Roemer v Chisom Petitioners Reply Brief

    No. 88-327

In The
Supreme Court of the United States

October Term, 1988
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BUDDY ROEMER, in his capacity as Governor of the State of 
Louisiana; FOX McKElTHEN, 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,

vs.
Petitioners,

RONALD CHISOM, MARIE BOOKMAN, WALTER WILLARD, 
MARK MORIAL, LOUISIANA VOTER REGISTRATION/EDU­
CATION CRUSADE, and HENRY A. DILLON, 111,

Respondents.
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PETITIONERS' REPLY BRIEF

ROBERT G. PUGH 
Counsel of Record 

ROBERT G. PUGH, JR.
330 Marshall Street, Suite 1200 

Shreveport, LA 71101 
(318) 227-2270

M. TRUMAN WOODW ARD, JR. A. R. CHRISTOVICH 
909 Poydras Street 2300 Pan American Life Center
Suite 2300 601 Poydras Street
New Orleans, LA 70130 New Orleans, LA 70130
BLAKE G. ARATA MOISE W. DENNERY
201 St. Charles Avenue 601 Poydras Street
New Orleans, LA 70130 New Orleans, LA 70130

SPECIAL ASSISTANT ATTORNEYS GENERAL
WILLIAM J. GUSTE, JR.
ATTORNEY GENERAL 

Louisiana Department of justice 
234 Loyola Avenue, 7th Floor 

New Orleans, Louisiana 70112 
(504) 568-5575

November 2,1988

COCKLE LAW BRIEF PRINTING CO.. (800) 225-6964 
or call collect (402) 342-2831



1.

Page
TABLE OF CON TEN TS................................................. i
TABLE OF AUTHORITIES ......................................... ii

I. The National Importance Of Tire Question Pre­
sented Justifies The Court’s Immediate Consid­
eration ........................................................................  1

II. Reliance On The Attorney General’s Interpreta­
tion Of The Voting Rights Act Is Misplaced.......  4

III. The Martin Decision Does Not Foreclose The
Question Of The Applicability Of Section 2 Of 
The Voting Rights Act To A State Judicial Se­
lection Process .............................. -...........................  6

IV. The Experience Of The Courts With Section 5
Would Not Be Relevant In Determining Inter­
pretation Of Section 2 ............................................... 7

CONCLUSION ....................................................................  10

TABLE OF CONTENTS



11.

TABLE OF AUTHORITIES

Oases :
Page

Marzuq A. Al-Ilakim, et al. v. State of Florida,
88-1416 Civ-T-10 “A ” (M.D.Fla.) ................................  3

Arnold, et al. v. Roemer, et al., Civil Action No.
88-3983 (E.D.La.) ............................................................  3

Buchanan v. Rhodes, 249 F. Snpp. 860 (N.D. Ohio), 
appeal dismissed, 385 U.S. 3 (1966) .... ........................  6

Chisom v. Edwards, 839 F. 2d 1056 (5th Cir. 1988)...Passim
Chisom v. Roemer, 853 F. 2d 1186 (5th Cir. 1988)...Passim
Clark v. Edwards, Civil Action No. 86-435 (A)

(M.D.La.) .................................................................... Passim
Clark v. Roemer, Civil Action No. 88-3626 (5th Cir.

Edelman v. Jordan, 415 U.S. 651 (1974) .............. ...........  6
Helvering v. City Bank Farmers Trust Co., 296

U.S. 85 (1925) ................................................................  9
Holshouser v. Scott, 335 F. Snpp. 928 (M.D.N.C.

1971) aff’d, 409 U.S. 807 (1972) ................................. 6
Martin v. Haith, 477 U.S. 901 (1986) ............................. 6
New York State Association of Trial Lawyers v.

Rockefeller, 267 F. Snpp. 148 (S.D.N.Y. 1967)........  6
Perrin v. United States, 444 U.S. 37 (1979) .................  9
Richardson v. Ramirez, 418 U.S. 24 (1974) (Mar­

shall, Douglas, & Brennan, J., dissenting) ...............  7
Thornburg v. Gingles, 478 U.S. 30 (1986)...............Passim
Tully v. Griffin, 429 U.S. 68 (1976) ... ...........................  6



111.

TABLE OF AUTHORITIES—Continued
Page

Statutory P rovisions :

42 U.S.C. § 1973
The Voting Rights Act ...........................................Passim

Senate Report on the Voting 
Rights Act, S. Rep. No. 1992,
97th Cong., 2d Sess. (1982) ........................................ 7

Mississippi Code of 1972 Annotated .............................  5
§ 9-1-1 Supreme Court Districts ...............................  5
§ 65-1-3 State Highway Commission...........................  5
§ 77-1-1 Public Service Commission ...........................  5



PETITIONEES’ EEPLY BRIEF

I. The National Importance Of The Question Presented
Justifies The Court’s Immediate Consideration.
The fact that 42 states are affected by the Fifth Cir­

cuit’s holding’ in the Chisom case justifies the Court’s 
immediate consideration as to the applicability of Section 
2(b) of the Voting Rights Act to state electoral judicial 
selection systems.

The respondents argue that consideration of this 
case by the Court at this time is premature and should 
await a trial on the merits. Louisiana contends that such 
a delay would be to shut the barn door after the horse 
has run away—not only in Louisiana but in the seven other 
states in which parallel suits have been brought, and, 
potentially, in all of the forty-two states where judges are 
elected. Phrased differently, this Court will be deprived 
of a meaningful opportunity to review the merits because 
a remedy will already be in place.

Relying upon the decision by the United States Court 
of Appeals for the Fifth Circuit in this case that Section 
2 of the Voting Rights Act applies to judges, the district 
court in Clark v. Edwards has ordered the State of Louisi­
ana to rewrite completely its system of electing trial, 
family court, and appellate judges by January 31st, 1989. 
I f  Louisiana fails to meet this deadline or if its plan is 
not accepted by the trial judge, he will himself fashion 
a new system. Pursuant to that court order, the Governor 
of Louisiana has appointed a commission for revision of 
the judiciary selection process and has stated that a special 
session of the legislature will be called in January to con­
sider this question. I f this Court does not agree to hear

1



2

the Chisom case, Louisiana faces the real possibility (in­
deed probability) that a new system will be adopted and 
put in place long before this Court holds whether any re­
structuring was actually necessary.

Arguing against immediate review in an amicus brief, 
the Solicitor General downplays the importance of this 
case, stating that there “ have been very few complaints 
under Section 2 against judicial electoral systems.” Brief 
at 5. In stark contrast to this position, the United States 
Attorney General has certified this case to be of general 
public importance. Actually, more than “very few com­
plaints” are involved—indeed, eight states already face 
such challenges. In the Illinois suit, 201 state judges have 
been joined as parties.

I f the question is of little significance, why have eight 
states filed amici briefs urging review by this Court? Why, 
also, did the United States file an amicus brief in the Fifth 
Circuit after the District Court had held for the State of 
Louisiana, and assert in brief page 1 “ fsjince this is the 
first court of appeals to address the issue, the United 
States has considerable interest in the case’s outcome” ? 
Why did the United States intervene in this case after the 
Fifth Circuit had vacated the injunction as imposed by 
the District Court? All of this activity on the part of the 
United States, including the filing of an amicus brief with 
this Court, underscores the importance of the issue posed 
in the petition for certiorari. Since the petition was filed, 
another suit has been filed in Louisiana, as anticipated in 
the petition for certiorari [page 9]. This third suit in­
volves all of the judges in the State of Louisiana not cov­
ered by either the Chisom or Clark case, the Juvenile, Mu­



nicipal/City, Parish and Traffic Court judges. Arnold et 
al. v. Roemer, et al., No. 88-3983, United States District 
Court for the Eastern District of Louisiana. Also, since the 
petition for certiorari was filed, another suit was filed 
on September 21st, 1988.. Marzuq A. Al-Hakim, et al. v. 
State of Florida, 88-1416-CIV-T-10 “ A ” , U.S.D.C. M.D. 
Fla, Tampa Division.

Guidance by this Court at this time is necessary to 
prevent uncertainty from plaguing states which elect 
judges. Such confusion is illustrated by the “ on again, 
off again”  status of the 1988 Louisiana Supreme Court 
election in the district involved in this case. On May 9th, 
1988, the plaintiffs first moved to stop the October 1st, 
1988 judicial election, filing a motion for injunction in the 
Fifth Circuit. After this was denied by that Court, the 
plaintiffs immediately sought an injunction by the district 
court. On July 7th, 1988, the injunction was granted and 
the election was enjoined. On July 26th, 1988, the in­
junction was partially lifted by the Fifth Circuit to allow 
qualifying, although no statement was made as to whether 
the election would ultimately be allowed. On August 3rd, 
1988, the Fifth Circuit lifted the entire injunction after 
hearing arguments by the State, the plaintiffs, the incum­
bent Justice seeking reelection, his 1988 opponent, and the 
incumbent in the seat to be filled by election in 1990. The 
Court did impose an unprecedented “ second chance”  
qualifying period. Only after an application for rehearing 
en banc was denied on September 14th, 1988, (two and 
one half weeks before the scheduled election) could the 
public know that there would in fact be a 1988 election.

Similar uncertainty has pervaded the elections for 
state trial and appellate judges in Louisiana in 1988. The



4

plaintiffs in Clark v. Edwards sought to enjoin all judicial 
races scheduled for the October 1st, 1988 election. The 
district court granted an injunction in three opinions dated 
August 10th, 11th, and 15th, 1988. The district court then 
modified its order to allow qualifying. Despite the Fifth 
Circuit’s ruling allowing the Louisiana Supreme Court 
election in CMsom, the Clark district court continued to 
enjoin the election. The Fifth Circuit reversed this in­
junction on September 7th, 1988. Only after an applica­
tion for a stay [A-198] was denied by Justice Byron White 
on September 12, 1988, and by this entire Court on Septem­
ber 27th, 1988, (the latter only four days before the election) 
did the Louisiana public know that there would be 1988 
elections.

Clearly, then, a decision by this Court at this time is 
vitally necessary to reduce uncertainty and confusion 
among the judiciary and populace of the forty-two states 
who have chosen to elect their judges. Indeed, the Solicitor 
General has virtually admitted the necessity of such guid­
ance in an amicus brief, stating that the differing function 
of judges may influence whether a Section 2 violation has 
occurred and what the appropriate remedy will be. Brief 
at 10 n.8. I f  the Solicitor General is stating that the 
Gingles factors are or could be inappropriate, that issue 
should be resolved now before Louisiana and as many as 
41 other states have scrapped their current system of 
electing judges.

II. Reliance On The Attorney General’s Interpretation 
Of The Voting Rights Act Is Misplaced.

The respondents in brief, 22-23, suggest the infallibili­
ty of the Attorney General’s interpretation of the Voting



5

Rights Act. The Attorney General’s views of this statute, 
however, have been inconsistent. In Thornburg v. Gingles, 
478 U.S. 30 (1986) the Solicitor General sided with the 
Attorney General of North Carolina and sought reversal 
of the district court’s interpretation of Section 2 of the 
Voting Rights Act. In Gingles, id at 43, fn. 7, this Court 
stated:

The United States urges this Court to give little 
weight to the Senate Report, arguing that it repre­
sents a compromise among conflicting “ factions,”  and 
thus is somehow less authoritative than most Commit­
tee Reports. Brief for United States as Amicus Curiae 
8, n.12, 24, n.49.

Now this same Solicitor General sides with the respondents 
in this matter concerning an interpretation of Section 2(b) 
of the Voting Rights Act and is now prepared to embrace 
the same legislative history that he renounced in the 
Gingles case. Brief of the United States as Amicus Curiae, 
9-10. In fn. 7, 10, Senator Hatch’s oft-quoted observation 
concerning “ judicial districts”  is mentioned. What has 
never been mentioned by any of the quoters of this lan­
guage, including the Fifth Circuit in Chisom, is the fact 
that a judicial district is considered a geographic area by 
some states and both executive and legislative officers are 
elected from such districts. For instance, in Mississippi, 
the Highway Board and Public Service Commission are 
elected from Mississippi’s Supreme Court Districts. §§9- 
1-1, 65-1-3, and 77-1-1, Mississippi Code of 1972 Annotated.



6

III. The Martin Decision Does Not Foreclose The Ques­
tion Of The Applicability Of Section 2 Of The Voting 
Rights Act To A State Judicial Selection Process.

The respondents note that in Martin v. Ilaith, 477 
U.8. 901 (1986), this Court summarily affirmed a district 
court decision that Section 5 of the Voting Rights Act 
applies to the state judiciaries. That section, however, 
does not use the crucial limiting term “ representatives,”  
a term with a plain meaning long construed by this Court 
Indeed, this Court has recognized a distinction between the 
judiciary and other branches of the government in sum­
marily affirming a decision that the “ one man, one vote”  
principle does not apply to the judiciary. Holshouser v. 
Scott, 409 U.S. 807 (1972). The district court decision in 
Holshouser noted the difference between election of the 
judiciary and “ election of the representatives of the peo­
ple— officials who make laws, levy and collect taxes, and 
generally manage and govern people.”  Holshouser v. 
Scott, 335 F. Supp. 928, 930 (M.D.N.C. 1971). Judges, on 
the other hand, “ do not govern nor represent people nor 
espouse the cause of a particular constituency.”  Id. at 
932; accord, New York State Association of Trial Lawyers 
v. Rockefeller, 267 F. Supp. 148 (S.D.N.Y. 1967); Bu­
chanan v. Rhodes, 249 F. Supp. 860 (N.D. Ohio), appeal 
dismissed, 385 U.S. 3 (1966).

In reality, neither the summary affirmance in Martin 
nor in Holshouser govern the issue presented in this case. 
Even if either constituted an instructive precedent, such 
a summary affirmance is “ not of the same precedential 
value as would be an opinion of the Court treating the 
question on the merits.” Edelman v. Jordan, 415 U.S. 651, 
671 (1974); accord, Tully v. Griffin, 429 U.S. 68, 74-75



7

(1976); Richardson v. Ramirez, 418 U.S. 24, 83 n. 27 (1974) 
(Marshall, Douglas, & Brennan, J., dissenting).

IV. The Experience Of The Courts With Section 5 Would 
Not Be Relevant In Determining Interpretation Of 
Section 2.

Section 2 of the Voting Rig’hts Act, as amended, cre­
ated a “ results”  test while the unamended Section 5 of 
the Voting Rights Act has always applied an “ effects”  
test. The two sections serve entirely different purposes. 
Section 5 has a limited applicability—only to specific 
targeted states where voting statutory changes may not 
occur without Justice Department approval [preclearance]. 
Section 2, however, applies to the voting statutes of all 
states as written and applied before and after the 1982 
amendment. A  Section 2 violation must be established 
through a full judicial evidentiary hearing, in which the 
plaintiff carries the burden of proof. A Section 5 determi­
nation is made initially administratively, mostly through 
correspondence. I f  the Section 5 change is found objection­
able, then the finding is subject to judicial review in the 
United States District Court for the District of Columbia, 
with the state bearing the burden of proof.

In commenting on the comparison of the. “ results”  
test [Section 5] with the “ effects”  test [Section 2], the 
Senate Report on the Voting Rights Act, S. Rep. No. 1992, 
97th Cong., 2d Sess. (1982) stated:

“ The confusion introduced by the results test is illu­
strated somewhat by the near-total disagreement as 
far as one of the most basic questions involved in the 
analysis: Does the ‘ results’ test proposed in section 
2 mean the same thing as the ‘effects’ test in section 
5? Despite the fundamental importance of this mat­



8

ter, there has been disagreement among witness after 
witness on this.”

Id. at 31.
“ During the course of both the House and Senate 
hearings on the Voting Rights Act, approximately 
half of the witnesses who discussed this issue claimed 
that the results test in section 2 was similar or iden­
tical to the effects test in section 5, and hence that 
the judicial history of interpretation under section 5 
was relevant; the other half argued that it meant some­
thing substantially or totally dissimilar.”

Id. at 32.

Interestingly, Julius L. Chambers, one of the counsel 
for the respondents herein testified concerning the dif­
ference between Section 2 and Section 5:

Question: What is the relationship between the
results test in section 2 and the effects test in sec­
tion 5?

Chambers: They are not the same test . . .
Question: In other words, the experience of the

courts with section 5 would not be relevant in deter­
mining how section 2 is likely to be interpreted?

Chambers: That is correct.
Id. at 31-32.
Similarly, Professor Archibald Cox observed:

I f  you mean the effects test as interpreted by the 
courts with regard to section 5, I think that is con­
siderably different from the results test in section 2.

Id. at 32.

Forewarned by these differing opinions from con­
gressional witnesses as to the applicability of the Section 
2 “ results”  test, the Fifth Circuit should have turned to



9

the plain meaning of the word “ representatives”  as used 
in the Statute. Section 5 does not use the term “ repre­
sentatives.”  Indeed the term “ representatives”  appears 
nowhere in the Voting Bights Act except in Section 2(h). 
If Congress had intended “ representatives”  to mean 
“ elective officials”  (which would have included judges) it 
could easily have said so. Using the term “ representa­
tives”  demonstrates Congress meant something other than 
all elected officials. By enlarging the meaning of the 
word “ representatives”  to include state court judges, the 
Fifth Circuit was not interpreting the words of the Statute, 
but rather was amending the language to make the Statute 
say something else. Congress made no attempt to define 
the word “ representatives.”  “ A fundamental canon of 
statutory construction is that, unless otherwise defined, 
words will be interpreted as taking their ordinary, con­
temporary, common meaning. [Citations omitted] ”  Per­
rin v. United States, 444 U.S. 37, at 42 (1979). As this 
Court has counseled, “ we are not at liberty to construe 
language so plain as to need no construction, [fn. cita­
tions omitted] or to refer to committee reports where there 
can be no doubt of the meaning of the words used [fn. 
citations omitted]. Helvering v. City Bank Farmers Trust 
Co., 296 U.S. 85, at 89 (1925).

o



10

CONCLUSION

The question presented for the Court’s consideration 
impacts forty-two states. It would be difficult to en­
vision a question of greater importance to these affected 
states than the continued viability of their judicial systems. 
The resolution of the question presented needs to occur 
now.

All of the above and foregoing is thus respectfully 
submitted.

R obebt G. P ugh 
Counsel of Record 

R obebt G. P ugh , J b .
Of the Law Firm of 

P ugh and P ugh 
Suite 1200 

330 Marshall Street 
Shreveport, Louisiana 71101 

(318) 227-2270

[Remaining counsel for petitioners reflected on the cover.]