Correspondence from Rubin to All Counsel; Motion and Order to Allow Filing of a Post-Hearing Memorandum by the Louisiana District Judges Association; Supplemental Post-Hearing Brief Amicus Curiae of the Louisiana District Judges Association

    RUBIN, CURRY, COLVIN & JOSEPH  
A PROFESSIONAL LAW CORPORATION 

MICHAEL H. RUBIN 
RICHARD A. CURRY 
R. KEITH COLVIN 
MARY TERRELL JOSEPH 
KELLY WILKINSON 
DON R. SCHNEIDER 
BERNARD J. SHARKEY, JR. 
RODOLF0 J. AGUILAR, JR. 
STEPHEN P. STROHSCHBN 
MELANIE M. HARTMANN 
CHRISTINA B. PECK 
R. STEVEN KUMCZAK 
SHANNAN SWEF-NEY RIEGER 
JOSE R. TARAJANO, JR. 
DENISE NELSON AKERS 

To All Counsel of Record: 

December 22, 1987 

RE: Ronald Chisom, et al 
v. Edwin Edwards, et al 
United States Court of Appeals 
For the Fifth Circuit 
No. 87-3463 

SUITE 1400 
ONE AMERICAN PLACE 

BATON ROUGE, 
LOUISIANA 70825 

504/383-1400 

TELECOPIER: 504/343-3076 

Enclosed is a copy of a Motion and Order to Allow the Filing of a Post-
Hearing Brief Amicus Curiae by the Louisiana District Judges Association and a copy of 
the Post-Hearing Brief. 

Sine 

Michael H. Ru 

MHR/dsc 
Enclosures 



IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

No. 87-3463 

RONALD CHISOM, ET AL, 
Plaintiffs-Appellants 

VE RSUS 

EDWIN EDWARDS, ET AL, 
Defendants-Appellees 

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

MOTION AND ORDER TO ALLOW FILING OF A 
POST-HEARING MEMORANDUM BY THE, 

LOUISIANA DISTRICT JUDGES ASSOCIATION 

BY ATTORNEYS: 

Michael H. Rubin, Thal Counsel 
RUBIN, CURRY, COLVIN & JOSEPH 
A Professional Law Corporation 
Suite 1400, One American Place 
Baton Rouge, Louisiana 70825 
(504) 383-1400 



IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

No. 87-3463 

RONALD CHISOM, ET AL, 
Plaintiffs-Appellants 

VERSUS 

EDWIN EDWARDS, ET AL, 
Defendants-Appellees 

MOTION TO ALLOW THE FILING OF A POST-HEARING MEMORANDUM BY 
THE LOUISIANA DISTRICT JUDGES ASSOCIATION 

NOW COKES the Louisiana District Judges Association (the "LDJA"), 

through its undersigned counsel, and moves this Court for permission to file the attached 

post-hearing memorandum on the following grounds: 

1. 

The LDJA has been allowed to file a brief in this matter as amicus curiae. 

2. 

Counsel for the LDJA was present in Court during the hearing on December 

10, 1987, and the LDJA wishes to provide the Court with its response to one of the 

questions raised during oral argument, as well as note an alternative position, in the 

event that this Court determines that Section 2 of the Voting Rights Act applies to the 

judiciary. 



THEREFORE, the LDJA prays for permission to file the attached short 

memorandum. 

BY ATTOR Sr-

Michael H. Rubin, Tri 
RUBIN, CURRY, COLVIN & JOSEPH 
A Professional Law Corporation 
Suite 1400, One American Place 
Baton Rouge, Louisiana 70825 
(504) 383-1400 

CERTIFICATE 

I certify that a copy of this motion has been mailed today, postage prepaid, 
to: 

Attorneys for Defendants 
Mr. M. Truman Woodward, Jr. 
1100 Whitney Building 
New Orleans, Louisiana 70 130 

Blake G. Arata 
210 St. Charles Avenue, Suite 4000 
New Orleans, Louisiana 70 170 

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

Mr. William J. Guste, Jr. 
Attorney General 

Kendall L. Vick 
Assistant Attorney General 

Eavelyn T. Brooks 
Assistant Attorney General 
Louisiana Department of Justice 
234 Loyola Avenue, 7th Floor 
New Orleans, Louisiana 70 112 



William P. Quigley 
631 St. Charles Avenue 
New Orleans, Louisiana 70130 
Attorney for Plaintiffs 

Roy Rodney 
643 Camp Street 
New Orleans, Louisiana 70130 
Attorneys for Defendants 

Julius L. Chambers 
Charles Stephen Ralston 
C. Lani Guinier 

Pamela S. Karlan 
99 Hudson Street, 16th Floor 
New York, New York 10013 
Attorneys for Plaintiffs 

Wm. Bradford Reynolds 
Assistant Attorney General 
Roger Clegg 
Deputy Assistant Attorney General 
Jessica Dunsay Silver 
Mark L. Gross 
Attorneys 
Department of Justice 
Washington, D.C. 20530 
Attorneys for United States Justice Department 

Ron Wilson 
Richards Building, Suite 310 
837 Gravier Street 

New Orleans, Louisiana 70112 
Attorneys for Defendants 

Baton Rouge, Louisiana this 22nd d 

ichael Fr.-Rubin  



ORDER 

Considering the Motion of the Louisiana District Trial Judges Association: 

IT IS ORDERED THAT the Louisiana District Trial Judges Association be 

granted permission to file their Supplemental Post-Hearing Brief Amicus Curiae. 

Signed on this day of , 19 • 

Judge, United States Court of Appeals, 
Fifth Circuit 

4 



IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

No. 87-3463 

RONALD CHISOM, ET AL, 
Plaintiffs-Appellants 

VERSUS 

EDWIN EDWARDS, ET AL, 
Defendants-Appellees 

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

SUPPLEMENTAL POST-HEARING BRIEF AMICUS CURIAE 
OF THE LOUISIANA DISTRICT JUDGES ASSOCIATION 

BY ATTORNEYS: 

Michael H. Rubin, Trial Counsel 
RUBIN, CURRY, COLVIN & JOSEPH 
A Professional Law Corporation 
Suite 1400, One American Place 
Baton Rouge, Louisiana 70825 
(504) 383-1400 



IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

No. 87-3463 

RONALD CHISOM, ET AL, 
Plaintiffs-Appellants 

VERSUS 

EDWIN EDWARDS, ET AL, 
Defendants-Appellees 

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

SUPPLEMENTAL POST-HEARING BRIEF AMICUS CURIAE 
OF THE LOUISIANA DISTRICT JUDGES ASSOCIATION 

BY ATTORNEYS: 

Michael H. Rubin, Trial Counsel 
RUBIN, CURRY, COLVIN Sc JOSEPH 
A Professional Law Corporation 
Suite 1400, One American Place 
Baton Rouge, Louisiana 70825 
(504) 383-1400 



TABLE OF CONTENTS 

SUMMARY OF ARGUMENT 1 

ARGUMENT 2 

I. 
RESPONDING TO THE COUR'rS QUERY: 
THE "REPRESENTATIVE" POSTTIONS DEALT WITH IN OTHER 
CLAIMS ASSERTED UNDER SECTION 2 OF THE VOTING RIGHTS 
ACT ARE SUFFICIENTLY DIFFERENT FROM THE JUDICIAL 
POSITIONS DEALT WITH HERE TO WARRANT THIS 
COURT'S FINDING THAT SECTION 2 OF THE VOTING RIGHTS 
ACT DOES NOT APPLY TO THE JUDICIARY  2 

IL 
EVEN IF SECTION 2(A) APPLIES TO THE JUDICIARY, 
SECTION 2(B), AND THE STATISTICAL EVIDENCE 
DETERMINATIVE IN THORNBURG DO NOT 6 

CONCLUSION  7 



TABLE OF AUTHORITIES 

CASES 

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

Foster v. Laredo Newspapers, 541 S.W.2d 809 (Texas 
1976), certiorari denied, 429 U.S. 1123, 97 
S.Ct. 1160, 51 L.Ed.2d 573 
(1977) 3 3 

Rogers v. Lodge, 458 U.S. 613, 623, 102 S.Ct. 
3272, 3279, 73 L.Ed.2d 1012 (1982) 4 

Thornburg v. Gingles, U.S. 106 S.Ct. 
2752, 92 L.Ed.2d 25 (1986)   4,6 

Voter Information Project v. City of Baton Rouge, 
612 F.2d. 208 (5th Cir. 1980)  7 

Wells v. Edwards, 347 F.Supp. 453 (M.D. La. 1972), 
409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 

M -0973)     6 

LAW REVIEWS 

28 Howard Law Journal, 463 and 492 (1985)   5 



SUMMARY OF ARGUMENT 

1. "Bright-line" distinctions can be drawn so that one can validly 

construe "representative" as not applying to the judiciary. 

3. Even if Section 2(A) of the Voting Rights Act is held to apply to the 

judiciary, this Court should either withhold comment on whether Section 2(B) applies, or, 

alternatively, should hold that the type of statistical proof under Section 2(B) approved 

by Thornburg v. Gingles does not apply to the judiciary. 



ARGUMENT 

The Louisiana District Trial Judges Association ("LDJA") submits this 

supplemental brief on two points. The first is to respond to a question members of the 

Court addressed to counsel for the Defendants during oral argument. The second is to 

provide alternative arguments on Section 2(B) if the Court determines that Section 2(A) 

of the Voting Rights Act applies to the judiciary. 

I. 
RESPONDING TO THE COURT'S QUERY: 

THE "REPRESENTATIVE" POSITIONS DEALT WITH IN OTHER 
CLAIMS ASSERTED UNDER SECTION 2 OF THE VOTING RIGHTS 
ACT ARE SUFFICIENTLY DIFFERENT FROM THE JUDICIAL 

POSITIONS DEALT WITH HERE TO WARRANT THIS COURT'S FINDING 
THAT SECTION 2 OF THE VOTING RIGHTS ACT DOES NOT APPLY 

TO THE JUDICIARY 

At the hearing on December 10, 1987, the Court seemed especially 

concerned about what distinctions could be drawn for the Court to hold that 

"representative" does not include judges. 

The Court asked counsel in oral argument to distinguish a jurist from a 

surveyor, the Court implying an elected surveyor was not a "representative" because he 

performed as a functionary rather than in some form of constituent-influenced position. 

The LDJA contends that to look at "function" in office rather than to the branch of 

government in which the person serves is misleading. 

The branch of government in which a judge serves, the office of a judge, 

and the functions of a judge are all uniquely and distinctly different from those of a 

county surveyor, a county coroner, or a county assessor. While it may be true that the 

coroner, the surveyor, and the assessor do not create and pass laws, and thus in one sense 

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can be said not to perform any "legislative" functions, 1 the LDJA submits that surveyors, 

assessors, and coroners are "representatives" because each serves as a member of either 

the legislative or executive branch of government. This, then, is the distinction; it is the 

LDJA's contention that "representative" refers to the legislative and executive branches  

of government and to all those who are elected to serve in any capacity in those two 

branches. The term "representative" does not refer to those who serve in the judicial 

branch of government. 

The framers of the Constitution of the United States of Louisiana created 

real and important distinctions among the three branches of government, distinctions 

that are crucial to the operation of our democratic system. This Court should not ignore 

these distinctions in an attempt to focus narrowly on "function." The executive branch 

of government enforces laws. Whether the executive is the President of the United 

States, the governor of the state, or a county surveyor, each is involved in making a 

decision on the enforcement of laws. Which laws to enforce, the interpretation placed 

upon the laws during the enforcement process, and the degree of enforcement may well 

be affected by the elected representative's view of his or her constituency. No elected 

member of the legislative or executive branch has a purely ministerial role that allows 

for no discretion whatsoever.2 

1 The LDJA has no argument with Dillard v. Crenshaw County, Ala., 831 F.2d 
246 (11th Cir. 1987), which case was relied on by the appellants in their 
"Supplemental Reply Brief." In Dillard the issue was whether the election 
of an at-large chairman of a county commission would violate Section 2 of 
the Voting Rights Act. The defense was based upon the duties of the 
chairperson. The Court rejected an analysis based upon whether the 
chairperson would have broad ranging or "only a limited legislative role." 
831 F.2d at 250. The LDJA does not contend that Section 2 is a "function" 
based test; rather, the LDJA's position is that Section 2 applies to only two 
of the three branches of government. 

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Thornburg v. Gingles itself is indicative of the use to which the term 

"representative" has been put. The word "representative" appears many times in the 

opinion as a synonym for members of the legislative or executive branch of government. 

"The theoretical basis for this type of impairment is 
that where minority and majority voters consistently 
prefer different candidates, the majority, by virtue of 
its numerical superiority„ rill regularly defeat the 
choices of minority voters." 

Footnote 14: Not only does qvloting along racial lines' 
deprive minority voters of their preferred 
representative in these circumstances, it also 'allows 
those elected to ignore [minority] interests without 
fear of political consequences,' Rogers v. Lodge, 458 
U.S. 613, 623, 102 S.Ct. 3272, 3279, 73 L.Ed.2d 1012 
(1982), leaving the minority effectively 
unrepresented." 106 S.Ct. at 2765. [emphasis added] 

2 The LDJA is aware of the case of Foster v. Laredo Newspapers, 541 S.W.2d 
809 (Texas 1976), certiorari denied, 429 U.S. 1123, 97 S.Ct. 1160, 51 
L.Ed.2d 573 (1977) in which a county surveyor was held to be a "public 
official" for purposes of a libel action. While the Court's opinion does 
contain loose terminology in dicta that the tasks of the surveyor "did not 
require that he act in a representative capacity," it nevertheless found that 
he was a public official and was required to exercise some (although not 
necessarily a "significant amount" of discretion) even though he was not 
paid for his work as county surveyor. Foster, however, did not contain any 
analysis of the term "representative," did not concern a statute that 
expressly used the term "representative," and ultimately rejected any 
distinctions based on the function of the surveyor as opposed to other 
"public figures." 

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This kind of statement3 shows that the Court views Section 2 as applying to 

those in government who can or should take into account minority interests. It 

demonstrates how far afield one goes when trying to stretch "representative" to include 

the judiciary. A judge is not supposed to accept, take account of, or ignore majority or 

3 Also see, in Thornburg v. Gingles: 

"Appellees, Black Citizens of North Carolina, who were registered to vote, 
challenged seven districts, one single-member and six multimember 
districts, alleging that the redistricting scheme impaired black citizens' 
ability to elect representatives of their choice in violation of the 
Fourteenth and Fifteenth Amendments to the United States Constitution 
and of 52 of the Voting Rights Act." 106 S.Ct. at 2758, 2759. [footnotes 
omitted, emphasis added] 

"An understanding of both §2 and of the way in which multimember 
districts can operate to impair blacks' ability to elect representatives of 
their choice is prerequisite to an evaluation of appellants' contentions." 
106 S.Ct. at 2762. [emphasis added] 

"Appellees contend that the legislative decision to employ multimember, 
rather than single-member, districts in the contested jurisdictions dilutes 
their votes by submerging them in a white majority, thus impairing their 
ability to elect representatives of their choice. Footnote 12: The claim we 
address in this opinion is one in which the plaintiffs alleged and attempted 
to prove that their ability to elect the representatives of their choice was 
impaired by the selection of a multimember electoral structure . . . " 106 
S.Ct. at 2764. [footnote 11 omitted, emphasis added] 

"In establishing this last circumstance, the minority group demonstrates 
that submergence in a white multimember district impedes its ability to 
elect its chosen representatives." 106 S.Ct. at 2767. Amended 52 asks 
instead 'whether minorities have equal access to the process of electing 
their representatives.'" 106 S.Ct. at 2778 (emphasis added), quoting with 
approval from an article at 28 Howard Law Journal, 463 and 492 (1985). 

"We cannot say that the District Court, composed of local judges who are 
well-acquainted with the political realities of the State, clearly erred in 
concluding that use of a multimember electoral structure has caused black 
voters in the districts other than House District 23 to have less opportunity 
than white voters to elect representatives of their choice." 106 S.Ct. at 
2782. 

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minority interests out of the fear of political consequences; a judge is to apply the 

constitution and law to the facts of the case regardless of any other matter. 

The distinction, then between a county auditor, county assessor, or county 

coroner (on the one hand) and a judge (on the other hand) is dependent not upon the title 

of the position, not upon the nomenclature of the office, but rather upon the branch of 

government in which the elected official serves. A judge, as a member of the judicial 

branch of government, cannot have any "representative" role at all; it is, however, 

conceivable and usual that members of executive and legislative branches (whether they 

are surveyors, auditors, mayors, or assessors) do serve in a representative capacity, and 

the basis of their constituency may play a role in the function of their duties. 

IL 
EVEN IF SECTION 2(A) APPLIES TO THE JUDICIARY, 
SECTION 2(B), AND THE STATISTICAL EVIDENCE 

DETERMINATIVE IN THORNBURG DO NOT 

The LDJA does not admit that Section 2 was ever meant to apply to the 

judiciary. If this Court rules, however, that Section 2(A) applies, it is the LDJA's 

alternative position that Section 2(B) does not apply to the judiciary. The LDJA first 

points to pages 30 through 35 of the State's (appellees) original brief. The statistical 

evidence, of the type used in Thornburg v. Gingles and referred to in Section 2(B), is 

limited solely to statistical evidence in dealing with "representatives;" namely members 

of the executive and legislative branches of government. This distinction makes sense 

because, in essence, the Thornburg test is a one-man one-vote test. Thornburg mandates 

the setting up of hypothetical single-member districts to make a statistical evaluation 

under Section 2(B). Since single-member districts themselves cannot be used in judicial 

elections [Wells v. Edwards, 347 F.Supp. 453 (M.D. La. 1972), aff'd 409 U.S. 1095, 93 

- 6 - 



S.Ct. 904, 34 L.Ed.2d 679 (1973)1, statistical evidence to prove a violation of Section 2(B) 

(based on hypothetical single-member districts) likewise should not be used for judicial 

elections. 

CON CLUSION 

There is no question that Plaintiffs, in a properly pleaded complaint, may 

have an opportunity to prove intentional and purposeful discrimination in violation of the 

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

1980). For the reasons stated, however, the Voting Rights Act should be held not 

applicable to the judiciary. 

In the alternative, if this Court holds Section 2 does apply to judges, it 

should either expressly refrain from deciding what type of evidence may be sufficient to 

prove a violation, or, in the further alternative, expressly disapprove of statistical 

evidence based (under Thornburg v. Gingles) on one-man one-vote assumptions. 

BY ATTORN 

MIN, CURRY, COLVIN & JOSEPH 
r A Professional Law Corporation 
Suite 1400, One American Place 
Baton Rouge, Louisiana '70825 
(504) 383-1400 

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CERTIFICATE OF SERVICE 

I certify that a copy of this brief has been mailed today, postage prepaid 
to: 

Mr. M. Truman Woodward, Jr. 
1100 Whitney Building 
New Orleans, Louisiana 70130 

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

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

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

Roy Rodney 
643 Camp Street 
New Orleans, Louisiana 70130 

Wm. Bradford Reynolds 
Assistant Attorney General 
Roger Clegg 
Deputy Assistant Attorney General 
Jessica Dunsay Silver 
Mark L. Gross 
Attorneys 
Department of Justice 
Washington, D.C. 20530 

Mr. William J. Guste, Jr. 
Attorney General 

Kendall L. Vick 
Assistant Attorney General 

Eavelyn T. Brooks 
Assistant Attorney General 
Louisiana Department of Justice 
234 Loyola Avenue, 7th Floor 
New Orleans, Louisiana 70112 

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

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



COUNSEL OF RECORD FOR PARTIES IN CLARK V. EDWARDS: 

Counsel of Record for Plaintiffs:  
Ernest L. Taylor 
Pamela Taylor-Johnson 
T. Richardson Bobb 
JOHNSON, TAYLOR AND THOMAS 
5700 Florida Boulevard 
Republic Tower, Suite 209 
Baton Rouge, Louisiana 70806 
(504) 929-7676 

William L. Robinson 
Frank R. Parker 
Robert B. McDuff 
Samuel Issacharoff 
Lawyers Committee for Civil Rights Under Law 
1400 Eye Street, N.W. #400 
Washington, D.C. 20005 
(202) 371-1212 

Counsel of Record for Defendants: 
William J. Guste, Jr., Attorney General 
Roy A. Mongrue, Assistant Attorney General 
L. Adrienne Dupont, Staff Attorney 
Louisiana Department of Justice 
Office of the Attorney General 
Post Office Box 44005, Capitol Station 
Baton Rouge, Louisiana 70804 
(504) 342-7013 

Ulysses Gene Thibodeaux 
1925 Enterprise Boulevard 
Lake Charles, Louisiana 70601 
(318) 439-1069 

Counsel of Record for Orleans Trial  
Judges Association: 
Fred J. Cassibry, Trial Attorney 
Ernest N. Morial 
Robert D. Hoffman, Jr. 
BROOK, MORIAL, CASSIBRY, FRAICHE & PIMA 
400 Poydras Street, Suite 2500 
New Orleans, Louisiana 70130 
(504) 566-0548 

Baton Rouge, Louisiana this day o 

MIChael H. Rubin 

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