United States v. Roemer Petition for Writ of Certiorari

    No.

In %  &nprmv (Emtrt nt %  llnxUb States
Oc to ber  T e r m , 1990

U n it e d  St a t e s  of  A m e r ic a , p e t it io n e r

v.
C h a r l e s  E . R o e m e r , e t  a l .

PETITION FOR A W RIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS  

FOR TH E FIFTH CIRCUIT

Kenneth  W . Starr 
Solicitor General

John  R. Dunne 
Assistant Attorney General

John G. Roberts, Jr.
Deputy Solicitor General

Roger Clegg
Deputy Assistant Attorney General

Paul J. Larkin , Jr.
Assistant to the Solicitor General

Jessica Dunsay Silver 
Mark L. Gross 

Attorneys
Department of Justice 
Washington, D.C. 20530 
(202) 514-2217



QUESTION PRESENTED

Whether the results test o f Section 2 of the Voting 
Rights Act of 1965, 42 U.S.C. 1973, applies to the 
election of state court judges.

(i)



n

PARTIES TO THE PROCEEDINGS

In addition to the parties listed in the caption, the 
following were parties in the courts below: Ronald 
Chisom; Marie Bookman; Walter W illard; Marc 
Morial; Henry Dillon III; the Louisiana Voter 
Registration/Education Crusade; Edwin Edwards, 
in his capacity as Governor of the State o f Louisi­
ana; W, Fox McKeithen, in his capacity as Secretary 
of State of the State o f Louisiana; Jerry M. Fowler, 
in his capacity as Commissioner of Elections of the 
State o f Louisiana; Pascal F. Calogero, Jr.; and Wal­
ter F. Marcus, Jr.



TABLE OF CONTENTS
Page

Opinions below .............................................................................  1
Jurisdiction..................................................................................  2
Statutory provision involved ................................................  2
Statement.......................................................................................  3
Reasons for granting the petition...........................  8

Conclusion.....................................................................................  14

TABLE OF AUTHORITIES
Cases:

Allen v. State Bd. of Elections, 393 U.S. 544
(1969) ................................................................................ 10

Brooks V. Georgia State Bd. of Elections, 111
S. Ct. 13 (1 9 9 0 )..........................................................  12

Chisom v. Edwards, 839 F.2d 1056 (5th Cir.
1 9 8 8 ) ................................................................................ 4, 5

Chisom v. Edwards, 659 F. Supp. 183 (E.D. La.
1987), rev’d, 853 F.2d 1186 (5th Cir.), cert, de­
nied sub nom. Roemer v. Chisom, 488 U.S. 955
(1988) ...............................................................................  6

City of Mobile V. Bolden, 446 U.S. 55 (1980)........  5 ,11
Haith v. Martin, 618 F. Supp. 410 (E.D.N.C.

1985), aff’d mem., 477 U.S. 901 (1986)................  5, 12
League of United Latin American Citizens Coun­

cil No. UU3J+ v. Clements, 914 F.2d 620 (5th Cir.
1990), petition for cert, pending, No. 90-813......6, 7, 8,

12,13
League of United Latin American Citizens Council 

No. UU3U V. Mattox, 902 F.2d 293 (5th Cir.
1990)..........................   2

Mallory V. Eyrich, 839 F.2d 275 (6th Cir. 1988).......  9
Martin V. Haith, 477 U.S. 901 (1986) ... .....................  12
SCLC V. Siegelman, 714 F. Supp. 511 (M.D. Ala.

1989) ................................................................................... 9
SCLC V. Siegelman, No. 88-D-462-N (M.D. Ala.

Dec. 5, 1990) ................................................................  9

(III)



IV

Cases— Continued: Page

South Carolina v. Katzenbach, 383 U.S. 301
(1 9 6 6 )...............................................................................  10

Thornburg v. Gingles, 478 U.S. 30 (1986) ................  6, 11
Wells v. Edwards, 347 F. Supp. 453 (M.D. La.

1972), aff’d mem., 409 U.S. 1095 (1973)........ . 7
White v. Reg ester, 412 U.S. 755 (1973) ..................... 11
Williams v. State Bd. of Elections, 696 F. Supp.

1563 (N.D. 111. 1988).................................................. 9

Constitution, statutes, and regulation:
U.S. Const.:

Amend. X IV  (Equal Protection Clause)...........  3, 4
Amend. X V .................................................................. 3, 4

Voting Rights Act of 1965, 42 U.S.C. 1971 et seq. :
§ 2, 42 U.S.C. 1973 .................................................... passim
§ 2 (a ), 42 U.S.C. 1973(a).......................................  2 ,11
§ 2 (b ), 42 U.S.C. 1973 (b ) ................ .................. 2, 6, 8, 11
§ 5, 42 U.S.C. 1973c........................................5, 7, 8, 10, 12
§ 1 4 (c )(1 ) , 42 U.S.C. 19731(c)(1) (1976)...... 10
§ 14(c) (1 ), 42 U.S.C. 1973Z(c) (1) ................. . 4, 7

28 C.F.R. 51.55(b) (2) ...................................................  10

Miscellaneous:

Extension of the Voting Rights A ct: Hearings Be­
fore the Subcomm. on Civil and Constitutional
Rights of the House Comm, on the Judiciary,
97th Cong., 1st Sess. (1 9 8 1 )....................................  12

The American Bench (Mr. Hough 4th ed. 1987-
1988) .................................................................................  9

Voting Rights A ct: Hearings on S. 53, S. 1761,
S. 1975, S. 1992, and H.R. 3112 Before the Sub­
comm. on the Constitution of the Senate Comm, 
on the Judiciary, 97th Cong., 2d Sess. (1982).... 12



3n %  Brtjmw (Emtrt rrf %
O ctober  T e r m , 1990

No.
U n it e d  St a t e s  of  A m e r ic a , p e t it io n e r

v.
C h a r l e s  E . R o e m e r , e t  a l .

PETITION FOR A  W RIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS  

FOR THE FIFTH CIRCUIT

The Solicitor General, on behalf of the United 
States, petitions for a writ o f certiorari to review the 
judgment o f the United States Court o f Appeals for 
the Fifth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (90-757 Pet. 
App. la -3 a )] is reported at 917 F.2d 187. The opin­
ion of the district court (excerpted at Pet. App. 4a- 
64a) is not reported. An earlier opinion of the court 
of appeals is reported at 839 F.2d 1056. An earlier 
opinion o f the district court is reported at 659 F. 
Supp. 183.

1 The petition appendix in No. 90-757 contains the mate­
rials required by this Court’s Rule 14.1 (k ). Unless otherwise 
noted, we will hereafter use the term “Pet. App.” to refer 
to the petition appendix in No. 90-757.

(1 )



2

The panel opinion of the court of appeals in the 
related case of League of United Latin American 
Citizens Council No. UU%U v. Mattox is reported at 
902 F.2d 293. The en banc decision of the court of 
appeals in that case is reported at 914 F.2d 620 and 
is reprinted in the appendix to the petition (at la - 
182a) in No. 90-813.

JURISDICTION

The judgment of the court o f appeals was entered 
on November 2, 1990. The jurisdiction of this Court 
is invoked pursuant to 28 U.S.C. 1254(1).

STATUTORY PROVISION INVOLVED

Section 2 of the Voting Rights Act of 1965, 42 
U.S.C. 1973, provides as follows:

(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 de­
nial 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 guarantee 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 sec­
tion is established if, based on the totality of cir­
cumstances, it is shown that the political proc­
esses 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 subsection (a ) of this sec­
tion in that its members have less opportunity 
than other members of the electorate to partici­
pate in the political process and to elect repre­
sentatives of their choice. The extent to which 
members of a protected class have been elected



3

to office in the State or political subdivision is one 
circumstance which may be considered: Provided, 
That nothing in this section establishes a right 
to have members of a protected class elected in 
numbers equal to their proportion in the popu­
lation.

STATEM ENT

1. Louisiana elects its seven justices to the state 
supreme court from six judicial districts for ten-year 
terms. The First District, which includes Orleans, 
St. Bernard, Plaquemines, and Jefferson Parishes, 
elects two justices at-large. Each of the other five 
districts elects one justice. Pet. App. 7a-8a.

In September 1986, plaintiffs Ronald Chisom et 
al., black registered voters in Orleans Parish, Louisi­
ana, filed a complaint, alleging that the system for 
electing two state supreme court justices from the 
First Judicial District in at-large elections had the 
purpose and the effect o f diluting black voting 
strength, in violation of Section 2 of the Voting 
Rights Act of 1965, 42 U.S.C. 1973, the Equal Pro­
tection Clause of the Fourteenth Amendment, and 
the Fifteenth Amendment.2 The plaintiffs alleged 
that the elections in the First District, in which a 
majority of the population and registered voters are 
white, had been marked by racial bloc voting and 
other effects of past official discrimination; that few 
blacks had been elected to public offices in the dis­
trict; that there was no justifiable basis for singling 
out the First District for multi-member elections; 
and that the First District could be divided into two 
districts, each of which, like the remaining judicial 
districts, would elect one justice. The plaintiffs ar­

2 The plaintiffs have filed a petition for writ of certiorari 
in this case as well, No. 90-757.



4

gued that an appropriate division along parish lines 
would produce one district— Orleans Parish— in 
which a majority of the population and registered 
voters would be black. Pet. App. 4a-6a.

2. The district court dismissed the complaint, hold­
ing that Section 2 o f the Voting Rights Act of 1965 
did not apply to judicial elections. Chisom v. Ed­
wards, 659 F. Supp. 183 (E.D. La. 1987). The court 
found that Section 2, by its terms, is violated only 
when minority voters prove that they lack an equal 
opportunity “ to elect representatives of their choice.”  
Section 2 therefore does not apply to judicial elec­
tions, the court held, since judges are not “ represen­
tatives.”  659 F. Supp. at 185-187.3

3. Plaintiffs appealed and the court of appeals re­
versed, holding that Section 2 applies to judicial elec­
tions. Chisom v. Edwards, 839 F.2d 1056 (5th Cir. 
1988) (Chisom I). The court stated that the orig­
inal language of Section 2, enacted in 1965, prohib­
ited discrimination in any “ voting qualification or 
prerequisite to voting, or standard, practice or proce­
dure,”  and that Section 1 4 (c ) (1 )  of the Act, 42 
U.S.C. 1 9 7 3 £ (c )(l) , defined voting as applying to 
“ any primary, special, or general election * * * with 
respect to candidates for public or party office and 
propositions for which votes are received in an elec­
tion,”  demonstrating Congress’s intent to prohibit a 
broad range of discriminatory electoral practices.

3 The district court also dismissed the plaintiffs’ claims 
under the Fourteenth and Fifteenth Amendments, on the 
ground that the plaintiffs had not adequately alleged intent to 
discriminate. 659 F. Supp. at 187-189. The court of appeals 
reversed and reinstated those claims, Chisom v. Edwards, 839 
F.2d 1056, 1064-1065 (5th Cir. 1988), but after trial the dis­
trict court held that the plaintiffs had not proved intentional 
discrimination, Pet. App. 63a-64a. Those claims are no longer 
at issue.



5

839 F.2cl at 1059-1060. Because judges are “ candi­
dates for public or party office,”  the court held that 
the 1982 amendments to Section 2, which added the 
term “ representatives”  on which the district court 
relied, still applied to judicial elections. The 1982 
amendments, the court concluded, did not limit the 
Act’s coverage, but instead enacted the “ results” test 
that this Court had rejected in City of Mobile v. Bol­
den, 446 U.S. 55 (1980). 839 F.2d at 1059-1061. 
The court of appeals rejected the district court’s re­
liance on the line o f “ one person, one vote”  cases 
holding that judges are not representatives, on the 
ground that cases involving racial discrimination 
are not governed by the same considerations as cases 
involving nonracial reapportionment. Id. at 1060- 
1061.

The court also found relevant some secondary 
sources of congressional intent. For example, the 
court saw some indication in the legislative history 
of the 1982 Voting Rights Act amendments that Con­
gress understood Section 2 to apply to judicial elec­
tions. 839 F.2d at 1061-1063. The court found rele­
vant the holding in Haith v. Martin, 618 F. Supp. 
410 (E.D.N.C. 1985), summarily aff’d mem., 477 
U.S. 901 (1986), that Section 5 of the Voting Rights 
Act of 1965, 42 U.S.C. 1973c, which requires pre­
clearance of changes in electoral procedures in some 
States and which has coverage language nearly iden­
tical to that o f Section 2, applies to judicial elections. 
839 F.2d at 1063-1064. Finally, the court noted that 
the Attorney General has consistently interpreted the 
Voting Rights Act as covering judicial elections. Id. 
at 1064.

The defendants sought review in this Court, which 
denied certiorari sub. nom. Roemer v. Chisom, 488 
U.S. 955 (1988).



6

4. A fter trial,4 the district court held that the 
plaintiffs had failed to prove a violation of Section 2 
under the standards set forth in Thornburg v. Gingles, 
478 U.S. 30 (1986). Specifically, the court held that 
plaintiffs had failed to prove that black voters are 
geographically compact or politically cohesive, or that 
there was significant racial bloc voting. Pet. App. 
16a-62a.

5. The plaintiffs and the United States appealed, 
claiming that the district court’s factual findings 
were clearly erroneous. Before the appeal was de­
cided, however, the Fifth Circuit, sitting en banc, 
decided League of United Latin American Citizens 
Council No. M3U (LULAC) v. Clements, 914 F.2d 
620 (1990) (reprinted at 90-813 Pet. App. la-182a). 
The plaintiffs in LULAC alleged that the at-large 
election o f trial judges in nine Texas counties diluted 
the ability of minority populations in each county to 
elect candidates o f their choice, in violation of Sec­
tion 2. In LULAC, the en banc Fifth Circuit, by a 
7-6 vote, held that the Section 2 vote dilution test 
does not apply to the election of judges, and expressly 
overruled Chisom I.

The majority held that while Section 2 generally 
applies to judicial elections the vote dilution test of 
Section 2 (b ) does not, since judges are not “ repre­
sentatives” under Section 2 (b ) or as a general mat­
ter. LULAC, 914 F.2d at 625-627. As support for 
its interpretation, the majority pointed out that the 
concept of minority vote dilution was modeled on the 
vote dilution standards developed in “ one-person, one- 
vote”  cases, id. at 627-628, and that by 1982 at least

4 The United States intervened in the district court after 
the remand for trial. The United States had participated in 
the earlier stages of the litigation as an amicus curiae.



7

15 federal court decisions, including a decision by 
this Court— Wells v. Edwards, 347 F. Supp. 453 
(M.D. La. 1972) (three-judge court), summarily 
aff’d mem., 409 U.S. 1095 (1973)— had ruled that 
“ the judicial office is not a representative one, most 
often in the context of deciding whether the one- 
man, one-vote rubric applied to judicial elections,” 
914 F.2d at 626; id. at 626 n.9. Applying the canon 
of construction that Congress is presumed to be aware 
of and endorse “ the uniform construction”  placed on 
a term, the majority determined that Congress used 
the term “ representative”  in order to apply the new 
results test of Section 2 to elections for representa­
tive, political offices but not to vote dilution claims 
in judicial contests. Id. at 628-629. The majority 
found unpersuasive the fact that the definitional pro­
vision of the Act, 42 U.S.C. 1 9 7 3 Z (c )(l), defined 
“ voting” by reference to “ candidates for public or 
party office,”  because the term “ representative” in 
Section 2 was more specific. LULAC, 914 F.2d at 
629. Because Section 5 of the Voting Rights Act does 
not use the word “ representatives,”  the majority also 
found irrelevant the fact that Section 5 applies to 
judicial elections. Ibid.

Six members of the en banc court, in three separate 
opinions, concluded that the dilution test of Section 2 
applies to judicial elections. Judge Higginbotham, 
joined by three other judges, concluded that the 
term “ representatives”  encompasses elected judges. 
LULAC, 914 F.2d at 635-645. He nevertheless con­
cluded that the at-large election o f trial judges in 
Texas does not violate Section 2 since each trial 
judge, like each governor, occupies a so-called “ single­
person office”  whose electorate cannot be further sub­
divided. In such instances, he said, electing all trial



8

judges on an at-large basis does not dilute minority 
voting strength. Id. at 645-651. Concurring spe­
cially, Chief Judge Clark said that he agreed with 
Judge Higginbotham, adding that vote dilution anal­
ysis might be appropriate when a State elects its 
judges from single-member districts. Id. at 631-634. 
Judge Johnson dissented. In his view, the Section 
2 (b ) vote dilution test applies to judicial elections, 
and the “ single-person office”  exception did not apply 
in the LULAC setting, because at the trial court 
level there were multiple officeholders. 914 F.2d at 
651-671.

6. Thereafter, the court of appeals issued a per 
curiam opinion in this case. Relying on LULAC, the 
court remanded this case to the district court with 
directions to dismiss the Voting Rights Act claims 
for failure to state a claim upon which relief could be 
granted. Pet. App. la-3a.

REASONS FOR GRANTING THE PETITION

The court of appeals has erroneously decided a 
question of considerable public importance in a man­
ner that expressly conflicts with a decision of an­
other court of appeals. By holding that the vote di­
lution test of Section 2 (b ) of the Voting Rights Act 
of 1965 does not apply to the election of judges, the 
court of appeals has erroneously exempted a signifi­
cant category of elections from the broadly worded 
text o f that law. By single-mindedly focusing on the 
term “ representatives,”  the court of appeals con­
strued Section 2 in a manner that is in tension with 
this Court’s interpretation of Section 5 o f the Act, 
and contrary to the broad remedial purposes under­
lying the 1982 amendments to Section 2. Moreover, 
the question presented will recur with regularity 
since a majority of the States elect at least some



9

judges at the trial or appellate levels. Accordingly, 
review by this Court is clearly warranted.

1. The Fifth Circuit’s decisions in this case and 
in LTJLAC directly conflict with the Sixth Circuit’s 
decision in Mallory v. Eyrich, 839 F.2d 275 (1988).5 
In Mallory, the Sixth Circuit held that the Section 2 
vote dilution test applies to the election of municipal 
judges, expressly rejecting the argument that judges 
are not “ representatives”  within the meaning of Sec­
tion 2. In fact, the Sixth Circuit’s analysis in Mal­
lory of the Section 2 question was identical to the 
Fifth Circuit’s analysis of the same issue in Chisom, 
I, which that court overuled in LULAC. Compare 
Mallory, 839 F.2d at 277-281, with Chisom I, 839 
F.2d at 1059-1064. This square conflict between the 
Fifth and Sixth Circuits warrants review by this 
Court.

2. The question presented is of sufficient national 
importance and will recur with a sufficient degree of 
regularity that review is warranted. Forty-one States 
elect some or all of their judges, see The American 
Bench (M. Hough 4th ed. 1987-1988), and suits have 
been filed in ten States alleging that the election of 
judges dilutes minority voting strength in violation 
of Section 2. 90-757 Pet. 14-15. Resolution of this 
question is therefore o f substantial interest to the 
United States, which has primary responsibility for 
enforcing Section 2. In addition, the Attorney Gen­

5 District courts in the Seventh and Eleventh Circuits have 
also held that the Section 2 vote dilution test applies to 
judicial elections. Williams v. State Bd. of Elections, 696 
F. Supp. 1563 (N.D. 111. 1988) ; SCLC v. Siegelman, 714 
F. Supp. 511 (M.D. Ala. 1989). The district court in Siegel­
man recently reaffirmed its earlier decision and noted its 
disagreement with LULAC. SCLC V. Siegelman, No. 88-D- 
462-N (Dec. 5, 1990).



10

eral is responsible under Section 5 for reviewing vot­
ing changes, and must withhold preclearance if  he 
concludes such action “ is necessary to prevent a clear 
violation of amended section 2.”  28 C.F.R. 51.55 
(b ) (2 ) .  A  decision that Section 2’s dilution stand­
ard does not apply to judicial elections thus affects 
the manner in which the government reviews pro­
posed voting changes in judicial election procedures 
under Section 5.

3. The Fifth Circuit in LULAC erred in ruling 
that the vote dilution test of Section 2 does not ap­
ply to judicial elections. Congress enacted the Vot­
ing Rights Act of 1965 in order to “ rid the country 
of racial discrimination in voting.”  South Carolina 
v. Katzenbach, 383 U.S. 301, 365 (1966). The orig­
inal text of Section 2 stated that “ [n ]o  voting quali­
fication or prerequisite to voting, or standard, prac­
tice, or procedure shall be imposed or applied by any 
State or political subdivision to deny or abridge the 
rights of any citizen of the United States to vote on 
account of race or color.”  The 1965 Act defined the 
term “ voting” as “ any primary, special, or general 
election * * * with respect to candidates for public 
or party office * * *.”  42 U.S.C. 1 9 7 3 £ (c )(l) (1976). 
That definition was sufficiently broad to encompass 
elections of any type for any office, including elec­
tions for judges. See Allen v. State Bd. of Elections, 
393 U.S. 544, 567 (1969) (Congress intended “ to 
give the Act the broadest possible scope” ). A  can­
didate who stands in a primary or in the general 
election for a position on the state supreme court 
easily fits within that definition. Thus, it is clear 
that the elections at issue here were covered by the 
original version of Section 2.

The 1982 amendments to Section 2 did not change 
that result. Congress did not amend Section 2 to



11

shorten the reach of that law; instead, Congress 
amended Section 2 in order to enact the “ results” 
test that this Court had rejected in City of Mobile v. 
Bolden, supra. See Thornburg v. Gingles, 478 U.S. 
30, 35 (1986). Congress accomplished that result by 
dividing Section 2 into two parts, adding to subsec­
tion (a ) the term “ results,”  and defining the new re­
sults test in subsection (b ). At the same time, Con­
gress did not alter that portion of the text of Section 
2 defining the reach of the law (i.e., the language re­
ferring to “ :[n]o voting qualification” , etc.). Thus, 
subsection (a ) , like its predecessor, the 1965 version 
o f the Act, encompasses elections of every stripe; 
nothing excludes judicial elections.

In reaching the contrary result, the Fifth Circuit 
relied heavily on Congress’s use of the term “ repre­
sentatives”  in subsection (b ). This was mistaken. 
Congress patterned the phrasing of the results test in 
subsection (b ) after a passage in White v. Regester, 
412 U.S. 755 (1973). White involved a challenge to 
the election of state legislators, and the relevant pas­
sage focused on whether minority voters “ had less 
opportunity than did other residents in the district 
to participate in the political processes and to elect 
legislators o f their choice.”  Id. at 766. Congress in­
corporated that principle into subsection (b ), but 
substituted the term “ representatives”  for “ legisla­
tors.”  Although use of the term “ legislators”  would 
not have included judges, the term “ representative” 
does not necessarily exclude them. Because nothing 
in the legislative history of the 1982 amendments in­
dicates that the election of judges is excluded from 
the scope of Section 2 (in fact, there is some evidence



12

that Congress knew that Section 2 applied to such 
elections6), the Court can give the term “ representa­
tive”  the natural interpretation that the facts of this 
case show to be reasonable.

The Fifth Circuit’s decisions in this case and 
LULAC create an anomaly in the application of Sec­
tions 2 and 5 of the Voting Rights Act. This Court 
has twice held that the Section 5 preclearance re­
quirements apply to judicial elections, Martin v. 
Haith, 477 U.S. 901 (1986 ); Brooks v. Georgia State 
Bd. of Elections, 111 S. Ct. 13 (1990), but the Fifth 
Circuit has now ruled that the vote dilution analysis 
of Section 2 does not apply. The Fifth Circuit’s de­
cisions lead to the “ incongruous result,”  as Judge 
Higginbotham noted in LULAC, 914 F.2d at 645, 
that a covered State cannot implement a discrimina­
tory voting procedure, but an existing discriminatory 
procedure cannot be challenged under the very law

6 The House and Senate hearings contain various refer­
ences to judicial elections, principally in the context of statis­
tics indicating the progress made by minorities under the Act 
up to 1982. See, e.g., Extension of the Voting Rights Act: 
Hearings Before the Subcomm. on Civil and Constitutional 
Rights of the House Comm, on the Judiciary, 97th Cong., 1st 
Sess. 38, 193, 239, 280, 503, 574, 804, 937, 1182, 1188, 1515, 
1535, 1745, 1839, 2647 (1981) ; and Voting Rights A ct: Hear­
ings on S. 53, S. 1761, S. 1975, S. 1992, and H.R. 3112 Before 
the Subcomm. on the Constitution of the Senate Comm, on the 
Judiciary, 97th Cong., 2d Sess. 669, 748, 788-789 (1982). The 
majority in LTJLAC dismissed the significance of these refer­
ences, 914 F.2d at 629-630, but the importance of those refer­
ences is not that they resolved the issue presented here. In­
stead, they show that some members of Congress knew in 
1982 that many state judges were elected, yet no one sug­
gested that the Act should be redrafted to exclude judicial 
elections.



13

Congress intended to be used as the vehicle to redress 
such illegality.

The majority in LULAC erred in relying on the 
line of cases holding, in the reapportionment context, 
that judges do not have a “ representative”  function. 
Section 2 did not codify the “ one-person, one-vote” 
inquiry; rather, it sought to ensure that minority 
votes are not cancelled out by means of dilutive elec­
toral systems. For that reason, there is no require­
ment that the term “ representative”  be read to ex­
clude judges.

4. As noted above, the plaintiffs in this case have 
filed a certiorari petition seeking review of the judg­
ment below, Chisom v. Roemer, No. 90-757. In addi­
tion, the plaintiffs in LULAC have also filed a certio­
rari petition seeking review of the Fifth Circuit’s 
judgment there. Houston Lawyers’ Ass’n v. Mattox, 
No. 90-813. This case involves the election of appel­
late judges on a district-by-district basis, while 
LULAC involves the at-large election o f trial judges. 
The LULAC case also involves a question not pre­
sented in this case, namely, whether the “ single 
member office”  exception applies to the election of 
Texas trial court judges. This case and LULAC, 
taken together, afford the Court an opportunity to 
consider whether Section 2 applies to judicial elec­
tions in a complete factual context. For that reason, 
we urge the Court to grant all three petitions, to con­
solidate for argument our petition in this case with 
the petition filed by the private plaintiffs in No. 90- 
757, and to set this case for oral argument in tandem 
with the petition in No. 90-813. (Petitioners in No. 
90-757 and in Houston Lawyers’ Ass’n v. Mattox,



14

No. 90-813, have also urged the Court to grant re­
view in both cases.) 7

CONCLUSION

The petition for a writ of certiorari should be 
granted. The petition in Chisom v. Roemer, No. 90- 
757, should also be granted, and it should be consoli­
dated for oral argument with this petition. In addi­
tion, the petition in Houston Lawyers’ Ass’n v. Mat­
tox, No. 90-813, should be granted, and that case 
should be heard in tandem with this case and No. 
90-757.

Respectfully submitted.

Kenneth  W . Starr
Solicitor General

John  R. Dunne
Assistant Attorney General

John  G. Roberts, Jr.
Deputy Solicitor General

Roger Clegg
Deputy Assistant Attorney General

Paul J. Larkin , Jr.
Assistant to the Solicitor General

Jessica Dunsay Silver 
Mark L. Gross 

Attorneys
December 1990

7 Petitioners in Clark v. Roemer, No. 90-898, have filed a 
petition for a writ of certiorari before judgment to the 
Fifth Circuit. That case involves trial level judges and one 
appellate district in Louisiana. That case, however, adds 
nothing to the factual scenarios presented by Chisom and 
LULAC, so separate review is not called for in that case.

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