Memorandum Opinion

    No. 90-757 

In The 

Supreme Court of the United States 
October Term, 1990 

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

Petitioners, 
Versus 

BUDDY ROEMER, in his capacity as Governor of the State of 
Louisiana; FOX McKEITHEN, in his capacity as Secretary of 
State of Louisiana; and JERRY M. FOWLER, in his capacity as 
Commissioner of Elections of the State of Louisiana, 

Respondents. 

Petition For A Writ Of Certiorari To The United States Court 
Of Appeals For The Fifth Circuit 

BRIEF OF RESPONDENTS IN OPPOSITION 

ROBERT G. PUGH 
Counsel of Record 
ROBERT G. PUGH, JR. 

Of the Law Firm of PUGH, Pucn & PUGH 
Commercial National Tower, Suite 2100 

333 Texas Street 
Shreveport, LA 71101-5302 

(318) 227-2270 

M. TRUMAN WOODWARD, JR. 
909 Poydras Street 
Suite 2300 
New Orleans, LA 70130 
(504) 569-7100 

A. R. CHRISTOVICH 
2300 Pan American 

Life Center 
601 Poydras Street 
New Orleans, LA 70130 
(504) 561-5700 

December 14th, 1990. 

MOISE W. DENNERY 
601 Poydras Street 
New Orleans, LA 70130 
(504) 586-1241 

W ILLIAM J. GUSTE, JR. 
Attorney General 
Louisiana Department 

of Justice 
234 Loyola Avenue, 7th Floor 
New Orleans, LA 70112 
(504) 568-5575 

CCCKLE LAW BRIEF PRINTING CO., (800) 225-6961 
OR CALL COLLECT (402) 342-2831 



i 

QUESTION PRESENTED 

Did Congress intend the word "representatives" as 

used in the Voting Rights Act of 1965, § 2(b) as amended, 

42 U.S.C. § 1973, to include judges who are selected by a 

state judicial electoral process? 



11 

TABLE OF CONTENTS 

Page 

QUESTION PRESENTED  

TABLE OF CONTENTS  ii 

TABLE OF AUTHORITIES  iv 

STATEMENT OF THE CASE  1 

A. The First Supreme Court District in Louisiana  1 

B. Prior Proceedings in this Litigation   3 

ARGUMENT  5 

I. THE FIFTH CIRCUIT CORRECTLY CON-
CLUDED THAT SECTION 2(B) OF THE VOT-
ING RIGHTS ACT DOES NOT APPLY TO THE 
JUDICIARY  5 

A. The LULAC Decision  5 

B. The Genesis of § 2(b) of the Voting Rights 
Act   7 

C. This Court has always held that Judges are 
not "representatives"  8 

D. Other Federal Courts have held that Judges 
are not "representatives"  10 

E. The Term "representatives" is not a Syn-
onym for "elected officials"   14 

F. The Fundamental Difference Between "repre-
sentatives" and Members of the Judiciary is 
Deeply Rooted in this Country's History  17 



iii 

TABLE OF CONTENTS — Continued 
Page 

II. IF THE ONE-MAN, ONE-VOTE REQUIREMENT 
DOES NOT APPLY TO THE JUDICIARY, THE 
CONCEPT OF MINORITY VOTE DILUTION SET 
FORTH IN § 2(B) DOES NOT APPLY TO THE 
JUDICIARY   22 

CONCLUSION  29 

t 



iv 

TABLE OF AUTHORITIES 
Page 

CASES: 

Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 
663 (1962) 10, 29 

Brown v. Board of School Commissioners of Mobile 
County, 706 F.2d 1103 (11th Cir.), affirmed, 464 
U.S. 1005, 104 S.Ct. 520, 78 L.Ed.2d 705 (1983)   8 

Buchanan v. Gilligan, 349 F. Supp. 569 (N.D. Ohio 
1972)  14 

Buchanan v. Rhodes, 249 F. Supp. 860 (N.D. Ohio 
1966), appeal dismissed, 385 U.S. 3, 87 S.Ct. 33, 17 
L.Ed.2d 3 (1966), vacated 400 F.2d 882 (6th Cir. 
1968), cert. denied, 393 U.S. 839, 89 S.Ct. 118, 21 
L.Ed.2d 110 (1968)  13 

Chandler v. Judicial Council, 398 U.S. 74, 90 S.Ct. 
1648, 26 L.Ed.2d 100 (1970)  29 

Chisom v. Edwards, 659 F. Supp. 183 (E.D.La. 1987)  4 

Chisom v. Edwards, 690 F. Supp. 1524 (E.D.La. 1988)  4 

Chisom v. Edwards, 839 F.2d 1056 (5th Cir. 1988)  4 

Chisom v. Edwards, 850 F.2d 1051 (5th Cir. 1988)  4 

Chisom v. Edwards, 853 F.2d 1186 (5th Cir. 1988)  4 

Chisom v. Roemer, F. Supp. (E.D. La. 1989) 
  1, 2, 3, 4, 5 

Chisom v. Roemer, F. Supp. (E.D. La. 1990)   5 

Chisom v. Roemer, 917 F.2d 187 (5th Cir. 1990)  5, 7 

City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490 
64 L.Ed.2d 47 (1980) 7, 23, 24, 25, 26 



- A 

V 

TABLE OF AUTHORITIES — Continued 
Page 

Consumer Products Safety Comm'n v. GTE Sylvania, 
447 U.S. 102, 100 S.Ct. 2051, 64 L.Ed.2d 766 
(1980)   14 

Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 
95 L.Ed. 1137 (1951)  10 

Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 
103 S.Ct. 986, 74 L.Ed.2d 845 (1983)  15 

Edge v. Sumter County School District, 775 F.2d 1509 
(11th Cir. 1985)  8 

Escondido Mut. Water Co. v. La Jolla Indians, 466 
U.S. 765, 104 S.Ct. 2105, 80 L.Ed.2d 753 (1984) .... 15 

Fahey v. Darigan, 405 F. Supp. 1386 (D.C.R.I. 1975) ... 14 

Gilday v. Board of Elections of Hamilton County, 472 
F.2d 214 (6th Cir. 1972)  13 

Gomez v. City of Watsonville, 863 F.2d 1407 (9th Cir. 
1988), cert. denied, U.S. 109 S.Ct. 1534, 
103 L.Ed.2d 839 (1989)  8 

Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 
14 L.Ed.2d 510 (1965)  10 

Holshouser v. Scott, 335 F. Supp. 928 (M.D.N.C. 
1971), affirmed, 409 U.S. 807, 93 S.Ct. 43, 34 
L.Ed.2d 68 (1972) 10, 11 

Jordan v. Winter, 604 F. Supp. 807 (N.D. Miss.), 
affirmed, 469 U.S. 1002, 105 S.Ct. 416, 83 L.Ed.2d 
343 (1984)  9 

Kail v. Rockefeller, 275 F. Supp. 937 (E.D.N.Y. 1967) .... 13 

Ketchum v. Byrne, 740 F.2d 1398 (7th Cir. 1984), 
cert. denied, 471 U.S. 1135, 105 S.Ct. 2673, 86 
L.Ed.2d 692 (1985)  8 



vi 

TABLE OF AUTHORITIES — Continued 
Page 

Latin American Citizens Council #4434 v. Clements, 
902 F.2d 293 (5th Cir. 1990)  6 

Latin American Citizens Council #4434 v. Clements, 
914 F.2d 620 (5th Cir. 1990) (en banc)  passim 

New York State Association of Trial Lawyers v. Rock-
efeller, 267 F. Supp. 148 (S.D.N.Y. 1967)  12 

Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 
L.Ed.2d 506 (1964)  10, 12, 23, 29 

Roemer v. Chisom, 488 U.S. 955, 109 S.Ct. 390, 102 
L.Ed.2d 379 (1988)  4 

Romiti v. Kerner, 256 F. Supp. 35 (N.D. III. 1966)  14 

Sagan v. Commonwealth of Pennsylvania, 542 F. 
Supp. 880 (W.D. Pa. 1982)   14 

Stokes v. Fortson, 234 F. Supp. 575 (N.D. Ga. 1964) .11, 29 

Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 
L.Ed.2d 25 (1986) 7, 23, 24, 27, 28 

United States v. Marengo County Commission, 731 
F.2d 1546 (11th Cir.), appeal dismissed & cert. 
denied, 469 U.S. 976, 105 S.Ct. 375, 83 L.Ed.2d 
311 (1984)  8 

Velasquez v. City of Abilene, 725 F.2d 1017 (5th Cir. 
1984)  8 

Wells v. Edwards, 347 F. Supp. 453 (M.D. La. 1972) 
  9, 23, 26, 27 

Wells v. Edwards, 409 U.S. 1095, 93 S.Ct. 904, 34 
L.Ed.2d 679 (1973) 9, 22, 23, 26, 27 

Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 
L.Ed.2d 363 (1971)  28 



vii 

TABLE OF AUTHORITIES — Continued 
Page 

White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 
L.Ed.2d 314 (1973)  7 

Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) .... 27 

CONSTITUTIONAL AND STATUTORY PROVISIONS: 

United States Constitution Fourteenth Amend-
ment 1, 25 

United States Constitution Fifteenth Amendment ..1, 25 

28 U.S.C. § 1331  1 

28 U.S.C. § 1343  1 

28 U.S.C. § 2201  1 

28 U.S.C. § 2202  1 

42 U.S.C. § 1973 [Voting Rights Act]  passim 

42 U.S.C. § 1983  1 

1879 Louisiana Constitution Article 82   2 

1898 Louisiana Constitution Article 87   2 

1913 Louisiana Constitution Article 87   2 

1921 Louisiana Constitution Article 7 § 9   2 

1974 Louisiana Constitution Article 5 § 4  2, 3 



viii 

TABLE OF AUTHORITIES — Continued 
Page 

RULES: 

Fed.R.Civ.P.12(b)(6)   3 

LEGISLATIVE HISTORY: 

S.Rep. No. 417, 97th Cong. 2d Sess. reprinted in 
1982 U.S. Code Cong. 8r Admin. News at 177, 
196  23 

BOOKS: 

A. Bickel, The Supreme Court and the Idea of Progress 
(1978 Yale University Press paperback edition) .20, 21 

J. Ely, Democracy and Distrust (1980 Harvard Uni-
versity Press hardbound edition)  20 

L. Friedman, A History of American Law (Simon & 
Schuster 1973 paperback edition)   20 

E. Hickok, Judicial Selection: The Political Roots 
of Advice and Consent in Judicial Selection: 
Merit, Ideology and Politics (National Legal Cen-
ter for the Public Interest 1990)  17 

G. White, The American Judicial Tradition (1978 
Oxford University Press edition)  17, 18, 19, 20 

NEWSPAPERS: 

Baton Rouge State-Times, October 9th, 1989  3 

New Orleans Times-Picayune, October 8th, 1989  3 



STATEMENT OF THE CASE 

Petitioners brought this suit in the United States Dis-

trict Court for the Eastern District of Louisiana on behalf 

of all black registered voters in Orleans Parish, approx-

imately 135,000 people. The suit challenged the at-large 

election of two Justices to the Louisiana Supreme Court 

from the parishes of Orleans, St. Bernard, Plaquemines 

and Jefferson (the First Supreme Court District) as being 

in violation of the 1965 Voting Rights Act, as amended, 

because of alleged dilution of the voting strength of the 

Petitioners. Jurisdiction was based on 28 U.S.C. §§ 1331 

and 1343 as well as 42 U.S.C. § 1973. The action sought 

declaratory and injunctive relief, 42 U.S.C. §§ 1973 and 

1983. Petitioners also sought relief under 28 U.S.C. 

§§ 2201 and 2202 and the Fourteenth and Fifteenth 

Amendments to the United States Constitution. Peti-

tioners sought the division of the First Supreme Court 

District into two districts, one to be comprised of the 

parishes of Jefferson, Plaquemines and St. Bernard and 

the other of Orleans Parish where blacks constituted a 

majority of the registered voters. 

A. The First Supreme Court District in Louisiana. 

The Louisiana Supreme Court is the highest court in 

the State of Louisiana. The Court is composed of seven 

Justices, elected from six Supreme Court districts for a 

term of ten years. Chisom v. Roemer, F. Supp.  , Slip 

Opinion 3 (E.D. La. 1989) (hereinafter cited as "Slip Op. 

#"). No parish lines are cut by any of the election districts 

for the Supreme Court. Slip Op. 4. 

1 



2 

The First Supreme Court District, consisting of the 

city of New Orleans and its surrounding environs, has 

been the only district that has elected two Justices since 

adoption of the 1879 Louisiana Constitution more than 

110 years ago. Slip op. 16; see Louisiana 1879 Constitution 

Article 82; Louisiana 1898 Constitution Article 87; Louisi-

ana 1913 Constitution Article 87; Louisiana 1921 Consti-

tution Article 7, § 9; and Louisiana 1974 Constitution 

Article 5, § 4. 

The most recent Louisiana Constitution took effect in 

1974 after the 1973 Louisiana Constitutional Convention. 

Twelve of the 132 delegates to the Convention were black. 

Slip op. 17. During the Convention three amendments 

were proposed to divide the Supreme Court into single-

member districts. The first failed 27-85, with one black 
delegate voting for the proposal, eleven [sic — should be 

ten) against, and one absent. Slip Op. 18. The second 

failed 47-67, with seven blacks voting for the amendment, 

four against, and one absent. Slip op. 18. The final 

amendment proposed splitting the First Supreme Court 

District into two districts, with one Justice to be elected 

from each. When a white delegate argued in favor of the 

proposal, a black delegate from Orleans Parish responded 

that the present arrangement should not be changed. Slip 

Op. 19. This amendment was defeated 50-63, with five 

blacks voting for the amendment and seven against. Slip 

op. 19. The final districting plan, leaving the First 

Supreme Court District with two Justices, was adopted 

103-9, with eight blacks voting for the plan, one against, 

The parishes in the First Supreme Court District include 
Orleans, St. Bernard, Plaquemincs, and Jefferson Parishes. 



3 

and two absent. Slip Op. 19. Four of the blacks voting for 

the plan were delegates from Orleans Parish. 

The proposed Constitution was approved by the 

United States Department of Justice and ratified by the 

voters of Louisiana on April 20th, 1974. Slip Op. 19. 

Although the Louisiana Legislature has the authority to 

change districts and. the number of justices by a two-

thirds vote, 1974 Louisiana Constitution Article 5, § 4, it 

has never done so. Slip op. 19. A proposed constitutional 

amendment to split the district so that Orleans Parish 

would constitute a district by itself was defeated by the 

Louisiana voters in October, 1989 with the unofficial 

Associated Press totals showing a vote of 151,342 for the 

amendment and 451,845 against the amendment. Baton 

Rouge State-Times, October 9th, 1989. In Orleans Parish 
the amendment was defeated by a three-to-one majority, 

with 16,526 voting for the amendment and 46,354 voting 

against the amendment. New Orleans Times-Picayune, 
October 8th, 1989.2 

B. Prior Proceedings in this Litigation. 

After the complaint was filed, respondents filed a 

Fed.R.Civ.P.12(b)(6) motion to dismiss for the failure of 

the petitioners to state a claim upon which relief could be 

2 Given that Orleans Parish is majority black in both popu-
lation (55.2%) and registered voters (53.6%), and given that the 
amendment was defeated three to one in Orleans Parish, it is 
fair to surmise that blacks in Orleans Parish opposed the 
amendment which would bring about the very same remedy 
sought by petitioners herein. 



4 

ranted, The district court agreed with respondents' con-

tention that it was not the intention of Congress to apply 

the word "representatives" in Section 2 of the Voting 

Rights Act, as amended, to embrace members of the 

judiciary. Chisom v. Edwards, 659 F. Supp. 183 (E.D. La. 

1987). The district court drew a distinction between the 

impartial functions performed by the judiciary without a 

constituency and the functions performed by representa-

tives who are not expected to be impartial but rather 

reflective of the needs and wishes of their constituency. 

659 F. Supp. at 186. 

The petitioners appealed to the United States Court 

of Appeals for the Fifth Circuit, which reversed the judg-

ment of the district court and remanded the case because 

the Court concluded that Section 2 does apply to the 

election of state court judges. Chisom v. Edwards, 839 F.2d 

1056 (5th Cir.), rehearing and rehearing en banc denied, cert. 

denied sub nom. Roemer v. Chisom, 488 U.S. 955, 109 S.Ct. 

390, 102 L.Ed.2d 379 (1988). 

The petitioners then successfully moved to enjoin the 

election of a Justice from the First Supreme Court District 

during the regularly scheduled Fall, 1988 election. Chisom 

v. Edwards, 690 F. Supp. 1524 (E.D. La. 1988). The Fifth 

Circuit stayed the injunction, 850 F.2d 1051 (5th Cir. 1988), 

and ultimately reversed the injunction, 853 F.2d 1186 (5th 

Cir. 1988). 

After a trial on the merits, the district court dis-

missed petitioners' statutory and constitutional claims. 

Chisom v. Roemer, F. Supp. (E.D. La. 1989). The 

court concluded: 



5 

that the petitioners had not proven that the use 
of a multi-member electoral structure operates 
to minimize or cancel out their ability to elect 
their preferred candidates. As detailed in the 
court's findings of fact, the statistical evidence 
regarding judicial and non-judicial elections 
shows that the blacks have had full access to the 
political process and routinely elect their prefer-
red candidates, often times joining forces with a 
significant portion of the white electorate, and 
thereby creating significant crossover voting. 

Slip Op. at 40-41. The petitioners appealed the Voting 

Rights Act decision.3 The Fifth Circuit remanded for dis-

missal for failure to state a claim upon which relief may 

be granted. 917 F.2d 187 (5th Cir. 1990). On remand the 

case was dismissed. F. Supp. (E.D. La. 1990). 

Thereafter, this Petition was filed. 

ARGUMENT 

I. THE FIFTH CIRCUIT CORRECTLY CONCLUDED 
THAT SECTION 2(b) OF THE VOTING RIGHTS 
ACT DOES NOT APPLY TO THE JUDICIARY. 

A. The LULAC Decision. 

The United States Court of Appeals for the Fifth 

Circuit dismissed the appeal in this case based on the en 

banc decision of that Court in Latin American Citizens 

Council #4434 v. Clements, 914 F.2d 620 (5th Cir. 1990) (en 

3 Petitioners did not appeal the district court's rejection of 
their constitutional claim of intentional discrimination. 



6 

banc) (hereinafter "LULAC").4 The plaintiffs in LULAC 

challenged the county-wide, at-large election of trial 

judges in Texas as violative of § 2(b) of the Voting Rights 

Act and of the United States Constitution. The trial court 

denied the constitutional claims, finding that the requisite 

discriminatory intent had not been proven. 914 F.2d at 

623. The trial court, however, did find "that the Texas law 

produced an unintended dilution of minority voting 

strength" in violation of the "results" test of § 2(b) of the 

Voting Rights Act. 914 F.2d at 623 (emphasis in original). 

On appeal, a panel of the Fifth Circuit held that § 2(b) did 

not apply to trial judges because they are single-member 

officeholders who can be elected only at-large. 902 F.2d 

293 (5th Cir. 1990). 

The Fifth Circuit granted an en banc hearing sua 

sponte. A majority held that judges are not "representa-

tives" within the meaning of § 2(b) of the Voting Rights 

Act and that the "results" test of § 2(b) does not apply to 

the judiciary. 914 F.2d 620 (5th Cir. 1990). Five judges 

concurred, agreeing with the view of the panel that trial 

judges are single-member officeholders. 914 F.2d at 634. 

Chief Judge Clark also concurred, limiting the case to its 

facts. 914 F.2d at 631. Only one Judge, Judge Sam John-

son, dissented. 914 F.2d at 651. After the en banc opinion 

was published, the panel in Chisom remanded this case to 

4 On November 21, 1990, a group of plaintiffs-intervenors 
in that case, the Houston Lawyers' Association and six individ-
uals, filed a petition for a writ of certiorari asking this Court to 
review the judgment and opinion of the Fifth Circuit in 
LULAC. That petition is pending. 



7 

the district judge with orders to dismiss all Voting Rights 

Act claims. 917 F.2d 187 (5th Cir. 1990). 

B. The Genesis of § 2(b) of the Voting Rights Act. 

Section 2 of the Voting Rights Act of 1965 forbade 

imposition or application of any "voting qualification or 

prerequisite to voting, or standard, practice, or pro-

cedure" to prevent any citizen from voting on account of 

race or color. 42 U.S.C. § 1973. This Court in City of Mobile 

v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), 

held that enforcement of § 2 required proof of racially-

discriminatory intent. 

Congress then passed the Voting Rights Act of 1982 

amending § 2 to 

restore the "results test" — the legal standard 
that governed voting discrimination cases prior 
to [the Supreme Court's] decision in Mobile v. 
Bolden * * * * Under the "results test," plaintiffs 
are not required to demonstrate the challenged 
electoral law or structure was designed or main-
tained for a discriminatory purpose. 

Thornburg v. Gingles, 478 U.S. 30, 43 n. 8, 106 S.Ct. 2752, 92 
L.Ed.2d 25, 42 n. 8 (1986) (citations omitted). In writing 

§ 2(b), Congress chose — with one significant exception — 

the words of Justice White in White v. Regester, 412 U.S. 

755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973). Justice White 

stated that plaintiffs' burden of proof was to show: 

that its members had less opportunity than did 
other residents in the district to participate in 
the political processes and to elect legislators of 
their choice. 



8 

412 U.S. at 766, 93 S.Ct. at 2339, 37 L.Ed.2d at 324 

(emphasis supplied). Section 2(b) provides that a plaintiff 

class of citizens must show: 

that its members have less opportunity than 
other members of the electorate to participate in 
the political process and to elect representatives 
of their choice. 

42 U.S.C. § 1973(b) (emphasis supplied). As the majority 

in LULAC recognized, the choice of the word "representa-

tives" was a deliberate one: "the Congress was at some 

pains to adapt and broaden the Court's phrases so as to 

convey its precise meaning." 914 F.2d at 625. 

C. This Court has always held that Judges are not 
"representatives." 

As stated in the prior section, § 2(b) applies to "rep-

resentatives." Members of the legislative and executive 

branches are certainly representatives, and the case law is 

replete with decisions holding that § 2(b) applies to such 

entities. See, e.g., Gomez v. City of Watsonville, 863 F.2d 

1407 (9th Cir. 1988), cert. denied, U.S.  , 109 S.Ct. 

1534, 103 L.Ed.2d 839 (1989) (city council and mayor); 

Edge v. Sumter County School District, 775 F.2d 1509 (11th 

Cir. 1985) (school board); Ketchum v. Byrne, 740 F.2d 1398 

(7th Cir. 1984), cert. denied, 471 U.S. 1135, 105 S.Ct. 2673, 

86 L.Ed.2d 692 (1985) (city aldermen); United States v. 

Marengo County Commission, 731 F.2d 1546 (11th Cir.), 

appeal dismissed & cert. denied, 469 U.S. 976, 105 S.Ct. 375, 

83 L.Ed.2d 311 (1984) (county commission); Velasquez v. 

City of Abilene, 725 F.2d 1017 (5th Cir. 1984) (city council); 

Brown v. Board of School Commissioners of Mobile County, 
706 F.2d 1103 (11th Cir.), affirmed, 464 U.S. 1005, 104 S.Ct. 



9 

520, 78 L.Ed.2d 705 (1983) (board of school commission-

ers); Jordan v. Winter, 604 F. Supp. 807 (N.D. Miss.), 

affirmed, 469 U.S. 1002, 105 S.Ct. 416, 83 L.Ed.2d 343 

(1984) (congressmen). 

Judges, however, traditionally have not been consid-

ered "representatives." This Court so held by affirming a 

three judge court voting rights decision that the "one-

man, one-vote" concept does not apply to the judiciary. 

Wells v. Edwards, 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 

679 (1973). In refusing to apply "one-man, one vote" 

precepts, the three judge court reasoned as follows: 

[A]s stated in Buchanan v. Rhodes [249 F. Supp. 
860 (N.D. Ohio 1960), appeal dismissed, 385 U.S. 
3, 87 S.Ct. 33, 17 L.Ed.2d 3 (1966)1: 

"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 sim-
ply not relevant to the makeup of the judici-
ary. 

"The State judiciary, unlike the legislature, 
is not the organ responsible for achieving 
representative government." New York 
State Association of Trial Lawyers v. Rock-
efeller, 267 F.Supp. 148, 153. 

Wells v. Edwards, 347 F. Supp. 453 (M.D. La. 1972) (three 

judge court). The LULAC majority opinion reasons that 

"Ent is impossible, given the single point at issue and the 

simple reasoning stated, to believe that the majority of 

the Supreme Court, in affirming Wells, did not concur in 

that reasoning." 914 F.2d at 627. 



10 

Similarly, Justice Frankfurter has stated: "Courts are 

not representative bodies. They are not designed to be a 

good reflex of a democratic society." Dennis v. United 

States, 341 U.S. 494, 575, 71 S.Ct. 857, 95 L.Ed. 1137, 

1160-61 (1951) (Frankfurter, J., concurring in the judg-

ment). And Justice Stewart has contrasted the Court's 
duty with that of the people's representatives: 

It is the essence of judicial duty to subordinate 
our own personal views, our own ideas of what 
legislation is wise and what is not. If, as I should 
surely hope, the law before us does not reflect 
the standards of the people of Connecticut, the 
people of Connecticut can freely exercise their 
true Ninth and Tenth Amendment rights to per-
suade their elected representatives to repeal it. 

Griswold v. Connecticut, 381 U.S. 479, 530-31, 85 S.Ct. 1678, 

14 L.Ed.2d 510, 542 (1965) (Stewart, J., dissenting) 

(emphasis supplied). 

D. Other Federal Courts have held that Judges are 
not "representatives." 

The lower federal courts have also held that judges 

are not representatives. The plaintiffs in Holshouser v. 

Scott, 335 F. Supp. 928 (M.D.N.C. 1971) (three judge 

court), attacked the North Carolina system of nominating 

judges by districts and electing them statewide, contend-

ing that it denied voters equal protection of the laws. 

They cited, inter alio, Baker v. Carr, 369 U.S. 186, 82 S.Ct. 

691, 7 L.Ed.2d 663 (1962), and Reynolds v. Sims, 377 U.S. 

533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). The court distin-

guished these and the other cases because they "dealt 

with the election of the representatives of the people — 



11 

,., 

; 

officials who make laws, levy and collect taxes, and gen-

erally manage and govern people." 335 F. Supp. at 930. 

After discussing two precedents involving reapportion-

ment, the court stated: 

While Buchanan Iv. Rhodes, 249 F. Supp. 860 
(N.D. Ohio 1960), appeal dismissed, 385 U.S. 3, 87 
S.Ct. 33, 17 L.Ed.2d 3 (1966)] and [New York State 
Association of Trial Lawyers v.1 Rockefeller [267 F. 
Supp. 148 (S.D.N.Y. 1967], deal with the appor-
tionment of judges rather than their election, 
they nevertheless point up the many pitfalls and 
briar patches which the courts will encounter if 
the one man, one vote principle is made applica-
ble to the judiciary. The function of judges, con-
trary to some popular views of today, is not to 
make, but interpret the law. They do not govern 
nor represent people nor espouse the cause of a 
particular constituency. They must decide cases 
exclusively on the basis of law and justice and 
not upon the popular view prevailing at the 
time. 

335 F. Supp. at 932. The Holshouser case was affirmed by 

the Supreme Court. 409 U.S. 807, 93 S.Ct. 43, 34 L.Ed.2d 

68 (1972). 

A similar system of electing judges in Georgia was 

upheld in Stokes v. Fortson, 234 F. Supp. 575 (N.D. Ga. 

1964) (three judge court). The court stated: 

[E]ven assuming some disparity in voting 
power, the one man-one vote doctrine, applica-
ble as it now is to selection of legislative and 
executive officials, does not extend to the judici-
ary. Manifestly, judges and prosecutors are not 
representatives in the same sense as are legisla-
tors or the executive. Their function is to admin-
ister the law, not to espouse the cause of a 
particular constituency. Moreover there is no 



12 

way to harmonize selection of these officials on 
a pure population standard with the diversity in 
type and number of cases which will arise in 
various localities, or with the varying abilities of 
judges and prosecutors to dispatch the business 
of the courts. An effort to apply a population 
standard to the judiciary would, in the end, fall 
of its own weight. 

234 F. Supp. at 577. 

In two New York cases the plaintiffs sought judicial 

reapportionment on the basis of population, again relying 

on legislative reapportionment cases such as Reynolds v. 

Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). In 
New York State Association of Trial Lawyers v. Rockefeller, 267 

F. Supp. 148 (S.D.N.Y. 1967), the court rejected the com-

parison, stating that: 

The state judiciary, unlike the legislature, is 
not the organ responsible for achieving repre-
sentative government. Nor can the direction that 
state legislative districts be substantially equal 
in population be converted into a requirement 
that a state distribute its judges on a per capita 
basis. 

In contrast to legislative apportionment, 
population is not necessarily the sole, or even 
the most relevant, criterion for determining the 
distribution of state judges. The volume and 
nature of litigation arising in various areas of 
the state bears no direct relationship to the pop-
ulation of those areas. 

267 F. Supp. at 153-54. A three judge court rejected a 

similar suit in the Eastern District of New York, quoting 

the Rockefeller opinion's statement that the state judiciary 

k 
1 



13 

is not "responsible for achieving representative govern-

ment." Kail v. Rockefeller, 275 F. Supp. 937, 941 (E.D.N.Y. 

1967) (three judge court). 

The Ohio judicial structure guaranteeing each county 

at least one judge in the court of general jurisdiction came 

under attack in Buchanan v. Rhodes, 249 F. Supp. 860 (N.D. 

Ohio 1966), appeal dismissed, 385 U.S. 3, 87 S.Ct. 33, 17 

L.Ed.2d 3 (1966), vacated, 400 F.2d 882 (6th Cir. 1968), cert. 

denied, 393 U.S. 839, 89 S.Ct. 118, 21 L.Ed.2d 110 (1968). 

Once again, the complaint was predicated upon the 

Supreme Court's reapportionment cases. The court noted 

that when representatives to a legislative body are malap-

portioned, the voting strength of individual citizens 

becomes unequal, causing a dilution of power. 249 F. 

Supp. at 865. Judges, however, are not governed by such 

a rule: 

But in determining the reasonableness of a 
judicial system which permits at least one judge 
operating a court of general jurisdiction in each 
county, we must recognize one glaring distinc-
tion between the functions of legislators and the 
functions of jurists. Judges do not represent peo-
ple, they serve people. 

249 F. Supp. at 865.5 

5 Numerous other decisions make a similar distinction 
between judges and representative officials. See Gilday v. Board 
of Elections of Hamilton County, 472 F.2d 214, 217 (6th Cir. 1972) 
(rejecting application of one-man, one-vote to judicial selection 
in Ohio and holding "that equal protection does not require the 

(Continued on following page) 



14 

E. The Term "representatives" is not a Synonym 
for "elected officials". 

Earlier sections of this Response demonstrate that 

this Court and the lower federal courts do not consider 

judges to be "representatives." This section argues that 

the word "representative" as used in § 2(b) is not syn-

onymous with "elected official" and should instead be 

given its commonly understood meaning. This Court has 

laid down definitive guidelines for construing language 

which appears in Congressional acts. 

In Consumer Products Safety Comm'n v. GTE Sylvania, 

447 U.S. 102, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980), the 

Court stated: 

(Continued from previous page) 

allocation of state judges on this basis"); Sagan v. Common-
wealth of Pennsylvania, 542 F. Supp. 880, 882 (W.D. Pa. 1982) 
(distinguishing judicial candidates from legislative and execu-
tive candidates because judges administer the law rather than 
espouse the cause of a particular constituency); Fahey v. Dar-
igan, 405 F. Supp. 1386, 1391 n. 6 (D.R.I. 1975) (holding one-
man, one-vote precepts inapplicable to "the selection of offi-
cials not intended to serve in a representative role, such as 
judges"); Buchanan v. Gilligan, 349 F. Supp. 569, 571 (N.D. Ohio 
1972) (three judge court) (rejecting application of one-man, 
one-vote to Ohio judiciary because "[title state judiciary is not 
responsible for achieving representative government"); Romiti 
v. Kerner, 256 F. Supp. 35, 46 (N.D. III. 1966) (three judge court) 
(expressing "little doubt" that "there is a valid distinction 
between applying the 'one man, one vote' rule in a legislative 
apportionment case to the election of a state supreme court 
judiciary"). 



15 

We begin with the familiar canon of statutory 
construction that the starting point for interpret-
ing a statute is the language of the statute itself. 

447 U.S. at 108, 100 S.Ct. 2051, 64 L.Ed.2d at 773. 

Four years later, in furtherance of this concept of 

construction, the Court held in Escondido Mut. Water Co. v. 

La Jolla Indians, 466 U.S. 765, 104 S.Ct. 2105, 80 L.Ed.2d 

753 (1984): 

Since it should be generally assumed that Con-
gress expresses its purposes through the ordi-
nary meaning of the words it uses, we have 
often stated that " la]bsent a clearly expressed 
legislative intention to the contrary, [statutory] 
language must ordinarily be regarded as conclu-
sive.' " 

466 U.S. at 772, 104 S.Ct. 2105, 80 L.Ed.2d at 761 (citations 
omitted). 

And in Dickerson v. New Banner Institute, Inc., 460 U.S. 

103, 103 S.D. 986, 74 L.Ed.2d 845 (1983), the Court said: 

[W]e state once again the obvious when we note 
that, in determining the scope of a statute, one is 
to look first at its language * ** * If the language 
is unambiguous, ordinarily it is to be regarded 
as conclusive unless there is "'a clearly 
expressed legislative intent to the contrary.'" 

460 U.S. at 110, 103 S.Ct. 986, 74 L.Ed.2d at 853 (citations 

omitted). 

The term "representatives" refers to those who serve 

a specialized constituency and whose role is to represent 

the needs and interests of that constituency. The term 

"representatives" has never been commonly accepted as 

including the judicial branch; indeed, the reverse is true — 



16 

namely, the judicial branch always has been treated as sepa-

rate and distinct from the two representative arms of govern-

ment. 

A representative of a district, be it federal, state, or local, 

exists to serve and favor his or her constituency, while 

hopefully also working for the good of the governmental 

jurisdiction as a whole. United States representatives are 

expected to help obtain government contracts for their dis-

tricts; no one, however, would expect a federal judge to 

uphold such a contract citing as a reason the need of his area 
for governmental business. State legislators are expected to 

seek bridges and roads for their districts; no one, however, 
would expect a state judge to mandate that such bridges and 

roads be built merely because the people want them. City 

councilmen are expected to promote drainage projects for 

their council district; no one, however, would expect a city 

judge to require them to keep his voters happy. 

Judges thus are not representatives; further, they should 

not be representatives. The larger the constituency, the less 

parochial pressures can be brought to bear. An advantage to 

at-large elections for judges is that judges can make the 

difficult decisions without undue fear of dissatisfaction in 

the electorate. A judge would be much less likely to vote 

against the residents of a neighborhood on a zoning issue if 
that judge was elected solely by that neighborhood. Justice 

ought to be identical throughout a judicial system; electing 

judges from neighborhoods, however, might make for a 

system of individualized justice currently foreign to the 

United States. Admittedly, many problems could be cured on 

appeal; however, it can be extremely difficult to reverse a 

detailed record of fact-finding even when the facts have been 

slanted. Further, the petitioners here seek to make appellate 



17 

districts smaller also, again lessening the number and mix of 

a judge's electorate. 

Congress, had it wanted specifically to include judges 

under Section 2(b) of the Voting Rights Act, could have done 

so by substituting the term "elected official" for the term 

"representative"; it did not do so. In a representative form of 

government, such as ours, it is always true that a "represen-

tative" is an "elected official"; however, the converse is not 
always true. 

Representatives have a constituency which numbers in 

the hundreds to hundreds of thousands, to each of whom 

they owe fidelity and from many of whom they are likely, 

sooner or later, to receive correspondence or a telephone call 

or even perhaps a personal visit. Judges have but one con-

stituency, the blindfolded lady with the scales and sword. 

F. The Fundamental Difference Between "representa-
tives" and Members of the Judiciary is Deeply 
Rooted in this Country's History. 

In holding that "the judiciary serves no representative 

function whatsoever," 914 F.2d at 625, the LULAC Court 
quoted Professor Eugene Hickok as stating that, "The judici-

ary occupies a unique position in our system of separation of 

powers, and that is why the job of a judge differs in a 
fundamental way from that of a legislator or executive." 

Hickok, "Judicial Selection: The Political Roots of Advice and 

Consent" in Judicial Selection: Merit, Ideology and Politics 5 
(National Legal Center for the Public Interest 1990), quoted at 
914 F.2d at 926. 

Other scholars have also recognized this difference. Pro-

fessor G. Edward White has written in The American Judicial 
Tradition that the American judicial tradition emerged with 



18 

Chief Justice John Marshall.6 A core element of that tradition 
has always included "a measure of true independence and 
autonomy for the appellate judiciary from the other two 
branches of government." Judicial Tradition 9. Professor White 
summarized Chief Justice Marshall's views concerning the 
judiciary as follows: 

An independent judiciary was logically the ulti-
mate necessity in Marshall's jurisprudence, the cul-
mination of his beliefs about law and government. 
He sought to show that judicial independence was 
not merely a side effect of federalism but a first 
principle of American civilization * * * * Against 
the potential chaos attendant on mass participatory 
democracy, republicanism erected the institutional 
buffers of legislative representatives and an inde-
pendent judiciary. The excesses of the people were 
moderated by representation, a process by which 
their passionate demands were reformulated by an 
enlightened and reasonable class of public ser-
vants. The need of the populace for an articulation 
of their individual rights under law was met by the 
presence of a body of judges not beholden to the 
masses in any immediate, partisan sense. 

Judicial Tradition 18, 20. 

Chief Justice Marshall's vision of the American judi-
cial tradition was not unique. Alexander Hamilton 

"envisaged judicial review as an exercise in politics 
through which an independent judicial elite could temper 

the democratic excesses of legislatures by affirming the 

republican political balances inherent in the Constitu-

tion." Judicial Tradition 24. Some of the Founding Fathers 

6 Citations are hereinafter abbreviated as Judicial Tradition. 
Page references refer to the 1978 Oxford University Press 
paperback edition. 



19 

thought an independent judiciary necessary because 

"even a government made up of the people's representa-

tives was not a sufficient buffer against the excesses of 
the mob." Judicial Tradition 320. 

This American judicial tradition has also been appli-

cable to the state judiciary. Professor White commented 

that the state constitutions "were patterned on the federal 
Constitution, with its tripartite division of powers." Judi-

cial Tradition 109. James Kent, Chief Judge of the New 
York Supreme Court and later Chancellor of New York, 

"viewed the judiciary as a buffer between established 

wealth and the excessively democratic legislature." Judi-
cial Tradition 112. Much more recently, Chief Justice Roger 

Traynor of the California Supreme Court wrote that 

judges "enjoyed a 'freedom from political and personal 

pressures and from adversary bias' [and that] Wheir 

'environment for work' was 'independent and analyt-

ically objective.' " Judicial Tradition 296, quoting Traynor, 

"Badlands in an Appellate Judge's Realm of Reasons," 7 
Utah L.Rev. 157, 167, 168 (1960). 

Professor White traced "modern liberalism" trends 

throughout the Twentieth Century. According to this 

political theory, judges "were not, by and large, represen-
tatives of the people, and their nonpartisan status insu-

lated them from the waves of current opinion." Judicial 

Tradition 320. Legislatures, on the other hand, "were 'rep-

resentative of popular opinion' and could 'canvass a wide 

spectrum of views.'" Judicial Tradition 322. One Twentieth 

Century Justice, Felix Frankfurter, has called the judiciary 



20 

the "antidemocratic, unrepresentative" branch of govern-

ment." Judicial Tradition 367.7 

Various legal theorists have also stated that judges are 

not "representatives." Perhaps the most provocative book to 

appear on judicial review during the last few years is Democ-

racy and Distrust by Professor John Hart Ely.8 Professor Ely 

contrasts the role of the courts with the role of the represen-

tative branch of government, the legislative branch. He 

sought an approach to judicial review "not hopelessly incon-

sistent with our nation's commitment to representative 

democracy." Democracy and Distrust 41. In his book, Professor 

Ely developed a representation-reinforcing theory of judicial 

review in which the non-representative branch (the judici-

ary) would review legislation to determine the motivation of 

the representative branch (the legislature) to make sure that 

the views of all groups were represented in lawmaking. He 

concluded by stating that "constitutional law appropriately 

exists for those situations where representative government 

cannot be trusted." Democracy and Distrust 183. 

Professor Alexander Bickel spoke of the importance of 

judicial independence in The Supreme Court and the Idea of 

Progress.9 

7 Professor Lawrence Friedman also has written about the 
history of a strong, independent judiciary in both federal and 
state governmental systems. L. Friedman, A History of American 
Law 116, 118 (Simon & Schuster 1973 paperback edition). 

8 Page references are to the 1980 Harvard University Press 
hardbound edition. 

9 Citations are hereinafter abbreviated as Supreme Court 
and Progress. Page references refer to the 1978 Yale University 
Press paperback edition. 



21 

The restraints of reason tend to ensure also 
the independence of the judge, to liberate him 
from the demands and fears — dogmatic, arbi-
trary, irrational, self-or group-centered, — that so 
often enchain other public officials. They make 
it possible for the judge, on some occasions, at 
any rate, to oppose against the will and faith of 
others, not merely his own will or deeply-felt 
faith, but a method of reaching judgments that 
may command the allegiance, on a second 
thought, even of those who find a result dis-
agreeable. The judge is thus buttressed against 
the world, but what is perhaps more significant 
and certain, against himself, against his own 
natural tendency to give way before waves of 
feeling and opinion that may be as momentary 
as they are momentarily overwhelming. 
* * * 

The independence of the judges is an absolute 
requirement if individual justice is to be done, if a 
society is to ensure that individuals will be dealt 
with in accordance with duly enacted policies of 
the society, not by the whim of officials or of mobs, 
and dealt with evenhandedly, under rules that 
would apply also to others similarly situated, no 
matter who they might be. 

Supreme Court and Progress 82, 84. 

Professor Bickel contrasted the Court with the people 

and its representatives, stating, "Virtually all important 

decisions of the Supreme Court are the beginnings of 

conversations between the Court and the people and 
their representatives." Supreme Court and Progress 91.1° 

O Supreme Court and Progress also contains much material 
on reapportionment. Supreme Court and Progress 35, 158-59, 

(Continued on following page) 



22 

II. IF THE ONE-MAN, ONE-VOTE REQUIREMENT 
DOES NOT APPLY TO THE JUDICIARY, THE CON-
CEPT OF MINORITY VOTE DILUTION SET FORTH 
IN § 2(B) DOES NOT APPLY TO THE JUDICIARY. 

This Court has held that the one-man, one-vote require-

ment does not apply to the judiciary. Wells v. Edwards, 409 

US. 1095, 93 S.Ct. 904, 34 L.E.2d 679 (1973). If this require-
ment is inapplicable, the concept of minority vote dilution in 

at-large districts is similarly inapplicable to the judiciary As 

the Fifth Circuit held in LULAC, 

Absent the one-person, one-vote rule — that the 
vote of each individual voter must be roughly 
equal in weight to the vote of every other individ-
ual voter, regardless of race, religion, age, sex, or 
even the truly subjective and uniquely individual 
choice of where to reside — there is no requirement 
that any individual's vote weigh equally with that 
of anyone else. This being so, and no such right 
existing, we can fashion no remedy to redress the 
non-existent wrong complained of here. 

The notion of individual vote dilution, first 
developed by the Supreme Court in Reynolds v. 
Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 
(1964), was the foundation for the concept of 
minority vote dilution to be later elaborated in 
Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 
29 L.Ed.2d 363 (1971), White v. Regester, [412 
U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973)], 
and Zimmer v. McKeithen, 485 F.2d 1297 (5th 
Cir. 1973). Individual vote dilution was 
remedied by the Court through the concept of 

(Continued from previous page) 

168-73. Never in that discussion is there any intimation that 
reapportionment requires judicial redistricting. Indeed, such a 
notion would run counter to his strong arguments for judicial 
independence. 



23 

one-person, one-vote — the guarantee of sub-
stantial equality among individual voters. With 
that guarantee in mind, remedial schemes to 
combat minority vote dilution were devised on 
a case by case basis. 

914 F.2d at 627 (emphasis in original). The Senate Report 

concerning the 1982 amendment to the Voting Rights Act 

states "[t]he principle that the right to vote is denied or 

abridged by dilution of voting strength derives from the 

one-person, one-vote reapportionment case of Reynolds v. 

Sims." S.Rep.No. 417, 97th Cong. 2d Sess., reprinted in 

1982 U.S. Code Cong. Sz Admin. News at 177, 196. 

The key issue, therefore, is whether Section 2(b) of 

the Voting Rights Act enshrines the "one-man, one-vote" 

principle as the touchstone test. If it does, then it cannot 

be used to analyze judicial elections, because the "one-

man, one-vote" test was expressly rejected as applying to 

the judiciary in Wells v. Edwards, 347 F.Supp. 453 (M.D. 

La. 1972), affirmed 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 

679 (1973). 

The express language of the plurality opinion in Gin-

gles, bolstered by the language of the concurring opin-

ions, shows that Section 2(b) is solely a "one-man, one-

vote" litmus test. Justice Brennan, in speaking for the 

plurality, began by noting that when Section 2 of the 

Voting Rights Act was amended in 1982 to add Section 

2(b), the Congressional revision was a response to the 

plurality opinion in Mobile v. Bolden, 478 U.S. at 35, 106 

S.Ct. at 2759, 92 L.Ed.2d at 37. The plurality in Gingles, in 

interpreting what evidence it takes under Section 2(b) to 

prove a Section 2(a) violation, established a three-fold 

test: 



1 

24 

First, the minority group must be able to dem-
onstrate that it is sufficiently large and geo-
graphically compact to constitute a majority in a 
single-member district. * * * Second, the minor-
ity group must be able to show that it is politi-
cally cohesive. * * * Third, the minority must be 
able to demonstrate that the white majority 
votes sufficiently as a bloc to enable it, — in the 
absence of special circumstances, such as a 
minority candidate running unopposed 
* * * usually to defeat the minority's preferred 
candidate * * * * In establishing this last circum-
stance, the minority group demonstrates that 
the submergence in a white multi-member dis-
trict impedes its ability to elect its chosen repre-
sentatives. 

478 U.S. at 50-51, 106 S.Ct. at 2766-67, 92 L.Ed.2d 46-47. 

As Justices O'Connor, Powell, Rehnquist, and Chief 
Justice Burger recognized in their concurring opinion in 
Gingles, this three-fold test equates to a requirement of 
proportional representation; i.e., one-man, one-vote. Jus-

tice O'Connor, speaking for these Justices, stated: 

Third, although the Court does not acknowledge 
it expressly, the combination of the Court's defi-
nition of minority voting strength and its test 
for vote dilution results in the creation of a right 
to a form of proportional representation in favor 
of all geographically and politically cohesive 
minority groups that are large enough to consti-
tute majorities if concentrated within one or 
more single-member districts. 

478 U.S. at 85, 106 S.Ct. at 2784-2785, 92 L.Ed.2d at 69. 

In my view, the Court's test for measuring 
minority voting strength and its test for vote 
dilution, operating in tandem, come closer to an 
absolute requirement of proportional represen-
tation than Congress intended when it codified 
the results test in § 2. 

I 



25 

478 U.S. at 94, 106 S.Ct. at 2789, 92 L.Ed.2d at 74. 

The Court's standard for vote dilution, when 
combined with its test for undiluted minority 
voting strength, makes actionable every devia-
tion from usual, rough, proportionality in repre-
sentation for any cohesive minority group as to 
which this degree of proportionality is feasible 
within the framework of single-member dis-
tricts. Requiring that every minority group that 
could possibly constitute a majority in a single-
member district be assigned to such a district 
would approach a requirement of proportional 
representation as nearly as is possible within the 
framework of the single-member districts. Since 
the Court's analysis entitles every such minority 
group usually to elect as many representatives 
under a multi-member district school, it follows 
that the Court is requiring a form of proportional 
representation. 

478 U.S. at 97, 106 S.Ct. at 279, 92 L.Ed.2d at 76-77 
(emphasis supplied). 

Justice O'Connor, and the other Justices who joined 
in her concurring opinion, recognized that proportional 
representation (one-man, one-vote) is the result of the 
plurality's opinion. It was exactly this type of propor-
tional representation that the.plurality in Mobile v. Bolden 

had rejected in its analysis of both Section 2 (pre-1982 
amendments) and the Fourteenth and Fifteenth Amend-
ments: 

The theory of [Justice Marshall's] dissenting 
opinion — a theory much more extreme than that 
espoused by the District Court or the Court of 
Appeals — appears to be that every "political 
group," or at least every such group that is a 
minority, has a federal constitutional right to 
elect candidates in proportion to its 
numbers. * * * 



26 

Whatever appeal the dissenting opinion's view 
may have as a matter of political theory, it is not 
the law. 

446 U.S. at 75, 100 S.Ct. at 1504, 64 L.Ed.2d at 63-64. 

The plurality in Mobile recognized that what is now 
Section 2(a) does not require a "proportionality" test. 
Section 2(a) was not substantially changed in the 1982 
amendments. Thus, if Section 2(b) establishes a "one-

man, one-vote" test, then under Wells it cannot be used 
against the judiciary. 

The petitioners may take the position that there is a 
distinction between a "proportionality" test and a "one-
man, one-vote" test. Such an argument would be unavail-
ing, as the plurality opinion in Mobile v. Bolden expressly 
recognized. 

After discussing (and rejecting) the dissent's argu-
ment concerning proportionality, the plurality in Mobile 
went further and determined that the "proportionality" 
argument equated to a "one-man, one-vote" test. 

The dissenting opinion erroneously discovers 
the asserted entitlement to group representation 
within the "one person, one vote" principle of 
Reynolds v. Sims, supra, [377 U.S. 533, 84 S.Ct. 
1362, 12 L.Ed.2d 506 (1964)] and its progeny. 

446 U.S. at 77, 100 S.Ct. at 1505, 64 L.Ed.2d at 65. As 
Mobile v. Bolden recognized, the term "vote dilution" is 

equivalent to holding that there is a "one-man, one-vote" 

test. 446 U.S. at 78, 100 S.Ct. at 1505, 64 L.Ed.2d at 65-66. 
As the plurality in Mobile v. Bolden stated: 

There can be, of course, no claim that the "one-
person, one-vote" principle has been violated in 
this case ' it is therefore obvious that 
nobody's vote has been "diluted" in the sense in 
which that word was used in the Reynolds case. 

•i• 



27 

* * * 

It is, of course, true that the right of a person to 
vote on an equal basis with other voters draws 
much of a significance from the political associa-
tions that its exercise reflects, but it is an alto-
gether different matter to conclude that political 
groups themselves have an independent consti-
tutional claim to representation. 

446 U.S. at 78, 100 S.Ct. 1505, 1507, 64 L.Ed.2d at 65, 66. 

Because Gingles involves only the interpretation of 

Section 2(b), and because Wells prohibits the use of a 
"one-man, one-vote" test involving judicial elections, it is 
clear that the Section 2(b) results test cannot be used to 

prove a violation of Section 2(a) in judicial elections. 

The concept of dilution of group voting strength 
[which is embodied in subsection (b) of amended Section 
2] rests on two assumptions: (1) that each person's vote 

should have the same weight as another person's vote, 
and (2) that a given (protected) group should wield 
roughly the aggregate voting strength of its members. See 
Zimmer v. McKeithen, 485 F.2d 1297, 1303 (5th Cir. 1973). If 
the first assumption is not true, the second cannot be 

made. For without the assumption of substantial equality 
among voting shares made possible by the one-man, one-

vote principle, no aggregate measure of minority voting 

strength — and therefore no measure of dilution of that 
strength — is conceivable. Because the one-man, one-vote 
rule does not apply to the judiciary, the conceptually 

dependent notion of minority group vote dilution, 
embodied in subsection (b), has no field of operation in 
judicial elections. 

This argument has nothing to do with statutory inter-

pretation, does not depend on a particular construction of 

the word "representative" as used in subsection (b), and 



28 

!I 

is not based on whether Congress intended that amended 

Section 2 have some field of operation with respect to 

judicial elections. It is, instead, based on an explanation 

of why, regardless of what breadth Congress intended for 

amended Section 2, minority group vote dilution — as that 

concept has developed in the voting rights jurisprudence 

— simply cannot exist unless the one-man, one-vote rule 

applies. 

Thornburg v. Gingles, the Court's definitive exegesis of 

Section 2 vote dilution, sharpens this point. In her con-

curring opinion, Justice O'Connor, joined by Powell, 

Rehnquist, and Chief Justice Burger, notes that "[i]n order 

to evaluate a claim that a particular multimember district 

or single-member district has diluted the minority 

group's voting strength to a degree that violates § 2 . . . it 

is . . . necessary to construct a measure of 'undiluted' 

minority voting strength." Gingles, 478 U.S. at 88, 106 

S.Ct. 2786, 92 L.Ed.2d at 71. There is no doubt that the 

yardstick adopted by the Gingles Court — a calculation of 

the minority's potential voting strength in a single-mem-

ber district system — rests on the assumption that the one-

man, one-vote rule applies and that each district has 

roughly the same population. See 478 U.S. at 50-51 n. 17, 

89-90, 106 S.Ct. 2766-67 n. 17, 2787, 92 L.Ed.2d at 46-47 

n.17, 72. Otherwise, to paraphrase Justice Harlan, the 

Court would be unable even to measure what it purports 

to equalize. Whitcomb v. Chavis, 403 U.S. at 169, 91 S.Ct. 

1883, 29 L.Ed.2d at 391 (Harlan J., separate opinion). 

Without the measure of individual voting strength 

provided in legislative cases by the one-man, one-vote 

rule, Gingles' first prong is meaningless in the judicial 



29 

context. It is always possible to construct a geograph-

ically compact black voting majority district by continu-

ing to reduce the total population in that district down to, 
if necessary, a minimum of one. There ARE no "judicially 

discernable and manageable standards" by which a court 

could find that a given judicial election system does not 

dilute minority voting strength if the population size of 
the hypothetical single-member subdistrict can be con-

tracted or expanded at will. See Baker v. Carr, 369 U.S. 186, 
217, 82 S.Ct. 691, 7 L.Ed.2d 663, 686 (1962). As one lower 

court has held, "An effort to apply a population standard 

to the judiciary would, in the end, fall of its own weight." 
Stokes v. Fortson, 234 F. Supp. 575, 577 (N.D. Ga. 1964). 

CONCLUSION 

This Court has always recognized the importance of 
an independent judiciary, holding in Chandler v. Judicial 

Council, 398 U.S. 74, 90 S.Ct. 1648, 26 L.Ed.2d 100 (1970): 

"There can, of course, be no disagreement among us as to 

the imperative need for total and absolute independence 
of judges in deciding cases or in any phase of the decisio-

nal function." 398 U.S. at 84, 90 S.Ct. 1648, 26 L.Ed.2d at 
108. In a dissent in the same case, Justice Douglas stated, 

"An independent judiciary is one of this Nation's out-

standing characteristics." 398 U.S. at 136, 90 S.Ct. 1648, 26 
L.Ed.2d at 137 (Douglas, J., dissenting). 

A quarter of a century ago this Court declared, "Leg-

islators represent people, not trees or acres." Reynolds v. 

Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 12 L.Ed.2d 506, 527 

(1964). Unlike legislators, judges are not "instruments of 

government elected directly by and directly representa-

tive of the people." 377 U.S. at 562, 84 S.Ct. 1362, 12 



30 

L.Ed.2d at 527. Making judges representatives would do 

violence to (and perhaps destroy) the American concept 

of an independent judiciary. 

For the reasons set forth herein, this Court should 

deny the Petition for Certiorari. 

All of the above and foregoing is thus respectfully 

submitted. 

ROBERT G. PUGH 
Counsel of Record 
ROBERT G. PUGH, JR. 
Of the Law Firm of 
PUGH, PUGH & PUGH 

Commercial National Tower 
Suite 2100 

333 Texas Street 
Shreveport, LA 71101-5302 

(318) 227-2270 

M OISE W. DENNERY 
601 Poydras Street 

New Orleans, LA 70130 
(504) 586-1241 

M. TRUMAN W OODWARD, JR. 
909 Poydras Street 
Suite 2300 
New Orleans, LA 70130 
(504) 569-7100 

A. R. CHRigrovicH 
2300 Pan American Life 
Center 

601 Poydras Street 
New Orleans, LA 70130 
(504) 561-5700 

SPECIAL ASSISTANT ATTORNEYS GENERAL 

W ILLIAM J. GUSTE, JR. 
Attorney General 

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

(504) 568-5575 

December 14th, 1990.