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

    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