had been made aware, when Section 2 was first 
enacted in 1965, and extended in 1970 and 1975, that some states 
elected their judges. See, e.g., 111 Cong. Rec. 15722-15723 (1965); 115 
Cong. Rec. 38493 (1969); H.R. Rep. 94-196, 94th Cong., 1st Sess. 7 
(1975); 121 Cong. Rec. 16241 (1975). Moreover, because there can be 
a blurring or combining of judicial and nonjudical duties in state of­
fices, the exception to Section 2 urged by petitioners would be un­
manageable.



10

amendments was intended to exclude judges, for the first 
time, from Section 2 coverage,7 

In all events, the natural reading of the term “represen­
tatives” does not exclude elected judges in the context of 
the Voting Right Act. While elected judges do not repre­
sent voters in the same way that legislators do, when a 
state chooses to have an elected judiciary, it establishes a 
policy that judges will be selected by voters to express and 
represent the civil and legal views of the community. That 
is precisely the situation in which the Voting Rights Act 
seeks to ensure that no minority is denied an equal oppor­
tunity to participate in the political processes leading to 
election.8

7 In fact, Senator Hatch, who opposed the enactment of the 
“results” test, stated in separate comments made part of S. Rep. 
97-417, supra, at 151, that the term “ ‘political subdivision’ encom­
passes all governmental units, including * * * judicial districts * *
No one disagreed. Cf. United States v. Sheffield Bd. o f  Comm’rs, 435 
U.S. at 130.

8 Subjecting elected judges to Section 2 coverage does not mean, of 
course, that Section 2 necessarily applies to judicial elections in 
precisely the same way as it applies to other elections. The differing 
function of judges from other elected officials may influence the fac­
tors to be considered in determining if a Section 2 violation has oc­
curred, and what would be an appropriate remedy. These difficult 
issues are not presented in this case, since the court of appeals’ deci­
sion dealt only with the question of whether Section 2 covers judicial 
elections at all. See U.S. Amicus Br, 19-21. Questions of how Section 
2 should be applied will arise when there is a specific application of 
Section 2 to judicial elections (e.g., on the remand in this case).



11

CONCLUSION

The petition for a writ of certiorari should be denied. 
Respectfully submitted.

Charles Fried 
Solicitor General

Wm. Bradford Reynolds 
Assistant Attorney General

Roger Clegg
Deputy Assistant Attorney General 

Jessica Dunsay Silver 
Mark L. Gross 

Attorneys

October 1988

U.S. GOVERNMENT PRINTING OFFICE: 1988-241-699/60724