Correspondence from Turner to Ganucheau (Clerk); Reply Brief for the United States

    U.S. Departuipt of Justice 

Civil Rights Division 

JPT:IG:pad 
DJ 166-32-63 

Gilbert F. Ganucheau, Clerk 
United States Court of Appeals 

for the Fifth Circuit 
600 Camp Street, Room 102 
New Orleans, Louisiana 70130 

Appellate Section 

P.O. Box 66078 

Washington, D.C. 20035-6078 

March 23, 1990 

Re: Chisom & U.S. V. Roemer, No. 89-3654  

Dear Mr. Ganucheau: 

Enclosed are seven copies of the Reply Brief for the United 
States. 

Sincerely, 

James P. Turner 
Acting Assistant Attorney General 

Civil Rights Division 

O_rt.0-vvuep-7 

Irving Gornstein 
Attorney 

Appellate Section 

By: 

/cc: Counsel of record 



3654  
IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

RONALD CHISOM, et al., 

Plaintiffs-Appellants 

and 

UNITED STATES OF AMERICA, 

Plaintiff-Appellant 

V. 

BUDDY ROEMER, et al., 

Defendants-Appellees 

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF LOUISIANA. 

REPLY BRIEF FOR THE UNITED STATES 

JOHN VOLZ JAMES P. TURNER 
United States Attorney Acting Assistant Attorney General 

JESSICA DUNSAY SILVER 
IRVING GORNSTEIN 
Attorneys 
Department of Justice 
P.O. Box 66078 
Washington, D.C. 20035-6078 
(202) 633-2195 



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

No. 89-3654 

RONALD CHISOM, et al., 

Plaintiffs-Appellants 

and 

UNITED STATES OF AMERICA, 

Plaintiff-Appellant 

V. 

BUDDY ROEMER, et al., 

Defendants-Appellees 

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF LOUISIANA 

REPLY BRIEF FOR THE UNITED STATES 

We argued in our opening brief that because of racially 

polarized voting and other factors, the State's use of a 

multimember district to elect two of its seven Supreme Court 

Justices deprives black voters of an equal opportunity to elect 

candidates of their choice. In contrast, if the multimember 

district is divided into two districts, blacks will have an 

opportunity to elect candidates of their choice from one of the 

districts. For the most part, the State's response to this 

argument tracks the district court's opinion. Since we have 

already addressed the errors in the district court's reasoning in 

our opening brief, we will not do so again. The State has made 

several additional arguments, however, that were not expressly 



- 2 - 

adopted by the district court. We reply to those arguments here. 

1. The State contends (Br. 25-26) that incumbency is the 

most important factor affecting the outcome of judicial 

elections. That contention is without merit. Of the outcome-

determinative elections subjected to analysis, 18 did not even 

involve an incumbent (Gov't Exh. 49 at 11). In these open-seat 

elections, black candidates received an average of 86% of the 

black vote and 16% of the white vote (ibid.). Even when 

incumbents have run, voting has been racially polarized. In the 

four elections in which a white incumbent sought reelection, the 

black candidate received an average of 59% of the black vote and 

19% of the white vote (id. at 11-12). And in the one election 

subjected to analysis in which a black candidate ran with the 

advantage of incumbency, he received 99% of the black vote, but 

only 13% of the white vote (Tr. 33; Stip. 78). This evidence 

shows that incumbency does not explain voting patterns in 

District 1. 

2. The State also argues that the amount of money a 

candidate spends is a critical determinant of voting behavior and 

that blacks can win elections in District 1 as long as they raise 

enough money (Br. 36-39). To support this argument, the State 

relies on Dr. Weber's report, which asserts that there is a 

correlation between campaign spending and electoral success (Br. 

39). The State's reliance on this report is misplaced. The 

report at most proves only that blacks who spend more money than 

their opponents can win elections in Orleans, where blacks 



- 3 - 

constitute an electoral majority (Deft. Exh. 1 at 29). The 

report does not suggest that blacks who outspend their opponents 

can achieve similar success in District 1, where blacks 

constitute an electoral minority. Indeed, the report does not 

even show that campaign funding is the key to black electoral 

success in Orleans. Of the 12 successful black candidates Dr. 

Weber included in his analysis, 5 actually spent less money on 

their campaigns than their opponents (Tr. 166). 

Moreover, as we have already discussed (Gov't Br. 36), 

because of socio-economic differences between blacks and whites, 

unless black candidates are able to raise money from whites, they 

will be less well financed than white candidates. Most whites, 

however, are unwilling to contribute money to black candidates 

(Tr. 97, 106). Thus, to the extent that campaign spending plays 

a role in determining the outcome of elections, it simply 

reinforces the conclusion that blacks do not have an equal 

opportunity to elect candidates of their choice. 

3. Finally, the State implies (Br. 7, 47) that the 

Department of Justice approved its use of a multimember district 

when it precleared the State's 1974 constitution under Section 5 

of the Voting Rights Act. The State is mistaken. Section 5 of 

the Voting Rights Act applies only to "changes" affecting voting. 

See 42 U.S.C. 1973c. Since the State had used District 1 as a 

multimember district since 1921, its inclusion in the 1974 

constitution did not constitute such a change (Stip. 24). 

Accordingly, in preclearing the 1974 constitution, the Department 



- 4 - 

of Justice did not consider, much less approve, the continued use 

of a multimember district. 

In any event, the question presented here is not whether 

the State illegally retained a multimember district in 1974; the 

question is whether the use of a multimember district results in 

vote dilution in violation of Section 2 today. As we have shown, 

the evidence compels a finding that it does. 

CONCLUSION 

The district court's judgment should be reversed, and the 

case should be remanded for the entry of appropriate relief. 

Respectfully submitted, 

JOHN VOLZ JAMES P. TURNER 
United States Attorney •Acting Assistant Attorney General 

JESSICA DUNSAY SILVER 
IRVING GORNSTEIN 
Attorneys 
Department of Justice 
P.O. Box 66078 
Washington, D.C. 20035-6078 
(202) 633-2195 



CERTIFICATE OF SERVICE 

On March 23, 1990, I mailed two copies of this brief to: 

Judith Reed 
NAACP Legal Defense Fund 
99 Hudson Street 
New York, New York 10013 

Roy J. Rodney, Jr. 
McGlinchey, Stafford, Mintz, 
Cellini & Lang, PC 
643 Magazine Street 
New Orleans, La. 70130-3477 

Robert Pugh 
Commercial National Tower 
Suite 2100 
333 Texas 
Shreveport, La. 71101-5302 

George Strickler, Jr. 
639 Loyola Street 
Suite 1075 
New Orleans, La. 70113 

Peter J. Butler 
201 St. Charles Avenue 
35th Floor 
New Orleans, La. 70170 

William P. Quigley 
901 Convention Center Blvd. 
Fulton Place 
Suite 119 
New Orleans, La 70130 

Moon Landrieu 
717 Girod 
New Orleans, La 70130 

Drz..01A44,  
Irving Gornstein 
Attorney