Daniel v. Paul Brief for the United States as Amicus Curiae

    No. 90-757

In The

Supreme Court of the United States
October Term, 1990
--------------«--------------

RONALD CHISOM, MARIE BOOKMAN, WALTER WILLARD, 
MARC MORIAL, LOUISIANA VOTER REGISTRATION/EDU- 
CATION CRUSADE, and HENRY A. DILLON, III,

versus
Petitioners,

BUDDY ROEMER, in his capacity as Governor of the State of 
Louisiana; FOX McKEITHEN, in his capacity as Secretary of 
State of Louisiana; and JERRY M. FOWLER, in his capacity as 
Commissioner of Elections of the State of Louisiana,

Respondents.
--------------•--------------

Petition For A Writ Of Certiorari To The United States Court 
Of Appeals For The Fifth Circuit

--------------♦--------------
BRIEF OF RESPONDENTS IN OPPOSITION

--------------*--------------
Robert G. Pugh 

Counsel of Record 
R obert G. Pugh, Jr.

Of the Law Firm of Pugh, Pugh & Pugh 
Commercial National Tower, Suite 2100 

333 Texas Street 
Shreveport, LA 71101-5302 

(318) 227-2270
M. Truman W oodward, Jr. 
909 Poydras Street 
Suite 2300
New Orleans, LA 70130 
(504) 569-7100
A. R. Christovich 
2300 Pan American 

Life Center 
601 Poydras Street 
New Orleans, LA 70130 
(504) 561-5700

December 14 th, 1990.

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

W illiam J. Guste, Jr. 
Attorney General 
Louisiana Department 

of Justice
234 Loyola Avenue, 7th Floor 
New Orleans, LA 70112 
(504) 568-5575

COCKLE LAW BRIEF PRINTING CO., (800) 22S-6964 
OR CALL COLLECT (402) 342-2831



i

QUESTION PRESENTED

Did Congress intend the word "representatives" as 
used in the Voting Rights Act of 1965, § 2(b) as amended, 
42 U.S.C. § 1973, to include judges who are selected by a 
state judicial electoral process?



QUESTION PR E SEN TE D .....................................................  i

TABLE OF CONTENTS.........................................................  ii

TABLE OF AUTHORITIES...................................    iv

STATEMENT OF THE C A SE............................................... 1

A. The First Supreme Court District in Louisiana.. 1

B. Prior Proceedings in this Litigation ....................  3

A RG U M EN T..............................................................................  5

I. THE FIFTH  C IR C U IT  C O RREC TLY C O N ­
CLUDED THAT SECTION 2(B) OF THE VOT­
ING RIGHTS ACT DOES NOT APPLY TO THE
JU D IC IA RY........................................................................  5

A. The LULAC D ecision..................................... 5

B. The Genesis of § 2(b) of the Voting Rights
A c t ........................................  7

C. This Court has always held that Judges are
not "representatives"....................................  8

D. Other Federal Courts have held that Judges
are not "representatives"..........................  10

E. The Term "representatives" is not a...Syn­
onym for "elected o ffic ia ls "   14

F. The Fundamental Difference Between "repre­
sentatives" and Members of the Judiciary is 
Deeply Rooted in this Country's History. . .  17

ii

TABLE OF CONTENTS
Page



Ill

Page

II. IF THE ONE-MAN, ONE-VOTE REQUIREMENT 
DOES NOT APPLY TO THE JUDICIARY, THE 
CONCEPT OF MINORITY VOTE DILUTION SET 
FORTH IN § 2(B) DOES NOT APPLY TO THE 
JU D IC IA R Y ........................................................................  22

C O N C LU SIO N ..........................................................................  29

TABLE OF CONTENTS -  Continued



IV

C ases:

Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 
663 (1 9 6 2 )........................................................................... 10, 29

Brown v. Board of School Commissioners of Mobile 
County, 706 F,2d 1103 (11th Cir.), affirmed, 464 
U.S. 1005, 104 S.Ct. 520, 78 L.Ed.2d 705 (1983).........8

Buchanan v. Gilligan, 349 F. Supp. 569 (N.D. Ohio
1972).............................................................................................  14

Buchanan v. Rhodes, 249 F. Supp. 860 (N.D. Ohio 
1966), appeal dismissed, 385 U.S. 3, 87 S.Ct. 33, 17 
L.Ed.2d 3 (1966), vacated 400 F.2d 882 (6th Cir.
1968), cert, denied, 393 U.S. 839, 89 S.Ct. 118, 21 
L.Ed.2d 110 (1968)...................      13

Chandler v. Judicial Council, 398 U.S. 74, 90 S.Ct.
1648, 26 L.Ed.2d 100 (1970).............................................. 29

Chisom v. Edwards, 659 F. Supp. 183 (E.D.La. 1 9 87 ).........4

Chisom v. Edwards, 690 F. Supp. 1524 (E.D.La. 1 9 8 8 ) . . . . .  4

Chisom v. Edwards, 839 F.2d 1056 (5th Cir. 1988)..............4

Chisom v. Edwards, 850 F.2d 1051 (5th Cir. 1988)..............4

Chisom v. Edwards, 853 F.2d 1186 (5th Cir. 1988)..............4

Chisom v. Roem er,__F. S u p p .___ (E.D. La. 1989)
■ • • .......................................................................... .. 1, 2, 3, 4, 5

Chisom v. Roem er,___F. Supp. ____(E.D. La. 1 9 9 0 ).......... 5

Chisom v. Roemer, 917 F.2d 187 (5th Cir. 1 9 9 0 )...........5, 7

City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490 
64 L.Ed.2d 47 (1980)..................................7, 23, 24, 25, 26

TABLE OF AUTHORITIES
Page



V

TABLE OF AUTHORITIES -  Continued
Page

Consumer Products Safety Comm'n v. GTE Sylvania,
447 U.S. 102, 100 S.Ct. 2051, 64 L.Ed.2d 766 
(1980 )............................................................................................ 14

Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857,
95 L.Ed. 1137 (1951).............................................................. 10

Dickerson v. New Banner Institute, Inc., 460 U.S. 103,
103 S.Ct. 986, 74 L.Ed.2d 845 (1983).............................. 15

Edge v. Sumter County School District, 775 F.2d 1509
(11th Cir. 1985)............................................   8

Escondido Mut. Water Co. v. La Jolla Indians, 466 
U.S. 765, 104 S.Ct. 2105, 80 L.Ed.2d 753 ( 1 9 8 4 ) . . . .  15

Fahey v. Darigan, 405 F. Supp. 1386 (D.C.R.I. 1975) . . . .  14

Gilday v. Board of Elections of Hamilton County, 472
F.2d 214 (6th Cir. 1972).......................................................... 13

Gomez v. City of Watsonville, 863 F.2d 1407 (9th Cir.
1988), cert, d en ied ,___U.S. ____, 109 S.Ct. 1534,
103 L.Ed.2d 839 (1989)............................................................. 8

Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678,
14 L.Ed.2d 510 (1965)..........................................................  10

Holshouser v. Scott, 335 F. Supp. 928 (M.D.N.C.
1971), affirmed, 409 U.S. 807, 93 S.Ct. 43, 34 
L.Ed.2d 68 (1972)............................................................. 10, 11

Jordan v. Winter, 604 F. Supp. 807 (N.D. Miss.), 
affirmed, 469 U.S. 1002, 105 S.Ct. 416, 83 L.Ed.2d 
343 (1984)....................................................................................... 9

Kail v. Rockefeller, 275 F. Supp. 937 (E.D.N.Y. 1967) . . . .  13

Ketchum v. Byrne, 740 F.2d 1398 (7th Cir. 1984), 
cert, denied, 471 U.S. 1135, 105 S.Ct. 2673, 86 
L.Ed.2d 692 (1985)......................................................................8



vi

Latin American Citizens Council #4434 v. Clements,
902 F.2d 293 (5th Cir. 1990).................................................6

Latin American Citizens Council #4434 v. Clements,
914 F.2d 620 (5th Cir. 1990) (en banc)................. passim

New York State Association of Trial Lawyers v. Rock­
efeller, 267 F. Supp. 148 (S.D.N.Y. 1967).......................  12

Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12
L.Ed.2d 506 (1964)..........................................  10, 12, 23, 29

Roemer v. Chisom, 488 U.S. 955, 109 S.Ct. 390, 102 
L.Ed.2d 379 (1988)................................................................... . 4

Romiti v. Kerner, 256 F. Supp. 35 (N.D. 111. 1966)......... 14

Sagan v. Commonwealth o f Pennsylvania, 542 F.
Supp. 880 (W.D. Pa. 1 9 8 2 )...................................................  14

Stokes v. Fortson, 234 F. Supp. 575 (N.D. Ga. 1964) .11, 29

Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 
L.Ed.2d 25 (1 9 8 6 ).............................7, 23, 24, 27, 28

United States v. Marengo County Commission, 731 
F,2d 1546 (11th Cir.), appeal dismissed & cert, 
denied, 469 U.S. 976, 105 S.Ct. 375, 83 L.Ed.2d 
311 (1984)................................................   8

Velasquez v. City of Abilene, 725 F.2d 1017 (5th Cir.
1984)...........................................................................   8

Wells v. Edwards, 347 F. Supp. 453 (M.D. La. 1972) 
..................................................................................... 9, 23, 26, 27

Wells v. Edwards, 409 U.S. 1095, 93 S.Ct. 904, 34 
L.Ed.2d 679 (1973).................................. 9, 22, 23, 26, 27

Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 
L.Ed.2d 363 (1971)

TABLE OF AUTHORITIES -  Continued
Page

28



White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 
L.Ed.2d 314 (1973).................................................................... 7

Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) . . . .  27

C onstitutional and S tatutory P rovisions:

United States Constitution Fourteenth Amend­
ment ...................................................................... .................. 1, 25

United States Constitution Fifteenth A m endm ent. .1, 25

28 U.S.C. § 1 3 3 1 . . . . ......................................................................1

28 U.S.C. § 1343...............................................................................1

28 U.S.C. § 2201 ...............................................................................1

28 U.S.C. § 2202 ...............................................................................1

42 U.S.C. § 1973 [Voting Rights A ct)...............................passim

42 U.S.C. § 1983...............................................  1

1879 Louisiana Constitution Article 8 2 ................................ 2

1898 Louisiana Constitution Article 8 7 ...............   2

1913 Louisiana Constitution Article 8 7 ................................ 2

1921 Louisiana Constitution Article 7 § 9 ............................2

1974 Louisiana Constitution Article 5 § 4 ................... 2, 3

vii

TABLE OF AUTHORITIES -  Continued
Page



viii

R ules:

Fed.R.Civ.P. 1 2 (b )(6 ) ......................................................................3

TABLE OF AUTHORITIES -  Continued
Page

L egislative H istory:

S.Rep. No. 417, 97th Cong. 2d Sess. reprinted in 
1982 U.S. Code Cong. & Admin. News at 177,
196..................................................................................................23

B ooks:

A. Bickel, The Supreme Court and the Idea of Progress
(1978 Yale University Press paperback edition) .20, 21

J. Ely, Democracy and Distrust (1980 Harvard Uni­
versity Press hardbound edition)....................................20

L. Friedman, A History of American Law (Simon &
Schuster 1973 paperback e d itio n ).................................. 20

E. Hickok, Judicial Selection: The Political Roots 
of Advice and Consent in Judicial Selection:
Merit, Ideology and Politics (National Legal Cen­
ter for the Public Interest 1990)......................................  17

G. W hite, The American Judicial Tradition (1978
Oxford University Press edition).............17, 18, 19, 20

N ew spapers:

Baton Rouge State-Times, October 9th, 1 9 8 9 . .............3

New Orleans Times-Picayune, October 8th, 1989............... 3



STATEMENT OF THE CASE

Petitioners brought this suit in the United States Dis­
trict Court for the Eastern District of Louisiana on behalf 
of all black registered voters in Orleans Parish, approx­
imately 135,000 people. The suit challenged the at-large 
election of two Justices to the Louisiana Supreme Court 
from the parishes of Orleans, St. Bernard, Plaquemines 
and Jefferson (the First Supreme Court District) as being 
in violation of the 1965 Voting Rights Act, as amended, 
because of alleged dilution of the voting strength of the 
Petitioners. Jurisdiction was based on 28 U.S.C. §§ 1331 
and 1343 as well as 42 U.S.C. § 1973. The action sought 
declaratory and injunctive relief, 42 U.S.C. §§ 1973 and 
1983. Petitioners also sought relief under 28 U.S.C. 
§§ 2201 and 2202 and the Fourteenth and Fifteenth 
Amendments to the United States Constitution. Peti­
tioners sought the 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 where blacks constituted a 
majority of the registered voters.

A. The First Supreme Court District in Louisiana.

The Louisiana Supreme Court is the highest court in 
the State of Louisiana. The Court is composed of seven 
Justices, elected from six Supreme Court districts for a
term of ten years. Chisom v. Roemer,___F. S u p p .____, Slip
Opinion 3 (E.D. La. 1989) (hereinafter cited as "Slip Op. 
#"). No parish lines are cut by any of the election districts 
for the Supreme Court. Slip Op. 4.

1



2

The First Supreme Court District, consisting of the 
city of New Orleans and its surrounding environs,1 has 
been the only district that has elected two Justices since 
adoption of the 1879 Louisiana Constitution more than 
110 years ago. Slip Op. 16; see Louisiana 1879 Constitution 
Article 82; Louisiana 1898 Constitution Article 87; Louisi­
ana 1913 Constitution Article 87; Louisiana 1921 Consti­
tution Article 7, § 9; and Louisiana 1974 Constitution 
Article 5, § 4.

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. 
Slip Op. 17. 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, eleven [sic -  should be 
ten] against, and one absent. Slip Op. 18. The second 
failed 47-67, with seven blacks voting for the amendment, 
four against, and one absent. Slip Op. 18. 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. Slip 
Op. 19. This amendment was defeated 50-63, with five 
blacks voting for the amendment and seven against. Slip 
Op. 19. The final districting plan, leaving the First 
Supreme Court District with two Justices, was adopted 
103-9, with eight blacks voting for the plan, one against,

1 The parishes in the First Supreme Court District include 
Orleans, St. Bernard, Plaquemines, and Jefferson Parishes.



3

and two absent. Slip Op. 19. Four of the blacks voting for 
the plan were delegates from Orleans Parish.

The proposed Constitution was approved by the 
United States Department of Justice and ratified by the 
voters of Louisiana on April 20th, 1974. Slip Op. 19. 
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. Slip Op. 19. A proposed constitutional 
amendment to split the district so that Orleans Parish 
would constitute 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 am endm ent. New Orleans Times-Picayune, 
October 8th, 1989.2

B. Prior Proceedings in this Litigation.

After the complaint was filed, respondents filed a 
Fed.R.Civ.P. 12(b)(6) motion to dismiss for the failure of 
the petitioners to state a claim upon which relief could be

2 Given that Orleans Parish is majority black in both popu­
lation (55.2%) and registered voters (53.6%), and given that the 
amendment was defeated three to one in Orleans Parish, it is 
fair to surmise that blacks in Orleans Parish opposed the 
amendment which would bring about the very same remedy 
sought by petitioners herein.



4

granted. The district court agreed with respondents' con­
tention that it was not the intention of Congress to apply 
the word "representatives" in Section 2 of the Voting 
Rights Act, as amended, to embrace members of the 
judiciary. Chisom v. Edwards, 659 F. Supp. 183 (E.D. La. 
1987). The district court drew a distinction between the 
impartial functions performed by the judiciary without a 
constituency and the functions performed by representa­
tives who are not expected to be impartial but rather 
reflective of the needs and wishes of their constituency. 
659 F. Supp. at 186.

The petitioners appealed to the United States Court 
of Appeals for the Fifth Circuit, which reversed the judg­
ment of the district court and remanded the case because 
the Court concluded that Section 2 does apply to the 
election of state court judges. Chisom v. Edwards, 839 F.2d 
1056 (5th Cir.), rehearing and rehearing en banc denied, cert, 
denied sub nom. Roemer v. Chisom, 488 U.S. 955, 109 S.Ct. 
390, 102 L.Ed.2d 379 (1988).

The petitioners then successfully moved to enjoin the 
election of a Justice from the First Supreme Court District 
during the regularly scheduled Fall, 1988 election. Chisom 
v. Edwards, 690 F. Supp. 1524 (E.D. La. 1988). The Fifth 
Circuit stayed the injunction, 850 F.2d 1051 (5th Cir. 1988), 
and ultimately reversed the injunction, 853 F.2d 1186 (5th 
Cir. 1988).

After a trial on the merits, the district court dis­
missed petitioners' statutory and constitutional claims.
Chisom v. Roemer, ___ F. Supp. ___ (E.D. La. 1989). The
court concluded:



5

that the petitioners had not proven that the use 
of a multi-member electoral structure operates 
to minimize or cancel out 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 prefer­
red candidates, often times joining forces with a 
significant portion of the white electorate, and 
thereby creating significant crossover voting.

Slip Op. at 40-41. The petitioners appealed the Voting 
Rights Act decision.3 The Fifth Circuit remanded for dis­
missal for failure to state a claim upon which relief may 
be granted. 917 F.2d 187 (5th Cir. 1990). On remand the
case was dismissed. ___ F. Supp. ___ (E.D. La. 1990).
Thereafter, this Petition was filed.

--------------- ♦ — ------ — —

ARGUM ENT

I. THE FIFTH CIRCU IT CORRECTLY CONCLUDED 
THAT SECTIO N  2(b) OF THE VO TIN G  RIG H TS 
ACT DOES NOT APPLY TO THE JUDICIARY.

A. The LULAC D ecision.

The United States Court of Appeals for the Fifth 
Circuit dismissed the appeal in this case based on the en 
banc decision of that Court in Latin American Citizens 
Council #4434 v. Clements, 914 F.2d 620 (5th Cir. 1990) (en

3 Petitioners did not appeal the district court's rejection of 
their constitutional claim of intentional discrimination.



6

banc) (hereinafter "LULAC").4’ The plaintiffs in LULAC 
challenged the county-wide, at-large election of trial 
judges in Texas as violative of § 2(b) of the Voting Rights 
Act and of the United States Constitution. The trial court 
denied the constitutional claims, finding that the requisite 
discriminatory intent had not been proven. 914 F.2d at 
623. The trial court, however, did find "that the Texas law 
produced an unintended dilution of m inority voting 
strength" in violation of the "results" test of § 2(b) of the 
Voting Rights Act. 914 F.2d at 623 (emphasis in original). 
On appeal, a panel of the Fifth Circuit held that § 2(b) did 
not apply to trial judges because they are single-member 
officeholders who can be elected only at-large. 902 F.2d 
293 (5th Cir. 1990).

The Fifth Circuit granted an en banc hearing sua 
sponte. A majority held that judges are not "representa­
tives" within the meaning of § 2(b) of the Voting Rights 
Act and that the "results" test of § 2(b) does not apply to 
the judiciary. 914 F.2d 620 (5th Cir. 1990). Five judges 
concurred, agreeing with the view of the panel that trial 
judges are single-member officeholders. 914 F.2d at 634. 
Chief Judge Clark also concurred, limiting the case to its 
facts. 914 F.2d at 631. Only one Judge, Judge Sam John­
son, dissented. 914 F.2d at 651. After the en banc opinion 
was published, the panel in Chisom remanded this case to

4 On November 21, 1990, a group of plaintiffs-intervenors 
in that case, the Houston Lawyers' Association and six individ­
uals, filed a petition for a writ of certiorari asking this Court to 
review the judgment and opinion of the Fifth Circuit in 
LULAC. That petition is pending.



7

the district judge with orders to dismiss all Voting Rights 
Act claims. 917 F.2d 187 (5th Cir. 1990).

B. The Genesis of § 2(b) of the Voting Rights Act.

Section 2 of the Voting Rights Act of 1965 forbade 
imposition or application of any "voting qualification or 
prerequisite to voting, or standard, practice, or pro­
cedure" to prevent any citizen from voting on account of 
race or color. 42 U.S.C. § 1973. This Court in City of Mobile 
v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), 
held that enforcement of § 2 required proof of racially- 
discriminatory intent.

Congress then passed the Voting Rights Act of 1982 
amending § 2 to

restore the "results test" — the legal standard 
that governed voting discrimination cases prior 
to [the Supreme Court's] decision in Mobile v. 
Bolden * * * * Under the "results test," plaintiffs 
are not required to demonstrate the challenged 
electoral law or structure was designed or main­
tained for a discriminatory purpose.

Thornburg v. Gingles, 478 U.S. 30, 43 n. 8, 106 S.Ct. 2752, 92 
L.Ed.2d 25, 42 n. 8 (1986) (citations omitted). In writing 
§ 2(b), Congress chose -  with one significant exception -  
the words of Justice White in White v. Regester, 412 U.S. 
755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973). Justice White 
stated that plaintiffs' burden of proof was to show:

that its members had less opportunity than did 
other residents in the district to participate in 
the political processes and to elect legislators of 
their choice.



8

412 U.S. at 766, 93 S.Ct. at 2339, 37 L.Ed.2d at 324 
(emphasis supplied). Section 2(b) provides that a plaintiff 
class of citizens must show:

that its members have less opportunity than 
other members of the electorate to participate in 
the political process and to elect representatives 
of their choice.

42 U.S.C. § 1973(b) (emphasis supplied). As the majority 
in LULAC recognized, the choice of the word "representa­
tives" was a deliberate one: "the Congress was at some 
pains to adapt and broaden the Court's phrases so as to 
convey its precise meaning." 914 F.2d at 625.

C. This Court has always held that Judges are not 
"representatives."

As stated in the prior section, § 2(b) applies to "rep­
resentatives." Members of the legislative and executive 
branches are certainly representatives, and the case law is 
replete with decisions holding that § 2(b) applies to such 
entities. See, e.g., Gomez v. City of Watsonville, 863 F.2d
1407 (9th Cir. 1988), cert, denied, ___U.S. ____ , 109 S.Ct.
1534, 103 L.Ed.2d 839 (1989) (city council and mayor); 
Edge v. Sumter County School District, 775 F.2d 1509 (11th 
Cir. 1985) (school board); Ketchum v. Byrne, 740 F.2d 1398 
(7th Cir. 1984), cert, denied, 471 U.S. 1135, 105 S.Ct. 2673, 
86 L.Ed.2d 692 (1985) (city aldermen); United States v. 
Marengo County Commission, 731 F.2d 1546 (11th Cir.), 
appeal dismissed & cert, denied, 469 U.S. 976, 105 S.Ct. 375, 
83 L.Ed.2d 311 (1984) (county commission); Velasquez v. 
City of Abilene, 725 F.2d 1017 (5th Cir. 1984) (city council); 
Brown v. Board of School Commissioners of Mobile County, 
706 F.2d 1103 (11th Cir.), affirmed, 464 U.S. 1005, 104 S.Ct.



9

520, 78 L.Ed.2d 705 (1983) (board of school commission­
ers); Jordan v. Winter, 604 F. Supp. 807 (N.D. M iss.), 
affirmed, 469 U.S. 1002, 105 S.Ct. 416, 83 L.Ed.2d 343 
(1984) (congressmen).

Judges, however, traditionally have not been consid­
ered "representatives." This Court so held by affirming a 
three judge court voting rights decision that the "one- 
man, one-vote" concept does not apply to the judiciary. 
Wells v. Edwards, 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 
679 (1973). In refusing to apply "one-man, one vote" 
precepts, the three judge court reasoned as follows:

[Ajs stated in Buchanan v. Rhodes [249 F. Supp.
860 (N.D. Ohio 1960), appeal dismissed, 385 U.S.
3, 87 S.Ct. 33, 17 L.Ed.2d 3 (1966)]:

"Judges do not represent people, they 
serve people." Thus, the rationale behind 
the one-m an, one-vote principle, which 
evolved out of efforts to preserve a truly 
representative form of government, is sim­
ply not relevant to the makeup of the judici­
ary.

"The State judiciary, unlike the legislature, 
is not the organ responsible for achieving 
rep resen tative governm ent." New York 
State Association of Trial Lawyers v. Rock­
efeller, 267 F.Supp. 148, 153.

Wells v. Edwards, 347 F. Supp. 453 (M.D. La. 1972) (three 
judge court). The LULAC majority opinion reasons that 

[i]t is impossible, given the single point at issue and the 
simple reasoning stated, to believe that the majority of 
the Supreme Court, in affirming Wells, did not concur in 
that reasoning." 914 F.2d at 627.



10

Similarly, Justice Frankfurter has stated: "Courts are 
not representative bodies. They are not designed to be a 
good reflex of a democratic society." Dennis v. United 
States, 341 U.S. 494, 575, 71 S.Ct. 857, 95 L.Ed. 1137, 
1160-61 (1951) (Frankfurter, J., concurring in the judg­
ment). And Justice Stewart has contrasted the Court's 
duty with that of the people's representatives:

It is the essence of judicial duty to subordinate 
our own personal views, our own ideas of what 
legislation is wise and what is not. If, as I should 
surely hope, the law before us does not reflect 
the standards of the people of Connecticut, the 
people of Connecticut can freely exercise their 
true Ninth and Tenth Amendment rights to per­
suade their elected representatives to repeal it.

Griswold v. Connecticut, 381 U.S. 479, 530-31, 85 S.Ct. 1678, 
14 L .Ed .2d 510, 542 (1965) (Stew art, J., d issenting) 
(emphasis supplied).

D. Other Federal Courts have held that Judges are 
not "representatives."

The lower federal courts have also held that judges 
are not representatives. The plaintiffs in Holshouser v. 
Scott, 335 F. Supp. 928 (M.D.N.C. 1971) (three judge 
court), attacked the North Carolina system of nominating 
judges by districts and electing them statewide, contend­
ing that it denied voters equal protection of the laws. 
They cited, inter alia, Baker v. Carr, 369 U.S. 186, 82 S.Ct. 
691, 7 L.Ed.2d 663 (1962), and Reynolds v. Sims, 377 U.S. 
533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). The court distin­
guished these and the other cases because they "dealt 
with the election of the representatives of the people -



11

officials who make laws, levy and collect taxes, and gen­
erally manage and govern people." 335 F. Supp. at 930. 
After discussing two precedents involving reapportion­
ment, the court stated:

While Buchanan [v. Rhodes, 249 F. Supp. 860 
(N.D. Ohio 1960), appeal dismissed, 385 U.S. 3, 87 
S.Ct. 3 3 ,1 7  L.Ed.2d 3 (1966)] and [New York State 
Association of Trial Laivyers v.j Rockefeller [267 F. 
Supp. 148 (S.D.N.Y. 1967], deal with the appor­
tionment of judges rather than their election, 
they nevertheless point up the many pitfalls and 
briar patches which the courts will encounter if 
the one man, one vote principle is made applica­
ble to the judiciary. The function of judges, con­
trary to some popular views of today, is not to 
make, but interpret the law. They do not govern 
nor represent people nor espouse the cause of a 
particular constituency. They must decide cases 
exclusively on the basis of law and justice and 
not upon the popular view prevailing at the 
time.

335 F. Supp. at 932. The Holshouser case was affirmed by 
the Supreme Court. 409 U.S. 807, 93 S.Ct. 43, 34 L.Ed.2d 
68 (1972).

A similar system of electing judges in Georgia was 
upheld in Stokes v. Fortson, 234 F. Supp. 575 (N.D. Ga. 
1964) (three judge court). The court stated:

[E]ven assuming some disparity in voting 
power, the one man-one vote doctrine, applica­
ble as it now is to selection of legislative and 
executive officials, does not extend to the judici­
ary. Manifestly, judges and prosecutors are not 
representatives in the same sense as are legisla­
tors or the executive. Their function is to admin­
ister the law, not to espouse the cause of a 
particular constituency. Moreover there is no



12

way to harmonize selection of these officials on 
a pure population standard with the diversity in 
type and number of cases which will arise in 
various localities, or with the varying abilities of 
judges and prosecutors to dispatch the business 
of the courts. An effort to apply a population 
standard to the judiciary would, in the end, fall 
of its own weight.

234 F. Supp. at 577.

In two New York cases the plaintiffs sought judicial 
reapportionment on the basis of population, again relying 
on legislative reapportionment cases such as Reynolds v. 
Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). In 
New York State Association of Trial Lawyers v. Rockefeller, 267 
F. Supp. 148 (S.D.N.Y. 1967), the court rejected the com­
parison, stating that:

The state judiciary, unlike the legislature, is 
not the organ responsible for achieving repre­
sentative government. Nor can the direction that 
state legislative districts be substantially equal 
in population be converted into a requirement 
that a state distribute its judges on a per capita 
basis.
*  *  *  *

In contrast to legislative apportionm ent, 
population is not necessarily the sole, or even 
the most relevant, criterion for determining the 
distribution of state judges. The volume and 
nature of litigation arising in various areas of 
the state bears no direct relationship to the pop­
ulation of those areas.

267 F. Supp. at 153-54. A three judge court rejected a 
similar suit in the Eastern District of New York, quoting 
the Rockefeller opinion's statement that the state judiciary



13

is not "responsible for achieving representative govern­
m ent." Kail v. Rockefeller, 275 F. Supp. 937, 941 (E.D.N.Y. 
1967) (three judge court).

The Ohio judicial structure guaranteeing each county 
at least one judge in the court of general jurisdiction came 
under attack in Buchanan v. Rhodes, 249 F. Supp. 860 (N.D. 
Ohio 1966), appeal dismissed, 385 U.S. 3, 87 S.Ct. 33, 17 
L.Ed.2d 3 (1966), vacated, 400 F.2d 882 (6th Cir. 1968), cert, 
denied, 393 U.S. 839, 89 S.Ct. 118, 21 L.Ed.2d 110 (1968). 
Once again, the com plaint was predicated upon the 
Supreme Court's reapportionment cases. The court noted 
that when representatives to a legislative body are malap- 
portioned, the voting strength of individual citizens 
becomes unequal, causing a dilution of power. 249 F. 
Supp. at 865. Judges, however, are not governed by such 
a rule:

But in determining the reasonableness of a 
judicial system which permits at least one judge 
operating a court of general jurisdiction in each 
county, we must recognize one glaring distinc­
tion between the functions of legislators and the 
functions of jurists. Judges do not represent peo­
ple, they serve people.

249 F. Supp. at 865.5

5 Numerous other decisions make a similar distinction 
between judges and representative officials. See Gilday v. Board 
of Elections of Hamilton County, 472 F.2d 214, 217 (6th Cir. 1972) 
(rejecting application of one-man, one-vote to judicial selection 
in Ohio and holding "that equal protection does not require the

(Continued on following page)



14

E. The Term "representatives" is not a Synonym 
for "elected officials".

Earlier sections of this Response demonstrate that 
this Court and the lower federal courts do not consider 
judges to be "representatives." This section argues that 
the word "representative" as used in § 2(b) is not syn­
onymous with "elected official" and should instead be 
given its commonly understood meaning. This Court has 
laid down definitive guidelines for construing language 
which appears in Congressional acts.

In Consumer Products Safety Comm'n v. GTE Sylvania, 
447 U.S. 102, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980), the 
Court stated:

(Continued from previous page) 
allocation of state judges on this basis"); Sagan v. Common­
wealth of Pennsylvania, 542 F. Supp. 880, 882 (W.D. Pa. 1982) 
(distinguishing judicial candidates from legislative and execu­
tive candidates because judges administer the law rather than 
espouse the cause of a particular constituency); Fahey v. Dar- 
igan, 405 F. Supp. 1386, 1391 n. 6 (D.R.I. 1975) (holding one- 
man, one-vote precepts inapplicable to "the selection of offi­
cials not intended to serve in a representative role, such as 
judges"); Buchanan v. Gilligan, 349 F. Supp. 569, 571 (N.D. Ohio 
1972) (three judge court) (rejecting application of one-man, 
one-vote to Ohio judiciary because "[t]he state judiciary is not 
responsible for achieving representative government"); Romiti 
v. Kerner, 256 F. Supp. 35, 46 (N.D. 111. 1966) (three judge court) 
(expressing "little doubt" that "there is a valid distinction 
between applying the 'one man, one vote' rule in a legislative 
apportionment case to the election of a state supreme court 
judiciary").



15

We begin with the familiar canon of statutory 
construction that the starting point for interpret­
ing a statute is the language of the statute itself.

447 U.S. at 108, 100 S.Ct. 2051, 64 L.Ed.2d at 773.

Four years later, in furtherance of this concept of 
construction, the Court held in Escondido Mut. Water Co. v. 
La Jolla Indians, 466 U.S. 765, 104 S.Ct. 2105, 80 L.Ed.2d 
753 (1984):

Since it should be generally assumed that Con­
gress expresses its purposes through the ordi­
nary meaning of the words it uses, we have 
often stated that "  '[a]bsent a clearly expressed 
legislative intention to the contrary, [statutory] 
language must ordinarily be regarded as conclu­
sive.' "

466 U.S. at 772, 104 S.Ct. 2105, 80 L.Ed.2d at 761 (citations 
omitted).

And in Dickerson v. New Banner Institute, Inc., 460 U.S. 
103, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983), the Court said:

[W]e state once again the obvious when we note 
that, in determining the scope of a statute, one is 
to look first at its language * * * * If the language 
is unambiguous, ordinarily it is to be regarded 
as co n clu siv e  u n less there is "  'a c learly  
expressed legislative intent to the contrary.' "

460 U.S. at 110, 103 S.Ct. 986, 74 L.Ed.2d at 853 (citations 
omitted).

The term "representatives" refers to those who serve 
a specialized constituency and whose role is to represent 
the needs and interests of that constituency. The term 
"representatives" has never been commonly accepted as 
including the judicial branch; indeed, the reverse is true -



16

namely, the judicial branch always has been treated as sepa­
rate and distinct from the two representative arms of govern­
ment.

A representative of a district, be it federal, state, or local, 
exists to serve and favor his or her constituency, while 
hopefully also working for the good of the governmental 
jurisdiction as a whole. United States representatives are 
expected to help obtain government contracts for their dis­
tricts; no one, however, would expect a federal judge to 
uphold such a contract citing as a reason the need of his area 
for governmental business. State legislators are expected to 
seek bridges and roads for their districts; no one, however, 
would expect a state judge to mandate that such bridges and 
roads be built merely because the people want them. City 
councilmen are expected to promote drainage projects for 
their council district; no one, however, would expect a city 
judge to require them to keep his voters happy.

Judges thus are not representatives; further, they should 
not be representatives. The larger the constituency, the less 
parochial pressures can be brought to bear. An advantage to 
at-large elections for judges is that judges can make the 
difficult decisions without undue fear of dissatisfaction in 
the electorate. A judge would be much less likely to vote 
against the residents of a neighborhood on a zoning issue if 
that judge was elected solely by that neighborhood. Justice 
ought to be identical throughout a judicial system; electing 
judges from neighborhoods, however, might make for a 
system of individualized justice currently foreign to the 
United States. Admittedly, many problems could be cured on 
appeal; however, it can be extremely difficult to reverse a 
detailed record of fact-finding even when the facts have been 
slanted. Further, the petitioners here seek to make appellate



17

districts smaller also, again lessening the number and mix of 
a judge's electorate.

Congress, had it wanted specifically to include judges 
under Section 2(b) of the Voting Rights Act, could have done 
so by substituting the term "elected official" for the term 
"representative"; it did not do so. In a representative form of 
government, such as ours, it is always true that a "represen­
tative" is an "elected official"; however, the converse is not 
always true.

Representatives have a constituency which numbers in 
the hundreds to hundreds of thousands, to each of whom 
they owe fidelity and from many of whom they are likely, 
sooner or later, to receive correspondence or a telephone call 
or even perhaps a personal visit. Judges have but one con­
stituency, the blindfolded lady with the scales and sword.

F. The Fundamental Difference Between "representa­
tives" and Members of the Judiciary is Deeply 
Rooted in this Country's History.

In holding that "the judiciary serves no representative 
function whatsoever," 914 F.2d at 625, the LULAC Court 
quoted Professor Eugene Hickok as stating that, "The judici­
ary occupies a unique position in our system of separation of 
powers, and that is why the job of a judge differs in a 
fundamental way from that of a legislator or executive." 
Hickok, "Judicial Selection: The Political Roots of Advice and 
Consent" in Judicial Selection: Merit, Ideology and Politics 5 
(National Legal Center for the Public Interest 1990), quoted at 
914 F.2d at 926.

Other scholars have also recognized this difference. Pro­
fessor G. Edward White has written in The American Judicial 
Tradition that the American judicial tradition emerged with



18

Chief Justice John Marshall.6 A core element of that tradition 
has always included "a measure of true independence and 
autonomy for the appellate judiciary from the other two 
branches of government." Judicial Tradition 9. Professor White 
summarized Chief Justice Marshall's views concerning the 
judiciary as follows:

An independent judiciary was logically the ulti­
mate necessity in Marshall's jurisprudence, the cul­
mination of his beliefs about law and government.
He sought to show that judicial independence was 
not merely a side effect of federalism but a first 
principle of American civilization * * * * Against 
the potential chaos attendant on mass participatory 
democracy, republicanism erected the institutional 
buffers of legislative representatives and an inde­
pendent judiciary. The excesses of the people were 
moderated by representation, a process by which 
their passionate demands were reformulated by an 
enlightened and reasonable class of public ser­
vants. The need of the populace for an articulation 
of their individual rights under law was met by the 
presence of a body of judges not beholden to the 
masses in any immediate, partisan sense.

Judicial Tradition 18, 20.

Chief Justice Marshall's vision of the American judi­
cial tradition was not unique. A lexander Ham ilton 
"envisaged jud icial review as an exercise in politics 
through which an independent judicial elite could temper 
the democratic excesses of legislatures by affirming the 
republican political balances inherent in the Constitu­
tion." Judicial Tradition 24. Some of the Founding Fathers

6 Citations are hereinafter abbreviated as Judicial Tradition. 
Page references refer to the 1978 Oxford University Press 
paperback edition.



19

thought an independent judiciary necessary because 
"even a government made up of the people's representa­
tives was not a sufficient buffer against the excesses of 
the m ob." Judicial Tradition 320.

This American judicial tradition has also been appli­
cable to the state judiciary. Professor White commented 
that the state constitutions "were patterned on the federal 
Constitution, with its tripartite division of powers." Judi­
cial Tradition 109. James Kent, Chief Judge of the New 
York Supreme Court and later Chancellor of New York, 
"viewed the judiciary as a buffer between established 
wealth and the excessively democratic legislature." Judi­
cial Tradition 112. Much more recently, Chief Justice Roger 
Traynor of the California Supreme Court wrote that 
judges "enjoyed a 'freedom from political and personal 
pressures and from adversary bias' [and that] [t]heir 
'environment for work' was 'independent and analyt­
ically objective.' " Judicial Tradition 296, quoting Traynor, 
"Badlands in an Appellate Judge's Realm of Reasons," 7 
Utah L.Rev. 157, 167, 168 (1960).

Professor W hite traced "modern liberalism" trends 
throughout the Twentieth Century. According to this 
political theory, judges "were not, by and large, represen­
tatives of the people, and their nonpartisan status insu­
lated them from the waves of current opinion." Judicial 
Tradition 320. Legislatures, on the other hand, "were 'rep­
resentative of popular opinion' and could 'canvass a wide 
spectrum of views.' " Judicial Tradition 322. One Twentieth 
Century Justice, Felix Frankfurter, has called the judiciary



20

the "antidemocratic, unrepresentative" branch of govern­
ment." Judicial Tradition 367.7

Various legal theorists have also stated that judges are 
not "representatives." Perhaps the most provocative book to 
appear on judicial review during the last few years is Democ­
racy and Distrust by Professor John Hart Ely.8 Professor Ely 
contrasts the role of the courts with the role of the represen­
tative branch of government, the legislative branch. He 
sought an approach to judicial review "not hopelessly incon­
sistent with our nation's commitment to representative 
democracy." Democracy and Distrust 41. In his book, Professor 
Ely developed a representation-reinforcing theory of judicial 
review in which the non-representative branch (the judici­
ary) would review legislation to determine the motivation of 
the representative branch (the legislature) to make sure that 
the views of all groups were represented in lawmaking. He 
concluded by stating that "constitutional law appropriately 
exists for those situations where representative government 
cannot be trusted." Democracy and Distrust 183.

Professor Alexander Bickel spoke of the importance of 
judicial independence in The Supreme Court and the Idea of 
Progress.9

7 Professor Lawrence Friedman also has written about the 
history of a strong, independent judiciary in both federal and 
state governmental systems. L. Friedman, A History of American 
Law 116, 118 (Simon & Schuster 1973 paperback edition).

8 Page references are to the 1980 Harvard University Press 
hardbound edition.

9 Citations are hereinafter abbreviated as Supreme Court 
and Progress. Page references refer to the 1978 Yale University 
Press paperback edition.



21

The restraints of reason tend to ensure also 
the independence of the judge, to liberate him 
from the demands and fears -  dogmatic, arbi­
trary, irrational, self-or group-centered, -  that so 
often enchain other public officials. They make 
it possible for the judge, on some occasions, at 
any rate, to oppose against the will and faith of 
others, not merely his own will or deeply-felt 
faith, but a method of reaching judgments that 
may com m and the allegiance, on a second 
thought, even of those who find a result dis­
agreeable. The judge is thus buttressed against 
the world, but what is perhaps more significant 
and certain, against himself, against his own 
natural tendency to give way before waves of 
feeling and opinion that may be as momentary 
as they are momentarily overwhelming.
* * * *

The independence of the judges is an absolute 
requirement if individual justice is to be done, if a 
society is to ensure that individuals will be dealt 
with in accordance with duly enacted policies of 
the society, not by the whim of officials or of mobs, 
and dealt with evenhandedly, under rules that 
would apply also to others similarly situated, no 
matter who they might be.

Supreme Court and Progress 82, 84.

Professor Bickel contrasted the Court with the people 
and its representatives, stating, "Virtually all important 
decisions of the Supreme Court are the beginnings of 
conversations between the Court and the people and 
their representatives." Supreme Court and Progress 91.10

10 Supreme Court and Progress also contains much material 
on reapportionment. Supreme Court and Progress 35, 158-59,

(Continued on following page)



22

II. IF THE ONE-MAN, ONE-VOTE REQUIREMENT 
DOES NOT APPLY TO THE JUDICIARY, THE CON­
CEPT OF MINORITY VOTE DILUTION SET FORTH 
IN § 2(B) DOES NOT APPLY TO THE JUDICIARY.

This Court has held that the one-man, one-vote require­
ment does not apply to the judiciary. Wells v. Edwards, 409 
U.S. 1095, 93 S.Ct. 904, 34 L.E.2d 679 (1973). If this require­
ment is inapplicable, the concept of minority vote dilution in 
at-large districts is similarly inapplicable to the judiciary. As 
the Fifth Circuit held in LULAC,

Absent the one-person, one-vote rule -  that the 
vote of each individual voter must be roughly 
equal in weight to the vote of every other individ­
ual voter, regardless of race, religion, age, sex, or 
even the truly subjective and uniquely individual 
choice of where to reside -  there is no requirement 
that any individual's vote weigh equally with that 
of anyone else. This being so, and no such right 
existing, we can fashion no remedy to redress the 
non-existent wrong complained of here.

The notion of individual vote dilution, first 
developed by the Supreme Court in Reynolds v. 
Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 
(1964), was the foundation for the concept of 
minority vote dilution to be later elaborated in 
Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858,
29 L.Ed.2d 363 (1971), White v. Regester, [412 
U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973)], 
and Zimmer v. McKeithen, 485 F.2d 1297 (5th 
Cir. 1973). In d iv id u a l vo te  d ilu tio n  w as 
remedied by the Court through the concept of

(Continued from previous page)
168-73. Never in that discussion is there any intimation that 
reapportionment requires judicial redistricting. Indeed, such a 
notion would run counter to his strong arguments for judicial 
independence.



23

one-person, one-vote -  the guarantee of sub­
stantial equality among individual voters. With 
that guarantee in mind, remedial schemes to 
combat minority vote dilution were devised on 
a case by case basis.

914 F.2d at 627 (emphasis in original). The Senate Report 
concerning the 1982 amendment to the Voting Rights Act 
states "[t]he principle that the right to vote is denied or 
abridged by dilution of voting strength derives from the 
one-person, one-vote reapportionment case of Reynolds v. 
Sims." S.Rep.No. 417, 97th Cong. 2d Sess., reprinted in 
1982 U.S. Code Cong. & Admin. News at 177, 196.

The key issue, therefore, is whether Section 2(b) of 
the Voting Rights Act enshrines the "one-man, one-vote" 
principle as the touchstone test. If it does, then it cannot 
be used to analyze judicial elections, because the "one- 
man, one-vote" test was expressly rejected as applying to 
the judiciary in Wells v. Edwards, 347 RSupp. 453 (M.D. 
La. 1972), affirmed 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 
679 (1973).

The express language of the plurality opinion in Gin- 
gles, bolstered by the language of the concurring opin­
ions, shows that Section 2(b) is solely a "one-man, one- 
vote" litmus test. Justice Brennan, in speaking for the 
plurality, began by noting that when Section 2 of the 
Voting Rights Act was amended in 1982 to add Section 
2(b), the Congressional revision was a response to the 
plurality opinion in Mobile v. Bolden, 478 U.S. at 35, 106 
S.Ct. at 2759, 92 L.Ed.2d at 37. The plurality in Gingles, in 
interpreting what evidence it takes under Section 2(b) to 
prove a Section 2(a) violation, established a three-fold 
test:



24

First, the minority group must be able to dem­
onstrate that it is sufficiently large and geo­
graphically compact to constitute a majority in a 
single-member district. * * * Second, the minor­
ity group must be able to show that it is politi­
cally cohesive. * * * Third, the minority must be 
able to dem onstrate that the white majority 
votes sufficiently as a bloc to enable it, -  in the 
absence of special circum stances, such as a 
m i n o r i t y  c a n d i d a t e  r u n n i n g  u n o p p o s e d  
* * * usually to defeat the minority's preferred 
candidate * * * * In establishing this last circum­
stance, the minority group demonstrates that 
the submergence in a white multi-member dis­
trict impedes its ability to elect its chosen repre­
sentatives.

478 U.S. at 50-51, 106 S.Ct. at 2766-67, 92 L.Ed.2d 46-47.

As Justices O'Connor, Powell, Rehnquist, and Chief 
Justice Burger recognized in their concurring opinion in 
Gingles, this three-fold test equates to a requirement of 
proportional representation; i.e., one-man, one-vote. Jus­
tice O'Connor, speaking for these Justices, stated:

Third, although the Court does not acknowledge 
it expressly, the combination of the Court's defi­
nition of minority voting strength and its test 
for vote dilution results in the creation of a right 
to a form of proportional representation in favor 
of all geographically and politically cohesive 
minority groups that are large enough to consti­
tute m ajorities if concentrated within one or 
more single-member districts.

478 U.S. at 85, 106 S.Ct. at 2784-2785, 92 L.Ed.2d at 69.
In my view, the C ourt's test for m easuring 
minority voting strength and its test for vote 
dilution, operating in tandem, come closer to an 
absolute requirement of proportional represen­
tation than Congress intended when it codified 
the results test in § 2.



25

478 U.S. at 94, 106 S.Ct. at 2789, 92 L.Ed.2d at 74.
The Court's standard for vote dilution, when 
combined with its test for undiluted minority 
voting strength, makes actionable every devia­
tion from usual, rough, proportionality in repre­
sentation for any cohesive minority group as to 
which this degree of proportionality is feasible 
within the framework of single-m ember dis­
tricts. 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 proportional 
representation as nearly as is possible within the 
framework of the single-member districts. Since 
the Court's analysis entitles every such minority 
group usually to elect as many representatives 
under a multi-member district school, it follows 
that the Court is requiring a form of proportional 
representation.

478 U.S. at 97, 106 S.Ct. at 279, 92 L.Ed.2d at 76-77 
(emphasis supplied).

Justice O'Connor, and the other Justices who joined 
in her concurring opinion, recognized that proportional 
representation (one-man, one-vote) is the result of the 
plurality's opinion. It was exactly this type of propor­
tional representation that the.plurality in Mobile v. Bolden 
had rejected in its analysis of both Section 2 (pre-1982 
amendments) and the Fourteenth and Fifteenth Amend­
ments:

The theory of [Justice Marshall's] dissenting 
opinion -  a theory much more extreme than that 
espoused by the District Court or the Court of 
Appeals -  appears to be that every "political 
group," or at least every such group that is a 
minority, has a federal constitutional right to 
e l e c t  c a n d i d a t e s  in p r o p o r t i o n  to i t s  
numbers. * * *



26

Whatever appeal the dissenting opinion's view 
may have as a matter of political theory, it is not 
the law.

446 U.S. at 75, 100 S.Ct. at 1504, 64 L.Ed.2d at 63-64.

The plurality in Mobile recognized that what is now 
Section 2(a) does not require a "proportionality" test. 
Section 2(a) was not substantially changed in the 1982 
amendments. Thus, if Section 2(b) establishes a "one- 
man, one-vote" test, then under Wells it cannot be used 
against the judiciary.

The petitioners may take the position that there is a 
distinction between a "proportionality" test and a "one- 
man, one-vote" test. Such an argument would be unavail­
ing, as the plurality opinion in Mobile v. Bolden expressly 
recognized.

After discussing (and rejecting) the dissent's argu­
ment concerning proportionality, the plurality in Mobile 
went further and determined that the "proportionality" 
argument equated to a "one-man, one-vote" test.

The dissenting opinion erroneously discovers 
the asserted entitlement to group representation 
within the "one person, one vote" principle of 
Reynolds v. Sims, supra, [377 U.S. 533, 84 S.Ct.
1362, 12 L.Ed.2d 506 (1964)] and its progeny.

446 U.S. at 77, 100 S.Ct. at 1505, 64 L.Ed.2d at 65. As 
Mobile v. Bolden recognized, the term "vote dilution" is 
equivalent to holding that there is a "one-man, one-vote" 
test. 446 U.S. at 78, 100 S.Ct. at 1505, 64 L.Ed.2d at 65-66. 
As the plurality in Mobile v. Bolden stated:

There can be, of course, no claim that the "one- 
person, one-vote" principle has been violated in 
this case * * * it is therefore obvious that 
nobody's vote has been "diluted" in the sense in 
which that word was used in the Reynolds case.



27

*  *  *

It is, of course, true that the right of a person to 
vote on an equal basis with other voters draws 
much of a significance from the political associa­
tions that its exercise reflects, but it is an alto­
gether different m atter to conclude that political 
groups themselves have an independent consti­
tutional claim to representation.

446 U.S. at 78, 100 S.Ct. 1505, 1507, 64 L.Ed.2d at 65, 66.

Because Gingles involves only the interpretation of 
Section 2(b), and because Wells prohibits the use of a 
"one-m an, one-vote" test involving judicial elections, it is 
clear that the Section 2(b) results test cannot be used to 
prove a violation of Section 2(a) in judicial elections.

The concept of dilution of group voting strength 
[which is embodied in subsection (b) of amended Section 
2] rests on two assumptions: (1) that each person's vote 
should have the same weight as another person's vote, 
and (2) that a given (protected) group should wield 
roughly the aggregate voting strength of its members. See 
Zimmer v. McKeithen, 485 F.2d 1297, 1303 (5th Cir. 1973). If 
the first assumption is not true, the second cannot be 
made. For without the assumption of substantial equality 
among voting shares made possible by the one-man, one- 
vote principle, no aggregate measure of minority voting 
strength -  and therefore no measure of dilution of that 
strength -  is conceivable. Because the one-man, one-vote 
rule does not apply to the judiciary, the conceptually 
dependent notion of m inority group vote dilution, 
embodied in subsection (b), has no field of operation in 
judicial elections.

This argument has nothing to do with statutory inter­
pretation, does not depend on a particular construction of 
the word "representative" as used in subsection (b), and



28

is not based on whether Congress intended that amended 
Section 2 have some field of operation with respect to 
judicial elections. It is, instead, based on an explanation 
of why, regardless of what breadth Congress intended for 
amended Section 2, minority group vote dilution -  as that 
concept has developed in the voting rights jurisprudence 
-  simply cannot exist unless the one-man, one-vote rule 
applies.

Thornburg v. Gingles, the Court's definitive exegesis of 
Section 2 vote dilution, sharpens this point. In her con­
curring opinion, Justice O'Connor, joined by Powell, 
Rehnquist, and Chief Justice Burger, notes that "[i]n order 
to evaluate a claim that a particular multimember district 
or single-m em ber d istrict has diluted the m inority 
group's voting strength to a degree that violates § 2 . . .  it 
is . . . necessary to construct a measure of 'undiluted' 
minority voting strength." Gingles, 478 U.S. at 88, 106 
S.Ct. 2786, 92 L.Ed.2d at 71. There is no doubt that the 
yardstick adopted by the Gingles Court -  a calculation of 
the m inority's potential voting strength in a single-mem­
ber district system -  rests on the assumption that the one- 
man, one-vote rule applies and that each district has 
roughly the same population. See 478 U.S. at 50-51 n. 17, 
89-90, 106 S.Ct. 2766-67 n. 17, 2787, 92 L.Ed.2d at 46-47 
n.17, 72. Otherwise, to paraphrase Justice Harlan, the 
Court would be unable even to measure what it purports 
to equalize. Whitcomb v. Chavis, 403 U.S. at 169, 91 S.Ct. 
1883, 29 L.Ed.2d at 391 (Harlan J., separate opinion).

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



29

context. It is always possible to construct a geograph­
ically compact black voting majority district by continu­
ing to reduce the total population in that district down to, 
if necessary, a minimum of one. There ARE no "judicially 
discernable and manageable standards" 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 con­
tracted or expanded at will. See Baker v. Carr, 369 U.S. 186, 
217, 82 S.Ct. 691, 7 L.Ed.2d 663, 686 (1962). As one lower 
court has held, "A n effort to apply a population standard 
to the judiciary would, in the end, fall of its own weight." 
Stokes v. Fortson, 234 F. Supp. 575, 577 (N.D. Ga. 1964).

--------------- •--------------

CONCLUSION

This Court has always recognized the importance of 
an independent judiciary, holding in Chandler v. Judicial 
Council, 398 U.S. 74, 90 S.Ct. 1648, 26 L.Ed.2d 100 (1970): 
"There can, of course, be no disagreement among us as to 
the imperative need for total and absolute independence 
of judges in deciding cases or in any phase of the decisio­
nal function." 398 U.S. at 84, 90 S.Ct. 1648, 26 L.Ed.2d at 
108. In a dissent in the same case, Justice Douglas stated, 
"An independent judiciary is one of this Nation's out­
standing characteristics." 398 U.S. at 136, 90 S.Ct. 1648, 26 
L.Ed.2d at 137 (Douglas, J., dissenting).

A quarter of a century ago this Court declared, "Leg­
islators represent people, not trees or acres." Reynolds v. 
Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 12 L.Ed.2d 506, 527 
(1964). Unlike legislators, judges are not "instruments of 
government elected directly by and directly representa­
tive of the people." 377 U.S. at 562, 84 S.Ct. 1362, 12



30

L.Ed.2d at 527. Making judges representatives would do 
violence to (and perhaps destroy) the American concept 
of an independent judiciary.

For the reasons set forth herein, this Court should 
deny the Petition for Certiorari.

All of the above and foregoing is thus respectfully 
submitted.

R obert G . P ugh 
Counsel of Record 
R obert G . P ugh, J r .
Of the Law Firm of 
P ugh, P ugh & P ugh 

Commercial National Tower 
Suite 2100 

333 Texas Street 
Shreveport, LA 71101-5302 

(318) 227-2270

M oise W. D ennery 
601 Poydras Street 

New Orleans, LA 70130 
(504) 586-1241

M . T ruman W oodward, J r . 
909 Poydras Street 
Suite 2300
New Orleans, LA 70130 
(504) 569-7100

SPECIAL ASSISTANT

A. R. C hristovich 
2300 Pan American Life 

Center
601 Poydras Street 
New Orleans, LA 70130 
(504) 561-5700

ATTORNEYS GENERAL
W illiam J. G uste, Jr. 

Attorney General 
Louisiana Department of Justice 

234 Loyola Avenue, 7th Floor 
New Orleans, LA 70112 

(504) 568-5575

December 14th, 1990.



■ ........... 1 . ' : .... . • .................