Chisom v. Roemer Joint Appendix

    Nos. 90-757 and 90-1032

3n tf)e Supreme Court of tfje Untteb Stalest
O ctober  T e r m , 1990

Ro nald  C h isom , et  a l ., petitioners

v.
C harles E . R o em er , et  a l .

U nited  States O f A m er ic a , petition er

v.
C harles E . R o em er , et a l .

ON WRITS OF CERTIORARI TO THE 
UNITED STA TES COURT OF APPEALS FOR THE FIFTH CIRCUIT

JOINT APPENDIX

Kenneth W .Starr 
Solicitor General 
Department o f  Justice 
Washington, D.C. 20530 
(202) 514-2217
Counsel for the United States

Julius Levonne Chambers 
Charles Stephen Ralston 
Dayna L. Cunningham 
Sherrilyn A. I fill 

99 Hudson St., 16th Floor 
New York, N. Y. 10013 
(212) 219-1900 
Counsel fo r  Petitioners 

Ronald Chisom, et al.

PETITIONS FOR WRITS OF CERTIORARI 
FILED NOVEMBER 14, 1990 (No. 90-757) 
AND DECEMBER 28, 1990 (No. 90-1032) 

CERTIORARI GRANTED JANUARY 18, 1991

Robert G. Pugh 
Robert G. Pugh, J r.

Pugh, Pugh & Pugh 
Commercial National Tower 
Suite 2100 
333 Texas Street 
Shreveport, LA 71101-5302 
(318) 227-2270
Counsel for Respondents 

Charles E. Roemer, et al.



3 n  tf)c Suprem e C o u rt o f tfje Mmtetr States;
O ctober  T e r m , 1990 

No. 90-757
R onald  C h iso m , et  a l ., petition ers 

v.
C harles E . R o em er , et  a l .

No. 90-1032
U nited  States O f A m erica , petition er

v.

C harles E . R o em er , et  a l .

ON WRITS OF CERTIORARI 
TO THE UNITED STA TES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

CONTENTS OF JOINT APPENDIX*

1. District Court Docket Entries.................  1
2. Court of Appeals Docket Entries,

No. 87-3463 ................................................  3
3. Court of Appeals Docket Entries,

No. 89-3654 ................. ........................... . 4
4. Plaintiffs Amended Complaint, filed Sept.

30,1986...............................................  5
5. District Court decision of May 1, 1987, as

amended, dismissing the complaint.........  12
6. Court of Appeals decision of February 29,

1988 .............................................................. 26

(i)



11

CONTENTS —Continued: Page
7. Complaint in Intervention of United States,

filed August 4, 1988 .....................................  45
8. Answer of defendants, filed August 15, 1988 . 51
9. Answer of defendants to United States Com­

plaint filed April 4, 1989 .............................  60
10. Order granting certiorari in No. 90-757.......... 63
11. Order granting certiorari in No. 90-1032........ 64 *

* The November 2, 1990, opinion of the court of appeals and the 
September 13, 1989, opinion of the district court are printed in the ap­
pendix to the petition for writ of certiorari filed in 90-757 and have not 
been reproduced herein.



UNITED STATES DISTRICT COURT FOR THE 
EASTERN DISTRICT OF LOUISIANA

No. 86-4075

R onald  C hisom  and  U nited  States

v.

C harles E . R o em er , et  a l .

RELEVANT DOCKET ENTRIES

DATE FILED DOCUMENT

9/19/86 Complaint.
*  *  *

9/30/86 Pltf’s amended complt.
*  *  *

5/1/87 OPINION that defts’ mtn to dismiss for fail­
ure to state a claim upon which relief can be 
granted is granted; unless pltfs’ complt is 
amended w/in 10 days of entry of this opin­
ion clerk of Court is directed to enter judg 
dismissing pltfs’ claim at their costs.

* * *
5/7/87 Pltfs NOTICE OF APPEAL to 5 th Circuit

from judg of 5/1/87 granting deft’s mtn to 
dismiss.

* * *

( 1)



2

DATE FILED

5/31/88

8/ 8/88
8/15/88

4/4/89

4/5/89

9/13/89

9/14/89

9/15/89

11/13/89

DOCUMENT

JUDGMENT FROM 5TH CIRCUIT — OR­
DERED that judg of D.C. is REVERSED & 
case is REMANDED to D.C. for further 
proceedings. (Brown, Johnson & Higgin­
botham) issd as mandate 5/27/88.

4c 4c %

INTERVENTION OF U.S.A.
ANSWER of defts to pltfs’ complt.

* ❖  *

ANSWER of defts to intervention.
4s 4c 4«

NON JURY TRIAL dktd 4/6/89.
4c 4c 4c

OPINION —Clerk is directed to enter judg 
in favor of defts dismissing pltfs claims. 
(CSjr) dltd 9/13/89.
JUDGMENT is ORDERED in favor of all 
defts & agst all pltfs & U.S.A. as intervenor, 
dismissing suit w/prj, pltfs to bear all costs. 
9/13/89 dktd 9/14/89.

* * *

Pltfs’ notice o f appeal from final judgment 
entered on 9/13/89.

4c 4c 4«

Notice o f appeal by U.S.A. from judg en­
tered 9/14/89.



UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No. 87-3463

R onald  C h iso m , et a l . 

v.

E dw in  E dw ards , et  a l .

RELEVANT DOCKET ENTRIES

DATE FILED DOCUMENT
%

2/29/88 Opinion rendered.



4

UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No. 89-3654

R onald  C hisom  and  U nited  States

v.

C harles E. R o em er , et  a l .

RELEVANT DOCKET ENTRIES

DATE FILED DOCUMENT
❖  * *

11/02/90 Opinion rendered —remanded.
* * *



5

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF LOUISIANA

CIVIL ACTION NUMBER 86-4075
R onald  C h iso m , M arie  Bookm an , W alter  W illa r d , 

M arc  M o r ia l , L ouisiana  Voter  R eg istra tio n /  
E ducation  C rusa de , and  H enry A. D illo n , III

PLAINTIFFS

versus
E dwin  E dw ards , in his capa city  as G overnor  of 
th e  State  of L o uisia n a ; J ames H . Brow n , in his 

capacity  as Secretary  o f  th e  State  of L o u isia n a ; and  
J erry M. F o w ler , in his capa city  as C omm issioner 

of E lections of th e  State  of L ouisiana  
defendants

Section A 
Magistrate 6

CLASS ACTION 
THREE JUDGE COURT

AMENDED COMPLAINT

I. PRELIMINARY STATEMENT

This action is brought by the plaintiffs on behalf of all 
black registered voters in Orleans parish to challenge the 
election of Justices to the Louisiana Supreme Court from 
the New Orleans area. Plaintiffs contend that the present 
system of electing judges, whereby the parish of Orleans, 
St. Bernard, Plaquemines, and Jefferson elect two Justices 
to the Louisiana Supreme Court at-large, is a violation of



6

II. JURISDICTION

This is an action for declaratory and injunctive relief 
brought pursuant to 42 U.S.C. Section 1973 and 42 U.S.C. 
Section 1983. This Court has jurisdiction pursuant to 28 
U.S.C. Section 1331 and Section 1343 as well as 42 U.S.C. 
Section 1973.

Plaintiffs also seek declaratory and other appropriate 
relief pursuant to 28 U.S.C. Sections 2201 and 2202.

Plaintiffs’ claims under the Voting Rights Act and under 
the Fourteenth and Fifteenth Amendments to the U.S. 
Constitution must be determined by a district court of 
three judges pursuant to 28 U.S.C. Sect. 2284 (a).

III. PARTIES

The individual plaintiffs are all black registered voters 
in Orleans parish. The organizational plaintiff is a non­
profit corporation comprised of Orleans Parish black reg­
istered voters active in voting rights issues. The plaintiffs 
sue on behalf of themselves and all other black registered 
voters in Orleans parish.

Edwin Edwards is Governor of the State of Louisiana. 
Fie is sued in his official capacity of Governor. Mr. Ed­
wards has the duty to support the Constitution and laws of 
the State of Louisiana and of the United States and to see 
that these laws are faithfully executed.

James H. Brown is Secretary of the State of Louisiana. 
He is sued in that official capacity. As Secretary of State, 
Mr. Brown has the duty to prepare and certify the ballots 
for all elections, promulgate all election returns and ad­
minister the election laws of Louisiana.

Jerry M. Fowler is Commissioner of Elections of the 
State of Louisiana. He is sued in that official capacity. As

the 1965 Voting Rights Act, as amended, 42 U.S.C. Section
1973 because it dilutes the voting strengths of plaintiffs.



7

IV. CLASS ACTION ALLEGATIONS

This matter is brought as a class action pursuant to Rule 
23(b)(2) of the Federal Rules of Civil Procedure, on behalf 
of all black persons who are residents and registered voters 
of Orlean parish, State of Louisiana.

The number of persons who would be included in the 
above-defined class would be approximately 135,000.

Plaintiffs are adequate representatives of the class in 
that they are similarly situated with the rest of the mem­
bers of the class. There are no actual or potential conflicts 
of interest and the attorneys for plaintiffs are competent 
and able to handle the litigation.

The questions of law and fact common to the class are 
those implicit in this complaint including whether the 
defendants should be ordered to comply with the Voting 
Rights Act in the election of Justices to the Louisiana Su­
preme Court from the New Orleans area.

V. FACTS

The State of Louisiana elects seven Justices to the Lou­
isiana Supreme Court.

The method of electing Justices to the Louisiana 
Supreme Court is set out at Louisiana Revised Statute 
13:101. This statute orders that the state be divided into six 
Supreme Court districts which elect seven Justices. Each 
of the Supreme Court districts elects one Justice, except 
for the First Supreme Court district which elects two Jus­
tices at-large.

The First Supreme Court district is made up of the par­
ishes of Orleans, St. Bernard, Plaquemines, and Jeffer­
son, from which two Justices are elected at-large.

Commissioner of Elections, he has the duty to work closely
with the office of the Secretary of State to prepare and cer­
tify the ballots for all elections held in Louisiana.



8

The First District is the only Supreme Court district in 
Louisiana that is not a single member district.

The First Supreme Court District of Louisiana contains 
approximately 1,102,253 residents of which 63.36% or 
698,418 are white and 379,101 or 34.4% are black. The 
voter registration data for the First Supreme Court Dis­
trict of Louisiana indicates a total registered voter popula­
tion of 515,103. Of this total, 350,213 or 68% are white 
and 162,810 or 31.61% are black.

If the First Supreme Court District of Louisiana were 
divided into two single member districts, the average pop­
ulation would be approximately 551,126 persons in each 
district. Because Orleans parish’s present population is 
555,515, the most logical division of the district into two 
single member districts would have Orleans parish electing 
one Supreme Court Justice and the parishes of Jefferson, 
St. Bernard, and Plaquemines together electing the other 
Supreme Court Justice.

If the present First Supreme Court District was divided 
as indicated in the preceding paragraph, the Orleans par­
ish district would have a black population and voter regis­
tration majority. The Orleans parish district would have 
236,987 white residents or 42.5% and 308,149 black resi­
dents or 55.3%. The voter registration figures indicate 
that the district would have 124,881 white voters or 47.9% 
and 134,492 black voters or 51.6%.

The Supreme Court district which would be comprised 
of Jefferson, Plaquemines, and St. Bernard would have a 
total population of 544,738 of which 461,431 or 84.7% 
would be white and 70,952 black residents or 13.0%. The 
voter registration data indicates that 225,332 registered 
voters are white or 88.5% while 28,318 black voters are 
also registered or 11.1%.



9

Because of the official history of racial discrimination in 
Louisiana’s First Supreme Court District, the wide spread 
prevalence of racially polarized voting in the district, the 
continuing effects of past discrimination on the plaintiffs, 
the small percentage of minorities elected to public office 
in the area, the absence of any blacks elected to the Louisi­
ana Supreme Court from the First District, and the lack of 
any justifiable reason to continue the practice of electing 
two Justices at-large from the New Orleans area only, 
plaintiffs contend that the current election procedures for 
selecting Supreme Court Justices from the New Orleans 
area dilutes minority voting strength and therefore violates 
the 1965 Voting Rights Act, as amended.

VI. CAUSES OF ACTION

The defendants are in violation of Section 2 of the 1965 
Voting Rights Act, as amended, 42 USC Section 1973 be­
cause the present method of electing two Justices to the 
Louisiana Supreme Court at-large from the New Orleans 
area impermissibly dilutes minority voting strength.

The defendant’s actions are in violation of the Four­
teenth and Fifteenth Amendments to the United States 
Constitution and 42 USC Section 1983 in that the purpose 
and effect of their actions is to dilute, minimize, and 
cancel the voting strength of plaintiffs.

VII. EQUITY

This action is an actual controversy between parties hav­
ing adverse legal interests of such immediacy and reality as 
to warrant a declaratory judgment.

Plaintiffs have no adequate remedy at law and will suf­
fer irreparable injury unless injunctive relief is issued.



10

VIII. PRAYER

WHEREFORE, plaintiffs pray for relief as follows:
1. That a District Court of three judges be convened 

pursuant to 28 U.S.C. Sect. 2284 and 42 U.S.C. Sect. 1973 
to adjudicate this matter;

2. That this matter be certified as a class action;
3. That a preliminary and permanent injunction issue 

against the defendants as follows:
a. Restraining defendants from allowing any further 

elections of Justices from the First Supreme Court District 
in accordance with Louisiana Revised Statute 13:101 Sub­
section 1 until this court makes a decision on the merits of 
plaintiffs challenge;

b. Ordering the defendants to reapportion the First 
Louisiana Supreme Court District in a way that fairly rec­
ognizes the voting strength of minorities in the New Or­
leans area and completely remedies the present dilution of 
minority voting strength.

c. Ordering the defendants to comply with the 1965 
Voting Rights Act, as amended, 42 USC Section 1973;

4. That this court declare and determine that the pres­
ent system of electing two Justices at-large from the par­
ishes of Orleans, St. Bernard, Plaquemines, and Jefferson 
pursuant to Louisiana Revised Statute 13:101 Sub-section 
1 impermissibly dilutes minority voting strength and 
violates the 1965 Voting Rights Act, as amended, and also 
violates the Fourteenth and Fifteenth Amendments to the 
United States Constitution.

5. That attorney fees be awarded to plaintiffs;



11

Respectfully submitted,

/s /  W illiam  P. Q uigley 
William P. Quigley 
631 St. Charles Ave.
New Orleans, LA 70130 
(504) 524-0016

6. That there be other such relief as may be necessary
and proper.

Ron Wilson 
Richards Building 
Suite 310 
837 Gravier St.
New Orleans, LA 70112 
(504) 525-4361



12

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF LOUISIANA

Civil Action No. 86-4075 
R o nald  C h iso m , et  al 

versus
E dw in  E dw ards, et  al 

Section: “A”

AMENDED OPINION

This matter is before the Court on defendants’ motion 
to dismiss for failure to state a claim upon which relief can 
be granted pursuant to F.R.Civ.P. 12(b)(6). For the fore­
going reasons, defendants’ motion is GRANTED.

FACTS AND ALLEGATIONS

Ronald Chisom, four other black plaintiffs and the 
Louisiana Voter Registration Education Crusade filed this 
class action suit on behalf of all blacks registered to vote in 
Orleans Parish. Plaintiffs’ complaint challenges the pro­
cess of electing Louisiana Supreme Court Justices from 
the First District of the State Supreme Court. The com­
plaint alleges that the system of electing two at-large 
Supreme Court Justices from the Parishes of Orleans, St. 
Bernard, Plaquemines and Jefferson violates the 1965 
Voting Rights Act, as amended, 42 U.S.C. § 1973 the 
fourteenth and fifteenth amendments to the United States 
Federal Constitution and, finally, 42 U.S.C. § 1983. 
Plaintiffs argue that the election system impermissibly 
dilutes, minimizes and cancels the voting strength of 
blacks who are registered to vote in Orleans Parish.



13

More specifically, plaintiffs’ original and amended com­
plaint avers that the First Supreme Court District of Loui­
siana contains approximately 1,102,253 residents of which 
63.36%, or 698,418 are white, and 379,101, or 34.4% are 
black. The First Supreme Court District has 515,103 reg­
istered voters, of which 68% are white, and 31.61% are 
black. Plaintiffs contend that the First Supreme Court 
District of Louisiana should be divided into two single dis­
tricts. Plaintiffs suggest that because Orleans Parish’s 
present population is 555,515 persons, roughly half the 
present First Supreme Court District, the most logical divi­
sion is to have Orleans Parish elect one Supreme Court 
Justice and the Parishes of Jefferson, St. Bernard and 
Plaquemine together elect the other Supreme Court Jus­
tice. If plaintiffs’ plan were to be carried out, plaintiffs 
contend the present First Supreme Court District encom­
passing only Orleans Parish would then have a black pop­
ulation and voter registration comprising a majority of the 
district’s population. More specifically, plaintiffs assert 
presently 124,881 of the registered voters in Orleans are 
white, comprising 47.9% of the plaintiffs’ proposed dis­
trict’s voters; while 134,492 of the registered voters in 
Orleans are now black, comprising 51.6% of the envi­
sioned district’s voters. The other district comprised of 
Jefferson, Plaquemines and St. Bernard Parishes and 
would have a substantially greater white population than 
black, according to plaintiffs’ plan.

Plaintiffs seek class certification of approximately 
135,000 black residents of Orleans Parish, whom plaintiffs 
allege suffer from diluted voting strength as a result of the 
present at-large election system. Additionally, plaintiffs 
seek a preliminary and permanent injunction against the 
defendants restraining the further election of Justices for 
the First Supreme Court District until this Court makes a 
determination on the merits of plaintiffs’ challenge. Fur­



14

ther, plaintiffs seek an order requiring defendants to re­
apportion the First Louisiana Supreme Court in a manner 
which “fairly recognizes the voting strengths of minori­
ties in the New Orleans area and completely remedies the 
present dilution of minority voting strength.” (Plaintiffs’ 
Complaint, p. 7). Plaintiffs also seek an order requiring 
compliance with the Voting Rights Act and, finally, a dec­
laration from this Court that the Supreme Court election 
system violates the Voting Rights Act and the fourteenth 
and fifteenth amendments to the Federal Constitution.1

Defendants do not dispute the figures presented by 
plaintiffs in their amended complaint. Instead, they con­
tend that section 2 of the Voting Rights Act of 1965, as 
amended, the fourteenth and fifteenth amendments to the 
United States Federal Constitution and 42 U.S.C. § 1983 
fail to provide plaintiffs grounds upon which relief can be 
granted for plaintiffs’ allegation of diluted black voting 
strength.

SECTION 2 OF THE VOTING RIGHTS ACT OF 1965 
DOES NOT APPLY TO THE INSTANT ACTION

Prior to 1982, section 2 of the Voting Rights Act (42 
U.S.C. § 1973), “Denial or Abridgement of Rights to Vote 
on Account of Race or Color Through Voting Qualifica­
tions or Prerequisites,” read as follows:

No voting qualification or prerequisite to voting, or 
standard, practice, or procedure, shall be imposed or 1

1 Plaintiffs, earlier, sought a three judge court to hear this com­
plaint which was denied by this Court as the terms of 28 U.S.C. § 2284 
provide for a three judge court when the constitutionality of the ap­
portionment of congressional districts or the apportionment of any 
statewide legislative body is challenged. Nowhere does § 2284 provide 
for convening a three judge court when a judicial apportionment is 
challenged.



15

applied by any State or political subdivision to deny 
or abridge the right of any citizen of the United States 
to vote on account of race or color, or in contraven­
tion of the guarantees set forth in section 1973b(f)(2) 
of this title.

Section 2 of the Voting Rights Act was amended as a 
response to City o f Mobile, Alabama v. Bolden, 446 U.S. 
55, 100 S.Ct. 1490, 64 L.Ed. 47 (1980), in which the Su­
preme Court in a plurality opinion held to establish a 
violation of section 2 of the Voting Rights Act, minority 
voters must prove the contested electoral mechanism was 
intentionally adopted or maintained by state officials for a 
discriminatory purpose. After Bolden, Congress in 1982 
revised section 2 to make clear that a violation of the 
Voting Rights Act could be proven by showing a discrimi­
natory effect or result alone. United States v. Marengo 
County Commission, 731 F.2d 1546 n.l (11th Cir. 1984), 
appeal dismissed, cert, denied, 105 S.Ct. 375, 83 L.Ed.2d 
311. (1984)2 Section 2, as amended, 96 Stat. 134, now
reads:

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

(b) A violation of subsection (a) is established if,
based on the totality of the circumstances, it is shown

2 See S.Rep. 97-417, 97 Cong.2d Sess (1982) pp. 15-43 for a com­
plete discussion of Congress’ intent to overturn the section 2 “pur­
poseful discrimination” requirement imposed by Mobile v. Bolden.



16

that the political processes leading to nomination for 
election in the State or political subdivision are not 
equally open to participation by members of a class of 
citizens protected by subsection (a) of this section in 
that its members have less opportunity than other 
members of the electorate to participate in the politi­
cal process and to elect representatives o f their choice. 
The extent to which members of a protected class 
have been elected to office in the State or political 
subdivision is one circumstance which may be consid­
ered: Provided, that nothing in this section establishes 
a right to have members of a protective class elected 
in numbers equal to their proportion in the popula­
tion. 42 U.S.C. § 1973 (emphasis added).

Prior to the 1982 amendments to section 2, a three- 
judge court composed of Judges Ainsworth, West and 
Gordon, headed by Judge West, addressed a voting rights 
claim arsingfs/c] out of the same claims of discrimination 
as in this case, albeit not in a section 2 context. Wells v. 
Edwards, 347 F.Supp 453 (M.D. La. 1972), affd, 409 
U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973). In Wells, 
a registered black voter residing in Jefferson Parish, 
brought suit seeking a reapportionment of the judicial 
districts from which the seven judges of the Supreme 
Court of Louisiana are elected. Ms. Wells sought an in­
junction enjoining the state from holding the scheduled 
Supreme Court Justice elections and an order compelling 
the Louisiana Legislature to enact an apportionment plan 
in accordance with the “one man, one vote” principle and 
to reschedule the pending election. On cross motions for 
summary judgment, the three-judge court stated, “We 
hold that the concept of one-man, one vote apportionment 
does not apply to the judicial branch of government.” 342 
F. Supp. at 454. The Wells court took notice of Hadley v. 
Junior College District, 397 U.S. 50, 90 S.Ct. 791, 25



17

L.Ed.2d 45 (1970), in which the Supreme Court held, 
“Whenever a state or local government decides to select 
persons by popular election to perform governmental 
functions, the equal protection clause of the fourteenth 
amendment requires that each qualified voter must be 
given an equal opportunity to participate in that election 
. . . 90 S. Ct. 791, 795 (emphasis added), but
distinguished its holding by outlining the special functions 
of judges.

The Wells court noted many courts’ past delineations 
between elected officials who performed legislative or 
executive functions and judges who apply, but not create, 
law3 and concluded:

‘Judges do not represent people, they serve people.’ 
Thus, the rationale behind the one-man, one-vote 
principle, which evolved out of efforts to preserve a 
truly representative form of government, is simply 
not relevant to the makeup of the judiciary.

347 F. Supp. at 455.
The Wells opinion interpreted the “one man one vote” 

principle prior to the 1982 amendments to section 2, which 
added the phrase, “[T]o elect representatives of their 
choice.” 4 {See emphasis in quotation 42 U.S.C. 1973,

3 See, e.g., Stokes v. Fortson, 234 F. Supp. 575 (N.D. Ga. 1964) 
(“Manifestly, judges and prosecutors are not representative in the 
same sense as they are legislators or the executive. Their function is to 
administer the law, not to espouse a cause of a particular 
constituency”); Holshouser v. Scott, 335 F. Supp. 928 (D.D.C. 1971) 
(“We hold that the one man, one vote rule does not apply to state 
judiciary. . . .”); Buchanan v. Rhodes, 294 F. Supp. 860 (N.D. Ohio 
1966) (“Judges do not represent people, they serve people”); New 
York State Assn, o f  Trial Lawyers v. Rockefeller, 267 F. Supp. 148, 
153 (S.D. N.Y. 1967) (“The state judiciary, unlike the legislature, is 
not the organ responsible for achieving representative government.”)

4 This language did not appear in section 2 at the time of the Wells 
opinion.



18

supra.) The legislative history of the 1982 Voting Rights 
Act amendments does not yield a definitive statement 
noting why the word “representative” was added to section 
2. However, in this case, no such statement is necessary, as 
“to elect representatives of their choice” is clear and unam­
biguous.

Judges, by their very definition, do not represent voters 
but are “appointed [or elected] to preside and to admin­
ister the law.” Black’s Law Dictionary, 1968. As 
statements by Hamilton in the Federalist, No. 78 reflect, 
the distinction between Judge and representative has long 
been established in American legal history:

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

Indeed, our Federal Constitution recognizes the in­
herent difference between representatives and judges by 
placing the federal judiciary in an entirely different cate­
gory from that of other federal elective offices. It is note­
worthy that articles 1 and 2, which establish Congress and 
the Presidency, are lengthy and detailed, while Article 3,



19

which establishes the judiciary, is brief and free of direc­
tion, indicating the judiciary is to be free of any instruc­
tions. Today, Fifth Circuit jurisprudence continues to rec­
ognize the long established distinction between judges and 
other officials. See, e.g., Mortal v. Judiciary Committee 
o f State o f Louisiana, 565 F.2d 295 (5th Cir. 1977) en 
banc, cert, denied, 435 U.S. 1013, 98 S.Ct. 1887 (1978). 
(See also Footnote 1, supra.)

The legislative history of the Voting Rights Act Amend­
ments does not address the issue of section 2 applying to 
the judiciary,* 5 indeed, most of the discussion concerning 
the application of the Voting Rights Act refers to legisla­

5 The Chairman of the Senate Judiciary Committee’s Subcommittee 
on the Constitution, Senator Orrin Hatch, in voicing his strong oppo­
sition of the Legislative reversal of Bolden through the section 2 revi­
sions, made a brief reference to section 2 applying to judicial elections:

Every political subdivision in the United States would be liable to 
have its electoral practices and procedures evaluated by the pro­
posed results test of section 2. It is important to emphasize at the 
onset that for the purposes of Section 2, the term “political subdi­
vision” encompasses all governmental units, including city and 
county councils, school boards, judicial districts, utility districts, 
as well as state legislatures.

S. Rep. 97-417, 97 Cong. 2d Sess. 127, 151, reprinted in in 1982 U.S. 
Code Cong. & Admin. News 298, 323.

Although Senator Hatch’s comment indicates coverage of judicial 
districts by the Voting Rights Act, the purpose of the above passage 
was to illustrate Senator Hatch’s belief that the impact of the section 2 
Amendments’ “results test” would be far ranging and in his opinion, 
detrimental. Senator Hatch’s comments were included at the end of 
the Senate report usually reserved for dissenting Senators. The above 
passage did not portend to be a definative or even a moderately de­
tailed description of the coverage of the Voting Rights Act, nor does 
Senator Hatch provide any authority for his suggestion of the poten­
tial scope of section 2. Rather, this Court finds that the passage was 
meant to be argumentative and persuasive, and not as a means to 
define actual scope of the Act.



20

tive offices. Nevertheless plaintiffs ignore the historical 
distinction between representative and judge and the lack 
of any discernible legislative history in their favor and 
argue that the Voting Rights Act is a broad and remedial 
measure which must be extended to cover judicial election 
systems..6 Plaintiffs rely principally on Haith v. Martin, 
618 F. Supp. 410 (D.N.C. 1985) (three-judge court), a ff’d, 
without opinion, 106 S.Ct. 3268, 93 L.Ed.2d 559 (1986) 
for the proposition that the Court should ignore Wells v. 
Edwards, supra, and apply section 2 to the allegations 
contained in their complaint.7 In Haith, the district court 
held that judicial election systems are covered by section 5 
of the Voting Rights Act, which requires preclearance by 
the U.S. Justice Department of any voting procedures 
changes in areas with a history of voting discrimination. 
Plaintiffs, in essence, argue that because the Supreme 
Court, without opinion, affirmed the Haith district court 
in its application of section 5 to judicial elections, this 
Court should expand the holding of Haith to include sec­
tion 2 of the Voting Rights Act. Plaintiffs’ argument fails 
because section 5 does not specifically restrict its applica­

6 See e.g., United Jewish Organization o f  Williamsburg, Inc. v. 
Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977) (“It is ap­
parent from the face of the Act, from its legislative history, and from 
our cases of the Act itself was broadly remedial in the sense that it ‘was 
designed by Congress to banish the blight of racial discrimination in 
voting . . .’ ”), 130 U.S. at 156; South Carolina v. Katzenbach, 383 
U.S. 301, 86 S.Ct. 803 (1966) (The Voting Rights Act “reflects Con­
gress’ firm intention to rid the country of racial discrimination in 
voting”), 383 U.S. at 315.

7 Plaintiffs also rely on Kirksey v. Allain, Civ. Act. No. 
J85-0960(B), slip op. (S.D. MS. April 1, 1987), in which a district 
court dismissed the reasoning in Wells, and held section 2 does apply 
to the elected judiciary. Wells, supra, has precedential authority and 
clearly conflicts with Kirksey, an untested lower court opinion.



21

tion to election systems pertaining to representatives, a re­
striction included in the 1982 amendments to section 2.

Although a potential conflict may develop between the 
holdings in Wells and Haith, Wells clearly states the “one 
man one vote” principle is not applicable to judicial elec­
tions. This Court recognizes the long standing principle 
that the judiciary, on all levels, exists to interpret and ap­
ply the laws, that is, judge the applicability of laws in spe­
cific instances. Representatives of the people, on the other 
hand, write laws to encompass a wide range of situations. 
Therefore, decisions by representatives must occur in an 
environment which takes into account public opinion so 
that laws promulgated reflect the values of the represented 
society, as a whole. Judicial decisions which involve the in­
dividual or individuals must occur in an environment of 
impartiality so that courts render judgments which reflect 
the particular facts and circumstances of distinct cases, 
and not the sweeping and sometimes undisciplined winds 
of public opinion.

PLAINTIFFS’ FOURTEENTH AND FIFTEENTH AMENDMENT 
CLAIMS FAIL TO STATE A CLAIM UPON WHICH RELIEF 

CAN BE GRANTED AS PLAINTIFFS DO NOT PLEAD 
DISCRIMINATORY INTENT

The appropriate constitutional standard for establishing 
a violation of the fourteenth amendment in the context of 
voting rights is “purposeful discrimination.” Village o f 
Arlington Heights v. Metropolitan Housing Corp., 429 
U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); 8 - 
McMillian v. Escambia City, Fla, 688 F.2d 960 (5th Cir.

8 In Village o f  Arlington Heights v. Metropolitan Housing Corp., 
purposeful discrimination was held the standard necessary to establish 
a violation of the fourteenth amendment where plaintiff claimed a vil­
lage rezoning decision was racially discriminatory.



22

1982).9 Similarly, City o f Mobile, Alabama v. Bolden, 
supra, requires a court to establish a finding of discrimina­
tory purpose before declaring a fifteenth amendment vio­
lation of voting rights.10

In Voter Information Project, 612 F.2d 208 (5th Cir. 
1980), a panel composed of Judges Jones, Brown and 
Rubin (opinion by Judge Brown) held a suit that alleged 
the at-large scheme for electing city judges in Baton Rouge 
invidiously diluted the voting strength of black persons in 
violation of the fourteenth and fifteenth amendments to 
the United States Federal Constitution, and 42 U.S.C. 
§ 1983, could not be dismissed when the complaint alleges 
purposeful discrimination. At the trial level, Judge West 
relied on his reasoning in Wells, supra, that the one man,

9 In McMillian v. Escambia City, Fla., the Fifth Circuit held the 
Arlington Heights’ “purposeful discrimination” standard is appropri­
ate in fourteenth amendment voter discrimination claims.

10 Although there is a conflict between the requirement of “discrim­
inatory effect” in Section 2, which is intended to enforce the fifteenth 
amendment, and the requirement of “purposeful discrimination” for a 
fifteenth amendment violation standing alone, the Senate Judicary 
Committee addressed this point and recognized Congress’ limited abil­
ity to adjust the burden of proving Voting Rights Violations in its 
“Voting Rights Act Extension” Committee Report.

Certainly, Congress cannot overturn a substantive interpreta­
tion of the Constitution by the Supreme Court. Such rulings can 
only be altered under our form of government by constitutional 
amendment or by a subsequent decision by the Supreme Court.

Thus Congress cannot alter the judicial interpretations in 
Bolden of the fourteenth and fifteenth amendments by simple 
statute. But the proposed amendment to Section 2 does not seek 
to reverse the court’s constitutional interpretation.

S.Rep. 97-417, 97 Cong. 2d Sess. (1982), p. 41.
The Supreme Court, the only body empowered to interpret the Fed­

eral Constitution, has not seen fit to overrule its repeated determina­
tion that the fourteenth and fifteenth amendment claims require “pur­
poseful discrimination.”



23

one vote principle did not apply to the elections of judges, 
and dismissed plaintiffs’ suit. Judge Brown reversed, hold­
ing that the “one man, one vote” principle as espoused in 
Wells, supra, was not enough to dismiss plaintiffs com­
plaint. The Voter Information Court found:

The problem with the District Court’s opinion, how­
ever, is that it assumes the “one man, one vote” prin­
ciple was the exclusive theory of plaintiffs com­
plaints. In addition to a rather vaguely formulated 
“one man, one vote” theory, plaintiffs contend that 
both in design and operation, the at-large schemes 
dilute the voting strength of black citizens and pre­
vent blacks from being elected as judges. As the com­
plaint attacking the city judge election system alleges:

25. The sole purpose of the present at-large 
system of election of City Judge is to insure that 
the white majority will continue to elect all white 
persons for the offices of City Judge.
26. The present at-large system was instituted 
when “Division B” was created as a reaction to 
increasing black voter registration and for the 
express purpose of diluting and minimizing the 
effect of the increased black vote.
27. In Baton Rouge, there is a continuing his­
tory of “bloc voting” under which when a black 
candidate opposes a white candidate, the white 
majority consistently casts its votes for the white 
candidate, irrespective of the relative qualifica­
tions.

Plaintiffs contend that since most of the black popu­
lation of Baton Rouge and E. Baton Rouge Parish is 
concentrated in a few geographic areas, black citizens



24

could, under a single member district plan, elect at 
least some black judges.

612 F.2d at 211.
The Voter Information Project Court held the 

plaintiffs complaint contained sufficient allegations of 
intentional discrimination against black voters to survive a 
motion to dismiss: “If plaintiffs can prove that the pur­
pose and operative effect of such purpose of the at-large 
election schemes in Baton Rouge is to dilute the voting 
strength of black citizens, then they are entitled to some 
form of relief.” 612 F.2d at 212. Thus, the Voter Informa­
tion Project requires that “purpose and operative effect” 
be pled in a fourteenth and fifteenth amendment challenge 
to a judicial apportionment plan.

The complaint in the instant case states, in pertinent 
part:

Because of the official history of racial discrimination 
in Louisiana’s First Supreme Court District, the wide 
spread prevalence of racially polarized voting in the 
district, the continuing effects of past discrimination 
on the plaintiffs, the small percentage of minorities 
elected to public office in the area, the absence of any 
black elected to the Louisiana Supreme Court from 
the First District, and the lack of any justifiable 
reason to continue the practice of electing two Jus­
tices at-large from the New Orleans area only, plain­
tiffs contend that the current election procedures for 
selecting Supreme Court justices from the New 
Orleans area dilutes minority voting strength and 
therefore violates the 1965 Voting Rights Act, as 
amended.

(See Plaintiffs’ Complaint, p.5). Later on, the Complaint 
alleges:.

The defendants actions are in violation of the Four­
teenth and Fifteenth Amendment to the United States



25

Constitution and 42 U.S.C. § 1983 in that the pur­
pose and effect of their actions is to dilute, minimize, 
and cancel the voting strength of the plaintiffs.

{Id., p. 6.)
Although “purpose and effect” language in the second 
quotation above broadly read may imply plaintiffs’ inten­
tion to plead discriminatory intent, it is this Court’s con­
sidered opinion, based on the complaint as a whole, that 
plaintiffs intend to prove this claim based on a theory of 
“discriminatory effect” and not on a theory of “discrimi­
natory intent.” City o f Mobile Alabama v. Bolden, supra. 
For example, plaintiffs’ complaint does not allege the 
system by which the Louisiana Supreme Court Justices are 
elected was instituted with specific intent to discriminate. 
This contrasts with the specific allegations in Voter Infor­
mation Project, supra. Accordingly, plaintiffs lack the re­
quisite allegations in order to prove a violation of the four­
teenth or fifteenth amendment to the Federal Constitu­
tion. The Court reserves the right for plaintiffs to reurge 
its fourteenth and fifteenth amendment claims as they 
relate to the Court’s ruling that plaintiffs’ complaint only 
alleges “discriminatory effect.”

Accordingly, unless plaintiffs’ complaint is amended 
within ten (10) days of the entry of this opinion, the Clerk 
of Court is directed to enter judgment DISMISSING 
plaintiffs’ claim at their cost.

New Orleans, Louisiana, this 1st day of May, 1987.

/ s /  C harles Sc h w a r tz , J r .
Charles Schwartz, Jr.
United States District Judge



26

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No. 87-3463
R o nald  C h iso m , et  a l „ pla in tiffs-a ppella n ts  

versus
E dw in  E dw ards, et  a l ., defen da nts-a ppellees

APPEAL FROM THE UNITED STATES DISTRICT 
COURT FOR THE EASTERN DISTRICT 

OF LOUISIANA

February 29, 1988

Before B r o w n , J o h n so n , and H ig g in bo th a m , Circuit 
Judges. J o h n so n , Circuit Judge:

Plaintiffs, black registered voters in Orleans Parish, 
Louisiana, raise constitutional challenges to the present 
system of electing Louisiana Supreme Court Justices from 
the First Supreme Court District. Plaintiffs allege that the 
current at-large system of electing Justices from the First 
District impermissibly dilutes the voting strength of black 
voters in Orleans Parish in violation of Section 2 of the 
Voting Rights Act of 1965, as amended in 1982 and the 
fourteenth and fifteenth amendments. The district court 
dismissed the section 2 claim pursuant to Fed. R. Civ. P. 
12(b)(6) for failure to state a claim, finding that section 2 
does not apply to the election of state judges. Concluding 
that section 2 does so apply, we reverse.



27

The primary issue before this Court is whether section 2 
of the Voting Rights Act applies to state judicial elections.

I. FACTS AND PROCEDURAL HISTORY

The facts are undisputed. Currently, the seven Justices 
on the Supreme Court of Louisiana are elected from six 
geographical judicial districts. Five of the six districts elect 
one Justice each. However, the First District, comprised 
of four parishes (Orleans, St. Bernard, Plaquemines, and 
Jefferson Parishes), elects two Justices at-large.

The population of the four parish First Supreme Court 
District is approximately thirty-four percent black and 
sixty-three percent white. The registered voter population 
reveals a somewhat similar percentage breakdown, with 
approximately thirty-two percent black and sixty-eight 
percent white. Over half of the four parish First Supreme 
Court District’s population and over half of the district’s 
registered voters live in Orleans Parish. Importantly, 
Orleans Parish has a fifty-five percent black population 
and a fifty-two percent black registered voter population. 
Plaintiffs seek a division of the First District into two 
single-member districts, each to elect one Justice. Under 
the plaintiffs’ plan of division, one proposed district 
would be composed of Orleans Parish with a greater black 
population and black registered voter population than 
white. The other proposed district would be composed of 
Jefferson, Plaquemines, and St. Bernard Parishes; this 
district would have a substantially greater white popula­
tion and white registered voter population than black. It is 
particularly significant that no black person has ever been 
elected to the Louisiana Supreme Court, either from the 
First Supreme Court District or from any one of the other 
five judicial districts.



28

To support their voter dilution claim, plaintiffs cite, 
among other factors, a history of purposeful official dis­
crimination on the basis of race in Louisiana and the exist­
ence of widespread racially polarized voting in elections 
involving black and white candidates. Specifically, plain­
tiffs allege in their complaint:

Because of the official history of racial discrimination 
in Louisiana’s First Supreme Court District, the wide 
spread prevalence of racially polarized voting in the 
district, the continuing effects of past discrimination 
on the plaintiffs, the small percentage of minorities 
elected to public office in the area, the absence of any 
blacks elected to the Louisiana Supreme Court from 
the First District, and the lack of any justifiable rea­
son to continue the practice of electing two Justices 
at-large from the New Orleans area only, plaintiffs 
contend that the current election procedures for 
selecting Surpreme Court Justices from the New 
Orleans area dilutes minority voting strength and 
therefore violates the 1965 Voting Rights Act, as 
amended.

On May 1, 1987, the district court dismissed plaintiffs’ 
complaint for failure to state a claim upon which relief 
may be granted. In its opinion accompanying the dismissal 
order, the district court concluded that section 2 of the 
Voting Rights Act does not apply to the election of state 
judges. To support this conclusion, the district court relied 
primarily on the amended language in section 2 which 
states “to elect representatives of their choice.” The district 
court reasoned that since judges are not “representatives,” 
judicial elections are therefore not within the protective 
ambit of section 2. Focusing on a perceived inherent dif­
ference between representatives and judges, the district 
court stated, “[jjudges, by their very definition, do not



29

represent voters but are ‘appointed [or elected] to preside 
and administer the law.’ ” (citation omitted). The district 
court further relied on what was understood to be a lack of 
any reference to judicial elections in the legislative history 
of section 2, and on previous court decisions establishing 
that the “one person, one vote” principle does not apply to 
judicial elections. As to plaintiffs’ fourteenth and fifteenth 
amendment challenges, the district court determined that 
plaintiffs had failed to plead an intent to discriminate with 
sufficient specificity to support their constitutional claims. 
Plaintiffs appeal the district court’s dismissal of both their 
statutory and constitutional claims.

In an opinion just released, the Sixth Circuit, addressing 
a complaint that the present system of electing municipal 
judges to the Hamilton County Municipal Court in Ohio 
violates section 2, concluded that section 2 does indeed 
apply to the judiciary. Mallory v. Eyrich, No. 87-3838, 
slip op. (6th Cir. Feb. 12, 1988). Other than our district 
court, only two district courts have ruled on the coverage 
of section 2 in this context. The Mallory district court, 
subsequently reversed, concluded that section 2 does not 
extend to the judiciary. Mallory v. Eyrich, 666 F. Supp. 
1060 (S.D. Ohio 1987). The other district court, Martin v. 
Allain, 658 F. Supp. 1183 (S.D. Miss. 1987), determined 
that section 2 does apply to the judicial branch. After con­
sideration of the language of the Act itself; the policies 
behind the enactment of section 2; pertinent legislative his­
tory; previous judicial interpretations of section 5, a com­
panion section to section 2 in the Act; and the position of 
the United States Attorney General on this issue; we con­
clude that section 2 does apply to the election of state 
court judges. We therefore reverse the judgment of the 
district court.



30

II. DISCUSSION

A. The Plain Language of the Act

The Voting Rights Act was enacted by Congress in 1965 
for a broad remedial purpose —“to rid the country of 
racial discrimination in voting.” South Carolina v. Katzen- 
bach, 383 U.S. 301, 315 (1966). Since the inception of the 
Act, the Supreme Court has consistently interpreted the 
Act in a manner which affords it “the broadest possible 
scope” in combatting racial discrimination. Allen v. State 
Board of Elections, 393 U.S. 544, 565 (1969). As a result, 
the Act effectively regulates a wide range of voting prac­
tices and procedures. See United States v. Sheffield Board 
of Commissioners, 435 U.S. 110, 122-23 (1978). Referred 
to by the Supreme Court as a provision which “broadly 
prohibits the use of voting rules to abridge exercise of the 
franchise on racial grounds,” Katzenbach, 383 U.S. at 
316, section 2 of the Voting Rights Act of 1965, prior to its 
amendment in 1982, provided as follows:

No voting qualification or prerequisite to voting, or 
standard, practice, or procedure shall be imposed or 
applied by any State or political subdivision to deny 
or abridge the right of any citizen of the United States 
to vote on account of race or color, or in contraven­
tion of the guarantees set forth in section 1973b(f)(2) 
of this title.

Congress amended section 2 in 1982 in response to the 
Supreme Court’s decision in Mobile v. Bolden, 446 U.S. 
55 (1980), wherein the Court concluded that section 2 
operated to prohibit only intentional acts of discrimina­
tion by state officials. Thereafter, Congress, in disagree­
ment with the high court’s pronouncement, amended sec­
tion 2 with language providing that proof of intent is not 
required to successfully prove a section 2 violation. In­



31

stead, Congress adopted the “results” test, whereby plain­
tiffs may prevail under section 2 by demonstrating that, 
under the totality of the circumstances, a challenged elec­
tion law or procedure has the effect of denying or abridg­
ing the right to vote on the basis of race. However, while 
effecting significant change through the 1982 amend­
ments, Congress specifically retained the operative lan­
guage or original section 2 defining the section’s coverage 
- “[n]o voting qualification or prerequisite to voting or 
standard, practice, or procedure shall be imposed. . . 
Section 2, as amended in 1982, now provides:

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

(b) A violation of subsection (a) is established if, 
based on the totality of circumstances, it is shown 
that the political processes leading to nomination or 
election in the State or political subdivision are not 
equally open to participation by members of a class of 
citizens protected by subsection (a) of this section in 
that its members have less opportunity than other 
members of the electorate to participate in the politi­
cal process and to elect representatives of their choice. 
The extent to which members of a protected class 
have been elected to office in the State or political 
subdivision is one circumstance which may be consid­
ered: Provided, That nothing in this section estab­
lishes a right to have members of a protected class



32

elected in numbers equal to their proportion in the 
population.

Section 14(c)(1), which defines “voting” and “vote” for 
purposes of the Act, sets forth the types of election prac­
tices and elections which are encompassed within the regu­
latory sphere of the Act. Section 14(c)(1) states,

The terms “vote” of “voting” shall include all action 
necessary to make a vote effective in any primary, 
special, or general election, including, but not limited 
to, registration, listing pursuant to this subchapter or 
other action required by law prerequisite to voting, 
casting a ballot, and having such ballot counted prop­
erly and included in the appropriate totals of votes 
cast with respect to candidates for public or party of­
fice and propositions for which votes are received in 
an election.

Clearly, judges are “candidates for public or party office” 
elected in a primary, special, or general election; there­
fore, section 2, by its express terms, extends to state judi­
cial elections. This truly is the only construction consistent 
with the plain language of the Act.1

In Dillard v. Crenshaw County, 831 F. 2d 246 (11th Cir. 
1987), the Eleventh Circuit addressed the issue of the 
coverage of section 2. In Dillard, the court rejected the 
defendant county’s implicit argument that the election of 
an at-large chairperson of a county commission was not 
covered by section 2 due to that position’s administrative, 
as opposed to legislative, character. The Dillard court 
stated,

Nowhere in the language of Section 2 nor in the leg­
islative history does Congress condition the applica­

1 Evidence of congressional intent to reach all types of elections, 
regardless of who or what is the object of the vote, is the fact that 
votes on propositions are within the purview of the Act. Section 
14(c)(1).



33

bility of Section 2 on the function performed by an 
elected official. The language is only and uncompro­
misingly premised on the face of nomination or elec­
tion. Thus, on the face of Section 2 it is irrelevant that 
the chairperson performs only administrative and 
executive duties. It is only relevant that Calhoun 
County has expressed an interest in retaining the post 
as an electoral position. Once a post is open to the 
electorate, and if it is shown that the context of that 
election creates a discriminatory but corrigible elec­
tion practice, it must be open in a way that allows 
racial groups to participate equally.

Id. at 250.
The State asserts that by amending section 2 in 1982, 

Congress intentionally grafted a limitation on section 
14(c)(1) that “candidates for public or party office” only 
include “representatives”; since judges are not “representa­
tives,” state judicial elections are exempt from the protec­
tive measures of the Act. In making this contention, the 
State, as well as the district court, points to the distinctive 
functions of judges as opposed to other elected officials. 
Specifically, the district court, citing Wells v. Edwards, 
347 F. Supp. 453 (M.D. La. 1972), affd , 409 U.S. 1095 
(1973), notes that the “one person, one vote” principle of 
apportionment has been held not to apply to the judicial 
branch of government on the basis of this distinction. See 
also Voter Information Project v. City of Baton Rouge, 
612 F.2d 208 (5th Cir. 1980). In Wells, the plaintiff sought 
reapportionment of the Louisiana Supreme Court Judicial 
Districts in accordance with one person, one vote princi­
ples. The Wells court rejected the plaintiffs claim, reason­
ing that the “primary purpose of one-man, one-vote 
apportionment is to make sure that each official member 
of an elected body speaks for approximately the same 
number of constituents.” Wells, 347 F. Supp. at 455. The 
district court then concluded that since judges do not rep­



34

resent, but instead serve people, the rationale behind one 
person, one vote apportionment of preserving a represen­
tative form of government is not relevant to the judiciary. 
Id.

In Voter Information, this Court, bound by the holding 
in Wells due to the Supreme Court’s summary affirmance 
of that decision, rejected the plaintiffs’ claim for reappor­
tionment of judicial districts on the one person, one vote 
theory. Voter Information, 612 F.2d at 211. However, the 
Voter Information Court then emphasized that the plain­
tiffs further asserted claims of racial discrimination under 
the fifteenth amendment which resulted in the dilution of 
black voting strength. Recognizing the difference between 
the two types of claims, the Court expressly rejected the 
applicability of the Wells decision to claims of racial dis­
crimination, stating,

[T]he various ‘one man one vote’ cases involving 
Judges make clear that they do not involve claims of 
race discrimination as such.

To hold that a system designed to dilute the voting 
strength of black citizens and prevent the election of 
blacks as Judges is immune from attack would be to 
ignore both the language and purpose of the Four­
teenth and Fifteenth Amendments. The Supreme 
Court has frequently recognized that election schemes 
not otherwise subject to attack may be unconstitu­
tional when designed and operated to discriminate 
against racial minorities.

Id. (footnote omitted).
We, like the Voter Information Court, are bound by the 

Supreme Court’s affirmance of Wells and its holding that 
the one person, one vote principle does not extend to the 
judicial branch of government. However, the district 
court’s reliance on Wells in the instant case is misplaced as



35

we are not concerned with a complaint seeking reappor­
tionment of judicial districts on the basis of population 
deviations between districts. Rather, the complaint in the 
instant case involves claims of racial discrimination result­
ing in vote dilution under section 2 of the Voting Rights 
Act and the fourteenth and fifteenth amendments. There­
fore, the district court erred to the extent it relied on Wells 
in support of its conclusion that section 2 does not apply 
to the judiciary.2

The Voting Rights Act was enacted, in part, to facilitate 
the enforcement of the guarantees afforded by the Consti­
tution. Indeed, section 2, as originally written, no more 
than elaborated on the fifteenth amendment, providing 
statutory protection consonant with that of the constitu­
tional guarantee. Mobile, 446 U.S. at 60. Therefore, the 
reasoning utilized by the Court in Voter Information to 
extend the protection from racial discrimination provided 
by the fourteenth and fifteenth amendments to the 
judiciary compels a conclusion by this Court that the pro­
tection from racial discrimination provided by section 2 
likewise extends to state judicial elections.

It is difficult, if not impossible, for this Court to con­
ceive of Congress, in an express attempt to expand the

2 The distinction between equal protection principles applicable to 
claims based on one person, one vote principles of apportionment and 
those based on racial discrimination is not without prior Supreme 
Court precedent. See White v. Regester, 412 U.S. 755 (Court reversed 
decision of district court that reapportionment plan for Texas House 
of Representatives violated one person, one vote principles, but af­
firmed the district court’s conclusion that a particular portion of the 
plan unlawfully diluted minority voting strength.). See also Gaffney v. 
Cummings. 412 U.S. 735, 751 (1973) (“A districting plan may create 
multimember districts perfectly acceptable under equal population 
standards, but invidiously discriminatory because they are employed 
‘to minimize or cancel out the voting strength of racial or political ele­
ments of the voting population.’ ”) (citations omitted).



36

coverage of the Voting Rights Act, to have in fact 
amended the Act in a manner affording minorities less 
protection from racial discrimination than that provided 
by the Constitution. We conclude today that section 2 as 
amended in 1982, provides protection commensurate with 
the fourteenth and fifteenth amendments; therefore, in 
accordance with this Court’s decision in Voter Informa­
tion, section 2 necessarily embraced judicial elections 
within its scope. Any other construction of section 2 
would be wholly inconsistent with the plain language of 
the Act and the express purpose which Congress sought to 
attain in amending section 2; that is, to expand the protec­
tion of the Act.

B. The Legislative History of Section 2

Our conclusion today finds further support in the legis­
lative history of the 1982 amendments to section 2. An 
overriding principle which guides any analysis of the legis­
lative history behind the Voting Rights Act is that the Act 
must be interpreted in a broad and comprehensive manner 
in accordance with congressional intent to combat racial 
discrimination of any kind in all voting practices and pro­
cedures. Thus, in the absence of any legislative history 
warranting a conclusion that section 2 does not apply to 
state judicial elections, the only acceptable interpretation 
of the Act is that such elections are so covered. See Shef­
field, 435 U.S. 110.3

3 In Sheffield, the Supreme Court declined to adopt a narrowing 
construction of § 5 and the preclearance requirements of the Act 
whereby § 5 would cover only counties and political units that conduct 
voter registration. “[I]n view of the structure of the Act, it would be 
unthinkable to adopt the District Court’s construction unless there 
were persuasive evidence either that § 5 was intended to apply only to 
changes affecting the registration process or that Congress clearly 
manifested an intention to restrict § 5 coverage. . . .” 435 U.S. at 122.



37

The Senate Report states that amended [section] 2 
was designed to restore the “results test” —the legal 
standard that governed voting discrimination cases 
prior to our decision in Mobile v. Bolden. . . . Under 
the “results test,” plaintiffs are not required to dem­
onstrate that the challenged electoral law or structure 
was designed or maintained for a discriminatory pur­
pose.

Thornburg v. Gingles,___ U .S .____ , 106 S. Ct. 2752 ,
2763 n.8 (1986) (citations omitted). In amending section 2, 
Congress preserved the operative language of subsection 
(a) defining the coverage of the Act and merely added sub­
section (b) to adopt the “results test” for proving a viola­
tion of section 2. In fact, the language added by Congress 
in subsection (b) —“to participate in the political process 
and to elect representatives of their choice” —is derived 
almost verbatim from the Supreme Court’s standard 
governing claims of vote dilution on the basis of race set 
forth in White v. Regester, 412 U.S. 755 (1973), prior to 
Mobile v. Bolden. See S. Rep. No. 417, 97th Cong., 2d 
Sess. 27, reprinted in 1982 U.S. Code Cong. & Admin. 
News 177, 205 (Congress’ stated purpose in adding subsec­
tion (b) was to “embodfy] the test laid down by the 
Supreme Court in White.”). In White, the Court stated 
“[t]he plaintiffs’ burden is to produce evidence . . . that 
[the minority groups’] members had less opportunity than 
did other residents in the district to participate in the 
political processes and to elect legislators of their choice.” 
Id. at 766.4

As previously noted, Congress amended section 2 in
direct response to the Supreme Court’s decision in Mobile
v. Bolden,

4 It might be argued that since the Supreme Court used the term 
“legislators” and Congress chose “representatives,” Congress thereby 
rejected language limiting the coverage of § 2 to legislators. The better



38

Further, contrary to the statement in the district court’s 
opinion that the legislative history of the 1982 amend­
ments does not address the issue of section 2 applying to 
the judiciary, Senator Orrin Hatch, in comments con­
tained in the Senate Report, stated that the term 
“ ‘political subdivision’ encompasses all governmental 
units, including city and county councils, school boards, 
judicial districts, utility districts, as well as state legisla­
tures.” S. Rep. 417 at 151 (emphasis added). While the 
above statement by Senator Hatch is not a definitive de­
scription of the scope of the Act, we believe the statement 
provides persuasive evidence of congressional understand­
ing and belief that section 2 applies to the judiciary, 
especially since the Report is silent as to any dissent by 
senators from Senator Hatch’s description.

Additionally, the Senate and House hearings on the 
various bills regarding the extension of the Voting Rights 
Act in 1982 are replete with references to the election of 
judicial officials under the Act. The references primarily 
occur in the context of statistics presented to Congress in­
dicating advances or setbacks of minorities under the Act. 
The statistics chart the election of minorities to various 
elected positions, including judges. See Extension o f the 
Voting Rights Act: Hearings on H.R. 1407, H.R. 1731, 
H.R. 2942, and H.R. 3112, H.R. 3198, H.R. 3473 and 
H.R. 3498 Before the Subcomm. on Civil and Constitu­
tional Rights o f the House Comm, on the Judiciary, 97th 
Cong. 1st Sess. 38, 193, 239, 280, 503, 574, 804, 937, 1182, 
1188, 1515, 1528, 1535, 1745, 1839, 2647 (1981); Voting 
Rights Act: Hearings on S. 53, S. 1761, S. 1975, S. 1992, 
and H.R. 3112 Before the Subcomm. on the Constitution
analysis is that Congress did not use the term “representatives” with a 
specific intent to limit the section’s application to any elected officials. 
Had Congress wished to do so, it could have easily promulgated ex­
press language to effectuate that intent.



39

o f the Senate Comm, on the Judiciary, 97th Cong. 2d 
Sess. 669, 748, 788-89 (1982). Once again, the legislative 
history does not reveal any dissent from the proposition 
that such statistics were properly considered by Congress 
in amending the Act. Finally, throughout the Senate 
Report on the 1982 amendments to section 2, Congress 
uses the terms “officials,” “candidates,” and “representa­
tives” interchangeably when explaining the meaning and 
purpose of the Act. This lack of any consistent use of the 
term “representatives” indicates that Congress did not in­
tentionally choose that term in an effort to exclude certain 
types of elected officials from the coverage of the Act.

In contrast to the examples of legislative history which 
plaintiffs cite in support of their position that section 2 ap­
plies to state judicial elections, the State offers no convinc­
ing evidence in the legislative history contrary to the plain­
tiffs interpretation of the Act. Instead, the State relies pri­
marily on the plain meaning of the word “representative” 
to assert that judges are exempt from the Act. The State’s 
position is untenable.5 Judges, while not “representatives”

5 The State asserts that the Dole compromise prohibiting propor­
tional representation evidences congressional intent that § 2 only ap­
ply to legislative officials. Proportional representation, the State con­
tinues, is relevant to the legislature; therefore, Congress intended § 2 
to apply only to the election of legislators. However, what belies the 
State’s argument is that proportional representation may occur in any 
election wherein the people elect individuals to comprise a group. For 
instance, Louisiana elects seven Justices to comprise the Supreme 
Court. Certainly, the prohibition on proportional representation in 
§ 2(b) applies in such a situation to prevent a legal requirement that 
the number of blacks on the Louisiana Supreme Court correspond to 
the percentage of blacks in the Louisiana population. Moreover, the 
State conceded at oral argument that executive officials could be 
covered by § 2, underlying their assertion that congressional fear of 
proportional representation evidenced intent that § 2 only apply to the 
legislature.



40

in the traditional sense, do indeed reflect the sentiment of 
the majority of the people as to the individuals they choose 
to entrust with the responsibility of administering the law. 
As the district court held in Martin v. Allain:

[Jjudges do not “represent” those who elect them in 
the same context as legislators represent their con­
stituents. The use of the word “representatives” in 
Section 2 is not restricted to legislative representatives 
but denotes anyone selected or chosen by popular 
election from among a field of candidates to fill an 
office, including judges.

658 F. Supp. at 1200.

C. Section 5 and Section 2

The plaintiffs further support their position that judicial 
elections are covered by section 2 by citing to the recent 
case of Haith v. Martin, 618 F. Supp. 410 (E.D.N.C.
1985), affd, ___  U.S. ___ , 106 S. Ct. 3268 (1986),
wherein the district court held that judicial elections are 
covered by section 5 and the preclearance requirements of 
the Act. In Haith, the defendant state officials sought to 
exempt the election of superior court judges in North 
Carolina from the preclearance requirements of section 5 
by relying on the cases holding that the one person, one 
vote principle does not apply to the judicial branch of 
government. In an analysis strikingly similar to that em­
ployed by the Court in Voter Information, the district 
court in Haith rejected the defendants’ arguments as mis­
placed due to the fact that the plaintiffs claim was one 
based on discrimination, not malapportionment. The 
Haith court stated “[a]s can be seen, the Act applies to all 
voting without any limitation as to who, or what, is the 
object of the vote.” 618 F. Supp. at 413. See also Kirksey 
v. Allain, 635 F. Supp. 347, 349 (S.D. Miss. 1986) (“Given



41

the expansive interpretation of the Voting Rights Act and 
§ 5, this Court is compelled to agree with the pronounce­
ment in Haith v. Martin” that section 5 applies to the 
judiciary.).

In the instant case, the State argues that the Supreme 
Court’s affirmance of Haith does not compel a conclusion 
that section 2 applies to judicial elections as section 5 in­
volves the mechanics of voting, while section 2 involves 
the fundamental right to vote for those who govern. We 
reject this asserted distinction. If, for instance, Louisiana 
were to enact an election statute providing that no blacks 
would be able to vote in elections for Louisiana Supreme 
Court Justices, it is undisputed, after Haith, that such a 
statute would be invalidated under the preclearance re­
quirements of section 5. To hold, as the State asserts, that 
such an egregious statute would not be subject to the re­
quirements of section 2 as well would lead to the incon­
gruous result that, while Louisiana could not adopt such a 
statute in 1988, if that statute were in effect prior to 1982, 
minorities could only challenge the statute under the Con­
stitution and not the Voting Rights Act. Such a result 
would be totally inconsistent with the broad remedial pur­
pose of the Act. Moreover, section 5 and section 2, virtual­
ly companion sections, operate in tandem to prohibit dis­
criminatory practices in voting, whether those practices 
originate in the past, present, or future. Section 5 contains 
virtually identical language defining its scope to that of 
section 2 - “any voting qualification or prerequisite to 
voting, or standard, practice, or procedure with respect to 
voting. . . .” Therefore, statutory construction, consist­
ency, and practicality point inexorably to the conclusion 
that if section 5 applies to the judiciary, section 2 must 
also apply to the judiciary. See Pampanga Mills v. Trini­
dad, 279 U.S. 211, 217-218 (1929).



42

D. The Attorney General's Interpretation

In United States v. Sheffield Board of Commissioners, 
435 U.S. at 131, the Supreme Court concluded that the 
contemporaneous construction of the Act by the Attorney 
General is persuasive evidence of the original congres­
sional understanding of the Act, “especially in light of the 
extensive role the Attorney General played in drafting the 
statute and explaining its operation to Congress.” Since its 
inception, the Attorney General has consistently sup­
ported an expansive, not restrictive, construction of the 
Act. Testifying at congressional hearings prior to the 
passage of the Act in 1965, the Attorney General stated 
that “every election in which registered voters are per­
mitted to vote would be covered” by the Act. Voting 
Rights: Hearing Before Subcomm. No. 5 o f the House 
Judiciary Comm., 89th Cong. 1st Sess. (1965), at 21. See 
also Allen, 393 U.S. at 566-67. Continuing the trend of 
broadly interpreting the Act to further its remedial pur­
pose, the Attorney General has filed an amicus curiae brief 
in the instant case in which he maintains that the “plain 
meaning of [the language in section 2] reaches all elec­
tions, including judicial elections” and that the preexisting 
coverage of section 2 was not limited by the 1982 congres­
sional amendments. This construction of the Act by the 
Attorney General further bolsters our holding today that 
section 2 does apply to state judicial elections.

E. Plaintiffs' Constitutional Claims

Plaintiffs also appeal the district court’s dismissal of 
their constitutional claims for failure to plead specific dis­
criminatory intent. In their complaint, plaintiffs allege, in 
pertinent part:

The defendant’s actions are in violation of the Four­
teenth and Fifteenth amendments to the United States



43

Constitution and 42 U.S.C. Section 1983 in that the 
purposes and effect of their actions is to dilute, mini­
mize, and cancel the voting strength of the plaintiffs.

In the instant case, the district court was correct in con­
cluding that discriminatory purpose is a prerequisite to 
recovery under the fourteenth and fifteenth amendments. 
See Washington v. Davis, 426 U.S. 229, 239-241 (1976). 
However, the district court erred in finding that plaintiffs’ 
complaint did not establish a theory of “discriminatory in­
tent.” In Voter Information, this Court held that if “plain­
tiffs can prove that the purpose and operative effect of 
such purpose” of the challenged electoral practices is to 
dilute minority voting strength, the plaintiffs are entitled 
to some form of relief. Voter Information, 612 F.2d at 
212. When compared with the complaint in Voter Infor­
mation, the plaintiffs’ complaint in the instant case is suf­
ficient to raise a claim of racial discrimination under the 
fourteenth and fifteenth amendments.6

III. CONCLUSION

Where racial discrimination exists, it is not confined to 
elections for legislative and executive officials; in such in­

6 In Voter Information, the plaintiffs’ complaint alleged,
25. The sole purpose of the present at-large system of election 

of City Judge is to ensure that the white majority will continue to 
elect all white persons for the office of City Judge.

26. The present at-large system was instituted when “Division 
B” was created as a reaction to increasing black voter registration 
and for the express purpose of diluting and minimizing the effect 
of the increased black vote.

27. In Baton Rouge, there is a continuing history of “bloc- 
voting” under which when a black candidate opposes a white can­
didate, the white majority consistently casts its votes for the white 
candidate, irrespective of relative qualifications.

612 F.2d at 211.



44

stance, it extends throughout the entire electoral spectrum. 
Minorities may not be prevented from using section 2 in 
their efforts to combat racial discrimination in the election 
of state judges; a contrary result would prohibit minorities 
from achieving an effective voice in choosing those in­
dividuals society elects to administer and interpret the law. 
The right to vote, the right to an effective voice in our 
society, cannot be impaired on the basis of race in any in­
stance wherein the will of the majority is expressed by 
popular vote.

For the reasons set forth above, we reverse the judgment 
of the district court and remand for proceedings not in­
consistent with this opinion.

REVERSED AND REMANDED



45

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF LOUISIANA

Civil Action No. 86-4075 
Section A

R onald  C h isom , et a l ., pla in tiffs ,

U nited  States of A m erica , pla in tiff-intervenor ,

v.

C harles E . R o em er , G overnor of the  State  of 
L o u isia n a ; W alter  M cKe it h e n , Secretary  of State of 
the  State  of L o u isia n a ; J erry F o w ler , C ommissioner  
of E lections of the  State  of L o uisiana , d efendants.*

COMPLAINT IN INTERVENTION

The United States of America alleges:
1. The Attorney General files this complaint in inter­

vention, on behalf of the United States, pursuant to Title 
IX of the Civil Rights Act of 1964, 42 U.S.C. 2000h-2, 
Sections 2 and 12(d) of the Voting Rights Act of 1965, 42 
U.S.C. 1973 and 1973j(d) and pursuant to 28 U.S.C. 2201. 
This lawsuit is filed to seek redress for a denial of “equal 
protection of the laws . . .  on account of race, color, re­

* At the time the original complaint in this matter was filed Edwin 
Edwards was Governor of the State of Louisiana and James H. Brown 
was Secretary of State. Pursuant to Rule 25, Federal Rules of Civil 
Procedure, the current governor and secretary of state are substituted 
automatically as parties.



46

ligion, sex or national origin” and to otherwise enforce 
rights guaranteed by the Fourteenth and Fifteenth Amend­
ments. 42 U.S.C. 2000h-2.

2. The Attorney General has certified that this case is 
of “general public importance,” within the meaning of 
Title IX. 42 U.S.C. 2000h-2, The certificate of the At­
torney General is appended to this complaint and is incor­
porated herein.

3. This Court has jurisdiction of this action pursuant 
to 42 U.S.C. 1793j(f) and 28 U.S.C. 1345.

4. Defendant Charles E. Roemer is the Governor of 
the State of Louisiana and is responsible under the state’s 
constitution for the execution of the laws of the state in­
cluding those laws affecting the election of members of the 
Louisiana Supreme Court. Defendant Walter McKeithen 
is the Secretary of State of the State of Louisiana and, pur­
suant to the state constitution, is the chief election officer 
of the state. Defendant Jerry Fowler is the Commissioner 
of Elections of the State of Louisiana and is charged with 
the responsibility to administer various election laws in­
cluding those related to voter registration and the eligibili­
ty to vote in elections for the supreme court. Each defend­
ant is sued in his official capacity.

5. According to the 1980 Census, the State of Louisi­
ana had a population of 4,205,900 of whom 1,238,241 
(29.44%) were black persons. The census further indicated 
that there are 2,875,432 persons eighteen (18) years of age 
and older (voting age population) of whom 766,187 
(26.44) were black persons.

6. Pursuant to state law, the Louisiana Supreme Court 
consists of seven members. The members of the court are 
elected in public elections and serve terms of ten years. For 
purposes of electing supreme court justices, the state is 
divided into five single-member election districts and one 
multi-member election district; the multi-member district



47

is labeled the First Supreme Court District and elects two 
members to the court. The First Supreme Court District 
consists of Jefferson, Orleans, Plaquemines and St. Ber­
nard Parishes.

7. Orleans Parish contains the largest population of 
any parish in the State of Louisiana and also the largest 
number of black citizens in any parish. A majority of 
those persons residing in Orleans Parish are black persons. 
The multi-member supreme court district used in this area 
of the state, however, combines majority black Orleans 
Parish with three other, heavily-white, parishes in such a 
manner that black citizens comprise approximately one 
third of the total population of the district and approxi­
mately thirty percent of the voting age population of the 
district.

8. Elections, including those for judicial offices, con­
ducted in the parishes which constitute the First District 
are characterized by a pattern of racially polarized voting.

9. The State of Louisiana has a history of official dis­
crimination that has touched the right of black citizens to 
register, to vote and otherwise to participate in the politi­
cal process.

10. Black citizens who reside in the First District bear 
the effects of discrimination in education, employment 
and health, which hinders their ability to participate in the 
political process.

11. If the members of the supreme court were elected 
pursuant to a plan utilizing single-member district ex­
clusively, it is likely that black citizens residing in the 
Orleans Parish area would constitute the majority of the 
citizens residing in one district.

12. No valid state interest is served by the incorpora­
tion of a multi-member district into the otherwise single­
member district election plan, particularly in light of the 
disparate racial impact of the multi-member feature.



48

13. The incorporation of the multi-member district in 
the State of Louisiana’s method for electing members of 
its supreme court is a standard, practice or procedure 
which, within the context of the totality of the circum­
stances described in the preceding paragraphs, results in a 
denial or abridgment of the right to vote on account of 
race or color in violation of Section 2 of the Voting Rights 
Act, 42 U.S.C. 1973.

WHEREFORE, the United States prays that the Court 
enter a judgment:

a) Declaring that the incorporation of the multi­
member district in the election plan for the Louisi­
ana Supreme Court is violative of Section 2 of the 
Voting Rights Act, 42 U.S.C. 1973;

b) Enjoining the defendants, their agents and suc­
cessors in office, and all persons acting in concert 
with them from administering, implementing or 
conducting any election for members of the Louisi­
ana Supreme Court in the multi-member district 
presently in the election plan;

c) Ordering the defendants to devise a new election 
plan which corrects the multi-member district viola­
tion in a manner consistent with federal law and de­
velop a schedule to implement the new plan and to 
obtain the necessary preclearance, pursuant to Sec­
tion 5 of the Voting Rights Act, 42 U.S.C. 1973c, of 
the new plan and implementation schedule.

Plaintiff further prays that the Court grant such addi­
tional relief as the interests of justice may require, together 
with the costs and disbursements of this action.

EDWIN MEESE III 
Attorney General

By: /s /  Wm, Bradford Reynolds________
W m . B radford  R eynolds 
Assistant Attorney General 
Civil Rights Division



49

/ s /  John Volz 
J ohn  Volz

United States Attorney

/%/ Gerald W. Jones___________
G erald  W . J ones 
Attorney, Voting Section 
Civil Rights Division 
Department of Justice 
P.O. Box 66128 
Washington, D.C. 20035-6128

/s /  Robert S. Berman (T.A.) 
R obert S. Berman 
Attorney, Voting Section 
Civil Rights Division 
Department of Justice 
P.O. Box 66128 
Washington, D.C. 20035-6128 
(202) 724-3100



50

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF LOUISIANA

Civil Action No. 86-4075 
Section A

R onald  C h iso m , et a l ., pl a in tiffs ,

U nited  States of A m erica , a pplica nt  for intervention ,

v.

C harles E . R o em er , G overnor  of the  State  of 
L o u isia n a ; W alter  M cKe it h e n , Secretary  of State  of 
the  State of L o u isia n a ; J erry F o w ler , C ommissioner  

of E lections of the  State  of L o uisia n a , defen da nts.

CERTIFICATE OF THE ATTORNEY GENERAL

I hereby certify that the case of Ronald Chisom, et al. v. 
Charles E. Roemer, et al., Civil Action No. 86-4075 (E.D. 
La.), which seeks relief from an alleged denial of equal 
protection of the laws based on race, color, religion, sex, 
or national origin, is of general public importance within 
the meaning of Section 902 of the Civil Rights Act of 1964.

This certificate is made pursuant to the provisions of 
Section 902 of the Civil Rights Act of 1964, 42 U.S.C. 
2000h-2, and in support of the complaint to which it is at­
tached.

Signed this 4th day of August 1988.
/s /  Edwin Meese III

E dwin  M eese III 
Attorney General



51

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

CIVIL ACTION NUMBER 86-4075

R onald  C h isom , M arie  Bookm an , W alter  W illard , 
M arc  M o r ia l , L ouisiana  Voter  R egistration /  
E ducation  C rusade, and  H enry A . D illo n , III

PLAINTIFFS

U nited  States of A m erica , plaintiffs-intervenor

versus

Buddy R o em er , in his capacity  as G overnor of 
th e  State  of L o uisia n a ; F ox M cK e ith en , in his 

capacity  as Secretary  of the  State  of L ouisiana ; and 
J erry M . F o w ler , in his capacity  as C ommissioner  

of E lections of the  State of L ouisiana  
defendants

Section A 
Magistrate 6

CLASS ACTION 
ANSWER

ANSWER TO COMPLAINT 
[as last amended on September 30, 1986]

I.

The first sentence of Paragraph I P r e lim in a r y  S ta te m e n t
needs no answer for it is merely descriptive of the parties



52

plaintiff. The second sentence of Paragraph I Preliminary 
Statement, which reads as follows:

Plaintiffs contend that the present system of electing 
judges, whereby the parish of Orleans, St. Bernard, 
Plaquemines, and Jefferson elect two Justices to the 
Louisiana Supreme Court at-large, is a violation of 
the 1965 Voting Rights Act, as amended, 42 U.S.C. 
Section 1973 because it dilutes the voting strength of 
plaintiffs,

is denied.

II.

Except for the last paragraph, the allegations of 
Paragraph II Jurisdiction need no answer for they are 
merely descriptive of the statutory grounds under which 
this action has been brought. As to the last sentence of 
Paragraph II Jurisdiction which reads:

Plaintiffs’ claims under the Voting Rights Act and 
under the Fourteenth and Fifteenth Amendments to 
the U.S. Constitution must be determined by a dis­
trict court of three judges pursuant to 28 U.S.C. Sect. 
2284 (a),

no answer is necessary, because this Court has already 
ruled against the assignment of this case to a three-judge 
court.

III.

The allegations of Paragraph III Parties need no answer 
except to show that the organizational plaintiff cannot be 
representative of the class of Orleans Parish black regis­
tered voters and further except to show that “Buddy 
Roemer” should be substituted for “Edwin Edwards” and 
“Mr. Roemer” for “Mr. Edwards.” “Fox McKeithen”



53

should also be substituted for “James H. Browns,” (sic)
and “Mr. McKeithen” for “Mr. Brown.”

IV.

Substantially all of the allegations of Paragraph IV 
Class Action Allegations need no answer for this Court 
has already made a class action certification; however, the 
organizational corporate plaintiff is not a registered voter 
and, therefore, is neither a member, nor representative, of 
the class.

v.
The allegations of Paragraph V Facts reflected in the 

first eight unnumbered sub-paragraphs are admitted. 
Answering the last unnumbered sub-paragraph of Para­
graph V Facts, which reads as follows:

Because of the official history of racial discrimina­
tion in Louisiana’s First Supreme Court District, the 
wide spread prevalence of racially polarized voting in 
the district, the continuing effects of past discrimina­
tion on the plaintiffs, the small percentage of minori­
ties elected to public office in the area, the absence of 
any blacks elected to the Louisiana Supreme Court 
from the First District, and the lack of any justifiable 
reason to continue the practice of electing two 
Justices at-large from the New Orleans area only, 
plaintiffs contend that the current election procedures 
for selecting Supreme Court Justices from the New 
Orleans area dilutes minority voting strength and 
therefore violates the 1966 Voting Rights Act, as 
amended,

defendants deny each and every, all and singular, general­
ly and specifically, the allegations therein contained, and 
each and every part thereof.



54

VI.

As to the allegations of Paragraph VI Causes o f Action, 
defendants deny each and every, all and singular, general­
ly and specifically, the allegations therein contained, and 
each and every part thereof.

VII.

As to the allegations of Paragraph VII Equity, defen­
dants deny each and every, all and singular, generally and 
specifically, the allegations therein contained, and each 
and every part thereof.

FOR FURTHER AND SEPARATE AFFIRMATIVE 
DEFENSES, DEFENDANTS SAY:

A.
First Separate Affirmative Defense

The complaint, and as amended, fails to state a claim 
against defendants upon which relief can be granted.

B.
Second Separate Affirmative Defense

It was not the intention of Congress, either expressed or 
implied, that a state court judiciary selection system be 
subject to the Voting Rights Act and, therefore, the 
Voting Rights Act is not applicable in this case.

C.
Third Separate Affirmative Defense

At all times pertinent herein plaintiffs [with the excep­
tion of the corporate plaintiff] and the Orleans black 
voters constituting the class have had an equal opportunity 
to participate in Louisiana’s electoral judicial selection 
system and are, therefore, not entitled to any relief herein.



55

D,
Fourth Separate Affirmative Defense

The factual findings of Major v. Treen, 574 F. Supp. 
325 (E.D. La. 1983), are not reflective of current condi­
tions in Orleans Parish as they exist and have existed at all 
times pertinent herein.

E.
Fifth Separate Affirmative Defense

To assign one justice to Orleans Parish alone would give 
Orleans a disproportionate advantage over the remaining 
Parishes of Louisiana.

F.
Sixth Separate Affirmative Defense

As it relates to judicial elections, there is no dilution in 
Orleans black voter participation.

G.
Seventh Separate Affirmative Defense

If the Voting Rights Act is applied to the judiciary, then 
such application is violative of the Tenth, Fourteenth and 
Fifteenth Amendments to the United States Constitution.

H.
Eighth Separate Affirmative Defense

The statutes and laws concerning the Louisiana judicial 
selection electoral system are not, in whole or in part, pro­
ducts of racially-discriminatory intent and thus violative 
of the Fourteenth and Fifteenth Amendments to the 
United States Constitution. Louisiana first introduced its 
judicial selection system in its 1852 Constitution, which 
predated the Fourteenth Amendment [ratified on July 21,



56

1868] by fifteen years and the Fifteenth Amendment [rati­
fied on February 3, 1870 or February 17, 1870 depending 
on the effectiveness of New York’s withdrawal of its 
ratification] by seventeen years. The Parishes of Orleans, 
St. Bernard, Plaquemines, and Jefferson have been to­
gether and, as such, have had two justices on the Louisi­
ana Supreme Court since Louisiana’s 1879 Constitution.

I.
Ninth Separate Affirmative Defense

By the creation of two districts, one for Orleans Parish 
and one for the Parishes of St. Bernard, Plaquemines, and 
Jefferson, so as to create a “black district” for a black can­
didate and a “white district” for a white candidate, racially 
safe boroughs are created for candidates. By this means 
two impotent minorities are created, thereby resulting in 
their disenfranchment [sic] for all practical purposes. As 
the numbers are alleged in plaintiffs’ complaint, as amend­
ed, these disenfranchised minorities will consist of 49.16% 
of the total registered voters in the current First Supreme 
Court District. Thus, it is to the candidates and not the 
voters to whom relief is afforded.

J.
Tenth Separate Affirmative Defense

Judges, unlike representatives, embody within them­
selves the full judicial power of the state. A judge has but 
one constituent, the lady who is blindfolded and carries 
both a shield and sword.

K.
Eleventh Separate A ffirmative Defense

If vote dilution is found, plaintiffs suggested limitation 
of a remedy, i.e., split electoral districts, is constitutional­



57

ly impermissible for the State of Louisiana, through its bi­
cameral legislature, has a vested right to consider an en­
tirely new electoral districting scheme, as well as either an 
appointed judiciary, as provided for in its Constitutions of 
1812, 1845, 1864, 1878, and 1898, or a merit selection 
plan.

L.
Twelfth Separate Affirmative Defense

Louisiana’s 1974 Constitution, which, in pertinent part, 
provides for the judicial selection system here under at­
tack, was precleared by the Justice Department of the 
United States of American on November 26, 1974 [thus 
after the adoption of the Voting Rights Act] except for Ar­
ticle VIII (10 B), which provision was subsequently 
precleared on June 6, 1983 [thus after the 1982 amend­
ment to the Voting Rights Act],

M.
Thirteenth Separate Affirmative Defense

A requirement that Louisiana must gain preclearance of 
any judicial selection method through the Justice Depart­
ment of the United States of America, an intervenor on 
the plaintiffs’ side of this case is not judicially permissible 
for the Justice Department would thereby sit in the con­
flicting position as the final arbitrator of the matter when 
its avowed position in this litigation might have been ju­
dicially disapproved as this case proceeds to final judg­
ment.

N.
Fourteenth Separate Affirmative Defense

Since most other states, where violations occur, may 
alter their judicial selection system without interference



58

from the Justice Department of the United States of 
America, Louisiana would not be on the same equal 
footing with these other states and, therefore, the Voting 
Rights Act, as written, and applied, in this regard violates 
the United States Constitution.

WHEREFORE, foregoing premises considered, upon 
hearing had, the demands of the plaintiffs be, and the 
same should be, rejected at their cost.

W illiam  J. G u ste , Jr.
ATTORNEY GENERAL 

Louisiana Department of Justice 
234 Loyola Avenue, 7th Floor 
New Orleans, Louisiana 70112 

(504) 568-5575

M. T ruman  W ood w ard , J r .
909 Poydras Street 

Suite 2300
New Orleans, Louisiana 70130 

(504) 569-7100

A. R. C hristovich  
2300 Pan American Life Center

601 Poydras Street 
New Orleans, Louisiana 70130 

(504) 561-5700

Blake G. A rata 
201 St. Charles Avenue 

New Orleans, Louisiana 70130 
(504) 582-1111



59

M oise W . D ennery 
601 Poydras Street 

New Orleans, Louisiana 70130 
(504) 586-1241

By /s /  Robert G. Pugh 
R obert G. P ugh  

Lead Counsel 
330 Marshall Street 

Suite 1200
Shreveport, Louisiana 71101-3051 

(318) 227-2270

SPECIAL ASSISTANT ATTORNEYS GENERAL



60

IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF LOUISIANA

Civil Action No. 86-4075 
Section A

R onald  C h iso m , et a l ., plaintiffs 

U nited  States o f  A m erica , intervenor

versus

E dwin E dw ards, et a l .

DEFENDANTS’ ANSWER TO COMPLAINT IN INTERVENTION

Now into Court, through undersigned counsel, come 
the defendants, who, for their answer to the Complaint in 
Intervention, admit, deny and allege as follows:

1.

The allegations of paragraph 1 need no answer for they 
are merely descriptive of the legal authority to which 
reference is made.

2 .

The allegations of paragraph 2 are admitted.

3.
The allegations of paragraph 3 are admitted.



61

4.
The allegations of paragraph 4 are admitted.

5.
The allegations of paragraph 5 are admitted.

6 .

The allegations of paragraph 6 are admitted.

7.
Defendants admit the first two sentences of paragraph 

7, but deny the remaining sentence of paragraph 7.

The allegations of paragraph 8 are denied.

9.
The allegations of paragraph 9 are denied. Further 

answering, defendants show there has been no official 
discrimination in the State of Louisiana for more than the 
last twenty-five years.

10.

The allegations of paragraph 10 are denied.

11.

The allegations of paragraph 11 are denied.

12.

The allegations of paragraph 12 are denied.

13.
The allegations of paragraph 13 are denied.



62

WHEREFORE, defendants pray that the foregoing 
answers be deemed good and sufficient and that upon 
hearing had the demands of the intervenor be rejected at 
its cost.

William J. Guste, Jr.
ATTORNEY GENERAL 

Louisiana Department of Justice 
234 Loyola Avenue, 7th Floor 
New Orleans, Louisiana 70112 

(504) 568-5575

M. Truman Woodward, Jr. 
909 Poydras Street, Suite 2300 
New Orleans, LA 70130 
(504) 569-7100 
Bar. I.D. No. 13676

A. R. Christovich 
1900 American Bank Bldg. 
New Orleans, LA 70130 
(504) 561-5700 
Bar I.D. No. 4114

Moise W. Dennery 
601 Poydras Street 

New Orleans, LA 70130 
(504) 586-1241 

Bar I.D. No. 4873

By: /s /  Robert G. Pugh 
Robert G. Pugh 

Trial Attorney 
Commercial National Tower 

Suite 2100 
333 Texas Street 

Shreveport, LA 71101-5302 
(318) 227-2270 

Bar I.D. No. 10897 
Fed. I.D. No. 3336

SPECIAL ASSISTANT ATTORNEYS GENERAL



63

Suprem e C o u rt o f t()e (Hmteb States!

No. 90-757

R onald  C h iso m , et  a l ., petitioners

v.

C harles E . Ro em er , et a l .

ORDER ALLOWING CERTIORARI. Filed January 
18, 1991.

The petition herein for a writ of certiorari to the United 
States Court of Appeals for the Fifth Circuit is granted. 
This case is consolidated with 90-1032, United States v. 
Charles E. Roemer, Governor o f Louisiana, et al. and a 
total of one hour is allotted for oral argument.

January 18, 1991



64

Supreme Court of tfje (Hmteti States

No. 90-1032

U nited  St a tes , petitio n er

v .

C harles E. R o em er , G overnor  of L o uisia n a , et a l .

ORDER ALLOWING CERTIORARI. Filed January 
18, 1991.

The petition herein for a writ of certiorari to the United 
States Court of Appeals for the Fifth Circuit is granted. 
This case is consolidated with 90-757, Ronald Chisom, et 
al. v. Charles E. Roemer, et al. and a total of one hour is 
allotted for oral argument.

January 18, 1991

U.S. GOVERNMENT PRINTING OFFICE: 1990-282-061/40005