Reno v. Bossier Parish School Board Brief of Appellee on Reargument

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N os. 98*405, 98-406

In The

Supreme Court of the United States
------------------♦---------------

JANET RENO, ATTORNEY GENERAL 
OF THE UNITED STATES,

Appellant, and
GEORGE PRICE, el a!.,

Appellants,
v.

BOSSIER PARISH SCHOOL BOARD,
Appellee.

---------------- ♦ ----------------

On Appeal From The United States District Court 
For The District Of Columbia

---------------- ♦----------------

BRIEF OF APPELLEE ON REARGUMENT
--------------- «---------------

M ichael E. Rosman 
H ans F. Bader
C enter fcr Individual Rights 
1300 19th Street, N.W.
Washington, D.C. 20036 
(202) 833-8400

*Counsel of Record

M ichael A. C arvin* 
D avid H. T hompson 
C raig S. Leaner 
C ooper, Carvtn & 

Rosenthal, PLLC 
1500 K Street, N.W. 
Suite 200
Washington, D.C. 20005 
(202) 220-9600

C X XLl LAW H 2 F  HUNTING CO. (MX* US4HA 
OR CALL COLLECT (40) MM1M

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This brief is submitted pursuant to the Court’s order of 
June 24, 1999. and addresses only those issues identified in 
the order without repeating the content of appellee’s initial 
brief, which is hereby incorporated by reference.

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TABLE OF CONTENTS
Page

SUMMARY OF ARGUMENT..........................................  i

L SECTION 5’S STRUCTURE. PURPOSE. AND LAN­
GUAGE DEMONSTRATE THAT IT DOES NOT
REACH NONRETROGRESSJVE PURPOSE................ 3

II. THE UNITED STATES BEARS THE BURDEN OF 
PROVING THAT A COVERED JURISDICTION 
HAS A NONRETROGRESSIVE DISCRIMINA­
TORY PURPOSE.........................................................  21

iii

s
a!

TABLE OF AUTHORITIES
Page

C ases

Alden v. Maine, No. 98-436, 1999 U.S. LEXIS 4374 N
(U.S. June 23. 1999).........................................................  17 cn

Allen v. State Bd. o f Elections, 393 U.S. 544 (1969)----  15

Beer v. United States, 425 U.S. 130 (1976)..............passim

Brogan v. United States, 522 U.S. 398 (1998)................. !2

Busbee *. Smith, 549 F. Supp. 494 (D.D.C. 1982), • 
aff'd, 459 U.S. 1 166 (1983)............................................ 21

Bush v. Vera, 517 U.S. 952 (1996).................  7. 12, 13, 16

City of Lockhart v. United Stares, 460 U.S. 125 (1983). .passim

City o f Pleasant Grove v. United States, 479 U.S. 462
(1987) ............................................... ......................... 13, 20

City o f Richmond v. United Stales, 422 U.S. 358 
(1975)...............................................................10, 11, 12

Edward J. DeBartolo Corp. v. Florida Gulf Coast 
Bldg. &. Constr. Trades Council, 485 U.S. 568
(1988) ................................................................................ 25

Fireman's Fund Ins. Co. v. Videfreeie Corp., 540 F.2d 
1171 (3d Cir. 1976), cert denied. 429 U.S. 1053 
(1977).................................................................................. 23

Gomillion v. Lightfoot, 364 U.S. 339 (1960)............. 12, 13

Gregory v. Ashcroft, 501 U.S. 452 (1991).........................  17

Holder v. Hail, 512 U.S. 874 (1994)................................  17

Illinois State Bd. of Elections v. Socialist Workers
Party, 440 U.S. 173 (1979)...........................................  21

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TABLE OF AUTHORITIES -  Continued
Page

LeBlanc v. United Slates, 50 F.3d 1025 (Fed. Cir.
1995)............................................................... 15

Lopez v. Monterey County, 119 S. Ct. 693 (1999)......... 16

Mandel v. Bradley, 432 U S. 173 (1977)..........................  21
Milter v. Johnson, 515 US 900 (1995) . ..8 . 9. 13. 17. 25
Reno v. Bossier Parish Sch. Bd., 520 U.S. 471 (1997) . .passim

Shaw v. Hunt, 517 U.S 899 (1996).................................. 13

Shaw v. Reno, 509 U.S. 630 (1993)............................ 15, 16
South Carolina v. Katzenbach, 383 U.S. 301 (1966) 

....................................................................................7, 15, 24

Thornburg v. Gingles, 478 U.S. 30 (1986).......................11
White v. Regester, 412 U.S 755 (1973)...................passim

Will v. Michigan Dep'i of State Police, 491 U.S. 58
(1989)................................................................................. 17

C onstitution, S tatutes and R ules

U.S. Const, amend XV.................................................passim

42 U.S.C. |  1973b....................................................................7
42 U.S.C. |  1973c............................................................3, 12

42 U S.C. 5 1973H....................................................................7

L egislative M aterials

H R. Rep No. 91-397 (1970)............................................... 8

H.R. Rep. No. 94-196 (1975)...............................................8

S. Rep. No 94-295 (1975).......................................................8

S. Rep. No. 417 (19S2)........................................... 9. 11. 19

1

SUMMARY OF ARGUMENT
Section 5 and the Fifteenth Amendment are similar in that 

both prohibit procedures which purposefully abridge the right 
to vote on account of race. But abridgment, like dilution, is 
necessarily i  relative term. To know whether one’s vote (or 
group voting power) has been abridged, one needs to know 
what an unabridged vote would be.

In Fifteenth (or Fourteenth) Amendment cases, the pro­
cedure allegedly “abridging” minority votes is the existing 
system being challenged. Thus, abridgment is measured by 
comparing the existing system to an identified, available alter­
native that enhances minority voting strength. If there is no 
alternative that enhances minority voting power, the' Court 
cannot remedy the alleged abridgment by replacing the status 
quo with the enhancing alternative.

In a Section 5 proceeding, however, the voting procedure 
allegedly abridging miaority voting rights is not the status quo, 
but proposed, discrete changes to the status quo, and the 
remedy is to deny the proposed change from taking effect. 
Thus, abridgment is measured by a comparison of the existing 
system before it was changed to the system after the change 
takes effect. If the changed voting system does not abridge 
minority voting power compared to the status quo, the court 
cannot remedy the alleged abridgment. Section 5 cannot 
require the covered jurisdiction to adopt a maximizing alterna­
tive, but can only prevent the proposed change from taking 
effect. Accordingly, it would be purposeless or counterproduc­
tive to deny proposed voting chsnges equivalent to or better 
than the existing system, on the grounds that they do not go far 
enough in improving the existing system, since such a denial 
will simply restore the status quo ante.

The Court has always recognized this inherent limitation 
in Section 5 and. consequently, that abridgment under Section 
5 is fundamentally different from the abridgment prohibited by 
the Fifteenth Amendment. The Court has repeatedly held that, 
while a government abridges voting rights inder the Constitu­
tion if it intentionally provides less voting power than the 
available alternative, it abridges voting rights under Section 5

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only if it provides less voting power than the existing system, 
regardless of whether it abridges voting power compared to the 
optimal alternative. The cases establishing this principle have 
directly involved the issue of whether the voting change actu­
ally abridged minority voting power -  i.e., had the “effect” of 
abridging -  rather than whether the covered jurisdiction’s pur­
pose was to abridge minority power. But this is truly a distinc­
tion without a difference The covered jurisdiction can have a 
"purpose” to abridge only if it is attempting to actually 
abridge, i.e., if its intent is to reduce votiog power relative to 
the status quo.

Nor is there any policy reason to stretch Section 5 to reach 
nonretrogressive changes motivated by a discriminatory pur­
pose. Federal district courts can adjudicate these “discrimina­
tory purpose" issues more even-handcdly than a Justice 
Department devoted to a minority maximization policy, just as 
they expeditiously adjudicate redistricting litigation in every 
state not covered by Section 5. A redistricting plan in 2000 
moreover, will have a proscribed retrogressive effect if it fails 
to maintain the same number of majority-minority districts that 
were created in the 1990s, when the Justice Department insis­
ted upon Section 2 compliance and minority maximization. 
Accordingly, the "discriminatory purpose" standard will sup­
plement the “nonretrogression” standard only ia the extremely 
rare circumstances where the covered jurisdiction fails to add 
yet another majority-minority district to those created in the 
1990s. If the Section 5 court refrains from adjudicating that 
rare discriminatory purpose issue, this does not suggest any 
"endorsement" of the alleged Fifteenth Amendment violation 
Rather, it suggests only that the parties are seeking to adjudi­
cate that constitutional issue in the wrong court, for it should 
be adjudicated, as the text of Section 5 itself contemplates, in 
the same district courts that adjudicate every other constitu­
tional issue. Allowing adjudication of such constitutional 
issues in district courts would not alter the evidentiary stan­
dards for resolving those questions because, as the United 
States has already conceded in Reno v. Bossier Parish Sch. Bd., 
520 U S. 471 (1997) (“Bossier O ,  it has the burden to prove 
unconstitutional purpose in a Section 5 court, just as it would

3

in “any [constitutional] challenge” in district court. Bossier l, 
App. 69a (Stevens. J.. dissenting in part and concurring in 
part).1 Conversely, requiring a covered jurisdiction to. In 
essence, sue itself under the Constitution and disprove the 
validity of hypothetical alternatives invented by Justice 
Department lawyers would constitute a severe, constitutionally 
problematic, transfer of sovereign power from state govern­
ments to the federal bureaucracy.

ARGUMENT

I. SECTION 5’S STRUCTURE, PURPOSE, AND LAN­
GUAGE DEMONSTRATE THAT IT DOES NOT 
REACH NONRETROGRESSIVE PURPOSE. -

It is common ground that Section 5 prohibits selecting a 
lew voting procedure for the purpose of reducing existing 
minority voting power. In such cases, voting power under the 
proposed change is intentionally "abridg[ed]” relative to the 
existing system. 42 U.S.C. § 1973c. In appellee’s view, this 
standard differs from the Fifteenth Amendment’s prohibition in 
one respect. The Fifteenth Amendment also prohibits selection 
of a voting procedure for the purpose of redwing minority 
voting rights compared to that which woald be available under 
a hypothetical, proposed alternative. Ia such cases, voting 
rights have been “abridg[ed|” under the Fifteenth Amendment 
because of the failure to enhance minority strength to the level 
that would have existed absent racial considerations. Thus, 
while perpetuation of a discriminatory status quo for racial 
reasons violates the Constitution's prohibition of a racially 
discriminatory purpose, it does not violate Section 5’s prohibi­
tion against a racially retrogressive purpose.

The sum total of appellants’ contrary argument is that a 
voting change which intentionally perpetuates a discriminatory 
status quo necessarily constitutes at impermissible “purpose" *

' In the brief, citations are to the Appendix (“App ’) filed with the 
jurisdictional statements in this appeal, to the United States’ brief (“U S. 
Br.”), to the United States' and appellant-intervcnors’ reply briefs (“U S. 
Reply Br."). ("A-I Reply B r”), and to the appellee’s brief ("Initial Br.“).

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lo *abridg[el” under Section 5 because it violates the Fifteenth 
Amendment's prohibition of purposeful abridgment. ll.S. Br. at 
19-20. Although that position has a certain superficial appeal 
as a policy matter, the notion that Section 5 prohibits deliberate 
perpetuation of the status quo is fundamentally at odds with the 
limited structure, remedial scope and historical purpose of this 
unique statute, as this Court has repeatedly emphasized in a 
series of cases holding that the “purpose of § 5 was to prohibit 
only retrogressive changes.” City o f Lockhart v. United Stales, 
460 U S. 125, 134 n. 10(1983) (emphasis added). See Initial Br. 
at 17 n.13.

Specifically, appellants’ attempt to analogize the abridg­
ment prohibited by Section 5 to that prohibited by the Fifteenth 
Amendment ignores the fundamental difference between the 
purpose and scope of the two provisions. The Fifteenth 
Amendment is designed to displace an existing status quo 
because it is discriminatory, and thus abridgment is obviously 
not measured by reference lo the status quo being attacked, but 
necessarily by reference lo a hypothetical, alternative improve­
ment that was rejected for racial reasons. By its very structure, 
however. Section 5 is necessarily designed to prohibit dilutive 
changes to the status quo, and thus abridgment is necessarily 
measured by reference to the status quo before it was changed. 
As this Court has already noted in Bossier I, appellants’ 
procrustean effort to transport the abridgment concepts from 
litigation involving attacks on the status quo lo the Section 5 
context is impermissible because it incorrectly “shift[s] the 
focus of § 5 from nonrelrogression to vote dilution, 
and . . . change(s) the § 5 benchmark from a jurisdiction's 
existing plan to a hypothetical, undiluted plan.’’ App. 37a-38a. 
Acceptance of appellants' view of Section 5 would render 
Bossier I and Beer v United States, 425 U.S. 130 (1975), 
practical nullities -  their limitation of “effect” to retrogression 
would be effectively swallowed by appellants’ free-floating 
"purpose” inquiry.

First, and most obviously, Section 5 is simply incapable of 
remedying or otherwise invalidating a nonretrogressive, pur­
posefully discriminatory change in voting. Section 5 “applies 
only to proposed changes' to the status quo, and its only

4

remedy is to deny the proposed change, thus restoring the 
status quo ante Beer, 425 U.S. at 138 (emphasis added). 
Accordingly, in fundamental contrast lo the Fifteenth Amend­
ment, it is simply not designed or suited to prohibit or remedy 
voting changes which perpetuate (or ameliorate) the status 
quo, even if that states quo is itself discriminatory. To repeat 
the illustrative example used at oral argument, if a polling 
place is currently six blocks from a minority neighborhood 
and a covered jurisdiction proposes to move it five blocks 
from that neighborhood, but rejects a better alternative site 
four blocks away for purely racial reasons. Section 5 simply 
cannot remedy this nonretrogressive, purposefully discrimina­
tory change. Rather, it can only deny the proposal to move the 
polling place five blocks from minority voters, thus returning 
the polling place to its originally inaccestible six block loca­
tion. The same would be true of other proposed changes in 
voting procedures which affect the weighl or casting of one’s 
vote, such as switching from an at-large to a single-member 
scheme. In all such circumstances, as the Court recognized in 
Beer, pny ameliorative change, even if not the optimal 
improvement, must pass Section 5 muster because denial of 
an ameliorative change has the perverse result of putting 
minorities in a worse position than they would be in if 
preclearance were granted. Beer, 425 U.S. at 141. As the 
Court confirmed in Lockhart, denying preclearance to a 
change which maintains, rather than enhances, the status quo 
is similarly purposeless since it does not in any way benefit 
minority voters and simply restores the allegedly discrimina­
tory status quo. Lockhart, 460 U.S. at 134-35 & n.10.

Thus, because of this fundamental limitation inherent in 
Section 5 -  it deals only with changej to the status quo and its 
only remedy is to restore the status quo ante -  it cannot 
improve or eradicate a discriminatory status quo. That being 
so. it simply makes no sense to interpret Section 5 to invali­
date the deliberate perpetuation (or less-ihan-complete ame­
lioration) of the existing system. If the status quo is 
discriminatory, il accomplishes nothing to restore it by deny­
ing the change and, if the status quo is not discriminatory, any

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perpetuation (or improvement) of that nondiscriminatory reg­
ime is also nondiscriminatory. If the underlying electoral 
system is itself infected with racially discriminatory animus, 
this underlying defect must be cured by a legal challenge to 
that status quo -  i.e., a Section 2 or Fifteenth Amendment 
challenge. Soch fundamental alteration to the status quo can­
not be accomplished by a statute that deals only with changes 
to parts of the existing system. This is particularly true since 
the unconstitutional vote dilution inquiry requires evaluation 
of the entire electoral and political process system, which is 
impossible to do when one is examining a discrete change to 
that underlying system. See White v. Regester, 412 U.S. 755, 
766 (1973).

In short, the Fifteenth Amendment is designed to eradi­
cate a discriminatory status quo while Section 5 is a purely 
reactive statute that cannot even consider an unchanged status 
quo or require adoption of enhancing alternatives. For this 
reason, the Fifteenth Amendment prohibits racially-motivated 
rejection of alternatives which enhance minority voting power 
above the status quo, but Section 5 does not. In other words, 
the “abridgment” proscribed by Section 5 is narrower than the 
“abridgment” proscribed by the Fifteenth Amendment for the 
same reason that the dilutive “effect” prohibited by Section 5 
is narrower than the dilutive “result” prohibited by Section 2, 
even though “effect” and “result" are synonyms. The function 
of Section 2, like the Fifteenth Amendment, is to affirma­
tively uproot a discriminatory status quo and therefore neces­
sarily measures vote abridgment and dilution in relation to an 
improvement to that status quo. But since Section 5 is 
intended to prohibit discriminatory changes to the status quo, 
it measures vote abridgment and dilution in relation to the 
existing system See Beer, 425 U.S. at 141 (A nonretrogres- 
sive change “can hardly have the ‘effect’ of diluting or 
abridging the right to vote on account of race within the 
meaning of § 5.”) (emphasis added).

Thus, in light of the fundamentally “different evils" at 
which they are addressed, and the fundamentally different 
scope of their remedial procedures, Section 5 is not and 
cannot be coextensive with the Constitution. Bossier I, App

7

co©

33a. Section 5 goes farther than the Constitution in prohibit­
ing any regression from the status quo, while it does not go as 
far as the Constitution in prohibiting a failure to improve the 
status quo. Section 5 prohibits any act which has the “effect” 
of reducing extant minority voting rights, even if the reason 
for such reduction is entirely legitimate, while the Constitu­
tion will prohibit such a retrenchment only if it is motivated^ 
by an invidious purpose. Similarly, Section 5 covers only 
changes to the status quo in certain jurisdictions, while the 
Constitution reaches the unchanged status quo in all states. In 
addition, under either interpretation of Section 5's purpose 
prong, it goes farther than the Fifteenth Amendment because 
it puts the burden of proof on the covered jurisdiction and 
because it unequivocally reaches vote dilution mechanisms 
such as redislricting plans, while the Fifteenth Amendment 
was thought in 1982 to reach only direct restrictions on access 
to the ballot Initial Br. at 26-27. Accordiagly, it is clear that 
the Fifteenth Amendment and Section 5 cannot be coter­
minous and that an interpretation of Section 5 which reaches 
only retrogressive changes nonetheless goes as far as -  
indeed,'farther than -  the Fifteenth Amendment.

In addition, it is clear that the original purpose and 
understanding of Section 5. within the broad framework of 
the Voting Rights Act, was to prevent “backsliding" from the 
improvements to the discriminatory status quo that would be 
caused by the Act’s other provisions. Congress recognized 
that Section 5 was inherently unequipped to affirmatively 
improve the existing electoral system. That task was to be 
accomplished by the suspension of poll taxes, discriminatory 
“tests and devices” and Section 2 lawsuits to eliminate other 
dilutive measures. 42 U.S.C. §§ 1973b, 1973h. In contrast. 
Section 5’s “limited substantive goal” was simply ensuring 
that the fragile gains created by the ban on tests -  “the 
principal method used to bar Negroes from the polls" -  would 
not be undone by retrogressive changes in other voting pro­
cedures. Bush v. Vera, 517 U.S. 952, 982 (1996); South 
Carolina v. Katienbach, 383 U.S. 301, 310 (1966). As the 
Court noted in South Carolina, other voting procedures, 
besides tests and devices, could be modified by recalcitrant

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southern jurisdictions to disenfranchise the black voters 
recently enfranchised through the “tests and devices’* ban, 
thus “perpetuating” the very discriminatory system that the 
ban was designed to eradicate. Id. at 335. Thus, even though 
voting procedures other than tests and devices had not been 
found to be discriminatory by Congress (and often were not 
since they were designed for an electorate that had already 
excluded black voters through the tests and devices), covered 
jurisdictions could nonetheless be forced to preclear them 
since they could potentially be modified to accomplish the 
disenfranchisement previously done through literary tests and 
the like. As the Court put it, new voting rules could be 
devised “to evade the remedies for voting discrimination 
contained in the Act itself,” i.e., the ban on discriminatory 
tests and devices. Id. This in no way suggests, as the United 
Stales would have it, that maintenance of votmg procedures 
other than the banned tests and devices would offend Section 
5, since such maintenance could not "undo” or “defeat" the 
minor fragile gains caused by the Voting Rights Act and 
since, as noted. Section 5 could neither address nor remedy 
racially-motivated maintenance of the status quo. Beer, 425 
U S. at 140-41 (quoting H R. Rep. No. 91-397, at 8 (1970); 
S Rep. No 94-295. at 19 (1975)).

Thai is why the Court hai repeatedly emphasized that 
Section 5 is designed solely to “freeze election procedures.”2 
Although such freezing cannot, by definition, improve an 
existing sitnation, it did preveat southern jurisdictions from 
imposing regressive changes that accomplished the same dis­
crimination that had previously been accomplished by those 
devices prohibited by other parts of the Act. Consequently, 
the “porpose of § 5 has always been to ensure lhal no voting- 
procedure changes would be made that would lead to a retro­
gression in the position of racial minorities” from the status 
quo, but not to invalidate changes on the ground that they

8

1 Beer, 425 U S. ai 140 (quoting H R. Rep. No. 94-195. at 57-58 
(1975)); Milter v. Johnson, 515 U S 900, 925-27 (1995); Bossier t, App. 
35a.

failed to enhance the status quo for racial reasons. Beer, 425 
U S. at 141.J

Accordingly, the Court has repeatedly held that, under 
Section 5, “abridge" means “retrogress,” ie., a voting change 
does not abridge the right to vote unless it renders minority 
voting more difficult or less valuable than it was previously. £  
Initial Br. at 16-18. Thus, in Lockhart, tie Court held that a 1 *̂ 
jurisdiction's proposal to use at-large and numbered post-sys­
tems -  two often-used dilutive devices -  was "entitled to § 5 
pre-clearance” “fsjince the new plan did not increase the 
degree of discrimination against blacks.” 460 U.S. at 134. This 
was so even though the "new plan may have remained discrim­
inatory.” and **[rn)inorities are in the same position every year 
that they used to be in every other year.” Id. at 134, 135.

Thus, Lockhart held that perpetuation of the potentially 
discriminatory status quo did not “have the effect of denying or 
abridging the right to vote on account of race. . . . ” Id. at 136. 
Since a voting change cannot have the effect of abridging 
voting rights unless it causes retrogression, it inexorably fol­
lows that it cannot have the purpose of abridging voting rights 
unless it is intended to cause that retrogression.4 Appellants are

J See also Lockhart, 460 U.S. at 134 n.10 (“lT]he purpose of § 5 was 
to prohibit only retrogressive changes.”); Beer, 425 U.S. at 143 (White, J., 
dissenting) (“I cannot agree [with the Court) that $ 5 . . .  readier only those 
changes in election procedures that are more burdensome to the 
complaining minority than pre -existing procedures”); City of Richmond v. 
United States, 422 U.S. 358. 388 (1975) (Brennan, J.. dissenting) (“The 
fundamental objective of f 5 (is) the protection of present levels of voting 
effectiveness of the black population.”) (emphasis in original); Miller, 515 
U.S. at 926.

* The Justice Department's coulrary conclusion in its Section 5 
guidelines is entitled to no deference for the same reason that Bossier I 
gave no deference to the Department’s position that preclearaace may be 
denied for a Section 2 violation. The Department'! Section 2 argument in 
Bossier l was premised on an interpretation of Section 5’s language that
was reasonable if one ignored Section 5’s limited structure and purpose 
(ie.. Section 5’s "effect” is analogous to Section 2’s "result"), and the 
argument was expressly sepported by S. Rep. No.417, at 12 n.3l (1982),

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utterly unable to offer any explanation of how the word 
“abridge" dramatically shifts meaning within the same sen­
tence, depending on whelher it modifies “purpose or 
“effect."5 Thus, their interpretation of Section 5 is facially 
invalid because it is contrary to the plain statutory language 
and the Court’s consistent interpretation of that language. Ini­
tial Br. at 16-18.

Appellants nevertheless argue that construing “abridge" to 
mean retrogression when modifying purpose, as it does when 
modifying effect, would impermissibly render Section 5’s “pur­
pose” prong “almost superfluous." U.S. Reply Br. at 8-9. This 
is neither true nor an argument in favor of construing Section 5 
to teach nonretrogressive changes. In the first place, under the 
retrogressive purpose standard, Section 5’t “purpose prong 
would independently invalidate changes that are permitted 
under the retrogressive “effect” standard in the important 
annexation context. Under City of Richmond v. United States, 
422 U.S. 358 (1975), an annexation which reduces the previous

10

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as well as. by the alleged policy against granting prectearance to voting 
procedures that unlawfully diluted minority voting strength under the 
White v. Register standard U.S. Br. ia Bossier /, at 33-37. The Court 
nevertheless refused to grant deference to the Attorney General's 
guidelines because that interpretation of Section 5 (illhough reasonable in 
isolation) was inconsistent with the logic of the Beer retrogression 
principle and impermissibly shifted Section 5’s focus from the limited 
retrogression issue to the broader question of whether a change unlawfully 
dilates minority voting strength compared to a hypothetical alternative. 
Bolster I, App. 37a-38a. Here, the argument that "abridge* does not mean 
retrogression when it modifies "purpose* is even mote directly at odds with 
the Beer retrogression principle and would also impermissibly expand the 
Section 5 inqatry to focus on abridgment relative to a hypothetical 
alternative, rather than to the existing system. See also Initial Br. at 31 n.24.

* The private appellaats, although not the (Jailed States, note that 
“purpose* in Section 5 is phrased in the present tense, while “effect" is 
purportedly phased in the future tense. A-I Reply Bi at 2. Understandably, 
after making that interesting linguistic observation, appellants make no 
attempt to explain how this “distiBction* in any way affects or undermines 
the conclusion that because "abridge” means retrogression in modifying 
"effect,” it must also mean retrogression in modifying "purpose.”

black voting population, and thus has a retrogressive effect, is 
nevertheless permissible under Section 5 unless the purpose of 
the annexation is to cause such retrogression, rather than to 
further a legitimate goal. 422 U.S. at 375-78. Accordingly, a 
voting annexation which satisfies Section 5’s "effect” prong 
would nevertheless violate the statute’s “purpose” prong, thus x. 
establishing that a retrogressive purpose standard would have $  
significance distinct from the prohibition on retrogressive 
effect.

More fundamentally, however, it is hardly surprising or 
anomalous that a statutory prohibition against an illicit purpose 
fails to significantly expand a corresponding prohibition 
against an impermissible effect This is true of every civil 
rights law which reaches both purpose and effect -  such as 
Section 2 and Title YII -  and is inherent in the fact that a 
prohibition against effect is almost inevitably broader than a 
proscription against an intent to accomplish that effect. Most 
obviously. Section 2 prohibits both an uiintentional dilutive 
effect (“result”) and a purposeful dilutive effect. Thornburg v. 
Gingles, 478 U.S. 30,43-44 (1986). That being so, Section 2’s 
prohibition against a dilutive purpose is largely unnecessary 
and, indeed, only applies to the rare defendant who incompe­
tently attempts to dilute minority voting sfrength but does not 
accomplish it. This simply reflects the fact that, as everyone in 
Congress understood in 1982, purpose follows effect and a 
prohibition against an impermissible effect is broader than a 
prohibition against purpose. S. Rep. No. 417, at 15-39 (1982). 
interpreting Section 2 to prohibit both a discriminatory purpose 
and effect is therefore fully consistent with the statutory con­
struction principle of avoiding unnecessary redundance if rea­
sonable. fn contrast, it is appellants who seek the anomalous 
rule -  contrary to English usage, Section 2 and Title VII -  that g  
purpose is broader than, and does not follow, effect. Ft altrib- R 
utes to Congress the schizophrenic policy of affirmatively 
deciding to grant preclearance to voting changes that actually 
perpetuate tbe status quo, even if the system “remains discrim­
inatory,” but simultaneously requiring denial of preclearance 
simply because tbe covered jurisdiction intended precisely that 
effect. Since it must be presumed that the federal legislature is -3

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minimally rational, however, it is clear that because Congress 
did not perceive the perpetuation of even a discriminatory 
status quo as an evil result forbidden by Section 5, it could not 
logically have perceived an intent to perpetuate the status quo 
as an evil purpose forbidden by Section 5. If the result is 
legitimate, it is difficult to understand why it becomes illegiti­
mate simply because it is intended.

I. Although appellants cannot reconcile their interpreta­
tion with the plain language, “limited substantive goal.” reme­
dial structure or historical genesis of Section 3. they 
nevertheless insist that Section 5 simply must be so interpreted 
to avoid the unthinkable policy result of having the Attorney 
General place her stamp of approval on votiig changes adopted 
for racial, and therefore unconstitutional, motives. Bush, 517 
U.S. at 982; U.S. Br. at 20; U.S. Reply Br at 4. Even if this 
Court were free to rewrite statutes to implement policy goals 
different from those that Congress embodied in the statute, 
appellants* “parade of horribles" has absolutely no relevance in 
the 1990s and thus their desired judicial revision of Section 5 
is unsupported by even a coherent policy argument But see 
Brogan v. United States, 522 U.S. 398, 408 (1998) (“Courts 
may not create their own limitations on legislation, no matter 
how alluring the policy arguments for doing so. . . . ”). 
Contrary to appellants’ anachronistic (and facially erroneous) 
hypotheticals,6 interpreting Section 5 to reach only

6 The United States asserts (hat, if "abridge" in Section 5 means 
retrogression from the existing system, then Section 5 would not prohibit 
towns like Tuskegee, Alabama from gerrymandering their municipal 
boundaries to exclude black volets, if the town had previously prohibited 
b lxks from voting. U.S. Reply Br. at 4. Cf. Gomillion * Lighrfoot, 364 
U.S. 339(1960). This is facially wrong for two reasons. Fust, regardless of 
whether “abridge" means retrogressioa or something more. Section 5 
nevertheless prohibits any diange for the purpose o f "denying the right 
to vote on account of race,” 42 U.S.C. } 1973c, aid  any Gomillion-hkc 
exclusion of blacks from a municipality is precisely intended to create such 
a denial. Second, any complete denial of minorities* right to vote would, by 
definition, constitute a reduction of their “ 'theretofore enjoyed voting 
rights,’ ’’ and would there foe be retrogressive. Richmond, 422 U.S. at 379

13

retrogressive changes cannol. in the 1990s, possibly result in 
either perpetuating a discriminatory status quo or any judicial 
tolerance of intentionally discriminatory voting changes. 
Rather, the only policy issue is whether such “discriminatory 
purpose” issues should be adjudicated by the traditional district 
courts that resolve such constitutional questions in every other .\* 
context or, rather, by a limited-purpose District of Columbia m 
court and/or an unreviewable Justice Department bureaucracy 
that has a (Tack record of equating discriminatory purpose with 
any failure to maximize minority voting strength to the greatest 
extent possible. Initial Br. at 41-42.

First, changei which perpetuate the status quo are discrim­
inatory only if the status quo being so extended is itself 
discriminatory. The status quo for any redistricting plan hence­
forth submitted for preclearance, however, is necessarily non- 
ditcriminaiory since the Justice Department (or the Section 5 
court) has affirmatively found it to be free of both discrimina­
tory purpose and effect at least two, and usually three, times in 
the 1970s. 80s and 90s. As this Court has noted, preclearance 
was forthcoming in the 1990s only if the Department found 
that it complied with the “results” standard of Section 2 and 
the jurisdiction created any reasonably possible majority- 
minority district. Miller v. Johnson, 515 U.S. 900, 912, 923-27 
(1995); Bush, 517 U.S. at 902, Shaw v. Hunt, 517 U.S. 899,

(quoting Gomitlion, 354 U.S. at 347). While towns like Tuskegee. Alabama 
-  the defendant in Gomillion -  might have made it nearly impossible for 
blacks to vote in the 1960s. a voting charge making it literally impossible 
would nonetheless be retrogressive. The United States' related assertion 
that an all-white jurisdiction could pass a law denying minorities the right 
to vote is patently erroneous for die same reason -  any such law would be 
both a denial and retrogressive. The purpose of such a change would be to 
reduce minority voting rights relative to those which existed before the 
change, and thus would be retrogressive. The fact that the town making the 
change is all white does not exempt it from Section 5 or alter this 
retrogression analysis since, as discussed below, a jurisdiction may possess 
a retrogressive purpose with respect to future black voters, as well as to 
current black voters See infra pp. 21-22; City o f Pleasant Grove v United 
Stales, 479 U S. 462, 471 (1987).

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912-13 (1996). Thus, in striking contrast to the 1970s, the 
retrogression benchmark in the 2000 redislricting cycle is set 
extraordinarily high. Simply maintaining that minority maxim­
ization status quo under a nonretrogression principle will not 
perpetuate a»y discriminatory redistricting plans. It will main­
tain, rather, a system which maximizes minority voting 
strength to the extent constitutionally permissible (and some­
times beyond what is permissible). It is extraordinarily implau­
sible that a submitting jurisdiction, except in the rarest of 
cases, could avoid retrogressing from the race-conscious redis­
lricting required in the 1990s and still unconstitutionally dilute 
minority voting strength. The discriminatory purpose inquiry 
will add to the nonretrogression principle, and come into play, 
only in those rare cases where the covered jurisdiction has 
failed to add yet another majority-minority district to those 
existing in the 1990s, and the Justice Department alleges that 
this failure is motivated by racial animus.

In light of this, there is simply no reason to stretch Section 
5‘s jurisdiction and substantive standard in order to adjudicate 
these rare hypothetical First, the traditional district courts are 
better situated to conduct the “intensely local appraisal" 
required for analyzing the racial purpose of voting plans and. 
as discussed below, the United States will have the burden to 
establish discriminatory purpose in either those district courts 
or the Section 5 court. White v. Regester, 412 U.S. at 769-70; 
see infra p. 25. Conversely, preclearing such redistricting plans 
in no way endorses any potential Fifteenth Amendment viola­
tion, any more than prtclearance endorses a voting change that 
violates Section 2 or the First Amendment. (Indeed, under 
appellants’ theory, Section 5 courts must adjudicate the redis- 
tricting plan’s compliance with the Fourteenth Amendment’s 
one-petson one-vote principle and Shaw's racial neutrality 
requirement to avoid “endorsing” such constitutional viola­
tions.) But this Court did not give a seal of approval to the 
voting changes in Lockhart when it held that the new at-large 
and numbered-post systems were “entitled to § 5 pre­
clearance,’’ even though such devices often were used to inten­
tionally dilute minority voting strength and the electoral

)4

system “remained discriminatory.” 460 U.S. at 134. Pre- 
clearance simply reflects the fact that Section 5 objections are 
not appropriate for changes that satisfy Section 5, because the 
District of Columbia Court and the Attorney General have no 
jurisdiction to resolve whether the proposed change violates 
other constitutional or federal voting rights guarantees.7 The 
fact that the United Stales Court of Federal Claims (the other * 
special, limited-purpose court in the District of Columbia) $  
cannot adjudicate due process violations hardly “endorses’’ 
such unconstitutional deprivations of properly. See South Caro­
lina. 383 U.S at 331-32 (comparing Section 5 courts to Claims 
Coin). See, e.g., LeBlanc v. United States, 50 F.3d 1025, 1028 
(Fed. Cir. 1995). Il simply recognizes that the Court of Federal 
Claims has no jurisdiction over, and has no power to remedy, 
such violations, just as the District of Columbia Section 5 court 
is without jurisdiction and the power to remedy a nonretrogres- 
sive Fifteenth Amendment violation.

Indeed, as this Court has noted, Section 5 itself expressly 
contemplates that such constitutional issues will be adjudicated 
in “ ‘traditional suits attacking [the voting procedure’s) consti­
tutionality' ” in a “ ‘subsequent action to enjoin enforce­
ment.’ ” Shaw v. Reno, 509 U.S. 630, 654 (1993) (quoting 
Allen v. Stare Bd. of Elections, 393 U.S. 544,549-50 (1969)). If 
unconstitulioaal discriminatory purpose is to be adjudicated in 
both the Section 5 and subsequent district court litigation, tbis 
creates the distinct possibility of duplicative litigation and 
inconsistent judgments. Initial Br. at 36.

In addition, while interpreting Section 5 pursuant to its 
plain language will not in any way permit a constitutional 
violation to be unremedied, expanding the Justice Depart­
ment’s Section 5 jurisdiction to encompass “discriminatory 
purpose’’ will encourage or coerce covered jurisdictions to 
co m m it constitutional violations. As this Court has recognized.

7 Interpreting the jurisdiction of Section 5 coarts to extend only to 
Section 5 issues is particularly appropriate because the Court has "long 
held that congressional enactments providing for rhe convening of three- 
judge courts must be strictly construed.” Allen r. Suite Bd. o f  Elections, 393 
U.S. 544, 561 (1969). -3

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if ihe covered jurisdiction fails to “subordinate traditional 
[rejdistricting principles" to create a majority-minority district 
hypothesized by Justice Department lawyers, the Department 
will rind "a discriminatory purpose,” but if it acquiesces to the 
Department’s coerced racial gerrymander, it will violate the 
rights of nanminorities under Shaw. Bush, 517 U.S. at 979; 
Initial Br. at 42. Placing covered jurisdictions in the position of 
satisfying such inconsistent demands greatly exacerbates the 
already “substantial federalism costs’* of Section 5 and will 
lead yet again to another unendiag cycle of redislricting litiga­
tion of the sort that bedeviled such jurisdictions during the 
1990s. Lopez v. Monterey County, 119 S. Ct. 693, 703 (1999) 
(iatemal quotations omitted). In short, while there is no realis­
tic fear that meritorious discriminatory purpose claims will go 
unremedied if Section 5 is givea a properly limited construc­
tion, there is a very real chance that, under appellants’ expan­
sive view, discriminatory purpose will be erroneously found by 
the Justice Department and the fear of such a finding will force 
covered jurisdictions to violate the constitutional rights of 
nonminorities.

For all these reasons, appellants’ proposed interpretation 
stretches Section 5 far beyond its intended scope and works a 
major, and constitutionally suspect, intrusion on State sover­
eignty that, at a minimum, should not be inferred absent the 
clearest possible direction from Congress. While covered juris­
dictions have a unique procedural burden under either inter­
pretation of Section 5, the retrogression principle at least is a 
focused substantive inquiry and gives some deference to the 
State’s policies concerning its electoral and political processes. 
Uoder die retrogression principle, the State is essentially pro­
hibited from departing from its prior electoral practices in a 
manner which disadvaitages minority voters -  thus ‘freezing” 
the Stale’s prior choices on how to organize its system of self- 
governance. While this is a serious intrusion on State sover­
eignty, it at least defers to tbe Stale’s own prior policy choices 
concerning voting and elective office. No federal court or 
bureaucrat imposes on Ihe State a “nondiscriminatory 
benchmark” practice -  “because in a § 5 case the question of 
an alternative benchmark never arises -  the benchmark is

16

simply the former practice employed by the jurisdiction seek­
ing approval of a change." Holder v. Hall, 512 U.S. 874, 888 
(1994) (O’Connor, J.. concurring in part and concurring in the 
judgment). Under appellants’ free-floating “purpose” inquiry, 
in contrast, Justice Department lawyers or Section 5 “courts 
must choose an objectively reasonable alternative practice as a 
benchmark for the [dilutive purpose] comparison." Id. at 887 £  
(emphasis added). The covered jurisdiction thus has the burden 
of demonstrating the objective, race-neutral superiority of its 
change over the myriad alternative possibilities that Justice 
Department lawyers proffer as preferred alternatives that the 
State “should have” chosen This “wide range of possibilities 
makes the choice inherently standardless” and subject to 
unending manipulation by the Justice Department bureaucracy 
-  particularly with respect to choices sach as which of a 
multitude of possible redistricting plans is the "best" one. Id. at 
885 (opinion of Kennedy. J.) (quoting opinion of O’Connor, J., 
concurring in part and concurring in judgment).

As this Court has recently noted in an analogous (albeit 
far les$ intiusive) context, “fwjhen the federal Government 
asserts authority over a State’s most fundamental political 
processes, it strikes at the heart of the political accountability 
so essential to our liberty and republican form of government.” 
Alden v. Maine, No. 98-436, 1999 U.S. LEXIS 4374, at *78 
(U.S. June 23, 1999). Thus, at some point, investing federal 
courts and government lawyers with such standardless power 
impermissibly intrudes on the “essential sovereignty of the 
States” that is guaranteed by our "constitutional system.” Id. at 
•76. See also Miller, 5(5 U.S. at 927. At an absolute minimum, 
the Court should not adopt an interpretation of Section 5 which 
so dramatically ”alter(s) the nsual constitutional balance 
between the States and the Fedeial Government." unless Con- pj 
gross has made “its intention to do so unmistakably clear in the 
language of Ihe statute.” Will v. Michigan Dep't o f Slate Police,
491 U.S. 58, 65 (1989) (internal quotations omitted). Gregory 
v. Ashcroft. 501 U.S. 452. 460, 470 (1991).

2. Not only do Ibis Court's precedents not require inter­
preting Section 5 to reach noorelrogressive purpose, they 
strongly support the opposite result. The logic of both Beer and

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Bossier I all but compel the conclusion that Section S's “pur­
pose,” like Section 5’s “effect,” reaches only retrogression. 
Any other reading raises all the concerns that animated the 
Court in Beer and Bossier I and renders both of those decisions 
devoid of practical significance.

Notwithstanding this, appellants seem to make the extraor- 
diaary suggestion that Beer, the seminal case establishing that 
the “purpose of § 5 was to prohibit only retrogressive changes” 
which reduced the status quo, actually ruled that the “purpose" 
prong of Section S also prohibited nonretrogressive changes if 
they are intended to maintain the status quo. Lockhart, 460 
U.S. at 134 o.lO (citing Beer, 425 U.S. at 141); U.S. Reply Br. 
at 7. But, of course, Beer did not in any way interpret the 
“purpose” provision of Section 5 or suggest that it had a 
different reach than the "effect” prong -  and no one, including 
the United States, has ever so interpreted that opinion. As (he 
United States elsewhere recognizes, the “purpose" provision of 
Section 5 was not at issue in Beer, and Beer never mentions it, 
mich less suggests that it has an entirely different meaning 
thin the retrogressive “effect” standard. US. Br. at 29; Beer. 
425 U.S. at 139.

To be sure, as both the majority and dissenting opinions in 
Bossier I recognized. Beer noted that a change which satisfies 
Section 5‘s aonretrogression standard could “nonetheless con­
tinue so to discriminate on the basis of race or color as to be 
unconstitutional." Beer, 425 U.S. at 142 n.I4 (emphasis 
added). No one has interpreted this language to suggest that 
Section 5 prohibits nonretrogressive changes, but only to sug­
gest, at most, that a change which satisfies (he less demanding 
standard of Section 5 may nonetheless violate the more 
demanding constitutional standard. See, e.g., Bossier l, App. 
71a (Stevens, J., dissenting in part and concurring in part); 
App. 38a-39a. This, of course, supports our assertion that 
while the Constitution reaches nonretrogressive discriminatory 
voting procedures. Section 5 does not. Appellants nevertheless 
seem to suggest that Section 5 incorporates the Constitution’s 
substantive prohibition against nonretrogressive discriminatory 
changes, on the basis of the following passage from Beer. 
“(A]n ameliorative plan ‘cannot violate |  5 unless [it] so

19

discriminates on the basis of race or color as to violate the 
Constitution.’ ” U.S. Reply Br at 8 (quoting Beer, 425 U.S. at 
141) (emphasis added by U.S. Brief)- This excerpt, however, in 
no way suggests that Section 5 and the Coastitution are coter­
minous but, rather, merely confirms again that the Constitution 
is a different, more demanding standard than Section 5.*

We fully agree that a jurisdiction cannot violate Section 5 
“unless” it violates the Constitution, because a constitutional 
violation is a necessary, albeit not sufficient, basis for estab­
lishing a Section 5 purpose violation. A jurisdiction cannot 
violate the Constitution unless it violates Section 2, because 
Section 2 is a different, more demaading standard than the 
Constitution. This does not mean that a government violates 
the Constitution if it violates Section 2 or that the Constitution 
and Section 2 are coextensive. By the same token, the Beer 
excerpt does not suggest that a jurisdiction violates Section 5 if 
it violates the Coastitution. but only that the more demanding 
standard in the Constitution is a necessary prerequisite to 
establishing a Section 5 violation, just as a Section 2 violation

» This sentence in Betr has never been consuued as suggesting that 
the “purpose'’ prohibited by Section 5 is the same as an unconstitutional 
purpose To the contrary, the Bossier l  dissenting opinion argued that this 
same passage from Brer suggested Section 5 precleirance could be denied 
for changes which clearly ‘Violated some other federal law ” including noi 
just violations of the “Constitution,” but also laws. Ike amended Section 2, 
that incorporated the "standird established in White v. Regester." Bossier I, 
App 70a-72a (Stevens, J, dissenting in put and concurring in part) 
(emphasis added). The relevant point here is that the dissenting opinion, 
like the majority opiaion, recognized that any denial o f preclearance to a 
nonretrogressive change was premised not on a Section 5 violation, but on 
a violation of an etogenous command contained in Section 2 or the 
Constitution. The 1982 legislative history similarly interpreted Beer to 
authorize a prtclearance denial for a constitutional violation, and also 
thought that Section 2 could supply an additional, exogenous ground for 
denying preclearance. S. Rep. No. 417, at 12 n.3l (1982). But, again, 
nothing in the legislative history suggests any belief that Beer had 
interpreted the Section 5 "purpose” standard to reach nonretrogressive 
changes or to incorporate the Constitution’s purpose standard.

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is a threshold requirement io even allege a potential constitu­
tional violation. As we explained at length in our prior brief, 
the Court in Shaw v. Reno subsequently eliminated any ambi­
guity on this point. There, the Court interpreted the Beer 
dictum to simply suggest “that a reapportionment plan that 
satisfies Section S still may be enjoined as unconstitutional" 
and further clarified that any such constitutional violation must 
be established in a “subsequent action to enjoin enforcement," 
rather than the Section S proceeding itself. 509 U.S. at 654 
(internal quotations omitted). Initial Br. at 35. The subsequent 
aciion is required because, as we previously explained, the 
Section 5 court simply has no jurisdiction over constitutional 
claims (or any claim other than Section 5) and Section 5 
expressly contemplates such a subsequent constitutional chat- 
tenge. See supra p. 16; Initial Br. at 36.

Similarly, the Court’s decision in City of Pleasant Grove v. 
United States, 479 U.S. 462 (1987), never mentioned, and did 
not implicate, the issue of whether Section 5 reached only a 
discriminatory retrogressive purpose or also reached a discrim­
inatory nonretrogressive purpose. Rather, it simply held that 
future black voters, as well as current black voters, were 
protected against the retrogressive discriminatory purpose that 
Richmond bad made clear violated Section 5. If any of the 
thirty-two black residents of Pleasant Grove had registered to 
vote before its discriminatory annexations, there is no question 
that those annexations of white-occupied land would be a 
straightforward violation of the retrogression standard since 
the black voting perceitage after the change would have been 
less than that existing before the change. The Pleasant Grove 
majority simply held that this result was aot altered because 
none had registered or because new black voters entered after 
the time of the annexation. 479 U.S. at 465 n.2. If a covered 
jurisdiction severely reduced polling place hours the day after 
a black voter moved into town, this plainly has the retrogres­
sive purpose of denying the voting rights the black voter 
enjoyed before the change. Pleasant Grove correctly held that 
the retrogressive purpose prong also prohibits a jurisdiction 
from so reducing voting hours the day before a black voter is 
expected to move in. This holding in no way suggests that

in
21 CL

Section 5 reaches a nonretrogressive purpose, or that Section 
5's “purpose" is broader than “effect,” ind any such suggestion 
is contradicted by the Court’s explicit finding that Section 5 
purpose follows effect, initial Br. at 29.®

II. THE UNITED STATES BEARS THE BURDEN O F *  
PROVING THAT A COVERED JURISDICTION HAS® 
A NONRETROGRESSIVE DISCRIMINATORY PUR- 
POSE.
As noted, the only identified or conceivable basis for 

contending that preclearance can be denied to a nonretrogres­
sive change is that Section 5 incorporates the constitutional 
standard or that a constitutional violation forms a discrete basis 
for denying preclearance. See. e.g.. Bossier l, App. 61a 
(Breyer, J., concurring in part and concurring in the judgment) 
(“Section 5 prohibits a covered state from making changes in 
its voting practices and procedures where those changes have 9

9 Tile court’s summary affirmance in Busbee « Smith, 549 F. Supp. 
494(D.D.C. 1912). off ‘d  459 U.S. 1166(1983). just one month before the 
Lockhart decision, plainly did noi resolve the question that the Court in 
Bossier I left open forresolulion. This Court has repeatedly made clear that 
"[s)ummary actions . . .  shoild not be uiderstood as breaking new ground 
but as applying principles established by prior decisions to the particular 
facts involved." Mandel v. Bradley, 432 U.S. 173. 176 (1977). See also 
Illinois State B i  o f  Elections v. Socialist Workers Party, 440 U.S. 173, 
180*81 (1979). Of course, iiteipreting the Busbee affirmance as holding 
that Section 5 reaches nonretrogressive changes would surely break new 
ground by expanding -  indeed, contradicting -  the holdings in Beer and 
Lockhart that Section 5 reached only retrogressive changes. There was 
certainly no established principle that Section 5 reached nonretrogressive 
changes when Busbee was affirmed. Moreover, summary affirmance does n  
not endorse the reasoning of the court below and since the Georgia ^  
re districting at issue in Busbee could be viewed as retrogressive, affirming '-l 
the judgment in that case is not necessarily premiied on the view that g, 
Seciion 5 reaches nonretrogressive changes. See. e g.. Bush, 517 U.S. at ft 
996 (Kennedy. J., concurring) ("[0]ur summary affirmance in DeWiti, y1 
stands for no proposition other than that the districts reviewed there were ^  
constitutional.”)  See Initial Br. at 30 n.23. •,



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the unconstitutional ‘purpose' of unconstitutionally diluting 
minority voting strength’ (emphasis in original)); id. at 
7la-72i (Stevens, I., dissenting in part and concurring in part) 
(“Beer’s dictum suggests that any changes that violate the 
standard established in White v. Regester should not be pre­
cleared”). Thus, if Section 5 does reach a change with a 
nonretregressive discriminatory purpose, the United States has 
the burden of establishing that impermissible purpose in a 
Section 5 proceeding.10 11

Indeed, in Bossier l, the United States expressly conceded 
this point because it was forced to acknowledge that, even 
under its erroneous construction, Beer squarely placed the 
burden of proving unconstitutional discriminatory purpose on 
it. Specifically, as the United States’ Bossier I brief conceded. 
Beer upheld the reapportionment plan at issue because " ‘Itjhe 
Veiled States has made no claim’ ’’ that the plan violated the 
Constitution. U.S. Br. in Bossier /, at 43 (quoting 425 U.S. at 
142 n.14) (emphasis added by U.S. Brief). Accordingly, the 
United States conceded that, under Beer, the burden to prove a 
constitutional violation “as a bar to preclearance remains with 
the Attorney G e n e r a lU.S. Br. in Bossier I at 43 (emphasis 
added).11 Thus, if appellants are correct that Beer authorized

10 To be sure, the covered jurisdiction has the burden to disprove both 
the retrogressive purpose and effect prohibited by the plain language of 
Section 5. But no one argues that the statutory language can be consistently 
cots trued to prohibit only a retrogressive effect but simultaneously prohibit 
a noturetrogressi ve purpose. Rather, the assertion is that “purpose” must be 
treated differently than “effect” in orderlo ensure that Section 5 reaches all 
unconstitutional voting discrimination. U.S. Br. at 29-31. Since the premise 
for so ccoslroiAg Section 5 is to maintain consistency with constitutional 
norms, the burdens of proof should similarly be consistent with the 
constitutional norm.

11 In its reply brief, (he Solicitor General disingenuously maintains
that the United Stales never conceded in Bossier l  that it had the burden of 
proving a constitutional violation, but conceded only that it had the burden 
of proving a Section 2 violation U.S. Reply Br. at 12 n.12. B ut in the 
Botsier /  brief, the United States accepted the Section 2 burden precisely 
and only because, under Beer, it plainly had the burden to show a

denying preclearance to any discriminatory voting change that 
violates the Constitution, that opinion also concedediy placed 
the burden on the “Attorney General” to prove such an uncon­
stitutional purpose.

Similarly, the dissenting opinion in Bossier f, after con­
cluding that Section 5 preclearance should be denied to x. 
changes which offend Section 2, acknowledged that the burden ^  
of establishing that Section 2 violation “should rest on the 
Attorney General” as it would in “any § 2 challenge.” Bossier 
I, App. 69a (Stevens, I., dissenting in part and concurring in 
part). By the same logic, assuming that Section 5 prohibits 
unconstitutional vote dilution, the burden of establishing that 
constitutional violation should rest with the Attorney General 
as it would in any constitutional challenge.

In short, it seems to be universally agreed that if Section 5 
is to be extended to encompass voting rights guarantees 
embodied in “other federal lawfs},” there should be a concomi­
tant adjustment to require that the United States prove such a 
violation, as it would have lo in actions brought directly under 
those “pther federal law[s|.” Id. at 69a-70a.12 Mote speci­
fically, those who believe that Beer authorized denial of pre­
clearance to constitutional violations (or laws “coextensive 
with the constitutional standard” as it was understood in 1976) 
have acknowledged that the burden of proving that White v. 
Regester violation was on the United States. Id. at 71a.

Moreover, placing the burden on the United States to show 
an unconstitutional purpose is consistent with the general rule 
that “ftjhe burden of proving compliance with the Act rests on

constitutional violation. U.S. Br. in Bossier l, at 43. Consequently, the 
United States’ argument ran, since it had the constitutional burden and 
since the 1982 Congress eqtated constitutional and Section 2 violations, it 
also had the burden under Section 2. Accordingly, the necessary premise of 
the United States' concession that it had the Section 2 burden was its 
concession that it had the burden to prove unconstitutional discrimination.

,J See. e g.. Fireman !r Fund Ins. Co. v. Vtdefreeze Corp., 540 F.2d 
1171, 1176 (3d Cir. 1976) (“The burden o f proof which usually 
accompanies the affirmative of the issue . . .  should not be shifted merely 
due to the form of the action.”).

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the jurisdiction.” Id. at 68a. The Fact that the jurisdiction must 
disprove retrogressive purpose and effect, by itself, “shiftfs] 
the advantage of time and inertia from the perpetrators of the 
[alleged] evil to its [alleged] victims" by overriding the normal 
presumption of legality extended to sovereign state acts and by 
forcing federal review prior to any use of the suspect change. 
South Carolina, 383 U S. at 328. This advantage is not undone 
by requiring the United States to prove an unconstitutional 
purpose in the same manner it would have to in a normal 
proceeding. If, for whatever reason, a Section 5 proceeding is 
expanded to include adjudication of an unconstitutional pur­
pose issue that is normally adjudicated in district court, there is 
no reason that either party should have a differeat burden than 
it would have in that typical case. In adjudicating unconstitu­
tional vote discrimination, southern jurisdictions are not sec­
ond-class citizens who must affirmatively disprove their guilt, 
but, like noitbem jurisdictions, are entitled to a strung pre­
sumption of constitutionality unless the Justice Department or 
private plaintiffs can prove otherwise.

That being so, even assuming there is a plausible basis for 
importing constitutional standards into Section 3, there is nev­
ertheless no basis for also requiring coveted jurisdictions to 
prove their compliance with that exogenous law and to do so 
would markedly enhance the "novel” and “extraordinary" fed­
eralism burden already imposed by Section 3. Bossier I, App. 
66a (Stevens. dissenting in pan and concurring in pan). 
Congress tempered tie extraordinary procedural burden 
imposed by Section 3 by limiting tbe substantive issue to the 
straightforward and manageable one of whetfier tbe change is a 
regression from the status quo. Further requiring a covered 
jurisdiction to also, in essence, sue itself under the Constitution 
and disprove tbe validity of hypothetical alternatives invented 
by Justice Department lawyers (and then perhaps litigate those 
sane issues again in a defensive lawsuit in district court) 
would disrupt that delicate balance and be contrary to basic 
federalism principles.

Indeed, particularly since the Justice Department equates 
"discriminatory purpose" with a failure to maximize the 
number of majority-minority districts, imposing such a burden

25

on a covered jurisdiction raises serious constitutional questions 
about Section 5 itself. Miller, 515 U.S. at 925-28. Given this 
constitutional doubt about the expansive Section 5 envisioned 
by appellants, (heir interpretation should not be adopted if the 
statute can reasonably be construed otherwise -  which it obvi­
ously can and should be. Edward J. DeBartolo Corp. r. Florida 
Gulf Coast Bldg. A Constr. Trades Council, 485 U S. 568, 
574-75 (1988).

Finally, we note that since tbe only equitable and logical 
way to import the uiconstitutional purpose inquiry into a 
Section 5 proceeding is to shift the burden of proof to the 
United States, this is an additional reason for not so expanding 
the substantive scope of the Section 5 proceeding. This is 
because, as the United States has also acknowledged, any 
interpretation of tbe preclearance proceedings which entails a 
burden shift cannot practicably be conducted in the Justice 
Department’s Section 5 administrative proceedings. More fun­
damentally, it is absurd to believe (hat one lawyer in the Justice 
Department's Civil Rights Division can carry the harden of 
disproving the discriminatory purpose alleged by another law­
yer, or that the Attorney General could disprove discriminatory 
purpose to herselF. Therefore, all such constitutional issues 
should be left to the district courts.

M ichael E. Rojman 
H ans F. B adir

Cento* for Individual R ights 
1300 19th Street, N.W. 
Washington, D.C. 20036 
(202) 833-8400

Respectfully submitted,
M ichael A. C arvin* 
D avid H . T hompson 
C raig S. L erner 
C ooper, Carvin &  

R osenthal, PLLC 
1500 K Street. N.W. 
Suite 200
Washington, D.C. 20005 
(202) 220-9600

*Counsel o f Record

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