# Old Person v. Brown

> Court of Appeals for the Ninth Circuit · December 4, 2002 · 312 F.3d 1036

URL: https://www.frixlaw.com/law-library/cases/7015735

## Case

- **Full name:** Earl OLD PERSON Carol Juneau Joe MacDonald Jeannine Padilla v. Bob BROWN, Secretary of State for the State of Montana Judy Martz, Governor of the State of Montana
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** December 4, 2002
- **Citations:** 312 F.3d 1036; 2002 WL 31702751
- **Precedential status:** Published
- **Opinion:** Concurrence by Noonan
- **Judges:** Gould, Hawkins, Noonan
- **Cited by:** 59 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7015735

## How later opinions describe it (automated extraction)

- noting that law of the case doctrine is subject to exception when “intervening 26 controlling authority makes reconsideration appropriate”
- emphasizing that the same frame of reference should be used for analyzing proportionality and the Gingles factors

## Opinion text

NOONAN, Circuit Judge,
concurring:
The “turbid waters” of voting rights jurisprudence conceal shoals that precedent makes difficult to acknowledge:
First. It would appear that the most relevant figures would be the ratio of registered majority and minority voters. If registration is not taken into account, phantoms are compared. No doubt, past discrimination may have discouraged the minority from registering; but account *1052 should be taken — possibly by polling — of how many now have qualified to vote.
Second. In any decent democracy, the quality of the candidates has some impact on the voters. Not every member of a racial or ethnic group votes blindly for a candidate from the group. If the district judge is to consider “the totality of the circumstances,” the judge should be free to notice eases where a grossly inferior candidate from the majority was preferred to a much better qualified candidate from the minority or when a grossly inferior candidate from the minority was defeated by a much better qualified candidate from the majority. To be sure, judgment as to superiority or inferiority would require a political judgment from the judge; but so do the other factors the judge is required to consider.
Third. Use of race or ethnicity to defeat racial or ethnic bias is a dangerous remedy, like using a back fire to contain a fire. See Ho v. San Francisco Unified School District, 147 F.3d 854 , at 864 (9th Cir.1998). Every time a federal court acts on the assumption that voters divide and vote on racial or ethnic lines reinforces stereotypes and stimulates thinking on racial or ethnic lines. Realistically it is necessary at times to employ this dangerous remedy, but it is a remedy to be used with keen awareness of its potentially inflammatory and reactionary effect. The rights of Americans are the rights of individuals, for which, at times, race or ethnicity acts as a surrogate. Id.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7015735. Public record. Not legal advice.