United States v. Hays Brief for Appellant

    Nos. 94-558 and 94-627

in  Supreme Court of tje ®niteb ^tate^
OcTOBEE Term, 1994

U nited States of A merica, appellant

V.

Ray H ays, et al.

State of Louisiana, appellant

V.

Ray Hays, et al.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF LOUISIANA

BRIEF FOR THE UNITED STATES

Drew S. Days, III 
Solicitor General

Deval L. Patrick 
Assistant Attorney General

Paul Bender 
Deputy Solicitor General

Irving L. Gornstein 
Assistant to the Solicitor General

Jessica Dunsay Silver 
Mark L. Gross 

Attorneys
Department of Justice 
Washington, D.C. 20530 
(202) 5U-2217



QUESTIONS PRESENTED
1. Whether a State’s intentional creation of a 

majority-minority district is always subject to strict 
scrutiny.

2. Whether the boundaries of District 4 in Louisiana’s 
redistricting plan are so highly irregular on their face 
that they can be understood only as an effort to 
segregate voters into separate districts because of their 
race.

3. Whether District 4 is narrowly tailored to further 
a compelling interest.

(I)



II
PARTIES TO THE PROCEEDING

Plaintiffs are Ray Hays, Edward Adams, Susan Shaw 
Singleton and Gary Stokely.

Defendants are Edwin Edwards, Governor of the State 
of Louisiana; Samuel B. Nunez, President of the 
Louisiana State Senate, John A. Alario, Speaker of the 
Louisiana House of Representatives; W. Fox McKeithen, 
Secretary of State of Louisiana; and Jerry Fowler, the 
Commissioner of Elections for the State of Louisiana.

The United States intervened as a defendant.



TABLE OF CONTENTS
Page

Opinions below ............................................................................... 1
Ju risd ic tio n ...................................................................................  2
Constitutional and statutory provisions involved...............  2
Statement ....................................................................................... 2
Summary of a rg u m e n t.............................................................. 10
Argument:

I. Louisiana’s redistricting plan is not subject to
strict sc ru tin y .................................................................. 14

A. Race-conscious redistricting is not always
subject to strict scrutiny ....................................  14

B. District 4 is not so highly irregular on its face
that it can be understood only as an effort to 
segregate the races for purposes of voting ..... 20

II. The State’s redistricting plan satisfies strict
scrutiny ..................................................................................  26

A. The State had compelling interests in creating
a second majority-minority d is tr ic t........................  27

B. The State’s plan is narrowly tailored to
further its compelling in te re s ts ......................  34

Conclusion............................................................................................ 36

TABLE OF AUTHORITIES

Cases:
Allen  V. State Board of Elections, 393 U.S. 544 (1969).. 32
Beer v. United States, 425 U.S. 130 (1976) ............................ 19
Cane v. Worcester County, 35 F.3d 921 (4th Cir. 1994),

petition for cert, pending (No. 94-955) ......................  21, 29-30
City o f Pleasant Grove v. United States, 479 U.S. 462

(1987) ............................................................................................   30
City o f Port Arthur  v. United States, 459 U.S. 159

(1982) ............................................................................................. 30
City o f Richmond v. J.A. Croson Co., 488 U.S. 469

(1989) .............................................................................  9, 12, 27, 34
(III)



IV

Cases—Continued: Page

City o f Richmond v. United States, 422 U.S. 358
(1975) .......................................................................................  19, 30

Davis V. Bandemer, 478 U.S. 109 (1986)....................... 16, 17
Gaffney v. Cummings, 412 U.S. 735 (1973) .................. 16
Hunter v. Underwood, 471 U.S. 222 (1985)................... 17
Jeffers v. Clinton, 730 F. Supp. 196 (E.D. Ark. 1989),

a ff ’d mem., 498 U.S. 1019 (1991)...................................... 21, 29
Johnson v. DeGrandy, 114 S. Ct. 2647 (1994).............  13, 28, 29
Johnson v. Miller, 864 F. Supp. 1354 (S.D. Ga. 1994), 

probable jurisdiction noted. Nos. 94-631, 94-797, 94-929.. 22
Johnson v. Transportation Agency, 480 U.S. 616

(1987) .......................................................................................  27
Major V.  Treen, 574 F. Supp. 325 (E.D. La. 1983) ......  2, 6, 31
McCain v. Lyhrand, 465 U.S. 236 (1984) ......................... 32
Metro Broadcasting v. FCC, 497 U.S. 547 (1990) ............  15
Palmer v. Thompson, 403 U.S. 217 (1971)......................  17
Perkins v. Mathews, 400 U.S. 379 (1971) ........................ 32
Presley v. Etowah County Comm’n, 112 S. Ct. 820

(1992) .......................................................................................  33
Regents o f the Univ. o f C alif v. Bakke, 438 U.S. 265

(1978) .......................................................................................  31
Shaw  V. Hunt, 861 F. Supp. 408 (E.D.N.C.

1994)..............................................................................  27, 28, 33, 35
Shaw V. Reno, 113 S. Ct. 2816 (1993)..............  2, 10, 15, 16, 17,

18, 20, 21, 22, 27
Thornburg v. Gingles, 478 U.S. 30 (1986)..............  12, 19, 28
United Jewish Organizations o f Williamsburgh, Inc. v.

Carey, 430 U.S. 144 (1977) ............................  9, 10, 14, 33, 34
United States v. Paradise, 480 U.S. 149 (1987).................  34
Vera v. Richards, 861 F. Supp. 1304 (S.D. Tex.

1994), appeal docketed (No. 94-988).................................... 22
Voinovich v. Quitter, 113 S. Ct. 1149 (1993)...................  24
Washington v. Davis, 426 U.S. 229 (1976) ......................  20
Wise V. Lipscomb, 437 U.S. 535 (1978)...........................  36
Wygant v. Jackson Bd. o f Educ., 476 U.S. 277 (1986) .. 27



V

Constitution, statutes and regulation: Page
U.S. Const. Amend. XIV ....................................................  2

Equal Protection Clause ...................................... 2, 4, 15, 16, 32
Voting Rights Act, 42 U.S.C. 1971 et seq.:

§ 2, 42 U.S.C. 1973 ..................................................... passim
§ 2(a), 42 U.S.C. 1973(a) .................................................  19
§ 5, 42 U.S.C. 1973c .......................................................  passim

28 C.F.R. 51.3 ..........................................................................   3

Miscellaneous:
Alenikoff & Issacharoff, Race And Redistricting:

Drawing Constitutional Lines After Shaw v. Reno, 92
Mich. L. Rev. 588 (1993).................................................. 18

Pildes & Niemi, Expressive H arm s,’’Bizarre D istricts,”
And Voting Rights: Evaluating Election-District 
Appearances A fter  Shaw v. Reno, 92 Mich. L. Rev.
483 (1993) ...............................................................................  18, 22



3fn Supreme Court of tfie Muiteti states;
October Term, 1994

No. 94-558

U nited States of A merica, appellant

V.

Ray Hays, et al.

No. 94-627

State of L ouisiana, appellant

V.

Ray H ays, et al.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF LOUISIANA

BRIEF FOR THE UNITED STATES

OPINIONS BELOW
The second opinion of the three-judge district court 

(J.S. App. la-23a) is reported at 862 F. Supp. 119. The 
first opinion of the three-judge district court (J.S. App. 
39a-109a) is reported at 839 F. Supp. 1188.

( 1)



JURISDICTION
The judgment of the three-judge court was entered on 

December 9, 1994. J.A. 9. A notice of appeal was filed on 
December 9, 1994. J.A. 233. This Court noted probable 
jurisdiction on December 12, 1994. J.A. 237. The 
jurisdiction of this Court rests on 28 U.S.C. 1253.

CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED

The Equal Protection Clause of the Fourteenth 
Amendment provides that “[N]o State shall * * * deny 
to any person within its jurisdiction the equal protection 
of the laws.” The relevant federal statutory provisions 
are Sections 2 and 5 of the Voting Rights Act, 42 U.S.C. 
1973, 1973c, which appear in the appendix to the 
jurisdictional statement at 117a-119a.

STATEMENT
This case concerns a challenge to the State of 

Louisiana’s 1994 congressional redistricting plan. A 
three-judge court invalidated the plan after finding that 
it violated the standards for race-conscious redistricting 
established in Shaw v. Reno, 113 S. Ct. 2816 (1993).

1. The population of the State of Louisiana is more 
than 30% black. J.A. 179. From the end of Re­
construction until the 1980’s, black voters were not in 
the majority in any of Louisiana’s congressional 
districts, and no black person was elected to Congress. 
In 1983, a three-judge court invalidated Louisiana’s 1982 
congressional redistricting plan on the ground that it 
fragmented the minority population in the New Orleans 
area in violation of Section 2 of the Voting Rights Act, 
42 U.S.C. 1973. Major v. Treen, 574 F. Supp. 325, 341 
(E.D. La. 1983) (three-judge court). To remedy that 
violation, a plan was adopted in which blacks constituted



a majority in a district centered in New Orleans. 
Louisiana had a total of eight congressional districts in 
that plan. In 1990, a black candidate was elected to 
Congress from the New Orleans-based district.

Louisiana’s congressional redistricting efforts were 
preceded by the State’s redistricting of the Board of 
Elementary and Secondary Education (B.E.S.E.). 
Traditionally, the boundaries of the eight B.E.S.E. 
districts had been identical to the boundaries of the 
State’s congressional districts. The new B.E.S.E. plan 
contained one majority-minority district. The State 
submitted the plan to the Department of Justice for 
preclearance under Section 5 of the Voting Rights Act of 
1965, 42 U.S.C. 1973c. Acting on behalf of the Attorney 
General (28 C.F.R. 51.3), the Assistant Attorney General 
for the Civil Rights Division refused to preclear the 
plan. DX 16 (1993 Hearing). The Assistant Attorney 
General’s objection letter noted that the B.E.S.E. plan 
had fragmented the minority population along the 
Mississippi River among three majority-white districts, 
that polarized voting by whites would preclude blacks 
from having an opportunity to elect a candidate of their 
choice in any of those districts, and that the State’s 
black population was large enough and compact enough 
to constitute a majority in a second district that included 
the minority voters who lived along the Mississippi 
River. Ibid. The letter concluded that the State had not 
shown that its failure to create a second majority- 
minority district was free of discriminatory purpose. 
Ibid. In response to that objection, the State adopted a 
new B.E.S.E. plan that created two majority-minority 
districts, which the Assistant Attorney General then 
precleared.

As a result of the 1990 Census, Louisiana lost one of 
its congressional seats. J.S. App. 55a. In May, 1992, the



state legislature enacted a districting plan for the seven 
remaining seats. Id. at 39a. That plan included two 
majority-black districts. One was centered in New 
Orleans and was similar to the majority-black district in 
the plan used in the 1980s; the other (District 4) was a Z- 
shaped district that spanned a large part of the State. 
The State’s plan was precleared by the Department of 
Justice.

Appellees, four voters living in Lincoln Parish, 
Louisiana, challenged that plan in 1992 on the ground 
that it segregated voters into districts on the basis of 
race, in violation of the Equal Protection Clause. J.S. 
App. 42a. The district court denied appellees’ request 
for a preliminary injunction, and the 1992 congressional 
elections were held under the State’s plan. Ibid. A black 
candidate was elected to Congress from District 4.

In December, 1993, following this Court’s decision in 
Shaw, a three-judge court ruled in favor of appellees on 
the merits. J.S. App. 39a-109a. The court held that “[a] 
legislature creates a racially-gerrymandered districting 
plan when it intentionally draws one or more districts 
along racial lines or otherwise intentionally segregates 
citizens into voting districts based on their race.” Id. at 
48a. The court concluded that such an intent could be 
proven “inferentially * * * when districts are so 
bizarrely shaped that they presumptively bespeak an 
impermissible purpose.” Id. at 50a. The court also 
concluded that such an intent could be shown “by direct 
evidence that a legislature enacted a districting plan 
with the specific intent of segregating citizens into 
voting districts based on their race.” Ibid. The court 
found that appellees had proven racial gerrymandering in 
both ways. Id. at 51a.

Applying strict scrutiny, the court assumed that the 
State had one or more compelling interests in creating a



second majority-black district. J.S. App. 79a. The court 
went on to hold, however, that the State’s plan was not 
narrowly tailored to further those interests for two 
reasons. First, the court found that District 4, which 
was 63% black in voting age population, contained more 
black voters than were “reasonably necessary to give 
blacks a realistic chance to determine the outcome of 
elections there.” Id. at 83a-84a. According to the court, 
black voters would have an opportunity to elect the 
candidate of their choice in a district that is 55% black in 
voting age population. Id. at 84a. Second, the court found 
that “a second black majority district could have been 
drawn that would have done substantially less violence to 
traditional redistricting principles.” Id. at 85a.

The State appealed. While that appeal was pending, the 
State enacted a new redistricting plan (Act 1), with a 
newly configured majority-minority District 4. The 
Department of Justice precleared Act 1. On June 27, 
1994, this Court vacated the district court’s judgment 
and remanded the case for further proceedings in light of 
the new plan. J.S. App. 2a.

2. Appellees filed an amended complaint, challenging 
Act 1 on equal protection grounds. J.S. App. 2a. The 
United States intervened to defend the plan. The court 
held a hearing on July 21 and July 22, 1994. Ibid.

The evidence at trial showed that the plan was drafted 
by legislative aide Glenn Koepp, based on instructions he 
received from two state senators with leadership roles 
on the State Senate redistricting committee. The two 
state senators told Koepp to devise a plan that would 
respect traditional redistricting values and avoid 
unnecessary packing of minority voters in accordance 
with the district court’s 1993 decision, while still 
attempting to create a second majority-black district. 
J.A. 32-35, 105-106, 109, 120-121. To accomplish those



6

purposes, the senators suggested that Koepp model the 
district on congressional District 8 from prior 
redistricting plans. District 8 already had the second 
highest percentage of black voters of any district. J.A. 
37, 87, 93-94,105-106.

The State had used versions of old District 8 in every 
redistricting plan enacted between 1967 and 1992. J.S. 
App. 11 la-114a. Old District 8 generally began in the 
western part of the State, included areas along the Red 
and Mississippi Rivers as it moved in a south-easterly 
direction, and ended beyond Baton Rouge. J.S. App. 111a- 
114a. Blacks are geographically concentrated in much of 
the area covered by the various configurations of old 
District 8, particularly along the Red and Mississippi 
Rivers. J.A. 38-39, 62, 82. In 1980, District 8 was 33.2% 
black; in 1990, it was 38.4% black. Major v. Treen, 574 F. 
Supp. at 328 n.3; J.A. 184. The area along the Red River 
Valley is also an important economic region and the 
people in that region share common interests. J.A. 71- 
72, 75-76,196.

Using old District 8 as a model, Koepp devised new 
District 4. As Koepp explained it, “once I started 
working with it, * * * putting together parishes in the 
old Eighth, it got to be a district that was very close to a 
minority district.” J.A. 41. And once Koepp extended the 
lines to Shreveport, the district was over 50% minority. 
Ibid. In devising the district, Koepp tried to keep small 
towns, precincts, and parishes intact, retain existing 
congressional districts as much as possible, reflect 
communities of interest, and place incumbents in 
separate districts. J.A. 35, 39-45, 107. To satisfy the one 
person, one vote rule and other objectives in the plan, 14 
of Louisiana’s 64 parishes were divided. J.A. 37, 45-46.

During State Senate redistricting hearings, Koepp 
displayed maps of various versions of old District 8 and



explained that they had been used as the basis for the 
new majority-minority district. J.A. 37-38, 164-178. The 
State House also held hearings and considered two 
additional plans similar to the one drafted by Koepp. SX 
7 (maps, H.B. 8,11); J.A. 194. The House was advised that 
those plans were also based on old District 8. J.A. 201. 
The House and Senate made several minor adjustments 
in Koepp's plan in the Lafayette and St. Landry area to 
satisfy an incumbent’s concern about the political 
makeup of his district and to split fewer small towns. 
J.A. 55, 94-96,197, 227.

As finally enacted, the new district begins in the 
northwest part of the State near Shreveport, runs 
diagonally southeast along the Red River to Alexandria, 
and then further southeast along the Mississippi River 
past Baton Rouge. J.S. App. 110a. The district is 
approximately 55% black in registered voters. J.A. 41.

In recent years, the cultural regions of Louisiana have 
become much less distinct and agricultural regions have 
become widely dispersed. J.A. 69-70. The adopted plan 
recognizes the State’s geographic, economic, and 
cultural regions as well or better than any of the 
alternative plans considered by the legislature, including 
those with only one majority-minority district. J.A. 74- 
75, 84.

Voting in Louisiana is racially polarized, and blacks in 
Louisiana have not been elected either to Congress or 
the State legislature except from districts in which 
blacks have constituted a majority of registered voters. 
J.A. 65-67, 181-193. Aware of that reality, the State 
legislature created a second majority-minority district 
in order to comply with the requirements of Sections 2 
and 5 of the Voting Rights Act, and to continue to 
remedy Louisiana’s history of discrimination in voting. 
J.A. 41-43, 87-90,104,113-115, 202-219.



8

3. On July 22, 1994, the district court held the new 
plan unconstitutional. On July 25, 1994, it enjoined 
further use of the plan, and required 1994 and subsequent 
elections to be held under a plan drawn by the court. J.S. 
App. 24a-26a. The court’s plan creates only one 
majority-black district; all other districts are less than 
30% black in registered voters.

The district court issued an opinion explaining its 
decision on July 29, 1994. J.S. App. la-23a. The court 
found that “[t]he districting map of Louisiana, created 
under Act 1, reflects a racial gerrymander.” Id. at 3a. 
The court specifically found that District 4 “cuts across 
historical and cultural divides, splits twelve of its fifteen 
parishes and divides four of the seven major cities of the 
State.” Ibid. The court added that “[t]he statistical 
evidence showing the racial composition of the districts 
further supports the finding that District Four is so 
extremely irregular on its face that it rationally can be 
viewed only as an effort to segregate the races for 
purposes of voting.” Ibid, (internal quotation marks 
omitted). That evidence, the court concluded, shifted the 
burden to the State to show that District 4 did not 
reflect a racial gerrymander. Ibid.

The court then found that the State had failed to 
satisfy that burden. J.S. App. 4a-5a. The court found 
that the State’s assertion that the residents along the 
Red River had common interests was a “post hoc 
rationalization.” The court also found that the State’s 
claim that it had relied on the design of old District 8 
was “mere pretext.” Id. at 5a. In reaching those 
conclusions, the court relied in large part on the fact 
that “[t]he Senators themselves admitted that race 
played a large if not dominant role in the map as it is now 
drawn.” Id. at 4a. The court also noted that old District 
8 had never been challenged and that it was originally



9

created for the purpose of ensuring the reelection of an 
incumbent congressman. Id. at 5a. The court concluded 
that while “other factors” affected the way in which 
District 4 was drawn, the “fundamental factor driving 
Act 1 was race.” Ibid.

The court then held tha t “[r]ace-conscious 
redistricting, while not always unconstitutional, is 
always subject to strict scrutiny.” J.S. App. 5a. The 
court noted that this Court had applied a more 
deferential standard to race-conscious redistricting in 
United Jewish Organizations of Williamsburgh, Inc. v. 
Carey, 430 U.S. 144 (1977) (UJO). J.S. App. 5a. The 
court concluded, however, that City of Richmond v. 
J. A. Croson Co., 488 U.S. 469 (1989), undermined the 
holding in UJO, and required strict scrutiny of all race­
conscious redistricting. J.S. App. 6a.

The court went on to hold that the State had not 
proven that its consideration of race was supported by a 
compelling interest. J.S. App. 6a-7a. The court con­
cluded that Section 5 “cannot be read to compel the 
results of Act 1” because there was no showing “that 
[the] failure to create a second majority-minority 
district would either be a retrogression of minority 
strength or have an illegal purpose.” J.S. App. 8a. The 
court further concluded that a second majority-minority 
district was not compelled by Section 2 because proof of a 
“numerous and compact minority” is a precondition for a 
Section 2 dilution claim and “[t]he evidence convincingly 
proves that the State cannot clear [that] hurdle.” J.S. 
App. 8a. Finally, the district court rejected the State’s 
assertion that the creation of a majority-minority 
district furthered the State’s interest in remedying its 
history of racial discrimination. Id. at 9a-10a. The court 
concluded that “[w]ithout concrete evidence of the 
lingering effects of past discrimination * * * we cannot



10

agree that the re-segregation of Louisiana by racially 
configured voting districts is warranted.” Id. at 10a.

The court then addressed the question of remedy. It 
stated that it had adopted its own plan because of the 
need for prompt action and because the State had already 
failed twice to adopt a constitutionally acceptable plan. 
J.S. App. 10a.

Chief Judge Shaw issued a separate opinion in which 
Judge Wiener concurred. That opinion generally tracked 
the court’s reasoning. J.S. App. 13a-23a.

On August 11, 1994, this Court stayed the district 
court order, permitting the 1994 congressional elections 
to proceed under the State’s plan. On December 9, 1994, 
the district court reentered its judgment to cure a 
technical deficiency. On December 12, 1994, this Court 
noted probable jurisdiction.

SUMMARY OF ARGUMENT
I. A. The district court’s holding that all race­

conscious redistricting is suspect is inconsistent with 
United Jewish Organizations of Williamsburgh, Inc. v. 
Carey, 430 U.S. 144 (1977). In that case, five Justices 
agreed that the intentional creation of majority-minority 
districts is constitutional absent proof that the State’s 
redistricting plan has the purpose and effect of diluting a 
racial group’s voting strength. In Shaw v. Reno, 113 S. 
Ct. 2816 (1993), the Court held that race-conscious 
redistricting is suspect in those rare cases when the 
shape of a district is so highly irregular that it can be 
understood only as an effort to segregate the races for 
voting purposes. The Court in Shaw did not overrule 
UJO, but distinguished it on the ground that the plan at 
issue in UJO followed traditional districting practices. 
UJO therefore remains controlling when a State



11

intentionally creates majority-minority districts that 
are consistent with its traditional districting practices.

UJO is correct and should not be overruled. The 
district court’s holding that all race-conscious 
redistricting is suspect deprives racial minorities who 
share common interests of the same opportunity to 
influence redistricting decisions that is accorded to 
other groups. It conflicts with the Court’s holdings that 
plaintiffs challenging a decision on equal protection 
grounds must demonstrate a discriminatory effect. It 
fails to give sufficient weight to Congress’s judgment 
that jurisdictions must be conscious of the racial 
consequences of their redistricting decisions. And it 
ignores the reality that those who redistrict are race­
conscious because race often correlates with voting 
behavior.

B. A redistricting plan is suspect under Shaw only if 
it departs dramatically from the State’s traditional 
districting practices. For that reason, the most salient 
fact in this case is that District 4 in the State’s plan 
resembles District 8 in the plans that the State used 
between 1967 and 1992.

The district court erred in concluding that the State’s 
admission that it intended to create a majority-minority 
district undermined the State’s reliance on old District 
8. The inquiry under Shaw is an objective one into 
whether the district is highly irregular when compared 
to districts drawn according to the State’s traditional 
districting practices. Even if the State’s intent were the 
ultimate issue, however, the State’s admission that it 
intended to create a majority-minority district is not 
inconsistent with the State’s assertion that it also took 
into account the traditional districting values that would 
be served by creating a district that resembled prior



12

districts. There is nothing suspect about that kind of 
balanced approach.

Isolated segments of District 4 are irregular in shape. 
The relevant inquiry, however, is whether the district 
as a whole is bizarre, not whether isolated segments of it 
are. District 4 reflects a con-scientious effort to create 
a majority-minority district while simultaneously 
pursuing other traditional Louisiana redistricting 
interests. It is therefore not suspect under Shaw.

II. In any event, the State’s plan satisfies strict 
scrutiny because it is narrowly tailored to further the 
State’s compelling interest in complying with the 
Voting Rights Act and ameliorating the present effects 
of racially polarized voting.

A. To establish a compelling interest in creating a 
majority-minority district in order to comply with the 
Voting Rights Act, the State was not required to prove 
that the Voting Rights Act ultimately mandated such a 
district. Rather, it was sufficient for the State to show 
that it had a sound basis for concluding that its failure to 
create a second majority-minority district would have 
led to a prima facie case against it under the Act. City of 
Richmond v. J.A. Croson Co., 488 U.S. 469, 500 (1989).

A State clearly has a sound basis for creating a 
majority-minority district to comply with Section 2 
when (1) the minority group is sufficiently large and 
compact to constitute a majority in a district; (2) the 
minority group is politically cohesive; (3) whites usually 
vote sufficiently as a bloc to defeat the minority’s 
preferred candidates; and (4) the failure to create a 
majority-minority district would leave the minority 
group substantially underrepresented when compared 
with the group’s percentage in the population. 
Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986); Johnson



13

V. DeGrandy, 114 S. Ct. 2647, 2658-2662 (1994). The 
State made each of those showings.

The district court found that blacks in the State are 
not sufficiently compact to constitute a majority in a 
second district. The relevant inquiry, however, is 
whether the proposed majority-minority district is 
reasonably compact in light of the State’s traditional 
practices. Since District 4 is similar in compactness to 
districts drawn by the State in the same general area, 
the compactness requirement was satisfied.

The State also had a sound basis for believing that it 
would have difficulty satisfying its burden under Section 
5 of showing that the failure to create a second majority- 
minority district was free of discriminatory purpose. In 
addition to the factors already discussed, the Attorney 
General had objected on discriminatory purpose grounds 
to a redistricting plan for the State Board of Elementary 
and Secondary Education, which had included one 
majority-minority district out of eight. The district 
court questioned the validity of that objection. Since 
there was no evidence that the objection was clearly 
insupportable, however, the State could properly rely on 
it.

The State also had a compelling interest in 
ameliorating the effect that racially polarized voting 
continues to have on the opportunity of minority voters 
to elect a candidate of their choice. Faced with the kind 
of extreme and pervasive bloc voting present in 
Louisiana, the State could properly seek to insure a fair 
allocation of political power.

B. The State’s plan is narrowly tailored. It creates 
the number of majority-minority districts that its 
interests in complying with the Voting Rights Act and 
fairly allocating political power justify. It does not 
needlessly pack minority voters into the majority-



14

minority districts. And it gives sufficient weight to 
other redistricting interests.

ARGUMENT

I. LOUISIANA’S REDISTRICTING PLAN IS NOT 
SUBJECT TO STRICT SCRUTINY

A. Race-Conscious Redistricting Is Not Always Subject 
To Strict Scrutiny

In enacting its congressional redistricting plan, the 
State intended to create a second majority-minority 
district. The district court viewed that intent alone as a 
sufficient basis for subjecting Act 1 to strict scrutiny. 
The court’s core holding was that “[rjace-conscious 
redistricting, while not always unconstitutional, is 
always subject to strict scrutiny.” J.S. App. 5a.

That holding is inconsistent with United Jewish 
Organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 
144 (1977). In UJO, the State “deliberately used race in a 
purposeful manner” to create majority-minority dis­
tricts. Id. at 165. Seven of the eight Justices parti­
cipating voted to uphold the State’s plan without 
subjecting it to strict scrutiny. Five Justices 
specifically agreed that the intentional creation of 
majority-minority districts does not give rise to an equal 
protection claim, absent proof that it has the intent and 
effect of diluting the majority’s voting strength. See 
ibid. (White, J. joined by Stevens, J. and Rehnquist, J.); 
id. at 179-180 (Stewart, J., concurring, joined by Powell, 
J.). Because the plan at issue in UJO was consistent 
with traditional redistricting principles, id. at 168, UJO 
did not resolve the question of what constitutional 
standard would apply to plans that departed from such 
principles in order to create majority-minority districts.



15

In Shaw, this Court addressed that issue, holding that 
a redistricting plan that is “so extremely irregular on 
its face that it rationally can be viewed only as an effort 
to segregate the races for purposes of voting” is subject 
to strict scrutiny. 113 S. Ct. at 2824. Such a plan is 
constitutional only if it is narrowly tailored to further a 
compelling interest. Id. at 2825. The Court “express[ed] 
no view as to whether The intentional creation of 
majority-minority districts, without more’ always gives 
rise to an equal protection claim.” Id. at 2828. The 
Court did not, however, purport to overrule UJO. 
Instead, it distinguished UJO on the ground that the 
State in that case had “adhered to traditional districting 
principles.” Id. at 2829. The Court also explicitly and 
repeatedly limited its holding to those “rare” cases in 
which districts are so highly irregular that they can be 
understood only in racial terms. Id. at 2824, 2825, 2826, 
2828, 2830. The district court’s holding in this case that 
Louisiana’s intent to create a majority-minority district 
automatically triggered strict scrutiny is therefore in 
conflict with UJO and not supported by Shaw.

The Court’s holding in UJO is correct and should not 
be overruled. That is true for several reasons. First, a 
holding that all race-conscious districting is automati­
cally suspect would be inconsistent with the central 
purpose of the Equal Protection Clause—to insure equal 
treatment regardless of race. In most contexts, the 
principle of equal treatment is fully effectuated by 
considering each person as an individual, without regard 
to his or her race. Metro Broadcasting v. FCC, 497 
U.S. 547, 602 (1990) (O’Connor, J. dissenting). 
Redistricting, however, presents a different situation.

In adopting redistricting plans. States do not treat 
people as individuals, but as members of groups. 
Redistricting “inevitably has and is intended to have



16

substantial political consequences.” Gaffney v. Cum­
mings, 412 U.S. 735, 753 (1973). Because of those politi­
cal consequences, groups with distinctive political 
interests seek to influence the way in which district 
lines are drawn. The groups participating in the 
redistricting process include not only political parties, 
groups with the same business interests, groups made up 
of people with similar socio-economic status, and issue- 
oriented groups, but also racial, ethnic, and religious 
groups. In redistricting, a State inevitably seeks to 
“reconcile the competing claims of [those] groups.” 
Davis V. Bandemer, 478 U.S. 109, 147 (1986) (O’Connor, 

J., concurring in the judgment).
Under the Equal Protection Clause, a State must be 

free to give the same consideration to the claims of racial 
minority groups that seek to influence redistricting as 
to the claims of any other interest group. For example, 
if, as the district court indicated, a State may properly 
seek to accommodate the political interests of North 
Louisiana Irish, mainline Protestants, South Louisiana 
Catholics, and Creoles (J.S. App. 17a), it must have the 
same freedom to accommodate the political interests of 
blacks who live along the Red and Mississippi Rivers. If 
all race-conscious redistricting were subject to strict 
scrutiny, however, racial minority groups sharing 
common interests would have less opportunity to 
influence redistricting than other groups. That result 
cannot be squared with the central purpose of the Equal 
Protection Clause. As Justice Stevens has stated, “[i]f it 
is permissible to draw boundaries to provide adequate 
representation for rural voters, for union members, for 
Hasidic Jews, for Polish Americans, or for Republicans, 
it necessarily follows that it is permissible to do the 
same thing for members of the very minority group 
whose history in the United States gave birth to the



17

Equal Protection Clause.” Shaw, 113 S. Ct. at 2844-2845 
(Stevens, J., dissenting).

The holding in Shaw  is not at odds with that 
conclusion. The showing required in Shaw to invoke 
strict scrutiny—that a majority-minority district is so 
highly irregular on its face that it can be understood 
only as an effort to segregate the races for voting 
purposes—indicates that the State has taken action on 
behalf of a racial minority group that it is unwilling to 
take on behalf of any other group. That sort of 
preference for racial interests triggers special equal 
protection concerns. When a State follows traditional 
districting practices in creating a majority-minority 
district, however, no such special concerns are raised.

The district court’s holding that all race-conscious 
redistricting triggers stric t scrutiny is also 
inconsistent with this Court’s holdings that a plaintiff 
challenging a decision under the Equal Protection 
Clause must show that the decision has discriminatory 
consequences. Davis v. Bandemer, 478 U.S. at 127 
(plurality opinion); id. at 161 (Powell, J., concurring in 
part and dissenting in part); Hunter v. Underwood, 471 
U.S. 222, 227 (1985); Palmer v. Thompson, 403 U.S. 217, 
224-225 (1971). Shaw did not eliminate that requirement. 
Instead, the Court there identified two race-based 
injuries that it believed could be traced to a plan that is 
so highly irregular that it can be understood only as an 
effort to segregate the races for voting purposes. The 
Court concluded that such a plan imposes harm because 
it conveys the message “that members of the same racial 
group—regardless of their age, education, economic 
status, or the community in which the[y] live—think 
alike, share the same political interests, and will prefer 
the same candidates at the polls.” 113 S. Ct. at 2827. And 
the Court concluded that such a plan also inflicts harm



18

because “[w]hen a district obviously is created solely to 
effectuate the perceived common interests of one racial 
group, elected officials are more likely to believe that 
their primary obligation is to represent only the 
members of that group, rather than their constituency 
as a whole.” Ihid.

Whether or not the Court was right in attributing 
those consequences to the creation of highly irregular 
districts (see 113 S. Ct. at 2848 n.9 (Souter, J., 
dissenting)), the Court did not suggest in Shaw that 
such effects would occur when the creation of a majority- 
minority district is consistent with traditional 
districting practices. To the contrary, the premise of 
Shaw  is that “race-conscious redistricting that 
‘segregates’ by drawing odd-shaped lines is qualitatively 
different from race-conscious redistricting that affects 
groups in some other way.” Id. at 2838 (White, J., 
dissenting). As commentators have noted, the harms 
identified by Shaw flow from the fact that highly 
irregular majority-minority districts may convey the 
message to the public that race has submerged all other 
redistricting values—a message that is not conveyed by 
more regular majority-minority districts. Pildes & 
Niemi, Expressive Harms, “Bizarre Districts,” And 
Voting Rights: Evaluating Election-District Appear­
ances After Shaw v. Reno, 92 Mich. L. Rev. 483, 526 
(1993); See also, Alenikoff & Issacharoff, Race And 
Redistricting: Drawing Constitutional Lines After 
Shaw V. Reno, 92 Mich. L. Rev. 588, 613-614 (1993) 
(extremely irregular majority-minority districts may be 
racially divisive in a way that more compact majority- 
minority districts are not).

Treating all race-conscious redistricting as automa­
tically suspect also gives insufficient weight to 
Congress’s judgment that States should be conscious of



19

the racial consequences of their redistricting decisions. 
Section 5 of the Voting Rights Act compels covered 
jurisdictions, like Louisiana, to create majority- 
minority districts when that is necessary in order to 
avoid retrogression in minority voting strength or when 
the failure to draw such a district would reflect 
purposeful racial discrimination. Beer v. United States, 
425 U.S. 130, 140-142 (1976); City of Richmond v. United 
States, 422 U.S. 358, 378-379 (1975). Similarly, Section 2 
of the Voting Rights Act requires all state and local 
jurisdictions to draw majority-minority districts if the 
failure to do so would lead to discriminatory “results.” 
42 U.S.C. 1973(a); Thornburg v. Gingles, 478 U.S. 30 
(1986). To view the intentional drawing of majority- 
minority districts as suspect in all circumstances would 
ignore this legal context in which redistricting 
authorities must operate and would undermine Con­
gress’s decision to require such districts where 
necessary to avoid discriminatory results.

Such a rule would also place States in a legal 
straitjacket in which they would face litigation with 
minority voters if they do not create a majority-minority 
district and litigation from others if they do. The result 
would be the functional equivalent of a requirement that 
States and localities must preclear all their re­
districting plans in federal court before they can safely 
implement them. It is one thing to put States in that 
position in the relatively rare circumstances in which 
they contemplate drawing highly irregularly-shaped 
majority-minority districts. It is another thing to 
create that dilemma every time a State or locality 
contemplates creating a majority-minority district.

Finally, as this Court noted in Shaw, “redistricting 
differs from other kinds of state decisionmaking in that 
the legislature always is aware of race when it draws



20

district lines, just as it is aware of age, economic status, 
religious and political persuasion, and a variety of other 
demographic factors.” 113 S. Ct. at 2826. Because 
experience shows that race is often highly correlated 
with voting behavior, it is unrealistic to expect 
legislators to ignore that reality when they engage in 
the highly political task of redistricting. Id. at 2835 
(White, J., dissenting) (“[I]t can hardly be doubted that 
legislators routinely engage in the business of making 
electoral predictions based on group characteristics— 
racial, ethnic, and the like.”); id. at 2844 (Stevens, J., 
dissenting) (“Politicians have always relied on 
assumptions that people in particular groups are likely 
to vote in a particular way when they draw new district 
lines.”). Thus, if legislators are candid in their 
discussions concerning redistricting plans, a holding 
that all race-conscious redistricting is automatically 
suspect would subject a very large number of 
redistricting plans at all levels of government to strict 
scrutiny. Cf. Washington v. Davis, 426 U.S. 229, 248 
(1976) (noting that the consequence of treating all state 
laws with a discriminatory effect as suspect would be to 
raise serious questions about, and perhaps invalidate, a 
wide range of state laws).

In sum, the State’s intent to create a second majority- 
minority district did not trigger strict scrutiny in this 
case. The district court erred in holding otherwise.

B. District 4 Is Not So Highly Irregular On Its Face That 
It Can Be Understood Only As An Effort To 
Segregate The Races For Purposes Of Voting

The district court also subjected the State’s plan to 
strict scrutiny on the ground that District 4 was “so 
extremely irregular on its face that it rationally can be 
viewed only as an effort to segregate the races for



21

purposes of voting.” J.S. App. 3a. The court erred in 
reaching that conclusion as well.

1. The question whether a district is so highly 
irregular on its face that it can be understood only as an 
effort to segregate the races for purposes of voting is not 
a purely factual issue that a court can decide based 
entirely on intuition or aesthetic reactions. That 
inquiry must be guided by meaningful legal standards. 
Four principles are particularly important here.

First, the manner in which the State has drawn and 
continues to draw other districts is the most appropriate 
benchmark for determining whether a particular 
majority-minority district is “bizarre.” See Cane v. 
Worcester County, Maryland, 35 F.3d 921, 927 n.6 (4th 
Cir. 1994), petition for cert, pending (No. 94-955); cf. 
Jeffers v. Clinton, 730 F. Supp. 196 (E.D. Ark. 1989), aff’d 
mem., 498 U.S. 1019 (1991). As previously discussed, a 
State should have the same leeway to accommodate the 
interests of racial minority groups with common 
interests as it has to accommodate other interest 
groups. For that reason, only majority-minority 
districts that are much more unusual in shape than 
districts drawn by the State to accommodate other 
political interests trigger strict scrutiny. Moreover, as 
previously noted, the Court in Shaw concluded that a 
district is suspect when it conveys a message that 
excessive consideration has been given to race. That 
perception will be shaped by how the State ordinarily 
redistricts, not by some model redistricting ideal. 
Practical considerations also necessitate reliance on the 
State’s own redistricting standards. The only alterna­
tive to that approach would be a wholly subjective “I 
know it when I see it” test.

Second, Shaw  described suspect districts as 
“extremely irregular” and “bizarre.” 113 S. Ct. at 2824-



22

2825. Districts that are only “somewhat irregular” are 
not suspect. Id. at 2826. A district is therefore suspect 
under Shaw only if it departs dramatically from the 
State’s traditional redistricting practices.

Third, Shaw held that a district is suspect only when 
it is so extremely irregular “on its face” that it can be 
understood only in racial terms. 113 S. Ct. at 2824. The 
terms “on its face” clearly mandate an objective inquiry 
into the nature of the district, not a subjective inquiry 
into the legislature’s intent. Johnson v. Miller, 864 F. 
Supp. 1354, 1395 & n.2 (S.D. Ga. 1994) (Edmondson, J., 
dissenting), probable jurisdiction noted. Nos. 94-631, 94- 
797, 94-929; see also Pildes & Niemi, supra, 92 Mich. L. 
Rev. at 508.

Finally, the relevant inquiry under Shaw is whether 
the district is bizarre. The fact that isolated segments of 
a district are irregular does not make the district itself 
bizarre. Vera v. Richards, 861 F. Supp. 1304, 1345 (S.D. 
Tex. 1994), appeal docketed (No. 94-988).

2. Application of these legal standards leads to the 
conclusion that District 4 should not have been subjected 
to strict scrutiny. The most salient fact in this case is 
that District 4 resembles a majority-white district used 
in previous State redistricting plans. For 25 years (from 
1967-1992), District 8 usually began in the western part 
of the State, included areas along the Red and 
Mississippi Rivers as it moved southeast, and ended 
beyond Baton Rouge. J.S. App. llla-114a. District 4 
includes the same general area. Id. at 110a. District 4 
most closely resembles District 8 in the congressional 
plans used in 1967-1970 and 1971-1972. Id. at 112a, 113a. 
Because District 4 is consistent with the State’s 
redistricting traditions, it is not suspect under Shaw.

In addition, the population along the Red River Valley 
which is included in District 4 shares common social and



23

economic interests. That evidence reinforces the 
conclusion that District 4 is not so irrational on its face 
that it can be understood only in racial terms.

Isolated segments of District 4 are irregular. But as 
we have discussed, the relevant inquiry under Shaw is 
whether the district as a whole is bizarre, not whether 
isolated segments of it are. When viewed as a whole. 
District 4 is not such a dramatically irregular departure 
from State districting practices as to make it suspect 
under Shaw.

3. The district court rejected the State’s reliance on 
the fact that District 4 resembles old District 8 and 
encompasses a community of interest along the Red and 
Mississippi Rivers as “post hoc rationalization” and 
“mere pretext.” J.S. App. 5a. In reaching those 
conclusions, the court relied in large part on the 
admissions of state legislators that race played a large 
role in the drawing of District 4. Ibid. As we have noted, 
however, Shaw mandates an objective inquiry into 
whether a district conveys the impression that racial 
considerations have been pursued to the exclusion of 
other redistricting values, not a subjective inquiry into 
the legislature’s intent. The resemblance of District 4 
to old District 8 and the presence of a community of 
interest along the Red and Mississippi Rivers are 
powerful objective indications that District 4 would not 
be understood as being driven by racial considerations to 
the exclusion of other redistricting values. Those 
factors are therefore of critical relevance in evaluating 
appellees’ Shaw claim. Conversely, the fact that state 
legislators conceded that the State intended to draw a 
majority-minority district is not determinative of a 
Shaw claim. Under Shaw, there is nothing suspect 
about a State’s desire to draw a majority-minority 
district.



24

Even if the legislature’s actual intent were the 
relevant subject of inquiry, the district court misunder­
stood what the State sought to prove by introducing 
evidence that it modelled District 4 on District 8 and 
that it included persons in District 4 who had common 
interests other than their race. The point of that 
evidence was not to show that race played no role in the 
drawing of District 4; it admittedly played an important 
one. Rather, the point was to show that the State was 
attempting to draw a majority-minority district in a way 
that was consistent with other traditional redistricting 
interests. The State’s acknowledgement that it intended 
to create a majority-minority district is not in any way 
inconsistent with its assertion that it also took into 
account the traditional districting values of using 
districts that resemble prior districts and including 
persons with common interests. That acknowledgement 
therefore provides no basis for the court’s finding that 
the State’s reliance on those other factors was 
pretextual.

In rejecting the State’s reliance on old District 8, the 
district court also attributed significance to the fact that 
District 8 was “never challenged” and “was crafted for 
the purpose of ensuring the reelection of Congressman 
Gillis Long.” J.S. App. 5a. Legislation that has not 
been challenged, however, is presumptively consti­
tutional. Voinovich v. Quitter, 113 S. Ct. 1149, 1156-1157 
(1993). Nor does it denigrate the State’s reliance on old 
District 8 to note that the district was originally drawn 
to protect an incumbent congressman. To the contrary, 
that fact indicates that the shape of District 8 reflects 
the S tate’s traditional districting practices. The 
district court therefore erred in failing to treat that 
district as a benchmark for determining whether 
District 4 reflected such a dramatic departure from the



25

State’s traditional practices as to be suspect under 
Shaw.

4. The district court made only a conclusory finding 
that District 4 was bizarre. J.S. App. 3a. Chief Judge 
Shaw, joined by Judge Weiner, elaborated on why, in 
their opinion. District 4 should be viewed as bizarre. J.S. 
App. 15a-17a. Their reasons are unpersuasive.

Chief Judge Shaw first found that District 4 is not 
compact because it is 250 miles long and spans 14 
parishes. J.S. App. 15a-16a. Other districts in the 
current State plan, however, are also long and span 
numerous parishes. District 6 is about 200 miles long 
and spans 18 parishes; District 5 is about 190 miles long 
and spans 17 parishes; and District 3 is about 175 miles 
long and spans 15 parishes. J.S. App. 110a. In the court’s 
plan (J.S. App. 38a), District 4 is about 200 miles long and 
spans 12 parishes, and District 3 is about 175 miles long 
and spans 13 parishes. See also U.S. Exh. 4 (District 5 in 
1969-70 plan contained 17 parishes; District 5 in 1971- 
1972 plan contained 19 parishes; District 5 in 1973-1982 
plan contained 20 parishes). Because Louisiana is 
comparatively large and has 64 parishes, but only seven 
congressional districts, some of its districts will 
necessarily be long and contain numerous parishes. 
There is nothing bizarre or even unusual about that.

Judge Shaw next found that District 4 does not respect 
political subdivisions because it splits 12 parishes and 
four cities. J.S. App. 16a-17a. In Louisiana, however, 
parish and city lines have never been sacrosanct in 
congressional redistricting. The three plans used 
between 1971 and 1992 all divided seven parishes. U.S. 
Exhs. 4, 6; PX 5, J.S. App. 65a. The court’s own plan 
divided six. Congressional redistricting plans through­
out the twentieth century have split the city of New 
Orleans. The number of parishes and cities split by



26

District 4 does not constitute such an extraordinary 
departure from the State’s usual redistricting practices 
as to trigger strict scrutiny.

Chief Judge Shaw also found that the State’s plan did 
not follow the traditional principle of respect for 
commonality of interests because District 4 combines 
different ethnic, religious, and agricultural groups. J.S. 
App. 15a, 17a. Any plan with only seven districts in a 
State as diverse as Louisiana, however, must combine 
different groups in districts to some extent. As already 
noted. District 4 unites a large number of residents who 
share common economic and social interests. The 
State’s decision to give greater weight to the com­
monalities of interest reflected in District 4 than to the 
ethnic, religious, and agricultural factors favored by 
Judge Shaw does not show that District 4 is bizarre.

In sum, suspect treatment is reserved for truly 
bizarre districts that, on their face, evidence a single- 
minded pursuit of racial goals, with little or no 
consideration for other districting values. District 4 is 
not such a district. It reflects an acknowledged effort to 
create a majority-minority district, while simulta­
neously pursuing other traditional Louisiana districting 
values. It is therefore not suspect under Shaw.

II. THE STATE’S REDISTRICTING PLAN SATISFIES 
STRICT SCRUTINY

Even if the district court were right in subjecting the 
State’s plan to strict scrutiny, it erred in concluding 
that strict scrutiny was not satisfied. The State’s plan 
is narrowly tailored to further the State’s compelling 
interests in complying with the Voting Rights Act and 
ameliorating the effect that racial polarization has on 
the opportunity of minority voters to elect candidates of 
their choice.



27

A. The State Had Compelling Interests In Creating a 
Second Majority-Minority District

1. A State has a compelling interest in complying 
with Sections 2 and 5 of the Voting Rights Act. See 
Shaw, 113 S. Ct. at 2830. The district court did not 
suggest otherwise. Instead, it held that, for the State to 
invoke that compelling interest as a justification for its 
actions, there must be “findings of * * * statutory 
violations.” J.S. App. 7a. The district court therefore 
reviewed the evidence de novo to determine whether the 
State’s creation of District 4 was “compelled” by Section 
2 or Section 5. J.S. App. 7a, 9a. Based on the application 
of that standard, the court found that the creation of 
District 4 was not justified by the need to comply with 
Section 2 or Section 5. J.S. App. 7a-9a.

The district court’s approach is inconsistent with this 
Court’s precedents. To invoke the Voting Rights Act as 
a justification for its actions, the State was not required 
to prove that the Act ultimately required the drawing of 
a second majority-minority district. Rather, the State 
was required to show only that it had a “strong basis in 
evidence” for its actions—a standard that is satisfied if 
the State had a sound basis for believing that its failure 
to draw a second majority-minority district would have 
led to a prima facie case against it. City of Richmond v. 
J.A. Croson Co., 488 U.S. 469, 500 (1989); Wygant v. 
Jackson Bd. of Educ., 476 U.S. 267, 277 (1986) (plurality 
opinion); id. at 292-293 (O’Connor, J., concurring); 
Johnson v. Transportation Agency, 480 U.S. 616, 652-653 
(1987) (O’Connor, J., concurring in the judgment). That 
standard gives States a margin of safety that will 
encourage their voluntary compliance with the Voting 
Rights Act, while still insuring that States do not resort 
to race-based action casually or gratuitously. Johnson, 
480 U.S. at 652-653 (O’Connor, J., concurring in the



28

judgment); Wygant, 476 U.S. at 290-291 (O’Connor, J., 
concurring). The actual violation standard adopted by 
the district court imposes an unfair burden of omni­
science upon the States. Shaw v. Hunt, 861 F. Supp. 408, 
439-440 n.26 (E.D.N.C. 1994). Under the correct 
standard, Louisiana’s creation of a second majority- 
minority was justified by both Section 2 and Section 5.

a. In Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986), 
the Court established three preconditions for a Section 2 
vote dilution claim. Plaintiffs must show that (1) the 
minority population is sufficiently large and compact to 
constitute a majority in a single-member district, (2) the 
minority group is politically cohesive, and (3) whites 
usually vote sufficiently as a bloc to defeat the 
minority’s preferred candidate. In Johnson  v. 
DeGrandy, 114 S. Ct. 2647, 2658-2662 (1994), the Court 
further held that the extent to which the minority 
population has an opportunity to elect candidates in 
proportion to their percentage in the population is 
important evidence bearing on the ultimate issue 
whether a redistricting plan violates Section 2. 114 S. 
Ct. at 2664 (O’Connor, J., concurring) (“[A] court must 
always consider the relationship between the number of 
majority-minority voting districts and the minority 
group’s share of the population.”). In light of Gingles and 
DeGrandy, a State would clearly have a reasonable basis 
for creating a majority-minority district to comply with 
Section 2 when the State legitimately believes that each 
of the three Gingles preconditions could be established 
against it and when, without such a district, the 
minority group remains substantially underrepresented 
when compared to the group’s proportion of the



29

population. See Shaw v. Hunt, 861 F. Supp. at 440-441 
& n.28. ^

The State made that showing here. There is over­
whelming evidence that blacks are politically cohesive in 
Louisiana and that whites usually vote sufficiently as a 
bloc to defeat their preferred candidates. No black 
candidate has ever won election to Congress or the 
Louisiana legislature except from a district in which 
blacks have constituted a voting majority. In the five 
most recent primary and run-off elections in old District 
8, more than 87% of the blacks, on average, supported the 
black candidate, while less than 10% of the whites, on 
average, supported that candidate. SX 15. In addition, 
since blacks constitute 30% of the State’s population, 
creating only one majority-minority district out of seven 
(14%) would leave the minority population very 
substantially underrepresented when compared to that 
group’s share of the population.

That leaves only the question whether the minority 
population is sufficiently large and compact to constitute 
a majority in a district. The district court found that no 
compact district could be drawn because the minority 
population outside New Orleans is too dispersed. J.S. 
App. 8a & n.4. The Gingles compactness requirement, 
however, does not demand compactness in any absolute 
sense. Rather, the question in circumstances like those 
presented here is whether the proposed majority- 
minority district is reasonably compact in light of a 
State’s traditional districting practices. Jeffers v. 
Clinton, 730 F. Supp. at 207; Cane v. Worcester County,

1 In some circumstances, even when a S tate’s existing plan 
provides proportional representation, the State may need to create 
an additional majority-minority district in order to comply with 
section 2. See DeGrandy, 114 S. Ct. at 7658-7676.



30

35 F.3d at 926-927 n.6. As already noted, District 4 
(54% black) is similar in compactness to previous 
districts drawn by the State in the same geographic 
area. Gingles requires no more.^

Moreover, the question here is not whether plaintiffs 
bringing a Section 2 suit would necessarily have been 
successful in satisfying the compactness requirement, 
but whether the State could have legitimately believed 
that they would be. Given the similarity in compactness 
between District 4 and old District 8, the State acted 
reasonably in seeking to comply with Section 2.

b. The State also had a sound basis for concluding 
that the creation of a second majority-minority district 
was necessary to comply with Section 5. Section 5 
forbids a jurisdiction from implementing a redistricting 
plan unless it can show that the plan has neither a 
discriminatory purpose nor a discriminatory effect. 42 
U.S.C. 1973c. Thus, even when a redistricting plan is 
not retrogressive, a State cannot obtain preclearance 
unless it makes the further showing that the plan is free 
of discriminatory purpose. City of Pleasant Grove v. 
United States, 479 U.S. 462, 469, 471 & n.ll (1987); City 
of Port Arthurs. United States, 459 U.S. 159, 168 (1982); 
City of Richmond v. United States, 422 U.S. 358, 378-379 
(1975).

In this case, the State reasonably concluded that it 
would be unable to satisfy its burden under Section 5 to 
show that a redistricting plan with only one majority- 
minority district was free of discriminatory purpose.

2 According to the d is tr ic t court, the S ta te ’s expert 
“confirmed” that the minority population outside New Orleans was 
too dispersed to satisfy the compactness requirement. J.S. App. 8a 
n.4. In fact, however, the S tate’s expert testified that District 4 
was reasonably compact. J.A. 127.



31

The State could not ignore the fact that a three-judge 
court had found that the State’s 1982 redistricting plan 
diluted black voting strength. Major v. Treen, supra. 
The State also knew that Louisiana voting remained 
racially polarized to an extraordinary degree. SX 15. 
And the State had previously drawn majority-white 
districts similar in shape and location to District 4. 
Those facts reasonably led the State to conclude that it 
would have difficulty showing that a failure to draw a 
second majority-minority district similar to District 4 
was based on legitimate redistricting considerations 
rather than an intent to dilute the black vote.

The State could also take into account the fact that the 
Attorney General had already objected to its re­
districting plan for the statewide Board of Elementary 
and Secondary Education (B.E.S.E.), a plan that had 
included only one majority-minority district out of eight. 
The Attorney General’s objection letter stated that the 
State’s B.E.S.E. plan had fragmented minority con­
centrations among three majority white districts, that 
this fragmentation had not been justified in terms of 
neutral districting principles, and that the application of 
such neutral principles would have resulted in two 
majority-minority districts. See DX 16 (1993 Hearing).

The district court apparently believed that the State 
could not rely on the existence of the Attorney General’s 
objection to its B.E.S.E. plan, but was required to show 
that the objection was a legally valid one. J.S. App. 7a & 
n.3. That approach was incorrect. Congress has 
delegated to the Attorney General primary responsi­
bility for evaluating whether state redistricting 
schemes in jurisdictions covered by Section 5 violate the 
voting rights of racial minorities. A State always has 
the option to seek preclearance in the District Court for 
the District of Columbia if the Attorney General



32

determines that the State’s plan is discriminatory. But 
Congress clearly contemplated that the States would not 
always have to take that step before revising their plans 
to accommodate the Attorney General’s objection. The 
whole point of permitting the States to seek 
administrative preclearance was to provide an 
expeditious alternative to district court preclearance 
actions. McCain v. Lybrand, 465 U.S. 236, 246-247 
(1984). That benefit would be lost if the States could not 
generally rely on the Attorney General’s “adminis­
trative finding” of discrimination. Regents of the Univ. 
of Calif. V. Bakke, 438 U.S. 265, 305 (1978) (opinion of 
Powell, J.) (Section 5 objection by the Attorney General 
is sufficient to give a state a compelling interest in 
taking race-based remedial action).

Moreover, Congress determined that substantive 
Section 5 determinations would be made by either the 
Attorney General or the District Court for the District 
of Columbia. McCain v. Lybrand, 465 U.S. at 246-247. 
Congress assigned local federal courts a limited 
procedural role in the Section 5 enforcement scheme—to 
enjoin voting changes that have not been precleared. 
Allen V. State Board of Elections, 393 U.S. 544, 558-560 
(1969). As the Court explained in Perkins v. Mathews, 
400 U.S. 379, 385 (1971), “What is foreclosed to such 
district court is what Congress expressly reserved for 
consideration by the District Court for the District of 
Columbia or the Attorney General—the determination 
whether a covered change does or does not have the 
purpose or effect ‘of denying or abridging the right to 
vote on account of race or color.’” The effect of the 
district court’s approach in this case is to transfer 
substantive Section 5 review from the Attorney General 
and the District Court for the District of Columbia to



33

local federal district courts in contravention of 
Congress’s intent.

Because a State has its own responsibilities under the 
Equal Protection Clause, it may not defer entirely to the 
Attorney General’s Section 5 analysis. Given the 
Attorney General’s important role in the Section 5 
statutory scheme, however, a State should be able to act 
on the assumption that the Attorney General has 
correctly objected to its plan, unless the objection is 
clearly insupportable. Shaw v. Hunt, 861 F. Supp. at 
443 & n.34; see UJO, 430 U.S. at 175 (Brennan, J., 
concurring in part) (the Attorney General’s judgment 
that a particular districting scheme complies with the 
remedial objectives of the Voting Rights Act is entitled 
to “considerable deference”); cf. Presley v. Etowah  
County Common, 112 S. Ct. 820, 831 (1992) (a court must 
defer to the Attorney General’s construction of Section 
5, unless Congress has clearly expressed a contrary 
intent or the Attorney General’s construction is 
unreasonable).

In this case, appellees have identified no such short­
coming in the Attorney General’s B.E.S.E. objection. 
That objection, together with the evidence discussed 
above, reasonably led the State to conclude that its 
failure to create a second majority-minority district 
would be found to violate Section 5.

2. Independent of its obligations under the Voting 
Rights Act, the State also had a compelling interest in 
ameliorating the effect that racially polarized voting has 
on the opportunity for minority voters in Louisiana to 
elect the candidates of their choice. In UJO, Justices 
White, Rehnquist and Stevens stated that a State is not 
“powerless to minimize the consequences of racial 
discrimination by voters when it is regularly practiced 
at the polls.” 430 U.S. at 167. Where such discrimina-



34

tion exists, a State may seek to achieve a “fair allocation 
of political power between white and nonwhite voters.” 
Ibid. No other Justices in UJO addressed that issue. 
The analysis of the three Justices, however, is fully 
consistent with this Court’s decision in Croson, which 
recognized that a State has a compelling interest in 
remedying identified discrimination within its 
jurisdiction, even when it has no federal statutory duty 
to do so. 488 U.S. at 491-493, 509. The approach of the 
three Justices in UJ0  should therefore be followed here.

Applying that analysis leads to the conclusion that 
polarized voting in Louisiana gives the State a 
compelling interest in creating a second majority- 
minority district. As we have noted, racially polarized 
voting in Louisiana is persistent and extreme. Based on 
the evidence before it, the State had every reason to 
believe that unless it created an additional district in 
which blacks constituted a majority, bloc voting by 
whites would preclude minority voters from having any 
realistic chance to elect a second representative of their 
choice and would leave them substantially under­
represented compared to their percentage of the 
population. In those circumstances, the State had a 
compelling interest in creating a second majority- 
minority district in order to achieve a fair allocation of 
political power between white and nonwhite voters.

B. The State’s Plan Is Narrowly Tailored To Further Its 
Compelling Interests

The district court’s opinion does not address the issue 
of narrow tailoring. District 4, however, easily satisfies 
narrow tailoring standards.

Relying on United States v. Paradise, 480 U.S. 149, 
171 (1987) (plurality opinion), courts have focused on 
three narrow tailoring requirements in the redistricting



35

context. First, a State may not create more majority- 
minority districts than either the Voting Rights Act or 
the State’s interest in fairly allocating political power 
justify. Shaw v. Hunt, 861 F. Supp. at 446; J.S. App. 82a. 
Second, a State may not needlessly pack substantially 
more minority voters into a district than are reasonably 
necessary to give the minority group an opportunity to 
elect the candidate of its choice. Ibid. And third, a State 
may not create an extremely irregular district when a 
far more regular district would be equally effective in 
serving the State’s compelling interest and the creation 
of the more compact district would not compromise the 
State’s other legitimate redistricting interests.® J.S . 
App. 84a-87a.

The State’s plan in this case does not run afoul of any 
of those requirements. The plan creates the number of 
majority-minority districts justified by the State’s 
interests in complying with the Voting Rights Act and 
fairly allocating political power. Nor does thq plan 
needlessly pack minority voters into District 4. Blacks 
constitute 55% of the registered voters in the district, 
very close to the minimum percentage necessary to 
provide minority voters with an opportunity to elect a 
candidate of their choice. J.S. App. 83a-84a. And for the 
reasons already discussed, the location and shape of 
District 4 is fully consistent with the State’s traditional 
districting practices.^

® As explained in our jurisdictional statem ent (at 11-14) in 
United States v. Vera, No. 94-988, the narrow tailoring principle 
does not require a S tate to draw the most compact district 
possible. A State may legitimately give priority to redistricting 
interests other than compactness, such as protecting incumbents.

The State contends that the district court erred in imposing a 
perm anent redistricting plan, without first giving the S tate a 
chance to propose a remedial plan. We agree. The court justified



36

CONCLUSION
The district court’s judgment should be reversed. 
Respectfully submitted.

Drew S. Days, III 
Solicitor General

Deval L. Patrick 
Assistant Attorney General

Paul Bender 
Deputy Solicitor General

Irving L. Gornstein 
Assistant to the Solicitor General

Jessica Dunsay Silver 
Mark L. Gross 

Attorneys

January 1995

its decision to adopt its own plan on the ground that prompt action 
was needed and the State had already failed to adopt a consti­
tutionally acceptable plan twice. J.S. App. 10a. Those factors 
might well have justified the court’s decision to impose an interim 
plan for the upcoming elections. There was no justification, 
however, for the court’s decision to impose a p e rm a n e n t  plan 
without first affording the State a chance to propose its own plan. 
Wise V. Lipscomb, 437 U.S. 535, 539 (1978).



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