Post-Trial Memorandum

    UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA 

BARBARA MAJOR, ET AL CIVIL ACTION 

Plaintiffs : NO. 82-1192 (C) 

VERSUS 

DAVID C, TREEN, ET AL MAGISTRATE DIVISION 5 

Defendants 

  

POST~-TRIAL MEMORANDUM 

MAY IT PLEASE THE COURT: 

J. INTRODUCTION 

After four days of trial and numerous witnesses the 

of this matter was concluded. As we contended in our 

memorandum and, i fact, as we have contended throughout 

os C case of equal access to th 

the question whether, 

stitutional law, the Legislature should have consciously 

created a black congressional district. It is true 

black majority congressional district was not created when the 

Louisiana Legislature met in the Fall of 1981 to reappcrtion 

the congressional districts of the State in accordance with 

1980 Census. We submit, however, that fact is not proof of 

discrimination nor is it proof of a resulting dilution of 

As the Court in Brantlev v. Brown, 
  

1982) so pcintedly Observed: Pp p!  



"nr 
It simply must be recognized that an appor- 

tioning body could be totally receptive to 
the interests of the black community and 
still rationally decide that the creation of 
the sort of "safe" districts which the 
plaintiffs desire in this case would not be 
in the long term interest of that communi- 
ty. As Chief Justice Burger noted in United 
Jewish Organization v. Carey, 430 U.S. 144, 
186, 97 §.,0t, 996, 1020, 3. L.Ed24 229 
(1977) (dissenting opinion), the creation of 
safe districts 'tends to sustain the exis- 
tence of ghettos by promoting the notion 
that political clout is to be gained or 
maintained by marshaling particular racial, 
ethnic or religious groups in enclaves. It 
suggests to the voter that only a candidate 
of the same race, religion, or ethnic origin 
can properly represent that voter's inter- 
ests, and that such candidate can be elected 
only from a district with a sufficient 
minority concentration’ 

  

A rational nondiscriminatory legislature 
could also recognize the fact that 'the very 
idea of stacking districts so as to achieve 
a particular result tends to undermine the 
democratic process in general by making 
representatives less sensitive to shifts in 
public opinion'." 550 F.Supp. 490, 496 
{S.D. Ga. 1982) 

When this trial first began we started by reminding 

the Court of that important statement by Judge Bowen in 

Brantley v. Brown. We end this proceeding by underscoring 
  

those comments because we respectfully submit that the comments 

of Judge Bowen nust be kept in focus while Your Honors consider 

your decision in this case.  



During the. course of the trial Judge Politz noted that 

a consideration for the Court is whether the Legislature, dur- 

ing the redistricting process, did what would "do"? Stated 

another way, does Act 20 of 1981 reflect a fair exercise of the 

legislative process? What is the real world of redistricting? 

What complicated dimensions, what stressful conditions, ought 

the Court take into account in measuring the constitutional 

vitality of Act 202 

We believe that the process of congressional redis- 

tricting cannot be dehumanized; redistricting simply cannot be 

regarded as an endeavor within a sterile universe as one would 

design a computer game. Plaintiffs’ expert, Gordon Henderson, 

can draw a plan on a computer but such a plan has little mean- 

ing if it ignores the human and political elements of redis- 

ricting. 

Redistricting, by its nature, involves people, egos, 

vested interests of an incalculable variety, a puzzling maze of 

boundaries, and the competition of political biases. In short, 

it involves conflict resolution set against the high standards 

of one of civilization's most important documents. The United 

States Constitution. It is no easy task for advocates or 

judges to reconcile the strains of the real world ofirediv- 

tricting with the constitutional imperatives that redistricting  



must satisfy, The most important of those imperatives upon 

which Act 20 centers is the question of non-dilution of 

minority voting strength in Louisiana and, more particularly, 

in New Orleans. Other components of the equation will be 

placed in perspective in this discussion. They are, according 

to the evidence, the requirements of one person one vote, con- 

tiguity or compactness, allegiance to traditional boundaries, 

and the proper role incumbency should play in the redistricting 

process. 

In the final analysis, we respectfully submit that the 

Legislature did a fair job of balancing all of those competing, 

agonizingly competing interests and that Act 20 satisfies the 

constitutional test. 

Il. THE TEST 

Overlaid upon the issue of whether Act 20 is constitu- 

tionally sound, is the pivotal issue of whether or not minori- 

ties have equal access to the political process? That question 

must be answered to the satisfaction of the Court because it is 

the lynchpin of Section 2 of the Voting Rights Act. Intimately 

related to the answer to the question of the equal access of 

minorities to the political process is the extent to which 

blacks have been elected to public office here. Any reasonable 

analysis of the evidence in this case teaches that blacks have  



not only equal, but high, access to political office here and, 

therefore, evidence of the participation of blacks in the 

political process in this area should compel the Court to find 

that minorities have equal access to the political process and 

that Act 20 is, therefore, constitutionally sound. Act 20 did 

not give black citizens everything the Black Caucus was press- 

ing for during the redistricting process. It did not create a 

majority black district. But Act 20 did not create districts 

which would prevent the election of a black candidate, espe- 

cially in District 2, and possibly even in District las it is 

structured under Act 20. 

The evidence clearly shows that blacks have equal 

access to the political process in New Orleans. The Court 

should not be fooled by the Plaintiffs' catch-22 argument. The 

Plaintiffs' would boot-strap the argument that because there is 

racial polarization among black voters in New Orleans, a black 

can only represent a black and that the high presence of black 

elected officials in New Orleans is significant not because of 

the white cross-over vote which elected those individuals, but, 

rather, because of a form of racial polarization which Plain-. 

tiffs would have this Court maintain in the name of creating a 

majority black district. The defense, on the other hand, 

respectfully submits that the evidence strongly infers that the  



political conditions which one finds here in New Orleans as 

applying to black office holders is the result not of racial 

polarization but of a significant and influential white 

cross-over vote which proves that blacks do indeed have equal 

access to the political process. What the computers say is one 

thing; what the political realities of life in New Orleans are 

is quite another. 

In order to fully understand how Act 20 came about, it 

1s necessary to return to the 1981 Special Session of the 

Legislature. 

III. THE SUMMER OF 1981 AND THE LEGISLATIVE PROCESS 

Let's look for a moment at the conditions which con- 

fronted the Legislature in the Summer of 1981 when congres- 

sional reapportionment became a distinct obligation of the 

Louisiana Legislature. 

District 1 was not malapportioned. It was only 

slightly in excess of 2,000 votes within the one man one vote 

injunction and, if any change was at all necessary, that change 

could have been brought about by the shifting of merely one 

precinct. On the other hand, and something the Court should 

bear in mind throughout, District 2 was short of approximately 

63,000 people; it was malapportioned by a negative 12.27%. Its 

neighbor, District 3, had too many people, approximately 45,000  



too many people; it was malapportioned by a +8.68% and needed 

to lose people. Difficulties arose because District 3 is pre- 

dominantly white and it was not possible to simply remove popu- 

lation from District 3 and add it to District 2 without reduc- 

ing the percentage of black population in District 2. These 

facts were undisputed at trial. Against that backdrop, and 

further complicating the process, was the condition of District 

8 which was malapportioned. Adding to the spiciness of the 

process, is the fact that Representative John Scott, an 

activist in the Legislature who was very much involved in the 

redistricting process, lives in ‘District 8 and was perceived as 

striving to carve out a district for himself which would enable 

him to beat Congressman Long, who represents District 8. If 

that were not enough, the Legislature also had to consider the 

strong influence in the process of the politics of Jefferson 

Parish; it is undeniable in this record that nearly every 

important elected official in Democrat-controlled Jefferson 

Parish was seeking to carve out a district in the Third 

District in which Jefferson Parish would be the dominant 

political factor, all to the threat of Congressman Livingston, 

a Republican. Finally, New Orleans has had two congressional 

representatives since 1843, and the Jefferson Parish 

politicians, led by a potent political power, Assessor Lawrence  



Chehardy, were seeking to undo that strong influence. Balanced 

against all of those strongly present political factors, was 

the Legislature's obligation not to dilute minority voting 

strength. 

We make no apology for the Louisiana Legislature. 

Those conditions are certainly not unique to Louisiana or any 

other Legislature facing the redistricting process. But they 

reflect the real world. They speak to what one witness, 

Michael Baer, Secretary of the Louisiana Senate, called the 

difference between the textbook and the street. (Transcript of 

Proceedings, March 9, 1983, pgs. 83-84). What we characterize 

is the difference between computers and people. 

The Court must also recognize that Orleans Parish was 

toc big to be one congressional district. If that were not the 

case, the solution to create a majority black district would 

have been easy. Thus the Legislature found itself in the posi- 

tion of creating district lines which had to pay the proper and 

justifiable recognition of the need to enhance the black popu- 

lation in metropolitan New Orleans, where it was largely con- 

centrated, and at the same time balance all of those conflicts 

that Judge i Observed on the Wednesday morning of the 

trial were “stirring” around. It simply was not possible to  



deal only with District 2. All but one district was malappor- 

tioned after the 1980 Census. The Legislature couldn't just 

take people from District 3 and put them in District 2 because 

that would have reduced the black population in District 2 and, 

further, because of the ripple effect which the Court observed 

would have taken place throughout the other districts in the 

State. 

Let's look at what happened in the legislative process 

itself. 

As Mr. Baer testified, the staff had access to many 

plans. None attempted to diminish the black population or 

minority voting strength. In addition, the Governor, as was 

his political responsibility and perogative, suggested plans of 

his own, as did the Congressional Delegation. True, the 

Governor's many plans, and the plan of the Congressional Dele- 

gation, had political dimensions (as did the most significant 

of the plans to which the staff had access, the Nunez Plan). 

In spite of the political dimension of the Governor's plans, it 

is undisputed that the Governor was conscious of the need not 

to dilute the minority population. (Transcript of Proceedings, 

March 10, 1983, pg. 7). Also undisputed is the fact that the 

Congressional Delegation's plan reflected the concerns of 

Congressman Long, Congressman Livingston, Congressman Tauzin  



. 

and Congresswoman Boggs. They each had their own political 

agendas, not unlike Mr. Chehardy and those in Jefferson Parish 

who sought to create a district which would be dominated by 

Jefferson Parish. 

The plan which surfaced was also a political plan, the 

Nunez Plan. Although Nunez purported to create a majority 

black district in Orleans, the Governor could not, for clear 

and understandable political reasons, offer that plan his sup- 

port. Nunez was not a plan to create -a black majority district 

in New Orleans. It was conceived, nurtured, and given an 

opportunity to flourish, by the political designs of politi- 

cians in Jefferson Parish led by Assessor Lawrence Chehardy to 

create a district in which Jefferson Parish would be the domi- 

nant force. Although there is no direct evidence in the 

record, a reasonable inference of the consequences of the Nunez 

Plan is that it was conceived as a threat to Republican 

Congressman Robert Livingston. (Transcript of Proceedings, 

March 10, 1983, pgs. 281-83). Nunez was the product of 

Lawrence Chehardy, a mighty Jefferson Parish political leader, 

and Michael Baer, Secretary of the Senate, former counsel to 

Governor Edwards (Governor Treen's most prominent opponent), 

and law partner of another counsel to Governor Edwards, Mr. 

Camille Gravel. Without attaching any intentional evildoing, 

   



the politics of Mr. Chehardy and Mr. Baer would be hard for 

them to ignore as Nunez took form. And they created Nunez by 

their own admissions. (Transcript of Proceedings, March 9, 

1983, pgs. 9-10, 58, and 81). 

A majority black district was not the motivation of 

the Nunez Plan. Black legislators had no role in drafting it. 

(Transcript of Proceedings, March 8, 1983, Pg. 38); black 

legislators were more interested in House and Senate reappor- 

tionment (Transcript of Proceedings, March 8, 1983, pgs. 38 & 

217). A majority black district was -an ingredient in the 

political quotient of the plan only insofar as it was a reflec- 

ion of the aspirations of its creators to give Jefferson 

Parish a congressional district. And it took one congressional 

representative from New Orleans to give Jefferson Parish a 

representative who would more likely be influenced by that 

parish, thereby recognizing a good faith disagreement among 

politicians and political scientists alike: whether or not it 

is better to influence one congressional representative or have 

access to two representatives, as was the case in New Orleans 

traditionally since 1843? Representative Mary Landrieu, a 

Nunez supporter to the end recognized the validity of that 

argument (Transcript of Proceedings, March 9, 1983, pg. 49). 

Assessor Chehardy believed it was better to influence one than  



have access to two, a belief consistent with his own political 

agenda (Transcript of Proceedings, March 9, 1983, Pg. 23). 

Professor Richard Engstrom, a political scientist expert who 

testified on behalf of Plaintiffs, quite candidly stated that 

for him there was no definitive answer to that dilemma (Tran- 

script of Proceedings, March 8, 1983, pgs. 166; 168-170). 

IV. THE NUNEZ PLAN 

On its surface the Nunez Plan had every socially 

redeeming quality which well-intentioned people would want for 

District 2 in the reapportionment process: a majority black 

district. But below its surface simmered serious political, 

not social, impediments. Nunez, according to Mr. Chehardy him- 

self, the chief political author of Nunez, would radically 

change Districts 1, 2 and 3. Nunez reflected the unstated 

political agenda for Jefferson Parish politicians according to 

Mr. Chehardy (Transcript of Proceedings, March 9, 1983, Dg. 

8) It triggered a hot but good faith debate about the advan- 

two congressional representatives for New Orleans as 

to one. It reflected a microcosm of legislative con- 

troversy: the Governor was against Nunez in part because he 

felt, according to his experience as a former Member of 

Congress, that New Orleans would be better served by input to 

two representatives (Transcript of Proceedings, March 10, 1983,  



Pgs. 6 and 21). Representative Mary Landrieu, a Nunez sup- 

porter, respected the argument on both sides (Transcript of 

Proceedings, March 9, 1983, pgs. 49 and 55). Representative 

Leo Watermeier, who represents a 52% black district in the 

Legislature, was opposed to Nunez because he believed it was 

better for New Orleans, in his experience, to have access to 

two congressional representatives (Transcript of Proceedings, 

March 8, 1983, pg. 281). This sentiment was echoed by Speaker 

Hainkel (Transcript of Proceedings, March 8, 1983, pgs. 208 and 

217) and Representative Bruneau (Transcript of Proceedings, 

March 8, 1983, pgs. 235-36). And Congressman Robert 

Livingston, told this Court of the financial benefits Hew 

Orleans reaped by having two Members of Congress fighting for 

New Orleans (Transcript of Proceedings, March 10, 1983, pg. 

296). 

Governor Treen did not refuse to support Nunez for 

reasons which can even inferentially be attributed to a desire 

to diminish minority voting strength in the metropolitan area 

of New Orleans. He was combatting the patent politics of 

elected politicians in Jefferson Parish and he said so can- 

didly. He disagreed philosophically with those who argued that 

New Orleans should only have access to one congressional repre- 

sentative, and he said so (Transcript of Proceedings, March 10, 

1983, pg. 6).  



The Governor conscientiously tried to enhance poten- 

tial minority voting strength in New Orleans. His first pro- 

posals, Plans A, B, and C, increased District 2 from a black 

population of 40.7% to 43.5% (Transcript of Proceedings, March 

10, 1983, pgs. 8 and 16). His reconciliation plan, known as 

Plan X, which was unacceptable to politicians in Jefferson 

Parish, further sought to increase black population in District 

2 to nearly 45% (Transcript of Proceedings, March 10, 1983, pg. 

28). Act 20 arose out of that conflict in a spirit of neces- 

sary and understandable good faith political compromise and 

District 2 ended up with 44.5% black population, only slightly 

less than what the Governor intended under his reconciliation 

plan. District 1 slightly lost black population to District 2. 

(Transcript of Proceedings, March 10, 1983, pgs. 8-10; 28-29). 

It lost less than it would have lost under the Nunez Plan, 

along with five other districts, which reduced the black popu- 

lation of those districts beyond Act 20's treatment (Transcript 

of Proceedings, March 7, 1983, pgs. 88-90: March 8, 1983, pg. 

49). And Congressman Livingston was dissatisfied because he 

didn't want to change his district and lose any of his black 

population which was formerly 36.5% (Transcript of Proceedings, 

March 10, 1983, pg. 280). 

Important facts in that tug of war should not be lost 

sight of in the rhetoric of this trial:  



One of the Governor's clear priorities was to increase 

and enhance the black population in District 2 while balancing 

all of the other problems discussed above; he said so publicly: 

and he did so in each plan he submitted (Transcript of Proceed- 

ings, March 10, 1983, pgs. 5-7); Nunez had only one goal, to 

give Jefferson Parish a dominant district, and create only as a 

by-product, a black majority district (Transcript of Proceed- 

ings, March 9, 1983, pgs. 11, 25). In the beginning, the 

Governor was not concerned with incumbency. At the end he 

became concerned with the problems of Congressman Livingston 

because of the patent attempt of Jefferson Parish politicians 

to tailor a seat which would be more closely attuned to them 

and because the Nunez Plan would have created a First Congres- 

sional District that had 75% new territory (Transcript of Pro- 

ceedings, March 10, 1983, pg. 6, 20). In the end, and for all 

of those reasons, the Governor was required to indicate to the 

Legislature that he would veto a plan in the form of Nunez if 

it came to him. 

V. THE VETO 

Where does the suggestion of veto fit in a 

consideration of the constitutional soundness of Act 20? 

The suggestion of veto is hard to figure because of 

our perception of the power of Louisiana governors. But the  



most candid and disinterested response came directly from 

Representative Mary Landrieu, a supporter of Nunez to the very 

last vote; she said that the suggestion of veto had no effect, 

and her testimony was unshaken throughout (Transcript of 

Proceedings, March 9, 1983, pgs. 46, 48). The Legislature is 

more independent now, she said. A notion echoed by the Speaker 

of the House, Representative Hainkel and others (Transcript of 

Proceedings, March 8, 1983, pgs. 218-222; Transcript of 

Proceedings, March 8, 1983, pgs. 275-276). Partisan responses 

of the Plaintiffs say the suggestion of veto killed Nunez. Mr. 

Baer says it, but his politics came to the surface when he 

testified. Representative Mary Landrieu disagrees, even though 

her politics were always out in the open. More importantly, 

Mr. Chehardy's candid testimony is noteworthy. He believes 

politics killed Nunez. He would not say that the threat of 

veto is what did it (Transcript of Proceedings, March 9, 1983, 

Politics, according to Mr. Chehardy, killed Nunez 

because the Plan involved too much change in Districts 1, 2 and 

3. In fact, Mr. Chehardy told this Court that Nunez got 

farther than he thought it ever would get (Transcript of 

Proceedings, March 9, 1983, pg. 15). 

Governors of Louisiana are certainly powerful, but not 

all-powerful. It is style and use of power which determines  



  

the efficiency of that power. Thus, only the most partisan 

kind of speculation could argue that the threatened veto, if it 

had ever occurred, could not have been overturned. It is 

important for the Court to remember the vote in both Houses on 

the Nunez Plan. The Senate vote already contained a two-thirds 

majority, strong enough to overturn any veto if indeed it had 

ever occurred because the Senate voted in favor of Nunez 31 to 

6. The House vote passed Nunez by a majority which -lacked 

two-thirds by only nine votes and six of those nine votes were 

absent the day of the vote (Transcript of Proceedings, March 9, 

1983, pgs. 94-95). There is nothing in this record which indi- 

cates that the leaders of the Nunez Plan were prevented from 

seeking to attract the six who were absent and change the minds 

of three others who had voted against Nunez when it was on the 

House floor. We respectfully submit that Plaintiffs' conten- 

tion that the Governor's threatened veto of the Nunez Plan 

killed it or that the threat of veto was in any way based upon 

an attempt by the Governor to diminish minority voting strength 

in metropolitan New Orleans is unwarranted and unsupported by 

credible evidence in the record. 

VI. GOVERNING STANDARD 

The law is clear that plaintiffs must prove purposeful  



discrimination in order to establish a violation of the Four- 

teenth and Fifteenth Amendments of the United States Constitu- 

. tion, and the Civil Rights Act. See Gomillion v. Lightfoot, 
  

364 U.S. 339, 81 S.Ct. 125, 5 L.Ed. 2d 110 (1960); Wright v. 

Rockefeller, 376 U.S. 52, 84 S.Ct, 603, 11 L.Ed. 24 512 (1964). 
  

Similarly, the Supreme Court has consistently held 

that with regard to the Fourteenth Amendment: 

"Only if there is a purposeful discrimina- 
tion can there be a violation of the Equal 
Protection Clause of the l4th Amendment. 
See, Washington v. Davis, 426 U.S. 229, 96 
S.Ct. 2040, 48 L.Ed. 24 597 (1976); 
Arlington Heights v. Metropolitan Housing 
Development Corporation, 429 U.S. 252, 97 

8.Ck, 555, 50 L,.B4, 24 439 (1377): and 
Personal Administrator v. Feeney, 442 U.S. 
256, 99 S.Ct, 2282, 60 L.BEd.2d 870 (1979). 

  

  

  

  

Prior to the passage of the 1982 Voting Rights Act 

Extension, it was clear that proof of discriminatory intent 

necessary to show a violation under Section 2 of the Voting 

Rights Act. See, City of Mobile v. Bolden, 446 U.S. 55, 66 
  

S.Ct. 1490 (1980). The reason is found in the 

15th Amendment. The 15th Amendment has long been recognized as 

requiring proof of intentional discrimination. See, Gomillion 

Vv. Lightfoot, 364 U.S. 339, 81 s.Ct. 125, 5 L.Ed. 2d. 110 
  

{1960); Wright v, Rockefeller, 376 U.5. 32, 84 S.Ct, 603, 11 
  

L.Ed. 28 3512 (1964).  



Indeed, when the Voting Rights Act was first passed, 

no less an authority than Attorney General Nicholas DeB. 

Katzenbach admitted that Section 2 of the Voting Rights Act was 

no more than a codification of the 15th Amendment. See, Voting 

Rights: Hearings on S 1564, Senate Judiciary Committee, 89th 
  

Congress, lst Sess., pt.l, pg. 208 (1965), 

The Supreme Court has consistenty and specifically 

recognized that Section 2 is no more than a rephrasing of the 

Fifteenth Amendment. In Bolden the Court held: 

"It is apparent that the language of Section 
2 no more than elaborates upon that of the 

15th Amendment, and the sparse legislative 
history of Section 2 makes it clear that it 
was intended to have an effect no different 
from that of the 15th Amendment. See, 446 

U.S. at 60-61, 64 L.Ed. 2d. at 54." 

The Bolden decision was not the first judicial recog- 

nition that Section 2 was a mere codification of the Fifteenth 

and Fourteenth Amendments. As the Court held in United States 
  

v. Board of Commissioners of Sheffield, 435, U.S. 110, 126-127 
  

{1978): 

"The Act, of course, is designed to imple-~ 
ment the Fifteenth, and in some respects, 

the Fourteenth Amendments." 

for a period of over 20 years, proof of discrim- 

+inatory 3 nt was essential, according to the Supreme Court  



and the legislative history of the Voting Rights Act. Indeed, 

the Supreme Court in Bolden said that: 

"Action by a state that is racially neutral 
on its face violates the 15th Amendment only 
if motivated by a discriminatory purpose. 
446 U.S. at 62, 64 L.B4d. 2d. at 55, 

Bolden was not a departure from prior case law. It 

was simply an extension of the Supreme Court decisions in White 

VY. Register, 412 U.S, 715%, 93 83.0. 2332, 37 L.E&. 24 314 
  

(1973) and Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 
  

L.Ed.2d. 363 (1971). In examining White and Chavis, the Bolden 
  

Court held: 

"To prove such a [discriminatory] purpose, 
it is not enough to show that the group 

allegedly discriminated against has not 

elected representatives in proportion to its 
numbers. A plaintiff must prove that the 
disputed plan was conceived or operated as a 
purposeful device to further racial . . . 
discrimination [citing Whitcomb v. Chavis], 
446 U.S. at 66, 64 L.Ed. 2d. at 58, 

  

Subsequent to the 1965 Voting Rights Act, the lower 

courts, in deciding voting rights cases, failed to follow the 

admonitions of the Supreme Court and, in some instances, con- 

sidered not the intent of the decision maker in determining 

constitutionality but, rather, focused on the effect of the 

legislation on the minority in question. Thus, was born the  



"n 
intent v. effect" dichotomy. However, whatever the decisions 

of the lower courts were, it is clear that the United States 

Supreme Court consistently applied an intent test to dllega- 

tions of unconstituionality under the Voting Rights Act. 

Considering this history, what did the Voting Rights 

Act Extension of 1982 do? 

VII. THE VOTING RIGHTS ACT: IS THE 1982 EXTENSION 
CONSTITUTIONAL? 

The plaintiffs contend that the Voting Rights Act 

changed the intent test espoused by the Supreme Court and by 

the original authors of the Voting Rights Act to a "result". 

test. Plaintiffs do not contend that proof of intent is not 

still necessary to prove a violation of the Fourteenth or Fif- 

teenth Amendments, or the Civil Rights Act. They only claim 

that the Voting Rights Act now requires a different standard of 

proof. Thus, it is Plaintiffs' contention that somehow Section 

2, which is the statutory codification of the Fifteenth 

Amendment, has taken on a life of its own and now requires. a 

standard of proof different from the source of Section 2, the 

Fifteenth Amendment. The Plaintiffs contend that the legisla- 

tive history of the 1982 Amendment supports that view. 

Not only is the legislative history thoroughly confus- 

ing: but more importantly, it is irrelevant to the issue of  



whether the Congress can change or modify a constitutional 

standard by enacting a statute. 

As was held in the case of Community Service 
  

Broadcasting v. P.C.C., 5923 P.2¢ 1102, 1113 (p.Cc.C. 1973): 
  

"To be sure, Congress is generally free to 
change its mind; in amending legislation 
Congress is not bound by the intent of an 

earlier body. But it is bound by the 
Constitution.” 

The Constitution gives Congress the right to enforce 

the Fourteenth and Fifteenth Amendments, (which undisputably 

require intent), "by appropriate legislation." See, §5, Four- 

teenth Amendment to the Constitution; §2, Fifteenth Amendment 

to the Constitution. See also, Oregon v. Mitchell, 400 U.S. 
  

112, 126 (1970). Indeed, the seminal examination of the ori- 

gins of the Civil War Amendments is found in Mr. Justice 

Harlan's eloquent opinion in which he concurred in part and 

dissented in part. See, 400 U.S. at 151-230. Mr. Justice 

Harlan, in great detail, discussed the Fourteenth and Fifteenth 

Amendments and their progeny, the Voting Rights Act. He con- 

cluded that the Civil War Amendments did not give Congress the 

unfettered right, under the Voting Rights Act, to mandate the 

reduction of the voting age from 21 to 18 in the state elec- 

tions ( a result reached by a majority of the Court). In that 

respect he concluded that:  



“...in §302 of the Voting Rights Act Amend- 
ments of 1970 Congress exceeded its dele- 
gated powers." 400 U.S. at 213. 

Mr. Justice Harlan's concerns about tampering with 

fundamental constitutional principles was most recently echoed 

in Chief Justice Burger's dissent (in which he was joined by 

Justices Powell, Rehnquist and O'Connor) in Equal Employment 
  

Opportunity Commission v. Wyoming, U.S. +. 51 L.W. 4219 
  

(March 2, 1983). That case involved the constitutionality of 

the Age Discrimination in Employment.Act as it related to state 

and local governments. 

In dissenting from the Court's approval of extension 

of coverage of the Act to State Agencies, the Chief Justice 

Observed: 

"Allowing Congress to protect constitutional 
rights statutorily that it has independently 
defined fundamentally alters our scheme of 
government. Although the South Carolina wv. 
Katzenbach line of cases may be read to 
allow Congress a degree of flexibility in 
deciding what the Fourteenth Amendment safe- 
guards, I have always read Oregon v. 
Mitchell as finally imposing a limitation on 
the extent to which Congress may substitute 
its own judgment for that of the states and 
assume this Court's "role of final arbiter," 
Mitchell, at 205 (Harlan, J., dissenting). 
Mitchell, after all, involved legislation in 
the area of suffrage, where Congress had 
special competence and special reasons to 
limit the powers of the states. It is sig- 
nificant, however, that while we there sus- 
tained the portions of the Voting Rights Act 

  

 



of 1970 lowering the minimum age of voters 
from 21 to 18 in federal elections, barring 
literacy tests in state and federal elec- 
tions, and forbidding states from disquali- 
fying voters in presidential elections for 
failure to meet state residency require- 
ments, a majority of the Mitchell Court did 
not agree to allow Congress to alter voting 

requirements in state elections. We struck 
that portion of the Voting Rights Act 
because we thought it a "plain fact of 
history" that Congress lacked this power, 
see id., at 125 and 294 (Black and Stewart, 
JJ.)7 id., at 154-215 (Harlan, J.): and 
because we thought that the Fourteenth 

Amendment was not a license to "overstep the 
letter or spirit of any constitutional 
restriction.” 

’ 

By analogy, what right or power does the Congress have 

to alter the standard of proof in voting rights cases which has 

been 1in force and recognized since passage of the Act? We 

submit it has none. If the authority for the Voting Rights Act 

is the Civil War Amendments, which require intent, then the 

standard for §2 suits must also be intent. Indeed, the Civil 

Rights Act (42 U.8.C., $1981, et. seqg.), which is also based 

upon the Thirteenth, Fourteenth and Fifteenth Amendments has 

always required an intent standard. See, Castaneda v. Pickard, 
  

648 F.2d 989 (5C 1981): Craig v. Los Angeles County, 626 F.2d 
  

659 (9C 1980); cert. den. 101 S.Ct. 1364. Congress has the 

power to enforce the guarantees of the Fourteenth and Fifteenth 

Amendments. Those Amendments have always required proof of  



intentional discrimination. To the extent the 1982 Voting 

Rights Act Extension requires otherwise, it is an improper 

exercise of congressional power. 

The constitutionality of the Voting Rights Act has 

also been questioned by no less an authority than the Honorable 

Sam J. Ervin, Jr., See Hearings Before the Subcommittee on the 
  

Constitution of the Committee on the Judiciary, pgs. 133-151. 
  

Senator Ervin's concern about the constitutionality of the Act 

echoes the Chief Justice's concern in -EEOC v. Wyoming. is 
  

Senator Ervin's opinion that the Act -substantially deprives the 

states of their basic constitutional rights flowing from the 

Tenth Amendment; a concern that was first raised by Mr. Justice 

Black in his dissenting opinion in South Carolina v. 
  

Ratzenbach, 383 U.S, 301, 355 (1966). In view of this issue, 

at a minimum, we respectfully submit that the only appropriate 

standard that can be employed in a §2 case is an intent to 

discriminate. 

VIII. LEGISLATIVE HISTORY OF THE 1982 ACT: A RETURN TO 

WHITE V. REGISTER? 
  

What is most curious about the legislative history 

surrounding the 1982 Act is the fact that not only did Congress 

overstep its bounds hy attempting to ignore the constitutional 

mandate of the Civil War Amendments and the Supreme Court, but 

   



even the strongest supporters of the Extension viewed it as a 

return to White v. Register, supra. See, Statement of Senator 
  

  

Kennedy, Hearings before the Subcommittee on the Constitution 
  

of the Committee of the Judiciary, page 218, wherein the 
  

Senator from Massachusetts stated: 

"Let me just say that what basically we are 

attempting to do with our proposal (Exten- 

sion of the Voting Rights Act) is restore 
the rule of law as it was in the White deci- 
sion.” 

This view was echoed by the Bill's co-sponsor, Senator Mathias 

on the Senate floor. (Senate Proceedings pg. S-6964) See 

also, Statement of Joaquin G. Avila, Associate Counsel, Mexican 
  

American Legal Defense and Education Fund, page 564 wherein Mr. 

Avila stated: 

"We are asking merely for a return to the 
White v. Register standards." 
  

Against this background what does White v. Register 
  

say? White v. Register was an Equal Protection case, a Four- 
  

teenth Amendment case. It was decided on the basis of whether 

there was an intent to discriminate. Bolden is simply an 

extension of White v. Register. It was not a departure from 
  

the law. Both cases require proof of discriminatory intent. 

It is true that White v. Register speaks in terms of 
  

the "totality of circumstances", 412 U.S. 769 and that language  



is contained in the amended §2 but what is important is that 

White was concerned about whether there was invidious discrimi- 

nation. We do not argue that one should not look to the total- 

ity of the circumstances. Indeed, in Rogers v. Lodge, 
  

JS. + 102 8,Ct., 3272, 73, L.EG. 24 1012 (1982), decided 

after the 1982 Extension, the Supreme Court looked at the 

totality of circumstances in order to determine whether there 

was purposeful discrimination. Rogers holds under the Equal 

Protection clause, that elements to be considered in looking 

for the absence of discriminatory or purposeful intent are: 

the election of minority members to public offices, the partic- 

ipation of minorities in the political process, and other fac- 

tors of that nature. Section 2 now contains similar language. 

Rogers supports an intent test. 

After the 1982 Extension, the lower courts appeared to 

be split. In Rybicki v. State Board Elections, Civil Action 
  

No. 81C-6030 (N.D.IY. 1983, the court applied a results test. 

But in Brantley v. Brown, 550 F.Supp. 490 (S.D. Ga. 1982), the   

District Court applied an intent standard. At issue in 

Brantley was the election of members to a County Board of 

Education. In Brantley, preclearance was obtained by the Board 

of Education and suit was filed against the Board alleging 

discrimination. Although Brantley was filed under 42 U.S.C. 

   



§1983, the Brantley decision makes clear that under the Chavis, 

Arlington Heights, Davis and Rockefeller line of cases deci- 
  

  

sions, proof of discriminatory purpose is still required after 

the 1982 Extension of the Voting Rights Act. Brantley specif- 

ically recognized that the plaintiffs had to prove that the 

plan in question was: 

"conceived...as [a] purposeful device to 
further racial...discrimination..." 550 

F.Supp. at 494. 

We believe that intent is the proper standard to be 

employed in this case and the record in this case is barren of 

any intention to discriminate. There is not even a reasonable. 

inference of an intention to discriminate. Michael Baer testi- 

fied that the drafters attempted to enhance the black vote as 

much as possible, against the backdrop of the political drama 

which was unfolding (Transcript of Proceedings, March 9, 1983, 

pg. 60). Mr. Chehardy testified that politics, not race, 

brought down Nunez (Transcript of Proceedings, March 9, 1983, 

Pg. 15). Congressman Livingston wanted to keep his black vote 

and not change his district at all because he had served his 

constituents and worked hard for them for several years (Tran- 

script of Proceedings, March 10, 1983, pgs. 277-279). : Indeed, 

Congressman Livingston ‘has consistently gotten a substantial 

   



portion of the black vote in District 1. In 1980 he got 79% of 

the black vote and in 1982, with a black opponent he got 70% of 

the black vote. (Transcript of Proceedings, March 10, 1983, 

Pg. 279). Race played no role in the Governor's motivations 

(Transcript of Proceedings, March 10, 1983, pg. 7). In fact 

the Governor's own plans conscientiously, intentionally and 

continuously sought to increase the black population in 

District 2 as changes to his ideas and his plans emerged in the 

political process. His suggestion of veto addressed the 

conflicting political agendas of Jefferson Parish ahd the 

Governor, not the social agenda of black citizens or members of 

the Black Caucus. The only saspiatons ‘intarance was creates by 

the testimony of Mr. Turnley, who vowed that Mr. Delpit, a 

member of the reapportionment subcommittee, never received 

notice of the vote (but Mr. Delpit and Mr. Turnley were 

testifying on the Senate side that day and it is highly 
\ 

possible that Mr. Delpit never saw his notice). Under any : 

circumstances, the subcommittee contained several black members 

(Transcript of Proceedings, March 8, 1983, Pgs. 55-56). And 

‘where was Mr. Delpit during this trial? He did not come 

forward to testify. And Mr. Turnley could not point to any 

strong public statement that Mr. Delpit made decrying his lack 

of notice at the time it supposedly happened (Transcript of 

PP cali’  



  

Proceedings, March 8, 1983, pgs. 54-55). There is not one 

shred of reliable evidence to infer that what beat Nunez was a 

desire to keep a black out of Congress. Not even > 

Representative Mary Landrieu could or would say that under of 

cath. There is simply no proof of an intent to discriminate.in 

this case. 

IX. PROPORTIONAL REPRESENTATION, EQUAL ACCESS AND THE RESULTS 
STANDARD 

Although, we submit that under Brantley, intent is 

still the appropriate standard which governs all issues in this 

case, it is clear that only under Section 2 of he Voting 

Rights Act might a result test be applicable, and intent is a 

necessary component of plaintiffs' other alleged causes of 

action. In order for plaintiffs to recover under the l4th 

Amendment, 15th Amendment, or the Civil Rights Act, intent is 

still necessary. See, Rogers v. Lodge, supra.; Bolden, supra. 
  

If the Court decides that the "result" test now 

applies to inquiries regarding a violation of Section 2 of the 

Voting Rights Act, the Court must key in on whether or not Act 

20 results in the dilution of minority voting strength so as to 

deny blacks the opportunity to elect representatives of their 

choice. In other words, does Act 20 result in the abridgement 

or denial of the right of minority citizens to vote on account  



of race? Based on "the totality of circumstances" shown in 

this case, have plaintiffs proved that the political processes 

leading to nomination or election are not equally open, (not 

preferentially, but equally open) to blacks? See, Remarks of 

Senator Dole, Congressional Record S-7120. In answering those 

questions, the only objective standard which Section 2 of the 

Voting Rights Act mentions is the extent to which blacks have 

been elected to office. That is a pivotal inquiry for the 

Court to make and one which was treated extensively during the 

trial of this case. Finally, Section 2 would remind Your 

Honors that blacks are not entitled to proportional representa- 

tion in accordance with their numbers of population. The 

statute also specifically states that proportional representa- 

tion is not a requirement of the Voting Rights Act or the Fif- 

teenth Amendment. Indeed, Senators Mathias and Kennedy, as 

well as every other individual who testified before the Subcom- 

mittee on the Constitution agreed that proportional representa- 

tion was not the result of Section 2. See, Testimony of 
  

Senator Mathias; page 201, Written Statement of Senator   
  

Kennedy, page 233; Additional Views of Senator DeConcini and 
  

Senator Leahy on S.1992, The Voting Rights Act.   
  

The House, in enacting Section 2, spent one day, out 

of a total of 19 days of hearing discussing the proposed 

     



changes in Section 2. See, Statement of Congressman Hyde, page 
  

400. Representative Rodino, the Bill's sponsor, didn't even 

testify before the Committee. Proportional representation is 

not a constitutional imperative. It is not required by law. 

In fact, proportional representation has been consistently 

condemned. See, Bolden, supra; Report of the Committee on 
  

Judiciary, the Voting. Rights Act Extension of 1982, Pg. 33; 
  

White v. Register, supra.; Whitcomb v. Chavis, supra.; United 
  

  

Jewish Organization v. Carey, 430 U.S. 144; 97 S.Ct. 996, 351 
  

L.Ed.2d 229 (1977). Implicit in the outright rejection of 

proportional representation is the rejection of the idea of 

drawing districts based on race alone. 

Similarly, Bolden and Brantley v. Brown remind us that 
  

there is no requirement under the law to design a "safe" seat 

in order to uphold the constitutional soundness of Act 20. It 

is also important for the Court to remember that the question 

of incumbency is not an invidious consideration when 

considering the soundness of Act 20. A plan which draws 

district boundaries that "may have been drawn in a way that 

minimizes the number of contests between present incumbents 

does not in and of itself establish invidiousness." White v. 

Weiser, 412 US 783, 93 8.Ct. 2348, 37 L.Ead2d 335, 344 (1973).  



Focusing on the prospect for having a majority black 

district, Plaintiffs argue that incumbents got what they wanted 

and Jefferson Parish got what it wanted, but blacks got none of 

what they wanted. If one remembers that Nunez did not seek to 

create a majority black district, the result of Act 20 was that 

blacks got some of what they wanted, incumbents got some of 

what they wanted, and Jefferson Parish got some of what it 

wanted. And no one got everything that they wanted. That is 

not surprising in the legislative process and the efforts by 

Plaintiffs to portray the incumbents as greedy and district- 

grabbing is not supported in the record. 

Under the law, and in spite of whichever test applies, 

no citizen is entitled to proportional representation and no 

group is entitled to a "safe" seat. They are entitled to and 

must be assured equal access to the political process. 

We do not deny Louisiana's past history of discrimina- 

tion. We make no excuses for it, and we do not attempt to 

ignore past humiliations. But this case must be tested against 

conditions today. Remember as you sit in judgment, one ques- 

tion must be answered: Do blacks under the evidence in this 

record have equal access to the political process in the Metro- 

politan New Orleans area today? How have blacks done here in 

getting elected? And what do their continued prospects for 

   



successes look like under Act 20? The failure of Nunez is not 

as significant as the passage of Act 20 and what it does. Act 

20 should be considered on its own without regard to Nunez or 

any other plan which was offered during those hectic and 

conflict-ridden days. 

What does the evidence teach? 

It is tempting, but intellectually unsound, to suggest 

that the successes of blacks in politics in recent times is the 

result of racial polarization, not something else. And it is 

philosophically questionable, as plaintiffs' own expert Dr. 

Engstrom testified, to argue that because there is racial 

polarization and a bloc vote, only a black can represent a 

black. Dr. Engstrom felt most uncomfortable with that thesis 

(Transcript of Proceedings, March 8, 1983, pgs. 166-170). 

Section 2 of the Voting Rights Act instructs the Court 

to look at the extent to which blacks have been elected to 

public office for guidance in determining whether or not Act 20 

violates the Voting Rights Act on the ground that it dilutes 

minority voting strength. We respectfully submit that the 

Court cannot ignore the plain facts. The Mayor of New Orleans 

is black and was first elected to office in 1977 when the City 

had a black registered vote of approximately 42% . Under Act 

20, District 2 has a registered black vote of 39% right now 

-_ 

  
   



(Transcript of Proceedings, March 10, 1983, pg. 139). Mayor 

Morial was re-elected in March of 1982 in a city-wide election 

during which time, reaching the same group of voters, Paul 

Valteau, a black, was elected Civil Sheriff. Both men ran 

against strong white candidates. The Wimberly-Julien race 

destroys the underpinnings of Plaintiffs' argument that there 

is racial polarization in elections in New Orleans which some- 

how leads them to the conclusion that blacks are only elected 

by black voters and, therefore, a majority black district 

should have been created in Louisiana. At the same time that 

Mayor Morial and Mr. Valteau were being elected, and on the 

same day in March of 1982, there was a city-wide race for 

Criminal District Court Judge which pitted a strong black 

didate, Mr. Julien, against a strong white candidate, Mr. 

Wimberly. Mr. Wimberly, the white candidate, was elected 

the same time and in the same city on the same day that Mayor 

Morial and Mr. Valteau were being elected. Both of Mayor 

Morial's elections were determined by a strong white cross-over 

vote; his margin of victory in both races was less than the 

percentage of white vote he received in those races and it was 

the white vote which elected him. Both Mr. Selle and Professor 

Wildgen agree on that point (Transcript of Proceedings, March 

   



10, 1983, pgs. 140-142, 228-230). The same is true for Mr. 

Valteau's election. On the same day, it was the black 

cross-over vote which elected Mr. Wimberly against a strong 

black candidate, Mr. Julien, for Criminal District Court Judge 

(Transcript of Proceedings, March 10, 1983, pgs. 140-142, 

228-230, 236). But the New Orleans experience is not limited 

to those few elections. Look at Councilman-at-Large Sidney 

Barthelemy, who was elected in 1977 in an at-large race in the 

City: look at Judge Revius Ortique and Judge Israel Augustine; 

look at Criminal District Court Clerk Ed Lombard. All of those 

individuals are blacks who were elected to public office in 

this City in city-wide election running against white candi- 

dates. Section 2 says that if blacks are successful in getting 

elected, they have equal access to the political process. 

Plaintiffs argue that the number of elected black 

officials in New Orleans merely is a function of racial polari- 

zation, not equal access. They conveniently ignore, as did 

their expert Dr. Henderson, the phenomenon, effect and influ- 

ence of a strong white cross-over vote for a black candidate 

and the margin of victory which whites have systematically 

given to blacks for at least eight years here in New Orleans.- 

And they reject, regrettably, the fact that black citizens will 

support a white candidate over a strong black candidate, as  



happened recently in the Wimberly-Julien race, in which the 

black vote elected the white candidate (Transcript of Proceed- 

ings, March 10, 1983, pg. 140). They would have this Court 

believe that one cannot tell where the votes are, although 

Plaintiffs' own witness, Mr. Turnley, a seasoned legislator and 

long-time President of the Louisiana Black Caucus, destroyed 

that myth in his testimony. He could tell where the votes are, 

even without degrees in computers and political science! (Tran- 

script of Proceedings, Mach 8, 1983, pgs. 35-37) Plaintiffs 

would callously tell this Court that’their computer says racism 

is rampant in New Orleans among whites because they are preju- 

diced and among blacks because they are underprivileged; that 

there are not enough well-meaning people in New Orleans to make 

a difference; that only a black can adequately represent 

another black. We submit, believe, and trust that they are 

wholly in error. What have we brought to Your Honors that 

might bear on these serious questions? 

The white vote has twice provided Mayor Morial with 

the margin of victory needed to be elected in New Orleans (in 

1977 the voter registration was nearly identical to the voter 

registration under District 2 in Act 20). Nevertheless, Plain- 

tiffs infer that although a black mayor was elected in 1977 

when the black voter registration was strikingly similar to 

     



what it is now in District 2, it is unlikely that a black would 

be elected in District 2 as it is structured under Act 20. 

First, they conveniently ignore the testimony of Dr. John 

Wildgen, a political scientist who was called by the defen- 

dants, and a close colleague of one of Plaintiffs' own experts, 

Dr. Engstrom (Transcript of Proceedings, March 10, 1983, Pgs. 

238-239). Second, although Plaintiffs argue that the loss of 

white vote in the second Morial election is somehow a function 

of racism, they ignore other non-racist possibilities; namely, 

the traditional unpopularity of incumbent mayors and the disap- 

pointment of some supporters over the extent of patronage 

awards; conditions which Mayor Morial himself admitted could 

have had an influence in his second election when we took his 

deposition (Deposition of Mayor Ernest N. Morial, taken March 

3, 1983, pgs. 59-62). 

Consider the example of the election of Paul Valteau 

as Civil Sheriff. Plaintiffs would have this Court hide behind 

Dr. Henderson's computer, which depersonalizes meaningful races 

for political office in New Orleans and suggests that a black 

candidate who gets nearly 463% of the white vote when his margin 

of victory was only 8% is somehow a product of racial polariza- 

tion, not a result of the equal access of blacks to the politi=- 

cal process. If the white cross-over vote is significant in 

   



the context of this case,’the black cross-over vote is equally 

significant. Witness the victory of Judge Wimberly against Mr. 

Fullen; on the same day in New Orleans, by a margin of victory 

given to him by black voters. (Transcript of Proceedings, 

March 10, 1983, pg. 140) 

Those facts have meaning beyond the cold analytical 

conclusions of Dr. Henderson's computer. And that evidence 

teaches that blacks have equal access to the political process 

as do the elections of Councilman-at-Large Barthelemy, Judges 

Augustine and Ortique, and the election of Mr. Lombard as Clerk 

of the Criminal District Court. Those elections were no acci- 

dent, and they were not the result of racism, they were the 

result of a significant and important aspect of inter-personal 

relations in the Greater New Orleans area; they mean that 

blacks will vote for whites to a significant extent, and whites 

will vote for blacks to a significant extent. This ever-growing 

trend was recently recognized on the editorial pages of the 

Baton Rouge Morning Advocate. See, attached Exhibit "A". 
  

One need only look at the testimony of Representative 

Turnley regarding his support of Congressman Moore. Represent- 

ative Turnley admitted that the Congressman has done a good job 

representing his congressional district. More importantly, he 

admitted that Congressman Moore received 94% of the black vote 

in the 6th Congressional District the last time he ran and that 

   



Representative Turnley supported him (Transcript of Proceed- 

ings, March 8, 1983, pgs. 45-46). 

Similarly, Representative Alphonse Jackson, a black 

state representative from Shreveport is supporting Senator Bill 

Keith, a white man, for reelection in Shreveport. One of 

Senator Keith's opponents is black. See, Shreveport Journal 
  

article, March 31, 1983, page 6A (attached hereto as Exhibit 

“B"). 

Finally, the Court cannot overlook the testimony of 

Plaintiffs' own expert, Dr. Engstrom,- who admitted under oath 

that Louisiana is number two in the Nation in the number of 

black elected officials, and, not long ago, was number one 

(Transcript of Proceedings, March 8, 1983, pg. 174). 

Let's also look at the axtent to which blacks partici- 

pate in the political process beyond the extent to which they 

hold political office, which is so vital a test under Section 

2. One doesn't need social theory to be able to decide whether 

blacks are able to mobilize an effective voter turnout. The 

testimony of Dr. Engstrom, for plaintiffs, is unworthy of 

belief. Oc: Engstrom would have the Court make the general 

characterization that blacks belong to a lower socio-economic 

status and that people who belong to a lower socio-economic 

   



status participate less in politics. His colleague, Dr. 

Wildgen, disagrees (Trancript of Proceedings, March 10, 1983, 

pgs. 215-216; 233-34). The Defendants' demographer, Mr. Selle, 

disagrees (Transcript of Proceedings, March 10, 1983, Pg. 

150). More significantly, Mayor Morial impliedly and proudly 

contradicts the thesis of Dr. Engstrom; he testified in his 

deposition that black voter turnout in New Orleans is so high 

and so sophisticated that whites have even sought him out to 

copy his election day practices (Deposition of Mayor Ernest N. 

Morial, taken March 3, 1983, pgs. 67-71). 

And how responsive have white representatives been to 

black constituents even though they have a minority constitu- 

ency in Louisiana? You heard the testimony of Mr. Turnley on 

Congressmen Long and Moore. Congressman Moore received some 

94% of the black vote in his district; he has been immensely 

involved in attracting projects of special and parochial inter- 

ests to his Dhak constituents even though they constitute a 

vast minority of his district. Under Act 20, blacks comprise 

25.1% of the population of the Sixth Congressional District. 

(Transcript of Proceedings, March 8, 1983, pgs. 45-46). You 

heard Congressman Livingston on how he feels about his black 

constituents and what he has done to serve them, although they 

   



are a clear minority in his district (Transcript of Proceed- 

ings, March 10, 1983, pgs. 289-92). And the Court will no 

doubt take judicial notice of the record of Lindy Boggs as 

Representative from District 2. 

Does the evidence suggest that a black person can be 

elected in District 2 today? Dr. Wildgen says that a strong 

black candidate can be elected in District 2 (Transcript of 

Proceedings, March 10, 1983, pgs. 231-32). Common sense says 

that if Mayor Morial did it in 1977, why could not a black do 

it today in District 2? And both Dr. Wildgen and Mr. Selle 

have stated without any serious contradiction that the growing 

black population in District 2 as it was created under Act 20 

renders it not likely, but probable, that a black will be 

elected in the next few years in District 2 (Transcript of Pro- 

ceedings, March 10, 1983, pgs. 146-148, 226, 237-235). The 

average ranges of cross-over vote are from 12.9% to 46% in New 

Orleans, plus the growing black population trends which were 

pointed to in the testimony, clearly infer that a black will be 

elected and that blacks have equal access to the political 

process in District 2 today and possibly in District 1. 

Nunez and the so-called Henderson Plan offer a quicker 

short-term fix in that they pretty much assure that a black 

will be elected sooner in District 2, but both Nunez and 

   



Henderson lock the black population into District 2 and 

surround it by a white ring which effectively prevents any 

clear growth of the black population in District 2, and even 

less in District 1. Act 20 achieves the precisely opposite 

result (Transcript of Proceedings, March 10, 1983, pgs. 

146-148, 150). 

Further, under its surface, Nunez has no socially 

redeeming qualities when you look at it. Five districts have 

less black population in them than under Act 20. Blacks in 

those five districts will have less influence in their dis- 

tricts than they will have under Act 20. 

Act 20 also took into consideration the other factors 

which are measuring rods for constitutional soundness. 

It is true that the concerns of members of the Con- 

gressional Delegation played a strong role in the compromise 

product which finally surfaced from the Legislature. But 

incumbency is not evidence in and of itself of discrimination 

and the Supreme Court has consistently held that it is a valid 

standard. See Burns v. Richardson, 384 U.S. 73, 89 n.l6 
  

(1966); Gaffney v. Cummings, 412 U.S. at 752; White v. Weiser, 
  

  

412 49.8, at 791 As the Supreme Court noted so 

pointedly in White v. Weiser, there are valid reasons why 
  

"constituency-representative relations" should be considered in  



the reapportionment process... There is no dispute and none was 

raised in this trial that Act 20 satisfies the principal of one 

man one vote as stated in Wesberry v. Sanders, 376 U.S. 1 
Ed 

(1964). And the Court should not place a holy reliance on the 

  

notions of contiguity and compactness. If the testimony in 

this case demonstrates any vivid point it is that those 

standards are elusive at best and that no court has really ever 

caught hold of their true meaning. You should recall the con- 

fused testimony of Mr. Chehardy himself who tried to indicate 

that a difference existed between Jefferson and Orleans and 

then admitted the same differences between Uptown Orleans and 

Ninth Ward of Orleans (Transcript of Proceedings, March 9, 

1983, pgs. 31-31). 

There is a serious question of whether a so-called 

"community of interest" directed to a single group of citizens 

is even desirable. Certainly, that was not the intent of the 

founding fathers. As Professor Walter Berns of the American 

Enterprise Institute testified before the Subcommittee on the 

Judiciary: 

"Whereas the Anti-Federalists called for 
small districts and, therefore, many 
Representatives, the Framers called for (and 
got) larger districts and fewer Representa- 
tives. They did so as a means of encompass- 
ing within each district 'a greater variety 
of parties and interests, thus freeing the 

   



elected Representatives from an excessive 
dependence on the unrefined and narrow views 
that are likely to be expressed by particu- 
lar groups of their constituents. ... 

"The founders--and I touched on this when I 
talked about representative government-- 
wanted larger districts precisely to prevent 
a member from being beholden to one narrow 
interest within the community, because a 
representative who represented a diversity 
of opinion and of interest in his own sec- 
tion would find it easier to accommodate his 
interests and to achieve accommodation with 
the representatives of other districts. 
That is what the founders thought; that is 
what Madison thought, and I think he was 
profoundly right in that respect." 

See, Hearings Before the SubCommittee on the Constitution of 
  

the Committee on the Judiciary, pgs. 231 and 236. 
  

Shape is another one of those elusive ideas in the 

redistricting process and it can be used to poison the atmos- 

phere or justify tz. Does the Court prefer a duck or a 

buffalo with its tongue hanging out (the Henderson Plan)? Mr. 

Baer admitted that the duck is a function of the attempt by 

those who drafted Act 20 to enhance the black vote, the black 

population in District 2 (Transcript of Proceedings, March 9, 

1983, pgs. 60, 74). 

  

One need only examine the Congressional District Atlas 
for Districts of the 98th Congress to see the varied and 
torturous shapes of congressional districts throughout the 
Country. By way of example, the Congressional District 
Maps of Massachusetts and New Jersey are attached hereto 
as Exhibits "C" and "D". Are these districts shaped any 
better than District 2? 

dD  



Dr. Wildgen testified that the Henderson Plan is a racial 

gerrymander and that is how the buffalo shape came about 

(Transcript of Proceedings, March 10, 1983, Pg. 227). Thus, 

both shapes are a function of conscious inclusion, not 

exclusion, of black population. 

CONCLUSION 

How does one distill four days of intense trial on 

such a serious issue? 

In the political science sense, Your Honors, blacks 

are not entitled to safe seats. Dr. Wildgen disputed the 

thesis that a seat is only "safe" if it has a 65% black popula- 

tion and said he would think District 2 today could be safe for 

a strong black candidate as is the City of New Orleans, (Tran- 

script of Proceedings, March 10, 1983, pgs. 231-235). 

Congressional seats should not be designed solely on 

the basis of race in order to insure the election of a black 

person, or a white person. Neither the Constitution nor the 

courts require that. The test is equal access, not preferred 

access. 

We do not believe that a black person can only ade- 

quately represent another black, as Plaintiffs implicitly 

insist. Such an attitute gives in to racial polarization. 

In short, we believe the atmosphere in New Orleans 

offers more than the cynical portrait painted by the Plaintiffs 

   



during several intense days of trial. We believe that whites 

will vote in significant numbers for blacks and blacks will do 

likewise. The evidence is undeniable. We do not suggest that 

blacks have not been deprived, humiliated, and treated like 

second class citizens solely because of the color of their 

skin. But we deny that those conditions exist to 

political arena to the disadvantage of blaeks. 

We began by arguing that Act 20 is a product of the 

fair exercise of an imperfect, untidy, legislative process. 

Blacks did not get what they wanted, they did not receive the 

ultimate assurance that a black would be elected to Congress. 

But a black can be elected to Congress from District 2 now, as 

a result of the cross-over vote, and continuing over the life 

of District 2 as it is presently structured because of the pro- 

jected growth of the black population in that District. Act 20 

represents a reconciliation of good faith differing points of 

view unrelated to negative racial motives or results and ought 

to be upheld for that reason alone. It structures districts 

which do not guarantee but which make available to blacks the 

possibility for their election and influence in Congress. It 

did it in an untidy way but it did it just the same, and that 

is what the evidence teaches. 

   



Your Honors, for blacks to want to elect another black 

to office is not an unreasonable aspiration. But how that per- 

son gets there is where the differences between the parties in 

this case lie. It is the extent to which the Constitution 

requires that that result be designed on the basis of race 

which this case brings into focus for You to answer. A black 

can be elected, as New Orleans has proved. And that is the 

ultimate consideration which you should take into account in 

upholding the validity and constitutional soundness of Act 20 

of 1981. 

Respectfully Submitted, 

otf Hl bas 
i 

MARTIN Al C. FELDMAN 
ROBERT A. olin: 

of 
BRONFIN, HELLER, FELDMAN, 

STEINBERG & BERINS 

624 Whitney Building 
New Orleans, Louisiana 70130 
504/568-1888 

  

HONORABLE KENNETH C. DEJEAN 

Chief Counsel 

Office of Attorney General 
Post Office Box 44005 
Baton Rouge, Louisiana 70804 
ATTORNEYS FOR DEFENDANTS