Correspondence from Karlan to Ganucheau (Clerk); Reply Brief for Plaintiffs-Appellants Ronald Chisom, et al.
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October 2, 1987

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Case Files, Chisom Hardbacks. Correspondence from Karlan to Ganucheau (Clerk); Reply Brief for Plaintiffs-Appellants Ronald Chisom, et al., 1987. 6f45b842-f211-ef11-9f89-0022482f7547. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/d8383f96-edef-4958-9bda-c108f6c4e0d7/correspondence-from-karlan-to-ganucheau-clerk-reply-brief-for-plaintiffs-appellants-ronald-chisom-et-al. Accessed June 17, 2025.
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October 2, 1987 • Hon. Gilbert F. Ganucheau Clerk United States Court of Appeals for the Fifth Circuit 600 Camp Street New Orleans, LA 70130 Re: No. 87-3463, Chisom v. Edwards Dear Mr. Ganucheau: I am enclosing for filing the original and six copies of appellants' reply brief. Thank you for your consideration. 406Rectfully, VAA,Utt-S Pamela S. Karlan Counsel for Appellants cc: All counsel NINETY NINE HUDSON STREET, 16th FLOOR • (212) 219-1900 • NEW YORK, N.Y. 10013 • IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 87-3463 X RONALD CHISOM, et al., Plaintiffs-Appellants, V. EDWIN EDWARDS, et al., Defendants-Appellees. X REPLY BRIEF FOR PLAINTIFFS-APPELLANTS RONALD CHISOM, ET AL. WILLIAM P. QUIGLEY . 631 St. Charles Avenue New Orleans, LA 70130 (504) 524-0016 ROY J. RODNEY, JR. 643 Magazine Street New Orleans, LA 70130 (504) 586-1200 JULIUS L. CHAMBERS CHARLES .STEPHEN RALSTON • • - ••• - C. LA Nf GUINIER PAMELA S. KARLAN . 99 Hudson Street, 16th Floor New York, NY 10013 (212) 219-1900 RON WILSON Richards Building, Suite 310 837 Gravier Street New Orleans, LA 70112 (504) 525-4361 Counsel for Plaintiffs- Appellants TABLE OF CONTENTS Page I. Section 2 of the Voting Rights Act Does Not Contain a "Judicial Elections Exception" 1• II. The Distinction Appellees Draw Between Section 2 and Section 5 Does Not Justify Excluding Judicial Elections From Section 2's Scope III. Appellants Are Not Required Either To Plead or To Prove Discriminatory Intent With Respect to Their Section 2 Claims 5 6 IV. Appellants Have Stated a Claim Under the Fourteenth and Fifteenth Amendments to the Constitution 7 V. Appellants Have Standing To Litigate this Case 8 Conclusion 10 Certificate of Service 12 TABLE OF AUTHORITIES Cases Pages Brown v. Dean, 555 F. Supp. 502 (D.R.I. 1982) 5 City of Mobile v. Bolden, 446 U.S. 55 (1980) 6 City of Rome v. United States, 446 U.S. 156 (1980) 1 Conner v. Waller, 421 U.S. 656 (1975) ..... 5 Haith V.. Martin, 618 F. Supp. 410 (E.D.N.C. 1985) (three- judge court), aff'd, U.S. , 91 L.Ed.2d 559 (1986) .. 6 Hardy v. Wallace, 603 F. Supp. 174 (N.D. Ala. 1985) (three- judge court) 5 Major v. Treen, 574 F. Supp. 325 (E.D.La. 1983) (three- judge court) 9,10 Martin v. Allain, 658 F. Supp. 1183 (S.D. Miss. 1987) 9 Martin v. Haith, U.S. , 91 L.Ed.2d 559 (1986) 2 Reynolds v. Sims, 377 U.S. 533 (1964) 6 Thornburg V. Gingles, 478 U.S. , 92 L.Ed.2d 25 (1986) ......... ..... ..... ................... . 6,7,8,9 United States v. Louisiana, 265 F. Supp. 703 (E.D.La. 1966) (three-judge court), aff'd, 386 U.S. 270 (1967) 5 Voter Information Projec\ v. City of Baton Rouge, 612 F.2d 208 (5th Cir. 1980) 2,8 Statutes Voting Rights Act of 1965, § 2, 42 U.S.C. § 1973 1,passim Voting Rights Act of 1965, § 5, 42 U.S.C. § 1973c 2,passim Voting Rights Act of 1965, § 14, 42 U.S.C. § 19731 4 ii Legislative History S. Rep. No. 97-417 (1982) 1,4,7 Voting Rights: Hearings Before Subcomm. No. 5 of the House Judiciary Committee, 89th Cong., 1st Sess. (1965) 3 iii IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 87-3463 RONALD CHISOM, et al., Plaintiffs-Appellants, V . EDWIN EDWARDS, et al., Defendants-Appellees. APPELLANTS' REPLY BRIEF The question presented by this case is a simple one: whether the Voting Rights Act of 1965, which was intended "to counter the perpetuation of 95 years of pervasive voting discrimination," City of Rome v. United States, 446 U.S. 156, 182 (1980), and to "create a set of mechanisms for dealing with continued voting discrimination, not step by step, but comprehensively and finally." S. Rep. No. 97-417, p. 5 (1982) ("Senate Report"], somehow fails to reach discrimination in the election of judges. Nothing in the language, structure, or legislative history of section 2 compels so cramped and barren a result. I. Section 2 of the Voting Rights Act Does Not Contain a "Judicial Elections Exception" • The law is clear: the unique role filled by judges does not immunize judicial elections from scrutiny under either the= Constitution, Voter Information Project v. City of Baton Rouge, 612 F.2d 208 (5th Cir. 1980), or section 5 of the Voting Rights Act, Martin v. Haith, U.S. , 91 L.Ed.2d 559 (1986). Thus, it is not enough for the State of Louisiana to argue that, because judges are not expected to respond directly to popular sentiment, it can use a system that results in minority citizens, having less of an opportunity to choose the judges of their choice than white citizens enjoy. See Appellees' Brief at 7-10. As this Court noted in Voter Information Project, u[i]t may well be true that Judges are elected to serve the people, not to represent them. But this fact makes plaintiffs' claims of racial discrimination no less important and no less deserving of constitutional protection." 612 F.2d at 212. 1 Instead, the State must provide some persuasive justification for giving section 2 a narrower scope than either the Constitution or the Voting Rights Act as a whole. The State claims to find an intention to exclude judicial elections in section 2's use of the phrase "representatives of their choice." That phrase simply cannot carry the weight placed on it. 1The right at stake here is not the right of black litigants or the public ao a whole to particular outcomes in cases decided by an elected judiciary; it is the right of black voters to have the same voice as white voters in the selection process. Clearly, the fact that judges are not expected to respond directly to the will of the people would not justify a State's providing that only women could vote in judicial elections or that the candidate receiving the smallest number of votes should be declared elected, even though judges elected in either of these fashions would presumably be impartial in the cases before them. 2 As..,we noted in our.opening brief, at the time Voter Information Project was decided, the standards for assessing racial vote dilution under. the Constitution and under section 2 . were identical. See Appellants' Brief at 8. Thus, in 1980, a challenge to judicial elections could have been maintained under section 2. 2 To reach the conclusion pressed by appellees, this Court would therefore have to go beyond saying that, in the absence of any external guidance, a statute using the word "representatives" should be read to include only practices related to the election of executives and legislators. It would have to find that Congress chose the word "representatives" as part of an affirmative effort to shrink the scope of section 2 to encompass only a particular subset of elections. But appellees have not pointed to a single statement anywhere in the legislative history that suggests that even a single Senator or Representative ever proposed excluding any class of elections from section 2. Indeed, since claims of racial vote dilution in judicial elections would in any event still be covered by the Constitution and section 5, it is hard to see what purpose excluding judicial elections from section 2 would serve.. Nor have appellees provided any support for their contention that the word "representatives" is a "term cf art," Appellees' Brief at 26, meant to exclude officials who do not directly "represent" 2The Voting Rights Act was originally intended to outlaw discrimination in "[e]very election in which registered electors are permitted to vote," Voting Rights: Hearings Before Subcommittee No. •5 of the House Judiciary Comm., 89th Cong., 1st Sess. 21 (1965) (testimony of Attorney General Katzenbach). 3 discrete constituencies rather than the functional equivalentof other phrases frequently used in the Act and the legislative history such as "candidate" or "public official." See Voting Rights Act, § 14(c)(1); Appellants' Brief at 16-17. Moreover, using the word "representatives" to narrow the reach of section 2 would clearly have results Congress did not intend. If "representatives" were read to limit section 2 solely to the election of legislators or executive officials, then section 2 would not bar states from using discriminatory electoral schemes for deciding bond issues or electoral propositions. But then section 2 would conflict with section 14(c)(1), which provides that "vote" or "voting" apply to "any primary, special, or general election" in which votes are cast with respect to"candidates for public or party office and propositions for which votes are received . . • • Similarly, although the 1982 amendments to section 2 enable plaintiffs to attack electoral practices that result in racial • vote dilution, Congress retained the ban on practices adopted or maintained with the intent of denying minorities an equal voice in the political process. Senate Report at 27. Under appellees' construction, however, a statute permitting only white voters to participate in judicial elections would pass muo-:er under section 2, since the selection of "representatives" would not be involved. Clearly, Congress could not have intended such a result. 4 II. The Distinction Appellees Draw Between Section 2 and Section 5 Does Not Justify Excluding Judicial Elections From Section 2's Scope Appellees discern a distinction between section 5, which, they claim, applies to the mechanics of voting, and section 2, which, they claim, "does not deal with the mechanics of voting •but with the fundamental right to vote for those who govern." Appellees' Brief at 25. They claim that this distinction renders. the Supreme Court's holding in Martin inapplicable to section 2 cases. As an initial matter, the distinction appellees draw is entirely illusory. Section 2 has frequently been used to address questions related to the "mechanics" of voting. See, e.g., Brown v. Dean, 555 F.Supp. .502 (D.R.I. 1982) (location of polling places subject to review under section 2); United States v. Louisiana, 265 F. Supp. 703 (E.D.La. 1966) (three-judge court) • (assistance to illiterate voters at the polling place), aff'd, 386 U.S. 270 (1967). And section 5 has frequently been used to address questions going to the -fundamental right to vote for those who govern. See, e.g., Conner v. Waller, 421 U.S. 656 (1975) (Mississippi legislative reapportionment); Hardy v. Wallace, 603 F. Supp. 174 (N.D. Ala. 1985) (three-judge court) (removing certain functions from county legislative delegation). Moreover, in rejecting the claim that the Voting Rights Act does not apply to judicial elections, the three-judge court in Haith v. Martin, 618 F. Supp. 410 (E.D.N.C. 1985), aff'd, 5 U.S. 91 L.Ed.2d 559 (1986), did not rely on the particular' characteristics of section 5. Indeed, it quoted section 2 to buttress its conclusion that "the Act applies to all voting, without limitation as to who, or what, is the object of the vote." Id. at 413 (emphasis in original). Finally, as we pointed out in our opening brief, section 2, like section 5, was clearly intended to afford protection beyond the protection provided by the one-person, one-vote principle of Reynolds v. Sims, 377 U.S. 533 (1964). See Appellants' Brief at 20-22. Appellants Are Not Required Either To Plead or To Prove Discriminatory Intent With Respect to Their Section 2 Claims The State advances two arguments as to why, even if this Court finds that section 2 applies to judicial elections, it should nonetheless hold that appellants have failed to state a claim upon which relief can be granted. Both arguments turn on the unfounded assumption that section 2 retained a purpose requirement for attacking judicial elections. The State's claim that the purpose requirement of Cit) of Mobile v. Bolden, 446 U.S. 55 (1980), remains intact for cases involving judicial elections lacks any merit. In amending section 2, Congress "dispositively reject[ed] the position of the plurality in Mobile v. Bolden . . which required proof that contested electoral practice or mechanism was adopted or maintained with the intent to discriminate against minority the 6 voters. . The intent test was repudiated . ." Thornburg V. Gingles, 478 U.S. , 92 L.Ed.2d 25, 42 (1986); see also Senate Report at 2, 15-16, 27. Not a single statement in the legislative history supports the State's conjecture that Congress intended to retain the purpose requirement for any subset of section 2 challenges. Appellees' distinction between sections 2(a) and 2(b) is equally meritless. Section 2(a) itself contains a results test, for it prohibits the use of any electoral practice "which results in a denial or abridgment of the rights of any citizen of the United States to vote on account of race or color . ." 42 U.S.C. § 1973 (emphasis added). Appellees' claim that section 2(a) was not "substantially changed in the 1982 amendments," Appellees' Brief at 33, thus reflects a total misunderstanding of the legislative history. Second, sections 2(a) and 2(b) are not, contrary to appellees' assertion, distinct proscriptions. Rather, as the opening clause of section 2(b)--"[a] violation of subsection (a) is established"--shows, section 2(b) is an elaboration on the results test established by section 2(a). IV. Appellants Have Stated a Claim Under the Fourteenth and Fifteenth Amendments to the Constitution The State's assertion that appellants failed to allege a discriminatory purpose is belied by the complaint itself, which alleges that "the purpose and effect of [defendants'] actions is to dilute, minimize, and cancel the voting strength of 7 plaintiffs." RE 22. In Voter Information Project, this Court:.., held that "if plaintiffs can prove that the purpose and operative effect of such purpose of the at-large election schemes [used for electing judges] in Baton Rouge is to dilute the voting strength of black citizens, they are entitled to some form of relief." 612 F.2d at 212. Thus, at this stage of the proceedings, it simply cannot be said that plaintiffs have failed to state a constitutional claim upon which relief can be granted, see Fed. R. Civ. P. 12(b)(6), since this Court has already held that a virtually identical claim does survive a motion to dismiss. V. Appellants Have Standing To Litigate this Case Amici Washington Legal Foundation and Allied Educational Foundation have argued that appellants lack Article III standing to litigate claims under either the Voting Rights Act or the Constitution. See Brief Amicus Curiae at 18-21. But amici's claim that voting rights plaintiffs fail to show any injury in fact unless they can show that a specific candidate who was the choice of the black community ran for judicial office and lost as a result of the use of multimember electoral districts finds no support in the Voting Rights Act. In Thornburg v. Gingles, the Supreme Court recognized that there will be vote dilution cases in which there have been no minority candidates for the pakticular position at issue: "Where a minority group has never been able to sponsor a candidate, courts must rely on other factors that tend to prove unequal 8 access.to the.political process." 478 U.S. at , 92 L.Ed.2d at *51, n. 25. See Martin v. Allain, 658 F. Supp. 1183 (S.D. Miss. 1987) (finding violations of section 2 with respect to some judicial districts as to which there was no evidence of black candidacy on the basis of the geographic submergence of concentrations of black voters and the pervasiveness of racial bloc voting for other judicial and legislative positions). Indeed, the reason why no minority has ever run for a particular position may be a direct function of the process used for choosing that office. Potential candidates for the Louisiana Supreme Court are no doubt aware of the numerical submergence of the black community of Orleans Parish within a larger white community and of the history of racial bloc voting for judicial office, see Major v. Treen, 574 F. Supp. 325, 337-38, n. 17 (E.D.La. 1983) (three-judge court) (reporting polarization in elections for over a dozen lower judicial offices). In light of these factors, it is hardly surprising that black candidates have decided not to expend the financial and personal resources required for a serious campaign. When black voters are faced with an electoral structure that makes it impossible for them to participate equally in the political process, they are not required to wait for redress until they are able to persuade a candidate to undertake a probably futile campaign. Thus, for example, in Major v. Treen, 574 F. Supp. 325, the three-judge district court struck down the reapportionment of House Districts 1 and 2 despite the fact that 9 no black candidate had yet run and lost*under the new plan, because it was clear that the plan diluted the collective black voting strength of Orleans Parish. Appellants' injury does not depend on the district court's assessing the question whether some future candidate supported by the black community will lose ,as a result of the current election scheme. Rather, the injury is direct and palpable: black citizens currently lack the ability to elect the candidate of their choice because of their submergence in a predominantly white multimember district and the pervasiveness of racial bloc voting in Louisiana. Plaintiffs therefore satisfy the standing requirement of Article III. Conclusion This Court should reverse• the decision of the district court and hold that appellants have stated causes of action under both section 2 of the Voting Rights Act and the Fourteenth and Fiftcenth Amendments to the Constitution. Respectfully submitted, cAL L5 6thiuk_ WILLIAM P. QUIGLEY 631 St. Charles Avenue New Orleans, LA 70130 (504) 524-0016 10 JULIUS L. CHAMBERS CHARLES STEPHEN RALSTON C. LANI GUINIER PAMELA S. KARLAN 99 Hudson Street, 16th Floor New York, NY 10013 (212) 219-1900 ROY J. RODNEY, JR. 643 Magazine Street New Orleans, LA 70130 (504) 586-1200 Dated: October 2, 1987 11 RON WILSON Richards Building, Suite 310 837 Gravier Street New Orleans, LA 70112 (504) 525-4361 Counsel for Plaintiffs- Appellants CERTIFICATE OF SERVICE I, Pamela S. Karlan, hereby certify that on October 2, 1987, I served copies of the foregoing brief upon the attorneys listed below via United States mail, first class, postage prepaid: Kendall L. Vick, Esq. Asst. Atty. General La. Dept. of Justice 234 Loyola Ave., 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 Mark Gross, Esq. Civil Rights Division, Voting Section U.S. Department of Justice Room 5718 10th Street & Pennsylvania Ave., N.W. Washington, D.C. 20530 Paul D. Kamener, Esq. Washington Legal Foundation 1705 N Street; N.W. Washington, D.C. 20036 aukola ri11(1)/4•,_ Pamela S. Karlan Counsel for Plaintiffs- Appellants 12