St. Cyr v Hays Jurisdictional Statement

    No. 94-

In The

Suprem e Court of tfje Untteb ^ ta teg
October Term, 1994

Bernadine St . Cyr, et al.,

Appellants,

v.

Ray Hays, et al.,

Appellees.

On A ppeal F rom  The U nited  S ta te s  D is tric t 
C ourt F o r The W estern  D is tric t Of L ou isiana

JURISDICTIONAL STATEMENT

Elaine R. J ones 
Director-Counsel

Theodore M. Shaw 
Clyde E. Murphy 
Charles Stephen Ralston 
Eric Schnapper 

*Judith Reed
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

William P. Quigley 
Loyola Law Clinic 
7214 St. Charles Avenue 
New Orleans, Louisiana 70118

Pamela S. Kajrlan
1525 Massachusetts Avenue
Cambridge, Massachusetts 02138

*(Counsel of Record)
Counsel for Appellants

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. 1-800-347-8208



QUESTIONS PRESENTED

1. Whether Federal Rule of Civil Procedure 24 
entitles African American voters residing in a majority black 
congressional district to intervene for the purpose of 
defending that district when the district is challenged by 
voters who argue that the creation of that majority black 
district was unconstitutional.

2. Where a three-judge court denies a motion to 
intervene and an appeal to this Court is taken from that 
court’s decision issuing an injunction, pursuant to 28 U.S.C. 
§ 1253, does jurisdiction over an appeal from the denial of 
intervention lie with (a) the court of appeals or (b) this 
Court.



11

PARTIES TO THE PROCEEDING

Plaintiffs are Ray Hays, Edward Adams, Susan Shaw 
Singleton, and Gary Stokely.

Defendants are Edwin Edwards, Governor of the 
State of Louisiana; Samuel B. Nunez, President of the 
Louisiana State Senate; John A. Alario, Speaker of the 
Louisiana House of Representatives; W. Fox McKiethen, 
Secretary of State of Louisiana; and Jerry Fowler, the 
Commissioner of Elections for the State of Louisiana.

Defendant intervenor is the United States.

Appellants, Bemadine St. Cyr, Donald Thibodeax, 
Patrick Fontenot, Hazel Freeman, Janice Frazier, and Ralph 
Wilson, are six black voters residing in Congressional 
District 4, who unsuccessfully sought intervention as 
defendants in the district court.



TABLE OF CONTENTS

Questions P resen ted .......................................    i

Jurisdictional Statement ....................................................  1

Opinions B e lo w ................    1

Jurisdiction ..........................................................    2

Constitutional and
Statutory Provisions Involved................................  2

Statement ...........................................................................  3

The Questions Presented Are Substantial ....................... 7

Conclusion......................................................................... 18

Appendix A ......................................................................... la

Appendix B ........................................................................... 2a

Appendix C ......................................................................  22a

Appendix D ......................................................................  37a

Appendix E ......................................................................  38a

Appendix F .......................   43a

Appendix G .................................................................... 108a



IV

TABLE OF AUTHORITIES

Cases: Pages:

Bolling v. Sharpe,
347 U.S. 497 (1954) ....................... .. ..............  14

Cascade Natural Gas Corp. v. El Paso Natural Gas
Co., 386 U.S. 129 (1967) ....... ...................... .. 9

Doe v. Bolton,
410 U.S. 179 (1973) ......................... ............. .. 17

Donaldson v. United States,
400 U.S. 517 (1971) .......................................... .. 9

Fiandaca v. Cunningham,
827 F.2d 825 (1st Cir. 1987).........................   13

Fusari v. Steinberg,
419 U.S. 379 (1975) ....... ........................... .. 18

Gerstein v. Coe,
417 U.S. 279 (1974)   17

Gunn v. University Committee,
399 U.S. 383 (1970) .......................................... 16

Hays v. Louisiana,
839 F. Supp. 1188 (W.D.La. 1993), vacated,
114 S. Ct. 2731 (1 9 9 4 ).................................. passim

Hays v. State of Louisiana, 18 F.3d
1319 (5th Cir. 1994).........................................   5

Hays v. State of Louisiana, 1994
WL 477159 (W.D. La.) ................ ............. .. passim



V
Pages:

International Union, Local 238 v. Scofield,
382 U.S. 205 (1965) ..........................................  17

Johnson v. DeGrandy,
512 U .S .___, 129 L. Ed. 2d 775 (1994)..............  9

Johnson v. Miller, 1994 WL 506780 (S.D. Ga.) -----  9, 10

Major v. Treen,
574 F. Supp. 325 (E.D.La. 1983) ................... 7, 12

Mitchell v. Donovan,
398 U.S. 427 (1970) ........................................  5, 16

NAACP v. New York,
413 U.S. 345 (1973) ........................................  9, 17

Poe v. Gerstein, , 417 U.S. 281 (1974)....... ..................... 17

Supreme Court of Virginia v. Consumers Union,
446 U.S. 719 (1980) .....................................  17, 18

Rockefeller v. Catholic Medical Center 
of Brooklyn & Queens, Inc.,
397 U.S. 820 (1970) ........................................ 5, 16

Roe v. Wade,
410 U.S. 113 (1973) ..........................................  16

Sagebrush Rebellion, Inc. v. Watt,
713 F.2d 525 (9th Cir. 1983) ............................  13

Shaw v. Hunt, 1994 WL 457269 (E.D. N .C .) ................  8

Shaw v. Reno,
509 U .S .____, 125 L. Ed. 2d 511 (1993) . . passim



Socialist Workers Party v. March Fong Eu,
591 F.2d 1252 (9th Cir. 1978), cert, denied,
441 U.S. 946 (1979) .............. ........................... 17

State of South Carolina v. Katzenbach,
383 U.S. 301 (1966) ................................... .. 11

Trbovich v. United Mine Workers,
404 U.S. 528 (1972) ................................... .. 14

University of California Regents v. Bakke,
438 U.S. 265 (1978) ..........................................  11

Vance v. Universal Amusement Co., Inc.,
587 F.2d 159 (5th Cir. 1978), aff’d, 445 U.S.
308 (1980)............................................................. 16

Vera v. Richards, 1994 WL 484492 (S.D. Tex.) . . . . . .  8

Whitcomb v. Chavis,
403 U.S. 124 (1971)   16

White v. Regester,
412 U.S. 755 (1973)   10

Wygant v. Jackson Board of Education,
476 U.S. 267 (1986)   11

Statutes and Rules:

28 U.S.C. § 1253 ......................................................... passim

28 U.S.C. § 1254(1) ......................................................... 17

vi
Pages:



28 U.S.C. § 2284 ...............................................................  3

42 U.S.C. § 1973 ........................................................... 3, 8

42 U.S.C. 1973(b) ........................................................... 11

42 U.S.C. 1973b(a)........................................................... 17

Fed. R. Civ. P. 24 ....................................................... passim

Fed. R. Civ. P. 24(a) ...................................................  4, 11

Fed. R. Civ. P. 24(b) ........................................................  4

Miscellaneous:

Karlan, All Over the Map: The Supreme Court’s Voting
Rights Trilogy, 1993 Sup. Ct. Rev. 245 ..............  14

United States, 99th Cong., 1st Sess. p. 440 (1985) 
(reprinting section 5 submission analysis 
prepared by Robert N. Kwan, attorney, Voting 
Section, Civil Rights Div., U.S. Dept, of 
Ju s tic e ) .................................................................. 12

Vll

Pages:



No. 94-

In The

Supreme Court of tfje Untteb States;

October Term, 1994

Bernadine St . Cyr, et al., Appellants, 

v.

Ray Hays, et al., Appellees.

ON APPEAL FROM THE UNITED STATES 
DISTRICT COURT FOR THE WESTERN DISTRICT 

OF LOUISIANA

JURISDICTIONAL STATEMENT

OPINIONS BELOW

The opinion of the three-judge district court 
invalidating Louisiana’s 1994 districting plan (App., infra, 2a- 
21a) is not yet reported. The order of that three-judge 
district court denying appellants’ motion to intervene to 
defend that districting plan is reproduced at App., infra, la. 
An earlier opinion of the United States Court of Appeals for 
the Fifth Circuit regarding appellants’ 1993 application to 
intervene in a prior phase of this litigation (App., infra, 38a- 
42a) is reported at 18 F.3d 1319 (5th Cir. 1994). The 1993 
order of the three-judge district court denying that earlier 
application is reproduced at App., infra, 7>1&. The first 
opinion of the three-judge district court on the merits of the 
1992 districting plan (App., infra, 43a-107a) is reported at 
839 F.Supp. 1188 (W.D. La. 1993), vacated, 114 S.Ct. 2731 
(1994).



2

JURISDICTION

The judgment of the three-judge district court on the 
merits was entered on July 26, 1994. App., infra, 22a to 36a. 
A notice of appeal was filed on August 23, 1994. App., 
infra, 108a to 109a. The jurisdiction of this Court is invoked 
under 28 U.S.C. § 1253.

CONSTITUTIONAL AND 
STATUTORY PROVISIONS INVOLVED

Rule 24, Fed. R. Civ. P., states in pertinent part:

(a) Intervention of Right. Upon timely 
application anyone shall be permitted to 
intervene in an action . .  . when the applicant 
claims an interest relating to the property or 
transaction which is the subject of the action 
and the applicant is so situated that the 
disposition of the action may as a practical 
matter impair or impede the applicant’s 
ability to protect that interest, unless the 
applicant’s interest is adequately represented 
by existing parties.

(b) Permissive Intervention. Upon timely 
application anyone may be permitted to 
intervene in an action: (1) when a statute of 
the United States confers a conditional right 
to intervene; or (2) when an applicant’s claim 
or defense and the main action have a 
question of law or fact in common . . . .  In 
exercising its discretion the court shall 
consider whether the intervention will unduly 
delay or prejudice the adjudication of the 
rights of the original parties.

Section 1253 of 28 U.S.C. provides as follows:



3

Except as otherwise provided by law, any 
party may appeal to the Supreme Court from 
an order granting or denying, after notice and 
hearing, an interlocutory or permanent 
injunction in any civil action, suit or 
proceeding required by any Act of Congress 
to be heard and determined by a district court 
of three judges.

STATEMENT

This case involves the validity of Louisiana’s post- 
1990 congressional redistricting. The plaintiffs, appellees in 
this Court, are registered voters who object to the creation 
of certain majority black districts. Appellants in this case, 
unsuccessful defendant-intervenors in the court below, are 
African American voters who live in the principal majority 
black district under challenge, which was invalidated by the 
three-judge District Court for the Western District of 
Louisiana. Appellants appeal from the order by the three- 
judge district court denying their motion to intervene. They 
also appeal from final judgment on the merits entered July 
26,1994. The State of Louisiana was a defendant below; the 
United States was a defendant-intervenor below. Each of 
these parties has taken an appeal to this Court from the 
judgment on the merits. Nos. 94-558 and 94-627.

The instant action arose out of a challenge under the 
Constitution and the Voting Rights Act, 42 U.S.C. § 1973, 
as amended, to the 1992 Louisiana congressional 
redistricting plan (Act 42). The plaintiffs, four registered 
voters residing in Lincoln Parish, brought this action against 
various Louisiana state officials and agencies, challenging 
Act 42 under the Constitution and the Voting Rights Act. 
App. 42a.

A three-judge court, convened pursuant to 28 U.S.C.



4

§ 2284, held a trial in August 1992. On August 27, 1992, 
the court issued a memorandum ruling and order denying 
plaintiffs’ request for an injunction and allowed the 1992 
congressional elections to go forward. The court also denied 
the state and federal constitutional claims, taking the Voting 
Rights Act issues under advisement. App. 45-46a.

On June 28, 1993, this Court decided Shaw v. Reno,
509 U .S .___ , 125 L.Ed. 2d 511 (1993). One day later, the
district court indicated its intent to reconsider the dismissal 
of the federal constitutional claims. App. 46a. Within a 
month, appellants moved to intervene as defendants in the 
Louisiana litigation. They sought to represent themselves 
and other African American voters in Congressional District 
4 and in the State of Louisiana. The motion sought 
intervention both as of right pursuant to Rule 24(a), and 
permissively, pursuant to Rule 24(b), Fed. R. Civ. P. 
Plaintiffs opposed intervention, while the State took no 
position on the intervention. In an order signed by Judge 
Walter of the three-judge panel on July 29, 1993, the district 
court denied the motion to intervene. Appellants 
immediately, and prior to the issuance of final judgment on 
the merits, appealed from that order to United States Court 
of Appeals for the Fifth Circuit. Appellants’ motion to 
expedite the appeal was granted.

During the pendency of that appeal, the three-judge 
court, after an evidentiary hearing in August 1993, 
invalidated Act 42 and enjoined the holding of further 
elections pursuant to that plan. Hays v. Louisiana, 839 F. 
Supp. 1188 (W.D.La. 1993),'vacated, 114 S.Ct. 2731 (1994) 
("Hays F) App. 87-88a. The State appealed that December 
1993 decision to this Court, pursuant to 28 U.S.C. § 1253.

It was not until oral argument in the Court of 
Appeals on the intervention, in early February of 1994, that 
the question of whether jurisdiction to decide the 
intervention appeal belonged in the Court of Appeals or the



5

Supreme Court arose. The Fifth Circuit requested briefing 
on the issue. Appellants took the position that by virtue of 
the limitations of section 1253, and because the appeal had 
been perfected long before the district court issued its 
decision on the merits, the Court of Appeals had jurisdiction 
to decide the collateral issue of intervention. The plaintiffs 
asserted that because of the State’s appeal to this Court, 
only this Court had jurisdiction.

The Court of Appeals dismissed the intervention 
appeal, holding that it lacked jurisdiction to decide such an 
appeal once final judgment had been issued and a proper 
appeal taken to the Supreme Court. Hays v. State o f 
Louisiana, 18 F.3d 1319 (5th Cir. 1994); App. 38a. The 
Court of Appeals recognized that the intervention appeal, 
"when noticed, very likely was properly before" it. The 
Court of Appeals concluded, however, that with the "lodging 
of [the merits appeal in the Supreme Court] [its] appellate 
jurisdiction was impacted." App. 42a. The Court of Appeals 
read this Court’s decisions in Mitchell v. Donovan, 398 U.S. 
427 (1970) and Rockefeller v. Catholic Medical Center o f 
Brooklyn & Queens, Inc., 397 U.S. 820 (1970) as "indicating 
that when presented as a part of the appeal of the judgment 
on the merits by the three-judge court [the Supreme Court] 
will consider other rulings and orders of the trial court." 
App. 41a, n. 9.

While the first appeal on the merits to this Court was 
pending, and only two days after the dismissal of the 
intervention appeal by the Court of Appeals, the Louisiana 
Legislature passed a new redistricting plan (Act 1) on April



6

22, 1994. The Governor signed the bill into law on April 29, 
and Act 1 was precleared by the Department of Justice on 
June 3, 1994.1

On June 20, 1994, plaintiffs moved to amend their 
complaint and for preliminary and permanent injunctive 
relief against the newly enacted Act 1. App. 3a. The 
district court declined to act on the motions, stating that it 
was without jurisdiction. App. 3a. On June 27, 1994, this 
Court vacated the district court’s judgment and remanded 
the case for further proceedings, thereby investing the 
district court with jurisdiction. Within ten days of this 
Court’s order and only two days after the district court 
accepted the amended complaint, St. Cyr and the other 
appellants again moved to intervene. At the time of the 
motion to intervene, no answer had been filed to the 
amended pleading; indeed, the time for doing so had not yet 
passed. No discovery had been taken. The only action 
taken had been the district court’s setting of trial for July 21, 
1994.

The district court took no action on the motion to 
intervene until the beginning of the two-day hearing on the 
merits on July 21, 1994. The district court denied the 
motion in open court. App. la. At the conclusion of the 
hearing, the court found the new plan unconstitutional. In 
its opinion, filed on July 29, 1994, the court adopted by

1 Appellants correctly foresaw that this Court would 
vacate Hays I  in light of the passage of Act 1. Accordingly, 
appellants filed a petition in the Court of Appeals seeking 
rehearing of that court’s dismissal of the appeal of the denial 
of intervention. Appellants argued that once this Court 
vacated the judgment in Hays I, the Court of Appeals would 
have jurisdiction over the appeal of the denial of 
intervention. The petition for rehearing was denied on May 
17, 1994. App. 38a.



7

reference its December 28, 1993, opinion. App. 3a. On July 
26, 1994, the court entered judgment invalidating Act 1, 
enjoining further use of the new plan, and directing that 
1994 elections be held under a plan drawn by the court. 
Hays v. State o f Louisiana, 1994 WL 477159 (W.D. La.) 
("Hays IF) (App. 24-24a).

The district court’s seven-district plan resulted in six 
predominantly white districts and one majority black 
district.2 App. 33a. District 4, which under Act 42 had been 
63 percent black registered voter population and 55 percent 
black registered voter population under Act 1, was now 28 
percent black registered voter population. App. 5a, 31a, 89a. 
This Court granted a stay of the district court’s order.

Both the State defendant and the federal defendant- 
intervenor in Hays I I  have filed jurisdictional statements with 
this Court. Accordingly, based on its earlier holding in this 
case, the Court of Appeals will not hear the appeal of the 
denial of intervention. Nonetheless, because of the 
uncertainty in the case law as to where an appeal of the 
denial of intervention by a three-judge court should be 
heard, appellants have filed two appeals: to this Court and 
to the Fifth Circuit.

THE QUESTIONS PRESENTED ARE SUBSTANTIAL

This appeal raises serious questions regarding the 
relationship between Federal Rule of Civil Procedure 24 and 
the Equal Protection Clause of the Constitution and the 
cause of action recognized by this Court in Shaw v. Reno. 
The appellants in this case are black registered voters who

2 The single majority black district in the Court’s plan, 
District 1, was originally created as a result of litigation 
following the 1980 census. Major v. Treen, 51A F. Supp. 325 
(E.D.La. 1983) (three-judge court).



8

live in Louisiana Congressional District 4. As a result of 
redistricting, appellants now enjoy, for the first time, the 
equal opportunity to participate in the political process and 
elect to Congress candidates of their choice, a right 
guaranteed by section 2 of the Voting Rights Act of 1965, 42 
U.S.C. § 1973. They live in a district that is 55 percent black 
registered voters, which offers them — and has resulted in -- 
a realistic opportunity to elect a candidate of their choice to 
Congress. The plaintiffs in Hays II  do not live in 
Congressional District 4 but nonetheless sought an 
injunction against the use of that district. The plaintiffs’ 
challenge led to the creation of a district that is 28 percent 
black registered voters -- a district that offers appellants no 
reasonable opportunity to elect a candidate of their choice 
to Congress. The entitlement of black voters to participate 
in a judicial proceeding that may result in a denial of their 
rights under section 2 is an important question under both 
the Federal Rules of Civil Procedure and the Constitution.

In addition, this appeal raises a serious issue 
regarding judicial administration of three-judge court cases 
that only this Court can answer: under the circumstances 
and posture of this case, does this Court or the Court of 
Appeals have jurisdiction over appeals from a denial of 
intervention by a three-judge court, once an appeal has been 
taken to this Court on the merits of the grant of an 
injunction?

1. In light of this Court’s recognition of a new, 
"analytically distinct" cause of action in Shaw, 125 L.Ed.2d at 
532, conflict has emerged among the three-judge courts as 
to the proper standard for intervention by black voters under 
Federal Rule of Civil Procedure 24. In virtually every other 
case in which black voters have sought intervention, the 
three-judge court has permitted intervention to individuals 
who live in the challenged district and who sought to 
represent directly the interests of black voters. Shaw v. 
Hunt, 1994 WL 457269 (E.D. N.C.); Vera v. Richards, 1994



9

WL 484492 (S.D. Tex.); Johnson v. Miller, 1994 WL 506780 
(S.D. Ga.). Thus a conflict exists, which only this Court can 
resolve, as to the proper standard for intervention by black 
voters in lawsuits raising Shaw-type claims.

Rule 24 of the Federal Rules of Civil Procedure 
provides that any person who makes a timely application 
shall be permitted to intervene in an action upon a showing 
of "an interest relating to" the subject matter, so long as the 
"disposition of the action may as a practical matter impair or 
impede the applicant’s ability to protect that interest, unless 
the applicant’s interest is adequately represented by existing 
parties."

Appellants’ applications were clearly timely. 
Appellants attempted to intervene in Hays I  within a month 
after this Court’s decision in Shaw, before the constitutional 
claims, which had been dismissed a year earlier, had been 
reinstated. The timeliness of their second attempt to 
intervene, in Hays II, was not questioned by any party. 
Appellants moved to intervene to defend newly enacted Act 
1 within little more than a month from the time the Act 
became effective and only two days after the district court 
permitted the filing of the amended complaint to challenge 
the new plan. Cf. NAACP v. New York, 413 U.S. 345, 367 
(1973) (intervention untimely when appellants waited three 
months after learning of pendency of action).

Appellants met the other requirements for 
intervention as of right, and, a fortiori, permissively. 
Appellants established a "significantly protectable" interest 
in the action. See Donaldson v. United States, 400 U.S. 517, 
531 (1971); Cascade Natural Gas Corp. v. El Paso Natural 
Gas Co., 386 U.S. 129, 154 (1967) (Stewart, J., dissenting). 
Appellants have a right to equal electoral opportunity in
congressional elections. Johnson v. DeGrandy, 512 U .S.___,
129 L.Ed.2d 775 (1994). They have a cognizable interest



10

under the Fourteenth and Fifteenth amendments as well as 
the Voting Rights Act. See White v. Regester, 412 U.S. 755 
(1973). Appellants in this case clearly have an interest in 
the subject matter of this litigation, given that, had they filed 
a separate challenge, any complaint would have stated a 
cause of action under the Voting Rights Act and the 
Constitution, had the State not drawn a district like District 
4.3 Unquestionably, black voters have an interest in 
whether a congressional districting plan is so configured as 
to offer them an opportunity to elect a candidate of their 
choice to Congress, or whether a district should be redrawn 
to deny them that very opportunity.4

3 The strength of that interest was recognized by the 
three-judge district court in Johnson v. Miller:

For many blacks Jim Crow is living memory, 
and the presence of black luminaries and 
ordinary citizens at our hearings is a 
testament to their concern. This Court does 
not underestimate the emotional investment 
in our decision of blacks still resisting the 
vestiges of racial discrimination . . . .

Slip. Op. at 28.

4 Under the plan drawn by the three-judge court, 
District 4, which under Act 1 had been 55 percent black 
registered voter population, was now 28 percent black 
registered voter population. No black candidate in this 
century has been elected to Congress from a majority white 
district in the State of Louisiana. Under the plan drawn by 
the three-judge court, the black-sponsored candidate, 
Representative Cleo Fields, would surely lose in a race 
against incumbent Richard Baker, the bulk of whose voters 
would reside in the court-ordered District 4. Moreover, the 
court-drawn plan led to the announcement by David Duke, 
former high-ranking official of the Ku Klux Klan, that he 
was considering running in the resulting open seat in the



11

Appellants’ cognizable interest in defending the 
challenged congressional district is separate and apart from 
the concerns of either the State or the United States. This 
is clear from the explicit language of the Voting Rights Act 
itself, which states that one of the purposes of the Act is 
"[t]o assure that the right of citizens of the United States to 
vote is not denied or abridged on account of race or color." 
42 U.S.C. 1973(b). The Act was intended to protect the 
franchise of African American voters and other minority 
groups. See State o f South Carolina v. Katzenbach, 383 U.S. 
301 (1966).

The last criterion of Rule 24(a) concerns whether the 
applicants’ interests are adequately represented by existing 
parties. A recurring and important question is whether the 
interests of the non-party beneficiaries of affirmative steps 
to redress discrimination can ever be represented adequately 
by others in cases where plaintiffs challenge those actions on 
the part of a state or other governmental actor. This Court 
has repeatedly recognized the reluctance of defendants in 
such cases to vigorously defend challenges by proclaiming 
one’s status as a wrongdoer, making those defendants 
unlikely to represent the interests of African Americans 
adequately. See, e.g., Wygant v. Jackson Board o f Education, 
476 U.S. 267, 290-91 (1986) (O’Connor, J., concurring) ("a 
requirement that public employers make findings that they 
have engaged in illegal discrimination before they engage in 
affirmative action programs would severely undermine public 
employers’ incentive to meet voluntarily their civil rights 
obligations"); University o f California Regents v. Bakke, 438 
U.S. 265, 364 (1978).

The likelihood that the State would not adequately 
represent appellants’ interests in this case was far from 
speculative. First, as recently as 1981, the State starkly

northeastern portion of the State.



12

demonstrated its unwillingness to protect appellants’ interest 
in fair participation in the congressional election process 
when it created a congressional plan found by a federal 
district court to be in violation of the Voting Rights Act.

During the 1980 redistricting, white legislators and 
other state officials drew the congressional plan in a process 
that deliberately excluded African American lawmakers. See 
Major v. Treen, 574 F. Supp. 325, 334-35 (E.D. La. 1983). 
No black legislators were appointed to congressional 
reapportionment subcommittees. Id. at 330. After then 
Governor Treen’s announcement of his intention to veto any 
plan that created a majority black district, the Louisiana 
Senate President called a "private" meeting — one to which 
black legislators were not invited. Id. at 334. The three- 
judge district found the Governor’s opposition to be 
"predicated in significant part on [a proposed plan’s] 
delineation of a majority black district centered in Orleans 
Parish." Id. Indeed, that sentiment was echoed loudly by 
one of the six members of the Louisiana joint conference 
committee, which was responsible for drawing the post-1980 
congressional districts. This State senator was heard to say 
that he opposed creating a majority black congressional 
district in the New Orleans area, because, "we already have 
a nigger mayor, and we don’t need another nigger bigshot."5 
In the face of then Governor Treen’s threatened veto, white 
legislators determined that black "interest in obtaining a 
predominantly black district would have to be sacrificed . . 
. ." 574 F. Supp. at 334.

Second, apart from the State’s well-known and

5 Hearings on the Nomination of William Bradford 
Reynolds’ to be Associate Attorney General of the United 
States, 99th Cong., 1st Sess. p. 440 (1985) (reprinting section
5 submission analysis prepared by Robert N. Kwan, attorney, 
Voting Section, Civil Rights Div., U.S. Dept, of Justice).



13

considerable history of discrimination and the 1980’s 
redistricting, more recent events shed further light on the 
depth of Louisiana’s commitment to its African American 
voters. In 1991, the Department of Justice found that the 
State had protected white incumbents at the expense of 
black voters, in redistricting the state senate. As recently as 
March 1992, the Justice Department refused to preclear the 
submitted redistricting plan for the Board of Elementary and 
Secondary Education in the State of Louisiana, finding that 
the State had not met its burden of demonstrating that the 
plan had neither discriminatory purpose nor effect. DX 16- 
17.

Third, during the pendency of Hays I, appellants 
sought to have the State introduce affidavits from witnesses 
appellants would have called to testify had they been 
permitted to intervene. The attorney representing 
Louisiana advised counsel for appellants that he could not 
introduce certain declarations that would have addressed, 
inter alia, the "responsiveness" of legislators elected from the 
district created by Act 42 when it was majority white. This 
refusal was based on his view that the testimony was 
objectionable to the State defendants because it contained 
statements critical of certain elected state officials and 
congressional representatives.6 The district court’s denial of

6 Motion to Intervene, Declaration of Judith Reed. In 
determining the ability of the State to represent adequately 
the interests of African American voters, the district court 
should have considered whether the State would 
"undoubtedly make all of the intervenor’s arguments, 
whether [the State] is capable and willing to make [certain] 
arguments, and whether the intervenor offers a necessary 
element to the proceedings that would be neglected." 
Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 528 (9th Cir. 
1983); Fiandaca v. Cunningham, 827 F.2d 825 (1st Cir. 1987) 
(likelihood that applicants would introduce additional



14

intervention is thus not only contrary to Rule 24, it is 
inconsistent with decisions of this Court.

Under the circumstances in this case, and given 
Louisiana’s history of discrimination, appellants were entitled 
to intervene. Trbovich v. United Mine Workers, 404 U.S. 528, 
538 n.10 (1972) ("the requirement of the Rule is satisfied if 
the applicant shows that representation of his interests may 
be inadequate") (emphasis added).

Moreover, to deny black voters intervention under 
these circumstances would raise serious questions of equal 
protection under the Fifth Amendment. Bolling v. Sharpe, 
347 U.S. 497 (1954). Plaintiffs in the series of cases that 
have been brought in the wake of Shaw have advanced an 
extraordinarily expansive claim for standing to challenge a 
states’ determination of its districting.7 The interests of 
black voters which will be impaired by the elimination of the 
Fourth District are every bit as important and clearly more 
concrete than the speculative, and perhaps nonjusticiable, 
harm suffered by white voters who claim the right to a 
"colorblind" electoral process. . . ." App. 47a. Yet black 
voters in this case have not been allowed to be heard.

The right of black voters who live in a predominantly 
black congressional district should not be determined in 
litigation conducted between a proven discriminator and 
plaintiffs who do not live in the district. If white voters or 
voters who do not live in the district are entitled to litigate 
the constitutionality of a congressional district, then black

evidence favors intervention).

7 See Karlan, All Over the Map: The Supreme Court’s 
Voting Rights Trilogy, 1993 Sup. Ct. Rev. 245, 278-80 
(pointing out that this Court has not yet addressed the 
question of standing in 5/iaw-type cases).



15

voters who live in the district must be accorded an equal 
right to participate in such proceedings. The district court’s 
decision in this case, by granting rights to the plaintiffs that 
it denies to black voters, raises serious questions under the 
equal protection guarantee of the Fifth Amendment.

2. This Court has not yet addressed the important 
question of whether a denial of intervention by a three-judge 
court is appealable directly to this Court or should be 
appealed to the Court of Appeals, once an appeal of the 
merits under section 1253 is properly before the Court.8 
Appellants maintained in the Court of Appeals without 
success that jurisdiction to decide the intervention issue lay 
with that court. The Court of Appeals rejected that view 
and insisted that review could be had only in this Court.

Appellants seek review in this Court of this question 
because, as matters now stand, this is the only Court from 
which they can obtain review. The purpose of this appeal is 
not to urge that this Court, as opposed to the Court of 
Appeals, decide the merits of the intervention question, but, 
rather, to obtain a definitive resolution of the issue of where 
jurisdiction to review the denial of intervention by a three- 
judge court lies. The determination of this issue rests on a 
series of not entirely consistent lines of precedent, and this 
Court needs to clarify the law.

The result of appellants’ first attempt to intervene 
and obtain review of the denial of that intervention 
illustrates the problem. At the time appellants took an 
appeal of the July 1993 denial of intervention, trial of the 
constitutional and Voting Rights Act claims relating to Act

8 Section 1253 provides that "any party may appeal to 
the Supreme Court from an order granting or denying" an 
injunction in an action required to be heard by a three-judge 
court.



16

42 had yet to be held. At the time the intervention order 
was entered in July 1993, an appeal could go only to the 
Court of Appeals not to this Court. The Court of Appeals 
raised the question of whether it or this Court had 
jurisdiction of the intervention appeal at a time when it was 
no longer possible to appeal the denial of the intervention 
to this Court. The Court of Appeals decision on the first 
denial of intervention has had the effect of precluding an 
appeal. The decision of the Court of Appeals is inconsistent 
with a number of decisions of this Court.

Section 1253 by its terms "authoriz[es] a direct appeal 
to [the Supreme Court] only from an order of a three-judge 
district court ‘granting or denying . . .  an interlocutory or 
permanent injunction.’" Gunn v. University Committee, 399 
U.S. 383, 386-87 (1970). This Court has held that where a 
district court withholds injunctive relief, the plaintiff may 
appeal the grant or denial of an injunction, but that an 
appeal of the declaratory judgment must be appealed to the 
court of appeals. See, Mitchell v. Donovan, 398 U.S. 427 
(1970); Rockefeller v. Catholic Medical Center, 397 U.S. 820 
(1970); Gunn v. University Committee, supra-, Whitcomb v. 
Chavis, 403 U.S. 124, 138 n.19 (1971); Vance v. Universal 
Amusement Co., Inc., 587 F.2d 159,163 (5th Cir. 1978), aff’d, 
445 U.S. 308 (1980).

Yet another decision of this Court suggests another 
alternative. This Court has found that when the issue 
sought to be reviewed is inextricably intertwined with the 
injunction issues it is appropriate to exercise its jurisdiction 
under section 1253 to review both the merits of the issuance 
of the injunction and the declaratory judgment. Roe v. 
Wade, 410 U.S. 113, 123 (1973) (both aspects would be 
reviewed when the "arguments as to both aspects are



17

necessarily identical").9 However, even under those 
circumstances, this Court indicated a preference for the 
party seeking review of the non-injunction aspects to file 
instead of an appeal, a petition for certiorari before 
judgment. Id. Yet, under what appeared to be similar 
circumstances, the Court dismissed an appeal by defendants 
of a declaratory judgment to this Court after an appeal had 
been taken from the denial of an injunction for lack of 
jurisdiction. See Doe v. Bolton, 410 U.S. 179 (1973); see also 
Gerstein v. Coe, 417 U.S. 279 (1974), accompanied by Poe v. 
Gerstein, 417 U.S. 281 (1974); Socialist Workers Party v. 
March Fong Eu, 591 F.2d 1252 (9th Cir. 1978), cert, denied, 
441 U.S. 946 (1979).

On the other hand, in analogous circumstances, this 
Court has exercised appellate jurisdiction over a variety of 
appeals. For example, in appeals arising under both 28 
U.S.C. § 1254(1) and 42 U.S.C. 1973b(a), this Court directly 
reviewed the denial of intervention. International Union, 
Local 238 v. Scofield, 382 U.S. 205, 208-09 (1965) (phrase, 
"any party," in 28 U.S.C. 1254(1) may include an 
unsuccessful intervenor); NAACP v. New York, 413 U.S. 345 
(1973) (would-be intervenors allowed to appeal denial of 
intervention under section 4(a), 42 U.S.C. 1973b(a), which 
provides that "[a]n action pursuant to this subsection shall be 
heard and determined by a court of three judges in 
accordance with the provisions of section 2284 of Title 28 
and any appeal shall lie to the Supreme Court.") Similarly,

9 It may well be that in this case a single appeal to this 
Court is appropriate, because the question of the interest of 
black voters in the survival of Congressional District 4 is a 
central element in both reviewing the propriety of the grant 
of an injunction in Hays II  — since the defenders of that 
district all argue that it was required to comply with section 
2 of the Voting Rights Act — and in deciding the question 
of the entitlement of appellants to intervene under Rule 24.



18

in Supreme Court o f Virginia v. Consumers Union, 446 U.S. 
719 (1980), this Court held that review of collateral matters 
was appropriate where an appeal on the merits under 
section 1253 had been taken. Id. at 737 n.16 (jurisdiction to 
decide whether attorneys fees had been properly awarded). 
Earlier in Fusari v. Steinberg, 419 U.S. 379 (1975), this Court 
noted that an appeal of the merits issues necessarily "brings 
the ‘whole case’ before the Court." Id. at 387 (citation 
omitted). The applicability of a general rule to appeals 
under section 1253 thus raises important and unsettled 
issues.

The sequence of events in this case and the question 
of whether jurisdiction of the intervention appeal belongs in 
this Court or the Court of Appeals has led to an anomalous 
juncture. At this point the case is about to be resolved on 
the merits without an opportunity for appellants to be heard. 
A holding that the denials of intervention were erroneous 
would provide an independent basis for a reversal of the 
district court’s decision on the merits. It is surely 
inappropriate for this Court to resolve the question of the 
merits without there having been a decision on who the 
parties should be. If this Court does not clarify the 
jurisdiction over the merits of the intervention question, 
review of that issue may be effectively foreclosed.

CONCLUSION

For the above reasons, the Court should note 
probable jurisdiction. We also urge the Court to grant



19

certiorari before judgment in order to avoid any question as 
to jurisdiction of the denial of intervention in this case.

Respectfully submitted,

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw 
Associate Director-Counsel

Clyde E. Murphy 
Eric Schnapper 
Judith Reed 
(Counsel o f Record)
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

William P. Quigley 
Loyola Law Clinic 
7214 St. Charles Avenue 
New Orleans, LA 70118 
(504) 861-5550

October 24, 1994
Attorneys for Appellants



APPENDIX



APPENDIX A

IN THE UNITED STATES DISTRICT COURT FOR 
THE WESTERN DISTRICT OF LOUISIANA 

SHREVEPORT DIVISION

RAY HAYS, et al. CIVIL ACTION NO. 92-1522S

Plaintiffs 

VERSUS

STATE OF LOUISIANA, et al.

Defendants,

UNITED STATES OF AMERICA,
Defendant-Intervenor.

Opening statements held in the above matter on the 
21st day of July, 1994. Morning Session.

* * *

MS. REED: Your Honor, . . .  I am Judith Reed 
from the NAACP Legal Defense Fund and we also sought 
intervention on behalf of the St. Cyr intervenor [sic].

If it’s convenient for the Court at this time I would 
like to note for the record that our motion has not yet been 
ruled upon. So we would request a ruling on that.

JUDGE WIENER: Thank you. The motion is
denied.

[Tr. 4.]



2a

APPENDIX B

[Filed July 29, 1994] 

Ray HAYS, et al., Plaintiffs,

v.

STATE of Louisiana, et al., Defendants. 

No. 92-1522.

United States District Court,
W.D. Louisiana.

Before WIENER, Chief Judge, and SHAW, Chief District 
Judge and WALTER, District Judge. Walter, Wiener and 
Shaw, JJ. concurring, with Shaw concurring specially with 
whom Wiener, J. concurs:

By order dated June 27, 1994, this case was 
remanded from the United States Supreme Court for further 
proceedings. For the following reasons, Act 1 of the Second 
Extraordinary Session of the 1994 Louisiana Legislature is 
null and void. The State of Louisiana is hereby enjoined 
from holding any future Congressional elections based upon 
the redistricting scheme embodied by Act 1.

I
STATEMENT OF THE CASE

Ray Hays, Edward Adams, Susan Singleton, and Gary 
Stokely ("Plaintiffs") brought this suit in state court in 
August 1992 challenging Act 42 of 1992. The case was 
removed to this Court by the State of Louisiana. After one 
trial and an evidentiary hearing, we struck down Act 42 as



3a

an impermissible racial gerrymander violative of Plaintiffs’ 
equal protection rights. TTie State of Louisiana et al. 
(’Defendants’) pursued their appeal directly to the Supreme 
Court. Meanwhile, during an extraordinary session, the 
Louisiana Legislature enacted Act 1, repealing Act 42 and 
creating a new Congressional redistricting scheme. Plaintiffs 
filed supplemental pleadings seeking to amend their 
complaint. The amended pleadings challenged Act 1 and 
sought injunctive relief. As the case was on appeal to the 
Supreme Court, the motions were returned unsigned for lack 
of jurisdiction. On June 27, 1994, the Supreme Court 
vacated our judgment of December 29,1993; remanded the 
case to this Court "for further consideration in light of Act 
1 of the Second Extraordinary Session of the 1994 Louisiana 
Legislature and the parties’ filings in this Court concerning 
Act 1." Consistent with that order, this Court permitted the 
previously filed amended complaint and a two-day trial was 
held to determine the constitutionality of Act 1.

II
FINDINGS OF FACT AND CONCLUSIONS OF LAW

In the interest of brevity, we reiterate and adopt by 
reference our December 28, 1993 opinion. Our conclusions 
regarding Plaintiffs’ standing to bring an equal protection 
challenge are adopted as well. With that in mind, we make 
the following findings:

A
"The Act (1) speaks for itself’

The districting map of Louisiana, created under Act 
1, reflects a racial gerrymander. Specifically the bizarre and 
irregular shape of District Four raises the inference that the 
Louisiana Legislature classified its citizens along racial lines 
and segregated them into voting districts accordingly. The 
district cuts across historical and cultural divides, splits 
twelve of its fifteen parishes and divides four of the seven



4a

major cities of the State. The statistical evidence showing 
the racial composition of the districts further supports the 
finding that District Four is "so extremely irregular on its 
face that it rationally can be viewed only as an effort to 
segregate the races for purposes of voting." Shaw v. Reno, 
113 S.Ct. 2816 (1993).1 Plaintiffs, by submitting the new 
map with their supplemental pleadings, stated a claim upon 
which relief can be granted under the Equal Protection 
Clause. We ordered the State of Louisiana and 
Defendant-Intervenor United States to begin the trial by 
rebutting this inference.

Defendants offered the testimony of two State 
Senators, the State Senate’s assistant secretary, a 
geographer, and a sociologist in an effort to explain the 
shape of the district on other than impermissible racial 
grounds. Those persons involved directly with the formation 
of Act 1 acknowledged that the creation of a second 
majority-minority district was the specific intent of the 
Legislature. Two race-neutral explanations were submitted 
by the defense. First, the geographer opined that as District 
Four followed the Red River valley, it endowed all its 
residents with a commonality of interest. Second, the 
various witnesses asserted that District Four was inspired by 
"the old Eighth" district thereby satisfying the concept of 
"traditional" districting principles.

The starting point, following the 1990 census, was to 
redistrict for seven congressional districts, instead of eight, 
Louisiana having lost one member of Congress. Next, the 
State sought to comply with the Constitutional requirement 
of one man—one vote. In this case, each district should 
contain, as closely as practicable, 603,853 citizens. The

‘The State now concedes that Act 42 was bizarre. In our opinion 
of December 28, 1993, we called for major surgery. Act 1 is at best 
a cosmetic makeover.



Sa

State’s evidence clearly shows what happened next: 
Misinterpreting our opinion of December 1993 as approving 
a racially gerrymandered district if it contained no more than 
55 % minority registered voters; and remaining convinced 
that the Department of Justice would not pre-clear any plan 
that did not contain two majority/minority districts, the 
Legislature embarked on an endeavor to comply with those 
demands and still secure adoption. These were the only 
inflexible features given to the cartographer/demographer in 
charge of generating the seven districts.

After reviewing the evidence, we find that Act 1 can 
only be explained credibly as the product of race-conscious 
decisionmaking. The Senators themselves admitted that race 
played a large if not dominant role in the map as it is now 
drawn. The Red River valley theory is clearly a post hoc 
rationalization similar to the Mississippi River theory offered 
to support Act 42 and equally unbelievable. The State did 
not imitate the "old Eighth" for tradition’s sake.2 The "old 
Eighth," certainly bizarre, before Shaw and never challenged, 
was crafted for the purpose of ensuring the reelection of 
Congressman Gillis Long. New District Four was drafted 
with the specific intent of ensuring a second 
majority-minority Congressional district. The State’s 
purported reliance on District Four’s similarity to the "old 
Eighth" is mere pretext. Although the witnesses highlighted 
other factors that carved the contours of the awkward 
district, the fundamental factor driving Act I  was race.

B
ACT 1 IS SUBJECT TO STRICT SCRUTINY

Race-conscious redistricting, while not always

2In fact, District Four incorporates the "old Eighth" only in part. 
It shoves the top further north into Shreveport, further south into 
Baton Rouge and shortens it to the east.



6a

unconstitutional, is always subject to strict scrutiny. This 
conclusion has troubled legislators, scholars, litigators, and 
judges alike. T. Alexander Aleinikoff, Samuel Issacharoff, 
Race and Redistricting: Drawing Constitutional Lines After 
Shaw v. Reno, 92 Mich. L.Rev. 588, 602 ("Aleinikoff'). The 
problem is caused by the incomplete constitutional status of 
affirmative action plans in the voting rights realm. In United 
Jewish Organization v. Carey, 430 U.S. 144 (1977), the 
Supreme Court applied a more deferential standard to what 
the plurality deemed "benign" measures. One year later, the 
Court decided Regents of the University of California v. 
Bakke, 438 U.S. 265 (1978) following the theory that "the 
right not to be injured on the basis of one’s skin color was 
a personal right secured by the Constitution, and the 
asserted lack of an invidious purpose could not be a 
sufficient reason for reducing the level of judicial scrutiny 
applied to measures that disadvantaged persons on the basis 
of race." Aleinikoff, 92 Mich. L.Rev. at 592. Eleven years 
later, City o f Richmond v. J.A. Croson Co., 488 U.S. 469 
(1989) confirmed the notion that, since Bakke, the scrutiny 
applied under the Fourteenth Amendment Equal Protection 
Clause will not vary based on the race of the preferred 
group. 488 U.S. at 493. Shaw is consistent with the more 
recent equal protection precedents, focusing on individual 
rights as opposed to UJO’s group-based approach. 
Aleinikoff, 92 Mich. L.Rev. at 600. By not overruling UJO, 
Shaw v. Reno can be read to ratify "the earlier group-based 
decisions which focus on whether electoral schemes ’dilute’ 
the voting strength of protected minorities [while making 
clear] that the fact of non-dilution does not immunize 
districting plans from constitutional challenge." Id.

"A racial classification, despite purported motivation, 
is presumptively invalid and can be upheld only upon an 
extraordinary justification." Personnel Administrator o f 
Massachusetts v. Feeny, 442 U.S. 256, 272, 99 S.Ct. 2282, 
2293 (1979). Therefore, such legislation must be narrowly



7a

tailored to further a compelling governmental interest if it is 
to pass constitutional muster.

C
COMPELLING GOVERNMENTAL INTEREST

Defendants have proved no compelling governmental 
interest in distinguishing among citizens of Louisiana 
because of their race. Defendants contend that incumbency 
politics, the Voting Rights Act, and remedying past legal and 
social or continuing social discrimination justified the racial 
segregation of voters. We disagree. We note at the outset 
that incumbency politics cannot justify racial classifications. 
Adhering to federal anti-discrimination laws and remedying 
past or continuing discrimination could constitute compelling 
governmental interests if the State could "demonstrate a 
strong basis in evidence for its conclusion that remedial 
action was necessary." Croson, 488 U.S. at 510, 109 S.Ct. at 
730. Such a basis may be drawn from judicial, legislative, or 
administrative findings of constitutional or statutory 
violations.

1
Voting Rights Act

The State Legislature believed that the Voting Rights 
Act compelled the creation of a second majority-minority 
district.3 A careful review of those statutes and the caselaw

This belief was encouraged, if not demanded, by the Department 
of Justice, under an actual or implied threat of withholding Section 
5 pre-clearance. The shield became a sword. Whether the Attorney 
General had the right to withhold pre-clearance may be open to 
question, but she certainly had the power, and the threat, whether 
issued by her or some middle level bureaucrat, was a matter of real 
concern to the State. Litigation in the District of Columbia, and 
everywhere else is expensive. We hold, however, that a real concern



8 a

interpreting them reveals that the State’s belief was 
misplaced.

Under Section 5 of the Voting Rights Act, 42 U.S.C 
s 1973c, the State has an affirmative duty to avoid 
retrogression or enactment of a plan that has the purpose or 
effect of denying or abridging the right to vote because of 
race or color. Neither the State nor the Department of 
Justice offered any evidence suggesting that failure to create 
a second majority-minority district would either be a 
retrogression of minority strength or have an illegal purpose 
or effect. Not surprisingly, we can find no support for such 
a claim either. Section 5 cannot be read to compel the 
results of Act 1.

A Voting Rights Act Section 2 violation occurs when, 
under the totality of the circumstances, a State’s 
apportionment scheme has the effect of diminishing or 
abridging the voting strength of a protected class. In 
Thornburg v. Gingles, 478 U.S. 30,106 S.Ct. 2752 (1986), the 
Supreme Court enumerated three conditions to a Section 2 
"dilution" claim: (1) a numerous and compact minority, that 
is (2) politically cohesive, and (3) subject to majority bloc 
voting usually defeating the minority’s preferred candidate. 
438 U.S. at 50-51, 106 S.Ct at 2766. The evidence 
convincingly proves that the State cannot clear the first 
Gingles hurdle.* 4 Accordingly, Section 2 cannot serve as a 
compelling justification for Act 1. Certainly the Voting 
Rights Act would permit the creation of a second

is not a compelling one.

4Despite a minority population of approximately 30, demographic 
distribution is simply too diffuse (See Gov’t Exhibit 2) to generate 

a majority voting age population in any district outside of the Orleans 
Parish region. The State’s own expert confirmed that Louisiana’s 
minority population is simply not sufficiently concentrated to meet 
Gingles minimum requirements.



9a

majority-minority district, but the fact that such a district is 
permitted does not compel its creation. Shaw demands that 
we distinguish between what the Voting Rights Act requires 
and what it permits. 113 S.Ct at 2830. As for any 
arguments that Section 2 compels maximization of minority 
voting strength, the Supreme Court recently held:

(R)eading Section 2 to define dilution as any 
failure to maximize tends to obscure the very 
object of the statute and to run counter to its 
textually stated purpose. One may suspect 
vote dilution from political famine, but one is 
not entitled to suspect (much less infer) 
dilution from mere failure to guarantee a 
political feast ... Failure to maximize cannot 
be the measure of Section 2.

Johnson v. DeGrady, — U.S. — , —  S.Ct. — 1994 WI 
285792 (1994). Hence, did not have a basis in law or fact to 
believe that the Voting Rights Act required the creation of 
two majority-minority districts.5

2
Remediation of Past or Present Discrimination

Defendants elicited testimony that the sordid history 
of unconstitutional treatment of black citizens in Louisiana 
prompted the State to tinker with district lines in order to 
ensure minority control at the polls. Using the disease as a 
cure is a dangerous antidote, one that must be absolutely 
warranted before being administered. Ironically, one witness 
contended that the days of "white" and "colored" water

3 A strong basis under Gingles does exist, however, to warrant the 
creation of a majority-minority district in the Orleans Parish region, 
where one has existed since 1983. See M ajor v. Treen, 574 F.Supp. 
325 (E.D. La. 1983).



10a

fountains and bus seats justify distinct "white" and 
"African-American" congressional districts. What the 
defense failed to establish is where the Civil Rights Act of 
1964 and the Voting Rights Act of 1965 have failed to 
accomplish what the State now sets out to do. Without 
concrete evidence of the lingering effects of past 
discrimination or continuing legal prejudice in voting laws 
and procedures, coupled with specific remedies, we cannot 
agree that the re-segregation of Louisiana by racially 
configured voting districts is warranted.6 Croson and Bakke 
dictate this result.

Finally, we refuse to accept the explanation that 
citizen response to issues such as education, crime and 
health care is driven by skin pigmentation. Legitimation of 
that notion would herald the demise of equal protection.

Ill
THE COURT’S PLAN

Our strong preference is to leave to the Legislature 
the task of drawing election districts. We reluctantly set our 
hands to the task, considering the lateness of the hour, the 
dismal history of the Legislature in two previous attempts, 
foot-dragging by the defendants in the appeals and the risk 
that Louisiana might be without Congressional 
representation in January 1995. The districts that we drew 
split only 6 parishes of the sixty-four, followed traditional

6We also note, that, accepting arguendo the remediation 
argument as compelling, the defendants utterly failed to demonstrate 
how gerrymandering could remedy the problems asserted as 
compelling interests. That is exactly the problem with a sweeping 
remedy to an amorphous concept. Without properly defining the 
compelling interest, it is impossible for the State to narrowly tailor 
any plan.



11a

lines, only one town of approximately 3000 was divided, and 
the plan met all Constitutional one man-one vote 
requirements. It did ignore all political considerations. 
And, instructed by Gingles, we did not carve districts along 
race lines, except in District 2, where the Constitution and 
fairness requires us to consider it.7

IV
CONCLUSION

The Equal Protection Clause demands strict scrutiny 
of government use of race as a dividing line. This is an 
individual right in addition to any group-based protections 
that the Amendment affords. When voting districts are 
carefully planned like racial wards, an individual injury 
occurs. All citizens are stigmatized by the notion that their 
"interests" can be defined by race or will be represented 
adequately only if a member of their racial "group" holds a 
particular office. To reinforce such racial notions by 
operation of law seems to fly in the face of Justice Thurgood 
Marshall’s expressed hope in his argument in Cooper v. 
Aaron that we "learn to live together with fellow citizens, 
and above all to learn to obey the law."

I find a contrary position strangely at odds with the 
desires so eloquently voiced, not so long ago, in Shreveport, 
in Jackson, in Selma, in countless towns across the South, at 
schools and lunch counters, at voter registrar’s offices. They 
stood there, black and white, certain in the knowledge that 
the Dream was coming; determined that no threat, no 
spittle, no blow, no gun, no noose, no law could separate us 
because of the color of our skin. To say now: "Separate!" 
"Divide!" "Segregate!" is to negate their sacrifice, mock their 
dream, deny that self-evident truth that all men are created 
equal and that no government may deny them the equal

7See M ajor v. Treen, note 5 supra.



12a

protection of its laws.

The validity of equal protection and the systemic 
legitimacy of our electoral process are threatened when a 
State sculpts voting districts along race lines. As here, when 
the State cannot, or has not, offered and supported an 
extraordinary justification for these questionable measures, 
the race-conscious enactments must fall.



13a

SHAW, Chief District Judge, concurring:

I concur in the able opinion of the majority. It is an 
honest effort to provide a suitable plan for Congressional 
districts in Louisiana within the restraints of the 
Constitution. I would, however, like to add a few words 
which may be somewhat repetitive but which address matters 
in our December 28, 1993 ruling which we have adopted by 
reference as well as additional findings supported by the 
evidence. Applying the same constitutional analysis to Act 
1 has led us to a similar conclusion.

Again, this Court is called upon to answer the same 
question, "Does a state have the right to create a second 
racial majority-minority Congressional district by racial 
gerrymandering?"

The United States Supreme Court has answered that 
question for this court in Shaw v. Reno,1 "Yes, but only if 
the plan is narrowly tailored to further a compelling state 
interest."

For the following reasons, this Court finds that the 
Congressional Redistricting Plan embodied in Act 1 and 
District 4, in particular, is the product of racial 
gerrymandering and is not narrowly tailored to further any 
compelling governmental interests. The plaintiffs’ right to 
equal protection as guaranteed by the United States 
Constitution is violated by this redistricting plan, and as 
such, the plan is null and void.

‘508 U.S. —, 113 S.Ct. — , 125 L.Ed.2d 511 (1993).



14a

Racial gerrymandering

As stated in our previous opinion, racial 
gerrymandering is defined as the intentional segregation of 
voters on the basis of race. This Court is called upon to first 
determine whether the redistricting plan is the result of 
racial gerrymandering.

At trial, the witnesses for the State readily admitted 
that the purpose of District 4 was to create a second black 
majority district. The testimony of the state legislators and 
the State Senate Assistant Secretary confirmed that the 
district lines were driven by the fact that the black 
population in the State of Louisiana was sufficiently 
dispersed through the State that it was impossible to create 
a second majority black district without skewing the lines 
into a long irregular shape, as demonstrated by District 4 of 
the plan.

The districting plan embodied in Act 1 is highly 
irregular in its shape. Though it may be less bizarre than 
the plan created in Act 42, the physiognomy of District 4 
still strongly suggests that the Legislature engaged in racial 
gerrymandering in creating the district. Looking at District 
4 on a map of Louisiana, it appears as if someone knocked 
over an inkwell somewhere around Waskom, Texas, spilling 
ink aimlessly across the map of Louisiana. There is simply 
nothing regular about the contours of District 4.

This court acknowledges that the appearance or 
beauty of a district is irrelevant to a constitutional analysis; 
however, the irregularity in shape of a district is suspect and 
can indicate racial gerrymandering.

Although Shaw discusses the concept of bizarre or 
irregular shape as a means of demonstrating or inferring



15a

racial gerrymandering, the high court in no way indicated 
that shape alone was a determining factor in a finding of 
racial gerrymandering.

This Court finds, aside from the irregularity of the 
shape of this district, the evidence at trial clearly supported 
a finding of racial gerrymandering. The Louisiana 
Legislature abandoned traditional districting principles to 
arrive at a Plan which created two majority black voting 
districts. Act 1, like Act 42, completely disregards the 
traditional districting principles of compactness, respect for 
political subdivisions, and respect for commonality of 
interests.

a. Compactness

District 4, under Act 1, begins in Caddo Parish, and 
includes the Parishes of DeSoto, Red River, Sabine, and 
Natchitoches, all located in clearly defined North Louisiana, 
and ends in Ascension Parish, after cutting through the 
French region of Louisiana called "Acadiana," which includes 
Lafayette, St. Martin, St. Landry, and Evangeline Parishes. 
The district is approximately 250 miles long, and meanders 
through 15 parishes, making it considerably longer than any 
other district in the State. District 4 cuts up four major 
population centers of Louisiana, including Shreveport, 
Alexandria, Lafayette, and Baton Rouge, in its efforts to 
capture sufficient pockets of African-American voters, 
paying no respect to parish lines.2 The district points 
fingers out into Caddo, Rapides, and Lafayette Parishes, 
while taking small bites out of St. Martin and Iberville

2This court notes that District 4 covers, not only four major 
population centers of Louisiana, but includes four separate and major 
media centers of this state. Congressional candidates would be 
required to spend substantial amounts of money and time covering 
the voters in four major areas of the state.



16a

Parishes. A district that stretches over as much territory, 
touching so many media and population centers, cannot be 
said to be 
compact.

b. Respect for Political Subdivisions

Although Act 1 is an improvement from Act 42, the state 
legislature continues to disregard the parish lines in 
fashioning a plan to create a second minority district.

In the creation of District 4, the State found it 
necessary to fragment twelve of the fifteen parishes 
comprising District 4, splitting sixteen parishes statewide 
under the plan. District 4 is made up of pieces and parts of 
twelve parishes and splits four of the State’s largest cities, 
outside of New Orleans-Shreveport, Baton Rouge, 
Lafayette, and Alexandria. Clearly, Act 1 has no respect for 
Louisiana’s political subdivisions.

c. Commonality o f Interests

To say that District 4 comprises voters with common 
interests violates all traditional north-south, ethno-religious, 
economic and historical distinctions in Louisiana which 
created this State’s diverse personality.

D i s t r i c t  4 i nc ludes  N o r t h  L o u i s i a na  
English-Scotch-Irish, mainline Protestants, South Louisiana 
French-Spanish-German Roman Catholics, traditional rural 
black Protestants, and Creoles. The district encompasses 
North, Central, and South Louisiana, each of which has its 
own unique identity, interests, culture, and history. The 
agricultural regions of District 4 include cotton, soybean, 
rice, sugar cane, and timber. Such diverse agricultural 
constituency have few common interests. We continue to 
question how one Congressional representative could



17a

adequately represent the varying interests of residents in 
such far-flung areas of the State.

A district which disregards commonality of interests 
and stretches across the State in a haphazard manner 
without regard to political subdivisions can only be explained 
as the result of racial gerrymandering.

Justification for Defendant’s Plan

The State attempted to put forth a race-neutral 
explanation for its plan by the use of a geographer who 
testified that District 4 was drawn along the Red River 
Valley demonstrating a commonality of interest. The State 
failed in its burden of proof to show that the Red River 
Valley region in the State of Louisiana demonstrated a 
commonality of interests.

Secondly, the State offered as support for its plan, 
that District 4 of the plan was modeled after the old eighth 
district in Louisiana which was created for and represented 
by Congressman Gillis Long.

This Court is not swayed by the assertion that the 
tradition of the past regarding the old eighth district is 
binding on this Court, due to the fact that the old eighth 
district was never challenged on constitutionality by any 
court in the United States. This Court is not called upon to 
determine the constitutionality of the old eighth district, and 
does not rely on the fact that such a district existed in 
Louisiana. What was done by the Louisiana Legislature in 
the old eighth has no application to this case before this 
Court, and cannot be used as a comparable for the plan 
before this Court.

Accordingly, this Court finds that the only 
explanation of the State’s Redistricting Plan was racial 
gerrymandering. The State intentionally segregated voters



18a

into Congressional districts on the basis of race, in order to 
intentionally create a second black majority voting district.

Narrowly Tailored

A racially gerrymandered plan is subject to strict 
scrutiny, and as such it violates the Equal Protection Clause 
of the Fourteenth Amendment unless it is narrowly tailored 
to further a compelling governmental interest.

Again, the State advances two possible compelling 
state interests to justify their racial gerrymandering: (1)
compliance with the Voting Rights Act, and (2) remedying 
the effects of past discrimination.

a. Compliance with the Voting Rights Act

Section 5 of the Voting Rights Act provides that a 
state has an affirmative duty to avoid retrogression or to 
avoid enactment of a plan that has the purpose or effect of 
denying or abridging the right to vote on account of race.

The defendants established that the Louisiana 
Legislature was operating under the belief that a second 
majority-black district was mandated by the Department of 
Justice to avoid retrogression, and obtain preclearance. 
Without commenting further regarding the role of the 
Department of Justice in affecting the plan enacted in Act 
1, this Court finds no evidence to support a finding that a 
second majority-black district is required by Section 5 of the 
Voting Rights Act, to avoid retrogression. Prior to the 
census, Louisiana’s congressional delegation had only one 
black representative out of eight congressmen. Certainly, 
one congressman out of seven cannot constitute 
retrogression. Section 5 of the Voting Rights Act does not 
constitute a compelling governmental interest in this case.



19a

Additionally, Section 2 of the Voting Rights Act 
prohibits a plan that has the effect of diminishing or 
abridging the voting strength of a protected class. However, 
this claim must fall in the face of the Supreme Court’s ruling 
in Thornburg v. Gingles?

This Court finds that Section 2 of the Voting Rights 
Act is not implicated by this plan. Although the Voting 
Rights Act would permit a second minority district, such a 
district is not compelled by the Act.

b. Remedy Past Discrimination

The State advanced, as justification for its racially 
gerrymandered district, the belief that the creation of a 
second minority district in Louisiana is mandated to remedy 
the past discrimination which has existed in Louisiana.

This Court struggled with the concept of how to 
define "past discrimination" in Louisiana. Certainly, the 
histoiy of Louisiana, as of most states in the deep South 
with respect to its treatment of blacks, is indelibly imprinted 
in our memories. This State, having inflicted great atrocities 
against minorities, has made great strides in remedying past 
discrimination, being ever vigilant of its current existence in 
the attitudes of many of its residents today. Louisiana, in 
the sense of its history, will always have a history of past 
discrimination. However, this Court must determine 
whether this State has a history of past legal discrimination 
in the voting laws and procedures which compels it to make 
reparations and remediation.

The Civil Rights Act of 1964 and the voting Rights 
Act of 1965 have mandated the elimination of obstacles to 
minority participation at the polls. Since those turbulent

3478 U.S. 30, 106 S.Ct. 2752 (1986).



20a

times in Louisiana, and through the efforts of many black 
and white leaders in this State, we have seen the elimination 
of poll taxes, literacy tests, and violence to reduce or 
prohibit African-American participation in our elections 
process. Louisiana has minority representation in nearly 
every level of government, in almost every area of the State. 
Speaking only in the sense of the voting rights of minorities 
in Louisiana, this Court finds that there exist no significant 
obstacles for minorities in this State to participate in the 
elections process which have not been remedied by the Civil 
Rights Act of 1964 and the Voting Rights Act of 1965. 
Accordingly, the concept of remedying past discrimination is 
not a compelling governmental interest in the recent history 
of Louisiana in the area of voting rights.

This Court acknowledges the great benefits that are 
derived by an increase in minority representation in 
government, not only for those who are represented but also 
to the process of government itself. Given the opportunity 
to serve, minorities have shown that they perform admirably. 
A greater number of African-American leaders in the 
government process not only provide positive role models 
for all black citizens, but their efforts in government will 
insure that the legal obstacles to minority advancement in all 
areas of life will be eliminated. However, to disregard the 
rights of all citizens of the State of Louisiana would violate 
the Equal Protection Clause of the United States 
Constitution, and such a plan would do further violence to 
the ultimate goal of a colorblind system.

Although we found that the evidence presented at 
the hearing did not support the contention that the 
Legislature was operating pursuant to a compelling state 
interest, even if there had been satisfactory evidence at trial 
that there is a compelling state interest in creating a second 
majority-minority Congressional district, the plan embodied 
by Act 1 was not narrowly tailored to effect that interest. 
The fact that outside of the Orleans Parish area, the



21a

minority black population is relatively dispersed throughout 
the rest of the State, elicited the question of whether it was 
even possible to develop a districting plan that creates a 
second majority-minority district and is narrowly tailored, in 
the sense that the plan in total does not unduly burden the 
rights of third parties.

The Court Imposed Plan

This Court, with the assistance and guidance of our 
appointed special master, devised a Congressional Districting 
Plan. This plan was created from a computer program 
which included the demographics of the State of Louisiana. 
This Court started with the goal of creating seven 
Congressional districts, remaining true to the "one man, one 
vote" requirement, and the constraints of Shaw and Gingles.

After considering every combination available, this 
Court reached the conclusion that the diffused population of 
black voters in Louisiana, outside of District 2, makes it 
impossible to draw a Congressional plan which contains two 
minority-majority districts and passes constitutional muster. 
Act 1 clearly does not.

Conclusion

While this Court finds that the creation of a second 
minority-majority district in Louisiana is permissive and 
advantageous, we do not find it compelling, under the 
constraints of the Constitution.

This Court applauds the Louisiana Legislature in its 
efforts to create a second minority district; however, such 
efforts run aground of the Constitution and the dictates of 
Shaw v. Reno.



22a

APPENDIX C

[Filed Jul. 25, 1994]

UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF LOUISIANA 

SHREVEPORT DIVISION

Civil Action No. CV 92-1522S

RAY HAYS, ET AL., PLAINTIFFS 

versus

EDWIN W. EDWARDS, in his official 
capacity as Governor of the State of 
Louisiana, ET AL., DEFENDANTS

ORDER

IT IS ORDERED that Plaintiffs’ Motion for 
Judgment as a Matter of Law be and it is hereby 
GRANTED.

IT IS FURTHER ORDERED that Act 1 of the 
Second Special Session of the 1994 Louisiana Legislature 
(the Act) is unconstitutional, in that it violates the Equal 
Protection Clause of the Fourteenth Amendment of the 
United States Constitution, and the redistricting plan 
embodied in the Act is null and void.

IT IS FURTHER ORDERED that the State of



23a

Louisiana is permanently enjoined from holding any 
elections under the Act.

IT IS FURTHER ORDERED that, although we do 
not invalidate the 1992 congressional elections, the term of 
office of each member of the United States House of 
Representatives from Louisiana who represents a district 
created under the plan in Act 42 of 1992 of the State of 
Louisiana, and each district created under such plan, shall 
expire, ipso facto, at noon on the 3rd day of January, 1995, 
and such terms of office and such districts shall not be 
extended or carried over into the next Congress in any 
manner whatsoever.

IT IS FURTHER ORDERED that a congressional 
redistricting plan for the State of Louisiana is hereby 
provided, as set forth in Appendix A, on the basis of which 
all congressional elections for the seven (7) United States 
Representatives from the State of Louisiana to the One 
Hundred Fourth Congress shall be conducted, with the dates 
for qualifying and for holding such elections to be 
established by the cognizant officials of the State of 
Louisiana according to law; and that all subsequent elections 
of United States Representatives from the State of Louisiana 
shall be conducted under the plan provided by this court 
until and unless a congressional districting plan enacted by 
the State of Louisiana according to law is submitted to this 
court and is determined by it to be constitutionally valid.

IT IS FURTHER ORDERED that, as prevailing 
parties in all phases of this case to date, the Plaintiffs are 
entitled to recover all reasonable costs, attorneys’ fees and 
expenses, including reasonable expert witness fees, pursuant 
to 42 U.S.C. 1988, in amounts to be determined by reference 
to United States Magistrate Judge Roy S. Payne for review 
and recommendations; provided, however, that such 
determination shall not prevent this Order from becoming 
final immediately upon its being filed.



24a

This court reserves the right to issue, and intends to 
issue, a memorandum opinion consistent with this Order.

FOR THE COURT:

/s/ Donald E. Walter
DONALD E. WALTER 
District Judge

[Judgment Entered 7-26-94]



25a

LOUISIANA CONGRESSIONAL DISTRICTS

The State of Louisiana is divided into the following 
seven Congressional Districts:

DISTRICT 1

District 1 is composed of Precincts 3-G, 5-G, 8-G,
9-G, 10-G, 1-H, 2-H, 3-H, 4-H, 5-H, 6-H, 7-H, 8-H,
9- H, 1-K, 2-K, 3-K, 4-K, 5-K, 6-K, 7-K, 8-K, 9-K,
10- K, 11-K, 12-K, 13-KA, 15-K, 16-K, 17-K, 18-K,
19-K, 20-K, 25-K, 27-K, 28-K, 34-K, 1, 2, 3, 4, 5, 
6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 
21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33,
34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46,
51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63,
64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76,
77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89,
90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 
103, 105, 106, 116, 117, 118, 119, 120, 121, 122,
123, 124, 125, 126, 127, 128, 129, 130, 132, 134,
135, 136, 137, 170, 171, 174B, 175, 176, 177, 178,
182, 183, 184, 185, 193, 194A, 195, 210, 211, 225,
226, 227, 228, 229, 230, 231, and 234 of Jefferson 
Parish; Precincts 3-20, 4-8, 4-9, 4-10, 4-10A, 4-11,
4-12, 4-13, 4-13A, 4-14, 4-14A, 4-15, 4-16, 4-16A,
4-17, 4-17A, 4-18, 4-18A, 4-19, 4-20, 4-20A, 4-21,
4- 21A, 4-22, 4-23, 5-12, 5-13, 5-14, 5-15, 5-16, 5-17,
5- 18, 5-19, 7-33A, 7-40, 7-41, 7-42, 12-4, 13-1, 14-1, 
14-2, 14-3, 14-4, 14-8, 14-9, 14-10, 14-11, 16-2, 17-1, 
17-17, 17-18, 17-18A, 17-18B, 17-19, 17-19A, 17-20, 
and 17-21 of Orleans Parish; St. Tammany Parish; 
Tangipahoa Parish; and Washington Parish.



26a

DISTRICT 2
District 2 is composed of Precincts 1-G, 2-G, 4-G,
6-G, 7-G, 11-G, 13-KB, 14-K, 21-K, 22-K, 23-K, 24-K, 
26-K, 29-K, 30-K, 31-K, 32-K, 33-K, 1-W, 2-W, 3-W,
4- W, 5-W, 6-W, 7-W, 8-W, 9-W, 104, 107, 115, 
131, 133, 138, 150, 151, 152, 153, 154, 155, 156, 
157A, 157B, 172, 173, 174A, 179A, 179B, 180, 181, 
186, 187, 188, 189, 190, 191, 192, 194B, 196, 197, 
198, 212, 213A, 213B, 213C, 214, 215, 232, 233, 
235, 236, 237, 246A, and 246B of Jefferson Parish 
and Precincts 1-1, 1-2, 1-5, 1-6, 1-7, 2-1, 2-2, 2-3,
2- 4, 2-5, 2-6, 2-6A, 2-7, 3-1, 3-3, 3-4, 3-5, 3-6,
3- 7, 3-8, 3-9, 3-10, 3-12, 3-13, 3-14, 3-15, 3-16, 3-17, 
3-18, 3-19, 4-2, 4-3, 4-4, 4-5, 4-6, 4-7, 5-1, 5-2, 5-3,
5- 4, 5-5, 5-6, 5-7, 5-8, 5-9, 5-10, 5-11, 6-1, 6-2, 6-4,
6- 5, 6-6, 6-7, 6-8, 6-9, 7-1, 7-2, 7-4, 7-4A, 7-5, 7-6,
7- 7, 7-8, 7-9, 7-9A, 7-10, 7-11, 7-12, 7-13, 7-14, 7-15,
7-16, 7-17, 7-18, 7-19, 7-20, 7-20A, 7-21, 7-22, 7-23,
7-24, 7-25, 7-25A, 7-26, 7-26A, 7-27, 7-27A, 7-27B,
7-28, 7-28A, 7-29, 7-30, 7-31, 7-32, 7-33, 7-34, 7-35,
7- 36, 7-36A, 7-37, 7-37A, 7-38, 7-38A, 7-39, 8-1, 8-2,
8- 4, 8-5, 8-6, 8-7, 8-8, 8-9, 8-10, 8-11, 8-12, 8-13,
8-14, 8-15, 8-16, 8-17, 8-18, 8-19, 8-20, 8-21, 8-22,
8-23, 8-24, 8-25, 8-25A, 8-26, 8-26A, 8-27, 8-27A,
8- 28, 8-29, 8-30, 9-1, 9-2, 9-3, 9-3A, 9-3B, 9-4, 9-5,
9- 5A, 9-6A, 9-6B, 9-6C, 9-6D, 9-6E, 9-6F, 9-7, 9-8,
9-8A, 9-8B, 9-9, 9-10, 9-11, 9-12, 9-13, 9-14, 9-15,
9-16, 9-17, 9-18, 9-19, 9-20, 9-21, 9-22, 9-23, 9-24,
9-25, 9-25A, 9-26, 9-26A, 9-27, 9-28, 9-28A, 9-28B, 
9-28C, 9-28D, 9-28E, 9-28F, 9-29, 9-29A, 9-30, 9-30A, 
9-31, 9-31A, 9-31B, 9-31C, 9-31D, 9-31E, 9-32, 9-33, 
9-33A, 9-34, 9-34A, 9-35, 9-35A, 9-36, 9-36A, 9-36B, 
9-36C, 9-37, 9-37A, 9-38, 9-38A, 9-38B, 9-39, 9-39A, 
9-39B, 9-40, 9-40A, 9-40B, 9-40C, 9-41, 9-41 A, 9-41B,



27a

9-41C, 9-41D, 9-42, 9-42A, 9-42B, 9-42C, 9-42D,
9-42E, 9-43, 9-43A, 9-43B, 9-43C, 9-43D, 9-43E, 9-43F, 
9-43G, 9-43H, 9-431, 9-43J, 9-43K, 9-43L, 9-43M,
9-43N, 9-44, 9-44A, 9-44B, 9-4C, 9-44D, 9-44E,
9-44F, 9-44G, 9-44H, 9-441, 9-44J, 9-44K, 9-44L,
9- 44M, 9-44N, 9-440, 9-44P, 9-44Q, 9-45, 9-45A,
10- 3, 10-4, 10-5, 10-6, 10-7, 10-8, 10-9, 10-10, 10-11,
10- 12, 10-13, 10-14, 11-1, 11-2, 11-3, 11-4, 11-5, 11-6,
11- 7, 11-8, 11-9, 11-10, 11-11, 11-12, 11-13, 11-14,
11- 15, 11-16, 11-17, 11-18, 11-19, 12-1, 12-2, 12-3,
12- 5, 12-6, 12-7, 12-8, 12-9, 12-10, 12-11, 12-12,
12- 13, 12-14, 12-15, 12-16, 12-17, 12-18, 12-19, 12-20,
13- 2, 13-3, 13-4, 13-5, 13-6, 13-7, 13-8, 13-9, 13-10,
13- 11, 13-12, 13-13, 13-14, 13-14A, 13-15, 13-16,
14- 5, 14-6, 14-7, 14-12, 14-13, 14-13A, 14-14, 14-15,
14-16, 14-17, 14-18, 14-18A, 14-19, 14-20, 14-21,
14- 22, 14-23, 14-24, 14-24A, 14-25, 14-26, 14-26A,
15- 1, 15-2, 15-3, 15-4, 15-5, 15-6, 15-7, 15-8, 15-9,
15-10, 15-11, 15-11A, 15-12, 15-12A, 15-13, 15-13A, 
15-13B, 15-14, 15-14A, 15-14B, 15-14C, 15-14D, 
15-14E, 15-14F, 15-14G, 15-15, 15-15A, 15-15B, 
15-16, 15-17, 15-17A, 15-17B, 15-18, 15-18A, 15-18B, 
15-18C, 15-18D, 15-18E, 5-18F, 15-19, 15-19A,
15- 19B, 15-19C, 16-1, 16-1A, 16-3, 16-4, 16-5, 16-6,
16- 7, 16-8, 16-9, 17-2, 17-3, 17-4, 17-5, 17-6, 17-7,
17- 8, 17-9, 17-10, 17-11, 17-12, 17-13, 17-13A, 17-14, 
17-15, and 17-16 of Orleans Parish.

DISTRICT 3
District 3 is composed of Precints 13, 14, 15, 16A & 
16B, 27A, 27B, 28, 29, 31, 32, 33, 34, 35A, 35B, 36, 
37, 40, 41, and 42 of Ascension Parish; Assumption 
Parish; Iberia Parish; Precinct 1-GI, 1-LA, 1-LB,
2-L, 216, 217, 238, 247, 248, 249, and 250 of Jeffer­



28a

son Parish; Lafourche Parish; Plaquemines Parish; 
St. Bernard Parish; St. Charles Parish; St. James 
Parish; St. John the Baptist Parish; Precincts 1-1,
1-2, 1-3, 1-4, 1-5, 1-6, 1-7, 2-1 & 2-3, 2-2, 2-4, 3-1,
3- 2, 3-3, 3-4, 3-5, 3-6, 3-7, 3-8, 3-9, 4-1, 4-2, 4-3, 4-4,
4- 5, 4-6, 5-1, 5-2, 5-3 & 5-4, 6-1, 6-2, 6-3, 6-4, 7-1, 
7-2, 7-3, 7-4, 8-1, 8-2, 8-3, 8-4, 9-1, 9-4, and 9-5 of 
St. Martin Parish; St. Mary Parish; and Terrebonne 
Parish.

DISTRICT 4
District 4 is composed of Precincts 1-1, 1-3, 1-4. 1-6, 
1-7, 2-6-0, 3-1, 4-1, 4-2, 4-3, 5-2, 5-2A*, 5-5, and 5-10 
of Allen Parish; Beauregard Parish; Bienville Par­
ish; Bossier Parish; Caddo Parish; Claiborne Parish; 
De Soto Parish; Natchitoches Parish; Red River Par­
ish; Sabine Parish; Vernon Parish; and Webster 
Parish.

DISTRICT 5
District 5 is composed of Avoyelles Parish; Caldwell 
Parish; Catahoula Parish; Concordia Parish; East 
Carroll Parish; Precincts 1-2, 1-13-0, 1-13-1, 4-1-2R,
4- 1-3R, 4-1C, 4-2-0, 4-2-1, 4-3, 4-4, 5-1, 5-2-0, 5-2-1,
5- 2-2, 5-3, 5-4C, 5-4R, and 5-5 of Evangeline Parish; 
Franklin Parish; Grant Parish; Jackson Parish; 
La Salle Parish; Lincoln Parish; Madison Parish; 
Morehouse Parish; Ouachita Parish; Rapides Parish; 
Richland Parish; Tensas Parish; Union Parish; West 
Carroll Parish; and Will Parish.

DISTRICT 6
District 6 is composed of Precincts 1, 2A & B, 3, 4A, 
4B, 5A, 5B, 6, 7A, 8A & 8B, 9, 10A & 10B, 11A & 
11B, 12, 21A & 21B, 22A, 22B, and 23 of Ascension



29a

Parish; East Baton Rouge Parish; East Feliciana 
Parish; Iberville Parish; Livingston Parish; Pointe 
Coupee Parish; St. Helena Parish; West Baton Rouge 
Parish; and West Feliciana Parish.

DISTRICT 7
District 7 is composed of Acadia Parish; Precincts
1- 2, 1-5, 2-1, 2-2-C, 2-2-0, 2-3, 2-4-C, 2-4-0, 2-5,
2- 6-C, 3-2, 5-1, 5-3, 5-3A*, 5-4-C, 5-4-0, 5-4-X*, 
5-4-Y*, 5-6, 5-7, 5-8, 5-8A*, 5-9, 5-11, 5-12 and 5-13 
of Allen Parish; Calcasieu Parish; Cameron Parish; 
Precincts 1-1, 1-3, 1-4-OR, 1-4-1R, 1-4C, 1-5-0, 1-5-1, 
1-6, 1-7, 1-8-0, 1-8-1, 1-8-2, 1-9-OC, 1-9-1C, 1-9-2-C, 
1-9-3C, 1-9R, 1-10-0, 1-10-1, 1-11, 1-12, 1-14, 1-15, 
1-16, 1-17-OR, 1-17-1R, 1-17C, 1-18-OC, 1-18-1C, 
1-18R, 1-19, 2-1, 2-2, 2-3, 2-4, 2-5, 3-1-0, 3-1-1, 3-2-0,
3- 2-1, 3-2-2, 3-3, 3-4, 3-5, 3-6-0, 3-6-1, 3-6-2, 3-7, 3-8,
4- 1-OR, and 4-1-1R of Evangeline Parish; Jefferson 
Davis Parish; Lafayette Parish; St. Landry Parish; 
Precincts 9-2, and 9-3 of St. Martin Parish; and Ver­
milion Parish.
The precincts enumerated herein are the precincts 
existing on April 17, 1994 established by the respec­
tive parish governing authority and used by the 
Louisiana Legislature in Act 1 of the Second Extraor­
dinary Session of 1994.



30a

DB: LA SEN 1994
Congressional District Statistics 

Total Population

Total Ideal %
District Number Popu­ Popu­ District District
Name Members lation lation Variance Variance

District 1 1 602,842 602,853 -1 1 0.00%
District 2 1 602,877 602,853 24 0.00%
District 3 1 602,839 602,853 - 1 4 0.00%
District 4 1 602,876 602,853 23 0.00%
District 5 1 602,933 602,853 80 0.01%
District 6 1 602,774 602,853 -7 9 -0.01%
District 7 1 602,832 602,853 -2 1 0.00%

602,774 to 602,933
1.0003
- 7 9  to 80
159
-0 .0 1  to 0.01% 
0.03%
36.00
0.01%

PLANWIDE STATISTICS:
Range of populations: 
Ratio range:
Absolute range:
Absolute overall range: 
Relative range:
Relative overall range: 
Absolute mean deviation: 
Relative mean deviation:



D B : L A  S E N  1 9 9 4 Congressional District Summary 
Total Population and 1994 Registered Voters

District
Name

Total
Pop.

Total
White

Total
Black

District 1 602,842
100.00%

515,665
85.54%

72,979
12.11%

District 2 602,877
100.00%

215,630
35.77%

365,874
60.69%

District 3 602,839
100.00%

443,616
73.59%

142,167
23.58%

District 4 602,876
100.00%

397,629
65.96%

195,980
32.51%

District 5 602,933
100.00%

410,725
68.12%

187,223
31.05%

District 6 602,774
100.00%

402,995
66.86%

191,421
31.76%

District 7 602,832
100%

452,878
75.13%

143,637
23.83%

Total
4,219,973
100.00%

2,839,138
67.28%

1,299,281
30.79%

Total 
Reg. Vot. Reg. Wh.

Total 
Reg. Blk.

332,945
100.00%

296,205
88.97%

32,354
9.72%

292,713
100.00%

110,239
37.66%

176,552
60.32%

330,048
100.00%

250,432
75.88%

76,915
23.30% u>

299,652
100.00%

214,031
71.43%

82,876
27.66%

>—* w

333,182
100.00%

239,419
71.86%

92,379
27.73%

332,407
100.00%

238,560
71.77%

91,507
27.53%

336,429
100.00%

258,583
76.86%

76,329
22.69%

2,257,376
100.00%

1,607,469
71.21%

628,912
27.86%



D B : L A  S E N  19 9 4 Parish Population by Congressional District 
Total Population and 1994 Registered Voters

Census Total Total Total Total Total Total
Unit Pop. White Black Reg. Vot. Reg. Wh. Reg. Blk.

District 1
Jefferson Parish 289,679 261,785 16,940 153,838 145,986 5,351
Orleans Parish 39,761 36,804 2,219 26,264 24,516 1,318
St. Tammany Parish 144,508 126,806 15,917 82,209 73,706 7,225
Tangipahoa Parish 85,709 60,601 24,527 45,988 84,015 11,831
Washington Parish 43,185 29,669 13,376 24,646 17,982 6,629
Total District 1 602,842 515,665 72,979 332,945 296,205 32,354
District 2
Jefferson Parish 145,700 78,880 60,365 63,586 86,331 25,897
Orleans Parish 457,177 136,750 305,509 229,127 73,908 150,655
Total District 2 602,877 215,630 365,874 292,713 110,239 176,552
District 3
Ascension Parish 21,079 10,831 10,107 13,202 7,186 5,983
Assumption Parish 22,753 15,273 7,349 13,823 9,411 4,410
Iberia Parish 68,297 46,940 20,154 38,442 27,371 10,951
Jefferson Parish 12,927 10,505 1,737 6,940 6,011 737
Lafourche Parish 85,860 72,371 10,703 43,794 39,464 4,243
Plaquemines Parish 25,575 18,522 5,944 14,589 10,454 3,137
St. Bernard Parish 66,631 62,199 3,111 39,195 37,308 1,754
St. Charles Parish 42,437 31,638 10,253 25,533 19,315 6,184



St. James Parish 
St. John the Baptist Parish 
St. Martin Parish 
St. Mary Parish 
Terrebonne Parish 
Total District 3

District 4 
Allen Parish 
Beauregard Parish 
Bienville Parish 
Bossier Parish 
Caddo Parish 
Claiborne Parish 
De Soto Parish 
Natchitoches Parish 
Red River Parish 
Sabine Parish 
Vernon Parish 
Webster Parish 
Total District 4

District 5 
Avoyelles Parish 
Caldwell Parish 
Catahoula Parish 
Concordia Parish 
East Carroll Parish 
Evangeline Parish

20,879 10,484
39,996 25,039
41,337 27,044
68,086 37,688
96,982 75,082

602,839 443,616

7,050 6,049
30,083 25,242
15,979 8,986
86,088 67,030

248,253 146,580
17,405 9,313
25,346 14,003
36,689 22,357
9,387 5,752

22,646 17,939
61,961 45,828
41,989 28,550

602,876 397,629

39,159 28,324
9,810 7,970

11,065 8,136
20,828 13,164

9,709 3,355
6,405 5,776

10,357 13,676
14,419 22,263
13,664 24,405
18,337 30,986
16,032 43,200

142,167 330,048

972 4,794
4,489 16,481
6,949 9,883

17,381 39,519
99,511 123,515

8,041 9,228
11,141 14,403
13,779 20,534
3,589 5,997
3,984 13,586

12,867 20,275
13,277 21,437

195,980 299,652

10,585 23,253
1,760 6,397
2,874 7,573
7,596 12,063
6,291 5,774

613 4,234

7,093 6,567
13,593 8,580
16,495 7,850
21,270 9,508
35,461 7,011

250,432 76,915

4,114 663
14,255 2,125
5,606 4,270

83,037 6,146
81,992 40,524

5,348 3,871
8,429 5,489

13,096 7,146
3,848 2,144

11,310 2,206
17,723 2,135
15,273 6,157

214,031 82,876

17,472 5,729
5,357 1,031
5,738 1,822
7,868 4,184
2,303 3,436
3,858 371



Census
Unit

Franklin Parish 
Grant Parish 
Jackson Parish 
La Saile Parish 
Lincoln Parish 
Madison Parish 
Morehouse Parish 
Ouachita Parish 
Rapides Parish 
Richland Parish 
Tensas Parish 
Union Parish 
West Carroll Parish 
Winn Parish 
Total District 5
District 6 
Ascension Parish 
East Baton Rouge Parish 
East Feliciana Parish 
Iberville Parish 
Livingston Parish 
Pointe Coupee Parish 
St. Helena Parish 
West Baton Rouge Parish 
West Feliciana Parish 
Total District 6

Total Total
Pop. White
22,387 15,278
17,526 14,860
15,705 11,065
13,662 12,271
41,745 24,620
12,463 4,961
31,938 18,584

142,191 96,870
131,556 92.989
20,629 13,020

7,103 3,292
20,690 14,850
12,093 9,997
16,269 11,343

602,933 410,725

37,135 33,649
380,105 240,614

19,211 10,022
31,049 16,519
70,526 66,269
22,540 13,196
9,874 4,725

19,419 12,329
12,915 5,672

602,774 402,995

Total Total
Black Reg. Vot.
7,040 13,240
2,540 10,566
4,589 9,297
1,257 10,185

16,590 20,477
7,415 7,834

13,263 17,008
44,096 70,344
36,805 68,931

7,539 11,586
3,785 4,503
5,767 12,816
2,020 6,808
4,798 10,844

187,223 333,182

3,161 21,626
132,328 199,491

9,083 10,844
14,385 20,020
3,920 40,589
9,275 14,550
5,127 7,834
6,993 11,645
7,149 5,808

191,421 332,407

Total Total
Reg. Wh. Reg. Blk.

9,682 3,549
9,015 1,523
6,663 2,620
8,748 1,324

12,814 7,450
3,597 4,207

10,816 6,178
51,233 18,890
51,287 17,105
7,835 3,726
2,217 2,283
9,449 3,347
5,809 986
6,129 3,804

239,419 92,379

20,151 1,402
139,379 58,868

6,129 1,804
10,953 9,058
38,303 2,232

8,899 5,644
3,831 3,996
7,473 4,154
3,442 2,349

238,560 91,507

Bi



District 7 
Acadia Parish 
Allen Parish 
Calcasieu Parish 
Cameron Parish 
Evangeline Parish 
Jefferson Davis Parish 
Lafayette Parish 
St. Landry Parish 
St. Martin Parish 
Vermilion Parish 
Total District 7

55,882 45,532
14,176 10,259

168,134 128,181
9,260 8,685

26,869 18,629
30,722 24,721

164,762 125,340
80,331 47,532

2,641 1,762
50,055 42,237

602,832 452,878

10,179 32,718
3,524 8,177

88,445 84,484
503 6,125

8,088 17,546
5,836 17,704

36,846 89,268
32,392 48,634

868 1,498
6,956 30,285

143,637 336,429

26,875 5,817
6,126 1,896

66,510 17,423
5,776 342

12,336 5,193
14,562 3,116
70,268 18,467
28,873 19,638

1,021 474
26,236 3,963

258,583 76,829



u>
Os
to



37a

[F IL E D  - Ju ly 29 , 1993]

IN  T H E  U N I T E D  S T A T E S  D IS T R IC T  C O U R T  F O R  
T H E  W E S T E R N  D IS T R IC T  O F  L O U IS IA N A  

S H R E V E P O R T  D IV IS IO N

H A Y S , E T  A L .

V S  C IV IL  A C T IO N  N O . 9 2 -1 5 2 2

S T A T E  O F  L O U IS IA N A , E T  A L .

O R D E R

APPENDIX D

P e tit io n e r s  B e m a d in e  St. Cyr, e t  a l.’s  Ju ly 27 , 1993  
M o tio n  to  In ter v en e  is D E N I E D . T h ey  m ay a p p ea r  as am ici 
for  b r iefin g  p u rp o ses only.

T h is  m a tter  is se t for  an  E v id en tiary  h earin g  o n  th e  
19th  d ay o f  A u g u st, 1993 at 2 :00 P .M . in  th e  U n ite d  S ta te s  
D istr ic t C ou rt in S h revep ort, L o u isia n a , lim ited  to  an  
op p o rtu n ity  for  th e  P a rtie s  to  sh ow  w h e th e r  th e  ex istin g  p lan  
w as "narrowly ta ilo red  to  fu rth er a c o m p e llin g  g o v ern m en ta l  
interest."

T H U S  D O N E  A N D  S IG N E D , in S h revep ort, 
L o u is ia n a  th is 2 9 th  day o f  July, 1993.

D o n a ld  E . W a lter  /si
D O N A L D  E . W A L T E R
U N I T E D  S T A T E S  D IS T R IC T  J U D G E



38a

APPENDIX E

R ay  H A Y S , e t  a l., P la in t if fs -A p p e lle e s ,

v .

S T A T E  O F  L O U IS IA N A , e t  al., 
D e fe n d a n ts -A p p e lle e s ,

v.

B e m a d in e  ST . C Y R , e t a l., 
M o v a n ts-A p p e lla n ts .

N o . 9 3 -5 1 9 2 .

U n ite d  S ta te s  C ou rt o f  A p p ea ls ,
F ifth  C ircuit.

A p ril 20 , 1994.

R e h e a r in g  D e n ie d  M ay  17, 1994 .

B e fo r e  P O L IT Z , C h ie f  Ju d ge , K IN G  an d  D A V I S , C ircuit 
Ju d ges.

P O L IT Z , C h ie f  Judge:
B e m a d in e  St. Cyr and  o th ers ("St. Cyr") a p p e a l th e  d en ia l by 
a th re e - ju d g e  d istrict cou rt o f  th e ir  a ttem p t to  in terv e n e  in 
l i t ig a t io n  c h a lle n g in g  th e  L o u is ia n a  L e g is la tu r e ’s 
co n g re ss io n a l red istr ic tin g  p lan . L ack in g  ju risd ic tion  w e  
d ism iss th e  ap p ea l.

B A C K G R O U N D

T h e  p la in tiffs  c h a lle n g e d  th e  leg is la tiv e  red istr ic tin g  
p lan  for  a lleg ed ly  em p lo y in g  racial gerrym an d erin g  in



39a

v io la tio n  o f  th e  V o tin g  R ig h ts  A c t an d  th eir  fifth  and  
fo u r teen th  a m e n d m e n t rights to  eq u a l p ro te c tio n . A  
th ree-ju d g e  d istrict cou rt w as co n v e n e d  u n d er  2 8  U .S .C . s 
2284 . A  trial w as h e ld  in  A u g u st 1992  an d  th e  cou rt d en ie d  
th e  co n stitu tio n a l c la im s an d  p rayer for  an  in jun ction . T h e  
cou rt re ta in e d  ju risd ic tion  o v er  th e  ca se , h ow ever , co n tin u in g  
to  co n s id e r  p la in tiffs ’ c la im s u n d er  th e  V o tin g  R ig h ts  A c t.

In  J u n e  1993 th e  S u p rem e C ou rt ren d ered  its 
d ec is io n  in Shaw v. Reno,1 h o ld in g  th at co n stitu tio n a l eq u a l 
p ro te c tio n  c la im s ap ply  to  ap p o rtio n m en t sch em es. T h e  
fo llo w in g  m o n th  St. Cyr f iled  a m o tio n  to  in terv en e . In  a 
sin g le -ju d g e  o rd er  th e  cou rt prom p tly  d en ie d  th at m o tio n  
but sch ed u le d  an  ev id en tiary  h earin g  in w h ich  St. Cyr and  
o th e r  in te r e ste d  p arties  w ere  in v ited  to  p artic ip a te  as amici. 
St. Cyr a p p e a le d  th e  d istrict co u rt’s d en ia l o f  in terv en tio n  to  
th is cou rt. S u b seq u en t to  th at a p p ea l th e  d istrict cou rt 
d e c la r e d  th e  L o u is ia n a  a p p o r t io n m e n t  s c h e m e  
u n co n stitu tio n a l an d  en jo in ed  fu tu re e le c tio n s  th ereu n d er . 
T h e  S ta te  o f  L o u isia n a  n o tic e d  its a p p ea l o f  th a t d ec is io n  to  
th e  S u p rem e C ou rt.2

A N A L Y S IS

St. Cyr co m p la in s  th at th e  th ree-ju d ge  d istrict cou rt 
im p rop erly  d en ie d  h er  m o tio n  to  in terv en e . B e fo r e  
a d d ressin g  th e  m erits o f  h er  ap p ea l w e  m u st first d ete rm in e  
w h e th e r  w e  h a v e  a p p e lla te  ju risd iction  in th is m atter . W e  
n o w  co n fro n t th e  con u n d ru m  p rev iou sly  h yp oth esized : a 
c a se  w h ich  is "fragm ented  or sp lit in to  p ie c e s  for  p u rp o ses o f  
appeal,"  w ith  th e  "order gran tin g  th e  in jun ction  ... b efin g]  
a p p e a le d  d irectly  to  th e  S u p rem e Court" w h ile  re la ted

1 — U.S. — , 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993).

2 See 28  U.S.C. s 1253.



40a

n o n -in ju n ctio n  issu es are a p p e a le d  to  u s.3 W e  c o n c lu d e  th a t  
w e  m ay  n o t ex e rc ise  ju r isd ic tion  o v e r  S t. C yr’s a p p e a l.

S t. C yr u n d erstan d ab ly  a rg u es th e  g en er a l ru le th at 
u n d er  2 8  U .S .C . s  1253  th is  cou rt is th e  a p p ro p r ia te  foru m  
fo r  th e  a p p ea l o f  a th re e -ju d g e  d istrict cou rt d en ia l o f  an  
in terv e n tio n .4 S h e  p ersu asive ly  argu es th a t th e  S u p rem e  
C ou rt w ill n o t a cc ep t a d irect a p p e a l a b sen t a  fin a l ju d g m en t  
o n  th e  in ju n ctive  r e lie f  by th e  th ree-ju d g e  co u rt.5 T h e  c a se s  
c ite d , h o w ev er , d iffer  fac tu a lly  an d  leg a lly  from  th e  c a se  at 
bar.6

3 Jagnandan v. Giles, 538 F.2d 1166, 1171 (5th Cir.1976), cert, 
denied, 432 U.S. 910, 97 S.Ct. 2959, 53 L.Ed.2d 1083 (1977).

*See U nited States v. Louisiana, 543 F.2d 1125 (5th Cir.1976) 
(citing M TM , Inc. v. Baxley, 420 U.S. 799, 95 S.Ct. 1278, 43 L.Ed.2d 
636 (1975)). While the court of appeals is generally the proper forum 
for appealing a denial of intervention, we have not considered a 
possible exhaustion of remedies prerequisite. Section 2284(b)(3) 
provides that single-judge orders may be reviewed by the full 
three-judge district court panel. St. Cyr did not avail herself of this 
option. We have imposed exhaustion requirements where the body 
whose decision we are reviewing has a pre-appeal mechanism through 
which it might "correct its own errors." Cf. Parisi v. D avidson, 405 
U.S. 34, 37, 92 S.Ct. 815, 818, 31 L.Ed.2d 17 (1972). Whether the 
opportunity to appeal the single- judge order to the three-judge 
district court creates a responsibility to do so before appealing to this 
court is an open question. Given our conclusion on jurisdiction, 
however, we do not reach this issue.

5The Supreme Court has narrowly construed its ability to take 
direct appeals under section 1253. M TM ; G onzalez v. A u tom atic  
E m ployees Credit Union, 419 U.S. 90, 95 S.Ct. 289, 42 L.Ed.2d 249 
(1974).

6E.g., Jagnandan, 538 F.2d at 1171 ("The absence of an appeal 
from the injunctive relief eliminates that hypothetical [of 
simultaneous appeals in separate courts] from surfacing here.").



41a

W e  are aw are o f  n o  "G oose"7 c a se  by th e  S u p rem e  
C ou rt d isp o sin g  o f  th is  issu e . W e  are  a id ed , h o w ev er , by a 
d ec is io n  o f  ou r c o lle a g u e s  in  th e  E igh th  C ircu it8 w h o  
d ec lin e d  to  act o n  an  a p p e a le d  d en ia l o f  in terv en tio n  w h ere  
th e  m er its  o f  a th ree-ju d g e  cou rt ru ling w as o n  a p p e a l to  th e  
S u p rem e C ou rt. T h e  factu a l situ a tio n  at b ar is th e  sam e; 
on ly  th e  tim in g  o f  th e  n o tic e s  o f  a p p ea l d iffer .

W e  c o n c lu d e  th at o n c e  th er e  h as b e e n  a tim e ly  and  
a p p rop r ia te  a p p ea l to  th e  S u p rem e C ou rt o f  a th ree-ju d g e  
co u rt’s ru ling o n  th e  m erits, n e ith e r  28  U .S .C . s 1253  n o r  th e  
S u p rem e C o u rt’s narrow in g g lo ss  su ggest th at th e  S u p rem e  
C ou rt restra in  from  a lso  con sid er in g  in ter locu tory  ord ers  
p rop erly  a p p e a le d . W e  u n d erstan d  th e  S u p rem e C ou rt as  
in d ica tin g  th a t w h en  p rese n ted  as a part o f  th e  a p p ea l o f  th e  
ju d g m en t o n  th e  m erits by th e  th ree-ju d g e  cou rt it w ill 
co n s id e r  o th e r  ru lings an d  ord ers o f  th e  trial cou rt. 9 W e  
are p ersu a d ed  th at w e  h ave n o  ju r isd ic tion  o f  a m a tter

7The terminology for a commanding precedent, factually on all 
fours, varies, being referred to as a "Goose" case in Louisiana, a 
"Spotted Horse" or "Spotted Dog" case in Alabama, a "Cow” case in 
Kansas, and a "White Horse" or "White Pony" case in Texas. Jefferson 
v. Ysleta Independent School D ist., 817 F.2d 303, 305 n. 1 (5th 
Cir.1987).

B en so n  v. Beens, 456 F.2d 244 (8th Cir.1972).

9See M itchell v. D onovan, 398 U.S. 427, 90 S.Ct. 1763, 26 L.Ed.2d 
378 (1970) (a direct appeal which includes "only a declaratory 
judgment" is unreviewable) (emphasis added); Rockefeller v. Catholic 
M edical Center o f  Brooklyn &. Queens, Inc., 397 U.S. 820, 90 S.Ct. 
1517, 25 L.Ed.2d 806 (1970) ("The judgment appealed from does not 
include an order granting or denying an interlocutory or permanent 
injunction and is therefore not appealable to this Court under 28 
U.S.C. s 1253.") (emphasis added). The Supreme Court’s language 
strongly implies that it would accept an appeal of some matter by 
itself normally unreviewable on direct appeal if that appeal is 
included in an appeal from an injunctive order.



42a

p rop erly  o n  a p p ea l b e fo r e  th e  S u p rem e C o u rt.10

W h en  th e  in stan t a p p ea l w a s  n o tic e d  th e  th ree-ju d g e  
co u rt h ad  n o t issu ed  its final ju d g m en t o n  th e  m erits. B u t  
b e fo r e  th is  cou rt co u ld  a d d ress  th e  a p p e a l w h ich , w h en  
n o tic e d , v ery  lik e ly  w a s p rop erly  b e fo r e  u s, th e  trial cou rt  
ru led  o n  th e  m erits  an d  an  a p p ea l w a s  lo d g e d  th e r e o n  w ith  
th e  S u p rem e C ou rt. W ith  th a t lo d g in g  o u r  a p p e lla te  
ju r isd ic tion  w a s im p acted . W er e  w e  to  ru le o th er w ise  ou r  
d e c is io n  o n  th e  m erits o f  th e  in terv en tio n  o rd er  co u ld  cast 
a sh a d o w  o r  im p in ge  u p o n  th e  S u p rem e C o u rt’s fu n ction in g . 
A s  a lo w er  fed era l cou rt w e  h a v e  n e ith e r  th e  au th o rity  n or  
in c lin a tio n  to  d o  so .

W e c o n c lu d e  th a t w e  lack  a p p e lla te  ju r isd ic tio n  o v er  
th e  a p p ea l o f  th e  d en ia l o f  in terv en tio n  to  th e  a p p e lla n ts  
h ere in  an d , accord in gly , th e ir  a p p ea l is D IS M IS S E D .

1028 U.S.C. s 1291 ("The courts of appeals ... shall have 
jurisdiction of appeals from all final decisions of the district courts ... 
except where a direct review may be had in the Supreme Court.").



43a

[F iled  D e c e m b e r  28 , 1993] 

R a y  H A Y S , e t a l., P la in tiffs ,

APPENDIX F

v.

S T A T E  O F  L O U IS IA N A , e t a l., D e fe n d a n ts .  

N o . 9 2 -C V -1 5 2 2 .

U n ite d  S ta te s  D istr ic t C ourt, 
W .D . L ou isian a , 

S h revep ort D iv is io n .

B e fo r e  W IE N E R , C ircuit Ju d ge , S H A W , C h ie f  D istr ic t  
Ju d ge , an d  W A L T E R , D istr ic t Ju d ge .

M E M O R A N D U M  O P IN IO N

W IE N E R , C ircuit Judge:

P la in tiffs  R a y  H ays, e t  al. (P la in tiffs ) c h a lle n g e  th e  
co n g ress io n a l red istr ic tin g  p lan  (th e  P la n ) a d o p te d  by th e  
L o u is ia n a  S ta te  L eg isla tu re  (th e  L eg is la tu re) w h en , fo llo w in g  
th e  1990  cen su s, it en a c te d  A c t 42  o f  1992  (A c t 4 2 ) .1 In  its

‘A technical distinction can be drawn between the terms 
"apportionment" and "reapportionment," on the one hand, and 
"districting" and "redistricting" on the other:

apportionm ent and reapportionm ent involve the 
allocation [by Congress] of a finite number of 
representatives among a fixed number of 
pre-established areas. D istricting and redistricting ... 
refer to the process by which the lines separating



44a

p resen t p o stu re , th is  c a se  co n sid e rs  th e  co n stitu tio n a lity  o f  
th e  P lan , a d m itted ly  d es ig n e d  inter alia t o  in c rea se  th e  
n u m b er  o f  b lack  rep r esen ta tiv e s  in  L o u is ia n a ’s co n g re ss io n a l 
d e le g a tio n  from  o n e  ou t o f  e ig h t to  tw o  o u t o f  se v e n . T h e  
P la in tiffs  insist th at th e  P lan  a cc o m p lish es  th is  resu lt by 
em p lo y in g  im p erm issib le  racial gerrym an d erin g  to  c r e a te  a 
n ew  m ajority-b lack  v o tin g  d istrict, th ereb y  v io la tin g  th e  
E q u a l P ro te c t io n  C la u se  o f  th e  U n ite d  S ta te s  C o n stitu tio n .

In  s im p lest form , th is c a se  p o se s  th e  q u e stio n , " D o es  
a s ta te  h a v e  th e  right to  c r e a te  a  racial m ajority -m in ority  
c o n g re ss io n a l d istrict by racial gerrym andering?" In  s im p lest  
form , th e  an sw er--largely  su p p lied  by th e  U n ite d  S ta te s  
S u p rem e C o u rt’s o p in io n  in Shaw v. Reno* 2, r e n d er ed  durin g  
th e  p e n d e n c y  o f  th is  c a s e ~ is  "Y es, but o n ly  i f  th e  s ta te  d o e s  
it right.”

F in d in g  th at th e  P lan  in g en era l an d  L o u is ia n a ’s 
C o n g ress io n a l D istr ic t 4  in p articu lar are  p rod u cts  o f  racial 
g e n y m a n d e r in g  an d  are not narrow ly ta ilo re d  to  fu rth er  any  
c o m p e llin g  g o v ern m en ta l in terest, w e  c o n c lu d e  th a t th e  
L eg is la tu re  d id  n o t "do it right." W e h o ld , th e r e fo r e , th at 
P la in t if fs ’ right to  eq u a l p ro te c tio n  as g u a ra n tee d  by th e  
U n ite d  S ta te s  C o n stitu tio n  is v io la te d  by th e  P lan . 
C o n seq u e n tly , w e  d ec la re  A c t 4 2  o f  1992  to  b e  
u n c o n stitu tio n a l an d  th e  red istr ic tin g  p lan  e m b o d ie d  th er e in  
to  b e  null an d  void ; en jo in  th e  S ta te  o f  L o u is ia n a  from  
h o ld in g  any fu tu re co n g ress io n a l e le c t io n s  b a sed  o n  th e  P lan; 
an d , a lth o u g h  w e  d o  n o t in v a lid a te  th e  1992  co n g re ss io n a l

legislative districts are drawn [by states].

See M ajor v. Treen, 574 F.Supp. 325, 328 (E.D.La.1983) (quoting 
Backstrom et al., Issues in Gerrymandering: A n  Exploratory M easure 
o f  Partisan Gerrym andering A pp lied  to  M innesota, 62 Minn.L.Rev. 
1121, 1121 n. 1 (1978). For simplicity, however, we use both terms 
interchangeably.

2Shaw  v. R eno, 508 U.S. — , 113 S.Ct. 2816, 125 L.Ed.2d 511 
(1993).



45a

e le c tio n s  h e ld  th ereu n d er , h o ld  th at th e  term  o f  o ff ic e  o f  
each  m e m b er  o f  th e  U n ite d  S ta te s  H o u se  o f  R e p r e se n ta tiv e s  
from  L o u is ia n a  w h o  rep resen ts  a  d istrict cr e a te d  u n d er  th e  
P lan  sh a ll exp ire , ipso facto, at n o o n  o n  th e  3rd  day o f  
January, 199 5 ,3 such  term s o f  o ff ic e  n o t to  b e  e x te n d e d  or  
carried  o v e r  in to  th e  n ext C o n g ress  in  any m a n n er  
w h a tso ev er .

I
S T A T E M E N T  O F  T H E  C A S E

T h e  P lan  co m p r ises  five  m ajority-w h ite d istricts  
(D istr ic ts  1, 3 , 5 , 6 &  7 ) an d  tw o  m ajority-b lack  d istricts  
(D istr ic ts  2 an d  4 ) .4 D istr ic t 2  h as a m in ority  v o tin g  a ge  
p o p u la tio n  o f  56% , w h ile  D istr ic t 4  h as a m in ority  v o tin g  a ge  
p o p u la tio n  o f  63% . N e w  D istr ic t 2  co v ers  e sse n tia lly  th e  
sa m e g eo g ra p h ic  a rea  as d id  o ld  D istr ic t 2 in th e  p rev iou s  
plan: a lm o st th e  en tire  p o p u la tio n  o f  O rlea n s  P arish  and  
rou gh ly  o n e-th ird  o f  th e  p o p u la tio n  o f  J e ffer so n  P arish . 
D istr ic t 2 is n o t ch a llen g ed  in th e  in stan t law su it, n or  
e lse w h e r e  to  o u r  k n o w led g e . R a th er , D istr ic t 4 , a p p earin g  
fo r  th e  first t im e  in A c t 42 , is th e  prim ary fo cu s o f  th is  
co n stitu tio n a l ch a llen g e .

S h ortly  a fter  th e  en a c tm en t o f  A c t 4 2 , th e  P la in tiffs  
f iled  th is  su it see k in g  to  h ave 1) th e  P lan  d ec la red  u nlaw ful, 
2 ) th e  D e fe n d a n ts  en jo in ed  from  u sin g  th e  P lan  in th e  
im p en d in g  co n g ress io n a l e le c tio n s , 3 )  th e  L eg isla tu re  
o rd ered  to  cr e a te  a n ew  p lan  that w ou ld  n ot seg r eg a te  sta te  
resid en ts  in to  v o tin g  d istricts o n  th e  b asis o f  race, an d  4 )  th e  
D e fe n d a n ts  p relim in arily  en jo in ed  "from tak in g  any a ctio n  in 
p rep a ra tio n  for  th e  prim ary or g en era l e le c t io n s  fo r  th e  U .S . 
H o u se  o f  R ep resen ta tives...."  In  th e ir  co m p la in t th e  
P la in tiffs—w h o  are b lack , w h ite , an d  A sia n  resid en ts  o f  e ith er  * *

3See U.S. Const, amend. XX, s 1.

*See Table, Appendix A



46a

D istr ic t 4  o r  D istr ic t 5 — a lle g e  th at th e  P la n  v io la te s  S e c t io n  
3  o f  th e  L o u is ia n a  S ta te  C o n stitu tio n , S e c t io n  2  o f  th e  
V o tin g  R ig h ts  A c t, an d  th e  F ifth , F o u r te e n th  a n d  F ifte e n th  
A m e n d m e n ts  o f  th e  U n ite d  S ta te s  C o n stitu tio n .

A s  req u ired  by th e  V o tin g  R ig h ts  A c t, th e  c h ie f  ju d g e  
o f  th e  U n ite d  S ta te s  C ou rt o f  A p p e a ls  fo r  th e  F ifth  Ju d icia l 
C ircu it a p p o in ted  th e  in stant p a n e l to  h ea r  th is  ca se . It w a s  
tr ied  on  A u g u st 2 6  an d  27 , 1992  (th e  T r ia l). A t  th e  
co n c lu s io n  o f  th e  T ria l, w e  issu ed  an  in ter lo cu to ry  
M e m o ra n d u m  R u lin g  an d  O rd er  ( th e  1992  O rd er ) in  w h ich  
w e  d e n ie d  P la in tiffs ’ req u est fo r  an  in ju n ction , a llo w e d  th e  
1992  C o n g ress io n a l e le c t io n s  to  g o  forw ard  u n d er  th e  P lan , 
re fu sed  to  c o n s id e r  P la in tiffs ’ s ta te  an d  fe d e ra l co n stitu tio n a l  
c la im s, an d  to o k  P la in tiffs ’ V o tin g  R ig h ts  A c t c la im s u n d er  
a d v ise m en t. W e  a lso  r e q u ested  p ost-tr ia l b r ie fin g  o n  th e  
q u e stio n  w h e th e r  th e  P lan  d ilu te s  th e  v o tin g  stren g th  o f  
e ith e r  b lack s o r  w h ite s  in co n tr a v en tio n  o f  th e  V o tin g  R ig h ts  
A c t.

B e in g  aw are o f  an  esse n tia lly  id en tica l c a se  
orig in a tin g  in N o r th  C aro lin a -- n o w  k n ow n  as Shaw v. 
Reno—w hich  h ad  p rogressed  fu rth er th an  h ad  th e  in stan t  
c a se , w e  h e ld  th is o n e  u n d er  su b m ission  u ntil th e  resu lts  o f  
Shaw b e c a m e  k n ow n . O n  J u n e  2 9 ,1 9 9 3 ,  th e  S u p rem e C ou rt 
ren d ered  its d ec is io n  in Shaw, p ro fou n d ly  a ffe c tin g  th is  c a se  
an d  sim ilar  o n e s  p en d in g  in o th e r  sta te s . W e  re q u e ste d  th e  
p a rties  an d  in v ited  am ici cu riae  to  file  su p p lem e n ta l b riefs, 
gen era lly  d iscu ssin g  th e  im p lica tio n s o f  Shaw an d  sp ec ifica lly  
a d d ressin g  w h e th e r —in th e  term in o lo g y  o f  Shaw—th e  P lan  
w a s "narrowly ta ilo re d  to  fu rther a  c o m p e llin g  g o v er n m en t  
in terest."  In  A u g u st 1993 , w e  h e ld  tw o  a d d itio n a l d ays o f  
trial ( th e  E v id en tiary  H ea r in g ) to  assist us in  d ete rm in in g  
w h e th e r  th e  P lan  is in fact th e  p rod u ct o f  racial 
gerrym an d erin g , an d , i f  so , w h e th e r  it sh o u ld  n o n e th e le s s  b e  
su sta in e d  b e c a u se  it is narrow ly ta ilo re d  to  fu rth er a 
c o m p e llin g  s ta te  in terest.



47a

II
P R E L IM IN A R Y  L E G A L  M A T T E R S  

A . Standing

E arly  in  th is  c a se  D e fe n d a n ts  su g g ested  th a t th e  
w h ite  P la in tiffs  in trin sica lly  lack  sta n d in g  to  ch a lle n g e  th e  
P lan . T h e  D e fe n d a n ts  ev id en tly  b e lie v e  th at o n ly  h istorica lly  
d isa d v a n ta g ed  m in o r ities  h ave stan d in g  to  a ttack  sta te  law s  
th a t se g r e g a te  c itiz en s  o n  th e  b asis o f  race. B u t th a t is n ot  
th e  ca se .

In  Shaw, th e  S u p rem e C ou rt rea ffirm ed  th e  
im p ortan t p r in c ip le  "that eq u a l p ro te c tio n  an a lysis  is n o t  
d e p en d a n t o n  th e  race o f  th o se  b e n e fite d  o r  b u r d e n e d  by a 
p articu lar c lassification ."5 "The g u a ra n tee s  o f  th e  
F o u r te e n th  A m e n d m e n t ex ten d  to  all p erson s. Its  la n gu age  
is exp licit: ’N o  sta te  shall ... d en y  to  any person w ith in  its 
ju risd ic tion  th e  eq u a l p ro te c tio n  o f  th e  law s.’ T h e  g u a ra n tee  
o f  eq u a l p ro te c tio n  ca n n o t m ea n  o n e  th in g  w h en  a p p lied  to  
o n e  ind iv idu al an d  so m e th in g  e ls e  w h en  a p p lied  to  a p erson  
o f  a n o th e r  co lo r . I f  b o th  are  n o t a cco rd ed  th e  sa m e  
p ro te c tio n , th e n  it is n o t equal."6 W h ite  c itiz en s  th u s c lear ly  
h a v e sta n d in g  to  ch a llen g e  red istr ic tin g  p lan s u n d er  th e  
E q u a l P ro te c t io n  C la u se  o f  th e  F o u rte en th  A m e n d m e n t, just 
as d o  b lack  c itizen s, H isp a n ic  c itizen s, A s ia n  c itizen s, N a tiv e

5Id. 508 U.S. at — , 113 S.Ct. at 2829, 125 L.Ed.2d at 531 (citing 
R ichm ond v. J A . Croson C o., 488 U.S. 469, 494, 109 S.Ct. 706, 722, 
102 L.Ed.2d 854 (1989) (internal quotations omitted).

6Regents o f  the Univ. o f  CaL v. Bakke, 438 U.S. 265, 290-91, 98 
S.Ct. 2733, 2748, 57 L.Ed.2d 750 (1978). Indeed, laws that entail 
overt racial classifications are subject to strict scrutiny, even when 
they burden or benefit different races equally. See, e.g., Powers v. 
O hio, 499 U.S. 400, 111 S.Ct. 1364,113 L.Ed.2d 411 (1991). "[Rjacial 
classifications do not become legitimate on the assumption that all 
persons suffer them in equal degree." Powers, 499 U.S. at 410, 111 
S.Ct. at 1370, 113 L.Ed.2d at 425.



48a

A m e r ic a n  c itiz en s, an d  c itiz en s  o f  an y  o th e r  race . W e  reject 
o u t o f  h an d  th e  im p lica tio n  th a t, a lth o u g h  a ll are  eq u a l  
u n d er  th e  law , "som e ... are m o r e  eq u a l th an  others."7

B . Survival o f Plaintiffs’ Equal Protection Claim

T h e  D e fe n d a n ts  a ssert th a t th e  P la in t if fs ’ eq u a l  
p r o te c tio n  c la im  d o e s  n o t c o n fo r m  to  th e  stru ctu re o f  th e  
a rg u m en t a p p ro v ed  by th e  C ou rt in  Shaw an d , co n seq u en tly , 
th a t th e  P la in tiffs  fa il to  s ta te  an  eq u a l p r o te c tio n  c la im  
u n d er  Shaw. T h e  D e fe n d a n ts  a lso  argu e th a t o u r  1992  
O rd er, in w h ich  w e  d e n ie d  P la in tiffs ’ s ta te  an d  fe d e ra l 
co n stitu tio n a l c la im s, e ffe c tiv e ly  d isp o sed  o f  th e  P la in t if fs ’ 
E q u a l P r o te c t io n  C la u se  c la im  w ith  finality; an d  th a t w e  
th e r e fo r e  m ay  o n ly  c o n sid e r  th e  P la in tiffs ’ c la im  th a t th e  
P lan  v io la te s  th e  V o tin g  R ig h ts  A c t. W e  d isa g ree  w ith  b o th  
o f  th e se  a sser tio n s.

A lth o u g h  Shaw h ad  n o t y e t b e e n  d e c id e d  at th e  tim e  
th e  P la in tiffs  in itia ted  th e  in stant su it, th e  a lle g a tio n s  in  th e  
P la in tiffs ’ c o m p la in t are c lear ly  su ffic ien t to  m a k e  o u t a 
co g n iza b le  c la im  o f  racial gerrym an d erin g  u n d er  Shaw. T h e  
n arrow  h o ld in g  o f  Shaw is th at a c itiz en  s ta te s  a c la im  u n d er  
th e  E q u a l P r o tec tio n  C la u se  by a lleg in g  th a t th e  
rea p p o rtio n m e n t sc h e m e  a d o p te d  by h is  s ta te  is so  irrational 
o n  its fa c e , s o  b izarrely  sh a p ed  an d  co n v o lu te d , "that it ca n  
o n ly  b e  u n d er sto o d  as an  e ffo rt to  se g r e g a te  v o te r s  in to  
sep a ra te  v o tin g  d istricts b e c a u se  o f  th e ir  race...."8 T h e r e  is 
n o  q u e stio n  th a t th e  P la in tiffs  m a k e  su ch  a lle g a tio n s  in  th e ir  
co m p la in t.

F o r  ex a m p le , th e  P la in tiffs  a lle g e  th a t "[t]he a d o p tio n

7George Orwell, Animal Farm 123 (Penguin Books 1972) (1946).

sShaw, 508 U.S. at — , 113 S.Ct. at 2832, 125 L.Ed.2d at 536 
(indicating that irregular shapes may imply impermissible racial
gerrymandering). See also id . a t .............~, 113 S.Ct. at 2826-27,
528-29.



49a

o f  A c t  4 2  ... h as re su lted  in th e  cr ea tio n  o f  at lea st tw o  o f  
sev en  d istricts w h ich  are d ev o id  o f  any c o m m o n a lity  o f  
in terest ... g eo g ra p h ica l co m p a c tn ess , c o n tig u o u sn e ss  [sic], 
co n sisten cy  w ith  ex istin g  p o litica l, so c ie ta l, g o v ern m en ta l or  
e c o n o m ic  d istricts o r  ju risd iction a l b o u n d a ries , o th e r  th an  
th e  racial d es ig n a tio n  o f  th e  m ajority  therein." S im ilarly, th e  
p la in tiffs  a lle g e  th a t "Act 4 2  cr e a te d  tw o  a m o rp h o u s d istricts  
w h ich  em b o d y  a sch em e  fo r  seg r eg a tio n  o f  v o te r s  by race in  
o rd er to  m e e t  a racial q u o ta  for  r e p r esen ta tio n  o f  th e  S ta te  
o f  L o u is ia n a  in th e  U n ite d  S ta te s  H o u s e  o f  R ep resen ta tives."  
A n d  aga in , P la in tiffs  a lle g e  th a t "[t]he d e fe n d a n ts  en a c te d  
an d  in ten d  to  im p lem en t A c t 42  w ith  th e  in ten t to  c r e a te  a 
C o n g ress io n a l P la n  co n ce n tra tin g  v o te rs  o f  a p articu lar race  
in  d es ig n a ted  districts...." W e  find  th at th e se  s ta te m e n ts  
clear ly  a m o u n t to  a lleg a tio n s  th at th e  S ta te  o f  L o u is ia n a  
"ad op ted  a rea p p o rtio n m en t sch em e  so  irrational o n  its fa ce  
th at it ca n  b e  u n d er sto o d  on ly  as an  e ffo rt to  seg r eg a te  
v o te r s  in to  sep a ra te  v o tin g  d istricts b e c a u se  o f  th e ir  race."9 
W e  c o n c lu d e  th at th e  P la in tiffs  h a v e  sta te d  an  E q u a l 
P r o te c t io n  C la u se  c la im  essen tia lly  id en tica l to  th e  c la im  
a lle g e d  by th e  p la in tiffs  in  Shaw.

M o r eo v er , ou r 1992  O rd er, d en y in g  P la in tiffs ’ s ta te  
an d  fe d e ra l co n stitu tio n  c la im s, w o rk ed  a te m p o r a iy  
d ism issa l o f  P la in tiffs ’ eq u a l p ro te c tio n  c la im , n o t a final 
o n e . It w a s c lear ly  an  in te r lo c u to iy  ruling.

In  an  o rd er  d a ted  Ju n e 2 9 , 1993  (1 9 9 3  O rd er) w e  
re q u e ste d  su p p lem en ta l b r ie fin g  to  clarify  th e  r e le v a n c e  o f  
Shaw t o  th e  in stan t c a se  an d  to  ap p ea r  at th e  E v id en tiary  
H ea r in g  to  e lu c id a te  w h e th e r  th e  P lan  w a s "narrowly ta ilo re d  
to  fu rth er a  c o m p e llin g  g o v ern m en t interest,"  as req u ired  by  
th e  C ou rt in  Shaw. O f  n ece ss ity  ou r 1993  O rd er  m o d ified  
ou r 1992  O rd er  an d  reactiva ted  th e  P la in tiffs ’ eq u a l 
p r o te c tio n  c la im  in light o f  Shaw. A s  su ch  a resu sc ita tio n  is 
sp ecifica lly  c o n te m p la te d  an d  au th o r ized  by R u le  5 4 (b )  o f

9Shaw, 508 U.S. at — , 113 S.Ct. at 2832, 125 L.Ed.2d at 536.



50a

th e  F e d e r a l R u le s  o f  C ivil P r o c e d u r e ,10 th e  P la in t if fs ’ eq u a l  
p r o te c tio n  c la im  p ersists  an d  d em a n d s a d ju d ica tio n  b y  th is  
cou rt.

I l l
F I N D I N G S  O F  F A C T  A N D  C O N C L U S IO N S  O F  L A W

A s th e  fin d in gs o f  fact an d  co n c lu s io n s  o f  law  in  th is  
c a se  are in extricab ly  in tertw in ed , w e  d o  n o t p rese n t th e m  in  
sep a ra te  se c tio n s . S u ch  sep a ra te  p r e se n ta tio n  w o u ld  
in crea se  th e  len g th  an d  red u n d an cy  o f  o u r  d iscu ssio n . 
R a th er , o u r  la n g u a g e  w ill in d ica te  w h e th e r  w e  fin d  a  
p articu lar o b serv a tio n  to  b e  a  fin d in g  o f  fac t o r  a co n c lu s io n  
o f  law . T o  th e  ex ten t th at a fin d in g  o f  fact is a lso  a  
co n c lu s io n  o f  law , w e  a d o p t it a s b o th  a fin d in g  o f  fac t an d  
a co n c lu s io n  o f  law . T o  th e  ex ten t th a t a  co n c lu s io n  o f  law  
is a lso  a fin d in g  o f  fact, w e  a lso  em b r a ce  it a s b o th  a  
co n c lu s io n  o f  law  an d  a fin d in g  o f  fact.

A . Racial Gerrymandering: General

P la in tiffs  a lle g e  th a t th e  P lan  is a p rod u ct o f  racial 
gerrym an d erin g . C o n seq u e n tly , a s n o te d  a b o v e , th is c a se  fa lls  
sq u arely  w ith in  th e  am b it o f  Shaw v. Reno. In  Shaw, th e  
C ou rt h e ld  th at p la in tiffs  s ta te  a ju stic ia b le  c la im  u n d er  th e  
E q u a l P r o te c t io n  C la u se  by a lleg in g  th at a red istr ic tin g  
sc h e m e  is "so irrational o n  its fa c e  th at it ca n  b e  u n d er sto o d  
o n ly  as an  e ffo r t to  se g r e g a te  v o te r s  in to  sep a ra te  v o tin g

10Rule 54(b) of the Federal Rules of Civil Procedure reads in 
pertinent part: "[A]ny order or other form of decision, however 
designated, which adjudicates fewer than all the claims ... shall not 
terminate the action as to any of the claims ... and the order ... is 
subject to revision at any time before the entry of judgment 
adjudicating all the claims ..." Fed.R.Civ.P. 54(b).



51a

districts b e c a u se  o f  th e ir  race.... u " A s  Shaw w a s  an  a p p ea l 
o f  th e  d istrict c o u r t’s d ism issa l o f  th e  p la in tiffs ’ c a se  for  
fa ilu re to  s ta te  a c la im , h o w ev er , th e  C ou rt d id  n o t h a v e  to  
reso lv e  th a t cla im ; it h ad  o n ly  to  r e co g n iz e  it. T h u s, th e  
road m ap  sk e tc h e d  by th e  C o u r t - a s  h e lp fu l as it i s - le a v e s  
so m e  q u e stio n s  to  b e  an sw ered  in c a se s  such  as th is.

1. Racial Gerrymandering Defined

A  leg is la tu re  cr e a te s  a rac ia lly -gerrym and ered  
d istr ictin g  p lan  w h en  it intentionally draw s o n e  o r  m o re  
d istricts a lo n g  racial l in e s  o r  o th erw ise  in ten tio n a lly  
se g r e g a te s  c itiz en s  in to  v o tin g  d istricts b a sed  o n  th eir  
ra ce .12 T h u s, "racial gerrym andering" re fers to  th e  
intentional, n o t th e  acc id en ta l, seg r eg a tio n  o f  v o te r s  o n  th e  
b a sis  o f  ra c e .13

nShaw  v. R eno, 508 U.S. at — , 113 S.Ct. at 2832, 125 L.Ed.2d. 
at 536.

nSee, e.g., Wright v. Rockefeller, 376 U.S. 52, 66-67, 84 S.Ct. 603, 
610-11,11 L.Ed.2d 512 (1964) (in which the Court examined whether 
the plaintiffs had sustained their burden of proving "that the New 
York legislature was either motivated by racial considerations or in 
fact drew districts on racial lines"). See also Shaw, 508 U.S. — , 113 
S.Ct. 2816, 125 L.Ed.2d 511 (in which "racially gerrymandering" and 
"intentional segregation of voters into separate voting districts" are 
used interchangeably throughout).

I3For example, if a legislature devises a redistricting plan that 
separates river districts from mountain districts, and more blacks 
happen to live along the rivers, and more whites happen to live in the 
mountains, then the plan is not a product of racial gerrymandering, 
even though it entails some coincidental segregation. In short, de  
fa c to  or accidental segregation is not constitutionally suspect, but 
state-sponsored intentional segregation is, irrespective of the 
legislature’s underlying motives.



52a

2 . Racially Gerrymandered Plans are Subject to Strict
Scrutiny

T h e  b ed ro ck  p rin c ip le  u n d erly in g  th e  C o u rt’s d e c is io n  
in  Shaw is  th a t racially  gerrym an d ered  red istr ic tin g  p la n s  are  
su b ject to  th e  sa m e  strict scrutin y  th a t a p p lie s  to  o th e r  sta te  
le g is la tio n  c la ssify in g  c it iz e n s  o n  th e  b a sis  o f  ra c e .14 A s  
su ch , racia lly  gerrym an d ered  p la n s  v io la te  th e  E q u a l 
P r o te c t io n  C la u se  o f  th e  F o u r te e n th  A m e n d m e n t u n le ss  th ey  
are n arrow ly ta ilo re d  to  fu rth er a c o m p e llin g  g o v er n m en ta l 
in te r e st.15

S uch  p lan s re ce iv e  "careful scrutin y  u n d er  th e  E q u a l 
P r o te c t io n  C la u se  regard less o f  th e  m o tiv a tio n s  u n d erly in g  
th e ir  ad op tion ." 16 T h is  in te n se  scrutin y  is ju stified  by th e

"Shaw  v. R eno, 508 U.S. — , 113 S.Ct. 2816, 125 L.Ed.2d 511; 
accord City o f  M obile v. B olden, 446 U.S. 55, 67,100 S.Ct. 1490,1499, 
64 L.Ed.2d 47 (1980) (indicating that claims of racial discrimination 
in the reapportionment context are resolved in the same way as other 
claims of racial discrimination); Washington v. D avis, 426 U.S. 229, 
240, % S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976) (referring to Wright 
v. Rockefeller, 376 U.S. at 58, 84 S.Ct. at 606, and pointing out that 
every member of the Court believed that plaintiffs stated a claim by 
alleging that "boundaries were purposefully drawn on racial lines"). 
In its supplemental brief to this court, the United States (which 
entered this case as amicus curiae) agrees that racially gerrymandered 
redistricting plans must be strictly scrutinized.

15See Shaw, 508 U.S. at — 113 S.Ct. at 2826,125 L.Ed.2d at 528.

i6Id . at — , 113 S.Ct. at 2826, 125 L.Ed.2d at 527. Thus, even if 
benign or benevolent motives underlie a legislature’s decision to 
racially gerrymander a redistricting plan, that plan is still subject to 
strict judicial scrutiny. As discussed below, good motives may allow 
a plan to survive strict scrutiny, if they rise to the level of a 
compelling state interest, and if the plan is narrowly tailored to 
further such an interest. But such motives—however unspotted—do 
not automatically exempt the plan from what amounts to a



53a

grave d a n g e r  th at is p o se d  to  ou r co n stitu tio n a l o rd er  an d  
n a tio n a l co m m u n ity  w h en  a sta te  c r e a te s  an d  a d m in isters  
law s b a sed  o n  th e  race o f  its c it iz e n s .17

3. Racial Gerrymandering May be Proved Either
Inferential or Directly

W e h a v e  a lread y  n o te d  th e  n arrow  h o ld in g  o f  Shaw: 
a p la in tiff  m ay  sta te  a c la im  u n d er  th e  E q u a l P ro te c t io n  
C la u se  by a lleg in g  th a t th e  rea p p o rtio n m en t sc h e m e  a d o p te d  
by h is  s ta te  is so  irrational o n  its fa c e  "that it can  o n ly  b e  
u n d er sto o d  as an  effo rt to  seg r eg a te  v o te r s  in to  sep a ra te  
v o tin g  d istricts b e c a u se  o f  th e ir  race...."18 Shaw prim arily  
d ea ls  w ith  th e  p rob lem  o f  p roving  racial gerrym an d erin g  
indirectly o r  inferentially. R a c ia l gerrym an d erin g—says th e  
C ou rt in Shaw—can  b e  in ferred  w h en  d istricts are so  
b izarrely  sh a p ed  th a t th ey  p resu m p tive ly  b e sp e a k  an  
im p erm issib le  p u rp ose .

B u t racial gerrym an d erin g  m ay—a fortiori- a l s o  b e  
p ro v ed  by direct e v id e n c e  th at a leg is la tu re  e n a c te d  a

presumption of unconstitutionality.

17In Wright v. Rockefeller, Justice Douglas discusses the dangers of 
racial gerrymandering. Wright v. Rockefeller, 376 U.S. 52, 66-67, 84 
S.Ct. 603, 610-11 (Douglas, J., dissenting) ("When racial... lines are 
drawn by the State, the multiracial ... communities that our 
Constitution seeks to weld together as one become separatist; 
antagonisms that relate to race ... rather than to political issues are 
generated; communities seek not the best representative but the best 
racial... partisan."). In Shaw, Justice O’Connor echoes these same 
concerns. Shaw, 508 U.S. at — , 113 S.Ct. at 2827, 125 L.Ed.2d. at 
529 (Redistricting plans that segregate citizens primarily on the basis 
of race bear "an uncomfortable resemblance to political apartheid.").

lsShaw, 508 U.S. at — , 113 S.Ct. at 2832,125 L.Ed.2d at 536; see
id. a t............. , 113 S.Ct. at 2826-27,125 L.Ed.2d at 528-29 (indicating
that irregular shapes may reflect impermissible racial 
gerrymandering).



54a

d istr ic tin g  p lan  w ith  th e  sp ec ific  in ten t o f  seg r eg a tin g  c itiz e n s  
in to  v o tin g  d istricts b a sed  o n  th e ir  race. I f  e v e r y o n e ~ o r  
n ea rly  e v e r y o n e —in v o lv ed  in th e  d es ig n  an d  p a ssa g e  o f  a 
red istr ic tin g  p la n  a sser ts  o r  c o n c e d e s  th a t d es ig n  o f  th e  p lan  
w a s d riven  by race, th en  racial gerrym an d erin g  m ay  b e  fo u n d  
w ith o u t reso rtin g  to  th e  in feren tia l a p p roach  a p p ro v ed  by  
th e  C ou rt in  Shaw.19 T h e  C ou rt re co g n iz ed  in Shaw th a t  
"[n]o inquiry in to  leg is la tiv e  p u rp o se  is n e c e s sa iy  w h e n  th e  
racial c la ss ifica tio n  a p p ea rs  o n  th e  fa c e  o f  th e  statu te ."20 
T h e  sa m e is eq u a lly  tru e w h e n  v irtu a lly  u n a n im o u s, 
e sse n tia lly  u n c o n tro v er ted  direct trial e v id e n c e  es ta b lish e s  
racial c la ss ifica tio n , as it d id  h ere . In  th is  c a se , w e  find  
o v erw h elm in g  e v id e n c e —b o th  indirect an d  direct—th at th e  
P lan  is a p rod u ct o f  racial gerrym an d erin g .

4. Intent Distinguished from Motive

In  a b r ie f  a s id e , w e  draw  o n  th e  fam iliar  cr im e o f  
h o m ic id e  as a d id actic  an a lo g y  to  clarify  th e  im p ortan t  
d istin ctio n  b e tw e e n  intent an d  motive for  p u r p o se s  o f  th is  
ca se . B y  d e fin itio n , o n e  w h o  k n ow in g ly  co ck s , a im s, an d  
fire s  a lo a d e d  gu n  at a n o th er  h as th e  intent t o  k ill o r  ca u se  
grea t b o d ily  harm . T h at is th e  purpose for  sh o o tin g . B u t th e  
sh o o te r  m ay  h a v e  any n u m b er o f  m o tiv e s  fo r  in ten tio n a lly  
sh o o tin g  th e  v ictim : to  e lim in a te  a rom an tic  rival; to  c o lle c t  
in su ran ce p ro ceed s; to  a v en g e  so m e  actu a l o r  p er c e iv e d  
w rong; to  rep e l aggression ; to  p rev en t th e  v ic tim  from  
p erp etra tin g  a  cr im e o r  m isd eed ; an d  o n  an d  on . T h e

'9See id . a t .............., — , 113 S.Ct. at 2826-27, 2832, 125 L.Ed.2d
at 528-29, 536 (regardless of how a racial gerrymander is created, it 
should receive strict scrutiny); accord City of M obile v. B olden, 446 
U.S. 55, 67, 100 S.Ct. 1490, 1499, 64 L.Ed.2d 47 (1980).

“ 508 U.S. at — , 113 S.Ct. at 2824, 125 L.Ed.2d at 525 (citing 
Personnel A dm inistrator o f  M assachusetts v. Feeney, 442 U.S. 256, 272, 
99 S.Ct. 2282, 2292, 60 L.Ed.2d 870 (1979)).



55a

ap p lica b le  motive is th e  goal sou gh t to  b e  a cc o m p lish ed  
th rou gh  th e  intentional k illin g  o f  th e  v ictim .
W e b e la b o r  th e  d istin ctio n  b e tw e e n  in ten t an d  m o tiv e  
b e c a u se  it p ro v id es a m o r e  reco g n iza b le  w ay o f  lo o k in g  at 
tw o  sep a ra te  a sp ec ts  o f  th is case : 1 ) th e  intent o f  th e
L eg is la tu re  in  c r ea tin g  th e  P lan  o n  th e  b a sis  o f  race (racia l 
g e n y m a n d e r in g ); 2 )  th e  motives o f  th e  L eg is la tu re  o r  o f  
in d iv id u a l o r  grou p s o f  le g is la to r s -w h e th e r  c o m p e llin g  or  
n o t—fo r  e n g a g in g  in racial gerrym an d erin g . W h a tev e r  th e  
motivations o f  th e  L eg isla tu re  o r  o f  th e  ind iv idu al leg is la to rs  
w h o  p a ssed  th e  P lan , th e  ev id e n c e  overw h elm in g ly  in d ica tes  
th at th e  specific intent o f  th e  L e g is la tu r e -a s  an  in d ep en d en t, 
c o lle c tiv e  o r g a n ism -w a s  in d isp utab ly  to  en a ct a p lan  that 
in c lu d ed  tw o  b lack  an d  five  w h ite  m ajority  d istricts.

A t  th e  E v id en tiary  H ea r in g  so  m u ch  o f  th e  te stim o n y  
p u rp ortin g  to  d iscu ss th e  intent o f  th e  L eg isla tu re , o r  th o se  
w h o  sou gh t to  in flu e n c e  L o u is ia n a ’s 1992  red istr ictin g , 
c o n fo u n d e d  an d  c o n fu se d  in ten t o r  p u rp o se  w ith  motive or  
g oa l. M o r e  te llin g  (an d  m o re  ca n d id ) w as th e  te s tim o n y  at 
th e  T ria l, a y ea r  ear lier , co n cern in g  th e  m o tiv e  fo r  crea tin g  
a se c o n d  m ajority-b lack  co n g ressio n a l d istrict. T h at  
te stim o n y  d iffered  m arked ly  from  its cou n terp art a t th e  
E vid en tiary  H earin g . In  b o th  p ro ce ed in g s  th e  te stim o n y  o n  
m o tiv e  w a s con sid erab ly  le ss  u n iform  th an  w as th e  v irtually  
u n a n im o u s te stim o n y  regard in g  th e  L eg is la tu re ’s intent to  
c r e a te  a se c o n d  sa fe , b lack  m ajority  d istrict. A t  lea st by  
im p lica tio n , h ow ever , fou r  im m u tab le  e le m e n ts  p rov id ed  a 
c o m m o n  p o in t o f  d ep artu re for  all w itn esses: 1 ) L o u isia n a  
h ad  an  u n a v o id a b le  leg a l ob lig a tio n  to  rea p p o rtio n  its  
co n g re ss io n a l d e leg a tio n ; 2 )  rea p p o rtio n m en t h ad  to  b e  in 
strict c o m p lia n ce  w ith  th e  co n stitu tio n a l im p era tive  o f  
o n e-p er so n , o n e -v o te , m e a n in g  th at ea c h  o f  L o u is ia n a ’s 
sev e n  co n g ress io n a l d istricts h ad  to  co n ta in  rou gh ly  6 0 3 ,0 0 0  
resid en ts; 3 )  g iven  its fa ilu re to  a d op t a rea p p o rtio n m en t  
p lan  in 1991 , th e  L eg isla tu re  w ou ld  h a v e  to  a d o p t a p lan  in 
its 1992  se ss io n  th at w ou ld  b e  certa in  to  re ce iv e  im m e d ia te  
p rec le a ra n ce  so  th at th e  con g ress io n a l e le c tio n , sch ed u le d  
fo r  th e  fall o f  th at year, co u ld  b e  h eld ; an d  4 )  to  ob ta in



56a

tim e ly  p rec lea ra n ce , i.e ., v o lu n tar ily  an d  n o t b y  co u rt d e c r e e , 
any plan w ould  have to  include tw o safe, black majority districts.21

21 Even though the Legislature put itself under severe time 
constraints by failing to redistrict in 1991, the United States 
Department of Justice- not a party to this litigation-must be 
regarded as an active player in this case. As Louisiana is covered by 
Section 5 of the Voting Rights Act, the Legislature must either (1) 
have any proposed plan precleared by the Department of Justice, or 
(2) seek a judgment from the United States District Court for the 
District of Columbia declaring that the plan "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...." Voting Rights Act of 1965, 42 
U.S.C. s 1973c. The testimony at the Trial and at the Evidentiary 
Hearing reflected overwhelmingly that the Attorney General’s Office 
(AGO) had let it be known that preclearance would not be 
forthcoming for any plan that did not include at least tw o  "safe" black 
districts out of seven. But neither Section 2, nor Section 5 of the 
Voting Rights Act justifies the AGO’s insistence upon two black 
districts.

To challenge a redistricting plan under Section 2 successfully, 
plaintiffs who are members of a cognizable racial group must 
demonstrate that their group is num erous enough an d geographically 
com pact enough to be a majority in a district. G row e v. E m ison , 507 
U.S. — , — , 113 S.Ct. 1075, 1083, 122 L.Ed.2d 388, 403 (1993) 
(extending the threshold requirements elaborated in Thornburg v. 
Gingles, 478 U.S. 30, 46-47, 106 S.Ct. 2752, 2764, 92 L.Ed.2d 25 
(1986), to single member, as well as multimember, districts). 
Obviously, however, black voters in District 4 do not constitute a 
geographically com pact body as required by Gingles. Neither would any 
district resembling District 4 be geographically compact. 
Consequently, the AGO cannot legitimately claim that Section 2 of 
the Voting Rights compels the creation of any redistricting plan that 
contains a tortured district like District 4. Unless a second 
geographically compact black majority district is possible, the State’s 
failure to create one does not violate Section 2. G row e, 507 U.S. at
—.........., 113 S.Ct. at 1084-85, 122 L.Ed.2d at 404. This is not to say
that Section 2 forbids the creation of such a plan; simply that Section
2 does not require it. Voinovich v. Quilter, 507 U.S. — , ---------- , 113
S.Ct. 1149, 1156-58, 122 L.Ed.2d 500, 513-14 (1993). Consequently, 
the AGO cannot rely on Section 2 of the Voting Rights Act to force



57a

a state to adopt a plan containing an additional majority-minority 
district with a geographically dispersed black majority.

Additionally, Section 2 of the Voting Rights Act expressly 
states that "[njothing in this section establishes a right to have 
members of a protected class elected in numbers equal to their 
proportion in the population." Voting Rights Act of 1965, Section 2, 
42 U.S.C. s 1973. Section 2 refuses to transform the individual right 
to vote into a group right to elect. Thus, Section 2 emphatically does 
not authorize the AGO to reject plans that fafl to "give full effect" to 
minority voters, or otherwise to create a de fa c to  requirement of 
proportional representation by rejecting all plans that fail to maximize 
the concentration of minority voters. The text of Section 2 of the 
Voting Rights Act expressly declares that proportional representation 
is not required. Neither can Section 5 of the Voting Rights Act—on 
the basis of the 1990 Census-justify the AGO’s insistence that 
Louisiana adopt a congressional redistricting plan with two safe, 
black-majority districts. In Beer v. United States, the Supreme Court 
stated that "the purpose of Section 5 has always been to insure that 
no voting-procedure changes would be made that would lead to a 
retrogression in the position of racial minorities with respect to their 
effective exercise of the electoral franchise." Beer v. United States, 425 
U.S. 130, 141, % S.Ct. 1357, 1364, 47 L.Ed.2d 629 (1976) (emphasis 
added); accord Shaw, 508 U.S. at — , 113 S.Ct. at 2830,125 L.Ed.2d 
at 533. In this case, however, a redistricting Plan for the State of 
Louisiana that provided for one black majority district would have 
satisfied the requirement of nonretrogression.

As a result of the 1990 Census, Louisiana lost a seat in the 
United States House of Representatives: previously it had eight 
seats, now it has seven. Thus, even if the Legislature had adopted a 
plan with a single black majority district, that plan would have 
satisfied the Section 5 nonretrogression principle: whereas before 
black majority districts comprised one-eighth of all districts, under a 
new plan with one black majority district, such districts would 
constitute one-seventh of all districts, an increase of nearly two 
percent. Thus, the Section 5 nonretrogTession principle does not, on 
the instant facts, require Louisiana to adopt a redistricting plan with 
a second black-majority district. Any suggestion by the AGO to the 
contrary was incorrect.

In summary, neither Section 2 nor Section 5 of the Voting 
Rights Act justify the AGO’s insistence that Louisiana adopt a plan



58a

with two safe, black majority districts. Yet members of the 
Legislature uniformly believed that they needed to create such a 
redistricting plan to secure preclearance. The letters sent by the 
Office of the Assistant Attorney General (AAGO) in response to 
redistricting plans for the Louisiana Senate and the Board of 
Elementary and Secondary Education (BESE) show how Louisiana 
legislators got this mistaken impression.

In these letters, the AAGO acknowledged that the plans 
"appealed] to have no retrogressive effect" and met "in large part ... 
Section 5 preclearance requirements." Yet the AAGO refused to 
preclear the plans because-in its apparent judgment—they could have 
been drawn "in a manner that would more effectively provide to black 
voters an equal opportunity ... to elect candidates of their choice," 
there a euphemism for black candidates. But, again, the Voting 
Rights Act does not require that a plan be drawn to maximize the 
efficacy of the black vote, and we perceive the AAGO’s insistence 
upon such a result to be tantamount to an insistence upon 
proportional representation: an insistence that is expressly forbidden 
by Section 2 of the Voting Rights Act.

In one letter the AAGO went so far as to suggest how  the 
plan should be drawn to secure early preclearance by combining 
"significant concentrations of black voters in northeastern Louisiana 
and in the parishes bordering the State of Mississippi, both along the 
river and the state’s southern border." Here—in a nutshell—was a 
blueprint for the highly irregular district known as District 4: a 
district that runs through the length and breadth of the State, a 
district that ignores traditional geographical and political boundaries, 
yet a district that the AAGO inappropriately hinted would have to be 
created if Louisiana was to secure preclearance. What was the 
authority for the AAGO’s insistence? The answer presents itself: 
none.

When State authorities wrote back, explaining the historical, 
cultural, political, economic, and religious significance of the 
north-south divide in Louisiana, as a means of explaining and 
defending its proposed plan, the AAGO dismissed the explanation 
and concluded that lumping black voters together in a district 
"transcends the distinction between northern and southern parishes." 
What was the authority for this judgment: again, none! To reiterate, 
neither Section 2 nor Section 5 of the Voting Rights Act requires that 
geographically dispersed black voters be lumped together to maximize



59a

B . Shaw v. Reno: Inferential Proof o f Racial
Gerrymandering

Shaw d e a ls  prim arily  w ith  p rov in g  racial 
gerrym an d erin g  inferentially. W e  p ro ce ed  to  ex a m in e  th e  
in d irect o r  c ircu m stan tia l e v id e n c e  o f  racial gerrym an d erin g  
in th e  in stan t ca se .

1. The Shifting Evidentiary Burden

T h e  C ou rt in  Shaw ap p aren tly  in ten d e d  to  estab lish  
an ev id en tia ry  "minuet" for  racial gerrym an d erin g  c a se s  
a n a lo g o u s  to  th e  o n e  esta b lish ed  by McDonnell Douglas v.

the efficacy of their vote. That is nothing more than an AAGO 
"gloss" on the Voting Rights Act-a gloss unapproved by Congress and 
unsanctioned by the courts.

The Department of Justice did not conclude that Louisiana’s 
concern with preserving its historic parishes was pretextual; it decided  
that creating black districts trumped traditional redistricting criteria. 
What was the authority for this policy decision? Yet again, none! As 
the AAGO concluded that the State BESE plan was not retrogressive 
with respect to the black vote, it necessarily admitted that the plan 
had no discriminatory effect. See Beer v. United States, 425 U.S. 130, 
140, % S.Ct. 1357, 1363, 47 L.Ed.2d 629, 639. Thus, the AAGO 
could legally reject the plan only if it determined—and presumably for 
non-arbitrary reasons—that the plan reflected discriminatory motives. 
Georgia v. United States, 411 U.S. 526, 93 S.Ct. 1702, 36 L.Ed.2d 472 
(1973). But the AAGO did not so conclude.

Rather, the AAGO arrogated the power to use Section 5 
preclearance as a sword to implement forcibly its own redistricting 
policies, rather than as a shield to prevent lamentable historical 
abuses. The Attorney General’s Office has no authority to withhold 
preclearance for reasons outside the ambit of the Voting Rights Act. 
Indeed, because any plan that entails more racial gerrymandering 
than is absolutely necessary to pass Voting Rights Act muster is 
potentially unconstitutional, Shaw, 508 U.S. at — , 113 S.Ct. at 2831, 
125 L.Ed.2d at 534, the AGO will risk encouraging unconstitutional 
conduct if it pressures states to gerrymander their districts to 
maximize the concentration of minority voters.



60a

Green an d  Texas Department o f Community Affairs v. Burdine 
in  th e  T itle  V II  co n te x t.22 A fte r  a c it iz e n  e s ta b lish e s  a 
ca u se  o f  a c tio n  by a lleg in g  th a t th e  re a p p o rtio n m e n t sc h e m e  
a d o p te d  by h is  s ta te  is so  irration a l o n  its  fa c e  th a t it can  
o n ly  b e  u n d er sto o d  as an  e ffo r t to  se g r e g a te  v o te r s  o n  th e  
b a sis  o f  r a c e -th e r e b y  cr ea tin g  a p resu m p tio n  o f  
u n co n stitu tio n a lity 23 —th e  b u rd en  sh ifts  to  th e  s ta te  to  
p ro ffer  a le g it im a te , n on -racia l e x p la n a tio n  fo r  th e  
irra tion a lly  sh a p ed  d istricts in  its p la n .24 If, p er  c h a n c e , th e  
s ta te  sh o u ld  an sw er, gen era lly  d en y in g  gerrym an d erin g , and  
m o v e  fo r  su m m ary ju d g m en t, th e  p la in tiff  p resu m ab ly  w o u ld  
n e e d  to  su p p ort su ch  a p resu m p tio n  w ith  su m m ary ju d g m en t  
e v id e n c e , e .g ., a ffid av its  an d  d e p o s it io n s  d e m o n stra tin g  
leg is la tiv e  in ten t, v io la tio n  o f  red istr ic tin g  p rin c ip les , o r  th e  
lik e . B u t i f  th e  s ta te  a d v a n ces  a  le g it im a te , n on -racia l

22M cD onnell D ouglas v. G reen, 411 U.S. 792, 93 S.Ct. 1817, 36 
L.Ed.2d 668 (1973); Texas D ep ’t o f  C om m unity Affairs v. Burdine, 450 
U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The three-step 
McDonnell- Douglas-Burdine "minuet" structures the basic allocation 
of burdens and order of presentation of proof in the Title VII 
context. Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093. This minuet 
requires (1) the plaintiff to prove—by a preponderance of the 
evidence-a prima facie case of disparate treatment that contravenes 
Title VII of the Civil Rights Act of 1964, (2) the defendant to proffer 
a legitimate, nondiscriminatory reason for the employee’s rejection, 
and (3) the plaintiff to demonstrate that the defendant’s proffered 
explanation is pretextual. Id. at 253, 101 S.Ct. at 1093. At the end 
of the day, however, the plaintiff has the burden of proving that a 
violation of Title VII occurred. See St. Mary's H onor Center v. H icks, 
509 U.S. — , 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).

™Shaw, 508 U.S. at — , 113 S.Ct. at 2832,125 L.Ed.2d at 536; See
also id. a t ----------- ,113 S.Ct. at 2826-27, 125 L.Ed.2d at 528- 29
(indicating that irregular shapes may imply impermissible racial 
gerrymandering).

u Id.



61a

ex p la n a tio n  fo r  th e  p la n ’s irregularity, th e n  th e  fa c tfin d er  
m u s t - a s  a lw a y s -w e ig h  th e  e v id e n c e  o n  b o th  s id e s  and  
d e c id e  w h e th e r  th e  p la in tiff  h as m e t h is b u rd en  o f  
d em o n stra tin g  th a t th e  p la n ’s irrational sh a p e  r e flec ts  racial 
gerrym an d erin g .25

A lth o u g h  th e  C ou rt in  Shaw d o e s  n o t d iscu ss th e  
re sp ectiv e  b u rd en s b o rn e  by th e  p arties  in  th is  sh iftin g  
p ro to c o l, S u p rem e C ou rt p rec ed en t c lear ly  in d ica tes  that 
p la in tiffs  h a v e  th e  u lt im a te  b u rd en  o f  p roving—by a 
p rep o n d e ra n ce  o f  th e  e v id e n c e - th a t  th e  irregularity  o f  th e  
c h a lle n g e d  d istricts re flec ts  racial gerrym an d erin g .26 P r o o f  
on  th e  m erits w o u ld  lik e ly  fo c u s  o n  th e  p retex t o f  th e  s ta te ’s 
p ro ffere d  n on -d iscr im in atory  reason s. N e v e r th e le ss , p lac in g  
th e  b u rd en  o f  p r o o f  o n  th e  p la in tiffs  re flec ts  a b asic  te n e t  o f  
eq u a l p ro te c tio n  analysis: th er e  can  b e  n o  v io la tio n  o f  th e  
E q u a l P r o te c t io n  C la u se  u n le ss  th o se  w h o  co m p la in  
d em o n stra te  th at th e  sta te  h as en g a g ed  in p u rp osefu l

15See, e.g., Wright, 376 U.S. 52, 84 S.Ct. 603 (in which the Court 
held that the plaintiffs had not "sustained their burden of proving that
... [the plan] ... segregates eligible voters by race and place of origin 
in violation of the Equal Protection and Due Process Clauses...."); 
accord W hitcom b v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 
363 (1971). To clarify this minuet further, if a plaintiff comes into 
court with a map bearing hideously contorted districts and evidence 
that the state legislature drew those districts on the basis of race, and 
if the plaintiff complains that those districts lack a non-racial 
explanation— i.e., cannot be explained or understood without 
hypothesizing racial gerrymandering—then the plaintiff has stated a 
prima facie case under Shaw. If the state then introduces evidence 
that tends to show that the legislature was actuated by other motives 
that can explain the bizarre contours of the districts without resorting 
to race, the state has created a competing inference. The factfinder 
must then decide, on the basis of all available evidence, who is right.



62a

d iscr im in a tio n .27 T h u s, in th is  c a se , P la in tiffs  h a v e  th e  
b u rd en  o f  d em o n stra tin g  by a p r e p o n d e ra n ce  o f  th e  e v id e n c e  
th a t th e  L eg is la tu re  w a s " m otivated  by racial con sid eration s"  
w h e n  it a d o p te d  A c t 4 2 .28 W e  fin d  th a t th e  p la in tiffs  h a v e  
m e t th a t b u r d e n -c o m fo r ta b ly .

2 . Plaintiffs’ Cause o f Action

In  a d d itio n  to  sta tin g  a ca u se  o f  a c tio n  by a lleg in g  
e x trem e  irregularity  o f  sh a p e , a  p la in tiff  m ay, u n d er  Shaw, 
str en g th e n  th e  in fere n c e  th at th e  s ta te  e n g a g e d  in  
c o n s t itu t io n a lly  su sp e c t  ra c ia l g e r r y m a n d e r in g  by  
d em o n stra tin g  th e  s ta te ’s d isregard  o f  tra d itio n a l d istr ictin g  
p rin c ip les .29 A s  d iscu ssed  a b o v e  in se c tio n  II B , th e  
P la in tiffs  h a v e  c lear ly  a lle g e d  b o th  th a t th e  P la n —p articu larly  
D istr ic t 4 —is h igh ly  irregular o n  its fa c e , an d  th a t th e  P lan  
d isregard s trad ition a l d istr ictin g  p rin c ip les .30 W e  th e r e fo r e  
c o n c lu d e  th at th e  P la in tiffs  e sta b lish e d  a ca u se  o f  a c tio n

71 City o f  M obile v. Bolden, 446 U.S. 55, 66, 100 S.Ct. 1490, 1499, 
64 L.Ed.2d 47 (1980) (citing Washington v. D avis, 426 U.S. 229, % 
S.Ct. 2040, 48 L.Ed.2d 597 (1976)); Plaintiffs also have the burden 
of proving the invalidity of a reapportionment plan under Section 2 
of the Voting Rights Act. Voinovich v. Quilter, 507 U.S. — , — , 113 
S.Ct. 1149, 1156, 122 L.Ed.2d 500, 512 (1993).

28Wright, 376 U.S. at 55, 84 S.Ct. at 604.

NShaw, 508 U.S. at — 113 S.Ct. at 2826, 125 L.Ed.2d at 528.

"For example, Plaintiffs allege that "[t]he adoption of Act 42 ... 
has resulted in the creation of at least two of seven districts which are 
devoid of any commonality of interest... geographical compactness, 
contiguousness [sic], consistency with existing political, societal, 
governmental or economic districts or jurisdictional boundaries, other 
than the racial designation of the majority therein." See discussion in 
section II B of this Memorandum Opinion for other examples of 
Plaintiffs’ allegations.



63a

esse n tia lly  id en tica l to  that a lle g e d  by th e  p la in tiffs  in  Shaw. 
It c o n se q u e n tly  d ev o lv ed  u p on  th e  D e fe n d a n ts  e ith e r  to  
r e fu te  th e  a lleg a tio n s  d irectly  o r  to  p rov id e  leg itim a te , 
n o n -ra cia l ex p la n a tio n s  for  th e  P la n ’s irrational sh a p e  an d  its 
d isregard  o f  trad ition a l d istrictin g  cr iteria .31

3 . Defendants’ Proffered Justifications

A p p a ren tly  reco g n iz in g  th e  im p ossib ility  o f  d irectly  
re fu tin g  h igh  irregularity an d  v io la tio n  o f  trad ition a l 
d istr ictin g  criteria , th e  D e fe n d a n ts  a tte m p te d  to  ju stify  th e  
P lan . D u rin g  th e  en tire  T rial, n o t o n e  w itn ess  ev er  
su g g ested  th at th e  L eg is la tu re ’s intent in crea tin g  D istr ic t 4  
w as an yth in g  o th e r  th an  to  cr ea te  a sec o n d  d istrict w ith  a  
su p er-m ajority  o f  b lack  v o te r s  by draw ing its b o u n d a r ies  
a lo n g  racial lin es. In d e ed , m ost o f  th e  te stim o n y  o f  th e  
D e fe n d a n ts ’ w itn e sse s  co n ce rn ed  h o w  n u m erica lly  large a 
b lack  m ajority  w a s n e e d e d  to  en su re  th e  e f fe c t iv e n e s s  o f  th e  
P lan , w h ich  ev ery o n e  c o n c e d e d  to  b e  a p rod u ct o f  racial 
gerrym an d erin g .

A t th e  E v id en tiary  H earin g , h o w ev er , fo llo w in g  as it 
did  o n  th e  h e e ls  o f  th e  S u p rem e C o u rt’s d ec is io n  in Shaw, 
th e  D e fe n d a n ts -w ith  th e  b e n e fit  o f  h in d s ig h t-a tte m p te d  to  
d en y  th e  racial gerrym an d erin g  th at th ey  so  can d id ly  
p ro c la im ed  an d  avidly d e fe n d e d  a yea r  ea r lier  at th e  T rial. 
S p ecifica lly , th e  D e fe n d a n ts  n o w  su ggest th at tw o  n on -racia l 
fac tors p layed  k ey  ro les  in th e  cr ea tio n  o f  th e  P lan: 
p a r t i s a n / in c u m b e n t  p o l i t i c s  a n d  s o c i o e c o n o m ic  
co m m o n a litie s . A s  d iscu ssed  in th e  fo llo w in g  sec tio n , w e

’‘Recalling our pedagogic comparison with homicide, when the 
state attempts to convict a defendant of homicide using circumstantial 
evidence- essentially arguing that the facts are consistent with 
homicide, the defendant may attempt to show that the evidence is 
consistent with a far more innocent hypothesis: for example, an 
accident. The Defendants’ opportunity to provide legitimate, 
non-racial explanations for the Plan’s irrational shape is analogous.



64a

fin d  th e  D e fe n d a n ts ’ ex p la n a tio n s  w h o lly  u n co n v in c in g  an d  
in  m an y  re sp e c ts  d is in g en u o u s.

4. Choosing Between the Competing Inferences

B e c a u se  o f  th e  p roced u ra l p o stu re  o f  Shaw, th e  C ou rt 
did  n o t h a v e  to  g o  b ey o n d  reversin g  th e  d istrict c o u r t’s grant 
o f  th e  d e fe n d a n ts ’ m o tio n  to  d ism iss. F o llo w in g  a fu ll m erits  
tr ia l h ere , h o w ev er , w e  are o b lig ed  to  d e c id e  w h e th e r  th e  
P la in tiffs  h a v e  carried  th e ir  b u rd en  o f  p rov in g—by a  
p rep o n d e ra n ce  o f  th e  e v id e n c e - th a t  th e  P la n ’s irregularity  
an d  its d isregard  o f  trad ition a l red istr ic tin g  p r in c ip les  re flec t  
racial gerrym an d erin g . A s  w e  fin d  th a t th e  only sensible 
e x p la n a tio n  for  th e  P la n ’s ex trem e  fac ia l irregularity  an d  its 
flagran t d ev ia tio n  from  trad ition a l d istr ictin g  cr iteria  is th at 
th e  L eg is la tu re  in ten tio n a lly  seg r eg a te d  v o te r s  in to  
c o n g re ss io n a l d istricts b a sed  o n  th e ir  race, w e  c o n c lu d e  th at 
th e  P la in tiffs  h a v e  o v erw h elm in g ly  sa tis fied  th e ir  b u rd en  o f  
p rov in g  racial gerrym an d erin g .

a. Plaintiffs’ Inferential Evidence

1. The Plan is Highly Irregular

T h e  m o st cursory in sp ec tio n  o f  th e  d istricts  
esta b lish e d  by A c t 42  rev ea ls  severa l o f  th e m  to  b e  irregular, 
an d  D istr ic t 4  to  b e  h igh ly  irregular.32 L ik e  th e  fic tio n a l 
sw ord sm an  Z o rro , w h en  m ak in g  h is sign a tu re m ark, D istr ic t  
4  s la sh e s  a g ian t b u t so m ew h a t shaky "Z" across th e  s ta te , as  
it cu ts  a sw ath  th rou gh  m u ch  o f  L o u is ia n a .33 It b eg in s  
n orth  o f  S h rev ep o rt--in  th e  n o rth w estern  c o m e r  o f  
L o u is ia n a , ju st ea st o f  th e  T e x a s  b o rd er  an d  flush  aga in st th e  
A rk an sas b o rd er—an d  sw ee p s ea st a lo n g  th a t b ord er,

32See Map, Appendix B.

33Id.



65a

p er io d ica lly  ex ten d in g  p seu d o p o d s  sou th w ard  to  e n g u lf  sm all 
p o c k e ts  o f  b lack  v o ters , all th e  w ay  to  th e  M ississ ip p i R iver. 
T h e  d istrict th en  turns so u th  an d  m e a n d er s  d ow n  th e  w est  
b an k  o f  th e  M ississip p i R iv er  in  a n arrow  b an d , g o b b lin g  up  
m o r e  an d  m o r e  b lack  v o te rs  a s it g o e s . A s  it n ea rs B a to n  
R o u g e , th e  d istrict ju ts  abruptly  ea st to  sw allow  
p red o m in a n tly  b lack  p o rtio n s  o f  severa l m o r e  p arish es. 
S im u lta n eo u sly , it h o o k s  in  a n orth w ester ly  arc, 
a p p rop r ia tin g  still m o r e  b lack  v o te rs  o n  its w ay to  
A lex a n d ria , w h ere  it se lec tiv e ly  in c lu d es o n ly  p red o m in a n tly  
b lack  res id en tia l n e ig h b o rh o o d s. F in ally , at its so u th ern  
extrem ity , th e  d istrict ex ten d s y e t a n o th er  p r o je c t io n -th is  
o n e  w estw ard  tow ard s L a fa y e tte—ad d in g  still m o re  
co n c e n tr a tio n s  o f  b lack  resid en ts. O n  th e  b asis o f  D istr ic t  
4 ’s p h ysiogn om y a lo n e , th e  P lan  is th u s h igh ly  irregular, 
su g g estin g  strongly  that th e  L eg isla tu re  en g a g ed  in racial 
gerrym an d erin g .34

2 . The Plan Violates Traditional Redistricting 
Principles

In  Shaw, th e  C ou rt re itera tes  th e  n o tio n  th a t s ta te s  
are n o t co n stitu tio n a lly  required to  a d h ere  to  th e  trad ition a l 
red istr ic tin g  p rin c ip les o f  co m p a ctn ess , con tigu ity , re sp ect for  
esta b lish e d  p o litica l su b d iv ision s, an d  co m m o n a lity  o f  
in terests .35 T h e  C ourt a lso  ob serv es  th a t a s ta te ’s adherence

24See generally Shaw, 508 U.S. — , 113 S.Ct. 2816, 125 L.Ed.2d 
511.

25Shaw, 508 U.S. a t .............., 113 S.Ct. at 2826-27,125 L.Ed.2d at
528-29 (citing Gaffney v. Cummings, 412 U.S. 735, 752, n. 18, 93 S.Ct. 
2321, 2331, n. 18, 37 L.Ed.2d 298 (1973)). The seminal case of M ajor 
v. Treen also discusses these traditional redistricting criteria and 
applies them to the Louisiana context. M ajor v. Treen, 574 F.Supp. 
325 (E.D.La.1983).



66a

to  trad ition a l d istr ictin g  cr iteria  "may serv e  to  d e fe a t  a c la im  
th a t a  d istrict h as b e e n  g errym an d ered  o n  racial lines."36 
Y e t  a  s ta te ’s disregard o f  su ch  criteria , e m p h a s iz e s  th e  Shaw 
o p in io n , m ay b e  e v id e n c e  o f  c o n stitu tio n a lly -su sp ec t racial 
gerrym an d erin g .37

In d e e d , th e  C ou rt in  Shaw re fers  to  a  s itu a tio n  "in 
w h ich  a S ta te  c o n c e n tr a te d  a d isp ersed  m in ority  p o p u la tio n  
in  a s in g le  d istrict b y  d isregard in g  trad ition a l d istr ictin g  
p rin c ip les  ..." as a c ircu m sta n ce  in  w h ich  racial 
gerrym an d erin g  can  b e  ea s ily  in ferred , p rec ise ly  b e c a u se  th e  
sta te  ig n o red  su ch  p rin c ip les .3* * A s  a s ta te ’s d e c is io n  to  
d isregard  trad ition a l red istr ic tin g  cr iteria  is p ro b a tiv e  o f  
co n stitu tio n a lly -su sp ec t racial gerrym an d erin g , w e  c lo se ly  
ex a m in e  th e  P la n ’s a d h e ren ce  (or , m o r e  accu ra te ly , 
n o n -a d h e r e n c e ) to  th o se  p rincip les; an d  w e  fin d  th a t, for  
th e  m o st part, th e  P lan  cava lier ly  d isregard s th em .

a. Compactness

D istr ic t 4  sn a k es  narrow ly across  L o u is ia n a  so il from  
e n d  to  en d  for  m o re  th an  600  m ile s .39 A  recta n g le  
su p e r im p o sed  o n  th e  Z -sh a p e d  figu re fo rm ed  by D istr ic t 4  
w o u ld  o ver lay  tw o-th ird s o f  th e  S ta te . A d d itio n a lly , a s  it 
w in d s a lo n g  its erratic  p ath , D istr ic t 4  p ro jects  m yriad  
d iv erticu la e  to  en ca p su la te  sm all sa cs  o f  o th er w ise  w id e ly  
d isp ersed  b lack  v o ters . N o  o n e  co u ld  c la im  th a t D istr ic t 4  
is co m p a c t, a t lea st n o t w ith  a straight fa ce .

“ Id. 508 U.S. at — , 113 S.Ct. at 2827,125 L.Ed.2d at 529 (citing 
Karcher v. Daggett, 462 U.S. 725, 755, 103 S.Ct. 2653, 2672, 77 
L.Ed.2d 133 (1983)).

s7« .  at — , 113 S.Ct. at 2826, 125 L.Ed.2d at 528.

*Id .

i9See Map, Appendix B.



67a

b. Contiguity

D istr ic t 4  w as c o n fe c te d  to  satisfy  th e  trad ition a l 
d istr ictin g  cr iter ion  o f  con tigu ity , but o n ly  h yp ertech n ica lly  
an d  th u s  cyn ically . W h en  d isp layed  o n  a m ap  o f  th e  S ta te , 
th e  d istr ic t’s b o u n d a r ies  s e e m  severa l t im e s  to  n arrow  to  a 
s in g le  p o in t. T h is  im p ression  re flec ts  reality , fo r  at so m e  
p la c e s  a lo n g  its a tten u a te d  path , D istr ic t 4  is n o  m o r e  th an  
80  fe e t  w id e . S uch  to k en ism  m o ck s th e  trad ition a l cr iter ion  
o f  con tigu ity .40

c. Respect For Political Subdivisions

A s  o n e  w itn ess  ex p la in ed  at th e  E v id en tiary  H earin g , 
th er e  is n o  m o re  fu n d a m en ta l unit o f  so c ie ta l org a n iza tio n  
in  th e  h istory  o f  L ou isian a  th an  th e  p arish .41 W h ere a s  th e  
p rev io u s  con g ress io n a l p lan  d iv id ed  o n ly  sev e n  o f  m o d e m  
L o u is ia n a ’s 64  p arish es, sca tter in g  fraction s o f  th e  sa m e  
p arish  in m o re  th an  o n e  con g ress io n a l d istrict, A c t 4 2  sp lits  
an d  sca tters  28 . D istr ic t 4  is p articu larly  aggressive  in 
v io la tin g  th e  b o u n d a r ies  o f  th e se  trad ition a l p o litica l and  
g o v ern m en ta l u n its o f  th e  S ta te: o f  th e  28  p arish es to u ch ed  
by D istr ic t 4 , o n ly  fou r  w h o le  p arish es are in c lu d ed ; but th e  
d istrict a n n e x es  o n ly  shards o f  2 4  a d d ition a l p arish es, u sually  
in corp ora tin g  n o n e  but th e  p red o m in a n tly  b lack  fragm en ts  
o f  th o se  sh a tter ed  reg ion s. A d d itio n a lly , for  th e  first t im e  in  
L o u is ia n a  history, w ith  th e  ad ven t o f  A c t 42  a d istr ictin g  
p la n  v io la te s  th e  b o u n d a r ies  o f  n early  all m ajor

^In complementary fashion, District 6 maintains contiguity only 
by employing gossamer connections at several junctions.

41A parish is analogous to a county, but it has its roots in, and 
takes its name from, the ministrations of the Catholic Church in early 
Louisiana history.



68a

m u n ic ip a litie s  in  th e  S ta te . W ith  th e  e x c e p tio n  o f  L a k e  
C h arles, th e  P la n  fragm en ts a ll m ajor m u n ic ip a litie s  in to  
m o r e  th an  o n e  co n g re ss io n a l d istrict, th ereb y  d estro y in g  th e  
c o m m o n  r e p r esen ta tio n  h istor ica lly  en jo y e d  by re s id en ts  o f  
th e  sa m e  m u n ic ip a lity .42

d. Commonality o f Interests

W ith in  its irregular b o u n d a r ies , D is tr ic t 4  su b su m es  
b its  o f  every  re lig iou s, e th n ic , e c o n o m ic , so c ia l, an d  
to p o g ra p h ica l typ e  fo u n d  in L o u isia n a .

( i)  Religion and Ethnicity

D istr ic t 4  v io la te s  th e  trad ition a l n o rth -so u th  
e th n o -r e lig io u s  d iv ision  o f  th e  S ta te . A lo n g  its c ircu ito u s  
rou te , th is  n ew  d istrict co m b in e s  E n g lish - S co tch -Ir ish , 
m a in lin e  P ro testa n ts , trad ition a l rural b lack  P ro testa n ts , 
S o u t h  L o u is ia n a  b la c k  C a t h o l i c s ,  C o n t i n e n t a l  
F ren ch -S p a n ish -G erm a n  R o m a n  C a th o lics , su i g en er ic  
C r eo les , an d  th orou gh ly  m ixed  p o ly g lo ts, e a c h  from  an  
h istor ica lly  d isc re te  an d  d istin ctiv e  reg io n  o f  L o u isia n a , as  
n ev er  h e r e to fo r e  s o  ex ten siv e ly  a g g lo m er a ted .

( ii)  Economic Base

C o tto n  an d  so y b ea n  p la n ta tio n s , c e n te r s  o f  
p etr o ch em ica l p ro d u ctio n , urban  m an u factu rin g  co m p lex e s , 
tim b er lan d s, saw  m ills  an d  p a p er  m ills, river b arge  d e p o ts , 
an d  rice  an d  su garcan e f ie ld s  are strun g to g e th e r  to  form  th e  
e c le c t ic  an d  in c o h e ren t indu stria l b a se  o f  D istr ic t 4 . T h e s e

^Disregarding New Orleans, which comprises the majority of 
District 2, the major municipalities of Shreveport, Baton Rouge, 
Lafayette, Monroe, Alexandria, and Ruston are all rent asunder in 
this manner.



69a

diverse segments of the State economy have little in 
common. Indeed, their interests more often conflict than 
harmonize.

(iii) Geography and Topography

Red clay hills and pinelands, hardwood bottomlands 
and forests, alluvial floodlands, coastal plains, marshes, 
swamps and wetlands—all are present in District 4, which—as 
noted above-stretches more than half a thousand miles from 
end to end. What did the Legislature intend when it created 
District 4— this non-traditional, little-in-common 
"un-district"? The indirect evidence overwhelmingly 
indicates that the Legislature specifically intended to create 
a plan with at least two majority black districts. Given the 
pre-existence of District 2, we find beyond cavil that the 
Legislature accomplished this by parceling voters into the 
remaining six districts on the basis of race.

b. Defendants’ Counter-Proof

In contrast, we have been shown no credible evidence 
supporting the defense witnesses’ proffered motivations of 
party and incumbency protection and socioeconomic 
commonality. Their explanations ring hollow. We find them 
to be no more than disingenuous, post hoc rationalizations. 
In particular, we find that neither partisan nor incumbency 
politics was a significant factor in the core decision 
intentionally to create a plan containing a second black 
majority district. At the Trial, the Defendants never 
suggested that partisan or incumbent politics played a role 
in the determination to create District 4.43 Indeed,

43At the Evidentiary Hearing, Defendants introduced evidence of 
the role of incumbency, but it proved irrelevant to the issue of 
intentional segregation of voters by race. Such evidence showed, at 
most, that incumbency affected only the general location of the



70a

Defendants’ counsel objected to Plaintiffs’ counsel’s 
questions aimed at eliciting testimony about the Black 
Caucus- Republican Caucus alliance that supported Act 42, 
arguing that such testimony was political and therefore 
irrelevant to the case. Moreover, even though party and 
incumbency protection play some role-- large or small—in 
virtually everything done in the legislative branches (and 
executive branches, for that matter) of our contemporary 
governments, this universal truism does not negate the 
compelling inference that Act 42 in general, and District 4 
in particular, are products of racial gerrymandering. 
Additionally, without for a moment granting that 
incumbency politics played a significant role in the decision 
to create a second majority black district, we question 
whether the Defendants could prevail in this litigation even 
if it had.

The Defendants seem to believe that they can defeat 
a claim of racial gerrymandering under Shaw if any factor 
other than race played any cognizable role in the creation of 
a challenged redistricting plan. Although we need not 
correct such a misconstruction of Shaw to find racial 
gerrymandering in this case, we briefly address this legal 
issue—obiter dictum—in hopes of shedding a little additional 
light on this difficult area of the law.

The Defendants evidently base their belief—that the

gerrymander that is District 4, i.e., the effective efforts of 
Congressional incumbents in "pushing" the pre-ordained second black 
majority district generally as far north and east as possible. Thus it 
follows largely the northern boundary of Louisiana with Arkansas and 
the eastern boundary of Louisiana, i.e., the Mississippi River. But, as 
Louisiana had already lost one of its eight seats in the House of 
Representatives, creating a game of incumbents’ "musical chairs," 
none should be surprised by the interesting but irrelevant fact that, 
once the decision to create a second minority- majority district had 
been made, each incumbent did what he could to keep his traditional 
geographical base and see that the new district was located anywhere 
but in his.



71a

presence of any non-racial motivating factor will excuse 
racial gerrymandering—on language found at the end of the 
Shaw opinion. There the Court indicates that a plaintiff 
states a claim under the Equal Protection Clause by alleging 
that a reapportionment plan is so irrational on its face "that 
it can be understood only as an effort to segregate 
voters...."44 This emphatically does not mean that if any 
other factor influenced the legislature the plaintiff is unable 
to establish a racial gerrymander. Rather, it means that if 
the contours and content of a redistricting plan can be 
wholly explained to be the product of one or more factors 
other than race, then the defendants have created a 
competing inference. The court must then weigh the 
competing inferences--as indeed it usually must—to decide 
whether the plaintiff has proved his inference by a 
preponderance of the evidence.45 Thus, accurately stated, 
the question posed by Shaw is whether a redistricting plan 
can be reasonably conceived as the product of non-racial 
factors. In this case the Plan cannot.46

“ Shaw, 508 U.S. at , 113 S.Ct. at 2832, 125 L.Ed.2d at 536 
(emphasis added).

*  Wright v. Rockefeller, 376 U.S. 52, 57, 84 S.Ct. 603, 605, 11 
L.Ed.2d 512 (1964).

46At the risk of flaying a dead horse, we point out that logic 
demands that the Defendants’ reading of Shaw  be rejected. Suppose 
a state legislature came right out and admitted that it racially 
gerrymandered districts in a reapportionment plan, thereby obviating 
the plaintiffs need to show racial gerrymandering inferentially. 
Could the state then say, "but we also drew a few district lines to 
protect incumbents, or to follow a river, or to put a state wildlife park 
in the district of a congressman who likes migratory birds," and 
thereby defeat plaintiffs claim because race was n o t the only factor  
involved in the delineation of districts? Race will never be literally 
the only factor. So Shaw  requires only that race be an important 
factor. If the plaintiffs evidence shows that the plan cannot be 
understood without postulating that the legislature was significantly



72a

No one claims that the contours of District 4 can be 
wholly and alternately explained as a product of partisan or 
incumbency politics. Every single witness who addressed the 
issue either proclaimed or acknowledged that the creation of 
a second black majority district was the primary factor~or at 
least a substantial and important factor--in the creation of 
the Plan. We agree. There is no way that a rational 
factfinder-looking at the map and reviewing the credible 
evidence with care—could conclude that Act 42 can be 
explained entirely without reference to racial 
gerrymandering.

At the Evidentiary Hearing, Dr. Alan Lichtman, an 
expert witness for the Defendants, opined that District 
4—which appears so violative of traditional redistricting 
principles—actually possesses socioeconomic commonality 
and coherence. Dr. Lichtman contended that District 4 was 
distinguishable from other districts because its residents were 
relatively poor, relatively under-educated, and owned fewer 
telephones and automobiles than did the residents of other 
districts established by the Plan. The Defendants offered 
this evidence to suggest "a rational basis [for District 4]

actuated by racial motives, then the plaintiff has made out a case of 
racial gerrymandering.

The cases of Wright v. Rockefeller and Arlington H eights v. 
M etropolitan H orn. Dev. Corp. support this interpretation. In Wright 
every member of the court accepted that the plaintiffs stated a claim 
by alleging that the "New York Legislature was either m otiva ted  by 
racial considerations, or in fact drew the districts on racial lines." 376 
U.S. at 54, 84 S.Ct. at 604. Similarly, the Court in Arlington Heights 
noted that invidious discriminatory intent need not be the legislature’s 
dominant purpose: proof that such discriminatory intent was "a
motivating factor" in the legislation is sufficient. 429 U.S. 252, 265, 
97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977).



73a

other than race."47 We do not gainsay the conclusions of 
this witness, but we disagree that they have significance.

Any able statistician who looks at enough statistical 
characteristics (multivariate analysis) can find something 
distinctive about any district. In this case District 4 was 
found to be fairly poor, although poverty is not particularly 
distinctive in any region of Louisiana. Had District 4 been 
a fairly wealthy district, the Defendants’ expert could have 
opined that the citizens of District 4 shared the common 
interest of wealth. And had District 4 fallen right in the 
middle, he could have explained that District 4 was 
distinctive in being the most solidly middle class. But all 
these observations are irrelevant because we find them to 
rise to no level higher than post hoc rationalization.48

47The Defendants also offered this evidence to argue (1) that Act 
42 served a compelling state interest by enhancing the representation 
for poor people-especially poor black people-and (2) that the Plan 
adhered to the traditional redistricting principle of "commonality of 
interests" and thus was narrowly tailored.

"An additional criticism of Mr. Lichtman’s statistical legerdemain 
is that the socioeconomic characteristics he analyzes are themselves 
strongly correlated with race, a classic chicken-or-egg fallacy. At this 
moment in history black people in the South (and generally in 
America) are—on the average-poorer and less well-educated than 
their white counterparts. Moreover, blacks in largely segregated 
communities are probably poorer-on the average-than blacks in 
more integrated communities. Consequently, racially gerrymandered 
plans, which seek to draw boundaries around various concentrations 
of black persons, will inevitably tend to concentrate the poorer, less 
well-educated blacks.

The Defendants’ conclusions therefore have a tautological 
quality: to prove that factors other than race can explain District 4, 
the Defendants analyze socioeconomic factors that correlate strongly 
with race. Of course District 4 is relatively poor and relatively 
uneducated: it was intentionally filled with relatively poor and
uneducated minorities. To use statistical parlance, Dr. Lichtman’s 
conclusions are spurious: they tell us nothing that we could not have 
predicted based on the Legislature’s decision to pack District 4 with



74a

The Defendants admit that the socioeconomic 
profiles of the Plan’s districts were not actually used by the 
Legislature: the census data used in Defendants’ statistical 
analyses were not even available to the Legislature when it 
passed Act 42. More specifically, freshman Louisiana State 
Senator Tom Greene testified that no socioeconomic data 
was submitted with the various redistricting plans when they 
were considered by the Legislature. Thus, the allegedly 
distinctive socioeconomic profile of District 4 is factually 
unconvincing, methodologically flawed, irrelevant, and 
unquestionably a hindsight rationalization of a plan that 
everyone understands to have been principally designed to 
create two majority-black districts. More simply, the 
socioeconomic profile of District 4 is an effect of District 4’s 
design, not a cause.

We see, then, that the Defendants’ proffer of 
protection of incumbent politicians and distinctive 
socioeconomic profiles as alternative explanations for the 
peculiar contours of the Plan simply do not ring true. Faced 
with competing inferences, this court--as fact finder—must 
determine the credibility of witnesses, weigh the evidence, 
and choose between those inferences.49 Concluding that 
the facts and inferences overwhelmingly favor the Plaintiffs, 
we find that the Plan is undeniably a child of racial 
gerrymandering.50 Defendants must therefore demonstrate

black voters. For a more scientific discussion of such spurious 
correlations, see Hubert M. Blalock, Jr., Social Statistics 44348 
(McGraw-Hill 1972).

*9Wright v. Rockefeller, 376 U.S. 52, 57, 84 S.Ct. 603, 605, 11 
L.Ed.2d 512 (1964).

50In finding that racial gerrymandering exists in this case, we feel 
confident that we are faithfully following the Supreme Court’s temper 
in Shaw. In that case, the Court gives two examples of fact patterns



75a

that Act 42 is narrowly tailored to satisfy a compelling state 
interest, as required by Shaw and other applicable Equal 
Protection Clause cases.51

C. Direct Proof o f Racial Gerrymandering

We need not even consider the kind of indirect or 
inferential proof approbated in Shaw to reach the same 
point--a finding of racial gerrymandering. In this case, we 
also reach that junction when we consider the great weight 
of the direct evidence elicited at both the Trial and the 
Evidentiary Hearing.52 Regardless of whether we reach a 
finding of racial gerrymandering by the inferential approach 
elaborated in Shaw, or by direct testimony and documentary 
evidence, the Defendants have the burden of justifying that 
gerrymandering.

In this case, direct evidence clearly and forcefully 
demonstrates that the Plan is a product of racial

in which proving racial gerrymandering "will not be difficult at all." 
Shaw, 508 U.S. at — , 113 S.Ct. at 2826, 125 L.Ed.2d at 528. One 
example is when "a State concentratefs] a dispersed minority 
population in a single district by disregarding traditional districting 
principles such as compactness, contiguity, and respect for 
subdivisions." Id . Those facts squarely conform to this case. In the 
instant case, the Louisiana State Legislature created a serpentine belt 
600 miles long to engulf enough blacks (actually, more than enough) 
to create a single super-majority district. According to the Court, this 
case presents a textbook example of racial gerrymandering that can 
be easily proved by application of the Shaw  inferential minuet.

n Shaw, 508 U.S. at , 113 S.Ct. at 2826,125 L.Ed.2d at 528; see 
also supra note 13.

>2See Shaw, 508 U.S. at — , 113 S.Ct. at 2826,125 L.Ed.2d at 528 
(implying that however a racial gerrymander is established, it should 
receive strict scrutiny). See also supra note 17 and accompanying 
text.



76a

gerrymandering. Virtually every witness who testified at the 
Trial (all without the benefit of a retrospective, self- serving 
view of Shaw) either affirmatively stated or accepted as 
gospel that the Plan was drawn with the specific intent of 
ensuring the creation of a second, safe, black majority 
congressional district: namely, District 4. The Defendants’ 
witnesses either stated or conceded that the districts created 
by Act 42 were racially gerrymandered. Indeed, those 
witnesses, both lay and expert, spent most of their time at 
the Trial discussing how large the percentage of registered 
black voters needed to be in the new majority black district 
to guarantee the efficacy of their racial gerrymander~an 
efficacy they viewed as the sine qua non of preclearance.

In response to this court’s query whether the 
Legislature had created a racial gerrymander, Defendants’ 
counsel~Mr. Mongrue—said, "[a]nd [racial gerrymandering]^ 
exactly what [the Legislature] can do...." Similarly, Mr. 
Willie Hunter, a black state legislator and a fact witness for 
the Defendants, testified that the Legislature’s intention "was 
to create a district where there was an excellent possibility 
of having another black elected ..., and that to accomplish 
this they [the legislators] "looked at numbers [of black 
voters] period." Professor Engstrom, an expert witness for 
the defense, stated unabashedly that "race drove ... [the 
creation of] ... the Districts."

Not surprisingly, the Plaintiffs’ witnesses were at least 
equally convinced that considerations of race motivated the 
creation of Act 42. State Representative Adley, a white 
legislator from Northwest Louisiana, testified that "the only 
issue presented to us was a racial issue" and stated that 
District 4 was created "for the sole purpose of making sure 
that an additional black district got created regardless of 
what it looked like and what parishes it ran through ..." Dr. 
Gary Stokley agreed that "this plan is [based on] race."

At the more recent Evidentiary Hearing, however, 
the Defendants attempted to recast their arguments in light 
of Shaw and to gainsay the racial gerrymandering that they 
so readily approbated during the pre-Shaw Trial. But even



77a

at this latter hearing the witnesses agreed that race was the 
overarching factor that drove the actual creation of the Plan, 
and that the Legislature had specifically intended to assort 
voters into districts based on race. Senator Marc Morial, a 
black legislator from New Orleans who appeared on behalf 
of the Defendants, testified that ”[i]t was the intent of the 
Legislature to create ... [a ]... second majority black district." 
This is perhaps the clearest, most direct post-S/zatv statement 
of intent, and the best illustration of the difference between 
intent and motive. Similarly, United States Congressman 
James A. Hayes (D. La) stated that the politics of race "was 
the major element" that drove the creation of the Fourth 
District. Dr. Lawrence N. Powell, one of Defendants’ expert 
witnesses, agreed that "the primary determinant" of the 
shapes of Districts 2 and 4 was race.

During four full days of testimony, two in 1992 and 
two more in 1993, some witnesses stated that race was the 
only factor, while others said that race was the primary 
factor. One witness—apparently uncomfortable with saying 
race was the primary factor-admitted that race was a veiy 
important factor. Not one witness, Plaintiffs’ or Defendants’, 
testified that Act 42 was not largely a product of racial 
gerrymandering-not one.

Harking back to our homicide analogy, we note that 
although witnesses at the Evidentiary Hearing voiced various 
altruistic motives—or accused others of various ulterior 
motives—for intentionally employing racial gerrymandering to 
create voting districts on the basis of race,53 everyone 
agreed that the intent of the Legislature-analyzed as a whole 
rather than from the point of view of its constituent 
members or caucuses—was to create a redistricting plan with

33Among the positive goals thus voiced were promoting racial 
harmony, increasing racial fairness, eradicating vestiges of past de 
jure segregation, and "obeying the law" in the sense of complying with 
the Voting Rights Act in a way that would justify preclearance, to 
name a few.



78a

a second majority black district.
The evidence showed that the Plan passed the 

Legislature by virtue of an uncommon alliance of legislators: 
Some who supported the Plan wanted a second 
super-majority black district to increase the number of black 
representatives in Louisiana’s congressional delegation. 
Other supporters of the Plan perceived various benefits in 
the correlative whitening of some districts that attends the 
intentional segregation of black voters into other adjacent 
districts.54 But there is absolutely no doubt that the 
immediate intent of the Legislature as a whole was to enact 
a plan containing two black majority districts, essentially 
without regard to any other considerations and interests.

Viewed in any light, the direct evidence in this case 
proves the presence of racial gerrymandering. Thus, even in 
the event that we may have somehow misconstrued the 
Court’s opinion in Shaw, or misapplied the inferential 
minuet established therein, the direct evidence that Act 42 
was a product of racial gerrymandering is overwhelming. 
Two independent evidentiary bases (inferential and direct) 
thus support our finding that Act 42 reflects racial 
gerrymandering. Each is sufficient on its own to subject Act 
42 to strict scrutiny, and each is consequently sufficient to 
require the Defendants to demonstrate that Act 42 is 
"narrowly tailored to further a compelling governmental 
interest," as required by Shaw and other applicable Equal 
Protection Clause precedents.55

3‘Testimony at the trial revealed that Act 42 was passed by a 
legislative alliance between the Black and the Republican Caucuses, 
historically uncommon bedfellows but, according to expert testimony, 
a phenomenon occurring with increasing frequency across the 
country.

iSShaw, 508 U.S. at — , 113 S.Ct, at 2826, 125 L.Ed.2d at 528.



79a

D. Strict Scrutiny o f the Plan

Again, the core principle underlying the Supreme 
Court’s decision in Shaw is that racially gerrymandered 
redistricting plans are subject to the same strict scrutiny that 
applies to other state legislation classifying citizens on the 
basis of race.56 To survive such scrutiny, racially 
gerrymandered redistricting plans must be narrowly tailored 
to further a compelling governmental interest.57

1. Compelling Governmental Interest

Defendants advance four possible compelling state 
interests to justify their racial gerrymandering: (1)
conformity with Section 2 of the Voting Rights Act, (2) 
conformity with Section 5 of the Voting Rights Act, (3) 
proportional representation of Louisiana blacks in 
Congress,58 and (4) remedying the effects of past racial

>6See supra note 13.

57Shaw, 508 U.S. at — , 113 S.Ct. at 2826, 125 L.Ed.2d at 528.

55At the Trial, Legislator Willie Hunter strongly advocated a 
second black majority district for the expressed goal of achieving 
black proportionality in congress. Without commenting—one way or 
another—on proportional representation’s viability as a "compelling 
governmental interest," we foresee serious constitutional problems in 
accomplishing that goal through creation of a second black majority 
district. Evidence adduced here demonstrates that, of Louisiana 
black voting age population outside New Orleans, even the 
overloaded 63% black District 4 would produce the election of the 
[black] candidate of choice of fewer than 40% of those blacks whom 
the proponents of proportional representation want to be thus 
represented in Congress. Consequently, the Plan would constitute 
state action that, in effect, grants voting "proxies" from  the black 
voters residing in Districts 1, 3, 5, 6 and 7 to the black voters of 
District 4— clearly a disenfranchisement implicating equal protection 
and possibly due process as well.



80a

discrimination. Witnesses also made oblique references to 
various other admirable but nebulous—and often question­
begging—motives, like promoting racial harmony and 
ensuring fairness. As we conclude, however, that Act 42 is 
not narrowly tailored to further these or any other 
compelling state interests, we need not decide here whether 
any one or more of them-properly clarified-is such an 
interest. For the sake of judicial economy, then, we do not 
analyze them in detail. Rather, we assume- without 
granting-that one or all of them constitutes a compelling 
state interest.

2. Narrowly Tailored

By thus assuming—again, without granting—that the 
Defendants have articulated one or more compelling state 
interests that the Plan might further, we have shifted the 
focus of our strict scrutiny to the final aspect of Shaw: 
whether the Plan is narrowly tailored. In our final 
illustrative comparison with homicide, we note the 
parallelism between the hypothetical criminal defendant’s 
burden—at common law—of establishing an affirmative 
defense—such as justifiable homicide—and the State’s burden 
here of establishing the affirmative justification of a 
compelling state interest.59 But even such affirmative

39We realize that many states choose to make the absence of 
justification an element of the actus reus, thereby imposing upon the 
prosecution the burden of proving that the criminal defendant did not 
act in self-defense. As the Supreme Court has lately declined to 
review whether the Due Process Clause requires the burden of 
persuasion in self- defense cases to be placed on the prosecution, see, 
e.g., M oran  v. O hio, 469 U.S. 948, 105 S.Ct. 350, 83 L.Ed.2d 285 
(1984) (Brennan, J., dissenting), state legislatures remain free to 
allocate burdens of proof "by labeling as affirmative defenses" aspects 
of a case that could alternatively be considered elements of a crime.



81a

defenses contain crucial limiting elements: the requirement 
of applying only reasonable force in the self-defense context, 
and the requirement of narrow tailoring in the compelling 
state interest context.

A homicide defendant, relying for acquittal on 
self-defense or justifiable homicide, must show not only that 
he had a reasonable fear of imminent harm from the 
aggressor/victim, but also that he used no more force than 
was reasonably necessary under the circumstances. If a 
single, deterrent gunshot to the aggressor/victim’s leg 
happens to cause death from uncontrollable hemorrhaging, 
the homicide may well be justified; but if the defendant 
fires two or three or four additional, immediately-fatal shots 
into vital areas of that same aggressor/victim’s body after he 
has been neutralized by the first shot in the leg, the 
defendant is likely to find that the affirmative defense is 
unavailing.

In close parallel, Shaw tells us that, even in 
retrogression cases under Section 5, the State does not have 
carte blanche to engage in racial gerrymandering; its 
reapportionment plan must not go "beyond what [is] 
reasonably necessary" to further the compelling 
governmental interest. 60 That is the essence of narrow 
tailoring in the redistricting context: just as a homicide 
defendant may not use excessive force to stop an aggressor, 
neither may a state burden the rights and interests of its 
citizens more than is reasonably necessary to further the 
compelling governmental interest advanced by the state.

Patterson  v. N ew  York, 432 U.S. 197, 210, 97 S.Ct. 2319, 2327, 53 
L.Ed.2d 281 (1977); see also M cElroy v. H olloway, 451 U.S. 1028, 
1029-31,101 S.Ct. 3019,3019-21,69 L.Ed.2d398,399-400 (Rehnquist, 
J., dissenting). For our purposes, however, such subtleties are 
irrelevant: as noted above, we are merely using classic common law 
homicide/self-defense as an instructive analogy.

MShaw , 508 U.S. at — , 113 S.Ct. at 2831, 125 L.Ed.2d at 534.



82a

In this case, uncontroverted evidence from both the 
Trial and the Evidentiary Hearing convinces us that the Plan 
is not narrowly tailored to satisfy any of the supposedly 
compelling state interests advanced by the Defendants.61 
We reach that conclusion first because the Plan entails 
considerably more segregation than is necessary to satisfy the 
need for a second black majority district—even assuming 
arguendo that such a second district were itself justified—and 
second because the Plan excessively burdens a variety of 
third party interests-dramatically so.

In its Shaw opinion, the Supreme Court provides one 
example to illustrate how to apply the requirement that a 
racially gerrymandered plan be narrowly tailored to satisfy 
one or more compelling state interests: "A reapportionment 
plan would not be narrowly tailored to avoiding the goal of 
retrogression if the state went beyond what was reasonably 
necessary to avoid retrogression."62 Thus, if providing a 
single majority-minority district satisfies the nonretrogression 
requirement imposed by Section 5 of the Voting Rights 
Act,63 then a racially gerrymandered redistricting plan 
comprising more than one minority-majority district is not 
narrowly tailored to satisfy the compelling state interest of

61 As noted above, in this section we assume—arguendo—that the 
State has demonstrated a compelling state interest, although, in fact, 
we have not so found. Neither could we on the evidence here 
presented. That is a judgment for the Legislature to make and the 
courts to review.

62Shaw, 508 U.S. at , 113 S.Ct. at 2831, 125 L.Ed.2d at 534.

a Beer v. U nited States, 425 U.S. 130, 141, 96 S.Ct. 1357, 1364 
(interpreting Section 5 as prohibiting voting-procedure changes that 
"lead to a retrogression in the position of racial minorities....").



83a

comporting with Section 5.M Stated more broadly, as 
voters have an equal protection right not to be segregated by 
their state legislatures or local governments into various 
voting districts on the basis of race, only a plan that 
segregates to no greater extent than is reasonably necessary 
to further a compelling governmental interest can survive 
constitutional scrutiny. The same can be said for a plan that 
supersaturates a majority-minority district, while 
concomitantly depleting adjacent majority- majority districts 
of minority voters.

In this case, we find that the Plan entails more 
constitutionally suspect segregation than necessary, and is 
therefore not narrowly tailored. Continuing to assume 
arguendo that some state interest had been identified which 
could justify the creation of a second black-majority district, 
this Plan would have to be rejected as insufficiently narrowly 
tailored. It packs more black voters into a District 4 than 
are reasonably necessary to give blacks a realistic chance to 
determine the outcome of elections there, providing that 
they exercise their right to vote. Also, the boundaries of the 
district violate traditional districting principles to a 
substantially greater extent than is reasonably necessary. 
District 4 contains 63% registered black voters, significantly 
more than are needed to elect representatives of their 
choice. To greater or lesser degrees, all expert witnesses 
acknowledged—some only reluctantly under cross *

^The Court’s example clearly indicates that the State of Louisiana 
may not justify the Plan, or any other racially gerrymandered plan 
with more than one black majority district, by reference to the need 
to comply with the Section 5 nonretrogression principle. As noted 
above, because Louisiana lost a seat in the United States House of 
Representatives, a plan with one black majority district would satisfy 
the Section 5 nonretrogression requirement given no more dramatic 
shift in the statewide ratio of white-to-black voters than is 
demonstrated by a comparison of the 1980 and 1990 census figures. 
See supra note 21.



84a

examination--that 63% black voting age population was well 
in excess of the percentage needed for reasonable comfort 
in creating a safe voting-age majority-minority district. For 
further confirmation that this is so we need only ask 
rhetorically "If 54% is sufficient in District 2, why must 
District 4 be supersaturated with 63% black voting age 
citizens?" No evidence was adduced by the Defendants to 
demonstrate a substantial difference between the voting 
patterns in the areas covered respectively by Districts 2 and 
4—either in white crossover or black block voting—to 
rationalize the 54%-63% disparity in black voting age 
populations.

Although the witnesses at trial disagreed on the exact 
percentage of net white cross-over votes for black candidates, 
we find that the evidence supported an average, net white 
cross-over vote in non-judicial elections of between 10% and 
25%.65 The evidence at trial also indicated that minority 
voter registration is now comparable to white registration. 
Clearly, District 4 need not contain a black voting age 
population of 63% to satisfy the interest of a second district 
in which black officials can be readily elected. And, 
although it is not the province of this court in this case to 
establish the demographic specifications of the State’s 
congressional redistricting plan, we find on the basis of the 
credible testimony and documentary evidence, that in this 
instance a district with a black voting age population of not 
more than 55%—and probably less-would have been 
adequate to ensure that blacks could elect a candidate of 
their choice, assuming they chose to exercise their franchise

65. In other words, on the average-for non-judicial elections in 
Louisiana—black candidates will gain more votes from white 
cross-over voters (whites voting for black candidates) than they will 
lose from black cross-over voters (blacks voting for white candidates): 
thus, there is a positive net white cross-over vote. To put it another 
way, black voters are—again on the average—more racially 
coherent/conscious than white voters.



85a

and assuming the candidate of their choice had more than 
a modicum of appeal for non-black voters.

Additional confirmation that the Plan is not narrowly 
tailored lies in its excessive disregard of traditional 
redistricting criteria and its derogation from third-party 
interests. Supreme Court precedent indicates that a variety 
of factors, both relative and absolute, are germane to 
analyzing whether a government measure is narrowly 
tailored. These factors include (1) the necessity of the 
measure, (2) the efficacy of alternative race-neutral 
measures, (3) the availability of more narrowly tailored (less 
intrusive) measures, (4) the flexibility and duration of the 
measure, and (5) the impact o f the measure on the rights o f 
third parties.66 Relevant Supreme Court jurisprudence thus 
suggests that-in essence—a plan is not narrowly tailored if it 
adversely affects more interests, if it generally wreaks more 
havoc, than it reasonably must to accomplish the articulated 
compelling state interest. We find that the Plan thus 
offends.

Whether under a relative or a comparative analysis, 
the evidence adduced at Trial and at the Evidentiary 
Hearing undeniably established that, even in the face of the 
black population’s wide dispersion in Louisiana (outside New 
Orleans), a second black majority district could have been 
drawn that would have done substantially less violence to 
traditional redistricting principles. For example, Marc 
Morial stated that "[tjhere were alternatives which would 
have created a more compact black district that were not 
enacted...." Similarly, Congressman Hayes admitted that a 
more compact plan could have been enacted. Freshman 
United States Congressman Cleo Fields-the former state

66See, e.g., R ichm ond  v. J-A. Croson C o., 488 U.S. 469, 510-511, 
109 S.Ct. 706, 730-31, 102 L.Ed.2d 854 (1989); United S tates v. 
Paradise, 480 U.S. 149, 171, 107 S.Ct. 1053, 1066, 94 L.Ed.2d 203 
(1987); FuUilove v. KLutznick, 448 U.S. 448, 510-15, 100 S.Ct. 2758, 
2791-93, 65 L.Ed.2d 902 (1980).



86a

senator and incumbent congressman from new District 4, 
who testified for the Defendants-also acknowledged that "it 
would have been possible to fulfill the desire of a second 
[black] majority district ... and pay more attention than this 
District [District 4] does to both compactness and 
contiguity."

Dr. Alan Lichtman-one of the Defendants’ expert 
witnesses at the Evidentiary Hearing-likewise testified that, 
were he to sit down with Dr. Ronald Weber (the expert on 
the other side) they "could create a [second black majority] 
district that looked better than this one [district 4]." And 
Dr. W eber-the Plaintiffs’ expert witness at both the trial and 
the evidentiary hearing- testified that a plan could be 
devised that would include a second black majority district, 
yet still be significantly more compact and comport much 
more closely with other traditional redistricting principles.

The testimony of freshman state Senator Tom 
Greene at the Evidentiary Hearing was perhaps the most 
enlightening on this point. He stated that, with the neutral 
assistance of the Legislature’s redistricting computer 
technician, he (Greene) actually created a plan that evinced 
greater respect for Louisiana’s traditional parish boundaries 
than the Plan, and still included a second majority-black 
district. Finally, Mr. Glenn Koepp, who is the Assistant 
Secretary of the Senate and the technician in charge of 
reapportionment activity in Louisiana since 1981, testified 
that computer-supported mathematical modeling programs 
gave the State the tools to create several plans—including 
several with a second black district—that would respect 
traditional redistricting criteria to a much greater degree 
than does the Plan. Thus, the great weight of the credible 
evidence indicates that the Legislature could have developed 
and adopted a redistricting plan-even one with a second 
majority black district—that reflected greater respect for 
traditional redistricting criteria and that was less disruptive 
to the traditional political, social, economic, ethnic, 
geographical, and religious organization of the State. In 
short, substantially less extreme racially gerrymandered plans



87a

are readily available; plans without such obviously 
overbroad, overarching overkill.

In summary, we hold that the Plan is not narrowly 
tailored, either relatively or absolutely. This is so because it 
embraces considerably more racial gerrymandering-and thus 
more segregation--than is needed to satisfy any advanced 
state interest, and because the Plan unnecessarily violates a 
host of historically important redistricting principles, thereby 
adversely affecting countless third party interests. These 
several and varied interests--some constitutionally protected 
and others merely important-may not be callously sacrificed 
on the altar of political expediency, particularly when less 
broadly tailored plans are conceivable.67

IV
CONCLUSION

We find that the Plan in general and Louisiana’s 
Congressional District 4 in particular are the products of 
racial gerrymandering and are not narrowly tailored to 
further any compelling governmental interest. We are 
therefore constrained to conclude that the Plaintiffs’ right to

67We offer no opinion as to how much more narrowly tailored a 
plan would have to be to survive strict scrutiny. Indeed, we cannot 
say whether it is even possible-based on the 1990 Census-to devise 
a plan that would have two majority-minority districts and still be 
narrowly tailored vel non. Even a plan that under the circumstances 
is as narrowly tailored as possible—in a relative sense (i.e., the least 
invasive and damaging plan available to further a compelling state 
interest)—may fail to be sufficiently narrowly tailored—on an absolute 
basis—to pass constitutional muster. For example, when the minority 
population is spread so evenly throughout a state that a 
majority-minority district cannot be drawn without dramatically 
impairing the constitutional rights of the citizens of that state, there 
may simply be no constitutionally permissible way to draw such a 
district, no matter how defensible the legislature’s motives for wishing 
to do so, or how bona fid e  its efforts to tailor the plan narrowly.



88a

equal protection as guaranteed by the United States 
Constitution is violated by the Plan. Consequently, we 
declare Act 42 of 1992 to be unconstitutional and the 
redistricting plan embodied therein to be null and void; and 
we enjoin the State of Louisiana from holding any future 
congressional elections based on the Plan. We do not, 
however, invalidate the 1992 congressional elections held 
thereunder, but we do hold that the term of office of each 
member of the United States House of Representatives from 
Louisiana who represents a district created under the 
Plan-and each district thus created-shall expire, ipso facto, 
at noon on the 3rd day of January, 1995, such terms of office 
and such districts not to be extended or carried over into the 
next Congress in any manner whatsoever.



A P P E N D I X  A

The Seven Districts Created by Act 42

District
Total
Pop.

Total
White

Total
Black

Total 
Reg. Vot.

Total 
Reg. Wh.

Total 
Reg. Blk.

District 1 602,859
100.00%

528,079
87.60%

60,895
10.10%

325,140
100.00%

296,356
91.15%

26,238
8.07%

District 2 602,689
100.00%

213,832
35.48%

367,460
60.97%

295,953
100.00%

113,917
38.49%

177,634
60.02%

District 3 602,950
100.00%

454,235
75.34%

131,735
21.85%

329,451
100.00%

256,990
78.01%

70,016
21.25%

District 4 602,884
100.00%

198,389
32.91%

400,493
66.43%

309,357
100.00%

112,241
36.28%

195,351
63.15%

District 5 602,816
100.00%

463,168
76.83%

133,329
22.12%

321,508
100.00%

259,986
80.86%

59,748
18.58%

District 6 602,854
100.00%

502,982
83.43%

87,718
14.55%

329,071
100.00%

289,575
88.00%

38,032
11.56%

District 7 602,921
100.00%

478,453
79.36%

117,651
19.51%

331,814
100.00%

271,798
81.91%

58,944
17.76%

Total 4,219,973
100.00%

2,839,138
67.28%

1,299,281
30.79%

2,242,294
100.00%

1,600,863
71.39%

625,963
27.92%



CO

APPEN
D

IX



91a

WALTER, District Judge, concurring:

I concur with the result of the majority opinion. 
However, since my examination of the case differs somewhat 
analytically, I write separately.

This court considered several questions: May a State 
enact a race-based reapportionment plan? If so, under what 
circumstances are race-conscious measures allowed? Finally, 
how do these requirements apply to Act 42?

I
LAW

[I]n view of the constitution, in the eye of the 
law, there is no superior, dominant, ruling 
class of citizens. There is no caste here. Our 
constitution is color blind, and neither knows 
nor tolerates classes among citizens. In 
respect of civil rights, all citizens are equal 
before the law. The humblest is the peer of 
the most powerful. The law regards man as 
man, and takes no account of his 
surroundings or of his color when his civil 
rights as guaranteed by the supreme law of 
the land are involved ... The destinies of the 
two races, in this country, are indissolubly 
linked together, and the interests of both 
require that the common government of all 
shall not permit the seeds of race hate to be 
planted under the sanction of law ... The sure 
guaranty of the peace and security of each 
race is the clear, distinct, unconditional 
recognition by our governments, national and 
state, of every right that inheres in civil 
freedom, and of the equality before the law of 
all citizens of the United States, without 
regard to race. Plessy v. Ferguson, 163 U.S.
537, 558, 16 S.Ct. 1138, 1146, 41 L.Ed. 256



92a

(1896) (Harlan, dissenting).

A
CONSIDERATION OF RACE IN  REDISTRICTING 

LEGISLATION

Despite the legislation enacted to promote racial 
equality, many states remained recalcitrant to the Civil War 
amendments’ mandates. Among the methods used by the 
states to evade the fifteenth amendment were poll taxes, 
literacy tests, and gerrymandered1 districts. Responding to 
this perversion, Congress enacted the Voting Rights Act of 
1965 "as a dramatic and severe response to the situation." 
Shaw v. Reno, 508 U.S. — , — , 113 S.Ct. 2816, 2823, 125 
L.Ed.2d 511 (1993). Amended in 1982, section 2 of the 
Voting Rights Act prohibits the dilution of a minority 
group’s voting strength while section 5 mandates 
pre-clearance of newly created districts for those states that 
employed disenfranchising schemes in the past. The purpose 
of the voting rights legislation is to prohibit State efforts to 
abridge or deny minority representation. To this end, when 
pre-clearance is sought under section 5, the Department of 
Justice usually seeks maximization of minority voting 
strength to promote minority representation.2 Since

'Gerrymander is ”[a] name given to the process of dividing state 
or other territory into the authorized civil or political divisions, but 
with such a geographical arrangement as to accomplish an ulterior or 
unlawful purpose, as for instance, to secure a majority for a given 
political party in districts where the result would be otherwise if they 
were divided according to obvious natural lines." Black’s Law 
Dictionary (5th Ed.).

2It is my opinion that Shaw v. R eno  did not fully address the 
constitutional or statutory authority behind Department of Justice 
pre-clearance requirements that arguably go beyond the Voting 
Rights Act. Thus, the Supreme Court may very well hold the



93a

legislators are thus obligated to consider racial factors when 
redistricting, a delicate balance arises between promotion of 
minority suffrage and the color-blind strictures of equal 
protection.

B
EQUAL PROTECTION

"No State shall ... deny to any person within its 
jurisdiction the equal protection of the laws." U.S. Const., 
Arndt. 14 s 1. Interpreting this clause nearly a century ago, 
the Supreme Court held in Plessy v. Ferguson, 163 U.S. 537, 
558, 16 S.Ct. 1138, 1146, 41 L.Ed. 256 (1896) that the 
separate but equal doctrine comported fully with the 
Fourteenth Amendment. Id. at 548, 16 S.Ct. at 1142. "The 
majority [in Plessy] held that persons could be legally 
classified and treated in such a manner because of their race 
when the classifying law was a reasonable exercise of the 
police power. This meant that such laws must be 
reasonable, good faith attempts to promote the public good 
and not be designed to oppress a particular class." John E. 
Nowak, Ronald D. Rotunda, Constitutional Law, 618 (1991). 
As the Court itself stated:

[W]e think the enforced separation of the 
races, as applied to the internal commerce of 
the state, neither abridges the privileges or 
immunities of the colored man, deprives him 
of his property without due process of law, 
nor denies him the equal protection of the 
laws, within the meaning of the fourteenth

Department of Justice’s reliance on minimum "safe" percentages 
unconstitutional. I do not reach that question today but am troubled 
by the effect that these demands are having upon states seeking 
administrative pre-clearance rather than a declaratory judgment from 
the District Court of the District of Columbia.



94a

amendment.

Plessy, 163 U.S. at 548, 16 S.Ct. at 1142.

Fifty-eight years later, Plessy’s flawed concept of 
equal protection was rejected. Although Brown v. Board of 
Education o f Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 
873 (1954) did not expressly overrule Plessy outside the 
realm of education, that case heralded the demise of 
separate but equal treatment of the races by the states. 
Over the past four decades, the Supreme Court has 
confronted the consideration of. race in State and federal 
legislation and has fashioned specific guidelines for testing 
the constitutionality of such considerations.

The central purpose of the Equal Protection Clause 
"is to prevent the States from purposefully discriminating 
between individuals on the basis of race." Shaw v. Reno, 508 
U.S. at — , 113 S.Ct. at 2824. "Classifications based on race 
carry a danger of stigmatic harm. Unless they are strictly 
reserved for remedial settings, they may in fact promote 
notions of racial inferiority and lead to politics of racial 
hostility." City o f Richmond v. J.A. Croson Company, 488 
U.S. 469, 493, 109 S.Ct. 706, 722, 102 L.Ed.2d 854 (1989). 
Accordingly, the Court has "held that the Fourteenth 
Amendment requires state legislation that expressly 
distinguishes among citizens because of their race to be 
narrowly tailored to further a compelling governmental 
interest." Shaw, 508 U.S. at — , 113 S.Ct. at 2825. This test 
is known as strict or heightened scrutiny and is justified 
because:

[ajbsent searching judicial inquiry into the 
justification for such race- based measures, 
there is simply no way of determining what 
classifications are ’benign’ or ’remedial’ and 
what classifications are in fact motivated by 
illegitimate notions of racial inferiority or 
simple racial politics. Indeed, the purpose of



95a

strict scrutiny is to "smoke out" illegitimate 
uses of race by assuring that the legislative 
body is pursuing a goal important enough to 
warrant use of a highly suspect tool. The test 
also ensures that the means chosen "fit" this 
compelling goal so closely that there is little 
or no possibility that the motive for the 
classification was illegitimate racial prejudice 
or stereotype.

Croson, 488 U.S. at 493, 109 S.Ct. at 721. These equal 
protection principles apply to statutes that "although 
race-neutral, are, on their face, ’unexplainable on grounds 
other than race,’ " and classifications that are ostensibly 
neutral but are an obvious pretext for racial discrimination. 
Shaw, 508 U.S. at — , 113 S.Ct. at 2825 (citing Arlington 
Heights v. Metropolitan Housing Development Corp., 429 U.S. 
252, 266, 97 S.Ct. 555, 564, 50 L.Ed.2d 450 (1977); Yick Wo 
v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886)).

Under current equal protection doctrine, 
"race-conscious state decisionmaking is [not] impermissible 
in all circumstances." Shaw, 508 U.S. at — , 113 S.Ct. at 
2824 (emphasis in original). If State legislation contains 
explicit racial classifications, if it is inexplicable on grounds 
other than race, or if it contains race-neutral classifications 
that serve as mere pretext for racial discrimination, then 
courts are bound to apply the strict scrutiny regime. The 
classification must be justified by a compelling state interest, 
and then be narrowly tailored to fit that interest in order to 
survive constitutional scrutiny.

C
RACIAL GERRYMANDERING UNDER EQUAL 

PROTECTION

Redistricting legislation is almost always race-neutral 
on its face. Before Shaw, the Supreme Court had



96a

held that only two types of state voting 
practices could give rise to a constitutional 
claim. The first involves direct and outright 
deprivation of the right to vote, for example 
by means of a poll tax or literacy test ... The 
second type of unconstitutional practice is 
that which affects the political strength of 
various groups in violation of the Equal 
Protection Clause. As for this latter category,
[the Court] insisted that members of the 
political or racial group demonstrate that the 
challenged action have the intent and effect 
of unduly diminishing their influence on the 
political process.

Shaw, 508 U.S. at — , 113 S.Ct. at 2834 (White, J. 
dissenting). The latter category, known as "dilution," arises 
when voters are not deprived of the right to vote, but, 
through methods such as "cracking," "stacking," and 
"packing," certain groups are denied an effective vote. See, 
United Jewish Organizations o f Williamsburgh, Inc. v. Carey, 
430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977) ("UJO"); 
Voinovich v. Quilter, 507 U.S. — , 113 S.Ct. 1149, 122 
L.Ed.2d 500 (1993). Acknowledging UJO and its progeny, 
Shaw went further, holding that "district lines obviously 
drawn for the purpose of separating voters by race require 
careful scrutiny under the Equal Protection Clause 
regardless of the motivations underlying their adoption." Id. 
508 U.S. at — , 113 S.Ct. at 2826.

Supporting this holding is the now famous case of 
Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 
110 (1960) in which the Alabama legislature redefined the 
boundaries of Tuskegee, essentially excluding all but a few 
black citizens from the district. The result was "a strangely 
irregular twenty-eight-sided figure." Id., at 341, 81 S.Ct. at 
127. The Court found the scheme repugnant to the 
Fifteenth Amendment, holding:



97a

... Act 140 was not an ordinary geographic 
redistricting measure even within familiar 
abuses of gerrymandering. If these 
allegations upon a trial remain uncontradicted 
or unqualified, the conclusion would be 
irresistible, tantamount for all practical 
purposes to a mathematical demonstration, 
that the legislation is solely concerned with 
segregating white and colored voters ... It is 
difficult to appreciate what stands in the way 
of adjudging a statute having this inevitable 
effect invalid in light of the principles by 
which this Court must judge, and uniformly 
has judged, statutes that, howsoever 
speciously defined, obviously discriminate 
against colored citizens.

Id. at 341, 342, 81 S.Ct. at 127, 127. Therefore, racial 
gerrymandering, or legislation that manipulates district lines 
to achieve a predetermined racial result is subject to strict 
scrutiny.

D
PROVING A RACIAL GERRYMANDER

"Proof of racially discriminatory intent or purpose is 
required to show a violation of the Equal Protection Clause." 
Arlington Heights v. Metropolitan Housing Development Corp., 
429 U.S. 252, 265, 97 S.Ct. 555, 563. Such invidious 
discriminatory intent or purpose need not be the legislature’s 
dominant or primary consideration. Rather, proof that 
invidious discriminatory purpose was a motivating factor in 
the legislation will suffice. Id. Because improper racial 
classifications rarely appear on the face of legislation, the 
Supreme Court has identified subjects of proper inquiry in 
determining whether racially discriminatory intent existed. 
For example, legislation that "bears more heavily on one 
race than another" may indicate discrimination, Washington



98a

v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), 
as will historical patterns, Arlington Heights v. Metropolitan 
Housing Development Corp., 429 U.S. 252, 267, 97 S.Ct. 555, 
564, 50 L.Ed.2d 450 (1977), legislative history, Id., 
irrationality pointing to nothing but racial classification, Yick 
Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 
(1886), and direct evidence adduced, as in this case, before 
a three judge panel. Shaw stands for the proposition that 
bizarre reapportionment schemes such as that challenged in 
North Carolina and Act 42 fall into the Yick Wo category 
and may, in and of themselves, be evidence of invidious 
discrimination.

Of course, these indicators may be rebutted by 
evidence of wholly legitimate purposes. "The district lines 
may be drawn, for example, to provide for compact districts 
of contiguous territory, or to maintain the integrity of 
political subdivisions." Shaw, 508 U.S. at — , 113 S.Ct. at 
2826. When such legitimate purposes are disclosed and 
accepted by the court, heightened scrutiny is inappropriate. 
However, if the grounds asserted are an obvious pretext for 
racial discrimination or are simply post hoc arguments 
contrived to shield the segregation from judicial inquiry, the 
court must pursue the strict scrutiny regime.

E
STRICT SCRUTINY: WHEN IS A STATE INTEREST 

COMPELLING AND WHAT DETERMINES 
NARROW TAILORING?

1
COMPELLING STATE INTEREST

Few interests will be deemed "compelling" enough to 
justify State classifications according to race. The Supreme 
Court has given little indication as to what satisfies this 
portion of the strict scrutiny regime. However, the Court has 
accepted the correction of past governmental and private



99a

sector discrimination, Richmond v. J.A. Croson, 488 U.S. 469, 
109 S.Ct. 706, 102 L.Ed.2d 854 (1989), ethnic and racial 
diversification in the faculty and student bodies of state 
operated universities and professional schools, see Regents o f 
the University o f California v. Bakke, 438 U.S. 265, 98 S.Ct. 
2733, 57 L.Ed.2d 750 (1978), and has suggested that States 
have a "very strong interest in complying with federal 
antidiscrimination laws that are constitutionally valid as 
interpreted and applied." Shaw, 508 U.S. at — , 113 S.Ct. at 
2830. Despite the language in Bakke, the Court seems 
unwilling to allow any race-based measures outside a 
remedial setting3. Croson, 488 U.S. at 493, 109 S.Ct. at 721.

Although the States and their subdivisions may take 
action to remedy discrimination, "they must identify that 
discrimination, public or private, with some specificity before 
they may use race-conscious relief." Croson, 488 U.S. at 503, 
109 S.Ct. at 727. That identification occurs when "judicial, 
legislative, or administrative findings of constitutional or 
statutory violations" are made. Bakke, 438 U.S. at 308-309, 
98 S.Ct. at 2757-2758. Otherwise, "the dream of a Nation of 
equal citizens in a society where race is irrelevant to 
personal opportunity and achievement would be lost in a 
mosaic of shifting preferences based on inherently 
unmeasurable claims of past wrongs." Croson, 488 U.S. at 
504, 109 S.Ct. at 728.

2
NARROWLY TAILORED

Once an interest has been properly identified and 
accepted as compelling, the court must examine the 
classification in order to determine whether it is narrowly

3Compliance with federal law under the Voting Rights Act may 
be viewed as remedial and, therefore a state interest and perhaps 
compelling.



100a

tailored to "fit" the interest involved. In deciding whether 
race- conscious remedies are appropriate, the court may 
consider several factors. Among these are the necessity for 
the relief and the efficacy of alternative remedies; the 
flexibility and duration of the relief; and the impact of the 
relief on the rights of third parties. U.S. v. Paradise, 480 
U.S. 149, 169, 107 S.Ct. 1053, 1066, 94 L.Ed.2d 203 (1987). 
However, the relief must not go beyond what is reasonably 
necessary to accomplish the compelling interests. See, Shaw, 
508 U.S. at — , 113 S.Ct. at 2831.

Therefore, this court must first determine how the 
districts were drawn, that is, whether they were drawn along 
race lines or not. To do so, this Court will examine the 
factors listed in section D above. If the State counters with 
a legitimate non-racial explanation for Act 42’s 
configuration, this Court will defer to the Legislature and 
refrain from reviewing the merits of their decisions. 
However, if a motivating factor behind the reapportionment 
scheme was racial, strict scrutiny applies. Then we turn to 
whether the State had a compelling interest supporting racial 
discrimination. We will expect the State to provide specific 
evidence warranting its action and require a nexus between 
the action and the interest. Finally, we will examine whether 
Act 42 itself was narrowly tailored to fit the compelling 
interest in light of the factors discussed above.

II
ANALYSIS

A
AC T 42 IS A RACIAL GERRYMANDER

This court found the evidence to indicate 
overwhelmingly that the intent of legislature was to divide 
Louisiana’s congressional districts along racial lines. The 
inferential evidence and the direct testimony of legislators



101a

for both the plaintiffs and the State allow no other 
conclusion. It is true that the State attempted to 
demonstrate non-racial explanations for the highly irregular 
districts. In light of the testimony at both the trial and 
evidentiary hearing, these suggestions are but post hoc 
rationalizations.

The evidence before the Court demonstrated that the 
State Legislature acted as it did to gain pre-clearance and 
contrived the interest of correcting past discrimination for 
the purpose of the evidentiaiy hearing alone. Finally, as the 
majority notes above, most witnesses readily admitted to the 
availability of other plans less offensive to traditional 
districting patterns and or smaller racial discrepancies.

B
AC T 42 IS SUBJECT TO STRICT SCRUTINY

As our factual findings denote, Act 42 is a clear 
example of a racial gerrymander. Specifically, District 4 
permits no conclusion other than classic segregation. Both 
the facial irregularity without plausible non-racial 
explanation4 and the explicit testimony of the legislators

4The defense elicited testimony that District 4 actually represents 
certain commonalities of interest. Essentially, the State suggested 
that certain interests are predominantly shared by Blacks and 
therefore District 4 has a sufficient non-racial justification. This is 
exactly the type State action that our color-blind Constitution 
prohibits. As the Shaw  Court held:

"A reapportionment plan that includes in one district 
individuals who belong to the same race, but who 
are otherwise widely separated by geographical and 
political boundaries, and who may have little in 
common but the color of their skin, bears an 
uncomfortable resemblance to political apartheid. It 
reinforces the perception that members of the same 
racial group—regardless of their age, education, 
economic status, or the community in which they 
live-think alike, share the same political interests,



102a

require this finding. Since redistricting along racial lines was 
a motivating factor, Act 42 is subject to strict scrutiny. This 
panel must now determine whether Act 42 was justified by 
a compelling governmental interest and that the means 
chosen by the State to effectuate its purpose were narrowly 
tailored to the achievement of that goal.

1
COMPELLING INTERESTS

The State advanced two main compelling interests 
behind the racial gerrymander. I discussed the findings 
required by Croson, Wygant, and Bakke when a State 
attempts to rely on prior discrimination as a foundation for 
remedial action. I see no reason why the same analysis

and will prefer the same candidates at the polls. We 
have rejected such perceptions elsewhere as 
impermissible racial stereotypes. By perpetuating 
such notions, a racial gerrymander may exacerbate 
the very patterns of racial bloc voting that 
majority-minority districting is sometimes said to 
counteract.

The message that such districting sends to 
elected representatives is equally pernicious. When 
a district is obviously created solely to effectuate the 
perceived common interests of one racial group, 
elected officials are more likely to believe that their 
primary obligation is to represent only the members 
of that group, rather than their constituency as a 
whole. This is altogether antithetical to our system 
of representative democracy." Id . 508 U.S. at — ,
113 S.Ct. at 2827.

I agree with what I perceive to be Justice O’Connor’s views. If a 
multi- cultural State in which voters shared interests not according to 
the color of their skin but the content of their lives and experiences 
was the Legislature’s goal, the tampering would have resulted in more 
evenly split districts. The races would then have to reconcile their 
differences with one another and move forward on common ground.



103a

should not apply when a state argues that compliance with 
federal anti-discrimination law mandated the jurisdiction’s 
race-based action. In order to rely on "remedying past 
discrimination" and "obeying the law," a State must 
"demonstrate a strong basis in evidence for its conclusion 
that remedial action was necessary." Croson, 488 U.S. at 510, 
109 S.Ct. at 730. I examine each purported interest in turn 
to see if the State has met this burden.

a
Past or Present Discrimination

"Societal discrimination, without more, is too 
amorphous a basis for imposing a racially classified remedy." 
Wygant v. Jackson Bd. ofEduc., 476 U.S. 267,106 S.Ct. 1842, 
90 L.Ed.2d 260 (1986). The Supreme Court has firmly held 
that States must have "convincing evidence that remedial 
action is warranted." Id. While there is no doubt that 
Louisiana has a sorry history of race relations, the defense 
did not provide evidence that the Legislature had before it 
the necessary factual predicate warranting a voluntary 
affirmative action redistricting plan. In fact, the evidence 
supports the conclusion that the Legislature did not create 
Act 42 for the purpose of remedying past discrimination at 
all. Thus, if the State does intend to redistrict along racial 
lines with the goal of correcting past electoral discrimination, 
it must demonstrate what evidence warrants a finding of 
discrimination and how a specific plan relates to the 
elimination thereof.

b
Pre-clearance from the Department of Justice

The State legislators acted under the assumption that 
failure to create a second majority-minority district would 
result in the denial of pre-clearance by the Department of 
Justice. This assumption seems to be founded upon the 
rejection of two non-congressional plans by the Department



104a

of Justice. However, both letters from the Civil Rights 
Division acknowledged that the plans satisfied Section 5 
pre-clearance requirements but rejected the plans because 
they could have been drawn more effectively. The Shaw 
opinion held that a state interest in complying with federal 
law is compelling only as constitutionally interpreted and 
applied. Additionally, by pointing out the distinction 
between what the law requires and what it permits, the Court 
stated that even valid plans under the Voting Rights Act 
must comport with the Fourteenth Amendment. Because 
the Voting Rights requirements do not give covered 
jurisdictions carte blanche to engage in racial geriymandering 
in the name of nonretrogression, the question for this court 
is whether the State of Louisiana had a strong basis in 
evidence for the belief that failure to create a second 
majority-minority district would violate Section 2 or 5 of the 
Voting Rights Act.

(1)
Section 2 o f the Voting Rights Act

Section 2 of the Voting Rights Act of 1965, 42 U.S.C. 
s 1973 was enacted to accomplish the guarantees of the 
Fifteenth Amendment. Specifically, Section 2(a) prohibits 
the imposition of any electoral practice or procedure that 
"results in a denial or abridgement of the right of any citizen 
... to vote on account of race or color." This section 
therefore rejects State actions that, "interacting with social 
and historical conditions, impair the ability of a protected 
class to elect its candidate of choice on an equal basis with 
other voters." Voinovich v. Quilter, 507 U.S. — , — , 113 
S.Ct. 1149, 1155, 122 L.Ed.2d 500 (1993). If, under the 
totality of the circumstances, a State’s apportionment scheme 
has the effect of diminishing or abridging the voting strength 
of a protected class, a Section 2 violation has occurred. Id. 
These "dilution" claims involve three threshold conditions.



105a

First, they must show that the minority group 
’is sufficiently large and geographically 
compact to constitute a majority in a single 
member district.’ Second, they must prove 
that the minority group " ’is politically 
cohesive.’ " Third, the plaintiffs must 
establish ’that the white majority votes 
sufficiently as a bloc to enable it ... usually to 
defeat the minority’s preferred candidate.’

Id. 507 U.S. at — , 113 S.Ct. at 1157 (quoting Gingles, 478 
U.S. 30, 50-51, 106 S.Ct. 2752, 2766, 92 L.Ed.2d 25 (1986)). 
District 4 is evidence alone that the minority population 
large enough to constitute a majority in a single member 
district is not geographically compact. Without satisfaction 
of this initial Gingles condition, it is impossible to find that 
the State had a rational basis to believe that failure to create 
a second majority-minority district would violate Section 2. 
Reliance on possibly invalid applications of the Voting 
Rights Act by the Department of Justice cannot create a 
compelling state interest. If so, the Department of Justice 
and various States could sidestep the holdings of Croson, 
Gingles, and Shaw with ease.

(2)
Section 5 o f the Voting Rights Act

Similar findings are required under the 
"nonretrogression" analysis of Section 5. If the State had no 
basis to believe that one majority-minority district out of 
seven districts would constitute retrogression, then reliance 
on Section 5 as a compelling interest is misplaced. "Under 
[the nonretrogression] principle, a proposed voting change 
cannot be pre-cleared if it will lead to a retrogression in the 
position of racial minorities with respect to their effective 
exercise of the electoral franchise." Shaw, 508 U.S. at — , 
113 S.Ct. at 2830 (quoting Beer v. U.S., 425 U.S. 130,141, 96 
S.Ct. 1357, 1364, 47 L.Ed.2d 629 (1976)). On its face,



106a

creating one district out of seven when the previous ratio 
was one district out of eight is not retrogressive. Once 
again, the legislature appears to have founded their belief 
that one district out of seven is retrogressive completely on 
the Department of Justice’s previous unrelated rulings and 
the assumption that a gerrymandered second district was a 
requisite to pre-clearance. Without restating the points 
made above, I find such an assumption, without additional 
evidence, uncompelling.

In summary, I find post hoc reliance on past 
discrimination and warrantless assertions that the Voting 
Rights Act mandated a second district, unpersuasive. This 
is not to say that the State cannot rely on those interests to 
justify future affirmative action. Rather, I find that the basis 
forwarded by the State to claim these interests as compelling 
is so slim that they reek of the pretextual and the contrived.

2
NARROWLY TAILORED

Even if this panel were to overlook the dearth of 
Crosort-type findings in this case, Act 42 cannot be termed 
narrowly tailored to fit the interests above. Since I concur 
in the majority opinion, I find no reason to reiterate their 
conclusions that Act 42 is not narrowly tailored to fit any 
compelling interest.

Ill
CONCLUSION

I am gravely disturbed by the history of racial 
discrimination in this country and State, but I believe that 
segregation of voters by race will achieve nothing but more 
discrimination, more separation, more animosity and would 
push Justice Harlan’s and Dr. King’s dream for this nation 
ever further into the future. One hundred and thirty years 
ago this nation endured a bloody civil war to ensure freedom



and equality for all. That pledge, so dearly bought, remains 
elusive, but the concept that people defined only by race 
should receive separate representation in the legislative 
bodies of our government mocks the goals for which so 
many have suffered and died. Indeed, in my opinion, it 
breathes life into the discredited doctrine announced by the 
majority in Plessy, forty years after the Supreme Court 
administered what should have been its mortal wound.
The districts created under Act 42 are the creatures of a 
racial gerrymander. The circumstantial and direct evidence 
supported no other conclusion. Therefore, strict scrutiny 
applies to Act 42. Under that regime, the justifications 
offered by the State for its race-based measures were not 
accompanied by the requisite factual predicate. 
Additionally, the measures taken were not narrowly tailored 
to fit the interests, however baseless, advanced by the State.

107a



108a

A P P E N D I X  G

[F ile d  A u g . 2 4 , 1 9 9 4 ]

U N I T E D  S T A T E S  D IS T R IC T  C O U R T  
F O R  T H E  W E S T E R N  D IS T R IC T  O F  L O U IS IA N A  

S H R E V E P O R T  D IV IS IO N

RAY HAYS, et al., 

Plaintiffs,
vs.

EDWIN W. EDWARDS, 
et al.,

Defendants,
vs.

Civil Action No. 
92-1522S

UNITED STATES OF 
AMERICA,

Defendant-
Intervenor.

NOTICE OF APPEAL

Notice is hereby given that Bernadine St. Cyr, 
Donald Thibodeax, Patrick Fontenot, Hazel Freeman, 
Janice Frazier, Ralph Wilson, proposed defendant- 
intervenors in the above named case, hereby appeal to the 
Supreme Court of the United States from an order 
denying intervention, pursuant to Fed. R. Civ. P. 24(a), 
and Fed. R. Civ. P. 24(b), issued by a three-judge panel 
in open court on July 21, 1994, and from the final



109a

judgment in this action entered on the 29th day of July 
1994.

This appeal is taken pursuant to 28 U.S.C. § 1253.

Respectfully submitted,

Elaine R. J ones 
Director-Counsel

Theodore  M. Shaw 
Associate Director-Counsel

/s/Judith  Reed  
NAACP Legal Defense and 

Educational Fund , Inc.
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

W illiam P. Quigley 
Loyola Law Clinic 
7214 St. Charles Avenue 
New Orleans, LA 70118 
(504) 861-5550 
State Bar No. 7769

Attorneys for defendant-intervenors

August 22, 1994