Roemer v Chisom Brief of Amici Curiae in Support of Petitioners

    No. 88-327

In  T h e

Supreme Court oi tfce
OCTOBER TERM, 1988

BUDDY ROEMER, et al.,

vs.
Petitioners,

RONALD CHISOM, et al.,
Respondents.

O n  p e t it io n  f o r  W r it  o f  C e r t io r a r i  t o  t h e  U n it e d  
St a t e s  Co u r t  o f  A p p e a l s  f o r  t h e  F if t h  C ir c u it

Brief A mici Curiae for the States of 
Texas, Arkansas, Florida, Georgia, 

Illinois, and North Carolina 
in Support of Petitioners

Jim Mattox
Attorney General of Texas 
Mary F. Keller 
First Assistant Attorney General 
renea Hicks*
Special Assistant Attorney General 
Javier Guajardo 
Assistant Attorney General

P.O. Box 12548, Capitol Station 
Austin, Texas 78711-2548 
(512) 463-2025

October 21,1988 Attorneys for Amici Curiae
* Attorney of Record

(Additional Amici Curiae Counsel Listed in Appendix)



TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE....................   1
SUMMARY OF ARGUMENT........ .........   2
ARGUMENT............... .............................................4

I. The 1982 Amendment to the Voting
Rights Act....................................................4

II. The Shortcomings of the Chisom
Court's Analysis.........................   6
A. The Plain Language ............    7

1. The Plain Meaning Rule................7
2. The Clear Statement Rule ............11
3. The Statutory Amendment

Rule............................................... 11
B . The Legislative History......................12
C. Senator Hatch's Comment............14
D. Section 5 and Section 2 ......................15
E . The Attorney General's Role............. 16

III. Significant Protections Remain................17

CONCLUSION........................................................18

APPENDIX............................................................. A-l



11

TABLE OF AUTHORITIES

Cases Page

American Tobacco Co. v. Patterson,
456 U.S. 63 (1 9 8 2 ) .... . . . . . . . . . . . . . . . . . . . . . . . . . . .1 2

Atascadero State Hospital v. Scanlon,
473 U.S. 234 (1985)...................... . . . . . . . . . . .1 1

Bureau o f Alcohol, Tobacco and Firearms v.
Federal Labor Relations Authority,
464 U.S. 89 (1983).................... ..16

Burns v. Alcala, 420 U.S. U.S. 575 (1975)......... 9
Chisom v. Edwards, 839 F.2d 1056

(5th Cir. 1988).....................  .....passim
Chisom v. Roemer, 853 F:,2d 1186

(5th Cir. 1988)..........  2
Chrysler Corp. v. Brown, 441 U.S. 281

(1979) . . . . . . . . . . . . . . . ............ . . . . . . . . . . . . . . . . . . . .1 4
City o f Mobile v. Bolden, 446 U.S. 55

(1980) . . . . . . . . . . . . . . . . . . . ......   .....4 ,13 ,17
Connor v. Finch, 431 U.S. 407 (1977)............. 10
Davis v. Bandemer, 478 U.S. 109 (1986)........ .10
Forrester v. White, 108 S.Ct. 538 (1988)..............8
Haith v. Martin, 618 F.Supp. 410

(E.D.N.C. 1985), affd  mem..,
106 S.Ct. 3268 (1986)........... ..........13,15,17

Hatten v. Rains, 854 F.2d 687
(5th Cir. 1 9 8 8 )...............  8

Holshouser v. Scott, 335 F.Supp. 928 
(M.D.N.C. 1971), affd  
409 U.S. 807 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  7

Holtzman v. Schlesinger, 414 U.S. 1304
(1 9 7 3 ) .. . . . . . . . . . . . . . . . . . .........   14

INS v. Cardoza Fonseca, 107 S.Ct. 1207
(1 9 8 7 ) .............................................. . . . . . . . . .7 ,9

Lake County v. Rollins, 130 U.S. 662
(1 8 8 9 ) .. . . . . . . . . . . . . . . . . . ..............   7

Lane County v. Oregon, 7 Wall. 71 (1869).....  1
Michigan v. Long, 463 U.S. 1032 (1983).......... 2



Mitchum v. Foster, 407 U.S. 225 (1972)............ 11
Perrin v. United States, 444 U.S. 37 (1979)........ 7
Quern v. Jordan, 440 U.S. 332 (1979)................ 13
Regan v. Wald, 468 U.S. 222 (1984)................... 15
Rodriguez v. United States, 107 S.Ct. 1391

(1987).................................................................10
Russello v. United States, 464 U.S. 16

(1983)..................................................................11
Securities Industry Ass'n v. Board o f Governors 

of the Federal Reserve System,
468 U.S. 137 (1984).....................   16

South Carolina v. Katzenbach, 383 U.S. 301
(1966)...........  4,17

Thornburg v. Gingles, 106 S.Ct. 2752
(1986)...................................................... ......... 5,6

Trainor v. Hernandez, 431 U.S. 434 (1977).......... 2
United States v. Board of Commissioners of

Sheffield, 435 U.S. 110 (1978).......................17
United States v. Dickerson, 310 U.S. 544

(1940)................................................................11
United States v. Locke, 471 U.S. 84

(1985).......    14
Watt v. Alaska, 451 U.S. 259 (1981)......................7
Wells v. Edwards, 347 F.Supp. 453 

(M.D. La. 1972), affd mem.,
409 U.S. 1095 (1973)..........  9

White v. Regester, 412 U.S. 755 (1913)......passim
Younger v. Harris, 401 U.S. 37 (1971)................. 2

Statutes:

15 U.S.C. § 3 8 1 ................................. '.................... 8
29 U.S.C. § 1 5 2 ..........    8
39 U.S.C. § 3005......................................     8
42 U.S.C. § 1973(a)...................................................5
42 U.S.C. § 1973(b)........................................  5
45 U.S.C. § 151 ........................................................ 8
46 U.S.C. § 1244 .................     8

ill



Miscellaneous:

BLACK'S LAW DICTIONARY
(abridged 5th ed. 1983)...................... 7

R. DICKERSON, THE INTERPRETATION AND
A p p l ic a t io n  o f  St a t u t e s  (1975).......... . 7

S. Rep. No. 417, 97th Cong., 2d Sess., . . . . . . .9 , 13
SUBCOMM. ON THE CONSTITUTION OF THE

Senate Comm, on the Judiciary, 97th 
Cong., 2d Sess., report on the voting 
RIGHTS Act......................................

Sup. Ct . r . 36.4.......................................... .
13
..1



IN T E R E S T  O F  AM IC I  CURIAE

The Attorneys General of the amici curiae States of 
Texas, Arkansas, Florida, Georgia, Illinois, and North 
Carolina, see Appendix, sponsor this brief, pursuant to 
Supreme Court Rule 36.4, to bring to the attention of the 
Court an issue of significant and potentially disruptive 
impact on state judiciaries.

In Chisom v. Edwards, 839 F.2d 1056, 1064 (5th Cir. 
1988) ("Chisom"), the decision from which Louisiana 
petitions for a writ of certiorari, the Fifth Circuit held that 
section 2 of the Voting Rights Act "does apply to state 
judicial elections." The Chisom decision casts a cloud of 
uncertainty over the forty-two states that have either judicial 
elections or judicial retention election systems. See 
Louisiana's Petition For A Writ of Certiorari, at 10-11. 
Already, at least six section 2 suits have been filed 
challenging the judiciaries of Alabama, Georgia, Illinois, 
Mississippi, and Texas. The Illinois suit encompasses 201 
state judges, Louisiana's Petition, at 8-9, and a Texas suit, 
206 judges.

Only a definitive statement from this Court determining 
whether the Chisom principle is correct can remove the cloud 
of uncertainty and permit the states to order their affairs 
under clearly discernible governing legal principles. To 
remove all doubt, the Court should grant certiorari and 
decide whether the principle enunciated by the Chisom court 
is correct. If the Court does not act, however, premature 
remedies pursuant to Chisom could unnecessarily disrupt the 
forums where the majority of this Nation's lawsuits are tried: 
elected state trial courts.

Quick action also is necessary to maintain the delicate 
balance in this important area of state-federal relations. State 
governments, in our constitutional scheme, act as 
independent political communities with the authority to make 
important decisions of self-governance. See, e.g., Lane 
County v. Oregon, 7 Wall. 71, 76 (1869). Perhaps no 
incidents of state self-governance are more central to 
concerns of federalism than the preservation of the integrity



2

of state law and the protection of the institutional autonomy 
of state judiciaries. See, e.g., Michigan v. Long, 463 U.S. 
1032 (1983); Younger v. Harris, 401 U.S. 37 (1971). As 
the Court has noted, "in a Union where both the States and 
the Federal Government are sovereign entities, there are 
basic concerns of federalism which counsel against 
interference by federal courts, through injunctions or 
otherwise, with legitimate state functions, p a rticu la rly  
w ith the opera tion  of s ta te  courts ."  Trainor v. 
Hernandez, 431 U.S. 434, 441 (1977) (emphasis added).

Indeed, the recent Fifth Circuit decision in Chisom v. 
Roemer, 853 F.2d 1186, 1188-89 (5th Cir. 1988) ("Chisom 
II"), illustrates the urgent need for this Court's action and 
guidance. The Fifth Circuit in Chisom II vacated the district 
court's preliminary injunction enjoining the election of a 
justice of the Louisiana Supreme Court partly on the basis 
that "the Supreme Court has yet to speak on the critical issue 
whether section 2 of the Voting Rights Act applies to judicial 
elections!,]" and because it did not want to unnecessarily 
intrude upon an important area of state-federal relations such 
as a "state's judicial process."

The issue presented here could fundamentally alter 
state courts, a bedrock institution in our society of laws. A 
decision now by the Court clarifying the reach of section 2 is 
necessary to prevent undue interference with the operation of 
state courts and to provide guidance to federal courts 
struggling or soon to be struggling with Chisom-generated 
questions.

SUMMARY OF ARGUMENT

The Chisom  holding that judicial elections are 
covered by section 2 of the Voting Rights Act sets in motion 
events that soon will cascade into an avalanche of litigation 
seeking to change the way state judiciaries are elected. The 
litigation will be complex and time-consuming. It could 
result in court-ordered reconfiguration of several states' 
judicial systems and Implementation of the novel concept of 
electing judges from single member districts.



3

States need to know now from the Court whether 
their current judicial election systems are going to be 
measured by a results test in a vote dilution claim under the 
Voting Rights Act. Only then will the states be able to 
assess their election systems in the clear light of the law and 
determine with some degree of certainty the proper response 
to anticipated, threatened, or actual litigation. Some may 
choose to reconfigure without a lawsuit or trial, while others 
may choose to litigate the issue. All states, though, at least 
will know the ultimate evidentiary standards and what proof 
must be offered.

While there admittedly is no conflict in the circuits on 
the Chisom principle, the issue is too important and the state 
judiciary too critical an institution for the Court to await 
further judicial developments before settling the question. It 
is a straightforward issue of statutory construction, 
ultimately hinging on the meaning of a single word, 
"representatives." '

The Fifth Circuit's analysis was too facile to 
definitively settle the question analytically, transgressing 
elementary principles of statutory construction in reaching its 
conclusion. The plain, commonly understood meaning of 
"representatives" cannot be said to include judges. If 
Congress had meant to take the major step of subjecting a 
major state institution to new federal standards (as the Fifth 
Circuit has now decided Congress did) surely there would 
have been at least a modicum of debate on the matter. There 
was none at all. Plain language aside, this Congressional 
silence suggests that the thunderous step really was not taken 
and, therefore, that the Fifth Circuit was wrong.

Before state judiciaries are subjected to major 
alterations, before attorney fees mount, and before lengthy 
trials begin, the states urge the Court to settle the controlling 
legal principle and tell them the basic standard by which they 
are to be judged.



4

ARGUM ENT

I .  The 1982 A m endm ent to the Voting R ights
Act

Congress under the aegis of the Fifteenth Amendment 
enacted the Voting Rights Act of 1965 ("1965 Act"), to 
"banish the blight of racial discrimination in voting." South 
Carolina v, Katzenhach, 383 U S, 301, 308 (1966). The 
heart of the 1965 Act consisted of specific remedies to break 
down the most commonly erected barriers that perpetuated 
voting discrimination. Id. at 315-16 (discussing the impact 
of sections 3, 4, 5, 6, 7, 9, 12 and 13). Congress, tracking 
the Fifteenth Amendment, enacted a general precatory 
provision, section 2, which "broadly prohibitjed] the use of 
voting rules to abridge exercise of the franchise on racial 
grounds." Id. at 316.1

In City o f Mobile v. Bolden, 446 U.S. 55, 60-61, 65 
(1980) ("Bolden"), the Court reasoned that section 2 of the 
1965 Act "no more than elaborates upon . . .  the Fifteenth 
Amendment, and the sparse legislative history of section 2 
makes clear that it was intended to have an effect no different 
from that of the Fifteenth Amendment itself." It then held 
that section 2 prohibits only intentional acts of discrimination 
which deny or abridge the freedom to vote.

In response to Bolden, Congress amended section 2, 
dividing it into two subsections. In subsection (a), it added

As originally enacted, section 2 of the 1965 Act provided that:

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.

Voting Rights Act of 1965, Pub. L. No. 89-110, § 2, 79 Stat. 437 
(codified as amended at 42 U.S.C. § 1973(a) (1982)).



5

a "results" test to the original section 2 language,2 and it 
added new language as subsection (b), which states in 
pertinent part:

(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 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.

42 U.S.C. § 1973(b) (1982) (emphasis added).

Thus, through a clause in subsection (a) and the 
introductory clause in subsection (b), Congress reinstituted a 
"results test" similar to the one applied in White v. Regester, 
412 U.S. 755 (1973) ("White"). Although the results test 
removes the necessity of proving intent to establish a section 
2 violation, its inclusion did not come without political 
compromise. See Thornburg v. Gingles, 10b S.Ct. 2752, 
2764 (1986) ("Gingles") (at-large elections are not per se 
violations of section 2; vote dilution and lack of proportional 
representation alone do not violate section 2; and the results 
test does not assume the existence of racial bloc voting, 
which must be proved).

(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 
manner 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 4(f)(2), as provided in 
subsection (b).

42 U.S.C. § 1973(a) (1982).



6

Congress, in the middle of subsection (b), attempted 
to ensure that protected members of the electorate axe able to 
effectively participate in the political process, by electing 
representatives of their choice. Inclusion of the modifying 
phrase "representatives of their choice" is also the result of 
compromise. Congress accepted the context in which 
representatives was used by W hite (multi-member 
legislative districts for the Texas House of Representatives) 
and limited "representatives" to mean legislators. See infra 
at pp. 9-10.

Section 2 is the culmination of the give-and-take of the 
political process. Recognizing this, Congress admonished 
the courts, when construing and applying it, to take "a 
'functional' view of the political process, and to conduct a 
searching and practical evaluation of reality." Gingles, 106 
S.Ct. at 2775 (citations omitted). The reality here is that 
judges are not representatives.

Determination of whether certiorari should be granted 
turns solely on interpretation of the meaning o f 
"representatives" in the 1982 Act: Did Congress intend to 
include elected state judges in the term "representatives?" 
The answer is found in the interplay between the addition of 
a results test and adoption of the limiting language from 
White .

I I .  The Shortcom ings of the Chisotn C ourt's
A nalysis

The Chisotn court, in concluding that section 2(b) 
reaches elected state judges, employed a four-part analysis — 
a plain language, analysis, a legislative history analysis, a 
comparative analysis of section 5 of the Voting Rights Act 
with section 2, and an analysis which relied upon the 
Attorney General's interpretation of section 2. At each 
analytical juncture, the Chisotn court took the wrong turn.



7

A . The Plain Language

Without much adornment, the Chisom court simply 
observed that the " ' "plain meaning of [the language in 
section 2] reaches all elections, including judicial elections" 
and that the pre-existing coverage of section 2 was not 
limited by the 1982 congressional amendments.' " Chisom, 
839 F.2d at 1064 (brackets added by the court). Employing 
ordinary tools of statutory analysis suggest a different 
conclusion.

1 , The Plain M eaning Rule

"The starting point in every case involving construction 
of a statute is the language itself." Watt v. Alaska, 451 U.S. 
259, 265 (1981). If the words of a statute in their ordinary 
and common usage "convey a definite meaning, which 
involves no absurdity, . . . then that meaning . . . must be 
accepted" as the expression of Congress' legislative 
purpose. Lake County v. Rollins, 130 U.S. 662, 670 
(1889). See INS v. Cardoza Fonseca, 107 S.Ct. 1207, 
1213 (1987) ("Cardoza”) (legislative purpose is expressed 
by the ordinary meaning of the words used); Perrin v. 
United States, 444 U.S. 37, 42 (1979) ("[Ujnless otherwise 
defined, words will be interpreted as taking their ordinary, 
contemporary, common meaning.").

Reference to the lexicon is one way to establish plain 
meaning. See R. DICKERSON, THE INTERPRETATION AND
A p p l ic a t io n  o f  s t a t u t e s , 231 (1975) ("D ic k e r s o n "). 
The lexicon contrasts, rather than equates, representatives 
and judges. A representative is "a person chosen by the 
people to represent their several interests in a legislative 
body," but a judge is a person "who presides in some 
court." BLACK'S LAW DICTIONARY 676 & 435 (abridged 
5th ed. 1983). Individuals elected to the legislative branch 
represent the people whereas individuals elected to the 
judicial branch serve the people. Holshouser v. Scott, 335 
F.Supp. 928 (M.D.N.C. 1971), aff'd, 409 U.S. 807



8

(1972). Congress itself, implicitly recognizing the 
representative-servant distinction, has never defined 
representative to include a judged but, consistent with 
common parlance, has defined representative as a legislator. 
See 46 U.S.C. § 1244 (representative is synonymous with 
a member of Congress which includes delegates to the 
House of Representatives from the District of Columbia, 
Guam, and the Virgin Islands). In an unguarded moment, 
the Fifth Circuit recently recognized, consistent with 
common parlance, that judges are not representatives. See 
Hatten v. Rains, 854 F.2d 687, 696 (5th Cir. 1988) 
("Hatten") ("Judges, even if elected, do not serve a primarily 
representative function."); Id. at 696 (Garwood, J., joined 
by Jolly, J., specially concurring) ("[JJudges are not 
representatives."). Such unguarded statements, of course, 
speak volumes about the plain meaning of "representatives."

The difference between representatives and judges 
perhaps explains why Congress did not apply the results test 
of section 2 to elected judges. Representatives work as a 
body in which every protected class should have 
representation. The legitimacy of the work of a 
representative body depends on its inclusiveness. Judges, 
however, work alone to administer the law given them by 
the representative branch. See Forrester v. White, 108 S.Ct. 
538, 544 (1988) ("The decided cases, however, suggest an 
intelligible distinction between judicial acts and the 
administrative, legislative, or executive functions that judges 
may on occasion be assigned by law to perform."). The 
legitimacy of a judge's work comes from election by the 
community as a whole and could be seriously undermined if 
the judge were elected from a single constituency.

A second way to establish plain meaning is to review 
the historical and cultural context of the language. 3

3 See, e.g., 15 U.S.C. § 381 (representative is not an independent 
contractor); 29 U.S.C. § 152 (representative means a person or labor 
union); 39 U.S.C. § 3005 (representative means an agent or 
representative acting as an individual); 45 U.S.C. § 151 (representative 
means a person or labor union).



9

DICKERSON at 105-11. Our national history treats a 
representative differently than a judge. The distinction 
between the representative and judicial branches — a 
fundamental principle of both federal and state constitutional 
law, typically expressed in the separation of powers doctrine 
— is a permanent cornerstone of our national jurisprudential 
ethos.

Wells v. Edwards, 347 F.Supp. 453, 454 (M.D. La. 
1972), ajfd  mem., 409 U.S. 1095 (1973) ("Wells"), which 
held "that the concept of one-man, one-vote apportionment 
does not apply" to the judiciary, distinguished legislators 
from judges by focusing on the different governmental 
functions performed by each.

M anifestly , judges . . . are not
representatives in the same sense as are 
legislators or the executive. Their function is 
to administer the law, not to espouse the 
cause of a particular constituency.

Judges do not represent people they serve 
people.

347 F.Supp. at 455. Congress' amendment of section 2 and 
use of "representatives” was against this backdrop of 
historical understanding.4

The term representative has an even more specific 
historical context. Congress purposely borrowed section 
2(b)'s language containing the term representative from 
White v. Regester. See S. Rep. No. 417, 97th Cong., 2d 
Sess. 32, reprinted in 1982 U.S. CODE CONG. & ADMIN. 
NEWS 177, 210 ("In each case the courts looked to

4 The linguistic difference between representatives and judges is so 
great that the two terms can neither be considered identical nor does one 
include the other. Cf. Cardoza, 107 S.Ct. at 1213 ("The linguistic 
difference between the words 'well founded fear' and 'clear probability' 
may be as striking as that between a subjective and an objective frame 
of reference . . ."). Cf Burns v. Alcala, 420 U.S. 575, 580-81 (1975) 
(dependent child does not include an unborn child because Congress used 
the word child to refer to an individual already bom).



10

determine whether, in the words of both White [citation 
omitted] and the present committee amendment of section 2, 
the 'political processes' were 'equally open' and whether the 
members of the minority group had the same 'opportunity' 
as others in the electorate to 'participate in the political 
processes and to elect representatives of their choice.' "), 
("S. Rep. 417").

In delineating the burden a plaintiff must sustain in 
order to prove that a multi-member district invidiously 
eliminates or minimizes the voting strength of protected 
racial groups specifically, White referred to the legislative 
branch:

The plaintiffs' burden is to [show] . . . "that 
its members had less opportunity than did 
other residents in the district to participate in 
the political processes an d  to elect 
legislators of th e ir choice."

W hite, 412 U.S. at 766. Congress' transmutation of 
White's "legislators" into section 2(b)'s "representatives" is 
merely recognition that the two terms are synonymous and 
used interchangeably. See Davis v. Bandemer, 478 U.S. 
109, 123 (1986); Connor v. Finch, 431 U.S. 407, 416 
(1977).

Finally, any question about the plain-meaning of 
statutory language is conclusively settled where Congress 
knowingly borrows language that carries an established 
judicial interpretation. See Rodriguez v. U.S., 107 S.Ct. 
1391, 1393 (1987) {"Rodriguez") (”[I]n passing the CCCA, 
Congress acted — as it is presumed to act — with full 
awareness of the well established judicial interpretation 
. . .") (citations omitted). Congress’ use of representatives, 

with the understanding that they are legislators as defined by 
White, directly supports the position that the plain meaning 
of representatives excludes judges.



11

2 . The C lear Statem ent Rule

The clear statement doctrine, a second, equally 
powerful rule of construction, also governs the reading of 
section 2. This Court requires Congress, when passing 
legislation that ”alter[s] the relationship between the States 
and the Nation," to expressly state its intention in 
unmistakable language in the statute itself. Mitchum v. 
Foster, 407 U.S. 225, 242 (1972); see Atascadero State 
Hospital v. Scanlon, 473 U.S. 234, 243 (1985) (Eleventh 
Amendment context). A state's sovereign interest in 
maintaining the integrity of its judicial system by selecting 
the method in which its judges will be chosen imposes on 
Congress the obligation to expressly and clearly state in 
unmistakable statutory language any intention to disrupt or 
regulate a state's choice.

Congress failed to express a clearly conceived intent in 
unmistakable language to alter the relationship between the 
states and the federal government and disrupt the states' 
choice in how their judges are chosen.

3 . The S tatutory Amendment Rule

Analysis of the structure of the language of subsection 
(b) also confirms that representatives do not include judges. 
Different terminology in the amendment of an act "indicates 
[congressional] intent to change the object of the legislation." 
United States v. Dickerson, 310 U.S. 544, 561 (1940). Cf. 
Russello v. United States, 464 U.S. 16, 23 (1983) 
(" 'Where Congress includes particular language in one 
section of a statute but omits it in another section of the same 
Act, it is generally presumed that Congress acts intentionally 
and purposely in the disparate inclusion or exclusion.' ").

Congress' addition of a "results test" (making it easier 
for plaintiffs to prove a section 2 violation) along with the 
addition of "representatives" from White (which specifically 
referred to legislators) strongly indicates a change in the



12

manner in which section 2 operates to alleviate voting 
discrimination.

The Chisom court failed to grasp that, as Congress 
expanded the act to include a results test, it restricted the 
class of officeholders to whom such a test would apply. 
Ignoring the warning of Rodriguez, 107 S.Ct. at 1393, the 
Chisom court erroneously "and most impermissibly relied on 
its understanding of the broad purposes" of section 2 
(safeguarding the voting rights of protected classes) to reach 
its conclusion that section 2 applies to state judges. 
Concurrently, other legislative considerations were at work, 
ultim ately finding their embodiment in the term 
"representatives." Thus, the Chisom court's reliance on 
Congress' purpose in enacting section 2 in support of its 
plain language analysis is not persuasive, especially in light 
of section 2's language and its legislative history. See 
Rodriguez, 107 S.Ct. at 1393 (omissions and brackets by 
the Court) ("Where, as here, 'the language of a provision 
. . .  is sufficiently clear in its context and not at odds with 
the legislative history,. . . '  [there is no occasion] to examine 
the additional considerations of ‘policy* . . . that may have 
influenced the lawmakers in their formulation of the 
statute.").

B . The Legislative H istory

Once the plain-meaning of the language of a statute 
settles the question of legislative intent, legislative history is 
reviewed "to determine only whether there is 'clearly 
expressed legislative intention' contrary to that language 
which would require [a court] to question the strong 
presumption that Congress expresses its intent through the 
language it chooses." Cardoza, supra, 107 S.Ct. at 1213 
n.12. The plain-meaning presumption is so strong that 
"going behind the plain language of a statute in search of a 
possibly contrary congressional intent is 'a step to be taken 
cautiously' even under the best circumstances." American 
Tobacco Co. v. Patterson, 456 U.S. 63, 75 (1982).



13

A review of the legislative history concerning the 1982 
Act reveals four salient points, each of which casts doubt on 
any congressional intent to apply section 2 to judges.

The 1982 Act was passed in response to Bolden, 
which concerned elected policy makers who sit as a body. 
The 1982 Act incorporated the standards and language of 
White, including the definition of a representative as a 
legislator. See supra pp. 9-10.

Section 5, which this Court has held to cover judicial 
elections, see Haith, infra, at p. 15, and section 2 are 
entirely different sections with entirely different purposes.^ 
Indeed, the distinctions become critical in light of the fact 
that section 5 does not use the lim iting term 
"representatives."

And finally, a review of the legislative history reveals 
that, the overwhelming bulk of the discussion involving the 
impact of section 2 never focused on whether the judiciary 
was to be included in the amendment. Whether the judicially 
untested idea that judges were to be covered by section 2 
was a matter never seriously debated. Certainly, if Congress 
intended such a major intrusion into previously untouched 
state matters, "there would have been lengthy debate on this 
point." Quern v. Jordan, 440 U.S. 332, 343 (1979). There 
was no debate at all.

Nothing in the legislative history overcomes the plain 
language presumption. When the plain language of an act 
settles a question of statutory construction, -as the plain 
language of section 2 does here, and when "nothing in the 
legislative history remotely suggests a congressional intent 
contrary to Congress' chosen words, . . . any further steps

5 The subcom m ittee on the Constitution of the Senate Committee 
on the Judiciary, after substantial debate on the differences between 
section 2 and section 5, concluded that the omission from section 2 of 
language used in section 5 was "conspicuous and telling." The 
subcom m ittee, m oreover, noted "the fact that Congress chose not to 
utilize language in section 2 that it expressly used in sections 4 and 5 
(i.e., 'effects') to be far more persuasive of original congressional intent 

SUBCOMM. ON THE CONSTITUTION OF THE SENATE COMM. 
ON THE JUDICIARY, 97TH CONG., 2D SESS., REPORT ON THE VOTING 
RIGHTS ACT 22, 23 (Comm. Print 1982).



14

take the courts out of the realm of interpretation and place 
them in the domain of legislation." United States v. Locke, 
A ll U.S. 84, 96 (1985). The court below, in interpreting 
section 2 to encompass judicial elections, stepped into the 
realm of legislation.

C. Senator Hatch's Comment

Senator Orrin Hatch, a leading opponent of the Act, 
commented in the Senate Report that a political subdivision 
"encompasses all governmental units, including city and 
county councils, school boards, judicial districts, utility 
districts, as well as state legislatures." Chisom, 839 F.2d at 
1062 (citing S.Rep. 417) (emphasis by the court). The 
Chisom court over-exerts itself and treats Senator Hatch's 
comments as "persuasive evidence of congressional 
understanding and belief that section 2 applies to the 
judiciary." 839 F.2d at 1062. Giving such weight to so 
fine-grained a reading of the statement of one Senate 
opponent of a bill is outside even the expansive boundaries 
of statutory interpretation.

If Senator Hatch's comment was sincere, he 
misunderstood the words of the statute. Congress in 
subsection (b) employed "political subdivision" in the 
following manner: "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 
considered . . . "  Political subdivision directly modifies 
"state," has no relation to "representatives," and relates to the 
totality of circumstances in the newly enacted "results test."

Senator Hatch's comment should be given little or no 
weight for two additional reasons. "T he remarks of a single 
legislator, even the sponsor, are not controlling in analyzing 
legislative history," Chrysler Corp. v. Brown, 441 U.S. 
281, 311 (1979), and "speeches by opponents of legislation 
are entitled to relatively little weight in determining the 
meaning of the Act in question." Holtzman v. Schlesinger, 
414 U.S. 1304, 1312 (1973).



15

This Court has warned that the colloquies of witnesses 
and even individual Congressman should seldom overcome 
the plain-meaning of the language in a statute. Regan v. 
Wald, 468 U.S. 222 (1984). Indeed, to allow the "clear 
statutory language to be materially altered by such 
colloquies, which often take place before the bill has 
achieved its final form, would open the door to the 
inadvertent, or perhaps even planned, undermining of the 
language actually voted on by Congress and signed into law 
by the President." Id. at 237. Giving weight to Senator 
Hatch's comment undermines the enacted and signed 
language of section 2.

D . Section 5 and Section 2

The Chisom court also mistakenly relies on Haith v. 
Martin, 618 F.Supp. 410 (E.D. N.C. 1985), affd  mem., 
106 S.Ct. 3268 (1986) {"Haith"). Haith held that the 
preclearance requirement of section 5 of the Voting Rights 
Act applies to judicial election systems. The Chisom court 
misapplies Haith to support the proposition "that if section 5 
applies to the judiciary, section 2 must also apply to the 
judiciary." 839 F.2d at 1064. The Chisom court relied on 
the "virtually identical" language defining the scope of 
section 2 and section 5 to reach its conclusion. 839 F.2d at 
1064. Section 5, however, reads:

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 . . . .

The Chisom court's comparison fails. Section 5 does 
not specifically, or even tacitly, condition its applicability to 
election systems pertaining to representatives, as does 
section 2. Section 5 offers no support for the Chisom  
court's section 2 analysis.



16

E. The Attorney General's Role

The Chisom court also inappropriately relies on the 
Attorney General's amicus curiae brief (in which he argued 
that the plain meaning of section 2 reaches judicial elections) 
as "persuasive evidence of the original congressional 
understanding of the Act." 839 F.2d at 1064.

In doing so, the Fifth Circuit misreads United States v. 
Board o f Commissioners of Sheffield, 435 U.S. 110 (1978) 
("Sheffield"), thereby according the Attorney General 
deference to which he is not entitled. In Sheffield, the Court 
held that "in light of the extensive role . .  . Attorney General 
Katzenbach played in drafting the statute[,]" and his "key 
role in the formulation of the [1965 Voting Rights] Act," 
great deference should be given to his interpretation of the 
Act. Id. at 131-32. Attorney General Katzenbach was 
instrumental in attaining passage of the Act and wholly 
supportive of the purpose of the Act. Attorney General 
Meese, and his Justice Department, however, did not play 
any role in drafting the 1982 Act. Thus, there is no reason 
to accord the Attorney General's view special deference 
here.

M oreover, "[a] reviewing court 'm ust reject 
administrative constructions of [a] statute . . . that are 
inconsistent with the statutory mandate or that frustrate the 
policy that Congress sought to implement.' " Securities 
Industry Ass'n v. Board o f Governors of the Federal 
Reserve System, 468 U.S. 137, 143 (1984). Cf. Bureau of 
Alcohol, Tobacco and Firearms v. Federal Labor Relations 
Authority, 464 U.S. 89, 97 (1983) ("[DJeference owed to an 
expert tribunal cannot be allowed to slip into judicial inertia 
which results in the unauthorized assumption by an agency 
of major policy decisions made by Congress."). The 
Chisom court's deference to the Attorney General's 
construction was inappropriate because the Justice 
Department did not play the role contemplated by Sheffield 
and because the Attorney General's construction frustrates 
Congress' intent.



17

I I I .  S ignificant P rotections Rem ain

Rejection of the Chisom court's holding would not 
leave minority voters unprotected in their exercise of the 
franchise, the fear of which may have silently crept into the 
Fifth Circuit's analysis.

First, and most obviously, Congress could react to a 
rejection by this Court of the Chisom holding just as surely 
and quickly as it did to this Court's Bolden decision. Given 
the earlier discussion about the need for Congress clearly to 
express its legislative intent to intrude into traditional state 
functions (such as judicial districting), see p. 11, supra, 
Congress should have an opportunity to debate this 
heretofore undebated issue. Such restraint seems a sound 
jurisprudential response to the problem being brought to the 
Court's attention.

Second, both the Constitution and the Voting Rights 
Act continue to offer significant protections to minority 
voters in connection with judicial elections. The Fifteenth 
Amendment still prohibits intentional acts of official racial 
discrimination against those seeking to exercise their 
franchise in judicial elections. See Bolden. In the Chisom 
case itself, for instance, proof of intentional discriminatory 
acts in the establishment of the at large judicial district being 
challenged still may succeed, notwithstanding this Court's 
rejection of the application of the results test to such judicial 
elections. The Voting Rights Act itself, as canvassed and 
found constitutionally valid in Katzenbach, contains a host 
of major protections for those seeking to exercise their 
franchise when electing judges. These protections include 
ballot access and, as held in Haith, supra, preclearance of 
various electoral changes involving judicial elections.

The availability of these protections highlights the 
extreme narrowness of the legal issue raised by Chisom. It 
does not involve a constitutional issue; reversing the Fifth 
Circuit would not permit intentional vote dilution in judicial 
races; and minority voters would still be entitled to a host of 
statutorily based ballot access protections. Whether



18

Congress in 1982 permitted the application of the results test 
to minority vote dilution claims in judicial elections is the 
only legal issue confronting the Court. It is a question in 
need of a final answer.

CO N C LU SIO N

The Court need not await further developments and 
possible conflicts in the inferior federal courts. The issue is 
too straightforward to require it and too important to permit 
it. Instead, the Court should issue the requested writ of 
certiorari to settle this crucial issue.

Respectfully submitted,

Jim Mattox
Attorney General of Texas

Mary F. Keller
First Assistant Attorney General

Renea Hicks*
Special Assistant Attorney General

Javier Guajardo
Assistant Attorney General

P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
(512) 463-2025

October 21, 1988 Attorneys for Amici Curiae
* Attorney of Record

(Additional Counsel Listed in Appendix)



A-!

A PPEN D IX

ADDITIONAL COUNSEL FOR AMICI CURIAE

State of Arkansas
John Steven Clark 
Attorney General of Arkansas 
200 Tower Building 
4th and Center Streets 
Little Rock, Arkansas 72201 
(501) 682-2007

State of Florida
Robert A. Butterworth 
Attorney General of Florida 
The Capitol
Tallahassee, Florida 32399-1050 
(904) 487-1963

State of Georgia
Michael J. Bowers 
Attorney General of Georgia 
132 State Judicial Building 
Atlanta, Georgia 30334 
(404) 656-4585

State of Illinois
Neil F. Hartigan 
Attorney General of Illinois 
100 West Randolph Street 
Chicago, Illinois 60601 
(312)917-2503

State of North Carolina
Lacy H. Thornburg 
Attorney General of North Carolina 
Department of Justice 
P. O. Box 629
Raleigh, North Carolina 27602 
(919) 733-3377