Reno v. Bossier Parish School Board Reply Brief for Federal Appellant

    NOS. 95-1455 & 95-1508

IN THE SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1996

JANET RENO, ATTORNEY GENERAL 
OF THE UNITED STATES,

APPELLANT, and

GEORGE PRICE, ETAL.,

APPELLANTS,

V.

BOSSIER PARISH SCHOOL BOARD,

APPELLEE.

CERTIFICATE OF SERVICE

It is hereby certified that all parties required to be served have been 
served three copies of the Reply Brief of Appellants George Price, et al. via
first-class mail, postage prepaid, this 21st day of October.

See Attached Service List

TVALTER A. SMITH, JR., ESQUIRE

O ctober 21, 1996



WALTER DELLINGER 
ACTING SOLICITOR GENERAL 
DEPARTMENT OF JUSTICE 
WASHINGTON, D.C. 20530

JAMES J. THORNTON 
OFFICE OF JAMES J. THORNTON, 

ATTORNEY-AT-LAW 
642 STONER AVENUE 
SHREVEPORT, LA 71101

MICHAEL A. GARVIN
SHAW, PITTMAN, POTTS & TROWBRIDGE
2300 N STREET, N.W.
WASHINGTON, D.C. 20037



Nos. 95-1455 and 95-1508

i n  tljr Supreme Court of tlje (Lliutcb States
October Term , 1995

Janet Reno, Attorney General of the 
United States, appellant

v.

Bossier Parish School Board

George Price, et al., appellants

Bossier Parish School Board

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA

REPLY BRIEF FOR THE FEDERAL APPELLANT

W a l t e r  D e l l in g e r  
Acting Solicitor General 
Departm ent o f  Justice 
Washington, D.C. 20530-0001 
(202) 51U-2217



TABLE OF AUTHORITIES

Cases: Page
Allen v. State Bd. of Elections, 393 U.S. 544

(1969).........................................................................  4, 18
Beer v. United States, 425 U.S. 130 (1976)...... 14, 16, 17
Brown v. General Services Administration, 425

U.S. 820 (1976) .............................. -...........................  17
Busbee v. Smith, 549 F. Supp. 494 (D.D.C. 1982),

aff’d, 459 U.S. 1166 (1983) ........................................ 2
Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984)............................  15
Citizens for a Better Gretna v. City of Gretna,

834 F.2d 496 (5th Cir. 1987), eert. denied, 492
U.S. 905 (1989)................................. .........................  7

City of Lockhart v. United States, 460 U.S. 125
(1983)..........................................................................  19

City of Mobile v. Bolden, 446 U.S. 55 (1980) ............  4
City of Pleasant Grove v. United States, 568

F. Supp. 1455 (D.D.C. 1983)...................................... 2
City of Port Arthur v. United States, 517 F. Supp.

987 (D.D.C. 1981), aff’d, 459 U.S. 159 (1982) ........... 3
Columbus Bd. of Educ. v. Penick, 443 U.S. 449

(1979) .................................................................... ••••• 4
Dougherty County Bd. of Educ. v. White, 439

U.S. 32 (1978) .....................................................    15
Garza v. County of Los Angeles, 918 F.2d 763 

(9th Cir. 1990), cert, denied, 498 U.S. 1028 (1991) ... 5
Georgia v. United States, 411 U.S. 526 (1973) . 8, 13-14, 15 
International Brotherhood of Teamsters v.

United States, 431 U.S. 324 (1977) .......................... 5
Johnson v. DeGrandy, 114 S. Ct. 2647 (1994) .......... 19
Miller v. Johnson, 115 S. Ct. 2475 (1995).... . 2, 5, 6, 19

(I)



II

Cases—Continued: Page
Morse v. Republican Party of Virginia, 116

S. Ct. 1186 (1996) ....................................................  15, 18
Personnel Admin, v. Feeney, 442 U.S. 256

(1979) ................................. ........................................  4
Pullman-Standard v. Swint, 456 U.S. 273 (1982) ... 4, 8
Rogers v. Lodge, 458 U.S. 613 (1982)............  1, 2, 3, 4, 18
Rybicki v. State Bd. of Elections, 574 F. Supp.

1082 (N.D. 111. 1982) ..................................................  5
Shaw v. Hunt, 116 S. Ct. 1894 (1996).............  2, 5, 6, 19
Texas v. United States, No. 94-1529 (D.D.C.

Sept. 27, 1994), summarily aff’d, 115 S. Ct. 1397
(1995) .......................................................................... 18

Thornburg v. Gingles, 478 U.S. 30 (1986) .. 7, 8, 14, 17, 18
United States v. Board of Comm’rs, 435 U.S. 110

(1978) .......................................................................... 16
Village of Arlington Heights v. Metropolitan

Housing Dev. Carp., 429 U.S. 252 (1977) ....  2, 4, 5, 9, 10
Washington v. Davis, 426 U.S. 229 (1976) ................ 4
Westwego Citizens for Better Gov’t v. City of

Westwego, 872 F.2d 1201 (5th Cir. 1989).................  7
White v. Regester, 412 U.S. 755 (1973) ..................  14, 16
Will v. Michigan Dep’t of State Police, 491 U.S. 58

(1989) ..........................................................................    I?
Yick Wo v. Hopkins, 118 U.S. 356 (1886) ................  5

Statutes and regulation:
Voting Rights Act of 1975, 42 U.S.C. 1973 et seq.:

§ 2, 42 U.S.C. 1973 ....................  3, 14, 15, 17, 18, 19, 20
§ 4, 42 U.S.C. 1973b ............................................... 16
§ 4(b), 42 U.S.C. 1973b(b) .....................................  3, 16
§ 4(F)(i), 42 U.S.C. 1973b(F)(i) ............................ 16
§ 5, 42 U.S.C. 1973c .... 3, 5, 6, 13, 14, 15, 16, 17, 18, 20
§ 12, 42 U.S.C. 1973j ........................ ......-.............  18
§ 12(f), 42 U.S.C. 1973j(f) ....................................  18

28 U.S.C. 2284(a) .......................................................... 18
28 C.F.R. 51.55(b)(2) ...................................................  i5



Ill

Miscellaneous: Page
S. Rep. No. 417, 97th Cong., 2d Sess. (1982).............  15, 16



3fn tl)t Supreme Court of tfjr Umtcb H>tate£
October Term , 1995 

No. 95-1455
Janet R eno, Attorney General of the 

United States, appellant

v.

Bossier Parish School Board

No. 95-1508
George Price, et al., appellants

v.

Bossier Parish School Board

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA

REPLY BRIEF FOR THE FEDERAL APPELLANT

1. As we explained in our opening brief, the district 
court improperly refused to consider both the racially 
dilutive impact of the redistricting plan that the Bossier 
Parish School Board (Board) adopted and the Board’s 
history of discrimination—two important types of circum­
stantial evidence bearing on the Board’s purpose. See 
Rogers v. Lodge, 458 U.S. 613, 618, 623-626 (1982). With 
respect to evidence of a historical pattern of discrimina­
tion, appellee contends (Bd. Br. 29) that this Court in

(1)



2

Shaw v. Hunt, 116 S. Ct. 1894 (1996) (Shaw II), and Miller 
v. Johnson, 115 S. Ct. 2475 (1995), “viewed as irrelevant” a 
covered jurisdiction’s “well-documented history of racial 
discrimination.” That contention is plainly incorrect. In 
each of those cases, the Court concluded that the 
particular record before the three-judge district court did 
not support an inference of discriminatory purpose. See 
M iller, 115 S. Ct. at 2492; Shaw II, 116 S. Ct. at 1904. It 
did not reject the well-established line of precedent 
holding that evidence of past racial discrimination is 
directly relevant to a governmental actor’s motivation in 
adopting a challenged policy. See, e.g., Village of 
Arlington Heights v. Metropolitan Housing Dev. Corp., 
429 U.S. 252, 267 (1977) (factors relevant to the purpose 
inquiry include the “historical background of the 
decision”—“particularly if it reveals a series of official 
actions taken for invidious purposes”); Rogers, 458 U.S. at 
624-625 (“Evidence of historical discrimination is relevant 
to drawing an inference of purposeful discrimination.” ); 
Busbee v. Smith, 549 F. Supp. 494 (D.D.C. 1982), aff’d, 459 
U.S. 1166 (1983) (same); City of Pleasant Grove v. United 
States, 568 F. Supp. 1455, 1458 (D.D.C. 1983) (same).

With respect to the dilutive effect of the challenged plan, 
appellee first contends (Bd. Br. 32-33) that “the district 
court quite clearly, thoroughly and directly considered 
the adopted redistricting plan’s effect on minority voters,” 
and later suggests (id. at 33, 35) that the district court 
simply presumed that the Police Jury plan adopted by the 
Board had a dilutive impact. Both of those contentions are 
incorrect. As to the former, appellees cannot point to any 
discussion of the plan’s dilutive impact in the majority 
opinion below. As to the latter, the district court nowhere 
presumed that appellee’s plan had a dilutive effect on mi­
nority voters.



3

Appellee states (Bd. Br. 33, 34, 35, 36) that “it is 
assumed, due to the racial polarization and prior dis­
crimination that renders the jurisdiction subject to 
Section 5 preclearance, that such racially-charged elec­
toral conditions exist and white majority districts will 
thus have a foreseeable impact.” The district court, 
however, expressly declined to consider such “section 2 
evidence” (J.S. App. 23a, 24a),1 and thus eliminated from its 
analysis an important category of evidence.2

1 Contrary to appellee’s suggestion, moreover, racially-polarized 
voting patterns are not among the factors that trigger Section 5 
coverage. See 42 U.S.C. 1973b(b).

2 Appellee places substantial reliance (Bd. Br. 6, 8, 27, 28, 31) on 
the district court’s statement that it did not consider “evidence 
relevant only to the section 2 inquiry.” J.S. App. 9a n.6 (emphasis 
added). The district court, however, clearly refused to address any 
evidence regarding the dilutive impact of the Board’s redistricting 
plan—a category of evidence that this Court has held to be relevant to 
the issue of discriminatory purpose, as well as to Section 2. See Rogers 
v. Lodge, supra.

Appellee also contends (Bd. Br. 30-31, 32 n.25) that the United 
States had “drawn a clear distinction between ‘section 2 evidence’ [such 
as evidence of racial bloc voting] and evidence ‘independently relevant’ 
to Section 5 purposes [such as evidence of historical discrimination].” 
Bd. Br. 32 n.25. We drew no such distinction. The heading of 
the relevant section of our post-trial brief made clear our position that 
“ [t]he Section 2 evidence presented in this case is independently rele­
vant to material issues outside the Section 2 inquiry.” Gov’t Post-Trial 
Brief at 36. In any event, the district court clearly did not limit its 
exclusion of “section 2 evidence” to evidence of racial bloc voting, nor 
would that limited exclusion have been warranted given the relevance 
of bloc voting to the question of foreseeable discriminatory effects. See, 
e.g., City of Port Arthur v. United States, 517 F. Supp. 987, 1022 
(D.D.C. 1981) (three-judge court) (“Knowing that City politics were 
seriously polarized by race, the officials responsible for developing the 
[challenged electoral] plan must have realized the improbability of the 
black population electing more than one candidate of its choice.”), a ff’d, 
459 U.S. 159 (1982).



4

Appellee suggests (Bd. Br. 33) that a court is under no 
obligation to consider evidence that a redistricting plan 
has a racially discriminatory impact if the court “ cut[s] 
directly to the dispositive question” of what actually moti­
vated the decisionmaker. In appellee’s view, evidence of 
vote dilution “tells us why a black majority district is 
needed to elect black candidates, but it says nothing about 
why a black majority district was not created.” Id. at 34- 
35. This Court has squarely rejected that proposition.

Government officials rarely provide direct evidence of 
their discriminatory intentions. Because the Voting 
Rights Act is “aimed at the subtle[] as well as the obvious” 
discriminatory voting practices, Allen  v. State Bd. of Elec­
tions, 393 U.S. 544, 565 (1969), courts must conduct “a sen­
sitive inquiry into such circumstantial and direct evidence 
of intent as may be available.” Arlington Heights, 429 
U.S. at 266. This Court has repeatedly held that evidence 
of an action’s discriminatory impact is an important cate­
gory of circumstantial evidence bearing on intent. See, 
e.g., Rogers, 458 U.S. at 623-624; Washington v. Davis, 426 
U.S. 229,242(1976); City of Mobile v. Bolden, 446 U.S. 55, 
70 (1980); Pullman-Standard v. Swint, 456 U.S. 273, 289 & 
n.18 (1982); Columbus Bd. o f Edue. v. Penick, 443 U.S. 449, 
464-465 (1979).

“Frequently the most probative evidence of intent will 
be objective evidence of what actually happened rather 
than evidence describing the subjective state of mind of 
the actor. For normally the actor is presumed to have 
intended the natural consequences of his deeds.” Wash­
ington v. Davis, 426 U.S. at 253 (Stevens, J., concurring). 
Accordingly, a governmental action with foreseeably 
harmful effects on a discrete group supports an inference 
that those effects were intended. See Personnel Admin. 
v. Feeney, 442 U.S. 256, 279 n.25 (1979) (where adverse 
consequences of a law on an identifiable group are inevita­



5

ble, “a strong inference that the adverse effects were de­
sired can reasonably be drawn”).

In adjudicating purposeful dilution cases, the courts 
have thus looked to whether a districting plan’s discri­
minatory effect was understood by, or foreseeable to, the 
governmental body that enacted it. See, e.g., Garza v. 
County of Los Angeles, 918 F,2d 763, 768 n.l (9th Cir. 
1990), cert, denied, 498 U.S. 1028 (1991); Rybicki v. State 
Bd. of Elections, 574 F. Supp. 1082, 1108-1109 (N.D. 111. 
1982) (three-judge court). The mere existence of a history 
of discrimination and a present discriminatory effect does 
not ordinarily compel a finding of discriminatory purpose. 
But see Arlington Heights, 429 U.S. at 266 (“ Sometimes a 
clear pattern, unexplainable on grounds other than race, 
emerges from the effect of the state action. ); Inter­
national Brotherhood of Teamsters v. United States, 431 
U.S. 324, 342 n.23 (1977) (observing, in a Title VII case, 
that “the company’s inability to rebut the inference of 
discrimination came not from a misuse of statistics, but 
from the inexorable zero”) (internal quotation marks 
omitted); Yick Wo v. Hopkins, 118 U.S. 356 (1886). Such 
evidence, however, is highly relevant to the intent inquiry. 
Here, the district court erred in refusing to consider how 
the Board’s awareness of the dilutive impact of the Police 
Jury plan bore on the question of intent.

Contrary to appellee’s contention (Bd. Br. 28-30), this 
Court’s decisions in Shaw II and Miller are consistent 
with that principle. In those cases, the Court deemed 
“insupportable” the Attorney General’s decision to inter­
pose Section 5 objections to particular congressional re- 
districting plans. Shaw II, 116 S. Ct. at 1904; M iller, 115 
S. Ct. at 2492. In neither case did the Court refuse to 
consider the effect of the redistricting plan at issue on 
minority voters. To the contrary, in each case the Court 
emphasized that the plan initially adopted by the legisla­



6

ture was ameliorative—that is, that the plan would have 
improved the opportunity for minority voters to elect their 
chosen candidates—and that there was no other “evidence 
of an intent to discriminate against minority voters.” 
M iller, 115 S. Ct. at 2483; see Shaw II, 116 S. Ct. at 1904; 
M iller, 115 S. Ct. at 2492-2493.3 The Court thus concluded 
that the only possible basis for the Attorney General’s 
objections must have been the States’ simple failure to 
draw ag many majority-minority districts as possible— a 
basis the Court found insufficient to warrant a finding of 
discriminatory purpose. See Shaw II, 116 S. Ct. at 1904; 
Miller, 115 S. Ct, at 2492. Here, by contrast, the plan 
adopted by the Board perpetuated the dilutive impact of the 
prior plan—under which no black candidate had ever been 
elected. SeeJ.S. App. 115a-116a ( f f  153-157).4 Selection of 
the Police Jury plan was intended to ensure that the 
existing dilution of minority voting strength would 
continue.

Appellee also contends (Bd. Br. 3; emphasis omitted) 
that “ [tjhere is no competent evidence of racial bloc voting 
in any local Bossier Parish elections.” That is untrue. A

3 Indeed, in concluding that North Carolina’s rejection of an 
alternative plan did not reflect a discriminatory purpose, the Court 
specifically relied on evidence that the State believed the alternative 
plan to be less protective of minority voting strength than the amelio­
rative plan that it adopted. See Shaw II, 116 S. Ct. at 1904 (quoting 
statement in State’s Section 5 submission that the second majority- 
minority district in the alternative plan “ ‘did not have an effective 
minority voting majority’ because it ‘depended on the cohesion of black 
and Native American voters, and no such pattern was evident’ and 
‘this plan dramatically decreased black influence’ in four other 
districts”).

4 The Board’s plan reduced the African-American voting-age 
population (VAP) in each of the two districts with the largest black 
VAP concentrations—from 42.1% to 40.9% in District Four and from 
36.9% to 36.1% in District Seven. J.A. 44, 47.



7

regression analysis of the only interracial parish-wide 
race for local office in recent years (the 1988 primary 
election for the 26th Judicial District Court) revealed a 
high degree of racial polarization: the analysis estimated 
that 79.2% of black voters supported the unsuccessful 
African-American candidate, while only 28.9% of white 
voters did so. J.S. App. 122a-123a (f  U 183-184); J.A. 113-115. 
It is appropriate to consider the results in such 
“exogenous” parish-wide elections where, as here, many 
districts contain too few precincts to perform a reliable 
ecological regression analysis for elections that are held 
in individual districts. See generally J.A. 114-121.5 The 
parties stipulated, moreover, that “ [o]f the 14 elections 
since 1980 in which black candidates have run against 
white candidates for a single-member district or for 
mayor, only two candidates have won.” J.S. App. 127a (f 
196).6

5 See Westwego Citizens for Better Gov’t v. City of Westwego, 872 
F.2d 1201, 1208-1210 (5th Cir. 1989); Citizens for a Better Gretna v. 
City of Gretna, 834 F.2d 496, 502 (5th Cir. 1987) (concluding that 
Thornburg v. Gingles, 478 U.S. 30 (1986), “suggests flexibility in the 
face of sparse data”), cert, denied, 492 U.S. 905 (1989).

6 Those two candidates (Jerome Darby in Police Jury District 10 
and Jeff Darby in Bossier City Council District 2) were elected under 
unique circumstances that do not detract from the broader pattern of 
racially-polarized voting in Bossier Parish. See Gingles, 478 U.S. at 
57. Those candidates were elected in districts that included substantial 
areas surrounding Barksdale Air Force Base—an atypical factor that 
reduced the racial polarization and increased comparative African- 
American voter turnout in those districts. J.S. App. 2a n.l, 117a-118a 
(HI 160-164), 120a (f 172), 127a (| 196). When that unique factor no 
longer obtained following the post-1990 census redistricting, Jeff Darby 
lost his seat to a white challenger. Id. at 120a (| 173). (Jerome Darby 
was not opposed for reelection. Id. at 118a-119a (f 165)). Nor do the 
results of the 1996 school board elections detract from the conclusion 
that significant polarization exists. Cf. Bd. Br. 5 & n.4. This Court



The record thus fully supports Judge Kessler’s con­
clusion that the Board’s adoption of the Police Jury plan 
“effectively excludes minority voters from the political 
process.” J.S. App. 41a. By refusing to consider this 
significant, racially dilutive impact, the district court did 
not simply “cut directly to the dispositive question” (Bd. 
Br. 33) of the Board’s intent. Rather, it excluded impor­
tant evidence from its inquiry into that question. In light 
of appellee’s burden of persuasion, see Georgia v. United 
States, 411 U.S. 526, 538 (1973), and the other strong 
indicia of discriminatory purpose in this case, that deter­
mination may well have made the difference in the district 
court’s decision. The judgment therefore cannot stand. 
See Pullman-Standard v. Swint, 456 U.S. 273,292 (1982).

2. Appellee stresses purported inadequacies of the 
NAACP plan proposed to the Board by appellant-interve- 
nor Price (Bd. Br. 2, 40-41, 47-48), and contends that “ [t]he 
Board was offered a choice between two alternative 
redistricting plans.” Id. at 40. The proper inquiry in this 
case, however, is whether the electoral plan that the Board 
did adopt—the Police Jury plan—was selected because of 
its foreseeable adverse effects on African-American vot­
ers. The merit o f the NAACP plan is not presented in this 
case, nor was that plan the only other alternative available 
to the Board when it made the decision at issue here.

denied appellee’s motion to supplement the record to include these 
election results. 116 S. Ct. 1540 (1996). Without being tested and 
placed in context, they can have little or no probative significance. 
They have not, for example, been subjected to the kind of expert 
analysis of racial polarization and turnout that the parties conducted 
regarding previous elections, see J.S. App. 122a-127a, and there has 
been no exploration of special circumstances that might bear on their 
probative value—including, for example, whether the pending litiga­
tion itself had any impact on the elections. See Gingles, 478 U.S. at 75- 
76 & n.37.



9

The Board had initially refused to adopt the Police 
Jury’s 1991 plan, even though that plan had received Sec­
tion 5 preclearance. Instead, it proceeded without haste to 
develop its own independent plan. That action was under­
standable; it is undisputed that the Police Jury and the 
School Board generally have different redistricting inter­
ests, and that ample time remained for the Board to draw 
its own plan before its first post-census election in 1994. 
J.S. App. 4a; id. at 72a (If 24). But as soon as the local 
NAACP presented its proposal, the Board abruptly 
changed course. Id. at 96a-101a. At the very next Board 
meeting after the NAACP presented its proposal (two 
years before the next election), the Board passed a motion 
of intent to adopt the Police Jury plan, which contains no 
majority-black districts. That plan made no attempt to 
accommodate School Board members’ “typicalf] concernf] 
with having a public school or schools in each district.” 
Id. at 73a (If 24), 112a (If 141).7 It also “wreaked havoc with 
the incumbencies of four of the School Board members.” 
Id. at 28a. The Board’s precipitate decision to adopt a plan 
that disserved its usual redistricting goals supports a 
strong inference of discriminatory purpose. See Arling­
ton Heights, 429 U.S. at 267 & n.17.

Appellee is thus incorrect in stating (Bd. Br. 40) that 
“ [t]he Board was offered a choice between two alternative 
redistricting plans.” Given the significant length of time 
before the next election, one would expect the Board to 
have continued the process on which it had initially 
embarked and explored other alternatives to the Police 
Jury plan. See Arlington Heights, 429 U.S. at 267 (“De­

7 Appellee derides this concern as “appellants! ’ 1 newly-discovered 
‘a school building in every district’ rule.” Bd. Br. 49 n.34. But it was 
the School Board itself that stipulated to the consideration’s impor­
tance. See J.S. App. 73a (f 24).



10

partures from the normal procedural sequence also might 
afford evidence that improper purposes are playing a 
role.”)- Those alternatives might have involved different 
configurations for drawing two majority-black districts in 
Bossier Parish. They also might have included plans 
drawing a single majority-black district; the parties have 
stipulated that it was “obvious” that a reasonably compact 
black-majority district could be drawn within Bossier 
City. J.S. App. 76a (If 36).8 The Board was not required to 
adopt the NAACP plan or any particular alternative; nor 
does the mere “failure to maximize” majority-minority 
districts (Bd. Br. 42) establish a discriminatory purpose. 
Under the facts of this case, however, the Board’s decision 
immediately to enact the Police Jury plan when presented 
with the NAACP proposal, and its sudden abandonment of 
its legitimate search for alternative plans, strongly sug­
gest that the Board adopted the Police Jury plan for an 
impermissible reason. See Arlington Heights, 429 U.S. at 
267.

The context of the Board’s decision also makes clear the 
pretextual nature of the Board’s assertion that its action 
was required by a state law against splitting precincts. 
As we explained in our opening brief (Br. 9 n.6), precincts 
are purely administrative units designed for the manage­
ment of elections. The district court found that from the 
start of the redistricting process the Board “likely antici­
pated the necessity of splitting some precincts.” J.S. App.

8 Appellee urges the Court to disregard this stipulation (Bd. Br. 48 
n.33), arguing that it is inconsistent with the record developed at trial. 
Trial in this case was limited, at the district court’s suggestion, to 
two days only, and the live testimony consisted solely of cross- 
examination—the parties were restricted to submitting direct testi­
mony in written, narrative form. Given these constraints on proof, the 
United States should not be penalized for failing to present additional 
evidence of facts to which appellee had already stipulated.



11

29a. The Board’s own redistricting consultant provided 
the Board members with precinct maps and instructed 
them that they “would have to work with the Police Jury 
to alter the precinct lines.” Id. at 95a 89). Had the
Board done so, its plan would have constituted neither a 
“violation[]” nor an “eva[sion]” (Bd. Br. 44) of state law, for 
it is undisputed that the Police Jury had the power to 
redraw precincts. J.S. App. 6a-7a, 72a. Although the 
Police Jury had rejected the Board’s initial overture for 
joint redistricting (Bd. Br. 45)—an action readily 
explainable by the two bodies’ divergent districting 
interests—appellee has presented no evidence that the 
Board would have refused to cooperate in altering precinct 
lines to accommodate whatever districts the Board drew.9 
Nor has appellee explained why the Board did not even 
approach the Police Jury to determine whether it would 
cooperate. The dictates of state law simply do not explain 
the Board’s abrupt decision to adopt the Police Jury plan.

Nor can the Board’s use of the Police Jury plan be ex­
plained by concerns regarding the cost of additional 
precincts. Contrary to appellee’s contention (Bd. Br. 44- 
45), adopting a plan with two majority-black districts 
would not have required a significant increase in the 
number of precincts. Even if, as appellee now argues, 
adoption of such a plan would cut existing precinct lines in 
65 places,10 many areas cut out of those precincts could be

9 Appellee suggests (Bd. Br. 45) that the Police Jury had no in­
centive to cooperate after the Attorney General’s objection to the 
Board’s plan, because doing so would have constituted an admission of 
the Police Jury’s own liability. But the Police Jury’s cooperation with 
the Board at the time the Board redistricted would have carried no such 
inference of admission.

10 For this figure, appellee relies on Plaintiffs Exhibit 11, a table 
that was not the subject of testimony or other explanation below. On 
its face, however, the exhibit does not suggest that 65 new precincts



12

consolidated with each other or with existing precincts — 
an option that is permissible under Louisiana law. Def.- 
Int. Exh. G at 14. Throughout the redistricting process, 
the Police Jury anticipated consolidating precincts “as 
soon as practicable.” J.S. App. 86a (If 61). Had the Board 
explored the possibility of precinct consolidation, it could 
have drawn a plan containing two majority-black districts 
with as few as 46 total precincts—3 precincts more than 
the 1990 total, and 10 precincts few er  than the Police Jury 
used in its 1991 redistricting plan. Def.-Int. Exh. G at 14- 
15. Such consolidations would have addressed any signifi­
cant concern with increased costs.11 The Board’s failure 
even to examine the prospect of consolidation, and the 
Police Jury’s own adoption of a redistricting plan that 
required the creation of 13 additional precincts, cast con­
siderable doubt on appellee’s asserted concern with elec­
toral costs.

For similar reasons, appellee’s suggestion (Bd. Br. 47- 
48) that the NAACP plan split three towns does not

would need to be created under the NAACP plan. The exhibit identifies 
65 precinct “cuts,” but 13 of those “cuts” contain no population, and 
many others contain very small population totals. The “cuts” therefore 
could readily have been remedied by consolidation with other precincts.

11 Appellee does not mention the availability of consolidating pre­
cincts—a procedure that reduces the number of precincts by joining 
them together for all purposes and thus saves the election costs that 
additional precincts would entail. See J.A. 171. Appellee instead 
refers to the possibility of allowing separate precincts to share polling 
places (Bd. Br. 45 n.31)—a distinct process that may reduce some 
election costs but does not reduce the number of precincts. Compare 
J.S. App. 85a-86a (f 61) (noting that the Board’s redistricting con­
sultant, Gary Joiner, was aware that changes could be made “to 
consolidate some precincts and thus reduce administrative costs”); with 
id. at 86a (f 62) (noting that “it was also Joiner’s understanding” that 
“costs could be reduced by placing the machines and poll workers of 
two precincts at one polling place”).



13

explain the Board’s abrupt decision, when faced with that 
plan, to abandon its search for alternatives and adopt the 
Police Jury plan. One of the three towns— Haughton— 
was wholly unaffected by either majority-black district in 
the NAACP plan. See Def.-Int. Exh. 7, Map 3. The Board 
could thus have readily drawn two majority-black districts 
without splitting that town had it attempted to do so.12 
Moreover, the Police Jury plan, which the Board rushed to 
adopt, split the town of Benton (J.A. 102-103) and divided 
well-established, predominantly black neighborhoods with­
in Bossier City. J.A. 102-104. Appellee’s articulated 
rationale of avoiding the splitting of municipalities is pre- 
textual.

In sum, the strongest evidence demonstrating the 
Board’s purpose is not the Board’s failure to adopt the 
NAACP plan but rather its decision to adopt the Police 
Jury plan—a plan it had already rejected as inconsistent 
with its districting interests—in circumstances suggest­
ing a discriminatory motivation. As Judge Kessler found 
below,

[t]he common-sense understanding of these events 
leads to one conclusion: The Board adopted the Police 
Jury plan—two years before the next election—in 
direct response to the presentation of a plan that 
created majority-black districts. Faced with growing 
frustration of the black community at being excluded 
from the electoral process, the only way for the School 
Board to ensure that no majority-black districts would 
be created was to quickly adopt the Police Jury plan 
and put the issue to rest.

12 The “Cooper 2” plan submitted by Defendant-Intervenors below 
included Haughton entirely within District 12. See Def.-Int. Exh. 25B.



14

J.S. App. 49a-50a. The district court’s holding that appel­
lee met its burden of proof,18 notwithstanding this compell­
ing evidence, was clear error.

3. We explained in our opening brief (Gov’t Br. 33-44) 
that, when Section 2 was amended in 1982, Congress read 
this Court’s decision in Beer v. United States, 425 U.S. 
130 (1976), as requiring that electoral changes resulting in 
unlawful vote dilution not be precleared. In Beer, 425 U.S. 
at 141, the Court concluded that a nonretrogressive 
redistricting plan could not violate the “effect” prong of 
Section 5 “unless the new apportionment itself so dis­
criminates on the basis of race or color as to violate the 
Constitution.” In noting the possibility that “a legislative 
reapportionment could be a substantial improvement over 
its predecessor in terms of lessening racial discrimina­
tion, and yet nonetheless continue so to discriminate on 
the basis of race or color as to be unconstitutional,” the 
Court cited, inter alia, the vote dilution cases culminating 
in White v. Regester, 412 U.S. 755 (1973). See Beer, 425 
U.S. at 142-143 n.14. In the 1982 amendments, Congress 
reinstated what it understood to be White’s “results” test 
as the standard governing Section 2 claims. See Gingles, 
478 U.S. at 43-44 & n.8.

Congress reasonably read the Court’s decision in Beer 
to require the conclusion that changed voting systems 
violative of amended Section 2’s “results” standard could 
not be precleared under Section 5—whether because a 
discriminatory “result” constituted a form of discrimi­
natory “effect” under Section 5, or because the equitable 13

13 A covered jurisdiction in a Section 5 declaratory judgment action 
has the burden of proving, inter alia, that its voting changes were not 
adopted for a discriminatory purpose. Georgia v. United States, 411 
U.S. 526, 538 (1973). As a consequence, even if the evidence were in 
equipoise with respect to the question of discriminatory purpose, the 
district court would have been obligated to deny Section 5 preclearance.



15

remedy of preclearance could not be invoked in aid of a 
proven violation of anti-discrimination law. See Gov’t Br. 
34-35. The Senate Report made Congress’s understanding 
on this point explicit by quoting Beer’s discussion and 
concluding that “ [i]n light of the amendment to Section 2, 
it is intended that a Section 5 objection also follow if a new 
voting procedure itself so discriminates as to violate Sec­
tion 2.” S. Rep. No. 417, 97th Cong., 2d Sess. 12 n.31 (1982). 
The Attorney General’s Procedures for the Administra­
tion of Section 5 incorporate Congress’s understanding by 
requiring a denial of preclearance where “a bar to imple­
mentation of the change is necessary to prevent a clear 
violation of amended section 2.” 28 C.F.R. 51.55(b)(2).14

The Senate Report makes clear that Congress viewed 
Beer as already incorporating a prohibition of unlawful 
vote dilution into Section 5. It is therefore simply irrele­
vant that, as appellee repeatedly observes (Bd. Br. 13, 14, 
15, 22 & n.17), Congress did not alter the language of 
Section 5 itself in 1982 to provide expressly that a Section 
2 “results” violation requires a denial of preclearance. 
Congress need not alter the language of a statutory 
provision when, as here, it agrees with a prior judicial

14 Appellee contends (Bd. Br. 22-23 n.18) that this regulation is not 
entitled to deference. This Court, however, has accorded “particular 
deference” to the interpretations of the Voting Rights Act set forth in 
the Procedures for the Administration of Section 5. Dougherty County 
Bd. of Educ. v. White, 439 U.S. 32, 39 (1978); see Georgia v. United 
States, 411 U.S. 526, 536-539 (1973); see also Morse v. Republican Party 
of Virginia., 116 S. Ct. 1186, 1193-1197 (1996) (plurality opinion) 
(applying Attorney General’s regulation relating to Section 5 coverage 
of political parties). Nor is the regulation—which interprets Section 5’s 
prohibition on voting changes “havfing] the effect of denying or abridg­
ing the right to vote on account of race,” 42 U.S.C. 1973c, to encompass 
changes that “result” in discriminatory vote dilution—unreasonable or 
contrary to the plain text of the statute. See generally Chevron U.S. A. 
Inc. v. National Resources Defense Council, Inc., 467 U.S. 837 (1984).



16

gloss on that provision. To the contrary, “ [w]hen a Con­
gress that re-enacts a statute voices its approval of an 
administrative or other interpretation thereof, Congress 
is treated as having adopted that interpretation, and this 
Court is bound thereby.” United States v. Board of 
Comm’rs, 435 U.S. 110,134 (1978).15

Appellee incorrectly contends (Bd. Br. 20) that the Beer 
language quoted in the Senate Report “simply makes the 
obvious point that intentionally discriminatory action is 
prohibited by Section 5.” 16 The Beer Court’s discussion of 
a change that “itself so discriminates * * * as to violate 
the Constitution,” Beer, 425 U.S. at 141, and its discussion 
of the ways in which a change might violate that standard, 
id. at 142-143 n.14, would have been a highly circuitous 
way of making the obvious point that Section 5’s text 
prohibits changes with the “purpose” of denying or 
abridging the right to vote.17 Moreover, by noting that an

15 By contrast, the 1982 amendments did alter the text of the 
“bailout” provisions in Section 4(b) of the Act, 42 U.S.C. 1973b(b), to 
provide expressly that a covered jurisdiction could not exempt itself 
from Section 5’s preclearance requirement unless it had eliminated “ all 
voting procedures and methods of election which inhibit or dilute equal 
access to the electoral process.” 42 U.S.C. 1973b(F)(i). This amendment 
was necessary because—unlike in the case of Section 5—prior 
interpretation of Section 4 did not allow bailout to be denied on the 
basis of unlawful vote dilution. S. Rep. No. 417, 97th Cong., 2d Sess. 
43-45 (1982).

16 Appellee also notes (Br. 20) that Justice Marshall, dissenting in 
Beer, vigorously argued that the White v. Regester standard should 
apply. But Justice Marshall—like Congress—read the majority opin­
ion in Beer as ultimately holding that preclearance should be withheld 
where a change violates White’s “results” test. See Beer, 425 U.S. at 
153-155.

17 The question of discriminatory purpose was not at issue in Beer 
because the three-judge court had denied preclearance based solely on 
Section 5’s “effect” prong. See Beer, 425 U.S. at 136 n.7.



17

ameliorative plan could “ continue so to discriminate on 
the basis of race or color as to be unconstitutional,” id. at 
142 n.14 (emphasis added), the Court focused on the 
continuing operation of the redistricting plan, rather than 
on the discrete intent underlying its enactment. In light 
of that language, Congress reasonably concluded that 
Beer required that preclearance be denied where a change 
violated White’s “results” test. The Senate Report—the 
“authoritative source” for determining Congress’s intent 
in enacting the 1982 amendments, Gingles, 478 U.S. at 43 
n.7—makes clear that Congress read Beer in this way.

Nor would the result be different if Congress erred in 
interpreting the Beer decision; where Congress acts to 
codify its understanding of prevailing case law, that 
understanding is controlling for purposes of subsequent 
statutory construction. “Whether that understanding of 
Congress was in some ultimate sense incorrect is not 
what is important * * *. For the relevant inquiry is not 
whether Congress correctly perceived the then state of 
the law, but rather wh'at its perception of the state of the 
law was.” Brown v. General Services Administration, 
425 U.S. 820, 828 (1976).

Appellee invokes the “rule of statutory construction 
that if Congress intends to alter the usual constitutional 
balance between States and the Federal Government, it 
must make its intention to do so unmistakably clear in the 
language of the statute.” Bd. Br. 24 (quoting Will v. 
Michigan Dep’t of State Police, 491 U.S. 58, 65 (1989) 
(internal quotation marks omitted)). The language of the 
Voting Rights Act, however, does make “unmistakably 
clear” that it alters the “usual constitutional balance” by 
subjecting covered jurisdictions like Bossier Parish to the 
requirements of Section 5, and by requiring all States and 
political subdivisions to comply with Section 2. Because 
Bossier Parish is clearly subject to the restrictions of



18

both Section 2 and Section 5, the denial of preclearance to 
one of its voting changes that violates Section 2 does not 
work any further alteration of the constitutional balance. 
Indeed, given the substantial overlap in the factors 
relevant to discriminatory purpose and the factors 
relevant to a Section 2 violation, much if not all of the 
evidence necessary to a Section 2 inquiry will necessarily 
be before the Section 5 court in any event. Compare 
Gingles, 478 U.S. at 43-51 (factors relevant to establishing 
Section 2 violation), with Rogers, 458 U.S. at 622-627 
(factors relevant to establishing purposeful vote dilution). 
It would thus be quite anomalous if Congress intended to 
require preclearance even when a Section 2 violation is 
fully established in the Section 5 proceedings. See Morse 
v. Republican Party of Virginia, 116 S. Ct. 1186, 1201 
(1996) (plurality opinion).18

18 Appellee suggests (Bd. Br. 14,19) that a three-judge district court 
lacks subject matter jurisdiction to consider Section 2 issues. Even if 
appellee were correct that a Section 2 claim may not form the basis for 
jurisdiction in the three-judge court, nothing in the statute prevents the 
court from considering the Section 2 results standard in the course of 
adjudicating a Section 5 action over which it concededly has jurisdic­
tion. Moreover, appellee is incorrect. Jurisdiction to enforce Section 2 
is provided by Section 12(f) of the Voting Rights Act, 42 U.S.C. 
1973j(f), which vests subject matter jurisdiction in the “district courts of 
the United States,” without limitation. Indeed, Section 2 challenges to 
statewide reapportionments must be brought in three-judge district 
courts. See 28 U.S.C. 2284(a). And this Court has affirmed the 
assertion of jurisdiction by the three-judge District Court for the 
District of Columbia to issue injunctions against the implementation of 
unprecleared voting changes—even though the same provision of 
Section 12 provides jurisdiction for such Section 5 enforcement actions, 
and even though Allen v. State Bd. o f Elections, 393 U.S. 544, 560 
(1969), held that such actions may be brought in the district in which 
the change is implemented. See Texas v. United States, No. 94-1529 
(D.D.C. Sept. 27,1994) (three-judge court), summarily a ff’d, 115 S. Ct. 
1397 (1995).



19

Finally, there is no merit to appellee’s contention (Bd. 
Br. 10-13) that this Court’s decisions in Shaw II and 
M iller held that a violation of Section 2 does not warrant 
the denial of preclearance. In each of those cases, the 
Attorney General’s Section 5 objection was based solely on 
a claim of discriminatory purpose. See Shaw II, 116 S. Ct. 
at 1904; Miller, 115 S. Ct. at 2492. While the Court ex­
pressed “doubt that a showing of discriminatory effect 
under § 2, alone, could support a claim of discriminatory 
purpose under § 5,” Shaw II, 116 S. Ct. at 1905 n.6 
(emphasis added), the Court has never addressed the 
question whether a violation of amended Section 2 provides 
a ground for denying preclearance under the “effect” 
prong of Section 5, or as a bar to a Section 5 equitable 
remedy. See City of Lockhart v. United States, 460 U.S. 
125, 133 n.9 (1983) (declining to address that question). 
Nor would denying preclearance on the basis of a Section 2 
violation codify the “maximization policy” that this Court 
condemned in Shaw II  and Miller. Cf. Bd. Br. 12. Section 
2, by definition, does not require maximization. See 
Johnson v. DeGrandy, 114 S. Ct. 2647, 2660 (1994) (“Fail­
ure to maximize cannot be the measure of § 2.”). Pre­
clearance may not be denied under Section 2’s “results” 
test unless the detailed preconditions for such a violation 
are established and, in the totality of the circumstances, it 
is shown that minority voters in the jurisdiction lack an 
equal opportunity to participate in the political process 
and to elect representatives of their choice. See 114 S. Ct. 
at 2654-2663.

%  if: sfc >|c %

For the foregoing reasons and those stated in our 
opening brief, the judgment of the district court should be 
reversed and the case remanded for entry of a declaratory 
judgment that the redistricting plan at issue here is not



20

entitled to preclearance under Section 5. In the alter­
native, the judgment should be reversed and the case re­
manded for further proceedings to consider, under proper 
legal standards, the evidence concerning discriminatory 
purpose and the plan’s compliance with Section 2.

Respectfully submitted.

W a l t e r  D e l l in g e r  
Acting Solicitor General

October  1996