Roemer v Chisom Writ of Certiorari

    No.

In The
Supreme Court of the United States

October Term, 1988
-o-

BUDDY ROEMER, in his capacity as Governor of the State of 
Louisiana; FOX McKEITHEN, in his capacity as Secretary of 
State of Louisiana; and JERRY M. FOWLER, in his capacity 
as Commissioner of Elections of the State of Louisiana,

versus
Petitioners,

RONALD CHISOM, MARIE BOOKMAN, WALTER WILLARD, 
MARK MORIAL, LOUISIANA VOTER REGISTRATION/EDUCA- 
TION CRUSADE, and HENRY A. DILLON, III,

Respondents.
-------- ----- o---------- -—

PETITION FOR A WRIT OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT
------------- -— o----- -— ------

ROBERT G. PUGH 
Counsel of Record 

ROBERT G. PUGH, JR.
330 Marshall Street, Suite 1200 

Shreveport, LA 71101 
(318) 227-2270

M. TRUMAN W OODW ARD, JR. A. R. CHRiSTOVICH 
909 Poydras Street 2300 Pan American Life Center
Suite 2300 601 Poydras Street
New Orleans, LA 70130 New Orleans, LA 70130

BLAKE G. ARATA MOISE W. DENNERY
201 St. Charles Avenue 601 Poydras Street
New Orleans, LA 70130 New Orleans, LA 70130

SPECIAL ASSISTANT ATTORNEYS GENERAL
WILLIAM J. GUSTE, JR.
_ ATTORNEY GENERAL 

Louisiana Department of Justice 
234 Loyola Avenue, 7th Floor 

New Orleans, Louisiana 70112 
(504) 568-5575

August 25th, 1988

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 
or call collect (402) 342-2831



1

QUESTION PRESENTED

1. Did Congress intend the word “ representatives” 
as used in the Voting Rights Act of 1965, § 2(b) as amend­
ed, 42 TT.S.C. § 1973, to include judges who are selected by 
a state judicial electoral process!



11

LIST OF PARTIES

The parties to the proceedings below were:

The Petitioners:
EDWIN W. EDWARDS, in his 
capacity as Governor of the
State of Louisiana; snb 110m BUDDY ROEMER
JAMES H. BROWN, in his 
capacity as Secretary of
the State of Louisiana; sub nom FOX McKEITHEN
JERRY M. FOWLER, in his 
capacity as Commissioner 
of Elections of the State 
of Louisiana
The Respondents:
RONALD CHISOM
MARIE BOOKMAN
WALTER WILLARD
MARC MORIAL
LOUISIANA VOTER REGISTRATION/ 
EDUCATIONAL CRUSADE

[a non-profit corporation comprised of Orleans Par­
ish black registered voters active in voting rights is­
sues. On information and belief, petitioners assert 
that this corporation has no parent, subsidiaries or 
affiliates.]

HENRY A. DILLON, III



Ill

QUESTION PRESENTED ........................................  i
LIST OF PARTIES ............... ........... ........................... ii
TABLE OF CONTENTS..................... .................. ......  iii
TABLE OF AUTHORITIES ..................... ............ ............ ............ ............ ............  iv
OPINIONS BELOW ........ .............................................  1
JURISDICTION ................................................. ..... ....... , 2
STATUTES INVOLVED .. ............... ......................... 3
STATEMENT OF THE CASE ................................... 3
REASONS FOR GRANTING THE W R IT ................  4

I The United States Court Of Appeals For The 
Fifth Circuit Has Decided An Important 
Question Of Federal Law Which Has Not 
Been, But Should Be, Settled By This Court 4

II The Term “ Representatives”  Is Not A Syno­
nym For “Elected Judicial Officials” .. .......  12

III Louisiana’s Time Honored Tradition Of Elect­
ing Its Judiciary Has Passed Justice Depart­
ment Scrutiny ..................   17

IV This Court’s Decisions Make Clear That
Judges Are Not, And Should Not Be, Rep­
resentatives .......................................................  18

V The Fundamental Difference Between Rep­
resentatives And Members Of The Judiciary 
Is Deeply Rooted In This Country’s History 21

CONCLUSION .. ............................................................  26
APPENDIX ..................................... ........... .............App. 1

TABLE OP CONTENTS
Page



IV

TABLE OF AUTHORITIES

Cases :

Avery v. Midland County, 390 U.S. 474 (1968) ............  19
Tyrone Brooks, et al. v. Glynn County, Georgia 

Board of Elections, et al., Civil Action No. CV 
288-146 (S.D.Ga. 1988) ........ .......................................  9

California v. Carney, 471 U.S. 386 (1985) ........ .... ......  15
Cannon v. University of Chicago, 441 U.S. 677 (1979) 20
Chandler v. Judicial Council, 398 U.S. 74 (1970) ......... 26
Chisom v. Edwards, 839 F.2d 1056 (5th Cir. 1988) ...passim
Chisom v. Edwards, 659 F.Snpp. 183 (E.D.La.

1987) .......................... ...............................................passim
Chisom v. Edwards, Civil Action No. 86-4075,—

F.2d — (5th Cir. 1988) .................................... ........... 5
Clark v. Edwards, Civil Action No. 86-435 (A)

(M.D.La.) ........ .................. ......... ..............................6, 7, 8
Commodity Futures Trading Commission v.

Schor, — U.S. —, 106 S.Ct. 3245, 92 L.Ed.2d
675 (1986) .....................................   15

Connor v. Finch, 431 U.S. 407 (1977) ...........................  18
Consumer Products Safety Comm’n v. GTE 

Sylvania, 447 U.S. 102 (1980) .................................. 12
Davis v. Bandemer, 478 U.S. 109 (1986) ................. ...... 18
Dennis v. United States, 341 U.S. 494 (1951)................  19
Dickerson v. New Banner Institute, Inc., 460 U.S.

103 (1983) ....................................    13
Escondido Mut. Water Co. v. La Jolla Indians,

466 U.S. 765 (1984) .....................................
Griswold v. Connecticut, 381 U.S. 479 (1965)
Katz v. United States, 389 U.S. 347 (1967) ....

Page

13
21
15



V

League of United Latin American Citizens et al. 
v. William Clements, et al., Civil Action No. 
MO-88-CA-154 (W.D.Tex. 1988) ...............................  9

Mallory v. Eyrich, 666 F.Supp. 1060 (S.D.OMo 1987) ... 8
Mallory v. Eyrich, 839 F.2d 275 (6th Cir. 1987) ........... 8
Martin v. Attain, 658 F.Supp. 1183 (S.D.Miss. 1987)...  6, 7
Members of the City Council of the City of Los 

Angeles v. Taxpayers for Vincent, 466 U.S. 789
(1984) ........ _.............................. .... ........-......... ........... 16

Milwaukee v. Illinois, 451 U.S. 304 (1981)...................... 20
Mitchell v. W. T. Grant, 416 U.S. 600 (1974) ................  15
Rita Rangel, et al. v. Jim Mattox, et al., Civil 

Action No. B 88-053 (S.D.Tex, Brownsville 
District 1988) ..................... ......................................... 9

Reynolds v. Sims, 377 U.S. 533 (1964) ................. .......19, 26
Rivera v. Minnich, — U.S. —, 107 S.Ct. 3001,

97 L.Ed.2d 472 (1987) ................. ...... ....................... 15
Schweiker v. Wilson, 450 U.S. 221 (1981) .................... 20
Southern Christian Leadership Conference of 

Alabama, et ad. v. State of Alabama, et al., Civil 
Action No. 88D462-N (M.D.Ala. 1988) ....................  8

Tennessee Valley Authority v. Hill, 437 U.S. 153
(1978)-...........   26

Thornburg v. Gingles, 478 U.S. 30 (1986)........ .......... ... 8
Whitcomb v. Chavis, 403 U.S. 124 (1971) ...................... 19
White v. Regester, 412 U.S. 755 (1973) ........................ 19
Paul L. Williams, et al. v. State Board of Elections, 

et al., Civil Action No. 88C-2377 (N.D.I11. 1988) ....... 9

TABLE OF AUTHORITIES—Continued
Page



C on stitu tion al , S tatutory  and R egulatory 
P rovision s:*

U nited  S tates S t a t u t e s :

28 U.S.C. § 1254(1) .................................................. 2
28 U.S.C. § 1331.................................. ..................... 2,3
28 U.S.C. § 1342 ................. ....................................  3
28 U.S.C. § 1343 ................................................... .... 2
28 U.S.C. § 2201 ................... ....... .................. .....-... 2, 3
28 U.S.C. § 2202 .......■................................................  2, 3
42 U.S.C. § 1973 ... ................................. passim, *App. 1
42 U.S.C. § 1983 ........................................ ......  passim

L ouisiana C o nstitution  :

1852 Constitution, Article 64.. ........ ......................  17
1879 Constitution, Article 82 ......... ............. ...........  17
1898 Constitution, Article 87 ...................................  17
1913 Constitution, Article 87 ................. ................. 17
1921 Constitution, Article 7, § 9 ........ ......... ............ 17
1974 Constitution, Article 5, § 3 ....................3, ®App, 2
1974 Constitution, Article 5, § 4 ..............3,17, ®App. 2
1974 Constitution, Article 8, § 10B .................... 17
1974 Constitution, Article 14, § 16 ......... ...............  17

L ouisiana  R evised S tatutes :

R.S. 13:101 ................................................ 3,17, »App. 3
R.S. 18:511B .............................. ...... ................... ..... ............  6

* Where full text appears in the Appendix, the page 
reference is preceded by the symbol ® .

vi
TABLE OF AUTHORITIES—Continued

Page



V ll

TABLE OF AUTHORITIES—Continued

R ules :
Page

Fed.R.Civ.P. 12(b) 6 .................................... ...........  2,4

B ooks :

A. Bickel, The Supreme Court and the Idea of 
Progress (1978 Yale University Press edition).......24,25

J. Ely, Democracy and Distrust (1980 Harvard
University Press hardbound edition) ............... ........ 24

L. Friedman, A History of American Law (Simon 
& Schuster 1973 paperback edition) ..................... 24

Gr. White, The American Judicial Tradition (1978 
Oxford University Press paperback edition) 21, 22,23, 24

National Center for State Courts, State Court 
Organization 1987 July 1988 ....................................... 11

N ewspapeks :

New Orleans Times-Picayune, August 21, 1972 18



No.
o

In The
Supreme Court of the United States

October Term, 1988
---------------o----------------

BUDDY ROEMER, in his capacity as Governor of the State of 
Louisiana; FOX McKEITHEN, in his capacity as Secretary of 
State of Louisiana; and JERRY M. FOWLER, in his capacity 
as Commissioner of Elections of the State of Louisiana,

Petitioners,
versus

RONALD CHISOM, MARIE BOOKMAN, WALTER WILLARD, 
MARK MORIAL, LOUISIANA VOTER REGISTRATION/EDUCA- 
TION CRUSADE, and HENRY A. DILLON, III,

Respondents.
-o-

PETITION FOR A WRIT OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT
■---------------- o------------------

The petitioners, BUDDY ROEMER, in his capacity as 
Governor of the State of Louisiana; FOX McKEITHEN, 
in his capacity as Secretary of State of Louisiana; and 
JERRY M. FOWLER, in his capacity as Commissioner of 
Elections of the State of Louisiana, respectfully pray that 
a writ of certiorari issue to review the judgment and opin­
ion of the United States Court of Appeals for the Fifth 
Circuit, entered in the above-entitled proceeding on Feb­
ruary 29, 1988. A timely application for rehearing was 
denied on May 27, 1988.

--------------- o---------------
OPINIONS BELOW

The opinion of the United States Court of Appeals 
for the Fifth Circuit is reported at 839 F.2d 1056, and is 
reprinted in the Appendix hereto, App. 4, infra.

1



2

Denial of the Petition for Rehearing by the Fifth Cir­
cuit is unreported. It is reprinted in the Appendix hereto, 
App. 27, infra.

The opinion of the District Court for the Eastern 
District of Louisiana is reported at 659 F.Supp. 183, and 
is reprinted in the Appendix hereto, App. 28, infra.

--------------- o--------------- -

JURISDICTION

Invoking federal jurisdiction under 28 U.S.C. §'§ 1331 
and 1343 and 42 U.S.C. ’§ 1973C, respondents brought this 
suit in the Eastern District of Louisiana on May 1, 1986. 
The respondents sought declaratory and injunctive relief 
under 42 U.S.C. §'§ 1973 and 1983, as well as 28 U.S.C. 
§'§ 2201 and 2202. The complaint was amended on Septem­
ber 30th, 1986.

A motion by petitioners to dismiss for failure to state 
a claim upon which relief can be granted pursuant to Rule 
12(b)(6) of the Federal Rules of Civil Procedure was 
filed on March 18, 1987. The district court granted the 
motion to dismiss on May 1, 1987, amended July 10, 1987, 
659 F.Supp. 183 (E.D.La 1987). App. 28, infra.

On May 7, 1987, respondents appealed this dismissal 
to the United States Court of Appeals for the Fifth Cir­
cuit. On February 9, 1988 the dismissal decision of the 
district court was reversed and the case was remanded, 
839 F.2d 1056 (5th Cir. 1988). App. 4, infra. Rehearing 
was denied May 27,1988. App. 27, infra.

The jurisdiction of this Court to review the judgment 
of the Fifth Circuit is invoked under 28 U.S.C. § 1254(1).

o



3

STATUTES INVOLVED

The following constitutional and statutory provisions 
involved have been printed in the Appendix.
United States Statutes:

Voting Rights Act 
42 U.S.C. § 1973

Louisiana Constitution:
Judicial Branch 
Article 5 
Sections 3 and 4

Louisiana Revised Statutes:
Supreme Court District; justices 
R.S. 13:101

--------------- o---------------

STATEMENT OF THE CASE

Respondents brought this suit in the United States 
District Court for the Eastern District of Louisiana on be­
half of all black registered voters in Orleans Parish, ap­
proximately 135,000 people. The suit challenged the at- 
large election of two justices to the Louisiana Supreme 
Court from the parishes of Orleans, St. Bernard, Plaque­
mines and Jefferson as being in violation of the 1965 Vot­
ing Rights Act, as amended, because of alleged dilution of 
the voting strength of the respondents. The action was 
for declaratory and injunctive relief, 42 U.S.C. §§ 1973 
and 1983. Jurisdiction in the district court was asserted 
under 28 U.S.C. §§ 1331 and 1343 as well as 42 U.S.C. 
§ 1973C. Respondents also sought relief under 28 U.S.C. 
■§§ 2201 and 2202. Respondents sought the division of the 
First Supreme Court District into two districts, one to be 
comprised of the parishes of Jefferson, Plaquemines and 
St. Bernard and the other of Orleans Parish where blacks 
constituted 51.6% of the registered voters.



4

Petitioners filed a Fed.R.Civ.P. 12(b) (6) motion to dis­
miss for the failure of the respondents to state a claim 
upon which relief could be granted. The district court 
agreed with petitioners’ contention that it was not the in­
tention of Congress to apply the word “ representatives”  
in Section 2 of the Voting Rights Act, as amended, to em­
brace members of the judiciary. The district court drew a 
distinction between the impartial functions performed by 
the judiciary without a constituency and. the functions per­
formed by the representatives who are not expected to be 
impartial but rather reflective of the needs and wishes of 
their constituency. The district court opinion is reported 
at 659 F.Supp. 183 (EJD.La 1987), and printed in the Ap­
pendix. App. 28, infra.

The respondents appealed to the United States Court 
of Appeals for the Fifth Circuit, where the judgment of 
the district court was reversed and the case was remanded 
because the court concluded that section 2 does apply to 
the election of state court judges. Ghisom v. Edwards, 
839 F.2d 1056 (5th Cir. 1988). App. 4, infra.

A timely filed application for rehearing was denied 
on May 27,1988. App. 27, infra.

—------------ o---------------

REASONS FOR GRANTING THE WRIT 
I

The United States Court of Appeals 
for the Fifth Circuit

Has Decided An Important Question Of Federal 
Law Which Has Not Been, But 

Should Be, Settled By This Court
This case is one of national importance, as the judic­

iary selection statutes of forty-two states are affected by 
the decision below. Of these, thirty-six states employ a 
direct election process, and six states employ a retention



5

election process. Only eight states employ either a guber­
natorial or legislative selection process. Further, the At­
torney General of the United States has certified this to 
be a case of general public importance.1

There are several pending- cases concerning which 
guidance by this Court is needed. Subsumed within the 
question presented is, if Section 2 of the Voting Eights 
Act is applicable, must the results test be applied in de­
termining the existence of a violation ? Is the results test 
and corresponding relief compatible with the inappropri­
ateness of applying the one man one vote test to the judic­
iary? If there is a violation does it permeate the entire 
judicial system? If a state, such as Louisiana, chooses to 
change its judicial selection process from an electoral sys­
tem 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 a change ? 1

1 On remand the district court granted a preliminary injunc­
tion to prevent a scheduled election relating to a Louisiana Su­
preme Court First District position, the term for which expires 
on December 31,1988. In his July 7, 1988 Opinion regarding the 
preliminary injunction, Judge Schwartz stated, in pertinent part:

While this Court adheres to its original opinion, the Fifth 
Circuit has spoken; this Court is bound by the Fifth Circuit's 
holding, unless and until that holding is either expressly 
or tacitly overruled judicially by either the Fifth Circuit or 
the Supreme Court or legislatively by Congress.

Opinion, pages 16-17, July 7, 1988. Ronald Chisom, et a/, v. Ed­
win Edwards, et at, Civil Action No. 86-4075, United States Dis­
trict Court for the Eastern District of Louisiana.

Upon the district court's refusal to grant a stay, an expedited 
appeal was perfected to the court of appeals where a stay of the 
preliminary injunction was granted to permit qualification to 
occur. Thereafter, the Fifth Circuit vacated the injunction. After 
this ruling the Attorney General of the United States moved to 
intervene in this case, asserting and certifying it to be one of 
genera! public importance. The motion was granted. The Fifth 
Circuit Court of Appeals issued its reasons for vacating the in­
junction on August 19, 1988. These reasons are reproduced in 
the appendix at App. 44.



6

Illustrative as to the need for instructive guidance 
from this Court are two district court cases within the 
Fifth Circuit reaching contrary results. In the case of 
Martin v. Attain, 658 F.Supp. 1183 (S.D.Miss. 1987), the 
district judge has ruled that there need be changes only 
in those districts where a violation is found, and that the 
district court will fashion the remedy. In contrast, in the 
case of Clark v. Edwards, Civil Action No. 86-435~(A) 
(M.D.La.), which affects all of Louisiana’s district and 
intermediate appellate courts, the district judge has en­
joined all judicial elections to these courts, even in dis­
tricts where the plaintiffs presented no evidence whatso­
ever, and has enjoined the issuance of commissions to 
those who have been elected without opposition.2 This 
district judge has asserted that he will turn the matter 
over first to the Legislature to fashion a remedy, and if it 
does not do so, he will fashion the remedy. This same 
judge has decided that a violation as proved in any judic­
ial district will require that the entire judicial system be 
changed, despite the absence of violations in many other 
districts.3 The Clark judge’s position appears to be

2 According to Louisiana law, an unopposed candidate is auto­
matically elected and is to be granted a commission. The ap­
plicable statute states:

ELECTION OF UNOPPOSED CANDIDATES FOR PUBLIC 
OFFICE

If, after the close of the qualifying period for candi­
dates in a primary election, the number of candidates for 
a public office does not exceed the number of persons to 
be elected to the office, the candidates for that office, or 
those remaining after the withdrawal of one or more candi­
dates, are declared elected by the people, and their names 
shall not appear on the ballot in either the primary or the 
genera! election.

LA R.S. 18:511B.
Because of my conviction that there are legally signifi­

cant differences between judicial elections and legislative
(Continued on following page)



7

(Continued from previous page)
elections, it is my view that the remedy for Section 2 vio­
lations which are produced by the judicial election system, 
is to change the system, not to create sub-districts within 
district courts. Consequently, I conceive it to be my duty, 
having found violations, to enjoin all district, family court 
and court of appeal elections until the governor of Louisiana 
and the Louisiana legislature have had an opportunity to 
make changes in the judicial election system that will avoid 
such violations. Hence, I decline to follow the lead of 
Judge Barbour in Martin v. Ailain, 658 F.Supp. 1183 (S.D. 
Miss. 1987) in confining the remedy to those specific dis­
tricts in which a violation was found.

Unreported Ruling on Motion for Preliminary Injunction, page 
5, August 10, 1988. Clark v. Edwards, Civil Action No. 86-435(A) 
(M.D.La.).

The following Order was signed and filed on August 11, 
1988:

IT IS HEREBY ORDERED that the Governor, the Secre­
tary of State, the Attorney General, and all other election 
officials, in their official capacities, as well as their attorneys, 
agents and representatives are hereby preliminarily enjoined 
from conducting any family court, district court, or court of 
appeal election which was scheduled for the October 1, 
1988 (primary) and November 8, 1988 (general) elections, 
whether specifically enumerated or not and no certification 
shall issue to any candidate who qualified for any such elec­
tion without opposition.

Baton Rouge, Louisiana, August 11, 1988.
Unreported Order, August 11, 1988. Clark v. Edwards, Civil 
Action No. 86-435(A) (M.D.La.).

Even though no specific Section 2 violation may exist in a 
particular district at this time, the system employed by the 
state will allow the creation of a violation, given time.

The remedy is to revise the system— to cast about for 
alternative procedures under which black voters would have 
a better chance to elect judicial candidates of their choice.

There are many alternatives which may be considered. 
This court has no preconceived notion as to what changes 
the Governor and the Legislature ought to make. This court

(Continued on following page)



clearly at odds with this Court’s decision in Thornburg v. 
Gingles, 478 U.S. 30 (1986).

The inquiry into the existence of vote dilution 
caused by submergence in a multimember district is 
district-specific. When considering several separate 
vote dilution claims in a single case, courts must not 
rely on data aggregated from all the challenged dis­
tricts in concluding that racially polarized voting 
exists in each district.

Thornburg, 478 U.S. at 59 n. 28.
Other jurisdictions where the question presented here 

was, or is, at issue include:
OHIO:

where the United States District Court, S.D.Ohio, 
W.D., held the Voting Eights Act to be inappli­
cable to the judiciary. Mallory v. Eyrich 666 
F.Supp. 1060 (1987). On appeal the Sixth Cir­
cuit Court of Appeals reversed and held the Act 
applicable to the judiciary and remanded the case. 
Mallory v. Eyrich, 839 F.2d 275 (6th Cir. 1987);

ALABAMA:
where the case of Southern Christian Leadership 
Conference of Alabama, et al. v. State of Ala-

8

(Continued from previous page)
is simply convinced that the present system of electing fam­
ily court, district court, and court of appeal judges in Louisi­
ana has produced violations of Section 2 of the Voting Rights 
Act and that it will continue to produce violations unless 
it is changed.

Accordingly, the preliminary injunction previously 
issued will be made permanent and will be expanded to 
enjoin all family court, district court, and court of appeal 
elections until revisions in the eiectorial[sic] process are 
made.

Unreported Findings of Fact and Conclusions of Law, pages 41- 
42, August 15, 1988. Clark v. Edwards, Civil Action No. 86-435 
(A) (M.D.La.).



9

bama, et al., Civil Action No. 88D462-N, was filed 
on May 11, 1988 in the United States District 
Court for the Middle District of Alabama, North­
ern Division and is pending;

GEORGIA:
where the case of Tyrone Brooks, et al. v. Glynn 
County, Georgia Board of Elections, et al., Civil 
Action No. CV288-146, was filed on July 18, 1988 
in the United States District Court for the South­
ern District of Georgia, Brunswick Division and 
is pending;

ILLINOIS:
where the case of Paul L. Williams, et al. v. State 
Board of Elections, et al., Civil Action No. 88C- 
2377, was filed on March 22, 1988 in the United 
States District Court for the Northern District 
of Illinois, Eastern Division and is pending.4

TE XAS:
where the case of Rita Rangel, et al. v. Jim Mat­
tox, et al., Civil Action No. B 88-053, was filed on 
May 24, 1988 in the United States District Court 
for the Southern District of Texas, Brownsville 
District, and the case of League of United Latin 
American Citizens et al. v. William Clements, 
et al., Civil Action No. MO-88-CA-154, was filed 
on July 11, 1988 in the United States District 
Court for the Western District of Texas, Mid- 
land-Odessa Division, and are both pending.

Litigation is anticipated in several other jurisdictions, in­
cluding an additional suit in Louisiana relating to city 
court judges.

4 This case affects the largest court system in the country [and 
perhaps the world], 201 judges, all of whom were ordered by 
John F. Grady, Chief Judge, to be joined as parties on August 4, 
1988.



10
The consideration by this Court of the question pre­

sented in this petition will be of invaluable assistance to 
all of the federal district courts, with the exception of the 
states which have adopted a judiciary selection system 
embracing solely one of appointment, namely Delaware, 
Hawaii, Massachusetts, New Hampshire, New Jersey, 
Rhode Island, Vermont and Virginia. It would also be 
helpful for all of the circuit courts, with the exception of 
the District of Columbia Circuit, for there are from one to 
several states covered within each circuit where there are 
judicial elections or retention elections selection systems. 
These states by circuit are:

First Circuit Maine
Second Circuit Connecticut 

New York
Third Circuit Pennsylvania
Fourth Circuit Maryland 

North Carolina 
South Carolina 
West Virginia

Fifth Circuit Louisiana
Mississippi
Texas

Sixth Circuit Kentucky
Michigan
Ohio
Tennessee

Seventh Circuit Illinois
Indiana
Wisconsin

Eighth Circuit Arkansas
Iowa [Retention election] 
Minnesota
Missouri [Retention election] 
Nebraska [Retention election] 
North Dakota 
South Dakota



11

Ninth Circuit

Tenth Circuit

Eleventh Circuit

Alaska [Retention election]
Arizona
California
Idaho
Montana
Nevada
Oregon
Washington
Colorado [Retention election]
Kansas
New Mexico
Oklahoma
Utah [Retention election]
Alabama
Florida
Georgia

State Court Organization 1987—National Center for State 
Courts, July 1988. Selection process of appellate and trial 
court judges [tables 7 and 20].

If the Court does not take this case, chaos will ensue. 
There are already 7 states which are facing litigation that 
may require the restructuring of their judicial selection 
election systems, and it is merely a matter of time until 
the remaining 35 states that elect judges will be faced with 
similar suits. For this Court to wait until all such litiga­
tion wends its way through the lower courts will create 
havoc in the judicial process. The Fifth Circuit’s opinion 
vacating the injunction in this case, App. 44 infra, explains 
at length some of the complicating factors involved in re­
structuring a state’s judiciary. Finally, when this Court 
ultimately decides to take a case, it may require those 
states that have changed their judicial system to endure 
another upheaval because of this Court’s ultimate ruling.

To have judicial elections enjoined throughout the 
United States and to have judges serving and deciding 
cases under a cloud of litigation will discredit the judicial 
process. Further, it will make it impossible for states to



12

add judges to handle expanded case loads and to replace 
judges when an existing position becomes vacant by rea­
son of death, retirement or incapacity. It would be far 
better for this Court to determine now whether Section 2 
applies to the judiciary, and, if so, to establish and pro­
mulgate the applicable criteria to prove a Section 2 viola­
tion involving judicial elections.

The question, though extremely serious, is not compli­
cated. If substantially all of the forty-two states with a 
judiciary selection process based upon an election or a re­
tention election, must restructure their systems to conform 
with the Voting Eights Act, then the sooner the legisla­
tures of the various states may be so authoritatively in­
formed by this Court, the better for an ultimate survival 
of the state court judiciary. Changes do not come about 
easily.

II
The Term “ Representatives”  Is Not 

A Synonym for 1 ‘Elected Judicial Officials”
The term ‘ ‘ representatives’ ’ as used in Section 2(b) 

of the Voting Rights Act should not be equated with 
“ elected judicial officials,”  language which appears no­
where in the statute.

This Court has laid down definitive guidelines for 
construing language which appears in Congressional Acts.

In Consumer Products Safety Comm’n v. GTE Syl- 
vania, 447 U.S. 102 (1980), the Court stated:

We begin with the familiar canon of statutory con­
struction that the starting point for interpreting a 
statute is the language of the statute itself.

Id. at 108. Four years later, in furtherance of this con­
cept of construction, the Court held:

Since it should be generally assumed that Congress 
expresses its purposes through the ordinary meaning 
of the words it uses, we have often stated that 
“  ‘ [ajbsent a clearly expressed legislative intention



13

to the contrary, [statutory] language must ordinarily
be regarded as conclusive.’ ”

Escondido Mut. Water Co. v. La Jolla Indians, 466 U.S. 
765, 773 (1984) [Citations omitted].

In Dickerson v. New Banner Institute, Inc., 460 U.S. 
103 (1983), the Court said:

[W ]e state once again the obvious when we note that, 
in determining the scope of a statute, one is to look 
first at its language. . . .  If the language is unam­
biguous, ordinarily it is to be regarded as conclusive 
unless there is “  ‘ a clearly expressed legislative in­
tent to the contrary. ’ ’ ’

Id. at 853 [Citations omitted].
The term “ representatives”  refers to those who serve 

a specialized constituency and whose role is to represent 
the needs and interests of that constituency. The term 
“ representatives”  has never been commonly accepted as 
including the judicial branch; indeed, the reverse is true— 
namely, the judicial branch always has been treated as 
separate and distinct from the other two representative 
arms of government.

A representative of a district, be it federal, state, or 
local, exists to serve and favor his or her constituency, 
while hopefully also working for the good of the govern­
mental jurisdiction as a whole. United States representa­
tives are expected to help get government contracts for 
their districts; no one, however, would expect a federal 
judge to uphold such a contract citing as a reason the need 
of his area for governmental business. State legislators 
are expected to seek bridges and roads for their districts; 
no one, however, would expect a state judge to mandate 
that such bridges and roads be built because the people 
want them. City eouneilmen are expected to promote 
drainage projects for their council districts; no one, how­



14

ever, would expect a city judge to require them to keep Ms 
voters happy.

Judges thus are not representatives; further, they 
should not be representatives. The larger the constitu­
ency, the less parochial pressures can be brought to bear. 
An advantage to at-large elections for judges is that 
judges can make the difficult decisions without undue fear 
of dissatisfaction in the electorate. A judge would be 
much less likely to vote against the residents of a neigh­
borhood on a zoning issue if that judge was elected solely 
by that neighborhood. Justice ought to be identical 
throughout a judicial system; electing judges from neigh­
borhoods, however, might make for a system of individ­
ualized justice currently foreign to the United States. Ad­
mittedly, many problems could be cured on appeal; how­
ever, it can be extremely difficult to reverse a detailed 
record of fact-finding even when the facts have been 
slanted. Further, the respondents here seek to make ap­
pellate districts smaller also, again lessening the number 
and mix of a judge’s constituency.

An independent judiciary is crucial to the proper 
functioning of a constitutional form of government. The 
framers of our Constitution insulated the federal judiciary 
from the day-to-day whims, pressures, and reactions of 
other branches of government. The framers’ mechanism 
to achieve an independent judiciary was appointment for 
life with the advice and consent of the Senate for Article 
III judges; however, constitutional jurisprudence has not 
suggested that elected state judges should be any less in­
dependent. Indeed, numerous constitutional rights are 
protected only through the existence of an independent 
judiciary.

The Court has long recognized that the unique posi­
tion of a state judiciary (as opposed to other state of­
ficers, officials, and elected representatives) affords con­
stitutional protections to all. For example:



15

1. It is the existence of an independent judicial of­
ficer (whether elected or appointed) examining 
requests for search warrants that protects the 
rights against unlawful searches and seizures. 
Katz v. United States, 389 U.S. 347 (1967) ; Cali­
fornia v. Carney, 471 U.S. 386 (1985) (dicta).

2. It is the existence of an independent judicial of­
ficer, and that judge’s review and evaluation of 
documents, that makes a prejudgment seizure 
lawful and not violative of due process rights in 
civil actions. Mitchell v. W. T. Grant, 416 U.S. 
600 (1974). In Mitchell, the Supreme Court spe­
cifically held Louisiana’s prejudgment seizure 
statutes constitutional because of the scrutiny of 
Louisiana District Court Judges.

3. The Supreme Court, in discussing Article III, 
Section 1’s guarantee of an independent and im­
partial adjudication by a federal judiciary, has 
read prior cases as indicating that the existence 
of an independent judiciary “ serves to protect 
primarily personal, rather than structural, in­
terests.” Commodity Futures Trading Commis­
sion v. Schor, — U.S. —, at —, 106 S.Ct. 3245, at 
3256, 92 L.Ed.2d 675 at 691 (1986). Likewise, 
state judges protect the personal interest of the 
litigants, not structural interests of the State or 
of the electorate.

4. In paternity proceedings, the State as an entity 
may have one set of interests, but it is the exist­
ence of an independent judiciary that protects the 
rights of litigants, not any state interest per­
ceived by members of the legislative or executive 
branch. See Rivera v. Minnich, — U.S. —, 107
S.Ct. 3001, 97 L.Ed.2d 473, 481 n. 8 (1987).

5. Local legislative and executive officials may seek 
to pass and enforce ordinances prohibiting the 
posting of signs on public property. While pure­
ly aesthetic objectives may be considered and en-



16

acted by local elected officials, the enforceability 
and constitutionality of those laws must be as­
certained by an independent judicial assessment 
of the substantiality of the government’s interest 
and by a court’s scrutiny of aesthetics-based re­
strictions on speech. See, e.g., Members of the 
City Council of the City of Los Angeles v. Tax­
payers’ for Vincent, 466 U.S. 789 (1984).

These are but a few examples of the importance of 
an independent judiciary in the range of constitutional is­
sues that affect the life of every citizen of this country.

Congress, had it wanted specifically to include judges 
under Section 2(b) of the Voting Eights Act, could have 
done so by substituting the term “elected officials” for the 
term “ representative” ; it did not do so. In a representa­
tive form of government, such as ours, it is always true 
that a “ representative” is an “ elected official” ; however, 
the converse is not always true.

The 1982 Amendment to the Voting Rights Act of 
1965 added language describing those circumstances that 
would constitute a violation of Section 2. Section 2(b) 
expressly states that a violation exists when “ [members 
of a protected class] have less opportunity than other 
members of the electorate to participate in the political 
process and to elect representatives of their choice.”

Representatives have a constituency which numbers 
in the hundreds to hundreds of thousands, to each of whom 
they owe fidelity and from each of whom they are likely, 
sooner or later, to receive correspondence or a telephone 
call or even perhaps a personal visit.

Judges have but one constitutency, the blindfolded 
lady with scales, sword and shield.



17
III

Louisiana’s Time Honored 
Tradition Of Electing Its Judiciary 

Has Passed Justice Department Scrutiny
The statutes and laws concerning the Louisiana ju­

dicial electoral system are not, in whole or part, prod­
ucts of racial discrimination. Louisiana first introduced 
its judicial selection system 136 years ago in its 1852 
Constitution, Article 64. The parishes of Orleans, St. 
Bernard, Plaquemines, and Jefferson have had two jus­
tices on the Louisiana Supreme Court since Louisiana’s 
1879 Constitution Article 82, adopted 109 years ago. See 
1898 Constitution Article 87; 1913 Constitution Article 
87; 1921 Constitution Article 7 §9 ; 1974 Constitution 
Article 5, § 4.

The 1974 Constitution, Article 14, § 16, relegated the 
listing of districts formerly in Article 7, § 9 of the 1921 
Constitution to the statutes. This statute is LA. R.S. 
13:101.

The 1974 Constitution was precleared by the Justice 
Department of the United States of America on Novem­
ber 26, 1974 [thus after the adoption of the Voting Rights 
Act] except for Article 8 § 10B, which was subsequently 
precleared on June 6, 1983 [thus after the 1982 amend­
ment to the Voting Rights Act].

In Orleans Parish blacks have always had the op­
portunity of voting for the candidates of their choice. In 
1972 both positions on the Louisiana Supreme Court for 
the First Supreme Court District were vacant. Two blacks, 
Judge Ortique and a Mr. Amadee, ran for election, one 
for each of the seats, with the following results:

Total Orleans

Ortique 27,326 21,224
Calogero 66,411 33,700
Redmann 21,865 10,240
Sarpy 74,320 34,011



18

Total Orleans

Amedee 11,722 8,847
Marcus 78,520 47,725
Bossetta 35,267 19,115
Garrison 51,286 25,437
Samuel 25,659 6,042

New Orleans Times-Picayune, August 21, 1972 (on file in
the Louisiana Supreme Court Judicial Administrator’s
office).

Judge Ortique thus received in Orleans Parish 21.4% 
of the vote, and Mr. Amadee received 8.26% of the votes 
in Orleans Parish. In 1972 blacks represented 33.35% of 
the registered voters in Orleans Parish; therefore, the 
majority of the blacks voted for the white candidate in 
one race, and a substantial percentage in the other.

IV
This Court’s Decisions Make Clear That 

Judges Are Not, And Should Not Be, Representatives
The Supreme Court’s use of the word “ representa­

tives” over the years shows that the Court considers the 
term to refer to legislators or administrators as opposed 
to judges. For example, in Davis v. Bandemer, 478 U.S. 
109 (1986), the Court used the terms “ representative” and 
“ legislator” interchangeably:

Rather, it is that one electoral district elects a single 
representative and another district of the same size 
elects two or more—the elector’s vote in the former 
district having less weight in the sense that he may 
vote for and his district be represented by only one 
legislator, while his neighbor in the adjoining district 
votes for and is represented by two or more.

Id. at 123.
Connor v. Finch, 431 U.S. 407 (1977), a voting rights 

case, also uses the terms interchangeably:



19

The Equal Protection Clause requires that leg­
islative districts be of nearly equal population, so that 
each person’s vote may be given equal weight in the
election of representatives.

Id. at 416; accord, White v. Regester, 412 U.S. 755, 764, 
779 (1973).

In Reynolds v. Sims, 377 U.S. 533 (1964), the Court, 
while speaking of state legislatures, stated that those in­
dividuals elected to the legislative branch were the peo­
ple’s representatives:

As long as ours is a representative form of govern­
ment, and our legislatures are those instruments of 
government elected directly by and directly represen­
tative of the people, the right to elect legislators in 
a free and unimpaired fashion is a bedrock of our 
political system. . . . But representative government is 
in essence self-government through the medium of 
elected representatives of the people, and each and 
every citizen has an inalienable right to full and 
effective participation in the political processes of 
his State’s legislative bodies.

Id. at 562, 565. The Court went on to call the state legis­
lature “ the only instrument of state government directly 
representative of the people.” Id. at 576; accord, Whit­
comb v. Chavis, 403 U.S. 124,141 (1971).

In his concurring opinion in Dennis v. United States, 
341 U.S. 494 (1951), Justice Frankfurter flatly stated: 
“ Courts are not representative bodies. They are not de­
signed to be a good reflex of a democratic society.” Id. 
at 517, 525 (Frankfurter, J., concurring in the judgment).

In Avery v. Midland County, 390 U.S. 474 (1968), an­
other voting rights case, the Court made clear the appli­
cability of the Equal Protection clause of the Fourteenth 
Amendment to local subdivisions, again using the term 
“ representative.” The Court noted that state legislators



20

enact many laws but do not govern countless matters of 
local concern, which are left to the local level to decide:

What is more, in providing for the governments of 
their cities, counties, towns, and districts, the States 
characteristically provide for representative govern­
ment—for decisionmaking at the local level by rep­
resentatives elected by the people.

Id. at 481. The defendants had argued that the County 
Commissioners Court was not sufficiently legislative and 
that therefore unequal districts were permissible. The 
Court, however, noted that many of its functions were leg­
islative and that the County Commissioners Court was a 
general governing body:

[T]he court does have power to make a large number 
of decisions having a broad range of impacts on all 
the citizens of the county. It sets a tax rate, equalizes 
assessments, and issues bonds. It then prepares and 
adopts a budget for allocating the county’s funds, and 
is given by statute a wide range of discretion in 
choosing the subjects on which to spend.

Id. at 483. Because of these general powers, the County 
Commissioners Court could not have unequal districts. 
Never is there any intimation in the opinion that a purely 
judicial body would be judged the same way by the Court.

In Milwaukee v. Illinois, 451 U.S. 304 (1981), the 
Court contrasted the role of the courts with that of Con­
gress, a representative body:

The enactment of a federal rule in an area of nat­
ional concern, and the decision whether to displace 
state law in doing so, is generally made not by the 
federal judiciary, purposefully insulated from elec­
toral pressures, but by the people through their elect­
ed representatives in Congress.

Id. at 312-13; accord, Schweiker v. Wilson, 450 U.S. 221, 
230 (1981); Cannon v. University of Chicago, 441 U.S.



21

677, 696-97 (1979) (“ it is always appropriate to assume 
that our elected representatives . . . know the law.” ).

In arguing that the Supreme Court should not invali­
date a Connecticut birth control statute, Justice Stewart 
stated:

It is the essence of judicial duty to subordinate our 
own personal views, our own ideas of what legislation 
is wise and what is not. If, as I should surely hope, 
the law before us does not reflect the standards of the 
people of Connecticut, the people of Connecticut can 
freely exercise their true Ninth and Tenth Amend­
ment rights to persuade their elected representatives 
to repeal it.

Griswold v. Connecticut, 381 U.S. 479, 530-31 (1965) (Stew­
art, J., dissenting) (emphasis esupplied).

V

The Fundamental Difference Between 
Representatives And Members Of The Judiciary 

Is Deeply Rooted In This Country’s History

The legal history of this nation demonstrates a clear 
and concise distinction as between one who is a represen­
tative of the people and one who dedicates his life to a 
different calling, that of the judiciary.

The idea that judges are to be “ representatives” is 
totally foreign to American legal history. Instead, this 
country was founded, and has endured, on the principle 
of an independent judiciary free of the sort of constituent 
pressures on, and parochial viewpoints required of, legis­
lators.

The history of the American judiciary was traced by 
Professor G. Edward White in The American Judicial



22

Tradition.5 Professor White began by stating that during 
colonial times judges “were agents of the provincial gov­
ernment” with “ a wide range of petty powers but of little 
independence.” Judicial Tradition!.

Beginning with Chief Justice John Marshall, the 
American judicial tradition emerged. A core element of 
that tradition has always included “ a measure of true in­
dependence and autonomy for the appellate judiciary from 
the other two branches of government.”  Judicial Tradi­
tion 9. Professor White summarized Chief Justice Mar­
shall’s views concerning the judiciary as follows :

An independent judiciary was logically the ultimate 
necessity in Marshall’s jurisprudence, the culmina­
tion of his beliefs about law and government. He 
sought to show that judicial independence as not mere­
ly a side effect of federalism but a first principle of 
American civilization. . . . Against the potential chaos 
attendant on mass participatory democracy, republi­
cans erected the institutional buffers of legislative 
representatives and an independent judiciary. The 
excesses of the people were moderated by representa­
tion, a process by which their passionate demands were 
reformulated by an enlightened and reasonable class 
of public servants. The need of the populace for an 
articulation of their individual rights under law was 
met by the presence of a body of judges not beholden 
to the masses in any immediate, partisan sense.

Judicial Tradition 18, 20.
Chief Justice Marshall’s vision of the American judi­

cial tradition was not unique. Alexander Hamilton “ en­
visaged judicial review as an exercise in politics through 
which an independent judicial elite could temper the dem-

5 Citations are hereinafter abbreviated as Judicial Tradition. 
Page references refer to the 1978 Oxford University Press paper­
back edition.



oeratic excesses of legislatures by affirming the repub­
lican political balances inherent in the Constitution. ’ ’ 
Judicial Tradition 24. Some among the Founding Fathers 
thought an independent judiciary necessary because “ even 
a government made up of the people’s representatives was 
not a sufficient buffer against the excesses of the mob.” 
Judicial Tradition 320.

This American judicial tradition has not been applic­
able only to the federal judiciary. Professor White com­
mented that the state constitutions “ were patterned on 
the federal Constitution, with its tripartite division of 
powers.” Judicial Tradition 109. James Kent, Chief 
Judge of the New York Supreme Court and later Chan­
cellor of New York, “ viewed the judiciary as a buffer be­
tween established wealth and the excessively democratic 
legislature. ’ ’ Judicial Tradition 112. Much more re­
cently, Roger Traynor, Chief Justice of the California Su­
preme Court, wrote that judges “ enjoyed a ‘ freedom from 
political and personal pressures and from adversary bias’ 
[and that] [t]heir ‘ environment for work’ was ‘ indepen­
dent and analytically objective.’ ”  Judicial Tradition 296, 
quoting Traynor, ‘ ‘ Badlands in an Appellate Judge’s 
Realm of Reasons,’ ’ 7 Utah L. Rev. 157, 167, 168 (1960).

Professor White traced “ modern liberalism’ ’ trends 
throughout the Twentieth Century. According to this 
political theory, judges “ were not, by and large, repre­
sentatives of the people, and their nonpartisan status in­
sulated them from the waves of current opinion.”  Judi­
cial Tradition 320. Legislatures on the other hand ‘ ‘ were 
‘ representative of popular opinion’ and could ‘ canvass 
a wide spectrum of views.’ ”  Judicial Tradition 322. One



24

Twentieth Century Justice, Felix Frankfurter, has called 
the judiciary the “ antidemocratic, unrepresentative”  
branch of government.”  Judicial Tradition 367.®

Legal theorists have also stated that judges are not 
“ representatives.”  Perhaps the most provocative book 
to appear on judicial review during the last few years is 
Democracy and Distrust by Professor John Hart Ely.6 7 
Professor Ely contrasts the role of the courts with the 
role of the representative branch of government, the legis­
lative branch. He sought an approach to judicial review 
“ not hopelessly inconsistent with our nation’s commit­
ment to representative democracy.”  Democracy and Dis­
trust 41. In his book, Professor Ely developed a repre­
sentation-reinforcing theory of judicial review in which 
the non-representative branch, the judiciary, would re­
view legislation to review the motivation of the represen­
tative branch, the legislature, to make sure that the views 
of all groups were represented in lawmaking. He con­
cluded by stating that “ constitutional law appropriately 
exists for those situations where representative govern­
ment cannot be trusted.” Democracy and Distrust 183.

Professor Alexander Bickel spoke of the importance 
of judicial independence in The Supreme Court and the 
Idea of Progress :8

The restraints of reason tend to ensure also the in­
dependence of the judge, to liberate him from the de-

6 Professor Lawrence Friedman also has written about the his­
tory of a strong, independent judiciary in the federal system and 
in state systems. L. Friedman, A History of American Law 116, 
118 (Simon & Schuster 1973 paperback edition).
7 Page references are to the 1980 Harvard University Press hard­
bound edition.
8 Citations are hereinafter abbreviated as Supreme Court and 
Progress. Page references refer to the 1978 Yale University Press 
paperback edition.



2 5

mands and fears—dogmatic, arbitrary, irrational, 
self- or group-centered—that so often enchain other 
public officials. They make it possible for the judge, 
on some occasions, at any rate, to oppose against the 
will and faith of others, not merely his own will or 
deeply-felt faith, but a method of reaching judgments 
that may command the allegiance, on a second thought 
even of those who find a result disagreeable. The judge 
is thus buttressed against the world, but what is per­
haps more significant and certain, against himself, 
against his own uatural tendency to give way before 
waves of feeling and opinion that may be as momen­
tary as they are momentarily overwhelming. . . .

The independence of the judges is an absolute 
requirement if individual justice is to be done, if a 
society is to ensure that individuals will be dealt with 
in accordance with duly enacted policies of the society, 
not by the whim of officials or of mobs, and dealt with 
evenhandedly, under rules that would apply also to 
others similarly situated, no matter who they might be.

Supreme Court and Progress 82, 84.
Professor Bickel contrasted the Court on the one hand 

with the people and its representatives on the other, stat­
ing, “ Virtually all important decisions of the Supreme 
Court are the beginnings of conversations between the 
Court and the people and their representatives.”  Supreme 
Court and Progress 91.

Supreme Court and Progress also contains much ma­
terial on reapportionment. Supreme Court and Progress 
35, 158-59, 168-73. Never in that discussion is there any 
intimation that redistricting of the courts ought to be 
considered. That notion would run counter to his strong 
argument for judicial independence.

-o



2 6

CONCLUSION

This Court has always recognized the importance of 
an independent judiciary. This Court has held that, 
“ There can, of course, he no disagreement among us as to 
the imperative need for total and absolute independence 
of judges in deciding cases or in any phase of the de­
cisional function.”  Chandler v. Judicial Council, 398 U.S. 
74, 84 (1970). In a dissent in the same case, Justice Doug­
las stated, “ An independent judiciary is one of this Na­
tion’s outstanding characteristics.”  Id. at 136 (Douglas, 
J., dissenting).

A  quarter of a century ago this Court declared, 
“ Legislators represent people, not trees or acres.”  Rey­
nolds v. Sims, 377 U.S. 533, 562 (1964). Judges, on the 
other hand, must consider the interests of people and of 
trees (as well as snail darters, see Tennessee Valley Au­
thority v. Hill, 437 U.S. 153 (1978)). Unlike legislators, 
judges are not “ instruments of government elected di­
rectly by and directly representative of the people.”  377 
U.S. at 562. Making judges representatives would do vio­
lence to (and perhaps destroy) the American concept of an 
independent judiciary.

For the foregoing reasons, a writ of certiorari should, 
therefore, be granted to review and ultimately reverse the 
decision below.

All of the above and foregoing is thus respectfully 
submitted.



27

ROBERT G. PUGH 
Counsel of Record 

ROBERT G. PUGH, JR.
330 Marshall Street, Suite 1200 

Shreveport, LA 71101
(318)

M. TRUMAN W OODW ARD, 
JR.
909 Poydras Street 
Suite 2300 „
New Orleans, LA 70130
BLAKE G. ARATA 
201 St. Charles Avenue 
New Orleans, LA 70130

SPECIAL ASSISTANT

>27-2270
A. R. CHRISTOVICH 
2300 Pan American Life 
Center
601 Poydras Street 
New Orleans, LA 70130
MOISE W. DENNERY 
601 Poydras Street 
New Orleans, LA 70130

ATTORNEYS GENERAL
WILLIAM J. GUSTE, JR. 

ATTORNEY GENERAL 
Louisiana Department of justice 

234 Loyola Avenue, 7th Floor 
New Orleans, Louisiana 70112 

(504) 568-5575



United States Statutes

42 § 1973. Denial or abridgement of right to vote on ac­
count of race or color through voting qualifications or
prerequisites; establishment of violation
(a) No voting qualification or prerequisite to vot­

ing or standard, practice, or procedure shall be imposed 
or applied by any State or political subdivision in a man­
ner which results in a denial or abridgement of the right 
of any citizen of the United States to vote on account of 
race or color, or in contravention of the guarantees set 
forth in section 1973b(f)(2) of this title, as provided in 
subsection (b) of this section.

(b) A violation of subsection (a) of this section is 
established if, based on the totality of circumstances, it is 
shown that the political processes leading to nomination 
or election in the State or political subdivision are not 
equally open to participation by members of a class of 
citizens protected by subsection (a) of this section in that 
its members have less opportunity than other members of 
the electorate to participate in the political process and 
to elect representatives of their choice. The extent to 
which members of a protected class have been elected to 
office in the State or political subdivision is one circum­
stance which may be considered: Provided, That nothing 
in this section establishes a right to have members of a 
protected class elected in numbers equal to their propor­
tion in the population.

App. 1



A p p .  2

Louisiana Constitution 

Article 5. Judicial Branch

Section 3. Supreme Court; Composition; Judgments; 
Terms

Section 3. The supreme court shall he composed of 
a chief justice and six associate justices, four of whom 
must concur to render judgment. The term of a supreme 
court judge shall be ten years.

Section 4. Supreme Court; Districts

Section 4. The state shall be divided into at least six 
supreme court districts, and at least one judge shall be 
elected from each. The districts and the number of judges 
assigned to each on the effective date of this constitution 
are retained, subject to change by law enacted by two- 
thirds of the elected members of each house of the legis­
lature.



A p p .  3

Louisiana Revised Statutes

R.S. 13.-101 Supreme court district; justices

The state shall be divided into six supreme court dis­
tricts and the supreme court shall be composed of justices 
from the said districts as set forth below:

(1) First district. The parishes of Orleans, St. 
Bernard, Plaquemines, and Jefferson shall compose the 
first district, from which two justices shall be elected.

(2) Second district. The parishes of Oaddo, Bos­
sier, Webster, Claiborne, Bienville, Natchitoches, Red 
River, DeSoto, Winn, Vernon, and Sabine shall compose 
the second district, from which one justice shall be elected.

(3) Third district. The parishes of Rapides, Grant, 
Avoyelles, Lafayette, Evangeline, Allen, Beauregard, Jef­
ferson Davis, Calcasieu, Cameron, and Acadia shall com­
pose the third district from which one justice shall be 
elected.

(4) Fourth district. The parishes of Union, Lincoln, 
Jackson, Caldwell, Ouachita, Morehouse, Richland, Frank­
lin, West, Carroll, East Carroll, Madison, Tensas, Concor­
dia, LaSalle, and Catahoula shall compose the fourth dis­
trict, from which one justice shall be elected.

(5) Fifth district. The parishes of East. Baton 
Rouge, West Baton Rouge, West Feliciana, East Feliciana, 
St. Helena, Livingston, Tangipahoa, St. Tammany, Wash­
ington, Iberville, Pointe Coupee, and St. Landry shall com­
pose the fifth district, from which one justice shall be 
elected.

(6) Sixth district. The parishes of St. Martin, St. 
Mary, Tberia, Terrebonne, Lafourche, Assumption, Ascen­
sion, St. John the Baptist, St. James, St, Charles, and Ver­
milion shall compose the sixth district from which one 
justice shall be elected.



A p p .  4

Ronald CHISOM, et al., 
Plaintiff s-Appellants,

v.
Edwin EDWARDS, in his capacity as 

Governor of the State of Louisiana, 
et al., Defendants-Appellees.

No. 87-3463.
United States Court of Appeals,

Fifth Circuit.
Feb. 29, 1988.

Black registered voters in Orleans Parish of Louisi­
ana brought suit challenging constitutionality of present 
system of electing Louisiana Supreme Court Justices from 
First Supreme Court District. The United States Dis­
trict Court for the Eastern District of Louisiana, Charles 
Schwartz, Jr., J., 659 F.Supp. 183, dismissed, and voters 
appealed. The Court of Appeals, Johnson, Circuit Judge, 
held that: (1) judicial elections are covered by Voting 
Rights Act section which prohibits any law or procedure 
which has effect of denying or abridging right to vote on 
basis of race, and (2) complaint by black registered voters 
challenging current at-large system of electing state Su­
preme Court Justices from their district established theory 
of discriminatory intent and stated claim of racial dis­
crimination under Fourteenth and Fifteenth Amendments.

Reversed and remanded.

1. Elections 12(1)

Judicial elections are covered by Voting Rights Act 
section which prohibits any law or procedure which has 
effect of denying or abridging right to vote on basis of



A p p .  5

race. Voting Eights Act of 1965, §2, as amended, 42 
U.S.C.A. § 1973.

2. Civil Rights 13.4(6)

Elections 7

Discriminatory purpose is prerequisite to recovery 
under Fourteenth and Fifteenth Amendments. U.S.C.A. 
Const. Amends. 14,15.

3. Civil Rights 13.12(3)

Elections 7

Complaint by black registered voters challenging cur­
rent at-large system of electing state Supreme Court Jus­
tices from their district established theory of discrimina­
tory intent and stated claim of racial discrimination un­
der Fourteenth and Fifteenth Amendments; voters cited 
history of purposeful official discrimination on basis of 
race in state and existence of wide-spread racially polar­
ized voting in elections involving black and white candi­
dates, concluding that current election procedures for se­
lecting Supreme Court Justices from their area diluted 
minority voting strength. U.S.C.A. ConstAmends. 14, 15.

William P. Quigley, Ron Wilson, New Orleans, La., 
for plaintiffs-appellants.

Mark L. Gross, Justice Dept., Jessica Dunsay Silver, 
Washington, D.C., for amicus U.S.

Pamela S. Karlan, Charles Stephen Ralston, New 
York City, for Chisom Group.



A p p .  6

Michael H. Rabin, Baton Roage, La., Kendall L. Vick, 
Asst. Atty. Gen., La. Dept, of Jastice, M. Trnman Wood­
ward, Jr., New Orleans, La., for arnicas LDJA.

Michael B. Wallace, Jackson, Miss., Daniel J. Popeo, 
Washington Legal Foandation, Washington, D.C., A.R. 
Christovicli, Jr., Moise W. Dennery, New Orleans, La., 
for arnicas Washington Legal and Allied Ed.

John L. Maxey, II, Special Coansel, Stephen J. Kirch- 
mayr, Deputy Atty. Gen., Hubbard T. Saunders, IY, Jack- 
son, Miss., for amicus State of Miss.

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

Before BROWN, JOHNSON, and HIGGINBOTHAM, 
Circuit Judges.

JOHNSON, Circuit Judge:

Plaintiffs, black registered voters in Orleans Parish, 
Louisiana, raise constitutional challenges to the present 
system of electing Louisiana Supreme Court Justices from 
the First Supreme Court District. Plaintiffs allege that 
the current at-large system of electing Justices from the 
First District impermissibly dilutes the voting strength 
of black voters in Orleans Parish in violation of Section 
2 of the Voting Rights Act of 1965, as amended in 1982 
and the fourteenth and fifteenth amendments. The dis­
trict court dismissed the section 2 claim pursuant to Fed. 
R.Civ.P. 12(b) (6) for failure to state a claim, finding that 
section 2 does not apply to the election of state judges. 
Concluding that section 2 does so apply, we reverse.



A p p .  7

The primary issue before this Court is whether sec­
tion 2 of the Voting Rights Act applies to state judicial 
elections.

I. FACTS AND PROCEDURAL HISTORY

The facts are undisputed. Currently, the seven Jus­
tices on the Supreme Court of Louisiana are elected from 
six geographical judicial districts. Five of the six dis­
tricts elect one Justice each. However, the First District, 
comprised of four parishes (Orleans, St. Bernard, Plaque­
mines, and Jefferson Parishes), elects two Justices at- 
large.

The population of the four parish First Supreme 
Court District is approximately thirty-four percent black 
and sixty-three percent white. The registered voter pop­
ulation reveals a somewhat similar percentage breakdown, 
with approximately thirty-two percent black and sixty- 
eight percent white. Over half of the four parish First 
Supreme Court District’s population and over half of the 
district’s registered voters live in Orleans Parish. Im­
portantly, Orleans Parish has a fifty-five percent black 
population and a fifty-two percent black registered voter 
population. Plaintiffs seek a division of the First District 
into two single-member districts, each to elect one Justice. 
Under the plaintiffs’ plan of division, one proposed dis­
trict would be composed of Orleans Parish with a greater 
black population and black registered voter population 
than white. The other proposed district would be com­
posed of Jefferson, Plaquemines, and St. Bernard Par­
ishes ; this district would have a substantially greater white 
population and white registered voter population than 
black. It is particularly significant that no black person



A p p .  8

has ever been elected to the Louisiana Supreme Court, 
either from the First Supreme Court District or from 
any one of the other five judicial districts.

To support their voter dilution claim, plaintiffs cite, 
among other factors, a history of purposeful official dis­
crimination on the basis of race in Louisiana and the 
existence of widespread racially polarized voting in elec­
tions involving black and white candidates. Specifically, 
plaintiffs allege in their complaint:

Because of the official history of racial discrimination 
in Louisiana’s First Supreme Court District, the wide 
spread prevalence of racially polarized voting in the 
district, the continuing effects of past discrimination 
on the plaintiffs, the small percentage of minorities 
elected to public office in the area, the absence of 
any blacks elected to the Louisiana Supreme Court 
from the First District, and the lack of any justifiable 
reason to continue the practice of electing two Jus­
tices at-large from the New Orleans area only, plain­
tiffs contend that the current election procedures for 
selecting Supreme Court Justices from the New Or­
leans area dilutes minority voting strength and there­
fore violates the 1965 Voting Rights Act, as amended.

On May 1, 1987, the district court, 659 F.Supp. 183, 
dismissed plaintiffs’ complaint for failure to state a claim 
upon which relief may be granted. In its opinion accom­
panying the dismissal order, the district court concluded 
that section 2 of the Voting Rights Act does not apply to 
the election of state judges. To support this conclusion, 
the district court relied primarily on the amended lan­
guage in section 2 which states “ to elect representatives of 
their choice.” The district court reasoned that since judges 
are not “ representatives,” judicial elections are therefore



A p p .  9

not within the protective ambit of section 2. Focusing on 
a perceived inherent difference between representatives 
and judges, the district court stated, “ [j]udges, by their 
very definition, do not represent voters but are ‘appointed 
[or elected] to preside and administer the law.’ ” (cita­
tion omitted). The district court further relied on what 
was understood to be a lack of any reference to judicial 
elections in the legislative history of section 2, and on pre­
vious court decisions establishing that the “ one person, 
one vote” principle does not apply to judicial elections. 
As to plaintiffs’ fourteenth and fifteenth amendment chal­
lenges, the district court determined that plaintiffs had 
failed to plead an intent to discriminate with sufficient 
specificity to support their constitutional claims. Plain­
tiffs appeal the district court’s dismissal of both their 
statutory and constitutional claims.

[1] In an opinion just released, the Sixth Circuit, 
addressing a complaint that the present system of electing 
municipal judges to the Hamilton County Municipal Court 
in Ohio violates section 2, concluded that section 2 does 
indeed apply to the judiciary. Mallory v. Eyrich, 839 F.2d 
275 (6th Cir.1988). Other than our district court, only 
two district courts have ruled on the coverage of section 
2 in this context. The Mallory district court, subsequently 
reversed, concluded that section 2 does not extend to the 
judiciary. Mallory v. Eyrich, 666 F.Supp. 1060 (S.D. Ohio 
1987). The other district court, Martin v. Attain, 658 F. 
Supp. 1183 (S.D.Miss. 1987), determined that section 2 
does apply to the judicial branch. After consideration of 
the language of the Act itself; the policies behind the en­
actment of section 2; pertinent legislative history; previ­
ous judicial interpretations of section 5, a companion sec­



A p p .  1 0

tion to section 2 in the A ct; and the position of the United 
States Attorney General on this issue; we conclude that 
section 2 does apply to the election of state court judges. 
We therefore reverse the judgment of the district court.

A. The Plain Language of the Act

The Voting Rights Act wras enacted by Congress in 
1965 for a broad remedial purpose—“to rid the country 
of racial discrimination in voting.” South Carolina v. Kat- 
zenbach, 383 U.S. 301, 315, 86 S.Ct. 803, 812, 15 L.Ed.2d 
769 (1966). Since the inception of the Act, the Supreme 
Court has consistently interpreted the Act in a manner 
which affords it “ the broadest possible scope” in com­
batting racial discrimination. Allen v. State Board of 
Elections, 393 U.S. 544, 565, 89 S.Ct. 817, 831, 22 L.Ed.2d 
1 (1969). As a result ,the Act effectively regulates a wide 
range of voting practices and procedures. See United- 
States v. Sheffield Board of Commissioners, 435 U.S. 
110, 122-23, 98 S.Ct. 965, 974-75, 55 L.Ed.2d 148 (1978). 
Referred to by the Supreme Court as a provision which 
“broadly prohibits the use of voting rules to abridge exer­
cise of the franchise on racial grounds,” Katzenbach, 383 
U.S. at 316, 86 S.Ct. at 812, section 2 of the Voting Rights 
Act of 1965, prior to its amendment in 1982, provided as 
follows:

No voting qualification or prerequisite to voting, or 
standard, practice, or procedure shall be imposed or 
applied by any State or political subdivision to deny 
or abridge the right of any citizen of the United States 
to vote on account of race or color, or in contravention 
of the guarantees set forth in section 1973b(f)(2) of 
this title.



A p p .  1 1

Congress amended section 2 in 1982 in response to 
the Supreme Court’s decision in Mobile v. Bolden, 446 
U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), wherein the 
Court concluded that section 2 operated to prohibit only 
intentional acts of discrimination by state officials. In 
disagreement with the high court’s pronouncement, Con­
gress amended section 2 with language providing that 
proof of intent is not required to successfully prove a 
section 2 violation. Instead, Congress adopted the “ re­
sults” test, whereby plaintiffs may prevail under section 
2 by demonstrating that, under the totality of the circum­
stances, a challenged election law or procedure has the 
effect of denying or abridging the right to vote on the 
basis of race. However, while effecting significant change 
through the 1982 amendments, Congress specifically re­
tained the operative language of original section 2 defin­
ing the section’s coverage—“ [n]o voting qualification or 
prerequisite to voting or standard, practice, or procedure 
shall be imposed. . . . ”  Section 2, as amended in 1982, 
now provides:

(a) No voting qualification or prerequisite to 
voting or standard, practice, or procedure shall be 
imposed or applied by any State or political subdi­
vision in a manner which results in a denial or abridge­
ment of the right of any citizen of the United States 
to vote on account of race or color, or in contraven­
tion of the guarantees set forth in section 1973b(f) (2) 
of this title, as provided in subsection (b) of this 
section.

(b) A violation of subsection (a) is established 
if, based on the totality of circumstances, it is shown 
that the political processes leading to nomination or 
election in the State or political subdivision are not 
equally open to participation by members of a class



A p p .  1 2

of citizens protected by subsection (a) of this section 
in that its members have less opportunity than other 
members of the electorate to participate in the politi­
cal process and to elect representatives of their choice. 
The extent to which members of a protected class 
have been elected to office in the State or political 
subdivision is one circumstance which may be con­
sidered: Provided, That nothing in this section es­
tablishes a right to have members of a protected 
class elected in numbers equal to their proportion in 
the population.

Section 14(c)(1), which defines “voting” and “vote” 
for purposes of the Act, sets forth the types of election 
practices and elections which are encompassed within the 
regulatory sphere of the Act. Section 14(c)(1) states,

The terms “vote” or “ voting” shall include all action 
necessary to make a vote effective in any primary, 
special or general election, including, but not limited 
to, registration, listing pursuant to this subchapter 
or other action required by law prerequisite to voting, 
casting a ballot, and having such ballot counted prop­
erly and included in the appropriate totals of votes 
cast with respect to candidates for public or party 
office and propositions for which votes are received 
in an election.

Clearly, judges are “ candidates for public or party office” 
elected in a primary, special, or general election; there­
fore, section 2, by its express terms, extends to state ju­
dicial elections. This truly is the only construction con­
sistent with the plain language of the Act.1

1. Evidence of congressional intent to reach all types of elec­
tions, regardless of who or what is the object of the vote, 
is the fact that votes on propositions are within the purview 
of the Act. Section 14(c)(1).



A p p .  1 3

In Dillard v. Crenshaw County, 831 F.2d 246 (11th 
Cir.1987), the Eleventh Circuit addressed the issue of the 
coverage of section 2. In Dillard, the court rejected the 
defendant county’s implicit argument that the election of 
an at-large chairperson of a county commission was not 
covered by section 2 due to that position’s administrative, 
as opposed to legislative, character. The Dillard court 
stated,

Nowhere in the language of Section 2 nor in the 
legislative history does Congress condition the appli­
cability of Section 2 on the function performed by an 
elected official. The language is only and uncompro­
misingly premised on the fact of nomination or elec­
tion. Thus, on the face of Section 2 it is irrelevant 
that the chairperson performs only administrative and 
executive duties. It is only relevant that Calhoun 
County has expressed an interest in retaining the post 
as an electoral position. Once a post is open to the 
electorate, and if it is shown that the context of that 
election creates a discriminatory but corrigible elec­
tion practice, it must be open in a way that allows 
racial groups to participate equally.

Id. at 250.

The State asserts that by amending section 2 in 1982, 
Congress intentionally grafted a limitation on section 
14(c) (1) that “ candidates for public or party office” only 
include “ representatives” ; since judges are not “ represen­
tatives,” state judicial elections are exempt from the pro­
tective measures of the Act. In making this contention, 
the State, as well as the district court, points to the dis­
tinctive functions of judges as opposed to other elected 
officials. Specifically, the district court, citing Wells v. 
Edwards, 347 F.Supp. 453 (M.D.La. 1972), affd, 409 U.S.



A p p .  1 4

1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973), notes that the 
“ one person, one vote” principle of apportionment has 
been held not to apply to the judicial branch of govern­
ment on the basis of this distinction. See also Voter In­
formation Project v. City of Baton Rouge, 612 F.2d 208 
(5th Cir.1980). In Wells, the plaintiff sought reapportion­
ment of the Louisiana Supreme Court .Judicial Districts in 
accordance with one person, one vote principles. The Wells 
court rejected the plaintiff’s claim, reasoning that the “ pri­
mary purpose of one-man, one-vote apportionment is to 
make sure that each official member of an elected body 
speaks for approximately the same number of constitu­
ents.” Wells, 347 F.Supp, at 455. The district court then 
concluded that since judges do not represent, but instead 
serve people, the rationale behind one person, one vote 
apportionment of preserving a representative form of gov­
ernment is not relevant to the judiciary. Id.

In Voter Information, this Court, bound by the hold­
ing in Wells due to the Supreme Court’s summary affirm­
ance of that decision, rejected the plaintiff’s claim for 
reapportionment of judicial districts on the one person, 
one vote theory. Voter Information, 612 F.2d at 211. 
However, the Voter Information Court then emphasized 
that the plaintiffs further asserted claims of racial dis­
crimination under the fifteenth amendment which resulted 
in the dilution of black voting strength. Recognizing the 
difference between the two types of claims, the Court ex­
pressly rejected the applicability of the Wells decision 
to claims of racial discrimination, stating,

[T]he various ‘one man one vote’ cases involving
Judges make clear that they do not involve claims of
race discrimination as such.



A p p .  1 5

To hold that a system designed to dilute the vot­
ing strength of black citizens and prevent the election 
of blacks as Judges is immune from attack would be 
to ignore both the language and purpose of the Four­
teenth and Fifteenth Amendments. The Supreme 
Court has frequently recognized that election schemes 
not otherwise subject to attack may be unconstitution­
al when designed and operated to discriminate against 
racial minorities.

Id. (footnote omitted).

We, like the Voter Information Court, are bound by 
the Supreme Court’s affirmance of Wells and its holding 
that the one person, one vote principle does not extend 
to the judicial branch of government. However, the dis­
trict court’s reliance on Wells in the instant case is mis­
placed as we are not concerned with a complaint seeking 
reapportionment of judicial districts on the basis of pop­
ulation deviations between districts. Rather, the complaint 
in the instant case involves claims of racial discrimination 
resulting in vote dilution under section 2 of the Voting 
Rights Act and the fourteenth and fifteenth amendments. 
Therefore, the district court erred to the extent it relied 
on Wells in support of its conclusion that section 2 does 
not apply to the judiciary.2

2. The distinction between equal protection principles appli­
cable to claims based on one person, one vote principles of 
apportionment and those based on racial discrimination is 
not without prior Supreme Court precedent. See White v. 
Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973) 
(Court reversed decision of district court that reapportion­
ment plan for Texas House of Representatives violated one 
person, one vote principles, but affirmed the district court's 
conclusion that a particular portion of the plan unlawfully

(C o n t in u e d  o n  f o l l o w in g  p a g e )



A p p .  1 6

The Voting Rights Act was enacted, in part, to facili­
tate the enforcement of the guarantees afforded by the 
Constitution. Indeed, section 2, as originally written, no 
more than elaborated on the fifteenth amendment, pro­
viding statutory protection consonant with that of the 
constitutional guarantee. Mobile, 446 U.S. at 60, 100 S.Ct. 
at 1496. Therefore, the reasoning utilized by the Court 
in Voter Information to extend the protection from racial 
discrimination provided by the fourteenth and fifteenth 
amendments to the judiciary compels a conclusion by this 
Court that the protection from racial discrimination pro­
vided by section 2 likewise extends to state judicial elec­
tions.

It is difficult, if not impossible, for this Court to con­
ceive of Congress, in an express attempt to expand the 
coverage of the Voting Rights Act, to have in fact amend­
ed the Act in a manner affording minorities less protec­
tion from racial discrimination than that provided by the 
Constitution. We conclude today that section 2, as amend­
ed in 1982, provides protection commensurate with the 
fourteenth and fifteenth amendments; therefore, in accord­
ance with this Court’s decision in Voter Information, sec­
tion 2 necessarily embraces judicial elections within its 
scope. Any other construction of section 2 would be whol­

(Continued from previous page)
diluted minority voting strength.). See also Gaffney v. Cum­
mings, 412 U.S. 735, 751, 93 S.Ct. 2321, 2330, 37 L.Ed.2d 298 
(1973) (“A districting plan may create multi-member districts 
perfectly acceptable under equal population standards, but 
invidiously discriminatory because they are employed 'to 
minimize or cancel out the voting strength of racial or po­
litical elements of the voting population.'") (citations omit­
ted).



A p p .  1 7

ly inconsistent with the plain language of the Act and 
the express purpose which Congress sought to attain in 
amending section 2; that is, to expand the protection of 
the Act.

B. The Legislative History of Section 2

Our conclusion today finds further support in the 
legislative history of the 1982 amendments to section 2. 
An overriding principle which guides any analysis of the 
legislative history behind the Voting Rights Act is that 
the Act must be interpreted in a broad and comprehensive 
manner in accordance with congressional intent to combat 
racial discrimination of any kind in all voting practices and 
procedures. Thus, in the absence of any legislative history 
warranting a conclusion that section 2 does not apply to 
state judicial elections, the only acceptable interpretation 
of the Act is that such elections are so covered. See Shef­
field, 435 U.S. 110, 98 S.Ct. 965.3

As previously noted, Congress amended section 2 
in direct response to the Supreme Court’s decision in Mo­
bile v. Bolden,

The Senate Report states that amended [section] 2
was designed to restore the “ results test”—the legal

3. In Sheffield, the Supreme Court declined to adopt a narrow­
ing construction of § 5 and the preclearance requirements of 
the Act whereby § 5 would cover only counties and political 
units that conduct voter registration. "[I]n view of the struc­
ture of the Act, it would be unthinkable to adopt the District 
Court's construction unless there were persuasive evidence 
either that § 5 was intended to apply only to changes affect­
ing the registration process or that Congress clearly mani­
fested an intention to restrict § 5 coverage. . . ." 435 U.S. 
at 122, 98 S.Ct. at 974.



A p p .  1 8

standard that governed voting discrimination cases 
prior to onr decision in Mobile v. Bolden. . . . Under 
the “ results test,” plaintiffs are not required to dem­
onstrate that the challenged electoral law or structure 
was designed or maintained for a discriminatory pur­
pose.

Thornburg v. Gingles, 478 TT.S. 30, 106 S.Ct. 2752, 2763 
n. 8, 92 L.Ed.2d 25 (1986) (citations omitted). In amend­
ing section 2, Congress preserved the operative language 
of subsection (a) defining the coverage of the Act and 
merely added subsection (b) to adopt the “ results test” 
for proving a violation of section 2. In fact, the language 
added by Congress in subsection (b)—“to participate in 
the political process and to elect representatives of their 
choice”—is derived almost verbatim from the Supreme 
Court’s standard governing claims of vote dilution on the 
basis of race set forth in White v. Regester, 412 U.S. 755, 
93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), prior to Mobile v. 
Bolden. See S.Rep.No. 417, 97th Cong., 2d Sess. 27, re­
printed in 1982 U.S. Code Cong. & Admin. News 177, 205 
(Congress’ stated purpose in adding subsection (b) was 
to “ embod[y] the test laid down by the Supreme Court 
in White.” ). In White, the Court stated “ [t]he plaintiffs’ 
burden is to produce evidence . . . that [the minority 
groups’] members had less opportunity than did other 
residents in the district to participate in the political pro­
cesses and to elect legislators of their choice.” Id. at 766, 
93 S.Ct. at 2339.4

4. It might be argued that since the Supreme Court used the 
term "legislators" and Congress chose "representatives," Con­
gress thereby rejected language limiting the coverage of § 2

(C o n t in u e d  o n  f o l l o w in g  p a g e )



A p p .  1 9

Further, contrary to the statement in the district 
court’s opinion that the legislative history of the 1982 
amendments does not address the issue of section 2 ap­
plying to the judiciary, Senator Orrin Hatch, in com­
ments contained in the Senate Report, stated that the 
term “ ‘political subdivision’ encompasses all governmental 
units, including city and county councils, school boards, 
judicial districts, utility districts, as well as state legis­
latures.” S.Rep. 417 at 151, 1982 U.S.Code Cong. & Ad­
min. News 323 (emphasis added). While the above state­
ment by Senator Hatch is not a definitive description of 
the scope of the Act, we believe the statement provides 
persuasive evidence of congressional understanding and 
belief that section 2 applies to the judiciary, especially 
since the Report is silent as to any dissent by senators 
from Senator Hatch’s description.

Additionally, the Senate and House hearings on the 
various bills regarding the extension of the Voting Rights 
Act in 1982 are replete with references to the election of 
judicial officials under the Act, The references primarily 
occur in the context of statistics presented to Congress 
indicating advances or setbacks of minorities under the 
Act. The statistics chart the election of minorities to 
various elected positions, including judges. See Extension 
of the Voting Rights Act: Hearings on H.R. 1407, II.R. 
1731, H.R. 2942, and H.R. 3112, H.R. 3198, H.R. 3473 and 
H.R. 3498 Before the Subcomm. on Civil and Constitu-

(Continued from previous page)
to legislators. The better analysis is that Congress did not 
use the term "representatives" with a specific intent to limit 
the section's application to any elected officials. Had Con­
gress wished to do so, it could have easily promulgated ex­
press language to effectuate that intent.



A p p .  2 0

tional Rights of the House Comm, on the Judiciary, 97th 
Cong. 1st sess. 38, 193, 239, 280, 503, 574, 804, 937, 1182, 
1188, 1515, 1528, 1535, 1745, 1839, 2647 (1981); Voting 
Rights Act: Hearings on 8 .  53, S. 1761, S. 1975, 8 .  1992, 
and H.R. 3112 Before the Subcomm. on the Constitution of 
the Senate Comm, on the Judiciary, 97th Cong.2d Sess. 
669, 748, 788-89 (1982). Once again, the legislative history 
does not reveal any dissent from, the proposition that such 
statistics were properly considered by Congress in amend­
ing the Act. Finally, throughout the Senate Report on 
the 1982 amendments to section 2, Congress uses the terms 
“ officials,”  “ candidates,”  and “ representatives”  inter­
changeably when explaining the meaning and purpose of 
the Act. This lack of any consistent use of the term “ rep­
resentatives”  indicates that Congress did not intentionally 
choose that term in an effort to exclude certain types of 
elected officials from the coverage of the Act.

In contrast to the examples of legislative history which 
plaintiffs cite in support of their position that section 2 
applies to state judicial elections, the State offers no con­
vincing1 evidence in the legislative history contrary to the 
plaintiff’s interpretation of the Act. Instead, the State 
relies primarily on the plain meaning of the word “ repre­
sentative”  to assert that judges are exempt from the Act. 
The State’s position is untenable.5 Judges, while not “ rep-

5. The State asserts that the Dole compromise prohibiting pro­
portional representation evidences congressional intent that 
§ 2 only apply to legislative officials. Proportional represen­
tation, the State continues, is relevant to the legislature; there­
fore, Congress intended § 2 to apply only to the election of 
legislators. However, what belies the State's argument is that

(C o n t in u e d  o n  f o l l o w in g  p a g e )



A p p .  21

resentatives”  in the traditional sense, do indeed reflect the 
sentiment of the majority of the people as to the individ­
uals they choose to entrust with the responsibility of ad­
ministering the law. As the district court held in Martin 
v. Attain:

[Jjudges do not. “ represent”  those who elect them in 
the same context as legislators represent their constitu­
ents. The use of the word “ representatives”  in Sec­
tion 2 is not restricted to legislative representatives 
but denotes anyone selected or chosen by popular elec­
tion from among a field of candidates to fill an. office, 
including judges.

658 F.Supp. at 1200.

C. Section 5 and Section 2

The plaintiffs further support their position that judi­
cial elections are covered by section 2 by citing to the 
recent case of Haith v. Martin, 618 F.Supp. 410 (E.D.N.C. 
1985), o f f  cl, 477 U.S. 901, 106 S.Ct. 3268, 91 L,Ed.2d 559 
(1986), wherein the district court held that judicial elec­
tions are covered by section 5 and the preclearance re­
quirements of the Act. In Haith, the defendant state offi-

(Continued from previous page)
proportional representation may occur in any election where­
in the people elect individuals to compromise a group. For 
instance, Louisiana elects seven Justices to comprise the Su­
preme Court. Certainly, the prohibition on proportional rep­
resentation in § 2(b) applies in such a situation to prevent a 
legal requirement that the number of blacks on the Louisiana 
Supreme Court correspond to the percentage of blacks in 
the Louisiana population. Moreover, the State conceded at 
oral argument that executive officials could be covered by 
§2, underlying their assertion that congressional fear of pro­
portional representation evidenced intent that § 2 only apply 
to the legislature.



A p p .  2 2

eials sought to exempt the election of superior court judges 
in North Carolina from the preclearance requirements of 
section 5 by relying on the cases holding that the one per­
son, one vote principle does not apply to the judicial branch 
of government. In an analysis strikingly similar to that 
employed by the Court in Voter Information, the district 
court in Haith rejected the defendants’ arguments as mis­
placed due to the fact that the plaintiff’s claim was one 
based on discrimination, not malapportionment. The 
Haith court stated “ [a]s can be seen, the Act applies to 
all voting without any limitation as to who, or what, is 
the object of the vote.”  618 F.Supp. at 413. See also 
Kirlcsey v. Attain, 635 F.Supp. 347, 349 (S.D.Miss.1986) 
(“ Given the expansive interpretation of the Voting Rights 
Act and § 5, this Court is compelled to agree with the pro­
nouncement in Haith v. Martin”  that section 5 applies to 
the judiciary.)

In the instant case, the State argues that the Supreme 
Court’s affirmance of Haith does not compel a conclusion 
that section 2 applies to judicial elections as section 5 in­
volves the mechanics of voting, while section 2 involves the 
fundamental right to vote for those who govern. We re­
ject this asserted distinction. If, for instance, Louisiana 
were to enact an election statute providing that no blacks 
would be able to vote in elections for Louisiana Supreme 
Court Justices, it is undisputed, after Haith, that such a 
statute would be invalidated under the preclearance re­
quirements of section 5. To hold, as the State asserts, that 
such an egregious statute would not be subject to the re­
quirements of section 2 as well would lead to the incon­
gruous result that, while Louisiana could not adopt such 
a statute in 1988, if that statute were in effect prior to



A p p .  2 3

1982, minorities could only challenge the statute under the 
Constitution and not the Voting* Rights Act, Such a result 
would be totally inconsistent with the broad remedial pur­
pose of the Act. Moreover, section 5 and section 2, vir­
tually companion sections, operate in tandem to prohibit 
discriminatory practices in voting, whether those prac­
tices originate in the past, present, or future. Section 5 
contains virtually identical language defining its scope to 
that of section 2—“ any voting qualification or prerequisite 
to voting, or standard, practice, or proceedure with respect 
to voting. . . . ”  Therefore, statutory construction, con­
sistency, and practicality point inexorably to the conclu­
sion that if section 5 applies to the judiciary, section 2 
must also apply to the judiciary. See Pampanga Mills v. 
Trinidad, 279 U.S. 211, 217-18, 49 S.Ct. 308, 310, 73 L.Ed. 
665 (1929).

D. The Attorney General’s Interpretation

In United States v. Sheffield Board of Commission­
ers, 435 U.S. at 131, 98 S.Ct, at 979, the Supreme Court 
concluded that the contemporaneous construction of the 
Act by the Attorney General is persuasive evidence of the 
original congressional understanding of the Act, “ es­
pecially in light of the extensive role the Attorney General 
played in drafting the statute and explaining its operation 
to Congress.”  Since its inception, the Attorney General 
has consistently supported an expansive, not restrictive, 
construction of the Act. Testifying at congressional hear­
ings prior to the passage of the Act in 1965, the Attorney 
General stated that “ every election in which registered 
voters are permitted to vote would be covered”  by the 
Act. Voting Rights: Hearing Before Subcomm. No. 5 of



A p p .  2 4

the House Judiciary Comm., 89th Cong. 1st Sess. (1965), 
at 21. See also Allen, 393 U.S. at 566-67, 89 S.Ct. at 832- 
33. Continuing the trend of broadly interpreting the Act 
to further its remedial purpose, the Attorney General has 
filed an amicus curiae brief in the instant case in which 
he maintains that the “ plain meaning of [the language in 
section 2] reaches all elections, including judicial elec­
tions”  and that the pre-existing coverage of section 2 was 
not limited by the 1982 congressional amendments. This 
construction of the Act by the Attorney General further 
bolsters our holding today that section 2 does apply to 
state judicial elections.

E. Plaintiffs’ Constitutional Claims

Plaintiffs also appeal the district court’s dismissal of 
their constitutional claims for failure to plead specific dis­
criminatory intent. In their complaint, plaintiffs allege, 
in pertinent part:

The defendant’s actions are in violation of the Four­
teenth and Fifteenth amendments to the United States 
Constitution and 42 U.S.C. Section 1983 in that the 
purposes and effect of their actions is to dilute, mini­
mize, and cancel the voting strength of the plaintiffs.

[2, 3] In the instant case, the district court, was cor­
rect in concluding that discriminatory purpose is a pre­
requisite to recovery under the fourteenth and fifteenth 
amendments. See Washington v. Davis, 426 U.S. 229, 239- 
41, 96 S.Ct. 2040, 2047-48, 48 L.Ed.2d 597 (1976). How­
ever, the district court erred in finding that plaintiffs’ 
complaint did not establish a theory of “ discriminatory 
intent.”  In Voter Information, this Court held that if 
“ plaintiffs can prove that the purpose and operative ef-



A p p .  2 5

feet of such purpose”  of the challenged electoral practices 
is to dilute minority voting strength, the plaintiffs are en­
titled to some form of relief. Voter Information, 612 F.2d 
at 212. When compared with the complaint in Voter In­
formation, the plaintiffs’ complaint in the instant case 
is sufficient to raise a claim of racial discrimination under 
the fourteenth and fifteenth amendments.6

III. CONCLUSION

Where racial discrimination exists, it is not confined 
to elections for legislative and executive officials; in such 
instance, it extends throughout the entire electoral spec­
trum. Minorities may not be prevented from, using section 
2 in their efforts to combat racial discrimination in the 
election of state judges; a. contrary result would prohibit 
minorities from achieving an effective voice in choosing 
those individuals society elects to administer and interpret 
the law. The right to vote, the right, to an effective voice 
in our society, cannot be impaired on the basis of race in

6. In Voter Information, the plaintiffs' complaint alleged,
25. The sole purpose of the present at-large system 

of election of City Judge is to ensure that the white majority 
will continue to elect all white persons for the office of 
City Judge.

26. The present at-large system was instituted when 
"Division B" was created as a reaction to increasing black 
voter registration and for the express purpose of diluting 
and minimizing the effect of the increased black vote.

27. In Baton Rouge, there is a continuing history of 
"bloc voting" under which when a black candidate opposes 
a white candidate, the white majority consistently casts 
its votes for the white candidate, irrespective of relative 
qualifications.

612 F.2d at 211.



A p p .  2 6

any instance wherein the will of the majority is expressed 
by popular vote.

For the reasons set forth above, we reverse the judg­
ment of the district court and remand for proceedings not 
inconsistent with this opinion.

REVERSED AND REMANDED.



A p p .  2 7

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No. 87-3463

RONALD CHISOM, MARIE BOOKMAN, WALTER 
WILLARD, MARC MORIAL, LOUISIANA VOTER 

REGISTRATION/EDUCATION CRUSADE and 
HENRY A. DILLON, III,

Plaintiff s-Appellants,
versus

EDWIN EDWARDS, in Ms capacity as Governor 
of the State of Louisiana, et ah,

Defendants-Appellees.

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

(May 27, 1988)
Before BROWN, JOHNSON, and HIGGINBOTHAM, 
Circuit Judges.

PER CURIAM:
The Petition for Rehearing is DENIED and no mem­

ber of this panel nor Judge in regular active service on 
the Court having requested that the Court be polled on 
rehearing en banc (Federal Rules of Appellate Proced­
ure and Local Rule 35), the Suggestion for Rehearing 
En Banc is DENIED. The Court further orders that 
the mandate shall issue forthwith,

ENTERED FOR THE COURT:
/s /  SAM D. JOHNSON 
United States Circuit Judge



A p p .  2 8

Ronald CHISOM, et al., 
v.

Edwin EDWARDS, et al.

Civ. A. No. 86-4075.
United States District Court,

E.D. Louisiana.
May 1, 1987.

As Amended July 10, 1987.
Class action suit was filed on behalf of all blacks regis­

tered to vote in Louisiana parish, challenging process of 
electing Louisiana Supreme Court justices for particular 
district. Defendants moved to dismiss. The District 
Court, Charles Schwartz, Jr., J., held that: (1) judges 
were not “ representatives”  within meaning of § 2 of Vot­
ing Rights Act, and (2) complaint did not sufficiently al­
lege intent to discriminate in violation of Fourteenth and 
Fifteenth Amendment.

Motion granted. 1

1. Elections 12(1)
Judges are not “ representatives”  within meaning of 

section of Voting Rights Act referring to right to elect 
representatives; by their very definition, judges do not 
represent voters but are appointed or elected to preside 
and to administer law. Voting Rights Act of 1965, § 2 et 
seq., 42 U.S.C.A. § 1973 et seq.

See publication Words and Phrases for other
judicial constructions and definitions.



A p p .  2 9

2. Civil Rights 13.12(3)
Elections 12(9)
Complaint lacked allegations required for claims of 

Fourteenth and Fifteenth Amendment violations from sys­
tem of election of state Supreme Court justices, where it 
did not allege that system was instituted with specific in­
tent to discriminate. U.S.C.A. Const.Amends. 14, 15.

William P. Quigley, Ron Wilson, Roy Rodney, New Or­
leans, La., C. Lani Guinier, Pamela S. Karlan, New York 
City, for plaintiffs.

William J. Guste, Jr., Atty. Gen. Eavelyn T. Brooks, 
Asst. Atty. Gen., Louisiana Dept, of Justice, M. Truman 
Woodward, Jr., Black (sic) G. Arata, A.R. Christovich, 
Moise W. Dennery, New Orleans, La., for defendants.

OPINION

CHARLES SCHWARTZ, Jr., District Judge.

This matter is before the Court on defendants’ motion 
to dismiss for failure to state a claim upon which relief can 
be granted pursuant to F.R.Civ.P. 12(b) (6). For the fore­
going reasons, defendants’ motion is GRANTED.

FACTS AND ALLEGATIONS

Ronald Chisom, four other black plaintiffs and the 
Louisiana Voter Registration Education Crusade filed this 
class action suit on behalf of all blacks registered to vote 
in Orleans Parish. Plaintiffs’ complaint challenges the 
process of electing Louisiana Supreme Court Justices from 
the First District of the State Supreme Court. The com-



A p p .  3 0

plaint alleges that the system of electing two at-large Su­
preme Court Justices from the Parishes of Orleans, St. 
Bernard, Plaquemines and Jefferson violates the 1965 Vot­
ing Rights Act, as amended, 42 U.S.C. § 1973 et seq., the 
fourteenth and fifteenth amendments to the United States 
Federal Constitution and, finally, 42 U.S.C. § 1983. Plain­
tiffs argue that the election system impermissibly dilutes, 
minimizes and cancels the voting strength of blacks who 
are registered to vote in Orleans Parish.

More specifically, plaintiffs’ original and amended 
complaint avers that the First Supreme Court District of 
Louisiana contains approximately 1,102,253 residents of 
which 63.36%, or 698,418 are white, and 379,101, or 34.4% 
are black. The First Supreme Court District has 515,103 
registered voters, of which 68% are white, and 31.61% 
are black. Plaintiffs contend that the First Supreme 
Court District of Louisiana should be divided into two 
single districts. Plaintiffs suggest that because Orleans 
Parish’s present population is 555,515 persons, roughly 
half the present First Supreme Court District, the most 
logical division is to have Orleans Parish elect one Su­
preme Court Justice and the Parishes of Jefferson, St. 
Bernard and Plaquemine together elect the other Supreme 
Court Justice. If plaintiffs’ plan were to be carried out, 
plaintiffs contend the present First Supreme Court Dis­
trict encompassing only Orleans Parish would then have a 
black population and voter registration comprising a ma­
jority of the district’s population. More specifically, 
plaintiffs assert presently 124,881 of the registered voters 
in Orleans are white, comprising 47.9% of the plaintiffs’ 
proposed district’s voters; while 134,492 of the registered 
voters in Orleans are now black, comprising 51.6% of the



A p p .  3 1

envisioned district’s voters. The other district comprised 
of Jefferson, Plaquemines and St. Bernard parishes and 
would have a substantially greater white population than 
black, according to plaintiffs’ plan.

Plaintiffs seek class certification of approximately 
135,000 black residents of Orleans Parish, whom plaintiffs 
allege suffer from diluted voting strength as a result of 
the present at-large election system. Additionally, plain­
tiffs seek a preliminary and permanent injunction against 
the defendants restraining the further election of Justices 
for the First Supreme Court District until this Court 
makes a determination on the merits of plaintiffs’ chal­
lenge. Further, plaintiffs seek an order requiring defen­
dants to reapportion the First Louisiana Supreme Court 
in a manner which ‘ ‘ fairly recognizes the voting strengths 
of minorities in the New Orleans area and completely rem­
edies the present dilution of minority voting strength.”  
(Plaintiffs’ Complaint, p. 7). Plaintiffs also seek an or­
der requiring compliance with the Voting Bights Act and, 
finally, a declaration from this Court that the Supreme 
Court election system violates the Voting Bights Act and 
the fourteenth and fifteenth amendments to the Federal 
Constitution.1

Defendants do not dispute the figures presented by 
plaintiffs in their amended complaint. Instead, they con­

1. Plaintiffs, earlier, sought a three judge court to hear this 
complaint which was denied by this Court as the terms of 
28 U.S.C. § 2284 provide for a three judge court when the 
constitutionality of the apportionment of congressional dis­
tricts or the apportionment of any statewide legislative body 
is challenged. Nowhere does § 2284 provide for convening 
a three judge court when a judicial apportionment is chal­
lenged.



A p p .  3 2

tend that section 2 of the Voting Eights Act of 1965, as 
amended, the fourteenth and fifteenth amendments to the 
United States Federal Constitution and 42 U.S.C. §. 1983 
fail to provide plaintiffs grounds upon which relief can he 
granted for plaintiffs’ allegation of diluted black voting 
strength.

SECTION 2 OF THE VOTING RIGHTS ACT OF 1965 
DOES NOT APPLY TO THE INSTANT ACTION

Prior to 1982, section 2 of the Voting Eights Act (42 
U.S.C. ■§ 1973), “ Denial or Abridgement of Eights to Vote 
on Account of Race or Color Through Voting Qualifica­
tions or Prerequisites,”  read as follows:

No voting qualification or prerequisite to voting, or 
standard, practice, or procedure, shall be imposed or 
applied by any State or political subdivision to deny 
or abridge the right of any citizen of the United States 
to vote on account of race or color, or in contravention 
of the guarantees set forth in section 1973(b) (f) (2) 
of this title.

Section 2 of the Voting Eights Act was amended as a re­
sponse to City of Mobile, Alabama v. Bolden, 446 U.S. 55, 
100 S.Ct. 1490, 64 L.Ed. 47 (1980), in which the Supreme 
Court in a plurality opinion held to establish a violation 
of section 2 of the Voting Eights Act, minority voters must 
prove the contested electoral mechanism was intentionally 
adopted or maintained by state officials for a discrimina­
tory purpose. After Bolden, Congress in 1982 revised sec­
tion 2 to make clear that a violation of the Voting Eights 
Act could be proven by showing a discriminatory effect or 
result alone. United States v. Marengo County Commis­
sion, 731 F.2d 1546 n. 1 (11th Cir. 1984), appeal dismissed,



A p p .  33

cert, denied, 469 U.S. 976, 105 S.Ct. 375, 83 LEd.2d 311 
(1984).2 Section 2, as amended, 96 Stat. 134, now reads:

(a) No voting qualification or prerequisite to voting 
or standard, practice, or procedure shall be imposed or 
applied by any State or political subdivision in a man­
ner which results in a denial or abridgement of the 
rights of any citizen of the United States to vote on 
account of race or color, or in contravention of the 
guarantees set forth in section 1973b(f)(2), as pro­
vided in subsection (b) of this section.
(b) A  violation of subsection (a) is established if, 
based on the totality of the circumstances, it is shown 
that the political processes leading to nomination for 
election in the State or political subdivision are not 
equally open to participation by members of a class of 
citizens protected by subsection (a) of this section in 
that its members have less opportunity than other 
members of the electorate to participate in the political 
process and to elect representatives of their choice. 
The extent to which members of a protected class have 
been elected to office in the State or political subdivi­
sion is one circumstance which may be considered: 
Provided, that nothing in this section establishes a 
right to’ have members of a protective class elected in 
numbers equal to their proportion in the population. 
42 U.S.C. § 1973 (emphasis added).

Prior to the 1982 amendments to section 2, a three- 
judge court composed of Judges Ainsworth, West and Gor­
don, headed by Judge West, addressed a voting rights 
claim arising out of the same claims of discrimination as

2. See S.Rep. 97-417, 97 Cong.2d Sess (1982) pp. 15-43, U.S. 
Code Cong. & Admin.News 1982, p. 177, for a complete dis­
cussion of Congress' intent to overturn the section 2 "pur­
poseful discrimination" requirement imposed by Mobile v. 
Bolden.



in this case, albeit not in a section 2 context, Wells v. Ed­
wards, 347 F.Supp. 453 (MD.La.1972), aff’d, 409 U.S. 1095, 
93 S.Ct. 904, 34 L.Ed.2d 679 (1973). In Wells, a registered 
black voter residing in Jefferson Parish, brought suit seek­
ing a reapportionment of the judicial districts from which 
the seven judges of the Supreme Court of Louisiana are 
elected. Ms. Wells sought an injunction enjoining the 
state from holding the scheduled Supreme Court Justice 
elections and an order compelling the Louisiana Legisla­
ture to enact an apportionment plan in accordance with the 
‘ ‘ one man, one vote ’ ’ principle and to reschedule the pend­
ing election. On cross motions for summary judgment, the 
three-judge court stated, “ We hold that the concept of 
one-man, one vote apportionment does not apply to the 
judicial branch of government,”  342 F.Supp. at 454. The 
Wells court took notice of Hadley v. Junior College Dis­
trict, 397 U.S, 50, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970), in 
which the Supreme Court held, “ Whenever a state or local 
government decides to select persons by popular election 
to perform governmental functions, the equal protection 
clause of the fourteenth amendment requires that each 
qualified voter must be given an equal opportunity to par­
ticipate in that election. . . .” , 90 S.Ct. 791, 795 (emphasis 
added), but distinguished its holding by outlining the spe­
cial functions of judges.

The Wells court noted many courts’ past delineations 
between elected officials who performed legislative or ex­
ecutive functions and judges who apply, but not create, 
law3 and concluded:

A p p .  3 4

3. See, e.g., Stokes v. Fortson, 234 F.Supp. 575 (N.D.Ga.1964) 
("Manifestly, judges and prosecutors are not representative

(Continued on following page)



‘ Judges do not represent people, they serve people.’ 
Thus, the rationale behind the one-man, one-vote prin­
ciple, which evolved out of efforts to preserve a truly 
representative form of government, is simply not rele­
vant to the makeup of the judiciary.

347 F.Supp. at 455.

The Wells opinion interpreted the “ one man one 
vote”  principle prior to the 1982 amendments to section 2, 
which added the phrase, “ [T]o elect representatives of 
their choice.” 4 See emphasis in quotation 42 U.S.O. 1973, 
supra.) The legislative history of the 1982 Voting* Bights 
Act amendments does not yield a definitive statement not­
ing why the word “ representative”  was added to section 
2. However, in this case, no such statement is necessary, 
as “ to elect representatives of their choice”  is clear and 
unambiguous.

[1] Judges, by their very definition, do not represent 
voters but are “ appointed [or elected] to preside and to 
administer the law.” Black’s Law Dictionary, 1968. As 
statements by Hamilton in the Federalist, No. 78 reflect, 
the distinction between Judge and representative has long- 
been established in American legal history:

A p p .  3 5

(Continued from previous page)
in the same sense as they are legislators or the executive. 
Their function is to administer the law, not to espouse a 
cause of a particular constituency"); Holshouser v. Scott, 335
F.Supp. 928 (D.D.C.1971) ("We hold that the one man, one 
vote rule does not apply to state judiciary. . . ."); Buchanan 
v. Rhodes, 249 F.Supp. 860 (N.D.Ohio1966) ("Judges do not 
represent people, they serve people"); New York State Assn, 
of Trial Lawyers v. Rockefeller, 267 F.Supp. 148, 153 (S.D.N.Y. 
1967) ("The state judiciary, unlike the legislature, is not the 
organ responsible for achieving representative government.")

4. This language did not appear in section 2 at the time of 
the Wells opinion.



A p p .  3 6

I f it be said that the legislative body are themselves 
the constitutional judges of their own powers, and that 
the construction they put upon them is conclusive upon 
the other departments, it may be answered, that this 
cannot be the natural presumption, where it is not to 
be collected from any particular provisions in the con­
stitution. It is not otherwise to be supposed that the 
constitution could intend to enable the representatives 
of the people to substitute their will to that of their 
constituents. It is far more rational to suppose that 
the courts were designed to be an intermediate body 
between the people and the legislature, in order, among 
other things, to keep the latter within the limits as­
signed to their authority. The interpretation of the 
laws is the proper and peculiar province of the courts.

Indeed, our Federal Constitution recognizes the in­
herent difference between representatives and judges by 
placing the federal judiciary in an entirely different cate­
gory from that of other federal elective offices. It is note­
worthy that articles 1 and 2, which establish Congress and 
the Presidency, are lengthy and detailed, while Article 3, 
which establishes the judiciary, is brief and free of direc­
tion, indicating the judiciary is to be free of any instruc­
tions. Today, Fifth Circuit jurisprudence continues to 
recognize the long established distinction between judges 
and other officials. See, e.g., Morial v. Judiciary Com­
mittee of State of Louisiana, 565 F.2d 295 (5th Cir.1977) 
en banc, cert, denied, 435 IT.S. 1013, 98 S.Ct. 1887, 56 L.Ed. 
2d 395 (1978). (See also Footnote 1, supra.)

The legislative history of the Voting Bights Act 
Amendments does not address the issue of section 2 apply­



A p p .  3 7

ing to the judiciary,5 indeed, most of the discussion con­
cerning the application of the Voting Eights Act refers to 
legislative offices. Nevertheless plaintiffs ignore the his­
torical distinction between representative and judge and 
the lack of any discernible legislative history in their favor 
and argue that the Voting Eights Act is a broad and reme­
dial measure which must be extended to cover judicial elec­
tion systems.6 Plaintiffs rely principally on Haith v. Mar­

'S. The Chairman of the Senate Judiciary Committee's Subcom­
mittee on the Constitution, Senator Orrin Hatch, in voicing 
his strong opposition of the Legislative reversal of Bolden 
through the section 2 revisions, made a brief reference to 
section 2 applying to judicial elections:

Every political subdivision in the United States would be 
liable to have its electoral practices and procedures eval­
uated by the proposed results test of section 2. It is im­
portant to emphasize at the onset that for the purposes of 
Section 2, the term "political subdivision" encompasses all 
governmental units, including city and county councils, 
school boards, judicial districts, utility districts, as well as 
state legislatures.

S.Rep, 97-417, 97 Cong.2d Sess. 127, 151, reprinted in 1982 
U.S.Code Cong. & Admin.News 298, 323.
Although Senator Hatch's comment indicates coverage of 
judicial districts by the Voting Rights Act, the purpose of the 
above passage was to illustrate Senator Hatch's belief that 
the impact of the section 2 Amendments' "results test" would 
be far ranging and in his opinion, detrimental. Senator 
Hatch's comments were included at the end of the Senate 
report usually reserved for dissenting Senators. The above 
passage did not portend to be a definative or even a mod­
erately detailed description of the coverage of the Voting 
Rights Act, nor does Senator Hatch provide any authority 
for his suggestion of the potential scope of section 2. Rather, 
this Court finds that the passage was meant to be argumenta­
tive and persuasive, and not as a means to define actual scope 
of the Act.

6. See e.g., United Jewish Organization of Williamsburg, Inc. 
v. 'Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977)

(Continued on following page)



A p p .  3 8

tin, 618 F.Supp. 410 (D.N.C.1985) (three-judge court), 
aff’d, without opinion, 106 S.Ct, 3268, 91 L.Ed.2d 559 
(1986) for the proposition that this Court should ignore 
Wells v. Edwards, supra, and apply section 2 to the allega­
tions contained in their complaint.* 7 In Haith, the district 
court held that judicial election systems are covered by 
section 5 of the Voting Rights Act, which requires pre- 
clearance by the U.S. Justice Department of any voting 
procedures changes in areas with a history of voting dis­
crimination. Plaintiffs, in essence, argue that because the 
Supreme Court, without opinion, affirmed the Haith dis­
trict court in its application of section 5 to judicial elec­
tions, this Court should expand the holding of Haith to 
include section 2 of the Voting Rights Act. Plaintiffs’ 
argument fails because section 5 does not specifically re­
strict its application to election systems pertaining to rep­
resentatives, a restriction included in the 1982 amendments 
to section 2.

Although a potential conflict may develop between the 
holdings in Wells and Haith, Wells clearly states the “ one

(Continued from previous page)
("It is apparent from the face of the Act, from its legislative 
history, and from our cases of the Act itself was broadly re­
medial in the sense that it 'was designed by Congress to ban­
ish the blight of racial discrimination in voting . . 430
U.S. at 156, 97 S.Ct. at 1005; South Carolina v. Katzenback, 383 
U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966) (The Voting Rights 
Act "reflects Congress' firm intention to rid the country of 
racial discrimination in voting"), 383 U.S. at 315, 86 S.Ct. at 
811.

7. Plaintiffs also rely on Kirksey v. Allian, 658 F.Supp. 1153 
(S.D.Ms.1987), in which a district court dismissed the reason­
ing in Wells, and held section 2 does apply to the elected 
judiciary. Wells,  ̂ supra, has precedential authority and clearly 
conflicts with Kirksey, an untested lower court opinion.



A p p .  3 9

man one vote ’ ’ principle is not applicable to judicial elec­
tions. This Court recognizes the long standing principle 
that the judiciary, on all levels, exists to interpret and 
apply the laws, that is, judge the applicability of laws in 
specific instances. Representatives of the people, on the 
other hand, write laws to encompass a wide range of situ­
ations. Therefore, decisions by representatives must occur 
in an environment which takes into account public opinion 
so that laws promulgated reflect the values of the rep­
resented society, as a whole. Judicial decisions which in­
volve the individual or individuals must occur in an en­
vironment of impartiality so that courts render judgments 
which reflect the particular facts and circumstances of dis­
tinct cases, and not the sweeping and sometimes undisci­
plined winds of public opinion.

PLAINTIFFS’ FOURTEENTH AND FIFTEENTH 
AMENDMENT CLAIMS FAIL TO STATE A CLAIM 
UPON WHICH RELIEF CAN BE GRANTED AS 
PLAINTIFFS DO NOT PLEAD DISCRIMINATORY 
INTENT

The appropriate constitutional standard for estab­
lishing a violation of the fourteenth amendment in the con­
text of voting rights is “ purposeful discrimination.”  Vil­
lage of Arlington Heights v. Metropolitan Housing Gorp., 
429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) ;8 Mc- 
Millian v. Escambia City, Fla., 688 F.2d 960 (5th Cir.

8. In Village of Arlington Heights v. Metropolitan Housing 
Corp., purposeful discrimination was held the standard neces­
sary to establish a violation of the fourteenth amendment 
where plaintiff claimed a village rezoning decision was racial­
ly discriminatory.



A p p .  4 0

1982).9 Similarly, City of Mobile, Alabama v. Bolden, su­
pra, requires a court to establish a finding of discrimina­
tory purpose before declaring a fifteenth amendment vio­
lation of voting rights.10

In Voter Information Project, 612 F.2d 208 (5th Cir. 
1980), a panel composed of Judges Jones, Brown and Rubin 
(opinion by Judge Brown) held a suit that alleged the 
at-large scheme for electing city judges in Baton Rouge 
invidiously diluted the voting strength of black persons in 
violation of the fourteenth and fifteenth amendments to

9. In McMillian v. Escambia City, Fla., the Fifth Circuit held 
the Arlington Heights' "purposeful discrimination" standard 
is appropriate in fourteenth amendment voter discrimination 
claims.

10. Although there is a conflict between the requirement of 
"discriminatory effect" in Section 2, which is intended to 
enforce the fifteenth amendment, and the requirement of 
"purposeful discrimination" for a fifteenth amendment viola­
tion standing alone, the Senate Judiciary Committee addressed 
this point and recognized Congress' limited ability to adjust 
the burden of proving Voting Rights Violations in its "Voting 
Rights Act Extension" Committee Report.

Certainly, Congress cannot overturn a substantive in­
terpretation of the Constitution by the Supreme Court. Such 
rulings can only be altered under our form of government 
by constitutional amendment or by a subsequent decision 
by the Supreme Court.

Thus Congress cannot alter the judicial interpretations 
in Bolden of the fourteenth and fifteenth amendments by 
simple statute. But the proposed amendment to Section 
2 does not seek to reverse the court's constitutional inter­
pretation.

S.Rep. 97-417, 97 Cong.2d Sess. (1982), p. 41, U.S.Code Cong. 
& Admin.News 1982, p. 219. The Supreme Court, the only 
body empowered to interpret the Federal Constitution, has 
not seen fit to overrule its repeated determination that the 
fourteenth and fifteenth amendments claims require "pur­
poseful discrimination."



A p p .  4 1

the United States Federal Constitution, and 42 U.S.C. 
§ 1983, could not be dismissed when the complaint alleges 
purposeful discrimination. At the trial level. Judge West 
relied on his reasoning in Wells, supra, that the one man, 
one vote principle did not apply to the elections of judges, 
and dismissed plaintiffs’ suit. Judge Brown reversed, 
holding that the “ one man, one vote”  principle as es­
poused in Wells, supra, was not enough to dismiss plain­
tiff ’s complaint. The Voter Information Court found:

The problem with the District Court’s opinion, how­
ever, is that it assumes the “ one man, one vote”  prin­
ciple was the exclusive theory of plaintiff’s complaints. 
In addition to a rather vaguely formulated 4 ‘ one man, 
one vote”  theory, plaintiffs contend that both in de­
sign and operation, the at-large schemes dilute the 
voting strength of black citizens and prevent blacks 
from being elected as judges. As the complaint at­
tacking the city judge election system alleges:

25. The sole purpose of the present at-large sys­
tem of election of City Judge is to insure that the 
white majority will continue to elect all white per­
sons for the offices of City Judge.
26. The present at-large system was instituted 
when “ Division B ”  was created as a reaction to 
increasing black voter registration and for the 
express purpose of diluting and minimizing the 
effect of the increased black vote.
27. In Baton Bouge, there is a continuing history 
of “ bloc voting-”  under which when a black can­
didate opposes a white candidate, the white ma­
jority consistently casts its votes for the white 
candidate, irrespective of the relative qualifica­
tions.

Plaintiffs contend that since most of the black popu­
lation of Baton Bouge and E. Baton Bouge Parish is 
concentrated in a few geographic areas, black citizens



A p p .  4 2

could, under a single member district plan, elect at 
least some black judges.

612 F.2d at 211.

The Voter Information Project Court held the plain­
tiff’s complaint contained sufficient allegations of inten­
tional discrimination against black voters to survive a 
motion to dismiss: “ If plaintiffs can prove that the pur­
pose and operative effect of such purpose of the at-large 
election schemes in Baton Rouge is to dilute the voting 
strength of black citizens, then they are entitled to some 
form of relief.”  612 F.2d at 212. Thus, the Voter Infor­
mation Project requires that “ purpose and operative ef­
fect”  be pled in a fourteenth and. fifteenth amendment 
challenge to a judicial apportionment plan.

[2] The complaint in the instant case states, in per­
tinent part:

Because of the official history of racial discrimina­
tion in Louisiana’s First Supreme Court District, the 
wide spread prevalence of racially polarized voting 
in the district, the continuing effects of past discrimi­
nation on the plaintiffs, the small percentage of minor­
ities elected to public office in the area, the absence of 
any black elected to the Louisiana Supreme Court from 
the First District, and the lack of any justifiable rea­
son to continue the practice of electing two Justices 
at-large from the New Orleans area only, plaintiffs 
contend that the current election procedures for se­
lecting Supreme Court justices from the New Orleans 
area dilutes minority voting strength and therefore 
violates the 1965 Voting Rights Act, as amended.

(See Plaintiffs’ Complaint, p. 5). Later on, the Complaint 
alleges:



A p p .  4 3

The defendants’ actions are in violation of the Four­
teenth and Fifteenth Amendment to the United States 
Constitution and 42 U.S.C. § 1983 in that the purpose 
and effect of their actions is to dilute, minimize, and 
cancel the voting strength of the plaintiffs.

{Id., p. 6.)

Although “ purpose and effect”  language in the second 
quotation above broadly read may imply plaintiffs ’ inten­
tion to plead discriminatory intent, it is this Court’s con­
sidered opinion, based on the complaint as a whole, that 
plaintiffs intend to prove this claim based on a theory of 
“ discriminatory effect”  and not on a theory of “ discrim­
inatory intent.”  City of Mobile Alabama v. Bolden, 
supra. For example, plaintiffs’ complaint does not al­
lege the system by which the Louisiana Supreme Court 
Justices are elected was instituted with specific intent to 
discriminate. This contrasts with the specific allegations 
in Voter Information Project, supra. Accordingly, plain­
tiffs lack the requisite allegations in order to prove a vio­
lation of the fourteenth or fifteenth amendment to the 
Federal Constitution. The Court reserves the right for 
plaintiffs to reurge its fourteenth and fifteenth amend­
ment claims as they relate to the Court’s ruling that plain­
tiffs’ complaint only alleges “ discriminatory effect.”

Accordingly, unless plaintiffs’ complaint is amended 
within ten (10) days of the date of entry of this opinion, 
the Clerk of Court is directed to enter judgment DISMISS­
ING plaintiffs’ claim at their cost.



A p p .  4 4

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No. 88-3492

RONALD CHISOM, ET AL.,

versus
Plaintiffs-Appellees,

BUDDY ROEMER, ET AL.,
D ef endants-App ellant s.

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

(August 19, 1988)
Before CLARK, Chief Judge, GARZA and POLITZ, Cir­

cuit Judges.

POLITZ, Circuit Judge:

On August 3, 1988, following an expedited appeal, we 
vacated the preliminary injunction issued by the district 
court which had enjoined the election of a justice of the 
Louisiana Supreme Court from the First Supreme Court 
District, and ordered that “ said election shall he con­
ducted in accordance with the laws of the State of Louisi­
ana at the times and in the manner specified therein. ’ ! Con­
sistent with a reservation then made, we now assign our 
reasons for that decision.



App. 45

Background

On September 19, 3986 complainants, black registered 
voters in Orleans Parish, Louisiana, and an organization 
active in voting-rights issues, filed the instant suit, alleg­
ing that the present system of electing two justices to the 
Louisiana Supreme Court from the First Supreme Court 
District violates section 2 of the Voting Eights Act of 1965 
as amended.1 Their complaint was met with a motion to 
dismiss under Buie 12(b) (6) of the Federal Rules of Civil 
Procedure, which the court granted, essentially based on 
the conclusion that section 2 did not apply to judicial elec­
tions.1 2 On appeal we reversed and remanded.3

After an application for panel rehearing and for a 
rehearing en banc was declined, the case was returned to 
the district court. Thereafter, complainants applied for a 
preliminary injunction to prevent the election scheduled 
for October 1, 1988 of a justice from the First Supreme 
Court District, a position held by Justice Pascal F. Calo- 
gero, Jr. since 1972.4 Based on the evidence presented5

1. 42 U.S.C. § 1973, as amended June 29, 1982, 96 Stat. 134. 
The complaint also alleges violations of the fourteenth and fif­
teenth amendments but only section 2 of the Voting Rights Act 
is involved in the preliminary injunction.
2. 659 F.Supp. 183 (E.D.La. 1987). The court dismissed the con­
stitutional claims for failure of allegations of discriminatory in­
tent.
3. 839 F.2d 1056 (5th Cir. 1988). All claims were reinstated.
4. justice Calogero is the ranking Supreme Court justice, in 
terms of service, second only to Chief Justice John A. Dixon, Jr.
5. As observed by a member of this panel during oral argu­
ment, defendants made little attempt to offer evidence or other

(Continued on following page)



A p p .  4 6

the district judge concluded that the election should be en­
joined. Defendants appealed and sought a stay pending 
appeal, Fed.R.App.P. 8. A divided motions panel of this 
court expedited the appeal and stayed the injunction to 
the extent it related to the qualifying activities of candi­
dates. As noted, after hearing the expedited appeal this 
merits panel vacated the remainder of the preliminary in­
junction.

Factual Context

The thoughtful and comprehensive opinion of the trial 
court, which gleans the sparse record and reaches out and 
takes judicial notice of other relevant judicially-found 
facts,6 reveals the following scenario.

The Supreme Court of Louisiana is composed of “ a 
chief justice and six associate justices, four of whom must 
concur to render judgment,”  who are elected for ten-year 
terms.7 The justices are elected from six Supreme Court 
districts, all of which are single-member districts except 
the First Supreme Court District which elects two jus­
tices,8 a tradition dating back more than a century. The

(Continued from previous page)
assistance to the trial court's efforts to decide the very difficult 
and serious issues presented by the application for a prelim­
inary injunction.
6. Notably, the congressional redistricting case involving New 
Orleans and environs, brought pursuant to section 2 of the Vot­
ing Rights Act of 1965 as amended, Major v. Treen, 574 F.Supp. 
325 (E.D.La. 1983) (three-judge court), a case in which a great 
volume of evidence, vigorously tested by the adversarial pro­
cess, was presented to the court.
7. La. Const, of 1974, Art. 5, § 3.
8. La. Const, of 1974, Art. 5, § 4 (incorporating La. Const, of 
1921, Art. 7, § 9); La. R.S. 13:101.



A p p .  4 7

districts and the number of justices assigned to each are 
“ subject to change by law enacted by two-thirds of the 
elected members of each house of the legislature. ” 9

The First Supreme Court District is largely composed 
of the metropolitan New Orleans area and includes four 
parishes: Orleans, Jefferson, St. Bernard, and Plaque­
mines. This district is the largest in population, with a 
1980 census total of 1,102,253. The next largest Supreme 
Court district has a 1980 census population of just over 
861,000, while the smallest contains approximately 411,000 
Louisianans. The average of the five other districts, using 
1980 census figures, is 620,729.

In 1980, the most recent data available to the trial 
court, the four parishes in the First Supreme Court Dis­
trict had the following population distribution:

Voter registration data as of March 31, 1987 reflected 
the following totals and percentages of black voters:

As the trial court found, at present blacks comprise a 
majority of the total population, the voting-age popula­
tion, and the registered voters in Orleans Parish. Orleans

Orleans 
Jefferson 
St. Bernard 
Plaquemines

557,515 (55.25% black)
454,592 (13.89% black)
64,097 ( 3.73% black)
26,049 (21.12% black)

Orleans 
Jefferson 
St. Bernard 
Plaquemines

251,359 (52.4% black)
199,534 (11.9% black)
40,086 ( 3.9% black)
15,198 (18.6% black)

9. La. Const, of 1974, Art. 5, § 4.



A p p .  4 8

Parish constitutes just over one-half of the total popula­
tion of the First Supreme Court District.

The trial court concluded that complainants had satis­
fied the tetrad test for issuance of a preliminary injunc­
tion which was synthesized, although not originated, in the 
oft-cited case of Canal Authority of Florida v. Callaivay, 
489 F.2d 567, 572 (5th Cir. 1974), by showing:

(1) a substantial likelihood that plaintiff will pre­
vail on the merits;

(2) a substantial threat that plaintiff will suffer irre­
parable injury if the injunction is not granted;

(3) that the threatened injury to plaintiff outweighs 
the threatened harm the injunction may do to de­
fendant; and

(4) that granting the preliminary injunction will not 
disserve the public interest.

Analysis

Inasmuch as our decision is powered by a considera­
tion of the essence and ramifications of the third and 
fourth factors, we pretermit a discussion of the first two, 
except for these limited comments. It remains to be seen 
whether the complainants will prevail on the merits, in­
deed the Supreme Court has yet to speak on the critical 
issue whether section 2 of the Voting Rights Act applies 
to judicial elections. And we can only speculate as to the 
state of the record in this ease after trial on the merits.

As to irreparable injury, complainants urge a black- 
letter, per se rule to the effect that if an electoral stan­
dard, practice, or procedure abridges section 2 of the Vot­
ing Rights Act it automatically does irreparable injury to



A p p .  4 9

all or a portion of the body politic. Some district courts 
would agree. See Dillard v. Crenshaw County, 640 F.Supp. 
1347 (M.D.Ala. 1986) ; Harris v. Graddick, 593 F.Supp. 
128 (M.D.Ala. 1984); Cook v. Duckett, 575 F.Supp, 479 
(S.D.Miss. 1983). We do not. We are not prepared to 
adopt a per se rule in such a vital area of state-federal re­
lations. While we recognize and are in full accord with 
the teachings of the Supreme Court in Reynolds v. Sims, 
377 TLS. 533, 555 (1964), that “ [t]he right to vote freely 
for the candidate of one’s choice is of the essence of a 
democratic society and any restrictions on that right strike 
at the heart of representative government. And the right 
of suffrage can be denied by a debasement or dilution of 
the weight of a citizen’s vote1 just as effectively as by 
wholly prohibiting the free exercise.”  We are also cog­
nizant that “  ! [t]he possibility that . . . other corrective 
relief will be available at a later date, in the ordinary 
course of litigation, weighs heavily against a claim of 
irreparable harm.’ ”  Sampson v. Murray, 415 U.S. 61, 
70, 945 S.Ct. 937, 39 L.Ed.2d 166 (1974) {quoting Vir­
ginia Petrolexim Jobbers Assn. v. FPC, 104 U.S.App.D.C. 
106, 110, 259 F.2d 921, 925 (1958)). In this we agree 
with the commentators who1 suggest that ” [o]nly when 
the threatened harm would impair the court’s ability to 
grant an effective remedy is there really a need for pre­
liminary relief.”  Wright, Miller & Kane, Federal Prac­
tice and Procedure § 2948 at 431-34 (1973).

Should the election be enjoined?

Assuming per arguendo that there has been a prima 
facie showing of likelihood of success on the merits, and 
irreparable injury, our disposition of this appeal turns on



A p p .  5 0

a negative response to tlie question: Does the public in­
terest require that this election be enjoined? Would such 
an injunction be in the best interests o f : all of the citi­
zens of the State of Louisiana; the citizens of the First 
Supreme Court District; the black citizenry of Louisiana; 
that of the First Supreme Court District; or the black 
electorate of Orleans Parish? We are persuaded beyond 
peradventure that the answer must be a resounding* “ no”  
on behalf of all of these groupings of Louisianians.

Our analysis begins with the staunch admonition that 
a federal court should jealously guard and sparingly use 
its awesome powers to ignore or brush aside long-standing 
state constitutional provisions, statutes, and practices. 
There can be no doubt that under the Supremacy Clause,10 
federal courts do and indeed must have this authority in 
our unique form of government. It is the use of this power 
that must be maintained in the balance, a balance which 
is more delicate than usual when a state’s judicial process 
is involved.

It cannot be gainsaid that federal courts have the 
power to enjoin state elections. Watson v. Commissioner’s 
Court of Harrison County, 616 F.2d 105 (5th Cir. 1980); 
Hamer v. Campbell, 358 F.2d 215 (5th Cir.), cert, denied, 
385 U.S. 851 (1966). But, “ intervention by the federal 
courts in state elections has always been a serious busi­
ness,” Oden v. Brittain, 396 U.S. 1210 (1969) (Black, J., 
opinion in chambers), not to be lightly engaged in. Indeed, 
even after an adjudication on the merits that a legislative 
apportionment plan violated the Constitution, the Supreme 
Court invited the use of a velvet glove over the mailed fist:

10. Constitution, Art. VI.



A p p .  5 1

In awarding or withholding immediate relief, a court 
is entitled to and should consider the proximity of a 
forthcoming election and the mechanics and complex­
ities of state 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.

Reynolds v. Sims, 377 U.S. at 5850. Sims has been the 
guidon to a number of courts that have refrained from en­
joining impending elections. In another instance, the Su­
preme Court stayed a district court’s hand after a three- 
judge court found Indiana’s multi-member districting pro­
visions unconstitutional. Whitcomb v. Chavis, 396 U.S. 
1055 and 396 U.S. 1064 (1970) (granting a stay pending 
appeal, 305 F.Supp. 1359, 1364 (S.D.Ind. 1969)). See also 
Maryland Citizens v. Governor of Maryland, 429 F.2d 606 
(4th Cir. 1970) ; Dillard v. Crenshaw County; Ranks v. 
Bd. of Ed., City of Peoria, 659 F.Supp. 394 (C.D.I11. 1987); 
Knox v. Milwaukee County, 581 F.Supp. 399 (E.D.Wis. 
1984).

We consider significant the Supreme Court’s aetion 
in Chavis. In staying the reapportionment plan ordered by 
a three-judge court, the Supreme Court permitted the con­
duct of an election under the old scheme which had been 
found constitutionally infirm. In dissenting from the re­
fusal to vacate their stay order, Justice Douglas pointedly 
stated: “ The State contends that without a stay it will 
be forced to conduct the forthcoming election under the 
reapportionment plan of the District Court. By granting



A p p ,  5 2

the stay, however, this Court has equally forced the ap­
pellees to go through the election under the present scheme 
which was held unconstitutional by the District Court.” 
396 U.S. 1064. Nonetheless the court permitted the election 
to proceed.

The case at bar

Against this backdrop we consider the realities of the 
case at bar. The district court concluded that the issuance 
of an injunction would either be neutral, in ultimate re­
sult, or preferable to not enjoining the election. We do 
not find the court’s reasoning persuasive. To the extent 
this is a factual finding by the trial court, we view it as 
clearly erroneous; to the extent it is a conclusion of law, 
we view it as erroneous.

Preventing this judicial election at this late stage is 
not a passive or neutral act. It is the proverbial gossamer- 
thin veil which is fraught with difficulties. The conse­
quences to Louisiana’s judicial system are as significant 
as they are uncertain. Indeed, the very uncertainties in­
troduced account in large measure for the significance of 
the impact.

The core value of the law and its implementing ju­
dicial system is stability—the ability reasonably to antici­
pate the results of actions and proceedings, by individ­
uals and by legal institutions. Staying the election for 
a justice of the First Supreme Court District casts a cloud 
over the Louisiana Supreme Court, as staying any ju­
dicial election would cast a cloud over the affected court. 
The Louisiana Constitution provides that the terms of 
the justices of its supreme court are ten years. The term 
of Justice Calogero expires on December 31, 1988. If the



A p p .  5 3

regularly scheduled election did not go forward, would 
Louisiana have seven justices on its highest court on Jan­
uary 1, 19891 If the election is enjoined and Justice Calo- 
gero continues to serve, will there be any question about 
the validity of his actions as a justice!

The Louisiana Constitution prescribes that four jus­
tices must concur to render judgment. Decisions in both 
civil and criminal cases decided on a 4-3 basis are not a 
rarity. The sparse offerings by the state in defense of the 
application for the preliminary injunction include the af­
fidavit of the Director of the Louisiana Supreme Court’s 
Central Staff of attorneys. He advises that since 1976 the 
Louisiana Supreme Court has reviewed 82 death penalty 
appeals. In 30 of those appeals the conviction was re­
versed or the death sentence was vacated. Twenty per­
cent of those reversals were decided on a 4-3 vote. The 
record does not contain statistics for 4-3 renditions in 
civil cases, or in the denial of writs of certiorari or review, 
which require the agreement of four justices,11 but the 
number undoubtedly is very substantial. One need only 
thumb through a selective sampling of the Southern Re­
porter Second series for a feel of just how substantial 
that number is. What is the consequence if Justice Calo- 
gero is one of the four! Is an uncertainty introduced!

Does the general statutory provision declaring that 
public officers hold their offices until their successors are

11. La. Const, of 1974, Art. 5, § 3.



A p p .  5 4

“ inducted into office” 12 apply in this instance? Our re­
search reflects no case in which the Louisiana Supreme 
Court has applied this statute to a justice or judge. Until 
Louisiana’s highest court resolves this question it remains 
just that, an open question and, as such, it casts a shadow 
on the functioning of the Louisiana Supreme Court.

Appellees and the trial court refer to the provision of 
the Louisiana Constitution which addresses the temporary 
posting of judicial vacancies. Article 5, § 22, provides that 
until a vacancy in a judicial office is filled “ the supreme 
court shall appoint a person meeting the qualifications for 
the office . . .  to serve at its pleasure. The appointee shall 
be ineligible as a candidate at the election to fill the va­
cancy. ”  Id. '§ 22(B). If the election is enjoined, after 
midnight on December 31, 1988 is the post now held by 
Justice Calogero to be deemed vacant and subject to an 
appointment by his former-fellow justices! Because of 
the involvement of the federal court, and its preventing 
of the election, would this be a vacancy subject to appoint­
ment! If it is deemed such and Justice Calogero accepts 
an appointment, would he be eligible to seek reelection to 
the judicial post he has held since 1972 when the federal 
court did permit an election to proceed! More shadows 
on the otherwise clear patina of the Louisiana judicial 
system. Are such warranted! Can they be justified or 
permitted !

12. La. R.S. 42:2 provides:
Every public officer in this state except in case of 

impeachment or suspension, shall continue to dis­
charge the duties of his office until his successor is 
inducted into office.



A p p .  5 5

Further, in Article 5, § 6, the Louisiana Constitution 
establishes that “ [t]he judge oldest in point of service on 
the supreme court shall be chief justice.”  Justice Calogero 
currently is second in point of service to the chief justice. 
If the election is enjoined and his office is deemed vacant, 
should he not be offered, or should he decline an appoint­
ment out of caution for the Article 5, § 22(B) proscrip­
tion; if he is reelected, would his service have been inter­
rupted so as to cause a forfeiture of his claim to be oldest 
in point of service ?

Finally, what about the litigants during this period? 
What will be the racial demographics of that group? Will 
they be affected adversely? Will that effect be signifi­
cant? Can it be justified?

Appellees suggest that the specter of problems with 
and for the Louisiana Supreme Court are manageable. 
The trial court states: “ Regardless of the state consti­
tutional provisions, this Court has in any event the power 
under the Supremacy Cause to fashion both preliminary 
and final equitable relief that will both provide plaintiffs 
with a full and adequate remedy and protect other im­
portant state interests.”  Is this a suggestion that the 
chancellor will appoint a successor to Calogero, perhaps 
Calogero, and, out of a sense of fair play, decree that all 
state constitutional questions as to his service are to be 
taken for naught, that the proscription against his run­
ning for the office is nullified, and, further, order that no 
one may suggest a break in his service for purposes of 
eligibility for the office of chief justice? Is such neces­
sary? Should the federal court even contemplate that 
scenario? We are most reluctant to do so.



A p p .  5 6

Were we to countenance such a scenario, other inter­
ests would be disserved. As the Dillard court recognized, 
the extension of the terms of incumbents or the court’s 
appointment of replacements, effectively denies “ the en­
tire electorate the right to vote and thus seem to offend 
basic principles. . . . ”  Dillard, 640 F.Supp. at 1363. See 
also, Banks, 659 F.Supp. at 402 (“ enjoining the . . . elec­
tion would have the effect of preventing all of the voters 
in the respective election districts from exercising their 
right to vote.. . . ” ).

How long would this disenfranchisement of all of the 
voters of the First Supreme Court District continue? As 
discussed infra, this case must run its full course, and, 
thereafter, assuming violations are found, the Louisiana 
Legislature must be afforded an opportunity to repair the 
defects the court discloses. Is the electorate to have no 
say whatever as to the person to serve during that period ? 
Can that conceivably be considered in the best interests 
of the citizenry?

In addition to the foregoing caution to the use of in­
junctive powers before trial on the merits, and indeed 
even after trial on the merits, we are also keenly mindful 
of another well-established rubric which must be brought 
to bear in the resolution of the present conundrum. It is 
now established beyond challenge that upon finding a par­
ticular standard, practice, or procedure to be contrary to 
either a federal constitutional or statutory requirement, 
the federal court must grant the appropriate state or local 
authorities an opportunity to correct the deficiencies. In 
Reynolds v. Sims the Supreme Court commended the dis­
trict court for refraining from enjoining an impending



A p p .  5 7

election until the Alabama Legislature had been given 
an opportunity to remedy the defects in their legislative 
apportionment scheme. 377 U.S. at 586. Further, after 
trial on the merits, and a declaration that an existing 
election scheme is unlawful, it is “ appropriate, whenever 
practicable, to afford a reasonable opportunity for the 
legislature to meet constitutional [or federal statutory] 
requirements by adopting a substitute measure rather 
than for the federal court to devise and order into effect 
its own plan.”  Wise v. Lipscomb, 437 U.S. at 540. See 
also McDaniel v. Sanchez, 452 U.S. 130, 150 n.30 (1981) 
(“ Moreover, even after a federal court has found a dis­
tricting plan unconstitutional, ‘ redistricting and reappor­
tioning legislative bodies is a legislative task which the 
federal courts should make every effort not to pre­
empt,’ ”  quoting Wise v. Lipscomb). The court goes on 
to cite authorities for the proposition that the legislatures 
should first be given a chance, and quoting Reynolds v. 
Sims, the Sanchez court noted that “ judicial relief be­
comes appropriate only when a legislature fails to re­
apportion according to federal constitutional requisites 
in a timely fashion after having had an adequate oppor­
tunity to do so.”  452 U.S. at 150 n.30) ; Connor v. Finch, 
431 U.S. 407 (1977); Major v. Treen.

As found by the district court, the Louisiana Legis­
lature has signaled no reluctance to address this matter. 
When this court held that section 2 applied to judicial 
elections, remedial legislation was offered and seriously 
considered in the just-recessed legislative session. This 
legislature gives every indication of promptly responding 
to a need for action should it occur.



A p p .  5 8

We understand these precedents to mandate that the 
responsible state or local authorities must be first given 
an opportunity to correct any constitutional or statutory 
defect before the court attempts to draft a remedial plan. 
In the case at bar, that means that should the court rule 
on the merits that a statutory or constitutional violation 
exists the Louisiana Legislature should be allowed a rea­
sonable opportunity to address the problem. We have no 
reason whatsoever to doubt that the governor and legis­
lature will respond promptly. Such was the experience 
in the epilogue to Major v. Treen.

In the interim, we are convinced that the system in 
place for the election of the subject judicial officer should 
be left undisturbed. There are a number of variables and 
several contingencies. But notwithstanding their final 
alignment, at the appropriate time, should it become neces­
sary, the federal courts may fashion whatever remedy the 
law, equity, and justice require.

The preliminary injunction is VACATED and it is 
ordered that the presently scheduled election for justice 
of the First Supreme Court District of Louisiana pro­
ceed in accordance with the laws of Louisiana.