Brief of Respondents in Opposition

    No. 90-1032 

In The 

Supreme Court of the United States 
October Term, 1990 

UNITED STATES OF AMERICA, 

Petitioner, 
versus 

CHARLES E. ROEMER, ET AL., 

Respondents. 

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

BRIEF OF RESPONDENTS IN OPPOSITION 

ROBERT G. PUGH 
Counsel of Record 
LA Bar Roll No. 10897 
ROBERT G. PUGH, JR. 
LA Bar Roll No. 10896 
Of the Law Firm of 
PUGH, PUGH &" PUGH 
Commercial National Tower 
Suite 2100 
333 Texas Street 
Shreveport, Louisiana 
71101-5302 

(318) 227-2270 

SPECIAL 

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

W. DENNERY 
601 Poydras Street 
New Orleans, LA 70130 
(504) 586-1241 
A. R. CHRISTOVICH 
2300 Pan American Life 
Center 

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

ASSISTANT ATTORNEYS GENERAL 

W ILLIAM J. GUSTE, JR. 
Attorney General 

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

(504) 568-5575 
January 8, 1991 

CCCKLE LAW BRIEF PRINTING CO., (600) 225-6964 
OR CALL COLLECT (452) 342-2231 



QUESTION PRESENTED 

Did Congress intend the word "representatives" as 

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

42 U.S.C. § 1973, to include judges who are selected by a 
state judicial electoral process? 



11 

TABLE OF CONTENTS 
Page 

QUESTION PRESENTED   

TABLE OF CONTENTS  ii 

TABLE OF AUTHORITIES  iii 

STATEMENT  1 

ARGUMENT  1 

WI] The Experience Of The Courts With Section 5 
Would Not Be Relevant In Determining Inter-
pretation Of Section 2. 1  

CONCLUSION  6 

1 For Sections I and II please see Response in Chisom 
(90-757). 



111 

TABLE OF AUTHORITIES 

Page 

CASES: 

Brooks v. Georgia State Bd. of Elections, U.S.  , 
111 S.D. 13, 112 L.Ed.2d 243 (1990) 2, 3 

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

Chisom, et al. v. Roemer, et al., 917 F.2d 187 (5th Cir., 
1990), petition for cert. filed, 59 U.S.L.W. 3374 
(U.S. Nov. 13, 1990) (No. 90-757, October Term, 
1990) I, 2, 5, 6 

Clark, et al. v. Roemer, et al., 59 U.S.L.W. 5433 (U S. 
December 7, 1990) (No. 90-898, October Term, 
1990) 1, 2 

Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 
L.Ed.2d 662 (1974)  3 

Helvering v. City Bank Farmers Trust Co., 296 U.S. 
85, 56 S.Ct. 70, 80 L.Ed. 62 (1935)   6 

Holshouser v. Scott, 409 U.S. 807, 93 S.Ct. 43, 34 
L.Ed.2d 68 (1972)  

Holshouser v. Scott, 335 F. Supp. 928 (M.D.N.C. 
1971)  3 

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

Martin v. Haith, 477 U.S. 901, 106 S.Ct. 3268, 91 
L.Ed.2d 559 (1986) 2, 3 

New York State Association of Trial Lawyers v. Rock-
efeller, 267 F. Supp. 148 (S.D.N.Y. 1967)  3 



iv 

TABLE OF AUTHORITIES — Continued 
Page 

Perrin v. United States, 444 U.S. 37, 100 S.Ct. 311, 62 
L.Ed.2d 199 (1979)  6 

Richardson v. Ramirez, 418 U.S. 24, 94 S.Ct. 2655, 41 
L.Ed.2d 551 (1974)  3 

Tully v. Griffin, 429 U.S. 68, 97 S.Ct. 219, 50 L.Ed.2d 
227 (1976)  3 

STATUTORY PROVISIONS: 

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

Senate Report on the Voting Rights Act, S. Rep  
No. 1992, 97th Cong., 2d Sess. (1982)  4, 5 



STATEMENT 

Since substantially all of the arguments as made by 

the United States of America in its Petition for a Writ of 

Certiorari to the United States Court of Appeals for the 

Fifth Circuit have been heretofore addressed by respon-

dents in their Brief of Respondents in Opposition as filed in 

the companion case to this case, Ronald Chisom, et al. V. 

Buddy Roemer, et al., 917 F.2d 187 (5th Cir. 1990), petition 
for cert. filed, 59 U.S.L.W. 3374 (U.S. Nov. 13, 1990), (No. 

90-757, October Term, 1990), rather than restate their 

argument here, respondents adopt and reiterate their 

arguments as made in their response in Chisom (90-757). 

These same arguments were advanced in the case entitled 
Clark, et al. v. Roemer, et al., petition for cert. filed, 59 

U.S.L.W. 5433, (U.S. December 7, 1990) (No. 90-898, Octo-
ber Term, 1990), along with an additional argument as set 
forth in a section entitled: 

I. G. The "Dichotomy" between Sections 2 
and 5 of the Voting Rights Act 

ARGUMENT 

Petitioner has suggested that: 

[T]he Fifth Circuit's decisions in this case and 
LLILAC create an anomaly in the application of 
Sections 2 and 5 of the Voting Rights Act. 

Petition at page 12. This assertion follows petitioner's 

earlier statement 

[I]n addition the Attorney General is responsible 
under Section 5 for reviewing voting changes, 
and must withhold preclearance if he concludes 
such action "is necessary to prevent a clear vio-
lation of amended section 2." 28 C.F.R. 

1 



2 

51.55(b)(2). A decision that Section 2's dilution 
standard does not apply to judicial elections 
thus affects the manner in which the govern-
ment review proposed voting changes in judicial 
election procedures under Section 5. 

Petition at pages 9-10. 

In addition to respondents' adoption of their argu-

ments as made in Chisom (90-757) and Clark (90-898), 

respondents herein add a section to be entitled: 

[III]. The Experience Of The Courts With Sec-
tion 5 Would Not Be Relevant In Deter-
mining Interpretation Of Section 2.2 

The petitioner notes that in Martin v. Haiti', 477 U.S. 

901, 106 S.Ct. 3268, 91 L.Ed.al 559 (1986) and in Brooks v. 

Georgia State Bd. of Elections, U.S.  , 111 S.Ct. 13, 112 

L.Ed.2d 243 (1990), this Court summarily affirmed a dis-

trict court decision that Section 5 of the Voting Rights Act 

applies to the state judiciaries. That section, however, 

does not use the crucial limiting term "representatives," a 

term with a plain meaning long construed by this Court. 

Indeed, this Court has recognized a distinction between 
the judiciary and other branches of the government in 

summarily affirming a decision that the "one man, one 

vote" principle does not apply to the judiciary. Holshouser 

v. Scott, 409 U.S. 807, 93 S.Ct. 43, 34 L.a1.2d 68 (1972). The 

district court decision in Holshouser noted the difference 

between election of the judiciary and "election of the 

representatives of the people — officials who make laws, 

levy and collect taxes, and generally manage and govern 

people." Holshouser v. Scott, 335 F.Supp. 928, 930 

2 For Sections I and II please see the Response in Chisom, 
90-757. 



3 

(M.D.N.C. 1971). Judges, on the other hand, "do not 

govern nor represent people nor espouse the cause of a 

particular constituency." Id. at 932; accord, New York State 

Association of Trial Lawyers v. Rockefeller, 267 F.Supp. 148 

(S.D.N.Y. 1967); Buchanan v. Rhodes, 249 F.Supp. 860 (N.D. 

Ohio), appeal dismissed, 385 U.S. 3, 87 S.Ct. 33, 17 L.Ed.2d 

3 (1966). 

In reality, neither the summary affirmance in Martin, 
Brooks nor in Holshouser govern the issue presented in this 
case. Even if either constituted an instructive precedent, 
such a summary affirmance is "not of the same preceden-

tial value as would be an opinion of the court treating the 

question on the merits." Edelman v. Jordan, 415 U.S. 651, 
671, 94 S.Ct. 1347, 39 L.Ed.2d 662, 677 (1974); accord, Tully 

v. Griffin, 429 U.S. 68, 74, 97 S.Ct. 219, 50 L.Ed.2d 227, 233 

(1976); Richardson v. Ranzirez, 418 U.S. 24, 83 n.27, 94 S.Ct. 
2655, 41 L.Ed.2d 551, 587 n.27 (1974) (Marshall, Douglas, 

& Brennan, J., dissenting). 

Section 2 of the Voting Rights Act, as amended, cre-

ated a "results" test while the unamended Section 5 of the 
Voting Rights Act has always applied an "effects" test. 

The two sections serve entirely different purposes. Sec-

tion 5 has a limited applicability — only to specific tar-

geted states where voting statutory changes may not 
occur without Justice Department approval [pre-

clearance]. Section 2, however, applies to the voting stat-

utes of all states as written and applied before and after 

the 1982 amendment. A Section 2 violation must be estab-

lished through a full judicial evidentiary hearing, in 

which the plaintiff carries the burden of proof. A Section 
5 determination is made initially administratively, mostly 

through correspondence. If the Section 5 change is found 

objectionable, then the finding is subject to judicial 



4 

review in the United States District Court for the District 
of Columbia, with the state bearing the burden of proof. 

In commenting on the comparison of the "results" 

test [Section 2] with the "effects" test [Section 5], the 
Senate Report on the Voting Rights Act, S. Rep. No. 1992, 
97th Cong. 2d Sess. (1982) stated: 

The confusion introduced by the results test is 
illustrated somewhat by the near-total disagree-
ment as far as one of the most basic questions 
involved in the analysis: does the "results" test 
proposed in section 2 mean the same things as 
the "effects" test in section 5? Despite the funda-
mental importance of this matter, there has been 
disagreement among witness after witness on 
this. 

Id. at 31. 

During the course of both the House and Senate 
hearings on the Voting Rights Act, approx-
imately half of the witnesses who discussed this 
issue claimed that the results test in section 2 
was similar or identical to the effects test in 
section 5, and hence that the judicial history of 
interpretation under section 5 was relevant; the 
other half argued that it meant something sub-
stantially or totally dissimilar. 

Id. at 32. 

Interestingly, Julius L. Chambers, one of the counsel 

for the petitioners in Chisom [90-757], testified concerning 

the difference between Section 2 and Section 5: 

Question: What is the relationship 
between the results test in section 2 and the 
effects test in section 5? 

Chambers: They are not the same test ... 



5 

Question: In other words, the experience 
of the courts with section 5 would not be rele-
vant in determining how section 2 is likely to be 
interpreted? 

Chambers: That is correct. 

Id. at 31-32. 

Similarly, Professor Archibald Cox observed: 

If you mean the effects test as interpreted by 
the courts with regard to section 5, I think that is 
considerably different from the results test in 
section 2. 

Id. at 32. 

Forewarned by these differing opinions from con-

gressional witnesses as to the applicability of the Section 

2 "results" test, the Fifth Circuit turned to the plain 

meaning of the word "representatives" as used in the 

statute. Latin American Citizens Council #4434 v. Clements, 

914 F.2d 620, 628-629 (5th Cir. 1990) (en banc). Section 5 

does not use the term "representatives." Indeed, the term 

"representatives" appears nowhere in the Voting Rights 

Act except in Section 2(b). If Congress had intended 

"representatives" to mean "elected officials" (which 

would have included judges) it could easily have said so. 

Using the term "representatives" demonstrates Congress 

meant something other than all elected officials. "A fun-

damental canon of statutory construction is that, unless 

otherwise defined, words will be interpreted as taking 

their ordinary, contemporary, common meaning. [cita-

tions omitted]" Perrin v. United States, 444 U.S. 37, 42, 100 

S.Ct. 311, 62 L.Ed.2d 199, 204 (1979). As this Court has 

counseled, "we are not at liberty to construe language so 

plain as to need no construction, [fn. citations omitted] or 



6 

to refer to committee reports where there can be no doubt 

of the meaning of the words used [fn. citations omitted]. 

Helvering v. City Bank Farmers Trust Co., 296 U.S. 85, 89, 56 

S.Ct. 80, 80 L.Ed. 62, 66 (1935). 

•  

CONCLUSION 

For the reasons set forth herein, and those as set forth in 

the Chisom Brief of Respondents in Opposition, [90-757], this 

Court should deny the Petition for Certiorari. 

All of the above and foregoing is thus respectfully 
submitted. 

ROBERT G. PUGH 
Counsel of Record 
LA Bar Roll No. 10897 
ROBERT G. PUGI-I, JR. 
LA Bar Roll No. 10896 
Of the Law Firm of 
PUGH, PUGH Sz PUGH 
Commercial National Tower 
Suite 2100 
333 Texas Street 
Shreveport, Louisiana 
71101-5302 

(318) 227-2270 

M. TRUMAN W OODWARD, JR. 
909 Poydras Street 
Suite 2300 
New Orleans, LA 70130 
(504) 569-7100 
M OISE W. DENNERY 
601 Poydras Street 
New Orleans, LA 70130 
(504) 586-1241 
A. R. GHRISTOVICH 
2300 Pan American Life 
Center 

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

SPECIAL ASSISTANT ATTORNEYS GENERAL 

W ILLIAM J. GUSTE, JR. 
Attorney General 

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

(504) 568-5575 
January 8, 1991 



2311 Douglas Street 

Omaha, Nebraska 68102 

FAX Number: 402-342-4850 

•   

CXKLE PRINTING @. 
Law Brief Specialists 

Since 1923 

1-800-225-6964 

or 

Call Collect (402) 342-2831 

I, Linda Chloupek, of lawful age, being duly -sworn, upon my oath state that I did, on the 9 day 
of January 1991 , place in the U.S. Post Office in Omaha, NE 22 package(s) containing 
3 printed copies of BRIEF OF RESPONDENTS IN OPPOSITION 

in the following case: 
No  90-1032 

UNITED STATES OF AMERICA, Petitioner,  

versus 

CHARLES E. ROEMER, ET AL., Respondents.  

that the proper first class postage was affixed to said envelope(s) and that they were plainly addressed to the following: 

SEE ATTACHED LIST FOR SERVICE  

Affiant 

Subscribed and sworn to before me this 9 day of January 1991. 
I am duly authorized under the laws of the State of Nebraska to administer oaths. 

.5LGENEIVI NOTARY-State of Mask/ PATRICIA C. BILLOTTE 
My Comm. Exp. Nov. 24, 1992 

To be filed for: 

Notary Public 

Robert G. Pugh - Counsel of Record 
LA Bar Roll No. 10897 
Robert G. Pugh, Jr. 
LA Bar Roll No. 10896 
Of the Law Firm of 
PUGH, PUGH & PUGH 
Commercial National Tower 
Suite 2100 
333 Texas Street 
Shreveport, Louisiana 71101-5302 
(318) 227-2270 



Counsel of Record for_RetitiOner in this matter entitled United 
States 9f America V. Charles E._ Roemer. et al., No. 99719_32,  
October Term. laps. 

Kenneth W. Starr 
Solicitor General 

John R. Dunne 
Assistant Attorney General 

John G. Roberts, Jr. 
Deputy Solicitor General 

Roger Clegg 
Deputy Assistant Attorney General 

Paul J. Larkin, Jr. 
Assistant to the Solicitor General 

Jessica Dunsay Silver 
Mark L. Gross 

Attorneys 
U. S. Department of Justice 
Room 5614 
Office of Solicitor General 
10th & Constitution Avenue, N.W. 
Washington, D.C. 20530, 
(202) 514-2217 

Counsgl cg Record_for the Petitioners in the matter entitled Chisom 
v. Roemer, 90-757. October Term, 1990.  

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

Julius L. Chambers 
Charles Stephen Ralston 
Dayna L. Cunningham 
Sherrilyn F. If ill 
99 Hudson Street 
16th Floor 
New York, New York 10013 
(212) 219-1900 

Rod Rodney 
643 Magazine Street 
New Orleans, Louisiana 71939 
(504) 586-1200 

Ron Wilson 
Richards Building, Suite 310 
837 Gravier Street 
New Orleans, Louisiana 70112 
(504) 525-4361 



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

C. Lani McGuinier 
University of Pennsylvania 

School of Law 
3400 Chestnut Street 
Philadelphia, Pennsylvania 19104-6204 
(215) 898-7032 

Counsel gf_Record for the Defendant-Intervenor Pascal F. Caloaero.  
sa,..„_in_thftjalat_ter entitleaChisom V. Roemer. 90-757. October Term.  
1990.  

George M. Strickler, Jr. 
LeBlanc, Strickler, Woolhandler 
1419 Richards Building 
New Orleans, Louisiana 70112 

Moon Landrieu 
4301 S. Prieur Street 
New Orleans, Louisiana 70125 

Counsel of Reco_rd for the Defendant-Intervenor, Honorable Walter F.  
Marcuq t in _the_ matter entitled Chisom V. Roexner . 90-757,  
October Term. 1990.  

Peter J. Butler 
Sessions, Fishman, Boisfontaine, 

Nathan, Winn, Butler, Barkley 
Suite 3500 
201 St. Charles Avenue 
New Orleans, Louisiana 70170 

Counsel of Record_for the Petitioners_ln_the matter entitled ClarX 
mt_Boemer, 90-8984 October Term, 1990.  

Barbara R. Arnwine 
Frank R. Parker 
Robert B. McDuff 
Brenda Wright 
Lawyers' Committee for 

Civil Rights Under Law 
1400 Eye Street, N.W., #400 
Washington, D.C. 20005 
(202) 371-1212 



Ernest L. Johnson 
T. Richardson Bobb 
Johnson, Taylor & Thomas 
5700 Florida Boulevard 
Republic Tower, Suite 209 
Baton Rouge, LA 70806 
(504) 929-7676 

Ulysses Gene Thibodeaux 
1925 Enterprise Boulevard 
Lake Charles, LA 70601 
(318) 439-1060 

Counsel of_Reco,rd for the New Orleans Louis A. Martinet Society, _an 
Dagxygning_juglintds_in_thg_tria.t_b_e_l_o_w,__c_oncerning thp  
patter gntit,le4  Clark v. Roemerj po-8982  October Term, 1990. 

Yvonne L. Hughes 
Anthony W. Skidmore 

305 Baronne Building, Suite 800 
New Orleans, Louisiana 70112 
(504)561-5831 

George A. Blair, III 
601 South Telemachus 
New Orleans, Louisiana 70119 
(504)484-7722 

§ounzel ofcord for Orleans Trial  Judges Association. an 
Intervening Defendant in the trial court below, concerning the 
matter entitigd  Clark v. Roemer, 90-898, October Term. 199_1. 

Fred J. Cassibry 
Ernest N. Morial 
Robert D. Hoffman, Jr. 
Brook, Plorial, Cassibry, Fraiche & Pizza 

400 Poydras Street, Suite 2500 
New Orleans, Louisiana 70130 
(504) 566-0542 



270AnSel of Record for Petitioners, Houston Lawyers' Association. in 
the matter entitled Houston Lawyers' Association V. Mattox.   
October IrImm. 1990. 

Julius LeVonne Chambers 
Charles Stephen Ralston 
Sherrilyn A. Ifill 

99 Hudson Street 
Sixteenth Floor 
New York, N.Y. 10013 
(212) 219-1900 

Gabrielle K. McDonald 
301 Congress Avenue 
Suite 2050 
Austin, Texas 78701 
(512) 320-5055 

gounsel_s)f Record for Responde t. Judge Sharolvn V7000 iD the 
patter entitled Housto  
2.912129.X-Igma,_222A. 

J. Eugene Clements 
Evelyn V. Keyes 
Porter & Clements , 

3500 NCNB Center 
700 Louisiana Street 
Houston, Texas 77002-2730 
(713) 226-0600 

Michael J. Wood 
440 Louisiana, Suite 200 
Houston, Texas 77002 
(713) 228-5101 

Counsel_of Recor for Petitioner in the mat t_e_g_sltitaggUeas 
United Latin AraeriCan Citizens, Inc. v. Mattox, No, 2.(27794 j October 
Term. 3.990. 

Rolando Rios 
Southwest Voter Registration 
& Education Project 

201 N. St. Mary's, Suite 521 
San Antonio, Texas 78205 
(512) 222-2102 



g_otivaLgLEegsuzgLfm Mattox,  et al., in the 
latttriltilig.4 Frouatqa_Lawyersf Association V. Mattox, 99-813,  
Qgtober Term, l9.90. and for State.nts, Jim Mattpx. et al..  
in the matter caltitiO_LUAIS.LStILJalitSUL atm LIAIMULLOULSILLLItna4. 
jnc. V. Mattox, Np, 90-794, October Term. 1990. 

Jim Mattox 
Attorney General of Texas 

Mary F. Keller 
Renea Hicks 
Javier Guajardo 
Office of the Attorney General of Texas 
P. 0. Box 12548 
Capitol Station 
Austin, Texas 78711-2548