Chisom v. Roemer Reply Brief for Petitioners Ronald Chisom, et al

    Nos. 90-757 and 90-1032

In The

Supreme Court of ttje ®mte& States
October Term, 1990

Ronald Chisom, et a l, 

v.
Charles E. Roemer, et al.,

Petitioners,

Respondents.

United States of American,

v.
Petitioner,

Charles E. Roemer, et a l,
Respondents.

On Writs of Certiorari to the United States 
Court of Appeals for the Fifth Circuit

REPLY BRIEF FOR PETITIONERS RONALD CHISOM. ET AL.

William P. Quigley 
901 Covention Center Blvd. 
Fulton Place, Suite 119 
New Orleans, LA 70130 
(504) 524-0016

Roy Rodney, Jr. 
McGlinchey, Stafford, 

Mintz, Cellini, Lang 
643 Magazine Street 
New Orleans, LA 70130 
(504) 586-1200

Pamela S. Karlan 
University of Virginia 

School of Law 
Charlottesville, VA 22901 
(804) 924-7810

*Counsel of Record

Julius LeVonne Chambers 
’Charles Stephen Ralston 
Dayna L. Cunningham 
Sherrilyn A. Ifill 

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

Ronald L, Wilson 
310 Richards Building 
837 Gravier Street 
New Orleans, LA 70112 
(504) 525-4361

C. Lani Guinier 
University of Pennsylvania 

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

Attorneys for Petitioners

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203



1

Table of Contents

Page

Table of Contents ...........................................  i

Table of Authorities ......................................... iii

Introduction ......................................................  1

I. Congress Has Decisively Rejected
Respondents’ Distinction Between 
Purposeful and Nonpurposeful 
Discrimination ......................................  2

II. The Language and Structure of the 
Voting Rights Act, Taken as a 
Whole, Compel the Conclusion 
that Section 2 Covers Judicial
Elections ...................................    4

III. Section 2’s Use of the Word 
"Representatives" Does Not
Exclude Judicial Elections ..................  5

A. Elected State-Court Judges Can 
Reasonably Be Viewed as 
"Representatives" ....................  5



11

Page

B. Congress’ Use of the Word
"Representatives" Was Not 
Intended to Exempt Judicial

Elections from Section 2 . . . . .  9

C. Congress’ Expressed Intentions
Are Fully Consistent with
Including Judicial Elections
Within the Scope of Section 2 . 12

IV. Respondents Fundamentally Misconstrue 
the First Prong of Thornburg v.
Gingles ....................................................  14

V. Respondent’s Brief Advances Arguments 
Irrelevant to the Question Presented
in this Case ......................................  18

Conclusion 23



Ill

T a b l e  o f  A u t h o r it ie s

Page

Cases

Batson v. Kentucky, 478 U.S. 79 (1986) . . . .  22

City of Mobile v. Bolden, 445 U.S, 55 
(1980)   2

City of Rome v. United States, 446 U.S.
156 (1980)   15

LULAC v. Clements, 914 F.2d 620 (5th Cir.
1990) (en banc), cert, granted sub nom.
Houston Lawyers’ Ass’n v. Attorney
General of Texas, No. 90-813   3,5,7

Powers v. Ohio, 59 U.S.L.W. 4268 
(1991)   13,22

Sugarman v. Dougall, 413 U.S. 634 (1973) . . 6

Thornburg v. Gingles, 478 U.S. 30 
(1986)   2,12,14-15,16

West Virginia University Hospital v. Casey,
59 U.S.L.W. 4180 (1991)    4,12

White v. Regester, 412 U.S. 755 (1973)   9



Statutes Page

Age Discrimination in Employment Act,
42 U.S.C. § 630  ................. .. 7

Voting Rights Act of 1965, § 2, 42 U.S.C.
§ 1973    passim

Voting Rights Act of 1965, § 11, 42 U.S.C.
§ 1973i     4-5

Voting Rights Act of 1965, § 14, 42 U.S.C.
§ 1973/       8,10,11

Other Materials

Brief for Respondents, Gregory v. Ashcroft,
No. 90-50 .................................. ......... . . . .  7

S. Rep. No. 97-417 (1982)     12,18,19

Transcript of Oral Argument, Gregory v.
Ashcroft, No. 90-50     8

iv



No. 90-757

In The

Supreme Court o( tfte ®mtcb States
October Term , 1990

Ronald Chisom , et al. ,
Petitioners,

v,

Charles E. Roemer, et al.,
Respondents.

On Writ of Certiorari to the United States 
Court of Appeals for the Fifth Circuit

REPLY BRIEF FOR PETITIONERS

Introduction

The wisdom of Louisiana’s decision to select the 

members of its Supreme Court by popular election is not 

subject to review by this Court. What is subject to federal 

judicial oversight is the process by which that election 

occurs. The sole question presented by this case is 

whether section 2 permits African-American voters to



2

challenge judicial election systems that deny them an equal 

opportunity to participate in the process of choosing 

judges, even when that denial is not the consequence of 

purposeful discrimination.

I. C o n g r e s s  H a s  D e c i s i v e l y  R e j e c t e d  
R e s p o n d e n t s ’ D i s t i n c t i o n  B e t w e e n  
P u r p o s e f u l  a n d  N o n p u r p o s e f u l  
D is c r im in a t io n

As this Court recognized in Thornburg v. Gingles, 478 

U.S. 30, 43-44 (1986), the 1982 amendment to section 2 

"[fjirst and foremost . . . dispositively rejects the position 

of the plurality in Mobile v. Bolden, 446 U.S. 55 (1980), 

which required proof that the contested electoral practice 

or mechanism was adopted or maintained with the intent 

to discriminate against minority voters." Respondents’ 

argument to the contrary-that under subsection 2(a), the 

intent requirement "remains unchanged," Brief for 

Respondents at 17-goes beyond even the bounds of 

overzealous advocacy. The so-called "results" test is 

expressly contained in subsection 2(a), as amended in



3

1982.1 The placement of the "results" language in 

subsection 2(a) also undermines completely another 

suggestion advanced by the court of appeals and 

respondents: that section 2 can be disaggregated into two 

separate tests, one of which governs judicial elections and 

the other of which does not. See LULAC v. Clements, 914 

F.2d at 625 & 628-29; Brief for Respondents at 17-19. 

The language of section 2 provides no warrant for holding 

a particular practice vulnerable to attack if it is 

purposefully discriminatory but immune from attack if it is 

not. Both the court below and respondents concede, as 

they must, that section 2 bars Louisiana from adopting or 

maintaining a judicial election system for the purpose of 

diluting the voting strength of Orleans Parish’s African- 

American citizen. See LULAC v. Clements, 914 F.2d 620, 

625 & n. 6 (5th Cir. 1990) (en banc); Brief for 

Respondents at 1, n.l, and 16. Given that concession and 

the structure of section 2, they have absolutely no basis for

'indeed, the word "results" does not even appear in subsection 
2(b), where respondent suggests it is located. Brief for Respondent 
at 17.



4

claiming that the results test is not similarly broad in its 

coverage.

II. T h e  L a n g u a g e  a n d  St r u c t u r e  o f  t h e  V o t in g  
R ig h t s  A c t , T a k e n  a s  a  W h o l e , C o m p e l  t h e  
C o n c l u s io n  t h a t  Se c t io n  2  C o v e r s  Ju d ic i a l  
E l e c t io n s

The language of section 2 is unconditional in its

prohibition of practices that result in a denial or

abridgement of minority voting rights:

"No voting qualification or prerequisite to voting 
or standard, practice, or procedure shall be 
imposed or applied by any State . . .  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 . . . ."

42 U.S.C. § 1973(a) (emphasis added). When a statute

contains such unambiguous language, courts construing the

statute’s reach must not contract its scope. See West

Virginia University Hospitals v. Casey, 59 U.S.L.W. 4180,

4184 (1991) (No. 89-994). Had Congress meant to confine

section 2’s reach to certain elective offices only, it certainly

knew how to do so. Section 11(c) of the Act, for example,

is limited to elections held solely or in part to fill seven



5

expressly enumerated positions. 42 U.S.C. § 1973i(c). 

Section 2, by contrast, contains no such exclusion.

III. Se c t io n  2 ’s  U s e  o f  t h e  W o r d
"Re p r e s e n t a t iv e s " D o e s  N o t  Ex c l u d e  
Ju d ic i a l  E l e c t io n s

The linchpin of respondents’ argument lies in their 

claim that Congress used the word "representatives" 

intentionally to exempt judicial elections from scrutiny 

under section 2. That argument fails for two independent 

reasons: first, the word "representatives" can permissibly 

be read to include elected state-court judges; second, there 

is no evidence, either in the statute itself or in the 

legislative history that Congress chose the word 

"representatives" to restrict section 2’s scope.

A. Elected State-Court Judges Can Reasonably Be 
Viewed as "Representatives"

Contrary to the assertion made by the court below 

and respondents, see, e.g., LULAC, 914 F.2d at 628; Brief 

for Respondents at 23-29, the word "representatives" does



6

not unambiguously exclude elected state-court judges.

That the word "representative" is not equivalent to the 

term "servant of a constituency" is clear. Jurors, as we 

have already pointed out, are "representatives" of the 

community, even though they are sworn to be impartial. 

See Brief for Petitioners at 56-62.

Moreover, this Court has recognized that state-court 

judges perform a central function in representative 

government. In Sugarman v. Dougall, 413 U.S. 634 (1973), 

Justice Blackmun, writing for eight members of the Court, 

recognized that "persons holding state elective or 

important nonelective executive, legislative, and judicial 

positions . . . perform functions that go to the heart of 

representative government." Id. at 647 (emphasis added).2 

Thus, this Court should construe the word 

"representatives" in subsection 2(b) to refer to officials who 

exercise a function central to the administration of a

2Although then-Justice Rehnquist dissented from the Court’s 
holding in Sugarman-that a New York statute barring nonresident 
aliens from civil services jobs was unconstitutional-he, too, recognized 
that "policy-making for a political community” involved, among other 
people, "judges," Sugarman, 413 U.S. at 661 (emphasis added).



7

representative form of government.

Finally, the states themselves have acknowledged that 

the function state-court judges perform is in many relevant 

respects identical to the functions performed by officials in 

the other branches of government. A particularly salient 

example is presented by the position taken by the state of 

Missouri (with the support of 15 other states as amici 

curiae) in Gregory v. Ashcroft, No. 90-50. In that case, 

Missouri has argued that its judges, who are subject to 

retention elections, are policy-making officials within the 

meaning of the Age Discrimination in Employment Act, 29 

U.S.C. § 630(f): "Judicial decision making . . .  is an 

expression of public policy, no less, and perhaps more, 

compelling than the modes of expression available to the 

legislative and executive branches of government." Brief 

for Respondent at 19, Gregory v. Ashcroft, No. 90-50;3 see

3Ironically, in Houston Lawyers’ Ass’n v. Attorney General of Texas, 
Missouri and many of the same states that supported its claims that 
judges were clearly elected officials and state policy-makers, take the 
position as amici supporting the state of Texas that judges are not 
"really" elected, or are not "really" policy-making officials. It is hard 
to know what sense to make of this abrupt about-face, but it certainly 
casts substantial doubt on the importance of the states’ interests in



8

also, e.g., Transcript of Oral Argument at 30 ("The list of 

decisions from [Missouri] courts that have outlined and 

defined the common law and set the policy for the State 

of Missouri is endless"); id. at 38 (explaining that the 

judges involved are also "elected officials" within the 

meaning of the ADEA because they "do answer to the 

voters").4 In light of the day-to-day functions performed 

by state-court judges, respondents’ reliance in this case on 

statements by various courts and commentators regarding 

the nonrepresentative role played by federal courts, see, 

e.g., Brief for Respondents at 25 & 32 (quoting Northern 

Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50, 58, 60 

(1982), Mistretta v. United States, 488 U.S. 361, 407 (1989), 

the late Alexander Bickel, and Robert Bork), is sadly off

retaining at-large election systems for judges when such systems would 
be subject to attack if they involved any other office when the states 
cannot even agree whether judges are in fact different from other 
officials. Quite frankly, it suggests the states’ purported interests are 
rather tenuous or pretextual.

4Every court to have addressed the question has held that judges 
who initially obtain office through popular elected are exempted from 
the ADEA because they are "persons elected to public office," 29 
U.S.C. § 630(f), a phrase whose language tracks in pertinent part the 
language of section 14(c)(1) of the Voting Rights Act.



9

the mark.

B. Congress’ Use of the Word "Representatives" 
Was Not Intended to Exempt Judicial Elections 
from Section 2

Petitioners recognize, of course, that although the 

word "representatives" clearly can include judges, there are 

circumstances under which it might be used in a more 

restrictive fashion. For example, large parts of Title 2 of 

the United States Code use the word "Representatives" to 

refer solely to members of the lower house of the United 

States Congress or in contrast to "Senators." No one, 

however, contends that Congress used the word 

"representatives" in section 2 to restrict its scope to 

members of the United States House of Representatives, 

or even to members of the lower house of bicameral 

legislative bodies. Everyone agrees that county 

commissioners and school board members are covered by 

section 2. Indeed, Congress’ use of the word 

"representatives" rather than the word used by this Court 

in White v. Regester, 412 U.S. 755 (1973)-"legislatorsM-



10

shows that Congress intended for section 2 to reach more 

than simply elections for members of the legislative branch 

of state governments.

Congress’ express intention, therefore, was to cover 

elections beyond those for legislators. The interchangeable 

words used by Congress, in the statute and in the 

legislative history, to refer to the positions within the 

purview of section 2--"representatives," "candidates," 

"elected officials," "officeholders," and the like, see Brief for 

Petitioners at 41-42; Brief for the United States at 27-30- 

provide no basis for distinguishing those non-legislative 

offices that are primarily executive in nature and those 

that are predominantly judicial. Section 2’s language 

tracks precisely the terminology used in the definitional 

provision of the Act-section 14(c)(l)-which, as we 

explained in our opening brief, unambiguously includes 

judges. Section 14(c)(1) extends the Act’s reach to 

elections for all "candidates for public . . . office." 42 

U.S.C. § 1973/(c)(l) (emphasis added). Similarly, section 

2 provides, in delineating the results test, that "[t]he extent



11

to which members of a protected class have been elected 

to office" is one circumstance to be considered in deciding 

whether the plaintiffs’ voting rights have been violated. 42 

U.S.C. § 1973(b) (emphasis added). It would have made 

no sense for Congress to have viewed the extent to which 

minority group members have been elected to judicial 

office as a relevant circumstance5 in assessing a section 2 

claim if such elections were not covered by the statute. 

Moreover, the immediate juxtaposition of the words 

"representatives" and "office" shows how Congress used 

these terms interchangeably to refer to all officials holding 

elective positions.

Given the categorical language used both in section 2 

and in section 14(c)(1), this Court should be especially 

reluctant to imbue the word "representatives" with a 

restrictive meaning in the complete and utter absence of

5That Congress saw minority electoral success in judicial elections 
as a significant indicator is shown by its repeated references to the 
number of elected African-American and Hispanic jurists in the 
legislative history of the 1970, 1975, and 1982 amendments and 
extensions of the Voting Rights Act. See Brief for Petitioners at 37- 
39; Brief for the United States at 31.



12

any explicit or implicit indication of a congressional 

purpose to adopt such a meaning. That various policy 

concerns might have led Congress to have exempted 

judicial elections from coverage under section 2 "had it 

thought about it," West Virginia University Hospital, 59 

U.S.L.W. at 4184, cannot justify this Court’s judicial 

construction of such an exemption through a tortured 

reading of the statutory language.

C. Congress’ Expressed Intentions Are Fully 
Consistent with Including Judicial Elections 
Within the Scope of Section 2

The central goal of the Voting Rights Act and its 

extensions and amendments has been "to create a set of 

mechanisms for dealing with continuing voting 

discrimination, not step by step, but comprehensively and 

finally." S. Rep. No. 97-417, p. 5 (1982) [hereafter cited as 

"Senate Report"].6 Any comprehensive and final 

resolution of the problem of race discrimination in voting

"This Court has recognized the "authoritative" nature of the 1982 
Senate Report in discerning Congress’ intent. Thornburg v. Gingles, 
478 U.S. 30, 43 n. 7 (1986).



13

must reach race discrimination in the mechanisms used to 

elect judges for, as this Court reiterated a fortnight ago, 

"[t]he Fourteenth Amendment’s mandate that race 

discrimination be eliminated from all official acts and 

proceedings of the State is most compelling in the judicial 

system." Powers v. Ohio, 59 IJ.S.L.W. 4268, 4272 (1991) 

(No. 89-5011).

As Powers recognized, the two "most significant 

opportunities] to participate in the democratic process" 

enjoyed by most citizens are voting and jury service. Id. at 

4270. But just as racial discrimination in the selection of 

jurors "offends the dignity of persons and the integrity of 

the courts," id. at 4269, so, too, with racial discrimination 

in the election of judges. To permit states to use systems 

for electing judges that deny African-Americans an 

effective voice tells African-American citizens that their 

views regarding who should sit in judgment over the entire 

community are not worthy of the respect accorded the 

views of white voters, thereby denying African-Americans 

equal dignity. Moreover, it cannot help but breed cynicism



14

regarding the fairness of the judicial system as a whole to 

have a bench so overtly unrepresentative of the community 

whose power it exercises.

Nothing in the language or legislative history of the 

Voting Rights Act supports excluding judicial elections 

from coverage under section 2. In light of the 

unconditional ban on discriminatory voting mechanisms, 

the inclusionary language, and the clear congressional 

purpose to abolish all racial discrimination in voting, the 

most logical and defensible reading of section 2 would 

reach the kind of discrimination alleged in this case.

IV. R e s p o n d e n t s  F u n d a m e n t a l l y  M is c o n s t r u e  
t h e  F ir s t  P r o n g  o f  T h o r n b u r g  v . G in g l e s

In Thornburg v. Gingles, 478 U.S. at 48 (emphasis 

added), this Court identified three circumstances which 

"generally'' must be shown to prove a claim of "vote 

dilution through submergence."7 The first of these factors

7Nothing in the Gingles opinion suggests that these three factors 
must be established to prove every claim under section 2’s "results" 
test. For example, even in a community where there is no racial bloc 
voting, the use of registration practices that disproportionately prevent



15

is that "the minority group must be able to demonstrate 

that it is sufficiently large and geographically compact to 

constitute a majority in a single-member district. If it is 

not, . . .  the multimember form of the district cannot be 

responsible for minority voters’ inability to elect its [y/c] 

candidates." 478 U.S. at 50 (emphasis in original). Read 

in context, what the first prong of the Gingles test requires 

is that plaintiffs challenging a scheme as dilutive show a 

causal link between the election practice they challenge 

and their inability to elect the candidates of their choice.

Contrary to respondents’ assertion, Brief for 

Respondents at 41, the test set out in the first prong of 

Gingles does not invariably require presentation of a 

hypothetical single-member district complying with 

principles of one-person, one vote. Rather, the first prong

African-Americans from voting and thus participating in the political 
process is subject to challenge under section 2. Similarly, even in a 
community where African-Americans could not form a majority in a 
single-member district, the use of an anti-single-shot rule, see, e.g., City 
of Rome v. United States, 446 U.S. 156, 184 (1980) (explaining single­
shot voting), might be subject to attack under section 2 if the 
interaction of that rule with racial bloc voting resulted in the defeat 
of African-American candidates who might otherwise win election.



16

of Gingles requires plaintiffs simply to show the existence 

of a constitutionally acceptable alternative to the existing 

scheme that would provide them with a more equal 

opportunity to participate and elect the candidates of their 

choice. This is a case-specific question "peculiarly 

dependent on the facts in each case," Gingles, 478 U.S. at 

79 (internal quotation marks omitted); its contours depend 

on the precise aspects and consequences of the election 

structure challenged by plaintiffs in their complaint. In the 

case of petitioners’ to the scheme for electing the 

Louisiana Supreme Court, such an alternative can be 

demonstrated by showing that African-American voters are 

sufficiently numerous and geographically compact to form 

a majority in a district equivalent in population to already 

existing Louisiana Supreme Court districts. Thus, 

petitioners showed that it would be possible to create a 

majority African-American supreme court district that 

would be more populous than two of the five existing 

single-member Supreme Court Districts. See Pet. App. at 

10a. Respondents’ suggestion that without the constraints



17

of one-person, one-vote, there is no judicially discernible 

and manageable standard for assessing claims of racial 

vote dilution, Brief for Respondents at 43, ignores this 

obvious method for assessing plaintiffs’ ability to establish 

dilution through submergence.8 Even if states are not 

obligated to develop equipopulous districts as a remedy for 

racial vote dilution in judicial elections, certainly a showing 

that an identifiable group of minority voters has less 

opportunity to elect the candidates of its choice than a 

similarly numerous group of white voters should satisfy the 

first prong of Gingles. See Brief for the United States as 

Amicus Curiae Supporting Reversal in Houston Lawyers’ 

Ass’n v. Attorney General of Texas at 18 ("Group vote 

dilution occurs when the practical operation of an electoral 

system effectively erases or minimizes the voting strength 

of a particular group, such as a racial minority."). As we 

discuss in the following section, the remedy issue does not 

define the violation, but should be addressed by the trial

sSee infra note 9.



18

court only after a finding of liability.

V. R e s p o n d e n t ’s B r ie f  A d v a n c e s  A r g u m e n t s  
Ir r e l e v a n t  t o  t h e  Q u e s t io n  P r e s e n t e d  in  t h is  
Ca s e

Respondents devote a substantial part of their 

argument to issues connected with developing a remedy 

for a violation of section 2. See Brief for Respondents at 

34-39. Those concerns are irrelevant to the question 

before this Court: the scope of section 2’s coverage.

First, Congress has clearly provided that a state’s 

nondiscriminatory interests cannot trump the compelling 

constitutional aim of the Voting Rights Act: to eradicate 

racial discrimination in voting. See Senate Report at 29 n. 

117 ("even a consistently applied practice premised on a 

racially neutral policy would not negate a plaintiffs 

showing through other factors that the challenged practice 

denies minorities fair access to the process"); id. at 195 

(additional views of Sen. Robert Dole, sponsor and drafter 

of amended subsection 2(b)) (rejecting the suggestion that 

"defendants be permitted to rebut a showing of



19

discriminatory results by a showing of some 

nondiscriminatory purpose behind the challenged voting 

practice or structure").

That is not to say, of course, that a state’s legitimate 

interests are wholly irrelevant to a section 2 case. But the 

proper occasion for accommodating those interests is in 

fashioning a remedy, not in determining liability. In its 

current posture, this case does not present the question 

whether any particular remedy is required. Should 

petitioners prevail on remand in proving that their voting 

rights are being diluted by the present election scheme, 

Louisiana will, in the first instance, have the opportunity to 

propose a new system that both remedies the denial of 

petitioners’ voting rights and serves the state’s legitimate 

interests. Such a remedy "necessarily dependfs] upon 

widely varied proof and local circumstances," and Congress 

has eschewed "prescribing in the statute mechanistic rules 

for formulating remedies . . . ." Senate Report at 31. 

Thus, remedial concerns cannot form the basis for a 

categorical exclusion of judicial elections from coverage



20

under section 2.

Second, the remedial concerns identified in 

respondents’ brief are an utter makeweight in this case, 

further showing why such concerns cannot justify a 

categorical exclusion of judicial elections. For example, 

respondents identify as "[pjossibly the most difficult" 

problems to solve those related to the creation of 

additional judgeships and population changes. Brief for 

Respondents at 37. But Louisiana has not added

judgeships to its Supreme Court in this century. Nor has 

it changed the judicial election districts for the Supreme 

Court since at least 1921. Thus, neither of these 

"problems" has any bearing whatsoever on this case. 

Louisiana is entirely free to retain its seven-member 

Supreme Court. And the inapplicability of one-person, 

one-vote to judicial districts frees the state from the need 

to redraw its supreme court districts decennially.9

9As we have already explained, the feasibility of creating a majority 
African-American district whose population is equivalent to the so- 
called "ideal” district size may be relevant to establishing liability, for 
it is one way of satisfying the causal nexus test delineated in Gingles. 
But it is by no means required that the state’s remedy, should liability



21

The problem of actual or perceived bias if justices are 

elected from "much smaller" districts, Brief for 

Respondents at 38, is an equally flimsy concern. The 

division of the existing First Supreme Court District used 

by petitioners at trial to show how the current district 

submerged Orleans Parish’s African-American majority in 

an overwhelmingly white multimember district would 

result, if it were adopted as a remedy, in the creation of 

two districts, each have a population of well over half a 

million persons, and each having over 100,000 more 

residents than one of the existing single-member Supreme 

Court Districts. See Pet. App. at 10a.

At their core, the assertions about impartiality 

advanced by respondents, see, e.g., Brief for Respondents 

at 38 7 49-50, and by the Solicitor General at the tail end 

of his brief, see Brief for the United States at 35, are 

deeply racially insulting. They suggest implicitly that 

supreme court justices selected by African-American voters

be proven, comport with one-person, one-vote. The state remains free 
to accommodate other goals, so long as a complete remedy for the 
violation of section 2 has been provided.



22

will somehow be less impartial than justices selected by 

white voters. Permitting states to defend their existing 

judicial election systems by relying on such a pernicious 

stereotype is utterly unacceptable. Cf. Powers v. Ohio, 59 

U.S.L.W. at 4271 (the equal protection clause forbids using 

race as a "proxy for determining juror bias or 

competence"); Batson v. Kentucky, 478 U.S. 79, 97 (1986) 

(prosecutors may not strike jurors based "on the 

assumption . . .  or intuitive judgment. . . that they would 

be partial to the defendant because of their shared race"). 

The central premise of the Fourteenth and Fifteenth 

Amendments, as well as of the Voting Rights Act of 1965, 

especially as it was amended in 1982, is that African- 

American voters are as qualified as white voters to 

participate in the process of choosing public officials and 

that African-American jurists are are able as their white 

counterparts to fulfill their oath of office.



23

C o n c l u s io n

For the foregoing reasons, this Court should reverse 

the judgment of the court of appeals and remand this case 

for further proceedings consistent with its opinion.

Respectfully submitted,

W illiam P. Quigley 
901 Convention Center 

Blvd.
Fulton Place, Suite 119 
New Orleans, LA 70130 
(504) 524-0016

Roy Rodney, Jr . 
McGlinchey, Stafford, ' 
Mintz, Cellini, Lang 
643 Magazine Street 
New Orleans, LA 70130 
(504) 586-1200

Pamela S. Karlan 
University of Virginia 

School of Law 
Charlottesville, VA 22901 
(804) 924-7810

*Counsel of Record

Julius LeVonne Chambers 
*Charles Stephen Ralston 

D ayna L. Cunningham 
Sherrilyn A. Ifill 

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

Ronald L. W ilson 
310 Richards Building 
837 Gravier Street 
New Orleans, LA 70112 
(504) 525-4361

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

Attorneys for Petitioners