Correspondence from Cunningham to Ganucheau; Reply Brief for Plaintiffs-Appellants

    UmPinA :B. 

NAACP LEGAL DEFENSE 
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Dear Mr. Gancheau: 

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New York, N.Y. 10013 (212) 219-1900 Fax: (212) 2264592.. 

March 19, 1990 

Chisom, et al. v. Roemer, et al. No. 89-3954 

Enclosed for filing please find an original and seven• copies of the plaintiffs-
appellants' reply brief in the above named case. Copies of the reply brief were served 

upon all counsel by first class mail today. 

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S IN THE • 
To 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

No. 89-3954 

RONALD CHISOM, et al., 

Plaintiffs-Appellants, 

UNITED STATES OF AMERICA, 

Plaintiff-Intervenor-Appellant, 

V. 

CHARLES E. ROEMER, 

Defendants-Appellees  

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

REPLY BRIEF FOR PLAINTIFFS-APPELLANTS 

WILLIAM P. QUIGLEY 
901 Convention Center Blvd. 
Fulton Place 
Suite 119 
New Orleans, LA 70130 
(504) 524-0016 

ROY RODNEY, JR. 
McGlinchey, Stafford, Mint; 

Cellini, Lang 
643 Magazine Street 
New Orleans, LA 70130 
(504) 586-1200 

PAMELA S. ICARLAN 
University of Virginia 
School of Law 
Charlottesville, VA 22901 
(804) 924-7810 

JULIUS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 
JUDITH REED 
DAYNA L. CUNNINGHAM 
SHERRILYN A. IFILL 
99 Hudson Street, 16th Floor 
New York, N.Y. 10013 
(212) 219-1900 

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

C. LANI GUINIER 
University of Pennsylvania 

School of Law 
3400 Chestnut Street 
Philadelphia, PA 19104-6204 



TABLE OF CONTENTS 

Page 

INTRODUCTION  1 

TABLE OF AUTHORITIES  1 

ARGUMENT  1 

I. Plaintiffs' Hypothetical District Satisfies All 
Relevant Apportionment Criteria for Louisiana 
Supreme Court Districts  1 

Racially Polarized Voting Can Exist Within an Effective 
Majority Black District  4 

III. There Is No Legal or Factual Basis for Applying Racial 
Polarization Analysis Differently in This Case than in 
Legislative Cases  5 

IV. Candidate Financing is not Independent of Race   8 

V. Black Voting Strength is Diluted When Blacks Do Not 
Have the Same Opportunity as Whites to Elect Candidates 
of Their Race  9 

CONCLUSION  11 



TABLE OF AUTHORITIES 

CASES 

Alleh v. Board of Elections, 
393 U.S. 544 (1969)   

Page  

10 

Anderson v. Martin, 
375 U.S. 399 (1964)   9 

Campos v. Baytown, 
840 F.2d 1240, 106 L. Ed. 2d 564 (June 26, 1989)   7 

Chapman v. Meier, 
420 U.S. 1 (1975)   2 

Chisom v. Edwards, 
839 F.2d 1056 (5th Cir. 1988), cert denied, 
102 L. Ed. 2d 379 (Nov. 14, 1988)   

Citizens for a Better Gretna v. City of Gretna, 
834 F.2d 496 (5th Cir. 1987) cert denied, 106 L. Ed. 2d 
564   7 

Clark v. Edwards, 
775 F. Supp. 285 (M.D. La. 1988)   5 

Connor v. Finch, 
431 U.S. 407 (1977)   2 

Dougherty County Board of Education v. White, 
439 U.S 32 (1978)   10 

Gomez v. City of Watsonville, 
863 F.2d 1407 (9th Cir. 1988) cert denied, 103 L. Ed. 2d 
839 (March 20, 1989)   6, 9 

Graves v. Barnes, 
446 F. Supp. 560 (W.D. Tex. 1977), affd, 435 U.S. 901 



LULAC v. Mattox, No. MO-88-CA-154 (W.D. Tex., Nov. 8, 1989)   5 

Martin v. Allain, 
658 F. Supp. 1183 (S.D. Miss 1987)   5, 8 

Thornburg v. Gingles, 
478 U.S. 30 (1986)   Passim 

Wells v. Edwards, 
347 F. Supp. 453 (M.D. La. 1972) aff'd, 409 U.S. 1095 
(1973)   1, 2 



S • 

INTRODUCTION 

This is not a case involving contested facts: the voluminous record consists almost 

entirely of stipulations. The actual testimony -- which involved solely the cross examination 

of expert witnesses and anecdotal accounts of continued barriers to black electoral 

participation — lasted less than two days. Thus defendants' suggestion that the trial court 

made unreviewable findings, of credibility is misleading. Nothing in the district court's 

opinion rests on a finding of credibility and the stipulated facts alone should have 

compelled the district court to find a violation of section 2. 

The district court's conclusions in this case were based on an erroneous view of the 

law that so tainted its findings of fact that it is difficult to separate its erroneous factual 

findings from its erroneous legal conclusions. The "clearly erroneous" standard does not 

inhibit this Court's power to "correct errors of law, including those that may infect a so-

called mixed finding of law and fact or a finding of facts that is a misunderstanding of the 

governing rule of law." Thornburg v. Gingles, 478 U.S. 30, 78-79 (1986). 

ARGUMENT  

I. Plaintiffs' Hypothetical District Satisfies All Relevant Apportionment Criteria for  

Louisiana Supreme Court Districts  

The United States Supreme Court has already held that the districts from which the 

Louisiana Supreme Court justices are elected need not comply with the one-person, one-

vote standard. Wells v. Edwards, 347 F. Supp. 453 (M.D. La. 1972) affd, 409 U.S. 1095 

(1973). See also Chisom v. Edwards, 839 F.2d 1056, 1060 (5th Cir. 1988), cert. denied 109 

102 L.Ed. 379 (1988). 



The current Louisiana Supreme Court scheme does not adhere in any way to the 

principles of equal population districts. Indeed, the entire Supreme Court apportionment 

scheme, with a total deviation between districts of 74.95% and an average deviation of 

19.55%, falls far short of the + 5% equal population standard referred to in the 

defendants' brief. The State of Louisiana's defense in Wells and its continued use of 

nonequipopulous districts, show that the current districts satisfy the State's apportionment 

criteria. Plaintiffs' hypothetical district also fits well within these criteria. 

By now asserting that the one-person, one-vote principle applies to judicial districts, 

defendants try to impose upon plaintiffs a standard that not a single existing Supreme 

Court district can meet. Indeed, if the one-person, one-vote principle did apply to the 

judiciary, the entire Supreme Court districting scheme would have to be reapportioned. 

While conceding that there are substantial deviations in, the existing Supreme Court 

districts, defendants try to avoid the inevitable consequences of this rule with an absurd 

caveat: "[w]here, districts are redrawn for voting rights purposes as for reapportionment 

purposes, there should be strict adherence to the plus or minus 5% standard." 

Defendants' Brief ("Deft. Brf") at 18. Defendants cite no support for this proposition. 

Indeed, in the context of section 2, there is none.1 Contrary to defendants' assertion, the 

1 The cases relied on by appellees for this proposition each involved court-ordered 
remedial plans stemming from constitutional challenges to legislative, rather than 
judicial, apportionment plans. The issues in those cases turned on the need to 
adhere strictly to the constitutional standard when courts usurp legislative functions 
and order an apportionment remedy into effect. See Connor v. Finch, 431 -U.S. 407 
(1977); Chapman v. Meier, 420 U.S. 1 (1975); and Graves v. Barnes, 446 F. Supp. 
560 (W.D. Tex. 1977)(three judge court), affd, 435 U.S. 901 (1978). These cases 
are inapposite in the context of evaluating appellants' hypothetical judicial districts 

2 



equal population principle is not needed to give meaning, in the judicial context, to the 

first prong of Gingles.2 In legislative districting where the one person one vote standard 

applies, plaintiffs' hypothetical districts must comply also. But in situations, such as this, 

where the equal population principle does not apply, plaintiffs' hypothetical districts need 

only adhere to the same standard of deviation found in the State's existing districts.3 Since 

Louisiana now sanctions an average deviation of 19.55%, plaintiffs need only show that a 

majority black district can be created within that deviation. It is undisputed that the 

hypothetical districts proposed by plaintiffs, with deviations of 7-9% (Orleans Parish only 

hypothetical district) or 4.4% (Orleans and Jefferson hypothetical district), satisfy that 

standard. 

In any event, the question whether the State must in fact adopt the plaintiffs' 

hypothetical districts is premature at the liability phase of the proceedings. If, after a 

finding of liability, the State continues to contend that plaintiffs' hypothetical district 

exhibits unacceptable population deviations, it can propose other districts that cure the 

proven section 2 violation while comporting with apportionment policies to which the State 

for the purposes of determining liability, rather than the ultimate remedy. 

2 Defendants assert that Gingles "implicitly, if not explicitly, sets forth a one-man, 
one-vote or proportionality principle." In making this assertion, they rely on an 
interpretation of the majority's opinion in Justice 0' Connor's concurrence. Even 
if Gingles were read to require proportionality-- which the majority explicitly 
disavows and the statute itself specifically rejects-- there is no mention in Gingles  
of the one person one vote principle. The one person one vote principle has 
nothing to do with proportional representation. Defendants' reliance on this 
concurrence, Deft. Brf. at 19, is wholly misplaced. 

3 The Louisiana constitution does not require that election districts for the Supreme 
Court be apportioned equally by population. RE 14 

3 



is committed. 

II. Racially Polarized Voting Can Exist Within an Effective Majority Black District  

Defendants assert that the existence of racially polarized voting within the hypothetical 

district renders it an ineffective majority black district. This argument demonstrates a 

fundamental misunderstanding of the two-pronged concept of legally significant racial bloc 

voting. The first question in assessing whether a district exhibits legally significant racial 

bloc voting, is whether bloc voting exists, .that is, whether blacks and whites vote 

differently. The second question is whether the bloc voting is legally significant. This 

question looks at whether "where minority and majority voters consistently prefer different 

candidates, the majority, by virtue of its numerical superiority, will regularly defeat the 

choices of minority voters." 478 U.S. 48. The State and the trial court failed to take into 

account the second aspect of legally significant racial bloc voting. Both assumed that the 

only relevant issue is whether black and white voters vote differently. 

Gingles does not presuppose the absence of racial bloc voting in majority black 

districts. What is clear from Gingles is that there is no legally significant racial bloc voting 

in a majority black district if blacks can elect the candidates of their choice. Plaintiffs 

demonstrated the absence of legally significant racial bloc voting in the hypothetical 

district. They showed that despite minimal support from white voters, black candidates 

in relevant Orleans Parish elections have won substantial victories. RE 94-99. As long as 

blacks can elect their chosen candidates it does not matter that whites and blacks in the 

majority black district prefer different candidates. This is the fundamental difference 

between plaintiffs' hypothetical district and the existing First District. 

4 



III. There Is No Legal or Factual Basis for Applying Racial Polarization Analysis  
Differently in This Case Than in Legislative Cases  

Defendants suggest that functional distinctions between the judiciary and the legislature 

are reflected in differences in judicial and legislative elections. They suggest that because 

judicial elections differ from legislative elections in certain respects, section 2 should not 

be applied to judicial elections in "precisely . . . the same way as it applies to other 

elections." Deft. Brf. at 27.4 The essence of defendants' claim is that standard analytical 

methods used to measure racial polarization are unreliable in the context of judicial 

elections. Defendants' argument is unsupported by both the law and the undisputed facts 

of this case. 

In this Circuit, every court that has analyzed judicial elections under amended section 

2 has relied on ecological regression and homogeneous precinct analysis (the standard 

Gingles-approved statistical methods to measure racially polarized voting, 478 U.S. at 52 

n.20), finding them "legally competent and highly probative," LULAC v. Mattox, No. MO-

88-CA-154, slip op. at 87 (W.D. Tex., Nov. 8, 1989). See also Clark v. Edwards, 775 F. 

Supp. 285 (M.D. La. 1988); Martin v. Allain, 658 F. Supp. 1183, 1193 (S.D. Miss 1987). 

Despite their suggestion that the methodology is unreliable, defendants themselves rely on 

4 The only support defendants present for this statement is an aside in the Solicitor 
General's Amicus Curiae brief to the United States Supreme Court. Whatever the 
Solicitor General's offhanded comments may have meant, the United States has 
taken the position in this case, where it is a plaintiff, that courts should rely on 
ecological regression and that, based on the evidence, there is legally significant 
racially polarized voting. See U.S. Brf. at 25-26, 30-34. 

5 



the standard statistical analysis. They simply advance different conclusions as to the 

meaning of the results. 

Defendants fail to explain how any unique characteristics of judicial elections in 

general, or of the disputed elections in particular, could bear on racially polarized voting 

analysis.5 More specifically, they fail to demonstrate that these characteristics affect the 

usefulness of statistical methods in analyzing racially polarized voting. In fact, defendants 

cannot make such a showing because whatever the differences between legislative and 

judicial elections, one thing is clear: in determining whether whites and blacks cast their 

ballots for different candidates, the methods of analysis are not dependent on the functions 

of the elected office. In the context of judicial elections, high rolloff, low turnout and 

relatively noncompetitive races may reduce the number of ballots cast. But these factors 

would not affect the method of analyzing the preferences of those who actually voted. 

Defendants also argue that in the context of judicial elections, political cohesion cannot 

be measured solely by reference to racial polarization analysis, but rather must be 

measured by reference to a "single political 'platform' of common goals and common 

5 The trial court opined that particularly low turnout and high rolloff in judicial 
elections affected black political cohesiveness. There is absolutely no support in the 
record for this conclusion. Even assuming higher rolloff and lower turnout, 
cohesion is measured by the preferences of those actually casting ballots in the 
races in question. Gomez v. City of Watsonville, 863 F. 2d 1407, 1416 (9th Cir. 
1988) cert denied 103 L.Ed.2d 839 (March 20, 1989)("[C]ourt should have looked 
only to actual voting patterns rather than speculating as to the reasons why many 
Hispanics were apathetic"). With black support for black candidates reaching 
landslide proportions in about_ 80% of the judicial elections within the First 
Supreme Court District, a finding that blacks lack political cohesion is clearly 
erroneous. 



means by which to achieve them." Deft. Brf. at 35 (citing Monroe v. City of Woodville, 

881 F.2d 1327, 1331 (5th Cir. 1989). This Court, however, has repeatedly held that "a 

minority group is politically cohesive if it votes together." Campos v. Baytown, 840 F.2d 

1240, 1244 (1988), 106 L.Ed.2d 564 (June 26, 1989). See Citizens for a• Better Gretna v.  

City of Gretna, 834 F.2d 496 (5th Cir. 1987) cert denied 106 L.Ed.2d 564, June 26, 1989 

("bloc voting can be proved in part by showing that a significant number of minority group 

members usually vote for the same candidate")(internal quotation marks omitted). Gingles  

makes clear that political cohesion and racially polarized voting are two sides of the same 

coin: a "showing that a significant number of minority group members usually vote for the 

same candidates is one way of proving the political cohesiveness necessary to • a vote 

dilution claim, and consequently, establishes minority bloc voting within the context of 

section 2." 478 U.S. at 56. 

Defendants' reliance on Monroe clearly is misplaced..6 Black voters in First District 

elections routinely favor black candidates overwhelmingly and to the exclusion of others. 

As discussed above, the results of these races unequivocally demonstrate political 

cohesiveness. Indeed, a close look at defendants' vaunted example of the lack of black 

political cohesiveness -- the 1972 Supreme Court candidacies of Revius Ortique and Earl 

J. Amedee -- reveals that for two reasons the defendants' analysis is wrong. First, as the 

6 Monroe involved a city with a black majority in which blacks did not elect black 
candidates. The panel found that blacks in the City of Monroe were not cohesive 
because they did not support the same candidates. Thus, Monroe is completely 
inapposite to this case, where within the majority-black city (New Orleans), blacks 
in fact do elect black candidates. 

7 



United States describes in detail in its brief, U.S. Brf. at 26 n.8, defendants have relied on 

improper black population figures. Using accurate figures, it appears that Ortique may 

have received as much as 64% of the black vote, while Amedee could have well have 

received a narrow majority. Second, the question presented by this case is not whether 

one election 18 years ago shows cohesiveness; plaintiffs do not need to prove black 

cohesiveness in every election in order to prove a section 2 claim. Martin v. Allain, 658 

F.Supp. 1183, 1194 (S.D. Miss. 1987) In any event, the relevant question is whether blacks 

in the First District are politically cohesive today. Gingles, 478 U.S. at 79. Plaintiffs have 

shown unequivocally that they are. 

IV. Candidate Financing is not Independent of Race  

Defendants' analysis of election returns by the level of campaign financing is an 

attempt to isolate campaign financing as a factor independent of race for the purposes of 

racially polarized voting analysis. The illogical result of • severing socioeconomic factors 

from race, as defendants urge, is to create a rule that denies blacks the ability to prove 

a section 2 claim, and hence the right to participate in the electoral process, because they 

suffer the present effects of past discrimination. This approach explicitly was disavowed 

by Gingles.7 Socioeconomic factors generally bear a strong correlation to race. In light 

of this, the Senate Report specifically identifies depressed socioeconomic circumstances as 

7 In addition, appellees' argument that legally irrelevant variables such as candidate 
name recognition and voter concern with candidate qualifications also must be 
factored into the section 2 analysis is nothing more than a misguided attempt to 
smuggle the intent standard-- rejected by the 1982 amendment and by Gingles--
back into section 2 analysis. 

8 



a factor (Senate factor 5) tending to show minority vote dilution. See Gomez v. City of 

Watsonville 863 F.2d 1407, 1416 (9th Cir. 1988)(Low voter registration and turnout 

considered evidence of minority voters' lack of ability to participate effectively in the 

political process). Gingles recognized that 

because of inferior educations and poor employment opportunities, blacks 
earn less than whites, [and may] not be able to provide the candidates of 
their choice with the same level of financial support that whites can provide 
theirs. . . . [I]n this instance, the economic effects of prior discrimination 
have combined with the multimember electoral structure to afford blacks less 
opportunity than whites to participate in the political process and to elect 
representatives of their choice. 

478 U.S. at 70. While it may be true that some of the black candidates in the First 

District lost their elections because their white opponents outspent them, it is indisputable 

that the level of candidate financing is directly connected to the depressed socioeconomic 

status of the black community. 

V. Black Voting Strength is Diluted When Blacks Do Not Have the Same Opportunity  
as Whites to Elect Candidates of Their Race  

Defendants concede that in the First District, blacks often are unable to elect 

- candidates of their choice when the candidate is black. But, they assert that there is no 

vote dilution in the district, however, because black-supported candidates who are white 

succeed. Thus, even though black voters cannot elect candidates of their own race and 

whites can, defendants urge that blacks have equal opportunity to participate in the 

political process. 

Since 1964 it has been clear that blacks do not have equal voting rights within an 

electoral system that is structured to favor white candidates. Anderson v. Martin, 375 U.S. 

9 



• 
399 (1964). Defendants would have to concede that if the Louisiana Supreme Court set 

a requirement that candidates be white, such. a requirement would violate the Voting 

Rights Act because it would not allow blacks the same opportunity as whites to elect 

candidates of their choice. a. Allen v. Board of Elections, 393 U.S. 544, 570 

(1969)(statute that burdens independent candidate is subject to section 5 because such 

measure could "undermine the effectiveness of voters" who wish to elect those candidates.) 

Dougherty County Board of Education v. White, 439 U.S. 32, 38, 43 (1978)(board of 

education's leave of absence policy for employees running for political office is subject to 

section 5 because it erected "increased barriers to candidacy" and "concomitantly limit[ed] 

the choices available to . . .voters"). Yet the import of defendants' definition of vote 

dilution is precisely to include as a criterion for Supreme Court candidacy that the 

candidate be white. 

Not only does the current structure of the First Supreme Court District impose a de 

facto requirement that the candidates be white, because of the extreme numerical 

submersion of blacks within the white majority district, but it also prohibits black voters 

from electing white candidates who are not preferred by the white majority, rendering 

their votes in district-wide elections essentially meaningless. Nothing could be a more 

clear example of vote dilution. 

10 



Conclusion 

For the foregoing reasons, this Court should reverse the judgment of the district court 

and remand this case with instructions that the district court order two single member 

districts into effect in the First Supreme Court District. 

Respectfully Submitted, 

— , 

WILLIAM P. QUIGLEY 
901 Convention Center Blvd. 
Fulton Place 
Suite 119 
New Orleans, LA 70130 
(504) 524-0016 

ROY RODNEY, JR. 
McGlinchey, Stafford, Mintz, 

Cellini, Lang 
643 Magazine Street 
New Orleans, LA 70130 
(503) 586-1200 

11 

JULIUS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 
JUDITH REED 
DAYNA L. CUNNINGHAM 
SHERRILYN A. IFILL 
99 Hudson Street, 16th Floor 
New York, N.Y. 10013 
(212) 219-1900 

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



•  PAMELA S. KARLAN 
University of Virginia 
School of Law 
Charlottesville, VA 22901 
(804) 924-7810 

C.LANI GUINIER 
University of Pennsylvania 

School of Law 
3400 Chestnut Street 
Philadelphia, PA 19104-6204 
(215) 898-7032 



CERTIFICATE OF SERVICE 

I hereby certify that on March 19, 1990, I served copies of the foregoing brief for 
Plaintiffs-Appellants upon the attorneys listed below by causing them to be sent via United 
States mail, first class, postage prepaid: 

Wiliam J. Gusta, Jr., Esq 
Attorney General 
Louisiana Department of Justice 
234 Loyola Avenue, Suite 700 
New Orleans, LA 70112-2096 

Moise W. Dennery, Esq. 
21st Floor Pan American 

Life Center 
601 Poydras Street 
New Orleans, LA 70130 

Iry Gorenstein, Esq. 
U.S. Department of Justice 
P.O. Box 66078 
Washington, D.C. 20035-6075 

Robert G. Pugh, Esq. 
330 Marshall Street 
Suite 1200 
Shreveport, LA 71101 

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 

George M. Strickler, Esq. 
639 Loyola Street 

Suite 1075 
New Orleans, LA 70113 

Peter Butler, Esq. 
Butler, Heebe & Hirsh 
712 American Bank Building 
New Orleans, LA 70130 

Moon Landrieu, Esq. 
717 Girod Street 
New Orleans, LA 70130 

• 

1 for Plaintiffs-Appell nts