Memorandum form Ganucheau (Clerk) to Counsel; Chisom v. Edwards Court Opinion

    GILBERT F. GANUCHEAU 
CLERK 

40 
pniteb $tates aloud of ppeals 

FIFTH CIRCUIT 

OFFiCE OF THE CLERK 

February 29, 1988 

MEMORANDUM' TO COUNSEL OR PARTIES LISTED BELOW 

No. 87-3463 - Chisom vs. Edwards 

TEL. 504-589-6514 
600 CAMP STREET 

NEW ORLEANS, LA 70130 

Enclosed is a copy of the Court's decision this day rendered in 
the above case. A judgment has this day been entered in 
accordance therewith pursuant to Rule 36 of the Federal Rules of 

Appellate Procedure. 

Rules 39, 40 and 41, FRAP and Local Rules 39 and 41 govern costs, 
petitions for rehearing and mandates. A petition for rehearing  
must be filed Sin the Clerk's Office within fourteen (14) days  
from this date. Placing the petition in the mail on the 14th day  

will not suffice. 

Criminal Appeals. Local Rule 41 provides that "A motion for a 
stay of the issuance of a mandate in a direct criminal appeal 
filed under FRAP 41 shall not be granted simply upon request. 
Unless the petition sets forth good cause for stay or clearly 
demonstrates that a substantial question is to be presented to 
the Supreme Court, the motion shall be denied and the mandate 

thereafter issued forthwith." 

Court-Appointed Counsel Cases. This Court's plan under the 
Criminal Justice Act provides that in the event of affirmance or 
other decision adverse to the party represented, appointed 
counsel shall promptly advise the party in writing of the right 
to seek further review by the filing of a petition for writ of 
certiorari with the Supreme Court and shall file such petition if 
requested to do so in writing by such party. 

Very truly yours, 

GILBERT F. GANUCHEAU, Clerk 

By:  112 
Enclosure Deput Clerk 

cc: ALL COUNSEL OF RECORD 

OP-JDT-1 
Rev. 11/86 



CHISOM v. EDWARDS 2300 

Ronald CHISOM, et al., 
Plaintiffs—Appellants, 

v. 

Edwin EDWARDS, in his capacity as 
Governor of the State of Louisiana, 

et al., Defendants—Appellees. 

No. 87-3463. 

United States Court of Appeals, 

Fifth Circuit. 

Feb. 29, 1988. 

Black registered voters in Orleans Par-
ish of Louisiana brought suit challenging 
constitutionality of present system of elect-
ing Louisiana Supreme Court Justices from 
First Supreme Court District. The United 
States District Court for the Eastern Dis-
trict of Louisiana, Charles Schwartz, Jr., J., 
659 F.Supp. 183, dismissed, and voters ap-
pealed. The Court of Appeals, Johnson, 
Circuit Judge, held that: (1) judicial elec-
tions are covered by Voting Rights Act 
section which prohibits any law or proce-
dure which has effect of denying or abridg-
ing right to vote on basis of race, and (2) 
complaint by black registered voters chal-
lenging current at-large system of electing 
state Supreme Court Justices from their 
district established theory of discriminatory 
intent and stated claim of racial discrimina-
tion under Fourteenth and Fifteenth 
Amendments. 

Reversed and remanded. 

ing or abridging right to vote on basis of 
race. Voting Rights Act of 1965, § 2, as 
amended, 42 U.S.C.A. § 1973. 

2. Civil Rights c=13.4(6) 

Elections 

Discriminatory purpose is prerequisite 
to recovery under Fourteenth and Fif-
teenth Amendments. U.S.C.A. Const. 
Amends. 14, 15. 

3. Civil Rights .c;13.12(3) 

Elections c=.7 

Complaint by black registered voters 
challenging current at-large system of 
electing state Supreme Court Justices from 
their district established theory of discrimi-
natory intent and stated claim of racial 
discrimination under Fourteenth and Fif-
teenth Amendments; voters cited history 
of purposeful official discrimination on ba-
sis of race in state and existence of wide-
spread racially polarized voting in elections 
involving black and white candidates, con-
cluding that current election procedures for 
selecting Supreme Court Justices from 
their area diluted minority voting strength. 
U.S.C.A. Const.Amends. 14, 15. 

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

Before BROWN, JOHNSON, and 
HIGGINBOTHAM, Circuit Judges. 

JOHNSON, Circuit Judge: 

Plaintiffs, black registered voters in Or-
1. Elections c=.12(l) leans Parish, Louisiana, raise constitutional 

Judicial elections are covered by Vot- challenges to the present system of elect-
ing Rights Act section which prohibits any ing Louisiana Supreme Court Justices from 
law or procedure which has effect of deny- the First Supreme Court District. Plain-

Synopsis, Syllabi and Key Number Classification 
COPYRIGHT Lc) 19SS by WEST PUBLISHING CO. 

The Synopsis, Syllabi and Key Number Classifi-
cation constitute no part of the opinion of the court. 



2301 CHISOM v. EDWARDS 

tiffs allege that the current at-large system 
of electing Justices from the First District 
impermissibly dilutes the voting strength 
of black voters in Orleans Parish in viola-
tion of Section 2 of the Voting Rights Act 

of 1965, as amended in 1982 and the four-
teenth and fifteenth amendments. The dis-
trict court dismissed the section 2 claim 
pursuant to Fed.R.Civ.P. 12(b)(6) for failure 
to state a claim, finding that section 2 does 
not apply to the election of state judges. 
Concluding that section 2 does so apply, we 

reverse. 

The primary issue before this Court is 
whether section 2 of the Voting Rights Act 
applies to state judicial elections. 

I. FACTS AND PROCEDURAL HISTO-

RY 

The facts are undisputed. Currently, the 
seven Justices on the Supreme Court of 
Louisiana are elected from six geographical 
judicial districts. Five of the six districts 
elect one Justice each. However, the First 
District, comprised of four parishes (Or-
leans, St. Bernard, Plaquemines, and Jef-
ferson Parishes), elects two Justices at-
large. 

The population of the four parish First 
Supreme Court District is approximately 
thirty-four percent black and sixty-three 
percent white. The registered voter popu-
lation reveals a somewhat similar percent-
age breakdown, with approximately thirty-
two percent black and sixty-eight percent 
white. Over half of the four parish First 
Supreme Court District's population and 
over half of the district's registered voters 

live in Orleans Parish. Importantly, Or-
leans Parish has a fifty-five percent black 
population and a fifty-two percent black 
registered voter population. Plaintiffs 
seek a division of the First District into two 

single-member districts, each to elect one 
Justice. Under the plaintiffs' plan of divi-
sion, one proposed district would be com-

posed of Orleans Parish with a greater 
black population and black registered voter 
population than white. The other proposed 
district would be composed of Jefferson, 
Plaquemines, and St. Bernard Parishes; 
this district would have a substantially 

greater white population and white reg-
istered voter population than black. It is 
particularly significant that no black per-
son has ever been elected to the Louisiana 
Supreme Court, either from the First Su-
preme Court District or from any one of 
the other five judicial districts. 

To support their voter dilution claim, 
plaintiffs cite, among other factors, a histo-
ry of purposeful official discrimination on 
the basis of race in Louisiana and the exist-
ence of widespread racially polarized vot-
ing in elections involving black and white 
candidates. Specifically, plaintiffs allege in 

their complaint: 

Because of the offical history of racial 
discrimination in Louisiana's First Su-
preme Court District, the wide spread 
prevalence of racially polarized voting in 
the district, the continuing effects of 
past discrimination on the plaintiffs, the 
small percentage of minorities elected to 
public office in the area, the absence of 
any blacks elected to the Louisiana Su-
preme Court from the First District, and 
the lack of any justifiable reason to con-
tinue the practice of electing two Justices 
at-large from the New Orleans area only, 
plaintiffs contend that the current elec-
tion procedures for selecting Supreme 
Court Justices from the New Orleans 
area dilutes minority voting strength and 
therefore violates the 1965 Voting Rights 

Act, as amended. 

CHISOM v. EDWARDS 2302 

On May 1, 1987, the district court, 659 
F.Supp. 183, dismissed plaintiffs' complaint 
for failure to state a claim upon which 
relief may be granted. In its opinion ac-
companying the dismissal order, the district 
court concluded that section 2 of the Vot-
ing Rights Act does not apply to the elec-
tion of state judges. To support this con-
clusion, the district court relied primarily 
on the amended language in section 2 
which states "to elect representatives of 

their choice." The district court reasoned 
that since judges are not "representatives," 
judicial elections are therefore not within 
the protective ambit of section 2. Focusing 
on a perceived inherent difference between 
representatives and judges, the district 
court stated, "[fludges, by their very defini-
tion, do not represent voters but are 'ap-
pointed [or elected] to preside and adminis-
ter the law.' " (citation omitted). The dis-
trict court further relied on what was un-
derstood to be a lack of any reference to 
judicial elections in the legislative history 
of section 2, and on previous court deci-
sions establishing that the "one person, one 
vote" principle does not apply to judicial 
elections. As to plaintiffs' fourteenth and 
fifteenth amendment challenges, the dis-
trict court determined that plaintiffs had 
failed to plead an intent to discriminate 
with sufficient specificity to support their 
constitutional claims. Plaintiffs appeal the 
district court's dismissal of both their stat-
utory and constitutional claims. 

Di In an opinion just released, the 
Sixth Circuit, addressing a complaint that 
the present system of electing municipal 
judges to the Hamilton County Municipal 
Court in Ohio violates section 2, concluded 
that section 2 does indeed apply to the 
judiciary. Mallory v. Eyrich, — F.2d 
—, No. 87-3838, slip op. (6th Cir. Feb. 12, 
1988). Other than our district court, only 

two district courts have ruled on the cover-
age of section 2 in this context. The Mal-
lory district court, subsequently reversed, 
concluded that section 2 does not extend to 
the judiciary. Mallory v. Eyrich, 666 
F.Supp. 1060 (S.D. Ohio 1987). The other 
district court, Martin v. Allain, 658 
F.Supp. 1183 (S.D.Miss. 1987), determined 
that section 2 does apply to the judicial 
branch. After consideration of the lan-
guage of the Act itself; the policies behind 
the enactment of section 2; pertinent legis-
lative history; previous judicial interpreta-
tions of section 5, a companion section to 
section 2 in the Act; and the position of the 
United States Attorney General on this is-
sue; we conclude that section 2 does apply 
to the election of state court judges. We 
therefore reverse the judgment of the dis-

trict court. 

II. DISCUSSION 

A. The Plain Language of the Act 

The Voting Rights Act was enacted by 
Congress in 1965 for a broad remedial pur-
pose—"to rid the country of racial discrimi-
nation in voting." South Carolina v. Kat-
zenbach, 383 U.S. 301, 315, 86 S.Ct. 803, 
812, 15 L.Ed.2d 769 (1966). Since the incep-
tion of the Act, the Supreme Court has 
consistently interpreted the Act in a man-
ner which affords it "the broadest possible 
scope" in combatting racial discrimination. 
Allen v. State Board of Elections, 393 U.S. 
544, 565, 89 S.Ct. 817, 831, 22 L.Ed.2d 1 
(1969). As a result, the Act effectively 
regulates a wide range of voting practices 
and procedures. See United States v. 
Sheffield Board of Commissioners, 435 
U.S. 110, 122-23, 98 S.Ct. 965, 974-75, 55 
L.Ed.2d 148 (1978). Referred to by the 

Supreme Court as a provision which 
"broadly prohibits the use of voting rules 



2303 CHISOM v. EDWARDS CHISOM v. EDWARDS 2301 

to abridge exercise of the franchise on ra-
cial grounds," Katzenbach, 383 U.S. at 316, 
86 S.Ct. at 812, section 2 of the Voting 
Rights Act of 1965, prior to its amendment 
in 1982, provided as follows: 

No voting qualification or prerequisite to 
voting, or standard, practice, or proce-
dure shall be imposed or applied by any 
State or political subdivision to deny or 
abridge the right of any citizen of the 
United States to vote on account of race 
or color, or in contravention of the guar-
antees set forth in section 1973b(f)(2) of 
this title. 

Congress amended section 2 in 1982 in 
response to the Supreme Court's decision in 
Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 
1490, 64 L.Ed.2d 47 (1980), wherein the 
Court concluded that section 2 operated to 
prohibit only intentional acts of discrimina-
tion by state officials. Thereafter, Con-
gress, in disagreement with the high court's 
pronouncement, amended section 2 with lan-
guage providing that proof of intent is not 
required to successfully prove a section 2 
violation. Instead, Congress adopted the 
"results" test, whereby plaintiffs may pre-
vail under section 2 by demonstrating that, 
under the totality of the circumstances, a 
challenged election law or procedure has 
the effect of denying or abridging the right 
to vote on the basis of race. However, 
while effecting significant change through 
the 1982 amendments, Congress specifical-
ly retained the operative language of origi-
nal section 2 defining the section's cover-
age—"[n]o voting qualification or prerequi-
site to voting or standard, practice, or pro-
cedure shall be imposed...." Section 2, as 
amended in 1982, now provides: 

(a) No voting qualification or prerequi-
site to voting or standard, practice, or 
procedure shall be imposed or applied by 
any State or political subdivision in a 

manner which results in a denial or 
abridgement of the right of any citizen of 
the United States to vote on account of 
race or color, or in contravention of the 
guarantees set forth in section 
1973b(f)(2) of this title, as provided in 
subsection (b) of this section. 

(b) A violation of subsection (a) is es-
tablished if, based on the totality of cir-
cumstances, it is shown that the political 
processes leading to nomination or elec-
tion in the State or political subdivision 
are not equally open to participation by 
members of a class of citizens protected 
by subsection (a) of this section in that 
its members have less opportunity than 
other members of the electorate to par-
ticipate in the political process and to 
elect representatives of their choice. 
The extent to which members of a pro-
tected class have been elected to office in 
the State or political subdivision is one 
circumstance which may be considered: 
Provided, That nothing in this section 
establishes a right to have members of a 
protected class elected in numbers equal 
to their proportion in the population. 

Section 14(c)(1), which defines "voting" 
and "vote" for purposes of the Act, sets 
forth the types of election practices and 
elections which are encompassed within the 
regulatory sphere of the Act. Section 
14(c)(1) states, 

The terms "vote" or "voting" shall in-
clude all action necessary to make a vote 
effective in any primary, special, or gen-
eral election, including, but not limited 
to, registration, listing pursuant to this 
subchapter or other action required by 
law prerequisite to voting, casting a bal-
lot, and having such ballot counted prop-
erly and included in the appropriate to-
tals of votes cast with respect to candi-
dates for public or party office and prop-

ositions for which votes are received in 
an election. 

Clearly, judges are "candidates for public 
or party office" elected in a primary, spe-
cial, or general election; therefore, section 
2, by its express terms, extends to state 
judicial elections. This truly is the only 
construction consistent with the plain lan-
guage of the Act.' 

In Dillard v. Crenshaw County, 831 
F.2d 246 (11th Cir.1987), the Eleventh Cir-
cuit addressed the issue of the coverage of 
section 2. In Dillard, the court rejected 
the defendant county's implicit argument 
that the election of an at-large chairperson 
of a county commission was not covered by 
section 2 due to that position's administra-
tive, as opposed to legislative, character. 
The Dillard court stated, 

Nowhere in the language of Section 2 
nor in the legislative history does Con-
gre.,s condition the applicability of Sec-
tion 2 on the function performed by an 
elected official. The language is only 
and uncompromisingly premised on the 
fact of nomination or election. Thus, on 
the face of Section 2 it is irrelevant that 
the chairperson performs only adminis-
trative and executive duties. It is only 
relevant that Calhoun County has ex-
pressed an interest in retaining the post 
as an electoral position. Once a post is 
open to the electorate, and if it is shown 
that the context of that election creates a 
discriminatory but corrigible election 
practice, it must be open in a way that 
allows racial groups to participate equal-
ly. 

Id. at 250. 

The State asserts that by amending sec-
tion 2 in 1982, Congress intentionally graft-

I. Evidence of congressional intent to reach 
all types of elections, regardless of who or 
what is the object of the vote, is the fact that 

ed a limitation on section 14(c)(1) that "can-
didates for public or party office" only 

include "representatives"; since judges are 
not "representatives," state judicial elec-
tions are exempt from the protective mea-
sures of the Act. In making this conten-
tion, the State, as well as the district court, 
points to the distinctive functions of judges 
as opposed to other elected officials. Spe-
cifically, the district court, citing Wells v. 
Edwards, 347 F.Supp. 453 (M.D.La. 1972), 
affd, 409 U.S. 1095, 93 S.Ct. 904, 34 
L.Ed.2d 679 (1973), notes that the "one 
person, one vote" principle of apportion-
ment has been held not to apply to the 
judicial branch of government on the basis 
of this distinction. See also Voter Infor-
mation Project v. City of Paton Rouge, 
612 F.2d 208 (5th Cir.1980). In Wells, the 
plaintiff sought reapportionment of the 
Louisiana Supreme Court Judicial Districts 
in accordance with one person, one vote 
principles. The Wells court rejected the 
plaintiff's claim, reasoning that the "pri-
mary purpose of one-man, one-vote appor-
tionment is to make sure that each official 
member of an elected body speaks for ap-
proximately the same number of constitu-
ents." Wells, 347 F.Supp. at 455. The 
district court then concluded that since 
judges do not represent, but instead serve 
people, the rationale behind one person, one 
vote apportionment of preserving a repre-
sentative form of government is not rele-
vant to the judiciary. Id. 

In Voter Information, this Court, bound 
by the holding in Wells due to the Supreme 
Court's summary affirmance of that deci-
sion, rejected the plaintiffs' claim for reap-

votes on propositions are within the purview 
of the Act. Section 14(c)(1). 



2305 CHISOM v. EDWARDS CHISOM v. EDWARDS 2306 

portionment of judicial districts on the one 
person, one vote theory. Voter Informa-
tion, 612 F.2d at 211. However, the Voter 
Information Court then emphasized that 
the plaintiffs further asserted claims of 
racial discrimination under the fifteenth 
amendment which resulted in the dilution 
of black voting strength. Recognizing the 
difference between the two types of claims, 
the Court expressly rejected the applicabili-
ty of the Wells decision to claims of racial 
discrimination, stating, 

[T]he various 'one man one vote' cases 
involving Judges make clear that they do 
not involve claims of race discrimination 
as such. 

To hold that a system designed to di-
lute the voting strength of black citizens 
and prevent the election of blacks as 
Judges is immune from attack would be 
to ignore both the language and purpose 
of the Fourteenth and Fifteenth Amend-
ments. The Supreme Court has fre-
quently recognized that election schemes 
not otherwise subject to attack may be 
unconstitutional when designed and oper-
ated to discriminate against racial minori-
ties. 

Id. (footnote omitted). 

We, like the Voter Information Court, 
are bound by the Supreme Court's affirm-
ance of Wells and its holding that the one 
person, one vote principle does not extend 
to the judicial branch of government. 

2. The distinction between equal protection 
principles applicable to claims based on one 
person, one vote principles of apportionment 
and those based on racial discrimination is 
not without prior Supreme Court precedent. 
See White v. Regester, 412 U.S. 755, 93 S.Ct. 
2332, 37 L.Ed.2d 314 (1973) (Court reversed 
decision of district court that reapportion-
ment plan for Texas house of Representa-
tives violated one person, one vote princi-
ples, but affirmed the district court's conclu-

However, the district court's reliance on 
Wells in the instant case is misplaced as we 
are not concerned with a complaint seeking 
reapportionment of judicial districts on the 
basis of population deviations between dis-
tricts. Rather, the complaint in the instant 
case involves claims of racial discrimination 
resulting in vote dilution under section 2 of 
the Voting Rights Act and the fourteenth 
and fifteenth amendments. Therefore, the 
district court erred to the extent it relied on 
Wells in support of its conclusion that sec-
tion 2 does not apply to the judiciary.2 

The Voting Rights Act was enacted, in 
part, to facilitate the enforcement of the 
guarantees afforded by the Constitution. 
Indeed, section 2, as originally written, no 
more than elaborated on the fifteenth 
amendment, providing statutory protection 
consonant with that of the constitutional 
guarantee. Mobile, 446 U.S. at 60, 100 
S.Ct. at 1496. Therefore, the reasoning 
utilized by the Court in Voter Information 
to extend the protection from racial dis-
crimination provided by the fourteenth and 
fifteenth amendments to the judiciary com-
pels a conclusion by this Court that the 
protection from racial discrimination pro-
vided by section 2 likewise extends to state 
judicial elections. 

It is difficult, if not impossible, for this 
Court to conceive of Congress, in an ex-
press attempt to expand the coverage of 
the Voting Rights Act, to have in fact 

sion that a particular portion of the plan 
unlawfully diluted minority voting strength.). 
See also Gaffney v. Cummings, 412 U.S. 735, 
751, 93 S.Ct. 2321, 2330, 37 L.Ed.2d 298 
(1973) ("A districting plan may create multi-
member districts perfectly acceptable under 
equal population standards, but invidiously 
discriminatory because they are employed 'to 
minimize or cancel out the voting strength of 
racial or political elements of the voting pop-
ulation.' ") (citations omitted). 

amended the Act in a manner affording 
minorities less protection from racial dis-
crimination than that provided by the Con-
stitution. We conclude today that section 
2, as amended in 1982, provides protection 
commensurate with the fourteenth and fif-
teenth amendments; therefore, in accord-
ance with this Court's decision in Voter 
Information, section 2 necessarily em-
braces judicial elections within its scope. 
Any other construction of section 2 would 
be wholly inconsistent with the plain lan-
guage of the Act and the express purpose 
which Congress sought to attain in amend-
ing section 2; that is, to expand the protec-
tion of the Act. 

B. The Legislative History of Section 2 

Our conclusion today finds further sup-
port in the legislative history of the 1982 
amendments to section 2. An overriding 
principle which guides any analysis of the 
legislative history behind the Voting Rights 
Act is that the Act must be interpreted in a 
broad and comprehensive manner in ac-
cordance with congressional intent to com-
bat racial discrimination of any kind in all 
voting practices and procedures. Thus, in 
the absence of any legislative history war-
ranting a conclusion that section 2 does not 
apply to state judicial elections, the only 
acceptable interpretation of the Act is that 
such elections are so covered. See Shef-
field, 435 U.S. 110, 98 S.Ct. 965.3 

As previously noted, Congress amended 
section 2 in direct response to the Supreme 
Court's decision in Mobile v. Bolden, 

3. In She I ield, the Supreme Court declined to 
adopt a narrowing construction of § 5 and 
the preclearance requirements of the Act 
whereby § 5 would cover only counties and 
political units that conduct voter registration. 
"[I]n view of the structure of the Act, it 
would be unthinkable to adopt the District 

The Senate Report states that amended 
[section] 2 was designed to restore the 
"results test"—the legal standard that 
governed voting discrimination cases pri-
or to our decision in Mobile v. Bolden. 
.... Under the "results test," plaintiffs 
are not required to demonstrate that the 
challenged electoral law or structure was 
designed or maintained for a discrimina-
tory purpose. 

Thornburg v. Gingles, 478 U.S. 30, 106 
S.Ct. 2752, 2763 n. 8, 92 L.Ed.2d 25 (1986) 
(citations omitted). In amending section 2, 
Congress preserved the operative language 
of subsection (a) defining the coverage of 
the Act and merely added subsection (b) to 
adopt the "results test" for proving a viola-
tion of section 2. In fact, the language 
added by Congress in subsection (b)—"to 
participate in the political process and to 
elect representatives of their choice"—is 
derived almost verbatim from the Supreme 
Court's standard governing claims of vote 
dilution on the basis of race set forth in 
White v. Regester, 412 U.S. 755, 93 S.Ct. 
2332, 37 L.Ed.2d 314 (1973), prior to Mobile 
v. Bolden. See S.Rep.No. 417, 97th Cong., 
2d Sess. 27, reprinted in 1982 U.S. Code 
Cong. & Admin. News 177, 205 (Congress' 
stated purpose in adding subsection (b) was 
to "embod[y] the test laid down by the 
Supreme Court in White."). In White, the 
Court stated "[t]he plaintiffs' burden is to 
produce evidence ... that [the minority 
groups'] members had less opportunity 
than did other residents in the district to 
participate in the political processes and to 

Court's construction unless there were per-
suasive evidence either that § 5 was intended 
to apply only to changes affecting the regis-
tration process or that Congress clearly man-
ifested an intention to restrict § 5 cover-
age...." 435 U.S. at 122, 98 S.Ct. at 974. 



2307 CHISOM v. EDWARDS 

elect legislators of their choice." Id. at 
766, 93 S.Ct. at 2339.4 

Further, contrary to the statement in the 
district court's opinion that the legislative 
history of the 1982 amendments does not 
address the issue of section 2 applying to 
the judiciary, Senator Orrin Hatch, in com-
ments contained in the Senate Report, stat-
ed that the term "'political subdivision' 
encompasses all governmental units, in-
cluding city and county councils, school 
boards, judicial districts, utility districts, 
as well as state legislatures." S.Rep. 417 
at 151, 1982 U.S.Code Cong. & Admin. 
News 323 (emphasis added). While the 
above statement by Senator Hatch is not a 
definitive description of the scope of the 
Act, we believe the statement provides per-
suasive evidence of congressional under-
standing and belief that section 2 applies to 
the judiciary, especially since the Report is 
silent as to any dissent by senators from 
Senator Hatch's description. 

Additionally, the Senate and House hear-
ings on the various bills regarding the ex-
tension of the Voting Rights Act in 1982 
are replete with references to the election 
of judicial officials under the Act. The 
references primarily occur in the context of 
statistics presented to Congress indicating 
advances or setbacks of minorities under 
the Act. The statistics chart the election of 
minorities to various elected positions, in-
cluding judges. See Extension of the Vot-
ing Rights Act: Hearings on H.R. 1407, 
H.R. 1731, H.R. 2942, and H.R. 3112, H.R. 
3198, H.R. 3473 and H.R. 3498 Before the 

4. It might be argued that since the Supreme 
Court used the term "legislators" and Con-
gress chose "representatives," Congress there-
by rejected language limiting the coverage of 
§ 2 to legislators. The better analysis is that 
Congress did not use the term "representa-
tives" with a specific intent to limit the sec-
tion's application to any elected officials. 

Subcomm. on Civil and Constitutional 
Rights of the House Comm. on the Judi-
ciary, 97th Cong.lst sess. 38, 193, 239, 280, 
503, 574, 804, 937, 1182, 1188, 1515, 1528, 
1535, 1745, 1839, 2647 (1981); Voting 

Rights Act: Hearings on S. 53, S. 176'1, S. 
1975, S. 1992, and H.R. 3112 Before the 
Subcomm. on the constitution of the 
Senate Comm. on the Judiciary, 97th 
Cong.2d Sess. 669, 748, 788-89 (1982). 
Once again, the legislative history does not 
reveal any dissent from the proposition 
that such statistics were properly con-
sidered by Congress in amending the Act. 
Finally, throughout the Senate Report on 
the 1982 amendments to section 2, Con-
gress uses the terms "officials," "candi-
dates," and "representatives" interchange-
ably when explaining the meaning and pur-
pose of the Act. This lack of any consist-
ent use of the term "representatives" indi-
cates that Congress did not intentionally 
choose that term in an effort to exclude 
certain types of elected officials from the 
coverage of the Act. 

In contrast to the examples of legislative 
history which plaintiffs cite in support of 
their position that section 2 applies to state 
judicial elections, the State offers no con-
vincing evidence in the legislative history 
contrary to the plaintiff's interpretation of 
the Act. Instead, the State relies primarily 
on the plain meaning of the word "repre-
sentative" to assert that judges are exempt 
from the Act. The State's position is un-
tenable.' Judges, while not "representa-

Had Congress wished to do so, it could have 
easily promulgated express language to effec-
tuate that intent. 

5. The State asserts that the Dole compromise 
prohibiting proportional representation evi-
dences congressional intent that § 2 only ap-
ply to legislative officials. Proportional rep-
resentation, the State continues, is relevant 

CHISOM v. EDWARDS 

tives" in the traditional sense, do indeed 
reflect the sentiment of the majority of the 
people as to the individuals they choose to 
entrust with the responsibility of adminis-
tering the law. As the district court held 
in Martin v. Allain: 

[i]udges do not "represent" those who 
elect them in the same context as legisla-
tors represent their constituents. The 
use of the word "representatives" in Sec-
tion 2 is not restricted to legislative rep-
resentatives but denotes anyone selected 
or chosen by popular election from 
among a field of candidates to fill an 
office, including judges. 

658 F.Supp. at 1200. 

C. Section 5 and Section 2 

The plaintiffs further support their posi-
tion that judicial elections are covered by 
section 2 by citing to the recent case of 
Haith v. Martin, 618 F.Supp. 410 (E.D.N.C. 
1985), affd, - U.S. -, 106 S.Ct. 3268, 
91 L.Ed.2d 559 (1986), wherein the district 
court held that judicial elections are cover-
ed by section 5 and the preclearance re-
quirements of the Act. In Haith, the de-
fendant state officials sought to exempt 
the election of superior court judges in 
North Carolina from the preclearance re-
quirements of section 5 by relying on the 
cases holding that the one person, one vote 
principle does not apply to the judicial 
branch of government. In an analysis 
strikingly similar to that employed by the 

to the legislature; therefore, Congress in-
tended § 2 to apply only to the election of 
legislators. However, what belies the State's 
argument is that proportional representation 
may occur in any election wherein the peo-
ple elect individuals to comprise a group. 
For instance, Louisiana elects seven Justices 
to comprise the Supreme Court. Certainly, 
the prohibition on proportional representa-
tion in § 2(b) applies in such a situation to 

2308 

Court in Voter Information, the district 
court in Haith rejected the defendants' ar-
guments as misplaced due to the fact that 
the plaintiff's claim was one based on dis-
crimination, not malapportionment. The 
Haith court stated "[a]s can be seen, the 
Act applies to all voting without any limita-
tion as to who, or what, is the object of the 
vote." 618 F.Supp. at 413. See also Kirk-
sey v. Allain, 635 F.Supp. 347, 349 (S.D. 
Miss.1986) ("Given the expansive interpre-
tation of the Voting Rights Act and § 5, 
this Court is compelled to agree with the 
pronouncement in Haith v. Martin" that 
section 5 applies to the judiciary.). 

In the instant case, the State argues that 
the Supreme Court's affirmance of Haith 
does not compel a conclusion that section 2 
applies to judicial elections as section 5 
involves the mechanics of voting, while sec-
tion 2 involves the fundamental right to 
vote for those who govern. We reject this 
asserted distinction. If, for instance, Loui-
siana were to enact an election statute pro-
viding that no blacks would be able to vote 
in elections for Louisiana Supreme Court 
Justices, it is undisputed, after Haith, that 
such a statute would be invalidated under 
the preclearance requirements of section 5. 
To hold, as the State asserts, that such an 
egregious statute would not be subject to 
the requirements of section 2 as well would 
lead to the incongruous result that, while 
Louisiana could not adopt such a statute in 
1988, if that statute were in effect prior to 

prevent a legal requirement that the number 
of blacks on the Louisiana Supreme Court 
correspond to the percentage of blacks in the 
Louisiana population. Moreover, the State 
conceded at oral argument that executive 
officials could be covered by § 2, underlying 
their assertion that congressional fear of pro-
portional representation evidenced intent 
that § 2 only apply to the legislature. 



2309 CHISOM v. EDWARDS CHISOM v. EDWARDS 2310 

1982, minorities could only challenge the 
statute under the Constitution and not the 
Voting Rights Act. Such a result would be 
totally inconsistent with the broad remedial 
purpose of the Act. Moreover, section 5 
and section 2, virtually companion sections, 
operate in tandem to prohibit discriminato-
ry practices in voting, whether those prac-
tices originate in the past, present, or fu-
ture. Section 5 contains virtually identical 
language defining its scope to that of sec-
tion 2—"any voting qualification or prereq-
uisite to voting, or standard, practice, or 
procedure with respect to voting...." 
Therefore, statutory construction, consist-
ency, and practicality point inexorably to 
the conclusion that if section 5 applies to 
the judiciary, section 2 must also apply to 
the judiciary. See Painpanga Mills v. 
Trinidad, 279 U.S. 211, 217-218, 49 S.Ct. 
308, 310, 73 L.Ed. 665 (1929). 

D. The Attorney General's Interpreta-
tion 

In United States v. Sheffield Board of 
Commissioners, 435 U.S. at 131, 98 S.Ct. 
at 979, the Supreme Court concluded that 
the contemporaneous construction of the 
Act by the Attorney General is persuasive 
evidence of the original congressional 
understanding of the Act, "especially in 
light of the extensive role the Attorney 
General played in drafting the statute and 
explaining its operation to Congress." 
Since its inception, the Attorney General 
has consistently supported an expansive, 
not restrictive, construction of the Act. 
Testifying at congressional hearings prior 
to the passage of the Act in 1965, the 
Attorney General stated that "every elec-
tion in which registered voters are permit-
ted to vote would be covered" by the Act. 
Voting Rights: Hearing Before Subcomin. 
No. 5 of the House Judiciary Comm., 89th 

Cong. 1st Sess. (1965), at 21. See also 
Allen, 393 U.S. at 566-67, 89 S.Ct. at 832-
33. Continuing the trend of broadly inter-
preting the Act to further its remedial pur-
pose, the Attorney General has filed an 
amicus curiae brief in the instant case in 
which he maintains that the "plain meaning 
of [the language in section 2] reaches all 
elections, including judicial elections" and 
that the pre-existing coverage of section 2 
was not limited by the 1982 congressional 
amendments. This construction of the Act 
by the Attorney General further bolsters 
our holding today that section 2 does apply 
to state judicial elections. 

E. Plaintiffs' Constitutional Claims 

Plaintiffs also appeal the district court's 
dismissal of their constitutional claims for 
failure to plead specific discriminatory in-
tent. In their complaint, plaintiffs allege, 
in pertinent part: 

The defendant's actions are in violation 
of the Fourteenth and Fifteenth amend-
ments to the United States Constitution 
and 42 U.S.C. Section 1983 in that the 
purposes and effect of their actions is to 
dilute, minimize, and cancel the voting 
strength of the plaintiffs. 

[2, 3] In the instant case, the district 
court was correct in concluding that dis-
criminatory purpose is a prerequisite to 
recovery under the fourteenth and fif-
teenth amendments. See Washington v. 
Davis, 426 U.S. 229, 239-241, 96 S.Ct. 2040, 
2047-48, 48 L.Ed.2d 597 (1976). However, 

the district court erred in finding that 
plaintiffs' complaint did not establish a the-
ory of "discriminatory intent." In Voter 
Information, this Court held that if "plain-
tiffs can prove that the purpose and opera-
tive effect of such purpose" of the chal-
lenged electoral practices is to dilute minor-

ity voting strength, the plaintiffs are enti-
tled to some form of relief. Voter Infor-
mation, 612 F.2d at 212. When compared 
with the complaint in Voter Information, 
the plaintiffs' complaint in the instant case 
is sufficient to raise a claim of racial dis-
crimination under the fourteenth and fif-
teenth amendments.' 

III. CONCLUSION 

Where racial discrimination exists, it is 
not confined to elections for legislative and 
executive officials; in such instance, it ex-
tends throughout the entire electoral spec-
trum. Minorities may not be prevented 
from using section 2 in their efforts to 

6. In Voter Information, the plaintiffs' com-
plaint alleged, 

25. The sole purpose of the present at-
large system of election of City Judge is to 
ensure that the white majority will contin-
ue to elect all white persons for the office 
of City Judge. 

26. The present at-large system was in-
stituted when "Division B" was created as 
a reaction to increasing black voter regis-

combat racial discrimination in the election 
of state judges; a contrary result would 
prohibit minorities from achieving an effec-
tive voice in choosing those individuals soci-
ety elects to administer and interpret the 
law. The right to vote, the right to an 
effective voice in our society, cannot be 
impaired on the basis of race in any in-
stance wherein the will of the majority is 
expressed by popular vote. 

For the reasons set forth above, we re-
verse the judgment of the district court and 
remand for proceedings not inconsistent 
with this opinion. 

REVERSED AND REMANDED. 

tration and for the express purpose of di-
luting and minimizing the effect of the 
increased black vote. 

27. In Baton Rouge, there is a continu-
ing history of "bloc voting" under which 
when a black candidate opposes a white 
candidate, the white majority consistently 
casts its votes for the white candidate, irre-
spective of relative qualifications. 

612 F.2d at 211. 

Adm. Office, U.S. Courts—West Publishing Company, Saint Paul, Minn.