County of Los Angeles v. Garza Petition of Writ of Certiorari

    No. 9 0 -

In  T he

S u prem e C o u rt of C ljc  ®niteb s ta te s
OCTOBER TERM, 1990 

COUNTY OF LOS ANGELES, et al,

Petitioners,
v.

YOLANDA GARZA, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED 
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

D e W it t  W. Clinton  
COUNTY COUNSEL OF 

LOS ANGELES 
M ary W aw ro  
SENIOR ASSISTANT 

COUNTY COUNSEL 
648 Hall of Administration 
500 W. Temple Street 
Los Angeles, CA 90012 
Telephone: (213) 974-1811

R ichard  K. Simon  
Lee  L. Blackm an  
Erich  R. Luschei
McDe r m o t t , w il l  & e m e r y

2029 Century Park East,
Suite 3800

Los Angeles, CA 90067-2917 
Telephone: (213) 277-4110

John  E. M cD erm ott 
660 S. Figueroa Street, Suite 2300 
Los Angeles, CA 90017 
Telephone: (213) 955-4600

Counsel o f Record for Petitioners
J ohn  E. M cD erm ott  
R ichard  C. F ield  
Evan  M. E island  

Cadwalader Wickersham & Taft 
660 S. Figueroa Street, Suite 2300 
Los Angeles, CA 90017 
Telephone: (213) 955-4600

G len  D. N ager 
JONES, DAY, REAVIS & POGUE 

1450 G Street, N.W. 
Washington, D.C. 20005-2088 
Telephone: (202) 879-3939

Counsel for Petitioners 
County  of Los A n geles , et al.

November 30, 1990



1

Questions Presented

1. Whether the one-person, one-vote, equal protection rule of 
Reynolds v. Sims requires single member districts to be equal in 
population or equal in citizens (or eligible voters)?

2. Whether Reynolds obligates a reapportioning body drawing 
districts that are equal in population to minimize variations in 
citizens and voters among the districts?

3. Whether a district court properly may infer invidious intent 
from the adoption of a redistricting plan containing no material 
change in boundaries, where the district court expressly found no 
racial animus, where a minority group has disavowed interest in 
a concentrated minority district and where the reapportioning 
body failed to take affirmative action to create a minority 
concentrated district because of a partisan political stalemate?

4. Whether a remedial redistricting plan that places the 
remedial district in a district other than that which was the basis 
for the liability finding and which is not specifically tailored to 
curing the discriminatory effects of prior redistricting exceeds the 
remedial power of the district court?

5. Whether the “Thornburg effects” are the effects that must 
be proven in a vote dilution case alleging intentional 
discrimination?

6. Whether a district court exceeds its remedial power by 
imposing a Thornburg majority district remedy without first 
requiring proof of the “Thornburg effects”?

7. Whether the decennial redistricting rule established in 
Reynolds v. Sims should foreclose a postcensal challenge to a 
redistricting plan valid under Section 2 of the Voting Rights Act 
at the time it was adopted?



Rule 14.1(b) List of Parties

The petitioners (defendants-appellants in the proceedings 
below) are County of Los Angeles; Los Angeles County Board of 
Supervisors; Deane Dana, Peter F. Schabarum, and Michael D. 
Antonovich, County Supervisors; Richard B. Dixon, County 
Administrative Officer; and Frank F. Zolin, County 
Clerk/Executive Officer.

The respondents (plaintiffs-appellees in the proceedings 
below) are Yolanda Garza, Salvador H. Ledezma, Raymond 
Palacios, Monica Tovar and Guadalupe De La Garza, 
individually and on behalf of all Hispanic registered voters in Los 
Angeles County; and United States of America. The respondents 
(intervenors-appellees in the proceedings below) are Lawrence K. 
Irvin, Rev. James M. Lawson, Jr., John T. McDonald, Jr., 
Ernestine Peters, Los Angeles Branch NAACP (National 
Association for the Advancement of Colored People), Southern 
Christian Leadership Conference of Greater Los Angeles, and 
The Los Angeles Urban League, individually and on behalf of all 
Black registered voters in Los Angeles County; and Sarah Flores. 
The respondents (defendants in the District Court and filed a 
Brief in Support of Plaintiffs-Appellees in the Court of Appeals) 
are Kenneth Hahn and Edmund D. Edelman, County 
Supervisors.

ii



Ill

TABLE OF CONTENTS

Page

Questions Presented ............................................................. i
Rule 14.1(b) List of Parties  ........................................ ii
Table of Authorities.............................      vi
Opinions Below ..........................................................  1
Jurisdiction.........................................................................  2
Constitutional Provisions and Statutes Involved................ 2
Statement of the Case ........................................................  3
Reasons for Granting the W rit........................................... 5

I. THE REMEDIAL PLAN IS INVALID ON 
TWO SEPARATE EQUAL PROTECTION 
ONE PERSON ONE VOTE GROUNDS . . .  6
A. The Remedial Plan Provides Voters In 

One District With The Equivalent Of 
Twice As Many Votes As Voters In The 
County’s Other D istricts.....................  6

B. The Court of Appeals Majority Incorrectly 
Assumed That There Was No Way Or 
No Obligation To Harmonize Represen­
tational Equality And Electoral Equali­
ty ........................................................... 11

II. THE COURT OF APPEALS RULING 
THAT THE BOARD OF SUPERVISORS 
INTENTIONALLY DISCRIMINATED 
AGAINST HISPANICS CONFLICTS 
WITH DECISIONS OF THIS COURT 
AND RESTS ON IMPORTANT CONSTI­
TUTIONAL AND STATUTORY QUES­
TIONS OF LAW WHICH HAVE NOT 
BEEN BUT SHOULD BE SETTLED BY 
THIS COURT  ..................................... 12



IV

Page

A. The Courts Below Applied An Erroneous 
Definition Of Invidious Intent To A 
Redistricting Plan Containing No Ma­
terial Change In Boundaries Admit­
tedly Adopted Without Racial Animus 
In Circumstances Where The Hispanic 
Community Disavowed Interest In A
Concentrated Hispanic District.......... 13

B. The Remedy Does Not Match The Dis­
criminatory Purpose Findings............ 19

III. THE COURT OF APPEALS RULING THAT
BECAUSE PLAINTIFFS PROVED THAT 
THE BOARD ACTED WITH A DISCRIM­
INATORY INTENT, THEY DID NOT 
HAVE TO PROVE THE THORNBURG 
PRECONDITIONS OR RACIAL NON­
RESPONSIVENESS CONFLICTS WITH 
DECISIONS OF THIS COURT AND 
RAISES IMPORTANT CONSTITU­
TIONAL AND STATUTORY QUES­
TIONS OF LAW WHICH HAVE NOT 
BEEN BUT SHOULD BE SETTLED BY 
THIS COURT ..............................................  22
A. The Courts Below Erred As A Matter Of

Law In Their Determination That 
Proof Of Racially Discriminatory Ef­
fects Of The Sort Required In A Sec­
tion 2 Claim Is Not Required In A 
Case Alleging Intentional Discrimina­
tion ..................... ...............................  23

B. The Courts Below Imposed A Thornburg
Remedy On The Basis Of Non-Thorn­
burg Liability, And Consequently The 
Remedy Bears Virtually No Relation­
ship To And Vastly Exceeds That 
Which It Should Have Been Designed 
To Rectify 26



V

Page

IV. THE DECENNIAL REDISTRICTING RULE
BARS PLAINTIFFS’ SECTION 2 CLAIM .. 27

Conclusion............................................................................ 30
Appendix......................................................  Appendix Volume



VI

TABLE OF AUTHORITIES

CASES
Ambach v. Norwich, 441 U.S. 68 (1979).......................  11
Arlington Heights v. Metropolitan Housing Corp., 429

U.S. 252 (1977) ....................................................... . 19
Bacon v. Carlin, 575 F.Supp. 763 (D.C. Kan. 1983), 

affd, 466 U.S. 966 (1984). .........................................  29
Board of Estimate v. Morris, U.S. , 109 S.Ct 1433

(1989).......................................................................... 9
Burns v. Richardson, 384 U.S. 73 (1966).......................  9, 10
Cabell v. Chavez-Salido, 454 U.S. 432 (1982)...............  11
Carrington v. Rash, 380 U.S. 89 (1965).........................  10
City o f Cleburne v. Cleburne Living Center,

473 U.S. 432 (1985)...................................................  19
City o f Mobile v. Bolden, 446 U.S. 55 (1980)...............  Passim
Clark v. Jeter, 486 U.S. 456 (1988)...............................  29
Davis v. Bandemer, 478 U.S. 109 (1986).......................  23
Foley v. Connelie, 435 U.S. 291 (1978).........................  11
Gingles v. Edmisten, 590 F.Supp. 345 (E.D.N.C. 1984), 

affd in part, rev 'd in part sub nom.,
Thornburgh v. Gingles, 478 U.S. 30 (1986).............. 23

Graham v. Richardson, 403 U.S. 365 (1971).................  10
Harper v. Virginia Board of Elections,

383 U.S. 663 (1966)...................................................  10,29
Hunter v. Underwood, 471 U.S. 222 (1985) .................  19

Page(s)



Loving v. Virginia, 388 U.S. 1 (1967).............................  29
McClesky v. Kemp, 481 U.S. 279 (1987).......................  23

McMillan v. Escambia County, 638 F.2d 1239 (5th Cir,
1981), cert dism’dsub nom., Pensacola v. Jenkins, 453 
U.S. 946 (1981), vacated in part, 688 F.2d 960 (5th 
Cir. 1982)....................................................................  16

McNeil v. Springfield Park Dist., 851 F.2d 937 (7th Cir.
1988), cert, denied, U.S. , 109 S. Ct. 1769 
(1989).......................................................................... 25

Milliken v. Bradley, 418 U.S. 717 (1974).....................  19, 20
Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274

(1977).......................................................................... 19

Personnel Administrator o f Mass. v. Feeney, 442 U.S. 256 
(1979)........................................................................  Passim

Reynolds v. Sims, 377 U.S. 533 (1964).........................  Passim
Rogers v. Lodge, 458 U.S. 613 (1982)...........................  24
Rybicki v. State Board o f Elections, 574 F.Supp. 1082

(N.D. 111. 1982)..........................................................  17, 18
Swann v. Charlotte Mecklenburg Board o f Education,

402 U.S. 1 (1971)........................................................  19,20
Thornburg v. Gingles, 478 U.S. 30 (1986).......................  Passim
WMCA, Inc., v. Lomenzo, 238 F.Supp. 916, (S.D.N.Y.

1965), affd per curiam, 382 U.S. 4 (1965), vacated as 
moot, 384 U.S. 887 (1966).....................   9

WMCA, Inc. v. Lomenzo, 377 U.S. 633 (1964).............. 9
Whitcomb v. Chavis, 403 U.S. 124 (1971).....................  25
White v. Daniel, 909 F.2d 1042 (5th Cir. 1990)............ 29
White v. Register, 412 U.S. 755 (1973).........................  24, 25
White v. Weiser, 412 U.S. 783 (1973)...........................  16

vii

Page(s)



Page(s)
Winter v. Docking, 373 F.Supp. 308 (D. Kan.

(1974) ....................................................................  9
Wyche v. Madison Parish Police Jury, 769 F,2d 265

(5th Cir. 1985)......................................................  16
Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir.

1973), a jf  d sub nom., East Carrol Parish School v.
Marshall, 424 U.S. 636 (1976)............................. 23

STATUTES, RULES AND REGULATIONS
28 U.S.C. § 1254(1)..................................................  2
42 U.S.C.A. § 1973 (1965) as amended by Act of 

June 29, 1982, Pub. L. 97-205 § 3, 96 Stat. 134 .. passim
U.S. Const. Amend. XIV, § 1 ..................................  2,3
U.S. Const. Amend. XV, § 1 ...................................  2,3

California Election Code § 35000 (West 1989)........ 3
California Election Code § 35001 (West 1989)........ 3
California Gov’t Code § 25005 (West 1988) . . . . . . .  3,22

Los Angeles County Charter, Article II, § 7 .......... 3,15,21,22

Vlll



In The

Supreme Court of Qtt)t SJititeb states;
OCTOBER TERM, 1990

COUNTY OF LOS ANGELES, et al,

Petitioners,

v.

YOLANDA GARZA, et al,

Respondents.

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT

Petitioners County of Los Angeles and three members of the 
Los Angeles County Board of Supervisors (collectively the 
“County”) respectfully pray that a writ of certiorari issue to 
review the judgment and mandate of the United States Court of 
Appeals for the Ninth Circuit (the “Court of Appeals”) entered 
in this proceeding on November 2, 1990.

Opinions Below

The Order of the United States District Court, Central District 
of California (David V. Kenyon, District Judge), denying the 
County’s motion for summary judgment is unreported and 
appears in the Appendix at A-230. The Findings of Fact and 
Conclusions of Law (“Findings”) of the District Court is 
unreported and appears in the Appendix at A-50. The Order of 
the District Court that sets forth the Remedial Plan is unreported 
and appears in the Appendix at A-152. The Order of the Court



2

of Appeals motions panel (Nelson, Beezer, and Kozinski, Circuit 
Judges), temporarily granting a stay of the District Court’s initial 
injunction order pending oral argument on the County’s stay 
application and granting a motion for expedited scheduling of the 
appeal is unreported and appears in the Appendix at A-220. The 
Order of the Court of Appeals motions panel staying the District 
Court’s initial injunction order pending a decision by the Court 
of Appeals on the merits is unreported and appears in the 
Appendix at A-164. The Order of the Court of Appeals merits 
panel (Schroeder, Nelson and Kozinski, Circuit Judges) denying 
the County’s request for judicial notice is unreported and appears 
in the Appendix at A-194. The opinion of the Court of Appeals 
(Schroeder, Nelson and Kozinski, Circuit Judges; Kozinski, 
Circuit Judge, concurring and dissenting in part) is reported at 
1990 U.S. App. LEXIS 19470 and appears in the Appendix at 
A-l. The Order of the Court of Appeals denying the County’s 
petition to recall the mandate is unreported and appears in the 
Appendix at A-49.1

Jurisdiction
The judgment and mandate of the Court of Appeals was 

entered on November 2, 1990. This petition for certiorari is filed 
within 90 days of that date. Jurisdiction is invoked under 28 
U.S.C. §1254(1).

Constitutional Provisions And Statutes Involved2
The constitutional provisions and statutes involved in this case 

include:
i. U.S. Const, amend. XIV, §1.
ii. U.S. Const, amend. XV, §1.
iii. 42 U.S.C. §1973 (1965) as amended by Act of June 29, 

1982, Pub. L. 97-205 §3, 96 Stat. 134 (“Section 2 of the 
Voting Rights Act” or “Section 2”).

1 Concurrently with the filing of this petition, the County has submitted an 
application for a recall of the mandate of the Court of Appeals and for a stay 
thereof pending a decision on this petition.
2 Pursuant to Supreme Court Rule 14.1(f), the pertinent text of the provisions 
cited in this section are set forth in the Appendix at A-358 to A-360.



3

iv. California Election Code §35000 (West 1989).
v. California Election Code §35001 (West 1989).
vi. California Government Code §25005 (West 1988).
vii. Los Angeles County Charter Article II, §7.

Statement Of The Case

This petition arises from two cases challenging the legality of a 
redistricting plan adopted by the five-member Los Angeles 
County Board of Supervisors (the “Board”) on September 24, 
1981. On August 24, 1988, seven years after the 1981 redistricting 
plan was adopted, the Garza plaintiffs filed suit, alleging that the 
redistricting plan violated Section 2 of the Voting Rights Act 
because the district lines fragmented the Hispanic community, 
thereby diluting Hispanic voting strength. The Garza plaintiffs 
also alleged that the redistricting plan was adopted for a racially 
discriminatory purpose in violation of Section 2 and the 
Fourteenth and Fifteenth Amendments to the United States 
Constitution. (Appendix (“App.”) A-58, Findings 9-11). On 
September 8, 1988, the United States filed a separate action which 
alleged that the redistricting plan violated Section 2. (App. A-58, 
Finding 9).

The Board subsequently moved to dismiss the actions on the 
grounds of laches and mootness. The Board argued that because 
the plaintiff's unreasonably delayed seven years in bringing suit, 
and that the Board would soon redistrict following the 1990 
census, plaintiffs’ claims should be dismissed. The Board also 
moved for summary judgment on plaintiffs’ Section 2 claims on 
the basis that demographic evidence unequivocally showed that 
it was impossible in 1981 to create a district in which Hispanics 
would constitute a majority of eligible voters. Both motions were 
denied (App. A-230), and the parties proceeded to trial. On June 
4, 1990, the day before the primary election for Supervisorial 
Districts 1 and 3, the District Court below found in favor of the 
plaintiff's on their Section 2 and constitutional claims. (App. 
A-53).



4

In the June 5 primary, incumbent Supervisor Edmund D. 
Edelman was reelected to District 3. (App. A-209). In the District 
1 contest, ten candidates ran for the office. (App. A-226). Sarah 
Flores, an Hispanic candidate, was the frontrunner. She received 
35% of the total vote, including 68% of the Hispanic vote and 
31% of the nonHispanic vote. Gregory O’Brien polled second 
with 20% of the vote. {Id.). Therefore, Ms. Flores and Mr. 
O’Brien were scheduled to face each other in a runoff election on 
November 6, 1990 in the last election under the 1981 redistricting 
plan.

The remedial proceedings commenced before the district 
court on July 23, 1990. On August 1, 1990, the district court 
rejected the County’s proposed remedial plan (See App. A-197) 
and on August 3, 1990, adopted a plan drawn by plaintiffs. (App. 
A-216).

On August 6, 1990, the district court entered a permanent 
injunction enjoining the November 6, 1990 runoff election for 
District 1, setting aside the results from the June 5 District 1 
primary, and ordering the County to implement a special primary 
election in November under the plaintiffs’ remedial plan. (App. 
A-152). On August 16, 1990, a split motions panel of the Ninth 
Circuit (Judge Beezer and Kozinski in favor, and Judge Nelson 
against) entered a stay of the special election pending resolution 
of the merits of the County’s appeal. (App. A-164).

On November 2, 1990, a merits panel of the Ninth Circuit 
(Judges Schroeder, Nelson, and Kozinski) entered a decision 
which unanimously upheld the district court’s determination on 
liability but was divided in upholding the propriety of the remedy 
adopted by the district court. (App. A-l). In a carefully reasoned 
dissent, Judge Kozinski demonstrated that the remedial plan of 
the district court violates the one-person, one-vote doctrine 
because, even though all five districts are equal in population, one 
district has two to three times more voters and citizens than 
another, thereby substantially overvaluing the votes of voters in 
one district while undervaluing the votes of voters in other



5

districts. The majority of the merits panel ordered the matter 
remanded to the district court and instructed the district court to 
schedule a new primary election at the earliest practical 
opportunity.

On November 8, 1990, the district court adopted a schedule 
under which candidate filing commenced on November 9, 1990, 
and a special primary election will be held on January 22, 1991. 
(App. A-165). On November 27, the County’s Petition for 
Rehearing En Banc was deemed denied.

Reasons for Granting the Writ
This case raises some of the most significant voting rights issues 

since the Court’s decision in Thornburg v. Gingles, 478 U.S. 30 
(1986).

First, it raises an issue of enormous constitutional significance 
which a panel of the Ninth Circuit could not resolve 
unanimously, namely whether the one-person, one-vote rule of 
Reynolds v. Sims, 377 U.S. 533 (1964), requires districts to be 
equal in population or equal in citizens (or eligible voters). This 
momentous question is important to every political jurisdiction in 
the Southwest and elsewhere with large concentrations of 
noncitizens.

Second, the intentional discrimination determination not only 
conflicts with this Court’s standard for proving intentional 
discrimination articulated in Personnel Administrator o f Mass. v. 
Feeney, 442 U.S. 256 (1979), but the implications of that 
determination are that every redistricting motivated by partisan 
considerations or a desire to preserve incumbencies is invalid if it 
fails to maximize minority political influence or compensate for 
the effects of long past decisions.

Third, this case raises important questions about the scope of 
federal district court remedial powers in fashioning redistricting 
plans, questions which are especially timely in view of the 
imminent release of the 1990 census and the redistrictings and 
redistricting litigation that will follow. The district court’s 
remedial plan bears no resemblance to its discriminatory purpose



6

findings which would compel a far different remedy. Remedy, in 
short, bears little relationship to liability.

Fourth, the Court of Appeals erred as a matter of law in not 
requiring proof of the Thornburg effects in a case alleging 
intentional discrimination and in imposing a drastic Thornburg 
majority district remedy without proof of the Thornburg effects, 
in lieu of a more modest remedy commensurate with the 
discriminatory purpose findings. The implications of that decision 
for vote dilution litigation are staggering because without 
Thornburg's effects test there is no way to measure vote dilution, 
or to determine whether it was caused by the electoral scheme 
under challenge or to draw a remedy bounded by the theory of 
liability.

Finally, if the Court of Appeals’ decision affirmed the district 
court’s determination that a Section 2 violation was proven on the 
basis of post-1980 demographic changes, then it raises the 
fundamental constitutional question whether the decennial 
redistricting rule established in Reynolds v. Sims should foreclose 
a challenge to a redistricting plan valid under Section 2 at the 
time it was adopted.

These issues are not settled in Voting Rights Act or equal 
protection jurisprudence.

I.

THE REMEDIAL PLAN IS INVALID ON TWO 
SEPARATE EQUAL PROTECTION ONE-PERSON, 

ONE-VOTE GROUNDS
A. The Remedial Plan Provides Voters in One District with the 

Equivalent of Twice as Many Votes as Voters in the 
County’s Other Districts

The most compelling basis for reversing the decision of the 
Ninth Circuit is discussed in detail in Judge Kozinski’s dissenting 
opinion. Essentially, he believed that the district court’s remedial 
plan created unacceptable variations in citizens among 
supervisorial districts in violation of the one-person, one-vote 
principle announced by this Court in Reynolds v. Sims, 377 U.S.



7

533 (1964), to the point where the value of a vote cast in one 
district is over twice the value of a vote cast in another.

The panel majority did not view such variations in citizenship 
as constitutionally significant so long as the five districts in the 
remedial plan were equal in total population. Judge Kozinski 
found the constitutional problems of unequal voting power to be 
impermissible, whether or not population parity was achieved. He 
was of the view that equality of voting power is constitutionally 
primary.

Judge Kozinski carefully summarized the prior Supreme Court 
jurisprudence which supports the principle of electoral equality 
(creating five districts each equal in the number of citizens) in 
preference to the principle of representational equality (five 
districts each equal in total population) adopted by the panel 
majority. Surely, such a fundamental conflict of constitutional 
principles warrants Supreme Court review, particularly where as 
here an unprecedented factual situation of enormous political and 
social consequence has been presented that will affect imminent 
redistrictings in countless political jurisdictions in the Southwest 
with large concentrations of noncitizens.

The remedial plan contains five supervisorial districts that are 
nearly equal in population. Yet the district court’s August 6 
findings reveal that District 1 (the Hispanic District) has nearly 
400,000 fewer voting age citizens than District 3, a variance of 
40%. (App. A-154). Those findings also reveal that District 1 has 
only 366,145 registered voters, while District 5 has over two times 
that number, or 835,408 registered voters (App. A-155), a 
variance of 70%. (See Ex. 1520, App. A-336). As a result, the 
value of a vote in District 1 is worth over twice what a vote in 
District 5 is worth and District 1 will control one-fifth of the 
Board seats with but one-tenth of the voters in the County.

How is it possible to create districts equal in population but so 
unequal in citizens? By packing non-citizens into District 1. It is 
undisputed that if one uses either citizenship or voting age 
citizenship instead of total population as the apportionment base,



one cannot form a majority Hispanic voting age citizen district 
in 1980 or 1990. (Ex. 4151A, App. A-340). That is because only 
42% of Los Angeles County’s Latinos age 18 and older are 
citizens, compared to 97% of Blacks and 95% of Whites. Latinos 
were 27.6% of the County’s population in 1980 but only 14% of 
its citizens. Hispanic total population therefore is not a good 
measure of the distribution of Hispanic voting age citizens. 
Hispanic voters and citizens, moreover are residentially dispersed 
throughout Los Angeles County in a nonrandom manner. 
Essentially, those who are citizens and eligible to vote do not live 
where most immigrant, noncitizen Hispanics live. For example, 
67% of Spanish origin registered voters live in precincts which 
are less than 40% Spanish origin. (Ex. 5540, App. A-337). 
Hispanic citizens, in other words, are distributed quite differently 
from Hispanic persons.

The remedial plan, in effect, burdens the right to vote of 
citizens in other districts to benefit citizens in District 1, by 
concentrating people in District 1 who legally are not entitled to 
vote. This distributes political power on the basis of the presence 
o f noncitizens, a criterion unrelated to and in fact at odds with 
the exercise of that franchise by the only people entitled to 
exercise that franchise—citizens. This is crucial to understand— 
plaintiffs are claiming a right to a district packed with Hispanic 
noncitizens who are not even covered by Section 23 * to ensure an 
Hispanic voting age citizen majority that otherwise cannot be 
created in 1980 or in 1990.

Reynolds clearly commands rejection of such districts:
And, if a State should provide that the votes o f citizens in one 
part of the State should be given two times, or five times, or 
10 times the weight of votes of citizens in another part of the 
State, it could hardly be contended that the right to vote of 
those residing in the disfavored areas had not been effectively 
diluted.

3 Section 2 only protects “members of the electorate,” i.e., citizens. Thus, while
Section 2 authorizes packing of Hispanic citizens into a district, within the limits 
of the one-person, one-vote rule, it does not authorize the packing of non­
citizens.



9

377 U.S. at 562, see also at 566-67 (“The basic principle of 
representative government remains, and must remain unchanged 
—the weight of a citizen’s vote cannot be made to depend on 
where he lives.”). And more recently in Board o f Estimate v. 
Morris, the Court stated: “The personal right to vote is a value in 
itself, and a citizen is, without more and without mathematically 
calculating his power to determine the outcome of an election, 
shortchanged i f  he may vote for only one representative when 
citizens in a neighboring district, o f equal population, vote for two-, 
or to put it another way, if he may vote for one representative 
and the voters in another district half the size also elect one 
representative.” U.S. , 109 S.Ct. 1433, 1440, (1989) 
(emphasis added).

The Supreme Court, moreover, has made clear that citizenship 
is a permissible apportionment base and that a state need not 
include aliens in the apportionment base.5 In Burns v. Richardson, 
384 U.S. 73 (1966), for example, the Court stated:

Neither in Reynolds v. Sims nor in any other decision has this 
Court suggested that the States are required to include aliens, 
transients, short-term or temporary residents, or persons 
denied the vote for conviction of crime, in the apportionment 
base by which their legislators are distributed and against 
which compliance with the Equal Protection Clause is to be 
measured.

384 U.S. at 92.6 In Burns, while the Court made clear that states 
are not required to include “aliens,” among others, in the 
apportionment base, it declined to rule that they must be
5 See WMCA, Inc. v. Lomenzo, 377 U.S. 633 (1964) (upholding New York’s 
state constitution which apportioned on the basis of citizenship); see also 
WMCA, Inc. v. Lomenzo, 238 F. Supp. 916 (S.D.N.Y. 1965), expressly 
upholding citizenship as the apportionment base, ajfd  per curiam, 382 U.S. 4 
(1965) (Justice Harlan referred to lower court decision as “eminently correct”), 
vacated as moot, 384 U.S. 887 (1966) and discussion in Burns, 384 U.S. at 91 
(such an apportionment “presented problems no different from apportionments 
using a total population measure”); see also Winter v. Docking, 373 F. Supp. 308 
(D. Kan. 1974) (upholding Kansas agricultural census which excludes aliens).
6 “While Burns does not, by its terms, purport to require that apportionments 
equalize the number of qualified electors in each district, the logic of the case

(Footnote continued on following page)



10

excluded, because that decision “involves choices about the 
nature of representation with which we have been shown no 
constitutionally founded reason to interfere.” 384 U.S. at 92. 
Immediately thereafter the Court stated that choices about the 
apportionment base are sometimes constrained by the 
Constitution, citing Carrington v. Rash, 380 U.S. 89 (1965) as an 
example. Id. The Burns Court did not address the question 
whether or when the Reynolds right itself, a citizen’s right to 
undebased voting, might itself provide such a constitutional 
constraint on apportionment base choices, because that issue was 
not before the Court. This, of course, is the issue before the Court 
in this case.7

(Footnote continued from previous page)
strongly suggests that this must be so . . . . [I]n a situation such as ours—as 
that in Burns—one or the other of the principles must give way. If the ultimate 
objective were to serve the representational principle, that is to equalize 
populations, Burns would be inexplicable, as it approved deviations from strict 
population equality that were wildly in excess of what a strict application of that 
principle would permit.” (footnote omitted) Kozinski, Dissenting Opinion 
(App. A-39).
7 Judge Kozinski correctly noted in his dissenting opinion that “[w]hen 
considered against the Supreme Court’s repeated pronouncements that the right 
being protected by the one-person, one-vote principle is personal and limited to 
citizens, [the majority’s arguments] do not carry the day.” (App. A-40). Indeed, 
the majority decision is deeply flawed and in fact implicitly rests on the 
invention of a new and heretofore unrecognized right, a right all people 
evidently hold to “equal representation.”

This Court has long recognized that “the right to vote in state elections is 
nowhere expressly mentioned” in the Constitution, Harper v. Virginia State 
Board of Elections, 383 U.S. 663, 665 (1966). Nor has the Supreme Court ever 
recognized any implied equal representation constitutional right. Indeed, such a 
right is inconsistent with the only voting right that the Supreme Court has 
implied, namely the “equal right to vote.”

Supreme Court decisions virtually exclude the possibility of any such implied 
right. Noncitizens are strongly protected against discrimination because ever 
since Graham v. Richardson, 403 U.S. 365 (1971), state and local governments 
have been barred from discriminating against them in the distribution of 
economic benefits. Exactly the opposite is true, however, with regard to 
discriminations for the purpose of defining state or local political communities. 
For example, in holding that New York could bar noncitizens from employment 
as state police personnel the Court recognized that the states had an “historical 
power to exclude aliens from participation in its democratic political 
institutions, as part of the sovereign’s obligation to preserve the basic concept

(Footnote continued on following page)



11

B. The Court of Appeals Majority Incorrectly Assumed that 
there Was No Way to Harmonize Representational Equality 
and Electoral Equality

Even using total population as the apportionment base, it is 
undisputed that plaintiffs could have created five districts equal 
in population but without such gross variances in citizens and 
registered voters. (RT 3/15/90 at 4-20, App. A-318). Of course, 
had they done so, Latinos would not be a majority of the voting 
age citizens in any district even today and they would not be able 
to meet Thornburg’s geographic compactness condition. Use of 
harmonizing criteria, then, would have necessitated dismissal of 
plaintiffs’ Section 2 claim and a far less drastic remedy for the 
intentional discrimination determination than the Thornburg 
majority district remedy imposed by the district court.

The County had attacked the district court remedial plan on 
two separate equal protection one-person, one-vote grounds:

(i) That where total population is a poor predictor
statistically of the distribution of citizens as in the present 
case, citizenship—not total population—is the
constitutionally required apportionment base for one-person, 
one-vote purposes. This is the clash between electoral and 
representational equality discussed in section I. A, supra-, and

(ii) That the reapportioning body (here the district court) 
is constitutionally obligated at least to attempt to satisfy both 
aspects of the one-person, one-vote doctrine, i.e., if utilizing 
districts equal in population, it must minimize variances in 
citizens and in voters to the extent possible.

(Footnote continued from previous page)
of a political community.” Foley v. Connelie, 435 U.S. 291, 295-96 (1978). The 
Court reiterated this point in Cabell v. Chavez-Salido, 454 U.S. 432 (1982), in 
upholding a California law requiring that “peace officers” be citizens, and in 
Ambach v. Norwich 441 U.S. 68 (1979), in upholding a Connecticut law 
requiring that public school teachers be citizens. It is frankly unimaginable that 
the Supreme Court, having held that state and local governments can 
disenfranchise noncitizens and bar them from elective and many appointive 
offices, would find that noncitizens nonetheless have an implied constitutional 
right to equal representation.



12

The district court did not address this issue at all. Neither did 
the Ninth Circuit majority opinion. Judge Kozinski would have 
remanded to see if it is possible to reconcile both the interests of 
electoral and representational equality—to construct a remedy 
where districts are equal in population and with less variance 
among citizens. (App. A-46 to A-48).

The Ninth Circuit’s opinion, therefore, appears to be based on 
a false assumption—that there is a conflict between the two 
interests when in fact there may not be. Thus, there is an 
alternative not considered by the panel majority which permits 
the Court to avoid the need to select which aspect of the one- 
person, one-vote doctrine is constitutionally preferred—the lower 
court should be instructed to comply with both. There is no 
reason why the lower court could not fashion a remedial plan in 
which each district contains at least roughly equal numbers of 
people and people eligible to vote. Only Judge Kozinski 
acknowledged this possibility. The majority nowhere discusses 
what its decision would be if it were not forced to choose between 
the two prongs of the one-person, one-vote standard.

II.

THE COURT OF APPEALS RULING THAT THE BOARD 
OF SUPERVISORS INTENTIONALLY DISCRIMINATED 
AGAINST HISPANICS CONFLICTS WITH DECISIONS 
OF THIS COURT AND RESTS ON IMPORTANT 
CONSTITUTIONAL AND STATUTORY QUESTIONS OF 
LAW WHICH HAVE NOT BEEN BUT SHOULD BE 

SETTLED BY THIS COURT

The district court acknowledged that the Board did not act 
with any racial animus or hostility when it adopted the 1981 
redistricting plan under challenge here. In fact, the Board tried 
to create a more Hispanic district in 1981 but could not do so 
because of a partisan political stalemate. Four votes were required 
to enact a plan and the Board was split 3-2 along Conservative- 
Liberal, Republican-Democratic lines. The Republicans wanted



13

to make District 3, which already was Democratic, more 
Hispanic. The Democrats tried to make the Republican districts 
more Hispanic and hence more Democratic because 
concentrating them in District 3 would not have changed the 
balance of power. When they could not agree on a plan, the Board 
simply reenacted the existing lines adopted in 1971, with minor 
changes.

The district court’s conversion of this political stalemate into 
intentional discrimination, despite exonerating findings, was a 
clear error of law which resulted from the use of an erroneous 
definiton of invidious intent. The importance of, and uncertainty 
surrounding, the question of what the elements are of a racially 
discriminatory purpose, the application of those elements to a 
situation involving non-action and race-neutral partisan political 
objectives, and the proper relationship between a discriminatory 
purpose finding and the remedy ordered, warrant certiorari in 
this case.

A, The Courts Below Applied an Erroneous Definition of 
Invidious Intent to a Redistricting Plan Containing No 
Change in Boundaries Admittedly Adopted Without Racial 
Animus in Circumstances Where the Hispanic Community 
Disavowed Interest in a Concentrated Hispanic District

The district court determined that the Board intended to 
discriminate against Hispanics in the 1981 redistricting, not 
because of any desire on the part of the Board to harm Hispanics, 
but because the result of the Board’s protection of incumbents 
and political philosophies was the Board’s failure to take 
affirmative action to create a majority Hispanic district in total 
population: “It was not because of a desire on anyone’s part to 
dilute or diffuse or to keep the Hispanic community powerless; it 
was because they could not find the way to do what everyone 
wanted to do. And that sometimes happens in politics.” (App. 
A-55; see also App. A-83 to A-84, Findings 175-181).

The district court’s finding that the Board discriminated 
against Hispanic interests, even though it had no desire to harm



14

those interests, evidences a misunderstanding of the 
constitutional definition of invidious intent set forth by the Court 
in Personnel Administrator o f Mass. v. Feeney, 442 U.S. 256 
(1979), and City o f Mobile v. Bolden, 446 U.S. 55 (1980). In those 
decisions, the Court rejected a definition of invidious intent “that 
a person intends the natural and foreseeable consequences of his 
voluntary actions,” Feeney at 278, and held that:

‘Discriminatory purpose,’ however, implies more than intent 
as volition or intent as awareness of consequences. . . .  It 
implies that the decisionmaker . . . selected or reaffirmed a 
particular course o f action at least in part Because o ff not 
merely ‘in spite o ff its adverse effects upon an identifiable 
group. . . .

442 U.S. at 278 (citations omitted) (emphasis added).

The district court’s finding that the Board acted for a 
“discriminatory purpose” is not a finding of the sort that Feeney 
and Mobile require, because it is not a finding that fragmentation 
of the Hispanic Core or dilution of Hispanic voting strength was 
a desired consequence or goal of the 1981 redistricting. The court 
found that the Board in 1981 approached redistricting with 
exactly the opposite racial “objective” in mind, that is “to protect 
their incumbencies while increasing Hispanic voting strength.” 
(App. A-54 to A-55).

The Hispanic community in 1981, moreover, opposed—indeed 
attacked—any proposal to focus the Hispanic population in a 
single district. (RT 1/3/90, at 67-73, App. A-271; RT 1/10/90, 
at 147-48, App. A-278; App. A-78, Finding 148). Instead, 
Hispanic leaders proposed a “non-negotiable plan” in which 
there would be one 50 percent Hispanic and one 42 percent 
Hispanic district in total population. (App. A-78, Finding 149; 
RT 1/4/90, at 193-94, App. A-281). The representatives of the 
Board responsible for proposing a plan, however, could not 
achieve consensus on any such plan. The plan proposed by the 
Hispanic community threatened to lower the Republican 
registration in the First Supervisorial District significantly (thus 
threatening the ouster of a “conservative” by a “liberal”). (RT



15

1/3/90, at 22-23, App. A-269; App. A-80 to A-81, Findings 157- 
58). The alternatives proposed by the representatives of the 
conservatives on the Board were unacceptable to other members 
of the Hispanic community (although they increased Hispanic 
registration in the Third District and had minor effects on the 
Hispanic percentage in the First District), and to the Board’s 
liberal minority (which perceived the proposals as reducing their 
ability to influence the other members of the Board). {Id.-, RT 
1/8/90, at 124-32 App. A-284; App. A-76, A-79, A-81, Findings 
138, 151, and 159). Because the County Charter required four 
votes out of five in order to amend the district lines, the political 
stalemate resulted in but minimal change: only what was needed 
to equalize population. (App. A-82, Finding 172).

This evidence led the district court to the fundamental, but 
unremarkable, finding that the preexisting “fragmentation”8 * of 
the Hispanic community under the status quo plan ultimately 
adopted in 1981 was not cured in 1981 because of a political 
stalemate. As the County argued, and the district court found, no 
change in the political boundaries could be agreed on because all 
of the ambitious redistricting plans threatened to change the 
political balance of power, not by electing an Hispanic or 
avoiding the election of an Hispanic, but by replacing an Anglo 
Republican with an Anglo Democrat or by diluting Republican 
or Democratic influence. (App. A-55).

The importance of the distinction adopted by the trial court 
between incumbency-protection that is tied to the quest to obtain 
or maintain partisan advantage and incumbency-protection 
which seeks to prevent the election of racial or ethnic minorities 
who have a partisan outlook in common with the Anglo

8 With regard to the pre-1981 findings, neither the district court nor the
appellate panel explained how they were relevant to the 1981 plan—the only 
districting at issue. What happened in these early years is obviously only the 
most tenuous evidence of the Board’s purpose in 1981, since, among other 
matters, it was a different board. The pre-1981 findings might be relevant if their 
effects were perpetuated in the 1981 districting. The problem is that the district 
court made no finding that any of these early acts of discrimination exerted 
causal effects that significantly influenced events in 1981.



16

incumbents hardly can be overstated—the former is not 
illegitimate.10

Notwithstanding its clear determination that the district lines 
of 1971 could not be changed in 1981 because of a race-neutral 
political stalemate, the district court also adopted a legal 
conclusion that the inability to act, which was the consequence 
of such political considerations, could not justify the failure to 
cure the fragmentation of the Hispanic community which existed 
in 1981. (App. A-55). In its detailed Findings, the district court 
adopted a number of proposals of the plaintiffs which warp this 
finding of a political stalemate into some kind of intentional effort 
to disadvantage Hispanics. Some of the formulations are quite 
remarkable doublespeak: A political stalemate is not inaction, it 
is an intentional effort “to avoid the consequences of a 
redistricting plan designed to eliminate the fragmentation of the 
Hispanic population.” (App. A-83, Finding 174.) (There is no 
finding, of course, that the consequences to be avoided were 
Hispanic empowerment or greater Hispanic influence.) 
Recognition that the status quo was the only option became an 
“awareness” and thus an “intention” to continue the 
fragmentation of the Hispanic Core and the dilution of Hispanic 
voting strength. (App. A-84, Finding 181.) (There is, of course, 
no finding of a desire to continue Hispanic fragmentation or to 
adversely impact Hispanic political participation. Indeed, the 
evidence confirmed that the major participants in 1981 all sought 
to create an Hispanic district but could not find a consensus 
which accomplished that objective. (App. A-76, A-79, Findings 
133, 151, 152 and App. A-54 to A-55)

Feeney and Mobile require reversal here because the district 
court expressly found that racial animosity played no part in the 
adoption of the 1981 plan: “ ‘It was not because of a desire on 
anyone’s part to dilute or diffuse or to keep the Hispanic
10 See Wyche v. Madison Parish Police Jury, 769 F.2d 265, 268 (5th Cir. 1985); 
McMillan v. Escambia County, 638 F.2d 1239, 1245 (5th Cir.), cert dism’d sub 
nom., Pensacola v. Jenkins, 453 U.S. 946 (1981), vacated in part, 688 F.2d 960 
(5th Cir. 1982); see also White v. Weiser, 412 U.S. 783 (1973).



17

community powerless.’ ” (App. A-55). This was a struggle 
between political ideologies as the district court determined as a 
finding of fact. While litigants are allowed to prove invidious 
intent with a large variety of inferential evidence,11 the inference 
that the board desired to harm Hispanic interests because such 
harm inevitably resulted from the Board’s decision cannot 
succeed here because the district court determined that no such 
intent existed.12

In upholding the district court’s intentional discrimination 
ruling, the Court of Appeals relied heavily on finding 181:

“The Supervisors appear to have acted primarily on the 
political instinct of self-preservation. The Court finds, 
however, that the Supervisors also intended what they knew 
to be the likely result o f their actions and a prerequisite to self­

11 The Feeney Court observed that:
This is not to say that the inevitability or forseeability of consequences of a 
neutral rule has no bearing upon the existence of discriminatory intent. 
Certainly, when the adverse consequences of a law upon an identifiable 
group are as inevitable as the gender-based consequences [here], a strong 
inference that the adverse effects were desired can reasonably be drawn. But 
in this inquiry—made as it is under the Constitution—an inference is a 
working tool, not a synonym for proof. When, as here, the impact is 
essentially an unavoidable consequence of a legislative policy, that has in 
itself always been deemed to be legitimate, and when, as here, the statutory 
history and all of the available evidence affirmatively demonstrate the 
opposite, the inference simply fails to ripen into proof.

442 U.S. at 279 n. 2 (alternations added).
12 The district court was of the understanding that the preservation of 
incumbencies was a “form of discrimination” if it impeded an enhancement of 
minority voting strength. (App. A-148). In support of this position, the district 
court cited Rybicki v. State Board o f Elections, 574 F.Supp. 1082, 1109 (N.D. 
111. 1982). This citation is the ultimate illustration of the district court’s 
misperception of the meaning of invidious intent. In Rybicki, the district court 
considered the preservation of incumbencies as one piece of circumstantial 
evidence supporting the Crosby plaintiffs’ claim of intentional discrimination. 
574 F.Supp. at 1110. The Rybicki court, however, relied on additional evidence 
that showed, through the weight of collective inferences, that the purpose of the 
redistricting was to harm the ability of blacks to elect a candidate. 574 F.Supp. 
at 1092. The district court here, in other words, confused the definition of intent 
with the means of proof.

(Footnote continued on following page)



18

preservation—the continued fragmentation of the Hispanic 
Core and the dilution of Hispanic voting strength.”

If the words in this finding mean what they seem to mean— 
that the Board intended Hispanic vote dilution because it “knew” 
that would be the “likely result” of its action—this finding is 
clearly inadequate as a matter of law to support an intentional 
discrimination conclusion. It equates intent as volition with intent 
as a goal or desired consequence, in clear contravention of Feeney 
and Mobile.

The court’s interpretation of finding 181 not only reads it to 
mean something other that what it says, but also reads it in a way 
that is simply inconsistent with other parts of the district court’s 
opinion which exonerated the Board of any charge of purposeful 
discrimination. Thus, the district court concluded that the Board 
adopted the 1981 plan “not because of a desire on anyone’s part 
to dilute or diffuse or to keep the Hispanic community 
powerless,” and further that “had the Board found it possible to 
protect their incumbencies while increasing Hispanic voting 
strength, they would have acted to satisfy both objectives.”13

Read fairly, these findings together with 181 simply exonerate 
the Board under Feeney and Mobile: They say that the Board had

(Footnote continued from previous page)
Unlike Rybicki, in which an Anglo Democrat sought to preserve his 

incumbency against the challenge of a black Democrat by a change in the status 
quo to a more Anglo district, the district court in this case found that the Board 
through stalemate did nothing, essentially leaving the lines from 1971 in place. 
The effect was not to protect an Anglo against a minority of the same party but 
rather against an Anglo of a different political philosophy. The distinction 
between this case and Rybicki is that the district court expressly found no intent 
to harm Hispanic interests, whereas in Rybicki the district court found an intent 
to dilute black voting strength.
13 The courts below erred in ruling that the Board’s action, though not taken 
out of racial prejudice, animosity or hostility, was nonetheless taken for a 
racially discriminatory purpose. A “discriminatory purpose” under the Equal 
Protection Clause is one that reflects racial prejudice, antipathy, hostility or 
racism. This is the concept embodied in the proposition often repeated that the 
clause prohibits only racially “invidious” actions, and its operational meaning 
is that plaintiffs must prove that the Board acted to dilute Hispanic voting 
strength because it thought them less worthy or deserving than others.

(Footnote continued on following page)



19

knowledge of the effects of the plan on Hispanic voting strength 
but did not act for the purpose of bringing about these effects14.

B. The Remedy Does Not Match the Discriminatory Purpose 
Findings

In this case the remedy ordered by the district court and 
affirmed by the Court of Appeals bears only a limited relationship 
to the acts of intentional discrimination on the basis of which the 
Board was held liable,15 in violation of this Court’s longstanding 
constitutional remedial jurisprudence that the scope of the 
remedy is determined by the nature of the liability.

(Footnote continued from previous page)
Perhaps the clearest explanation of the invidiousness requirement is in City 

o f Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985), where the court, in 
rejecting the argument that “mental handicappedness” was a suspect 
classification, explained the basis of the rule that racial classifications are 
suspect: “[S]uch considerations are deemed to reflect prejudice and antipathy— 
a view that those in the burdened class are not as worthy or deserving as others.” 
(emphasis added) 473 U.S. at 440.

14 Because there was no such evidence, the Court of Appeals erred in ruling 
that the Board’s racially discriminatory purpose, if any, was the cause of its 
adoption of the 1981 redistricting plan. The causative purpose rule of Arlington 
Heights, supra, and Hunter v. Underwood, 471 U.S. 222 (1985) is not applicable 
in this case. See also, Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274 (1977). 
That rule was developed to deal with cases in which the plaintiff succeeded in 
proving that one of the desired effects or goals or objectives of a governmental 
action was discriminatory but one or more other goals were not, In such a case 
the burden shifts to the governmental agency charged with discriminating to 
prove by a preponderance of the evidence that it would have taken the same 
action quite apart from the discriminatory purpose. 429 U.S. 270-271, n. 21.

The causative purpose rule is not applicable in this case because the plaintiffs 
have failed to prove that one of the Board’s desired effects, goals or objectives 
in the 1981 redistricting was to fragment Hispanics or dilute their vote. They 
have proven only that the Board acted for a legitimate goal, preserving 
incumbencies, with knowledge of the racial consequences. This proof is not 
sufficient to invoke the causative purpose rule for the obvious reason that the 
Board did not act for two purposes: it acted for one entirely legitimate purpose.

15 The Court’s two major cases addressing the remedial authority of federal 
courts are Swann v. Charlotte Mecklenburg Board o f Education, 402 U.S. 1 
(1971) and Milliken v. Bradley, 418 U.S. 717 (1974), both school desegregation 
cases. The Swann Court stressed that while judges are given discretion in

(Footnote continued on following page)



20

The Board was found to have intentionally discriminated 
against Hispanics in four redistrictings: 1959; 1965; 1971; and 
1981. Neither of the courts below explained how the first three 
redistrictings related to the Board’s liability for the 1981 
redistricting, which was the only one ever challenged. 
Presumably, the implicit theory of the courts below was that the 
discriminatory effects of those redistrictings were perpetuated 
because of the 1981 redistricting stalemate. Even assuming, 
however, that the 1981 redistricting did perpetuate 
discriminatory effects produced by these prior redistrictings, the 
remedy ordered by the court goes substantially beyond what 
would be required by the discriminatory intents of these pre-1981 
redistrictings or the cumulative discriminatory effects 
(assumedly) produced by all three of them combined.

In finding 112 (App. A-72) the district court found that,
the Board has redrawn the supervisorial boundaries over the 
period 1959-1971, at least in part, to avoid enhancing 
Hispanic voting strength in District 3, the district that 
historically had the highest proportion of Hispanics . . . .

Although the court found discriminatory intention in the 
redistricting of District 3, the court-ordered remedial plan makes 
District 1, not District 3, the Hispanic district. This can neither 
be explained nor justified by a theory that discriminatory effects 
of the 1959-1971 redistrictings were either perpetuated or for that 
matter aggravated by the 1981 redistricting. How can a District 
1 remedy be a responsive cure to the acts with respect to District 
3 that were the basis of liability? *

(Footnote continued from previous page)
imposing equitable remedies, their powers only may be exercised on the basis of 
a constitutional violation and “with any equity case, the nature of the violation 
determines the scope of the remedy.” Swann, 402 U.S. at 16. Milliken provides 
an example of a remedial order that violated the principles established in Swann. 
The Court noted that “controlling principle consistently expounded in our 
holdings is that the scope of the remedy is determined by the nature and extent 
of the constitutional violation.” Milliken, 418 U.S. at 744. It also noted that “the 
remedy is necessarily designed, as all remedies are, to restore the victims of 
discriminatory conduct to the position they would have occupied in the absence 
of such conduct.” 418 U.S. 717, 747.



21

The County is not quibbling with details of the remedy: Of 
course district courts need some degree of discretionary flexibility 
in fashioning remedies in these complex cases. But this is not the 
problem here. The court simply created the remedial Hispanic 
district in a different one than was the basis of its liability finding.

Moreover, if it is pre-1981 behavior that is to be remedied in 
part, then one would not make District 1 the Hispanic district but 
District 3, which was the District affected by that behavior, not 
District 1. Given that the 1981 redistricting was the result of non­
action rather than action, the remedial plan of the district court 
can be upheld only if it represents a plan that would have been 
adopted at some earlier time but for the purportedly improper 
decisions by which the Board is said to have discouraged 
Hispanic challengers from running in the Third District. That 
being so, the first aspect of the lower court’s plan—placing the 
Hispanic seat in the First District—patently exceeds the remedial 
power of the court. There is not the slightest evidence that the 
Board would have moved Hispanics from the Third to the First 
District but for its improper motive. The court’s plan, in fact, 
includes areas never proposed for addition to the most Hispanic 
district and excludes areas which used to be in the district but 
which were never proposed to be excluded. This exercise confirms 
the fact that the district court’s remedy is considerably more than 
a remedy for the incumbency-protection which the district court 
condemned. It is a remedy which makes District 1 the Hispanic 
district, not because that would remedy the effects of past 
discrimination (incumbency protection), but for the altogether 
affirmative purpose, unrelated to the liability findings, of ensuring 
Hispanic success by devaluing the votes of 90% of the County’s 
citizens in the other four districts.

The district court’s rejection of the County’s proposed remedial 
plan, therefore, was highly inappropriate because it in fact made 
District 3 the Hispanic district. Nor were four votes required to 
enact it as the Court of Appeals held.17 (App. A-24)
17 The four-vote County Charter requirement only applies to redistrictings after 
a decennial census and “within one year after a general election.” (App. A-360) 

(Footnote continued on following page)



22

III.
THE COURT OF APPEALS’ RULING THAT BECAUSE 
PLAINTIFFS PROVED THAT THE BOARD ACTED WITH 
A DISCRIMINATORY INTENT, THEY DID NOT HAVE 
TO PROVE THE THORNBURG PRECONDITIONS OR 
RACIAL NONRESPONSIVENESS CONFLICTS WITH 
DECISIONS OF THIS COURT AND RAISES IMPORTANT 
CONSTITUTIONAL AND STATUTORY QUESTIONS OF 
LAW WHICH HAVE NOT BEEN BUT SHOULD BE 

SETTLED BY THIS COURT.
The County contended below that plaintiffs’ intentional 

discrimination claim must fail because plaintiffs were obliged to 
prove both discriminatory purpose and discriminatory effects 
which are the same as the three effects established as a threshold 
precondition to a successful Section 2 claim in Thornburg. It is 
undisputed that a compact district with an Hispanic voting 
majority could not have been created in 1981. Thus, the 1981 
redistricting plan did not violate Section 2 of the Voting Rights 
Act under the criteria established in Thornburg at the time it was 
adopted.

The Court of Appeals, however, held that, in a case where 
discriminatory intent is proven, the Thornburg preconditions 
need not be established so long as the challenged districting 
produced some racially discriminatory effects. It further held that 
the 1981 redistricting challenged here did produce some 
discriminatory effects less than the Thornburg effects but 
nonetheless affirmed a Thornburg majority district remedy.

There are two problems with the Court of Appeals’ ruling. 
First, the court erred as a matter of law in not requiring proof of 
the Thornburg effects in a case alleging intentional 
discrimination. If uncorrected, the Court of Appeals’ decision

(Footnote con tinued from previous page)
The two-thirds supermajority requirement did not apply here because the 
County’s proposed remedial redistricting plan was not “made within one year 
after a general election.” Because the County Charter is silent, state law 
controls, which specifies three votes is sufficient. California Govt. Code, Section 
25005. (App. A-359) The County’s plan therefore is a valid legislative act.



23

will wreak havoc in future voting rights suits, because it severs 
the concept of “vote dilution" from Thornburg’s brightline test 
without substituting any criteria at all for measuring when 
dilution actually has occurred and whether it has been caused by 
the districting scheme under challenge. Second, it renders the 
district court’s Thornburg majority district remedy 
unsupportable. A far less drastic remedy commensurate with the 
discriminatory purpose findings should have been ordered.

A. The Courts Below Erred As a Matter of Law in Their 
Determination that Proof of Racially Discriminatory Effects 
of the Sort Required in a Section 2 Claim is Not Required in 
a Case Alleging Intentional Discrimination

The Supreme Court has made it abundantly clear that the 
equal protection clause requires both intent and effect. Davis v. 
Bandemer, 478 U.S. 109, (1986); McClesky v. Kemp, 481 U.S. 
279, 292 (1987). Proof of the sort of effects required by Thornburg 
to maintain a constitutional claim is not reasonably open to 
dispute.

Prior to the amendment of Section 2 in 1982, minority vote 
dilution cases under the Constitution were successful only where 
effective voting majorities could be created.18 Another keystone 
of these constitutionally based challenges was proof of racially 
polarized voting (which consists of two elements—minority 
political cohesion and white bloc voting that usually defeats the 
preferred candidate of minority voters). Thornburg, 478 U.S. at 
48-51. Indeed, Section 2’s so called Senate factors, which include 
polarized voting, derive from minority vote dilution cases under 
the Constitution. See Zimmer v. McKeithen, 485 F.2d 1297, 1305 
(5th Cir. 1973), ajfd  sub nom., East Carrol Parish School v. 
Marshall, 424 U.S. 636 (1976). The effective voting majority and

18 The Thornburg trial court found it “doubtful” that a racial vote dilution 
theory could be applied “under any circumstances to smaller aggregations of 
voters than those sufficient to make up effective single-member district voting 
majorities.” Gingles v. Edmisten, 589 F.Supp. 345, 380-81 (E.D.N.C. 1984),

(Footnote continued on following page)



24

polarized voting requirements, of course, are the same as the 
three Thornburg preconditions.

Still another requirement in the pre-1982 intentional 
discrimination cases was proof that the jurisdiction under 
challenge had been unresponsive to minority interests.19 Here, 
plaintiffs made no claim that the County had been unresponsive 
to Hispanics and offered no evidence to that effect.

(Footnote continued from previous page)
affd in part, rev’d in part sub nom., Thornburgh v. Gingles, 478 U.S. 30 (1986) 
As the Court explained:

There is, first oif, the fact that the principle cases authoritatively 
developing the vote dilution concept have involved the impact of 
districting upon effective voting majorities. See, e.g., Rogers v. Lodge, 458 
U.S. 613 .. . (1982); Mobile v. Bolden, 446 U.S. 55 . . . (1980); White v. 
Regester, 412 U.S. 755 . . . (1973). Confined to such measurable 
aggregations, the concept has a principled basis which permits rational and 
consistent, albeit sometimes difficult, application; not so confined, it lacks 
any such basis. That is to say, at the effective voting majority level it is 
possible to say with substantial assurance that to submerge or fracture such 
an aggregation in a racially polarized voting situation effectively deprives 
it of the presumptive capability to elect, solely by its group voting strength, 
representatives “of its choice.” . . .  The raw power of such an aggregation 
“to elect” provides a clear measure of its voting strength, hence a fair and 
workable standard by which to measure dilution of that strength. Short of 
that level, there is no such principled basis for gauging voting strength, 
hence dilution of that strength. Nothing but raw intuition could be drawn 
upon by courts to determine in the first place the size of those smaller 
aggregations having sufficient group voting strength to be capable of 
dilution in any legally meaningful sense and, beyond that, to give some 
substantive content other than raw-power-to-elect to the concept as 
applied to such aggregations.

We are doubtful that either the Supreme Court in developing the dilution 
concept in constitutional voting rights litigation, or the Congress in 
embodying it in amended Section 2 o f the Voting Rights Act intended an 
application open-ended as to voter group size. There must obviously be some 
size (as well as dispersion) limits on those aggregations o f voters to whom 
the concept can properly be applied. We do not readily perceive the limit 
short o f the effective voting majority level that can rationally be drawn and 
applied.

590 F.Supp. at 381 (emphasis added).
19 In the pre-1982 cases, the Supreme Court recognized that the surest 
indication that “vote dilution” is in fact an accurate characterization of a 
challenged practice is the existence of nonresponsiveness by the governmental 
body at issue to the minority group’s interests. Both White v. Register, 412 U.S. 

(Footnote continued on following page)



25

The amendment of Section 2 did not change the proof required 
to establish a constitutional claim, nor could it. Section 2 
eliminated the need to prove an invidious purpose to prevail on a 
Section 2 claim. It did not, however, eliminate or in any way 
address the already existing and continuing proof requirements 
of a constitutional claim, which already included the three 
Thornburg preconditions and nonresponsiveness.

No purpose would be served by having a different “effects” test 
to define minority vote dilution in claims under Section 2 than 
under the Constitution. Thornburg represents the culmination of 
an historical search for standards by which to assess claims of 
vote dilution. It established a set of “clear rules over muddy 
efforts to discern equity,” that prevent courts from building 
“castles in the air, based on quite speculative foundations.” 
McNeil v. Springfield Park Dist., 851 F.2d 937, 942-44 (7th Cir. 
1988) cert, denied, U.S. , 109 S.Ct. 1769 (1989). Thornburg's 
first precondition, for example, is a concrete recognition of the 
amorphous nature of claims that voting strength has been 
“impaired” or “diluted,” and of the constitutional, statutory and 
jurisprudential limitations which surround these claims. The 
brightline approach in Thornburg obviously was a response to the 
difficulties inherent in trying to assess when a voting system 
sufficiently disadvantages a minority group so that a court 
confidently can find that it has in fact been denied equal 
opportunity to participate in the political process. The difficult

(Footnote continued from previous page)
755, 767-69 (1973) and Whitcomb v. Chavis, 403 U.S. 124, 149-52 (1971), for 
example, featured prominent discussions of nonresponsiveness, and this was 
largely the basis on which the Mobile v. Bolden Court distinguished White, 446 
U.S. 68-70, the only successful pre-1982 challenge to voting district practices by 
minority group members to succeed in the Supreme Court.

Nonresponsiveness is an inference that arises from a governmental body’s 
treating minority groups less well than others in the distribution of government 
services, employment and the like that that body does not need to take into 
account the electoral behavior of that minority group. White, 412 U.S. at 767. 
Nonresponsiveness is uniquely probative evidence that the allocation of racial 
populations among districts is not operating to protect their interests and that 
nonelectoral avenues for the exercise of political influence are also not 
functioning fairly. In sum, such evidence establishes that a plausible vote 
dilution claim really is such.



26

effects assessment problems that underlie Thornburg are just as 
real and troublesome in constitutional cases as in Section 2 cases.

The courts below erred as a matter of law by failing to 
require proof of discriminatory effects of the sort required by 
Thornburg. Consequently, failure to prove a Section 2 violation 
in 1981 also requires reversal of the district court’s determination 
that the plaintiffs established their intent claims.

B, The Courts Below Imposed a Thornburg Remedy on the Basis 
of Non-Thornburg Liability, and Consequently the Remedy 
Bears Virtually No Relationship to and Vastly Exceeds that 
Which It Should Have Been Designed to Rectify

To warrant the granting of a Thornburg-based majority district 
remedy, plaintiffs should have to prove the Thornburg conditions. 
The district court’s remedial plan was premised on findings that 
the plaintiffs had proven the Thornburg effects in addition to 
discriminatory intent, but the Court of Appeals affirmed on the 
basis of the latter finding only, holding that proof of the 
Thornburg preconditions was unnecessary when discriminatory 
purpose was proven. The Court of Appeals nonetheless affirmed 
the Thornburg majority district remedy and in so doing it 
committed clear reversible error.

Under Swann and Milliken, supra, p. 19, fn. 15, the remedy 
should have been tailored to those effects actually caused by the 
pre-1981 and 1981 discriminatory redistrictings, which would 
have entailed a District 3 remedy with less than a majority 
Hispanic voting age citizen district. Instead, plaintiffs were 
provided a Thornburg remedy without having to prove 
Thornburg liability, a remedy far beyond the effects proven, and 
far beyond the scope of the liability determination. Without proof 
of the Thornburg preconditions, the remedy ordered here clearly 
places the plaintiffs in a better position than they would have 
occupied had the Board not engaged in the intentionally 
discriminatory acts on the basis of which it has been held liable.



27

THE DECENNIAL REDISTRICTING RULE BARS 
PLAINTIFFS’ SECTION 2 CLAIM

It is undisputed that Hispanics could not comprise a majority 
of the voting age citizens in any potential district in 1980. The 
district court, however, found that such a district could be formed 
in 1985 or at least by 1988 and therefore concluded that a Section 
2 violation occurred. The County contended that the decennial 
redistricting rule of Reynolds v. Sims would foreclose any Section 
2 claim if the County’s 1981 redistricting plan was valid when it 
was adopted, /.e. , was not the result of discriminatory purpose.21

The Court of Appeals miscomprehended the County’s 
argument. The Court of Appeals properly held the decennial 
redistricting rule was inapplicable in a case where a finding of 
intentional discrimination purpose is made and the County does 
not contend otherwise. The Court of Appeals, however, never 
addressed whether the rule would foreclose the Section 2 claim if 
the intentional discrimination determination is reversed. The 
district court determined that single member district systems, 
which already are subject to decennial revision under federal, 
state and local law, nevertheless may be subjected to more 
frequent reapportionment if postcensal demographic evidence 
indicates that a minority group which could not form a district 
majority at the time a decennial plan was adopted becomes 
sufficient in size and concentration to form a majority of the
21 The Court of Appeals’ decision is utterly unclear on whether the post-1980 
evidence could be used to form a majority Hispanic district to prove a Section 2 
violation. If the decision is to be read as upholding the district court’s finding of 
a majority district for purposes of proving a Section 2 violation sometime after 
1981, then the panel completely failed to address the second and third 
Thornburg preconditions which must be established to prove a Section 2 
violation. These preconditions are that minority voters vote in a politically 
cohesive fashion and that white bloc voting usually defeats the preferred 
candidate of minority voters, the two Thornburg preconditions known 
collectively as “polarized voting.” The County challenged in its appeal the 
standards utilized by the district court in assessing polarized voting, but the 
panel opinion overlooked that ground of appeal entirely. How can a Section 2 
violation be upheld without considering that claim? The County also challenged 
on appeal the legal standards applied in assessing the reliability of the post-19 80 
evidence.

IV.



28

eligible voters in a single member district prior to the next 
reapportionment.

The Board cannot be required to reapportion its districts more 
frequently than decennially if a plan which it adopts complies 
with federal law at the time of adoption, which the 1981 plan did. 
The decennial limit derives from the Supreme Court’s decision in 
Reynolds v. Sims, 377 U.S. 533 (1964). Reynolds held that the 
Equal Protection Clause of the Fourteenth Amendment protects 
the right of a citizen to equal representation and to have his vote 
weighted equally with those of all other citizens. 377 U.S. at 576.

Even though the Reynolds Court viewed the right to an 
equally weighted vote as fundamental and deserving of the 
utmost protection, the Court also recognized that countervailing 
concerns justify rational limits on the scope of that right. More 
specifically, the Reynolds Court held that political jurisdictions 
are entitled to:

[Ajdopt some reasonable plan for periodic revision of their 
apportionment schemes. Decennial reapportionment appears 
to be a rational approach to readjustment of legislative 
representation in order to take into account population shifts 
and growth. Reallocation of legislative seats every 10 years
coincides with the prescribed practice in 41 of the States___
Limitations on the frequency of reapportionment are justified 
by the need for stability and continuity in the organization of 
the legislative system, although undoubtedly reapportioning 
no more frequently than every 10 years leads to some 
imbalance in the population of districts toward the end of the 
decennial period. . . .  In substance, we do not regard the 
Equal Protection Clause as requiring daily, monthly, annual 
or biennial reapportionment, so long as a State has a 
reasonably conceived plan for periodic readjustment of 
legislative representation. While we do not intend to indicate 
that decennial reapportionment is a constitutional requisite, 
compliance with such an approach would clearly meet the 
minimal requirements for maintaining a reasonably current 
scheme o f legislative representation.

Id. at 583-84 (emphasis added).



29

This rule of decennial redistricting, first announced in 1964, 
was reaffirmed by the Supreme Court in Bacon v. Carlin, 575 
F.Supp. 763, 766 (D.C. Kan. 1983) (three judge court), ajfd, 466 
U.S. 966 (1984). Thus, in 1964 and again in 1984, the Court 
recognized that limitations “on the frequency of reapportionment 
are justified by the need for stability and continuity in the 
organization of the legislative system.” Reynolds, 377 U.S. at 583; 
Bacon, 575 F.Supp. at 765 (quoting Reynolds).

The appropriateness of the decennial limitation is underscored 
by the circumstances of this case. This case was not filed until the 
fall of 1988. Four election cycles already had been completed 
under the 1981 plan. By the time of the district court’s ruling, 
only completion of one runoff election in one district remained 
before the Board was required to draw a new redistricting plan 
for the 1990s based on new data from the 1990 census, which was 
being taken while this case was in trial. The district court’s 
decision was released one day prior to the June 5, 1990 primary 
election for Supervisorial Districts 1 and 3. The courts below 
should have dismissed this case on grounds of laches as well as 
the decennial redistricting rule. Indeed, the recent Fourth Circuit 
opinion in White v. Daniel, 909 F.2nd 99, 104 (1990), moreover, 
applies laches and the decennial redistricting rule to Section 2 
voting rights claims on facts very similar to these.

No principled basis exists to say decennial redistricting is 
sufficient for one-person, one-vote dilution purposes but a 
different rule should exist for minority vote dilution purposes. 
The right to vote is a “fundamental interest” for equal protection 
purposes, triggering “strict scrutiny” review of inequalities in 
voting power. See, e.g., Harper v. Virginia Board of Elections, 383 
U.S. 663, (1966). Race is a “suspect class,” also triggering “strict 
scrutiny” review. See, e.g., Loving v. Virginia, 388 U.S. 1, 11 
(1967). These are substantively indistinguishable, coequal rights. 
See, e.g., Clark v. Jeter, 486 U.S. 456 (1988). After all, minority 
vote dilution cases started in the redistricting arena and plaintiffs 
are unable to cite a single case where a redistricting plan, which 
was valid when adopted, later became invalid due to a change in 
the size and concentration of the minority population.



30

CONCLUSION

For the reasons set forth above, the petition for a writ of 
certiorari should be granted.

D e W itt  W. Clinton  
COUNTY COUNSEL OF 

LOS ANGELES 
M ary Waw ro  
SENIOR ASSISTANT 

COUNTY COUNSEL 
648 Hall of Administration 
500 W. Temple Street 
Los Angeles, CA 90012 
Telephone: (213) 974-1811

R ichard  K. Simon  
Lee  L. Blackman  
Erich  R. Luschei 
McDe r m o t t , w il l  & e m e r y

2029 Century Park East,
Suite 3800

Los Angeles, CA 90067-2917 
Telephone: (213) 277-4110

Respectfully submitted,

John  E. M cD erm ott  
660 S. Figueroa Street, Suite 2300 
Los Angeles, CA 90017 
Telephone: (213) 955-4600

Counsel o f Record for Petitioners

John  E. M cD erm ott
R ichard  C. F ield
Evan  M. E island  

Cadwalader Wickersham & Taft 
660 S. Figueroa Street, Suite 2300 
Los Angeles, CA 90017 
Telephone: (213) 955-4600

G len  D. N ager

JONES, DAY, REAVIS & POGUE 
1450 G Street, N.W. 
Washington, D.C. 20005-2088 
Telephone: (202) 879-3939

Counsel for Petitioners 
County  of Los Angeles, et al.