People of Illinois v. Raby Brief in Opposition to Granting of Petition for Certiorari

    AUG-20-98 THU 1 4 :3 7 NAACP LDF DC OFC FAX NO. 2026821312 P. 02

No.

IN THE SUPREME COURT OF THE UNITED STATES 
OCTOBER TERM, 1997

JANET RENO, APPELLANT 
v.

BOSSIER PARISH SCHOOL BOARD

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

JURISDICTIONAL STATEMENT

SETH P. WAXMAN
Solid Lor General

Counsel of Record
ANITA S. HODGKISS
Actinc Assistant Attorney General

BARBARA D- UNDERWOOD
Deputy Solicitor General

PAUL R.Q. WOLFSON
Assistant to the Solicitor 

General
MARK L. GROSS 
LOUIS E. PERAERTZ 
Attorneys
Department of Justice 
Washington, D.C. 20530 0001 
1202) 514-221/

AUG 2 0  ’ 98  1 4 : 4 0 2 0 2 S 8 2 131 2  P A G E . 0 0 2



AUG-20-98 THU 1 4 :37 NAACP LDF DC OFC FAX NO. 2026821312 P. 03

QUESTION PRESENTED
Whether the district court erred as a matter of law in 

concluding that, because Bossier Parish School Board's 1992 
redistricting plan was not enacted with a retrogressive purpose, 
it was not enacted with "the purpose * * * of denying or 
abridging the right to vote on account of race," within the 
meaning of Section 5 of the Voting Rights Act of 1965, 42 U.S.C. 
1973c.

(I)

AUG 2 0  ’ 9 8  1 4 : 4 0 2 0 2 B 8 2 131 2  P A G E . 0 0 3



AUG-20-98 THU 1 4 :3 7 NAACP LDF DC OFC FAX NO. 2026821312 P. 04

PARTIES TO THE PROCEEDING
Bossier Parish School Board was the plaintiff in the 

district court and is the appellee in this Court. The United 
States was the defendant in the district court and is the 
appellant in this Court. Intervenor-defendants George Price, et 
al., have filed a separate notice of appeal from the judgment of 
the district court and are filing a separate jurisdictional 
statement.

( I I )

AUG 2 0  ’ 9 8  1 4 : 4 0 2 0 2 6 8 2 1 3 1 2  P A G E . 0 0 4



AUG -20-98 THU 1 4 :3 7 NAACP LDF DC OFC FAX NO. 2026821312 P. 05

No.

IN THE SUPREME COURT OF THE UNITED STATES 
OCTOBER TERM, 1997

JANET RENO, APPELLANT 
v.

BOSSIER PARISH SCHOOL BOARD

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

JURISDICTIONAL STATEMENT 

OPINIONS BELOW
The opinion of the district court that is the subject of 

this appeal (App. la-28a)‘ is not. yet published, but is available 
at 1398 WL 2932J2. An earlier opinion of the district court 
(App. 78a-144a) is reported at 907 F. Supp. 434. This Court's 
opinion on appeal from the district court's initial decision 
(App. 2Sa-77a) is reported at 520 U.S. 471.

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

on May 4, 1998.: A notice of appeal was filed on July 6, 199$

"App." refers to the separately bound appendix to this 
jurisdictional statement.

2 Although notations on the district court's opinion and 
order indicate that they were "filed" on May 1, 1998 (App. la, 
28a), the district court's docket shows that final judgment was actually entered on May 4, 1998. Sec App. 242.

RUG 2 0  ' 9 8  1 4 : 4 0 2 0 2 6 8 2 1 3 1 2  P R G E . 0 0 5



AUG-20-98 THU 1 4 :38 NAACP LDF DC OFC FAX NO. 2026821312 P. 06

2

(the Monday following Friday, July 3, a federal holiday) . App.
242a-243a. The jurisdiction of this Court is invoked under 42 
U.S.C. 1973c.

STATUTORY PROVISION INVOLVED
Section 5 of the Voting Rights Act of 1965, 42 U.S.C. 1973c, 

is reproduced at App. 244a-246a.
STATEMENT

Section 5 of the Voting Rights Act of 1965, 42 U.S.C. 1973c, 
provides that a covered 'jurisdiction may not implement any change 
in election practices unless it has first submitted the proposed 
change to the Attorney General and the Attorney General has not 
interposed an objection to the change within 60 days, or unless 
it has obtained a declaratory judgment from the Uniced States 
District Court for the District of Columbia that the proposed 
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." In its previous decision in this case, this Court held 
that the "effect" inquiry under Section 5 requires only an 
examination whether the proposed change will have a retrogressive 
effect on the position of racial minorities in the jurisdiction. 
App. 33a-45a. The Court reserved "the question whether the § 5 
purpose inquiry ever extends beyond the search for retrogressive 
intent" and requires consideration whether the jurisdiction acted 
with the intent to discriminate against minorities, but not

AUG 2 0  ’ 9 8  1 4 : 4 1 2 0 2 S 8 2 1 3 1 2  P A G E . 0 0 6



AUG-20-98 THU 1 4 :3 8 NAACP LDF DO OFC FAX NO, 2026821312 P. 07

3
necessarily to make their position worse than before, and stated 
that [t]he existence of such a purpose, end its relevance to §
5, are issues to be decided on remand." App. 45a-46a. On 
remand, the district court "decline[d]" to consider any 
discriminatory purpose other than retrogression, App. 3a, and 
preclsared appellee's election plan because no retrogressive 
purpose had been shown, App. 5a-8a. The question presented in 
this case is whether a covered jurisdiction's discriminatory, but 
not retrogressive, purpose in enacting an election plan precludes 
preclearance under Section 5, and accordingly whether the 
district court erred as a matter of law in preclearing appellee's 
election plan based on the lack of evidence of retrogressive 
intent, without considering further whether that plan was enacted 
with a discriminatory purpose.

1. Bossier Parish is located in northwestern Louisiana.
The parish's primary governing body, the Police Jury, and the 
parish's School Board (Board or appellee) both consist of 12 
members elected from single-member districts by majority vote to 
4-year terms. App. 145a. There is no legal requirement, 
however, that the Police Jury and School Board districts be the 
same, and the districts for the two bodies were different 
throughout the 1900s. App. 150a-151a.

The Parish and the School Board both have a history of 
racial discrimination beginning before the Civil war and

AUG 2 0  ' 9 8  1 4 : 4 1 2 0 2 6 8 2 1 3 1 2  P A G E . 0 0 ?



AUG-20-98 THU 1 4 :38 NAACP LDF DC OFC FAX NO. 2026821312 P. 08

continuing to the present. App. 210a-220a. De jure segregation 
prevailed in Louisiana's schools long after this Court's decision 
in Bjpwn V .  so.axd...Of E.clu.c.3.tion, 347 u.s. 483 (1954). App. 216a. 
In 1965, the Board was placed under a court order to eliminate 
the vestiges of racial discrimination in its school system.
Lemon v. Bossier parish School Board. 240 F. Supp. 709 (W.D. La. 
1965), aff'd, 370 F.2d 847 (5th Cir.), cert, denied, 388 U.S. 911 
(1967) . The Board repeatedly sought to evade its desegregation 
obligations through a variety of devices, and it remains subject 
to that court order, its 1970 request for termination having been 
denied. App. 216a-217a. The Board has violated the T.emon 
court's order to maintain a biracial committee to recommend ways 
to attain and maintain a unitary school system. App. 182a-183a. 
The Board also has continued to assign disproportionate numbers 
of black faculty to schools with predominantly black enrollment. 
App. 217a. The schools in Bossier Parish have, in fact, become 
increasingly segregated by race since the 1980s. App. 218a.

In 1990, black persons comprised 20.1% of the total 
population of Bossier Parish, and 17.6% of the voting age 
population. App. 145a-146a. The black population of the Parish 
is concentrated in two areas: More than 50% of the black 
residents live in Bossier City, and the remaining black 
population is concentrated in four populated areas in the 
northern rural part of the Parish. App. 146a-147a. The parties

PUG 2 0  ' 9 8  1 4 : 4 1 2 0 2 S 8 2 1 3 1 2  P P G E . 0 0 8



AUG-20-98 THU 1 4 :3 8 NAACP LDF DC OFC FAX NO. 2026821312 P. 09

5
have stipulated to facts showing that voting in the Parish is 
racially polarized, and that voting patterns are affected by 
racial preferences. App. 201a-206a. The parties have also 
stipulated that it is feasible to draw two reasonably compact 
black-majority districts in the Parish using traditional 
districting features such as roads, streams, and railroads. App. 
154a-155a, 192a-194a. Nevertheless, the Police Jury has never 
had a districting plan that contained any majority-black 
districts, App. 79a, and black voters have historically been 
unable to elect candidates of their choice to political positions 
in the Parish, App. 195a-206a.3

3 When the stipulated record was compiled in this case, no 
black person had ever been elected to the Board. App. 195a. Of 
the 14 elections in the Parish held between 1980 and 1990 in 
which a black candidate ran against a white candidate in a 
single-member district or for mayor, only two black candidates 
(one for Police Jury, one for Bossier City Council) won; those 
candidates both ran in districts that contained a United States 
Air Force base that increased the ability of black voters to 
elect representatives of their choice, in a manner particular to 
those districts. App. 206a. The black incumbent Police Juror 
was reelected under the new Police Jury Plan, unopposed, in 1991. 
App. 198a. The black City CounciImember ran against a white 
opponent in 1993 and lost. App. 199a-200a.

Before its earlier decision in this case, this Court denied 
the Board's motion to supplement the record with the results of 
elections that occurred after the Board's adoption of the 1992 
redistricting plan at issue here. Reno v. Bossier Parish School 
Board. 517 U.S. 1154 (1996). On remand, the parties agreed to 
rest on the stipulated record that they had previously compiled. 
App. la. Accordingly, the district court denied the Board's 
request that it consider the results of election held after 
enactment of the 1992 plan. App. la-2a. The Board claimed that 
it now has two black members who were elected by the voters, and 
a third black member who was appointed to replace a white member

PUG 2 0  ' 9 8  1 4 : 4 2 2 0 2 B 8 2 1 3 1 2  P P 6 E . 0 0 9



AU G -20-98 THU 1 4 :3 9 NAACP LDF DC OFC FAX NO. 2026821312 P. 10

6
2. After the 1990 census revealed that its districts were 

malapportioned, the Police Jury began the process of 
redistricting. "At the time of the 1990-1991 redistricting 
process, some Police Jurors were specifically aware that a 
contiguous black-majority district could be drawn bolh in 
northern Bossier Parish and in Bossier City," and "it was obvious 
that a reasonably compact black-majority district could be drawn 
within Bossier City." App. 154a-155a. Nonetheless, during 
public meetings in April 1991, white Police Jurors and the Police 
Jury's cartographer told citizens that it was impossible to 
create such districts because the black population was too 
dispersed. App. 160a-162a. On April 30, 1991, the Police Jury 
adopted a redistricting plan that, like all of its predecessors, 
contained no majority-black districts. App. 163a-164a.

On May 28, 1991, the Police Jury submitted its redistricting 
plan to the Department of Justice for preclearance under Section 
5. The Police Jury did not provide the Department with 
information then available to it showing that reasonably compact 
majority-black districts could be created. Nor did it provide a 
copy of a letter from the Concerned Citizens of Bossier Parish, a 
local organization, protesting the Police Jury's exclusion of 
black citizens from the redistricting process, despite the

who resigned for health reasons. The district court, 
nonetheless, decided this case on the parties' stipulation that 
no black person had ever been elected to the Board.

PIUS 2 0  ' 9 8  1 4 : 4 2 2 0 2 6 8 2 1 3 1 2  P A G E . 0 1 0



AUG-20-98 THU 1 4 :3 9 NAACP LDF DC OFC FAX NO. 2026821312 P. 11

7
organization's express request that the letter be included in the 
Police Jury's Section 5 submission. On July 29, 1991, based on 
the information submitted to it, the Department of Justice 
precleared the plan for Police Jury elections. App. 165a-167a.

3. The School Board initially proceeded without urgency on 
its own redistricting process, as its next elections were not 
scheduled to occur until October 1994. App. 172a. The Board 
originally decided not to adopt the 1991 Police Jury plan, but 
rather to develop a different plan. Ibid. The Board and the 
Police Jury serve different functions and, for at least a decade, 
had maintained different electoral districts. App. 150a-141a. 
Police juries "are concerned with road maintenance, drainage, and 
in some cases garbage collection, and the level of demand for 
such services in each district is a concern. Board members, by 
contrast, are typically concerned with having a public school or 
schools in each district." App. 151a. The district lines in the 
1991 Police Jury plan do not correspond with school attendance 
zones, and some Police Jury districts contain no schools. App. 
191a. Also, the 1991 Police Jury plan would have pitted two sets 
of Board incumbents against each other and would have created 
other districts with no Board incumbents. App. 181a.

The Board hired Gary Joiner, the Police Jury's cartographer, 
to develop a redistricting plan. Joiner estimated that he would 
spend 200 to 250 hours on the project. App. 173a. Joiner met

AUG 2 0  ’ 9 8  1 4 : 4 2 2 0 2 6 8 2 1 3 1 2  P A G E . 0 1 1



AUG-20-98 THU 1 4 :3 9 NAACP LDF DC OFC FAX NO. 2026821312 P. 12

8

privately with Board members and showed them various 
computer-generated alternative districts, none of which contained 
a majority-black district. App. 176a.

Beginning in March 1992, representatives of local black 
community groups (including defendant-intervenor George Price, 
president of the local chapter of the NAACP) requested that 
representatives of the black community be included in the Board's 
redistricting process. The Board did not respond to those 
requests. App. 175a-176a. On August 20, 1992, with no other 
plan having been publicly released, Price presented a plan for 
two majority-black districts -- one in the northern part of the 
parish and one within Bossier City -- that had been developed by 
the NAACP. App. 192a. Price was told that the Board would not 
consider a plan that did not also draw the other ten districts.
App. 177a .

At a Board meeting held on September 3, 1992, Price 
presented an NAACP plan that depicted all 12 districts and 
included two majority-black districts. The Board refused to 
consider it, ostensibly because "the [NAACP] plan's district 
lines crossed existing precinct lines, and therefore violated 
state law." App. 178a-179a. The Board's cartographer and 
attorney knew at the time, however, that crossing existing 
precinct lines did not legally preclude the 3oard from 
considering the plan. App. 179a. Although state law prohibits

AUG 2 0  ’ 9 8  1 4 : 4 2 2 0 2 8 8 2 1 3 1 2  P A G E . 0 1 2



AUG-20-98 THU 1 4 :3 9 NAACP LDF DC OFC FAX NO. 2026821312 P. 13

9
school boards themselves from splitting precincts, App. 149a, 
school boards may and do "request precinct changes from the 
Police Jury necessary to accomplish their redistricting plans." 
App. 151a. The Board had itself anticipated the necessity of 
splitting precincts in its redistricting plan; Joiner had given 
the Board precinct maps at the start of the redistricting 
process, and had told the Board members that they "would have to 
work with the Police Jury to alter the precinct lines." App.
174a .

At the next Board meeting on September 17, 1992, only two 
weeks aller Price had presented the NAACP plan, the Board 
unanimously passed a motion of intent to adopt the Police Jury 
plan that it had initially found unsatisfactory. The Board's 
action to adopt the Police Jury plan precipitated overflow 
citizen attendance at a Board hearing on September 24, 1992, and 
many citizens, white and black alike, vocally opposed the plan. 
Price explained to the Board that, in light of the NAACP plan 
demonstrating the feasibility of drawing one or more reasonably 
compact majority-black districts, the Department of Justice'3 
preclearance of the Police Jury plan did not guarantee its 
preclearance for Board elections. The Board nevertheless adopted 
the Police Jury plan at its next meeting on October 1, 1992.
App.180a-181a.

There was evidence that several Board members preferred the

AUG 2 0  ' 9 8  1 4 : 4 3 2 0 2 S 8 2 1 3 1 2  P A G E . 0 1 3



AUG-20-98 THU 1 4 :4 0 NAACP LDF DC OFC FAX NO. 2026821312 P. 14

10
Police Jury plan because they did not want blacks on the Board. 
Board member Barry Musgrove said that "the Board was 'hostile' 
toward the idea of a black majority district." App. 33a n.4. 
Board member Henry Burns stated that although he personally- 
favored "having black representation on the board, other school 
board members oppose[d] that idea." Ibid. Board member Thomas 
Myrick, who represented a district with portions of predominantly 
black communities, told Price that he (Myrick) "had worked too 
hard to get [his] seat and that he would not stand by and 'let us 
take his seat away from him.'" Ibid.

The Board submitted the 1992 plan to the Attorney General 
for preclearance. On August 30, 1993, the Attorney General 
interposed an objection to the Board's plan, citing new 
information that had not been provided when the Police Jury 
submitted the same plan, such as community objections to the 
plan, the Board's refusal to engage in efforts to accommodate the 
concerns of the black community, and the feasibility of a 
majority-black district. App. 233a-237a.

4. On July 8, 1994, the Board filed a declaratory judgment
action in the United States District Court for the District of 
Columbia, seeking preclearance of its 1992 election plan. The 
government opposed preclearance, arguing that the Board had not 
shown either than the plan lacked a discriminatory effect or that 
it lacked a discriminatory purpose. The government did not

RUG 2 0  ' 9 8  1 4 : 4 3 2 0 2 8 8 2 1 3 1 2  P 8 G E . 0 1 4



AUG-20-98 THU 1 4 :4 0 NAACP LDF DC OFC FAX NO. 2026821312 P. 15

11

argue, however, that the 1992 plan had either the purpose or 
effect of making the position of blacks worse than before it was 
enacted.4

On November 2, 1995, a divided three-judge district court 
granted preclearance. App. 78a-144a. With respect to the 
government's argument that the Police Jury plan had a 
discriminatory effect, the court held that a voting change cannot 
be denied preclearance under the "effect" analysis of Section 5 
solely on the ground that the change would "result!] in a denial 
or abridgment of the right * * * to vote on account of race or 
color,” in violation of Section 2 of the Voting Rights Act of 
1965, 42 U.S.C. 1973. App. 89a-102a.5 The court also ruled that 
the Board, in adopting the Police Jury plan, did not have a

4 The parties stipulated that, because the reductions in 
the black share of the population in some districts were de 
minimis, the plan "is not retrogressive to minority voting 
strength compared to the existing benchmark plan and therefore 
will not have a discriminatory fi.e .. retrogressive] effect."
App. 221a.

5 Section 2(a) of the Voting Rights Act bars all States and 
their political subdivisions from maintaining any voting 
"standard, practice, or procedure" that "results in a denial or 
abridgment of the right J' * * to vote on account of race or 
color." 42 U.S-C. 1973(a). Under Section 2(b) of the Act, a 
voting practice results in a denial or abridgment of the right to 
vote if, "based on the totality of the circumstances, it is shown 
that the political processes leading to nomination or election in 
the State or political subdivision are not equally open to 
participation by [racial minority groups]- in that its members 
have less opportunity than otner members of the electorate to 
participate in the political process and to elect representatives 
of their choice." 42 U.S-C. 1973(b).

RUG 2 0  ’ 9 8  1 4 : 4 3 2 0 2 6 8 2 1 3 1 2  P R G E . 0 1 5



AUG-20-98 THU 1 4 :4 0 NAACP LDF DC OFC FAX NO. 2026821312 P. 16

12

racially discriminatory purpose that would bar preclearance.

App. 102a-114a. In reaching that conclusion, the court 
acknowledged that the Board had "offered several reasons for its 
adoption of the Police Jury plan that were clearly not its real 
reasons." App. 106a n.15. The court nonetheless found 
"legitimate, non-discriminatory motives" for the Board's adoption 
of the Police Jury plan: "The Police Jury offered the twin 
attractions of guaranteed preclearance and easy implementation 
(because no precinct lines would need redrawing)." App. 106a.

Judge Kessler concurred in part and dissented in part, and 
would have denied preclearance. App. 115a-144a. Although she 
agreed with the majority that evidence of a Section 2 violation 
does not per se prevent Section 5 preclearance, she dissented 
from the majority's conclusion that the Board acted with 
legitimate, nondiscriminatory motives. App. 115a. Taking into 
account evidence that, she maintained, was relevant to the intent 
analysis under village of Arlington Heights v. Metropolitan 
Housing Development Coro.. 429 U.S. 252, 266 (1977), she found 
that "the evidence demonstrates conclusively that (the Board] 
acted with discriminatory purpose." App. 117a.

5. The government appealed to this Court, and argued that 
a voting change may not be precleared under Section 5 if the 
change would violate Section 2. This Court disagreed with the 
government on that point and held, in agreement with the district

AUG 2 0  ’ 9 8  1 4 : 4 4 2 0 2  B 8 2 1 3 1 2  P A G E . 0 1 S



AUG-20-98 THU 14:41 NAACP LDF DC OFC FAX NO. 2026821312 P. 17

13
court, that a voting change may not be denied preclearance under 
Section 5 for having a discriminatory "effect" solely because the 
change would "result" in a denial or abridgment of the right to 
vote, in violation of Section 2. App. 33a-45a. The Court 
explained that "a plan has an impermissible 'effect' under § 5 
only if it would lead to a retrogression in the position of 
racial minorities with respect to their effective exercise of the 
electoral franchise." App. 35a.

The Court also held", however, that evidence that a voting 
change would violate Section 2 by diluting minority voting 
strength is relevant to whether that change has a discriminatory 
purpose. and therefore should be denied preclearance. App. 45a- 
51a. The Court stated that, even if the only discriminatory 
purpose that requires denial of preclearance under Section 5 is a 
retrogressive purpose, i.e., an intent to make the position of 
minorities worse than before, evidence of vote dilution is 
relevant to that analysis. App. 47a. The Court remanded the 
case to the district court for further consideration as to 
whether the Board had a discriminatory purpose in adopting the 
1992 plan. App. 50a-51a. In remanding the case, the Court 
"(left] open for another day the question whether the § 5 purpose 
inquiry ever extends beyond the search for retrogressive intent," 
and stated that "(t]he existence of such a purpose, and its 
relevance to § 5, are issues to be decided on remand.” App. 45a-

PUG 2 0  ’ 9 8  1 4 : 4 4 2 0 2 S 8 2 1 3 1 2  P A G E . 0 1 7



AUG-20-98 THU 14:41 NAACP LDF DC OFC FAX NO. 2026821312 P. 18

14
46a .6

6. On remand, the parties rested on the original record. 
App. la. The government argued that a redistricting plan may not 
be precleared if it was enacted with a discriminatory (albeir not 
necessarily retrogressive) purpose, and that the evidence showed 
that the Board had adopted the 1992 plan with the discriminatory 
purpose of blocking advances in minority voting strength and 
maintaining a discriminatory status quo, which diluted blacks'
voting strength in Bossi-er Parish. The district court, again»
divided, again precleared the Board's plan. App. la-28a.

As to the central legal question left open by this Court and 
remitted to the district court on remand -- namely, whether 
Section 5 requires denial of preclearance of a plan enacted with 
a discriminatory but nonretrogressive purpose —  the court

6 In separate opinions, Justices Breyer, joined by 
Justice Ginsburg, and Justice Stevens, joined by Justice Souter, 
concluded that the purpose inquiry under Section 5 extends beyond 
the search for retrogressive intent, and "includes the purpose of 
unconstitutionally diluting minority voting strength." App. 56a 
(Breyer, J., concurring in part and concurring the judgment);
App. 76a (Stevens, J., dissenting in part ■■and concurring in part) 
(agreeing with Justice Breyer on that point). Justice Breyer 
observed that "to read § 5's 'purpose' language to require 
approval of [a discriminatory, but nonretrogressive plan], even 
though the jurisdiction cannot provide a neutral explanation for 
what it has done, would be both to read § 5 contrary to its plain 
language and also to believe that Congress would have wanted a §
5 court (or the Attorney General) to approve an unconstitutional 
plan adopted with an unconstitutional purpose." App. 58a.
Justice Stevens found it "inconceivable that Congress intended to 
authorize preclearanee of changes adopted for the sole purpose of 
perpetuating an existing pattern of discrimination." Aop. 76a- 
77a.

AUG 2 0  ’ 9 8  1 4 : 4 4 2 0 2 6 8 2 1 3 1 2  P A G E . 0 1 8



AUG-20-98 THU 14:41 NAACP LDF DC OFC FAX NO. 2026821312 P, 19

15
stated, "We are not certain whether or not we have been invited 
to answer the question the Court left open for another day, but 
we decline to do so in this case." App. 3a. The majority also 
remarked that the record in this case "will not support a 
conclusion that extends beyond the presence or absence of 
retrogressive intent." Ibid. Although the majority stated that 
it could "imagine a set of facts that would establish a 1non- 
retrogressive, but nevertheless discriminatory purpose,'" it 
believed that "those imagined facts are not present." App. 3a- 
4a. Thus, it addressed only whether the Board had enacted the 
plan with the intent to retrogress.

The court adhered to its previous view that the Board's 
adoption of the Police Jury plan was supported by at least two 
"legitimate, non-discriminatory motives": the 3oard's belief that 
the plan would be easily precleared (because it had already been 
precleared by the Attorney General for use in Police Jury 
elections) and its "focus on the fact that, the Jury plan would 
not require precinct splitting, while the NAACP plan would."
App. 5a. Those two motives, the court concluded, were sufficient 
to establish a "prima facie case for preclearance." Ibid.

The majority then considered, under the rubric of Village of 
Arlington Heights, supra, factors that might oe relevant to 
establish the Board's retrogressive intent. First, it considered 
whether there was evidence that the plan "bears more heavily on

AUG 2 0  ’ 9 8  1 4 : 4 4 2 0 2 6 8 2 1 3 1 2  P A G E . 0 1 9



AUG-20-98 THU 14:41 NAACP LDF DC OFC FAX NO. 2026821312 F

IS
one race than another." App. 5a. It found that factor 
inconclusive, because, having limited its analysis to evidence of 
retrogressive intent, it could not find evidence that "the Jury 
plan bears more heavily on blacks than the pre-existing plan. ” 
ibid, (emphasis added); even, if the 1992 plan was dilutive of 
black voting strength, it was no more dilutive than the previous 
plan, App. 5a-6a. As for the historical background to the 
Board's adoption of the 1992 plan, the court acknowledged that 
there was "powerful support for the proposition that [appellee] 
in fact resisted adopting a rcdistricting plan that would have 
created majority black districts," including the Board's history 
of resistance to school desegregation. But, the court stressed, 
all that history proved only "a tenacious determination to 
maintain the status quo. It is not enough to rebut the School 
Board's prima facie showing that it did not intend 
retrogression." App. 7a. Similarly, the sequence of events 
leading up to the adoption of the plan "does tend to demonstrate 
the school board's resistance to the plan," and evidence of the 
Board's deviation from its normal practices "establishes rather 
clearly that the board did welcome improvement in the position of 
racial minorities with respect to their effective exercise of the 
electoral franchise," but neither established retrogressive 
intent. App. 7a.

Judge Kessler again dissented. App. 12a-27a. She

AUG 2 0  ' 9 8  1 4 : 4 5 2 0 2 S 8 2 1 3 1 2  P A G E . 0 2 0



AUG -20-98 THU 1 4 :4 2 NAACP LDF DC OFC FAX NO, 2026821312 P. 21

17
"remain[ed] convinced char the school Board's decision to adopt 
the Police Jury redisIricLing plan was motivated by 
discriminatory purpose," App. 12a, and that the Board's 
"proffered reasons for acceptance of the Police Jury plan are 
clearly pretextual," App. 15a. She agreed with the government 
that evidence of a discriminatory, albeit nonratrogressivc, 
purpose requires denial of preclearance under Section 5; 
otherwise, "we would commit ourselves to granting § 5 
preclearance to a 'resistant' jurisdiction's nonretrogressive 
plan even if the record demonstrated an intent by that 
jurisdiction to perpetuate an historically discriminatory status 
quo by diluting minority voting strength." App. 17a. After 
reviewing evidence of vote dilution in Bossier Parish, Judge 
Kessler concluded that "{i]t would be impossible to ignore the 
weight and the relevance of this § 2 evidence to the School 
Board's intent to dilute the voting strength of blacks in Bossier 
Parish." App. 22a. And she reiterated her previous conclusion, 
based on application of the Arlington Heights framework to the 
facts of this case, that "the only conclusion that can be drawn 
from the evidence is that [appellee] acted with discriminatory 
purpose." App. 23a (brackets omitted).

f lUG 2 0  ’ 9 8  1 4 : 4 5 2 0 2 6 8 2 1 3 1 2  P A G E . 021



A U G -20 -9 8  THU 1 4 :4 2 NAACP LDF DC OFC FAX NO. 2 0 2 6 8 2 1 3 1 2 P .2 2

18
THE QUESTION PRESENTED IS SUBSTANTIAL

In the face of evidence that Bossier Parish School Board 
enacted its 1992 election plan in order to entrench a status quo 
that prevents black citizens of the Parish from electing 
representatives of their choice and to hinder improvement in the 
political position of blacks in the Parish, the district court 
concluded that the 1992 plan must be precleared because the 
record did not demonstrate that the Board intended to make the 
position of blacks worse' than before. Thus, the district court 
concluded that a voting change must be precleared even if the 
enacting covered jurisdiction adopted the change with the 
unconstitutional purpose of perpetuating discrimination against 
racial minorities. Because the district court's ruling rests on 
a fundamental misconception about the scope of Section 5 of the 
Voting Rights Act and threatens seriously to impair enforcemenc 
of the statute, this Court should note probable jurisdiction.

1. Section 5 of the Voting Rights Act of 1965 prohibits a 
covered jurisdiction from implementing a new voting plan unless 
it first obtains a declaratory judgment from the District Court 
for the District of Columbia, or an administrative determination 
from the Attorney General, that the new 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 CJ.S.C. 1973c. 
Section 5 does not merely prevent preclearance of a voting change

PUG 20 '98 14:45 202G821312 PfiGE.022



A U G -20 -9 8  THU 1 4 :4 2 NAACP LDF DC OFC FAX NO. 2 0 2 6 8 2 1 3 1 2 P .2 3

1 9
if ir has a retrogressive effect or if it is enacted with a 
retrogressive intent; its plain language precludes enforcement of 
a voting change enacted with "the purpose" of "denying or 
abridging the right to vote" on account of race.

This Court has consistently ruled, in accordance with that 
statutory language, that a voting plan is not entitled to 
preclearance if it was enacted with the intent to discriminate 
against racial minorities, and that the prohibited discriminatory 
purpose preventing preclearance is not limited to an intent to 
make the position of racial minorities worse. Most recently, in 
City of Pleasant Grove v. Uni_t_ed.. 'States, 479 U.S. 462 (1987), the 
Court denied preclearance to the annexation, by a city with an 
all-white population, of two parcels of land, one vacant and one 
inhabited only by a few whites. The Court affirmed the district 
court's ruling that the City of Pleasant Grove had failed to show 
that its annexations were untainted by a discriminatory purpose, 
id. at 469, even though it was agreed that the change could not 
possibly have been retrogressive of the position of black voters 
.in the City at the time of the annexation, since there were no 
such black voters there, id. at 470-471. The Court squarely 
rejected the contention that "an impermissible purpose under § 5 
can relate only to present circumstances," id. at 471, and 
affirmed the denial of preclearance on the basis of the City's 
"impermissible purpose of minimizing future black voting



AU G -2.0-98 THU 1 4 :4 3 NAACP LDF DC OFC FAX NO. 2 0 2 6 8 2 1 3 1 2 P .2 4

20

strength," id. at 471-472 (emphasis added) . "One means of 
thwarting this process [of black political empowerment," the 
Court noted, "is to provide for the growth of a monolithic white 
voting block, thereby effectively diluting the black vote in 
advance. This is just as impermissible a purpose as the dilution 
of present black voting strength." Ibid, (emphasis added).7

Similarly, in City of Richmond v. .Unlt_ed__States, 422 U.S.
358 (1977), the Court concluded that, if an annexation plan was
motivated by a discriminatory purpose, it must be denied 
preclearance, even if the plan does not have a prohibited effect 
on minorities' franchise. Although the Court concluded in that 
case that the annexation plan did not have a discriminatory 
effect on the position of minorities, it ruled that the inquiry 
could not stop at that point, because the district court had 
found that the annexation plan "was infected by the impermissible 
purpose of denying the right to vote based on race through 
perpetuating white majority power to exclude Negroes from office 
through at-large elections." Id - at 373. The Court remanded for 
further proceedings on the issue of the City of Richmond's 
intent, and it stressed that, even though the effect of the

7 In reaching that conclusion, the Court rejected the 
argument, advanced in dissent, that, "for a city to have a 
discriminatory purpose within the meaning of the Voting Rights 
Act, it must intend its action to have a retrogressive effect on 
the voting rights of blacks." City of Pleasant— Grove, 479 U.S.
at 474 (Powell, J-, dissenting); see id. at 471 n.ll (opinion of 
the Court, rejecting dissent's position).



A U G -2 0 -9 8  THU 1 4 :4 3 NAACP LDF DC OFC FAX NO. 2 0 2 6 8 2 1 3 1 2 P .2 5

21
annexation might have been permissible, nonetheless "[a]n 
official action, whether an annexation or otherwise, taken for 
the purpose of discriminating against Negroes on account of their 
race has no legitimacy at all under our Constitution or under the 
statute. Section 5 forbids voting changes taken with the purpose 
of denying the vote on the grounds of race or color." Id. at 
378 .

This Court's summary affirmance of the district court's 
denial of preclearance in Busbee v. Smith, 549 F. Supp. 516 
(D.D.C. 1982), aff’d, 459 U.S. 1166 (1983), also holds that a 
voting change must be denied prcclcarance if it wa3 enacted with 
a discriminatory purpose, even if that purpose was not 
necessarily retrogressive, i .e ., intended to make the position of 
minorities worse. The redistricting plan at issue in Busbee was 
conccdcdly not retrogressive in effect, and in fact it increased 
black voting strength somewhat. 549 F. Supp. 516. The district 
court, however, relying upon evidence of Georgia's intent to 
avoid the creation of a majority-black district in the Atlanta 
area, denied Section 5 preclearance. Id. at 516-518. The court 
explained that the redistricting plan was "being denied 
preclearance because State officials successfully implemented a 
scheme designed to minimize black voting strength to the extent 
possible, [and] the plan drawing was not free of racially

discriminatory purpose. Id. at 518. It therefore denied



AUG-20-98 THU 1 4 :4 3 NAACP LDF DC OFC FAX NO. 2026821312 P .25

21
annexation might have been permissible, nonetheless "[a]n 
official action, whether an annexation or otherwise, taken for 
the purpose of discriminating against Negroes on account of their 
race has no legitimacy at all under our Constitution or under the 
statute. Section 5 forbids voting changes taken with the purpose 
of denying the vote on the grounds of race or color." Id. at 
378 .

This Court's summary affirmance of the district court's 
denial of preclearance in Busbee v. Smith. 549 F. Supp. 516 
(D.D.C. 1982), aff'd, 459 U.S. 1166 (1983), also holds that a 
voting change must be denied prcclcarance if it was enacted with 
a discriminatory purpose, even if that purpose was not 
necessarily retrogressive, i.e ., intended to make the position of 
minorities worse. The redistricting plan at issue in Busbee was 
conccdcdly not retrogressive in effect, and in fact it increased 
black voting strength somewhat. 549 F. Supp. 516. The district 
court, however, relying upon evidence of Georgia's intent to 
avoid the creation of a majority-black district in the Atlanta 
area, denied Section 5 preclearance. Id. at 516-518. The court 
explained that the redistricting plan was "being denied 
preclearance because State officials successfully implemented a 
scheme designed to minimize black voting strength to the extent 
possible, [and] the plan drawing was not free of racially 
discriminatory purpose." Id. at 518. It therefore denied

f tUG 2 0  ’ 9 8  1 4 : 4 8 2 0 2 8 8 2 1 3 1 2  P A G E . 0 2 5



AU G -20-98 THU 1 4 :4 3 NAACP LDF DC OFC FAX NO. 2026821312 P .26

22

preclearance squarely on a finding that Georgia had acted with a 
discriminatory, but not retrogressive, intent.

In its appeal from the district court's judgment, the State 
included the following question in its jurisdictional statement: 
"Whether a Congressional reapportionment plan that does not have 
the purpose of diminishing the existing level of black voting 
strength can be deemed to have the purpose of denying or 
abridging the right to vote on account of race within the meaning 
of Section 5 of the Voti-ng Rights Act." 82-857 Juris. Stmt. I. 
The State also argued that, "[a]bsent a purpose to diminish the 
existing level of black voting strength or to despoil theretofore 
enjoyed voting rights, [a voting change] cannot have a 
discriminatory purpose within the meaning of Section 5." Id. at 
22. In response, the government noted that "[t]he core of [the 
State's] argument is that the only discriminatory purpose that 
violates Section 5 is a purpose to * * * cause retrogression," 
and argued that this reading of Section 5 was foreclosed by city 
iiLRic.hiaan_Cl, 82-857 Mot. to Aff. 5-6. Thus, this Court's
summary affirmance in Busbee. necessarily rejected the contention 
that a voting plan enacted with a nonretrogressive, yet 
discriminatory, purpose may be precleared and "prevent[s] lower 
courts from coming to opposite conclusions on that issue."

PUG 2 0  ' 9 8  1 4 : 4 6 2 0 2 6 8 2 1 3 1 2  P A G E . 0 2 6



AU G -20-98 THU 1 4 :4 3 NAACP LDF DC OFC FAX NO, 2026821312 P. 27

23
Mandel v. Bradley, 432 U.S. 173, 176 (1977).8

The Court's decisions in these cases are fully consistent 
with Congress's overriding purpose in enacting Section 5, which 
was to give effective protection to the constitutional right 
against purposeful racial discrimination in voting, secured by 
the Fifteenth Amendment. See South Carolina v. Kat zenbach. 383 
U.S. 301, 325-326 (1966); City of Rome v. United States, 446 U.S. 
156, 173-178 (1980). Congress required certain jurisdictions to 
obtain preclearance' of their voting changes precisely because 
those jurisdictions had a "demonstrable history of intentional 
racial discrimination in voting" in violation of the Fifteenth 
Amendment, and because their voting changes carried a "risk of 
purposeful discrimination." Id. at 177. Thus, although there 
has been disagreement over "how far bevond the Constitution's 
requirements Congress intended [Section 5] to reach," this Court 
has never expressed doubt that Congress intended Section 5's 
preclusion of discriminatory voting changes "to reach as far a.s 
the Constitution itself." App. 57a (Breyer, J.) To hold 
otherwise would be to conclude that Section 5 -- one of the

3 See also Beer v. United States, 425 U.S. 130, 141 
(1976) (noting that even an ameliorative election plan can 
violate Section 5 "if it so discriminates on the basis of race or 
color as to violate the Constitution"); City of Port Arthur v. 
United States, 459 U.S. 159, 1S8 (1982) (even if electoral scheme
might reflect political strength of a minority group, "the plan 
would nevertheless be invalid [under Section 5] if adopted for 
racially discriminatory purposes") .

PUG 2 0  ' 9 8  1 4 : 4 7 2 0 2 5 8 2 1 3 1 2  P P G E . 0 2 7



AU G -20-98 THU 1 4 :4 4 NAACP LDF DO OFC FAX NO. 2026821312 P .28

24
federal government's principal weapons in its arsenal against 
unconstitutional racial discrimination in voting, enacted by 
Congress under its authority to enforce the Fifteenth Amendment 
because previous methods of protecting voting rights had proven 
effective (City of Rome. 446 U.S. at 174) -- does not in fact 
reach long - entrenched racial discrimination in voting that 
violates that Amendment.

It is particularly implausible that Congress would have 
intended that the Attorney General give preclearance to voting 
changes enacted with a racially discriminatory purpose, solely 
because those changes were not intended to make the position of 
racial minorities worse than before. Indeed, in 30 years of 
enforcement of the Voting Rights Act, the Department of Justice 
has always examined voting changes submitted for preclearance to 
determine whether they were enacted with a discriminatory 
purpose, even if that purpose was not retrogressive; the 
Department has never limited its preclearance review to a search 
for "retrogressive intent." The Attorney General's published 
procedures for Section 5 submissions do not even recognize the 
concept of "retrogressive intent," but rather make clear that 
"the Attorney General will consider whether the change is free of 
discriminatory purpose and retrogressive effect in light of, and 
with particular attention being given, to_ the requirements of the 
14th, 15th, and 24th amendments to the Constitution." 28 C.F.R.

PUG 2 0  ’ 3 8  1 4 : 4 7 2 0 2 S 8 2 1 3 1 2  P R G E . 0 2 8



AU G -20-98 THU 1 4 :4 4  NAACP LDF DC OFC FAX NO, 2026821312 P .2

25
51.55(a). That longstanding and consistent construction of 
Section t> by the Attorney General is entitled to "particular 
deference" in light of her "central role" in administering 
Section 5, see Dougherty Countv Bd. of Educ. v. Hilite, 439 U.S. 
32, 39 (1978), and a holding to the contrary of that construction 
would effect a fundamental change in the operation of the Act.

2. Under the principles outlined above, the district 
court's preclearance of the Police Jury plan was legally 
erroneous. Despite this- Court’s instruction that ”[t]he 
existence of such a [non-retrogressive, but nonetheless 
discriminatory] purpose, and its relevance to § 5, are issues to 
be decided on remand," App. 46a, the district court declined to 
decide whether the Board had acted with such a purpose, and 
instead limited its inquiry to "whether the record disproves 
[appellee's] retrogressive intent in adopting the Jury plan,"
App. 4a, a claim the government had never made. The district 
court's erroneous constriction of its legal analysis led it 
improperly to preclear the 1992 plan, notwithstanding its own 
factual findings and the underlying stipulated record, which 
plainly support, if not compel, a conclusion that appellee acted 
with discriminatory intent in adopting that Plan.

First, the district court's own evaluation of the Board's 
motivation for adopting the Police Jury plan leads to the 
conclusion that the Board acted with a discriminatory purpose.

AUG 2 0  ' 3 8  1 4 : 4 7 2 0 2 6 8 2 1 3 1 2  P A G E . 0 2 9

CO



AU G -20-98 THU 1 4 :44 NAACP LDF DC OFC FAX NO. 2026821312 P. 30

26
The district court readily acknowledged that the Board was 
motivated by "a tenacious determination to maintain the status 
quo." App. 7a. It also accepted that the record "establishes 
rather clearly that the board did not welcome improvement in the 
position of racial minorities with respect to their effective 
exercise of the electoral franchise." Ibid. The district 
court's previous decision in this case also recognized that the 
Board had initially disliked the Police Jury plan, for valid 
reasons, and that it turned to that plan only after the 
redistricting process "began to cause agitation within the black 
community." App. 106a. Thus, while the district court 
characterized the 1992 Plan as a "close port" available in a 
"storm," ibid.. the "storm" was merely the Board's realization 
that the black community was seeking improvement in its political 
position, something the Board was determined to oppose.

Second, the record amply supports a conclusion that the 
Board adopted the Police Jury plan in order to prevent any 
advance in the political position of blacks -- as the district 
court would surely have found, had it engaged in the proper 
analysis of the Board's intent under the well settled framework 
of Vi 11 ace of Arlington Heights v. Metropolitan Housing 
Development Corp., 429 U.S. 252, 265-267 (1977).9 Under the

’ As this Court explained in its prior opinion in this 
case, Arljnnt.on Heights has served as the framework for examining 
discriminatory purpose in equal protection cases and "has also

PlUG 2 0  ' 9 8  1 4 : 4 7 2 0 2 B 8 2 1 3 1 2  P A G E . 0 3 0



AU G -20-98 THU 1 4 :4 4 NAACP LDF DC OFC FAX NO. 2026821312 P, 31

27
Arlington Heights framework for evaluating intent, the "important 
starting point" is whether the impact of the official action 
"bears more heavily on one race than another." Arlington 
Heights, 429 U.S. at 266. As this Court noted in its prior 
opinion in this case, a "jurisdiction that enacts a plan havinq a 
dilutive impact [on blacks' votes] is more likely to have acted 
with a discriminatory intent." App. 47a. On remand, it was 
undisputed that the Police Jury plan had a dilutive impact on 
blacks' exercise of the franchise; the Board conceded in its 
brief on remand that "the School Plan did dilute black voting 
strength." Board Br. 21 (filed Oct. 23, 1997). See also App. 
201a-206a (stipulations establishing that white majority in 
Parish usually votes sufficiently as a bloc to defeat black 
minority's preferred candidate).

Arlington Heights also instructs that the historical 
background of a decision is particularly relevant "if it reveals 
a series of official actions taken for invidious purposes." 429 
U.S. at 267 ; see also Rogers v. Lodge. 458 U.S. 613, 625 (1982) . 
The district court did not doubt that the Board's history 
included a litany of actions taken for a discriminatory purpose, 
most notably "the school board's resistance to court-ordered 
desegregation" and its "failure to maintain a bi-racial committee

been used, at least in part, to evaluate purpose in [the Court's] 
Section 5 cases." App. 48a (citing City of Pleasant Grove, and 
Busbee, supra) .

RUG 2 0  ’ 9 8  1 4 : 4 8 2 0 2 6 8 2 1 3 1 2  P A G E . 0 3 1



AU G -20-98 THU 1 4 :4 5 NAACP LDF DC OFC FAX NO. 2026821312 P. 32

28
to recommend to the School Board ways to attain and maintain a 
unitary system and to improve education in the parish." App. 7a. 
It found that history irrelevant, however, because it proved at 
most "a tenacious determination to maintain the status quo," 
rather than retrogression.'ibid. -- even though that status quo 
was the legacy of de jure segregation in the Parish's public 
schools .

Arlington Heights holds further that substantive changes in 
a decisionmaker's position are relevant "particularly if the 
factors usually considered important by the decisionmaker 
strongly favor a decision contrary to the one reached." 429 U.S. 
at 267. The district court indeed found "[e]vidence in the 
record tending to establish that the board departed from its 
normal practices" in adopting the 1992 plan. App- 7a. Under 
"normal practices," the Board 3urely would not have rushed to 
adopt a redistricting plan that pit two pairs of incumbents 
against each other and left other districts without any 
Incumbent. See App. 178a. It is therefore unsurprising that the 
Board initially rejected the Police Jury plan as unsuitable for 
its purposes and turned to it only when it realized that it 
provided the only available to plan to prevent improvement in the 
political position of blacks in the Parish.10

10 As for the Arlington Heights factor of contemporaneous 
statements by decisionmakers (429 U.S. at 267), the district 
court noted evidence that a some Board members were hostile to

BUG 2 0  ' 9 8  1 4 : 4 8 2 0 2 6 8 2 1 3 1 2  P R G E . 0 3 2



AUG-20-98 THU 1 4 :4 5 NAACP LDF DC OFC FAX NO. 2026821312 P .33

29
The district court's cursory statement that "it can imagine 

a set of faces chat would establish a ’non-retrogressive, but 
nevertheless discriminatory, purpose,' but those imagined facts 
are not present here" (App. 3a-4a) demonstrates that it failed to 
apply the Arlington Heights framework to ascertain the existence 
vel non of such a discriminatory purpose. As Judge Kessler 
correctly pointed out, the majority "examine[a] each of the 
Arlington Heights factors * * * only for the purpose of finding 
evidence of retrogressive intent." App. 24a. Thus, the majority 
followed most of its findings establishing that the Board did not 
want blacks in the Parish to improve their voting strength with a 
statement that such evidence did not show the intent tc
retrogress. See pp. -- , supra. The lower court's failure to
apply the Arlington Heights framework to the broader question of 
discriminatory intent was error.

3. The district court's decision to preciear the 1992 plan 
cannot be sustained by its determination that two of the Board's 
proffered explanations for adopting that plan -- "guaranteed

black representation on the Board, but it reaffirmed its earlier 
conclusion that those statements did not establish discriminatory 
intent. App. 7a-8a, 109a-llla. The government did not contend 
that those statements, standing alone, sufficed to prove 
discriminatory intent; rather, wc argued, as Judge Kessler wrote 
in her initial dissent, that, when "considered in the context of 
the School Board's discriminatory past," *”th[cse] statements add 
further proof of improper motive," and "it seems fair to conclude 
that at least some School Board Members were openly 'hostile' to 
black representation on the school board." App- 133a.

AUG 2 0  ' 9 8  1 4 : 4 8 2 0 2 8 8 2 1 3 1 2  P A G E . 0 3 3



PrUG-20-98 THU 1 4 :4 5 NAACP LDF DC OFC FAX NO. 2026821312 P. 34

30
preclearance" by the Attorney General and "easy implementation 
(because no precinct lines would require redrawing)" -- were 
legitimate and nondiscriminatory reasons. See App. 5a, 106a.
Even if the court were correct that these proffered reasons were 
not pretextual, the decision to preclear the plan was still 
erroneous as a matter of law, because the record clearly 
demonstrates that the Board also acted with a discriminatory 
intent in adopting the 1992 plan.11 A jurisdiction seeking 
preclearance has the burden to prove "the absence of 
discriminatory purpose" on its part. City of Rome. 446 U.S. at 
172 (emphasis added); City of Pleasant Grove, 479 U.S. at 469. A 
jurisdiction's election plan is not entitled to preclearance if 
it was enacted with a discriminatory motive, even if the plan 
also presented legitimate features. The fact that the 
jurisdiction may have had some legitimate interest in enacting 
the change does not permit the court to ignore its discriminatory 
motivation in doing so.

The Board's hope for "guaranteed preclearance" of the 1992

11 Tn fact, the district court's decision to credit the 
Board's two proffered reasons for adopting the 1992 plan as 
legitimate and nondiscriminatory is clearly erroneous, for the 
record demonstrates that those reasons were pretextual. The 
court's legal errors, however, are sufficient for reversal. In 
particular, because the Board has the burden of proving the 
absence of a discriminatory purpose on its part, the presence of 
such an impermissible purpose requires denial of preclearance, 
even if the Board also had a plausible, legitimate interest in 
adopting the plan.

AUG 2 0  ' 9 8  1 4 : 4 8 2 0 2 S 8 2 1 3 1 2  P A G E . 0 3 4



AUG -20-98 THU 1 4 :4 6 NAACP LDF DC OFC FAX NO. 2026821312 P .35

31
plan is insufficient to prove the absence of discriminatory 
purpose on its part. The Board might well have turned to the 
Police Jury plan in part because it recognized that the plan's 
"guaranteed preclearance" would enable it to continue in place a 
discriminatory status quo without detection or objection by the 
Attorney General. Moreover/ the record shows that guaranteed 
preclearance, alone, did not induce the Board to adopt the Police 
Jury plan. Since that plan was precleared for Police Jury 
elections on July 29, 19-91, the Board could have adopted it at 
its September 5, 1991, meeting, yet it continued to consider
adopting another plan for more than a year. See pp. supra.
In fact, the Board initially decided to commission a different 
plan because the Police Jury plan did not protect the 
incumbencies of four Board members and did not reflect school 
locations, and it turned to the Police Jury plan only after the 
opposition of the black community had become apparent. See pp. - 
-, supra. There must, therefore, have been another motivating 
factor behind the Board's decision, which can only be explained 
as the Board's desire to prevent blacks from making effective use 
of their voting strength. Similarly, concerns over splitting 
precincts did not persuade the Board to adopt the Police Jury 
plan either initially or during its efforts to draw a plan that 
satisfied its interests regarding incumbencies and school 
locations. Instead, the Board abruptly abandoned that search,

AUG 2 0  ' 9 8  1 4 : 4 9 2 0 2 6 8 2 1 3 1 2  P A G E . 0 3 5



AUG-2 0 -9 8  THU 1 4 :4 6  NAACP LDF DC OFC FAX NO. 2026821312 P. 36

32
mors than two years before the next election, only when the NAACP 
plan demonstrated the possibility of drawing majority-black 
districts in the Parish. The Board also made no attempt to 
examine measures that would have reduced the number of precinct 
splits in a plan that would have provided for some black 
electoral opportunity. See App. 180a. Thus, even if one 
favorable feature about the Police Jury plan was that it did not 
require precinct splitting, that does not mean that the Board 
acted without a dis'eriminatory purpose in adopting it.

4. For the reasons we have explained, the district court's 
evaluation of the Police Jury plan was legally flawed. Because 
of the importance of those legal errors for the administration of 
Section 5, plenary review by this Court is warranted. The 
district court's decision to preclear an election plan without 
deciding whether it was infected by an unconstitutional, racially 
discriminatory motive (and in the face of evidence that it was) 
is a significant turn in Section 5 jurisprudence. Future three- 
judge panels of the District Court for the District of Columbia 
hearing preclearance cases under Section 5 are likely to follow 
the analysis of the lower court in this case. See App. 97a-98a 
n.9 (district court noting that prior decisions of ehree-judge 
preclearance panels are particularly persuasive because, "in this 
curious corner of the law," only this Court and three-judge 
panels of the District Court for the District of Columbia may

AUG 2 0  ’ 9 8  1 4 : 4 9 2 0 2 6 8 2 1 3 1 2  P A G E . 0 3 8



AU G -20-98  THU 1 4 :4 6  NAACP LDF DC OFC FAX NO. 2026821312 P. 37

'33
consider these questions). Because preclearance cases may be 
brought only in the District Court for the District of Columbia, 
there is no opportunity for further percolation of these issues 
in other federal courts, and because appeals from such cases lie 
only to this Court, only this Court can correct the legal errors 
ot the district court in this case. Moreover, because the 
Attorney General is required, for every preclearance submission, 
to consider whether the covered -jurisdiction acted without a. 
discriminatory purpose, -the question whether that prohibited 
purpose is limited to a retrogressive intent is of critical 
importance to her administration of Section 5. In particular, 
the existence or absence of a discriminatory purpose is central 
to the Attorney General's evaluation of redistricting plans. The 
significance of the question presented for the administration of 
Section 5 therefore warrants this Court's plenary consideration.

AUG 2 0  ' 9 8  1 4 : 4 9 2 0 2 S 8 2 1 3 1 2  P A G E . 0 3 ?



AU G -20-98  THU 1 4 :4 6 NAACP LDF DC OFC FAX NO. 2026821312 P. 38

34
CONCLUSION

*

The Court should note probable jurisdiction.
Respectfully submitted.

SETH P. WAXMAN 
Solicitor General

ANITA S. HODGKISS
Acting Assistant Attorney GenexalL

BARBARA D. UNDERWOOD
Deputy Solicitor General

PAUL R.Q- WOLFSON
, Assistant, to the Solicitor Genej-al

MARK L. GROSS 
LOUIS E. PERAERTZ

SEPTEMBER 1998

AUG 2 0  ’ 3 8  1 4 : 4 9 2 0 2 6 8 2 1 3 1 2  P A G E . 0 3 8