Correspondence from Rodney to Quigley, Wilson, and Karlan; Motion for an Injunction Pending Appeal or, in the Alternative, for Issuance of the Mandate; Memorandum in Support of Plaintiffs-Appellants' Motion for an Injunction Pending Appeal, Or, In the Alternative, For Issuance of the Mandate

    , 

MdGLINCHEY, STAFFORD, MINTZ, CELLINI 8c LANG, PC 

GRAHAM STAFFORD (1940-1987) 

DERMOT S. McGLINCHEYM 
SAMUEL LANG 
DONALD R. MINTZ ,. 
DANDO B. CELLINIm 
D. ANDREW LANG 
COLVIN G. NORWOOD, JR. M 
DAVID S. WILLENZIK 111 
FRANK VOELKER, JR. 
FREDERICK R. CAMPBELL m 
B. FRANKLIN MARTIN, III m 
E. FREDRICK PREIS, JR. 
HENRI WOLBRETTE, III Ill 
LEOPOLD Z. SHER 
WILLIAM V. DALFERES, JR. Ill 
MICHAEL J. MAGINNIS III 
MICHAEL T. PULASKI. 
PETER L. HILBERT, JR. (I) 
CONSTANCE CHARLES WILLEMS 
ERNEST P. GIEGER, JR.. 
PAUL M. BATIZAm 
MICHAEL R. SISTRUNK. 
THOMAS P. ANZELMOm 
STEVEN I. KLEIN (21 
SANDRA MILLS FEINGERTS 121 
BENNET S. KOREN 
RALPH J. ZATZKIS 
JAMES M. FANTACI 
GARY E. MERINGER 
KENNETH H. LABORDE 
MAUREEN O'CONNOR SULLIVAN 
SUSAN WHITTINGTON LEIDNER 121 
KATHLEEN A. MANNING 

J. FORREST HINTON 
KENNETH A. WEISS.) 
JOHN GREGORY ODOM 
JAMES D. MORGAN 
MICHAEL S. MITCHELL 
ELWOOD F. CAHILL, JR. 
MICHAEL S. GUILLORY 
LANCE S. OSTENDCYRF 
JAMES C. CRIGLER, JR. 
SIDNEY J. HARDY 
MICHAEL M. NOONAN 
RICHARD P. RICHTER 
DAVID ISRAEL 
MARIE A. MOORE 
VICTORIA KNIGHT McHENRY 
RUDY J. CERONE 
DEBRA FISCHMAN COTTRELL 
ANTHONY ROLLO 
EVE B. MASINTER 
TIMOTHY P. HURLEY 
GENE W. LAFITTE, JR. 
STEPHEN W. RIDER 
ROY J. RODNEY, JR. 
ERIC SHUMAN 
ARTHUR H. LEITH 
DAVID L. BARNETT 
STEPHEN P. BEISER 
LAURA HOBSON BROWN 
STEPHANIE M. LAWRENCE 
LISA J. MILEY 
CHRISTOPHER J. AUBERT 
KATHLEEN K. CHARVET 
PATRICIA A. CARTEAUX 
RICHARD B. EHRET 

MARK M. GLOVEN 
MAUREEN L. HOGEL 
ALEXANDER M. McINTYRE, JR. 
RICHARD M. MOVED 
LAUREN A. WELCH 
CARL A. BUTLER 
SHARON L. GROSS 
THOMAS P. McALISTER 
TRUDY RODNEY BENNETTE 
SUSAN T. BROUSSARD 
CYNTHIA M. CANADA 
ROBERT W. MAXWELL 
KRISTINA B. WEBB 
FABIO M. FAGG!. 
PAUL A. OBERER (3, 
PATRICIA L. MANSON 
CHRISTOPHER C. JOHNSTON 
DAVID P. BUEHLER 
MICHAEL J. OE BLANC, JR. 
BROOKE DUNCAN III 
KEITH W. McDANIEL 
CHARLOTTE G. BORDENAVE 
GERARD J. SONNIER 
ELISE M. BEAUCHAMP 
MARJORIE R. ESMAN 
N. VICTORIA HOLLADAY 
ANITA T. LECHNER 
LAWRENCE B. MANDALA 
SHARON D. SMITH 
ROY C. BEARD 
JOE GIARRUSSO, JR. 
JONATHAN YOUNG 

MLAW CORPORATION OBOARD CERTIFIED TAX ATTORNEY (3)NOT ADMITTED IN LOUISIANA 

Mr. William P. Quigley 
901 Convention Center Blvd. 
Fulton Place 
Suite 119 
New Orleans, LA 70130 

Mr. Ron Wilson 
Richards Bldg., Suite 310 
837 Gravier Street 
New Orleans, LA 70112 

May 9, 1988 

643 MAGAZINE STREET 

NEW ORLEANS, LA. 70130-3477 

MAILING ADDRESS: 

POST OFFICE BOX 6 0 643 
NEW ORLEANS, LA. 70160-0643 

(5 04) 586-1200 

FAX 

(504) 596-2800 

TELEX 

584327 

CABLE 

MACSTAM 

LAKE PROVIDENCE, LA, OFFICE: 

405 MORGAN STREET 

LAKE PROVIDENCE, LA. 71254 
13181 559-1200 

FAX (3181 559-0609 

WRITER'S DIRECT DIAL NUMBER: 

Ms. Pamela S. Karlan 
99 Hudson Street, 16th Floor 
New York, New York 10013 

RE: Ronald Chisom, et al v. 
Edwin Edwards, et al 
United States Court of Appeals 
for the Fifth Circuit 
No. 87-3463 
Our Ref.: 9931-54-7 

' Dear Counsel: 

Enclosed is a copy of the Motion for an Injunction 
Pending Appeal or, in the alternative, for Issuance of the 
Mandate which we have this day filed into the record of the 
captioned matter. 

RJR,Jr./md 
Enclosure 



1110, 
M IY1 tGLINCHEY, STAFFORD, INTZ, CELLINI & LANG, PC 

Mr. William P. Quigley 
Mr. Ron Wilson 
Ms. Pamela S. Karlan 
May 9, 1988 
Page 2 

CC: Mr. William J. Guste, Jr. (w/encl.) 
Mr. M. Truman Woodward, Jr. (w/encl.) 
Mr. Blake G. Arata (w/encl.) 
Mr. A. R. Christovich (w/encl.) 
Mr. Moise W. Dennery (w/encl.) 
Mr. Robert G. Pugh (w/encl.) 
Mr. Mark Gross (w/encl.) 
Mr. Paul D. Kamener (w/encl.) 
Mr. Michael H. Rubin (w/encl.) 
Mr. John L. Maxey II (w/encl.) 



• 

IN THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH 'CIRCUIT 

No. 87-3463 

RONALD CHISOM, et al., 

Plaintiffs-Appellants, 
V . 

EDWIN EDWARDS, et al., 

Defendants-Appellees. 

MOTION FOR AN INJUNCTION PENDING APPEAL OR, IN THE 
ALTERNATIVE. FOR ISSUANCE OF THE MANDATE  

Pursuant to Fed. R. App. P. 8(a) and 41(a), appellants ask 

that this Court issue an injunction restraining defendants from 

conducting any elections to fill positions on the Louisiana 

Supreme Court from the First Supreme Court Judicial District 

pending the disposition of appellants' challenge to the current 

use of a multi-member election district. Appellants have 

challenged the present election scheme 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. 

They seek a preliminary injunction on only their section 2 

claim. In the alternative, appellants request that this Court 

issue its mandate, despite the pendency of a petition for 

rehearing and rehearing en banc. This would permit appellants to 



move for a preliminary injunction and summary judgment in the 

district court. 

The grounds for this motion are set out in the attached 

affidavits of Judge Israel M. Augustine, Jr., Judge Revius 0. 

Ortique, Jr., Sheriff Paul R. Valteau, Jr., Dr. Richard L. 

Engstrom, and Silas Lee, III, and the accompanying memorandum of 

law. 

Respectfully submitted, 

,,1616A LcAA-v 
WILLIAM P. QUIGLEY 

901 Convention Center Blvd. 
Fulton Place 
Suite 119 
New Orleans, LA 70130 
(504) 524-0016 

ROY RODNEY, JR. 
643 Magazine Street 
New Orleans, LA 70130 
(504) 586-1200 

Dated: May 1988 

2 

JULIUS L. CHAMBERS 
CHARLES STEPHEN RALSTON 
C. LANI GUINIER 
PAMELA S. KARLAN 

99 Hudson Street, 16th Floor 
New York, New York 10013 
(212) 219-1900 

RON WILSON 
Richards Building, Suite 310 
837 Gravier Street 
New Orleans, LA 70112 
(504) 525-4361 

Counsel for Plaintiffs-
Appellants 



CERTIFICATE OF SERVICE 

I, Roy Rodney, Jr., hereby certify that on May 1988, I 

served copies of the foregoing motion upon the attorneys listed 

below via United States mail, first class, postage prepaid: 

William J. Guste, Jr., Esq. 
Atty. General 
La. Dept. of Justice 
234 Loyola Ave., Suite 700 
New Orleans, LA 70112-2096 

M. Truman Woodward, Jr., Esq. 
1100 Whitney Building 
New Orleans, LA 70130 

Blake G. Arata, Esq. 
210 St. Charles Avenue 
Suite 4000 
New Orleans, LA 70170 

A. R. Christovich, Esq. 
1900 American Bank Building 
New Orleans, LA 70130 

Moise W. Dennery, Esq. 
21st Floor Pan American Life Center 
601 Poydras Street 
New Orleans, LA 70130 

Robert G. Pugh 
330 Marshall Street, Suite 1200 
Shreveport, LA 71101 

Mark Gross, Esq. 
Civil Rights Division 
Department of Justice 
Washington, D.C. 20035 

Paul D. Kamener, Esq. 
Washington Legal Foundation 
1705 N Street, N.W. 
Washington, D.C. 20036 



S 
Michael H. Rubin, Esq. 
Rubin, Curry, Colvin & Joseph 
Suite 1400 
One American Place 
Baton Rouge, LA 70825 

John L. Maxey II 
P.O. Box 22666 
Jackson, MS 39205 

Counsel for Plaintiffs-
Appellants 

4 



IN-THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

No. 87-3463 

RONALD CHISOM, et al., 

Plaintiffs-Appellants, 
V.. 

EDWIN EDWARDS, et al., 

Defendants-Appellees. 

MEMORANDUM IN SUPPORT OF PLAINTIFFS-APPELLANTS' 
MOTION FOR AN INJUNCTION PENDING APPEAL OR, IN THE 

ALTERNATIVE. FOR ISSUANCE OF THE MANDATE  

Appellants Ronald Chisom et al., black registered voters in 

Orleans Parish, Louisiana, have moved for an injunction pending 

appeal restraining defendants (hereafter "the State") from 

conducting any elections to fill positions on the Louisiana 

Supreme Court from the First Supreme Court Judicial District 

until the disposition of appellants' challenge to the current use 

of a multi-member election district. Appellants have challenged 

the present election scheme under both section 2 of the Voting 

Rights Act of 1965 as amended, 42 U.S.C. § 1973 ("section 2"), 

and the Fourteenth and Fifteenth Amendments to the Constitution. 

They seek an injunction on only their section 2 claim. In the 

alternative, appellants request that this Court issue its 

mandate, despite the pendency of a petition for rehearing and 

rehearing en banc. This would permit appellants to move for a 

preliminary injunction and summary judgment in the district 

court. 



The Procedural History of this Case 

The Louisiana Supreme Court consists of seven judges. Five 

of these justices are elected from single-member districts. The 

other two are elected from the only multi-member district--the 

First Supreme Court District--which contains Orleans, St. 

Bernard, Plaquemines, and Jefferson Parishes. Justices serve 

ten-year terms. One of the two justiceships allocated to the 

First Supreme Court District is scheduled to be filled by 

election in the fall of 1988; the other seat is to be filled by 

election in the fall of 1990. 

On September 19, 1986, two years before the first scheduled 

election, appellants filed a complaint, in the United States 

District Court for the Eastern District of Louisiana, challenging 

the use of an election scheme that submerged Orleans Parish's 

predominantly black electorate in a majority-white multi-member 

district. They challenged the present system under both the 

"results" prong of section 2 and under the intent standard of the 

Fourteenth and Fifteenth Amendments. 

The State moved for, and received, an extension of time 

within which to answer the complaint. On March 18, 1987, it 

moved to dismiss the complaint pursuant to Fed. R. Civ. P. 

12(b)(6), on the grounds that section 2 did not apply to the 

election of judges. 

The district court held oral argument on the State's motion 

to dismiss on April 15, 1987. In an opinion and order dated May 

2 



1, 1987, and subsequently amended on July 10, 1987--after 

appellants' brief on the merits had been filed in this Court--the 

district court granted the motion, holding that section 2 did not 

apply to judicial elections and that plaintiffs had failed to 

plead discriminatory intent with sufficient specificity on their 

constitutional claims. 

On July 9, 1987, when appellants filed their opening brief 

on appeal, they had also moved for an expedited hearing in this 

Court, due to the pendency of the 1988 elections. That motion 

was denied. The State moved for, and received, two extensions of 

time within which to file its brief, which was not filed until 

September 21, 1987. Subsequently, the State unsuccessfully 

sought, after the case was scheduled for oral argument, to 

postpone the argument for an additional month. 

On December 10, 1988, a panel of this Court--consisting of 

Judge Johnson, Judge Higginbotham, and Senior Judge Brown--heard 

oral argument. On February 29, 1988, it issued a unanimous 

opinion which held both that section 2 applies to judicial 

elections and that the complaint adequately pleaded its 

constitutional allegations. Chisom V. Edwards, 831 F.2d 1056 

(5th Cir. 1988). 

The State subsequently moved ex parte for extension of time 

within which to file a petition for panel reconsideration and a 

suggestion for rehearing en banc. On March 14, 1988, the Clerk's 

Office granted that motion to and including April 13, 1988. On 

April 13, 1988, the State filed its petition and suggestion. 

3 



I. Why This Court Should Enjoin the Upcom'eg Elections Now 

• As the chronology just laid out shows, appellants sought 

relief in the district court long before the scheduled election. 

Had the State not sought extensions of time at virtually every 

turn, the case might well be over by now, and the issue of 

injunctive relief pending appeal might never have arisen. 

One of the two seats on Louisiana Supreme Court which is 

elected by the voters in the First Supreme Court District is to 

be filled by an election now scheduled for October 1, 1988. The 

filing dates for candidacy are July 27-29, 1988. 

As the affidavits of Judges Augustine and Ortique and of 

Sheriff Valteau and Mr. Lee indicate, a candidate considering a 

judicial race needs substantial lead time prior to the election 

to determine whether he or she can attract the necessary 

financial and political support to justify running and then to 

obtain that support. As the affidavits and Section II.A.1, 

infra, show, no black candidate is likely to run for the seat to 

be filled as long as the current district configuration is used. 

But even if appellants were to prevail on their claims and a new 

district were to be drawn prior to the filing date or election 

day, experienced candidates and political observers firmly 

believe that the time remaining is too short to permit a black 

candidate to mount a serious campaign. 

II. This Court Should Grant an Injunction Pending Appeal 

4 



The test for whether this Court should issue an injunction 

focuses on four issues: (1) whether the plaintiff is likely to 

prevail on the merits; (2) whether there is a substantial threat 

of irreparable injury; (3) whether the threatened injury 

outweighs the• threatened harm an injunction might do to the 

defendant; and (4) whether granting an injunction will serve the 

public interest. Canal Authority v. Callaway, 489 F.2d 567, 572 

(5th Cir. 1974). Consideration of each of these issues militates 

in favor of granting an injunction. 

A. Appellants Are Likely To Succeed on the Merits  

In its unanimous opinion holding that section 2 applies to 

judicial elections, this Court held that "section 2, by its 

express terms, extends to state judicial elections." Chisom v.  

Edwards, 839 F.2d at 1060: 

Minorities may not be prevented from using section 2 in 
their efforts to combat racial discrimination in the 
election of state judges; a contrary result would 
prohibit minorities from achieving an effective voice 
in choosing those individuals society elects to 
administer and interpret the laws. The right to vote, 
the right to an effective voice in our society cannot 
be impaired on the basis of race in any instance 
wherein the will of the majority is expressed by 
popular vote. 

Id. at 1065. 

One of the primary sources on which this Court relied in 

reaching its conclusion that section 2 covers judicial elections 

was the legislative history of the 1982 amendments to section 2. 

See 839 F.2d at 1061-63. 

The purpose of those 1982 amendments was to eliminate the 

5 



requirement that plaintiffs show that challenged voting practices 

are the product of purposeful discrimination. Thornburg v.  

Gingles, 478 U.S. , 92 L.Ed.2d 25, 37, 42 (1986). The Senate 

Report accompanying the 1982 amendments, which Gingles  

characterized as an "authoritative source" for interpreting 

section 2, Thornburg V. Gingles, 92 L.Ed.2d at 42 n. 7, lists 

nine "[t]ypical factors" that can serve to show a violation of 

section 2's "results test." S. Rep. No. 97-417, p. 28 (1982) 

("Senate Report") 1 

1 These factors are: 
"1. the extent of any history of official 

discrimination in the state or political subdivision 
that touched the right of 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; 

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. 

[8.] whether there is a significant lack of 
responsiveness on the part of elected officials to the 
particularized needs of the members of the minority 
group. 

6 



Gingles represents the Supreme Court's "gloss" on these 

Senate factors. Carrollton Branch of NAACP V. Stallings, 829 

F.2d 1547, 1555 (11th Cir. 1987). In the context of at-large 

elections, "the most important Senate Report factors . . . are 

the 'extent to which members of the minority group 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.'" Thornburg v. Gingles, 92 

L.Ed.2d at 45, n. 15. 2 The other factors are "supportive of, but 

not essential to, a minority voter's claim." Id, 

Because this case was before this Court on appeal from an 

order of dismissal under Fed. R. Civ. P. 12(b)(6), defendants 

have not yet answered the allegations of plaintiffs' complaint, 

which this Court held to have stated a cause of action under both 

section 2 and the Constitution. Nor, of course, have any 

[9.] whether the policy underlying the state or 
political subdivision's use of such voting 
qualification, prerequisite to voting, or standard, 
practice or procedure is tenuous." 

S. Rep. No. 97-417, pp. 28-29 (1982). "[T]here is no requirement 
that any particular number of factors be proved, or that a 
majority of them point one way or the other." Id. at 29. 

2 This assessment led the Court to distill from the 
Senate factors a three-part test for challenges to at-large 
elections that seek a single-member district remedy: first, the 
minority group must show that it is sufficiently large and 
geographically compact to constitute a majority in a single-
member district; second, it must show that it is politically 
cohesive, that is, that its members tend to support the same 
candidates; third, it must show that the white majority usually 
votes sufficiently as a bloc to result in the defeat of the 
minority group's preferred candidates. Thornburg V. Gingles, 92 
L.Ed.2d at 46. 

7 



discovery or pretrial proceedings taken place. Nonetheless, 

sufficient undisputed evidence already exists, much of which is 

subject to judicial notice under Fed. R. Evid. 201, to show that 

plaintiffs are likely to prevail on the merits of their section 2 

claim. 

1. The Essential Gingles Factors 

With regard to the first of these factors, the evidence is 

undisputed and, as this Court has already noted, "particularly 

significant," Chisom v. Edwards, 839 F.2d at 1058: "[N]o black 

person has ever been elected to the Louisiana Supreme Court, 

either from the First Supreme Court District or from any one of 

the other five judicial districts." Id.  

Indeed, no black candidate has run. The affidavits of Judge 

Revius 0. Ortique, Jr., Judge Israel M. Augustine, Jr., Sheriff 

Paul R. Valteau, Jr., and Silas Lee explain why: the current 

configuration of the First Supreme Court District makes it 

impossible for a black candidate to win, and thus deters black 

candidates from running. In cases such as this one, "the lack of 

black candidates is a likely result of a racially discriminatory 

system." McMillan V. Escambia County, 748 F.2d 1037, 1045 (11th 

Cir. 1984). See. e.g., Citizens for a Better Gretna v. City of  

Gretna, 636 F. Supp. 1113 1119 (E.D. La. 1986) ("axiomatic" that 

when minorities are face with dilutive electoral structures 

"candidacy rates tend to drop'") (quoting Minority Vote Dilution 

15 (C. Davidson ed. 1984)), aff'd, 834 F.2d 496 (5th Cir. 1987); 

8 



Hendrix V. McKinney, 460 F. Supp. 626, 631-32 (M.D. Ala. 1978), 

(fact of racial bloc voting, when combined with at-large 

elections for county commission "undoubtedly discourages black 

candidates because they face the certain prospect of defeat"). 

With regard to the second factor--the presence of racially 

polarized voting--the evidence is also clear. Maior V. Treen, 

574 F. Supp. 325 (E. D. La. 1983) (three-judge court), struck down 

a congressional districting scheme which diluted the strength of 

Orleans Parish's predominantly black electorate by splitting that 

electorate in half and submerging the two parts in majority-

white suburban congressional districts. The combined area of the 

two districts constituted essentially the First Supreme Court 

District being challenged in this case. See 574 F. Supp. at 328. 

The Major Court found "a substantial degree of racial 

polarization exhibited in the voting patterns of Orleans Parish." 

Id. at 337. It also held that voting preferences in the 

"adjacent suburban parishes, whose recently enhanced populations 

can be partially ascribed to the exodus from New Orleans of white 

families seeking to avoid court-ordered desegregation of the 

city's public schools" made those parishes even less receptive to 

black candidates. Id. at 339. 

Major's finding of legally significant racial polarization 

rested in significant part on the existence of racial bloc voting 

in local judicial elections. The court expressly relied on a 

regression analysis performed by plaintiffs' expert, Dr. Gordon 

Henderson, which studied the results of thirty-nine elections in 

9 



Orleans Parish during the period 1976 to 1982 in which black 

candidates ran. _age 574 F. Supp. at 337-38. Thirteen, or one-

third, of these elections involved judicial positions. 

Racial bloc voting in judicial elections for positions on 

lower courts within the First Supreme Court District continues to 

this day. Dr. Richard L. Engstrom, a nationally recognized 

expert in the quantitative analysis of racial voting patterns, 

see Gingles, 92 L.Ed.2d at 48 n. 20, 50 & 60 (citing Dr. 

Engstrom's scholarly writings with approval), was asked by the 

plaintiffs in Clark V. Edwards, No. 86-435-A (M.D. La.), a case 

challenging the method of electing Louisiana district court 

judges, to analyze judicial election contests involving black and 

white candidates during the period 1978 to 1987. Dr. Engstrom 

used the analytic techniques--bivariate ecological regression and 

extreme case analysis--approved by the Supreme Court in Gingles, 

92 L.Ed.2d at 48. As part of his analysis, Dr. Engstrom analyzed 

election returns from the geographic area relevant to this case 

involving sixteen black candidates in fourteen separate contests. 

In thirteen of fourteen races, a black candidate was the 

preferred choice of black voters. In no election was a black 

candidate the choice of white voters. In the thirteen contests 

in which the black community supported a black candidate, an 

average of 78.25 percent of the black electorate voted for the 

preferred black candidate, 3 while only 14.26 percent of white 

3 Two of these races involved more than one black 
candidate. In one (the Feb. 2, 1982 election for Orleans-
Criminal I), Julien was the plurality victor among black voters, 

10 



voters voted for the preferred black candidate. 

Finally, the Supreme Court has noted that plaintiffs in 

cases challenging multi-member districts and seeking single-

member districts as a remedy must show that the minority group of 

which they are members "is sufficiently large and geographically 

compact . . . [that it could] constitute a majority in a single-

member district." Gingles, 92 L.Ed.2d at 46. Clearly, the black 

population of Orleans Parish satisfies this requirement. Over 

half the First Supreme Court District's population lives in 

Orleans Parish, and, as of March 31, 1988, slightly over 52 

percent of the registered voters in Orleans Parish are black. 

See Affidavit of Silas Lee, III. Judicial districts are not 

required to comply with the requirement of one-person, one-vote. 

See Chisom, 839 F.2d at 1060. Thus, there is no need--

particularly in assessing appellants' likelihood of success on 

the merits, as opposed to actually imposing a remedial plan--for 

this Court to address the precise contours of a proper division 

of the present First Supreme Court District. 

2. The Supportive Senate Factors 

This Court may take judicial notice of findings by other 

courts with regard to several of the other, historical factors 

and 72.3 percent of black voters preferred one of the black 
candidates. Julien subsequently received over 88 percent of the 
black vote in the runoff. In the other (the Feb. 1, 1986 
election for Orleans-Civil F), Magee was the choice of 75.3 
percent of black voters, and 97.1 percent of black voters 
preferred one of the black candidates. 

11 



mentioned in the Senate Report. Fed. R. Evid. 201; Age United 

Steelworkers v. Weber, 443 U.S. 193, 198 n. 1 (1979) (findings of 

discrimination in craft unions were so numerous as to be a proper 

subject for judicial notice). 

With regard to the first of the Senate factors--a history of 

official discrimination touching upon the right to vote--

Louisiana's actions cannot seriously be disputed. As Judge 

Politz, writing for the three-judge court in Major v. Treen 

noted, from 1898 to 1965, the State used a variety of stratagems, 

including educational and property requirements for voting, a 

"grandfather" clause, an "understanding" clause, poll taxes, 

discriminatory purging procedures, an all-white primary, a ban on 

single-shot voting, and a majority-vote requirement to 

"suppres(s) black political involvement . . . ." 574 F. Supp. at 

340; see also. e.g., Citizens for a Better Gretna, 636 F. Supp. 

at 1116-17. These two district courts also discussed the effect 

of the fifth Senate factor: discrimination in education, 

employment and health that has hindered blacks political 

participation. See id. at 1117; Major V. Treen, 574 F. Supp. at 

341. 

Finally, with regard to the third Senate factor--the use of 

voting practices or procedures that may enhance discrimination 

against black voters--we note that all three practices expressly 

identified by the Senate Report are present in this case. First, 

the First Supreme Court District is an "unusually large election 

distric(t)," Senate Report at 29. It is far larger in population 

12 



than any other Supreme Court District. Moreover, it is the only  

multi-member district, and thus departs from the standard Supreme 

Court District, which elects a single justice. Second, Louisiana 

has a majority-vote requirement for judicial elections. See  

Senate Report at 29. This means that even if the majority white 

electorate were to split its votes among several candidates, a 

black candidate would not have the opportunity to win by a 

plurality. According to Major, this requirement "inhibits 

political participation by black candidates and voters and 

"substantially diminishes the opportunity for black voters to 

elect the candidate of their choice. 574 F. Supp. at 339. 

Third, elections from the First Supreme Court District are 

subject to the functional equivalent of an "anti-single shot" 

provision, Senate Report at 29. Single-shot voting requires 

multi-position races. See City of Rome v. United States, 446 

U.S. 156, 184 (1980). But because the terms of the two justices 

from the First Supreme Court District are staggered, only one 

seat is filled at any election. Thus "the opportunity for 

single-shot voting will never arise." ;d. at 185 n. 21 (internal 

quotation marks omitted; quoting U.S. Comm'n on Civil Rights, The 

Voting Rights Act: Ten Years After 208 (1975)); see also. e.g., 

H.R. Rep. No. 97-227, p. 18 (1982) (condemning staggered terms). 

Thus, appellants have demonstrated that it is likely that, 

on remand, they will prevail, at a minimum, on their section 2 

results claim. Indeed, that claim is appropriate for summary 

13 



judgment. 

B. There Is a Substantial Threat of Irreparable Injury to 
Appellants If The Upcoming Election Is Not Enjoined  

This Court has held that an injury is irreparable "if it 

cannot be undone through monetary remedies." Deerfield Medical  

Center v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 

1981). The right at issue in this case is entirely nonpecuniary, 

and no amount of financial compensation can redress its 

deprivation. 

The right to vote is the "fundamental political right, 

because preservative of all rights." Yick Wo. V. Hopkins, 118 

U.S. 356, 370 (1886). That right "can be denied by a debasement 

or dilution of the weight of a citizen's vote just as effectively 

as by wholly prohibiting the free exercise of the franchise." 

Reynolds v. Sims, 377 U.S. 533, 555 (1964). As this Court has 

already held in this case, "[t]he right to vote, the right to an 

effective voice in our society cannot be impaired on the basis of 

race in any instance wherein the will of the majority is 

expressed by popular vote." 839 F.2d at 1065 (emphasis added). 

The courts have long recognized that conducting elections 

under systems that impermissibly dilute the voting strength of an 

identifiable group works an irreparable injury on both that group 

and the entire fabric of representative government. In Reynolds  

v. Sims, the Supreme Court noted that "it would be the unusual 

case in which a court would be justified in not taking 

appropriate action to insure that no further elections are 

14 



conducted under the invalid Plan. 377 U.S. at 585 (emphasis 

added). See, e.g., Watson v. Commissioners Court of Harrison 

County, 616 F.2d 105, 107 (5th Cir. 1980) (per curiam) (ordering 

district court to enjoin elections because failure to do so would 

subject county residents to four more years of government by an 

improperly elected body); Harris v. Graddick, 593 F. Supp. 128 

(M.D. Ala. 1984) (impediment to right to vote "would by its 

nature be an irreparable injury"); Cook v. Luckett, 575 F. Supp. 

479, 484 (S.D. Miss. 1983) (noting the "irreparable injury 

inherent in perpetuating voter dilution"); cf. Elrod v. Burns, 

427 U.S. 347, 373 (1976) (denial of rights under the First 

Amendment "unquestionably constitutes irreparable injury"); 

Middleton-Keirn V. Stone, 655 F.2d 609, 611 (5th Cir. 1981) 

(irreparable injury to both black workers and Nation's labor 

force as a whole is presumed in Title VII cases). 

There is a substantial threat in this case of such a 

dilution of black voting strength in the October 1, 1988, 

election. First, the voting strength of Orleans Parish's 

predominantly black electorate will be subsumed within the 

larger, majority-white suburban electorate. See supra Section 

II.A.1. 

Second, as the affidavits of Judges Augustine and Ortique 

show, the present election scheme will deter candidates who rely 

primarily on the support of black voters from running. And those 

candidates will be unable to obtain the financial backing 

necessary for a credible candidacy as long as the present 

15 



district configuration continues. Thus, black voters will not 

even have an equal opportunity to vote for candidates of their 

choice, let alone the equal opportunity to elect such candidates 

promised by section 2. 

C. The State Will Suffer No Injury If the Upcoming 
Election Is Postponed  

The State will not be adversely affected in any way if the 

1988 election is postponed until the merits of appellants' claims 

are determined. Such a postponement would continue the terms of 

the two sitting justices from the First Supreme Court District. 

Cf. Kirksey V. Allain, Civ. Act. No. J-85-960(B) (S.D. Miss. May 

28, 1986) (enjoining elections of state court judges pending 

outcome of section 2 suit); 4 Kirksey V. Allain, 635 F. Supp. 347 

(S.D. Miss. 1986) (three-judge court) (enjoining judicial 

elections for unprecleared jurisdictions). Thus, the Louisiana 

Supreme Court will be able to continue its work unaffected. 

The only potential injury defendants might suffer is the 

expense of conducting a special election, should the district 

court ultimately conclude that such an election is required. See 

Cook v. Luckett, 575 F. •Supp. 479, 485 (S.D. Miss. 1983). It is 

entirely possible, however, that any future election to fill 

seats on the Supreme Court can be coordinated with regularly 

4 Subsequently, in Kartin v. Allain, 658 F. Supp. 1183 
(S.D. Miss. 1987), the district court found that Mississippi's 
use of multi-member, numbered post judicial districts in certain 
parts of the state violated section 2. At the present time, 
remedy proceedings are underway, and judicial elections in the 
affected districts have been postponed for the past two years. 

16 



scheduled elections, and such expense avoided entirely. See.  

e.g., Smith V. Paris, 386 F.2d 979 (5th Cir. 1967) (per curiam) 

(shortening terms of officials elected under discriminatory at-

large scheme so that new elections would coincide with next 

regularly scheduled elections). 

D. The Public Interest Would Best Be Served By Enjoining 
the Upcoming Election  

Because appellants sought relief over two years before the 

scheduled election, if this Court denies an injunction pending 

appeal and appellants ultimately prevail on the merits, the 

results of the upcoming election will have to be set aside. See,  

s.„2„.., Hamer v. Campbell, supra. A justice elected in 1988 

pursuant to an election system that dilute black political power 

cannot be permitted to serve for 10 years, until 1998 when the 

term would normally expire. See, e.g., Watson v. Commissioners 

Court, 616 F.2d at 107 (service for another four years too long); 

Smith v. Paris, 386 F.2d at 980 (ordering special election at 

next regularly scheduled election, in two years); Hamer v.  

Campbell, 358 F.2d at 222 (service for another four years too 

long). And the public interest in having a judiciary free from 

racial discrimination in its selection is obviously of the 

highest importance, as this Court's decision in Chisom 

recognized. 

In light of appellants' likely success on the merits, the 

public interest would best be served in not conducting an 

election in 1988. First, such an election would likely have to 

17 



be repeated in two years. This possibility might dampen interest 

both in seeking office and in voting and might decrease financial 

support for candidates. Second, given the probable illegitimacy 

of the present system, it would be unfair for a candidate to run 

under the present scheme and thereby have an unfair advantage as 

an incumbent only two years later. gg,_ Major v. Treen, 574 F. 

Supp. at 355. Third, the qualities of deliberation and non-

politicization that the decade-long term of office now serves 

might be undermined by creating, in essence, a two-year term. 

No public interest could be more important than the 

eradication of racial discrimination that impairs the right to 

vote. Thus, appellants have satisfied all four prongs of this 

Court's test for a preliminary injunction and this Court should 

therefore order the postponement of the upcoming elections. 

III. In the Alternative, This Court Should Issue Its Mandate 

If this Court is not inclined to grant an injunction pending 

appeal itself, it should issue the mandate, currently stayed by 

•the State's petitions for rehearing and rehearing en banc. The 

issuance of the mandate would return the case to the district 

court, where appellants could renew their motion for a 

preliminary injunction, seek expedited discovery, and soon move 

for summary judgment. 

Otherwise, it is abundantly clear that the merits of this 

case will not be determined in time for the October 1, 1988, 

election, let alone far enough before the election for potential 

18 



candidates who enjoy the support of the black community to meet 

filing requirements, raise sufficient funds, and run serious 

campaigns. Even if this Court were to rule immediately on the 

State's pending petitions, the State might still petition for 

certiorari. The mandate will automatically be stayed for an 

additional 30 days to give the State an opportunity to prepare 

its petition, see Fed. R. App. P. 41, and, even if the State 

decides it needs more time to prepare its petition, it will be 

able, by ex parte motion, to seek further stays under this 

Court's Rule 10. 

In any event, if the State petitions for certiorari, the, 

petition is unlikely to be filed before the beginning of June. 

That filing will, of course, further stay issuance of the 

mandate. Given the manner in which the Supreme Court schedules 

petitions for consideration at Conference, it is unlikely, even 

if appellants were to waive their right to respond or to file an 

opposition long before their 30 days to reply had run, that the 

case could be considered before the Supreme Court recesses for 

the summer. Thus, the petition for certiorari is unlikely to be 

disposed of before the first Monday in October, after the  

scheduled election. 

Conclusion 

Two years ago, appellants filed a lawsuit challenging the 

method of electing justices from the First Supreme Court District 

in the hope that by 1988 a fair election system would be in 

19 



place. Despite their diligent efforts to prosecute their suit, 

they now face the threat that once again their voices will not be 

heard equally in the election process. Accordingly, they ask 

this Court either to enjoin the present, illegitimate system or 

to provide them with an opportunity to seek that relief from the 

district court. 

Respectfully submitted, 

17awsigS165)6& 
WILLIAM P. QUIGLEY 

901 Convention Center Blvd. 
Fulton Place 
Suite 901 
New Orleans, LA 70130 
(504) 524-0016 

20 

JULIUS L. CHAMBERS 
CHARLES STEPHEN RALSTON 
C. LANI GUINIER 
PAMELA S. KARLAN 

99 Hudson Street, 16th Floor 
New York, New York 10013 
(212) 219-1900 



ROY RODNEY, JR. 
643 Magazine Street 
New Orleans, LA 70130 
(504) 586-1200 

Dated: May J, 1988 

RON WILSON 
Richards Building, Suite 310 
837 Gravier Street 
New Orleans, LA 70112 
(504) 525-4361 

Counsel for Plaintiffs-
Appellants 



CERTIFICATE OF sERvIcg 

I, Roy Rodney, Jr., hereby certify that on May 1988, I 

served copies of the foregoing memorandum upon the attorneys 

listed below via United States mail, first class, postage 

prepaid: 

William J. Guste, Jr., Esq. 
Atty. General 

'La. Dept. of Justice 
234 Loyola Ave., Suite 700 
New Orleans, LA 70112-2096 

M. Truman Woodward, Jr., Esq. 
1100 Whitney Building 
New Orleans, LA 70130 

Blake G. Arata, Esq. 
210 St. Charles Avenue 
Suite 4000 
New Orleans, LA 70170 

A. R. Christovich, Esq. 
1900 American Bank Building 
New Orleans, LA 70130 

Moise W. Dennery, Esq. 
21st Floor Pan American Life Center 
601 Poydras Street 
New Orleans, LA 70130 

Robert G. Pugh 
330 Marshall Street, Suite 1200 
Shreveport, LA 71101 

Mark Gross, Esq. 
Civil Rights Division 
Department of Justice 
Washington, D.C. 20035 

Paul D. Kamener, Esq. 
Washington Legal Foundation 
1705 N Street, N.W. 
Washington, D.C. 20036 

22 



• • 
Michael H. Rubin, Esq. 
Rubin, Curry, Colvin & Joseph 
Suite 1400 
One American Place 
Baton Rouge, LA 70825 

John L. Maxey II 
P.O. Box 22666 
Jackson, MS 39205 

Counsel for Plaintiffs-
Appellants