Correspondence from Reynolds to DeJean

    4. • U.S. Departmeef Justice 

Civil Rights Division 

Office of the Assistant Attorney General Washington, D.0 20530 

September 23, 1988 

'Kenneth C. DeJean, Esq. 
Chief Counsel 
P. 0. Box 44005 
Baton Rouge, Louisiana 70804 

Dear Mr. DeJean: 

This refers to Act 23, H.B. No. 315 (1970), which provides for 
an additional judgeship in the 22nd Judicial District and a special 
election therefor; Act 801, S.B. No. 270 (1987), which creates an 
additional judgeship for each of the three judicial districts in the 
Third Circuit Court of Appeals andzan additional circuitwide 
judgeship in the Second Circuit Court of Appeals, and provides 
special elections therefor; and Act 200, H. B. No. 451, (1988), which 
changes the special election date under Act 801 (1987), for the State 
of Louisiana 4ubmitted to the Attorney General pursuant to Section 5 
of the Voting Rights Act of 1965, as amended, 42 U.S.C. 1973c. We 
received the information to complete your submission of Act 23 on 
August 23, 1988 and of Acts 801 and 200 on August 19, 1988. In 
accordance with your request, expedited consideration has been given 
these submissions pursuant to the Procedures for the Administration 
of Section 5 (28 C.F.R. 51.34). 

This also refers to our letters of August 31, September 4, 
September 14, and September 29, 1987, which requested additional 
information concerning the voting changes relating to other judicial 
election districts as identified on Attachment A for the State of 
Louisiana, submitted to the Attorney General on July 1, 2, 6 and 31, 
11:37, pursuant to Section 5. Our records indicate that we have not 
received your response with regard to these matters. 

We have considered carefully the information you have 
provided, as well as information from the Census and other 
interested parties. In addition, we have reviewed the findings of 
the federal district court in Clark V. Roemer, No. 86-435-A (M.D. 
La., orders of August 10, 15, and 31, 1988), dealing with the 
election of judges in the State of Louisiana. We note the court's 
finding that the existing at-large method of election, with 



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designated posts and a majority vote requirement, results in a 
violation of Section 2 of the Voting Rights Act, 42 U.S.C. 1973, in 
the Second and Third Circuits, including each of their election sub-
districts, and in each of the other judicial districts identified in 
Attachment A. The court did not, however, make a discrete finding of 
a Section 2 violation regarding the existing election system in the 
22nd Judicial District. However, the court found that elections 
throughout the State of Louisiana and in each of its judicial 
districts were characterized by racially polarized voting. 

With regard to the instant changes in the Second and Third 
Circuits and those identified in Attachment A, the state is seeking 
to add elective judgeship positions under an election system that has 
been found to violate Section 2 of the Voting Rights Act. Likewise, 
with regard to the proposed redistricting of the 10th Judicial 
District, the resulting election method for the district is one which 
the court has found to violate Section 2. Thus, in the circumstances 
existing in Louisiana, these proposed judgeship positions and the 
submitted boundary line change cannot be implemented except in the 
context of a racially discriminatory election method. 

With regald to the adoption of designated posts in the First 
Circuit, we note that the black proportion of the population in each 
of the three districts within the First Circuit is at a level that 
would permit black voters an opportunity to elect a candidate of 
their choice, absent anti-single-shot voting devices. In the 
context of racially polarized voting that exists in the area, the 
imposition of designated posts, which prevents minority voters from 
utilizing the technique of single-shot voting, effects a 
retrogression in the position of minority voters within the meaning 
of Beer v. United States, 425 U.S. 130, 146 (1976) even aside from 
the court's finding in Clark that the implemented election system in 
Districts 2 and 3 of the First Circuit, including the use of the 
unprecleared numbered posts, violates Section 2 of the Voting Rights 
Ac*c. 

Under Section 5 of the Voting Rights Act, the submitting 
authority has the burden of showing that a submitted change has no 
discriminatory purpose or effect. See Georgia v. United States, 411 
U.S. 526 (1973); see also 28 C.F.R. 51.52. In addition, a submitted 
change may not be precleared if its implementation would lead to a 
clear violation of Section 2 of the Voting Rights Act. See 28 C.F.R. 
51.55(b). In light of these principles and the considerations 
discussed above, I cannot conclude, as I must under the Voting Rights 
Act, that the changes under Act 801 (1987) and Act 200 (1988), the 
proposed designated posts in the First Circuit, the proposed 
redistricting of the 10th Judicial District, and the other changes 
enumerated in Attachment A meet the Act's preclearance requirements. 
Therefore, on behalf of the Attorney General, I must object to the 
implementation of those changes. 



3 MM. 

Of course, as provided by Section 5 of the Voting Rights Act, 
you have the right to seek a declaratory judgment from the United 
States District Court for the District of Columbia that the changes 
do not have the purpose and will not have the effect of denying or 
abridging the right to vote on account of race or color. In 
addition, Section 51.45 of the guidelines permits you to request 
that the Attorney General reconsider the objection. However, until 
the objection is withdrawn or a judgment from the District of 
Columbia Court is obtained, the effect of the objection by the 
Attorney General is to make the implementation of the changes under 
Act 801 (9187) and Act 200 and the changes identified in 
Attachment A legally unenforceable. See also 28 C.F.R. 51.10. 

With regard to the proposed change in the 22nd Judicial 
District, the Attorney General does not interpose any objection to 
the change in question. However, we feel a responsibility to point 
out that Section 5 of the Voting Rights Act expressly provides that 
the failure of the Attorney General- to object does not bar any 
subsequent judicial action to enjoin the enforcement of such change 
In addition, as authorized by Section 5, the Attorney General 
reserves the Oght to reexamine this submission if additional 
information that would otherwise require an objection comes to his 
attention during the remainder of the sixty-day review period. See 
also 28 C.F.R. 51.41 and 51.43. 

In interposing no objection to the additional judgeship in the 
22nd Judicial District, we are not unmindful that the late submission 
of a proposed remedial single-member districting plan likely 
prevented the court from making a specific finding of a Section 2 
violation in the 22nd Judicial District, based on the court's 
criteria for issuing its amended findings of fact. We note also that 
the court in Clark, although not finding a discrete Section 2 
violation in the 22nd Judicial District or in other challenged 
districts in which voting changes are pending our review, did find 
that the state's election method for judges produced a systemic 
violation of Section 2. In addition, and as noted earlier, the court 
recognized the existence of racial bloc voting in judicial elections 
throughout the state, including those in the 22nd Judicial District, 
and it is well recognized generally that the use of a majority vote 
requirement and anti-single-shot provisions, such as numbered posts, 
enhances the opportunity to discriminate against minority voters in 
an at-large electoral system characterized by racially polarized 
voting. Thornburg v. Gingles, 478 U.S. 30, 45 (1986) (citing S. Rep. 
No. 417, 97th Cong. 2d Sess. 28-29); see also City of Rome v. United  
States, 446 U.S. 156, 184 & n.19 (1980) (citing U.S. Comm'n on Civil 
Rights, The Voting Rights Act: Ten Years After 206-07 (1975)). In 
these circumstances, our review has raised concerns that the existing 
election method in the 22nd Judicial District, as well as in other 
multi-member judicial districts, may indeed violate Section 2, and 



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attorneys in our Voting Section will continue to look at these 
issues to determine whether further action of that nature may be 
appropriate. 

Finally, our understanding of the court's decision in Clark is 
that the state may hold scheduled elections on October 1 for any 
judicial position that pre-dates the Voting Rights Act or that has 
received the requisite Section 5 preclearance. The court has, 
however, directed the state to fashion a remedy consistent with the 
court's findings. As we read those findings, preclearance of the 
additional judgeship in the 22nd Judicial District, or in any other 
district challenged in Clark, does not relieve the state of its 
responsibility to consider appropriate remedial adjustments in those 
districts, where such action is necessary to afford black voters an 
opportunity to participate on an equal basis with white voters and to 
elect candidates of their choice. Such adjustments may include not 
only the use of single-member districts but such other corrective 
measures as the use of limited or cumulative voting schemes and the 
elimination of restrictive election features, such as anti-single 
shot voting devices and the majority vote requirement, that impede 
minority partpipation. 

To enable this Department to meet its responsibility to 
enforce the Voting Rights Act, please inform us of the course of 
action the State of Louisiana plans to take regarding these matters.; 
If you have any questions concerning this letter, you may feel free 
to call Lora L. Tredway, Section 5 Attorney-Reviewer in the Voting 
Section (202-724-8290). 

Because the status of the submitted changes is at issue in 
Clark v. Roemer, supra, we are providing a copy of this letter to the 
court in that case. 

Sincerely, 

Wm. Bradford Reynolds 
Assistant Attorney General 

Civil Rights Division 

cc: Honorable John V. Parker 
United States Chief District Judge