Coppedge v. The Franklin County Board of Education Briefs and Appellants Appendix
Public Court Documents
August 17, 1967
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Brief Collection, LDF Court Filings. Coppedge v. The Franklin County Board of Education Briefs and Appellants Appendix, 1967. 3d2fa6e6-c99a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/273cc83b-e4e9-4e88-8396-c7b242bddb9c/coppedge-v-the-franklin-county-board-of-education-briefs-and-appellants-appendix. Accessed April 06, 2025.
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No. 90-
In The
Supreme Court of ttje Hmteb States
October Term, 1990
R onald C h isom , et a l,
v.
Petitioners,
Ch a r l e s E. R o e m e r , et al.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
W illiam P. Quigley
901 Convention Center Blvd.
Fulton Place, Suite 119
New Orleans, LA 70130
(504) 524-0016
Roy Rodney , J r .
McGlinchey , Stafford ,
Mintz, Cellin i, Lang
643 Magazine Street
New Orleans, LA 70130
(504) 586-1200
P amela S. Karlan
University of Virginia
School of Law
Charlottesville, VA 22901
(804) 924-7810
* Counsel of Record
J ulius L e Vonne Chambers
*Charles St eph en Ralston
Dayna L. Cunningham
Sherrilyn A. Ifill
99 Hudson St., 16th Floor
New York, N.Y. 10013
(212) 219-1900
Ronald L. W ilson
310 Richards Building
837 Gravier Street
New Orleans, LA 70112
(504) 525-4361
C. Lani Gunier
University of Pennsylvania
School of Law
3400 Chestnut Street
Philadelphia, PA 19104
(215) 898-7032
Attorneys for Petitioners
PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203
1
QUESTION PRESENTED
Should this Court grant certiorari to resolve a conflict
between the circuits as to whether Section 2 of the Voting
Rights Act, as amended, governs the election of judicial
officers?
11
PARTIES
The following were parties in the courts below:
Ronald Chisom, Marie Bookman, Walter Willard, Marc
Morial, Henry Dillon III, and the Louisiana Voter
Registration/Education Crusade, Plaintiffs;
The United States of America, Plaintiff-Intervenor,
Charles E. Roemer, in his capacity as governor of the
State of Louisiana, W. Fox McKeithen, in his capacity as
Secretary of the State of Louisiana, and Jerry M. Fowler, in
his capacity as Commissioner of Elections of the State of
Louisiana, Defendants.
Pascal F. Calogero, Jr., and Walter F. Marcus, Jr.,
Defendants-Intervenors.
i l l
TABLE OF CONTENTS
QUESTION PRESENTED ................................................... i
PA R T IE S................................................................................... ii
TABLE OF AUTHORITIES ................................................... iv
OPINIONS BELOW ............................................................... 2
JURISDICTION....................................................................... 3
STATUTE IN V O L V E D ........................................................ 3
STATEMENT OF THE C A S E ............................................. 4
The Proceedings Below........................ 4
Statement of Facts......................................................... 7
REASONS FOR GRANTING THE W R IT ..................... 12
T his C ase P resents an Important I ssue of the
M eaning of the Voting R ights Act on W hich
T here is a C onflict B etween the C ircuits . . . 12
A. The Question of Whether Section 2
Governs Judicial Elections is of
National Importance......................... 12
B. The Decision of the Fifth Circuit Is
in Square Conflict with the Decision
of the Sixth Circuit in Mallory v.
Eyrich.................................................. 16
C O N C L U SIO N .................................................................... 19
IV
TABLE OF AUTHORITIES
Cases: Pages:
Alexander v. Martin, No. 86-1048-CIV-5 (E.D.N.C.) 13
Allen v. State Board of Elections, 393 U.S. 544 (1969) 15
Anderson v. Martin, 375 U.S. 399 (1964)..................... 10
Brooks v. State Board of Elections, 59 U.S.L. Week 3293
(October 15, 1990) ................................................... 12, 14
Chisom v. Edwards, 659 F. Supp. 183 (E.D. La.
1987) ...................................................................................... 2, 5
Chisom v. Edwards, 690 F. Supp. 1524 (E.D. La.
1 9 8 8 ) ...................................................................................... 3, 5
Chisom v. Edwards, 839 F.2d 1056 (5th Cir. 1988), cert,
denied, 488 U.S. , 102 L.Ed.2d 379 (1988) . 3, 5, 16
Chisom v. Roemer, 853 F.2d 1186 (5th Cir. 1988) . 3, 5
Clark, v. Edwards, 725 F. Supp. 285 (M.D. La. 1988) 12
Haith v. Martin, 618 F. Supp. 410 (E.D.N.C. 1985), aff’d,
A ll U.S. 901 (1986) ........................................................ 14
Hunt v. Arkansas, No. PB-C-89-406 (E.D. Ark. 1989) 13
Louisiana v. United States, 380 U.S. 145 (1965) . . . . 10
LULAC v. Clements, 914 F.2d 620 (5th Cir. 1990) 2, 6,
7, 12-16, 18
V
Pages:
Mallory v. Eyrich, 839 F.2d 275 (6th Cir. 1988)12, 16, 17
Martin v. Allain, 658 F. Supp. 1183 (S.D. Miss. 1987) 13
Nipper v. Martinez, No. 90-447-Civ-J-16 (M D Fla
1990)...................................................................................... 12
Rangel v. Mattox (5th Cir. No. 8 9 -6 2 2 6 )..................... 12
SCLC v. Siegelman, 714 F. Supp. 511 (M.D. Ala.
1989) ............................................................................. 12, 13
Sobol v. Perez, 289 F. Supp. 392 (E.D. La. 1968) . . 10
Thornburg v. Gingles, 478 U.S. 30 ( 1 9 8 6 ) .................. 15
United States v. Classic, 313 U.S. 299 ( 1 9 4 1 ) ............ 10
Wells v. Edwards, 347 F. Supp. 453 (M.D. La 1972)
aff’d, 409 U.S. 1095 (1 9 7 3 ) ............................................ 18
Williams v. State Bd. of Elections, 696 F. Supp 1563
(N.D. 111. 1988) ................................................................. 13
Statutes:
28 U.S.C. § 1254(1) ............................................................. 3
42 U.S.C. § 19737(c)(1) ..................................................... 17
La. Const, art. V, § 2 2 ( b ) ...................................................10
VI
Pages:
Section 2 of the Voting Rights Act, as amended, 42 U.S.C.
§ 1973 . .................................................................... passim
Section 5 of the Voting Rights Act, as amended, 42 U.S.C.
§ 1973c ..........................................................................14-17
No. 90-
In T he
Supreme Court of the United States
O ctober T erm , 1990
R onald C hisom , et a l.,
Petitioners,
v.
C harles E. R oem er , et al. ,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO TIIE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Petitioners Ronald Chisom, Marie Bookman, Walter
Willard, Marc Morial, Henry Dillon III, and the Louisiana
Registration/Education Crusade respectfully pray that a writ
of certiorari issue to review the judgment and opinion of the
Court of Appeals for the Fifth Circuit entered in this
proceeding on November 2, 1990.
2
OPINIONS BELOW
The opinion of the Fifth Circuit is not yet reported, and
is set out at pp. la-3a of the appendix hereto ("App."). The
opinion of the United States District Court for the Eastern
District of Louisiana is unreported and is set out at pp. 4a-
64a of the appendix, except for statistical tables that are an
appendix to the district court’s opinion. Copies of those
tables have been filed under separate cover with the Clerk of
the Court.
In addition to the opinions in this case, there is set out
at pp. 65a-99a of the appendix hereto the opinion of the
majority of the Fifth Circuit sitting in banc in LULAC v.
Clements, 914 F.2d 620 (5th Cir. 1990), which is the basis
of the opinion of the Fifth Circuit in this case.
This case was the basis of two earlier appeals; the
previous reported decisions, in chronological order, are as
follows:
Chisom v. Edwards, 659 F. Supp. 183 (E.D. La. 1987);
3
Chisom v. Edwards, 839 F.2d 1056 (5th Cir. 1988),
cert, denied, 488 U.S. 102 L.Ed.2d 379 (1988);
Chisom v. Edwards, 690 F. Supp. 1524 (E,D. La.
1988);
Chisom v. Roemer, 853 F.2d 1186 (5th Cir. 1988).
JURISDICTION
The decision of the Fifth Circuit was entered on
November 2, 1990. Jurisdiction of this Court is invoked
under 28 U.S.C. § 1254(1).
STATUTE INVOLVED
This case involves Section 2 of the Voting Rights Act,
as amended, 42 U.S.C. § 1973, which provides in pertinent
part:
(a) No voting qualification or prerequisite to
voting or standard, practice, or procedure shall be
imposed or applied by a State of political
subdivision in a manner which results in a denial or
abridgment of the right of any citizen of the United
States to vote on account of race or color . . .
4
(b) A violation of subsection (a) of this section
is established if, based upon the totality of
circumstances, it is shown that the political
processes leading to nomination or election in the
State or political subdivision 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 opportunity to participate in
the political process and elect representatives of
their choice. The extent to which members of a
protected class have been elected to office in the
State or political subdivision is one circumstance
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.
STATEMENT OF THE CASE
The Proceedings Below.
This case was brought by African American citizens of
the United States in 1986 under Section 2 of the Voting
Rights Act, as amended, 42 U.S.C. § 1973 and the
fourteenth and fifteenth amendments to the Constitution of
the United States.1 The plaintiffs, who are voters, attorneys,
‘The issue in the case as it reaches this Court involves only the
claims of the petitioners under the Voting Rights Act.
5
and a voter registration and education organization,
challenged the multi-member aspect of the scheme of
election of justices of the Supreme Court of Louisiana by
districts on the ground it denied African Americans an equal
opportunity to participate in the political process.
The district court initially granted the defendants’
motion to dismiss on the ground that Section 2 of the Voting
Rights Act did not govern the election of judges; this ruling
was reversed by the Fifth Circuit and this Court denied
certiorari. Chisom v. Edwards, 659 F. Supp 183 (E.D. La.
1987), reversed, 839 F.2d 1056 (5th Cir. 1988), cert,
denied, 488 U.S. 102 L.Ed.2d 379 (1988).2
After a trial on the merits, the district court held that
the plaintiffs had not established that the method of electing
supreme court justices violated either the Voting Rights Act
2On remand, the district court granted a preliminary injunction
enjoining the state from going forward with an election under the
challenged system, Chisom v. Edwards, 690 F.Supp 1524 (E.D. La.
1988), but this decision was also reversed, by a different panel of the
Fifth Circuit. Chisom v. Roemer, 853 F.2d 1186 (5th Cir. 1988).
6
or the Constitution. (App. pp. 4a-64a.) Petitioners appealed
limited to the question of whether a violation of the Voting
Rights Act had been shown. On November 2, 1990, a
panel of the Fifth Circuit ruled that the Voting Rights Act
does not apply to judicial elections based on the September
29, 1990, in banc Fifth Circuit in LULAC v. Clements, 914
F.2d 620 (App. pp. 65a-99a).3. The "cardinal reason" for
the result in LULAC was that the Voting Rights Act did not
apply to judicial elections because "judges need not be
elected at all." 914 F.2d at 622. App. p. 66a.4 Judges
Higginbotham and Johnson, who were on the panel in the
3In LULAC, after oral argument before a panel of the Fifth Circuit,
the full court, sua sponte, set down the case for rehearing in banc to
decide the issue of whether the Voting Rights Act applies to judicial
elections. By a 7-6 majority the Fifth Circuit overruled its prior decision
in Chisom and held that the results test of Section 2, did not apply to the
election of judges. LULAC v. Clements, 914 F.2d 620 (5th Cir.
1990)(App. pp. 65a-99a)
4A petition for writ of certiorari will be filed in LULAC v. Clements
shortly. For the reasons set out in that petition, petitioners here urge that
review be granted in both cases.
7
present case, dissented from that holding of LULAC6 but
were constrained to rule in Chisom that judicial elections
were not covered at all by Section 2 of the Voting Rights
Act and that, therefore, the complaint must be dismissed.6
(App. pp. 2a-3a.) This petition followed.
Statement o f Facts.
In Louisiana, all but one of the six districts from which
members of the Supreme Court are elected are
geographically defined single member districts and elect one
justice each. The lone multimember district, the First
Supreme Court District ("the First District") elects two
"Judge Higginbotham, joined by three other judges, dissented from
the holding that Section 2 covered no judicial elections, but concurred in
the result in LULAC on other grounds. 914 F.2d at 636. Judge
Johnson, who was the author of the original opinion in the present case,
dissented in LULAC. 914 F.2d at 657. Chief Judge Clark also
concurred in the result in LULAC but not with its holding that no judicial
elections were covered. 914 F.2d at 633.
sAs a result of the decision in LULAC, the panel in the present case
did not reach or decide the issue of the correctness of the decision of the
district court on the merits of plaintiffs’ claims. If this Court grants
certiorari and reverses the decision below, the appropriate disposition
would be a remand to the court of appeals for a decision on the merits.
8
justices.7 App. 7a-8a. With a population of over 1,100,000
and spanning four parishes — Orleans, St. Bernard,
Plaquemines, and Jefferson -- it is by far the largest supreme
court district, is more than twice the size of the smallest
supreme court district,8 and has by far the largest African
American population. The First District is 34.4% African
American in total population and African Americans
comprise 31.61% of the registered voters. App. 10a.
Orleans Parish contains more than half of the population of
the First District and is majority African American in both
total population (55.3%) and in the percentage of registered
voters (51.6%). As of March 3, 1988, 81.2% of African
American registered voters within the First District resided
within Orleans Parish. The other three parishes that make
The two justices have staggered terms, so that they are chosen in
different elections. Therefore, African American voters are unable to
optimize their political influence by single-shot voting.
"The Louisiana constitution does not require that the election districts
for the Supreme court be apportioned equally by population. Indeed, the
total population deviation between districts is 74.95%, with the 1980
population of the Fourth District being 411,000. App. 10a.
9
up the First District are overwhelmingly white. App. 9a,
13a.
The result of combining the four parishes into one
district from which the entire population elects two supreme
court justices is that white voters are in a substantial
majority, comprising 65.21% of the total population and
69.49% of the voting age population. App. 10a. The First
District could easily be split into two roughly equal supreme
court districts: one, comprised of Orleans Parish,
predominantly African American with a population of
557,515, and the other, comprised of the three remaining
parishes, predominantly white with a population of 544,738.9
App. 10a.
Judicial elections in Louisiana are extremely racially
polarized. Whites vote for white candidates and when given
a choice, African Americans overwhelmingly support
These two districts would fall well within the range of population of
existing supreme court districts; for example, the Second and Sixth
Districts have populations of 582,223 and 556,383, respectively. App.
10a.
10
African American candidates. White voters consistently fail
to support African American judicial candidates. This
political climate exists against an historical backdrop of
pervasive disenfranchisement on the basis of race.10 In
addition, the African American community continues to
suffer a legacy of discrimination that translates into
depressed socio-economic conditions today.
No African American has been elected to the Louisiana
Supreme Court from the First District or any other supreme
court district in modern times.11 Although African
Americans comprise 29% of the state’s population, few
African Americans have been elected to other offices within
the First District outside of Orleans Parish. The
10United States v. Classic, 313 U.S. 299 (1941); Louisiana v. United
States, 380 U.S. 145 (1965); Anderson v. Martin, 375 U.S. 399 (1964).
See also, Sobol v. Perez, 289 F. Supp. 392 (E.D. La. 1968) for a vivid
account of discriminatory practices in Plaquemines Parish.
1 The only African American to serve on the Louisiana Supreme
Court in this century was appointed to a vacancy on the court for a
period of 17 days during November, 1979. Under the Louisiana
Constitution, he was not permitted to seek election to the seat for which
he had been appointed. See La. Const, art. V, § 22(b).
11
combination of demographic, historical, and socio-economic
factors results in African American voters in the First
District being denied equal opportunity to participate in the
political processes leading to the nomination and election of
justices to the supreme court and therefore to elect
candidates of their choice.
12
REASONS FOR GRANTING THE WRIT
This Case Presents an Important Issue of the
M eaning of the Voting R ights Act on W hich
There is a Conflict Between the Circuits
A. The Question o f Whether Section 2 Governs Judicial
Elections is o f National Importance.
Cases challenging the election of judges under
Section 2 of the Voting Rights Act have been brought in
Ohio,* ll 12 Louisiana,13 Texas,14 Florida,15 Alabama,16 Georgia,17
nMallory v. Eyrich, 839 F.2d 275 (6th Cir. 1988)(challenge to the
countywide election of municipal judges in Cincinatti).
llChisom v. Roemer, supra; Clark v. Edwards, 725 F. Supp. 285
(M.D. La. 1988)(challenge to at-large election of family court, district
court, and court of appeals judges).
ULULAC v. Mattox, supra-, Rangel v. Mattox (5th Cir. No. 89-
6226)(challenge to the multi-county election of judges for the Thirteenth
Court of Appeals).
15Nipper v. Martinez, No. 90-447-Civ-J-16 (M.D. Fla.
1990)(challenge to the at-large election of trial judges in the Fourth
Judicial Circuit).
l6SCLC v. Siegelman, 714 F. Supp. 511 (M.D. Ala. 1989)(challenge
to the numbered post, at-large method of electing circuit and district
court judges).
17Brooks v. State Board o f Elections, Civ. No. 288-146 (S.D. Ga.
1989)(challenge to at-large method of electing superior court judges under
both Sections 2 and 5 of the Act; summary affirmance by this Court on
Section 5 issues, 59 U.S.L. Week 3293 (October 15, 1990), trial pending
on Section 2 claims).
13
Arkansas,18 Illinois,19 Mississippi,20 and North Carolina.21
Before the Fifth Circuit’s decisions in this case and LULAC,
in all of these cases courts had held that Section 2 governed
the elections of both trial and appellate court judges.
However, the effect of the decisions in Chisom and LULAC
have already been felt outside of the Fifth Circuit; thus in
SCLC v. Siegelman, 714 F. Supp. 511 (M.D. Ala. 1989),
the district judge recently ordered the parties to file briefs on
the defendants’ motion for reconsideration in light of
LULAC.
]SHunt v. Arkansas, No. PB-C-89-406 (E.D. Ark. 1989)(challenge to
the method of electing circuit, chancery, and juvenile court judges in
certain counties).
19Williams v. State Bd. o f Elections, 696 F. Supp. 1563 (N.D. 111.
1988)(challenge to the at-large method of electing Supreme Court,
Appellate, and Circuit Court judges from Cook County).
10Martin v. Allain, 658 F. Supp. 1183 (S.D. Miss. 1987)(challenge
to the at-large election of judges to state chancery and circuit judges in
three counties; district court found liability under Section 2, single
member district remedy established resulting in the election of African
American judges).
21 Alexander v. Martin, No. 86-1048-CIV-5 (E.D.N.C.)(challenge to
the statewide election of state superior court judges; under settlement, ten
African American candidates elected as superior court judges).
14
The opportunity for confusion caused by the decisions
below, and the consequent prejudice to voters’ and
candidates’ rights in jurisdictions where judicial election
cases are pending, would in itself warrant this Court’s
review of this case. Review is made more all the more
imperative in light of this Court’s recent affirmance of the
holding in Brooks v. State Board o f Elections that Section 5
of the Act covers judicial elections. 59 U.S.L. Week 3293
(October 15, 1990). Brooks reiterated this Court’s earlier
affirmance of the holding in Haith v. Martin, 618 F. Supp.
410 (E.D.jN.C. 1985), aff’d, A ll U.S. 901 (1986) that
Section 5 governs judicial elections since "the Act applies to
all voting without any limitation as to who, or what, is the
object of the vote." 618 F. Supp. at 413 (emphasis in
original).
As Judge Higginbotham noted in objecting to the
LULAC majority’s view that Section 2 does not apply to
judicial elections (concurring opinion):
15
To distinguish the Sections [2 and 5] would lead to
the incongruous result that if a jurisdiction had a
discriminatory voting procedure in place with
respect to judicial elections it could not be
challenged, but if a state sought to introduce that
very procedure as a change from existing
procedures, it would be subject to Section 5
preclearance and could not be implemented.
914 F.2d at 649. Nevertheless, the LULAC majority, since
it had to concede that Section 5 covered the election of
judges (App. 93a), reached precisely this "incongruous
result," one clearly at odds with this Court’s directive that
the Act be given its "broadest possible scope." Allen v. State
Board o f Elections, 393 U.S. U.S. 544 (1969). Accord,
Thornburg v. Gingles, 478 U.S. 30 (1986)." Certiorari
should be granted to resolve the confusion created by the
Fifth Circuit’s decision of the important issue presented by
Section 2(a) prohibits all States and political
subdivisions from imposing any voting
qualifications or prerequisites to voting or
any standards, practices or procedures which
result in the denial or abridgement of the
right to vote of any citizen who is a member
of a protected class . . . .
478 U.S. at 43 (emphasis in the original).
16
this case, an issue on which this Court has not yet spoken.
B. The Decision o f the Fifth Circuit Is in Square Conflict
with the Decision o f the Sixth Circuit in Malloiy v.
Eyrich.
In its first decision in the present case, Chisom v.
Edwards, 839 F.2d 1056, cert, denied, 488 U.S. __ , 102
L.Ed.2d 379 (1988), holding that Section 2 covers judicial
elections, the Fifth Circuit relied on substantially the same
reasoning as did the Sixth Circuit in Mallory v. Eyrich, 839
F.2d 275 (6th Cir. 1988). In overruling Chisom the Fifth
Circuit has placed itself directly in conflict with Mallory.
Compare, e.g., the discussion of Sections 2 and 5 in
Mallory, 839 F.2d at 280 and Chisom, 839 F.2d at 1063-
64, with that in LULAC, App. 93a.
In Mallory, a challenge to the election of Ohio
municipal court judges, the Sixth Circuit concluded that
Section 2 applies to the election of judges based on a
thorough review of the plain language of the statute and the
17
policy behind it,23 relevant legislative history, and judicial
interpretation of Section 5.24 In its decision, the Sixth
Circuit unequivocally rejected the reasoning now adopted by
the Fifth Circuit in two critical respects.
First, the Sixth Circuit concluded that there is "no basis
in the language or legislative history of the 1982 amendment
to support a holding" that when it used the word
"representative" in the 1982 amendment, Congress
intentionally engrafted an exception onto Section 2 that
removed judicial elections from the protective measures of
" By its express terms, the original Voting Rights Act of 1965, which
enacted a blanket prohibition against race-based discrimination in voting,
applied to judicial elections. "Vote" or "voting" was defined in the Act
as including "all actions necessary to make a vote effective in any
primary, special or general election, . . . with respect to candidates for
public or party office. . . ." §14(b)(42 U.S.C. § 19731(c)(1)). Judicial
candidates clearly were "candidates for public or party offices" within the
terms of the Act. When Section 2 was amended in 1982, Congress did
not change a single word in either Section 14(b) or the operative
provisions of the statute that defined its scope. It merely added, in
Section 2(b), a clear standard of proof for the violations outlined in the
old Section 2, which now had become Section 2(a).
24As Mallory notes, "Section 5 uses language nearly identical to that
of section 2 in defining prohibited practices - ‘any voting qualification
or prerequisite to voting, or standard, practice, or procedure with respect
to voting.”' 839 F.2d at 280.
18
the Act. 839 F.2d at 280. Compare LULAC, App. 75a-91a.
Second, the Sixth Circuit held that challenges to racially
discriminatory election mechanisms under Section 2 are not
controlled by the rule that the fourteenth amendment’s equal
population principle apparently does not apply to judicial
election districts. 839 F.2d at 277-78 (citing Wells v.
Edwards, 347 F. Supp. 453 (M.D. La. 1972), q ff’d, 409
U.S. 1095 (1973). Compare LULAC, App.80a-88a.
The conflict between the Fifth and Sixth Circuit’s
interpretation of the scope and meaning of Section 2 of the
Voting Rights Act should be resolved by this Court.
19
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari should be granted, the decision of the court below
reversed, and the case remanded for a decision on the merits
of petitioners’ claims under the Voting Rights Act.
Respectfully submitted,
W illiam P. Q uigley
901 Convention Center
Blvd.
Fulton Place, Suite 119
New Orleans, LA 70130
(504) 524-0016
R oy R odney , J r.
McGlinchey, Stafford,
Mintz, Cellini, Lang
643 Magazine Street
New Orleans, LA 70130
(504) 586-1200
P amela S. K arlan
University of Virginia
School of Law
Charlottesville, VA 22901
(804) 924-7810
*Counsel o f Record
J ulius L eV onne C hambers
^C harles Stephen R alston
D ayna L . C unningham
Sherrilyn A. Ifill
99 Hudson St., 16th Floor
New York, N.Y. 10013
(212) 219-1900
R onald L . W ilson
310 Richards Building
837 Gravier Street
New Orleans, LA 70112
(504) 525-4361
C. L ani G uinier
University of Pennsylvania
School of Law
3400 Chestnut Street
Philadelphia, PA 19104
(215) 898-7032
Attorneys fo r Petitioners
APPENDIX
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 89-3654
RONALD CHISOM, et al.,
Plaintiffs-Appellants,
UNITED STATES OF AMERICA,
Plaintiff-Intervenor- Appellant,
v.
CHARLES E. "BUDDY" ROEMER, et al.,
Defendants-Appel lees.
Appeal from the United States District Court
for the Eastern District of Louisiana
(November 2, 1990)
Before KING and HIGGINBOTHAM, Circuit Judges.*
PER CURIAM:
The plaintiffs in this action originally claimed that
defendants violated the Fourteenth and Fifteenth
Amendments to the United States Constitution and the Voting
* This decision is being made by a quorum, see 28 U.S.C. § 46(d).
2a
Rights Act of 1965, § 2, codified as amended, 42 U.S.C. §
1973 (Voting Rights Act). The district court ruled against
the plaintiffs on the constitutional claims and the Voting
Rights Act claims. The district court’s ruling on the
constitutional claims was not appealed. Thus, there remains
pending before this court an appeal of the district court’s
disposition of the Voting Rights Act claims.
In view of the fact that this court, sitting en banc in
Lulac v. Clements. 914 F.2d 620 (5th Cir. 1990), has
overruled Chisom v. Edwards. 839 F.2d 1056 (5th Cir.
1988) tChisom I). this case is remanded to the district court
with instructions to dismiss all claims under the Voting
Rights Act for failure to state a claim upon which relief may
be granted. See Falcon v. General Telephone Co.. 815 F.2d
317, 319-20 (5th Cir. 1987) ("[0]nce an appellate court has
decided an issue in a particular case both the District Court
and Court of Appeals should be bound by that decision in
any subsequent proceeding in the same case.... unless..
3a
controlling authority has since made a contrary decision of
law applicable to the issue.") (citations omitted); White v.
Murtha, 377 F.2d 428, 431-32 (5th Cir. 1967). Each party
shall bear its own costs.
REMANDED with instructions. The mandate shall
issue forthwith.
4a
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RONALD CHISOM, ET AL. CIVIL ACTION
VERSUS NO. 86-4057
CHARLES E. ROEMER, ET AL. SECTION "A
OPINION
[Filed September 13, 1989]
SCHWARTZ, J.
This matter came before the Court for nonjury trial.
Having considered the evidence, the parties’ memoranda and
the applicable law, the Court rules as follows. To the extent
any of the following findings of fact constitute conclusions
of law, they are adopted as such. To the extent any of the
following conclusions of law constitute findings of fact, they
are so adopted.
This is a voting discrimination case. Plaintiffs have
brought this suit on behalf of all black registered voters in
Orleans Parish, approximately 135,000 people, alleging the
Findings of Fact
5a
present system of electing the two Louisiana Supreme Court
Justices from the New Orleans area improperly dilutes the
voting strength of black Orleans Parish voters. Specifically,
plaintiffs challenge the election of two Supreme Court
Justices from a single district consisting of Orleans,
Jefferson, St. Bernard and Plaquemines Parishes. Plaintiffs
seek declaratory and injunctive relief under section 2 of the
Voting Rights Act, as amended, 42 U.S.C. §1973 (West
Supp. 1989)1, and under the Civil Rights Act, 42 U.S.C.
1 Section 2 provides in pertinent part:
(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 abridgment of the right of any citizen of the
United States to vote on account of race or color . . .
(b) A violation of subsection (a) of this section is
established if, based upon the totality of circumstances, it is
shown that the political processes leading to nomination or
election in the State or political subdivision 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 opportunity to participate in the political process and
elect representatives of their choice. The extent to which
members of a protected class have been elected to office in
the State or political subdivision is one circumstance 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.
6a
§1983 (West 1981)2, for alleged violations of rights secured
by the fourteenth3 and fifteenth4 amendments of the federal
Constitution.5
2 Section 1983 provides in pertinent part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State ..., subjects, or
causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation
of any rights, privileges or immunities secured by the
Constitution and laws, shall be liable to the party injured in
an action at law, suit in equity, or other proceeding for
redress.
The fourteenth amendment provides in pertinent part:
No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.
4 The fifteenth amendment provides in pertinent part:
The right of citizens of the United States to vote shall not be
denied or abridged by the United States or by any State on
account of race, color, or previous condition of servitude.
5 Declaratory relief is also sought under 28 U.S.C. §§2201 and
2202, which provide in pertinent part:
(a) In a case of actual controversy within its jurisdiction,
... any court of the United States, upon the filing of an
appropriate pleading, may declare the rights or other legal
relation of any interested party seeking such declaration,
whether or not further relief is or could be sought.
7a
I .The present Supreme Court Districts and the black
voting population; Minority or majority?
The Louisiana Supreme Court, the highest Court in the
state, presently consists of seven Justices, elected from six
Supreme Court Districts. Each Justice serves a term of ten
years. Candidates for the Louisiana Supreme Court must
have been a resident of that election district for at lease two
(2) years, and each member of the Supreme Court must be
a resident of the election district from which he or she was
elected.6 The State imposes a majority-vote requirement for
election to the Supreme Court. Since 1976, every candidate
runs in a single preferential primary, but each candidate's
political party affiliation is indicated on the ballot. If no
single candidate receives a majority of votes in the
preferential primary, the top two candidates with the most
votes in the primary compete in a general election. Five of
the districts elect one Justice each, but one district — the
6 See Pre-Trial Order Stipulation 19 at p.28.
8a
First Supreme Court District — elects two Justices.7 These
two positions are elected in staggered terms. No Justice is
elected on a state-wide basis, although the Supreme Court
sits en banc and its jurisdiction extends state-wide.8 One of
the seats in question is presently held by Justice Pascal F.
Calogero, Jr.; the other is presently held by Justice Walter
F. Marcus, Jr. Judges are not subject to recall elections.9
The five single member election districts consist of
eleven to fifteen parishes; the First Supreme Court District,
as stated above, consists of four parishes. No parish lines
are cut by the election districts for the Supreme Court.10
The Louisiana Constitution does not require that the election
districts for the Supreme Court be apportioned equally by
7 See Pre-Trial Order Stipulation 18, 21 at pp.28-29.
8 See Pre-Trial Order Stipulations 3-6, p.24. See also La. Const,
of 1974, art. 5, §§ 3, 4 & 22A; LSA-RS § 13:101 (West 1983).
9 See Pre-Trial Order Stipulation 23 at p.29.
See id. nos. 9-10 at p.26.10
9a
population.11 However, the Louisiana Constitution does
authorize the state legislature, by a two-thirds vote of the
elected members of each house of the legislature, to revise
the districts used to elect the Supreme Court and to divide
the first district into two single-member districts.12
The New Orleans metropolitan area is composed of
Orleans Parish, which has a majority black electorate, and
several suburban parishes which have majority white elec
torates. As of March 3, 1988, 81.2 percent of the black
registered voters within the First Supreme Court District
resided within Orleans Parish and 16.0 percent resided in
Jefferson Parish. Only 2.1 percent of the black registered
voters in the First District resided in Plaquemines and St.
Bernard Parishes.
The following two tables set forth specific population
data from the 1980 census:
11 See id. no. 12 at p.26.
12 See id. no. 24 at p.29.
10a
(1) For the six Supreme Court election districts:13 14
Dist- Total
rict# population
1 1,102,253
2 582,223
3 692,974
4 410,850
5 861,217
6 556.383
TOT.. 4,205,900
Black Total
\ J A T l l 4
379,101(34.39)
188,490(32.37)
150,036(21.65)
134,534(32.75)
256,523(29.79)
129,557(23.29)
772,772
403,575
473,855
280,656
587,428
361,510
Black
VAP(%)
235,797(30.51)
118,882(29.46)
92,232(19.46)
81,361(29.99)
160,711(27.36)
78,660(21.76)
(2) For the parishes in the First Supreme Court
District:15
Parish
Total
popula
tion
Black
popula
tion
Total
YAP
Black
VAP(%)
Jefferson 454,592 63,001(13.86) 314,334 37,145(11.82)
Orleans 557,515 308,149(55.27) 397,183 193,886(48.81)
Plaque
mines 26,049 5,540(21.27) 16,903 3,258(19.27)
St.
Bernard • 64,097 2,411( 3.76) 44,352 1,508( 3.40)
As of March 3, 1989, registered voter data compiled by the
13 See id. no. 13 at p.26.
14 Voting Age Population
15 See Pre-Trial Order Stipulation 15 at p.27.
11a
Louisiana Commissioner of Elections indicated the following
population characteristics:
(3) For the six Supreme Court election districts:
District Total registered Black registered
# voters voters(%)
1 492,691 156,714 (31.8%)
2 285,469 76,391 (26.8%)
3 379,951 74,667 (19.7%)
4 208,568 59,140 (28.4%)
5 464,699 119,239 (25.7%)
6 305,699 70,178 (23.0%)
(4) For the parishes in the First Supreme Court
District:16
Parish Total registered Black registered
voters voters(%)
Jefferson 202,054 25,064 (12.4%)
Orleans 237,278 127,296 (53.6%)
Plaquemines 14,574 2,796 (19.2%)
St. Bernard 38.785 1.558 ( 4.0%)
TOTAL 492,691 156,714 (31.8%)
According to the 1980 Census, the current configuration
16 See id. no. 16 at p.28.
12a
of election districts has the following percent deviations17
from the "ideal district"18 with a population of 600,843:19 20
District # Total
Population
Percent
Deviation
1 1,102,253 [-16.54%]:
2 582,223 - 3.10%
3 692,974 + 15.33%
4 410,850 -31.62%
5 861,217 +43.33%
6 556,383 - 7.40%
17 The percentage deviations appear to have been calculated as
follows:
% deviation = (actual district pop.- ideal district pop.) x 100
(ideal district population)
18 In its review of the memoranda, testimony and exhibits, the Court
was unable to locate any definition of the ''ideal district" apart from
reference to population. See Weber Report, Defendants’ Exhibit 2, p.48.
The Court therefore accepts the parties’ stipulation as to the "ideal
district" with the understanding that other factors of legal significance
may suggest such a district is less than "ideal”.
19 The "ideal district" population of 600,843 is calculated by taking
the total population of all districts (4,205,900) and dividing by seven, the
number of ideal districts.
20 The parties stipulated that District 1 shows a -8.27% deviation
from the "ideal district." See Pre-Trial Order Stipulation 14, p.27.
However, the definition of the ideal district is to take the state population
and divide it by the number of districts. The First District elects two
justices, therefore, in a comparison of the First District with the "ideal
district," the First District’s deviation should be multiplied by two, since
it elects two justices in what would otherwise be an "ideal” seven district
system.
13a
The relative numbers and population densities of black
persons registered to vote in each parish are also shown in
the parties’ stipulations that on December 31, 1988, black
persons constituted a majority of those persons registered to
vote in 226 out of an unspecified number of voting precincts
in Orleans Parish,21 22 whereas in Jefferson Parish black
persons constituted a majority of those persons registered to
vote in only 24 precincts. There are no census tracts in St.
Bernard Parish with a majority black population and there is
only one such census tract in Plaquemines Parish.23
With population size as the only stipulated indicia of an
"ideal district", the Court further finds that a district
consisting of just Orleans Parish would demonstrate an
approximate -7.2% deviation from the ideal district, and a
21 See United States’ Exhibit 47. The March 3, 1989 voter
registration data does not alter the number and/or identity of the majority
black precincts. See United States’ Exhibit 5.
22 See United States’ Exhibit 48. The March 3, 1989 voter
registration data does not alter the number and/or identity of the majority
black precincts. See United States’ Exhibit 6.
14a
district of Jefferson, Plaquemines and St. Bernard Parishes
would demonstrate an approximate -9.3% deviation from the
ideal district.23 By contrast, a district consisting of Orleans
and St. Bernard Parishes together would present a deviation
of only 3.4% and a district consisting of Plaquemines and
Jefferson Parishes would show a deviation of -20% from the
ideal district.
The defendants argue that a fairly drawn district could
consist of Plaquemines, St. Bernard and Orleans Parishes,
with a deviation of only 1.1% from the ideal district.24 Such
a district is also geographically compact, but would have a
black voter registration of only 45.3%. Moreover, a district
thus drawn would isolate Jefferson Parish as a district, with
a deviation of -24.3% from the ideal, unless of course
further redistricting is done affecting parishes and voting 23 24
23 The Court’s calculations of percentage deviations based on
stipulated data yielded the same figures as set forth in Weber’s Report,
Table 11, p.50.
24 See Weber Report, p.53.
15a
districts not presently under consideration or before this
Court.25 26
Thus, if two districts were drawn without crossing
parish boundaries (as is the case in the rest of the state) and
if the "ideal district" were based upon population alone, no
single member district may fairly be drawn in which blacks
would constitute a majority of the voting age population and
registered voters. Either Jefferson Parish or Orleans Parish
would have to be isolated in such a districting scheme,
leaving a second district with an atypically low voter
population. Moreover, to date, no parish is isolated as a
single district in this state. The Court does not find any of
the suggested divisions of the First District to be a
particularly "ideal" result.25 It appears the only way to
25 Any such redistricting would best be done by the state legislature,
which may revise the Supreme Court districts by a 2/3 vote of each
house. See Pre-Trial Order Stipulation 11, p.26.
26 This should not be construed as a determination at this time by the
Court that if a remedy were required the Court must adhere to parish
boundaries in creating new districts.
16a
provide a sizable single member district in which blacks
would constitute a voting age majority would be to create a
gerrymandering district lacking geographical compactness.
II. Political Cohesion and Racially Polarized Voting
A wide range of evidence was made available to the
Court for the purpose of evaluating whether plaintiffs’
minority is so politically cohesive that the districting here in
question thwarts distinct minority interests. Such evidence
is also relevant to the related question of whether racial bloc
voting has occurred within the First Supreme Court District.
Evidence relevant to these issues includes data
pertaining to judicial and nonjudicial elections to be
evaluated against the overall political background in the New
Orleans area.
The Court will first offer some preliminary findings
bearing generally upon the scope of evidence to be
considered and upon the use of statistical data. The Court
will next discuss the historical background of minority
17a
discrimination leading to the present claims. A detailed
analysis of facts pertinent to both the issues of political
cohesion and racial bloc voting will follow.
The Court finds that judicial elections are sufficiently
different from elections for legislative and administrative
offices to warrant caution in making inferences about voter
behavior using the techniques employed to analyze voter
polarization and vote dilution in those other types of
elections.27 In particular, judicial elections as contrasted to
those ■ other elections are characterized by lower turnout,
higher roll-off rates, and by less voter interest. For
example, analyses of the level of competition for judicial
offices compared to state legislative offices within the four
parish area of the First Supreme Court District during the
past decade indicate that almost 64 percent of judicial races
have been uncontested, whereas only about 30 percent of
27 See generally Weber Report, Defendants’ Exhibit 2, pp.2-10.
While relying upon Dr. Weber’s report, the Court finds much of the
matter here discussed is general knowledge of which the Court might
properly take judicial notice.
18a
state senate and house of representatives elections have gone
uncontested. The number of candidates for judicial offices
is particularly low in the election years when the terms of
incumbent judicial officers expired. However, the Court has
also considered the testimony, statistical evidence, and expert
reports pertaining to other elections, and the Court generally
finds that such evidence is consistent with the import of data
from judicial elections, even though the Court is inclined to
give evidence relating to judicial elections greater weight.
In analyzing statistical data, the Court finds that the best
available data for estimating the voting behavior of various
groups in the electorate would come from exit polls
conducted upon a random sample of voters surveyed as they
leave the polling place on election day, but such evidence is
not available. The best available data for estimating the
participation of various groups in the electorate is sign-in
data contained in the official records of the Parish Registrar
of Voters. The best indicator of participation is obtained by
19a
dividing the number of persons who signed-in to vote by the
number of persons in the voting age population.
In the absence of exit poll, sign-in, and voting age
population data, analysts employ the bivariate ecological
regression technique28 to estimate the voting behavior of
various groups in the electorate. Because this analysis
produces only an estimate of voting behavior, the Court
finds it should consider, but is not necessarily in a position
to consider, what factors are present in the analysis, such as:
the number of cases; variations of the independent and
dependent variables; the timing of electoral data as compared
to the sign-in, voter registration, or the voting age population
data; and comparability of the geographical units (usually
precincts) used in the analysis. From the record before it,
28 "Regression analysis is a statistical technique that can be used to
develop a mathematical equation showing how variables are related." D.
Anderson, D. Sweeney and T. Williams, Statistics for Business and
Economics, 406 (2d Ed. 1981). The variable being predicted by the
mathematical equation (in this case, the percentage of the vote won by
each candidate) is the dependent variable. The variables used to predict
the value of the dependent variable are the independent variables. In this
case, the independent variables are the percentages of voters who are
black or white. See Weber Report, Defendants’ Exhibit 2, pp. 10-11.
20a
the Court is definitely not in a position to assess other
important aspects of statistical analyses, such as use of
proper procedures to verify the accuracy of the data, and
proper functioning of a statistical analysis computer program.
A further challenge is to avoid becoming entrenched in a
"numbers game" that obscures the forest for the trees. The
parties have often times been of scant assistance by offering
numerical data (such as the total percentage deviations from
ideal districting) lacking in readily apparent meaning. It thus
appears that precise correlation between the race of voters
and their voting preferences cannot be made on the basis of
the statistical analyses presented. However, no better data
is provided, and the Court has given the statistical data
considerable weight.29
29 This Court has additional reservations regarding use of much of
the statistical analyses here presented, which reservations are expressed
in the Court’s opinion on plaintiffs’ motion for preliminary injunction.
See Chisom v. Edwards. 690 F.Supp. 1524, 1528 & n.25 (E.D.La.),
vacated 850 F.2d 1051, reh’g denied. 857 F.2d 1473 (5th Cir. 1988).
21a
In any event, whether testimony, stipulated data, or
statistical analysis is cited, the Court’s evaluation of the
presence of political cohesion and racially polarized voting
includes consideration of the race of the voters, the race of
the candidates, and the access the minority has had to the
political process.
A. Access to the Political Process —
Effect of Past Discrimination30
The Court’s analysis of the presence of racial bloc
voting and political cohesion must be made against a
background evaluation of the extent to which political
opportunities are presently hampered by vestiges of past
discrimination.31 The Court’s historical findings are based
30 Monroe v. City of Woodville. No. 88-4433, slip op. (5th Cir.
Aug.30, 1989), suggests that the Court need not reach the Thornburg
totality of the circumstances inquiry, if it finds that the plaintiffs fail to
establish all three elements of the initial 3-part test in Thornburg. This
Court nonetheless makes the following findings, in part to provide a full
record of findings and in part because the inquiry into these elements
overlaps to some extent the inquiry into political cohesion and bloc
voting.
31 See Thornburg v. Gingles, 478 U.S.30, 106 S.Ct. 2752, 2776, 92
L.Ed.2d 25 (1986).
22a
primarily upon stipulated facts, with reference to live
testimony where indicated.
L. Voting
Louisiana has had a past history of official
discrimination bearing upon the right to vote. In this regard,
the parties stipulated32 to most facts found by the three judge
panel in Major v. Treen.33 including the imposition in 1898
of property and educational qualifications on the franchise,
and the enactment of a "grandfather" clause34 to allow
whites, but not similarly situated blacks, to vote even when
they did otherwise qualify. In 1923, Louisiana authorized
white only primaries, which continued until their invalidation
~'2 See Pre-Trial Order Stipulations 36-38, p.38.
33 574 F.Supp. 325 (E.D.La. 1983).
34 In Guinn v. United States, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed.
1340 (1915), the Supreme Court ruled that "grandfather1' clauses violated
the Fifteenth- Amendment. The state then amended its constitution to
replace the "grandfather" clause with a requirement that an applicant
"give a reasonable interpretation" of any section of the federal or state
constitution as a prerequisite to voter registration. In Louisiana v. United
States, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709 (1965), the
Supreme Court held the "interpretation" test to be another aspect of
illegal disenfranchisement.
23a
in 1944.35 In the 1950s, Louisiana instituted "citizenship"
tests and anti-single-shot voting laws.36 In 1959, the State
Democratic Party adopted a majority vote requirement for
election of party officers.37
The State of Louisiana is also subject to special
provisions of the Voting Rights Act because in 1965 it
employed a "test or device," as defined in the Act, as a
prerequisite to register to vote. Less than fifty percent of
the voting-age population (at that time 21 years of age or
older) voted in the 1964 presidential election. Moreover,
since the enactment of the 1965 Voting Rights Act, federal
examiners have been appointed to enforce the Act’s
provisions in twelve Louisiana parishes including, from the
35 See Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 1052, 88 L.Ed.
1594 (1944).
’6 For a description of single-shot bullet voting, see Thornburg v,
Gingles. 478 U.S. at 38, n.5, 106 S.Ct. at 2760, n.5; City of Rome v.
United States. 446 U.S. 156, 184 n.19, 100 S.Ct. 1548, 1565 n.19, 64
L.Ed.2d 119 (1980).
37 See Pre-Trial Order Stipulation 42 at p.39.
24a
First District, Plaquemines Parish.38 The federal examiners
then listed a total of 26,978 persons as eligible to vote in
those parishes;39 of that number 25,138 (93.18 percent) were
black. As of January 1, 1989, 15,432 persons remained on
the voting rolls as federally listed voters, who are presumed
not otherwise registered to vote.40 At the time of
Plaquemines’ designation, only 96 black persons in the
parish were registered to vote. However, by October 1967,
federal examiners had listed 1,254 black persons in
Plaquemines Parish, resulting in an increase in the number
of black persons registered to vote in Plaquemines Parish
from 96 to over 1,300.41
See 42 U.S.C. §1973d; Pre-Trial Order Stipulation 44, pp.39-40.
39 See 42 U.S.C. §1973e(b); Pre-Trial Order Stipulation 44, pp.39-
40.
See 42 U.S.C. §1973e(a); Pre-Trial Order Stipulation 44, pp.39-
40.
- See Pre-Trial Order Stipulation 45, p.40.41
25a
In sum, notwithstanding historic disenfranchisement,
voter registration since 1965 has demonstrated generally
increased participation by black voters, and today no state
action or laws prevent black participation in the electoral
process. In the summer of 1984, the most recent analysis
of voter registration by race showed over seventy percent of
both races are registered to vote and that the gap in between
black and white voter registration continues to close. In
fact, as previously indicated, black voter registration now
exceeds white voter registration in Orleans Parish.
2, The History of the Redistricting Plan Here in Question
For the past 110 years, the First Supreme Court District
has encompassed the greater metropolitan New Orleans area.
The present districting plan for the Supreme Court, which
includes the First Supreme Court District consisting of the
parishes of Orleans, St. Bernard, Plaquemines and Jefferson,
was first drafted in the 1879 Constitution for the State of
Louisiana. Since that time, the voters in the First Supreme
26a
Court District have elected two justices on the Supreme
Court. In each of the Constitutions since then, 1898, 1913,
1921 and 1974, this districting plan has been readopted
without objection. After the 1974 Constitution had been
ratified, the United States of America, through the Justice
Department, precleared the Constitution electing not to
challenge the composition of the districts and the number of
justices to be elected from each district. Cognizant of the
factors identified in Overton v. City of Austin. 871 F.2d
529, 540 (5th Cir. 1989), this Court finds that the creation
of the present First Supreme Court districting scheme was
not devised for discriminatory purposes. The district was
created because the parishes of Orleans, St. Bernard,
Plaquemines and Jefferson were considered an inseparable
metropolitan or quasi-metropolitan area.
Access to the political process is further confirmed by
the history of the present districting plan, which is set forth
in the 1974 Louisiana Constitution. The delegates to
27a
Louisiana’s 1973 Constitutional Convention were 132 in
number. There were 105 elected delegates, all of whom
were elected from their respective districts of the Louisiana
House of Representatives. The remaining delegates, 27 in
number, were appointed by the Governor to represent
various facets of the Louisiana populace. Twelve of the
delegates were black.42 Each delegate to the convention,
whether elected or appointed, had the right to select
committee assignments.43 None of the blacks chose to be on
the Judiciary Committee; therefore, the Judiciary Committee
for the 1973 Constitutional Convention consisted of eighteen
delegates, all of whom were white.
The voting record of black delegates for the districting
plan and its amendments shows the following:
4' A listing of the names, status as elected or appointed, and home
districts of the black delegates appears in the Appendix to this Opinion,
Table 4.
43 See Records of the 1973 Louisiana Constitutional Convention, vol.
1, pp.6 and 35, Rule 51.
28a
A proposed amendment to divide the state into seven
Supreme Court Districts with a Justice elected from each
district was defeated by a vote of 85-27, with a black
delegate vote of one for the amendment, eleven against, and
one absent.
A proposed amendment to divide the state into seven
equally apportioned Supreme Court Districts with a Justice
elected from each district was defeated by a vote of 67-47,
with a black delegate vote of seven for the amendment, four
against, and one absent.
Another amendment proposed that after January 1,
1975, the legislature divide the first district (Jefferson,
Orleans, Plaquemines, and St. Bernard Parishes) into two
districts with one Justice to be elected from each district. In
support of this amendment, a white delegate argued:
We have seven Supreme Court Justices, yet we
have six supreme court districts, two being elected
from one. If I follow the feeling of this
constitutional right, we argued single member
districts. Why should we make an exception here,
why here? Why provide that district one is going
29a
to have two Justices and the rest of the districts are
going to have one? Why not have seven districts?44
A black delegate elected from Legislative District 97 in
Orleans Parish argued that the present arrangement of the
Supreme Court Districts should not be changed.45 46 This
amendment was defeated by a vote of 63-50, with a black
delegate vote of five for the amendment, and seven against.
The final districting plan, providing for six Supreme
Court Districts, was adopted by a total vote of 103-9, with
a black delegate vote of eight for the final plan, one against,
and two absent.44 The Constitution proposed by the 1973
Convention was approved by the federal Department of
Justice47 and ratified by the voters on April 20, 1974. The
present districting may now be altered by a two-thirds vote
Id- vol. VI, p.720.
45 Id. at 714-15.
46 See Pre-Trial Order Stipulation 31, pp.37-38. The parties’
stipulation does not account for the twelfth delegate.
See 42 U.S.C. §1973c (1982). See also Chisom v. Edwards. 690
F.Supp. 1524, 1525 & n.4 (E.D.La. 1988).
30a
of the elected members of each house of the legislature.48
Although certain proposals are pending, no amendment is
forthcoming as of this date.
L Other Discrimination
In addition to data pertaining to franchisement, other
stipulated data demonstrate the discrimination in education,
housing, employment, and general access to political
processes that has sadly figured prominently in Louisiana’s
history.49 For example, Louisiana enforced a policy of racial
segregation in public education prior to 1954, in transporta
tion prior to 1964, and in accommodations prior to 1964,
until these practices were outlawed by the United States
Supreme Court and Congress.
Vestiges of such discrimination still exist, as in the
State’s system of higher public education; as recently as
48 See Pre-Trial Order Stipulation 11, p.26 and note 15 supra.
49 The Court will not detail here the parties’ Stipulations in this
regard, appearing in the Pre-Trial Order as Stipulations 36-45 at pp.38-
40 and 93-99 at pp.53-54.
31a
August 1988, a panel of three judges found Louisiana higher
public education operated as a dual system.50 A prime
example of such vestiges of past discrimination can be found
in the legal profession, an important point of access to the
political process. Until 1947, no black persons were
admitted to law school in Louisiana. At the present time,
Louisiana operates two public law schools: Southern
University attended by virtually all of the State’s public
black law student population and the academically superior
LSU Law School, attended by most of the white public
student population.51 All the current officers of the
Louisiana Bar Association are white, and no black judge has
ever served as one of the officers of the Louisiana District
Judges Association. The Court further accepts the testimony
of Judge Revius O. Ortique that the New Orleans Bar
50 See United States v. State of Louisiana. 692 F.Supp. 64?
(E.D.La. 1988).
51 In making these findings, the Court takes judicial notice of facts
in the record of proceedings before the three judge Panel in United States
v. State of Louisiana. Civil Action 80-3300.
32a
Association has never endorsed a black candidate.
The relatively lower economic status of local black
residents further affects accessibility to better education and
such practicalities as campaign funding.52 In this regard,
both Judge Ortique and Judge Bemette Johnson testified that
black candidates have considerable difficulty raising
campaign funds and that generally, the better funded
candidates win.
A Recent Access to Political Candidacy
Black candidacy is a relatively recent phenomenon, and
the parties’ stipulations detail the extent to which blacks have
been unsuccessful in their bids for judicial office and/or have
not run for judicial office. The Court heard testimony from
several unsuccessful black judicial candidates, including
Civil District Court Section "H" Judge Revius Ortique, who
testified regarding his unsuccessful bid for a seat on the
Supreme Court in 1972; Melvin Zeno, Assistant District
52 See Pre-Trial Order Stipulations 101-9, pp.54-55.
33a
Attorney for Jefferson Parish and practicing attorney, who
was unsuccessful in a bid for Division "L" of the 14th
Judicial District Court in Jefferson Parish; and Anderson
Council, who testified regarding his unsuccessful 1987 bid
for Juvenile Court Judge in Jefferson Parish. The court also
heard testimony from Edwin Lombard concerning his
unsuccessful bid for the statewide office of Secretary of State
in 1987.
Melvin Zeno testified that he maintained a low profile
during his-campaign in order to keep his race unknown.
Mr. Zeno turned down personal appearances and excluded
certain of his qualifications from his campaign materials for
the purpose of obscuring his race. Additionally, Mr. Zeno’s
opponent was an area attorney who had been a state
legislator for approximately five to seven years and had good
name recognition in Jefferson Parish. Mr. Zeno also
testified that he spent only half what his opponent spent in
34a
campaigning for the judicial seat.53
Likewise, Anderson Council testified that he maintained
low visibility during his campaign in an attempt to keep the
white public from learning he was black. Mr. Council also
testified that he spent only 5 % of the total campaign moneys
spent by all the candidates.54
In the 1987 statewide election for Secretary of State,
Rudy Lombard had the same name recognition problem that
Melvin Zeno encountered. Mr. Lombard ran opposite Fox
McKeithen, a candidate with great name recognition due to
the fact that his father was a former governor of the state.
In the statewide election, Mr. Lombard did not advance to
the runoff; however, the returns from the primary parishes
in the First Supreme Court District show that Lombard was
the leader. If the returns in the rest of the state had been
like those in the First Supreme Court District, Mr. Lombard
53 SgS Transcript p. 81.
54 See Transcript p. 92.
35a
would have made the runoff as the election front runner.55
In addition, the Court heard testimony from Civil
District Court Section "I" Judge Bernette Johnson, who
testified that she would not run for the Supreme Court
notwithstanding her perceived qualifications because of her
speculation that she would not win. Stipulated statistical
data pertaining to election of judicial offices elected on a
parish-wide basis in the First Supreme Court District shows
that black persons currently serve as judges only in Orleans
Parish.56
For example, only two black persons have ever run for
a seat as Justice of the Louisiana Supreme Court in this
century; no black person has been elected to the Louisiana
Supreme Court in this century; and the only black person to
serve on the Supreme Court in this century was attorney
Jessie Stone, who was apppointed to a vacancy on the
55 See Appendix to this opinion, Table 6.
56 See Appendix Tables 1 and 3.
36a
Louisiana Supreme Court for a period of 17 days, from
November 2, 1979, through November 19, 1979.
Nevertheless, the significance of black candidacy must be
remarked, however recent its development.
The two black candidates ran in special elections for the
two seats from the First Supreme Court District in 1972.
Each chose to become a candidate for a different seat, but
the evidence fails to demonstrate this candidacy or the
outcome were dictated by racial factors. Judge Revius
Ortique chose to run against three white candidates,
including present Justice Pascal Calogero, one of the more
"liberal" Justices, rather than to compete with Justice
Marcus, one of the more "conservative" judges, because like
Justice Calogero, Judge Ortique had no prior judicial
experience at that time. Earl J. Amedee competed against
four white candidates for the other position. However, in
light of the candidates’ failure to obtain the support of the
black communities, discussed below, the court cannot find
37a
that their candidacy was limited by vestiges of past
segregation. Rather, their participation suggests increasing
access to judicial candidacy.
It is true that since January 1978, a position in the First
Supreme Court District has been filled by contested primary
elections in 1980 and 1988, and there were no black
candidates in either of the elections. Judge Ortique and
Judge Johnson both testified they would not run again
because they cannot win. The Court rejects this testimony
as speculative, and lacking probative value; if black
candidates do not run and increase their notoriety, they
surely cannot win.
Notwithstanding Louisiana’s history of discrimination,
the recent careers of several of New Orleans’ black
politicians demonstrate the increased access minority
members have had to local political processes, including the
judiciary. While such success is usually due to large support
by the black community, the white vote has contributed
38a
significantly to the election of black candidates.
Such increased political access is demonstrated by the
political career of former New Orleans Mayor Ernest
Morial. He was the first black person to serve on the
Louisiana Court of Appeal in this century, elected in 1972
in a contested election against a white candidate to a seat
from District 1 of the 4th Circuit Court of Appeal (Orleans
Parish). At the time of his election, Mr. Morial was a judge
on the Orleans Parish Juvenile Court, a position to which he
was appointed in 1970. He served on the court of appeal
until 1977 when he resigned to become Mayor of the City of
New Orleans.
No black person has served on the court of appeal in
this century from an election district encompassing Jefferson,
St. Bernard or Plaquemines Parish, but the recent history of
the Orleans Parish Civil District Court presents a different
picture:
39a
Israel Augustine, a black lawyer, was unopposed in his
1981 election to an open seat on District 1 of the 4th Circuit
Court of Appeal (Orleans Parish). At the time of his
election, Mr. Augustine was serving as a member of the
Criminal District Court of Orleans Parish. Joan Armstrong,
a black lawyer, was unopposed in her 1984 election to an
open seat on District 1 of the 4th Circuit Court of Appeal
(Orleans Parish). At the time of her election, Ms.
Armstrong was serving as a judge in the Juvenile Court of
Orleans Parish, a position she served by appointment
following Mortal's resignation in 1972 to run for the 4th
Circuit Court.
Judge Ortique was the first black person to serve on the
Orleans Parish Civil District Court, having been
recommended for appointment as ad hoc judge in Division
B of the court by Justices Calogero and Marcus in 1978.
Judge Ortique was serving as an ad hoc judge, when he
defeated a white challenger for Division H of the court in
40a
1979. He was unopposed for reelection in 1984.
In 1984, Judge Bemette Johnson became the first black
candidate to defeat a white candidate in a contest for an open
seat on the Orleans Parish Civil District Court. In 1986,
Yada Magee, a black lawyer, defeated a white candidate in
a contest for an open seat on the Orleans Parish Civil
District Court.
The first black person to serve on the Orleans Parish
Criminal District Court in this century was Israel Augustine
who was appointed in 1969. As an incumbent, Judge
Augustine defeated two white challengers in the 1970
Democratic primary election to become the unopposed
Democratic nominee in the general election. He served on
the Orleans Parish Criminal District Court until 1981 when
he was elected to the court of appeal. No black person,
other than Israel Augustine, has been elected to the Orleans
Parish Criminal District Court in this century.
In 1984, Ernestine Gray became the first and only black
41a
person in this century to defeat a white candidate in a
contest for an open seat on the Orleans Parish Juvenile
Court. In 1988, Dennis Dannel became the first and only
black person in this century' to defeat a white incumbent
candidate in a contest for the Orleans Parish Traffic Court.
No other black person has been elected as an Orleans Parish
Traffic Court judge in this century.
In 1986, Bruce McConduit became the first and only-
black person in this century to defeat a white candidate in a
contest for an open seat for the Orleans Parish Municipal
Court. No other black person has been elected as a
municipal court judge in Orleans Parish in this century.
In this century, no black person has served as a judge
in St. Bernard of Plaquemines Parish, but since 1978, no
black persons have been candidates for a judgeship in the
parishes of St. Bernard and Palquemines. In this century,
no black person has been elected to the First or Second City
Court for New Orleans. Since 1978, no black candidate has
42a
been elected in a contested election to parish-wide office in
St. Bernard, Plaquemines and Jefferson.
The above facts show many areas of judicial office in
which black candidates have not participated. However, this
Court, is not prepared to make a blanket finding of restricted
access to candidacy, given recent significant strides in this
area. Moreover, at least in so far as relates to the recent
elections of Orleans Parish Criminal Court Judges and
Orleans Traffic Court Judges, blacks have crossed race lines.
5 ̂ Other Thornburg Factors
The Court further notes that there is no suggestion or
record evidence of racial overtones or appeals in judicial or
other elections, nor of a lack of responsiveness on the part
of judges or other elected officials to the particularized needs
of the members of the minority group.
B. Analysis of Racial Block Voting
and Cohesion______________
L. The Judiciary
Since 1976, candidates for judicial office do not run in
43a
partisan elections. Instead, all candidates for all of the
offices to be elected on a given date run in the open primary
election. However, a candidate’s political party enrollment
is indicated on the ballot. There is a majority-vote
requirement in elections for judicial office. If no candidate
receives a majority of the vote in the primary, the top two
vote-getters then compete in a general election. Parish-wide
judicial offices are elected to a designated position.
m Elections for Supreme Court Justices from the First
District______________________________________
Since January 1978, a position on the Supreme Court
for the State of Louisiana has been filled by contested
elections in 1980 and 1988. These contested positions were
filled in the primary elections. There were no black
candidates in either of the elections. However, weighted
regression analysis suggests the following allocation of
votes:57
57 See Weber Report, Appendix B, pp. B -l, 2 and 3.
44a
Year Election
% of Black
Voters for
Winning
Winner Candidate
% of White
Voters for
Winning
Candidate
1974 General Calogero 98.3 71.0
1980 Primary Marcus 77.5 69.7
1988 Primary Calogero 59.9 64.7
Homogeneous Precinct Analyses show:
Year Election
% of Black
Voters for
Winning
Winner Candidate
% of White
Voters for
Winning
Candidate
1974 General Calogero 96.4 71.0
1980 Primary Marcus 75.3 69.3
1988 Primary Calogero 59.3 64.9
Unweighted Regression Analyses suggest:
Year Election
% of Black
Voters for
Winning
Winner Candidate
% of White
Voters for
Winning
Candidate
1974 General Calogero 98.6 71.7
1980 Primary Marcus 77.9 71.2
45a
1988 Primary Calogero 60.7 65.7
Thus, the candidate supported by a majority of black
voters was elected in each instance. Although no statistical
evidence was presented concerning the racial voting patterns
in the 1972 special election for the First Supreme Court
District, a black candidate ran for both of the available seats.
One candidate, Judge Ortique testified that there was a
substantial number of blacks who crossed over and supported
the white candidate.58 Judge Ortique received 27,648 votes
(14.0%) in the First Supreme Court District and 21,744
votes (20.7%) in Orleans Parish.59 From the statistics that
are available concerning the 1972 special election, it appears
that there was a black crossover in the election for the
second Supreme Court seat in the First District. In that
58 See Trial Transcript p. 30.
For election results, see Appendix in this Opinion, Table 5. A
majority of the black vote in Orleans would have to be 50% of 53.6%,
or 26.8% of the black vote.
46a
election, Mr. Amedee, the only black candidate, received
only 11,872 votes (5.8%) in the First Supreme Court
District and 8,997 votes (8.5%) in Orleans Parish, revealing
that there was even a greater black crossover vote than in
the Ortique/Calogero race.60
Based upon the foregoing, the Court finds there is no
pattern of racial bloc voting in the four most recent elections
for Supreme Court Justice from the First Supreme Court
District.
tn Other Judicial Elections
Nor is there a usual pattern of defeat for the black
minority’s preferred candidates in the 75 other judicial
elections within the four parishes of the First Supreme Court
District between 1978 and the present.
Since January 1978, in the parishes that constitute the
First District, there have been 51 instances in which one of
the judicial positions have been filled by contested election.
60 See Appendix in this Opinion, Table 5.
47a
For these 51 contested judicial positions, 66 primary and
general election contests have been held to fill the seats at
issue. Black persons have participated as candidates against
white persons for 21 of the contested judicial positions and
in 30 of the primary and general elections conducted to fill
those positions. The remaining 30 contested judicial
positions and the 36 elections necessary to fill those positions
involved white candidates only. Most importantly, however,
the minority candidate of choice has been elected in 62.7%
of the elections.61
Ecological regression analyses for 34 judicial elections
(24 primaries and 10 general elections)62 show that there is
significant crossover voting among both white and black
voters injudicial elections. A considerable number of black
voters do not always support the black candidate, nor do the
white voters always support the white candidate.
61 See Appendix Table 2.
62 See United States’ Exhibit 16.
48a
In addition, the Court heard testimony from Melvin
Zeno who received significant endorsements from white
Jefferson Parish officials and from primarily white political
organizations in his bid for District Court Judge in Jefferson
Parish during 1988.6? The willingness of prominent white
politicians to actively support black candidates demonstrates
that crossover politics exists even in Jefferson Parish.
Lionel Collins was the first and only black person to
serve as a judge in Jefferson Parish in this century. Judge
Collins was appointed to a seat on the 24th Judicial District
Court in 1978. As an incumbent, he was supported by
prominent political factions and was unopposed for both his
initial election to another seat in 1978 and for his reelection
in 1984. Judge Collins died in April 1988 before
completing his term in office.
There'are two city courts in New Orleans for which
judges are not elected on a parish-wide basis. All of the
63 See Trial Transcript, pp. 67-68.
49a
persons residing in Orleans Parish except for those persons
who reside on the West Bank of the parish in the 15th Ward
(Algiers) are eligible to vote for the three members of the
First City Court for New Orleans. All persons residing on
the West Bank of the parish in the 15th Ward (Algiers) are
eligible to .vote for one member of the Second City Court
for New Orleans. Since 1978 there have been 4 instances in
which a First City Court judgeship position has been filled
by contested election, and 5 primary and general elections
have been held to fill the 4 positions. Black persons have
participated as candidates against white persons for 3 of the
contested positions and in 4 of the elections held to fill those
positions.
In 1988, black candidate Dennis Dannel achieved his
victory for Orleans Parish Traffic Court Judge
notwithstanding other black leaders’ endorsements of
Dannel’s white opponent. For example, both former Mayor
Ernest Morial and State Senator Bill Jefferson endorsed
50a
white candidate Lambert Hassinger in his bid for reelection
to Traffic Court against Dannel.64
T Exogenous Elections
In the 1987 primary election for Secretary of State,
there were two black candidates and seven white
candidates.65 Weighted ecological regression analysis for the
1987 primary election for Secretary of State indicates that in
the four parishes that constitute the First District, over 80
percent of black voters and under 20 percent of white voters
cast their votes for Edwin Lombard, a black candidate.
In the 1987 Secretary of State primary election, Edwin
Lombard received 35 percent of the vote in the four parishes
that comprise the First District, to finish as the plurality
winner. He received a majority of the votes cast within
Orleans Parish, but obtained only 20 percent of the votes
cast in Jefferson, Plaquemines and St. Bernard Parishes.
51 See Times-Picayune 11/2/88, at B-3; 11/7/88, at B.2
65 See Appendix Table 6.
51a
Additional Findings
In First District elections, there is a majority-vote
requirement and staggered terms; single-shot voting is not
allowed.
Cross-over voting by voters of one race to support
candidates of another race is occurring increasingly in
Orleans Parish elections for non-judicial offices indicating a
pattern of both white and black voters to look at factors
other than the race of candidates in making election choices.
Cross-over voting by white voters to support black
candidates for non-judicial offices in Orleans Parish occurs
on a regular basis with the result that black candidates
frequently win parish-wide offices such as mayor,
councilman at-large, and school board posts.
Roll-off in Orleans Parish judicial elections by black
voters is sometimes large enough to prevent black candidates
from winning elections in which white candidates participate.
Moreover, black and white voters in Orleans Parish
52a
participate at approximately equal rates in recent elections
for major office (President, U.S. Senate, Governor, and
Mayor).
Factual Conclusion
Based upon the totality of circumstances before the
Court, the Court is unable to find, and the plaintiffs, for the
reasons hereinabove stated have failed to prove by a
preponderance of the evidence as a factual matter, that a
bloc voting majority is usually able to defeat candidates
supported by a politically cohesive geographically insular
minority group.66 The overall present reality in the Court’s
view is not a picture of racial polarization to the detriment
of the minority plaintiffs isolated in Orleans Parish, but
rather is an emerging political process in Metropolitan New
Orleans, wherein the talents of black individuals as leaders
in the judiciary and in other traditionally political offices
have been recognized by black and white voters. A brief
66 In reaching this conclusion, the Court has given great weight to
the expert reports of Dr. Ronald E. Weber and Dr. Robert S. Miller.
53a
glimpse at the statistical evidence serves to demonstrate that
black individuals constitute a clear minority of elected
officials, who have risen to positions of political prominence
primarily in Orleans Parish only, where the greatest number
of black individuals in the Metropolitan area reside. But the
black community has been able to elect their candidates of
choice in a significant number of elections.67
In reaching this conclusion, the Court has noted the
opinion testimony of Dr. Engstrom to the effect that racially
polarized voting exists. However, as will be detailed below
in the Court’s discussion of the applicable law, the overall
focus of the Court’s inquiry must be whether the minority
candidate can elect its candidates of choice. As this Court
previously stated:
Whether Dr. Engstrom’s
analysis in this case comports with
what even the plurality was
approving in Thornburg is unclear.
67 While the Court’s conclusion applies to the entire four-parish area
of the First District, the Court finds that its conclusion is even stronger
vis-a-vis the plaintiff-class, black Orleans Parish voters.
54a
While Dr. Engstrom centered his
analysis in this case on the race of
the candidates, the plurality stated
that "the race of the candidate per se
is irrelevant to racial bloc voting
analysis." Id. at 67, 106 S. Ct. at
2775. But cf. id. at 68, 106 S. Ct.
at 2775-76 ("Because both minority
and majority voters often select
members of their own race as their
preferred representatives, it will
frequently be the case that a black
candidate is the choice of blacks,
. while a white candidate is the choice
of whites.").
Thus, while election and support of black candidates is
important in the totality of circumstances, it is not
determinative of a finding of racial cohesion or racially
polarized voting.
While blacks support black candidates to a large degree,
and whites white candidates, the Court finds enough
crossover voting exists to prevent a finding of significant
racial polarization, and while the evidence demonstrates the
relatively small number of black persons holding office, this
finding does not trigger the additional more important
55a
finding that blacks in the first district have been unable to
elect the candidates of their choice. The political reality in
South Louisiana is that the support of the black community
is a very important factor in the success of any political
candidate. It is rare that one may succeed without it.68
Conclusions of Law
This Court has subject matter jurisdiction of this matter
under 28 .U.S.C. §§ 1331 and 1432 and 42 U.S.C. §
1973C.
There are two issues of law:
1. Whether the multimember district
system in Louisiana’s First Supreme
Court District violates Section 2(a)
of the Voting Rights Act; and
2. Whether the multimember district
system in Louisiana’s First Supreme
Court District violates the Fourteenth
and Fifteenth Amendments to the
United States Constitution and 42
U.S.C. § 1983.
68 In addition to the facts recited heretofore, the Court in reading its
conclusions herein has received and taken into consideration the 109
stipulations of fact set forth in paragraph 7 of the Pre-Trial Order of
March 29, 1989.
56a
The Court will address each issue in turn.
L The Voting Rights Act
With respect to the first issue, the Fifth Circuit has
previously determined in this litigation that section 2
generally applies to judicial elections.69 However, the
parties raise a threshold legal issue whether both subsections
of section 2 apply to judicial elections or whether only
subsection (a) is applicable. If only subsection (a) applies,
defendants suggest only intentional acts of discrimination are
prohibited. If both subsections apply, plaintiffs may prevail
by demonstrating that under a totality of the circumstances,
a challenged election law or procedure has the effect of
denying or abridging the right to vote on the basis of
race."70 In other words, under subsection (b), a "results
test" may be used to evaluate the challenged election law or
procedure.
69 Chisom v, Edwards. 839 F.2d 1056 (5th Cir. 1988), cert, denied
109 S.Ct. 390 (1988).
70 839 F.2d at 1059.
57a
Because of the Fifth Circuit’s discussion (in its order of
remand herein) of both subsections of section 2 and its
reliance upon legislative history concerning subsection (b),
it appears as a directive for this Court to apply both
subsections of section 2 to this case.
However, defendants contend the resolution of this case
is not governed by section 2(b) of the Act. Defendants
assert that section 2(b) of the Voting Rights Act enshrines
the "one man, one vote" principle as the touchstone test,
which should not 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), a ffd 409 U.S. 1095, 93 S.
Ct. 904, 34 L.Ed.2d 679 (1973).
The Wells litigation pre-dates the 1982 amendments to
the Voting Act instituting the "results test." However,
Wells has never been overruled and the law of the case is
silent on Wells’ viability.
58a
If this Court’s assumption as noted above is incorrect,
and Wells applies as the governing standard, this Court
would conclude without hesitation that plaintiffs have failed
to prove discriminatory intent with respect to the scheme
here at issue, and that therefore plaintiffs’ Voting Rights Act
claims must be dismissed. However, since the tenor of the
Fifth Circuit’s opinion in this case suggests otherwise, this
Court is bound by that opinion as the law of the case.
Accordingly, this Court has evaluated the facts before
it under the rules of Gingles and its progeny.71 As stated by
the Fifth Circuit:
It has been widely recognized that
"multimember district and at-large
voting schemes may operate to
minimize or cancel out the voting
strength of racial minorities in the
voting population." [Citing Gingles]
Such schemes are not, however, per
se violations of section 2. [citation
omitted]
71 See Thornburg v. Gingles. 478 U.S. 30, 106 S. Ct. 2752, 92
L.Ed. 2525 (1986) and cases cited in this Court’s Opinion of July 28,
1988, Rec. Doc. no. 52, 690 F. Supp. 1524 (E.D. La. 1988).
59a
Westwego Citizens for Better Government v. City of
Westwego. 872 F.2d 1201 (5th Cir. 1989). This Court
must undertake "a searching practical evaluation of past and
present reality," with a "functional view of the political
process." Ld. at 1204 (quoting Ginglesl.
Addressing the specific evidence necessary under
section 2(b) to prove a section 2(a) violation, the Gingles
plurality set forth three matters a minority group must
prove: (1) that it is sufficiently large and geographically
compact to' constitute a majority in a single-member district;
(2) that it is politically cohesive; and (3) that the white
majority votes sufficiently in a bloc to enable it to usually
defeat the minority’s preferred candidate because the
minority’s submergence in a white multi-member district
impedes the minority’s ability to elect its chosen
representatives. See 478 U.S. at 50-51, 106 S. Ct. at 2766-
67, 92 L.Ed.2d 46-47; Campos v. City of Baytown. 840
F.2d 1240, 1243 (5th Cir. 1988), cert, denied. 109 S. Ct.
60a
3213 (1989).
Other relevant but not necessary focal factors72 are
enumerated in the Senate Judiciary Committee majority
report in respect of section 273 and include: the state’s
history of voting discrimination; the extent of racially
polarized voting; the state’s use of such voting practices as
unusually large election districts, majority vote requirements
and anti-single shot procedures;74 access to candidate slating
processes; the extent to which limited education and
employment opportunities and health benefits hinder
minority participation; racial appeals in political campaigns
and the extent to which minority members have been elected
to public office; elected officials’ responsiveness to minority
needs; and the viability of voting qualifications.
72 Gingles. 106 S. Ct. at 2765-66.
73 This report accompanied the bill amending section 2 of the Voting
Rights Act in June 29, 1982. See S. Rep. No. 97-417, 97th Cong. 2d
Sess. 28 (1982), USCCAN 1982, pp. 206-07, cited in Thornburg v.
Gingles. supra, 106 S. Ct. at 2759-60.
74 Bullet (single-shot) voting is denied in Gingles. 106 S. Ct. at 2760
n. 5.
61a
In evaluating the statistics necessary for plaintiffs to
prove racial bloc voting, this Court is bound by recent Fifth
Circuit authority to consider statistical evidence from judicial
elections and from exogenous elections.75 However, in the
instant case, there is no sparsity of data pertaining to judicial
elections in which black candidates have run, and while the
Court gives due consideration to data from exogenous
elections, the Court concludes data from judicial elections
should receive greater weight. Nevertheless, as previously
indicated, the Court is of the opinion plaintiffs have failed to
prove by a preponderance of the evidence, the existence of
racial'bloc.voting as a matter of law.76
This conclusion is critical because multi-member
districts and at large election schemes, are not per se
violative of minority voters’ rights.77 Rather, plaintiffs must
75 See Westwego. 872 F,2d at 1206; Citizens for a Better Gretna v.
City of Gretna. 834 F.2d 496 (5th Cir. 1987).
76 To hold otherwise, the Court would be required to ignore the
expert reports of Drs. Weber and Miller which the Court declines to do.
77 Thornburg v. Gingles. supra. 106 S. Ct. at 2752.
62a
prove that the use of a multi-member electoral structure
operates to minimize or cancel out their ability to elect their
preferred candidates. This, the plaintiffs have not done. As
detailed in the Court’s findings of fact, the statistical
evidence regarding judicial and non-judicial elections shows
that the blacks have had full access to the political process
and routinely elect their preferred candidates, often times
joining forces with a significant portion of the white
electorate, and creating significant crossover voting.
Plaintiffs would have the Court create an amoeba
shaped, wholly-metropolitan district unique among the
Supreme Court districts in the state for the sole purpose of
guaranteeing a black justice. In concluding, the Court
stresses that the plaintiffs’ goal appears wholly contrary to
the express proviso in section 2 that "nothing in this section
establishes a right to have [blacks] elected in numbers equal
to their proportion in population."
63a
The Fourteenth and Fifteenth Amendments
With respect to the second issue, "multimember districts
are not per se unconstitutional, nor are they necessarily
unconstitutional when used in combination with single
member districts in other parts of the State." White v.
Regester, 412 U.S. 755, 93 S. Ct. 2332, 2339 (1973).
Proof of racially discriminatory intent or purpose is required
to show a violation under either the fourteenth or fifteenth
amendment. Kirksev v. City of Jackson. Miss.. 663 F.2d
659 (5th Cir. 1981). Washington v. Davis. 426 U.S. 229,
239-241, 96 S. Ct. 2040 (1976). Plaintiffs have failed to
prove as a matter of law that the present system by which
Louisiana Supreme Court Justices are elected was instituted
with specific intent to dilute, minimize or cancel the voting
strength of plaintiffs. It is clear that an invidious
discriminatory purpose was not a factor at all in the
legislative decision to provide a multi-member district for
the Louisiana First Supreme Court District. Such being the
64a
case, plaintiffs have failed to prove any constitutional
violation from the operation of the present voting scheme.
For the foregoing reasons, the Clerk of Court is
directed to enter judgment in favor of defendants dismissing
plaintiffs claims.
New Orleans, Louisiana, this 13th day of September,
1989.
S/___________
UNITED STATES DISTRICT JUDGE
[The text of the opinion is followed by an appendix of
7 statistical tables; because of the difficulty in reproducing
the tables and at the suggestion of the Clerk of the Court,
fifteen copies of the tables have been lodged with the Clerk
for the Court’s use.]
65a
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 90-8014
LEAGUE OF UNITED LATIN AMERICAN
CITIZENS COUNCIL NO. 4434,
Plaintiffs-Appellees,
and
JESSE OLIVER, ET AL.,
Intervening
Plaintiffs-Appellees,
versus
WILLIAM P. CLEMENTS, ETC., ET AL.,
Defendants,
JIM MATTOX, ET AL.,
Defendants-Appellees,
Appellants,
versus
JUDGE F. HAROLD ENTZ, ETC.,
JUDGE SHAROLYN WOOD, ETC.
and GEORGE S. BAYOUD, JR., ETC.,
Defendants-Appellants,
and
TOM RICKHOFF, SUSAN D. REED, JOHN
J. SPECIA, JR., SID L. HARLE, SHARON
MACRAE and MICHAEL P. PEDAN, Bexar
County, Texas State District Judges,
Appellants.
■ Appeal From the United States District Court
for the Western District of Texas
(September 28, 1990)
66a
Before CLARK, Chief Judge,
GEE, PO LITZ, KING, JOHNSON, JOLLY,
HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE,
WIENER, AND BARKSDALE, Circuit Judges.* GEE,
Circuit Judge:
Today we must decide whether Congress, by amending
Section 2 of the Voting Rights Act in 1982 to add a "results"
test for dilution of minority voting strength, meant to subject
the selection of state judges to the same test as that for
representative political offices by incorporating language
from the Supreme Court decision in White v. Regester.1 For
reasons to be given - and for the cardinal reason that judges
need not be elected at all — we conclude that it did not.
'Judges Williams and Garwood took no part in the Court’s
deliberations or decision of this appeal. When this case was orally
argued before and considered by the court, Judge Reavley was in regular
active service. He participated in both the oral argument and the en banc
conference.
In United States v. American-Foreign Steamship Co., 363 U.S.
685, 80 S.Ct. 1336, 4 L.Ed.2d 1491 (1960), the Supreme Court,
interpreting 28 U.S.C. § 371(b), decided which senior judges are eligible
to participate in an en banc court. Compare United States v. Cocke, 399
F.2d 433, 435 n.4 (5th Cir. 1968) (en banc). As Judge Reavley reads
the American-Foreign Steamship Co, opinion, he considers himself
ineligible now to participate in the decision of this case, and he has not
therefore done so.
412 U.S. 755 (1973)
67a
In summary, these are that Congress was at great pains
to phrase the new Section 2 in such language as to make
clear that its results test applies to voting in elections of
representatives only; that as of the amendment’s time judicial
offices had never been viewed by any court as representative
ones; that characterizing the functions of the judicial office
as representative ones is factually false — public opinion
being irrelevant to the judge’s role, and the judge’s task
being, as often as not, to disregard or even to defy that
opinion, rather than to represent or carry it out; that,
because of the highly intrusive nature of federal regulation
of the means by which states select their own officials,
legislation doing so should not be pushed beyond its clear
language; and that, in view of these considerations, we
should place such a construction on the 1982 enactment
reluctantly and only if Congress has clearly mandated such
a singular result.
68a
We have carefully weighed the text and provenance of
the statutory language against the opposing factors urged
upon us as interpretive guides. Having done so, we
conclude that the language of the 1982 amendment is clear
and that it extends the Congressional non-Constitutional
"results" test for vote dilution claims no further than the
legislative and executive branches, leaving the underlying,
Constitutional "intent" test in place as to all three.
Especially telling, we conclude, is the circumstance that in
borrowing language from the Court’s White opinion
Congress focused upon its reference to electing "legislators,"
broadening it so far, but only so far, as to electing
"representatives," a term inclusive of elective members of
the executive branch as well as of the legislature but not -
- as, say, "state officials" would have been — of members
of the judiciary. That Congress did exactly as we have
described is as undeniable as it is inexplicable on any basis
other than that of a legislative purpose to include all elected
69a
legislative and executive state officials but to exclude elected
judges.
Finally, and bearing in mind the well-settled principle
of statutory construction that the enacting Legislator is
presumed to have been aware of the judicial construction of
existing law,2 we note that, as of the time of the addition of
Section 2(b) and of the explicit results test to the Voting
Rights Act, every federal court which had considered the
question had concluded that state judges were not
"representatives" and did not fall within the definition of
that term. Had Congress, then, meant to exclude votes in
judicial elections from the ambit of its new results test, it
could scarcely have done so more plainly than by adopting
the term "representative" to describe that ambit.
2 See, e.g., Shapiro v. United States, 335 U.S. 1, 16 (1948); United
States v. PATCO, 653 F.2d 1134, 1138 (7th Cir.), cert, denied, 454
U.S. 1.083 (1981).
70a
Facts and Procedural History
The underlying facts of this appeal are carefully and
correctly s.et out in the panel opinion, 902 F.2d 293 (5th
Cir. 1990); we recapitulate them here no further than is
necessary to an understanding of what we write today.
Plaintiffs attacked the Texas laws providing for
county wide, at-large election of judges of the trial court of
general jurisdiction, asserting that the imposition of a single
member system was necessary to prevent dilution of black
and Hispanic voting strength. In a bench trial, the federal
court rejected their constitutional arguments grounded in the
Fourteenth and Fifteenth Amendments, finding a failure to
prove the requisite discriminatory intent for relief under
those provisions. The court determined, however, that the
Texas law produced an unintended dilution of minority
voting strength, a circumstance sufficient to call for relief
under the Voting Rights Act, as amended in 1982 to
incorporate a "results" test dispensing with the necessity of
71a
proof of discriminatory intent. In consequence, and after
pausing to allow for possible remedial action by the state,
the court enjoined further use of the at-large system,
confected and imposed a system of single-member elections,
and directed that these be held last Spring.
On appeal, we stayed the court’s order, expedited the
appeal, held a panel hearing on April 30, and handed down
an opinion on May 11. Four days later, pursuant to a
majority vote of active judges, we ordered rehearing of the
appeal en banc; and we now render our opinion.
Analysis
The Panel Opinion
At the time of its decision, our panel was constrained
by an earlier decision of the Circuit holding that Section 2
of the Act applied to elections held to fill positions on the
Louisiana Supreme Court, a seven-member body.3 Chisom
v. Edwards, 839 F.2d 1056 (5th Cir. 1988). Constraint was
3 It is the settled law of our Circuit that one panel of the Court does
not overrule another. Ryals v. Estelle, 661 F.2d 904 (5th Cir. 1981).
72a
superfluous, however; for the panel embraced and agreed
with the holding and reasoning of Chisom applying the Act
to judicial elections. It went on, however, to conclude that
although in its view judges were indeed "representatives of
the people," and although as their representatives the judges’
elections were controlled by Section 2(b) of the Act, the
elections of trial judges were not subject to voter-strength
dilution concerns because their offices are single-member
ones; and there is no such thing as a "share" of a single
member office. LULAC v. Clements, 902 F.2d 293, 305
(5th Cir. 1990). See Butts v. City of New York, 779 F.2d
141 (2d Cir. 1985), cert, denied. 478 U.S. 1021 (1986)
(offices of mayor, council president, comptroller are single-
member ones) and United States v. Dallas County, Ala.,
850 F.2d 1433 (11th Cir. 1988) (county probate judge). A
vigorous dissent by Judge Johnson, author of the panel
opinion in Chisom. disputed the panel majority’s
characterization of judges from multi-judge districts as
73a
holders of single-member offices. We need not resolve this
disagreement within the panel, however, as we do not reach
the issue.
Statutory Background
Originally enacted in 1965 as an anti-test, anti-device
provision to relieve blacks of state-law strictures imposed
upon their Fifteenth Amendment voting rights, Section 2 of
the Voting Rights Act was construed by the Supreme Court
in Mobile v. Bolden, 446 U.S. 55 (1980), as adding nothing
to the Fourteenth and Fifteenth Amendment claims there
made and as requiring, for its enforcement, proof of racially-
discriminatory intent. At the time of Bolden. Section 2 read:
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,
or in contravention of the guarantees set forth in
section 1973b(f)(2) of this title.
Congress reacted to Bolden by amending Section 2 to
add to the statute a limited "results" test, to be applied and
74a
administered "as provided in subsection (b) of this section.
As amended, Section 2 was cast in two subsections:
(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 in
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 nomination or election
in the State or political subdivision 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 opportunity than other members of the
electorate to participate in the political
process and to elect representatives of their
choice. The extent to which members of a
protected class have been elected to office
in the State or political subdivision is one
circumstance 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.
75a
Earlier, in the course of deciding White, a 1973 voting
rights case invoking constitutional grounds, the Court had
described the required standard of proof in felicitous terms:
The plaintiffs’ burden is to produce evidence to
support findings that the political processes leading
to nomination and election were not equally open
to participation by the group in question — 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 (emphasis added). Casting about for
appropriate language in which to couch its new subsection,
and having inserted the reference to results in old Section 2,
Congress settled upon the italicized portion of Justice
White’s opinion quoted above, adopting it with only one
significant alteration.
New subsection (b), then, is patterned on the White
court’s language and provides with great specificity how
violations of the newly incorporated results test must be
established: a violation is shown on a demonstration, by the
totality of the circumstances, that state (or political
76a
subdivision) nomination and election processes for
representatives of the people’s choice are not as open to
minority voters as to others. The precise language of the
section is significant; a violation is shown, it declares, if it
is established that members of the protected classes
have less opportunity than other members of the
electorate to participate in the political process and
to elect representatives of their choice.4
Both the broad and general opportunity to participate in
the political process and the specific one to elect
representatives are thus treated in the new section.5 As for
the former, protecting it appears to involve all of the primal
anti-test, anti-device concerns and prohibitions of original
Section 2; and its provisions may well extend to all elections
4 As we note in text, the section goes on to specify that election
success of class members is a circumstance to be considered and to
disavow specifically any intent to mandate proportionate representation
by race.
5 Not all aspects of that process pertain to elections, e.g., the
celebrated New England town meeting.
77a
whatever, as did they.6 These broader considerations center
on the voter and on his freedom to engage fully and freely
in the political process, untrammeled by such devices as
literacy tests and poll-taxes. Where judges are selected by
means of the ballot, these safeguards may apply as in any
other election, a matter not presented for decision today.
The second consideration — opportunity to elect
representatives of one’s choice — is also couched in the
language borrowed from White v. Regester, 412 U.S. 755,
766 (1973); and, as we have noted, the Congress was at
some pains to adapt and broaden the Court’s phrases so as
to convey its precise meaning. Before pursuing this aspect
of our inquiry further, however, we turn aside to consider
briefly the nature of the judicial office and two other closely
6 That scope is not at issue today, the trial court having found an
absence of discriminatory intent; and we do not decide it. We point out,
however, that there can be no doubt whatever that the provisions of the
Fourteenth and Fifteenth Amendments, enforceable by means of Section
1983 actions, apply to judicial elections to forbid intentional
discrimination in any aspect of them. City of Mobile v. Bolden, 446
U.S. 55 (1980); Voter Information Project v. City of Baton Rouge, 612
F.2d 208 (5th Cir. 1980).
78a
related topics: judicial selection and the state of authority
on judges’ status as representatives.
The Judicial Office
Senators and members of the House of Representatives
hold clearly political offices. Today, both are directly
elected by the people; and it is their function as
representatives to synthesize the opinions of their
constituents and reflect them in the debate and deliberation
of public issues.7 The executive branch of the government,
headed by our highest officer elected at large in the nation,
7 James Madison, discussing the unique relationship of the
representative to his constitutents, for example, referred to a
relationship of "intimate sympathy" between the elected and
his electors, and argued that a legislator should fee an
"immediate dependence" upon the will of his constituents.
Frequent elections, according to Madison, are the only way
to ensure this sort of relationship. Only by requiring
legislators to return periodically to their constituents to seek
their ongoing support and input, can the communication
between the voters and their representatives that is essential
to the maintenance of democratic government take place.
Congress is a "popular” institution; it is, therefore inherently
political.
Hickok, Judicial Selection: The Political Roots of Advice and Consent
in Judicial Selection: Merit, Ideology, and Politics 4 (National Legal
Center for the Public Interest 1990).
79a
is also expected to bring the views and opinions which he
offered the electorate in seeking the Presidency to bear on
the job of running the federal machinery.
By contrast, the judiciary serves no representative
function whatever: the judge represents no one.8 As
Professor Eugene Hickok has recently observed, in terms
upon which we cannot improve:
The judiciary 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. The purpose of
the judiciary is not to reflect public opinion in its
deliberations or to satisfy public opinion with its
decisions. Rather, it is to ensure that the ordinary
laws do not run contrary to the more fundamental
law of the Constitution, to resolve disputes and
controversies surrounding the law, and to resolve
disputes among contesting parties over the meaning
That this is the case is strongly implied in the Constitution, which
provides for an appointive federal judiciary and was adopted by thirteen
states, none of which had an elective one. Yet the Framers believed they
were confecting a federal republic, and Article 4, Section 4, of the
Constitution guarantees "to every State in this Union a Republican Form
of Government. . . . " But if judges hold representative offices, or
represent any constituency, appointing them is scarcely consistent with
a republican system, defined by the Third Edition of Webster’s
Unabridged as ”[A] government in which supreme power resides in a
body of citizens entitled to vote and is exercised by elected officers and
representatives
80a
of the law and the Constitution. If a member of
congress serves to make the law and a president to
enforce it, the judge serves to understand it and
interpret it. In this process, it is quite possible for
a judge to render a decision which is directly at
odds with the majority sentiment of the citizens at
any particular time. A judge might find, for
example, a very popular law to be unconstitutional.
Indeed, it can be argued that the quality most
needed in a judge is the ability to withstand the
pressures of public opinion in order to ensure the
primacy of the rule of law over the fluctuating
politics of the hour.
Hickok, op. tit. supra n.7, at 5.
Thus the scholar, and with one voice the case authority
of the time agreed. In 1982, as of the time of Congress’s
adoption of the Court’s language from White, at least fifteen
published opinions by federal courts — opinions which we
list in the margin — had held or observed that the judicial
office is not a representative one, most often in the context
of deciding whether the one-man, one-vote rubric applied to
judicial elections.9 Not one had held the contrary.
9 Sagan v. Commonwealth of Pennsylvania, 542 F. Supp. 880
(W.D. Pa. 1982), appeal dismissed. 714 F.2d 124 (3rd Cir. 1983)
(cross filing permitted by candidates for judicial office, prohibited
for legislative and executive candidates)
81a
Concerned Citizens of Southern Ohio, Inc. v. Pine Creek
Conservancy Dist., 473 F. Supp. 334 (S.D. Ohio 1977)
The Ripon Society, Inc. v. National Republican Party, 525 F.2d
567 (D.C. D.C. 1975), cert, denied. 424 U.S. 933, 47 L.Ed.2d
341 (1976)
Fahey v. Darigan, 405 F. Supp. 1386 (D.C.R.I. 1975)
Gilday v. Board of Elections of Hamilton County, Ohio, 472 F.2d
214 (6th Cir. 1972)
Wells v. Edwards, 347 F. Supp. 453 (M.D. La. 1972), aff d mem..
409 U.S. 1095, 34 L.Ed.2d 679 (1973)
Buchanan v. Gilligan, 349 F. Supp. 569 (N.D. Ohio 1972)
Holshouser v. Scott, 335 F. Supp. 928 (M.D.N.C. 1971), aff d
mem.. 409 U.S. 807, 34 L.Ed.2d 68 (1972)
Sullivan v. Alabama State Bar, 295 F. Supp. 1216 (M.D. Ala.),
aff d per curiam. 394 U.S. 812, 22 L.Ed.2d 749 (1969) (involving
Board of Commissioners of Alabama State Bar)
Irish v. Democratic-Farmer-Labor Party of Minnesota, 287 F.
Supp. 794 (D.C. Minn.), affd, 399 F.2d 119 (8th Cir. 1968)
Buchanan v. Rhodes, 249 F. Supp. 860 (N.D. Ohio 1966), appeal
dismissed. 385 U.S. 3, 17 L.Ed.2d 3 (1966), and vacated. 400
F.2d 882 (6th Cir. 1968), cert, denied. 393 U.S. 839, 21 L.Ed.2d
110 (1968)
N.Y. State Assn, of Trial Lawyers v. Rockefeller, 267 F. Supp.
148 (S.D.N.Y. 1967)
Kad v. Rockefeller, 275 F. Supp. 937 (E.D.N.Y. 1967)
Romiti v. Kemer, 256 F. Supp. 35 (N.D. 111. 1966)
Stokes v. Fortson, 234 F. Supp. 575 (N.D. Ga. 1964)
82a
Typical of these is the opinion in Wells v. Edwards, a
decision by a three-judge district court from our own circuit
which was affirmed on appeal by the Supreme Court.10
There, after reviewing various authorities, the district court
expressed the entire rationale of its view as follows:
"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.
"The State judiciary, unlike the legislature,
is not the organ responsible for achieving
representative government."
Since 1982 a few courts have held that the use of the term
"representatives" in Section 2 does not necessarily exclude judges. See
Southern Christian Leadership Conference of Alabama v. Siegelman, 714
F. Supp. 511 (M.D. Ala. 1989); Clark v. Edwards, 725 F. Supp. 285
(M.D. La. 1988); Mallory v. Eynch, 839 F.2d 275 (6th Cir. 1988);
Martin v. Allain, 658 F. Supp. 1183 (S.D. Miss. 1987). (All
recognizing that the "one-man, one-vote" principle does not apply to
judicial elections and that, unlike legislators, judges do not "represent"
those who elect them, but, nevertheless, refusing to apply its established
meaning to Congress’ use of the term "representatives" in Section 2 of
the Voting Rights Act).
10 347 F. Supp. 453 (M.D. La. 1972), afTd mem., 409 U.S. 1095
(1973) (Justice White, joined by Justices Douglas and Marshall,
dissenting).
83a
347 F. Supp., at 455-56 (quoting from Buchanan v. Rhodes,
249 F. Supp. 860 and New York State Association of Trial
Lawyers v. Rockefeller, 267 F. Supp. 148). It 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.
If there were doubt, however, it would be laid to rest by the
terms of the dissent, which attacks the district court opinion
in stern, egalitarian terms for having, like other opinions
cited by it, held "that the one-person, one-vote principle
does not apply to the judiciary." 409 U.S. 1095, 1096 n.2.
Nor is it likely, we think, that the Supreme Court would
hold, as it necessarily did in affirming Wells v. Edwards,
that although for purposes of the Equal Protection Clause of
the Fourteenth Amendment judges "do not represent people,"
all the same, for purposes of Section 2(b) of the Voting
Rights Act, judges are "representatives of [the people’s]
84a
choice." Both must be true, or neither one.11
Wells is not only instructive as to the meaning of
"representatives" and thus as to the scope of Section 2, it is
dispositive of the precise issue of the scope of Section 2 ’s
applicability raised in this case. The Wells holding — that
the one-person, one-vote rule does not apply to the judiciary
- leads inexorably to the conclusion that judicial elections
cannot be attacked along lines that their processes result in
unintentional dilution of the voting strength of minority
members. 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
11 It is interesting to note that the dissent from the panel opinion, in
the very course of complaining of the majority’s refusal to apply Section
2 to trial judges, candidly recognizes that judges, unlike legislative and
executive officers, "represent11 no one:
When weighing a state’s claim that it has a compelling interest
in retaining the existing at-large system, courts should keep
in mind the common sense notion that the role of judges
differs from that of legislative and executive officials. Since
it is not the role of judges to "represent" their constituents an
examination of the "responsiveness" of the elected official to
minority concerns is clearly irrelevant.
902 F.2d at 317 n.17.
85a
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
nonexistent wrong complained of here.
The notion of individual vote dilution, first developed
by the Supreme Court in Reynolds v. Sims, 377 U.S. 533
(1964), was the foundation for the concept of minority vote
dilution to be later elaborated in Whitcomb v. Chavis, 403
U.S. 124 (1971)12, White v. Regester, supra, 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 individual voters. With that guarantee in mind,
12 In Whitcomb v. Chavis the Supreme Court directly considered a
racial dilution challenge and rejected the claim that the Indiana legislative
reapportionment plan operated to minimize or cancel out minority voting
strength. The Court held that the mere fact that ghetto residents were not
proportionately represented did not prove a consitutional violation unless
they were denied equal access to the political process.
86a
remedial schemes to combat minority vote dilution were
devised on a case by case basis.
Almost twenty years ago, we articulated the conceptual
link between individual vote dilution and minority vote
dilution, making clear the latter’s dependence on the former:
Inherent in the concept of fair representation are
two propositions: first, that in apportionment
schemes, one man’s vote should equal another
man’s vote as nearly as practicable; and second,
that assuming substantial equality, the scheme must
not operate to minimize or cancel out the voting
strength of racial elements of the voting population.
Zimmer. 485 F.2d at 1303 (emphasis added).
For it is the assumption of substantial equality (achieved
through the guarantee of one-person, one-vote) that underlies
the concept of minority vote dilution. This assumption, the
Court held in Wells, does not obtain in judicial elections;
and without that assumption there exists no yardstick by
which to measure either the "correct" magnitude of minority
voting strength or the degree of minority vote dilution.
Thus, on a conceptual level, and to paraphrase Justice
87a
Harlan, we are asked to undertake the ineffable task of
equalizing that which we cannot measure. Whitcomb. 403
U.S. at 169 (Harlan, J., separate opinion).
We are therefore unable to take the crucial step from
individual vote dilution to minority vote dilution in this case,
not only because the holding in Wells forbids us to assume
the existence of "substantial equality," but because it
compels us to recognize that no such equality need exist in
the arena of judicial elections. The bridge between the two
concepts, fashioned by the Court in Reynolds v. Sims and
applied there to state legislatures, is of limited length and,
as the Court made clear by affirming Wells v. Edwards.
does not extend to the judiciary.
Finally, as the district court stated in Wells:
The primary purpose of one-man, one-vote
apportionment is to make sure that each official
member of an elected body speaks for
approximately the same number of constituents.
Wells. 347 F. Supp. at 455.
88a
We reiterate that judges do not represent people and, thus,
have no constituents. Judges speak the voice of the law. In
doing so they speak for and to the entire community, never
for segments of it and still less for particular individuals.
To describe the judge’s office merely as "not a
representative one" is a gross understatement; in truth, it is
rather the precise antithesis of such an office. Just insofar
as a judge does represent anyone, he is not a judge but a
partisan.
New Subsection 2(bl
So the land lay when Congress enacted Section 2(b) in
1982, choosing to replace the term "legislator" in the White
phraseology with the term "representative" — a term which
is employed only at this spot and appears nowhere else in
the entire Voting Rights Act. By the settled canon of
construction, we must presume that Congress was aware of
the uniform construction which had been placed by the
courts on the term that it selected, a construction by which
89a
the judicial office was not deemed a "representative" one.
Goodyear Atomic Corp. v. Miller, 486 U.S. 174 (1988);
Sutton v. United States, 819 F.2d 1289 (5th Cir. 1987).
Against this background, then, the Congress deliberately
picked a term of art for use in amending Section 2 that up
to that time had been universally held, and which it knew
had been universally held by every federal court that had
considered it as of that date, neither to include judges nor
to comprise judicial offices. In view of these circumstances,
we find it all but impossible to avoid the conclusion that
Congress intended to apply its newly imposed results test to
elections for representative, political offices but not to vote
dilution claims in judicial contests, leaving the latter to be
regulated and controlled by state law, by the Constitution, or
by other provisions of the Voting Rights Act.13 Given the
13 Indeed, as the panel opinion correctly notes, many states of the
Union over the course of their history have maintained an appointive
judiciary, and some do so today. 902 F.2d, at 296. Given the fact, also
noted there, that none of the original thirteen states elected its judiciary,
an appointive system must be viewed as consistent with the "Republican
Form of Government" guaranteed the States by Article 4, Section 4, of
the Constitution.
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mutual exclusiveness of the two terms, to suggest that
Congress chose "representatives" with the intent of including
judges is roughly on a par with suggesting that the term
night may, in a given circumstance, properly be read to
include day.
We are further persuaded by the knowledge that in
amending Section 2 Congress was well aware of the genesis
of the concept of minority vote dilution. The legislative
history makes clear that Congress knew that "[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
Iii view of this, and while it is certainly possible to imagine
Congress’s taking the position that, while states need not elect judges, if
they do so they must do so on exactly the same terms as they elect
representatives, the view which it adopted seems at least equally cogent:
that since the office of the judge is not to represent the popular will, and
since judges are not expected to initiate significant departures in law or
policy, the states need not be subjected in their selection or election to so
severe and intrusive a provision as one applying a "results" test to claims
of minority vote dilution.
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Cong. & Admin. News at 196. Given its awareness of the
Wells v. Edwards holding — that the one-person, one vote
rule does not apply to the judiciary — we must conclude that
Congress, aware of the combined effect of Reynolds and
Wells, limited the scope of amended Section 2 so as to rule
out the judicial branch, an area within which the issue of the
viability of minority vote dilution claims had been well
settled.
Countervailing Arguments
Thus we find on one side of the argument whether
Section 2(b)’s results test for elections applies to judicial
ones the Congress’s carefully chosen term of art —
"representatives" — deliberately selected by Congress and
placed in the section itself, with a settled legal meaning
excluding judges. On the other side are ranged contentions
of a more attenuated and derivative nature, which we now
consider briefly.
92a
First we are told that the definition of "voting,"
included in the original act as Section 14(c)(1) and now
codified as 42 U.S.C. 1973(l)(c)(l), refers to "candidates
for public or party office" and that, since judicial hopefuls
are included within the generality of such a reference to
candidates, the results test which applies to all others must
be applied to them as well. The specific controls the general
here, however, as in any other instance of statutory
construction; and we see little force in the claim that an
inference from a general term buried in a definitional section
far from Section 2 should control the specific and
supervening language inserted by Congress in the section
itself. Nor is there any necessary conflict between the two
provisions: as we have noted, it is only the application of
the results test portion of amended Section 2 to vote dilution
claims in judicial elections that is at issue today. Other
portions of the section may well apply to such elections, as
may the results test to claims other than those of vote
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dilution, along with the indubitably applicable Constitutional
prohibitions against any intentional act of discrimination in
any electoral aspect.
The same answer also refutes the next argument: that
because, as was held in Haith v. Martin, 618 F. Supp. 410
(E.D.N.C. 1985), aff’d mem.. 477 U.S. 901 (1986), Section
5 of the Act applies to state judicial elections, Section 2
must apply as well. As we have explained, portions of
Section 2 may well apply - except for the results test
introduced in response to the holding in Bolden to govern
vote dilution in the election of "representatives," which by
its own terms does not.
Next we are told, in yet another general argument
similar to those we have just rejected, that we must apply
the dilution results test to judicial elections because the 1982
amendments to Section 2 were intended to expand, rather
than to restrict, the section’s coverage. Doubtless they were
generally so intended; doubtless they did so; but the
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presence of a general intent to expand coverage requires
neither an expansion at all points nor the maximum
imaginable expansion at any and is not even necessarily at
odds with a specific intent to restrict coverage at one or
another of them. Section 2 was greatly expanded, expanded
to add a results test to the intent test of the Fourteenth and
Fifteenth Amendments — expanded in most respects, but not
in all.
Finally, in a scatter of birdshot contentions, counsel
point to the broad construction that the Attorney General has
historically accorded the Voting Rights Act, to the absence
in the Act’s legislative history of any explicit statement that
judicial elections are not covered, to the presence in that
history of references to statistics on minority performance in
various elections (including judicial ones), and to a single
reference to "judicial districts" in a cautionary parade of
horribles to be found in a subcommittee report hostile to the
proposed 1982 amendments. None of these seems to us to
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weigh very heavily in the scales against the specific
terminology of Section 2 itself.14 In the words of Justice
Frankfurter, writing for a unanimous court in Greenwood v.
United States, it appears to us that "this is a care for
applying the canon of construction of the wag who said,
when the legislative history is doubtful, go to the statute."
350 U.S. 366, 374 (1955).
It is, and we do so.
Conclusion
In no area should federal courts tread more cautiously
than where it is contended that Congress has imposed
14 Thus, as Justice Scalia has very recently suggested, we ”appl[y]
to the text of the statute the standard tools of legal reasoning, instead of
scouring the legislative history for some scrap that is on point ."
Begier v. United States, ___ U.S. ____, ____ ; 110 L.Ed.2d 46, 63
(1990) (concurrence in judgment).
And these small matters are indeed scounngs. The panel opinion
avers, 902 F.2d at 299, and we do not doubt, that the reference to
judicial districts is the sole reference to the judiciary in all the
legislative history of the 1982 amendments of the Act. It will be noted
that even this reference is one to judicial districts, not to judicial
candidates; and in our Circuit many officials such as sheriffs, highway
commissioners, district attorneys and clerks of court, who are
representatives" and not judges, are elected from judicial districts, e.g.,
Miss. Code Ann. (1972) 65-1-3.
96a
incremental Federal power on the States; and the nearer to
the core of traditional state authority and concern we are
asked to venture, the more warily we should tread. The
point is elegantly made by the panel opinion in this very
case:■
Few would quarrel with the assertion that Section
2(b) as interpreted has worked a fundamental
change in the Act, highly intrusive to the states.
We have insisted in other contexts that Congress
clearly state its intent to supplant traditional state
prerogatives. Judicial insistence upon clear
statement is an important interpretative tool
vindicating concern for separation of powers and
federalism. See Atascadero State Hospital v.
Scanlon, 473 U.S. 234, 105 S.Ct. 3142 (1985);
Pennhurst State School and Hospital v. Halderman,
465 U.S. 89, 104 S.Ct. 900 (1984) (Pennhurst ID.
This insistence upon an "unequivocal expression of
congressional intent," Pennhurst II. 465 U.S. at
99, 104 S.Ct. at 907, is based upon the
fundamental nature of the interests at stake. "The
‘constitutionally mandated balance of power’
between the states and the Federal Government was
adopted by the Framers to ensure the protection of
‘our fundamental liberties.’" Atascadero. 105 S.Ct.
at 3147 (quoting Garcia v. San Antonio
Metropolitan Transport Authority, 469 U.S. 528,
572, 105 S.Ct. 1005, 1028 (1985) (Powell, J.,
dissenting)).
LULAC. 902 F.2d at 301.
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It is hard to envision any area lying closer to the core
of state concerns than the process by which it selects its own
officers and functionaries. Any federal trenching here
strikes at federalism’s jugular; and such a radical federal
trenching as is contended for today should therefore demand
a very clear statement indeed. Instead, as regards the issue
in this case, our investigation reveals an all but total absence
of relevant legislative history and a statutory text that
unambiguously excludes elections of non-representative state
officers from Section 2’s highly intrusive results test. If this
was not the intended effect of Congress’s substitution of
representatives for legislators in Justice White’s language,
no other suggests itself; and we must reject any notion that
Congress went to all the trouble of selecting that language
and carefully modifying it, just so far and no further,
randomly and with nothing particular in mind.16[sicl It is
16 Both the dissent and, more obliquely, the special concurrence take
our writing to task as resting on the narrow foundation of one word. In
main, this is true; for the substitution of the term "representative" is all
but the sole clue to be found ~ in either the statutory text or the
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never proper for us to extend a statute’s force by
construction into areas where Congress has not seen fit or
has been unable to agree to go, and never less proper than
in such supremely sensitive territory as this.
Judicial offices and judicial selection processes are sui
generis in our nation’s political system; they determine the
referees in our majoritarian political game. These offices
are not "representative" ones, and their occupants are not
representatives. Indeed, the state processes for filling them
need not even be elective, as those for all representative
offices presumably must be. See U.S. Const., Art. 4, Sec.
4. In 1982, when Congress determined to expand Section
2 of the Act to incorporate a results test for vote dilution, it
legislative history — to guide the interpreter in unraveling the legislative
intent behind this enigmatic statute. Dim or no, it is the only light
available to guide our footsteps, and we have followed it as best we
could.
By contrast, our specially concurring and dissenting brethren
proceed by ignoring the sole guide available, first declaring that the only
light that shines is of no help, then proceeding in total darkness and, so
proceeding, to declare that the statute means, not what it says, but what
they think Congress should have said — pausing briefly in passing to
accuse our majority of doing what they in fact have done themselves.
99a
stopped short of imposing such a test for judicial offices on
the States by limiting it to their election of "representatives."
Should Congress seek to install such a test for judicial
elections, it must say so plainly. Instead, it has thus far
plainly said the contrary. Chisom v. Edwards, 839 F.2d
1056 (5th Cir. 1988) is overruled.
REVERSED.
[The opinions of Chief Judge Clark and Judge Higginbotham
concurring in the result and the dissenting opinion of Judge
Johnson have been omitted from this Appendix; they can be
found at 914 F.2d 620.]
I