Roemer v Chisom Brief of Respondents in Opposition

    No. 88-327

I n  th e

^itpnutu' (Emtrt of %  Inttpfi States
O ctober T eem , 1988

B uddy B oemer, et al.,

v.
Petitioners,

B on add Chisom:, et al.,
Respondents.

0ON PETITION FOE A WBIT OF CEETIOEAEI TO THE UNITED STATES 
COUET OF APPEALS FOE THE FIFTH CIECUIT

BRIEF OF RESPONDENTS IN OPPOSITION

J ulius L. Chambers 
Charles Stephen Ralston* 
J udith Reed 
Sherbilyn A. Ifill 

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

Pamela S. K arlan
University o f Virginia 

School o f Law 
Charlottesville, VA 22901 
(804) 924-7810

C. Lani Guinier
Univ. of Pennsylvania 

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

W illiam P. Quigley
Fulton Place, Suite 119 
901 Convention Ctr. Blvd. 
New Orleans, LA 70130 
(504) 524-0016

R oy J. Rodney, Jr.
643 Magazine Street 
New Orleans, LA 70130 
(504) 586-1200

R on W ilson
310 Richards Big.
837 Gravier Street 
New Orleans, LA 70112 
(504) 525-4361

Attorneys for Respondents
•Counsel of Record



Question Presented

In amending section 2 of the Voting 
Rights Act of 1965, 42 U.S.C. § 1973, did 
Congress intend to exempt from scrutiny 
racially discriminatory methods of 
electing state court judges?



11

Table of Contents

Page
Question Presented ................ i
Table of Contents .................. ii
Table of Authorities ............... iv
Statement of the Case .............. 2
Summary of Reasons for Denying
the Writ .......................... 8

Reasons for Denying the Writ ....... 10
I. This Court Has Already

Held that the Voting Rights 
Act Covers Judicial
Elections .................. 10

II. Both Courts of Appeals That
Have Considered the Question 
Have Concluded that Section 2 
Covers Judicial Elections .... 13

III. The Language, Legislative 
History, and Executive Con­
struction of the Voting Rights 
Act Show that It Was Intended
To Cover Judicial Elections ... 15
A. The Language of the Act ... 15
B. The Legislative History.... 17
C. The 1982 Amendments ...... 19



1 X 1

D. The Executive Construction
of Section 2 ............ 22

IV. The Distinctive Nature of 
Judicial Offices Does Not
Create a Certworthy Issue..... 2 3

V. In Any Event, the Essentially 
Interlocutory Nature of this 
Case Makes It Inappropriate
To Grant Certiorari  ..... 25

Conclusion 26



IV

Table of Authorities
Pages

Cases
Allen v. State Board of 

Elections, 393 U.S. 544
(1969)   17

Chisom v. Edwards, 839 F.2d
1056 (5th cir. 1988) ....  4,7,12,13,14

Chisom v. Edwards, 659 F. Supp.
183 (E.D. La. 1987), r e v d ,
839 F.2d 1056 (5th Cir. 1988) ..... 7

City of Mobile v. Bolden, 444 U.S.
55 (1980) ................... 18, 19

Clark v. Edwards, No. 86-435-A
(M.D. La. Aug. 15, 1988)   13

Haith v. Martin, 618 F. Supp. 410 
(E.D.N.C. 1985) aff'd. 477 U.S.
901 (1986)   14,18

Kirksey v. Allain, 635 F. Supp.
347 (S.D. Miss. 1986)   14

Mallory v. Eyrich, 839 F.2d 275
(6th Cir. 1987)   13,14

Martin v. Allain, 658 F. Supp.
1183 (S.D. Miss. 1987)   14

Martin v. Haith, 477 U.S. 901 
(1986) 8,9,10,11



V

Pages
Thornburg v. Gingles, 478 U.S.

30 (1986) ................ 4,6,19
United States v. Board of Commis­

sioners, 435 U.S. 110 (1978) .. 9,17,23
Wells v. Edwards, 409 U.S. 1095

(1973)   6
Williams v. State Board of

Elections, No. 88C-2377 (N.D.
111. Aug. 4, 1988)     14

Statutes
Ark. Code. Ann. § 14-14-502(a)(2)
(A) (i)       24

Civil Rights Act of 1964, 42
U.S.C. § 2000h   22

Mass. Const. Pt. 2, Ch. I,
§ I, Art. I ...................  24

Voting Rights Act of 1965 
as amended, § 2, 42 U.S.C.
§ 1973   passim

Voting Rights Act of 1965 
as amended, § 5, 42 U.S.C. 
§ 1973c ................ 9,10,12,13



V I

Paces
Voting Rights Act of 1965 

as amended, § 14(c)(1), 
42 U.S.C. § 19731(c)(1)

Other Materials
15,16

S . Ct. Rule 21.1(a) .......... . . .
H.R. Rep. No. 97-227 (1982) ...... 11,20
S. Rep. No. 97-417 (1982) .... 4,5,13,19,

20,21
S. Rep. No. 94-295 (1975) ....... 21
Southern Justice (L. Friedman

ed. 1965) ....................
U.S. Commission on Civil Rights,

The Voting Rights Act: Ten 
Years After (1975) ............ 21

U.S. Commission on Civil Rights,
The Voting Rights Act: Unful­
filled Goals (1981) ..........

U.S. Dept, of Commerce, Bureau of 
the Census, Statistical Abstract 
of the United States 1986 (106th 
ed. 1985) .....................

Voting Rights: Hearings Before 
Subcommittee No. 5 of the 
House Judiciary Comm, on H.R.
6400 and Other Proposals To 
Enforce the Fifteenth Amendment 
to the Constitution of the 
United States, 89th Cong., 1st 
Sess. (1965) .................. 17,18



No 88-327
IN THE

SUPREME COURT OF THE UNITED STATES 
OCTOBER TERM, 1988

BUDDY ROEMER, et al,.
Petitioners,

v.
RONALD CHISOM, et al..

Respondents.

On Petition For A Writ of Certiorari 
To The United States Court Of Appeals 

For The Fifth Circuit

BRIEF OF RESPONDENTS IN OPPOSITION

Respondents Ronald Chisom et al. 
oppose the petition of Governor Buddy 
Roemer et al. for a writ of certiorari to 
review the opinion and judgment entered 
by the United States Court of Appeals for 
the Fifth Circuit on February 29, 1988.



Statement of the Case

The Louisiana Supreme Court consists 
of seven justices who are chosen by popu­
lar election. Five of the seven justices 
are elected from geographically defined 
single-member districts. The other two 
justices are elected from the only multi­
member district— the First Supreme Court 
District. The First Supreme Court Dis­
trict contains Orleans, St. Bernard, Pla­
quemines, and Jefferson Parishes. Or­
leans Parish, which contains the city of 
New Orleans, is predominantly black in 
both total population and registered 
voters. The other three parishes are 
overwhelmingly white. Justices serve 
ten-year terms, and the election terms of 
the two justices from the First Supreme 
Court District are staggered. No black 
person has been elected to the Louisiana



-3-

Supreme Court, either from the First 
Supreme Court District or from any of the 
other five districts, in modern times.

Respondents Ronald Chisom, Marie 
Bookman, Walter Willard, Mark Morial, and 
Henry Dillon, III, are black registered 
voters in Orleans Parish, who represent a 
class of similarly situated persons. 
Respondent Louisiana Voter Registration/ 
Education Crusade is a nonprofit corpora­
tion active in voting rights issues in 
Orleans Parish.

Respondents filed a complaint chal­
lenging the method of electing Louisiana 
Supreme Court Justices from the First 
Supreme Court District. They alleged 
both that the present election scheme 
submerged Orleans Parish's predominantly 
black electorate in a majority-white, 
multimember district in violation of the 
"results test" of section 2 of the Voting



-4-

Rights Act of 1965 as amended, 42 U.S.C. 
§ 1973, and that it violated the Four­
teenth and Fifteenth Amendments to the 
Constitution of the United States because 
the purpose and effect of placing Orleans 
Parish in a multimember district was to 
dilute black voting strength.1

With regard to respondents' claim 
under section 2, the complaint alleged 
the following facts relevant to the 
"results” test:2 * * * * 7 a long history of offi­

1 Petitioners have not sought
review in this Court of the holding of
the Court of Appeals that respondents 
have stated a claim under the Fourteenth 
and Fifteenth Amendments. Chisom v. 
Edwards. 839 F.2d 1056, 1064-65 (5th Cir.
1988) (App. to Pet. for Cert. 24-25) . 
See this Court's Rule 21.1(a).

The contours of the "results" 
test are contained in the Senate Report 
that accompanied the 1982 amendments. S. 
Rep. No. 97-417 (1982) [hereafter "Senate 
Report"]. This Court has termed the 
Senate Report an "authoritative source"
for interpreting the results test. 
Thornburg v. Gingles, 478 U.S. 30, 43 n.
7 (1986).



-5-

cial racial discrimination within the 
First Supreme Court District; widespread 
racially polarized voting within the 
First Supreme Court District; the socio­
economically depressed status of black 
residents of the First Supreme Court 
District; the low percentage of black 
elected officials within the First Su­
preme Court District, including the 
absence of any black justices on the 
Louisiana Supreme Court; and the lack of 
any state policy justifying the use of a 
multimember district in the Orleans 
Parish area when all other Supreme Court 
Justices were elected from single-member 
districts.3 In addition, respondents

J The Senate Report contains a 
list of nine "[t]ypical factors" that may 
establish a violation of the results 
test. Senate Report at 28-29. The 
Report expressly states that "there is no 
requirement that any particular number of 
factors be proved, or that a majority of 
them point one way or the other." Id. at 
29. In their amended complaint, respon-



-6 —

alleged that it would be possible to 
create a single-member district consis­
ting of Orleans Parish that would be 
majority-black both in total population 
and in number of registered voters. See 
Thornburg v. Gingles, 478 U.S. 30, 50
(1978) .* 4

dents made allegations concerning the 
first, second, third, fifth, seventh, and 
ninth factors.

4 Under this Court's decision in 
Wells v. Edwards, 409 U.S. 1095 (1973), 
summarily aff'q 347 F. Supp. 453 (M.D. 
La. 1972), the principle of one-person, 
one-vote does not apply to the districts 
used to elect members of the Louisiana 
Supreme Court. The 1980 population of 
the First Supreme Court District is 
1,102,253; the population of the largest 
single-member district is approximately 
861,000, while the population of the 
smallest is approximately 411,000. See 
App. to Pet. for Cert. 47.

Respondents' complaint alleged that 
it would be possible to divide the pres­
ent First Supreme Court District into an 
overwhelmingly white district consisting 
of the three suburban parishes having a 
total population of 544,738, and a major­
ity-black district consisting of Orleans 
Parish having a population of 557,515. 
The Orleans Parish-based district would 
thus contain 50.58 percent of the popula­



-7-

In an opinion and order dated May 1, 
1987, and subsequently amended on July 
10, 1987, the United States District
Court for the Eastern District of Louisi­
ana (Charles Schwartz, Jr., J.) granted 
petitioners' motion to dismiss respon­
dents' section 2 claims on the ground 
that section 2 does not cover judicial 
elections. Chisom v. Edwards. 659 F.
Supp. 183 (E.D. La. 1987) (App. to Pet. 
for Cert. 28).

On February 29, 1988, a unanimous
panel of the Court of Appeals for the 
Fifth Circuit (John R. Brown, Sam D. 
Johnson, and Patrick E. Higginbotham, 
JJ.) reversed the judgment of the dis­
trict court and held that section 2 
applies to judicial elections. Chisom v. 
Edwards. 831 F.2d 1056 (5th Cir. 1988)

tion of the current First Supreme Court 
District.



-8-

(App. to Pet, for Cert. 4). A subsequent 
petition for rehearing and suggestion for 
rehearing en banc was unanimously denied.

Summary of Reasons for 
Denying the Writ

The question whether section 2 of 
the Voting Rights Act applies to judicial 
elections does not warrant this Court's 
review. This Court has unanimously held 
that a complementary provision of the Act 
covers judicial elections. Martin v. 
Haith. 477 U.S. 901 (1986). The decision 
of the Court of Appeals in this case is 
consistent with this Court's holding in 
Martin; with the holding of the only 
other court of appeals to address the 
question whether section 2 covers judi­
cial elections, Mallory v. Evrich. 839 
F. 2d 275 (6th Cir. 1987); with the lan­
guage and legislative history of the 
Voting Rights Act; and with the Attorney



-9

General's interpretation of the Act, to 
which this Court has consistently given 
great deference, see, e.g,, United States 
v. Board of Commissioners, 435 U.S. 110, 
131 (1978) .

Reasons for Denying the Writ
I.

THIS COURT HAS ALREADY 
HELD THAT THE VOTING RIGHTS ACT COVERS JUDICIAL ELECTIONS

Petitioners refer to a number of 
cases involving challenges under the 
Voting Rights Act to judicial elections. 
Pet. for Cert. 6-9. They fail, however, 
to mention the most significant decision: 
this Court's summary, unanimous holding, 
in Martin v. Haith. 477 U.S. 901 (1986), 
that a complementary provision of the 
Voting Rights Act— section 5, 42 U.S.C. §



-10-

1973c— covers judicial elections.5
Section 5, which requires certain 

jurisdictions (including Louisiana) to 
obtain federal approval prior to imple­
menting any changes in their method of 
electing public officials, and section 2, 
which contains a nationwide ban on the 
use of election practices which result in 
the dilution of minority voting strength, 
were intended to be interpreted in tan­
dem. The House Report accompanying the 
1982 amendment of section 2 and extension 
of section 5 expressly stated:

Under the Voting Rights Act, 
whether a discriminatory prac­
tice or procedure is of recent

5 That holding effectively ans­
wers petitioners' ostensibly rhetorical 
question, "If a state, such as Louisiana, 
chooses to change its judicial selection 
process from an electoral system to one 
of appointment and/or merit, must it 
preclear such a change when most of the 
other forty-two states that elect judges 
need not preclear such a change?" Pet. 
for Cert. 5. Martin's precise holding is 
that the answer to that question is "Yes."



-11-

origin affects on the mechanism 
that triggers relief, i.e., 
litigation [under section 2] or 
preclearance [under section 5].
The lawfulness of such a prac­
tice 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) [here­
after "House Report"] (emphasis added); 
see also Senate Report at 5-6.

If the lawfulness of an electoral 
practice does not vary depending on its 
date of adoption, then this Court's 
holding in Martin— that the adoption of a 
particular system for electing judges may­
be forbidden when that system has either 
the purpose or the effect of diluting 
black voting strength— necessarily re­
quires that the continued use of a par­
ticular system for electing judges must 
also be subject to scrutiny under section 
2. Under Martin. it is clear beyond 
dispute that if Louisiana now used a
different system for electing judges, it



-12-

could be forbidden from creating a multi­
member district containing Orleans Parish 
and three suburban, majority-white par­
ishes if that plan had the effect of 
diluting black voting strength.6 The 
import of petitioners' argument therefore 
is that Louisiana's longstanding use of 
such a system should somehow be immune 
from attack under the Voting Rights Act. 
The Court of Appeals properly held that 
such a result would be "totally inconsis­
tent with the broad remedial purpose of 
the Act," 839 F.2d at 1064 (App. to Pet.

Under section 5, a state cannot 
implement a change in its methods of 
electing public officials if the change 
would have either the purpose or the 
effect of diluting minority voting 
strength. 42 U.S.C. § 1973c. In section 
5 cases, the burden of proof lies on the 
submitting jurisdiction, whereas in 
section 2 cases, the plaintiffs bear the 
burden of proof. Thus, it is entirely 
possible in close cases that a state will 
be denied preclearance of a change which, 
if it had been the existing practice, 
private plaintiffs would be unable to 
attack successfully.



-13

for Cert. 23), which was to "create a set 
of mechanisms for dealing with continued 
voting discrimination, not step by step, 
but comprehensively and finally," Senate 
Report at 5.

II.
BOTH COURTS OF APPEALS 
THAT HAVE CONSIDERED THE QUESTION HAVE CONCLUDED 
THAT SECTION 2 APPLIES TO JUDICIAL ELECTIONS

Petitioners seek to show the impor­
tance of this Court's granting certiorari 
by pointing out that states within eleven 
of the Circuits elect judges. Pet. for 
Cert. 10-11. That fact, however, pro­
vides no basis for granting certiorari 
here, in light of the now unanimous 
consensus among the lower courts that 
section 2 applies to judicial elections. 
See Chisom v. Edwards. 839 F.2d 1056 (5th 
Cir. 1988); Mallory v. Eyrich. 839 F.2d 
275 (6th Cir. 1987) ; Clark v. Edwards.



-14-

No. 86 —435—A (M.D. La. Aug. 15, 1988) ; 
Williams v. State Board of Elections, No. 
88C-2377 (N.D. 111. Aug. 4, 1988); Martin 
v. Mlain, 658 F. Supp. 1183 (S.D. Miss. 
1987); see also Kirksev v. Allain. 635 F. 
Supp. 347 (S.D. Miss. 1986) (three-judge 
court) (section 5 applies to judicial 
elections); Haith v. Martin, 618 F. Supp. 
410 (E.D.N.C. 1985) (three-judge court) 
(same), aff 'd. 477 U.S. 901 (1986). In 
fact, the only two lower court judges to 
suggest that section 2 does not apply 
were both unanimously reversed by their 
respective courts of appeals in Chisom 
and Mallory. Thus, there is no conflict 
or confusion among the circuits.



-15-

THE LANGUAGE, LEGISLATIVE HISTORY, AND EXECUTIVE 
CONSTRUCTION OF THE VOTING RIGHTS ACT SHOW THAT IT 
WAS INTENDED TO COVER 
JUDICIAL ELECTIONS

III.

A. The Language of the Act
By its terms, section 2 covers all 

elections. Section 2(a) contains an 
absolute prohibition on racial dis­
crimination in voting:

No voting qualification or 
prerequisite to voting or 
standard, practice, or proce­
dure shall be imposed or ap­
plied by any State . . .  in a 
manner which results in a 
denial or an abridgement of the 
right of any citizen of the 
United States to vote on ac­
count of race or color . . . .

42 U.S.C. § 1973(a) (emphasis added).
Section 14(c)(1) of the Act, which de­
fines "voting" for purposes of the Act, 
convincingly shows that Congress intended 
for section 2 to reach all elections:

The terms "vote" or "voting"



— 16 —

shall include all action neces­
sary to make a vote effective 
in any primary, special, or 
general election, including, 
but not limited to, 
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 voters 
are received in an election.

42 U.S.C. § 19731(c)(1) (emphasis added). 
Thus, neither the substantive nor the 
definitional sections of the Act provides 
any exclusion from the Act's coverage for 
particular types of elections. Aspir­
ants for elective judicial positions are 
undeniably "candidates for public . .
office" and the procedures by which they 
attain those offices are undeniably 
"elections." Thus, section 2 by its 
terms outlaws schemes for electing judges 
that result in the denial or abridgment 
of equal voting strength for black citi­
zens .



-17-

B* The Legislative History
This Court has frequently noted 

Congress' "intention to give the Act its 
broadest possible scope." Allen v. State 
Board of Elections. 393 U.S. 544, 566-57
(1969). The Act originated as H.R. 6400, 
a bill drafted by the Johnson Administra­
tion. This Court has recognized, "in 
light of the extensive role" that Attor­
ney General Nicholas Katzenbach "played 
in drafting the statute and explaining 
its operation to Congress," that great 
weight should be afforded his testimony. 
United States v. Board of Commissioners. 
435 U.S. at 131 & n. 20. Attorney Gene­
ral Katzenbach made clear, in response to 
questions from committee members, that 
"[e]very election in which registered 
electors are permitted to vote would be 
covered" by the Act. Voting Rights:



18-

Hearings Before Subcommittee No. 5 of the
House Judiciary Comm, on H.R. 6400 and
Other Proposals To Enforce the Fifteenth
Amendment to the Constitution of the
United States. 89th Cong. , 1st Sess. 21
(1965). See also id. at 67, 121 (dis­
cussing how Act will reach all elec­
tions) . As the three-judge court whose 
opinion this Court summarily affirmed in 
Martin explained, "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).

Moreover, as this Court explained in 
City of Mobile v. Bolden. 444 U.S. 55, 61 
(1980) (plurality opinion), section 2 as 
enacted in 1965 "simply restated the 
prohibitions already contained in the 
Fifteenth Amendment . . . ." It defies 
belief to suggest that the Fifteenth



-19-

Amendment does not cover judicial elec­
tions :̂  if that were so, then States 
would be free explicitly to restrict the 
franchise in judicial elections solely to 
white voters, and that cannot be the law. 
Thus, at its enactment, section 2 must 
also have covered judicial elections.8

C. The 1982 Amendments
In 1982, Congress amended section 2 

to overturn the plurality holding in 
Bolden that section 2 required a showing 
of discriminatory purpose. Thornburg v. 
Gingles, 478 U.S. at 35; Senate Report at

' Indeed, petitioners do not 
press that point here. See supra note 1.

Indeed, a major impetus for the 
passage of the Civil Rights Act of 1954 
and the Voting Rights Act of 1965 was the 
inability or unwillingness of elected 
state court judges in the South to pro­
tect the constitutional rights of black 
citizens. For an illuminating account of 
the treatment of black citizens by the 
elected state judiciary during the period 
immediately preceding the passage of the 
two Acts, see generally Southern Justice 
(L. Friedman ed. 1965).



-20-

2. Petitioners' entire argument ul­
timately boils down to a claim that, by 
using the phrase "representatives of 
their choice" in explicating the results 
test, Congress intended to exclude judi­
cial elections from section 2.

The legislative history simply does 
not support petitioners' claim. To the 
contrary, both supporters and opponents 
of amended section 2 assumed it covered 
judicial elections. Thus, the Senate and 
House Reports used the words "representa­
tives," "candidate," and "elected offi­
cial" interchangeably, see , e.g., Senate 
Report at 16, 28, 29, 30, 31 & 67; House 
Report at 4, 18, and relied, in discuss­
ing progress under the Act, on figures 
regarding the number of black elected 
officials that explicitly included elec­
ted judges, see, e.g.. House Report at 7- 
9; see also S. Rep. No. 94-295, p. 14



-21-

(1975).9 Cf. Senate Report at 151 (mino­
rity views of Sen. Hatch) (section 2 
reaches "all governmental units, includ­
ing . . . judicial districts . . .  as
well as state legislatures") . In light 
of these references and Congress' clear 
purpose— to expand the protection af­
forded black voters by section 2— it 
makes no sense to assume that Congress 
sub silentio removed judicial elections 
from scrutiny under section 2.

y The U.S. Commission on Civil 
Rights and the Bureau of the Census have 
similarly included minority jurists 
within their descriptions of minority 
elected officials. See, e.q.. U.S. 
Commission on Civil Rights, The Voting 
Rights Act: Ten Years After 377 (1975) ;
U.S. Commission on Civil Rights, The 
Voting Rights Act: Unfulfilled Goals 27- 
28 (1981) (blacks were rarely elected to
"law enforcement positions (including 
sheriffs and judges") (emphasis added); 
U.S. Dept, of Commerce, Bureau of the 
Census, Statistical Abstract of the 
United States 1986, at 252 (106th ed.
1985) .



-22-

D. The Executive Construction of Section 2
As petitioners note, the Attorney- 

General has certified this to be a case 
of general public importance. Pet. for 
Cert. 5. What petitioners fail to men­
tion is that he did so in the context of 
a motion by the United States to inter- 
vene as a plaintiff in this lawsuit. See 
42 U.S.C. § 2000h-2 (conferring right of 
intervention on Attorney General when he 
certifies that an action seeking relief 
under the Fourteenth Amendment is of 
general public importance).10 Paragraph 
13 of the United States' complaint in 
intervention alleges, as did respondents' 
complaint, that the current method of 
electing the two justices from the First 
Supreme Court District violates the

xu The Solicitor General has also 
filed a Brief in Opposition to this 
petition for certiorari.



-23-

results test of section 2. Thus, the 
Attorney General, to whose construction 
of the Act this Court has traditionally 
paid substantial deference, see, e. a. . 
United States v . Board of Commissioners, 
435 U.S. at 131, has consistently taken 
the position that section 2 covers all 
elections and has expressly interpreted 
section 2 to cover judicial elections.

IV.
THE DISTINCTIVE NATURE OF JUDICIAL OFFICES DOES NOT CREATE A CERTWORTHY ISSUE
The bulk of petitioners' argument 

revolves around the special functions 
performed by judicial officers to explain 
why such officials should not be viewed 
as representatives. That argument, 
however, misses the point. Louisiana has 
decided to fill its bench by allowing the 
State's voters to choose judges through 
popular elections. Thus, while judges



-24-

may serve the public in a very different 
way than city council members, or state 
legislators,11 the fact remains that 
Louisiana has concluded that judges are 
not so different from other public offi­
cials that elections are an inappropriate 
selection device. Having allowed all 
qualified voters to participate directly 
in the judicial selection process, the 
State cannot use a process that values 
the votes of white citizens and black 
citizens differently, by diluting the 
opportunity of black citizens to elect 
their preferred candidates.

XJ- In any event, state nomencla­
ture cannot be allowed to dictate the 
scope of section 2's coverage. For 
example, under Arkansas law, the chief 
executive official of a county is the 
"county judge," Ark. Code. Ann. § 14-14- 
502 (a) (2) (A) (i) , and in Massachusetts, 
the official name of the state legisla­
ture is the "General Court," Mass. Const. 
Pt. 2, Ch. I, § I, Art. I.



-25-

IN ANY EVENT, THE ESSEN­
TIALLY INTERLOCUTORY NATURE OF THIS CASE MAKES 
IT INAPPROPRIATE TO GRANT CERTIORARI

The Court of Appeals did not decide 
that Louisiana's present scheme for 
electing Supreme Court Justices from the 
First Supreme Court District violates 
either the Constitution or section 2. 
Nor did it decide that Louisiana must 
adopt single-member districts. All it 
decided was that respondents had stated a 
claim, which they should be given the 
opportunity to prove at trial.12 More­
over, because petitioners have not sought 
certiorari on the question whether the 
Constitution covers claims of racial vote 
dilution in judicial elections, this case 
will have to be tried regardless of

V.

Judge Schwartz has set the 
trial in this case for December 14, 1988.



- 2 6 -

whether this Court grants certiorari and 
reverses on the question presented.

Conclusion
For the reasons stated, this Court 

should deny the petition for writ of 
certiorari.

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

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

C. LANI GUINIER 
Univ. of Pennsylvania 
Law School
3400 Chestnut Street 
Philadelphia, PA 19104 
(215) 898-7032



-27-

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

ROY J. RODNEY, JR.
643 Magazine Street 
New Orleans, LA 70130 
(504) 586-1200

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

Attorneys for Respondents
*Counsel of Record



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