Boards and Commissions Highlights 1981- Present

    Ji• o 

No 88-327 

o 
ra/1/(e2e4 j 

• r70 

IN THE 
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1988 

BUDDY ROEMER, et_al., 

Petitioners, 

V . 

RONALD CHISOM, et al., 

Respondents. 

On Petition For A Writ of Certiorari 
To The United States Court Of Appeals 

For The Fifth Circuit 

BRIEF OF RESPONDENTS IN OPPOSITION 

JULIUS L. CHAMBERS 
*CHARLES STEPHEN RALSTON 
JUDITH REED 
SHERRILYN -A. IFILL 
99 Hudson Street 
16th Floor 
New York, N.Y. 10013 
(212) 219-1900 



PAMELA S. KARLAN 
University of Virginia 
School of Law 
Charlottesville, VA 22901 
(804) 924-7810 

C. LANI GUINIER 
Univ. of Pennsylvania 
Law School 
3400 Chestnut Street 
Philadelphia, PA 19104 
(215) 898-7032 

WILLIAM P. QUIGLEY 
Fulton Place, Suite 119 
901 Convention Ctr. Blvd. 
New Orleans, LA 70130 
(504) 524-0016 

ROY J. RODNEY, JR. 
643 Magazine Street 
New Orleans, LA 70130 
(504) 586-1200 

RON WILSON 
310 Richards Blg. 
837 Gravier Street 
New Orleans, LA 70112 
(504) 525-4361 

Attorneys for Respondents 

*Counsel of Record 



Ouestion Presented 

In amending section 2 of the Voting 

Rights Act of 1965, 42 U.S.C. § 1973, did 

congress intend to exempt from scrutiny 

racially discriminatory methods of 

electing state court judges? 



• 

12. 

Table of Contents 

Pacte  

Question Presented   

Table of Contents   ii 

Table of Authorities   iv 

Statement of the Case   2 

Summary of Reasons for Denying 
the Writ   8 

Reasons for Denying the Writ   10 

I. This Court Has Already 
Held that the Voting Rights 
Act Covers Judicial 
Elections   10 

Both Courts of Appeals That 
Have Considered the Question 
Have Concluded that Section 2 
Covers Judicial Elections   13 

III. The Language, Legislative 
History, and Executive Con-
struction of the Voting Rights 
Act Show that It Was Intended 
To Cover Judicial Elections  15 

A. The Language of the Act  15 

B. The Legislative History 17 

C. The 1982 Amendments   19 



S 

111 

D. The Executive Construction 
of Section 2   22 

IV. The Distinctive Nature of 
Judicial Offices Does Not 
Create a Certworthy Issue  23 

V. In Any Event, the Essentially 
Interlocutory Nature of this 
Case Makes It Inappropriate 
To Grant Certiorari   25 

Conclusion   26 



S S. 

iv 

Table of Authorities  

pages  

Cases 

Allen V. State Board of 
Elections, 393 U.S. 544 
(1969)   17 

Chisom v. Edwards, 839 F.2d 
1056 (5th Cir. 1988)   4,7,12,13,14 

Chisom V. Edwards, 659 F. Supp. 
183 (E.D. La. 1987), rev'd, 
839 F.2d 1056 (5th Cir. 1988)   7 

City of Mobile v. Bolden, 444 U.S. 
55 (1980)   18, 19 

Clark v. Edwards, No. 86-435-A 
(M.D. La. Aug. 15, 1988)   13 

Haith v. Martin, 618 F. Supp. 410 
(E.D.N.C. 1985) aff'd, 477 U.S. 
901 (1986)   14,18 

Kirksey V. Allain, 635 F. Supp. 
347 (S.D. Miss. 1986)   14 

Mallory v. Eyrich, 839 F.2d 275 
(6th Cir. 1987)   13,14 

Martin v. Allain, 658 F. Supp. 
1183 (S.D. Miss. 1987)   14 

Martin v. Haith, 477 U.S. 901 
(1986) 8,9,10,11 



Pages  

Thornburg V. Gingles, 478 U.S. 
4,6,19 30 (1986) 

United States v. Board of Commis-
sioners, 435 U.S. 110 (1978) .. 9 17,23 

Wells v. Edwards, 409 U.S. 1095 
(1973)   6 

Williams v. State Board of 
Elections, No. 88C-2377 (N.D. 
In. Aug. 4, 1988)   

Statutes  

Ark. Code. Ann. § 14-14-502(a)(2) 
(A)(i) 

Civil Rights Act of 1964, 42 
U.S.C. § 2000h   

Mass. Const. Pt. 2, Ch. I, 
§ I, Art. I   

Voting Rights Act of 1965 
as amended, § 2, 42 U.S.C  
§ 1973   

Voting Rights Act of 1965 
as amended, § 5, 42 U.S.C  
§ 1973c   

14 

24 

22 

24 

passim 

9,10,12,13 



• 

vi 

Pages  

Voting Rights Act of 1965 
as amended, § 14(c)(1), 
42 U.S.C. § 19731(c)(1)   15,16 

Other Materials  

S. Ct. Rule 21.1(a) 4 

H.R. Rep. No. 97-227 (1982)   11,20 

S. Rep. No. 97-417 (1982) .... 4,5,13,19, 
20,21 

S. Rep. No. 94-295 (1975)   21 

Southern Justice (L. Friedman 
ed. 1965)   19 

U.S. Commission on Civil Rights, 
The Voting Rights Act: Ten 
Years After (1975) 

U.S. Commission on Civil Rights, 
The Voting Rights Act: Unful-
filled Goals (1981) 

U.S. Dept. of Commerce, Bureau of 
the Census, Statistical Abstract 
of the United States 1986 (106th 
ed. 1985)   

21 

21 

21 

Voting Rights: Hearings Before 
Subcommittee No. 5 of the 
House Judiciary Comm. on H.R. 
6400 and Other Proposals To 
Enforce the Fifteenth Amendment 
to the Constitution of the 
United States, 89th Cong., 1st 
Sess. (1965)   17,18 



No 88-327 

IN THE 
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1988 

BUDDY ROEMER, et al., 

Petitioners, 

V . 

RONALD CHISOM, et al., 

Respondents. 

On Petition For A Writ of Certiorari 
To The United States Court Of Appeals 

For The Fifth Circuit 

BRIEF OF RESPONDENTS IN OPPOSITION 

Respondents Ronald Chisom et al.  

oppose the petition of Governor Buddy 

Roemer et al. for a writ of certiorari to 

review the opinion and judgment entered 

by the United States Court of Appeals for 

the Fifth Circuit on February 29, 1988. 



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Statement of the Case 

The Louisiana Supreme Court consists 

of seven justices who are chosen by popu-

lar election. Five of the seven justices 

are elected from geographically defined 

single-member districts. The other two 

justices are elected from the only multi-

member district--the First Supreme Court 

District. The First Supreme Court Dis-

trict contains Orleans, St. Bernard, Pla-

quemines, and Jefferson Parishes. Or-

leans Parish, which contains the city of 

New Orleans, is predominantly black in 

both total population and registered 

voters. The other three parishes are 

overwhelmingly white. Justices serve 

ten-year terms, and the election terms of 

the two justices from the First Supreme 

Court District are staggered. No black 

person has been elected to the Louisiana 



• 

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Supreme Court, either from the First 

Supreme Court District or from any of the 

other five districts, in modern times. 

Respondents Ronald Chisom, Marie 

Bookman, Walter Willard, Mark Morial, and 

Henry Dillon, III, are black registered 

voters in Orleans Parish, who represent a 

class of similarly situated persons. 

Respondent Louisiana Voter Registration/ 

Education Crusade is a nonprofit corpora-

tion active in voting rights issues in 

Orleans Parish. 

Respondents filed a complaint chal-

lenging the method of electing Louisiana 

Supreme COurt Justices from the First 

Supreme Court District. They alleged 

both that the present election scheme 

submerged Orleans Parish's predominantly 

black electorate in a majority-white, 

multimember district in violation of thern 

"results test" of section 2 of the Voting 



• 

-4-

Rights Act of 1965 as amended, 42 U.S.C. 

§ 1973, and that it violated the Four-

teenth and Fifteenth Amendments to the 

constitution of the United States because 

the purpose and effect of placing Orleans 

Parish in a multimember district was to 

dilute black voting strength. 1 

With regard to respondents' claim 

under section 2, the complaint alleged 

the following facts relevant to the 

"results" test: 2 & long history of offi-

1 Petitioners have not sought 
review in this Court of the holding of 
the Court of Appeals that respondents 
have stated a claim under the Fourteenth 
and Fifteenth Amendments. Chisom v. 
Edwards, 839 F.2d 1056, 1064-65 (5th Cir. 
1988) (App. to Pet. for Cert. 24-25). 
See this Court's Rule 21.1(a). 

2 The contours of the "results" 
test are contained in the Senate Report 
that accompanied the 1982 amendments. S. 
Rep. No. 97-417 (1982) [hereafter "Senate 
Report"]. This Court has termed the 
Senate Report an "authoritative source" 
for interpreting the results test. 
Thornburg V. Gingles, 478 U.S. 30, 43 n. 
7 (1986). 



• 

-5-

cial racial discrimination within the 

First Supreme Court District; widespread 

racially polarized voting within the 

First Supreme Court District; the socio-

economically depressed status of black 

residents of the First Supreme Court 

District; the low percentage of black 

elected officials within the First Su-

preme Court District, including the 

absence of any black justices on the 

Louisiana Supreme Court; and the lack of 

any state policy justifying the use of a 

multimember district in the Orleans 

Parish area when all other Supreme Court 

Justices were elected from single-member 

districts. 3 In addition, respondents 

3 The Senate Report contains a 
list of nine "[t]ypical factors" that may 
establish a violation of the results 
test. Senate Report at 28-29. The 
Report expressly states that "there is no 
requirement that any particular number of 
factors be proved, or that a majority of 
them point one way or the other." Id. at 
29. In their amended complaint, respon-



• 

-6-

alleged that it would be possible to 

create a single-member district consis-

ting of Orleans Parish that would be 

majority-black both in total population 

and in number of registered voters. See 

Thornburg v. Gingles, 478 U.S. 30, 50 

(1978). 4 

dents made allegations concerning the 
first, second, third, fifth, seventh, and 
ninth factors. 

4 Under this Court's decision in 
Wells v. Edwards, 409 U.S. 1095 (1973), 
summarily aff'g 347 F. Supp. 453 (M.D. 
La. 1972), the principle of one-person, 
one-vote does not apply to the districts 
used to elect members of the Louisiana 
Supreme Court. The 1980 population of 
the First Supreme Court District is 
1,102,253; the population of the largest 
single-member district is approximately 
861,000, while the population of the 
smallest is approximately 411,000. See 
App. to Pet. for Cert. 47. 

Respondents' complaint alleged that 
it would be possible to divide the pres-
ent First Supreme Court District into an 
overwhelmingly white district consisting 
of the three suburban parishes having a 
total population of 544,738, and a major-
ity-black district consisting of Orleans 
Parish having a population of 557,515. 
The Orleans Parish-based district would 
thus contain 50.58 percent of the popula-



-7-

In an opinion and order dated May 1, 

1987, and subsequently amended on July 

10, 1987, the United States District 

Court for the Eastern District of Louisi-

ana (Charles Schwartz, Jr., J.) granted 

petitioners' motion to dismiss respon-

dents' section 2 claims on the ground 

that section 2 does not cover judicial 

elections. Chisom V. Edwards, 659 F. 

Supp. 183 (E.D. La. 1987) (App. to Pet. 

for Cert. 28). 

On February 29, 1988, a unanimous 

panel of the Court of Appeals for the 

Fifth Circuit (John R. Brown, Sam D. 

Johnson, and Patrick E. Higginbotham, 

JJ.) reversed the judgment of the dis-

trict court and held that section 2 

applies to judicial elections. Chisom v. 

Edwards, 831 F.2d 1056 (5th Cir. 1988) 

tion of the current First Supreme Court 
District. 



• 

-8-

(App. to Pet. for Cert. 4). A subsequent 

petition for rehearing and suggestion for 

rehearing en banc was unanimously denied. 

Summary of Reasons for 
Denying the Writ  

The question whether section 2 of 

the Voting Rights Act applies to judicial 

elections does not warrant this Court's 

review. This Court has unanimously held 

that a complementary provision of the Act 

covers judicial elections. Martin v. 

Haith, 477 U.S. 901 (1986). The decision 

of the Court of Appeals in this case is 

consistent with this Court's holding in 

Martin; with the holding of the only 

other court of appeals to address the 

question whether section 2 covers judi-

cial elections, Mallory v. Eyrich, 839 

F.2d 275 (6th Cir. 1987); with the lan-

guage and legislative history of the 

Voting Rights Act; and with the Attorney 



-9-

General's interpretation of the Act, to 

which this Court has consistently given 

great deference, see, e.g., United States  

V. Board of Commissioners, 435 U.S. 110, 

131 (1978). 

Reasons for Denying the Writ  

I. 

THIS COURT HAS ALREADY 
HELD THAT THE VOTING 
RIGHTS ACT COVERS JUDICIAL 
ELECTIONS 

Petitioners refer to a number of 

cases involving challenges under the 

Voting Rights Act to judicial elections. 

Pet. for Cert. 6-9. They fail, however, 

to mention the most significant decision: 

this Court's summary, unanimous holding, 

in Martin v. Haith, 477 U.S. 901 (1986), 

that a complementary provision of the 

Voting Rights Act--section 5, 42 U.S.C. § 



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1973c--covers judicial elections. 5 

Section 5, which requires certain 

jurisdictions (including Louisiana) to 

obtain federal approval prior to imple-

menting any changes in their method of 

electing public officials, and section 2, 

which contains a nationwide ban on the 

use of election practices which result in 

the dilution of minority voting strength, 

were intended to be interpreted in tan-

dem. The House Report accompanying the 

1982 amendment of section 2 and extension 

of section 5 expressly stated: 

Under the Voting Rights Act, 
whether a discriminatory prac-
tice or procedure is of recent 

5 That holding effectively ans-
wers petitioners' ostensibly rhetorical 
question, "If a state, such as Louisiana, 
chooses to change its judicial selection 
process from an electoral system to one 
of appointment and/or merit, must it 
preclear such a change when most of the 
other forty-two states that elect judges 
need not preclear such a change?" Pet. 
for Cert. 5. Martin's precise holding is 
that the answer to that question is "Yes." 



-11-

origin affects on the mechanism 
that triggers relief, i.e., 
litigation [under section 2] or 
preclearance [under section 5]. 
The lawfulness of such a prac-
tice should not vary depending 
on when it was adopted. i.e.,  
whether it is a change. 

H.R. Rep. No. 97-227, p. 28 (1982) [here-

after "House Report"] (emphasis added); 

see also Senate Report at 5-6. 

If the lawfulness of an electoral 

practice does not vary depending on its 

date of adoption, then this Court's 

holding in Martin--that the adoption of a 

particular system for electing judges may 

be forbidden when that system has either 

the purpose or the effect of diluting 

black voting strength--necessarily re-

quires that the continued use of a par-

ticular system for electing judges must 

also be subject to scrutiny under section 

2. Under Martin, it is clear beyond 

dispute that if Louisiana now used a 

different system for electing judges, it 



-12-

could be forbidden from creating a multi-

member district containing Orleans Parish 

and three suburban, majority-white par-

ishes if that plan had the effect of 

diluting black voting strength. 6 The 

import of petitioners' argument therefore 

is that Louisiana's longstanding use of 

such a system should somehow be immune 

from attack under the Voting Rights Act. 

The Court of Appeals properly held that 

such a result would be "totally inconsis-

tent with the broad remedial purpose of 

the Act," 839 F.2d at 1064 (App. to Pet. 

6 Under section 5, a state cannot 
implement a change in its methods of 
electing public officials if the change 
would have either the purpose or the 
effect of diluting minority voting 
strength. 42 U.S.C. § 1973c. In section 
5 cases, the burden of proof lies on the 
submitting jurisdiction, whereas in 
section 2 cases, the plaintiffs bear the 
burden of proof. Thus, it is entirely 
possible in close cases that a state will 
be denied preclearance of a change which, 
if it had been the existing practice, 
private plaintiffs would be unable to 
attack successfully. 



-13-

for Cert. 23), which was to "create a set 

of mechanisms for dealing with continued 

voting discrimination, not step by step, 

but comprehensively and finally," Senate 

Report at 5. 

BOTH COURTS OF APPEALS 
THAT HAVE CONSIDERED THE 
QUESTION HAVE CONCLUDED 
THAT SECTION 2 APPLIES TO 
JUDICIAL ELECTIONS 

Petitioners seek to show the impor-

tance of this Court's granting certiorari 

by pointing out that states within eleven 

of the Circuits elect judges. Pet. for 

Cert. 10-11. That fact, however, pro-

vides no basis for granting certiorari 

here, in light of the now unanimous 

consensus among the lower courts that 

section 2 applies to judicial elections. 

See Chisom v. •Edwards, 839 F.2d 1056 (5th 

Cir. 1988); Mallory v. Eyrich, 839 F.2d 

275 (6th Cir. 1987); Clark v. Edwards, 



• 

-14-

No. 86-435-A (M.D. La. Aug. 15, 1988); 

Williams v. State Board of Elections, No. 

88C-2377 (N.D. In. Aug. 4, 1988); Martin 

V. Allain, 658 F. Supp. 1183 (S.D. Miss. 

1987); see also Kirksey V. Allain, 635 F. 

Supp. 347 (S.D. Miss. 1986) (three-judge 

court) (section 5 applies to judicial 

elections); Haith V. Martin, 618 F. Supp. 

410 (E.D.N.C. 1985) (three-judge court) 

(same), aff'd, 477 U.S. 901 (1986). In 

fact, the only two lower court judges to 

suggest that section 2 does not apply 

were both unanimously reversed by their 

respective courts of appeals in Chisom 

and Mallory. Thus, there is no conflict 

or confusion among the circuits. 



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THE LANGUAGE, LEGISLATIVE 
HISTORY, AND EXECUTIVE 
CONSTRUCTION OF THE VOTING 
RIGHTS ACT SHOW THAT IT 
WAS INTENDED TO COVER 
JUDICIAL ELECTIONS 

A. The Language of the Act 

By its terms, section 2 covers all 

elections. Section 2(a) contains an 

absolute prohibition on racial dis-

crimination in voting: 

No voting qualification or 
prerequisite to voting or 
standard, practice, or proce-
dure shall be imposed or ap-
plied by any State . . . in a 
manner which results in a 
denial or an abridgement of the 
right of any citizen of the 
United States to vote on ac-
count of race or color . 

42 U.S.C. § 1973(a) (emphasis added). 

Section 14(c)(1) of the Act, which de-

fines "voting" for purposes of the Act, 

convincingly shows that Congress intended 

for section 2 to reach all elections: 

The terms "vote" or "voting" 



-16--

shall include all action neces-
sary to make a vote effective 
in any primary, special, or 
general election, including, 
but not limited to, . . . 
having such ballot counted 
properly and included in the 
appropriate totals of votes 
cast with respect to candidates 
for public or party office and 
propositions for which voters 
are received in an election. 

42 U.S.C. § 19731(c)(1) (emphasis added). 

Thus, neither the substantive nor the 

definitional sections of the Act provides 

any exclusion from the Act's coverage for 

particular types of elections. Aspir-

ants for elective judicial positions are 

undeniably "candidates for public . • • 

office" and the procedures by which they 

attain those offices are undeniably 

"elections." Thus, section 2 by its 

terms outlaws schemes for electing judges 

that result in the denial or abridgment 

of equal voting strength for black citi-

zens. 



-17-

B. The Legislative History  

This Court has frequently noted 

Congress' "intention to give the Act its 

broadest possible scope." Allen v. State 

Board of Elections, 393 U.S. 544, 566-57 

(1969). The Act originated as H.R. 6400, 

a bill drafted by the Johnson Administra-

tion. This Court has recognized, "in 

light of the extensive role" that Attor-

ney General Nicholas Katzenbach "played 

in drafting the statute and explaining 

its operation to Congress," that great 

weight should be afforded his testimony. 

United States V. Board of Commissioners, 

435 U.S. at 131 & n. 20. Attorney Gene-

ral Katzenbach made clear, in response to 

questions from committee members, that 

"[e]very election in which registered 

electors are permitted to vote would be 

covered" by the Act. Voting Rights:  



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Hearings Before Subcommittee No. 5 of the 

House Judiciary Comm. on H.R. 6400 and 

Other Proposals To Enforce the Fifteenth 

Amendment to the Constitution of the  

United States, 89th Cong., 1st Sess. 21 

(1965). See also id. at 67, 121 (dis-

cussing how Act will reach all elec-

tions). As the three-judge court whose 

opinion this Court summarily affirmed in 

Martin explained, "the Act applies to all 

voting without any limitation as to who, 

or what, is the object of the vote." 

Haith v. Martin, 618 F. Supp. at 413 

(emphasis in original). 

Moreover, as this Court explained in 

City of Mobile v. Bolden, 444 U.S. 55, 61 

(1980) (plurality opinion), section 2 as 

enacted in 1965 "simply restated the 

prohibitions already contained in the 

Fifteenth Amendment . It defies 

belief to suggest that the Fifteenth 



• 

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Amendment does not cover judicial elec-

tions: 7 if that were so, then States 

would be free explicitly to restrict the 

franchise in judicial elections solely to 

white voters, and that cannot be the law. 

Thus, at its enactment, section 2 must 

also have covered judicial elections. 8 

C. The 1982 Amendments  

In 1982, Congress amended section 2 

to overturn the plurality holding in 

Bolden that section 2 required a showing 

of discriminatory purpose. Thornburg v. 

Gingles, 478 U.S. at 35; Senate Report at 

7 Indeed, petitioners do not -

press that point here. See supra note 1. 

8 Indeed, a major impetus for the 
passage of the Civil Rights Act of 1964 
and the Voting Rights Act of 1965 was the 
inability or unwillingness of elected 
state court judges in the South to pro-
tect the constitutional rights of black 
citizens. For an illuminating account of 
the treatment of black citizens by the 
elected state judiciary during the period 
immediately preceding the passage of the 
two Acts, see generally Southern Justice 
(L. Friedman ed. 1965). 



-20-

2. Petitioners' entire argument ul-

timately boils down to a claim that, by 

using the phrase "representatives of 

their choice" in explicating the results 

test, Congress intended to exclude judi-

cial elections from section 2. 

The legislative history simply does 

not support petitioners' claim. To the 

contrary, both supporters and opponents 

of amended section 2 assumed it covered 

judicial elections. Thus, the Senate and 

House Reports used the words "representa-

tives," "candidate," and "elected offi-

cial" interchangeably, see, e.g., Senate 

Report at 16, 28, 29, 30, 31 & 67; House 

Report at 4, 18, and relied, in discuss-

ing progress under the Act, on figures 

regarding the number of black elected 

officials that explicitly included elec-

ted judges, see, e.g., House Report at 7-

9; see also S. Rep. No. 94-295, p. 14 



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(1975). 9 Cf. Senate Report at 151 (mino-

rity views of Sen. Hatch) (section 2 

reaches "all governmental units, includ-

ing . . . judicial districts • . as 

well as state legislatures"). In light 

of these references and Congress' clear 

purpose--to expand the protection af-

forded black voters by section 2--it 

makes no sense to assume that Congress 

sub silentio removed judicial elections 

from scrutiny under section 2. 

9 The U.S. Commission on Civil 
Rights and the Bureau of the Census have 
similarly included minority jurists 
within their descriptions of minority 
elected officials. See, e.g., U.S. 
Commission on Civil Rights, The Voting 
Rights Act: Ten Years After 377 (1975); 
U.S. Commission on Civil Rights, The 
Voting Rights Act: Unfulfilled Goals 27-
28 (1981) (blacks were rarely elected to 
"law enforcement positions (including 
sheriffs and judges") (emphasis added); 
U.S. Dept. of Commerce, Bureau of the 
Census, Statistical Abstract of the 
United States 1986, at 252 (106th ed. 
1985). 



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D. The Executive Construction of 
Section 2  

As petitioners note, the Attorney 

General has certified this to be a case 

of general public importance. Pet. for 

Cert. 5. What petitioners fail to men-

tion is that he did so in the context of 

a motion by the United States to inter-

vene as a plaintiff in this lawsuit. See 

42 U.S.C. § 2000h-2 (conferring right of 

intervention on Attorney General when he 

certifies that an action seeking relief 

under the Fourteenth Amendment is of 

general public importance) .10 Paragraph 

13 of the United States' complaint in 

intervention alleges, as did respondents' 

complaint, that the current method of 

electing the two justices from the First 

Supreme Court District violates the 

10 The Solicitor General has also 
filed a Brief in Opposition to this 
petition for certiorari. 



-23-

results test of section 2. Thus, the 

Attorney General, to whose construction 

of the Act this Court has traditionally 

paid substantial deference, see, e.g., 

United States v. Board of Commissioners, 

435 U.S. at 131, has consistently taken 

the position that section 2 covers all 

elections and has expressly interpreted 

section 2 to cover judicial elections. 

IV. 

THE DISTINCTIVE NATURE OF JUDICIAL 
OFFICES DOES NOT CREATE 
A CERTWORTHY ISSUE 

The bulk of petitioners' argument 

revolves around the special functions 

performed by judicial officers to explain 

why such officials should not be viewed 

as representatives. That argument, 

however, misses the point. Louisiana has 

decided to fill its bench by allowing the 

State's voters to choose judges through 

popular elections. Thus, while judges 



-24-

may serve the public in a very different 

way than city council members, or state 

legislators, 11 the fact remains that 

Louisiana has concluded that judges are 

not so different from other public offi-

cials that elections are an inappropriate 

selection device. Having allowed all 

qualified voters to participate directly 

in the judicial selection process, the 

State cannot use a process that values 

the votes of white citizens and black 

citizens differently, by diluting the 

opportunity of black citizens to elect 

their preferred candidates. 

11 In any event, state nomencla-
ture cannot be allowed to dictate the 
scope of section 2's coverage. For 
example, under Arkansas law, the chief 
executive official of a county is the 
"county judge," Ark. Code. Ann. § 14-14-
502(a)(2)(A)(i), and in Massachusetts, 
the official name of the state legisla-
ture is the "General Court," Mass. Const. 
Pt. 2, Ch. I, § I, Art. I. 



-25-

V. 

IN ANY EVENT, THE ESSEN-
TIALLY INTERLOCUTORY 
NATURE OF THIS CASE MAKES 
IT INAPPROPRIATE TO GRANT 
CERTIORARI 

The Court of Appeals did not decide 

that Louisiana's present scheme for 

electing Supreme Court Justices from the 

First Supreme Court District violates 

either the Constitution or section 2. 

Nor did it decide that Louisiana must 

adopt single-member districts. All it 

decided was that respondents had stated a 

claim, which they should be given the 

opportunity to prove at tria1. 12 More-

over, because petitioners have not sought 

certiorari on the question whether the 

Constitution covers claims of racial vote 

dilution in judicial elections, this case 

will have to be tried regardless of 

12 Judge Schwartz has set the 
trial in this case for December 14, 1988. 



-26-

whether this Court grants certiorari and 

reverses on the question presented. 

Conclusion 

For the reasons stated, this Court 

should deny the petition for writ of 

certiorari. 

Respectfully submitted, 

JULIUS L. CHAMBERS 
*CHARLES STEPHEN RALSTON 
JUDITH REED 
SHERRILYN A. IFILL 
99 Hudson Street 
16th Floor 
New York, N.Y. 10013 
(212) 219-1900 

PAMELA S. KARLAN 
University of Virginia 
School of Law 
Charlottesville, VA 22901 
(804) 924-7810 

C. LANI GUINIER 
Univ. of Pennsylvania 
Law School 
3400 Chestnut Street 
Philadelphia, PA 19104 
(215) 898-7032 



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WILLIAM P. QUIGLEY 
Fulton Place, Suite 119 
901 Convention Ctr. Blvd. 
New Orleans, LA 70130 
(504) 524-0016 

ROY J. RODNEY, JR. 
643 Magazine Street 
New Orleans, LA 70130 
(504) 586-1200 

RON WILSON 
310 Richards Blg. 
837 Gravier Street 
New Orleans, LA 70112 
(504) 525-4361 

Attorneys for Respondents 

*Counsel of Record