Full opinion text
GEE, Circuit Judge: Today we must decide whether Congress, by amending Section 2 of the Voting Rights Act in 1982 to add a “results” test for dilution of minority voting strength, meant to subject the selection of state judges to the same test as that for representative political offices by incorporating language from the Supreme Court decision in White v. Regester. For reasons to be given — and for the cardinal reason that judges need not be elected at all — we conclude that it did not. In summary, these are that Congress was at great pains to phrase the new Section 2 in such language as to make clear that its results test applies to voting in elections of representatives only; that as of the amendment’s time judicial offices had never been viewed by any court as representative ones; that characterizing the functions of the judicial office as representative ones is factually false — public opinion being irrelevant to the judge’s role, and the judge’s task being, as often as not, to disregard or even to defy that opinion, rather than to represent or carry it out; that, because of the highly intrusive nature of federal regulation of the means by which states select their own officials, legislation doing so should not be pushed beyond its clear language; and that, in view of these considerations, we should place such a construction on the 1982 enactment reluctantly and only if Congress has clearly mandated such a singular result. We have carefully weighed the text and provenance of the statutory language against the opposing factors urged upon us as interpretive guides. Having done so, we conclude that the language of the 1982 amendment is clear and that it extends the Congressional non-Constitutional “results” test for vote dilution claims no further than the legislative and executive branches, leaving the underlying, Constitutional “intent” test in place as to all three. Especially telling, we conclude, is the circumstance that in borrowing language from the Court’s White opinion Congress focused upon its reference to electing “legislators,” broadening it so far, but only so far, as to electing “representatives,” a term inclusive of elective members of the executive branch as well as of the legislature but not — as, say, state officials would have been — of members of the judiciary. That Congress did exactly as we have described is as undeniable as it is inexplicable on any basis other than that of a legislative purpose to include all elected legislative and executive state officials but to exclude elected judges. Finally, and bearing in mind the well-settled principle of statutory construction that the enacting Legislator is presumed to have been aware of the judicial construction of existing law, we note that, as of the time of the addition of Section 2(b) and of the explicit results test to the Voting Rights Act, every federal court which had considered the question had concluded that state judges were not “representatives” and did not fall within the definition of that term. Had Congress, then, meant to exclude votes in judicial elections from the ambit of its new results test, it could scarcely have done so more plainly than by adopting the term “representative” to describe that ambit. Facts and Procedural History The underlying facts of this appeal are carefully and correctly set out in the panel opinion, 902 F.2d 293 (5th Cir.1990); we recapitulate them here no further than is necessary to an understanding of what we write today. Plaintiffs attacked the Texas laws providing for county-wide, at-large election of judges of the trial court of general jurisdiction, asserting that the imposition of a single-member system was necessary to prevent dilution of black and Hispanic voting strength. In a bench trial, the federal court rejected their constitutional arguments grounded in the Fourteenth and Fifteenth Amendments, finding a failure to prove the requisite discriminatory intent for relief under those provisions. The court determined, however, that the Texas law produced an unintended dilution of minority voting strength, a circumstance sufficient to call for relief under the Voting Rights Act, as amended in 1982 to incorporate a “results” test dispensing with the necessity of proof of discriminatory intent. In consequence, and after pausing to allow for possible remedial action by the state, the court enjoined further use of the at-large system, confected and imposed a system of single-member elections, and directed that these be held last Spring. On appeal, we stayed the court’s order, expedited the appeal, held a panel hearing on April 30, and handed down an opinion on May 11. Four days later, pursuant to a majority vote of active judges, we ordered rehearing of the appeal en banc; and we now render our opinion. Analysis The Panel Opinion At the time of its decision, our panel was constrained by an earlier decision of the Circuit holding that Section 2 of the Act applied to elections held to fill positions on the Louisiana Supreme Court, a seven-member body. Chisom v. Edwards, 839 F.2d 1056 (5th Cir.1988). Constraint was superfluous, however; for the panel embraced and agreed with the holding and reasoning of Chisom applying the Act to judicial elections. It went on, however, to conclude that although in its view judges were indeed “representatives of the people,” and although as their representatives the judges’ elections were controlled by Section 2(b) of the Act, the elections of trial judges were not subject to voter-strength dilution concerns because their offices are single-member ones; and there is no such thing as a “share” of. a single-member office. LULAC v. Clements, 902 F.2d 293, 305 (5th Cir.1990). See Butts v. City of New York, 779 F.2d 141 (2d Cir.1985), cert. denied, 478 U.S. 1021, 106 S.Ct. 3335, 92 L.Ed.2d 740 (1986) (offices of may- or, council president, comptroller are single-member ones) and United States v. Dallas County, Ala., 850 F.2d 1433 (11th Cir.1988) (county probate judge). A vigorous dissent by Judge Johnson, author of the panel opinion in Chisom, disputed the panel majority’s characterization of judges from multi-judge districts as holders of single-member offices. We need not resolve this disagreement within the panel, however, as we do not reach the issue. Statutory Background Originally enacted in 1965 as an anti-test, anti-device provision to relieve blacks of state-law strictures imposed upon their Fifteenth Amendment voting rights, Section 2 of the Voting Rights Act was construed by the Supreme Court in City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), as adding nothing to the Fourteenth and Fifteenth Amendment claims there made and as requiring, for its enforcement, proof of racially-discriminatory intent. At the time of Bolden, Section 2 read: No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title. Congress reacted to Bolden by amending Section 2 to add to the statute a limited “results” test, to be applied and administered “as provided in subsection (b) of this section.” As amended, Section 2 was cast in two subsections: (a) 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 right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) of this section. (b) A violation of subsection (a) of this section 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 subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section 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. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population. Earlier, in the course of deciding White, a 1973 voting rights case invoking constitutional grounds, the Court had described the required standard of proof in felicitous terms: The plaintiffs’ burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question — that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice. 412 U.S. at 766, 93 S.Ct. at 2339 (emphasis added). Casting about for appropriate language in which to couch its new subsection, and having inserted the reference to results in old Section 2, Congress settled upon the italicized portion of Justice White’s opinion quoted above, adopting it with only one significant alteration. New subsection (b), then, is patterned on the White court’s language and provides with great specificity how violations of the newly incorporated results test must be established: a violation is shown on a demonstration, by the totality of the circumstances, that state (or political subdivision) nomination and election processes for representatives of the people’s choice are not as open to minority voters as to others. The precise language of the section is significant; a violation is shown, it declares, if it is established that members of the protected classes have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. Both the broad and general opportunity to participate in the political process and the specific one to elect representatives are thus treated in the new section. As for the former, protecting it appears to involve all of the primal anti-test, anti-device concerns and prohibitions of original Section 2; and its provisions may well extend to all elections whatever, as did they. These broader considerations center on the voter and on his freedom to engage fully and freely in the political process, untrammeled by such devices as literacy tests and poll-taxes. Where judges are selected by means of the ballot, these safeguards may apply as in any other election, a matter not presented for decision today. The second consideration—opportunity to elect representatives of one’s choice—is also couched in the language borrowed from White v. Regester, 412 U.S. 755, 766, 93 S.Ct. 2332, 2339, 37 L.Ed.2d 314 (1973); and, as we have noted, the Congress was at some pains to adapt and broaden the Court’s phrases so as to convey its precise meaning. Before pursuing this aspect of our inquiry further, however, we turn aside to consider briefly the nature of the judicial office and two other closely related topics: judicial selection and the state of authority on judges’ status as representatives. The Judicial Office Senators and members of the House of Representatives hold clearly political offices. Today, both are directly elected by the people; and it is their function as representatives to synthesize the opinions of their constituents and reflect them in the debate and deliberation of public issues. The executive branch of the government, headed by our highest officer elected at large in the nation, is also expected to bring the views and opinions which he offered the electorate in seeking the Presidency to bear on the job of running the federal machinery. By contrast, the judiciary serves no representative function whatever: the judge represents no one. As Professor Eugene Hickok has recently observed, in terms upon which we cannot improve: The judiciary occupies a unique position in our system of separation of powers, and that is why the job of a judge differs in a fundamental way from that of a legislator or executive. The purpose of the judiciary is not to reflect public opinion in its deliberations or to satisfy public opinion with its decisions. Rather, it is to ensure that the ordinary laws do not run contrary to the more fundamental law of the Constitution, to resolve disputes and controversies surrounding the law, and to resolve disputes among contesting parties over the meaning of the law and the Constitution. If a member of congress serves to make the law and a president to enforce it, the judge serves to understand it and interpret it. In this process, it is quite possible for a judge to render a decision which is directly at odds with the majority sentiment of the citizens at any particular time. A judge might find, for example, a very popular law to be unconstitutional. Indeed, it can be argued that the quality most needed in a judge is the ability to withstand the pressures of public opinion in order to ensure the primacy of the rule of law over the fluctuating politics of the hour. Hickok, op. cit. supra n. 7, at 5. Thus the scholar, and with one voice the case authority of the time agreed. In 1982, as of the time of Congress’s adoption of the Court’s language from White, at least fifteen published opinions by federal courts — opinions which we list in the margin — had held or observed that the judicial office is not a representative one, most often in the context of deciding whether the one-man, one-vote rubric applied to judicial elections. Not one had held the contrary. Typical of these is the opinion in Wells v. Edwards, a decision by a three-judge district court from our own circuit which was affirmed on appeal by the Supreme Court. There, after reviewing various authorities, the district court expressed the entire rationale of its view as follows: “Judges do not represent people, they serve people.” Thus, the rationale behind the one-man, one-vote principle, which evolved out of efforts to preserve a truly representative form of government, is simply not relevant to the makeup of the judiciary.. “The State judiciary, unlike the legislature, is not the organ responsible for achieving representative government.” 347 F.Supp., at 455-56 (quoting from Buchanan v. Rhodes, 249 F.Supp. 860 and New York State Association of Trial Lawyers v. Rockefeller, 267 F.Supp. 148). It is impossible, given the single point at issue and the simple reasoning stated, to believe that the majority of the Supreme Court, in affirming Wells, did not concur in that reasoning. If there were doubt, however, it would be laid to rest by the terms of the dissent, which attacks the district court opinion in stern, egalitarian terms for having, like other opinions cited by it, held “that the one-person, one-vote principle does not apply to the judiciary.” 409 U.S. 1095, 1096 n. 2, 93 S.Ct. 904, 905 n. 2. Nor is it likely, we think, that the Supreme Court would hold, as it necessarily did in affirming Wells v. Edwards, that although for purposes of the Equal Protection Clause of the Fourteenth Amendment judges “do not represent people,” all the same, for purposes of Section 2(b) of the Voting Rights Act, judges are “representatives of [the people’s] choice.” Both must be true, or neither one. Wells is not only instructive as to the meaning of “representatives” and thus as to the scope of Section 2, it is dispositive of the precise issue of the scope of Section 2’s applicability raised in this case. The Wells holding — that the one-person, one-vote rule does not apply to the judiciary— leads inexorably to the conclusion that judicial elections cannot be attacked along lines that their processes result in unintentional dilution of the voting strength of minority members. Absent the one-person, one-vote rule — that the vote of each individual voter must be roughly equal in weight to the vote of every other individual voter, regardless of race, religion, age, sex, or even the truly subjective-and uniquely individual choice of where to reside — there is no requirement that any individual’s vote weigh equally with that of anyone else. This being so, and no such right existing, we can fashion no remedy to redress the nonexistent wrong complained of here. The notion of individual vote dilution, first developed by the Supreme Court in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), was the foundation for the concept of minority vote dilution to be later elaborated in Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d, 363 (1971), White v. Regester, supra, and Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir.1973). Individual vote dilution was remedied by the Court through the concept of one-person, one-vote — the guarantee of substantial equality among individual voters. With that guarantee in mind, remedial schemes to combat minority vote dilution were devised on a case by case basis. Almost twenty years ago, we articulated the conceptual link between individual vote dilution and minority vote dilution, making clear the latter’s dependence on the former: Inherent in the concept of fair representation are two propositions: first, that in apportionment schemes, one man’s vote should equal another man’s vote as nearly as practicable; and second, that assuming substantial equality, the scheme must not operate to minimize or cancel out the voting strength of racial elements of the voting population. Zimmer, 485 F.2d at 1303 (emphasis added). For it is the assumption of substantial equality (achieved through the guarantee of one-person, one-vote) that underlies the concept of minority vote dilution. This assumption, the Court held in Wells, does not obtain in judicial elections; and without that assumption there exists no yardstick by which to measure either the “correct” magnitude of minority voting strength or the degree of minority vote dilution. Thus, on a conceptual level, and to paraphrase Justice Harlan, we are asked to undertake the ineffable task of equalizing that which we cannot measure. Whitcomb, 403 U.S. at 169, 91 S.Ct. at 1883 (Harlan, J., separate opinion). We are therefore unable to take the crucial step from individual vote dilution to minority vote dilution in this case, not only because the holding in Wells forbids us to assume the existence of “substantial equality," but because it compels us to recognize that no such equality need exist in the arena of judicial elections. The bridge between the two concepts, fashioned by the Court in Reynolds v. Sims and applied there to state legislatures, is of limited length and, as the Court made clear by affirming Wells v. Edwards, does not extend to the judiciary. Finally, as the district court stated in Wells: The primary purpose of one-man, one-vote apportionment is to make sure that each official member of an elected body speaks for approximately the same number of constituents. Wells, 347 F.Supp. at 455. We reiterate that judges do not represent people and, thus, have no constituents. Judges speak the voice of the law. In doing so they speak for and to the entire community, never for segments of it and still less for particular individuals. To describe the judge’s office merely as “not a representative one” is a gross understatement; in truth, it is rather the precise antithesis of such an office. Just insofar as a judge does represent anyone, he is not a judge but a partisan. New Section 2(b) So the land lay when Congress enacted Section 2(b) in 1982, choosing to replace the term “legislator” in the White phraseology with the term “representative” — a term which is employed only at this spot and appears nowhere else in the entire Voting Rights Act. By the settled canon of construction, we must presume that Congress was aware of the uniform construction which had been placed by the courts on the term that it selected, a construction by which the judicial office was not deemed a “representative” one. Goodyear Atomic Cory. v. Miller, 486 U.S. 174, 108 S.Ct. 1704, 100 L.Ed.2d 158 (1988); Sutton v. United States, 819 F.2d 1289 (5th Cir.1987). Against this background, then, the Congress deliberately picked a term of art for use in amending Section 2 that up to that time had been universally held, and which it knew had been universally held by every federal court that had considered it as of that date, neither to include judges nor to comprise judicial offices. In view of these circumstances, we find it all but impossible to avoid the conclusion that Congress intended to apply its newly imposed results test to elections for representative, political offices but not to vote dilution claims in judicial contests, leaving the latter to be regulated and controlled by state law, by the Constitution, or by other provisions of the Voting Rights Act. Given the mutual exclusiveness of the two terms, to suggest that Congress chose “representatives” with the intent of including judges is roughly on a par with suggesting that the term night may, in a given circumstance, properly be read to include day. We are further persuaded by the knowledge that in amending Section 2 Congress was well aware of the genesis of the concept of minority vote dilution. The legislative history makes clear that Congress knew that “[t]he principle that the right to vote is denied or abridged by dilution of voting strength derives from the one-person, one-vote reapportionment case of Reynolds v. Sims.” S.Rep. No. 417, 97th Cong., 2d Sess., reprinted in 1982 U.S. Code Cong. & Admin.News at 177, 196. Given its awareness of the Wells v. Edwards holding — that the one-person, one-vote rule does not apply to the judiciary— we must conclude that Congress, aware of the combined effect of Reynolds and Wells, limited the scope of amended Section 2 so as to rule out the judicial branch, an area within which the issue of the viability of minority vote dilution claims had been well settled. Countervailing Arguments Thus we find on one side of the argument whether Section 2(b)’s results test for elections applies to judicial ones the Congress’s carefully chosen term of art — “representatives” — deliberately selected by Congress and placed in the section itself, with a settled legal meaning excluding judges. On the other side are ranged contentions of a more attenuated and derivative nature, which we now consider briefly. First we are told that the definition of “voting,” included in the original act as Section 14(c)(1) and now codified as 42 U.S.C. § 1973Í (c)(1), refers to “candidates for public or party office” and that, since judicial hopefuls are included within the generality of such a reference to candidates, the results test which applies to all others must be applied to them as well. The specific controls the general here, however, as in any other instance of statutory construction; and we see little force in the claim that an inference from a general term buried in a definitional section far from Section 2 should control the specific and supervening language inserted by Congress in the section itself. Nor is there any necessary conflict between the two provisions: as we have noted, it is only the application of the results test portion of amended Section 2 to vote dilution claims in judicial elections that is at issue today. Other portions of the section may well apply to such elections, as may the results test to claims other than those of vote dilution, along with the indubitably applicable Constitutional prohibitions against any intentional act of discrimination in any electoral aspect. The same answer also refutes the next argument: that because, as was held in Haith v. Martin, 618 F.Supp. 410 (E.D.N.C.1985), aff'd mem., 477 U.S. 901, 106 S.Ct. 3268, 91 L.Ed.2d 559 (1986), Section 5 of the Act applies to state judicial elections, Section 2 must apply as well. As we have explained, portions of Section 2 may well apply — except for the results test introduced in response to the holding in Bolden to govern vote dilution in the election of “representatives,” which by its own terms does not. Next we are told, in yet another general argument similar to those we have just rejected, that we must apply the dilution results test to judicial elections because the 1982 amendments to Section 2 were intended to expand, rather than to restrict, the section’s coverage. Doubtless they were generally so intended; doubtless they did so; but the presence of a general intent to expand coverage requires neither an expansion at all points nor the maximum imaginable expansion at any and is not even necessarily at odds with a specific intent to restrict coverage at one or another of them. Section 2 was greatly expanded, expanded to add a results test to the intent test of the Fourteenth and Fifteenth Amendments — expanded in most respects, but not in all. Finally, in a scatter of birdshot contentions, counsel point to the broad construction that the Attorney General has historically accorded the Voting Rights Act, to the absence in the Act’s legislative history of any explicit statement that judicial elections are not covered, to the presence in that history of references to statistics on minority performance in various elections (including judicial ones), and to a single reference to “judicial districts” in a cautionary parade of horribles to be found in a subcommittee report hostile to the proposed 1982 amendments. None of these seems to us to weigh very heavily in the scales against the specific terminology of Section 2 itself. In the words of Justice Frankfurter, writing for a unanimous court in Greenwood v. United States, it appears to us that “this is a case for applying the canon of construction of the wag who said, when the legislative history is doubtful, go to the statute.” 350 U.S. 366, 374, 76 S.Ct. 410, 415, 100 L.Ed. 412 (1956). It is, and we do so. Conclusion In no area should federal courts tread more cautiously than where it is contended that Congress has imposed incremental Federal power on the States; and the nearer to the core of traditional state authority and concern we are asked to venture, the more warily we should tread. The point is elegantly made by the panel opinion in this very case: New would quarrel with the assertion that Section 2(b) as interpreted has worked a fundamental change in the Act, highly intrusive to the states. We have insisted in other contexts that Congress clearly state its intent to supplant traditional state prerogatives. Judicial insistence upon clear statement is an important interpretative tool vindicating concern for separation of powers and federalism. See Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105 S.Ct. 3142 [87 L.Ed.2d 171] (1985); Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900 [79 L.Ed.2d 67] (1984) (Pennhurst II). This insistence upon an “unequivocal expression of congressional intent,” Pennhurst II, 465 U.S. at 99, 104 S.Ct. at 907, is based upon the fundamental nature of the interests at stake. “The ‘constitutionally mandated balance of power’ between the states and the Federal Government was adopted by the Framers to ensure the protection of ‘our fundamental liberties.’ ” Atascadero, 105 S.Ct. at 3147 (quoting Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 572, 105 S.Ct. 1005, 1028 [83 L.Ed.2d 1016] (1985) (Powell, J., dissenting)). LULAC, 902 F.2d at 301. It is hard to envision any area lying closer to the core of state concerns than the process by which it selects its own officers and functionaries. Any federal trenching here strikes at federalism’s jugular; and such a radical federal trenching as is contended for today should therefore demand a very clear statement indeed. Instead, as regards the issue in this case, our investigation reveals an all but total absence of relevant legislative history and a statutory text that unambiguously excludes elections of non-representative state officers from Section 2’s highly intrusive results test. If this was not the intended effect of Congress’s substitution of representatives for legislators in Justice White’s language, no other suggests itself; and we must reject any notion that Congress went to all the trouble of selecting that language and carefully modifying it, just so far and no further, randomly and with nothing particular in mind. It is never proper for us to extend a statute’s force by construction into areas where Congress has not seen fit or has been unable to agree to go, and never less proper than in such supremely sensitive territory as this. Judicial offices and judicial selection processes are sui generis in our nation’s political system; they determine the referees in our majoritarian political game. These offices are not “representative” ones, and their occupants are not representatives. Indeed, the state processes for filling them need not even be elective, as those for all representative offices presumably must be. See U.S. Const., Art. 4, Sec. 4. In 1982, when Congress determined to expand Section 2 of the Act to incorporate a results test for vote dilution, it stopped short of imposing such a test for judicial offices on the States by limiting it to their election of “representatives.” Should Congress seek to install such a test for judicial elections, it must say so plainly. Instead, it has thus far plainly said the contrary. Chisom v. Edwards, 839 F.2d 1056 (5th Cir.1988) is overruled. REVERSED. . 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973). . See, e.g., Shapiro v. United States, 335 U.S. 1, 16, 68 S.Ct. 1375, 1383, 92 L.Ed. 1787 (1948); United States v. PATCO, 653 F.2d 1134, 1138 (7th Cir.), cert. denied, 454 U.S. 1083, 102 S.Ct. 639, 70 L.Ed.2d 617 (1981). . It is the settled law of our Circuit that one panel of the Court does not overrule another. Ryals v. Estelle, 661 F.2d 904 (5th Cir.1981). . As we note in text, the section goes on to specify that election success of class members is a circumstance to be considered and to disavow specifically any intent to mandate proportionate representation by race. . Not all aspects of that process pertain to elections, e.g., the celebrated New England town meeting. . That scope is not at issue today, the trial court having found an absence of discriminatory intent; and we do not decide it. We point out, however, that there can be no doubt whatever that the provisions of the Fourteenth and Fifteenth Amendments, enforceable by means of Section 1983 actions, apply to judicial elections to forbid intentional discrimination in any aspect of them. City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980); Voter Information Project v. City of Baton Rouge, 612 F.2d 208 (5th Cir.1980). . James Madison, discussing the unique relationship of the representative to his constituents, for example, referred to a relationship of "intimate sympathy” between the elected and his electors, and argued that a legislator should feel an “immediate dependence" upon the will of his constituents. Frequent elections, according to Madison, are the only way to ensure this sort of relationship. Only by requiring legislators to return periodically to their constituents to seek their ongoing support and input, can the communication between the voters and their representatives that is essential to the maintenance of democratic government take place. Congress is a "popular" institution; it is, therefore inherently political. Hickok, Judicial Selection: The Political Roots of Advice and Consent in Judicial Selection: Merit, Ideology, and Politics 4 (National Legal Center for the Public Interest 1990). .That this is the case is strongly implied in the Constitution, which provides for an appointive federal judiciary and was adopted by thirteen states, none of which had an elective one. Yet the Framers believed they were confecting a federal republic, and Article 4, Section 4, of the Constitution guarantees "to every State in this Union a Republican Form of Government_” But if judges hold representative offices, or represent any constituency, appointing them is scarcely consistent with a republican system, defined by the Third Edition of Webster's Unabridged as “[A] government in which supreme power resides in a body of citizens entitled to vote and is exercised by elected officers and representatives_” . Sagan v. Commonwealth of Pennsylvania, 542 F.Supp. 880 (W.D.Pa.1982), appeal dismissed, 714 F.2d 124 (3rd Cir.1983) (cross filing permitted by candidates for judicial office, prohibited for legislative and executive candidates) Concerned Citizens of Southern Ohio, Inc. v. Pine Creek Conservancy Dist., 473 F.Supp. 334 (S.D.Ohio 1977) The Ripon Society, Inc. v. National Republican Party, 525 F.2d 567 (D.C.Cir.1975), cert. denied, 424 U.S. 933, 96 S.Ct. 1147, 1148, 47 L.Ed.2d 341 (1976) Fahey v. Darigan, 405 F.Supp. 1386 (D.C.R.I.1975) Gilday v. Board of Elections of Hamilton County, Ohio, 472 F.2d 214 (6th Cir.1972) Wells v. Edwards, 347 F.Supp. 453 (M.D.La.1972), aff’d mem., 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973) Buchanan v. Gilligan, 349 F.Supp. 569 (N.D.Ohio 1972) Holshouser v. Scott, 335 F.Supp. 928 (M.D.N.C.1971), aff'd mem., 409 U.S. 807, 93 S.Ct. 43, 34 L.Ed.2d 68 (1972) Sullivan v. Alabama State Bar, 295 F.Supp. 1216 (M.D.Ala.), aff’d per curiam, 394 U.S. 812, 89 S.Ct. 1486, 22 L.Ed.2d 749 (1969) (involving Board of Commissioners of Alabama State Bar) Irish v. Democratic-Farmer-Labor Party of Minnesota, 287 F.Supp. 794 (D.C.Minn.), aff’d, 399 F.2d 119 (8th Cir.1968) Buchanan v. Rhodes, 249 F.Supp. 860 (N.D.Ohio 1966), appeal dismissed, 385 U.S. 3, 87 S.Ct. 33, 17 L.Ed.2d 3 (1966), and vacated, 400 F.2d 882 (6th Cir.1968), cert. denied, 393 U.S. 839, 89 S.Ct. 118, 21 L.Ed.2d 110 (1968) N.Y. State Assn. of Trial Lawyers v. Rockefeller, 267 F.Supp. 148 (S.D.N.Y.1967) Kail v. Rockefeller, 275 F.Supp. 937 (E.D.N.Y.1967) Romiti v. Kerner, 256 F.Supp. 35 (N.D.Ill.1966) Stokes v. Fortson, 234 F.Supp. 575 (N.D.Ga.1964) Since 1982 a few courts have held that the use of the term “representatives” in Section 2 does not necessarily exclude judges. See Southern Christian Leadership Conference of Alabama v. Siegelman, 714 F.Supp. 511 (M.D.Ala.1989); Clark v. Edwards, 725 F.Supp. 285 (M.D.La.1988); Mallory v. Eyrich, 839 F.2d 275 (6th Cir.1988); Martin v. Allain, 658 F.Supp. 1183 (S.D.Miss.1987). (All recognizing that the "one-man, one-vote” principle does not apply to judicial elections and that, unlike legislators, judges do not “represent” those who elect them, but, nevertheless, refusing to apply its established meaning to Congress' use of the term "representatives" in Section 2 of the Voting Rights Act). . 347 F.Supp. 453 (M.D.La.1972), aff'd mem., 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973) (Justice White, joined by Justices Douglas and Marshall, dissenting). . It is interesting to note that the dissent from the panel opinion, in the very course of complaining of the majority’s refusal to apply Section 2 to trial judges, candidly recognizes that judges, unlike legislative and executive officers, "represent" no one: When weighing a state’s claim that it has a compelling interest in retaining the existing at-large system, courts should keep in mind the common sense notion that the role of judges differs from that of legislative and executive officials. Since it is not the role of judges to "represent” their constituents an examination of the "responsiveness” of the elected official to minority concerns is clearly irrelevant. 902 F.2d at 317 n. 17. . In Whitcomb v. Chavis the Supreme Court directly considered a racial dilution challenge and rejected the claim that the Indiana legislative reapportionment plan operated to minimize or cancel out minority voting strength. The Court held that the mere fact that ghetto residents were not proportionately represented did not prove a constitutional violation unless they were denied equal access to the political process. . Indeed, as the panel opinion correctly notes, many states of the Union over the course of their history have maintained an appointive judiciary, and some do so today. 902 F.2d, at 296. Given the fact, also noted there, that none of the original thirteen states elected its judiciary, an appointive system must be viewed as consistent with the "Republican Form of Government” guaranteed the States by Article 4, Section 4, of the Constitution. In view of this, and while it is certainly possible to imagine Congress's taking the position that, while states need not elect judges, if they do so they must do so on exactly the same terms as they elect representatives, the view which it adopted seems at least equally cogent: that since the office of the judge is not to represent the popular will, and since judges are not expected to initiate significant departures in law or policy, the states need not be subjected in their selection or election to so severe and intrusive a provision as one applying a "results" test to claims of minority vote dilution. . Thus, as Justice Scalia has very recently suggested, we "appl[y] to the text of the statute the standard tools of legal reasoning, instead of scouring the legislative history for some scrap that is on point_” Begier v. I.R.S., - U.S. -, -, 110 S.Ct. 2258, 2269, 110 L.Ed.2d 46, 63 (1990) (concurrence in judgment). And these small matters are indeed scourings. The panel opinion avers, 902 F.2d at 299, and we do not doubt, that the reference to "judicial districts” is the sole reference to the judiciary in all the legislative history of the 1982 amendments of the Act. It will be noted that even this reference is one to judicial districts, not to judicial candidates; and in our Circuit many officials such as sheriffs, highway commissioners, district attorneys and clerks of court, who are "representatives” and not judges, are elected from judicial districts, e.g., Miss.Code Ann. (1972) 65-1-3. . Both the dissent and, more obliquely, the special concurrence take our writing to task as resting on the narrow foundation of one word. In main, this is true; for the substitution of the term "representative" is all but the sole clue to be found—in either the statutory text or the legislative history—to guide the interpreter in unraveling the legislative intent behind this enigmatic statute. Dim or no, it is the only light available to guide our footsteps, and we have followed it as best we could. By contrast, our specially concurring and dissenting brethren proceed by ignoring the sole guide available, first declaring that the only light that shines is of no help, then proceeding in total darkness and, so proceeding, to declare that the statute means, not what it says, but what they think Congress should have said— pausing briefly in passing to accuse our majority of doing what they in fact have done themselves.
CLARK, Chief Judge, concurring specially: This brief soliloquy is necessarily said, in my respectful view, because every other opinion goes farther than the Voting Rights Act intends. My brothers Gee and Higginbotham are at odds about the way the court should take to reach the same result. While their disagreement centers on the representative nature of the judicial office, the essence of their analyses of the impact of racial vote dilution in this judicial election process based on the nature of the office is similar—so similar that, if their opinions were expressly limited to the facts of the present case, I agree with both. There is no disagreement that Section 2 of the Voting Rights Act, before its amendment, forbade any practice or procedure that abridged the right to vote because of race or color. All also agree that the legislative intent of the amendment was only to broaden the test for vote dilution from “intent” to “result.” The elements of Judge Gee’s analysis are that, since section 2(b) defines vote dilution in terms of representatives, no vote dilution claim can be made in any election of a judicial officer because a judge can never be a representative—a conclusion he finds confirmed by the Supreme Court’s refusal in Wells v. Edwards to apply one-man, one-vote standards to judicial election districts. Judge Higginbotham rejects this analysis. He would base reversal on the premise that none of several elected trial judges who all function singularly in their work can be subject to the single-member redistricting claim made here. My concern is that the court’s opinion, as now written, puts vote dilution attacks on (1) judicial elections which cannot be resolved by examining the nature of the office, and (2) “issue” elections (such as referenda on constitutional amendments and bond issue elections) beyond the reach of amended section 2. Judge Gee starts with the observation that the words of section 2 expressly limit vote dilution to elections of representatives. I can readily agree section 2 does not apply to the elections challenged here. It involves only the election of persons and voter impact turns entirely on the nature of the judicial office. This brings section 2(b) into play. The inherent nature of the judicial function and, indeed, the constitutional limits of due process require that every judge be impartial between litigants and neutral as to claims presented. In the discharge of official duties, no judge can ever “represent” the electors in the jurisdiction served by the court. A vote for a judge differs from a vote for other types of officers. Whether the choice be for councilman, sheriff or governor, and whether it be based on whim or party or nonpartisan analysis of the individual candidate, votes for these types of officials are cast for those who will best express the wishes and views of their constituents. This cannot be so when a voter picks a judge. Legislators and executives are expected to represent. Voters must know judges cannot. The same principles control when a state provides for election rather than appointment of its judiciary. The choice seeks to assure the public that the judicial function will be kept accountable to the common sense of the electorate. It is expected that candidates who lack training or a reputation for honesty or sound intellect will not be elected. In like manner, those who are indolent, will not decide cases or decide erratically will not be re-elected. Overarching any considerations of voter motivation is the due process neutrality required in the conduct of the office. It does not permit the judge’s responsiveness to the electorate’s concept of common sense to become representation of the electorate. The State of Texas has a strong interest, and, indeed, a fundamental right to choose to have these judges elected in the manner provided here. Its choice does not violate amended section 2. The difficulty I have with Judge Gee’s analysis is that it has no limit. There are many types of elections which involve issues, not candidates, which surely ought to be subject to the vote dilution stricture of section 2 despite the absence of any question of representation. But merely noting the applicability to “issue” elections would not adequately define the reach of section 2. It is imperative, in my view, that a bright circle be drawn around judicial elections as well. Judge Gee’s reasoning would expressly deny section 2(a) coverage to judicial elections in situations beyond today’s facts, as he makes clear by overruling Chisom v. Edwards. Section 2(a) is an integral part of a remedial statute. It deserves to be interpreted so as to prevent racial vote abridgment even when it occurs in a judicial election. The phrase “as provided in subsection (b) of this section” which appears at the end of subsection (a) should be read as giving an example of proscribed vote dilution. It does not provide that section 2(b) establishes the only way the section can be violated. It is clear to me that when a state continues to apply a voting procedure in a manner which now results in an abridgment of the right of a citizen to vote on account of race, that procedure is still condemned by amended section 2(a), just as it was before the amendment. Nothing we say today should be taken as passing on a claim that a judicial election process in which judges are elected by fewer than all of the eligible voters within the jurisdictional area of the court on which the judge will serve has become a violation of section 2. Such elections involve district-ing of voters in a manner entirely unrelated to the representative nature of the judge’s office. [Thornburg v.] Gingles [478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986) ] tells me that whether the political process chosen by Texas for selecting its judges is equally open depends upon evaluation of past and present reality under a functional view of the process. There is nothing wrong with the state’s choice to elect any number of a county’s district judges county-wide. However, if the state has chosen to divide a single judicial jurisdiction into separate groups of electors, that choice could, with changes in demographics or other conditions come to raise real issues of racial gerrymander, gross diminution of voting strength, candidate slating ability or other violations of equal protection which have nothing to do with the due process concerns which control the execution of judicial duties, or with the manner in which the office of judge is carried out. Of course, I agree that Wells v. Edwards establishes that approximate numeric equality of voters between judicial districts is not required. However, we need not and should not decide now that judicial subdistricts which grow to have gross numeric or racial disparities in their make-up will always be free of possible section 2 problems. For this reason, I respectfully, but expressly, disagree with the majority’s flat-out overruling of Chisom v. Edwards. We are not confronted here with any claim of vote dilution resulting from long-established subdistricts alleged to have become racially invidious on a basis of intra-jurisdictional voter distribution. This was the claim that was before this court in Chisom. The holding in Chisom reversed a dismissal on the pleadings. I agree that such a reversal was proper, even though I cannot agree with all said in Part I of Judge Higginbotham’s concurrence or Judge Johnson’s dissent because both deny vitality to section 2(b). Since we are writing en banc, I am free to disagree with the reason given for the result in Chi-som — that section 2 applies to all judicial elections. I am of the opinion that it is equally wrong to say that section 2 covers all judicial elections as it is to say it covers none. However, if today’s facts were the same as Chisom’s, I would hold a claim that judicial subdistricts, once having no invidious purpose, but alleged, over time, to have come to abridge section 2 rights, must be factually developed and cannot be dismissed on pleadings alone. If the issue were reached in today’s case, I would also agree with Judge Higginbotham that the presence of multiple judicial posts on the ballots of plaintiffs here gives them no section 2 right to have single-judge subdistricts drawn. I would do so because I am not required to agree that the principle applies on any broader scale than the facts before us present. His function-of-the-office analysis is, to me, identical in concept to the majority view. The caveat I think must be added to both is that only when the area of jurisdiction of each of several jurist to be elected is coextensive with the area of residence of those that elect them, is each vote for a judge bound to be equal to every other vote that may be cast. I would not agree with Judge Higginbotham that the single-judge, trial-court function of the judicial office is a critical factor. The analysis ought to be the same regardless of how the judge judges. When an appellate judge — who must function with other appellate judges to accomplish the judicial task — serves the same jurisdictional area as that which defines the electorate, section 2 does not allow a single member subdistricting remedy to be applied. This is so because no intrad-istrict or intrastate violation of section 2 is possible. The collegial nature of the appellate office in no way alters the compulsion for due process neutrality. When this neutrality is coupled with congruence of jurisdiction and electorate, they jointly assure equality in voting practices and procedures, negate representation and eliminate the possibility of vote dilution. However, as with my partial agreement with Judge Gee’s analysis, agreement with Judge Higginbotham should not be taken as controlling fact situations not before us here. The single-judge, trial-court functional analysis proceeds solely on what the judge does and the way he does it. These analyses change no basic principles. If the coincidence of voter residence and jurisdiction does not exist, the same possible vote dilution violations mentioned above, which have nothing to do with the function of the office being voted on, could occur. The importance of the policy embodied in section 2 compels me to say that these limits must be placed on what we write so that future courts will not cut short the intended reach of section 2. In my view, the majority view should be limited to the facts before us. With the reservations expressed, I respectfully concur in reversing the judgment appealed from.
HIGGINBOTHAM, Circuit Judge, with whom, POLITZ, KING and DAVIS, join, concurring in the judgment. JOHNSON, Circuit Judge, concurs in Part 1. WIENER, Circuit Judge, specially concurs in Part 2 in addition to concurring in the majority opinion. This is a voting rights suit challenging the election of district judges on a countywide basis in Texas. The suit was filed in a United States District Court by the League of United Latin American Citizens against the Attorney General of Texas, the Secretary of State, and other state officials, seeking a declaratory judgment that the at-large election of state district judges in nine targeted counties is illegal under Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, and violative of the fourteenth and fifteenth amendments of the United States Constitution. Plaintiffs requested the district court to enjoin further elections and to impose a districting scheme that included single-member districts. Texas has 254 counties, but the suit attacked only Harris, Dallas, Tarrant, Be-xar, Travis, Jefferson, Lubbock, Ector, and Midland Counties. These nine counties have more than one district judge elected county-wide, and elect 172 of the state’s 390 district judges. As we will explain, the suit targets Texas law requiring election of a state district judge from a district no smaller than the county, the geographical area of its jurisdiction. After a bench trial, the district court found violations of the Voting Rights Act in each of the nine counties, but rejected the constitutional arguments, finding that plaintiffs had failed to prove that the electoral system was instituted or maintained with discriminatory intent. On January 2, 1990, the district court enjoined defendants from Calling, holding, supervising and certifying elections for state district judges in Harris, Dallas, Tarrant, Bexar, Travis, Jefferson, Lubbock, Hector and Midland Counties under the current at-large system with an order for interim relief. The district court divided the nine counties into electoral sub-districts, tracing the districts of state representatives and the precinct lines of County Commissioners or Justices of the Peace. The district court’s order affected 115 of the 172 district courts. The district court also ordered a non-partisan election for May 5, 1990, with any run-off to be held on June 2, 1990. We stayed the district court’s order pending this appeal. Defendants first argue that the Voting Rights Act as amended in 1982 has no application to the election of judges. This argument rests on the assertion that the use by Congress of the word “representatives” in Section 2(b), added by amendment in 1982 and popularly known as the Dole compromise, unambiguously excluded elected judges because elected judges are not representatives. This argument in its broadest form — Section 2 of the Act has no application to any judicial elections — was rejected by this court in Chisom v. Edwards, 839 F.2d 1056 (5th Cir.), cert. denied sub nom. Roemer v. Chisom, 488 U.S. 955, 109 S.Ct. 390, 102 L.Ed.2d 379 (1988). The panel opinion was unanimous. The petition for rehearing en banc was denied without a single member of the court requesting a poll. Relatedly, but with less sweep, defendants argue that Section 2(b) has no application to state district judges because such judges do their judging singly and not as part of a collegial body. Finally, defendants attack the findings below as well as the ordered remedy. In addition to quarrels with the sufficiency of proof that the votes of minorities were diluted, defendants argue that the findings are flawed by the erroneous legal conclusion that the contribution of partisan voting to election outcomes is not relevant. We are unpersuaded that Chisom’s decision regarding the election of appellate judges was incorrect, but are persuaded that Section 2(b) will not support this attack upon the countywide election of trial judges. Because we would decide the case on this ground we do not reach defendants’ other contentions. I. A. We are pointed to no evidence of how the Framers’ viewed elected judges. This is not surprising; judges were not elected at the time the Constitution was written and ratified. The thirteen original states employed various methods of judicial selection, seven using appointment by the legislature, five by governor and council, and one by governor and legislature. See Winters, Selection of Judges — an Historical Introduction, 44 Tex.L.Rev. 1081, 1082 (1966). Electing judges was a Jacksonian reform aimed at making judicial selection more democratic: Popular sovereignty and popular control of public affairs through the elective system were hallmarks of the Jacksonian era, and, not surprisingly, the movement for popular election of judges dates from this period. Dissatisfaction with the judiciary was widespread among Jacksoni-ans. It arose from several factors including a general disaffection with the legal profession, abuses in the judicial appointment systems, and a feeling, carried over from the Jeffersonian period, that the courts were basically undemocratic. Consequently, the abolition of tenure during good behavior and the adoption of the elective system were advocated as reform measures and were hailed as in accord with the egalitarian spirit of the times. Note, The Equal Population Principle: Does It Apply to Elected Judges?, 47 No-tre Dame L.Rev. 316, 317 (1971). The first judicial elections took place as early as 1812 for Georgia lower court judges, Ga. Const, art. Ill, § 4 (1812), and in 1832 Mississippi adopted a completely elective judiciary. Miss. Const, art. IV, §§ 2, 11, 16 (1832). When it joined the Union, Texas ironically became the first new state to adopt the federal method of selecting judges, by executive appointment with confirmation by the state senate. Id.; Tex. Const, art. IV, Section 5 (1845). The wholesale change from appointed to elected judges can be marked by New York’s adoption of judicial elections in 1846. N.Y. Const, art. VI, §§ 2, 4, 12, 14 (1846). All new states entering the union after that date, until the entrance of Alaska in 1958, used elections as their method of judicial selection, and Georgia, Maryland, Virginia, and Pennsylvania switched from appointment to election. Winters, Selection of Judges, 44 Tex.L.Rev. at 1082. In short, it is fair to conclude that electing judges was viewed as being more democratic and as a way of ensuring that judges remained sensitive to the concerns of the people. It is vigorously argued that Section 2 of the Voting Rights Act has no application to judicial elections because judges are not representatives. The argument in its strongest form is that the word “representatives,” found in Section 2(b), unambiguously excludes judges because judges have no constituents. The argument continues that there is no occasion for exploring legislative history because the inquiry ends with the plain words of the statute. While drawing the language of Section 2(b) from White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), Congress substituted the word “representatives” for “legislators,” at the least to insure it reached elected executive officials. This much defendants do not deny. Rather, they argue that although “representatives” may encompass executive officials, Congress intended that the term not encompass judges. To be unambiguously inapplicable to judges, the word “representatives” must be certain of only one relevant meaning and that meaning must exclude judges. Defendants must concede, however, that at one level of generality judges are representatives. The history of electing judges and the political impulses behind that choice are powerful evidence of considered decisions to keep judges sensitive to the concerns of the people and responsive to their changing will. This reality belies the bold assertion that judges are in no sense representatives. The assertion that judges are not representatives actually masks a concern that judges should not be representatives. This is a choice left to the states. Convinced that direct accountability insures that judges represent the people in their judicial tasks, Texas has chosen to elect judges. Judges are oath bound to obey the law and to make decisions in an impartial manner but that does not mean that they are in no practical sense representatives of the people. Yet, executive officials, who are considered representatives, are bound by the same oath. While judges are indeed far removed from the logrolling give and take of the legislative and even executive processes, the effort to assure “sensitivity” and “accountability” through elections is no more than an insistence that the judges represent the people in their task of deciding cases and expounding the law. State judges, wearing their common law hats, face decisions such as whether to adopt a comparative fault standard, and in doing so represent the people in a very real sense. At least at this level of generality judges are indisputably representatives of voters. Saying so in no way steps on the equally indisputable difference between judges and other representatives — that judges do not represent a specific constituency. It is true that judges do not carry the views of a certain group of people into a larger governmental body, attempting to sway that body toward decisions favorable to their constituency. That is not the necessary role of a representative. We extoll the virtues of the jury in criminal cases— the jury is said to be the representatives of the people. Both judicial opinions and academic writings describe members of juries as representatives. See Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 3176, 82 L.Ed.2d 340 (1984); Gillers, Deciding Who Dies, 129 U.Pa.L.Rev. 1, 63-65 (1980); H. Kalven & H. Zeisel, The American Jury 436 (1966). The examples can be multiplied, but the point is plain. The conclusion that the word “representative” has the singular meaning of legislator is nothing more than an effort to substitute judicial will for that of Cong