Memo to Jack Greenberg from Napoleon Williams; letter to William Quigley from Napoleon Williams;Memo of Law in Support of Plaintiffs Motion for Partial Summary Judgment

    Memorandum 

Jack Greenberg 
James M. Nabrit \ 

3 \ nN IN ‘i 

Napoleon 'B. Williams, Jr. iT 
J 

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

  

  

May 21, 1982 

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

cc: Lani Guinier v 

NBW/r 

Attach 

 



May 19, 1982 

William P. Quigley, Esq. 
R. James Kellogg, Esq. 
631 St. Charles Avenue 

New Orleans, Louisiana 70130 

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

Dear Bill and James: 

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

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

Sincerely, 

Napoleon B. Williams, Jr. 

NBW/xr 

Enclosure 

 



UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA 

  

BARBARA MAJOR, et al., 

Plaintiffs, Civil Action No. 

¥. 82-1192 

PAVID C. TREEN, et al., In his 

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

Section: EB (D) (C) 

THREE JUDGE COURT CASE 
  

CLASS ACTION 
  

Defendants. 

  

SUPPLEMENTAL MEMORANDUM OF LAW 
IN SUPPORT OF PLAINTIFFS’ 

MOTION FOR PARTIAL SUMMARY JUDGMENT 
  

Statement of Proceedings 
  

This action was commenced April ro 1982, plaintiffs 

on behalf of black citizens registered to vote in Louisiana. 

The Complaint seeks a declaratory judgment and injunction 

enjoining defendants from conducting elections in the State 

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

Plans of apportionment for the election of members of the 

Louisiana House of Representatives of the United States Congress. 

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

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

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

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

the Constitution of the United States; and the Civil Rights 

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

be heard and determined by a district court of three judges 

pursuant to 28 U.85.C. §22841{e) and 42 5.8.0. §1973c.  



The Complaint alleges that the State's recently enacted 

districting plan for elections to the House of Representatives 

of the United States Congress and the recently enacted plan 

of apportionment for the Louisiana House of Representatives, 

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

void. The Complaint prays for injunctive relief against con- 

tinued operation, enforcement or administration of the challenged 

plans. 

The instant motion is for partial summary judgment. It 

pertains only to Louisiana's current districting plan for elections 

to the United States House of Representatives. Plaintiffs 

allege that the application of this plan, originally based upon 

the 1970 Cenvus, is unconstitutional in light of the results o 

the 1980 Census. 

On March 30, 1982, United States District Judge Robert 

Collins entered an order in the present action scheduling April 

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

defendants to file their respective memorandum of law with 

respect to plaintiffs' motion to consolidate the present case 

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

dismissed the latter action and denied the motion for consolida- 

tion. On April 1s, 1982, defendants, alleging that the issues 

herein were complex and citing the then pending motion to 

consolidate, filed a motion requesting an extension of time 

within which to answer the Complaint. 

Statement of Facts 
  

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

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

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

House of Representatives of the United States Congress. The  



Congressional districting plan created by the 1976 statute 

is the districting plan presently in effect for Congressional 

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

Census. The validity of its application in 1982 is the 

subject matter of the motion for partial summary judgment. 

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

First Extraordinary Session of 1981, enacted a redistricting 

plan for the United States House of Representatives. The plan 

was made effective January 3, a Its implementation is 

subject to the preclearance provisions of Section 5 of the Voting 

Rights Act of 1965, as amended, 42 v.8.0. §1973c. 

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

a declaratory judgment by the United States District Court in 

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

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

submit all proposed voting changes, including redistricting plans, 

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

the State obtains the approval of the Attorney General or the 

Attorney General fails to object within the stated statutory 

time period, the proposed voting change cannot be implemented, 

enforced or administered. 

The proposed Congressional districting plan enacted November 

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

General for approval. Decision by the Attorney General on the 

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

Candidates for election to the United States House of 

Representatives must qualify under the current districting 

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

  

1/ Act 20 of the First Extraordinary Session 1981, November 
20, ls9s2.  



and general elections to the United States House of Representatives 

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

On April 14, 1982, the parties herein appeared before 

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

solidation and on a motion by defendants to dismiss the action 

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

have sought to enjoin the implementation of the 1981 districting 

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

defendant Secretary of State of Louisiana in the Couhig case, 

admitted in open court that the 1976 Congressional districting 

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

outdated, and a patent violation of the constitutional rights 

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

Mr. Eckard further admitted that the application of the 1976 

plan is, in light of the differences between the population 

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

and unconstitutional." 

When the Louisiana Legislature drew up a Congressional 

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

Act, Noi 697, it created eight Congressional districts in 

Louisiana. The total population of Louisiana under the 1930 

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

districts, the average, or ideal population per district is 

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

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

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

well as the amount by which the population of that district 

falls short of the ideal population count and the percentage 

over or under the ideal amount by which it differs.  



TABLE A 

ABSOLUTE 

DEVIATION 
RELATIVE (%) 

DIsTRIcT POPULATION DEVIATION 
    

0
 

J 
OO
 

UB
 

=»
 

Ww
W 

ND
 

523,271 

461,802 

571,131 

508,593 

507,539 

377,140 

543,235 

511,261 

- rect 

-63,635 

-45,634 

-16,904 

-37.958 

+51,643 

+17,738 

-14,236 

= e42 

=312:12 

+ 3.68 

- 3.22 

- 3.42 

+ 9.83 

+ 3.38 

i 2e7l 

This chart shows that the greatest percentage difference 

in the relative deviations of any two districts is that between 

the Second Congressional District and the Sixth Congressional 

District. The combined sum of the relative deviations for the 

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

deviation. Thus, the 1972 Congressional districting plan, as 

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

an overall population deviation of 21.95%. 

‘During the 1981 session of the Louisiana Legislature, 

there were four main Congressional reapportionment plans which 

were considered by the Legislature for enactment. They were 4 

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

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

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

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

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

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

  

2/ See Exhibit "A" entitled "Comment Submitted To Justice 
Department, Office of Civil Rights, Voting Rights Section, 

Objecting to Louisiana's Reapportionment Plan for United States 
House of Representatives."  



show the feasibility of the enactment of Congressional re- 

istricting plans which have far less than the overall popula- 

tion deviation of 21.95% produced by the continued application 

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

the 1980 statistics. 

On January 27, 1982, plaintiffs and others 

filed objections with the United States Department of Justice 

with respect to the 1981 Congressional reapportionment plan 

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

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

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

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

jections. 

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

Department of the 1981 Congressional plan, the cbjections filed 

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

a substantial possibility that the 1981 Congressional plan will 

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

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

would create serious federal constitutional problems under the 

Supreme Court's one person, one vote rule. 

To forestall an unconstitutional application of 

Plan, as modified, plaintiffs request partial summary judgment 

declaring that the continued application of the 1972 plan would 

be violative of the federal guarantees under the equal protection 

clause of the Fourteenth Amendment to the Constitution of the 

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

Plaintiffs also request partial summary judgment enjoining the 

continued use of the 1972 plan.  



ARGUMENT 

PLAINTIFFS ARE ENTITLED TO PARTIAL SUMMARY JUDGMENT 
  

The provisions for partial summary judgment or summary 

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

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

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

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

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

judgment, the movant must thus show that no substantial dispute 

exists between the parties as to any material facts involved 

in the action. See, Fountain v. Filson, 336 U.S. 881 (1949), 
  

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

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

and the case will proceed to trial. 

To insure that the party moving for summary judgment has 

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

material fact, the federal rule requires that the materials 

produced upon the motion for summary judgment must be viewed 

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

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

  

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

  

Insurance Co. Of North America, 482 PFP.24 1057 (5th Cir. 1973). 
  

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

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

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

must be tried. See Hawkins v. Frick-Reid Supply 
  

F.24 88. (5th Cir. 19435). 

This Circuit has long followed 

not defeat summary judgment merely  



or by simply expressing an optimistic hope that something 

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

343 F.24 320 (3th Cir. 1972). Similarly, the. rule in this 

Circuit is that a mere formal denial is insufficient to defeat 

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

MEd. CO., 261 F.24 428 (Sth Cir. 1958). 

The exceptions permitting summary judgment to be denied 

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

dispute are few in number. One such exception permits the 

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

that the movant has exclusive knowledge of the relevant material 

facts; see, e€.g9., Slagle v. United States, F.288873 (5th 
  

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

See e.g., XRT, Inc. v. Krellenstein, 448 
  

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

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

malice. See, Alabama G.. S. R. Co. Vv. Louisville &s N. R. Co., 
  

224 F.24 1 (5th Cir: 1933); Time, Inc, v. Ragano, 274 F.2d 219 
  

{s&h Cir. 1978). 

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

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

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

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

Co. v. Equitable Life Assur. Society, 224 F.2d 338 
  

1955); Burce Constr. Corp. v. United States, 242 F. 
  

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

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

the parties under the law governing resolution of this action.  



7 

THE CONTINUED APPLICATION OF THE 1972 
CONGRESSIONAL REDISTRICTING 

PLAN IS UNCONSTITUTIONAL 
  

A. The Governing Law 
  

Although the constitutional validity of a State's 

reapportionment plan for its Legislature is measured by 

the Fourteenth Amendment's equal protection clause, the 

constitutional validity of its Congressional districting 

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

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

U.S. 783 (1973). In Wells v. Rockefeller, 394 U.S. 542 
  

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

reapportionment statute creating Congressional districts with 

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

I, §2 commands that "Congressional districting meet the 

standard of equal jag ais for equal number of people 

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

Similarly, in Kirkpatrick v. Preisler, 394.U.S. 526 (13569), 
  

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

% 

held unconstitutional a Missouri reapportionment statute which 

established Congressional districts with an overall population 

deviation of 5.97% when alternative districts could be drawn 

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

  

' 

3/ As early as 1964, the Supreme Court had held in Wesberry 
Vv. Sanders, 376 U.S. 1 (1964) that "(W)hile it may not be 
possible (for the states) to draw Congressional districts 
with mathematical precision," ig. at 18, Are. I1.,.82, of the 
Constitution requires that "as nearly as is practicable one 
man's vote in a Congressional election is to be worth as 
much as another's." Id., at 7-8. 

  

 



its opinion, the Court emphasized that it: 

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

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

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

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

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

that "{(u)nless population variances among Congressional districts 

are shown to have resulted despite such effort, the State must 
4/ 

justify each variance, no matter how small." Ig. ar 331. 

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

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

supra at 5331, the Court said, is "to prevent debasement of 

voting power and diminution of access to elected representatives." 

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

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

poses." Id. 

In holding that the Missour plan was unconstitutional, the 

Court in Kirpatrick v. Preisler, supra, specifically rejected 
  

Missouri's arguments that the particular variances were necessary 

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

and social interests (2) to obtain appropriate legislative 

compromises; or (3) to avoid fragmenting political subdivisions 

by drawing Congressional district lines along existing county, 

  

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

   



municipal, or other political subdivision boundaries. With 

respect to the first defense, the Court answered that 

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

interests, are permissible factors in attempting to justify 

disparities from population-based representation. Citizens, 

not history or economic interests, cast votes." Id. 394 U. S. 

at 333. 

With respect to the second argument concerning the need 

for flexibility in order to obtain legislative compromises, the 

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

cannot justify an apportionment which does not otherwise pass 

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

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

5/ 
on the need to maintain political boundaries. Id. at 3533-534. 

Thus, the governing standard applicable to Congressional 

redistricting permits "only those population variances among 

Congrssional districts that 'are unavoidable despite a good- 

faith effort to achieve absolute equality, or for which justification 

is shown'." White v. Weiser, 412 U.S. 733, 730 (1973). Under 
  

this standard, the districts must be "as mathmatically equal 

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

musi be "unavoidable.” 1d. at 790. As pointed out in plaintiffs’ 

first memorandum in support of their Motion for Summary Judgment, 

  

5/ The Court also rejected another argument of the State that 
its deviations, or variances, were necessitated by the need to 
ensure geographical compactness of each Congressicnal district. 
It noted that neither an aesthetic preference for pleasingly 
shaped districts nor any claim that communications and trans- 
portation were inadequate, could justify population variances. 
14. 394 U.S, at 536.  



the Supreme Court has invalidated under this standard, overall 

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

  

.97%, Kirkpatrick v. Preisler, supra; and 4.13%, White v. 

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

B. The Application of the Congressional Districting Plan Is 
Unconstitutional in Light of the 1980 Census 
  

The overall population variance produced today by the 

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

iance not only exceeds the variances held excessive in White 

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

  

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

Court has permitted for reapportionment of state legislatures. 

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

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

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

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

Thus, application of the 1972 Congressional plan violates 

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

> 

Conclusion 
  

For the reasons set forth herein, the Court should grant 

partial summary judgment declaring that application of the 

1972 Congressional districting law is unconstitutional and 

enjoining any further use of said 1972 Congressional districting 

law. 

Respectfully submitted, 

  

R. JAMES KELLOG, Trial Attorney 
WILLIAM P. QUIGLEY 

STEVEN SCHECKMAN 

STANLEY HALPIN 

631 St. Charles Avenue 
New Orleans, Louisiana 70130  



Dated: May, 

JACK GREENBERG 

JAMES M. NABRIT, ITI 

NAPOLEON B. WILLIAMS, JR. 

LANI GUINIER 

10 Columbus 
Suite 2030 
New York, New York 10019 

Attorneys for Plaintiffs 

 



LAW OFFICES OF 

QUIGLEY & SCHECKMAN 
631 ST. CHARLES AVENUE 

NEW ORLEANS, LOUISIANA 70130 
TELEPHONE: 504.524.0016 

WILLIAM P. QUIGLEY 

IN ASSOCIATION WITH: 
STEVEN SCHECKMAN 

R. JAMES KELLOGG 
MARK S. GOLDSTEIN 

May 11, 1982 

Mr. David R. Poynter 
Special Assistant Attorney General 
344 Napoleon Street 
Baton Rouge, LA 70802 

Kenneth C. Dejean 
Chief Counsel 
Department of Justice 
P.0. Box 44005 
Baton Rouge, LA 70804 

RE: Major v. Treen 

Gentlemen: 

We have filed the enclo 
t we have no objection to the Motion, lly reserve the right to request the Court hearing the second trial to take judicial notice of certain evidence to be presented in the first trial, relating to historical discrimination and similar items. As I've mentioned to each of you before, we see little reason in presenting identical evidence relating to these issues in two separate pro- ceedings before the same court. 

As you know, we have filed a Motion for Summary Judgment as to the constitutionality of the 1976 reapportionment of the Louisiana congressional districts. Ken has stated his position both to me and to Judge Collins that the State will probably be able to join in that Motion. If that is the case, I would appreciate confir- mation of your position in writing at the nearest opportunity. We will be moving in the very near future to convene the three-judge court, so that they may be in place to act quickly if the need arises. Furthermore, we anticipate requesting a status conference immediately after the Motion for Summary Judgment is heard on May 26. 

If the U.s. Department of Ju 
or about June 1, we will ask 

disco- 
It is my best 

~ 
a  



Mr. David R. Poynter 

Kenneth C. Dejean 

May 11, 1982 

Page 2 

It is my understanding from the conversation with David's staff that he will 
be representing the State only as to the State House of Representatives 

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

writing. 

Thank you for your attention to these matters. 

Sincerely, 

R. James Kellogg 

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

RJK 

RJK/jag 
cc: Lani Guinier 

Napoleon B. Williams 

Stanley A. Halpin 

William P. Quigley