Chisom v. Roemer Brief for Petitioners
Public Court Documents
January 1, 1991
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Brief Collection, LDF Court Filings. Chisom v. Roemer Brief for Petitioners, 1991. c50f2274-ad9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/2a571260-3305-41fb-8e4c-50a682c82620/chisom-v-roemer-brief-for-petitioners. Accessed April 22, 2025.
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No. 90-757 N at A / ^ l
I n T h e
Supreme Court of ttyz ®mteb states?
O c t o b e r T e r m , 1990
Ronald Chisom, et al.,
v.
Charles E. Roemer, et a l ,
Petitioners,
Respondents.
On W rit of Certiorari to the United States
Court of Appeals for the Fifth Circuit
BRIEF FOR PETITIONERS
William P. Quigley
901 Covention Center Blvd.
Fulton Place, Suite 119
New Orleans, LA 70130
(504) 524-0016
Roy Rodney, Jr.
McGlinchey, Stafford,
Mintz, Cellini, Lang
643 Magazine Street
New Orleans, LA 70130
(504) 586-1200
Pamela S. Karlan
University of Virginia
School of Law
Charlottesville, VA 22901
(804) 92^-7810
*1
Julius LeVonne Chambers
*Charles Stephen Ralston
Dayna L. Cunningham
Sherrilyn A. Ifill
99 Hudson St., 16th Floor
New York, N.Y. 10013
(212) 219-1900
Ronald L. Wilson
310 Richards Building
837 Gravier Street
New Orleans, LA 70112
(504) 525-4361
C. Lani Guinier
University of Pennsylvania
School of Law
3400 Chestnut Street
Philadelphia, PA 19104
(215) 898-7032
*Counsel of Record
Attorneys for Petitioners
PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203
1
Q u e s t io n P r e s e n t e d
Does section 2 of the Voting Rights Act of 1965 as
amended, 42 U.S.C. § 1973, cover elections for judicial
office?
11
P a r t ie s
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, Plaintff-Intervenor;
Charles E. Roemer, in his capacity as governor of the
State of Louisiana, W. Fox McKeithen, in his capacity as
Secretary of State 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.,
Defendant-Intervenors.
Ill
T a b l e o f C o n t e n t s
Page:
Q u e s t i o n P r e s e n t e d
P a r t ie s ..........................................
T a b l e o f A u t h o r it ie s . . .
O p in io n s B e l o w ........................................................... i
J u r is d i c t io n .................................................................... 2 3
S t a t u t o r y P r o v is io n s In v o l v e d ..................... 2
S t a t e m e n t o f t h e C a s e .......................................... 4
1. The Structure o f the Louisiana Supreme
Court .................... 4
2. The Dilution o f African American Voting
Strength under the Current System o f
Electing Supreme Court Justices from the
First Supreme Court D is tr ic t........................ 8
3. The Course o f the Proceedings Below . . 22
S u m m a r y o f t h e A r g u m e n t ........................... 24
A r g u m e n t ....................................................................... 27
I. The Plain Language and Structure of
the Voting Rights Act Compels the
Conclusion that Section 2 Applies to
Judicial Elections ................................. 27
A. The Plain Language of the Act . . 27
B. The Relationship Between Section 2
and Section 5 29
vv
Page:
II. The Legislative History of the 1965
Act and the 1982 Amendments
Confirms that Section 2 Applies to
Judicial Elections ................................. 32
A. Congress’ Intention in 1965 . . . . 33
B. Congress’ Understanding During the
1970 and 1975 E xtensions............ 36
C. The 1982 Extension and Amendment
of the Voting Rights A c t ............... 38
III. The Inapplicability of the One-Person,
One-Vote Requirement of the Equal
Protection Clause to Judicial
Elections is Irrelevant to the Scope
of Section 2 . . . . .............................. .. . 43
A. The Equal Protection Clause Does
Govern Judicial Elections . . . . . 44
B. The Theory of Vote Dilution
Underlying One-Person, One-Vote Is
Entirely Distinct from the Theory of
Racial Vote Dilution Embodied in
Section 2 .................... 46
IV. The Post-Election Duties of Judges Do
Not Justify Creating an Exception to
Section 2’s Coverage of Judicial
Elections .................................... 50
A. That Judges Need Not Be Elected At
All Is Irrelevant to Whether Section
2 Covers Judicial Elections . . . . 51
B. Elected Judges Are In Fact
"Representatives" ........................... 53
C. "Representativeness" Occupies a
Critical Constitutional Position
Within the Judicial System . . . . . 56
V. Manageable Standards Exist for
Assessing Claims of Racial Vote
Dilution in Judicial Elections . . . . 62
C o n c l u s i o n ..................................................... 66
V
T a b l e o f A u t h o r it ie s
Cases: Page:
Aetna Life Insurance Co. v. Lavoie,
475 U.S. 813 (1986) ......................................................... 59
Allen v. State Board of Elections, 393 U.S. 544
(1969) .................................................................... 27, 33, 51
Anderson v. Martin, 375 U.S. 399 (1964)..................... 16
Batson v. Kentucky, 476 U.S. 79 (1986) ..................... 58
Beer v. United States, 425 U.S. 130 (1976).................. 19
Bridges v. California, 314 U.S. 252 (1 9 4 1 )............ .. . 54
Brown v. Board of School Commissioners, 706 F.2d 1103
(11th Cir.), aff’d, 464 U.S. 1005 (1983)....................... 52
Buckanaga v. Sisseton Independent School District No. 545,
804 F.2d 469 (8th Cir. 1986) .......................................... 52
Bums v. Richardson, 384 U.S. 73 (1 9 6 6 )..................... 46
Carter v. Jury Commission, 396 U.S. 320 (1970) 58, 61
Chandler v. Roudebush, 425 U.S. 840 (1976) ............ 42
Chisom v. Edwards, 839 F.2d 1056 (5th Cir.), cert, denied,
488 U.S. 955 (1988) .......................................... 10, 22, 23
Chisom v. Roemer, 917 F.2d 187 (5th Cir. 1990) 10, 24
Citizens for a Better Gretna v. City of Gretna, 636 F. Supp.
1113 (E.D. La. 1986), aff’d, 834 F.2d 496 (5th Cir. 1987),
cert, denied, 488 U.S. 1002 (1989)................................. 19
City of Rome v. United States, 446 U.S. 156 (1980)16, 32
Conley v. Gibson, 355 U.S. 41 (1957)........................... 10
Craig v. Harney, 331 U.S. 367 (1947) . . . . . . . . . . 55
Davis v. Mann, 377 U.S. 678 (1964) . . . . . . . . . . 48
Dougherty County Board of Education v. White, 439 U.S.
vi
Page:
32 (1978) .................................................................. • 28, 33
Duncan v. Louisiana, 391 U.S. 145 (1 9 6 8 ) ............... ... 18
Duren v. Missouri, 439 U.S. 357 (1978) . . . . . . . . 61
Gaffney v. Cummings, 412 U.S. 735 (1973) ............... 46
Georgia State Board of Elections v. Brooks, 111 S. Ct. 288
(1990) ............................................................ .. 22, 29, 51
Hamilton v. Alabama, 376 U.S. 650 (1964) . . . . . . . 35
Holland v. Illinois, 110 S.Ct. 803 (1990) ..................... 58
Johnson v. Virginia, 363 U.S. 61 (1963) . . . . . . . . 35
Landmark Communications v. Virginia, 435 U.S. 829
(1978) ........................................................... 54
League of United Latin American Citizens v. Midland
Independent School District, 829 F.2d 546
(5th Cir. 1 9 8 7 ) ............................. 52
Louisiana v. United States, 380 U.S. 145 (1965) . . . . 18
Lucas v. Colorado General Assembly,
377 U.S. 713 (1964) 48
LULAC v. Clements, 914 F.2d 620 (5th Cir. 1990) passim
Major v. Treen, 574 F. Supp. 325 (E.D. La. 1983) . 14,
18, 19
Martin v. Haith, 477 U.S. 901 (1986) . . . . . 22, 29, 51
vii
Maryland Comm, for Fair Representation v.Tawes, 377
U.S. 656 ( 1 9 6 4 ) .................................................................. 48
McMillan v. Escambia County, 748 F.2d 1037 (11th Cir.
1984 )...................................................................................... 11
Mobile v. Bolden, 446 U.S. 55 (1980)............ 38, 39, 42
Peters v. Kiff, 407 U.S. 493 (1972) ..................... 59, 60
Reynolds v. Sims, 376 U.S. 533 (1 9 6 4 ) ............... 46, 48
Roman v. Sincock, 377 U.S. 695 (1964) ..................... 48
Romero v. City of Pomona, 665 F. Supp. 853 (C. D. Cal.
1987), aff’d, 883 F.2d 1418 (9th Cir. 1989) ............... 64
Sailors v. Board of Education of Kent County, 387 U.S. 105
(1967) ................................................................................... 52
Salyer Land Co. v. Tulare Lake Basin Water Storage
District, 410 U.S. 719 (1 9 7 3 ) .......................................... 44
Smith v. Texas, 311 U.S. 128 (1940) ........................... 57
Sobol v. Perez, 289 F. Supp. 392 (E.D. La. 1968) . . 18
South Carolina v. Katzenbach, 383 U.S. 301 (1965) . . 28
Strauder v. West Virginia, 100 U.S. 303 (1880) . . . . 58
Taylor v. Louisiana, 419 U.S. 522 (1975)....................... 59
Thiel v. Southern Pacific Co., 328 U.S. 217 (1946) . . 59
Thornburg v. Gingles, 478 U.S. 30 (1986) . . . . passim
United States v. Clark, 249 F. Supp. 720 (S.D. Ala.
1965)...................................................................................... 36
Page:
vm
United States v. Dallas County Commission (and Dallas
County Board of Education), 850 F.2d 1430 (11th Cir.
1988), cert, denied, 490 U.S. 1030 (1989) . . . . . . . 52
United States v. Mississippi, 229 F. Supp. 925, 985 n. 35
(S.D. Miss. 1964), rev’d, 380 U.S. 128 (1965) . . . . 35
United States v. Mississippi, 380 U.S. 128 (1965) 34, 35
United States v. Sheffield Board of Commissioners, 435
U.S. 110 (1978) ................................................................. 33
Vasquez v. Hillery, 474 U.S. 254 (1 9 8 6 ) ............ .. 58
Voter Information Project v. City of Baton Rouge, 612 F.2d
208 (5th Cir. 1980) .............................. .4 0
Wells v. Edwards, 347 F. Supp. 453 (M.D. La. 1972),
aff’d, 409 U.S. 1095 (1 9 7 3 ) ............... .. 43, 49
Whitcomb v. Chavis, 403 U.S. 124 (1971) ............... ... 46
White v. Regester, 403 U.S. 182 (1971) . . . . . . 41, 47
WMCA v. Lomenzo, 377 U.S. 633 (1964) . . . . . . . 48
Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en
banc), aff’d on other grounds sub nom. East Carroll Parish
School Board v. Marshall, 424 U.S. 636 (1976) . 47, 48
Page:
Statutes:
La. Const, art. V § 22(b) ...................................................... 7
Pub. L. No. 91-285, 84 Stat. 314 (1970) ..................... 37
Pub. L. No. 94-73, 89 Stat. 400 (1 9 7 5 ) ........................ 37
Voting Rights Act of 1965 as amended, § 2, 42 U.S.C. §
1973 ............... .. ...........................................................passim
IX
Voting Rights Act of 1965 as amended, § 5, 42 U.S.C. §
1973c .......................................... 22, 24, 29-32, 36, 38, 52
Page:
Voting Rights Act of 1965, § 14(c)(1), 42 U.S.C. §
1973Z(c)(l) ...................................................... 3, 28, 29, 42
Other Authorities:
30 Fed. Reg. 9897 (1965) ................................................ 19
115 Cong. Rec. 38,493 (Dec. 11, 1 9 6 9 )........................ 37
D. Garrow, Protest at Selma (1978) ..................... 36
Extension of the Voting Rights Act: Hearings on H.R.
1407, H.R. 1731, H.R. 2942, H.R. 3112, H.R. 3198, H.R.
3473, and H.R. 3948 Before the Subcomm. on Civil and
Constitutional Rights of the House Comm, on the Judiciary,
97th Cong., 1st Sess. 2246 (1981) .......................... 30, 38
E. Haynes, The Selection and Tenure of Judges
(1944) ................................................................................... 55
H. R e p . No . 97-227 (1982) ............................................. 38
H.R. Rep. No. 94-196 (1 9 7 5 ) .......................................... 37
H.R. Rep. No. 97-227 (1 9 8 2 ) ................................. 31, 42
Hall, The "Route to Hell" Retraced: The Impact o f Popular
Election on the Southern Appellate Judiciary, 1832-1920,
Ambivalent Legacy: A Legal H istory of the South
(D. Bodenhamer & J. Ely eds. 1984).............................. 55
L. Friedman, A History of American Law (2d ed.
1985)...................................................................................... 55
Random House Dictionary of the English Language
(2d ed. 1987) ............................................ . . . . . . . . . 53
X
Page:
. . 37S. Rep. No. 94-295 (1975)
S. Rep. No. 97-417 (1 9 8 2 ).......................................passim
Southern Justice (L. Friedman ed. 1963)........................ 35
Voting Rights Act: Hearings on S. 53, S. 1761, S. 1992,
and H.R. 3112 Before the Subcomm. on the Constitution of
the Sen. Comm, on the Judiciary, 97th Cong., 2d Sess.
(1982) ....................... ................................... .. 19, 31, 39
Voting Rights: Hearings Before Subcomm. No. 5 of the
House Judiciary Comm, on H.R. 6400 and Other Proposals
to Enforce the Fifteenth Amendment to the Constitutional of
the United States, 89th Cong., 1st Sess. (1965) . . . 33-35
No. 90-757
In The
Supreme Court of tije Umteb States
October Term, 1990
RONALD CHISOM, €1 a l.,
Petitioners,
v.
Charles E. Roemer, et a l.,
Respondents.
On Writ of Certiorari to the United States
Court of Appeals for the Fifth Circuit
BRIEF FOR PETITIONERS
O p in io n s B e l o w
The opinion of the Court of Appeals remanding the case
to the district court with orders to dismiss the claims under
the Voting Rights Act in light of LULAC v. Clements, 914
F.2d 620 (5th Cir. 1990) (en banc), is contained in the
Appendix to the Petition for Certiorari [hereafter "Pet.
App."], at pages la-3a, and is reported at 917 F.2d 187 (5th
Cir. 1990). The opinion of the district court is contained in
2
the Pet. App. at pages 4a-64a and in the Supplemental
Appendix to the Petition for Certiorari [hereafter "Supp. Pet.
App."]; it is not reported. An earlier opinion of the Court
of Appeals is reported at 839 F.2d 1056 (5th Cir.), cert,
denied, 488 U.S. 955 (1988). An earlier opinion of the
district court is reported at 659 F. Supp. 183 (E.D. La.
1987).
J u r is d ic t io n
The judgment of the Court of Appeals was entered on
November 2, 1990. The petition for certiorari was filed on
November 14, 1990. On January 18, 1991, this Court
granted the petition for certiorari; it also consolidated this
case with No. 90-1032, United States v. Roemer. This
Court has jurisdiction under 28 U.S.C. § 1254(1).
S t a t u t o r y P r o v is io n s I n v o l v e d
This case involves section 2 of the Voting Rights Act
of 1965 as amended, 42 U.S.C. § 1973, which provides as
follows:
3
(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 guarantee set forth in
Section 1973(b)(f) 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 subdivison are not equally open
to participation by members of a class of citizens
protected by subdivision (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.
This case also involves section 14(c)(1) of the Voting
Rights Act of 1965, 42 U.S.C. § 19737(c)(1), which
provides, in pertinent part, as follows:
The terms "vote" or "voting" shall include
all action necessary to make a vote effective in any
primary, special, or general election, including, but
not limited to, . . . casting a ballot and having such
ballot counted properly with respect to candidates
for public or party office and propositions for
4
which votes axe received in an election.
S t a t e m e n t o f t h e C a s e
This case involves a challenge, under section 2 of the
Voting Rights Act of 1965 as amended, 42 U.S.C. § 1973,
to the sole multimember electoral district used to select a
Justice for the Louisiana Supreme Court. Petitioners claim
that the election scheme illegally dilutes the voting strength
of Orleans Parish’s African American voters by submerging
that majority African American parish in a majority white
district.
1. The Structure o f the Louisiana Supreme Court
The Louisiana Supreme Court is the highest court of
the State of Louisiana. The court has seven Justices,1 each
of whom is elected to a ten-year term. Pet. App. 7a.
The system under which justices are elected is, in all
‘Pursuant to state law, the Louisiana Supreme Court sits en banc
and its jurisdiction extends statewide. A single justice court may issue
a writ of habeas corpus and all needful writs, orders and process in aid
of the court’s jurisdiction, but exercise of this authority is subject to
review by the whole court. Pet. App. 8a.
5
essential respects, identical to the system under which other,
nonjudicial state officials are selected. Justices, like
nonjudicial public officials, are elected from geographically
defined districts; each Justice must reside in the district from
which he or she seeks election, and only voters who live in
that district are eligible to vote in its judicial election. Pet.
App. 7a, 8a. Candidates for the Supreme Court, like
candidates for nonjudicial offices, compete in an "open
primary": although party affiliation is indicated on the ballot,
all candidates compete against one another. Pet. App. 7a.
Elections for the Supreme Court, like elections for
nonjudicial positions, are governed by a majority-vote
requirement: if no candidate receives a majority of the votes
cast in the open primary, the two candidates who received
the most votes compete head-to-head in the general election.
Id.
Five of the seven Justices on the Louisiana Supreme
Court are elected from single-member districts. The five
single-member election districts consist of between eleven
and fifteen whole parishes each. The smallest of these
6
districts (the Fourth Supreme Court District) has a total
population of 410,850; the largest (the Fifth Supreme Court
District) has a total population of 861,000. Pet. App. 10a.
Two of the Justices are elected from the multi-member
First Supreme Court District. Pet. App. 7a-8a. The First
Supreme Court District is also the state’s only multimember
Supreme Court District. It encompasses Orleans Parish (the
city of New Orleans), and three adjoining parishes, St.
Bernard, Plaquemines, and Jefferson. Orleans Parish has a
slight African American majority both in total population and
in registered voters. Pet. App. 10a, 11a. The other three
parishes are all overwhelmingly white both in total
population and in registered voters. Id. Overall, then, the
First Supreme Court District has a substantial white majority
in both population and registered voters. Id. Elections for
the two Supreme Court positions from the First Supreme
Court District are not conducted in the same year. Rather,
the two terms are staggered. Pet. App. 8a.
The Louisiana Constitution does not require that the
election districts for the Supreme Court be apportioned
7
equally by population. Pet. App. 8a-9a. Indeed, the total
population deviation among districts is 74.95%. See Pet.
App. 12a (the Fourth Supreme Court District is 31.62%
below the equipopulous district size of 600,843, while the
Fifth Supreme Court District is 43.33% above the
equipopulous district size).
Although 29 percent of Louisiana’s citizens are African
American, every supreme court district is majority-white
both in total population and in number of registered voters.
See Pet. App. 10a. No African American person has been
elected to the Louisiana Supreme Court in modem times.
Only one African American person has served on the
Louisiana Supreme Court in this century. He was appointed
by the governor to fill a vacancy on the court for a period of
17 days during November of 1979, Pet. App. 35a-36a, and
under state law, could not seek election to the seat to which
he had been appointed. See La. Const, art. V § 22(b).
8
2. The Dilution o f African American Voting
Strength under the Current System o f Electing
Supreme Court Justices from the First Supreme
Court District
Petitioners are five African American registered voters
who live in Orleans Parish and an organization active in
voter registration and education. They brought suit on
behalf of a class of all African American voters in Orleans
Parish raising claims under both section 2 of the Voting
Rights Act of 1965 as amended, 42 U.S.C. § 1973 and the
Fourteenth and Fifteenth Amendments to the Constitution.2
The basic theory of petitioners’ section 2 claim is that
the voting strength of Orleans Parish’s African American
voters is diluted by their submergence within the majority-
white, multimember First Supreme Court District. In
proving that claim at trial, petitioners showed the presence
of all of the relevant circumstances that Congress in
amending section 23 and this Court in interpreting amended
2Only petitioners’ section 2 claim is before the Court.
’Congress identified seven ''[t]ypical factors":
"1. the extent of any history of official discrimination in the
state or political subdivision that touched upon the right of
9
section 24 have treated as probative of a section 2 violation.
At this juncture petitioners seek review only of the court of
appeals’ holding that, as a matter of law, they cannot state
the members of the minority group to register, to vote, or
otherwise to participate in the democratic process;
2. the extent to which voting in the elections of the state or
political subdivision is racially polarized;
3. the extent to which the state or political subdivision has
used unusually large election districts, majority vote
requirements, anti-single shot provisions, or other voting
practices or procedures that may enhance the opportunity for
discrimination against the minority group;
4. if there is a candidate slating process, whether the
members of the minority group have been denied access to
that process;
5. the extent to which members of the minority group in the
state or political subdivision bear the effects of discrimination
in such areas as education, employment and health, which
hinder their ability to participate effectively in the political
process;
6. whether political campaigns have been characterized by
overt or subtle racial appeals;
7. the extent to which members of the minority group have
been elected to public office in the jurisdiction. ”
S. Rep. No . 97-417, pp. 28-29 (1982) [hereafter "Senate Report"]. In
Thornburg v. Gingles, 478 U.S. 30, 43 n. 7 (1986), this Court
recognized the "authoritative" nature of the Senate Report.
4In Gingles, this Court identified three critical elements of a section
2 challenge to the use of multimember election districts:
First, the minority group must be able to demonstrate that it
is sufficiently large and geographically compact to constitute
a majority in a single-member district. . . . Second, the
minority group must be able to show that it is politically
cohesive. . . . Third, the minority must be able to
demonstrate that the white majority votes sufficiently as a bloc
to enable it—in the absence of special circumstances, such as
the minority candidate running unopposed, . . .—usually to
defeat the minority’s preferred candidate.
Id. at 50-51.
10
a claim under section 2.5 Thus, we summarize the evidence
documenting these circumstances only briefly.
This Court has identified racial bloc voting and the
degree of minority electoral success as the two "most
important Senate Report factors bearing on § 2 challenges
to multimember districts," Thornburg v. Gingles, 478 U.S.
at 48 n. 15. With regard to the first of these central factors,
the evidence is undisputed: Voting in judicial elections
within the First Supreme Court District is characterized by
After a full trial, the district court ruled against petitioners. Pet.
App. 61a-62a. Petitioners appealed that judgment, arguing that the
district court had been clearly erroneous with regard to several of its
factual findings, and had misapplied the law. After oral argument before
the panel, but before a decision was rendered, the Fifth Circuit, sitting
en banc in LULAC v. Clements, 914 F.2d 620 (5th Cir. 1990), cert,
granted sub nom. Houston Lawyers’ Ass’n v. Mattox, No. 90-813 (Jan.
18, 1991), overruled Chisom v. Edwards, 839 F.2d 1056 (5th Cir.), cert,
denied, 488 U.S. 955 (1988) (Chisom I), which had held section 2
applicable to elections for the Louisiana Supreme Court.
In light of LULAC v. Clements, the panel remanded this case to
the district court with directions to dismiss petitioners’ section 2 claim.
Chisom v. Roemer, 917 F.2d 187, 188 (5th Cir. 1990) (Chisom II). The
panel never reached the question whether the district court’s findings of
fact were clearly erroneous. Nor, despite the fact that all three of the
judges on the Chisom II panel believed that section 2 does apply to
appellate judicial elections, see LULAC, 914 F.2d at 635-45
(Higginbotham, J., joined by, among others, King, J.); id. at 651-67
(Johnson, J.), did the panel have any opportunity to address petitioners’
claims of legal error.
Given the posture of this case, this Court should assume the truth
of petitioners’ factual allegations. See Conley v. Gibson, 355 U.S. 41,
45-46 (1957).
Accordingly, if this Court reverses the court of appeals, it should
remand the case to that court to consider the question whether petitioners
have established an actual violation of section 2.
11
pervasive and severe racial bloc voting.6 There have been
34 recent judicial elections within the First Supreme Court
District in which both African American and white
candidates competed.7 The figures reveal a stark fact:
although a majority of African American voters supported
the African American candidate in 29 of those elections,
white voters never cast even a simple plurality of their votes
for a single African American candidate. They
overwhelmingly preferred the white candidate in every
election.
The difference in support for African American
candidates is staggering. Within Orleans Parish, African
American support for African American candidates in
contested elections since 1978 averaged 80 percent. White
support for those same candidates averaged only 17 percent.
6Senate Report factor 2 and the second and third factors identified
in Gingles. See Gingles, 478 U.S. at 56 (minority political cohesiveness
and white bloc voting, taken together, constitute racially polarized
voting).
7These elections all involved contests for lower courts, such as the
Civil District Court, Juvenile Court, and Criminal District Court. No
African American has run for the Louisiana Supreme Court since 1972.
See Gingles, 478 U.S. at 57 n. 25; McMillan v. Escambia County, 748
F.2d 1037, 1045 (11th Cir. 1984) ("the lack of black candidates [for a
particular position] is a likely result of a racially discriminatory system").
12
The difference in Jefferson Parish was even greater. There,
the average support for the African American candidates
among African American voters was 90 percent, while the
average support among white voters was only 10 percent.
See Supp. Pet. App., Table 3.
It is, of course, true that African American candidates
have won election to both judicial and nonjudicial offices
within Orleans Parish. See Pet. App. 37a-41a. But they
have done so in spite o f overwhelming white support for
their opponents; they won only because African American
voters outnumber white voters within Orleans Parish. See
Pet. App. 11a. Put simply, analysis of voter behavior in
elections involving the four-parish area establishes two
things: first, that voting is so racially polarized that no
African American candidate can win in an election in which
residents of all four parishes vote, and second, that African
Americans within Orleans Parish have the potential to elect
the candidate of their choice in Orleans Parish-only contests.
This stark racial bloc voting is true for both judicial
and nonjudicial races within the four parishes of the First
13
Supreme Court District. For example, in the 1987 Secretary
of State election, which involved ten candidates, African
American voters in the four parishes comprising the First
Supreme Court District cast a majority of their votes for
African American candidate Edwin Lombard, whom the
District Court acknowleged to be extremely popular and
qualified. Trial Transcript at 120. White voters, however,
the majority of their votes for one of the white candidates,
and cast only 20 percent of their votes for Lombard. See
Stipulation 80. Similarly, in the 1988 Democratic
presidential primary, the Rev. Jesse L. Jackson received
approximately 96.9% of the votes cast by African American
voters in the four parishes comprising the First Supreme
Court District, but only 3.5% of votes cast by whites.
Plaintiffs’ Exhibit 1. In short, when African American and
white candidates compete for the same office, African
American voters within the First Supreme Court District
almost always strongly prefer the African American
candidate, while white voters invariably and overwhelmingly
support the white candidate.
14
Second, there is a total lack of African American
electoral success in elections involving the entire First
Supreme Court District.8 No African American has won
election to any parish-wide office in St. Bernard,
Plaquemines, or Jefferson Parishes in recent times. Pet.
App. 42a. Because the electorate of the First Supreme
Court District is majority white, the severe degree of racial
bloc voting that prevails makes it impossible for the African
American community to elect an African American to the
Louisiana Supreme Court.5
With regard to the Senate Report factors that this Court
has identified as "supportive of, but not essential to, a
8Senate Report factor 7.
!*There are 492,691 registered voters in the First Supreme Court
District, 156,714 of whom (31.8%) of whom are African American and
335,977 (68.2%) of whom are white. For the African American
candidate to win, he or she would have to attract roughly 28 percent of
the white vote (even using the unrealistic assumptions that African
American voters participate injudicial elections at as high a rate as white
voters, see Pet. App. 51a, and that every African American voter votes
for the African American candidate, see id.). In only three of 32
parishwide races within Orleans Parish did an African American
candidate receive more than a quarter of the white vote. See Supp. Pet.
App. Table 3. In no election in the three suburban parishes did an
African American fare that well. Id. ; see also Major v. Treen, 574 F.
Supp. 325, 339 (E.D. La. 1983) (three-judge court) (white voters in the
suburban parishes, who moved out of Orleans Parish largely to escape
school desegregation decrees, are less likely than white voters within
Orleans Parish to support African American candidates); U.S. Exhibit 49
at 12 (same).
15
minority voter’s claim," Gingles, 478 U.S. at 48 n. 15, the
evidence is equally compelling. First, elections for Supreme
Court Justice from the First Supreme Court District are
characterized by all three of the structural practices Congress
identified as likely to "enhance the opportunity for
discrimination" against minority voters: unusually large
election districts, majority vote requirements, and anti-single
shot provisions. Senate Report at 29.10 The First Supreme
Court District has twice the population of any congressional
district in Louisiana and, in terms of population, is the
largest of any of the state’s election districts. Stipulation 82.
African American candidates are particularly handicapped by
the large number of voters who must be reached and
persuaded. See Pet. App. 32a. In addition, a majority vote
requirement applies to elections for the Supreme Court. Pet.
App. 7a. Finally, elections for the two Supreme Court
positions from the First Supreme Court District are not
conducted in the same year. Because the terms are
staggered, voters are prevented from single-shot voting. Pet.
“Senate Report factor 3.
16
App. 8a; Stipulation 22.11
Second, race plays a significant role in the electoral
process.12 While there is no formal slating process for
judicial candidates within the First Supreme Court District,13
bar association endorsements provide a critical form of
candidate support akin to slating in traditional legislative
contests. "All of 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." Pet. App. 31a. Moreover, the New Orleans
Single shot voting occurs when a voter (or group of voters) casts
votes for fewer than all the seats for which he or she is entitled to vote.
For example, in an election in which voters are entitled to vote for two
judicial candidates to fill two seats on the bench, a voter who single
shot votes would cast a vote for only his or her first-choice candidate.
By denying other candidates any electoral support, the single-shot voter
will increase the share of the total vote cast received by his or her first
choice. A cohesive racial minority may have the potential, under certain
circumstances (such as a very fragmented white electorate), to use this
strategy to elect its preferred candidate. See, e.g., City o f Rome v.
United States, 446 U.S. 156, 184 n. 19 (1980) (explaining the mechanics
of single-shot voting). If each seat in a multimember district is elected
separately, however, single-shot voting becomes impossible. Id.
12In 1960 Louisiana enacted a statute, struck down by this Court in
Anderson v. Martin, 375 U.S. 399 (1964), that put on the ballot the race
of each candidate "for any elective office in this state," id. at 400 n. 1
(quoting La. Rev. Stat. § 18:1174.1), treating judicial positions
identically with all other offices. This Court found that the statute
represented an attempt by the state to "require or encourage its voters
to discriminate upon the grounds of race." Id. at 402.
13Senate Report factor 4. ,
17
Bar Association has never endorsed an African American
candidate for judicial office. Pet. App. 32a. Although the
district court found no overt racial appeals in judicial
elections, see Pet. App. 42a, race continues to play a
prominent role in political campaigns in the First District,
particularly in Jefferson, Plaquemines and St. Bernard
parishes.14 For example, African American candidates for
positions on lower courts within the First Supreme Court
District have been advised by white consultants not to use
their pictures on campaign literature or make personal
appearances in Jefferson Parish, since such behavior would
highlight their race and cause white voter backlash. See
Trial Transcript at 64-66, 69-70, 74, 87-88. Moreover,
African American candidates are often reluctant to travel
into some areas of the First Supreme Court District because
of fears for their physical safety. A sitting African
American lower court judge testified that he would feel
"intimidated" campaigning in either Plaquemines or St.
Bernard parishes, see Trial Transcript at 25, and that, on a
14Senate Report factor 6.
18
recent trip to hold a judicial session in Plaquemines, he had
had the Sheriff of Orleans Parish contact the Sheriff of
Plaquemines, in order to ensure his safety while travelling in
Plaquemines. Id .15
Third, Louisiana’s long history of discrimination16 in
the area of voting rights is undisputed. Pet. App. 22a-23a;
see also Louisiana v. United States, 380 U.S. 145, 148-50
(1965) (describing Louisiana’s racially discriminatory use of
"grandfather clauses," "interpretation" tests, white primaries,
and wholesale purging and challenging of black voters);
Major v. Treen, 574 F. Supp. 325 (E.D. La. 1983) (three-
judge court) (describing Louisiana’s history of racial
discrimination in voting). Nor is that discrimination simply
ancient history. It continues to deny, dilute and abridge the
For a general history of discriminatory administration of justice
within Plaquemines Parish, see, e.g., Sobol v. Perez, 289 F. Supp. 392,
401-02 (E.D. La. 1968) (three-judge court) (per curiam) (detailing, inter
alia, how the parish’s elected state court district judge and other
authorities had harrassed the civil rights lawyer representing the
defendant in Duncan v. Louisiana, 391 U.S. 145 (1968)).
“Senate Report factor 1.
19
voting rights of Louisiana’s African American citizens.17
Fourth, the lingering effects of Louisiana’s long,
undisputed history of discrimination in such areas as
education and employment have left Orleans Parish’s African
American citizens less able than white citizens to participate
effectively in the political process.18 Pet. App. 30a-32a.
Census figures showed vast disparities in socioeconomic
indicators between African Americans and whites within the
First Supreme Court District. Pet. App. 30a; Stipulations
17Since 1965, Louisiana has been subject to the special precleareance
provisions of the Voting Rights Act of 1965. 30 Fed. Reg. 9897 (1965).
Pursuant to those provisions, twelve parishes, including one within the
First Supreme Court District, have been designated for the appointment
of federal examiners. Stipulation 45. Moreover, between 1965 and
1981, the Department of Justice objected to over one hundred proposed
changes of Louisiana’s electoral laws (including several applicable only
to Orleans Parish) because it was unable to conclude that the changes had
neither a discriminatory purpose nor a discriminatory effect. See Voting
Rights Act: Hearings on S. 53, S. 1761, S. 1992, and H.R. 3112 Before
the Subcomm. on the Constitution o f the Sen. Comm, on the Judiciary,
97th Cong., 2d Sess. 1783 (1982) [hereafter "1982 Senate Hearings"].
Finally, the state and localities within the First Supreme Court District
have continued to use districting schemes that diluted African American
voting strength. See, e.g., Citizens for a Better Gretna v. City o f Gretna,
636 F. Supp. 1113 (E.D. La. 1986), aff'd, 834 F.2d 496 (5th Cir.
1987), cert, denied, 488 U.S. 1002 (1989) (invalidating use of at-large
elections for city council of Jefferson Parish municipality); Major v.
Treen, 574 F. Supp. 345 (E.D. La. 1983) (three-judge court) (striking
down the state’s 1980 congressional apportionment in the Orleans Parish
area on section 2 grounds); Beer v. United States, 425 U.S. 130, 135
(1976) (describing how the scheme for electing the New Orleans City
Council initially adopted following the 1970 census improperly diluted
black voting strength).
18Senate Report factor 5.
20
36-45 and 93-99. For example, the median family income
for white families was twice the median income for African
American families in Orleans Parish. Stipulations 106 and
107. The upshot of this is that ”[t]he relatively lower
economic status of local black residents further affects . . .
such practicalities as campaign funding. In this regard, both
Judge [Revius] Ortique and Judge Bernadette Johnson
testified that black [judicial] candidates have considerable
difficulty raising campaign funds and that generally, the
better funded candidates win." Pet. App. 32a.
In addition to the Senate Report factors, this Court has
identified an additional circumstance relevant to section 2
claims of dilution through submergence: is the minority
group "sufficiently large and geographically compact to
constitute a majority in a single-member district"?19 In this
case, it is eminently possible to create a majority-African
American Supreme Court District. Orleans Parish, which
contains more than half of the current First Supreme Court
District’s total population, is majority African American in
19Gingles factor 1.
21
both total population and registered voters. See Pet. App.
10a & 11a. It would be possible to divide the current
district into an Orleans Parish-only district and a suburban
district containing Jefferson, St. Bernard, and Plaquemines
Parishes. The Orleans Parish district would be majority
African American, while the suburban district would be
overwhelmingly white. Each of these districts would have
a population roughly the size of the current Sixth Supreme
Court District. See Pet. App. at 10a. They would thus fit
comfortably within the population deviations currently
countenanced by Louisiana’s practice. Moreover, both
districts would adhere to the State’s practice of not dividing
parishes between or among Supreme Court Districts.20
2aThe United States, petitioner in No. 90-1032, United States v.
Roemer, appeared as a plaintiff-intervenor at trial. It presented evidence
showing that a smaller population deviation could be obtained while still
creating a majority-African American single-member district by adding
contiguous, predominantly African American areas of Jefferson Parish to
Orleans Parish. See United States’ Exhibit 14. According to the 1980
Census, this district would have a population deviation from the ideal
district of -4.4%.
22
3. The Course o f the Proceedings
Below
Petitioners filed their complaint in 1986. Originally,
the district court dismissed their complaint holding, among
other things, that section 2 did not apply to the election of
judges. Chisom v. Edwards, 659 F. Supp. 183 (E.D. La.
1987). A panel of the Fifth Circuit unanimously reversed,
holding that the plain language, the legislative history of the
original Voting Rights Act and of the 1982 amendments, the
complementary operation of section 2 and section 5 (which
this Court has consistently held applicable to judicial
elections, see Georgia State Board o f Elections v. Brooks,
111 S. Ct. 288 (1990) (No. 90-332); Martin v. Haith, A ll
U.S. 901 (1986), summarily a ff’g, 618 F. Supp 410
(E.D.N.C. 1985)), and the longstanding interpretation of the
Act by the Attorney General compelled the conclusion that
section 2 covers judicial elections. Chisom v. Edwards, 839
F.2d 1056 (5th Cir. 1988) (Chisom I). The defendants’
requests for rehearing and rehearing en banc were denied
without dissent, and this Court denied certiorari. Roemer v.
23
Chisom, 488 U.S. 955 (1988).
Petitioners then sought an injunction enjoining the state
from going forward with an election under the challenged
system. The district court granted petitioners’ request,
Chisom v. Roemer, 690 F. Supp. 1524 (E.D. La. 1988), but
a divided panel of the court of appeals reversed, Chisom v.
Roemer, 853 F.2d 1186 (5th Cir. 1988).
The case then proceeded to trial.21 After trial, the
district court concluded that petitioners had not established
a violation of section 2. Pet. App. 52a-61a. Petitioners
appealed, contending that the district court both made
clearly erroneous findings of fact and misapplied the
relevant law. After briefing and oral argument occurred,
the Fifth Circuit, sitting en banc in LULAC v. Clements,
914 F.2d 620 (5th Cir. 1990), cert, granted sub nom.
Houston Lawyers’ Ass’n v. Mattox, No. 90-813 (Jan. 18,
1991), overruled Chisom 1. In light of LULAC, the panel
2!The United States, which had previously participated in the court
of appeals as amicus curiae, intervened as a party plaintiff upon the
Attorney General’s certification that this was a case of exceptional public
importance.
24
remanded this case to the district court with directions to
dismiss petitioners’ section 2 claim. Chisom v. Roemer, 917
F.2d 187, 188 (5th Cir. 1990) (Chisom IT).
S u m m a r y o f t h e A r g u m e n t
The plain language and structure of the Voting Rights
Act of 1965 show that section 2 covers judicial elections.
The Act’s definitional provision covers voting for every
"public office" without exception, and section 2 itself
provides that "no voting procedure" may be used that results
in racial vote dilution. Moreover, this Court has
unanimously held that section 5 of the Voting Rights Act,
which Congress expressly directed be interpreted in tandem
with section 2, covers judicial elections. If section 5
reaches judicial elections, then section 2 must as well.
The legislative history of the Act, from its original
passage in 1965 through its extensions and amendments in
1970, 1975, and 1982, buttresses the conclusion that section
2 covers judicial elections. The drafters of original section
2 intended it to cover every election, and the Congresses
25
that extended and amended the Act were aware of its
salutary impact in integrating state court benches. The 1982
amendments of section 2 were intended to expand section
2 ’s scope further, and Congress’ use of the word
"representatives" in a single statutory clause cannot be read
as an attempt to carve out an exemption from the Act for
judicial elections.
The fact that the one-person, one-vote requirement does
not apply to judicial elections is irrelevant to the scope of
section 2. The quantitative theory of vote dilution that
underlies one-person, one-vote is entirely distinct from the
qualitative theory of vote dilution that provides the basis for
section 2. Indeed, one-person, one-vote is intended to
protect the voting rights of the majority while section 2 is
intended to protect the voting rights of minorities.
Nor do ostensibly unique aspects of the judicial office
justify creating an exception to section 2’s broad coverage.
The fact that judges need not be elected has no bearing on
whether, having decided nonetheless to elect its judiciary, a
state must ensure that its election system is fair to African
26
American voters. In addition, although they do not respond
directly to constituent sentiment, elected judges are
"representatives" in several significant respects.
Furthermore, it is critical to the administration of justice
that no identifiable racial group be excluded from
participating equally in the adjudicative process.
Lastly, manageable standards exist for assessing section
2 claims involving judicial elections. Congress has set out
a flexible, totality-of-the-circumstances test that is entirely
appropriate for evaluating allegations of racial vote dilution
in the election of judges. And the inapplicability of the one-
person, one-vote requirement poses no serious obstacle to
determining whether non-dilutive alternatives to the present
system exist.
27
A r g u m e n t
i .
The Plain Language and Structure o f the
Voting R ights Act Compels the Conclusion that
Section 2 Applies to J udicial Elections
This Court has long recognized Congress’ "intention to
give the [Voting Rights] Act the broadest possible scope,"
Allen v. State Board o f Elections, 393 U.S, 544, 566-67
(1969). The plain language Congress chose to describe the
Act’s coverage and the Act’s overall structure convincingly
show that judicial elections are covered by section 2.
A. The Plain Language o f the Act
Section 2 announces an absolute prohibition on racial
discrimination in voting:
No voting qualification or prerequisite to voting or
standard, practice, or procedure shall be imposed
or applied by any State . . . in a manner which
results in the denial or abridgement of the right of
any citizen of the United States to vote on account
of color . . . .
42 U.S.C. § 1973(a) (emphasis added). Section 2 contains
neither an express nor an implicit exemption for any
28
category of elections. See also South Carolina v.
Katzenbach, 383 U.S. 301, 316 (1965) (section 2 "broadly
prohibits" voting discrimination). Had Congress intended
to permit states to conduct their judicial elections in a
fashion that results in denying or abridging the voting rights
of African Americans, it surely would have said so directly.
Moreover, the definitional provision of the Act, section
14(c)(1), confirms the conclusion that section 2 reaches
judicial officers, for it states, in pertinent part, that
[t]he terms "vote" or "voting" shall include all
action necessary to make a vote effective in any
primary, special, or general election, including,
but not limited to, . . . casting a ballot and having
such ballot counted properly with respect to
candidates fo r public or party ojfice and
propositions for which votes are received in an
election.
42 U.S.C. § 19737(c)(1) (emphasis added). Aspirants for
elective judicial positions, such as Justice of the Louisiana
Supreme Court, are clearly "candidates for public . . .
office," and the means by which they attain those offices
are equally clearly "elections." See also Dougherty County
Board o f Education v. White, 439 U.S. 32, 37 (1978)
29
(section 14(c)(1) "expansively defines the term ’voting’").
The plain language of the Voting Rights Act thus shows
Congress’ consistent intention to reach all forms of electoral
discrimination and to ensure that African Americans have an
equal opportunity to elect state-court judges as well as other
elected officials.
B. The Relationship Between Section 2 and Section
5
This Court has squarely held that section 5 of the
Voting Rights Act, 42 U.S.C. § 1973c-which requires
certain jurisdictions (including Louisiana) with a history of
racial discrimination to seek the prior approval
("preclearance") of either the Attorney General or the United
States District Court for the District of Columbia before
making any change in their election practices-applies to
judicial elections. See State Board o f Elections v. Brooks,
111 S.Ct. 288 (1990); Martin v. Haith, A l l U.S. 901
(1986). The Attorney General, the official responsible for
interpreting and administering section 5, has consistently
applied section 5 to judicial elections, and he informed
30
Congress of this practice prior to the 1982 extension of
section 5. See, e.g., Extension o f the Voting Rights Act:
Hearings on H R . 1407, H.R. 1731, H.R. 2942, H.R. 3112,
H.R. 3198, H.R. 3473, and H.R. 3948 Before the Subcomm.
on Civil and Constitutional Rights o f the House Comm, on
the Judiciary, 97th Cong., 1st Sess. 2246 (1981) ["1982
House Hearings"] (noting Attorney General’s letter of Dec.
26, 1972, to the State of Alabama, interposing an objection
to a change from "elective to appointive judges"); id. at
2247 (noting Attorney General’s letter of Dec. 20, 1976, to
the State of Alabama, objecting to "Act No. 1205 [which]
combines counties for [a] judicial district); id. at 2260
(noting Attorney General’s letters of Feb. 7, 1980, and Oct.
10, 1980, to the City of Baton Rouge and the State of
Louisiana, regarding the use of majority-vote requirements
for elected judges).
Given this Court’s repeated, unanimous conclusion that
section 5 covers judicial elections, the relationship between
that provision and section 2 compels the conclusion that
section 2 applies to judicial elections as well. Congress
31
explicitly intended the two provisions to work in tandem.
See Senate Report at 5-6. It explained:
Under _ the Voting Rights Act, whether a
discriminatory practice or procedure is of recent
origin affects only the mechanism that triggers
relief, i.e ., litigation [under section 2] or
preclearance [under section 5], The lawfulness of
such a practice should not vary depending on when
it was adopted, i.e., whether it is a change.
H R- Rep . No . 97-227, p. 28 (1982) ["House Report"]; xee
also 1982 Senate Hearings at 85 (testimony of Attorney
General William French Smith) (the 1982 amendments to
section 2 "exten[d] nationwide" the effects test of section 5
and apply that test not only to proposed changes but also "to
existing situations"). To adopt the position that only section
5 applies to judicial elections would ignore Congress’
position that "[sjection 2 remains the major statutory
prohibition of all voting rights discrimination," Senate
Report at 30 (emphasis added), and 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
32
would be subject to Section 5 preclearance and could not be
implemented." LULAC v. Clements, 914 F.2d at 645
(Higginbotham, L , concurring in the judgment). Congress
did not enact a Voting Rights Act "grandfather clause" that
lets Louisiana continue to elect its Supreme Court under a
regime that the Voting Rights Act would not permit it to
adopt today.
n.
The Legislative H istory of the 1965 Act and the
1982 Amendments Confirms that Section 2
Applies to J udicial Elections
Since its enactment in 1965, the Voting Rights Act has
been extended thrice (in 1970, 1975, and 1982) and
substantially amended. At each juncture, Congress has made
clear its commitment "to counter the perpetuation of 95
years of pervasive voting discrimination," City o f Rome v.
United States, 446 U.S. 156, 182 (1980), and to "create a
set of mechanisms for dealing with continued voting
discrimination . . . comprehensively and finally." Senate
Report at 5.
33
A. Congress’ Intention in 1965
The Voting Rights Act originated as H.R. 6400, a bill
drafted by the Johnson Administration and introduced by
Rep. Emanuel Celler, the Chairman of the House Judiciary
Committee. That Committee conducted lengthy hearings on
the bill. See Voting Rights: Hearings Before Subcomm. No.
5 o f the House Judiciary Comm, on H.R. 6400 and Other
Proposals to Enforce the Fifteenth Amendment to the
Constitutional o f the United States, 89th Cong., 1st Sess.
(1965) ["1965 House Hearings"]. At those hearings,
Attorney General Nicholas D. Katzenbach testified in detail
as to the bill’s scope. This Court has held that, "in light of
the extensive role [he] played in drafting the statute and
explaining its operation to Congress," Attorney General
Katzenbach’s construction of the Act is entitled to great
weight. United States v. Sheffield Board o f Commissioners,
435 U.S. 110, 131 & n. 20 (1978); see also Dougherty
County Board o f Education v. White, 439 U.S. at 37 n. 5;
Allen v. State Board o f Elections, 393 U.S. at 566-59;
34
Senate Report at 17 & n. 51.
Attorney General Katzenbach’s statement to the
Committee was explicit: "Every election in which registered
electors are permitted to vote would be covered" by the new
Act. 1965 House Hearings at 21 (emphasis added). He
reiterated this intention in a number of additional colloquies.
See, e.g., id. at 50 (responding to Rep. Byron Rogers); id.
at 67 (responding to Rep. Robert Kastenmeier); id. at 121
(responding to Rep. Jacob Gilbert). The Attorney General
made clear that there was no categorical exception to the
Act’s scope.
Moreover, the Attorney General’s statement to the
Committee reflected the Administration’s awareness of and
concern about the relationship between the elected southern
judiciary and the denial and abridgment of African American
voting rights. One of the central props buttressing the
"establish[ment of] white supremacy in a completely
segregated society," United States v. Mississippi, 380 U.S.
35
128, 144 (1965),22 was the maintenance of "[a]n electoral
system to preserve the white control on executive and
judicial offices," United States v. Mississippi, 229 F. Supp.
925, 985 n. 35 (S.D. Miss. 1964) (three-judge court)
(Circuit Judge John R. Brown, dissenting) (emphasis added),
rev’d, 380 U.S. 128 (1965).23 Attorney General Katzenbach
opened his testimony explaining the need for the Voting
Rights Act with an account of how efforts to register
African American voters in Selma, Alabama, had been
obstructed by local officials. He explicitly identified the
role of elected state-court judges, who had "convicted, and
punished Negroes discriminatorily, and had issued and
enforced injunctions preventing Negroes from organizing
and discussing their grievances." 1965 Hearings at 8
22The opinion in United, States v. Mississippi was discussed by
Assistant Attorney General Marshall in his testimony before the
Committee, see 1965 House Hearings at 306, and was introduced into
the hearings record, id. at 484.
23This history is set out in a number of sources. See generally, e.g.,
Southern Justice (L. Friedman ed. 1963). See also, e.g., Hamilton
v. Alabama, 376 U.S. 650 (1964) (reversing contempt citation issued by
elected state trial judge and upheld by elected state supreme court because
an African American litigant refused to be addressed by her first name
when white witnesses were given courtesy titles); Johnson v. Virginia,
363 U.S. 61 (1963) (reversing conviction of African American spectator
who refused to sit in segregated area of a courtroom).
36
(emphasis added).24
Against this backdrop of pervasive African American
disenfranchisement and defiance of federal constitutional law
by an elected state judiciary, Congress sought to empower
African American citizens comprehensively by guaranteeing
their full participation in every aspect of the electoral
process. Thus, as the Fifth Circuit recognized, section 2, as
originally enacted, clearly covered judicial elections. LULAC
v. Clements, 914 F.2d at 625.25
B. Congress’ Understanding During the 1970 and
1975 Extensions
In both 1970 and 1975, Congress extended the
preclearance provisions of section 5 of the Voting Rights
24The Department of Justice was at the time of the 1965 hearings
involved in a lawsuit against, among others, Alabama state court Judge
James Hare, who had been issuing what a federal court found to be
"unwarranted and illegal injunctions" against demonstrators seeking the
right to vote in Selma. United States v. Clark, 249 F. Supp. 720, 728
(S.D. Ala. 1965) (three-judge court); see also D. Garrow, Protest at
Selma 33-34, 39-40 & 282 n. 55 (1978) (describing Hare’s use of his
judicial power to quash African American attempts to register).
^The slender reed upon which the Fifth Circuit ultimately relies in
claiming a congressional intention to exempt judicial elections from
section 2~the presence in the 1982 amendments of the word
"representatives," see LULAC v. Clements, 914 F.2d at 624-30-is
completely irrelevant to Congress’ original intent, since the word appears
nowhere in the statute.
37
Act. See Pub. L. No. 91-285, 84 Stat. 314 (1970); Pub. L.
No. 94-73, 89 Stat. 400 (1975). On both occasions,
Congress identified the increasing presence of elected
minority jurists on state court benches as a sign of progress
under the Act. See, e.g., S. Rep. No . 94-295, p. 14 (1975)
(relying on figures from the U.S. Commission on Civil
Rights that showed the number of African American
"judges" and "justices of the peace" elected in counties with
populations that were more than 25% African American);
H.R. Re p . No . 94-196, p. 7 (1975) (referring to documents
describing the number of African American "Judges,
Justices [and] Magistrates" elected in various jurisdictions);
115 Cong. Rec. 38,493 (Dec. 11, 1969) (comments of Rep.
Ryan) (inclusion of table showing number of African
American elected "Judges, District Court, . . . Magistrates,
[and] Justices of the peace"). Thus, Congress clearly
ackowledged again that one of the intended consequences of
the Voting Rights Act was to enable minority citizens to
participate equally in judicial elections and to elect minority
judges to state courts.
38
C. The 1982 Extension and Amendment o f the
Voting Rights Act
In 1982, Congress revised the Voting Rights Act in
several significant respects. First, it amended section 2 to
"dispositively rejec[t] the position of the plurality in Mobile
v. Bolden, 446 U.S. 55 (1980)," requiring plaintiffs in a
vote-dilution lawsuit to prove that the challenged practice
was adopted or maintained for a discriminatory purpose.
Thornburg v. Gingles, 478 U.S. at 43. Second, it extended
the special preclearance requirement of section 5.
Significant attention was devoted to the progress
minority voters had made in electing the candidates of their
choice to a wide variety of public offices. And elected
state-court judges were again explicitly included within the
data relied on by Congress. See, e.g. H. Rep . No . 97-
227, p. 7-9 (1982) (relying on a report by the Joint Center
for Political Studies, Black Elected Officials: A National
Roster, 1980, at 4-5, 14-15, which specifically identified
judges); 1982 House Hearings at 38, 193, 239, 280, 503,
39
574, 804, 937, 1182, 1188, 1515, 1528, 1535, 1745, 1839,
2647 (referring to elected state-court judges); 1982 Senate
Hearings at 208-09, 669, 748, 788, 789 (1982) (same). Not
once did a single witness suggest that the election of judges
should be treated any differently than the election of any
other official. Not once did a single witness or Member of
Congress suggest that judicial elections should be exempted
from the Act generally, or from section 2 specifically.26
It was against this background of clear awareness of the
Voting Rights Act’s role in integrating the elected state
judiciary and disapproval of the approach taken by this
Court in Bolden that Congress amended section 2 of the
Voting Rights Act. The most elementary consideration of
Congress’ purpose in amending section 2 utterly forecloses
the argument that, despite the presence of explicit
congressional intent in 1982 to broaden the scope of the
Voting Rights Act, Congress implicitly exempted judicial
^Indeed, &e one explicit statement regarding the coverage of judicial
elections under section 2 expressly stated that the amended section would
”encompas[s] all governmental units, including . . . judicial districts
. ." Senate Report at 151 (separate comments of Sen. Orrin Hatch).
40
elections from the scope of section 2.
First, section 2 was amended to eliminate any
requirement that a plaintiff claiming racial vote dilution
prove the dilutive purpose as well as the dilutive result of
the challenged practice. Thus, section 2 of the Voting
Rights Act provides broader protection than either section
1 of the Fourteenth Amendment or section 1 of the Fifteenth
Amendment, because they each require proving purpose as
well as result. Senate Report at 15, 39-40. The Fifteenth
Amendment, of course, clearly prohibits states from electing
their judges under a system that purposefully dilutes African
American voting strength. Voter Information Project v. City
o f Baton Rouge, 612 F.2d 208 (5th Cir. 1980). The only
difference between the Fifteenth Amendment and amended
section 2 is the presence of a purpose requirement. See
Senate Report at 36-37 (whether or not a discriminatory
purpose is shown is irrelevant to finding liability under
section 2). Therefore, section 2 must prohibit states from
electing their judges under a system that results in the
dilution of black voting strength, whatever the purpose of
41
the system. Had Congress intended to create an exemption
to the results test for judicial elections, it would have done
so expressly.
Second, the inclusion of the word "representatives" in
the delineation of the results test of amended section 2
provides absolutely no warrant for inferring an exemption
of judicial elections from section 2’s scope. That language
was added to "embodfy] the test laid down by the Supreme
Court in White [v. Regester, 403 U.S. 182 (1971)]," for
determining when the use of multimember election districts
dilutes minority voting strength. Senate Report at 27. It
was not added to limit the preexisting scope of section 2,
which undeniably covered judicial elections prior to 1982.21
Moreover, in discussing the White results test, Congress
used the word "representative" interchangeably with such
words as "candidate" or "elected official." See, e.g., Senate
^The Fifth Circuit relied reflexively on language in the opinions of
various district courts that had held that one-person, one-vote does not
apply to judicial offices because judges are not "representatives" to lend
color to its contention that Congress chose the word "representatives"
precisely to exclude judges from the scope of section 2. See LULAC,
914 F.2d at 626 n. 9 (citing cases). Notably, not a single reference to
any of the cases mentioned by the LULAC court appears anywhere in the
legislative history of the 1982 amendments.
42
Report at 16, 28, 29, 30, 31, and 67; House Report at 4,
18. Thus, Congress never evinced any intention to give
"representative" the exceptionally restrictive meaning
advanced by the court of appeals in LXJLAC. To inject such
an exemption into section 2 would violate the elementary
canon of statutory construction that "the plain, obvious and
rational meaning of a statute is always to be preferred to any
curious, narrow, hidden sense that nothing but the exigency
of a hard case and the ingenuity and study of an acute and
powerful intellect would discover." Chandler v. Roudebush,
425 U.S. 840, 848 (1976) (internal quotation marks
omitted). The plain, obvious, and rational meaning of
section 14(c)(1) has always been that all elections, including
judicial elections, are covered by all of the Act’s substantive
commands.28 And the plain, obvious, and rational meaning
of the 1982 amendment of section 2 was simply to eliminate
the purpose requirement announced in Mobile v. Bolden and
to continue the coverage of elected state court judges that
“Nothing in the 1982 amendments altered section 14(c)(1), which
defines the term "voting" for purposes of section 2 and section 5.
43
had existed since 1965.
III.
The Inapplicability of the One-Person,
One-Vote Requirement of the Equal
P rotection Clause to Judicial Elections is
Irrelevant to the Scope of Section 2
In Wells v. Edwards, 409 U.S. 1095 (1973), this Court
summarily affirmed the holding of a district court that the
requirement of one-person, one-vote does not govern
elections to the Louisiana Supreme Court. 347 F. Supp.
453 (M.D. La. 1972) (three-judge court). The court of
appeals seized on this holding to conclude that the statutory
prohibition on racial vote dilution contained in section 2
should not apply to judicial elections either. LULAC, 914
F.2d at 626-28. That conclusion is simply wrong. First,
this Court’s resolution of Wells does not exempt judicial
elections from constitutional and statutory scrutiny
altogether. Second, the requirement of equipopulous
districting and the purposes it serves are entirely distinct
from the prohibition on racial vote dilution and its central
objective.
44
A. The Equal Protection Clause Does Govern
Judicial Elections
The equal protection clause of the Fourteenth
Amendment is broader than the judicially created
requirement of one-person, one-vote. Thus, even though
one-person, one-vote does not govern judicial elections, the
equal protection clause itself does apply to judicial elections.
See Salyer Land Co. v. Tulare Lake Basin Water Storage
District, 410 U.S. 719, 730 (1973) (even though the
appellants who challenged a scheme for electing members
of a limited authority "derive no benefit from the Reynolds
and Kramer lines of cases, they are, of course, entitled to
have their equal protection claims assessed"). Thus, for
example, it would undeniably violate the equal protection
clause for Louisiana to allow only voters born in odd-
numbered years to vote in elections to pick the Supreme
Court. It would also violate the equal protection clause, as
well as the Fifteenth Amendment, for Louisiana to
deliberately establish or maintain a judicial election system
45
that makes it impossible for African American voters to cast
effective ballots. If, for example, a Louisiana statute
expressly provided that ballots would be identified according
to the race of the persons who had cast them, and that a
ballot cast by an African American voter would be counted
as one-half of a vote for the candidate named, that, too,
would violate the equal protection clause, despite the fact
that one-person, one-vote does not apply to judicial
elections.
Thus, the constitutional protection of the efficacy and
weight of African American ballots in judicial elections
clearly extends beyond the protection afforded by the
requirement of equipopulous districting. And since
Congress has the power under the enforcement clauses of
the Fourteenth and Fifteenth Amendments to ban practices
with discriminatory effects, as well as practices with
discriminatory purposes, its use of that power in enacting
the Voting Rights Act reaches even practices that would pass
muster under the one-person, one-vote cases.
46
B. The Theory o f Vote Dilution Underlying One-
Person, One-Vote Is Entirely Distinct from the
Theory o f Racial Vote Dilution Embodied in
Section 2
Reynolds v. Sims, 376 U.S. 533 (1964), struck down
the apportionment scheme for the Alabama legislature
because population disparities among the districts diluted the
voting strength of voters living in the more heavily
populated districts. But "population differences are not the
only way in which a facially neutral districting plan might
unconstitutionally undervalue the votes of some and
overvalue the votes of others." Senate Report at 20. Even
when one person’s vote, in the abstract, is worth as much
as any other person’s, racial polarization and the
submergence of a discrete and insular group of African
Americans in a majority-white electoral jurisdiction may
effectively deny the members of that group any opportunity
to elect the candidates they prefer. See, e .g ., Gaffney v.
Cummings, 412 U.S. 735, 751 (1973); Whitcomb v. Chavis,
403 U.S. 124, 142 (1971); Bums v. Richardson, 384 U.S.
47
73, 88-89 (1966).
Indeed, White v. Regester, and Zimmer v. McKeithen,
485 F.2d 1297 (5th Cir. 1973) (en banc), aff’d on other
grounds sub nom. East Carroll Parish School Board v.
Marshall, 424 U.S. 636 (1976), the two cases on which
Congress relied in delineating the results test of amended
section 2, Senate Report at 28 n. 113, both rest on precisely
that distinction. In White, this Court reversed the district
court’s determination that the apportionment of the Texas
House of Representatives violated one-person, one-vote, but
sustained a finding that the use of multimember districts
impermissibly diluted African American and Hispanic voting
strength. Compare 412 U.S. at 761-64 (rejecting plaintiffs’
one-person, one-vote claims) with id. at 765-70 (finding
impermissible racial vote dilution). Even more pointedly, in
Zimmer a one-person, one-vote challenge was not even
theoretically available. East Carroll Parish selected its
police jury through at-large elections, which as a matter of
definition comply with one-person, one-vote: there can be
no population deviation among districts when there are no
48
districts. Zimmer, 485 F.2d at 1301. The fact that
plaintiffs could advance a claim of racial vote dilution
despite the exemption of at-large elections from attack on
one-person, one-vote grounds totally undercuts the
assumption on which the LULAC analysis rests: that the
inapplicability of one-person, one-vote to judicial elections
necessarily shields them from scrutiny under section 2.
Another way of understanding this distinction is to
realize that Reynolds v. Sims and its progeny protect an
interest that is entirely distinct from the interest protected
by the constitutional and statutory prohibitions on racial vote
dilution. The standard required by Reynolds attempts to
protect majority voting rights. Equipopulous districting
combats the "frustration of the majority will" that results
from malapportionment, 377 U.S. at 576, and prevents "a
minority strangle hold on the State Legislature," id. at 570.29
29This Court’s central concern with protecting the majority’s voice
in the legislative process explains why, in Reynolds and its companion
cases, the Court so heavily emphasized the fact that the existing
apportionment schemes allowed a numerical minority of the population
to elect a majority of the states’ legislators. See, e.g., Reynolds, 377
U.S. at 569; WMCA v. Lomenzo, 377 U.S. 633, 647 (1964); Maryland
Comm, fo r Fair Representation v.Tawes, 377 U.S. 656, 665-66 (1964);
Davis v. Mann, 377 U.S. 678, 688-89 (1964); Roman v. Sincock, 377
U.S. 695, 705 (1964); Lucas v. Colorado General assembly, 377 U.S.
49
But the value underlying the prohibition on racial vote
dilution is the protection of minority voters’ participation.
See Gingles, 478 U.S. at 49 and 50-51 (setting out the test
for claims of racial vote dilution under section 2 with
reference to "minority" voters’ opportunities to participate);
Senate Report at 28-29 (repeatedly using the word
"minority" in describing the factors relevant to assessing a
section 2 violation). And section 2 protects the voting rights
of African Americans even when they "constitute] a distinct
population and registered-voter minority in each challenged
district." Gingles. 478 U.S. at 38.
The difference between the underpinnings of one-
person, one-vote and section 2 ’s ban on racially dilutive
voting schemes totally undermines the court of appeals’
reliance on the summary affirmance in Wells. Put simply,
the inapplicability of constitutional requirements of
equipopulous districting to judicial elections casts no light
whatsoever on the scope of section 2.
713, 725 (1964).
50
IY.
Th e Post-Election Duties of Judges
Do Not J ustify Creating an Exception to
Section 2 ’s Coverage of Judicial Elections
The analytic heart of the court of appeals opinion in
LULAC is a normative vision of "the judge’s office" as the
"precise antithesis" of a "representative one." 914 F.2d at
628. Thus, the court below concluded, section 2 does not
apply to judicial elections for "the cardinal reason that
judges need not be elected at all. Id. at 622.
A fair reading of the majority’s opinion will discern in
it a deep uneasiness with the idea of an elected judiciary.
But whether judges should or shouldn’t be elected is quite
simply beside the point. Louisiana has decided to elect its
Supreme Court. The only question properly before this
Court is whether a state that elects its judges can use an
election system that denies African American voters the
ability to participate fully in the selection process. As we
explain below, the court of appeals’ approach is trebly
flawed. First, the court of appeals erred in holding that the
51
fact that the constitution does not require that states elect
their judges relieves states of the obligation to use racially
fair election systems. Second, the court of appeals
improperly substituted its judgment regarding the proper
level of popular control for the State of Louisiana’s
judgment. Third, the court of appeals ignored a clear,
longstanding concern with ensuring representativeness within
the state adjudicatory process.
A. That Judges Need Not Be Elected At All Is
Irrelevant to Whether Section 2 Covers Judicial
Elections
It is, of course, true that states have substantial latitude
in deciding how to select their judiciary.30 But if a State
does choose to select its judges through popular elections, it
must comply with section 2.
The fact that judges need not be elected in the first
place is irrelevant to section 2’s coverage. States are not
30A decision by a state, such as Louisiana that is covered by section
5 of the Voting Rights Act to change from an elected to an appointive
judiciary would require preclearance. See Brooks, 111 S.Ct. 288; Haith,
A ll U.S. 901; cf. Allen, 393 U.S. 301 (change from elected to appointed
superintendent of schools in certain Mississippi counties required
preclearance).
52
required to hold elections to fill positions on local boards of
education either, because such boards are of a
"nonlegislative character." Sailors v. Board o f Education o f
Kent County, 387 U.S. 105, 108, 111 (1967). But when
local school boards are filled by election, section 2 clearly
applies. See, e.g., United States v. Dallas County
Commission (and Dallas County Board o f Education), 850
F.2d 1430 (11th Cir. 1988), cert, denied, 490 U.S. 1030
(1989); League o f United Latin American Citizens v.
Midland Independent School District, 829 F.2d 546 (5th Cir.
1987); Buckanaga v. Sisseton Independent School District
No. 545, 804 F.2d 469 (8th Cir. 1986); Brown v. Board o f
School Commissioners, 706 F.2d 1103 (11th Cir.), a ff’d,
464 U.S. 1005 (1983). Cf. Allen v. State Board o f Elections
(Bunton v. Patterson), 393 U.S. 544 (1969) (section 5
covers change from elected to appointed school
superintendent).
It is the fact of election, then, rather than the function
performed by an elected official after his or her selection,
that triggers section 2. Section 2 is intended to protect
53
minority voters’ ability to participate in the election process,
including their right to cast effective ballots. Nothing in
section 2 limits its scope only to offices that must
constitutionally be filled by election.
B. Elected Judges Are In Fact "Representatives"
The court of appeals asserted that because judges have
no "constituents" and do not speak on behalf of "segments"
of the community, they are not "representatives," and may
therefore be elected in ways that deny to African Americans
the ability whites enjoy to determine which persons should
speak for the whole community. LULAC, 914 F.2d at 628.
In fact, judges do represent the community in that they
"speak and act for [it] by delegated authority," Random
House Dictionary of the English Language 1634 (2d
ed. 1987) (defining "represent"). In a democracy, all power
ultimately flows from popular consent. When a state’s
constitution or statutes gives judges the right to exercise
adjudicative authority , judges are ultim ately
"representatives" of the people. The way in which judges
54
"represent" the community may differ significantly from the
way in which legislators "represent" it, because judges are
not expected to base their determinations on the voters’
views about proper outcomes. But they are
"representatives" nonetheless. They "represent" (in the
sense of "reflecting") the choice of the voters as to who
should exercise, on behalf of the community as a whole and
using his or her independent judgment, adjudicative power.
Implicit in the court of appeals’ analysis is the belief
that judges should not be elected at all, because election
inevitably compromises judicial independence from popular
passions and sentiments. It would hardly be surprising if
federal judges were to prefer an appointed judiciary,
enjoying life tenure, to an elected judiciary, dependent for
its continuation in office on popular approval. But the court
of appeals erred critically in elevating the elected state
judiciary to the status of "a mystical entity" and in potraying
state judges "as annointed priests set apart from the
community." Landmark Communications v. Virginia, 435
U.S. 829, 842 (1978) (quoting Bridges v. California, 314
55
U.S. 252, 291 (1941) (Frankfurter, J., dissenting). See also
Craig v. Harney, 331 U.S. 367, 377 (1947) ("Judges who
stand for reelection run on their records. That may be a
rugged environment. Criticism is expected.").
The desire to give voters the ability to select the
judiciary directly, through the political process, was the
motivating factor behind the switch from appointive to
elected state judiciaries during the heyday of Jacksonian
democracy. See generally, e.g., E. Haynes, The
Selection and Tenure of Judges (1944); L. Friedman,
A History of American Law 126-27 (2d ed. 1985); Hall,
The "Route to Hell" Retraced: The Impact o f Popular
Election on the Southern Appellate Judiciary, 1832-1920, in
Ambivalent Legacy: A Legal History of the South
229, 237-38 (D. Bodenhamer & J. Ely eds. 1984). If
Louisiana chooses to give voters the power to determine
who sits on the state’s bench, the only responsibility the
federal courts have is the responsibility to ensure that its
method of election complies with the federal Constitution
and the Voting Rights Act.
56
C. "Representativeness" Occupies a Critical
Constitutional Position Within the Judicial
System
The court of appeals treated the use of the word
"representatives" in section 2 as if it reflected a
congressional intent to restrict section 2’s coverage solely
to legislative offices. Congress had quite a contrary intent:
the language it chose in 1965 to define the term "vote"
expressly covered the election of every "public office," and
since that time it has repeatedly expanded, and never
contracted, the Act’s scope. See supra Parts I and II.
Moreover, as the undisputed coverage of elections for such
nonlegislative bodies as school boards also shows, Congress
never restricted section 2 to legislative offices.
The court of appeals’ cramped equation of the term
"representatives" with "legislators" completely ignored two
central lines of constitutional cases construing that term in
the context o f state judicial systems. For over a century,
this Court’s equal protection jurisprudence has sought to
include African Americans within the adjudicative process
57
as jurors, and has explained the importance of their
inclusion in terms of "representativeness." Similarly, this
Court’s jurisprudence under the fair cross section
requirement of the Sixth Amendment has relied heavily on
a conception of jurors as "representatives" of the community
to explain why no distinctive group can be excluded from
the venire.
In Smith v. Texas, 311 U.S. 128 (1940), this Court
stated that " [i]t is part of the established tradition in the use
of juries as instruments of public justice that the jury be a
body truly representative of the community." Id. at 130
(emphasis added). The exclusion of African Americans
from participation on juries is "at war with our basic
concepts of democratic society and a representative
government." Id. (emphasis added).
This Court’s jury exclusion cases offer an especially
salient perspective on the question of the
"representativeness" of the state bench. For the past 111
years, the equal protection clause has prohibited systematic
exclusion of African Americans from jury venires and petit
58
juries, and has required that jury venires be "representative"
of the community from which they are drawn, not because
it expects black jurors to favor black litigants, but because
the system’s legitimacy depends on racial inclusiveness.
African Americans who are excluded from juries are denied
"the equal participation in civic life that the Fourteenth
Amendment guarantees." Holland v. Illinois, 110 S.Ct.
803, 812 (1990) (Kennedy, J., concurring). See also, e.g.,
Batson v. Kentucky, 476 U.S. 79, 87 (1986); Carter v. Jury
Commission, 396 U.S. 320, 329-30 (1970); Strauder v. West
Virginia, 100 U.S. 303, 308 (1880). "The harm from
discriminatory jury selection extends beyond that inflicted on
the defendant and the excluded juror to touch the entire
community. . . . [and to] undermine public confidence in
the fairness of our system of justice." Batson, 476 U.S. at
87; see also Vasquez v. Hillery, 474 U.S. 254, 261 (1986)
(deliberate exclusion of African Americans from jury service
is "a stimulant to that race prejudice which is an impediment
to securing to individuals of the race that equal justice which
the law aims to secure to all others") (quoting Strauder, 100
59
U.S. at 308).31
This Court’s applications of the fair cross section
requirement of the Sixth Amendment to jury venires reflects
a similar concern with ensuring the "representativeness" in
the administration of justice. In Taylor v. Louisiana, 419
U.S. 522 (1975), this Court struck down Louisiana’s
automatic exemption of women from jury service on the
ground that it denied defendants, male and female alike, a
representative venire. See also Peters v. Kiff, 407 U.S. 493
(1972) (holding that white defendants could challenge the
systematic exclusion of African Americans from the venire).
The Taylor Court noted that "sharing in the administration
of justice is a phase of civic responsibility." 419 U.S. at
531 (quoting Thiel v. Southern Pacific Co., 328 U.S. 217,
227 (1946) (Frankfurter, J., dissenting). And it noted the
critical, if indeterminate, importance of such participation by
distinct groups: "qualities of human nature and varieties of
3IThe exclusion of a distinctive racial group from the adjudicative
process may have additional ramifications when the "shared enterprise
of appellate decisionmaking," Aetna Life Insurance Co. v. Lavoie, 475
U.S. 813, 831 (1986) (Blackmun, J., concurring in the judgment), is
involved, as it is in this case.
60
human experience, the range of which is unknown and
perhaps unknowable" are lost by the systematic exclusion of
a distinct group from the adjudicative process. Id. at 532 n.
12 (quoting Peters v. Kiff, 407 U.S. at 504 (opinion of
Marshall, J.)).
The values that underlie racial inclusiveness in the jury
context are equally important to judicial elections. The use
of the word "representatives" in section 2 is entirely
consistent with the inclusion of judicial elections.
First, the fact that judges, like jurors, are required to
be impartial does not remove them from their critical
position in the scheme of representative government.
African American jurors, like all other jurors, represent the
conscience of the community, but are not expected to be
partisans for a distinct African American point of view.
African American judges, and judges whose electoral
success depended on the votes of African American voters,
are similarly expected to be simultaneously representative
(in the distinctive way in which judges represent the people)
and impartial.
61
Second, to deny African American citizens the ability
to participate in the process of meting out justice by denying
them the ability to cast effective ballots in judicial elections
is no more acceptable than denying them the ability to
participate in that process by serving as jurors. See, e. g .,
Carter v. Jury Commission, 396 U.S. at 330 ("Whether jury
service be deemed a right, a privilege, or a duty, the state
may no more extend it to some of its citizens and deny it to
others on racial grounds, than it may invidiously
discriminate in the offering and witholding of the elective
franchise.").
Third, the legitimacy of the state judiciary is
undermined when only white citizens have an realistic role
in picking judges or in serving on the bench.32 Of course,
section 2, like this Court’s jury representativeness cases,
“Although the jury exclusion cases that rest on the equal protection
clause of the Fourteenth Amendment require a showing of discriminatory
purpose, the cases that rely on the fair cross section requirement do not
require a showing of discriminatory purpose. See, e.g., Duren v.
Missouri, 439 U.S. 357, 368 n. 26 (1978). In any event, of course,
Congress has made clear that a showing of discriminatory purpose is
wholly unnecessary to a claim under the Voting Rights Act. See, e.g.,
Senate Report at 36. Thus, whether the exclusion of African Americans
and African American-sponsored choices from judicial positions is
intentional or inadvertent is irrelevant to its illegitimacy.
62
makes clear that minorities have no entitlement to
proportional representation. But they must have the "same
opportunity" enjoyed by white citizens to select the officials
who administer justice.
V.
Manageable Standards Exist for Assessing
Claims of Racial Vote Dilution
in Judicial Elections
The court of appeals suggested that, because judicial
elections are not governed by one-person, one-vote, there is
essentially no way of assessing a claim of racial vote
dilution. LULAC, 914 F.2d at 627. To the contrary,
judicial election systems can be analyzed under the well-
established, totality-of-the-circumstances test that governs
other statutory claims of racial vote dilution.
The factors relevant to a section 2 claim involving
judicial elections are similar to the factors relevant to
assessing a section 2 claim in any other case. The facts
described in the Statement of Facts dovetail with those that
would support a challenge to at-large elections or
63
multimember districts for a school board, or county
commission, or state legislature. That is hardly surprising:
the way in which judges are elected in Louisiana is identical
in every formal respect to the way that most other state
officials are elected. Thus, petitioners showed how "social
and historical conditions," including pervasive and profound
racial bloc voting interacted with the multimember form of
the First Supreme Court District to "cause an inequality" in
their opportunity to elect the candidates of their choice.
Gingles, 478 U.S. at 47. If, as this Court has held, "the
‘extent to which minority group members have been elected
to public office in the jurisdiction’ and the ‘extent to which
voting in the elections of the state or political subdivision is
racially polarized," are the linchpins of a claim of dilution
through submergence, id. at 48 n. 15, then petitioners surely
alleged sufficient facts to make out a section 2 violation.
Moreover, this case shows how, even in the absence of
a requirement of equipopulous districting, section 2 plaintiffs
can satisfy the first prong of Gingles: that the minority
group "is sufficiently large and geographically compact to
64
constitute a majority in a single-member district." Id. at 50.
When one-person, one-vote applies, lower courts have
required plaintiffs to present hypothetical districts whose
deviations comply with that standard. See, e.g., Romero v.
City o f Pomona, 665 F. Supp. 853, 864 (C. D. Cal. 1987)
(holding that plaintiffs’ inability to provide alternatives to
existing at-large system that complied with one-person, one-
vote defeated their section 2 claim), aff’d, 883 F.2d 1418
(9th Cir. 1989).
In a situation where one-person, one-vote does not
apply and a state has chosen to use districts with population
deviations larger than would otherwise be permitted, the
appropriate standard for determining whether plaintiffs have
satisfied the first Gingles precondition would appear to be
whether the deviations of the plaintiffs’ hypothetical districts
fall within the level of deviation already countenanced under
the existing plan. Thus, in this case, for example, the
existing single-member Supreme Court Districts in Louisiana
have deviations of +43.33%, +15.33%, -3.10%, -7.40%,
and -31.62%. Pet. App. 12a. Petitioners’ proposed
65
division of the existing First Supreme Court District would
create two districts-one with a -7.2% deviation and the
other with a -9.3% deviation. Pet. App. 13a~14a. Since
this deviation fits well within the level of deviation
Louisiana has already deemed acceptable, it should suffice
to establish the first requirement set out in Gingles.
Nor should remedial concerns limit section 2 ’s
coverage. As is set out more fully in the Brief for
Petitioners in Houston Lawyers’ Ass’n v. Mattox, No. 90-
813, the propriety of single-member districts as a remedy
for dilution in particular judicial election schemes is
irrelevant to the question whether section 2 covers judicial
elections. In any event, surely plaintiffs like the petitioners
in this case should be able to challenge the use of
multimember judicial districts in areas of high African
American population concentrations when single-member
districts are used everywhere else in the state.
66
C o n c l u s io n
For the foregoing reasons, this Court should reverse
the judgment of the court of appeals and remand this case
for further proceedings consistent with its opinion.
Respectfully submitted,
William P. Quigley
901 Convention Center
Blvd.
Fulton Place, Suite 119
New Orleans, LA 70130
(504) 524-0016
R oy R odney , Jr .
McGlinchey, Stafford,
Mintz, Cellini, Lang
643 Magazine Street
New Orleans, LA 70130
(504) 586-1200
Pamela S. Karlan
University of Virginia
School of Law
Charlottesville, VA 22901
(804) 924-7810
* Counsel o f Record
Julius LeVonne Chambers
^Charles Stephen Ralston
Dayna L. Cunningham
SherrilynA. 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. Lani Guinier
University of Pennsylvania
School of Law
3400 Chestnut Street
Philadelphia, PA 19104
(215) 898-7032
Attorneys fo r Petitioners