Motion for Leave to File a Supplemental Reply Brief; Supplemental Reply Brief for Plaintiffs-Appellants Ronald Chisom, et al.

    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. 

MOTION FOR LEAVE TO FILE A 
SUPPLEMENTAL REPLY BRIEF  

Appellants Ronald Chisom, et al., hereby move for leave to 

file a supplemental reply brief. 

1. On November 30, 1987, the Louisiana District Judges 

Association (LDJA) filed a motion to file a brief amicus curiae  

out of time. 1 

2. That motion was granted by this Court on December 3, 

1987, the same day that appellants received LDJA's proposed 

1 Briefs amici curiae in support of appellees were due by 
September 21, 1987. In its motion for leave to file, LDJA 
acknowledged that on August 12, 1987, it had filed a motion to 
stay the proceedings in its case in light of the pendency of 
Chisom v. Edwards in this Court. Appellants therefore see no 
reason why LDJA waited until November 30, 1987, several months 
after the proper time and less than two weeks prior to oral 
argument, to seek to file a brief here. 

O'vk 



brief. 2 

3. Although much of the argument in LDJAis brief mirrors 

the analysis put forward in the briefs of appellees and other 

amici, appellants believe that the Court would benefit from a 

response to particular points in LDJA's brief. 

4. A copy of appellants' proposed supplemental reply brief 

accompanies this motion. 

WHEREFORE, appellants ask that this Court permit them to 

file a supplemental reply brief. 

Res ectfully submitted, 

Cando, G[Ca.  

WILLIAM P. QUIGLEY 
631 St. Charles Avenue 
New Orleans, LA 70130 
(504) 524-0016 

ROY J. RODNEY, JR. 
643 Magazine Street 
New Orleans, LA 70130 
(504) 586-1200 

Dated: December 4, 1987 

JULIUS L. CHAMBERS 
CHARLES STEPHEN RALSTON 
C. LANI GUINIER 
PAMELA S. KARLAN 

99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 219-1900 

RON WILSON 
Richards Building, Suite 310 
837 Gravier Street 
New Orleans, LA 70112 
(504) 525-4361 . 

Counsel for Plaintiffs-
Appellants 

2 Neither Pamela S. Karlan nor William P. Quigley, 
counsel for appellants, was in fact served with a copy of the 
motion to file. Counsel obtained the motion by telephoning 
counsel for LDJA on December 4, 1987. 

2 



• 

CERTIFICATE OF SERVICE 

I, Pamela S. Karlan, hereby certify that on December 4, 

1987, I served copies of the foregoing motion upon the attorneys 

listed below via United States mail, first class, postage 

prepaid: 

Kendall L. Vick, Esq. 
Asst. Atty. General 
La. Dept. of Justice 
234 Loyola Ave., Suite 700 
New Orleans, LA 70112-2096 

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

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

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

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

Mark Gross, Esq. 
Civil Rights Division, Voting Section 
U.S. Department of Justice 
Room 5718 
10th Street & Pennsylvania Ave., N.W. 
Washington, D.C. 20530 

Paul D. Kamener, Esq. 
Washington Legal Foundation 
1705 N Street, N.W. 
Washington, D.C. 20036 

Michael H. Rubin, Esq. 
Rubin, Curry, Colvin & Joseph 

3 



Suite 1400 
One American Place 
Baton Rouge, LA 70825 

Pamela S. Karlan 
Counsel for Plaintiffs-
Appellants 



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. 

SUPPLEMENTAL REPLY BRIEF FOR PLAINTIFFS-
APPELLANTS RONALD CHISOM, ET AL.  

WILLIAM P. QUIGLEY 
631 St. Charles Avenue 
New Orleans, LA 70130 
(504) 524-0016 

ROY J. RODNEY, JR. 
643 Magazine Street 
New Orleans, LA 70130 
(504) 586-1200 

JULIUS L. CHAMBERS 
CHARLES STEPHEN RALSTON 
C. LANI GUINIER 
PAMELA S. KARLAN 

99 Hudson Street, 16th Floov 
New York, NY 10013 
(212) 219-1900 

RON WILSON 
Richards Building, Suite 310 
837 Gravier Street 
New Orleans, LA 70112 
(504) 525-4361 

Counsel for Plaintiffs-
Appellants 



t_ 

TABLE OF CONTENTS  

Page  

I. Judicial Elections May Be Scrutinized Under 
the Voting Rights Act   1 

II. LDJA's Argument Concerning Single-Member Districts 
Is Not Properly Before This Court   4 

Conclusion   4 

Certificate of Service   6 



TABLE OF AUTHORITIES  

Page  

Chandler v. Roudebush, 425 U.S. 840 (1976)   3 

City of Mobile v. Bolden, 446 U.S. 55 (1980)   2 

Dillard V. Crenshaw County, Ala., 831 F.2d 
246 (11th Cir. 1987)   3 

Martin v. Haith, U.S. , 91 L.Ed.2d 559 (1986) .   2 

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

Voting Rights Act, § 2, 42 U.S.C. § 1973  Dassim 

Voting Rights Act, § 5, 42 U.S.C. § 1973c   2 

Voting Rights Act, § 14, 42 U.S.C. § 19731   3 

S. Rep. No. 97-417 (1982)   3 

ii 



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. 

APPELLANTS' SUPPLEMENTAL REPLY BRIEF 

In its amicus brief in support of appellees, the Louisiana 

District Judges Association (LDJA) makes essentially two 

arguments. First, it argues that the 1982 amendments to the 

Voting Rights Act of 1965, which reinstated the results test, did 

so only with respect to elections for particular offices. See 

LDJA Brief at 1, n. 3. Second, it argues that the election of 

judges from single-member districts would undermine the necessary 

independence of the judiciary. Amicus' first argument is 

meritless; their second argument is irrelevant to this case. 

I. Judicial Elections May Be Scrutinized Under 
the Voting Rights Act 

LDJA ackowledges, as it must, that this Court has held that 

claims of racial vote dilution in judicial elections are 



cognizable under the United States Constitution, despite the 

distinctive governmental role played by the judiciary. Voter 

Information Project v. City of Baton Rouge, 612 F.2d 208 (5th 

Cir. 1980). See LDJA Brief at 1. Thus, what LDJA terms the 

"unique position of a state judiciary," LDJA Brief at 3, quite 

simply cannot justify insulating claims of racial vote dilution 

from the kind of scrutiny accorded other challenged elections. 

LDJA also ackowledges that section 2 of the Voting Rights 

Act, at the time this Court decided Voter Information Project, 

was coextensive with the Fifteenth Amendment. City of Mobile v.  

Bolden, 446 U.S. 55, 61 (1980) (plurality opinion). Thus, today, 

as in 1980, claims of intentional racial vote dilution in 

judicial elections are cognizable under section 2 of the Voting 

Rights Act. See LDJA Brief at 1. 

Where LDJA's analysis falters is in its claim that the 1982 

amendments to section 2 were intended to reinstate a results test 

for only a subset of the elections covered by the Voting Rights 

Act. 1 See LDJA Brief at 1, n. 3. That claim depends entirely on 

the presence of the word "representatives" in section 2(b). 

As appellants have already shown, nothing in the legislatilh: 

history of the 1982 amendments even remotely suggests that 

Congress chose the word "representatives" to limit the kinds of 

elections covered by section 2. See. e.g., Brief of Appellants 

1 The Supreme Court has already held that section 5 of 
the Voting Rights Act covers judicial elections. Martin v.  
Haith, U.S. , 91 L.Ed.2d 559 (1986). 

2 



at 16-17; Reply Brief for Appellants 3-4. The Act's general 

definition of "voting" reaches "any election" at which votes are 

"cast with respect for public or party office," Voting Rights 

Act, § 14(c)(1) (emphasis added). Thus, the Court of Appeals for 

the Eleventh Circuit recently concluded: 

Nowhere in the language of Section 2 nor in the 
legislative history does Congress condition the 
applicability of Section 2 on the function performed by 
an elected offical. The language is only and 
uncompromisingly premised on the fact of nomination and 
election. 

Dillard V. Crenshaw County, Ala., 831 F.2d 246, 250-51 (11th Cir. 

1987). 

Moreover, Congress clearly stated that whether or not a 

discriminatory purpose can be shown is irrelevant to section 2. 

See S. Rep. No. 97-417, pp. 16, 36-37 (1982). Thus, LDJA has no 

basis for its attempt to differentiate sections 2(a) and 2(b), 

particularly given their explicit cross-references to one 

another. To read the word "representatives" to protect racially 

discriminatory systems for electing judges flies in the face of 

both the structure and the purpose of the Voting Rights Act and 

its amendments •and thereby violates an elementsry canon of 

statutory construction, that 

the plain, obvious and rational meaning of a statute is 
always to be preferred to any curious, nalrow, hidden 
sense that nothing but the exigency of a hard case and 
the ingenuity and study of an acute and powerful 
intellect would discover. 

Chandler v. Roudebush, 425 U.S. 840, 848 (1976) (internal 

quotation marks omitted). Here, Congress' plain intention in 

3 



amending section 2 was to create a results test for all elections 

through which candidates for public office are chosen. 

II. LDJA's Argument Concerning Single-Member 
Districts Is Not Properly Before This Court 

The judicial system at issue in this case consists of five 

justices elected from single-member districts and two justices 

elected from a multi-member district. Thus, the State of 

Louisiana has already decided that electing members of its 

Supreme Court from individual geographic jurisdictions does not 

jeopardize the judicial independence of its Supreme Court, the 

only court whose electoral scheme is currently before this Court. 

It would therefore be inappropriate for this Court to consider 

the question whether other judicial election schemes violate the 

Voting Rights Act. Moreover, given the procedural posture of 

this case, it would be inappropriate for this Court to speculate 

as to the proper remedy in this case, should appellants 

ultimately establish liability on either their statutory or 

constitutional claims. 

Conclusion 

This Court should reverse- the judgment of the district court 

on appellants' statutory and constitutional claims. 

Respectfully submitted, 

4 



WILLIAM P. QUIGLEY 
631 St. Charles Avenue 
New Orleans, LA 70130 
(504) 524-0016 

ROY J. RODNEY, JR. 
643 Magazine Street 
New Orleans, LA 70130 
(504) 586-1200 

Dated: December 4, 1987 

JULIUS L. CHAMBERS 
CHARLES STEPHEN RALSTON 
C. LANI GUINIER 
PAMELA S. KARLAN 

99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 219-1900 

RON WILSON 
Richards Building, Suite 310 
837 Gravier Street 
New Orleans, LA 70112 
(504) 525-4361 

Counsel for Plaintiffs-
Appellants 



CERTIFICATE OF SERVICE 

I, Pamela S. Karlan, hereby certify that on December 4, 

1987, I served copies of the foregoing brief upon the attorneys 

listed below via United States mail, first class, postage 

prepaid: 

Kendall L. Vick, Esq. 
Asst. Atty. General 
La. Dept. of Justice 
234 Loyola Ave., Suite 700 
New Orleans, LA 70112-2096 

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

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

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

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

Mark Gross, Esq. 
Civil Rights Division, Voting Section 
U.S. Department of Justice 
Room 5718 
10th Street & Pennsylvania Ave., N.W. 
Washington, D.C. 20530 

Paul D. Kamener, Esq. 
Washington Legal Foundation 
1705 N Street, N.W. 
Washington, D.C. 20036 

6 



• 
Michael H. Rubin, Esq. 
Rubin, Curry, Colvin & Joseph 
Suite 1400 
One American Place 
Baton Rouge, LA 70825 

Pamela S. Karlan 
Counsel for Plaintiffs-
Appellants