Memo in Support of Defendant's Motion to Dismiss

    IN THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

No. 87-3463 

RONALD CHISOM, et al., 

Plaintiffs-Appellants, 
V . 

EDWIN EDWARDS, et al., -

Defendants-Appellees. 

RECORD EXCERPTS  

WILLIAM P. QUIGLEY 
631 St. Charles Avenue 
New Orleans, LA 70130 
(504) 524-0016 

ROY RODNEY 
643 Camp Street 
New Orleans, LA 70130 
(504) 586-1200 

JULIUS L. CHAMBERS 
• CHARLES STEPHEN RALSTON 
C. LANI GUINIER 
PAMELA S. KARLAN 

99 Hudson Street, 16th Floor 
New York, New York 10013 
(212) 219-1900 

RON WILSON 
Richards Building, Suite 310 
837 Gravier Street 
New Orleans, LA 70112 
(504) 525-4361 

Counsel for Plaintiffs-
Appellants 



TABLE OF CONTENTS  

Page  

Docket Entries   1 

Judgment   4 

Opinion of the District Court Granting 
Defendants' Motion To Dismiss   5 

Amended Complaint   17 



OFF. 

. . 
DOCKET 

YR. NUMBER 
FILING TE 1111 41*-41milattitA--- . - DEMAND 

MO D'' YEAR pi..E, 23 

1110 
JUDGE/ 

G. NO. 
COUNTY JURY 

OEM. 
DOCKET 

YR. NUMBER 

053L 2 86 4075 09 19 86 3 441 

Nearest $1,000 
)1-16 

3LBG 

PLAINTIFFS 

RONALD CHISCM 

MARIE BOOKMAN 

WALTER WILLARD 

MARC MORIAL 

86- 4075 

A -6 
LOUISIANA VOTER REGISTRATION/ 

EDUCATION CRUSADE 

HENRY A. DILLON,. Ult. 
• •• 

02.410 

CLASS ACTION 

22071 

DEFENDANTS 

86 4075 

EDWIN EDWARDS, in his 

capacity as Governor of the 

State of Louisiana 

JAMES H. 

capacity 

State of 

BROWN, in his 

as Secretary of the 

Louisiana 

JERRY M. FOWLER, in his 

capacity as Commissioner of 
Elections of the State of. 

Louisiana 

AMENDED,COMPLT 9-30-86  

No New Parties Added 

CAUSE 

(CITE THE U.S. CIVIL STATUTE UNDER WHICH THE CASE 
IS FILED AND WRITE A BRIEF STATEMENT OF CAUSE) 

'424,..U.SC-197.1,i,1-983; 28 USC 1331, 1343: VOTING RIGHTS VIOLATIONS 

twoksJA. 
. Quigley, Esq. 

1 St. Charles Avenue 
New Orleans, LA 70130 

- (504) 524-0016 

For: Plaintiffs  

• • • 

ATTORNEYS 

Ron Wilson, Esq. 
Richards Building 

Suite 310 
837 Gravler Street 
New Orleans, LA 70112 
(504) 525-4361 

For: Plaintiffs  

Roy Rodney, Esq. 
643 Magazine St. 
New Orleans, LA 70130 
(504) 586-1200 
For: Plaintiffs  

C. Lani Guinier, Esq./ Pamela S. Karlan, Esq. 
99 Hudson Street, 16th Fl. 
New York, New York 10013 
For: Plaintiffs  

CHECK 
HERE 

IF CASE WAS 
FILED IN . 
FORMA 
PAUPERIS 

FILING FEES PAID 

Eavelyn T. Brooks 
Asst. Atty. General 
La. Dept. of Justice 
234 Loyola Ave., Suite 700 
New Orleans, LA 70112-2096 
(504) 568-5575 
For: Secretary of State  

SPECIAL.ASSISTANT -ATTORNEY GENERALS 

M. Truman Woodward, Jr. 
1100 Whitney Bldg. 
New Orleans, LA 70130 

Black G. Arata 
210 St. Charles Avenue 
Suite 4000 
New Orleans, LA 70170 

A. R. Christovich 
1900 American Bank Bldg. 
New Orleans, LA 70130 

Noise W. Dennery 
21st Floor Pan American Life Center 
601 Poydras St. 
New Orleans. LA 70130  

STATISTICAL CARDS 

_DATE 

;7Ø   

RECEIPT NUMBER 

2' 
C.D. NUMBER 

:41%2 1/2 15-

CARD 

JS-5 

JS-6 

DATE MAILED 

UNITED STATES DISTRICT COURT DOCKET DC-111 (Rev. 9/81) 



DATE 

9/19/86 

9-23-86 

9-24-86 

9-30-86 

9-30-86 

10-7-86 

10-24-86 

11-4-86 

11/5/86 

12-9-86 

12-18-86 

.1-20!-87 

1-28-87 

2/4/87 

2/4/87 

3/18/87 

4/6/87 

4/13/87 

4/10/87 

5/1/87 

5/7/87 

5/8/87 

9 

NR. 

1 

2 

3 

4 

5 

6 

7 

8 

10 

••• 

11 

12 

13 

.14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

XX 

Complt., 3 sums issd. 

Pltfs' req for convening a 3 judge court declines to enter an ex parte order & will 
hold a hrg on 10-15-86 at 2:30 p.m. & parties are directed to file memo by 10-10-86 
(CSJO dktd 9-24-86. 

Ret on S & C to James H. Brown, Jerry M. Fowler & Edwin Edwards svd 9-24-86. 

Pltf's amended complt. 

Pltf's ntc of amended complt. 

Mtn of Sect. of State & ORDER that hrg be CONT to 11-12-86 at 10:00 a.m. w/memos 
due by 11-5-86 at 2:30 p.m. (CSJO 10-9-86 dktd 10-14-86. 

Mtn of defts & ORDER that ext of time to 11/13/86 to answer is GRANTED. (CSJO 
10-27-86 dktd 10-29-86. 

Pltfs' memo in re need for 3-judge court. 

Memo of Sect. of State in opp to pltfs' req for district dourt of 3 judges. 

Hrg to determine if case will be 3 judge court - case will be tried as one court 
case. (CSJO dktd 11-14-86. 

Ntc of call dkt set.for 12-10-86 at 9:45 a.m. bfr Judge. (CLERK) dktd 12-3-86. 

Letter from Eavelyn T. Brooks to Judge dated 12-5-86 in re call dkt. 

Pltf's mtn & ORDER that Roy Rodney & C. Lani Guinier be entered as additional 
counsel. (CSJO 12-20-86 dktd 12-22-86. 

Ntc of call dkt set for 2-11-87 @ 9:45 a.m. before Judge. (Clerk) dktd 1-20-87. 

Ntc of call dkt set for 2-11-87 is RESET to 2-25-87 at 9:45 a.m. before Judge. 
(CLERK) dktd 1-29-87. 

M.E.(2/4/87) ORDERED that status conf beheld 2/18/87 at 5:15 pm. (CSjr) dktd 2-4-87 

Letter from William Quigley to Ms Nelson in re: conversation on 1/23/87. 

Mtn of defts to dismiss for failure to state a claim upon which relief can be 
granted pursuant to Rule 12(b)(6); hrg set 4/15/87 at 10:00 a.m. bfr Judg. 

Pltfs' memo in oppos to clefts' mtn to dismiss. 
, 

Repy Memo by defts to pltfs' opp. 

Pltf's mtn & ORDERED that Pamela S. Karlan be entered as counsel of record for pltf 
(CSJO 4/13/87 dktd 4/15/87. 

OPINION that defts' mtn to dismiss for failure to state a claim upon which relief 
can be granted is GRANTED;unless pltfs' complt is amended w/in 10 days of entry 
of this opinion clerk of Court is directed to enter judg dismissing. pltfs' claim 
at their costs (CSjr) 5/1/87 dktd 5/1/87. 

Pltf's  NOTICE OF APPEAL to 5th Circuit from judg of 5/1/87 granting deft's mtn to 
dismiss. 

Notice of Appeal forwarded to all parties. (dim) 

eot  



'1 

DC 111A 
(Rev. 1/75) 

CIVIL DOCKET CONTINUATION SHEET 

• 

PLAINTIFF 

RONALD CHISSOM, ET AL 

DEFENDANT 

EDWIN EDWARDS, ET AL 
86-4075 A 

DOCKET NO 

PAGE_Z_OF PAGES 

DATE NR. PROCEEDINGS 

5/26/87 

6-8-87 

6-17-87 

6-19-87 

24 Entry of dismissal of appeal on 5/22/87 from the 5th Circuit (GANUCHEAU). 

25 

26 

XX 

JUDGMENT is ORDERED in favor of defts & agst pltfs, dismissing pltfs' complt 
w/prej, pltfs to bear all costs. (CLERK - approved CSJO 6-8-87 dktd 6-8-87. 

CLOSED CAT: 
Pltfs' ntc 2Lamsgl.from judg of 6-8-87. 

Ntc of Appeal forwarded to all parties. (JHD) 



UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA 

RONALD CHISOM, ET AL 

VERSUS 

EDWIN EDWARDS, ET AL 

in -0 '01 NH k, ut 

CIVIL ACTION 

NO. 86-4075 

SECTION: "A" 

§§§§§§§§§§§§ 

JUDGMENT  

Considering the Court's opinion filed herein, accordingly, 

IT IS ORDERED, ADJUDGED AND DEC= that there be judgment herein in favor 

of defendants, EDWIN EDWARDS, in his capacity as Governor of the State of Louisi-

ana, JAMES H. BROWN, in his capacity as Secretary of State of Louisiana, and 

JERRY M. FOWLER, in his capacity as Commissioner of Elections of.the State of 

Louisiana, and against plaintiffs, RONALD CHISOM, MARIE BOOKMAN, WALTER .WILLARD, 

MARC MORIAL, LOUISIANA VOTER REGISTER/EDUCATION CRUSADE and HENRY A. DILIDN, 

dismissing plaintiffs' • complaint, 

costs. 

New Orleans, Louisiana, this 

APPROVED AS TO FORM: 

-/ 
L.. 

liNTTED STATES DISTRICT( 

S6V1 

pq. Et4':'t 019 \I 

with prejudice, and plaintiffs to bear all 

day of June, 1987. 

.;. 
'LORETTA G. WHYTE 
CLERK OF COURT 



RONALD CHISOM, El' AL 

VERSUS 

EDWIN EDWARDS, ET AL 

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF LOUISIANA 

§§§§§§§§§§§§ 

vo 4514 
t#Yf 414 01 

ciym. AcifioN 

J. 86-4075 

SECTION: "A" 

OPINION 

This matter is before the Court on defendants' motion to dismiss for failure 

to state a claim upon which relief can be granted pursuant to F.R.Civ.P. 12(b)(6). 

For the foregoing reasons, defendants' motion is GRANTED. 

FACTS AND ALLEGATIONS  

Ronald Chisom, four other black plaintiffs and the Louisiana Voter Regis-

tration Education Crusade filed this class action suit on behalf of all blacks 

registered to vote in Orleans Parish. Plaintiffs' complaint challenges the 

process of electing Louisiana Supreme Court justices from the First District of 

the State Supreme Court. The complaint alleges that the system of electing two 

at-large Supreme Court Justices from the Parishes of Orleans, St. Bernard, Plaque-

mines and Jefferson violates the 1965 Voting Rights Act, as amended, 42 U.S.C. 

§ 1973, the fourteenth and fifteenth amendments to the United States Federal Con-

stitution and, finally, 42 U.S.C. §* 1983. Plaintiffs argue that the election 

system impermissibly dilutes, minimizes and cancels the voting strength of 

blacks who are registered to vote in Orleans Parish. 

More specifically, plaintiffs' original and amended complaint avers that the 

First Supreme Court District of Louisiana contains approximately 1,102,253 resi-

dents of which 63.36%, or 698,418 are white, and 379,101, or 34.4% are black. 

The First Supreme Court District has 515,103 registered voters, of whic,ly 68% 
-vad......11.111wwwaimiliNt 

are white, and 31.61% are black. Plaintiffs 

voa -A-ONL 
WI OF ENTRY 

Supreme 



Court District of Louisiana should be divided into two' single districts. Plain-

tiffs suggest that because Orleans Parish's present population is 555,515 persons, 

roughly half the present First Supreme Court District, the most logical division 

is to have Orleans Parish elect one Supreme Court Justice and the Parishes of 

Jefferson, St. Bernard and Plaquemine together elect the other Supreme Court 

Justice. If plaintiffs' plan were to be carried out, plaintiffs contend the 

present First Supreme Court District encompassing only Orleans Parish would then 

have a black population and voter registration comprising a majority of the 

district's population. More specifically, plaintiffs assert presently 124,881 of 

the registered voters in Orleans are white, comprising 47.9% of the plaintiffs' 

proposed district's voters; while 134,492 of the registered voters in Orleans 

are naw black, comprising 51.6% of the envisioned district's voters. The other 

district comprised of Jefferson, Plaquemines and St. Bernard Parishes and would 

have a substantially greater white population than black, according to plaintiffs' 

plan. 

• Plaintiffs seek class certifidation of approximately 135,000 black residents 

of Orleans Pariah, wham plaintiffs allege suffer from diluted voting strength as 

a result of the present at-large election system. Additionally, plaintiffs seek 

a preliminary and permanent injunction against the defendants restraining the 

further election of Justices for the First Supreme Court District until this 

Court makes a determination on the merits of plaintiffs' challenge. Further, 

plaintiffs seek an order requiring defendants to reapportion the First Louisiana 

Supreme Court in a manner which "fairly recognizes the voting strengths of minor-

ities in the New Orleans area and completely remedies the present dilution of 

minority voting strength." (Plaintiffs' Complaint, p. 7). Plaintiffs also seek 

an order requiring compliance with the Voting Rights Act and, finally, a declara-

tion from this Court that the Supreme Court election system violates the Voting 



Rights Act and the fourteenth and fifteenth amendments to the Federal Constitu-

tion. 1/ 

Defendants do not dispute the figures presented by plaintiffs in their 

amended ccmplaint. Instead, they contend that section 2 of the Voting Rights 

Act of 1965, as amended, the fourteenth and fifteenth amendments to the United 

States Federal Constitution and 42 U.S.C. § 1983 fail to provide plaintiffs grounds 

upon which relief can be granted for plaintiffs' allegation of diluted black 

voting strength. 

SECTION 2 OF THE VOTING RIGHTS ACT OF 1965 DOES NCT APPLY TO THE INSTANT ACTION  

Prior to 1982, section 2 of the Voting Rights Act (42U.S.C. § 1973), "Denial 

or Abridgement of Rights to Vote on Account of Race or Color Through Voting 

Qualifications or Prerequisites," read as follows: 

No voting qualification or prerequisite to voting, or 
standard, practice, or procedure, 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 guarantees set forth in section 1973b(f)(2) of 
this title. 

Section 2 of the Voting Rights Act was amended as a response to City of Mobile,  

Alabama v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64L.Ed. 47 (1980), in which the 

Supreme Court in a plurality opinion held to establish a violation of section 2 

of the Voting Rights Act, minority voters must prove the contested electoral 

mechanism was intentionally adopted or maintained by state officials for a 

discriminatory purpose. After Bolden, Congress in 1982 revised section 2 to 

make clear that a violation of the Voting Rights Act could be proven by glowing a 

discriminatory effect or result alone. United States v. Marengo County Commis-

sion, 731 F. 2d 1546 n.1 (11th Cir. 1984), appeal dismissed, cert. denied, 105 

1/ Plaintiffs, earlier, sought a three judge court to. hear this complaint which 
was denied by this Court as the terms of 28 U.S.C. § 2284 provide for a three 
judge court when the constitutionality of the apportionment of congressional 
districts or the apportionment of any statewide legislative body is challenged. 
Nowhere does § 2284 provide for convening a three judge court when a judicial 
apportionment is challenged. 

00175 -3-



S.Ct. 375, 83 L.Ed.2d 311. (1984) 2/ Section 2, as amended, 96 Stat. 134, now 

reads: 

(a) No voting qualification or prerequisite 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 rights 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), as provided in subsection (b) of this 
section. 

(b) A, violation of subsection (a) is established if, based 
on the totality of the circumstances, it is shown that the 
political processes leading to nomination for election in the 
State or political subdivision are not equally open to par-
ticipation by members of a class of citizens protected by 
subsection (a) of this section in that its members have less 
opportunity than other mothers of the electorate to partici-
pate in the political process. and to elect representatives  
of their choice. The extent to which members of a protected 
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 protective class elected in numbers 
equal. to. their proportion in the population.• - 
42 -U.S.C. §.1973 (emphasis added). 

Prior to the 1982 amendments to section 2, a three-judge court composed of 

Judges Ainsworth, West and Gordon, headed by Judge West, had the opportunity in 

Wells v. Edwards, 347 F. Supp. 453 (M.D. La. 1972), aff'd, 409 U.S. 1095, 93 

S.Ct. 904, 34 L.Ed.2d 679 (1973), to interpret the application of section 2 in 

Circumstances quite similar to the case at bar. In Wells, a registered black 

voter residing in Jefferson Parish, brought suit seeking a reapportionment of 

the judicial districts frau which the seven judges of the Supreme Court of Louis-

iana are elected. Ms. Wells sought an injunction enjoining the state from holding 

the scheduled Supreme Court Justice elections and an order compelling the Louisiana 

Legislature to enact an apportionment plan in accordance with the "one man, one 

2/ See S.Rep. 97-417, 97 Cong.2d Seas (1982) pp. 15-43 for a complete discus-
sion a -Congress' intent to overturn the section 2 "purposeful discrimination" 
requirement imposed by Mobile v. Bolden. 

00176 
-4-



vote" principle and to reschedule the pending election. On cross motions for 

summary judgment, the three-judge court stated, "We hold that the concept of 

one-man, one vote apportionment does not apply to the judicial brand' of govern-

ment." 342 F. Supp. at 454. The Wells court took notice of Hadley v. Junior  

College District, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970), in which the 

Supreme Court held, "Whenever a state or local government decides to select 

persons by popular election to perform governmental functions, the equal protec-

tion clause of the fourteenth amendment requires that each qualified voter must 

be given an equal opportunity to participate in that election....", 90 S.Ct. 

791, 795 (emphasis added), but distinguished its holding by outlining the special ' 

functions of judges. 

The Wells court noted many courts' past delineations between elected officials 

who performed legislative or executive functions and judges who apply, but not 

create, law/and concluded: . 

'Judges do not represent people, they serve people.' 
Thus, the rationale behind the one-man, one-vote 
principle, which evolved out of efforts to preserve a 
tray representative form of government, is simply not 
relevant to the makeup of the judiciary. 

347 F. Supp. at 455. 

The Wells opinion interpreted section 2 of the Voting Rights Act prior to 

its 1982 amendments, amendments which added the phrase, "[T]o elect representatives 

3/ See, e.g., Stokes v. Fortson, 234 F. Supp. 575 (N.D. Ga. 1964) ("Manifestly, 
judges and prosecutors are not representative in the same sense as they are 
legislators or the executive. Their function is to administer the law, not to 
espouse a cause of a particular constituency"); Holshouser v. Scott, 335 F. 
Supp. 928 (D.D.C. 1971) ("We hold that the one man, one vote rule does not apply 
to state judiciary...."); Buchanan v. Rhodes, 294 F. Supp. 860 (N .D. Ohio 1966) 
("Judges do not represent people, they serve people"); NEW York State Assn. of  
Trial Lawyers v. Rockefeller, 267 F. Supp. 148, 153 (S.D. N.Y. 1967) ("The state 
judiciary, unlike the legislature, is not the the organ responsible for achieving 
representative government.") 

-5-



of their choice." 4/ (See emphasis in quotation 42 U.S.C. 1973, supra.) The 

legislative history of the 1982 Voting Rights Act amendments does not yield a 

definitive statement noting why the word "representative" was added to section 

2. However, in this case, no such statement is necessary, as "to elect represen-

tatives of their choice" is clear and unambigous. 

Judges, by their very definition, do not represent voters but are "appointed 

[or elected] to preside and to administer the law." Black's Law Dictionary, 1968. 

As statements by Hamilton in the Federalist, No. 78 reflect, the distinction be-

tween Judge and representative has long been established in American legal his-

tory: 

If it be said that the legislative body are themselves the 
constitutional judges of their own powers, and that the 
construction they put upon them is conclusive upon the 
other departments, it may be answered, that this cannot be 
the natural presumption, where it is not to be collected 
from any particular provisions in the constitution. It is 
not otherwise to be supposed that the constitution could. 
intend to enable the representatives of the people to sUbsti--
tute their will to that of their constituents. It is far 
more rational to suppose that the courts were designed to 
be an intermediate body between the people and the legisla-
ture, in order, among other things, to keep the latter 
within the limits assigned to their authority. The inter-
pretation of the laws is the proper and peculiar province 
of the courts.... 

Indeed, our Federal Constitution recognizes the inherent difference between 

representatives and judges by placing the federal judiciary in an entirely 

different category from that of other federal elective offices. It is noteworthy 

that articles 1 and 2, which establish Congress and the Presidency, are lengthy 

and detailed, while Article 3, which establishes the judiciary, is brief and free 

of direction, indicating the judiciary is to be free of any instructions. Today, 

Fifth Circuit jurisprudence continues to recognize the long established dis-

tinction between judges and other officials. See, e.g., Mbrial v. Judiciary  

4/ This language did not appear in section 2 at the time of the Wells opinion. 

0 017 (-.) 
-6- 10 



Committee of State of Louisiana, 565 F.2d 295 (5th dr. 1977) en band, cert. 

denied, 435 U.S. 1013, 98 S.Ct. 1887 (1978). (See also Footnote 1/, supra.) 

The legislative history of the Voting Rights Act Amendments does not address 

the issue of section 2 applying to the judiciary, 5/ indeed, most of the discus-

sion concerning the application of the Voting Rights Act refers to legislative 

offices. Nevertheless plaintiffs ignore the historical distinction between 

representative and judge and the lack of any discernible legislative history in 

their favor and argue that the Voting Rights Act is a broad and remedial measure 

which must be extended to cover judicial election systems. 6/ 

5/ The Chairman of the Senate Judiciary Committee's Subcommittee on the Consti-
tution, Senator Orrin Hatch, in voicing his strong opposition of the Legislative 
reversal of Bolden through the section 2 revisions, made a brief reference to 
section 2 applying to judicial elections: 

Every political subdivision in the United States would be 
liable to have its electoral practices and procedures 
evaluated by the proposed results test of section 2.. It' is - 
important to emphasize at the onset that for the purposes of 
Section 2, the term "political subdivision" encompasses all 
governmental units, including city and county councils, 
school boards, judicial districts, utility districts, as 
well as state legislatures. 

S. Rep. 97-417, 97 Cong. 2d Sess. 127, 151, reprinted in 1982 U.S. Code Cong. & 
Admin. News 298, 323. 

Although Senator Hatdh's comment indicates coverage of judicial districts by the 
Voting Rights Act, the purpose of the above passage was to illustrate Senator 
Hatdh's belief that the impact of the section 2 Amendments' "results test" would 
be far ranging and in his opinion, detrimental. Senator Hatdh's comments were 
included at the end of the Senate report usually reserved for dissenting Senators. 
The above passage did not portend to be a definative or even moderate detailed 
description of the coverage of the Voting Rights Act, nor 'does Senator Hatch 
provide any authority for his suggestion of the potential scope of section 2. 
Rather, this Court finds that the passage was meant to be argumentative and 
persuasive, and not as a means to define actual scope of the Act. 

6/ See e.g., United Jewish Organization of Williamsburg, Inc. v. Carey, 430 
U.S. 1.744, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977) ("It is apparent from the face of 
the Act, from its legislative history, and from our cases of the Act itself was 
broadly remedial in the sense that it 'was designed by Congress to banish the 
blight of racial discrimination in voting...'"), 130 U.S. at 156; South Carolina  
v. Katzenback, 383 U.S. 301, 86 S.Ct. 803 (1966) (The Voting Rights Act "reflects 
Congress' firm intention to rid the country of racial discrimination in voting"), 
383 U.S. at 315. 

11 



Plaintiffs rely principally on Haith v. Martin, 618 F. Supp. 410 (D.N.C. 1985) 

(three-judge court), aff'd, without opinion, 106 S.Ct. 3268, 93 L.Ed.2d 559 (1986) 

for the proposition that this Court should ignore Wells v. Edwards, supra, and 

apply section 2 to the allegations contained in their complaint. 7/ in Haith, 

the district court held that judicial election systems are covered by section 5 

of the Voting Rights Act, which requires preclearance by the U.S. Justice 

Department of any voting procedures changes in sareas with a history of voting 

discrimination. Plaintiffs, in essence, argue that because the Supreme Court, 

without opinion, affirmed the Haith district court in its application of section 

5 to• judicial elections, this Court should expand the holding of Haith to include 

section 2 of the Voting Rights Act. Plaintiffs' argument fails because section 5 

does not specifically restrict its application to election systems pertaining to 

representatives, a restriction included in the 1982 amendments to section 2. 

Although a potential conflict may. develop -between the holdings. in Wells and 

Haith, Wells clearly states section 2 is not applicable to judicial elections. 

Further, as stated earlier, Wells was decided prior to Congress adding the "repre-

sentative" restriction. This Court recognizes the long standing principle that 

the judiciary, on all levels, exists to interpret and apply the laws, that is, 

judge the applicability of laws in specific instances. Representatives of the 

people, an the other hand, write laws to encompass a wide range of situations. 

Therefore, decisions by representatives must occur in an environment which takes 

into account public opinion so that laws promulgated reflect the values of the 

represented society, as a whole. Judicial decisions which involve the individual 

or individuals must occur in an environment of impartiality so that courts render 

7/ Plaintiffs also rely on Kirksey v. Anian, Civ. Act. No. J85-0960(B), slip op. 
(S.D. MS. April 1, 1987), in which a district court dismissed the reasoning in 
Wells, and held section 2 does apply to the elected judiciary. Wells, supra, has 
precedential authority and clearly conflicts with Kirksey, an untested lower 
court opinion. 

-8-
12 



judgments which reflect the particular facts and circunstances of distinct 

cases, and not the sweeping and sometimPs undisciplined winds of public opinion. 

PLAINTIFFS' FOURTEENTH AND FIFTEENTH AMENDMENT CLAIMS FAIL TO STATE A CLAIM 
UPON WHICH RELIEF CAN BE GRANTED AS PLAINTIFFS DO NCT PLEAD DISCRIMINATORY INTENT  

The appropriate constitutional standard for establishing a violation of the 

fourteenth amendment in the context of voting rights is "purposeful discrimination." 

Village of Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 97 

S.Ct. 555, 50 L.Ed.2d 450 (1977); 8/ McMillian v. Escambia City, Fla, 688 F.2d 

960 (5th Cir. 1982). 9/ Similarly, City of Mobile, Alabama v. Bolden, supra, 

requires a court to establish a finding of discriminatory purpose before declaring 

a fifteenth amendment violation of voting rights. 10/ 

In Voter Information Project, 612 F.2d 208 (5th Cir. 1980), a panel composed 

of Judges Jones, Brawn and Rubin (opinion by Judge Brown) held a suit that alleged 

8/ In Village of Arlington Heights v.. Metropolitan Housing Corp., purposeful 
discrimination was held the standard necessary to establish a violation of the 
fourteenth amendment where plaintiff claimed a village rezoning decision was 
racially discriminatory. 

9/ In McMillian v. Escambia City, Fla., the Fifth Circuit held the Arlington  
Heights' "purposeful discrimination" standard is appropriate in fourteenth 
ameodment voter discrimination claims. 

10/ Although there is a conflict between the requirement of "discriminatory 
effect" in Section 2, which is intended to enforce the fifteenth amendment, and 
the requirement of "purposeful discrimination" for a fifteenth amendment violation 
standing alone, the Senate Judiciary Committee addressed this point and recognized 
Congress' limited ability to adjust the burden of proving Voting Rights Violations 
in its "Voting Rights Act Extension" Committee Report. 

Certainly, Congress cannot overturn a substantive inter-
pretation of the Constitution by the Supreme Court. Such 
rulings can only be altered under our form of government by 
constitutional amendment or by a subsequent decision by the 
Supreme Court. 

Thus Congress cannot alter the judicial interpretations 
in Bolden of the fourteenth and fifteenth amendments by 
simple statute. But the proposed amendment to Section 2 
does not seek to reverse the court's constitional inter-
pretation. 

(Continued on p. 10) 

13 



the at-large scheme for electing city judges in Baton Rouge invidiously diluted 

the voting strength of black persons in violation of the fourteenth and fifteenth 

amendments to the United States Federal Constitution, and 42 U.S.C. § 1983, could 

not be dismissed when the complaint alleges purposeful discrimination. At the 

trial level, Judge West relied on his reasoning in Wells, supra, that the one 

man, one vote principle did not apply to the elections of judges, and dismissed 

plaintiffs' suit. Judge Brawn reversed, holding that the "one man, one vote" 

principle as espoused in Wells, supra, was not enough to dismiss plaintiff's 

complaint. The Voter Information Court found: 

The problem with the District Court's opinion, however, 
is that it assumes the "one man, one vote" principle 
was the exclusive theory of plaintiff's complaints. In 
addition to a rather vaguely formulated "one man, one 
vote" theory, plaintiffs contend that both in design 
and operation, the at-large schemes dilute the voting 
strength of black citizens and prevent blacks from 
being elected as judges. As the complaint attacking 
the city judge election system alleges: 

25. The sole purpose of the present at-large 
system of election of City Judge is to 
insure that the white majority will continue 
to elect all white persons for the offices 
of City Judge. 

26. The present at-large system was insti-
tuted when "!Division B" was created as a 
reaction to increasing black voter regis-
tration and for the express purpose of 
diluting and minimizing the effect of the 
increased black vote. 

27. In BatonRame, there is a continuing 
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, irrespective 
of the relative qualifications. 

Fn. 10 Continued: 

S.Rep. 97-417, 97 Cong. 2d Sass. (1982), p. 41. 

The Supreme Court, the only body empowered to interpret the Federal Constitution, 
has not seen fit to overrule its repeated determination that the fourteenth and 
fifteenth mendments claims require "purposeful discrimination." 

0018Z, 
-10-



Plaintiffs contend that since most of the black popula-
tion of Baton Rouge and E. Baton Rouge Parish is concen-
trated in a few geographic areas, black citizens could, 
under a single member district plan, elect at least some 
black judges. 

612 F.2d at 211. 

The Voter Information Project Court held the plaintiff's complaint contained 

sufficient allegations of intentional discrimination against black voters to 

survive a motion to dismiss: "If plaintiffs can prove that the purpose and opera-

tive effect of such purpose of the at-large election schemes in Baton Rouge is to 

dilute the voting strength of black citizens, then they are entitled to some form 

of relief." 612 F.2d,at 212. Thus, the Voter Information Project requires that 

"purpose and operative effect" be pled in a fourteenth and fifteenth amendment 

challenge to a judicial apportionment plan. 

The complaint in the instant case states, in pertinent part:-

Beaause of the offical history of racial discrimination 
in Louisiana's First Supreme Court District, the 
wide spread prevalence of racially polarized voting 
in the district, the continuing effects of past dis-
crimination on the plaintiffs, the small percentage 
of minorities elected to public office in the 
area, the absence of any black elected to the 
Louisiana Supreme Court from the First District, and 
the lack of any justifiable reason to continue the 
practice of electing two Justices at-large from 
the New Orleans area only, plaintiffs contend that 
the current election 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. 

(See Plaintiffs' Complaint, p.5). Later on, the Complaint alleges: 

The defendants actions are in violation of the 
Fourteenth and Fifteenth Amendment to the United 
States Constitution and 42 U.S.C. § 1983 in that 
the purpose and effect of their actions is to 
dilute, minimize, and cancel the voting strength 
of the plaintiffs. 

(Id., p. 6.) 

00185 
15 

-11-



Although "purpose and effect" language in the second quotation above broadly read 

may imply plaintiffs' intention to plead discriminatory intent, it is this Court's 

considered opinion, based on the complaint as a whole, that plaintiffs intend to 

prove this claim based on a theory of "discriminatory effect" and not on a theory 

of "discriminatory intent." City of Mobile Alabama v. Bolden, supra. For example, 

plaintiffs' complaint does not allege the system by which the Louisiana Supreme 

Court Justices are elected was instituted with specific intent to discriminate. 

This contrasts with the specific allegations in Voter Information Project, supra. 

Accordingly, plaintiffs lack the requisite allegations in order to prove a 

violation of the fourteenth or fifteenth amendment to the Federal Constitution. 

The Court reserves the right for plaintiffs to reurge its fourteenth and 

fifteenth amendment claims as they relate to the Court's ruling that plaintiffs' 

complaint only alleges "discriminatory effect." 

Accordingly, unless plaintiffs' complaint is amended within ten (10) days of 

the date of entry of this opinion, the Clerk of Court is directed to enter judg-

ment DISMISSING plaintiffs' claim at their cost. 

New Orleans, Louisiana, this 

16 
-12-



S. • 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA 

RONALD CHISOM, MARIE BOOKMAN, 
WALTER WILLARD, MARC MORIAL, 
LOUISIANA VOTER REGISTRATION/ 
EDUCATION CRUSADE, AND HENRY A. 
DILLON, III 
Plaintiffs 

VERSUS 

EDWIN EDWARDS, in his capacity 
as Governor of the State of 
Louisiana; JAMES H. BROWN, in his 
capacity as Secretary of the State 
of Louisiana; and JERRY M. FOWLER, 
in his capacity as Commissioner of 
Elections of the State of Louisiana 
Defendants 

CIVIL ACTION 

NUMBER 86-4075 

SECTION A 

MAGISTRATE 6 

CLASS ACTION 

THREE JUDGE COURT 

AMENDED COMPLAINT 

I. PRELIMINARY STATEMENT, 

This action is. brought by the plaintiffs on behalf of all 

black registered- voters in Orleans parish to challenge the 

election of Justices to the Louisiana Supreme Court from the New 

Orleans area. Plaintiffs contend that the present system of 

electing judges, whereby the parish of Orleans, St. Bernard, 

Plaquemines, and Jefferson elect two Justices to the Louisiana 

Supreme Court at-large, is a violation of the 1965 Voting Rights 

Act, as amended, 42 U.S.C. Section 1973 because it dilutes the 

voting strength of plaintiffs. 

II. JURISDICTION 

This is an action for declaratory and injunctive relief 

brought pursuant to 42 U.S.C. Section 1973 and 42 U.S.C. Section 

1983. This Court has jurisdiction pursuant to 28 U.S.C. Section 

--FEE 
1331 and Section 1343 as well as 42 U.S.C. Section 



Plaintiffs also seek declaratory and other appropriate 

relief pursuant to 28 U.S.C. Sections 2201 and 2202. 

Plaintiffs' claims under the Voting Rights Act and under the 

Fourteenth and Fifteenth Amendments to the U.S. Constitution must 

be determined by a district court of three judges pursuant to 28 

U.S.C. Sect. 2284 (a). 

III. PARTIES 

The individual plaintiff are all black registered voters in 

Orleans parish. The organizational plaintiff is a non-profit 

corporation comprised of Orleans Parish black registered voters 

active in voting rights issues. The plaintiffs sue on behalf of 

themselves and all other black registered voters in Orleans 

parish. 

Edwin Edwards is Governor of the State of Louisiana. He is 

sued in his official capacity as Governor. Mr. Edwards has the 

duty to support the Constitution and laws of the State of 

Louisiana and of the United States and to see that these laws are 

faithfully executed. 

James H. Browns is Secretary of the State of Louisiana. 

is sued in that official capacity. As Secretary of State, Mr. 

Brown has the duty to prepare and certify the ballots for all 

elections, promulgate all election returns and administer the 

election laws of Louisiana. 

Jerry M. Fowler is Commissioner of Elections of the State of 

Louisiana. He is sued in that official capacity. As 

Commissioner of Elections, he has the duty to work closely with 

2 
18 



the office of the Secretary of State to prepare and certify the 

ballots for all elections held in Louisiana. 

IV. CLASS ACTION ALLEGATIONS 

This matter is brought as a class action pursuant to Rule 

23(b)(2) of the Federal Rules of Civil Procedure, on behalf of 

all black persons who are residents and registered voters of 

Orleans parish, State of Louisiana. 

The number of persoris who would be included in the above-

defined class would be approximately 135,000. 

Plaintiffs are adequate representatives of the class in that 

they are similarly situated with the rest of the members of the 

class. There are no actual or potential conflicts of interest 

and the attorneys for plaintiffs are competent and-able to handle 

the litigation. 

The questions of law and fact common to the class are those 

implicit in this complaint including whether the defendants 

should be ordered to comply with the Voting Rights Act in the 

election of Justices to the Louisiana Supreme Court from the New 

Orleans area. 

V. FACTS 

The State of Louisiana elects seven Justices to the 

Louisiana Supreme Court. 

The method of electing Justices to the Louisiana Supreme 

Court is set out at Louisiana Revised Statute 13:101. This 

statute orders' that the state be divided into six Supreme Court 

districts which elect seven Justices. Each of the Supreme Court 

OOL 
3 



I 

districts elects one Justice, except for the First Supreme Court 

district which elects two Justices at-large. 

The First Supreme Court district is made up of the parishes 

of Orleans, St. Bernard, Plaquemines, and Jefferson, from which 

two Justices are elected at-large. 

The First District is the only Supreme Court district in 

Louisiana that is not a single member district. 

The First Supreme Court District of Louisiana contains 

approximately 1,102,253 residents of which 63.36% or 698,418 are 

white and 379,101 or 34.4% are black. The voter registration 

data for the First Supreme Court District of Louisiana indicates 

a total registered voter population of 515,103. Of this total, 

350,213 or 68% are white and 162 810 or 31.61% are black. 

If . the First Supreme Court District of Louisiana were 

divided into two single member districts, the average population 

would be approximately 551,126 persons in each district. Because 

Orleans parish's present population is 555,515, the most logical 

division of the district into two single member districts would 

have Orleans parish electing one Supreme Court Justice and the 

parishes of Jefferson, St. Bernard, and Plaquemines together 

electing the other Supreme Court Justice. 

If the present First Supreme Court District was divided as 

indicated in the preceding paragraph, the Orleans parish district 

would have a black population and voter registration majority. 

The Orleans parish district would have 236,987 white residents or 

42.5% and 308,149 black residents or 55.3%. The voter 

CP 
4 20 



registration figures indicate that the district would have 

124,881 white voters or 47.9% and 134,492 black voters or 51.6%. 

The Supreme Court district which would be comprised of 

Jefferson, Plaquemines, and St. Bernard would have a total 

population of 544,738 of which 461,431 or 84.7% would be white 

and 70,952 black residents or 13.0%. The voter registration data 

indicates that 225,332 registered voters are white or 88.5% while 

28,318 black voters are also registered or 11.1% 

Because of the official history of racial discrimination in 

Louisiana's First Supreme 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 Supreme 

Court from the First District, and the lack of any justifiable 

reason to continue the practice of electing two Justices at-large 

from the New Orleans area only, plaintiffs contend that the 

current election 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. 

VI. CAUSES OF ACTION 

The defendants are in violation of Section 2 of the 1965 

Voting Rights Act, as amended, 42 USC Section 1973 because the 

present method of electing two Justices to the Louisiana Supreme 

Court at-large from the New Orleans area impermissibly dilutes 

minority voting strength. 

5 



The defendant's actions are in violation of the Fourteenth 

and Fifteenth Amendments to the United States Constitution and 42 

USC Section 1983 in that the purpose and effect of their actions 

is to dilute, minimize, and cancel the voting strength of 

plaintiffs. 

VII. EQUITY 

This action is an actual controversy between parties having 

adverse legal interests of such immediacy and reality as to 

warrant a declaratory judgment. 

Plaintiffs have no adequate remedy at law and will suffer 

irreparable injury unless injunctive relief is issued. 

VIII. PRAYER 

WHEREFORE, plaintiffs pray for relief as follows: 

1. That a District Court of three judges be convened 

pursuant to 28 U.S.C. Sect. 2284 and 42 U.S.C. Sect. 1973 to 

adjudicate this matter; 

2. That this matter be certified as a class action; 

3. That a preliminary and permanent injunction issue 

against the defendants as follows: 

a. Restraining defendants from allowing any 

further elections of Justices from the First Supreme Court 

District in accordance with Louisiana Revised Statute 13:101 Sub-

section 1 until this court makes a decision on the merits of 

plaintiff's challenge; 

6 2" 



it 

b. Ordering the defendants to reapportion the 

First Louisiana Supreme .Court District in a way that fairly 

recognizes the voting strength of minorities in the New Orleans 

area and completely remedies the present dilution of minority , 

voting strength. 

c. Ordering the defendants to comply •with the 

1965 Voting Rights Act, as amended, 42 USC Section 1973; 

4. That this court declare and determine that the 

present system of electing two Justices at-large from the 

parishes of Orleans, St. Bernard, Plaquemines, and Jefferson 

pursuant to Louisiana Revised Statute 13:101 Sub-section 1 

impermissibly dilutes minority voting strength and violates the 

1965 Voting Rights Act, as amended, and also violates the 

Fourteenth and Fifthteenth Amendments to the United States 

constitution. 

5. That attorney fees be awarded to plaintiff; 

6. That there be other such relief as may be necessary 

and proper. 

Respectfully submitted, 

P.iQuigle 
631 St_Ctiarles ANA'e..1.) 
_*w Orleans, LA 70130 
(504) 524-0016 

Ron Wilson 
Richards Building 
Suite 310 
837 Gravier St. 
New Orleans, LA 70112 
(504) 525-4361 2 

7