Chisom v. Roemer Brief for Plaintiffs-Appellants

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 89-3654

RONALD CHISOM, et al. ,
Plaintiffs-Appellants.

UNITED STATES OF AMERICA,
Plaintiff-Intervenor-Appellant. 

v.
CHARLES E. ROEMER, et al. ,

Defendants-Appellees

On Appeal from the United States District Court 
for the Eastern District of Louisiana

BRIEF FOR PLAINTIFFS-APPELLANTS

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

ROY RODNEY, JR.
McGlinchey, Stafford,
Mintz, Cellini, Lang 
643 Magazine Street 
New Orleans, LA 70130 
(504) 586-1200

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

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

RONALD L. WILSON
310 Richards Building 
837 Gravier Street 
New Orleans, LA 70112 
(504) 525-4361

C. LANI GUINIER
University of Pennsylvania 

School of Law 
3400 Chestnut Street 
Philadelphia, PA 19104-6204 
(215) 898-7032



CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel certifies that the following 

listed person's have an interest in the outcome of this case. These 
representations are made in order that the Judges of this Court may 
evaluate possible disqualification or recusal.

1. The plaintiffs in this action: Ronald Chisom, Marie 
Bookman, Walter Willard, Marc Morial, Henry Dillon III, and 
Louisiana Voter Registration/Education Crusade, a non-profit 
corporation.

2. The attorneys who represented the plaintiffs: Julius L. 
Chambers, Judith Reed, Sherrilyn A. Ifill, of the NAACP Legal 
Defense & Educational Fund, Inc.; Pamela S. Karlan; C. Lani 
Guinier; William P. Quiqley; Roy Rodney of the law firm of 
McGlinchey, Stafford, Mintz, Cellini, Lang? and Ronald L. Wilson.

3. The attorneys who represented the plaintiff-intervenor 
United States of America: Gerald W. Jones, Steven H. Rosenbaum, 
Robert S. Berman.

4. The defendants in this action: Charles Roemer, Governor 
of the State of Louisiana; W. Fox McKeithen, Louisiana Secretary 
of State; and Jerry M. Fowler, Commissioner of Elections of the 
State of Louisiana.

5. The attorneys who represented the defendants: Robert G. 
Pugh; Kendall Vick; Moise W. Dennery of the law firm of Lemle, 
Kelleher, Kohlmyer, Dennery, Hunley, Frilot; Blake Arata; M. Truman 
Woodward, Jr. of the law firm of Milling, Benson, Woodward,



Hillyer, Pierson, Miller; and A.R. Christovich of the law firm of 
Christovich, Kearney.

6. The attorneys who represented the defendants-intervenors: 
George M. Strickler of the law firm of LeBlanc, Strickler, 
Woolhandler; Peter J. Butler of the law firm of Sessions, Fishman, 
Voisfontaine, Nathan, Winn, Butler, Barkley; and Moon Landrieu.

Attorney of record for plaintiffs-appellants

11



STATEMENT REGARDING ORAL ARGUMENT
Plaintiffs-appellants hereby request that this case be set for 

oral argument. This appeal presents several distinct and important 
legal issues. Although the resolution of many of the issues on 
appeal should not be difficult, given that the parties stipulated 
to virtually all the relevant facts, and the issues are governed 
by settled Supreme Court and Fifth Circuit precedent, we believe 
that oral argument would be valuable to the Court.

i n



TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS ............................  i
STATEMENT REGARDING ORAL ARGUMENT ............................  iii
STATEMENT OF JURISDICTION .....................................  1
STATEMENT OF THE ISSUES PRESENTED ............................  1
STATEMENT OF THE C A S E .......................................... 1

I. Proceedings Below ...................................  1
II. Statement of F a c t s .................................  3

A. The Louisiana Supreme Court .................  3
1. The Method of Selecting the Louisiana

Supreme Court ............................  3
2. Configuration of the Current Supreme Court

Districts .................................  4
B. Facts Related to the "Gingles Factors" . . . .  5

1. Black Population Size and Geographic
Compactness in Orleans Parish .............  6

2. Political Cohesion of Blacks in Orleans
Parish . .................................  7

3. Bloc Voting by White Voters in Elections
within the First District ................. 8

C. The "Senate Report" Factors .................  10
1. A History of Official Discrimination . . 10
2. Racial Polarization in Voting ...........  11
3. The Use of "Enhancing" D e v i c e s ............. 12
4. Candidate Slating Process ...............  12
5. Depressed Socioeconomic S t a t u s ....... 13-
6. The Role of Race in Political Campaigns . 14
7. Minority Electoral Success .............. 15

xv



8 . Tenuousness 16
D. The District Court's Findings of "Ultimate"

F a c t ............................................16
SUMMARY OF ARGUMENT............................................IV
A R G U M E N T ......................................................... 20

I. The District Court Misinterpreted The First Gingles
F a c t o r .................................................20
A. The Applicable Legal Standard .................. 20
B. The Evidence in this C a s e ....................22
C. The District Court Erred in Rejecting a Single-

Parish District at the Liability Phase of
T r i a l ............................................ 24

II. The District Court Made Critical Errors of Fact and
Law In Its Analysis Of Racially Polarized Voting . 26
A. The Applicable Legal S t a n d a r d .................  26

1. The Particular Salience of Elections
Involving Both Black and White
C a n d i d a t e s ................................. 27

2. The Legal Inconsequentially of Voting
Patterns in Elections Involving Only White 
C a n d i d a t e s ................................. 29

3. The Level of Black Support for Black
Candidates Necessary to Prove Political 
Cohesiveness ............................  29

4. The Meaning of Legally Significant White
Bloc V o t i n g ................................. 30

5. The Relevance of Voting Behavior Within
Majority-Black Subsections of Majority- 
White Districts............................. 31

B. The District Court's Errors in this Case . . .  34
1. The District Court Wrongly Ignored the 

Inability of Black Voters to Elect Black 
Candidates to the Louisiana Supreme
C o u r t ....................-.......... .. 34

2. The District Court Wrongly Relied on 
Contests Involving Only White 
C a n d i d a t e s ...............................37

v



3. The District Court Used an Improper
Standard for Assessing Black Political 
Cohesiveness ............................  38

4. There Was No Basis Whatsoever for the
District Court's Finding of Legally 
Sufficient White Crossover Support for 
Black C a n d i d a t e s ........................... 39

5. The District Court's Reliance on Black 
Electoral Success Within Orleans Parish
Was Misplaced............................... 40

C. The District Court's View of Judicial
E l e c t i o n s ........................................ 43

III. The District Court Made Factual And Legal Errors
With Regard To The Remaining Senate Factors . . . .  45

Historical Discrimination and Socioeconomic
Disparities................................. 46

Racial Appeals in Campaigns .................. 47
Enhancing Factors .............  . . . . . . .  48
Minority Electoral Success .................... 48
T e n u o u s n e s s ......................................49

C O N C L U S I O N ....................................................... 49

vi



TABLE OF AUTHORITIES
CASES

Anderson v. City of Bessemer City, N.C., 470 U.S. 564 . . 45
Anderson v. Martin, 375 U.S. 399 (1964) . . . . .  14
Baldwin v. Alabama, 472 U.S. 372 (1985) . . . . .  10
Bose Corp. v. Consumers Union of Inc, 466 U.S. 485 (1984) . 45
Brewer v. Ham, 876 F.2d 448 (5th Cir. 1989) . . . 18, 21, 22, 32
Brown V. Thompson, 462 U.S. 835 ( 1 9 8 3 ) .................. 23
Campos v. City of Baytown, 840 F.2d 1240 (5th Cir. 1988) . Passim
Chisom v. Edwards, 659 F. Supp. 183 (E.D. La. 1987) . . 2, 43
Chisom v. Edwards, 690 F. Supp. 1524 (E.D. La. 1988) . . 2, 3, 9
Chisom v. Edwards, 839 F.2d 1056 (5th Cir. 1988),

rehearing and rehearing en banc denied. . . . 2 ,  28, 43
Chisom v. Roemer, 853 F.2d 1186 (5th Cir. 1988) rehearing

and rehearing en banc d e n i e d ...........................2, 3
Citizens for a Better Gretna v. City of Gretna, 834 F.2d 

496 (5th Cir. 1987) cert, denied. 106 L. Ed. 2d 564 
(1989) . . . . . . . . . . . . .  Passim

Citizens for a Better Gretna v. City of Gretna,
636 F. Supp. 1113 (E.D. La. 1986), aff'd 834 F.2d 496
(5th Cir. 1987) cert, denied. 106 L. Ed. 2d 564 (1989) 36

Clark v. Edwards, Civ. Ac. No. 86-435
(M.D. La. Aug. 15, 1 9 8 8 ) ...............................  45

Dillard v. Baldwin County Board of Education, 686 F. Supp.
1459 (M.D. Ala. 1 9 8 8 ) ...................................  21

East Jefferson Coalition for Leadership and Development v.
Jefferson Parish, 691 F. Supp. 991
(E.D. La. 1 9 8 8 ) ......................................  11, 12, 33-

Gaffney v. Cummings, 412 U.S. 735 ( 1 9 7 3 ) .................. 21
Gingles v. Edmisten, 590 F. Supp. 345 (E.D.N.C. 1984) 33
Long v. Gremillon, Civ. Suit 142, 389, 9th Jud. Dist.

vii



Rapides Par. (Oct. 14, 1 9 8 6 ) ........................... 11, 47

LULAC V. Mattox, civ. Ac. No. 88-CA-154
(W.D. Tex-. November 15, 1989) . . . . . . .  45

Major v. Treen, 574 F. Supp. 325 (E.D. La. 1983) . . 11, 25, 40
Martin v. Allain, 658 F. Supp. 1183 (S.D. Miss. 1987) . . 45
McMillan v. Escambia County, 748 F.2d 1037 (11th Cir. 1984) . . 36
Rangel v. Mattox, Civ. Ac. No. B-88-053

(S.D. Tex. July 28, 1989) ............................... 45
Rogers v. Lodge, 458 U.S. 613 ( 1 9 8 2 ) ......................  32
Sobol v. Perez, 289 F. Supp. 392 ( 1 9 6 8 ) .................. 15
United States v. State of Louisiana, 692 F. Supp. 642

(E.D. La 1988) . . . . . . . . . . 13
United States v. State of Louisiana, Civil Action 80-3300

(W.D. Tex. Nov. 15, 1989) ............................  14
Velasquez v. City of Abilene, 725 F.2d 1017 (5th Cir. 1984) 47
Wells v. Edwards-, 347 F. Supp. 453 (E.D. La. 1972) , aff'd

per curiam. 409 U.S. 1095 ( 1 9 7 3 ) ......................  10, 23
Westwego Citizens for Better Government v. City of

Westwego, 872 F.2d 1201 (5th Cir. 1989) . . 18, 26, 46, 49
Wise v. Lipscomb, 437 U.S. 535 (1978)  ..................  11, 21

STATUTES, CONSTITUTIONAL PROVISIONS
28 U.S.C. § 1 2 9 1 ............................................  !
30 Fed. Reg. 9897 ( 1 9 6 5 ) ................................  10, 11
Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973 . 2, 19
42 U.S.C. § 1 9 7 3 b ............................................ ... 3 , 27
Civil Rights Act of 1964, 42 U.S.C. § 2000h-2 . . . .  2
La. Const, art. V § 22(b) . . . . . . . . .  4
House Report No. 96-227, 97th Cong. 1st Sess. (1981) . . 28
Senate Report No. 97-417, 97th Cong. 2d Sess. (1982) . 10, 11, 13

viii



U.S. Const. XIV

20, 27 
2

U.S. Const. XV ........................................MISCELLANEOUS
B. Grofman, Representation and Redistrictinq’ Issues 58
L. Guinier, "Keeping The Faith: Black Voters in the 

Post-Reagan Era," Harv. C.R.C.-L.L. Rev. 393 (1989)
New York Times, November 8, 1989 . . • _ •
P. DuBois, From Ballot to Bench: Judicial Elections and the 

Quest for Accountability (1980) ......................
Volcansek, "The Effects of Judicial-Selection Reform: What 

We Know and What We Do Not" in The Analysis of Judicial 
Reform 85 (P. DuBois ed. 1982) . . . . . .

2

28

28
44

44

44

ix



STATEMENT OF JURISDICTION
The district court entered final judgment dismissing the 

claims of plaintiffs and plaintiff-intervenor, United States, on 
September 14, 1989. Plaintiffs-appellants filed a notice of appeal 
on September 25, 1989. This Court's jurisdiction is invoked under 
28 U.S.C. § 1291.

STATEMENT OF THE ISSUES PRESENTED
1. Did the district court err in holding that the black 

population was not sufficiently large and geographically compact 
to constitute a majority in a single-member district, when, as the 
court found, (a) the overwhelming majority of black registered 
voters in the challenged at-large district reside in a definable 
subdistrict, Orleans Parish;- (b) a -district made up of Orleans 
Parish only would contain a black registered voter majority; and 
(c) minority voters in a district made up of Orleans Parish only 
would possess the potential to elect candidates of their choice?

2. Did the district court err in holding that there was no 
significant racially polarized voting in the challenged district, 
where black voters support black candidates and white voters 
support white candidates and whites consistently vote as a bloc to 
defeat black candidates?

3. Did the district court err in failing to apply the 
totality of circumstances test with regard to the relevant Senate 
Factors?

STATEMENT OF THE CASE
I. Proceedings Below

This voting rights action was commenced in September 1986 by 
five black individuals registered to vote in Orleans Parish, 
Louisiana, and a nonprofit corporation active in the field of



voting rights whose members are black registered voters in Orleans 
Parish.1 Plaintiffs sought to represent a class consisting of all 
black registered voters in Orleans Parish.

The complaint alleged that the system under which Justices of 
the Louisiana Supreme Court are elected in the First Supreme Court 
district ("First District") impermissibly dilutes the voting 
strength of the black voters of Orleans Parish, in violation of the 
Voting Rights Act of 1965 as amended, 42 U.S.C. § 1973 and the 
Fourteenth and Fifteenth Amendments to the United States 
Constitution. Amend. Compl. at 1. Defendants moved to dismiss the 
complaint for failure to state either a statutory or a 
constitutional claim. Dkt. Nr. 18. On May 1, 1987, the district 
court (Charles Schwartz, Jr., J.), ruled that section 2 of the 
Voting Rights Act does not apply to the election of judges and that 
plaintiffs had failed to plead an intent to discriminate with 
sufficient specificity to support their constitutional claims. 
Chisom v. Edwards. 659 F.Supp. 183 (E.D. La. 1987). In its June 
8, 1987, judgment, the court dismissed plaintiffs' complaint. Dkt. 
Nr. 25. This Court reversed that judgment and remanded for further 
proceedings. Chisom v. Edwards. 839 F.2d 1056 (5th Cir. 1988), 
rehearing and rehearing en banc denied, Chisom v. Roemer. 853 F.2d. 
1186 (5th Cir. 1988), cert, denied. 102 L.Ed.2d 379 (1988).

On remand, and after a hearing, the court granted plaintiffs' 
motion to enjoin the election for a Supreme Court seat in the First 
District scheduled for October 1, 1988. The preliminary injunction

On August 8, 1988, the United States' motion to intervene 
as a party plaintiff pursuant to Title XI of the Civil Rights Act 
of 1964, 42 U.S.C § 2000h-2, was granted.

2



was granted. Dkt. Nr. 43; 52; Chisom v. Edwards. 690 F. Supp. 1524
(E.D. La. 1988). This Court vacated the injunction. Chisom v. 
Roemer. 853 F.2d 1186. Shortly thereafter, plaintiffs moved for 
summary judgment, and that motion was denied. Dkt. Nr. 69. The 
matter was tried to the court on April 5, 1989. After issuing
findings of fact and conclusions of law, the court entered judgment 
in favor of all defendants. Dkt. Nr. 110. This appeal followed. 
II. Statement of Facts

The seven justices of the Louisiana Supreme Court are elected 
from six geographically defined judicial districts. Five of the 
justices are elected from single-member districts. Two are elected 
from the lone multimember district, the First District. The 
plaintiffs in this case are black registered voters who reside in 
Orleans Parish, one of the four parishes in the First District. 
They claim that their inclusion within the First District denies 
them an equal opportunity to elect a Justice to the Louisiana 
Supreme Court, in violation of section 2 of the Voting Rights Act 
of 1965 as amended, 42 U.S.C. § 1973b.

As this brief sets out below, the basic evidence supporting 
plaintiffs' claim was uncontested at trial2; this evidence is set 
out in Parts A through C of this Section. In Part D, we summarize 
the district court's interpretation of the evidence.

A. The Louisiana Supreme Court
1. The Method of Selecting the Louisiana Supreme Court
Justices must reside in the district from which they seek 

election. Only voters living in a particular district are eligible

2 Indeed, most of the evidence was admitted in the form of 
stipulations between the parties.

3



to vote in its judicial elections. RE 13, 14. Candidates for 
seats on the Supreme Court run in a preferential primary. If no 
single candidate receives a majority of votes in the preferential 
primary, the State's majority vote requirement dictates that the 
two candidates with the most votes in the primary compete in a 
general election for the Supreme Court. RE 14. Elections for the 
two Supreme Court positions from the First District are staggered, 
Id. , thus precluding voters from single-shot voting.

No black person has been elected to the Louisiana Supreme 
Court in this century. The only black person to serve on the 
Louisiana Supreme Court in this century, was appointed to a vacancy 
on the court for a period of 17 days during November 1979. Pre- 
Trial Order, Stipulations 46-47 (hereafter "Stip.")3 Under the 
Louisiana Constitution, he was not permitted to seek election to 
the seat for which he had been appointed. See La. Const, art. V 
§ 22(b).

2. Configuration of the Current Supreme Court Districts
The five single-member Supreme Court election districts 

consist of between eleven and fifteen whole parishes each. The 
First District consists of four whole parishes, Orleans Parish and 
three suburban parishes —  St. Bernard, Plaquemines and Jefferson 
Parishes.4 RE 14. The First District is the most populous 
election district in the State of Louisiana. Stip. 82.

3 For the Court's convenience, the parties' stipulations of 
fact are included in the record excerpts filed with this brief at 
RE 66 to 104.

4 No parish lines are cut by the election districts for the 
Supreme Court. RE at 14.

4



The Louisiana Constitution does not require that the election 
districts for the Supreme Court be apportioned equally by 
population. RE 14. Indeed, the total population deviation between 
districts is 74.95%. See RE 17 (comparinq Fourth and Fifth 
Districts).

Although blacks constitute 29% of the state's population, none
of the six Supreme Court election districts are majority black in
either total population in the number of registered voters. RE 16.
Although the First District is majority white in both total
population and in the number of registered voters, Orleans Parish
(which contains more than half of the First District's total
population) is majority black in both total population and
registered voter population.5 RE 15. The three other parishes are
each majority white in total population and registered voter
population. RE 15, 16.

B. Facts Related to the "Gingles Factors"
In Thornburg v. Gingles, 478 U.S. 30 (1986), the Supreme Court

identified three critical elements of a section 2 challenge to the
use of multimember election districts:

First, the minority group must be able to demonstrate 
that it is sufficiently large and geographically compact 
to constitute a majority in a single-member district.
. . . Second, the minority group must be able to show
that it is politically cohesive. . . . Third, the
minority must be able to demonstrate that the white 
majority votes sufficiently as a bloc to enable it —  in 
the absence of special circumstances, such as minority 
candidate running unopposed, . . .  —  usually to defeat 
the minority's preferred candidate.

5 As of March 3, 1988, 81.2% of black registered voters within 
the First District resided within Orleans Parish. RE at 15.

5



Id. at 50-51. In this case, the stipulations and uncontradicted 
evidence squarely establish the existence of each Gingles 
circumstance.

1. Black Population Size and Geographic Compactness in 
Orleans Parish

At trial, plaintiffs presented two plausible divisions of the 
existing First District that would result in the creation of a 
single-member district that is majority black in registered voter 
population. First, plaintiffs showed that the current district 
could be divided into two districts —  an Orleans Parish-only 
district and a suburban district containing Jefferson, St. Bernard, 
and Plaquemines Parishes. PX 2 . Each of these districts would have 
a larger population than the current Fourth District and would have 
a population roughly the size of the current Sixth District. 
Compare RE 16 (table showing that Orleans district would have total 
population of 557,515, leaving a suburban district with a 
population of 544,738) with RE 15 (table showing total populations 
of existing districts). They would thus fit comfortably within the 
deviations currently countenanced by Louisiana's practice.6

Second, plaintiffs and the United States presented evidence 
that a majority-black, single-member district with a smaller 
population deviation could be obtained by adding contiguous, 
predominantly black areas of Jefferson Parish to Orleans Parish. 
See United States' Exhibit 14. According to the 1980 Census, this 
district would have a population deviation from the ideal district 
of 4.4%.

6 Both districts also would comport with the State's practice 
of not dividing parishes between or among Supreme Court districts 
and of using single-member election districts.

6



2 . Political Cohesion of Blacks in Orleans Parish
The parties here stipulated to the reliability of the two 

techniques, approved by the Gingles Court, for determining voting 
behavior and minority political cohesion: extreme case analysis and 
bivariate ecological regression analysis. 478 U.S. at 52-53; see 
also id. at 53 n. 20 & 55 (citing with approval the methodological 
work of plaintiffs' expert in this case, Dr. Richard L. Engstrom). 
Stip. 78.

In this case, experts for both sides, as well as all lay 
witnesses who testified, agreed that in both judicial and 
nonjudicial elections, black voters within Orleans Parish were 
politically cohesive.7 With regard to nonjudicial elections, the 
district court specifically found that blacks within Orleans Parish 
had won a number of parishwide offices "due to large support by the 
black community." RE 34. Black candidates testified that they 
received the majority of their electoral support from black 
voters.8

7 The evidence of black political cohesion was particularly 
strong in elections in which both black and white candidates 
competed. See, e.g.. RE 55 (based on Stip. 78) (showing that on 
average, black candidates were supported by 80% of black voters).

8 See e.g.. Testimony of Melvin Zeno, Tr. at 75; Testimony of 
Anderson Council, Tr. at 88; Testimony of Edwin Lombard, Tr. at 
103. Black candidates also testified that the bulk of their 
campaign contributions came from black organizations and black 
citizens. See e.g.. Testimony of Revius Ortique, Tr. at 35; 
Testimony of Melvin Zeno, Tr. at 80; Testimony of Anderson Council, 
Tr. at 97.

7



3. Bloc Voting by White Voters in Elections within the 
First District

In almost every case in which a black candidate opposed a white 
candidate, the black candidate was the candidate of choice of black 
voters. See RE 55.

Table 3 of the Appendix to the district court's opinion 
reports the voting behavior of white and black voters within the 
First District in the 34 recent judicial elections in which both 
black and white candidates competed. The figures reveal a stark 
fact: although black voters supported the black candidate in 29 
of the 34 elections, white voters never cast even a simple 
plurality of their votes for any black candidate. They 
overwhelmingly preferred the white candidate in every election.

The differential support of black candidates is staggering. 
Within Orleans Parish, black support for black candidates in 
contested elections since 1978 has averaged 80.%. White support for 
those same candidates has averaged only 17%. U.S. Ex. 49 at 11. 
The difference in Jefferson Parish is even greater. There, the 
average support for the black candidates among black voters was 
90%, while among white voters it was only 10%. Id. The same 
racial polarization is revealed by an analysis of "exogenous" 
elections —  elections other than the elections challenged here. 
In the 1987 Secretary of State election in which three blacks were 
among ten candidates on the ballot, black voters in the First 
District cast a majority of their votes for black candidate Edwin 
Lombard. Tr. at 12 0, PX 1. White voters, however, cast a majority 
of their votes for white candidates. See Stip. 81. Similarly, in 
the 1988 Democratic Presidential Primary, the Rev. Jesse L. Jackson

8



received approximately 96.9% of the votes cast by black voters in 
the First District, but only 3.5% of votes cast by whites in the 
First District. See PX 1.

Uncontested lay testimony supports the conclusion that white 
voters within the First District, particularly whites in the three 
suburban parishes, simply will not vote for black judicial 
candidates. Community leaders with extensive political experience, 
such as Revius Ortique, Melvin Zeno and Bernette Johnson, testified 
that they received little support from white voters. See, e.g.. 
Tr. at 75, 88. Bernette Johnson campaigned vigorously and received 
endorsements from both white and black political leaders in Orleans 
Parish, as well as from the Times-Picavune. Although she received 
85% of black votes cast, she received only 30% of the votes cast 
by whites in her campaign for Civil District Judge in 1984. Tr. 
at 47-50.

In light of this uncontradicted evidence, the district court 
found that only within Orleans Parish itself are black voters, a 
numerical majority, able to overcome white bloc voting to elect 
candidates of their choice. RE 34. Thus, "black persons . . . 
serve as judges only in Orleans Parish." RE 33, Table 1. In the 
three majority white suburban parishes, however, "no black 
candidate has been elected in a contested election to parish-wide 
office . . . "  since 1978.9 RE 37. And "[i]n this century, no 
black person has served as a judge in St. Bernard or Plaquemines 
Parish." RE 37.

9 There is no evidence in the record that black candidates 
were elected to office prior to 1978.

9



c. The "Senate Report" Factors
The three circumstances highlighted by Ginales represent a 

distillation of a longer list of nine "[t]ypical factors" relevant 
to claims of vote dilution identified in the Senate Report that 
accompanied the 1982 amendment of section 2. S. Rep. No. 97-417 
97th Cong. 2d Sess. 28-9 (1982) [hereafter "Senate Report".],10 the 
"authoritative source for legislative intent" in interpreting 
amended section 2, Ginales. 478 U.S. at 43 n. 7. While the Senate 
Report makes clear that the factors are not to be treated as a 
mechanical point-counting device, see Senate Report at 29, the 
evidence in this case establishes the presence of each one of the 
relevant factors.11

1. A History of Official Discrimination
As the district court acknowledged, "Louisiana has . . .  a 

past history -of official discrimination bearing upon the right to 
vote." RE 24. The parties stipulated to the existence of, among 
other practices, Louisiana's imposition of a "grandfather" clause, 
as well as educational and property qualifications for voter 
registration (Stip. 37); an all-white primary, that was used until 
the Supreme Court outlawed white primaries in 1944 (Stip. 39); the 
use of "citizenship" tests, anti-single-shot voting laws, and the

0 See Appendix to this brief for a list of these factors.
In light of the holding that judges do not "represent" 

the voters who elected them in any constituent services-related 
manner, see. Wells v. Edwards. 347 F. Supp. 453 (E.D. La. 1972),
aff1d per curiam. 409 U.S. 1095 (1973), the eighth Senate factor- 
-responsiveness— is not particularly relevant in a judicial 
election case. But see, Baldwin v. Alabama, 472 U.S. 372, 397
(1985) (Stevens, J., dissenting) ("[R]esponsiveness and 
accountability provide the justification for an elected judiciary") 
citing P. DuBois, From Ballot to Bench: Judicial Elections and the 
Quest for Accountability 3, 29, 145 (1980).

10



adoption of a majority vote requirement by the State Democratic 
Party following the invalidation of the all-white primaries. Stip. 
42; see also Stips. 36-39. Indeed, Louisiana's history of official 
discrimination repeatedly has been a subject of judicial notice. 
See, e .g. . Major v. Treen. 574 F. Supp. 325, 339-341 (E.D. La.
1983) (three-judge court).

Since 1965, Louisiana has been subject to the special 
preclearance provisions of the Voting Rights Act of 1965. 30 Fed.
Reg. 9897 (1965). Pursuant to those provisions, twelve parishes, 
including one within the First District, have been designated for 
the appointment of federal examiners. Stip. 45.

Unrebutted evidence and stipulations by the parties prove that 
voting discrimination in Louisiana, and within the First District, 
continues to this day. See. e.g. . Major v. Treen, 574 F.Supp. 325, 
339-341 (E.D. La. 1983) (entire metropolitan area); East Jefferson 
Coalition for Leadership and Development v. Jefferson Parish, 691 
F. Supp. 991 (E.D. La. 1988) (Jefferson Parish); and Citizens for 
a Better Gretna v. City of Gretna. 834 F.2d 496, 499 (5th Cir.
1987) cert, denied 106 L.Ed.2d 564 (1989) (Jefferson Parish).
Noted Louisiana historian Dr. Raphael Cassimere testified that 
black voters in East Baton Rouge and Orleans Parishes were targeted 
for a, voter purge in 1986, during an extremely close state 
senatorial race. Tr. at 132; see also Long v. Gremillon, Civ. Suit 
142, 389, 9th Jud. Dist. Rapides Par. (Oct. 14, 1986).

2. Racial Polarization in Voting
As Gingles points out, the second and third prongs of the 

Gingles test are the two sides of racially polarized voting. See

11



478 U.S. at 56. The evidence regarding this Senate factor has thus 
already been discussed. See supra at 7-9.

3 . The Use of "Enhancing" Devices
The Senate Report specifically identifies three practices that 

"may enhance the opportunity for discrimination against the 
minority group": unusually large election districts, majority vote 
requirements, and anti-single shot provisions. S. Rep. at 29: All
of these practices are present in the First District.

a. The First District is the sole multi-member district 
among all Supreme Court districts. It has twice the population of 
any congressional district in Louisiana and, in terms of 
population, is the largest of any of the state's election 
districts. Stip. 82. Black candidates are disadvantaged as a 
result of the unusually large size of the district, and the large 
number of voters who must be reached and persuaded. See RE 31.

b. Elections for the two Supreme Court positions from the 
First District are not conducted in the same year. Because the 
terms are staggered, voters are prevented from single-shot voting. 
RE 14; Stip. 22.

c. A majority vote requirement applies in elections for 
the Supreme Court. RE 13. If no candidate receives a majority of 
the vote in the primary, the top two vote-getters compete in a 
general election. RE 14.

4. Candidate Slating Process
There is no formal slating process for judicial candidates 

within the First District. Nonetheless, in judicial elections, bar 
group endorsements provide a critical form of candidate support 
akin to slating in traditional legislative contests. The district

12



court found that "all of the current officers of the Louisiana Bar 
Association are white, and no black judge has ever served as one 
of the officers of the Louisiana District Judges Association." RE 
30. Moreover, the New Orleans Bar Association has never endorsed 
a black candidate for judicial office. RE 30-31. Thus blacks do 
not have equal access to the informal slating/endorsement process.

5. Depressed Socioeconomic Status
The Senate Report expressly recognized that "disproportionate 

education, employment, income level and living conditions arising 
from past discrimination tend to depress minority political 
participation." S. Rep. at 29, n. 114. The 1980 Census reported 
vast disparities in socioeconomic indicators for blacks and whites 
in Louisiana.12

Particularly in the area of education, blacks continue to 
suffer the vestiges of discrimination in Louisiana, affecting their 
ability to participate in the political process. RE 20. "As 
recently as August 1988, a panel of three judges found Louisiana 
higher public education operated as a dual system." RE 30, citing 
United States v. State of Louisiana. 692 F.Supp. 642 (E.D. La. 
1988) .

No law school in Louisiana accepted black students in this 
century until the opening of Southern University Law School in 
1947. RE 30; Stip. 93. "At the present time, Louisiana operates

12 For instance, according to the 1980 Census, the percentage 
of black residents aged 25 or over who completed four years of high 
school is substantially lower in each parish within the First 
District than the corresponding percentage for whites. Stip. 101. 
The 1980 Census reported that the median income for white families 
was twice the median income for black families in Orleans Parish. 
Stips. 106, 107.

13



two public law schools: Southern University attended by virtually 
all of the State's public black law student population and the 
academically superior LSU Law School, attended by most of the white 
public law student population," RE 30, (taking judicial notice of 
findings in United States v. State of Louisiana. Civil Action 80- 
3300). The district court specifically found that "[t]he 
relatively lower economic status of local black residents further 
affects accessibility to better education and such practicalities 
as campaign funding." RE 31.

6. The Role of Race in Political Campaigns
Although this case does not involve claims of overt racial 

appeals in judicial elections, see RE 37, unrebutted testimony 
showed clearly that race continues to play a prominent role in­
judicial campaigns in the First District, particularly in 
Jefferson, Plaguemines and St. Bernard Parishes.

For example in 1988, Melvin Zeno, a highly qualified black 
candidate for criminal court judge was advised by many white 
advisors not to use his picture on campaign literature or to make 
personal appearances in Jefferson Parish during his campaign in 
order to avoid highlighting his race for fear that white voters 
would vote against him. Tr. at 64-66, 69-70, 74. Zeno's white 
opponent understood the salience of race: during radio interviews 
he repeatedly attempted to signal to listeners that Mr. Zeno was 
black. Tr. at 78.13 Similarly, Anderson Council, another black 
judicial candidate, also was advised against using his picture or

13 The State of Louisiana was prohibited from "encoura[ging] 
its citizens to vote for a candidate solely on account of race," 
by indicating the race of candidates on election ballots. Anderson 
v. Martin. 375 U.S. 399, 433 (1964).

14



appearing before the white community in Jefferson Parish. Tr. at 
87-88.

Finally Judge Revius Ortigue testified that he would feel 
"intimidated" campaigning in either Plaquemines or St. Bernard 
Parishes. Tr. at 25. In fact, on a recent trip to hold a judicial 
session in Plaquemines, Judge Ortique felt compelled to contact the 
sheriff of Plaquemines to ensure his safety while traveling there. 
Tr. at 2 5.14

7. Minority Electoral Success
No black candidate has been elected to the Louisiana Supreme 

Court in this century. RE 33; Stip. 46. The only black to serve 
on the Louisiana Supreme Court was appointed and served for a 
period of 17 days in November 1979. RE 33; Stip. 47. In 1972 a 
black candidate unsuccessfully ran for Supreme Court from the First 
District.

The district court itself found that in the four-parish area 
that makes up the First District, blacks serve as judges in Orleans 
Parish only. See RE 53. No black person has won a contested 
parish-wide race in either St. Bernard, Plaquemines or Jefferson 
Parishes since 1978. RE 35.

The district court found that blacks did have an opportunity 
to elect their preferred candidates in Orleans Parish-only 
elections, see RE 44-46. But even in Orleans Parish, blacks are 
still "a clear minority of elected officials" RE 44. Since the

14 Plaquemines Parish has a well documented history of 
harassing civil rights lawyers and activists. See, e.g. . Sobol v. 
Perez. 289 F. Supp. 392 (1968). Like Judge Ortique, several black 
lawyers in the Sobol case "testified as to their unwillingness or 
reluctance to go to Plaquemines Parish in a civil rights case." 
289 F. Supp. at 401.

15



combined white electorate in Jefferson, St. Bernard and Plaquemines 
outnumbers the black electorate of Orleans Parish, there is no 
realistic potential for black electoral success in the four-parish 
district.

8. Tenuousness
Defendants presented no evidence of any policy —  racially 

neutral or otherwise —  that justified including Orleans Parish 
within the only multimember Supreme Court district. The only 
rationale offered by the State for maintaining the currently 
constituted Supreme Court districts was "continuity, stability and 
custom." Tr. at 184.15

D. The District Court's Findings of "Ultimate" Fact
The district court made'a number of findings of ultimate fact 

based on the uncontested subsidiary facts detailed above. With 
regard to the Gingles test it found that plaintiffs had failed to 
satisfy the first prong because an Orleans Parish-only Supreme 
Court district was unacceptable, both for reasons related to 
excessive population deviation and for reasons connected with the 
undesirability of creating single-parish Supreme Court districts. 
We explain below why the district court's conclusions reflect both 
clearly erroneous findings of fact and serious distortions of the 
applicable law. See infra Arg. I. C.

15 The district court noted that in 1879, when the present 
configuration of the First District was established, "the parishes 
of Orleans> St. Bernard, Plaquemines and Jefferson were considered 
an inseparable metropolitan or quasi-metropolitan area." RE 27. 
The court below did not address the question whether such a 
rationale supports the maintenance of the current multimember First 
District.

16



The district court then found that plaintiffs had failed to 
satisfy the second and third prongs of Gingles -- a showing of the 
existence of racially polarized voting —  because it found that 
black voters could elect black candidates in Orleans Parish only 
elections and could elect white candidates in elections involving 
the four-parish area. We explain below how the district court's 
findings involved legal errors in equating ability to elect within 
Orleans Parish with ability to elect in a multi-parish district, 
and in relying on white-on-white elections to overcome the clear 
evidence that blacks are unable to elect black candidates in the 
current First District. See infra Arg. II. B. 2, 5.

As for the remaining Senate Factors, although the district 
court recognized their presence in this case, it found with regard 
to some of the factors that blacks were overcoming the legacy of 
discrimination and political exclusion in Louisiana and simply 
denied the legal relevance of other Senate Factors. We explain 
below why all the Senate Factors are legally relevant to 
plaintiffs' claims and how they buttress the conclusion that 
plaintiffs are currently being denied an equal opportunity to 
participate and elect the candidates of their choice in contests 
involving the selection of Louisiana Supreme Court Justices. See 
infra Arg. III.

SUMMARY OF ARGUMENT
The district court incorrectly held that the method of 

electing judges in Louisiana's First District did not violate 
section 2. This wrong conclusion is based on the district court's 
refusal to make logical inferences from a largely stipulated 
factual record, and is irredeemably tainted by the court's

17



misconception of the legal standard to be applied in section 2 
cases.

In such cases, plaintiffs are required to make a three-part 
threshold showing. Thornburg v. Gingles. 478 U.S. 30, 50-51 
(1986). Brewer v. Ham. 876 F.2d 448, 452 (5th Cir. 1989); Campos 
v. City of Baytown, 840 F.2d 1240, 1244 (5th Cir. 1988), cert, 
denied. 109 S.Ct. 3213 (1989). The district court erred in holding 
that plaintiffs failed to satisfy this three-pronged test. The 
district court erred in holding that the black population in the 
First District was not sufficiently large and geographically 
compact to constitute a majority in a single-member district. The 
overwhelming majority of black registered voters in the challenged 
at-large district reside in a geographically definable subdistrict, 
Orleans Parish, which has a sizeable total population. Thus 
minority voters in a district made up of Orleans Parish only would 
possess the potential to elect candidates of their choice.

The district court erred in holding that there was no 
significant racially polarized voting in the challenged district. 
Racial bloc voting constitutes the linchpin of a section 2 vote 
dilution case, and evidence of polarized voting satisfies both the 
second and third prongs of Gingles1 test. 478 U.S. at 56. Campos 
v. City of Baytown. 840 F.2d 1240 (5th Cir. 1988), cert, denied, 
109 S.Ct. 3213 (1989); Westwego Citizens for Better Government v. 
City of Westwego. 872 F.2d 1201 (5th Cir. 1989), and 834 F.2d 496. 
Here, the district court erred in relying on electoral results in 
white-on-white contests to find that there was no racially 
polarized voting. Cf. Gretna, 834 F.2d at 503, 504; see Campos. 
840 F.2d at 1245; 478 U.S. at 83, 101. The evidence shows that

18



those black candidates who were not deterred from running were not 
successful in district-wide contests. Analysis of elections 
involving black and white candidates epitomized bloc voting: whites 
voted for white candidates and blacks for black candidates.

The district court's analysis of black political cohesiveness 
(which it referred to as "black crossover voting") was 
fundamentally flawed. The court's treatment of white crossover 
voting in black-on-white contests wholly misunderstood the relevant 
legal standard. Finally, its reliance on evidence of black 
electoral success within Orleans Parish in Orleans Parish-only 
elections critically misused that evidence. Such evidence cannot 
be used, as the district court did, to rebut a showing of numerical 
submergence and legally significant white bloc voting in the 
existing multimember district.

The Voting Rights Act requires a court to look at the totality 
of circumstances. Once a plaintiff meets the Ginqles test, 
impermissable vote dilution is shown. Evidence of the Senate 
Factors buttresses that showing and must be considered in its 
totality. While, the district court below made relevant findings 
with regard to each Senate Factor, i.e., finding that the First 
District is "unusually large" and that single shot voting is 
precluded, it stopped short of drawing the obvious and appropriate 
conclusions from these findings. The court below also failed to 
give proper weight to the Senate Factors, and to view them 
interactively as part of a "functional view of the political 
process" in the First District, as directed by this Circuit and the 
Supreme Court in Ginqles. 478 U.S. at 45.

19



ARGUMENT
I. The District Court Misinterpreted The First

Gingles Factor
One of the threshold requirements established by the Supreme 

Court's decision in Gingles. 478 U.S. 30 is that the minority group 
in a section 2 challenge to multimember districting "demonstrate 
that it is sufficiently large and geographically compact to 
constitute a majority in a single-member district." Id. at 50. 
In this case, the district court held that plaintiffs had failed 
to meet this requirement because the only way to establish a 
majority black single member district would be to create a 
"gerrymandering [sic] district lacking geographical compactness." 
RE 19-20. The district court was wrong. Its conclusion reflects 
a fundamental misunderstanding both of the applicable law and of 
the evidence in this case.

A. The Applicable Legal Standard
The Gingles Court squarely rejected a formalistic approach to 

section 2 cases in favor of a "'functional' view of the political 
process." 478 U.S. at 45 (quoting S. Rep. at 30 n. 120 (1982)). 
The first prong of the Gingles test reflects this functional 
approach, for it asks essentially whether "minority voters possess 
the potential to elect representatives in the absence of the 
challenged structure or practice," that is, whether "a putative 
districting plan would result in districts in which members of a 
racial minority would constitute a majority of the voters . . . ." 
478 U.S. at 50 n.17 (internal quotation marks omitted). In light 
of this guidance/ two things are clear. First, the question 
whether a particular districting scheme identified by the

20



plaintiffs satisfies the first prong of Gingles is not the 
functional equivalent of deciding that scheme should be imposed on 
the defendant jurisdiction. Should the court find a section 2 
violation, it must accord the defendant an opportunity to propose 
its own scheme and must defer to that scheme if it provides a 
complete remedy. See Wise v. Lipscomb, 437 U.S. 535 (1978). 
Second, the "compactness" aspect of the requirement must be 
assessed in real-world terms: it does not refer to some abstract 
notion of district "attractiveness," Gaffney v. Cummings. 412 U.S. 
735, 752 (1973), but rather to whether the proposed districts 
exhibit a sufficient sense of community to enable effective 
political participation by their inhabitants, Dillard v. Baldwin 
County Board of Education. 686 F. Supp. 1459, 1466 (M.D. Ala. 
1988) .

This Court's interpretations of the first prong of Ginales 
have recognized this pragmatic approach. For example, in 
interpreting the numerosity component of the Gingles requirement, 
the Court has asked whether the minority group has the potential 
to form a majority of the electorate in a proposed district, since 
a minority that possesses that characteristic also has the 
potential to elect the candidates of its choice. See Brewer v. 
Ham. 876 F.2d 448, 452 (5th Cir. 1989). Similarly, this Court has 
rejected the requirement that all minority voters in the 
jurisdiction live within a proposed district, as long as minority 
voters have a sufficient concentration within the district to elect 
their preferred candidates. See Campos. 840 F.2d at 1244. 
Finally, this Court has exhibited a strong preference for asking 
whether the creation of a majority-black district is possible

21



within the parameters of the existing electoral structure, without 
distorting aspects of the electoral system other than the ones 
being challenged directly. See, e.g.. Brewer, supra.

In short, the legal issue raised by the first prong of Gingles 
is not whether any particular districting scheme should supplant 
the scheme being challenged. Rather, the question is whether it 
would be possible to create alternative schemes that would afford 
minority voters the ability to elect their preferred candidates.

B. The Evidence in this Case
The crux of the district court's erroneous conclusion rests 

on its rejection of a simple, elegant alternative to the present 
First District: a division of the district into two single-Justice 
districts, one composed of Orleans Parish, and the other composed 
of Jefferson, St. Bernard, and Plaquemines Parishes. The following 
salient, undisputed facts about an Orleans Parish-only district 
show how it meets the first prong of Gingles:

1. Such a district would be majority black in registered 
voters. RE 16 (53.6% of registered voters in Orleans Parish are 
black.) Thus, black voters clearly would possess the ability to 
elect the candidates of their choice. See also RE 44 (concluding 
that black voters do have the ability to elect their preferred 
representatives in Orleans Parish-wide elections).

2. The use of an Orleans Parish-based district would by 
definition involve a "sufficiently . . . geographically compact" 
district. 478 U.S. at 50. Orleans Parish already constitutes a 
discrete electoral unit for a host of elections: a mayoralty, 
numerous lower court judgeships, a sheriff, and the like. See RE 
53 & 61 (Tables 1 & 7 including some parish-wide offices) .

22



Moreover, by creating and recognizing parishes, the State has 
already decided that parishes form distinct communities. Thus, the 
district court was clearly erroneous in asserting that an Orleans 
Parish-only district was a "gerrymandering [sic] district lacking 
geographical compactness." RE 20. If anything, the creation of 
two single-justice districts that avoid splitting parish lines 
precludes any artificiality in districting.16

3. The illustrative division of the present First District 
would comport with Louisiana's existing policy regarding population 
deviations among Supreme Court districts. The plain fact is that 
the current Supreme Court apportionment scheme in Louisiana bears 
no relation to the "ideal district" scheme to which the district 
court unfavorably compares plaintiffs' proposal.17 At present, 
four of the six districts deviate from the ideal size by more than 
10%, see RE 17 (districts 1, 3, 4, and 5). The current total 
deviation is 74.95% (between districts 4 and 5), while the average 
deviation is 19.55%. The deviations of plaintiffs' proposed 
districts are -7.2% (for the Orleans Parish district) and -9.3% 
(for the Jefferson, Plaquemines, and St. Bernard district). These 
figures fall well within the deviations Louisiana implicitly finds

This is not to say, of course, that an appropriate 
remedial plan might not split parish lines. See RE 19, n. 26.

17 Ideal districts, as identified by the district court, are 
obtained by dividing the total population of the state by the 
number of districts, see RE 69. This methodology derives from the 
one person one vote concept that applies in legislative election 
schemes only. Since the one person one vote principle does not 
apply to the Louisiana Supreme Court, see Wells v. Edwards. 347 F. 
Supp. 453 (E.D. La. 1972); there is no basis for comparing
plaintiffs proposal to an equal population ideal. Nevertheless, 
plaintiffs' alternative is well within legally tolerable limits. 
Brown v. Thompson, 462 U.S. 835 (1983).

23



tolerable: they are smaller than all but two of the existing
deviations.

Moreover, the district court's assertion that the 
"isolat[ion]" of Orleans Parish in a single district "would leav[e] 
a second district with an atypically low voter population," RE 19, 
is clearly erroneous. Each of the alternative districts would have 
more registered voters than the current Fourth District has, see 
RE 16 (Orleans District would have over 237,000 voters; other new 
district would have over 255,000 voters; Fourth District presently 
has only 208,000). Moreover, each of the new districts would have 
larger total populations than either the Fourth or the Second 
District, see RE 15-16.

C. The District Court Erred in Rejecting a Single-Parish
District at the Liability Phase of Trial

The district court's real objection seems to lie not in any 
true application of Ginqles to the facts of this case but rather 
in its belief that because "to date, no parish is isolated as a 
single district in this state," RE 19, plaintiffs cannot use a 
single-parish district to meet the threshold liability requirement. 
That belief is quite simply misguided.

First, the district court mistakes the relevant inquiry: at 
the liability stage, the question is not whether Louisiana must 
adopt a single-parish district. There may in fact be many ways of 
avoiding single-parish districts that would afford black voters an 
equal opportunity to elect Supreme Court justices. Rather, the 
question is only whether the use of the present multiparish, 
multimember district is causally related to the current inability

24



of blacks to elect the candidate of their choice. For the reasons 
we explain below, see infra Arg. II. A. 5., it is.

Second, the district court has not identified any important 
state policy that precludes single-parish districts. Indeed, the 
Louisiana Constitution apparently would authorize such a division. 
See RE 14-15.

Third, the district court's conclusion ignores the "'past and 
present reality'" that Ginales expressly directed it to consider. 
478 U.S. at 79 (quoting S. Rep. No. 97-417 at 30 (1982)). At the 
time the present scheme was inaugurated in 1879, Orleans Parish 
numerically, economically, and politically dominated the First 
District. See Major v. Treen. 574 F. Supp. 325, 329 (E.D. La. 
1983) (three-judge court) (prior to 1980, New Orleans' population 
sufficiently outnumbered the suburban population for Orleans Parish 
to dominate both metropolitan congressional districts). Thus, to 
have an Orleans Parish-dominated district would hardly represent 
a repudiation of Louisiana tradition.

Finally, all justices, regardless of the district from which 
they were elected, sit on all cases, see RE 14. More importantly, 
justices are not permitted, let alone expected, to advance the 
interests of litigants from particular geographical regions of the 
State. In light.of these factors, the configurations of territory 
from which they are elected cannot play the major role assigned 
them by the district court in this case.

25



II. The District Court Made Critical Errors of Fact and Law In Its
Analysis Of Racially Polarized Voting
Racial bloc voting constitutes the linchpin of a section 2

to

vote dilution case. The district court's refusal to find such 
polarization in this case rests on a fundamental misunderstanding 
of the relevant legal principles. In this section of the brief, 
we first discuss the legal standards to be applied in assessing 
racial bloc voting and then show how the district court's 
misunderstanding of those standards jaundiced its view of the 
undisputed evidence in this case, deflected its attention from 
legally relevant facts to legally irrelevant ones, and tainted its 
application of the law to the facts which it properly found.

A. The Applicable Legal Standard
The second and third prongs of Gingles require that plaintiffs 

show that "the minority group ... is politically cohesive" and 
"that the white majority votes sufficiently as a bloc to enable it 
... usually to defeat the minority's preferred candidate." 478 U.S. 
at 51. These two factors together establish racially polarized 
voting. See id. at 56. Gingles and this Court's post-Gingles 
decisions18 have set out a well-defined method of assessing the 
issue of racial bloc voting, which is "usually proven by 
statistical evidence" regarding election returns. Campos. 840 F.2d 
at 1243. A close reading of those cases shows five legal
principles that must guide district courts' assessments of the 
electoral evidence before them.

18 Campos v. City of Baytown. 840 F.2d 1240; Westwego Citizens 
for Better Government v. City of Westwego, 872 F.2d 1201 (5th Cir. 
1989) , and Citizens for a Better Gretna v. City of Gretna. 
Louisiana. 834 F.2d 496 (5th Cir. 1987), cert denied, 109 S.Ct.
3213 (1989) .

26



1. The Particular Salience of Elections Involving Both 
Black and White Candidates

In Ginqles. both the district court and the Supreme Court 
relied on evidence concerning voter behavior in so-called black- 
on-white contests only. See 478 U.S. at 52. Examination of such 
elections, in which "blacks strongly supported black candidates 
while . . . whites rarely did, satisfactorily addresses each facet 
of the proper legal standard." Id. at 61. In light of Ginqles, 
this Court has consistently affirmed findings of racial bloc voting 
based solely on the analysis of black-on-white elections. See, 
e.q.. Campos. 840 F.2d at 1245 ("district court was warranted in 
its focus on those races that had a minority member as a 
candidate"); Gretna, 834 F.2d at 504 ("black preference is 
determined from elections which offer the choice of a black 
candidate").

A particular focus on races involving black candidates is 
faithful to the language of section 2 and the directives provided 
by the House and Senate Reports that give "authoritative" guidance 
in interpreting section 2. Ginqles. 478 U.S. at 43 n. 7. Section 
2 itself makes "[t]he extent to which members of a protected class 
have been elected to office . . . one circumstance which may be 
considered ...." 42 U.S.C. § 1973b. Indeed, minority electoral 
success is the only circumstance explicitly identified in the 
statute itself. The Senate Report also identifies minority 
electoral success "in the jurisdiction" involved in a section 2 
suit as a probative factor. S. Rep. No. 97-417 at 29 (1982). 
Finally, the House Report defines "representatives of choice" as

27



"minority candidates or candidates identified with the interests 
of a racial or language minority." H. Rep. No. 96-227, 97th Cong., 
1st Sess. at 30 (1981).

Elections involving black candidates are of particular 
salience because an election scheme that complies with section 2 
must provide black voters with an equal opportunity to elect the 
candidates that they have "sponsored," Gingles, 478 U.S. at 57 n. 
25, and not simply to choose among candidates sponsored by the 
white community. Blacks must be provided with an equal opportunity 
to vote for candidates who reflect their "sentiment ... as to the 
individuals they choose to entrust with the responsibility of 
administering the law." Chisom v. Edwards. 839 F.2d at 1063; cf. 
Gingles. 478 U.S. at 51 (the political cohesiveness prang of the 
Court's test takes into account the existence of "distinctive 
minority group interests" that lead minorities to vote for the same 
candidates). As this Court recognized, blacks are afforded the 
ability to give effective voice to that sentiment "only within the 
context of an election that offers voters the choice of supporting 
a viable minority candidate." Gretna, 834 F.2d at 503; see Campos, 
840 F . 2d at 1245 (although of necessity, some Anglo candidates 
received a majority of the minority vote in each election involving 
only Anglo candidates "[tjhere was no evidence that any Anglo- 
Anglo race ... offered the voters the choice of a 'viable minority 
candidate ' " ) .19

9 See, e.g.. B. Grofman, Representation and Redistricting 
Issues 58 (1982) (black elected officials, and thus black 
candidates, are the "focus of black expectations" for a voice in 
the selection of government officials); C. Lani Guinier, "Keeping 
the Faith: Black Voters in the Post-Reagan Era," 24 Harv. C.R.-

28



2. The Legal Inconseguentialitv of Voting Patterns in 
Elections Involving Only White Candidates

A° logical corollary to the particular salience of black and 
white voting behavior in elections involving both black and white 
candidates is the relative irrelevance of voting behavior in 
contests in which only white candidates are competing. Indeed, in 
Gingles, five Justices found the presence of a black candidate so 
important in determining bloc voting that they suggested that only 
elections involving black and white candidates can be probative. 
See id. at 83, 101. As this Court succinctly noted in Gretna,
"[t]he various Gingles concurring and dissenting opinions do not 
consider evidence of elections in which only whites were 
candidates. Hence, neither do we." - 834 F.2d at 504 ; see also 
Campos, 840 F.2d at 1245 (same).

3. The Level of Black Support for Black Candidates 
Necessary to Prove Political Cohesiveness

Gingles clearly stated that a "showing that a significant 
number of minority group members usually vote for the same 
candidates is one way of proving the political cohesiveness 
necessary to a vote dilution claim, and consequently, establishes 
minority bloc voting within the context of § 2." 478 U.S. at 56
(internal citation omitted). Gingles does not require minority 
unanimity to show cohesiveness. See id. at 80-82; Campos, 840 F.2d 
at 1249 (finding minority cohesion on the basis of three elections 
in which the minority candidates received 83%, 78%, and 63% of the 
minority vote); Gretna. 834 F.2d at 500 n. 9 (political

L.L. Rev. 393, 421 (1989).
29



cohesiveness in Ginqles was shown by black support for black 
candidates ranging from 71 to 96% of votes cast).

In light of Ginqles this Court has found black cohesiveness 
on the basis of evidence showing that a black plurality has 
supported a black candidate, as well as on the basis of virtually 
unanimous black support for particular candidates. See Gretna. 834 
F.2d at 503 n. 17 (statistics showing black candidate received 49% 
of black vote "indicate [candidate] as a black aldermanic 
preference"); see also, e. q. . Campos. 840 F.2d at 1246 n. 9 
(receipt by minority candidate of 62% of minority vote indicates 
political cohesiveness).

4. The Meaning of Legally Significant White Bloc Voting
Just as some black support for white candidates in black-on- 

white contests does not disprove the existence of black political 
cohesiveness, so too, the fact that some white voters cast their 
ballots for the black candidate does not disprove the existence of 
white bloc voting. Ginqles squarely held that "a white bloc vote 
that normally will defeat the combined strength of minority support 
plus white 'crossover' votes rises to the level of legally 
sufficient white bloc voting." 478 U.S. at 56. Thus, whether 
there is legally significant white bloc voting is necessarily a 
fact-intensive inquiry.20 Thus, "Ginqles does not require total

? Q ,The Court went on to explain:
The amount of white bloc voting that can 
generally 'minimize or cancel' black voters' 
ability to elect representatives of their choice 

will vary from district to district 
according to a number of factors, including the 
nature of the allegedly dilutive electoral 
mechanism; the presence or absence of other 
potentially dilutive electoral devices, such as

30



white bloc voting. Instead, it requires only that ' [the] white 
majority votes sufficiently as a bloc to enable it . . . usually 
to defeat the minority's preferred candidate." Campos. 840 F.2d 
at 1249.

In Campos. there was legally significant white bloc voting in 
one election in which the Hispanic candidate received 37% of the 
white vote because, even with that crossover and "over-whelming 
minority support (83%)," id. . he still was defeated. Such a 
conclusion was entirely consonant with Gingles teaching, since in 
that case, although white support for black candidates averaged 
over 18% and ranged as high as 50% in primary elections and 49% in 
general elections, see 478 U.S. at 59, the court nevertheless found 
legally significant white bloc voting. In sum, as long as not 
enough whites support black candidates to enable those candidates 
actually to win, there is legally significant white bloc voting.

5. The Relevance of Voting Behavior Within Maioritv-Black 
Subsections of Maioritv-White Districts

Black electoral success in a majority black subsection of a 
challenged district provides a concrete illustration of the causal 
relationship between the challenged electoral practice —  the use 
of a larger, multimember district —  and the dilution of black

majority vote requirements, designated posts, 
and prohibitions against bullet voting; the 
percentage of registered voters in the district 
who are members of the minority group; the size 
of the district; and, in multimember districts, 
the number of seats open and the number of 
candidates in the field.

478 U.S. at 56 (internal citations omitted).
31



voting strength.21 Indeed, it is the existence of this submerged 
majority black district that is the essence of dilution where 
voting is racially polarized. See, e.g.. Gingles. 478 U.S. at 90- 
91 (O'Connor, J., concurring in the judgment) (when plaintiff class 
identifies a potential majority-black district, "the 
representatives that it could elect in the hypothetical single 
member district ... in which it constitutes a majority will serve 
as the measure of its undiluted voting strength"); Rogers v. Lodge. 
458 U.S. 613, 616 (1982) (an indication of the dilutive tendency 
of multimember schemes is the fact that blacks "may be unable to 
elect any representatives in an at-large election, yet may be able 
to elect several representatives if the political unit is divided 
into single member districts"); see also Brewer v. Ham. 876 F.2d 
448, 455 (5th Cir. 1989). In short, black . voting behavior in 
majority black subsets of the district can show the potential 
ability to elect candidates if the larger district is disaggregated 
into smaller districts, one of which is majority black.

21 Voting behavior within a geographically distinct, majority- 
black portion of a multimember district can be legally relevant to 
a section 2 claim in two well-delineated circumstances. First, it 
can show black political cohesion through the use of extreme case, 
or homogenous precinct, analysis —  one of two standard methods of 
quantifying racial bloc voting approved in Gingles. See also, 
Gretna. 834 F.2d at 500 n. 8 (noting how results of extreme case 
analysis can support conclusions reached through regression 
analysis).

Second, black electoral success within majority black 
electoral districts or jurisdictions that are contained within the 
challenged multimember district can also provide potent evidence 
regarding the first prong of the Gingles test: the potential 
ability of blacks to elect the candidate of their choice from a 
"geographically compact" single-member majority black district 
carved out of the challenged multimember district being attacked 
in the section 2 case. 478 U.S. at 50.

32



What examination of black voting behavior and electoral 
success within a majority black subset of an overall white 
jurisdiction cannot do, however, is prove that blacks have the 
potential to elect their candidates from that larger, predominantly 
white district. For example, Ginqles involved a challenge to 
multimember state House districts and to a single-member multi­
county state Senate district.22 The Ginqles district court 
expressly noted that blacks had been elected to local offices in 
portions of some of the state legislative districts. See Ginqles 
v. Edmisten. 590 F. Supp. 345, 365-66 (E.D.N.C. 1984) (three-judge 
court), aff'd in relevant part. 478 U.S. 30 (1986). But it 
discounted the legal significance of that electoral success with 
regard to the question whether black voters could elect the 
candidates of their choice to state legislative seats because many 
of those local candidates had been elected from heavily black 
jurisdictions within the challenged state legislative districts. 
See, e.g. . 590 F. Supp. at 366 (sole black member of the school 
board was elected from a majority black subdistrict within a 21.8% 
black multimember house district); id. at 367 (that black 
candidates can get elected "when the candidacy is in a majority 
black constituency" or "is for local rather than statewide office" 
does not prove that blacks have an equal opportunity to elect the 
candidates of their choice in majority-white, multimember state 
legislative districts). See also, East Jefferson Coalition for

22 The Supreme Court summarily affirmed the district court's 
finding of a section 2 violation with regard to the senate 
district. 478 U.S. at 41.

33



Leadership and Development. 691 F. Supp. 991 (cannot extrapolate 
from black electoral victories in two local contests).

In sum, black voting behavior in majority-black areas within 
a larger majority-white jurisdiction cannot rebut a showing of 
numerical submergence and legally significant white bloc voting in 
a challenged multimember district.

B. The District Court's Errors in this Case
The district court's analysis in this case flouts all five of 

the well-established principles discussed above. First, the 
district court wrongly ignored the evidence showing that plaintiffs 
have no opportunity to elect a black candidate to the Louisiana 
Supreme Court from the First District. Second, the district court 
erroneously relied on electoral results in white-on-white contests 
to find unimpeded black political access and opportunity to elect. 
Third, the district court's analysis of black political 
cohesiveness (which it referred to as "black crossover voting") was 
fundamentally flawed. Fourth, its treatment of white crossover 
voting in black-on-white contests wholly misunderstood the relevant 
legal standard. Finally, its reliance on black electoral success 
in Orleans Parish-only elections critically misused that evidence.

1. The District Court Wrongly Ignored the Inability of
Black Voters to Elect Black Candidates to the Louisiana 
Supreme Court

The district court declined to accord special weight to voting 
behavior in contests in which both black and white candidates 
sought judicial office: to its way of thinking such elections were
"not determinative of a finding of racial cohesion or racially 
polarized voting." RE 45. It found that blacks "routinely elect 
their preferred candidates." Id. at 51. That finding was based

34



in part on blacks' ability to elect black candidates within Orleans 
Parish alone, an error in applying principle five below. See infra 
at 40-43. To the extent that it was based on a belief that blacks 
within the four-parish First District either have or could elect 
a black to the Louisiana Supreme Court, however, it is flatly 
wrong.

First, the district court failed to point to a single instance 
in which a black candidate has ever carried a majority of the vote 
in the First District. The.history of black candidates' defeat in 
judicial elections and other parish-wide contests is well 
established in this case. See supra at 15-16; RE 33, 35, and 37. 
Outside of Orleans Parish, no black person has ever won any parish­
wide office in a contested election. Id. White voters in the 
suburban parishes outnumber black voters in Orleans Parish, thereby 
giving white voters the absolute ability to veto any black- 
sponsored black candidate. And black candidates in so-called 
exogenous elections involving all four First District parishes have 
carried the black vote overwhelmingly, but have never received 
sufficient white votes to finish first overall. See RE 42-43. 
Thus, as a matter of historical fact, the district court was 
clearly erroneous: blacks have yet to be able to elect a black 
candidate to office in an election involving the First District.

Second, the undisputed evidence shows that the numerical 
submergence of Orleans Parish within the majority-white four- 
parish First District has denied blacks the ability even to sponsor 
candidates, let alone elect them. Undisputed testimony by sitting 
black judges Revius Ortique, Tr. at 36, and Bernette Johnson, Tr. 
at 52; see RE 33, revealed that they would not even run for seats

35



from the current First District because of the district's current
configuration would prevent them from winning. See also Tr. at 
105-06 (testimony of Edwin Lombard) (black candidates would not be 
able to raise money for a First District race because of the 
perception that they would be unable to win); id. at 83 (testimony 
of Melvin Zeno) (blacks are deterred from running for judicial 
office in Jefferson Parish because they cannot win). The district 
court dismissed this testimony "as speculative, and lacking 
probative value; if black candidates do not run and increase their 
notoriety, they surely cannot win." RE 34.

That dismissal reflects a fundamental misunderstanding of the 
relevant law. That black candidates refuse to run is critically 
probative of dilution. "[T]he lack of black candidates is a likely 
result of a racially discriminatory system." McMillian v. Escambia 
County. 748 F . 2d 1037, 1045 (11th Cir. 1984). As the Gretna 
district court noted, it is "axiomatic" that when minorities are 
faced with dilutive electoral structures, "their voter turnout and 
candidacy rates tend to drop." 636 F. Supp. 1113, 1119 (E.D. La. 
1986) (emphasis added and internal quotation marks omitted), aff'd 
834 F .2d 496 (5th Cir. 1987) cert, denied. 109 S.Ct. 3213 (1989). 
Indeed, Ginoles expressly recognized that dilutive structures might 
result in there being no black candidates whose contests might be 
assessed. 478 U.S. at 57 n. 25.

In sum, there was simply no evidence to support the district 
court's view that plaintiffs have any chance to elect a black 
candidate to the Louisiana Supreme Court from the present First 
District.

36



2. The District Court Wrongly Relied on Contests Involving
Only White Candidates

At the same time that the district court was ignoring evidence*
regarding the electoral prospects of black candidates, it was 
according a wholly unwarranted degree of attention to black voting 
behavior in contests involving only white candidates. That the 
district court's findings in this case are centrally premised on 
the outcome of white-on-white elections is demonstrated, first, by 
its repeated reliance on defendants' expert report, see, e.g.. RE 
28 n.57, 34 n.66, and 40 n.76, which differs in quantitative
analyses from plaintiffs' expert report primarily in the inclusion 
of white-on-white contests. Second, by its inclusion of Table 2 
in its appendix (which fails to distinguish between elections 
involving black candidates and elections involving white candidates 
only) and, third, in its conclusion that blacks are able to elect 
their chosen candidates because they voted for the winning white 
candidate in three Supreme Court elections during the past decade 
in which no black candidate competed. RE 38.

The three elections to which the district court points are 
legally irrelevant. First, undisputed testimony shows that black 
candidates were deterred from running, so black voters had no 
"viable minority candidate" to choose. Gretna, 834 F.2d at 503. 
Thus, it was "virtually unavoidable," id. at 502, that a white 
candidate would be supported by a majority of black voters in 
Orleans Parish: their only other option was to stay home and not
participate at all. Second, defendants', own expert testified that 
each of the winning white candidates would have won the election 
regardless of how black voters voted, since each received a

37



majority of the white votes as well. See, e.g., DX 1, App. B, C. 
Thus, black votes were essentially meaningless.

3. The District Court Used an Improper Standard for
Assessing Black Political Cohesiveness

The district court acknowledged that "blacks support black 
candidates to a large degree," RE 45; see also RE 55 (showing that 
black support for black candidates in contests involving both black 
and white candidates was extremely high),23 but nevertheless 
declined to find racial bloc voting because of what it saw as a 
substantial amount of black "crossover" voting, RE 45, that is, 
black support for white candidates in black-on-white elections.

There could be no more clearly erroneous finding of fact than 
this. The evidence showed that, when black voters in Orleans 
Parish had the opportunity to vote for black candidates, they 
overwhelmingly supported those candidates. In 29 of 34 black-on- 
white contests analyzed by plaintiffs' expert, Dr. Richard L. 
Engstrom, and contained in Table 3 of the district court's opinion, 
black voters supported the black candidate. Black support for 
black candidates averaged 80%.

At its core, the district court's conclusion was irredeemably 
tainted by its misconception of the legal standard to be applied 
in assessing whether political cohesiveness has been shown. The 
level of black support for black candidates demonstrated by the

23 Even under the district court's misplaced view that black 
voting behavior should be assessed in white on white elections, 
blacks were still politically cohesive: in one election, over 98%
of black voters voted for the same candidate and in another, over. 
77% voted for the same candidate. RE at 38. While white-on-white 
elections may not provide black voters with an equal opportunity 
to elect a candidate of their choice, blacks in the First District 
are nonetheless cohesive in choosing among the available array of 
candidates.

38



record in this case is virtually identical to the level of minority 
support for minority candidates that proved political cohesiveness 
in Glngles, Campos. and Gretna. See Gingles. 478 U.S. at 59, 80- 
82; Campos. 840 F.2d at 1249; Gretna. 834 F.2d at 501 n. 11 
(finding political cohesion when between 65 and 67% of black voters 
voted for the black candidate),24 See supra at 8-9. No court has 
ever required a higher degree of black voting solidarity than was 
shown in this case.

4. There Was No Basis Whatsoever for the District Court's
Finding of Legally Sufficient White Crossover Support 
for Black Candidates

The record in this case is clear: in no black-on-white 
election did a majority of the white electorate support a black 
candidate. See RE 55. In fact, white support for black candidates 
averaged only 17% in majority black Orleans Parish. See supra at 
8. While this level of white crossover voting might permit the 
election of a black candidate in an election involving Orleans 
Parish only25 —  a point whose salience we discuss in the next 
section of this brief —  it is mathematically inadequate to allow

24 The statistical evidence of black political cohesiveness 
was further buttressed by undisputed lay testimony. See, e.g.. Tr. 
at 15 (testimony of Revius Ortique (discussing importance of black 
candidates who "feel the sensitivity that blacks feel toward each 
other and towards their own culture")).

25 Given the racial makeup of Orleans Parish's registered 
voters, a candidate receiving the votes of roughly 17% of the white 
registered voters and the votes of roughly 80% of the black 
registered voters would receive a majority of the votes cast. 
These figures, which are derived mathematically by multiplying the 
relevant percentages of registered voters and support, are 
consistent with the observed results. See, e.g. RE 55 (with 99% 
of the black vote and 13% of the white vote Ortique won an Orleans 
Parish-wide contest in 1979; with 96% of the black vote and 16% of 
the white vote, Gray won an Orleans Parish-wide contest in 1984; 
but with 83-85% of the black vote and only 9% of the white vote, 
Hughes lost an Orleans Parish-wide race in 1988).

39



a black candidate to win in the four-parish First District even if 
black voters support the black candidate unanimously.26 Since 
white crossover voting becomes legally significant only when it is 
sufficient to permit black candidates to win, the district court's 
finding in this case was both clearly erroneous as a matter of fact 
and patently erroneous as a matter of law.

5. The District Court's Reliance on Black Electoral 
Success Within Orleans Parish Was Misplaced

This case involves the question whether black voters in 
Orleans Parish have an equal opportunity to elect the candidate of 
their choice to the Louisiana Supreme Court from the current, 
majority-white, four-parish First District. If they do not, then 
section 2 has been violated. This case does not involve the 
question whether black voters in Orleans Parish can elect their 
preferred candidates to other offices from differently configured. 
maioritv-black electoral districts.

The evidence regarding plaintiffs' ability to elect a Supreme 
Court justice is clear and undisputed. They are numerically 
submerged within a four-parish, majority-white district. See RE 
16 (tables showing that Orleans Parish blacks are a decided 
numerical minority within the First District). Black candidates

26 For the black candidate to obtain an outright majority of 
the total votes, he or she would have to receive roughly 27% of 
the white vote, even if blacks supported the black candidate 
unanimously. Only 3 of 29 black candidates supported by the black 
community received that level of support from the white community. 
See RE Table 3. And those three were involved in Orleans Parish 
only races. As the district court noted in Major v. Treen. 574 F. 
Supp. 345 (E.D. La. 1983) (three-judge court), white voters in 
Orleans are more likely than white voters in the suburban parishes 
to support black candidates. No black candidate has ever received 
support close to 27% of the white votes in the three suburban 
parishes.

40



simply will not run from the present First District. See RE 34 
(while the district court finds no legal significance to the 
testimony, it does not disbelieve it). White voters in the First 
District have never voted for a black candidate at a level that, 
even hypothetically, would enable a black candidate to receive a 
majority of the votes cast in the four-parish-wide First District. 
See supra note 26.27

Instead of concentrating on the salient question, however, the
district court devoted the bulk of its discussion to descriptions
of black electoral success within majority-black Orleans Parish.
See RE 34-36 and 40-43. It concluded:

The overall present reality in the Court's view is not a 
picture of racial polarization to the detriment of the 
minority appellants isolated in Orleans Parish, but rather 
is an emerging political process in Metropolitan New Orleans 
wherein the talents of black individuals as leaders in the 
judiciary and in other traditionally political offices have 
been recognized by black and white voters. A brief glimpse 
at the statistical evidence serves to demonstrate that black 
individuals constitute a clear minority of elected 
officials, who have risen to positions of political 
prominence primarily in Orleans Parish only, where the 
greatest number of black individuals in the Metropolitan 
area reside.

RE 44 (emphasis added). The district court's conclusion is trebly 
flawed.

First, there was absolutely no evidence in the record to 
support its finding that there was an increasing level of support

27 The closest any black candidate has come was Edwin Lombard, 
who received a plurality of the votes in the First District in a 
multi-candidate primary for Secretary of State in 1987. See RE 60. 
Given the majority-vote requirement for the Supreme Court, and the 
clearly minimal level of white support for Lombard, who received 
under 20% of the white votes, RE 43, there is no basis for 
concluding that he could have won a runoff with a single white 
candidate (like Fox McKeithen "a candidate with great name 
recognition," RE 32), or that other black candidates in Supreme 
Court races are likely to win.

41



for black candidates by suburban white voters. No more than 20% 
of those voters supported any black candidate. See RE 32 (less 
than 20% of suburban whites supported Lombard) and Table 3 (only 
3% of Jefferson Parish whites supported one black Jefferson Parish 
judicial candidate and only 15-18% supported another in a separate 
race). Thus, there is no basis at all to discern an emerging 
biracial four-parish political process outside Orleans Parish.

Second, black political success within Orleans Parish is 
easily explained by one simple fact that sharply distinguishes 
Orleans Parish from the First District: blacks —  a minority of 
the electorate in the First District —  constitute a majority of 
the electorate in Orleans Parish. Thus, even where whites within 
Orleans Parish consistently refuse to support black candidates in 
black-on-white judicial contests, see RE 55 (Table showing that 
not a single black judicial candidate has received a majority of 
the white vote), black voters can still elect the candidate of 
their choice because they are a majority of the electorate. On the 
other hand, blacks are numerically submerged in the First District 
due to the presence of the overwhelmingly white suburban parishes. 
Thus, in the First District, black voters cannot elect the 
candidate of their choice unless a substantial proportion of white 
voters also supports that candidate.

Third, the district court wholly misunderstood the legal 
significance of black electoral success within Orleans Parish 
alone. That success does not relate to the question whether racial 
bloc voting in the four-parish area precludes plaintiffs from 
electing the candidate of their choice. Rather, it proves the 
first prong of the Gingles test: that black voters do have the

42



potential to elect their preferred candidates from a majority-- 
black single-member district, namely, Orleans Parish. In short, 
what the district court's discussion shows is that creating an 
Orleans Parish-only Supreme Court district would provide black 
voters with the opportunity, now denied them, to elect the justice 
of their choice.

C. The District Court's View of Judicial Elections
Originally, the district court believed that the Voting Rights 

Act did not protect the right of Orleans Parish black citizens -to 
an equal opportunity to elect their preferred candidates to the 
Louisiana Supreme Court. Chisom v. Edwards. 659 F. Supp. 183. 
This Court squarely rejected that belief: "Minorities may not be
prevented from using section 2 in their efforts to combat racial 
discrimination in the election of state judges . . . ." Chisom v. 
Edwards, 839 F.2d at 1065. The district court's attempt to 
disregard well-developed principles "employed to analyze voter 
polarization and vote dilution in . . . other types of elections," 
RE 20-21, represents little more than a misguided attempt to 
smuggle back into this case a view of judicial elections that has 
already been repudiated by this Court.

First, the district court identified no basis for its finding 
that exit polls provide better data for analyzing voter behavior 
than do regression and extreme case analyses of election returns. 
RE 21. This Court can take judicial notice of the recent 
experience in Virginia and New York with exit polls in black-on- 
white racially polarized contests: in both the Virginia
gubernatorial race and the New York mayoral race, exit polls 
drastically overestimated the level of white crossover voting

43



relative to the level of white votes actually received by the black 
candidates. See. e.q.. New York Times. November 8, 1989 at B-ll, 
col. 1.

Second, the district court's supposition that judicial 
elections "are characterized by lower turnout, higher roll-off 
rates and by less voter interest" than other elections, RE 21, is 
both clearly erroneous and legal irrelevant. The district court's 
conclusion rests on the judgment of defendants' expert, Dr. Ronald 
Weber. See id. n. 27. But the scholarly sources on which Weber 
relied reached exactly the opposite conclusion from the one drawn 
by the district court. They found that judicial elections are not 
unique.28 29

The evidence in this case bears out the general scholarly
conclusion. Dr. Engstrom performed an analysis at the request of
the court, see Tr. at 216, comparing voter participation rates in
judicial elections with those in other so-called low salience
elections. See PX 7. In a number of cases, voter participation
in judicial elections exceeded participation in other low salience 

29contests.

28 P. DuBois, From Ballot to Bench: Judicial Elections and 
the Quest for Accountability 62 (1980); see also, Tr. at 214-15; 
Volcansek, "The Effects of Judicial-Selection Reform: What We Know 
and What We Do Not" in The Analysis of Judicial Reform 85 (P. 
DuBois ed. 1982) (scholar relied on by Weber writes that 
"[r]esearchers exploring the question of voter participation note 
that in judicial races it is no lower than in other low-salience 
contests").

29 For example, in November 1986, more voters cast ballots in 
an Orleans Parish municipal judgeship contest (151,029) than in an 
at-large school board election (149,569). Similarly, in November 
1982, more votes were cast in the elections for the Criminal 
District Court, Division H judgeship (84,102) than for an at-large 
seat on the school board (82,762). PX 7.

44



Third, every other court within this Circuit that has 
addressed the issue has applied the well-developed standard 
statistical techniques to judicial election results.30

In short, the district court had no empirical, theoretical, 
or legal basis for its conclusions. And because its misguided 
refusal to apply well-developed section 2 jurisprudence to the 
uncontested facts permeated its analysis of racial polarization, 
this Court should reverse its conclusions outright.

III. The District Court Made Factual And Legal Errors With
Regard To The Remaining Senate Factors
"[A] finding is 'clearly erroneous' when although there is 

evidence to support it, the reviewing court on the entire evidence 
is left with the definite and firm conviction that a mistake has 
been committed." Campos v. City of Baytown, 84 0 F.2d at 1243, 
quoting Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 
(1985), (emphasis added). Section 2 requires the court to look at 
the totality of circumstances. The district court below made
relevant yet isolated findings with regard to each Senate Factor 
but stopped short of drawing the obvious and appropriate 
conclusions from these findings. The district court also made 
errors of law and fact based on the Senate Factors that are 
"predicated on a misunderstanding of the governing rule of law." 
Gingles, 478 U.S. at 79, quoting Bose Corp. v. Consumers Union of 
Inc. 466 U.S. 485, 501 (1984). Finally, the court failed to give

30 See, e.g.. LULAC v . Mattox. Civ. Ac. No. 88-CA-154 (W.D.
Tex. November 15, 1989); Rangel v. Mattox. Civ. Ac. No. B-88-053
(S.D. Tex. July 28, 1989); Clark v. Edwards. Civ. Ac. No. 86-435 
(M.D. La. Aug. 15, 1988); Martin v. Allain, 658 F. Supp. 1183 (S.D. 
Miss. 1987) .

45



proper weight to the Senate Factors, and to view them interactively 
as part of a "functional view of the political process" in the 
First District, as directed by this Circuit and the Supreme Court 
in Gingles. 478 U.S. at 45.

Historical Discrimination and Socioeconomic Disparities: "The 
essence of a section 2 claim is that a certain electoral law, 
practice, or structure interacts with social and historical 
conditions to cause an inequality in the opportunities enjoyed by 
black dnd white voters to elect their preferred representatives." 
Gingles. 478 U.S. at 47; see also. Westwego. 872 F.2d at 1211, 
quoting Gingles. Although the district court found that Louisiana 
has a history of discrimination touching upon the right of blacks 
to vote, RE 24, as well as a history of discrimination in 
education, housing and employment, the vestiges of which still 
exist RE 29-30, the court failed to view these findings dynamically 
with other Senate Factors to determine whether the vestiges of 
discrimination in the First District "interact with present 
political structures to perpetuate a historical lack of access to 
the political system." Westwego. 872 F.2d at 1211-1212.

Instead, the district court made findings on Louisiana's 
continuing legacy of discrimination in a vacuum. While noting the 
existence of discrimination, the court failed to acknowledge that 
discrimination in the First District inhibits the ability of blacks 
to participate in the political process, even when the record 
reflects that present day discriminatory practices have been 
targeted specifically at black voters. See. Testimony of Dr.

46



Raphael Cassimere, Tr. at 132; see also. Long v. Gremillion. supra.
Similarly, the court below found that the "relatively lower 

economic status of local black residents further affects 
accessibility to better education and such practicalities as 
campaign funding." RE 31. Despite this finding, however, the 
court concluded that black candidacies are not limited by vestiges 
of past discrimination, RE 34, and it failed to make any findings 
reflecting the fact that the interaction of historical 
discrimination and the low economic status of blacks inhibits the 
ability of blacks in the First District to participate in the 
political process.31 The district court simply did not "consider 
this evidence in the light intended by Congress." Westwego. 872 
F .2d at 1211-1212.

Racial Appeals in Campaigns: The district court's finding on 
racial appeals in campaigns in the First District failed "to take 
note of substantial contrary evidence" and, as such, is clearly 
erroneous. Westwego. 872 F.2d at 1203, quoting Velasguez v. City 
of Abilene. 725 F.2d 1017, 1021 (5th Cir. 1984). The district 
court found that "there is no suggestion or record evidence of 
racial overtones or appeals in judicial or other elections" in the 
First District. RE 37. This finding is entirely at odds with the 
credible testimony of respected community leaders and activists in 
the First District.

31 Although the court credited the testimony of Judges Johnson 
and Ortique to the effect that black candidates have difficulty 
raising campaign funds because of pessimism about the chances of 
black electoral success, it found the testimony of these witnesses 
regarding the districting scheme's chilling effect on black 
political aspirations "speculative and lacking probative value." 
RE 34.

47



Uncontroverted testimony shows explicit incidents involving 
the use of racial appeals in political campaigns in the First 
District, particularly in Jefferson, Plaquemines and St. Bernard 
parishes. See also supra. at 14, 15.

The court below simply ignored unrebutted testimony of 
credible witnesses, and failed to attach any weight or significance 
to findings that supported the conclusion that race continues to 
play a prominent role in political campaigns in the First District. 
The court's conclusions are unsupported by the record and are, 
therefore, clearly erroneous. See. Gretna, 834 F.2d at 498, n.4.

Enhancing Factors: The district court failed to draw 
appropriate inferences from its findings of fact regarding the 
existence of enhancing factors in the First District. Although the 
court found that the State imposes a majority-vote requirement for 
election to the Supreme Court, RE 13, and that the two positions 
for Supreme Court justice in the First District are staggered, RE 
14, the court simply disregarded the significance of these 
enhancing factors and abdicated its responsibility to view the 
Senate Factors interactively.

Minority Electoral Success: The district court erroneously 
found that blacks in the First District have enjoyed increased 
minority electoral success based solely on the success of black 
candidates in majority black Orleans Parish. See supra Arg. II. 
B.5.

In reviewing black electoral success in Orleans, the court 
looked at elections in which black candidates ran unopposed. The 
court failed to take into account "the benefits incumbency and 
running essentially unopposed conferred on some of the successful

48



black candidates" in Orleans Parish. Gingles. 478 U.S. at 60. 
Furthermore, although the court found that although blacks have an 
opportunity to elect their preferred candidates in Orleans Parish 
only, see RE 44-46, blacks are still "a clear minority of elected 
officials." RE 44.

Tenuousness: The district court made no findings on the 
tenuousness of the policy underlying the maintenance of the First 
District as the sole multi-member Supreme Court district. When 
viewed interactively with the unusually large size of the First 
District among other election districts in the state, the district 
court's silence on the tenuousness of the currently constituted 
First District is a clear error. See. Westwego, 872 F.2d at 1204.

CONCLUSION
Based on the unrebutted and uncontroverted evidence, the 

district court was compelled as a matter of law to find a section 
2 violation. Plaintiffs respectfully request that this Court 
reverse the district court's judgment and remand with instructions

49



to enter judgment for plaintiffs, providing the state reasonable 
time in which to impose a remedy.

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

ROY RODNEY, JR.
McGlinchey, Stafford 
Mintz, Cellini, Lang 
643 Magazine Street 
New Orleans, LA 70130 
(504) 586-1200

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

Respectfully submitted,

- /■ r V  V

JULIUS LEVONNE CHAMBERS 
JUDITH REED 
DAYNA L. CUNNINGHAM 
SHERRILYN A. IFILL
99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 219-1900

RONALD L. WILSON 
310 Richards Bldg.
837 Gravier Street 
Suite 310
New Orleans, LA 70112 
(504) 525-4361

C. LANI GUINIER 
University of
Pennsylvania School of Law 
3400 Chestnut Street 
Philadelphia, PA 19104-6204 
(215) 898-7032

Date: December 18, 1989 Counsel for Plaintiffs-Appellants

50



APPENDIX



Senate Report Factors
"Section 2 protects the right of minority voters to be free 

from election practices, procedures or methods, that deny them the 
same opportunity to participate in the politicl process as other 
citizens enjoy. If as a result of the challenged practice or 
structure plaintiffs do not have an equal opportunity to 
participate in the political processes and to elect candidates of 
their choice, there is a violation of this section. To establish 
a violation, plaintiffs could show a variety of factors, depending 
upon the kind of rule, practice, or procedure called into question.

Typical factors include:
t

1. the extent of any history of official discrimination in 
the state or political subdivision that touched the right of the 
members of the minority group to register, to vote, or otherwise 
to participate in the democratic process;

2. the extent to which voting in the elections of the state 
or political subdivision is racially polarized;

3. the extent to which the state or political subdivision 
has used unusually large election districts, majority vote 
requirements, anti-single shot provisions, or other voting 
practices or procedures that may enhance the opportunity for 
discrimination against the minority;

4. if there is a candidate slating process, whether the 
members of the minority group have been denied access to that 
process;

5. the extent to which members of the minority group in the 
state or political subdivision bear the effects of discrimination 
in such areas as education, employment and health, which hinder 
their ability to participate effectively in the political process;

6. whether political campaigns have been characterized by 
overt or subtle racial appeals;

7. the extent to which members of the minority group have 
been elected to public office in the jurisdiction.

Additional factors that in some cases have had probative value 
as part of plaintiffs' evidence to establish a violation are:

whether there is a significant lack of responsiveness on the 
part of elected officials to the particularized needs of the 
members of the minority group[;]

whether the policy underlying the state or political 
subdivision's use of a particular voting qualification, 
prerequisite to voting, or standard, practice or procedure, is tenuous."
S. Rep. No. 97-417, 97th Cong. 2d Sess. 28-9 (1982)



CERTIFICATE OF SERVICE

I hereby certify that on December , 1989, I served copies 
of the foregoing Brief for Plaintiffs-Appellants and Record 
Excerpts upon the attorneys listed below by causing them to be 
sent via United States mail, first class, postage prepaid:

William J. Guste, Jr., Esq. 
Attorney General 
Louisiana Department of Justice 
234 Loyola Avenue, Suite 700 
New Orleans, LA 70112-2096
M. Truman Woodward, Jr., Esq. 
1100 Whitney Building 
New Orleans, LA 70130
Blake G. Arata, Esq.
210 St. Charles Avenue 
Suite 4000
New Orleans, LA 70170
A .R . Christovich, Esq.
1900 American Bank Building 
New Orleans, LA 70130.
Moise W. Dennery, Esq.
21st Floor Pan American 

Life Center 
601 Poydras Street 
New Orleans, LA 70130

Robert G. Pugh, Esq.
330 Marshall Street 
Suite 1200
Shreveport, LA 71101
Irv Gorenstein, Esq.
U.S. Department of Justice 
P.O. Box 66078 
Washington, DC 20035-6075
George M. Strickler, Esq. 
639 Loyola Street,
Suite 1075
New Orleans, LA 70113
Peter Butler, Esq.
Butler, Heebe & Hirsh 
712 American Bank Building 
New Orleans, LA 70130
Moon Landrieu, Esq.
717 Girod Street 
New Orleans, LA 70130

1 ■ ' L L ~ - '  ’■ ' /

Counsel for Plaintiffs-Appellants



V *
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