Attorney Notes; The Federal Courts and Redistricting: The Right to Formulate a Remedy Paper

    IN THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

No. 88-3492 

RONALD CHISOM, et al., 

Plaintiffs-Appellees, 
V . 

BUDDY ROEMER, et al., 

Defendants-Appellants. 

BRIEF OF APPELLEES  

WILLIAM P. QUIGLEY 
901 Convention Center Blvd. 
Fulton Place 
Suite 119 
New Orleans, LA 70130 
(504) 524-0016 

ROY RODNEY, JR. 
643 Magazine Street 
New Orleans, LA 70130 
(504) 586-1200 

PAMELA S. KARLAN 
University of Virginia 
School of Law 
Charlottesville, VA 22901 
(804) 924-7810 

JULIUS L. CHAMBERS 
CHARLES STEPHEN RALSTON 
C. LANI GUINIER 
JUDITH REED 

99 Hudson Street, 16th Floor 
New York, New York 10013 
(212) 219-1900 -

RON WILSON 
Richards Building, Suite 310 
837 Gravier Street 
New Orleans, LA 70112 
(504) 525-4361 



CERTIFICATE OF INTERESTED PARTIES  

The undersigned counsel of record certifies that the 

following listed persons have an interest in the outcome of this 

case. These representations are made in order that the Judges of 

this Court may evaluate possible disqualification or recusal: 

Plaintiffs: 

Counsel for 
Plaintiffs: 

Defendants: 

Counsel for 
Defendants: 

Ronald Chisom 
Marie Bookman 
Walter Willard 
Marc Morial 
Henry A. Dillon III 
Louisiana Voter Registration/Education 
Crusade 

William P. Quigley 
Roy J. Rodney, Jr. 
Ron Wilson 
Julius L. Chambers 
Charles Stephen Ralston 
C. Lani Guinier 
Judith Reed 
liamela S. Karlan 
NAACP Legal Defense .StEducational Fund, Inc. 

Buddy Roemer, in his official capacity as 
Governor of Louisiana 

W. Fox McKeithan, in his official capacity as 
Secretary of State of Louisiana 

Jerry Fowler, in his official capacity as 
Commissioner of Elections of Louisiana 

William J. Guste, Jr., Attorney General of 
Louisiana 

Robert G. Pugh, Sr. 
M. Truman Woodward 
Blake G. Arata 
A.R. Christovich 
Moise W. Dennery 

Attorney of Record for 
Appellees 



STATEMENT REGARDING ORAL ARGUMENT 

Appellees do not believe oral argument is necessary in this 

1P 
case. The sole issue before this Court is whether the district 

court abused its discretion in issuing a preliminary injunction 

to stop an election after plaintiffs had made a showing, which 

the State did not contest, that the present election system 

violates section 2 of the Voting Rights Act of 1965 as amended, 

42 U.S.C. § 1973. In light of the district court's thorough 

opinion, this case is appropriate for summary affirmance. 



TABLE OF CONTENTS  

Page  

Certificate of Interested Parties . . i 

Statement Regarding Oral Argument . 

Table of Contents   

Table of Authorities   

Statement of Jurisdiction  1 

Statement of the Issue   1 

Statement of the Case  1 

Course of the Proceedings   1 

Statement of Facts   4 

Facts Relating to Plaintiffs' Section 2 Claims  4 

Facts Relating to Plaintiff' Motion for a 
Preliminary Injunction  10 

Summary of Argument   13 
• 

Argument  15 

I. This Court's Role in Reviewing the Decision of the 
District Court Is Particularly Circumscribed 
Because This Case Involves the Issuance of a 
Preliminary Injunction Under Section 2   15 

II. The Potential Fate of the State's As Yet Unfiled 
Petition for Certiorari Is Irrelevant to the Question 
Whether Plaintiffs Showed a Likelihood of Success 
on the Merits  16 

III. The State's Arguments Regarding Irreparable Injury 

19 Are Meritless 

A. Plaintiffs Would Suffer Irreparable Injury 
If this Court Were To Lift the District 
Court's Injunction and Permit the October 
1988 Election To Go Forward   19 

B. The Fact That an Illegal Election May Be Set 
Aside Does Not Justify Letting One Proceed  24 

111 



• 

. Page  

4-
'AO 

IV. The District Court's Assessment of the Relative 
•Harms of Granting or Denying Preliminary Relief 
Fell Well Within Its Discretion  25 

Conclusion  26 

Certificate of Service  27 

iv 

- 



TABLE OF AUTHORITIES  

Cases Pages  

Allen v. State Board of Elections, 393 U.S. 
544 (1969)   21 

Canal Authority v. Callaway, 489 F.2d 567 (5th 
Cir. 1974)   10 

Chisom V. Edwards,   F.2d (5th Cir. May 27, 
1988)   3 

Chisom v. Edwards, 659 F. Supp. 183 (E.D. La. 1987)   2 

Chisom v. Edwards, 839 F.2d 1056 (5th Cir. 1988) • . 2,4,9,17 
18,20 

Citizens for a Better Gretna, 636 F. Supp. 1113 
(E.D. La. 1986), aff'd, 834 F.2d 496 (5th Cir. 1987) • • . 9 

Cook v. Luckett, 575 F. Supp. 479 (S.D. Miss. 1983)   20 

Dillard v. Crenshaw County Commission, 831 F.2d 246 
(11th Cir. 1987)   16 

Exxon Corp. v. Berwick Bay Real Estate Partners, 748 
F.2d 937 (5th Cir. 1984)   15 

Green v. County School Board, 391 U.S. 430 (1968)   21 

Haith v. Martin, 477 U.S. 901 (1986)   17 

Hamer v. Campbell, 358 F.2d 215 (5th Cir. 1966) 3, 24 

Harris v. Graddick, 593 F. Supp. 128 (M.D. 
Ala. 1984)   20 

Henry v. First National Bank of Clarksdale, 595 F.2d 
291 (5th Cir. 1979), cert. denied, 444 U.S. 
1074 (1980) 15 

Kirksey v. Allain, Civ. Act. No. J85-0960(B) 
(S.D. Miss. May 28, 1986)   20 

Lindsay v. City of San Antonio, 821 F.2d 1103 (5th 
Cir. 1987)   15, 18 

Louisiana v. United States, 380 U.S. 145 (1965) 

Major v. Treen, 574 F. Supp. 325 (E.D. La. 1983) 
(three-judge court)   

6 

6, 7, 9, 22 



Pages  

Mallory v. Eyrich, 839 F.2d 275 (6th Cir. 1988)   17 

• Mississippi State Chapter, Operation PUSH 

V. Allain, 674 F. Supp. 1245 (N.D. 
Miss. 1987)   9 

Reynolds v. Sims, 377 U.S. 533 (1964)   20, 24 

Spiegel v. City of Houston, 636 F.2d 997 (5th 
Cir. 1981)   11 

Thornburg v. Gingles, 478 U.S. 30 (1986)   5-8, 16, 18 

United States v. Sheffield Board of Commissioners, 
435 U.S. 110 (1978)   18 

Watson v. Commissioners Court of Harrison 
County, 616 F.2d 105, 107 (5th Cir. 
1980) (per curiam)   20 

Wicker v. McCotter, 798 F.2d 155 (5th Cir. 1986)   18 

Zimmer V. McKeithan, 485 F.2d 1297, 1306 (5th Cir. 
1974) (en banc), aff'd on other grounds sub  
nom. East Carroll Parish School Board v. 
Marshall, 424 U.S. 636 (1976) (per curiam)   6 

Statutes  

28 U.S.C. § 1291(a)(1)   

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

1 

. 1,15 

Other Materials  

Revesz & Karlan, Nonmajority Rules and the Supreme Court, 
136 U.Pa.L.Rev. 1067 (1988)   22 

S. Rep. No. 97-417 (1982)   5-6,16,21 

Supreme Court Rule 17   17 

U.S. Commission on Civil Rights, The Voting Rights Act: 
Ten Years After (1975)   21 

Vi 

• TX:. 



IN THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

No. 88-3492 

RONALD CHISOM, et al., 

Plaintiffs-Appellees, 
V . 

BUDDY ROEMER, et al., 

Defendants-Appellants. 

BRIEF OF APPELLEES  

STATEMENT OF JURISDICTION 

This Court has jurisdiction pursuant to 28 U.S.C. § 

1292(a)(1), because this case involves an appeal from an order by 

a United States District Court issuing an injunction. 

STATEMENT OF THE ISSUE  

Was it within the district court's discretion to enjoin an 

upcoming election for a seat on the Louisiana Supreme Court in 

light of the fact that, under the existing law of this Circuit, 

it is uncontested that the method of filling that position 

violates section 2 of the Voting Rights Act of 1965 as amended, 

42 U.S.C. § 1973? 

STATEMENT OF THE CASE  

Course of Proceedings  

This case involves an appeal from a decision by the United 



States District Court for the Eastern District of Louisiana 

(Charles Schwartz, Jr., J.) granting plaintiffs' motion for a 

• preliminary injunction pending adjudication of plaintiffs' claims 

under section 2 of the Voting Rights Act of 1965 as amended. On 

September 19, 1986, plaintiffs filed a complaint challenging the 

method of electing Justices to the Louisiana Supreme Court from 

the First Supreme Court District. They alleged that the use of a 

two-member district in the New Orleans metropolitan area 

submerged Orleans Parish's predominantly black electorate in a 

majority-white multimember district in violation of both the 

"results" prong of section 2 and the intent standard of the 

Fourteenth and Fifteenth Amendments. 

In an opinion and order dated May 1, 1987, and subsequently 

amended on July 10, 1987, the district court granted the motion 

to dismiss filed by the defendant state officials [hereafter "the 

State"]. It held that section 2 does not cOver judicial 

electi%ins. Chisom V. Edwards, 659 F. Supp. 183 (E.D. La. 1987). 

It also dismissed plaintiffs' constitutional claims, for reasons 

that are not germane to this appeal. 

On February 29, 1988, this Court unanimously reversed the • 

district court, holding both that section 2 applies to judicial 

elections and that plaintiffs' complaint had adequately pleaded 

its constitutional allegations. Chisom v. Edwards, 839 F.2d 1056 

(5th Cir. 1988). 

The State petitioned for rehearing and rehearing en banc. 

Plaintiffs responded by moving either for an injunction against 

2 



the upcoming election or for issuance of the mandate to permit 

them to seek immediate preliminary injunctive relief from the 

district Court. 

On May 27, 1988, this Court unanimously denied the State's 

petition for rehearing and suggestion for rehearing en banc. In 

addition, despite the State's announced intention to petition for 

certiorari--see Opposition to Plaintiff-Appellants' Motion for an 

Injunction Pending Appeal at 16, 30--and the provisions of Fed. 

R. App. P. 41(a) and (b) that postpone issuance of the mandate to 

allow parties seeking certiorari to receive a stay, this Court 

ordered the immediate issuance of the mandate. 

The same day, the original panel--Judges Johnson, 

Higginbotham, and Brown--issued an opinion denying plaintiffs' 

motion for an injunction pending appeal "[i]n accordance with 

Fed. R. Civ. P. 8(a), which provides that an injunction request 

must ordinarily be made in the district court on first instance," 

Chisom v. Edwards, F.2d (5th Cir. May 27, 1988), slip 

op. at 1, and dismissing as moot plaintiffs' motion for issuance 

of the mandate. In that opinion, the Court stated that: 

In the event the plaintiffs assert their injunction 
request to the district court, whichever way the 
district court rules, this Court notes that any 
election held under an elections scheme which this 
Court later finds to be unconstitutional or in 
violation of the Voting Rights Act is subject to being 
set aside and the office declared to be vacant. See 
Hamer v. Campbell, 358 F.2d 215 (5th Cir. 1966), 

Slip op. at 1-2. 



Statement of Facts  

•.7:•• The Louisiana Supreme Court consists of seven justices. 

Five are elected from single-member districts. The other two are 

elected from the only multimember district--the First Supreme 

Court District. The First District contains Orleans, St. 

Bernard, Plaquemines, and Jefferson Parishes. See Chisom v.  

Edwards, 839 F.2d at 1057. Justices serve ten-year terms. See 

Chisom v. Edwards, slip op. at 3. 1 

Census figures and official voter registration records show 

that blacks constitute a minority of both the total population 

(34.39%) and the registered voters (31.6%) in the four-parish 

First Supreme Court District. However, blacks constitute a 

majority of both the total population (55.25%) and the registered 

voters (52.4%) in Orleans Parish, which contains roughly one-half 

the population of the First Supreme Court District. Slip op. at 

5. Therefore, it would be possible to create a single-member 

Supreme Court District with a majority-black electorate. Slip 

op. at 24. 

Facts Relating to Plaintiffs' Section 2 Claims 

The Senate Report accompanying the 1982 amendments to the 

1 Although appellants filed their brief on the merits 
when they filed their motion to expedite their appeal (which has 
-since been granted), they did not file an appendix pursuant to 
this Court's Rule 30.1. Accordingly, appellees have attached a 
copy of the district court's opinion granting their motion for a 
preliminary injunction to this brief, and all citations will 
refer to the pages of that original slip opinion. 

4 



S 
Voting Rights Act, which the Supreme Court has characterized as 

an "authoritative source" for interpreting section 2, Thornburg 

v. Gingles, 478 U.S. 30, 43 n. 7 (1986), listed nine "(t]ypical 

t)? 
factors" that can serve to show a violation of section 2's 

i" 

"results test." S. Rep. No. 97-417, p. 28 (198.2) ["Senate 

Report"]. 2 In cases challenging the use of multi-member 

2 These factors are: 
"1. the extent of any history of official 

discrimination in the state or political subdivision 
that touched the right of the members of the minority 
group to register, to vote, or otherwise to participate 
in the democratic process; 

2. the extent to which voting in the elections of 
the state or political subdivision is racially 
polarized; 

3. the extent to which the state or political 
subdivision has used unusually large election 
districts, majority vote requirements, anti-single shot 
provisions, or other voting practices or procedures 
that may enhance the opportunity for discrimination 
against the minority; 

4. if there is a candidate slating process, 
whether the members of the minority group have been 
denied access to that process; 

5. the extent to which members of the minority 
group in the state or political subdivision bear the 
effects of discrimination in such areas as education, 
employment and health, which hinder their ability to 
participate effectively in the political process; 

6. whether political campaigns have been 
characterized by overt or subtle racial appeals; 

7. the extent to which members of the minority 
group have been elected to public office in the 
jurisdiction. 

• . • 
[8.] whether there is a significant lack of 

responsiveness on the part of elected officials to the 
particularized needs of the members of the minority 
group. 

[9.] whether the policy underlying the state or 
political subdivision's use of such voting 
qualification, prerequisite to voting, or standard, 
practice or procedure is tenuous." 

Senate Report at 28-29. "[T]here is no requirement that any 

5 



districts "the most important Senate Report factors . . are the 

'extent to which members of the minority group have been elected 

- to public office in the jurisdiction' and the 'extent to which 

voting in the elections of the state or political subdivision is 

racially polarized.'" Ginqles, 478 U.S. at 48-49 n. 15. The 

other factors are "supportive of, but not essential to, a 

minority voter's claim." Id. In this case, the district court's 

factual findings on the salient Senate factors all support a• 

finding that, under the totality of the circumstances, the 

present election system violates section 2. 

First, the district court found that Louisiana has a long 

history of purposeful discrimination designed to diminish the 

ability of the state's black residents to register, to vote, and 

otherwise to participate in the political process. See slip op. 

at 6, 22; see also Louisiana v. United States, 380 U.S. 145 

(1965) (discussing Louisiana's long history of racial 

discrimination in voting); Zimmer v. McKeithan, 485 F.2d 1297, 

1306 (5th Cir. 1974) (en banc) (same), aff'd on other grounds sub  

nom. East Carroll Parish School Board v. Marshall, 424 U.S. 636 

(1976) (per curiam); Major v. Treen, 574 F. Supp. 325, 340 (E.D. 

La. 1983) (three-judge court) (opinion by Politz, J.) (same). 

Second, the district court found that plaintiffs had made a 

prima facie showing that elections in the four parishes that form 

the present First Supreme Court District, and in particular, 

• particular number of factors be proved, or that a majority of 
them point one way or the other." Id. at 29. 

6 

• 



judicial elections within those parishes, are characterized by 

racial bloc voting. See slip op. at 21-22; see also Major v.  

Treen,'574 F. Supp. at 337-39 (finding racial bloc voting in 

elections, including judicial elections, in the New Orleans 

metropolitan area). 

The district court's finding is supported by the unrebutted 

evidence presented by plaintiffs. Judges Revius Ortique and 

Israel Augustine submitted affidavits regarding the presence of 

significant racial bloc voting that would make it impossible for 

a black candidate to win election from the present First Supreme 

Court District. In addition, an uncontested expert analysis of 

twenty-seven separate judicial contests during the period 1978 to 

1987 showed that in twenty-five of those races, a black candidate 

was the preferred choice of black voters. 3 In no election was a 

black candidate the choice of white voters. In the twenty-five 

contests in which the black community supported a black 

candidate, an average of 77.06 percent of the black electorate 

voted for the preferred black candidate, while only 13.76 percent 

of white voters voted for the preferred black candidate. 4 

3 In twenty-three elections, a black candidate received 
an outright majority of the votes cast by black voters. In two 
others, a black candidate was the plurality choice. 

4 Although the district court found that plaintiffs had 
made a prima facie showing of racial bloc voting, it relied 
primarily on the affidavits supplied by several lay witnesses, 
rather than the statistical analysis performed by Dr. Richard L. 
Engstrom, a nationally recognized expert in the quantitative 
analysis of racial voting patterns, see Gingles, 478 U.S. at 53 
n. 20 & 55 (citing Dr. Engstrom's scholarly writings with 
approval). The district court based its approach on the belief 
that the statistical techniques used by Dr. Engstrom had "only 

7 



Third, the district court found that "all three practices 

identified in Thornburg [and in the Senate Report] as tending to 

exacerbate the diluting effect that at-large elections .have on 

minority groups are present in this case." Slip op. at 22-23. 

The First Supreme Court District is unusually large, both in 

terms of its total population and in that it is the only multi-

member district. Moreover, elections are governed by a majority-

vote requirement. Finally, because the terms of the two justices 

elected from the district are staggered, "single-shot" voting is 

precluded. 

Fourth, the district court made several findings regarding 

the socioeconomic status of black voters in Orleans Parish 

relevant to the issue of whether blacks are able to participate 

effectively in the political process. See slip op. at 5. Census 

figures for 1980 (the last year for which racial breakdowns were 

compiled) show that while over 70 percent of the white adults 

(agc 25 and over) in New Orleans are high school graduates, less 

than half of the black adults are. Moreover, the percentage of 

black adult residents who have completed fewer than eight years 

of schooling (21.78) is nearly twice the percentage of white 

been approved by a plurality of the Supreme Court" in Gingles. 
Slip op. at 21-22. 

The district court was mistaken. The Supreme Court's 
recognition that bivariate ecological regression and extreme case 
analysis are "standard in the literature for the analysis of 
racially polarized voting," 478 U.S. at 53 n. 20, is contained in 
a part of the opinion joined by five Justices. In addition, the 
definition of racial bloc voting used by Dr. Engstrom in this 
case was also contained within a part of Justice Brennan's 
opinion that constituted an opinion of the Court. 

8 



:•••••• 

residents with a similarly limited education. 

According to the 1980 Census, black per capita income in 

Orleans Parish was only 40 percent of white per capita income. 

The percentage of black families living below poverty level 

(33.4) was roughly four-and-one half times the percentage of 

white families living below poverty level. And over twice the 

percentage of black-occupied housing units as white-occupied 

housing units lacked telephones and motor vehicles--two critical 

resources for political mobilization, see, e.g., Mississippi  

State Chapter, Operation PUSH V. Allain, 674 F. Supp. 1245, 1256 

(N.D. Miss. 1987). See also Citizens for a Better Gretna, 636 F. 

Supp. 1113, 1117 (E.D. La. 1986) (discussing how gap between 

socioeconomic status of blacks and whites in New Orleans 

metropolitan area impairs ability of blacks to participate 

equally), aff'd, 834 F.2d 496 (5th Cir. 1987); Major v. Treen, 

574 F. Supp. at 341 (same). 

Fifth, with regard to the "critical" question of the extent 

to which minority group members have been elected to public 

office in the jurisdiction, the district court found that "it is 

undisputed that no black person in this century has ever served 

on the Louisiana Supreme Court." Slip op. at 21; see Chisom v.  

Edwards, 839 F.2d at 1058 (finding this factor "particularly 

significant"). 

Based on these subsidiary factual findings--none of which 

was disputed by the State either in the district court or in this 

Court--the district court concluded "considering the totality of 

9 



the circumstances . . that plaintiffs have established a prima  

facie case that the present elective system for the two seats on 

the First Supreme Court District violates section of the Voting 

Rights Act . . . ." Slip op. at 24. 

Facts Relating to Plaintiffs' Motion 
for a Preliminary Injunction 

Under Canal Authority v. Callaway, 489 F.2d 567, 572 (5th 

Cir. 1974), a court faced with a motion for a preliminary 

injunction is directed to consider four questions: (1) whether 

plaintiffs are likely to prevail on the merits; (2) whether there 

is a substantial threat of irreparable injury; (3) whether the 

threatened injury outweighs the threatened harm an injunction 

might do to the defendant; and (4) whether granting an injunction 

will serve the public interest. 

Likelihood of Success on the Merits. --The district court's 

finding that plaintiffs had established a prima facie violation 

of section 2 was discussed in the preceding section of this 

brief. In light of the holding by this Court in this case that 

section 2 applies to judicial elections and the evidence before 

it, the district court refused to speculate as to whether the 

Supreme Court might ultimately hold that the Voting Rights Act 

exempts judicial elections. Slip op. at 16. Thus, it concluded 

that plaintiffs had shown a likelihood of prevailing on the 

merits of their section 2 claim. 

• Irreparable Injury to Plaintiffs. --The district court 

further found that, in light of plaintiffs' prima facie showing 

10 



of a violation, plaintiffs would suffer an irreparable injury if 

the upcoming election were to go forward. It found that the 

right involved in this case--the right to vote in a racially fair 

election--is "entirely nonpecuniary" and thus, under the law of 

this Circuit (which defines injuries as irreparable when they 

"'cannot be undone through monetary remedies") could not be 

redressed after the fact. Slip op. at 24 (quoting Spiegel v.  

City of Houston, 636 F.2d 997, 1001 (5th Cir. 1981)). 

The court noted that "no potential candidate with a broad 

base on support from the Orleans Parish black voting community" 

would run from the present district because of a perception of 

"doomed defeat." Slip op. at 24, 25. Thus, black voters would be 

deprived not only of an equal opportunity to elect the candidate 

of their choice but of an opportunity to sponsor and vote for 

such a candidate at all. 

Furthermore, the district court found that this irreparable 

injury would be exacerbated if the scheduled election went 

forward because the advantages of incumbency achieved under a 

system presumptively in violation of section 2 would be enhanced 

by there having been a recent election. Slip op. at 26-27. 

The district court expressly rejected the State's argument 

that holding a racially fair election in 1990 for the other seat 

from the First Supreme Court District would eliminate any injury 

to the plaintiffs. "That a special election in the future may be 

constitutionally proper in no way makes the effects of an 

improper election any more palatable." Slip op. at 25 n. 57. Of 

11 



particular salience to the argument raised by the State in this 

Court, the district court squarely declined to "guarantee that 

the seat up for election in 1990 will in fact be "assigned' to 

Orleans Parish," slip op. at 27, even if plaintiffs did 

ultimately prevail. 

Balance of Harm to the Defendants. --The district court found 

that defendants had failed to show any cognizable harm to them 

should the injunction issue. Any financial burden the State 

might face was wholly unquantified and speculative. Slip op. at 

28. 

Moreover, the district court noted that among the governor's 

duties was to see that the laws are faithfully executed. That 

duty, it found, "extends to all citizens of the State." Slip op. 

at 28. Thus, if elections were conducted under a scheme that 

violated section 2--as they would be in this case if no 

injunction issued--the defendants, as well as the plaintiffs, 

would be injured if the election went forward. Slip op. at 28. 

The Public Interest. --The district court found, on a number 

of grounds, that the public interest militated in favor of 

granting preliminary relief. First, it found that, if the remedy 

ultimately imposed involved splitting the present First Supreme 

Court District into two single-justice districts, it would be 

unfair to the electorate of one of the new districts to assign a 

justice elected under an unfair scheme to that district's seat 

thereby denying those voters the right to elect a justice prior 

to 1998. Second, it found that to set aside the present election 

12 



should plaintiffs ultimately prevail instead of issuing an 

injunction would disserve the public interest because it would 

result in wasted expeditures by candidates and their supporters; 

would diminish confidence in the electoral process, would dampen 

interest by both candidates and voters, and could impair the 

qualities of deliberation and non-politicization normally 

fostered by Louisiana's use of ten-year terms of office. Slip 

op. at 29-31. 

SUMMARY OF ARGUMENT 

On an appeal from a district court's grant of preliminary 

injunctive relief, the role of this Court is circumscribed. The 

real question before this Court is whether the district court 

abused its discretion in issuing a preliminary injunction on the 

basis of the record before it. The district court was faced with 

unrebutted evidence that the present method of selecting justices 

for the Louisiana Supreme Court dilutes the votes of black 

citizens in violation of the Voting Rights Act. It concluded 

that equitable considerations demanded that it prevent 

Louisiana's black citizens from once again being denied their 

'essential constitutional right to racially fair elections. Such 

a decision was clearly within the district court's discretion. 

In a case involving section 2 of the Voting Rights Act--which 

demands a fact-intensive inquiry into the design and impact of 

the challenged electoral practice--an appellate court should be 

especially reluctant to set aside findings by a district court 

13 



based upon its familiarity with the indigenous political reality. 

The State's brief simply ignores the district court's 

thorough discussion of political realities within the First 

Supreme Court District. Its argument regarding the merits of 

plaintiffs' section 2 claim is nothing more than an attempt to 

relitigate an issue it has already litigated and lost twice in 

this very case in this Court: whether section 2 applies to 

judicial elections. 

The State's argument regarding the harm plaintiffs will 

suffer if the injunction is lifted adds insult to irreparable 

injury. It seeks to use the very success of the present system 

in deterring the black community from sponsoring candidates as an 

excuse for perpetuating the conduct of elections which deny black 

voters an equal opportunity to elect candidates of their choice. 

The suggestion that conducting a racially unfair election this 

year will somehow be balanced by possibly conducting a racially 

Lair election two years from now is incorrect as a matter of law. 

Moreover, it rests on several factual premises that are quite 

simply wrong. 

The State's argument regarding the harms defendants and the 

general public will incur if the preliminary injunction is left 

in place is equally meritless. It represents a blend of 

assertions unsupported by any evidence in the record; invocations 

of interests which, as a matter of law, cannot justify the use of 

an election scheme that violates the Voting Rights Act; reliance 

on case law that in fact cuts against the State's position; and 

14 



speculations about issues that should more properly be raised 

with the district court. 

ARGUMENT  

I. THIS COURT'S ROLE IN REVIEWING THE DECISION OF THE 
DISTRICT COURT IS PARTICULARLY CIRCUMSCRIBED BECAUSE 
THIS CASE INVOLVES THE ISSUANCE OF A PRELIMINARY 
INJUNCTION UNDER SECTION 2 

"The grant or denial of a preliminary injunction is 

committed to the district court and will be upheld absent an 

abuse of discretion." Lindsay v. City of San Antonio, 821 F.2d 

1103, 1107 (5th Cir. 1987) (emphasis added). In this Circuit, 

"the standard for appellate review of a preliminary injunction is 

simply whether the district court abused its discretion in 

issuing the injunction; [and] the reviewing court does not engage 

in the same plenary review that would be indicated on appeal of 

permanent relief." Henry v. First National Bank of Clarksdale, 

595 F.2d 291, 302 (5th ("4r. 1979) (emphasis added), cert. denied, 

444 U.S. 1074 (1980); see Exxon Corp. v. Berwick Bay. Real Estate  

Partners, 748 F.2d 937, 939 (5th Cir. 1984). 

These general precepts regarding the circumscribed role of 

appellate courts take on special force in the context of cases, 

such as this one, that involve the results test of amended 

section 2 of the Voting Rights Act. That section expressly 

directs district courts to consider "the totality of 

circumstances," 42 U.S.C. § 1973(b), both in determining 

liability and in constructing a remedy, see, e.g., Dillard v.  

15 



Crenshaw County Commission, 831 F.2d 246, 250 (11th Cir. 1987). 

The Supreme Court has made it abundantly clear that district 

.. 'courts faced with vote dilution claims are called upon to conduct 

"an intensely local appraisal of the design and impact" of the 

challenged practice "in the light of past and present reality, 

political and otherwise," Thornburg v. Gingles, 478 U.S. at 78 

(internal quotation marks omitted), and that appellate courts 

should be especially careful to "preserve the benefit of the 

trial court's particular familiarity of the indigenous political 

reality," id. at 79. 

In this case, the district court's examination of the "past 

and present reality," id.; see Senate Report at 30, of judicial 

elections and politics in the First Supreme Court District 

included consideration of voting and socioeconomic patterns 

within the district; the practical consequences of incumbency; 

the elements of successful judicial campaigns; and myriad other 

factors of which a district court "well acquainted with the 

political realities of the State" was aware, Gingles, 478 U.S. at 

80. This Court should give substantial weight to the district 

court's conclusions regarding the exercise of its equitable 

discretion. 

II. THE POTENTIAL FATE OF THE STATE'S AS YET UNFILED 
PETITION FOR CERTIORARI IS IRRELEVANT TO THE QUESTION 
WHETHER PLAINTIFFS SHOWED A LIKELIHOOD OF SUCCESS ON 
THE MERITS 

The State's entire argument regarding the first prong of 

Callaway--likelihood of success on the merits--belies its 

16 



insincere profession of "due deference and respect to this 

court's ruling" in Chisom, 839 F.2d 1056. The district court, 

..• having been told by this Court that section ,2 applies to judicial 

elections, applied the totality of the circumstances test 

outlined in Thornburg v. Gingles and the Senate Report and 

concluded that plaintiffs had made a prima facie showing that the 

present system impermissibly dilutes black voting strength. The 

State in essence argues that the district court should have 

ignored this Court's holding because of an entirely hypothetical 

possibility that the Supreme Court may ultimately reach a 

different conclusion. 

This Court has already held that the State's arguments as to 

why section 2 should not cover judicial elections are meritless. 

The State provides no real argument as to why that decision was 

incorrect. Moreover, given the Supreme Court's criteria for 

granting certiorari, see S.Ct. Rule 17.1, it is highly unlikely 

that the Supreme Court will take this case. Fit, both Courts 

of Appeals to have addressed the question have concluded that 

judicial elections are covered by section 2. See Chisom, 839 

F.2d 1056; Mallory v. Eyrich, 839 F.2d 275 (6th Cir. 1988). 

Indeed, not a single circuit judge has ever adopted the State's 

argument. Thus, there is no conflict in the circuits. Second, 

the two appellate decisions holding that section 2 covers 

judicial elections are wholly consistent with the Supreme Court's 

summary, unanimous, decision in Haith v. Martin, 477 U.S. 901 

(1986), that section 5 of the Voting Rights Act, a complementary 

17 

„ „ . 



^ 

provision, applies to judicial elections. See also Chisom, 839 

F.2d at 1063-64. Thus, not a single appellate judge on any court 

has ever suggested that judicial elections are not within the 

scope of the Voting Rights Act. Accordingly, there is not even a 

potential conflict between the decisions of the Supreme Court, 

which have consistently given the Act its broadest possible 

meaning, and the decision of this Court in this case. Third, the 

Department of Justice, whose expertise in interpreting the Act 

has long been relied on by the Supreme Court, see, e.g., United  

States v. Sheffield Board of Commissioners, 435 U.S. 110, 131 

(1978), has already made clear its position, in this very case, 

that section 2 applies to judicial elections. 

In light of the fact that this Court has held that it will 

apply the existing law of the circuit even when certiorari has 

been granted on the question involved, see Wicker v. McCotter, 

798 F.2d 155, 157-58 (5th Cir. 1986); slip op. at 16, the 

possible fate of an as yet unfiled petition for certiorari 

clearly should not have influenced the district court's analysis. 

The evidence clearly established a prima facie case under section 

2, and this Court should uphold the district court's finding of a 

likelihood of success on the merits. 5 

5 In Lindsay, this Court noted that, under certain 
circumstances, an appellate court is less constrained in 
reviewing a district court's finding of likelihood of success. 
See 821 F.2d at 1107-08. It relied on Bose Corp. v. Consumers  
Union, 466 U.S. 485 (1984), for that proposition. 821 F.2d at 
1108. In the context of section 2, however, the Supreme Court 
has explicitly rejected reliance on the Bose standard of 
appellate review. Gingles, 478 U.S. at 78. 

18 



III. THE STATE'S ARGUMENTS REGARDING IRREPARABLE INJURY ARE 
MERITLESS 

Nowhere is the State's attempt to ignore the district 

court's opinion clearer than it is in the State's treatment of 

the irreparable injury prong of Callaway. The State makes two 

arguments. First, since it would be possible to conduct an 

election from an Orleans Parish-based seat in 1990 if plaintiffs 

prevail, the State sees nothing wrong with conducting an election 

in 1988 under a presumptively illegal system. Second, the State 

suggests that because it would be possible to set aside the 

results of the 1988 election if plaintiffs prevail, plaintiffs 

will suffer no irreparable injury if the election goes forward. 

A. Plaintiffs Would Stiffer Irreparable Injury if 
this Court Were to Lift the District Court's  
Injunction and Permit the October 1988  
Election to Go Forward  

If the October 1988 election were to go forward, black 

citizens in Orleans Parish would be denied the right enjoyed by 

white citizens of the First Supreme Court District: the 

opportunity to have an effective voice in the composition of the 

Louisiana Supreme Court. 

The State acts as if that right could somehow be fully 

restored by conducting a racially fair election at some point in 

the future. It could not. As the district court recognized, 

"[t]hat a special election in the future may be constitutionally 

proper in no way makes the effects of an improper election any 

19 



more palatable." Slip op. at 25 n. 57; see Chisom, 839 F.2d at 

1065 ("The right to vote, the right to an effective voice in our 

Society cannot.be Impaired on the basis of race in anN-•instance 

wherein the will of the majority is expressed by popular vote.") 

(emphasis added). Elections simply are not fungible: racial vote 

dilution this year is not counterbalanced by the mere possibility 

of a racially fair election two years from now. The conduct of 

elections under an illegal system necessarily works an injury 

that can never be repaired. In that sense, it is inherently 

irreparable. See, e.g., Reynolds v. Sims, 377 U.S. 533, 585 

(1964); Watson v. Commissioners Court of Harrison County, 616 

F.2d 105, 107 (5th Cir. 1980) (per curiam); Kirksey v. Allain, 

Civ. Act. No. J85-0960(B) (S.D. Miss. May 28, 1986); Harris v.  

Graddick, 593 F. Supp. 128 (M.D. Ala. 1984); Cook v. Luckett, 575 

F. Supp. 479, 484 (S.D. Miss. 1983). 6 

In addition, the State's arguments as to why no election 

could be conducted prior to 1990 is constitutionally offensive. 

The State suggests it would be "manifestly unfair," Brief of 

Appellants at 19, to conduct a special election in 1989 for an 

Orleans Parish seat because that would preclude Justice Calogero, 

who lives in Jefferson Parish, from seeking reelection. The 

State cites no support for this attempt to sacrifice the 

federally protected rights of black voters to provide protection 

6 The fact that for other reasons a court may permit •an 
election to go forward, and an irreparable injury to be suffered, 
goes to the overall weighing of equitable factors. It cannot 
obscure the fact that such an injury has occurred. 

20 



to an incumbent elected under an invalid system. Indeed, there 

is none. Justice Calogero simply does not enjoy a federally 

protected right to a seat on •the Louisiana Supreme Court, 

especially if that right must be purchased by deferring relief 

for black voters. The remedial obligation of a court faced with . 

a violation of section 2 "is to come forward with a plan that 

promises realistically to work, and promises realistically to 

work now." Green v. County School Board, 391 U.S. 430, 439 

(1968) (emphasis in original); see Senate Report at 31 n. 121 

(relying on Green for remedial formulation in section 2 cases). 

Indeed, a sorry willingness to trade off the rights of black 

voters in Orleans Parish permeates the State's arguments. The 

State also suggests implicitly that conducting the October 

election is superior to enjoining it because going forward 

deprives only black voters of a fair opportunity to elect the 

candidate they prefer, while stopping the election until a fair 

system can 1) dz_vised deprives white voters as well of their 

right to vote. Of course, nothing in the federal Constitution or 

the Voting Rights Act requires that a state select its judiciary 

through popular elections. 7 But once a state had decided to fill 

judicial positions by election, it must conduct those elections 

in a racially fair manner. 

7 Under section 5, however, Louisiana would not be 
permitted to switch now from an elected to an appointed judiciary 
unless that change would have neither the purpose nor the effect 
of diluting black voting strength. See Allen v. State Board of  
Elections, 393 U.S. 544, 569-70 (1969) (holding that change from 
election to appointment is covered by section 5); U.S. Comm'n on 
Civil Rights, The Voting Rights Act: Ten Years After 171-72 (1975). 

21 



Finally, the State's repeated assertions that there is no 

doubt that, if plaintiffs prevail, they will be entitled to elect 

•a justice from an Orleans Parish-only district in 1990 is, quite 

simply false. The district court expressly stated that it would 

"provide no guarantee that the seat up for election in 1990 will 

in fact be 'assigned' to Orleans Parish." Slip op. at 27 

(emphasis added); see slip op. at 24 n. 55.; 26-27 & n. 59. The 

district court based this conclusion on several factors: the 

possibility that the remedy would not involve single-member 

districts at all; the possibility that it might approve single-

member districts that did not create an Orleans Parish district; 8 

and the possibility that, even if the present district is divided 

and an Orleans Parish district created, the seat up in 1990 might 

be "assigned" to the suburban parishes. 

In fact, it is not inconceivable that the same problem will 

arise in 1990 as the district court faced in 1988. _If the State 

ultimately does file its long-r:romised petition for certiorari, -, W 

the Supreme Court may delay disposing of the petition in this 

case until next spring or later, see Revesz & Karlan, Nonmajority  

Rules and the Supreme Court, 136 U. Pa. L. Rev. 1067, 1109-11 

8 Indeed, the Court noted that a bill currently pending 
in the State Legislature would do precisely that. 

Appellees take the position that section 2 requires a remedy 
that affords blacks an equal opportunity to elect their preferred 
candidate and thus the creation of two majority-white single-
member districts would fail to cure the existing violation, since 
it would continue to submerge a politically cohesive black 
electorate. Cf. Major v. Treen, 574 F. Supp. 325 (E.D. La. 1983) 
(three-judge court) (finding that congressional districting 
scheme involving essentially the same area as the First Supreme 
Court District violated section 2 by splitting Orleans Parish). 

22 



(1988) (discussing the Supreme Court's "hold" policy which has 

sometimes held petitions for two years); then, when the case 

returns to the district court, there may be a delay in deciding 

the merits; 9 there may also be another round of appeals, 

petitions for rehearing and rehearing en banc, and requests for 

Supreme Court review. If the process just described takes 

roughly eighteen months (a perfectly reasonable estimate), then 

in the spring of 1990, the black community will once again face 

elections from a multi-member, multi-parish, predominantly white 

district; candidates dependent on its support will once again be 

deterred from running; and the State may once again argue, for 

the same reasons it has now advanced, that the election should go 

forward, and that black voters can be assigned the "1998" seat. 

Having filed this lawsuit in September 1986, appellees are 

entitled to a fair election in 1988, not one potentially a decade 

from now. 

9 Appellees informed the district court in June that they 
were prepared to move for summary judgment immediately, but the 
district court expressed its reluctance to decide such a motion 
until the State had answered the complaint (which it still has 
not done) and, perhaps, had had the opportunity to conduct some 
discovery. 

It is possible, of course, that the district court will deny 
any motion for summary judgment and require a full trial. 
Although there is currently an October 19, 1988, trial date, the 
State is unlikely to be willing to go to trial then if the 
Supreme Court has not yet denied its petition for certiorari. 

If the district court grants summary judgment, the State may 
appeal to this Court and again seek certiorari, once more 
delaying a final resolution. 

23 



B. The Fact that an Illegal Election May Be Set 
Aside Does Not Justify Letting One Proceed 

The State's second argument regarding the question of 

irreparable injury is even more specious than its first. The 

reason why courts have permitted the drastic remedy of setting 

aside elections after they occur is precisely because it was 

impossible, despite due diligence, to prevent the elections from 

occurring in the first place. See, e.g., Hamer v. Campbell, 358 

F.2d 215 (5th Cir. 1966). In this case, however, it is eminently 

possible to stop the election process from going forward. The 

official state machinery for the October election has not yet 

been engaged. Evidence in the record suggests that only one 

candidate has expended any time, effort, or money in the 

expectation of an election. Qualification has not yet taken 

place. Ballots have not yet been prepared or distributed. Cf. 

Reynolds v. Sims, 377 U.S. at 585-86 (discussing factors relevant 

to decision whether to enjoin elections). 

In light of these circumstances, and its understanding of 

the practical realities of incumbency and judicial campaigns in 

the New Orleans metropolitan area, the district court clearly has 

a sufficient basis to conclude that it would be appropriate to 

enjoin the election now, rather than to set it aside after it 

occurred. Nothing in the State's brief even remotely suggests 

how this conclusion constituted an abuse of discretion. 

24 



IV. THE DISTRICT COURT'S ASSESSMENT OF THE RELATIVE HARMS 
OF GRANTING OR DENYING PRELIMINARY RELIEF FELL WELL 
WITHIN ITS DISCRETION 

The State's argument regarding the alleged harms that will 

befall it, white candidates, and white voters has already been 

addressed. None of those harms can outweigh the palpable wrong 

of permitting an election to go forward when it is clear that the 

election scheme violates the Voting Rights Act. 

This is not a case where the district court failed to 

perceive, or deliberately ignored, the potential pitfalls of 

enjoining the upcoming election. See slip op. at 31-34. Rather, 

the district court, faced with the arguments and evidence 

presented by the parties, found that the irreparable injury to 

plaintiffs and to the polity as a whole of sanctioning the use of 

a racially discriminatory electoral practice and concluded that 

it should not permit a presumptively invalid election to go 

forward when the result would be not only to once again subject 

black voters to a discriminatory system, but would be to further 

entrench that system, erode confidence in the judicial system, 

and impair the nonpolitical and deliberative character of the 

Louisiana Supreme Court. And the district court made clear that 

it stood ready to fashion additional relief if such relief was 

necessary to permit the continued efficient functioning of the 

Louisiana Supreme Court while the injunction remained in place. 

Slip op. at 32. In light of that careful balancing, the State 

has provided no basis for this Court to conclude that the 

district court abused its discretion. 

25 



CONCLUSION 

For the reasons stated above, this Court should affirm the 

order of the district court. 

Respectfully submitted, 

WILLIAM P. QUIGLEY 
901 Convention Center Blvd. 
Fulton Place 
Suite 119 
New Orleans, LA 70130 
(504) 524-0016 

ROY RODNEY, JR. 
643 Magazine Street 
New Orleans, LA 70130 
(504) 586-1200 

PAMELA S. KARLAN 
University of Virginia 
School of Law 
Charlottesville, VA* 22901 
(804) 924-7810 

• 

26 

JULIUS L. CHAMBERS 
CHARLES STEPHEN RALSTON 
C. LANI GUINIER 
JUDITH REED 

99 Hudson Street, 16th Floor 
New York, New York 10013 
(212) 219-1900 

RON WILSON 
Richards Building, Suite 310 
837 Gravier Street 
New Orleans, LA 70112 
(504) 525-4361 



UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANAO 
. • 

RONALD CHISOM, ET AL. 

VERSUS 

EDWIN EDWARDS, ET AL. 

OPINION 

- 2 36 Eli 188 

, 

Civil Action 

No. 86-4075 

Section IIAII 

SCHWARTZ, J. 

This matter came before the Court on June 29, 1988 for hear-

ing on plaintiff's motion for preliminary injunction. For the 

following reasons, the Court now GRANTS the motion. 

This is a voting discrimination case. Plaintiffs allege that 

the present. system for electing the two Louisiana Supreme Court 

Justices from New Orleans area improperly dilutes the voting 

strength of black Orleans Parish voters. Plaintiffs now seek to 

enjoin the upcoming election on October 1, 1988 for one of the two 

seats. 

Because the Court finds a substantial likelihood, based on 

solely on the limited evidence presented and as discussed below, 

that plaintiffs will succeed on the merits and finds it would be 

grossly unfair to the public, including the plaintiffs, to permit 

the election to proceed, the Court exercises its discretion to 

grant the preliminary injunction pending the final resolution on 

the merits. 

ZNIE OF 01111 

-1-



Having considered the stipulations made, the affidavits pre-

sented, the record, the arguments of counsel, the briefs of the 

amici curiae, and the applicable law, the Court rules as follows. 

To the extent any of the following findings of fact constitute 

conclusions of law, they are adopted as conclusions of law; to the 

extent any of the following conclusions of law constitute findings 

of fact, they are adopted as findings of fact. 

I. 

The fifty United States have a large array of methods for 

selecting their judicial branches. These methods range from 

gubernatorial appointments to "Missouri-plan" appointments with 

noncompetitive retention elections to legislative elections to 

nonpartisan elections to partisan elections. The vast majority of 

states (38 states) choose their judiciary through elective sys-

tems for at least a portion of their judicial posts. . Louisiana, 

chooses all its judiciary through nonpartisan elections. 

Louisiana has had eleven State Constitutions. Five of these 

have provided for appointive systems in selecting the justices to 

the Louisiana Supreme Court, I. while an equal number (including the 

present Constitution of 1974) has provided for elective systems; 2 

the remaining one provided for an appointive system, but was later 

La. Const. of 1812, art. 3, § 9; La. Const. of 1845, art. 50; La. Const. 
of 1864, art. 79; La. Const. of 1868, art. 75; La. Const. of 1879, art. 82. 

2  La. Const. of 1852, art. 63; La. Const. of 1861, art. 63; La. Const. 
1913, art. 86; La. Const. of 1921, art. 7, § 7; La. Const. of 1974, art. 5, § 

22(A). 



amended to provide for an elective system. 3 The present constitu-

tional provisions received pre-clearance approval by the U.S. 

Attorney General pursuant to section 5 of the Voting Rights Act. 4 

The Louisiana Supreme Court presently consists of seven jus-

tices. 5 The justices are elected from six Supreme Court Dis-

tricts, 8 and each serves for terms of ten years.' Five of the 

districts elect one justice each, but one district--the First 

Supreme Court District--elects two justices. 8 

3  La. Const. of 1898, art. 86, as amended in 1904. 

4 42 U.S.C. § 1973c (1982). On November 26, 1974, q. Stanley Pettinger, 
Assistant Attorney General for the Civil Rights Division, U.S. Department of 
Justice, sent the following two-paragraph letter to Kenneth C. DeJean, Assis-

tant Attorney -General, Louisiana Department of Justice: 
This is in reference to your submission of the Louisiana State Consti-

tution submitted to the Attorney General pursuant to Section 5 of the 
Voting Rights Act of 1965. Your submission was received complete (with 
the exception of [an immaterial portion of 1974 Constitution)), on Octo-

ber 3, 1974. 
The Attorney General does not interpose an objection to the completed 

part of the submission. However, no decision yet can be made with regard 

to [the immaterial portion). We feel a responsibilAtY to point out that 
the failure of the Attorney General to object to the completed part of 
the submission does not bar any subsequent judicial action to enjoin the 

enforcement of such changes. We also would like to call to your atten-

tion [information about the immaterial portion). 

La. Const. of 1974, art. 5, § 3; La. Rev. Stat. Ann. § 13:101 (West 1983). 

6 La. Const. of 1974, art. 5, § 22(A); La. RSA § 13:101. While the provi-
sion in the 1974 Constitution on selecting judiciary members does not specifi-
cally refer to "justices," but rather only to "judges," the term "judges" as 
used in § 22(A) appears to apply equally to Louisiana Supreme Court justices as 
well. See Calogero v. State ex rel. Treen, 445 So. 2d 736, 737-38 (La. 1984); 

id. at 741 (Marcus, J., dissenting) ("Under the new constitution, the term of a 
supreme court 'judge' shall be ten years."); see also La. Const. of 1974, art. 
5, § 4 (referring to supreme court members as "judges"); id. art. 5, § 22(B) 
(this subsection on vacancies "in the office of a judge" provides for vacancies 
on the supreme court); La. RSA § 13:74 (referring to both "judges of the su-

preme court" and "the chief justice"). 

La. Const. of 1974, art. 5, § 3. 

a Id. art. 5, § 4 (incorporating La. Const. of 1921, art. 7, § 9); La. RSA 

§ 13:101. 

-3-



The First Supreme Court District covers an area around metro-

politan New Orleans; specifically, it consists of the parishes of 

Orleans, St. Bernard, Plaguemines, and Jefferson. 9 The two judi-

cial seats assigned to this district are not filled in the same 

election year. The term on one of these seats, the one presently 

held by Justice Pascal F. Calogero Jr., is scheduled to expire on 

December 31, 1988 and to be filled by election on October 1, 1988; 

the term on the other, presently held by Justice Walter F. Marcus 

Jr., is scheduled to expire on December 31, 1990 and to be filled 

by election in the fall of 1990. 

Earlier this year, during the current state legislative ses-

sion, Representative Bruneau introduced House Bill No. 1630, which 

would create seven new single-member districts for the Louisiana 

Supreme Court. It appears that a house committee passed on the 

bill favorably by .a four-to-one majority on May 30, that the bill 

came up for vote in the House that same day but failed for being 

four votes short of the necessary two-thirds majority, l' and that 

the bill remains viable but with no further action thereon having 

been taken since May 30. 

According to the 1980 Census, the total population of the 

First Supreme Court District is as follows: 

1 Total 1 % Black  
Orleans Parish 557,515 55.25% 
Jefferson Parish 454,592 13.89% 
St. Bernard Parish 64,097 3.73% 
Plaguemines Parish 26,049 21.12%  

TOTAL 1,102,253 34.39% 

Id. (incorporating La. Const. of 1921, art. 7, § 9); La. RSA § 13:101(1). 

10 See La. Const. of 1974, art. 5, § 4. 

• :".:* 



According to the Louisiana Elections Commissioner, the following 

figures reflect the district's number of registered voters by race 

as of March 31, 1987: 

Orleans Parish 
Jefferson Parish 
St. Bernard Parish 
Plaquemines Parish 

TOTAL 

Total J White 
251,359 118,232 
199,534 174,742 
40,086 38,508 
15,198 11,376 

506,177 342,858 

Black ) % Black  
131,726 52.4% 
23,825 11.9% 
1,577 3.9% 
2,825 18.6% 

159,953 31.6% 

According to the 1980 Census, the total populations and racial 

breakdowns of the six Supreme Court Districts are as follows: 

District 
1 
2 
3 
4 
5 
6 

TOTAL 

Total Pop. 
1,102,253 

582,223 
692,974 
410,850 
861,217 
556,383 

4,205,900 

White 
698,418 
386,283 
537,586 
274,007 
596,972 
418,906 

2,912,172 . 

% White 
63.4% 
66.3% 
77.6% 
66.7% 
69.3% 
75.3% 
69.2% 

According to the 1980 Census, certain 

ish are as follows: 

Persons age 25 or over who were 
high school graduates 

Persons age 25 or over who had completed 
fewer than eight years of, school 

Per capita income 
Median household income 
Mean household income 
Median family income 
Mean family income 
Families with incomes in 1979 

below the poverty level 

Persons with incomes in 1979 
below the poverty level 

Persons with incomes in 1979 that 
were below 75% of the poverty level 

Housing units with no telephones 
Housing units with no vehicle available 

1 Black 
379,101 
188,490 
150,036 
134,534 
256,523 
129,557 

1,238,241 

statistics 

) for whites 

70.8% 

11.2% 
$9,781 

$15,605 
$21,975 
$21,544 
$28,496 

7.4% 

11.5% 

8.0% 
6.8% 
20.8% 

At present', blacks represent a majority of 

% Black 
34.4% 
32.4% 
21.7% 
32.7% 
29.8% 
23.3%  
29.4% 

for Orleans 

for blacks . 

46.9% 

21.8% 
$3,985 
$8,847 

$12,159 
$10,516 
$13,727 

33.4% 

37.3% 

29.1% 
14.2% 
42.4% 

the total 

Par-

popu-

lation, the voting-age population, and the registered voters In 

Orleans Parish: 

-5-



In Major v. Treen," a state-wide case under section 5 of the 

-.Voting Rights Act, the .court found. the following: In 1898, Loui-

siana imposed property and educational qualifications on the fran-
. 

• chise." Further, in 1898, Louisiana adopted a "grandfather 

• clause" for the purpose of allowing whites who did not otherwise 

qualify for registration, but not similar blacks, to vote." In 

1923, Louisiana authorized the use of white-only primaries, which 

continued until such use was struck down by the U.S. Supreme Court 

in 1944. 3-4 In the 1950s, Louisiana adopted citizenship tests and 

anti-single-shot provisions." In 1959, Louisiana established a 

majority-vote requirement for election to party . committees. Each 

of these acts, the court found, was instituted in part to diminish 

the political power of black residents." 

The court further found the following: Voting in elections 

involving black candidates for political office in Orleans Parish, 

including elections involving black candidates seeking judicial 

office, reflect a substantial correlation between the race of 

11 

12 

13 

14 

574 F. Supp. 325 (E.D. La. 1983) (three-judge court). 

See La. Const. of 1898, art. 197, 5 3. 

See id. art. 197, 5 5. 

See Smith v. Allwright, 321 U.S. 649, 64 S. Ct. 757, 88 L.Ed. 987 (1944). 

ls For a description of how single-shot (bullet) voting works, see City of 
Rome v. United States, 446 U.S. 156, 184 n.19, 100 S. Ct. 1548, 1565 n.19, 64 
L.Ed.2d 119 (1980). While the context of corporate rights is different, its 
concerns with minority voting votes provides instructive analogy. Cf., e.g., 
La. Rev. Stat. Ann. 13:75(1) (West 1969) (generally providing for plurality 

vote at-large elections for corporate directors). 

16 See Major, 574 F. Supp. at 340. 

-6-



S. • 
voters and the selection of certain candidates. 1'7 White voters 

within the First District generally do not support black candi-

dates, and vice versa., in elections involving .both black ,and white 

candidates.' 

The court further found the following: Louisiana enforced a 

de jure policy of racial segregation in public education, trans-

portation, and accommodations until these practices were outlawed 

by the Supreme Court and Congress." Until at least 1981, Louisi-

ana operated a dual public university system.' Until the late 

1960s, public facilities in Louisiana were segregated.' The 

population growth of the suburban parishes adjacent to Orleans 

Parish was partly due to •the exodus from New Orleans of white 

families seeking to avoid court-ordered desegregation of the 

city's public schools; the white voters of these suburban parishes, 

were not receptive to black candidates.' 

In Citizens for a Better Gretna v. City of Gretna," the dis-

trict court found legally significant racial bloc voting in cer-

tain city alderman elections in Jefferson Parish. 

17 Id. at 337-38. 

Ia Id. 

'9 Id. at 340-41. 

2° Presently pending before this Court sitting as a three-judge court is a 
summary judgment motion by the federal government that Louisiana is still oper-
ating a dual system of higher education. See United States v. State-of Louisi-

ana, Civ. 80-3300. 

21 

22 

Major, 574 F. Supp. at 341. 

See id. at 339. 

23 636 F. Supp. 1113 (E.D. La. 1986), aff'd, 834 F.2d 496 (5th Cir. 1987). 

-7-



In the twentieth century, no black person has served on the 

Louisiana Supreme Court. In the twentieth century, at least two 

black persons have sought election to the Louisiana Supreme Court 

from the First Supreme Court District.' In 1972, Judge Ortique 

ran for the seat now held by Justice Calogero, with the following 

results: 

Candidate 

Ortique 
Calogero 
Redmann 

Sarpy 

1 Total 1 
27,326 
66,411 
21,865 
74,320 

Orleans Parish 
21,224 
33,700 
10,240 
34,011 

Judge Ortique thus received 21.4% of the votes in Orleans Parish. 

Also, in 1972, a black man named Amedee ran for the seat now held 

by Justice Marcus, with the following results: 

Candidate 
Amedee 
Marcus 
Bossetta 
Garrison 
Samuel 

1 Total 1 
11,722 
78,520 
35,267 
51,286 
25,659 

Orleans Parish 
8,847 
47,725 
19,115 
25,437 
6,042 

Mr. Amedee thus received 8.3% of the votes in Orleans Parish. At 

that time, blacks represented 33.4% of the registered voters in 

Orleans Parish. 

Running an effective campaign for a seat on the Supreme Court 

from the First Supreme Court District requires significant lead 

time to obtain endorsements, raise funds, and set up an effective 

campaign organization to publicize one's candidacy and "get out 

the vote." * 

In connection with their motion, plaintiffs have submitted 

24 In their brief, plaintiffs stated that• no black person had ever sought 
such election. See Statement No. 61 of Plaintiffs' Statements of Uncontested 
Material Fact. At oral argument, however, they conceded that their statement 

was in error. 

-8-



five affidavits: one by statistician Dr. Richard L. Engstrom, one 

by Civil District Court Judge Revius 0. Ortique Jr., one by former 

Fourth Circuit Judge Israel M. Augustine Jr., one by Civil Sheriff 

Paul R. Valteau Jr., and one by sociologist Silas Lee III. 

Dr. Engstrom has performed two statistical analyses on 27 

separate judicial elections wholly within Orleans Parish during 

the period from September 1978 to October 1987 wherein one or more 

black candidates ran against one or more white candidates. He 

used the methods of extreme case (or homogeneous precinct) analy-

sis and bivariate ecological regression, which methods were ap-

proved by only a plurality of the U.S. Supreme Court in Thornburg 

v. Gingles. 25 He concluded "that voting within Orleans Parish in 

judicial elections reflects racial polarization, a5 that term is 

defined in Gingles." 

Judge Ortigue, a black Orleans' Parish resident, was elected 

in 1979 as a judge on the Civil District court for Orleans Parish, yzvt. 

the State's trial court of general jurisdiction in Orleans Parish. 

In 1984, he was re-elected to a six-year term without opposition. 

25 478 U.S. 30, , 106 S. Ct. 2752, 2772, 92 L.Ed.2d 25 (1986) (Brennan, 

J., for plurality on this point); see also id. at , 106 S. Ct. at 2783-84 
(White, J., concurring in judgment and disagreeing with Brennan, J., on this 
point); id. at , 106 S. Ct. at 2792 (O'Connor, J., concurring in judgment) 
("Only a plurality of the Court ... addresses the validity of the statistical 
evidence on which the District Court relied in finding racially polarized vot-

ing in each of the challenged districts."). 
Whether Dr. Engstrom's analysis in this case comports with what even the 

plurality was approving in Thornburg is unclear. While Dr. Engstrom centered 
his analysis in this case on the race of the candidates, the plurality stated 
that "the race of the candidate per se is irrelevant to racial bloc voting 
analysis." Id. at , 106 S. Ct. at 2775. But cf. id. at , 106 S. Ct. at 
2775-76 ("Because both minority and majority voters often select members of 
their own race as their preferred representatives, it will frequently be the 
case that a black candidate is the choice of blacks, while a white candidate is 

. the choice of whites."). 

-9-



He states the following among other things: 

In my contested race, the vast bulk of my financial 
support,. as well as •the majority of the votes I re-
ceived, came from the black community. 

I have seriously considered running for the Loui-
siana Supreme Court from the First Supreme Court Dis-
trict. I believe, however, that the current configura-
tion of the district effectively prevents any black can-
didate from being successful. White voters outnumber 
black voters by a substantial margin due to the inclu-
sion of the suburbs and Orleans Parish in one multi-
member district. Moreover, suburban white voters simply 
will not support a black candidate. Thus, under the 
present scheme, I will not run. Nor do I know of any 
other black candidate with a broad base of support in 
the black community who would undertake the clearly 
futile attempt to achieve election from the First Sup-
reme Court District. 

I am deterred from running by the current configu-
ration of the First Supreme Court District. If, how-
ever, a Supreme Court district were to be created that 
contained only Orleans Parish, I would run. Such a dis-
trict would offer the black community an excellent op-
portunity to elect the candidate of its choice, because 
blacks constitute a majority of the registered voters in 
Orleans Parish. ... 

He continues by stressing his experience that "fundraising by 

judicial candidates is heavily dependent on the percept_i_nrs of 

potential contributors regarding the likelihood of success" and 

that "incumbency is a tremendous advantage." He thus is of the 

opinion that "allowing the election to go forward as scheduled and 

then scheduling a special election would disadvantage a black can-

didate who chose to contest a fairly districted seat at such a 

special election." He added that an effective campaign for ju-

dicial office requires about 9 to 18 months "lead time" and that 

"if the upcoming election were to go forward, it would be impos-

sible for a black candidate to mount an effective campaign." 

Former . Judge Augustine, another black Orleans Parish resi-

dent, was a judge of the Criminal District Court for Orleans Par-



ish from 1969 to 1981, at which time he was elected to the Fourth 

Circuit Court of Appeal, on which he served until his voluntary 
• • . .•• . -.• 

retirement in 1984. In his two contested races, he "received most 

of [his] financial and political support from the black communi-

ty." He believes he "was able to win solely because the district 

in which [he] ran was predominantly black." He then reiterates 

the same basic conclusions as does Judge Ortique. 

Civil Sheriff Valteau was elected to his position in 1982. 

He is "convinced that the only place that a Black candidate has a 

'fair opportunity' to be elected to public office is in Orleans 

Parish." He adds that "it is virtually impossible to elect a 

Black person who is required to seek office from a multi-parish 

district." 

Mr. Lee -is a sociologist instructor and president of a public 

opinion, research, and consulting firm in New Orleans. He is of 

the 'opinion that "the chance that a black candidate could win a 

seat on the Louisiana Supreme Court from the First Judicial Dis-

trict in its present form is nonexistent" but that if a black 

candidate could win an election "from a district containing only 

Orleans Parish." He believes the upcoming election should be 

enjoined "because, even if the district were to be redrawn later 

this spring to include only Orleans Parish, it would be difficult, 

if not impossible, for a black candidate to mobilize financial and 

political support in the short time remaining before the October 

1, 1988, election." 

Defendants presented almost no evidence in opposition to 

plaintiffs motion. They presented just two affidavits, one by 



Associate Justice Calogero and one by Gregory Pechukas. 

. Justice Calogero was first elected in 1972 to fill a two-year - . 

unexpired term for the First Supreme Court District. In 1974, he 

was reelected, and that term is due to expire on December 31, 

1988. 26 He intends to seek reelection this fall and has begun 

preparing for the upcoming election. Included among his prepara-

tory efforts are "his organizing committees, formation of a Calo-

gero Campaign Committee, and conducting fundraising activities." 

He is aware that at least one other person, "a woman attorney" in 

his affidavit but known to this Court to be Darleen M. Jacobs, 

intends to run for the 1988 seat and has begun similar preparatory 

efforts. He adds that he has been living in Jefferson Parish 

since 1984, while Justice Marcus has been living in Orleans Par-

ish. 

Mr. Pechukas is the Louisiana Supreme Court's Director of the 

Central Staff, which assists in the review of all criminal cases 

on direct appeal and virtually all other criminal cases. Under 

Louisiana law, the Supreme Court shall review every sentence of 

death. 27 Since 1976, the Louisiana Supreme Court has considered 

82 death penalty appeals, involving 74 defendants. In 49 of these 

appeals, the Supreme Court affirmed the defendant's conviction and 

sentence; in 30 of these appeals, the Supreme Court reversed the 

defendant's conviction and sentence, or affirmed the conviction 

'6 Calogero v. State ex rel. Treen, 445 So. 2d 736 (La. 1984) (holding in a 

declaratory judgment action that Justice Calogero's present term would be for 
14 years, and not 10 years). 

27 La. C.Cr.P. art. 905.9; see La. Const. of 1974, art. 5, S 5(D)(2) ("a 
case shall be appealable to the supreme court if the defendant has been 

convicted of a felony"). 



but reversed the sentence; in the remaining 3 appeals, the Supreme 

Court remanded the case to the district court for further evi-

dence. Of the 49 affirmances, one case was decided by a 4-3 vote; 

in two others of the affirmances, rehearings were denied by a 4-3 

vote. Of the 30 reversals of conviction and sentence or of sen-

tence alone, 6 were decided by a 4-3 vote. 

B. 

Plaintiffs filed this action on September 19, 1986. Named as 

plaintiffs are Ronald Chisom, Marie Bookman, Walter Willard, Marc 

Morial, and Henry A. Dillon III, all black registered voters in 

Orleans Parish, as well as the Louisiana Voter Registration/Educa-

tion Crusade, 'a nonprofit organization comprised of black Orleans 

Parish registered voters active in voting rights issues. The 

plaintiffs are suing, in a class action under F.R.Cilz.P. 23(b)(2), 

on behalf of themselves and all other black registered voters in 

Orleans Parish. Named as original defendants are Edwin Edwards in 

his capacity as Governor of the State of Louisiana, James H. Brown 

in his capacity as Secretary of the State of LoUisiana, and Jerry 

M. Fowler in his capacity as Commissioner of Elections of the 

State of Louisiana. 28 Plaintiffs allege that the present system 

for electing the two seats in the First Supreme Court District for 

the Louisiana Supreme Court violates section 2 of the Voting 

28 Buddy Roemer has succeeded Edwin Edwards as governor and W. Fox McKeith-
en has succeeded Jim Brown as secretary. Pursuant to F.R.Civ.P. 25(d)(1), 

then, these new officials have been automatically substituted as defendants. 

-13-



Rights Act as amended. 29 

On defendants' motion to dismiss, this Court held that plain-

tiffs failed to state a cause of action under section 2 because 

judges are not "representatives" of the body politic. 3' On Febru-

ary 29, 1988, the Fifth Circuit reversed, holding that section 2 

applies to judicial elections."- On May 27, 1988, the Fifth Cir-

cuit denied defendants' motion for rehearing and suggestion for 

rehearing en banc and ordered that mandate issue immediately. At 

oral argument, defendants stated they anticipate filing, after the 

issuance of this opinion but within the time limits permitted by 

the Supreme Court rules, a petition for a writ of certiorari. 

Following the Fifth Circuit panel's decision on February 29 

but prior to its denial for rehearing on May 27, plaintiffs moved 

in the Fifth Circuit for a preliminary injunction to enjoin the 

upcoming election for Justice Calogero's seat pending disposition 

of their claim in the U.S. Supreme Court, On May 27, 1987, the 

panel denied the motion for failure to comply with F.R.Civ.P. 

8(a), "which provides that an injunction request must ordinarily 

be made in the district court on first instance." The panel added 

the following dictum: - 

In the event the plaintiffs assert their injunction 
request to the district court, whichever way the dis-
trict court rules, this Court notes that any election 

29 42 U.S.C. S 1973. Their complaint also alleges that this system violates 

the fourteenth and fifteenth amendments. 

30 659 F. Supp. 183 (E.D. La. 1987). The Court also dismissed the consti-
tutional claims for failure of plaintiffs to .amend their complaint to allege 

discriminatory intent. II. at 187-89. 

31 839 F.2d 1056 (5th Cir. 1988). The Fifth Circuit also reversed the dis-

missal of the constitutional claims. Isl. at 1064-65. 

-14-



I 

held under an election scheme which this Court later 
finds to be unconstitutional or in violation of the 

-.Voting Rights Act is subject to being set aside and the 
office declared to be vacant. See Hamer v. Campbell, 
358 F.2d 215 (5th Cir. 1966). 

Plaintiffs now move this Court for the same preliminary injunc-

tion. 32 

At the hearing, upon the Court's initiative, all counsel 

consented to the Court's considering the evidence for the motion 

as including the entire documentary record before the Court. Fur-

ther, upon the Court's initiative, all counsel consented to the 

Court's certifying the plaintiff class on the basis of the present 

record and for the purpose of the preliminary injunction motion 

only. 

In order for plaintiffs to obtain a preliminary injunction, 

they must prove each of four prereguisite6; 

(1) a substantial likelihood that plaintiffs will pre-
vail on the merits; 

(2) a substantial threat plaintiffs will'suffer irrepar-
able injury if the injunction is not granted; 

(3) that the threatened injury to plaintiffs outweighs 
the threatened harm the injunction may do to defen-

dants; and 
(4) that granting the injunction will not disserve the 

public interest. 33 

As explained below, the Court finds plaintiffs to have sufficient-

ly satisfied all four elements and concludes, in its discretion, 

that the injunction should issue. 

• 
32 

33 

Plaintiffs seek a preliminary injunction on just the section 2 claim. 

Canal Authority v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974). 

-15-



A. Merits  

The Court first disposes of defendants' argument concerning 

their intended petition for a writ of certiorari and its effect on 

the first element of the preliminary injunction test. Confident 

of this Judge's opinion that section 2 does not and should not 

apply to judges, defendants suggest that plaintiffs cannot show "a 

substantial likelihood" that their claim will survive U.S. Supreme 

Court review of the Fifth Circuit's opinion to the contrary. 

To quote Judge Rubin in a recent case on facts more pressing 

for the party aggrieved by a Fifth Circuit precedent (the appel-

lant was challenging his death penalty conviction): 

In the absence of a declaration by the Supreme 
Court that executions should be stayed in cases pre-
senting the issue raised by [the appellant before the 
Fifth Circuit], we must follow our circuit's precedents 
and deny both a certificate of probable cause and a stay 
of execution on this issue. The grant of certiorari in 
Hitchcock .and McCleskey is insufficient per se to raise 
in this case the requisite to a certificate of probable 
cause: that the petitioner presents an issue that jur-
ists of reason would consider debatable on the evidence 
proffered to us, but the fact that the Court has agreed 
to consider these cases does not alter the authority of 
our prior decisions." 

while this Court adheres to its original opinion, the Fifth Cir-

cuit has spoken; this Court is bound by the Fifth Circuit's hold-

ing, unless and until that holding is either expressly or tacitly 

overruled judicially by either the Fifth Circuit or the Supreme 

Court or legislatively by Congress. Stated another way, the "sub-

stantial likelihood" element concerns issues of fact in each case 

as they relate to the law, and not solely issues of law. The 

appropriate question is whether there is a substantial likelihood 

34 Wicker v. McCotter, 798 F.2d 155, 157-58 (5th Cir. 1986). 

-16-



that plaintiffs will have sufficient evidence to satisfy their 

burdens of proof under the law as established at this time, not 

whether there is substantial likelihood that a point of law appli-

cable to the case will be modified by a reviewing authority. 

Although this Court recognizes the nation-wide impact of the 

issues involved in this case inasmuch as over two-thirds of the 

states choose their judges through elections and believes that 

U.S. Supreme Court review is warranted to settle the important 

question of federal law in extending section 2 to apply to persons 

who do not represent voters, this Court is not at liberty to as-

sess plaintiffs' likelihood, or unlikelihood, of success at the 

Supreme Court. 35 

In Thornburg v. Gingles /36 a case concerning a challenge to 

an at-large election system for certain legislative positions, the 

Supreme Court, for the first time, considered the 1982 amendments 

to section 2 of the Voting Rights Act. Now that it is. the law of 

this case that section 2 applies to judges, this Court must apply 

the rules of Thornburg and its progeny.' 

's Even if the appropriate understanding of the substantial-likelihood ele-
ment were to require district courts to predict a party's "odds" upon appellate 
review--a seemingly quite unjusticiable function--this Court would have to 
reach the same conclusion in this particular case; in light of the unanimous 
panel opinions of the Fifth Circuit, Chisom, 839 F.2d 1056, reh'g en banc de-
nied, and the Sixth Circuit, Mallory v. Eyrich, 839 F.2d 275 (6th Cir. 1988), 
and the lack of any other, conflicting circuit opinions, this Court would have 
to ignore the realities of the judicial process in order to conclude otherwise. 

36 478 U.S. 30, 106 S. Ct. 2752, 92 L.Ed.2d 25 (1986). 

37 For Fifth Circuit progeny, see Campos v. City of Baytown, Texas, 840 
F.2d 1240, 1242-45 (5th Cir. 1988) (affirming on liability, but vacating remedy 
in a challenge to an at-large system for electing city council members); Citi-
zens for a Better Gretna v. City of Gretna, Louisiana, 834 -F.2d 496, 498-99 
(5th Cir. .1987); Monroe v. City of Woodville, Mississippi, 819 F.2d 507, 511 

. (5th Cir. 1987) (per curiam) (reversing summary judgment dismissal of challenge 



In Thornburg, a majority of the Court set forth an illustra-

tive list of typical factors to be considered in evaluating a sec-

tion 2 claim: 

the history of voting-related discrimination in the 
State or political subdivision; the extent to which 
voting in the elections of the State of political sub-
division is racially polarized; the extent to which the 
State or political subdivision has used voting practices 
or procedures that tend to enhance the opportunity for 
discrimination against the minority group, such as un-
usually large election districts, majority vote require-
ments, and prohibitions* against bullet [single-shot] 
voting; the exclusion of members of the minority group 
from candidate slating process; the extent to which 
mihority group members bear the effects of past dis-
crimination in areas such as education, employment, and 
health, which hinder their ability to participate effec-
tively in the political process; the use of overt or 
subtle racial appeals in political campaigns; and the 
extent to which members of the minority group have been 
elected to public office in the jurisdiction. 38 

For section 2 challenges to multimember districts, as here, the 

Court suggests that the most important of these factors are "the 

extent to which members of the minority group have been elected to 

public office in the jurisdiction" and "the extent to which voting 

in the elections of the State of political subdivision is racially 

to at-large city aldermanic election), cert. denied, U.S. , 108 S. Ct. 
774, 98 L.Ed.2d 860 (1988); League of United Latin American Citizens v. Midland  
Independent School District, 812 F.2d 1494, 1496-97 (5th Cir. 1987) (affirming 
order that at-large system of electing board of trustees for school district be 
divided into seven single-member districts), reh'g en banc aff'g district court  

on other grounds, 829 F.2d 546 (5th Cir. 1987) (per curiam). See also Wright  
v. City of Houston, Mississippi, 806 F.2d 634, 635 (5th Cir. 1986) (per curiam) 
(remanding in light of Thornburg); Overton v. City of Austin, Texas, 798 F.2d 

150 (5th Cir. 1986) (per curiam) (same). 

38 478 U.S. at , 106 S. Ct. at 2763-64 (citing with approval Sen. Rep. 
No. 417, 97th Cong., 2d Sess. 28-29 (1982), reprinted in 1982 U.S. Code Cong. & 
Admin. News 177, 206-07); see also Citizens for a Better Gretna, 834 F.2d at 
498-99 ("the Court [in Thornburg) relied substantially on Zimmer as a founda-
tion for the analytical framework prescribed for S 2 claims") (discussing Zim-
mer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc), aff'd on other  
grounds sub nom._ East Carroll Parish School Board v. Marshall/ 424 U.S. 636, 96 

S. Ct. 1083, 47 L.Ed.2d 296 (1976) (per curiam). 

-18-



S. • 

polarized." 39 The other factors are "supportive of, but not es-

sential  minority.voter's claim." 4'"Although many or all of 

the factors are relevant in a challenge to an at-large system, the 

Court concluded that 'the use of multimember districts generally 

will not impede the ability of minority voters to elect represen-

tatives of their choice,' unless 'a bloc voting majority must 

usually be able to defeat candidates supported by a politically 

cohesive, geographically insular minority group."' The Court 

recast these factors into a broad three-part test: 

First, the minority group must be able to demonstrate 
that it is sufficiently large and geographically compact 
to constitute a majority of single-member district. ... 
Second, the minority group must be able to show that it 
is politically cohesive. Third, the minority must 
be able to • demonstrate that the white majority votes 
sufficiently as a bloc to enable it--in the absence of 
special circumstances, such as the minority candidate 
running unopposed--usually to defeat the minority's 

preferred candidate. 42 

The second and third parts, cohesion and majority bloc voting, are 

usually proven by statistical evidence of racially polarized vot-

ing.'" In short, the ultimate finding of minority voter dilution 

is to be based on "the totality of the circumstances. 1144 

39 478 U.S. at n.15, 106 S. Ct. at 2766 n.15. 

40 Id. (emphasis in original). 

41 Campos, 840 F.2d at 1239-40 (quoting Thornburg, 478 U.S. at , 106 S. 

Ct. at 2766) (emphasis in Thornburg). 

.42 478 U.S. at , 106 S. Ct. at 2766-67. 

43 Campos, 840 F.2d at 1243. 

44 Id. (citing Thornburg, 478 U.S. at , 106 S. Ct. at 2782 (Brennan & 
White, JJ.) ("The District Court in this case carefully considered the totality 
of the circumstances"); see also Thornburg, 478 U.S. at , 106 S. Ct. at 2796 
(Stevens, J., dissenting in this part, with Marshall & Blackmun, JJ., joining) 
(stating that J. Brennan's plurality "accurately summarizes" the district 

-19-



Turning to the facts in this case, the Court summarizes the 

pertinent .aspects of the First Supreme Court District elective 

system. The First Supreme Court District is the only multimember 

Supreme Court District and has the largest Supreme Court District 

in population. Elections for the Louisiana Supreme Court are cov-

ered by Louisiana's majority-vote requirement. Because election 

terms for the two seats from the First Supreme Court District are 

staggered, it is impossible for voters within the district to 

"bullet," or "single-shot," vote. 

Defendants' sole evidence (the affidavits of Justice Calogero 

and Mr. Pechukas) do not concern the merits, but rather the equi-

table issue of whether the proposed injunction would be in the 

public interest. Where, as here, a defendant offers no rebutting 

evidence, the plaintiff need only prove a prima facie case on the 

merits in order to satisfy the "merits" element to the preliTinary 

injunction test; in sucn cases, the plaintiff establishes a sub-

stantial likelihood of success by establishing a prima facie case. 

On the one hand, to permit a plaintiff to establish less would 

improperly require the Court to presume the existence of evidence 

the plaintiff may not have or may wish not to present at any final 

hearing on the merits; on the other hand, to require more would 

improperly require the Court to presume the existence of evidence 

the defendant may not have or may wish not to present at any final 

hearing on the merits. In this case, then, the Court must deter-

mine whether plaintiffs have established a prima facie case that 

the present elective system violates section 2. 

court's f indings ) . 

-20-



o 
As for the first of the two critical factors identified in 

Thornburg, it is undisputed that no black person in this century 

has ever served on the Louisiana Supreme Court. 

As for the second of these two factors--the presence of raci-

ally polarized voting--the limited evidence presented establishes, 

at least for this interim prima facie showing, that elections in 

the four parishes that constitute the current First Supreme Court 

District, and in particular judicial elections, may be character-

ized by racial bloc voting. 

Implicit in Judges Ortique and Augustine's affidavits is 

their testimony that black voters in this area contintie to prefer 

black candidates and white voters in this area continue to prefer 

white candidates and that white voters will not vote for black 

candidates, whom black voters prefer.'" Taking judicial notice of 

certain facts found by the court in Major v. Treen, this Court 

remarks that other . black New Orleans roliticians have made the 

same observation." 

Because the statistical method that Dr. Engstrom appears to 

have used has only been approved by a plurality of the Supreme 

45 The affidavits of Judges Ortique and Augustine and of Civil Sheriff Val-
teau focus primarily on the effect of the present elective system on black can-
didates, rather than on black voters. While a majority of the Court in Thorn-
burg rejected the plurality's suggestion that a candidate's race is irrelevant 
and is not to be considered as a statistical factor for determining whether 
racial bloc voting exists, compare 478 U.S. at 106 S. Ct. at 2775-77 
(Brennan, J., joined on *this point by Marshall, Blackmun & Stevens, JJ.) with 
id. at , 106 S. Ct. at 2783-84 (White, J., concurring in judgment) and id. 
at , 106 S. Ct. at 2793 (O'Connor, J., joined by Burger, C.J., & Rehnquist & 
Powell, JJ., concurring in judgment), this Court must emphasize that the vot-
ers, and not the candidates per se, are the central concern of section 2. 
There is enough in the affidavits, however, for the Court to supply sufficient 

relevant inferences about not only candidates, but also voters. 

46 Major, 574 F. Supp. at 338 (citing former Mayor Ernest Morial). 

-21-



Court, 41 because this Court observes that Dr. Engstrom's correla-

tion _coefficients differ from the corresponding coefficients by 

the plaintiffs' expert in Major V. Treen, 48 and because this 

Court's experience has shown that lone statistics not yet sub-

jected to cross-examination (for example, through rebutting stat-

istics) quite often inaccurately describe actuality, the Court 

gives little effect to his statistical findings, beyond his gen-

eral corroborating conclusion that blacks in this district gener-

ally vote for blacks and whites in this district generally vote 

against blacks. 

As for other of the Thornburg factors, the Court takes judi-

cial notice of Louisiana's past de jure policy of voting-related 

racial discrimination. Throughout the earlier part of this cen-

tury, the State implemented a variety of stratagems including 

educational and property requirements for voting, a "grandfather" 

clause, an "understanding" clause, poll' taxes, all-white prim-

aries, anti-single-shot voting provisions, and a majority-vote re-

quirement to "suppresis) black political involvement." 49 Thd 

Court adds, however, that there has been no evidence presented of 

blacks now being excluded from candidate slating processes or of 

the use of overt or 'subtle racial appeals in political campaigns. 

All three practices identified in Thornburg' as tending to 

47 

48 

See supra at page 9 & n.25. 

See id. at 337-38 n.17. 

4' Id. at 340. 

SO 

. 29). 

478 U.S. at , 106 S. Ct. at 2764 (citing Sen. Rep., supra note 38, at 

- 

-22-



exacerbate the diluting effect that at-large elections have on 

minority groups are present in this case. First, the First Su-

preme Court District is an "unusually large election distric[t]." 

Specifically, it has a far larger population than any other Su-

preme Court Districtsi and further is the only multimember dis-

trict in the state. Second, Louisiana has a majority-vote re-

quirement. Finally, the existence of staggered terms for the two 

seats in the First Supreme Court District precludes "single-shot" 

voting.." 

Following Thornburg, this Court also applies its three-part 

test for assessing whether the choice of multimember, rather than 

single-member, districts will "impede the ability of minority 

voters to elect rePresentatives of their choice." 53 As for the 

second and third parts, the Court reiterates its discussion on the 

evidence of racially polarized, or bloc, voting. 54 As for the 

first part, the Court observes that Orleans Parish residents con-

stitute a majority of the residents in the First Supreme Court 

District, that black residents in Orleans Parish represent a maj-

si The Court questions the extent to which this factor is relevant for ana-
lysis of judicial elections. See Wells v. Edwards, 347 F. Supp. 453 (M.D. La. 
1972) (three-judge court) (holding that the "one man/one vote" principle of 
apportionment does not apply to states' judiciaries), aff'd mem. 409 U.S. 

1095, 93 S. Ct. 904, 34 L.Ed.2d 679 (1973). 

52 See City of Rome, 446 U.S. at 185 n.21, 100 S. Ct. at 1566 n.21. 

53 478 U.S. at . 106 S. Ct. at 2766 (emphasis added). The Court must 

reject plaintiffs' broad position that this court may focus wholly on the right 

to vote, without consideration of the necessary consequences therefrom (viz., 
the ability to elect a person of one's choice). References to the abstract 
right to vote would be meaningless unless they necessarily considered the ulti-

mate effect--having the person of one's choice elected or not. 

S4 See supra. text accompanying notes 42-43. 



ority of its residents, and that black voters in Orleans Parish 

represent a majority of its voters. In other words, the class of 

black voters in First Supreme Court District is "sufficiently 

large and geographically compact to constitute a majority in a 

single-member district."' 

In sum, upon considering the totality of the circumstances, 

this Court holds that plaintiffs have established a prima facie  

case that the present elective system for the two seats on the 

First Supreme Court District violates section 2 of the Voting 

Rights Act and thus, in this case, have established a substantial 

likelihood of success on the merits. 

B. Irreparable Injury  

An injury is irreparable if it "cannot be undone through 

monetary remedies."' The right at issue in this case, the right 

to vote, is entirely nonpecuniary, and no &mount of financial com-

pensation can redress its deprivation. 

It appears from the affidavits of Judges Ortigue and Augus-

tine that no potential candidate with a broad base of support from 

the Orleans Parish black voting community is presently intending 

to run for the upcoming election this October because of a percep-

SS By this observation, the Court expresses no opinion whether plaintiffs' 

requested division--one district consisting of Orleans Parish and the other 
consisting of the three surrounding parishes--should be the appropriate remedy. 
The Court observes, however, that improper dilution of minority group voting 
strength may arise from the concentration of the minority voters into a dis-
trict where they represent an excessive majority. See Thornburg, 478 U.S. at 

• n.11, 106 S. Ct. at 2764 n.21. 

Spiegel v. City of Houston, 636 F.2d 997, 1001 (5th Cir, Unit A 1981). SS 

• 

-24-



tion of doomed defeat. s7 Suggesting that they have not yet begun 

"to get the vote out," the two imply that they would not run in 
• 

• 1988 regardless of how this Court may rule. 

Thus, for the period preceding this Court's final resolu-

tions' of the status of Justice Calogero's present seat (however 

long that period may be), if no candidates with large black sup-

port is intending to run, then black voters as well as all other 

voters will suffer no worse if no injunction issues than if one 

does issue--as far as their being able to elect the candidates of 

their choice. On the one hand, if an injunction issues, then the 

seat may continue to be occupied by a justice who won his seat in 

1974 under a voting system that at this preliminary point has been 

determined to have been prima facie illegal. On the other hand, 

if no injunction issues, then the seat shall by occupied by 

57 Because the plaintiff class may include other persons who, unlike Judges 
Ortique nc Augustine, nevertheless intend to run this fall as candidates of 
the black voters' choice, the Court must note the additional irreparable injury 
that may affect plaintiffs if the upcoming election proceeds. If such a black 
candidate would run this year, then the resources from the black community to 
contest any later special election would be diminished by an expenditure of 
effort in a perhaps essentially meaningless election in 1988. To the extent 
the prima facie showing herein is indicative of an actual violation of section 
-2, black voters in 1988 would have the equal opportunity to. try to elect the 
candidate of their choice. That a special. election in the future may be con-
stitutionally proper in no way makes the effects of an improper election any 

more palatable. 

Sa The time of final resolution should not be understood to be any date of 
judgment within the meaning of F.R.Civ.P. 54. Rather, in this context, it 
should be understood as the time when an election is finally held, or an ap-
pointment finally made, in response to the Court's final judgment. If liabil-
ity is ultimately found, then the election (or appointment) will be in some 
yet-to-be-determined form; otherwise, the election will continue under the 

present system. 
While the Court generally speaks •of an appropriate remedy as being an 

elective system, the Court expresses no opinion whether the remedy must be an 
elective system (for, example; the State may enact another method for selecting 
judges) or what elements any elective system must, or may not, have. 



justice who will win the 1988 seat under the same voting system. 

The sole difference is the year in which the person who occupies 

the seat has been or will be elected, for .1.iere has been no mater-

ial change between 1974 (or even earlier) and now in how the seat 

is to be chosen. 

But focus solely on pre-remedy period is too myopic a focus. 

The Court cannot ignore the tremendous power and benefits of in-

cumbency, alluded to by Judge Ortigue 

who are knowledgeable students of the 

and well-recognized by all 

electoral process. If the 

upcoming election were not enjoined, then the (white) person el-

ected this fall would enjoy the enviable position of being a re-

cent incumbent. Because this incumbency advantage would have been 

obtained through a system that, at least under the .instant, inter-

±m prima facie showing, has improperly diluted black voting 

strength, black voters, among others, would be unfairly harmed by 

having the candidates of their choice run under this handicap. 

While Justice Calogero in any event would have an advantage 

as an incumbent elected 14 years ago, this advantage would be 

vastly enhanced he were to run and win again this fall, for his 

name would become vastly fresher in the voters' minds by the time 

the new remedy is implemented, whenever that may be, than other-

wise. By granting the injunction, the Court mitigates the effects 

of any unfair advantage from incumbency. 

Even if plaintiffs prevail on the merits of liability and the 

district is divided into two single-member districts as they re-



quested, 59 this Court can provide no guarantee that the seat up 

for election in 1990 will in fact be "assigned" to Orleans Parish. 

Voters in both new districts will have a claim that their district 

should not served by a justice elected in large measure by voters 

outside the district. Because of the equitable difficulty in de-

ciding which of the two districts should include the 1990 seat and 

which the 1998 seat, this Court may well decide to assign the pre-

sent two positions to the new districts in a wholly random fash-

ion. In such case, if no injunction issues, the Orleans-based 

seat might well be the 1998 seat, thus delaying the parish's black 

voters the benefit of the new election process. 

C. Balance of Harm to Defendants  

The sole defendants in this matter are the governor, the 

secretary of state, and the election commissioner. These three 

appear to have two interests relevazt to this motion: .the secre-

tary and the elections commissioner are responsible for conducting 

elections, while the governor is responsible for seeing that the 

law is executed faithfully. 

The only potential injury defendants may suffer if an injunc-

tion is granted is the expense of conducting a special election, 

The appropriate remedy may well be, for example, a mere elimination of 
the staggered-seat provision, or some other remedy that nonetheless maintains 
the multimember provision. Whatever the remedy, however,' the Court notes that 
section 2 prohibits the fashioning of a district formed for the purpose of as-
suring to an almost absolute certainty or otherwise that a minority candidate 
will be elected. See 42 U.S.C. § 1973(b) ("... 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"). The remedy is only to cure the vote 

dilution. 

-27-



should plaintiffs ultimately fail on the merits." But this 

potential injury alone is insufficient to defeat the injunction. 
• ' • 

First, as the Court has concluded as a matter of law, plaintiffs 

have satisfied the requirement of substantial likelihood on the 

merits. Second, defendants have offered no evidence whatever that 
0 

these costs outweigh the threatened irreparable injury to plain-

tiffs; expenditure of public funds are to be given a minimal 

weight in determining whether or not to insure the application of 

constitutional mandates. Third, it is entirely possible that any 

future election to fill seats on the Supreme Court can be coordi-

nated with regularly scheduled elections, thereby avoiding entire-

ly any such expense.' 

The governor's duty to see that the laws are faithfully ex-

ecuted extends to all citizens of the State. If the present elec-

tion scheme violates section 2 (and thus, under the Supremacy 

Clause, the "laws" that are to be faithfully executed), it injures - 

the entire State, whose laws are expounded by a Supreme Court 

chosen in a fashion that at this preliminary stage appears to be 

prima facie exclusionary. 

D. Public Interest  

If plaintiffs ultimately succeed on liability, as they have 

shown they are substantially likely to do, then one of two scenar-

so While a special election is likely in the event plaintiffs ultimately 
prevail on the merits, such would likely be necessary whether or not this Court 

now enjoins the 1988 election. 

61 See,  Smith v. Paris, 386 F.2d 979 (5th Cir. 1967) (per curiam) 

(shortening terms of officials elected under discriminatory at-large scheme so 
that new elections would coincide with next regularly scheduled elections). 



ios would occur if no injunction were granted: (1) the candidate 

elected in 1988 would serve a full 10-year term or (2) the 1988 

election would have to set aside in order that any new system with 

regard to that seat may be instituted prior to the expiration of 

that 10-year term. Either scenario would disserve the public 

interest. 

Under the .first scenario, the person elected in 1988 would be 

elected from the entire four-parish district. The electorate in 

the new , remedied district to which the 1988 incumbent's seat 

would be allotted would be deprived of its right, under a consti-

tutionally adequate system, to elect a justice from that district 

until at least 1998. Further, Justice Marcus (whose seat is up 

for reelection in 1990) 62 would be deprived the opportunity, usu-

ally afforded to a public official whose district has been divid-

ed, to run for election in either of the two newly created dis-

tricts. The first scenario, then, would be patently unfair. 

Of course, the likelihood that the first scenario would be 

the one that would represent reality is slim. As the Fifth Cir-

cuit hinted in its May 27th dictum, this Court would likely have 

to set such an election aside well before 1998, when the 10-year 

term would normally expire.' But this second scenario is no more 

62 If the remedy chosen completely redraws the present districts throughout 
the state, cf. La. House Bill No. 1630 (1988), then other justices may be ad-

versely affected just as Judge Marcus would be. 

63 See, e.g., Watson v. Commissioners Court of Harrison County, 616 F.2d 
105, 107 (5th Cir. 1980) (per curiam) (service for another four years too 
long); Smith v. Paris, 386 F.2d 979, 980 (5th Cir. 1967) (per curiam) (ordering 
special election at next regularly scheduled election in two years); Hamer V.  
Campbell; 358 F.2d 215, 222 (5th Cir.) (service for another four years too 
long), cert. denied, 385 U.S. 851, 87 S. Ct. 76, 17 L.Ed.2d 79 (1966), cited in 

Chisom, Order (5th Cir. May 27, 1988) (No. 87-3463). 

-29-



palatable. Not only would campaign expenses would incurred and 

.unrecoverable ...and effective campaign strategies revealed, but 

also, perhaps more importantly, voters' confidence in the elec-

toral process would be diminished from a perceived instability in 

our form of government. The nature of federal power to void state 

elections is "[d]rastic, if not staggering," and the exercise of 

such power is "a form of relief to be guardedly exercised."" 

Further, the possibility that such power would be exercised 

may likely dampen interest both in seeking office and in voting 

and may likely diminish financial support for candidates. Other-

wise potential candidates may be unwilling to expend time and 

money or to reveal campaign strategies that may or may not result 

in a term of office of possibly just one or two years. Thus, even 

if the Supreme Court reverses the Fifth Circuit on the 12(b)(6) 

dssue or if this Court ultimately, concludes that defendants should 

prevail on the merits, any election before either such possible 

event would be adversely affected if no injunction were granted. 

As already explained in Part II(B) above, it would be unfair 

to all persons opposing a candidate at any remedial election that 

may be held in the future for the candidate to run 'this fall and 

win under the present scheme and thereby have an unfair advantage 

as a recent incumbent at the subsequent election. 

Additionally, the qualities of deliberation and nonpolitici-

zation that Louisiana's decade-long term of office now helps 

serve--and that should be among the hallmarks of proper judicial 

'4 Bell v. Southwell t 376 F.2d 659, 662 (5th Cir. 1967); Cook v. Luckett, 

735 F.2d 912, 921 (5th dr. 1984). 



functioning--would be undermined by creating, what may be in es-

sence, a one-to-two year term. In this connection, the Court 

notes that many of concerns in holding over representative offi-

cial beyond the end of their term are absent with respect to judi-

ciary officials. Specifically, the concerns that an official may 

no longer fairly represent the partisan interests of his consti-

tuency ought not be present with held-over judges, for, as this 

Court noted in its original opinion, "[jjudges, by their very de-

finition, do not represent voters."' 

While an injunction most certainly will dash the expectations 

of present candidates for the 1988 election, or at least of Jus-

tice Calogero (who it appears has not yet even announced his 

candidacy), no candidate can have a legally cognizable interest in 

being able to seek election from a district whose configuration 

violates the Voting .Rights Act.' • 

nlendants raise the specter of a state constitutional limbo 

where criminal defendants' rights and/or the public's interest in 

its criminal justice system may be jeopardized from an inability 

to form Louisiana Supreme Court majorities of four' once Justice 

ei5 Chisom, 659 F. Supp. at 186. 

6' Cf. Morial v. Judiciary Commission of the State of Louisiana, 565 F.2d 

295 (5th Cir. 1977) (en banc), cert. denied, 435 U.S. 1013, 98 S. Ct. 1887, 56 

L.Ed.2d 395 (1978). 

67 See La. Const. of 1974, art. 5, S 3 ("The supreme court shall be composed 
of a chief justice and six associate justices, four of whom must concur to 

render judgment. ..."). 
Defendants' fear may be largely for naught inasmuch as Louisiana state 

law appears not to require that there always be seven justices sitting for 
every case before the Louisiana Supreme Court: See Jackson v. United Gas Pub-
lic Service Co., 196 La. 1, 198 So. 633, cert. denied, 311 U.S. 686, 61 S. Ct. 

63, 85 L.Ed. 443 (1940). 

-31-



Calogero's present seat expires at the end of this year. This 

Court acknowledges the specter, but observes that a limbo status 
, 

will exist whether the Court enjoins the .upcoming election or 

not. If this Court enjoins the election, then the question of 

how to fill the vacancy under Louisiana Constitutional law ar-

ises." If this Court does not enjoin the election, then the 

question of the legitimacy of the Supreme Court's seven-member 

composition arises. Regardless of the state constitutional pro-

visions, this Court has in any event the power under the Supremacy 

Clause to fashion both preliminary and final equitable relief that 

will both provide plaintiffs with a full and adequate remedy and 

protect other important state interests." In sum, this specter 

does not strongly militate against an injunction. 

E. Exercise of Discretion  

Courts ought wary of enjoining elections when the plain-

tiffs dash into court on the eve of an election,, after the State 

has begun its electoral process and candidates have expended con-

'a While this Court expresses no authoritative position on the point at 
this time, this Court notes that La. Const. of 1974, art. 5, § 22(B) appears to 
provide fully for the contingency of any vacant seat on the supreme court. 

65 See, e.g., Katzenbch v. Morgan, 384 U.S. 641, 86 S. Ct. 1717, 16 L.Ed.2d 

828 (1966) (under the Supremacy Clause, the federal Voting Rights Act trumps 
any state constitutional provisions to the contrary); Kirkland v. New York  
State Dept. of Correctional Services, 628 F.2d 796, 801 (2d Cir. 1980) (power 
of a district court to fashion a remedy for discrimination "is a matter of 
federal law.under the supremacy clause,", not a.matter of "compatibility" with 
state constitution), cert. denied sub nom. Fitzpatrick" v. Kirkland, 450 U.S. 

980, 101 S. Ct. 1515, 67 L.Ed.2d 815 (1981). 



siderable time and money campaigning. 7° But this is not such a 

case. Plaintiffs here brought their suit a full two years before 
- 

the upcoming election and have brought the instant motion so that 

there is even time to appeal this opinion before the three-day 

qualification period at the end of this month. Further, plain-

tiffs filed their lawsuit within three months of Thornburg, the 

first post-1982 amendment Supreme Court case on section 2. Point-

ing out at oral argument that Louisiana has had the same elective 

system .for its justices since prior to the 1965 Voting Rights Act, 

defendants suggest that plaintiffs should have brought their ac-

tion much earlier and should have anticipated the likely delays 

from appellate review. While an earlier determination of these 

issues would have benefitted all concerned, the Court does not 

find plaintiffs' actions to be such that the Court should exercise 

its discretion to deny an injunction despite the plaintiffs' hav-

ing satisfied the four prerequisiteg for such. 

Chief Justice John A. Dixon Jr. has appeared in this matter 

as an amicus curiae and urges three reasons why this Court should 

not grant any injunction: (1) absent a final determination in any 

forum that the elective system violates federal law, "the Louisi-

ana Constitution should be respected"; (2) "the probability that 

the issuance of an injunction in this case will lead to the can-

cellation of numerous state elections scheduled in 1988"; and (3) 

"the issuance of an injunction in this case would ... also set a 

precedent which is likely to be followed by" other U.S. District 

70 See Oden v. Brittain, 396 U.S. 1210, 90 S. Ct. 4, 24 L.Ed.2d 32 (1969) 

(Black, J., in chambers) (denying application to enjoin upcoming election that 

was less than 3 weeks away). 

-33-



Courts. To accept the first point would be to foreclose the op-

tion of.preliminary injunctions on federal constitutional issues 

(viz., Supremacy Clause issues); to accept this point would leave 

many a plaintiff without an adequate remedy. The second and third 

point suggest that this Court's nonbinding precedential authority 

will wreak havoc in the State's elective system. While this Court 

is aware that its opinion may well affect more than the two seats 

at issue in this case, this Court cannot conclude that the neces-

sary result should thus be a failure to act. In every case that 

comes befoEe it, this Court attempts to _administer the law in a 

"just, speedy, and inexpensive" fashion; 7' this case is no differ-

ent. If other courts believe this Court has erred, then they have 

a duty not to follow this Court's lead; if other courts believe 

that this Court has been persuasive and that the cases before them 

concern similar facts and equities, then they may, if they choose, 

follow this Court's course of action. 

In sum, the Court determines, in its discretion, that the 

injunction should issue.' 

Accordingly, the Court hereby ORDERS that pending a final • 

decision by this Court in this action and the entry of a future 

order scheduling elections for the affected Supreme Court justice-

71 Cf. F.R.Civ.P. 1. 

72 In its discretion under F.R.Civ.P. 65(c) and because defendants have not 
requested any security in the event the Court granted an injunction, the Court 
elects to require no security from plaintiffs. Corrigan Dispatch Co. V. Casa 

22.Emm_Eja.:., 569 F.2d 300, 303 (5th Cir. 1978). 



ships, defendants Buddy Roemer in his official capacity as the 

Governor , of Louisiana, W. Fox McKeithen in his official capacity 

as Secretary of the state of Lousiana, and Jerry M. Fowler in his 

official capacity as Commissioner of Elections of the State of 

Louisiana and their officers, agents, servants, employees, and 

attorneys are enjoined and prohibited from conducting any primary 

or general elections in the State of Louisiana to fill the posi-

tion of Justice on the Louisiana Supreme Court from the First 

Supreme Court District. 

New Orleans, Louisiana, this 7th day of July, 1988. 

UNITED STATES DISTRICT 



\