Memo from Napoleon Williams to Jack Greenberg and James Nabrit RE Partial Summary Judgement Motion in Major v Treen (Redacted)

    Memorandum 

Jack Greenberg 
James M. Nabrit 

Napoleon B. Williams, Jr. 

Partial Summary judgment motion in Major v. Treen, 
on current Congressional districting scheme. 

  

  

For your information, there is enclosed a 
draft of a proposed motion for summary judgment 
in the above case. The purpose of this draft is 
basically to provide a substitute for the motion 
for summary judgment previously filed in Louisiana 
in this case by William Quigley and Jim Kellogg, 
local counsel. 

Lani Guinier 

Attach 

 



May 19, 1982 

William P. Quigley, Esq. 
R. James Kellogg, Esq. 

631 St. Charles Avenue 
New Orleans, Louisiana 70130 

Re: Barbara Major, et al. v. David 
C. Treen, st al. 
  

Dear Bill and James: 

Enclosed is a Supplemental Mem@randum of 
Law ix support of the motion for partial 
summary judgment in the above case. You 
may wish to consider whether you should 
use it. 

Please insert the date in April, on the 
first page of the Supplemental Memorandum, 
in which the action was submitted. Also, 
Please forward a copy of the Complaint 
which was filed. We seem to have lost 
our copy. Thank you. 

Sincerely, 

Napoleon B. Williams, Jr. 

NBW/r 
Enclosure 

 



Curriculum Vitae 
  

December 

HENDERSON, Gordon Grant 

Age: 50 Married 3 children 

Home address: 

Present position: Director of the Computing Center and 
Professor of Political Science 

Earlham College 
Richmond IN 47374 

Previous positions: 

l. Professor of Political Science and 
Director of the Computer Center 

Tougaloo College 

Tougaloo MS 39174 

Professor of Government 

Texas Tech University 
Lubbock TEXAS 79409 

Partner in DATA SURVEYS a survey research firm 
Suite 410 Arizona Title Building 
Phoenix ARIZONA 85003 

Special Assistant to the Governor 
Samuel. P. Goddard, Jr. of Arizona 
State Capitol 
Phoenix ARIZONA 85007 

Associate Professor of Political Science and 
Chairman 

Department of Political Science 
Millsaps College 
Jackson MS 39210 

Instructor in Political Sciende 
Department of Political Science 
Middlebury College 

Middlebury VERMONT 

Lecturer in Government 

City College of New York 
New York NEW YORK  



Lecturer in Government 

Rutgers, The State University 
New Brunswick NEW JERSEY 

Academic preparation: 

A.B. Columbia College, 1953 

M.A. Columbia University, 1954 
Ph.D. Columbia University, 1962 

Academic interests by fields: 

American government and politics (policy analysis) 
Computer programming 
Political parties and voting behavior 
Research design and methods, including computer techniques 

Publications: 

Books: 

An Introduction to Political Parties (New York: 
Harper - Row, 1976)   

American Democracy: People, Politics, and Policies 
(Cambridge: Winthrop, 1979)   

An Instructor's Manual for American Democracy: 
People, Politics, and Policies (Cambridge: Winthrop, 
1979) ? 

  

  

Student Guide, American Democracy: People, Politics, 
and Policies (Cambridge: Winthrop, 1980)   

  

Articles: 

"Teaching Elementary Statistics with a Computer- 
Generated Individualized Student Dataset, ' DEA NEWS 

Winter 1977. 

"Policy by Default: The Origin and Fate of the 

'Prescott Letter'," 69 Political Science Quarterly 
(March 1964), 76-95.   

"The New Republicans of Mississiippi," 20 New South 
(June 1965). von 

"Notes on Mississippi," 20 South (October, 1965) 

"In A Time of Passage," 21 South (Spring 1966). 

1956 1957 

 



"If You Don't Know Where You're Going, Any Road Will Take You There," Millsaps Bulletin (Spring 1964). 
  

Book reviews: 

In Journal of Politics, Choice: Books for College 
Libraries, and the Mississippi Law Journal. 
  

  

  

Professional Memberships: 

American Political Science Association 
Midwest Political Science Association 
Mississippi Political Science Association 
New England Political Science Association 
Policy Studies Organization 
Political Science Academy 
Southern Political Science Association 
Southwestern Political Science Association 
Western Political Science Associaton 

Participation in professional organizations: 

A. 1. Member of the Council, Mississippi Polititical 
Science Association, 1979-1981 

2. Secretary-Treasurer of the Southwestern Political 
Science Association, 1970-1973 
Secretary of the Southern Political Science 
Science Association, 1965-1966 
President, Middlebury College chapter of the 
American Association of University Professors, 
1961-1962 

Currently serve as referee for articles/notes for 
Journal of Politics, Polity, American 
Journal of Political Science, and the Western 
Political Quarterly. 

  

  

  

member of NSF proposal review banels, 1977, 1978, 11930. 

Member of the faculty of the National Science 
Foundation-sponsored Conference on Educational 
Computing in Minority Institutions, New Orleans, 
Louisiana, March 1977.  



Delivered papers and/or chaired panels at 

(a) annual meeting of the Southern Political Science 
Association, 1981, 1976, 1970, 1966, 1964, 1963 

(b) annual meeting of the American Political Science 

Association, 1963 
(c) annual meeting of the Southwestern Political 

Science Association, 1970 
(d) annual meeting of the Rocky Mountain Political 

Science Association, 1969 

Grants and awards: 

Coauthor of grant ($130,000) funded by Lilly Foundation in 
support of the social sciences, 1979 

Coauthor of grant ($272,000) funded by National Science 
Foundation in support of science education, 1978 

Project Director of grant ($315,000) funded by National 
Science Foundation in support of science education, 
1973-1976 

Research grant from Texas Tech University to conduct a 
survey of political attitudes in Lubbock, 1970 

Recipient of post-doctoral fellowship from the National 
Center for Education in Politiics, under which 1 served 
as Special Assistant to the Governor, Samuel P. Goddard, 
Jr., of Arizona 

Director of Field Foundation grant to Millsaps College 
to establish the Oral History of Contemporary Mississippi 
Life and Viewpoints, 1965 

Participant in "Conference on Mathematical Applications 
in Political Science," sponsored by the National Science 

Foundation, held at Southern Methodist University, Pallas, 
Texas, summer 1964 

Recipient of grants from the Faculty Research Fund of 
Millsaps College to aid in the preparation of data which 
appears in New South, 1962 and 1963 

Recipient of grant from the Merrill Foundation to conduct 
a survey of voter attitudes in Hinds County during the 
summer of 1963 

Recipient of DuPont Research Grant from Middlebury 

College which resulted in publication of article in 
the Political Science Quarterly, 1961 
   



Cases in which I have testified as an expert witness 
        

Reapportionment, redistricting and election cases 

Bassett v. Roberts, Federal District Court (Southern MS) 

Boykins v. City of Hattiesburg, Federal District Court 
(Southern MS) 

Connor v. Finch, Federal District Court (Southern MS) 

Kirksey v. City of Jackson, Federal District Court (Southern MS) 

Kirksey v. Hinds County Board of Supervisors, Federal District 
Court (Southern MS) 

Marshall v. East Carroll Parish, Federal District Court (Western LA) 

Mississippi v. United States, Federal District Court (DC) 

Parnell v. Rapides Parish, Federal District Court (LA) 

I. A. v. Terrebonne Parish, Federal District Court (LA) 

T. I. A. v. Houma, Federal District Court (LA) 

Title VII cases: 

Boykin v. Georgia-Pacific, Federal District Court (Southern MS) 

EE OC v. Georgia-Pacific, Federal District Court (Northern MS) 

EE OC v. Union Planters Bank, Federal District Court (TN) 

Helen Hall v. Small Business Administration, Federal District 

Court, Southern MS) 

Hubbs v. United Parcel, Federal District Court (Southern MS) 

Other: 

I have also testified in several cases tried in the state courts 
of Mississippi with respect to jury selection procedures, as 
an expert in statistics in Battle v. Jefferson Davis Memorial 
Hospital (U. 8. D. C., Southern District of Mississippi), and as 
an expert in an asbestos suit again Johns Mansville and others 
heard in the U. 8. D. C. for the Southern District of Mississippi. 

I have also been retained as a consultant and as a potential 
expert witness by attorneys in both districting and Title VII 
cases that have been settled before trial, and have done analyses 

of data in a number of cases that have not yet come to trial.  



UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA 

  

BARBARA MAJOR, et al., 

Plaintiffs, Civil Action No. 

Vv. 82-1192 
DAVID. C. TREEN, et al., iw his 

capacity as Governor of the State 
of Louisiana, and JAMES H. BROWN, 
in his capacity as Secretary of 
State of Louisiana, 

Section: HH (D) (CC) 

THREE JUDGE COURT CASE 
  

CLASS ACTION 
  

Defendants. 

  

SUPPLEMENTAL MEMORANDUM OF LAW 
IN SUPPORT OF PLAINTIFFS! 

MOTION FOR PARTIAL SUMMARY JUDGMENT 
  

Statement of Proceedings   

This action was commenced April r 1982, by plaintiffs 

on behalf of black citizens registered to vote in Louisiana. 

The Complaint seeks a declaratory judgment and an injunction 

enjoining defendants from conducting elections in the State 

of Louisiana pursuant to the State's pre-existing and current 

plans of apportionment for the election of members of the 

Louisiana House of Representatives of the United States Congress. 

Jurisdiction was grounded upon U.S.C. §§1331, 1343, and 

42 U.S.C. §1973c. Plaintiffs alleged claims for relief under 

Section 5 of the Voting Rights Act of 1965, as amended, 42 

U.S.C. §1973c; the Fourteenth and Fifteenth Amendments to 

the Constitution of the United States; and the Civil Rights 

Act of 1866, 42 U.S.C. §1983. The action is one which must 

be heard and determined by a district court of three judges 

pursuant t0:29 U.S.C. §$§2284(e) and 42 U.S.C. $1973c.  



The Complaint alleges that the State's recently enacted 

districting plan for elections to the House of Representatives 

of the United States Congress and the recently enacted plan 

of apportionment for the Louisiana House of Representatives, 

as well as the current electoral plans for those bodies, are 

void. The Complaint prays for injunctive relief against con- 

tinued operation, enforcement or administration of the challenged 

plans. 

The instant motion is for partial summary judgment. It 

pertains only to Louisiana's current districting plan for elections 

to the United States House of Representatives. Plaintiffs 

allege that the application of this plan, originally based upon 

the 1970 Census, is unconstitutional in light of the results of 

the 1980 Census. 

On March 30, 1982, United States District Judge Robert 

Collins entered an order in the present action scheduling April 

2, 1982 and April 13, 1982 as the dates for plaintiffs and 

defendants to file their respective memorandum of law with 

respect to plaintiffs' motion to consolidate the present case 

with Couhig v. Brown, C.A. 82-1136. Subsequently, Judge Collins 
  

dismissed the latter action and denied the motion for consolida- 

tion. On April 16, 1982, defendants, alleging that the issues 

herein were complex and citing the then pending motion to 

consolidate, filed a motion requesting an extension of time 

within which to answer the Complaint. 

Statement of Facts 
  

In 1976, the Louisiana Legislature enacted a bill, denom- 

inated as Act 1976, No. 687, which amended the districting 

scheme established by Act 1972, No. 3, for election to the 

House of Representatives of the United States Congress. The  



Congressional districting plan created by the 1976 statute 

is the districting plan presently in effect for Congressional 

election. The plan was drawn up on the basis of the 1970 

Census. The validity of its application in 1982 is the 

subject matter of the motion for partial summary judgment. 

On November 20, 1981, the Louisiana Legislature, in the 

First Extraordinary Session of 1981, enacted a redistricting 

plan for the United States House of Representatives. The plan 

was made effective January 3, 198 Its implementation is 

subject to the preclearance provisions of Section 5 of the Voting 

Rights Act of 1965, as amended, 42 U.S.C. §1973c. 

Under Section 5, the State of Louisiana, in the absence of 

a declaratory judgment by the United States District Court in 

the District of Columbia that the plan does not have the purpose 

or effect of discriminating on the basis of race or color, must 

submit all proposed voting changes, including redistricting plans, 

to the Attorney General of the United States for approval. Until 

the State obtains the approval of the Attorney General or the 

Attorney General fails to object within the stated statutory 

time period, the proposed voting change cannot be implemented, 

enforced or administered. 

The proposed Congressional districting plan enacted November 

20, 1981, has been submitted to the United States Attorney 

General for approval. Decision by the Attorney General on the 

validity of the plan under the Voting Rights Act is pending. 

Candidates for election to the United States House of 

Representatives must qualify under the current districting 

plan before expiration of the period July 5-9, 1982. The primary 

  

1l/ Act 20 of the First Extraordinary Session 1981, November 
20, 1982,  



and general elections to the United States House of Representatives 

are respectively set for September 11, 1982 and November 8, 1982. 

On April 14, 1982, the parties herein appeared before 

Judge Collins for oral argument on plaintiffs' motion for con- 

solidation and on a motion by defendants to dismiss the action 

entitled Couhig v. Brown, supra, in which the plaintiffs therein 
  

have sought to enjoin the implementation of the 1981 districting 

plan to the United States Congress. Mr. Eckard, counsel for 

defendant Secretary of State of Louisiana in the Couhig case, 

admitted in open court that the 1976 Congressional districting 

plan, when adjudged in light of the 1980 census, is "outmoded, 

outdated, and a patent violation of the constitutional rights 

of the people under the principles of one person-one vote." 

Mr. Eckard further admitted that the application of the 1976 

plan is, in light of the differences between the population 

counts of the 1970 census and 1980 census, "unfair, inadequate 

and unconstitutional." 

When the Louisiana Legislature drew up a Congressional 

districting scheme under the 1972 Act, No. 3, and the 1976 

Act, No. 697, it created eight Congressional districts in 

Louisiana. The total population of Louisiana under the 1980 

Census 1s 4,203,972. With a total of eight Congressional 

districts, the average, or ideal population per district is 

525,496. The population of any district, however, is greater 

or less than this ideal population of 525,496. The table below 

contains a list of the population count for each district, as 

well as the amount by which the population of that district 

falls short of the ideal population count and the percentage 

over or under the ideal amount by which it differs.  



TABLE A 

ABSOLUTE RELATIVE (%) 
DISTRICT POPULATION DEVIATION DEVIATION 

    

£23,271 - 24226 =o 2 

461,802 -53 ,695 -12.12 

571,131 -45,634 8.68 

508,593 -16,904 3.22 

507,539 -17,958 3.42 

377,140 +51,643 9.83 

543,235 +17,738 3.38 

511,261 -14,236 2+71 0
 

J 
On

 
UI
 

bd
» 
W
N
 

This chart shows that the greatest percentage difference 

in the relative deviations of any two districts is that between 

the Second Congressional District and the Sixth Congressional 

District. The combined sum of the relative deviations for the 

two Districtsis 21.95%, an amount which is termed the overall 

deviation. Thus, the 1972 Congressional districting plan, as 

modified by the 1976 plan, produces, when applied to 1980 figures, 

an overall population deviation of 21.95%. 

During the 1981 session of the Louisiana Legislature, 

there were four main Congressional reapportionment plans which 

were considered by the Legislature for enactment. They were 

as follows: (1) the "Nunez" Plan (named after its sponsor 

Representative Samuel Nunez); (2) the "Scott" Plan (named after 

its sponsor Representative John Scott); (3) the "Treen" Plan A; 

and (4) the "Treen" Plan B (the Treen Plans were named after their 

sponsor Governor David Treen). All of these plans had overall 

2/ 
population deviations which were less than 1.0%. They thus 

  

2/ See Exhibit "A" entitled "Comment Submitted To Justice 
Department, Office of Civil Rights, Voting Rights Section, 
Objecting to Louisiana's Reapportionment Plan for United States 
House of Representatives."  



show the feasibility of the enactment of Congressional re- 

districting plans which have far less than the overall popula- 

tion deviation of 21.95% produced by the continued application 

of the 1972 Congressional plan, as modified in 1976, under 

the 1980 statistics. 

On January 27, 1982, plaintiffs and others 

filed objections with the United States Department of Justice 

with respect to the 1981 Congressional reapportionment plan 

adopted by the State. The principal objection was non-compliance 

by the plan with the provisions of Sections 4 and 5 of the Voting 

Rights Act of 1965, as amended. 42 U.S.C. §§1973b-1973c. The 

Justice Department has yet to rule on the validity of the ob- 

jections. 

In light of the necessity for pre-clearance by the Justice 

Department of the 1981 Congressional plan, the objections filed 

against the plan, and the institution of this lawsuit, there is 

a substantial possibility that the 1981 Congressional plan will 

not be able to go into effect. If the 1981 plan is held invalid,’ 

continued application of the 1972 plan, as modified in 1976, 

would create serious federal constitutional problems under the 

Supreme Court's one person, one vote rule. 

To forestall an unconstitutional application of the 1972 

plan, as modified, plaintiffs request partial summary judgment 

declaring that the continued application of the 1972 plan would 

be violative of the federal guarantees under the equal protection 

clause of the Fourteenth Amendment to the Constitution of the 

United States and under Article I, §2 of the Constitution. 

Plaintiffs also request partial summary judgment enjoining the 

continued use of the 1972 plan.  



ARGUMENT 

PLAINTIFFS ARE ENTITLED TO PARTIAL SUMMARY JUDGMENT 
  

The provisions for partial summary judgment or summary 

judgment on all of a party's claims or defenses, are set 

forth in Rule 56, F.R.Civ.P. Rule 56(c) provides that summary 

judgment may be granted to a moving party if "there is no gen- 

uine issue as to any material fact and . . . the moving party is 

entitled td a judgment as a matter of law." To secure summary 

judgment, the movant must thus show that no substantial dispute 

exists between the parties as to any material facts involved 

in the action. See, Fountain v. Filson, 336 U.S. 681 (1949), 
  

reh'g denied, 337 U.S. 921 (1949). If it appears that a dis- 
  

puted issue of fact exists, then the motion should be denied 

and the case will proceed to trial. 

To insure that the party moving for summary judgment has 

the burden of showing the absence of a genuine issue as to any 

material fact, the federal rule requires that the materials 

produced upon the motion for summary judgment must be viewed 

in the light most favorable to the opposing party. See, Adickes 
  

Vv. S. H. Kress & Co., 398 U.S. 144 (1970); Pennsylvania v. 
  

  

Curtiss Nat, Bank, 427 F.2d 395 (5th Cir. 1970); Melancon Vv. 
  

  

Insurance. Co, of North America, 482 7.24 1057 (5th Cir. 1973). 
  

When a motion for summary judgment is made, the function of 

the trial court is not to try issues of fact but rather to 

determine whether there is or is not an issue of fact which 

must be tried. See Hawkins v. Frick-Reid Supply Corp., 154 
  

F.2d 88 (5th Cir. 19486). 

This Circuit has long followed the rule that a party can- 

not defeat summary judgment merely by feigning issues of fact  



or by simply expressing an optimistic hope that something 

may, somehow, turn up, sometime. See, DeBardeleben v. Cummings, 
  

343 P.2d 320 (5th Cir. 1972). Similarly, the rule in this 

Circuit is that a mere formal denial is insufficient to defeat 

a grant of summary judgment. See, Bros, Inc. v. W. E. Grace 
  

Mfg. CO., 261 F.2d 428 (5th Cir. 1958). 

The exceptions permitting summary judgment to be denied 

when a non-moving party cannot show that there are facts in 

dispute are few in number. One such exception permits the 

denial of summary judgment if the non-moving party can show 

that the movant has exclusive knowledge of the relevant material 

facts; see, e.g., Slagle v. United States, 228 F.2d 673 (5th 
  

Cir. 1956); or has exclusive possession of the evidence in the 

See e.g., XRT, Inc. v. Krellenstein, 448 F.24 772 (5th 
  

Cir. 1971). Under another exception, summary judgment can be 

denied if the issues in the action involve motive or intent or 

malice... See, Alabama. CG. 8. R. Co. .v. Louisville § N. R. Co., 
  

224 F.24.:1 (5th Cir. 1953) Time, Inc. v. Ragano, 274 F.24 219 
  

{5th .Cir, 1976). 

If, as is the case here, none of these special circumstances 

can be shown to exist and if the moving party also satisfies his 

burden of showing the nonexistence of any issue of material fact, 

then summary judgment must be granted. See, e.g., Chambers & 
  

Co. v. Equitable Life Assur. Society, 224 F.2d 338 (5th Cir. 
  

1955); Burce Constr, Corp, v. United States, 242 F.2d 873 (5th 
  

Cir. 1957). For the reasons listed below, plaintiffs will now 

show why there are no material issues of fact in dispute between 

the parties under the law governing resolution of this action.  



Iz 

THE CONTINUED APPLICATION OF THE 1972 
CONGRESSIONAL REDISTRICTING 

PLAN IS UNCONSTITUTIONAL 
  

A. The Governing Law 
  

Although the constitutional validity of a State's 

reapportionment plan for its Legislature is measured by 

the Fourteenth Amendment's equal protection clause, the 

constitutional validity of its Congressional districting 

plan is judged by the stricter standard of Article I, §2 

of the United States Constitution. See, White v. Weiser, 412 
  

U.8. 783:(1973).- In Wells v. Rockefeller; 394 U.S. 542 
  

(1969), in which the Supreme Court invalidated a New York 

reapportionment statute creating Congressional districts with 

an overall population deviation of 13%, the Court said Article 

I, §2 commands that "Congressional districting meet the 

standard of equal a for equal number of people 

as nearly as is practicable." = 394 U.S. at 544. 

Similarly, in Kirkpatrick v. Preisler, 394 U.S. 526 (1969), 
  

decided the same day as Wells v. Rockefeller, supra, the Court 
  

held unconstitutional a Missouri reapportionment statute which 

established Congressional districts with an overall population 

deviation of 5.97% when alternative districts could be drawn 

with less than an overall population deviation of 5.97%. In 

  

3/ As early as 1964, the Supreme Court had held in Wesberry 
v. Sanders, 376 U.S. 1 (1964) that "(W)hile it may not be 
possible (for the states) to draw Congressional districts 
with mathematical precision," id. at 18, Art. I, §2, Of the 
Constitution requires that "as nearly as'is practicable one 
man's vote in a Congressional election is to be worth as 
much as another's.” 14., at 7-8. 

  

 



its opinion, the Court emphasized that it: 

reject (ed) Missouri's argument 
that there is a fixed numerical 
or percentage population var- 
iance small enough to be considered 
de minimis and to satisfy without 
question the "as nearly as practi- 
cable" standard. 

394 U.S. at 530. The Court went on to state that Article I, 

§2 demands that "the 'as nearly as practicable' standard 

requires that the State make a good-faith effort to achieve 

precise mathematical equality." Id. at 530-531. It insisted 

that "{u)nless population variances among Congressional districts 

are shown to have resulted despite such effort, the State must 

4/ 
justify each variance, no matter how small." ~ Id. at 531. 

The ultimate purpose of the "(e)qual representation for 

equal numbers of people standard," Kirkpatrick v. Preisler, 
  

supra at 531, the Court said, is "to prevent debasement of 

voting power and diminution of access to elected representatives." 

Id. This standard must be maintained, the Court said, because 

"(t)oleration of even small deviations detracts from these pur- 

poses." Id. 

In holding that the Missouri plan was unconstitutional, the 

Court in Kirpatrick v. Preisler, supra, specifically rejected 
  

Missouri's arguments that the particular variances were necessary 

(1) to avoid the fragmentation of areas with distinct economic 

and social interests (2) to obtain appropriate legislative 

compromises; or (3) to avoid fragmenting political subdivisions 

by drawing Congressional district lines along existing county, 

  

4/ In justification of its refusal to accept the "de minimis" 
approach, the Court said that it saw "no nonarbitrary way to pick 
a cut-off point at which population variances suddenly become 
de minimis.” Xirkpatrick v. Preisler, gupra, 394 U.S. at 531. 
As an additional reason, the Court noted that "to consider a 
certain range or variances de minimis would encourage legislators 
to strive for that range rather than for equality as nearly as 
parcticable." Id. 

   



municipal, or other political subdivision boundaries. With 

respect to the first defense, the Court answered that 

"neither history, alone, nor economic or other sorts of group 

interests, are permissible factors in attempting to justify 

disparities from population-based representation. Citizens, 

not history or economic interests, cast votes." 14. 394 U. Ss. 

at 533, 

With respect to the second argument concerning the need 

for flexibility in order to obtain legislative compromises, the 

Court simply noted that " (p)roblems created by partisan politics 

cannot justify an apportionment which does not otherwise pass 

constitutional muster.” Id. 394 U.S. at 533. This answer, the 

Court held, also sufficed for the State's third argument based 

5/ 
on the need to maintain political boundaries. Id. at 533-534. 

Thus, the governing standard applicable to Congressional 

redistricting permits "only those population variances among 

Congrssional districts that 'are unavoidable despite a good- 

faith effort to achieve absolute equality, or for which justification 

is: shown!.” White.v. Weiser, 412 U.S. 783, 790 (1973). Underx 
  

this standard, the districts must be "as mathmatically equal 

as reasonably possible," id. 412 U.S. at 790, and the variances 

must be "unavoidable." Id. at 790. As pointed out in plaintiffs’ 

first memorandum in support of their Motion for Summary Judgment, 

  

5/ The Court also rejected another argument of the State that 
its deviations, or variances, were necessitated by the need to 
ensure geographical compactness of each Congressional district. 
It noted that neither an aesthetic preference for pleasingly 
shaped districts nor any claim that communications and trans- 
portation were inadequate, could justify population variances. 
Id. 394 0,8. at 536,  



the Supreme Court has invalidated under this standard, overall 

population deviations of 13.1%, Wells v. Rockefeller, supra; 
  

5.97%, Kirkpatrick v. Preisler, supra; and 4.13%, White v. 
  

Weiser, supra 412 U.S. at 785-790. 
  

B. The Application of the Congressional Districting Plan Is 

Unconstitutional in Light of the 1980 Census 
  

The overall population variance produced today by the 

continued application of the 1972 plan is 21.95%. This var- 

iance not only exceeds the variances held excessive in White 

v. Weiser; Kirkpatrick v. Preisler; and Wells v. Rockefeller, 
    

but it even exceeds the maximum 16.4% variance that the Supreme 

Court has permitted for reapportionment of state legislatures. 

See, Mahan v. Howell, 410 U.S. 315 (1973). Moreover, as plain- 
  

tiffs pointed out earlier herein, the variance of 21.95% is 

clearly not unavoidable since the 1981 plans (Treen, Henderson, 

Nunez), mentioned previously, achieved variances less than 1%. 

Thus, application of the 1972 Congressional plan violates 

Article I, §2 and its continued use should be enjoined. 

Conclusion   

For the reasons set forth herein, the Court should grant 

partial summary judgment declaring that application of the 

1972 Congressional districting law is unconstitutional and 

enjoining any further use of said 1972 Congressional districting 

law. 

Respectfully submitted, 

  

R. JAMES KELLOG, Trial Attorney 

WILLIAM P. QUIGLEY 

STEVEN SCHECKMAN 

STANLEY HALPIN 

631 St. Charles Avenue 

New Orleans, Louisiana 70130  



JACK GREENBERG 

JAMES ‘M. NABRI?, III 

NAPOLEON B. WILLIAMS, JR. 

LANI GUINIER 

10 Columbus Circle 

Suite 2030 
New York, New York 1001° 

Attorneys for Plaintiffs 

Dated: May, 1982 

 



LAW OFFICES OF 

QUIGLEY & SCHECKMAN 
631 ST. CHARLES AVENUE 

NEW ORLEANS, LOUISIANA 70130 

TELEPHONE: 504-524-0016 

WILLIAM P. QUIGLEY IN ASSOCIATION WITH 
STEVEN SCHECKMAN R. JAMES KELLOGG 

MARK S. GOLDSTEIN 

Mr. David R. Poynter 

Special Assistant Attorney General 

344 Napoleon Street 
Baton Rouge, LA 70802 

Kenneth C. Dejean 

Chief Counsel 

Department of Justice 

P.O. Box 44005 

Baton Rouge, LA 70804 

RE: Major v. Treen 

Gentlemen: 

I have received your recent Motion to Order Separate Trials of the Louisiana 

Congressional reapportionment and Louisiana House of Representatives reappor- 

tionment. We have filed the enclosed, which sets forth our position that we 

have no objection to the Motion, but we specifically reserve the right to request 

the Court hearing the second trial to take judicial notice of certain evidence 

to be presented in the first trial, relating to historical discrimination and 

similar items. As I've mentioned to each of you before, we see little reason 

in presenting identical evidence relating to these issues in two separate pro- 

ceedings before the same court. 

As you know, we have filed a Motion for Summary Judgment as to the constitutionality 

of the 1976 reapportionment of the Louisiana congressional districts. Ken has 

stated his position both to me and to Judge Collins that the State will probably 

be able to join in that Motion. If that is the case, I would appreciate confir- 

mation of your position in writing at the nearest opportunity. We will be moving 

in the very near future to convene the three-judge court, so that they may be in 

place to act quickly if the need arises. Furthermore, we anticipate requesting a 

status conference immediately after the Motion for Summary Judgment is heard on 

May 26. 

If the U.S. Department of Justice has not cleared the 1981 Congressional Plan by on 

or about June 1, we will ask the Court to establish an expedited schedule of disco- 

very so that trial of this case can be held prior to September 1. It is my best 

guess at this point that the July qualification dates may have to be postponed, but 

we intend to allow the Justice Department and/or the State Legislature a short period 
of time within which to address the Congressional reapportionment problem.  



Mr. David R. Poynter 

Kenneth C. Dejean 

May 11, 1982 

Page 2 

It is my understanding from the conversation with David's staff that he will 

be representing the State only as to the State House of Representatives 

reapportionment. If that is the case, I would appreciate confirmation in 

writing. 

Thank you for your attention to these matters. 

Sincerely, 

R. James Kellogg 

P.S.--Since this letter was dictated, Judge Duplantier has rescheduled the 
May 26 hearing for June 2. 

RJK 

RJK/jag 
cc: Lani Guinier 

Napoleon B. Williams 

Stanley A. Halpin 

William P. Quigley  



UNITED STATES DISTRICT COURT   
EASTERN DISTRICT OF LOUISIANA 

BARBARA MAJOR, ET AL CIVIL ACTION 

versus NUMBER 82-1192 

DAVID C. TREEN, ET AL SECTION H (D) (C) 

RESPONSE TO MOTION 

FOR SEPARATE 

TRIALS 
  

The defendants in this matter have moved to hold separate trials 

on the two malapportionment claims presented by the Complaint filed in this 

matter (the Louisiana Congressional Districts and the Louisiana State House 

of Representatives Districts). 

Plaintiffs do not object to separate trials for the two claims, 

but specifically reserve the right to request the Court in the second trial 

to take judicial notice of any or all of the evidence presented in the first 

trial, to avoid repetition and redundancy. 

Respectfully submitted, 

R. JAMES KELLOGG, Trial Attorney 

WILLIAM P. QUIGLEY 

STEVEN SCHECKMAN 

STANLEY A. HALPIN 

631 St. Charles Avenue 

New Orleans, LA 70130 

504/524-0016 

JACK GREENBERG 

JAMES M. NABRIT, III 

NAPOLEON B. WILLIAMS, JR. 

LANI GUINIER 

NAACP Legal Defense and Educational 

Fund, Inc. 

10 Columbus Circle 

New York, New York 10019 

212/586-8397 

BY: 

R. JAMES KELLOGG 
       



UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA 

BARBARA MAJOR, ET AL | CIVIL ACTION 

VERSUS NO. 82-1192 

DAVID C. TREEN, ET AL. SECTION: H (D) (C) 
i 

1 I THREE JUDGE COURT CASE 
I 
H CLASS ACTION 

  

  

i 

NOTICE OF MOTION i 
  

PLEASE TAKE NOTICE that the attached Motion for Summary Judgment will 

| 
be heard in this matter on May 26, 1982 at 9:00 A.M. 

| 
I 

| 
| 
{ 

| 
I 
| 
i 

i 

i | 
il 

RESPECTFULLY SUBMITTED: 

- 

R. JAMES KELLOGG, Trial Attorney 

WILLIAM P. QUIGLEY 

STEVEN SCHECKMAN 

STANLEY HALPIN 

631 St. Charles Avenue 

New Orleans, Louisiana 70130 

  

LANI GUINIER 

NAPOLEON B. WILLIAMS 

NAACP 

Legal Defense and Educational Fund, Inc 

. 10 Columbus Circle 
Suite 2030 
New York, New York 10019 

Attorneys for Plaintiffs   
| DATE: April 30, 1982   
il 1B] 

   



UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA 

|| BARBARA MAJOR, ET AL CIVIL ACTION 

|| VERSUS NO. 82-1192 
| 

{DAVID C. TREEN, ET AL SECTION: H (D) (C) 
| 11 
{ 

| 

THREE JUDGE COURT CASE 
  

CLASS ACTION 
  

  

i PLAINTIFF'S STATEMENT OF UNCONTESTED MATERIAL FACTS 

  NOW INTO COURT come plaintiffs who submit that the following material 

| facts are uncontested in this matter: 

I.   
Act No. 3 of the 1972 regular session of the Louisiana Legislature, 

| 
i 
| i 

| 

{ !{amended by Act. No. 697 of the 1976 session of the Legislature, established the 

| present congressional districts for the State of Louisiana. 

1%. 

According to this legislative action, eight (8) districts were estab- 
| 

lished for the State of Louisiana, with an ideal population of 455,398, accord- 

ing to 1970 Census figures. 

ITT. 

The population deviations and relative deviations of those eight (8) 

districts were as follows when they were enacted: 

1970 ABSOLUTE RELATIVE (%) 

DISTRICT POPULATION DEVIATION DEVIATION 
  

454,836 eo een 12 
454,809 -598 13 

455,575 +177 .03 

455,272 -126 .02 

455,205 -193 .04 

456,178 +780 Jul 

455,014 -384 .08 

456,291 +893 19 

    
  

OO
. 

i
d
 

O
N
 

A
T
E
 

P
S
 
d
N
 

Iv. 
1 

With 1980 Census figures, these eight (8) congressional districts have]   Hl 
{ 

| 

{ 

I 
lipopulation and relative deviations as follows:  



1980 ABSOLUTE RELATIVE (%) 

DISTRICT POPULATION DEVIATION DEVIATION 

523,271 -.2,226 -3.42 

461,802 -63,695 ~12.13 

571,131 +45,634 .68 

508,593 -16,904 

507,539 -17,958 

577,140 +51,643 

543,235 +17,738 

511,261 -14,236 

    

00
 

~~
 

O
v
 

WU
 

~~
 
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d
 

  
Vv. 

When enacted, these eight (8) congressional districts had an overall 

{population deviation of .31 percent. 

vi. 

Now, these eight (8) congressional districts have an overall population 

| 

lldeviation of 21.95 percent.   
RESPECTFULLY SUBMITTED: 

  

Kk. JAMES KELLOGG, Trial Attorney 

WILLIAM P. QUIGLEY 

STEVEN SCHECKMAN 

STANLEY HALPIN 

631 St. Charles Avenue 

New Orleans, Louisiana 

LANI  GUINIER 
NAPOLEON B. WILLIAMS 

NAACP 
Legal Defense and Educational Fund, Inc. 
10 Columbus Circle 
Suite 2030 
New York, New York 10019 

Attorneys for Plaintiffs 

April 30, 1982 

 



UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA 

[BARBARA MAJOR, ET AL CIVIL ACTION 

|| VERSUS NO. 82-1192 
|! 

DAVID C. TREEN, ET AL SECTION: H (D) (CO) 

{ {i 

THREE JUDGE COURT CASE 
  

CLASS ACTION 
  

PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 
  

NOW INTO COURT come plaintiffs who move for summary judgment in this 

itiot declaring that the current congressional districts of Louisiana are 

I 
liunconstitutional. Plaintiffs make this motion on the basis of the pleadings 
1 

t!{in this matter, the statement of uncontested material facts, and the memorandum 

lin support of plaintiff's motion for summary judgment. The grounds for this 

| 4 

i 

entitled to judgment as a matter of law. 

RESPECTFULLY SUBMITTED: 

  

R. JAMES KELLOGG, Trial Attorney 

WILLIAM P. QUIGLEY : 

STEVEN SCHECKMAN 

STANLEY HALPIN 

631 St. Charles Avenue 

New Orleans, Louisiana 70130 

{ 

| 
i 
1 
tH 

| 
1 

i 

LANI GUINIER 
NAPOLEON B. WILLIAMS 

NAACP 
Legal Defense and Educational Fund, Inc. 

10 Columbus Circle 

Suite 2030 
New York, New York 10019 

  

Attorneys for Plaintiffs 

|| DATE: April 30, 1982 

CERT IRLICATE 

I hereby certify that a copy of the foregoing has been served upon 

|| opposing counsel by mailing same postage prepaid via U.S. postal service this 

| 30thday of April , 1982, 

   



UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA 

"| BARBARA MAJOR, ET AL CIVIL ACTION 

VERSUS NO. 82-1192 

\ DAVID C. TREEN, ET AL SECTION: H (D) (CO). 

THREE COURT CASE JUDGE 
  

CLASS ACTION 
  

MEMORANDUM IN SUPPORT OF 

PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 
  

MAY IT PLEASE THE COURT: 

I. 

THE LAW ON CONGRESSIONAL REAPPORTIONMENT 
  

Congressional reapportionment requirements derive from the United 

States Constitution, Article 1, Section 2, rather than the Fourteenth Amendment, : J 

Ld |'which applies to reapportionment of the state legislatures. 

The Supreme Court has applied a much stricter population apportionment 

||standard in congressional redistricting cases than it had in legislative reappor- 

1 
|| tionment cases, See Kirkpatrick v. Preisler, 394 U.S. 526, 89 $.Ct. 1223, 22 i 

il 

|| L.Ed. 2nd. 519, 1969, 
id 

  

In this case, the Supreme Court indicated that the State must achieve 

| precise mathematical equality. See 394 U.S. 530-531. 

Thus, the Supreme Court has rejected congressional redistricting plans 

|ijwith deviations of 13.1 percent (Wells v. Rockefeller, 394 U.S. 542, 89 S.Ct. 
  

/, {{ 1234, 22 L.Ed. 2nd. 535, 1969); 5.97 percent (Kirkpatrick, supra), and 4.13   
|| percent {see White v. Weiser, 412 U.S, 783, 93 S.Ct. 2348, 37 L.Ed. Ind. 335, 
  

111973). 
H | II. 

THE FACTS OF THESE CONGRESSIONAL DISTRICTS i 

  i 

| 

| | 
{ 

| 
Hi 

I As was pointed out in the plaintiff's statement of uncontested facts, 

| when the present congressional districts were drawn, they had an overall popula- 

|| tion deviation of .31 percent. Now,'the Louisiana Congressional Districts have 

|| an overall population deviation of 21.95 percent, 

! This population deviation is reached by calculating the "norm", or 

'| populations the size of the ideal district, and then subtracting the difference  



i 

iin population between the number of persons in the district and the norm. This 
i 

\larrives at a population variation of raw numbers. This population variance is 
i 
1! 4 
{| then divided by the population norm to arrive at a percentage of deviation. If 

| the district under examination is larger (has more people) than the norm, the 

H 

'ivariance is a plus variance, and the district is "underrepresented". If the 
il Hi 

ijdistrict under examination is smaller (has fewer people) than the norm, the 
i 

{1 

| variance is a minus variance and the district is "overrepresented'. The span 

of variances, or total deviation from population equality, is calculated by add- 
| 

i 
| 
tiing the largest plus variance and the largest minus variance. This is how the 

| 

| 
| 
| 

1 

11 : . . 
{joverall population deviations were arrived at. 
i 

i Therefore, an examination of the present congressional districts in 

Louisiana leads to the following result: Five of the Louisiana congressional 

districts have negative deviations, and three of the districts have positive 

{ldeviations. The most extreme negative deviation is in Congressional District 2,     where that district is found to have 63,695 fewer persons than they should have. 

lIThe greatest positive deviation is in Congressional District 6, which kas 51,64" 

i 
{People more than the norm dictates. 
H 

This means that the people in Congressional Districts 1, 2, 4, 5 and 
Hl 

I San ; : a 
jjireve a greater voice in Congress than the people in Congressional Districts 3, 

| 
| 
iboand 7, i 

{ 

| 111. 

CONCLUSION 

As is noted above, the Supreme Court has said that congressional 

districts should be as mathematically equal as possible. In Louisiana, the 

present Congressional Districts are clearly out of synch with this mandate. 

‘| They should therefore he declared unconstitutional by this Court. 

H 

RESPECTFULLY SUBMITTED: 

  

R. JAMES KELLOGG, Trial Attorney 
WILLIAM P. QUIGLEY 
STEVEN SCHECKMAN 
STANLEY HALPIN 
631 St. Charles Avenue 
New Orleans, Louisiana 70130 

    
LANI  GUINIER 

NAPOLEON B. WILLIAMS 
NAACP ; 
Legal Defense and Educational Fund, Inc. 

10 Columbus Circle 

Suite 2030 
New York, New York 10019 

Attorneys for Plaintiffs 

April 30, 1982  



2/3/82 

2/3/82 

2/11/82 

2/18/82 

3/24/82 

3/30/82 

4/2/82 

4/14/82 

4/16/82 

LOUISIANA REAPPORTIONMENT 

H/B #2 
from Feb. '82 

Comment submitted to Justice Dept. objecting to Reapportionment Plan of Ia. 
House of Rep., with appendices and cover letter 

Ltr to NBW from Bill Quigley with update 

Ltr to Rep. Johnny Jackson fram Bill Quigley re bill for costs in reapp. 
challenges 

Ltr. to N.B.Williams re Bill for computer work on La. Reapportionment 

Draft Complaint, Barbara Major v. David C. Treen, from Jim Kellog 
  

ORDER re dates for plaintiffs & defendants to file various memoranda in 
connection with Motion to Consolidate 

Memorandum in Support of Motion to Consolidate - Jim Kellog 

Memorandum from Jim Kellog on oral argument on Motions to Consolidate and 
Motion to Dismiss with the Couhig case 

MOTION and ORDER For Extension of Time Within Which to Answer (Defendants)