Ltr. to David Lipman from L. Guinier

    IN THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

No. 87-3463 

RONALD • CHISOM, ET AL 

Plaintiffs-Appellants, 

versus 

EDWIN EDWARDS, ET AL 

Defendants-Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF LOUISIANA 

DEFENDANTS-APPELLEES' PETITION FOR PANEL REHEARING 

WILLIAM J. GUSTE, JR. 
ATTORNEY GENERAL 

Louisiana Department of Justice 
234 Loyola Avenue, 7th Floor 
New Orleans, Louisiana 70112 

(504) 568-5575 

M. TRUMAN WOODWARD, JR. 
209 Poydras Street 
New Orleans, LA 70130 

BLAKE G. ARATA 
201 St. Charles Avenue 
New Orleans, LA 70130 

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

MOISE W. DENNERY 
601 Poydras Street 
New Orleans, LA 70130 

ROBERT G. PUGH 
330 Marshall Street, Suite 1200 

Shreveport, LA 71101 
(318) 227-2270 

SPECIAL ASSISTANT ATTORNEYS GENERAL 

April 13th, 1988 



IN THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

No. 87-3463 

RONALD CHISOM, ET AL 

Plaintiffs-Appellants, 

versus 

EDWIN EDWARDS, ET AL 

Defendants-Appellees, 

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF LOUISIANA 

DEFENDANTS-APPELLEES' PETITION FOR PANEL REHEARING 

WILLIAM J. GUSTE, JR. 
ATTORNEY GENERAL 

Louisiana Department of 
234 Loyola Avenue, 7th 
New Orleans, Louisiana 

(504) 568-5575 

M. TRUMAN WOODWARD, JR. 
209 Poydras Street 
New Orleans, LA 70130 

BLAKE G. ARATA 
201 St. Charles Avenue 
New Orleans, LA 70130 

Justice 
Floor 
70112 

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

MOISE W. DENNERY 
601 Poydras Street 
New Orleans, LA 70130 

ROBERT G. PUGH 
330 Marshall Street, Suite 1200 

Shreveport, LA 71101 
(318) 227-2270 

SPECIAL ASSISTANT ATTORNEYS GENERAL 



IN THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

No. 87-3463 

RONALD CHISOM, ET AL 

Plaintiffs-Appellants, 

versus 

EDWIN EDWARDS, ET AL 

Defendants-Appellees, 

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF LOUISIANA 

DEFENDANTS-APPELLEES' PETITION FOR PANEL REHEARING 

Appellees, respectfully petition this 

Honorable Court for a rehearing of the appeal in the 

above-entitled cause, and in support of this petition 

represent to this Court as follows: 



2 

The Panel's Opinion Is So OverBroad  
That It Reaches Issues Not Properly Before It  

And Implies A Result The Court May Not Have Intended  

The essence of the Panel's opinion is found 

at Page 2306 of the slip opinion: 

"We conclude today that section 2, as amended 
in 1982, provides protection commensurate 
with the fourteenth and fifteenth amendments; 
therefore, in accordance with this Court's 
decision in Voter Information, section 2 
necessarily embraces judicial elections 
within its scope. Any other construction of 
section 2 would be wholly inconsistent with 
the plain language of the Act and the express 
purpose which Congress sought to attain in 
amending section 2; that is, to expand the 
protection of the Act." 

Having concluded that Section 2 from its 

inception in 1964 was co-extensive with Constitutional 

protections, the Panel need not have gone further, for 

the case involved purely a motion to dismiss. 

Unfortunately, Sections B through D of the Panel's 

opinion continues in °biter dicta to analyze the 1982 

legislative history. While the Panel determined that 

the 1982 legislative history showed no intent to limit 

the original scope of Section 2, the Panel's broad 

statements contain terminology that is unnecessary at 

this point in the proceeding and which may cause lower 

courts to make evidentiary rulings on issues that have 



3 

yet to be addressed by this Court on a record developed 

after a full and complete trial. 

As the Panel was aware, there are two cases 

in district courts involving Section 2 and judicial 

elections, cases that undoubtedly will be appealed to 

the Court: Martin v. Allain, 658 F.Supp. 1183 (S.D. 

Miss. 1987); and Clark v. Edwards, Civil Action No. 

86:b-435-A (D.C. M.D. La.). Martin involves the county, 

chancery, and circuit courts in Mississippi, and a full 

trial has been held, although a final order apparently 

has not yet been issued. Clark involves a 

class-action, state-wide challenge to the method by 

which Louisiana district court and court of appeal 

judges are selected in multi-member districts; trial 

is set for July 12, 1988. 

It was clear that the Panel had to address 

whether the word "representative" in Section 2(b) of 

the Act was a limitation on the entire Act's 1/ 

applicability to judicial elections, for that was one 

of the points relied upon by the State in opposition to 

the plaintiffs' appeal; however, having determined 

1/ 
Both of Section 2(a) and 2(b). 



4 

that Section 2 as it existed prior to 1982 covered 

judicial elections, and having found no Congressional 

intent in 1982 to limit the scope of the Act, there was 

no need for the court to indicate that the term 

"representative" is a synonym for "candidate." 21 

2/ 
It may be that, with the full record before it in 

both Martin and Chisom, this or another Panel may reach 
the same conclusion. It is also possible, however, 
that an entirely different conclusion could be reached, 
one that treats the 1982 amendments as an expansion of 
the Act while at the same time recognizing that 
different words used in the same statute are to be 
accorded different meanings. As was noted in Bhandari  
v. First National Bank of Commerce, 829 F.2d 1343 at 
1345 (5th Cir. 1987), writs applied for (87-1293, filed 
February 2nd, 1988, 56 LW 3542), a case in which the 
Court rejected the finding of Congressional intent in 
Guerra v. Manchester Termination Corp., 498 F.2d 641 
(5th Cir. 1974): 

"It has been said that there is no greater 
injustice than to treat unequal things equally, 
and we are not disposed to do so... .unless the 
Congress has clearly demanded it  (Emphasis 
supplied). 

In a case properly before it, this Court may 
well hold that Congress indeed meant something 
different when it used the word "representative" rather 
than "candidate," in light of the sparse legislative 
history of the meaning of the term "representative," 
and in light of the differences in terminology between 
different sections of the Act (the term "candidate" 
appears elsewhere in Section 11 and Section 14). This 
would allow words to be accorded "their natural 
meaning" in a context where words have an 
"ascertainable meaning." 829 F.2d at 1349, 1350. 

(Footnote Continued) 



5 

For example, if a trial were to be held in 

3/ 
Clark, — would the dicta in Chisom be taken by the 

trial court as an imprimatur to apply the same 

evidentiary standards as in legislative elections? If 

"representative" and "candidate" mean the same thing, 

is the same "results test" applicable to legislative 

and judicial elections? These are not a mere 

rhetorical questions, for the plaintiffs in Clark have 

already filed objections to •proposed evidence and 

exhibits in reliance on statements in Citizens for a 

Better Gretna v. City of Gretna, 834 F.2d 496 (5th Cir. 

Therefore, the Court may well conclude, on 
the basis of a complete record, rather than one based 
on the perfunctory record that results from a Motion to 
Dismiss, that Congress intended to expand the holding 
of White V. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 
L.Ed.2d- 314 (1973), a case that involved only 
legislative positions. By using the term 
"representative," the Court may find that Section 2(b) 
now extends to the executive as well as legislative 
branch of government, but that the "results test" which 
was added cannot be used in judicial elections. 

Whether this is the conclusion that will be 
reached by this or another panel remains to be seen. 
What should be clear, however, is that the discussion 
in which this Panel engaged about the identity of the 
words "representative" and "candidate" was not 
necessary. 

3/ 
Settlement discussions in Clark are ongoing, as a 

result of which the original trial date of April 12, 
1988 has been moved to July 12, 1988. 



6 

1987), [both a petition for a panel rehearing, and 

suggestion for rehearing en banc were filed on January 

6th, 1988. These are pending, see Fifth Circuit 

Reporter April, 1988 Vol 5, No. 6 p.429], a case 

involving legislative elections. 5/ 

The "results test" under Section 2(b) is not 

a static, hard, and unyielding construct but is rather 

5/ 
a fluid and flexible analysis. — Inflexible data 

y Cited, Campos v. City of Baytown, Texas, 87-2359, 
April 1, 1988, Slip Opinion 2547, 2553. 

5/ The Supreme Court's opinion. in Gingles, in the 
majority portion of the opinion, specifically relies 
upon the Senate Report which accompanied the 1982 
amendments concerning the requirements to prove a 
Section 2 violation. Gingles, 106 S.Ct. at 2763, 
Footnote 7. The Senate Report No. 97-417 at 28, 29, 
U.S. Code Congressional Administrative News, 1982 pp. 
206-207; quoted at 106 S.Ct 2759, 2760: 

"1. the extent of any history of official 
discrimination in the state or political 
subdivision that touched the right of the 
members of the minority group to register, to 
vote, or otherwise to participate in the 
democratic process; 

2. the extent to which voting in the 
elections of the state or political 
subdivision is racially polarized; 

3. the extent to which the state or 
political subdivision has used unusually 
large election districts, majority vote 
requirements, anti-single shot provisions, or 
other voting practices or procedures that may 
enhance the opportunity for discrimination 
against the minority group; 

(Footnote Continued) 



7 

from this Court, however may convert the "results test" 

in judicial elections to a Procrustean bed. Judges, 

unlike all members of the legislative branch, and 

unlike all but elected district attorneys in the 

4. if there is a candidate slating process, 
whether the members of the minority group 
have been denied access to that process; 

5. the extent to which members of the 
minority group in the state or political 
subdivision bear the effects of 
discrimination in such areas as education, 
employment and health, which hinder their 
ability to participate effectively in the 
political process; 

6. whether political campaigns have been 
characterized by overt or subtle racial 
appeals; 

7. the extent to which members of the 
minority group have been elected to public 
office in the jurisdiction. 

Additional factors that in some cases have 
had probative value as part of plaintiffs' 
evidence to establish a violation are: 

whether there is a significant lack of 
responsiveness on the part of elected 
officials to the particularized needs of the 
members of the minority group. 

whether the policy underlying the state 
or political subdivision's use of such voting 
qualification, prerequisite to voting, or 
standard, practice or procedure is tenuous. 

As the Supreme Court noted, the Senate 
Report's list of factors is "neither comprehensive 
nor exclusive. While the enumerated factors will 
often be pertinent to certain types of Section 2 
violations, particularly to vote dilution claims, 
other factors may also be relevant and may be 
considered." 106 S.Ct. at 2764. 



8 

executive branch, must meet special qualifications. 

Unlike any other elected official, judges must be 

attorneys, must have practiced law for a minimum of 

five years, and must not have been previously appointed 

to the position for which they are campaigning. 

For the Panel to reject as "untenable" (slip 

opinion at Page 2307) any distinction between judicial 

and non-judicial officials prior to the creation of a 

full record is premature. For the Panel to equate 

statutes passed with an intent to discriminate with 

statutes that may or may not pass the "results test" is 

provocative but unnecessary. 21 

6/ 
Louisiana Constitution Article V, Sections 22 and 

24. 

7/ 
The whole purpose of Section 2(b) was to overrule 

the intentional discrimination test required in Mobile  
v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 
(1980). What is now Section 2(a) was essentially old 
Section 2 of the Act; it was the addition of Section 
2(b) that added the criteria for the "results test," a 
test expressly applicable only to election of 
"representatives." Therefore, it is submitted that the 
following statement by the Panel shows that it was 
perhaps inadvertently intermingling the "results test" 
of Section 2(b) with intentional discrimination, a 
practice that the Panel (and Mobile as well as Voter  
Information) found always had been covered by both the 
Constitution and old Section 2: 

"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 

(Footnote Continued) 



9 

In essence, the sole issue before the 

district court was whether to grant a motion to 

dismiss. The Court can hold that Section 2 (as it 

existed prior to 1982) applies to judicial elections. 

Thus, the district court's opinion will be reversed and 

the case remanded. Since there was no evidence on 

whether the "results test" applies, since no 

statistical evidence was offered whatsoever before the 

district court, and since that issue was not before the 

Court, the Panel was overbroad in its statements. The 

Panel can hold that Section 2 has always applied to the 

judiciary and leave the question of the "results test" 

to another day, after a factual development of the 

issue in the district court. It is hornbook law that a 

court should decide a case on as narrow a ground as 

1988, if that statute were in effect prior to 
1982, minorities could only challenge the 
statute under the Constitution and not under 
the Voting Rights Act. Such a result would 
be totally inconsistent with the broad 
remedial purposes of the Act. 

The issue should not have been whether such an 
"egregious statute" would violate Section 2, but rather 
whether a judicial election statute enacted with no 
discriminatory intent could be attached under the 
"results test" of Section 2(b). This overstatement by 
the Panel shows the necessity of tempering the breadth 
of the opinion pending the development of a full 
record. 



- 10 - 

possible and should not give a broad opinion unless 

absolutely necessary. It is not necessary to reach the 

"results test" in this case 

any attempt to be expansive 

For the foregoing reasons, 

rehearing should be granted. 

Dated: April 13th, 1988 

WILLIAM J. GUSTE, JR. 
ATTORNEY GENERAL 

Louisiana Department of 
234 Loyola Avenue, 7th 
New Orleans, Louisiana 

(504) 

M. TRUMAN WOODWARD, JR. 
209 Poydras Street 
New Orleans, LA 70130 
(504) 581-3333 

BLAKE G. ARATA 
201 St. Charles Avenue 
New Orleans, LA 70130 
(504) 582-1111 

By: 

568-5575 

and the panel 

in its dicta. 

should abjure 

this petition for 

Justice 
Floor 
70112 

A. R. CHRISTOVICH 
1900 American Bank Bldg. 
New Orleans, LA 70130 
(504) 561-5700 

MOISE W. DENNERY 
601 Poydras Street 
New Orleans, LA 70130 
(504) 586-1241 

G. PUGH 
Lead Counsel 

330 Marshall Street, Suite 1200 
Shreveport, LA 71101 

(318) 227-2270 

SPECIAL ASSISTANT ATTORNEYS GENERAL 



CERTIFICATE  

I HEREBY CERTIFY that a copy of the above and 

foregoing Petition for Panel Rehearing has this day 

been served upon the plaintiffs through their counsel 

of record: 

William P. Quigley, Esquire 
631 St. Charles Avenue 
New Orleans, Louisiana 70130 

Julius L. Chambers, Esquire 
Chalres Stephen Ralston, Esquire 
C. Lani Guinier, Esquire 
Ms. Pamela S. Karlan 
99 Hudson Street 
16th Floor 
New York, New York 10013 

Roy Rodney, Esquire 
643 Camp Street 
New Orleans, Louisiana 70130 

Ron Wilson, Esquire 
Richards Building, Suite 310 
837 Gravier Street 
New Orleans, Louisiana 70112 

by depositing the same in the United States Mail, 

postage prepaid, properly addressed. 

All parties required to be served have been 

served. 

Shreveport, Caddo Parish, Louisiana, this the 

13th day of April, 1988. 

rt G. Pugh, 
Lead Counsel