Appellees' Memorandum in Response to This Court's Request of July 15, 1988

    IN THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

No. 88-3492 
x 

RONALD CHISOM, et al., 

Plaintiffs-Appellees, 
V. 

BUDDY ROEMER, et al., 

Defendants-Appellants. 

APPELLEES' MEMORANDUM IN RESPONSE TO THIS 
COURT'S REQUEST OF JULY 15, 1988  

Introduction 

This case concerns the method of electing members of the 

Louisiana Supreme Court. See generally Chisom v. Edwards, 839 

F.2d 1056 (5th Cir. 1988) (holding that section 2 of the Voting 

Rights Act, 42 U.S.C. § 1973, applies to judicial eleetions). 1 

An election to fill one of the two positions from the First 

Supreme Court District was scheduled for October 1, 1988. 

Pursuant to La. Rev. Stat. Ann. § 18:467 (1988 Supp.), candidate 

qualifying was scheduled to take place on July 27-29, 1988. 

On July 7, 1988, the United States District Court for the 

1 Subsequent to the initiation of this lawsuit, Louisiana 
elected Buddy Roemer to replace Edwin Edwards as Governor and W. 
Fox McKeithan to replace Jim Brown as Secretary of State. 
Accordingly, these officials have automatically been substituted 
as defendants. Fed. R. Civ. P. 25(d)(1). Chisom v. Edwards, 
slip op. at 13 n. 28 (E.D. La. July 7, 1988). 



Eastern District of Louisiana (Charles Schwartz, J.) entered a 

prelimingky injunction prohibiting the defendants-appellants 

[hereafter referred to collectively as "the State"] from 

conducting any primary or general elections to fill the position 

of Justice of the Louisiana Supreme Court from the First Supreme 

Court District. 2 The State subsequently made an ex parte motion 

to the district court to stay its injunction pending an appeal. 

That motion was denied on July 13, 1988. 

On July 14, 1988, the State apparently filed three documents 

with this Court: a brief on the merits of its appeal of the 

district court's July 7 injunction; a motion to expedite that 

appeal; and a motion for a partial stay, pending disposition of 

the appeal, to permit the two-day qualifying period in late July 

2 Appellees had earlier sought preliminary injunctive 
relief from this Court while the State's petitions for rehearing 
and rehearing en banc were pending. On May 27, 1988, the panel 
that originally heard this case--Judges Johnson, Higginbotham, 
and Brown--denyied that motion for an injunction pending appeal 
"[i]n accordance with Fed. R. Civ. P. 8(a), which provides that 
an injunction request must ordinarily be made in the district 
court on first instance," Chisom V. Edwards, F.2d (5th 
Cir. May 27, 1988), slip op. at 1, ordered the mandate to be 
issued immediately, and suggested that 

In the event the plaintiffs assert their injunction 
request to the district court, whichever way the 
district court rules, this Court notes that any 
election held under an elections scheme which this 
Court later finds to be unconstitutional or in 
violation of the Voting Rights Act is subject to being 
set aside and the office declared to be vacant. See 
Hamer v. Campbell, 358 F. 2d 215 (5th Cir. 1966). 

Id. at 1-2. 
The panel considering the instant appeal may find it helpful 

to examine the arguments advanced by appellees in the papers 
filed in connection with their earlier motion for an injunction 
pending appeal in this Court. 

2 

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to go forward. 3 

On July 15, 1988, this Court directed the parties to address 

the question "why this Court should •not stay so much of the 

preliminary injunction, if any, as prohibits the qualification 

actions to be taken during the period July 27-29, 1988." 4 The 

short answer to that question is that the July qualifying period 

is inextricably linked to the October election date; since the 

State does not challenge the district court's holding that the 

present election method is "prima facie illegal" under section 2, 

Chisom, slip op. at 25, it has no basis for arguing that the 

injunction against the October election itself should be lifted. 

Argument  

I. The Candidacy Qualification Process Is Integrally  
Related to the Rest of the Electoral System 

"[A] filing period cannot be considered in isolation from 

the election of which it forms a part." NAACP v. Hampton County 

Election Commission, 470 U.S. 166, 177 (1985). 5 The reason for 

3 At this time, appellees' counsel responsible for 
responding to this Court's request has received none of the three 
pleadings, and none of appellees' counsel has yet received a copy 
of either the motion to expedite or the motion for a partial 
stay. The Fifth Circuit Clerk's Office informed counsel of these 
documents' existence by telephone on the afternoon of July 15, 
1988. 

4 This memorandum is limited to that precise question; 
it does not constitute appellees' brief on the merits of the 
district court's decision to grant a preliminary injunction. 

5 Indeed, under Louisiana law, the dates for the filing 
period are directly dependent on the dates on which the election 
is scheduled to occur. See La. Rev. Stat. Ann. § 18:467 (1988 

3 



this interrelationship is clear: potential candidates decide 

whether to seek a particular office, and thus whether to satisfy 

qualifying requirements, based on how they think they will fare 

in the election. Thus, if the method of election dilutes the 

voting strength of the black community, candidates who depend on 

that community for their support will be deterred from running. 

See, e.g., NAACP v. Hampton County, 471 U.S. at 177 ("[p]otential 

candidates who considered the opening of the filing period 

illegal" because of section 5 objection to the use of a 

particular at-large system "may have deliberately stayed away"); 

McMillan V. Escambia County, 748 F.2d 1037, 1045 (11th Cir. 1984) 

("the lack of black candidates is a likely result of a racially 

discriminatory system"); Citizens for a Better Gretna v. City of  

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

when minorities are faced with dilutive electoral structures 

"candidacy rates tend to drop") (citations and internal 

quotations omitted), aff'd, 834 F.2d 496 (5th Cir. 1987); Hendrix  

v. McKinnem, 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 S discourages black candidates 

because they face the certain prospect of defeat"). 

In this case, the district court found, and the State does 

Supp.) (setting candidacy qualifying dates for various elections 
by reference to the dates on which the elections are scheduled to 
occur). 

4 



not contest that finding here, 6 that plaintiffs had "established 

a prima facie case," Chisom v. Edwards, slip op. at 24 (July 7, 

1988), that the use of a multi-member district in the Orleans 

Parish area dilutes the voting strength of black citizens in 

violation of section 2. See also id. at 17-24 (analyzing the 

essentially undisputed evidentiary record before the court in 

light of Thornburg V. Gingles, 478 U.S. , 92 L.Ed.2d 25 (1986) 

and the legislative history of amended section 2). It also found 

that "no potential candidate with a broad base of support from 

the Orleans Parish black voting community is presently intending 

to run for the upcoming election this October because of a 

perception of doomed defeat" due to the use of a four-parish 

6 The State does argue, however, that the Supreme Court 
may grant certiorari on its as-yet unfiled petition and 
ultimately reverse this Court's holding that section 2 covers 
judicial elections. 

That argument, as the district court recognized, is 
inconsistent with this Court's practice of applying the existing 
law to cases before it rather than speculating as to what the 
Supreme Court may or may not do. See Chisom, slip op. at 16-17 
(citing Wicker v. McCotter, 798 F.2d 155, 157-58 (5th Cir. 1986) 
(refusing to grant stay even though Supreme Court had already 
granted certiorari on the issue raised). In this case, even such 
speculation strongly suggests that a grant of certiorari is 
unlikely. This Court has already held that section 2 applies, 
Chisom v. Edwards, 839 F.2d 1056, and has unanimously denied the 
State's petitions for rehearing and rehearing en banc. The only 
other court of appeals to have addressed this question also ruled 
that section 2 applies, Mallory v. Eyrich, 839 F.2d 275 (6th Cir. 
1988). And the Supreme Court has held that section 5 of the 
Voting Rights Act applies to judicial elections, Haith V. Martin, 
477 U.S. , 91 L.Ed.2d 559 (1986). 

Moreover, the Supreme Court having recessed for the summer, 
any petition the State ultimately does file will not be disposed 
of prior to the first Monday in October when the new Term begins. 
That first Monday is three days after the scheduled October 
election date. Staying the district court's injunction pending 
possible action by the Supreme Court is thus the same thing as 
denying appellees injunctive relief altogether. 

5 



district that submerges Orleans Parish's black electorate. 

Chisom, slip op. at 24-25. 

Thus, under the present scheme, no candidates dependent on 

the black community will seek to qualify in July: they have been 

deterred from laying the financial and political groundwork for a 

campaign by the dilutive configuration of the present First 

Supreme Court District. The only candidates who will seek to 

qualify in July are those who believe they can win under the 

current, presumptively invalid, election scheme. 

II. The State Has Failed To Show Why the October Election 
Should Go Forward 

The only reason to permit candidate qualifying in July to go 

forward is if an election will occur on October 1. Otherwise, 

using the July filing date may run afoul of Louisiana law. See 

La. Rev. Stat. Ann. § 18:467.1 (1988 Supp.) (if the date on which 

a primary is scheduled to occur changes, then the qualifying 

dates are changed as well). And the Supreme Court has repeatedly 

recognized the potential adverse racial impact of setting 

qualifying dates long before an election. See NAACP v. Hampton  

County, 471 U.S. at 175-77 (if election is put off, the increased 

length of time between filing and election may "hinde[r] voter 

participation); Hadnott V. Amos, 394 U.S. 358, 365-66 (1969) 

(finding that a statute increasing the time between qualifying 

and the election has a potentially discriminatory effect and is 

thus subject to the preclearance requirements of section 5); 

Allen v. State Board of Elections, 393 U.S. 544, 570 (1969) 

6 



(same). 

The heart of the State's argument as to why the October 

election should go forward is that appellees failed to show 

irreparable injury. At its core, this argument depends on their 

assertion that the creation of an Orleans Parish-only district in 

1990, should appellees ultimately prevail, would provide full 

relief. 

As the district court trenchently noted, however, "(t)hat a 

special election in the future may be constitutionally proper in 

no way makes the effects of an improper election any more 

palatable." Slip op. at 25 n. 57; see Chisom, 839 F.2d at 1065 

("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.") 

(emphasis added). Elections simply are not fungible: racial vote 

dilution this year is not counterbalanced by the mere possibility 

of a racially fair election two years from now. The conduct of 

elections under an illegal system--and defendants have conceded 

for purposes of this appeal that if section 2 applies the present 

system is illegal--necessarily works an irreparable injury. Slip 

op. at 24; see also, e.g., Reynolds V. Sims, 377 U.S. 533, 585 

(1964); Watson v. Commissioners Court of Harrison County, 616 

F.2d 105, 107 (5th Cir. 1980) (per curiam); Kirksey V. Allain, 

Civ. Act. No. J85-0960(B) (S.D. Miss. May 28, 1986); Harris v.  

Graddick, 593 F. Supp. 128 (M.D. Ala. 1984); Cook V. Luckett, 575 

F. Supp. 479, 484 (S.D. Miss. 1983). 

7 

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• 
The State's argument is constitutionally offensive as well. 

It implicitly suggests that conducting the October election is 

superior to enjoining it because going forward deprives only 

black voters of a fair opportunity to elect the candidate they 

prefer, while stopping the election until a fair system can be 

devised deprives white voters as well of their right to vote. Of 

course, nothing in the federal Constitution or the Voting Rights 

Act requires that a state select its judiciary through popular 

elections. 7 But once a state had decided to fill judicial 

positions by election, it must conduct those elections in a 

racially fair manner. 

Furthermore, the State's repeated assertions that there is 

"no doubt" that, if appellees prevail, they will be entitled to 

elect a justice from an Orleans Parish-only district in 1990 is, 

quite simply false. The district court expressly stated that it 

would "provide no guarantee that the seat up for election in 1990 

will in fact be 'assigned' to Orleans Parish." Slip op. at 27 

(emphasis added); see slip op. at 24 n. 55.; 26-27 & n. 59. The 

district court based this conclusion on several factors: the 

possibility that the remedy would not involve single-member 

districts at all; the possibility that it might approve single-

7 Under section 5, however, Louisiana would not be 
permitted to switch now from an elected to an appointed 
judiciary unless that change would have neither the purpose nor 
the effect of diluting black voting strength. See Allen v. State 
Board of Elections, 393 U.S. 544, 569-70 (1969) (holding that 
change from election to appointment is covered by section 5); 
U.S. Comm'n on Civil Rights, The Voting Rights Act: Ten Years 
After 171-72 (1975). 

8 



• 
member districts that did not create an Orleans Parish district; 8 

and the possibility that, even if the present district is divided 

and an Orleans Parish district created, the seat up in 1990 might 

be "assigned" to the suburban parishes. 

Moreover, it is not inconceivable that the same problem will 

arise in 1990 as now exists. The Supreme Court may delay 

disposing of the petition in this case until next spring or 

later, see Revesz & Karlan, Nonmajority Rules and the Supreme  

Court, 136 U. Pa. L. Rev. 1067, 1109-11 (1988) (discussing the 

Supreme Court's "hold" policy which has sometimes held petitions 

for two years); then, when the case returns to the district 

court, there may be a delay in deciding the merits; 9 there may 

8 Indeed, the Court noted that a bill currently pending 
in the State Legislature would do precisely that. 

Appellees take the position that section 2 requires a remedy 
that affords blacks an equal opportunity to elect their preferred 
candidate and thus the creation of two majority-white single-
member districts would fail to cure the existing violation, since 
it would continue to submerge a politically cohesive black 
electorate. Cf. Major V. Treen, 574 F. Supp. 325 (E.D. La. 1983) 
(three-judge court) (finding that congressional districting 
scheme involving essentially the same area as the First Supreme 
Court District violated section 2 by splitting Orleans Parish). 

9 Appellees informed the district court in June that they 
were prepared to move for summary judgment immediately, but the 
district court expressed its reluctance to decide such a motion 
until the State had answered the complaint (which it still has 
not done) and, perhaps, had had the opportunity to conduct some 
discovery. 

It is possible, of course, that the district court will deny 
any motion for summary judgment and require a full trial. 
Although there is currently an October 19, 1988, trial date, the 
State is unlikely to be willing to go to trial then if the 
Supreme Court has not yet denied its petition for certiorari. 

If the district court grants summary judgment, the State 
may appeal to this Court and again seek certiorari, once more 
delaying a final resolution. 

9 

try, 45, 

• • . • • : • 



also be another round of appeals, petitions for rehearing and 

rehearing en banc, and requests for Supreme Court review. If the 

process just described takes, say, eighteen months, then in the 

spring of 1990, the black community will once again face 

elections from a multi-member, multi-parish, predominantly white 

district; candidates dependent on its support will once again be 

deterred from running; and the State may once again argue, for 

the same reasons it has now advanced, that the election should go 

forward, and that black voters can be assigned the "1998" seat. 

Having filed this lawsuit in September 1986, appellees are 

entitled to a fair election in 1988, not one potentially a decade 

from now. 

III. The State Has Failed To Show That the District Court 
Abused its Discretion in Enjoining the October Election 

In this Court, the State repeats essentially the same 

arguments it presented to the district court. But the issue in 

this Court is not whether an injunction should be issued. 

Rather, "the standard for appellate review of a preliminary 

injunction is simply whether the district court abused its  

discretion in issuing the injunction; [and] the reviewing court 

does not engage in the same plenary review that would be 

indicated on appeal of permanent relief." Henry v. First  

National Bank of Clarksdale, 595 F.2d 291, 302 (5th Cir. 1979) 

(emphasis added), cert. denied, 444 U.S. 1074 (1980); see Exxon 

Corp. V. Berwick Bay Real Estate Partners, 748 F.2d 937, 939 (5th 

Cir. 1984). 

10 



Claims under section 2 of the Voting Rights Act demand an 

"intensely local appraisal" of the "indigenous political 

reality." Thornburg V. Gingles, 478 U.S. 92 L.Ed.2d 25, 65 

(1988) (internal quotations and citations omitted). In this 

case, the district court, sitting in and familiar with Orleans 

Parish, conducted precisely the kind of fact-intensive, locale-

specific inquiry appropriate to a section 2 claim. It followed 

the standard for granting a preliminary injunction set out by 

this Court in Canal Authority v. Callaway, 489 F.2d 567, 572 (5th 

Cir. 1974), and engaged in a thorough and "searching evaluation 

of the past and present reality" of judicial electoral politics 

in the First Supreme Court District. It concluded that appellees 

had met their burden under each of the four prongs of the 

Callaway test. Moreover, the very nature of this case demanded 

that the district court conduct a balancing test among several 

interests. It concluded that letting the election proceed raised 

the spectre of setting it aside later (as this Court's per curiam 

opinion of May 27, 1988, had suggested); diminishing confidence 

in the electoral process; diminishing voter participation and 

turnout; forcing candidates to expend time and effort in 

ultimately wasted campaigns; and tainting the Louisiana Supreme 

Court's deliberative processes. See, e.g., slip op. at 30-31. 

In light of that process, it simply cannot be said that the 

district court abused its discretion in concluding that a 

presumptively illegitimate election system should not be 

permitted once again to deny black voters the opportunities it 

11 

..• 
• • 1 



affords to white voters. 

Conclusion 

This Court should not stay any portion of the district 

court's injunction. Certainly, a. piecemeal approach, such as 

that suggested by the State and contemplated by the Court's July 

15, 1988, question is unwarranted. Whether to conduct qualifying 

is entirely dependent on whether to let the now-enjoined election 

proceed. To lift the injunction on qualifying alone would send 

mixed signals to voters and candidates alike and fail to insure 

that the 1988 election complies with the Voting Rights Act. 

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: July 18, 1988 

tfully submitted, 

• 

JULIUS L. CHAMBERS 
CHARLES STEPHEN RALSTON 
C. LANI GUINIER 
JUDITH REED 
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 

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CERTIFICATE OF SERVICE  

I hereby certify that on July 18, 1988, I served copies of 

the foregoing memorandum upon the attorneys listed below by 

causing it to be sent 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 ' 

Robert Berman, Esq. 
Civil Rights Division 
Department of Justice 
Washington, D.C. 20035 

Gtc, 
Counsel for Appellees 

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