CHISOM v. ROEMER

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Argument of Kenneth W. Starr

Chief Justice Rehnquist: We'll hear first this morning in No. 90-757, Ronald Chisom v. Charles Roemer, consolidated with 90-1032, United States against Charles Roemer.

General Starr.

Mr. Starr: Mr. Chief Justice, and may it please the Court:

This case brings before the Court an important issue of the coverage of the Voting Rights Act.

The specific question is whether the results test of section 2 of that act applies to the election of judges.

In its en banc opinion in the LULAC case, which will be argued next, the Fifth Circuit held that judges are not covered by the results test.

The court's reasoning was that section 2(b) of that statute, added in 1982, by its terms applies to the election of representatives, and in the court's view, the elected judges are not representatives.

As a result of the opinion in LULAC, the Fifth Circuit panel in this case, which involves a challenge to the at-large election of two justices of the Louisiana Supreme Court, ordered this lawsuit dismissed.

In our view the Fifth Circuit, with all respect, is wrong.

It is wrong in light of the text of the Voting Rights Act, including its comprehensive definition of vote and voting set forth in section 14(c)(1), in light of the structure of the statute, including section 5, the preclearance provision, which all admit covers the election of judges, and in light of the elaborate history of the Voting Rights Act at the time of its original passage and the 1982 amendments.

The Fifth Circuit also, we believe, erred on what it viewed as a basic point.

That is not only are judges covered by the terms of the statute, when they are elected they are candidates for public office, and that is what the Voting Rights Act covers.

But it is also wrong as to the meaning of the term "representatives".

We think that for two reasons.

The first is that Congress provided no definition of the term "representatives".

There is no indication that Congress was using this as a term of art.

And judges who are elected are quite literally representatives within the dictionary meaning of that term.

And, as Judge Higginbotham pointed out in his concurring opinion in LULAC, judges who have been chosen by the people and are directly accountable to the people are in a very real and practical sense representatives.

And we see that in the Louisiana system.

That is the candidates for a seat on the Louisiana Supreme Court are involved fully in the political process in the very basic sense of getting themselves elected to public office.

And that's what the Voting Rights Act is all about.

It's about voting, and it's about elections.

And whatever, the very important, the lofty function, the solemn responsibility of that justice, once the justice is in office, the plain fact remains that to get into office in Louisiana the justice had to get himself elected.

Unknown Speaker: General Starr, there is some authority for the proposition that there is no one-vote one-person requirement in election for judges.

How do you think a vote dilution claim is made out in the absence of that, if applied to judges?

Mr. Starr: The line of authority, and it is clear that judges are not covered by the one-person one-vote principle, is inapplicable here.

And I think the Court can see that both in terms of the function of that body of law and what that body of law was designed to get at, and it can see it most clearly in this Court's decision in White against Regester.

Because there, in analyzing the Texas districting scheme, the Court rejected a one-person one-vote challenge, but at the same time credited and upheld an attack to the minority dilution effect in the two counties... in Dallas County and Bayer County.

The two are entirely distinct lines of authority seeking to get at different themes.

Unknown Speaker: But if the judges are representatives in the way that you have described, then ought we to rethink that line of authority and indicate that one-person one-vote does apply to all representatives?

It seems to me that, to the extent you say judges are representatives, that it may undercut the rationale of the line of authority which suggests that one-person one-vote is inapplicable.

Mr. Starr: I respectfully disagree, and we certainly are not urging that.

And I disagree for this reason.

Think of a large State with perhaps quite small predominantly rural counties.

The law is, and I think the law is sound in this respect, that a State as a matter of policy can make a determination that each county should have a judge, even if the numbers don't justify that.

So too, it may very well be that even though the numbers may not justify in terms of population the large number of judges in an urban district as opposed to a suburban district that perhaps is less litigious, nonetheless States can determine to order their on structures in ways that are responsive to the needs of the people.

That strikes us as very sensible, and this Court itself in White against Regester said those same kinds of State interests and State policies permit greater deviations in State legislative redistricting than is the case in congressional districting, which requires almost mathematical exactitude.

Unknown Speaker: Well, what is the test then in a vote dilution claim if it applies to judges?

Mr. Starr: The test in a vote dilution claim is whether there is in fact, under the totality of the circumstances as set forth in section 2(b), less of an opportunity for minority persons to participate fully in the political process and to elect candidates of their choice.

It is what Congress did in--

Unknown Speaker: Less than what, General Starr?

You said there can be less than other peoples have... than other people have.

You say that people in one county can have much greater opportunity to elect a judge than people in another county.

Less than what?

It seems to me you need a standard for dilution.

You don't know what watered beer is unless you know what beer is, right?

Mr. Starr: --Less--

Unknown Speaker: You need a standard of watering.

What is the standard for watering the election of judges?

Mr. Starr: --The standard is less than others, less than nonminority persons.

Unknown Speaker: But you have said it's okay to have less of a chance than others in other counties, right?

Mr. Starr: No, in terms of equal protection principles as embodied in one-person one-vote.

The point I am trying to make, Justice Scalia, is the line of authority with respect to vote dilution is exactly different, it is distinct.

We are talking about a statute passed by Congress.

We are not talking about a constitutional standard under the Equal Protection Clause.

Unknown Speaker: Could you give me, you know, just what the baseline is?

In those elections that are governed by one-person one-vote we know what the baseline is.

Mr. Starr: Right.

Unknown Speaker: People are supposed to have, no matter what their race, the same say.

Now you say that is not the standard here.

What is the... how do I know, then, when a person of a certain race has gotten less than what he is entitled to?

Mr. Starr: I would commend to the Court the vast body of law that the Senate report in 1982 looked to.

It said we have seen the test fashioned by this Court in White v. Regester faithfully applied in no fewer than 23 cases.

And those cases all involve a totality of the circumstances analysis which, as this Court put it in White v. Regester, is an intensely local appraisal to determine whether minorities enjoy full access.

Unknown Speaker: Did they also involve candidates who were subject to the one-person one-vote requirement?

Mr. Starr: Some did, and some rejected one-person one-vote challenges while at the same time vindicating a vote dilution challenge brought by minorities.

Unknown Speaker: Did they involve offices that were not subject to the one-person one-vote requirement?

Mr. Starr: I don't think any of those did, but some may.

I am not going to say authoritatively that none did.

A vast array of offices were involved; some of them were intensely local.

I do believe, my best recollection is one-person one-vote did apply.

Unknown Speaker: Well, don't make me go back and read all those cases.

Just tell me the test.

[Laughter]

What is the standard?

You know, what is the baseline?

Mr. Starr: The baseline is set forth in the statute, and that baseline is the totality of the circumstances.

Unknown Speaker: What does that mean?

I don't understand.

That means it depends, right?

Mr. Starr: Correct.

Unknown Speaker: I do not think that's a baseline.

Mr. Starr: That's the congressionally mandated baseline.

It is whether there is in fact a dilution of the effectiveness and the ability of minorities to participate fully in the electoral process and to elect candidates of their choice.

That is exactly what this Court said in White against Regester.

Unknown Speaker: Well, wasn't, White against Regester was based on the Equal Protection Clause, wasn't it?

Mr. Starr: That is correct.

Unknown Speaker: So it was a constitutional law case.

Mr. Starr: That is correct.

Unknown Speaker: And what happened to White against Regester in Bolden, do you think?

Mr. Starr: What happened?

Unknown Speaker: What happened to it in the Bolden case?

Mr. Starr: In the Bolden case it eventually went back, after this Court's decision in Bolden, and the challenge was rejected.

Unknown Speaker: But what happened to the White against Regester, if anything?

Mr. Starr: Oh, they broke up the districts.

Unknown Speaker: Well--

Mr. Starr: They were at-large districts and they broke them up.

Unknown Speaker: --Do you think the vote dilution part of White against Regester survived Bolden as a constitutional matter?

Mr. Starr: Oh, as a constitutional matter, perhaps it did not.

Unknown Speaker: Well--

Mr. Starr: But the point is Congress said this is the standard in section 2--

Unknown Speaker: --Well, I know, but what was the Congress' authority to pass section 2, the amendment to section 2?

Mr. Starr: --The Fourteenth and Fifteenth Amendments.

Unknown Speaker: You think it was the Fifteenth?

Could it be the Fourteenth, or what?

Mr. Starr: It could be... I think it could be both.

I think it could be both Fourteenth and Fifteenth.

Unknown Speaker: Even though Bolden said there was no such equal protection requirement in the Fourteenth Amendment?

Mr. Starr: Bolden said exactly that--

Unknown Speaker: So, but Congress has the authority to enforce the Fourteenth Amendment in a way that the Court said wasn't required?

Mr. Starr: --Correct.

Correct.

It can go farther.

Now, Congress, as least as embodied in the Senate report which this Court has described as authoritative, believed that, with all respect, the Court in City of Mobile erred.

But notwithstanding that, it respected that judgment because this Court is the final authoritative voice on the meaning of the Constitution.

Put what it did say is we have power to in fact embody that test, which not only is correct and right in our view, but also has shown to be workable.

It works.

It does not in fact create an untriable, amorphous standard.

Unknown Speaker: Does it incorporate, in your view, our holding in Thornburg and Gingles?

Mr. Starr: Does what incorporate?

Section 2?

Unknown Speaker: The totality of circumstances test that you advocate as the correct standard under the section that is here involved.

Mr. Starr: I think Thornburg against Gingles sets forth this Court's reading of what the Senate report factors pointed to.

We are not here today quarreling with Thornburg against Gingles, but--

Unknown Speaker: Do you think it should be applied to the election of judges?

Mr. Starr: --I think that the standards set forth in section 2, and as interpreted in, by this Court, should be applied to the election of judges.

Unknown Speaker: But Gingles--

--No, I asked about Thornburg and Gingles.

Should that rationale be applied across the board in interpreting whether or not a judge, or petitioner is contesting the allocation of judgeships have made out a violation under section 2?

Do you use Thornburg and Gingles?

Mr. Starr: Well, I think something very important is involved in the election of judges, and this is the State interest and its structure of the judiciary.

In this case there is no powerful State interest with respect to at-large elections.

That is to say the Louisiana Supreme Court is elected, with the exception of the first judicial district, from single-member districts.

But the Senate report, and Thornburg against Gingles noted this, did look to the Fifth Circuit's seminal decision in Zimmer against McKeithen, and there, particularly at page 1305 of that opinion, the Fifth Circuit looked to the State interest and the powerful, compelling nature of the State interest in that particular structure.

We do believe that that is a consideration, a factor to be weighed in the totality of the circumstances, as we have sought to elaborate in our amicus brief in the LULAC case.

Unknown Speaker: It just, it isn't clear to me how you think Gingles would apply in the absence of a one-person one-vote requirement.

That was the underpinning of the majority holding in that case.

Mr. Starr: It may not apply in full measure.

What I think Thornburg against Gingles was seeking to do was to take the 1982 amendments as elaborated by what the Gingles Court viewed as authoritative, the Senate report, and to analyze that report and then to say how is a case made out in the legislative, that of course was a legislative contest or a legislative districting issue and not a judicial structuring issue.

And we do think, for the very reasons that Judge Higginbotham set forth in his concurring opinion in LULAC, that different kinds of considerations are at play and should be considered.

And Thornburg had no occasion to consider those.

Unknown Speaker: General Starr, do you think that the section 2(b) requirements extend to merit selection retention elections as well?

Mr. Starr: That issue is not before us, but I think it does.

What we believe is that the statute applies, period, to any election.

Unknown Speaker: Well, how about an election on referendum measures--

Mr. Starr: We believe it applies.

Unknown Speaker: --despite the use of the word representatives?

Mr. Starr: Yes.

Unknown Speaker: It's a little hard to argue that a referendum is a representative.

Mr. Starr: Yes, it is, but I would suggest that, very briefly, that the function of 2(b) is to tell us what the 2(a) standard is all about.

2(a) is the critical prohibition in section 2, and section 2 is the heart of this statute, and section 2 speaks very broadly, no voting qualification, no prerequisite to voting, no standard practice or procedure.

And then we look again to 14(c)(1) to see what the breadth of that is, and it is universal.

In fact 14(c)(1) talks about votes for non-candidates.

We believe that this is uniformly universally applicable to all elections.

Then the way that the standard is to be applied is through a totality of the circumstances analysis.

That is what section 2(b) tells us.

But the function of 2(b) is not in fact to identify the offices that are covered.

And when Congress wants to do that it full knows well how to do it, as illustrated by section 11 of the statute which has an enumeration of specific offices to which that particular provision or prohibition applies.

I'd like to reserve, if I may, the balance of my time.

Unknown Speaker: Very well, General Starr.

Ms. Karlan, we'll hear now from you.

Argument of Pamela S. Karlan

Ms Karlan: Mr. Chief Justice, and may it please the Court:

I want to turn first to the question of baselines that has been raised by Justices O'Connor, Kennedy, and Scalia, and give you three ways in which that baseline question can be answered in judicial elections even assuming that one-person one-vote doesn't apply.

The first one is concrete from this case.

We know already that the State of Louisiana is willing to have single member districts ranging in size from 410,000 to over 800,000 justices.

That is part of the stipulation with regard to the existing single-member districts.

Therefore, if plaintiffs can show that using the State's own criteria for what sorts of populations should be in districts, you can nonetheless draw a majority black district.

That would satisfy the first prong of Gingles.

We did that in this case.

The second way of doing that--

Unknown Speaker: Excuse me, but that assumes that the State is taking nothing into account except numbers, and it presumably is also taking into account geography, the nature of the political units into which these districts are drawn.

You're imposing upon the State a numerical criterion as the sole criterion.

Ms Karlan: --No, that's not the sole criterion, of course, Justice Scalia.

Unknown Speaker: It's the sole one you're willing to judge them on.

You're saying they use 400 to 800,000 for the other justices, why can't they use it for this one.

Ms Karlan: Well, to begin with--

Unknown Speaker: And their answer might be well, we have different geographic regions and there are different--

Ms Karlan: --Well, their answer might be, Your Honor, that they don't think that representing black people on the State supreme court is as important as representing Cajuns, which is one of the reasons they have the districts that they have now.

Unknown Speaker: --That may well be, but you can make that argument about any political arrangement that they make.

That there may be a nefarious motive, but--

Ms Karlan: Well, right.

And if there were a nefarious motive for this statute it would clearly fall under the Fourteenth Amendment regardless of one-person one-vote's applicability.

You can't discriminate against black voters simply because they are not that numerous or because one-person one-vote doesn't apply.

Given that, if you ask how do we determine whether there is an alternative structure, and after all, that is what Gingles' first factor asks, is there an alternative to the existing one-person, the existing multi-member districting scheme in which black citizens or Latinos would have the potential to elect the candidate of their choice.

That is what the Court says on pages 49 through 50 of its opinion.

And I think also that that's the burden of the example at the beginning of Justice O'Connor's concurrence in the judgment.

Given that, that is one way of measuring.

The second way of measuring is to say all right, the State doesn't have to have equipopulous districting, but let's use that as an illustrative tool.

That was done in this case as well.

If the State of Louisiana were to have 7 districts with absolutely equal populations in them, it would still be possible to draw a majority black district centered on Orleans Parish and contiguous parts of Jefferson Parish, which are majority black.

That was proved at trial by the United States as plaintiff intervenor.

Unknown Speaker: --But if we had that kind of a scheme we would at least, or the court that has to, that had to draw the district or find the violation would at least have on the numerical issue a principled basis for saying yes, there can be a district of appropriate size.

If we don't have some kind of one-person one-vote scheme, what is the principled basis upon which we can weight that particular factor?

Ms Karlan: Well, to begin with in this case, as I already alluded to, the districting size that the State already has.

That's a principled basis.

If the State of Louisiana--

Unknown Speaker: Well, what if the State is not quite to cooperative, and what if the figures aren't quite that neat?

Is 10 to 1 okay?

One district has a ratio of let's say 900 to 1 judge, and the other would have a ratio of 100 to 1 judge?

Where do we draw those lines?

Ms Karlan: --Well, Justice Souter, in this case because it's a State supreme court, I would suggest that if the State of Louisiana had one district with 3 million people in it and another district with 12 people in it, that would violate the Equal Protection Clause because it would be arbitrary, regardless of whether one-person one-vote applied.

That's what this Court held in Salyer against Tulare Lake Basin Water Storage District.

It held that even when one-person one-vote principles don't apply, the State still has to comport with the Equal Protection Clause principles.

And I think that those principles allow you to use as an illustrative example... because that is all that the first prong of Gingles asked, is is there an alternative to the present system which would afford minorities an equal opportunity to participate and to elect the candidates of their choice.

If you can show that, that establishes that first prong of Gingles.

It doesn't require the State to adopt that as the remedy at all.

Indeed, one thing that may be of interest to the Court is that the districts upon which this Court rested in Gingles in finding dilution were not the districts that were ultimately adopted at the remedial phase.

Because the State had the right to come back with another set of districts, and as long as those districts fully remedied the violation, the State is free to do what it wants.

The second... the third point I wanted to make about that is that in light of the decision by this Court in Wells against Edwards, that's a summary affirmance.

I think that the dissent had the better of the argument there, but you needn't go that far in order to find that there was a mechanism for establishing dilution in this case.

The second point I wanted to address is the role of section 2(b), because I think that goes to Justice O'Connor's question about whether referenda are covered.

Section 14(c)(1), the definitional provision of the act, says that the word "vote" includes any election at which propositions are voted on, as well as candidates.

Now section 2 of the act is the only nationwide prohibition on discrimination, and my answer would be that section 2 in part (a) defines what is prohibited, and part (b) is just one illustration of how to go about proving that.

And I'd like to give a concrete example of how you might challenge a referenda.

Suppose, for example, in a county that is majority black but in which blacks are segregated in certain parts of the county, you have to get a certain number of signatures to get an initiative on a ballot from each precinct in the county, and there is racial polarization and black people can't get any signatures in a white area.

You might be able to challenge that referenda provision for signatures and petitions under the Results Clause because it dilutes the strength there of a black majority.

So it's not just election of representatives that is covered by the act.

Even if this Court were to hold that the word representatives doesn't include judges, it would still have to grapple with 2(a), which says no voting rights standard practice or procedure, and that includes ones in which no candidate is chosen at all.

Finally with regard to the question of merit selection, yes, the Voting Rights Act would apply to merit selections as well because, for example, if the State set up its districts so that no matter what blacks did, whether they voted to retain a judge or to throw him out, they were always outvoted in that retention election by a white block vote, then the structure of the districts could be challenged itself.

Lastly I wanted to turn--

Unknown Speaker: So would you... you would take the position that in a State that for instance had five supreme court justices, and they were all elected Statewide, that a 2(b) claim could be made out and the State could be forced to set up a separate district for the election?

Ms Karlan: --No, Justice O'Connor.

A section 2 claim could be made out.

The State would retain the ability to come up with a number of other ways of electing that five justice court.

They could continue to elect them at large by, for example, using cumulative voting.

What that would allow, any group that was greater than 15 percent of the population, because 1 over 6 is the threshold of exclusion there--

Unknown Speaker: How is that different from proportional representation?

Ms Karlan: --It's not proportional representation for two reasons, Justice Kennedy.

The first is that it says nothing about who actually serves on the court.

We don't claim in our case, and I don't think any petitioners have claimed, that it's a right to have a black person sitting on the bench.

Unknown Speaker: Well, what is the object of your cumulative voting exercise?

Ms Karlan: To give black citizens in Louisiana a say on who sits on the supreme court, the same as--

Unknown Speaker: And how do you measure that say?

Do you measure it by their success in electing candidates?

Ms Karlan: --Candidates of their choice.

Now this Court has made clear it's not necessarily--

Unknown Speaker: Well, candidates of their choice.

Isn't that proportional representation?

Ms Karlan: --No, it's not proportional--

Unknown Speaker: You define proportional representation as just being a racial calculus?

Ms Karlan: --That's what the Senate sought to avoid, is the idea that you had to have a token black person on every body in order to, in order to satisfy the Voting Rights Act.

But black--

Unknown Speaker: No, I think the suggestion here is that members of the black community want to be able to identify a candidate as is theirs.

I though that was the gravamen of your cumulative voting argument.

Ms Karlan: --It is, but it's not proportional representation, Justice Kennedy.

It's a right to participate in the system equally with all other voters.

What Louisiana does today is it gives 410 whites--

Unknown Speaker: Well, but if you have an identifiable candidate, regardless of the race of that candidate, representing a racial group, I think that's proportional representation, or otherwise it's just a quibble.

Ms Karlan: --Well, I don't think it's just a quibble.

I think, you know, this Court recognized in Gingles that there is a certain tension between measuring dilution and forbidding a claim of proportional representation.

The way that plaintiffs get around that is we're not claiming a right to proportional representation.

We're claiming that the present system dilutes our ability to participate equally, because due to racial block voting, due to a history of discrimination, due to racial appeals and campaigns and the like, black citizens in Louisiana are not able to participate in the, to the same degree that white citizens are able to participate in selecting a supreme court that rules all of them.

And that's what the gravamen of the complaint is.

It's not a complaint about proportional representation.

Unknown Speaker: And you're telling me that it's irrelevant the race of the members who serve on the supreme court of the State of Louisiana in this case?

Ms Karlan: May I have leave to answer that question?

Unknown Speaker: You may answer the question, Ms. Karlan, yes.

Ms Karlan: I'm not telling you it's irrelevant.

I think it has tremendous symbolic importance and importance in respect for the law.

But if the black citizens of Orleans Parish chose to elect a white person to the supreme court, they would be satisfied and we would be satisfied that the law has worked, just as when they elected a white person from the district that was set up after Major against Treen.

Thank you.

Unknown Speaker: Thank you, Ms. Karlan.

Mr. Pugh, we'll hear now from you.

Argument of Robert G. Pugh

Mr. Pugh: Mr. Chief Justice, and may it please the Court:

At the outset I would like to bring something in focus as to what is before you as distinguished from what isn't before you.

We have talked in the last few minutes about constitutional claims.

There are no constitutional claims here today.

Those were posed below in the district court and they were abandoned in the district court.

Nothing on appeal.

There is no nefarious motion or idea or motive before you today.

The constitutional claims are not here.

What is here is that 41 States elect judges, and it's about 41 States that ultimately this decision must consider.

There has been a suggestion about a Cajun justice.

I don't know him.

We do have seven justices.

Of the seven justices, two are in fact elected from the metropolitan area of Orleans.

They have been so elected since 1879.

Every constitution in Louisiana since 1879 has provided for this same electoral arrangement.

Unknown Speaker: Mr. Pugh, is there some accepted explanation for why some of the seats on the supreme court are geographically... by geographic regions, and others are at large?

Mr. Pugh: Yes.

In this instance, back in the earlier days, the 1879 period, that was the focal point of the State, in Orleans.

And it was believed by the people who convected the constitution at that time that it would be appropriate to have two justices from that specific area, that metropolitan area.

But bringing it to date, if I may, in the 1974 constitutional, the 73 constitutional convention which resulted in the election by the people of a new constitution in 1974, every time the issue arose concerning whether or not there should be seven districts it was defeated.

It was defeated with the black votes voting primarily against such a concept.

As a matter of fact, on the--

Unknown Speaker: The proposal was to move from five geographic districts to have all seven by geographic districts?

Mr. Pugh: --Yes, sir.

The proposal--

Unknown Speaker: And that was--

Mr. Pugh: --The proposal was to have seven districts, as distinguished from having six districts--

Unknown Speaker: --Six?

Mr. Pugh: --and then a combination on the seventh.

Now in that connection it was posed at the convention why shouldn't one-man one-vote be applicable, why shouldn't we have seven districts, why shouldn't we provide in the seven districts that they should be equal in population.

Black from Orleans don't want that system.

The final vote, it was voted with one black voting against it, and that person was from the East Baton Rough Parish.

But more up to date, we have recently had that same issue posed to the people across the board of Louisiana.

Should we in effect have seven justices on the Louisiana Supreme Court each elected from a different district?

What happened to it across the board?

Orleans voted 24 percent in favor of it, bearing in mind they had 53 percent of the population at that time were black, 53.5 in fact.

24 percent voted for the proposition, 76 voted against the proposition, percentage.

Let's look at it in the four-parish area.

In the four parish area it was 24 percent against... 24 percent for, 76 percent against.

Let's look across the State.

It was 26 percent for and 74 percent against.

Unknown Speaker: What have these numbers got to do with the legal issue here?

Mr. Pugh: Well, I was trying to illustrate for the benefit of the Court that, as suggested by the Chief, why the districts, and trying to explain that that's what the people want.

I will, however, considering my time, like to move on to the rest of the argument.

Obviously we have a plain meaning question here.

Now, representatives was used, as we all know, as being a suggestion of a word rather than legislators.

No question about it.

Senator Dole, who drew the so-called compromise amendment, said if we want to use the results test from White, let's use the language from White.

And that's what occurred.

They didn't use the word "candidate", which would have embraced the judiciary.

They didn't talk about public officials, which would have embraced the judiciary.

Instead they used one word, representatives.

Obviously candidate would have been more than representative.

Candidate appears four times within the statute itself, and for reasons only they know they chose not to use that word.

Now I'd like to move, if I may, to the question of... well, obviously I want to make the point that if anybody knows what a representative is, surely Congress would know what a representative was.

Now, for 18 years preceding this act or the amendment to this act there were 15 cases, admittedly in the one-man one-vote area of the law, holding that judges were not representatives.

Not one of those cases has indicated, that I could see, in any of the reports, any of the suggestions, any of the arguments, why would Congress, a body who somebody quoted as being of lawyers, why would Congress ignore the entire one-third structure of all 50 States, except for the reason that it did not want to include judges as being representatives?

Unknown Speaker: Mr. Pugh--

Mr. Pugh: Yes.

Unknown Speaker: --Is it your position that judges are not covered by 2(b), but are covered by 2(a)?

Mr. Pugh: Yes, sir, that is my position.

And I'll tell you the reason that's my position.

First of all, we must talk about, even though this Court in Gingles did suggest, in fact it said that the results test actually took the place of the intent standard.

It said it better than I am saying it, but in effect it said intent is out the window, result comes in.

Now, it was mentioned a minute ago about referendums.

That's not the only thing.

You've got annexations, deannexations, you've got polling places, you've got a litany of issue that must fall somewhere.

Obviously, I believe everybody would concede that issues are not representatives.

They must fall somewhere.

They obviously have got to fall, then, under 2(a).

Unknown Speaker: Which requires an intent.

Mr. Pugh: That's right, Your Honor.

It requires intent.

And I say the intent standard is still there.

I believe the intent standard is applicable to the judiciary.

Now, if one wants to read it out of 2(a), it's still in the Fifteenth.

You can plead either or both.

And incidentally, despite the fact that this Court had indicated that intent was out of the window, I would suggest to you that the authoritative, everybody agrees what the Senate report said is authoritative, in one, two, three, four, five, six places in the Senate report it said you could use the intent standard or you could use the results standard under section 2.

So there is no doubt, at least I believe, intent can still be used under section 2.

Unknown Speaker: Because it makes sense, you say?

I mean, I agree it makes sense, but how do you get there from the language?

I mean, it says... what is says is that no voting qualification shall be imposed in a manner which results in a denial or abridgement as provided in subsection (b).

Mr. Pugh: That's our answer, as provided in subsection (b), which carries--

Unknown Speaker: But subsection (b) provides that it doesn't cover anything except representatives.

Mr. Pugh: --That is absolutely correct, Your Honor.

Unknown Speaker: So that leaves subsection (a) covering nothing except representatives.

Mr. Pugh: Then issues are out.

Unknown Speaker: You suddenly jump off there, right?

Mr. Pugh: Not at all.

Issues are out then.

Now, what difference then the final analysis make if judges are not under the intent standard, as I contend under 2(a)?

Suppose they are not there, what difference does it make?

You can certainly still cover them under the Fifteenth Amendment, so the result is still the same.

You end up with an intent standard.

A State can't say that we're going to, I believe in the words of one of you in one of the cases, that we can't make one out of every 10.

It was Justice White.

You can't create a system of one out of every 10 or try to classify some way.

You still have the Fifteenth Amendment to contend with.

And that's what I say.

If it's not under 2(a), it can't... in my opinion at least it can't be under 2(b).

No way under any stretch of the imagination do I believe that a representative can include the judiciary.

If I am correct on that, and I believe I am, then the issue becomes are they out completely?

Congress says they're not out.

Congress says you can use an intent standard.

Now where they're going to get it from, I don't know.

But that's what this says.

Again, I reiterate--

Unknown Speaker: Mr. Pugh, can I ask you a question?

Mr. Pugh: --Yes, sir.

Unknown Speaker: In White against Regester the Court's opinion used the term legislators--

Mr. Pugh: Yes, Your Honor.

Unknown Speaker: --and then Congress substituted the word representatives.

Is the word representatives in your view somewhat broader than the term legislators?

Mr. Pugh: Yes, sir, it is.

Unknown Speaker: What is--

Mr. Pugh: Why they switched from legislators to representatives, I don't know and I doubt seriously if anybody knows except perhaps them.

Unknown Speaker: --What does it include in addition to legislators in your--

Mr. Pugh: I think it includes the executives.

Unknown Speaker: --Includes all the executives.

Any elected executive officer?

Mr. Pugh: It would be someone... well, I think it's in there for two reasons.

One, an executive can be a school board member.

And I think there's a great deal of concern about school boards and their operations insofar as Congress is concerned.

And I think what they were trying to do is not get in the trap of saying legislators and somebody throwing on an executive hat and saying it ain't me.

What they wanted to do with the school boards is fully cover them, whether they were executives or legislators.

I can't tell you that that's anywhere in it, because it's not.

All I believe is that representatives is broader than legislators.

I believe it's much narrower, meanwhile, than is the word candidate, which they could have used.

Now the problem, of course, is that, as Justice O'Connor said, the touch tone, that's telephones, the actual method by which you make the determination under Gingles starts off, first threshold is nothing more than, or less than a one-man one-vote standard.

It's got to be.

You've got to create a district.

To create a district that's compact you've got to measure some undiluted district.

So you can't get to the first test unless you get by one-man one-vote.

You can't get by one-man one-vote unless this Court is prepared to do something about Wells, which incidentally was a Louisiana Supreme Court case.

That was the case where an intent was made at that time.

Unknown Speaker: You suggest that the Congress didn't use legislator and used representative in order to cover the executive branch?

Mr. Pugh: I know of no other reason there could possibly be than that.

Unknown Speaker: What... let's just take Louisiana for example.

Mr. Pugh: Yes, Your Honor.

Unknown Speaker: Let's say that section 2(a) could apply to the executive branch in Louisiana.

Mr. Pugh: Yes, sir.

Unknown Speaker: Give me an example of an office to which it would apply that isn't a one-person office, and indivisible office.

Mr. Pugh: Excuse me, school board.

Unknown Speaker: School boards?

Mr. Pugh: Yes, sir, and I think that's really what--

Unknown Speaker: Is that about it?

Mr. Pugh: --Well, that's one of them.

That's one that comes to mind.

Obviously if you have just an individual that falls in the executive classification, a parish commission would be another one.

Unknown Speaker: And you think... and school boards would qualify as representatives?

Mr. Pugh: Yes, sir, I would, because I think they have that dual function.

Unknown Speaker: And they, school boards are sometimes, they are mostly elected at large, aren't they, or not?

Mr. Pugh: Yes, they are primarily elected at large.

But they certainly have more than an executive function.

They certainly have more than a legislative function.

They wear both hats, as does, as I indicated, a parish commission.

Unknown Speaker: Well, I guess it's... the Court has been reasonably clear that section 2(a) applies to judges, Mr. Pugh?

Mr. Pugh: Section--

Unknown Speaker: 2(a).

Mr. Pugh: --I believe it applies to judges.

The Senate indicates that you can still use an intent standard.

I don't know of anywhere else to put it than 2(a), because you sure can't put it in 2(b).

Unknown Speaker: Well, of course 2(a) itself was amended, as Justice Scalia noted in his question to you, to include the word results and to refer specifically to 2(b).

Mr. Pugh: It trickles down to 2(b).

2(b) is where the test appears.

The test to be applied is in 2(b).

That's admitted by the Justice Department, at least in the brief that they filed in the Clark case, which you are about to hear around 1 o'clock.

They have admitted that the results test is 2(b).

Unknown Speaker: Well, if 2(a) applies and it refers in 2(a) to the word results, and it incorporates whatever the standard is in 2(b), you have to put a tremendous amount of freight on the word representatives to say somehow you can't look at the totality of the circumstances when it comes to judicial election.

Mr. Pugh: Well, I put no more freight on it than what Congress apparently did, because that's all they said.

They said, of course, as provided in subsection (b) of this section, which is the last provision in 2(a), and was not a provision... of course, it came up from the House.

The House's provision was entirely different than what we currently have with section 2(a) and 2(b).

Unknown Speaker: Mr. Pugh, what about... what 2(b) says is that its members have less opportunity than other members of the electorate not just to elect representatives of their choice, but to participate in the political process and to elect representatives of their choice.

Mr. Pugh: That's a conjunction, Your Honor.

Unknown Speaker: It is indeed.

Might judges--

[Laughter]

Mr. Pugh: I'm not being playful, or I shouldn't be in any event.

I just say that is a conjunction.

Unknown Speaker: Right.

Might judges be covered by the first and not by the second?

Mr. Pugh: Not when the conjunction is there, Your Honor.

Unknown Speaker: Well, they're entitled to both.

Mr. Pugh: Well, they are not representatives.

Unknown Speaker: They are entitled to both.

If they are denied either one there is a violation.

Mr. Pugh: Well, let's put it under the intent standard then rather than the results standard, because the results standard says specifically that it's related to representatives of their choice.

It doesn't say judges of their choice.

It doesn't say issues of their choice.

It says representatives of their choice.

Unknown Speaker: What does participate in the political process in 2(b) mean, do you think?

Mr. Pugh: To vote.

Unknown Speaker: It's clear to elect representatives of their choice does get you into the dilution issue.

Mr. Pugh: Yes, Your Honor.

Unknown Speaker: What about participating in the political process?

Does that--

Mr. Pugh: That's to vote.

Unknown Speaker: --To vote?

Mr. Pugh: To vote and elect representatives of your choice.

I still think with the conjunction that it's talking about both things.

It's talking about voting for and elect representatives of your choice.

Unknown Speaker: Do the justices in Louisiana represent anybody?

Mr. Pugh: Do they represent anybody?

Unknown Speaker: Yeah.

Mr. Pugh: Well, not in the sense that the word representation is used here.

No, sir.

Unknown Speaker: Oh, you mean represent means something one place, and something else another place, and something else a third place?

Mr. Pugh: Well, I can only suggest--

Unknown Speaker: Or do we use the common phrase?

If the people in this county vote for a judge, doesn't that judge feel that he represents them?

Mr. Pugh: --He may well feel that he--

Unknown Speaker: Well, doesn't he in fact represent them?

Mr. Pugh: --He is elected by those people to serve on the court on their behalf.

If that--

Unknown Speaker: And don't you think that requires one-person one-vote?

Mr. Pugh: --Well, I can only say--

Unknown Speaker: Well, I notice you say one-man one-vote.

I guess you don't agree with the one-person--

Mr. Pugh: --I apologize.

I bet I got a dozen votes there that says for goodness sake, if you don't do anything else, use the word person instead of... and I'm sorry.

I can't read very well, but they're over there.

I got that message put to me.

Unfortunately it didn't stay with me.

[Laughter]

I'd like to address another issue, if I may, and that's the issue of not only are we dealing with plain meaning, one of the definitions of representatives of course being an agent.

And obviously an executive and a legislator are the agent of the electorate for the purpose of carrying out their wishes.

Sometimes they don't always do it, but they are supposed to do it in any event.

If they don't do it they're not going to get reelected.

Now, another important factor, I think, that plays on this case is the question of this tremendous movement, 41 States that elect judges and not one word said about judges in all of this with the single exception of what was used as judicial districts, and we believe we have resolved that at least by reflecting that more than judges, other than judges get elected from judicial districts.

It is true that in some of the preparation of the materials that were submitted to Congress had the success of blacks in judicial races and that thing, but there's no mention when it comes to the concrete evidence of Senate reports about that.

If there was to be a total change for the first time in the history of this country to provide that the third branch of government was to be thrust into this voting rights quagmire, it's pretty obvious that somebody would have said something.

Unknown Speaker: --Mr. Pugh--

Mr. Pugh: Yes, Your Honor.

Unknown Speaker: --You don't agree, then, that before the amendments in 1982 judges were covered by the act?

Mr. Pugh: Yes, sir, they were, because it was intent.

And again I think that the intent standard of the original section 2 covered judges.

But--

Unknown Speaker: So judges were covered under the applicable standard of the act before the 1982 amendment?

Mr. Pugh: --Yes, sir.

Unknown Speaker: Well then it wasn't such a dramatic change, as you say, to say that they would continue to be covered after the 1982 amendments.

Mr. Pugh: Well, I think it's a dramatic change in that they are definitively covered for the purpose of this brand new results test.

Unknown Speaker: But so is everybody else brand new covered for the purpose of that results test.

Mr. Pugh: Representatives are, Your Honor.

There's no doubt about that.

That's what Congress said.

My suggestion is that if they intended judges to be covered, there is other language that could and should have been used, candidate being one of them.

But obviously when you, when this Court has said that... when this Court has said, as it did in the Gingles case, that insofar as intent is concerned that is the test of section 2.

Well, it would be silly if I were to argue, when this Court says that what section, the original section 2 meant was an intent test, when I know there's an intent test in the Fifteenth Amendment to try to stand here and argue that there are two different kinds of intent tests, one statutorily which creates a different set of categories and one constitutional, constitutionally, facts that would create another standard.

So certainly I'll have to acknowledge that intent was under the original section 2.

And for that reason.

The one-person one-vote is where the dramatic change will occur.

You cannot follow the Thornburg v. Gingles case unless you apply a one-person one-vote standard.

You can't get there without it.

And right now judges have been held, by this Court twice and by 13 other courts, as not being under the one-man one-vote... and for a good reason.

Unknown Speaker: Do you think if Bolden had never been decided, and White against Regester was still hail and hearty, do you think that, do you think that this at-large election in Orleans Parish could have been attacked under the standard written about in White against Regester?

Mr. Pugh: I don't think so.

Unknown Speaker: Sir?

Mr. Pugh: Apparently I should have said yes.

[Laughter]

Unknown Speaker: I think so, too.

But... and don't you think--

Mr. Pugh: If I may be candid enough to repeat my--

Unknown Speaker: --Don't you think that Congress intended to have that test applied as a statutory matter in section 2?

Mr. Pugh: --2 or 2(b), Your Honor?

Unknown Speaker: Section 2(b).

Mr. Pugh: No, Your Honor, I do not.

I think they would have said so if they intended to.

I think it still gets back to we've got the plain meaning problem, we've got the changes of now shoving judges over into one-person one-vote.

I just... large and small of it, you're still back to the word representatives and what does it mean.

Unknown Speaker: Well, you still have to get over the notion, you have to convince us that judges aren't covered by the word representative.

Mr. Pugh: Well, I could drag out some dictionaries.

Unknown Speaker: Well--

Mr. Pugh: I don't find it... I do find cases holding that they are not representatives.

I find 15 cases that hold they are not representatives.

I find two cases in this Court that indicate that.

So if they are, they brand new are, and they are today.

They ain't been in the past, Your Honor.

It appears to me they haven't been in the past.

I just don't believe, as Judge King said when I made the same statement in the Fifth Circuit, I just don't believe that you can live with the judiciary not being a one-person one-vote standard and at the same time tie into Thornhill v. Gingles.

She said it's not an... this is an imperfect world.

Unknown Speaker: --Six of those judges in the Fifth Circuit thought that they were covered.

Mr. Pugh: Yes, they did, Your Honor.

Unknown Speaker: Seven didn't, I guess.

Mr. Pugh: That's right, Your Honor.

I'd call that close.

Fortunately I had the seven, Your Honor.

[Laughter]

It's awful close, and I can understand... I believe--

Unknown Speaker: All those six didn't read the dictionaries.

Mr. Pugh: --Well, not very well.

[Laughter]

I'm not really sure it was six, but I won't quarrel with the number.

I think it was closer than that.

As the Court well knows, one of the judges who heard the en banc had put in his papers and they had been accepted, and he didn't vote.

The remain... I think it's one in three voted with Higginbotham.

That would have been Politz, that would have been King, and that would have been Davis.

Unknown Speaker: Yes.

Mr. Pugh: And then of course we had the--

Unknown Speaker: Dissent.

Mr. Pugh: --the chief, who concurred.

And incidentally, as kind of a little bit where I got some of these issue ideas from, is I read his concurrent opinion.

Of course he, he emphatically said in his opinion that there is no way, or at least in his belief there is no way that you could consider judges as representatives.

Unknown Speaker: Yes.

Mr. Pugh: I think it's the blindfolded lady with a sword and with a scale.

That's the constituency of the judiciary.

No more, no less.

I just don't believe a judge can put on partial robes, and I think we've got to consider the fact that the role of a judge is much different than the role occupied or function occupied by either a legislator or a--

Unknown Speaker: Well, of course a State can elect their judges, I suppose, and empower the electorate to throw the judge if they don't like the way he decides cases.

Mr. Pugh: --And that's exactly what is going to happen, Your Honor, if--

Unknown Speaker: Well, that's exactly what, that's exactly what happens in Louisiana and Texas, isn't it?

Mr. Pugh: --I don't believe--

Unknown Speaker: If the electorate doesn't like how the judge operates they throw him out.

Mr. Pugh: --Well, that's what the law provides, but I guarantee you one thing, not too many of them shed the robes.

As a matter of fact, we have almost 90 percent reelection rate--

Unknown Speaker: Well, what about that 10 percent?

Mr. Pugh: --Well, they may have been doing what I would hope would never occur, that is to show favoritism to a certain group or to show stupidity in the decisions when they render them.

Of course there is a means for getting rid of them, and that means is the ballot box next time they go around.

Unknown Speaker: And you don't think that even comes close to suggesting that they are representative?

Mr. Pugh: No, Your Honor, I don't.

I think they are people who must face the public on a periodic basis, because Louisiana, unlike New Jersey and some other States where the judges are appointed for life, we don't have that.

We have them--

Unknown Speaker: Thank you, Mr. Pugh.

I think you have answered the question.

Mr. Pugh: --Yes, I have, and I apologize, Your Honor.

Excuse me, sir.

Unknown Speaker: General Starr, you have 3 minutes remaining for rebuttal.

Rebuttal of Kenneth W. Starr

Mr. Starr: Thank you, Mr. Chief Justice.

Very briefly, judges were clearly covered by section 2 prior to 1982.

There is no indication--

Unknown Speaker: Have we held that?

Mr. Starr: --No.

But it could not be clearer that they were.

This is in fact a direct meaning, plain, natural meaning case when we look at the definition.

When Congress revisited this statute in 1982 it did not modify the definitional provisions of 14(c)(1).

To Judge Gee and his colleagues that was irrelevant because it was buried deep in the statute.

That's where we'd look to where the statute was covered, what it was all about.

When we then look to the use of representatives, that word found its way into the statute, deep into the untidy legislative process, introduced by Senator Dole in the compromise when the battle was not over coverage, what offices are going to be covered.

That issue was at rest in 1965 and has remained at rest.

What was at issue is is intent required by this statute or does it suffice to prove results and effects.

Not a word in the legislative history about dropping judges suddenly.

Whoops, they're gone.

They were covered, but suddenly they're gone by virtue of the Dole compromise.

The final point that I would like to make is in response to Justice O'Connor's questions about the State supreme court.

We do in fact believe that a State may have a very powerful, indeed compelling interest in its structure of government, especially at a State supreme court level, and having each of those justices responsible to, if it chooses to elect them, and accountable to the entirety of the electorate.

And in our reading of the Senate report, in our reading of Zimmer against McKeithen, that interest can in fact and should be taken into account in the totality of the circumstances analysis.

Unknown Speaker: Well, what does that mean to say it may be taken into account in the totality of the circumstances?

Does that mean that a particular district court in Louisiana could say Louisiana can go ahead the way it is, and a particular district court in Mississippi could say no, Mississippi can't go ahead the way it is, and each one would be ultimately affirmed?

Mr. Starr: Perhaps not, because we would have to--

Unknown Speaker: Well, perhaps not but perhaps yes?

Mr. Starr: --But perhaps yes.

Because under, Mr. Chief Justice, the totality of the circumstances, I think Congress contemplated exactly that.

It looked to what happened in White against Regester, and it approved of what it saw there.

Chief Justice Rehnquist: Thank you, General Starr.

The case is submitted.

Print this transcript Transcript: 

Argument of Speaker

Mr. Speaker: The opinions of the Court in two cases will be announced by Justice Stevens.

Argument of Justice Stevens

Mr. Stevens: The two cases I have to announce are Chisom against Roemer and the League of United Latin-American Citizens Council against Clemens.

Both of the cases come to us on writ of certiorari to the United States Court of Appeals for the Fifth Circuit.

They both present the same basic question concerning the coverage of Section two of the Voting Rights Act as amended in 1982.

One of them is a challenge to the method of electing the two members of the Louisiana Supreme Court who represent the four parishes that comprise the New Orleans metropolitan area.

The other is a challenge to the method of electing trial judges in 10 counties in Texas.

In both cases in this court, the petitioners rely exclusively on Section two of the Voting Rights Act.

And in both cases, the Fifth Circuit held that their claims are outside the coverage of the statute.

The basic question presented then is whether the so-called results test that was added to the Voting Rights Act in 1982 is applicable to a claim alleging that an at large method of electing judges violates the statute, or stating the question somewhat differently whether Section 2 is amended has the same application to judicial elections that it has to the election of other public officials.

The word of history will help explain the issue.

The Fifteenth Amendment to the constitution broadly provides that the right of citizens to vote shall not be denied or abridged by any state on account of race, color, or previous condition of servitude.

Section two of the Voting Rights Act of 1965 was essentially a statutory qualification of that provision.

It unquestionably applied to all state elections, including the elections of legislators, executive officials, and judges.

In 1980, in the case of City of Mobil against Boldon, a plurality of this court concluded that neither the 15th Amendment nor Section two was violated unless the plaintiff could prove intentional discrimination.

That decision prompted congress to amend the statute in 1982 to eliminate the requirement of proof of intentional discrimination and to substitute a so-called results test under which a violation can be proved by evidence that an election practice has resulted in the denial or abridgment of the right to vote based on color or race.

Because language in the amendment describing the results test refers to the need to prove that members of the protected class have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.

The majority of the judges on the Court of Appeals for the Fifth Circuit focusing their attention on the use of the word, representatives, included that congress did not intend a new test to be applicable to judicial elections or at least to every discriminatory practice used in judicial elections.

We disagree with this reading of the statute.

We conclude that the coverage provided by the 1982 amendment is co-extensive with the coverage provided by the Act prior to 1982 and the judicial elections are embraced within that coverage.

The amendment was unquestionably intended to expand the protection of the statute and our examination of the extensive legislative history of the amendment discloses no evidence whatsoever that congress intended to exclude any category of elections whether of judges, executive officials, or legislatures from the protection afforded by that amendment.

We believe that if congress had intended to exclude any category of claims involving judicial elections from coverage under the amended Act that it would have said so explicitly.

Accordingly, we reverse the judgment of the Court of Appeals for the Fifth Circuit in both cases and remand for further proceedings.

Justice Scalia has filed a dissenting opinion in which the Chief Justice and Justice Kennedy have joined.

And Justice Kennedy has also filed a separate dissenting statement in one of the cases.