The Leadership Conference on Civil and Human Rights

Spring 1991: Volume 5, Number 4

Civil Rights Monitor
Spring 1991

• Introduction
• Senate Judiciary Committee Rejects Judge Kenneth Ryskamp
• Supreme Court Rules in Fetal Protection Case
• Supreme Court Accepts Georgia School Desegregation Case
• Supreme Court Accepts Higher Education Desegregation Case
• Supreme Court Hears Oral Arguments in Voting Rights Cases
• My Mind on Freedom: 40 Years of LCCR

Supreme Court Hears Oral Arguments in Voting Rights Cases

On April 22, 1991, the Supreme Court heard oral arguments in several voting rights cases from Texas and Louisiana sharing the question whether the effects test in Section 2 of the Voting Rights Act, as amended in 1982, applies to the election of judges. The Voting Rights Act of 1965 was thought to cover judicial elections as well as elections for other offices. In 1980, the Supreme Court ruled that to prove voting discrimination under the Voting Rights Act, proof of racially discriminatory intent or purpose is necessary. In response, Con gress in the 1982 Voting Rights Amendments added an effects test to section 2 of the Voting Rights Act.

The relevant part of section 2 as amended in 1982 provides:

"No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the rights of any citizen of the United States to vote on account of race or color...

A violation ... is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political sub division are not equally open to participation by members of a class of citizens ... in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice..."

in amending Section 2 Congress for the first time used the term "representatives" in the Voting Rights Act. Thus, while it is clear that judicial elections would be covered if there was proof of intentional discrimination, the use of the word "representatives" raises a question about section 2, which prohibits practices that have a discriminatory effect. (For a thorough discussion of these cases, see CIVIL RIGHTS MONITOR, Fall 1990, and Winter 1991).

The Arguments

Readers should remember that questions asked by Justices during oral argument are not a reliable guide to how the Justices will vote.

The cases from Louisiana, which were consolidated for argument, are Chisom v. Roemer, No. 90-757, and U.S. v. Roemer, No. 90-1032. Solicitor General Kenneth Starr, arguing on behalf of the African American plaintiffs, said that the Fifth Circuit ruling that judges were not covered by section 2 of the Voting Rights Act because they are not representatives was wrong in light of the text of the Voting Rights Act, and its history. Starr said that while Congress provided no definition of representatives, judges are representatives because "they are elected by the people and are accountable to the people." The Voting Rights Act is about voting and about election to public office, the Solicitor General said.

Justice O'Connor asked Starr how there could be a vote dilution claim in light of the fact that the constitution al requirement of "one-person-one-vote" does not apply to judicial elections. [The Supreme Court held in 1973 in "ite v. Register that the one-person-one-vote principle did not apply to judges, thus allowing states to elect judges from jurisdictions of varying populations.] Starr acknowledged that the one-person-one-vote prin ciple was not applicable here, and went on to say that the test is whether under the totality of circumstances, minorities have less opportunity to participate fully and elect persons of their choice. Justice Scalia pressed Starr: "less than what ... you need a standard for vote dilution. What is the base line?" Starr responded that the base line is the language of the statute - the totality of circumstances.