Roemer v Chisom Brief of Amici Curiae in Support of Petitioners

    No. 88-327

In The

Supreme Court of the United States
October Term, 1988

—  -- ---- o--------------
BUDDY ROEMER, et al,

Petitioners,
vs.

RONALD CHISOM, et al,
Respondents.

— ----.— o---------------
BRIEF OF THE STATE OF ALABAMA AND THE 

STATE OF MISSISSIPPI AS AMICI CURIAE IN 
SUPPORT OF PETITIONERS

---------------   - o ---------------------------

DON SIEGELMAN MIKE MOORE
Attorney General of the Attorney General of the
State of Alabama State of Mississippi
SUSAN E. RUSS STEPHEN J. KIRCHMAYR
Assistant Attorney General Deputy Attorney General

„  , . _  . (Counsel of Record)
Office of the Attorney General
Alabama State House 
11 South Union Street 
Montgomery, AL 36130 
(205) 261-7413
FOURNIER j. GALE, III 
Special Assistant Attorney 
General
(Counsel of Record)
MAYNARD, COOPER,

FRIERSON & GALE 
12th Floor, Watts Building 
Birmingham, AL 35203 
(205) 252-2889
DAVID R. BOYD 
Special Assistant Attorney 
General
BALCH & BINGHAM 
Post Office Box 78 
Montgomery, AL 36101 
(205) 834-6500
Counsel for the State 
of Alabama

Office of the Attorney General 
Post Office Box 220 
Jackson, MS 39205 
(601) 359-3680
Counsel for the State 
of Mississippi

COCKLE LAW  BRIEF PRINTING CO., (800) 225-6964 
or ca ll co llect (402) 342-2831



1

TABLE OF CONTENTS
Page

INTEREST OF AMICI CU R IA E................................... 1
SUMMARY OF ARGUMENT ....................................... 2
ARGUMENT ......................................................................  4
CONCLUSION ....................................................................  12



11

TABLE OF AUTHORITIES

Cases C ited
Page

Balter v. Carr, 369 U.S. 186 (1962) ................................. 10
Beer v. United States, 425 U.S. 130 (1976) ...................  10
Chisom v. Edivards, 839 F.2d 1056 (5th Cir. 1988) ... 1, 4, 5,

7,11,12
Davis v. Bandemer, 478 U.S. 109, 92 L.Ed.2d 85 (1986) 10
Director, OWCP v. Perini North River Associates,

459 U.S. 297 (1983) ........................................................  10
Haith v. Martin, 618 F.Supp. 410 (E.D. N.C. 1985), 

a ffd  mem., 477 U.S. 901 (1986) .................................10,11
Holshouser v. Scott, 335 F.Snpp. 928 (M.D.N.C.

1971), a ffd  mem., 409 U.S. 807 (1972) ..................... 8,9
Lucas v. Forty-Fourth General Assembly, 377 U.S.

713 (1964) ........................................................................ 7,11
Mallory v. Eyrich, 839 F.2d 275 (6th Cir. 1988) .........  1
Mobile v. Bolden, 446 U.S. 55 (1980) ............................... 5
Reynolds v. Sims, 377 U.S. 533 (1964) ........................... 7,8
Thornburg v. Gingles, 478 U.S. 30, 92 L.Ed.2d 25 

(1986) .̂.............................................................................3,5,9
Wells v. Edwards, 347 F.Snpp. 453 (M.D. La. 1972), 

affd mem., 409 U.S. 1095 (1973) ...............3,4, 8, 9,10,11
Whitcomb v. Chavis, 403 U.S. 124 (1971) ...........5, 6, 7, 8, 9
White v. Regester, 412 U.S. 755 (1973) ...................... 5,6,8
Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir.

1973) ................................-................................................ 6,8

S tatutes and Court R ules 

42 U.S.C. <§ 1973 ................ 1



I l l

TABLE OF AUTHORITIES— (Continued)
Page

M iscellaneotj s

S. Rep. No. 417, 97th Cong., 2d Sess. 27, reprinted 
in 1982 U.S. Code Cong, & Admin. News 177.............  5

Sutherland Stat. Const. §45.12 (4th Ed.) (1984) ........  10
Sutherland Stat. Const. § 48.03 (4th Ed.) (1984) ........  5
Sutherland Stat. Const. § 50.02 (4th Ed.) (1984) .....  5



INTEREST OF AMICI CURIAE
In Chisom v. Edwards, 839 F.2d 1056 (5th Cir. 1988), 

a ease arising in Louisiana, a panel of the Fifth Circuit 
Court of Appeals held that Section 2 of the Voting Rights 
Act, 42 U.S.C. §1973, as amended (“ Section 2” ), applies 
to state judicial elections. Similar litigation presenting 
a similar question is pending in at least six other states, 
including amici states Alabama and Mississippi. See Mal­
lory v. Eyrich, 839 F.2d 275 (6th Cir. 1988) (Ohio) (on re­
mand to the district court); Southern Christian Leader­
ship Conference of Alabama v. State of Alabama, Civil 
Action No. 88-D-462-N (M.D. Ala.) (filed May 11, 1988) 
(Alabama); Martin v. Mabus, Civil Action No. J84-Q708(B) 
(S.D. Miss.) (filed September 30, 1984), consolidated with 
Kirksey v. Mabus, Civil Action No. J85~0960(B) (S.D. 
Miss.) (filed October 17, 1985) (Mississippi), 658 F.Supp. 
1183 (S.D. Miss. 1987); McCray v. Mississippi State 
Board of Election Commissioners, Civil Action No. DC 
84-131-60-0 (N.D. Miss.) (filed July 18, 1984) (Mississip­
pi) ; Brooks v. Glynn County Board of Elections, Civil Ac­
tion No. CV 288-146 (S.D. Ga.) (filed July 18, 1988) 
(Georgia); Williams v. State Board of Elections, Civil 
Action No. 88-C-2377 (N.D. 111.) (filed March 22, 1988) 
(Illinois); League of United Latin American Citizens v. 
Clements, Civil Action No. MO-88-CA-154 (W.D. Tex.) 
(filed July 11, 1988) (Texas) ; Rangel v. Mattox, Civil Ac­
tion No. B-88-053 (S.D. Tex.) (filed May 24,1988) (Texas). 
Unless the United States Supreme Court grants this peti­
tion for certiorari and reviews and reverses the Fifth Cir­
cuit’s incorrect ruling, these states—and others, as more 
new suits are filed— stand in immediate danger of sweep­
ing federal court orders that would entirely restructure

1



state judicial election systems on untenable statutory 
grounds.

2

----------------o------ -------—

SUMMARY OF ARGUMENT

The Fifth Circuit erred in holding that Section 2 of 
the Voting Rights Act, as amended, applies to elections 
for state court judges. The court gave the wrong answer 
to this question because it consulted the wrong sources for 
guidance. Instead of concentrating on the congressional 
record—which is not enlightening on the question pre­
sented—the court of appeals should have looked prin­
cipally to the vote dilution case law which the new statute 
was designed to codify. These cases make it clear that 
the federal courts’ concept of vote dilution—which was 
expressly incorporated by amended Section 2—evolved 
entirely in the context of elections for legislative offices. 
In searching for the meaning of “ representative” as used 
in amended Section 2, the court of appeals should have 
construed the word to mean the same thing as the word 
meant when it was used in those seminal vote dilution 
cases, i.e., as synonymous with “ legislator.” Judges are 
not “ legislators” and therefore are not “ representatives” 
within the meaning of Section 2.

There is another important reason to recognize that 
amended Section 2’s vote dilution concept evolved in a 
legislative context: vote dilution is meaningful only in 
such a context. Once the Supreme Court fashioned pro­
tection against individual vote dilution by making the one 
person, one vote principle applicable to state legislative 
bodies, it was a short step to the concept of minority vote 
dilution. Subsequent cases made it clear that “ fair rep­



3

resentation” involves two related propositions: “ substan­
tial equality”  of every vote through the one person, one 
vote rule and, assuming such equality, the absence of dilu­
tion of minority voting strength. By making the second 
element dependent on the first, the courts simply recog­
nized that, without the assumption of equality of voting 
shares generally, there is no theoretical basis for a claim 
of dilution of minority voting strength.

Contemporaneously with the development of this dual 
concept of fair representation, the Supreme Court agreed 
in Wells v. Edwards that the one person, one vote rule 
does not apply to elections of judges. In so doing, the 
Court decided a fortiori that the conceptually dependent 
notion of minority vote dilution has no field of operation 
in judicial elections.

The Court’s decision in Thornburg v. Gingles rein­
forces this point. As Justice O’Connor observed there, 
dilution cannot be measured unless there is first a measure 
of “undiluted” minority voting strength. The dilution 
yardstick adopted in Thornburg—a calculation of the mi­
nority’s potential voting strength in a single-member dis­
trict system— obviously rests on the assumption that the 
one person, one vote rule applies and that each district 
has essentially equal population. In the absence of appli­
cability of the one person, one vote rule, Thornburg’s test 
is meaningless. Indeed, if one person, one vote does not 
apply, a state could always draw a district with a black 
majority. In such circumstances, there would be no ju­
dicially discernible and manageable standard for dealing 
with minority vote dilution claims. Consequently, such 
claims directed at judicial elections are simply not justici­
able given the Wells decision. Since Congress was aware



4

of the Wells decision and cannot be presumed to have done 
a futile act, Congress did not mean for amended Section 2 
to apply to judicial elections.

----------------o-----------------

ARGUMENT

In Chisom v. Edwards, the Fifth Circuit panel simply 
made the wrong turn when it sought a way to decide 
whether Section 2 applies to elections of state judges. 
Faced with the fact that Section 2 does not itself speak 
directly to the subject of judicial elections, the panel went 
to other parts of the Act and to legislative history for 
guidance. But after painstakingly sifting through the hun­
dreds of pages of hearings, reports and comments on the 
amended Act, the Court retrieved only fragile shards of 
evidence to confirm any kind of Congressional consensus 
on minority vote dilution in judicial elections. That evi­
dence is in fact either too diffuse (e.g., the broad remedial 
purpose of the entire Act, or general definitions of the 
words “voting” and “ vote” in another section of the Act) 
or too incidental (e.g., a single reference to “ judicial dis­
tricts” by a single Senator opposed to amendment, or 
scattered listings of minority judges in statistical charts 
and tables) to be useful.

In all candor, Section 2’s language and its legislative 
history remain intractably silent on the specific question 
of the applicability of Section 2 to judicial elections. How­
ever, the legislative history is clear on one crucial point: 
When Congress amended Section 2 in 1982 its primary 
intention was to codify certain case law on vote dilution. 
The Chisom court itself made this observation:



[T]he language added by Congress in subsection (b)— 
“ to participate in the political process and to elect 
representatives of their choice”—is derived almost 
verbatim from the Supreme Court’s standard govern­
ing claims of vote dilution on the basis of race set 
forth in White v. Regester, 412 U.S. 755, 93 S.Ct. 
2332, 37 L.Ed.2d 314 (i973), prior to Mobile v. Bolden 
[446 U.S. 55 (1980)]. See S. Rep. No. 417, 97th Cong., 
2d Sess. 27, reprinted in 1982 U.S. Code Cong. & Ad­
min. News 117, 205 (Congress’ stated purpose in add­
ing subsection (b) was to “ embodfy] the test laid down 
by the Supreme Court in White.” )

Chisom, 839 F.2d at 1062. Similarly, this Court has re­
peatedly recognized Congress’ chief reason for amending 
Section 2. See Thornburg v. Gingles, 478 U.S. 30, 35, 92 
L.Ed.2d 25, 37 (1986) (“ Congress substantially revised 
§ 2 . . .  to establish as the relevant legal standard” the re­
sults test applied in White and other pre-Bolden cases) ; 
id. at 83, 68 (O’Connor, J., concurring) (“ [a]mended §2 
is intended to codify the ‘results’ test employed in Whit­
comb v. Chavis, 403 U.S. 124 [1971]” and White).

But the Fifth Circuit panel completely missed the im­
plication of this point. In fact, the question of whether 
Section 2 extends to judicial elections needed—and con­
tinues to need—no further gloss than that already avail­
able to Congress in the pre-Bolden case law at the time 
of the 1982 amendments. Well-established rules of stat­
utory construction explicitly direct courts to examine such 
case law itself for guidance where a statute codifies that 
law. See Sutherland Stat. Const. §48.03 (4th Ed.) (1984) 
(“ [t]he pertinent court decisions may be consulted in the 
interpretation of statutes which restate decisional law” ) ; 
id. at §50.02 (“ [w]here a statute attempts to restate the



6

existing common law, the latter becomes an especially im­
portant factor in determining legislative intent” ). Thus, 
it was to the pre-Bolden vote dilution cases that the Fifth 
Circuit panel should have turned to determine whether 
Section 2 is meant to apply to judges.

Of course, neither White nor Whitcomb nor Zimmer 
v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc)— 
the key cases on minority vote dilution prior to 1980—ex­
pressly discusses judicial elections. But that is precisely 
the point. Whitcomb presented an attack on Indiana’s 
scheme of state legislative apportionment into multi-mem­
ber districts. White involved a challenge to legislative re­
apportionment in the Texas House of Representatives. 
Zimmer was a suit for reapportionment of the school 
board and police juries in a rural Louisiana parish. In 
other words, the courts’ concept of vote dilution evolved 
entirely in a legislative setting.

This faet is relevant for several reasons. First, ap­
pellants and appellees have engaged in a vigorous dispute 
about the meaning of the word “ representative” as it is 
used in amended Section 2:

A violation of subsection (a) of this section is estab­
lished if, based on the totality of circumstances, it is 
shown that the political processes leading to nomina­
tion or election in the State or political subdivision 
are not equally open to participation by members of 
a class of citizens protected by subsection (a) of this 
section in that its members have less opportunity than 
other members of the electorate to participate in the 
political process and to elect representatives of their 
choice. [Emphasis added.]

The Fifth Circuit resolved this disagreement on the side 
of the appellants’ argument that “ representative” means



7

nothing more specific than “ official” or “ candidate” by 
examining the Senate Report on the 1982 amendments and 
declaring that these terms are used interchangeably there. 
See Chisom, 839 F.2d at 1063. Again, the appeals court 
consulted the wrong source. Section (b), quoted above, is 
lifted essentially verbatim from. Whitcomb, 403 U.S. at 
149-50, and White, 412 U.S. at 766, and the proper context 
in which to assess the meaning of “ representative” is not 
the Senate Report, which offers little relevant guidance, 
but the decisional law that Congress read, considered and 
meant to invoke and replicate in amending Section 2. In 
Whitcomb and White, the significant words that the Court 
uses interchangeably are not “ representative” and “ candi­
date” or “ official,” but “ representative” and “ legislator.”  
There is no support whatsoever in these cases for the cir­
cuit court’s apparent view that a judge is obviously a 
“ representative” for purposes of Section 2.

But there is a second and more important reason for 
this Court to recognize that the concept of minority vote 
dilution codified in Section 2 evolved in a legislative con­
text. The crucial point is that minority vote dilution is 
meaningful only in such a context. In 1964, this Court held 
in Reynolds v. Sims, 377 U.S. 533 (1964), that the Four­
teenth Amendment requires state legislatures to apportion 
themselves by population. The touchstone by which the 
courts were henceforth to test apportionment was the 
“ easily demonstrable” rule of one person, one vote. Id. 
at 559-60. This rule meant that legislative districts had 
to be of roughly equal population so that courts could 
enforce each individual’s right to an equal mathematical 
“ share” of representation or, in the words of a companion 
case to Reynolds, “ an equally weighted vote.” Lucas v.



Forty-Fourth General Assembly, 377 U.S. 713, 736 (1964). 
Vote dilution occurred when an individual enjoyed some­
thing less than his or her proportionate voting strength.

It was a short step from the notion of individual vote 
dilution developed in Reynolds and its progeny to the con­
cept of minority vote dilution established in Whitcomb, 
White, and Zimmer. I f each individual owned a quantifi­
able share of representation, then a given group should 
wield the aggregate voting strength of its individual mem­
bers. In Zimmer, the conceptual link between these two 
kinds of vote dilution was made explicit:

Inherent in the concept of fair representation are two 
propositions: first, that in apportionment schemes, 
one man’s vote should equal another man’s vote as 
nearly as practicable; and second, that assuming sub­
stantial equality, the scheme must not operate to min­
imize or cancel out the voting strength of racial ele­
ments of the voting population.

Zimmer, 485 F.2d at 1303 (emphasis added). The key 
phrase here is “ assuming substantial equality.” For with­
out the assumption of substantial equality among voting 
shares made possible by the one person, one vote rule, no 
aggregate measure of minority voting strength—and there­
fore no measure of dilution of that strength—is con­
ceivable.

Hence, the significance of Wells v. Edwards, 347 F. 
Snpp. 453 (M.D. La. 1972) (three judge court), affd mem., 
409 U.S. 1095 (1973), in the debate over whether Section 2 
may coherently be applied to judicial elections. At pre­
cisely the time at which the Court was evolving the dual 
concept of fair representation summarized in Zimmer, the 
Wells case decided that the fair representation mandates



9

do not apply to judges. Accord Eolshouser v. Scott, 335 
F.Supp. 928 (M.D.N.C. 1971) (three judge court), aff’d 
mem., 409 U.S. 807 (1972). It is true that no specific 
charge of minority vote dilution was before the Court in 
Wells. But once the Court determined that the one person, 
one vote rule did not apply to the judiciary, it decided a 
fortiori that the conceptually dependent notion of minor­
ity vote dilution—later codified in Section 2—had no field 
of operation in judicial elections.

Thornburg v. Singles, the Court’s definitive exegesis 
of Section 2 vote dilution, sharpens this point. In her con­
curring opinion, Justice O’Connor notes that “ [i]n order 
to evaluate a claim that a particular multimember district 
or single-member district has diluted the minority group’s 
voting strength to a degree that violates § 2 . . . it is . . . 
necessary to construct a measure of ‘undiluted’ minority 
voting strength.” Thornburg, 478 U.S. at 88, 92 L.Ed.2d 
at 71 (O’Connor, J., concurring). There is no doubt that 
the yardstick adopted by the Thornburg Court-—a calcula­
tion of the minority’s potential voting strength in a single­
member district system—rests on the assumption that the 
one person, one vote rule applies and that each district 
has roughly the some population. See 478 U.S. at 50-51 
n.17, 89-90, 92 L.Ed.2d at 46-47 n.17, 72. Otherwise, to 
paraphrase Justice Harlan, the court would be unable 
even to measure what it purports to equalize. Whitcomb, 
403 U.S. at 169 (Harlan, J., separate opinion).

Without the measure of individual voting strength 
provided in legislative cases by the one person, one vote 
rule, Thornburg’s test is meaningless in the judicial con­
text. Since, under Wells, state judicial districts need not



10

be equal in size, a state could always theoretically draw a 
district in which blacks constitute a voting majority by 
reducing the total population in that district. Indeed, there 
is, effectively, no “ judicially discernible and manageable 
standard” by which a court could find that a given voting 
system does not dilute minority voting strength if Section 
2 applies to judges—and, thus, minority vote dilution 
claims are simply not justiciable given the Wells ruling. 
See Davis v. Bandemer, 478 U.S. 109, 122-23, 92 L.Ed.2d 
85, 99 (1986); Baker v. Carr, 369 U.S. 186, 217 (1962). 
Since it cannot be presumed that Congress would do a 
futile thing, Sutherland Stat. Const. §45.12 (4th Ed.) 
(1984), and it can be presumed that Congress was aware 
of existing judicial decisions such as Wells when it amend­
ed Section 2, id.; Director, OWCP v. Perini North River 
Associates, 459 U.S. 297, 319-20 (1983), the Chisom court 
was incorrect in concluding that Congress meant for Sec­
tion 2 to apply to the judiciary.

Haith v. Martin, 618 F.Supp. 410 (E.D.N.C. 1985) 
(three judge court), affd mem., 477 U.S. 901 (1986), in 
which this Court summarily upheld a district court deci­
sion that Section 5 of the Voting Rights Act does apply to 
judicial elections, does not alter this conclusion. Section 
5’s non-retrogression standard, see Beer v. United States, 
425 U.S. 130 (1976), is coherent independently of the one 
person, one vote rule. That is to say, Section 5 does not 
call for a court or the Attorney General to measure an 
existing voting system against an ideal voting system in 
which districts are assumed to be of equal population. 
Rather, Section 5 requires only an assessment of the ef­
fect of a change from one system to another, without ref­
erence to any ideal measure of voting strength. Thus,



1 1

Haith provides little guidance of relevance to the Chisom 
case.

In summary, this Court in Wells declined to enter 
the “ political thicket” by imposing its one person, one vote 
rule for legislative apportionment on judicial districting. 
Once that decision was made, it followed that the Court— 
and by extension, Congress—accepted the risk that not 
only would individuals have no actionable claim of vote 
dilution in cases of judicial malapportionment under Wells, 
but, absent intentional discrimination, groups would also 
enjoy no cause of action specifically arising from their 
failure to receive less than their aggregate mathematical 
share of voting strength in electing judges.

But the Court and Congress also created the corollary 
possibility that individuals and groups might secure more 
than their share of voting strength, giving states, in the 
words of Justice Stewart, the “ opportunity for enlight­
ened and progressive innovation in the design of its demo­
cratic institutions” to protect the minority from the dom­
ination of the majority. Lucas, 377 U.S. at 748-49 (Stewart, 
J., dissenting). Thus, for example, residents in Alabama’s 
26th Judicial Circuit, which is nearly 40 percent black, 
elect one judge for every 23,679 persons—arguably wield­
ing more voting strength than residents in Alabama’s 94 
percent white 30th Judicial Circuit, where residents elect 
one judge per 38,834 persons.

o



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CONCLUSION

In short, Congress weighed the alternatives in amend­
ing Section 2 and determined to regulate legislative, but 
not judicial, elections. This Court should not permit the 
Fifth Circuit panel’s misguided ruling in Chisom to upset 
that delicate balance. The requested writ of certiorari 
should issue, and this Court should reverse the Fifth Cir­
cuit panel’s decision.

Respectfully submitted,
D on S iegelman  
Attorney General of the 
State of Alabama
S usan  E. Russ 
Assistant Attorney General

Office of the Attorney General 
Alabama State House 
11 South Union Street 
Montgomery, Alabama 36130 
(205) 261-7413

F ournier J. Gale , III
Special Assistant Attorney General
(Counsel of Record)

M aynard , C ooper, F rierson 
& Gale

12th Floor, Watts Building 
Birmingham, Alabama 35203 
(205) 252-2889

D avid R. B oyd
Special Assistant Attorney General

B alch  & B in g h am  
Post Office Box 78 
Montgomery, Alabama 36101 
(205) 834-6500

Counsel for the State of Alabama



13

M ike M oore 
Attorney General of the 
State of Mississippi
S teph en  J. Kjr ch m ay r  
Deputy Attorney General 
(Counsel of Record)

Office of the Attorney General 
Post Office Box 220 
Jackson, Mississippi 39205 
(601) 359-3680

Counsel for the State of Mississippi