Reno v. Bossier Parish School Board Supplemental Brief on Reargument of Appellants

    Nos. 98-405 & 98-406

In The

Supreme Court of tfje ®mteb States.

Janet Reno , Attorney General of 
the United States,

Appellant, and

George Price, et al.,

v.
Appellants,

Bossier Parish School Board,
Appellee.

On Appeal from the 
United States District Court 
for the District of Columbia

SUPPLEMENTAL BRIEF ON REARGUMENT OF 
APPELLANTS GEORGE PRICE, ET AL.

Barbara R. Arnwine 
Thomas J. Henderson 
Edward Still 

Lawyers’ Committee For 
Civil Rights Under Law 
1401 New York Ave., N.W. 
Suite 400
Washington, D.C. 20005 
(202) 662-8600

* Counsel of Record

Patricia A. Brannan* 
John w . Borkowski 

Hogan & Hartson l.l.p. 
555 Thirteenth Street, N.W. 
Washington, D.C. 20004 
(202)637-8686

Counsel for Appellants 
George Price, et al.



TABLE OF CONTENTS
Page

I. THE PURPOSE PRONG OF § 5 OF THE
VOTING RIGHTS ACT OF 1965 EXTENDS
TO A DISCRIMINATORY BUT NON-
RETROGRESSIVE PURPOSE...........................  2

II. THE COVERED JURISDICTION BEARS THE
BURDEN OF PROOF TO SHOW THAT ITS 
DISTRICTING PLAN WAS ENACTED 
WITHOUT A DISCRIMINATORY 
PURPOSE...........................................................  7

CONCLUSION.......................................................... 17

(i)



TABLE OF AUTHORITIES

CASES:
Allen v. State Bd. of Elections, 393 U.S. 544 (1969).....  8
Basic Inc. v. Levinson, 485 U.S. 224 (1988)................. 10
Beer v. United States, 425 U.S. 130 (1976).................. 4, 7-8
Busbee v. Smith, 459 U.S. 1166 (1983)......................... 5
Busbee v. Smith, 549 F. Supp 494 (D.D.C. 1982)......... 5
City of Pleasant Grove v. United States, 479 U.S.

462 (1987)................................................................  5,8
City of Pleasant Grove v. United States, 568 

F. Supp. 1455 (D.D.C. 1983)...................................  5
City of Port Arthur v. United States, 459 U.S. 159 

(1982).......................................................................  5
City o f Richmond v. United States, 422 U.S. 358 

(1975).......................................................................  passim
City o f Rome v. United States, 446 U.S. 156 (1980).....  4, 8
Dougherty County Bd. ofEduc. v. White, 439 U.S.

32 (1978)..................................................................  6
Georgia v. United States, 411 U.S. 526 (1973).............  7
Hadnott v. Amos, 394 U.S. 358 (1969).......................... 6
Lopez v. Monterey County, 119 S. Ct. 693 (1999)........  4
McCain v. Lybrand, 465 U.S. 236(1984).....................  7
McDaniel v. Sanchez, 452 U.S. 130 (1981)..................  8
Reno v. Bossier Parish Sch. Bd., 520 U.S. 471 

(1997).......................................................................  6
South Carolina v. Katzenbach, 383 U.S. 301 

(1966).......................................................................  passim
United Jewish Orgs. o f Williamsburgh, Inc. v.

Carey, 430 U.S. 144 (1977)......................................  3

ii

Page



TABLE OF AUTHORITIES—Continued
Page

Village of Arlington Heights v. Metropolitan Hous.
Dev. Corp., 429 U.S. 252 (1977)..............................  passim

Washington v. Davis, 426 U.S. 229 (1976)..................  6

CONSTITUTIONAL PROVISIONS'.
U.S. Const, amend. XV..............................................  passim

ST  A TUTOR Y PRO VISIONS:
Voting Rights Act of 1965,

42U.S.C. § 1973b(a)..................................................  12
42 U.S.C. § 1973c.......................................................  passim

RULES AND REGULATIONS:
Fed. R. Civ. P. 52(c)...................................................  13

LEGISLA TIVE MA TERIALS:
Hearings on H.R. 4249, H.R. 5538, and Similar 

Proposals Before Subcomm. No. 5 of the House 
Comm, on the Judiciary, 91st Cong. (1969).............  9

H.R. Rep. No. 91-397 (1969)......................................  8
Joint Views of Ten Members of the [Senate]

Judiciary Comm., 91st Cong., 2nd Sess.,
115 Cong. Rec. 5521 (1970)....................................  8

Report of the Comm, on the Judiciary on S.1992,
S. Rep. No. 97-417 (1982)....................................... 8-9

115 Cong. Rec. 38486 (1969)......................................  11
116 Cong. Rec. 6154 (1970)........................................ U
116 Cong. Rec. 6168 (1970)........................................ 9
116 Cong. Rec. 6515-22 (1970)..................................  9
116 Cong. Rec. 6624-25, 6644 (1970)......................... 9

iii IV

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITY:
Fleming James, Jr. and Geoffrey C. Hazard, Jr.,

Civil Procedure (3d ed. 1985)...................................  10-11
2 McCormick on Evidence (4th ed. 1992)..................... 9-11
21 Charles Alan Wright and Kenneth W. Graham,

Federal Practice and Procedure (1977)...................  10
10B Charles Alan Wright, Arthur R. Miller &

Mary Kay Kane, Federal Practice and
Procedure (1998)......................................................  9-10

9 John Henry Wigmore, Evidence in Trials at 
Common Law (Chadboum rev. 1981)........................ 10

Page



In The

Supreme Court of tfje ®mteb &tate$

Nos. 98-405 & 98-406

Janet Reno, Attorney General of 
The United States,

Appellant, and
George Price, et al.,

Appellants
v.

Bossier Parish School Board,
Appellee.

On Appeal from the 
United States District Court 
for the District of Columbia

SUPPLEMENTAL BRIEF ON REARGUMENT OF 
APPELLANTS GEORGE PRICE, E T  AL.

This Court’s Order of June 24, 1999, directs the parties to 
file supplemental briefs addressing the following questions:

1. Does the purpose prong of § 5 of the Voting Rights 
Act of 1965 extend to a discriminatory but non- 
retrogressive purpose?
2. Assuming arguendo that § 5 prohibits the 
implementation of a districting plan enacted with a 
discriminatory, non-retrogressive purpose, does the 
government or the covered jurisdiction bear the burden of 
proof in this issue?



Section 5 itself, its history, and this Court’s teachings on 
the “purpose” prong of § 5 all support an affirmative 
response to the first question. A voting change enacted with 
a discriminatory but non-retrogressive purpose is foreclosed 
from § 5 preclearance.

In response to the second question, the covered jurisdiction 
bears the burden of proving that any voting change, whether 
retrogressive or not, is nondiscriminatory. This Court’s 
decisions, § 5 and its legislative history, and general 
principles regarding the allocation of the risk of 
nonpersuasion all support this conclusion. This also is a fair 
and reasonable burden to place on covered jurisdictions. The 
prima facie showing of nondiscriminatory purpose that 
should be expected o f the covered jurisdiction is modest, 
requiring evidence that legitimate, verifiable reasons, not 
involving racial animus, motivated the proposed voting 
change. The Attorney General and any intervening 
defendants should have the obligation to bring forward in the 
first instance any evidence of racially discriminatory intent. 
Covered jurisdictions, where such evidence of discriminatory 
purpose is proffered, have the opportunity and obligation to 
rebut it in order to obtain preclearance.

I. THE PURPOSE PRONG OF § 5 OF THE VOTING 
RIGHTS ACT OF 1965 EXTENDS TO A DIS­
CRIMINATORY BUT NON-RETROGRESSIVE 
PURPOSE.

Section 5 of the Voting Rights Act of 1965 requires states 
or political subdivisions identified by criteria specified in the 
Act to obtain a declaratory judgment in the United States 
District Court for the District of Columbia that any change in 
a voting “qualification, prerequisite, standard, practice, or 
procedure does not have the purpose and will not have the 
effect of denying or abridging the right to vote on account of 
race or color.” 42 U.S.C. § 1973c (App. 244a-245a).’

1 “App.” refers to the separately bound Appendix to the 
Jurisdictional Statement filed on behalf of Janet Reno in 
No. 98-405.

3

Alternatively, such voting changes may be precleared by 
submission to the Attorney General. Id.

From this Court’s earliest consideration of the Act, it has 
identified § 5 as a key element in the protections carefully 
designed by Congress to eradicate racial discrimination in 
voting that impairs the free and equal participation of 
African-Americans and other minorities in the political 
process. South Carolina v. Katzenbach, 383 U.S. 301, 
315-16, 319-20 (1966). When this Court in Katzenbach 
upheld the power of Congress to enforce the Fifteenth 
Amendment through the Voting Rights Act of 1965, it 
closely reviewed the extensive hearings, testimony, and floor 
debate that formed the factual basis for the “overwhelming” 
assessment of both chambers of the Congress that strong 
action was needed. Id. at 309. The Court summarized the 
factual points that “emerge[d] vividly from the voluminous 
legislative history of the Act contained in the committee 
hearings and floor debates[:]

First: Congress felt itself confronted by an insidious and 
pervasive evil which had been perpetrated in certain parts 
of our country through unremitting and ingenious defi­
ance of the Constitution. Second: Congress concluded 
that the unsuccessful remedies which it had prescribed in 
the past would have to be replaced by sterner and more 
elaborate measures in order to satisfy the clear commands 
of the Fifteenth Amendment.”

Id. Section 5 thus stands on a remedial footing, based on the 
extensive factual record that undergirds the Voting Rights 
Act. United Jewish Orgs. o f  Williamsburgh, Inc. v. Carey, 
430 U.S. 144, 156-57(1977).

Congress further “found that case-by-case litigation was 
inadequate to combat widespread and persistent discrimina­
tion in voting, because of the inordinate amount of time and 
energy required to overcome the obstructionist tactics 
invariably encountered in these lawsuits.” Katzenbach, 383 
U.S. at 328 (footnote omitted). Case-by-case litigation under 
previous statutes attempting to secure Fifteenth Amendment 
rights “proved ineffective” because it was burdensome and



4

slow. Id. at 314. Even when plaintiffs succeeded in obtain­
ing judgments outlawing racially discriminatory voting prac­
tices, “some of the States affected have merely switched to 
discriminatory devices not covered by the federal decrees or 
have enacted difficult new tests designed to prolong the 
existing disparity between white and Negro registration.” Id. 
(footnote omitted).

Congress required covered jurisdictions to demonstrate that 
each voting change “does not have the purpose and will not 
have the effect of denying or abridging the right to vote on 
account of race or color.” 42 U.S.C. § 1973c (App. 244a- 
245a) (emphasis added). “By describing the elements of 
discriminatory purpose and effect in the conjunctive, 
Congress plainly intended that a voting practice not be 
precleared unless both discriminatory purpose and effect are 
absent.” City o f Rome v. United States, 446 U.S. 156, 172 
(1980) (emphasis in original); accord Lopez v. Monterey 
County, 119 S. Ct. 693, 703 (1999) (“once a jurisdiction has 
been designated, [§ 5 of] the Act may guard against both 
discriminatory animus and the potentially harmful effect of 
neutral laws in that jurisdiction”) (emphasis in original).

In defining the “effect” prohibited by § 5 as a retrogressive 
one, the Court carefully preserved the vitality o f the 
“purpose” prong to reach any voting change motivated by 
racially discriminatory animus: “We conclude . . .  that such 
an ameliorative new legislative apportionment cannot violate 
§ 5 unless the new apportionment itself so discriminates on 
the basis of race or color as to violate the Constitution.” Beer 
v. United States, 425 U.S. 130, 141 (1976).

Beer construed the word “effect” in § 5 to mean only a 
retrogressive impact. Because the Court took care to 
preserve the possibility that a discriminatory purpose could 
motivate a voting change that creates no retrogression, Beer 
does not limit the universe of voting changes “denying or 
abridging the right to vote on account of race or color” only 
to those that involve retrogression. Accord City o f  Richmond 
v. United States, 422 U.S. 358, 378-79 (1975) (“annexation 
proved to be [animated by a discriminatory purpose] and not

5

proved to have a justifiable basis is forbidden by § 5, 
whatever its actual effect may have been or may be”); City o f 
Port Arthur v. United States, 459 U.S. 159, 168 (1982) (an 
electoral scheme that “might otherwise be said to reflect the 
potential strength of the minority community . . .  would 
nevertheless be invalid if adopted for racially discriminatory 
purposes”).

Based on this solid foundation, this Court, in City o f 
Pleasant Grove v. United States, 479 U.S. 462 (1987) and 
Busbee v. Smith, 459 U.S. 1166 (1983), rejected voting 
changes that were demonstrated to be infected with a racially 
discriminatory purpose although they lacked a retrogressive 
effect. The Court’s rejection of preclearance in both cases 
could only have been based on the conclusion that § 5 bars 
preclearance of voting changes adopted with racially discrim­
inatory purpose even if the effect is non-retrogressive, since 
the trial courts in both cases found no retrogression. See City 
o f Pleasant Grove v. United States, 568 F. Supp. 1455, 1458- 
59 (D.D.C. 1983) (rejecting argument by covered jurisdiction 
that annexation could have no discriminatory purpose 
because it had no discriminatory effect); Busbee v. Smith, 
549 F. Supp. 494, 516 (D.D.C. 1982) (“the voting plan does 
not have a discriminatory effect, as that term has been 
construed under the Voting Rights Act”) (citations omitted).

The practical application of the statute makes clear why 
“purpose” in § 5 encompasses any racially discriminatory 
purpose to deny or abridge the right to vote regardless of 
whether the enacting body intends retrogression. If 
“purpose” were limited to “retrogressive intent,” the purpose 
and effect prongs would cover virtually the same set of 
voting changes. Voting changes that “hold the line” on 
minority electoral participation, even if that line is held at a 
deliberately and discriminatorily low level, would be 
required to be precleared, even if they were adopted with 
blatantly racist intent.

Put another way, limiting “purpose” to purpose to 
retrogress elevates to nearly dispositive significance the 
“effect” factor in the analysis under Village o f Arlington



6

Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 
(1977). The Court has made clear in this case that the 
Arlington Heights analysis should guide the § 5 inquiry into 
whether a voting change has the purpose of denying or 
abridging the right to vote on account o f race or color. Reno 
v. Bossier Parish Sch. Bd., 520 U.S. 471, 488-89 (1997); 
App. 48a (“Bossier / ”). The effect of a voting change— 
whether it is positive, negative or neutral in its impact on 
racial minorities—is a salient factor in determining whether 
the change was adopted with a racially discriminatory intent. 
Impact, however, ‘“ is not the sole touchstone of an invidious 
racial discrimination.” ’ Arlington Heights, 429 U.S. at 265, 
(quoting Washington v. Davis, 426 U.S. 229, 242 (1976)). 
Limiting “purpose” to “intent to retrogress” would effectively 
limit the Arlington Heights inquiry to the “effect” factor.

Limiting “purpose” to “intent to retrogress” also may 
foreclose meaningful preclearance review of voting changes 
that clearly are subject to preclearance under § 5 but that do 
not lend themselves readily to vote dilution or other 
mathematical analyses. See, e.g., Dougherty County Bd. o f 
Educ. v. White, 439 U.S. 32 (1978) (change in leave policies 
for employees who work in political campaigns is subject to 
§ 5 preclearance); Hadnott v. Amos, 394 U.S. 358 (1969) 
(same with respect to change in filing provisions for 
independent candidates). If the effect of each change were to 
become essentially dispositive, because the search for 
discriminatory purpose was limited to a search for intent to 
retrogress, it is unclear what proof would be probative in a 
§ 5 declaratory judgment action seeking preclearance of this 
type of change.

For all of these reasons, the simplest and most direct under­
standing of the plain language of § 5 is also the correct one. 
A voting change adopted with the purpose of discriminating 
on the basis of race or color should be denied preclearance.

7

II. THE COVERED JURISDICTION BEARS THE 
BURDEN OF PROOF TO SHOW THAT ITS 
DISTRICTING PLAN WAS ENACTED 
WITHOUT A DISCRIMINATORY PURPOSE.

This Court repeatedly has ruled that the covered 
jurisdiction bears the burden of proof, i.e., the risk of non­
persuasion, in a § 5 declaratory judgment action on the issue 
of whether a voting change was animated by a racially 
discriminatory purpose. This principle is rooted in the terms 
of § 5, which require the covered jurisdiction to take the 
initiative to file the declaratory judgment action or 
administrative preclearance request for a ruling that the 
voting change “does not have the purpose and will not have 
the effect of denying or abridging the right to vote on account 
of race or color.” 42 U.S.C. § 1973c, App. 244a-245a 
(emphases added). The requirement that the covered juris­
diction carry the burden of proof also is supported 
specifically by the history of § 5, as well as the more general 
framework for allocating burdens of proof in civil litigation.

A. In Katzenbach, this Court upheld the constitutionality 
of the Voting Rights Act “putting the burden of proof on the 
areas seeking relief’ under § 5 in the form of a declaratory 
judgment preclearing a voting change. 383 U.S. at 335. The 
Court has elaborated that “[i]t is well established that in a 
declaratory judgment action under § 5, the plaintiff State has 
the burden of proof,” because “[t]he very effect of § 5 was to 
shift the burden of proof with respect to racial discrimination 
in voting.” Georgia v. United States, 411 U.S. 526, 538 & 
n.9 (1973).

Because § 5 “is predicated on the congressional finding that 
there is a risk that covered jurisdictions may attempt to cir­
cumvent the protections afforded by the Act, § 5 incorpor­
ates procedural protections to avoid evasion including the 
fact that “the burden of proof (the risk o f non-persuasion) is 
placed upon the covered jurisdiction.” McCain v. Lybrand, 
465 U.S. 236, 257 (1984). Indeed, the Court has identified 
the “shift” in the burden of proof— from a plaintiff in the usu­
al case challenging state action as violative of the Constitu­



8

tion to the covered jurisdiction in a § 5 action showing that a 
proposed voting change is non-discriminatory—as a respect 
in which § 5 reaches more broadly than the Fifteenth 
Amendment itself. Beer, 425 U.S. at 147-48.

The rule that the burden of proof rests with the covered 
jurisdiction is the same for consideration of both the “effect” 
and “purpose” prongs of § 5: “Under § 5, the [covered jur­
isdiction] bears the burden of proving lack of discriminatory 
purpose and e f f e c t C i t y  o f Rome, 446 U.S. at 183 n.18 
(emphasis added) (citations omitted). Accord McDaniel v. 
Sanchez, 452 U.S. 130, 137 (1981). Where the Court has 
faced the issue of purpose alone, it has stressed that the 
covered jurisdiction “has the burden of proving the absence 
of discriminatory purpose respecting voting.” City o f 
Pleasant Grove, 479 U.S. at 472 n.12 (emphasis omitted).

B. Congress carefully and deliberately placed the burden 
of proof on covered jurisdictions. The House Report on the 
reauthorization of the Voting Rights Act in 1970 and the 
Senate Report on the 1982 reauthorization reflected on the 
burden of proof in light of the Court’s decision in Allen v. 
State Bd. o f  Elections, 393 U.S. 544 (1969):

The decision underscores the advantage section 5 
produces in placing the burden of proof on a covered 
jurisdiction to show that a new voting law or procedure 
does not have the purpose and will not have the effect of 
discriminating on the basis of race or color.. . .  Failure to 
continue this provision of the act would jettison a vital 
element of the enforcement machinery. It would reverse 
the burden of proof and restore time-consuming litigation 
as the principal means of assuring the equal right to vote.

H.R. Rep. No. 91-397, at 8 (1969), quoted in Joint Views of 
Ten Members of the [Senate] Judiciary Comm., 91st Cong., 
2nd Sess., 115 Cong. Rec. 5521 (1970),2 and Report of the

2 “Those ten members of the Committee, including Senators 
Hugh Scott and Robert Griffin, sponsored the Scott-Hart extension 
of the Act which became law. The Supreme Court has cited their 
views as the committee report on the bill which was enacted.

Comm, on the Judiciary on S.1992, S. Rep. No. 97-417, at 7 
(1982).

When Congress first reauthorized the Voting Rights Act, it 
specifically rejected proposed amendments which would 
have placed the burden of proof on the Attorney General. 
See 116 Cong. Rec. 6515-22 (1970). See also Hearings on 
H.R. 4249, H.R. 5538, and Similar Proposals Before 
Subcomm. No. 5 o f the House Comm, on the Judiciary, 91st 
Cong. 289-90 (1969). Congress’ careful consideration and 
rejection of these provisions demonstrate its unmistakable 
intent to place the burden on the covered jurisdictions. See, 
e.g., 116 Cong. Rec. 6168 (1970); 116 Cong. Rec. 6624-25, 
6644(1970).

Congress intended that the burden of proof be on the 
covered jurisdiction and so provided in the Act. Its conclu­
sion is owed deference because it is clear and constitutional, 
as this Court held in Katzenbach. The result Congress 
reached also is sound because it corresponds with the 
principles that courts and commentators routinely invoke to 
determine who should have the risk of nonpersuasion.

C. Even if it were not already well-established that cov­
ered jurisdictions bear the burden of proof in § 5 declaratory 
judgment actions, general principles governing the allocation 
of burdens of proof would support the determination made by 
Congress to place that burden on covered jurisdictions in § 5 
actions. Generally speaking, the risk of nonpersuasion falls 
on the plaintiff, whether the action seeks damages, injunctive 
relief, or a declaratory judgment. See 2 McCormick on 
Evidence § 337 at 427 (4th ed. 1992). Indeed, a “well- 
developed line of authority . . . holds that a plaintiff in a 
declaratory action who voluntarily goes forward and attempts 
to prove his case will be held to have assumed the risk of 
nonpersuasion.” 10B Charles Alan Wright, Arthur R. Miller

9

Seven of the ten Senators had been sponsors in 1965 of S.1564, 
the bill enacted as the Voting Rights Act.” Report of the Comm, 
on the Judiciary on S.1992, S. Rep. No. 97-417, at 7 n.10 (1982).



10

& Mary Kay Kane, Federal Practice and Procedure § 2770, 
at 679-80 (1998) (footnote omitted).

No one theory or rule circumscribes the allocation of the 
risk of nonpersuasion where the burden of proof is not 
already determined by statute, as it clearly is in § 5. See 9 
John Henry Wigmore, Evidence in Trials at Common Law 
§ 2486, at 292 (Chadboum rev. 1981). In allocating this 
burden, courts weigh the character of the issues, the 
pleadings, and applicable substantive law. Over time, a 
framework has emerged that considers factors which can be 
grouped into the categories of probability, fairness, and 
policy. See Basic Inc. v. Levinson, 485 U.S. 224, 245 (1988) 
(citing considerations of “fairness, public policy, and 
probability” in applying presumption of reliance in fraudulent 
misrepresentation securities case); Fleming James, Jr. and 
Geoffrey C. Hazard, Jr., Civil Procedure § 7.8 (3rd ed. 1985); 
2 McCormick § 337, at 432; 21 Charles Alan Wright and 
Kenneth W. Graham, Federal Practice and Procedure 
§ 5122 (1977). Each of the three prongs—fairness, 
probability and policy—supports Congress’ determination to 
place the burden of proof in § 5 declaratory judgment actions 
on the covered jurisdictions.

The “fairness” factor involves consideration of which party 
has the best access to information and control over the evi­
dence. See James at § 7.8; 2 McCormick § 337, at 429-30. In 
a § 5 preclearance action, there is no question that the 
covered jurisdiction is in the best position to bring forward 
the evidence that is probative on Arlington Heights factors. 
This evidence involves not only the anticipated effect of the 
voting change, but the historical background of the adoption 
of the change, the specific sequence of events leading to the 
decision, consistency with—or departures from—ordinary 
procedures and substantive considerations, and contemporary 
statements o f participants in the process. Arlington Heights, 
429 U.S. at 267-68.

This superior access to probative evidence was part of the 
basis for allocating the burden of proof to the covered 
jurisdiction seeking a § 5 declaratory judgment. During the

11

1970 reauthorization debate, Senator Fong explained: “The 
. . .  burden of proof is placed upon the jurisdiction to show 
that the new voting law or procedure does not have the 
purpose or effect of discriminating. Those who know the law 
or procedure best and what motivated its passage must come 
forward and explain it.” 116 Cong. Rec. 6154 (1970). 
Representative McCulloch, ranking minority member of the 
House Judiciary Committee, explained during the floor 
debate: “The burden of proof under section 5 is rightfully 
placed upon the jurisdiction to show that the new voting law 
or procedure is not discriminatory. As in tort law, when 
circumstances give rise to an inference that there has been 
misconduct, the party that has access to the facts is called 
upon to rebut the inference and show that its conduct was 
proper.” 115 Cong. Rec. 38486 (1969).

The second general factor considered in allocating burdens 
of proof is a judicial estimate of the probabilities, which 
involves deciding which party’s contention is the more 
extreme departure from the norm. See James at § 7.8; 2 
McCormick § 337, at 430. In a § 5 declaratory judgment 
action, the covered jurisdiction is before the district court 
because Congress has found that jurisdictions with specific 
characteristics had deliberately tried to keep African- 
Americans and other minorities from the effective exercise of 
the franchise. Katzenbach, 383 U.S. at 308-15. Since 
Congress found that voting changes proffered by such a 
jurisdiction are relatively likely to be discriminatory, the 
burden was placed on the covered jurisdiction to show that a 
particular proposed change is not.

Policy considerations constitute the third factor in the 
allocation of burdens of proof. Congress considered policy 
matters in determining this question for purposes of § 5. 
First, as noted above, based on the history of discrimination 
in voting practices and the failure of case-by-case 
adjudication to stem Fifteenth Amendment violations in 
voting, see supra 3-4, Congress placed the ultimate burden of 
persuasion on covered jurisdictions. Second, as this Court 
has recognized, such a statutory scheme is fundamentally fair



12

to covered jurisdictions. See Katzenbach, 383 U.S. at 331-32 
(discussing bailout provisions of the Act). See also infra Part
D. As enacted, § 5’s procedures and burdens parallel those 
that covered jurisdictions must face in order to lift § 5 
coverage entirely. A state or political subdivision defined 
within the Act as a jurisdiction required to seek preclearance 
of voting changes under § 5 can “bail out” of that coverage 
through a declaratory judgment procedure under § 4 of the 
Voting Rights Act, 42 U.S.C. § 1973b(a). This Court has 
made clear that the burden of proof on a covered jurisdiction 
in order to obtain an end to the preclearance requirement was 
not intended to be onerous: “[A]n area need do no more than 
submit affidavits from voting officials, asserting that they 
have not been guilty of racial discrimination through the use 
of tests and devices during the past five years, and then refute 
whatever evidence to the contrary may be adduced by the 
Federal Government.” Katzenbach, 383 U.S. at 332 
(footnote omitted).3

Nearly 35 years have passed since the adoption o f the 
Voting Rights Act of 1965. Discriminatory efforts to keep 
African-Americans and other minorities from being heard at 
the polls are certainly less overt and no doubt less frequent 
than they were when this Court decided Katzenbach. 
Congress has not changed either the coverage standard or the 
burden of proof allocation under § 5, based on its judgment 
that the preclearance process, with its burden of proof on the 
covered jurisdiction, remains important to the enforcement of 
the Fifteenth Amendment and the equitable availability of the 
franchise. The judgment of the particular means to be 
employed to achieve the legitimate and important end of 
making the promise of the Fifteenth Amendment a reality is 
the province of Congress. Nothing in the language it has 
used or the history of the Act suggests that Congress thought 
some different allocation of the burden of proof would result 
where a voting change is non-retrogressive.

3 The current Voting Rights Act requires proof that the covered 
jurisdiction has not engaged in racial discrimination in voting for 
the past 10 years. 42 U.S.C. § 1973b(a).

13

D. The juxtaposition of the two questions on which the 
Court directed supplemental briefing suggests an interest in 
having the parties address whether it is fair and realistic to 
place the burden of proof on the covered jurisdiction to 
obtain a § 5 declaratory judgment for a voting change that is 
neutral or ameliorative in effect. Given the sequence of proof 
that unfolds in a § 5 preclearance declaratory judgment 
action, as a practical matter, Congress and the Court have 
been correct and reasonable in allocating the burden of proof 
to the covered jurisdiction in all § 5 cases.

As the plaintiff, the covered jurisdiction has the burden of 
production in its case in chief to put on evidence that its 
proposed voting change does not have a racially discrimin­
atory purpose or effect. In a case such as this, the covered 
jurisdiction can make out a prima facie case on the issue of 
retrogression, and therefore the “effect” prong of § 5, by 
putting into evidence statistics showing the racial 
composition of its proposed election districts compared to 
those in its existing plan.

The question then becomes what evidence the covered 
jurisdiction must produce concerning the “purpose” of its 
proposed voting change in order to survive a motion for 
judgment as a matter of law at the close of its case. See Fed. 
R. Civ. P. 52(c). In its first opinion in this case, the district 
court described the sequence of proof that it expects:

To make out a prima facie case for preclearance, the 
School Board must demonstrate that the proposed change 
will have no retrogressive effect, and that the change was 
undertaken without a discriminatory purpose. Proof of 
nondiscriminatory purpose must include “legitimate 
reasons” for settling on the given change. Richmond v. 
United States, 422 U.S. 358, 375 (1975).

App. 105a. When the covered jurisdiction, through credible 
evidence, demonstrates “objectively verifiable, legitimate 
reasons” for the proposed non-retrogressive voting change in 
its case in chief, City o f Richmond, 422 U.S. at 375, it should



14

survive a motion for judgment as a matter of law at the close 
of its case.

Just as in the bailout procedure, the burden of production 
then shifts to the Attorney General and any intervening 
defendants to point to evidence that racial animus was a 
motivating factor in the adoption o f the voting change. See 
Katzenbach, 383 U.S. at 332. If the defendants fail to come 
forward with any evidence, and if the evidence of non-racial 
purpose offered by the covered jurisdiction is legitimate and 
credible, the covered jurisdiction should prevail and be 
granted preclearance. If the defendants come forward with 
evidence from which racial intent can be inferred, within the 
framework contemplated by Arlington Heights, the three- 
judge court must make findings on whether intent to 
discriminate was a motivating purpose in the adoption of the 
voting change. See App. 103a-104a. If the covered
jurisdiction has not succeeded in refuting the proof of racial 
intent or if the evidence on discriminatory purpose is in 
equipoise, preclearance should be denied.

This simple and sound sequence of proof is very fair to 
covered jurisdictions. It is the covered jurisdiction, after all, 
that knows why it wants the voting change. If its actual 
reasons are sound, non-racial, and legitimate, it should take 
no substantial effort for the covered jurisdiction to explain 
them. All that the initial burden of production usually 
requires is that the jurisdiction repeat in court its analysis, 
reasoning, and judgment in originally developing and 
adopting the proposed change.

By placing on the Attorney General and other defendants 
the burden of initially identifying evidence of racial intent, 
the presentation in § 5 cases of evidence of discriminatory 
purpose under the Arlington Heights framework is logical 
and fair. The Attorney General and other defendants who 
wish to introduce evidence from which an inference of racial 
purpose may be drawn should have to shape the case on 
racial intent so that covered jurisdictions know what evidence 
they must rebut. In other words, the covered jurisdiction

15

should not have to come forward in its case in chief and 
negate each factor in the Arlington Heights framework.

This case demonstrates the operation of this approach. The 
Bossier Parish School Board asserted a variety of reasons at 
various points in this proceeding for its 1992 districting plan. 
By the time of trial, it claimed that it adopted the same plan 
as the Police Jury because that plan eliminated consideration 
of precinct splitting and maximized the prospects for 
preclearance. See App. 106a-108a. The School Board 
established a prima facie case by articulating non-racial 
reasons that, if true and proven, could be legitimate reasons 
for adopting the plan.

The Attorney General and Price intervenors then produced 
evidence to demonstrate, however, that these were not the 
real reasons the plan was adopted. That evidence 
demonstrated that the School Board declined to seek precinct 
splits to accommodate a districting plan that did not dilute 
minority voting strength, even though it had previously 
contemplated doing so for other reasons.4 The evidence also 
showed that the School Board intended in its redistricting to 
adopt a plan different from the Police Jury, even after the 
Police Jury obtained preclearance. The Attorney General and 
the intervening defendants also presented extensive evidence 
of the School Board’s historical racial discrimination in 
voting; its strong motivation to avoid meaningful 
representation of majority black communities in order to 
sustain its resistance to school desegregation; and its 
departures from ordinary districting principles and 
procedures in the adoption of the 1992 plan.5 This evidence 
surely presented a factual question as to whether the School 
Board’s adoption of the 1992 plan was motivated by a 
racially discriminatory intent.

4 The evidence on these issues is reviewed in the Brief of 
Appellants George Price, et al., (“Price Brief’) at 33-37 and in the 
Reply Brief of Appellants George Price, et al., (“Price Reply 
Brief’) at 11-14.

5 Price Brief at 27-40; Price Reply Brief at 10-19.



16

The School Board has the burden of proving that its 
claimed non-racial reasons for adopting the plan were 
genuine and legitimate and that the plan was not motivated 
by the racial animus supported by defendants’ proof. The 
District Court’s decision, however, is plainly inconsistent 
with this allocation of the risk of nonpersuasion. While the 
court below found “powerful support for the proposition that 
[the Board] in fact resisted adopting a redistricting plan that 
would have created majority black districts,” including its 
history of resistance to school desegregation, App. 6a-7a, and 
“a tenacious determination to maintain the status quo,” id. at 
7a, it nevertheless granted preclearance. The majority below 
did so because it found the proof of discriminatory purpose 
insufficient “to rebut the School Board’s prima facie  showing 
that it did not intend retrogression.” Id. (emphasis added). 
But, as demonstrated in Section I above, this was not the 
proper inquiry because the purpose prong of § 5 extends to a 
discriminatory but non-retrogressive purpose. The District 
Court failed to analyze whether the School Board had 
established that it did not have a discriminatory, though non- 
retrogressive, purpose. On this record, it is clear that the 
School Board did not meet this burden.

17

CONCLUSION

For these reasons and those set forth in the original briefs in 
this matter, this Court should reverse the judgment below.

Respectfully submitted,

Barbara R. Arnwine 
Thomas J. Henderson 
Edward Still 

Lawyers’ Committee For 
Civil Rights Under Law 
1401 New York Ave., N.W. 
Suite 400
Washington, D.C. 20005 
(202) 662-8600

* Counsel of Record

Patricia A. Brannan* 
John W. Borkowski 

Hogan & Hartson l.l.p. 
555 Thirteenth Street, N.W 
Washington, D.C. 20004 
(202) 637-8686

Counsel fo r  Appellants 
George Price, et al.