Brief for the Lawyers’ Committee for Civil Rights Under Law the American Civil Liberties Union and others as Amici Curiae in Support in of Petitioners

    Nos. 90-757, 90-1032, 90-813, & 90-974 
  
  

IN THE 

Supreme mut of the United States 
OCTOBER TERM, 1990 

RONALD CHISOM, et al., 
v Petitioners, 

CHARLES ROEMER, et al., 
Respondents. 

HousTON LAWYERS’ ASSOCIATION, et al., 
¥ Petitioners, 

ATTORNEY GENERAL OF TEXAS, et al., 
Respondents. 

(Caption Continued on Inside Cover) 

On Writs of Certiorari to the United States 
Court of Appeals for the Fifth Circuit 

BRIEF FOR THE LAWYERS’ COMMITTEE FOR 
CIVIL RIGHTS UNDER LAW, THE AMERICAN CIVIL 

LIBERTIES UNION, THE MEXICAN AMERICAN LEGAL 
DEFENSE AND EDUCATION FUND, THE AMERICAN 
JEWISH CONGRESS, AND THE AMERICAN JEWISH 

COMMITTEE AS AMICI CURIAE 
IN SUPPORT OF PETITIONERS 

ROBERT F. MULLEN BARBARA R. ARNWINE 

DAVID S. TATEL FRANK R. PARKER 

Co-Chairs ROBERT B. MCDUFF * 
NORMAN REDLICH BRENDA WRIGHT 

Trustee JAMES HALPERT 
LAWYERS’ COMMITTEE FOR CIVIL 

RIGHTS UNDER LAW 
1400 Eye Street, N.W. 

* Counsel of Record Washington, D.C. 20005 

(202) 871-1212 

March 4, 1991 Counsel for Amici Curiae 

(Additional Counsel Listed on Inside Cover) 

  

  

WILSON = EPES PRINTING CO., INC. =~ 789-0096 - WASHINGTON, D.C. 20001  



    

UNITED STATES OF AMERICA, 
Petitioner, 

CHARLES ROEMER, et al., 

Respondents. 

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, et al., 
Petitioners, 

ATTORNEY GENERAL OF TEXAS, et al., 
Respondents. 

LAUGHLIN MCDONALD SAMUEL RABINOVE 

NEIL BRADLEY RICHARD T. FOLTIN 

KATHLEEN L. WILDE AMERICAN JEWISH COMMITTEE 

MARY WYCKOFF 165 East 56th Street 

AMERICAN CIVIL LIBERTIES New York, New York 10022 

UNION FOUNDATION, INC. (212) 751-4000 
44 Forsyth Street, N.W., #202 

Atlanta, Georgia 30303 

(404) 523-2721 

ANTONIA HERNANDEZ 

JUDITH SANDERS-CASTRO 
MEXICAN AMERICAN LEGAL 

ELIOT SHAVIN DEFENSE AND EDUCATION FUND 

Counsel for 634 South Spring Street 
AMERICAN JEWISH CONGRESS, Los Angeles, California 90014 

Southwest Region (213) 629-2512 
3500 Oaklawn Avenue 
Dallas, Texas 75219 

(214) 522-2010 

 



  

TABLE OF CONTENTS 
Page 

TABLE OF CONTENTS ..citeieniiecstsiirscnsdiilvesdonsis i 

TABLE OF AUTHORITIRS ... ........... ol... iii 

INTEREST OR AMICI CURIAE. ................ ions... 2 

SUMMARY OF ARGUMENT ite toe niianronsnns 4 

AR UM EN eerie 6 

I. THE LANGUAGE, STRUCTURE, PURPOSE, 
AND LEGISLATIVE HISTORY OF SECTION 
2 SHOW THAT CONGRESS INTENDED IT 
TO APPLY TO ALL ELECTIONS AND DID 
NOT INTEND TO EXCLUDE JUDICIAL 
BLECTIONS conan i... 6 

A. The Language and Structure of Section 2 

Compel the Conclusion That All Elections, 

Including Judicial Elections, Are Covered... 7 

B. The Word “Representative” in Section 2 (b) | 

Refers to All Elected Officials and Does Not | 

EE ciude JUATEE earner ran srene 9 

C. The Purpose of the 1982 Amendment Was to 

Broaden Section 2’s Coverage, and the Legis- 

lative History Belies Any Intent to Exclude 
Judicial Blections -..... 0... 12 

II. NOTHING INDICATES CONGRESS IN- | 
TENDED SECTION 2 TO APPLY ONLY TO 
ELECTIONS FOR APPELLATE COURT | 
JUDGES AND NOT TO ELECTIONS FOR 
TRIAL COURT JUDGES... i ierieaes 19 

A. The Appropriateness of Subdistricting as a 

Remedy Is Irrelevant to the General Ap- 

plicability of Section 2 Inasmuch as a State 
May Choose Remedies Other Than Subdis- 
tricting That Adequately Protect Any Inter- 

ests It Has in At-Large Trial Court Elec- 

BONE conte iviiocnmeehs mans ncseiumenmmsumeciaarnoeaseantons 21 

  

 



  

ii 

TABLE OF CONTENTS—Continued 

B. Even If the Appropriateness of Subdistrict- 
ing Were Somehow Relevant, the State Inter- 

ests Identified by the Concurring Opinion 

Would Not Be Infringed by Subdistricting 

and Do Not Outweigh the Congressional Pur- 

pose of Eliminating Discrimination in Elec- 

BONS es mA 

C. No “Single-Member Office” Exception Re- 

moves Trial Judges from the Coverage of 

Tw DY I ARE ES EE Saas 

D. The Concurrence Failed to Consider the In- 

terests in Non-Discriminatory Elections That 

Congress Attempted to Further Through 

Section 2, and Instead Focused Exclusively 

on the Issue of Responsiveness ...................... 

III. NOTHING INDICATES CONGRESS IN- 
TENDED TO EXCLUDE FROM SECTION 
2’S COVERAGE AT-LARGE JUDICIAL ELEC- 
TIONS FROM DISTRICTS CO-EXTENSIVE 

WITH THE JURISDICTIONAL AREA 
SERVED BY THE JUDGES ELECTED .......... 

CONOTUSTON ro. vus.io lh oorissininrssisbhonssitessiinn sonsvsditins ssi 

Page 

23 

26 

oq 

29 

30 

   



iii 

TABLE OF AUTHORITIES 

Cases: Page 

Allen v. State Board of Elections, 393 U.S. 544 

(1969) coe A Ee 14 
Brooks v. State Board of Elections, CV288-146 

(S.D. Ga. Dec. 1, 1989) (three-judge court), 

aff'd mem. sub nom. Georgia Board of Elections 

2, Brooks, 111.8. Ct. 283 (1990)... ...............-- 9 
Buchanan v. City of Jackson, 708 F.2d 1066 (6th 

Clr. 1983) Vol 0 acs, Bday Nal 27 
Burlington Northern R. Co. v. Okla. Tax Commis- 

Stow, 431 U.8, 454 (1987) 1. 2... 0. 8 
Butts v. City of New York, 779 F.2d 141 (24d Cir. 

1985), cert. denied, 478 U.S. 1021 (1986) ......... 21,26 

City of Mobile v. Bolden, 446 U.S. 55 (1980) .......... 15 

Clark v. Edwards, 725 F. Supp. 285 (M.D. La. 
1988) vee i a Ea 1 

Demarest v. Manspeaker, 111 S. Ct. 599 (1991)... 7,13 

Dillard v. Town of Cuba, 708 F. Supp. 1244 (M.D. 

Aa TORRY ee 2 
Goodyear Atomic Corp. v. Miller, 486 U.S. 174 

GES E SRA I IS ROE Sud en le Le 13 
Georgia Board of Elections v. Brooks, 111 S. Ct. 

PRR UT090) . oo ES al a 9, 20, 29 
Kirksey v. Board of Supervisors of Hinds County, 

554 F.2d 139 (5th Cir.) (en banc), cert. denied, 

434: UB. 968 (19770. a. on ian hn 13,16 | 
LULAC v. Clements, 914 F.2d 620 (5th Cir. 1990) | 

(enbane)nins. fo. nena ales ann passim | 
Mollory v. Byrich, 339 F.2d 275 (1988) ............. 9,10, 14 | 
Martin v. Mabus, 700 F. Supp. 327 (S.D. Miss. | 

R088)... aa 26 | 
Perkins v. Matthews, 400 U.S. 8379 (1971) ........... 14 | 
Pilot Life Insurance Co. v. Dedeauz, 481 U.S. 41 | 

YOR) i a a 6 | 
SCLC v. Siegelman, 714 F. Supp. 511 (M.D. Ala. | 

1989) nn BRT se 23 | 

Thornburg v. Gingles, 478 U.S. 30 (1986) ..6, 12, 14, 23, 24 

United States v. Board of Supervisors of Forrest 

County, 571 F.24 951 (5th Cir. 1978) ...........0 13  



  

iv 

TABLE OF AUTHORITIES—Continued 

Page 

Voter Information Project v. City of Baton Rouge, 

612 .2d 208 (3th Cir. 1980) . ........... 0 13 

White v. Regester, 412° U.S. 7585. (19713) .........-...... 9 

White v. Weiser, 412 U.S. 783 (1973) ................. 22 

Whitfield uv. Clinton, No. 90-388... coins 26 

Constitution, Statutes and Legislative Materials: 

United States Constitution, Amendment XIV __.___. 13 

United States Constitution, Amendment XV _...____. 13 

Section 2 of the Voting Rights Act of 1965 as 

amended,i42 U.S.C. S$ 19073 ¢.«i oan a PaASSIM 

Section 5 of the Voting Rights Act of 1965 as 

amended, 42 U.S.C. $1973¢ i cont i 9, 20, 29 

Section 14 of the Voting Rights Act of 1965 as 

amended, 42 U.S.C. $1973l(c) (1) ............... 0... 4,7 

S. Rep. 97-417, 97th Cong., 2d Sess. (1982), re- 

printed in 1982 U.S. Code Cong. & Adm. News 

| EL I ER Ee Nt 13, 14, 16, 23, 28 
Extension of the Voting Rights Act: Hearings on 

HR. 10), HR 1731, HR. 3112, HR. 3195, H.R. 

3473 and H.R. 34,98 Before the Subcomm. on 

Civil and Constitutional Rights of the House 

Comm. on the Judiciary, 97th Cong., 1st Sess. 

(1081) od a a. 14, 15,16, 17, 18, 19 
Voting Rights Act: Hearings on S. 53, S. 1761, 

S. 1975, S. 1992, and H.R. 3112 Before the Sub- 

comm. on the Constitution of the Senate Comm. 

on the Judiciary, 97th Cong., 2d Sess. (1982) .... 14, 15, 

16, 17, 18, 19 

Rules: 

Rule 52, Federal Rules of Civil Procedure ........... 24 

Other Authorities: 

C. Cook, The American Codification Movement: 
A Study of Antebellum Legal Reform (1981)... 71 

F. Green, Constitutional Development in the South 

Atlantic States, 1776-1860: A Study in the 

Boolution of Democracy (1930) ........................... 11 

   



  

Vy 

TABLE OF AUTHORITIES—Continued 

K. Hall, The Politics of Justice: Lower Federal 

Judicial Selection and the Second Party System 

(L970) 

Hall, “The ‘Route to Hell’ Retraced: The Im- 

pact of Popular Election on the Southern Appel- 

late Judiciary, 1832-1920,” in Ambivalent Leg- 

acy: A Legal History of the South (D. Boden- 

hamer & J. Blveds. 1984)... ... 
Karlan, “Maps and Misreadings: The Role of Geo- 

graphic Compactness in Racial Vote Dilution 

Yitigation”, 24 Harv. C.BR-C.L. 1. Rev. 173 

(1980)... or 

R. McCloskey, 1 The Works of James Wilson, 

(1967 ed.) 

E. Morgan, Inventing the People: The Rise of Pop- 

ular Sovereignty in England and America 

(1988) 

H. Pitkin, The Concept of Representation (1967) .. 

Report of the Lawyers’ Committee for Civil Rights 

Under Law, Voting in Mississippi: A Right Still 

Denied (September 1981) ..........cocooe oie. on 

G. Wood, The Creation of the American Republic 

106-2287 (1069) “FT oe 

Page 

11 

11 

22 

16,19 

 





  

IN THE 

Supreme Gmuet of the Wuited States 
OCTOBER TERM, 1990 

No. 90-757 

RoNALD CHISOM, et al., 

. Petitioners, 

CHARLES ROEMER, et al., 
Respondents. 

No. 90-1032 

UNITED STATES OF AMERICA, 
v Petitioner, 

CHARLES ROEMER, et al., 
Respondents. 

No. 90-813 

HouSTON LAWYERS’ ASSOCIATION, et al., 

” Petitioners, 

ATTORNEY GENERAL OF TEXAS, et al., 

Respondents. 

No. 90-974 

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, et al., 
hs Petitioners, 

ATTORNEY GENERAL OF TEXAS, et al., 
Respondents. 

On Writs of Certiorari to the United States 

Court of Appeals for the Fifth Circuit 

——————————  



    

2 

BRIEF FOR THE LAWYERS’ COMMITTEE FOR 
CIVIL RIGHTS UNDER LAW, THE AMERICAN CIVIL 
LIBERTIES UNION, THE MEXICAN AMERICAN LEGAL 
DEFENSE AND EDUCATION FUND, THE AMERICAN 
JEWISH CONGRESS, AND THE AMERICAN JEWISH 

COMMITTEE AS AMICI CURIAE 
IN SUPPORT OF PETITIONERS 

INTEREST OF AMICI CURIAE 

The Lawyers’ Committee for Civil Rights Under Law 
was organized in 1963 at the request of the President of 

the United States to involve private attorneys through- 
out the country in the national effort to assure civil 
rights to all Americans. Protection of the voting rights 

of citizens is an important part of the Committee’s work, 
and the Committee has represented minority citizens in 
challenges to discriminatory judicial elections in Missis- 

sippi, Louisiana and Florida under Section 2 of the 

Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973. 
In the Louisiana case, the trial court found liability 

under Section 2 following a full trial on the merits 
(Clark v. Edwards, 7125 F. Supp. 235 (M.D. La. 1988)), 

but was required to vacate the finding because of the 
Fifth Circuit’s holding in LULAC v. Clements, 914 F.2d 
620 (5th Cir. 1990) (en banc). 

The American Civil Liberties Union is a nationwide 
membership organization with over 250,000 members. It 

has a longstanding concern with promoting equality of 
the franchise. Since 1965, it has maintained a Southern 

Regional Office which represents minority voters in a 

number of voting rights cases, including the Voting 
Rights Act challenge to discriminatory judicial elections 
in Georgia. 

The Mexican American Legal Defense and Educational 

Fund (MALDEF) is a national civil rights organization 
established in 1967. Its principal objective is to secure, 

 



  

3 

through litigation and education, the constitutional and 
civil rights of Hispanics living in the United States. 
MALDEF and its attorneys have engaged in substan- 

tial litigation to protect the right of Hispanics to an 
undiluted vote as guaranteed by the Fourteenth Amend- 

ment and Sections 2 and 5 of the Voting Rights Act. 

The American Jewish Congress is a not-for-profit or- 
ganization of American Jews founded in 1918 to protect 
the civil, political, economic and religious rights of Ameri- 
cans. The Congress believes that in a democracy, these 
rights depend upon free and fair access to the ballot and 
the political process. In accordance with that belief, the 

Congress has long advocated, both in legislatures and 
courts, vigorous protection of the right to vote. 

The American Jewish Committee (“AJC”) is a national 
organization founded in 1906 for the purpose of protecting 

the civil and religious rights of Jewish Americans. It has 
always been the conviction of the AJC that the security 
and the constitutional rights of Jewish Americans can 
best be protected by helping to preserve those of all Ameri- 

cans, irrespective of race, religion, sex or national origin. 

Each of the amici participated in the legislative process 
culminating in the enactment of amended Section 2 in 
1982. Amici are, therefore, particularly competent to 

offer views regarding the principles and history associated 

with the legislation. In addressing the major points that 

refute the lower court’s restrictive construction of Section 
2, amici have paid special attention to arguments and 
information not included, or not developed as fully, in the 
parties’ briefs. 

 



  

4 

SUMMARY OF ARGUMENT 

1. Contrary to the holding of the United States Court 
of Appeals for the Fifth Circuit, Congress did not intend 
to exclude discriminatory elections for state judges from 
the coverage of Section 2 at the same time it amended the 
statute in 1982 to eliminate the requirement of proving 
discriminatory intent. 

A. An examination of the language and structure of 
Section 2 demonstrates that it covers all elections. Section 
2(a) uses the terms “vote” and “voting” to describe Sec- 

tion 2’s scope, and those terms are defined in Section 14 
(c) (1) of the Act, 42 U.S.C. §1973l(ec) (1), to include 
“any primary, special, or general election . . . with respect 
to candidates for public or party office.” By contrast, 
Section 2 (b) does not serve the function of describing the 
scope of elections covered, but instead sets forth how “a 
violation of Section 2 (a) is to be established.” Thus, there 
is no warrant for concluding that the word “representa- 
tives,” which appears only at the end of a conjunctive 
clause in one sentence of Section 2(b), is a definitional 

term intended to exclude an entire category of elections 
from the coverage of Section 2. 

B. In addition, even if Section 2(b) could be read to 

define the scope of elections covered, the use of the word 
“representatives” does not indicate an intent to exclude 
elected judges, but instead refers to any elected official. 
The use of the word in political science literature and 

historical writing on the constitution and judicial selec- 
tion, as well as its practical usage, demonstrate that it 

can readily be employed without excluding elected judges. 

C. The purpose of the 1982 amendment was to expand 
the statute’s coverage by eliminating any requirement of 
proving discriminatory intent. It is inconceivable that 
Congress, at the same time, would have removed from 
Section 2 an entire category of elections without any 

mention of the exclusion in the extensive debates, congres- 

   



5 

sional hearings, and committee reports that accompanied 
the legislation. Furthermore, testimony at the congres- 
sional hearings concerning the 1982 amendments to the 
Act described pre-1982 vote dilution litigation involving 

elected judges, discussed discriminatory practices in judi- 
cial elections, and mentioned the aspirations of minorities 
for greater representation on the elected state bench. This 
contradicts the contention that Congress, without any in- 
dication in the legislative history, excluded discriminatory 
elections for judges from the scope of Section 2. 

2. Judge Higginbotham, along with three other judges, 
concluded that Section 2 covers appellate judges but not 
trial judges. However, Congress never suggested any 
intent to limit Section 2 to such selective coverage, and 
the language, purpose, and legislative history refute Judge 

Higginbotham’s concurrence. The view advanced by the 
concurrence is that the state interests behind maintaining 
electoral districts geographically coextensive with trial 
court jurisdiction are so strong that they automatically 
outweigh the goals of Section 2 and are therefore invul- 
nerable to challenge under Section 2. That is nothing more 

than an attack on the potential remedy of subdistricting, 
by which judges are elected from subdistricts within a 
judicial district and hear cases from throughout the dis- 
trict. However, even if that analysis of subdistricting 
were correct, a state has other options to consider when 
adopting remedial plans—options that would protect any 
state interest in keeping electoral districts geographically 

coextensive with the trial judges’ normal jurisdiction. The 

appropriateness of subdistricting as a remedy is not dis- 
positive of the general applicability of Section 2 to trial 
judges. Moreover, there is no reason to believe that the 

state’s interests would be undermined by subdistricting. 
In addition, the concurring opinion misconstrues the na- 

ture of the interests protected by Section 2, and places far 
too much weight on the “responsiveness” of elected judges 
to minority litigants if subdistricting were to occur.  



  

6 

3. Judge Clark, in a concurring opinion for himself, 
contended that Section 2 does not apply to any elections 
for trial or appellate judges where the judges’ jurisdiction 
is geographically coextensive with their election district. 
There is no reason to believe Congress intended such an 

exception to Section 2. As with Judge Higginbotham’s 
concurrence, Judge Clark’s view is premised on what he 
perceives to be the fundamental state interest in retaining 
judicial election districts that are coextensive with the 
normal jurisdiction of the judges elected. That view er- 
roneously assumes that subdistricting is the only remedy 
available for state to adopt, and misperceives both the 
state’s interests and the interests Congress sought to pro- 

tect with Section 2. 

ARGUMENT 

I. THE LANGUAGE, STRUCTURE, PURPOSE, AND 
LEGISLATIVE HISTORY OF SECTION 2 SHOW 
THAT CONGRESS INTENDED IT TO APPLY TO 
ALL ELECTIONS AND DID NOT INTEND TO EX- 
CLUDE JUDICIAL ELECTIONS. 

In 1982, Congress amended Section 2 to broaden its 
coverage by eliminating any requirement of proving dis- 

criminatory intent. Thornburg v. Gingles, 478 U.S. 30, 

35 (1986). The Fifth Circuit held that Congress, by using 
the word “representatives” in the text of Section 2, in- 
tended at the same time to exclude all elections for state 
court judges from Section 2’s coverage, even though no 
such exclusion is mentioned anywhere in the numerous 

debates and hearings and the lengthy committee reports 
on the amendment. The Fifth Circuit’s reliance on this 
one word runs afoul of this Court’s frequent admonition 
that courts “must not be guided by a single sentence or 
member of a sentence, but look to the provisions of the 

whole law, and to its object and policy.” Pilot Life Insur- 
ance Co. v. Dedeauz, 481 11.8, 41,51 (1987) (internal 

quotations and citations omitted). As demonstrated below, 
the language and structure of Section 2, the purpose of 

   



  

74 

the 1982 amendment, and the legislative history all refute 
the Fifth Circuit's interpretation. 

A. The Language and Structure of Section 2 Compel 

the Conclusion That All Elections, Including Ju- 

dicial Elections, Are Covered. 

The language and structure of the Act establish that 
Section 2 is not selective with respect to the offices covered, 
but is instead all-inclusive of every type of election and 

elected office.! Section 2 itself contains no office-by-office 
list of the specific elective positions that are covered. 
Instead, Congress established the scope of Section 2 by 
employing in Section 2(a) two terms—‘“vote” and ‘“vot- 
ing”’—that are specifically defined in Section 14 (¢) (1) of 
the Act to include “all action necessary to make a vote 
effective in any primary, special, or general election, in- 
cluding, but not limited to, . . . casting a ballot and having 
such ballot counted properly with respect to candidates 
for public or party office.” 42 U.S.C. Section 1973 (c) (1). 
These broad definitions clearly encompass elections for 

judges. 

Section 2 (a), then, establishes the all-inclusive scope of 

the elections covered by using these two statutorily de- 

fined terms and providing: 

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 abridgment of 
the right of any citizen of the United States to vote 
on account of race or color . .. as provided in sub- 
section (b) of this section. 

In contrast, Section 2(b), in which the word “repre- 

sentatives” appears, does not serve the function of de- 
fining the scope of the offices covered by Section 2. In- 

1 This Court has stated that the starting point of statutory 

interpretation is the language of the statute itself. See Demarest v. 

Manspeaker, 111 S. Ct. 599, 602 (1991).  



  

8 

stead, Section 2(b) defines the manner in which a vio- 

lation of subsection (a) is established. Section 2(b) be- 
gins by stating “[a] violation of subsection (a) of this 
section 1s established if [the specified showing is made].” 
(Emphasis added). The remainder of Section 2(b) sets 

forth the substantive showing that must be made, and 
contains a proviso dealing with the significance of the 
extent to which members of the protected class have been 
elected to office. 

There is no such thing, therefore, as an elective office 

“covered” in Section 2(a) that is not also “covered” by 

Section 2(b), since Section 2(a) specifically states that 
it is to be applied “as provided in subsection (b) of this 
section,” while Section 2(b) specifically provides that 
it sets forth how “a violation of Section 2(a) is estab- 
lished.” Given this statutory structure and language, 
there is no support for the conjecture that an entire cate- 
gory of elections covered by Section 2(a) could suddenly 
turn up missing in Section 2(b).2 

Indeed, most of the language of Section 2(b) echoes the 
same broad phrasing found in Section 2(a). The first 
sentence of Section 2(b) refers broadly to “the political 
processes leading to nomination or election in the State 
or political subdivision”’—phrasing which by its terms in- 

corporates all electoral processes without exception. That 
sentence continues by referring to the opportunity en- 
joyed by members of the protected class “to participate in 
the political process”’—again, no exclusion of or reference 
to any particular category of elections—‘“and to elect 

2 Under the Fifth Circuit’s analysis, judicial elections are covered 

by Section 2 as long as intentional discrimination is proven, while 

challenges to all other categories of elections are not governed by 

any intent requirement. 914 F.2d at 625 n.6. It is impossible to 

find this distinction anywhere in the statutory language. In Burling- 

ton Northern R. Co. v. Okla. Tax Commission, 481 U.S. 454, 463-64 
(1987), this Court unanimously reversed a Court of Appeals holding 

that would have read into a statute an intent requirement for some 

types of actions covered by the statute but not for others. 

   



9 

representatives of their choice.” The phrase as a whole 
(“to participate in the political process and to elect rep- 
resentatives of their choice”) clearly focuses on the ac- 

tions and opportunities of the protected class and not on 

the specific categories of offices subject to the Act. It 
would be a strange method of drafting that would set 
about to exclude a category of elections from the statu- 
tory coverage by placing the all-important definitional 

term only at the end of a conjunctive clause in a long 
sentence that otherwise broadly defines the substantive 

standards in question.®? A straightforward and natural 
reading of the statutory language requires the conclu- 

sion that Congress did not intend the word ‘“representa- 

tives” to exclude judicial elections from Section 2’s cov- 
erage. 

B. The Word “Representative” in Section 2(b) Refers 

to All Elected Officials and Does Not Exclude 

Judges. 

There is a much simpler explanation for Congress’ use 
of the word “representatives” than that employed by the 
Fifth Circuit majority. The portion of subsection (b) 

in which the word appears was taken from White ov. 

Regester, 412 U.S. 755 (1973), which refers to minority 

groups whose members have less opportunity than others 
“to participate in the political process and to elect legis- 
lators of their choice.” Id. at 766. Congress substituted 

the word “representatives” for “legislators.” As the 

Sixth Circuit said in Mallory v. Eyrich, 839 F.2d 275 
(1988), “[i]t seems evident that Congress was seeking a 

broader word to make it clear that subsection (b) is not 

3 The parallel language defining the scope of Section 2 and Section 

5 of the Act—the latter of which has been interpreted by this Court 

to encompass elections of state court judges, Georgia Board of Elec- 

tions v. Brooks, 111 S. Ct. 288 (1990), summarily aff’g Brooks v. 

State Board of Elections, No. CV288-146 (S.D. Ga. Dec. 1, 1989) 

(three-judge court) —further establishes that Section 2 applies to 

judicial elections. This point is developed in the briefs of the peti- 

tioners and will not be discussed further here.  



  

10 

limited to legislative races.” Id. at 279. Without pausing 
to list all of the covered offices by title—an unnecessary 
exercise since the scope of the Act is defined elsewhere— 
the drafters of Section 2 substituted a more generic term 
in place of the word “legislators.” 

The Fifth Circuit’s holding hinges on its belief that 
the word “representatives” can have only one meaning, 

and that meaning necessarily excludes judges. 914 F.2d 

at 625-27. Political science literature refutes such a 
narrow and singular understanding of the concept of 
“representation.” For instance, Professor Hannah Pit- 
kin’s highly-regarded work, The Concept of Representa- 
tion (1967), notes that “[c]ourts, judges and juries 
have been discussed as representative organs of the 
state.” Id. at 227. Pitkin offers several examples of how 
judges can be considered “representatives”: 

From a formalistic standpoint, a judge is an agent of 
the state like all government officials. His pronounce- 
ments are not private expressions of opinion, but offi- 
cial utterances of the state. Hence he represents the 
state. In a democracy where all agencies of the gov- 
ernment are servants of the sovereign people, the 
judge might be said to represent the people. From 
the “standing for” interpretation, he may represent 
by embodying the values of a society. From the doc- 
trine that anyone whose commands are obeyed and 
whose leadership is accepted is a representative, a 
judge certainly represents. . . . 

Id. at 116-117. 

Use of the words “representatives” and “represent” 
with respect to judges are features of the historical writ- 
ing on the Federalist and Jacksonian eras, the seminal 
moments in the establishment, respectively, of the fed- 
eral and the elective state judiciaries. James Wilson, 
distinguished jurist and delegate to the Constitutional 
Convention, wrote of “[t]he extension of the theory and 
practice of representation through all the different de- 

   



11 

partments of the state” in America. 1 The Works of 
James Wilson 311 (R. McCloskey, ed. 1967) (emphasis 
added). Professor Edmund S. Morgan, writing about the 
development of state constitutions and the federal con- 
stitution in the United States, said this: 

A constitution superior to ordinary legislation could 
insure a strong position in government to the execu- 
tive and the judiciary as well as the legislature, by 
making them all representatives of popular sover- 
eignty and guaranteeing to them all a share in the 

power that supposedly emanated from the people. 

E. Morgan, Inventing the People: The Rise of Popular 
Sovereignty in England and America 260-61 (1968) 
(emphasis added). See also, G. Wood, The Creation of 

the American Republic, 1776-1787 456, 460, 596-99 
(1969) (noting that American political thought of the 
late 1780s viewed all three branches of government as 
representatives of the people). 

Many reformers of the Jacksonian era who favored 
the election of judges certainly considered judges chosen 
by the people to be representatives in some sense. Writ- 
ing of that time, Charles M. Cook noted the belief of 
reformers that, through election, judges “would be made 

representative to the people and sensitive to their needs.” 
C. Cook, The American Codification Movement: A Study 
of Antebellum Legal Reform 161 (1981) .* 

The Fifth Circuit’s opinion suggested that judges can 
never be considered ‘representatives’ because they oc- 
casionally must make decisions contrary to public will 

4 See also, F. Green, Constitutional Development in the South 

Atlantic States, 1776-1860: A Study in the Evolution of Democracy 

279 (1930) ; K. Hall, The Politics of Justice: Lower Federal Judicial 

Selection and the Second Party System 103 (1979); Hall, “The 

‘Route to Hell’ Retraced: The Impact of Popular Election on the 

Southern Appellate Judiciary, 1832-1920,” in Ambivalent Legacy: 

A Legal History of the South 229, 237-38 (D. Bodenhamer & J. 

Ely eds. 1984).  



  

12 

and may not favor any particular constituency in dis- 

charging their duties. 914 F.2d at 626. Of course, the 
same is true of any number of elected executive or quali- 
legislative officials whom the Fifth Circuit would con- 
sider to be “representatives,” such as prosecutors, con- 
stables, civil service boards, tax assessors, recorders of 

deeds, and prothonotaries. Indeed, legislators take an 
oath to uphold the Constitution, and occasionally act 
against the public will in fulfilling that oath. 

Moreover, judges sometimes do consider and translate 
the popular will into judicial decisions, for instance in the 
development of the common law or the determination of 
what constitutes cruel and unusual punishment. Thus, 
judges are ‘representatives’ or agents of the public in 

the ongoing evolution of legal doctrine.’ Elected judges 
can also be said to “represent” the choice of the voters 
as to who will best serve the public good in discharging 
the duties of the judiciary. 

Thus, the use of the word “representatives” does not 
evidence an intent to exclude elected judges. 

C. The Purpose of the 1982 Amendment Was to Broaden 

Section 2’s Coverage, and the Legislative History 

Belies Any Intent to Exclude Judicial Elections. 

Congress’ purpose in amending Section 2 was to 
broaden the Act’s coverage by eliminating any require- 
ment of proving intentional discrimination. Thornburg 
v. Gingles, 478 U.S. at 35. The Fifth Circuit’s holding 
that Congress, at the same time, narrowed the coverage 

of Section 2 to exclude an entire category of elections 

5 Indeed, in a recent letter to the federal district judge in Clark v. 

Roemer, No. 90-952, the case involving Louisiana trial and appellate 

judges, the attorney for the State defendants in both Clark and in 

Chisom v. Roemer, No. 90-757, Robert Pugh, wrote of one elected 

Louisiana judge who had retired and who “is no longer representing 

his former district” (emphasis added) (December 28, 1990 letter 

from Robert Pugh to Hon. John V. Parker, reproduced in the at- 

tached appendix). 

   



13 

simply cannot be squared with the well-documented con- 
gressional intent, and is unsupported by even a sliver of 

evidence in the legislative history.¢ 

6 The Fifth Circuit incorrectly relied upon an alleged “presump- 

tion” that Congress intended to incorporate the phraseology of cases 

holding the one-person, one-vote principle inapplicable to judicial 

elections. 914 F.2d at 628. None of those cases are cited in the 

legislative history of the 1982 amendment. See Demarest v. Man- 

speaker, 111 S. Ct. at 603-04 (declining to apply a presumption 

that Congress incorporated prior administrative and judicial deci- 

sions in a statute where there was no evidence Congress was aware 

of the prior interpretations and where the statutory language did 

not support the interpretation at issue). Moreover, the presumption, 

if applicable, supports plaintiffs, because it imputes to Congress 

knowledge only of “existing law pertinent to the legislation it en- 

acts.” Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 185 (1988). 

Much more pertinent to the 1982 Section 2 amendment than the 

one-person, one-vote cases is the 1980 holding of the Fifth Circuit in 

Voter Information Project v. City of Baton Rouge, 612 F.2d 208 

(5th Cir. 1980). There, the Fifth Circuit held that a racial vote 

dilution challenge could be maintained against at-large judicial 

elections under the Fourteenth and Fifteenth Amendments irre- 

spective of the inapplicability of the one-person, one-vote rule. Con- 

gress’ presumed awareness of Voter Information Project would 

indicate that discriminatory judicial elections are not excluded from 

the coverage of amended Section 2, especially given that Congress 

broadened the statute in 1982 so that a showing of intent as required 

in litigation under the Fourteenth and Fifteenth Amendments would 

not be necessary. 

Moreover, the Senate Report cites a 1977 en banc decision of the 

Fifth Circuit in a successful vote dilution challenge to districts 

used to elect county boards of supervisors and justices of the peace 

(who are trial judges in Mississippi). See S. Rep. at p. 29 n.114, 

31 n.121, citing Kirksey v. Board of Supervisors of Hinds County, 

554 F.2d 139 (5th Cir.) (en bane), cert. denied, 434 U.S. 968 

(1977) (see 554 F.2d at 140 n.1 for description of offices at issue in 

Kirksey). See also, e.g., United States v. Board of Supervisors of 

Forrest County, 571 F.2d 951, 956 n.9 (5th Cir. 1978) (noting that 

districts at issue in vote dilution challenge were used to elect justices 

of the peace, among other officials). These and other vote dilution 

suits dealing with county boards of supervisors and justices of the 

peace in Mississippi were also specifically discussed in the testi- 

mony of several witnesses at the House and Senate hearings. See 

Part 1.C, infra, for a discussion of this testimony.  



  

14 

To the contrary, the available legislative history sup- 
ports the proposition that all elections, including judicial 
elections, remain within the coverage of amended Sec- 
tion 2. As stated in the Senate Judiciary Committee re- 
port accompanying the 1982 amendment, Congress 
amended Section 2 in order “to prohibit any voting prac- 

tice, or procedure [that] results in discrimination” with- 

out regard to whether there is proof of discriminatory in- 
tent. S. Rep. 97-417, 97th Cong. 2d Sess. 2 (1982), re- 
printed in 1982 U.S. Code Cong. & Adm. News 177, 179 
(emphasis added). See Thornburg v. Gingles, 478 U.S. at 
43. While various lower court opinions? and the briefs 
of some of the parties in this Court discuss other aspects 
of the legislative history, amici focus here particularly 
on the congressional hearings held on the 1982 extension 
and amendment of the Voting Rights Act.® 

In interpreting the Voting Rights Act, this Court has 
looked to the purposes of the Act and the forms of dis- 
crimination it was designed to remedy, including those 
described in the testimony of witnesses during the con- 
gressional hearings. See, e.g., Perkins v. Matthews, 400 
US. 379, 387-3839 (1971); Alen ». State Board of 
Elections, 393 U.S. 544, 563-569 (1969). At the 1981 
and 1982 congressional hearings in both the House and 
the Senate, numerous minority witnesses and representa- 

tives of civil rights organizations testified about dis- 
crimination in judicial elections, presented examples of 

how vote dilution hampered the election of minority 

7 See, e.g., Mallory v. Eyrich, 839 F.2d at 278-80. 

8 Extension of the Voting Rights Act: Hearings on H.R. 1407, 

HR. 1731, HRB, 3112, HE. 3193, H.R. 3473, and H.R. 35,95 Before 

the Subcomm. on Civil and Constitutional Rights of the House 

Comm. on the Judiciary, 97th Cong., 1st Sess. (1981) (“House hear- 

ings”); Yoiing Rights Act: Hearings on S. 53,:8. 1761, S. 1975, 

S. 1992, and H.R. 3112 Before the Subcomm. on the Constitution 

of the Senate Comm. on the Judiciary, 97th Cong. 2d Sess. (1982) 

(“Senate hearings”). 

   



  

15 

judges, and articulated the need for better minority rep- 

resentation on the bench. 

Several of the witnesses gave testimony and state- 
ments concerning extensive pre-Bolden litigation over di- 
lution of black voting strength in the drawing of dis- 
tricts used to elect Mississippi county supervisors, justice 
court judges (justices of the peace), constables, county 
school board members, and county election commissioners.® 

Mississippi State Senator Henry J. Kirksey described the 
outcome of one such lawsuit in 41-percent black Warren 
County, Mississippi, to respond to Senator Metzenbaum’s 
questions concerning whether the use of the “results” test 
prior to City of Mobile v. Bolden, 446 U.S. 55 (1980), 

had resulted in “proportional representation”: 

In 1979, the Federal district court ordered into effect 
a plan which resulted in the election of one black 
county supervisor, one black justice of the peace, and 
two black constables—the first black elected officials 
in Warren County since reconstruction. Since there 
are five supervisors, justices of the peace, and con- 
stables from each district, we clearly did not obtain 
proportional representation. 

Senate hearings at 669. Referring to this same litigation, 
a statement submitted by Robert M. Walker, Field Di- 
rector of the Mississippi NAACP, noted that as a result 

of the litigation “a Black supervisor, a Justice Court 
judge and two constables were elected, giving Black War- 
ren countians representation for the first time since the 

19th century.” House hearings at 2648.1 

9 In Mississippi, justice court judges, formerly known as jus- 

tices of the peace, are judicial officers at the trial court level. 

10 See also House hearings at 1745 (testimony of Senator Kirk- 

sey in response to questioning by Representative Don Edwards, 

House Subcommittee Chairman, explaining that “we are able to 

elect two county supervisors, two justices of the peace, and some 

other officers” as a result of voting rights litigation in Hinds 

County, Mississippi).  



    

16 

Amicus Lawyers’ Committee for Civil Rights Under 
Law submitted a report to both the House and Senate 

subcommittees which included a detailed description of 
the Mississippi lawsuits over county districting and made 
numerous specific references to the impact of the law- 
suits on county justice of the peace elections.!* The Sen- 
ate Judiciary Committee Report cites one of these law- 
suits in which the Fifth Circuit held that discriminatory 
lines used to elect county boards of supervisors, justices of 
the peace and other county officials were unlawfully dilu- 
tive of black voting strength. 

The hearings included examples of the difficulties faced 

in electing minorities to judicial office. A witness repre- 
senting amicus MALDEF helped document the continuing 
impact of race in electoral politics by describing in detail 
how the local Democratic committee in Aransas County, 
Texas, engineered the election of a deceased person as 
justice of the peace in order to prevent the election of the 
first Mexican-American to that office.”® Full-page news- 
paper advertisements, reprinted in the House hearings 
transcript, advised voters: 

THE NAME OF LAWRENCE MILLER, Candidate 
for Justice of the Peace, Precinct 1, will be on the 
Democratic Ballot on May 6th. You are entitled to 

11 Report of the Lawyers’ Committee for Civil Rights Under 

Law, Voting in Mississippi: A Right Still Denied, reprinted in 

House hearings at 499, 516-28. See also Senate hearings at 673 

(prepared statement of Sen. Kirksey, noting submission of report 

to Senate subcommittee), 1228 (prepared statement of Frank R. 

Parker, Esq., summarizing report). The report is cited at several 

points in the Senate Report accompanying amended Section 2. 

See 8. Rep. at 10 n.21; 10 n.22;.13 n.35; 51 n.177. 

12 Kirksey v. Board of Supervisors of Hinds County (cited in 

8S. Rep. at 29 n.114, 31 n.121). 

13 House hearings at 930 (testimony of Joaquin Avila, Esq., of 

amicus MALDEF). See also id. at 940-42 (prepared statement of 

Avila) ; 1253 (testimony of Ruben Bonilla, president of petitioner 

LULAC, describing same election). 

 



  

17 

vote for him even though he is now deceased. If 
Judge Miller receives a majority of the votes cast, 
the Aransas County Democratic Committee will con- 
vene and select a nominee whose name will be certi- 
fied to be placed on the General Ballot for November. 

House hearings at 1010. Moreover, witnesses specifically 

noted the adverse effect of at-large judicial elections on 

the potential for minority electoral success. Mississippi 
NAACP Field Director Robert Walker described an at- 
tempt by the Mississippi legislature to change from dis- 
trict-based to at-large justice court elections, and stated 
“l[i]lf accepted, this obvious attempt to dilute the Black 
vote would set this State back 100 years.” House hear- 
ings at 2647. Mississippi State Representative Fred 
Banks decried this same effort to establish “an at-large 
system for the election of justices who are now elected 
by district in the counties.” House hearings at 550. The 
record also contains references to the role played by 
polarized voting in judicial elections. 

Witnesses also testified about minority aspirations to 
judicial office in the context of the Voting Rights Act. 
From the first black elected state judge in majority- 

black Sumter County, Alabama, Honorable Eddie Harda- 
way, Jr., Congress heard about the importance of the 
Act in terms of the racial integration of the bench: 

14 F.g., House hearings at 949 (prepared testimony of Avila, 

describing how a minority candidate for a Texas Court of Appeals 

judgeship was defeated by racially polarized voting in a 1980 

election) ; Senate hearings at 306 n.33 (prepared statement of 

Vilma Martinez, President and General Counsel of MALDEF, not- 

ing that evidence of polarized voting in justice of the peace elec- 

tions was submitted to the court in Seamon v. Upton, E.D. Tex. 

No. P-81-49-CA, the Texas congressional reapportionment chal- 

lenge) ; House hearings at 260 (prepared statement of Dr. James 

W. Loewen, Associate Professor of Sociology, University of Ver- 

mont, referring to racial polarization in an Alabama judicial 

race).  



    

18 

I sit here today, as living proof that a poor, rural 
black country boy in Alabama can, as a result of the 
Voting Rights Act, be elected to public office. With- 
out a Voting Rights Act, there is no doubt in my 
mind that I would not be the district judge of Sum- 
ter County. 

House hearings at 825.1% See also House hearings at 571 

(testimony of Bennie Thompson, contrasting fairness in 

the administration of justice before and after his election 
as mayor and judge of Bolton, Mississippi, in response to 
questioning by Rep. Edwards). 

Witnesses made it clear that judicial elections were 

considered an important target for efforts to increase 
minority representation in elected office. Describing of- 

fices being targeted by black candidates in Sumter 
County, Alabama, Judge Hardaway stated: 

In 1982, most major offices in county government will 
be up for grabs. That is, the probate judge, tax 
assessor, tax collector, circuit clerk, sheriff, and three 
county commission [ers] will be up for re-election. 
As it now stands, there is a strong possibility that 
blacks may be elected to some of these positions. 

House hearings at 825. Adolfo Alvarez, a Frio County, 
Texas commissioner, told the House subcommittee that 
“[blecause of the existence of the Voting Rights Act and 
our work in the comunity, we now have two Mexican 

American county commissioners and three Mexican Amer- 
ican justices of the peace out of four.” Id. at 1188. 

Additional witnesses pointed to the lack of minority 
representation on the bench as an evil that had per- 
    

15 See also Senate hearings at 748 (testimony of Abigail Tur- 

ner, Esq., referring to Judge Hardaway’s election). 

16 As Mr. Thompson explained, in towns under 10,000 in Mis- 

sissippi at the time, the mayor also served as city judge. Under 

the Fifth Circuit’s holding, elections would be covered by Section 

2 only with respect to the mayor’s office and not with respect to 

the judicial position. 

 



19 

sisted despite advances made under the Voting Rights 
Act to date. George State Senator Julian Bond noted 
that “even though Blacks now represent over 26 percent 
of the Georgia population, they continue to be underrep- 
resented in the halls of the General Assembly, the City 
Halls, the County courthouses, and the Judicial Chambers 

of our state.” Id., p. 234 (prepared statement). Profes- 
sor Brian Sherman, in discussing evidence of “low or no 
[black] representation in county government” in 

Georgia, pointed out that ‘“[o]f the 47 counties for which 

we have information, only 1 reports the election of a 
black judge to superior court since the passage of the 

Voting Rights Act.” House hearings, p. 574." 

These references in the hearings to judicial elections 
are consistent with the understanding that the Voting 
Rights Act and its provisions, including Section 2, cov- 
ered all elections. No witness and no member of Congress 
at any time suggested that judicial elections should be 
excluded from Section 2’s coverage. All of this belies 

the notion that Congress intended to narrow the Act to 
exclude judicial elections at the same time it was broad- 
ening the Act to better protect the victims of racial dis- 
crimination. 

II. NOTHING INDICATES CONGRESS INTENDED 

SECTION 2 TO APPLY ONLY TO ELECTIONS FOR 
APPELLATE COURT JUDGES AND NOT TO ELEC- 
TIONS FOR TRIAL COURT JUDGES. 

Part I of Judge Higginbotham’s concurring opinion 
concluded that Congress intended to include judicial elec- 
tions within the ambit of Section 2. In Part II, however, 

17 See also Voting in Mississippi: A Right Still Denied, re- 

printed in House hearings, at 503 (listing numbers of blacks 

elected to Mississippi Supreme Court, county courts, and justice 

courts as of 1980). For additional references to judicial elections 

in the House and Senate hearings, see House hearings at 38, 

193, 239, 230, 502, 763, 304, 306,.937, 1182, 1205, 1515, 1528, 

1535, 1839; Senate hearings at 777, 788-89.  



  

20 

that opinion concluded that while elections for appellate 
court judges are covered, elections for trial judges are 
not. That portion of the opinion did not discuss the 
language of the statute or congressional intent, and is, 

at most, an explication of what its sponsors believe Con- 
gress should have intended with respect to Section 2 and 
trial judges. As to the real issue of what Congress did 
intend, there is absolutely no indication of a desire to 

include elections for appellate judges while exempting 
elections for trial judges from Section 2’s coverage. As 
demonstrated in Part I of this brief, the language, pur- 
pose and legislative history establish that no elective of- 
fice or category of elections is excluded from the scope 
of Section 2. Indeed, the fact that Section 5 covers elec- 

tions for trial judges, see Georgia Board of Elections v. 
Brooks, also makes it highly unlikely Congress intended 
to exclude trial judges from the coverage of Section 2. 

The concurrence concluded that the state interests be- 
hind retaining electoral districts geographically co- 
extensive with trial court jurisdiction are so compelling 
that they always outweigh the interests Congress sought 
to protect with Section 2, and are therefore immune from 
Section 2’s ban on racial discrimination. 

We are persuaded that, for purposes of the Voting 
Rights Act, because the fact and appearance of in- 
dependence and judicial fairness are so central to the 
judicial task, a state may structure its judicial offices 
to assure their presence when the means chosen are 
undeniably directly tailored to the objective. The 
choice of means by Texas here—tying elective base 
and jurisdiction—defines the very manner by which 
Texas’ judicial services are delivered at the trial 
court level . . . . Stated in traditional Fourteenth 
Amendment terms, there is compelling necessity suf- 
ficient to overcome the strict scrutiny of state acts 
impinging upon a fundamental interest. 

914 F.2d at 646. This is a critique of the potential 

remedy of subdistricting, by which judges are elected 

   



  

21 

from subdistricts within a judicial district and hear 
cases from throughout the district. With subdistricts, 
there would be, in the words of the concurrence, no “tying 
[of] elective base and jurisdiction.” Sections C and D 
of part II of Judge Higginbotham’s opinion are largely 
a discussion of what he perceives to be the drawbacks 

of subdistricting. The concurrence cited the so-called 

‘“single-member office” exception articulated in Butts v. 
City of New York, 779 F.24 141 (24 Cir. 1985), cert. 
denied, 478 U.S. 1021 (1986), in support of the exclu- 

sion of trial judges from Section 2’s coverage. 

This section of the brief will first discuss how any 
state interests that purportedly underlie at-large trial 
judge elections can be accommodated within the context 
of Section 2 enforcement inasmuch as remedies other than 
subdistricting are available. Second, it will demonstrate 
that even if subdistricting were the only remedial option, 
the state’s interests would not be threatened. Third, it 
will show the inapplicability of any ‘‘single-member office 
exception.” Finally, it will discuss Judge Higginbotham’s 
mistaken focus on responsiveness and his failure properly 
to consider the congressional purposes manifest in Section 
4 

A. The Appropriateness of Subdistricting as a Remedy 

Is Irrelevant to the General Applicability of Section 

2 Inasmuch as a State May Choose Remedies Other 

Than Subdistricting That Adequately Protect Any 

Interests It Has in At-Large Trial Court Elections. 

Even if Judge Higginbotham’s belief about the unde- 
sirability of subdistricting were correct, that has nothing 
to do with the general applicability of Section 2 to elec- 
tions for trial judge. Other remedies are available to the 
states that can protect any interests a state may have in 

retaining a congruence between electoral base and juris- 
diction. 

The matter of the appropriate remedy in a vote dilu- 
tion case is first left to the responsible state officials.  



  

22 

White v. Weiser, 412 U.S. 783, 794-95 (1973). Those 
officials could choose from a number of options, any of 

which would hold out the promise of remedying racial 
discrimination yet retaining a coextensiveness between 
electoral base and jurisdiction. The options include “lim- 
ited voting,” which maintains at-large elections but alters 
other election features—the main alteration being a re- 
duction in the number of votes available to each voter— 
to prevent white voters from sweeping all of the seats and 
to give minority voters an opportunity to elect candi- 
dates of choice to some of the judgeships. See Dillard v. 
Town of Cuba, 708 F. Supp. 1244 (M.D. Ala. 1988) (ap- 
proving a consent decree adopting limited voting as a 
remedy in a Section 2 challenge to at-large elections) ; 
Karlan, “Maps and Misreadings: The Role of Geographic 
Compactness in Racial Vote Dilution Litigation,” 24 
Harv. C.R.C.L. 173, 223-31 (1989). They include “cumu- 
lative voting,” which retains at-large elections and per- 
mits each voter to have as many votes as there are seats, 
but allows the voter to cast multiple votes for a single 
candidate. Id. at 231-36. They include the creation of 

smaller and racially fair judicial election districts within 
a pre-existing district, with cases arising from the new 
election districts assigned only to judges chosen from 
those election distriets (with judges, of course, being able 
to help out with overloaded dockets of judges from other 
election districts just as visiting judges do now in Texas 
and most other states).'® The remedial options might in- 
clude, in a given case, the realignment of counties among 

existing judicial districts to change the demographics of 

18 The LULAC majority and concurring opinions assumed that 

all subdistricting systems, and all remedial election districts, would 

necessarily be ‘“single-member.” 914 F.2d at 623 (majority opin- 

ion); id. at 633 (Clark concurrence); id. at 649-51 (Higgin- 

botham concurrence). That is not the case. Particularly in urban 

areas, it is frequently possible to draw majority black or Hispanic 

election districts that are multi-member and would elect several 

judges. 

   



  

23 

the districts, with judges hearing cases arising only from 
their realigned district. See SCLC v. Siegelman, 714 F. 
Supp. 511, 512 (M.D. Ala. 1989) (challenging the bound- 

ary lines between existing judicial districts). 

Of course, the initial choice as to the best form of 
electing judges in the wake of a finding of a Section 2 
violation belongs to the states themselves. In the weigh- 

ing of the various state interests, some may choose sub- 
districting and some may choose other remedies. At the 
present time, the only issue before this Court is whether 

Section 2 is generally applicable. The appropriateness of 
subdistricting in light of any countervailing state inter- 
ests is not an issue before this Court, and should be ad- 

dressed only if and when it is. 

B. Even If the Appropriateness of Subdistricting Were 

Somehow Relevant, the State Interests Identified 

by the Concurring Opinion Would Not Be Infringed 

by Subdistricting and Do Not Outweigh the Congres- 

sional Purpose of Eliminating Discrimination in 

Elections. 

Even if the concurrence’s view of the appropriateness 

of subdistricting were relevant, it is based upon asserted 

state interests that would not be infringed by subdistrict- 
ing. Before discussing those, it is important to note that 
Congress, in amending Section 2, said the state’s policy 
behind a particular electoral system is only one of many 

factors to be considered. S. Rep. at 29 and n. 117. The 
Senate Report—which this Court has said is the “authori- 

tative source” for determining the congressional intent 
behind Section 2, Thornburg v. Gingles, 478 U.S. at 43, 
n.7—made it abundantly clear that the application of a 

state’s policy in support of a given election system “would 

not negate a plaintiff’s showing through other factors 

that the challenged practice denies minorities fair access 
to the process.” S. Rep. at 29, n. 117. Certainly, if state 
policy cannot vitiate an otherwise successful Section 2 
case, neither can it banish a whole category of elections  



  

24 

from the scope of Section 2 without some congressional 
indication that the category is excluded. 

The state interest that Judge Higginbotham believed 
would be unalterably compromised by subdistricting is 
what he called “the fact and appearance of independence 
and fairness.” 914 F.2d at 646. However, nothing sug- 
gests that judges elected from subdistricts would be less 

independent and fair than judges elected from the cur- 
rent system. It would be racially insulting for the State 
of Texas to believe that judges elected by minority voters 

will be less independent and fair than the current judges, 
almost all of whom are white and are elected by white 
voters with little say from minority citizens. Indeed, if 
there is any unfairness, it comes from the present system 

that robs minority voters of an equal vote, and perpetu- 

ates a nearly all-white judiciary in the midst of a multi- 
racial society. 

Also, the state has no basis to contend that a judge 
elected from one subdistrict would be biased, or would 

appear biased, in a case involving a litigant from his or 

her subdistrict and a litigant from another. If Texas 

were concerned about that, it would not allow, for in- 

stance, a judge from Dallas to sit in a case in which 
  

19 Judge Sam Johnson’s dissent from the Fifth Circuit decision 

in LULAC demonstrates that Texas does not really believe its 

state interests are unalterably compromised by subdistricting. As 

Judge Johnson states, the Texas Constitution authorizes subdis- 

tricting for justices of the peace and subcounty districts for dis- 

trict courts. 914 F.2d at 669 (Johnson, J., dissenting). Moreover, 

it should be noted that the district court in LULAC found the 

state’s asserted interests to be unpersuasive. That is a finding of 

fact subject to the clearly erroneous standard of Rule 52, F.R. 

Civ.P.; Thornburg v. Gingles, 478 U.S. at 77-79. The United 

States, as amicus curiae in the en banc Fifth Circuit, said “there 

is evidence in this record which undermines the notion that a 

remedy which would create subcounty districts would result in 

biased decisionmaking or even the appearance of biased decision- 

making.” Supplemental Brief for the United States as Amicus 

Curiae, LULAC v. Mattox, No. 90-8014 (5th Cir.). 

   



25 

one litigant is from Dallas and the other from Houston. 

No such prohibition exists in state law. 

What the state does know is that under a remedial 
plan minority voters would have a better opportunity to 

elect candidates of their choice to office, and that some 

of those candidates would most likely be minorities. But 
an objection to the application of Section 2 based on such 

considerations would be intolerable. 

Judge Higginbotham also contended that the legitimacy 

of judicial decisions might come into question because a 

judge elected from a portion of the county would be 

making decisions “for the county as a whole.” 914 F.2d 
at 650. This implies that no decision of a trial judge 
is legitimate unless it is made by a judge chosen by all 

of the voters. If that were the case, visiting judges 
would never be allowed to hold court in an area from 

which they were not elected. Retired judges would never 
be allowed to step in to help out with overload dockets 
because the voters had not elected them to a current 
    

20 Judge Higginbotham’s opinion said the State eliminated the 

appearance of bias in the present system by creating an elaborate 

set of rules controlling venue. He also said that no similar system 

of venue rules exists for subdistricts. 914 F.2d at 651. The point 

about venue rules is that they provide a set of neutral guidelines 

to determine whether the case should be tried in one district or 

another (and before a judge from one district or another), thus 

preventing arbitrary decisions about the matter to be made by 

someone interested in favoring one litigant over the other. In a 

subdistricting system, as under the present system, there would be 

a neutral system of assigning cases to judges, thus preventing 

arbitrary case-assignment decisions from being made by someone 

interested in favoring one litigant over the other. Once a decision 

regarding venue is made according to neutral guidelines, the 

State of Texas has indicated no concern about having a judge 

elected in Dallas hear a case involving one litigant from Dallas 

and another from Houston. Similarly, once a case assignment is 

made according to neutral guidelines, the State will have no dif- 

ficulty with a judge elected out of one subdistrict hearing a case 

involving one litigant from that subdistrict and one from another.  



  

26 

term. Interim judges could not be appointed to fill va- 
cancies prior to an election.?* Thus, it is clear that the 

state’s interest in the legitimacy of judicial decisionmak- 
ing would not be impaired by subdistricting. 

All of this indicates that, even if subdistricting were 

the issue before this Court, the state’s interests would 

not be undermined by the use of a subdistricting remedy. 

C. No “Single-Member Office” Exception Removes Trial 

Judges from the Coverage of Section 2. 

The reasoning of the “single-member office” exception 

articulated by a 2-1 panel majority of the Second Cir- 
cuit in Butts v. City of New York has never been adopted 
by this Court, and it seems doubtful it would be.?> Even 
if it were, it is inapplicable here. By its own terms, the 
Butts ‘‘single-member office” exception applies only to 
offices of which there is one office holder in the jurisdic- 
tion, such as a mayor. This notion is applicable to at- 
large elections only in the logical sense that a mayor 
cannot be elected other than at-large. 

21 Subdistricts were adopted as a court-ordered remedy in the 

Secton 2 case involving trial judges in Mississippi, Martin wv. 

Mabus, 700 F. Supp. 327 (S.D. Miss. 1988). A number of black 

judges were elected as a result, but there is no evidence that 

the Mississippi judicial system has suddenly become infused with 

a threat to what Judge Higginbotham called “the fact and appear- 

ance of independence and fairness.” 

  

22 In Butts, the panel majority said runoff requirements for 

what it called “single-member offices,” such as mayor, may not 

be challenged under Section 2. This holding is inconsistent with 

the language of Section 2 and the legislative history. As the 

Solicitor General has stated, the language of Section 2 makes no 

exception for majority vote runoff requirements “either for single 

member offices or other types of elected positions.” Brief for the 

United States as Amicus Curiae in Whitfield v. Clinton, No. 90- 

383 (pet. for cert. denied 2/25/91), at 11. The Senate Report 

accompanying the 1982 amendment indicates that Section 2 applies 

to majority vote runoff requirements. S. Rep. at 6, 10, 22, 29-30. 

Thus, it is doubtful that Butts was correct when it said runoff 

requirements for “single-member offices” are immune to Section 2. 

   



277 

By contrast, there are a number of trial judges elected 

in each of the challenged judicial election districts in 
Texas. It is not necessary that they all be elected by an 

at-large, winner-take-all system. The fact that they often 

exercise decisionmaking power by themselves does not 
make them ‘“single-member offices” for purposes of elec- 
tton. Under the Voting Rights Act, it is the electoral 
structure that is important, and Congress has never in- 
dicated that the function of the office can insulate ra- 
cially exclusionary election schemes from challenge. If 
function could preclude coverage of the Act, discrimina- 

tory at-large elections for city commissions, in which 
each commissioner exercises independent decisionmaking 

authority over a particular area of city operations, might 

be shielded from challenge. See, e.g., Buchanan v. City 
of Jackson, 708 F.2d 1066, 1067-68 (6th Cir. 1983). 
That has never been the law. 

The “single-member-office’” argument, then, as applied 
to judicial districts that have multiple judgeships, is 
merely another way of expressing the conclusion that 

trial judges should not be elected from subdistricts. This 
remedial concern, again, is not dispositive of Section 2’s 
coverage. 

D. The Concurrence Failed to Consider the Interests 

in Non-Discriminatory Elections That Congress 

Attempted to Further Through Section 2, and In- 

stead Focused Exclusively on the Issue of Respon- 

siveness. 

Judge Higginbotham’s balancing of the state’s alleged 
interests was further skewed by his failure to perceive 
the true nature of the countervailing interests in non- 

discriminatory elections that Congress has sought to vin- 
dicate through Section 2. The Higginbotham concurrence 
embraced the erroneous notion that Section 2’s sole func- 
tion is to increase minority impact on the day-to-day de- 

cisions of governmental officials, including judges, and 
concluded that subdistricting would not help most mi-  



  

28 

nority litigants appear in front of minority judges. 914 
F.2d at 649-50.% 

To the contrary, Section 2’s purpose is not simply to 
increase the extent to which minority interests are con- 
sidered in government decisions—in this instance, deci- 

sions involving individual litigants—but is to give mi- 

nority voters a fair opportunity to elect candidates “of 
their choice” (to use the language of Section 2). When 

voters—be they white, black or Hispanic—vote for ju- 
dicial candidates, they rarely vote in the expectation that 
they someday will appear as litigants before the judges 

who are elected. Instead, they vote for the candidates 

they believe will do the best job of administering justice. 
The purpose of Section 2 is to give minority voters a 

meaningful voice in those electoral decisions. 

The legislative history of the 1982 amendment made 

it clear that the responsiveness of governmental officials 

to minority interests is a factor of secondary importance 

in Section 2 cases, and said that ‘“[u]nresponsiveness is 
not an essential part of plaintiff’s case” under Section 
2. S.. Rep. at 29 and n.116 (1982). Thus, even if mi- 
nority interests are already fully taken into account in 

governmental decisions, Section 2 prohibits an election 
system that denies minority voters an equal and fair 
opportunity to elect candidates of their choice. 

In summary, Judge Higginbotham is wrong to suggest 

that the state’s legitimate interests will be undermined 
by subdistricting. Moreover, he fails to balance those in- 
terests against the fundamental concern protected by 
Section 2, and that is the right of minority voters to 

elect candidates of choice free from racially discrimina- 
tory election structures. 

28 Of course, as a result of the present election districts, very 

few litigants, minority or white, appear in front of minority 

judges because there are so few. 

   



29 

III. NOTHING INDICATES CONGRESS INTENDED TO 
EXCLUDE FROM SECTION 2S COVERAGE AT- 
LARGE JUDICIAL ELECTIONS FROM DISTRICTS 
CO-EXTENSIVE WITH THE JURISDICTIONAL 
AREA SERVED BY THE JUDGES ELECTED. 

Judge Clark’s concurrence on behalf of himself is sim- 

ilar to Judge Higginbotham’s in that Judge Clark be- 
lieves the state’s interest in what he calls “due process 
neutrality” should immunize from Section 2’s coverage 
all elections from judicial districts that are geographi- 
cally coextensive with the jurisdictional area served by 
the judges elected. Judge Higginbotham would carry 
that principle forward to exclude all trial judge elec- 
tions. By contrast, Judge Clark would use it to exclude 

elections for both trial and appellate judges if the elec- 
tion district and the jurisdiction are coextensive, while 
he leaves open the possibility of a Section 2 challenge to 
an election district, either trial or appellate, smaller 
than the jurisdictional area served by the judge elected. 

There is absolutely no reason to believe Congress in- 
tended such an exception to Section 2’s coverage. One of 

the primary electoral devices Congress intended to com- 
bat with Section 2 is discriminatory at-large elections. 
S. Rep. at 30. Section 5, of course, covers at-large elec- 

tions where electoral base and jurisdiction are equivalent, 
and it is doubtful Congress intended to exclude from Sec- 
tion 2’s scope a type of election covered by Section 5. 
See Georgia Board of Elections v. Brooks. 

Moreover, Judge Clark’s view suffers from the same 
problems as Judge Higginbotham’s. They are both based 
on a belief that the election district and the jurisdictional 
area must be equivalent to insure what Judge Clark calls 
“due process neutrality.” As mentioned in the discussion 
of Judge Higginbotham’s opinion, that view erroneously 
assumes that subdistricting is the only available remedy. 
Also, as stated previously, it wrongly assumes that the 
state’s interest in due process neutrality will be under- 

mined by subdistricts even if they were the only available  



    

remedy, and it fails to consider the overriding congres- 

sional purpose of eliminating racial discrimination in all 

elections. 

For all of these reasons, Judge Clark’s reasoning, like 

Judge Higginbotham’s, provides no basis for sustaining 

the judgment below in the LULAC litigation. 

CONCLUSION 

For these reasons, the judgment of the court below in 

these cases should be reversed. 

LAUGHLIN MCDONALD 

NEIL BRADLEY 
KATHLEEN L. WILDE 

MARY WYCKOFF 

AMERICAN CIVIL LIBERTIES 

UNION FOUNDATION, INC. 

44 Forsyth Street, N.W., #202 

Atlanta, Georgia 30303 
(404) 523-2721 

ELIOT SHAVIN 

Counsel for 

AMERICAN JEWISH CONGRESS, 

Southwest Region 

3500 Oaklawn Avenue 
Dallas, Texas 75219 

(214) 522-2010 

March 4, 1991 

Respectfully submitted, 

ROBERT F. MULLEN 
DAviD S. TATEL 

Co-Chairs 

NORMAN REDLICH 

Trustee 
BARBARA R. ARNWINE 

FRANK R. PARKER 

ROBERT B. McDUFF * 

BRENDA WRIGHT 

JAMES HALPERT 
LAWYERS’ COMMITTEE FOR CIVIL 

RicHTS UNDER LAW 

1400 Eye Street, N.W. 

Washington, D.C. 20005 

(202) 371-1212 

ANTONIA HERNANDEZ 

JUDITH SANDERS-CASTRO 
MEXICAN AMERICAN LEGAL 

DEFENSE AND EDUCATION FUND 

634 South Spring Street 

Los Angeles, California 90014 

(213) 629-2512 

SAMUEL RABINOVE 
RiCcHARD T. FOLTIN 

AMERICAN JEWISH COMMITTEE 

165 East 56th Street 
New York, New York 10022 

(212) 751-4000 

* Counsel of Record 

 



  

a 

APPENDIX 

PUGH, PUGH '& PUGH 

ATTORNEYS AT LAW 

Robert G. Pugh 
Robert G. Pugh, Jr. 
Lamar P. Pugh 

December 28, 1990 

Honorable John V. Parker 

Chief Judge 
United States District Court 

Middle District of Louisiana 

707 Florida Street 

Baton Rouge, Louisiana 70801 

Re: Plaintiffs’ Motion to the Three-Judge Court To Pre- 
vent Judges from Holding Office in the Judgeships 
for Which No Candidate was Elected Because the 

Injunction of the United States Supreme Court 

Clark v. Roemer, No. 86-435, Section A 

U.S. District Court for the Middle District of 

Louisiana 

Dear Judge Parker: 

I have been able to determine that the only individual 

judges who might be affected by the outcome of the cap- 
tioned motion would be: 

Judge James H. Boddie, Jr. 
Fourth Judicial District, Division G 

Judge Arthur J. Planchard, Jr. 
Fourteenth Judicial District, Division E 

Judge Charley Quienalty 
Fourteenth Judicial District, Division G 

Commercial National Tower, Suite 2100 

333 Texas Street, Shreveport, Louisiana 71101-5302 
Telephone (318) 227-2270 ® Telecopier (318) 227-2273  



    

2a 

Judge Hawsey, who would have otherwise been affected, 

retired, he is no longer representing his former district, 
however, he is serving as an ad hoc judge without a 

district designation on a series of asbestos cases. 

By copy of this letter to Mr. McDuff and Mr. Johnson, 
I am advising him of my findings. 

Yours very truly, 

/s/ Robert G. Pugh 
ROBERT G. PUGH 

RGP/mp 

cc: Robert B. McDuff, Esquire 

Ernest L. Johnson, Esquire