Brief on Behalf of Defendants-Appellees; Correspondence from Turner to Ganucheau

    UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

No. 89-3654 

RONALD CHISOM, et al., 

Plaintiffs-Appellants 

and 

UNITED STATES OF AMERICA, 

Plaintiff-Appellant 

versus 

BUDDY ROEMER, et al., 

Defendants-Appellees 

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

BRIEF ON BEHALF OF DEFENDANTS-APPELLEES 

ROBERT G. PUGH 
Counsel of Record 

ROBERT G. PUGH, JR. 
Suite 2100 Commercial National Tower' 

333 Texas Street 
Shreveport, LA 71101-5302 

(318) 227-2270 

M. TRUMAN WOODWARD, JR. 
909 Poydras Street 
Suite 2300 
New Orleans, LA 70130 

A. R. CHRISTOVICH 
2300 Pan American Life Center 
601 Poydras Street 
New Orleans, LA 70130 

MOISE W. DENNERY 
601 Poydras Street 

New Orleans, LA 70130 

SPECIAL ASSISTANT ATTORNEYS GENERAL 



CERTIFICATE OF INTERESTED PERSONS  

The undersigned counsel certifies that the 

following listed persons have an interest in the 

outcome of this case. These representations are made 

in order that the Judges of this Court may evaluate 

possible disqualification or recusal. 

1. The Non-Governmental Plaintiffs: 

Ronald Chisom 
Marie Bookman 
Walter Willard 
Marc Morial 
Henry Dillon, III 
Louisiana Voter Registration/Education 

Crusade, a non-profit corporation 
A Class consisting of all black registered 

voters in Orleans Parish [generic 
description] 

2. Counsel for the Non-Governmental Plaintiffs: 

Julius L. Chambers) 
Judith Reed 
Sherrilyn A. Ifill) 

NAACP Legal Defense 
& Educational Fund 

Pamela S. Karlan 
C. Lani McGuinier 
William P. Quigley 
Ronald L. Wilson 
Roy Rodney, of the law firm of McGlinchey 

Stafford, Mintz, Cellini & Lang 



ij • 

3. The Governmental Plaintiff: 

United States of America 

4. Counsel for the Governmental Plaintiff: 

James P. Turner 
Jessica Dunsay Siller 
Irving Gunnstein 
John Voltz 
[Gerald W. Jones 
Steven H. Rosenbaum 
Robert S. Berman] 

5. The Defendants: 

Charles Roemer, [Edwin W. Edwards] 
Governor of the State of Louisiana 

W. Fox McKeithen, [James H. Brown] 
Louisiana Secretary of State 

Jerry M. Fowler, Commissioner of Elections 
of the State of Louisiana 

6. Counsel for the Defendants: 

Robert G. Pugh, of the law firm of 
Pugh and Pugh 

Robert G. Pugh, Jr., of the law firm of 
Pugh and Pugh 

Moise W. Dennery, of the law firm of 
Lemle, Kelleher, Kohlmeyer, Dennery 
Hunley & Frilot 

M. Truman Woodward, Jr., of the law firm 
of Milling, Benson, Woodward, Hillyer, 
Pierson & Miller 

A. R. Christovich, of the law firm of 
Christovich & Kearney. 

[Blake G. Arata, of the law firm of 
Gordon, Arata, McCollam & Duplantis] 

[Kendall Vick] 



• 

• 7. A Defendant-Intervenor: 

Honorable Pascal F. Calogero, Jr. 

8. Counsel for Defendant-Intervenor: 

George M. Strickler, Jr., of the law firm 
of LeBlanc, Strickler, Woolhandler 

Moon Landrieu 

9. A Defendant-Intervenor: 

Honorable Walter F. Marcus, Jr. 

10. Counsel for Defendant-Intervenor: 

Peter J. Butler, of the law firm of 
Sessions, Fishman, Boisfontaine, 
Nathan, Winn, Butler, Barkley 

11. The Amicus Curiae: 

Lawyers' Committee for Civil Rights 
Under Law 

12. Counsel for Amicus Curiae: 

David S. Tatel 
Robert F. Mullen 
Norman Redlich 
Barbara R. Arnwine 
Frank R. Parker 
Brenda Wright 
Robert B. McDuff 

13. The Amicus Curiae: 

Supreme Court Justice for Orleans, Inc. 

14. Counsel for Amicus Curiae: 

Darleen M. Jacobs 



• 

- iv - 

15. Attorney General of the State 
of Louisiana 

William H. Guste, Jr. 
Kenneth DeJean 

Coun f Record, Defendants-Appellees 

March 1st, 1990 



- v - 

STATEMENT REGARDING ORAL ARGUMENT 

Defendants-Appellees believe that Oral 

Argument would be helpful to the Court in its 

assessment of this matter which is of extreme 

importance to Louisiana and its peoples, touching as it 

does the very foundation of Louisiana's Third Branch of 

Government - the Judiciary. 



- vi - 

TABLE OF CONTENTS AND CITATIONS  

TABLE OF CONTENTS  
Page  

CERTIFICATE OF INTERESTED PARTIES . • .. 00 i 

STATEMENT REGARDING ORAL ARGUMENT . • .. .. v 

TABLE OF CONTENTS AND CITATIONS •. • • •. vi 

STATEMENT OF JURISDICTION 00 00 00 00 1 

STATEMENT OF THE ISSUE PRESENTED 00 00 00 1 

STATEMENT OF THE CASE 00 00 00 00 00 2 

I. Course of Proceedings and 
Disposition in Court Below 00 00 2 

II. Statement of Facts 00 00 00 00 4 

A. The Louisiana Supreme Court 
and its Districts 00 00 00 4 

SUMMARY OF THE ARGUMENT • 00 00 00 00 8 

ARGUMENT . • 00 00 00 00 00 00 00 11 

I. THE "CLEARLY ERRONEOUS" STANDARD 00 11 

SECTION TWO OF THE VOTING RIGHTS 
ACTS AND THE SUPREME COURT'S 
DECISION IN THORNBURG V. GINGLES 00 12 

III. THE PLAINTIFFS HAVE NOT MET THEIR 
BURDEN UNDER THORNBURG V. GINGLES • 15 

A. The trial court was not 
"clearly erroneous" in 
concluding that the plaintiffs 
did not demonstrate that "the 



minority group . . . is 
sufficiently large and 
geographically compact to 
constitute a majority in 
single-member district." 

a 
• • 

B. The trial court was not 
"clearly erronous" in 
concluding that the plaintiffs 
did not prove sufficient 
black cohesion and that the 
plaintiffs did not prove that 
white bloc voting prevents 
election of the minority's 
candidates of choice. • • 

• • 15 

22 

1. Uniqueness of the 
Judiciary and Judiciary 
Elections .. 23 

2. First Supreme Court 
District Elections 28 

3. Other Judicial Elections 
Within the First Supreme 
Court District .. • • 31 

4. Exogenous Elections 
Within the First Supreme 
Court District .. • • • 40 

C. The trial court correctly 
examined the other Senate 
Report factors 41 

CONCLUSION 47 

CERTIFICATE 



CITATIONS  

Cases: . Page  

Anderson v. City of Bessemer City, N.C., 
470 U.S. 564 (1985) .. .. .. .. .. 11, 12 

Brewer v. Ham, 
876 F.2d 448 (5th Cir. 1989) . • .. .. 11 

Brown v. Thomson, 
462 U.S. 835 (1983) .. 15 

Campos v. City of Baytown, Texas, 
840 F.2d 1240 (5th Cir. 1988) .. 11 

Chapman v. Meier, 
420 U.S. 1 (1975) • .. 18 

Chisom v. Edwards, 
839 F.2d 1056 (5th Cir.), cert. 
denied, U.S. , 102 L.E.2d 379, 
109 S.Ct. 390 (1988) 3 

Chisom V. Edwards, 
690 F. Supp. 1524 (E.D. La. 1988) . • .. 3 

Chisom V. Roemer, 
853 F.2d 1186 (5th Cir. 1988), 
rehearing and rehearing en banc denied 3 

Connor v. Finch, 
431 U.S. 407 (1977) .. 18 

David v. Garrison, 
553 F.2d 923 (5th Cir. 1977) . 36 

Graves v. Barnes, 
446 F. Supp. 560 (W.D. Tex. 1977 
(three judge court)), affirmed, 
435 U.S. 901 (1978) .. 18 



Cases (Continued): Page  

Hadley v. Junior College District, 
397 U.S. 50 (1970) . • 00 00 00 18 

Houston v. Haley, 
859 F.2d 341 (5th Cir. 1988), 
vacated on other grounds, 
869 F.2d 807 (5th Cir. 1989) 00 0. 00 44 

Long v. Gremillion, 
Civ. Suit 142,389, Ninth Judicial 
District Court for Rapides Parish, 
Louisiana (October 14, 1986) .. 00 00 42 

Marshall v. Edwards, 
582 F.2d 927 (5th Cir. 1978) 
cert. denied, 442 U.S. 909 (1979) 00 00 21 

McNeil v. Springfield Park District, 
851 F.2d 937 (7th Cir. 1988), 
cert. denied, U.S. , 
104 L.E.2d 204 (1989) 00 00 00 00 42 

Mobile v. Bolden, 
446 U.S. 55 (1980) 00 19 

Monroe v. City of Woodville, 
881 F.2d 1327 (5th Cir. 1989) 00 00 11, 35 

Overton v. City of Austin, 
871 F.2d 529 (5th Cir. 1989) 00 00 11 

Reynolds v. Sims, 
377 U.S. 533 (1964) .. .. .. 00 18 

Thornburg v. Gingles, 
478 U.S. 30 (1986) .. 00 00 SO Passim 

United States v. United States Gypsum Co., 
333 U.S. 364 (1948) .. 00 00 00 11 

•• 

•• 

Washington v. Tensas Parish School Board, 
819 F.2d 609 (5th Cir. 1987) .. 00 21 

Wells v. Edwards, 
347 F. Supp. 453 (M.D. La. 1972), 
affirmed without opinion, 
409 U.S. 1095 (1973) 00 .0 00 00 18 



I 

- x - 

Cases (Continued): Page  

Westwego Citizens for Better  
Government v. Westwego, 

872 F.2d 1201 (5th Cir. 1989) 35 

Constitutional, Statutory and Rule  
Provisions: 

United States Constitution: 

Fourteenth and Fifteenth Amendments.. 

United States Statutes: 

• • 4 

28 U.S.C. § 1291 .. .. .. .. .. 1 
42 U.S.C. .5 1973 .. .. .. . • Passim 
42 U.S.C. § 1983 .. .. .. .. •. Passim 

Rules: 

Fed.R.Civ.P. 12(b)(6) 

Louisiana Constitution: 

• • • • • • • • 2 

1879 Constitution, Article 82 .. .. .. 5 
1898 Constitution, Article 87 .. .. .. 5 
1913 Constitution, Article 87 .. • • .. 5 
1921 Constitution, Article 2, § 9 .. .. 5 
1974 Constitution, Article 5, § 4 .. 5, 7, 47 

Newspapers: 

Baton Rouge State-Times, 
October 9th, 1989 7 

New Orleans Times-Picayune, 
October 8th, 1989 7 



• 

References in Brief to the Trial 
Court's Opinion, the Trial Transcript, 
Uncontested Material Facts, Record, 
Plaintiffs' Exhibits, Intervenor's 
Exhibits and Defendants' Exhibits: 

Opinion: 

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Trial Transcript Page  

Page 3 .. .. .. .. .. .. .. 38 
Page 7 . • .. 00 00 00 00 00 00 44 
Page 28 .. .. .. .. .. .. .. .. 44 
Page 30 • . .. .. .. .. .. .. .. 32 
Page 48 .. .. .. .. .. .. .. .. 32 
Pages 50-51 .. .. .. .. .. .. .. 4 
Pages 51-52 .. .. .. .. .. .. .. 4 
Page 84 .. .. .. .. .. .. .. .. 33 o 
Pages 91-97 .. .. .. .. .. .. .. 36 
Pages 91-92 .. .. .. .. .. .. .. 39 
Page 109 .. .. .. .. .. .. .. 33 
Page 132 . • .. .. .. .. .. .. .. 50 
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Page 156 .. .. .. .. .. .. .. .. 36 
Page 159 .. .. .. .. .. .. ,. .. 36 
Page 199 . . .. .. .. .. .. .. .. 37 
Page 209 . . .. .. .. .. .. .. .. 37 

Record 

Page 173 .. 3 
Page 1136 .. • .. 4 

Uncontested Material Facts  

R.E. 32 .. .. .. .. .. .. .. .. 6 
R.E. 73-74 .. .. .. .. .. .. .. 5 
R.E. 75-76 .. .. .. .. .. .. .. 6 
R.E. 76-77 .. .. .. .. .. .. .. 6 
R.E. 77 .. .. .. .. .. .. .. .. 6 
R.E. 78-79 .. .. .. .. .. .. .. 6 
R.E. 79 .. .. .. .. .. .. .. .. 6, 7 
_ 

Plaintiffs' Exhibits  

Ex. 1 .. 21, 37 
Ex. 4 27 

U.S. Exhibits  

Ex. 16 45 
Ex. 49 .. 26, 38 • • • .. 

Defendants' Exhibits  

Ex. 1 •• •• 26 
Ex. 2 .• •• 17, 24, 25, 26, 33, 39, 40, 41, 44 



STATEMENT OF JURISDICTION  

This Court has jurisdiction of this appeal 

pursuant to 28 U.S.C. S 1291. 

STATEMENT OF THE ISSUE PRESENTED  

Was the trial court "clearly erroneous" in 

concluding that the plaintiffs had not proven the 

existence of voting dilution giving rise to a claim 

under Section 2 of the Voting Rights Act? 



2 - 

STATEMENT OF THE CASE  

I. Course of Proceedings and Disposition in Court 
Below 

The plaintiffs, Ronald Chisom et al., brought 

this suit in the United States District Court for the 

Eastern District of Louisiana on behalf of all black 

registered voters in Orleans Parish. The defendants 

are the Governor of Louisiana, the Secretary of State, 

and the Commissioner of Elections. The suit challenged 

the at-large election of two Justices to the Louisiana 

Supreme Court from the First Supreme Court District, 

comprised of the Parishes of Jefferson, Plaquemines, 

Orleans, and St. Bernard as being in violation of the 

1965 Voting Rights Act, as amended, because of alleged 

dilution of the voting strength of black registered 

voters in Orleans Parish. The action asked for 

declaratory and injunctive relief pursuant to 42 U.S.C. 

§§ 1973 and 1983. The plaintiffs sought division of 

the First Supreme Court District into two districts, 

one to be comprised of the Parishes of Jefferson, 

Plaquemines, and St. Bernard, and the other of Orleans 

Parish. 

The trial court granted a Fed.R.Civ.P. 

12(b)(6) motion to dismiss for failure of the 



- 3 

plaintiffs to state a claim upon which relief could be 

granted. The court held that Congress did not intend 

to apply the word "representatives" in Section 2 of the 

Voting Rights Act, as amended, to embrace members of 

the judiciary. Record, p. 173. 

This Court reversed the trial court in Chisom 

v. Edwards, 839 F.2d 1056 (5th Cir. 1988), holding that 

Section 2 does apply to the judiciary. Certiorari of 

this question was denied by the United States Supreme 

Court. U.S. 102 L.E.2d 379, 109 S.Ct. 390 

(1988). 

The plaintiffs then successfuily moved to 

enjoin election of a Justice from the First Supreme 

Court District in Fall, 1988. Chisom v. Edwards, 690 

F. Supp. 1524 (E.D. La. 1988). This Court, however, 

reversed the injunction. Chisom v. Roemer, 853 F.2d 

1186 (5th Cir. 1988), rehearing and rehearing en banc 

denied. The United States then intervened as a 

plaintiff. 

After a trial on the merits, the trial court 

held in favor of the defendants, concluding that the 

plaintiffs had not proven 

that the use of a multi-member electoral 
structure operates to minimize or cancel out 



- 4 - 

their ability to elect their preferred 
candidates. As detailed in the Court's 
findings of fact, the statistical evidence 
regarding judicial and non-judicial elections 
shows that the blacks have had full access to 
the political process and routinely elect 
their preferred candidates, often times 
joining forces with a significant portion of 
the white electorate, and creating 
significant crossover voting. 

Opinion, Record Excepts [hereinafter "R.E."] 50-51. 

The trial court held that the plaintiffs had also not 

proven their Fourteenth and Fifteenth Amendment claims. 

Opinion, R.E. 51-52. 

Because the plaintiffs filed a Notice of 

Appeal, this case is now before this Court for the 

third time. Record, p. 1136. The plaintiffs and the 

United States do not in their briefs address the 

Fourteenth and Fifteenth Amendment claims; instead, 

they urge only that the trial court erred in its 

application of § 2 of the Voting Rights Act. 

II. Statement of Facts  

A. The Louisiana Supreme Court and its Districts  

The Louisiana Supreme Court is the highest 

Court in the State of Louisiana. It is composed of 

seven Justices, elected from six Supreme Court 

districts for a term of ten years. No parish lines are 

cut by any of the election districts for the Supreme 



- 5 - 

Court. Opinion, R.E. 14; Transcript, p. 146 (remarks 

of United States Counsel). 

The First Supreme Court District, composed of 

Orleans, St. Bernard, Plaquemines, and Jefferson 

Parishes, has been the only district that elects two 

Justices .since adoption of the 1879 Louisiana 

Constitution 111 years ago. See Louisiana 1879 

Constitution Article 82; Louisiana 1898 Constitution 

Article 87; Louisiana 1913 Constitution Article 87; 

Louisiana 1921 Constitution Article 7 § 9; Louisiana 

1974 Constitution Article 5, § 4. Opinion, R.E. 26. 

The trial court found 

that the creation of the present First 
Supreme Court districting scheme was not 
devised for discriminatory purposes. The 
district was created because the parishes of 
Orleans, St. Bernard, Plaquemines, and 
Jefferson were considered an inseparable 
metropolitan or quasi-metropolitan area. 

Opinion, R.E. 27. 

The most recent Louisiana Constitution took 

effect in 1974 after the 1973 Louisiana Constitutional 

Convention. Twelve of the 132 delegates to the 

Convention were black. Opinion, R.E. 27; Uncontested 

Material Facts [hereinafter "Facts"], R.E. 73-74. Each 

delegate could select committee assignments; no blacks 



• 
- 6 

chose to be on the committee that wrote the Judiciary 

Article. Opinion, R.E. 27-28; Facts, R.E. 32. 

During the Convention three amendments were 

proposed to divide the Supreme Court into single-member 

districts. The first failed 27-85, with one black 

delegate voting for the proposal, ten against, and one 

absent. Opinion, R.E. 28; Facts, R.E. 75-76. The 

second failed 47-67, with seven blacks voting for the 

amendment, four against, and one absent. Opinion, R.E. 

28; Facts, R.E. 76-77. The final amendment proposed 

splitting the First Supreme Court District into two 

districts, with one Justice to be elected from each. 

When a white delegate argued in favor of the proposal, 

a black delegate from Orleans Parish responded that the 

present arrangement should not be changed. Opinion, 

R.E. 28-29; Facts, R.E. 77. This amendment was 

defeated 50-63, with five blacks voting for the 

amendment and seven against. Opinion, R.E. 29; Facts, 

R.E. 78-79. The final districting plan, leaving the 

First Supreme Court District as is, was adopted 103-9, 

with eight blacks voting for the plan, one against, and 

two absent. Opinion, R.E. 29; Facts, R.E. 79. Four of 



- 7 

the blacks voting for the plan were delegates from 

Orleans Parish. Facts, R.E. 79. 

The proposed Constitution was approved by the 

United States Department of Justice and ratified by the 

voters of Louisiana on April 20th, 1974. Opinion, R.E. 

29. Although the Louisiana Legislature has the 

authority to change districts and the number of 

Justices by a two-thirds vote, 1974 Louisiana 

Constitution Article 5, § 4, it has never done so. A 

proposed constitutional amendment to split the district 

with Orleans Parish constituting a district by itself 

was defeated by the Louisiana voters in October, 1989 

with the unofficial Associated Press totals showing a 

vote of 151,342 for the amendment and 451,845 against 

the amendment. Baton Rouge State-Times, October 9th, 

1989. In Orleans Parish the amendment was defeated by 

a three-to-one majority, with 16,526 voting for the 

amendment and 46,354 voting against the amendment. New 

Orleans Times-Picayune, October 8th, 1989. 



SUMMARY OF THE ARGUMENT  

The governing standard for review of the 

trial court's decision is the "clearly erroneous" 

standard. Determinations based on credibility of 

witnesses or on reasonable interpretations of evidence 

cannot be clearly erroneous. 

The Supreme Court fashioned a three-pronged 

test in Thornburg v. Gingles, 478 U.S. 30 (1986), for 

determining whether multimember districts operate to 

impair the ability of minority voters to elect 

representatives of their choice. The plaintiffs failed 

to meet their burden on each of the three prongs. 

First, the minority group is not sufficiently 

large and geographically compact to constitute a 

majority in a single-member district. All of the 

districts proposed by the plaintiffs fail to meet the 

customary plus or minus 5% deviation of the ideal 

district size. Further, the districts preferred by the 

plaintiffs make a one parish district or split a parish 

into two districts, both of which violate long-standing 

policy of the State of Louisiana. 

The plaintiffs also failed to prove the last 

two prongs of Gingles, the existence of black political 



• 
- 9 - 

cohesion and that the white majority votes sufficiently 

as a bloc to enable it usually to defeat the minority's 

preferred candidate. The judicial function is unique. 

Similarly, judiciary elections are different from other 

elections because of the importance of incumbency, the 

prevalence of uncontested elections, low turn-out, and 

high roll-off. An analysis of past First Supreme Court 

District elections fails to demonstrate that the 

plaintiffs 

of choice. 

elections 

have been 

Further, 

shows 

unable to elect their candidates 

an examination of other judicial 

success by a majority of 

black-preferred candidates. 

Finally, the trial court properly examined 

the other factors mentioned in the Senate Report on the 

1982 Voting Rights Act amendments. Blacks constitute a 

majority of registered voters in one of the parishes in 

the First Supreme Court District. Blacks have 

registered to vote at a higher percentage rate ,than 

whites in two of the other three parishes. The 

plaintiffs showed 

appeals by white 

black candidates. 

the long-standing 

no examples of racial overtones or 

candidates in their races against 

The trial court correctly recognized 

policy of the State of Louisiana to 



- 10 - 

elect two Justices from the New Orleans metropolitan 

area, a policy which the plaintiffs never argue had its 

origin in racial discrimination. 



- 11 - 

ARGUMENT 

I. THE "CLEARLY ERRONEOUS" STANDARD  

The "clearly erroneous" standard is the 

proper standard of review for a district court's 

findings regarding a violation of Section 2 of the 

Voting Rights Act, 42 U.SC § 1973. Monroe v. City of  

Woodville, 881 F.2d 1327, 1331-32 (5th Cir. 1989); 

Brewer v. Ham, 876 F.2d 448, 450 (5th Cir. 1989); 

Overton v. City of Austin, 871 F.2d 529, 533 (5th Cir. 

1989). See also Thornburg v. Gingles, 478 U.S. 30, 79 

(1986). "[A] finding is 'clearly erroneous' when 

although there is evidence to support it, the reviewing 

court on the entire evidence is left with the definite 

and firm conviction that a mistake has been committed." 

Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 

573 (1985), quoting United States v. United States  

Gypsum Co., 333 U.S. 364, 395 (1948). "If the factual 

determinations are based on determinations of the 

witnesses' credibility, or on reasonable interpretation 

or inferences from the testimony or other evidence, the 

district court's finding's cannot be clearly erroneous." 

Campos v. City of Baytown, Texas, 840 F.2d 1240, 



- 12 - 

1243-44 (5th Cir. 1988), citing Anderson v. City of  

Bessemer City, N.C., 470 U.S. 564, 574-75 (1985). Here 

there was testimony of eleven witnesses, several of 

whom were experts. The experts were cross-examined 

concerning their expert reports. 

II. SECTION TWO OF THE VOTING RIGHTS ACT AND THE 
SUPREME COURT'S DECISION IN THORNBURG V. GINGLES  

The Voting Rights Act was originally passed 

by Congress in 1965. 42 U.S.C. § 1973. In 1982 § 2 of 

the Act was amended. This Section states as follows in 

its present form: 

42 §1973. Denial or abridgement of right to 
vote on account of race or color through 
voting qualifications or prerequisites; 
establishment of violation 

(a) No voting qualification or prerequisite 
to voting or standing, 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) of this 
section is established if, based on the 
totality of circumstances, it is shown that 
the political processes leading to nomination 
or election in the State or political 
subdivision are not equally open to 
participation by members of a class of 
citizens protected by subsections (a) of this 
section in that its members have less 



• 
- 13 - 

opportunity than other members of the 
electorate to participate 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 noting in this section 
establishes a right to have members of a 
protected class elected in numbers equal to 
their proportion in the population. 

42 U.S.C. § 1973. 

The Supreme Court first analyzed the amended 

5 2 in Thornburg v. Gingles, 478 U.S. 30 (1986), a case 

in which plaintiffs challenged multimember North 

Carolina state legislative districts. The Court noted 

that "(m]ultimember districts and at-large election 

schemes, however, are not per •se violative of minority 

voters' rights. . Minority voters who contend that 

the multimember form of districting violates 5 2 must 

prove that the use of a multimember electoral structure 

operates to minimize or cancel out their ability to 

elect their preferred candidates." 478 U.S. at 48 

(citations omitted). 

The Court in Gingles fashioned a three-part 

test for determining whether multimember districts 

operate to impair the ability of minority voters to 

elect representatives of their choice: 



- 14 - 

First, the minority group must be able to 
demonstrate that it is sufficiently large and 
geographically compact to constitute a 
majority in a single-member district. If it 
is not, as would be the case in a 
substantially integrated district, the 
multimember form of the district cannot be 
responsible for minority voters' inability to 
elect its candidates. 

* * * 

Second, the minority group must be able to 
show that it is politically cohesive. If the 
minority group is not politically cohesive, 
it cannot be said that the selection of a 
multimember electoral structure thwarts 
distinctive minority group interests. 

* * * * 

Third, the minority must be able to 
demonstrate that the white majority votes 
sufficiently as a bloc to enable it--in the 
absence of special circumstances, such as the 
minority candidate running unopposed * * * 
--usually to defeat the minority's preferred 
candidate. 

* * * * 

In establishing this last circumstance, the 
minority group demonstrates that submergence 
in a white multimember district impedes its 
ability to elect its chosen representatives. 

478 U.S. 50-51 (citations omitted)(emphasis in 

original). 



• 
- 15 

III. THE PLAINTIFFS HAVE NOT MET THEIR BURDEN UNDER  
THORNBURG V. GINGLES. 

In determining whether this case should be 

reversed, the overriding question before this Court is 

whether the trial court was "clearly erroneous" in its 

decision that the plaintiffs did not meet this three 

part test. A review of the evidence shows that the 

trial court's finding was clearly proper. 

A. The trial court was not "clearly 
erroneous" in concluding that the 
plaintiffs did not demonstrate that "the 
minority group . . . is sufficiently 
large and geographically compact to 
constitute a majority in a single-member 
district." 

The trial court found that a compact minority 

district could not be drawn within the First Supreme 

Court District area. In so concluding, the trial court 

examined the proposed districts and noted that none of 

them fell within the customary plus or minus 5% 

deviation of the ideal district size. Opinion, R.E. 

18-19. Ideal district size is determined by dividing 

the population by the number of seats. Brown v.  

Thomson, 462 U.S. 835, 839 (1983). 

The first district proposed by the plaintiffs 

gave Orleans Parish its own Justice and proposed that 



- 16 - 

the other three parishes elect a Justice. The trial 

court noted that "to date, no parish is isolated as a 

single [Supreme Court] district in this state." 

Opinion, R.E. 19. Further, even assuming such a 

division would be proper, the Orleans district would 

demonstrate an approximate .-7.2% deviation from the 

ideal district, and the three parish district would 

demonstrate an approximate -9.3% deviation from the 

ideal district. Opinion, R.E. 18. 

Placing Orleans and St. Bernard Parishes 

together in one district would present a deviation of 

only 3.4%, but the remaining two parishes, Plaquemines 

and Jefferson, would then have a district with a -20% 

deviation. Opinion, R.E. 18-19. 

Leaving Jefferson Parish by itself would 

result in a district with a deviation of -24.3%. The 

other three parishes would form a district with a 

deviation of only 1.1%, but they would have a black 

voter registration of only 45.3%. Opinion, R.E. 19. 

Realizing that there was no way to place the 

parishes into two districts, the plaintiffs then made 

two proposals to split off part of Jefferson Parish and 

tack it onto Orleans Parish to solve their population 



• 
- 17 - 

problems. Dr. Ron Weber, an expert for the defendants, 

stated in his report that he was unable to verify the 

population counts for the two proposals. Defendants' 

Exhibit 2, p. 53 [hereinafter "Def. Ex. #, p. #1. Dr. 

Weber's calculations showed that with each example the 

non-black majority district would have more than a 12% 

deviation. Further, Louisiana has never split a parish 

and placed parts of it into two Supreme Court 

Districts. 

After examining the districts proposed by the 

plaintiffs, the trial court concluded "the only way to 

provide a sizable single member district in which 

blacks would constitute a voting age majority would be 

to create a gerrymandering district lacking 

geographical compactness." Opinion, R.E. 19-20. 

The plaintiffs contend that population 

deviation of the districts is irrelevant as other 

existing Supreme Court Districts also deviate from the 

plus or minus 5% standard. Such districts were drawn 

long ago and remain the same pursuant to long-standing 

Louisiana policy. The plaintiffs are seeking that the 

First Supreme Court District be redrawn to provide the 

black population with a majority black Supreme Court 



- 18 - 

District. Where districts are redrawn for voting 

rights purposes as for reapportionment purposes, there 

should be strict adherence to the plus or minus 5% 

standard. See, e.g., Connor v. Finch, 431 U.S. 407 

(1977); Chapman v. Meier, 420 U.S. 1 (1975); Graves v.  

Barnes, 446 F. Supp. 560 (W.D. Tex. 1977 (three judge 

court)), affirmed, 435 U.S. 901 (1978). 

The plaintiffs have a further reason for 

contending that population deviation is irrelevant: 

They comment that the "one-man, one-vote" concept has 

been held inapplicable to the judiciary. Wells v.  

Edwards, 347 F. Supp. 453 (M.D. La. 1972), affirmed 

without opinion, 409 U.S. 1095 (1973). The basis for 

the Wells opinion was the difference between the 

judiciary and normal governmental activities concerning 

which a popular election in compliance with Reynolds v.  

Sims, 377 U.S. 533 (1964), would apply. 347 F. Supp. 

455, citing Hadley v. Junior College District, 397 U.S. 

50, 56 (1970). In so holding, the Wells trial court 

noted as follows: 

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



- 19 - 

347 F. Supp. at 455. The concept that judges are not 

"representatives" is, at the very least, extremely 

questionable in this circuit since this Court's 

1/ 
decision in a prior appeal of this case. See 

Chisom v. Edwards, 839 F.2d 1056 (5th Cir. 1988). 

Indeed, that same opinion distinguished Wells as not 

involving a § 2 claim. Id. at 1061. 

Gingles implicitly, if not explicitly, sets 

forth a one-man, one-vote or proportionality principle 

as the first part of its three-prong test. See Mobile  

v. Bolden, 446 U.S. 55, 75-77 (1980)(explaining the 

relationship between the one-man, one-vote concept and 

the proportionality principle). Four of the Justices 

in Gingles so recognized in stating: 

The Court's standard for vote dilution, when 
combined with its test for undiluted minority 
voting strength, makes actionable every 
deviation from usual, rough proportionality 
in representation for any cohesive minority 
group as to which this degree of 
proportionality is feasible within the 
framework of single-member districts. 
Requiring that every minority group that 
could possibly constitute a majority in a 
single-member district be assigned to such a 
district would approach a requirement of 

11 Defendants, of course, reserve the right to ask for 
an en banc hearing or for certiorari to the United 
States Supreme Court concerning this overriding issue. 



- 20 

proportional representation as nearly as is 
possible within the framework of 
single-member districts. Since the Court's 
analysis entitles every such minority group 
usually to elect as many representatives 
under a multimember district as it could 
elect under the most favorable single-member 
district scheme, it follows that the Court is 
requiring a form of proportional 
representation. 

478 U.S. at 97. 

Without the measure of individual voting 

strength provided in legislative cases by the one-man, 

one-vote rule, Gingles' first prong is meaningless in 

the judicial context. It is always possible to 

construct a geographically compact black voting 

majority district by continuing to reduce the total 

population in that district down to, if necessary, a 

minimum of one. There is no judicially discernable and 

manageable standard by which a court could find that a 

given judicial election system does not dilute minority 

voting strength if the population size of the 

hypothetical single-member subdistrict can be 

contracted or expanded at will. 

The trial court also determined that the 

proposed districts lacked compactness, stating: 

Plaintiffs would have the Court create 
an amoeba-shaped, wholly-metropolitan 
district unique among the Supreme Court 



- 21 - 

districts in the state for the sole purpose 
of guaranteeing a black justice. In 
concluding, the Court stresses that the 
plaintiffs' goal appears wholly contrary to 
the express proviso in section 2 that 
"nothing in this section established a right 
to have [blacks.] elected in numbers equal to 
their proportion in population. 

Opinion, R.E. 41. As this Court has held in the 

reapportionment context, 

in drawing constitutionally and statutorily 
acceptable districts, the court should adhere 
to considerations of "compactness, 
contiguousness and the preservation of 
boundaries," and the court should not post as 
its primary goal "racially balanced 
representation." 

Washington v. Tensas Parish School Board, 819 F.2d 609, 

612 (5th Cir. 1987), quoting Marshall v. Edwards, 582 

F.2d 927, 937 (5th Cir. 1978), cert. denied 442 U.S. 

909 (1979). 

In determining the theoretical black majority 

district, plaintiffs concentrate on using Orleans 

Parish. On the other hand, as discussed below, in 

attempting to prove polarized voting, all but two of 

the examples listed by the plaintiffs' expert, Dr. 

Richard Engstrom, come from elections within Orleans 

Parish. Pl. Ex. 1, Table 1. If, as the plaintiffs 

imply, blacks cannot elect judicial candidates in 

Orleans Parish, why should Orleans Parish be considered 



- 22 - 

a geographically compact effective black majority 

district for the purposes of establishing the first 

prong of Gingles? 

B. The trial court was not "clearly 
erroneous" in concluding that the 
plaintiffs did not prove sufficient 
black cohesion and that the plaintiffs 
did not prove that white bloc voting 
prevents election of the minority's 
candidates of choice. 

The second and third prongs of the Gingles  

test are that the minority group, here the blacks, 

"must be able to show that it is politically cohesive," 

and that "the white majority votes sufficiently as a 

bloc to enable it . usually to defeat the 

minority's preferred candidate." 478 U.S. at 51. The 

trial court held that the plaintiffs did not meet their 

burden of proof on either prong, after considering all 

of the evidence: 

In any event, whether testimony, 
stipulated data, or statistical analysis is 
cited, the Court's evaluation of the presence 
of political Cohesion and racially polarized 
voting includes consideration of the race of 
the voters, the race of the candidates, and 
the access the minority has had to the 
political process. 

Opinion, R.E. 23. 



- 23 - 

1. Uniqueness of the Judiciary and 
Judiciary Elections  

Before analyzing any elections, the trial 

court first found that judicial elections are different 

from other types of elections: 

[J]udicial elections are sufficiently 
different from elections for legislative and 
administrative offices to warrant caution in 
making inferences about voter behavior using 
the techniques employed to analyze voter 
polarization and vote dilution in those other 
types of elections. In particular, judicial 
elections as contrasted to those other 
elections are characterized by lower turnout, 
higher roll-off rates, and by less voter 
interest. For example, analyses of the level 
of competition for judicial offices compared 
to state legislative offices within the four 
parish area of the First Supreme Court 
District during the past decade indicate that 
almost 64 percent of judicial races have been 
uncontested, whereas only about 30 percent of 
state senate and house of representatives 
elections have gone uncontested. The number 
of candidates for judicial offices is 
particularly low in the election years when 
the terms of of incumbent judicial officers 
expired. 

Opinion, R.E. 20-21. 

Dr. Ron Weber dealt at length with these 

differences in his expert report. Dr. Weber noted 

initially that the judicial function is unique within 

the American system because "the• function of the 

judiciary is to interpret and administer justice within 



- 24 - 

the structures of the law--law that has been 

established by the legislature and carried out by the 

executive." Def. Ex. 2, P. 2. Judges, unlike 

legislatures, "do not have representative 

constituency; rather, they represent justice through 

the resolution of litigation and court disputes." Def. 

Ex. 2, p. 4. 

Just as the judicial function is different 

from the legislative and administrative function, 

"[j]udicial elections differ from elections for 

legislative and administrative office." Def. Ex. 2, p. 

5. "[J]udicial elections tend to be non-competitive 

and are rarely seriously contested, consistently 

attracting low voter turnout and public attention, and 

do not involve debates on significant issues." Def. 

Ex. 2, p. 5. Further, "[t]he judicial electoral system 

operates in such a way as to assure elected judges of 

long tenure and relative freedom from opposition." 

Def. Ex. 2, p. 5. 

Dr. Weber also discussed the low turnout in 

judicial elections: 

Critics of judicial election systems 
note that the electorate pays little 
attention to these low-salience races and has 
little knowledge of the candidates and their 



- 25 - 

qualifications. The overall level of 
participation in a state's judicial elections 
is largely a reflection of turnout for the 
major statewide and national contests which 
pull voters to the polls. Turnout can be 
measured by determining the "roll-off" rate 
of elections. This is done by comparing the 
total vote received by the judicial candidate 
with the total number of ballots case in the 
election. The smaller the "roll-off", the 
greater the interest in the election. 

Def. Ex, 2, p. 6., During the trial, in response to 

questions by the trial court, Dr. Engstrom also 

testified about the difference in the number of people 

voting in Judicial races as compared with high 

visibility races. Transcript, pp. 153-55. 

In determining electoral choice, 

"[i]ncumbency and judicial experience are preeminent in 

the minds of voters and candidates when they confront 

judicial elections. Very few incumbent judges in 

Louisiana are ever challenged in elections when their 

terms of office end." Def. Ex. 2, p. 7. Uncontested 

elections are particularly prevalent during regular 

elections. During the most recent general judicial 

elections in 1978 and 1984, more than 75% of the judges 

were unopposed. Def. Ex. 2, p. 7. 

Dr. Weber found that "[t]he proportion of 

uncontested judicial posts drops in the interim years 



- 26 - 

when almost all of the elections held were to fill 

vacancies or new judgeships." Def. Ex. 2, p. 7. In 

such elections, "candidates with judicial experience 

inevitably defeat those without judicial experience." 

Def. Ex. 2, p. 7. 

The defendants' other expert, Dr. Robert S. 

Miller, agreed with the conclusions of Dr. Weber. Def. 

Ex. 1, p. 7. He noted the existence of "a generally 

accepted career ladder which qualifies incumbent judges 

for advancement." Def. Ex. 1, p. 7. He added, that 

"[o]nce elected, both black and white voters respond to 

incumbent judges in a race neutral manner for 

re-election or advancement." Def. Ex. 1, p. 8. 

Neither Dr. Richard Engstrom, a plaintiffs' 

expert, nor Dr. Bernard Grofman, the intervenor's 

expert, disagreed with these conclusions by Dr. Weber 

and Dr. Miller. In fact, Dr. Grofman stated that 

"[j]udicial elections obviously provide the best 

evidence for voting patterns when it is a judicial 

election system under challenge." Intervenor's Exhibit 

49, p. 4 (hereafter U.S. Ex.#, 10.#). Another 

plaintiffs' expert, Silas Lee, III, concluded that 



S 
- 27 - 

judicial races "have low visibility and low voter 

interest." Pl. Ex. 4, p. 1. 

The then Solicitor General of the United 

States, Honorable Charles Fried, recognized that 

distinction between judicial elections and other 

elections might be required when, in his brief for the 

United States, as amicus curiae, filed in the Supreme 

Court of the United States, he stated: 

8. Subjecting elected judges to Section 2 
coverage does not mean, of course, that 
Section 2 necessarily applies to judicial 
elections in precisely the same way as it 
applies to other elections. The differing 
function of judges from other elected 
officials may influence the factors to be 
considered in determining if a Section 2 
violation has occurred, and what would be an 
appropriate remedy. These difficult issues 
are not presented in this case, since the 
court of appeals' decision dealt 'only with 
the question of whether Section 2 covers 
judicial elections at all. See U.S. Amicus 
B. 19-21. Questions of how Section 2 should 
be applied will arise when there is a 
specific application of Section 2 to judicial 
elections (e.g., on the remand in this case). 

No. 88-217, In the Supreme Court of the United States, 
October Term, 1988, Buddy Roemer, Governor of the State  
of Louisiana, et al., Petitioners v. Ronald Chisom, et 
al., On Petition for a Writ of Certiorari to the United 
States Court of Appeals for the Fifth Circuit, Brief 
for the United States as Amicus Curiae, at p. 10, n.8. 



- 28 - 

2. First Supreme Court District Elections  

The district at issue in this lawsuit is the 

First Supreme Court District, and, therefore, the best 

evidence concerning voting patterns is found in the 

elections for that post. 

A black ran for each of the two vacant First 

Supreme Court District seats in 1972. The trial court 

found that "(e]ach chose to become a candidate for a 

different seat, but the evidence fails to demonstrate 

this candidacy or the outcome were dictated by racial 

factors." Opinion, R.E. 33. Neither election involved 

an incumbent. 

One black, Revius Ortique, who at that time 

had no prior judicial experience, ran against Pascal 

Calogero and two other candidates. The results in that 

election were as follows: 



- 29 - 

TABLE 5  

1972 Special Elections Results 
for the Two Seats 

from the First District  

Candidate  

Ortique (B) 

Calogero 

Redmann 

Sarpy , 

Orleans vote as 
a proportion of 

Total vote (%) Orleans vote (%) the total vote  

27,648 

67,256 

22,262 

79,796 
196,962 

(14.0) 21,744 (20.7) 

(34.1) 34,473 (32.8) 

(11.3) ' 10,542 (10.0) 

(40.5) 38,256 (36.4)  
105,015 

78.6 

51.3 

47.4 

47.9 
53.3 

Opinion, R.E. 59. Judge Ortique testified that a 

"substantial number" of blacks crossed over and voted 

for Mr. Calogero, who was ultimately elected. 

Transcript, p. 30. Judge Ortique also testified that 

blacks contributed "to his white opponent in large 

measure and to mine as in a token fashion." 

Transcript, p. 31. 

The other black, Earl J. Amedee, ran against 

Walter Marcus and three other candidates. The results 

in that race were as follows: 



- 30 - 

TABLE 5  

1972 Special Elections Results 
for the Two Seats 

from the First District  

Candidate Total vote (%)  

Amedee (B) 11,872 

Marcus 78,810 

Borsetta 35,272 

Garrison 52,249 

Samuel 25,476 
203,679 

( 5.8) 

(38.7) 

(17.3) 

(25.7) 

(12.5) 

Orleans vote (%)  

8,997 ( 8.4) 

46,629 (43.4) 

19,728 (18.4) 

26,055 (24.2) 

5,994 ( 6.6) 
107,403 

Opinion, R.E. 59. Mr. Amedee ran 

Orleans vote as 
a proportion of 
the total vote  

fourth 

75.6 

59.2 

55.9 

49.9 

23.5 
52.7 

in Orleans 

Parish, and received even less support than Mr. 

Ortique. Walter Marcus was elected to that seat on the 

Supreme Court. 

Dr. Weber reviewed the results from these 

elections, finding: 

Neither Ortique nor Amedee received cohesive 
black Democratic voter support in Orleans 
Parish in those elections. The evidence from 
these two 1972 elections and the three more 
recent elections indicates that black 
minority voters in the First Supreme Court 
District have not been deprived of the 
opportunity to elect candidates of choice to 
the two positions on the supreme court. 

Def. Ex. 2, pp. 18-19. 



• 
- 31 - 

Both Pascal Calogero and Walter Marcus •are 

still members of the Louisiana Supreme Court. No black 

has challenged their incumbency. Blacks voted for 

these incumbents in a higher percentage than for their 

challenger in two of the three elections since 1972. 

Opinion, R.E. 38-39. In fact, blacks almost 

unanimously supported Justice Calogero in 1974, 

although less than three-fourths of whites supported 

him. Id. After analyzing the 1974, 1980, and 1988 

elections, Dr. Weber concluded, "the winning candidates 

each time were preferred by the majority of blacks 

voters as well as white voters (see Table 2). In none 

of these elections did white voters vote as a bloc to 

prevent the black preferred candidate from being 

elected." Def. Ex. 2, p. 15. 

After analyzing the results in these 

elections, the trial court concluded: 

Based upon the foregoing, the Court finds 
there is no pattern of racial bloc voting in 
the four most recent elections for Supreme 
Court Justice from the First Supreme Court 
District. 

Opinion, R.E. 40. 

3. Other Judicial Elections Within the 
First Supreme Court District 

After reviewing the evidence concerning the 



- 32 - 

First Supreme Court District, the trial court found 

that since January 1978 there had been 51 instances in 

which a judicial election within the District was 

filled by a contested election. Opinion, R.E. 40. 

There were 66 primary and general election contests for 

these seats. 

Blacks were candidates against whites for 21 

of the seats and in 30 of the elections. Opinion, R.E. 

40. The remaining positions and elections involved 

white candidates only. "[T]he minority candidate of 

choice has been elected in 62.7% of the elections." 

Opinion, R.E. 41. Additionally, Dr. Weber found that 

black preferred candidates won a place in the run-off 

18 of 19 times, failing once in 1978. Def. Ex. 2, p. 

19. 

The trial court determined that there was a 

lack of cohesion, noting that "[e]cological regression 

analyses for 34 judicial elections (24 primaries and 10 

general elections) show that there is significant 

crossover voting among both white and black voters in 

judicial elections." Opinion, R.E. 41. In his expert 

report, Dr. Weber cited examples of cross-over voting: 

The successes of Judge Johnson in 1984 and 
Judge Magee in 1986 were the product of white 



- 33 - 

cross-over votes, while the wins by Judge 
Roberts in 1984 and Judge Giarrusso in 1988 
were produced by black cross-over votes. The 
same conclusion also holds for recent 
elections for Orleans Juvenile Court, New 
Orleans Municipal Court, and New Orleans 
Traffic Court. 

Def. Ex. 2, pp. 24-26 (table omitted). As earlier 

stated, Judge Ortique testified that a "substantial 

number" of blacks crossed over and voted for Mr. 

Calogero, who was ultimately elected. Transcript, 

p. 30. 

Judge Bernette J. Johnson was called by the 

plaintiffs. She testified that 30 percent of the white 

voters crossed over and supported her for judge. 

Transcript, p. 48. Another plaintiffs' witness, Edwin 

Lombard, Clerk of the Criminal District court in 

Orleans Parish, testified that he received "a lot of 

crossover vote." Transcript, p. 109. 

The trial court cited the example of Lionel 

Collins, a black who served as a judge in Jefferson 

Parish. After his appointment, Judge Collins "was 

supported by prominent political factions and was 

unopposed for both his initial election to another seat 

in 1978 and for his reelection in 1984." Opinion, R.E. 

41. Similarly, black candidate Dennis Dannel won an 



- 34 - 

Orleans Parish Traffic Court Judge position over a 

white incumbent who was endorsed by two prominent 

blacks, former New Orleans Mayor Ernest Morial and 

State Senator Bill Jefferson. Opinion, R.E. 42. 

The trial court rejected Dr. Richard 

Engstrom's report concerning racially polarized voting, 

noting that the evidence showed that blacks could elect 

candidates of choice. Opinion, R.E. 45. Dr. Engstrom 

centered his analysis on the race of the candidates, 

not the race of the voters. Opinion, R.E. 45. 

The plurality opinion in glaita held that 

race of the voter, not of the candidate is the 

important consideration: 

[B]oth the language of .5 2 and a functional 
understanding of the phenomenon of vote 
dilution mandate the conclusion that the race 
of the candidate per se is irrelevant to 
racial bloc voting analysis. . . . Because 
both minority and majority voters often 
select members of their own race as their 
preferred representatives, it will frequently 
be the case that a black candidate is the 
choice of blacks, while a white candidate is 
the choice of whites. . . . Nonetheless, the 
fact that race of voter and race of candidate 
is often correlated is not directly pertinent 
to a § 2 inquiry. Under § 2, it is the 
status of the candidate as the chosen 
representative of a particular racial group, 
not the race of the candidate, that is 
important. 



- 35 - 

478 U.S. at 67-68 (emphasis in original). Accordingly, 

Dr. Weber examined both black/white races and 

-white/white races to determine "the chosen 

representative of a particular racial group." 

Despite the plurality language in Gingles, 

this Court has noted that elections including black and 

white candidates are the "most probative of racially 

polarized voting." Westwego Citizens for Better  

Government v. Westwego, 872 F.2d 1201, 1208 n. 7 (5th 

Cir. 1989). Dr. Engstrom found that the elections he 

examined showed polarized voting. This Court has, 

however, noted that polarization and cohesion are not 

synonymous: 

Appellants err by implying that a 
finding of racial polarization in voting 
behavior is synonymous with a group's 
political cohesion. The terms are quite 
distinct. That a group's voting behavior is 
racially polarized indicates that the group 
prefers candidates of a particular race. 
Political cohesion, on the other hand, 
implies that the group generally unites 
behind a single political "platform" of 
common goals and common means by which to 
achieve them. 

Monroe v. City of Woodville, 881 F.2d 1327, 1331 (5th 

Cir. 1989). 

Dr. Engstrom did not opine that, because of 

this polarization, the voting of the black voters was 



- 36 - 

diluted. Dilution occurs when the black voters are 

unable to elect their candidates of choice. This Court 

has commented that "rather than provided us with 

specific definition of dilution, the courts have stated 

that dilution occurs when the minority voters have no 

real opportunity to participate in the political 

process." David v. Garrison, 553 F.2d 923, 927 (5th 

Cir. 1977). As the Supreme Court held in Gingles, "the 

minority must be able to demonstrate that the white 

majority votes sufficiently as a bloc to enable it . 

usually to defeat the minority's preferred 

candidate." 478 U.S. at 51 (emphasis in original). 

Nowhere does Dr. Engstrom say how many times the black 

candidate won in the elections he examined. Exhibit 16 

of the United States identifies six blacks who have 

been elected as judges. 

Of the thirty-two elections analyzed by Dr. 

Engstrom in which he finds racial polarization, thirty 

took place in Orleans Parish, the single-member 

district proposed by the plaintiffs. Dr. Engstrom only 

analyzed two elections outside of Orleans Parish. The 

first was a juvenile court election involving Anderson 

Council. Transcript, p. 84. Mr. Council testified 



- 37 - 

during the trial that one of his two white opponents 

spent $215,000 and the other "spent upwards" of that 

amount, while Mr. Council spent only $23,573.94. 

Transcript, pp. 91-97. 

Under cross-examination, Dr. Engstrom 

admitted that "obviously candidates that spend very 

little money are unlikely to be elected. So in that 

sense they are much less viable." Transcript, p. 156. 

Nevertheless, in constructing his table, he did not 

look at the financial data spent by candidates. 

Transcript, p. 159. Instead, he made his 

determinations regarding crossover and lack of minority 

success without regard to the viability of candidates. 

The second election Dr. Engstrom analyzed in 

Jefferson Parish involved a black, Melvin Zeno. 

According to Dr. Engstrom's regression analysis, Mr. 

Zeno received 103.7% of the black votes, which is 

somewhat difficult to imagine. Pl. Ex. 1, Table 1. At 

any rate, Dr. Weber noted during his testimony that Mr. 

Zeno's opponent "was an incumbent legislator very well 

important, high name recognition -- Mr. Zeno did not 

raise and spend money at the level that is normally 

necessary to counter someone with high name 



• 
- 38 - 

recognition." Transcript, p. 209. The trial court 

made a similar observation in discounting the 

significance of that race. Transcript, p. 199. The 

court also found that Mr. Zeno spent half the amount 

spent by his opponent. Opinion, R.E. 32. 

The expert for the United States, Dr. Bernard 

Grofman, stated that in his opinion the racially 

polarized voting "would usually prevent" black voters' 

from electing the candidate of their choice in the 

district. U.S. Ex. 49, p. 14. Dr. Grofman, however, 

analyzed no elections and looked at no campaigns. He 

merely read the statistics compiled by Dr. Engstrom and 

Dr. Weber. Surely if Dr. Engstrom does not conclude 

that there is dilution based on his own statistics, Dr. 

Grofman cannot conclude that there is dilution based on 

Dr. Engstrom's statistics. 

Unlike Dr. Engstrom, in his report Dr. Weber 

also analyzed campaign finance data to determine the 

viability of the candidates. Dr. Weber was able to 

find such data only for the judicial elections since 

1982. He found that six black individuals "were not 

serious candidates for the post in question" and 

consequently that the Court should ignore the elections 



-• 39 - 

in which they participated. Def. Ex. 2, P. 27. After 

examining this evidence, Dr. Weber concluded: 

For black candidates, the data show that in 
87.5 percent of the elections where the 
candidate has spent the most money, the black 
candidate has prevailed. In the situations, 
where the black candidate does not spend the 
most money, the black candidate loses 75 
percent of the time. Campaign spending has 
about the same impact on winning judicial 
elections for black candidates as it has on 
winning by all candidates. 

Def. Ex. 2, p. 29. 

Judge Ortique testified that when he ran for 

the Supreme Court, blacks contributed to his white 

opponent "in large measure and to mine as in a token 

fashion." Transcript, p. 31. And, as earlier stated, 

Mr. Council spent less than 5% of the amount spent on 

the election in which he ran. Transcript, pp. 91-92. 

The trial court noted that some blacks lost 

judicial elections because of roll-off. Opinion, R.E. 

43. Before discussing his findings, Dr. Weber 

commented that "If black voters sign-in to vote but 

fail to vote for a judicial office, then the degree of 

roll-off may have an impact on whether black voter 

preferred candidates will be successful." Def. Ex. 2, 

p. 38. His analysis of roll-off in 24 judicial 

elections supports the trial court's findings. 



- 40 - 

4. Exogenous Elections Within the 
First Supreme Court District  

The trial court concluded "data from judicial 

elections should receive greater weight." Opinion, 

R.E. 50. Nevertheless, the trial court did look at 

data from exogenous elections. In the 1987 Secretary 

of State primary, a black candidate, Edwin Lombard, was 

the plurality winner in the First Supreme Court 

District. Opinion, R.E. 43. He received over 80% of 

the black votes and under 20% of the white votes. Dr. 

Weber found that white voters were much less cohesive 

than blacks, with Lombard and two other candidates 

dividing about 75% of the white vote. Def. Ex. 2, p. 

30. In Orleans Parish, Lombard ran a close second to 

McKeithen among whites. Def. Ex. 2, p. 30. 

The trial court concluded that there was 

increasing cross-over among both black and *white voters 

in Orleans Parish, stating that "[c]ross-over voting by 

white voters to support black candidates for 

non-judicial offices in Orleans Parish occurs on a 

regular basis with the result that black candidates 

frequently win parish-wide offices." Opinion, R.E. 43. 

In his report, Dr. Weber examined all parish-wide local 

elections in Orleans Parish from 1980 to the present in 



- 41,-

which black candidates participated to determine how 

racial bloc voting operated in non-judicial elections. 

He analyzed the cross-over as follows: 

These "cross-over" elections reveal a clear 
pattern of increased black candidate success 
for local offices. The bivariate ecological 
regression and extreme case analyses suggest 
that successful black candidates are able to 
garner increased levels of white voter 
support; Mayor Barthelemy made the run-off 
in 1986 because of significant white voter 
support and won a majority of white votes in 
his successful race against William 
Jefferson. Criminal District Court Clerk 
Lombard won reelection in 1986 by attracting 
about two-thirds of the white vote. And in 
other - less dramatic elections, white 
cross-over votes are making the difference in 
close black candidate wins for councilman 
at-large and school board. When one looks at 
elections for non-judicial offices in Orleans 
Parish, the picture is one of repeated black 
candidate success and and of the preferences 
of black voters usually being converted into 
wins for candidates of their choice. 

Def. Ex. 2, pp. 32-38 (tables omitted). 

C. The trial court correctly examined 
the other Senate Report factors.  

As stated, the Gingles Court found three 

circumstances that "are necessary preconditions for 

multimember districts to operate to impair minority 

voters' ability to elect representatives of their 

choice.' 478 U.S. at 50. This Court has noted that 

plaintiffs must establish that they meet the threefold 



- 42 - 

threshold test before the trial court need even 

consider the totality of the circumstance test which 

looks at the other factors enumerated in the Senate 

Judiciary Committee majority report on the 1982 

amendments to § 2 of the Voting Rights Act. Monroe v.  

City of Woodville, 881 F.2d 1327, 1329-30 (5th Cir. 

1989); accord, McNeil v. Springfield Park District, 851 

F.2d 937, 942-43 (7th Cir. 1988), cert. denied U.S. 

104 L.E.2d 204 (1989). Cf. Overton v. City of  

Austin, 871 F.2d 529 (5th Cir. 1989)(plaintiff may lose 

at the threshold step pretermitting need to conduct 

totality of circumstances test). While properly 

focusing on the threshold inquiries, the trial court 

did examine the other factors. 

The plaintiffs contend that the trial court 

should have given weight to past discrimination and to 

socioeconomic disparities as preventing blacks from 

voting today in judicial elections for their 

representatives of choice. The plaintiffs cite an 

attempted voter purge in 1986 mounted by supporters of 

Republican Henson Moore in a U.S. Senate election. As 

was pointed out during cross-examination, the attempted 

purge was not by the State, but by the Republicans. 

Transcript, p. 132. Further, the purge was enjoined. 

Id.; Long v. Gremillion, Civ. Suit 142,389, Ninth 



- 43 - 

Judicial District Court for Rapides Parish, Louisiana 

(October 14, 1986). 

The trial court noted that the gap between 

black and white voter registration had decreased and 

that in one of the four parishes in the First Supreme 

Court District, more blacks are registered than whites: 

In sum, notwithstanding historic 
disenfranchisement, voter registration since 
1965 has demonstrated generally increased 
participation by black voters, and today no 
state action or laws prevent black 
participation in the electoral process. In 
the summer of 1984, the most recent analysis 
of voter registration by race showed over 
seventy percent of both races are registered 
to vote and that the gap in between black and 
white voter registration continues to close. 
In fact, as previously indicated, black voter 
registration now exceeds white voter 
registration in Orleans Parish. 

Opinion, R.E. 26. Dr. Weber found as follows 

concerning registration: 

The data in Table 10 indicate that 
blacks are registered at higher rates than 
whites in Plaquemines and St. Bernard 
Parishes, while whites are registered at 
higher rates than blacks in Jefferson and 
Orleans Parishes. Although blacks are 
registered at lower rates than whites in 
Orleans Parish, the gap is half as much today 
as it was in 1980. I expect a similar 
increase in black •registration rates in 
Orleans Parish occurred in late 1988 due to 
the impetus provided by the presidential 
campaign. 



- 44 - 

The gap between black and white voter 
registration rates in Jefferson Parish is 
deviant from the pattern in the other three 
parishes. The black population in Jefferson 
Parish is dispersed throughout the parish, 
with some population concentrations in Gretna 
and Marrero on the west bank and Kenner on 
the east bank. This dispersal may serve to 
hamper efforts to mobilize black voters to 
register, even though the Registrar of Voters 
in Jefferson Parish has for many years had an 
active program of field registration. 

Def. Ex. 2, pp. 43-45 (table omitted). 

Thus, in one of the four parishes in the 

First Supreme Court District, black registration is 

numerically greater than whites and in two parishes 

blacks are registered at a higher percentage than 

white. Therefore, it cannot be said that historical 

discrimination is keeping blacks from registering 

today. 

The plaintiffs also disagreed with the trial 

court's finding that "there is no suggestion or record 

evidence of racial overtones or appeals in judicial or 

other elections." Opinion, R.E. 37. No evidence was 

adduced that any white opponents made racial appeals, 

published side-by-side photos, or the like. See, 

Houston V. Haley, 859 F.2d 341, 347 (5th Cir. 1988), 

vacated on other grounds 869 F.2d 807 (5th Cir. 1989). 

The only testimony was self-serving testimony by 



- 45 - 

witnesses who said they were advised not to make it 

known they were black. For example, Melvin Zeno 

testified that some people advised him not to indicate 

he was black, although he was running for office to 

replace a deceased incumbent black judge who had been 

elected by the voters of that district. Transcript, 

pp. 7. In arguing that the blacks have not enjoyed 

electoral success, the plaintiffs stated (p. 48) that 

the trial court only looked at elections in which black 

candidates ran unopposed, an assertion clearly belied 

by some of the election data supplied by the plaintiffs 

and by the United States, some of which involved blacks 

winning contested elections. See, e.g., U.S. Ex. 16. 

Finally, the plaintiffs contend that the 

trial court made no findings on the "tenuousness" of 

the policy underlying maintenance of the First Supreme 

Court District as a two-justice district. In fact, the 

trial court analyzed the history of the policy at 

length, finding 

that the creation of the present First 
Supreme Court districting scheme was not 
devised for discriminatory purposes. The 
district was created because the parishes of 
Orleans, St. Bernard, Plaquemines, and 
Jefferson were considered an inseparable 
metropolitan or quasi-metropolitan area. 



- 46 - 

Opinion, R.E. 27. The tradition of a two-justice 

district for the Orleans area has continued for well 

over a hundred years and was supported by the black 

delegates to the 1973 Louisiana Constitutional 

Convention. 



• 

- 47 - 

CONCLUSION 

The voters in Louisiana have been electing 

two Justices from the First Supreme Court District for 

more than one hundred years. When presented with an 

opportunity to split this district, the Louisiana 

Constitutional Convention of 1973, including a majority 

of its black delegates, chose to keep this two-Justice 

district. The United States Department of Justice 

precleared the Constitution including the two-Justice 

district, and the voters in Louisiana approved the 

Constitution with this provision. Last Fall the voters 

of Louisiana again overwhelmingly reaffirmed that they 

prefer the two-Justice district. 

The trial court was not "clearly erroneous" 

in concluding that the plaintiffs have not met their 

burden of proof to show that the blacks are 

sufficiently large and geographically compact to 

constitute a majority in a single-member district. 

Their proposed districts violate the equal population 

requirements for redistricting under the Voting Rights 

Act and for reapportionment. Further, they seek to 



- 48 - 

make a one-parish district or a split-parish district, 

both in violation of long-standing Louisiana practice. 

The trial court was also not "clearly 

erroneous" in concluding that the plaintiffs failed to 

demonstrate sufficient cohesion or that the white bloc 

votes to deny victory to black candidates of choice. 

Just as the judiciary is different from the other 

branches of government, judicial elections are 

different and cannot be compared to high visibility 

races. Elections for the First Supreme Court District 

demonstrate that the black candidates who ran were not 

supported significantly by the blacks. Further, in the 

most recent elections blacks supported the winning 

candidate three times, twice in larger percentages than 

did the white voters. Other judicial elections show 

that black-supported candidates have won a majority of 

the elections. Substantial cross-over by whites has 

elected black judicial and non-judicial candidates, and 

substantial cross-over by blacks has elected white 

judicial and non-judicial candidates. 

Finally, while the other Senate Report 

factors cannot in and of themselves demonstrate a 



- 49 - 

Voting Rights Act violation, the trial court correctly 

analyzed these factors. 

All of the above and foregoing is thus 

respectfully submitted. 

March 1st, 1990. 

RT G. PUGH 
Fed. I.D. No. 3336 

LA. Bar Roll No. 10897 
Counsel of Record 
ROBERT G. PUGH, JR. 
Fed. I.D. No. 3337 

LA. Bar Roll No. 10896 
PUGH and PUGH 

Suite 2100 Commercial National Tower 
333 Texas Street 

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

M. TRUMAN WOODWARD, JR. 
LA. Bar Roll No. 13676 
909 Poydras Street 
Suite 2300 
New Orleans, LA 70130 
(504) 569-7100 

A. R. CHRISTOVICH 
La. Bar Roll No. 4114 
2300 Pan American Life Center 
601 Poydras Street 
New Orleans, LA 70130 
(504) 561-5700 

MOISE W. DENNERY 
LA. Bar Roll No. 4873 
601 Poydras Street 

New Orleans, LA 70130 
(504) 586-1241 

SPECIAL ASSISTANT ATTORNEYS GENERAL 



• 1 • 

CERTIFICATE 

I HEREBY CERTIFY that the foregoing Brief on 

Behalf of the Defendants-Appellees has this day been 

served upon the following counsel of record by 

depositing the same in the United States Mail, postage 

prepaid, properly addressed: 

The Non-Governmental Plaintiffs: 

Ronald Chisom 
Marie Bookman 
Walter Willard 
Marc Morial 
Henry Dillon, III 
Louisiana Voter Registration/Education 

Crusade, a non-profit corporation 

Counsel for the Non-Governmental Plaintiffs: 

Julius L. Chambers) 
Judith Reed NAACP Legal Defense 
Sherrilyn A. Ifill) & Educational Fund 

99 Hudson Street 
16th Floor 
New York, New York 10013 

Pamela S. Karlan 
University of Virginia 
School of Law 
Charlottesville, VA 22901 

C. Lani McGuinier 
University of Pennsylvania 

School of Law 
3400 Chestnut Street 
Philadalphia, Pennsylvania 19104-6204 



4 

• 

William P. Quigley 
Fulton Place, Suite 119 
901 Convention Center Boulevard 
New Orleans, Louisiana 70130 

Ronald L. Wilson 
Richards Building, Suite 310 
837 Gravier Street 
New Orleans, Louisiana 70112 

Roy Rodney 
McGlinchey, Stafford, Mintz, 
Cellini & Lang 

643 Magazine Street 
New Orleans, Louisiana 70130 

The Governmental Plaintiff: 

United States of America 

Counsel for the Governmental Plaintiff: 

James P. Turner 
Jessica Dunsay Silver 
Irving Gunnstein 
Attorneys 
Department of Justice 
P. 0. Box 66078 
Washington, D.C. 20530 

John Voltz 
United States Attorney 
Suite 210 
500 Camp Street 
New Orleans, Louisiana 70130 

A Defendant-Intervenor: 

Honorable Pascal F. Calogero, Jr. 

Counsel for Defendant-Intervenor: 

George M. Strickler, Jr. 
LeBlanc, Strickler, Woolhandler 

1419 Richards Building 
New Orleans, Louisiana 70112 
Moon Landrieu 
4301 S. Prieur Street 
New Orleans, Louisiana 70125 



A Defendant-Intervenor: 

Honorable Walter F. Marcus, Jr. 

Counsel for Defendant-Intervenor: 

Peter J. Butler 
Sessions, Fishman, Boisfontaine, 
Nathan, Winn, Butler, Barkley 

Suite 3500 
201 St. Charles Avenue 
New Orleans, Louisiana 70170 

The Amicus Curiae: 

Lawyers' Committee for Civil Rights 
Under Law 

Counsel for Amicus Curiae: 

David S. Tatel 
Robert F. Mullen 
Norman Redlich 
Barbara R. Arnwine 
Frank R. Parker 
Brenda Wright 
Robert B. McDuff 
Lawyers' Committee for Civil Rights 

Under Law 
1400 Eye Street, N.W. 
Suite 400 
Washington, D.C. 20005 

The Amicus Curiae: 

Supreme Court Justice for Orleans, Inc. 

Counsel for Amicus Curiae: 

Darleen M. Jacobs 
823 St. Louis Street 
New Orleans, Louisiana 70112 



All parties required to be served have been served. 

Shreveport, Caddo Parish, Louisiana, this the 

1st day of March, 1990. 

Pugh, 
Of Counsel 



U.S. Departmllof Justice 

Civil Rights Division 

JPT:IG:pad 
DJ 166-32-63 

Gilbert F. Ganucheau, Clerk 
United States Court of Appeals 

for the Fifth Circuit 
600 Camp Street, Room 102 
New Orleans, Louisiana 70130 

Appellate Section' 

P.O. Box 66078 

Washington, D.C. 20035-6078 

March 9, 1990 

Re: Chisom & U.S. V. Roemer, No. 89-3654  

Dear Mr. Ganucheau: 

This is to confirm that because the United States has not 
•yet received a copy of defendants' brief, we have been given an 
extension until March 23, 1990, to file our reply. 

Sincerely, 

James P. Turner 
Acting Assistant Attorney General 

Civil Rights Division 

By: 

cc: All counsel 

Irving Gornstein 
Attorney 

Appellate Section