Clark v. Roemer Motion to Dismiss or Affirm

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Promotes Political Participation

    No. 90-952

In The

Supreme Court of the United States
October Term, 1990

--------------- «---------------

JANICE G. CLARK, ORSCINI L. BEARD,
EDDIE G. CRAWFORD, NORBERT C. RAYFORD, 

VOTER INFORMATION PROJECT, INC., LOUIS SCOTT, 
SYLVIA COOK, CONNIE SADLER,

TOM NELSON AND ALBERT RICHARD,
Appellants,

versus

CHARLES "BUDDY" ROEMER, GOVERNOR 
OF LOUISIANA; WILLIAM J. GUSTE, JR., 

ATTORNEY GENERAL OF LOUISIANA; FOX 
McKEITHEN, SECRETARY OF STATE OF THE STATE 

OF LOUISIANA, IN THEIR OFFICIAL 
CAPACITIES AS REPRESENTATIVES 

OF THE STATE OF LOUISIANA,
Appellees.

--------------- ♦---------------

On Appeal From The United States District 
Court For The Middle District Of Louisiana

--------------- ♦---------------

MOTION TO DISMISS OR AFFIRM
--------------♦--------------

R o bert  G . P ugh  
Counsel of Record 
R o bert  G. P ugh , J r .
Of the Law Firm of 
P u gh , P ugh  &  P ugh  

Commercial National Tower, Suite 2100 
333 Texas Street

Shreveport, Louisiana 71101-5302 
(318) 227-2270

(Additional Counsel On Inside Cover)
January 14th, 1991

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 
OR CALL COLLECT (402) 342-2831



J o h n  N. K en n ed y  
Special Counsel to the 

Governor 
T h o m a s A. C a sey  
Executive Counsel to the 

Governor
Office of the Governor 
Fourth Floor 
State Capitol Building 
Baton Rouge, Louisiana 

70804
(504) 342-7015
Attorneys For And 
On Behalf Of 
Charles "Buddy"
Roemer Governor 
Of Louisiana
M ich a el  H. R ubin  
C h ristin a  B. P eck  
R u bin , C urry, C olvin  &  

J oseph  
Ninth Floor 
One American Place 
Baton Rouge, Louisiana 

70825
(504) 383-9000
Attorneys For The 
Louisiana 
District Judges 
Association

K en n eth  C . D ejean  
First Assistant Attorney 

General
Louisiana Department of 

Justice
Office of the Attorney 

General 
Second Floor 
State Capitol 
Baton Rouge, Louisiana 

70804
(504) 342-7014
Attorney For And On 
Behalf Of William 
J. Guste, Jr. Attorney 
General Of Louisiana

C yn th ia  Y oung  R o u ceo u  
Special Counsel to the 
Secretary of State 
State of Louisiana 
Post Office Box 94125 
Baton Rouge, Louisiana 

70804
(504) 342-2065
Attorney For And On 
Behalf Of Fox 
McKeithen
Secretary Of State Of 
Louisiana



1

TABLE OF CONTENTS
Page

TABLE OF CONTENTS..................................................    i

TABLE OF AUTHORITIES............................................... ii

MOTION TO DISMISS OR AFFIRM.............................  1

STATEMENT OF THE CASE........................................... 2

A. The Voting Rights Act Section 2(b) Claim .. . .  2

B. The Voting Rights Act Section 5 Claim............ 4

ARGUMENT....................................................................  7

I. WHETHER THE THREE-JUDGE COURT 
ERRED IN PERMITTING ELECTIONS TO GO 
FORWARD UNDER UNPRECLEARED STAT­
UTES IS NOW MOOT......................................... 7

II. THE THREE-JUDGE COURT CORRECTLY 
RULED THAT PRECLEARANCE OF STAT­
UTES CREATING AN ULTIMATE NUMBER 
OF JUDICIAL SEATS IN A PARTICULAR 
JUDICIAL DISTRICT CONSTITUTES PRE­
CLEARANCE OF ALL JUDICIAL SEATS 
NECESSARY TO REACH THAT ULTIMATE
NUMBER ..........................................................   8

III. JUDGES WHO HAVE BEEN ELECTED 
SHOULD NOT BE THROWN OUT OF 
OFFICE.........................     21

CONCLUSION .............................      28



TABLE OF AUTHORITIES
Page

C a ses :

Allen v. Board of Elections, 393 U.S. 544, 89 S Ct 
817, 22 L.Ed.2d 1 (1969).................................................

Beer v. United States, 425 U.S. 130, 96 S.Ct. 1357, 47 
L.Ed.2d 629 (1976)............................................................

Berry v. Doles, 438 U.S. 190, 98 S.Ct. 2692, 57 
L.Ed.2d 693 (1978)................................................. 7, 22,

Brooks v. State Board of Elections, No. CV 288-146 
1989 W.L.180759 (S.D. Ga. Dec. 1, 1989), mod­
ified, (S.D. Ga. May 29 and June 25, 1990) (three- 
judge court), aff'd mem., Nos. 90-272 & 90-332,
59 U.S.L.W. 3293 (U.S. Oct. 15, 1990)........................

Butts v. City of New York, 779 F.2d 141 (2d Cir. 
1985), cert, denied, 478 U.S. 1021, 106 S.Ct. 3335,
92 L.Ed.2d 740 (1986).......................................

Clark v. Edwards, 725 F. Supp. 285 (M.D. La. 1988) . .3,

Clark v. Roemer, 88-3626 (5th Cir. 1988 unreported)___

Clark v. Roemer, 487 U.S. 1266, 109 S.Ct. 29, 101 
L.Ed.2d 979 (1988)............................................................

Clark v. Roemer, Order, October 19, 1990 (M.D. La. 
unreported)...................................................................4

Clark v. Roemer, __  F. Supp. ___ (M.D. La. 1990
unreported)...............................

Clark v. Roemer, 90-3785 (5th Cir. 1990) pending on 
appeal........................................................................

Clark v. Roemer, 59 U.S.L.W. 3361 (U.S. Nov. 13 
1990).....................................................................................

Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 
L.Ed.2d 662 (1974)......................................

22

17

23

. 7

28

18

. 3

. 3

18

18

. 4

. 6

13



Ill

TABLE OF AUTHORITIES -  Continued
Page

Georgia v. United States, 411 U.S. 526, 93 S.Ct. 1702,
36 L.Ed.2d 472 (1973)........................................................ 7

Haith v. Martin, 618 F. Supp. 410 (E.D.N.C. 1985), 
(three-judge court), aff'd mem. Martin v. Haith,
477 U.S. 901, 106 S.Ct. 3268, 91 L.Ed.2d 559 
(1986)................................................................................13, 14

Hunter v. City of Monroe Docket Number 2031 (W.D.
La. Nov. 7, 1990, unreported) (three-judge 
court) ...............................................  22, 24

Hunter v. McKeithen, (A-363) 59 L.W. 3391 (Nov. 26,
1990)..................................................................................22, 24

League of Latin American Citizens Council #4434 v.
William P. Clements, et al., 914 F.2d 620 (5th Cir.
1990) (en banc) ............................................... 3, 19, 22, 28

Martin v. Mabus, 700 F. Supp. 327 (S.D. Miss. 1988) . . . .  18

McCain v. Lybrand, 465 U.S. 236, 104 S.Ct. 1037, 79
L.Ed. 271 (1984) ...................................................  13, 14, 15

Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53
L.Ed,2d 745 (1977)............................. ........... .................... 7

Moore v. Leflore County Board of Election Commis­
sioners, 351 F. Supp. 848 (N.D. Miss. 1971)............... 7

NAACP v. Hampton County Election Comm'n, 470 
U.S. 166, 105 S.Ct. 1128, 84 L.Ed.2d 124 (1985)........7

Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27
L.Ed.2d 476 (1971)........................................................... 22

Richardson v. Ramirez, 418 U.S. 24, 94 S.Ct. 2655, 41 
L.Ed.2d 551 (1974) 13



IV

Scaggs v. Larsen, 396 U.S. 1206, 90 S.Ct. 5, 24
L.Ed.2d 28 (1969)........................................   7

Spallone v. United States, 493 U .S.___, 100 S.Ct. 625,
107 L.Ed.2d 644 (1990)........................................................ 7

Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct, 2752, 92 
L.Ed.2d 25 (1986).................    18

Tally v. Griffin, 429 U.S. 68, 97 S.Ct. 219, 50 L.Ed.2d
227 (1976)............................................................................ 13

United States v. County Commission, Hale County, 
Alabama, 425 F. Supp. 433 (S.D. Ala. 1977), aff'd 
mem., 430 U.S. 924, 97 S.Ct. 1540, 51 L.Ed.2d 768 
(1977)....................................................................................... 7

Wilson v. North Carolina State Board of Elections, 317 
F. Supp. 1299 (M.D.N.C. 1970)...................................... 8

C o n stitu tio n a l  a n d  S tatutory P ro visio n s:

F ed er a l :

28 U.S.C. § 1404................................................................  19

28 U.S.C. § 1406.....................     19

28 U.S.C. § 1631...........     19

28 U.S.C. § 1973c............................................................6, 8

28 U.S.C. § 2284....................................................................2

42 U.S.C. § 1973 [Voting Rights Act]............. passim

S tate:

Constitution of Louisiana, Art. 5, § 1 6 ....................... 20

LA. R.S. 13:582 .................................................................. 17

TABLE OF AUTHORITIES -  Continued
Page



V

LA. R.S. 13:621.............................................................. 9, 21

Acts 1956, Ex. Sess. No. 7, §1 ................................ 9

Acts 1966, No. 2 .......................................................... 9

Acts 1968, No. 464................................................... 12

Acts 1973, No. 117..  9

Acts 1974, No. 515.    20
Acts 1976, No. 46. ...... ...........................    9

Acts 1978, No. 39......................................   9

Acts 1982, No. 21................................................. .. .9, 12
Acts 1983, No. 226...........................................................  21
Acts 1987, No. 801. ...............................................................4

Acts 1990, No. 8 ...............       19

R eg u la tio n s:

28 C.F.R. ch. 1 (7-1-89 Edition) § 5 .56...........................19

R u les:

Rule 18.f  .6. of the Rules of The Supreme Court of
the United States..................................................................2

Federal Rules of Civil Procedure 23(a)..............................2
Federal Rules of Civil Procedure 23(b)(2)..........................2

Federal Rules of Civil Procedure 54(b)..............................3

T ra n script  R ec o r d :

Clark v. Roem.er, December 20, 1988, Page 11, Lines 
22-25 and Page 12, Lines 1 -1 3 .......................................25

TABLE OF AUTHORITIES -  Continued
Page



No. 90-952

In The

Supreme Court of the United States
October Term, 1990

JANICE G. CLARK, ORSCINI L. BEARD,
EDDIE G. CRAWFORD, NORBERT C. RAYFORD 

VOTER INFORMATION PROJECT, INC., LOUIS SCOTT 
SYLVIA COOK, CONNIE SADLER,

TOM NELSON AND ALBERT RICHARD,

Appellants,
versus

CHARLES "BUDDY" ROEMER, GOVERNOR 
OF LOUISIANA; WILLIAM J. GUSTE, JR., 

ATTORNEY GENERAL OF LOUISIANA; FOX 
McKEITHEN, SECRETARY OF STATE OF THE STATE 

OF LOUISIANA, IN THEIR OFFICIAL 
CAPACITIES AS REPRESENTATIVES 

OF THE STATE OF LOUISIANA,

Appellees.

On Appeal From The United States District 
Court For The Middle District Of Louisiana

--------------- #---------------

MOTION TO DISMISS OR AFFIRM

This is a direct appeal from an Order, rendered 
and entered on October 22nd, 1990,1 and an Opinion, 1

1 See Appendix to Jurisdictional Statement [hereinafter 
"App."] 68a through 80a.

1



2

rendered and entered on October 31st, 1990,2 by a district 
court of three judges, specifically constituted pursuant to 
28 U.S.C. § 2284,

Appellees, pursuant to Rule 18.1.6. of the Rules of 
the Supreme Court of the United States, move the Court 
to dismiss the appeal herein or, in the alternative, to 
affirm the final judgment and decree of the three-judge 
court on the ground that it is manifest that the questions 
on which this case depends are so unsubstantial as not to 
need any further argument.

--------------- $---------------

STATEMENT OF THE CASE

This appeal involves questions under Section 5 of the 
Voting Rights Act. Because the same suit involves Section 
2(b) of the Voting Rights Act and because most of the 
litigation thus far has involved that Section, the pro­
cedural history of this case requires an initial discussion 
of the Section 2(b) claims.

A. The Voting Rights Act Section 2(b) Claim

Appellants brought this lawsuit in 1986 in the United 
States District Court for the Middle District of Louisiana 
as a class action pursuant to Rule 23(a) and (b)(2) of the 
Federal Rules of Civil Procedure. The class consisted of 
all black voters in the State of Louisiana. The action 
challenged the at-large voting system for the election of 
District, Family Court and Courts of Appeal judges as

2 See App. la  through 67a.



3

being in violation of the 1965 Voting Rights Act, as 
amended, because, allegedly, the use of an at-large sys­
tem results in a denial or abridgment of the right to vote 
of appellants and all those similarly situated on account 
of race and color.

The district court ultimately held in August 1988, 
that the at-large judicial election system did violate Sec­
tion 2 of the Voting Rights Act. Clark v. Edwards, 725 F. 
Supp. 285 (M.D. La. 1988). The district court enjoined 
judicial elections which were scheduled for Fall, 1988. 
This injunction was overturned by the United States 
Court of Appeals for the Fifth Circuit. Clark v. Roemer, 
88-3626 (5th Cir. 1988 unreported). An Application for 
Stay to this Court was denied by Circuit Justice White. 
When the Application was resubmitted to Justice Mar­
shall, he submitted it to the full Court, which once again 
denied the stay. Clark v. Roemer, 487 U.S. 1266, 109 S.Ct. 
29, 101 L.Ed.2d 979 (1988).

In February, 1990, the district court held a remedy 
trial, ultimately ordering subdistricting in nine District 
Courts, the Family Court in East Baton Rouge Parish, and 
in a district of one Court of Appeal. The district court 
reversed its earlier decision and held that violations had 
not been proven in 54 districts.

On September 28, 1990, the Fifth Circuit rendered its 
en banc decision in the case of League of Latin American 
Citizens Council #4434 v. William P. Clements, et al., 914 
F.2d 620 (5th Cir. 1990) (en banc), holding that Section 2(b) 
of the Voting Rights Act does not apply to the judiciary. 
The district court in this case then granted a Rule 54(b) 
motion filed by appellees dismissing:



4

plaintiffs' claim that "the at-large election 
scheme of electing Appeal, Family, and District 
Court judges in the State of Louisiana 
unlawfully dilutes black voting strength and 
results in the denial of plaintiffs' opportunity to 
participate equally in the electoral process and 
to elect judges of their choice, in violation of 
Section 2, of the Voting Rights Act, 42 U.S.C. 
1973."

Clark v. Roemer, Order, October 19, 1990 (M.D. La. unre­
ported). This decision was appealed by appellants to the 
Fifth Circuit and docketed under 90-3785. Appellants 
then filed a petition for a writ of certiorari, before judg­
ment, to this Court. No. 90-898. This petition is pending.

B. The Voting Rights Act Section 5 Claim

The appellants also asserted in their Complaint and 
amendments thereto that certain Louisiana statutory pro­
visions creating additional judgeships had not been pre­
cleared by the Justice Department pursuant to Section 5 
of the Voting Rights Act. Although the lawsuit was filed 
in 1986, for four years the only action taken by appellants 
regarding the Section 5 claims was to convene a three- 
judge court, which action occurred two years after filing 
of the Complaint.3 In July, 1990, four years after filing of 
the Complaint, the appellants moved to submit the Sec­
tion 5 claims to a three-judge court. The court was

3 At that time the three-judge court enjoined five pending 
judicial elections provided for under Louisiana Acts 1987, No. 
801. Three of those judgeships continue to be subject to that 
injunction.



5

composed of Circuit Judge Davis, Chief Judge Parker,4 
and Judge Polozola.

Well over fifty pleadings and copious memoranda 
were submitted to the three-judge court. On October 22, 
1990, the three-judge court held its second of two hear­
ings concerning whether to halt the pending 1990 judicial 
elections. In an order issued that day, October 22, 1990, 
App. 68a, and in an opinion issued October 31, 1990, the 
three-judge court ruled that the elections would go for­
ward, App. la.

The order and opinion addressed elections to be held 
under four different categories of statutes. First, elections 
for judgeships previously precleared or which did not 
require preclearance would take place. Opinion of the 
Three-Judge Court (October 31, 1990), App. 12a-13a. Sec­
ond, the three-judge court held that a number of statutes 
creating judicial positions had been precleared, ruling 
"that when 'the Attorney General cleared statutes creat­
ing an ultimate number of judicial seats in a particular 
judicial district, that preclearance constituted approval of 
all judicial seats necessary to reach the ultimate number 
of judicial positions in the district.' " Opinion of the 
Three-Judge Court (October 31, 1990), App. 13a. Third, 
the three-judge court allowed elections to proceed for 
certain other judgeships which had not been precleared 
but for which the three-judge court had allowed qualify­
ing and campaigning. Opinion of the Three-Judge Court 
(October 31, 1990), App. 14a-15a. Judges elected to these

4 Chief Judge Parker has presided over the district court 
proceeding during the entire history of this case, including two 
lengthy trials.



6

positions would serve provisionally pending further 
orders of the three-judge court. Opinion of the Three- 
Judge Court (October 31, 1990), App. 15a-16a. Finally, the 
three-judge court enjoined certain other elections for 
which the three-judge court had not permitted qualifying 
to reopen since the qualification had originally occurred 
more than two years before. Opinion of the Three-Judge 
Court (October 31, 1990), App. 17a n. 24. The three-judge 
court held that within ninety days the State of Louisiana 
must either obtain preclearance of the unprecleared 
judgeships or file a declaratory action with the United 
States District Court for the District of Columbia under 
the provisions of 28 U.S.C. § 1973c, failing which the 
judges provisionally elected would be automatically 
removed from office. Opinion of the Three-Judge Court 
(October 31, 1990), App. 16a-17a.

On October 29, 1990, appellants filed an application 
for injunction pending appeal to this Court. On Novem­
ber 2, 1990, this Court enjoined the elections which, the 
three-judge court held, had not been precleared. Clark v. 
Roemer, 59 U.S.L.W. 3361 (U.S. Nov. 13, 1990). The injunc­
tion was conditioned upon timely filing of a jurisdictional 
statement in this Court. This Court refused to overturn 
the three-judge court's order holding that approval of 
later statutes increasing the number of judges necessarily 
precleared earlier statutes that involved the number of 
judges. This Court also refused to remove the judges who 
were either elected on October 6, 1990, or who had not 
drawn opposition for the October 6, 1990 election.



7

ARGUMENT
I. WHETHER THE THREE-JUDGE COURT ERRED IN 

PERMITTING ELECTIONS TO GO FORWARD 
UNDER UNPRECLEARED STATUTES IS NOW 
MOOT.

Appellants first argue that the three-judge court 
erred in allowing November 6 and December 8, 1990 
elections to be scheduled for positions which the three- 
judge court held had not been precleared. Appellees 
believe that the three-judge court correctly balanced the 
"interest of state and local authorities in managing their 
own affairs consistent with the Constitution" with the 
voting rights of the appellants. See Spallone v. United
States, 493 U.S. ___, ___, 100 S.Ct, 625, 107 L.Ed.2d 644,
655 (1990), quoting Milliken v. Bradley, 433 U.S. 267, 280-81, 
97 S.Ct. 2749, 53 L.Ed.2d 745, 756 (1977). Ample precedent 
for allowing the elections to take place existed under such 
precedents as Brooks v. State Board of Elections, No. CV 
288-146, 1989 W.L. 180759 (S.D. Ga. Dec. 1, 1989), modified, 
(S.D. Ga. May 29 and June 25, 1990) (three-judge court), 
aff'd mem., Nos. 90-272 & 90-332, 59 U.S.L.W. 3293 (U.S. 
Oct. 15, 1990); NAACP v. Hampton County Election 
Comm’n, 470 U.S. 167, 105 S.Ct. 1128, 84 L.Ed.2d 124 
(1985); Berry v. Doles, 438 U.S. 190, 98 S.Ct. 2692, 57 
L.Ed.2d 693 (1978); United States v. County Commission, 
Hale County, Alabama, 425 F. Supp. 433 (S.D. Ala. 1977), 
aff'd mem., 430 U.S. 924, 97 S.Ct. 1540, 51 L,Ed.2d 768 
(1977); Georgia v. United States, 411 U.S. 526, 93 S.Ct. 1702, 
36 L.Ed.2d 472 (1973); Scaggs v. Larsen, 396 U.S. 1206, 90 
S.Ct. 5, 24 L.Ed.2d 28 (1969); Moore v. Leflore County Board 
of Election Commissioners, 351 F. Supp. 848 (N.D. Miss.



8

1971); Wilson v. North Carolina State Board of Elections, 317 
F. Supp. 1299 (M.D.N.C. 1970).

Despite such precedents, this Court enjoined the 
November 6 and December 8, 1990 elections for these 
unprecleared judgeships. Both dates have now passed 
without the elections taking place. Louisiana will be 
timely filing a declaratory action with the United States 
District Court for the District of Columbia under the 
provisions of 28 U.S.C. § 1973c. Consequently, although 
the State of Louisiana disagrees with this Court's reversal 
of the three-judge court order allowing these elections in 
the Fall of last year, the question is now moot. II.

II. THE THREE-JUDGE COURT CORRECTLY RULED 
THAT PRECLEARANCE OF STATUTES CRE­
ATING AN ULTIMATE NUMBER OF JUDICIAL 
SEATS IN A PARTICULAR JUDICIAL DISTRICT 
CONSTITUTES PRECLEARANCE OF ALL JUDI­
CIAL SEATS NECESSARY TO REACH THAT 
ULTIMATE NUMBER.

The three-judge court correctly concluded that a 
number of additional judgeships were precleared because 
the Justice Department had precleared statutes for an 
ultimate number of judges that necessarily included those 
additional judgeships. An example of this situation is 
Caddo Parish, the First Judicial District, where the fol­
lowing pattern occurred:



9

DIVI- PRECLEARANCE
SION ADDED REQUESTED5 GRANTED6 DENIED7

A NO
B NO
C NO
D NO
E Act 2 of 1966 YES 8/18/86
F Act 117 of 1973 YES 9/23/88
G Act 46 of 1976 YES 8/11/76
H Act 39 of 1978 YES 9/20/78
I Act 21 of 1982 YES 12/2/82

The three-judge court deemed it nonsensical that adding
Judge No. 5 ("E") to the first four judges was permissible, 
and likewise adding Judges No. 7, No. 8, and No. 9 ("G, H, 
and I") to the existing judgeships was permissible, but that 
somehow adding Judge 6 (Division "F") to Judges 1, 2, 3, 4 
and 5 was objectionable. The three-judge court held as fol­
lows:

We find that when the Attorney General precleared 
statutes creating an ultimate number of judicial 
seats in a particular judicial district, that pre­
clearance constituted approval of all judicial seats 
necessary to reach the ultimate number of judicial 
positions in that district. . . .  We reach this conclu­
sion because each of the Acts of the legislature

5 Acts 1956, Ex. Sess. No. 7, § 1, in amending former R.S. 
13:621, provided that the First Judicial District should have 
four judges. This Act thus predated the 1965 Voting Rights Act.

6 The preclearance letters by the U.S. Department of Jus­
tice are reproduced and as such appear in the Appendix to this 
Motion pages 1 through 7.

7 This letter is reproduced beginning at App. 108a.



10

which added a new division in Caddo Parish 
provided that the Act increased the number of 
judges in the district from an existing number to 
a new number. When the Attorney General pre­
cleared seven judicial positions in Caddo Parish 
at the time Division G was added, he thereby 
expressly approved the first six positions, which 
included Division F. Contrary to plaintiffs' argu­
ment, we find that there was express approval 
by the Attorney General for those judicial posi­
tions set forth in Part I of our October 22, 1990, 
order. The language of the various acts submit­
ted to the Attorney General, as well as the let­
ters submitted by the State of Louisiana seeking 
preclearance, support this conclusion. Thus, the 
change submitted to the Attorney General is not 
only the amendment, but the entire act as pas­
sed by the legislature. When the Attorney Gen­
eral approves the new act, he not only approves 
the amended portion but necessarily approves 
the older, reenacted part, which forms part of 
the new act. Thus, when an act provides for a 
certain number of judicial positions, approval of 
that act must include all of the judicial positions 
necessary to reach that number.

In determining whether the preclearance 
sought by the State of Louisiana was proper 
within the meaning of Section 5 of the Voting 
Rights Act of 1965, the Court must determine 
whether the submission was in an "unam­
biguous and recordable manner" and whether 
the submission was "in fact evaluated" by the 
Attorney General. The Court finds that the evi­
dence presented in this case does show that the 
submissions were made to the Attorney General 
in an unambiguous manner, and he approved 
the various increases in the number of judges to 
be added to each of the districts set forth in Part 
I of our October 22 order.



11

Opinion of the Three-Judge Court (October 31, 1990), 
App. 24a -  29a.

The inconsistencies in the approach by the Justice 
Department were not limited to the First Judicial District. 
Other examples are listed below:

Sixteenth Judicial District -  After approving and 
preclearing judgeships for Divisions "E", cre­
ated in 1977, the Justice Department objected to 
a judgeship for Division "D" 13 years earlier.

Twenty-First Judicial District -  After approving 
and preclearing a judgeship for Division "E", 
the Justice Department objected to a judgeship 
created for Division "D" 16 years earlier.

Twenty-Third Judicial District -  After approving 
and preclearing a judgeship for Division "D", 
the Justice Department objected to a judgeship 
created for Division "C" 22 years earlier.

Twenty-Seventh Judicial District -  After approv­
ing and preclearing a judgeship for Division 
"D", the Justice Department objected to a judge- 
ship created for Division "C" 19 years earlier.

Twenty-Ninth Judicial District -  After approv­
ing and preclearing a judgeship for Divisions 
"D" and "E", the Justice Department objected to 
a judgeship created for Division "C" 20 years 
earlier.

Thirty-Ninth Judicial District -  After approving 
a Special Election for a judge, the Justice Depart­
ment objected 11 years later to the boundaries 
within which this judge was to sit.

After considering these and many other anomalies, 
and after reviewing the Louisiana statutes and the



12

submission letters, the three-judge court concluded that 
all of these seats had been precleared.8

The eminent good sense of the three-judge court's 
decision is demonstrated by the absurdity of the alterna­
tive. Take for example the Twenty-Third Judicial District. 
Judgeships "A" and "B" predated the Voting Rights Act 
of 1965, so that no preclearance was required. Judgeship 
“C” was added by Acts 1968, No. 464. Preclearance was 
not sought until 1988, at which time preclearance was 
rejected. Letter of September 23, 1988, Appendix 108a. 
Judgeship "D" was added by Acts 1982, No. 21, for which 
preclearance was sought and was received on December 
2, 1982. If the Justice Department is right, there cannot be 
four judges in the Twenty-Third Judicial District because 
preclearance of the third judge never occurred. Addi­
tionally, arguably there cannot be three judges in the

8 Significantly, substantially all of the latest Acts were 
submitted to and approved by the Justice Department. How­
ever, after the filing of this litigation, the Justice Department 
reversed its attitude and policies, and in doing so, refused to 
preclear any new statutes and refused to preclear Acts passed 
as long as 20 years ago. In its October 31, 1990 Opinion, the 
Three-Judge Court stated:

The evidence submitted by the parties indicates 
that the Attorney General approved the method Lou­
isiana used for adding judges approximately 81 
times. Preclearance was denied on only three dates: 
September 23, 1988; May 12, 1989; and September 17,
1990. These denials came after Judge Parker had 
rendered his decision in the Section 2 case on August 
15, 1988.

Opinion of the Three-Judge Court (October 31, 1990), App. 29a 
n. 41.



13

Twenty-Third Judicial District because the Justice Depart­
ment has refused to preclear having three judges in the 
Twenty-Third Judicial District. Thus, there can only be 
two judges in the Twenty-Third Judicial District, one-half 
the number which Louisiana needs.9

The appellants cite McCain v. Lybrand, 465 U.S. 236, 
104 S.Ct. 1037, 79 L.Ed.2d 271 (1984), for the proposition 
that preclearance of subsequent additional judgeships 
does not constitute preclearance of an earlier additional 
judgeship.10 McCain, however, is inapplicable because

9 Indeed, according to the Justice Department's logic, 
arguably the answer is that there can be no judges in the 
Twenty-Third Judicial District. As the Justice Department 
approved having four judges in that district, having only two 
judges would be a change from what has been precleared, 
which change would itself require preclearance. Given that the 
Justice Department has refused for the past two years to pre­
clear any additional judgeship in Louisiana unless the district 
involved is majority black (such as Orleans) or unless a black 
happens to win the seat involved, see pages 19-20 infra, pre­
sumably the Justice Department would not preclear having one 
or two judges in that district, so there would be no judges in 
the Twenty-Third Judicial District.

Appellants also cite this Court's summary affirmance of 
Haith v. Martin, 618 F. Supp. 410 (E.D.N.C. 1985) (three-judge 
court), aff'd mem. Martin v. Haith, 477 U.S. 901, 106 S.Ct. 3268, 
91 L.Ed.2d 559 (1986). Of course, a summary affirmance is "not 
of the same precedential value as would be an opinion of the 
court treating the question on the merits." Edelman v. Jordan, 
415 U.S. 651, 671, 94 S.Ct. 1347, 39 L.Ed.2d 662, 677 (1974); 
accord, Tully v. Griffin, 429 U.S. 68, 74, 97 S.Ct. 219, 50 L.Ed.2d 
227, 233 (1976); Richardson v. Ramirez, 418 U.S. 24, 83 n. 27, 94 
S.Ct. 2655, 41 L.Ed.2d 551, 587 n. 27 (1974) (Marshall, Douglas, 
& Brennan, )., dissenting). This Court in Haith never addressed

(Continued on following page)



14

there the earlier, unprecleared change involved a radical 
alteration of the type of government in a particular 
county, while the later, precleared change involved an 
increase in the number of members in the governing 
body. The South Carolina General Assembly had enacted 
a 1966 act, totally revising Edgefield County's system of 
government. 465 U.S. at 239, 104 S.Ct. 1037, 79 L.Ed,2d at 
275. The act combined legislative and administrative 
powers in a brand-new council. Although the council 
members were required to reside in a particular district, 
they were elected at-large. The act also provided for two 
year terms and set forth the method of electing the coun­
cil chairman. The 1966 act was never precleared. In 1971 
the General Assembly passed a new act to increase the 
number of council members and districts, necessitating 
new district boundaries. 465 U.S. at 240, 104 S.Ct. 1037, 79 
L.Ed.2d at 276. This act was precleared. 465 U.S. at 241, 
104 S.Ct. 1037, 79 L.Ed.2d at 276. This Court held that 
preclearance of the later act did not constitute pre­
clearance of the former act. The Attorney General was

(Continued from previous page) 
the argument relied on by the three-judge court in the instant 
case. Indeed, this argument is never mentioned in the three- 
judge court opinion in Haith. Finally, it should be noted that 
the three-judge court in the instant case based its decision on a 
careful analysis of the various acts in question and of the 
preclearance submission letters sent by the State of Louisiana 
to the Attorney General. Opinion of the Three-Judge Court 
(October 31, 1990), App. at 26a -  27a. For that reason the three- 
judge court concluded "[i]t cannot be said that the submission 
by the State of Louisiana was ambiguous concerning the scope 
of the request." Opinion of the Three-Judge Court (October 31, 
1990), App. at 26a n. 38.



15

focusing on the change in boundaries and in the number 
of seats, not on the dramatic systemic change in the type 
of government made by the 1966 act. 465 U.S. at 252, 104 
S.Ct. 1037, 79 L.Ed.2d at 283. While in McCain the 
unprecleared act in question created a completely new 
form of government, here the unprecleared acts merely 
provided for additional judgeships and stated that the 
total number of judgeships would be the increased 
number. Any Louisiana statute submitted to the Justice 
Department necessarily showed the effect of the new 
judgeship and provided for the total number of judge- 
ships in the judicial district, and the preclearance of the 
later statute of necessity precleared the earlier added 
seat.

Appellants, at pages 6-7 of their Jurisdictional State­
ment, attempt to reurge their Motion before the three- 
judge court for reconsideration and clarification of the 
October 22nd Order. For the following reasons given by 
the three-judge court in its October 31st Opinion, the 
Motion was denied:

IV. PLAINTIFFS' MOTION FOR RECON­
SIDERATION AND CLARIFICATION

The plaintiffs have filed a motion seeking to 
have the Court reconsider its October 22 order 
insofar as it applies to certain judgeships set 
forth in Part I of the Court's order. In Part I of 
the order of October 22, the Court set forth 
those judicial positions which the Court found 
to have been precleared by the Attorney Gen­
eral. Specifically, plaintiffs ask the Court to 
review its decision on the following judicial 
positions: 10th District, Divisions A and B, and 
39th District, Division A; all judgeships in the



16

First Circuit Court of Appeal; and the at-large 
judgeships in the Second and Third Circuits.73

73 Plaintiffs also contend that this Court pre­
cleared judgeships in the 17th and 32nd judicial dis­
tricts even though there were no Section 5 objections 
made on those two districts. Whether there is an 
objection filed or not, the Court's decision that these 
judicial positions have been precleared by the Attor­
ney General is correct.

The Court has again reviewed the record 
and finds that its decision which held that the 
judicial positions set forth in Part I of its Octo­
ber 22 order have been precleared by the Attor­
ney General is correct for the reasons previously 
cited in this opinion. We also find that the Attor­
ney General specifically precleared the division 
of the 10th and 39th Judicial Districts into two 
separate districts when he approved judicial 
positions for both districts. Finally, we conclude 
that when the Attorney General precleared Act 3 
of the 1981 Louisiana Legislature on August 26, 
1981, he expressly precleared the number of 
judges and divisions for each of the circuits.74

74 The state's six page letter of July 29, 1981, to 
the Attorney General explained in detail the changes 
made by Act 3 of 1981. On page 4 of the letter, it is 
stated: "Prior law provided for alphabetical divisions 
(A, B, C, . . . ) within each district of the First Circuit. 
New law provides the same for all court of appeal 
circuits." (emphasis in original).11 11

11 This six page letter dated July 29, 1981 to the 
U.S. Department of Justice and the August 26, 1981 
response thereto by the U.S. Department of Justice 
are reproduced and appear in the Appendix to this 
Motion pages 8 through 19.



17

The Court on its own motion does find that 
one judicial position which the Court initially 
found to be unprecleared has in fact been 
expressly precleared by the Attorney General.
This district is District 20, Division B. Exhibit 
D-4, which was filed in the record, clearly shows 
that the split of District 20 into two parishes and 
the creation of Division B was expressly submit­
ted and approved by the Attorney General. 
Therefore, the Court hereby amends its October 
22 order to delete District 20, Division B from 
the unprecleared list in Part II of the order. The 
Court orders this judicial position to be included 
in Part I of the October 22 order which sets forth 
precleared judicial positions.

Opinion of the Three-Judge Court (October 31, 1990), 
App. 50a through 53a.

Appellants also contend that subsequent pre­
clearance in this case is improper because of the possi­
bility of an earlier "stated discriminatory purpose" in one 
of the prior Louisiana statutes. Of course, here there are 
no pleadings or evidence in this Section 5 case of any 
stated discriminatory purpose in the addition of much- 
needed judgeships in the State of Louisiana. Indeed, the 
Justice Department has admitted that its objection is "not 
to the number of judges per se", Letter of October 6, 1990, 
App. 169a, and that it does not question the State of 
Louisiana's "need for or purpose in creating new judge- 
ship positions." Letter of September 17, 1990, App. 168a.

Instead, the Justice Department has announced that it 
is opposed to Louisiana's at-large system of electing 
judges, a system in effect since 1946, see LA. R.S. 
13:582-585, predating by two decades the Voting Rights 
Act of 1965. See Beer v. United States, 425 U.S. 130, 139, 96



18

S.Ct. 1357, 47 L.Ed.2d 629, 638 (1976). The Justice Depart­
ment has been dragging its feet on preclearance requests 
because it wants to uproot and destroy the entire Louisi­
ana judicial election system, replacing it with another 
"system" such as limited voting.12 Letter of September 
17, 1990, App. 158a.13 The Justice Departm ent's 
heavy-handed action in refusing to preclear additional 
judgeships so as to attempt to force Louisiana to change 
its "system" of electing judges ignores the decision in this 
case that the Louisiana "system" of electing judges can­
not violate Section 2 of the Voting Rights Act, ignores the 
holding in Thornburg v. Gingles, 478 U.S. 30, 56, 106 S.Ct. 
2752, 92 L.Ed.2d 25, 50 (1986), that any remedy under 
Section 2 must be district-specific and not systemic,

12 Under limited voting a voter can only vote for some of 
the positions on the ballot. Such a system would itself appear 
to violate the Voting Rights Act. 42 U.S.C. § 1973n. Limited 
voting was rejected as a judicial remedy in Voting Rights Act 
cases, including Martin v. Mabus, 700 F. Supp. 327 (S.D. Miss. 
1988). Judge Parker rejected it as a remedy in this case, after 
hearing uncontested testimony that it exists in only approx­
imately 200 of the more than 86,000 local governmental units in 
this country.

13 The Justice Department cited as authority Judge Par­
ker's statement in his opinion on liability that the solution was 
to "revise the [judicial election] system -  to cast about for 
alternative procedures under which black voters would have a 
better chance to elect judicial candidates of their choice." Clark 
v. Edwards, 725 F. Supp. 285, 303 (M.D. La. 1988). Judge Parker 
reversed himself after the remedy trial, holding that the court 
"lacks the power to impose a systemic remedy upon the state 
and that any remedy is indeed limited to the 'guilty' districts."
Clark v. Roemer, ___ F. Supp. ___ (M.D. La. 1990), not yet
reported.



19

ignores the Fifth Circuit's decision in League of Latin 
American Citizens Council #4434 v. William P. Clements, et 
al., 914 F.2d 620 (5th Cir. 1990) (en banc), and violates the 
Justice Department's internal rule requiring that pre­
clearance determinations be guided by relevant federal 
judicial decisions. See 28 C.F.R. ch. 1 (7-1-89 Edition) 
§ 5.56.

Indeed, if there is any "discriminatory purpose" in 
this case, it is the "discriminatory purpose" evidenced by 
the Justice Department in its preclearance decisions 
involving Louisiana judgeships.14 In two letters dated the 
same day the Justice Department stated that portions of 
Act 8 of 1990 adding judgeships would not be precleared, 
but other portions of the same statute adding judgeships 
were precleared. Compare Letter of September 17, 1990, 
App. 142a, 160a, 166a with Letter of September 17, 1990, 
App. 136a. Even stranger is the case of the Sixth Judicial 
District. In September 1990 the Justice Department 
refused to preclear an additional judgeship for that judi­
cial district. Letter of September 17, 1990, App. 163a. 
When an election was held in that district on October 6,

14 Appellees filed in the three-judge court a motion chal­
lenging the constitutionality of the Justice Department's appli­
cation of Section 5 to these Louisiana judgeships. The motion 
states that the Justice Department has precleared every judicial 
act of Alabama and Texas, while refusing to preclear Louisi­
ana's judicial acts, even though the judicial election systems in 
the three states are precisely the same: i.e., at-large, designated 
post, majority vote. On January 10,1990, Appellees moved that 
this motion be transferred to the United States District Court 
for the District of Columbia, pursuant to 28 U.S.C. §§ 1404, 
1406, and 1631, as that Court will be hearing the declaratory 
judgment action concerning preclearance of these Louisiana 
judgeships.



20

1990, pursuant to the three-judge court order, a black 
happened to win the election. Thereafter, on November 
20, 1990, the Justice Department precleared the previ­
ously unapprovable seat even though no request for pre­
clearance of that seat was pending. Letter of November 20, 
1990, (included herein as App. 20).

The judgeship involved in the Sixth Circuit was for 
the Section B judicial position. This judgeship was autho­
rized by Acts 1974, No. 515. This Act contained precisely 
the same language as that of all other acts of the Legisla­
ture creating judgeship positions, i.e. "the (number) judi­
cial district shall have (number) judges." This Act is 
reproduced, and as such included herein, as App. 22-26. 
It is difficult to perceive how an individual could serve in 
this unprecleared judgeship seat for 15 or 16 years, yet 
the successor in office immediately serves in what is now 
a precleared judgeship seat. Their constitutional powers 
were the same — while sitting as a district court they 
each had exclusive original jurisdiction of all civil and 
criminal matters. They had exclusive original jurisdiction 
of felony cases and of cases involving title to immovable 
property; the right to office or other public position; civil 
or political rights; probate and succession matters; the 
state, a political corporation, or political subdivisions, or 
a succession, as a defendant; and the appointment of 
receivers or liquidators for corporations or partnerships. 
Constitution of Louisiana 1974 Art. 5, § 16.

Clearly, the Justice Department does not believe that 
the addition of vitally needed judgeships in a multi­
member judicial district is discriminatory. Instead, the 
Justice Department disagrees with the Louisiana at-large



21

system of electing judges (even though the system existed 
for two decades before the Voting Rights Act of 1965) 
except, of course, where the at-large system happens to 
result in the election of minority judges.

Given the absence of any discriminatory purpose and 
given that a statute providing for eleven judges in a 
judicial district necessarily means that there are one-two- 
three-four-five-six-seven-eight-nine-ten-eleven judges in 
that district,15 the three-judge court correctly concluded 
that the statutes at issue had been precleared.

III. JUDGES WHO HAVE BEEN ELECTED SHOULD 
NOT BE THROWN OUT OF OFFICE

Finally, appellants finally argue that judges who were 
unopposed and elected or who won in elections held on 
October 6, 1990, should be thrown out of office. The 
appellants never sought an injunction to prevent these 
elections from occurring and should not now be able to 
retroactively invalidate these elections. Nor have

15 For example, Acts 1978, No. 39, amended LA. R.S. 
13:621.15 to increase judges in the Fifteenth Judicial District 
from 6 to 7, and this was precleared on September 20, 1978. 
Acts 1982, No. 21, amended LA. R.S. 13:621.15 to increase 
judges in the Fifteenth Judicial District from 9 to 10, and was 
precleared on December 2, 1982. Acts 1983, No. 226, amended 
LA. R.S. 13:621.15 to increase judges in the Fifteenth Judicial 
District from 10 to 11 and this was precleared on October 7, 
1983. Yet, after preclearing the change from 6 judges to 7 
judges; preclearing the change from 9 judges to 10 judges; and 
preclearing the change from 10 judges to 11 judges; the Justice 
Department objected to earlier increases from 4 judges to 5 
judges; 5 judges to 6 judges; and 7 judges to 9 judges.



22

appellants sought relief in the three-judge court as to 
these judgeships.

This Court in the past has refused to set aside elections 
held under statutes that had not been precleared, holding 
that "[i]n certain circumstances . . . it might be appropriate to 
enter an order affording local officials an opportunity to seek 
federal approval and ordering a new election only if local 
officials fail to do so or if the required federal approval is not 
forthcoming." Perkins v. Matthews, 400 U.S. 379, 396-97, 91 
S.Ct. 431, 27 L.Ed.2d 476, 489-90, (1971); accord, Berry v. Doles, 
438 U.S. 190, 98 S.Ct. 2692, 57 L.Ed.2d 693 (1978); Allen v. 
Board of Elections, 393 U.S. 544, 571-72, 89 S.Ct. 817, 22 
L.Ed.2d 1, 20-21 (1969)d6 16

16 One of the factors to be considered in determining 
whether to invalidate elections is "whether it was reasonably 
clear at the time of the election that the changes were covered 
by § 5." Perkins v. Matthews, 400 U.S. 379, 396, 91 S.Ct. 431, 27 
L.Ed.2d 476, 489 (1971). The United States Court of Appeals for 
the Fifth Circuit has stated that § 2 of the Voting Rights Act 
does not apply to the judiciary. League of United Latin American 
Citizens Council # 4434 v. Clements, et al., 914 F.2d 620 (5th Cir. 
1990) ten banc). The three-judge court held in this case that § 5 
of the Voting Rights Act is applicable to certain additional 
judgeships, but that pending elections for those judgeships 
should nevertheless go forward. This Court, however, enjoined 
such elections. The three-judge court in Hunter v. City of Mon­
roe, Docket 90-2031 (W.D. La. November 7, 1990, unreported) 
(three-judge court) held that § 5 of the Voting Rights Act does 
not apply to the "addition of more judges, to be elected by the 
same voters who elect the present judges." Opinion of Three- 
Judge Court, November 7, 1990. Id. Slip Opinion p. 3. This 
Court refused to grant a request by the petitioners in that case 
to prevent the elected judges from taking their seats. Hunter v. 
McKeithen, (A-363) 59 L.W. 3291 (Nov. 26, 1990). "Given these 
varying decisions, it cannot be said that the law in this area is 
"reasonably clear."



23

In Berry v. Doles, 438 U.S. 190, 98 S.Ct. 2692, 57 
L.Ed.2d 693 (1978), an action was filed in a three-judge 
court shortly before a primary election to enforce the 
requirements of § 5 and to prevent the pending election. 
The requests for declaratory and injunctive relief were 
not acted upon until after the scheduled primary election 
and the subsequent run-off election. The three-judge 
court afforded prospective relief only by enjoining fur­
ther enforcement of the statute but did not set aside the 
results of the elections. On appeal, this Court refused to 
void the elections, holding:

We conclude that the requirement of federal 
scrutiny imposed by § 5 should be satisfied by 
appellees without further delay. Accordingly, 
we adopt the suggestion of the United States 
that the District Court should enter an order 
allowing appellees 30 days within which to 
apply for approval of the 1968 voting change 
under § 5. If approval is obtained, the matter 
will be at an end. If approval is denied, appel­
lants are free to renew to the District Court their 
request for simultaneous election of all members 
of the Board at the 1978 general election.

438 U.S. at 192-93, 98 S.Ct. 2692, 57 L.Ed.2d 693, 696.

Even more recently, in October, 1990, a three-judge 
court refused to enjoin plaintiffs' request to enjoin a City 
Court election in Monroe, Louisiana, based on the failure 
to obtain preclearance. Docket 90-2031 (W.D. La. Novem­
ber 7, 1990, unreported) (three-judge court). The plaintiffs 
in that case did not appeal the denial of the injunction to 
this Court. Instead, two weeks after the election, they 
filed a Motion for Reconsideration, Certification, and 
Comprehensive Relief. The three-judge court allowed cer­
tification of the winners. Thereafter, the plaintiffs filed an



24

Application for Stay and Injunction Pending Appeal with 
this Court, which application sought to prevent the 
elected judges from taking their seats. No. A-363. Circuit 
Justice Scalia turned the application over to the entire 
Court, which denied the request 7-2. Hunter v. McKeithen, 
(A-363) 59 L.W. 3291 (Nov. 26, 1990).

Appellees submit that the decision by this Court in 
Hunter is applicable here. Indeed, the argument against 
throwing these judges out of office is even stronger 
because (a) unlike Hunter, no injunctive relief was sought 
in this case until after the election had occurred, and (b) 
unlike Hunter, these judges have already been seated and 
are acting on a heavy docket of cases.

Counsel for appellants admitted in a hearing in this 
case before Judge Parker on December 20, 1990, that the 
Hunter precedent governs the judges sought to be un­
seated here. During that same hearing, counsel for the 
appellants stated that he would not be seeking in that 
court to unseat these judges:

MR. McDUFF: Now, in all candor, with 
respect to the first category of judgeships that 
were elected either in July without opposition or 
on October 6th, the Supreme Court did not spe­
cifically enjoin them from taking office in its 
injunction. And in the Hunter case which was a 
case coming out of Monroe City Court which we 
asked the Supreme Court to enjoin people from 
taking office after they had been elected because 
the timing was such that an application was not 
made to the Supreme Court for election, and 
they turned us down on a seven to two vote.

So, to me that means that the Supreme 
Court did not specifically, in this case, enjoin the



25

people elected in July through qualification or 
October 6th from taking office. So we are not 
going to take the position in this court that they 
should be kept from taking office. We do think, 
of course, it is still an unprecleared judgeship 
and that eventually something further is going 
to happen with it.

Transcript of Hearing in Clark v. Roemer, December 20, 
1988, page 11, lines 22-25, page 12, lines 1-13.

Appellees note that the United States Attorney Gen­
eral has taken the position that these judges should be 
permitted to take office on a provisional basis. These 
same appellants sought on December 27, 1990, in the 
district court to enjoin certain incumbent Louisiana state 
district judges from serving in office past January 1, 1991, 
thus attempting to deprive the State of Louisiana of some 
of its existing judgeships. In the Response of the United 
States to Plaintiffs' Motion to Prevent Certain Persons 
From Holding Over in Office, filed on January 4,1991, the 
United States Attorney General argued against throwing 
these judges out of office, stating:

Movants here have not pointed to any reason 
why those incumbent judges elected prior to the 
1990 election cycle should be treated differently 
from those judges elected as a result of the 
October 1990 elections and who will be permit­
ted to take office on a provisional basis consis­
tent with this Court's prior orders.

On January 11, 1991, the three-judge court agreed with 
this analysis by the United States Attorney General, and, 
in so doing, issued the following Amended Order:



26

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

JANICE CLARK, ET AL
VERSUS CIVIL ACTION
CHARLES E. ROEMER, ET AL NO. 86-435-A

AMENDED ORDER
The court has pending before it a motion on 

behalf of plaintiffs to prevent certain state 
judges from continuing in office and to prevent 
the state from otherwise filling those offices. 
The state judgeships involved are among those 
the creation of which have not been "pre­
cleared" by the Attorney General of the United 
States as required by Section 5 of the Voting 
Rights Act of 1965, 42 U.S.C. § 1965, 42 U.S.C. 
§ 1973c, and they are listed in Part II of this 
court's order dated October 22, 1990. The spe­
cific judgeships which are the object of the 
motion are Division G of the Fourth Judicial 
District, Morehouse and Ouachita Parishes, and 
Divisions E, F and G of the Fourteenth Judicial 
District, Calcasieu Parish.

The court's order of October 22, 1990 sched­
uled elections for those judgeships (among 
others) for November 6, 1990 and if runoffs 
were required, for December 8, 1990 and the 
order authorized those persons elected to take 
office and serve provisionally as is set forth in 
Part III of the order. The Supreme Court, by its 
orders of November 2 and 5, 1990, set aside that 
portion of this court's order which authorized 
elections for judgeships which have not been 
precleared and enjoined the state officials from 
conducting those elections.

Because the scheduled elections were 
enjoined, no person was elected to any of those



27

judgeships and plaintiffs seek to enjoin the state 
from allowing those offices to be filled until the 
state has complied with the provisions of Sec­
tion 5.

At present three of those offices are filled by 
incumbent judges whose terms expired on 
December 31, 1990. The other position has been 
filled by appointment by the Supreme Court of 
Louisiana under state law.

While the October 22, 1990 order may not 
authorize provisional filling of these specific 
judgeships, the spirit of the order is to avoid 
disruption of Louisiana's judiciary to the extent 
possible until the preclearance issues are finally 
resolved. All of these judgeships were created 
and filled years ago. While one does not have an 
incumbent because of the retirement of the 
incumbent, each is an integral part of Louisi­
ana's existing judicial system. Their loss would 
impinge upon that system.

While the State defendants have not moved 
for amendment of the earlier order, the court 
sua sponte will amend it.

Accordingly, IT IS ORDERED that the order 
of October 22, 1990 is hereby amended so as to 
allow Division G of the Fourth Judicial District 
and Divisions E, F and G of the Fourteenth 
Judicial District to be provisionally filled in 
accordance with and under the terms and 
restrictions of Part III of that order.

Baton Rouge, Louisiana, January 11, 1991.

/s/ W. Eugene Davis 
W. EUGENE DAVIS 
UNITED STATES CIRCUIT 
JUDGE



28

/s/ John V. Parker

UNITED STATES DISTRICT 
JUDGE

/s/ Frank J. Polozola
FRANK J. POLOZOLA 
UNITED STATES DISTRICT 
JUDGE

Appellants conclude their Jurisdictional Statement by 
stating, "In the meantime, of course, the State of Louisi­
ana remains free to pass and preclear legislation that 
would cause these judges to be elected in a manner that 
satisfies Section 5." Presumably, by this, appellants mean 
that the State of Louisiana should adopt a new system of 
electing judges, such as limited voting. The problems 
with limited voting have been previously discussed in 
this motion.17 Further, most of the unprecleared judge- 
ships involve one seat in a district, and there is no way to 
have limited voting for one judgeship. Under limited 
voting, voters vote for some but not all of the positions to 
be filled. Where there is only one position to fill, there is 
no way to limit the voting population. Single judgeships 
are single offices, and the Voting Rights Act has been held 
not to apply to single office holders. See Butts v. City of 
New York, 779 F.2d 141 (2d Cir. 1985), cert, denied, 478 U.S. 
1021, 106 S.Ct. 3335, 92 L.Ed.2d 740 (1986); League of Latin 
American Citizens Council #4434 v. William P. Clements, et 
ah, 914 F.2d 620, 645 (5th Cir. 1990) (en banc) (Higgin­
botham, J., concurring).

-------------4------------

CONCLUSION

Louisiana has embraced, by direct will of its people 
as reflected through the framing and adoption of its

17 See footnote 12 supra.



29

Constitutions, an electoral judicial system during 135 of its 
179 year history, which includes a period of time in excess of 
all of this century and over a third of the last century.

Louisiana, unlike most of the 42 other states with an 
electoral judicial section, or retention system, may not 
freely make adjustments to Louisiana's judicial system 
without advance approval from Washington. In days 
gone past, such approval was never unreasonably with­
held. On 81 such previous occasions, as found by the 
three-judge court [see page 12, fn. 8 supra] approval of a 
Louisiana legislative act wTas virtually automatic. From 
the day [August 15, 1988] Chief Judge Parker spoke of a 
systemic remedy [as subsequently recanted by Chief 
Judge Parker], the Justice Department of the United 
States has drawn a line in the sand, and, in so doing, has 
insisted on Louisiana adopting either a limited voting 
scheme or a cumulative voting scheme. As previously 
reflected [page 19 fn. 14 supra] Louisiana firmly believes 
that Section 5 is unconstitutional as currently applied by 
the Justice Department of the United States. This and 
many other issues, including the proper relationship 
between Sections 2 and 5 of the Voting Rights Act, are not 
presented in this case.

Until these difficult questions have been entertained 
and considered by the district court in the District of 
Columbia (as will occur in this case under the Three- 
Judge Court Order of October 22, 1990) and there is 
available to this Court a fully developed record, the pre­
sent consideration of Section 5 is unwise and premature. 
Appellees, therefore, urge this Court to dismiss this 
appeal or, in the alternative, to affirm the decision of the 
three-judge court below.



30

All of the above and foregoing is thus respectfully 
submitted.

R obert G. P ugh 
Counsel of Record 
R obert G. Pugh, J r .
O f T he L aw F irm of 
P ugh, Pugh & P ugh 

Commercial National Tower, Suite 2100 
333 Texas Street

Shreveport, Louisiana 71101-5302 
(318) 227-2270

K enneth C. D eJean 
First Assistant Attorney 

General
Louisiana Department of 

Justice
Office of the Attorney 

General 
Second Floor 
State Capitol 
Baton Rouge, Louisiana 

70804
(504) 342-7014

Attorney for and on behalf 
of William ]. Guste, Jr. 
Attorney General of 
Louisiana

John N . K ennedy 
Special Counsel to the 
Governor 

T homas A. C asey 
Executive Counsel to the 

Governor
Office of the Governor 
Fourth Floor 
State Capitol Building 
Baton Rouge, Louisiana 

70804
(504) 342-7015

Attorneys for and on 
behalf of Charles ''Buddy" 
Roemer Governor of 
Louisiana

M ichael H. R ubin 
C hristina B. Peck 
Rubin, C urry, C olvin 

& Joseph 
Ninth Floor 
One American Place 
Baton Rouge, Louisiana 

70825
(504) 383-9000

Attorneys for the Louisiana 
District Judges Association

C ynthia Y oung R ougeou 
Special Counsel to the 
Secretary of State 
State of Louisiana 
Post Office Box 94125 
Baton Rouge, Louisiana 

70804
(504) 342-2065

Attorney for and on 
Behalf of Fox McKeithen 
Secretary of State of 
Louisiana



APPENDIX



App. 1

SEAL U.S. Department of Justice

WBR:SSC:DHH:jmc:gmh 
DJ 166-012-3
P8184-8187 Washington, D.C. 20530
P8735
P8994-9002

August 18, 1986
L. Adrienne Dupont, Esq.
Staff Attorney
State of Louisiana
Department of Justice
Baton Rouge, Louisiana 70804-9005
Dear Ms. Dupont:

This is in reference to four acts of the Louisiana 
Legislature creating judgeships (Act No. 3 (1965) -  Dis­
trict 9, Division C; District 19, Division F; District 21, 
Division C; District 24, Divisions F and G; Act No. 2 
(1966) -  District 1, Division E; District 15, Division D; 
District 19, Division G; Civil District Court, Orleans Par­
ish, Division I; Act No. 216 (1970) -  District 19, Divisions 
H, I, and J; and Act No. 5 (1972) -  District 19, Division K) 
and to the procedures for conducting the September 27, 
1986, special election and the November 4, 1986, runoff 
election to fill a vacancy for a judgeship (District 19, 
Division H), submitted to the Attorney General pursuant 
to Section 5 of the Voting Rights Act of 1965, as amended, 
42 U.S.C. 1973c. We received your submission of the 
additional judgeships on July 23, 1986, and your submis­
sion of the special elections on July 28, 1986. In accor­
dance with your request, expedited consideration has 
been given this submission pursuant to the Procedures 
for the Administration of Section 5 (28 C.F.R. 51.32).



App. 2

The Attorney General does not interpose any objections 
to the changes in question. However, we feel a responsibility 
to point out that Section 5 of the Voting Rights Act expressly 
provides that the failure of the Attorney General to object 
does not bar any subsequent judicial action to enjoin the 
enforcement of such changes. In addition, as authorized by 
Section 5, the Attorney General reserves the right to reex­
amine this submission if additional information that would 
otherwise require an objection comes to his attention during 
the remainder of the sixty-day review period. See also 28
C.F.R. 51.42 and 51.48.

Because these submissions are related to matters 
before the court in Clark v. Edwards, C.A. No. 86-435 Sec. 
A (M.D. La.), we are taking the liberty of sending a copy 
of this letter to the court.

Sincerely,
Wm. Bradford Reynolds
Assistant Attorney General
Civil Rights Division
By: /s/ Sandra Coleman

for Gerald W. Jones 
Chief, Voting Section

cc: C. Lee Dupuis, Esq.
Clerk, United States District Court 

for the Middle District of Louisiana
Ernest L. Johnson, Esq.
Johnson, Taylor & Thomas
Samuel Issacharoff, Esq.
Lawyers' Committee for Civil 

Rights Under Law



App. 3

Department of Justice 
Washington, D.C. 20530

AUG 11 1976
Mr. Kenneth C. Dejean 
Assistant Attorney General 
Department of Justice 
Post Office Box 44005 
State Capitol
Baton Rouge, Louisiana 70804 
Dear Mr. Dejean:

This is in reference to the changes affecting judicial 
districts by Act No. 46 and Act No. 47 of the 1976 Regular 
Session of the Louisiana Legislature, submitted to the 
Attorney General pursuant to Section 5 of the Voting 
Rights Act of 1965, as amended. Your submission was 
received on July 12, 1976. In accordance with your 
request, expedited consideration has been given this sub­
mission pursuant to the procedural guidelines for the 
administration of Section 5 (28 C.RR. Section 51.22).

The Attorney General does not interpose any objec­
tion to the changes in question. However, we feel a 
responsibility to point out that Section 5 of the Voting 
Rights Act expressly provides that the failure of the 
Attorney General to object does not bar any subsequent 
judicial action to enjoin the enforcement of such changes. 
We should further point out that the Attorney General 
has no authority to waive the 60-day period for consider­
ing a submission and, as our guidelines indicate (see 28 
C.RR. Section 51.22), we may re-examine our position on 
your submission should we receive additional informa­
tion concerning the changes in voting procedure prior to



App. 4

the expiration of the 60-day period. Should such informa­
tion warrant a change in the Attorney General's deter­
mination, you will be so advised.

Sincerely,
/s/ J. Stanley Pottinger 

J. Stanley Pottinger 
Assistant Attorney General 
Civil Rights Division



App, 5

UNITED STATES DEPARTMENT OF JUSTICE 
WASHINGTON, D.C. 50530

SEAL
DSD:DHH:ELG:gml 
DJ 166-012-3 
A7300
Mr. Kenneth Dejean 
Assistant Attorney General 
State of Louisiana 
Department of Justice 
Baton Rouge, Louisiana 70804

Dear Mr. Dejean:

This is in reference to Act No. 39 of the 1978 Regular 
Session of the Legislature of Louisiana, submitted to the 
Attorney General pursuant to Section 5 of the Voting 
Rights Act of 1965, as amended. Your submission was 
received on July 26, 1978.

The Attorney General does not interpose any objec­
tion to the change in question. However, we feel a 
responsibility to point out that Section 5 of the Voting 
Rights act expressly provides that the failure of the Attor­
ney General to object does not bar any subsequent judi­
cial action to enjoin the enforcement of such change.

Sincerely,

DREW S. DAYS III 
Assistant Attorney General 
Civil Rights Division
By: I s /  Gerald W. Jones

GERALD W. JONES 
Chief, Voting Section



App. 6

SEAL

U.S. Department of Justice

WBR:CWG:TGL:dvs
DJ 166-012-3 Washington, D.C. 20530
G5606-5607
G7029-7030

Honorable William J. Guste, Jr.
Attorney General
State of Louisiana 2 DEC 1982
Department of Justice 
P.O. Box 44005
Baton Rouge, Louisiana 70804 

Dear Mr. Attorney General:

This is in reference to Act No. 21 (1982), of the 
Regular Session of the Louisiana Legislature, which cre­
ates additional district court judgeships for Judicial Dis­
trict Nos. 1, 15, 18, 23 and 27, divides the 29th Judicial 
District so as to create the 40th Judicial District, provides 
for the election of a district attorney in the 40th Judicial 
District and provides for the January 15, 1983, special 
election to be held in that district in the State of Louisi­
ana, submitted to the Attorney General pursuant to Sec­
tion 5 of the Voting Rights Act of 1965, as amended, 42 
U.S.C. 1973c. Your submission was received on October 5, 
1982.

The Attorney General does not interpose any objec­
tions to the changes in question. However, we feel a 
responsibility to point out that Section 5 of the Voting 
Rights Act expressly provides that the failure of the 
Attorney General to object does not bar any subsequent 
judicial action to enjoin the enforcement of such changes.



App. 7

See the Procedures for the Administration of Section 5 (28 
C.F.R. 51.48).

Sincerely,
Wm. Bradford Reynolds 
Assistant Attorney General 
Civil Rights Division
By: /s/ Calvin Gabil

Gerald W. Jones 
Chief, Voting Section



App. 81

SEAL
WILLIAM J. GUSTE JR 
ATTORNEY GENERAL

STATE OF LOUISIANA 
DEPARTMENT OF JUSTICE 

BATON ROUGE 
70804

July 29, 1981

CERTIFIED -  RETURN RECEIPT 
REQUESTED -  #P05 8840222

Mr. James P. Turner 
Acting Assistant Attorney General 
Civil Rights Division 
Voting Rights Section 
Department of Justice 
Washington, D. C. 20530

RE: Submission of Act 3 of 1981 under 
Section 5 of Voting Rights Act

Dear Mr. Turner:

The State of Louisiana, through its Attorney General, 
William J. Guste, Jr., hereby submits Act 3 of the Regular 
Session of the Louisiana Legislature of 1981, a duly certi­
fied copy of which is attached hereto.

1 Mr. James P. Turner, July 29, 1981, with sequential page 
numbers, i.e. two, three, four, five, and six have been omitted 
from this copy.



App. 9

This Act is submitted pursuant to the Voting Rights 
Act of 1965, Section 5, and in accordance with 28 C.F.R., 
Part 51, as this Act effects changes with respect to voting 
in the State of Louisiana by amending and reenacting 
certain portions of the Louisiana Revised Statutes. Those 
sections are: R.S. 13:312, R.S. 13:312.1, R.S. 13:321, and 
R.S. 13:353.

Act 3 was originally introduced in the Louisiana 
Senate as Senate Bill 170. The purpose of the bill is to 
assist in facilitating changes in appellate jurisdiction of 
the Louisiana Supreme Court and the Louisiana Circuit 
Courts of Appeal. Prior to 1980, the Louisiana Courts of 
Appeal had no criminal jurisdiction. However, by reason 
of Act 843 of 1980, approved by the Louisiana electorate 
on November 4, 1980, as an amendment to the Louisiana 
Constitution, effective July 1, 1982 appellate jurisdiction 
in criminal matters will be vested in the Louisiana Courts 
of Appeal. With the change in the appellate jurisdiction of 
the Courts of Appeal, the Legislature recognized the need 
for additional judgeships to handle the additional crimi­
nal appeal workload that these courts will assume and 
accordingly, Act 3 made the following changes:

New law, relative to the courts of appeal, basically pro­
vides for the creation of a Fifth Circuit, out of the present 
Fourth Circuit, and also increases the number of appellate 
judges from 33 to 48 throughout the state.

New law creates the court of appeals for the Fifth Circuit 
out of the present Fourth Circuit. The chart below shows 
the number of judges and arrangement of districts in the 
prior law, Act 661 of 1980, and the new law to wit:



PRIOR LAW ACT 661, 1980 R.S. NEW LAW

1. First Circuit
Districts Judges Districts Judges Districts Judges

1st - Ascension, Assumption, 
Iberville, Lafourche, Pointe

1st - (Same) .. ..........3 1st - (Same) .. ..........4

Coupe, St. Mary, Terrebonne, 
and West Baton Rouge............ 3

2nd - East Baton R ouge..................... 3 2nd - (Same) . ..........3 2nd - (Same) . ..........4

3rd - East Feliciana, Livingston, St. 3rd - (same).. ..........3 3rd - (Same). . ..........4
Helena, St. Tammany, 
Tangipahoa, Washington, and 
West Feliciana............................. _3

At Large . . . . . .......... 1

Total.. 9 Total . . . . . . . . . . . . . . . 1 0 Total ................ ..........12

A
pp. 10



PRIOR LAW ACT 661, 1980 R.S. NEW LAW

2. Second Circuit
Districts

1st - East Carroll, Franklin, Madison, 
Morehouse, Ouachita, Richland, 
Tensas, and West Carroll . . . . .  1

1st - (Same) . .. . .. .. 1 1st - (Same)........... . . 2

2nd - Bienville, Bossier, Caldwell, 
Claiborne, Jackson, Lincoln, 
Union, Webster, and Winn. . . .  1

2nd - (Same) . . . ___1 2nd - (Sam e)........ .. 2

3rd - Caddo, DeSoto, and Red 
River. ............................................1

3rd - (Same). . . . .. .. 1 3rd - (Same).......... . . 2

At Large......................... . . . . . . . . . . . . . . ._2 At Large ............ . . .  . 3 At Large ................ . . 1

Total..............................................................5 Total................... . . . .  6 Total ....................... . . 7

A
pp. 11



PRIOR LAW

3. Third Circuit (No Change by 
new law)
Districts

1st - Avoyelles, Catahoula,
Concordia, Grant, LaSalle, 
Natchitoches, Rapides, and
Sabine...............   2

2nd - Allen, Beauregard, Calcasieu, 
Cameron, Jefferson Davis, and 
Vernon.................................   2

3rd - Acadia, Evangeline, Iberia, 
Lafayette, St. Martin, St.
Landry, and Vermilion.............   2

At Large..................................        3

Total................................................................ 9

ACT 661, 1980 R.S. NEW LAW

1st - (Same)............. 2

2nd - (Same).......... • 2

3rd - (Same). . . . . . . .  2
At Large.................. _3

1st - (Same)................2

2nd - (Sam e)..............2

3rd - (Same)................2
At Large....................__3

Total 9 Total 9

A
pp. 12



PRIOR LAW

4. Fourth Circuit 
Districts

1st - Jefferson ...........................   2
2nd - Orleans ....... ..................................5
3rd - St. Charles, St. James, St. John 

the Baptist...................................  1
4th - Plaquemines and St. Bernard. . .  1

From combined 1st, 3rd, and 4th 
districts........................................................ _ i

Total...............................................................10

ACT 661, 1980 R.S. NEW LAW

1st - Orleans......... . 8
2nd - Plaquemines. . 1 
3rd - St. Bernard .. . 1

1st - Orleans............8
2nd - Plaquemines. . 1 
3rd - St. Bernard . .. 1

Total 10 Total 12

A
pp. 13



TOTAL

Fifth Circuit (New)

PRIOR LAW ACT 661, 1980 R.S. NEW LAW

1st - Jefferson 1 1st - (Same).. . . .  6 (7)
2nd - St. James, 
St. John the 
Baptist (east of 
the Mississippi) 1

2nd - (Same). . . .  1

3rd - St. Charles, 
St. John the 
Baptist (west of 
the Mississippi).. . .. 1

3rd - (Same) . . . .  1

>

Total..................... . . . 6 Total.............. . . . .  8 (9) I—i

.33 TOTAL................... . .41 TOTAL............ . .48 (49)



App. 15

An additional judge for the first district exists 
until January 1, 1983.

Act 661 of 1980 would create the additional judgeships 
shown on the chart effective December 1, 1981.

New law repeals the above digested provisions of Act 661 
which are to be effective December 1, 1981, except that it 
retains the provisions of Act 661 which created one addi­
tional judgeship for the Fourth Circuit. That judgeship 
has been filled. (Effective on signature of the governor).

Prior law provided that a sheriff's deputy shall attend 
each session of court for the First, Second, and Third 
Circuits. The Fourth Circuit is attended by the New 
Orleans police. New law adds sheriffs' deputies for the 
Fifth Circuit. (Effective May 1, 1982).

New law provides that all additional judgeships shall be 
established as soon as this Act is signed by the governor. 
Provides for a special election by special primary on the 
third Saturday in October and special general election on 
the sixth Saturday following the third Saturday in Octo­
ber. The new judges for the First, Second, and Fourth 
Circuit take office on January 1, 1982; the judges for the 
Fifth Circuit take office May 1, 1982. The new judges for 
the "new" Fourth Circuit will be elected to districts of the 
"old" Fourth Circuit, take office on January 1, 1982, and 
be transferred to the "new" Fourth Circuit on May 1, 
1982.

Provides that nine judgeships shall be established for the 
Fifth Circuit until January 1, 1983. Provides that seven of 
the judges shall be elected from the first district of the 
Fifth Circuit. Provides that one judgeship from the first 
district shall be abolished on January 1, 1983 (when the



App. 16

incumbent judge's term expires). Provides that four of the 
nine judges are incumbent judges, the remaining five 
additional judges shall be selected as follows: one from 
the third district, and four from the first district of the 
Fifth Circuit.

Prior law provided for alphabetical divisions (A, B, C,
. . . . ) within each district of the First Circuit. New law 
provides the same for all court of appeal circuits. (Effec­
tive on the signature of the governor).
Effective dates (a) On Act's signature by governor -  

establishment of all judgeships.
(b) May 1, 1982 -  creation of the Fifth 

Circuit.
(c) On signature of the governor -  all 

other provisions.

Act 3 was adopted by the Louisiana Legislature pur­
suant to its general legislative powers provided in Article 
III, Section 1 of the Louisiana Constitution of 1974 and 
the Constitution of the United States of America, Amend­
ment X.

Act 3 was finally passed by the Legislature on May 
27, 1981, when the Louisiana Senate concurred in House 
amendments by a vote of 33-0. The House of Representa­
tives had previously adopted the bill by a vote of 77-1 on 
May 2, 1981. The Act was signed by Governor David C. 
Treen on June 2, 1981.

Section 13 of the Act provides with respect to the 
effective date of the various sections of Act 3. In accor­
dance with the mandate of Act 3, Governor Treen has 
issued an Executive Proclamation calling for elections to 
fill the newly created judgeships which are scheduled to



App. 17

be conducted on October 17, 1981 and November 28, 1981 
for the primary and general elections, respectively. A 
copy of this proclamation is enclosed. Due to these 
impending elections, the State of Louisiana requests 
expedited consideration.

The Act will be effective with respect to only those 
portions of the State of Louisiana where additional Court 
of Appeal judgeships have been created, and it is not 
anticipated that the Act will affect adversely any lan­
guage or racial minority group.

An action entitled Elmer Tapper v. David C. Treen, 
Governor of Louisiana, was filed in the Nineteenth Judicial 
District Court, Parish of East Baton Rouge, State of Loui­
siana, relative to the implementation of Act 3. A copy of 
the Plaintiff's petition is included, although Mr. Trapper 
has voluntarily dismissed his petition as of July 22, 1981. 
The prior practices were precleared by the United States 
Attorney General in a letter dated August 28, 1980, a 
copy of which is attached hereto.

Requests for further information should be directed 
to the undersigned, Kenneth C. Dejean, Assistant Attor­
ney General, Post Office Box 44005, Baton Rouge, Louisi­
ana 70804, telephone: (504) 342-7013.

Sincerely,
WILLIAM J. GUSTE, JR.
Attorney General
BY: /s/ Kenneth C. Dejean

KENNETH C. DEJEAN 
Assistant Attorney General

KCD:lg 
Enclosures (4)



App. 18

SEAL
WBR:CWG:TGL:gml
DJ 166-012-3 Washington, D.C. 20530
D9992-9993
Kenneth C. Dejean, Esq,
Assistant Attorney General
State of Louisiana Aug 26, 1981
Department of Justice 
P.O. Box 44005
Baton Rouge, Louisiana 70804 

Dear Mr. Dejean:

This is in reference to Act No. 3 of the 1981 Regular 
Session of the Louisiana Legislature, which provides 
additional appellate court judges and a special election in 
October 1981, submitted to the Attorney General pur­
suant to Section 5 of the Voting Rights Act of 1965, as 
amended, 42 U.S.C. 1973c. Your submission was received 
on August 4, 1981. In accordance with your request expe­
dited consideration has been given this submission pur­
suant to Section 51.32 of the Procedures for the 
Administration of Section 5 (46 Fed. Reg. 877).

The Attorney General does not interpose any objec­
tions to the changes in question. However, we feel a 
responsibility to point out that Section 5 of the Voting 
Rights Act expressly provides that the failure of the



App. 19

Attorney General to object does not bar any sxibsequent 
judicial action to enjoin the enforcement of such changes.

Sincerely,
Wm. Bradford Reynolds 
Assistant Attorney General 
Civil Rights Division
By: /s/ Calvin Gabil

Gerald W. Jones 
Chief, Voting Section



App. 20

SEAL U.S. Department of Justice
Civil Rights Division

Office of the Assistant Attorney General
Washington, D.C. 20530

Cynthia Y. Rougeou, Esq.
Assistant Attorney General
RO. Box 94125 Nov. 20, 1990
Baton Rouge, Louisiana 70804-9125
Dear Ms. Rougeou:

This refers to the September 23, 1988, objection, 
under Section 5 of the Voting Rights Act of 1965, as 
amended, 42 U.S.C. 1973c, to Act 515 (1974), which cre­
ates an additional judgeship (Division B) and provides 
for a special election therefor in the 6th Judicial District of 
the State of Louisiana.

As you know, on September 17, 1990, the Attorney 
General declined to withdraw the objection, based on the 
information that was then available. Since that time, we 
have received and carefully reviewed additional factual 
information relevant to the creation and implementation 
of the Division B judgeship position. See the Procedures 
for the Administration of Section 5 (28 C.F.R. 51.46). More 
specifically, our analysis of the October 6, 1990, election 
returns has led us to further reconsider our determination 
with regard to the 6th Judicial District, and, based on that 
reconsideration we are satisfied that the concerns we 
previously entertained no longer prevail in that district. 
Accordingly, the objection interposed September 23, 1988, 
and continued September 17, 1990, to the specified 
changes under Act 515 (1974) is hereby withdrawn. See 28 
C.F.R. 51.48 and 51.55. However, we feel a responsibility 
to point out that Section 5 of the Voting Rights Act



App. 21

expressly provides that the failure of the Attorney Gen­
eral to object does not bar any subsequent judicial action 
to enjoin the enforcement of such changes. 28 C.F.R. 
51.41.

Because this matter remains pending before the court 
in Clark v. Roemer, No. 86-435-A (M.D. La.), we are send­
ing a copy of this letter to the court and counsel of record 
in that case.

Sincerely,
/s/ John R. Dunne 

John R. Dunne 
Assistant Attorney General 
Civil Rights Division

cc: Honorable John V. Parker
Chief Judge, United States District Court
Michael M. Rubin, Esq.
Fred J. Cassibry, Esq.
Robert G. Pugh, Esq.
Kenneth C. Dejean, Esq.
John N. Kennedy, Esq.
Jack C. Benjamin, Esq.
George A. Blair, III, Esq.
Anthony Skidmore, Esq.
Robert P. McLeod, Esq.
Harry Rosenberg, Esq.
Ernest L. Johnson, Esq.
Robert B. McDuff, Esq.
Ulysses Gene Thibodeaux, Esq.



Regular Session, 1974 

SENATE BILL NO. 202 

BY MR. C. M. BROWN

App. 22

ACT 515

ORIGINATED 

IN THE 

SENATE

/s/ Charles Wm. Roberts
Se c r e t a r y  o f  t h e
SENATE

Rec'd by the Governor 
July 11, 1974 at 11:45 PM

D. Davenport
Received by Secretary of State 
the 13th day of July, 1974 
/s/ Wade O. Martin, Jr.

Secretary of State

Certified by the Governor as 
Emergency Legislation.
H 7/9/74, S 7/9/74 
date

Wade O. Martin, Jr. 
Secretary of State

AN ACT
To amend and reenact Sections 621.5, 621.9 and 
621.32 of Title 13 of the Louisiana Revised Stat­
utes of 1950, relative to the number of judges in



App, 23

the Sixth, Ninth and Thirty-Second Judicial Dis­
tricts, to create an additional office of district 
judge for each of said judicial districts; to pro­
vide for the qualifications, election, term of 
office, compensation and expenses of said addi­
tional judges, including the election of the initial 
judges; and otherwise to provide with respect 
thereto.

Be it enacted by the Legislature of Louisiana:

Section 1. Sections 621.6, 621.9 and 621.32 of Title 13 
of the Louisiana Revised Statutes of 1950 are hereby 
amended and reenacted to read as follows:

§ 621.6. Sixth judicial district

The sixth judicial district court shall have two 
judges.

* *  *

§ 621.9. Ninth Judicial District

The Ninth Judicial District Court shall have five 
judges.

*  * *

§ 621.32. Thirty-Second judicial district

The thirty-second judicial district shall have four 
judges.

Section 2. For purposes of nomination and election 
only there is created in the sixth judicial district two 
divisions, to be designated as Division A and Division B. 
Division A shall be occupied by the present judge of the 
sixth judicial district court and his successors in office, 
and Division B shall be occupied by the first person to



App. 24

serve as judge of the herein newly created judgeship and 
his successors in office.

Section 3. There is created in the thirty-second judi­
cial district one new division, to be known as Division O. 
The divisions of the thirty-second judicial district which 
are already existing on the effective date of this Act shall 
be occupied by the present judges and their successors in 
office and Division O shall be occupied by the first per­
son elected to serve as judge of the herein newly created 
judgeship and his successors in office. The creation of this 
division is for the purpose of nomination and election 
only.

Section 4. The additional judges provided for by this 
Act for the sixth and thirty-second judicial districts shall 
have the same qualifications and shall be elected at the 
same time and in the same manner, shall serve the same 
term of office and shall be entitled to the same compensa­
tion and expenses, payable from the same sources, as is 
now or may hereafter by provided for the other judges of 
the sixth and thirty-second judicial districts.

The first occupant of the additional judgeship pro­
vided for by this Act shall be elected at a special election 
which shall be called by the governor for the first term, 
and the judge so elected shall serve a term to expire at the 
same time as the term of the other judge of the sixth 
judicial district.

The first judge to fill the additional judgeship of the 
thirty-second judicial district herein created shall be 
elected at a special election to be called by the governor 
to be held at the same time as the congressional elections 
in 1974.



App. 25

Section 5. There is created in the Ninth Judicial Dis­
trict one new division, to be known as Division E. The 
divisions of the Ninth Judicial District which are already 
existing on the effective date of this Act shall be occupied 
by the present judges and their successors in office. Divi­
sion E shall be occupied by the first person elected to 
serve as judge of the herein newly created judgeship and 
his successors in office. The creation of this division is for 
the purpose of nomination and election only.

Section 6 . The additional judge provided for by this 
Act shall have the same qualifications and shall be enti­
tled to the same compensation and expenses, payable 
from the same sources as is now or may hereafter be 
provided for the other judges of the Ninth Judicial Dis­
trict Court, and shall be elected by the qualified voters of 
the said judicial district at a special election to be called 
by the governor to be held on the first Tuesday after the 
first Monday in November, 1974, for a term ending with 
the term of the present district judges in said judicial 
district, and thereafter the said judge shall be elected at 
the same time and in the same manner and shall serve the 
same term of office, as is now or may hereafter be pro­
vided for the other judges of the Ninth Judicial District 
Court.

Section 7. The legislature has knowledge of the fact 
that more than one bill has been introduced and/or pas­
sed at this 1974 Regular Session, each of which increases 
the number of district judges, and the legislature hereby 
declares its intent that each such bill enacted at this 
session creating any new judgeship in a judicial district is 
not intended to repeal or conflict with another bill 
enacted at this session creating any judgeship in another



App. 26

district, and that it is the intent of the legislature that any 
such bills enacted at this session, whether enacted prior 
to or after the enactment of this Senate Bill No. 202, shall 
be construed in harmony to give each bill effect in the 
judicial district in which it increases the number of 
judges.

Section 8. If any provision or item of this Act or the 
application thereof is held invalid, such invalidity shall 
not affect other provisions, items or applications of this 
Act which can be given effect without the invalid provi­
sions, items or applications, and to this end the provi­
sions of this Act are hereby decalred (sic) severable.

Section 9. All laws or parts of laws in conflict here­
with are hereby repealed.

/s/ Tames E. Fitzmorris, Jr.
LIEUTENANT GOVERNOR 
AND PRESIDENT OF THE 
SENATE

/s/ E.L. Henry
SPEAKER OF THE HOUSE 
OF REPRESENTATIVES

/s/ Edwin Edwards
GOVERNOR OF THE STATE 
OF LOUISIANA

APPROVED: July 12, 1974

E at 3:15PM