Reno v. Bossier Parish School Board Jurisdictional Statement

    J i t  %  g u t p r r m r  ( t t n u r t  n f  %  ! « » * &

O c t o b e r  T e r m . 1 9 9 5

No.

J a n e t  R e n o , A t t o r n e y  G e n e r a l  o f  t h e  

U n i t e d  S t a t e s , a p e e e e a n t

B o s s i e r  P a r i s h  S c i i o o i . B o a r d

JURISDICTIONAL STATEMENT

OPINION BELOW

The opinion of the three-judge district court (App. la- 
65a) is reported at 907 F. Supp. 4. .

JURISDICTION
|.-r d i s t r i c t  c o u r t  w a s  e n -T l i o  i i u l t i m o n l  o l  lilt'  H in 'C  i l II



QUESTIONS PRESENTED

1. Whether a district court assessing a covered juris­
diction's purpose under Section 5 of the Voting Rights 
Act of 1965, 42 U.S.C. 1972c, may disregard factors this 
Court has held are relevant to proof of discriminatory 
purpose on the ground that such evidence is also relevant 
to show vote dilution under Section 2, 42 U.S.C. 1973.

2. Whether the district court clearly erred in linding 
no discriminatory purpose on the basis of the factors it 
considered in this case,

3. Whether a voting change that clearly violates Sec­
tion 2 of the Voting Rights Act is entitled to preclearance 
under Section 5 of the Act.

(i)





TABLE OK CONTENTS

Opinion Below 
.lurisdirt inn

Statutory and regulatory provisions involved 
Stall •nient

Tlio ipiestinns presented are substantial 
Conclusion

Page

1
1
1
2

13

28

TAltEE OK AUTHORITIES
Cases:

Arizona v. Reno, 887 F .  Supp. 318 (D.D.C. 1 0 95) ,  
appeal dismissed, No. 95-299 (Mar. 1, 1000) 

Rcer V. United Staters, 125 U.S. 130 (1970)
Rot) Janets I ’nir. v. United Staten, 101 U S  571 

(1983)
Brown V. Hoard o f Edue., 317 U.S. 183 (1951)  
Barbee v. Smith, 019 F .  Supp. 194 (P .D .C. 1982) ,  

afT’d, 459 U.S. 1160 (1983)
Chitsam v. Roemer, 501 U.S. 380 (1991)
Citii o f Lockhart v. United States, 400 U S  125

(1 9 8 3 )  .........................................................
City o f Mobile v. Roldan, 110 U.S. 55 (1980)

City of Pleasant Grove v. United States:

18
2 , 24

20
7

15
25

2
3 , 13,
15, 25

508 F. Supp. 1455 (D.D.C. 1983)  1 5
479 U.S. 402 (1 9 8 7 )  1r, 22

City of Port Arthur v. United States, 517 I-'. Supp 
987 (D.D.C. 1981),  air’d, 459 U.S. 159 (1 9 8 2 )  1 5 , 17

City of Rome v. United- States, 410 U S  150
(1980)  .................................................... .................' ’ ' 2

Columbus Rd. of Edue. v. Pcnic.k, 413 U.S. 119

(III)

\



Cases Continued:
IV

Page

E E O C  v. Ethan Alim . Inc.. II F.3d 116 (2d Cir.
I (l!) I I ..................  22

I i itmi' \ tlossiii I'm mil School lid., 240  F. Supp.
TOP |U I), La. 1066) .  air’d, 370 F.2d 8-17 (5th
C ir .) .  coil, denied, 388 U.S. Oil (1967)  .............. 7

l.onisiava v. Cniteil States,  380 II.S. 146 (1965)  7
Maine \ T u  rn,  57 1 F. Snpp. 325 ( E .P .  I * .  1983) 7
.1 Idler  v. Johnson.  115 S. Cl 2175 (1995)  2, 18, 10
I'm snmiil  Administratoi  v. Fecneii.  442 II.S. 256

(1070)  .................  1 6 .17
I’nlhmtii-Stanilai<1 v. S a in t ,  1,66 II.S. 273 (1982)  16, 19
Roams  v. Lollin'. 158 I'.S. 613 (1 9 8 2 )  13, 15, 16, 17
St. Min n's Honor C enter  V. Hicks. 113 S. Ct. 2712

(I OOP) ................................  22
Slime  v. Rena, 113 S. Ct. 2816 (1 9 9 3 )  ...................  22
South Carolina v. Kntzrnbach,  383 U.S. 301

(1966)  ................................... ........................  11
South in  st Merrha mlising Carp.  v. N L R B ,  53 F.3d

1331 (D C. Cir. 1 0 0 5 ) .............................    22
T hornburg  v. Hinnies. 478 U.S. 30 ( 1 9 8 6 ) ...............3, 24, 25
I 'Hinge of Arlington Heights  v. Metropolitan H ous­

ing Dee. Coni..  420 U.S. 252  ( 1 9 7 7 ) .......  13, 14, 15, 16,
1 7 ,21

Washington  V. Paris ,  126 U.S. 229 (19 7 6 )  ...............  16
White v. Regester.  112 U.S. 755 (1 9 7 3 )  .....................  25

Constilul inn, statutes and regulations:

I l.S. Const.:
Amend. XIII      6
Amend. X I V  (Equal Protection Clause) ............  3

Voting Rights Act Amendments of 1982, Pub. L.
No. 07-205, § 3 ,  06 Stat.  131 ............ .. ................ .. 3

Voting Rights Act of 1965, 42 IJ.S.C. 1973 et seq
§ 2, 12 U.S.C. 1973 ......................passim
§ 2 ( a ) ,  42 U.S.C. 1 9 7 3 ( a )  ........................... .. 3 , 2 5
§ 2 ( h ) ,  42 U.S.C. 1 973(b)  .................... 3 , 2 5
§ 4, 12 U.S.C. 1073b ................................................  2 , 3
§ 1 (a )  ( 8 ) ,  42 U.S.C. 10 7 3 b (a )  ( 8 )  .............  25
§ 5, 12 U.S.C. 1073c   passim



V

Statutes and regulations Continued: Page

42 U SX'. 1071 <c)
28 C .F .P .  PI. 51 

Section 51.2  
Section 51 .1 3 (e )  
Section 5 1 .5 1(a)
Seel ion 51.55(a)  
Section 51.55(b)  (2) 
Section 51.56(c)  (1) 
Sections 51.57-51.01 
Section 51.58(b)  (1) 
Section 51.58(b) ( I ) 
Aim*.

i i 
4 
2 
2 
4 
4

5, 12. 14, 23, 25  
4 , 2 6

3
3
3
3

Miscellaneous:

50 Fed. Peg. ( 1 9 8 5 ) :
p. 10,122
p. 10,131

3, 4, 26  
4 , 2 6

[ ’nginsiil Changes tn Regulations Governing  ,SYr- 
tinii r, of the Voting Rights A r t :  Oversight H e a r ­
ings Refore  the Subeomm. on Civil mid Constitu­
tional Rights of  the House Comm, on the Jiuliri-

S. Pep. No. 417, 97th Cong.. 2d Sess. (1 0 8 2 )  3 , 4 , 2 3 ,
24, 25

Subcommittee on Civil and Constitutional Rights of 
the House Comm, on the Judiciary, 001b Cong.,
2d Sess., F oting-Rights A r t :  Proimsrd Seetion  .7 
Regulations  (Comm. Print 1986 Ser. No. 0)  4

aril. 09th Cong., 1st Sess. (1985) 26



i l i t  t l j r  § t t p r r m r  { f ln u r t  n f  l l j r  I t n t t r h  § t a l r n

October T erm, 1995

No.

J anei Reno, A i iorney G eneral or hie 
United S lates, appellant

r.

Do s s i e r  P ari sh  S c i i o o i  Ho a r d

ON .1I’I'FA I. FRO.1/ 77//.' U M T F D  STATUS DISTRICT COURT 
FOR TDK DISTRII T OF COI.VMIII \

lUl i lSim LION A I, STATEMENT

OPINION 11EL0 W

The opinion of the three-judge district court (App. la- 
65a) is reported at 907 F. Supp. 434.

JURISDICTION

The judgment of the three judge district court was en­
tered on November 2, 1995. A notice of appeal was filed 
on December 27. 1995. App. 163a-164a. On February 
22, 1996. the Chief Justice extended the time within which 
to file a jurisdictional statement to and including March 
I I .  1996. The jurisdiction of this Court is invoked under 
28 U.S.G 1253 and 42 U S t  1973c.

STATUTORY' AND REGULATORY 
PROVISIONS INVOLVED

The relevant statutory provisions are Sections 2 and 5 
of the Voting Rights Act of 1965, 42 U.S.C. 1973. 1973c.

(1)



1

which aic reproduced in an appendix to tliis jurisdic­
tional statement App 165a 167a. This ease also invoices 
a provision ol the I’toceduies lot the Administration of 
Section 5. 2K C'l IT 51 5 5 ( h ) ( 2 ) .  which is reproduced 
in the appendix App 16Sa

ST VI’E.MKNT

I C ongress enacted the Voting Rights Act of 1065 
in order to eliminate disci limitation in voting Section 5 
of the Ad. 12 ll.S C 1071c. provides that a covered ju 
risdiction may not implement any change in election prac­
tices unless it has first obtained a declaratory judgment 
from the United Slates District Court for the District of 
Columbia that the change "docs not have the purpose and 
will not have the effect of denying or abridging the right 
to vote on account of race or color." Alternatively, the 
change may be enforced if. within 60 days after its sub­
mission to her. the Attorney General has interposed no 
objection to it. A covered jurisdiction seeking preclear­
ance of a voting change under Section 5 must show both 
( I ) an absence of discriminatory purpose in the adoption 
of the change, and (2 )  that the change will not have a 
discriminatory effect Citv o l Rom e v. United States, 446 
IJ.S 156. 172 175 ( I'ISO) ' I here is no dispute that the 
Bossier Parish School Board redistricting plan involved in 
this case is a change in an election practice covered hv 
Section 5. See App. 140a 14 1a ( til 249. 251) .2

'This (emit has interpreted the discriminatory effect standard 
in Section 5 to require a showing of non-retrogression, ir . ,  that 
the proposed change will not diminish the ability of members <»f 
racial minorities to elect representatives of their choice. Milln v. 
,1 oh nsi'ti, ll.r» S. ( ’t. 2175. 2183 i 1905) ; l i ly  of Lockhart v. I ’nitcd 
States. Kit) ITS 125. 131 (19831; liter v 1'uifed States, 425 U S. 
130, 111 ( 107(5).

- Covered changes include redistricting Miller, 115 S. Ct. at 2183; 
28 C.K.R 51.2, 51.13(e) The State of I/ouisiana, and all of its 
political subdivisions, are covered jurisdictions under Section 1



3

The Department of Justice regulations establishing pro­
cedures for the administration of Section 5 set forth rele­
vant factors to guide the Attorney General s determina­
tions under Section 5. See generally 28 (  I II 51 .57- 
SI .61 Those factors include, inter alia, "| t ]he extent to
which minorities have been denied an equal opportunity 
to participate meaningfully in the political process in the 
jurisdiction." 28 ( I IT. 51 . .88(b)(1).  and the extent to 
which "present or past discrimination” alTecled “the voter 
registration and election participation of minority voters,” 
28 C l K . 5 1 .5 8 (b ) (4 ) .  Those provisions are designed 
to "follow| | the law as interpreted by the Supreme Court 
of the United, States and other courts." 50 f ed. Reg. 
19,122 ( 1985).

Section 2 of the Act, as amended in 1982. 42 U.S.C. 
1973. prohibits any voting practice “which results in a 
denial or abridgement of the right of any citizen of the 
United States to vote on account of race or color,” 42 
U.S.C. 1973(a). A Section 2 plaintiff may challenge a 
voting practice on the ground that it has the discrimina­
tory effect of denying minority citizens an equal oppor­
tunity to participate in the electoral process and to elect 
representatives of their choice; no discriminatory purpose 
on the part of the challenged jurisdiction need be shown. 
42 U.S.C 1973(b).-'

When the Voting Rights Act was amended in 1982, 
the Senate Judiciary Committee Report stated that a vio-

of the Act, 42 U.S.C. 19721), and are therefore subject to the pre­
clearance requirements of Section 5. See 28 U.F.It. Pt. 51, App.

■r Section 2 was amended in 1982, Pub. I>. No. 97-205, ii 3, 90 
Stat. 181, in response to t'itii o/  Mobile V. Itoblen. 110 IJ.S. 55 
(1980).  which had held that a violation of either Section 2 or 
the Equal Protection Chilian required a showing of discriminatory 
purpose in the adoption or maintenance of the contested electoral 
practice. The 1982 amendment made clear that no showing of dis­
criminatory purpose is required under Section 2. S. Itep. No. 417, 
97th Cong., 2d Sess. 15-10, 22 i ! 9 8 2 ) ;  Tlionihina; v. Citiiiles, 478 
U S. 20, 25 (19801.



4

lation of amended Section 2 should prevent preclearance 
under Section 5: "In light of the amendment to section 
2. it is intended that a section 5 objection also follow if 
a new voting procedure itself so discriminates as to vio­
late section 2." S Rep No 417, 97th Cong , 2d Sess 
12 n J I t I ‘>S2 )

In I‘<85, the Department ol Justice drafted a regula­
tion requiting denial of pteclearance under Section 5 to 
voting changes that violate Section 2. 50 fed Reg.
10,122. 19,141. That proposed regulation (proposed 28 
C l  R 5 1 .5 0 ( c ) ( 1 ) )  staled that the Attorney General 
would object under Section 5 “based upon violation of 
Section 2." Congress then initiated oversight hearings to 
decide, inter alia, whether the 1982 amendments "sup­
ported the incorporation of Section 2 standards into Sec­
tion 5.” Subcommittee on Civil and Constitutional Rights 
of the House Comm, on the Judiciary, 99th Cong., 2d 
Sess., I'oting Rights Act: Proposed Section 5 Regulations 
I (Comm. Print 1986 Ser. No. 9) {hereinafter Comm. 
Print| hollowing the oversight hearings, the Subcommit­
tee appioved the Department's interpretation of Section 5:

| T |he Subcommittee concludes that it is a proper in­
terpretation of the legislative history of the 1982 
amendments to use Section 2 standards in the course 
of making Section 5 determinations.

( omm Pi ml 5.
In 1987, the Department of Justice adopted the regu­

lation in essentially the form in which it had been pro­
posed. with the modification that the Attorney General's 
denial of preclearance Hiould be based only on a “clear” 
violation of Section 2 I he regulations establishing pro­
cedures for the administration of Section 5, 28 ( I R 
Pt. 51. thus provide that a change may not be precleared, 
not onlv if it was adopted with a discriminatory purpose 
or if it would have a rein gressive effect, 28 ( I R. 
51 .54(a ) .  51 .55(a) .  but also if “a bar to implementation



5

of the change is necessary to prevent a clear violation of 
amended section 2." 28 C'.I-.R. 5 1 .5 5 (h ) (2 ) .

2. a. This case involves preclearance of the redis 
trieting plan for the Dossier Parish School Boaul (Board). 
I he 12 member Board governs the Bossier Parish School 
District, which is cotc niinons with Boeder Parish. App. 
2a-la I lie Board is elected from single-member districts 
fen four-year concurrent terms. A majority-vote require­
ment applies to elections ol Board members, Id. at la 
I he lioatd redistrictccl following the 1990 census to elimi­
nate population malapportionment among its existing 
districts.

In 1990, blacks comprised 20.1% of the total popula­
tion of Bossier Parish, and 17.6% of the voting age 
population. App. 2a. As of 1994. blacks comprised 
15.5% of Bossier Parish's registered voters. I hid. The 
black population of the parish is concentrated in two 
areas: More than 50% of the black residents live in 
Bossier City, id. at 68a ( «i 10), and the remaining black 
population is concentrated in the northern rural portion of 
the parish, id. at 2a. 68a ( *| 10). The parties have stipu­
lated to facts showing that voting in the parish is raciallv 
polarized, id. at 40a. 122a 127a (•!«' ISI-I'W,). and that 
“voting patterns in Bossier Parish are affected bv racial 
preferences," id. at 122a d! 181 ).

No black person has ever been elected to the Board. 
App. 4a. I 15a (1| 153). Despite the facts that the Board 
has 12 members, blacks comprise one-fifth of the parish 
population, and the patch's black population is concen­
trated in two areas, the Board's 1992 redistricting plan 
includes no majority-black districts. Id. at 8a. 68a 
(11 I I ) .  1 f)2a (1| 109). The Board adopted that plan 
even though it has admitted that it was “obvious" during 
the redistricting process "that a reasonably compact black- 
majority district could be drawn within Bossier City.” Id. 
at 76a (1| 36). The outlines of a second, reasonably 
compact majority-black district in the rural, northern area



6

of the p.ui'-h weic ulso ' icoddy disconihle" from infor- 
mation then before the Hoard Id  at 114a (51148) 

Hlaek voters historically have been unable to elect can 
didates ol their choice to other political positions in 
Hossi ci  I’ansh App I 18a 127a Mfl] 153-196). Of the 
N '■lections m the parish since 1980 in which a black 

candidate has mn apainst a while candidate in a single 
me in be i distncl or for mayor. only two black carnh 
'hues have won Id at 127a i« 19 6 1 One was a can 
d'd 'tc bn the Mossier I’aiish Police Jury," and the other 
lor the Dossier City Council Ibid. The black Police 
Jinor warn in Police Jmv District 10. which contained a 
United States Air Force base, id at I 17a (5|5| 160-161). 
and the black ( ity ( ouncil member won in a city council 
district that substantially overlapped Police Jury Distiict 
10. and also included the Air Force base, id. at 120a 
(*! 172) I he district court found that the base is a fac­
tor unique to those districts that increased the ability of 
black voteis in that area to elect representatives of their 
choice. Id. at 2a n. I /■

Mossier Parish and its School Hoard have a history of 
racial discrimination beginning before the Civil War and 
continuing to the present. See generally App. 42a-46a.

1 flic Pulley Jury is the governing body for the parish. See page 
8, infra.

••Many residents in and around the base do not vote in Ineal 
elections. App llTa-llHa I till 1G0-1G3) ; that factor, together with 
the tendency of Air Force retirees who settle in the area to vote 
in a less racially polarized way than other Bossier Parish residents, 
increases the ability of black voters in the districts containing the 
Air Force base to elect representatives of their choice. Id at 117a-

l ' V n  127a ( " ,!,G’ ,n the leconfigured plan adopted
by the Police Jury in 1901 and the City Council in 1993, the Air 
Force base no longer has that pfFeet. Id. at 2a n 1. The Mark 
incumbent Police furor was reelected in 1991 in the redrawn dis­
trict in an election in which he ran unopposed. Ibid. The black 
incumbent city council member ran against a white opponent and 
lost. Id. at 120a MI 173).



no.i 140.1 (1i1l 214-248). Dc jure segregation prevailed 
m Louisiana's schools long after Brown v. Bom ,l o f  Eihic 
247 US. 483 (1954). App. 136a (1 235). The Board 
has repeatedly sought to evade its desegregation obliga­
tions. 1,1. at I 36a-137a <<|«| 237-239). i, remains under 
court order to remedy the vestiges of discrimination in 
its school system See l.rmon  v. B on in  Bmish School 
ILL. -40  I Supp. 709 (W.l). | :l. 1965). alfd. HO F 2d 

7 ( ‘' lh ( »■■>• cent denied. 388 US. 91 I | 1967) Since 
1980. the schools in Bossier Parish have become increas­
ingly segregated by nke. 1,1. at I 37a-1 38a ( f f  240-242). 
The Board has nevertheless violated the Lem on  court's 
order that it maintain a biracial committee to improve 
education and recommend wavs to attain and maintain 
a unitary school system. Id. at 103a-104a ( Alj I I 1-1 12) 7 
The jdTects of past discrimination continue today:

r " " a" y. "{ ,liscn'minalorj- government net ion In Ixmisiana
resulted in the large-scale disenfranchisement of black .......,s  Fol
lowing the passage of the Thirteenth Amendment. Iso.isiana en­
acted laws intended to reduce black voting; black registration

™  Z r  W" h'i a yPar3' APP' ,3na- ,r!,;l LUU 215- 
19) In I,921’ an amendment to the State Constitution required 

persons seeking to register to vote to ‘'give a reasonable intorpre'a- 
t'on of a constitutional provision. 1,1. at 132a (([ 2 2 1 1 That amend

m<̂ " : liSenfra,,C,,ised m° st black citizens’ " aa not invalidated until 106.,. Louisiana v. United States, 380 U.S. 115 (10651  After 
an all-white Imiisiana Democratic primary was invalidated the 
party adopted an anti-single-shot law and a majority-vote require­
ment for party office. App. 132a <||222>; Major v Tree,, 571
F. Supp. 325, 341 (E .n . La. 19831.

7 The biracial committee met in 1976, when it was first convened 
but only the black members attended the few meetings that were 
Inl' i r J m '  T mmi!fee WM ,he" discontinued. App. 103a-104a 
I, .U “o ', A ,lmi ar committee waa formed in 1993, shortly 

after the School Board submitted its redistricting plan to the 
Justice Department for Section 5 review. The Board promptly 
disbanded that committee also because, according to the School 
Board President, the minority members of the committee "quickly
turned toward becoming involved in policy." Id at 104a-105a 
(HU 113-116). iU4a 10oa



8

' lil.uk iiii/Liis of Bossict I’.nish sulfer a markedly lower 
socioeconomic status than their white counterparts" that 
is “traceable to a legacy of racial discrimination alTecting 
Bossier I’aiMt's black citi/ens." hi at 128a (^|2()0); sec 
gcneralls id at 127a I 10a I*'! 197 212). This “makes it 
hauler lot blacks to obtain necessary electoral informa­
tion. oipam/e. raise binds, campaign, register, ami turn 
out to cote, and this in bun causes a depressed level of 
political pa11ic ipation lot black persons within Hossiei 
Parish " hi at I Ida r • 2 1 ' )

b hollowing the I '190 census, redistricting clfoits by 
the Bossier Parish Police Jury preceded the School Board 
redistricting The Police Jury, like the School Board, con­
sists of 12 members, who are elected from single-member 
districts in the same manner as the Board. App 2a. The 
Police Jury has never had a districting plan that con­
tained any majority black districts, ibid., and the plan 
the Police Jury adopted in April. 1991, also contains 
none. id. at 3a, 68a Ml I I ) .

During the 1990-19 9 1 redistricting process, the white 
Police Jurors and their demographer knew, just as the 
School Board knew during its subsequent redistricting 
process, that it was feasible to create two reasonably com­
pact majority-black districts in the parish. App. 76a 
Ml .36). 82a 83a ( 1 5 0 .  I Mu (*|I48). Police Jurors 
nonetheless told citizens who advocated creating majority- 
black districts that it was impossible to create such dis­
tricts because the black population was too dispersed. Id. 
at 3a, 83a Mi 54 ) ;  see also id. at 82a (5)52).

On May 28. 19 9 1, the Police Jury submitted its re­
districting plan to the Attorney General seeking preclcar- 
ancc under Section 5. The Police Jury did not provide 
the Attornev General with the information that showed 
that reasonably compact majoi ity-black districts could be 
created. App. 68a 69a Ml I I ) .  On July 29, based on 
the inloi mation submitted, the Attorney General pre­
cleared the iedistrictin«? plan for the Police Jury elections 
Id. at 3a. 68a-69a M! I I ) .



9

c. The School l?rtfS:jd began its own redistricting pro­
cess in early 1991. App. 4a. With its next election not 
scheduled to occur until October, 1994, the Hoard pro­
ceeded without urgency. Id. at 4a, 93a (1| 83). The Board 
initially chose not to use the districts in the 1991 Police 
Jury plan, but to develop a separate plan for the Board. 
hi. at 4a, 28a, 47a, 94a (1187). Although the Board 
and the Police Juty have jurisdiction over the same geo­
graphic area, tire the same size, and both use 12 single- 
member districts, the bodies serve different functions and 
for at least a decade have maintained different electoral 
districts. Id. at 3a-4a & n.3, 72a-73a (1,1124, 26). 
Schools me unevenly distributed in the Police Jury dis­
tricts, with some districts containing no schools and others 
containing several, and Police Jury district lines do not 
correspond with school attendance zones. Id. at 8a, 72a- 
73a (1| 24). I 12a ( 1| I4I ). Board members also did not 
like the 1991 Police Jury plan because it would pit Board 
incumbents against each other in two districts. Id. at 8a. 
The Board hired the Police Jury's demographer to de­
velop a new' rcdistricling plan for the Board, estimating 
that he would spend 200 to 250 hours on the project. 
Id. at 92a (11 80) ,  94a ( 1| 86). The demographer met 
privately with Board members and showed them various 
computet generated alternative districts, hi. a! 97a (1| 96).

Beginning in March. 1992, representatives of local black 
community groups (including defendant-intervenor George 
Price, president of the NAACP local chapter) requested 
that representatives of the black community he included 
in the Board's redistricting process. The Board failed to 
respond to those requests. App. 5a, 96a-98a ( 1H| 93-94. 
97) . Some Board members privately stated that (he Board 
was “hostile to black representation on the School Board" 
hi. at 3()a-32a. 53a-54a. In August. 1992. with no other 
plan nubliclv on the table. Price presented a plan for two 
majority black districts that had been developed by the 
NAAC P. Id. at 6a. 96a-97a (<|95). 98a (<« 98-99).



10

Price was told that (lie Board would not consider a plan 
that did not also draw (lie other ten districts. Id  at 6a,
98a M| 99)

At (lie September J .  I ‘>92, Board meeting, Price pre­
sented an NAAC.T plan depicting all 12 districts, but 
the Board refused to consider it. ostensibly because ' the 
plan's district lines crossed existing precinct lines, and 
therefore violated state law " App. 99a (H 102); id at 6a." 
The Board knew at the time, however, that it was legal 
and feasible to draw districts across existing precinct lines." 
Indeed, in considering creating a new plan, the Board 
itself had anticipated the necessity of splitting precincts. 
Id  at 29a, 95a Ml 89).

The Board did not ask its demographer to explore the 
possibility of alleviating black vote dilution. App. 101 a 
(11 106). Instead, at its September 17, 1992, meeting, 
without studying the NAAC'P proposal and with two 
years left before the next Board election, the Board un­
animously passed a motion of intent to adopt the Police 
Jur\ plan which it had initially found unsatisfactory. Id. 
at 100a 11! I Oh). At a public hearing the next week. 15 
residents voiced their opposition to adoption of the Police 
Jury plan, principally on the ground that it would dilute 
black voting strength; no one spoke in favor of that plan.

" Election precincts are administrative units established for the 
purpose of conducting elections, including siting polling booths and 
allocating election officials. See generally Corrected United States' 
and Ilefcndanls IntervennrH, Proposed Post-Trial Findings of Fact,
12-t:t r 11 I8i.

■'The Hoard knew that it was "free to request precinct changes 
from the Policy Jury necessary to accomplish [its] redistricting 
plans,” App. 7a (quoting id. at 72a MI 2 3 ) ) ;  id. at !lt)a-100a 
MI 1021 — a practice that was "quite common” state-wide. Id. at 
22a M] 221. There was no discussion at the time of any need 
to minimize (he number of precinct splits or the costa of required 
splits. See generally U S Exhs, 26-28, 32, 34 (Board minutes) ; 
Exh. 102 0. 10 (testimony of Jerome Blunt).



Id. at 7a-8a, 101a Mi 108). The NAACP presented a 
petition containing over 500 signatures opposing adoption 
of the Police Jury plan, and asking the Board to consider 
an alternative. Id. at 7a-8a, 101 a-102a Ml 108). The 
Board adopted the Police Jury plan at its next meeting. 
Id. at 8a, 102a ,M| 109).

The Board submitted the Police Jury plan to the At­
torney Cieneral for preclearance. On August 30. 1993, 
the Attorney General objected to the plan under Section 
5 of the Voting Rights Act, citing information showing 
the cleat dilutive effect of (he plan on minority voting 
strength. Such information had not been provided when 
the Police Jury submitted the same plan in 1991. App. 
8a, 106a Ml I 19). 154a-158a.

3. On July 8, 1994, the Board filed a declaratory judg­
ment action seeking Section 5 preclearance from a three- 
judge district court for the District of Columbia. On 
November 2, 1995. following a two-day trial, the district 
court granted preclearance. App. !a-65a.

The court lirst held that Section 5 preclearance cannot 
be denied based upon a violation of Section 2. App. I la- 
12a. The court reasoned that Section 2 “uses plainly dif­
ferent language and serves a different function from that 
of section 5.” Id. at 15a. The court noted that the dis­
criminatory effects addressed by Section 5 are limited to 
retrogressive effects, whereas Section 2 ’s "result” standard 
“can be violated * * irrespective of whether the dis­
puted voting practice is better or worse than whatever it 
is meant to replace.” Ibid  The court did not address the 
United Slates’ alternative argument that a Section 2 
violation is an independent basis for denying Section 5 
preclearancc. i.e., an affirmative defense, on which the 
United States bears the burden of proof. Sec U S. Post- 
Trial Br. 32 n.27.

The district court concluded that the legislative history 
of the Act did not support denial of preclearance based 
on a Section 2 violation. In its view, resort to the legis-



12

Li live histoiv was inappmpiiale because the language of 
the statute is "unambiguous." App. 17a. The court also 
refusal to annul any deference to the Department of 
Justice icgnlation icipiiiing the Attorney General to with­
hold piccleatance ol \oiing changes that clearly violate 
Section 2. 7K ( I R 5 1 .5 5 (b ) (2 ) .  on the ground that 
precleat.nice docs not depend on administrative proceed­
ings. but m.iv be obtained liom a federal court in the 
lii si instance \pp I Xn I da

T he distiict coin I then held that the Board, in adopting 
the Police Jury plan, did not have a racially discriminatory 
purpose that would bar preclearance. App. 27a-29a. In 
deciding that question, the court held that “evidence of 
a section 2 violation” should not be considered as “evi­
dence of discriminatory purpose under section 5.” Id. at 
23a. The court thus refused to consider, as relevant to 
the Board's purpose, the Board's contemporaneous aware­
ness that the Police Jury plan precluded any meaningful 
opportunity lor blacks to elect representatives of their 
choice. The district court also refused to consider evi­
dence that the Board had a history of racial discrimination, 
including continuing noncompliance with the terms of 
the court order in the two-decade-old school desegregation 
case. Id. at 3-la n. IB. The district court noted that the 
Board "olfeted several reasons for its adoption of the 
Police Jury plan that clearly were not real reasons”  
hi. at 27a & n 15. It nonetheless found “legitimate, non- 
diseriminatoiy motives" fot the Board's adoption of the 
Police Jury plan: "The Police Jury plan offered the twin 
attractions of guaranteed preclearance and easy imple­
mentation (because no precinct lines would need redraw­
ing ).” Id. at 27a-28a.

Judge Kessler concurred in part and dissented in part. 
App. 37a (ba She agreed with the majority that a Section 
2 violation does not prevent Section 5 preclearance, id. 
at 37a, but dissented from the majority's conclusion that 
the Board acted with legitimate, nondiscriminatory motives.



13

id. at 38a-65a. Taking into account evidence that she be­
lieved was clearly relevant under Village o f Arlington 
Heights \. M etropolitan Housing Dew Corp.. 429 U.S. 
252. 266 (1 977 ) ,  and that the majority incorrectly ig­
nored, Judge Kessler found that "the evidence demonstrates 
conclusively that the Bossier School Board acted with dis­
criminatory purpose." App. 39a.

Tills QUCSTIONS I'llKSICNTKl) A It K SUItS'l \NTIAL

I he decision ol the distr ict court seriously undermines 
enforcement of Section 5 of the Votirrg Rights Act of 
1965, 42 U.S.C. 1973c, as amended in 1982. l ire court 
applied the wrong standard for deciding whether Bossier 
Parish redistricted with a discriminatory purpose. It con­
cluded that evidence that this Court consistently has held 
to he relevant to proving discriminatory purpose -includ­
ing evidence of a history of discrimination In the juris­
diction, evidence of the proposed redistricting plan's dilu­
tive effect on minority representation, and other relevant 
evidence— should not, he considered in assessing purpose 
under Section 5. The court based that holding on its 
observation that such evidence would also be relevant in 
a Section 2 case alleging unlawful vote dilution App. 23a. 
By thus arbitrarily excluding probative evidence of pur­
pose, the district court seriously impairs the effectiveness of 
Section 5 in preventing implementation of voting changes 
adopted with a discriminatory purpose. The court’s re­
striction on the Section 5 purpose inquiry also squarely 
conflicts with established law regarding prool of pur­
pose in discrimination litigation. E.g., Rogers \. Lodge, 
458 U.S. 613. 623-624 (1 9 8 2 ) :  City o f  M obile v Holden. 
446 U.S. 55, 70 (1980) (opinion of Stewart, .1 ) (citing 
Village o f Arlington Heights v. Metropolitan Housing Dew 
Corp., 429 U.S. 252. 266 ( 1977)).

The district court also erred in holding that preclearance 
may not be denied on the ground that the proposed vot-



14

ing change violates Section 2 of the Act, 42 U S  ( 1474
I lie court thereby elTeciively invalidated the Depaitment 

of Justice legulation requiting denial of preclearance when 
a clear violation of Section 2 is established. 28 t b R. 
51 5 5 ( b ) ( 2 ) .  I he validity of that regulation presents an 
important question: Since 1485, when Section 51.55(b) 
(2 )  was adopted, the Attorney General has on more than 
40 occasions interposed Section 5 objections based in 
whole or in part on clear Section 2 violations. Section 
5 1 .5 5 (b ) (2 )  implements Congress's amendment of the 
Voting Rights Act in 1982, and it was specifically approved 
by the House Subcommittee on Civil and Constitutional 
Rights following oversight hearings in 1985. The district 
court's holding, in contrast, impedes use of Section 5 as 
( on mess intended, to "shift the advantage of time and 
inertia from the perpetrators of the evil to its victims. 
Si mill ('iiii’lina v. Kat:cnlm<h. 485 U S. 301, 328 ( 1966). 
Under the district court's decision, clearly dilutive voting 
practices must be precleared under Section 5. Minority 
voters (or (he Attorney General, see 42 U.S.C. 1971(c))  
would thus be left to initiate litigation, resubmit evidence 
to prove a Section 2 violation that was already manifest in 
the Section 5 proceeding, and suffer clearly unlawful dis­
crimination in the interim.

Because the District Court for the District of Columbia 
has exclusive jurisdiction over Section 5 declaratory judg­
ment actions, and appeal lies only to this Court, 42 
U.S.C. 1973c, the important federal questions presented 
by this case warrant this Court's attention.

I. a. The district court erred as a matter of law in 
failing to consider evidence directly relevant to the ques­
tion of discriminatory purpose: the Boards awareness of 
the dilutive effect of the Police Jury plan on minority 
voting strength and the Board’s historical and ongoing 
discrimination In refusing to consider this evidence as 
bearing on purpose, the district court failed to follow the 
approach established by Arlington llrighli, 429 U S  at



15

266. Instead, it expressly and repeatedly articulated an 
erroneous standard, holding that what it characterized as 
“section 2 evidence" -evidence that would he n levant in 
a Section 2 vote dilution proceeding—could not also be 
used in determining purpose under Section 5."' The dis­
trict court's refusal to considet important, relevant evidence 
led it incotrectly to find that the Board had no discrimi­
natory purpose. That tefusal also infected the findings 
of fact the court made in support of its detei initiation 
that the Board had nondiscriminatory reasons fot adopting 
its plan."

The district court’s refusal to consider evidence of the 
effect of the Board’s redistricting plan in diluting minority 
voting strength is squarely contrary to this Conn's settled 
approach to determining racially discriminator purpose. 
In the voting rights context, evidence of the impact of a 
disputed decision is “an important starting point" for an 
inquiry into purpose. Holden. 446 U S. at 0 (citing 
Arlington Heights. 429 US. at 266 ) ;  see llogers. 458 
U.S. at 623-624.10 11 12 Discrimination cases arisiiv in other

10 App. 21a ( “we will not permit section 2 evident e to prove 
discriminatory purpose under section 5” ) ; see id. at 2 5a ( “Miller 
fv. Johnson, 115 S. Ct. 2475 (1995))  forecloses the permitting of 
section 2 evidence in a section 5 case” ) ;  ibid, (refusing to “con­
sider evidence of a section 2 violation as evidence of di i iminatory 
purpose under section 5” ).

11 Moreover, the district court’s decision must he it versed even 
if this Court believes that the Board may have been motivated 
only in part by a discriminatory purpose. See City <i Pleasant 
Grove v. United States, 479 U.S. 462, 471-472 (1087» (affirming 
finding of impermissible purpose where plan was ac tivated “in 
part” by discrimination).

12 This Court has affirmed several three-judge distric t court deci­
sions endorsing the application of Arlington Heights to Section 5’s 
purpose prong. See Bushev, v. Smith, 549 F. Supp. 19 1, 516-517 
(D.D.C. 1982), aff’d, 459 U.S. 1166 (1983) ; City of Pott Arthur  V. 
United States, 517 F. Supp. 987, 1019 (D.D.C, 1981 , afT’d, 459 
U.S. 159 (1 9 8 2 ) ;  City of Pleasant Grove v. United S'dates, 568 
F. Supp. 1 155, 1458 (D.D.C. 1983).



16

contexts also require consideration of the impact of the 
disputed practice as part of the assessment of purpose. 
See. e g  . Fullnuin-Standaid v. Swim, 456 ll.S. 273. 286 
& n.18 (|6K2); Personnel Administrator V. Feeney, 442 
U S  256. 274 275 (I67<)). Racially discriminators pur 
pose is most often proved by circumstantial evidence; in 
considering whether such a purpose is present, a court must 
examine the "totality of the relevant facts, including the 
fact, if it is true, that the (challenged practice] hears more 
heuvilv on one race than another.” Washington v. Davis, 
426 I I S 226. 242 ( 1676).

Although evidence that a voting practice substantially 
dilutes minority voting strength ordinarily does not itself 
demonstrate the presence of a discriminatory purpose, it 
is ceilainh relevant in making that determination. This is 
especially true where, as here, the discriminatory clfect of 
the practice was known to the Board at the time the prac­
tice was adopted. This Court held in Rogers that "over­
whelming evidence of bloc voting along racial lines," and 
the fact that "no black had ever been elected” to the legis­
lative body in question "bear heavily on the issue of 
purposeful discrimination .” 458 U S. at 623. The district 
court here therefore erred in refusing to consider, as 
relevant to the Hoard’s purpose, the substantial, largely 
undisputed evidence we presented demonstrating that the 
Board's plan was adopted with knowledge that it would 
lead to minority vole dilution See id. at 623-627 1 11

1 ‘ The Hoard admitted that it was "obvious that a reasonably 
compart hlark-niaioi'itv district could be drawn within Hossier 
City," A|ip. Tfia (fl .‘tfil, ami that the outlines of a compart northern 
maioriti-hhn k district wore readily discernible from the plan ttie 
NAAt'P submitted to the Hoard, ul at I l ia  (11148). Undisputed 
evidence established that blacks comprised a significant proportion 
of voters in Hossier Parish Id. at 2a. "There was * * * overwhelm­
ing evidence of bloc voliny alone racial lines" and, “although there 
had been black candidates, no black had ever been elected" to the 
flossier Palish School Hoard. Ropers. 458 U.S. at 623; App. 10a,
1 ir>a-12."a ■''' 153- Ififi' Hut "rather than consider either of the



17

The district court also (ailed to take into account other 
relevant purpose evidence solely because such evidence 
would also be relevant in a Section 2 proceeding. The 
court, for example, did not consider the Boards substan­
tial and continuing legacy of discrimination against 
blacks. Compare App. 34a n.18 with 42;i-46a. I36a-138a 
(<|f 236-243 ). This Court has held that “|c|vidence of 
historical disciimination is relevant to drawing an infer­
ence of put poseful discrimination.” Rogers, 458 U.S. at 
625; accord Arlington Heights, 429 U S. at 267. In ad­
dition. the fact that "some |parish| schools still remain 
essentially segregated" buttresses the United States' conten- 
ti'mi that the Board adopted this dilutive voting system for 
a disci iminaloi v purpose. Rogers, 458 U S at 624-625. 
The Boa id's recent disbandment of a biracial committee in 
violation of a court desegregation order because the tone 
of the committee made up of the minority members N * 
quickly turned toward becoming involved in policy, App.
1 ()5a («| 116). also reflected the Board's historic prefer­
ence to avoid minority participation." flic district court 
should also have taken into account the fact that the 
Board has been unresponsive to reasonable concerns of 
the black community; that is an ‘ important element * * * 
of |the| number of circumstances a court should consider 
in determining whether discriminatory pm pose may be in­
ferred.” Rogers. 458 U S. at 626 n.9.

alternative proposals ( ttint included majority-black districts] 
brought before it or direct their own cartographer to draft one, 
the School Hoard adopted a plan 'which guaranteed that blacks 
would remain underrepresented on the (Board I by comparison to 
their numerical strength in Ihe enlarged community. hi. at 41a 
fquoting City of Port Arthur, 517 F. Supp. at 10221. Such "actions 
having foreseeable and anticipated disparate impact are relevant 
evidence to prove the ultimate fact, forbidden purpose.” Columbus 
Bd. of Kituc. v. VenirU, 115 U.S. 149. 454 (19791 : see also Feeney. 
442 U.S. at 279 n.25.

11 As Judge Kessler noted, “ |w]hat exactly the Committee was 
suptiosed to become involved in, if not policy, is unclear." App. 46a.



18

|) (m ill,  iiy In I lie distiicl court's suggestion. App 
2 ';i. acknow lodging I lie relevance of evidence of the dis 
ci i111111.11oi \ elfecl of a voting practice is not equivalent 
lo holding ilia! .Section 5 pieclearunce can be denied 
based solely upon a violation of Section 2. We do not 
contend that evidence that would show illegal vote dilu­
tion. or evidence of a history of discrimination, b\ itself 
amounts lo proof of discriminatory purpose. Such evi­
dence. however, is indisputably relevant to the purpose 
inquiry. See pages 15 17. vn/mr; Arizona v. Reno, 887 b. 
Supp 518. 525-524 (D I)C' 1995) (evidence relevant 
to Section 2 violation also relevant to Section 5 inquiry). 
appeal dismissed. No. 95-299 (Mar. 1, 1996).

The district court also incorrectly equated the United 
States' argument that the Hoard's adoption of a plan that 
it knew diluted minority voting strength indicated its 
discriminatory purpose with the purpose argument the 
Court rejected in Miller v. Johnson, 115 S. Ct. 2475 
( 1995 ). App. 54a-36a. In the portion of Miller on which 
the district court relies, ill. at 23a-24a (citing Miller, 115 
S. Cl at 24()2-2495). the Court held only that purposeful 
refusal to subordinate traditional districting principles in 
order to "maximize" the number of majority-black dis­
tricts fails to demonstrate purposeful discrimination. Here, 
in contrast, the United States points not to a failure to 
“maximize" majority-black districts, but to the Board's 
adoption of a plan without even a single majority black 
district. The Board's awareness of the plan’s discrimina­
tory effect is dearly relevant to the existence of discrimi­
natory purpose.1,

'■■Till' Ci hi it in M iller itiil nut refund to consider evidence rele­
vant to discriminatory purpose Indeed, in evaluating whether the 
plan before it was adopted with a discriminatory purpose, the 
Miller Court considered the ameliorative impact of the plan before 
it Ilf) S Ct at 2102 Miller is thus fully consistent with the 
substantial precedent mandating consideration of the effect of 
a decision as one element in the totality of circumstances that in-



19

c. The totality of the evidence thus must be reevalu 
ated in view of the facts the court incorrectly ignored. 
Reversal is rcijuiicd "unless the record permits only one 
resolution of the factual issue consistent with the finding 
below Swim. 45b IJ S at 292. The onl\ conclusion the 
record here supports is piecisely the opposite of the one 
the district court reached: thus, at a minimum, a remand 
is required. In this case, as in Swim, the district couit 
"failed to consider relevant evidence and certainly might 
have come to a different conclusion had it considered that 
evidence.” //>/</.

When the facts the distiict court disregarded are con­
sidered together with the other relevant evidence in this 
case, it is clear that the district court might have come 
to a different conclusion had it not made its legal errors. 
We have already indicated the relevance to the purpose 
determination of the undisputed evidence that the Police 
Jury plan diluted the opportunity of minorities to elect 
representatives of their choice, that the Board had a his­
tory of racial discrimination, and other facts relevant to 
purpose the district court ignored. Pages 15 18 & n.13. 
supra. The district court's erroneous refusal to consider 
that evidence also likely caused it to evaluate improperly 
the limited evidence it did consider as bearing on purpose.

Thus, when the dilutive effect of the Board's plan is 
taken into account. Board members’ statements of oppo­
sition to “black representation” on the Board clearly do, 
contrary to the district court’s conclusion, indicate a 
purpose to prevent “the presence of black persons as 
members of the School Board.’ App. Ha 1 Similarly.

dicates whether the decision was purposefully discriminatory. 
Indeed, throughout its Miller opinion, the Court cited Arlington 
Heights with approval. Miller. 115 S. Ct. at 2185. 2187, 2489.

i« The district court reasoned that the opposition to "the inten­
tional drawing of majority-black districts in order to ensure black 
representation on the Board” was “hardly an indication of discrim­
inatory purpose unless section 5 imposes an affirmative obligation



20

l|u. disiii. i . m i l l ’s i mi itisit ii IhI  .it 28.1 I llt.ll .is«11' Ii!l 
l„ i i l , „ u i M  nils a Ifi’iiinialc anil nondiscrim inalmv  
„ „ |.„ ..I t lv  I '" Ik c  I iii \ plan was dependent
, „ ltu. , , W |\ n r - m s i i i s  ilmi-imi completely 'k " |,K' 
\,iU’ ililiiiinn I Ik- " " I '  i -m iiim cisy  the School Ho.ud  
f .K ol at Hu- lime was M a s k  cili /c iis- opposition I"  Mk

I\ d d i i t i w  ' l l " !  " f  • " ! '  P l; ,n  w l , h  e v ' 111 s i \ e I \
m ar mi while <IisI ,k Is 1 I he ihsliiel emnt also saw the
|l,i,m|s appmiilinenl "I a bl.uk member to a \.iea111 
School Hoard |>osl as mdic.ilive of the Hoards lack o 
opposition to black rep,esciitalinn, and thus as c'ldence 
of the lack of a disciiminatory purpose. Id at h a. out 
,h,l appoiiilmenl was plainly a meaningless palliative. 
When the evidence of racially polarized bloc soling is 
tak-i, into account, along with the fact that all the plan s 
districts are majority-white, it it clear that the black 
appointee’s service was virtually certain to end— as it in 
l Kt did end in six months, when the appointed black 
Hoard member faced an election challenge by a white 
in an ovci v.Iiclmingly while district

a | |,c district court concluded, on the basis of the 
evidence it did consider, that the Board had non racially

......... . additional majority-black districts.” App. 31a. If Sec-
li„rl V ;,|n„,. imposes no such obligation. it remama relevant lha . 
i„ r e t a i n  circumstances, S o  t ion 2 lines. When elected nil,mas 
micaerd in redistricting explain that they drew all ma ,nr,ly wh,l. 
districts In resist the cnrroct nperatinn of Section 2 in the ' in i.m- 
stanecs hefnre them, such an explanation is not, contrary to he 
district courfs finding, an "entirely legitimate reason| | for the 
disputed plan, id. at 31a, I,ut is strongly indicative of dismnnnato . 

purpose.
OTIIO p ro ,sa l  to adopt the Policy Jury plan precipitated an 

overllow meeting filled with concerned black citizens. Their peti- 
„|l|lllSing the Hoard's action was the largest presented on any 

subject in rears. Ap„. 7a-8a, 101a (II 108). Several citizens s,k. e 
iu f;lvnr Of the feasibility of drawing one or more majority-black 
distlilts, and no citizens spoke in favor of the Policy Jury plan 
thnt the Hoard proposed to adopt. Id at 8a.



discriminatory reasons for adopting the Police Jury plan. 
That finding, too, was infected by the court s attilicially 
restricted \iew of the iclevant evidence, and was. in any 
event, clearly erroneous.

The court concluded that “guaranteed preclearance" 
was a legitimate, nondiscriminatory reason for the Board's 
adoption of the Police Jury plan. App. 28a. I he fact 
that that plan had previously been precleared might per­
haps have recommended the Police Jury plan over other 
districting plans comprised exclusively ol majority-white 
districts. But the Board could not reasonably have be­
lieved that a plan that would honor traditional district­
ing principles and improve the opportunity of black citi­
zens to participate in the political process would have had 
less chance of preclearance than the Police Jury plan.1" 
“Guaranteed preclearance thus cannot explain why the 
Board preferred the Police Jury plan to the NAAC'P plan 
or any other plan providing tin opportunity for black voters 
to elect a candidate of their choice. The court's lindmg 
that it did was clearly erroneous.

The district court also clearly erred in evaluating the 
specific “sequence of events'“ leading up to the adoption 
of the Police Jury plan. App. 33a; see Arlington Heights, 
429 U.S. at 267. The court gave no weight to the fact 
that the Board hastened to adopt the Police Jury plan 
only after black voters presented a noil-dilutive plan. The 
court's only explanation of that unusual action was to 
dismiss the NAAC'P proposal as not “plausible.” because 
it “split 46 precincts." App. 33a. The court tound that 
“the School Board entirely reasonably and,I have, when 
faced with the NAACP’s plan, arrived quickly at the 
conclusion that zero precinct splits was significantly more 
desirable than 4 6 "  1,1 at 29a (emphasis added). But

18 Tire Police .lury plan disserved the School Hoards tradi­
tional concerns hy lopsidedly distributing the schools within the 
districts so that some Board members had no schools to represent, 
and by “wreak [ing] havoc with the incumbencies of four of the 
School Board members.” App. 28a. The plan was thus much less



the collect focus in determining tlic purpose behind the 
adoption of the disputed plan is on the Board s actual 
purpose at the time it adopted that plan. City o f Pleasant 
(n ov c  v. Vniteil States, 479 US. 462, 470 (1987) ( re­
jecting arpument developed after the fact" because it 
uas "not the true basis" foi decision). The evidence 
shows that the Police Jury plan split 13 existing piecinels 
and created 20 new piecinels App 85a (51 60). 88a 
89a («I70) The Board itself anticipated splitting pic 
ducts. 1,1 at 29a. 95a (< 89) There is no finding, nor 
even any suggestion in the iceord. that the Board ever 
considered the relative number of such splits, or their 
potential cost, as a factor in selecting the plan it adopted. 
And the Board never considered measures that could have 
reduced the number of precinct splits in the NAAC P 
plan. 1,1. at 86a < «| 62). 101 a Ml 1 0 6 ) "

pi.,nsil.tr wlen i<11'|>t<'11 l.y the School Board than by the Police lory. 
A plan that more evenly distributed schools among districts, and 
that also enhanced the political representation of black voters, 
could not reasonably have appeared to be a worse candidate for 
preclearance than the plan the Board submitted.

PI The fai l that the Board has proffered shifting justifications 
for its decision also supports a finding that it discriminated. 
E.fi, Sun I hurst Mcrclianilisini} Carp. V. NLRB,  53 F.3d 1331, 1344 
(D P  t'jj- ]!i<i5 ) ; KEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d 
Cir. 1004) (citing cases) ; cf. St. Mary's Honor Center v. Iticks, 
113 S. Ct. 2742, 2740 (1903) ("The factfinder’s disbelief of the 
reasons put forward by the defendant (particularly if * * * ac­
companied l.y a suspicion of mendacity) may, together witli the ele­
ments of till' prima facie case, suffice to show intentional discrim­
ination." I. As the district court noted, ‘‘ [l]n the course of 
litigation, the School Board has offered several reasons for its 
adoption of the Police .lory plan that clearly were not real 
reasons" including that the Board sought to comply with this
....... ... decision in Shoe v hVim. 113 S. Ct. 2816 (1003),  which
post-dated the Board’s decision. App. 27a n.15. Other cleaily pie- 
textu.nl reasons included the Board’s stated desire to avoid "voter 
confusion" by adopting the same boundaries for the Police fury 
and School Board districts The voter-confusion rationale was 
raised for tlie first time post hoc, in the Board's Section 5 submis­
sion. and was not a genuine Board interest, given that I/iuisi-



23

3. :t The district court also erred in concluding that 
a non retrogressive redistricting plan that clearly results 
in minority vote dilution in violation of Section 2 must 
be granted preclearance under Section 5. The Depart­
ment of Justice regulations establishing procedures for 
the implementation of Section 5 provide that, even where 
a “submitted change is free of discriminatory put pose and 
retrogressive effect," the Attorney General nonetheless 
shall withhold preclearance where "a bar to implementa­
tion of the change is necessary to prevent a clear viola­
tion of amended section 2." 28 C'.F.R. 5 1 .3 3 (b ) (2 ) .  
That regulation correctly interprets the Voting Rights 
Act, and should be sustained for purposes ol both ad- 
ministialive and judicial Section 5 preclearance proceed­
ings.'1"

All indicia of congressional intent show that, in amend­
ing Section 2 in l l)R2, Congress intended Section 2 and 
Section 5 to woik together ns provided in Section 51.55 
( b ) ( 2 ) .  The Senate Judiciary Committee Repot I on the 
amendments stated that Congress contemplated that a 
violation of amended Section 2 would preclude preclear­
ance under Section 5: "In light of the amendment to 
section 2. it is intended th it a section 5 objection also  
follow if a new voting procedure itself so diset iminates 
as to violate section 2." S. Rep. No. 417. ‘17th Cong., 
2d Scss. 12 n.31 (1982) (emphasis added). I he Senate

ana jurisdictions commonly have different School Board and I’olice 
Jury districts, and the Board had for more than a decade had 
districts different from the Police Jury’s. See id. ;i! 72a Ml 22).  
Finally, although the Hoard had initially sought to i(district in 
a manner that would protect incumbent Hoard members, it promptly 
abandoned that interest when faced with the proposal to draw one 
or more majority-black districts. Id. at 23a, Pda n.f» 73a ( II 2G).

20 The Department of Justice regulations authorize the Attorney 
General to deny preclearance only to prevent a “clear violation” of 
Section 2. 28 C.F.R. 51.55(b) (2 ) .  The undisputed evidence in this 
case established a clear Section 2 violation. The Court thus need 
not reach the cjuestion whether in judicial proceedings preclearance 
may also be denied where a Section 2 violation is present, but is 
less than clear.



24

Rqx'ii U Ilii' ":uitli<>iilalivc source" for construction of 
the 1982 amendments to the Voting Rights Act, 7 liom- 
bto c v. fi/<i c/c'. 478 U S 41), It n 7 (1986).

When C ongress anietuierl Section 2, it did so against 
the hackdiop of a principle it found articulated in Beer v. 
I 'iiih tl Sine',. 125 U S 150 ( 1976) , that a voting pi notice 
ftee of disci iminatorv pmpose or retrogressive efTect under 
Section 5 nonetheless may not he precleared if it is illegally 
dilutive.'1 liter  announced that principle in terms of 
practices that were racially discriminatory in violation of 
the Constitution: The Senate Report quoted "the rule
01 liter"  that a voting change is objectionable if it “so 
discriminates on the basis of race or color as to violate 
the Constitution." S. Rep. No. 417, supra, at 12 n. 3 1 
(quoting 425 US. at 141). The Senate Report's refer­
ence to "the rule of liter"  in connection with its conclu­
sion that preclearance should be denied based on a vio­
lation of amended Section 2. however, reflects Congress's 
assumption that, under that rule, a voting change that is 
dilutive in violation of Section 2 would also, even in the 
absence ol any discriminatory purpose to dilute, not be 
pi eclcarcd

That assumption followed from the 1982 Congress's 
awareness that, at the time Beer  was decided, both Section
2 and the Constitution were understood to employ the 
same standard for determining the existence of racial vote

- ' B u r  held that Section 5 ’s prohibition against voting changes 
with a discriminatory effect seeks principally "to insure that no 
voting-procedure changes | will | be made that would lead to a retro­
gression in the position of racial minorities with respect to their 
effective exercise of the electoral franchise.” 426 U.S. at 141. 
Accordingly, the Court held that a change that leaves racial minor­
ities no worse off than they were before the change has no dis­
criminatory effect for purposes of Section 5. But the Court went 
on to slate that preclearance should nonetheless be denied to any 
voting change that "so discriminates on the basis of race or color 
as to violate the Constitution.” Ihid The Court specifically cited 
the vote-dilution cases as examples of discrimination that could lie 
reached under Section 6 /d. at 142 n 12.



25

dilution. As ;i result of Holden and the 19X2 amendment 
of Seel ion 2. how ever, the constitutional and statutory 
standards diverged."1 Acting in 1982, after the Holden 
decision. C ongress believed that that divergence should not 
alter the applicability of the sound general principle that 
illegally dilutive voting practices should not be precleared 
under Section 5 Having amended the Voting Rights Act 
to reestablish that voting practices that even unintention­
ally result in vote dilution constitute discrimination in 
violation of Section 2. Congress contemplated that voting 
changes that violate Section 2 would not be precleared.

Congressional oversight hearings in 1985 further confirm 
that Section 5 1 .5 5 (b ) (2 )  accurately implements congres­
sional intent In May1. 1985. the Attornev General issued

“  S. Hep. No. 117, ftiiinn, ;it 18-1!) & n.59; set* also ('hisnni v. 
Hornier, MU U S. 380. 392 < 10(51) (“At the time of the passage of 
the Voting Rights Act of 19(55, § 2 * * * was viewed largely as a 
restatement of the Fifteenth Amendment.” ) ;  Bolden, 1IG U.S. at 
00-01 ( “the sparse legislative history of S 2 makes clear that it 
was intended to have an effort no different from that of the 
Fifteenth Amendment itself").

J:* Bolden held that proof of discriminatory intent is necessary to 
establish unlawful vote dilution under Section 2 or the Constitution. 
It was in response to Bolden that ('ongress in 1982 amended Sec­
tion 2. See generally S. Rep. No. 117, supra, at 15-1(5. Concluding 
that Bolden’s intent test put plaintiffs to an inordinately difficult 
burden of proving unlawful dilution. Congress codified in amended 
Section 2 the “results” test originally set forth in White v. Repeater, 
412 U.S. 755 (1973).  See Ginples, 478 U.S. at 43-14. Section 2 now 
prohibits any practice “which results in a denial or abridgement” 
of the right to vote on the basis of race or color. 12 U.S.C. 1973(a).  
Tracking the language of White, 412 U.S. at 7GG, Section 2 provides 
that a violation will be established if “the political processes leading 
to nomination or election * * * are not equally open to participation 
by members of a fprotected class | in that its members have less op­
portunity than other members of the electorate to participate in 
the political process and to elect representatives of their choice.” 
42 U.S.C. 1973(b). The 1982 amendments also extended Section 5\s 
preclearance requirement, which was due to expire <>n August 8. 
1982. 42 U.S.C. 1973b(a) (8).



hie proposed Section 5 icgulations. See SO fed Rep 
| p | 22 Although the wording differed to some evtent 
In,in the fin.il provision. the proposed regulations provided 
th.it the Attorney Cieneral would object to voting changes 
in the case ol a clear violation of Section 2. Id at 1 'hid I 
(proposed 2S ( I R 5 1.56( c ) ( I ) ). Congress then held 
oversieht healings on the proposed regulations, and ac­
quiesced in the Atloincy Cieneral s approach. At the 
oversieht hearings, the Assistant Attorney Genctal for the 
( ivil Rights Division of the Department of Justice testi­
fied in detail that under the proposed regulations Section 
5 objections might he based on clear Section 2 viola­
tions. Congress’s failure to alter the enforcing agency's 
policy, after full review of that policy, “make[s) out an 
unusually strong case of legislative acquiescence in and 
ratification by implication of" the agency’s position. Bob  
Jnnrs Unit. v. United States, 461 U S. 574, 599 ( 198.1).

h. The district court erred in relying on the difference 
between the meaning of “result" in Section 2 and “effect 
in Section 5. and in thus concluding that the statutory text 
“unamhiguoiis|ly|“ rejected the principle that Section 5 
preclearance can lu- denied based on a Section 2 vio- 
l.iiion \pp 17a Hie principle that preclearance should 
not fie granted to voting changes that would clearly 
violate Section 2 does not depend on reading those two 
terms to have the same meaning. Rather, as the regulation 
provides, even where a voting change meets Section 5’s 
nondisc i iininalot y pm pose and non retrogression ctileiia. 
neither the Attorney Cieneral nor the court should be re­
quired to sanction it and permit it to be implemented if

-•I Sc,. l ’i,,i„isiil Changes I" Regulations Governing Sect inn 5 
nf the Voting Rights Act: Oversight ft carings Before the Snhcnmm. 
on Civil amt Constitutional Rights nf the House Cowin. on the 
Juilieianj, Willi CnnR . 1st Sens. ( J 985) [hereinafter Oversight 
Hearings |

“•See Oversight H e a r i n g s  149, 150-152 (statement of YVm. 
Itrnclfnnl Reynolds).



27

il is dearly unlawfully dilutee. Nothing in the text of the 
Voting Rights Act speaks to that issue, and the legislative 
history uniformly suppoits the Attorney General's view.

The district court also noted that the allocation of the 
burden of proof dilTers under Section 5 and Section 2. and 
suggested that it would he inappropriate to require a 
covered jurisdiction to disprove a Section 2 violation in 
order to obtain Section 5 preclearance. App. 16a. We 
agree that, under Section 5, the covered jurisdiction bears 
only the burden of proving the absence of both a retro­
gressive effect and a disci iminatory purpose. I he Depart­
ment of Justice' regulation permits a clear Section 2 vio­
lation to be raised as an affirmative defense against pre­
clearance. upon which the United States, not the covered 
jurisdiction, would bear the burden of proof. If the regu­
lation is applied to judicial preclearance proceedings, the 
United States would bear at least the same burden of proof 
in interposing a Section 2 violation as a defense as it 
would bear as a plaintiff in Section 2 litigation.



2K

CONCI.PSION

ilk- C (uni shot)lii nolo probable jurisdiction. 

Rcspectl 1111 y submitted

Drew S. Hays, III
Solicitor ( icorral

Hkvai. !,. Patrick 
. 1 distant A ttorney ( in n  rot 

Paul Mender 
Deputy Solicitor G eneral 

( ORNF.UA T.R. PlLLARD
A ssistant to the Solicitor G eneral 

David K. Flynn 
E ileen Penner 

/I ttorneys

M \it('li I title.

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