Court Opinion

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SUPREME 

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COURT OF THE UNITED STATES 
OFFICE OF THE CLERK 
WASHINGTON, DC 20543 

WILLIAM K. SUTER, 
CLERK OF THE COURT 

AREA CODE 202 
479-3011 

June 20, 1991 

Gilbert F. Ganucheau, Clerk 
United States Court of Appeals 
for the Fifth Circuit 
600 Camp Street, Room 100 
New Orleans, Louisiana 70130 

Re: 90-813 - Houston Lawyers' Association, et al. v. 
Attorney General of Texas, et al.; and 90-974 - League 
of United Latin American Citizens, et al. v. Attorney 
General of Texas, et al. Your Docket Number: 

90-8014) 
  

Dear Mr. Ganucheau: 

The enclosed 
today in the above 

The judgment 
days from the date 

  

Opinion of this Court was announced 
consolidated cases. 

will issue after the expiration of 25 
of the Opinion unless a timely petition 

for rehearing is filed. 

Very truly yours, 

WILLIAM K. SUTER 

CLERK 

Sandy Nelsen 
Assistant Clerk 

Julius L. Chambers, fea Vv 
William L. Garrett, Esq. 
Renea Hicks, Esq. 
Robert H. Mow, Jr., Esq. 

J. Eugene Clements, Esq. 
Seagal V. Wheatley, Esq.  



  

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 
being done in connection with this case, at the time the opinion is issued. 
The syllabus constitutes no part of the opinion of the Court but has been pre- 
per by the Reporter of Decisions for the convenience of the reader. See 

nited States v. Detroit Lumber Co., 200 U. S. 821, 837. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

HOUSTON LAWYERS’ ASSOCIATION ET AL. v. ATTOR- 

NEY GENERAL OF TEXAS ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 
THE FIFTH CIRCUIT 

No. 90-818. Argued April 22, 1991 —Decided June 20, 1991* 

Texas district courts are the State’s trial courts of general jurisdiction. 
Their judges are elected from electoral districts consisting of one or more 
entire counties. The number of judges in each district varies, but each 
is elected by voters in the district in which he or she sits, pursuant to an 
at-large, district-wide scheme, and must be a resident of that district. 

Although several judicial candidates in the same district may be running 
in the same election, each runs for a separately numbered position. In 
the primary, the winner must receive a majority of votes, but in the gen- 
eral election the candidate with the highest number of votes for a par- 
ticular numbered position is elected. Petitioners in No. 90-974, local 
chapters of the League of United Latin American Citizens —an organiza- 
tion composed of Mexican-American and African-American Texas resi- 
dents and others —filed suit in the District Court against respondents, 
the State Attorney General and other officials, alleging that the electoral 
scheme in 10 counties diluted the voting strength of African-American 
and Hispanic voters in violation of, inter alia, § 2 of the Voting Rights 
Act of 1965. Petitioners in No. 90-813 —the Houston Lawyers’ Associa- 
tion, an organization of African-American attorneys registered to vote in 
one of the 10 counties, and others —intervened in support of the original 
plaintiffs. The District Court ruled in petitioners’ favor and granted in- 
terim relief for the 1990 election. The Court of Appeals reversed, hold- 
ing that judicial elections are not covered by §2. A separate opinion 
concurring in the judgment agreed that elections for single-member of- 

*Together with No. 90-974, League of United Latin American Citizens 
et al. v. Attorney General of Texas et al., also on certiorari to the same 
court. 

I 

 



  

iI HOUSTON LAWYERS’ ASSN. v. TEXAS ATTORNEY GEN. 

Syllabus 

fices, such as the district judgeships, are exempt from §2. According to 
that opinion, a district court judge, unlike an appellate judge who acts as 
a member of a collegial body, is a single-office holder who has jurisdiction 
that is coextensive with the geographic area from which he or she is 
elected and has authority to render final decisions independently of other 
judges serving in the same area or on the same court. The concurrence 
concluded that exemption from § 2 of elections for district judges is justi- 
fied, given the State’s compelling interest in linking jurisdiction and elec- 
tive base for judges acting alone, and given the risk that attempting to 
break that linkage might lessen minority influence by making only a few 
judges principally accountable to the minority electorate rather than 
making all of them partly accountable to minority voters. 

Held: The Act’s coverage encompasses the election of executive officers 
and trial judges whose responsibilities are exercised independently in an 
area coextensive with the districts from which they are elected. Once a 
State decides to elect its trial judges, those elections must be conducted 
in compliance with the Act, since judicial elections are not categorically 
excluded from coverage. Chisom v. Roemer, ante, p. ——. The state 
interest expressed in the concurring opinion below does not justify ex- 
cluding single-member offices from § 2’s coverage. Rather, it is a legiti- 
mate factor to be considered by courts in determining whether, based on 
the “totality of circumstances,” a vote dilution violation has occurred or 
may be remedied. Pp. 5-8. 

914 F. 2d 620, reversed and remanded. 

STEVENS, J., delivered the opinion of the Court, in which WHITE, MAR- 
SHALL, BLACKMUN, O'CONNOR, and SOUTER, JJ., joined. SCALIA, J., 
filed a dissenting opinion, in which REHNQUIST, C. J., and KENNEDY, J., 

joined. 

 



NOTICE: This opinion is subject to formal revision before publication in the 
prelimi print of the United States Reports. Readers are requested to 
notify the Reporter of Decisions, Supreme Court of the United States, Wash- 
ington, D. C. 20543, of any typographical or other formal errors, in order 
that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

Nos. 90-813 AND 90-974 

HOUSTON LAWYERS’ ASSOCIATION, ET AL., 
PETITIONERS 

90-813 2. 
ATTORNEY GENERAL OF TEXAS, ET AL. 

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, 
ET AL., PETITIONERS 

90-974 0 
ATTORNEY GENERAL OF TEXAS, ET AL. 

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

[June 20, 1991] 

JUSTICE STEVENS delivered the opinion of the Court. 

In Chisom v. Roemer, ante, at ——, we held that judicial 

elections, and, more specifically, elections of justices of the 
Supreme Court of Louisiana, are covered by § 2 of the Voting 
Rights Act of 1965, 79 Stat. 437, as amended in 1982, 42 
U. S. C. §1973. In this case we consider whether the stat- 
ute also applies to the election of trial judges in Texas. We 
hold that it does. 

I 

Petitioners in No. 90-974 are local chapters of the League 
of United Latin American Citizens, a statewide organization 
composed of both Mexican-American and African-American 
residents of the State of Texas, and various individuals. 

They brought this action against the Attorney General of 
Texas and other officials (respondents) to challenge the exist- 
ing at-large, countywide method of electing state district 
judges. Although the original challenge encompassed the 
entire State, and relied on both constitutional and statutory  



  

90-813 & 90-974—OPINION 

2 HOUSTON LAWYERS’ ASSN. v. TEXAS ATTORNEY GEN. 

grounds, the issues were later narrowed to include only a 
statutory challenge to the voting methods in just 10 coun- 
ties.* Petitioners in No. 90-813 are the Houston Lawyers’ 
Association, an organization of African-American attorneys 
who are registered voters in Harris County, and certain indi- 
viduals; they are intervenors, supporting the position of the 
original plaintiffs. Because all of the petitioners have the 
same interest in the threshold issue of statutory construction 
that is now before us, we shall refer to them collectively as 
“petitioners.” 

Texas district courts are the State’s trial courts of general 
jurisdiction. Electoral districts for Texas district judges 
consist of one or more entire counties. Eight of the districts 
included in this case include a single county; the other district 
includes two counties. The number of district judges in each 
district at issue varies from the 59 that sit in the Harris 
County district to the 3 that sit in the Midland County dis- 
trict. Each judge is elected by the voters in the district in 
which he or she sits pursuant to an at-large, district-wide 
electoral scheme, and must be a resident of that district. Al- 

though several judicial candidates in the same district may be 
running in the same election, each runs for a separately num- 
bered position. Thus, for example, if there are 25 vacancies 
in the Harris County district in a particular year, there are 25 
district-wide races for 25 separately numbered positions. In 
the primary elections, the winner must receive a majority of 
votes, but in the general election the candidate with the high- 
est number of votes for a particular numbered position is 
elected. 

Petitioners challenged the at-large, district-wide electoral 
scheme as diluting the voting strength of African American 
and Hispanic voters. They cited the example of Harris 
County, which has a population that is 20% African American 
but has only 3 of 59 district judges that are African Ameri- 

*The counties at issue are: Harris, Dallas, Tarrant, Bexar, Travis, Jef- 

ferson, Lubbock, Crosby, Ector, and Midland. 

 



  

90-813 & 90-974—OPINION 

HOUSTON LAWYERS’ ASSN. v. TEXAS ATTORNEY GEN. 3 

can. The petitioners alleged that alternative electoral 
schemes using electoral subdistricts or modified at-large 
structures could remedy the dilution of minority votes in dis- 
trict judge elections. 

Following a one-week trial, the District Court ruled in 
favor of petitioners on their statutory vote dilution claim. It 
concluded that petitioners had sustained their burden of 
proving that under the totality of the circumstances “as a re- 
sult of the challenged at large system [they] do not have an 
equal opportunity to participate in the political processes and 
to elect candidates of their choice,” App. to Pet. for Cert., 
290a-291a; 300a-301a. Although the District Court made no 
findings about the appropriate remedy for the proven viola- 
tion, it urged the state legislature to select and approve an 
alternative district judge election scheme. The District 
Court also announced that it would entertain motions to en- 
join future district judge elections pending the remedy phase 
of the litigation, should the legislature fail to adopt an alter- 
native election scheme. When the state legislature failed to 
act, the District Court granted interim relief (to be used 
solely for the 1990 election of district judges in the nine dis- 
tricts) that included the creation of electoral subdistricts and 
a prohibition against the use of partisan elections for district 
judges. Respondents appealed. 

A three-judge panel of the Fifth Circuit reversed the judg- 
ment of the District Court, 902 F. 2d 293 (1990), and petition- 

ers’ motion for rehearing en banc was granted, 902 F. 2d 322 
(1990). The en banc majority held that the results test in §2 
of the Voting Rights Act of 1965, as amended in 1982, is inap- 
plicable to judicial elections. See 914 F. 2d 620 (1990). In 
essence, the majority concluded that Congress’ reference to 
the voters’ opportunity to elect “representatives” of their 
choice evidenced a deliberate decision to exclude the election 
of judges from scrutiny under the newly enacted test. For 
reasons stated in our opinion in Chisom, ante, at ——, we re- 

ject that conclusion. 

 



  

90-813 & 90-974—OPINION 

4 HOUSTON LAWYERS’ ASSN. v. TEXAS ATTORNEY GEN. 

In a separate opinion, portions of which were joined by five 
other judges, Judge Higginbotham expressed his disagree- 
ment with the majority’s conclusion that judges are not “rep- 
resentatives” within the meaning of the Act, but concurred in 
the judgment of reversal. His opinion relied on a distinction 
between state appellate judges and trial judges. Whereas 
the justices of the Louisiana Supreme Court have statewide 
jurisdiction, even though they are elected by voters in sepa- 
rate districts, and act as members of a collegial body, the 
Texas trial judge has jurisdiction that is coextensive with the 
geographic area from which he or she is elected and has the 
sole authority to render final decisions. Judge Higgin- 
botham’s opinion characterized trial judges “as single-office 
holders instead of members of a multi-member body,” 914 F. 
2d, at 649 (concurring opinion), because each exercises his or 
her authority independently of the other judges serving in 
the same area or on the same court. Given the State’s “com- 
pelling interest in linking jurisdiction and elective base for 
judges acting alone,” id., at 651, and the risk that “attempt- 
ing to break the linkage of jurisdiction and elective base . . . 
may well lessen minority influence instead of increase it,” id., 

at 649, by making only a few district court judges principally 
accountable to the minority electorate rather than making all 
of the district’s judges partly accountable to minority voters, 
he concluded that elections for single-member offices, includ- 
ing elections for Texas district court judgeships, are exempt 
from vote dilution challenges under §2. 

Chief Judge Clark, while agreeing with the judgment of re- 
versal on grounds “expressly limited to the facts of the 
present case,” 914 F. 2d 631 (concurring opinion), disagreed 
with the analysis in both the majority and the concurring 
opinion. He expressed the opinion that “it is equally wrong 
to say that section 2 covers all judicial elections as it is to say 
it covers none,” id., at 633 (emphasis in original). Charac- 

terizing Judge Higginbotham’s “function-of-the-office analy- 
sis” as “identical in concept to the majority view,” ibid., Chief 

 



  

90-813 & 90-974—OPINION 

HOUSTON LAWYERS’ ASSN. v. TEXAS ATTORNEY GEN. § 

Judge Clark would have held that whenever an officeholder’s 
jurisdiction and the area of residence of his or her electorate 
coincide, no vote dilution claims may be brought against at- 
large schemes for electing the officeholder, regardless of 
whether the “function” of the officeholder is to act alone or as 
a member of a collegial body. 

In a dissenting opinion, Judge Johnson argued that the Act 
applies to all judicial elections: 

“Several truths are self-evident from the clear lan- 
guage of the statute that had heretofore opened the elec- 
toral process to people of all colors. The Voting Rights 
Act focuses on the voter, not the elected official. The 

Act was intended to prohibit racial discrimination in all 
voting, the sole inquiry being whether the political proc- 
esses are equally open to all persons, no matter their 
race or color. The Act is concerned only with the intent 
of persons of ‘race or color’ in casting a ballot; it has no 
interest in the function of the person holding the office.” 
Id., at 652 (dissenting opinion) (emphasis in original). 

  

IT 

We granted certiorari in these cases, 498 U. S. (1991), 

and in Chisom v. Roemer, ante, p. ——, for the limited pur- 
pose of considering the scope of the coverage of §2. As we 
have held in Chisom, the Act does not categorically exclude 
judicial elections from its coverage. The term “represent- 
atives” is not a word of limitation. Nor can the protection of 
minority voters’ unitary right to an equal opportunity “to 
participate in the political process and to elect represent- 
atives of their choice” be bifurcated into two kinds of claims 
in judicial elections, one covered and the other beyond the 
reach of the Act. Ante, at ——. It is equally clear, in our 
opinion, that the coverage of the Act encompasses the elec- 
tion of executive officers and trial judges whose responsibil- 
ities are exercised independently in an area coextensive with 
the districts from which they are elected. If a State decides 

 



90-813 & 90-974— OPINION 

6 HOUSTON LAWYERS’ ASSN. v. TEXAS ATTORNEY GEN. 

to elect its trial judges, as Texas did in 1861, those elections 
must be conducted in compliance with the Voting Rights Act. 

We deliberately avoid any evaluation of the merits of the 
concerns expressed in Judge Higginbotham’s concurring 
opinion because we believe they are matters that are rele- 
vant either to an analysis of the totality of the circumstances 
that must be considered in an application of the results test 
embodied in § 2, as amended, or to a consideration of possible 

remedies in the event a violation is proved, but not to the 
threshold question of the Act’s coverage. Even if we as- 
sume, arguendo, that the State’s interest in electing judges 
on a district-wide basis may preclude a remedy that involves 
redrawing boundaries or subdividing districts, or may even 
preclude a finding that vote dilution has occurred under the 
“totality of the circumstances” in a particular case, that inter- 
est does not justify excluding elections for single-member of- 
fices from the coverage of the § 2 results test. Rather, sucha 
state interest is a factor to be considered by the court in eval- 
uating whether the evidence in a particular case supports a 
finding of a vote dilution violation in an election for a single- 
member office. 

Thus we disagree with respondents that the “single-mem- 
ber office” theory automatically exempts certain elections 
from the coverage of § 2. Rather, we believe that the State’s 
interest in maintaining an electoral system—in this case, 
Texas’ interest in maintaining the link between a district 
judge’s jurisdiction and the area of residency of his or her 
voters—is a legitimate factor to be considered by courts 
among the “totality of circumstances” in determining 
whether a § 2 violation has occurred. A State’s justification 
for its electoral system is a proper factor for the courts to as- 
sess in a racial vote dilution inquiry, and the Fifth Circuit has 
expressly approved the use of this particular factor in the bal- 
ance of considerations. See Zimmer v. McKeithen, 485 F. 

2d 1297, 1305 (CA5 1973), aff’d sub nom. East Carroll Parish 

School Bd. v. Marshall, 424 U. S. 636 (1976). Because the  



90-813 & 90-974— OPINION 

HOUSTON LAWYERS’ ASSN. v. TEXAS ATTORNEY GEN. 7 

State’s interest in maintaining an at-large, district-wide elec- 
toral scheme for single-member offices is merely one factor to 
be considered in evaluating the “totality of circumstances,” 
that interest does not automatically, and in every case, out- 

weigh proof of racial vote dilution. 
Two examples will explain why the “single-member office” 

theory, even if accepted, cannot suffice to place an election 
for a single-member officeholder entirely beyond the cover- 
age of §2 of the Act. First, if a particular practice or proce- 
dure, such as closing the polls at noon, results in an abridg- 
ment of a racial minority’s opportunity to vote and to elect 
representatives of their choice, the Act would unquestionably 
apply to restrict such practices, regardless of whether the 
election was for a single-member officeholder or not. Ex- 
empting elections for single-member offices from the reach of 
§ 2 altogether can therefore not be supported. As we stated 
earlier, this statute does not separate vote dilution challenges 
from other challenges brought under the amended §2. See 
ante, at —. 

Second, if the boundaries of the electoral district —and per- 
haps of its neighboring district as well—were shaped in “an 
uncouth twenty-eight-sided figure” such as that found in 
Gomillion v. Lightfoot, 364 U. S. 339, 340 (1960), and if the 
effect of the configuration were to produce an unnatural dis- 
tribution of the voting power of different racial groups, an 
inquiry into the totality of circumstances would at least argu- 
ably be required to determine whether or not the results test 
was violated. Placing elections for single-member offices en- 
tirely beyond the scope of coverage of §2 would preclude 
such an inquiry, even if the State’s interest in maintaining 
the “uncouth” electoral system was trivial or illusory and 
even if any resulting impairment of a minority group’s voting 
strength could be remedied without significantly impairing 
the State’s interest in electing judges on a district-wide basis. 

Because the results test in § 2 of the Voting Rights Act ap- 
plies to claims of vote dilution in judicial elections, see  



90-813 & 90-974—OPINION 

8 HOUSTON LAWYERS’ ASSN. v. TEXAS ATTORNEY GEN. 

Chisom, ante, at ——, and because the concerns expressed 

by Judge Higginbotham in distinguishing elections of Texas 
district court judges from elections of supreme court justices 
relate to the question whether a vote dilution violation may 
be found or remedied rather than whether such a challenge 
may be brought, we reverse the judgment of the Court of Ap- 
peals and remand the case for further proceedings consistent 
with this opinion. 

It 1s so ordered. 

 



  

SUPREME COURT OF THE UNITED STATES 

Nos. 90-813 AND 90-974 

HOUSTON LAWYERS’ ASSOCIATION, ET AL., 
PETITIONERS 

90-813 . 
ATTORNEY GENERAL OF TEXAS, ET AL. 

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, 
ET AL., PETITIONERS 

90-974 2. 
ATTORNEY GENERAL OF TEXAS, ET AL. 

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

[June 20, 1991] 

JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUS- 

TICE KENNEDY join, dissenting. 

For the reasons stated in my opinion in Chisom v. Ed- 
wards, ante at ——, 1 would not apply §2 of the Voting 
Rights Act to vote dilution claims in judicial elections, and 
would therefore affirm the judgment below. 

 



  

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 
being done in connection with this case, at the time the opinion is issued. 
The syllabus constitutes no part of the opinion of the Court but has been pre- 

by the Reporter of Decisions for the convenience of the reader. See 
United States v. Detroit Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

CHISOM ET AL. v». ROEMER, GOVERNOR OF 
LOUISIANA, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 
THE FIFTH CIRCUIT 

No. 90-757. Argued April 22, 1991 —Decided June 20, 1991* 

The Louisiana Supreme Court consists of seven members, two of whom are 

elected at-large from one multimember district, with the remainder 
elected from single-member districts. Petitioners in No. 90-757 repre- 
sent a class of black registered voters in Orleans Parish, which is the 
largest of the four parishes in the multimember district and contains 
about half of the district’s registered voters. Although more than one- 
half of Orleans Parish’s registered voters are black, over three-fourths of 
the voters in the other three parishes are white. Petitioners filed an 
action in the District Court against respondents, the Governor and state 
officials, alleging that the method of electing justices from their district 
impermissibly dilutes minority voting strength in violation of, inter alia, 

§ 2 of the Voting Rights Act of 1965. As amended in 1982, § 2(a) prohib- 
its the imposition of a voting qualification or prerequisite or standard, 
practice, or procedure that “results in a denial or abridgement of the 
right . . . to vote on account of race or color,” and § 2(b) states that the 
test for determining the legality of such a practice is whether, “based on 
the totality of circumstances,” minority voters “have less opportunity 
than other members of the electorate to participate in the political proc- 
ess and to elect representatives of their choice.” (Emphasis added.) 
The United States, petitioner in No. 90-1032, subsequently intervened 

to support petitioners’ claims, and the District Court ultimately ruled 
against petitioners on the merits. However, the Court of Appeals fi- 
nally remanded the case with directions to dismiss the complaint in light 
of its earlier en banc decision in League of United Latin American Citi- 

*Together with No. 90-1032, United States v. Roemer, Governor of 
Louisiana, et al., also on certiorari to the same court. 

I 

 



CHISOM ». ROEMER 

Syllabus 

zens Council No. 4434 v. Clements, 914 F. 2d 620 (LULAC), that judi- 

cial elections are not covered under § 2 of the Act as amended. There, 
the court distinguished between claims involving the opportunity to par- 

ticipate in the political process and claims involving the opportunity to 
elect representatives of minority voters’ choice, holding that § 2 applied 
to judicial elections with respect to claims in the first category, but that 
because judges are not “representatives,” the use of that term excludes 
judicial elections from claims in the second category. 

Held: Judicial elections are covered by § 2 as amended. Pp. 10-22. 
(a) As originally enacted, §2 was coextensive with the Fifteenth 

Amendment, and it is undisputed that it applied to judicial elections. 

The 1982 amendment expanded §2's protection by adopting a results 
test, thus eliminating the requirement that proof of discriminatory intent 
is necessary to prove a § 2 violation, and by adding § 2(b), which provides 

guidance about how to apply that test. Had Congress also intended to 
exclude judicial elections, it would have made its intent explicit in the 

statute or identified or mentioned it in the amendment’s unusually exten- 

sive legislative history. Pp. 10-14. 
(b) The results test is applicable to all § 2 claims. The statutory text 

and this Court's cases foreclose LULAC’s reading of §2. If the word 
“representatives” placed a limit on § 2's coverage for judicial elections, it 
would exclude all claims involving such elections, for the statute requires 

that all claims must allege an abridgement of the opportunity both to 
participate in the political process and to elect representatives of one’s 
choice. Thus, rather than creating two separate and distinct rights, the 
statute identifies two inextricably linked elements of a plaintiff’s burden 

of proof. See, e. g., White v. Regester, 412 U. S. 755. Pp. 14-16. 
(c) The word “representatives” describes the winners of represent- 

ative, popular elections, including elected judges. Although LULAC 

correctly noted that judges need not be elected, when they are, it seems 

both reasonable and realistic to characterize the winners as represent- 
atives of the districts in which they reside and run. The legislative his- 

tory provides no support for the arguments that the term “represent- 
atives” includes only legislative and executive officials or that Congress 

would have chosen the word “candidates” had it intended to apply the 

vote dilution prohibition to judicial elections. Pp. 17-20. 

(d) Adopting respondents’ view of coverage would lead to the anoma- 
lous result that a State covered by §5 of the Act would be precluded 

from implementing a new voting procedure having discriminatory effects 
with respect to judicial elections, Clark v. Roemer, 500 U. S. —, but a 

similarly discriminatory system already in place could not be challenged 

under §2. P. 20.  



  

CHISOM v. ROEMER III 

Syllabus 

(e) That the one-person, one-vote rule is inapplicable to judicial elec- 
tions, Wells v. Edwards, 409 U. S. 1095, does not mean that judicial 
elections are entirely immune from vote dilution claims. Wells rejected 
a constitutional claim and, thus, has no relevance to a correct interpreta- 

tion of this statute, which was enacted to provide additional protection 
for voting rights not adequately protected by the Constitution itself. 
Cf. City of Rome v. United States, 446 U. S. 156, 172-183. Pp. 20-21. 

917 F. 2d 187, reversed and remanded. 

STEVENS, J., delivered the opinion of the Court, in which WHITE, MAR- 
SHALL, BLACKMUN, O’CONNOR, and SOUTER, JJ., joined. SCALIA, J., 
filed a dissenting opinion, in whch REBENQUIST, C. J., and KENNEDY, J., 
joined. KENNEDY, J., filed a dissenting opinion. 

 



  

NOTICE: This opinion is subject to formal revision before publication in the 
prelimi print of the United States Reports. Readers are requested to 
notify the Reporter of Decisions, Supreme Court of the United States, Wash- 
ington, D. C. 20648, of any typographical or other formal errors, in order 
that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

Nos. 90-757 AND 90-1032 

RONALD CHISOM, ET AL., PETITIONERS 
90-757 . 

CHARLES E. ROEMER, GOVERNOR OF 
LOUISIANA, ET AL. 

UNITED STATES, PETITIONER 
90-1032 2. 

CHARLES E. ROEMER, GOVERNOR OF 
LOUISIANA, ET AL. 

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

[June 20, 1991] 

JUSTICE STEVENS delivered the opinion of the Court. 

The preamble to the Voting Rights Act of 1965 establishes 
that the central purpose of the Act is “[tlo enforce the 
fifteenth amendment to the Constitution of the United 
States.”! The Fifteenth Amendment provides: 

“The right of citizens of the United States to vote shall 
not be denied or abridged by the United States or by any 
State on account of race, color, or previous condition of 
servitude.” U. S. Const., Amdt. 15, § 1. 

In 1982, Congress amended §2 of the Voting Rights Act? to 
make clear that certain practices and procedures that result 

1Pub. L. 89-110, 79 Stat. 437, 42 U. S. C. § 1973 et seq. (1964 ed., Supp. 

D 
Section 2 of the Voting Rights Act of 1965, as amended, now reads: 
“Sec. 2. (a) No voting qualification or prerequisite to voting or standard, 

practice, or procedure shall be imposed 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, 

 



  

90-757 & 90-1032—OPINION 

2 CHISOM v. ROEMER 

in the denial or abridgement of the right to vote are forbidden 

even though the absence of proof of discriminatory intent 

protects them from constitutional challenge. The question 

presented by this case is whether this “results test” protects 
the right to vote in state judicial elections. We hold that the 

coverage provided by the 1982 amendment is coextensive 

with the coverage provided by the Act prior to 1982 and that 
judicial elections are embraced within that coverage. 

I 

Petitioners in No. 90-757 represent a class of approxi- 
mately 135,000 black registered voters in Orleans Parish, 
Louisiana. App. 6-7, 13. They brought this action against 
the Governor and other state officials (respondents) to chal- 
lenge the method of electing justices of the Louisiana 
Supreme Court from the New Orleans area. The United 
States, petitioner in No. 90-1032, intervened to support the 
claims advanced by the plaintiff class. 

The Louisiana Supreme Court consists of seven justices,’ 
five of whom are elected from five single-member Supreme 
Court Districts, and two of whom are elected from one multi- 

member Supreme Court District. Each of the seven mem- 
bers of the court must be a resident of the district from which 

or in contravention of the guarantees set forth in section 4(f)(2), as pro- 

vided in subsection (b). 
“(b) A violation of subsection (a) is established if, based on the totality of 

circumstances, it is shown that the political processes leading to nomina- 
tion 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) 
in that its members have less opportunity than other members of the elec- 
torate to participate in the political 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 considered: Provided, That nothing in this section estab- 
lishes a right to have members of a protected class elected in numbers 
equal to their proportion in the population.” 96 Stat. 134. 

'La. Const., Art. 5, §3; La. Rev. Stat. Ann. §13:101 (West 1983). 
‘La. Const., Art. 5, § 22(A); La. Rev. Stat. Ann. §13:101 (West 1983). 

 



90-757 & 90-1032—OPINION 

CHISOM v. ROEMER 3 

he or she is elected and must have resided there for at least 

two years prior to election. App. to Pet. for Cert. 7a. Each 

of the justices on the Louisiana Supreme Court serves a term 

of 10 years.®* The one multimember district, the First 

Supreme Court District, consists of the parishes of Orleans, 

St. Bernard, Plaquemines, and Jefferson.® Orleans Parish 

contains about half of the population of the First Supreme 

Court District and about half of the registered voters in that 

district. Chisom v. Edwards, 839 F. 2d 1056, 1057 (CA5b 

1988). More than one-half of the registered voters of Or- 

leans Parish are black, whereas more than three-fourths of 

the registered voters in the other three parishes are white. 

App. 8. 
Petitioners allege that “the present method of electing two 

Justices to the Louisiana Supreme Court at-large from the 

New Orleans area impermissibly dilutes minority voting 

strength” in violation of § 2 of the Voting Rights Act. Id., at 

9. Furthermore, petitioners claimed in the courts below 

that the current electoral system within the First Supreme 

Court District violates the Fourteenth and Fifteenth Amend- 

ments of the Federal Constitution because the purpose and 

effect of this election practice “is to dilute, minimize, and can- 

cel the voting strength” of black voters in Orleans Parish. 
Ibid. Petitioners seek a remedy that would divide the First 
District into two districts, one for Orleans Parish and the sec- 

ond for the other three parishes. If this remedy were 
adopted, the seven members of the Louisiana Supreme Court 
would each represent a separate single-member judicial dis- 

trict, and each of the two new districts would have approxi- 

mately the same population. Id., at 8. According to peti- 

tioners, the new Orleans Parish district would also have a 

majority black population and majority black voter registra- 

tion. Id., at 8, 47. 

5La. Const., Art. 5, §3. 
*La. Const., Art. 5, §4; La. Rev. Stat. Ann. §13:101 (West 1983).  



90-757 & 90-1032—OPINION 

CHISOM v. ROEMER 

The District Court granted respondents’ motion to dismiss 

the complaint. Chisom v. Edwards, 659 F. Supp. 183 (ED 

La. 1987). It held that the constitutional claims were insuffi- 

cient because the complaint did not adequately allege a spe- 

cific intent to discriminate. Id., at 189. With respect to the 

statutory claim, the court held that §2 is not violated unless 
there is an abridgement of minority voters’ opportunity “to 
elect representatives of their choice.” Id., at 186-187. The 
court concluded that because judges are not “represent- 

atives,” judicial elections are not covered by §2. Id., at 187. 
The Court of Appeals for the Fifth Circuit reversed. 

Chisom v. Edwards, 839 F. 2d 1056, cert. denied sub nom. 

Roemer v. Chisom, 488 U. S. 955 (1988). Before beginning 
its analysis, the court remarked that “[ilt is particularly sig- 
nificant 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 dis- 
tricts.” 839 F. 2d, at 1058. After agreeing with the re- 
cently announced opinion in Mallory v. Eyrich, 839 F. 2d 275 
(CA6 1988), it noted that the broad definition of the terms 

“voting” and “vote” in § 14(c)(1) of the original Act expressly 

included judicial elections within the coverage of §2.” It also 

14Section 14(c)(1), which defines ‘voting’ and ‘vote’ for purposes of the 
Act, sets forth the types of election practices and elections which are 
encompassed within the regulatory sphere of the Act. Section 14(cX1) 

states, 

“The terms ‘vote’ or ‘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 properly and included in the appropri- 
ate totals of votes cast with respect to candidates for public or party 
office 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; therefore, section 2, by its express 
terms, extends to state judicial elections. This truly is the only construc-  



  

90-757 & 90-1032—OPINION 

CHISOM v. ROEMER 5 

recognized Congress’ explicit intent to expand the coverage 

of §2 by enacting the 1982 amendment. 839 F. 2d, at 1061.° 

Consistent with Congress’ efforts to broaden coverage under 

the Act, the court rejected the State’s contention that the 

term “representatives” in the 1982 amendment was used as a 

word of limitation. Id., at 1063 (describing State’s position 

as “untenable”). Instead, the court concluded that repre- 

sentative “‘denotes anyone selected or chosen by popular 

election from among a field of candidates to fill an office, in- 
cluding judges.”” Ibid. (quoting Martin v. Allain, 658 F. 
Supp. 1183, 1200 (SD Miss. 1987)). The court buttressed its 
interpretation by noting that “section 5 and section 2, virtu- 
ally companion sections, operate in tandem to prohibit dis- 
criminatory practices in voting, whether those practices orig- 
inate in the past, present, or future.” 839 F. 2d, at 1064. It 
also gleaned support for its construction of §2 from the fact 
that the Attorney General had “consistently supported an ex- 
pansive, not restrictive, construction of the Act.” Ibid. Fi- 

nally, the court held that the constitutional allegations were 
sufficient to warrant a trial, and reinstated all claims. Id., 

at 1065.° 

tion consistent with the plain language of the Act.” Chisom v. Edwards, 
839 F. 2d, at 1059-1060. 

8«Tt is difficult, if not impossible, for this Court to conceive of Congress, 
in an express attempt to expand the coverage of the Voting Rights Act, to 
have in fact amended the Act in a manner affording minorities less protec- 
tion from racial discrimination than that provided by the Constitution. . 
[Slection 2 necessarily embraces 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 at- 
tain in amending section 2; that is, to expand the protection of the Act.” 

Id., at 1061. 
* After remand, but before trial, plaintiffs (here petitioners) moved for a 

preliminary injunction, enjoining the October 1, 1988 election for one of the 
two Louisiana Supreme Court seats from the First Supreme Court Dis- 
trict. The District Court granted plaintiffs’ motion, having found that 
they satisfied the four elements required for injunctive relief. Chisom v. 
Edwards, 690 F. Supp. 15624, 1531 (ED La. 1988). The Court of Appeals, 

 



  

90-757 & 90-1032—OPINION 

6 CHISOM ». ROEMER 

After the case was remanded to the District Court, the 

United States filed a complaint in intervention in which it al- 
leged that the use of a multimember district to elect two 
members of the Louisiana Supreme Court is a “standard, 
practice or procedure” that “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.” App. 48. After a 
nonjury trial, however, the District Court concluded that the 
evidence did not establish a violation of § 2 under the stand- 
ards set forth in Thornburg v. Gingles, 478 U. S. 30 (1986). 
App. to Pet. for Cert. 62a. The District Court also dis- 
missed the constitutional claims. Id., at 63a—64a. Petition- 

ers and the United States appealed. While their appeal was 
pending, the Fifth Circuit, sitting en banc in another case, 
held that judicial elections were not covered under §2 of the 
Act as amended. League of United Latin American Citi- 
zens Council No. 4434 v. Clements, 914 F. 2d 620 (1990) 

(hereinafter LULAC). 
The majority in LULAC concluded that Congress’ use of 

the word “representatives” in the phrase “to elect represent- 
atives of their choice” in § 2(b) of the Act indicated that Con- 
gress did not intend to authorize vote dilution claims in judi- 
cial elections. The en banc panel reached this conclusion 
after considering (1) the “precise language” of the Amend- 
ment, id., at 624; (2) the character of the judicial office, with 

special emphasis on “the cardinal reason that judges need not 
be elected at all,” id., at 622; and (3) the fact that the one- 
person, one-vote rule had been held inapplicable to judicial 
elections before 1982, id., at 626. 

however, vacated the preliminary injunction and ordered that the election 
proceed as scheduled. Chisom v. Roemer, 853 F. 2d 1186, 1192 (CAS 

1988). It reasoned that if the election were enjoined, the resulting uncer- 
tainty would have a deleterious effect on the Louisiana Supreme Court and 
the administration of justice that would outweigh any potential harm plain- 
tiffs might suffer if the election went forward. Id., at 1190-1192. 

 



  

90-757 & 90-1032—OPINION 

CHISOM ». ROEMER 7 

The precise language of §2 on which the LULAC majority 
focused provides that a violation of §2 is established if the 
members of a protected class: 

“have less opportunity than other members of the elec- 
torate to participate in the political process and to elect 
representatives of their choice.” Id., at 625 (quoting 42 
U. S. C. §1973(b)). 

Noting that this language protects both the “the broad and 
general opportunity to participate in the political process and 
the specific one to elect representatives,” LULAC, 914 F. 2d, 
at 625, the court drew a distinction between claims involving 
tests or other devices that interfere with individual participa- 
tion in an election, on the one hand, and claims of vote dilu- 

tion that challenge impairment of a group’s opportunity to 
elect representatives of their choice, on the other hand. The 
majority assumed that the amended §2 would continue to 
apply to judicial elections with respect to claims in the first 
category, see ibid., but that the word “representatives” ex- 
cludes judicial elections from claims in the second category. 
See 1d., at 625-628. 

In the majority’s view, it was “factually false” to char- 
acterize judges as representatives because public opinion is 
“irrelevant to the judge’s role,” id., at 622; “the judiciary 
serves no representative function whatever: the judge repre- 
sents no one.” Id., at 625. The majority concluded that 
judicial offices “are not ‘representative’ ones, and their 
occupants are not representatives.” Id., at 631. Thus, 
Congress would not have used the word “representatives,” as 
it did in §2(b) of the Act, if it intended that subsection to 
apply to vote dilution claims in judicial elections. 

The majority also assumed that Congress was familiar with 
Wells v. Edwards, 347 F. Supp. 4563 (MD La. 1972), sum- 
marily aff’d, 409 U. S. 1095 (1973), a reapportionment case in 
which the District Court held that “the concept of one-man, 
one-vote apportionment does not apply to the judicial branch 
of the government.” Wells, 347 F. Supp., at 454. The ex- 

 



  

90-757 & 90-1032—OPINION 

8 CHISOM v. ROEMER 

press reference in the Senate Report to the fact that the 

“‘principle that the right to vote is denied or abridged by di- 

lution of voting strength derives from the one-person, one- 

vote reapportionment case of Reynolds v. Sims, [377 U. S. 

533 (1964)],’” LULAC, 914 F. 2d, at 629 (quoting S. Rep. 

No. 97-417, p. 19 (1982)), persuaded the majority that, in 

light of the case law holding that judges were not represent- 

atives in the context of one-person, one-vote reapportion- 

ment cases, see LULAC, 914 F. 2d., at 626 (citing cases), 

Congress would not have authorized vote dilution claims in 

judicial elections without making an express, unambiguous 

statement to that effect. 
Following the en banc decision in LULAC, the Court of 

Appeals remanded this case to the District Court with direc- 

tions to dismiss the complaint. App. to Pet. for Cert. 1a-3a 

(per curiam). It expressed no opinion on the strength of 

petitioners’ evidentiary case. We granted certiorari, 498 

U.S. — (1991), and set the case for argument with 

LULAC, see post, at —. 

II 

Our decision today is limited in character, and thus, it is 

useful to begin by identifying certain matters that are not in 

dispute. No constitutional claims are before us. Unlike 

Wells v. Edwards," White v. Regester,”* and Mobile v. Bol- 

den,” this case presents us solely with a question of statutory 

1 Petitioners did not seek review in this Court of the disposition of their 

constitutional claims. Brief for Petitioners 8, n. 2; Brief for United States 

4, n. 2; Tr. of Oral Arg. 27. 

1409 U. S. 1095 (1973), aff’g 347 F. Supp. 453 (MD La. 1972) (whether 

election of State Supreme Court Justices by district violated the Equal 

Protection Clause of the Fourteenth Amendment). 

12412 U. S. 755 (1973) (whether population differential among districts 

established a prima facie case of invidious discrimination under the Equal 

Protection Clause of the Fourteenth Amendment). 

13446 U.S. 55 (1980) (whether at-large system of municipal elec- 

tions violated black voters’ rights under the Fourteenth and Fifteenth 

Amendments). 

 



90-757 & 90-1032— OPINION 

CHISOM ». ROEMER 9 

construction. That question involves only the scope of the 

coverage of §2 of the Voting Rights Act as amended in 1982. 

We therefore do not address any question concerning the ele- 

ments that must be proved to establish a violation of the Act 

or the remedy that might be appropriate to redress a viola- 

tion if proved. 
It is also undisputed that §2 applied to judicial elections 

prior to the 1982 amendment, and that § 5 of the amended 

statute continues to apply to judicial elections, see Clark v. 

Roemer, 500 U. S. —— (1991). Moreover, there is no ques- 

tion that the terms “standard, practice, or procedure” are 

broad enough to encompass the use of multimember districts 

to minimize a racial minority’s ability to influence the out- 

come of an election covered by §2.** The only matter in dis- 

pute is whether the test for determining the legality of such a 

practice, which was added to the statute in 1982, applies in 

judicial elections as well as in other elections. 

4 See Brief for Respondents 16; Tr. of Oral Arg. 42. 
¥ In Gomillion v. Lightfoot, 364 U. S. 339 (1960), the Court held that a 

Local Act redefining the boundaries of the city of Tuskegee, Alabama, vio- 

lated the Fifteenth Amendment. In his opinion for the Court, Justice 

Frankfurter wrote: 

“The opposite conclusion, urged upon us by respondents, would sanction 
the achievement by a State of any impairment of voting rights whatever so 
long as it was cloaked in the garb of the realignment of political subdi- 

visions.” Id., at 345. 

“A statute which is alleged to have worked unconstitutional deprivations of 
petitioners’ rights is not immune to attack simply because the mechanism 
employed by the legislature is a redefinition of municipal boundaries. Ac- 
cording to the allegations here made, the Alabama Legislature has not 
merely redrawn the Tuskegee city limits with incidental inconvenience to 
the petitioners; it is more accurate to say that it has deprived the petition- 
ers of the municipal franchise and consequent rights and to that end it has 
incidentally changed the city’s boundaries. While in form this is merely an 
act redefining metes and bounds, if the allegations are established, the in- 

escapable human effect of this essay in geometry and geography is to de- 
spoil colored citizens, and only colored citizens, of their theretofore enjoyed 

voting rights.” Id., at 347.  



  

90-757 & 90-1032—OPINION 

10 CHISOM ». ROEMER 

ITI 

The text of §2 of the Voting Rights Act as originally 

enacted read as follows: 

“SEC. 2. No voting qualification or prerequisite to vot- 

ing, 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.” 79 Stat. 437. 

The terms “vote” and “voting” were defined elsewhere in the 

Act to include “all action necessary to make a vote effective 

in any primary, special, or general election.” §14(c)(1) of 

the Act, 79 Stat. 445 (emphasis added). The statute further 

defined vote and voting as “votes cast with respect to candi- 

dates for public or party office and propositions for which 

votes are received in an election.” Ibid. 

At the time of the passage of the Voting Rights Act of 

1965, § 2, unlike other provisions of the Act, did not provoke 

significant debate in Congress because it was viewed largely 

as a restatement of the Fifteenth Amendment. See H. R. 

Rep. No. 439, 89th Cong., 1st Sess., 23 (1965) (§2 “grants 

. . . aright to be free from enactment or enforcement of vot- 

ing qualifications . . . or practices which deny or abridge the 

right to vote on account of race or color”); see also S. Rep. 

No. 162, 89th Cong., 1st Sess., pt. 3, pp. 19-20 (1965). This 

Court took a similar view of §2 in Mobile v. Bolden, 446 

U. S. 55, 60-61 (1980). There, we recognized that the cover- 

age provided by § 2 was unquestionably coextensive with the 

coverage provided by the Fifteenth Amendment; the provi- 

sion simply elaborated upon the Fifteenth Amendment. 

Ibid. Section 2 protected the right to vote, and it did so 

without making any distinctions or imposing any limitations 

as to which elections would fall within its purview. As At- 

torney General Katzenbach made clear during his testimony 

 



  

90-757 & 90-1032—OPINION 

CHISOM v». ROEMER 11 

before the House, “[e]very election in which registered elec- 
tors are permitted to vote would be covered” under §2.* 

The 1965 Act made it unlawful “to deny or abridge” the 
right to vote “on account of race or color.” 79 Stat. 437. 
Congress amended §2 in 1975" by expanding the original 
prohibition against discrimination “on account of race or 
color” to include non-English speaking groups. It did this by 
replacing “race or color” with “race or color, or in contraven- 
tion of the guarantees set forth in section 4(f)(2)” of the Act. 
89 Stat. 402.% The 1982 amendment further expanded the 
protection afforded by §2. 

Justice Stewart’s opinion for the plurality in Mobile v. 
Bolden, supra, which held that there was no violation of 

either the Fifteenth Amendment or §2 of the Voting Rights 
Act absent proof of intentional discrimination, served as the 
impetus for the 1982 amendment. One year after the deci- 
sion in Mobile, Chairman Rodino of the House Judiciary 
Committee introduced a bill to extend the Voting Rights Act 
and its bilingual requirements, and to amend §2 by striking 
out “to deny or abridge” and substituting “in a manner which 
results in a denial or abridgment of.” The “results” test 
proposed by Chairman Rodino was incorporated into S. 

“Hearings on H. R. 6400 and Other Proposals To Enforce the 15th 
Amendment to the Constitution of the United States before Subcommittee 
No. 5 of the House Committee on the Judiciary, 89th Cong., 1st Sess., 21 

(1965). 
“Pub. L. 94-73, 89 Stat. 400. 
2 The 1975 amendment added a new subsection to § 4 of the Act. The 

new subsection reads in part as follows: 
“(f)(1) The Congress finds that voting discrimination against citizens of 

language minorities is pervasive and national in scope. Such minority citi- 
zens are from environments in which the dominant language is other than 

English. . .. 
“@2) No voting qualification or prerequisite to voting, or standard, prac- 

tice, or procedure shall be imposed or applied by any State or political sub- 
division to deny or abridge the right of any citizen of the United States to 
vote because he is a member of a language minority group.” 89 Stat. 401. 

¥H. R. 8112, 97th Cong., 1st Sess. (1981) (emphasis added). 

 



  

90-757 & 90-1032— OPINION 

12 CHISOM v. ROEMER 

1992,% and ultimately into the 1982 amendment to §2, and is 

now the focal point of this litigation. 
Under the amended statute, proof of intent is no longer re- 

quired to prove a §2 violation. Now plaintiffs can prevail 
. under §2 by demonstrating that a challenged election prac- 

tice has resulted in the denial or abridgement of the right to 
vote based on color or race. Congress not only incorporated 
the results test in the paragraph that formerly constituted 
the entire § 2, but also designated that paragraph as subsec- 
tion (a) and added a new subsection (b) to make clear that an 
application of the results test requires an inquiry into “the 
totality of the circumstances.”® The full text of §2 as 
amended in 1982 reads as follows: 

» “The objectives of S. 1992, as amended, are as follows: (1) to extend 
the present coverage of the special provisions of the Voting Rights Act, 
Sections 4, 5, 6, 7 and 8; (2) to amend Section 4(a) of the Act to permit 
individual jurisdictions to meet a new, broadened standard for termination 
of coverage by those special provisions; (3) to amend the language of Sec- 
tion 2 in order to clearly establish the standards intended by Congress for 
proving a violation of that section; (4) to extend the language-assistance 
provisions of the Act until 1992; and (5) to add a new section pertaining to 
Sonne assistance for voters who are blind, disabled, or illiterate. 

. 1992 amends Section 2 of the Voting Rights Act of 1965 to prohibit 
any voting practice, or procedure [that] results in discrimination. This 
amendment is designed to make clear that proof of discriminatory intent is 
not required to establish a violation of Section 2. It thereby restores the 
legal standards, based on the controlling Supreme Court precedents, which 
applied in voting discrimination claims prior to the litigation involved in 
Mobile v. Bolden. The amendment also adds a new subsection to Section 
2 which delineates the legal standards under the results test by codifying 
the leading pre-Bolden vote dilution case, White v. Regester. 

“This new subsection provides that the issue to be decided under the re- 
sults test is whether the political processes are equally open to minority 
voters. The new subsection also states that the section does not establish 

a right to proportional representation.” S. Rep. No. 97-417, p. 2 (1982) 
(footnotes omitted). 

2 “The amendment to the language of Section 2 is designed to make clear 
that plaintiffs need not prove a discriminatory purpose in the adoption or 

 



  

90-757 & 90-1032—OPINION 

CHISOM v. ROEMER 13 

“SEC. 2. (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 ac- 
count of race or color, or in contravention of the guaran- 
tees set forth in section 4(f)(2), as provided in subsection 

(b). 
“(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 pro- 
tected by subsection (a) in that its members have less 
opportunity than other members of the electorate to par- 
ticipate in the political process and to elect represent- 
atives 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 
considered: Provided, That nothing in this section estab- 
lishes a right to have members of a protected class 
elected in numbers equal to their proportion in the popu- 
lation.” 96 Stat. 134. 

maintenance of the challenged system of practice in order to establish a vi- 
olation. Plaintiffs must either prove such intent, or, alternatively, must 
show that the challenged system or practice, in the context of all the cir- 

cumstances in the juridiction in question, results in minorities being denied 
equal access to the political process. 

“The ‘results’ standard is meant to restore the pre-Mobile legal standard 
which governed cases challenging election systems or practices as an illegal 
dilution of the minority vote.” Id., at 27 (footnote omitted). 

See also Thornburg v. Gingles, 478 U. S. 30, 83-84 (1986) (O'CONNOR, J., 
concurring in judgment) (“Amended §2 is intended to codify the ‘results’ 
test employed in Whitcomb v. Chavis, 403 U. S. 124 (1971), and White v. 
Regester, 412 U. S. 755 (1973), and to reject the ‘intent’ test propounded in 

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

 



  

90-757 & 90-1032—OPINION 

14 CHISOM v. ROEMER 

The two purposes of the amendment are apparent from its 

text. Subsection 2(a) adopts a results test, thus providing 

that proof of discriminatory intent is no longer necessary to 
establish any violation of the section. Subsection 2(b) pro- 
vides guidance about how the results test is to be applied. 

Respondents contend, and the LULAC majority agreed, 
that Congress’ choice of the word “representatives” in the 
phrase “have less opportunity than other members of the 
electorate to participate in the political process and to elect 
representatives of their choice” in subsection 2(b) is evi- 
dence of congressional intent to exclude vote dilution claims 
involving judicial elections from the coverage of §2. We re- 
ject that construction because we are convinced that if Con- 
gress had such an intent, Congress would have made it ex- 

plicit in the statute, or at least some of the Members would 
have identified or mentioned it at some point in the unusually 
extensive legislative history of the 1982 amendment.? Our 
conclusion is confirmed when we review the justifications of- 
fered by the LULAC majority and respondents in support of 

2 The phrase is borrowed from JUSTICE WHITE's opinion for the Court in 
White v. Regester, 412 U. S. 7565 (1973), which predates Mobile v. Bolden, 
446 U. S. 56 (1980). Congress explained that its purpose in adding subsec- 
tion 2(b) was to “embod[y] the test laid down by the Supreme Court in 
White.” S. Rep. No. 97-417, at 27. In White, the Court said that the 
“plaintiffs’ burden is to produce evidence . . . that [the minority group’s] 
members had less opportunity than did other residents in the district to 
participate in the political processes and to elect legislators of their choice.” 

412 U. S., at 766. 
# Congress’ silence in this regard can be likened to the dog that did not 

bark. See A. Doyle, Silver Blaze, in The Complete Sherlock Holmes 335 
(1927). Cf. Harrison v. PPG Industries, Inc., 446 U. S. 578, 602 (1980) 
(REHNQUIST, J., dissenting) (“In a case where the construction of legisla- 
tive language such as this makes so sweeping and so relatively unorthodox 
a change as that made here, I think judges as well as detectives may take 
into consideration the fact that a watchdog did not bark in the night”). 
See also American Hospital Assn. v. NLRB, — U. S. — (1991) (slip 

op., at 6-7). 

 



90-757 & 90-1032—OPINION 

CHISOM ». ROEMER 15 

their construction of the statute; we address each of their 

main contentions in turn. 

IV 

The LULAC majority assumed that § 2 provides two dis- 
tinct types of protection for minority voters —it protects their 
opportunity “to participate in the political process” and their 
opportunity “to elect representatives of their choice.” See 
LULAC, 914 F. 2d, at 625. Although the majority inter- 
preted “representatives” as a word of limitation, it assumed 
that the word eliminated judicial elections only from the lat- 
ter protection, without affecting the former. Id., at 625, 

629. In other words, a standard, practice, or procedure in a 
judicial election, such as a limit on the times that polls are 
open, which has a disparate impact on black voters’ opportu- 
nity to cast their ballots under § 2, may be challenged even if 
a different practice that merely affects their opportunity to 
elect representatives of their choice to a judicial office may 
not. This reading of § 2, however, is foreclosed by the statu- 

tory text and by our prior cases. 
Any abridgement of the opportunity of members of a pro- 

tected class to participate in the political process inevitably 
impairs their ability to influence the outcome of an election. 
As the statute is written, however, the inability to elect rep- 
resentatives of their choice is not sufficient to establish a 
violation unless, under the totality of the circumstances, it 
can also be said that the members of the protected class have 
less opportunity to participate in the political process. The 
statute does not create two separate and distinct rights. 
Subsection (a) covers every application of a qualification, 
standard, practice, or procedure that results in a denial or 

abridgement of “the right” to vote. The singular form is also 
used in subsection (b) when referring to an injury to mem- 
bers of the protected class who have less “opportunity” than 
others “to participate in the political process and to elect rep- 
resentatives of their choice.” 42 U. S. C. §1973 (emphasis 
added). It would distort the plain meaning of the sentence  



90-757 & 90-1032—OPINION 

16 CHISOM ». ROEMER 

to substitute the word “or” for the word “and.” Such radical 
surgery would be required to separate the opportunity to 
participate from the opportunity to elect. 

The statutory language is patterned after the language 
used by JUSTICE WHITE in his opinions for the Court in White 
Vv. Regester, 412 U. S. 755 (1973) and Whitcomb v. Chavis, 
403 U. S. 124 (1971). See n. 22, supra. In both opinions, 
the Court identified the opportunity to participate and the 
opportunity to elect as inextricably linked. In White v. 
Regester, the Court described the connection as follows: “The 
plaintiffs’ burden is to produce evidence . . . that its mem- 
bers had less opportunity than did other residents in the dis- 
trict to participate in the political processes and to elect legis- 
lators of their choice.” 412 U. S., at 766 (emphasis added). 
And earlier, in Whitcomb v. Chavis, the Court described the 

plaintiffs’ burden as entailing a showing that they “had less 
opportunity than did other. . . residents to participate in the 
political processes and to elect legislators of their choice.” 
403 U. S., at 149 (emphasis added). 

The results test mandated by the 1982 amendment is appli- 
cable to all claims arising under §2. If the word “represent- 
atives” did place a limit on the coverage of the Act for judicial 
elections, it would exclude all claims involving such elections 
from the protection of §2. For all such claims must allege an 
abridgement of the opportunity to participate in the political 
process and to elect representatives of one’s choice. Even if 
the wisdom of Solomon would support the LULAC majority’s 

“The dissent argues that our literal reading of the word “and” leads to 
the conclusion that a small minority has no protection against infringe- 
ments of its right “to participate in the political process” because it will al- 
ways lack the numbers necessary “to elect its candidate,” post, at 6. This 

argument, however, rests on the erroneous assumption that a small group 
of voters can never influence the outcome of an election. 

5 See also Reynolds v. Sims, 377 U. S. 533, 565 (1964) (“Full and effec- 
tive participation by all citizens in state government requires, therefore, 
that each citizen have an equally effective voice in the election of members 

of his state legislature”).  



  

90-757 & 90-1032— OPINION 

CHISOM ». ROEMER 17 

proposal to preserve claims based on an interference with the 
right to vote in judicial elections while eschewing claims 
based on the opportunity to elect judges, we have no author- 
ity to divide a unitary claim created by Congress. 

Vv 

Both respondents and the LULAC majority place their 
principal reliance on Congress’ use of the word “represent- 
atives” instead of “legislators” in the phrase “to participate in 
the political process and to elect representatives of their 
choice.” 42 U. S. C. §1973. When Congress borrowed the 
phrase from White v. Regester, it replaced “legislators” with 
“representatives.”® This substitution indicates, at the very 
least, that Congress intended the amendment to cover more 
than legislative elections. Respondents argue, and the ma- 
jority agreed, that the term “representatives” was used to 
extend § 2 coverage to executive officials, but not to judges. 
We think, however, that the better reading of the word “rep- 

resentatives” describes the winners of representative, popu- 
lar elections. If executive officers, such as prosecutors, 

sheriffs, state attorneys general, and state treasurers, can be 

considered “representatives” simply because they are chosen 

*The word “representatives” rather than “legislators” was included in 
Senator Robert Dole’s compromise, which was designed to assuage the 
fears of those Senators who viewed the House's version, H. R. 3112, as an 

invitation for proportional representation and electoral quotas. Senator 
Dole explained that the compromise was intended both to embody the be- 
lief “that a voting practice or procedure which is discriminatory in result 
should not be allowed to stand, regardless of whether there exists a dis- 
criminatory purpose or intent” and to “delineat[e] what legal standard 
should apply under the results test and clariffy] that it is not a mandate 
for proportional representation.” Hearings on S. 53 et al. before the Sub- 
committee on the Constitution of the Senate Committee on the Judiciary, 
97th Cong., 2d Sess., 60 (1982). Thus, the compromise was not intended 
to exclude any elections from the coverage of subsection (a), but simply to 
make clear that the results test does not require the proportional election 
of minority candidates in any election. 

 



  

90-757 & 90-1032—OPINION 

18 CHISOM v. ROEMER 

by popular election, then the same reasoning should apply to 
elected judges.” 

Respondents suggest that if Congress had intended to have 
the statute’s prohibition against vote dilution apply to the 
election of judges, it would have used the word “candidates” 
instead of “representatives.” Brief for Respondents 20, and 
n. 9. But that confuses the ordinary meaning of the words. 
The word “representative” refers to someone who has pre- 
vailed in a popular election, whereas the word “candidate” re- 
fers to someone who is seeking an office. Thus, a candidate 
is nominated, not elected. When Congress used “candidate” 
in other parts of the statute, it did so precisely because it was 
referring to people who were aspirants for an office. See, 
e.g., 42 U. S. C. §1971(b) (“any candidate for the office of 
President”), §1971(e) (“candidates for public office”), 

§1973i(c) (“any candidate for the office of President”), 
§ 1973i(e)(2) (“any candidate for the office of President”), 
§ 1973l(c) (“candidates for public or party office”), § 1973ff-2 
(“In the case of the offices of President and Vice President, a 

vote for a named candidate”), § 1974 (“candidates for the of- 
fice of President”), §1974e (“candidates for the office of 
President”). 

The LULAC majority was, of course, entirely correct in 
observing that “judges need not be elected at all,” 914 F. 2d, 
at 622, and that ideally public opinion should be irrelevant to 

# Moreover, this Court has recently recognized that judges do engage in 
policymaking at some level. See Gregory v. Ashcroft, — U. S. —, 
—— (1991) (slip op., at —) (“It may be sufficient that the appointee is in 
a position requiring the exercise of discretion concerning issues of public 
importance. This certainly describes the bench, regardless of whether 
judges might be considered policymakers in the same sense as the execu- 
tive or legislature”). A judge brings to his or her job of interpreting texts 
“a well-considered judgment of what is best for the community.” Id., at 
—— (slip op., at —). As the concurrence notes, Justice Holmes and 
Justice Cardozo each wrote eloquently about the “policymaking nature of 
the judicial function.” Id., at — (slip op., at —) (WHITE, J., concur- 
ring in part, dissenting in part, and concurring in judgment). 

 



  

90-757 & 90-1032—OPINION 

CHISOM ». ROEMER 19 

the judge’s role because the judge is often called upon to dis- 
regard, or even to defy, popular sentiment. The Framers of 
the Constitution had a similar understanding of the judicial 
role, and as a consequence, they established that Article III 
judges would be appointed, rather than elected, and would be 
sheltered from public opinion by receiving life tenure and sal- 
ary protection. Indeed, these views were generally shared 
by the States during the early years of the Republic.® Loui- 
siana, however, has chosen a different course. It has de- 

cided to elect its judges and to compel judicial candidates to 
vie for popular support just as other political candidates do. 

The fundamental tension between the ideal character of the 
judicial office and the real world of electoral politics cannot be 
resolved by crediting judges with total indifference to the 
popular will while simultaneously requiring them to run for 
elected office. When each of several members of a court 
must be a resident of a separate district, and must be elected 
by the voters of that district, it seems both reasonable and 
realistic to characterize the winners as representatives of 
that district. Indeed, at one time the Louisiana Bar Associ- 

ation characterized the members of the Louisiana Supreme 
Court as representatives for that reason: “Each justice and 
judge now in office shall be considered as a representative of 
the judicial district within which is situated the parish of his 
residence at the time of his election.”® Louisiana could, of 

%See generally Winters, Selection of Judges —An Historical Introduc- 
tion, 44 Texas L. Rev. 1081, 1082-1083 (1966). 

® “Financing a campaign, soliciting votes, and attempting to establish 
charisma or name identification are, at the very least, unseemly for judicial 
candidates” because “it is the business of judges to be indifferent to popu- 
larity.” Stevens, The Office of an Office, Chicago Bar Rec. 276, 280, 281 

(1974). 
® Louisiana State Law Institute, Projet of a Constitution for the State of 

Louisiana with Notes and Studies 1039 (1954) (1921 Report of the Louisi- 
ana Bar Association submitted to the Louisiana Constitutional Conven- 
tion). The editors of the project explained that they included the 1921 
Report because “on the major issues involved in revising the judicial provi- 

 



  

90-757 & 90-1032—OPINION 

20 CHISOM v. ROEMER 

course, exclude its judiciary from the coverage of the Voting 
Rights Act by changing to a system in which judges are ap- 
pointed, and in that way, it could enable its judges to be indif- 
ferent to popular opinion. The reasons why Louisiana has 
chosen otherwise are precisely the reasons why it is appro- 
priate for § 2, as well as § 5, of the Voting Rights Act to con- 
tinue to apply to its judicial elections. 

The close connection between §2 and §5 further under- 
mines respondents’ view that judicial elections should not be 
covered under §2. Section 5 requires certain States to sub- 
mit changes in their voting procedures to the District Court 
of the District of Columbia or to the Attorney General for 
preclearance. Section 5 uses language similar to that of §2 
in defining prohibited practices: “any voting qualification or 
prerequisite to voting, or standard, practice, or procedure 
with respect to voting.” 42 U. S. C. §1973c. This Court 
has already held that § 5 applies to judicial elections. Clark 
v. Roemer, 500 U. S. — (1991). If §2 did not apply to ju- 
dicial elections, a State covered by §5 would be precluded 
from implementing a new voting procedure having discrimi- 
natory effects with respect to judicial elections, whereas a 
similarly discriminatory system already in place could not be 
challenged under §2. It is unlikely that Congress intended 
such an anomalous result. 

VI 

Finally, both respondents and the LULAC majority sug- 
gest that no judicially manageable standards for deciding 
vote dilution claims can be fashioned unless the standard is 
based on the one-person, one-vote principle.® They reason 

sions of the present constitution, it offers many proposals, that even after 
the passage of thirty years, still merit serious consideration. Of particular 
interest are the procedures for the selection, retirement and removal of 

judges. . ..” Id., at 1035. 
“The “one-person, one-vote” principle was first set forth in Gray v. 

Sanders, 372 U. S. 368, 379, 381 (1963): 

 



  

90-757 & 90-1032— OPINION 

CHISOM v. ROEMER 21 

that because we have held the one-person, one-vote rule in- 

applicable to judicial elections, see Wells v. Edwards, 409 

U. S. 1095 (1973), aff’g 347 F. Supp., at 454, it follows that 

judicial elections are entirely immune from vote dilution 

claims. The conclusion, however, does not follow from the 

premise. 
The holding in Wells rejected a constitutional challenge 

based on the Equal Protection Clause of the Fourteenth 
Amendment. It has no more relevance to a correct interpre- 
tation of this statute than does our decision in Mobile v. 
Bolden, 446 U. S. 55 (1980), which also rejected a constitu- 
tional claim. The statute was enacted to protect voting 
rights that are not adequately protected by the Constitution 
itself. Cf. City of Rome v. United States, 446 U. S. 156, 
172-183 (1980). The standard that should be applied in liti- 
gation under § 2 is not at issue here.® Even if serious prob- 
lems lie ahead in applying the “totality of circumstances” de- 

“Once the geographical unit for which a representative is to be chosen is 
designated, all who participate in the election are to have an equal vote— 
whatever their race, whatever their sex, whatever their occupation, what- 
ever their income, and wherever their home may be in that geographical 
unit. This is required by the Equal Protection Clause of the Fourteenth 

Amendment. 

“The conception of political equality from the Declaration of Independence, 
to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nine- 
teenth Amendments can mean only one thing—one person, one vote.” 

Since then, the rule has been interpreted to mean that “each person’s vote 
counts as much, insofar as it is practicable, as any other person’s.” Had- 
ley v. Junior College District, 397 U. S. 50, 54 (1970). 
=We note, however, that an analysis of a proper statutory standard 

under §2 need not rely on the one-person, one-vote constitutional rule. 

See Thornburg v. Gingles, 478 U. S., at 88-89 (O'CONNOR, J., concurring 
in judgment); see also White v. Regester, 412 U. S. 755 (1973) (holding that 
multimember districts were invalid, notwithstanding compliance with one- 

person, one-vote rule). Moreover, Clark v. Roemer, 500 U.S. — 

(1991), the case in which we held that § 5 applies to judicial elections, was a 
vote dilution case. The reasoning in the dissent, see post, at 11-13, if 

valid, would have led to a different result in that case. 

 



  

90-757 & 90-1032—OPINION 

22 CHISOM v. ROEMER 

scribed in §2(b), that task, difficult as it may prove to be, 

cannot justify a judicially created limitation on the coverage 

of the broadly worded statute, as enacted and amended by 

Congress. 
VII 

Congress enacted the Voting Rights Act of 1965 for the 

broad remedial purpose of “rid[ding] the country of racial dis- 

crimination in voting.” South Carolina v. Katzenbach, 383 

U. S. 301, 315 (1966). In Allen v. State Board of Elections, 

393 U. S. 544, 567 (1969), we said that the Act should be in- 

terpreted in a manner that provides “the broadest possible 

scope” in combatting racial discrimination. Congress 

amended the Act in 1982 in order to relieve plaintiffs of the 

burden of proving discriminatory intent, after a plurality of 

this Court had concluded that the original Act, like the 

Fifteenth Amendment, contained such a requirement. See 

Mobile v. Bolden, 446 U. S. 55 (1980). Thus, Congress 

made clear that a violation of § 2 could be established by proof 

of discriminatory results alone. It is difficult to believe that 

Congress, in an express effort to broaden the protection af- 

forded by the Voting Rights Act, withdrew, without com- 
ment, an important category of elections from that protec- 
tion. Today we reject such an anomalous view and hold that 
state judicial elections are included within the ambit of §2 as 

amended. 
The judgment of the Court of Appeals is reversed and the 

case is remanded for further proceedings consistent with this 

opinion. 
It is so ordered. 

 



  

SUPREME COURT OF THE UNITED STATES 

Nos. 90-757 AND 90-1032 

RONALD CHISOM, ET AL., PETITIONERS 
90-757 2. 

CHARLES E. ROEMER, GOVERNOR OF 
LOUISIANA, ET AL. 

UNITED STATES, PETITIONER 
90-1032 . 

CHARLES E. ROEMER, GOVERNOR OF 
LOUISIANA, ET AL. 

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

[June 20, 1991] 

JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUS- 

TICE KENNEDY join, dissenting. 

Section 2 of the Voting Rights Act is not some all-purpose 
weapon for well-intentioned judges to wield as they please in 
the battle against discrimination. It is a statute. I thought 
we had adopted a regular method for interpreting the mean- 
ing of language in a statute: first, find the ordinary meaning 
of the language in its textual context; and second, using es- 
tablished canons of construction, ask whether there is any 
clear indication that some permissible meaning other than the 
ordinary one applies. If not —and especially if a good reason 
for the ordinary meaning appears plain—we apply that ordi- 
nary meaning. See, e. g., West Virginia University Hospi- 
tals, Inc. v. Casey, 499 U. S. —, —— (1991) (slip op., at 
15-16); Demarest v. Manspeaker, 498 U. S. ——, —— (1991) 
(slip op., at 6); United States v. Ron Pair Enterprises, Inc., 
489 U. S. 235, 241 (1989); Pennsylvania Dept. of Public Wel- 
fare v. Davenport, 495 U. S. —, —— (1990) (slip op., at 

 



  

90-757 & 90-1032—DISSENT 

2 CHISOM ». ROEMER 

3-5); Caminetti v. United States, 242 U. S. 470, 485 (1917), 

Public Citizen v. Department of Justice, 491 U. S. 440, 470 
(1989) (KENNEDY, J., concurring in judgment). 

Today, however, the Court adopts a method quite out of 
accord with that usual practice. It begins not with what the 
statute says, but with an expectation about what the statute 

must mean absent particular phenomena (“we are convinced 
that if Congress had . . . an intent [to exclude judges] Con- 

gress would have made it explicit in the statute, or at least 
some of the Members would have identified or mentioned it 
at some point in the unusually extensive legislative history,” 
ante, at 14 (emphasis added)); and the Court then interprets 
the words of the statute to fulfill its expectation. Finding 
nothing in the legislative history affirming that judges were 
excluded from the coverage of § 2, the Court gives the phrase 
“to elect representatives” the quite extraordinary meaning 
that covers the election of judges. 

As method, this is just backwards, and however much we 

may be attracted by the result it produces in a particular 
case, we should in every case resist it. Our job begins with a 
text that Congress has passed and the President has signed. 
We are to read the words of that text as any ordinary 
Member of Congress would have read them, see Holmes, The 
Theory of Legal Interpretation, 12 Harv. L. Rev. 417 (1899), 
and apply the meaning so determined. In my view, that 
reading reveals that §2 extends to vote dilution claims 
for the elections of representatives only, and judges are not 
representatives. 

I 

As the Court suggests, the 1982 amendments to the Voting 
Rights Act were adopted in response to our decision in City 
of Mobile v. Bolden, 446 U. S. 55 (1980), which had held that 
the scope of the original Voting Rights Act was coextensive 
with the Fifteenth Amendment, and thus proscribed inten- 
tional discrimination only. I agree with the Court that that 

 



  

90-757 & 90-1032—DISSENT 

CHISOM ». ROEMER 3 

original legislation, directed towards intentional discrimina- 
tion, applied to all elections, for it clearly said so: 

“No voting qualification or prerequisite to voting, or 
standard, practice, or procedure shall be imposed or ap- 
plied 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.” 79 Stat. 437. 

The 1982 amendments, however, radically transformed the 
Act. As currently written, the statute proscribes inten- 
tional discrimination only if it has a discriminatory effect, but 
proscribes practices with discriminatory effect whether or 
not intentional. This new “results” criterion provides a pow- 
erful, albeit sometimes blunt, weapon with which to attack 
even the most subtle forms of discrimination. The question 
we confront here is how broadly the new remedy applies. 
The foundation of the Court’s analysis, the itinerary for its 
journey in the wrong direction, is the following statement: 
“It is difficult to believe that Congress, in an express effort to 
broaden the protection afforded by the Voting Rights Act, 
withdrew, without comment, an important category of elec- 
tions from that protection.” Ante, at 22. There are two 
things wrong with this. First is the notion that Congress 
cannot be credited with having achieved anything of major 
importance by simply saying it, in ordinary language, in the 
text of a statute, “without comment” in the legislative his- 
tory. As the Court colorfully puts it, if the dog of legislative 
history has not barked nothing of great significance can have 
transpired. Ante, at 14, n. 23. Apart from the question- 
able wisdom of assuming that dogs will bark when something 
important is happening, see 1 T. Livius, The History of Rome 
411-413 (1892) (D. Spillan translation), we have forcefully 
and explicitly rejected the Conan Doyle approach to statu- 
tory construction in the past. See Harrison v. PPG Indus- 
tries, Inc., 446 U. S. 578, 592 (1980) (“In ascertaining the 

meaning of a statute, a court cannot, in the manner of Sher- 

lock Holmes, pursue the theory of the dog that did not 

 



  

90-757 & 90-1032—DISSENT 

4 CHISOM v. ROEMER 

bark”). We are here to apply the statute, not legislative his- 

tory, and certainly not the absence of legislative history. 

Statutes are the law though sleeping dogs lie. See, e. g., 

Sedima, S.P.R.L. v. Imrex Co, 473 U. S. 479, 495-496, n. 13 

(1985); Williams v. United States, 458 U. S. 279, 294-295 

(1982) (MARSHALL, J., dissenting). 

The more important error in the Court's starting-point, 

however, is the assumption that the effect of excluding 

judges from the revised §2 would be to “withdr[aw] . . . an 

important category of elections from [the] protection [of the 

Voting Rights Act].” Ante, at 22. There is absolutely no 

question here of withdrawing protection. Since the pre-1982 

content of §2 was coextensive with the Fifteenth Amend- 

ment, the entirety of that protection subsisted in the Con- 

stitution, and could be enforced through the other provisions 

of the Voting Rights Act. Nothing was lost from the prior 

coverage; all of the new “results” protection was an add-on. 

The issue is not, therefore, as the Court would have it, ante, 

at 14, whether Congress has cut back on the coverage of the 

Voting Rights Act; the issue is how far it has extended it. 

Thus, even if a court’s expectations were a proper basis for 

interpreting the text of a statute, while there would be rea- 

son to expect that Congress was not “withdrawing” protec- 

tion, there is no particular reason to expect that the supple- 

mental protection it provided was any more extensive than 

the text of the statute said. 

What it said, with respect to establishing a violation of the 

amended §2, is the following: 

“A violation . . . is established if . . . it is shown that 

the political processes leading to nomination or election 

.. . are not equally open to participation by members of 

a [protected] class . . . in that its members have less 

opportunity than other members of the electorate to par- 

ticipate in the political process and to elect represent- 

atives of their choice.” 42 U. S. C. §1973(b) (emphasis 

added). 

 



  

90-757 & 90-1032—DISSENT 

CHISOM ». ROEMER 5 

Though this text nowhere speaks of “vote dilution,” Thorn- 
burg v. Gingles, 478 U. S. 30 (1986), understood it to pro- 
scribe practices which produce that result, identifying as the 
statutory basis for a dilution claim the second of the two 
phrases highlighted above —"to elect representatives of their 
choice.”! Under this interpretation, the other highlighted 
phrase— “to participate in the political process” —is left for 
other, non-dilution §2 violations. If, for example, a county 
permitted vote registration for only three hours one day a 
week, and that made it more difficult for blacks to register 
than whites, blacks would have less opportunity “to partici- 
pate in the political process,” than whites, and §2 would 
therefore be violated —even if the number of potential black 
voters was so small that they would on no hypothesis be able 
to elect their own candidate, see Blumstein, Proving Race 

Discrimination, 69 Va. L. Rev. 633, 706-707 (1983). 
The Court, however, now rejects Thornburg’s reading of 

the statute, and asserts that before a violation of §2 can be 

! As the Gingles Court noted, the plaintiffs’ allegation was “that the re- 
districting scheme impaired black citizens’ ability to elect representatives 
of their choice in violation of . . . §2 of the Voting Rights Act,” 478 U. S., 
at 35. See also id., at 46, n. 12 (“The claim we address in this opinion is 

. . . that their ability to elect the representatives of their choice was im- 
paired by the selection of a multimember electoral structure”). And as we 
explained the requirement for recovery in the case: 

“Minority voters who contend that the multimember form of districting vi- 
olates § 2 must prove that the use of a multimember electoral structure op- 
erates to minimize or cancel out their ability to elect their preferred candi- 
dates.” Id., at 48 (emphasis added). ; 

While disagreeing with the Court’s formulation of a remedy, the concur- 
rence acknowledged that this structure underlay the Court’s analysis, 
pointing out that in the Court’s view 

“minority voting strength is to be assessed solely in terms of the minority 
group's ability to elect candidates it prefers. ... Under this approach, 
the essence of a vote dilution claim is that the State has created single- 
member or multi-member districts that unacceptably impair the minority 
group’s ability to elect the candidates its members prefer.” Id., at 88 (em- 
phasis added and deleted). 

 



  

90-757 & 90-1032—DISSENT 

6 CHISOM ». ROEMER 

made out, both conditions of §2(b) must be met. As the 
Court explains, 

“As the statute is written, . . . the inability to elect rep- 
resentatives of their choice is not sufficient to establish a 
violation unless, under the totality of the circumstances, 

it can also be said that the members of the protected 
class have less opportunity to participate in the in the po- 
litical process. The statute does not create two sepa- 
rate and distinct rights. . . . It would distort the plain 
meaning of the sentence to substitute the word “or” for 
the word “and.” Such radical surgery would be re- 
quired to separate the opportunity to participate from 
the opportunity to elect.” Ante, at 15-16. 

This is unquestionably wrong. If both conditions must be vi- 
olated before there is any § 2 violation, then minorities who 
form such a small part of the electorate in a particular juris- 
diction that they could on no conceivable basis “elect repre- 
sentatives of their choice” would be entirely without § 2 pro- 
tection. Since, as the Court’s analysis suggests, the 
“results” test of §2 judges a violation of the “to elect” provi- 
sion on the basis of whether the practice in question prevents 
actual election, then a protected class that with or without 
the practice will be unable to elect its candidate can be denied 
equal opportunity “to participate in the political process” 
with impunity. The Court feels compelled to reach this im- 
plausible conclusion of a “singular right” because the “to par- 
ticipate” clause and the “to elect” clause are joined by the 
conjunction “and.” It is unclear to me why the rules of Eng- 
lish usage require that conclusion here, any more than they 
do in the case of the First Amendment —which reads “Con- 
gress shall make no law . . . abridging . . . the right of the 
people peaceably to assemble, and to petition the Govern- 
ment for a redress of grievances.” This has not generally 
been thought to protect the right peaceably to assemble only 
when the purpose of the assembly is to petition the Govern- 
ment for a redress of grievances. So also here, one is de- 

 



90-757 & 90-1032—DISSENT 

CHISOM ». ROEMER 7 

prived of an equal “opportunity . . . to participate. . . and to 

elect” if either the opportunity to participate or the opportu- 
nity to elect is unequal. The point is in any event not central 
to the present case—and it is sad to see the Court repudiate 
Thornburg, create such mischief in the application of § 2, and 
even cast doubt upon the First Amendment, merely to de- 
prive the State of the argument that elections for judges re- 
main covered by § 2 even though they are not subject to vote 
dilution claims.? 

The Court, petitioners, and petitioners’ amici have labored 
mightily to establish that there is a meaning of “represent- 
atives” that would include judges, see, e. g., Brief for Law- 
yers Committee for Civil Rights as Amicus Curiae 10-11, 
and no doubt there is. But our job is not to scavenge the 

world of English usage to discover whether there is any pos- 
sible meaning of “representatives” which suits our precon- 
ception that the statute includes judges; our job is to deter- 
mine whether the ordinary meaning includes them, and if it 
does not, to ask whether there is any solid indication in the 
text or structure of the statute that something other than or- 
dinary meaning was intended. 

There is little doubt that the ordinary meaning of “repre- 
sentatives” does not include judges, see Webster’s Second 
New International Dictionary 2114 (1950). The Court’s fee- 
ble argument to the contrary is that “representatives” means 
those who “are chosen by popular election.” Ante, at 17-18. 
On that hypothesis, the fan-elected members of the baseball 
All-Star teams are “representatives” —hardly a common, if 
even a permissible, usage. Surely the word “represent- 

*The Court denies this conclusion follows, because, as it claims, it 

“rests on the erroneous assumption that a small group of voters can never 
influence the outcome of an election.” Ante, at 16 n. 24. I make no such 
assumption. I only assume that by “to elect” the statute does not mean 
“to influence,” just as I assume that by “representatives” the statute does 
not mean “judges.” We do not reject Conan Doyle’s method of statutory 
interpretation only to embrace Lewis Carroll's.  



90-757 & 90-1032—DISSENT 

8 CHISOM v. ROEMER 

ative” connotes one who is not only elected by the people, but 
who also, at a minimum, acts on behalf of the people. 
Judges do that in a sense—but not in the ordinary sense. As 
the captions of the pleadings in some States still display, it is 
the prosecutor who represents “the People”; the judge repre- 
sents the Law—which often requires him to rule against the 
People. It is precisely because we do not ordinarily con- 
ceive of judges as representatives that we held judges not 
within the Fourteenth Amendment’s requirement of “one 
person, one vote.” Wells v. Edwards, 347 F.Supp 453 (MD 
La. 1972), aff’d, 409 U. S. 1095 (1973). The point is not that 

a State could not make judges in some senses representative, 
or that all judges must be conceived of in the Article III 
mold, but rather, that giving “representatives” its ordinary 
meaning, the ordinary speaker in 1982 would not have ap- 
plied the word to judges, see Holmes, The Theory of Legal 
Interpretation, 12 Harv. L. Rev. 417 (1899). It remains 
only to ask whether there is good indication that ordinary 
meaning does not apply. 

There is one canon of construction that might be applicable 
to the present case which, in some circumstances, would 

counter ordinary meaning—but here it would only have the 
effect of reinforcing it. We applied that canon to another 
case this Term, concerning, curiously enough, the very same 

issue of whether state judges are covered by the provisions of 
a federal statute. In Gregory v. Ashcroft, — U. S. — 
(1991) we said that unless it was clear that the term “appoin- 
tee[s] on the policymaking level” did not include judges we 
would construe it to include them, since the contrary con- 
struction would cause the statute to intrude upon the struc- 
ture of state government, establishing a federal qualification 
for state judicial office. Such intrusion, we said, requires a 

“plain statement” before we will acknowledge it. See also 
Will v. Michigan Dept. of State Police, 491 U. S. 58, 65 
(1989); Atascadero State Hospital v. Scanlon, 473 U. S. 234, 
242 (1985); Pennhurst State School and Hospital v. Halder-  



  

90-757 & 90-1032—DISSENT 

CHISOM ». ROEMER 9 

man, 465 U. S. 89, 99 (1984). If the same principle were ap- 
plied here, we would have double reason to give “represent- 
atives” its ordinary meaning. It is true, however, that in 
Gregory interpreting the statute to include judges would 
have made them the only high-level state officials affected, 
whereas here the question is whether judges were excluded 
from a general imposition upon state elections that unques- 
tionably exists; and in Gregory it was questionable whether 
Congress was invoking its powers under the Fourteenth 
Amendment (rather than merely the Commerce Clause), 
whereas here it is obvious. Perhaps those factors suffice to 
distinguish the two cases. Moreover, we tacitly rejected a 
“plain statement” rule as applied to the unamended §2 in 
City of Rome v. United States, 446 U. S. 156, 178-180 (1980), 

though arguably that was before the rule had developed the 
significance it currently has. I am content to dispense with 
the “plain statement” rule in the present case, cf. Pennsylva- 
nia v. Union Gas Co., 491 U. S. 1, 41-42 (1989) (opinion of 
SCALIA, J.)—but it says something about the Court’s ap- 
proach to today’s decision that the possibility of applying that 
rule never crossed its mind. 

While the “plain statement” rule may not be applicable, 
there is assuredly nothing whatever that points in the oppo- 
site direction, indicating that the ordinary meaning here 
should not be applied. Far from that, in my view the ordi- 
nary meaning of “representatives” gives clear purpose to con- 
gressional action that otherwise would seem pointless. As 
an initial matter, it is evident that Congress paid particular 
attention to the scope of elections covered by the “to elect” 
language. As the Court suggests, that language for the 
most part tracked this Court’s opinions in White v. Regester, 
412 U. S. 755, 766 (1973), and Whitcomb v. Chavis, 403 U. S. 
124, 149 (1971), but the word “legislators” was not copied. 
Significantly, it was replaced not with the more general term 
“candidates” used repeatedly elsewhere in the Act, see, e. g., 
42 U. S. C. §§1971(b), (e); 1973i(c), 1973l(c); 1973ff-2; 1974, 

 



  

90-757 & 90-1032—DISSENT 

10 CHISOM v. ROEMER 

1974e, but with the term “representatives,” which appears 

nowhere else in the Act (except as a proper noun referring to 

Members of the federal lower House, or designees of the At- 

torney General). The normal meaning of this term is 

broader than “legislators” (it includes, for example, school 

boards and city councils as well as senators and represent- 

atives) but narrower than “candidates.” 

The Court says that the seemingly significant refusal to 

use the term “candidate” and selection of the distinctive term 

“representative” are really inconsequential, because “candi- 

date” could not have been used. According to the Court, 

since “candidate” refers to one who has been nominated but 

not yet elected, the phrase “to elect candidates” would be a 

contradiction in terms. Ante, at 18. The only flaw in this 

argument is that it is not true, as repeated usage of the for- 

mulation “to elect candidates” by this Court itself amply dem- 

onstrates. See, e. g., Davis v. Bandemer, 478 U. S. 109, 

131 (1986); Rogers v. Lodge, 458 U. S. 613, 624 (1982); id., at 

639, n. 18, 641, n. 22, 649 (STEVENS, J., dissenting); City of 

Mobile v. Bolden, 446 U. S., at 75; United Jewish Organiza- 

tions of Williamsburgh, Inc. v. Carey, 430 U. S. 144, 158 

(1977); Moore v. Ogilvie, 394 U. S. 814, 819 (1969); Allen v. 

State Board of Elections, 393 U. S. 544, 569 (1969). We 

even used the phrase repeatedly in Thornburg. Thornburg 

v. Gingles, 478 U. S., at 40, 44, 50, 54, 80; d., at 86, 103 

(O’CONNOR, J., concurring in judgment); id., at 107 (opinion 

of STEVENS, J.). And the phrase is used in the Complaint of 

the minority plaintiffs in the other §2 case decoded today. 

Houston Lawyers’ Assn. v. Attorney General of Texas, — 

U.S. —— (1991). App. in Nos. 90-813, 90-974, p. 22a. In 

other words, far from being an impermissible choice, “candi- 

dates” would have been the natural choice, even if it had not 

been used repeatedly elsewhere in the statute. It is quite 

absurd to think that Congress went out of its way to replace 

that term with “representatives,” in order to convey what 

 



  

90-757 & 90-1032—DISSENT 

CHISOM ». ROEMER 11 

“candidates” naturally suggests (viz., coverage of all elec- 
tions) and what “representatives” naturally does not. 

A second consideration confirms that “representatives” in 
§ 2 was meant in its ordinary sense. When given its ordi- 
nary meaning, it causes the statute to reproduce an estab- 
lished, eminently logical and perhaps practically indispens- 
able limitation upon the availability of vote dilution claims. 

Whatever other requirements may be applicable to elections 
for “representatives” (in the sense of those who are not only 
elected by but act on behalf of the electorate), those elec- 
tions, unlike elections for all office-holders, must be con- 

ducted in accordance with the equal-protection principle of 
“one person, one vote.” And it so happens —more than co- 
incidentally, I think—that in every case in which, prior to the 
amendment of § 2, we recognized the possibility of a vote di- 
lution claim, the principle of “one person, one vote” was ap- 
plicable. See, e. g., Fortson v. Dorsey, 379 U. S. 433, 436 
(1965); Burns v. Richardson, 384 U. S. 73, 88 (1966); Whit- 
comb v. Chavis, supra, at 149-150; White v. Regester, supra, 

at 765-767; see also Davis v. Bandemer, 478 U. S. 109, 

131-132 (1986). Indeed, it is the principle of “one person, 
one vote” that gives meaning to the concept of “dilution.” 

One’s vote is diluted if it is not, as it should be, of the same 
practical effect as everyone else’s. Of course the mere fact 
that an election practice satisfies the constitutional require- 
ment of “one person, one vote” does not establish that there 

has been no vote dilution for Voting Rights Act purposes, 
since that looks not merely to equality of individual votes but 
also to equality of minority blocs of votes. (White itself, 
which dealt with a multi-member district, demonstrates this 

point. See also City of Mobile v. Bolden, supra, at 65.) 
But “one person, one vote” has been the premise and the nec- 
essary condition of a vote dilution claim, since it establishes 
the baseline for computing the voting strength that the mi- 
nority bloc ought to have. As we have suggested, the first 
question in a dilution case is whether the “one person, one 

 



  

90-757 & 90-1032—DISSENT 

12 CHISOM ». ROEMER 

vote” standard is met, and if it is, the second is whether vot- 

ing structures nonetheless operate to “‘minimize or cancel 
out the voting strength of racial or political elements of the 
voting population.”” Burns v. Richardson, supra, at 88. 
See also Note, Fair and Effective Voting Strength Under 
Section 2 of the Voting Rights Act: The Impact of Thornburg 
v. Gingles on Minority Vote Dilution Litigation, 34 Wayne L. 
Rev. 303, 323-324 (1987). 

Well before Congress amended §2, we had held that the 
principle of “one person, one vote” does not apply to the elec- 
tion of judges, Wells v. Edwards, 347 F. Supp. 453 (MD La. 
1972), aff’d, 409 U.S. 1095 (1973). If Congress was 
(through use of the extremely inapt word “representatives”) 
making vote dilution claims available with respect to the elec- 
tion of judges, it was, for the first time, extending that rem- 

edy to a context in which “one person, one vote” did not 
apply. That would have been a significant change in the law, 
and given the need to identify some other baseline for com- 
puting “dilution,” that is a matter which those who believe in 
barking dogs should be astounded to find unmentioned in the 
legislative history. If “representatives” is given its normal 
meaning, on the other hand, there is no change in the law (ex- 

cept elimination of the intent requirement) and the silence is 
entirely understandable. 

I frankly find it very difficult to conceive how it is to be 
determined whether “dilution” has occurred, once one has 

eliminated both the requirement of actual intent to disfavor 
minorities, and the principle that 10,000 minority votes 
throughout the State should have as much practical “elect- 
ability” effect as 10,000 nonminority votes. How does one 
begin to decide, in such a system, how much elective strength 
a minority bloc ought to have? I do not assert that it is ut- 
terly impossible to impose “vote dilution” restrictions upon 
an electoral regime that is not based on the “one person, one 
vote” principle. Congress can define “vote dilution” to be 
whatever it will, within constitutional bounds. But my point 

 



  

90-757 & 90-1032—DISSENT 

CHISOM ». ROEMER 13 

is that “one person, one vote” is inherent in the normal con- 
cept of “vote dilution,” and was an essential element of the 
pre-existing, judicially crafted definition under § 2; that Con- 

gress did not adopt any new definition; that creating a new 
definition is a seemingly standardless task; and that the word 
Congress selected (“representative”) seems specifically de- 
signed to avoid these problems. The Court is stoic about the 
difficulty of defining “dilution” without a standard of purity, 
expressing its resolve to stand up to that onerous duty ines- 
capably thrust upon it: “Even if serious problems lie ahead in 
applying the ‘totality of the circumstances’ described in 
§ 2(b), that task, difficult as it may prove to be, cannot justify 
a judicially created limitation on the coverage of the broadly 
worded statute, as enacted and amended by Congress.” 
Ante, at 21-22. One would think that Congress had said 
“candidates,” rather than “representatives.” In reality, 
however, it is the Court rather than Congress that leads us — 
quite unnecessarily and indeed with stubborn persistence— 
into this morass of unguided and perhaps unguidable judicial 
interference in democratic elections. The Court attributes 
to Congress not only the intent to mean something other than 
what it said, but also the intent to let district courts invent 

(for there is no precedent where “one person, one vote” did 
not apply that Congress could have been consulting) what in 
the world constitutes dilution of a vote that does not have to 
be equal. 

Finally, the Court suggests that there is something “anom- 
alous” about extending coverage under §5 of the Voting 
Rights Act to the election of judges, while not extending cov- 
erage under §2 to the same elections. Ante, at 20. This 
simply misconceives the different roles of §2 and §5. The 
latter requires certain jurisdictions to preclear changes in 
election methods before those changes are implemented; it is 
a means of assuring in advance the absence of all electoral il- 
legality, not only that which violates the Voting Rights Act 
but that which violates the Constitution as well. In my 

 



90-757 & 90-1032—DISSENT 

14 CHISOM ». ROEMER 

view, judges are within the scope of §2 for nondilution 
claims, and thus for those claims, § 5 preclearance would en- 

force the Voting Rights Act with respect to judges. More- 
over, intentional discrimination in the election of judges, 
whatever its form, is constitutionally prohibited, and the pre- 
clearance provision of § 5 gives the government a method by 
which to prevent that. The scheme makes entire sense 
without the need to bring judges within the “to elect” 
provision. 

All this is enough to convince me that there is sense to the 
ordinary meaning of “representative” in § 2(b)—that there is 
reason to Congress’s choice—and since there is, then, under 

our normal presumption, that ordinary meaning prevails. I 
would read §2 as extending vote dilution claims to elections 
for “representatives,” but not to elections for judges. For 
other claims under §2, however—those resting on the “to 
participate in the political process” provision rather than the 
“to elect” provision—no similar restriction would apply. 
Since the claims here are exclusively claims of dilution, I 
would affirm the judgment of the Fifth Circuit. 

* * %* 

As I said at the outset, this case is about method. The 

Court transforms the meaning of § 2, not because the ordi- 
nary meaning is irrational, or inconsistent with other parts of 
the statute, see, e. g., Green v. Bock Laundry, 490 U. S. 
504, 510-511 (1989); Public Citizen v. Department of Justice, 
491 U. S., at 470 (KENNEDY, J., concurring in judgment), 

but because it does not fit the Court’s conception of what 
Congress must have had in mind. When we adopt a method 
that psychoanalyzes Congress rather than reads its laws, 
when we employ a tinkerer’s toolbox, we do great harm. 
Not only do we reach the wrong result with respect to the 
statute at hand, but we poison the well of future legislation, 
depriving legislators of the assurance that ordinary terms, 
used in an ordinary context, will be given a predictable mean-  



  

90-757 & 90-1032—DISSENT 

CHISOM ». ROEMER 15 

ing. Our highest responsibility in the field of statutory con- 
struction is to read the laws in a consistent way, giving Con- 
gress a sure means by which it may work the people’s will. 
We have ignored that responsibility today. I respectfully 
dissent. 

 



SUPREME COURT OF THE UNITED STATES 

Nos. 90-757 AND 90-1032 

RONALD CHISOM, ET AL., PETITIONERS 
90-757 0) 

CHARLES E. ROEMER, GOVERNOR OF 
LOUISIANA, ET AL. 

UNITED STATES, PETITIONER 
90-1032 . 

CHARLES E. ROEMER, GOVERNOR OF 
LOUISIANA, ET AL. 

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

[June 20, 1991] 

JUSTICE KENNEDY, dissenting. 

I join JUSTICE SCALIA’s dissent in full. I write to add only 
that the issue before the Court is one of statutory construc- 
tion, not constitutional validity. Nothing in today’s decision 
addresses the question whether §2 of the Voting Rights Act 
of 1965, as interpreted in Thornburg v. Gingles, 478 U. S. 30 
(1986), is consistent with the requirements of the United 
States Constitution.