Brief of Appellant (Detroit Board of Education v. Bradley)

    U.S. Depart t of Justice 

WBR:JDS:MLG:jwm 
DJ 166-32-0 

Gilbert F. Ganucheau, Clerk 
United States Court of Appeals 

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

Washington, D.C. 20530 

JUL 30 1987 

Re: Chisom V. Edwards, No. 87-3463  

Dear Mr. Ganucheau: 

Enclosed for filing are the original and three copies of the 
United States Motion for Leave to File Brief as Amicus Curiae Out 
of Time. Also enclosed are seven cqpies of the Brief of the 
United States As Amicus Curiae. 

Sincerely, 

Wm. Bradford Reynolds 
Assistant Attorney General 

Civra. Rights Division 

By: 

Mark L. Gross 
Attorney 

Appellate Section 

cc: pPlinela S. Karlan, Esq. 
Kendall Vick, Esq. 
M. Truman Woodward, Jr., Esq. 
Blake G. Arata, Esq. 
A.R. Christovich, Esq. 
Moise W. Dennery, Esq. 



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

No. 87-3463 

RONALD CHISOM, et al., 

Plaintiffs-Appellants 

V . 

EDWIN EDWARDS, et al., 

Defendants-Appellees 

Appeal from the United States District Court 
for the Eastern District of Louisiana 

MOTION OF THE UNITED STATES FOR LEAVE TO FILE 
BRIEF AS AMICUS CURIAE OUT OF TIME 

The United States hereby moves for leave to .file a brief as 

amicus curiae in this case two days late. As grounds for this 

motion, the government would show: 

1. The issue before this Court in this case -- whether 

Section 2 of the Voting Rights Act applies to the election of 

state court judges -- will affect the government's enforcement 

responsibilities. Because this will be the first appellate court 

to address this issue, this case is of considerable importance to 

the United States. Accordingly, the government has a substantial 

interest in participating in this case as amicus curiae. 

2. Recognizing this interest, government counsel contacted 

appellants' counsel, Pamela Karlan, shortly after the district 

court entered its judgment to inform her of possible amicus  

participation by the government. 



- 2 - 

3. Government counsel again re-contacted appellants' 

counsel in early July to determine whether the record had been 

filed and whether appellants had received a due date from the 

Court for filing its opening brief. At that time appellants' 

counsel stated that appellants' brief was then due on August 4, 

1987. 

4. Under the rules of this Court (Loc. R. 31.2), were 

appellants' brief due August 4, 1987, a government amicus brief 

supporting appellants would be due on or around August 19, 1987. 

Accordingly, government counsel constructed his work load to 

enable the government to file an amicus brief in this case in 

early August. 

5. On July 15, 1987, government counsel contacted Ms. 

Karlan again, this time to determine whether the district court 

had filed an amended opinion and to get a copy of that opinion 

from appellants. At that time, government counsel learned for 

the first time that appellants had filed their brief on July 13. 

6. Under the rules of this Court (Loc. R. 31.2), based on 

appellant's filing their brief on July 13, the government's 

amicus brief supporting the appellants would be due on July 28. 

7. Government counsel moved as quickly as possible to 

secure authorization from the Solicitor General for filing an 

amicus brief, see 28 C.F.R. 0.20(c), and to prepare the govern-

ment's brief. 

8. The United States has filed this motion, with the brief 

attached, seeking only two additional days. Accordingly, permit-



- 2 - 

3. Government counsel again re-contacted appellants' 

counsel in early July to determine whether the record had been 

filed and whether appellants had received a due date from the 

Court for filing its opening brief. At that time appellants' 

counsel stated that appellants' brief was then due on August 4, 

1987. 

4. Under the rules of this Court (Loc. R. 31.2), were 

appellants' brief due August 4, 1987, a government amicus brief 

supporting appellants would be due on or around August 19, 1987. 

Accordingly, government counsel constructed his work load to 

enable the government to file an amicus brief in this case in 

early August. 

5. On July 15, 1987, government counsel contacted Ms. 

Karlan again, this time to determine whether the district court 

had filed an amended opinion and to get a copy of that opinion 

from appellants. At that time, government counsel learned for 

the first time that appellants had filed their brief on July 13. 

6. Under the rules of this Court (Loc. R. 31.2), based on 

appellant's filing their brief on July 13, the government's 

amicus brief supporting the appellants would be due on July 28. 

7. Government counsel moved as quickly as possible to 

secure authorization from the Solicitor General for filing an 

amicus brief, see 28 C.F.R. 0.20(c), and to prepare the govern-

ment's brief. 

8. The United States has filed this motion, with the brief 

attached, seeking only two additional days. Accordingly, permit-



- 3 - 

ting the filing of this brief will not unduly delay appellate 

consideration of this case, and will not prejudice any party to 

this appeal. 

WHEREFORE, the United States requests leave to file its 

brief as amicus curiae in this appeal two days late. 

Respectfully submitted, 

Wm. Bradford Reynolds 
Assistant Attorney General 

Jessica Dunsay Silver 
Mark L. Gross 

Attorneys 
Department of Justice 
Washington, D.C. 20530 
(202) 633-2172 



CERTIFICATE OF SERVICE 

I hereby certify that I served the foregoing Motion of the 

United States for Leave to File Brief as Amicus Curiae Out of 

Time on parties to this appeal by mailing one copy to each 

counsel listed below: 

Pamela S. Karlan, Esq. 
99 Hudson Street 
16th Floor 
New York, New York 10013 

Kendall Vick, Esq. 
Assistant Attorney General 
Louisiana Department of Justice 
234 Loyola Avenue 
7th Floor 
New Orleans, Louisiana 70112 

M. Truman Woodward, Jr., Esq. 
1100 Whitney Building 
New Orleans, Louisiana 70130 

Blake G. Arata, Esq. 
210 St. Charles Avenue 
Suite 4000 
New Orleans, Louisiana 70170 

A.R. Christovich, Esq. 
1900 American Bank Building 
New Orleans, Louisiana 70130 

Moise W. Dennery, Esq. 
21st Floor Pan American Life Center 
601 Poydras Street 
New Orleans, Louisiana 70130 

This 30th day of July, 1987. 

Mark L. Gross 
Attorney 
Department of Justice 



• 
A, 

SI, • 

itrk 

" ...... •• 

W ILLIAM J. GUSTE, JR. 
ATTORNEY GENERAL 

,State of Ifiouana 
DEPARTMENT OF JUSTICE 

July 30, 1987 

Honorable Gilbert F. Ganucheau 
Clerk, United States Court of Appeals 
Fifth Circuit 
600 Camp Street 
New Orleans, Louisiana 70130 

Dear Mr. Ganucheau: 

7TH FLOOR 
2-3-4 LOYOLA BUILDING 
NEW ORLEANS 70112-2096 

Re: Chisom v. Edwards, 
U.S.D.C. #87-3463 

This letter is to confirm my telephone conversation 
with Ms. Perkins of your staff wherein I was granted an 
extension of time to file a brief on behalf of the appellees in 
the above-referenced case. The brief is now due on September 
8, 1987. 

This extension was requested because the cut-backs in 
our legal staff , has added to the already heavy demands on the 
time of our remaining staff. I thank you for your assistance. 

ETB/md 

CC: William Quigley 
Ronald Wilson 
Roy Rodney 
Pamela Karlan 
C. Lani Guinier 

BY: 

Sincerely yours, 

WILLIAM J. GUSTE, JR. 
ATTORNEY GENERAL 

KENDALL L. VICK 
ASSISTANT ATTORNEY GENERAL 

EAVELYN 
ASSISTA 



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

RONALD CHISOM, et al., 

Plaintiffs-Appellants 

V . 

EDWIN EDWARDS, et al., 

Defendants-Appellees 

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

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE 

WM. BRADFORD REYNOLDS 
Assistant Attorney General 

ROGER CLEGG 
Deputy Assistant Attorney General 

JESSICA DUNSAY SILVER 
MARK L. GROSS 

Attorneys 
Department of Justice 
Washington, DC 20530 



TABLE OF CONTENTS 
Page 

INTEREST OF THE UNITED STATES   1 
QUESTION PRESENTED   1 
STATEMENT   2 

A. Procedural history   2 

B. Facts   2 

C. Decision of the district court   3 

SUMMARY OF ARGUMENT   4 
ARGUMENT: 

SECTION 2 OF THE VOTING RIGHTS ACT APPLIES 
TO JUDICIAL ELECTIONS   5 

A. The plain language of the Voting Rights Act 
prohibits racial discrimination in judicial 
elections   5 

B. The 1982 amendments to Section 2 were not 
intended to narrow the pre-existing coverage 
of Section 2   10 

C. One person, one vote principles do not exempt 
judicial elections from Section 2 coverage   17 

D. The differences in how Section 2 applies to 
judicial elections should be left for the 
district court to consider on remand   19 

CONCLUSION   21 



TABLE OF AUTHORITIES 

Cases: Page 

Allen v. State Board of Elections, 393 U.S. 544 
(1969)   6, 7 

Atlantic Cleaners & Dyers v. United States, 
286 U.S. 427 (1932)    8 

Ball v James, 451 U.S. 355 (1981)    17 

Davis v. Bandemer, 54 U.S.L.W. 4898 
(U.S. June 30, 1986)    19 

Gaffney V. Cummings, 412 U.S. 735 (1973)   19 

Hadlev_ v. Junior College District, 397 U.S. 50 
(1970)   17 

Haith v. Martin, 618 F. Supp. 410 (E.D.N.C. 
1985), summarily aff'd, 54 U.S.L.W. 3840 
(U.S. June 23, 1986)   4, 7, 8 

Martin v. Allain, 658 F. Supp. 1183 (S.D. Miss. 
1987)   16 

Mobile v. Bolden, 446 U.S. 55 (1980)   5, 9, 11 

Pampanga Mills v. Trinidad, 279 U.S. 211 (1929)   8 

Reynolds v. Sims, 377 U.S. 533 (1964)   18, 19 

Rogers v. Lodge, 458 U.S. 613 (1982)   21 

South Carolina v. Katzenbach, 383 U.S. 301 (1966)  ▪ ▪ 6, 7 

Thornburg v. Gingles, 54 U.S.L.W. 4877 
(U.S. June 30, 1986)   11 

Trupiano v. Swift & Co., 755 F.2d 442 
(5th Cir. 1985)   2 

United States v. Sheffield Board of Comm'rs, 
435 U.S. 110 (1978)   6, 12, 16 

Voter Information Project v. City of Baton Rouge, 
612 F.2d 208 (5th Cir. 1980)   8, 9, 18, 

19, 20 

Washington v. Davis, 426 U.S. 229 (1976)   21 

Wells v. Edwards, 347 F. Supp. 453 (M.D. La. 1972), 
summarily aff'd, 409 U.S. 1095 (1973)   17, 18 



Cases (cont'd): Page 

Whitcomb v. Chavis, 403 U.S. 124 (1971)   19 

White v. Regester, 412 U.S. 755 (1973)   12, 13, 19 

Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 
1973), aff'd sub nom. East Carroll Parish  
Sch. Board v. Marshall, 424 U.S. 636 (1976)   12 

Constitution and statutes: 

Constitution of the United States: 
Fourteenth Amendment   2 
Fifteenth Amendment   2 

Voting Rights Act of 1965, as amended, 
42 U.S.C. 1973 et seq.: 
Section 2, 42 U.S.C. 1973  passim 
Section 5, 42 U.S.C. 1973c   7, 8, 15 
Section 14, 42 U.S.C. 19731(c)(1)   9 

Pub. L. No. 97-205, Sec. 3, 96 Stat. 134 (1982)   9 

Miscellaneous: 

111 Cong. Rec. 
115 Cong. Rec. 
121 Cong. Rec. 
128 Cong. Rec. 

15722-15723 (1965)   14 
38493 (1969)   14 
16241 (1975)   15 
14132-14133 (1982)   13 

H. R. Rep. No. 196, 94th Cong., 1st Sess. (1975)   14, 15 
S. Rep. No. 417, 97th Cong., 2d Sess. (1982)   12, 13, 15 

Extension of the Voting Rights Act, Hearings on 
H.R. 1407, H.R. 1731, H.R. 2942, H.R. 3112, 
H.R. 3198, H.R. 3473, and H.R. 3948 Before the 
Subcomm. on Civil and Constitutional Rights of the 
House Comm. on the Judiciary, 97th Cong., 1st Sess. 
(1981)     14, 15 

Extension of the Voting Rights Act, Hearings 
on H.R. 939, H.R. 2148, H.R. 3247, and H.R. 3501 
Before the Subcomm. on Civil and Constitutional 
Rights of the House Comm. on the Judiciary, 
94th Cong., 1st Sess. (1975)   15 

Voting Rights Act, Hearings 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. (1982)   14 



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

No. 87-3463 

RONALD CHISOM, et al., 

Plaintiffs-Appellants 

V. 

EDWIN EDWARDS, et al., 

Defendants-Appellees 

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

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE 

INTEREST OF THE UNITED STATES 

This case will address the question whether judicial 

elections are covered by Section 2 of the Voting Rights Act of 

1965, as amended, 42 U.S.C. 1973. The government has primary 

responsibility for enforcement of Section 2, an important federal 

statute which prohibits a wide range of racially discriminatory 

electoral practices. Since this is the first court of appeals to 

address the issue, the United States has considerable interest in 

the case's outcome. 

QUESTION PRESENTED 

Whether Section 2 of the Voting Rights Act applies to the 

election of state court judges. 



STATEMENT 

A. Procedural history  

On September 19, 1986, plaintiffs, black registered voters 

in Orleans Parish, Louisiana, filed a complaint alleging that the 

system of electing state Supreme Court Justices from the First 

Judicial District, which includes Orleans Parish, violated 

Section 2 of the Voting Rights Act and the Fourteenth and 

Fifteenth Amendments (see R.E. 2).1/ Plaintiffs filed an amended 

complaint on September 30, 1986 (R.E. 17-22). Plaintiffs alleged 

that the election of two state Supreme Court Justices in the 

First Judicial District diluted black voting strength, and sought 

an injunction requiring reapportionment of the First District in 

a way which does not dilute minority voting strength (R.E. 23). 

On May 1, 1987, the district court dismissed the complaint 

for failure to state a claim (R.E. 5-16). The court amended its 

opinion by order dated July 10, 1987.2/ 

B. Facts 2/ 

The seven Justices on Louisiana's Supreme Court are elected 

from six judicial districts (R.E. 19). The First District, which 

includes Orleans, St. Bernard, Plaquemines, and Jefferson 

Parishes, elects two Justices at-large (R.E. 20). The other five 

1/ "R.E." refers to the Record Excerpts. 

2/ "Op." refers to the district court's Amended Opinion, which is 
not included in the Record Excerpts. 

2/ The allegations of the complaint must be taken as true for 
purposes of reviewing the dismissal of a complaint. Trupiano v. 
Swift & Co., 755 F.2d 442, 443 (5th Cir. 1985). 



- 3 - 

districts, composed of several counties each, elect one Justice 

(R.E. 19-20). 

The population of the First District is 63% white, and its 

registered voter population is 68% white (R.E. 20). Plaintiffs 

contended that an appropriate division of the First District into 

two districts, each of which would elect one Justice, would leave 

one district, composed of Orleans Parish, with a 55% black 

population and a 52% black registered voting population (R.E. 20-

21). 

Plaintiffs alleged that elections in the First Supreme Court 

District were dilutive of black voting strength. Plaintiffs 

alleged (R.E. 21): 

Because of the official history of racial 
discrimination in Louisiana's First Supreme 
Court District, the wide spread prevalence of 
racially polarized voting in the district, 
the continuing effects of past discrimination 
on the plaintiffs, the small percentage of 
minorities elected to public office in the 
area, the absence of any blacks elected to 
the Louisiana Supreme Court from the Dis-
trict, and the lack of any justifiable reason 
to continue the practice of electing two 
Justices at-large from the New Orleans area 
only, plaintiffs contend that the current 
election procedures for selecting Supreme 
Court Justices from the New Orleans area 
dilutes minority voting strength and there-
fore violates the 1965 Voting Rights Act, as 
amended. 

C. Decision of the district court  

The district court held that, because Section 2 does not 

apply to judicial elections, the complaint had not described a 

violation of Section 2 of the Voting Rights Act. The court based 

its conclusion on three factors. First, the court stated that 



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Section 2, by its terms, is violated by circumstances which show 

that minorities do not have an equal opportunity "to elect 

representatives of their choice" (Op. 6). The court concluded 

that judges are not "representatives," and so judicial elections 

are not covered by Section 2 (Op. 6). Second, the court noted 

that "one man, •one vote" standards do not apply to judicial 

elections, demonstrating that judges are not like elected 

officials who "represent" voters (Op. 5-6, 8). Third, the court 

said the legislative history of Section 2 does not refer to 

judicial elections (Op. 7). 

The court also dismissed plaintiffs' constitutional claim, 

holding that plaintiffs' complaint failed to allege adequately an 

intentional violation of minority rights (Op. 12). 

SUMMARY OF ARGUMENT 

The district court held that judicial elections are not 

covered by Section 2 of the Voting Rights Act of 1965, as 

amended, 42 U.S.C. 1973. In so doing, it carved out an exclusion 

from the coverage of Section 2 which is unsupported by either the 

words or the legislative history of the Act. 

Section 2 covers any "voting qualification or prerequisite 

to voting, or standard, practice, or procedure." The plain 

meaning of this language reaches all elections, including 

judicial elections. The same language in Section 5 of the Act 

has been held to apply to judicial elections. Haith v. Martin, 

618 F. Supp. 410 (E.D.N.C. 1985), summarily aff'd, 54 U.S.L.W. 

3840 (U.S. June 23, 1986). 



- 5 - 

When Section 2 was amended in 1982, Congress restored the 

"results" test which the Supreme Court had effectively eliminated 

in its opinion in Mobile v. Bolden, 446 U.S. 55 (1980). Under 

that test, as explained in subsection (b) of revised Section 2, a 

violation of Section 2 may be proved if the results of a 

particular electoral practice deny minorities an equal 

"opportunity to participate in the electoral process and to elect 

representatives of their choice." 

The district court here held that Congress, by using the 

word "representatives" in subsection (b), intentionally excluded 

judicial elections. However, Congress' intent in amending 

Section 2 was only to restore the results test which Mobile had 

eliminated. Moreover, when it amended Section 2 to add language 

codifying the results test, Congress retained the pre-1982 

language defining the coverage of Section 2, and there is no 

suggestion in any legislative history that Congress intended to 

cut back on Section 2 coverage. In addition, Congress' use of 

the word "representatives" was not intended as an artful method 

of excluding judicial elections, but rather was used to reach any 

officials elected by popular vote. 

ARGUMENT 

SECTION 2 OF THE VOTING RIGHTS ACT 
APPLIES TO JUDICIAL ELECTIONS 

A. The plain language of the Voting Rights Act prohibits  
racial discrimination in judicial elections  

The Voting Rights Act was passed in 1965 as a means broadly 

to combat racial discrimination in voting practices. The Supreme 



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Court has stated that the Act "reflects Congress' firm intention 

to rid the country of racial discrimination in voting." South 

Carolina V. Katzenbach, 383 U.S. 301, 315 (1966). The Court has 

consistently stated that the Act was intended to be a broad 

effort to combat racial discrimination in a wide range of voting 

and electoral practices. See also Allen v. State Board of  

Elections, 393 U.S. 544, 565-566 (1969); United States v. 

Sheffield Board of Comm'rs, 435 U.S. 110, 122-123 (1978). 

In 1965, when Congress passed the Voting Rights Act, Section 

2 read as follows: 

No voting qualification or prerequisite to voting, 
or standard, practice, or procedure shall be imposed or 
applied by any State or political subdivision to deny 
or abridge the right of any citizen of the United 
States to vote on account of race or color. 

As discussed at pages 8-9, infra, this language has remained as 

the operative part of Section 2. Section 14, 42 U.S.C. 1973 

1(c)(1), defines "vote" to "include all action necessary to make 

a vote effective in any primary, special, or general election, 

including, but not limited to, registration, listing pursuant to 

this subchapter, or other action required by law prerequisite to 

voting, casting a ballot, and having such ballot counted properly 

and included in the appropriate totals of votes cast with respect 

to candidates for public or party office" (emphasis added). 

This language admits of no exception. Congress, by using 

such broad language, intended to reach all voting or electoral 

practices which could be used to deny or abridge the right to 

vote on the basis of race. That intent has been recognized by 



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the Supreme Court, which described Section 2 as "broadly pro-

hibit[ing] the use of voting rules to abridge exercise of the 

franchise on racial grounds." South Carolina v. Katzenbach, 

supra, 383 U.S. at 316. In Allen v. State Board of Elections, 

supra, the Court recounted how Congress amended an earlier 

version of proposed Section 2 to give it as broad a reach as 

possible. "Indicative of an intention to give the Act the 

broadest possible scope, Congress expanded the language in the 

final version of [Section] 2 to include any 'voting qualifica-

tions or prerequisite to voting, or standard, practice, or 

procedure." 393 U.S. 566-567. Accordingly, Section 2, by its 

terms, necessarily reaches the election of state court judges; 

there is nothing in the language to lend any support to the 

notion that Congress did not originally intend for Section 2 to 

cover those sorts of elections. 

The electoral practices to which Section 2 applies are also 

covered by Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. 

Section 5, which requires certain jurisdictions to submit changes 

in their voting practices to federal authorities for preclear-

ance, uses language -- "any voting qualification or prerequisite 

to voting, or standard, practice, or procedure with respect to 

voting" -- identical to that of Section 2 to define covered 

practices. It is indisputable that Section 5 covers judicial 

elections. In Haith V. Martin, 618 F. Supp. 410 (E.D.N.C. 1985), 

summarily aff'd, 54 U.S.L.W. 3840 (U.S. June 23, 1986), the 

district court rejected an argument that judicial elections 



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should be excluded. The court said, "As can be seen the Act 

applies to all voting without any limitation as to who, or what, 

is the object of the vote." Id. at 413 (emphasis in original). 

That decision was summarily affirmed by the Supreme Court, and, 

therefore, is binding precedent. 

The language interpreted in Haith to include judicial 

elections is the same language Congress used to define the 

coverage of Section 2, and basic tenents of statutory construc-

tion require that it be given an identical construction. 

Pampanga Mills v. Trinidad, 279 U.S. 211, 217-218 (1929); 

Atlantic Cleaners & Dyers v. United States, 286 U.S. 427, 433 

(1932).4/ Accordingly, the language of Section 2, and the 

Court's summary affirmance in Haith, along with its decision in 

Allen and other cases establishing the broad reach of Section 2, 

establish that Section 2 prohibits discrimination in all elec-

tions, including judicial elections. 

That conclusion is confirmed by this Court's decision in 

Voter Information Project v. City of Baton Rouge, 612 F.2d 208 

(1980). This Court reversed a district court decision dismissing 

a complaint which alleged that the at-large scheme of electing 

city and state judges in East Baton Rouge Parish diluted minority 

voting strength in violation of the Fourteenth and Fifteenth 

A/ It would create significant anomalies if an intention was 
attributed to Congress to permit scrutiny of changes in judicial 
election procedures under Section 5, but not to allow suit over 
these procedures under Section 2. The result of that would be 
that the Attorney General could scrutinize changes in judicial 
elections under Section 5, but could not sue to enjoin unchanged 
but discriminatory judicial election procedures. 



- 9 - 

Amendments. This Court rejected the district court's reliance on 

the fact that judicial elections are not subject to "one person, 

one vote" standards as a basis for holding that judicial elec-

tions may not be challenged as dilutive of minority voting 

rights. "To hold that a system designed to dilute the voting 

strength of black citizens and prevent the election of blacks as 

Judges is immune from attack would be to ignore both the language 

and purpose of the Fourteenth and Fifteenth Amendments." Id. at 

211. Since Section 2, as originally written, was intended to be 

coextensive with the Fifteenth Amendment, Mobile v. Bolden, 446 

U.S. 55, 60 (1980) (plurality opinion), this Court's Voter 

Information Project decision establishes that Section 2 neces-

sarily reached claims involving the election of judges. Con-

gress, of course, must be presumed to have been aware of the 

judicial gloss which had been applied to Section 2 when it passed 

the 1982 amendments and, as discussed in the next section, there 

is no evidence that it intended to overrule the logic of Voter 

Information Project. 

Section 2 of the Voting Rights Act was amended in 1982 (Pub. 

L. No. 97-205, Sec. 3, 96 Stat. 134 (1982)) and now reads as 

follows (emphasis added): 

(a) No voting qualification or prerequisite to 
voting or standard, practice, or procedure shall be 
imposed or applied by any State or political subdivi-
sion in a manner which results in a denial or abridge-
ment of the right of any citizen of the United States 
to vote on account of race or color, or in 
contravention of the guarantees set forth in section 
1973b(f)(2) of this title, as provided in subsection 
(b) of this section. 



- 10 - 

(b) A violation of subsection (a) of this section 
is established if, based on the totality of circum-
stances, it is shown that the political processes  
leading to nomination or election in the State or 
political subdivision are not equally open to partici-
pation by members of a class of citizens protected by 
subsection (a) of this section in 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. The extent to which 
members of a protected class have been elected to 
office in the State or political subdivision is one 
circumstance which may be considered: Provided, That 
nothing in this section establishes a right to have 
members of a protected class elected in numbers equal 
to their proportion in the population. 

We stress that the original language defining coverage -- "no 

voting qualification or prerequisite to voting, or standard, 

practice, or procedure" -- was retained. Paragraph (a) of the 

amended statute defines Section 2's coverage and, by retaining 

that language, preserves the coverage of the original version. 

It is paragraph (b) which contains the "representatives" lang-

uage. As discussed in the next section, however, that paragraph 

does not, and was not intended to, define the coverage of Section 

2. Rather, paragraph (b) simply sets forth the elements of proof 

of a dilution claim. As such, it cannot be read as a general 

limitation on the scope of Section 2. 

B. The 1982 amendments to Section 2 were not intended to  
narrow the pre-existing coverage of Section 2  

The district court focused on the word "representatives" in 

subsection (b), holding that, because judges are not "representa-

tives," Congress did not intend to cover the election of judges 

under revised Section 2. Op. 6-7. As we will show, the district 

court's interpretation of the word "representative," and the 



- 11 - 

importance it gave that word in the statutory scheme, is erron-

eous. 

Congress amended Section 2 in response to the Supreme 

Court's decision in Mobile v. Bolden, supra. In that decision, 

the Court held that the original Section 2 "no more than elabo-

rates upon [the language] of the Fifteenth Amendment," 446 U.S. 

at 60 (Stewart, J.); see also id. at 105 n. 2 (Marshall, J.), and 

found that Section 2 prohibited only acts of intentional discrim-

ination. 

Congress' response was to amend Section 2 to add language 

explaining that proof of intent was not required to make out a 

violation of the statute. As the Court explained in Thornburg v. 

Gingles, 54 U.S.L.W. 4877, 4881 (U.S. June 30, 1986), Congress 

disagreed with the Court's Bolden decision and enacted language 

-- the "results" test -- which codified Congress' pre-Bolden  

understanding that plaintiffs need not prove discriminatory 

intent to establish a violation of Section 2 (54 U.S.L.W. 4881 n. 

8): 

The Senate Report [97-417] states that amended [Sec-
tion] 2 was designed to restore the "results test" --
the legal standard that governed voting discrimination 
cases prior to our decision in Mobile v. Bolden, 446 
U.S. 55 (1980). S. Rep. 15-16. The Report notes that 
in pre-Bolden cases such as [White v.] Regester, 412 
U.S. 755 (1973), and Zimmer [v. McKeithen], 485 F. 2d 
1297 ([5th Cir.] 1973), plaintiffs could prevail by 
showing that, under the totality of the circumstances, 
a challenged election law or procedure had the effect 
of denying a protected minority an equal chance to 
participate in the electoral process. 

The phrase Congress chose to place in subsection (b) "to 

participate in the political process and to elect representatives 



- 12 - 

of their choice" -- is derived from the Supreme Court's formula-

tion of the racial dilution test in White v. Regester, 412 U.S. 

755 (1973). In White, the Court, when reviewing a racial 

challenge to the election of state representatives, said, "The 

plaintiffs' burden is to produce evidence to support findings 

that the political processes leading to nomination and election 

were not equally open to participation by the group in question 

-- 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." Id. at 766.5/ Subsequent 

case law, including Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 

1973), aff'd sub nom. East Carroll Parish Sch. Board v. Marshall, 

424 U.S. 636 (1976) (per curiam), developed a series of factors 

relevant to proof of a Section 2 violation. Congress has stated 

clearly (S. Rep. No. 417, 97th Cong., 2d Sess. 27 (1982)) that 

the purpose of subsection (b) was to "embod[y] the test laid down 

by the Supreme Court in White [v. Regester]." This intent is 

totally inconsistent with the district court's conclusion that 

5/ The Supreme Court has rejected occasions to read narrowing 
constructions into the Voting Rights Act where those construc-
tions are not compelled by the legislative language or strong 
indications in the legislative history. For example in United  
States v. Sheffield Board of Comm'rs, supra, the Court held that 
jurisdictions which do not register voters are covered by 
language referring to "States or political subdivisions." Noting 
that the statutory language did not compel the exemption the 
Board of Commissioners was seeking, the Court held that the broad 
purposes of the Act required the Court to interpret the Act so as 
to permit it to reach actions which could result in discrimina-
tion against minorities in electoral procedures. 435 U.S. at 
126-128. 



- 13 - 

Congress intended paragraph (b) to narrow the coverage of Section 

2. 

The district court has focused solely on the word "represen-

tatives" to support the conclusion that Congress intentionally 

excluded judicial elections from Section 2 when it amended the 

Act. See Op. 6. There is nothing to support the argument, and 

the court cited nothing to show, that Congress chose that word in 

order to give the Act a narrower construction. Both the Senate 

Report (see S. Rep. No. 417, supra, at 16, 28, 30, 32, 67; see 

also comments of Sen. Hatch, at 100) and members in the floor 

debate (see, e.g., 128 Cong. Rec. 14132 (comments of Sen. Dole), 

14133 (Sen. Thurmond) (1982)) use the term "representatives" 

interchangeably with "candidates" when discussing revised Section 

2, indicating that the term "representatives" was not considered 

a narrowing term of art. The mere use of the word "representa-

tives" cannot carry the force the district court would give it../ 

The district court stated that because most of the congres-

sional discussion centers on legislative elections and not 

judicial elections, the court may presume Congress did not intend 

to cover judicial elections when it amended Section 2 (Op. 6-7). 

6/ The district court stated that the meaning of the term 
"representatives" is clear and unambiguous, so that reference to 
the legislative history of the 1982 revisions to Section 2 is 
unnecessary. Op. 6. In our view, the use of the term "represen-
tatives" hardly "clearly and unambiguously" excludes the popular 
election of judges. Had Congress truly intended specifically to 
exclude judicial elections from Section 2 coverage, it would have 
been easy to do so with clear language. Indeed, Congress' 
decision to replace the word "legislators" in White with the word 
"representatives" evidences a desire to cover more than legislators. 



- 14 - 

However, the legislative history of the 1982 revisions and of 

earlier congressional considerations of the Voting Rights Act 

demonstrate that Congress was repeatedly made aware that in some 

states judges were elected by popular vote. 

The legislative history of the 1982 amendments, particularly 

the hearings on the various bills to extend or amend the Act, has 

many references to the fact that judges are elected in some 

states. See, e.g., Extension of the Voting Rights Act, Hearings 

on H.R. 1407, H.R. 1731, H.R. 2942, and H.R. 3112, H.R. 3198, 

H.R. 3473, and H.R. 3948 Before the Subcomm. on Civil and Consti-

tutional Rights of the House Committee on the Judiciary, 97th 

Cong., 1st Sess. 38, 193, 239, 280, 503, 574, 804, 937, 1182, 

1188, 1515, 1528, 1535, 1745, 1839, 2647 (1981). The Senate 

hearings received much of the same sort of material. See Voting 

Rights Act, Hearings 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. 208-209, 669, 748, 

788, 789 (1982).2/ 

2/ Congress had been given similar information prior to passage 
of the Act in 1965 and its extensions in 1970 and 1975. For 
example, in 1965, when the Voting Rights Act was first enacted, 
there were remarks made on the floor of the Congress which 
indicated that judges in some states were elected. See, e.g., 
111 Cong. Rec. 15722-15723 (1965) (comments of Rep. Callaway) (in 
Georgia in 1964, "[t]here were uncontested state elections for 37 
superior court judges, * * * 3 supreme court justices, and 2 
appellate justices"). When extensions of the Act were con-
sidered, Congress was repeatedly made aware of advances blacks 
have made under the Voting Rights Act, and the charts which 
documented those advances have always included judges in the list 
of black elected officials. See, e.g., 115 Cong. Rec. 38493 
(1969). When the extension of the Act was considered in 1975, 
House Judiciary Committee Report No. 94-196 referred to documen-



- 15 - 

In separate comments in the Senate Report, Senator Hatch 

stated that the term "'political subdivision' encompasses all 

governmental units, including * * * judicial districts * * *." 

S. Rep. No. 417, supra, at 151. The district court discounted 

this reference, stating that Senator Hatch meant "to be argu-

mentative and persuasive" and did not "mean[] to define [the] 

actual scope of the Act." Op. 7 n. 5. To the contrary, there is 

no reason to think that Senator Hatch meant anything more than to 

indicate his understanding of the coverage of the Act, and to try 

to convince other Senators that revised Section 2 would have a 

broad effect of the Act on the types of elections, including 

judicial elections, he had described. There was no indication 

from proponents of the Act that they disagreed with his descrip-

tion of its breadth.8/ Thus, Congress knew that judicial 

tation describing the advances blacks had made in elected 
positions since the Act was originally passed in 1965. See H.R. 
Rep. No. 196, 94th Cong., 1st Sess. 7 (1975). The documentation 
on which the Report relied listed "Judges, Justices, Magistrates" 
as one entry on the list of elected officials. See also 121 
Cong. Rec. 16241 (1975). In addition, the Assistant Attorney 
General for the Civil Rights Division, which preclears voting 
changes under Section 5, testified at hearings each time Congress 
was considering extending the Voting Rights Act. On each 
occasion, the Assistant Attorney General submitted documentation 
regarding Section 5 submissions, which included references to 
matters involving judicial elections. See, e.g., Extension of 
Voting Rights Act, Hearings on H.R. 939, H.R. 2148, H.R. 3247, 
and H.R. 3501 Before the Subcomm. on Civil and Constitutional 
Rights of the House Comm. on the Judiciary, 94th Cong., 1st Sess. 
183 (1975); 1982 Hearings on H.R. 1407, H.R. 1731, H.R. 2942, 
H.R. 3112, H.R. 3198, H.R. 3473, and H.R. 3948, supra, at 2247, 
2260. 

g/ In Sheffield Board of Comm'rs, supra, the Supreme Court 
relied in part upon a statement made by an opponent of the 
language ultimately enacted, and the lack of disagreement by 
other members with his description of the Act, as an accurate 



- 16 - 

elections were among those which the Act would cover. Given such 

knowledge, Congress must be presumed to have intended to include 

judicial elections absent a clear indication that it intended to 

exclude them. There are no such indications anywhere in the 

legislative history. 

The district court also held that the term "representatives" 

excludes judges because judges do not "represent" people, but 

interpret the law. See Op. 6. While it is certainly true that 

judges do not represent voters in the same way that legislators 

do, the term does not exclude judges. As the district court 

found in Martin v. Allain, 658 F. Supp. 1183, 1200 (S.D. Miss. 

1987), the term "representatives" may readily apply to judges 

elected by popular vote: 

The use of the word "representatives" in 
Section 2 is not restricted to legislative 
representatives but denotes anyone selected 
or chosen by popular election from among a 
field of candidates to fill an office, 
including judges. Mississippi has chosen to 
hold elections to fill its state court 
judicial offices; therefore, it must abide by 
the Voting Rights Act in conducting its 
judicial elections, including Section 2 of 
the Voting Rights Act. 

While judges do not have constituents whose views they must 

consider in carrying out their judicial responsibilities, when 

judges are popularly elected it is anticipated that voters will 

select those who best represent their own judicial philosophy. 

Presumably, that is the reason for allowing the voters to make 

indication of congressional intent. See 435 U.S. at 130. 
Similarly, here there is no reason to discount Senator Hatch's 
statement that Section 2 would reach judicial elections. 



- 17 - 

the choice. In that limited sense, judges are indeed representa-

tives.2/ 

C. One person, one vote principles do not exempt judicial  
elections from Section 2 coverage  

The district court also relied on Wells v. Edwards, 347 

F. Supp. 453 (M.D. La. 1972), aff'd, 409 U.S. 1095 (1973), as 

support for its holding that judicial elections are not covered 

by Section 2. In Wells, the plaintiff sought reapportionment, 

under one person, one vote principles, of the Louisiana Supreme 

Court Judicial Districts. The district court denied relief, 

holding that one person, one vote principles do not apply to 

judicial elections. 347 F. Supp. at 454. The court here stated 

that Wells "addressed a voting rights claim arising out of the 

same claims of discrimination as in this case" (Op. 4), and 

relied on the finding of Wells that judges are not "represen-

tatives" to support its conclusion that judicial elections are 

not subject to Section 2. Op. 8. The district court both 

misstates the holding in Wells and misapplies the actual holding 

to the allegations made here.10/ 

First, contrary to the district court's holding, plaintiffs 

here are not making the same claims as were made in Wells. 

2/ A crabbed reading of the term "representatives" would also 
exclude elected officials of the Executive branch, which is 
clearly incorrect. See Op. 5 n. 3 (citing decision that prosecu-
tors are not "representatives" either). 

10/ Here again, moreover, the district court's argument proves 
too much since it would exclude those officials who are not 
subject to the one person, one vote rule. See Op. 5 n. 3; Ball  
v. James, 451 U.S. 355 (1981); Hadley v. Junior College District, 
397 U.S. 50, 56 (1970). 



- 18 - 

Plaintiffs in Wells did not claim racial discrimination, but only 

that the judicial districts in question were malapportioned. 

Plaintiffs here are not seeking reapportionment of all districts 

under one person, one vote principles, but rather are seeking a 

remedy for racial dilution allegedly caused by the at-large 

election of two justices in the First District. The population 

deviations between districts have nothing to do with plaintiffs' 

claim here, and a remedy would not, for instance, require reap-

portionment of other districts. 

Second, this Court has already found that Wells, and the one 

person, one vote principles expressed in the case, are inappli-

cable to claims of racial dilution. Voter Information Project v. 

City of Baton Rouge, supra. As explained in Reynolds v. Sims, 

377 U.S. 533, 563 (1964), the doctrine of one person, one vote 

addressed claims that electoral systems which weighted votes 

differently based on the place of the voter's residence were 

unconstitutional. In Voter Information Project, supra, this 

Court rejected the applicability of one person, one vote princi-

ples, and the Wells case itself, to questions of racial discrim-

ination.11/ "[T]he various 'one man, one vote' cases involving 

11/ The defendants in Haith v. Martin, supra, had argued that 
Congress had not intended to subject the election of judges to 
Section 5 scrutiny because judicial elections are not subject to 
one person, one vote analysis, and because judges do not exert 
the same governmental authority as persons in the legislative 
branch. 618 F. Supp. at 412-413. The district court properly 
concluded that neither distinction was relevant for purposes of 
determining whether Congress had, by the language of Section 5, 
subjected judicial elections to scrutiny under the Voting Rights 
Act. Ibid.  



- 19 - 

Judges make clear that they do not involve claims of race 

discrimination as such." 612 F.2d at 211 (emphasis in original). 

Decisions involving nonracial constitutional claims of malappor-

tionment simply cannot determine the scope of a statute passed by 

Congress to combat racial discrimination in voting.12/ 

D. The differences in how Section 2 applies to judicial  
elections should be left for the district court to  
consider on remand  

None of this is to say, however, that judicial elections are 

covered by Section 2 in precisely the same way as other elections 

are. The differing function of judges from other elected 

officials makes different the range of factors to be considered 

in determining if a Section 2 violation has occurred. For 

instance, "responsiveness" to minority voters is a legitimate 

factor to consider for legislators, but would not appear to be 

12/ The Supreme Court consistently has distinguished between the 
equal protection principles that apply to apportionments under 
the one person, one vote doctrine and electoral systems that 
discriminate on the basis of race. In White v. Regester, supra, 
the Court reversed the district court's determination that a 1970 
reapportionment plan for the Texas House of Representatives 
violated the one person, one vote principle of Reynolds v. Sims, 
supra, but it sustained the lower court's finding that multimem-
ber districts in Dallas and Bexar Counties unlawfully diluted the 
voting strength of blacks and Hispanics. See also Whitcomb v. 
Chavis, 403 U.S. 124, 142-143 (1971); Davis v. Bandemer, 54 
U.S.L.W. 4898, 4901 (U.S. June 30, 1986); and Gaffney v. 
Cummings, 412 U.S. 735, 751 (1973) ("A districting plan may 
create multimember districts perfectly acceptable under equal 
population standards, but invidiously discriminatory because they 
are employed 'to minimize or cancel out the voting strength of 
racial or political elements of the voting population" (cita-
tions omitted)). 



- 20 - 

for judges. Determining the appropriateness of single member 

district relief will, we think, differ for judges as wel1.12/ 

This issue was not, of course, addressed below, and indeed 

it may not arise even on remand. The precise range of the 

difference in treatment between judges and other officials raises 

difficult problems, and we think they are best addressed in a 

concrete factual setting. Accordingly, this Court should caution 

the lower court that, while judges are covered by Section 2, they 

do perform a unique function, and the lower court should flesh 

out any relevant facts on this issue on remand. See Voter  

Information Project, supra, 612 F.2d at 212 n. 5 (leaving 

question of appropriateness of plaintiffs' proposed single-member 

)2/ The one person, one vote cases are relevant to the limited 
extent that they recognize that judges have this differing 
function. 



- 21 - 

district scheme for remand) .j4/ The United States plans to seek 

leave to participate in the remand as amicus. 

CONCLUSION 

For the reasons stated herein, this Court should vacate the 

district court's judgment and order the district court to 

reinstate the complaint. 

Respectfully submitted, 

WM. BRADFORD REYNOLDS 
Assistant Attorney General 

ROGER CLEGG 
Deputy Assistant Attorney General 

JESSICA DUNSAY SILVER 
MARK L. GROSS 

Attorneys 
Department of Justice 
Washington, D.C. 20530 
(202) 633-2172 

1A/ The district court also dismissed plaintiffs' claim that the 
electoral system in the First District violated the Fourteenth 
and Fifteenth Amendments. The court held that although plain-
tiffs properly alleged that defendants' action had the "purpose 
and effect" of diluting black voting strength, the court was of 
the "considered opinion, based on the complaint as a whole, that 
plaintiffs intend to prove this claim based on a theory of 
'discriminatory effect' and not on a theory of 'discriminatory 
intent." Op. 12. 

The court was certainly correct in stating that it will be 
necessary for plaintiffs to prove discriminatory intent to prove 
a violation of the Fourteenth and Fifteenth Amendments. See, 
e.g., Washington v. Davis, 426 U.S. 229, 239-241 (1976). 
However, plaintiffs alleged in their complaint that defendants 
acted with discriminatory purpose and alleged facts sufficient to 
prove a claim of purposeful dilution. The Supreme Court has 
found, moreover, that the dilution factors are highly relevant in 
proving a claim of invidious motivation. Rogers v. Lodcle, 458 
U.S. 613, 616-622 (1982). The complaint should not have been 
dismissed on the court's assumption that plaintiffs would not be 
trying to prove their case, as set forth in their pleadings. 



CERTIFICATE OF SERVICE 

I hereby certify that I served the foregoing Brief for the 

United States as Amicus Curiae on parties to this appeal by 

mailing two copies to each counsel listed below: 

Pamela S. Karlan, Esq. 
99 Hudson Street 
16th Floor 
New York, New York 10013 

Kendall Vick, Esq 
Assistant Attorney General 
Louisiana Department of Justice 
234 Loyola Avenue 
7th Floor 
New Orleans, Louisiana 70112 

M. Truman Woodward, Jr., Esq. 
1100 Whitney Building 
New Orleans, Louisiana 70130 

Blake G. Arata, Esq. 
210 St. Charles Avenue 
Suite 4000 
New Orleans, Louisiana 70170 

A.R. Christovich, Esq. 
1900 American Bank Building 
New Orleans, Louisiana 70130 

Moise W. Dennery, Esq. 
21st Floor Pan American Life Center 
601 Poydras Street 
New,Orleans, Louisiana 70130 

Mark L. Gross 
Attorney 
Department of Justice 

This 30th day of July, 1987.