Attorney Notes

    +4.. 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA 

RONALD CHISOM, MARIE BOOKMAN, 
WALTER WILLARD, MARC MORIAL 
LOUISIANA VOTER REGISTRATION/ 
EDUCATION CRUSADE, AND HENRY A. 
DILLON, III 

Plaintiffs 

VERSUS 

EDWIN EDWARDS, in his capacity 
as Governor of the State of 
Louisiana, JAMES H. BROWN, in 
his capacity as Secretary of 
State of the State of Louisiana; 
and JERRY M. FOWLER, in his 
capacity as Commissioner of 
Elections of the State of 
Louisiana 

Defendants 

* * • * * * * * * * * * * * * * * 

CIVIL ACTION 

NUMBER: 86-4075 

SECTION "A" 

CLASS ACTION 

NOTICE OF HEARING  

Please take notice that the undersigned has set the 

attached Motion to Dismiss for Failure to State a Claim 

Pursuant to F.R.C.P. 12 (b)(6) before the Ho i;rable Charles 

Schwartz, Jr., United States District Judge, Eastern District 

of Louisiana, 500 Camp Street, New Orleans Louisiana 70130, 

on Wednesday, April 15, 1987 at 10:00 a.m. 

Respectfu ly submitted, 

WILLIAM . GUSTE, JR. 
ATTORNEY GENERAL 

, KENDALL L. VICK 
ASSISTANT ATTORNEY GENERAL 

CER11RCATE OF SERVICE BY: 

I Certify .that a copy of the foregoing pleading has been 
served upon counsel for all parties by mailing the same 

to each, perly addressed and pcitage -prepaid 

this. I/  da of/ /A ia  
frti  

r • 

EAVELYN T. BROOKS 
ASSISTANT ATTORNEY GENERAL 

K A L L. 
AS• ISTANT AT IRNEY GENERAL 
LO SIANA DEPARTMENT OF JUSTICE 
234 OYOLA AVENUE, 7TH FLOOR 
NEW ORLEANS, LOUISIANA 70112 
TELEPHONE: (504) 568-5575 



UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA 

RONALD CHISOM, MARIE BOOKMAN, CIVIL ACTION 
WALTER WILLARD, MARC MORIAL 
LOUISIANA VOTER REGISTRATION/ NUMBER: 86-4075 
EDUCATION CRUSADE, AND HENRY A. * 
DILLON, III SECTION "A" 

Plaintiffs 

VERSUS 

EDWIN EDWARDS, in his capacity 
as Governor of the State of 
Louisiana, JAMES H. BROWN, in CLASS ACTION 
his capacity as Secretary of 
State of the State of 
Louisiana; and JERRY M. FOWLER, * 
in his capacity as Commissioner * 
of Elections of the State of 
Louisiana 
• Defendants 

* * * * * * * * * * * * * •* * * * 

MOTION TO DISMISS FOR FAILURE TO STATE  
A CLAIM UPON WHICH RELIEF CAN BE GRANTED PURSUANT 

TO FEDERAL RULE OF CIVIL PROCEDURE 12 (b)(6)  

Pursuant to Federal Rule of Civil Procedure 12 (b)(6), 

defendants, Edwin Edwards in his capacity as Governor of the 

State of Louisiana; James H. Brown, in his capacity as 

Secretary of State of the State of Louisiana; and Jerry M. 

Fowler, in his capacity as Commissioner of Elections of the 

State of Louisiana, move the court to dismiss the action 

because the complaint fails to state a claim against defendant 

upon which relief can be granted. 



Respectfully submitted, 

WILLIAM J. GUSTE D JR. 
ATTORNEY GENERAL 

KENDALL L. VICK 
ASSISTANT ATTORNEY GENERAL 

EAVELYN T. BROOKS 
\ASSISTANT ATTORNEY GENERAL 

CERTIFICATE OF SERVICE  
I certify that a copy of the foregoing pleading has been 

served upon counsel for all parties by mailing the same 
to each, ppparly addreséd and . postage prepaid 

/'/ • • 
1%12i_ 

e-day 

LL L. VI 
A S STANT ATTO EY GENERAL 
LOU IANA DE RTMENT OF JUSTICE 
234 OYOLA AVENUE, 7TH FLOOR 
NEW 0 LEANS, LOUISIANA 70112 
TELEPHONE: (504) 568-5575 

SPECIAL ASSISTANT ATTORNEY GENERALS: 

M. Truman Woodward, Jr., Esq. 
1100 Whitney Building 
New Orleans, Louisiana 70130 

Blake G. Arata, .Esq. 
na.st. Charles Avenue 
Suite 4000 
New Orleans, Louisiana 70170 

A. R. Christovich, Esq. 
1900 American Bank Building 
New Orleans, Louisiana 70130 

Moise W. Dennery, Esq. 
21st Floor Pan American Life Center 
601 Poydras Street 
New Orleans, Louisiana 70130 

-2-



• • 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA 

RONALD CHISOM, MARIE BOOKMAN, 
WALTER WILLARD, MARC MORIAL 
LOUISIANA VOTER REGISTRATION/ 
EDUCATION CRUSADE, AND HENRY A. 
DILLON, III 

Plaintiffs 

VERSUS 

EDWIN EDWARDS, in his capacity 
as Governor of the State of 
Louisiana, JAMES H. BROWN, in 
his capacity as Secretary of 
State of the State of Louisiana; * 
and JERRY M. FOWLER, in his 
capacity as Commissioner of 
Elections of the State of 
Louisiana 

Defendants 

* * * * * * * * * * * * * * * * * 

CIVIL ACTION 

NUMBER: 86-4075 

SECTION "A" 

CLASS ACTION 

MEMORANDUM IN SUPPORT OF DEFENDANT'S  
MOTION TO DISMISS FOR FAILURE TO STATE  
A CLAIM UPON WHICH RELIEF CAN BE GRANTED. -

The defendants, Edwin Edwards, in his capacity as 

Governor of the State of Louisiana; James H. Brown, in his 

capacity as Secretary of State of the State of Louisiana; and 

Jerry M. Fowler, in his capacity as Commissioner of Elections 

of the State of Louisiana, respectfully submit this Memorandum 

in Support of their Motion to Dismiss. For the reasons stated 

below, the plaintiffs' complaint fails to state a claim upon 

which relief can be granted pursuant to Federal Rule of Civil 

Procedure 12 (b)(6). Accordingly, the court should dismiss the 

plaintiffs' complaint. 



STATEMENT OF THE CASE  

On September 22, 1986, Ronald Chisom, four other black 

plaintiffs, and a non-profit corporation, filed a class action 

suit on behalf of all black registered voters in Orleans Parish 

challenging the election of Justices from the First District of 

the Louisiana Supreme Court. 

Plaintiffs contend that the present system of electing 

• judges, whereby the Parishes of Orleans, St. Bernard, 

Plaquemines, and Jefferson elect at large, two Justices to the 

Louisiana Supreme Court, is in violation of the 1965 Voting 

Rights Act, as amended, 42 U.S.C. §1973, the Fourteenth and 

Fifteenth Amendments to the United States Constitution and 

§1983 of Title 42 of the United States Code. Specifically, the 

plaintiffs charge (1) that the present method of electing at 

large two Justices to the Louisiana Supreme Court from the New 

Orleans area impermissibly dilutes minority voting strength in 

violation of §2 of the Voting Rights Act, and (2) that 

defendants' actions are in violation of the Fourteenth and 

Fifteenth Amendments to the United States Constitution and 42 

U.S.C. g1983 in that the purpose and effect of their actions is 

to dilute, minimize, and cancel the voting strength of 

plaintiffs. 

Plaintiffs ask the court to convene a three-judge 

court to hear the claims, to certify this matter as a class 

action and to issue declaratory and injunctive relief against 

the defendants as follows: 



(1) enjoin defendants from allowing elections of 

Justices from the district in question until this 

court has made a decision on the merits of this 

action; (2) order defendants to reapportion the 

district in a way that would remedy the alleged 

• dilution of minority voting strength; and (3) declare 

that defendants have violated §2 of the Voting Rights 

• Act as well as.the-Fourteenth and Fifteenth Amendments. 

• Finally, plaintiffs seek to recover court costs, litigation 

expenses and attorneys' fees. 

On November 12, 1986, at • hearing to determine 

whether a three-judge court should be convened, the court found 

that this action should and will be tried as a one judge case. 

The defendants move to dismiss plaintiffs' complaint 

for failure to state a claim upon which relief can be granted. 

Defendants respectfully submit that the statute upon which 

plaintiffs base this action does not support the allegations in 

the complaint, and that there is no provision in the 

Constitution of the United States of America or in any statute 

of the United States authorizing any court to grant the relief 

which plaintiffs herein seek. 

ARGUMENT  

The first sentence of the opinion of the United States 

Supreme Court in Thornburg v. Gingles,   U.S.  , 106 

S.Ct. 2572 (1986), reads as follows: 

This case requires that we construe for the 
first time §2 of the Voting Rights Act of 
1965, as amended June 29, 1982. 42 U.S.C. 
§1973. 



It is the contention of the defendants that the case at bar 

requires that this court construe for the first time whether 

Section 2 of the Voting Rights Act of 1965 applies to state 

court judges. 

Historically, judges were recognized as unique from 

other officials. See Morial v. Judiciary Comm. of State of  

Louisiana, 565 F.2d 295 (1977 en banc), cert. denied, 435 U.S. 

1013, 98 S.Ct. 1887 (1978). Our federal Constitution placed 

the judiciary in an entirely different category from that of 

any other elective office. For two hundred years, our 

judiciary has been expected to render its decisions based upon 

the merits of the claims •of the litigants. This philosophical 

precept has prevailed in every free country in the world and 

has existed for many centuries in England, whence came our body 

of laws. 

That was the background at the time that the 

Constitution was adopted, and implicity it was incorporated 

into the meaning of Article III of the Constitution. Articles 

and.II, establishing the Congress and the Presidency 

respectively, are lengthy and detailed. By comparison Article 

III establishing the judiciary is so brief and free of 

direction to the judiciary that by the very absence of any 

instructions, it loudly proclaims that the well known and 

prevailing concepts of justice were necessarily imperative 

mandates only that the Court do. justice. 

Bacon, talking of judges, said: "Integrity is their 

portion and proper virtue." Livingston said "that their 

decisions should behold neither plaintiff, defendant, nor 



pleader but only the cause itself." A judge is not supposed to 

represent any individual or any group of individuals. See, 

Holshouser V. Scott, 335 F.Supp. 928 (M.D.N.C. 1971), aff'd. 

409 U.S. 807, 93 S.Ct. 43(1972); New York State Association of  

Trial Lawyers v. Rockefeller, 267 F.Supp. 148 (S.D.N.Y. 1967). 

No minority is entitled to have a judge committed to it. A 

court is obliged only to interpret the Constitution and the 

•laws as enacted. It leans neither to the left nor to the 

right, to the wealthy nor the impoverished, to the white nor 

the black, to the urban nor the rural. By their very nature 

and the oath that they take, judges are so obligated. No group 

is entitled to be represented on a court. Such a situation 

would impair the faith of the litigants and their confidence in 

the judicial system. That is a requirement which every court 

needs to enforce its edicts, for without that, it does not have 

the power to do so. 

The guarantee of judicial probity is essential to the 

functioning of our system. In this context, any requirement 

that a segment of our society should be represented on a court 

connotes only that such representation is a ploy not designated 

to do justice but to serve political purposes. 

Defendants' position, as above stated, is merely 

saying again what was so succinctly put in Buchanan v. Rhodes, 

249 F.Supp. 860 (N.D. Ohio 1966), app. dismissed, 385 U.S. 3, 

87 S.Ct. 33 (1966), and quoted in Wells v. Edwards, 347 F.Supp. 

453 (M.D. La. 1972), affirmed, 409 U.S. 1095, 93 S.Ct. 904 

(1973): "Judges do not represent people, they serve people." 



In Wells, supra, plaintiff sought the reapportionment 

of the judicial districts from which the seven justices of the 

Supreme Court of Louisiana were elected and the defendants 

responded with a motion to dismiss for failure to state a claim 

upon which relief could be granted. The three-judge court 

(panel composed of Judges Ainsworth, Gordon and West) did not 

reach the issue urged by plaintiff "simply because we hold that 

the concept of one-man, one-vote apportionment does not apply 

to the judicial branch of the government". 347 F.Supp. at 454. 

It is well to note that Article V of the 1974 

Constitution of Louisiana establishes our Supreme Court, its 

composition (Art. V, Sec. 3) and the method by which its 

Justices are elected (Art. V, Sec. 4). That Constitution was 

approved under the Voting Rights Act, §5, by the United States 

Department of Justice on November 26, 1974. 

Justice White (joined by Justices Douglas and 

Marshall) dissented from the affirmance of Wells, supra, in an 

opinion written prior to the addition of §2(b) to the Voting 

Rights Act. Justice White argued that "Judges are not private 

citizens...They are state officials, vested with state • 

powers...to carry out...judicial functions." 409 U.S. at 

1096. That dissent, however, disregarded the essential 

differences between judges, who must interpret the law with a 

free, even, unbiased mind, unfettered and untainted by any 

constraints or political motives, and legislators, a difference 

subsequently recognized by statute. Therefore, defendants 

contend Justice White's dissenting opinion equated judicial 



S 
decisions with mere ministerial functions; it equated the 

adjudicatory process with political decision-making. 

In Haith v. Martin, 618 F.Supp. 410 (E.D.N.C. 1985), 

affm'd., 106 S.Ct. 3268 (1986), the court held that judicial 

elections are subject to Section 5 of the Voting Rights Act 

Requirements. The defendants, in that case, argued that 

Section 5 did not apply ta judicial elections, relying on the 

one-man, one-vote cases. The District Court rejected these 

cases as inapplicable: 

Discounting the interesting jurisprudential 
arguments arising from such an attempted 
distinction...it is quite clear that no such 
distinction can be attributed to (§5 of the 
Voting Rights] Act***As can be seen, the Act 
applies to all voting without any limitation 
to who, or what, is the object of the 
vote***We hold that the fact that an 
election law deals with the election of 
members of the judiciary does not remove it 
from the ambit of Section 5. 618 F.Supp. at 
413. 

In finding that §5 applies to judiciary elections the 

court noted that §5 goes to the mechanics of voting, that is 

the "standard, practice or procedure" which requires 

• preclearance. Id. at 413. Therefore, the court concluded, 

"Congress meant 'to reach any state enactment which altered the 

election law of a covered state in even a minor way.'" Id., 

quoting Allen v. State Board of Elections, 393 U.S. 344, 89 

•S.Ct. 817 (1969). 

Section 2 of the Voting Rights Act, on the other hand, 

does not deal with the mechanics of voting but with the 

fundamental right to vote for those who govern. Cf: Thornburg  

-7-



v. Gingles, zupra. For this reason Congress expressly uses in 

the statute the phrase "to elect representatives of their  

choice." The one-man, one-vote cases are based upon the 

concept of representation. See Reynolds v. Sims, 277 U.S. 

533, 84 S.Ct. 1362 (1964) and its progeny. 

Thus, prior to 1982, when Congress amended Section 2 

of the Voting Rights, the case law had established the 

proposition- that the one-man, one-vote doctrine did not apply 

to the election of judges since, judges did not represent 

people. By using the term "representatives" in Section 2 and 

not in Section 5, Congress employed a term of art, the meaning 

of which it presumably understood. Courts must presume that 

Congress knows the law. Director v. Perine North River  

Associates, 459 U.S. 297, 319-20, 103 S.Ct. 634, 648 (1963); 

Cannon v. University of Chicago, 441 U.S. 677, 696-97, 99 S.Ct. 

1966, 1957-58 (1979). 

Defendants respectfully submit that Haith, supra, does 

not have the same precedential effect as Wells because a) 

Haith was decided under S5 of the Voting Rights Act and b) any 

statement vis-a-vis the effect of §2 on elections of judges 

were based upon language contained in §2 prior to the 1982 

Amendment, which clearly refers only to "representatives." 

It is respectfully -urged that this Court is bound by Wells. 

The affirmance of the three-judge decision, although not 

receiving plenary consideration, is nevertheless precedential. 

Ohio ex rel. Eaton v. Price, 360 U.S. 246, 247, 79 S.Ct. 978 

(1959); see Sternand Gressman, Supreme Court Practice, 197 

(4th Ed. 1969); C. Wright, Law of Federal Courts, 495 (2d Ed. 

1970). 

-8-



The distinction between the "representatives" of the 

people and the judiciary was clearly drawn by Hamilton in The 

Federalist, No. 78: 

If it be said that the legislative body are 
themselves the constitutional judges of 
their own powers, and that the construction 
they put upon them is conclusive upon the 
other departments, it may be answered, that 
this cannot be the natural presumption, 
where it is not to be collected from any 
particular provisions in the constitution. 
It is not otherwise to be supposed that the 
constitution could intend to enable the 
representatives of the people to substitute 
their will to that of their constituents. 
It is far more rational to suppose that the 
courts were designed to be an intermediate 
body between the people and the legislature, 
in order, among other things, to keep the 
latter within the limits assigned to their 
authority. The interpretation of the laws 
is the proper and peculiar province of the 
courts... 

In Morial v. Judiciary Comm of State of Louisiana, 565 

F.2d 295 (1977 en banc), cert. denied, 435 U.S. 1013, 98 S.Ct. 

1887 (1978), the Fifth Circuit held inter alia, 

The equal protection clause of the constitution does 
not put the states to the choice of foregoing an , 
elective judiciary or treating candidates for judicial 
office like candidates for all other elective 
offices. The Louisiana constitution, like the federal 
constitution, creates a separate judicial branch. 
Article V of the Louisiana constitution is devoted 
entirely to the functions and duties of that branch. 
The structure, powers, duties, and emoluments of the 
state's judiciary are treated differently from those 
of "Public Officials," who are dealt with in a 
separate.article of the constitution, article IX. 

Because the judicial office is different in key 
respects from other offices, the state may regulate 
its judges with the differences in mind. For example 
the contours of the function make inappropriate the 
same kind of particularized pledges of conduct in 
office that are the very stuff of campaigns for most 
non-judicial offices. A candidate for the mayoralty 

-9-



can and often should announce his determination to 
effect some program, to reach a particular result on 
some question of city policy, or to advance the 
interests of a particular group. It is expected that 
his decisions in office may be predetermined by 
campaign commitment. He cannot, consistent with the 
proper exercise of his judicial powers, bind himself 
to decide particular cases in order to achieve a given 
programmatic result. 10 Moreover, the judge acts on 
individual cases and not broad programs. The judge 
legislates but interstitially; the progress through 
the law of a particular judges' social and political 
performance preferences is, in Mr. Justice Holmes' 
words, "confined from molar to molecular motion." 
Southern Pacific Co. v. Jensen, 244 U.S. 205, 221, 37 
S.Ct. 524, 531 (1916) (Holmes, J., dissenting). 

It is with this background that the members of 

Congress enacted S2 of the Voting Rights Act. The wording of 

the statute evidences no intent to break from that historic 

perspective and those words are the starting point of any 

statutory analysis. American Tobacco Co. v. Patterson, 456 

U.S. 63, 68, 102 S.Ct. 1534, 1537 (1982). Section 2 provides 

in full; as follows: 

- (a) No voting qualification or 
prerequisite to voting or standard, 
practice, or procedure shall be imposed or 
applied by any State or political 
subdivision in a manner which results in a 
denial or abridgement of the right of any 
citizen of the United States to vote on 
account of race or color, or in 
contravention of the guarantees set forth in 
section 1973b(f)(2) of this title, as 
provided in subsection (b) of this section. 

(b) A violation of subsection (a) of 
this section is established if, based on the 
totality of circumstances, it is shown that 
the political processes leading to 
nomination or election in the State or 
political subdivision are not equally open 
to participation by members of a class of 
citizens protected by subsection (a) of this 
section in that its members have less 
opportunity that other members of the 
electorate to participate in the political 

-10-



process and to elect representatives of 
their choice. The extent to which members 
of a protected class have been elected to 
office in the State or political subdivision 
is one circumstance which may be 
considered: Provided, That nothing in this 
section establishes a right to have members 
of a protected class elected in numbers 
equal to their proportion in the population. 

42 U.S.C. §1973 (emphasis added). 

The question presented here is of the applicability of 
^ 

a statute. When such a question arises, a decision can be 

reached only by applying appropriate criterion. "For the 

interpretation of statutes, 'intent of the legislature' is the 

criterion that is most often recited." Sutherland Statutory 

Construction §45.05, p. 21 (4th Ed). The rule for determining 

legislative intent was best stated by Lord Blackburn in 1877: 

In all cases the object is to see what is 
the intention exposed by the words used. 
But, from the imperfection of language, it 
is impossible to know what that intention is 
without inquiring further, and seeking what 
the circumstances were with reference to 
which the words were used, and what was the 
object, appearing from those circumstances, 
which the person using them had in view; for 
the meaning of the word varies according to_ 
the circumstances with respect to which they 
were used. 

River Wear Com'rs v. Adamson, L.R. 2 AC 743 
(1877). 

See also: Cruver v. Commissioner of Internal Revenue, 142 F.2d 

363 (4th Cir. 1944); and United States v. Agrillo-Ladlad, 675 

F.2d 905 (7th Cir., 1982) cert denied, 459 U.S. 829 (1982). 

Determination of legislative intent by examination of 

congressional publications is not conclusive. The rationale 

and explanation for one legislator's statement may not be the 



• 
persuasive factor in securing his co-legislator's vote. 

However, committee reports and floor debates are the only 

information available to determine what Congress had in mind at 

the time of a bill's enactment. In search of a statement 

concerning the application of the Voting Rights Act to the 

elected members of the judiciary, the House and Senate reports, 

• the House-Senate Conference Committee reports, and the floor 

debate in the two Congressional Chambers were consulted for the 

intent for the Voting Rights Act of 1965 and subsequent 

amendments in 1970, and 1975 as well as 1982. 

Our exhaustive analysis of the legislative history of 

Section 2 has discovered no mention of state court judges 

whatsoever. However, several statements were made as to what 

the bill does encompass. 

The conclusions that can be drawn from the conspicuous 

absence of mention of the judiciary are: (1) as not all 

member's of the judiciary are elected, it is impossible that the 

Voting Rights Act encompassed the judiciary in its entirety, 

and thus a distinction may be made between the judiciary and 

the legislature; (2) the fact that judges are not included in 

examples and statistics presented during debate demonstrate the 

absence of the speaker's intent that they be covered; and (3) 

examination of selected publications on the 1965 bill and each 

amendment reveals that at no time was coverage of the judiciary 

addressed. 

The following statements clearly show that the Voting 

• Rights Act was not intended to cover the elected judiciary: 



1965 BILL 

Senator Kennedy [on May 7, 1965], who voted`with the 

majority stated: 

• The voting rights bill before us, which the 
President of the United States presented to 

• us so eloquently, as we all remember at the 
• time of the crisis in Selma, Ala., will have 
• its greatest effect in State elections. It 
• is designed to give Negro citizens the right 
• to participate in the choice of their 
• sheriffs, •their mayors, their State 

• legislators, and their Governor - all the 
State and local officeholders whose 

• activities have such an impact on their 
lives - including the officeholders who have 
been so prominent in discriminatory practice 
against Negro citizens. 

Congressional Record 9913 (1977). 

1970 AMENDMENT 

During Senate floor debate, 3-2-70 at p. 5520, the 
speaker refers to the bill's applicability to "at large" 
elections and uses the example of Louisiana police jury 
elections. 

Congressional Record 5520 (1970). 

During Senate floor debate, the speaker mentions 
elections to police juries, school boards, annexation tactics. 
Id. at 5535. 

• During Senate floor debate, Senator Dole at March 5, 
1970 quotes the House report Statement of Representative 
Richard H. Poff: 

A government of the people cannot function 
for the people unless it is a government by 
the people. There is no such thing as 
self-government if those subject to the law 
do not participate'in the process by which 
those laws are made. Only a few are 
privileged to participate directly in the 
process by which those laws are made. Only 
a few are privileged to participate directly 
in the physical mechanics of the lawmaking 
process, and these are those chosen as 
representatives by their fellows. For all 



others, the opportunity for participation, 
and therefore the essence of the concept of 
self-government, is the right to cast a 
ballot to choose those who make the laws. 
If this opportunity is denied any qualified 
citizen, then is not self-governed... 

Senator Dole continued: 

I referred to the statement of the 
illustrious representative from Virginia, 
Mr. Poff, in my statement, to emphasize, as 
the Senator from Wyoming has done, that is a 
profound statement and one of the best 
available concerning the Voting Rights Act. 

Representative Poff is recognized nationally 
as one of the most able lawyers in Congress 
and one of the most effective and fair 
minded Members of Congress... Id. at 6160 

During Senate floor debate, the speaker stated: 

...But there is one basic issue which cannot be 
obscured or forgotten, no matter how lengthy or 
expressive the debate. •This is the fact that all 
citizens have an inalienable right to participate in 
the process by which they are governed. Id, at 6644 

1975 AMENDMENT 

The House Committee Report, No. 94-196 at p. 7 reads: 

In much the same manner as improved registration rates 
have been documented for blacks in covered southern 
jurisdictions, so also has there been improvement in 
those areas in terms of an increasing number of black 
elected officials...After the November 1974 elections, 
those states could boast of one black (sic) member of 
the United States Congress, 68 black state 
legislators, 429 black county officials, and 497 black 
municipal officials (Hearings, 1032). 

The Report continued with statistics counting the 

number of state,legislative seats over time held by black 

citizens. 

The Senate Committee Report, No. 94-295, at p. 14 

reads: 



• 
In much the same manner as improved registration rates 
have been documented for blacks in covered southern 
jurisdictions so also has there been improvement in 
those areas in terms of an increasing number of black 
elected officials. One estimate suggest that only 72 
blacks served as elected officials in 11 states in 
1965, including the southern states presently covered 
by the Act. (Hearings, 115 by April 1974, the total 
of black elected officials in the 7 southern states 
covered by the Act had increased to 963. After the 
November 1974 elections, those states could boast of 
one black member of the United States Congress, 68 
black state legislators, 429 black county officials, 
and 497 black municipal officers (TYA 49). This rapid 
increase in the number of black elected officials 
marks the beginning of significant changes in 
political life in the covered southern jurisdictions. 
(TYA 52) 

The Report continued with statistics counting the 

number of state legislative seats over time held by black 

citizens, just as in the House Report. This shows a consensus 

of intent in the two houses. 

1982 AMENDMENT  

The House Committee Report, No. 97-227 at p. 14 reads: 

The observable consequences of exclusion from 
government to the minority communities in the covered 
jurisdictions has been (1) fewer services from 
government agencies, (2) failure to secure a share of 
local government employment, (3) disproportionate 
allocation of funds, location and type of capital 
projects, (4) lack of equal access to health and 
safety related services, as well as sports and 
recreational facilities, (5) less than equal benefit 
from the use of funds for cultural facilities, and (6) 
location of undesirable facilities, e.g. garbage 
dumps, or dog pounds, in minority areas. 

(Note that the consequences listed all refer to 
essentially legislative functions.) 

The House Committee Report, No. 97-227 at p. 30 refers 

to the dangers of at-large elections but concludes that not all 

at-large elections are violations of the Act: 



Section 2 prohibits any voting qualification, 
prerequisite, standard, practice or procedure which is 
discriminatory against racial and language minority group 
persons or which have been used in a discriminatory manner to 
deny such persons an equal opportunity-to participate in the 
electoral process. This is intended to include not only voter 
registration requirements and procedures, but also methods of 
election and electoral structures, practices and procedures 
which discriminate...strong link between at-large elections and 
lack of minority representation. Not all at-large election 
systems would be prohibited under this amendment, however, but 
only those which are imposed or applied in a manner which 
accomplishes a discriminatory result. 

The House Committee Report also contains language 
pertinent to the overall issue while not necessarily revealing 
anything about legislative intent regarding the judiciary: 

At page 30, the report reads: 

•The proposed amendment (to Section 2) does not create 
a right of proportional representation...This is not a 
new standard. In determining the relevancy of 
evidence the court should look to the context of the 
challenged standard, practice or procedure. The 
proposed amendment avoids highly suggestive factors 
such as responsiveness of elected officials to the 
minority community. Use of this criterion creates 
inconsistencies among court decisions on the same or 
similar facts and confusion about the law among 
government officials and voters. An aggregate of 
objective factors should be considered such as a 
history of discrimination affecting the right to vote, 
racially polarity voting which impedes the election 
opportunities of minority group members, 
discriminatory elements of the electoral system such 
as at-large elections, a majority vote requirement, a 
prohibition on single-shot voting, and numbered posts 
which enhance the opportunity for discrimination, and 
discriminatory slating or the failure of minorities to 
win party nomination.'" All of these factors need 
not be proved to establish a Section 2 violation. 

...It would be illegal for an at-large election scheme 
for a particular state or local body to permit a bloc 
voting majority over a substantial period of time 
consistently to defeat minority candidates or 
candidates identified with the interests of a racial 
or language minority... 

(4) During Senate floor debate, at p. 6502 on 6-9-82, 
Senator Hatch, who managed the bill but expressed reservations 
about it, stated: 

-16-



• 
The at-large system of election is the principal 
immediate target of proponents of the result test. 4 
Despite repeated challenges to the propriety of the 
at-large systems, the Supreme Court has consistently 
rejected the notion that the at-large system of 
election is inherently discriminatory toward 
minorities. 5 The Court in Mobile (Mobile v. Bolden, 
446 U.S. 55) has observed that literally thousands of 
municipalities and other local governmental units 
throughout the Nation have adopted an at-large 
system. 6 

To establish a results test in Section 2 would be to 
place at-large systems in constitutional jeopardy 
throughout the Nation, particularly if jurisdiction 
with such electoral systems contained significant 
numbers of minorities and lacked proportional 
representation on their elected representative 
councils or legislatures... 

Section 2's explicit use of the word "representative" 

together with the historical distinction between the judiciary 

and officials who govern and an analysis of Congressional 

publications which only speak of representative officials, 

clearly indicate Congress's intent that elected state court 

judges should not be subjected to the Section 2 dilution 

analysis. • 

As previously noted, voter dilution cases have their 

origin in the one-person, one-vote representation cases. See 

e.g., Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 

817 (1969). As also previously demonstrated, the courts have 

consistently held that judges are not subject to the 

one-person, one-vote doctrine. Logically then, judicial 

offices are not subject to voter dilution analysis. 

The defendants recognize that the Fifth Circuit has 

held in Voter Information Proiect, Inc. v. City of Baton Rouge, 

612 F.2d 208 (5th Cir. 1980), that a Fourteenth and Fifteenth 

-17-
Li> 



Amendment racial dilution claim was stated as to the at-large, 

post election of city and district judges in Louisiana where 

the plaintiffs alleged that the statutes were adopted for a 

racially discriminatory purpose and operated to dilute black 

voting strength. The Fifth Circuit concluded: "If plaintiffs 

can prove that the purpose and operative effect of such purpose 

of the at-large election schemes in Baton Rouge is to dilute 

the voting strength of black citizens, then they are entitled 

to some form of relief." Id, at 212. The Fifth Circuit went 

on to note that the plaintiffs sought declaratory and 

injunctive relief and the implementation of a single-member 

district scheme but the court stressed that it initiated "no 

view concerning what relief would be appropriate assuming 

plaintiffs could prove their allegations." Id. at 212 n.5. 

In the present case, no claim is made by petitioners 

that the present Louisiana constitutional and statutory 

provisions governing the election of justices of the Supreme 

Court of this State were intentionally discriminatory. Without 

such an allegation, petitioner cannot establish a violation of 

the 14th and 15th amendments. City of Mobile. Ala. v. Bolden, 

446 U.S. 55, 100 S.Ct. 1490 (1980). Bolden has not been 

overruled and is still precedential in this regard, although 

•Congress subsequently amended •§2 of the Voting Rights Act to 

remove the requirement of proof of an invidious purpose from 

cases arising out of all but judicial elections. 

Multimember districts are not per se unconstitutional, 

nor are they necessarily unconstitutional when used in 

combination with single-member districts in other parts of a 



state, unless they "are being used invidiously to cancel out or 

minimize the voting strength of racial groups." White v.  

Register, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed. (2d) 314 

(1973).. Petitioners have not claimed such invidious use. 

CONCLUSION  

For the foregoing reason, defendants respectfully urge 

this court to dismiss the complaint at Petitioner's costs. 

Respectfully submitted, 

WILLIAM J. GUSTE, JR. 
ATTORNEY GENERAL 

KENDALL L. VICK 
ASSISTANT ATTORNEY GENERAL 

EAVELYN T. BROOKS 
ASSISTANT ATTORN7—GENERAT03---__ 

CERTIFICATE OF SERVICE  
I certify that a copy of the foregoing pleading has been 
served upon courisel for all parties by mailing the same 

to each, prpperly addressed .and ipostage prepaid 

tbh. CrdaY. : • ick 67, 4 . 
• • /--; • • . •c..) 
• • C /  

BY: 

k 

ALL L. VI 
A ISTANT,6T- RNEY GENERAL 
LO ISIANA DEPARTMENT OF JUSTICE 
234 LOYOLA AVENUE, 7TH FLOOR 
NEW •RLEANS, LOUISIANA 70112 
PHONE: (504) 568-5575 

SPECIAL ASSISTANT ATTORNEY GENERALS: 

M. Truman Woodward, Jr., Esq. 
1100 Whitney Building 
New Orleans, Louisiana 70130 

Blake G. Arata, Esq. 
210 St. Charles Avenue 
Suite 4000 
New Orleans, Louisiana 70170 

A. R. Christovich, Esq. 
1900 American Bank Building 
New Orleans, Louisiana 70130 

Moise W. Dennery, Esq. 
21st Floor Pan American Life Center 
601 Poydras Street 
New Orleans, Louisiana 70130 



UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA 

-RONALD CHISOM, MARIE BOOKMAN, CIVIL ACTION 
WALTER WILLARD, MARC MORIAL 
LOUISIANA VOTER REGISTRATION/ NUMBER: 86-4075 
EDUCATION CRUSADE, AND HENRY A. 
DILLON, III SECTION "A" 

Plaintiffs 

VERSUS 

EDWIN EDWARDS, in his capacity 
as Governor of the State of 
State Louisiana, JAMES H. BROWN, * CLASS ACTION 
in his capacity as Secretary of 
the State of Louisiana; and 
JERRY M. FOWLER, in his capacity * 
as Commissioner of Elections of 
the State of Louisiana 

Defendants 

* * * * * * * * * * * * * * * * * 

ORDER  

IT IS ORDERED that the action against the defendants, 

Edwin Edwards •in his capacity as Governor of the State of 

Louisiana; James H. Brown, in his capacity as Secretary of 

State of the State of Louisiana; and Jerry M. Fowler, in his 

capacity as Commissioner of Elections of the State of 

Louisiana, be dismissed for failure to state a claim upon which 

relief can be granted pursuant to Federal Rule of Civil 

Procedure 12 (b)(6), at plaintiff's cost. 

New Orleans, Louisiana, this   day 

of  , 1987. 

UNITED STATES DISTRICT JUDGE