# Chisom v. Roemer

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## Dissenting Opinions

    Scalia
    Kennedy
United States Supreme Court
501 U.S. 380
Chisom v. Roemer
No. Nos 90-757 and 90-1032 Argued: April 12, 1991. --- Decided: June 20, 1991
Syllabus
The Louisiana Supreme Court consists of seven members, two of whom are elected at-large from one multimember district, with the remainder elected from single-member districts. Petitioners in No. 90-757 represent a class of black registered voters in Orleans Parish, which is the largest of the four parishes in the multimember district and contains about half of the district's registered voters. Although more than one-half of Orleans Parish's registered voters are black, over three-fourths of the voters in the other three parishes are white. Petitioners filed an action in the District Court against respondents, the Governor and state officials, alleging that the method of electing justices from their district impermissibly dilutes minority voting strength in violation of, inter alia, § 2 of the Voting Rights Act of 1965. As amended in 1982, § 2(a) prohibits the imposition of a voting qualification or prerequisite or standard, practice, or procedure that "results in a denial or abridgement of the right . . . to vote on account of race or color," and § 2(b) states that the test for determining the legality of such a practice is whether, "based on the totality of circumstances," minority voters "have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." (Emphasis added.) The United States, petitioner in No. 90-1032, subsequently intervened to support petitioners' claims, and the District Court ultimately ruled against petitioners on the merits. However, the Court of Appeals finally remanded the case with directions to dismiss the complaint in light of its earlier en banc decision in League of United Latin American Citizens Council No. 4434 v. Clements, 914 F.2d 620 (LULAC), that judicial elections are not covered under § 2 of the Act as amended. There, the court distinguished between claims involving the opportunity to participate in the political process and claims involving the opportunity to elect representatives of minority voters' choice, holding that § 2 applied to judicial elections with respect to claims in the first category, but that because judges are not "representatives," the use of that term excludes judicial elections from claims in the second category.
Held: Judicial elections are covered by § 2 as amended. Pp. 391-404.
(a) As originally enacted, § 2 was coextensive with the Fifteenth Amendment, and it is undisputed that it applied to judicial elections. The 1982 amendment expanded § 2's protection by adopting a results test, thus eliminating the requirement that proof of discriminatory intent is necessary to prove a § 2 violation, and by adding § 2(b), which provides guidance about how to apply that test. Had Congress also intended to exclude judicial elections, it would have made its intent explicit in the statute or identified or mentioned it in the amendment's unusually extensive legislative history. Pp. 391-396.
(b) The results test is applicable to all § 2 claims. The statutory text and this Court's cases foreclose LULAC § reading of § 2. If the word "representatives" placed a limit on § 2's coverage for judicial elections, it would exclude all claims involving such elections, for the statute requires that all claims must allege an abridgement of the opportunity both to participate in the political process and to elect representatives of one's choice. Thus, rather than creating two separate and distinct rights, the statute identifies two inextricably linked elements of a plaintiff's burden of proof. See, e.g., White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314. Pp. 396-398.
(c) The word "representatives" describes the winners of representative, popular elections, including elected judges. Although LULAC correctly noted that judges need not be elected, when they are, it seems both reasonable and realistic to characterize the winners as representatives of the districts in which they reside and run. The legislative history provides no support for the arguments that the term "representatives" includes only legislative and executive officials or that Congress would have chosen the word "candidates" had it intended to apply the vote dilution prohibition to judicial elections. Pp. 398-401.
(d) Adopting respondents' view of coverage would lead to the anomalous result that a State covered by § 5 of the Act would be precluded from implementing a new voting procedure having discriminatory effects with respect to judicial elections, Clark v. Roemer, 500 U.S. ----, 111 S.Ct. 2096, --- L.Ed.2d ----, but a similarly discriminatory system already in place could not be challenged under § 2. Pp. 401-402.
(e) That the one-person, one-vote rule is inapplicable to judicial elections, Wells v. Edwards, 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679, does not mean that judicial elections are entirely immune from vote dilution claims. Wells rejected a constitutional claim and, thus, has no relevance to a correct interpretation of this statute, which was enacted to provide additional protection for voting rights not adequately protected by the Constitution itself. Cf. City of Rome v. United States, 446 U.S. 156, 172-183, 100 S.Ct. 1548, 1559-1565, 64 L.Ed.2d 119. Pp. 402-403.
917 F.2d 187 (C.A.5, 1990), reversed and remanded.
STEVENS, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, O'CONNOR, and SOUTER, JJ., joined. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C.J., and KENNEDY, J., joined. KENNEDY, J., filed a dissenting opinion.
Solicitor General Kenneth W. Starr, Washington, D.C., for petitioner U.S.
Pamela S. Karlan, Charlottesville, Va., for petitioners Ronald Chisom, et al.
Robert G. Pugh, Shreveport, La., for respondents.
Justice STEVENS delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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