This action was instituted by the plaintiffs under Sections 2 et seq. and 5 of the Voting Rights Act of 1965 (Act), 42 U.S.C. §§ 1973 et seq. and 1973c.
This matter is now before the Court to consider plaintiffs' motion to enjoin the election for any judgeship which has not been precleared by the Attorney General of the United States. The defendants object to any elections being enjoined and further seek a declaration from the Court that preclearance has already been obtained for some of the positions which are now being challenged by the plaintiffs. The parties also seek modification of certain orders previously issued by the Court.
In the State of Louisiana, the judicial power is vested in a supreme court, courts of appeal, district courts, and other courts authorized by the Louisiana Constitution.
It is in this background that the three-judge Court must decide whether the judicial elections in the State of Louisiana may proceed and whether those persons elected may take the oath of office. This Court acknowledges the seriousness of the task before it. The State of Louisiana must have judges to preside over the large number of civil and criminal matters which are now pending and which will be filed in the future. The State of Louisiana must also comply with the provisions of the Voting Rights Act of 1965, which has been passed by the Congress and held constitutional by the United States Supreme Court.
II. PRIOR ACTION OF THE THREE-JUDGE COURT
A number of orders have been issued by this three-judge Court. On September 28, 1990, the Court issued an order allowing elections to proceed in those judgeships which had not been precleared by the Justice Department, but enjoined the winning candidates from taking the oath of office pending further orders of the Court.
On October 5, 1990, the Court issued an oral ruling which involved elections in certain court of appeal races.
1. Elections for those judgeships previously precleared by the Attorney General or which did not require preclearance under the Voting Rights Act of 1965 were to proceed as scheduled;
2. The Court determined that a number of statutes creating judicial positions in Louisiana had been precleared by the Attorney General. The Court noted that when "the Attorney General cleared statutes creating an ultimate number of judicial seats in a particular judicial district, that preclearance constituted approval of all judicial seats necessary to reach the ultimate number of judicial positions in the district."
3. After reviewing the record, the Court found certain judgeships had not been precleared by the Attorney General as required by Section 5 of the Voting Rights Act of 1965. Because the Court had previously allowed qualification for these judgeships to proceed and campaigning for these positions had already begun, the Court reissued its order which allowed the elections for these unprecleared judgeship positions to proceed on November 6 and December 8, 1990.
4. The Court enjoined the State of Louisiana from conducting an election or allowing any person to take the oath of office for judgeships created by Act 801 of the 1987 Louisiana Legislature. The Court also ordered that if this Act is precleared or otherwise approved, the state must reopen qualifications for these judicial positions.
After issuing its October 22, 1990, order, the Court still had before it a motion to intervene filed by a candidate for a judgeship
III. THE ROLE OF THE THREE-JUDGE COURT IN THIS CASE
Section 5 of the Voting Rights Act limits the jurisdiction of this three-judge Court to a determination of: "(i) whether a change was covered by § 5, (ii) if the change was covered, whether § 5's approval requirements were satisfied, and (iii) if the requirements were not satisfied, what remedy was appropriate."
A. Does Section 5 Apply In This Case?
The defendants argue that Section 5 of the Voting Rights of 1965 does not apply to judicial elections. We recognize that this Court and the United States Supreme Court have previously held that the "one-man, one-vote" principle does not apply to judicial elections.
B. Have Section 5's Approval Requirements Been Satisfied?
The State of Louisiana argues that when the Attorney General precleared subsequent additional judgeships in a particular district he thereby approved previously added, unprecleared judgeships.
In determining whether the preclearance sought by the State of Louisiana was proper within the meaning of Section 5 of the Voting Rights Act of 1965, the Court must determine whether the submission was in an "unambiguous and recordable manner" and whether the submission was "in fact evaluated" by the Attorney General.
The Court also finds that preclearance was not obtained from the Attorney General as to those judicial positions listed in Part II of the Court's October 22 order. Unlike the judicial positions which we found to have been precleared by the subsequent approval of an act increasing the number of judges in a particular district, there was no subsequent approval of the positions listed in Part II.
C. What Remedy is Appropriate for the Unprecleared Positions?
Having concluded that certain judicial positions have not been precleared as required by Section 5 of the Voting Rights Act of 1965, the Court must now determine what remedy is appropriate under the facts of this case. The Court feels it is important to review the actions the Court has taken thus far insofar as the unprecleared positions are concerned.
In its order of October 22, 1990, the Court did not enjoin the election held on
Thus, the Court, sitting as a court of equity, had to balance the "interest of state and local authorities in managing their own affairs consistent with the Constitution"
Furthermore, to completely shut down these unprecleared positions under the facts of this case would only cause additional hardships on litigants and create more problems in the criminal justice system in Louisiana.
Considering the above factors, the Court decided in its October 22 order to allow the elections for the judicial positions which had not been precleared to continue. However, the Court ordered that candidates could only "serve provisionally pending further orders of this Court."
The action taken by the three-judge Court in this case closely parallels action taken in similar cases by the United States Supreme Court and other three-judge courts.
We have concluded that it would be in the best interest of all concerned to allow the elections to proceed and to allow the newly elected judges to take office on a provisional basis while at the same time requiring the state to obtain preclearance from the Attorney General or the United States District Court for the District of Columbia. If the state obtains approval from the Attorney General, or if relief is granted by the District Court for the District of Columbia, the elections will stand. Otherwise, the court must set aside the elections. Such a procedure has been followed by the United States Supreme Court. Thus, in NAACP v. Hampton County Election Commission,
A similar holding was set forth in Berry where the Court declared that "[i]f approval is obtained, the matter will be at an end. If approval is denied, appellants are free to renew to the District Court their request for simultaneous elections of all members of the Board at the 1978 general election."
Justice Black, sitting as a Circuit Justice, refused to enjoin an election in Oden v. Brittain, stating:
Other three-judge courts have allowed incumbents to remain in office or an election to proceed contingent on the state seeking approval from the Attorney General or the District Court for the District of Columbia, including the courts in Brooks
Finally, in Georgia v. United States,
This Court has previously ordered the elections to proceed in this case. Acting pursuant to this Court's orders, the state printed ballots, opened qualifications, and set election dates as ordered by the Court. The candidates proceeded to qualify and to campaign. When the Court issued its order of October 22, 1990, the election of October 6 had already taken place, and run-offs were scheduled for the November 6 general election. Those candidates who did not participate in the October 6 election were campaigning for the November 6 election. The Court believes that "it would be inequitable" to stop the election process being conducted under the authority of an order issued by this Court. This is particularly so since the Court has provided that the winning candidates will only take office provisionally. If the State of Louisiana obtains preclearance or relief in a declaratory action filed with the District Court in the District of Columbia, "the matter will be at an end."
After this Court rendered its October 22 order, the plaintiffs' filed a "Motion For Clarification and Reconsideration of the Three-Judge Court's October 22 Order Regarding Certain Judgeships."
IV. PLAINTIFF'S MOTION FOR RECONSIDERATION AND CLARIFICATION
The plaintiffs have filed a motion seeking to have the Court reconsider its October 22 order insofar as it applies to certain judgeships set forth in Part I of the Court's order. In Part I of the order of October 22, the Court set forth those judicial positions which the Court found to have been precleared by the Attorney General. Specifically, plaintiffs ask the Court to review its decision on the following judicial positions: 10th District, Divisions A and B, and 39th District, Division A; all judgeships in the First Circuit Court of Appeal; and the
The Court has again reviewed the record and finds that its decision which held that the judicial positions set forth in Part I of its October 22 order have been precleared by the Attorney General is correct for the reasons previously cited in this opinion. We also find that the Attorney General specifically precleared the division of the 10th and 39th Judicial Districts into two separate districts when he approved judicial positions for both districts. Finally, we conclude that when the Attorney General precleared Act 3 of the 1981 Louisiana Legislature on August 26, 1981, he expressly precleared the number of judges and divisions for each of the circuits.
The Court on its own motion does find that one judicial position which the Court initially found to be unprecleared has in fact been expressly precleared by the Attorney General. This district is District 20, Division B. Exhibit D-4, which was filed in the record, clearly shows that the split of District 20 into two parishes and the creation of Division B was expressly submitted and approved by the Attorney General. Therefore, the Court hereby amends its October 22 order to delete District 20, Division B from the unprecleared list in Part II of the order. The Court orders this judicial position to be included in Part I of the October 22 order which sets forth precleared judicial positions.
Therefore, except as amended herein regarding District 20, Division B, plaintiffs' motion for clarification and reconsideration is denied.
V. PLAINTIFFS' MOTION FOR STAY AND INJUNCTION PENDING APPEAL
The final motion before the Court is plaintiffs' motion for a stay and injunction pending appeal. We deny this motion. The Court believes that, considering the facts of this case, it has issued appropriate orders in the exercise of its equitable jurisdiction in accordance with precedent and authority of the United States Supreme Court and other three-judge courts. The rights of all parties have been protected and the provisions of the Voting Rights Act of 1965 have been enforced.
Therefore, plaintiffs' motion for stay and injunction pending appeal is denied.
The Court has given very careful consideration to the arguments of all of the parties in this very difficult case. The Court believes the orders it has issued in this case are equitable under the facts of this case. At the same time, the Court must sound a very clear and direct warning to the State of Louisiana. If the State of Louisiana does not seek or otherwise obtain preclearance in accordance with the Voting Rights Act of 1965 of those judicial positions which this Court has found to be unprecleared, this Court SHALL ENFORCE its order requiring removal of judges from those unprecleared positions. While the Voting Rights Act of 1965 has been criticized and may be controversial, it is the law of this country until repealed by the Congress or found to be unconstitutional by the United States Supreme Court. As such, the Act shall be enforced by this Court.
This Court shall retain supervisory jurisdiction of this case for whatever further relief may be necessary or required.
Filed October 22, 1990
This matter is before the Court for a reconsideration of the prior orders issued
IT IS ORDERED, ADJUDGED AND DECREED that the election shall proceed as scheduled for judgeships individually precleared by the Attorney General or in which preclearance was not required because the judgeship predated the Voting Rights Act of 1965.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that in addition we have determined that when the Attorney General cleared statutes creating an ultimate number of judicial seats in a particular judicial district, that preclearance constituted approval of all judicial seats necessary to reach the ultimate number of judicial positions in that district. Therefore, we find that the following positions in judicial districts of the State of Louisiana have been precleared in this manner by the Attorney General of the United States as required by Section 5 of the Voting Rights Act of 1965:
(1) DISTRICT COURTS
JDC PARISH DIVISION1st Caddo F 4th Morehouse & Ouachita D 9th Rapides D E 10th Natchitoches A B 15th Acadia, Lafayette & Vermillion E F H I 16th Iberia, St. Martin & St. Mary D 17th Lafourche A B C D 18th Iberville, Point Coupee & West Baton Rouge C 21st Livingston, St. Helena & Tangipahoa D 23d Ascension, Assumption & St. James C 24th Jefferson H I J K 27th St. Landry C 29th St. Charles C 32d Terrebonne C 39th Red River A (2) COURTS OF APPEAL CIRCUIT DISTRICT DIVISION1st 1 All 1st 2 All 1st 3 All 2d at large at large 3d at large at large
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that any candidate who was elected in the October 6, 1990 election in these precleared judgeships shall be allowed to take the oath of office and serve the regular term of office.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the following positions in judicial districts of the State of Louisiana have not been precleared by the Attorney General of the United States as required by Section 5 of the Voting Rights Act of 1965:
(1) DISTRICT COURTS
JDC PARISH DIVISION4th Morehouse & Ouachita F G 6th East Carroll, Madison & Tensas B 14th Calcasieu E F G H 16th Iberia, St. Martin & St. Mary G 20th East Feliciana & West Feliciana B 21st Livingston, St. Helena & Tangipahoa F 22d St. Tammany & Washington G 24th Jefferson P 26th Bossier & Webster E 34th St. Bernard D 40th St. John the Baptist C (2) COURTS OF APPEAL All judgeships authorized by Act 8 of 1990 including: (a) Second Circuit Court of Appeal, District 1, Division C; (b) Second Circuit Court of Appeal, District 3, Division C.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the following course of action shall be followed for those elections which have been held and which shall be held on November 6, 1990 and December 8, 1990 for those judgeships set forth in Paragraph II which have NOT been precleared by the Attorney General of the United States as required by Section 5 of the Voting Rights Act of 1965:
(1) Those persons elected as judges shall serve provisionally pending the further orders of this Court, and vested with all the power, authority and duties accorded by law.
(2) Within ninety days of the date of this order, the State of Louisiana shall either obtain preclearance of the said judgeships from the Attorney General of the United States or shall file a suit for a declaratory judgment with the United States District Court for the District of Columbia under the provisions of 42 U.S.C. § 1973c.
(3) If the State of Louisiana files such a declaratory judgment, the incumbent judges may continue to serve in the unprecleared judgeships until one of the following events occurs:
(4) Should the event described in either subsections 3(a), (b), or (c) occur, these incumbent judges may remain in office and serve the remainder of their terms of office.
(5) Should the State of Louisiana fail to obtain a favorable declaratory judgment from the suit filed in the United States District Court for the District of Columbia, the incumbent judges in the unprecleared judgeships may remain in office for 150 days after the finality of the judgment in that case.
(6) Should the State of Louisiana fail to obtain preclearance from the Attorney General of the United States or fail to file a suit for a declaratory judgment with the United States District Court for the District of Columbia within the time period set forth in paragraph III(2) above, the incumbent judges in the unprecleared judgeships may remain in office for 150 days following the expiration of that time period.
(7) In the event any vacancy should occur in the unprecleared judgeships by reason of death, resignation or otherwise, such vacancy may be filled according to Louisiana law.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the State of Louisiana shall be enjoined from conducting an election or allowing any person to take the oath of office for the following judgeships:
DISTRICT COURT POSITIONS WHICH PREEXISTED THE VOTING RIGHTS ACT OF 1965
JDC PARISH DIVISION(S)1st Caddo A,B,C,D 2d Bienville, Claiborne, Jackson A,B 3d Lincoln, Union A 4th Morehouse, Ouachita A,B,C 5th Franklin, Richland, West Carroll A,B 6th East Carroll, Madison, Tensas A 7th Catahoula, Concordia A 8th Winn A 9th Rapides A,B 11th Desoto, Sabine A,B 12th Avoyelles A 13th Evangeline A 14th Calcasieu A,B,C,D 15th Acadia, Lafayette, Vermillion A,B,C 16th Iberia, St. Martin, St. Mary A,B,C
17th Lafourche A,B 18th Iberville, Pointe Coupee, West Baton A,B Rouge 19th East Baton Rouge A,B,C,D 20th East Feliciana West Feliciana A 21st Livingston, St. Helena, Tangipahoa A,B 22nd St. Tammany, Washington A,B 23rd Ascension, Assumption St. James A,B 24th Jefferson A,B,C,D,E 25th Plaquemines A,B 26th Bossier, Webster A,B 27th St. Landry A,B 29th St. Charles A,B 30th Vernon A 31st Jefferson Davis A * Orleans (Civil) A,B,C,D,E,F,G,H * Orleans (Criminal) A,B,C,D,E,F,G,H
351 F.Supp. at 852-53.