Louisiana Legislative Black Caucus v. Hays Brief in Opposition to Motion to Dismiss or Affirm

    No. 95-1682

IN THE

Supreme (Court of ttic Hnitei) States
October Term, 1995

LOUISIANA LEGISLATIVE BLACK CAUCUS, 
CONGRESSMAN CLEO FIELDS, 

BERNADINE ST. CYR, PATRICK FONTENOT, 
HAZEL FREEMAN and RALPH WILSON,

Appellants,
v.

RAY HAYS, et al.,
Appellees.

On Appeal from the United States District Court 
for the Western District of Louisiana

BRIEF ON BEHALF OF
LOUISIANA LEGISLATIVE BLACK CAUCUS, ET AL. 

IN OPPOSITION TO MOTION 
TO DISMISS OR AFFIRM

Ro bert  B. M cDu ff  
771 North Congress Street 
Jackson, MS 39202 
(601) 969-0802

Barbara R. Arnw ine 
T homas J. Henderso n  

*Brenda  Wright 
T odd A. Cox 
Law yers’ Co m m ittee  

fo r  Civil Righ ts 
Un d er  Law 

1450 G Street, N.W. 
Washington, D.C. 20005 
(202) 662-8600

Counsel for Louisiana Legislative Black Caucus 
(Additional Counsel listed on Inside Cover)



(Listing of Counsel continued from Outside Cover)

A. Leo n  Hig g inbotha m , Jr . 
Gregory  A. Clarice  
Debo  Adegbile
1285 Avenue of the Americas 
New York, NY 10019-6064 
(212) 373-3000

FRANCIS GOWEN, JR. 
222 Florida Street 
Shreveport, LA 71105 
(318) 797-6933

E rn est  Johnson
12124 Sullivan Road 
Baton Rouge, LA 70807 
(504) 261-6469

Counsel for Congressman Cleo Fields

E laine R. Jones
Director-Counsel

T h eod ore  M. Shaw 
N orman J. Chachkin
JACQUELINE A. BERRIEN
Victor  Bolden  
NAACP Legal De fe n se  & 

E ducational  Fu n d , In c .
99 Hudson Street 
New York, NY 10013 
(212) 219-1900

William  P. Quigley
Loyola University Law 

School
7214 St. Charles Avenue 
Box 902
New Orleans, LA 70118 
(504) 861-5590

Counsel for Bemadine St. Cyr, Patrick Fontenot, 
Hazel Freeman, & Ralph Wilson

* Counsel of Record



TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES............................................................ i

ARGUM ENT.......................................................... ....................... 1

I. THE APPEAL IS NOT MOOT .......................... 1

A. Appellees’ Mootness Argument Would
Require this Court to Overturn Decades 
of Precedent Under Section 5 of 
theVoting Rights Act .................................  1

B. If the Appeal Were Moot, the Judgment
Below Clearly Would Be Subject to 
Vacatur ........................................................  4

II. THE COURT SHOULD NOTE PROBABLE
JURISDICTION .................................................... 7

CONCLUSION.............................................................................  10

i



TABLE OF AUTHORITIES

Page

Cases

Abrams v. Johnson, No. 95-1425, prob. jur noted,
___ S.Ct.____ (May 20, 1996) .................. 7

Associated General Contractors v. City o f New Haven,
41 F.3d 62 (2d Cir. 1994) ................................... 6

Church of Scientology of California v. United States,
113 S. Ct. 447 (1992) ................ .........................3

Clark v. Roemer,
500 U.S. 646 (1991) ............................... 3

Connor v. Waller,
421 U.S. 656 (1975) ....... .................. ..................1

Crowell v. Mader,
444 U.S. 505 (1980) .............................................5

Georgia v. United States,
411 U.S. 526 (1973) ..................... .................. . . 1

Haley v. Pataki,
60 F.3d 137 (2d Cir. 1995) .................................5

Johnson v. De Grandy,
114 S. Ct. 2647 (1994) ........................................9

Karcher v. May,
484 U.S. 72 (1987) ..........................................  4, 5

i i



Page

McDaniel v. Sanchez,
452 U.S. 130 (1981) ...................................  1-3, 6

Miller v. Johnson,
115 S.Ct. 2475 (1995) ...... ........................... 8, 10

Shaw v. Reno,
113 S.Ct 2816 (1993) . . . . . . . . . . . . . . .  7, 9-10

Stringfellow v. Concerned Neighbors in Action,
480 U.S. 370 (1987) ............................................. 5

U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership,
115 S. Ct. 386 (1994) .............. ....................... 4-6

United States v. Hamburg-Amerikanische 
Packetfahrt-Actien Gesellschaft,

239 U.S. 466 (1916) ...................................... 4-5

United States v. Johnson, No. 95-1460, prob. jur. noted,
_  S. Ct. _  (May 20, 1996) ...............................7

Statutes

§ 2 of the Voting Rights Act, 42 U.S.C. § 1973 . . . . .  8

§ 5 of the Voting Rights Act, 42 U.S.C. § 1973c . 1-4, 6

Louisiana Acts 1994, Second Extraordinaiy
Session No. 1 ...............................................  passim

Louisiana Acts 1996, First Extraordinary
Session No. 9 6 ............................................... 1-4, 6

i i i



BRIEF OF LOUISIANA LEGISLATIVE 
BLACK CAUCUS, ET AL., IN OPPOSITION 

TO MOTION TO DISMISS OR AFFIRM

Appellants, the Louisiana Legislative Black Caucus, 
Congressman Cleo Fields, and Louisiana voters Bemadine 
St. Cyr, Patrick Fontenot, Hazel Freeman, and Ralph 
Wilson, submit this brief in opposition to appellees’ Motion 
to Dismiss or Affirm.

I. THE APPEAL IS NOT MOOT.

A. Appellees’ Mootness Argument Would Require this 
Court to Overturn Decades of Precedent Under 
Section 5 of the Voting Rights Act.

As a necessary predicate for their argument that the 
appeal is moot, appellees urge this Court to rule that the 
preclearance requirements of Section 5 of the Voting 
Rights Act, 42 U.S.C. § 1973c, do not apply to the 
Louisiana Legislature’s adoption of a new congressional 
redistricting plan, Act 96. Motion to Dismiss or Affirm at 
12-14. Of course, if preclearance is required under Section 
5, then Act 96 is not enforceable as law "until and unless" 
precleared, Connor v. Waller, 421 U.S. 656 (1975) (per 
curiam), and the attempted repeal of Act 1 is of no legal 
effect at this time, foreclosing any claim of mootness.

Appellees’ novel argument that Section 5 
preclearance is unnecessary conflicts with decades of settled 
precedent under Section 5.1 Appellees argue that

1 See Georgia v. United States, 411 U.S. 526 (1973) (redistricting 
plans are changes with respect to voting subject to Section 5 
preclearance); McDaniel v. Sanchez, 452 U.S. 130 (1981) 
(redistricting plans are subject to Section 5 preclearance even when 
enacted in direct response to federal court order).



2

preclearance of Act 96 is not required because the 
Louisiana Legislature merely enacted a redistricting plan to 
comply with an order of the federal district court. Motion 
to Dismiss or Affirm at 13 ("Surely the Voting Rights Act 
does not prevent a State from enforcing the voting 
procedures it has been ordered to follow by a three-judge 
federal court") (emphasis in original).2 This Court rejected 
just such an argument in McDaniel v. Sanchez, holding as 
follows:

As we construe the federal mandate, it requires that 
whenever a covered jurisdiction submits a proposal 
reflecting the policy choices of the elected 
representatives of the people — no matter what 
constraints have limited the choices available to them 
— the preclearance requirement of the Voting 
Rights Act is applicable.

452 U.S. at 153 (emphasis added). Further, in support of 
its holding in McDaniel, this Court cited the legislative 
history accompanying Section 5, as follows:

"The one exception where Section 5 review would 
not ordinarily be available is where the court,

2 Elsewhere, appellees unceremoniously abandon this 
characterization of the Legislature’s action, instead declaring it a 
voluntary political decision. See Motion to Dismiss or Affirm at 1 
("rather than have a federal-court plan imposed on Louisiana by 
force, the State has decided to adopt that plan voluntarily. The 
political process has worked.") Notwithstanding appellees’ 
indecision on this issue, for purposes of Section 5 review, legislative 
action does not enjoy a safe harbor simply because it is alleged to 
be responsive to a federal court order. McDaniel v. Sanchez, 452 
U.S. at 148-149. In any event, the district court did not order 
Louisiana to enact legislation repealing Act 1.



3

because of exigent circumstances, actually fashions 
the plan itself instead of relying on a plan presented 
by a litigant. This is the limited meaning of the 
' court decree' exception recognized in Connor v. 

Johnson, 402 U.S. 690. Even in these cases, however, 
if the governmental body subsequently adopts a plan 
patterned after the court’s plan, Section 5 review would 
be required."

McDaniel v. Sanchez, 452 U.S. at 149, quoting S. Rep. No. 
94-295, pp. 18-19 (1975) (emphasis added). Thus, the 
argument that Act 96 somehow did not effect a change 
covered by Section 5, even though it repealed Act 1 and 
replaced it with a new redistricting scheme that dramatically 
reduces black voting strength in electing Louisiana’s 
congressional delegation, simply collapses when examined 
in light of McDaniel v. Sanchez.

Because Act 96, including its repeal of Act 1, is not 
valid as law without preclearance, Clark v. Roemer, 500 U.S. 
646, 652-53 (1991), the appeal of the District Court’s 
judgment striking down Act 1 is not moot. If the district 
court’s decision striking down Act 1 is reversed (and/or 
stayed) by this Court, Act 1 will be the legally enforceable 
plan in effect in Louisiana. An appeal is not moot when 
this Court can grant effective relief, see Church of 
Scientology of California v. United States, 113 S. Ct. 447, 449 
(1992), and this Court clearly can grant such relief on this 
appeal, given the absence of any precleared replacement 
legislation.3

3 Furthermore, even if Louisiana were to obtain preclearance for 
its legislation, the appeal would not be moot. The district court’s 
injunction permanently bars Louisiana from implementing any 
congressional redistricting plan other than the plan created by the



4

B. If the Appeal Were Moot, the Judgment
Below Clearly Would Be Subject to Vacatur.

Even if the appellees could establish that the 
enactment of unprecleared legislation moots this appeal, 
the proper relief would be an order vacating the district 
court’s judgment. The defendant-intervenors, all of whom 
are proper parties to this appeal, are in no way responsible 
for the enactment of Act 96. If all appeals from the 
judgment below are moot by virtue of the Louisiana 
Legislature’s enactment of a new apportionment scheme, 
then the appealing parties (excepting, arguendo, the State 
of Louisiana through its Attorney General) should not be 
bound by a judgment, review of which they sought without 
success due to circumstances beyond their control, see U.S. 
Bancorp Mortgage Co. v. Bonner Mall Partnership, 115 S. Ct. 
386, 390, 391 (1994), citing Karcher v. May, 484 U.S. 72, 82, 
83 (1987), and United States v. Hamburg-Amerikanische

district court unless Louisiana obtains advance approval for such 
plan from the court. La. J.S. App. 39-40. The district court’s order 
includes no time limit but applies to all future congressional 
redistricting efforts by the state. Id. In the absence of the district 
court’s injunction, Louisiana would be free to reinstate Act 1 or 
another redistricting plan different from the plan ordered by the 
federal court. Moreover, in light of the narrow margin by which Act 
96 passed the Louisiana Senate (20-19), many legislators obviously 
harbored substantial doubts as to the desirability of the plan, and 
there is no question but that the Louisiana Legislative Black 
Caucus, whose members voted against Act 96, would introduce 
legislation to restore Act 1 or a similar plan if the decision below is 
reversed. Thus, this Court’s reversal of the district court’s decision 
would grant effective relief by removing the bar of the district 
court’s injunction and permitting the Louisiana Legislature to 
conduct congressional redistricting free of the constraints imposed 
by the district court.



5

Packetfahrt-Actien Gesellschaft, 239 U.S. 466, 477-78 (1916).

In requesting that the judgment remain standing, 
despite the alleged mootness of the appeal, appellees rely 
on cases where all of the appellants who were proper 
parties to the appeal had voluntarily chosen to moot the 
case or to drop any appeal. Motion to Dismiss or Affirm 
at 14, citing Karcher v. May and U.S. Bancorp. Such cases 
are simply inapposite here, where the defendant-intervenors 
are proper parties to the appeal, see Stringfellow v. 
Concerned, Neighbors in Action, 480 U.S. 370, 375-376 
(1987), and the defendant-intervenors opposed the 
enactment that is alleged to result in mootness.

As this Court recognized in U.S. Bancorp, "[a] party 
who seeks review of the merits of an adverse ruling, but is 
frustrated by the vagaries of circumstance, ought not in 
fairness be forced to acquiesce in the judgment." U.S. 
Bancorp, 115 S. Ct. at 393.4 Defendant-intervenors are in

4 U.S. Bancorp involved a request to vacate a lower court 
judgment that had become moot because of a formal settlement of 
a commercial dispute by private parties; the narrow holding of the 
decision is simply that "mootness by reason of settlement does not 
justify vacatur of a judgment under review." 115 S. Ct. at 393. 
Even Louisiana, the sole appellant to which the U.S. Bancorp ruling 
could arguably apply, entered into no settlement with the plaintiffs 
in this case. Under such circumstances, the U.S. Bancorp ruling 
would not necessarily bar vacatur even if Louisiana were the sole 
appellant. See Crowell v. Mader, 444 U.S. at 506 (1980) (ordering 
vacatur of district court judgment striking down 1973 redistricting 
plan after Tennessee legislature enacted new redistricting plan in 
response to district court ruling); cf. Haley v. Pataki, 60 F.3d 137, 
142 (2d Cir. 1995) (holding that vacatur of injunction was proper 
under U.S. Bancorp where Governor had voluntarily complied with 
injunction).



6

precisely that position here, because they would face 
arguments that the judgment is preclusive with respect to 
potential challenges to the legality of Act 96 if the 
judgment is not vacated, even though they were unable to 
obtain review of the judgment. See also Associated General 
Contractors v. City o f New Haven, 41 F.3d 62, 67 (2d Cir. 
1994) ("A party should not suffer the adverse res judicata 
effects of a district court judgment when it is denied the 
benefit of appellate review through no fault of its own").

Further, even if the State of Louisiana were the only 
appellant in the case, extending the holding of U.S. Bancorp 
to prevent vacatur here would raise troubling questions 
because it could effectively serve as a method to evade 
proper Section 5 review of legislative enactments. Indeed, 
plaintiffs frankly admit that the purpose of their request for 
dismissal of these appeals without vacatur of the judgment 
below is to preclude Section 5 review of Act 96. Motion to 
Dismiss or Affirm at 14 n.2. Under plaintiffs’ theory, if the 
judgment remains standing despite the absence of an 
opportunity for appellate review, the State could rely upon 
the district court’s unreviewed ruling to argue that the 
district court plan is the required benchmark for Section 5 
review, thus shielding Act 96 from any meaningful scrutiny 
of its discriminatory effect and purpose in the Section 5 
review process. Application of the U.S. Bancorp ruling in 
this situation would thus have the perverse effect of 
encouraging manipulation of the litigation process to avoid 
meaningful Section 5 review, a result against which this 
Court warned in McDaniel v. Sanchez, 452 U.S. at 151.



7

II. THE COURT SHOULD NOTE PROBABLE
JURISDICTION

Appellees offer no cogent defense of the district 
court’s decision, in part because they completely ignore a 
central legal error on which the district court’s decision is 
based: the district court erroneously believed that
Louisiana was barred from modeling District 4 on previous 
versions of the majority-white old 8th District because "the 
1 Old Eighth1 was never challenged on constitutional 
grounds." Hays III, La. J.S. App. 17 n.48; see also Hays II, 
La. J.S. App. 66 (opinion for court), 78-79 (Shaw, D.J., 
joined by Wiener, J., concurring). By treating Louisiana’s 
past redistricting practices as inherently suspect, the court 
erroneously substituted its own redistricting preferences as 
the benchmark of constitutionality.5

This critical error — which appellees do not even 
attempt to defend — infects both major elements of the 
district court’s judgment. By assuming the illegality of

5 Abrams v. Johnson, No. 95-1425, and United States v. Johnson,
No. 95-1460, prob. jur. noted,__S. C t.__ (May 20, 1996), present
the issue, inter alia, of whether a district court unjustifiably departed 
from state policy when it redrew Georgia’s congressional districts 
after the state legislature failed to agree on a new, remedial 
redistricting plan. This case presents the related but separate issue 
of whether a district court overstepped its proper role by 
invalidating a remedial redistricting plan, Act 1, which the state 
legislature itself passed in response to Shaw v, Reno, 113 S. Ct. 2816 
(1993). This case also presents, like the Georgia appeals, the 
question of whether the district court’s substitute remedial plan 
improperly disregarded the requirements of Section 2 of the Voting 
Rights Act. Defendant-Intervenor J.S. at 27-29; see id. n.21. The 
Court could address these issues comprehensively by considering 
this case in tandem with the Georgia appeals.



8

Louisiana's past redistricting plans, the district court was 
unable to make a proper determination of whether Act 1 
so disregarded the State’s traditional practices as to require 
strict scrutiny under Miller v. Johnson, 115 S. Ct. 2475 
(1995). See Defendant-Intervenors’ J.S. at 14-15.6 The 
same legal error prevented the district court from properly 
assessing whether Louisiana was justified in adopting Act 
1 in light of Section 2 of the Voting Rights Act; the 
resemblance between District 4 and the old 8th District 
made it reasonable for the Legislature to conclude that the 
black population in Louisiana was sufficiently large and 
geographically compact to comprise a majority in two 
districts.7 Id. at 21-13. Contrary to appellees’ argument,

6 The district court’s only other explanation for disregarding the 
resemblance between District 4 and the old 8th District was its 
conclusion that the large black population concentration in the old 
8th should somehow disqualify it from serving as a permissible basis 
for a congressional district. See La. J.S. App. 16. Appellants have 
already discussed the clear defects in this reasoning. Defendant- 
Intervenor J.S. at 15. Further, Appellees indulge in semantics by 
arguing that the defendants proffered below, then somehow 
"abandoned," an entirely separate "Red River justification" for the 
4th District. Motion to Dismiss or Affirm at 20. Louisiana’s 8th 
District, from 1967 through 1992, was generally centered on the Red 
River and Mississippi River valleys. Thus, in creating a district 
modeled on the old 8th, the Legislature also created a district 
reflective of the commonalities encompassed by this Red River- 
Mississippi River axis.

7 The district court’s legal error in assessing this Section 2 factor 
is particularly critical because the other two central factors, black 
political cohesion and legally significant white bloc voting, are 
unquestionably present in Louisiana, as established by overwhelming 
statistical evidence. Defendant-Intervenor J.S. at 18-20. Appellees 
make no serious argument that these factors are not established by 
the record here.



9

such critical legal errors are not shielded from review by 
the "clearly erroneous" standard. Johnson v. De Grandy, 
114 S. Ct. 2647, 2662 (1994).

Rather than address this error, appellees argue, in 
effect, that the Louisiana Legislature should have been 
guided by mathematical measures of compactness that 
allegedly disfavor District 4. As defendant-intervenors have 
already pointed out, however, some of those mathematical 
measures in fact show District 4 to be similar to Louisiana’s 
previous districts. Reply of Louisiana Legislative Black 
Caucus, et al., in Further Support of Application for Stay, 
at 3-4; see 10/30/95 Tr. 162-63, testimony of Dr. Ronald 
Weber, plaintiffs’ expert ( "For the population compactness, 
it’s saying basically that the [District] 4 population 
compactness is relatively the same as the compactness of 
the old District 8 configurations"). Furthermore, the 
Legislature properly relied upon the obvious visual 
similarity between District 4 and the old 8th District. 
Defendant-Intervenor J.S. at 22. Appellees’ reliance on 
mathematical compactness scores that were not even before 
the Legislature is thus the only pertinent example of "post- 
hoc rationalization" revealed by the record.8

The appeal in this case remains the first in which a 
state legislature redrew its congressional districts so as to 
comply with the principles announced in Shaw v. Reno, only

8 Similarly, contrary to appellees’ strained argument, the absence 
of "compactness" data on Mr. Koepp’s computer screen does not 
remotely support a finding that Act 1 was constructed without 
regard to non-racial factors. Both Mr. Koepp and the Louisiana 
Legislature have knowledge of Louisiana and its redistricting history 
independent of that appearing on Mr. Koepp’s computer screen. 
See Defendant-Intervenor J.S. at 4-6 (describing testimony of Glenn 
Koepp and Louisiana legislators as to process of creating Act 1).



10

to have its redrawn plan again struck down by a federal 
court that treated its own redistricting preferences as the 
only appropriate model for the state to follow. The district 
court’s decision striking down Act 1, replacing it with a plan 
that dramatically dilutes the votes of black Louisianans, and 
permanently enjoining Louisiana from implementing any 
other plan without advance approval from the court, is of 
extraordinary importance to the people of Louisiana. It 
also presents the opportunity for this Court to establish 
how far the federal courts should go in taking over the 
redistricting process under the aegis of Shaw and Miller, a 
matter on which guidance is of vital importance to lower 
courts and state legislatures confronting litigation under 
those decisions.

CONCLUSION

The Court should note probable jurisdiction of this 
appeal.

Respectfully submitted,

R o b e r t  B. M cD u f f  
771 North Congress Street 
Jackson, Mississippi 39202 
(601) 969-0802

Br e n d a  W r ig h t  
(Counsel of Record)
T o d d  A. Cox 
Lawyers’ Committee 
for Civil Rights Under Law 

1450 G Street, N.W.
Suite 400
Washington, D.C. 20005 
(202) 662-8600

Counsel for Louisiana Legislative Black Caucus



11

A. Le o n  H ig g in b o t h a m , J r . 
G r e g o r y  A. Cla rick  
D e b o  A d e g b il e  
1285 Avenue of the Americas 
New York, NY 10019-6064 
(212) 373-3000

F ran cis Go w e n , J r  
222 Florida Street 
Shreveport, LA 71105 
(318) 797-6933

E r n e st  Jo h n so n  
12124 Sullivan Road 
Baton Rouge, LA 70807 
(504) 261-6469

Counsel for Congressman Cleo Fields

E l a in e  R. J on es 
Director-Counsel 
T h e o d o r e  M. Sh a w  
N o r m a n  J. Ch a c h k in  
Ja c q u e l in e  A. Be r r ie n  
V ic t o r  Bo ld en  
NAACP Legal Defense 
& Educ. Fund, Inc.

99 Hudson Street 
New York, NY 10013 
(212) 219-1900

W il lia m  P. Q u ig l e y  
Loyola Univ. Law School 
7214 St. Charles Avenue 
Box 902
New Orleans, LA 70118 
(504) 861-5590

Counsel for Bernadine St. Cyr, Patrick Fontenot, 
Hazel Freeman, and Ralph Wilson