Memorandum Opinion

    UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA 

BARBARA MAJOR, ET AL., Civil Action No. 82-1192 

Section 
Plaintiffs, 

versus MEMORANDUM OPINION 
  

DAVID C. TREEN, ETC., ET AL., 

Defendants. : 

Before Politz, Circuit Judge, Cassibry .and Collins, District 

Judges. : : 

Politz, Circuit Judge: 

Individually and on behalf of all black persons residing and 

registered to vote in ‘Louisiana, plaintiffs Barbara Major, 

Michael Darnell, Bernadine St.Cyr, Brenda Quant and Annie A. 

Smart brought suit under the Thirteenth, Fourteenth and Fifteenth 

aZmendments to the Constitution, the Civil Rights Act of 1871, 42 

U.S.C. § 1983, § 2 of the Voting Rights Act, as amended, 42 

U.5.C. “$1973, and 28 U.S.C. 85 2201 "and 2202, © seeking 

declaratory and injunctive relief restraining use of the recent 

realignment of the state's congressional districts, Act 20 of the 

1981 First Extraordinary Session of the Louisiana Legislature. 

Jurisdiction is based on 28 U.S.C. 55 1331 and 1343, and 42 

U.S.C. § 1973j. The gravamen of plaintiffs' claims is that Act 

20 was designed and has the effect of cancelling, minimizing or 

diluting minority voting strength by dispersing a black 

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population majority in Orleans Parish into two congressional 

districts. The question posited is whether legislation dividing 

a highly concentrated black population existing in one geographic 

and political unit, a parish, into two districts, rather then 

placing them in a single district in which blacks would 

constitute a majority, deprives Louisiana's black voters of the 

right to effective participation in the electoral process. 

  

Facts and Procedural History 

In November 1981, Act 20 of the Louisiana Legislature's 

First Extraordinary Session of 1981 apportioned the state into 

eight single-member congressional districts. Act. } of that 

session established new state representative districts. Both 

enactments were submitted to the Attorney General of the United 

States for preclearance under § 5 of the Voting Rights Act, 42 

U.S.C. § 1973c.! Prior to action by the Attorney General, 

  

l. Section 5 of the Voting Rights Act of 1385, 42 U.8.C. 1973¢, 
requires a state or political subdivision covered by the Act to 
obtain preclearance from the Attorney General of the United 
States or through the District Court for the District of Columbia 
whenever it adopts or seeks to administer any change in its 
qualifications, prerequisites, standards, practices or procedures 
with respect to voting. To receive preclearance, the proposed 
change must have neither the purpose nor the effect of denying or 
abridging the right to vote on account of race. The Attorney 
General's preclearance determiyation does not pretermit a 
subsequent action: 

Neither an affirmative indication by the 
Attorney General thac no objection will be 

(footnote continued)  



  
plaintiffs filed the instant suit attacking both plans on 

statutory and constitutional grounds. The case was assigned to 

the docket of Judge Robert F. Collins. On June 1, 1982, the 

Justice Department interposed a § 5 objection to Act 1, rendering 

that legislation unenforceable. 42 U.S.C. § 1973c. 

Judge Collins denied as moot plaintiffs’ motion to 

consolidate their complaint with one filed by a prospective 

congressional candidate which was later dismissed for want of a 

  

justiciable case or controversy. Robert E. Couhig, Jr. v. James 

L. Brown, Secretary of State, C.A. No. 82-1136-D {(E.D.La.). 
  

Defendants' motion seeking a separate trial of the claims of 

  

made, nor the Attorney General's failure to 
object, . . . shall bar a subsequent action to 
enjoin enforcement of such qualification, 
prerequisite, standard, practice, or 
procedure. 

42 U.S.C. § 1973e. 

Private plaintiffs are free to mount a de novo attack upon a 
reapportionment plan notwithstanding preclearance. United States 
v. East Baton Rouge Parish School Bd., 594 F.2d 56, 59 n.d (5th 
Cir. 1977). See Morris v, Gressette, 432 U.S. 491, 506-07 (1977) 
("Where the discriminatory character of an enactment is not 
detected upon review of the Attorney General, it can be 
challenged in traditional constitutional (or statutory] 
litigation. But it cannot be questioned in a suit seeking 
judicial review of the Attorney General's ([decision]."). Since 
the statutory standards of review under § 5 differ from those 
established by amended § 2, Report on S. 1992 of the Senate 
Committee on the Judiciary, S.Rep. No. 97-417, 97th Cong., 24 
Sess. (1982) at 68, 138-39, a grant or denial of preclearance 
pursuant to § 5 is not dispositive of a § 2 claim. Hence we 
conclude that the Assistant Attorney General's preclearance 
determination has no probative value in the'instant case. 

  

  

  

 



of congressional and state representative 

anted. Acting on plaintiffs' uncontested motion 

nary judgment, Judge Collins declared the 1976 

‘stricting plan, Act 697 of the 1976 Louisiana 

iconstitutional because of large population 

districts when viewed in light of data developed 

dS. 

f YS: 

Pu) 
Ciacrs wi cme rifth Circuit Court of Appeals on June 10, 1982. On 

judge court was designated by Chief Judge Charles 

June 18, 1982, Act 20 was ‘precleared by the Attorney General. 

After Act 1, as subsequently modified by the Louisiana 

Legislature, was approved by the Attorney General, plaintiffs 

amended their complaint to withdraw their challenge to the 

reapportionment of the Louisiana House of Representatives. In 

addition, plaintiffs amended their complaint to assert a cause of 

action under the 1982 amendments to § 2 of the Voting Rights Act 

of 11965, 42 U.5.C..§ 1973. 

By order dated March 7, 1983, this court reaffirmed Judge 

Collins' invalidation of Act 697. We granted plaintiffs' motion 

for class certification pursuant to Fed.R.Civ.P. a3(b) (2), 

designating a class of persons consisting of all black registered 

voters residing in the State of touiziana, Finally, we 

determined that 28 U.S.C. § 2284(a) vested in this court 

jurisdiction to entertain plaintiffs’ statutory and  



malapportionment of «congressional and state representative 

districts was granted. Acting on plaintiffs' uncontested motion 

for partial summary judgment, Judge Collins declared the 1976 

congressional districting plan, Act 697 of the 1976 Louisiana 

Legislature, unconstitutional because of large population 

variances among districts when viewed in light of data developed 

in the 1980 census. 

This three-judge court was designated by Chief Judge Charles 

Clark of the Fifth Circuit Court of Appeals on June 10, 1982. On 

June 18, 1982, Act 20 was precleared by the Attorney General. 

After Act 1, as subsequently modified by the Louisiana 

Legislature, was approved by the Attorney General, plaintiffs 

amended their complaint to withdraw their challenge to the 

reapportionment of the Louisiana House of Representatives. In 

addition, plaintiffs amended their complaint to assert a cause of 

action under the 1982 amendments to § 2 of the Voting Rights Act 

of 11965, 42 U.S.C..S 1973. 

By order dated March 7, 1983, this court reaffirmed Judge 

Collins' invalidation of Act 697. We granted plaintiffs' motion 

for class certification pursuant to Fed.R.Civ.P. 23(b) (2), 

designating a class of persons consisting of all black registered 

voters residing in the State of '‘toutsiana. Finally, we 

determined that 28 U.S.C. § 2284(a) vested in this court 

jurisdiction to entertain plaintiffs’ statutory and  



constitutional claims. Trial was held from March 7 through March - 

10, 1983. Decision was deferred pending briefing and oral 

argument. Having considered the evidence adduced at trial, 

together with the pleadings, briefs, and oral argument of 

counsel, the court enters the following findings of fact and 

conclusions of law in conformity with Fed.R.Civ.P. 52(a). 

  

Findings of Fact 

Every ten years a reapportionment? of existing congressional 

districts is compelled by Article I, § 2 of the United States 

Constitution and by Article 3, § 1 of the Louisiana Constitution 

of 1974. In 1972, Louisiana's eight congressional districts were 

realigned based on data developed in the 1970 census. At that 

  

2. A technical distinction has been drawn between the terms 
"apportionment® and "reapportionment," on the one hand, and’ 
districting” and "redistricting" on the other: 

« « « apportionment and reapportionment 

involve the allocation [by Congress] of a 
finite number of representatives among a fixed 
number of pre-established areas. Districting 
and redistricting . . . refer to the processes 
by which the lines separating legislative 
districts are drawn (by the states]. 

    

  

Backstrom, Robins and Eller, Issues in Gerrymandering: An 
Exploratory Measure of Partisan Gerrymandering Applied to 
Minnesota, 62 Minn.L.Rev. 1121, 1121 n.l (1978). See Carstens v. 
Lamm, 543 F.Supp. 68 (D.Col. 1982) (three-judge court); R. 

Morrill, Political Redistricting and Geographic Theory at 2 

(1981). To facilitate discussion, however, these terms will be 

utilized interchangeably. 

   



time the ideal district population was 455,580 persons. While 

the state remains entitled to eight representatives following the 

1980 census, the ideal district population has increased to 

525,497 persons.3 

The issue before us principally involves the New Orleans 

metropolitan area, which encompasses the parishes of Orleans, 

Jefferson, St. Tammany, Plaquemines and St. Bernard. The 1980 

census figures reveal pronounced demographic changes in this 

area. 

  

3: The following table sets forth the 1980 population, 
percentage of black population and percent of deviation in the 

eight 1972 districts: 

Louisiana Congressional Districts 
1980 Census 

1972 Plan 

District Population Black § Deviation 
  

523,271 36.5 
461,802 40.7 
571,131 14.6 
508,593 31.9 
507,539 32.1 
577,140 29.6 
543,235 20.1 
511,261 33,2 

Given the near-absolute mathematical precision with which 

congressional districts must be defined, Karcher v. Daggett, 51 

u.S.L.W. 4853 (U.S.Sup.Ct., June 22, 1983), the districts 

delineated in the 1972 plan fail to satisfy the equal 

representation standard of Article 1, § 2. See Pretrial 
Stipulation at 4 ("Under the 1980 census, the 1972 apportionment 

plan for congressional districts was significantly 

malapportioned, as to all districts except the First. . . ."). 

   



  

  
During the decade of the 1970s, Orleans Parish (coterminous 

with the City of New Orleans) experienced a marked change and a 

slight decline in population. 4 While overall population 

declined, the black population increased. The city/parish now 

has a black population of 308,039 persons, which constitutes 55% 

of the total population, 48.93% of the voting age population, and 

44.89% of the registered voters. With the exception of affluent 

white neighborhoods located in the city's Garden District and 

French Quarter, along the lakefront, and near Tulane and Loyala 

Universities, the black populace is largely concentrated in one 

contiguous expanse of the inner city. ; 

By contrast, the predominantly white, suburban parishes of 

Jefferson and St. Tammany, which flank the central city, have 

undergone explosive population growth.3 According to the 1980 

  

4 ° f 3 

Orleans Parish 

Census Population No. of Ideal Districts 
  

  

1980 557,482 1.06 
1970 593,471 1.30 
1960 627,525 1.54 
1950 570,445 ] 1.70 
1940 494,537 vil AniBd 
1930 458,762 X.75 

5. 

Jefferson Parish 

Census Population No. of Ideal Districts 
  

  

1980 454,592 0.87 
(footnote continued) :  



  
census, Jefferson Parish, with a 13.9% black population, a 13.75% 

black vosing age population, and a 10.45% black voter 

registration, is nearly 87% the size of the ideal congressional 

district. Unlike Orleans Parish, Jefferson Parish's black 

population is diffused throughout the parish. Prior to the 

recent demographic shifts, New Orleans had enough people to form 

the dominant majority in two congressional districts. Now only 

1.06 times the size of the ideal district, as defined by the 1980 

census, New Orleans' traditional dominance of two congressional 

districts is no longer supported by its population. 

Under the 1972 redistricting plan, the First Congressional 

District, presently represented by Robert Livingston, encompassed 

St. Bernard, Plaquemines and St. Tammany Parishes, together with 

the lakefront, eastern Mid-City, Algiers and New Orleans east 

sections of Orleans Parish. An overlay of the 1980 census data 

to that district, as configured under the 1972 plan, reflects a 

36.5% black population and 28.4% black voter registration. The 

Second Congressional District, presently represented by Lindy 

Boggs, covers those portions of Jefferson Parish to the south 

(West bank) and immediately north (East Bank) of the Mississippi 

River, as well as New Orleans' central business district, French 

  

1970 338,229 0.74 
1960 ,208,769 0.51 
1950 103,873 0.31 
1940 50,427 0.17 
1930 40,032 0.15 

sulla i i i Sele ck Sa 
   



Quarter, Uptown or Garden District and western Mid-City, all 

situated within the boundaries of Orleans Parish. Application of 

the 1980 census data to the 1972 boundaries of the Second 

District shows that 49.73. of the population and 34% of the 

registered voters are black. See Exhibit "A" attached. 

Legislative History of Act 20 
  

Early in 1981, members of the Louisiana House and Senate 

research staffs were instructed to collate the 1980 population 

data compiled by the United States Bureau of the Census, and to 

ascertain the extent of malapportionment, if any, under the 1972 

plan. With the assistance of the Louisiana State University's 

Division of Research Services, House and Senate research staffs 

converted the data thus obtained from a census ‘tract to a 

political subdivision, or precinct, basis. These validated data, 

referred to as the Weber data, included population and voter 

registration figures, and provided the exclusive data base for 

congressional redistricting in both houses. 

Recognizing the need for realignment of the state's 

congressional districts, the legislature established the 

Louisiana House and Senate Joint Congressional Reapportionment 

Committee, In July, at the close of the regular 1281 session, 

each house appointed legislators to hoc congressional 

reapportionment subcommittees functioning under the jurisdiction  



of two standing committees, the Senate Committee on Senate and 

Governmental Affairs and the House Committee on House and 

Governmental Affairs. Senator Thomas H. Hudson chaired the 

Senate Congressional Reapportionment Subcommittee; Representative 

John W. Scott chaired its House counterpart. There were four 

black legislators on the joint committee. No black legislator 

was appointed to either subcommittee. 

State-wide public hearings soliciting citizen input were 

conducted by the subcommittees from July through October 1981. 

One of the principal issues debated in the various fora concerned 

the possibility of fashioning a district centered in Orleans 

Parish, which, as the 1980 census data reflected, had a black 

population of 55%. Representative Richard Turnley, in his 

capacity as Chairman of the Louisiana Legislative Black Caucus, 

testified before the joint reapportionment committee in support 

of the proposition that the state's minority constituency would 

be best served by the structuring of an Orleans Parish-based 

district which maintained the cohesiveness of the metropolitan 

black community. Minutes of several public hearings held in 

August 1981 reveal that other legislators, both white and black, 

6 shared this view. Other considerations identified as important 

  

6. Contending that oral or written statements uttered in the 
context of public hearings before the joint committee and 
subcommittees are hearsay, defendants contest the admission of 
transcripts, or minutes, of these meetings. We disagree, finding 
(footnote continued) 

10  



to the reapportionment process were compactness, contiguity, 

respect for parish lines, and a recognition of ethnic, cultural 

and geographic differences. 

Based on the recommendations of legislative counsel, the 

House subcommittee promulgated several rules for the designing of 

congressional districts.’ Embodied in these rules were the 

  

that the transcripts fall within the public record exception of 
the hearsay ‘rule. Fed.R.Evid. 803(8). Under Rule 803(8) (A), the 
following are not excludable as hearsay, even though the 
declarant is available as a witness: 

Records, reports,” statements, or data 
compilations, in any form, of public offices 
or agencies, setting forth (A) the activities 
of the office or agency. 

Plaintiffs' Exhibits 1 through 9, inclusive, are records of 
regularly-conducted sessions of a joint committee and 
subcommittees of the Louisiana Legislature and, as such, are 
admissible as evidence of the facts to which they relate without 
foundational testimony. . Jo Weinstein and M. Berger, 4 
Weinstein's Evidence ¢ 803(8) [01] (1981). There is no challenge 

- to the authenticity of these records. We have not considered 
statements presenting double hearsay problems. With this 
exception, written and oral statements contained in the minutes 
of the various public hearings are admissible as evidence of the 
matters asserted. 

  

7. In presenting their proposed redistricting guidelines to the 
House subcommittee at the July 23, 1981 public meeting in Baton 
Rouge, counsel advised members that racial considerations must 
play a key role in reapportionment, and that mincrity voting 
strength could not be dissipated through the fragmentation of 
significant minority population concentrations. Minutes of July 
23, 1981 Public Hearing Before the House and Governmental Affairs 
Subcommittee, pp. 159-174. David Poynter, Clerk of the House 
Representatives, warned that: 

[olne concern of the courts is the existence 
of a predominantly black neighborhood or area 
with a sufficient amount of population to 

(footnote continued) 

11  



principles of strict compliance with the "one-person, one-vote" 

axiom, allowing for a maximum deviation of only .5%, and the 

unacceptability of any proposal shown to have either the goal or 

the effect of diluting minority voting strength. Identical 

criteria were endorsed by the Senate subcommittee. During the 

first joint meeting on August 21, 1981, these quidelines were 

formally adopted. 8 

  

justify a district where it becomes apparant 
- [sic] that the effect was to carve up that 
group of people in such a way as to put them 
in two or three separate districts and make it 
impossible to elect a black representative. 
That probably without any question is 
impermissible. 

1d. at 190. 

8. Rule I of the Joint Legislative Committee on Reapportionment 
Proposed Rules for Congressional Reapportionment, as approved by 
the Joint Committee on August 21, 1981, stipulates that: 

Y. Equality of population of 
congressional districts insofar as is 
practicable is the goal of congressional 
reapportionment. 

1l.A. Deviations from the "ideal 
district" population should be justifiable 
either as a result of the limitations of 
census geography, or as a result of the 
promotion of a constitutionally acceptable 
rational state policy. 

1.8. In order to meet constitutional 
guidelines for congressional districts, any 
plan, or proposed amendment thereto should 
conform to a relative deviation range of one 
(1%) percentum, or a relative deviation of 
+/=- 1/2 of one (.5%) percentum. 

(footnote continued)  



Several groups submitted proposals to the joint committee or 

the two subcommittees, among them Governor Dave Treen and the 

9 None of the Governor's Louisiana congressional delegation. 

three proposed plans, denominated Treen A, B, and C, contemplated 

a majority black district.l10 During this period the Governor 

  

According to Rule IV, also approved by the Joint Committee: 

1. The dilution of minority voting 
strength is contrary to public policy. The 
right of meaningful political participation of 
minority citizens is recognized. Accordingly, 
any proposed apportionment plan, or amendment 
thereto, demostrated [sic] to have the 
objective or consequence of diluting the 
voting strength of minority citizens is 
unacceptable. : 

9. On behalf of all eight of Louisiana's congressional 
representatives, Congressman William Tauzin presented a proposed 
reapportionment plan to the joint committee at its August 21 
organizational meeting. Several districts within this plan 
exceeded the population deviation ceiling prescribed by the 
committee's reapportionment ‘rules. Albeit invited to submit a 
plan which rectified this deficiency, the delegation as a whole 
did not do so. 

10. Black and white population percentages in the eight 
congressional districts created by Treen plans A through C are: 

3 WHITE 

District Proposal A Proposal B Proposal C 

65.8 ; 65.8 65.8 
54.6 54.6 54. 
83.6 3 84.0 83. 
67.1 : 66.7 67. 
67.5 y 587,8 67. 
70.1 70.1 70. 
77:7 76.7 71. 
67.6 68.5 74. 

    

(footnote continued)  



publicly expressed his opposition to the concept of a majority 

black district, stating that districting schemes motivated by 

racial considerations, however benign, smacked of racism, and in 

any case were not constitutionally required. 

Guided by the joint committee's reapportionment criteria and 

the views articulated at the public hearings held throughout the 

summer and fall of 1981, the Senate research staff prepared more 

than 50 plans. The staff was directed to formulate a plan 

containing an Orleans Parish-dominated district. Such a district 

would necessarily have a black majority population. Michael 

Baer, Secretary of the Senate and the official charged with 

supervising legislative drafting procedures, ensured compliance 

with such well-established reapportionment guidelines as 

one-person, one-vote, compactness, respect for the integrity of 

geographic boundaries, preservation of communities of interest, 

and non-retrogression. Partisan political concerns also figured 

prominently in the confection of the various plans, among them 

  

$ BLACK 

District Proposal A " Proposal B Proposal C 

32.0 32.0 32.0 
43.5 43.5 43.5 
14.3 13.8 14.3 
31.6 32.0 4 31.6 
31.9 31.9 32.9 
28.8 28.8 28.8 
21.5 22.7 : 28.3 
31.8 30.6 24.9 

  
    

 



the desires of Jefferson Parish political leaders, including Tax 

Assessor Lawrence C. Chehardy, for the creation of a district 

composed primarily of that parish. 

To achieve these goals, the Senate staff developed a plan 

which, as the result of the sponsorship of Senator -Samuel B. 

Nunez, Jr. of St. Bernard Parish, would subsequently be referred 

to as the "Nunez Plan." See Exhibit "B" attached. As drafted, 

this plan envisaged one black and seven white population majority 

districts. Nunez's proposed First Congressional District, 72% of 

which was made up of JeffersqQn Parish, combined that area of the 

parish lying west of the Mississippi River with Orleans Parish's 

Ward 15, and the parishes of Plaquemines and St. Bernard. The 

proposed Second Congressional District consisted almost entirely 

of Orleans Parish (94.9%), together with 25 contiguous precincts 

drawn from east Jefferson Parish. St. Tammany was restored to 

the Sixth Congressional District, from which it had been excised 

during the 1960s. By allocating separate districts to majority 

black, urban Orleans Parish and virtually all-white residential 

Jefferson Parish, Nunez took into account the divergent, 

frequently antithetical, concerns of city and suburban dwellers, 

as well as parish lines and the natural geographic barrier 

erected by the Mississippi River. Utilizing 1980 census figures, 

Nunez's Second District would be 54% black in population and 43% 

black in voter registration. The First District would have a  



black population of 17.9% and a black voter registration of 

128.11 

On the the House side, the legislative staff devised a plan 

which largely adhered to parish lines and left intact the 

concentration of blacks residing in Orleans Parish. Named for 

its sponsor, Representative Scott, this plan envisioned a 50.2% 

black population majority and 44% black registered voter 

population in the Second Congressional District, and a 22.5% 

black population and 17% black registered voter population in the 

First District. 

Governor Treen summoned the legislature into extraordinary 

session on November 2, 1981 for the purpose, inter alia, of 
  

legislative and congressional reapportionment. Various bills to 

reapportion the eight congressional districts were filed on the 

first day of the session, among them the Nunez Plan, introduced 

  

1. The population deviations and percentages of black 
population and voter registration for each of the eight 
congressional districts formed by the Nunez Plan are: 

; $ Black Reg. 
Dist. Total Pop. $ Deviation 3 Black Pop. voters 

526,666 0.22 17.9 13.0 
525,135 0.07 54.0 43.5 
525,581 - 9.02 21.3 18.8 
525,067 v.08 31.6 22.3 
525,656 0.04 31.1 24.5 
525,074 0.08 22.8 17.5 
523,847 n.31 20.0 16.8 
524,953 0.11 36.9 30.3 

    

d
O
 W
N
 

16  



in the Senate by Senators Nunez and Tiemann as S.B. 5, and the 

Scott Plan, introduced in the House by Representative Scott as 

H.B. 2. Of all bills referred to the standing Senate and House 

committees on governmental affairs, only S.B. 5 and H.B. 2 

received favorable committee action. 

Members of the Louisiana Black Caucus united with the 

Jefferson Parish forces, led by Nunez and Chehardy, in urging 

passage of the Nunez Plan. That Nunez and Chehardy were 

principally concerned with establishing a district controlled by 

predominantly white Jefferson Parish was of little import 0 

black legislators, who advocated the plan's concomitant formation 

of a majority black district in Orleans Parish. On November 4, 

1981, S.B. 5 was reported out of committee with minor substantive 

amendments and onto the Senate floor, where it was passed by a 

vote of 31 to 6. A move to amend S.B. 5 to substitute Governor 

Treen's Plan A was defeated, and S.B. 5 was sent to the House for 

further action. 

H.B. 2 was simultaneously reported out of House committee 

and placed on the House calendar on November 4, 1981, along with 

an amendment to substitute Governor Treen's Plan B for the Scott 

Plan. The House Committee on House and Governmental Affairs 

received S.B. 5 on November 5, 1981, but declined to amend H.B. 2 

to adopt the Senate bill. Representative Charles Bruneau, a 

member of the committee, testified that his vote in committee °  



against S.B. 5 resulted from the plan's abandonment of urban New 

Orleans' l30-year tradition of electing two congressmen. 

In proceedings before the full House on Friday, November 6, 

the representatives declined to amend H.B., 2 to substitute Treen 

Plan B. Despite the Committee on House and Governmental Affairs’ 

previous rejection of S.B. 5, the House then voted 61 to 38 to 

adopt the Nunez Plan by engrafting it on H.B, 2 and dispatched 

the newly-amended H.B. 2 to the Senate. Some of the 38 negative 

votes stemmed from the perception that New Orleans would "lose’ 

control of a seat under the Nunez PLan.l2 Also cited was the 

antagonism of a number of legislators toward the drawing of a 

district whose racial composition would facilitate the election 

of a black congressman. Representative Mary Landrieu testified: 

There were people that supported that plan 
(Nunez Plan], like myself, because we wanted 
to be aggressive and pushing for a black 
district or a district where minority voting 
strength would be encouraged. And so there 
were people on the opposite side who didn't 
feel they wanted to have a district that would 
be able to elect a black representative. 

Record, Vol. III at 49. 

  

12. Regardless of the sincerity with which it is held, the 
legislators' conviction is no longer valid. The population of 
Orleans Parish, the region's nodal center, has historically been 
large enough to control two congressional districts. Given the 
loss of approximately 36,000 people over the last decade, and the 
concomitant increase in the ideal district population of 
approximately 70,000 people, Orleans Parish's population is now 
only 1.06 times larger than the ideal district required by the 
1980 census data. See p. 7, supra. 

18  



Both houses of the Louisiana Legislature had thus approved 

reapportionment bills incorporating the Nunez Plan in its 

entirety, although the House Bill inadvertently left out one 

precinct. Upon learning of the action of the legislature, 

Governor Treen announced his intention to veto the Nunez Plan if 

finally passed, !3 : 

Proponents of the Nunez Plan were keenly aware of the 

implications of the Governor's promised veto. Louisiana's chief 

executive has considerable power and influence, both de jure and 

de facto. Testimony reflects that the Louisiana Legislature has 

never overridden a gubernatorial veto. A sufficient number of 

legislators changed their position in response to the threatened 

veto to assure the demise of the Nunez Plan. 

Because of his decisive role in the defeat of the Nunez Plan 

“after it had received the overwhelming support of both houses of 

the legislature, Governor Treen's stated reasons for acting are 

relevant. At trial, the Governor outlined the considerations 

  

13% According to Article 3, §§ 17 and 18 of the Louisiana 

Constitution of 1974, a bill has the force and effect of law only 

if passed by both houses of the legislature and delivered to the 

governor within three days of passage with the signatures of the 

presiding officers, and the governor either signs it or fails to 

sign or veto it within ten days after delivery if the legislature 
is in session, or within 20 days if adjourned. Hence the 

legislature has no authority "to create congressional districts 

independently of the participation of the Governor as required by 
the state constitution with respect to the enactment of laws." 
Smiley v. Holm, 2835 U.S. 335, 373 (1932). 
  

19  



which prompted his objection to the Nunez Plan. He described as 

unfair the submergence of St. Bernard and Plaquemines Parishes 

under Jefferson Parish, albeit acknowledging that the populations 

of these two coastal parishes would constitute only a minor 

portion of any district. The Governor also wished to maintain 

existing district configurations where possible, protect the 

incumbent, Livingston, and retain Orleans' traditional influence 

in the selection of two representatives. 

Another concern of the Governor related to racial 

polarization, which he perceived to be an inevitable consequence 

of the deliberate sculpting of districts along racial lines. He 

denounced any legislative scheme which. intentionally drew 

boundary lines so as to consolidate a majority of one race within 

a single district. He specifically ,rejected the Nunez Plan, 

which would create a 55% black district, for this reason. In the 

state's § 5 submission to the Justice Department, prepared by 

counsel and approved by the Governor, this plan was characterized 

as an attempt by the Louisiana Legislature to enact into law the 

discredited idea of proportional representation. 

These concerns were restricted to the aggregation of blacks 

within one district; the coalescence of whites was not regarded 

as ominous so long as Congressman Livingston's chances for 

f 

re-election were maximized. An Orleans-based district with a 55% 

black population was not acceptable to the Governor. As later 

20  



  

noted, an Orleans-based district with a 55% white population 

encountered no objection. 

The court finds that the Governor's opposition to the Nunez 

Plan was predicated in significant part on its delineation of a 

majority black district centered in Orleans Parish. 

On the morning of November 9, 1981, the Governor announced 

his Reconciliation Plan, cognomened Treen Plan X. Substantially 

similar to the alternatives previously rejected by the 

legislature, Plan X provided for eight majority white 

districts.l4 That afternoon the House reversed its position on 

the Nunez Plan and, by a vote of 79 to 22, substituted the 

Reconciliation Plan as the text of S.B. 5. As thus amended, S.B. 

5 was returned to the Senate and was there soundly rejected, 

throwing the matter into conference committee, 

Appointment of a conference committee was deferred until a 

compromise acceptable to the Governor could be fashioned. Senate 

  

14. Under Treen Plan X, total population and black and white 

population percentages for each of the eight districts are: 

District Total Population % White $ Black 
  

525,669 68.86 28.87 
525,885 53.36 : 44.75 
526,734 82.30 gh 15.63 
525,067 67.05 31.61 
525,668 68.25 31.15 
524,738 73.00 25.90 
525,186 79.17 20.09 
525,025 61.96 i 37.47  



President Michael O'Keefe of New Orleans summoned "interested" 

parties to a private meeting in the Senate Computer Room, 

situated in the sub-basement of the State Capitol. Present at 

varying times were Senators Nunez, O'Keefe and "Hank" Lauricella 

of Jefferson Parish, Assessor Chehardy, Jefferson. Parish 

Representative John Alario, Louisiana A.F.L.-C.I.O. President: 

Victor Bussie, Congressman Gillis Long, congressional aides to 

Boggs, Long and Tauzin, and members of the Senate administrative 

staff. Black legislators were not invited, those responsible for 

calling the gathering having ‘decided that the goal of crafting 2 

district with a high minority profile would have to be abandoned. 

A plethora of factors was considered at the meeting. Nunez 

and Chehardy vigorously urged a district dominated by Jefferson 

Parish. Treen Plan X, which split the parish three ways, was 

discarded at the outset of discussions. Also stressed was the 

necessity of fulfilling the Governor's objective of guaranteeing 

the re-election of Congressman Livingston by adding enough white 

suburban voters to the First District to offset the impact of 

inner city blacks votes, as well as the desire of several 

congressmen and state representatives to solidify incumbent 

Boggs' electoral base by drawing a district as favorable as 

possible for her. An obvious consideration was the concentration 

of blacks in New Orleans and the racial composition of the Second 

District. Albeit resolved to avert any retrogression of the  



  

  

approximately 40% black population in this district, as 

configured under the 1972 plan, the goal of fashioning a district 

which was at least 55% Jefferson Parish militated against raising 

substantially the black population ‘percentage of that district. 

Hence the participants determined that the minority's interest in 

obtaining a predominantly black district would have to be 

sacrificed in order to satisfy both the Governor and the 

Jefferson Parish group. As Chehardy candidly explained: 

« « « the feeling in the meeting was that the 
one group, the one contingency group that was 
not going to come out of the session satisfied 
was going to be the blacks. The reason for 
that was that with all of the competing 
interests . . . there was probably going to be 

. virtually no way to satisfy the black members 
of the Legislature . . . insofar as creating a . 
majority black district [was 
concerned]. . . . They (minority legislators] 
didn't have enough votes. 

Record, Vol. III at 28, 

Working late into the evening, the sub-basement conferees 

ultimately arrived at that synthesis of conflicting interests 

incorporated into Act 20. See Exhibit "C" attached. Jefferson 

Parish constitutes approximately 55% of the Second District under 

the Act; portions of Orleans Parish make up the remainder. St. 

Tammany, St. Bernard and Plaquemines parishes, together with the 

lakefront: New Orleans east, and Algiers sections of Orleans 

t 
Parish, are placed within the First District. The jagged line 

dividing the First and Second Districts commences in the east 

23  



below the west bank of the Mississippi River, casting Ward 15 and 

Plaquemines Parish into District One, Traversing the 

Mississippi, the line runs north for approximately 15 blocks and 

juts sharply to the east to sever the southern extremities of 

wards 8 and 9, gathering predominantly white neighborhoods within 

District One. Veering north through the midsection of Ward 9, 

then west through Wards 9, 7, and 8, the line sweeps the 

densely-populated black community of central New Orleans into 

District Two, and the adjoining white neighborhoods which border 

Lake Ponchartrain into District One. Moving south and west, the 

line fractures Wards 5, 4,3,°'and 2 to separate white and black 

areas into Districts One and Two, respectively. Ward 14, which 

is 90% white, is aligned within District One. Tracing a 

northwesterly path along the east bank of the Mississippi, the 

line extends north to dissect a discrete black concentration on 

Carrolton, joining one part with an expanse of white population 

in Jefferson Parish. The total population, percent deviation 

from the ideal population, percent black population and percent 

black registered voters for each district created by Act 20 are 

as follows: 

% Zack Reg. 
Dist. Total Pop. $ Deviation $ Black Pop. yoters 
    

525,319 - 0.03 23.5 21.5 
526,605 0.21 44.5 38,7 
526,364 0.17 15.2 be 71847 

24  



525,067 0.08 31.6 22.3 
525,668 0.03 31.2 24.6 
524,374 0.21 25.1 18.1 
525,186 0.06 20.1 16.9 
525,389 0.02 38.3 21.9 

District boundaries fixed by Act 20 are clearly racial in 

character, selectively segregating white and black residents of 

New Orleans into the majority white First District and the more 

heterogeneous Second District. When traced on a map of the city, 

that portion of the Second District which cuts into Orleans 

Parish resembles the head of a duck, with the bill splintering 

ward 9, a contiguous black community of approximately 94,000 

people. Ward 8, which also contains a high concentration of 

blacks, was sliced three ways, with the extreme northern 

(lakefront) and southern segments assigned to District One and 

the midsection to District Two. Although other black wards are 

fragmented, the integrity of predominantly white wards is 

assured. Of the 31 metropolitan precincts with a black 

population of 95% or higher, most of which are situated precisely 

on the duck bill, 17 were placed in District One and 14 were 

placed in District Two. Act 20's racial boundary line separates 

cohesive black neighborhoods in the inner city which share common 

political and socio-economic interests premised on income, 

transportation, education and housing. Similar disruption of 

white neighborhoods is minimal. 

Senate Secretary Baer, who with Senate staff member Nancy  



  

Barringer was charged with producing a plan reconciling the 

disparate interests of the sub-basement conferees, candidly 

restified that neutral apportionment guidelines heretofore 

applied in drafting the Nunez Plan were jettisoned in the effort 

to attain a compromise .l3 Districts One and Two of Act 20, with 

their distorted shapes and irregular, indented perimeters, are 

not geographically compact. These aniisusl configurations are not 

necessary to ensure adherence to the one-person, one=-vote 

rubric. In contrast to the Nunez Plan, Act 20 deviates from the 

natural geographic barrier fotmed by the Mississippi River, which 

separates an enclave of inner city blacks from whites residing in 

suburban areas. 

New Orleans' traditional political sub-unit, the ward, 18 has 

  

15, It is important to emphasize that our comparison of the 

effects of the Nunez Plan and Act 20 intimates no view of the 

former as the final expression of state redistricting policy. 

Both the Governor and the legislature are integral components of 

the legislative process; thus any plan that does not survive this 

process to become law must be regarded as "proffered current 

policy" which, though entitled to thoughtful consideration, 

cannot be deemed a clear articulation of established state 

goals. See Sixty-Seventh Minnesota State Senate v. Beens, 406 

U.S. 187 (1972); Carstens v. Lamm, 543 F.Supp. 68 (D.Colo. 1982); 

Shayer Ye Kirkpatrick, 541 F.Supp. 922 (W.D.Mo. 1982) 

(three-judge court); O'Sullivan Vv. Brier, 540 F.Supp. 1200 

(D.Kan. 1982) (three-judge court). Courts have nonetheless 

recognized that the farther a bill progresses in the legislature, 

the more probative it is of a discrete state policy. Shaver v. 

Kirkpatrick; Skolnick v. State Electoral Board, 336 F.Supp. 839 

(N.D.I1l. 1971) (three-judge court). Having so observed we note 

that the first article of the Louisiana Civil Code declares: 

"Law is a solemn expression of legislative will.” 

  

  

  

  

  

(footnote continued)  



been selectively fragmented by Act 20. Black population 

  

16. Judge John Minor Wisdom described the origin and political 
significance of the ward in Taylor v. McKeithen, 499 F.2d 893 
{5th Cir. 1974): 

  

A ward in New Orleans traditionally means 
as much to its residents as a parish or county 
does to its residents. The City has been 
divided into wards since 1805, and most of the 
ward boundaries are far more ancient than any 
question of Negro voting strength. 

* * * 

The direct ancestor of the present ward 
structure was adopted in 1832, Ward 
boundaries have been changed since then only 
by the addition of new wards to accommodate 
areas newly incorporated into the city, except 
for a minor change in 1878 to correct an 
anomaly and a major change in 1880 when a 
substantial area was taken from the sixth ward 
and added to the fourth and fifth. The change 
of 1880 was the last change in the ward 
boundaries to date. The Home Rule Charter of 

. the City for 1954 has the same ward boundaries 
as its predecessor, the charter of 1912. 

* * * 

The first function of the wards was to 
serve as the districts from which were elected 
the aldermen who formed the governing council 
of the City. Since then, they have been used 
as the basic units of apportionment for 
representatives in the United States Congress, 
for presidential electors, for state senators 
and representatives, for judges and lesser 
officials of the city courts, for city 
councilmen, for tax assessors, and for the 
members of the numerous central or regional 
committees «hich form the statutory structure 
of the political parties. The wards have 
structured working levels of political 
organizations. Parties and factions have 
generally been organized along ward lines with 

(footnote continued) : 

27  



concentrations within most of the nine Orleans Parish wards split 

by the Act have been disrupted, whereas white concentrations 

remain essentially inviolate. Not a single ward is divided under 

the Nunez Plan. 

By disregarding parish lines and uniting populated segments 

of Orleans and Jefferson parishes with mutually exclusive, often 

discordant needs and concerns, Act 20 effectively ignores both 

historic boundaries and obvious communities of interest. Since 

Jefferson Parish comprises the majority of Act 20's First 

District, the interests of the more conservative, suburban white 

populace have effectively eclipsed those of the less 

conservative, urban blacks who make up only 17.9% of the 

district's population. 

once completed, the new plan was submitted to Governor Treen 

for review. After the Governor accepted the plan on November 11, 

1981, Senators Hudson, Nunez and O'Keefe, and Representatives 

  

ward leaders as major political powers. 

Moreover, the wards are real and 
important parts of the city's life and 
culture, Residents of the City are likely to 
speak of themselves as living in the Twelfth 
Ward, or the Seventh, or the Fourteenth, say 
in contexts quite apart from politics; indeed, 
in the same way that one would say that he 
lived in Marigny or in the Irish Channel or 
the lower Garden District. he 

Id. at 904-05 (footnotes omitted). Evidence adduced at trial 
confirmed Judge Wisdom's assessment of the New Orleans political 
scene, $i  



Scott, Bruneau and Alario were appointed to a formal conference 

committee. None of these individuals is black. 

A public meeting was convened by the committee for the 

purpose of preparing a conference report on proposed Act 20. 

Representatives Diana Bajoie, John Jackson, Alphonse Jackson and 

Henry Braden, members of the Legislative Black Caucus, voiced 

strenuous objection to the compromise plan, all arguing that a 

majority black district encompassing Orleans Parish was necessary 

to enable minority voters to elect a representative of their 

choice. The testimony of Representative Turnley and New Orleans 

Mayor Ernest N. Morial, both black, illustrates that the 

consensus of opinion among the state's minority leaders was that 

Act .20 was inimical to the interests of Louisiana's black 

constituency. Following an abortive attempt by Representative 

Scott to amend S.B, 5 oO expand the Second District's black 

population to 50.2%, the compromise provision was adopted by the 

committee by a vote of 4 to 2, with Representatives Scott and 

Alario dissenting. 

On November 12, 1981, the House and Senate adopted the 

conference committee report. Governor Treen signed this bill 

into law on November 19, 1981, and it became Act 20 of the First 

Extraordinary Session of 1981.  



    

Voting Patterns and Polarization 
  

There is a substantial degree of racial polarization 

exhibited in the voting patterns of Orleans Parish. By inserting 

the 1980 census data in a computerized, step-wise regression 

program, Dr. Gordon Henderson, plaintiffs’ expert, empirically 

measured the extent of racial bloc voting in 39 Orleans Parish 

elections between the years 1976-82. This program first employed 

‘a regression equation to predict the number of votes cast for a 

black candidate by registered black voters in a specific 

precinct. Another statistical tool, a Pearson correlation 

coefficient, was then used to examine all conceivable 

relationships between a single dependent variable, votes in favor 

of a black candidate, and several independent variables, inter 

alia, the number of black registered voters and total population 

per precinct, in order to isolate the one variable which most 

accurately explained why those votes were received. The 

coefficients derived by plaintiffs' expert demonstrate an almost 

perfect correlation between a candidate's race and that of the 

voters who manifested a preference for his or her candidacy at 

the ballot box. 17 . 

  

17. For each of the 39 elections studied, the correlation 

coefficient, or statistical measure of the strength of the 
relationship between the votes received by black candidates and 

the number of black registered voters, white registered voters or 
white persons, coupled with the number of precincts from which 

data were obtained, were listed by Dr. Henderson as follows: 
(Eootnote continued) : 

30  



Plaintiffs’ quantitative showing of 

  

Date 

8/3/79 
4/7/79 
10/27/79 
10/27/79 
12/8/79 
12/8/79 
4/4/81 
5/16/81 
10/17/81 
10/1/77 
10/1/77 
10/1/71 
10/1/77 
4/30/77 
4/5/80 
5/17/80 
9/13/80 
9/13/80 
8/4/78 
9/16/78 
9/16/78 
11/7/78 
8/14/76 
8/14/76 
10/2/76 
10/2/76 
11/2/76 
11/4/80 
4/1/78 
11/4/80 

2/6/82 
3/20/84 
2/6/82 ¢ 
3/20/82 
2/6/82 
3/20/82 
2/6/82 

Qffice 

Black 

Req. Voters 

polarization 

  

.87 

.89 

.94 
«65 

Judge, District H 
Judge, District H 
Judge, Section E 
Judge, Section C 
State Senate, 6th Dist. 
Judge, Section E 
Councilman "D" 
Councilman "D" 
Judge, Section C 
Mayor 
Councilman-at-Large 
Councilman "B" . 
Clerk, Crim, Dist, Ct, 
Assessor, 4th Dist. 
B3.2.S.B., 2nd Diss. 
B.E.S.E., 2nd Dist. 
School Board 
Judge, Section A 
State Senate, 4th Dist. 
Magistrate Judge 
Judge, Section B 
School Board 
Judge, Section C 
School Board 
Councilman-at-Large 
Councilman "B" 
School Board 
School Board 
State Senate, 4th Dist. 
Judge, Section A 

Req. Voters 
  

Civil Sheriff 
Civil Sheriff 
Mayor 
Mayor 
Judge, Section I 
Judge, Section I 
Councilman-at-Large 

(footnote continued) 

-.28 
-.32 
-.54 
-.54 
-.56 
-.48 
-.14  



  

buttressed by the testimony of trained political observers. 

Mayor Morial, now in his second term, has been actively involved 

in politics at the state and local levels since his election to. 

the legislature in 1967. He has been elected to positions in all 

three branches of government. Mayor Morial opined that racial 

bloc voting is prevalent in Orleans Parish. On the basis of a 

study of the literature relative to 18 elections conducted in 

Orleans Parish from 1960 to 1976, Dr. Richard Engstrom, a 

professor of political science at the University of New Orleans, 

found substantial evidence 3¢ voting along racial lines. With 

reference to the 1977 mayoral contest in which Mayor Morial 

prevailed, Dr. Engstrom opined that the New Orleans metropolitan 

  

2/6/82 Councilman "B" .86 -.45 90 
2/6/82 Councilman "D" «74 -.35 91 

According to Dr. Henderson, the range of a Pearson 
correlation coefficient, also known as a Pearsonian product 
moment correlation coefficient, is from -1.0 through 0 to +1.0. 
Coefficients of =-1.0 and +1.0 indicate a perfect relationship 
between two variables, In other words, a value of -1.0 or +1.0 
enables a statistician to perfectly predict one variable if he or 
she knows the value of the other. Coefficients of +.5 and higher 
are deemed statistically significant. Values of .7 or higher are 
extremely rare, and attest to a strong correlation between two 
variables. A coefficient with a value at or near 0, on the other 
hand, evidences a weak relationship. See generally, D. Baldus 
and J. Cole, Statistical Proof of Discrimination § 5.321 (1980); 
N. Nie, C. Hull, J. Jenkins, K. Steinbrenner and D. Bent, SPSS: 
Statistical Package for Social Sciences at 279-80 (2d. 1975). 

1 

The 39 coefficients calculated by Dr. Pearson range from 
+.51 to +.95, indicating that a candidate's race was the single 
variable most predictive of the number of votes received by that 
candidate. fond  



area was gradually becoming more polarized. Defense expert Dr. 

John Wildgen postulated, in a published study, that racial 

polarization determined the outcome in New Orleans school board 

elections. 

One explanation for the perceptible growth of racial 

polarization over the last 15 years, proffered by plaintiffs’ 

expert Dr. Ralph Cassimere, a professor of history at the 

University of New Orleans, is that as blacks have begun to gain 

access to elective office, white voters have rallied in 

increasing numbers to vote far candidates of their race. A lower 

margin of victory for black incumbents evinces a greater 

reluctance on the part of white voters to vote for a black. As 

Dr. Cassimere observed: 

« « « polarity is much more pronounced among 
whites in voting for black candidates. Black 
[voters] . . . traditionally have voted for 
white candidates. I think there is some 
feeling of illegitimacy about black 
candidates. 

Record, Vol. II at 119. 

In an effort to rebut plaintiffs' evidence of polarization, 

defendants introduced a statistical analysis of white cross-over 

voting in three recent New Orleans elections. This analysis, 

prepared by demographics expert Kenneth Selle, sampled returns 

from 37 all-white or black precincts and purported to demonstrate 

that race had no effect on the results of city-wide elections. 

Mr. Selle's use of an arbitrary, rather than the preferred random 

33  



method to select test precincts severely biases the results of 

his analysis. The units chosen are not representative of the 400 

or more precincts in New Orleans, and hence are not sufficiently 

predictive of voting patterns in the city at large. Some of the 

precincts culled were racially heterogeneous. Since it is 

impossible to ascertain, solely from the returns of a mixed 

precinct, whether individuals who voted for a particular 

candidate are black or white, data drawn from such precincts are 

of scant probative value. For these reasons, the court attaches 

little weight to defendants' cross-over analysis. 

Assuming, arguendo, that defendants had established the 

existence of a significant white cross-over vote in Orleans 

Parish, the court remains persuaded that racial polarization 

plays a significant role in the electoral process. The evidence 

shows that only those affluent, better-educated whites residing 

in the city's French Quarter and university districts are 

inclined to vote for a black candidate. This liberal, white 

constituency is unique to Orleans Parish. Similarly eclectic 

voting preferences cannot be anticipated in the adjacent suburban 

parishes, whose recently enhanced populations can be partially 

ascribed to the exodus from New Orleans of white families seeking 

to avoid court-ordered desegregation of the city's public 

schools. 

Nor does the fact that several blacks have gained elective  



office in Orleans Parish detract from plaintiffs' showing of an 

overall pattern of polarization. To the contrary, Mayor Morial 

attributes his victory in the 1982 mayoral race to his success in 

marshalling the black vote. Of the approximately 70 Orleans 

Parish officials elected throughout the parish, only 15% are 

black. A greater number of minority officeholders would be 

expected in a parish with a black population of 55%. 

According to the expert testimony, Louisiana's majority vote 

requirement, which ordains that a winning candidate must receive 

more than half the votes cast in an election, inhibits political 

participation by black candidates and voters in a racially 

polarized environment. Racial bloc voting, in the context of an 

electoral structure wherein the number of votes needed for 

election exceeds the number of black voters, substantially 

diminishes the opportunity for black voters to elect the 

candidate of their choice. Mr. Selle testified that in Louisiana 

a threshold black/white population ratio of 62/38 is a 

prerequisite to the creation of a "safe" minority district, or 

one in which the election of the candidate preferred by black 

voters is guaranteed. Conversely, a 50/50 ratio of black to 

white population gives rise to a safe white district.l® 

  

18. Demographic studies prepared by Mr. Selle were offered to 
show projected racial population growth between the 1980 and 1990 
censuses, Through these studies, defendants sought to prove a 
future increase in the black population percentage in Act 20's 
(Eootnote continued) 

35  



Discrimination: Past and Present 
  

Louisiana's history of racial discrimination, both de jure 

and de facto, continues to have an adverse effect on the ability 

of its black residents to participate fully in the electoral 

process. Dr. Ralph Cassimere traced that history to its genesis 

during the era of ‘slavery, when the franchise was conferred 

exclusively upon white males. With the advent of post-Civil war 

Reconstruction, black males were pesmitied to register. Between 

1868 and 1896 many black state legislators were elected. vo 

blacks were elected Lieutenant Governor and one, P.B.S. 

' pinchback, was selected by the state Senate to £ill a vacancy in 

that position and later served as Acting Governor. Pinchback 

subsequently was selected to serve in the United States Senate 

but was not seated. Three blacks claimed seats in the United 

States House of Representatives but only one, Charles E. Nash, 

was seated. Charles Vincent, Black Legislators in Louisiana 
  

  

Second Congressional District of close to 6.7% and, in the First 
District, of 1.5%. Given Mr. Selle's failure to distinguish 
blacks from a significant number of ethnic and racial groups 
subsumed within the Census Bureau's non-white category, and to 
apply his methodology in a consistent manner to all parishes 
within the targeted districts, the court finds these data highly 
suspect and inadequate to prove. that the Second District's black 
population percentage will increase significantly under the 

_ present Act. See Kirkpatrick wv. Preisler, 394 U.S. 525, 535 
(1969) ("[flindings as to population trends must be thoroughly 
documented and applied tnroughont the State in a systematic, not 
an ad hoc, manner."). 

   



  

During Reconstruction. Although black suffrage flourished from 

1867 to 1898, a gradual return to white supremacy culminated in 

the Louisiana Constitution of 1898. At that time, the state 

succeeded in imposing a "grandfather" clause, as well as 

educational and property qualifications for registration. These 

requirements combined to reduce black voter registration from 

approximately 135,000 in 1896 to less than 1,000 in 1907. 

Following the Supreme Court's invalidation of the 

grandfather clause in 1915, Guinn v. United States, 238 U.S. 347 
  

(1915), voters were subject -to an "understanding" clause which 

hindered black registration. Poll taxes were levied, and 

registration rolls purged. In 1923, the state authorized an 

all-white Democratic primary which functioned to deny blacks 

access to the determinative elections, naseuch as Republican 

opposition to the Democratic party in the general elections was 

nonexistent. This strategem persisted until its condemnation in 

Smith v. Allwright, 321 U.S. 649 (1944). Citizenship tests and a 
  

prohibition against anti-single shot voting were instituted in 

the 1950s. As a further obstacle to minority access, the 

legislature established a majority-vote requirement for election 

to party committees in 1959. For a quarter of a century, from 

1940 to 1964, the States Rights Party spearheaded a strong 

movement against black enfranchisement and judicially-directed 

desegregation. But for those declared unconstitutional by the  



Supreme Court, the various disenfranchisement techniques 

implemented by the state and its white majority parties 

suppressed black political involvement until banned by Congress 

in 1965.19 

Like other southern states, Louisiana enforced a policy of 

racial segregation in public education, transportation and 

accommodations. Despite the Supreme Court's ruling in Brown v. 

Board of Education, 347 U.S. 483 (1954), local school boards 
  

refused to desegregate in the absence of a federal court order. 

  

19. Statistics demonstrating the extent of black 

disenfranchisement between 1910 and October 1964, inclusive, have 

been compiled in Louisiana Politics at 299 (Bolner, ed. 1980): 

Black Voter Registration in Louisiana, 
1910-1964 

  

Est. Black $ Black 
Adult Pop. Adult Pop. 

Black Reg. (Most Recent Census) Reg. to Vote 

  

730 174,211 (Males) 
34533 359,251 
2,054 359,251 
1,591 ; 415,047 
1,981 415,047 - 

886 473,562 
1,672 473,562 

28,177 473,562 
107,844 481,284 
112,789 481,284 

152,578 : 481,284 
158,765 514,589 
150,878 514,589 
164,717 514,589 

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Even today, the federal courts are compelled to monitor schools 

around the state for compliance with Brown's teachings. A dual 

university system was operated by the state until 1981, when it 

was dismantled pursuant to a consent decree. Public facilities 

were not open to members of both races until the late 1960s. 

As a consequence of this history, separate white and black 

societies developed in Orleans Parish. Segregation was the norm 

in the private sector, as reflected in the parish's monochromatic 

neighborhoods, churches, businesses and clubs. Discrimination in 

employment was widespread. 

while direct impediments to black registration in voting 

have been eradicated, the residual effects of past discrimination 

still impede blacks from registering, voting or seeking elective 

. office in Orleans Parish. No black has been elected to statewide 

office in Louisiana in this century, nor has any served in 

Congress since the days of Reconstruction. Notwithstanding a 

black population of 29.4%, only 7% of Louisiana's elected 

officials are black. Current census figures disclose that blacks 

on the average earn less than whites; 95% of all persons with an 

income of less than $5,000 are black. Blacks in contemporary 

Louisiana have less education, subsist under poorer living 

conditions and in general occupy a lower socio-economic status 

than whites. Though frequently Aoze subtle, employment 

discrimination endures. These factors are the legacy of 

v  



historical discrimination in the areas of education, employment 

and housing. Such influences, in conjunction with past election 

practices excluding blacks from the political process, account 

for the present disparity between black voter registration and 

black population in Orleans Parish. From the evidence adduced, 

we are persuaded that they account for the lower black turnout at 

election time. A sense of futility engendered by the 

pervasiveness of prior discrimination, both public and private, 

is perceived as discouraging blacks from entering into the 

governmental process, 

Conclusions of Law 
  

Invoking its authority to enforce the substantive provisions 

of the Fourteenth and Fifteenth Amendments, Congress recently 

amended § 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973 

(1982), 20 Specifically designed to reach claims of voting 

  

20. H.R. 3112, amending § 2 to incorporate a "results" test and 
extend the 1965 Voting Rights Act, was passed by the House cn 
October 15, 1981. The Senate adopted the version of § 2 reported 
out of the Senate Committee on the Judiciary, S. 1992, on June 
13, 1982. On June 23, 1982, the House unanimously adopted the 
Senate bill. As signed into law by the President on June 29, 
1982, amended § 2 of the Voting Rights Act of 1965, 42 U.S.C. 
§ 1973, provides: : 

(a) No voting qualification or prerequisite to 
voting or standard, practice, or procedure 
shall be imposed or applied by any State or 
political subdivision in a manner which 
results in a denial or abridgement of the 
right of any citizen of the United States to ' 

(footnote continued) 

40  



dilution heretofore deemed beyond the ambit of § 2, Report on S. 

  

vote on account of race. or color, or in 
contravention of the guarantees set forth in 
§ 4(£) (2) [42 U.S.C. 8 1973(8){2)]}, as 
provided in subsection (b). 

(b) A violation of subsection (a) is 
established if, based on the totality of 
circumstances, it is shown that the political 
processes leading to nomination or election in 
the State or political subdivision are not 
equally open to participation by members of a 
class of citizens protected by subsection (a) 
in that its members have less opportunity than 
other members of the electorate to participate 
in the political process and to elect 
representatives of their choice. The extent 
to which members of a protected class have 
been elected to office in the State or 
political subdivision is one circumstance 
which may be considered: -° Provided, That 
nothing in this section establishes a right to 
have members of a protected class elected in 
numbers equal to their proportion in the 
population. 

We are persuaded that Congress intended the 1982 amendments 
to take effect immediately, and thus to apply to pending cases. 
See 128 Cong. Rec. H3841 (daily ed. June 23, 1982) (remarks of 
Rep. Sensenbrenner); id. at S7095 (daily ed. June 18, . 1982) 
(remarks of Sen. Kennedy, majority floor manager of S. 1992). 
Accord, Hartford, Racial Vote Dilution and Separation of 
Powers: An Exploration of the Conflict Between the Judicial 
“Intent” and the Legislative "Results" Standards, 50 Geo. Wash. 
L.Rev., 689, 725 (1982). Several dilution actions initiated prior 
to June 29, 1982, the effective date of the amendments, have been 
disposed of pursuant to amended § 2. See, ‘e.g., Rybicki v. State 
Board of Elections, Civil No. 81-C-6 (N.D.ZI1ll. 1983) 
(three-judge court); Thomasville Branch of the N.A.A.C.P., v. 
Thomas County, Civil No. 75-THOM (M.D.Ga. 1983); Jones v., City of 
Lubbock, Civil No. C.A.~5-76-34 (N.D.Tex., 1983); Tavior v. 
Haywood County, 544 F.Supp. 1122 (W.D.Tenn. 1982) (grant of 
preliminary injunction). In Rybicki, the court found that 
application of 8 2 to a districting plan 4id not present a 
retroactivity issue because its analysis focused on the effects 
of the plan in future elections. 

  

  

  
  

  

  

41  



1992 of the Senate Committee on the Judiciary, S.Rep. No. 97-417, 

97th Cong., 24 Sess. 28 (1932): Rybicki vv, State Board of 
  

Elections, Civil No. 81-C-6030 (N.D.Il1l. 1983) (three-judge 

21 the 1982 amendment dispenses with the requirement that court), 

a plaintiff demonstrate intentional discrimination in the 

imposition or maintenance of the disputed electoral structure. 

S.Rep. No. 97-417 at 16. See Buchanan v. City of Jackson, No. 
  

81-5333 (6th Cir., filed June 7, 1983); Campbell v. Gadsen County 
  

School Board, 691 F.2d 978 (llth Cir. 1982); McMillan v. Escambia 
    

  

23. In City of Mobile v,., Bolden, 446 U.S. 55 (1980), four 
  

Justices of the Supreme Court opined that vote dilution claims 
are cognizable solely under the Fourteenth Amendment. Under the 
plurality's narrow construction, the Fifteenth Amendment bars 
only a direct, purposeful denial or abridgment of the right of a 
black person to vote. Since former § 2 of the Voting Rights Act 
of 1965 "was intended to have an effect no different from that of 
the Fifteenth Amendment itself," id. at 61, it likewise was not 
deemed to support a dilution cause of action. Though the Fourth, 
Fifth and Eighth Circuits have concluded that the five-Justice 
majority subscribes to the view that the Fifteenth Amendment 
gives rise to a dilution claim, see, e.g., Perkins v. City of 
West Helena, 675 F.2d 201 (8th Cir.), aff'd mem. u.s. 

+ 103 S.Ct. 33 (1982); Washington v. Finlay, 664 F.2d 913 
{4th Cir. 1981); Lodge v, Buxton, 639 F.2d 1353 (Sth ' Cir. 13581), 
aff'd sub nom. Rogers v. Lodge, eS. sr 1022.3.CF. 3272 
(1982), the Supreme Court itself tallies a minority of three. 
Rogers v. Lodge, 9.8. y 102: 8.08. 3272, 3276 n.6 
(1982) ("Three Justices [Justice Stevens, concurring, and 
Justices White and Marshall, dissenting] disagreed with the 
plurality's basis for putting aside the Fifteenth Amendment."). 
The Rogers court expressed no opinion on this issue, leaving 
undisturbed the plurality's decision with respect to the 
applicability of the Fifteenth Anendment and the original version 
of § 2 to dilution claims. See Campbell v. Gadsen County School 
Board; McMillan v., Escambia County. Nor, as discussed infra, 
need we consider the issue. 

  

    

  

  

  

  

   



  

County, 688 F.2d 960 (Sth Cir. 1982), jurisd. postponed, 
  

U.S. ,s 103 S.Ct. 1766 (1983). Guided by the axiom that 

cases should be resolved, where possible, on statutory rather 

than constitutional grounds, we shall analyze plaintiffs’ 

dilution claim under the amended § 2.22 

  

22. Dilution jurisprudence has evolved primarily in the context 
of constitutional challenges to state at-large or multimember 
districts. Though the Supreme Court has not directly addressed 
the issue, this circuit has recognized that the standards for 
decision developed in the multimember or at-large districting 
cases govern the adjudication of «claims involving the 
constitutionality of single-member districts. Nevett v. Sides, 
571 F.2d 209 (5th Cir. 1978), cert. denied, 446 U.S. 951 (1980); 
Kirksey v. Board of Supervisors, 554 F.2d 139 (Sth Cir.), cert. 
denied, 434 U.S. 968 (1977); Robinson v. Commissioners Court, 505 
F.2d 6874 {3th Cir. 1974). See R. Dixon, Democratic 
Representation: Reapportionment “in Law and Politics 484 
(1968). With regard to the applicability of the dilution 
rationale to congressional districting cases, we believe the 
better view is that irrespective of whether a state legislative 
or congressional districting. plan is the subject of dispute, "'we 
are required to determine the same question, whether or not there 
has been an unconstitutional manipulation of the electoral 
district boundaries so as to minimize or dilute the voting" 
strength of a minority class or interest.'" Nevett v. Sides, 571 
F.2d at 219 (quoting from Robinson v. Commissioners Court, 505 
F.2d at 678) (emphasis in original). See, "'6,4,, In re: 
Pennsylvania Congressional Districts Reapportionment Cases, Civil 

_ No. 82-0197, (M.D.Pa. 1982) (three-judge court), aff'd sub nom. 
Simon v. Davis, U.S.L.W. {0.8.8.Ct., July 7, 1983); 
In re: Illinois Congressional Districts Reapportionment Cases, 
No. 8l1=-C-3915, (N.D.Ill. 1981) (three-judge court), aff'd mem. 
sub nom. Ryan v. Otto, 454 U.S. 1130 (1982). 

  

  

  

  

  

  

    

  

  

  

  
  

  

  

  

  

  

Similarly, the "totality of circumstances" analysis, derived 
from the multimember dilution cases of White v. Register, 412 
U.S. 755 1973), and Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 
1973) (en banc), aff'd on other grounds sub nom. East Carroll 
Parish School Board Vv. Marshall, 424 U.S. 636 (1973) (per 
curiam), is equally applicable to state legislative or 
congressional districting schemes. According to the Senate 
(Ecotnaote continued) 

  

  

  

  

43  



A. Constitutionality of Amended Section 2. 
  

Before proceeding to the merits of plaintiffs' dilution 

alain, we must address defendants'challenge to the 1982 amendment 

to '§ 2. Defendants take the position that in codifying a test 

which relieves complainants of the burden of proving invidious 

intent, Congress has sought to overrule the Supreme Court's 

holding that such intent must be established as a prerequisite to 

recovery under either the Fourteenth or Fifteenth Amendments. 

  

city of Mobile v. Bolden, 446 U.S. 55 (1980). Given the 

congruence of § 2 and the Fifteenth amendment, defendants argue, 

the separation of powers doctrine practises Congress from 

expanding the statute to reach claims founded on discriminatory 

impact alone. By amending § 2 to accomplish this impermissible 

aim, the legislature has, in defendants' estimation, usurped the 

judiciary's exclusive prerogative to define the limits of the 

Constitution. 

In amending § 2, Congress reaffirmed "the right of minority 

  

Judiciary Committee: 

Whitcomb [v. Chavis, 403 U.S. 124 (1971)], 
White, Zimmer, and their progeny dealt with 
electoral system features such as at-large 
elections, majority vote requirements and 
[state legislative] districting plans. 
However, Section 2 remains the major statutory 
prohibition of all voting rights 
discrimination. 

  

  

  

S.Rep. No. 97-417 at 30 (emphasis added). 

44  



  

voters to be free from election practices, procedures or methods 

that deny them the same opportunity to participate in the 

political processes other citizens enjoy." S. Rep. No. 97-417 at 

28. Two principal objectives of the statutory "results" test 

were posited: to reach discriminatory conduct which might 

otherwise evade liability under the more stringent intent assay, 

and to eradicate the contemporary . effects of past 

discrimination. Id. at 40; H.R. Rep. No. 97-227, 97th Cong., lst 

Sess. 3 (1981). To this end, amended § 2 resurrected the 

principles applied in voting registration cases prior to 

Bolden. 23 According to the Report of the Senate Committee on the 

  

23. In White v. Regester, 412 U.S. 755 (1973), the Supreme Court 
identified a panoply of factors relevant to the determination 
whether a multimember or at-large districting system denied 
blacks and Hispanic voters full access to the political 
process. Focusing on whether the districts operated to dilute 
the voting strength of racial and ethnic minorities, the Court 
held that "the impact of the district . . . constituted invidious 
discriminaton." =. Id. at 767. The Former Fifth organized the 
White criteria into a coherent test which permitted the fact of 
dilution to be established upon proof of the aggregate of these 
criteria. Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en 
banc), aff'd on other grounds sub nom. East Carroll School Board 
v. Marshall, 424 U.S. 636 (1975) (per curiam). Untill the Fifth 
Circuit reconsidered the impact-oriented Zimmer analysis in light 
of Washington v., Davis, 426 U.S. 229 (1976), and Village of 
Arlington Heights v. Metropolitan Housing Development Corp., 429 
U.S. 252 (1977), plaintiffs asserting dilution claims in this 
circuit could prevail by demonstrating either discriminatory 
results or intent. See authorities cited in Nevett v. Sides, 571 
F.2d at 232 (Wisdom, J., specially concurring). In Nevett, the 
court ruled that while a showing of invidious intent is essential 
to recovery under the Fourteenth and Fifteenth Amendments, such 
intent could be inferred from proof of an aggregate of the Zimmer 
factors. 
(footnote continued) 

  

  

  

  

    

  

   



Judiciary: 

In pre-Bolden cases plaintiffs could prevail 
by showing that a challenged election law or 
procedure, in the «context of the total 
circumstances of the local electoral process, 
had the result of denying a racial or language 
minority an equal chance to participate in the 
electoral process. Under this results test, 
it was not necessary to demonstrate that the 
challenged election law or procedure was 
designed or maintained for a discriminatory 
purpose. 

In Bolden, a plurality of the Supreme Court 
broke with precedent and substantially 

"increased the burden on plaintiffs in voting 
discrimination cases by requiring proof of 
discriminatory purpose. The Committee has 
concluded that this intent test places an 
unacceptably difficult burden on plaintiffs. 
It diverts the judicial ‘inquiry from the 

  

A plurality of the Supreme Court subsequently rejected the 
Fifth Circuit's effort, in Nevett, to reconcile Zimmer with 
Washington and Arlington ‘Heights by injecting an intent 
requirement, opining that Nevett was premised on a 
misapprehension that proof of discriminatory impact permitted an 
inference of discriminatory intent. Acknowledging that Zimmer's 
circumstantial factors might "afford some evidence of a 
discriminatory purpose," the plurality stated that such factors 
would not alone furnish sufficient evidence thereof. 446 U.S. at 
73. With respect to the significance of Bolden, this court later 
opined that ". . . it appears that the Supreme Court has somewhat 
increased the proof on. plaintiffs in [vote dilution] cases." 
Accord, Lodge v. Buxton, 639 F.2d 1258, 1373 (Sth Cir. 1331), 
aff'd sub nom. Rogers v. Lodge, JeSe i022. S.C, 3272 
(1982). Comment, The Standard of Proof in At-Large Vote Dilution 
Discrimination Cases After City of Mobile wv. Bolden, 10 Fordham 
Urb. L.J. 103 (1981). A majority of the Supreme Court Justices 
evidently concurred in this judgment. See footnote 22, infra. 

    

  

  

  

For an exhaustive survey of vote dilution jurisprudence, 
from its origins in the seminal case of Reynolds v. Sims, 377 
U.S. 533 (1964), to Bolden, sees the Report on S. 1992 of the 
Senate Judiciary Committee, S.Rep. No. 97-417 at 19-27. 

  

46  



crucial question of whether minorities have 
equal access to the electoral process to a 
[sic] historical question of individual 
motives, 

S.Rep. No. 97-417 at 16.24 

Regardless of whether former § 2 purported to track the 

Fifteenth Amendment, and thus mandated proof of invidious intent, 

Congress has since elected to broaden the statutory proscription 

to embrace conduct which is discriminatory in either purpose or 

effect. Assuming that amended § 2 constitutes a valid exercise 

  

24. ~~ While reaffirming the Bolden purposeful discrimination 
requirement, the Supreme Court has itself alleviated to some 
degree the complainant's burden of proof in Rogers v. Lodge, 

VeSe + 102 S.Ct. 3272 (1982). In Rogers, six Justices 
approved the Fifth Circuit's reliance upon proof of the factors 
set forth in Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) 
(en banc), aff'd on other grounds sub nom. East Carroll Parish 
School Board v. Marshall, 424 U.S. 636 (1975) (per curiam), to 
draw an inference of discriminatory intent in a vote dilution 
case. By approving judicial resort to the Zimmer criteria, 
heretofore adjudged inadequate in Bolden, to establish intent, 
and evincing greater deference to the factual findings of the 
trial court, the Rogers opinion "signals a significant retreat 
from the Bolden plurality's racial vote dilution analysis and a 
revitalization of the Zimmer factors in the context of an 
{intent}. . , + inguiry." Hartford, Racial Vote Dilution, 50 
Geo.Wash.L.Rev. at 716-17. See Buchanan v. City of Jackson, No. 
81-5333 (6th Cir., filed June 7, 1983) (because Bolden appeared 
to require direct evidence of discriminatory intent, whereas 
Rogers restores the significance of circumstantial evidence in 
ascertaining the existence of such intent, the latter represents 
a marked departure from the plurality's opinion in Bolden): 
McMillan v. Esc-mbia County; Cardwell, Voter Dilution and the 
Standard of Proog¢, 14 Urban Law 863 (1982). Dissenting Justices 
Powell and Rehnquist maintain that the holdings in Bolden and 
Rogers cannot be reconciled, suggesting that the Bolden rationale 
has in effect been repudiated by the majority. Rogers v. Lodge, 
102 S.Ct. at 3281 (Rehnquist and Powell, JJ., dissenting). 

  

  

  

  

  

    

  

hl 

47  



of legislative power, therefore, the Bolden court's 

interpretation of the original § 2 is no longer controlling. 

Accordingly, we turn for guidance to a long line of Supreme Court 

cases wherein other key provisions of the 1965 Voting Rights Act 

have passed constitutional muster, such provisions having been 

deemed to fall within the purview of Congress' enforcement 

authority. 

Section 4(a) of Act, 42 u.s.C. § 1973b(a), abolishing 

literacy tests in any jurisdiction where less than 50% of the 

voting age residents had voted in prior elections, was considered 

a necessary and proper means of implementing the Fifteenth 

amendment in South Carolina v. Katzenbach, 383 U.S. 301 (1966). 
  

Addressing the state's contention that Congress had exceeded its 

enforcement powers under § 2 of the Fifteenth Amendment, the 

Katzenbach court proclaimed that "Congress has full remedial 
  

powers to effectuate the constitutional prohibition against 

racial discrimination in voting." Id. at 326. The Court has 

since cited Katzenbach for the proposition "that congressional 
  

authority [embodied in § 2 of the Eifteenth Amendment] extends 

beyond the prohibition of purposeful discrimination to encompass 

state action that has discriminatory impact perpetuating the 

effects of past discrimination." Fullilove v. Klutznick, 448 
  

U.S. 448, 477 (1980) (dicta).?23 

  

Later in the 1966 term, in XKatzenbach wv. Morgan. 384 U.S.  



641 (1966), the Supreme Court sustained § 4(e) of the Voting 

Rights Act of 1965, 42 U.S.C. § 1973b(e), against an attack 

founded on § 5 of the Fourteenth Amendment. Section 4(e) forbade 

the use of English literacy tests to deny the right to vote to 

any person who had attained a sixth grade .education in an 

"American Flag" school, in which the language of instruction was 

other than English. This provision was aimed at New York's 

disenfranchisement of Puerto Rican residents. Writing for the 

majority, Justice Brennan analogized Congress' § 5 authority to, 

  

25, In Klutznick, a plurality of the Supreme Court upheld the 
constitutionality of the "minority business enterprise" provision 
of the Public Works Employment Act of 1977, 42. u.s.C. 
§ 6705(f) (2), which dictates that 10% of federal grants for local 
public works projects be set aside for minority business 
enterprises. Chief Justice Burger's plurality opinion displays a 
deferential attitude toward Congress' exercise of its remedial 
powers: 

Here we deal . . . not with the limited 
remedial powers of a federal court, . . . but 
with the broad remedial powers of Congress. 
It is fundamental that in no organ of 
government, state or federal, does there 
repose a more comprehensive remedial power 
than in the Congress, expressly charged by the 
Constitution with competence and authority to 
enforce equal protection guarantees. Congress 
not only may induce voluntary action to assure 
compliance with existing federal statutory or 
constitutional antidiscrimination provisions, 
but also, where Congress has :authority to 
declare certain conduct unlawful, it may . . . 
authorize and induce state action to avoid 
such conduct., 

448 U.S. at 4813-84 (citation omitted). 

49  



  

inter alia, the plenary grant of the necessary and proper clause, 

Article I, § 8, cl. 18. Thus, the critical question was "whether 

§ 4(e) may be regarded as an enactment to enforce the Equal 

Protection Clause, . . . whether it is ‘plainly adapted to that 

end,' and whether it is not prohibited by but is consistent with 

‘the letter and spirit of the -constitution.'™ 14, at 651 

(quoting from McCullock v. Maryland, 17 U.8. (4 Wheat.) 159, 421 
  

(1819)). Notwithstanding the absence of a record of actual 

discrimination, the Court endorsed Congress’ passage of a measure 

which remedied historical discrimination, and enabled the perks 

Rican community to combat prospective siate: violations of the 

Fourteenth Amendment. As Chief Justice Burger subsequently 

observed, in discussing the import of Morgan: 

To uphold this exercise of congressional 
authority, the Court found no prerequisite 
that application of a literacy requirement 
violated the Equal Protection Clause. . . . 
It was enough that the Court could perceive a 
basis upon which Congress could reasonably 
predicate a judgment that application of 
literacy qualifications within the compass of 
§ 4(e) would discriminate in terms of access 
to the ballot and consequently in terms of 
access to the provision or administration of 
governmental programs. 

Fullilove vv. Rlutznick, 443 U.S. at 477 (dicta) (citations 
  

omitted). 

Congress' enactment of a five-year national ban on the 

utilization of qualification tests and devices in federal, state 

and local elections, which took the form of § 2(d) of the Voting 

50  



Rights Act amendments of 1970, current version codified at 42 

U.S.C. § 1973b, was sanctioned by the Court in Oregon v. 
  

Mitchell, 400 U.S. 112 (1970).2% Although the Justices authored 

five separate opinions, all nine stressed that Congress is 

endowed with substantial discretion in enforcing the 

Reconstriotion amendments. Once again, the Fullilove court's 

commentary is instructive: 

The [Mitchell] Court was unanimous, albeit in 
separate opinions, in concluding that Congress 
was within its authority to prohibit the use 
of such voter qualifications; Congress could 
reasonably determine that its legislation was 
an appropriate method of [foreclosing the 
possibility that purposefully discriminatory 
administration of literacy tests would escape 
undetected and] attacking the perpetuation of 
prior purposeful discrimination, even though 
the use of these tests or devices might have 
discriminatory effects only. 

Fullilove v. Klutznick, 448 U.S. at 477 (dicta) (citation 
  

omitted). 

In an opinion issued contemporaneously with Bolden, City of 
  

Rome v. United States, 446 U.S. 156 (1980), the Supreme Court 
  

rejected a constitutional assault on § 5S of the Voting Rights 

  

26. At issue in Mitchell were provisions of the Voting Rights 
Act Amendments of 1970, P.L. No. 91-285, which: (1) reduced the 
minimum voting age in state and federal elections =-- the latter 
was upheld by the Court, and the former stricken as 
unconstitutional; (2) eliminated literacy tests or devices for a 
five-year term in state and federal elections throughout the 
country == upheld; and (3) erection of a bar to state 
requirements disqualifying voters in presidential elections -- 
also upheld.  



Act, 42 U.S.C. § 1973c. Under § 5, any change in voting or 

election laws proposed by a covered jurisdiction will not be 

approved, or "precleared," by the United States Attorney General 

unless it "does not have the purpose and will not have the effect 

of denying or abridging the right to vote on account of race or 

COLOF: vs. a" Though fully cognizant that the Fifteenth 

Amendment prohibits only intentional discrimination, the Court 

stated that § 2 of that amendment permitted Congress to interdict 

election procedures which were not in and of themselves motivated 

by racial animus, but which created the risk of purposeful 

discrimination or perpetuated the effects of past 

discrimination. Id. at 176, 177. At the heart of the decision 

lies this finding: 

Congress could rationally have concluded that, 
because electoral changes by jurisdictions 
with a demonstrable history of intentional 
racial discrimination in voting create the 
risk of purposeful discrimination, it was 
proper to prohibit changes that have a 
discriminatory impact. . + We find: no 
reason, then, to disturb Congress' considered 
judgment that banning electoral changes that 
have a discriminatory impact is an effective 
method of preventing States from "'undo[ing] 
or defeating] the rights recently won' by 
Negroes." 7 

Id. at 177-78 (quoting from Beer v. United States, 425 U.S. 130, 
  

140 (1976)) (citations and f -otnotes omitted). Such remedial 

measures need only be "appropriate," within the meaning of 

McCulloch v, Maryland, in order to effectuate substantive rights 
   



  

secured by § 1 of the Fifteenth Amendment. 

Similarly, Congress here determined, after extensive 

hearings and the taking of - expert and lay testimony, that the 

intent test inordinately ‘burdened plaintiffs in vote dilution 

cases, was unnecessarily divisive due to the charges of racism 

which must inevitably be leveled against individual officials or 

entire communities, and, most importantly, compelled protracted, 

often futile inquiries into the motives of officials who acted 

many years ago. S.Rep. No. 97-417 at 36-37. Ultimately, the 

state defendants could all too easily advance racially neutral 

justifications in rebuttal. In Congress' judgment, the danger 

that a defendant official would seek to rebut the plaintiff's 

circumstantial evidence of purposeful discrimination "by planting 

a false trail of direct evidence in the form of official 

resolutions, sponsorship statements and other legislative history 

eschewing any racial motive . . . seriously clouds the prospects 

of eradicating the remaining instances of racial 

discrimination.” Id. at 37. See Extension of the Voting Rights 

Act: Hearings Before the Subcommittee on Civil and 

Constitutional Rights of the House Committee on the Judiciary, 

97th Cong., 1st Sess. 1189 (1982) (testimony of Joaquin Avila, 

counsel for the Mexican-American Legal Defense Fund) 

(contemporary official discrimination more subtle; smoking gun 

evidence of racial animus can no longer be discerned in the  



public record). 

Congress thus sought to enact a legislative prophylaxis, 

calculated to forestall the institution of potentially 

discriminatory electoral systems and extirpate facially neutral 

devices or procedures which continue to expose minority voters to 

harmful consequences rooted in historical discrimination. S.Rep. 

No. 97-417 at 40. Summarizing the bases for their conclusions 

that proper enforcement of the Fourteenth and Pifteenth 

Amendments required a ban on election procedures and practices 

‘which culminate in a denial or abridgement of the right to vote, 

the drafters found: 

(1) that the difficulties faced by plaintiffs 
forced to prove discriminatory intent 
through case-by-case adjudication create 
a substantial risk that intentional 
discrimination barred by the Fourteenth 
and Fifteenth Amendments go undetected, 
uncorrected and undeterred unless the 
results test proposed for section 2 is 
adopted; and (2) that voting practices 
and procedures that have discriminatory 
results perpetuate the effects of past 
purposeful discrimination. 

We concur in Professor Archibald Cox's interpretation of 

Supreme Court precedent as vesting Congress with broad 

discretion, under the Fourteenth and Fifteenth Amendments, 

. « » to outlaw all voting arrangements that 
result in denial or abridgement of the right 
to vote even though not all such arrangements 
are unconstitutional, because this is a means 
of preventing their use as engines of 

54  



purposive and therefore unconstitutional 
racial discrimination. 

Hearings on the Voting Rights Extension Before the Subcommittee 

on the Constitution of the Senate Judiciary Committee, 97th 

Cong., 2d Sess, (Feb. 25, 1982) (prepared statement of Professor 

Archibald Cox: at 14). Empirical findings by Congress of 

persistent abuses of the electoral process, and the apparent 

failure of the intent test to rectify those abuses, were 

meticulously documented and borne out by ample testimony. Based 

on these findings, the legislators reasonably concluded that 

substantial amelioration of a dilution plaintiff's statutory 

burden of proof was warranted. Although ostensibly contradictory 

of the Supreme Court's holding in Bolden, 27 we perceive § 2 as 

  

27. Recognizing that it wielded a figurative two-edged sword, 
one which might be turned against it in such controversial areas 
as school prayer, busing and abortion, the Senate Judiciary 
Committee reasoned: 

It has been suggested that the Committee bill 
[S. 1992] would overturn a constitutional 
decision by the Supreme Court [Bolden], in 
spite of the strenuous opposition of some of 
the bill's proponents to unrelated 
Congressional efforts to override Supreme 
Court decisiois in other areas by statute 
rather than by constitutional amendment. 

This argument simply misconstrues the 
nature of the proposed amendment to section 
CWO. Certainly, Congress cannot overturn a 
substantive interpretation of the Constitution 
by the Supreme Court. Such rulings can only 
be altered under our form of government by 

+ constitutional amendment or by a subsequent 
(Eocotnote continued)  



merely prescribing a potion to remove the vestiges of past 

official discrimination and to ward off such discrimination in 

the - future. Congress has not expanded the Constitution's 

substantive guarantees but has simply redefined and strengthened 

the statutory protections around core constitutional values, thus 

exercising its authority within the confines of the 

Constitution. 28 Or, as the president of the American Bar 

  

decision by the Court. 

Thus, Congress cannot alter the judicial 
interpretations in Bolden of the Fourteenth 
and Fifteenth Amendments by simple statute. 
But the . . . amendment to section two does 
not seek to reverse the Court's constitutional 
interpretation ... . [and] is a proper 
exercise of Congress' enforcement power. 

S.Rep. No. 97-417 at 4l. 

28. One commentator postulates: 

Because the [results] test is designed to 
reach those electoral schemes that are most 
likely to permit purposeful discrimination to 
escape detection, to perpetuate the effects of 
past discrimination, or to facilitate 
purposeful discrimination in the provision of 
public services, amended section 2 must be 
regarded as within the scope of congressional 
power under the enforcement clauses of the 
Fourteenth and Fifteenth Amendments. To hold 
otherwise the Supreme Court would have to 
depart sharply from precedent and adopt 
Justice Rehnquist's view [outlined in his 
dissenting opinion in City of Rome v. Urited 
States] that the congressional enforcement 
role is limited to providing remedies that do 
not reach beyond the prohibitions of the 
amendments themselves as interpreted by the 
Supreme Court. 

(footnote continued) 

  

56  



Association opined before the Senate Judiciary Committee, 

Under this Amendment, the Supreme Court's 
interpretation of the proper constitutional 
standard . ... lis) left intact, Only the 
section 2 statutory standard [is] 
changed, .. +. . 

Hearings on the Voting Rights Act Extension Before the 

Subcommittee on the Constitution of the Senate Judiciary 

Committee, 37th Cong., 24 Sess. (Feb. 25, 1982) (prepared 

statement of David R. Brink at 7). 

Senate critics of § 2, led by Senator Orrin Hatch, raised 

the specter of overbreadth, arguing that the exceptional 

conditions justifying unequal application of § 5 to jurisdictions 

with a history of intentional discrimination did not support the 

extension of a nationwide ban encompassing noncovered 

jurisdictions. Subcommittee on the Constitution of the Senate 

Committee on the Judiciary, 97th Cong., 24 Sess., Voting Rights 

Act, Report on 8S, 1992, reprinted in S.Rep. No. 97-417 . at 

170-71. Absent a record suggesting that voting discrimination 

permeates the entire nation, the Senate Subcommittee on the 

Constitution maintained that the sweeping reforms contemplated by 

§ 2 could not be described as remedial in character, and were 

consequently beyond the scope of congressional enforcement 

powers, Id, at 171. Accord, Note, Amending Section 2 of the 

  

Hartford, Racial Vote Dilution, 50 Geo.Wash.L.Rev. at 748 

(Eootnotes omitted).  



Voting Rights Act of 1965, 32 Case W.Res.L.Rev. 500 (1982). Cf. 

Rogers v. Lodge, 102 S.Ct. at 3283 (Stevens, J., dissenting) 
  

(emphasis added) ("Nor, in my opinion, could there be any doubt 

about the constitutionality of an amendment to the Voting Rights 

Act that would require . . . covered jirisdictions to abandon the 

specific kinds of at-large voting schemes that perpetuate past 

discrimination."). 

As the Senate Judiciary Committee pointed out, however, the 

§ 5 analogy "overlooks the fundamental difference in the degree 

of jurisdiction needed to Sustain the extraordinary nature of 

preclearance, on the one hand, and the use of a particular legal 

standard to prove discrimination in court suits on the other." 

S.Rep. No. 97-417 at 42. See Vance v. Terrazas, 444 U.S. 252, 
  

265-66 (1980). Nor do the critics take into consideration the 

Mitchell court's declaration of the constitutionality of § 2 of 

the Voting Rights Act amendments of 1970, striking down literacy 

tests and devices in both covered and noncovered jurisdictions. 

Whatever their disagreement on other issues, the members of the 

Court unanimously endorsed the literacy test provision. 23 

  

29, Oregon v. Mitchell, 400 U.S. at 131-34 (majority opinion, 
authored by Black, J.); 1d. at 144-47 (Douglas, J., concurring in 
part and dissenting in part); jd. at. 216-17 (Harlan, J., 
concurring in part and dissenting in part); id. at 233-36 
(Brennan, White and Marshall, J.J., dissenting in part and 
concurring in part); id. at 281-84 (Stewart, J., concurring in 
part and dissenting in part). Justice Harlan remarked: 

  

(footnote continued)  



In the final analysis, the self-limiting character of § 2 

effectively refutes the overbreadth argument. Since this statute 

does not impose an absolute ban on specific election practices, 

or allow liability to attach without a finding of dilution under 

the totality of circumstances in a given case, the fear that §-2 

will precipitate a nationwide revision of state election laws is 

groundless. Only a state law shown to discriminatorily impact 

against minority voters will run afoul of § 2. 

Federalism concerns expounded by § 2 opponents, see, e.g9., 

128 Cong. Rec. S6786 (daily ed., June 15, 1982, remarks ot 

Senator Harry Byrd); id. at S6517 (daily ed., June 9, 1982) 

(remarks of Senator Hatch), and reiterated by defendants herein, 

are closely related to the separation of powers question. 

Defendants suggest that § 2 contravenes the principle of state 

sovereignty enshrined in the Tenth Amendment, which precludes 

  

Despite the lack of evidence of specific 
instances of discriminatory application or 
effect, Congress could have determined that 
racial prejudice is prevalent throughout the 
Nation, and that literacy tests unduly lend 
themselves to discriminatory application, 
either conscious or unconscious. - This danger 
of violation of § 2 was sufficient to 
authorize the exercise of «congressional 
power. The danger of violation of § 1 of the 
Fifteenth Amendment was sufficient to 
authorize the exercise of congressional power 
under § 2. 

Id. at 216 (Harlan, J., concurring in part and .dissenting in 

part) (footnotes omitted).  



Congress from wielding its legislative power to impair the 

States' freedom to structure integral operations in areas of 

traditional governmental functions. National League of Cities wv. 
  

Usery, 426 U.S. 833 (1976) (Fair Labor Standards Act, a Commerce 

Clause enactment, held unconstitutional as applied to state 

employees). Usery explicitly declined to entertain the question 

of whether different results might obtain were Congress to 

encroach upon integral operations of state governments through 

the exercise of authority conferred by § 5S of the fourteenth 

amendment. See City of Rome v. United States, 446 U.S. at 
  

178-79. 

In South Carolina vv. Katzenbach, the Court ruled that 
  

Congress may, as against the reserved powers of the state, 

utilize any rational means to implement the Fifteenth 

amendment. Justice marshall subsequently rejected a federalism 

argument predicated on Usery, explaining that: 

+ « « principles of federalism that might 
otherwise be an obstacle to congressional 
authority are necessarily overridden by the 
power to enforce the Civil War Amendments "by 
appropriate legislation.” Those Amendments 
were specifically designed as an expansion of 
federal power and an intrusion on state 
sovereignty. Applying this principle, we hold 
that Congress had the authority to regulate 
state and local voting through the provisions 

of the Voting Rights Act. National League of 
Cities, then, provides uo reason to depart 
from our decision in South Carolina wv. 
Katzenbach that "the Fifteenth Amendment 
supersedes contrary exertions of state power," 
. . . and that the Act is an appropriate means 

  

  

  

60  



for carrying out Congress' constitutional 
responsiblities. . . . 

City of Rome v. United States, 446 U.S. at 179-80 (citations and 
  

footnotes omitted). Accord, Fitzpatrick v. Bitker, 427 U.S. 445 
  

(1976) (§ 5 of the Fourteenth Amendment overcomes state Eleventh 

Amendment immunity). City of Rome therefore teaches that the 
  

Tenth Amendment does not constrict congressional power to enforce 

the Reconstruction amendments by appropriate legislation. See 

Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 
  

264, 287 n.28 (1981) (dicta). Given our conclusion that § 2 is 

an appropriate expression of congressional enforcement authority, 

we are persuaded that this measure does not work an 

unconstitutional abrogation of powers allocated to the states by 

the Tenth amendment. 

B. Application of Act 20 
  

Congressional districts may be equal or, as here, 

substantially equal in population, yet fail to secure fair and 

effective representation for all voters. Through the 

30 
cartographic technique known as gerrymandering, a politically 

  

30. "Gerrymandering" refers to "discriminatory districting which 
operat2s unfairly to inflate the political strength of one group 
and deflate that of another." R. Dixon, The Court, the People 
and "One Man, One Vote," in Reapportionment in the 1970s 7 (N. 
Polsby, ed. 1971). Dr. Engstrom defines the "equipopulous 
gerrymander" as "districting that satisfies the one person, one 
vote requirement yet is discriminatory toward an identifiable 
(Ecotnote continued) 

61  



dominant group is able to manipulate district lines within the 

constraints of Article I, § 2, so as "to minimize or cancel out 

the voting strength of racial or political elements of the voting 

population.” Fortson v. Dorsey, 379 U.S. 433, 439 (1965). See 
  

    

Gaffney v. Cummings, 412 U.S. 735 (1973); White v. Regester, 412 

US. "755 °41973). The amended § 2, Congress' response to the 

continuing concern over the extent of minority participation in 

the electoral process, provides a formidable vehicle for 

redressing vote dilution claims. 

Pursuant to amended § 2, a complainant has the option of 

either proving a discriminatory purpose in the adoption or 

maintenance of an electoral structure or practice, or 

demonstrating, "based on the totality of circumstances," that the 

structure or practice results in a dilution of minority voting 

power. 42 U.S.C. § 1973b, See City of Lockhart v. United 
  

  

States, U.S. s 303 S.Ct, 998, 1004 (1983) (Marshall, 

J., concurring); Buchanan v. City of Jackson; Rybicki v. State 
  

Board of Elections. Listed in the Senate Report are several 
  

group of voters." Engstrom, The Supreme Court and Equipopulous 
Gerrymandering: A Remaining Obstacle in the Quest for Fair and 
Effective Representation, 1976 Ariz, State L.J. 277, 278 n.S5. 
Justice Stevens recently warned that slavish judicial adherence 
to the goal of perfect population equality is "'perfectly 
compatible with gerrymandering of the worst s<<t.'"™ Karcher v. 
Daggett, U.S. s 303 S.Cr, 2633, 26/1 (1983) (Stevens, 
J., concurring) (quoting from Wells v. Rockefeller, 394 U.S. 342, 
551 (1969) (Harlan, J., dissenting). Accord, id. at 2863 (White, 
J., dissenting, joined by Burger, C.J., and Rehnquist and Powell, 
J.J.); id. at 2869 (Powell, J., dissenting). 

  

  

  

  

62  



objective factors, drawn from White v. Regester and Zimmer v. 
  

McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc), aff'd on 

other grounds sub nom, East Carroll Parish School Board v. 
  

Marshall, 424 U.S. 636 (1975) (per curiam), which a court may 

evaluate in applying § 2's "totality of circumstances" test: 

‘1. the extent of any history of official 
discrimination in the state or political 
subdivision that touched the right of the 
members of the minority group to register, to 
vote, or otherwise to participate in the 
democratic process; > 

2. the extent to which voting in the 
elections of the state or political 
subdivision is racially polarized; 

3. the extent to which the state or 
political subdivision has used unusually large 
election districts, majority vote 
requirements, anti-single shot provisions, or 
other voting practices or procedures that may 
enhance that opportunity for discrimination 
against the minority group: 

4, if there is a candidate slating 
process, whether the members of the minority 
group have been denied access to that process; 

Se. the extent to which members of the 
minority group in the state or political 
subdivision bear the effects of discrimination 
in such areas as education, employment and 
health, which hinder their ability to 
participate effectively in the political 
process; : 

6. whether political campaigns have been 
characterized by overt or subtle racial 
appeals; 

ir oF the extent to which members of the 
minority group have been elected to public 
office in the jurisdiction. 

63  



Additional factors that in some cases 
have had probative value as. part of 
plaintiffs' evidence to establish a violation 
are: 

whether there is a significant lack 
of responsiveness on the part of elected 
officials to the particularized needs of 
the members of the minority group. 

whether the policy underlying the 
state or political subdivision's use of 
such voting qualification, prerequisite 
to voting, or standard, practice or 
procedure is tenuous. 

While these enumerated factors will often 
be the most relevant’ ones, in some cases other 
factors will be indicative of the alleged 
dilution. 

S.Rep. No. 97-417 at 28-29 (footnotes omitted). 

No particular number or arrangement of factors need be 

proved as a prerequisite to recovery, nor is a plaintiff limited 

to evidence that fits within the Zimmer-White analytic 
  

framework. To the extent that the enumerated factors are not 

factually relevant, they may be replaced or substituted by other, 

more meaningful factors. Mindful of Zimmer's command that these 

indicia of discrimination are neither exclusive nor controlling, 

the Senate Judiciary Committee cautioned: 

The courts ordinarily have not used these 
factors, nor does the Committee intend them to 
be used, as a mechanical "point counting" 
device. The failure of plaintiff to establish 
any particular factor, is not. rebuttal 
evidence of non-dilution. Rather, the 
provision [§ 2] requires the court's overall 
judgment, based on the totality of 

64  



circumstances ‘and guided by those relevant 
factors in the particular case, of whether the 
voting strength of minority voters is, in the 
language of Fortson and Burns, minimized or 
canceled out. 

1d. at 29 n.ll8. 

Upon review of the totality of circumstances in the instant 

case, the court is satisfied that the plaintiffs have made out a 

prima facie case of vote dilution under § 2. Evidence of "past 

discrimination cannot, in the manner of original sin, condemn 

  

action that is not in itself unlawful,” City of Mobile v. Bolden, 

446 U.S. at 74, but is relevant insofar as it impacts adversely 

on a minority group's present opportunities to participate in 

government. We are persuaded that the deleterious repercussions 

of historical discrimination persist in hindering the political 

access of minorities in Orleans Parish.3l 

As the Supreme Court commented in Rogers v. Lodge, 102 S.Ct. 
  

at 3279, “([v]oting along racial lines allows those elected to 

ignore black interests without fear of political consequences, 

  

31. A causal nexus between the disparate socio-economic status 
of blacks arising from past discrimination and a depressed level 
of minority political participation need not be established. 
S.Rep. No. 97-417 at 29 n.ll4 (citing White v. Regester and 
Kirksey v. Board of Supervisors, 554 F.2d 139 (5th Cir.), cert. 
denied, 434 0.8. 968 (1977)). "Inequality of access is an 
inference which flows from the existence of economic and 
educational inequalities." Kirksey v. Board of Supervisors, 554 
P24 at. 145, Plaintiffs have nevertheless succeeded in 
demonstrating that the contemporary effects of past 
discrimination furnish at least a partial explanation for the low 
black registration and voting apparent in Orleans Parish. 

  

  

  

65  



and without bloc voting the minority candidates would not lose 

elections solely because of their race." The importance of 

polarized voting cannot be underestimated, for if it does not 

exist, the minority voter "has little reason to 

complain. . . .® United Jewish Organization v. Carey, 430 U.S. 
  

144, 166 n.24 (1977). See Lodge v. Buxton, 639 F.2d 1358 (5th 
  

Cir. 1981), aff'd sub nom. Rogers v. Lodge, v.88. o 102 
  

S.Ct, 3272 (198)). A consistently “high degree of electoral 

polarization in Orleans Parish was proven through both 

statistical and anecdotal evidence. Particularly as enhanced by 

Louisiana's majority vote requirement ,32 ‘racial bloc voting 

substantially impairs the ability of black voters in this parish 

to become fully involved in the democratic process. That several 

  

32. Severely criticized for its tendency to submerge racial 
minorities, Zimmer v. McKeithen, the majority vote requirement: 
  

« « « requires a run-off election between the 
two candidates with the most votes if no 
candidate receives a majority in the first 
election. The run-off allows white voters who 
scattered their votes among various white 
candidates in the first election to 
consolidate their vote in the second to defeat 
a minority candidate who received a plurality 
of the vote in the first election. 

Note, Racial Vote Dilution in Multimember Districts: The - 
Constitutional Standard after Washington v. Davis, 76 Mich.L.Rev, 
694, 697 (1973). For obvious reasons, the inability of 
minorities to form coalitions or to otherwise influence other 
groups due to polarization is exacerbated by the majority vot 
requirement. : 

   



black candidates, among them Mayor Morial, have won office in 

Orleans Parish does not foreclose a finding of dilution. See 

S.Rep. No. 97-417 at 29 n.ll5; Campbell v. Gadsen County School 
  

Board; Zimmer v. McKeithen. Considering the parish's 55% black 
  

population, the 15% success rate of black candidates at the polls 

is substantially lower than might be anticipated absent such 

impediments to black voting and registration as the lingering 

ramifications of historic disenfranchisement conjoined with past 

and present disparities in education, income, employment and 

housing. Professor Henderson's analysis of voting patterns in 

Orleans Parish shows that the victories of blacks in municipal, 

parish and state representative or senate contests can be 

ascribed in major part to racial bloc voting and some cross-over 

voting by a unique enclave of liberal whites. IE Act 20's 

sundering of the black populace of New Orleans were allowed to 

stand, the effective independent impact of black voters would be 

unfairly and illegally minimized. 

A tenuous state policy supportive of ‘a particular 

districting scheme is probative of the question of the fairness 

or the unfairness of that scheme's impact on minority voters. 

S.Rep. No. 97-417 at 29. Departures from the normal procedural 

sequence, or the specific chain of events leading up a 

particular legislative decision, bear on the weight to be 

accorded the state policy underlying a particular voting system  



or practice. See id. See also Karcher v. Daggett, U.S. 
  

+ 103 S.Ct. 2863 (1983) (Stevens, J., concurring). After 

extensive public hearings and consultations with staff counsel, 

committees of both houses of the legislature formulated a 

reapportionment policy tailored to maximize black voting strength 

within one of Louisiana's eight congressional districts. To 

implement this benign, race-conscious policy, the legislature, 

through its joint committee, promulgated a set of neutral 

reapportionment criteria which culminated in the preparation and 

bicameral approval of the Nunez Plan, 33 

  

33. It is well-established that a legislative body may consider 
race in drawing district lines, so long as it does not 
discriminate invidiously or contravene the one person/one vote 
precept. See Pullilove v.. Rlutznick, 448 U.S, at 433 (". . . a 
state may employ racial criteria that are reasonably necessary to 
assure compliance with federal voting rights legislation, even 
though the state action does not entail the remedy of a 
constitutional violation"); United Jewish Organizations of 
Williamsburgh, Inc. v. Carey; Wyche v. Madison Parish Police 
Jury, 63% P.2d 1151 (5th Cir. 1981); Marshall v. Bdwards, 582 
F.2d 927 (3th Cir. 1978), cert. denisd, 442 u.5, 909 (1979). In 
Carey, the Court made it clear that legislatures may engage in 
racially proportionate redistricting: 

  

  

  

  

  

"(Clourts have [no] constitutional warrant to 
invalidate a state plan, otherwise within 
tolerable population limits, because it 
undertakes, not to minimize or eliminate the 
political strength of any group or party, but 
to recognize it and, through districting, 
provide a rough sort of proportional 
representation in the legislative halls of the 
State.” 

430 0.85. at 168 (quoting from Gaffney v, Cumminds, 412 U.S. at 
752). See Note, Group Representation and Race-Conscious 
(footnote continued) 

  

68  



The Louisiana Legislature's policy, which would have 

maintained New Orleans' black community within one district, and 

virtually all neutral apportionment guidelines, were abruptly 

discarded in the face of the Governor's veto threat. No cohesive 

goals replaced the abandoned policy. Further, rather than 

utilizing the routine mechanism of the conference committee 

following the House's withdrawal of its approval of the Nunez 

Plan, the legislative leaders convened a private meeting to seek 

a solution which would satisfy the Governor and the Jefferson 

Parish forces. Because all were aware that the conflicting 

objectives of the Governor and black legislators with respect to 

a black majority district could not be harmonized, the latter 

were deliberately excluded from the final decision-making 

process. 

Physical evidence of racial gerrymandering may itself 

furnish strong, objective proof of vote dilution. Rybicki wv. 
  

State Board of Elections; Adams, a Model State Reapportionment 
  

Process: The Continuing Quest for "Fair and Effective 

Representation,” 14 Harv.J.Leg. 825 (1977). Minority voting 

strength may be dissipated through one of two familiar 

gerrymandering techniques: "stacking," or the overconcentration 

of members ¢% a specific group in numbers greatly in excess of 

  

Apportionment: The Roles of States and the Federal Courts, 91 
Harv.L.Rev.' 1847 (1978).  



the percentage required to exercise a meaningful choice at the 

ballot box, or "cracking," the division of a cohesive population 

concentration. Karcher vy. Daggett, 103 s.Ct. at 2672 n,13 
  

(Stevens, J., concurring); Nevett v. Sides, 571 F.2d at 219; R. 
  

Morrill, Political Redistricting and Geographic Theory at 14-15, 

19-20 (1981). See also United Jewish Organizations, Inc. v. 
  

carey, 430 U.S. at 158. When a redistricting plan employs the 

latter technique in a racially polarized environment, the result 

is predictable: 

Like a multimember plan, (a single-member 
district plan which fractures a geographically 
concentrated minority voting population] . . . 
tends to dilute the voting strength of the 
minority. In Robinson wv. Commissioner's 
Court, supra, a panel of this court noted that 

"The most crucial and precise instrument 
Of the. . . . denial 'of +the Dlack 
minority's equal access to political 
participation, however, remains the 
gerrymander of precinct lines so as to 
fragment what «could otherwise be a 
cohesive minority voting 
community. :. . . This dismemberment of 
the black voting community . . . [may 
have) the . . . effect of debilitating 
the organization and decreasing the 
participation of black voters." 

  

  

Kirksey v. Board of Supervisors, 554 F.2d 139, 149 (5th Cir.), 
  

cert. denied, 434 U.S. 968 (1977) (quoting from Robertson wv. 
  

  

Commissioner's Court, 505 F.2d 674, 679 (5th Cir. 1974). See 
  

also Carstens v. Lamm, 543 F.Supp. 68, 32 {(D.Colo. 1982) 
  

(three-judge court) (". . . a redistricting plan . . . should not 

fracture a natural racial or ethnic community. MT 

70  



Act 20's jagged line dissects a large concentrated community 

of black voters residing in Orleans Parish, dispersing that 

community into the First and Second Congressional Districts. 

With unerring precision, this line slices through the City's 

eraditional political subunit, the ward, in a racially selective 

manner, leaving intact predominantly white wards while carving up 

those densely populated by blacks. Homogeneous black precincts 

are separated; white precincts are not. Racial divisions have 

been preserved at the expense of parish boundaries33 and respect 

  

34. Expert testimony of Dr. Henderson establishes that these 

districts do not comply with the generally accepted 

reapportionment requirement of compactness. - Shape, a 

subcomponent of that requirement, see Karcher v. Daggett, 103 

S.Ct. at 2872-73 (Stevens, J., concurring), is one criterion by 

which district contours may be judged in a gerrymandering case. 
Id; Engstrom, The Supreme Court and Equipopulous Gerrymander 

1976, Ariz.St.L.J. at 280; . Reock, Measuring Compactness as a 

Requirement of Legislative Apportionment, 5 Midwest J.Poli.Sci. 
79, 71 Q91L). Justice Stevens nonetheless cautions against 
exclusive reliance upon odd or tortured configurations. 31 

v.S.L.W. at 4863 n.1S%. As Dr. BEBngstrom points out, 

"preoccupation with shapes may simply ‘confuse form with 

function,' as relatively symmetrical, compact, districts may 

effectively dilute a group's voting strength. . . ." 1976 

Aciz.St.L.J. at 280 (quoting from: R. Dixon, Democratic 
Representation: Reapportionment 1n Law and Politics 459 
(1968)). While acknowledging this concern, Professor Morrill is 

of the opinion that a compactness measure provides an efficacious 

defense against gerrymandering. R. Morrill, Political 
Redistricting and Geographic Theory at 21. It is important to 
note, however, that compactness is not demanded by federal law. 
Carstens v. Lamm; Skolnick v. State .Electoral Bd., 336 F.Supp. 
839 (N.D.Ill. 1971) (three-judge courc). 

  

  

  

3s. Another non-constitutional restraint imposed on 

cartographers is the principle that district lines must be drawn 

to coincide with governmental units such as the parish, ward or 
(Eootnote continued) 

71  



for the integrity of a natural geographic barrier, the 

Mississippi River.3® Dpiscordant communities of interest, those 

of New Orleans' older, urban core and its surrounding suburban 

neighborhoods, are joined. 37 Drs. Henderson and Engstrom both 

  

precinct. See R. Morrill, Political Redistricting and Geographic 
Theory at 25 (". . . use of political entities {[erects] . . . a 
significant barrier to gerrymandering whether for racial or 
partisan political reasons, since it prevents stringing together 
precincts of a particular character out of disparate political 
units"). "Indiscriminate districting, without any regard for 
political subdivision . . . lines, may be little more than an 
open invitation to partisan gerrymandering.” Reynolds v. Sims, 
377 U.S. 533, 578-79 (1964); American Bar Association Special 
Committee on Election Law and Voter Participation, Congressional 
Redistricting at 12 (1981) (Unnecessary disruption of these units 
not only "undermines the ability of constituencies to organize- 
effectively but also . . . increases the likelihood of voter 
confusion regarding other elections based on political 
subdivision geographics."). 

  

36. A plan's divergence from natural physical features, which 
tend to inject some regularity in district configurations, may, 
absent a legitimate justification such as adherence to the one 
person/one vote concept, violate the compactness requirement. 
See testimony of Dr. Gordon Henderson, Record, Vol. I at 
101-06. Here, the Mississippi is significant insofar as it 
affects persons residing on either bank. Orleans Parish's inner 
city blacks, separated from Jefferson Parish by the river, 
possess far different concerns from the suburban whites who dwell 
in the latter. 

37. By way of explanation of the significance of this 
apportionment criterion, Morrill observes: 

Citizens vote, in part, according to 
their identification with various 
interests, for example, religious values, 
occupation, class, or rural or urban 
orientation. There is a strong basis in 
arguing that "effective representation" or 
influence on the outcome is enhanced by 
grouping of like interests together. . . 
This is constitutionally required only with 

(footnote continued) : 

72  



testified that when coupled with the phenomenon of racially 

polarized voting, this combination of factors operated to 

minimize, cancel or dilute black voting strength. 

In the course of our analysis, we are not unmindful of the 

legitimate debate among academics and courts about the relative 

merits of concentrating a minority population within one district 

or dividing that population into two or more districts so that it 

exerts a substantial influence in each. 38 We are convinced that 

  

respect to race. The geographer will also 
observe that districts which correspond 
somewhat to nodal regions, a core urban area 
and its economic or cultural hinderland united 
by transportion and communications, will have 
a greater sense of unity, awareness of common 
problems, and, perhaps, participation than 
districts which arbitrarily combine disparate 
areas and ignore patterns of regional identity 
and loyalty. 

R. Morrill, Political Redistricting and Geographic Theory at 
23. See also Busbee v. Smith, 549 F.Supp. 494 (D.D.C. 1982) 
(three-judge court), aff'd mem., U.S. ry 103 S.Ct. 309 
(1983); Carstens v. Lamm, (three-judge court) (preservation of 
entire city as one district facilitated voter identity); again, 
this criterion is not prescribed by federal statutory or 
constitutional law. See id. 

  

  

  

38, See, e.q., Seamon v. Upham, 536 F.Supp. 931, 949 (E.D.Tex.) 
(three-judge court) rev'd on other grounds, 456 U.S. 37 (1982) 
(". «. «+ ([tlhere is no agreement on whether the political 
interests of a minority group are best maximized by an 
overwhelming majority in a single district, are majorities in 
more than one district or a substantial proportion of the voters 
in a number of districts"); United States v. Board of Supervisors 
Of Forrest County, 571 P.2d9 951, 936 and n.10 (Seth Cir. 1978) 
(citing various commentators). Compare Jordan v. Winter, 541 
F.Supp. 1135, 1143 (N.D.Miss. 1982) (three-judge court), vacated 
and remanded for further consideration in light of amended § 2, 
103 S.Ct. 2077 (1983) (where legislative preference for two 
(footnote continued) 

  

  

  

  

  

  

73  



in the present case, the division of the black population was not 

designed to enhance the effectiveness of the black electorate, 

nor is it likely to occasion such. 

Application of amended § 2's "results" test to the aggregate 

of the facts adduced at trial, including Louisiana's history of 

discrimination and the impact of that history on the present 

ability of blacks in Orleans Parish to join in the political 

process, the vestiges of discrimination which take the form of a 

marked disparity in the socio-economic conditions under which 

blacks and whites currently subsist, the parish's racially 

polarized voting, as exacerbated by the state's majority vote 

requirement, the tenuousness of the state policy underlying Act 

20 and the history of its enactment, and the manipulation of 

district boundary lines so as to fracture a cohesive minority 

  

minority districts with at least 40% population expressed, court 
found no constitutional or federal statutory bar thereto) with 
Kirksey v. Board of Supervisors, 554 F.2d at 150 (emphasis in the 
original) ("Where the cohesive black voting strength is 
fragmented among districts, [even] the presence of districts with 
bare black population majorities not only does not necessarily 
preclude dilution but . . . may actually enhance the possibility 
of continued minority political impotence."); Hartford, Racial 
Vote Dilution and Separation of Powers, 50 Geo.Wash.L.Rev. at 695 
{"« «+. the argument that the position of the minority is 
necessarily enhanced by an opportunity for "coalition building" 
{through a districting plan that disperses their votes among 
several districts] is disingenuous, to say the least, when made 
in reference to a locale with well-established patterns of racial 
division and racial bloc voting where the minority has 
systematically been submerged and ignored."); Note, 
Constitutional Challenges to Gerrymanders, 45 U.Chi.L.Rev. 845, 
846 (1978) (splitting a voting group among several districts may 
have the effect of diluting the political power of that group). 

  

  

74  



voting bloc, preponderates in favor. of the @ plaintiffs. 

Circumstantial evidence that race played a role in the confection 

of Act 20 also figures in the court's calculus, although we have 

not engaged in the intent analysis permitted by § 2.39 Based on 

the totality of relevant circumstances, therefore, the court 

concludes that the contours of the First and Second Congressional 

Districts, as established by Act 20, operate to deny or abridge 

the rights of minority voters, who are accorded less opportunity 

than other members of the electorate to participate in the 

political process and to elect representatives of their choice. 

Defendants' showing that political motivations were the 

primary impetus behind the configuration of the First and Second 

Districts does not provide persuasive rebuttal evidence of 

nondilution. We agree that legislators do not operate in a 

vacuum; hence, partisan politics cannot realistically be divorced 

from any redistricting effort. See Gaffney v. Cummings, 412 U.S. 
  

at 753; In re: Pennsylvania Congressional Districts 
  

Reapportionment Cases, Civil Action No. 82-0197, slip op. at 
  

23a-24a (M.D.Pa. 1982), aff'd mem. sub nom. Simon v. Davis, 51 
  

  

39. Given our conclusion that Act 20 results in a dilution of 
black voting strength, we need not draw the ultimate inference of 
purposeful discrimination from : the composite of factors 
heretofore outlined. The courc: has nevertheless taken into 
account, as but one aspect of the totality of circumstances, the 
evidence that opposition to the creation of majority black 
district was responsible, to a significant extent, for the defeat 
of the Nunez Plan and the substitution of Act 20. 

25  



U.S.L.W. 3937 (U.s.S.Ct., July 7, 1983). The protection of 

existing relationships among incumbents and their constituents, 

and the benefits accruing to the state from the seniority its 

delegation may have achieved in Congress, are pragmatic 

considerations which often figure prominently in the drawing of 

congressional districts. These considerations are not 

talismanic, however, and may not serve to protect incumbents by: 

imposing an electoral scheme which splinters a geographically 

concentrated black populace within a racially polarized parish, 

thus minimizing the black citizenry's electoral participation. 

Nor do other factors invoked by defendants overcome 

plaintiffs’ prima facie showing. Reliance on New Orleans’ 
  

tradition of dual congressional representation can no longer be 

justified in light of the City's substantial decline in 

population. Nor is there credible demographic evidence that the 

black population of either the First or Second Districts will 

increase to a significant degree over the next decade. 

Accordingly, the court is of the opinion that plaintiffs are 

entitled to judgment on their voting dilution claim. 

C. Remedy 

Having determined that Act 20 does not, in respect to the 

First and Second Congressional Districts, comply with the mandate 

of amended § 2 of the Voting Rights Act of 1965, judgment will be  



entered declaring Act 20 violative of federal law and enjoining 

the defendants from conducting elections pursuant to its terms. 

Recognizing that "state legislatures have ‘primary jurisdiction’ 

over legislative reapportionment,” White v. Weiser, 412 U.S. 783, 
  

795 (1973), we shall temporarily defer further action in order to 

provide the Louisiana Legislature with a reasonable opportunity 

to act within federal statutory and constitutional limits and 

enact a valid new plan for the election of members to the United 

States House of Representatives. 40 Once a court declares an 

existing legislative reapportionment scheme unlawful, it is 

"appropriate, whenever "practicable, to afford a reasonable 

opportunity for the legislature to meet constitutional [or 

federal statutory] requirements by adopting a substitute measure 

rather than for the federal court to devise and order into effect 

its own plan." Wise v. Lipscomb, 437 U.S. 535, 540 (1978). See 
  

also McDaniel v. Sanchez, 452 U.S. 130 (1981); Connor v. Finch, 
    

431 U.S. 407 (1977); PFlateay vv. Anderson, 337 P.Supp. 257 
  

{(S.D. N.Y. 1982) (three-judge court), cert. dism., 103 S.Ct. ‘3 
  

(1983). The filing period for congressional candidates will be 

during the summer of 1984. Thus, there ‘is ample time for the 

legislature to meet and consider a new redistricting scheme. 

  

40, Defendants urged this alternative during oral argument, 
requesting that in the event of Act 20's invalidation, the court 
forego the imposition of a judicially-constructed plan and permit 
the legislature to attempt the confection of a new plan. 

17  



Should the legislature, or the Governor, choose not to act, 

we shall acquit our responsibility to develop and implement a 

remedial plan. Accordingly, defendants are invited to present to 

this court, on or before January 31, 1984, a duly-enacted 

legislative plan. This court will reconvene on February 6, 1984 

to entertain the parties’ suggestions for congressional 

districting. In the absence of an acceptable legislative 

solution, the court will fashion an appropriate plan. 

Consideration of plaintiffs’ request for attorneys' fees and 

costs shall be deferred until adoption of an appropriate remedy. 

Counsel shall promptly prepare and present to the court a 

judgment consistent with this memorandum opinion. 

IT IS SO ORDERED. 

 



  

  

  
    
  

      
  

    ACT 20 

DISTRICT 1 EIS Teak Cotorn, 
DISTRICT 2 3 ri tes Ren ist rag fon 

pe. 17 

Two 397 

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DISTRICT 1 EES 
DISTRICT 2 EE     

Black Vnter 

ists let 

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One 

Two 

  
Registrat ion 

12 

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Pristricth One 

pistrict Two 
  

PRIOR DISTRICTS 

DISTRICT 1 EES 
DISTRICT 2 EEE