Wright v. Georgia Reply Brief in Opposition to Petition for Writ of Certiorari

    JPT:LLT:KIF:gmh 
DJ 166-012-3 
Z0854 
Z0886-0892; Z2757-2761 
Z0945-0950; Z2762-2768 
Z0970-0975; Z2769-2770 
Z1469 
Z2570-2571; Z2771-2772 

October 10, 1989 

Honorable William J. Guste, Jr. 
Attorney General 
State of Louisiana 
P.O. Box 94005 
Baton Rouge, Louisiana 70804-9005 

Dear Mr. Attorney General: 

This refers to the following provisions for the State 
of Louisiana, submitted to the Attorney General pursuant to 
Section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 
1973c: 

Act No. 844, S.B. No. 68 (1989), which increases the number 
of required court of appeal circuits from four to five; permits 
the legislature to establish senior judge positions for circuit 
courts of appeal by converting elective positions into non-
elective positions and provides procedures therefor; permits the 
legislature to change the method of electing or selecting judges 
for the districts of the courts of appeal, including the use of 
election sections in each court of appeal district; permits 
change in method of election for judges in judicial district 
court districts, including the use of election sections in each 
district; permits the legislature to establish senior judge 
status for judicial district court, parish court, and city court 
judges by converting elective positions into non-elective 
positions and provides procedures therefor; permits the 
legislature to change the method of electing or selecting all 
judges; changes the procedures for filling any newly-created 
judgeship or vacancy in the office of any judge to provide that 
such position or vacancy be filled by special election held 
within 18 months, rather than 12 months, from the day on which 
the position is established or the vacancy occurs, except as 



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specified, and that the governor shall fill a vacant position by 
appointment until the vacancy is filled by election; provides 
procedures for altering the provisions regarding appointment by 
the governor; prohibits an appointee for a new or vacant 
judgeship position, other than courts of appeal, from running as 
a candidate in the special election to fill the position; permits 
an appointee to a new or vacant court of appeal judgeship 
position to run as a candidate in the special election to fill 
the position; permits the legislature to provide for filling 
vacancies in court of appeal judgeships; provides an 
implementation schedule; and provides for a special election 
October 7, 1989, regarding the provisions of Act No. 844 that 
propose to amend Article 5 of the Louisiana Constitution; 

Act No. 839, S.B. No. 785, and Act No. 838, S.B. No. 766 
(1989), which provide procedures for redistricting election 
districts for the circuit courts of appeal and judicial district 
courts after each decennial Census; and provide for the filling 
of vacancies in circuit court and judicial district court 
judgeship positions through the use of nominating panels and the 
procedures therefor, including the mandate that the gubernatorial 
appointee to the vacancy be selected from the nominees selected 
by the nominating panel and that the Louisiana Supreme Court 
assign a senior status judge or a retired judge to the vacant 
position until it is filled by the governor; 

Act No. 839, S.B. No. 785 (1989), which converts specified 
elective district court and family court judgeship positions into 
non-elective senior judge positions, with the procedures 
therefor; creates election sections for specified judicial 
district court and family court districts and the districting 
plans therefor; creates additional elective district court 
judgeship positions; designates judicial positions to specified 
election sections; and provides an implementation schedule; 

Act No. 838, S.B. No. 766 (1989), which creates election 
subdistricts and sections for the circuit courts of appeal in 
specified judicial districts and the districting plans therefor; 
eliminates circuitwide judgeship positions and redesignates such 
positions to specified districts and sections; creates additional 
elective circuit court judgeship positions; converts specified 
elective circuit court judgeships into non-elective senior judge 
positions, with the procedures therefor; designates judicial 
positions to specified election districts and sections; provides 
that the terms of certain judicial positions will expire on 
December 31, 1992; and provides an implementation schedule; 



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Sections 1(A), 1(B), 4(A), and 4(B) of Act No. 611, S.B. 
No. 251 (1989), which provide for certain additional elective 
judgeship positions; 

Sections 2(A) and 2(B) of Act No. 611, S.B. No. 251 (1989), 
which create an additional at-large judgeship (Division D) for 
the 34th Judicial District Court and an implementation schedule 
therefor; 

Sections 3(A) and 3(B) of Act No. 611, S.B. No. 251 (1989), 
and Act No. 608, H.B. No. 1729 (1989), which provide for an 
additional at-large judgeship position (Division C) in the 40th 
Judicial District; 

Act No. 174, S.B. No. 310 (1989), which provides for an 
additional at-large judgeship position in the 26th Judicial 
District; 

Act No. 18, H.B. No. 30 (1989), which provides that a 
special election shall be held for a vacancy in an existing 
judgeship position if more than 18 months, rather than 12 months, 
remain in the term, and mandates dates for scheduling special 
elections to fill newly-created or unexpired terms in judgeship 
positions, as long as the election for the unexpired term is held 
within 18 months after the day that the vacancy occurs; and 

Act No. 17, H.B. No. 14 (1989), which amends Act No. 839, 
S.B. No. 785 (1989), to convert an additional judgeship position 
to eligibility for senior judge status. 

We received your submissions on August 10, 11, and 18, 1989; 
supplemental information was received October 2, 1989, concerning 
Act Nos. 838, 611, and 608 (1989) and October 10, 1989, 
concerning Act Nos. 608, 611, and 174 (1989). 

With regard to Sections 2(A) and 2(B) of Act No. 611 (1989), 
which create an additional at-large judgeship (Division D) for 
the 34th Judicial District Court and an implementation schedule 
therefor, the Attorney General does not interpose any objection 
to the changes. However, we note that the failure of the 
Attorney General to object does not bar subsequent judicial 
action to enjoin the enforcement of the changes. See the 
Procedures for the Administration of Section 5 (28 C.F.R. 51.41). 



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With regard to the October 7, 1989, special election 
pursuant to Act No. 844 (1989), our analysis indicates that this 
change received the requisite preclearance on September 29, 1989. 
Accordingly, no further determination by the Attorney General is 
required or necessary with regard to this matter. See also 
28 C.F.R. 51.35. 

The information you have provided indicates that the 
provisions of Act Nos. 844, 839, 838, 18, and 17 (1989) are 
dependent on voter approval of the constitutional referendum 
pursuant to Act No. 844 (1989) in the October 7, 1989 special 
election and that Sections 1(A), 1(B), 4(A), and 4(B) of Act 
No. 611 (1989) are dependent on the provisions of Act Nos. 838 
and 839 (1989) becoming law. Members of your staff have advised 
us that the constitutional referendum was defeated, and, 
accordingly, •none of these proposed amendments nor the dependent 
and related provisions are capable of implementation and will not 
become law. Accordingly, no determination by the Attorney 
General is required or appropriate concerning these matters. 
See 28 C.F.R. 51.35. 

We note that many of the provisions of Act Nos. 844, 839, 
838, 18, and 17 (1989) were adopted in large part to remedy the 
violations of Section 2 of the Voting Rights Act, 42 U.S.C. 1973, 
found in Clark v. Roemer, No. 86-435-A (M.D. La.) (orders of 
Aug. 15 and 31, 1988). We understand that several of these 
remedial provisions are capable of final adoption and 
implementation under state law without voter approval of a 
constitutional amendment. Should the state decide to enact or 
implement any of these provisions independent of constitutional 
amendments, any voting changes that are adopted will, of course, 
be subject to the Section 5 preclearance requirements. Should 
the state decide to submit such changes to the Attorney General 
for review pursuant to Section 5, we will at that time proceed to 
a substantive review of the changes. 

With regard to the changes concerning the 26th and 40th 
Judicial Districts adopted by Act No. 174 (1989), Act No. 608 
(1989), and Sections 3(A) and 3(B) of Act No. 611 (1989), our 
analysis indicates that the information sent is insufficient to 
enable us to determine that the proposed 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. Therefore, please 
provide the following information: 



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1. A detailed explanation of the reasons for adding 
at-large judicial positions to be filled in election systems 
that were found to violate Section 2 of the Voting Rights Act in 
Clark v. Roemer, supra. Since the state's plan to remedy the 
Section 2 violations was dependent on a constitutional referendum 
that failed to win voter approval in the October 7, 1989, special 
election, explain what steps, if any, the state now plans to take 
to remedy the existing racially discriminatory election systems 
in the 26th and 40th Judicial Districts. 

2. A description of any alternative election system that 
has been considered or discussed, whether formally or informally, 
for the 26th and 40th Judicial Districts. Describe the manner in 
which each alternative originated, the circumstances in which it 
was considered, and the reasons why it was rejected. Provide 
copies of all notices, newspaper articles and editorials, and any 
other publicity concerning the proposed changes. 

3. A description of all formal or informal opportunities 
afforded members of the minority community to participate in the 
development and formulation of the proposed changes. Include the 
name, address, and daytime telephone number of any minority 
person or organization making suggestions or objections, the 
substance of each comment, and the action, if any, taken in 
response. If no action was taken, provide an explanation. 

The Attorney General has sixty days in which to consider a 
completed submission pursuant to Section 5. This sixty-day 
review period with respect to these 26th and 40th Judicial 
District changes will begin when this Department receives the 
information necessary for the proper evaluation of the changes 
you have submitted. 28 C.F.R. 51.37(a). Further, you should be 
aware that if no response is received within sixty days of this 
request, the Attorney General may object to the proposed changes 
consistent with the burden of proof placed upon the submitting 
authority. 28 C.F.R. 51.40. Therefore, please inform us of the 
course of action the State of Louisiana plans to take to comply 
with this request. 

If you have any questions concerning the matters discussed 
in this letter or if we can aid you in any way to obtain the 
additional information we have requested, feel free to call 
Ms. Karrissa Freeman (202-724-7390) of our staff. Refer to File 
Nos. Z0854 and Z2570 in any response to this letter so that your 
correspondence will be channeled properly. 



*,. 

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

Sincerely, 

James P. Turner 
Acting Assistant Attorney General 

Civil Rights Division 

By: 

Barry H. Weinberg 
Acting Chief, Voting Section 

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

Ms. Leah Barron 
Louisiana State Senate