Correspondence from Bradford Reynolds to Heenan McGuan

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GILBERT F. GANUCHEAU 
CLERK 

• 
Pniteb States (gime of Meals 

FIFTH CIRCUIT 

OFFICE OF THE CLERK 

July 26, 1988 

MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW: 

No. 88-3492 - CHISOM, ET AL. vs. ROEMER, ET AL. 

(DC No. CA-86-4075A) 

The following action has been taken in the above case: 

AN EXTENSION OF TIME has been granted to and including 

0 for 
0 for 

0 for 

o for 

El 

filing 

filing 

filing 

filing 

appellant's/petitioner's brief. 

appellee's/respondent's brief. 

reply brief. 

petition for rehearing. 

TEL. 504-589-6514 
600 CAMP STREET 

NEW ORLEANS. LA 70130 

ED Motion to consolidate granted. 
o Motion to supplement or correct the record granted. 
0 Motion for leave to file supplemental brief granted. 

0 Motion for leave to file brief amicus curiae is granted. 
0 Joint motion as to time for filing briefs granted. 

ED Order enclosed has been entered. 

E3 ORDERS ENCLOSED HAVE BEEN ENTERED. 
GILBERT F. GANUCHEAU, Clerk 

cc and enclosures to: 
Judge Charles Schwartz, Jr. 
Mrs. Loretta G. Whyte, Clerk 
ALL COUNSEL OF RECORD 

By:  6,419, ), dsAeL,  
Deputy Clerk 

MOT-2 



IN THE UNITED STATES COURT OF APPEAig IC°URT:OEAPPEAr.s 
FILED 

JUL26 1968 
FOR THE FIFTH CIRCUIT 

No. 88-3492 GUIs" ANUCHEAU_ 

#USDC#88-3492 

RONALD CHISOM, ET AL., 

versus 

BUDDY ROEMER, ET AL., 

Plaintiffs-Appellees, 

Defendants-Appellants. 

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

Before JOHNSON, GARWOOD and JOLLY, Circuit Judges. 

BY THE COUR T: 

IT IS ORDERED that appellants' motion for stay pending 

appeal is GRANTED to the extent, and it is ORDERED, that the 

preliminary injunction is hereby stayed insofar only as it may 

prohibit actions taken or to be taken during or prior to the July 

27 through July 29, 1988, qualifying period for the election in 

question. In all other respects, appellants' request for stay 

pending appeal is referred to the merits panel without action 

thereon by this motions panel. Should the merits panel wholly or 



partially reverse or stay the preliminary injunction, nothing in 

this order shall prevent the merits panel, should it deem such 

action on its part to be appropriate, from requiring (or 

conditioning its stay or reversal on) the State to conduct an 

additional qualifying period at which additional candidates may 

qualify for the election in question. 

does not have before it the record below. A 

panel concludes that if the preliminary injunction 
The panel 

majority of the 

is not now stayed insofar only 

qualification period, 

hold and the issue of 

may be in substance 

appellate review. On 

view that 

qualification 

appellees. 

connection. 

preliminary 

as it relates (if it does) to the 

the scheduled election may be impossible to 

the correctness of the preliminary injunction 

mooted, without an opportunity for adequate 

the other hand, the panel majority is of the 

staying the preliminary injunction as to the 

period only cannot prejudice the plaintiffs-

There are only two possible alternatives in this 

If the merits panel affirms, or fails to stay, the 

there will be no election, and plaintiffs-

be prejudiced by the preliminary injunction 

as to the qualification period. The only other 

is that the merits panel will stay or reverse the 

injunction, in which event it must be assumed that the 

merits panel will have correctly determined that the election 

as scheduled; in that situation qualification 

injunction, 

appellees could not 

having been stayed 

alternative 

preliminary 

should go forward 



• 

should likewise proceed, as no one has suggested any reason for 

holding that the election is proper but the qualification 

procedures are not. 



JOHNSON, Circuit Judge, dissenting. 

I respectfully dissent from the panel majority's decision to 

stay that portion of the district court's preliminary injunction as 

it relates to actions taken or to be taken during or prior to the 

July 27-29, 1988, qualifying period for the October election of the 

First Supreme Judicial 
Louisiana Supreme Court Justice from the 

District. As found by the district court, there is at this time 

compelling evidence which indicates that the present electoral 

scheme for electing the Louisiana Supreme Court Justice from the 

First District dilutes minority voting strength in violation of 

Section 2 of the Voting Rights Act of 1965. Based on this 

evidence, the district court stayed the October election in the 

First District. 

To secure a stay of the district court's order enjoining the 

October election, the State of Louisiana is required to demonstrate 

before this Court a likelihood of success on the merits of their 

appeal of the injunction, irreparable injury in the event a stay is 

not granted, that the granting of a stay will not significantly 

harm other parties, and that a stay will serve the public 

interest. Fortune V. Molpus, 431 F.2d 799, 804 (5th Cir. 1970). 

The above prerequisites to a stay of the injunction of the October 

election apply with equal force to a stay of the injunction as it 

relates to the July qualifying period. Today, with absolutely no 

evidence before it that the above requirements have been satisfied, 

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the panel majority negates that portion of the district court's 

stay as it relates to the qualification period for the October 

election. Because of the prejudice resulting from the panel 

majority's action to minority plaintiffs, to potential candidates 

for the October election and to the entire voter population, I 

disagree with the panel majority's decision. 

Initially, it should be noted that in the language of the 

Supreme Court "a filing period cannot be considered in isolation 

from the election of which it forms a part." NAACP v. Hampton 

County Election Commission, 470 U.S. 166, 177 (1985). See also 

South Carolina v. United States, 585 F. Supp. 418 (D.D.C. 1984) 

(candidate filing period was enjoined where it was unclear whether 

the election would be conducted pending preclearance of election 

procedures under Section 5 of the Voting Rights Act). In the 

instant case, the qualifying period and the October 1988 election 

itself are inextricably intertwined since potential candidates 

necessarily decide whether to seek elected office and whether to 

satisfy qualifying requirements based on their perception of their 

likelihood of success in the election. See Hampton, 470 U.S. at 

177 ("Potential candidates who considered the opening of the filing 

period illegal" because of objection to propriety of electoral 

scheme "may have deliberately stayed away."); McMillan v. Escambia 

County, 748 F.2d 1037, 1045 (5th Cir. 1984) (The lack of black 

candidates for elected offices chosen pursuant to at-large 

-5-



electoral system is a "likely result of a racially discriminatory 

system."). It appears that there are now only two viable 

candidates for the position on the Louisiana Supreme Court which is 

to be filled by the October 1988 election. Both of these 

candidates are white. In this regard, the district court 

specifically found that "no potential candidate with a broad base 

of support from the Orleans Parish black voting community is 

presently intending to run for the upcoming election because of a 

perception of doomed defeat." Most assuredly, an implicit finding 

within the district court's injunction of the election itself is a 

finding that the reason these potential candidates are deterred is 

a perception of minority voter dilution -- a perception now 

reinforced and solidified by the district court's prima facie 

finding that the plaintiffs are likely to succeed on the merits of 

their voter dilution claim. Indeed, the State of Louisiana 

presented virtually no evidence to challenge, either legally or 

factually, the district court's conclusion that plaintiffs are 

likely to prevail on their Section 2 claim. 

The majority of this panel has seen fit to set aside the 

injunction issued by the district court and to permit the 

qualifying period in July to proceed. The qualifying period begins 

tomorrow, July 27, 1988, and ends July 29, 1988. Should this Court 

later overturn the district court's stay of the October election, 

it is relatively certain that only two candidates will be found to 



have previously qualified (during the July 27-29, 1988, period) for 

the election in October. Both of these will be white. The 

resulting prejudice to the minority plaintiffs is that blacks will 

have once again been deprived of the opportunity to meaningfully 

participate in the election of a Louisiana Supreme Court Justice in 

the First District because blacks were previously deterred (up to 

and through July 27-29, 1988) from seeking to qualify for the 

election in that district due to the perception of doomed defeat 

resulting from the present electoral scheme. As the Supreme Court 

has stated: 

The interests involved are not merely those of 
parties or individual candidates; the voters can 
assert their preferences only through candidates 
or parties or both and it is this broad interest 
that must be weighed in the balance. The right  
of a party or an individual to a place on a  
ballot is entitled to protection and is 
intertwined with the rights of voters. 

Lubin V. Parish, 415 U.S. 709, 716 (1974) (emphasis added). 

It is grossly unfair and prejudicial to all potential 

candidates for the October election to permit the qualification 

process to proceed at this time when in fact the October election 

may never occur. As noted by a potential candidate' for the 

October election in an amicus curiae brief to this Court, it is 

particularly unfair to expect candidates to expend the large sums 

1. The potential candidate, Darleen Jacobs, describes 
herself thusly, "Mover is not a plaintiff in this cause, nor is a 

member of plaintiff's class." 



• 

of money and energy necessary to effectively campaign for a 

position on the Louisiana Supreme Court in an atmosphere imbued 

with confusion and uncertainty among the voters created by the 

knowledge that the October election is currently enjoined. 

Finally, it should be noted that the Attorney General of the 

United States, as amicus curiae2 in the instant case, maintains 

that the district court's injunction of the October election 

should not be partially stayed (as to the qualification period) 

by this panel. In this regard, the Attorney General notes that 

"since the ultimate disposition of the claims will, in all 

likelihood, not be in appellants' [the State's] favor, the 

partial stay would require candidates in effect to begin 

campaigns twice, thus unfairly depleting their resources." 

In sum, compelling evidence demonstrates that minority 

plaintiffs, that potential candidates for the October election, 

and that the entire voter population will be severely prejudiced 

by the panel majority's negating the district court's injunction 

and authorizing the qualification process in July to proceed for 

what appears to be only two white candidates. It should be noted 

that the panel majority's order makes it certain that the 

majority's action was taken blindly without the "record below." 

2. It is noted that the Government's amicus brief recites, 
"The United States has prepared the papers for and intends to 
file a motion to intervene as a plaintiff in the district court 

in the coming week." (emphasis added). 

-8-



S 

Nevertheless, without that record, the panel majority attempts to 

suggest that, having negated the district court's injunction as 

to the qualification period, there are only two possible 

alternatives, neither of which have any possible negative impact 

on prospective minority candidates for the position in 

question. In truth the negative impact is made certain is 

totally assured by the panel majority's action: it is beyond 

question that no one may be elected to this office without having 

first qualified for the office; yet today's action by the panel 

majority limits and circumscribes those who may qualify. That 

defined and limited class is completely devoid of individuals of 

the group (minority candidates) sought to be protected by the 

issuance of the district court's injunction; indeed, is totally 

devoid of those sought to be protected by the Voting Rights Act 

itself. 

Accordingly, I dissent from the majority's action in lifting 

the district court's stay as it relates to the qualifying period 

for the October election. 



• 

IN THE UNITED STATES COURT OF APPEALASiCFOURTMAPpars 

FOR THE FIFTH CIRCUIT i" 13 
JUL 2 

No. 88-3492 IE. ANUCHEAU 
CLUtd 

USDC #CA 86-4075 A 

RONALD CHISOM, ET AL., 

versus 

BUDDY ROEMER, ET AL., 

Plaintiffs-Appellees, 

Defendants-Appellants. 

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

ORDE R: 

IT IS ORDERED that the motion of Darleen M. Jacobs for leave 

to file a brief as amicus curiae in the form tendered is GRANTED. 

/s/WILL GARWOOD 

WILL GARWOOD 
UNITED STATES CIRCUIT JUDGE 



IN THE UNITED STATES COURT OF APPEALS 
it.COURT; CIE APPEALS 

FOR THE FIFTH CIRCUIT 

No. 88-3492 

USDC #CA 86-4075 A 

RONALD CHISOM, ET AL., 

versus 

BUDDY ROEMER, ET AL., 

FILED 

JUL 2 6 z:8 

ounR-T, E. CAANUCHEAU 
et.ERn 

Plaintiffs-Appellees, 

Defendants-Appellants. 

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

Before JOHNSON, GARWOOD and JOLLY, Circuit Judges. 

BY THE COUR T: 

IT IS ORDERED that the motion of appellees to assign the 

appeal to the original hearing panel is DENIED, in light of this 

panel's order of July 20, 1988. Judge Johnson notes his dissent to 

this order. 

IT IS FURTHER ORDERED that the request of the District Court 

for remand for the limited purpose of allowing it to amend its 

opinion is referred to the merits panel. 



UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

OFFICE OF THE CLERK 

600 CAMP STREET 

NEW ORLEANS, LOUISIANA 70130 

OFFICIAL BUSINESS 

PENALTY FOR PRIVATE USE 6300 

• 

P(1Pft 

1111 29 1988 
JLi U- 1:3-

C. Lani Guinier, Esq. 
Pamela S. Karlan, Esq. 
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New York, NY 10013 

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UNITED STATES COURTS 

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