Reply Memorandum to Plaintiffs' Opposition; Black Congressman Elected in Mississippi News Clipping; Reynolds Retreats on Voting Rights News Clipping; Espy's Election in Mississippi Demonstrates Gains in Voting Rights News Clipping; Judicial Elections: The Next Voting Rights Frontier News Clipping

    • 
UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA 

RONALD CHISOM, MARIE BOOKMAN, CIVIL ACTION 
WALTER WILLARD, MARC MORIAL, 
LOUISIANA VOTER REGISTRATION/ NUMBER: 86-4075 
EDUCATION CRUSADE, AND HENRY A. * 
DILLON, III SECTION "A" 

Plaintiffs 

VERSUS 

EDWIN EDWARDS, in his capacity 
as Governor of the State of 
Louisiana, JAMES H. BROWN, in CLASS ACTION 
•his capacity as Secretary of 
State of the State of 
Louisiana; and JERRY M. FOWLER, * 
in his capacity as Commissioner * 
of Elections of the State of 
Louisiana 

Defendants 

* * * * * * * * * * * * * * * * * 

REPLY MEMORANDUM TO PLAINTIFFS' OPPOSITION 

The recent decision in Kirksey v. Allain, 

 F.Supp. , No. J85-0960 (U.S.D.C. So.Dist.Miss. 1987), 

decided by the District Court for the Southern District of 

Mississippi, held that §2 of the Voting Rights Act of 1965 as 

amended applies to judicial elections. We disagree. 

The District Court in Kirksey at p. 35, disposed of 

the Section 2 issue as follows: 

Defendants assert, that Section 2 of the Voting Rights 
Act does not apply to the election of •state court 
judges. Defendants base their argument on the 
inclusion of the word "representatives" in the 
language of the statute. Section 2(b), as amended in 
1982, provides that a violation of Sub-section 2(a) is 
established if, based on the totality of the circum-
stances, it is shown that members of a minority group 
"have less opportunity than other members of the 



electorate to participate in the political process and 
to elect representatives of their choice." 42 U.S.C. 
§1973(b). There is no legislative history of the 
Voting Rights Act or any racial vote dilution case law 
which distinguishes state judicial elections from any 
other types of elections. Judges do not "represent" 
those who elect them in the same context as 
legislators represent their constituents. The use of 
the word "representatives" in Section 2 is not 
restricted to legislative representatives but denotes 
anyone selected or chosen by popular election from 
among a field of candidates to fill an office, 
including judges. Mississippi has chosen to hold 
elections to fill its state court judicial offices; 
therefore, it must abide by the Voting Rights Act in 
conducting its judicial elections, including Section 2 
of the Voting Rights Act. Accordingly, this Court 
concludes as a matter of law that Section 2 applies to 
judicial elections. 

The defendants also argue that since the one-person, 
one-vote doctrine does not apply to judicial 
elections, then by analogy Section 2 of the Voting 
Rights Act does not apply. This argument simply is 
not persuasive. 

The District Court's reasons for finding that Section 

2 applies to State Court judges is, with all due deference, 

,superficial at best. The quote.set out above gives this Court 

very little guidance as to his reasoning and cites no 

authority. The Kirksey case is merely persuasive authority for 

this Court inasmuch as a Mississippi District Court's 

determination is not binding on this Court. 

Defendants attempted to meet the issue head on in our 

original memorandum by pointing out that the Congress of the 

United States made no mention of State Court judges in Secti.on 

2. The Lawyers Committee for Civil Rights Under Law, a major 

group sponsoring Section 2 reform, stated, in this regard, as 

follows: 
• 

In the past, almost all the litigation challenging the 
dilution of minority votes has involved representative 
governmental entities-Congressional districts, state 
legislative districts and county'and city 
districting. During 1986, the Voting Rights Project 
broke new ground by filing the first challenges to 
discriminatory systems for electing state court judges. 

-2-



These cases are precedent-setting because there is  
nothing in the Voting Rights Act or its legislative  
history that refers to -judicial elections. The 
Section 2 amendment passed in 1982 was based on prior 
cases challenging at-large legislative and county 
elections, although Congress made it clear that the 
new law was not restricted to methods of electing 
re-presentative governing bodies. In the past, the 
Supreme Court has held that judicial elections are not 
subject to the same legal standards that apply to 
representative bodies; the Fourteenth Amendment 
one-person, one-vote rule, for example, does not apply 
to judicial election districts. (Emphasis supplied). 

See the "Committee Report" Vol. 1, No. 1 Winter, 1987, Lawyers 

Committee for Civil Rights Under Law p. 5., attached. 

Plaintiffs argue that there exists a clear expression 

of Congressional intent for §2 to cover judicial elections. 

They cite as authority a single mention of "justices of the 

peace." 1 Yet in looking at the legislative history of §2 it 

is clear that Congress is silent on the issue of judicial 

coverage. 2 

Judge Learned Hand once wrote: 
When we ask what Congress "intended," 
usually there can be no answer, if what we 
mean is what any person or group of persons 
actually had in mind. Flinch as we may, 
what we do, and must do, is to project 
ourselves, as best we can, into the position 
of those who uttered the words, and to 
impute to them how they would have dealt 
with the concrete occasion. 

United States v. Klinge/, 199 F.2d 645, 648 
(1952), affirmed 345 U.S. 979, 73 S.Ct. 1129 
(1953). 

1 Plaintiffs' Memorandum in Opposition To Defendants' Motion  
to Dismiss at p.9. Plaintiffs also rely on the United States 
Amicus Curiae brief in Alexander v. N.C. Association of Black 
Lawyers (See Appendix B to Plaintiffs' Memorandum) where they 
cite as authority a single mention of "judicial districts." 
Amicus Curiae brief at p.14. 

2 See Defendants' Memorandum In Support of Motion to Dismiss  
pages 11-17. In looking at the totality of the Congressional 
record it is clear that Congress is silent on this issue. 

-3-



• 
Interpreting a statute is often spoken of as if. it 

were nothing but the search and the discovery of a meaning 

which however obscure and latent, had none the less a real and 

ascertainable pre-existence in the legislator's mind. The 

process is at times, that simple; but is often something more 

as this present case illustrates. The ascertainment of 

legislative intent when the historical records are silent as to 

the precise issue is difficult. John Gray in his lectures on 

the "Nature and Sources of the Law" wrote: 

That the difficulties of so-called 
interpretation arise when the legislature 
has had no meaning at all; when the question 
which is raised on the statute never 
occurred to it; when what judges have to do 
is, not to determine what the legislature 
did mean on a point which was present to its 
mind, but to guess what it would have 
intended on a point not present to its mind, 
if the point had been present. 3 

The United States Supreme Court recently noted in I.N.S. v.  

Cardoza Fonseca,   U.S. , 107 S.ct. 1207, 1213 (1987 

"we look to the legislative history to determine only whether 

there is 'clearly expressed legislative intention' contrary to 

that language, which would require us to question the strong 

presumption that Congress expresses its intent through the 

language it chooses," (emphasis added). See Also United States  

v. James, 478 U.S.    , 107 S.Ct. 644 (1986); 

Consumer Product Safety Com'n v. GTE Sylvania, Inc., 447 U.S. 

102, 108 (1980). 

3 John Chipman Gray, The Nature and Sources of the Law, 173 
(Mac Milian, 2nd Ed. 1921). 



In Chemical Mfrs. Ass'n. v. Natural Resources Defense 

Counsel. Inc., 470 U.S. 116, 105 S.Ct. 1102 (1985), the Court 

held that when Congress is silent on a particular issue their 

silence is an indication of their intent. 105 S.Ct. at 1108 

("another indication that Congress did not intend ... is its 

silence on the issue"). Justice Rehnquist in Albernez v.  

United States, 450 U.S. 333, 101 S.Ct; 1137 (1981) wrote: •"A 

result, if anything is to be assumed from the Congressional 

silence on this point [is that Congress is aware of the law and 

the plain meaning of the words that they use] and legislated 

with it in mind. It is not a function of this Court to presume 

that 'Congress was unaware of what it accomplished...'" 

(quoting Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 179), 

450 U.S. at 342, 101 S.Ct. at 1144. 

Therefore, when Congress used the word 

"representative" in §2 we must assume they understood that 

judges and judicial elections are not covered by such a term of 

art. With regard to the statutory scheme, this Court is bound 

to "assume that the legislative purpose is expressed by the 

ordinary meaning of the word used." See American Tobacco Co.  

v. Patterson, 456 U.S. 63, 69 (1982) (quoting Richards v.  

United States, 369 U.S. 1, 9 (1962)). 

Plaintiffs also argue that §5 of the Act has been 

applied to judicial elections; therefore, by analogy, §2 must 

also apply. Yet, as defendants pointed out in their original 

Memorandum in Support, the word "representative" has been 

conspicuously left out in §5. Where Congress includes 

-5-



particular language in one section of the same Act, it is 

generally presumed that Congress acts intentionally and 

purposely in the disparate inclusion or exclusion. See 

•Russello v. United States, 464 U.S. 16, 23 (1983) (quoting 

United States in Wong Kim Bo, 472 F.2d 720, 722, (5th Cir. 

1972)). 

Plaintiffs further argue that the Department of 

Justice, the agency that is charged to administer the Act, has 

interpreted §2 to apply to judicial elections, 4 therefore 

this court should do likewise. Plaintiffs' argument is 

erroneous for two reasons. First the Department of Justice 

(D.O.J.)• is not the agency designated by Congress to administer 

§2 of the Act. 5 

Secondly, arguendo, even if the Department of Justice 

is the proper agency, the Department of Justice's 

interpretation is not-a -permissible construction;of the--

statute. When the court reviews an agency's construction of a 

statute which that agency administers, the court is confronted 

with two questions: (1) Whether Congress has directly spoken 

on the precise question at issue; (2) if the statute is silent 

or ambiguous with respect to the particular issue, the question 

then is whether the agency's answer is based on permissible 

construction of the statute. See Chevron, _U.S.A. Inc. v.  

N.R.D.C., 467 U.S. 837, 104 S.Ct. 2778 (1984). In the present 

4 Plaintiffs' Memorandum In Opposition, at 2. 

5 The Department of Justice is not charged to administer §2 
of the Act. The Department of Justice only comes into play 
under §5 preclearance situations. 

-6-



case, the Department of Justice, like the plaintiffs, 

determined that §2 applies to the judiciary based on a single 

mention of "judicial districts" in the Congressional records. 

They cite no other authority except another district court 

decision which held that §2 applies. 6 In Southern Pac.  

Transportation Co. v. Commercial Metals Co., 456 U.S. 336, 102 

S.Ct. 1815 (1982), the Court held that "[l]legislative silence 

is not always the result of a lack of prescience; it may 

instead betoken permission or perhaps, considered abstention 

from regulation.. .Accordingly, caution must temper judicial 

creativity in face of legislative silence. " 456 U.S. at 345, 

102 S.Ct. 1821, (quoting Ford Motor Credit Co. V. Milhollin, 

444 U.S. 555, 565, 100 S.Ct. 790, 797 (1980)). 

It is clear from looking at the totality of the 

legislative history, that Congress has remained silent on this 

issue. Congress, therefore, intended sub silento and through 

the employment of the term "representative", to exclude 

- judicial elections from the coverage of §2. "Of course, if 

Congress has expressed an intent contrary to that of the 

agency, our duty [subsequently this courts duty] is to enforce 

the will of Congress." See Chevron, U.S.A. Inc. v. N.R.D.C., 

supra, n.9; S.E.C. v. Sloan, 436 U.S. 103, 117-118 (1978). 

Plaintiffs' final assertion is that since the "State 

of Louisiana has decided that the people shall choose the 

Justices[,]" the State cannot argue that §2 does not apply. 

6 Kirksey v. Allain, .supra. 

:.7_ 

' 



Plaintiffs' argument fails to realize what the Defendants have 

been asserting from the inception of this case: judges "are 

not representatives in the same sense as are legislators or 

executives. Their function is to administer the law, not to 

espouse the cause of a particular constituency." Stokes v.  

Fortson, 234 F.Supp. 575, 577 (N.D.Ga. 1964). By deciding to 

make positions on its Supreme Court elective, the State of 

Louisiana merely allowed the people to make a choice based on 

locality. As the District Court held in Buchanan v. Rhodes, 

249 F.Supp. 860 (N.D.Ohio), app. dismissed, 385 U.S. 3 (1966): 

Judges do not represent people, they serve 
people. They must therefore, be 
conveniently located to those people whom 
they serve. Location, then, is one of many 
significant factors which the legislature 
nay properly consider when carrying out its 
constitutional mandate to create effective 
judicial systems. 

Id. at 865. 

CONCLUSION  

For the foregoing reasons, defendants respectfully 

urge this Court to grant defendants' Motion to Dismiss For 

Failure to State a Claim Upon Which Relief Can Be Granted. 

Respectfully submitted, 

WILLIAM J. GUSTE, JR. 
ATTORNEY GENERAL 

KENDALL L. VICK 
ASSISTANT ATTORNEY GENERAL 

EAVELYN T. BROOKS 

•'CERTIFICATE OF SERVICE  
I certify that a copy of the foregoing pleadIng.has been 

served upon counsel for all parties by mailing the same' — • 

to each. _roily addressed atid_• postage prepaid,. 

tplis,/ay  (L3*-11- " • 1%." --f1 
„CI 
( / •  

ASSISTANT ATTOR 

ALL L. VC 
'A 4 ISTANT TORNEY GENERAL 
LO ISIAN - DEPARTMENT 0F JUSTICE 
234 OYOLA AVENUE, 7TH FLOOR 
NEW ORLEANS, LOUISIANA 70112 
TELEPHONE: (504) 568-5575 

-8-



SPECIAL ASSISTANT ATTORNEYS GENERAL: 

M. Truman Woodward, Jr., Esq. 
1100 Whitney Building 
New Orleans, Louisiana 70130 

Blake G. Arata, Esq. 
210 St. Charles Avenue 
Suite 4000 
New Orleans, Louisiana 70170 

A. R. Christovich, Esq. 
1900 American Bank Building 
New Orleans, Louisiana 70130 

Moise W. Dennery, Esq. 
21st Floor Pan American Life Center 
601 Poydras Street 
New Orleans, Louisiana 70130 



S 

COMMIT I EE 

VOL. 1, NO. 1 LAWYERS COMMITTEE FOR CIVIL RIGHTS UNDER LAW WINTER. 1987 

First Since Reconstruction 

Black Congressman 
Elected in Mississippi 

by Frank R. Parker 

Mike Espy's election this 
November in Mississippi's Second 
Congressional District to become 
Mississippi's first black member 
of Congress since Reconstruction 
symbolizes the gains made possi-
ble by the Voting Rights Act in 
eliminating the vestiges of 
political apartheid in America. 
His election also underscores 

the proposition that no law is self-
enforcing. Implementation of the 
Voting Rights Act to achieve this 
significant victory has been a 
twenty-year battle to overcome 
racial gerrymandering in congre:s-
sional redistricting in Mississippi. 
In 1966—just after the Voting 

Rights Act of 1965 was passed— 
the Mississippi Legislature re-
. drew district lines to prevent 
newly-enfranchised voters in the 
heavily black Delta area from win-
ning congressional elections. This 
discriminatory redistricting was 
repeated in 1972 and 1981 and it 
succeeded in barring Mississippi's 
black citizens—who constitute 
35% of the state's population— 
from electing any candidates of 
their choice to the U.S. House of 
Representatives: A lawsuit filed 
by the Mississippi Freedom Demo-
cratic Party challenging the orig-
inal redistricting was unsuccess-
ful: In 1967 the Supreme Court af-
firmed a District Court decision 
upholding the Legislature's plan. 

It was not until 1981 that the 
Voting Rights Project scored a 

breakthrough. We persuaded the 
Justice Department to object to 
racial gerrymandering under Sec-
tion 5 of the Voting Rights Act. 
(See p. 3 for a discussion of the 
significance of Section 5 and the 
tJustice Department's current 
stand on this crucial voting rights 
mechanism. For the moment, it is 
enough to note that Section 5 re-
quires certain states and local-
ities to produce equitable, non-
discriminatory congressional dis-
tricting plans.) 
Winning a new districting plan 

wasn't easy. It required our par-
ticipation in two lawsuits, one 
filed by the Lawyers' Committee 
in Mississippi seeking .a fair, 
court-ordered plan, and the other 
filed in Washington by Mississip-
pi (in which the Lawyers' Commit-
tee intervened) seeking to block 
judicial preclearance of the state's 
discriminatory plan. 
After an appeal to the Supreme 

Court, the District Court in Mis-
sissippi restored Mississippi's 
historic Delta district. This recon-
stituted district along the western 
side of the state is 58% black in 
population and 53% black in 
voting age. 
The goal of our litigation was 

not to secure the election of any 
particular candidate, but to fulfill 
the promise of the Voting Rights 
Act: to eliminate electoral sys-
tems that deny minority voters an 
equal opportunity to elect repre-
sentatives of their choice. 

Continued on page 4 

Docket  

IN THIS 
REPORT 

Racial Violence 
Civil rights 
activists turn 
attention to 
remedies for 
racial violence. 
  p 8 

Namibia 
Gay McDougall 
reports on 
illegal 
occupation. 

Barr Dinner 

p. 13 

Committee • 
leaders honor 
Cravath's Barr; 
Stern of Davis 
Polk. 
  p. 6 

Also: 
Supreme Court 
Update p. 10 

p. 2 



Each Issue of Committee Report will 
carry a docket of a particular group of 
cases, e.g. employment, voting rights. etc. 
prepared by the staff member responsible 
for supervising that area of litigation. The 
docket for this first issue consists of na-
tional support cases under the supervision 
of Deputy. Director Judith A. Winston. 
Cases that are treated at greater length 

, elsewhere in. this issue are marked with a 
. page number. • 

• • • • • 

1. Green v. Baker. United States District 
Court for the District of Columbia. This 
case was originally filed in 1969 as Green 
v. Kennedy. In 1977. it was reopened and 
further relief was sought to compel the In-
ternal Revenue Service to apply appropri-
ate legal and evidentiary standards so as to 
deny tax exempt status to Mississippi pri-
vate schools that discriminated on the 
basis of race. In 1980 the Lawyers' Com-
mittee obtained further relief from the D.C. 
federal district court, pursuant to which 
the IRS lifted the exemptions of several ad-
ditional Mississippi schools. The court pro-
vided for five years of annual reporting to 
LCCRUL. The reporting provision has now 
expired; however, the case remains open. 
(Judith A. Winston) 

2. Wright v. County School. Board of 
Greeneville County: United States District 

•- Court for the Eastern District of Virginia. 
Richmond Division. This is a school deseg-
regation action brought originally by the 
NAACP. The Lawyers' Committee joined 
the case in 1980 as co-counsel. We filed a 
Motion for Further Relief challenging a 
testing, tracking, and alternative curricu-
lum scheme which resulted in substantial 
segregation and unequal educational 
opportunity for black children. The case 
was settled in 1981 by an elaborate con-
sent decree which provided for five years 
of compliance reporting. The case has been 
relatively inactive except for analysis of 
the fall and spring reports. 
(Samuel Tucker. NAACP; Judith Win-

ston, LCCRUL) 

3. Vaughns v. Board of Education of 
Prince George's County, United States 
District Court for the District of Maryland. 
This matter involved reopening the Prince. 
George's .County School desegration case 
seeking further desegregation. There have 
been extensive trial proceedings and two 
appeals to the Fourth Circuit. We have pre-
vailed on all issues except those involving 
discrimination in the operation of special 
education programs and in the application 
of student discipline. During the summer 
of 1985. a settlement was negotiated with 
the . school system involving a magnet. 
,school program and educational improve-
ments at virtually all-black schools which • 
cannot be feasibly desegregated. This mat-
ter remains open on the docket. 
(Williams. Bradford. Patricia Brannan. 

and George Mernick.. HOGAN & HART-
SON) 

4. NAACP Legal Defense & Educational 
Fund. Inc. v. Horner. United States District 
Court for the District of Columbia. The 
Lawyers' Committee is plaintiff in this law-
suit. Along with five other litigating charit-
able organizations, we are seeking to con-
tinue our participation in the Combined 
Federal Campaign. The case is now before 
the district court where several discovery 
motions are pending. In September. the 
U.S. Court of Appeals for the District of 
Columbia found moot, because of an inter-
. vening legislative enactment. the Govern-
ment's appeal of a preliminary injunction 
enjoining the exclusion of the plaintiff 
organizations from the 1986 Combined 
Federal Campaign. The Court of Appeals 
remanded the case to the district court for 
further proceedings to determine whether 
the Government's effort to exclude legal 
defense and advocacy groups from CFC is 
"viewpoint discrimination." 
(Stuart Land. John Libby. and Jocelyn 

Samuels. ARNOLD & PORTER; Judith A. 
Winston, of counsel.) 

5. United States & Pittman v. Hattiesburg 
Municipal Separate School District, U.S. 
District Court for the Southern District of 
Mississippi. Jackson Division. This is a 
school desegregation case in which the 
Lawyers' Committee is representing plain-
tiff-intervenors who are parents of black 
elementary school students enrolled in the 
Hattiesburg Municipal School District. The 
school board, with the U.S. Government's 
support, adopted a magnet school plan 
which left two all-black schools untouched 
in a system with only 11 elementary 
schools. The court approved the adoption 
of the 'magnet schools plan over the objec-
tions of the .Lawyers' Committee. Our re-
quest for a stay of the plan's implementa-
tion pending appeal to the 5th Circuit was 
denied. We are still waiting for a decision 
from our appeal on the merits. Oral argu-
ment before the Fifth Circuit was held on 
April 10. 1986. 
- (Norman J. Chachkin, NAACP Legal', ' 

Defense' Fund and Judith A. Winston. 
LCCRUL. co-counsel) 

6. Britton v. South Bend Community 
School Corporation. U.S. District Court for 
the Northern District of Indiana. The major 
issue in this case is whether the South 
Bend School Corporation violated the equal 
protection clause in adopting and imple-
menting a "no-minority layoff' provision 
as part of an affirmative action plan for 
teachers. The case is now submitted to the 
7th Circuit for a rehearing en bcinc in light 
of the Supreme Court's decision in Wygant 
v. Jackson Board of Education. 
(Elliot Mincberg. Jonathan Abram. 

HOGAN & HARTSON) 

7. Jenkins v. School District of Kansas 
City, United States District Court for the 
Western District of Missouri. Western Divi-
sion. This is an interdistrict school dese-
gregation case in which the Lawyers' 
Committee is participating as arnicus. 
Plaintiffs are seeking a remedy for the 
continuing , effects of pre-Brown pur-
poseful interdistrict segregation. The 
Eighth Circuit recently ruled against the 
plaintiffs and the Lawyers' Committee as 
arnicus on the issue of how to finance the 
city's desegregation plan. 
(David J. Burman, PERKINS COIE) 

• 
8. McClesky v. Kemp, U.S. Supreme 
Court. This case challenges the constitu-
tionality of, Georgia's, capital sentencing 
statute as racially discriminatory. The 
Lawyers' Committee participated as 
arnicus. The case was argued before the 
Supreme Court on October 16, 1986. The 
Court is expected to rule in June or July. 
1987. 
(Seth P. Waxman, MILLER, CASSIDY. 

LARROCA & LEWL'q) 
See page 11. 

9. Griffith v. Kentucky. U.S. Supreme 
Court. This case involves the retroactive 
application of the principle established in 
the Supreme Court's 1985-86 term in Bat-
son v. Kentucky, holding that it is a viola-
tion of the Fourteenth Amendment and the 
equal protection clause to purposely dis-
criminate on the basis of race by exercising 
peremptory. challenges to strike all black 
jurors from a jury in the trial of a black 
defendant. The case was argued on October 
14, 1986: a decision is expected in the 
Spring. 1987. 
(Barry Sullivan. Marshall J. Schmitt, 

JENNER & BLOCK) 

10. Shaare Tefila Congregation v. Cobb 
and Saint Francis College v. Al-KhazrajL 
U.S. Supreme Court. The issue before the 
Court is whether Arabs and Jews and other 
minority group members who do not 
belong to distinct "non-white races." but 
who are victims of racially-motivated dis-
crimination are entitled to seek relief 
under various civil rights statutes. i.e., the 
Civil Rights Act of 1866. 
(Gregg ' H. Levy, Mitchell F. Dolin-; 

COVINGTON & BURLING) 
See page 9. Vi 

2 



• 

Reynolds 
Retreats 

• on Voting 
• Rights 

By Frank R. Parker 

The story of the current Justice Depart-
ment's shifts in attitude on enforcement of Sec-
tion 5 of the Voting Rights Act has all of the ele-
ments of a cliff-hanger, although some might 
characterize it as a Gothic romance of the "Had 
I but known . . ." school. 
Section 5 requires that nine states and parts 

of seven others (with a past history of voting 
discrimination) submit all voting and election 
law changes, no matter how small, to the De-
partment of Justice or the U.S. District Court 
in Washington for approval (called pre-clear-
ance). 
Since 1965, this preclearance feature has 

been critical in assuring equal voting rights in 
states that previously had engaged in discrim-
- inatory election practices. In fact, more than 
half of. the 6,400 black elected officials nation-
wide are in jurisdictions covered by Section 5. 
In 1985, the Justice Department published 

proposed new regulations which would have 
significantly weakened the government's anti-
discrimination enforcement under Section 5. 
They would have: 
• shifted the burden of proof of discrimina-

tion in cases involving alleged Section 2 viola-
tions from the state or locality to the voter; 
• created loopholes in the kinds of changes 

subject to Section 5 review; 
• limited the circumstances in which cer-

tain kinds of voting procedures might be 
reviewed; and 
• approved certain types of discrimination 

if they were not "significant." 
This attempt to undermine the enforcement 

of voting rights through Section 5 that Con-
gress had intended came as no surprise. No ad-
ministration has been more hostile to enforce-
ment of voting rights than the present one: 
• It opposed amendments which strength-

ened Section 2 of the Voting Rights Act in 1982 
by eliminating the intent requirement; for a 
year-and-a-half thereafter it failed to file any 
Section 2 enforcement suits. 
• It failed on numerous occasions to object 

to racially discriminatory reapportionment 
plans. 
• It has gone into court urging positions 

that would have undermined the implementa-
tion of Section 2 of the Voting Rights Act. 
The pecking away at Section 5 was bad 

enough. But in August. 1986, William Bradford 

• 
• a splendid 

victory and 
perhaps a useful 
educational 
experience for 
Mr. Reynolds." 

William B. Reynolds 

Reynolds. speaking at the American Political 
Science Association in Washington, announced 
a giant leap backward. He said that the Justice 
Department would no longer raise Section 5 ob-
jections to voting law changes that had a 
discriminatory result, as defined in Section 2. 
Any change which had a discriminatory result 
would be automatically precleared unless there 
was evidence of discriminatory intent (which is 
all but impossible to prove and is not the stan-
dard required by the Voting Rights Act Amend-
ments of 1982) or a retrogression in minority 
voting strength. 
Then. said Mr. Reynolds, if the Department 

does preclear voting changes that turn out to 
violate Section 2, the Department would file a 
lawsuit to challenge the change in court! Since 
the purpose of Section 5 is to block discrimina-
tory new voting law changes without the need 
•of going to court, and since Mr. Reynolds would 
be handing his courtroom adversaries the gift 
of the government's blessing for discrimina-
tory voting rights changes, one could not help 
but entertain some doubts as to Mr. Reynolds' 
commitment to securing voting rights for all. 
The Voting Rights Project played a leading 

role in organizing opposition to this bizarre 
view of voting nghts enforcement, and the 
public outcry was joined by the bi-partisan ob-
jections of leading legislators to Mr. Reynolds' 
scheme. 
As a result of these protests, Mr. Reynolds 

was forced to back off. In the final regulations 
published on January 6, 1987. the Justice 
Department incorporated the "results" stan-
dard of Section 2 to trigger the preclearance 
mechanism of Section 5 and the requirement of 
proof of discrimination by "clear and convinc-
ing evidence" was deleted. 
This is a splendid victory and perhaps a use-

ful educational experience for Mr. Reynolds. 
But having said all that, we must add that the 

new regulations leave a lot to be desired. 
Among other things, the covered jurisdictions 
are relieved of the burden of proving that a 
voting law change is not discriminatory; a new 
section appears to require proof of discrimina-
tory purpose in certain categories of voting law 
changes. The regulations continue the loophole 
by which court-ordered changes on an interim 
basis may avoid preclearance. Since the "in-
terim" could be the four-year period between 
some elections, this is a very large loophole 
indeed. F.Z 

3 



• • 

Espy's Election in Mississippi 
Demonstrates Gains in Voting Rights 

Continued from page 1 
This goal was not achieved im-

mediately, however. After the new 
district was created. Robert Clark, 
a veteran black state legislator 
who enjoyed the overwhelming 
support of black voters in the new 
district, lost the 1982 and 1984 
congressional elections. The win-
ner. Webb Franklin, was a white 
candidate who was not preferred 
by black voters and who, as a 
member of Congress, voted 
a.gainst black interests. This year, 
Espy, a 32-year-old former Assis-
tant State Attorney General, was 
the candidate of the black voters 
of the district and scored an upset 
victory over Franklin with 52% of 
the vote. 

Committee Report 

The quarterly newsletter of the 
Lawyers' Committee for Civil • 
Rights Under Law. 1400 Eye 
Street, N.W.. Washington. D.C. 
20005. 
The Lawyers' Committee for 

Civil Rights Under Law is a na-
tional nonprofit. tax-ezempt -organ-
ization that enlists the services of 
members of the private bar to 
secure the civil rights of all Amer-
icans in every area of our national 
life. 

Officers 

James Robertson, Co-Chairman 
Harold R. Tyler, Jr.. Co-Chairman 
Robert F. Mullen. Secretary 
Stuart J. Land. Treasurer 
Jerome B. Libin. Counsel 

Staff Directors • 

William L. Robinson. Director 
Judith A. Winston. Deputy Director 
Florence B. Isbell. Associate Director 
Frank R. Parker, Voting Rights 
Project Director 

Gay McDougall. Southern Africa 
Project Director 

Richard T. Seymour. Employment 
Discrimination Project Director 

Cormazittee Report Editors 

Douglas B. Farquhar 
Renee R. Matalon 

Espy's election parallels that of 
John Lewis in Georgia's Fifth 
District, also a majority black 

Winning a new 

districting plan 

wasn't easy. 

district, achieved as a result of 
voting rights litigation in which 
the Lawyers' Committee partici-
pated. 

While Mike Espy's election 
proves that voting rights litiga-
tion can be used successfully to 
right historic discrimination, it 
also demonstrates that the payoff 
is not always immediate—that 
sometimes it takes time to trans-
late a right into day-to-day reality. 
Even under ideal conditions, it 
takes time for formerly disenfran-
chised voters to mobilize political-
ly so that they can capitalize on 
the creation of majority-black 
districts. 
But cOnditioris in Mississippi— 

and a lot of other places. too—are 
far from ideal. Some states and 
localities, now that they have lost 
the gerrymandering wars, are 

Continued on page 5 

About 
Frank 
Parker 

"Congratulations on Mike 
Espy's election in the Second 
Congressional District in Mis-
sissippi. It was obviously a 
historical event, and you 
were the father of the event. 
Thanks again for what you 
have done for Mississippi." 
This letter from a Jackson. 

Mississippi lawyer to Frank 
Parker, Director of the Law-
yers' Committee Voting Rights 
Project, states what every-
body in the civil rights corn-
munity knows—Frank is a 
leader in voting rights, not 

only in Mississippi and the 
South but all over the coun-
try. 
Before becoming Director of 

the Voting Rights Project. he 
was Chief Counsel in our Mis-
sissippi Office: before that he 
was an attorney with the U.S. 
Civil Rights Commission. He 
is the author of numerous 
scholarly articles on voting 
and civil rights, and was the 
co-founder and member of the 
first editorial board of the Har-
yard Civil Rights-Civil Liber-
ties Law Review in 1965. 

4 



judicial 
Elections: 
The Next 

Voting 
Rights 

Frontier 

Continued from page 4 

relying heavily on registration 
and election procedures designed 
to keep minority voters and the 
poor from voting. 
Indeed, the disgracefully low 

turnout of voters in all socio-
economic groups in this country 
is in no small part due to cumber-
some voter registration proce-
dures, although they seem to be 
especially discouragmg to the dis-
advantaged. The Voting Rights 
Project is challenging the whole 
gamut of such practices, includ-
ing dual registration; limited 
hours and inconvenient places for 
registration (especially burden-
some for those who must rely on 
public transportation and/or 
those who can only register after 
work); insufficient registrars; dif-
ficult and cumbersome registra-
tion forms; prohibitions on mail 
registration or satellite registra-
tion; as well as outright "dirty 
tricks" to intimidate potential 
voters and otherwise keep their 
votes from counting or being 
counted. 

The Voting Rights Act 
and State Judicial Elections 

In the past, almost all the litiga-
tion challenging the dilution of 
minority votes has involved repre-

Mike Espy 

sentative governmental entities— 
Congressional districts, state leg-
islative districts and county and 
city districting. During 1986, the 
Voting Rights Project broke new 
ground by filing the first chal-
lenges to discriminatory systems 
for electing state court judges. 
These cases are precedent-set-

ting because there is nothing in 
the Voting Rights Act or its legis-
lative history that refers to 
judicial elections. The Section 2 

not apply to judicial election 
districts. 
Because the Voting Rights Act 

had not previously been applied to 
judicial elections, the state of 
Mississippi had not pre-cleared its 
changes with the Justice Depart-
ment, as required by Section 5 of 
the Act. As reported in our last 
newsletter, a three-judge District 
Court enjoined all the judicial 
elections that had not been pre-
cleared, and it rejected the State's 

If the Voting Project's proposals are adopted, 

there will be at least seven judicial districts 

with black rrujority populations. 

amendment passed in 1982 was 
based on prior cases challenging 
at-large legislative and county 
elections, although Congress 
made it clear that the new law was 
not restricted to methods of elect-
ing representative governing 
bodies. In the past, the Supreme 
Court has held that judicial elec-
tions are not subject to the same 
legal standards that apply to 
representative bodies; the Four-
teenth Amendment one-person, 
one-vote rule, for example, does 

argument that the Voting Rights 
Act did not apply to judicial elec-
tions. 
Since the injunction, we have 

been working on a permanent set-
tlement. If the Voting Project's 
proposals are adopted, there will 
be at least seven judicial districts 
with black majority populations. 
a redistricting that will drastical-
ly change the composition of the 
Mississippi Judiciary which cur-
rently does not have a single black 
trial judge. !,1-

5