Major v. Treen Court Opinion
Unannotated Secondary Research
September 23, 1983

Cite this item
-
Case Files, Thornburg v. Gingles Working Files - Schnapper. Major v. Treen Court Opinion, 1983. db88daee-e292-ee11-be37-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/4f019fdf-1eee-4a23-8d32-48053297ea02/major-v-treen-court-opinion. Accessed July 10, 2025.
Copied!
.;b-, MAJOR v. TREEN tltc u 5?4I.8upp. 323 (1983) 325 Rights Act of 1965, 5 5, as amended, 42 U.S.C.A. 5 1973c. 2. Elections c=12: Private plaintiffs are free to mount fle novo attabk upon reapportionment plan not' withstanding preclearance by the Attorney General. Voting Rights Act of 1965, S 5, as amended, 42 U.S.C.A. 5 1973c. 3. United States @=10 Attorney General's preclearance deter- mination under Voting Rights Act section relating tp alteration of voting qualifica- tions and procedures had no probative val- ue in case arising from claim under the Act for denial or abridgement of right to vote on account of race or color through voting qualifications or prerequisites. Voting Rights Act of 1965, 55 2, 5, as amended, 42 u.s.c.A. s5 1973, 19?3c. 4. Evidence e366(l) In malapportionment action, reeords of regularly conducted sessions of joint com- mittee and subcommittees of lnuisiana leg- islature were admissible as evidenee of facts to which they related without founda- tional testimony. Fed.Rules Evid.Rule 803(8XA), 28 U.S.C.A. 5. Elections @12 Plaintiff in Voting Rights Act suit alleging denial or abridgement of right to vote on account of race or color need no longer demonstrate intentional discrimina- tion in imposition or maintenance of disput- ed electoral strueture. Voting Rights Act of 1965, S 2, as amended, 42 U.S'C.A. S 19?3; U.S.C.A. Const.Amends. 14, 15. 6. Constitutional Law e46(1) Cases should be resolved, where possi- ble, on statutory rather than constitutional grounds. ogo ,urt oto tpld hm hisl uint ?or, rint ,gen the e, if tiffs rtue ego ilon, Bted nois arty ,the $ion- riate Barbara MAJIOR, et al., Plaintiffs, v. 'David C. TREEN, etc., et al., Defendants. Civ. A. No. 82-1192. United States District Court, E.D. l,ouisiana. Sept. 23, 1983. Plaintiffs, individually and on behalf of all black persons residing in and registered to vote in l,ouisiana, brought action seek- ing declaratory and injunctive relief re- straining use of recent realignment of state's congressional districts. The Dis- trict Court, Politz, Circuit Judge, held that: (1) Voting Rights Act proscription against qualifications or prerequisites to vote, or standards, practices, or procedures having discriminatory impact of denying or abridg- ing right to vote on account of race or color, is within eongressional authority to regulate state voting practices pursuant to power granted under the Fifteenth Amend- ment to enforce "by appropriate legisla- tion" the constitutional proscription of deni- al or abridgement of citizens' right to vote, and (2) applying "results" test, redistrict- ing plan whieh fragmented continuous' eo- hesive area of highly concentrated black population was violative of federal, state and constitutional law, notwithstanding ap- proval on preclearance review by the Attor- ney General. So ordered. 1. Elections G=12 nsid- icen rtion ylng bn's with sub- lons lum, r:red kof rican ). Attorney General's preclearance deter- '' B1""1iqn5 c'12 mination with respect to state or political Voting Rights -\ct proscription against subdivision's adopting or seeking to admin- qualificati-ons or prerequisites to voting, or ister any change in its qualifications, pre- standards, practices or procedures which requisites, standards, practices, or proce- have discriminatory impact of denying or dures with respect to voting does not pre- abridging right to vote on account of race termit subsequent action to enjoin enforce- or eolor, as opposed to proscription limited ment. of such qualifieation, prerequisite, to intentional discrimination, was within si:irrdard, practice or procedure. Voting congressional authority to regulate state L--_ -'' 5?4 FEDERAL SUPPLEMENT326 voting practices pursuant to powqgranted under the Fifteenth Amendment to enforce "by appropriate legislation" the constitu- tional proscription of tlenial or abridgement of citizens' right to votc. Voting Rights Act of 1965, S 2, as amended, 42 U.S.C.A. 5 1973; U.S.C.A. Const.Amends. 10, 15, ss 1,2. E. Elections el2 Voting Rights Act complainant, alleg- ing denial or abridgement of right to vote on account of race or color, has option of either proving discriminatory purpose in adoption or maintenance of electoral struc- ture or practice, or demonstrating, based on totality of circumstances, that structure or practice result in dilution of minority voting power. Voting Righls Act of 1965, SS 2, 4, as amended, 42 U.S.C.A. SS 1973, 19?3b; U.S.C.A. Const.Amend. 15. 9. Elections c'I2 Voting Rights Act, plaintiff in vote-dilu- tion action alleging denial or abridgement of right to vote on account of race or color need not establish, to make out prima facie case of vote dilution, causal nexus between disparate socioeconomic status of blacks arising from past discrimination and de- pressed level of minority political participa- tion. Voting Rights Act of 1965, S 2, as amended, 42 U.S.C.A. 5 1973; U.S.C.A. Const.Amend. 15. 10. Elections o=12 That several black candidates had won office in district affected by alleged malap- portionment did not foreclose finding of minority vote dilution. Voting Rights Act of 1965, 5 2, as amended, 42 U.S.C.A. 5 1973; U.S.C.A. Const.Amend. 15. ll. Elections @12 Tenuous state policy supportive of par- ticular districting scheme is probative of question of fairness or unfairness of that scheme's impact on minority voters; depar- tures from normal procedural sequence, or specific chain of events leading up to par- ticular legislative decision, bear on weight to be accorded state policy underlying par- ticular voting svstem or praetice. Voting Righls Act of 196;, s 2. as amended, 4z U.S.C.A. S 1973; U.S.C.A. Const.Amend. 15. 12. Elections G=12 l.egislative body may considel race in drawing district lines, so long as it does not discriminate invidiously or contravene one person-one vote precept. Voting Rights Act of 1965, 5 2, as amended, 42 U.S.C.A. S l9?3; U.S.C.A. C,onst.Amend. 15. 13. Elections @12 Physical evidence of racial gerryman- dering may itself furnish strong, objective proof of vote dilution. Voting Rights Act of 1965, 5 2, as amended, 42 U.S.C.A. 5 1973; U.S.C.A. Const.Amend. 15. 14. United g1u1s5 @10 Applying "results" test of Voting Righls Act section proscribing denial of abridgement of right to vote on account of race or color, redistricting plan which frag- mented contiguous, cohesive area of highly eoncentrated black population was violative of federal statutory and constitutional law, in light of l,ouisiana's history of discrimina- tion and vestiges thereof remaining, par- ish's racially polarized voting, as exacerbat- ed by state's majority vote requirement, and tenuousness of state policy underlying redistricting plan, notwithstanding pre- clearance approval of plan by the Attorney General. Voting RighLs Act of 1965, 5S 2, 4, 5, as amended, 42 U.S.C.A. SS 1973, 19?3b, 1973c; 42 U.S.C.A. Q 1983; I,SA- R.S. 24:35.2; U.S.C.A. Const.Amend. 15. R. James Kellogg, William I. Quigley, l,ani Guinier, Stanley A. Halpin, Steven Scheckman, New Orleans, La., Jack Green- berg, New York City, for plaintiffs. Martin L. C. Feldman, Ngw Or.leans, La., David R. Paynter, Baton Rouge, 1,a., for defendant Treen. William Guste, Jr., Ronald C. Davis, Rob- ert Kutcher, New Orleans, La., Kenneth C. Dejean, Baton Rouge, La., for other de- fendants. llefore POLITZ, Cireuit Judge, and (',:. - SIfJtiY and COLLINS, Districi Judg.' pr u cl e UI t€ th s 8n SE inj BE sir E) Lc U. 5 cla thr lut inI Pa Th dir lat cal th: wh del t. L fr o C is si r( p n t( al IT -Jh,dr.,-.fi**--.- .*. MEMORANDUM OPINION P OLITZ, Circ'uit Judge : . Individually and on Ulnatf of all black persons residing and registered to vote in louisiana, plaintiffs Barbara Major, Mi- chael Darnell, Bernadine St. Cyr, Brenda Quant and Annie A. Smart brought suit under the Thirteenth, Fourteenth and Fif- teenth Amendments to the Constitution, the Civil Rights Act of 1871, 42 U.S.C. I 1983, 5 2 of the Voting Rights Act, as amended, 42 U.S.C. 5 1973, and 28 U.S.C. SS 2201 and 2202, seeking declaratory and injunctive relief restraining use of the recent realignment of the state's congres- sional districts, Act 20 of the 1981 First Extraordinary Session of the l,ouisiana Legislature. Jurisdiction is based on 28 U.S.C. SS 1331 and 1343, and 42 U.S.C. 5 1973j. The gravamen of plaintiffs' claims is that Act 20 was designed and has the effect of cancelling, minimizing or di- luting minority voting strength by dispers- ing a black population majority in Orleans Parish into two eongressional districts. The question posited is whether legislation dividing a highly concentraled black popu- lation existing in one geographic and politi- cal unit, a parish, into two districts, rather than placing them in a single district in which blaeks would constitute a maioritv, deprives louisiana's black voters of the l. Scction 5 of thc Voting Rights Acl of 1965, .12 U.S.C. 1973c, rcquircs a stalc or political subdi. vision covcrcd by thc Act to obtait.r preclcarancc fronr thc Allornev Ccneral of thc Unitcd Statcs or through the District Courl for tlrc Distlict of Columbia whenever it adopts or secks to adrnitr- ister anv changc in its qualifications, prcrcqui- sitcs, standards, practiccs or proccdurcs u,itlr rcspecl lo voting. To receivc preclcaratrcc, thc proposcd changc must havc ncithcr the purposc nor the cffcct of denl,ing or abridging the right to vole on accounl of racc. The Attorney Gencr- al's prcclearance determination does not pretcr- mit a subsequent acti()n: Neither an affirmativc indication by the Attor- ne1' General that no objection will be made, nor the Attorney General's failure to object, ... shall bar a subsequenl action to cnjoin enforcement of such qualification, prerequi- site, standard, practice, or procedure. 42 U.S.C. 5 1973c. Privale plaintiffs are free to mounl a de novo attack upon a reapportionment plan notr,r,ith- MAJOR v. TREEN Cllc u 57f F.Supp. 323 (t9t3) 327 right to effeetive partieipation in the elee- toral proeess. Facts and Procedufal History tl-31 In November 198i, Aet 20 of the Louisiana [,egislature's First Extraordina- ry Session of 1981 apportioned the state into eight single-member congressional dis- tricts. Aet 1 of that session established new state representative distriets. Both enactments were submitted to the Attorney General of the United States for preclear- ance under ! 5 of the Voting Rights Aet, 42 U.S.C. S 1973c.! Prior to action by the Attorney General, plaintiffs filed the in- stant 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 De- partment interposed a S 5 objection to Act 1, rendering that legislation unenforceable. 42 U.S.C. 5 1973c. Judge Collins denied as moot plaintiffs' motion to consolidate their complaint with one filed bv a prospective congressional candidate which was later dismissed for want of a justiciable case or controversv. Roberl E. Couhiq, Jr. t,. Jomes L. Brou'n, Secretary o.f State,538 F.Supp. 1086 (E.D. La.). Defendants' motion seeking a sepa- rate trial of the claims of malapportion- ment of congressional and state represent- ative districts was granted. Acting on standing prcclearancc. United States v. Elast Baton Rouge Parish Schutl Bd., 591 F.2d 56, 59 n. 9 (5th Clr.1977t. See Morris y. Gressettc, 172 U.S. 4el, 506-07, 97 S.Cl. 241t,2421,5-1 L.Ed.2d -506 (1977) ("Whcrc thc discriminalory charac- lcr ol an cnactmcnl is not dctcctcd upon rcvicrv of the Attorrrcl'General, it can bc challengcd in traditional conslitutional Ior statutory] litiga- tion. But it cannol be questioned in a suit seeking.judicial revieu of the Attorncv General's Idecision]."). Since the statutor], standards of review under 5 5 differ from those established b1'amended S 2, Report on S.1992 of the Scnatc Commiltce on the Judiciary, S.Rep. No. 97-417, 97th Cong., 2d Sess. (1982) at 68, ,38-39, Il.S. Code Cong. & Adrqjn.News, p. 177, a grant or denial of preclearance pursuant to $ 5 is not dispositive of a ! 2 claim. Hence we concludc that the Assistant Altornel General's preclcar- ance determination has no probativc r,;rlue in the instanl case. 328 .574 FEDERAL SUPPLEMENT olaintiffs' uncontested motion for partial ;;;,-y judgment, Judge Collins declared tf," fgZO congl.etsional districting plan' Act 69? of the 19?6 l.ouisiana Legislature, un- constiEutional because of large population u"ri"n.u" among districts when viewed in light of data developed in the 1980 census' This three-judge court was designated by Ct i"i .lragu Charles Clark of the Fifth Cit.oit Coirt of Appeals on June 10' 1982' On lor" 18, 1982, Act 20 was precleared by the Attorney General' After Act 1' as subsequently modified by the ['ouisiana l,egislature, was approved by the Attorney G"-r"rrt, plaintiffs amended their complaint to withdraw their challenge to the reappor- tionment of the l,ouisiana House of Repre- ."nOrir".. In addition, plaintiffs amended their complaint to assert a cause of action under the 1982 amendments to 5 2 of the Volirg Rights Act of 1965, 42 U'S'C' s 1973. By order dated March ?, 1983' this court ,"uifir-"a Judge Collins' invalidation of Act 69?. We granted plaintiffs' motion for class certification pursuant to Fed'R'Civ'P' 23(bX2), designating a class of persons con- ritiing' oi all black registered voters..resid- ins in the State of [ouisiana' Finally' we a"i.r*in"a that 28 U'S'C' S 22841a\ vested l, ttl. court jurisdiction to entertain plain- tiffs' statutory and constitutional claims' i"i"t *". heid from March ? thiough March 10, 1983' Decision was deferred oending briefing and oral argument' Hav- i.,s .o;.id"ted ite evidence adduced at tri- at]togettter with the pleadings, briefs' and oral argument of counsel, the court enters the foltwing findings of fact and conclu- sions of law in conformity with Fed'R' Civ.P. 52(a). Findings of Fact Every ten years a reapportionment2.of existing congiessional districts is compelled by Artlcle t, S Z of the United States Con- .litution and by Article 3, S 1 of the Louisi- ana Constitution of 19?4' In 19?2' louisi- ana's eight congressional districts were re- aligned based on data developed in the 1970 ."i*r.. At that time the ideal district pop- ulation was 455,580 persons' While the state remains entitled to eight representa- tire. follo*ing the 1980 census' the ideal district population has increased r'a 525'491 persons.:t The issue before us principally involves the New Orleans metropolitan area' which encompasses the parishes of Orleans' Jef- ferson, St. Tammany, Plaquemines and St' Bernard. The 1980 census figures reveal Lruisiam Congressional Districts 1980 Census 1972 Plan Dlstrict Popul8tion Black % Dcviation | 123271 36s 'o'12% i re r,soz rr,'1 -r2'r2% i rzt,tst t{'6 + 8'6t% I t*,uta 3l'9 - 3'22% i ooz,ssg 3z t - la% i szz,tro 296 + 9'83% 7 543135 20 1 + 3'3t% r 511261 332 - 27r% Given the near'absolute mathematical preci- ,i.n- Jirt *r,i.h congression3l districts musl.be a.f-.a, Karcher v' Dagget, - U'S' - .. ' 103 iii.-zisi, 77 L.r,d.zd tr: (tsa:)' the districts ;;'ii;; in the le72 plan fail to satisfv the "lrrt ,.pr.r.ntarion standard of Article l' S 2' Sl" pr"ttirt Stipulation at 4 ("Under rhe 1980 ;;;.;;, the tsiz apPortionment plan for con- gr..l""if d istricts was sign if icantly rnalappo,r' iion.d, as to all districts excepl the I'trst " ' )' 2. A technical distinction has bccn drau'n bc- -'t*."n th" terms "apportionment" and "rcappor- ii;;;;";; ih"'on" hand' and "districting" and "redistricting" on thc other: . . . aDporlionment and reapporliontnenl. t.n' t"ir"',[" allocarion [bv Congrcss] of a finitc number of representativcs among a I lxeo ;;;;; oi pre'establishcd areas Districting aii redisaiing ' refer to the processes. b'v *ni.n,tt" lineJseparating legislative districts are drawn [bY thc srares]' Backstrom, Robins and Ellcr' Issucs in-G-err\'- ;'nJ;r-ing, -An Explorarorl'.Mea-sure of ?ar* san Gerryhandering Applied 19^11\nnt:"lu::-' Minn.L'i.r' ll2l, ll2l n' I (1978) :Ee L?!: ';;;;';." ;;i, 'sat F.Supp 68 (D'cor re82) i,i,*"-lrdn. cou:'t); R Morrill' Political Redts' i;t;;;l;,i Geogiaphic rheorl at 2 (re8l)' ro i::'i tii;';;*-;';onl h"*u"u"''' t hesc terms rvi I I be utilized interchangeabll" 3. The following table sets forth thc 1980 popula' "',i;;,-;;;.;;taie of black p9?"l"ll.'l'l "l'd.-l::: ..ti if deviaiion in thc eight 1q:-l (: :ncls: pron0 area. Du Paris Orlea a slig all pc incrc popu tutes the t the r of al the e t€r, and is la expa B3 subt Tam havt gro\ Jeff latio tion is nr sion fers thrc den eno: itv onll AS lear gre by t Firr res pas Tar 4. 9 * .*..- ,-- MAJOR v. TREEN CUc dr 57r iSupp. 12! (rlt3) 329 pnonounced dem.ographic changes in this front, eastern Mid'City, Algiers and New area. ,' Orleans east sections of Qrleans Parish' During the decade of the r9?os, orleans An overlay of the 1980 census data to that parish (coterminous with the City of New district, as configured unddr the 19?2 plan, Oit""nr) expeienced a marked change and reflects a 36.5% black population and 28.4% a slight decilne in population.r lVhile over- black voter registration. The Second Con- altpipulation declined, the black population gressional District, presently represented incieased. The city/parish now has a black by Lindy Boggs, covers those portions of population of 308,039 persons, which consti- Jefferson Parish to the south (West Bank) iutes 55% of the total population, 48.93')( of and immediately north (East Bank) of the the voting age population, and 44.89% of Mississippi River, as well as New Orleans' the registered voters. With the exception central business district, French Quarter, of affluent white neighborhoods located in Uptown or Garden District and western the city's Garden District and French Quar- Mid-City, all situated within the boundaries ter, along the lakefront, and near Tulane of Orleans Parish. Application of the 1980 and loyola Universities, the b]ack populace census data to the 19?2 boundaries of the is largely concentrated in one contiguous Second District shows that 49'7% of the expanse of the inner city. population and}47' of the registered voters By contrast, the predominantly white, are black. See Exhibit "A" attached. suburban parishes of Jefferson and St. Tammany, which flank the central city, l,egislative History of Act 20 have undergone explosive population growth.s Aecording to the 1980 census, Early in 1981' members of the Louisiana Jefferson parish, with a 13.97 black popu- House and Senate research staffs were in- lation, a 13.75% black voting age popula- structed to collate the 1980 population data tion, and a 10.45% black voter registration, compiled by the united States Bureau of is nearly 871/,,the size of the ideal congres- the census' and to ascertain the extent of sional district. unlike orleans Parish, Jef- malapportionment' if any' under the 1972 ferson Parish's black population is diffused plan with the assistance of the Ircuisiana throughout the parish. Prior to the recent State University's Division of Research demographic shifts, New Orleans had Services, House and Senate research -qtaffs unorglh people to form the dominant major- converted the data thus obtained from a ityintwocongressionaldistricts.Nowcensustracttoapoliticalsubdivision,or onty t.Oe times the size of the ideal district, precinct' basis' These validated data' re- as defined by the 1980 census, New Or- ferred to as the Weber data, included popu- leans' traditional dominance of two con- lation and voter registration figures, and gressional districts is no longer supported provided the exclusive data base for con- f,y its population. gressional redistricting in both houses. Under the 19?2 redistricting plan, the Recognizing the need for realignment of First Congressional District, presently rep- the state's congressional districts, the legis- resented 1y Robert Livingston, encom- lature established the lrcuisiana House and passed St. Bernard, Plaquemines and St. Senate Joint Congressional Reapportion- tu*rn"ny Parishes, together with the lake- ment Committee. In July, at the close of 4. S. Cansus Orleils Prish Population 55?,482 593,,171 @7,52s 570,,145 494,537 458.762 No. of ldcal Dstricts r.06 1.30 1.54 1.70 t.67 L75 Jefferrcn Prish a Population {54,592 338,229 208.769 103,873 50.427 ,10.032 No. of ldeal Dstricts 0.87 o.74 0.51 0.3 r 0.17 0. t5 Ccnsus 1980 t970 t960 t950 t940 r930 l9t0 1970 1960 1950 1940 1930 L.-__ 330 5?4 FEDERAI, SUPPLEMENT the regular 1981- session, each house ap- *irt"i legislators la ad hoc congressional I""rr-*1"-rt"ent subcommittees function- i;;";;;;; the jurisdiction of two standing ;;;;i *;., the senate committee on sen- "t" "ra Governmental Affairs and the ior." Committee on House and Govern- ."ri"f effuir.' Senator Thomas H' Hud- .or-"ttrit"a the Senate Congressional Re?p- ,"tti"r*"r, Subcommittee; Representative 5"im W. Scott chaired its House counter- p"tt. fn"t" were four black legislators on if," ioin, committee' No black legislator *a. appointed to either subcommittee' 141 State-wide public hearings soliciting citizen input were conducted by the sub- ""*rit,*". from July through 9tt"b"1 1981. One of the principal issues debateo in it" u""ioos fora concerned the possibility oi futi,ioning a district centered in Orleans p"ii.fr, which, as the 1980 census data re- iil;, t"a a black population. of .557' ii"pi"*.orive Richard Turnley' in his c.a- ;;;l)' ". Chairman of the Louisiana ['egis- ixir" Stu.L Caucus, testified before the ioint reapportionment committee in support ';';; ;;;p"sition that the state's minoritv 6. Conrcnding that oral or u'rillclr slalcmcnts -";";;';;';;'" 'ont",.r "r public hearings bcforc il" i.itt committce and subcommittccs arc i.l""rIr;' dcfcndants contesl thc admission-.of ,r"nraiio,., or minutcs' o[ thesc meclings Wc i*.i""1 iiJ'"g rhat thc transcripts fall rrithin ,i" irurl. recor-d cxccption oi thc hcarsav rulc' ;::."R.;;;.;riisl. una"' Rulc 803(8xA)' thc i"il"i"i"g arc not excludable :: h"ut*).i.:::: it"rgt ,i" dcclarant is available as a u'ttness: Records, reports, statemcnts' or data compila- ii""., i" anl form' of public offices or agc'n' .i"1,'*iti.d forrh (A) thc activities of thc officc or agency' iirl.lir.' ixhitits I through.g' inclusivc' .are records of regularly-conducted sesslons oI a i"i"t' ..*rnlr,.i and subcommitl"t5 6f thq -l'oui- '.H;Gi.il;re and' as sych.' a1e "dii'.'lil:.7 "riJ"n."-.f the facts to which thcl rclate u'ttn' "rii"r"ir,i""al testimonl' J' Weinstcin and *' il;";t, 4 Weittstein's 'E''idencc fl 803(8)[01] iinall.'ir,"." is no challengc to thc authentici- it "i 'it"* rccords' wc hi''c not considcred ;i";;;;p;;ienting double hearsal' problems' iliir, ittit eiception, written and oral stalements ;;;;;i;"; in the minutes of the vario,s. public il;trgt;; admissible as evidence of the mat- ters asserted' 7. ln presenting their proposcd redistricting "gria.f*.t io iht Ho"t subcommittee at the constituency would be 'best sCrved by the ",t..ttA"f "f an Orleans Parish-based dis- I"i., *r,r"t'maintained the cohesiveness of ifr. ,.ttopolitan black community' Min' ri". ,t sevetal public hearings held in Au- ""=t fg8f reveal that other legislators' i"ii *f,i* and black, shared this view'6 Other considerations identified as impor- tant to the reapportionment process were irnp".tn"t., contiguity, respect for parish lines, and a recognition of ethnic' cultural and geograPhic differences' Based on the recommendations of legisla- tive counsel, the House subcommittee pro- r""f**a several rules for the designing of ."ri*.ti"r^l districts'7 Embodied in iiuJ" trl"t were the principles of strict ."."nfi""." with the "one-person' o-ne-:ol€" ;xio.m, allowing for a maximum deviation ;i;;ly .t'it , aid the unacceptabilitv of anv ,t*".rf shown to have either the goal or It e' "ft"ct of diluting minority voting strength. Identical criteria *'ere endorsed iv 1hi Senate subcommittee' During the iir.i join, meeting on August 2l' 1981' these-guidelines were formally adopted'E Julr' 23, 196l public mecting in Baton Rouge' ::i;;;1 oa,],,"i ]""-uc's thit racial considera- ii".t".r.t play a kc.v- rolc in reapportionment' ,ii",rlri rnirr;irt' r'otin-g srrcngth could not be dissinatcd through thc lragmentalion of signifi- :;;?;;i;- flf't"tion ionccnrrations Min' ii.' "i'jrii ili r'qsr puuti' Hearing Rerorc the l'"rr.' una Govcrnmcnlal Affairs Subcomm'it- ;;", ;p -;;-lti oa'ia Povnter' clerk of the ftorr. of Rcprescntativcs' warned that:"i;i." concern of thc courls is the existcncc of )r"rt.a"-i"""t11 black neighborhood or area wirh a sufficicnl am()unt of population to.jus- tif! a district wherc it bccomes apparant lslcl ,ir;ti;;";ii;.t was ro carve up that.group of *oolc in such a wal as to Pul them in lwo or It,rJ" t"pu.u," districts and make it imposst- [i" . "l[., a black representative' That prob- ably without any qucstion is impermissible' Id. at l9O. ' 8. Rule I of the Joint kgislative Committee on "'n""-pp""."ment Propoied Rules for Congrls- si"n'ri n""pportionment' as approved .by' the i."i"i'c"-tiri,tee on August 2l' l98l' stipulates thal: l. Equaliry of population of congressional airiri.-rr-inroiur as iJ practicablc is thc goal of concressional reaPPorlion mcnt' '"i.i. ;;;t;onl'r'nn' thc "idcal drstricr'' p"prir,i". should bc justifrablc citircr as a hc lb- of b- fl- 13, v.a flr lle sh AI a- 0 cf in ct ,,, In ry !r c d r€ [, t t. L C i- l- e I e f I I f r iJr MAJOR v. TREEN t , Glle u !7t Ftupp. 325 (t963) 33r Several groups submitted prcposals to ' graphic boundaries, preservation of com- the joint egmmittee or the two subcommit- munities of interest, and non-retrogression. tees, among them $overnor Dave Treen Partisan political eohcerns also figured and the Inuisiana congressional delega- prominently in the cbnfection of the vari- tion.e None of the Governor's three pro ous plans, among them the desires of Jef_ / posed pfans, denominated Treen A, B, and ferson parish political leaders, including C, contemplated a majority black district.ro Tax Assessor L,awrence C. Chehardy, foi During this period the Governor publicly the creation of a district composed primari- , expressed his opposition to the concept of a Iy of that parish. majority black district, stating that district- ing schemes motivated by racial considera- To achieve these goals, the Senate staff tions, however benign, smacked of racism, developed a plan which, as the result of the and in any case were not constitutionally sponsorship of Senator Samuel B. Nunez, required. Jr. of St. Bernard Parish, would subse- Guided by the joint committee's reappor- quently be referred to as the "Nunez tionment criteria and the views articulahd PIan." See Exhibit ,,B,, attached. As at the public hearings held throughout the drafted, this plan envisaged one black and summer and fall of 1981, the Senate re- seven white population majority districts. search staff prepared more than 50 plans. Nunez's proposed First Congressional Dis- The staff was directed to formulate a plan ttict,72% of which was made up of Jeffer- containing an Orleans Parish-dominated son Parish, combined that area of the par- district. Such a district would necessarily ish lving west of the Mississippi River with have a black majority population. Michael Orleans Parish's Ward 15, and the parishes Baer, Secretary of the Senate and the offi- of Plaquemines and St. Bernard. The pro- cial charged with supervising legislative posed Second Congressional District con- drafting procedures, ensured compliance sisted almost entirely of Orleans Parish with such well-established reapportionment (94.9'l), together with 25 contiguous pre- guidelines as one-person, one-vote, com- cincls drawn from east Jefferson Parish. pactness, respect for the integrity of geo- St. Tammany was restored to the Sixth result of the limitations of census gcography, or as a result of lhe promotion of a conslilu- tionally acceptable rational state policy. l.B. In order to meet constitutional guidc- lines for congressional districts, any plan, or proposed amendment thereto should conform to a relative deviation range of one (l%) pcr, centum, or a relative dcviation of t ,/- t/t of one (.Sozir) percentum. According to Rule IV, also approved b1. the Joinl Committee: l. The dilution of minoriry voring strength is conlrary to public policy. The right of meaningful political participation of minority citizens is recognized. Accordingll', anv pro- posed apportionment plan, or amendment thereto, demostrated [sic] to have the objec- tive or consequence of diluting the voting strengh of minorit.v- citizens is unacceptablc. 9. On behalf of all eight of Louisiana's congres- sional representatives, Congressman William Tauzin presented a proposed reapportionment plan to the joint committec at its August 2l organizational meeting. Several districts u,ithin this plan exceeded the population deviarion ceil- ing prescribed bt, the committee's reapportion- ment rules. Albeit invited ro submit a plan which rectified this deficicncr, thc delegarion as a whole did not do so- 10. Black and white popularion percentages in thc cight congrcssional districts creatcd b1, Trccn plans A through C arc: % WHITE District Pmposal A Proposal B Proposal C I 2 3 4 5 6 7 8 65.8 54.6 E3.6 67.t 67.5 70.1 77.7 67.6 65.8 65.8 54.6 54.6 84.0 83.6 66.7 67.r 67.5 67.5 70.1 70.1 16.7 7r.0 6E.5 74.3 % BLACK District Proposrl A hoposal B Proposal C I 32.0 32.O 32.O 2 13.5 ,t3.5 {3.s 3 t,1.3 l3.t 14.3 ,r 31.6 32.0 3 t.6 s !r.g 31.9 31.9 6 28.8 28.E 28.8 7 2t.5 22.7 28.3 8 31.8 30.6 21.9 :t 332 574 FEDERIL.SUPPLEMENT Crcngressional District,.from which it had by Nunez and Chehardy, in urging passage been"excised during the 1960s. B! allocat- of the Nunez Plan. That Nunez and che ing separate districts to majority black, ur- hardy were princ.ipally concerned with es- bi, Ort""n. parish and virtualiy all-white tablishing a district controlled by predomi' residential Jefferson Parish, Nunez took nantly white Jefferson Parish was of little into account the divergent, frequently anti- import to black legislators, who advocated thetical, coneerns of city and suburban the plan's concomitant formation of a ma- dwellers, as well as pari.h lines and the jority black district^in Orleans Parish' On natural geographic barrier erected by the November 4, 1981, s.B. 5 was reported out Mississiipi i,iuur. Utilizing 1980 census of committee with minor substantive figures,'ilunez's Seeond District would be amendments and onto the Senate floor, siy,, av"*. in population and 43% black in where it was passed by a vote of 31 to 6. voter registration. The First District A move to amend s'B. 5 to substitute Gov- would have a black population of 17.9% and ernor Treen's Plan A was defeated, and a black voter registralion of 12%.tt S.B. 5 was sent to the House for further On the House side, the legislative staff action' devised a plan which largely adhered to H.B. 2 was simultaneously reported out parish lines and left intact the concentra- of House committee and placed on the iion of blacks residing in orleans Parish' House calendar on November 4' 1981' Named for its sponsor, Representative along with an amendment to substitute Scott, this plan en'isioned a 50'27 black Governor Treen's Plan B for the Scott popuiation majority and 44'l black regis- Plan. The House Committee on House and Lred voter population in the Second Con- Governmental Affairs received S'B' 5 on gressional n-istrict, anda22'5% black popu- November 5, 1981, but' declined to amend lation and l7'l black registered voter popu- H'B' 2 to adopt the Senate bill' Represent- lation in the First District. ative Charles Bruneau, a member of the Governor Treen summoned the legisla- committ'ee, testified that his vote in com- ture into extraordinary session on Novem- mittee against s.B' I-r resulted from the ber2,lg8lforthepurpo.",interalia,ofplan'sabandonment-ofurbanNewOrleans' legislative and congressional reapportion- 13o-year tradition of electing two congress- ment. Various bills to reapportion the men' eight congressional districts were filed ort ln proceedings before the full House on the first day of the ses-qion, among them Frida."-, November 6, the representatives the Nunez Plan, introduced in the Senat.e declined to amend H.B. 2 to substitute by Senators Nunez and Tiemann as S.B. 5, Treen Plan B. Despite the Committee on and the Scott Plan, introduced in the House House and Governmental Affairs' previous by Representative Scott as H.B. 2. Of all rejection of S.B. 5, the House then voted 61 bills referred to the standing Senate and to 38 t<i adopt the Nunez Plan by engraft- House committees on governmental af- ing it on H.B. 2 and dispatched the neu'ly- fairs, only S.B. 5 and H.B. 2 received favor- amended H.B. 2 to the Senate. Some of able committee action' the 38 negative votes stemmed from the Members of the lrcuisiana Black caucus perception that New orleans would "lose" united with the .lefferson Parish forces, led control of a seat under the Nunez Plan'r2 ll. The population deviations and percen-tages of Totsl % Black % Blacl --itu.i poprtution and voler rcgislration foieach Dist' Pop % De'iationt Pop ReS vctns of thc. eighr congressional disrricrs formcd bv { 52s,067 - 0.08 31.6 22.3 rhe Nunei Pran ale: I 311:3fl _ 3H li l 1li Total $ Black $ Black 7 523't47 - 0 31 20 0 16 8 Dist. Pop. %Deviation '-'or' Rei voters t 524'953 - 0'lI 369 3o3 I 526,666 0.22 t7.9 13 0 2 s25,t35 _ o.0z 54.0 43.5 12. Regardless of tht silrteritv u'ith u'hich it is 3 525.581 0.02 2l'3 I8't< hcici, tlrc it'gi:ial"r's' ((rll\ i( li()l.l is n<' lotrger val' M.trIOR v. TREEN .Gltc 6 371 F.6upp. 325 (t9t3) 333 Also cited was the antagonisrh of a number the Governor outlined the eonsiderations of legislatort toward tle drawing of a dis- which prompted his objection to the Nunez trict whose racial conlposition would facili- Plan. He described as unfair the submer- tate the election of a black congressman. gence of St. Bernard ahd Plaquemines par- Representative Mary l,andrieu testified: ishes under Jefferson PariJh, albeit ae- t There were people that supported that knowledging that the populations of these plan [Nunez Plan], like myself, because two coastal parishes would constitute only we wanted to be aggressive and pushing a minor portion of any district. The Gover- for a black district or a district where nor also wished to maintain existing dis- minority voting strength would be en- trict configurations where possible, proteet eouraged. And so there were people on the incumbent, Livingston, and retain Or- the opposite side who didn't feel they leans' traditional influence in the selection wanted to have a district that would be of two representatives. Both houses of the lrcuisiana l,egislature be an inevjtable consequence of tlre deliber- had thus approved reapportionment bills ate sculpting of districts along racial lines. ineorporating the Nunez Plan in its entire- He denounced any legislative scheme which ty, although the House Bill inadvertently intentionally drew boundary lines so as to left out one precinct. Upon learning of thl consolidate a majority of one race within a action of the legislature, Governor Treen single district' He specifically rejected the announced his intention to veto the Nunez Nunez plan, which would create a SS7, Plan if finally passed.r3 black district, for this reason. In the Proponents of the Nunez plan were state's 5 5 submission to the Justice De- keenrv aware of the imprications of the lil:.T;'|, t?%:1":L.l"ii,l''d:o -:IGovernor's promised veto. Louisiana's characterized as an attempt by the touisi- chief executive has considerable power and ana l,egislature to enact into ]aw the dis_ influence, both de jure and de facto. Testi- credited idea of proportional representa- mony reflecLs that the Louisiana l,egisla- tion. able to elect a black representative. Record, Vo1. III at 49. ture has never overridden a gubernatorial veto. A sufficient number of legislators ehanged 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 aeting are relevant. At trial, id. The population o[ Orleans parish, the re- gion's nodal cenler, has historicallv been large enough to conlrol two congressional districls. Given.the loss of approximarell, 36,000 people over the last decade, and the concomitint in- crease in the ideal districl popularion of approx- imately 70,OO0 people, Orleans parish,s popula- tion is now onlv l.O6 times larger than rhe ideal dis^trict required by rhc 1980 census dara. &e p. 329, supra. 13. According to Arricle 3, SS 17 and lg of rhc Louisiana Constiturion of 1974, a bill has rhe Another concern of the Governor related to racial polarization, which he perceived to 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 Living- ston's chances for re-election were maxim- ized. An Orleans-based district with a 5512 black population was not acceptable to the Governor. As later noted, an Orleans- based district with a 55'z; white population encountered no objection. force and effect of lau, onll i[ passcd bl both houses of thc legislaturc and dclivered to rhe governor w,ithin three da-r's of passage rvith the signatures of the presiding officers, and thc gov. ernor eithcr signs it or fails lo sign or vcto it within ten da-"-s after deliver.r' if the legislarure is in session, or rlirhin '20 days if adjourned. Hence the legislature has no aulhorit\"'to crealc congressional districts indcpcndently of the par. licipation of thc Governor as required bv lhc slate conslitution uith respect lo thc enactrncnt of faus." Smilcr- t,. Holm, 285 U.S. 355, 373, -52 S.Cr. 397, 401, 76 L.Ed. 795 (1932). 334 574 FEDERSL SUPPLEMENT The court finds that the Governor's oppo- Congressman Livingston by adding enough sition to the Nunez il;-;;;;aiot T i, white suburban voters to the First District significant part on its delinea[ion of a ma- to offset the impact of inner city blacks jority black district centered in orleans vot€s, 8s well as the desire of several con- Parish' gressmen a1d stlte representatives to 1o onthemorningofNovemberg,lgSl,thel-idifyin.o*bentBoggs,electoralbaseby Governor announced - his Reconciliatio' dra*ing a district as favorable as possible Plan, cognomened Treen Plan X' Substan- for her' An obvious consideration was the tially similar to the atternatives previously concentration of blaeks in New orleans and rejected by the fugi.f"irr", itan i proUaei the racial composition of the Second Dis- for eight majority *t it" di.t"i.tr.i, That trict. Albeit resolved to avert any retro afternoon the House ,"u"rr"d its position gression of the- approximately 40% black on the Nunez Plan and, by a vote of ?9 to [opulation il^thit district' as configured 22, substituted the Reconciliation Plan as under the 19?2 plan, the goal of fashioning the text of S.B. s. es itrus amended, S.B' 5 a district which was at least 55% Jefferson was returned to the Senate and was there Parish militated against raising substantial- soundly rejected, *'to*i'g the matter into ly the black population percentage of- that conference committee. ii.tri"t. Hence the participants 9"t" Appointmentofaconferencecommitteeminedthattheminority'sinterestinobtain. wasdeferreduntilacompromiseaccepta-ingapredominantlyblackdistrictwould ble to the Governo, "rria be fashioned. hi'" to be sacrificed in order to satisfy Senate President Michael o'Keefe of New both the Governor and the Jefferson Parish orleans summoned ,,interested" parties to group. As chehardy candidly explained: " pii""" meeting in the Senate Computer ' ' ' the feeling in the meeting was that B;;;' situated ii the sub-basement of the the one group' the one contingency St t" C"pit"l. Present at varying times group thaiwas not going to come out of were senators Nunez' o'Keefe and "Hank" ih" *"ttion satisfied was going to be the Lauricetla of Jefferson Parish' Assessor blacks' The reason for that was that Chehardy, Jefferson Parish Representative with all of the competing interests .-.. John Alario, Ircuisiana A.F.L.-C.I.O. Presi- there was probably going to be virtually dent Victor Bussie, Congressman Gillis no wav to satisfy the black members of Long, congressional aides t'o Boggs' ['ong the tegislature . '. insofar as creating a and-T"urir, and members of the Senate majori[' black district [was con- administrative staff. Black legislators c"rnedi. ... They [minority legislators] were not invited, those responsible for call- didn't have enough votes' ing the gathering having decided !l"l th: goal of crafting o oi.iriit *itt' " high mi- Record' Vol' III at 28' ioriil: p-rif" *orla iur" to be aban"doned' Working late into the evening, the sub- A plethora of factors was considered at basement conferees ultimately arrived at themeeting.NunezandChehardyvigor.thatsynthesisofconflictinginterestsincor. ously urged a district ao*it'"t"a Uy: J"ffet- porated into Act 20' See Exhibit sonParish'TreenPlanX,whichsplitthetached.JeffersonParishconstitutesap parish three *"y., *". iiscarded at the proximately 55% of. the Second District un- outsetofdiscussions.AlsostressedwasdertheAcuportionsoforleansParish the necessity of fulfilling the Governor's make up the remainder' St' Tammany' St' objective of gu"""rt ";;; 11" re-election of Bernard and Plaque?nines'parishes' togeth- 14. under Trcen Plan X, rotal population and District ToltlPoPuhti'on %wltrite %Blrc} - -ito.i una uhite population percentagcs for 3 526,73't cl:o 15'63 "".n .f thc eight di.tii.t. u.", 't 525'06? 6'7'06 31 6l 5 525,668 6825 3l 16 ';_tr .ti District Total Populslion % white % BlackI Poputstion % whrte % Black i SZ4,ZSA 73.00 25 90 525.669 68.86 ?8 8? ? 525',t85 79'11 20'6 525,8&5 53.36 i'' tt' 8 525'025 6l'96 37'47 Dist. rb et hr > > )y le E rd a- (> :k d s rll .l- rt r- l- d v h t: ,t v f e t I f. t MAJOR v. TREEN Clrc u 57{ FSupp. 323 (t963) 335 er with the lakefront, New'Oileans east, ' Two, and the adjoining white neighbor- and Algiers seetions of Orleans Parish, are hoods which border [.ake Ponchartrain into placed within the rFirst District. The District One. Moving'south and west, the jagged line dividing the First and Second line fractures Wards 5, 4, 3, and 2 to sepa- bi.tri"tr_co*mences in the east below the rate whiie and black areas into Distriets 7 west bank of the Mississippi River, casting One and Two, respectively. Ward 74, Ward 15 and Plaquemines Parish into Dis- which is 907 white, is aligned within Dis- trict One. Traversing the Mississippi, the trict One. Tracing a northwesterly path line runs north for approximately 15 blocks along the east bank of the Mississippi, the and juts sharply to the east to sever the line extends north to dissect a discrete southern extremities of Wards 8 and 9, black concentration on Carrolton, joining gathering predominantly white neighbor- one part with an expanse of white popula- hoods within District One. Veering north tion in Jefferson Parish. The total popula- through the midsection of Ward 9, then tion, percent deviation from the ideal popu- west through Wards 9, ?, and 8, the line lation, percent black population and percent sweeps the densely-populated black com- black registered voters for each district munity of central New Orleans into District created by Act 20 are as follows: % Black Reg. Voters District boundaries fixed b1' Act 20 are clearly racial in character, selectively seg- regating white and black residents of New Orleans into the majority white First Dis- trict 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 oth- er black wards are fragmented, the integri- ty of predominantly white wards is as- sured. Of the 31 metropolitan precincLs 15. It is important to cmphasizc that our com- parison of the effects of thc Nunez Plan and Act 20 intimates no vieu of thc former as the final 21.5 38.? L2.7 2,.3 24.6 18.1 16.9 2L.9 with a black population of 95?, or higher, most of which are situated precisely on the duck bill, l7 were placed in District One and 14 were plaeed 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, transporta- tion, education and housing. Similar dis- ruption of white neighborhoods is minimal. Senate Secretary Baer, who with Senate staff member Nancy Barringer $'as charged with producing a plan reconciling the disparate interests of the sub-basement conferees, candidl-r- testified that neutral apportionment guiJelines heretofore ap- plied in drafthg the Nunez Plan were jetti- soned in the effort to attain a compro- mise.ri' DistricLs One and Two of Act 20, exprcssion of slate redistricting policv. Both thc Governor and thc legislature are integral componcnls <lf thc legislative process; thus anv I 2 3 4 5 6 1 8 Total Pop. 5i5,319 526,605 526,364 525,067 525,668 524,374 525,186 525,389 7o Deviation % Black Pop. n.5 u.5 15.2 31.6 31.2 25.1 m.7 38.3 - 0.03 0.21 0.17 - 0.08 0.03 - 0.2t - 0.06 - 0.02 336 wiih their distorted shapeq and irregular, indented perimeters, are n0t geographically eompaet. These unusual configurations are not necesEary to ensure adherence to the one-person, one-vote rubric. In con- trast to the Nunez Plan, Act 20 deviates from the natural geographic barrier formed by the Mississippi River, which sep arates an enclave of inner city blacks from whites residing in suburban areas. New Orleans' traditional political sub- unit, the ward,r6 has been selectively frag- mented by Act 20. Black population con- centrations within most of the nine Orleans Parish wards split by the Act have been disrupted, whereas white coneentrations re- main essentially inviolate. Not a single ward is divided under the Nunez Plan. By disregarding parish lines and uniting populated segments of Orleans and Jeffer- plan that does not survive this proccss to bc- come law musl be regardcd as "proffcrcd cur- rcnt policy" which, though cntitled to thoughtful consideralion, cannot bc dccmcd a clcar articu- lation of cstablished stalc goals. See Sr.rry-Sler,- enth Minnesota State Senate v. Beens, 406 U.S. 187, 92 S.Cr. 1477,32 L.Ed.2d I (1972); Carstot-s v. Lamm,543 F.Supp. 68 (D.Colo.1982)', Shayer v. Kirkpatrick, 541 F.Supp. 922 (W.D.Mo.l982) (three-judgc court); O'Sulliwn v. Brier, 540 F.Supp. l20O (D.Kan.1982) (thrcc-judge court). Courts havc nonethelcss rccognizcd that thc far- thcr a bill progresses in thc legislaturc, thc rnorc probativc it is of a discrctc statc policl. Sia;ver t Kirkpatrick; Skolnick v. State Ele.^toral Board, 336 F.Supp. 839 (N.D.lll.l971) (thrcc' judge court). Having so obscn'cd wc notc thal thc first article of the Louisiana Civil Code dc- clares: "I-au' is a solemn cxpression o[ legisla- tivc u,ill." 15. Judgc John Minor Wisdom dcscribed thc ori- gin and political significancc of thc ward in Taylor r McKeithen, 499 F.zd 893 (5th Cir. t974): A u'ard in Neu' Orlcans traditionalll' mcans as much to its residents as a parish or counll- does to its residcnts. Thc Citl has been divid- ed into wards since 1805, and most of thc ward boundaries are far more ancient than an]- question*of Negro voting strength. The direct ancestor of thc prcsent u'ard slruclurc was adopted in 1852. Ward bound- aries havc bccn changed since lhen onlv bv thc addition of neu r,l'ards to accommodalc areas ne*'lv incorporatcd into thc citv, cxcept for a minor changc in 1878 to correct an 574 FEDSRAL SUPPLEMENT son Parishes with mutually exclusive, oft€n discordant needs and concems, Act 20 ef- fectively ignores both hisboric boundaries and obvious communities of interest. Since Jefferson Parish comprises the majority of Aet 20's Second District, the interests of the more conservative, Buburban white pop ulace have effectively eclipsed those of the less conservative, urban blacks who make up only 17.9%, of the distriet's population. Once completed, the new plan was sub- mitted to Governor Treen for review. Af- ter the Governor accept€d the plan on NG vember 11, 1981, Senators Hudson, Nunez and O'Keefe, and Representatives 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 anonrall' and a major change in 1880 when a substantial area was laken from the sixth u'ard and added to thc fourth and fifth. The charrgc of 1880 was the last changc in the ward boundarics to datc. The Home Rule Chartcr of thc Cit1, for 1954 has the same rvard boundaries as its predecessor, thc char- tcrol1912 * * r * r Thc first functiorr of thc u'ards was to serve as thc dislricts from which were clected the aldcrmcn who fornrcd lhc governing council of thc Cit1. Sincc thcn, thev have been used as thc basic units of apportionment for repre- scntativcs in the Unitcd States Congress, for prcsidential electors, for stale scnators and reprcscntativcs, for judgcs and lesser officials ol the city courts, for cilv councilmcn, for tax asscssors, and for thc mcmbers of the numer- ous central or regional committees w'hich form the statutorv slructure of the political partics. The wards havc structured working levels of political organizations. Partics and factions have generalll'been organized along u'ard lines u'ith ward lcaders as major politi- cal powers. Morcovcr, thc u'ards arc real and important parts of the city's lifc and culture. Residents of the City are likely lo speak of themselves as living in the Twelfih Ward, or the Seventh, or thc Fourtccnth, sal in conlexts quitc apart from politics; indccd, in the samc \\,a-v that one w,ould sal' that hc lived in Marignl, or in thc lrish Channel or thc lower Gardcn Dis- t r ict. Id. at 9O445 (footnotcs omitted). Evidence ad- duccd at trial confirmed Judge Wisdom's assess- ment of thc Neu, Orleans political scene. MAJOR v. TRSEN Cltc.r 37a F"8upp.t25 (19&]) 337' @nference report on proposed Aet 20. Voting Pattcrns and Polarization Session of 1981 didacy at the ballot box.r7 17. For each of the 39 elcctions studicd, thc bcr of black registcrcd voters, white registered correlation coefficicnt, or statislical nrcasurc of votcrs or rvhitc pcrsons, couplcd u,ith the num- the strength of the relationship bcnvccn lhc bcr o[ precincts from which data u,erc obtained, voles received bv black candidatcs and thc num- u,crc listed by Dr. Henderson as follou,s: Black White No. of Reg. Voters Pop. Pcts. -.40 -.44 .41 -.04 -.73 _ ,') -.69 -.68 _.40 _.45 -.42 -.45 .00 -.72 -.17 -.31 -.31 -.45 -.63 .39 -.46 -.40 ), \ ,ive, often tct 20 ef- ulndaries l" Since rlrity of Brests of rhite pop c of the lo make ,pulation. ras sub- ew. Af- ronNo r, Nunez s Scott, I)dtoa ,Ione of by the )&ring a ) when a .he sixth hh. Thc e in thc me Rulc he samc he char. to scrve cted thc cou nci I en uscd rr repre- 'css, for lrs and rfficials for tax nun]cr- which lolit ical lorking ies and I along 'poliri- rrtanl sidents 'lves as nth, or aparl ry rhat rorin n Dis- cc ad- ISSe S S, I Representatives Diana Bajoie, John Jaek- There is a substantial degree of racial Bon, Alphons€'Jackson and Henry Braden, polarization e)thibited in the voting pat- members of the legislative Black Caucus, Lrns of Orleins parish. By inserting the v-oiced strenuous objection to the compro- 1gg0 census data in a computerized/ step- mise plan, all arguing that a majority blaek rm, Dr. Gordon Hen- district encompassing orleans Parish was w*e regresslon progrs necessary to enabre minority voters to erecr li"T"ilJ'l.l#';:::ili ;ff'T:?]llqfT; a representative of their choice. The testi- Orleans parish elections between the years mony of Representative Turnley and New 19?6-g2. This program first employed a Orleans Mayor Ernest N. Morial, both black, illustrates that the consensus of regression equation to predict the number opinion amons the stare's minority leaders f#T;fftjil;J'ili",,lljl,: ll;:::; was that Act 20 was inimical to the inter- Another statistical tool, a pearson correla- ests of l,ouisiana's black constituency. tion coefficient, was then used to examine Following an abortive attempt by Repre- all conceivable relationships between a sin- sentative Scott to amend S.B. 5 to expand gle dependent variable, votes in favor of a the Second District's blaek population to black candidate, and several independent 50.2'/,,, the compromise provision was adopt- variables, inter alia, the number of black ed by the committee by a vote of 4 Lo 2, registered voters and total population per with Representatives Scott and Alario dis-senring. JLULL 4!ru ^r4'Irv urD- ffi,:T':Jr"":1ilffi':X5ln:T#lfjl: On November 12, 1981, the House and votes were received. The coefficients de- Senate adopted the conference committee rived bv plaintiffs' expert demonstrate an report. Governor Treen signed this bill almost perfect correlation between a candi- into law on November 19, 1981, and it date's race and that of the voters who became AcL 20 of the First Extraordinary manifested a preference for his or her can- Date E/3/79 4/7 /79 t0/27 /79 lo/27 /79 12/8/79 12/8/79 4/4/81 5/ l6/81 l0/ 17 /81 l0/ I /77 l0/ | /77 lo/ | /77 lo/ I /77 4/30/77 4/5/80 5/t7/& 9/ t3l80 9/ r3/80 8/4/78 I / t6/78 9/ t6/78 l1 /7 /78 Office 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-t^arge Councilman "B" Clerk, Crim. Dst. Ct. Assessor,4th Dst. B.E.S.E.,2nd Dist. B.E.S.E.,2nd Dist. School Board Judge, Section A State Senate,4th Dst Magistrate Judge Judge, SecUon B School Board 426 426 .87 .89 .94 .65 .94 .u .92 .90 .87 .95 .93 .80 .67 426 392 6l 426 86 86 392 426 426 78 a6 3l 194 t94 426 392 60 426 426 426 .94 .fl .62 .89 .91 .u .90 .90 .90 338 57.r l'Er)llnAl. Plaintiffs' quantitaiive showi.ng of polari- zation was buttressed by the testimony of trained political observers. Mayor Morial, now in his second'term, has been aetively involved in politics at the state and local levels sinee his eleetion 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 19?6, Dr. Richard Engstrom, a pro- fessor of political science at the University of New Orleans, found substantial evidence of voting along racial lines. With refer- ence to the 1977 mayoral contest in which Mayor Morial prevailed, Dr. Engstrom opined that the New Orleans metropolitan area was gradually becoming more polar- ized. Defense expert Dr. John Wildgen Office Judge, Section C School Board Councilman-at-large Councilman "B" School Board School Board state senate, 4th Dist Judge, Section A SUPPLEMENT postulated, in a published study,,that racial polarization determined the putcome 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 for candidates of their race. A lower margin of victory for black incumbents evinces a greater re- luctance 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 candi- dates. Black [voters] ... traditionally have voted for white candidates. I think Date 8/ 14/76 8/ 14 /76 'lo/2/76 lo/2/76 tt /2/76 tt /4/80 4/ I /78 ll /4/80 2/6/82 3/20/82 2/6/82 3/20/82 2/6/82 3/20/82 2/6/82 2/6/82 2/6/82 Black Reg- Voters .90 .88 .87 .88 .80 .66 .95 .97 White Pop. -.51 -.50 -.44 -.56 .10 ,.74 -.39 White Reg. Voters -.28 ?, -.54 -.54 -.56 -.48 -.t4 _.45 .35 No. of Pcts. 426 426 426 ?8 426 426 60 392 Civil Sheriff Civil Sheriff Mayor Mayor Judge, Section I Judge, Section I Councilman-at-[arge Councilman "B" Councilman "D" .83 .90 .97 .98 .92 .96 .80 .86 .74 428 428 428 428 428 428 42E 90 9l According to Dr. Hendcrson, thc rangc of a Pearson corrclation coefficient, also knorvn as a Pcarsonian prr>duct momcnt corrclation coeffi- cient, is from -1.0 through 0 to I 1.0. Coeffi- cients of -1.0 and + 1.0 indicatc a perfcct rela- tionship bclu'ccn tu'<i variablcs. In othcr u,ords, a valuc ol -1.0 or I 1.0 cnablcs a statisli- cian lo pcrfectlv prcdicl onc variablc if hc or she knows thc valuc of thc othcr. Coefficients of t.5 and highcr arc dccmed statisticalll sig- nificant. Valucs of .7 or highcr are cxtrcmell rarc, and attesl to a strong correlation bctrvccn lwo variables. A coefficient u'ith a value at or ncar 0, on the other hand, evidences a weak relationship. See generalJy, D..Baldus and J. Cole, Statistical Proof of Discrimination $ 5.321 (1980); N. Nie, C. Hull, J. Jenkins, K. Steinbren- ner and D. Bent, SPSS: Statistical Package for Social Sciences at 279-80 (2d 1975). Thc 39 coefficients calculated bt' Dr. Hender- son rangc fron.r I .51 t(r , .95, indicating that a candidatt"s racc !\'as thc single variablc most predictivt' o[ thc nunrbr'r of voles receivcd br' that candrdatc. 1$'i' . MAJOR v. TREEN Gllc rr 5?l FSupp. 325 (19t3) 339 there is some fegling 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 eross-over vot- ing in three recent New Orleans elections. This analysis, prepared by demographics expert Kenneth Selle, sampled returns from 3? 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 method to select test precincts severely biases the results of his analysis. The units chosen are not repre- sentative of the 400 or more precincts in New Orleans, and hence are not sufficient- ly 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 re- turns of a mixed precinet, whether individu- als who voted for a particular candidate are black or white, data drawn from such pre- cinets are of scant probative value. For these reasons, the court attaches little weight to defendants' cross-over analysis. Assuming, arguendo, that defendanLs had established the existence of a signifi- cant white cross-over vote in Orleans Par- ish, 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 con' stituency is unique to Orleans Parish. Sim- ilarly eclectic voting preferences cannot be anticipated in the adjacent suburban par- ishes, whose recently enhanced populations It. Demographic studies preparcd by Mr. Sclle were offered to shou' projected racial popula- tion growth between the 1980 and l99O census' es. Through these studies, defendants sought to prove a future increase in the black population percentage in Act 20's Second Congressional District of clos€ to 6.70/o and, in the First Dis- trict, of l.5ozo. Given Mr. Scllc's failurc to dis- tinguish blacks from a srgnificant number of c'hnrc and racial groups subsumcd within thc Crir.r;- Bureau's non-whitc categor)', and to ap- can be partially ascribed to the exodus from New Orleans of white families seek- ing to avoid courtordered desegregation of the city's public schools. / Nor does the fact that several blacks have gained elective office in Orleans Par' ish detract from plaintiffs' showing of an ' overall pattern of polarization. To the con' trary, Mayor Morial attributes his vietory in the 1982 mayoral race to his success in marshalling the black vote. Of the approx' imately ?0 Orleans Parish officials elected throughout the parish, only l5%,are black. A greater number of minority officeholders would be expected in a parish with a black population of 55'I . According to the expert testimony, [.oui- siana's majority vote requirement, which ordains that a winning candidate must re- ceive more than half the votes cast in an election, inhibits political participation by blaek 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 vot- ers, substantiallv diminishes the opportuni- ty for black voters to elect the candidate of their choice. Mr. Selle testified 'that in l,ouisiana a threshold black/white popula- tion ratio of 62138 is a prerequisite to the ereation of a "safe" minority district, or one in which the election of the candidate preferred by black voters is guaranteed. Conversell', a 50/50 ratio of black to white population gives rise to a safe white dis- trict.rx Discrimination: Past and Present l,ouisiana's history of racial discrimina- tion, both dc jure and de./acto, continues to have an adverse effect on the ability of its black residenLs to participate fully in the pl1' his mcthodologl in a consistent manner to all parishes u'ithin the targeted districts, the court finds lSese data highlv suspect and inade- quate to prove that the Second District's black population percentagc u'ill increase significantly undcr thc presenl Act. See Kirkpatrick v Prels' ler, 391 U.S. 526, 535, 89 S.Ct. 1225, 1231' 22 L.Ed.2d 519 (1969) ("If]indings as to population lrcnds must bc thoroughll'documented and ap' plied throughout the Statc in a systematic, nol an ad hoc, manncr."). tf 340 electoral process. Dr. . Ralph Cassimere traced that history !o its genesis duiing the era of slavery, when the franchise was confered exclusively- upon white males. With the advent of post-Civil War Recon- struction, black males were permitted to register. Between 1868 and i896 many blaek state legislators were elected. Two blacks were elected Lieutenant Governor and one, P.B.S. Pinchback, was selected by the state Senate to fill a vacancy in that position and later served as Acting Gover- nor. 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 Repre- sentatives but only one, Charles E. Nash, was seated. Charles Vincent, Black Legis' lators in Louisiana During Reeonstruc- tion. Although black suffrage flourished from 1867 to lil98, a gradual return to white supremacv culminated in the Louisi- ana Constitution of 1898. At that time, tht' state succeeded in imposing a "grandfa- ther" clause, as well as educational and property qualifications for registration. These requirements combined to reduce black voter registration from apJlroximate- ly 135,000 in 1896 to less than 1,00() in 1907. Following the Supreme Court's invalida- tion of the grandfather clause in 1f)1i. 19. Statistics dcnronslrating lhc cxlenl of blatk disenfranchiscmcnl bc(u,een l9l0 and Octobcr 574 FEDERAL $UPPLEMENT Guinn u United SLates, 238 U.S. U7, 35 S.Ct. 926, 59 L.Ed. 1340 (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 funetioned to deny blacks access to the determinative elections, inasmuch as Republiean opposi- tion to the Democratie party in the general elections was nonexistent. This strategem persisted until its condemnation in Smith u. Allu'right, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (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 partl, committees in 1959. For a quarter of a century, from 1940 to 1964, the States Rights Partv spearheatled a strong movement against black enfran- chisement and judiciallv-directed desegre- gation. But for those declared unconstitu- tional bv the Supreme Court, the various disenfranchisement techniques implement- ed bv the state and its white majority par- ties sulipressed black political involvement until banne.d br- Congress in 1965.re Like other southern states, Louisiana en- forced a policv of racial segregation in pub- lic education, transportation and accommo- 196{, irrclusivc, havc becn compilcd in Louisi- ana Politics at 299 (Bolncr, ed. 1980): ( t I I I l I l I Black Voter Registration in Louisiana, lgt0 l964 Dates Black Reg Est. Black Adult Pop. (Most Recent Census) /e Black Adult Pop. Reg. to Vote l9l 0 1920 1928 1932 Oct., 1936 Oct., 1940 Oct., 1944 Oct., 1948 Oct., 1952 July, 1954 Oct., 1956 Dec., 1960 Dec., 1962 Oct., 1964 I 74,21 I (Males) 359.251 359,25r 4t5,M7 415,U7 473,562 473.562 473,562 481.2U 48r,2U 48t,2U 5t4.589 514,589 5 r 4.589 730 3,533 2.Ov I,591 t,981 886 r,672 28,177 r07,u4 I 12,789 I 52.578 r 58,765 I 50.E78 tu.7t7 .4 .9 .5 2 .4 .t..3 5 ,) 23 3l 30 29 32 dations. Despite the Supreme C,ourt's rul- ing in Broun u. Boardif Education, 347 u.s. 483, ?4 S.Ct. 686, 98 L.Ed. 873 (1954), local school_boards refused to desegregate in the absence of a federal court order. Even today, the federal courts are com- pelled to monitor schools around the state for compliance with Brou,n 's teachings. A dual university system was operated by the state until 1981, when it was dismantled pursuant to a consent decree. Public facili- ties were not open to members of both races until the late 1960s. As a eonsequence of this history, sepa- rate 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. Diserimi- nation in employment was widespread. While direct impediments to black regis- tration and 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 Ircuisiana in this century, nor has any served in Congress since the days of Reconstruction. Notwithstanding a black population of 29.4'k, onlry l'y' of l,ouisiana's elected officials are black. Curuent census figures disclose that blacks on the average earn less than whites; 95'/i of all persons with an income of less than $5,000 are 20. H.R.3ll2, amending $ 2 to incorporatc a "rc- sults" tesl and extend the 1965 Voting Rights Act, was passed by thc Housc on October 15, 1981. The Senate adoptcd the version of S 2 reported out of the Senale Committee on the Judiciary, 5.1992, on Junc 18, 1982. On June 23, 1982, the House unanimously adopted the Senate bill. As signed into las bl the Presidcnt on June 29, 1982, amended $ 2 of the Voting Rights Act of 196-s, 42 U.S.C. 5 1973, provides: (a) No voting qualilication or prerequisitc to voting or standard, practice, or procedure shall be imposed or applied b1' an1' State or political subdivision in a manner which re- sults in a denial or abridgement of the right of an_r.. citizen of the United Slates to votc on account of race or color, or in contravenlion of the guarantees set forrh in S 4(0(2) [42 U.S.C. S 1973(f)(2) l, as provided in subsec- tion (b). (b) A violation of subsection (a) is established if, based on the lotalil) of circumstances, it is shown that the political processcs leading to IIIAJOR v. TREEN . ' Cltc o 37tl F.&rpp.!25 (t9&i) 341 blaek. Blacks in contemporary [-ouisiana have less education, subsist under poorer Iiving conditions and inlgeneral occupy a lower socioeconomic status than whites. Though frequently more subtle, employ- ment discrimination endures. These fac- tors are the legacy of historical discrimina- tion in the areas of education, employment and housing. Such influences, in conjunc- tion with past election practices excluding blacks from the political process, account for the present disparity between black vot- er registration and black population in Or- leans 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 perva- siveness of prior discrimination, both public and private, is perceived as discouraging blacks from entering into the governmental process. Conclusions of Lav, t5,6l Invoking its authority to enforce the substantive provisions of the Four- teenth and Fifteenth Amendments, Con- gress recently amended S 2 of the Voting Rights Act of 1965, 42 U.S.C. S 1973 (1982).2') Specifically designed to reach claims of voting dilution heretofore deemed beyond the ambit of 5 2, Report on 5.1992 of the SenaLe Committee on the Judiciary, S.Rep. No. 97417,9?th Cong., 2d Sess. 28 (1982); Rybicki a. State Board of Elec- nomination or elcction in thc State or politi- cal subdivision arc not equalll opcn to partici- pation by members of a class of citizens pro- tectcd b)' subsection (a) in that its members have lcss opportunitl than other members o[ the electorate to participatc in the political process and to clect represenlatives of their choicc. The extcnt to u,hich members of a protected class havc been elected to office in the Statc or political subdivision is one cir- cumstancc which may be considered: Prot,rd- ed, That nothing in lhis seclion establishes a right to have members o[ a protected class elected in numlcrs cqual to their proportion in thc population. We are persuaded that Congress intended the 1982 amendments to take effect immediatell', and thus to apply lo pending cases. .Sce 128 Cong.Rec. H3841 (daill ed. June 23, 1982) (re- marks of Rep. Senscnbrenner); id at 57095 (dailv ed. June 18, 1962) (remarks of Scn. Ken- ncdy, majority floor manager of S.l9q2). /4c- 342 tions, 574 F.Supp. 1082 \(N.D.Ill.l983) (three-judge court),2r the 1982 amendment dispenses with .the requirement that a plaintiff demonstrate intentional diserimi- nation in the imposition or maintenance of the disputed electoral structure. S.Rep. No. 97-417 at 16. See Buchanan u. City of Jackson, 708 F.2d 1066 (6th Cir.1983); Campbell 1). Gadsen County School Board, 691 F.zd 9?8 (llth Cir.7982); Mc- Millan o. Escambia County,688 F.zd 960 (5th Cir.1982), jurisd. postponed, - U.S. cord, Hartman, Racial Vote Dilution and Scpa- ration of Powers: An Exploration of thc Con- flict Betwecn the Judicial "lntent" and thc Lcgis- lative "Rcsults" Standards, 50 Gco.Wash.L.Rcr'. 689,725 (1982). Several dilution actions initiat- ed prior to June 29, 1982, the cffectivc datc of the amendments, have been disposcd of pursu- ant to amended S 2. Sec, e.9., Rybicki t Sratc Board ol Elecrions, 574 F.Supp. 1082 (N.D.Ill.l983) (three-judge courr)', Thomasville Branch ol the N.A.A.C.P. v. Thontas County, Cit'il No. 75-THOM (M.D.Ga.l983); Joncs r Citl' ol Lubbock, Civil No. C.A. 5-76-34 (N.D.Tex.l983); Taylor v. Haywood County,544 F.Supp. 1122 (W.D.Tenn.l982) (grant of preliminary injunc- tion). In Rybicki, the court found that applica- tion of $ 2 to a districting plan did not presenl a retroactivity issue becausc its analysis focuscd on the effects of the plan in fulure elections. 21. ln City o/ Mobilc v Bolden, 446 LI.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 17 (1980), lour Justiccs ol' the Suprcmc Court opir.rcd lhat votc dilution claims arc cognizable solcll urtdcr lhc F'our- leenth Amcndmenl. Undcr thc pluralitr''s rrar- row conslruclion, thc Fiftccnth Amcndrtrcnl bars onll a dircct, purposeful dcnial or abridg- ment of thc right of a black pcrson lo volu. Since fornrcr g 2 of thc Voring Rights Act of 1965 "u'as intcnded t() havc an cffcct no diflcr- enl from that of thc F-iftecnth Amcndmcnt it- self ," id. al 61, 100 S.Ct. at 1496, it likcs'isc rvas nol decmcd to support a dilution causc of ac- tion. Though the Fourth, Fifth and Eighth Cir- cuits havc concluded thal thc fivc-Justicc major- ity subscribes to thc viert that thc Fiftcc-nth Amcndment givcs risc to a dilution claim, sec, e.g., Perkins t. Citt' o/ West Helena,67.5 F.2d 201 (8th Cir.), all'd mem. - U.S. -, I03 S.Ct. 33, 74 L.F;d.zd a7 (1982\; Washington r Finlay, 664 F.2d 913 (4th Cir.l98l); I.odge r. Buxron, 639 F.2d 1358 (5th Cir.t98l), aff'd sub nortt. Rogcrs v. Lodge, 458 U.S. 613, 102 S.Ct. 3272, 73 L.Ed.2d l0l2 (1982), the Supremc Court itsclf tallies a minority of three. Rogers v. Lodge, 15E U.S. 613, 619 n. 6, 102 S.Cl. 3272,3276 n. 6, 7.3 I-.Ed.2d l0l2 (1982) ("Thrcc' Juslices l.lrrst ic c Stevens, concurring, and Justices \\'l'ii( r,',(i Marshall, dissenting] disagreed u,ith the pii.., .,t, tr"s basis for putting asidc the Fiftccnth Arrr : . 5?4 FED.ERAL SUPPLbMENT -, 103 S.Ct. 1?66, ?6 L.Ed.zd 341 (1983). Guided by the axiom that caSes should be resolved, where possible, on statutory rath- er tlan constitutional grounds, we shall analyze plaintiffs' dilution claim under the amended 5 2.22 A. Constitutionality of Amended Sec- tion 2. 171 Before proceeding to the merits of plaintiffs' dilution claim, we must address ment."). The Rogers court expressed no opinion on this issue, leaving undisturbed the plurality's decision with respect to the applicability of the Fiftcenth Amendment and the original version of g 2 to dilution claims. &e Campbell v. Gad. sen County School Board; McMillan v. Es- cambia County. Nor, as discussed infra, need we c:onsider the issue. 22. Dilution jurisprudence has evolved primarily in thc conlcxt of constitutional challenges to slalc at-largc or multimcmber districts. Though thc Suprcmc Court has not directly addressed thc issuc, this circuit has recognized that the standards for dccision dcvcloped in thc multi- mcrnbcr or at-largc districting cascs govern the adjudrcation of claims involving lhe constitu- lionalitv o[ singlc-mcmber districts. Nevett v. Sides, 571 F.2d 209 (5th Cir.l978), cert. denied, 4116 U.S. 9-sl, lO0 S.Cr. 2916, 64 L.Ed.2d 8O7 (1980); /iir['.sef t Board ol Supervisors, 554 I.'.2d 139 (5th Cir.), cerr. denied,434 U.S. 968, 98 S.Ct. .512, 51 L.Ed.2d ala (1977); Robinson v. Corrtntissioners Court, 505 F.2d 674 (5th Cir. 1974). Sec R. Dixon, Dcmocratic Representa- lior.r: Rcapportionmenl in Law, and Politics 484 (1968). With rcgard lo thc applicability of the dilution rationalc to congressional districting cascs, u,c belicvc thc bettcr vicrv is thal irrcspcc. tivc of u'hcthcr a stalc legislalive or congres- sional districling plan is thc subject of disputc, "'t'c arc required to deterntine the samc ques- tion, u,lrcther or not there has been an urrconsti- tutional manipularion ol thc electoral district boundaries so as to ntinimize or dilute the voting slrcngth ol a ntinority class or interest."' Nevett r,. Sr7c.s, 571F.2d al 219 (quoting from Robinson r'. Corrtrttissiotrers Court, 50-5 F.2d at 678) (em, phasis in original). Sec, e.9., ln re: Pennsylva- nia Congressional DisTricts Reapportionment Case.s, 567 F.Supp. 1507 (M.D.Pa.1982) (three- judgc court), afl'd su5 notrt. Simon y. [ayi5, -U.S. -, 103 S.Ct. 3561, 77 L.Ed.2d 1405 (1983); /, re: Illinois Congressional Districts Re- apportionrnc,tt Cases, No. 81-C-3915, (N.D.III. l96l) (three-judgc court), all'd mem. sub nom. R*tn r. Oro, 451 U.S. 1130, 102 S.Ct. 985, 7l L.I-rd.2d 284 (19E2). Sinrilarll, the "totalitl, of circumstances" anal, vsis, deriveci from the multimember dilution ll '. i' MAJOR v: TREEN t '- . Chc.r37aFSupP.325 (19E3) defendants' challenge to the 1982 bmend- rcgative to define the limits of the Consti- ment to S'2. Defendants take the position tution. ^.*A 343--EF" F that in codifying a test which relieves com- plainants of the burden of proving invidi- ous intent, Congress has sought to over- rule 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 a. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). Given the congruence of S 2 and the Fifteenth Amendment, de- fendants argue, the separation of powers doctrine precludes Congress from expand- ing the statute to reach claims founded on discriminatory impact alone. By amending 5 2 to accomplish this impermissible aim, the legislature has, in defendanG' estima- tion, usurped the judiciary's exclusive pre- cases of White v. Regester,4l2 U.S. 755, 93 S.Cl. 2332, 37 L.Ed.2d 314 (1973), and Zimmcr v- McKeithen, 485 F.2d 1297 (5th Cir.l973) (cn banc), aff'd on other grounds sub notn. Easr Canoll Parbh School Board t Marshall, 424 U.S. 636, 96 S.Ct. t083, 47 L.Ed.2d 296 (1975\ (per curiam), is equally applicablc to stalc lcgis- lative or congressional districting schcmcs. Ac' cording to the Scnatc Judiciarv Committcc: Whircomb lv. Chavis, 403 U.S. 124, 9l S.Ct. 1858, 29 L.Ed.2d 363 (1971) l, Wtite, Zintmer, and their progeny dealt with elcctoral svstem features such as at-large clections, majority' vote requircments and [state lcgislativc] dis- tricting plans. However, Section 2 rcnlains the major statulory prohibition of oll votittg, ights discriminalion. S.Rep. No. 97417 at 30, U.S.Code Cong. & Ad- min.Neu,s, p. 207 (emphasis added). 23. ln White v. Regester, 412 U.S. 755, 93 S.Ct' 2332,37 L.Ed.2d 314 (1973), the Suprcmc Court identified a panopll'of factors relcvant to the determination whether a multimembcr or at' large districting system denied blacks and His' panic voters full access to thc political process Focusing on whether the districts operated to dilute the voting strength of racial and ethnic minorities, the Court held that "the impact o[ the district . .. constituled invidious discrimina- tion;' Id. at 767, 93 S.Ct. at 2340. The Former Fifih organized the White criteria into a coher- ent 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), afl'd on other grounds sub notn. East Conoll School Board v. Marshall,424 U.S. 636,96 S.Cl. 1083, 47 L.Ed'2d 296 (1975) (per curiam). Until the Fiflh Circuit rec<rnsidered the impact-orie nled Zim m er an al 1'' sis in light of Washington r. Davis, 426 L.5.229' In amending S 2. Congress reaffirmed "the right of minoiity voters to be free from election practiees, procedures ol methods that deny them the same opportu- nity to participat€ in the political processes other citizens enjoy." S.Rep. No. 9?-41? at' 28, U.S.Code C,ong. & Admin.News, p. 206. T\uo principal objectives of the Btatutory "results" test were posited: to reach dis- criminatory eonduct which might otherwise evade liability under the more stringent intent assay, and to eradicate the contem- porary effects of past discrimination. Id. at 40; H.R.Rep. No. 97-227,97th Cong., lst Sess. 3 (1981). To this end, amended S 2 resurrected the principles applied in voting registration cases prior tn Bolden.z3 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), and Villase ol Arlington Heights v. Metropolitan Housing De- velopment Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 45O (1977), plaintiffs asserting dilution claims in this circuit could prcvail by dcmon- strating cithcr discriminalory rcsults or intent. See authoritics cilcd in Nevett v. Sides, 571 F.2d at 232 (Wisdom, J., spccially concurring). In Nevett, thc court rulcd that while a showing of invidious inlcnt is csscnlial lo recovery under thc Fourtccntlr and Fifteenth Amendments, such intcnl could bc infcrrcd from proof of'an aggre- gate of thc Zimnter faclors. A pluralitl' of thc Supreme Court subsequent- ly rejcctcd the Fifth Circuit's cffort, in Nevetr, to rcconcilc Zitnmer with Washington and Arling' ton Heights b-v.. injecting an intent requirement, opining lhal Nevett r.l'as prcmised on a misap- prehension that proof of discriminatory impact permittcd an inference of discriminatory intent. Acknow'lcdging lhal Zimnter's circumstantial factors might "afford somc evidence of a dis- criminatory purposc," the plurality stated that such factors would not alone furnish sufficient evidence thereof. 446 U.S. at 73, 100 S.Ct. al 1503. With resp€cl to the significance of Bol' den, this courl later opined that "... it appears thal the Supreme Court has someu'hal increased the proof on plaintiffs in Ivote dilution] cascs." Accord, Indge v. Bttxton,639 F.2d 1358, 1373 (5th Cir.l98l), allA sub nom. Rogers t Lodge, 458 U.S. 613, 102 S.ct. 3272, 73 L.Ed.2d l0l2 (1982). Conment, The Standard of Proof in Artarge Vote Dilution Discrimination Cases Af- ter City ol Mobile v. Bolden, l0 Fordham Urb. L.J. 103 (1981). A majority of the Supreme Court Justices evidentll concurred in this judg- menl. &r footnote 22, inlra. For an exhauslive survey of vote dilution ju' risprudcnce, from rts origins in the seminal casc \f'rt 344 According .to the Report of the Senate Committee on the Judicidry: ln pre-Bolden cases plaintiffs cJuld pre- vail by showing that a challenged elec- tion law or proceduie, in the context of the total circumstances of the local elec- toral process, had the result of denying a racial or language minority an equal chance to participate in the eleetoral process. Under this results test, it was not necessary to demonstrate that the challenged election law or procedure was designed or maintained for a discrimina- tory purpose. In Bolden, a plurality of the Supreme Court broke with precedent and substan- tially increased the burden on plaintiffs in voting discrimination cases by requir- ing proof of discriminatorv purpose. The Committee has concluded that this intent test places an unacceptably diffi- cult burden on plaintiffs. It diverts the judicial inquiry from the crucial question of whether minorities have equal access to the electoral process to a [sic] histori- cal question of individual motives. S.Rep. No. 97-417 at 16, U.S.Code Cong. & Admin.News, p. 193.2' Regardless of whether former 5 2 pur- ported to traek the Fifteenth Amendment, and thus mandated proof of invidious in- tent, Congress has since elected to broaden the statutory proscription to etnbraee con- duct which is discriminatorv in either pur- of Reynolds r,. Srrs, 377 U.S. 533, 8-1 S.Ct. 1362, 12L.Fd.zd 506 (1964), to Bolden, scc thc Rcporl on S.1992 of thc Scnatc Judiciarv Committcc, S.Rcp. No. 97417 ^r 19-27. 24. Whilc reaffirruing thc Bolden purposeful dis' criminalion rcquiremcnt, lhc Supreme Courl has itsclf alleviatcd l() some degrec the com- plainant's burden o[ proof in Rogers v. ktdgc, 458 U.S. 613, 102 S.Ct. 3272, 73 L.Ed.2d l0l2 (1982). ln Rogers. six Jusliccs approvcd thc Fifrh Circuit's rcliance upon proof o[ Ihe factors sct forlh in Zimmer t McKcithen,485 F.2d 1297 (5th Cir.l973) (en banc), aff'd on other grountls sub nont. East Carroll Parish School Board t Marshall,42.l U.S. 6.36, 96 S.Ct. 1083, ,17 L.Fld.2d 296 ( 1975) (per curiam), to drau' an infercncc of discriminatory intent in a votc dilution casc. Bl' apprcrving judicial resorl to lht Z-imnter cri- teria, hcrctofore adludgcd inadc<luale in Boldett, to establish intent, and evincing grcater dcfer- cncr t() the factual findings o[ thc trial court, sza TnJnnAL SUPPLEMENT pose or effect. Assuming that amended S 2 constitutes a valid exercise of [egisla- tive power, therefore, the Bolden,court's interpretation of the original 5 2 is iro long- er 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 consti- tutional muster, such provisions having been deemed to fall within the purview of Congress' enforcement authority. Section 4(a) of Act, 42 U.S.C. S 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 x. Katzenbaci, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.zd 769 (1966). Addressing the state's contention that Con- gress had exceeded its enforcement powers under S 2 of the Fifteenth Amendment, the Kat:otboch court proclaimed that "Cori- gress has full remedial powers to effectu- ate the constitutional prohibition against racial discrimination in voting." Id. at326, 86 S.Ct. at 8l?. The Court has sinee eited Katzcnbach for the proposition "that con- gressional authority [embodied in S 2 of the Fifteenth Amendment] extends beyond the prohibition of purposeful discrimination to encompass state action that has discrinii- natory impact perpetuating the effects of past discrimination." Fulliloae a. Klutz- thc Rogers opinion "signals a significant retreat fronr thc Boldcn pluralitl's racial votc dilution analvsis and a rcvitalization of tht: Zimmer f ac- tors in thc contexl of an Iintent] ... inquiry." Hartnran, Racial Vote Dilution, 50 Geo.Wash.L. Rc\. al 716-t7. See Buchanan v. City ol Jack- son,7O8 F.2d 1066 (6th Cir.l983) (because Bol- den appcared to requirc direct evidence of dis- crirrrinatorl intcnl, u'hereas Rogers restores the signilicance of circumstantial evidence in as- ccrlaining lhe cxislcncc of such intent, thc latter rcprcsents a marked departure from the plurali- ty's opirrion in Bolden); McMillan v. Escambia Count:-; Carduell, \oter Diluion and thc Stan' dard of Proof, 14 Urban [-au 863 (1982). Dis' senting Justiccs Porr,ell and Rehnquist maintain that thc holdings in Bolden and Rogers cannot be rcconciled, suggcsting that the Bolden ralion' alc has in effect bccn repudiatcd by thc majori- t]. Roger-s t Lodge, lO2 S.Ct. at 3281 (Rehn' quist and Pou,cll, JJ., dissenting). |,[ -' -- nick,448U'S.448,4T,100S.Ct-2?S8,theFourteenthAmendment'AsChiefJus. nlll,, OS L.Ed.Zd 902 (1980) (dicta).2i' tice Burger subsequently observed, in dis- Later in the 1966 term, in Katzenbach t:' cussing the import of filorgan: uorgon, 384 u.s. 641, 86 s.ct. 1?17, 16 To uphold this exercise of congressional / r,.pi.za'azs (1966), the supreme Court sus- authority, the Court found no prerequi [ined s 4(e) of the Voting Rights Act of site that application of a literaey require- 1965, 42 U.S.C. S 19?3b(e), against an at- ment violated the Equal Protection tack founded on S 5 of the Fourteenth Clause.... It was enough that the Amendment. Section 4(e) forbade the use Court could perceive a basis upon whieh of English literacy tests to deny the right Congress could reasonably predicate a $J;*-lo:""ff;","J,*if ll' t?H:": judjment that apprication or riteracv Flag" school, in whieh the language of ;T,':iY:lTo,I'.'*lir":lirilH::"t ;1 instiuction was other than English' This cess to the ballot and consequently in ffi||"",:J"T, iI"i,::,)"J."";'I":,i:',".:- terms or access to the pro'ision or ad- Writing for the majority, Justice Brennan ministration of governmental programs' "n"togir"d congress' Q I authority Lo, irt.- Fu,llilotte t,. Klutznick, 448 u's' at 477, 100 ter alia, the plenary grant of the necessary S.Ct. aL 2774 (dicta) (citations omitted)' and proper clause, Article I, S 8, cl' 18' Congress' enactment of a five-year na- Thus, the critical question was "whether tional ban on the utilization of qualification 5 4(e) may be regarded as an enactmetrt to tesls and ,evices in federal, state and local enforce the Equal Protection Clause, ' " elections, which took the form of S 2(d) of whether it is 'plainly adapted to that end.,' the Voting Rights Act amendments of and whether it is not prohibited bl' but is codified at 42 U.S.C. consistent with 'the letter and spirit of the 1970' current verston constitution.' " Id.. aL651,86 s'ct. at 1?2:l s 19?3b' was sanctioned by the court in (quoting f.rom McCullock u. Marylatd, 17 oregort u' Mitehell' 400 U'S' 112' 91 S'Ct' U'S. (4 Wheat') 316, 421, 4 L'Ed' 5?9 260' 27 L'Ed'2d 272 (1970D'26 Although the (1819)). Notwithstanding the absence of a Justices authored five separate opinions' all record of actual discrimination the Court nine stressed that Congress is endowed endorsedCongress,passageofameasurewithsubstantialdiscretioninenforcingthe which remedied historical discrimination, Reconstruetion ametrdments' Once again' and enabled the Puerto Rican communit.v- Lhe FullilotLe court's commentary is in- to combat prospective state violations of structive: .MAJOR v. TREEN '' ClrcuS?lFsupi.325 (t9tJ) 345 sure compliance u'ith existing federal staluto- n' or constitutional antidiscl'imination provi- si,rns, but also, u'here Congrcss has authorit-v- to declare certain conduct unlawful, it may ... authorize and induce stale action lo avoid such conduct., 448 U.S. at 483-84, IOO S.Ct. at 2777 (citation omittcd). 26. At issuc in Mirchelt were provisions of the Voting Rights Act Amendments of 1970, P'L No' 9l-28.5. whichl (l) reduced the minimum voting agc in statc utid f"d"iul elections-the laller was .,itr"la Ul the Court, and the former stricken as unconstitutional; (2) eliminated Iiteracy tests or devices for a five'year term in state and federal elcctions throughout the countrv-upheld; and (3) erection of a bar lo state requirements dis- qualifling voters in presidential elections--also uphcld. 25. ln Klutznic,t, a pluralitv of thc Suprcmc Court upheld the constitutionalitl ol thc "mi- nority business enterprise" provisiorr of 1tr9.t'^u!- lic Works Employment Acr of 1977,42 U'S'C' S 6705(0(2), whiih dictates that 1004 of fedcral irants for local public works projcctt b9. t"l iside for minority business enterprises Chief Justice Burger's piuralitl'opinion displays a dcf- erential attitude ioward Congress' exercise of its remedial Powers: Here we deal . . not u'ith thc limited rcme- dial powers of a federal court, ' but u'ith the bioad remedial powers of Congress' It is fundamental that in no organ o[ governmenl' state or federal, does there repose a more comprehensive remedial poucr than in the Congress, expressll' charged bl thc Ct'nstitu- tion with competence and auttroriti to etr' force equal protection guarantcc\' C1)l'lgrcss not onll' mav indrtce volunlan 3iIt I lt) a\ I--- 346 574 FEDERAI, SUPPLEMENT The fMitchell ] Court was unanimous, a)- beit in separate opinions, in concluding that Congress was within its authority to prohibit the use of such voter qualifiea- tions; Congress could reasonably deter- mine that its legislation was an appropri- ate method of [foreclosing the possibilitv that purposefully discriminatory adminis- tration of Iiteraey tests would eseape un- detected and] attaeking the perpetuation of prior purposeful discrimination, even though the use of these tests or devices might have diseriminatory effects onlv. Fulliloue u. Klutznick 448 U.S. at 477,700 S.Ct. at 2774 (dicta) (citation omitted). In an opinion issued contemporaneousll' with Bolden, City of Rome t United States, 446 U.S. 156, 100 S.Cr. 1548, 61 L.Ed.2d 119 (1980), the Supreme Court re- jected a constitutional assault on S 5 of the Voting Rights Acl,42 U.S.C. S 1973c. Un- der 5 5, any change in voting or election laws proposed by a covered jurisdiction will not be approved, or "precleared," bv the United States Attorney General unless it "does not have the purpose and u'ill not have the effect of denying or abridging the right to vote on account of raee or col- or...." Though fullv cognizant that the Fifteenth Amendment prohibits onlr- inten- tional discrimination, the Court stated that 5 2 of that amendment permitted Congress to interdict election l)rocedures which lvere not in and of themselves motivated ir1' ra- cial animus, but which created the risk of purposeful discrimination or perpetuated the effects of past discrimination. Id. aL 176,177,100 S.Ct. at 1561. At the heart of the decision lies this finding: Congress could rationalll' have concluded that, because electoral changes b.r'juris- dictions u'ith a demonstrable historl' of intentional raeial discrimination in votirrg create the risk of purposeful discrinrina- tion, it was proper to pr<.rhibit changes that have a discriminatorf impact. . . . We find no reason, then, to disturb Con- gress' considered judgment that banning electoral changes that have a discrinrini, tory impact is an effective method of preventing States from "'undo[ingl r,r defeat{ing] the rights recently'won' by Negroes." Id. at 177-78, 100 S.Ct. at 1561-62 (quoting from Beer a. United States,425 U.S. 130, 140, 96 S.Ct. 1357, 1363, 47 L.Ed.2d 629 (19?6)) (citations and footnotes omitted). Such remedial measures need only be "ap propriate," within the meaning of McCul- loch a. Maryland, in order to effectuate substantive righls secured by 5 1 of the Fifteenth Amendment. Similarly, Congress here determined, af- ter 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 raeism whieh must ineritably be leveled against individual offi- cials or entire communities, and, most im- portantlr., compelled protracted, often fu- tile inquiries into the motives of officials who acted man]- years ago. S.Rep. No. 9i-41i at 36-3?. Ultimately, the state de- fendants could all too easily advance racial- lv neutral justifications in rebuttal. In Congress'judgment. the danger that a de- fendant officia) would seek to rebut the plaintiff's circumstantial et'idence of pur- poseful discrimination "by planting a false trail of direct evidence in the form of offi- cial resolutions, sponsorship statements and other legislative historv eschewing any racial motive . . . seriousll' clouds the pros- pects of eradicating the reniaining instanc- es of racial discrimination." Id. at 37. See Extension of the Voting Rights Act: Hear- ings Before the Subcommittee on Civil and Constitutional Righls of the House Com- mittee on the Judiciary, 9?th Cong., 1st Sess. 11i{9 (1982) (testimonv of Joaquin Avi- Ia, counsel for the Mexican-American l,egal Defense Fund) (contemporary official dis- crimination more subtle; s/hoking gun evi- dence of racial animus can no longer be discerned in the public record). Congress thus sought to enact a legisla- tive prophvlaxis, calculated to forestall the institution of potentialh' discriminatory electonrl \.,:.tetrs anr.l r-,xiirl,t,tt faciallv ttt'utrlil ii, .'rrt'. or lrrticrdur.-,s tr lti,:Ii conLin- il( tr. i \,,,...- niilti,l'ii\. r',,i,. l'. ttr Larnrful _:!6,-_ B MlloR v. TREENl" tltc ri 37. Fsupp. !2s (t9t3) 347 consequences rooted in histohcal discrimi- cause this is a means of preventing their nation. S.R6p. No. 97-{1? at 40. Summar- izing the bases for their conclusions that proper enforcement of the Fourteenth and Fifteenth-Amendments required a ban on election procedures and practices which cul- minate in a denial or abridgement of the right to vote, the drafters found: (1) that the difficulties faced by plain- tiffs forced to prove diseriminatory intent through case-by-case adjudica- tion create a substantial risk that in- tentional discrimination barred by the Fourteenth and Fifteenth Amend- ments go undetected, uncorrected and undeterred unless the results test proposed for section 2 is adoPted; and (2) that voting practices and pro- cedures that have discriminatory re- sults perpetuate the effects of past purposef ul discrimination. Id. 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, be- 27. Recognizing that it wielded a figurativc two- edged su,ord, onc rvhich might be turncd against it in such controversial arcas as school prayer, busing and abortion, thc Scnate Judici' ary Committec reasoned: It has been suggcsted that thc Committee bill [S.1992] u,ould overturn a constilulional dcci' sion b1. the Supreme Cotrt lBolden l, in spitc of the strenuous opposition of somc of thc bill's proponcnts to unrelaled Congressional efforts to override Supreme Court decisions in other areas by statute rather lhan b-v constitu' tional amendmenl. This argumenl simply misconstrues lhr- na' ture of the proposed amcndmcnt to section two. Certainly, Congress cannot overturn a substantive interpretation of thc Constituti<ln by the Supreme Court. Such rulings can onll' be altered under our form of government b1 constitutional amendmenl or b1'a subsequent decision bl the Court. Thus, Congress cannot alter the judicial in' terpretations in Bolden of the Fourtcenth and Fiftecnth Amendments b1' simple statute. But the . . . amendment to section two does not scek lo reverse lhe Court's constilutional in- use as engines of pgrposive and there- fore unconstitutional racial discrimina- tion. Hearings on the Voting Rights Extension Before the Subcommittee on the Constitu- tion of the Senate Judiciary Committee, 97th Cong., 2d Sess. (Feb. 25, 1982) (prepar- ed 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 testi- mony. Based on these findings, the legis- lators reasonably concluded that substan- tial amelioration of a dilution plaintiff's statutory burden of proof was warranted. Although ostensibly contradictory of the Supreme Court's holding in Bolden,zi we perceive 5 2 as merely prescribing a potion to remove the vestiges of past official dis- crimination and to ward off such discrimi- nation 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 ex- ercising its authority within the confines of the Constitution.2t Or, as the president of terprclation . . . [and] is a proper excrcise of Congress' enforcemcnt Pou'cr. S.Rcp. No. 97-417 ar 41, U.S.Code Cong. & Ad- min.Ncu's, p. 219. 2E. One commentalor postulatcs: Becausc the Iresults] test is designed to reach those clectoral schemcs that arc most likell' to permit purposeful discrimination to cscape detection, to perpetualc thc effects of past discrimination, or to facilitatc purposeful dis- crimination in the provision of public serv- ices, amcnded seclion 2 must bc regarded as u,ithin the scope of congressional power un- der the enforcement clauses of thc Fourteenth and Fifteenth Amendments. To hold other' wise the Supreme Court would have lo depart sharpll' fron precedent and adopt Justice Rehnquist's view [outlined in his dissenting opinion in Citl'ol Rome v. United States)that the congressional enforcement role is limited to providing remedies that do not reach be' yond the prohibitions of the amendments themselves as interpreted b1' the Supreme Court. 348 '?4ITEDERAL the American Bar Association opined be- fore the Senate Judiciary Committee, Under this Amendment, the Supreme Court's interpretation of the proper con- stitutional standard . . . [is] left intact. Only the section 2 statutory standard [is] changed.... Hearings on the Voting Rights Act Exten- sion Before the Subcommittee on the Con- stitution of the Senate Judiciary Commit- tee, 97th Cong., 2d Sess. (Feb. 25, L982) (prepared statement of David R. Brink at 7). Senate critics of 5 2, )ed by Senator Or- rin Hatch, raised the specter of over- breadth, arguing that the exceptional condi- tions justifying unequal application of I 5 to jurisdictions with a history of intentional discrimination did not support the exten- sion of a nationwide ban encompassing noncovered jurisdictions. Subcommittee on the Constitution of the Senate Committee on the Judiciary, 97th Cong., 2d Sess., Vot- ing Rights Act, Report on S.1992, reprirtt.- ed in S.Rep, No. 97-417 at 17G-71. Absent a record suggesting that voting discrimina- tion permeates the entire nation, the Senate Subeommittee on the Constitution main- tained that the sweeping reforms contem- plated by S 2 could not be deseribed as remedial in character, and were conse- quently beyond the scope of congressional enforcement powers. Id. aL l7L. Accord, Note, Amending Section 2 of the Voting RighLs Act of 1965, 32 Case W.Res.L.Rev. 500 (1982). Cf. Rogers r,. 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 Harlman, Racial Vote Dilution, 50 Geo.Wash.L. Rer'. at 748 (footnotes omitted). 29. Oregon t Mitchell, 400 U.S. at 131-311, 9l S.Ct. at 268-69 (majoritl opinion, authored b1 Black, J.); id. at 14447, 9l S.Ct. at 274-76 (Douglas, J., concurring in part and dissenting in part); id. ar21d17,91 S.Ct. at 310-ll (Har- lan, J., concurring in part and disscnting in parr'1; id. at 2-i3--16, 9l S.Ct. at 319-320 (Brcn- nan, White and lr,larshall, JJ., disscnting rn part and concurring in part); id. at 281-8.1. Sl S.Ct. al -143J1 r5r( \\ arl, J.. concurriit;: ir', p:rrl anC disscntir,i' ln parl). Justicc llar Irrn r ernarkt'd: l)csprtr thc lack of evidcncc. r,i spccifrc n- sl;rnic. (, it:'rriminalort airnli.;,tron <rt cf- SUPPLEMENT amendment to the Voting Rights Act that would require . . . coaered jurisdictions to abandon the specific kinds of at-large vot- ing schemes that perpetuat€ past discrimi nation."). As the Senate Judiciary Committee point- ed out, however, the S 5 analogy "over- looks the furldamental 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- 477 at 42. See Vance t,. Terrazas,444 U.S. 252, 26t66, 100 S.Ct. 540, 54748, 62 L.Ed.2d 540 (1980). Nor do the crities take into consideration the Mitchell court's dec- laration of the constitutionality of 5 2 of the Voting Rights Act amendments of 1970, striking down literacy tests and de- vices in both covered and noncovered juris- dictions. Whatever their disagreement on other issues, the members of the Court unanimously endorsed the literacy test pro- vision.2e In the final analysis, the self-limiting character of 5 2 effectively refutes the overbreadth argument. Since this statute does not impose an absolute ban on specific election practices, or allou' liability to at- tach u'ithout a finding of dilution under the totalitr of circumstances in a given case, the fear that 5 2 will precipitate a nation- wide revision of state election laws is groundless. Only a state law shown to discriminatorily impact against minority voters u'ill run afoul of S 2. feci, Congrcss could have determined that ra- cial prcjudice is prevalcnt throughout the Na- tion, and that literac-v- tests unduly lend them' selvcs lo discriminator-r- tapplication, either conscious or unconscious. This danger of violation of S 2 uas sufficient to authoriz.c the excrcise of congressional power. The danger of violatiorr of g I of the Fifteenth Amend- ment \4'as suff icicnt to atrthorizc the exercise of congrcssional pou'er urrdc'r $ 2. Id. ar 216,91 S.Cl. at 310 (llrr l:r,r J., concurring in parr arrd disstrttrr16 ilr j.. ,,('ln.rtc\ omil- red). E *r.s-:-..{ --::i;FF-- ttt MAJOR v. TREEN Clrc.r t7a F&PP.325 (l$lii) 349 Federalism concerns expounded by 5 2 opponents, see, e.g.s'!?s Cong.Rec. S'6?86 (daily ed., June 15, 1982, remarks of Sena- tor Harry Byrd); fd. at 3.651? (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 5 2 contravenes the principle of state sover- eignty enshrined in the Tenth Amendment, which precludes Congress from wielding its legislative power to impair the States' free' dom to structure integral operations in ar- eas of traditional governmental functions. National League of Cities u. Usery, 426 u.s. 833, 96 S.Ct. 2465, 49 L.Ed.zd 245 (19?6) (Fair Labor Standards Act, a Com- merce Clause enactment, held unconstitu- tional as applied to state employees)' []sery explicitly dec]ined 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 5 5 of the fourteenth amendment. Ser City of Rome t'. (Jnited States,446 U.S' at 1?8-79, 100 S.Ct. at 1562. ln South Ca.rolina t. Katzenbacft, the Court ruled that Congress may' as against the reserved powers of the state, utilize any rational means to implement the Fif- teenth Amendment. Justice Marshall sub- sequently rejected a federalism argument predicated on Usery, explaining that: . . . principles of federalism that might otherwise be an obstacle to congressional authoritl' are necessarily overridden by the po*'er to enforce the Civil War Amendmenls "by appropriate legisla- tion." Those Amendmenls were specifi- cally designed as an expansion of federal 30. "Gerrymandering" refers to "discriminatory districting which operates unfairll'to inflatc the political irrength of one g.,rt,p and deflatc that bf another." R. Di*on, The Court, thc Peoplc and "One Man, One Vote," in Reapportionmcnl in the 1970s 7 (N. Polsby, ed. l97l) Dr' Eng- strom defines the "equipopulous gerrvmandcr" as "districting that satisfies the one person, onc vote requirement yet is discriminalorl tou'ard an identlfiable group of volers." Engslrom, Thc Supremc Court and Equipopulous Gcrrvman' deiing: A Remaining Obstacle in thc Qucst for Fair and Effective Represcntation' 1976 Atr/" power snd 8n intrusion on stat€ sover- eignty. Applying this principle, we hold that Congress had the authority to regu' late state and local voting through the, provisions of the Voting Rights Act.' National League of Cities, then, pro' vides no reason to depart from our deci- " sion in South Carolina a. Katzenbach that "the Fifteenth Amendment super- sedes contrary exertions of state power," ... and that the Aet is an appropriate means for carrying out Congress' consti- tutional responsibilities. . . . City of Rome u. [Jnited States,446 U.S. at l?9-80, i00 S.Ct. at 1562-63 (citations and footnotes omitted). Aeeord, Fitzpatrick u. Bitzer, 42? U.S. 445, 96 S.Ct. 2666, 49 L.Ed.zd 614 (19?6) (5 5 of the Fourteenth Amendment overcomes state Eleventh Amendment immunity). CitY of Rome therefore teaches that the Tenth Amend- ment does not constriet eongressional pow- er to enforce the Reconstruction amend- ments by appropriate legislation. See Ho- dat r'. Virginia Surface Mining & Recla' mation Ass'n, 452 U.S. 264, 287 n. 28, 101 S.Ct. 2352. 2366 n. 28, 69 L.Ed.2d 1 (1981) (dicta). Given our conclusion that 5 2 is an appropriate expression of congressional en- forcement.authority, we are persuaded that this measure does not work an unconstittt- tional abrogation of powers allocated to the states b1' the Tenth Amendnrent. B. Applicatiort o.f Acl 20. t8l Congressional districls mal. be equal or, as here, subsLantialll' equal in population, .v-et fail to secure fair and effec- tive representation for all voters. Through the cartographic technique known as gerry- mandering,s'r a politically dominant group is Statc L.J. 277,278 n. 5. Justicc Slevens recently warncd that slavish judicia) adhcrence to ihe goal of pcrfect population equalilf is-" perfectly ionrpatible with gerrymandering of the worst sort."' K[fcher l'. Dag4ett, - U.S. -, 103 S.Ct. 2653, 2671, 77 L.Ed.2d 133 (1983) (Stevens, J., concurring) (quotirtg lront Wclls t Rockelel- Ier, 394 U.S. 5'12, 551, 89 S.Ct. 1234,22 L'Ed'2d -5-j5 (1969) (Harlan, J., disscnling). Accord, id' t03 S.Ct. at 2863 (\\'hirc, J., disscnting, joined b1 Burgcr, C.J., and Rchnquist and Pou'ell, JJ.); id' al 2E6'r (Poucll, J.. dtssctltLngl l\ -- FEDERAL SUPPLEMENT350 574 able to manipulate district lines withtr the constraints of Article I, 5 2, so as "to mini- mize or cancel out the veting strength of racial or political elements of the voting population." Fortson u. Dorseg, 379 U.S. 433, 439, 85 S.Ct. 498, 501, 13 L.Ed.zd 401 (1965). See Gaffney o. Cummings, 412 u.s. ?35, 93 S.Cr. 232r, 37 L.Ed.zd 298 (1973); White u. Regester,4l2 U.S. 755, 93 s.ct. 2332, 37 L.Ed.2d 314 (1973). The amended 5 2, Congress' response to the continuing concern over the extent of mi- nority participation in the electoral process, provides a formidable vehicle for redress- ing vote dilution claims. Pursuant to amended 5 2, a complainant has the option of either proving a discrimi- natory purpose in the adoption or mainte- nance of an electoral structure or practice, or demonstrating, "based on the totality of circumstances," that the structure or prac- tice results in a dilution of minority voting power. 42 U.S.C. S 1973b. See City of Lockhart a. United States, - U.S. -,103 S.Ct. 998, 1004, 74 L.Ed.zd 863 (1983) (Marshall, J., concurring); Buchanan u. City of Jackson; Rybicki a. State Board of Elections. Listed in the Senate Report are several objective factors, drawn from White o. Regester and Zimmer a. McKeith- en, 485 F.2d 1297 (5th Cir.1973) (en banc), affd on other grounds sub nom. East Carroll Parish School Board a. Marsh.all., 424 U.S. 636, 96 S.Ct. 1083, 4t L.Ed.zd 296 (1975) (per curiam), which a court may eval- uate in applying 5 2's "totality of circum- stances" test: i. 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 regis- ter, to vote, or otherwise to participate in the democratic process; 2. the extent to which voting in the elections of the state or political subdivi- sion is racially polarized; 3. the extent to which the state or political subdivision has used unusually large election districts, majority vote re- quirements, anti-single shot provisions, or' ,'tner voting practices or procedures tir:;l ma1' enhance that opportunity for diserimination against the minoiity group; 4. if there is a eandidate slating proc- ess, whether the members of the minori- ty group have been denied access to that process; 5, the extent to which members of the minority group in the state or politi- cal subdivision bear the effects of dis- crimination 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 charaeterized by overt or subtle ra- cial appeals; 7. the extent to which members of the minority group have been elected to public office in the jurisdiction. Additional factors that in some cases have had probative value as part of plain- tiffs' 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 pro- cedure 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, U.S.Code Cong. & Admin.News, p. 207 (footnotes omitted). No particular number or arrangement of factors need be proved as a prerequisite to recovery', nor is a plaintiff lirfiit€d to evi- dence that fits within lhe Zimmer-l{hite analytic framework. To the extent that the enumerated factors are not factually relevant, they may be replaced or substitut- ed by other, more meaningful factors. Mindful of Zimmer 's command that these indicia of discrimination are neither exclu- slv( Cor tl n at p t t q b a t s I r td. t cur sat al 52 nol act of s.( imr pr( go' del cri: ac( I in "Io 31. e c p s T 5 9 e f i 5 s I I r i -&. sive nor controlling,\the Senate I l,l 35r C,ommittee cautioned: The-eourts ordinarily have not used these factors, nor does the Committee intcnd them to be used, as a mechanical "point counting" device. The failure of plaintiff to establish any particular fac- tor, is not rebuttal evidence of non-dilu- tion. Rather, the provision [5 2] re- quires the court's overall judgment, based on the totality of circumstanees and guided by those relevant faetors in the particular case, of whether the voting strength of minoritv voters is, in the language of Fortson and Barnr.s, mini- mized or canceled out. Id. at 29 n. 118. l9l Upon review of the totality of cir' cumstances in the instant case, the court is satisfied that the plaintiffs have made out a prima facie case of vote dilution under S 2. Evidence of "past discrimination can- not, in the manner of original sin, condemn action that is not in itself unlawful," Cily of Mobile a. Bolden, 446 U.S. at 74, 100 S.Ct. at 1503, but is relevant insofar as it impacts adversely on a minoritv groupr's present opportunities to participate in government. We are persuaded that tht' deleterious repercussions of historical dis- crimination persist in hindering the lrolitical access of minorities in Orleans Parish.:rr I10l As the Supreme Court commented in Rogers u. Lodge, 102 S.Ct. at 3279, "[v]oting along racial lines allovrs those 31. A causal ncxus bctrveen thc disparalc socir> economic status o[ blacks arising frorll past dis' criminalion and a dcpressed levcl o[ nlinoritt political participation need not bc cstablishcd. S.Rep. No. 97417 at 29 n. ll4 (citing V/hire t. Regester and Kirkse."' r'. Board ol Supervisors, 554 F.2d 139 (sth Cir.), cert. denied, 131 l.S. 968, 98 S.Ct. 512, 54 L.Ed.2d 454 (1977)). "ln' equalitl of access is an inferencc u'hich florvs from the existence of economic and cducatiorral inequalities." Kirksey v. Board ol Supervisrtrs, 554 F.2d at ,45. Plaintiffs havc ncvcrlhclcss succeedcd in demonstrating that thc contcnlP(r' rarv effccts of past discrimination furnish al lcast a partial cxplanalion for thc lori' blzrik rcgistration and rotint: apparcnt in Or]calls Par'- ish. MAJOR v. TREEN Clre m 371 F.tupp. 323 (19t3) Judiciary elected to ignore black interests without fear of political consequences, and without bloe voting the minority candidates would , not lose eleetions solely because of their' race." The importance of polarized voting cannot be underestimated, for if it does not r exist, the minority voter "has little reason to complain...." United Jewish Organi- zation o. Carey,430 U.S. 144, 166 n.24,97 S.Ct. 996, 1010 n. 24, 5r L.Ed.zd 229 (19771. See Lodgc u. Burton, 639 F.2d 1358 (sth Cir.1981), affd sub nom. Rogers u. Lodge, 458 U.S. 613, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1981). A consistently high degree of electoral polarization in Orleans Parish was proven through both statistical and anecdo- tal evidence. Particularly as enhanced by lnuisiana's majority vote requirement,s2 ra- cial bloc voting substantially impairs the abilitv of lrlack voters in this parish to treconrt, fullv involved in the democratie process. That several black candidates, among thenr Ma1'or Morial, have won office in Orleans Parish does not foreclose a find- ing of dilution. Scc S.Rep. No. 9?-417 at 2f) n. llir; Campbcll t'. Gadsen County Sthool Btnrd; Zitnnter u. McKeithen. Cr-rnsidering the parish's 557, black popula- tion, the 15','i success rate of black candi- dates at the polls is substantially lower than might be anticipated absent such im- pedin.rents to black voting and registration as the lingering ranrifications of historic disenfranchisement conjoined with past and present disparities in education, income, emplovment and housing. Professor Hen- 32. Scvcrclr criticizcd for its tendencl- to sub- mcrgc racial minorilics, Zbnmer v. McKeithen, thc nrajoritv \'(rtc requircmcnt: . .. rcquircs a run-off election between the nr,o candidatcs u'ith the mosl voles if no can- didatc rcccivcs a majoritf in the first election. Thc run-of[ allou's rvhite votcrs who scattered tlrcir votcs among various uhite candidates in thc frrst clcclior.r t() consolidate lheir vote in thc sccorrd yr dcfcat a minority candidate who rcccive'd a pluralitr. of thc votc in the first clccl iott. Notc, Racial Votc Dilution in Multimember Dis- tricrs: Thc Constitutional Standard after Wash- irtt!t,,rt t. [)uvi.;,76IVlich.L.Rer'. 694, 697 (1978). For r,t r i()u\ r'c;rs()ns, thc inabilitt' of minorities to lrirrrr L(,illrlions ()r l() othcr\\isc in[luence olhcr li',rr.- cir:t' tr, nolltrization is exacerbated hr tlr, " \,,1! I ( qLllf Cll]cIll 352 derson's analysis of voting patterns in Or- leans Parish shows tlut the victories of blacks in municipal, parish and state repre- sentative or senate contests can be ascribed in major part to racial bloc voting and some cross{ver voting by a unique enclave of liberal whites. If Act 20's sundering of the black populace of New Orleans were al- lowed to stand, the effective independent impact of black voters would be unfairly and illegally minimized. Ill, 12] A tenuous state policy support- ive of a particular districting scheme is probative of the question of the fairness or the unfairness of that seheme's impaet on minority voters. S.Rep. No. 97-417 at 29. Departures from the normal procedural se- quence, or the specific chain of events lead- ing up to a particular legislative decision, bear on the weight to be accorded the state policy underlying a particular voting sys- tem or practice. See id. See al.so Karcher a. Daggett, - U.S. -, 103 S.Cr. 2653, 77 L.Ed.2d 133 (1983)(Stevens, J., concurring). After extensive public hearings and eonsul- tations with staff counsel, committees of both houses of the legislature formulated a reapportionment poliey tailored to maxim- ize black voting strength within one of Louisiana's eight congressional districLs. To implement this benign, raee-conscious policy, the legislature, through its joint committee, promulgated a set of neutral reapportionment. criteria which culminated in the preparation and bicanreral approval of the Nunez Plan.3:l The l,ouisiana Legislature's policy, which would have maintained New Orleans' black 33. It is well-establishcd that a lcgislative bod,r' may consider race in drau'ing district lines, so long as it does not discriminate invidiously or contravene the one person,/onc votc precept. See Fullilove v. Klutznick, 448 U.S. at 483, 100 S.Ct. at 2777 ("... a state may employ racial criteria that are reasonably necessary lo assure compliance with federal voting rights legisla' lion, even though thc statc action does not entail thc remedy of a constitutional violation"); Uair- ed Jewish Organizations ol Willianrsburgh, lnc. v. Carey; Wyche v. Madison Parbh Police Jury, 635 F.2d ll5l (5th Cir.l98l); Marshall v. Ed- wards, 582 F.2d 927 (Sth Cir.l978), cert. denied, 442 U.S. 9O9, 99 S.Cr. 2820, 6t L.Ed.zd 274 (1t79). ln Carey, the Coun made it clear that . 574 FEDERAL SUPPLEMENT L community within one district, and iirtual- Iy all neutral apportionment guidelines, were abruptly discarded in the face of the Governor's veto threat. No cohesive goals replaeed 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 con- vened a private meeting to seek a solution which would satisfy the Governor and the Jefferson Parish forces. Because all were aware that the eonflicting objectives of the Governor and black legislators with respect to a black majority district could not be harmonized, the latter were deliberately ex- cluded from the final decision-making proc- ess. llSl Physical evidence of racial gerry- mandering may itself furnish strong, objec- tive proof of vote dilution. Rybicki o. State Board of Elections; Adams, A Mod- el State Reapportionment Process: The Continuing Quest for "Fair and Effective Representation," 14 Harv.J.I-eg. 825 (1977). Minoritv voting strength may be dissipated through one of two familiar gerrymander- ing techniques: "stacking," or the overcon- centration of members of a specific group in numbers greatly in excess of the per- centage required to exercise a meaningful choicc at the ballot box, or "cracking," the division of a cohesive population concentra- tion. Karch.er t Daggett, 103 S.Ct. "t2672n. 13 (Stevens, J., eoncurring\; Neuett a. Srdes, 571 F.2d at 219; R. Momill, Political Redistricting and Geographic Theory at 14- 15, 19-20 (1981). See also United Jeutish legislaturcs ma]' cnSage in racialll' proponion- ate rcdistricting: "[C]ourts have [no] constitutional warranl to invalidate a state plan, otherwise within toler- able yrcpulation limits, becau;e it undertakes, not to minimizc or eliminate the political strength of any group or party, but to recog- nizc il and, through districting, provide a rough sort of proportional representation in thc legislativc halls of the State." 430 U.S. ar 168, 97 S.Cr. al l0ll (quoting lrom Gaflnel' v. Cummings,4l2 U.S. at 752, 93 S.Ct. at 2331). See Notc, Group Reprcsentation and Race-Conscious Apportionnrent: Thr Rolcs o{ States and thc Fedcral Courts, 9l Flan.L.Rer. 1847 ( 1978). ( I p c I ;'r' MAJOR v. TREEN 353 . ' Cttcu5T{FSuPP.325 (llE3) organizatiofts, Inc. o. carey,430 U.S. at 968, 98 s.ct. 512, 54 L.Ed.2d 454 (L9771 iS8, SZ S.Ct. a; 1006. ]Yhen a redistrictin g (quoting from Robinson o. Comrnission- pian "*ptoys the lattd bchnique in a ra- er,s Court,50S F.2d 674,679 (Sth Cir.l974). IJirv por".ired environment, the result is see also carstens u' Lamm, 543 F'Supp' predictabl6: G8, 82 (D.Colo.1982) (three-judge court) Likeamultimemberplan,[asingle-mem- ("... a redistricting plan ... should not ber district plan which fractures a geo- fracture a natural racial or ethnic commu- graphically concentrated minority voting nity. . . . "). populationl ... tends to dilute the voting strength of the minority' In Robirxon u' Il4l Act 20's jagged line dissects a commissioner's court, supra, a panel large concentrated community of black vot- of this court noted that ers residing in orleans Parish, dispersing "The most crucial and precise instru- that community into the First and second ment of the . .. denial of the black Congressional Distriets.sr With unerring minority's equal access to political par- precision' this line slices through the City's ticipation, however, remains the gerry- traditional political subunit' the ward' in a mander of precincL lines so as to frag- raciall,v* selective manner, leaving intact ment what could otherwise be a cohe- predominantlv white wards while carving siveminorityvotingcommunity...'upthosedensell'populatedbyblacks.Ho. This dismemberment of the black vot- mogeneous black precincts are separated; ing community .. . [may have] the . . . white precincts are not. Raeial divisions efiect of debilitating the organization have been preserved at the expense of par- and deereasing the participation of ish boundaries't; and respect for the integ- black voters." ritv of a natural geographic barrier, the Kirksey u. Board of Supert,isors, il54 F,2d Mississippi River'.|6 Discordant communi- 1g9, 14:9 (Sth Cir.), ceri. deniecl, 434 U.S. ties of interest, those of New Orleans' old- 34. Expert testimonl, of Dr. Hendcrsorr cstablish- 35. Anothcr tron-collstitutiollal rcstraint imposed es that these districts do not complv u,ith the on carrographcrs is thc principlc that district g"n"rutly acccpted reapportiotrnlcrit rcquirc- litlcs Il.tust bc drastr to coitrcidc u'ith govern- menl o[ compaclncss. Shapc, a subc()tllp()r'rcr)l lr]cntal Llnits such as tlrc paris]r, u'ard or pre- of thar requircmcnt, scc Ka'rcher r. Dag3itr, lO3 citrct. Sec R' l\'l.rrill, P.lirical Rcdistricting and s.ct.at2672-73 (Stcvcns, J., concurring), is onc Gcographic Thcon' at 25 (" usc of political crite.ion b1. u'hich diri.i.r .ontorrs"tnar bc ctltilics [crccts] ' a signi[icanl barrier lo gcr- judgcd in a gcrrl-mandcring casc. ltl.; L:r'rg. rvrr-randering $hcthcr lor racial ol parlisan po- strom, Thc Supreme Court and F,quipopulous Iitical rcas.rrs, si.cc il prcrclrts stringing togeth- Gerr.v-mander 1976, Ariz.sl.L.:. ur iao; it".,.k, cI prccincts of a pa;'ticulat charactcr out o[ Measuring Co,,.,pr.tr...'us a Rcquir.:rncnr <rf dispararc political u.its") "lndiscrimrnatc dis- Legislative Apportionmcnt,5 Mid$,cst J.lbli.Sci. tricting, $ithoul an1 rcgirrd fir| political subdi\.i- 70,71 (1971). Justicc Slcr,cns nonclhclcss cau' siotr ... lincs, rnal bc litrlc Inorc llratl an opcn tions against cxclusive reliancc upon odd or invitatron to parlisall gcl'rvmetldcring." Reyn' tortured configurations. - U.S. 21 - p. 15, olds l. Sints,377 U.S.533,.578_79,84 S.Ct. 1362, l03 s.cr. at 2672 n. 15. As Dr. Engslronr poinls 1390, l2 L.Ed.2d -506 (1964); Anrcricarr Bar As- out, ,.preoccuparion ,r,iih ,hop"."n.,uv .in.,pl.. sociatio't Special C.n.rmittcc on Elcction La*' ,confusc form u,ith [unction,'as rclativell svnl' and Vorer I',articipation, congressional Redis- metrical, compact, districts may effcctivcll di. tricting ar l2 (1981) (Unncccssar! disruption of lutc a group's voting strenglh...." 1976 Ariz.st. thesc utrits not onll "undcrmines the abilitl of L.J. al 2g0 (quotbtg frorn\. Dixon, Dcmocraric constituencies to ()rgani7,e cffecti'ell but also Representation:Reapportionmenlinl-au'and-..increasesthelikclihoodofr,otcrconfusion Politics 459 (1968)). While acknou'ledging this regarding other clcciions bast-d on political sub- concern, prof cssor trlorJl is of rhe opii.ion that division geographics."). a compactness measure providcs an efficaciou-s ' defense against ger'i,Ina"ring. R. Morrill, 36. A plan's divergct.tcc fr.m natural ph]'sical political Redistricting and Geogriphic Theorl'al features, uhich tend t. injcct somc rcgularitf in 21. It is important to notc, ho'*'e.'"r, that com' district configurations, ma1, abscnt a legitimate paclness is riot dcmanded bl fedcral 1arr,. _ Car- justification such as adhc'rcncc to thc ont' 'slens r. l.antttr: Skrtlrtick t'. State Elcctoral Bd, person'/onc volc conccpt' r'iolatc thc compacl- 336F.Supp.63c(N.D.IIl.l97l)(thrcc.judgcnessrequirement'sectcstimon\'ofDr.Gordon courl). Hendcrson' Record' Vol l at 10l-06' Here' thc i:.__-. 354 t er, urban core &nd its surroundlng subur- ban neighborhoods, are joined.sT Drs. Hen- derson and Engstrotn both testified that when coupled with the phenomenon of ra- cially polarized voting, this combination of fectors operated to minimize, eancel or di- lute 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 popula- tion within one district or dividing that population into two or more districts so that it exerts a substantial influence in each.38 We are eonvinced that in the present case, the division of the black popu- lation was not designed to enhance the effectiveness of the black electorate, nor is it likely to occasion such. Mississippi is significant insofar as il affccts p€rsons residing on either bank. Orleans Par- ish's inner city blacks, separated from Jefferson Parish by the river, possess far differenl con- ccrns from lhe suburban whites who du,ell in the latter. 37. By wa1'of explanation of the significance of this apportionment criterion, Morrill observes: Citizens vote, in part, according to their identification with various interests, for exam- ple, religious values, occupation, class, or ru- ral or urban orientation. There is a slrong basis in arguing that "effective representalion" or influence on lhe outcome is enhanced b1' grouping of like interests together. ... This is constitutionally required only r.r,ith respect to race. The geographer will also obsene that districts which correspond somewhal lo nodal regions, a core urban arca and its economic or cultural hinderland united by lransporta- tion and comntunications, will have a greater sense of unily, au'areness of common prob- lems, and, perhaps, pcrticipation than dis- tricts which arbitrarily combine disparate ar- eas and ignore patterns of regional identit;- and loyalty. R. Morrill, Political Redistricting and Geograph- ic Theory at 23. *e abo Busbee v. Smith, 549 F.Supp. 494 (D.D.C.1982) (three-judge court), afl'd mem., - U.S. -, 103 S.Ct. 809, 74 L.Ed.2d l0l0 (1983); Carstens v. Lamm, (three- judge court) (preservation of entire cily as one district facilitated voter identity); again, this criterion is nol prescribed by federal statutory or constitutional lau. See id 3t. &e, eg., kamon r. Upham,536 F.Supp. 931, 949 (E.D.Ter.) (three-judge courr) rct'd on other grounds,45f. U.S. 37, 102 S.Ci. 1518, 7l L.Ed.2d 574 FEDERAL SUPPLEMENT Application of amended 5 2'B ,"rrsult8" test to the aggregate of the facti addueed at trial, including louisiana's history of discrimination and the impaet of that histo ry on the present ability of blacks in Or- leans Parish to join in the political process, the vestiges of discrimination which take the form of a marked disparity in the socie eeonomic 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 voting bloc, preponderates in favor of the plaintiffs. Circumstantial evidence that race played a role in the confection of Act 725 (1982) ("... [t]here is no agreement on whether thc political interests of a minority group are best maximized by an overwhelming majority in a single district, are majorities in more than onc district or a substantial propor- tion of the voters in a number of districts"); United States v. Board ol Supervbors ol Fonest County, 571 F.2d 951, 956 and n. l0 (5th Cir. 1978) (citing various commentators). Compare Jordan v. lUinter,54l F.Supp. 1t35, ll43 (N.D. Miss.l982) (three-judge court), vacated and re- manded lor further consideration in lighr o/ amended S 2, - U.S. -, 103 S.Ct. 2077,77 L.Ed.2d 291 (1983) (where legislative preference for two minorill districts with at least 4oolo population expressed, court found no constitu- tional or federal statutory bar thereto) with Kirkx:.7- t,. Board ol Supen'isors,554 F.2d at 150 (emphasis in thc original) ("Where the cohesive black voting strength is fragmented among dis- lricts, [even] thc presence of districts with bare black population majorities not only does nol necessarily preclude dilution but ... may actu- ally enhancc thc possibilitl' of continued minor- ity political impotence."); Hartman, Racial Vote Dilution and Separation of Powers, 50 Geo. Wash.L.Rer'. at 695 ("... the argument that the position of the minority is necessarily enhanced by an opportunity for "coalition building" [through a districting plan $rat disperses their votes among several districts] is disingenuous, to say the least, when made in reference to a locale with wellcstablished patlerns of racial division and racial bloc voting where the minor' ity has systematically been submerged and ig- nored."); Note, Constitutional Challenges to Gerrymanders, 45 U.Chi.L.Rer'. 8,1.1, 846 (1978) (splitting a voting group amont scrtral districts may have thc effect of dilurrng rirc political power of that group). .!; .:r" * \rt ,i.. . MAJOR v. TREEN Clre rr 5?l FSuip.32s (rlt3) 20 also figures in thq eourt's calculus, al- showing. Relianee on New Orleans' tradi- though we have not lngaged in the intent tion of dual congressional representation analysis permitted by S z.ae Based on the can no longer be juslified in light of the totality ef relevant circumstances, there- City's substantial deeline in population. ,/ fore, the court concludes that the contours Nor is there eredible demographic evidence of the First and Second Congressional Dis- that the blaek population of either the First tricts, as established by Act 20, operate to or Second Districts will increase to a signif- I deny or abridge the rights of minority vot- icant degree over the next decade. Accord- ers, who are accorded less opportunity than ingly, the court is of the opinion that plain- other members of the electorate to partici- tiffs are entitled to judgment on their vot- pate in the political process and to elect ing dilution claim. representatives of their choice. Defendants' showing that political moti- vations were the primary impetus behind the configuration of the First and Second Districts does not provide persuasive rebut- tal 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 a. Cummings, 412 U.S. at ?53, 93 S.Ct. at 2331; In re: Penn.syluania Congressional Districts Reapportiort' ment Cases, 567 F.Supp. 1507 at 1529 (M.D.Pa.1982), affd mem. sub nom. Si' mon a. Dauis, _ LI.S. _, 108 S.Ct. 3564, 77 L.Ed.2d 1405 (1983). The protec- tion of existing relationships among incum- bents and their constituents, and the bene- fits accruing to the state from the seniority its delegation may have achieved in Con- gress, are pragmatic considerations which often figure prominently in the drawing of congressional districts. These considera- tions are not talismanic, however, and may not serve to protect incumbents bf impos- ing an electoral scheme which splinters a geographicalll' concentrated black populace within a racially polarized parish. thus min- imizing the black citizenry's electoral par' ticipation. Nor do other factors invoked b1' defend- ants overcome plaintiffs' prima facie 39. Given our conclusion that Act 20 results in a dilution of black voting strength, wc need not drau' the ultimatc infcrence of purposcful dis' crimination from the composite of factors hcrc' tofore outlined. Thc court has neverlheless tak- en into account, as but one aspect of the totalitl' o[ circumstances, lhe evidence that opposition to the creation of majoritl' black district u'as responsible, to a significanl extcnl, for thc dc- C. Remedy Having determined that Act 20 does not, in respect to the First and Second Congres- sional Districts, comply with the mandate of amended 5 2 of the Voting Rights Act of 1965, judgment will be entered declaring Act 20 violative of federal law and enjoin' ing the defendanls from conducting elec- tions pursuant to its terms. Recognizing that "state legislatures have 'primary juris- diction' over legislative reapportionment," White t Weiser,4i2 U.S. 783, ?95, 93 S.Ct. 2348, 2354,37 L.Ed.2d 335 (1973), we shall temporarill'defer further action in order to provide the Louisiana l,egislature with a reasonable opportunity to act within feder- al statutorl' and constitutional limits and enact a valid new plan for the election of members to the United States House of Representatives.ro Once a court declares an existing legislative reapportionment scheme unlawful, it is "appropriate, when- ever practicable, to afford a reasonable op- portunitl' for the legislature to nteet consti- tutional [or federal statutory] requirement.s by adopting a substitute measure rather than for the federal court to devise and order into effect its own plan." Wise u. Lipscomb,437 tl.S. 535, 540, 98 S.Ct. 2493, 219i, 5i L.Ed.2d 411 (1978). See also McDaniel t Sanchez, 452 U.S. 130, 101 fcat of thc Ngnez- Plan and the substitution of Act 20. r{). Dclcndants urged this altcrnative during oral argument, rcquesting that in the event of Act 20's invalidation, lhc courl foregt, thc imposi- tion of a judicialll-constructcd plar', and pcrnrit lhe legrslaturc to attcmpl tht confectiotl of a neu pl;rrr. t*--- 356 5?4 FEDERAL S.Ct. 2224,68 L.Ed.2d ?24 (1981); Connor a. Finch,431 U.S. 407,97 S.Ct. 1828, 52 L.Ed.zd 465 (1977); Flateau o. Anderson, 53? F.Supp. 257 (S.D.N.Y.1982) (three- judge court), cert. d.ism.,458 U.S. 1123, 103 S.Ct. 5, 73 L.Ed.zd 1394 (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. Should the legislature, or the Governor, choose not to act, we shall acquit our re- sponsibility to develop and implement a re- medial plan. Accordingly, defendants are invited to present to this court, on or be- SUPPLEMENT fore January 31, 1984, a duly-enacted legis- lative 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 appropri- ate plan. Consideration of plaintiffs' re- quest 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 eonsistent with this memorandum opinion. IT IS SO ORDERED. &* ,--- l**____ IUATOR v. TREEN CIle qr lil F.Srpp. 325 (19&l) APPENDIX A /-/L E o ! a d l 4 0 o o d 358 574 FEDERAL SUPPLEMETIT r APPENDIX B 9. o e axx O-9 o E oo&ctooF QO6+ It t'/'ii rt -l ;1 kt'*: .MAIOR v. IREEN Crtc lt 3il Fsrpp. 325 (t9s3) APPENDIX C I l.I, I .i:E / - l:-.-. i':J i