Memorandum to Counsel from Ganucheau (Clerk); Order; Order Amending Opinion; Amending and Superseding Opinion

    GILBERT F. GANUCHEAU 
CLERK 

Pniteb $tates Court of czN3peals 
FIFTH CIRCUIT 

OFFICE OF THE CLERK 

July 28,1988 

MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW: 

No. 88-3492 - CHISOM, ET AL., -vs- ROEMER, ET AL., 
(USDC NO. CA-86-4075A) 

The following action has been taken in the above case: 

EJ AN EXTENSION OF TIME has been granted to and including 

for filing appellant's/petitioner's brief. 

for filing appellee's/respondent's brief. 

for filing reply brief. 

for filing petition for rehearing. 

Motion to consolidate granted. 

Motion to supplement or correct the record granted. 

Motion for leave to file supplemental brief granted. 

Motion for leave to file brief amicus curiae is granted. 

Joint motion as to time for filing briefs granted. 

Order enclosed has been entered. 

TEL. SO4489-6514 
600 CAMP STREET 

NEW ORLEANS, LA 70130 

cc: ALL COUNSEL OF RECORD GILBERT F. GANUCHEAU, Clerk 

Mrs. Loretta G. Whyte, Clerk 

MOT-2 



IN T1PUNITED STATES COURT OF AJOIALS 

FOR THE FIFTH CIRCUIT 

No. 88-3492 

RONALD CHISOM, ET AL., 

versus 

BUDDY ROEMER, ET AL., 

ittS,, CO • APPEALS 

t 

CilLEERTE GANUCHEAU 
QLER 

Plaintiffs-Appellees, 

Defendants-Appellants. 

Appeal from the United States District Court for the 
Eastern District of Louisiana 

Before CLARK, Chief Judge, GARZA and POLITZ, Circuit Judges. 

BY THE COURT: 

IT IS ORDERED that the request of the District 

Court for leave to amend the opinion entered July 7, 1988 

is GRANTED. FRAP 10(e). 

ENTERED FOR THE COURT: 

/s/ Charles Clark 
CHIEF JUDGE 



_ 

UNITED STATES DISTRICT COURT 
JUL 28 9 58 AM '88 

EASTERN DISTRICT OF LOUISIANA 

RONALD CHISOM, ET AL. 

VERSUS 

EDWIN EDWARDS, ET AL. 

Order Amending Opinion 

.. A 

e4 
Civil Action 

No. 86-4075 

Section “A ” 

By Order dated July 28, 1988, this matter was remanded to 

this Court for the limited purpose of allowing this Court to amend 

its written Opinion entered July 7, 1988. 

This Court has discovered the following three errors arising 

from oversight or omission in the Opinion. First, the second 

paragraph on page 4 of the Opinion should read in its entirety as 

follows (the underscored text representing added material): 

Earlier this year, during the current state legis-
lative session, Representative Bruneap introduced House 
Bill No. 1630, which would create seven new single-
member districts for the Louisiana Supreme Court; this  
bill would divide Orleans Parish so as to become parts  
of two new districts. It appears that another bill,  
providing for a "Missouri-plan" system for selecting 
Louisiana's justices, has been proposed this year, that 
a house committee passed on the bill favorably by a 
four-to-one majority on May 30, that the bill came up 
for vote in the House that same day but failed for being 
four votes short of the necessary two-thirds majority 
and that the bill remains viable but with no further 
action thereon having been taken since May 30. 

Second, the phrase "F.R.Civ.P. 8(a)" on page 14, which was copied 

from the Fifth Circuit's Order of May 27, 1988 in this matter, 

should read "F.R.App.P. 8(a)" instead. Third, the phrase "would 

have the equal opportunity" in the third sentence in footnote 57 
JEg 

should read "would not have the equal opportunity" insteadmocEss 

CHARGE  
NDEX 

RDER 

HEARING 

DOCUMENT No. DATE OF ENTRY L 

-1-



Accordingly, on its own initiative under F.R.Civ.P. 60(a), 

the Court now AMENDS and SUPERSEDES the original Opinion nunc pro 

tunc with the attached Amending and Superseding Opinion, which re-

flects these changes and no more. 

The Order entered, and preliminary injunction issued, on July 

7, 1988 in connection with the Opinion is unaffected by these 

changes and shall remain in full force and effect, consistent with 

the limited remand. Moreover, this Court was not given jurisdic-

tion to reissue the Order, or the preliminary injunction, under 

the limited remand. Accordingly, the Clerk of Court is directed, 

as soon as the Amending and Superseding Opinion is entered, to 

return this matter to the Fifth Circuit forthwith for disposition 

of the pending appeal. 

cpd1._ 
New Orleans, Louisiana, this04- 0  day of July, 1988. 

UNITED STATES DISTRICT 



UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA 

RONALD CHISOM, ET AL. 

VERSUS 

EDWIN EDWARDS, ET AL. 

Amending and Superseding Opinion 

t; A 

Jut_ 28 9 su AM '68 

Civil Action 

No. 86-4075 

Section "A" 

SCHWARTZ, J. 

This matter came before the Court on June 29, 1988 for hear-

ing on plaintiff's motion for preliminary injunction. For the 

following reasons, the Court now GRANTS the motion. 

This is a voting discrimination case. Plaintiffs allege that 

the present system for electing the two Louisiana Supreme Court 

Justices from New Orleans area improperly dilutes the voting 

strength of black Orleans Parish voters. Plaintiffs now seek to 

enjoin the upcoming election on October 1, 1988 for one of the two 

seats. 

Because the Court finds a substantial likelihood, based on 

solely on the limited evidence presented and as discussed below, 

that plaintiffs will succeed on the merits and finds it would be 

grossly unfair to the public, including the plaintiffs, to permit 

the election to proceed, the Court exercises its discretion to 

grant the preliminary injunction pending the final resolution on 

the merits. 

E OF ENTRY j'.14dL :48 198a 
-1-

FEE   

PROCESS 
HAR G E 
TDEX 

HEARING 
DOCUMENT No. 



• 

Having considered the stipulations made, the affidavits pre-

sented, the record, the arguments of counsel, the briefs of the 

amici curiae, and the applicable law, the Court rules as follows. 

To the extent any of the following findings of fact constitute 

conclusions of law, they are adopted as conclusions of law; to the 

extent any of the following conclusions of law constitute findings 

of fact, they are adopted as findings of fact. 

I. 

The fifty United States have a large array of methods for 

selecting their judicial branches. These methods range from 

gubernatorial appointments to "Missouri-plan" appointments with 

noncompetitive retention elections to legislative elections to 

nonpartisan elections to partisan elections. The vast majority of 

states (38 states) choose their judiciary through elective sys-

tems for at least a portion of their judicial posts. Louisiana 

chooses all its judiciary through nonpartisan elections. 

Louisiana has had eleven State Constitutions. Five of these 

have provided for appointive systems in selecting the justices to 

the Louisiana Supreme Court, while an equal number (including the 

present Constitution of 1974) has provided for elective systems; 2 

the remaining one provided for an appointive system, but was later 

La. Const. of 1812, art. 3, § 9; La. Const. of 1845, art. 50; La. Const. 

of 1864, art. 79; La. Const. of 1868, art. 75; La. Const. of 1879, art. 82. 

2  La. Const. of 1852, art. 63; La. Const. of 1861, art. 63; La. Const. 

1913, art. 86; La. Const. of 1921, art. 7, § 7; La. Const. of 1974, art. 5, § 

22(A). 



tr*It-1 S 

amended to provide for an elective system. 3 The present constitu-

tional provisions received pre-clearance approval by the U.S. 

Attorney General pursuant to section 5 of the Voting Rights Act. 4 

The Louisiana Supreme Court presently consists of seven jus-

tices. 5 The justices are elected from six Supreme Court Dis-

tricts, 6 and each serves for terms of ten years.' Five of the 

districts elect one justice each, but one district--the First 

Supreme Court District--elects two justices. 8 

La. Const. of 1898, art. 86, as amended in 1904. 

4 42 U.S.C. § 1973c (1982). On November 26, 1974, J. Stanley Pettinger, 

Assistant Attorney General for the Civil Rights Division, U.S. Department of 
Justice, sent the following two-paragraph letter to Kenneth C. DeJean, Assis-

tant Attorney General, Louisiana Department of Justice: 
This is in reference to your submission of the Louisiana State Consti-

tution submitted to the Attorney General pursuant to Section 5 of the 
Voting Rights Act of 1965. Your submission was received complete (with 

the exception of [an immaterial portion of 1974 Constitution)), on Octo-

ber 3, 1974. 
The Attorney General does not interpose an objection to the completed 

part of the submission. However, no decision yet can be made with regard 
to [the immaterial portion). We feel a responsibility to point out that 
the failure of the Attorney General to object to the completed part of 

the submission does not bar any subsequent judicial action to enjoin the 
enforcement of such changes. We also would like to call to your atten-
tion [information about the immaterial portion). 

La. Const. of 1974, art. 5, § 3; La. Rev. Stat. Ann. § 13:101 (West 1983). 

6  La. Const. of 1974, art. 5, § 22(A); La. RSA § 13:101. While the provi-

sion in the 1974 Constitution on selecting judiciary members does not specifi-
cally refer to "justices," but rather only to "judges," the term "judges" as 

used in § 22(A) appears to apply equally to Louisiana Supreme Court justices as 
well. See Calogero v. State ex rel. Treen, 445 So. 2d 736, 737-38 (La. 1984); 
Id. at 741 (Marcus, J., dissenting) ("Under the new constitution, the term of a 
supreme court 'judge' shall be ten years."); see also La. Const. of 1974, art. 

5, § 4 (referring to supreme court members as "judges"); id. art. 5, § 22(B) 
(this subsection on vacancies "in the office of a judge" provides for vacancies 
on the supreme court); La. RSA § 13:74 (referring to both "judges of the su-

preme court" and "the chief justice"). 

7  La. Const. of 1974, art. 5, § 3. 

8  Id. art. 5, § 4 (incorporating La. Const. of 1921, art. 7, § 9); La. RSA 

§ 13:101. 

-3-



S • 

The First Supreme Court District covers an area around metro-

politan New Orleans; specifically, it consists of the parishes of 

Orleans, St. Bernard, Plaquemines, and Jefferson. 9 The two judi-

cial seats assigned to this district are not filled in the same 

election year. The term on one of these seats, the one presently 

held by Justice Pascal F. Calogero Jr., is scheduled to expire on 

December 31, 1988 and to be filled by election on October 1, 1988; 

the term on the other, presently held by Justice Walter F. Marcus 

Jr., is scheduled to expire on December 31, 1990 and to be filled 

by election in the fall of 1990. 

Earlier this year, during the current state legislative ses-

sion, Representative Bruneau introduced House Bill No. 1630, which 

would create seven new single-member districts for the Louisiana 

Supreme Court; this bill would divide Orleans Parish so as to 

become parts of two new districts. It appears that another bill, 

providing for a "Missouri-plan" system for selecting Louisiana's 

justices, has been proposed this year, that a house committee 

passed on the bill favorably by a four-to-one majority on May 30, 

that the bill came up for vote in the House that same day but 

failed for being four votes short of the necessary two-thirds 

majority,' and that the bill remains viable but with no further 

action thereon having been taken since May 30. 

According to the 1980 Census, the total population of the 

First Supreme Court District is as follows: 

9 Id. (incorporating La. Const. of 1921, art. 7, § 9); La. RSA § 13:101(1). 

1° See La. Const. of 1974, art. 5, § 4. 

-4-



1 Total % Black 

Orleans Parish 
Jefferson Parish 
St. Bernard Parish 
Plaquemines Parish 

TOTAL 

557,515 
454,592 

• 64,097 
26,049 

1,102,253 34.39% 

55.25% 
13.89% 
3.73% 

21.12% 

According to the Louisiana Elections Commissioner, the following 

figures reflect the district's number of registered voters by race 

as of March 31, 1987: 

1 
Orleans Parish 
Jefferson Parish 
St. Bernard Parish 

Plaquemines Parish 
TOTAL 

Total 
251,359 
199,534 

40,086 
15,198 

506,177 342,858 

White 1 Black 1 % Black 
118,232 131,726 52.4% 
174,742 23,825 11.9% 
38,508 1,577 3.9% 
11,376 2,825 18.6% 

159,953 31.6% 

According to the 1980 Census, the total populations and racial 

breakdowns of the six Supreme Court Districts are as follows: 

District 

1 
2 
3 
4 

5 
6 

Total Pop. 1 White 1 % White 

1,102,253 698,418 63.4% 
582,223 386,283 66.3% 

692,974 537,586 77.6% 
410,850 274,007 66.7% 

861,217 596,972 69.3% 
556,383 418,906 75.3%  

Black 
379,101 
188,490 

150,036 
134,534 
256,523 
129,557 

% Black 
34.4% 

32.4% 
21.7% 
32.7% 
29.8% 

23.3% 

TOTAL 4,205,900 2,912,172 69.2% 1,238,241 29.4% 

According to the 1980 Census, certain statistics for Orleans Par-

ish are as follows: 

Persons age 25 or over who were 
high school graduates 

Persons age 25 or over who had completed 
fewer than eight years of school 

Per capita income 
Median household income 
Mean household income 
Median family income 
Mean family income 
Families with incomes in 1979 

below the poverty level 
Persons with incomes in 1979 
below the poverty level 

Persons with incomes in 1979 that 
were below 75% of the poverty level 

Housing units with no telephones 

1 for whites 1 for blacks 

70.8% 46.9% 

11.2% 
$9,781 

$15,605 
$21,975 
$21,544 

$28,496 

21.8% 
$3,985 
$8,847 

$12,159 
$10,516 

$13,727 

33.4% 

37.3% 

29.1% 
14.2% 

-5-



Housing units with no vehicle available 20.8% 42.4% 

At present, blacks represent a majority of the total popu-

lation, the voting-age population, and the registered voters in 

Orleans Parish. 

In Major V. Treen,'' a state-wide case under section 5 of the 

Voting Rights Act, the court found the following: In 1898, Loui-

siana imposed property and educational qualifications on the fran-

chise." Further, in 1898, Louisiana adopted a "grandfather 

clause" for the purpose of allowing whites who did not otherwise 

qualify for registration, but not similar blacks, to vote.' 3 In 

1923, Louisiana authorized the use of white-only primaries, which 

continued until such use was struck down by the U.S. Supreme Court 

in 1944.' 4 In the 1950s, Louisiana adopted citizenship tests and 

anti-single-shot provisions." 5 In 1959, Louisiana established a 

majority-vote requirement for election to party committees. Each 

of these acts, the court found, was instituted in part to diminish 

the political power of black residents.' 

The court further found the following: Voting in elections 

11 

12 

13 

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

See La. Const. of 1898, art. 197, § 3. 

See id. art. 197, § 5. 

'4 See Smith v. Allwright, 321 U.S. 649, 64 S. Ct. 757, 88 L.Ed. 987 (1944). 

15 For a description of how single-shot (bullet) voting works, see City of  
Rome v. United States, 446 U.S. 156, 184 n.19, 100 S. Ct. 1548, 1565 n.19, 64 
L.Ed.2d 119 (1980). While the context of corporate rights is different, its 
concerns with minority voting votes provides instructive analogy. Cf., e.g., 

La. Rev. Stat. Ann. § 13:75(1) (West 1969) (generally providing for plurality-

vote at-large elections for corporate directors). 

16 See Major, 574 F. Supp. at 340. 



involving black candidates for political office in Orleans Parish, 

including elections involving black candidates seeking judicial 

office, reflect a substantial correlation between the race of 

voters and the selection of certain candidates.' White voters 

within the First District generally do not support black candi-

dates, and vice versa, in elections involving both black and white 

candidates.' 8 

The court further found the following: Louisiana enforced a 

de jure policy of racial segregation in public education, trans-

portation, and accommodations until these practices were outlawed 

by the Supreme Court and Congress. 9 Until at least 1981, Louisi-

ana operated a dual public university system.' Until the late 

1960s, public facilities in Louisiana were segregated. 2  The 

population growth of the suburban parishes adjacent to Orleans 

Parish was partly due to the exodus from New Orleans of white 

families seeking to avoid court-ordered desegregation of the 

city's public schools; the white voters of these suburban parishes 

were not receptive to black candidates. 22 

17 •Id. at 337-38. 

Id. 

Is Id. at 340-41. 

20 Presently pending before this Court sitting as a three-judge court' is a 

summary judgment motion by the federal government that Louisiana is still oper-
ating a dual system of higher education. See United States v. State of Louisi-

ana, Civ. 80-3300. 

21 

22 

Major, 574 F. Supp. at 341. 

See id. at 339. 



• 

In Citizens for a Better Gretna V. City of Gretna, 23 the dis-

trict court found legally significant racial bloc voting in cer-

tain city alderman elections in Jefferson Parish. 

In the twentieth century, no black person has served on the 

Louisiana Supreme Court. In the twentieth century, at least two 

black persons have sought election to the Louisiana Supreme Court 

from the First Supreme Court District. 24 In 1972, Judge Ortique 

ran for the seat now held by Justice Calogero, with the following 

results: 

Candidate Total Orleans Parish  
Ortique 27,326 21,224 
Calogero 66,411 33,700 
Redmann 21,865 10,240 
Sarpy 74,320 34,011 

Judge Ortique thus received 21.4% of the votes in Orleans Parish. 

Also, in 1972, a black man named Amedee ran for the seat now held 

by Justice Marcus, with the following results: 

Candidate ) Total j Orleans Parish  
Amedee 11,722 8,847 

Marcus 78,520 47,725 
Bossetta 35,267 19,115 

Garrison 51,286 25,437 
• Samuel 25,659 6,042 

Mr. Amedee thus received 8.3% of the votes in Orleans Parish. At 

that time, blacks represented 33.4% of the registered voters in 

Orleans Parish. 

Running an effective campaign for a seat on the Supreme Court 

from the First Supreme Court District requires significant lead 

23 636 F. Supp. 1113 (E.D. La. 1986), aff'd, 834 F.2d 496 (5th Cir. 1987). 

24 In their brief, plaintiffs stated that no black person had ever sought 

such election. See Statement No. 61 of Plaintiffs' Statements of Uncontested 
Material Fact. At oral argument, however, they conceded that their statement 

was in error. 

-8-



time to obtain endorsements, raise funds, and set up an effective 

campaign organization to publicize one's candidacy and "get out 

the vote." 

In connection with their motion, plaintiffs have submitted 

five affidavits: one by statistician Dr. Richard L. Engstrom, one 

by Civil District Court Judge Revius 0. Ortique Jr., one by former 

Fourth Circuit Judge Israel M. Augustine Jr., one by Civil Sheriff 

Paul R. Valteau Jr., and one by sociologist Silas Lee III. 

Dr. Engstrom has performed two statistical analyses on 27 

separate judicial elections wholly within Orleans Parish during 

the period from September 1978 to October 1987 wherein one or more 

black candidates ran against one or more white candidates. He 

used the methods of extreme case (or homogeneous precinct) analy-

sis and bivariate ecological regression, which methods were ap-

proved by only a plurality of the U.S. Supreme Court in Thornburg 

v. Gingles. 25 He concluded "that voting within Orleans Parish in 

judicial elections reflects racial polarization, as that term is 

defined in Gingles." 

25 478 U.S. 30„ 106 S. Ct. 2752, 2772, 92 L.Ed.2d 25 (1986) (Brennan, 

J., for plurality on this point);,see also id. at , 106 S. Ct. at 2783-84 
(White, J., concurring in judgment and disagreeing with Brennan, J., on this 
point); id. at , 106 S. Ct. at 2792 (O'Connor, J., concurring in judgment) 
("Only a plurality of the Court ... addresses the validity of the statistical 
evidence on which the District Court relied in finding racially polarized vot-

ing in each of the challenged districts."). 
Whether Dr. Engstrom's analysis in this case comports with what even the 

plurality was approving in Thornburg is unclear. While Dr. Engstrom centered 
his analysis in this case on the race of the candidates, the plurality stated 
that "the race of the candidate per se is irrelevant to racial bloc voting 
analysis." Id. at , 106 S. Ct. at 2775. But cf. id. at , 106 S. Ct. at 
2775-76 ("Because both minority and majority voters often select members of 
their own race as their preferred representatives, it will frequently be the 
case that a black candidate is the choice of blacks, while a white candidate is 

the choice of whites."). 

-9-



S 

Judge Ortique, a black Orleans Parish resident, was elected 

in 1979 as a judge on the Civil District Court for Orleans Parish, 

the State's trial court of general jurisdiction in Orleans Parish. 

In 1984, he was re-elected to a six-year term without opposition. 

He states the following among other things: 

In my contested race, the vast bulk of my financial 
support, as well as the majority of the votes I re-
ceived, came from the black community. 

I have seriously considered running for the Loui-
siana Supreme Court from the First Supreme Court Dis-
trict. I believe, however, that the current configura-
tion of the district effectively prevents any black can-
didate from being successful. White voters outnumber 
black voters by a substantial margin due to the inclu-
sion of the suburbs and Orleans Parish in one multi-
member district. Moreover, suburban white voters simply 
will not support a black candidate. Thus, under the 
present scheme, I will not run. Nor do I know of any 
other black candidate with a broad base of support in 
the black community who would undertake the clearly 
futile attempt to achieve election from the First Sup-
reme Court District. 

I am deterred from running by the current configu-
ration of the First Supreme Court District. If, how-
ever, a Supreme Court district were to be created that 
contained only Orleans Parish, I would run. Such a dis-
trict would offer the black community an excellent op-
portunity to elect the candidate of its choice, because 
blacks constitute a majority of the registered voters in 
Orleans Parish. ... 

He continues by stressing his experience that "fundraising by 

judicial candidates is heavily dependent on the perceptions of 

potential contributors regarding the likelihood of success" and 

that "incumbency is a tremendous advantage." He thus is of the 

opinion that "allowing the election to go forward as scheduled and 

then scheduling a special election would disadvantage a black can-

didate who chose to contest a fairly districted seat at such a 

special election." He added that an effective campaign for ju-

dicial office requires about 9 to 18 months "lead time" and that 



"if the upcoming election were to go forward, it would be impos-

sible for a black candidate to mount an effective campaign." 

Former Judge Augustine, another black Orleans Parish resi-

dent, was a judge of the Criminal District Court for Orleans Par-

ish from 1969 to 1981, at which time he was elected to the Fourth 

Circuit Court of Appeal, on which he served until his voluntary 

retirement in 1984. In his two contested races, he "received most 

of [his] financial and political support from the black communi-

ty." He believes he "was able to win solely because the district 

in which [he] ran was predominantly black." He then reiterates 

the same basic conclusions as does Judge Ortique. 

Civil Sheriff Valteau was elected to his position in 1982. 

He is "convinced that the only place that a Black candidate has a 

'fair opportunity' to be elected to public office is in Orleans 

Parish." He adds that "it is virtually impossible to elect a 

Black person who is required to seek office from a multi-parish 

district." 

Mr. Lee is a sociologist instructor and president of a public 

opinion, research, and consulting firm in New Orleans. He is of 

the opinion that "the chance that a black candidate could win a 

seat on the Louisiana Supreme Court from the First Judicial Dis-

trict in its present form is nonexistent" but that if a black 

candidate could win an election "from a district containing only 

Orleans Parish." He believes the upcoming election should be 

enjoined "because, even if the district were to be redrawn later 

this spring to include only Orleans Parish, it would be difficult, 

if not impossible, for a black candidate to mobilize financial and 



political support in the short time remaining before the October 

1, 1988, election." 

Defendants presented almost no evidence in opposition to 

plaintiffs motion. They presented just two affidavits, one by 

Associate Justice Calogero and one by Gregory Pechukas. 

Justice Calogero was first elected in 1972 to fill a two-year 

unexpired term for the First Supreme Court District. In 1974, he 

was reelected, and that term is due to expire on December 31, 

1988. 26 He intends to seek reelection this fall and has begun 

preparing for the upcoming election. Included among his prepara-

tory efforts are "his organizing committees, formation of a Calo-

gero Campaign Committee, and conducting fundraising activities." 

He is aware that at least one other person, "a woman attorney" in 

his affidavit but known to this Court to be Darleen M. Jacobs, 

intends to run for the 1988 seat and has begun similar preparatory 

efforts. He adds that he has been living in Jefferson Parish 

since 1984, while Justice Marcus has been living in Orleans Par-

ish. 

Mr. Pechukas is the Louisiana Supreme Court's Director of the 

Central Staff, which assists in the review of all criminal cases 

on direct appeal and virtually all other criminal cases. Under 

Louisiana law, the Supreme Court shall review every sentence of 

death. 27 Since 1976, the Louisiana Supreme Court has considered 

2' Calogero v. State ex rel. Treen, 445 So. 2d 736 (La. 1984) (holding in a 

declaratory judgment action that Justice Calogero's present term would be for 

14 years, and not 10 years). 

27 La. C.Cr.P. art. 905.9; see La. Const. of 1974, art. 5,.§ 5(D)(2) ("a 
case shall be appealable to the supreme court if ... the defendant has been 

convicted of a felony"). 

-12-



82 death penalty appeals, involving 74 defendants. In 49 of these 

appeals, the Supreme Court affirmed the defendant's conviction and 

sentence; in 30 of these appeals, the Supreme Court reversed the 

defendant's conviction and sentence, or affirmed the conviction 

but reversed the sentence; in the remaining 3 appeals, the Supreme 

Court remanded the case to the district court for further evi-

dence. Of the 49 affirmances, one case was decided by a 4-3 vote; 

in two others of the affirmances, rehearings were denied by a 4-3 

vote. Of the 30 reversals of conviction and sentence or of sen-

tence alone, 6 were decided by a 4-3 vote. 

B. 

Plaintiffs filed this action on September -19, 1986. Named as 

plaintiffs are Ronald Chisom, Marie Bookman, Walter Willard, Marc 

Morial, and Henry A. Dillon III, all black registered voters in 

Orleans Parish, as well as the Louisiana Voter Registration/Educa-

tion Crusade, a nonprofit organization comprised of black Orleans 

Parish registered voters active in voting rights issues. The 

plaintiffs are suing, in a class action under F.R.Civ.P. 23(b)(2), 

on behalf of themselves and all other black registered voters in 

Orleans Parish. Named as original defendants are Edwin Edwards in 

his capacity as Governor of the State of Louisiana, James H. Brown 

in his capacity as Secretary of the State of Louisiana, and Jerry 

M. Fowler in his capacity as Commissioner of Elections of the 

State of Louisiana. 28 Plaintiffs allege that the present system 

2' Buddy Roemer has succeeded Edwin Edwards as governor and W. Fox McKeith-
en has succeeded Jim Brown as secretary. Pursuant to F.R.Civ.P. 25(d)(1), 

then, these new officials have been automatically substituted as defendants. 

-13-



for electing the two seats in the First Supreme Court District for 

the Louisiana Supreme Court violates section 2 of the Voting 

Rights Act as amended. 29 

On defendants' motion to dismiss, this Court held that plain-

tiffs failed to state a cause of action under section 2 because 

judges are not "representatives" of the body politic. 3° On Febru-

ary 29, 1988, the Fifth Circuit reversed, holding that section 2 

applies to judicial elections. 32- On May 27, 1988, the Fifth Cir-

cuit denied defendants' motion for rehearing and suggestion for 

rehearing en banc and ordered that mandate issue immediately. At 

oral argument, defendants stated they anticipate filing, after the 

issuance of this opinion but within the time limits permitted by 

the Supreme Court rules, a petition for a writ of certiorari. 

Following the Fifth Circuit panel's decision on February 29 

but prior to its denial for rehearing on May 27, plaintiffs moved 

in the Fifth Circuit for a preliminary injunction to enjoin the 

upcoming election for Justice Calogero's seat pending disposition 

of their claim in the U.S. Supreme Court. On May 27, 1987, the 

panel denied the motion for failure to comply with F.R.App.P. 

8(a), "which provides that an injunction request must ordinarily 

be made in the district court on first instance." The panel added 

the following dictum: 

29 42 U.S.C. § 1973. Their complaint also alleges that this system violates 

the fourteenth and fifteenth amendments. 

30 659 F. Supp. 183 (E.D. La. 1987). The Court also dismissed the consti-
tutional claims for failure of plaintiffs to amend their complaint to allege 

discriminatory intent. Id. at 187-89. 

31 839 F.2d 1056 (5th Cir. 1988). The Fifth Circuit also reversed the dis-

missal of the constitutional claims. Id. at 1064-65. 

-14-



In the event the plaintiffs assert their injunction 
request to the district court, whichever way the dis-
trict court rules, this Court notes that any election 
held under an election 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). 

Plaintiffs now move this Court for the same preliminary injunc-

tion. 32 

At the hearing, upon the Court's initiative, all counsel 

consented to the Court's considering the evidence for the motion 

as including the entire documentary record before the Court. Fur-

ther, upon the Court's initiative, all counsel consented to the 

Court's certifying the plaintiff class on the basis of the present 

record and for the purpose of the preliminary injunction motion 

only. 

In order for plaintiffs to obtain a preliminary injunction, 

they must prove each of four prerequisites: 

(1) a substantial likelihood that plaintiffs will pre-
vail on the merits; 

(2) a substantial threat plaintiffs will suffer irrepar-
able injury if the injunction is not granted; 

(3) that the threatened injury to plaintiffs outweighs 
the threatened harm the injunction may do to defen-
dants; and 

(4) that granting the injunction will not disserve the 
public interest. 33 

As explained below, the Court finds plaintiffs to have sufficient-

ly satisfied all four elements and concludes, in its discretion, 

32 

33 

Plaintiffs seek a preliminary injunction on just the section 2 claim. 

Canal Authority v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974). 



that the injunction should issue. 

A. Merits  

The Court first disposes of defendants' argument concerning 

their intended petition for a writ of certiorari and its effect on 

the first element of the preliminary injunction test. Confident 

of this Judge's opinion that section 2 does not and should not 

apply to judges, defendants suggest that plaintiffs cannot show "a 

substantial likelihood" that their claim will survive U.S. Supreme 

Court review of the Fifth Circuit's opinion to the contrary. 

To quote Judge Rubin in a recent case on facts more pressing 

for the party aggrieved by a Fifth Circuit precedent (the appel-

lant was challenging his death penalty conviction): 

In the absence of a declaration by the Supreme 
Court that executions should be stayed in cases pre-
senting the issue raised by [the appellant before the 
Fifth Circuit), we must follow our circuit's precedents 
and deny both a certificate of probable cause and a stay 
of execution on this issue. The grant of certiorari in 
Hitchcock and McCleskey is insufficient per se to raise 
•in this case the requisite to a certificate of probable 
cause: that the petitioner presents an issue that jur-
ists of reason would consider debatable on the evidence 
proffered to us, but the fact that the Court has agreed 
to consider these cases does not alter the authority of 
our prior decisions." 

While this Court adheres to its original opinion, the Fifth Cir-

cuit has spoken; this Court is bound by the Fifth Circuit's hold-

ing, unless and until that holding is either expressly or tacitly 

overruled judicially by either the Fifth Circuit or the Supreme 

Court or legislatively by Congress. Stated another way, the "sub-

stantial likelihood" element concerns issues of fact in each case 

34 Wicker v. McCotter, 798 F.2d 155, 157-58 (5th Cir. 1986). 

-16-



S 
•I 

as they relate to the law, and not solely issues of law. The 

appropriate question is whether there is a substantial likelihood 

that plaintiffs will have sufficient evidence to satisfy their 

burdens of proof under the law as established at this time, not 

whether there is substantial likelihood that a point of law appli-

cable to the case will be modified by a reviewing authority. 

Although this Court recognizes the nation-wide impact of the 

issues involved in this case inasmuch as over two-thirds of the 

states choose their judges through elections and believes that 

U.S. Supreme Court review is warranted to settle the important 

question of federal law in extending section 2 to apply to persons 

who do not represent voters, this Court is not at liberty to as-

sess plaintiffs' likelihood, or unlikelihood, of success at the 

Supreme Court.' 

In Thornburg v. Gingles, 36 a case concerning a challenge to 

an at-large election system for certain legislative positions, the 

Supreme Court, for the first time, considered the 1982 amendments 

to section 2 of the Voting Rights Act. Now , that it is the law of 

this case that section 2 applies to judges, this Court must apply 

35 Even if the appropriate understanding of the substantial-likelihood ele-
ment were to require district courts to predict a party's "odds" upon appellate 
review--a seemingly quite unjusticiable function--this Court would have to 
reach the same conclusion in this particular case; in light of the unanimous 
panel opinions of the Fifth Circuit, Chisom, 839 F.2d 1056, reh'g en banc de-
nied, and the Sixth Circuit, Mallory v. Eyrich, 839 F.2d 275 (6th Cir. 1988), 
and the lack of any other, conflicting circuit opinions, this Court would have 
to ignore the realities of the judicial process in order to conclude otherwise. 

36 478 U.S. 30, 106 S. Ct. 2752, 92 L.Ed.2d 25 (1986). 



the rules of Thornburg and its progeny." 

In Thornburg, a majority of the Court set forth an illustra-

tive list of typical factors to be considered in evaluating a sec-

tion 2 claim: 

the history of voting-related discrimination in the 
State or political subdivision; the extent to which 
voting in the elections of the State of political sub-
division is racially polarized; the extent to which the 
State or political subdivision has used voting practices 
or procedures that tend to enhance the opportunity for 
discrimination against the minority group, such as un-
usually large election districts, majority vote require-
ments, and prohibitions against bullet [single-shot) 
voting; the exclusion of members of the minority group 
from candidate slating process; the extent to which 
minority group members bear the effects of past dis-
crimination in areas such as education, employment, and 
health, which hinder their ability to participate effec-
tively in the political process; the use of overt or 
subtle racial appeals in political campaigns; and the 
extent to which members of the minority group have been 
elected to public office in the jurisdiction." 

For section 2 challenges to multimember districts, as here, the 

'7 For Fifth Circuit progeny, see Campos v. City of Baytown, Texas, 840 

F.2d 1240, 1242-45 (5th Cir. 1988) (affirming on liability, but vacating remedy 
in a challenge to an at-large system for electing city council members); Citi-

zens for a Better Gretna v. City of Gretna, Louisiana, 834 F.2d 496, 498-99 
(5th Cir. 1987); Monroe v. City of Woodville, Mississippi, 819 F.2d 507, 511 

(5th Cir. 1987) (per curiam) (reversing summary judgment dismissal of challenge 
to at-large city aldermanic election), cert. denied, U.S. , 108 S. Ct. 
774, 98 L.Ed.2d 860 (1988); League of United Latin American Citizens v. Midland  
Independent School District, 812 F.2d 1494, 1496-97 (5th Cir. 1987) (affirming 

order that at-large system of electing board of trustees for school district be 
divided into seven single-member districts), reh'g en banc aff'g district court  
on other grounds, 829 F.2d 546 (5th Cir. 1987) (per curiam). See also Wright  
v. City of Houston, Mississippi, 806 F.2d 634, 635 (5th Cir. 1986) (per curiam) 
(remanding in light of Thornburg); Overton v. City of Austin, Texas, 798 F.2d 

150 (5th Cir. 1986) (per curiam) (same). 

38 478 U.S. at , 106 S. Ct. at 2763-64 (citing with approval Sen. Rep. 
No. 417, 97th Cong., 2d Sess. 28-29 (1982), reprinted in 1982 U.S. Code Cong. & 
Admin. News 177, 206-07); see also Citizens for a Better Gretna, 834 F.2d at 

498-99 ("the Court [in Thornburg] relied substantially on Zimmer as a founda-
tion for the analytical framework prescribed for § 2 claims") (discussing Zim-
mer 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, 96 

S. Ct. 1083, 47 L.Ed.2d 296 (1976) (per curiam). 

-18-



Court suggests that the most important of these 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 of political subdivision is racially 

polarized." 39 The other factors are "supportive of, but not es-

sential to, a minority voter's claim."" "Although many or all of 

the factors are relevant in a challenge to an at-large system, the 

Court concluded that 'the use of multimember districts generally 

will not impede the ability of minority voters to elect represen-

tatives of their choice,' unless 'a bloc voting majority must 

usually be able to defeat candidates supported by a politically 

cohesive, geographically insular minority group." 4 The Court 

recast these factors into a broad three-part test: 

First, the minority group must be able to demonstrate 
that it is sufficiently large and geographically compact 
to constitute a majority of 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." 

The second and third parts, cohesion and majority bloc voting, are 

usually proven by statistical evidence of racially polarized vot-

ing. 43 In short, the ultimate finding of minority voter dilution 

478 U.S. at n.15, 106 S. Ct. at 2766 n.15. 

40 Id. (emphasis in original). 

41 campos, 840 F.2d at 1239-40 (quoting Thornburg, 478, U.S. at, 106 S. 

Ct. at 2766) (emphasis in Thornburg). 

42 

43 

478 U.S. at , 106 S. Ct. at 2766-67. 

ErilE2E, 840 F.2d at 1243. 

-19-



is to be based on "the totality of the circumstances." 44 

Turning to the facts in this case, the Court summarizes the 

pertinent aspects of the First Supreme Court District elective 

system. The First Supreme Court District is the only multimember 

Supreme Court District and has the largest Supreme Court District 

in population. Elections for the Louisiana Supreme Court are cov-

ered by Louisiana's majority-vote requirement. Because election 

terms for the two seats from the First Supreme Court District are 

staggered, it is impossible for voters within the district to 

"bullet," or "single-shot," vote. 

Defendants' sole evidence (the affidavits of Justice Calogero 

and Mr. Pechukas) do not concern the merits, but rather the equi-

table issue of whether the proposed injunction would be in the 

public interest. Where, as here, a defendant offers no rebutting 

evidence, the plaintiff need only prove a prima facie case on the 

merits in order to satisfy the "merits" element to the preliminary 

injunction test; in such cases, the plaintiff establishes a sub-

stantial likelihood of success by establishing a prima facie case. 

On the one hand, to permit a plaintiff to establish less would 

improperly require the Court to presume the existence of evidence 

the plaintiff may not have or may wish not to present at any final 

hearing on the merits; on the other hand, to require more would 

improperly require the Court to presume the existence of evidence 

44 Id. (citing Thornburg, 478 U.S. at , 106 S. Ct. at 2782 (Brennan & 
White, JJ.) ("The District Court in this case carefully considered the totality 
of the circumstances"); see also Thornburg, 478 U.S. at , 106 S. Ct. at 2796 
(Stevens, J., dissenting in this part; with Marshall & Blackmun, JJ., joining) 
(stating that J. Brennan's plurality "accurately summarizes" the district 

court's findings). 

-20-



the defendant may not have or may wish not to present at any final 

hearing on the merits. In this case, then, the Court must deter-

mine whether plaintiffs have established a prima facie case that 

the present elective system violates section 2. 

As for the first of the two critical factors identified in 

Thornburg, it is undisputed that no black person in this century 

has ever served on the Louisiana Supreme Court. 

As for the second of these two factors--the presence of raci-

ally polarized voting--the limited evidence presented establishes, 

at least for this interim prima facie showing, that elections in 

the four parishes that constitute the current First Supreme Court 

District, and in particular judicial elections, may be character-

ized by racial bloc voting. 

Implicit in Judges Ortique and Augustine's affidavits is 

their testimony that black voters in this area continue to prefer 

black candidates and white voters in this area continue to prefer 

white candidates and that white voters will not vote for black 

candidates, whom black voters prefer. 45 Taking judicial notice of 

certain facts found by the court in Major v. Treen, this Court 

remarks that other black New Orleans politicians have made the 

45 The affidavits of Judges Ortique and Augustine and of Civil Sheriff Val-
teau focus primarily on the effect of the present elective system on black can-
didates, rather than on black voters. While a majority of the Court in Thorn-
burg rejected the plurality's suggestion that a candidate's race is irrelevant 

and is not to be considered as a statistical factor for determining whether 
racial bloc voting exists, compare 478 U.S. at , 106 S. Ct. at 2775-77 
(Brennan, J., joined on this point by Marshall, Blackmun & Stevens, JJ.) with 

id. at , 106 S. Ct. at 2783-84 (White, J., concurring in judgment) and id. 
at , 106 S. Ct. at 2793 (O'Connor, J., joined by Burger, C.J., & Rehnquist & 
Powell, JJ., concurring in judgment), this Court must emphasize that the vot-

ers, and not the candidates per se, are the central concern of section 2. 
There is enough in the affidavits, however, for the Court to supply sufficient 
relevant inferences about not only candidates, but also voters. 

-21-



same observation. 46 

Because the statistical method that Dr. Engstrom appears to 

have used has only been approved by a plurality of the Supreme 

Court,' because this Court observes that Dr. Engstrom's correla-

tion coefficients differ from the corresponding coefficients by 

the plaintiffs' expert in Major V. Treen, 48 and because this 

Court's experience has shown that lone statistics not yet sub-

jected to cross-examination (for example, through rebutting stat-

istics) quite often inaccurately describe actuality, the Court 

gives little effect to his statistical findings, beyond his gen-

eral corroborating conclusion that blacks in this district gener-

ally vote for blacks and whites in this district generally vote 

against blacks. 

As for other of the Thornburg factors, the Court takes judi-

cial notice of Louisiana's past de jure policy of voting-related 

racial discrimination. Throughout the earlier part of this cen-

tury, the State implemented a variety of stratagems including 

educational and property requirements for voting, a "grandfather" 

clause, an "understanding" clause, poll taxes, all-white prim-

aries, anti-single-shot voting provisions, and a majority-vote re-

quirement to "suppres[s] black political involvement." 49 The 

Court adds, however, that there has been no evidence presented of 

blacks now being excluded from candidate slating processes or of 

46 

47 

4E1 

Major, 574 F. Supp. at 338 (citing former Mayor Ernest Morial). 

See supra at page 9 & n.25. 

See id. at 337-38 n.17. 

at 340. 

-22-



the use of overt or subtle racial appeals in political campaigns. 

All three practices identified in Thornburgs° as tending to 

exacerbate the diluting effect that at-large elections have on 

minority groups are present in this case. First, the First Su-

preme Court District is an "unusually large election distric[t]." 

Specifically, it has a far larger population than any other Su-

preme Court Districts  and further is the only multimember dis-

trict in the state. Second, Louisiana has a majority-vote re-

quirement. Finally, the existence of staggered terms for the two 

seats in the First Supreme Court District precludes "single-shot" 

voting. 52 

Following Thornburg, this Court also applies its three-part 

test for assessing whether the choice of multimember, rather than 

single-member, districts will "impede the ability of minority 

voters to elect representatives of their choice." 53 As for the 

second and third parts, the Court reiterates its discussion on the 

evidence of racially polarized, or bloc, voting.' As for the 

50 478 U.S. at , 106 S. Ct. at 2764 (citing Sen. Rep., supra note 38, at 

29). 

si The Court questions the extent to which this factor is relevant for ana-
lysis of judicial elections. See Wells v. Edwards, 347 F. Supp. 453 (M.D. La. 
1972) (three-judge court) (holding that the "one man/one vote" principle of 
apportionment does not apply to states' judiciaries), aff'd mem., 409 U.S. 
1095, 93 S. Ct. 904, 34 L.Ed.2d 679 (1973). 

52 See City of Rome, 446 U.S. at 185 n.21, 100 S. Ct. at 1566 n.21. 

53 478 U.S. at , 106 S. Ct. at 2766 (emphasis added). The Court must 

reject plaintiffs' broad position that this Court may focus wholly on the right 
to vote, without consideration of the necessary consequences therefrom (viz., 
the ability to elect a person of one's choice). References to the abstract 
right to vote would be meaningless unless they necessarily considered the ulti-
mate effect--having the person of one's choice elected or not. 

5'4 See supra text accompanying notes 42-43. 

-23-



first part, the Court observes that Orleans Parish residents con-

stitute a majority of the residents in the First Supreme Court 

District, that black residents in Orleans Parish represent a maj-

ority of its residents, and that black voters in Orleans Parish 

represent a majority of its voters. In other words, the class of 

black voters in First Supreme Court District is "sufficiently 

large and geographically compact to constitute a majority in a 

single-member district."" 

In sum, upon considering the totality of the circumstances, 

this Court holds that plaintiffs have established a prima facie  

case that the present elective system for the two seats on the 

First Supreme Court District violates section 2 of the Voting 

Rights Act and thus, in this case, have established a substantial 

likelihood of success on the merits. 

B. Irreparable Injury  

An injury is irreparable if it "cannot be undone through 

monetary remedies." The right at issue in this case, the right 

to vote, is entirely nonpecuniary, and no amount of financial com-

pensation can redress its deprivation. 

It appears from the affidavits of Judges Ortique and Augus-

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

55 By this observation, the Court expresses oo opinion whether plaintiffs' 
requested division--one district consisting of Orleans Parish and the other 
consisting of the three surrounding parishes--should be the appropriate remedy. 
The Court observes, however, that improper dilution of minority group voting 

strength may arise from the concentration of the minority voters into a dis-
trict where they represent an excessive majority. See Thornburg, 478 U.S. at 

n.11, 106 S. Ct. at 2764 n.21. 

56 Spiegel v. City of Houston, 636 F.2d 997, 1001 (5th Cir. Unit A 1981). 

-24-



^ 

the Orleans Parish black voting community is presently intending 

to run for the upcoming election this October because of a percep-

tion of doomed defeat.' Suggesting that they have not yet begun 

"to get the vote out," the two imply that they would not run in 

1988 regardless of how this Court may rule. 

Thus, for the period preceding this Court's final resolu-

tion' of the status of Justice Calogero's present seat (however 

long that period may be), if no candidates with large black sup-

port is intending to run, then black voters as well as all other 

voters will suffer no worse if no injunction issues than if one 

does issue--as far as their being able to elect the candidates of 

their choice. On the one hand, if an injunction issues, then the 

seat may continue to be occupied by a justice who won his seat in 

1974 under a voting system that at this preliminary point has been 

57 Because the plaintiff class may include other persons who, unlike Judges 

Ortique and Augustine, nevertheless intend to run this fall as candidates of 
the black voters' choice, the Court must note the additional irreparable injury 
that may affect plaintiffs if the upcoming election proceeds. If such a black 
candidate would run this year, then the resources from the black community to 

contest any later special election would be diminished by an expenditure of 
effort in a perhaps essentially meaningless election in 1988. To the extent 
the prima facie showing herein is indicative of an actual violation of section 
2, black voters in 1988 would not have the equal opportunity to try to elect 
the candidate of their choice. That a special election in the future may be 
constitutionally proper in no way makes the effects of an improper election any 

more palatable. 

The time of final resolution should not be understood to be any date of 
judgment within the meaning of F.R.Civ.P. 54. Rather, in this context, it 
should be understood as the time when an election is finally held, or an ap-
pointment finally made, in response to the Court's final judgment. If liabil-
ity is ultimately found, then the election (or appointment) will be in some 
yet-to-be-determined form; otherwise, the election will continue under the 

present system. 
While the Court generally speaks of an appropriate remedy as being an 

elective system, the Court expresses no opinion whether the remedy must be an 
elective system (for example, the State may enact another method for selecting 
judges) or what elements any elective system must, or may not, have. 



determined to have been prima facie illegal. On the other hand, 

if no injunction issues, then the seat shall by occupied by a 

justice who will win the 1988 seat under the same voting system. 

The sole difference is the year in which the person who occupies 

the seat has been or will be elected, for there has been no mater-

ial change between 1974 (or even earlier) and now in how the seat 

is to be chosen. 

But focus solely on pre-remedy period is too myopic a focus. 

The Court cannot ignore the tremendous power and benefits of in-

cumbency, alluded to by Judge Ortique and well-recognized by all 

who are knowledgeable students of the electoral process. If the 

upcoming election were not enjoined, then the (white) person el-

ected this fall would enjoy the enviable position of being a re-

cent incumbent. Because this incumbency advantage would have been 

obtained through a system that, at least under the instant, inter-

im prima facie showing, has improperly diluted black voting 

strength, black voters, among others, would be unfairly harmed by 

having the candidates of their choice run under this handicap. 

While Justice Calogero in any event would have an advantage 

as an incumbent elected 14 years ago, this advantage would be 

vastly enhanced he were to run and win again this fall, for his 

name would become vastly fresher in the voters' minds by the time 

the new remedy is implemented, whenever that may be, than other-

wise. By granting the injunction, the Court mitigates the effects 

of any unfair advantage from incumbency. 

Even if plaintiffs prevail on the merits of liability and the 

district is divided into two single-member districts as they re-



S 

quested,' this Court can provide no guarantee that the seat up 

for election in 1990 will in fact be "assigned" to Orleans Parish. 

Voters in both new districts will have a claim that their district 

should not served by a justice elected in large measure by voters 

outside the district. Because of the equitable difficulty in de-

ciding which of the two districts should include the 1990 seat and 

which the 1998 seat, this Court may well decide to assign the pre-

sent two positions to the new districts in a wholly random fash-

ion. In such case, if no injunction issues, the Orleans-based 

seat might well be the 1998 seat, thus delaying the parish's black 

voters the benefit of the new election process. 

C. Balance of Harm to Defendants  

The sole defendants in this matter are the governor, the 

secretary of state, and the election commissioner. These three 

appear to have two interests relevant to this motion: the secre-

tary and the elections commissioner are responsible for conducting 

elections, while the governor is responsible for seeing that the 

law is executed faithfully. 

The only potential injury defendants may suffer if an injunc-

tion is granted is the expense of conducting a special election, 

59 The appropriate remedy may well be, for example, a mere elimination of 
the staggered-seat provision, or some other remedy that nonetheless maintains 
the multimember provision. Whatever the remedy, however, the Court notes that 
section 2 prohibits the fashioning of a district formed for the purpose of as-
suring to an almost absolute certainty or otherwise that a minority candidate 
will be elected. See 42 U.S.C. § 1973(b) ("... nothing in this section estab-
lishes a right to have members of a protected class elected in numbers equal to 
their proportion in the population"). The remedy is only to cure the vote 

dilution. 



should plaintiffs ultimately fail on the merits." But this 

potential injury alone is insufficient to defeat the injunction. 

First, as the Court has concluded as a matter of law, plaintiffs 

have satisfied the requirement of substantial likelihood on the 

merits. Second, defendants have offered no evidence whatever that 

these costs outweigh the threatened irreparable injury to plain-

tiffs; expenditure of public funds are to be given a minimal 

weight in determining whether or not to insure the application of 

constitutional mandates. Third, it is entirely possible that any 

future election to fill seats on the Supreme Court can be coordi-

nated with regularly scheduled elections, thereby avoiding entire-

ly any such expense." 

The governor's duty to see that the laws are faithfully ex-

ecuted extends to all citizens of the State. If the present elec-

tion scheme violates section 2 (and thus, under the Supremacy 

Clause, the "laws" that are to be faithfully executed), it injures 

the entire State, whose laws are expounded by a Supreme Court 

chosen in a fashion that at this preliminary stage appears to be 

prima facie exclusionary. 

D. Public Interest  

If plaintiffs ultimately succeed on liability, as they have 

shown they are substantially likely to do, then one of two scenar-

GO While a special election is likely in the event plaintiffs ultimately 
prevail on the merits, such would likely be necessary whether or not this Court 

now enjoins the 1988 election. 

6' 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). 

-28-



ios would occur if no injunction were granted: (1) the candidate 

elected in 1988 would serve a full 10-year term or (2) the 1988 

election would have to set aside in order that any new system with 

regard to that seat may be instituted prior to the expiration of 

that 10-year term. Either scenario would disserve the public 

interest. 

Under the first scenario, the person elected in 1988 would be 

elected from the entire four-parish district. The electorate in 

the new, remedied district to which the 1988 incumbent's seat 

would be allotted would be deprived of its right, under a consti-

tutionally adequate system, to elect a justice from that district 

until at least 1998. Further, Justice Marcus (whose seat is up 

for reelection in 1990) 6' would be deprived the opportunity, usu-

ally afforded to a public official whose district has been divid-

ed, to run for election in either of the two newly created dis-

tricts. The first scenario, then, would be patently unfair. 

Of course, the likelihood that the first scenario would be 

the one that would represent reality is slim. As the Fifth Cir-

cuit hinted in its May 27th dictum, this Court would likely have 

to set such an election aside well before 1998, when the 10-year 

term would normally expire.' But this second scenario is no more 

62 If the remedy chosen completely redraws the present districts throughout 

the state, cf. La. House Bill No. 1630 (1988), then other justices may be ad-
versely affected just as Judge Marcus would be. . 

63 See, e.g., Watson v. Commissioners Court of Harrison County, 616 F.2d 
105, 107 (5th Cir: 1980) (per curiam) (service for another four years too 
long); Smith v. Paris, 386 F.2d 979, 980 (5th Cir. 1967) (per curiam) (ordering 
special election at next regularly scheduled election in two years); Hamer v.  
Campbell, 358 F.2d 215, 222 (5th Cir.) (service for another four years too 
long), cert. denied, 385 U.S. 851, 87 S. Ct. 76, 17 L.Ed.2d 79 (1966), cited in 

Chisom, Order (5th Cir. May 27, 1988) (No. 87-3463). 

-29-



palatable. Not only would campaign expenses would incurred and 

unrecoverable and effective campaign strategies revealed, but 

also, perhaps more importantly, voters' confidence in the elec-

toral process would be diminished from a perceived instability in 

our form of government. The nature of federal power to void state 

elections is "[d]rastic, if not staggering," and the exercise of 

such power is "a form of relief to be guardedly exercised."" 

Further, the possibility that such power would be exercised 

may likely dampen interest both in seeking office and in voting 

and may likely diminish financial support for candidates. Other-

wise potential candidates may be unwilling to expend time and 

money or to reveal campaign strategies that may or may not result 

in a term of office of possibly just one or two years. Thus, even 

if the Supreme Court reverses the Fifth Circuit on the 12(b)(6) 

issue or if this Court ultimately concludes that defendants should 

prevail on the merits, any election before either such possible 

event would be adversely affected if no injunction were granted. 

As already explained in Part II(B) above, it would be unfair 

to all persons opposing a candidate at any remedial election that 

may be held in the future for the candidate to •run this fall and 

win under the present scheme and thereby have an unfair advantage 

as a recent incumbent at the subsequent election. 

Additionally, the qualities of deliberation and nonpolitici-

zation that Louisiana's decade-long term of office now helps 

serve--and that should be among the hallmarks of proper judicial 

64 Bell v. Southwell, 376 F.2d 659, 662 (5th Cir. 1967); Cook v. Luckett, 

735 F.2d 912, 921 (5th Cir. 1984). 

-30-



functioning--would be undermined by creating, what may be in es-

sence, a one-to-two year term. In this connection, the Court 

notes that many of concerns in holding over representative offi-

cial beyond the end of their term are absent with respect to judi-

ciary officials. Specifically, the concerns that an official may 

no longer fairly represent the partisan interests of his consti-

tuency ought not be present with held-over judges, for, as this 

Court noted in its original opinion, "[j]udges, by their very de-

finition, do not represent voters."" 

While an injunction most certainly will dash the expectations 

of present candidates for the 1988 election, or at least of Jus-

tice Calogero (who it appears has not yet even announced his 

candidacy), no candidate can have a legally cognizable interest in 

being able to seek election from a district whose configuration 

violates the Voting Rights Act." 

Defendants raise the specter of a state constitutional limbo 

where criminal defendants' rights and/or , the public's interest in 

its criminal justice system may be jeopardized from an inability 

to form Louisiana Supreme Court majorities of four67 once Justice 

65 Chisom, 659 F. Supp. at 186. 

Ge' Cf. Morial v. Judiciary Commission of the State of Louisiana, 565 F.2d 
295 (5th Cir. 1977) (en banc), cert. denied, 435 U.S. 1013, 98 S. Ct. 1887, 56 

L.Ed.2d 395 (1978). 

67 See La. Const. of 1974, art. 5, § 3 ("The supreme court shall be composed 
of a chief justice and six associate justices, four of whom must concur to 

render judgment. ..."). 
Defendants' fear may be largely for naught inasmuch as Louisiana state 

law appears not to require that there always be seven justices sitting for 
every case before the Louisiana Supreme Court. See Jackson v. United Gas Pub-
lic Service Co., 196 La. 1, 198 So. 633, cert. denied, 311 U.S. 686, 61 S. Ct. 

63, 85 L.Ed. 443 (1940). 



Calogero's present seat expires at the end of this year. This 

Court acknowledges the specter, but observes that a limbo status 

will exist whether the Court enjoins the upcoming election or 

not. If this Court enjoins the election, then the question of 

how to fill the vacancy under Louisiana Constitutional law ar-

ises.' If this Court does not enjoin the election, then the 

question of the legitimacy of the Supreme Court's seven-member 

composition arises. Regardless of the state constitutional pro-

visions, this Court has in any event the power under the Supremacy 

Clause to fashion both preliminary and final equitable relief that 

will both provide plaintiffs with a full and adequate remedy and 

protect other important state interests.' In sum, this specter 

does not strongly militate against an injunction. 

E. Exercise of Discretion  

Courts ought be wary of enjoining elections when the plain-

tiffs dash into court on the eve of an election, after the State 

has begun its electoral process and candidates have expended con-

GB While this Court expresses no authoritative position on the point at 
this time, this Court notes that La. Const. of 1974, art. 5, § 22(B) appears to 
provide fully for the contingency of any vacant seat on the supreme court. 

69 See, e.g., Katzenbach v. Morgan, 384 U.S. 641, 86 S. Ct. 1717, 16 L.Ed.2d 
828 (1966) (under the Supremacy Clause, the federal Voting Rights Act trumps 
any state constitutional provisions to the contrary); Kirkland v. New York  
State Dept. of Correctional Services, 628 F.2d 796, 801 (2d Cir. 1980) (power 

of a district court to fashion a remedy for discrimination "is a matter of 
federal law under the supremacy clause," not a matter of "compatibility" with 
state constitution), cert. denied sub nom. Fitzpatrick v. Kirkland, 450 U.S. 

980, 101 S. Ct. 1515, 67 L.Ed.2d 815 (1981). 



siderable time and money campaigning.' But this is not such a 

case. Plaintiffs here brought their suit a full two years before 

the upcoming election and have brought the instant motion so that 

there is even time to appeal this opinion before the three-day 

qualification period at the end of this month. Further, plain-

tiffs filed their lawsuit within three months of Thornburg, the 

first post-1982 amendment Supreme Court case on section 2. Point-

ing out at oral argument that Louisiana has had the same elective 

system for its justices since prior to the 1965 Voting Rights Act, 

defendants suggest that plaintiffs should have brought their ac-

tion much earlier and should have anticipated the likely delays 

from appellate review. While an earlier determination of these 

issues would have benefitted all concerned, the Court does not 

find plaintiffs' actions to be such that the Court should exercise 

its discretion to deny an injunction despite the plaintiffs' hav-

ing satisfied the four prerequisites for such. 

Chief Justice John A. Dixon Jr. has appeared in this matter 

as an amicus curiae and urges three reasons why this Court should 

not grant any injunction: (1) absent a final determination in any 

forum that the elective system violates federal law, "the Louisi-

ana Constitution should be respected"; (2) "the probability that 

the issuance of an injunction in this case will lead to the can-

cellation of numerous state elections scheduled in 1988"; and (3) 

"the issuance of an injunction in this case would ... also set a 

precedent which is likely to be followed by" other U.S. District 

See Oden v. Brittain, 396 U.S. 1210, 90 S. Ct. 4, 24 L.Ed.2d 32 (1969) 
(Black, J., in chambers) (denying application to enjoin upcoming election that - 

was less than 3 weeks away). 

-33-



• 

Courts. To accept the first point would be to foreclose the op-

tion of preliminary injunctions on federal constitutional issues 

(viz., Supremacy Clause issues); to accept this point would leave 

many a plaintiff without an adequate remedy. The second and third 

point suggest that this Court's nonbinding precedential authority 

will wreak havoc in the State's elective system. While this Court 

is aware that its opinion may well affect more than the two seats 

at issue in this case, this Court cannot conclude that the neces-

sary result should thus be a failure to act. In every case that 

comes before it, this Court attempts to administer the law in a 

"just, speedy, and inexpensive" fashion;" this case is no differ-

ent. If other courts believe this Court has erred, then they have 

a duty not to follow this Court's lead; if other courts believe 

that this Court has been persuasive and that the cases before them 

concern similar facts and equities, then they may, if they choose, 

follow this Court's course of action. 

In sum, the Court determines, in its discretion, that the 

injunction should issue." 

Accordingly, the Court hereby ORDERS that pending a final 

decision by this Court in this action and the entry of a future 

order scheduling elections for the affected Supreme Court justice-

71 Cf. F.R.Civ.P. 1. 

• 72 In its discretion under F.R.Civ.P. 65(c) and because defendants have not 

requested any security in the event the Court granted an injunction, the Court 

elects to require no security from plaintiffs. Corrigan Dispatch Co. v. Casa 

Guzman, S.A., 569 F.2d 300, 303 (5th Cir. 1978). 



ships, defendants Buddy Roemer in his official capacity as the 

Governor of Louisiana, W. Fox McKeithen in his official capacity 

as Secretary of the State of Lousiana, and Jerry M. Fowler in his 

official capacity as Commissioner of Elections of the State of 

Louisiana and their officers, agents, servants, employees, and 

attorneys are enjoined and prohibited from conducting any primary 

or general elections in the State of Louisiana to fill the posi-

tion of Justice on the Louisiana Supreme Court from the First 

Supreme Court District. 

New Orleans, Louisiana, this  7th  day of July, 1988. 

/s/ Charles Schwartz Jr. 
UNITED STATES DISTRICT JUDGE 

n 91X 
Amended nunc pro tunc, New Orleans, Louisiana, this  el04 a  day 

of July, 1988. 

et.AAJ-44S 
UNITED STATES DISTRICT-JUDGE