Correspondence from Reynolds to Ganucheau; Response of the Amicus Curiae United States Relating to Appeal

    U.S. Department of Justice 

• Washington, D.C. 20530 

Official Business 
Penalty for Private Use $300 

Julius L. Chambers 
Charles Stephen Ralston 
C. Lani Guinier 
Judith Reed 
Palema S. Karlan 
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U.S. Department 

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U.S. Department Justice 

Civil Rights Division 

WBR:MLG:pad 
DJ 166-32-0 

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. 2W35-6078 

July 22, 1988 

Re: Chisom v. Edwards, No. 88-3492  

Dear Mr. Ganucheau: 

Enclosed find the original and three copies of the Response 
Of The Amicus Curiae United States To Questions Posed By This 
Court Relating To This Appeal and To Appellants' Motion for Stay 
Pending Appeal in the above captioned case. 

Sincerely, 

Wm. Bradford Reynolds 
Assistant Attorney General 

Civil ights Division 

By: 
Mark L. Gross 

Attorney 
Appellate Section 

cc: Counsel of record 

-----------------
011eteUmb 



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

No. 88-3492 

RONALD CHISOM, et al., 

Plaintiffs-Appellees 

V. 

EDWIN EDWARDS, et al., 

Defendants-Appellants 

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

RESPONSE OF THE AMICUS CURIAE UNITED STATES TO 
QUESTIONS POSED BY THIS COURT RELATING TO THIS APPEAL 

AND TO APPELLANTS' MOTION FOR STAY PENDING APPEAL 

On July 19, 1988, this Court asked the United States to 

respond to three questions regarding this appeal and appellants' 

motion for a stay pending appea1. 1/ In our view, the record 

presented to the district court supports the court's decision to 

enter preliminary relief, and appellants fail to demonstrate a 

basis for staying the district court's order pending a final 

decision on this appeal. Since appellants have shown no basis 

for overturning the court's injunction, there is no reason for 

1/ The United States has prepared the -papers for and intends to 
file a motion to intervene as a plaintiff in the court 
in the coming week. _ 



- 2 - 

this Court to stay the injunction to allow candidates to qualify 

to run. 2/ 

ARGUMENT 

I. APPELLANTS HAVE FAILED TO SHOW THAT THEY 
ARE ENTITLED TO A STAY OF THE DISTRICT COURT'S 
PRELIMINARY INJUNCTION. 

In order to secure a stay pending appeal, the appellants 

must demonstrate in this Court that they are likely to succeed 

on the merits of this appeal, that without the stay they will 

suffer irreparable injury, that the granting of the stay will 

not significantly harm other parties, and that it will serve the 

public interest. Fortune v. Molpus, 431 F.2d 799, 804 (5th Cir. 

1970); Ruiz v. Estelle, 666 F.2d 854, 856 (5th Cir. 1982). 

Alternatively, if appellants cannot show a likelihood of success 

on the merits, but show only that their position on the issue of 

violation has "patent substantial merit," Ruiz, supra, 666 F.2d 

at 857, they can still secure a stay if they can show that "'the 

balance of equities (i.e. consideration of the other three 

factors) is . . . heavily tilted in the movant's favor.'" Ibid.  

(emphasis in original) (citation omitted). Under either standard 

appellants have failed to show entitlement to a stay. 

A. Appellants Have Shown Neither Likelihood Of Success  
On The Merits Of This Appeal Nor Patent Substantial  
Merit to. Their Position.  

In order to Succeed on this appeal, appellants must prove 

that the district court abused its discretion in granting a 

2/ The United States' concern in this case -- and the scope of 
the dispute now before this Court, as we understand it _-- is 
currently limited to the two-judge First District. 



- 3 - 

preliminary injunction. EEOC V. Cosmair, Inc., L'Oreal Hair Care  

Div., 821 F.2d 1085, 1088 (5th Cir. 1987); Enterprise Int'l, Inc.  

v. Corporacion Estatal Petrolera, 762 F.2d 464, 472 (5th Cir. 

1985). But it is well-established in this Circuit that such 

relief is appropriate in cases like this one. Where, as here, 

plaintiffs file a prompt, pre-election challenge to voting 

procedures, a district court may, in exercising its equitable 

authority, enjoin scheduled elections in order to prevent further 

violations of voting rights. See, e.g., Hamer v. Campbell, 358 

F.2d 215, 221 (1966); Toney v. White, 476 F.2d 203, 209 (1973); 

see also Reynolds v. Sims, 377 U.S. 533, 585 (1964). 

Appellants fail to show that the district court erred when 

determining, based on the record before it, that plaintiffs were 

likely to prove that the electoral scheme for electing two judges 

from the First District violates Section 2 of the Voting Rights 

Act of 1965, as amended, 42 U.S.C. 1973. In fact, as the 

district court noted (Op. 20), appellants did not put on any  

evidence at all relating to proof of a Section 2 violation, and 

did not challenge the legal standard plaintiffs suggested be 

applied to that evidence. 

Appellants' only argument on the merits of this appeal is a 

challenge to this Court's decision that Section 2 applies to the 

election of judges, arguing that the Supreme Court may review 

this"case and reverse this Court's decision (Br. 13-14). As the 

district court properly held, it is bound by this Court's. 

decision; the possibility of later review of that issue by the 



-4-. 

Supreme Court does not rebut the plaintiffs' evidence (Op. 16-

Since appellants challenged the plaintiffs' record neither 

factually nor legally in the district court, appellants cannot 

credibly -- and, apparently, do not -- contend now that they will 

be able to demonstrate a likelihood of proving to this Court that 

the district court erred in determining, after assessing the 

factual record before it, that plaintiffs were likely to succeed 

in their Section 2 challenge. Likewise, appellants have not even 

shown that -their position has "patent substantial merit." This 

Court need go no further in its analysis. Absent any challenge 

to the district court's application of the law in this Circuit, 

appellants cannot hope to over/turn the district court's 

injunction. Appellants can point to no case where an injunction 

was overturned in the absence of at least some challenge to the 

district court's legal conclusion. See Ruiz, supra, 666 F.2d at 

857, where this Court said that the movant must show at least 

that his claim of success has "patent substantial merit." 

2/ We would also note that, in light of the absence of any 
'disagreement among the courts of appeals (see Mallory v. yrich, 
839 F.2d 275 (6th Cir. 1988),_and this _Court's earlier decision 
in this case; see also Haith V. Martin, 618 F. Supp. 410 
(E.D.N.C. 1985); summarily affirmed, 477 U.S. 901 (1986)) and the 
correctness of this Court's resolution of the issue, it is at 
best -speculative that the Supreme Court will decide to review 
this matter. 



B. Appellants Have Failed To Show That The Balance Of  
Equities Strongly Favors Granting The Stay.  

Appellants have failed to show that the balance of harm 

tilts, or "heavily tilts," in their favor. The district court 

made a careful examination of the effects of going forward with 

an election and concluded that, indeed, the balance of equities 

favored the plaintiffs.A/ Appellants have not carried their 

burden of showing that this conclusion was wrong. 

1. The district court found that if the election were held 

in 1988, the plaintiffs, and the public generally, would be 

harmed by the holding of another election which would, based on 

the evidence before the court, violate the rights of black voters 

(Op. 24-27). The holding of that election would further harm the 

plaintiffs' interests by either discouraging participation by 

candidates supported by black voters in the 1988 election (id. at 

24-25), or, if they run, requiring them and their supporters to 

expend resources on an election in which black voters do not have 

an equal opportunity to elect a candidate of their choice, making 

it more difficult to mount a successful campaign in a subsequent 

election (id. at 25 n. 57). The court also found that plaintiffs 

would be harmed in any future election by the benefits of 

incumbency which would inure, based on past history, to the white 

a/ As the district court stated, the defendants in this case 
are the governor, the_secretary of state, and the election 
commissioner. -None can state any harm to themselves, either as 
individuals or as public officers (Op. 27-28). Thus, the harm 
appellants assert in this Court is, rather, -harm caused the 
public by the delay of a regularly scheduled election (Br. 27-
38). 



- 6 - 

individual likely to be elected in 1988 (id. at 26). In sum, the 

harm done by holding an unlawful election cannot be undone by 

simply holding another, lawful election: each such election 

creates additional hurdles to the achievement of equal 

opportunity for all voters to elect the candidate of their 

choice. 

Appellants do not contend that these factual findings are 

clearly erroneous. They did not submit any evidence in district 

court, and made no real effort to challenge the affidavits' 

plaintiffs submitted relating to the benefits of incumbency, or 

the opinions of black candidates that running in the 1988 

election would be futile. In fact, appellants make no real 

effort to challenge the court's finding that holding yet another 

election, which will place an individual on the state Supreme 

Court for ten years, under an electoral plan which is likely to 

be found to violate the voting rights of black citizens will harm 

the interest of those citizens. 

2. Instead, appellants' main argument is that the 

plaintiffs would not be harmed by holding the 1988 election 

because, if they win this case, a remedy can be devised in time 

for the 1990 election which will fully remedy the violation. 

Appellants argue that the remedy will create two single-member 

districts out of the present two-member district, and that one of 

those districts will b -Orleans Parish. There is no reason to 

delay the 1988 election, appellants assert, because the incumbent 

in that election lives in the suburban -area outside Orleans 



- 7 - 

Parish (Br. 18-20). Appellants argue that since the incumbent 

whose term expires in 1990 lives in Orleans Parish, the Orleans 

Parish district which will be created as a remedy will elect its 

representative in 1990, and plaintiffs will be able to vote in 

that newly created electoral district in 1990 in an election in 

which blacks would be the majority (id. at 20, 23, 39). That 

election, appellants assert, will fully remedy any possible 

violation of Section 2, and since the incumbent who appellants 

apparently assume will be reelected in 1988 lives outside 

Orleans Parish, the results of the 1988 election can be left 

alone (id. at 10, 40). 

The problem with appellants' argument is that it is built 

upon a series of speculative assumptions about who will run in 

this and future elections, who will win those elections, and what 

relief the district court will order after a trial which has not 

even been held. Appellants' assumption that a particular sort of 

relief will be ordered is in the face of the district court's own 

statement that it has not yet determined an appropriate remedy, 

and that the eventual remedy may not be what the appellants 

describe. "Even if plaintiffs prevail on the merits of liability 

and the district is divided into two single-member districts as 

they requested, this Court can provide no guarantee that the seat 

up for election in 1990 will in fact be 'assigned' to Orleans 

Parish!" (Op. 26-27). For instance, much of appellants' 

assumption about the remedy to be adopted turns on the 

coincidence that the incumbent who is up for election in 1988 



- 8 - 

lives in Jefferson Parish, and the incumbent whose term expires 

in 1990 lives in Orleans Parish./ Appellants' remedial scenario 

presupposes that the incumbent will win the 1988 election. If, 

however, an individual wins that election who resides in Orleans 

Parish, the basis of appellants' scenario disappears. The 

individual elected in 1988 could remain in office for ten years  

despite the fact that the electoral scheme under which he was 

elected will have been found to have been a violation of Section 

2. See Watson v. Commissioners Court of Harrison County, 616 

F.2d 105, 107 (5th Cir. 1980). In addition, where elections are 

staggered, it is preferable to remedy the denial of voting rights 

in the first election. Cf. Johnson v. Halifax County, 594 F. 

Supp. 161, 171 (E.D.N.C. 1984). It is quite audacious for 

appellants here to argue that the public interest will be served 

by allowing an election to be held under an electoral scheme, the 

legality of which appellants have not even bothered to argue.-6/ 

Alternatively, appellants suggest that, if plaintiffs prove 

a Section 2 violation, the harm caused plaintiffs by the 1988 

election may be fully remedied by an order invalidating the 1988 

-V The residency of the incumbents should have no effect on the 
court's decision on what remedy will be most appropriate to 
remedy the violation, and the district court has said exactly 
that (Op. 27). 

ki It is clear that the interests of black voters are not served 
by going ahead with this election. But it also seems apparent 
- that the interests of white voters are not served if all of the 
four parishes elect a -justice who is then "assigned" to only the 
suburban parishes. .The voters in the newly drawn, suburban 
district will have no opportunity to elect a justice until 1998. 
See Op. 29. 



- 9 - 

election, and the holding of a special election (Br. 24-25). 

This Court's decision in Hamer V. Campbell, supra (cited by this 

Court in its remand to the district court), makes clear that 

courts may invalidate elections in circumstances where pre-

election relief enjoining an election would have also been 

appropriate. In Saxon v. Fielding, 614 F.2d 78, 79 (1980), this 

Court stated that Hamer established that an election may be 

voided when there has been "an improper refusal by a district 

court to enjoin an election prior to its occurrence." Given the 

district court's conclusion that plaintiffs are likely to succeed 

on the merits, there is indeed every reason to conclude that a 

special election will be required. But as the court noted (Op. 

30), an election now and another election in one or two years 

will needlessly undermine voter confidence and interest; 

moreover, the just-elected incumbent would likely enjoy an unfair 

advantage in name recognition and organization (ibid.). Again, 

the harm of an unlawful election cannot be so simply undone as 

appellants assume (ibid.). Under the law of this Circuit, the 

district court was correct to enjoin the election. 

Finally, now is not the time for this Court to determine the 

appropriate remedy for a Section 2 violation as yet unproved. It 

may well be that the district court, if plaintiffs prove a 

Section 2 violation, will order the creation of two single-member 

districts. But the creation and implementation of that remedy, 

we submit, will be much easier if the 1988 election is delayed. 

In all events, the district court should have maximum flexibility 



- 10 - 

to devise an appropriate remedy. Appellants' approach would turn 

the usual procedure on its head: having already hemmed in the 

district court with respect to remedy it would proceed to examine 

the question of liability. 2/ 

For the reasons stated above, this Court should deny 

appellants' motion for a stay pending appeal. 

II. APPELLANTS HAVE FAILED TO ESTABLISH THAT THE GRANTING 
OF THE PRELIMINARY INJUNCTION WAS AN ABUSE OF 
DISCRETION. 

As stated at pp. 2-3, supra, in order to reverse the entry 

of the preliminary injunction, appellants must demonstrate that 

the district court abused its discretion. Under the 

circumstances of this case, review of the preliminary injunction 

involves essentially the same considerations as review of the 

motion for a stay pending appeal. Compare Mississippi Power &  

Light V. United Gas Pipe Line, 760 F.2d 618, 621 (5th Cir. 1985) 

(setting out condition for determining preliminary relief), with 

Ruiz v.  Estelle, supra (standard for stay pending appeal). 

Therefore, for the same reasons that justify the denial of 

appellants' motion for a stay, the decision below should be 

affirmed. 

2/ Appellants - peculate in a footnote that if the election is 
-delayed, the seat which will expire in 1988 will be vacant, and 
that this may create difficult problems on the state Supreme - 

.Court, or that if the incumbent is -permitted to remain, the 
decisions of the court may be subject to challenge (Br. 29, n.6). 
It would appear, however, that state law (La. Rev. Stat. Ann 
§42:2) permits the incumbent to hold over in office, as 
appellant's brief also concedes (Br. 29). 



III. THIS COURT SHOULD NOT STAY SO MUCH OF THE PRELIMINARY 
INJUNCTION AS PROHIBITS THE QUALIFICATION PERIOD 
SCHEDULED FOR JULY 27-29, 1988. 

As demonstrated above, appellants have failed to demonstrate 

a basis for staying or reversing the preliminary injunction. The 

only legitimate reason for holding a qualification period is as a 

prerequisite to an expected election. See South Carolina v. 

United States, 585 F. Supp. 418 (D.D.C. 1984) (three-judge court) 

(enjoining candidate filing period where election will not be 

held due to state's failure to pre clear new election procedures 

under Section 5 of the Voting Rights Act of 1965, as amended, 42 

U.S.C. 1973c). Since appellants have not shown why the 

preliminary injunction enjoining the election will be set aside, 

there is no reason to hold that the district court abused its 

discretion in enjoining a qualification period. Moreover, since 

the ultimate disposition of the claims will, in all likelihood, 

not be in appellants' favor, the partial stay would require 

candidates in effect to begin campaigns twice, thus unfairly 

depleting their resources. Accordingly, we suggest that the stay 

be denied in its entirety. 

CONCLUSION 

While we oppose the relief sought by appellants, we agree 

that disruption to their electoral system should be minimized --

consistent with ensuring plaintiffs' rights under federal law --

until it is proved that that system does in fact violate Section 
3 

2 of the Voting Rights Act. Accordingly, we fully support this 



- 12 - 

Court's decision to decide this matter on an expedited basis, and 

will urge the district court to do so as well. 

Respectfully submitted, 

WM. BRADFORD REYNOLDS 
As sta. Attorne General 

JESSICA DUNSAY SILVER 
MARK L. GROSS 

Attorneys 
Department of Justice 
Washington, D.C. 20530 
(202) 633-2172 



CERTIFICATE OF SERVICE 

I hereby certify that I served the foregoing Response Of The 

Amicus Curiae United States To Questions Posed By This Court 

Relating To This Appeal And To Appellants' Motion For Stay 

Pending Appeal on the parties to this appeal by sending two 

copies to each of the following addressees: 

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

Roy Rodney, Jr. 
643 Magazine Street 
New Orleans, LA 70130 

Julius L. Chambers 
Charles Stephen Ralston 
C. Lani Guinier 
Judith Reed 
Pamela S. Karlan 
99 Hudson Street, 16th Floor 
New York, New York 10013 

Ron Wilson 
Richards Building, Suite 310 
837 Gravier Street 
New Orleans, LA 70112 

William J. Guste, Jr. 
Attorney General 
Louisiana Department of Justice 
234 Loyola Avenue, 7th Floor 
New Orleans, LA 70112 

M. Truman Woodward, Jr. 
909 Poydras Street, Suite 2300 
New Orleans, LA 70130 

Blake G. Arata 
201 St. Charles Avenue 
New Orleans, LA 70130 



A. R. Christovich 
1900 American Bank Bldg. 
New Orleans, LA 70130 

Moise W. Dennery 
601 Poydras Street 
New Orleans, LA 70130 

Robert G. Pugh 
330 Marshall Street, Suite 1200 
Shreveport, LA 71101 

MARK L. GROSS 
Attorney 

This 22nd day of July, 1988. 



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

No. 88-3492 

RONALD CHISOM, et al., 

Plaintiffs-Appellees 

V . 

EDWIN EDWARDS, et al., 

Defendants-Appellants 

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

RESPONSE OF THE AMICUS CURIAE UNITED STATES TO 
QUESTIONS POSED BY THIS COURT RELATING TO THIS APPEAL 

AND TO APPELLANTS' MOTION FOR STAY PENDING APPEAL 

On July 19, 1988, this Court asked the United States to 

respond to three questions regarding this appeal and appellants' 

motion for a stay pending appea1. 1/ In our view, the record 

presented to the district court supports the court's decision to 

enter preliminary relief, and appellants fail to demonstrate a 

basis for staying the district court's order pending a final 

decision on this appeal. Since appellants have shown no basis 

for overturning the court's injunction, there is no reason for 

1/ The United States has prepared the papers for and intends to 
file a motion to intervene as a plaintiff in the district court 
in the coming week. 



S 
- 2 - 

this Court to stay the injunction to allow candidates to qualify 

to run.-?J 

ARGUMENT 

I. APPELLANTS HAVE FAILED TO SHOW THAT THEY 
ARE ENTITLED TO A STAY OF THE DISTRICT COURT'S 
PRELIMINARY INJUNCTION. 

In order to secure a stay pending appeal, the appellants 

must demonstrate in this Court that they are likely to succeed 

on the merits of this appeal, that without the stay they will 

suffer irreparable injury, that the granting of the stay will 

not significantly harm other parties, and that it will serve the 

public interest. Fortune v. Molpus, 431 F.2d 799, 804 (5th Cir. 

1970); Ruiz v. Estelle, 666 F.2d 854, 856 (5th Cir. 1982). 

Alternatively, if appellants cannot show a likelihood of success 

on the merits, but show only that their position on the issue of 

violation has "patent substantial merit," Ruiz, supra, 666 F.2d 

at 857, they can still secure a stay if they can show that "'the 

balance of equities (i.e. consideration of the other three 

factors) is . . heavily tilted in the movant's favor.'" Ibid.  

(emphasis in original) (citation omitted). Under either standard 

appellants have failed to show entitlement to a stay. 

A. Appellants Have Shown Neither Likelihood Of Success 
On The Merits Of This Appeal Nor Patent Substantial  
Merit to Their Position.  

In order to succeed on this appeal, appellants must prove 

that the district court abused its discretion in granting a 

2/ The United States' concern in this case -- and the scope of 
the rdispute now before this Court, as we understand it -- is 
currently limited to the two-judge First District. 



- 3 - 

preliminary injunction. EEOC V. Cosmair, Inc., L'Oreal Hair Care  

Div., 821 F.2d 1085, 1088 (5th Cir. 1987); Enterprise Int'l, Inc.  

v. Corporacion Estatal Petrolera, 762 F.2d 464, 472 (5th Cir. 

1985). But it i well-established in this Circuit that such 

relief is appropriate in cases like this one. Where, as here, 

plaintiffs file a prompt, pre-election challenge to voting 

procedures, a district court may, in exercising its equitable 

authority, enjoin scheduled elections in order to prevent further 

violations of voting rights. See, e.g., Hamer v. Campbell, 358 

F.2d 215, 221 (1966); Toney v. White, 476 F.2d 203, 209 (1973); 

see also Reynolds v. Sims, 377 U.S. 533, 585 (1964). 

Appellants fail to show that the district court erred when 

determining, based on the record before it, that plaintiffs were 

likely to prove that the electoral scheme for electing two judges 

from the First District violates Section 2 of the Voting Rights 

Act of 1965, as amended, 42 U.S.C. 1973. In fact, as the 

district court noted (Op. 20), appellants did not put on any 

evidence at all relating to proof of a Section 2 violation, and 

did not challenge the legal standard plaintiffs suggested be 

applied to that evidence. 

Appellants' only argument on the merits of this appeal is a 

challenge to this Court's decision that Section 2 applies to the 

election of judges, arguing that the Supreme Court may review 

this case and reverse this Court's decision (Br. 13714). As the 

district court properly held, it is bound by this Court's 

decision; the possibility of later review of that issue by the 



- 4 - 

Supreme Court does not rebut the plaintiffs' evidence (Op. 16-

Since appellants challenged the plaintiffs' record neither 

factually nor legally in the district court, appellants cannot 

credibly -- and, apparently, do not -- contend now that they will 

be able to demonstrate a likelihood of proving to this Court that 

the district court erred in determining, after assessing the 

factual record before it, that plaintiffs were likely to succeed 

in their Section 2 challenge. Likewise, appellants have not even 

shown that their position has "patent substantial merit." This 

Court need go no further in its analysis. Absent any challenge 

to the district court's application of the law in this Circuit, 

appellants cannot hope to overturn the district court's 

injunction. Appellants can point to no case where an injunction 

was overturned in the absence of at least some challenge to the 

district court's legal conclusion. See Ruiz, supra, 666 F.2d at 

857, where this Court said that the movant must show at least  

that his claim of success has "patent substantial merit." 

2/ We would also note that, in light of the absence of any 
disagreement among the courts of appeals (see Mallory v. Eyrich, 
839 F.2d 275 (6th Cir. 1988), and this Court's earlier decision_ 
in this case; see also Haith V. Martin, 618 F. Supp. 410 - 
(E.D.N.C. 1985), summarily affirmed, 477 U.S. 901 (1986)) and the 
correctness of this Court's resolution of the issue, it is at 
best speculative that the Supreme Court-will decide to review 
this matter. 



B. Appellants Have Failed To Show That The Balance Of  
Equities Strongly Favors Granting The Stay.  

Appellants have failed to show that the balance of harm 

tilts, or "heavily tilts," in their favor. The district court 

made a careful examination of the effects of going forward with 

an election and concluded that, indeed, the balance of equities 

favored the plaintiffs./ Appellants have not carried their 

burden of showing that this conclusion was wrong. 

1. The district court found that if the election were held 

in 1988, the plaintiffs, and the public generally, would be 

harmed by the holding of another election which would, based on 

the evidence before the court, violate the rights of black voters 

(Op. 24-27). The holding of that election would further harm the 

plaintiffs' interests by either discouraging participation by 

candidates supported by black voters in the 1988 election (id. at 

24-25), or, if they run, requiring them and their supporters to 

expend resources on an election in which black voters do not have 

an equal opportunity to elect a candidate of their choice, making 

it more difficult to mount a successful campaign in a subsequent 

election (id. at 25 n. 57). The court also found that plaintiffs 

would be harmed in any future election by the benefits of 

incumbency which would inure, based on past history, to the white 

A/ As the district court stated, the defendants in this case 
• are the governor, the secretary of state, and the election - 
commissioner. None can state any harm to themselves, either as 
individuals or as public officers (Op. 27-28). Thus, the harm 
appellants assert in. this Court is, rather, harm caused the 
public by the delay of a regularly scheduled election (Br. 27-
38). 



- 6 - 

individual likely to be elected in 1988 (id. at 26). In sum, the 

harm done by holding an unlawful election cannot be undone by 

simply holding another, lawful election: each such election 

creates additional hurdles to the achievement of equal 

opportunity for all voters to elect the candidate of their 

choice. 

Appellants do not contend that these factual findings are 

clearly erroneous. They did not submit any evidence in district 

court, and made no real effort to challenge the affidavits 

plaintiffs submitted relating to the benefits of incumbency, or 

the opinions of black candidates that running in the 1988 

election would be futile. In fact, appellants make no real 

effort to challenge the court's finding that holding yet another 

election, which will place an individual on the state Supreme 

Court for ten years, under an electoral plan which is likely to 

be found to violate the voting rights of black citizens will harm 

the interest of those citizens. 

2. Instead, appellants' main argument is that the 

plaintiffs would not be harmed by holding the 1988 election 

because, if they win this case, a remedy can be devised in time 

for the 1990 election which will fully remedy the violation. 

Appellants argue that the remedy will create two single-member 

districts out of the present two-member district, and that one of 

those districts will be Orleans Parish. There is no reason to 

delay the 198'8 election, appellants assert, because the incumbent 

in that election lives in the suburban area outside Orleans 



• 
- 7 - 

Parish (Br. 18-20). Appellants argue that since the incumbent 

whose term expires in 1990 lives in Orleans Parish, the Orleans 

Parish district which will be created as a remedy will elect its 

representative in 1990, and plaintiffs will be able to vote in 

that newly created electoral district in 1990 in an election in 

which blacks would be the majority (id. at 20, 23, 39). That 

election, appellants assert, will fully remedy any possible 

violation of Section 2, and since the incumbent who appellants 

apparently assume will be reelected in 1988 lives outside 

Orleans Parish, the results of the 1988 election can be left 

alone (id. at 10, 40). 

The problem with appellants' argument is that it is built 

upon a series of speculative assumptions about who will run in 

this and future elections, who will win those elections, and what 

relief the district court will order after a trial which has not 

even been held. Appellants' assumption that a particular sort of 

relief will be ordered is in the face of the district court's own 

statement that it has not yet determined an appropriate remedy, 

and that the eventual remedy may not be what the appellants 

describe. "Even if plaintiffs prevail on the merits of liability 

and the district is divided into two single-member districts as 

they requested, this Court can provide no guarantee that the seat 

up for election in 19-90 will in fact be 'assigned' to Orleans 

Parish" (Op. 26-27). For instance, much of appellants' 

assumption about the remedy to be adopted turns on the. 

coincidence that the incumbent who is up foi election in 1988 



- 8 - 

lives in Jefferson Parish, and the incumbent whose term expires 

in 1990 lives in Orleans Parish../ Appellants' remedial scenario 

presupposes that the incumbent will win the 1988 election. If, 

however, an individual wins that election who resides in Orleans 

Parish, the basis of appellants' scenario disappears. The 

individual elected in 1988 could remain in office for ten years  

despite the fact that the electoral scheme under which he was 

elected will have been found to have been a violation of Section 

2. See Watson v. Commissioners Court of Harrison County, 616 

F.2d 105, 107 (5th Cir. 1980). In addition, where elections are 

staggered, it is preferable to remedy the denial of voting rights 

in the first election. Cf. Johnson v. Halifax County, 594 F. 

Supp. 161, 171 (E.D.N.C. 1984). It is quite audacious for 

appellants here to argue that the public interest will be served 

by allowing an election to be held under an electoral scheme, the 

legality of which appellants have not even bothered to argue./ 

Alternatively, appellants suggest that, if plaintiffs prove 

a Section 2 violation, the harm caused plaintiffs by the 1988 

election may be fully remedied by an order invalidating the 1988 

5-/ The residency of the incumbents should have no effect on the 
court's decision on what remedy will be most appropriate to 
remedy the violation, and the district court has said exactly 
that (Op. 27). 

-A/ It is clear that the interests of black voters are not served 
by going ahead with this election._ But it also seems apparent 
that the interests of white voters are not served if all of the 
four parishes elect a justice who is then "assigned" to only the 
suburban parishes. The voters in• the newly drawn suburban 
district will have no opportunity to elect a justice until 1998. 
See Op. 29. 



- 9 - 

election, and the holding of a special election (Br. 24-25). 

This Court's decision in Hamer v. Campbell, supra (cited by this 

Court in its remand to the district court), makes clear that 

courts may invalidate elections in circumstances where pre-

election relief enjoining an election would have also been 

appropriate. In Saxon v. Fielding, 614 F.2d 78, 79 (1980), this 

Court stated that Hamer established that an election may be 

voided when there has been "an improper refusal by a district 

court to enjoin an election prior to its occurrence." Given the 

district court's conclusion that plaintiffs are likely to succeed 

on the merits, there is indeed every reason to conclude that a 

special election will be required. But as the court noted (Op. 

30), an election now and another election in one or two years 

will needlessly undermine voter confidence and interest; 

moreover, the just-elected incumbent would likely enjoy an unfair 

advantage in name recognition and organization (ibid.). Again, 

the harm of an unlawful election cannot be so simply undone as 

appellants assume (ibid.). Under the law of this Circuit, the 

district court was correct to enjoin the election. 

Finally, now is not the time for this Court to determine the 

appropriate remedy for a Section 2 violation as yet unproved. It 

may well be that the district court, if plaintiffs prove a 

Section 2 violation, will order the creation of two single-member 

districts. But the creation and implementation of that remedy, 

we submit, will be much easier if the 1988 election is delayed. 

In all eyents, the district court should have maximum flexibility 



- 10 - 

to devise an appropriate remedy. Appellants' approach would turn 

the usual procedure on its head: having already hemmed in the 

district court with respect to remedy it would proceed to examine 

the question of liability.2/ 

For the reasons stated above, this Court should deny 

appellants' motion for a stay pending appeal. 

II. APPELLANTS HAVE FAILED TO ESTABLISH THAT THE GRANTING 
OF THE PRELIMINARY INJUNCTION WAS AN ABUSE OF 
DISCRETION. 

As stated at pp. 2-3, supra, in order to reverse the entry 

of the preliminary injunction, appellants must demonstrate that 

the district court abused its discretion. Under the 

circumstances of this case, review of the preliminary injunction 

involves essentially the same considerations as review of the 

motion for a stay pending appeal. Compare Mississippi Power &  

Light v. United Gas Pipe Line, 760 F.2d 618, 621 (5th Cir. 1985) 

(setting out condition for determining preliminary relief), with 

Ruiz v.  Estelle, supra (standard for stay pending appeal). 

Therefore, for the same reasons that justify the denial of 

appellants' motion for a stay, the decision below should be 

affirmed. 

2/ Appellants speculate in a footnote that if the election is 
delayed, the seat which will expire in 1988 will be vacant, and 
that this may create difficult problems on the state Supreme 

.Court, or that if the incumbent is permitted to remain, the 
decisions of the court may be subject to challenge (Br. 29, ri.6). 
It would appear, however, that state law (La. Rev. Stat. Ann 
§42:2) permits the incumbent to hold over in office, as 
appellant's brief also concedes (Br. 29). 



• 

III. THIS COURT SHOULD NOT STAY SO MUCH OF THE PRELIMINARY 
INJUNCTION AS PROHIBITS THE QUALIFICATION PERIOD 
SCHEDULED FOR JULY 27-29, 1988. 

As demonstrated above, appellants have failed to demonstrate 

a basis for staying or reversing the preliminary injunction. The 

only legitimate reason for holding a qualification period is as a 

prerequisite to an expected election. See South Carolina v. 

United States, 585 F. Supp. 418 (D.D.C. 1984) (three-judge court) 

(enjoining candidate filing period where election will not be 

held due to state's failure to pre clear new election procedures 

under Section 5 of the Voting Rights Act of 1965, as amended, 42 

U.S.C. 1973c). Since appellants have not shown why the 

preliminary injunction enjoining the election will be set aside, 

there is no reason to hold that the district court abused its 

discretion in enjoining a qualification period. Moreover, since 

the ultimate disposition of the claims will, in all likelihood, 

not be in appellants' favor, the partial stay would 

candidates in effect to begin campaigns twice, thus 

depleting their resources. Accordingly, we suggest 

be denied in its entirety. 

require 

unfairly 

that the stay 

CONCLUSION 

While we oppose the relief sought by appellants, we agree 

that disruption to their electoral system should be minimized 

consistent with ensuring plaintiffs' rights under federal law 

IMO 411110 

until it is proved that that system does in fact violate Section , 

2 of the Voting Rights Act. Accordingly, we fully support this 



- 12 - 

Court's decision to decide this matter on an expedited basis, and 

will urge the district court to do so as well. - 

Respectfully submitted, 

WM. BRADFORD REYNOLDS 
Aststat Attorner General 

JESSICA DUNSAY SILVER 
MARK L. GROSS 

Attorneys 
Department of Justice 
Washington, D.C. 20530 
(202) 633-2172 



CERTIFICATE OF SERVICE 

I hereby certify that I served the foregoing Response Of The 

Amicus Curiae United States To Questions Posed By This Court 

Relating To This Appeal And To Appellants' Motion For Stay 

Pending Appeal on the parties to this appeal by sending two 

copies to each of the following addressees: 

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

Roy Rodney, Jr. 
643 Magazine Street 
New Orleans, LA 70130 

Julius L. Chambers 
Charles Stephen Ralston 
C. Lani Guinier 
Judith Reed 
Pamela S. Karlan 
99 Hudson Street, 16th Floor 
New York, New York 10013 

Ron Wilson 
Richards Building, Suite 310 
837 Gravier Street 
New Orleans, LA 70112 

William J. Guste, Jr. 
Attorney General 
Louisiana Department of Justice 
234 Loyola Avenue, 7th Floor 
New Orleans, LA 70112 

M. Truman Woodward, Jr. 
909 Poydras Street, Suite 2300 
New Orleans, LA 70130 

Blake G. Arata 
201 St. Charles Avenue 
New Orleans, LA 70130 



A. R. Christovich 
1900 American Bank Bldg. 
New Orleans, LA 70130 

Moise W. Dennery 
601 Poydras Street 
New Orleans, LA 70130 

Robert G. Pugh 
330 Marshall Street, Suite 1200 
Shreveport, LA 71101 

This 22nd day of July, 1988. 

MARK L. GROSS 
Attorney