Proposed Findings of Fact and Conclusions of Law of Plaintiffs Barbara Major

    UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA 

BARBARA MAJOR, et al.,; 

Civil ‘Action No. 82-1192 
Plaintiffs, 

Section C 
against — 

THREE JUDGE COURT CASE   
DAVID C. ‘TREEN, etc., et al., 

CLASS ACTION   
Defendants. 

PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW 

OF PLAINTIFFS BARBARA MAJOR, et al.   

A. Findings of Fact 

(1) Plaintiffs are black registered voters representing 

all black persons who are residents and registered voters of the 

State of Louisiana. This action has been certified as a class 

action under Rule 23(b)(2) of the Federal Rules of Civil 

Procedure. 

(2) The duly elected Governor of the State of Louisiana, 

David C. Treen, is a defendant in this action. As Governor, 

defendant Treen has certain duties under the Election Code of 

the State of Louisiana, La. R.S. Title 18, and also has the duty 

to support the laws of the State and of the United States and 

to see that the laws are faithfully executed. The defendant  



Governor also has the responsibility under the Election Code of 

the State of Louisiana, La. R.S.: Title 18to ~~... -, 

(3) James H. "Jim" Brown is the duly elected Secretary of 

State of the State of Louisiana and is a defendant in that 

capacity. As Secretary of State, Mr. Brown has the duty to 

prepare and certify the ballots for all elections, promulgate 

all election returns and administer the election laws. 

(4) The State of Louisiana has eight congressional 

districts, a number it has had since 1933. The size of the 

ideal congressional district under the 1970 census was 455,580 

persons, and under the 1980 census, the figure rose to 525,497 

persons. 

(5) The population of the State of Louisiana is 

million people, of whom million (29%) are black. There 

are no blacks presently elected to state wide positions and no 

blacks have been so elected in over one hundred years. Nor has 

a black been elected to the United States House of Representa- 

tives from any of Louisiana's congressional districts in this 

century. 

(6) Reapportionment of congressional districts by the 

Louisiana Legislature is mandated by Article I, § 2 of the 

United States Constitution and Article III, § 1 of the Louisiana 

Constitution of 1974. Congressional districts in Louisiana were 

last reapportioned in 1972. As a result of the 1980 census, the 

State had to reapportion its congressional districts.  



(7) At the conclusion of the 1981 regular legislative 

session, both houses of the legislature appointed members of 

a congressional reapportionment subcommittee. These subcom- 

mittees were under the jurisdiction of the Senate Committee 

on Senate and Governmental Affairs and the House Committee on 

House and Governmental Affairs. No blacks served as members of 

either subcommittee. Representative Joseph Delpit was a 

nonvoting "wild card" member of the House Subcommittee on 

Congressional Reapportionment (Vol. II, Tr. 18). He was not 

invited, however, to the meeting where the Subcommittee voted 

on plans for congressional reapportionment. (Vol. II, Tr. 

13-14, Turnley), and only learned of the meeting as it was 

breaking up (Vol. 11, Tr. 14). 

(8) At the first meeting of the congressional reapportion- 

ment subcommittee, which was a joint session, held on July 21, 

1981, rules for congressional reapportionment were adopted, 

including a rule to avoid dilution of minority voting strength. 

( .) This rule was passed at the urging of staff who had 

studied the law and had been specially trained. (Vol. III, Tr. 

Baer). 

(9) At the first joint meeting, members of the subcommittee 

recognized the logic and necessity of drawing a plan which would 

be centered on the metropolitan New Orleans area and which would 

have at least a black population majority. (P.ExX. ow) Nol. 1, 

Tr. 267, Barringer: Vol. 111 Tr. , Baer.) Moreover, the 

possibility of creating a majority black district was brought out 

"very early on in the public hearings" and the legislative staff  



was "directed quite early on to come up with such a proposal." 

(Vol. 1, Tr. 267, Barringer). 

(10) The Louisiana congressional delegation presented its own 

proposal to the subcommittee, but the proposal significantly ex- 

ceeded the maximum deviation standards of 1.00% previously estab- 

ished by the subcommittee. Moreover, in response to a written 

request by the subcommittee to draw a plan recognizing the 

black population concentration in Orleans Parish, the congress- 

ional delegation did not submit any further plans. (Vol. III, 

Tr. .) 

(11) On October 22, 1981, which was several months after 

the subcommittee process began and only a few days before the 

Special Session began, Governor Treen for the first time released 

his proposals for congressional reapportionment. Those proposals 

were denominated Treen "A", "B", and "C". None of Governor's 

Treen plans contained a majority black population district. 

(Vol. IV, Tr. .) During this period the Governor made 

known his opposition to congressional reapportionment plans 

containing majority black population districts. (D. Ex. 1.) He 

denounced such plans as "racist," with ominous consequences. 

(Vol: Vi, Tr. 36.3 

1/ Q Now, you also expressed another reason in your 

direct examination for your opposition to the Nunez Plan. 
I think you said that you had no opposition per se to a 
majority black population, that you knew of no constitu- 
tional imperative to deliberately draw race congressional 
districts, and that you thought a deliberately drawn 
district that was a majority [black] population might 
have ominous consequences? 

  

  

   



(12) On Monday, November 2,1981, the First Extraordinary 

Session of the Louisiana Legislature of 1981 convened to 

consider reapportionment matters. Congressional reapportion- 

ment did not come before the full Legislature until that 

time. Eight bills to reapportion the congressional districts 

were introduced including Senate Bills 43, 5, 6, 28 and 29 and 

House Bills 2, 25 and 26. Of these, only Senate Bill 5 filed 

by Messrs. Nunez and Tiemann and House Bill 2 filed by Mr. 

Scott, and their amendments, were seriously considered. 

I, Tr. ; Barringer.) 

(13) Senate Bill 5 (the Nunez Plan) created seven white 

population majority districts and one black population majority 

district. The plan provided for a Jefferson Parish based 

district (the First Congressional District would have been 72% 

Jefferson) and an Orleans based district (84.9% of the Second 

1/ continued 

A Yes. 

Q You also stated that it might foster polarization? 

A Yes, which I believe Justice Douglas agrees, as so 

stated in his decision. 

Q Prior to the enactment of Act 20, that is while 
the Nunez Plan was still being considered by the Legislature, 
isn't it true that you also said that the purpose for drawing 

a majority black district smacks of racism? 

  

  

  

  

A Yes. 

(emphasis added)  



Congressional District would have been in that Parish). The 

First District under the Nunez Plan as introduced encompassed 

the West Bank of Jefferson Parish (i.e., the portion of Jefferson 

Parish on the west side of the Mississippi River), Plaquemines 

and St. Bernard Parishes. The Second District included the 

large portion of Orleans Parish on the East Bank of the 

Mississipi River and was 57.1% black in population and 46.3% 

black in registered voters. (P.Ex. .) The Nunez Plan was 

drafted by Senate Staff Aide Michael Baer, and was consistent 

with the textbook guidelines he was trained to follow. (Vol. 

III Tr. 84.) These guidelines included compactness, observance 

of geographical and natural boundaries, one person/one vote 

concerns, and avoidance of dilution of minority voting strength 

by recognizing discrete, geographical black population 

concentrations. (Vol. III Tr. ed) House Bill 2 (the Scott 

Plan) provided for a 50.2% black population majority in the 

Second Congressional District, with 43.9% black registered 

voters. 

(14) All the Senate Bills on congressional reapportion- 

ment, including Senate Bill 5, were referred to the Senate 

Committee on Senate and Governmental Affairs on Tuesday, 

November 3, 1981. All the House Bills on congressional reappor- 

tionment, including House Bill 2, were referred to the House 

Committee on the House and Governmental Affairs on Tuesday, 

November 3, 1981. {P.Bx. ah  



(15) On November 4, Senate Bill 5 was reported out of 

committee and onto the floor of the Senate, where it passed by a 

vote of 31 to 6. Two substantive amendments to the bill were 

rejected by the Senate. One rejected amendment embodied one of 

Governor Treen's plans, Proposal A. 

(16) On November 4, House Bill 2 was reported out of 

committee with an amendment to replace the "Scott Plan" with 

Governor Treen's Proposal B. The bill as reported out of 

committee was placed on the House calendar, where it remained 

until Friday, November 6. On Thursday, November 5, Senate Bill 

5 was received, and referred to the Committee on House and 

Governmental Affairs. 

(17) On Friday, November 6, an amendment to substitute 

the Nunez Plan (Senate Bill 5) for Treen Proposal B was adopted 

by the House by a vote of 59 to 38. House Bill 2, incorporating 

the Nunez Plan, was finally passed by the House by a vote of 

61 to 38 and was sent to the Senate. 

(18) After House Bill 2 was amended to incorporate the 

Nunez Plan, creating a majority black population congressional 

district in District 2, on November 6, Governor Treen issued a 

public statement that "Any bill in that form is unacceptable and 

without question will be vetoed." ((Vol.' I Tr. ; Barringer) 

(Vol. 111 Tr. 7" Baer) (Voli. IV Tr. ; Treen ).) 

(19) When House Bill 2 was sent over to the Senate on 

November 6, it was discoverd that there had been a defect in 

the Bill, in that it left out one voting precinct in Jefferson  



Parish. This was a technical defect. (Vol. 1, Tr. 273; 

Barringer). Except for this technical defect, the Nunez Plan 

passed both Houses of the Louisiana Legislature. (Vol. III, 

Tr. 69, Baer). 

(20) Although the Senate had passed an almost identical 

bill on November 4, the Senate leadership decided not to submit 

House Bill 2 for ratification because it would afford Governor 

Treen a technical excuse to carry out his public threat of 

a veto. They decided to wait over the weekend until Monday, 

November 9 to straighten out the technical variance. (Vol. 

II Tr. o) 

(21) The Governor's threat to veto forestalled the final 

passage of the Nunez Plan (Vol. I1I, Tr. 37, Chehardy; Tr. 77, 

Baer), and virtually guaranteed that a plan with a majority 

black district would not be adopted by the legislature.’ 

No gubernatorial veto has ever been overriden by the Louisiana 

legislature, (Vol. III Tr. 37, Chehardy; 71, 78-79 Baer), and 

the legislature wanted to come up with a plan acceptable to 

the Governor within the Special Session. (Id.). 

2/ Q. Do you remember specifically the Governor's position 
on creating a black district? 

A. Yes. His position was that he opposed it. He felt 

that we would be better served by having the influ- 
ence of two districts as opposed to having a district 

that would be predominantly black, where the oppor- 
tunity would be availabler for a black person to be 
elected. 

(Vol. II, Tr. 24, Turnley). 

i  



(22) On November 9, in response to the Governor's threatened 

veto and heavy lobbying over the weekend by the Governor's aides 

(Vol. 1, Tr. ys Barringer) (Vol. IV Tr. : Treen), the full 

House adopted an amendment to incorporate Governor Treen's 

Reconciliation Plan (Plan X) by a vote of 74 to 22 and returned 

the bill to the Senate. Upon receipt of the amended Senate Bill 

5, the Senate rejected the House Amendments to its bill by a 

vote of 28 to 3, necessitating the appointment of a conference 

committee to work out the differences between the chambers. 

(23) A conference committee, consisting of Senators Hudson, 

Nunez and O'Keefe and Representatives Alario, Bruncau and Scott, 

was not appointed until November 11. (Vol. I, Tr. 280; 

Barringer) No black legislators were appointed to the con- 

ference committee, (Id. 282; 295) although several black 

legislators delivered impassioned speeches supporting the 

creation of a majority black district, a position that had 

been consistently held by the Louisiana Black Legislative 

Caucus (Vol. II Tr. 10-12; Turnley) and black leaders throughout 

the State of Louisiana. { (Vol. I, Tr. ; Lewis) (Vol. 11, 

Tr. 11; Turnley) (Vol. II, Tr..J1)6:iCassimere).;) 

(24) Appointment of the conference committee was delayed 

so that a compromise acceptable to Governor Treen could be 

developed. (Vol. 111, . Tr. 39-40, Chehardy). 

(25) The actual work of hammering out a settlement took 

place in the Senate Computer Room in the basement of the State 

Capitol basement. Participants in the basement meeting were  



Jefferson Parish Assessor Lawrence Chehardy, State AFL-CIO 

President Victor Bussie, Senate President O'Keefe and Senators 

Nunez and Laurcella, Representatives Alario, Congressman Gillis 

Long and aides to Congresswoman Lindy Boggs, Long and Billy 

Tauzin and members of the Senate administrative services staff. 

No members of the Louisiana Black Caucus participated in these 

sessions nor was any effort made to contact them. (Vol. 111, 

Tr. 27; Chehardy). No notice of this "meeting before the 

meeting" was given pursuant to Louisiana's Open Meeting Law. 

(Vol I, Tr. 286, Barringer; Vol. II, Tr. 18-19.) The guidelines 

followed in this sub-basement meeting were to draw a district 

with a population majority in Jefferson Parish with not less 

than 40% black population, equal to the population in District 

2 under the 1972 plan. (Vol. 1, Tr. 287, 293-294, Barringer.) 

The guidelines necessitated that the black population per- 

centage of District 2 not exceed 45% (Vol. I, Tr. 291-92; 

Barringer), which is what the Governor intended. {D.Ex. 1, May 

28, 1982 Memorandum from Special Counsel Martin Feldman to 

Assistant Attorney General Reynolds, adopted by Governor Treen 

in his June 6, 1982 letter to Reynolds.) Racial figures were 

always being considered. (Vol. 1, Tr. 292, Barringer) and 

there was a ceiling of 45% black population. (Id. at 310). 

(26) No blacks were consulted by the group actually 

hammering out what became Act 20. Representatives were present  



3/ of all interested parties, except plaintiffs and other blacks. 

(Vol. 111, Tr. 27; Chehardy.) 

(27) When agreement was reached by the sub-basement group, 

the Plan was taken after the dinner hour to the Governor for his 

examination. When Governor Treen reviewed the plan he was con- 

cerned about its shape and its affect on predominantly white 

wards in Orleans Parish that historically were part of Congress- 

ional District One. He had no concern that the plan did not 

recognize existing concentrations of black voters in Orleans 

Parish. Nor did he care that the Plan carved up the black 

community without regard to political (ward) or historical 

boundaries. (Vol. IV, Tr. 69, Treen.) 

(28) On Wednesday, November 11, after Governor Treen noted 

his approval, the conference committee formally met and adopted 

the compromise plan by a vote of 4 to 2 with Representatives 

Scott and Alario dissenting. Representative Scott proposed 

amendments to create a majority black district in New Orleans, 

but those amendments were rejected. Both the full House and 

Senate passed the conference committee plan, the amended Senate 

Bill 5, on November 12, 1981, the last day of the special 

S/ (Cassibry, J.) 

QO. Since blacks were being chopped up, more or less, 

you didn't feel it incumbent upon someone to call 
them in and discuss it with them? 

(Chehardy): I think the feeling in the meeting was 

that the one group that was not going to come out of 
the session satisfied was going to be the blacks. ... 

SHE Bh  



session. Governor Treen signed the bill into law on November 

19, 1981 as Act 20 of the First Extraordinary Session of 1981. 

That Act is the subject matter of this litigation. 

(29) Act 20 of 1981 created ‘a Second District with a total 

population of 526,605 people, of whom 44.% are black. 

(30) But for the intervention of Governor Treen, the 

Louisiana Legislature would have passed the Nunez Plan, creating 

a congressional district with a majority black population. 

(Vol. III, Tr. 91, 93 Baer: "When the Governor said that he was 

going to veto the plan, the only thing we could do was try to 

create as best we could, either that or do a vain and useless 

thing. I think our members sincerely believe that they passed 
  

the best plan for blacks that could be passed and signed by the 
  

Governor of the State of Louisiana.") (emphasis added). 
  

(31) Blacks were excluded from the process by which the 

Legislature rejected the Nunez Plan with its creation of a 

majority black congressional district. Throughout that process, 

normal procedures were not followed, state laws were ignored 

4/ Q. (Cassibry): This legislature had done it (the text- 
book plan with a majority black district), both sides 

overwhelmingly, and then backed away? 

(Baer): Yes, sir. 

What does that tell us, anything? 

Yes, sir. It tells us that the 
Governor still has a lot of strength 
in this State. 

- 12 -  



and competing political, and negative racial concerns, exclu- 

sive of and without regard to those concerns of plaintiffs and 

other black registered voters, were allowed to dominate. (Vol. 

III, Tr. 27, 37, Chehardy; Tr. r.Baer:; Tr. 40, 50, Landrieu). 

"The textbook stuff was out the window." (Vol. 117, Tr. 82-83, 

Baer). 

(32) In enacting Act 20 no consideration was given to the 

notion of making a compact, contiguous district in New Orleans; 

or to a district that would have embodied the concept of 

community of interest, or to a district recognizing traditional 

political boundaries such as ward or parish lines. (Vol. II, 

Tr. 273; Vol. 111, Tr. $4,980). 

(33) The evidence shows that there is racial polarization 

in the electoral system in the Orleans metropolitan area. 

{Vol. 11, Tr. 138-41 Engstrom; Vol. 1, Tr. 125-49 Henderson). 

All of the political science literature consistently concludes 

that there is a highly polarized electoral system in the 

Orleans metropolitan area. That was also the conclusion 

reached by plaintiffs’ experts. (Vol. 1, Tr. i Vol. 11, 

Pr. . 139-41). Indeed, studies by defense experts reach the same 

conclusion that race is a significant factor in the electoral 

process. {Vol. 11, Tr.: 139). 

(34) Plaintiffs' expert Gordon Henderson conducted 

specific studies for elections in the Orleans metropolitan area 

from 1976 to 1982 using all of the precincts in Orleans Parish 

and resulting in 200,000 data items in 40 computer runs. 

Professor Henderson's computer assisted analysis is consistent 

= 13,  



with the techniques of political science experts to determine 

the degree of racial polarization in a jurisdiction. Professor 

Henderson's studies showed an extremely consistent pattern of 

racial bloc voting in all the elections examined. For example, 

19 of the 39 elections studied showed correlation coefficients 

of '.9% or higher. (Vol. 1, Tr. 139). This is an almost 

perfect correlation between the race of the voter and the race 

of the candidate. 

(35) The testimony and the studies cited by the experts 

showed no evidence of a reduction in the level of polarization. 

(Vol. 1, Tr. 138, Benderson; Vol. II, Tr. 138-40 Engsirom; Vol. 

II, Tr. 120, Cassimere). 

(36) The probable reason for the increase in racial bloc 

voting in Orleans Parish in recent years is that when black 

voters perceive that a black candidate is credible (i.e., has a 

possibility of being elected), they tend to turn out in greater 

numbers and vote in a bloc. Similarly, when white voters 

perceive that a black candidate is credible, they tend to turn 

out in greater numbers to vote for the white candidate. (Vol. 

II, Tr. 122, Cassimere). 

(37) Federal courts have frequently found that a majority 

vote run-off requirement tends to impede effective participa- 

tion by minority voters in a racially polarized electorate. As 

Professor Engstrom concluded, the majority run-off requirement 

can exacerbate the problem of black voters not having a fair 

opportunity to elect a candidate of their choice. (Vol. 11, 

Tr. 136: Engstrom; Vol 1, Tr. 221, 224, Henderson). 

EEY  



(38) The dilution of minority voting strength occurs 

whenever a majority of black voters are placed in a district 

with less than 50% black registered voters, a racially polarized 

electorate and a majority run-off requirement. Where there 

exists a sizeable concentration of minority voters, (i.e., 

approximately 50% minority registered voters in a population 

equivalent to the size of an ideal district), the creation of a 

district, as in Act 20, with 39% minority registered voters 

constitutes dilution of minority voting strength in view of the 

highly polarized electorate and the majority runoff requirement. 

(Vol. I, Tr. 149, 221%, Henderson; Vol. 11, Tr. 137 Engstrom: 

In a polarized situation with a majority runoff requirement, 

one simply has to "keep the black votes sufficiently below 50%" 

to prevent the minority from being elected. 

(39) In a district that is 39% black registered voters 

and as highly polarized as the electorate in the Orleans 

metropolitan area, the black voters wouldn't have a fair chance 

of electing a representative of their choice. In light of the 

high level of polarization, it is also unlikely that a repre- 

sentative elected from such a district would be accountable to 

the black voters. (Vol. 1, Tr. 243, 251-253, Lewis; Vol. II, 

Tr. 169-173 Engstrom). It is more likely, in fact, that black 

voters would go to black representatives outside the district 

with their problems. {Vol. 11, Tr. 166-68, Engstromy. 

(40) There is little, if any, community of interest be- 

tween blacks in Orleans and whites in Jefferson Parish. (Vol. TY; 

- 15 =  



Tr. 149, Engstrom). Residents and politicians in the two areas 

disagree on a large number of issues. According to witnesses 

for both plaintiffs and defendants, a community of interest 

between blacks in Orleans and residents of Jefferson Parish 

would be highly unusual. (Vol. I, Pr. 239, 251-58, lewis; Vol. 

1X, 7r. 237, 253, Bruneau). 

(41) The differences between Orleans and Jefferson 

Parishes are even more pronounced if one compares the voting 

records of black legislators from Orleans Parish with that of 

the legislators from Jefferson (all white). The two groups are 

seldom on the same side of any issue. The only occasion when 

the two groups have formed a coalition within recent memory was 

the attempt in November, 1981 to pass the Nunez Plan described 

above. Defense witness Bruneau testified this was "the most 

unlikely coalition that I have ever seen in 17 years of closely 

observing the process in the Louisiana Legislature. (Vol. 11, 

Tr. 237). 

(42) The State of Louisiana has a long and, until recent 

times, unbroken history of official discrimination which until 

passage of the 1965 Voting Rights Act included official prohibi- 

tions against voting by blacks. 

(43) Beginning with the first state constitution in 1812, 

Louisiana limited the franchise to white males, despite the 

fact that there were many free blacks at the time who enjoyed 

all the other incidents of citizenship. The prohibition 

against blacks registering to vote was unbroken until Recon- 

=] 6  



struction, when, for a brief time, under the Federal occupation, 

the prohibition was lifted. Immediately after the withdrawal 

of federal troops, Louisiana instituted a variety of disen- 

franchisement devices including the grandfather clause, literacy 

tests, property ownership requirements, and poll taxes, 

which resulted in the disenfranchisement of almost all black 

voters. 

(44) Although there is no explicit legal barrier to 

registration by blacks today, blacks continue to register and 

vote at a rate much lower than whites, and there are propor- 

tionally more whites in the voting age population than blacks. 

The underregistration and lower voter turnouts among blacks 

reflect the vestiges of prior discrimination. The "hangover 

effect" of this past ‘discrimination (Vol. 1I, Tr. 146-47, 

Engstrom) is evident in a lower level of education than whites, 

lower socio-economic status, poorer housing, and less income as 

reflected in 1980 census data. {Vol. 1, Tr. 154, Henderson). 

(45) The State of Louisiana and every jurisdiction within 

the state maintained separate schools for whites and blacks as 

of the time of the 1954 decision in Brown v. Board of Education. 
  

Practically every school system in the state remained segregated 

until prohibited from doing so by the federal courts. There 

was testimony that no jurisdictions desegregated voluntarily, 

and many are still segregated. (Vol. II, Tr. 90-91).  



Plaintiff's expert Dr. Cassimere testified that as 

part of the massive resistance to federal court ordered de- 

segregation of schools and to extending the franchise to 

blacks, the policy of nullification and interposition was 

resurrected by the State's Rights Party and others. From 1940 

through 1964, these groups organized to prevent blacks from 

obtaining equal rights. (Vol. 11, Tr. 84-88). In 1960, 

Governor Treen was Chairperson of the Louisiana State's Rights 

Party. {D. Bx. )- 

At least through 1981, the State maintained an 

essentially segregated system of higher education. 

(46) Physical separation and mandatory segregation 

characterized public accommodations, churches and "practically 

every form of social contact between whites and blacks," (Vol. 

II, Tr. 89-90, Cassimere), throughout the State until at least 

the early 1960's. 

(47) There are lingering effects of Louisiana's history 

of discrimination against blacks and there are still barriers 

to participation by blacks in the political process. (Vol. 11, 

Tr. 93-95, Cassimere). For example, limiting registration 

hours and locating the registration office near the sheriff's 

department are current practices that inhibit black people from 

registering to vote. 

(48) There is a close relationship between the contempo- 

rary consequences of Lousiana's history of discrimination and 

the ability of and the opportunity for black voters in the 

State to participate in the political process. (Vol. I, Tr. 

- 38  



153, Henderson: Vol. 11, Tr. 146-48 Engstrom; Vol. 11, Tr. 

95, Cassimere). 

(49) The protection of incumbents is not an approved 

criterion of neutral good government in drawing redistricting 

plans. (Vol. 11, Tr. 157, Engstrom). In enacting Act 20, 

protection of incumbents was allowed to dominate all other 

considerations. When there are no black incumbents and have 

not been any for over 100 years and when blacks are deliberately 

excluded from the decision making process, the protection of 

incumbents becomes analogous to deliberate racial discrimination. 

(50) As a result of these continuing effects of past 

discrimination, blacks in Louisiana do not have the opportunity 

to particpate in the electoral processes on an equal basis with 

whites. Act 20 further limits that opportunity by fragmenting 

a sizeable black population and voter concentration and manipu- 

lating boundary lines in ways that diluted black voting strength. 

Of the Orleans Parish districts which are 95% or more black in 

population, for instance, approximately half have been put in 

the First Congressional District and the other half have been 

put in the Second. 

(51) The shape of the districts established by Act 20 is 

unusual, and, when superimposed on a map of black population 

concentrations, is explainable only as an attempt to divide 

deliberately the concentration of black voters. (Vol. 1, Tr..32, 

104, Henderson). Even defendants' experts agree that the shape 

of the plan resembles the cartoon character Donald Duck. (Vol. 

IV, Tr. y Selle; Tr. , Wildgen). 

-"9 =  



(52) The black population in the Orleans metropolitan 

area is almost totally within the boundaries of Orleans Parish. 

(Vol. I, Tr. 72-3, Henderson). All the plans before this 

Court, except for Act 20, recognized this population concen- 

tration and left it intact. (Vol. I, Tr. 83, Henderson). 

Both the Nunez Plan and the Scott Plan were legislative efforts 

that are more compact and contiguous and that adhere more 

closely to neutral features of plan drawing. {vol. 1, Tr. 

100-101, Henderson; Vol. 1V, Tr. ;, Selle). The Nunez Plan 

follows the geographical boundaries of the Mississippi River. 

(Vol. I, Tr. 101-04, Henderson). The Henderson Plan observes 

the parish boundaries of Orleans and Jefferson. 

(53) Act 20 splits (number of) wards, the majority of 

which are 90% or higher black population. In Orleans Parish, 

wards are meaningful political boundaries. (Vol. II, Tr. 

Bruneau). Residents identify themselves and black political 

groups have organized themselves along ward lines. ( 

See Taylor v. McKeithen (5th Cir.) on remand.   

(54) The process by which the Department of Justice 

precleared Act 20 was unreliable. In over-ruling the recommen- 

dation of the staff attorney Robert Kwan to object to Act 20, 

the Assistant Attorney General was motivated by political 

concerns unrelated to the purposes of Section 5 of the Voting 

Rights Act. 

(55) The lack of a rational shape may not be conclusive 

as to intentional racial gerrymandering, but it is highly 

suggestive. (Vol. 1, Tr. Henderson; Vol 1, Tr. 

= TO  



Engstrom). An inference can be drawn from the shape of the 

districts, as well as from comparison with other neutral dis- 

tricting criteria, that Act 20 is an intentionally discrimina- 

tory racial gerrymander. 

(56) Under the totality of circumstances surrounding 

the passage of Act 20, the passage by both Houses of the 

legislature of a plan with a black majority congressional 

district, the exclusion of blacks from the process particularly 

from the unusual procedures followed as a result of the Governor's 

threat to veto the plan with a majority black district, as well 

as the shape of the districts created by Act 20 and their 

fragmentation of the concentration of black voters in Orleans 

Parish, this Court finds that Act 20 intentionally dilutes the 

voting strength of blacks in the Orleans metropolitan area. 

(57) Under the totality of circumstances surrounding the 

history of blacks in Louisiana, the legacy of that history, the 

depressed socio-economic status of blacks in the Orleans 

metropolitan area, the lack of community of interest between 

blacks in Orleans and whites in Jefferson Parish, the high 

degree of racial polarization in the electorate and the re- 

liance by the defendants on tenuous, conflicting and unpersua- 

sive explanations of the purported policies behind Act 20, this 

Court finds that blacks are unable to participate fairly in the 

political process as a result of the enactment of Act 20 by 

defendants.  



Conclusions of Law 
  

(1) The Court has jurisdiction of the parties and of the 

subject matter pursuant to 28 U.S.C. §§ 1331 and 1343 and 42 

U.S.C. § 1973j, to redress the deprivation of plaintiffs’ 

rights secured by the Thirteenth, Fourteenth and Fifteenth 

Amendments of the United States Constitution and 42 U.S.C. 

§§ 1981 and 1983. 

(2) The plaintiffs have shown that Act 20 of the 1981 

dilutes, minimizes and cancels out black voting strength in 

congressional districts in the New Orleans metropolitan area, 

and thus denies to black citizens and black voters of the New 

Orleans metropolitan area the right meaningfully to participate 

in the election process for representatives to the United 

States House and to elect candidates of their choices, and 

precludes the election of black representation in the United 

States Congress from the State of Louisiana, in violation of the 

rights of plaintiffs and members of the plaintiff class secured 

by the Thirteenth, Fourteenth and Fifteenth Amendments to the 

United States Constitution and 42 U.S.C §§ 1971, 1973, 1981 and 

1983. 

(3) Plaintiffs have shown that Act 20 is a racially 

discriminatory delineation of boundary lines for congressional 

districts. They have met their burden of proof under the 

Fourteenth and Fifteenth Amendments that this gerrymander was 

intentional. They have presented direct and/or circumstantial 

- 2D  



evidence that is sufficient to establish a claim of racially 

discriminatory dilution, cognizable under the Fourteenth and 

Fifteenth Amendments. Perkins v. City of West Helena, Ark., 675 
  

F.2d 207 (8th Cir. 198%), iaff'd-mem. - id ULE. 7 (71982); 

Rogers v. Lodge, USe:  102:8.Ct. 32724. 713 -L.EE. 24 1012 
  

{1982). 

(4) In determining that a discriminatory purpose 

existed in the enactment of Act 20, this Court has considered 

the totality of circumstances and finds that Act 20 was enacted 

to accord members of plaintiff class less opportunity than 

other voters to participate meaningfully in the political 

process and elect legislators of their choice. 

{5) Evidence of historical racial discrimination with 

regard to voting is relevant to the question of defendant's 

intent because it affects the plaintiff class's present oppor- 

tunity to participate effectively in the electoral process. 

(6) Defendants have failed to rebut plaintiffs' evidence 

and have not shown that Act 20 was enacted exclusively for non 

racial reasons; rather the evidence was sufficient to establish 

that Act 20 was unconstitutionally enacted, at least in part, 

for the discriminatory purpose of limiting the opportunity of 

blacks to participate meaningfully or effectively in the 

political process and to elect legislators of their choice. 

(7) Section 2 of the Voting Rights Act applies to claims 

of discriminatory redistricting. Congress intended the Voting 

Rights Act to be broad charter against all systems and practices 

METRE  



that diminish black voting strength. In fact, the discrimina- 

tory potential of redistricting schemes was one of the prime 

concerns of Congress in enacting and extending the Voting 

Rights Act of 1965. 8S. Rep. No. 94-295, 94th Cong., 18t Sess. 

16-17 (1975); S. Rep. No. 97-417, 97th Cong., 2d Sess. 6, 30 

n.120, "12 n.317, 

(8) The Court finds that defendants have violated 

Section 2 of the Voting Rights Act. Proof of a purposeful 

discriminatory redistricting scheme by direct or circumstantial 

evidence is sufficient to establish a violation of Section 2. 

(9) Proof of a purposefully discriminatory redistricting 

scheme, however, is not essential for plaintiffs to prevail 

under Section 2 as amended June 29, 1982. The amendments to 

Section 2, which apply to this case, enable plaintiffs to 

establish a statutory violation upon showing only that the plan 

has a discriminatory result. Plaintiffs have shown that Act 20 

does result in discriminatory vote dilution. Based on the 

totality of circumstances surrounding the history of discrimi- 

nation in Louisiana, the lingering effects of that history, the 

existence of racial polarization in the electorate, the existence 

of other barriers to full participation by black voters includ- 

ing the state majority vote requirement and the depressed 

socio-economic condition of black citizens in Louisiana in 

general and the New Orleans metropolitan area in particular, 

this Court concludes that Act 20 has a discriminatory result  



that is impermissible under Section 2 of the Voting Rights Act 

as amended. This Court need not reach, therefore, the question 

whether Act 20 was an intentional gerrymander. 

(10) In order to show that Act 20 has a discriminatory 

result in violation of Section 2 as amended, plaintiffs need 

only prove that Act 20 submerges the voting strength of black 

voters in the New Orleans metropolitan area. Plaintiffs have 

met their burden of proving this result by demonstrating the 

dilutive effect of Act in the context of the existence of a 

racially polarized electorate. 

(11) Moreover, Act No. 20 violates Section 2 of the 

Voting Rights Act of 1965, as amended, June 29, 1982, because 

it perpetuates, and fails to remedy, the present effects of the 

pre-existing purposeful and intentional denial to blacks in 

Louisiana of equal access to and participation in the political 

process. 

(12) Act No. 20 is unconstitutional and violates the 

Thirteenth, Fourteenth and Fifteenth Amendment guarantees 

because it perpetuates, and fails to remedy, the present effects 

of historical and official discrimination against blacks in 

Louisiana. Kirksey v. Board of Supervisors of Hinds County,   

554 F.2d 139 (5th Cir. 1977) (en banc), cert. denied, 434 U.S.   

968 (1977). On this record, the Court has "not merely the power 

but the duty to render a decree which will as far as possible 

eliminate the discriminatory effects of the past as well as bar 

YB ly  



like discrimination in the future." Louisiana v. United   

States, 380 U.S. 145, 154 (1965). 

(13) Defendants erroneously rely on the decision by the 

Department of Justice to preclear Act 20 when it was submitted 

for review pursuant to Section 5 of the voting Rights Act. The 

fact that the Assistant Attorney General, United States Depart- 

ment of Justice sent a letter of no objection regarding 

Act 20 is irrelevant to this case. The standard of review 

under Section 5 is different than the standard of review that 

this Court must follow. Moreover, the review of Act 20 by the 

Assistant Attorney General was unreliable, highly irregular and 

conducted under circumstances that do not indicate trust- 

worthiness. The section 5 review was conducted ex parte as a 

nonadversary proceeding from which plaintifffs were, at key 

points, excluded. The decision of the Assistant Attorney 

General not to object to Act 20 was inconsistent with the 

investigation, factual findings and recommendations of the 

staff experts and was made for partisan and personal reasons 

that were contrary to the purposes of the statute and the 

regulations of the Department. The preclearance decision is 

entitled to no weight whatsoever. 

(14) This Court holds that the State of Louisiana has an 

affirmative duty to draw congressional districts that fairly 

recognize the voting strength of the minority community. 

See In Re: Illinois Congressional Districts Reapportionment   

Cases, No. 81 C 3915, slip. op. (N.D. Ill. 1981), aff'd. sub.   

Ee  



Nom. Ryan v. Otto, 102 S.Ct. 985 (1982); Rybicki v. State of 
    

Board of Elections, No... 81 C 6030 (N.D. 111.  Jan.. 12, 1982). 
  

(15) In granting relief from unlawful discriminatory 

governmental action, it is the Court's duty not only to prohibit 

the continuation of discriminatory actions and require develop- 

ment of non-discriminatory procedures, but also to grant 

effective affirmative relief from the present effects of past 

discrimination. 

(16) Approoriate measures of race-conscious affirmative 

injunctive relief from the effects of unlawful discrimination 

offend neither the United States Constitution nor the Voting 

Rights Act. Indeed, race-conscious remedies may, and in some 

instances must, be imposed under the Voting Rights Act, §§ 1981 

and 1983, and the Thirteenth, Fourteenth and Fifteenth Amend- 

ments to eradicate the effects of official discriminatory 

policies and practices. See, United Jewish Organizations v. 
  

Carey, 430 U.S 149 (1977); NAACP v. Allen, 493 F.2d 614, 617-21   

{5th Cir. 1974). 

(17) Section 2 of the Voting Rights Act of 1965, as 

amended, requires this Court to order whatever relief is 

necessary to remedy completely the discriminatory results of 

Act No. 20 and to recognize the voting strength of blacks in 

the New Orleans metropolitan area.  



(18) The plaintiffs are entitled to an award of costs, 

necessary expenses of the litigation, and reasonable attorney's 

fees, as provided by 42 U.8.C. $5 1973 1(e) and 1988. 

Respectfully submitted, 

R. JAMES KELLOGG 

WILLIAM P. QUIGLEY 

STEVEN SCHECKMAN 

STANLEY A. HALPIN 

631 St. Charles Avenue 

New Orleans, Lousiana 70130 

504/524-0016 

LANI GUINIER 

10 Columbus Circle 
Suite 2030 
New York, New York 10019 

Attorneys for Plaintiffs 

 



CERTIFICATE OF SERVICE 
  

I certify that a copy of the foregoing document has been 

served upon counsel for all parties to this proceeding, by 

mailing the same to each by first class United States Mail, 

properly addressed and postage prepaid, on this day of 

May, 1983, 

ATTORNEY FOR PLAINTIFFS