Motion for Leave to Supplement Appellees Brief; Partial Transcript of Proceedings

    • IN THE 111 
UNITED STATES COURT OF APPEAL 

FOR THE FIFTH CIRCUIT 

NO. 87-3463 

RONALD CHISOM, ET AL. 
Plaintiffs-Appellants 

VERSUS 

EDWIN EDWARDS, ET AL. 
Defendants-Appellees 

MOTION FOR LEAVE TO SUPPLEMENT APPELLEES BRIEF  

The Appellees respectfully request leave to supplement 

their brief in the above captioned case. As the Court is aware, 

there is case a pending in the Middle District of La.. Clark v.  

Edwards 86-435 A. which involves similar issues to those 

presented in Chisom. The most controversial of those issues is 

whether Section 2 of the Voting Rights Act of 1965 as amended, 42 

U.S.C. 1973, applies to judicial elections. 

On February 5, 1988, a hearing was held in Clark in 

which the District Court denied plaintiffs' request for a order 

enjoining the judicial elections scheduled for March. The 

Appellees wish to supplement the record in Chisom v. Edwards by 

submitting a partial transcript of those proceedings in Clark. 

Appellees believe the proceedings in Clark are relevant to the 

instant case. Pursuant to Loc. Rule 28.3 (Comments), we hereby 

submit the attached material. 

CERTIFICATE OF SERVICE 

certify that a copy of the foregoing pleading has • 

erved upon counsel for all parties by mailing the sari 

W each, properly addressed and postage 

-t110/‘51adEty et • 12:1 

BY: 

RESPECTFULLY SUBMITTED 

WILLIAM J. GUSTE, JR. 
ATTORNEY GE 

K 
A SISTAN ORNEY GENERAL 
L UISIANA DEPARTMENT OF JUSTICE 
2 LOYOLA AVENUE, 7TH FLOOR 
NEW ORLEANS, LOUISIANA 70112 
TELEPHONE: (504) 568-5575 



IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF LOUISIANA 

BATON ROUGE, LOUISIANA 

*. * * * * * * * * 

JANICE G.. CLARK, ET AL 

• * * *• * * * * * * 

VERSUS 

EDWIN W. EDWARDS, ET AL 

CIVIL ACTION NUMBER 86-435-A 

PARTIAL TRANSCRIPT OF PROCEEDINGS 
* * * * * * * * * * * * 

THE HONORABLE JOHN V. PARKER, CHIEF JUDGE, PRESIDING 
* * * * * * * * * * * * * * •* * * * 

FRIDAY, FEBRUARY 5, 1988 
* * * * * * * * * 

APPEARANCES: 

ROBERT B. MC DUFF, ESQ. 

1400 Eye Street N.W., No. 400 

Washington, D.C. 20005 

and 
ERNEST L. JOHNSON, ESQ. 

P. 0. Box 73758 

Baton Rouge, LA 70806 

KENNETH C. DE JEAN, ESQ. 
P. O. Box 44005, Capital Station 

Baton Rouge, LA 70804 

MICHAEL H. RUBIN, ESQ. 

Suite 1400, One American Place 

Baton Rouge, LA 70825 

FRED J. CASSIBRY, ESQ. 
400 Poydras Street, Suite 2500 

New Orleans, LA 70130 . Helen Baziell 

Official Court Reporter 

707 Florida Boulevard 

Baton Rouge, Louisiana 7mmn 

: For the Plaintiffs 

For Edwin W. Edwards, 

William J. Guste, Jr. 

and James H. "Jim" Brown 

For Louisiana District 

Judges' Association 

For Orleans Trial 
Judges' Association 



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Reporter's Note Re Partial Transcript 3 

Comments Of The Court 

Offer Of Proof By Mr. McDuff 

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Exhibits 1 Through 11 Introduced 8 

Objection By Mr. Rubin 9 

Objection By Mr. Cassibry 11 

Further Comments Of The Court 11 

.Reporter's Certificate 17 



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FRIDAY, FEBRUARY 5, 1988 

AFTERNOON SESSION 

(Reporter's Note: Proceedings were commenced and 

continued until 12:00 noon, at which time proceedings were 

recessed for lunch. Then, proceedings were resumed at 

1:15 p.m.) 

THE COURT: Be seated, please. As I told counsel 

a while ago, the prediction that the State Police made is 

coming true. The weather is getting worse. The snow is 

turning to sleet and they are fast shutting down sections 

of highways, including -- I'm informed that Interstate 10 

and 110 is shut down all the way from the airport to Govern-

ment Street and they're shutting down additional sections of 

it. And 'I really believe I'd better send my people home. 

I'm very much concerned about the weather getting so bad 

that we get folks who get out on those slippery, sleet-

filled streets and it gets to be rather. hazardous. 

I am going to go further than that, however. Mr. Rubin 

has urged me to rule on the Section 2 Motion To Dismiss. As 

counsel are well aware, I have delayed ruling on the motion 

to dismiss on the notion that the Fifth Circuit would 

eventually rule in the Chisom case and give me some higher 

court guidance as to how the appellate courts want us 

district judges to proceed. 

I have thought about it. I have re-reviewed the 



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memoranda previously filed by all parties pro and con the 

motion to dismiss. And I Will simply share my thinking with 

you, right now -- which is, that in view of the holding of 

-the Voter Information Project versus The City of Baton Rouge, 

it seems apparent to me that obviously, the Fourteenth and 

Fifteenth Amendments apply to judicial elections because 

that's exactly what the Voter Information Project case held. 

And at least Section (a) or Paragraph (a) of Section 2 of the 

Voting Rights Act must apply to all elections. The language 

employed is the statute is all-embracing. It says: 

"No voting qualification or prerequisite to 

voting, standard, practice or procedure shall 
be imposed in a manner which results in a 
denial or abridgment of the right of any 
citizen to vote on account of race or color." 

I do have great difficulty, however, with applying Paragraph . 

(b) to judicial elections because of the obvious -- some of 

it's obvious, differences between judicial officers and non-

judicial public officials. Those differences, of course, 

have been enunciated by Judge Schwartz, in the Chisom 

case, and by Judge Rubin, in the Southern District of Ohio 

case, and have been alluded to in some of the one-man, one-

vote cases. Of course, as the Voter Information Project  

case holds, we are not here involved with any one-man, one-

vote claim. We have here a.claim of racial discrimination. 

I am not at all sure that the plaintiffs are ever going 

to be. able to convince me, absent a clear holding by the 



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Fifth Circuit, that a test more stringent than the Fourteenth 

and Fifteenth Amendment tests.should be applied to election 

of judicial officers in a state which. elects -- chooses, I 

guess, is a better word -- which chooses to elect judicial 

officers. Obviously, if the Fifth Circuit says that it does, 

then obviously, that's binding upon me and that's what we 

will apply. 

In part, that view rests upon the wording of Sub-

paragraph (b), making specific reference ,to "and elect 

.representatives of their choice" but it also rests upon 

additional factors relating to the very unique position of 

judicial officers in our society. The members of our society 

are not entitled to have, for example, an equal number, of 

judges; they are not entitled, it seems to me, to anything 

other than the right to participate in an election process, 

if the judicial officer is to be elected, that does not 

intentionally discriminate against them in the election 

process. 

Now, Mr. McDuff has, in brief, commented that that is 

a ridiculous position, before he knew that I was leaning in 

that direction. And it may be. The Fifth Circuit will 

certainly tell me, if it is. 

I am not strong enough to where I am making that ruling 

at this time. I am simply telling you, right now, that's how 

I'm leaning. It Seems to me that it's not sufficient just to 



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say that the judiciary is different and Section 2 doesn't' 

apply, when you look at Section 5, which clearly does apply 

to all elections, including judicial elections, and you 

look at the language of the first part of the first para-

graph, Paragraph (a) of Section 2, 42 U.S.C. 1973. So I'm 

certainly leaning strongly toward holding that where a state 

elects -- chooses to have its judicial officers elected, 

it's got to conduct those elections in accordance with the 

Fourteenth and Fifteenth Amendments. And I don't think any-

body in this courtroom would disagree with that. 

I am leaning, to the point of saying that's what we 

have and that's what the plaintiffs are going to have to 

prove, to win in this case -- not an "effects" test, as 

authorized by Subparagraph (b), but a Fourteenth/Fifteenth 

Amendments, pre-1982 amendment to Sedtion 2. And I say that 

and then I conclude that your ultimate chances of success 

on the merits are not sufficient to warrant, in my mind, 

the issuance of a preliminary injunction for these particu-

lar elections, accepting that you will prove, today, a 

discriminatory effect or dilution of voting effect, through 

the use of your expert. 

That being the case, I would have to tend to agree with 

Mr. Rubin that we really ought not to take the evidence 

because whatever the evidence shows, I'm still going to be 

of this same mind. 



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On top of the other factors that have been mentioned, 

regardless of whose function it should've been to get the 

issues before this court prior to qualification ending -- and 

both sides say that the other side should've done it, the 

fact of the matter is we have the same situation that we had 

several months ago, with candidates in the field, spending 

money, and the situation that they don't have any chOice. 

And I'll have to say that the candidates are certainly 

innocent of any wrongdoing; they have no choice. If they 

aspire to the office of judge in Louisiana, there ain't but 

one -- basically one way to get it and that's to run for 

office. And they have to run when they say run. None of 

the candidates set the qualification dates, none of them had 

any choice about whether to qualify or not qualify, none of 

them has any choice, now, as to whether to continue to spend 

money. As long as I do not enjoin the election, they're 

going to spend money; they have to, they don't have any 

choice. 

All those factors taken into consideration convince me 

that the best thing for us to do today is for me to deny the 

motion for preliminary injunction. I will write this up in 

a more formal fashion. But I really don't see any need, at • 

this stage, to take the evidence because I make my ruling 

based on the assumption that you will prove what you said 

you would prove, Mr. McDuff. 



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I will add one more caveat, which is that my ruling is 

not based on the weather. 

You have something to add? 

MR. MC DUFF: Your Honor, may we take about two 

minutes to make a brief offer of proof? 

THE COURT: Sure, absolutely. 

MR. MC DUFF: *First, I want, as an offer of proof, 

to file with the court "Exhibits 1" through "4," which are 

responsive to requests for admissions .by the defendants and 

the intevenors, 

THE COURT: All right. 

MR. MC DUFF: -- which we think establish facts 

relevant to this case. 

THE COURT: All right, this is on the proffer? 

MR. MC DUFF: This is on the proffer. Next, I 

would like to offer "Exhibits 5" and "6," which are reports 

of the analysis of racially-polarized voting by Dr. Richard 

L. Engstrom. If called to testify, he would testify to the 

substance -- as to what is in these reports. 

• THE COURT: All right. 

MR. MC DUFF: Next, I would like to offer, as 

"Exhibits 7" thrOugh "11," various campaign advertisements 

in elections with black and white candidates in the State of 

Louisiana. "7xhibits 7," "8," "9" and "10" all relate to 

judicial elections; "Exhibit 11" relates to a congressional 



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election. They each contain pictures of the black and white 

candidates. They each are sponsored by the white candidate. 

And our expert witness, William S. Kaplan, who is a politi-

cal consultant, if called to testify, would testify that 

these constitute racial campaign appeals, designed solely 

to call to the attention of the public the fact that the 

white candidate's opponent is black. 

MR. RUBIN: Your Honor, if I may, 

THE COURT: All right, let that all be made a 

part of the proffer. 

MR. RUBIN: Your Honor, I understand we're in the 

proffer and just for the purposes of protecting the record 

and on behalf of the District Judges' Association, I would 

object, under the proffer, to any evidence that, includes any 

elections or material on elections other than judicial 

elections. 

THE COURT: All right, let the objection be noted. 

MR. MC DUFF: In addition, we would call to the 

stand Cedric Floyd, who is the plaintiffs' expert demographer, 

who would testify that in the Twenty-first Judicial District, 

he can draw a majority black single member district, using 

the number of judges who currently exist, using the court's 

final number of districts as is the number of judges who 

currently exist, he can draw a majority black single member 

district. He will also testify that he can do that in the 



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Twenty-sixth Judicial District Court. With respect to 

Orleans Parish, he will testify that it is possible to draw 

seven districts of twelve. There're twelve judges on the 

Civil District Court. If you divide it up into twelve 

aistricts, he can draw seven with black populations exceeding 

sixty-five percent. 

THE COURT: And you've got all of the population 

exceeding fifty-three percent, now. What have you really 

accomplished, by doing that? I'm not arguing with you about 

it. It has been impressed on us, more than once here today, 

that the majority of the population in the Parish of 

Orleans is black. 

MR. MC DUFF: Dr. Engstrom's analysis shows that 

the actual voters who turn out, in terms of voter participa-

tion in judicial elections, that in the vast majority of 

races, even today -- the majority of the electorate is white; 

that whites vote as a bloc; blacks vote as a bloc; and the 

usual result in Orleans Parish is that black candidates lose.; 

and black candidates do have less -- of the black voters in 

Orleans Parish, do have less opportunity than white voters 

to elect candidates of their choice. And I think out of any 

judicial elections, I think our evidence will show that. 

THE COURT: And all that will be part of your 

proffer? 

MR. MC DUFF: That's correct. 



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MR. CASSIBRY: Well, if this is on the proffer, 

all right. 

THE COURT: It's a proffer, right. 

• MR. CASSIBRY: It's inaccurate, whatever it is. 

THE COURT: We will let your objection be noted 

for the record. 

MR. MC DUFF: Judge Cassibry has not analyzed 

elections, we have. 

THE COURT: All right. If anybody has anything 

else to submit to me on the legal issues that I have re-

counted here today, I will be happy to receive it. And it 

may be -- Well, I'm going to have to make up my mind and 

will, shortly, so we can get this out of the way and we'll 

have a ruling and we'll know what we have left to try. 

MR. JOHNSON: That would be before the-trial, 

Your Honor? You will make a ruling on the motion to dismiss 

prior to the trial? 

THE COURT: Yes. 

MR. JOHNSON: You said you're leaning. 

THE COURT: Yes. 

MR. JOHNSON: Because I think all parties would 

appreciate some ruling from the court on that; it's been 

pending for quite a while, now. And we're going through a 

lot to prepare for trial. 

THE COURT: Well, I can't rely on the Fifth 



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Circuit to do my work for me; and I've just got to do it. 

And I have told you the way I have structured my thinking. 

And I don't think there's any doubt or anybody has any mis-

understanding of what I've said. My leaning, very strong, 

is that we've got to .say that Section 2, along with the 

Fourteenth and Fifteenth Amendments, applies to any election 

held by anybody; but that I have grave doubts as to whether 

the "effects" test in Section (b) was intended by Congress 

to be applied to judicial elections, for the reasons that 

I've stated. And you can -- if you have something else, 

I want to give you a chance to add an.additional brief, if 

you wish. 

MR. MC DUFF: I think we've already briefed it 

thoroughly. What --

THE COURT: Yes, you have. 

MR. MC DUFF: What I want to ask is this, because 

it will affect the steps we take in the coming month: 

want to ask about the court's timing. How --

THE COURT: If anybody wants to file a brief, I 

will give you that much time to file it, after which -- after 

I receive the last brief, I'm going to put this on the first 

order of business and get it out of the way. 

MR. MC DUFF: All right; we -- we have no addi-

tional briefs we need to file. I'm wondering if you can give 

us an idea of -- of how many weeks it might be before you 



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rule? 

THE COURT: I don't think it will be weeks, it 

would be nearer days than weeks. 

MR. MC DUFF: And will this be on the motion to 

dismiss, itself? In other words, the dispositive motion? 

THE COURT: Yes, I think that's the way we're 

going to have to do it; right. 

MR. MC DUFF: O.K., because -- I'm asking that 

because I'm wondering if -- if we choose to take an appeal, 

and I suspect we will, whether we should go ahead from the 

denial of the preliminary injunction or if the court is con-

sidering disposing of the case in a few days, in which we 

would take an appeal from that. 

THE COURT: Well, you have to, of course, paddle 

your own canoe the way that you want your boat to go, 

MR. Mc DUFF: I understand that. 

THE COURT: -- from wherever you find yourself at 

the time. 

MR. MC DUFF: I'm just trying to see where the 

tide is. I know which way it's going, --

THE COURT: Well, I have tried to indicate that. 

MR. MC DUFF: I'm trying to see how fast it is. 

THE COURT: And I will endeavor to try to rule on 

this matter. I have chewed about all I can chew. If anybody 

has any other brief to write, as soon as I get any -- Does 



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anybody else want to file an additional brief? Has anybody 

got anything more they can say on that question? 

MR. JOHNSON: No more briefs. 

MR. CASSIBRY: None, Your Honor. 

THE COURT: All right; you'll get a ruling from 

me next week on this motion. It may not be dispositive of 

the case but it will be •a ruling on the motion to dismiss. 

MR. MC DUFF: O.K., one more question: Do you 

anticipate filing a ruling, before that, a written ruling on 

the motion for preliminary injunction? 

THE COURT: I'm going to do it altogether; no use 

in my doing it twice. 

MR. MC DUFF: O.K., very well; thank you. 

THE COURT: Now, that leaves, however, the matters 

pending before the three-judge court. And that specifically 

means that Judge Drew is not yet ready to do anything because 

the three-judge court has a pending motion to enjoin that 

particular assumption of office. 

MR. DE JEAN: Your Honor, there's also the 

temporary restraining order that was issued in that matter. 

Is that being vacated? 

THE COURT: No, it's not; we're on a single-judge 

coutt here. That was taken as part of the three-judge court 

proceedings; I was acting for the three-judge court. I hope 

that the Attorney General will speed up his progress and get. 



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this matter decided. And frankly, the three-judge court is 

inclined -- if the Attorney General is going to do something, 

on a quick basis, the three-judge court is inclined to wait 

and see what the Attorney General does. Obviously, if the 

Attorney General clears the statute, as he has done several 

similar statutes, the three-judge court has nothing to do --

because that's the only issue before the three-judge court, 

is to require that it be submitted to the Attorney General 

and that the office not be filled until it is cleared. So 

I'm just telling you the general thinking and situation as 

far as the three-judge court is concerned. Now, if the 

Attorney General does not move rapidly, then the three-judge 

court will do something; and obviously, the three-judge court 

can't do anyhing but hold that that is a violation of Section 

5 of the Act. I'm not speaking for my colleagues but we have 

held the same thing, on other occasions; and it's clear that 

Section 5 does apply to judicial election, there is a 

judicial office that has not been submitted and acted upon, 

so we're just hung. 

MR. MC DUFF: I think I need to say one other 

thing, while we're all here: In the event the court does 

rule, as it apparently will, that Section 2(b) and the"effect 

test does not apply to judicial elections, we still have the 

constitutional claims pending. And --

THE COURT: You certainly do. That's what I said, 



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my ruling even here would not necessarily be dispositive of 

this case, - - 

. MR. MC DUFF: -- and I --

THE COURT: -- if I rule the way I'm leaning. 

MR. MC DUFF: That's correct. And I -- I would 

think it would be inefficient to go forward with the trial 

on the constitutional claims alone, without hearing from the 

Fifth Circuit on the applicability of Section 2. 

THE COURT: I don't disagree with you. And I'm 

not asking anybody to take a position on anything until 

rule, after which we probably will have, at least a telephone 

conference, to see where we will go. All right, court will 

be in recess. 
• 

(Reporter' Note: Proceedings were concluded at 

2:00 p.m.) 

* * * 



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CERTIFICATE 

STATE OF LOUISIANA: 

PARISH OF EAST BATON ROUGE: 

I, HELEN BAllELL, do hereby certify that the above and 

foregoing is a true and correct part4a1 transcript, to the 

best of my knowledge and ability, from the record of the 

proceedings in this matter, heard before The Honorable John 

V. Parker, Chief Judge, on Friday, February 5, 1988. 

1988. 

Baton Rouge, Louisiana, this 17th day of February, 

HELEN BAZZELL, Offic Court Reporter 

United States District Court 

Middle District of Louisiana 

707 Florida Street, Room 228 

Baton Rouge, LA 70801 

I certify transcript feas format 
wH:fi Co•art 
C i Ft i"; ; U. S. 

IALLEA C:;urt i;eporter 
United Scate .s .iisrict Court 
_Middle District of Louisiana