Major v. Treen Court Opinion

    .;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
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hm
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uint
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$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.'

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.*.

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



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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



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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