Brief for Appellants

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

NO. 

RONALD CHISOM, ET AL, 
Plaintiffs-Appellees 

versus 

EDWIN EDWARDS, ET AL, 
Defendants-Appellants 

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

BRIEF FOR APPELLANTS 

M. TRUMAN WOODWARD, JR., ESQ. 
909 POYDRAS STREET, SUITE 2300 
NEW.ORLEANS, LOUISIANA 70130 

BLAKE G. ARATA, ESQ. 
210 ST. CHARLES AVENUE 
SUITE 4000 
NEW ORLEANS, LA. 70170 

A.R. CHRISTOVICH, ESQ. 
601 POYDRAS, SUITE 2300 
NEW ORLEANS, LA. 70130 

MOISE W. DENNERY, ESQ. 
21ST FLOOR, PAN AMERICAN 
601 POYDRAS STREET 
NEW ORLEANS, LA. 70130 

LIFE CENTER 

SPECIAL ASSISTANT ATTORNEYS GENERAL 

WILLIAM J. GUSTE, JR. 
ATTORNEY GENERAL 
234 LOYOLA AVE., 7th FLOOR 
NEW ORLEANS, LA. 70112 

ROBERT G. PUGH • 
LEAD COUNSEL AND SPECIAL 
ASSISTANT ATTORNEY GENERAL 
330 MARSHALL STREET 
SUITE 1200 
SHREVEPORT, LA. 71101 
(318) 227-2270 



IN THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

NO. 

RONALD CHISOM, ET AL. 
Plaintiffs-Appellees 

VERSUS 

EDWIN EDWARDS, ET AL 
Defendants-Appellants 

CERTIFICATE OF INTERESTED PERSONS  

- Pursuant to'Rule 28.2.1, the undersigned counsel of 

record certifies that the following listed persons have an 

interest in the outcome of this case. These representations 

are made in order that the Judges of this Court may evaluate 

possible disqualification or recusal. 

(1) Plaintiffs: Ronald Chisom, Marie-Bookman, Walter Willard, 

Marc Morial, Henry A. Dillon, III, Louisiana Voter Registration 

Education Crusade. 

(2) Defendants: The Governor, Secretary of State and 

Commissioner of Elections of the State of Louisiana. 



(3) Amicus curiae: John A. Dixon, Jr., Chief Justice of the 

Louisiana Supreme Court; Pascal F. Calogero,•Jr., Associate 

Justice of the Louisiana Supreme Court; Walter F. Marcus, Jr., 

Associate Justice of the Louisiana Supreme Court; United States 

Dept. of Justice; Washington Legal Foundation. 

(4) Counsel for plaintiffs: William P. Quigley, Julius L. 

Chambers, Roy Rodney, Ron Wilson, Charles S. Ralston, C. Lani 

Guinier, Pamela S. Karlan. 

(5) Counsel for Defendants: William J. Guste, Jr., Attorney 

General, Robert G. Pugh, M. Truman Woodward, Blake G. Arata, 

A.R. Christovich, Moise W. Dennery. 

(6) Counsel for amicus curiae: Ira J. Rosenzweig, Charles A. 

Kronlage, Jr., Peter Butler, Paul D. Kamener, Mark Gross. 

Attorney of Record for 
Defendants-Appellants 



STATEMENT REGARDING ORAL ARGUMENT 

Given the importance of the election of Supreme Court 

Justices to the State of Louisiana and its citizens and because 

of the complexity of the legal issues raised in this brief, 

appellants are inclined to request that oral argument be 

granted. However, defendants do not desire oral argument if 

this court should deny defendants' motion for a stay of the 

order of injunctive relief pending appeal-(a pleading filed 

this day) and if scheduling will prevent this court from giving 

expedited consideration to this appeal and ruling prior to the 

July 27-29, 1988 qualifying period for the 1988 First Supreme 

Court District election. In this latter event, appellants will 

waive oral argument. 



• 

TABLE OF CONTENTS 

Page  

Certificate of Interested Persons  

Statement Regarding Oral Argument  

Table of Contents iv 

Table of Authorities vi 

Statement of Jurisdiction 1 

Statement of Issues On Appeal 2 

Statement of the Case 2 

(i) Course of Proceedings and Disposition 
in the Court Below 3 

(ii) Facts 7 

Summary of the Argument  9 

Argument 12 
THE DISTRICT COURT'S DECISION TO ENJOIN 

THE 1988 ELECTION WAS IN ERROR BECAUSE PLAINTIFFS 
HAVE FAILED TO MEET THE FOUR-PRONGED TEST FOR A 
PRELIMINARY INJUNCTION 12 

(1) Plaintiffs' Likelihood of Success 
On the Merits Is Dependent Upon How the 
United States Supreme Court Rules On 
Defendants' Application for Certiorari; 
There Is Also Little or No Likelihood That 
Even If They Prevail On the Merits, They Would 
Thereafter Succeed In Causing An Election To Be 
Held In a Black Majority District For the 1988 
Seat 13 

(2) Even If Plaintiffs Were To Establish 
A Substantial Likelihood of Success on the 
Merits, They Will Not Suffer Irreparable 
Injury If Their Injunction Request is 

Denied 15 

(iv) 



(A) Even if Plaintiffs Prevail on the Merits, 
the 1990 First Supreme Court District Election 
Can Be Held for a Black Majority 
District 15 

(B) Alternatively, Plaintiffs Will Not Suffer 
Irreparable Harm if the 1988 Election Is Not 
Enjoined Because, If They Later Prevail on the 
Merits, the Results of That Election Can Be 
Invalidated 24 

(3) The Benefits, if any, of An Injunction, 
Are Far Outweighed by the Damaging Effects of 
Cancelling The Election 27 

(4) An Injunction Will Not Serve the 
Public Interest 39 

Conclusion 43 

Certificate of Service 46 

(v) 



(- TABLE OF AUTHORITIES 

Cases: Page 

Banks V. Board of Education, 659 F. Supp. 395 
(C.D. III. 
1987)   33-35 

Bell v. Southwell, 376 F. 2d 659 (5th Cir. 1967)  25 

Canal Authority v. Callaway, 489 F. 2d 567, 
(5th Cir. 1974)  12, 36-37 

Cook v. Luckett, 735 F. 2d 912 (5th Cir. 1984)  25 

Dillard V. Crenshaw County, 640 F. Supp. ).247 
(M.D. Ala. 1986)  33, 39 

Hamer v. Campbell, 358 F. 2d 215 (5th Cir. 1966)  25 

Knox v. Milwaukee County Board of Election  
Commissioners, 591 F. Supp. 399 (E.D. Wis. 1984)  36 

Morial v. Judiciary Commission of the State of La., 
565 F. 2d 295 (5th Cir. 1977) (en banc), cert. denied, 
435 U.S. 1013 (1978)  42 

Reynolds v. Sims, 377 U.S. 533 (1964)  18,30,31 

Taylor v. Haywood County, 544 F. Supp. 1122 
(W.D. Tenn. 1982)  36-37 

Constitutions and Statutes: 

Louisiana Constitution of 1974: 
Article 5, §§3-4 3 
Article 5, §22 (B)  29 

Louisiana Constitution of 1921: 
Article 7, §9 3 

Louisiana Constitution of 1913: 
Article 87 3 

(vi) 



IN THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

NO. 

RONALD CHISOM, ET AL, 
Plaintiffs- Appellees 

EDWIN EDWARDS, ET AL., 

Defendants- Appellants 

' ORIGINAL BRIEF OF DEFENDANTS-APPELLANTS 

STATEMENT OF JURISDICTION 

This Court has jurisdiction pursuant to the provisions 

of 28 U.S.C. §1292(a)(1). 



STATEMENT OF ISSUES ON APPEAL 

Did the trial court err by granting plaintiffs' motion 

for a preliminary injunction and cancelling the October 1, 1988 

election for the First Supreme Court District? 

(A) Will the plaintiffs suffer irreparable injury if 

the 1988 election is held, given the fact that even if they 

ultimately prevail on the merits, an adequate prospective 

remedy will then be available to them? 

(B) Alternatively, will plaintiffs suffer irreparable 

harm if the 1988 election results can be invalidated when and 

if plaintiffs prevail on the merits? 

STATEMENT OF THE CASE  

Assuming without admitting -that this Court's earlier 

decision (that S2 of the Voting Rights Act applies to judicial 

elections) will stand, and that plaintiffs will prevail on the 

merits in the district court, should the election for the 1988 

First Supreme Court District be enjoined? Will there be 

irreparable injury to plaintiffs if that election is allowed to 

go forward? That is the major issue which was before the 

district court in this case. Shorn of its discussion of other 



issues, less significant for the resolution of this appeal, the 

district court's thirty-five page opinion discusses irreparable 

injury in just three pages. The reasons cited therein are 

sparse and, we respectfully submit, adequately answered in the 

brief that follows. 

(i) Course of Proceedings and Disposition in the Courts Below 

This suit involves a challenge to Louisiana's 

longstanding method of electing state supreme court justices 

from the First Supreme Court District. That district consists 

of the most populous metropolitan area in the state, the 

Parishes of Orleans, Jefferson, St. Bernard and Plaquemines. 

Pursuant to the requirements of the Louisiana Constitution, 

this district elects two justices to the seven member state 

supreme court, and five other districts each elect one 

justice. 1 

1 See La. Const. of 1974, Art. 5, §§ 3-4. Two justices 
were elected from the identical four-parish First Supreme Court 
District under the Louisiana Constitution of 1921 (Art. 7, 0), 
and two justices were elected from a First Supreme Court 
District that included these four parishes and other 
surrounding parishes under the Louisiana constitutions of 1913 
(Art. 87), 1898 (Art. 87) and 1879 (Art. 83). Under those same 
1921, 1913, 1898 and 1879 Constitutions the other Louisiana 
Supreme Court justices were elected from individual districts. 



Plaintiffs, Ronald Chisom et al., are black voters who 

reside in Orleans Parish. On September 19, 1986, they filed 

suit against the Governor of Louisiana, the Secretary of State 

and the Commissioner of Elections, claiming that the election 

of two justices from the present First Supreme Court District 

dilutes black voting strength and violates the "results" test 

of §2 of the Voting Rights Act and the intent standard of the 

Fourteenth and Fifteenth Amendments. As a remedy for these 

alleged violations, plaintiffs proposed splitting the First 

Supreme Court District into two new districts, one such 

district to consist of Orleans Parish (in which the majority of 

registered voters are black), and the other new district to 

consist of the three suburban parishes. (It is the present 

intention of defendants, if they are given leave to do so by 

this Court, and if it can be accomplished mechanically in short 

order, to file a supplemental brief which contains a map that 

illustrates the concentration of black and white voters on a 

ward and precinct basis in the four parish First Supreme Court 

District). 

The defendants moved to dismiss plaintiffs' complaint 

for failure to state a claim upon which relief could be 

granted. They argued that plaintiffs failed to state a cause 

of action under either the Voting Rights Act, on the ground 

that §2 of the Act does not apply to judicial elections, or 

under the Constitution. The district court agreed, and 

dismissed the plaintiffs' complaint on May 1, 1987. 



Plaintiffs appealed the district court's ruling to 

this court, and requested an expedited hearing of their 

appeal. The request for expedited consideration was denied. 

On February 29, 1988, in an opinion authored by Judge Johnson 

and joined by Judges Brown and Higginbotham, this court 

reversed the district court and ruled that plaintiffs have 

stated viable claims under the Voting Rights Act and the 

Constitution. The defendant's petition for rehearing and 

suggestion for rehearing en banc were denied on May 27, 1988, 

at which time the court issued its mandate. 

The defendants intend to seek review by the United 

States Supreme Court of this court's ruling that the plaintiffs 

have stated a cognizable claim under the Voting Rights Act. 

The major issue presented by that application for certiorari 

will be whether §2 of the Voting Rights Act, as amended in 

1982, applies to judicial elections. 

While defendants' application for rehearing of the 

February 29, 1988 ruling was still pending, plaintiffs filed a 

motion asking this court to enjoin the scheduled October 1, 



1988 election for the First Supreme Court District seat 

presently held by Justice Pascal F. Calogero, Jr. On May 27, 

1988, this request for injunctive relief was denied, for the 

reason that any such request should be made in the first 

instance to the district court. 

Plaintiffs then sought a preliminary injunction from 

the district court, which held a hearing on plaintiffs' motion 

on June 29, 1988. 2 On July 7, 1988, the district court 

enjoined the scheduled 1988 election, and it is from this 

ruling that the defendants now appeal. On July 13, 1988, 

defendants asked the district court to stay its order of 

injunctive relief pending appeal of that order, and on the same 

dat the district court denied that motion. 

2 Interestingly, plaintiffs have represented that after the 
Fifth Circuit rejected their request for injunctive relief 
pending appeal, they did not. intend then to seek a preliminary 
injunction from the district court. What happened was that the 
district court judge provoked a status conference, at which 
plaintiffs stated that they "were prepared at •that time to file 
a motion for summary judgment." Plaintiffs' Reply Memorandum 
in Support of Motion (to the district court) for A Preliminary 
Injunction at 5. However, plaintiffs decided to seek a 
preliminary injunction after the district judge advised them of 
his "reluctance to rush defendants to a final adjudication on 
the merits." Id. at 5 n. 2. 

-6-



(ii) Facts  

The key facts which pertain to the issue of whether or 

not the district court erred by enjoining the election are not 

in dispute. Those facts have been supplied by affidavits and 

stipulations. No testimony was offered at the June 29, 1988 

hearing before the district court. 

In addition to being undisputed, the pertinent facts 

make clear that this is a unique case. A thorough 

understanding of certain essentials is critical to an 

understanding of defendant's position on -appeal, which is that 

the district court's decision to enjoin the election is not 

legally supportable, primarily because it is unnecessary, since 

plaintiffs will not suffer irreparable injury if the 1988 

election is allowed. 

It is most important for any court considering the 

question of whether the 1988 First Supreme Court District 

election should be enjoined to know that: 

(1) Plaintiffs' goal in this litigation is 
the creation of a new district, drawn within 
the contours of the present four-parish 
First Supreme Court District, in which the 
majority of registered voters are black. 
See Plaintiffs' Amended Complaint at V. 



n. 
(2) Any such newly created black voter 
majority district would necessarily consist 
of most or all of Orleans Parish, given the 
black/white voter distribution within the 
present First Supreme Court District. See 
Plaintiffs Statement of Facts As To Which 
They Contend There Is No Dispute, nos. 10-16 
& 62. 

(3) Thus, the other new district which would 
be created by a division of the present 
First Supreme Court District would include 
most or all of the suburban parishes of St. 
Bernard, Jefferson and Plaquemines. 

(4) Elections for the two First Supreme 
Court District seats are, and traditionally 
have been, staggered. 

(5) The First Supreme Court District seat 
scheduled for an election in 1988 is 
presently held by Justice Pascal F. 
Calogero, Jr., a resident of Jefferson 
Parish who is an active candidate for 
reelection in 1988. See affidavit of Pascal 
F. Calogero, Jr., exhibit to Defendant's 
Opposition to Plaintiffs' Motion (in the 
district court) for a Preliminary Injunction. 

(6) The other First Supreme Court District 
seat is held by Justice Walter F. Marcus, 
Jr., a resident of Orleans Parish, and an 
election for that seat is scheduled in 
1990. Justice Marcus has indicated through 
arguments made in amicus curiae briefs filed 
earlier in the district court and in the 
court of appeals that he intends to seek 
re-election in 1990. 

(7) The qualifying period for the 1988 
election is scheduled for July 27-29, 1988. 

(8) Justice Calogero and at least one other 
are active candidates in the 1988 election and 
have expended considerable time and effort 
in preparing for that election. 



SUMMARY OF ARGUMENT  

The foregoing facts demonstrate that the existing 

electoral system will provide plaintiffs with an adequate 

prospective remedy. The drastic step of enjoining the 1988 

election is not necessary as a means of accomplishing that 

remedy. In fact, an injunction which stops the 1988 election, 

while harmful to all voters of the First District because it 

denies them the opportunity which they otherwise would and 

should have, to elect a supreme court justice in 1988, almost 

certainly will not accomplish the plaintiffs' goal of having a 

supreme court justice elected from a black voter majority 

district any sooner than that goal could be accomplished if the 

election is not enjoined. 

Even if plaintiffs ultimately prevail on the merits, 

no election for the district which they espouse could be held 

in 1988. For reasons set forth in detail below, it is 

extremely unlikely that any such election could be held before 

1990. That being the case, there was no need for the district 

court to enjoin the 1988 election. If that election goes 



forward as scheduled and plaintiffs later prevail on the 

merits, the election scheduled in 1990 no doubt will be held 

for the district advocated by plaintiffs, with the, 1990 justice 

incumbent who resides in Orleans seeking reelection from that 

district. In 1998, at the expiration of the ten year term of 

the justice elected in 1988, an election would be held for the 

other newly created (suburban) district. [There is no 

complaint in this litigation by white majority voters that the 

present system is unconstitutional or in violation of §2 of the 

Voting Rights Act or that allowing the 1988 election to go 

forward would in any respect injure their interests.] 

Though the district court supported its order of 

injunctive relief with a lengthy opinion, scant attention was 

given therein to the defendants-' major argument, which is that 

there is no irreparable injury which justifies an injunction 

because the present system will allow for a black majority 

district election in 1990, without the necessity of cancelling 

any election. Nor did the district court offer any convincing 

reasons for rejecting our alternative argument, which is that 

the plaintiffs will not suffer irreparable injury if the 

election is held because the results of that election could be 

invalidated if plaintiffs prevail on the merits. In the brief 

• • • 



S 

treatment which the district judge afforded the irreparable 

harm issue (District Court Opinion Section II(A) at 24-27), he 

acknowledged that an injunction will not provide any present 

benefit or advantage to plaintiffs, but instead speculated that 

plaintiffs might suffer future injuries if the election is not 

enjoined. Id. at 25-26. For reasons set forth in detail 

below, we submit that this speculation on the part of the trial 

judge was unwarranted, and that allowing the 1988 election to 

be held will not cause injury to plaintiffs, now or in the 

future. 

-11-



ARGUMENT 

THE DISTRICT COURT'S DECISION TO ENJOIN THE 1988 ELECTION WAS 
IN ERROR BECAUSE PLAINTIFFS HAVE FAILED TO MEET THE 
FOUR-PRONGED TEST FOR A PRELIMINARY INJUNCTION. 

For the issuance of a preliminary injunction to be 

appropriate, the plaintiffs are required to prove that: 

(1) there is a substantial likelihood that 
they will prevail on the merits; 
(2) they will suffer irreparable injury if  
an injunction does not issue; 
(3) any such injury outweighs the harmful 
effects of the injunction, and 
(4) granting an injunction will serve the 
public interest. 

Canal Authority v. Callaway, 489 F. 2d 567, 572 (5th 
Cir. 1974). 

As set forth below, the case for enjoining the 

election falls short on all four points, particularly so on the 

question of irreparable harm. 

-12- 1 



(1) Plaintiffs' Likelihood of Success on  
the Merits Is Dependent Upon How the United  
States Supreme Court Rules On Defendants'  
Application for Certiorari; There Is Also  
Little or No Likelihood That Even If They  
Prevail On the Merits, They Would Thereafter  
Succeed In Causing An Election To Be Held In 
A Black Majority District For the 1988 Seat  

The threshold issue in this litigation is whether §2 

of the Voting Rights Act applies to judicial elections 

(plaintiffs do not rely on their constitutional claim, 

unresolved up to now, as a ground for seeking injunctive 

relief). The district court concluded that §2 does not apply 

to judicial elections. This court reached a contrary 

conclusion, and defendants will ask the United States Supreme 

Court to consider the issue. 

With all due deference and respect to this court's 

ruling that S2 of the Voting Rights Act applies to judicial 

elections, it cannot be denied that the issue is one of 

national importance. The ultimate resolution of that issue 

could have far-reaching consequences for the 38 states which 

elect members of their judiciaries. As such, defendants submit 

that it is likely that the United States Supreme Court will 

grant their application for certiorari in order to resolve this 

important issue. 3 

3 The defendants' application for certiorari is in the 
process of being prepared and will shortly be filed, well in 
advance of the expiration of the 90 day period allowed for 
filing. 



Defendants do not, as the district court opinion 

suggests (p. 17), ask any court to predict the "odds" that the 

Supreme Court will act favorably to their position. Instead, 

we simply point out that the real possibility that the Supreme 

Court will conclude that §2 of the Voting Rights Act does not 

apply to judicial elections argues against enjoining the 1988 

election. Furthermore, and with due deference to the 

three-judge panel, we submit that there is not a substantial 

likelihood that plaintiffs will prevail on the merits and 

thereafter succeed in causing a black majority district  

election for the 1988 seat. (i.e., a substantial likelihood 

that (1) the defendants' application for.certiorari will be 

denied, or that the Supreme Court will grant certiorari but 

affirm the panel's determination that §2 of the Act applies to 

judicial elections, and that (2) a merits trial will result in 

a determination that the present system violates the Act and 

that (3) upon such a determination, the district court will 

properly employ a remedy which will provide plaintiffs relief 

that they would not be able to obtain unless the 1988 election 

is enjoined (see the succeeding section of this brief)). 



• 
(2) Even If Plaintiffs Were To Establish A 
Substantial Likelihood of Success on the Merits, They  
Will Not Suffer Irreparable Injury If Their Injunction 
Request is Denied [For:]  

(A) If Plaintiffs Prevail on the Merits, the 1990  
First Supreme Court District Election Could Be Held  
For A Black Majority District.  

Any analysis of the irreparable injury issue should be 

prefaced by a consideration of two questions: (1) what do the 

plaintiffs ultimately seek to achieve in this litigation, and 

(2) when is it reasonably possible to expect that such relief 

could be achieved? The Complaint, the briefs filed by the 

plaintiffs on various issues, and the evidence placed in the 

record at the district court's hearing on plaintiffs' motion 

for a preliminary injunction provide clear answers to these 

questions. 

Plaintiffs desire to have created a new supreme court 

district which would include .a portion of the present First 

Supreme Court District and which would have a minority voter 

registration of approximately 50%. See Plaintiffs' Complaint 

at 5. Such a district would necessarily include most or all of 

Orleans Parish. 

-15-



At oral argument before the district court on 

plaintiffs' motion for a preliminary injunction, plaintiffs' 

counsel referred to the possibility of a remedy other than 

dividing the present First District. Specifically, she raised 

the possibility that the remedy, if plaintiffs' prevail, might 

be elimination of the staggered terms but the continuity of the 

present First District, with two justices being chosen in a. 

limited vote option plurality election. 4 However, she was 

quick to point out that she was not advocating such relief on 

behalf of her clients, but merely pointing. out a potential 

remedy which might be employed if plaintiffs prevail. 

Such a remedy would seem extremely unlikely in this 

case. While plurality elections may be appropriate remedies in 

cases where a number of districts are simultaneously 

reapportioned, such a remedy is unlikely here for, among other 

4 The mechanics of such a remedy were not discussed in 
detail at oral argument, but the limited vote option system 
presumably would provide for one election for both First 
Supreme Court seats, with each voter entitled to vote only for 
one candidate and the two candidates who receive the highest 
number of votes being elected. 



reasons, it would produce an indefensibly peculiar method for 

selecting the justices of the Louisiana Supreme Court (i.e., 

five of the supreme court districts in the state would elect 

one justice, in each instance by majority vote and to staggered 

terms, while the First Supreme Court district would elect two 

justices simultaneously and then by what is essentially a 

plurality vote). Defendants do not concede that the present 

election system for the First Supreme Court District violates 

the Voting Rights Act, but if it does, the obvious remedy would 

be to split the current district into two-new districts. That  

is the only remedy advanced in the plaintiffs' complaint (see 

Plaintiffs' Complaint at 5). 

The likely remedy if plaintiffs are successful on the 

merits, then, is the election of a supreme court justice from a 

newly created district which has a black voter majority and 

which of necessity would consist of most or all of Orleans 

Parish. Defendants submit that even if plaintiffs prevail on 

the merits, the earliest that an election for the Orleans 

district advocated by plaintiffs would be held is 1990, 

regardless of whether the 1988 election is enjoined or not.  

-17-



It is a certainty that no election for a newly created 

district will be held in 1988. If plaintiffs do prevail on the 

merits, possibly time would permit a special election for one 

of the two new districts in 1989. This seems unlikely, for the 

district court would probably be inclined to give the Louisiana 

Legislature time to redraw the district itself, an option which 

is always preferable to judicial redistricting. See Reynolds  

•v. Sims, 377 U.S. 533, 585-86 (1964). However, even if a 

special election were called in 1989, it would almost certainly 

be for the new district that includes Jefferson Parish, where 

the 1988 hold-over incumbent resides, rather than for the 

Orleans-based district, where the 1990 incumbent resides. A 

1989 election for an Orleans district would be manifestly 

unfair to the 1988 hold-over incumbent, who resides in 

Jefferson Parish and who also would be deprived by such an 

election of the opportunity to run for re-election in a 

district in which he resides. Furthermore, a special election 

in 1989 for an Orleans district would also be unfair to the 

1990 incumbent, who resides in Orleans Parish and who 

-18-



S 

presumably would be prevented by such an election from running 

for reelection in the year 1990 (the concluding year of his 

present term) from a district in which he resides. Surely 

neither the federal district court nor the state legislature 

would adopt a remedy which effectively gerrymanders both 

incumbents, or one of the incumbents, out of the opportunity to 

seek reelection, when a fairer alternative (holding the 

election for the Orleans district in 1990) is readily 

available. 5 

5 Plaintiffs seem to be of the view that if the present 
system violates §2 of the Voting Rights Act, it would be 
fitting not to have an incumbent running in the first election 
for the new district which they advocate. See Plaintiffs' 
Reply Memorandum in Support of Motion (in the district court) 
for a Preliminary Injunction at 10-11 n. 6. This argument has 
no merit. Even if one were to assume (though defendants do 
not) that the present system is in violation of §2 of the 
Voting Rights Act as amended in 1982, both of the First 
District incumbents were elected to the supreme court years 
before that amendment, in fact the years 1974 and 1980 
respectively, at a time when there did not exist the asserted 
impediments created by the 1982 amendment to the Voting Rights 
Act. For this reason, the district court was incorrect when it 
stated (p. 25 of the opinion) that "the justice who won his 
seat in 1974 [did so] under a voting system that at this 
preliminary point has been determined to have been prima facie  
illegal." There is no reason why either of the two longtime 
incumbent justices for the First Supreme Court District should 
be denied the right to run for re-election as incumbents. 



Thus, whether a 1989 special election could be held or 

not, it is highly probable that the first election for the 

Orleans district would not be held until 1990. (In addition to 

considerations of the parsihes of residence of the two 

incumbents, other factors which make a 1989 special election 

unlikely are the uncertain delays of litigation, as one can 

only speculate as to when a final determination on the merits 

will actually be made, and the "significant lead tiffe" which 

plaintiffs assert will be required for any black candidate to 

mount a serious campaign for a seat on the supreme court, see 

Plaintiffs' Statement of Facts As to Which They Contend There 

Is No Dispute, No. 64, and the district court opinion at 8). 

That being the case, there is simply no need to enjoin the 1988 

election, as there is already an election scheduled in 1990 in  

which the incumbent is an Orleans resident, and that election 

should be designated as the election for a new chiefly Orleans 

Parish district. 

Plaintiffs have argued in response to this contention 

that regardless of whether an election is held for their 

district in 1990, they would still suffer irreparable harm if 



an election is held in 1988 under a system that dilutes black 

voting strength. This is a highly theoretical argument at 

best. Because plaintiffs have the same prospects for relief 

regardless of whether the 1988 election is held (i.e., an 

election for a black majority district in 1990), their 

interests are not irreparably harmed if the 1988 election is 

allowed to go forward and is followed in 1990 by an election 

for a black voter majority district. 

In fact, such a remedy would allow minority voters 

(and candidates) the opportunity to participate in both the 

regularly scheduled 1988 election, held for the present First 

Supreme Court District, and a 1990 election held for the 
_ 

minority district (if plaintiffs prevail on the merits). On 

the other hand, if the 1988 election is cancelled, all voters 

will be denied the opportunity to participate in the election 

process. 

The district court acknowledged that enjoining the 

election provides no present advantage to black voters. See 

District Court Opinion at 24-25. Further, the district court 

provided only two reasons in support of its conclusion that 

allowing the election to be held would cause plaintiffs 

irreparable harm. First, the district court theorized that 



allowing the 1988 election to go forward might have a future  

detrimental impact on black candidates, in that the justice 

elected in 1988 would have an undue advantage as a recently 

elected incumbent in any subsequently held special election. 

Id. at 26. Secondly, the district court stated that if the 

1988 election is held, there would be no guarantee that the 

1990 election would be held for the black majority district 

rather than a newly created suburban district. 

We respond to these contentions as follows. The 

district court's reasoning regarding the supposed advantage to 

the 1988 incumbent in a special election held shortly 

thereafter is flawed in at least three major respects. First, 

under the solution proposed herein if plaintiffs prevail on the 

merits, the justice elected in 1988 would not have to run again 

in a special election, for the 1990 election would then be held 

for the majority black district. Because of the availability 

of that remedy, there would be no need to overturn the results 

of the 1988 election (a harsh remedy which is rarely employed 

under any circumstances, as discussed in the section 2(B) of 

this brief). Secondly, the district court assumed that the 

justice elected in 1988 would be a candidate in any special 

election called shortly thereafter for a black majority 

district. Of course that would not be the case if, as likely, 



the 1988 election were allowed to stand, but even if not and 

elections for two new districts were called, there is no reason 

to assume that the justice elected in 1988 would run in the 

new, mainly Orleans District. Incidentally, as earlier noted, 

the 1988 incumbent resides in Jefferson Parish, within the 

suburban area, while the 1990 incumbent resides in Orleans 

Parish, which is populated in part by the large majority of all 

blacks who reside within the present First Supreme Court 

District. Thirdly, even if the justice elected in 1988 were to 

run shortly thereafter in a black majority district as a 

recently elected four parish incumbent, it is sheer speculation 

to say that incumbency under those circumstances would 

constitute a significant or unfair advantage, and it is 

possible that under those circumstances incumbency and the 

recent election by a four parsih constituency could have 

disadvantages. 

The district court also expressed concern that the 

1990 race would not necessarily be provided for a black 

majority district, and that, instead, the choice of which new 

district has the first election might be randomly made. 

However, if this court reverses the trial court's order of 

injunctive relief on the ground that, as argued by defendants, 

an adequate remedy could be provided by an Orleans Parish race 



in 1990, it is, if not a foregone conclusion, a virtual 

certainty that the 1990 race would be so designated if 

plaintiffs prevail on the merits. 

(2)(B) Alternatively, Plaintiffs Will Not Suffer  
Irreparable Injury if the 1988 Election Is Held  
Because, if They Later Prevail on the Merits, the  
Results of That Election Can Be Invalidated.  

Our primary argument relative to the absence of 

irreparable injury is discussed above (Section 2(A)). Our 

alternative argument, however, is alone sufficient to warrant 

reversing the district court's judgment; If this Court is not 

swayed by our argument that a 1990 election in a black majority 

chiefly Orleans Parish district would provide adequate and 

timely relief for plaintiffs, we submit that the irreparable 

harm prong is still so deficient as to warrant reversal of the 

district court's order of injunctive relief, for there remains 

the possibility that the results of the 1988 election can be 

invalidated after the fact if plaintiffs prevail on the merits. 

We emphasize that if this Court were to accept our 

argument that an injunction should not issue because the 1990 

election provides plaintiffs with the potential for an adequate 

prospective remedy, then the results of the 1988 



election almost surely would not be subsequently invalidated. 

There would be no need to overturn past election results 

because the 1990 election could be held for the black majority 

district. Since this Court has repeatedly emphasized that the 

power of federal courts to invalidate state elections is one 

which should be guardedly exercised and employed only under 

extreme circumstances, see Cook v. Luckett, 735 F.2d 912 (5th 

Cir. 1984); Bell v. Southwel)., 376 F.2d 659, 662 (5th Cir. 

1967); Hamer v. Campbell, 358 F.2d 215 (5th Cir. 1966), 

certainly a prospective remedy which assigned the 1990 election 

to a new black majority district and -leaves the 1988 election 

results undisturbed would pass constitutional muster. 

Incidentally, it is our respectful contention that Hamer is 

readily distinguishable from this case, as it involved a 

decision to overturn a state election under particularly 

onerous circumstances, i.e., the outright deprivation of the 

right of blacks to vote. 

However, assuming that defendants are not correct with 

respect to the foregoing, and that the ultimate result if the 

election is not enjoined is that the results of that election 

would subsequently be invalidated, this very fact, that the 

election results will be invalidated if it is later deemed 

necessary to do so, is all the more reason not to enjoin the 

election. Because the election results can be subsequently 



invalidated, our alternative argument is that there is simply 

no irreparable harm which would be caused by allowing the 

election to be held. From the perspective of the state's 

judicial system, allowing the election to go forward despite 

the risk of future invalidation is preferable to enjoining the 

election, defendants respectfully submit. 

This Court's per curiam opinion of May 27, 1984, 

stated, in dicta, that "any election held under an election 

scheme which this Court later finds to be unconstitutional or 

in violation of the Voting Rights Act is subject to being set 

aside and the office declared to be vacant." While the 

district court seemed to interpret this comment as a suggestion 

that the election should be enjoined to avoid the risk of 

future invalidation, we submit that the panel's comment also 

points to the fact that the possibility of subsequent 

invalidation means that the plaintiffs will not be irreparably 

harmed if the 1988 election is held. In any event, whatever 

meaning was intended by the panel's dicta regarding the power 

of federal courts to invalidate election results, the question 

of whether the 1988 election should be enjoined is now squarely 

before this court, and one reason the election should not be 

enjoined is that allowing it to be held would not cause 

plaintiffs irreparable harm since the election results could, 

if necessary, be invalidated. 



(3) The Benefits, if Any of An Injunction,  
Are Far Outweighed by the Damaging Effects  
of Cancelling The Election  

There are some serious consequences which will ensue 

if this Court cancels the 1988 election. 

First, the normal operation of state law--here, an 

election required by the Louisiana Constitution--will be 

disrupted by a federal court injunction in a suit which not 

only has not yet gone to trial, but in which there has been no 

final determination of the threshold issue (whether §2 applies 

to judicial elections), an issue which will be reviewed on 

certiorari application by the United States Supreme Court. 

Second, the voters within the current First Supreme 

Court District will be totally deprived in 1988 of their right 

to choose by election a justice of the Louisiana Supreme 

Court. Although those voters would be able to participate in a 

special election at some point in the future if the election is 

cancelled, the right to vote, or to otherwise participate in 

the political process, should not be delayed absent extreme 

circumstances. 



Third, the candidates who have been preparing to 

qualify for the 1988 race would be adversely affected if an 

injunction issues at this late stage. The efforts which they 

have made in this 1988 election, see affidavit of Justice 

Pascal F. Calogero, Jr., Exhibit 4 to Defendants' Opposition to 

Plaintiffs' Motion (in the District court) for a Preliminary 

Injunction, will be undercut if the election is delayed. 

Plaintiffs attempt to minimize the disadvantages to 

the 1988 candidates by suggesting that any harm suffered by 

them is inconsequential when balanced against the federally 

protected interests of black voters, No doubt both incumbent 

First Supreme Court District justices will take no issue with 

that assertion. The simple fact is, however, that the 

interests of black voters can be protected without enjoining  

the election. That being the case, the harm that an injunction 

will cause to individual candidates should be given some 

weight. Plaintiffs also suggest that the potential candidates 

have been on notice since the institution of this suit in 1986 

that an order enjoining the 1988 election would be sought. 

This is a totally irrelevant point, as in the real world 

candidates for public office cannot suspend their 



preparations and then campaign on the possibility of judicial 

intervention (candidates have been particularly disinclined to 

do so in this case, since the plaintiffs' complaint was met 

with a successful motion to dismiss and their claims were only 

reinstated this Spring when a panel of this Court reversed the 

district court judgment). 

Fourth, the term of the justice who holds the 1988 

seat expires at the end of this year. Even if, as apparently 

permitted by La. R.S. 42:2, the term of that justice is 

extended until such time as a special election is held, 6 the 

6 .Because the Louisiana Constitution makes no provision 
for the extension of a supreme court justice's term, the 
validity of a hold-over justice's votes might be subject to 
challenge, a disturbing possibility considering the important 
cases which the Louisiana Supreme Court routinely considers, 
such as death penalty cases, and the fact that such cases may 
sometimes be decided by 4-3 votes. See Defendants Memorandum 
in Opposition to Plaintiffs' Motion (in the District Court) for 
a Preliminary Injunction at pp. 16-17, and affidavit of Gregory 
Pechukas, attached thereto. In response to this argument, the 
district court alluded to the fact that Art. 5, S22(B) of the 
Louisiana Constitution provides that the state supreme court 
may appoint judges to fill judicial vacancies. However, it 
seems highly unkikely that this article was intended to apply 
in a situation where an election has been enjoined and the 
incumbent's term expires, for the article provides that any 
judge appointed to fill a vacancy cannot run for that judgeship 
in the next election. Application of that article in this 
context would force the sitting incumbent to leave office 
before having the opportunity to run for reelection or to 
accept an appointment to an interim judgeship (if offered) at 
the penalty of being unable to seek reelection. Such an absurd 
and unjust result surely could not be countenanced by any court. 



fact is that the voters of the First Supreme Court District 

will, after December 31, 1988, be deprived of an elected  

justice serving in the position and voting on the many 

important cases that are considered by the Louisiana Supreme 

Court. Regardless of whether the configuration of the present 

district is ultimately changed as a result of this litigation, 

and even if the 1988 election results were to be invalidated, 

the sounder approach is to have an elected justice serving 

until such a change is made, rather than a justice who is 

appointed, or whose term is extended by court decree. 

Fifth, the state's interests in conducting elections 

under its own constitution and laws are entitled to deference 

from the federal judiciary, in that a state election should not 

be enjoined unless there are compelling reasons for doing so. 

Granted, the federal judiciary has the power to intercede in 

the state electoral process, but when, as here, plaintiffs will 

not suffer irreparable injury, that power should not be 

exercised. 

The damaging consequences of an injunction thus 

outweigh any advantages which plaintiffs would gain from 

cancelling the 1988 election, particularly since, as discussed 

above, plaintiffs can achieve their ultimate goal in this 

litigation even if the 1988 election goes forward. Considering 

the overall circumstances of the case and the adverse 

consequences of an injunction, the district court erred by 

granting plaintiffs' request for a preliminary injunction. 



In the landmark reapportionment case of Reynolds v.  

Sims, 377 U.S. 533 (1964), the Supreme Court recognized that 

federal courts have the discretion not to enjoin pending state 

elections even after there has been a determination that the 

districting scheme for the pending election is unconstitutional: 

However, under certain circumstances, such 
as when an impending election is imminent 
and a State's election machinery is already 
in progress, equitable considerations might 
justify a court in withholding the granting 
of immediately effective relief in.a 
legislative apportionment case, even though 
the existing apportionment scheme was found 
invalid. In awarding or withholding 
immediate relief, a court is entitled to and 
should consider the proximity of a 
forthcoming election and the mechanics and 
complexities of a state's election laws, and 
should act and rely upon general equitable 
principles. With respect to the timing of 
relief, a court can reasonably endeavor to 
avoid a disruption of the election process 
which might result from requiring 
precipitate changes that could make 
unreasonable or embarrassing demands on a 
state in adjusting to the requirements of 
the court's decree. As stated by Mr. 
Justice Douglas, concurring in Baker v. 
Carr, "any relief accorded can be fashioned 
in the light of well-known principles of 
equity." 377 U.S. at 585-86. 

The Reynolds Court went on to commend the district court for 

initially declining to stay a pending election until the state 

legislature "had been given an opportunity to remedy the 

admitted discrepancies in the State's legislative apportionment 

scheme." Id. 



If the Supreme Court expressed reluctance to enjoin 

elections when the existing apportionment system had been found 

unconstitutional, surely any federal court should harbor even 

greater reluctance to cancel state elections when, as here, 

there has been no final determination that the challenged 

system is in violation of the Voting Rights Act or is 

unconstitutional (constitutionality has not been reached at all 

in this litigation, and plaintiffs do not seek a preliminary 

injunction on the strength of constitutional claim), and where,  

even if plaintiffs succeed in their claim that the Voting  

Rights Act has been violated, their remedy need not affect the  

district to which the successful 198-8 cindfdate later  

assigned. 

As the Fifth Circuit's recent memorandum .ruling in 

this case points out, an injunction should be sought at the 

district court level. For that reason most of the decisions 

involving injunctive relief are district court decisions. A 

review of those decisions makes clear that federal district 

courts have been extremely reluctant to cancel state elections 

and have frequently declined to do so upon considering the 

equities of the case. 



In Dillard v. Crenshaw County, 640 F. Supp. 1247 (M.D. 

Ala. 1986), a group of black citizens sought injunctive relief 

pursuant to §2 of the Voting Rights Act. Dillard involved an 

action challenging at-large systems used to elect county 

commissioners in Alabama. There the Court agreed that the 

plaintiffs had proven a likelihood of success on the merits, 

and that their prima facie case on the merits had been 

unrebutted. Nevertheless, the court refused to enjoin or 

postpone the scheduled elections, stating: 

The court does not wish to be left in the 
position of having either to extend the 
terms of incumbents or to appoint temporary 
replacements to serve until the new plans 
are in place. Both alternatives would  
effectively deny the entire electorate the  
right to vote and thus seem to offend basic 
principles of representative government. 
Id. at 1363. (Emphasis added.) 

Banks v. Board of Education, 659 F. Supp. 394 (C.D. 

Ill. 1987), also involved a request for injunctive relief 

pursuant to §2. This was a class action on behalf of all 

blacks registered or eligible to register to vote challenging 

election procedures for several local bodies in the Peoria, 

Illinois, area. Once again the district court refused to 

enjoin the election, holding as follows: 

Assuming, however, that the plaintiffs could 
show a reasonable likelihood of success in 



proving their voting rights claim prior to 
the April 7 election, the Court would not be 
in a position to remedy this possible 
violation until it had made a decision after 
a complete trial on the merits and had the 
opportunity to consider possible forms of 
relief. Thus, if the Court were to enjoin 
the April 7 election, the Court would 
necessarily have to extend the terms of the 
present office holders until after a trial 
is held....In the meantime, the black voters 
of Peoria would be no better off because 
they would still be represented by the 
public officials currently in office, 
elected under the system they claim is 
illegal. On the other hand, enjoining the  
April 7 election would have the effect of  
preventing all of the voters in the  
respective election districts from  
exercising their right to vote and elect new  
representatives this year. (Emphasis added) 
Id. at 403. 

After considering these factors and others, the 

district court concluded that "the best answer is to allow the 

election...to go forward so that the public officials whose 

terms are due to expire can be replaced and so that the 

election procedures, already substantially in place, will not 

be made disruptive or made useless." Id. The court 

specifically noted that enjoining the election "would not serve 

the public interest because it would disrupt an election 

process already well advanced toward election day and deprive 

all of the citizens of the respective voting districts of their 

right to replace public officials whose terms will be expiring 

soon." Id. at 404. 

-34-



The considerations which led the Banks court to deny 

injunctive relief are also present in this case. Enjoining the 

election would not provide relief to any of the estimated 

506,177 registered voters within the First Supreme Court 

District. Instead, those voters would be denied their right to 

participate in the regularly scheduled 1988 election. And to 

what purpose? If plaintiffs had to wait another ten years to 

obtain relief (assuming that they are able to prevail on the 

merits), their argument for pre-election injunctive relief 

might be more compelling. However, because (1) plaintiffs will 

likely obtain such relief through an election for a new 

district in 1990, without the necessity of delaying the 1988 

election (or overturning the results thereof, as discussed in 

the next section of this brief), because (2) plaintiffs do not 

desire a 1988 election, nor, we submit a 1989 election if with 

inadequate lead time for black candidates to participate 

therein, and because (3)prospective change in the system which 

gives them relief in 1990 rather than 1989 is likely and will 

surely pass constitutional muster, the argument for injunctive 

relief is not compelling at all. 



The district court also refused to enjoin an election 

in Knox v. Milwaukee County Board of Election Commissioners, 

581 F.Supp. 399 (E.D. Wis. 1984). The court noted in that S2 

case that an injunction would disenfranchise nearly one million 

voters. The court concluded "that the prejudice created by an 

injunction here would be of the highest magnitude." Id. at 405. 

As noted in plaintiffs' brief to the district court in 

support of the motion for a preliminary injunction, there are 

instances in which district courts have enjoined elections as 

the result of challenges being brought under the Voting Rights 

Act. No one denies that federal district courts have that 

power. However, "[t]he proper focus" of the district court's 

inquiry in each case "is upon the balancing of the equities" 

involved, and "the public interest which is affected by such a 

remedy." Banks, supra, 659 F. Supp. at 404. Also, the Callaway  

test for injunctive relief will be satisfied in some factual 

contexts and not in others. Given the particular facts and 

equities involved in this case, particularly the fact that 

plaintiffs will no doubt achieve an adequate remedy in 1990 

without the necessity of enjoining any election, the Callaway  

requirements for injunctive relief are not satisfied here. For 

example, peculiar facts existed in Taylor v. Haywood County, 



544 F.Supp. 1122 (W.D. Tenn. 1982), a case cited by the 

plaintiff. There Haywood County had employed single member 

districts for the Board of Highway Commissioners since 1937. 

After the 1980 census, the county adopted an at-large 

commission system. The court noted that "It is interesting to 

note that this new reapportionment plan was adopted shortly 

after an increase in complaints by black citizens over the 

conditions of roads in the districts." Id. at 1135. Here, 

however, as discussed at the outset of this brief, the method 

of electing supreme court justices has existed for many years 

(approximately 109 years) and is not a new scheme allegedly 

devised to dilute black votes. 

Given the particular facts and equities involved in 

this case, particularly the fact that plaintiffs if successful 

will achieve their remedy just as soon (in the year 1990) 

without enjoining the 1988 election, the Callaway requirements 

for injunctive relief are not satisfied here. 7 

7 Defendants incorporate by reference here the arguments 
raised at pp. 2-8 of their district court brief in opposition 
to plaintiffs' motion for a preliminary injunction, regarding 
the need to protect the integrity of the election system 
required by the Louisiana Constitution and the potential impact 
which the resolution of this case may have on the judicial 
selection systems of other states. Amicus curiae briefs filed 
herein by John A. Dixon, Jr., Chief Justice of the Louisiana 
Supreme Court, and Pascal F. Calogero, Jr., Associate Justice 
of the Louisiana Supreme Court, set forth additional equitable 
and legal considerations which weigh against enjoining the 1988 
election. See also, however, the amicus curiae briefs filed by 
Justice Walter F. Marcus, Jr. 



fl 
In considering the harm that an injunction would cause 

defendants, the district court's only reasons for concluding 

that no significant harm would, result were that (1) there is no 

showing of harm to the actual defendants, the governor, 

secretary of state and commissioner of elections, other than 

possibly the expense of a special election, and that (2) the 

governor's duty to uphold the law includes the need to protect 

the rights of black voters. 

This analysis entirely misses the point. There is no 

suggestion that enjoining the election would cause harm to the 

personal interests of the named defendants, or that the cost of 

a special election overrides federal constitutional rights. 

The defendants do not appear in their individual capacities, as 

voting machine operators, or as state auditors, but as 

representatives of the people 'of Louisiana and all voters of 

the . First District. The over 500,000 voters in that district 

will be totally denied the right to participate in the 

scheduled election if the injunction is upheld. This is the 

harm to defendants which must be balanced against the asserted 

advantages of an injunction. Enjoining the election is a 

drastic remedy, and defendants have a duty to uphold state law 

in a case where the intervention of the federal judiciary is 

not required in order to vindicate constitutional rights. 



(Th (4) An Injunction Would Not Serve the  
Public Interest  

The damaging consequences of cancelling the election, 

as discussed above, obviously would not serve the public 

interest. Unless the district court's ruling is reversed, the 

voters of the First Supreme Court District will be denied the 

right to participate in the 1988 election, and will at best be 

left with a hold-over or appointed justice, alternatives which 

"offend basic principles of representative government." 

Dillard v. Crenshaw County, supra, 640 F.Supp. at 1263. 

The district court concluded that the public interest 

would be disserved if the 1988 election were to be set aside at 

some point .in the future. First of all, as argued above, there 

is no reason to believe that the election would be set aside. 

We assume that this Court will agree with our argument that 

assigning the 1990 election to a black majority district will 

provide plaintiffs with an adequate prospective remedy. 

Secondly, as also set forth above, even if invalidation of the 

1988 election were to occur, that would be preferable, from 

the perspective of the state's judicial system, to enjoining 

the election. 

The district court further concluded that even if the 

Supreme Court reverses on the issue of the applicability of the 

Voting Rights Act, or even if plaintiffs lose on the merits, it 



is appropriate to enjoin the 1988 election because the 

possibility of a later invalidation of that election will 

dampen the interest in 1988 of both the voters and the 

potential opponents of the 1988 incumbent. The answer to that 

contention is almost self-evident. A legal, constitutional and 

proper state election cannot be aborted because of the impact 

that non-meritorious litigation might have on potential 

candidates and voters. If it were otherwise, an injunction 

against pending elections would be automatic whenever a 

reapportionment suit is filed, and that is certainly not the 

law. 

The district court also was of the view that allowing 

the election to go forward would be adverse to the public 

interest because of the advantages which the justice elected in 

1988 would have if that justice were to run shortly thereafter 

in a special election (recent campaign publicity, etc.). As 

discussed above (in the irreparable injury section of this 

brief) this is not an adequate reason for enjoining the 

election, because (1) there would be no need for such a special 

election if this Court accepts the view that the plaintiffs 

will be provided an adequate prospective remedy in 1990; (2) 

even if such an election were required, there is no reason to 



assume that the justice elected in 1988 would be a candidate in 

the black majority district, or (3) that the advantage of 

running as an incumbent in such a special election would 

necessarily exist. 

Further, the district court stated -that no candidate 

has a legally cognizable interest in seeking election from a 

district which has a configuration that violates the Voting 

Rights Act. We have three responses. First, it would be more 

accurate to say that no candidate has a legal right to seek 

election or to be elected from a district to the prejudice of 

the constitutional rights of black voters or other minorities. 

That is not the case here, however, for as discussed above a 

1988 election would not prejudice the rights of such voters 

when followed by an election for a black majority district in 

1990. Secondly, the Supreme Court in Reynolds v. Sims  

explicitly recognized that pending state elections can go 

forward even after a finding that the districts in question are 

drawn in violation of the Constitution and ultimately must be 

reapportioned, as long as the possibility of adequate 

prospective relief is present. If the Court had been of the 

view that no election can ever be held under a districting 



system that is about to be reapportioned, it would have said 

so. Instead, it specifically made clear that such is not the 

case. Thus candidates in such an election do have a legally 

cognizable interest, that is, an interest in running for 

office. Third, the authority cited by the district court on 

this issue, Morial V. Judiciary Commission of the State of  

Louisiana, 565 F. 2d 295 (5th Cir. 1977)(en banc), cert.denied, 

435 U.S. 1013 (1978), simply does not discuss the issue in any 

detail, and is not on point. In fact, Morial recognizes the 

importance of protecting an individual's right to seek elective 

office, and to that extent supports defendants' contention that 

the rights of those who seek_to_run_in_1988 should not be 

disregarded unless there are compelling reasons for doing so. 

The district court also posited that allowing the 

justice elected in 1988 to serve a full ten year term. would 

constitute a disservice to the voters of the white majority 

suburban area, who, he assumes, would object to having a 

justice who is elected from the present four parish area 

serving them until 1998. This consideration does not present 

the necessary compelling need to enjoin the 1988 election, as 

representatives of white voters in the suburban areas have not 

intervened or otherwise appeared in this litigation. They do 

not complain therefore, either that they constitute a minority 



(which of course they could not, whether in the four parishes 

or only in the three suburban parishes) or that the system 

violates the Voting Rights Act or unconstitutionally dilutes 

their voting strength. 

CONCLUSION 

The district court need not, and should not have 

enjoined the 1988 election for the First Supreme Court 

District. The United States Supreme Court may still rule in 

this matter adversely to plaintiffs, and in all events 

plaintiffs' success on the merits will not likely include a 

black majority district election for the 1988 seat, factors 

which cast uncertainty on their alleged "likelihood of success" 

on the merits. But even if it were assumed, for the sake of 

argument, that plaintiffs have established a likelihood of 

success on the merits, they have not established irreparable  

injury. In fact, even if plaintiffs ultimately prevail on the 

merits, the present system of scheduled elections for the First 

Supreme Court District would allow the court to fashion an 

adequate prospective remedy without the necessity of enjoining 

the 1988 election, nor invalidating the election to be held in 



1988. Alternatively, allowing the 1988 election to be held 

would not cause irreparable injury to plaintiffs because if 

they later prevail on the merits, the election results could be 

invalidated. 

Under these circumstances, there is no justification 

for telling over five hundred thousand registered voters within 

the First Supreme Court District that they cannot exercise the 

right they would otherwise have, to vote in the scheduled 1988 

election, and instead must wait to vote until such time as this 

case is resolved on the merits. Instead, the 1988 election 

should go forward, as scheduled. 

. For these reasons, defendants respectfully submit that 

the district court's ruling of July 7, 1988 should be reversed. 



All of the above and foregoing is thus respectfully 

submitted. 

WILLIAM J. GUSTE, JR. 
ATTORNEY GENERAL 

Louisiana Dept. of Justice 
234 Loyola Avenue 

New Orleans,'La. 70112 
(504) 568-5575 - 

M. TRUMAN WOODWARD, JR. 
909 Poydras, Suite 2300 
New Orleans, La. 70130 

BLAKE G, ARATA 
201 St. Charles Avenue 
New Orleans, La. 70130 

By: 

A.R. CHRISTOVICH 
1900 American Bank Bldg. 
New Orleans, La. 70130 

MOISE W. DENNERY 
601 PoydraS Street 
New Orleans, La. 70130 

kZO. ERT G. PUGH 
`.eid Counsel 

330 Marshall Street, Suite 1200 
Shreveport, La. 71101 

(318) 227-2270 



CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that a copy of the foregoing 

appellant brief has this day been served upon the plaintiffs 

through their counsel of record: 

William P. Quigley, Esquire 
631 St. Charles Avenue 
New Orleans, Louisiana 70130 

Julius L. Chambers, Esquire 
Charles Stephen Ralston, Esquire 
C. Lard Guinier, Esquire 
Ms. Pamela S. Karlan 
99 Hudson Street 
16th Floor 
New York, New York 10013 

Roy Rodney, Esquire 
643 Camp Street 
New Orleans, Louisiana 70130 

Ron Wilson, Esquire 
Richards Building, Suite 310 
837 Gravier Street 
New Orleans, Louisiana 70112 

by depositing the same in the United States Mail, postage 

prepaid, properly addressed. All parties required to be served 

have been served. 

Shreveport, Caddo Parish, Louisiana, this the / 7 day 

of July, 1988. 

Robert G. Pugh, 

Lead Counsel