NAACP-Flint Chapter v. Engler Brief Amicus Curiae

    UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF LOUISIANA 

RONALD CHISOM, MARIE BOOKMAN, 
WALTER WILLARD, MARC MORIAL, 
LOUISIANA VOTER REGISTRATION/ 
EDUCATION CRUSADE, and HENRY A. 
DILLON, III, 

Plaintiffs, 

V . 

Civil Action 
• Number: 86-4075 

Section "A" 

Class Action 
EDWIN EDWARDS, in his capacity as : 
Governor of the State of Louisiana,: 
JAMES H. BROWN, in his capacity as : 
Secretary of State of the State 
of Louisiana, and JERRY M. FOWLER, 
in his capacity as Commissioner of : 
Elections of the State of 
Louisiana, 

Defendants. 

PLAINTIFFS' MEMORANDUM IN OPPOSITION 
TO DEFENDANTS' MOTION TO DISMISS  

Defendants have argued in their motion to dismiss that 

section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 

§ 1973, does not apply to any elections for judicial positions. 

This position is without support in the legislative history of 

section 2, in the logic of the Act as a whole, or in the use of 

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

Moreover, the emerging case law on this point rejects 

defendants' claim. The only court to have issued a decision on 

this question has held held that § 2 covers the election of state 

court judges, Kirksey v. Allain, Civ. Act. No. J85-0960(B), slip 

op. at 2 (S.D. Miss., June 2, 1986); it recently conducted a 



week-long trial regarding Mississippi's use of multimember, at-

large, numbered post judicial districts for the election of 

chancery, circuit, and county court judges. 1 And in Martin v.  

Alexander, Civ. Act. No. 86-1048-CIV-5 (E.D.N.C.), a case 

challenging the election scheme for the North Carolina superior 

court, the United States has recently sought leave to file a 

brief amicus curiae supporting the position of plaintiffs and 

plaintiff-intervenors that § 2 applies to the election of 

judges. 2 

I. The Legislative History of Section 2 Shows 
Congress' Intent To Cover All Elections,  
Including Elections for Judicial Positions 

Section 2, as originally enacted in 1965, provided, in 

pertinent part, that 

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

42 U.S.C. § 1973. The clear import of section 2 was to outlaw 

racial discrimination in all voting. In passing the 1965 Act, 

Congress sought "to counter the perpetuation of 95 years of 

pervasive voting discrimination," City of Rome v. United States, 

446 U.S. 156, 182 (1980), by "creat[ing] a set of mechanisms for 

dealing with continued voting discrimination, not step by step, 

lA copy of the district court's unpublished order appears in 
Appendix A to this Memorandum. 

2A copy of the United States' application and brief appears 
in Appendix B to this Memorandum. 

2 



• 
but comprehensively and finally." S. Rep. No. 97-417-, p. 5 

(1982). Nothing in either the language of the Act or its 

legislative history supports defendants' claim that voting 

standards, practices, or procedures involving the election of 

judges were somehow excluded. Nor have defendants provided any 

basis for concluding that Congress intended to permit continued 

racial discrimination in voting as long as the challenged 

practice concerned voting for a judicial, rather than a 

legislative or executive, office. 

The Voting Rights Act originated as H.R. 6400, a bill 

introduced by Representative Cellar, the Chairman of the 

Judiciary Committee, but drafted by the Administration. That 

bill provided that "[n]o voting qualification or procedure shall 

be imposed or applied to deny or abridge the right to vote on 

account of race or color." H.R. 6400, § 2, reprinted in Voting 

Rights: Hearings Before Subcommittee No. 5 of the House Judiciary 

Comm., 89th Cong., 1st Sess., 862, 862 (1965) [hereinafter cited 

as "House Hearings"]. It further provided that: "The term 'vote' 

shall have the same meaning as in section 2004 of the Revised 

Statutes (42 U.S.C. 1971(e))." H.R. 6400, § 11(c), reprinted in  

House Hearings at 865. Section 1971(e), enacted as part of the 

Civil Rights Act of 1960, provided that: 

When used in the subsection, the word "vote" includes 
all action necessary to make a vote effective 
including, but not limited to, registration or other 
action required by State law prerequisite .to voting, 
casting a ballot, and having such ballot counted and 
included in the appropriate totals of votes cast with 
respect to candidates for public or party office and 
propositions for which votes are received in an 

3 



election . 

Thus, H.R. 6400 expressly contemplated protecting voters in any 

election involving candidates for "public office" (which a 

judgeship indubitably is). Moreover, the fact that the bill 

included elections in which no candidate was running (that is, 

elections at which "propositions," such as bond issues, are 

decided) shows that its focus was on the right of all citizens to 

participate in the electoral process, rather than on the 

particular question to be determined at a given election. 

The Supreme Court has held that, "in light of the extensive 

role the Attorney General [Nicholas Katzenbach] played in 

drafting the statute and explaining its operation to Congress," 

his construction of the Act is entitled to great weight. United 

States v. Sheffield Board of Commissioners, 435 U.S. 110, 131 & 

n. 20 (1978); see Allen v. Board of Elections, 393 U.S. 544, 566-

69 (1969); S. Rep. No. 97-417, p. 17 & n. 51 (1982). Attorney 

General Katzenbach made clear that "[e]very election in which 

registered electors are permitted to vote would be covered" by 

the Act. House Hearings at 21. 3 

3Rep. Kastenmeier noted that one alternative bill had 
defined "election" to include 

"any general, special, primary election held in any 
State or political subdivision thereof solely or 
partially for the purpose of electing or selecting a 
candidate to public office, and any election held in 
any State or political subdivision thereof solely or 
partially to decide a proposition or issue of public 
law." 

The following exchange then occurred: 

4 



The result of this discussion of the scope of the Act's 

intended protection was the inclusion, in the bill ultimately 

passed, of an express definition: 

The terms "vote" or "voting" shall 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 prerequisite to voting, 
casting a ballot, and having such ballot counted 
properly and included in the appropriate totals of 

"Mr. KASTENMEIER. First, I am wondering if you 
would accept that definition. 

Mr. KATZENBACH. Yes. 
Mr. KASTENMEIER. Secondly, I am wondering if you 

feel it might aid to put a definition of that sort in 
the administration bill or whether it is unnecessary. 

Mr. KATZENBACH. I don't think it is necessary,  
Congressman, but I cannot think of any objection that I  
would have to using that definition or something very  
similar to it." 

House Hearings at 67 (emphasis added). Katzenbach had a similar 
colloquy with Rep. Gilbert: 

"Mr. GILBERT. ... You refer in section 3 of the 
bill [which dealt with tests and devices] to Federal, 
State and local elections. Now, would that include 
election for a bond issue? 
Mr. KATZENBACH. Yes. 

Mr. GILBERT. Now, my bill, H.R. 4427. I have a 
definition. I spell out the word 'election' on page 5, 
subdivision (b). I say: 

"Election" means all elections, including 
those for Federal, State, or local office and 
including primary elections or any other 
voting process at which candidates or 
officials are chosen. "Election" shall also 
include any election at which a proposition 
or issue is to be decided. 
Now, I have no pride or authorship but don't you 

think we should define in H.R. 6400 [the 
Administration's bill] the term 'election'? 

Mr. KATZENBACH. I would certainly have no 
objection to it and I think it should be broadly 
defined. 

House Hearings at 121. 

5 



votes cast with respect to candidates for public or 
party office and propositions for which votes are 
received in an election. 

42 U.S.C. § 19731(c)(1) (emphasis added). Nothing in the 

language or structure of the Voting Rights Act suggests that this 

broad definition does not apply to § 2 lawsuits. Indeed, § 

19731(c)(1) represents the best evidence that Congress meant to 

include all elections when it prohibited denying or abridging 

"the right of any citizen of the United States to vote" in § 2. 

Attorney General Katzenbach's contemporaneous interpretation 

of the scope of the Act and the definition of "voting" the Act 

employs are wholly at odds with defendants' attempt to restrict 

the definition of public office to only legislative or executive 

positions. Given Congress' "intention to give the Act the 

broadest possible scope," Allen v. State Board of Elections, 393 

U.S. 544, 566-67 (1969), defendants' cramped reading is 

particularly unjustified. As one court has noted, "the Act 

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

is the object of the vote." Haith v. Martin, 618 F. Supp. 410 

(E.D.N.C. 1985) (three-judge court) (emphasis in original), 

aff'd, U.S. , 91 L.Ed.2d 559 (1986). 

There is an additional reason to conclude that § 2 has 

always applied to judicial elections. As originally enacted, § 2 

"simply restated the prohibitions already contained in the 

Fifteenth Amendment ...." City of Mobile v. Bolden, 446 U.S. 55, 

61 (1980) (plurality opinion); see also S. Rep. No. 97-417, pp. 

6 



• 
17-19 (1982). 4 The Fifteenth Amendment clearly applies to claims 

of intentional racial vote dilution in judicial elections. Voter 

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

Cir. 1980). Thus, § 2, in its original form, would also have 

reached claims of vote dilution in judicial elections. Indeed, 

the contrary result would plainly be absurd: § 2 would clearly 

bar a state's passage of a law restricting the franchise in 

judicial elections only to white voters. 

Defendants therefore bear the burden of showing that later 

amendments to § 2, all ostensibly intended to broaden the Act's 

scope, somehow narrowed the scope of the Act to exclude judicial 

elections. Their analysis of the legislative history of these 

subsequent amendments fails entirely to meet this burden. 

One continuing thread in the legislative history is 

Congress' discussion of the increasing number of black elected 

officials in jurisdictions that historically had discriminated 

against minority voters. While Congress has never explicitly 

discussed progress in integrating the judiciary, its frequent 

reliance on data that includes judicial positions shows 

implicitly that judicial elections fall within the scope of § 2. 

In 1975, Congress relied for its figures regarding the number of 

4The Supreme Court has termed the Senate Report an 
"authoritative source" concerning Congress' intent in amending 
section 2. Thornburg v. Gingles, 478 U.S. , 92 L.Ed.2d 25, 42 
n. 7 (1986). 

The House Report uses similar terminology. See, e.g., H.R. 
Rep. No. 97-227, p. 4 (1982) ("electoral process"); id. at 18 
(condemning practices that deprive minorities of the chance to 
elect the "candidate of their choice"). 

7 



black elected officials on a report prepared by the U.S. 

Commission on Civil Rights. See, e.g., S. Rep. No. 94-295, p. 14 

(1975). That report explicitly included judges in its summaries 

of the number of black elected officials. See, e.g., U.S. 

Commission on Civil Rights, The Voting Rights Act: Ten Years  

After 377 (table containing the number of black elected county 

officials in counties with 25% or more black populations, column 

listing "Law Enforcement Officials" includes, among others, 

"judges" and "justices of the peace"). Similarly, in 1982, 

Congress relied on figures provided by the Joint Center for 

Political Studies. See H.R. Rep. No. 97-227, pp. 7-9 (1982). 

These figures also explicitly included, as relevant elected 

officials, elected black judges. See, e.g., Joint Center for 

Political Studies, Black Elected Officials: A National Roster, 

1980, at 4-5, 14-15 (1980). Of particular salience to this case, 

the Joint Center report on which Congress relied included black 

elected judges in Louisiana within its total of black elected 

officials within the state. See id. at 123 and 132. 5 

5The Civil Rights Commission continues to include elected 
minority jurists within its descriptions of black elected 
officials. See, e.g., U.S. Comm'n on Civil Rights, The Voting 
Rights Act: Unfulfilled Goals 27-28 (1981) (stating that blacks 
were rarely elected to "law enforcement positions (including 
sheriffs and judges)") (emphasis added); id. at 31, 34, 35 
(tables showing number of elected black law enforcement 
officials--a designation that includes judges); id. at 37 (table 
showing Hispanic elected county judges during 1979-1980). The 
Census Bureau's treatment of elected black judges also counts 
them as black elected officials. See, e.g., U.S. Dept. of 
Commerce, Bureau of the Census, Statistical Abstract of the 
United States 1986, at 252 (106th ed. 1985) (in table no. 428, 
"Black Elected Officials, by Office, 1970 to 1985, and by Region 
and State 1985," column 3, "Law enforcement" includes "Judges, 

8 



• 
The 1982 amendments, which gave § 2 its current shape, lend 

additional support to plaintiffs' position. The Senate Report 

refers to minorities who "now hold public office" and "the 

presence of minority elected officials." S. Rep. No. 97-417, pp. 

5 & 16 (1982). Its repeated use of phrases such as "an equal 

chance to participate in the electoral process," e.g., id. at 16, 

and "an equal opportunity ... to elect candidates of their 

choice," e.g., id. at 28, is entirely at odds with defendants' 

suggestion that Congress intended to exclude, sub silentio, one 

particular aspect of the electoral process, and one particular 

kind of candidate, from the protection of section 2, which 

extended to "all stages of the political process," H.R. Rep. No. 

97-227, p. 14 (1982) (emphasis added). 

Ultimately, defendants' claim that section 2 does not cover 

judicial elections rests on the presence of one word, 

"representatives," in amended section 2(b). 6 According to 

defendants, Congress deliberately chose this word to 

only elections involving candidates for positions in 

"representative" branches of the government would be 

the protection of section 2. 

ensure that 

the 

subject to 

magistrates, constables, marshals, sheriffs, justices of the 
peace, and other"). 

6That section states that a violation of section 2(a) is 
shown if a plaintiff proves "that the political processes leading 
to nomination and election in the State or political subdivision 
are not equally open to participation by members of a class of 
citizens protected by subsection (a) of this section in that its 
members have less opportunity that other members of the 
electorate to participate in the political process and to elect 
representatives of their choice." 

9 



Section 2(b) was added as a compromise in the Senate to make 

clear that the results test could not be satisfied merely by 

demonstrating the absence of proportional representation. See S. 

Rep. No. 97-417, p. 2 (1982). There is absolutely nothing in the 

statute or legislative history to support the view that use of 

the word "representative" was meant to restrict § 2's protection 

to a subset of elections. The choice of the word 

"representatives," as opposed to, for example, the words 

"candidate" or "elected official," which are used extensively in 

the legislative history, see, e.g., id. at 16, 28, 29, 30, 31, 

and 67, simply cannot carry the weight defendants attempt to pile 

onto it. In 1982, as in 1965, the Voting Rights Act applies to 

every election. 

II. The Overall Structure of the Voting Rights 
Act Requires that Section 2 Be Construed To 
Cover Judicial Elections 

• It is undisputed that judicial elections are subject to the 

preclearance provisions of section 5 of the Voting Rights Act. 

Kirksey V. Allain, 635 F. Supp. 347 (S.D. Miss. 1986) (three-

judge court); Haith V. Martin, 618 F. Supp. 410 (E.D.N.C. 1985) 

(three-judge court), aff'd, U.S. , 91 L.Ed.2d 559 (1986). 

The import of defendants' position in this case is that although 

a jurisdiction subject to preclearance may be stopped from 

instituting a new practice regarding judicial elections if that 

practice has "the effect of denying or abridging the right to 

vote on account of race or color," 42 U.S.C. § 1973c (section 5), 

10 



the jurisdiction is perfectly free to continue using a pre-

existing system of judicial elections that "results in a denial 

or abridgement of the right ... to vote on account of race or 

color," 42 U.S.C. § 1973 (section 2). 

Defendants' argument rests on the proposition that a 

violation of section 5 is not necessarily a violation of section 

2. Congress has squarely rejected this proposition: 

Under the Voting Rights Act, whether a discriminatory 
practice or procedure is of recent origin affects only 
the mechanism that triggers relief, i.e., litigation 
[under section 2] or preclearance [under section 5]. 
The lawfulness of such a practice should not vary 
depending on when it was adopted, i.e., whether it is a 
change 

H.R. Rep. No. 97-227, p. 28 (1982). 7 Sections 2 and 5 are 

intended to complement each other. Section 5 provides an 

additional procedural mechanism for protecting voters in areas 

with an egregious history of voting discrimination; it does not, 

however, use an inconsistent standard of review. 

7Both Congress and the Attorney General have interpreted the 
protections of sections 5 and 2 as coextensive with respect to 
the closely related question whether the Attorney General must 
object under section 5 to practices that also violate section 2. 
See, e.g., S. Rep. No. 97-417, p. 12 n. 31 (1982); 128 Cong. Rec. 
S7095 (daily ed., June 16, 1982) (remarks of Sen. Kennedy); 128 
Cong. Rec. H3841 (daily ed. June 16, 1982) (remarks of Rep. 
Sensenbrenner and Rep. Edwards); Voting Rights Act: Proposed  
Section 5 Regulations, Report of the Subcomm. on Civil and 
Constitutional Rights of the House Judiciary Comm., 99th Cong., 
2d Sess. 5 (1986); Nomination of William Bradford Reynolds to be  
Associate Attorney General of the United States: Hearings Before  
the Sen. Judiciary Comm., 99th Cong., 1st Sess. 119 (1985); 52 
Fed. Reg. 498 (1987) (to be codified at 28 C.F.R. § 51.55(b) (the 
Attorney General will withhold § 5 preclearance from changes that 
violate § 2); 52 Fed. Reg. 487 (1987) (when facts available at 
preclearance proceeding show that the change "will result in a 
Section 2 violation, an objection will be entered.") 

11 



Moreover, the analysis of the three-judge court in Haith  

clearly supports applying section 2 as well as section 5 to 

judicial elections. Haith expressly relied on the language of 

section 2 to support its conclusion that "the Act applies to all 

voting without any limitation as to who, or what, is the object 

of the vote." Haith V. Martin, 618 F. Supp. at 413 (emphasis in 

original). Thus, no basis exists in the structure of the Act 

itself for concluding that only section 5 applies to judicial 

elections. 

Finally, defendants argue that judicial elections are 

covered only by the Fifteenth Amendment, which requires a showing 

of discriminatory intent. For this Court to accept defendants' 

arguments, it would have to hold that, although § 2 reaches 

intentional discrimination in judicial elections, 8 it does not 

reach such discrimination in the absence of a finding of 

discriminatory intent. But Congress stated that making the 

presence or absence of discriminatory intent a dispositive issue 

in a § 2 suit "asks the wrong question." S. Rep. No. 97-417, p. 

36 (1982). Coverage of judicial elections therefore simply 

cannot turn on the intention of the state officials who enacted 

or maintain the practices being challenged. 

8Although § 2 was amended to make clear that a plaintiff 
need not show discriminatory intent to win a vote-dilution suit, 
amended § 2 obviously continues to reach claims of intentional 
discrimination. See, e.g., Dillard v. Crenshaw County, 640 F. 
Supp. 1347, 1353 (M.D. Ala. 1986); cf. Major v. Treen, 574 F. 
Supp. 325, 344 (E.D.La. 1983) (three-judge court). Thus, it 
necessarily continues to reach claims of intentional vote 
dilution in judicial elections. Cf. Voter Information Project v.  
City of Baton Rouge, 612 F.2d at 211-212. 

12 



III. Defendants' Reliance on Wells v. Edwards and 
Morial v. Judiciary Commission is Misguided 

It is true that the principle of one-person, one-vote first 

announced in Reynolds v. Sims, 377 U.S. 533 (1964), does not 

apply to judicial elections. See Wells V. Edwards, 409 U.S. 1095 

(1973) (per curiam), summarily aff'g, 347 F. Supp. 453 (M.D. La. 

1972) (three-judge court). Defendants claim this means that 

section 2 is similarly unconcerned with judicial elections. •But 

the fact that the Constitution does not require strict population 

equality among judicial districts says virtually nothing about 

whether the Voting Rights Act prohibits judicial apportionment 

schemes that result in black voters being denied an equal 

opportunity to participate effectively. 

. The Voting Rights Act has always been interpreted as 

providing protection beyond that afforded by the Fourteenth 

Amendment-based principle of one-person, one-vote. For example, 

it reaches practices wholly unrelated to the effects of 

apportionment. 9 But ei/eli with respect to questions of 

apportionment, Congress intended that the Voting Rights Act be 

interpreted more broadly than Reynolds v. Sims, 377 U.S. 533 

9See, e.g., Toney v. White, 476 F.2d 203, 207-08 (5th Cir.) 
(use of voter purge statute), modified and aff'd, 488 F.2d 310 
(5th Cir. 1973) (en banc); Harris v. Graddick, 615 F. Supp. 239 
(M.D. Ala. 1985) (appojntment of polling officials); Goodloe v.  
Madison County Board of Election Commissioners, 610 F. Supp. 240 
(S.D. Miss. 1985) (invalidation of absentee ballots); Brown v.  
Dean, 555 F. Supp. 502 (D.R.I. 1982) (location of polling 
places). 

13 



S 
(1964), because it knew that "population differences were not the 

only way in which a facially neutral districting plan might 

unconstitutionally undervalue the votes of some." S. Rep. No. 

97-417, p. 20 (1982). Thus, for example, Major v. Treen, 574 

F.Supp. 325, 349-55 (E. D. La. 1983) (three-judge court), rejected 

a congressional districting plan that fractured New Orleans' 

large black community into two districts despite the plan's 

compliance with the one person, one vote standard. The fact that 

the plan submerged concentrations of black voters within white 

majorities, thereby making it impossible for blacks to elect the 

candidates of their choice, was itself prohibited. 

Defendants also rely heavily on Morial v. Judiciary  

Commission of the State of Louisiana, 565 F.2d 295 (5th Cir. 

1977) (en banc), cert. denied, 435 U.S. 101,3 (1978). There, the 

Court of Appeals held that the duties of judges and the duties of 

more political officials differed in ways that justified placing 

restrictions on candidates for judicial office that were not 

imposed on candidates for other offices. Defendants claim that 

this means that the right to vote in judicial elections is more 

restricted than the right to vote in other elections. 

That position confuses the question as to how judges and 

candidates for judicial office should conduct themselves with the 

entirely different question of what rights should be accorded to 

voters given a state's decision to make judicial positions 

elective. First, as we have already discussed, the Act has 

always been intended to cover even elections which did not 

14 



involve candidates for office at all. Thus, the nature of the 

office up for election cannot determine whether the Act applies. 

The Act focuses on the rights of black voters, not the interests 

of black candidates. 1° Second, neither the scope of official 

duties nor the level of official performance has any bearing on 

the jurisdictional question currently before this Court. Both 

Houses of Congress have expressly rejected the concept that a 

voting rights plaintiff must show unresponsiveness on the part of 

elected officials to establish a violation of section 2. See S. 

Rep. No. 97-417, p. 29, n. 116 ("Unresponsiveness is not an 

essential part of plaintiff's case."); H.R. Rep. No. 97-227, p. 

30 (1982) (same). In light of Congress' decision that 

responsiveness or its absence is not the touchstone of a section 

2 violation, it makes no sense to suggest, as defendants do, that 

section 2 should not cover judicial elections because a trial 

judge is not supposed to represent the views of the electorate. 

Major v. Treen, 574 F.Supp. 325, 337-38 (E.D. La. 1983) (three-

judge court), implicitly recognized that the interests and rights 

of black voters in judicial and nonjudicial elections are 

identical when it relied on an analysis of polarized voting which 

included, among the 39 elections studied, at least 13 involving 

judicial positions. 

By deciding to make positions on its Supreme Court elective, 

the State of Louisiana has decided that the people shall choose 

1°The Morial Court explicitly stated that the challenged 
statute had only a negligible impact on the constitutional 
interests of voters. See 565 F.2d at 301-02. 

15 



the Justices. Having made this decision, the State lacks the 

power to structure its judicial elections in a fashion that 

results in black citizens having a lesser opportunity to elect 

the judicial candidates of their choice than white citizens 

enjoy. 11 

IV. Conclusion 

Defendant's construction of section 2 reflects virtually 

total inattention to Congress' primary purpose in enacting, 

extending, and amending the Voting Rights Act: to ensure that all 

citizens have an equal chance to participate in all phases of the 

electoral process. S. Rep. No. 97-417, p. 16 (1982). It rests 

on a cramped and artificial reading of one word in the second 

subsection to overcome the clear meaning of the section as a 

whole: that no voting practice or procedure shall be imposed or 

applied which results in a denial or abridgement of the right to 

11Cf. S. Rep. No. 97-417, pp. 6-7 (1982) (abolishing 
elective posts may "infringe the right of minority citizens to 
vote and to have their vote fully count"). Thus, even though an 
office need not be representative, in the sense that a State is 
not required in the first place to permit citizens to choose the 
person who fills it, the Voting Rights Act prohibits practices 
that diminish the opportunity of minority citizens to decide who 
fills it once the decision has been made that it should be 
elective. 

16 



vote on account of race. Thus, this Court should deny 

defendants' motion to dismiss and should hold that section 2 of 

the Voting Rights Act applies to judicial elections. 

Respectfully submitted, 

JULIUS L. CHAMBERS 
LANI GUINIER 
PAMELA S. KARLAN 

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

ROY RODNEY 
643 Camp Street 
New Orleans, LA 70130 
(504) 586-1200 

March , 1987 

17 

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

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

ATTORNEYS FOR PLAINTIFFS 



S 

IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

RALEIGH DIVISION 

KELLY ALEXANDER, JR., et al., ) 

) 
Plaintiffs, ) 

) 
and ) 

) 
NORTH CAROLINA ASSOCIATION ) 
OF BLACK LAWYERS, CALVIN E. ) 
MURPHY, T. MICHAEL TODD, ) 
and RALPH GINGLES, ) 

) 
Plaintiff-Intervenors, ) 

) 
v. ) 

) 
JAMES G. MARTIN, et al., ) 

) 
Defendants. ) 

 ) 

CIVIL ACTION NO.: 86-1 048-CIV-5 

APPLICATION OF THE UNITED STATES FOR LEAVE 
TO FILE BRIEF AS AMICUS CURIAE 

The United States respectfully requests leave of this 

Court to file a brief as amicus curiae addressing the issue 

of whether judicial election procedures that discriminate on 

the basis of race, color or language minority status are 

subject to challenge under Section 2 of the Voting Rights Act 

of 1965, as amended, 42 U.S.0 §§1973. 

Respectfully submitted this 9th day of March, 1987. 

SAMUEL T. CURRIN WM. BRADFORD REYNOLDS 
United States Attorney Assistant Attorney General 

GERLAD W. J0f.ILS 
PAUL F. HANCOCK 
RICHARD J. RITTER 
Attorney, Voting Section 
Civil Rights Division 
Department of Justice 
10th & Constitution Ave., 
Washington, D.C. 20530 
(202) 272-6300 

N.W. 



IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

RALEIGH DIVISION 

KELLY ALEXANDER, JR., at ) 
) 

Plaintiffs, ) 
) 

and ) 
) CIVIL ACTION NO.: 86-1048-CIV-5 

NORTH CAROLINA ASSOCIATION ) 
OF BLACK LAWYERS, CALVIN E. ) 
MURPHY, T. MICHAEL TODD, ) 
and RALPH GINGLES, ) 

) 
Plaintiff-Intervenors, ) 

) 
v. ) 

) 
JAMES G. MARTIN, at al.., ) 

) 
Defendants. ) 

  ) 

• BRIEF FOR THE UNITED STATES AS AMICUS CURIAE  

INTRODUCTION 

This case presents, inter alia, the question whether 

judicial election procedures that discriminate on the basis of 

race, color or language minority status are subject to challenge 

under Section 2 of the Voting Rights Act of 1965, as amended, 42 

U.S.C. SS 1973. The Plaintiffs, joined by the Plaintiff-

Intervenors, allege in their complaints that the State's method 

of electing Superior Court judges violates their rights under 

Section 2 of the Voting Rights Act and the Fourteenth and 

Fifteenth Amendments to the United States Constitution. On 

January 8, 1987, the Defendants moved to dismiss the Plaintiffs' 

Section 2 claims arguing that Section 2 does not apply to 

judicial elections. 



CERTIFICATE OF SERVICE  

I hereby certify that on March 9, 1987, I served a copy 

of the foregoing Application Of The United States For Leave To 

File Brief As Amicus Curiae on all counsel of record by 

mailing, postage prepaid, a copy to the following persons: 

Lacy Thornburg 
James Wallace, Jr. 
Assistant Attorney General 
Office of the Attorney General 
P. O. Box 629 
Raleigh, North Carolina 27602 

C. Allen Foster 
Robert G. McIver 
Foster, Conner, Robson & Gumbiner 
104 North Elm Street 
P. O. Drawer 20004 
Greensboro, North Carolina 27420 

Leslie J. Winner 
Ferguson, Stein, Watt, Wallas & 
. Adkins 
Suite 730, East Independence Plaza 
951 South Independence Boulevard 
Charlotte, North Carolina 28202 

Angus Thompson 
Attorney at Law 
122 West Elizabethtown Road 
Lumberton, North Carolina 28358 

RICHARD J. TTER 
Attorney, Vbting Section 
Civil Rights Division 
Department of Justice 
10th & Constitution Ave., N.W. 
Washington, D.C. 20530 
(202) 272-6300 



2 

I. INTEREST OF THE UNITED STATES  

The United States has the primary responsibility for 

enforcing the Voting Rights Act and thus has a substantial 

interest in ensuring that the Act is construed properly. In 

addition, the United States is a defendant in a related action 

under Section 5 of the Voting Rights Act that is pending before 

the United States District Court for the District of Columbia. 

State of North Carolina v. United States, C.A. No. 86-1490. 1 In 

that action the State of North Carolina is seeking a declaratory 

judgment that certain changes in its method of electing Superior 

Court judges do not discriminate unlawfully on the basis of race 

or color under the Act. The question of the coverage of judicial 

elections under the Voting Rights Act is therefore of direct 

interest to the United States. Accordingly, it wishes to 

participate as amicus curiae to address the issue raised by the 

Defendants' motion to dismiss. 

For the reasons set forth below, the United States submits 

that there is no basis under the Voting Rights Act, its 

legislative history, and the relevant case law for exempting the 

election of judges from the prohibitions of Section 2. 

1 Under Section 5, covered jurisdictions (which includes 40 
counties in North Carolina) may not implement any change in a 
voting qualification or prerequisite to voting, or standard 
practice or procedure with respect to voting, until the 
jurisdiction obtains federal preclearance, either from the 
Attorney General or the United States District Court for the 
District of Columbia. McCain v. Lybrand, 465 U.S. 236, 244-255 
(1984). 



3 

II. BACKGROUND  

In fir h v. Martin, 618 F. Supp. 410 (E.D. N.C. 1985) aff'd 

54 U.S.L.W. 3840 (June 23, 1986) the State was enjoined, pending 

federal preclearance under Section 5, frpm enforcing changes in 

its method of electing Superior Court judges that resulted from a 

series of acts of the North Carolina legislature that were 

enacted between 1965 and 1983. The State subsequently submitted 

those acts to the Attorney General for review under Section 5, 

along with several acts affecting the election of District Court 

judges that had not been precleared. On April 11, 1986, the 

Attorney General notified the State that he did not object to the 

changes involving District Court elections, and some of the 

changes affecting the Superior Court. However, the Attorney 

General objected to three Acts that changed the method of 

electing Superior Court judges: Chapter 262 (1965) which 

required candidates in multi-member districts to run for numbered 

posts, and Chapters 997 (1967) and 1119 (1977) which created 

multi-member judicial districts out of previously existing 

single-member districts, and/or staggered the terms of the 

Superior Court judges in Districts 3, 4, 8, 12, 18 and 20. As to 

each of those Acts, the Attorney General was unable to conclude 

that the State had met its burden under Section 5 of 

demonstrating that they would not unlawfully abridge minority 

voting rights. 

On July 9, 1986, and in response to the Attorney General's 

objections, the State legislature passed Chapter 957 which 



4 

eliminated the numbered post provision for Superior Court 

elections. However, that Act did not purport to remedy the other 

changes to which the Attorney General had objected. Instead, on 

May 30, 1986, the State filed the above referenced declaratory 

judgment action in which it seeks to prove that those changes 

satisfy the substantive standard of Section 5. Trial of that 

action is presently scheduled to commence on July 13, 1987. 

On October 2, 1986, the Plaintiffs Kelly Alexander e_t al., 

filed their complaint in this case in which they seek to mount a 

state-wide challenge to the method of electing Superior Court 

judges. Plaintiff-intervenors were allowed intervention on 

October 23, 1986. 

III. THE DEFENDANTS' MOTION TO DISMISS  

The Defendants have moved to dismiss the Plaintiffs' Section 

2 claims and in support of their motion advance the following 

principal arguments. 

1. Only one court, Kirkspy v. Allain, No. J85-0960(B) (S.D. 

Miss. 1986), has ever squarely held that judicial elections are 

covered by Section 2 of the Voting Rights Act. 

2. There is no evidence in the legislative history that 

Congress ever intended that Section 2 cover the election of 

judges: 

3. Since the "one man-one vote" principle of Reynolds v. 

Sims, 377 U.S. 533 (1964) has been held not to apply to the 

State's judiciary, see Holshouser v. Scott, 335 F. Supp. 928 

(M.D. N.C. 1971), aff'd 409 U.S. 807 (1972), and that principle 



5 

was a basis for the, evolution of the vote dilution doctrine under 

the Voting Rights Act, vote dilution claims affecting judges are, 

by necessary implication, not cognizable under Section 2. 

As we argue below, these contentions are without merit. 

SUMMARY OF ARGUMENT  

1. The plain words of the Voting Rights Act, which courts 

should construe broadly, state that, where judges are elected 

voting discrimination is prohibited because the Act applies to 

all elections for public office without exception, and there is 

no evidence in the legislative history that Congress intended 

otherwise. 

2. There is ample case authority supporting this plain 

reading of the statute, including Raith v. Martin, supra, a case 

involving these same defendants where a three judge court found 

that judicial elections are covered by Section 5 of the Voting 

Rights Act and rejected virtually the same arguments the 

Defendants seek to-advance here under Section 2. 

3. The "one man-one vote" principle, even if inapplicable 

to the apportionment of judicial districts under the Fourteenth 

Amendment, does not purport to address the legality of electoral 

systems that discriminate against racial or ethnic groups. As 

such, that principle is not a concern of the Voting Rights Act 

which was passed to enforce the Constitutional guarantees of the 



6 

Fifteenth and Fourteenth Amendments against discrimination in 

voting on the basis of race, color or membership in a language 

minority group. 2 

ARGUMENT  

I. SECTION 2 SHOULD BE BROADLY CONSTRUED  

The Voting Rights Act "reflects Congress firm intention to 

rid the country of racial discrimination in voting." smith 

Carolina v. Katzenback, 383 U.S. 301, 315 (1966). The Supreme 

Court has emphasized conSistently that the Act should be broadly 

construed to effectuate this important national goal. Ulan v. 

State Board of Elections, 393 U.S. 544 (1969); Georgia v. United  

States, 411 U.S. 526, 533 (1973) -; United States v. Board of 

Commissioners of Sheffield, Alabama et al., 435 U.S. 110, 122-123 

(1978). "It is apparent from the face of the Act, from its 

legislative history, and from our cases that the Act itself was 

broadly remedial in the sense that it was 'designed by Congress 

to banish the blight of racial discrimination in voting...' 

(citation omitted)," United Jewish Oraa_nizations of Williamsburg. 

Inc. v. Carey, 430 U.S. 144, 156 (1977). 

2 As originally passed by Congress in 1965, the Voting 
Rights Act was intended to enforce the Fifteenth Amendment's 
prohibition against discrimination in voting on the basis of race 
or color. See, City of Mobile v. Bolden, 446 U.S. 55 (1980). In 
1975 the Act was amended, pursuant to Section 5 of the Fourteenth 
Amendment, to prohibit voting discrimination against language 
minority groups. See, Unite States V. Uvaide Consolidated  
Independent School District et al., 625 F.2d 547 (5th Cir. 1980), 
cert denied, 451 U.S. 1002 (1981 et al.). 



7 

Section 2, which extends the prohibitions of the Act nation-

wide, is subject to no narrower interpretation. United States v. 

Uyalde Consolidated Independent School District, supra, 625 F.2d 

at 556. Indeed, when Congress amended the Voting Rights Act in 

1982, it noted that "Section 2 remains the major statutory 

prohibition of all voting rights discrimination" (Senate Report 

No. 97-417, 97 Cong. 2nd Sess. p. 30); and the Supreme Court has 

consistently supported its broad construction. See, Allen v. 

State Board of Electiohs, supra, where the Court stated, based on 

the legislative history, that Section 2 "was intended to be all 

inclusive of any kind of [voting] practice" quoting remarks of 

Attorney General Katzenbach during Senate hearings prior to the 

1965 Act, 393 U.S. at 566-567. In sustaining the constitu-

tionality of the Act in South Carolina v. Katzenbach aupra, the 

Court stressed that Section 2 is "aimed at voting discrimination 

in any area of the county where it may occur. [It] broadly 

prohibits the use of voting rules to abridge the exercise of the 

franchise on racial grounds." 383 U.S. at 316. 

II. JUDICIAL ELECTIONS ARE COVERED BY SECTION 2  

As noted saarA, Section 2 was originally designed to enforce 

the provisions of the Fifteenth Amendment. City of Mobile v. 

Bo„lden, supra. Thus, it can hardly afford minority voters any 

less protection of their rights than the Amendment itself. Yet 

the Defendants contend that judicial elections, which are clearly 

covered by the Fifteenth Amendment, are not covered by Section 2. 

This position is untenable. 



8 

North carolina has chosen to extend the franchise to the 

election of Superior Court judges. Having made that choice, it 

is bound by the Voting Rights Act in the conduct of those 

elections. Section 2 and Section 5 contain virtually identical 

language governing methods of election that are covered by those 

provisions i.e., they apply to any "voting qualification or 

prerequisite to voting, or standard practice or procedure with 

respect to voting." It is uncontroverted that judicial elections 

are covered by this language in Section 5 (see, Haith v. Martin. 

supra). There is thus no basis in the plain language of the 

statute for concluding that such elections are not covered by 

Section 2. 

"Voting" is defined in Section .14(c)(1) of the Act, 42 

U.S.C. 19731(c)(1) 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 (Act], 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 and propositions for which votes are  
received in an election. [Emphasis added.] 

That definition applies to all sections of the Act. Where judges 

are elected rather than appointed, as is the case here, they are 

"candidates for public...office," and it seems beyond any doubt 

that the strictures of the Voting Rights Act apply. There is no 

legislative history to the contrary. 



9 

For the most part, the Defendants' only reliance on the 

legislative history is for its alleged silence with respect to 

the judiciary. See, Memorandum in Support of Motion to Dismiss 

pp. 3, 5,9. While the legislative history is not so silent with 

respect to judges as the Defendants suggest (see part III infra), 

even if it were, that silence would hardly support the creation 

of an exception from a statute whose plain terms encompass all 

elections for public office. 

The Supreme Court rejected similar efforts to create 

exceptions to the Voting Rights Act in United States v. Board of  

Commissioners of Sheffield, Alabama et al., supra. In that case, 

the City of Sheffield, Alabama argued that it was not subject to 

the preclearance provisions of the Act because they extended only 

to states and "political subdivisions." Section 14c(2) of the 

Act defines a political subdivision as a county or parish, except 

that where registration for voting is not conducted under the 

supervision of a county or parish, the provisions extend to any 

other subdivision of a state which conducts registration for 

voting. The City argued that since it had never conducted voter 

registration, it was not a political subdivision and thus not 

covered by Section 5. 

In reversing the ruling of a three judge court in favor of 

the City on this issue, the Supreme Court held that, while there 

was little legislative history on the "specific narrow question" 

raised by the City, "there is little, if anything, in the 

original legislative history that in any way supports the 



10 

crippling construction of the District Court." 435 U.S. at 130. 

The most compelling evidence that such a construction was 

contrary to Congresional intent was its inconsistency with the 

underlying purposes of the Act. Said the Court: 

There is abundant evidence that the District 
Court's interpretation of the Act is contrary 
to the congressional intent. First, and most 
significantly, the District Court's construction 
is inconsistent with the Act's structure, makes 
S 5 coverage depend upon a factor completely 
irrelevant to the Act's purposes, and thereby 
permits precisely the kind of circumvention of 
congressional policy that § 5 was designed to 
prevent. Second, the language of the Act does 
not require such a crippling interpretation, 
but rather , is susceptible of a reading that 
will fully implement the congressional objectives. 
435 U.S. at 117. 

Excluding the election of judges from the coverage of 

Section 2 is unwarranted for the same reasons. See, United  

States v. Uvalde Consolidated Independent School District, au2LA, 

625 F.2d at 554-556. Moreover, in light of the Supreme Court's 

affirmance in Haith v. Martin, supra, that judicial elections are 

covered by Section 5, a contrary ruling in this case under 

Section 2 would produce a curious anomaly. In such case, 

judicial elections in states_ or counties not covered by the 

federal preclearance provisions of Section 5 would not be subject 

to the Voting Rights Act, while judicial elections in the Section 

5 jurisdictions would be covered by the Act. Congress could 

hardly have intended such a result. Indeed, such a distinction 

between the states and their political subdivisions in their 

obligations to comply with the Voting Rights Act without any 



11 

congressional findings to support it may be constitutionally 

indefensible. See, South CarQlina V. Katzenbach supra, 383 U.S. 

at 330-331, and City of Rome v. United States, 446 U.S. 156, 176-

178 (1980). 

There are other contradictory results that would occur if 

this Court were to hold that judicial elections are not covered 

by Section 2. It is well established that the Attorney General's 

administrative determinations under Section 5 are not subject to 

judicial review. Seer Allen v. State Board of Elections supra, 

393 U.S. at 549-550; drrris V. Gressette, 432 U.S. 491 (1977). 

As a consequence, once a jurisdiction receives preclearance under 

Section 5 to implement a voting change, citizens who may 

nevertheless claim to be aggrieved by the change have no further 

remedy under Section 5. In such a circumstance, the Act 

contemplates that they would be able to pursue their claims 

through private actions under Section 2. Allen v. State Board of  

Elections supra; Morris v. Gressette supra. That opportunity 

would be foreclosed if judicial elections were .not covered by 

Section 2. 

Such a ruling would also foreclose the Attorney General from 

suing under Section 2 to enjoin a previously precleared change in 

judicial elections if it became evident, after the close of the 

administrative review period, that the change was discriminatory. 

That result is also contrary to the enforcement scheme 

contemplated by the Act. See the Attorney General's Procedures 

for the Administration of Section 5 of the Voting Rights Act of 



12 

1965, 28 C.F.R. Part 51 ("Section 5 preclearance will not 

immunize any change from later challenge by the United States 

under amended Section 2," 52 Fed. Reg. 487). 

Indeed, under the Defendants' theory, the Attorney General 

could not bring any lawsuits under Section 2 to enjoin even the 

most egregious voting rights violations where the election of 

judges is concerned. Thus the United States could not sue under 

Section 2 to enjoin such flagrant voting rights abuses as 

occurred in 5ell v. Southwell, 376 F.2d 659 (5th Cir. 1967) where 

the Court found that a Georgia election for Justice of the Peace 

"was conducted under procedures involving racial discrimination 

which was gross, state-imposed and forcibly state-compelled." 3 

Plainly, Congress could not have intended such a derisive result 

in enacting the Voting Rights Act. 

III. THERE IS NO EVIDENCE IN THE LEGISLATIVE HISTORY THAT 
CONGRESS INTENDED TO EXCLUDE THE ELECTION OF JUDGES FROM 
THE COVERAGE OF SECTION 2  

Even if it were not clear from the plain language of the Act 

that judicial elections are covered by Section 2, thus requiring 

resort to the legislative history, that history does not support 

the Defendants contention that Congress intended to exempt the 

election of judges from the proscriptions of Section 2. 

The legislative history of the Act at the time it was 

passed originally by Congress in 1965 shows some discussion of 

3 The discriminatory practices included racially segregated 
voting lists and voting booths, and physical assaults on black 
voters. 



13 

whether the term "vote" that was contained in the operational 

definitions of the House and Senate bills (H.R. 6400 and S.1564) 

should include the election of candidates for offices of 

political parties. See, Conference Report S. 1564, 89th Cong. 

1st Sess. Report No. 711, P.14. The House bill extended the Act 

to party elections, the Senate bill did not. Congress agreed to 

include party elections in the final version of the Act. See, 42 

U.S.C. § 19731(c)(1). Had there been any perception on the part 

of members of either the House or Senate that judicial elections 

should be exempted from the Act, they could have expressed those 

views at the times these provisions were deliberated. They did 

not. 

In his enforcement of the Act, the Attorney General has 

treated judicial elections as subject to the Act, and has so 

informed Congress. For example, on December 26, 1972 the 

Attorney General objected under Section 5 to an Alabama change 

from elected to appointed justices of the peace. This objection 

was brought to the attention of Congress when the Voting Rights 

Act extension of 1975 was under consideration. 4 On February 20, 

1976, the Attorney General objected to an Alabama statute that 

combined two counties in a judicial district. This objection was 

brought to the attention of Congress when the Voting Rights Act 

4 See Extension of the Voting Rights Act: 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. Pt. 1, at 183 (1975) (Exhibit 5 to testimony of 
J. Stanley Pottinger, Assistant Attorney General, Civil Rights 
Division). 



14 

Extension of 1982 was under consideration. 5 On February 7, 

1980, the Attorney General objected to a Louisiana statute and a 

Baton Rouge ordinance requiring certain judges to be elected at 

large by a majority vote. Congress was so advised. 6 

Finally, there is evidence in the legislative history of the 

1982 amendments to the Act that Congress understood that Section 

2 applies to judicial elections. Senator Orrin Hatch, Chairman 

of the Senate Judiciary Committee's Subcommittee on the 

Constitution, commented on the broad application of Section 2 and 

stated specifically that it applied to judicial districts. 

For the past seventeen years, Section 2 has stood as a 
basic and non-controversial provision to ensure that any 
discriminatory voting law or procedure could be 
successfully challenged and voided . . 

• • • 

It is important to emphasize at the outset that for 
purposes of Section 2, the term "political subdivision" 
encompasses all governmental units, including city and 
county councils, school boards, ludicial districts, utility 
districts, as well as state legislatures. [Emphasis 
supplied] 

S. Rep. No. 97-417, 97th Cong., 2d Sess. 127, 151 (1982). 

5 Extension of the Voting Rights Act: Hearings Before the 
Subcomm. on Civil and Constitutional Rights of the House Comm. on 
the Judiciary, 97th Cong., 1st Sess. Pt. 3, at 2247 (1982) 
[hereinafter cited as 1982 Hearings] (Attachment 6 to Letter from 
James P. Turner, Acting Assistant Attorney General, Civil Rights 
Division, to Rep. Don. Edwards). 

6 1982 Hearings 2260. 



15 

IV. SECTION 2 PROHIBITS VOTING PRACTICES IN JUDICIAL 
ELECTIONS THAT RESULT IN THE DENIAL OR ABRIDGMENT 
OF MINORITY VOTING RIGHTS  

While the Defendants broadly assert that Section 2 does not 

apply at all to the election of judges (see Memorandum In Support 

of Motion To Dismiss p. 2), 7 a substantial portion of their brief 

is devoted to the argument that claims of racial vote dilution in 

the election of judges (as distinguished from other racially 

discriminatory voting practices) are not covered by Section 2 

because the "one-man one-vote" apportionment principle has been 

held not to apply to judicial elections. The Defendants rely 

principally on Folshouser v. Scott, auaLA, and Wells v. Edwards, 

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

support of this ar,gument. 

As we show below, these cases are distinguishable, and other 

courts have refused to interpret them as foreclosing challenges 

to judicial electoral systems that discriminatorily dilute the 

voting strength of racial groups. 

7 The Defendants also appear to make the startling 
suggestion (see memorandum p. 19) that there is no need for 
protecting minority voting rights in judicial elections because: 

there is no need for any segment of society to be 
represented on the bench in order to insure that its 
voices will be heard. The only voices a judge may 
here are those of the litigants and their attorneys 
as they appear in court to argue the facts and meaning 
of the law. It is the Due Process clause of the Fourteenth 
Amendment, not § 2 of the Voting Rights Act, which assures 
that minorities will not be shut out of fair consideration 
by the court. 



16 

We note initially that, as a general proposition, vote 

dilution claims, as they affect racial or ethnic groups, are 

cognizable under both Section 5 and Section 2 of the Voting 

Rights Act. See, aliaa v. State Board of Elections, supra, 393 

U.S. at 564-567; Georgia v. United States, supr, 411 U.S. at 

531-532; Thornburc v. Gingles, 478 U.S.  , 106 S. Ct. 2752 

(1986); United States v. Uvalde CongOlidated Independent School  

*District, supra, 625 F.2d at 553. In aith v. Martin, supra, the 

Court rejected the defendants argument that Section 5 does not 

cover claims of vote dilution in .judicial elections. The Court 

found that the Defendants reliance on the "one-man one-vote" 

principle, as applied in Holphouper, was misplaced because in 

deciding that case the Court "in no way dealt with, or attempted 

to interpret, the Voting Rights Act of 1965. In fact, neither 

the majority nor the dissent mentioned the Voting Rights 'Act of 

1965." 618 F. Supp. at 412-413. 

The Court also rejected the argument, which the Defendants 

seek to resurrect here, that because judges are not 

"representatives" (their function being to administer the law and 

not espouse the cause of a particular constituency) judicial 

electoral systems that dilute.minority voting strength cannot be 

challenged under the Voting Rights Act because population balance 

is not a relevant consideration in those elections. The court's 



17 

reason, based on the plain language of the Act, for rejecting 

that argument under Section 5 is equally instructive as a basis 

for rejecting it here under Section 2. Said the Court: 

Defendants seek to draw on the distinction made 
in Folshouser between those in the legislative 
branch of government who represent their constituents 
in the making of laws and those in the judicial 
branch who do not represent a constituency but, rather, 
interpret the law. Discounting the interesting 
jurisprudential arguments arising from such an 
attempted distinction, see, Folshouser, 335 F. Supp. 
at 934 (Craven, J. dissenting), it is quite clear that 
no such distinction can be attributed to the [Voting 
Rights] Act. The Act provides: 

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... .42 U.S.C. 
§ 1973. 

As can be seen, the Act applies to all voting 
without any limitation as to who, or what, is the 
object of the vote. 618 F. Supp. at 413. 

Thus, the Defendants' efforts to convince the Supreme Court of 

the merits of these arguments already have been unavailing. 8 

The decision in Faith was followed in Kirksey v. Allain, 635 

F. Supp. 347 (S.D. Miss. 1986). That case involved a state-wide 

challenge to the method of electing chancery and circuit court 

judges in Mississippi. The suit was brought under both Sections 

2 and 5 of the Voting Rights Act as well as the Fourteenth and 

Fifteenth Amendments. The plaintiffs' Section 5 claims involved 

8 See pp. 7-11 of the Defendants' Jurisdictional Statement 
before the Supreme Court in aaith V. Martin, a copy of which is 
attached to this memorandum. 



18 

certain changes to the judicial election system that had not been 

submitted for preclearance. In granting the Plaintiffs' motion 

for a preliminary injunction on the Section 5 issue, the Court 

refused the defendants' invitation that it reject the holding of 

Faith v. Martin and exempt judicial elections from the scope of 

S 5. 9 The Court instead followed buith and held that judicial 

elections should not be exempt from the Act because it "applies 

to all voting without any limitation as to who, or what, is the 

object of the vote." 635 F. Supp. at 349. 

The Court later denied the Defendants' motion to dismiss the 

Section 2 claims for the same reasons. See Order of June 2, 1986 

(copy attached). In denying that motion the Court relied on the 

Fifth Circuit's decision in Voter Information Pro -iect, Inc. v. 

City of Baton Rouge, 612 F2d 208, 212 (5th Cir. 1980) where the 

court of appeals held it was reversible error for the District 

Court to have dismissed for failure to state a claim the 

Plaintiffs' constitutional challenge to the at-large method of 

electing city judges in Baton Rouge and state court judges in 

Baton Rouge Parish, Louisiana. The District Court had based its 

dismissal of those claims on the "one-man one-vote" principle 

reasoning, as the Defendants urge here, that since that principle 

does not apply to the election of judges, the Plaintiffs could 

9 The Defendants in that case raised essentially the same 
arguments the Defendants advance here viz, the Act only applies 
to "representatives" and judges do not fall into that category; 
and vote dilution has ao meaning in judicial elections because 
the "one-man one-vote" principle does not apply to those 
elections. 



19 

not claim that this method of election unlawfully diluted 

minority voting strength. In reversing that ruling, the Fifth 

Circuit, as did the courts in aaith and Kirksey, distinguished 

Holshouser v. Scott,  supra, and the other "one-man one-vote" 

cases affecting judicial apportionments. 

The Fifth Circuit stressed that none of those cases involved 

claims of race discrimination, and pointed out that the court in 

Eolshouser made clear in its opinion that there had been no 

showing of "discrimination" or "invidious" state action. The 

Fifth Circuit then concluded that: 

To hold that a system 6esigned-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. The Supreme Court has 
frequently recognized that election schemes 
not otherwise subject to attack may be 
unconstitutional when designed and 
operated to discriminate against racial 
minorities ... (citing White v. Register  
412 U.S. 755 (1972) and omillion v. 
Lightfoot, 364 U.S. 339 (1960). 612 F.2d at 211 

The Supreme Court consistently has distinguished between the 

equal protection principles that apply to apportionments under 

the "one-man one-vote" doctrine, and electoral systems that 

discriminate on the basis of race. In White v. Register, supra, 

the Court reversed the district court's determination that a 1970 

reapportionment plan for the Texas House of Representatives 

violated the one-man one-vote principle of Reynolds  v. Sims  

5212L1, but it sustained the lower court's finding that multi-



20 

member districts in Dallas and Bexar Counties unlawfully diluted 

the voting strength of blacks and Hispanics. See also, Whitcomb  

v. Chavls, 403 U.S. 124, 142-143 (1971); Davis et al., v. 

Bandemer et al., U.S. (1986) 54 U.S.L. W. 4898, 4901; and 

Gaffney v. Cummings, 412 U.S. 735, 751 (1973) ("A districting 

plan may create multi-member 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' • (citations omitted))." 

In sum, there is no basis under either the Voting Rights Act 

or the United States Constitution for exempting altogether the 

election of judges from Section 2's prohibition against 

discrimination in voting simply because equal population 

standards may not apply to the apportionment of judicial 

districts. Rather, to the extent that the "nonrepresentational" 

role of judges is of relevance, it relates not at all to the 

threshold coverage question presented here, but to the 

evidentiary evaluation of the voting procedure itself under the 

various factors identified by Congress as pertinent to a 

"totality of circumstances" analysis. 10 

10 For example, the factor of "responsiveness" to minority 
voters carries considerable weight under Section 2 in the context 
of elective representation. But, it may well be of little or no 
significance in the evidentiary balance at work under Section 2 
in •reviewing a discriminatory change implicating the election 
procedures for State judges. That does not mean elected judges 
are exempt from Section 2 review, only that the review criteria 
may well be weighted differently. 



• 
21 

CONCLUSION  

Based on the foregoing, the United States submits that 

judicial elections are covered by Section 2 of the Voting Rights 

Act, and that a dismissal of the Plaintiffs' Section 2 claims 

under F.R.C.P. 12b(1) or 12b(6) is not warranted. 

Respectfully submitted, this 96%-day of March 1987. 

SAMUEL T. CURRIN WM. BRADFORD REYNOLDS 
United States Attorney Assistant Attorney General 

GERALD W. JO S 
PAUL F. HANCOCK 
RICHARD J. RITTER 
Attorneys, Voting Section 
Civil Rights Division 
Department of Justice 
10th & Constitution Ave., N.W. 
Washington, D.C. 20530 
(202) 272-6300 



CERTIFICATE OF SERVICE 

I hereby certify that on this'- day of March 1987, I served 

a copy of the foregoing Brief for the United States As Amicus 

Curiae on all counsel of record by mailing, postage prepaid, a 

copy to the following persons: 

Lacy Thornburg 
James Wallace, Jr. 
Assistant Attorney General 
Office of the Attorney General 
P. 0. Box 629 
Raleigh, North Carolina 27602 

C. Allen Foster 
Robert G. McIver 
Foster, Conner, Robson & Gumbiner 
104 North Elm Street 
P. O. Drawer 20004 
Greensboro, North Carolina 27420 

Leslie J. Winner 
Ferguson, Stein, Watt, Wallas & 
Adkins 

Suite 730, East Independence Plaza 
951 South Independenence Boulevard 
Charlotte, North Carolina 28202 

Angus Thompson 
Attorney at Law 
122 West Elizebethtown Road 
Lumberton, North Carolina 28358 

RICHARD J. RE2TER 
Attorney, Voting Section 
Civil Rights Division 
Department of Justice 
10th & Constitution Ave., N.W. 
Washington, D.C. 20530 
(202) 272-6300