Attorney Notes Pages 1431-1432, 1440, 1703

    IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA
RALEIGH DIVISIONt

t,,
t

RALPH GINGLES, et alr ' )

Plainttffs, ]
) No. 81-8O3-CIV-5

v. )
)

RUFUS L. EDMISTEN, €t al. ' l
Defendants. )

)

APPENDIX TO POST.TRIAL MEMORANDI'M
OF PLAINTIFFS RALPH GINGLES, ET AL.

sIlp Oplnlons submltted pursuant to Local Rule 5.03



I ?..r Pi{ '!3
' lr',,-

i , . .. 1r i r'

DLiitirUNITED STATES DISTRICT COURT

EASTERN DISTRIET OF LOUISIANA

BARBARA MAJOR, ET AL. ' : Civll Action No. 82-LL92
Section C

Plalntiffs,
versus : t'tEl'tORANDUt't OPINION

DAVID C. TREEN, ETC.I ET AL., :

Defendants. :

Before Politz, clrcult Judge, cassibry and coll1ns, District
Judges.

Politz, Circuit Judge:

Individually and on behalf of all black persons residing and

registered to vote in Louisiana, plaintiffs Barbara Major,

ltichael Darnell, Bernadine St.Cyr, Brenda Quant and Annie A'

Smart brought suit under the thirteenth, Eourteenth and Fifteenth

Inendments to Ehe Constitution, the Civil Rights Act. oE 1871, 42

u.s.c. s 1983, S 2 uf the voting Rights Act, as amended, 42

U.S.c. s 1973, and 2g U.s.c. ss 220L and 2202, seeking

declaratory and injunctive relief restraining use of the recent'

realignment of the stat,ets congressional districts, Act 20 of the

1981 Flrst ExtraOrdinary session of the Louisiana Legislature.

Jurisdiction is based on 28 U.S.C. SS I331 and I343, and 42

u.s.c. s 1973j. The gravamen of Plaintif fsr claims is t,hat Act

20 eras designed and has the ef f ect of cancelling, m'inimizing or

diluting minorit,y vot,ing strength by dispersing a black
r=E

-:: 
jcEss

-/R:
-7ur:p?Liic
66 c 

:u rli e xr No' -.-'-''W%,Fre



Population. majority in Orleans Parish into two congressional

districts. The question posited is whether legislation dividing
a highly concentrated black population existing in one geographic

and poritical unit, a parish, into two districts, rather then

placing them in a single distr ict in whieh blacks would

consEitute a majority, deprives Louisianars black voters of the

right to effective participation in the erectorar process.

FacFs and Procedural Historv
rn November r981, Act 20 of the Louisiana Legisraturers

First Extraordinary session of 1981 apportioned. t,he state into
eight single-member congressionar districts. Act I of that
session established new stat,e representative districts. Both

enactments were submitted to the Attorney General of the United

states for preclearance under S 5 of the voting Rights Act, 42

u.s.c. s 1973c.1 Prior Eo action by the AtEorney Generar,

r. secEion 5 of the voting Rights Act of 1965, qz u.s.c. r973c,requires a state or porit,ical subdivision covered by the Act Eoobtain preclearance from the Attorney General of the united
States or through the District Court for the District of Columbia
whenever it adopts or seeks to administer any change in itsqualiflcations, prerequisites, standards, pracEices or procedureswith respect to voting. To receive preclearance, Ehe proposed
change must have neither the purpose nor the effect of deiyiitg orabridging Ehe right to vote on. hccount of race. The a[toineyGeneralrs preclearance determirraEion does not preEermiE I
subsequent action:

Neither an affirmative indication by Ehe
Attorney General thac .no objection wiII be(footnote continued)

2



plaintiffs. filed the lnstant sult attacklng both plans on

statutory and constitutional grounds. The case was assigned to

the docket of Judge Robert E. Collins. On June 1, L982r the

Justice Department interposed a S 5 obJectlon to Act 1, rendering

that, legislation unenforceable. 42 U.S.C. S 1973c.

Judge Collins denied as moot plaintiffsr motion to

consolidate their complaint with one filed by a prospective

congressional candidate which rdas later dismlssed for want of a

justiciable case or controversy. Robert E. Couhiq, Jr. v. James

L. Brown, Secretarv of State, C.A. No. 82-1136-D (E.D.La. ) .

Defendantsr motion seeking a separate trial of the claims of

made, nor the Attorney Generalrs failure to
object, . . . shall bar a subsequent action to
enjoln enforcement of such qualification,
prerequisite, standardr pt6cticer oE
procedure.

42 U.S.C. S 1973c.

Private plaintiffs are free to mount a de EqVo attack upon a
reapportionment plan notwiEhstanding precleaEnEil United SLaEesv. elst Batonjg , 594 F.2d 56mll9-(ffi'

432 u.s. 491, 506-07 trgZZl
(nWhere the discriminatory character of an enactment is not
deEected upon review of the Attorney General, it can be
challenged in traditional constitutional Ior statutoryl
1i t igat ion. But it cannot be questioned in a suit seekingjudicial review of the Attorney Generalrs Idecision].ny. Sincethe statutory standards of review under S 5 differ from those
established by amended S 2, Report on S. L992 of the Senate
Committee on Ehe Judiciary, S.Rep. No. 97-4L7, 97th Cong., 2d
Sess. (I982) at 68, 138-39, a grant or denial of preclearance
pursuant to S 5 is not dispositive of a S 2 claim. Hence we
conclude that the AssisEanE Attorney Generalt s preclearance
determination has no probative value in the instant case.



malapPortionment of congressional and state representative

districts was granted. Acting on plaintiffsr uncontested motion

for partial sunmary judgment, Judge collins declared the L976

congressional distrlcting plan, Act 697 of the L976 Louisiana

Legisraturer - unconstitutionar because of large population

variances among districts when viewed ln light of data developed

in the 1980 census.

This three-judge court was designat,ed by chief Judge charles

clark of the Fifth circuit court of Appeals on June 10, 1982. on

June 18, 1982, Act 20 was precleared by the Attorney Generar.

After Act l, as subsequently modified by the Louisiana

Legisrature, was approved by the Attorney General, plaint,iffs
amended their complaint to withdraw their challenge Eo the

reaPPortionment of the Louisiana llouse of Representatives. In
addition, Plaintiffs amended their complaint to assert a cause of
action under the 1982 amendments to S 2 of Ehe voting RighEs Act

of 1955, 42 U.S.C. S 1973.

By order dated March 7, 1983, this court reaffirmed Judge

Collinsr invalidation of Act 697. We granted plaintiffsr motion

for class certification pursuant, to Fed.R.Civ.p. 23 (b) (2),

designating a class of persons consisting of all black regist,ered

voters residing in Ehe SEate of Louisiana. Finallyr w€

det,ermined that 28 U.S.C. S 2284 (a) vested in this court
j ur isdict,ion to enter Eain plaint,if Es I staEutory and



constit,utional clalmg. TEiaI was held from March 7 through t'larch

10, 1983. Decislon was deferred pending briefing and oral

argument. Having considered the evidence adduced at trialr'

togeEher with the Pleadings, briefs, and oral argument of

counsel, the court enters the following findings of 'fact and

conclusions of law ln conformity with Fed.R.Civ'P' 52(a) '

Flndinqs oE Fact

Every ten years a reapportionment2 of existlng congresslonal

districts is compelled by Article !' S 2 of the United States

Constitution and by Article 3, S f of the Louisiana Constitution

of Lg14. In Lg72, LOuislanars eight congressional dlst,ricts tr'ere

realigned based on daEa developed in the 1970 censlus' At t'hat

2. A technical distinction has been drawn between Ehe terms
.apportionmenB' and "reapporEionment, tr on the one hand' and

'aiitricting" and nredistrictingm on the other:

inroiuffi.ron"nio, ffi
finiie-number of representaCives among a. fixed
number of pre-estautisnea areas. -Districtino
and redlsEiictinq . . . refer to the processeE
ui- fif-f-:"-ines separating - 

Ieg islative
districts are drawn tby t'he statesl '

Backstrom, nobins and Eller , Issues in Gerrymander ing: - An

iipi"iit"iy l1qa"u." of part isan Gerrymander ing Applied to
Uii,n"""t ar' 62 tlinn.L.Rev. 1121, 1121 n.l (1978) .. -E Carsqens g.
Lamm, 543 F.Supp. 58 (D.Col. r982) (three-j9dge_. court); R.

fiffiif rl '-p"iiti-"ii neaiitr icting qnd Geographic .Theory . a-t . 2
(f98I). To ii"iiit"i" discussioir, however, these terms will be

utillzed int,erchangeablY.



t,ime the ideal dlstr ict Srcpulation was 455 r 580 Persons ' while

the state remalns entitled to eight representatives Eollowing the

1980 census, the ideal district tlopulation has increased to

525r4g7 P"r"on".3
The issue before us princiPally involves the New Orleans

metropolitan area, which encomPasses Ehe parishes of orleans'

Jefferson, st,. Tammany, Plaquemines and st. Bernard. The 1980

census figures reveal pronounced demographic changes in this

area.

3. The following table sets Eorth the 1980 populaEion'
i"r""ni"g" of-Uf"cti- poputation and percent of deviation in the
eight L972 district,s:

Louisiana Congressional Districts
1980 Census

L972 Plan

Distr ict
I
2
3
4
5
6
7
I

PopulaEion

523,27L
46r,802
571, r31
508,593
507, 539
517,L40
543,235
511,261

Black t
36. 5
40.7
r4. 6
31. 9
32.1
29.6
20. I
33.2 -

Dev iat ion

0. 42t
-L2.L?t^+ 8. 58t

3.22t
3.42t

+ 9.83t
+ 3.38t

2.7LL

Given the near-absolute mathematical prgcision,wit'h which

"ongr"i" 
i"qf l. distr icts must be de f i ned , xaicher l.Da11ffii"ll

u.s.L.9{. 4853 (u.s.SuP.ct;, -1r.. - 22; T-9831 ,-E';
airiniaiea i; tht tglZ iran fail to satisEy the equal
represent,ation standard of Article l, ! 2: ^-^ Ege Pret'rial
sripulation "i 4- ('U;a;; Ehe I98O census-l tLe--I972 Zfilortionment
pl;i-- for - congreJsio""I disEricts was significantly
ilifipp"riionedr-iJ-to a1l districts except the First. . . .").



-l

l

During the decade of the 1970s, Orleans Parish (coterminous

wiEh the Ctty of New Orleans) experienced a marked change and a

slight decline in population.4 While overall population

declined, Ehe black grcpulation lncreased. The city/parlsh now

has a black population of 3081039 persons, which constiEutes 55t

of the total populatlon, 48.93t of the votlng age population, and

44.89t of the registered voters. with the exception of affluent
white neighborhoods located in the cityts Garden District and

French Quarter, along the lakefront, and near Tulane and Loyola

Universities, the black populace ls largely concent,rated in one

contiguous expanse of the inner clty.
By contrast, the predominantly white, suburban parlshes of

Jefferson and St. Tamnany, which flank the central city, have

undergone explosive population growth.5 According to the 1980

4.

Census

1980
1970
1950
19 50
1940
t9 30

5.

Census

1980
(footnote continued)

Orleans

Populat ion

557 ,482
593,47L
627 ,525
570, {45
494,537
458 ,7 62

Je Efer son

Populat ion

Par ish

No. of Ideal Districts
1. 06
1. 30
1.54
1. 70
1.67
1. 75

Par ish

No. of Ideal Districts
454,592 0. 87



census, Jefferson Parish, with a 13.9t black Srcpulation, a 13.75f

black voting age population, and a 10.45t black voEer

registration, is nearly 87t the size of the ideal congressional

disErict. Unlike Orleans Par ish, Jefferson Par ish I s black

population is diffused throughout the parish. Prior to the

recent demographic shifts, New Orleans had enough people to forn
the dominant majority in two congressional districEs. Now only

1.06 times the size of the ideal district, as defined by the 1980

census, New Orleansr traditional dominance of two congressional

disEricts is no longer supported by its population.

Under the L972 redistricting pIan, the First Congressional

District, presently represented by Robert Livingston, encompassed

SE. Bernard, Plaquemines and St. Tammany Parishes, together with

the lakefrontr €oscern Mid-City, Algiers and New Orleans east

sections of Orleans Parish. An overlay of Ehe 1980 census data

Eo EhaE districE, as configured under the Lg72 p1an, reflects a

35.5t black populaEion and 29.4* black voEer regisEraEion. The

Second Congressional DisErict, presently represenEed by Lindy

Boggs, covers those porEions of Jefferson Parish to Ehe south

(West bank) and immediately north (East Bank) of the Mississippi

Rit'err ES well as New Orleans' central business district, French

r970
19 60
1950
1940
19 30

338 ,229
208 ,'7 69
r03,873

50 ,427
40,032

0.7 4
0.51
0. 3r
0. 17
0.15



Quarter, uptown or Garden Dlstr ict and western lrrid-city, all

sltuated withln the boundaries of Orleans ParlEh. Applicatlon of

the 1980 census data to the L972 boundaries of the second

District shows that,49.7t of the populatlon and 34t of the

registered voters are black. See Exhiblt 'A' attached'

Leqislative Historv of Act 20

Early in 1981, members of the Louisiana House and Senate

research staffs were instructed to collate the 1980 population

data cornpiled by the Unlted States Bureau of the Censugr and to

ascert,ain the extent of malapportionment,, if aDY, under the L972

plan. With the assistance of Ehe Louisiana state universityrs

Division of Research Services, ilouse and Senate research staffs

converted the data thus obtained from a census Eract to a

political subdivision, or precinct, basis. TheEe validated data'

referred to as the Weber data, included population and vot'er

registrat,ion figures, and Provided the exclusive data base for

congressional redistricting in boEh houses'

Recognizing the need for realignment of the stater s

congressional districts, the legislature eslablished the

Louisiana llouse and senate Joint Congressional Reapportionment

commiEtee. In July, at Ehe close of E,he regular 1981 session,

each house appoint,ed legislators to ad hoc congressional

reapportionment subcommi Etees Eunctioning under t,he j ur isdict'ion



of two standing cornmittees, the Senate Committee on SenaEe and

Governmental Affairs and the Eouse comnittee on House and

Governmental Af f airs. Senator Thomas II. lludson chaired the

Senate Congresslonal Reapportlonment Subcommitteei Represent,ative

John w. sCOtt Chaired its House counterpart. There were four

black legislators on th.e joint committee. No black legislator

was aPPointed to either subcommittee.

State-wide public hearings soliciting citizen input were

conducted by the subcommittees from July through October 1981..

One of the principal issues debated in the various fora concerned

the possibilit,y of f ashioning a distr ict centered in Orleans

parish, whichr €rs the 1980 census data reflected, had a black

population of 55t. Representative Richard Turnley, in his

,capacity as Chairman of the Louisiana Legislat,ive Black Caucus,

testified before the joint reapportionment committee in suPPort

of Ehe proposition that the stat,e's rninority constituency would

be best served by the structuring of an Orleans Parish-based

district which maintained Ehe cohesiveness of the metropoliEan

black community. t{inutes of several public hearings held in

August 1981 reveal that other legislators, both white and black,

shared this view.6 Other considerations identified as important

6. Contending that oral or written statements uttered in the
context of pluric hear ings bef ore Ehe joi nt cornmi t,tee and
subcommittees are hearsay, defendants conEest the admission of
ii"n=.tipts, or minutes , ;i t,hese meetings. We disagree, f inding
(fooEnote continued)

10



to the reapportionmen! Process were compactness, contlguity'

respect for parish llnes, and a recognition of ethnic, cultural

and geograPhic differences.

Based on the recommendations of legislative counsel, the

Ilouse subcommlttee promulgated several rules for the designing of

congressional districls.7 Embodied in these rules were the

that Ehe transcriPtE falI within Ehe
the hearsay rule. Fed.R.Evid. 803 (8)
f ollowing are not excluda'ble as
declaranE is available as a witness:

public record excePtion of
. Under RuIe 803(8) (A), the
hearsay, even though the

Records, reports, st,atements, or - -datacompilalions, - in any form, of public gffig""
or agencies, setting forth (A) the activities
of the offtce or agency.

Plaintiffsr Exhibits 1 through 9, inclusive, are records of
regularly-conducted sessions of a joint - committee and
suOcommi[tees of the Louislana Legislature and, as such, are
admissible as evidence of the facts to which they relate without
ioundational testimony. J. Weinsteln and !d. Berge-r-, 4

weinstein's Evidence tl- 803 191 t0Il (1981) . There is no challenge
of these records. We have not eonsldered

sEatements presenting double hearsay problems.. With this
eiception, wiitten anE oral statements contained in the minutes
;i tie various public hearings are admissible as evidence of t,he
maEters asserted.

7. In presenting their proposed, -red,ist-ricti-ng guidelines to the
Ilouse sribcomrnittde at Eha July 23, 1981 public meeting in Baton
Rouge, counsel advised members that racial considerations must
ifii-'a 

-L"i rote in reapportionment, and t,hat minority voting
![iangth c-ould not be diisipated through the fragmentation of
signiiicant minorlty population concent,rations. Minutes of JuIy
,i; it8i pobtic rleaiirig -Before Ehe House and GovernmenEal Af f airs
SuLcommittee, PP. I59-174. David Poynter, CIerk of the House
Representatives, warned that,

[o] ne concern of Ehe courts is the exist'ence
of a predominantly black neighborhood or area
$rith a sufficient amount of population to

(footnote* continued)
II



I
4

t

princlptes of strict comPliance with the "one-person, one-vot€rl

axiom, allowing for a naximum deviation of only .5t, and the

unacceptability of any proposal shown to have either the 9oa1 or

the effect of diluting minorit,y vot,ing strength. Identical

criteria were endorsed by the Senate subcommittee. During the

first joint meeEing on August 2L, 1981, t,hese guidelines tdere

formally adopted.S

justify a district where it'becomes apParanE
isicl t,hat the effect was to carve uP that
group of people in such a way as to -put. them
in tio or -thiee separate districts and make it
imPossible to elect a black rePresentative'
Thet probably without any question is

. imPermissible.

Id. at 190.

g. RuIe I of the Joint Legislative Committee on Reapportionment
iioposea Rules for CongresJional ReqPportionmentr is approved by
the Joint comnittee on August 2L, 1981, stipulates that:

1. EqualitY of PoPulation of
congressional distr icts insofar as is
Practicable is the goal of congressional
reaPpor t ionment .

I.A. DeviaEions Erom the n ideal
districE" population should be justifiable
either as a result of the limitations of
census geography, or as a result of Ehe
promotion oe - a constitutionally acceptable
rational sEate PolicY.

l.B. In order to meet constitutional
guidelines for congressional districtsr arY

' llan, or proposed amendment thereto should
Lonform to a relative deviation range of one
(lt) percentum, or a relative deviation of
+/- L/2 of one (.51) Percentum.

(Eootnote conEinued)

L2



several grouPs submitted proposals to the joint comnittee orthe Ewo subeommittees,

Loulsiana congressional
among them Governor Dave Treen and the
delegation.9 None of the Governorrs

three proposed plans, denominated Treen A, B, and C, contemplateda majority black district.l0 During this period the Governor

According to Rule rv, atso approved by the Jolnt committees

Distr icr

".."nlin rJn:o.fllution of m-lnoritv votins
, ig h t . e r nean i ;; ; [i' I: ltl"t i:!?t l:, gl"r,tg;, 

";r: ;Ii;" ;::tr"::: 
t'""J[ i s' r e cos n i ie &-'- 

- ;;;5 ;; i iI rr,thireto, a",'o;d!!i!:l"ii.T:nlo"i nltli;;iiljobjective or conse-quence of diluting thevorins . sr-rensrh ;;---;l;ri& cirizens isunacceptable.

9' on behalf of all eight of Lou.isiana,s congressionalrepresentativesr congre""-un w1rri", rJuz.in -Ji*":"tJ 
a proposedreapportionment plan- to- [ne i;i;;'" "oilitt"'"--;;";i: Aususr zLorganizarional rnl"ting. -.sertrii- 

a-i?15icrs iirtii" rhis planexceeded rhe popuration a"riiii.n "iJirflg- piJJ.iiu"a by rhecorunlttee,s reipdortionmlnt- r-ufes. 
- 

Aiq"it_ iri,rir_ed- -to 
submit aElu.r"Jl:"j i:.i?iea- tnil''a.ii.i"n.y,-th" aereearion as a whore

10' Black ?'d white popuration percenEages in the eightcongressionar districts 
".I"i"J-iv-r."Ei'prans-A Ehrougn c are:

S WHITE

.1
2
3
4
5
6
7
I

Proposal A

55. g
s4. 6
83. 6
67.L
67.5
70. r
77 .7
67 .6

65. g
54. 5
84. 0
66.7
6'l .5
70. I
76.7
58. 5

Proposal C

65. g

54. 6
83.5
67.I
67 .5
70.1
71.0
7 4.3(footnote continued)

13



publicly expressed hls oPPosltion to the concept of a majorigy

black district, stating that districting schemes motivated by

racial considerations, however benign, smacked of racism, and in

any case were not constitutionally required'

Guided by the joint committeers reaPPorEionment crit,eria and

the views articulated at the public hearings held throughout the

summer and fall of 1981, the Senate research staff prepared more

than 50 plans. the sEaff was directed to formulate a plan

containing an Orleans Parish-domlnated district. Such a district

would necessarily have a black majority PoPulation. Michael

Baer, SecreEary of the Senate and the official charged with

supervising legislative drafting procedures, ensured compliance

with such well-established reapPortionment guidelines as

one-person, one-vote, comPactness, respect for the integrity of

geographic boundaries, preservation of communities of interest,

and non-retrogression. Part,isan political concerns also figured

prominently in the confection of the various plans, among them

$ BLACK

oistr ict
I
2
3
4
5
5
7
I

Proposal A

32. 0
43. 5
14. 3
31. 5
31.9
28. I
2L.5
3r. I

Proposal B

32.0
43.5
13.8
32. 0
3r.9
28. 8
22.7
30. 5

Prooosal C#

32.0
43.5
14. 3
31. 6
3r.9
28. 8
28 .3
24.9

I4



the deslres of Jefferson Parish 1rclitical leaders, including Tax

AsEessor rJa,rrence c. chehardy, Eot the creat,ion of a disErict

composed primarily of that parish'

To achleve these 9oa1s, the senate staff developed a plan

whichr ES the result of the sponsorship of senator Samuel B'

Nunez, JE. Of st. Bernard Parish' would subsequently be referred

to as the "Nunez PIan." See Exhibit nBn attached' As drafted'

thls plan envisaged one black and seven wh.ite population rnajority

dlstricts. Nunez's proposed First cOngressional District, 72t of

which was made up of Jefferson Parish, comblned that area of the

parish lying west of the ttississippi River with orleans Parishrs

ward 15, and the parishes of Plaquemines and st. Bernard' The

proposed second congressional Distrlct consisted alnost entirely

of orleans parish (94.9t), together with 25 contiguous precincts

drawn from east Jefferson Parish. st,. Tammany was restored to

the sixth congressional Dist,rict, from which it had been excised

during Ehe I960s. By allocating separate districts to majority

black, urban orleans Parish and virtually all-white residential

Jefferson Parish, Nunez took into account t'he divergent'

frequently antlthetical, concerns of city and suburban dwellers'

as well as parish lines and the natural geograPhic barrier

erected by the Mississippi River. utilizing 1980 census figures'

Nunez,s second District would be 54t black in population and 43t

black in voter registration. The First District would have a

l5



black population of 17.9t and a black voter registration of

r2t. 11

On the the llouse side, the tegislative staff devised a plan

which largely adhered to parish lines and left intact the

concentration of blacks residing in Orleans Parish. Named for

its sponsor, Representative Scott, this plan envisioned a 50.2t

black population majority and 44t black registered voter

population in the Second Congressional District, and a 22.5t

black population and 17t bLack registered voter poPulation in thq

First District.
Governor Tree.n summoned the tegislature into extraordinary

session on November 2, 198I for the purpose, jglgg 3f!1, of

Iegislative and congressional reapPortionment. Various bills to

reapporEion the eight congressional disEricts were filed on the

first day of the session, among them the Nunez Plan, introduced

r1. The population and percentages of black
for each of the eight

Nunez PIan are:
population and voter
congressional disEr icts

dev iat,ions
reg i s t,r at ion

formed by the

t Deviation

0.22
0. 07
c.02

0.04
0. 08
0. 3t

E 0.ll

t Black PoP.

17.9
54.0
?L.3
31.6
3r. I
22.8
20.0
35.9

t Black Reg.
Voters

13.0
43.5
r8. 8
22.3
24.5
17.5
15.8
30. 3

E.
I
2
3
4
5
6
7
8

Total Pop.

526 ,666
525, 135
525,58r
325,067
525,656
525 t07 4
523,847
524,953

I5



ln the senat,e by senators Nunez and Tienann as s'B' 5' and Ehe

scott Plan, lntroduced in Ehe Bouse by Representative scott as

H.B. 2. Of all btlls referred to the standing senate and llouse

committeesongovernmentalaffairsronlys.B.5andH.B.2
received favorable corunittee action'

ttembers of the Louislana Black caucus united with the

Jefferson Parish fOrCes, led by Nunez and chehardy, in urging

passage of the Nunez Plan. That Nunez and chehardy were

principally concerned with establishing a district controlled by

predominantly whiEe Jefferson Parlsh was of 1ittle import to

black legislators, who advocated the Planrs concomitant formation

of a rnajority black distrlct ln orleans Parish' on NOvember 4'

1981, S.B. 5 was reported out of commlttee wlth minor substantive

amendments and onto the senate floor, where it was passed by a

vote of 31 Eo 6. A move to amend s.B. 5 to substiEute Governor

Treen,s PIan A was defeated, and s.B. 5 was sent to lhe llouse for

further action.

t{.B. 2 was simultaneously report,ed out of llouse committee

and placed on the House calendar on November 4, 198I, along with

an amendment to substitute Governor Treenrs Plan B for the scott

Plan. The IIOUSe cOmmittee on llouse and GOvernmental Affairs

received s.B. 5 on November 5, r98I, but declined Eo amend II'B' 2

Eo adopt, the senate bi.I1. RepresenEative charles Bruneau' a

member o! the committee, testified thaE his vote in commitEee

L7

r



against S.B. 5 resulted frorn the plan's abandonment of urban New

Orleansr 13O-year tradition of electing two congressmen.

In proceedings before the full tlouse on Friday, November 6,

the representatives declined to amend [I.8. 2 to substltute Treen

plan B. Despite the Committee on llouse and Governmental Affairsr

previous rejection of S.B. 5, the House then voEed 61 to 38 to

adopt the Nunez PIan by engrafting it on II.B. 2 and dispatched

the newly-amended E.B. 2 Eo the Senate.. Some of the 38 negative

votes stemmed from the perception that New Orleans would 'lose'
control of a seat under the Nunez PLan.l2 AIso cited rdas the

antagoniirn of a number of legislators toward the drawing of a

district whose racial composition would facilitate the election

of a black congressman. Representative !,tary Landrieu testif ied:

There were PeoPIe that suPPorted that plan
[Nunez P1anl, Iike myself, because we wanted
io be aggressive and pushing for a black
distr ict & a dist,r ict where minor iEy voting
strength would be encouraged. And so there
were people on the opposite side who didn I t
feel Cney wanted to have a district that would
be able to elect a black represenEative.

Record, VoI. III at 49.

L2. Regardless of the sincerity with which it is held, th9
iegislat5rs' conviction is no longer valid. The population of
Orieans Parish, the region's nodal cent,er, has historically been
large enough to control two congressional districts. Given Ehe

losi of apfroximately 36,000 people over the last decade, and thq
concomitanl increasL in the ideal district, population of
approximately TOTOOO people, OE1eans Parishrs Sropulation is now
oiriy I. 06 times largel Ehan Ehe ideal disErict required by Ehe
1980 census data. E p. 7, supra.

18

I



Both houses of the Louisiana Legislature had t'hus approved

reapportionment bills incorporating the Nunez Plan in its

entiret,y, although the tlouse Bill inadvertently lef t out one

precinct. Upon learning of the action of the legislature,

Governor Treen announced his intention to veto the Nunez Plan if

finally Passed.13

ProponentsoftheNunezPlanwerekeenlyawareofthe
implications of the Governorrs promised veto' Louislanars chief

executive has considerable power. and influence, both de iure and

de facto. Testimony reflects that the Loulsiana Legislature has

never overridden a gubernatorial veto. A sufficient number of

legislators changed their posit,ion in resPonse to the threatened

veto to assure the demise of the Nunez Plan'

Because of his decisive role in the defeat of Ehe Nunez PIan

after it had received the overwhelming suPport of both houses of

the legislature, Governor Treenrs stated reasons for acting are

relevant. At t,rial, the Governor outlined Ehe considerations

13.AccordingtoArticle3,ssLTandlEoftheLouisiana
Constitution oi tnq, a Uiff nas [n. force and effect of law only

if passed by 6ttt houses "i ii'," tlgistature and delivered to the

oovernor wlthin three days'"i'-p.""ig" YlEh the signatures of the

il:;i|i;s"iiii;";;-;.J tne-goi,er',oi either sisns it or fairs t'o

sign or veto it ,riifrin te1r da'ys 
"-f 

Ce. delivery if t'he legislature
is in sessi;, i,i'--iiiii,in--io alvs if ad journed. Ilence the

legislature h;J no "ottority'!o 
ireate congressional districts

independent,Iytt 
'tn"-piiii.ipation of .the Governor as required by

the state "onJt-ituti.in 
- with' respect -t^o t'he enactment of Iaws 

"smiley:r--IIo.Im., 285 U.S. 355, 373 (1932) '

r9



which prompted his objecEion to Ehe Nunez Plan. He descrlbed as

unfair t,he submergence of St. Bernard and Plaquemines Parishes

under Jefferson Parish, albeit acknowledging that the populaEions

of these two coast,al par ishes would - constitute only a minor

portion of any district. The Governor also wished to maintain

existing dist,r ict conf igurations where Possible, protect the

incumbent, Livingston, and retain Orleansr traditional influence

in the selection of two rePresentatives.

Another concern of the Governor related to racial

polarization, which he perceived to be an inevitable consequence

of the deliberate sculpting of districts along racial lines. IIe

denounced any legislative scheme which intentionally drew

boundary lines so as to consolidate a majority of one race rsithin

a single district. He sPecifically rejected the Nunez PIan,

which would create a 55$ black district, for this reason. In the

staters S 5 submission to the Just,ice Department, prepared by

counsel and approved by the Governor, t,his plan vras characterized

as an att,empt by the Louisiana Legislature to enact into law Ehe

discredited idea of proportional rePresentation.

These concerns were restricted to ths aggregation of blacks

within one districti the coalescence of whites was not regarded

as ominous so lor:3 as Congressman Livingstonrs chances for

re-election were maxlimized. An orleans-based distr icE wit,h a 55t

black poPulation *a? not acceptable to Ehe Governor. As IaEer

20



noted, an orleans-based district wlth a 55t white EpPulation

encountered no objectlon'

The court flnds that the Governorts opposition to the Nunez

plan was predicated ln significant, Part on its delineation of a

majorityblackdistrictcenteredinorleansParlsh.
on the morning of November g, 1981, the Governor announced

his Reconciliation Plan, cognomened Treen Plan X' subStantially

s imilar to the arternat ives previously re j ected by t,he

leglslaturerPlanXprovidedforeightmajoritywhite
dlstricts.14 That afternoon t,he House reversed its position on

theNunezPlanand,byavoteofTgto22,substitutedthe
Reconciliatlon Plan as Ehe teXt of s.B. 5. As thus amended', s'B'

5 was returned to the senate and iras there soundly re ject'ed 
'

throwing the matter into conference comnit'tee'

Appointment, of a conference committee was deferred until a

compromise acceptable to the Governor could be fashioned' Senate

14. Under Treen Plan X, total populat,ion and black and white
populatlon p.i""ntage" foi each of ttre eight districts are:

Dlstrict Total Population $ White I Black

28.87
44.75
r5.53
31. 6r
31. r5
25.90
20.09
31.47

I
2
3
4
5
6
7',

I

525,669
525,885
526 ,7 34
525,067
525,668
524,138
525,r85
525,025

68. 86
53. 36
82.30
67.05
68. 25
73.00
79.L7
6r.96

2L



president Michael OrKeefe of New Orleans summoned ninterested"

parties to a private meeting in the Senate Computer Room'

situated in the sub-basement of the State Capitol. Present at

varying times were senators Nunez, orKeefe and 'Hank" Lauricella

of Jefferson Parish, Assessor chehardy, Jefferson Parish

Representative John Alario, Louisiana A.F.L.-c.I.o. President

Victor Bussie, Congressman Gillis Long, congressional aides to

Boggs, Long and Tauzin, and members of the Senate adminlstrative

staff. Black legislators were not invited, those responsible fo{

calling the gathering having decided that the goal of crafting a

district, with a high minority profile would have to be abandoned.

A plethora oE Eactors tdas consldered at the meeting. Nunez

and chehardy vigorously urged a district dorninat,ed by Jefferson

Parish. Treen Plan X, whiCh split the parish three !{ays, was

discarded at the outset of discussions. Also st,ressed r.ras Ehe

necessity of fulfilling the Governorrs objective of guaranteeing

the re-election of Congressman Livingston by adding enough white

suburban voters to Ehe First District to offset the impact of

inner city blacks votesr ES well as the desire of several

congressmen and state rePresentatives to solidify incumbent

Boggsr electoral base by drawing a district as favorable as

possible for her. An obvious consideration was the concent,ration

of blacks in New Orleans and the racial conPosition of the Second

Dist,r icE. Albeit resolved to avert any retrogression of t'he

22



approxlnately 40S black population in this dlst'r ict, as

conflgured under the Lg72 plan, the 9oa1 of fashioning a dlstrict

whlch was at least 55t Jefferson Parish miliEated againsE raising

substantially the black PoPulatlon Percentage of that district'

Bence the Participants determined that Ehe minorityrs interest' in

obtaining a predoninantly black disErict would have to be

sacrificed in order to satisfy both the Governor and the

Jefferson Parish group. As Chehardy candidly explained:

ini ;,:l;,'?i:t:'""ti":1"";:::i'?,:ffi :li! -;::not 6oin6-to come out of the session satisfied
,ras a;fi4 1o be the blacks. The reason for
that - ,rai that with all of the competing
interesis . . . there was probably golng to be
virtually no way to satis.Ey t-he black members
of trre-iigislatrire . . . insofar as creating a

ro.:"iiti- - brack distr ict [was
conciinlal. . . . They Iminority legislatorsl
didnrt have enough votes'

Record, VoI. III at 28.

Working late into Ehe evening, the sub-basement' conferees

ultimately arrived at that synthesis of conflicting interests

incorporated inEo Act 20. See Exhibit 'c' attached. Jefferson

parish constit,utes approximat,ely 55t of the second District under

the Acti portions of Orleans Parish make uP the remainder' St'

Tammany, st. Bernard and Plaquemines parishes, together with the

lakefroniiNewOrleanseast,andAlgierssectionsoforleans
Iparish, are Placed wiEhin Ehe First Dist,rict. The jagged line

dividing the First and second Districts commences in the east

23



below the west bank of the trtisEissippi River, casting ward 15 and

Plaquemines Parish into District One. Traversing the

ttississippi, the line runs north for approximately 15 blocks and

juts sharply to the eaEt to sever the southern extremities of

Wards 8 and g, gathering predominantly wfite neighborhoods wiEhin

District one. veering north through the midsection of ward 9,

t,hen west through Wards g , 7 , and 8, the line sweePs the

densely-populated black communiEy of central New Orleans into

District Two, and t,he adjolning white neighborhoods which border

take ponchartrain into District One. Moving souEh and west, the

line fractures Wards 5, 41 3, and 2 Eo separate white and black

areas into Districts One and Two, respectively. Ward L4, which

is 9Ot whit,e, is aligned within Distr ict One. Tracing a

northwesterly path along the east bank of the Mississippi, the

Iine extends north to dissect a discrete black concent,raEion on

carrolton, joining one Part wit,h an exPanse of white population

in Jefferson Parish. The t,ot,al population, Percent deviation

from t,he ideal population, Percent black population and Percent

black registered voters for each district created by Act 20 are

as follows:

t 3'..ack Reg.
t'oEe r sE.

I
2
3

Tot,aI Pop.

525,319
526 ,605
526,364

t Deviation

0-03
0. 2I
0. r7

t Black PoP.

29.5
44. 5
15.2

2L.5
38.7
L2.7

24



{
5
6
7
8

525,067
525r 668
524,37 4
525,186
525,389

0. 08
0. 03
0. 21
0. 06
0. 02

31.6
31. 2
25.1
20. I
38. 3

22.3
24.6
18. I
16.9
2L.9

Dlstrict boundaries flxed by Act 20 are clearly raclal in '

character, selectively segregating white and black residents of

New Orleans inEo the majority white First DlEtrict and the more

heterogeneous Second District. When traced on a map of the city'

that portion of the Second Distrlct whlch cuts into Orleans

Parish resembles the head of a duckr with the bill sPllntering

!{ard g , a contlguous black comrnunity of approximately 94 
' 
000

people. $Iard 8, which also contains a high -concentration of

blacks, was sliced three way8, with the extreme northern

(lakefront) and southern segments assigned to District one and

the midsection to Distrlct Trro. Alt,hough other black wards are

fragment,ed,theintegrityofpredominantlywhitewardsis
assured. of the 31 metropoliEan Precincts with a black

population of 95t or higher, most of which are situat'ed precisely

on the duck bill, L7 t ere placed in District one and t4 were

placed in District Two. Act 20rs racial boundary line seParates

coheslve black nelghborhoods in the inner city which share common

political and socio-economic interests premised on income'

transportation, education and housing. similar disruPtion of

white neighborhoods is minimal'

senate secreEary Baer, who with senate staff member Nancy

25



Barringer ,ra: charged with producing a plan reconciling the

disparate interests of the sub-basement conferees' candidly

testlfied that neutral apportionment guidelines heretofore

applied in drafting t,he Nunez Plan were jettisoned in the effort

to attain a comprom1"".15 Districts One and Two of Act 20' with

their distorted shapes and irregular, indented perimeEers, are

notgeographicallycompact.Theseunusualconfigurationsarenot
necessary to ensure adherence to the one-Person' one-vote

rubric. .In contrast to tbe Nunez Plan, ACt 20 deviates from the.

natural geographic barrier Eormed by the t{ississippi River' which

separates an enclave of inner city blacks from whltes residing in

suburban areag.

New Orleansr traditional political sub-unit, the ward'15 h""

15.Itisimportanttoemphasize.thatourcomparisonofthe
effects of the Nunez PIan 

-"fJ-n.t 20 intimates no view of the

former as the final "*pr"""ion 
of stage redistricging policy'

Both the Governor and the.Iegislature 15e integral components of
the legislative process; thul;tpfan -that doel not survive this
process to become law *uJ il' r'"g"rdqd as "proffered current

loricyn wrricrr=I- 
"in.igit 

- Jn-iitt"t. --i:. -*^o"n^1tt:'"r,?ii:irlT"!l3t:::iil[ uX"'iij*"j""J''"r;-. "-rricyiag:r9n 
-ot established state

r ! --L-- ^^--^-Lr^ Ml ^-aaAF. state Senatg v. Bgens, 406
soals. Seq Eixg venth t'tinn@3:3:'iarffir ?ieii

'*,"ir:jl3in"l333
u.S. I87 (L9721 t

io.rin.' tiaz) (three-fudge court) ' sourEs navE t

recosnized t,hat i;;-!;tih;!."-tttt^g1?1t"-",=."..". t:.,ttl""-1"e.i;l;"titi:iD.Kan.- L982) (three-

i;:"fr:;:=irlifliivJ it is of a discietl state eoricv' shaver v'ffii, ,m
"Law'is a sorJrin ;;;;;;;ion of resisrative will'n

(Eoot,noEe continued)
26



been selectlvelY f ragrnented by Act 20. BIack trrcPuIat,ion

16.Judge.rotrnllinorWisdomdescribedtheorigin
signif icance &' til- ward in Tavlor v. McKeithen,

and pofitical
499 F.2d 893

(5[h cir. 1974):

A ward in New Orleans traditionally means

"" rucn eo its residents as I Palish 9r colrnty
EI"'J--ib 

-1t!-- reiidents . rhe citv haE been

airia"a into wards since 1805, anl most. of the
;;;a-b"rnaaries are far more ancient than any
guestion of Negro voting strength'

The direct ancestor of the present ward
structure ,""- adopted in 1852' 9{ard
Ui..a"ii"" have been- changed since then only
;;--th; -addition of nei, wards to accommodate

"i"." newty incorporated iht'o the city, excePt
ioi--" minbr chahge in 1878 to correcE an

ii6..ry -'""a a major change in.. 1880 ,:I"n a

souJiii,ti"r aiea ,ris taken trom the sixth ward
;;a added to the fourth and fifth' The change
;i 1880 waE 

- the last change -in -.the. 
ward

uoundariestodate.ThetlomeRuleCharterof
$;"citi-io. risE nas the. same ward boundaries
i'i- it!-irreaec.ssor, the charter of 19I2'

TheEirst,functionofthewardsg'asto
""ru.'"i 

tfre aistricts f rom which were elected
t,he araermen who formed the governing council
of th;-ai;i. sin"" then, they have been used

as ttre--uisic units of apportionment for
rePresentativesintheUnitedStatesCongress,
f oi p.J"ia"ntial electors, !o! stat,e senators
and -ie-presentatives, .for judges and lesser
officiiis- of the city -ourt's' -fo! cilY
councir*"n rllo, tax assessors, and Eor the
memberi of, lthe numerous central or regional
commit,t'ees errictr form t,he staEuEory st-ructure
of t,he political parEies'- The wards have

"r.o"i-u,iJ 
-- 

"oiring levels of political
org"rrizations. P;rties and facEions have
generiiiy,been organized along ward lines with

(footnote contin':ed) . 
27



concentrations within most, of Ehe nine Orleans Parish wardE split

by the Act have been disrupted, whereas white concentrations

remain essentially inviolate. Not a single ward is divided under

the Nunez Plan.

By disregarding pari.sh lines and uniting populaEed segments

of Orleans and Jefferson parishes wiEh mutually exclusive, oft,en

discordant needs and concerns, Act 20 effectively ignores both

historic boundaries and obvious communities of interest. Since

Jefferson Parish comprises the majority of Act 20's First

District, the interests of the more conservative, suburban white

populace have effectively eclipsed those of the Iess

conservative, urban blacks who make up only 17.9t'of the

districEr s population.

Once completed, the new plan was submitted to Governor Treen

Eor review. After the Governor accepted the Plan on November 11,

198I, Senat,Ors lludson, Nunez and Ot Keefe, and Representatives

ward leaders as major Political powers.

Moreover, the wards are real and
important Parts of Ehe cityr s IiEe and
culture. Residents of the City are likely to
speak of themselves as living in the Twelfth
Wlrdr oE the Seventh, ot the Fourteenth, say
in contexts quite aPart from poliEics; indeed,
in the same way t,hat one would say that he
Iived in t'tar igny or in the I r ish Channe I or i
the lower Garden D is t,r ict. i

Id. at 904-05 (f ootnotes omitted) . Evi,clence adduced at tr iat
6nfirmed Judge Wisdomrs assessment of the New Orleans political
scene. '

28



Scott,BruneauandAlariowereappointedtoaformalconference
committee. None of theEe individualE is black'

A public meeting was convened by the commiE'tee for the

PurPoseofpreparingaconferencereportonproposedAct20.
RepresentativeE Diana Bajoie, John Jackson, AlPhonse. Jackson and

IlenryBraden,membergoftheLeglslativeBlackCaucus,volced
st,renuousobjectiontothecompromiseplanrallarguingthata
majorltyblackdistrictencomPaEsingorleansParlshwasnecesgary
to enable minorlty voters to elect a rePresentative of their,

choice. The testlmony of RePresentative Turnley and New Orleans

MayorErnestN'!{orial'bothblack'illustratesthatthe
consensus of optnion among t,he state's minority leaders T,as thaE

Act20tdasinirnicaltotheinterestsofLoulsiana,sblack
constituency. Following an abortive attempt by Representat'ive

Scott, Eo amend s.B. 5 to expand the second Districtrs brack

populaEionto50.2t,thecompromiseprovisionwasadoptedbyt,he

committeebyavot,eof4to2,withRepresenEativesScottand
Alario dissenting.

On November L2,

conference cornmittee

int,o 1aw on Noveinber

ExtraordinarY Session

1981, t,he llouse and Senate adopted the

report. Governor Treen signed this bill

19, 1981, and it became Act 20 of the First

of 1981.

29



Votinq Patterns and PolarizaFion

There i" a substantial degree of racial polarization

exhlbited in the voting PaEterns of Orleans Parish. By inserting

the 1980 census data in a computerized, steP-wise regression

program, Dr. Gordon Henderson, ptaintiffsr expert, empirically

measured the extent of racial bloc voting ln 39 Orleans Parish

elections between the years 1976-82. This Program first employed

a regression equation to predict the number of votes cast for a

black candidate by registered black voters in a sPecifie

precinct. Another statistical tool, a Pearson correlat,ion

coefficient, was then used Eo examine a}l conceivable

relationships between a single dependent variable, votes in favor

of a. black candidate, and several independent variables, inter

a1ia, the number of black registered voters and total population

per precinct, ln order to isolate the one variable which most

accurat,ely explained why those votes lrere rece ived . The

coefficients derived by plaintiffsr expert demonst,rate an almost

per f ect correlation between a candidate I s race and that of t,he

voters who manifested a preference for his or her candidacy at

the ballot box.17

L7. For each oE the 39 elections studied, the correlation

"o"ee 
ic'ient t ot statist,ical measure of the strength of Ehe

ielationship between the votes received by blacl< candidates and
the number 6t black registered voters, whit,e regi.stered voters or
white persons, couPled- with the number of Precincts from which
Aata w6re obtained, were listed by Dr. llenderson as follows:
(footnote continued)

30



Plaintiffsr quantitative showing of polarization was

pate. Office

8/3/79 Judge, District H

4'/7'/79 Judge, Distr ict H

L'O/'27/79 Judge, Section E

Ld/27 /79 Judge, Section 
-C.|i'/a/lg sta[e senaEe, 5th Dist'

n/e/lg Judge, Sectlon E

4/'4/-gL Councilnan nD'

{/L:6/8L councilman'D"
ilO/L7 /8L Judge, Section C

L0/L/77' uayor
LO'/L'/77 Councilman-at-targe
7o'/t/ll councilman 'B'
LO'/L'/77 Clerk, Crim.. D-i?t' Ct'
4/ 30-/77 Asse ssor , 1t! D i st '
4'/5/80 B.E.S.E. , ?nl 9i"t'
5'/L:1/80 B.E.s.E., 2!d Dist.
g/L3/80 School Board
g7L3/80 Judge, Section -A.8'/4/78 State Senate, 4th Dist'
g'/L6/78 !,lagistrate Judge
g'/L6'/78 Judge, Section B

L:L/l /78 School Board
8/'L4'/76 Judge, Section C

Anqi,/t6 school Board
LO/2/76 Councilman-at-Larqe
tO/2,/le Councilman'B'
LL'/2:/76 school Board
LL/ 4:/80 School Board
l/L/78 State SenaEe, 4th Dist'
l/q/eO Judge, Section A

Black
Req. Voters

.87

.89

.94

.65

.94

.84

.92

.90

.87

.95

.93

.80

.67

.94

.51

.62

.89

.91

.82

.90

.90

.90

.90

.88

.87

.88

.80

.56

.95

.97

White
!9..

-.40
-. 44
-. 4l
-. 04
-.73
-.22
-.69
-. 68
-.40
-. 45
-.42
-. d5

.00
-.72
-.17
-. 31
-.31
-. 45
-.53
-. 39
-.46
-. 40
-. 5r
-. 50
-.44
-. s6
-.21

.r0
-.7 4

-. 39

White

No. of
E-
426
426
426
392

61
426
86
86

392
426
426

78
426

31
194
194
426
392

60
426
426
426
426
426
426

78
426
426
50

392

2/6/82' Civil Sheriff
3/zo/Ai Civil Sheriff
2/6/82 t t'layor
3/20/82 l.laYor
2:,/6/82 Judge, section r
3/20/A2 Judge, Section I
2/6i82 Councilman-at-Large
(footnqte continued)

.83

.90

.97

.98

.92

.96

.80

Req. VoEerE

-.28
-.32
-. 54
-.54 '

-. 56
-. 48
-.14

428
428
428
428
428
428
428

3I



buttressed by the testimony of trained polit,ical observers.

Mayor Morial, now in his second term, has been actively involved

in politics at the state and local levels since his election to

the legislature in L967. ile has been elected to positions in aII

three branches of government. llayor t'torial opined that racial

bLoc voting is prevalent in Orleans Parish. On the basis of a

study of the literature relative to 18 elections conducted in

Orleans Parish from 1960 to L976, DE. Richard Engstrom, a

professor of political science at the University of New Orleans,

found substantial evidence of voting along racial lines. With

reference to the L977 mayoral contest in which Mayor Morial

prevailed, Dr. Engstrom opined Ehat the New Orleans metropolitan

2/6/82 Councilman 'rB'
2/6/82 Councilman nD'

According to Dr. Henderson, the range of a Pearson
correlation 6oefficient, also known as a Pearsonian product
moment correlation coeff icient, is from -1.O through 0 t,o +1.0.
Coefficients of -1.0 and +1.0 indicat,e a perfect relationship
between two variables. In other words, a value of -I.0 or +1.0
enables a statistician to perfectly Predict one variable if he or
she knows the value of the other. Coefficients of !.5 and higher
are deemed stat,istically signiEicant. Va}ues of .7 or higher are
ext,remely rare, and atEesE to a strong correlat'ion between Ewo

varlablei. A coefficient with a value at or near 0, on the other
handr €vidences a weak relationship. !99 qe,nera}ly, D. Baldus
and i. Cole, Statistical Proof of oiscrffiihaEon 5-E32I (1980);
N. Nie, C. HU}l, J. Jenkins, K. Steinbrenner and D. Bent, SPSS:
Statis€ical Package for Social Sciences at 279-?0 (2d. 1975).

The 39 coefficienEs calculated by Dr. pla."on range from
+.51 to +.95, indicating' Ehat a candidat,e's race was the single
variable most predictive of the number of votes received by that
candidate. I

.85

.74
-. 45
-. 35

90
91

32



area rras gradually becoming more polarlzed' Defense expert Dr'

John wlldgen Eostulated, 1n a published study, that racial

polarization determined the outcome in New Orleans school board

elections.
oneexplanationforthePercePtlblegrowthofracial

polarization over the last 15 yearE, Proffered by plaintiffsl

expert Dr. RalPh Cassimere, a professor of history at the

universiEy of New orleans, is that as blacks have begun to gain

access to elective office, white voters have rallied in

increaslng numbers to vote for candidateE of their race' A lower

margin of . victory for black incumbents evlnces a greater

reluctance on the part of white voters to vote for a black' As

Dr. Cassimere observed:

,ti.i"p1l"'":t'r"i"rJl"l1"1?-'""J.:?HUTU-EU:?
Ivoters] . . . traditionally. have voted for
white--candid.t.". I think there is some

teeilng-- Jr illegirimacy abour black
candidates.

Record, VoI. II at 119.

In an effort to rebut plaintiffs' evidence of polarization'

defendants introduced a statistical analysis of white cross-over

voting in three recent New Orleans elections' this analysis'

prepared by demographics expert Kenneth SelIe, sampled returns

froro 37 all-white or black Precincts and purported go demonstrate

that race had no efEect on the results of city-wide elections'

Mr. Selle's use of an arbitrdEY, rather than the preferred random

33



method to select Eest precincts severely biases the resurts ofhls analysis'' The unitE chosen are not representative of the 400
or more precincts in New orreans, and hence are ngt sufficiently
predictive of voting patterns in the city at large. some of Eheprecincts culled were racially heterogeneous. since it is
impossible to ascertain, solery fron the returns of a mixedprecinct, whether individuals who voted for a particular
candidaEe are black or whiter'data drawn from such precincts areof scant probative value. For these reasons, the court attaches
little weight to defendantsr cross-over analysis.

Assuming, arquendor that defendants had established the
exlstence of a significant white cross-over voEe in orleansParish' the court remains persuaded that racial polarization
plays a slgnificant role in the electoral process. The evidence
shows that only those affruent, better-educated whites residing
in the cityrs French Quarter and universiEy districts areinclined to vote for a black candidate. This liberal, white
constituency is unique to Orleans parish. SimilarLy eclectic
voEing preferences cannot be anticipated in the adjacent suburban
parishesr whose recentry enhanced populabions can be partiarly
ascribed to Ehe exodus from New orleans of white families seekingEo avoid court-ordered desegregation of the cityrs public
schools.

Nor does Ehe fact that several bracks have gained erective

34



office in orleans parish detract from plaint,iffst showing of an

overall pattern of porarlzation. To the contrary, Mayor Morlal

attrlbutes his vlctory in the 1982 mayoral race tO his success in

marshalling the black vote. of the approxiruately 70 orleans

parish officials elected throughout the parish, only I5t are

black. A greater number of minorlty officehold.ers would be

expectedinaparishwithablackpopulationof55t.
According to the expert testimony, touisianars majority vote

requirement, which ordalns that a winnlng candidate must receive

more than half the votes cast in an election, inhibits political

participation by black candidates and voters !n a racially

polarized environment. Racial bloc voting, in the context of an

electoral structure wherein the number of votes needed for

election exceeds the number of black voters, substantially

diminishes the oPPortunity for black voters to elect the

candidate of their choice. llr. Selle testified that in Louisiana

a threshold black/white population rat,io of 62/38 is a

prerequisite Eo Ehe creation of a'safen minority district' or

one in which the election of the candidat'e greferred by black

vocersisguarant,eed.Converselyld.so/5oratioofblackto
white population gives rise to a safe white district'I8

t
:

t Is.Demographicstudiespreparedby.Ml.Sellewereofferedto
show proj""t"a-r".iii p"puiiiion groy11 between t'he 1980 and r990

;;;;d;al - tn.o"gh- itrisi stud ies, def endants sousht . t'o Prove a

future increase in the urac[--poplration percentage in Act 20rs
(footnote continued)

35



Discrimination: Past and Present

Louisianars hlstory of racial discrimination, both de iure

and de -E@., continues to have an adverse effect on the ability

of its black residents to participate fully in the electoral

process. Dr. Ra1ph Cassimere t,raced that history to iEs genesis

during the era of slavery, when the franchise tras conferred

exclusively upon white nales. With the advent of post-Civil !{ar

Reconstructlon, black males were permitted to register. Betweep

1868 and 1896 many black state legislators were elect,ed. Tt o

blacks were elected Lieutenant Governor and one, P'B'S'

pinchback, was selected by t,he state senate to fill a vacancy in

t,hat position and later served as Acting Governor. Pinchback

subsequently was selected to serve in Ehe UniEed SEates Senate

buE was not seated. three blacks claimed seats in the United

States House of Representatives but only one, Charles E' Nash,

was seat,ed. charles vincent,, Black Leqislators in Louisiana

s""""d c."r."=sional District of close to 6.7t and, in the First
Oi"Lri"t, oe i.5t. Given t'tr. Sellers failure to distinguish
Utacfs from a significant number of ethnic and racial grouPs
suUsumea within tie Census Bureaurs non-white category, and. to
ippfy his methodology in a consistent manner to aIl parishes
within the t"rg"t"a -efustr icts, t49 court f inds these data highly
li"i"iit -ina - inidequate to pEcv€ '.-hat the Second Distr ictr s black
popit"tion p"t""nl"g" wifi increase signific-a.ntly- under Ehe

lrEsent Act.- - sae rtirfpatr ick v. Preisler , 394 U..S . 525, 535
(i'e.}("irjinai-ngsa.sto@inustbethorough1y
documlntla ina apifiea throughout the State in a systematic, not
an 4 E, manner., ) .

JO



Durinq ReconPtruction. Although black suffrage flourished from

1867 to 1898, a gradual return to white supremacy culminated in

the Louisiana constitution of 1898. At that time' the state

succeededinimlrcsinga'grandfather,clause,aswellas
educaEional and property qualificaEions for registraEion' These

requlrement,s comblned to reduce black voter registration from

approximatelyl35rOO0inlSg5tolesst'hanl'000in1907'
Following the supreme courtr s invalidation of the

grandfather clause in 1915, Guinn v. united states ' 238 U'S' 347.

(1915), voterS were subject to an "understanding" clause which

hindered black reglstrat,ion. PolI Eaxeg 'dere levied, and

registrationrollspurged.Inlg23,Ehestateauthorizedan
all-white Democratic primary which functioned t'o deny blacki

access to the determlnative elections, inasmuch as Republican

oppositiontot,heDemocratlcpartyinthegeneralelections',as
nonexisEent. this strategem Persisted until its condemnation in

smith v. Atlwriqht , 32L U.S. 649 (1944). Citizenship tests and a

prohibition against anti-singIe shot' voting were instiEut'ed in

the 1950s. As a further obstacle to minority access' the

Iegislature establlshed a majority-vote requirement for election

to Party conmlt,tees in 1959. For a quarter of a century, from

1940 to 1964, the St,ates Rights Party spearheaded a strong

movement, against, black enfranchisement and judicially-direct'ed

desegregation. But for those declared unconstitutional by the

37



Supreme Court, the variouE disenfranchisement techniques

implemented by the state and lts white majority parties

suppressed black polltical involvemenE until banned by congress

in 1965.19

Like other southern

racial segregation in

accommoda!ions. DesPite

Board of Education, 347

refused to desegregate in

statesr'Louisiana enforced a policy of

public education, t,ransportation and

the SuPreme Courtrs ruling in -@-
U.S. 483 (1954), local school boards

the absence of a federal court order'

Ig.StatisticsdemonsEtatingtheextentofblack
disenfranchisement between 19I0 and october 1964, incl.usive, have

il;'-ffiiiige-in r,ouisiana iolitics at 299 (Bolner, €d' 1980):

B1ack Voter Registration in Louisiana,
r910-1964

DAfES Black Reg.

Est. Black
Adult PoP.

(t'lost, Recent Census)

t BIack
Adult PoP.

Reg. to VoEe

Oct. ,
Oct. ,
Oct. ,
Oct. ,
Oct. ,
JuIy,
Oct. ,
Dec. r
Dec. I
oct. ,

t9r0
r9 20
19 28
L932
t9 36
1940
19 44
1948
L952
1954
19 55
1950
L962
1954

730
3, 533
2,054
r, 591
1, 981

886
L,672

28,L77
107,844
LLz 1789
L52,578
r58,765
r50,878
L64,7L7

L7 4,zLL (Males)
359, 251
359, 251
415, 047
415,047
473,562
473,562
47 3,562
481,284
48r,284
481,284
514, 589
514, 589
514, 589

.4

.9

.5

.3

.4

.1

.3
5

22
23
3t
30
29
32

38



Even today, the federal courts are compelled to noniEor schools
around the state for conpliance with Brownts teachings. A dual
university system rras operated by the stat,e until 19g1, when it
was dismantled pursuant to a consent decree. public facilities
were not open to members of both races untll the late 1g60s.

As a consequence of this history, separate white and black
societies developed in orleans Parlsh. Segregation was the norm

in the private sectorr ils reflected in the parishrs monochromatic
neighborhoods, ehurches, businesses and clubs. Discrimlnation in
employment was widespread.

While direct impediments to black registration in voting
have been eradicatedr the residual effects of past discrimination
still impede blacks from registering, voting or seeking elective
office ln orleans Parish. No black has been elected to statewide
office in touisiana in Ehis cenEury, nor has any served in
congress since the days of Reconstruction. Notwithstanding a

black popuration of 29.41, only 7t of Louisianar s elected
officials are black. Current census figures disclose that blacks
on the average earn less than whites; 951 of alr persons with an

income of less than $5rOOO are b1ack. Blacks in contemporary
Louisiana have less education, subsist under poorer living
conditions and in general occupy a lower socio-economic status
than whites. Though frequently more subtler €mployment
discrimination endures. These factors are Ehe legacy of

39



hiEtorical discrimlnatlon in the areas of education, employment

and houslng. Such influences, in conjunction wlth past election

practices excluding blacks from the political process, accounE

for Ehe presenE dtsparity between black voter registration and

black population ln Orleans Parish. From the evidence adduced,

ire are persuaded t,hat they account for the lower black turnout aE

election time. A sense of futillty engendered by the

pervasiveness of prior discrimination, foth public and private,

is perceived as discouraging blacks from entering into the

governmental Process.

Conclusions of Law

Invoking its auEhoriEy to enforce the subst,antive provisions

of t,he ncurteenth and EifteenEh Amendments, Congress recently

amended S 2 of the Voting Rights Act of 1965, 42 U.S.C. S f973

(I982) .20 Specificalty designed to reach claims of voEing

20. H.R. 31I2, amending S 2 t,o incorporate a "resultsn test and
extend t,he r965 votlng Rights Act, rdas passed by the House on
October 15, 1981. The Senate adopted Ehe version of S 2 reported
ouE of the Senate Committee on Ehe Judlciary; S. L992r oo June
18, 1982. On June 23, 1982, Ehe House unanimously adopted !!e
Senate bill. As signed into law by Ehe President on June 29,
L982, amended S 2 of the Voting RighEs Act of 1965, 42 U.S.C.
S f9?3, provides:- (a) No voting qualification or Prerequisite tc :

voting or standard, pracEice, or procedure I
shall be imposed o.r applied by any State or
politicat subdivision in a manner which
results in a denial or abridgement, oE 'Ehe

right of any ciEizen oE the United SEates to'
(Eootnote continued)

40



dilutlon heretofore decncd beyond Ehc arnblt of S 2, Report on S.

votc on account of rase or colorr or incontravention 
- ^of the guarantees Eet-'forth i;S 4 (f ) (?) tr2 u.s.a. S 1973 (f )-(2ll r iBprovlded ln subsectlon (b).

(b) A vlolatlon of subsectlon (a) isestabtlshed if, based on Ehe--lotafity ofcircunst,ancesr it is shorn thac tne-poirticaiprocesses leadlng_ to- nonination or ericiion i;the stare or porrEicat subdtvtJiJn -iie 
norequally 

-open . to participatlon by ,airaUers of acrass of cltlze.ns prote-ted uy .iubie"ti"n (a)ln that lts memberJ have less opportunity thahother nenbers or rhe erecloiar"-[J-ii'iiiatpii]ln the pglitical process and to electrepresentatlves of their choice. rh; extentto whlch menbers of- a protected ctiss havebeen elecred to off ice in -in" -i1"i" 
orpolltical subdivision is one circurnstancewhfg! m?y .be considered: provided, Thatnorhing in rhis section estaulis-frffiignt tohave menbers .of a protecl-a- 

"rli" "iiJi"a innunbers. equal Eo thelr proportion tn thepopulation.

we ar-e- persuaded that cong-ress intended the l9g2 amendmentsto Eake effect _imned--iat9ry, an-a tnuE- to appra tL-i"naing cases.See L28 Cong . Rec. H3g 4f - ida i lV ea.- .ltrn" 23 , t9g 2 ) (remar ks ofRep. Sensenbrenner) ; id. aE .sio95 taiify--"d.-- iu,n. lg, l9g2)(remarks of sjn.- KennEly, majoriry ii+r manager of s. 1992).SId., tlartford, Racili v6re biiution'--in.i- Se-jararion ofPowers: An Exploration of the c"niri"t Between the Judiciar"rnEenti and -Ehe Leglslative "Resulisi sEandards, 50 Geo. wash.L'Rev' 689 . 723 (1982). seeerar dlluiion. actions inltiatea prior
:?-*::, 222 !22?:- !1"-:ffecrive g"!i -"i-Ir,.-ir.iia"inii, 

have beendisposed of pursuant to anended s 2. -i"J,-"];::-il;ilr".-, 'crve eeen

iiRig--=?.q==Ei!aiiit'",- _.il;ir - r,io.' rra:effi' ffiHtESi;*:::-t::::., '1:-'-! l ; .,- A. c. P. v.Thomas Countv, Civil lt" iffi [6;-. i:l:-s:ie-:i 'iir:;.!ex. 
reE'TjT rayror v.

apprication or- s z ro' 
-a 

- 
aisr.iffi'pr?n - 

aia - nlt 
.ill!""i".I

retroactiviLv issue because -its "niryii,i rocusla oi-tn" effectsof the plan in euCurJ l-f".tron".

41



L992 of, Ehe Senate Commit,tee on the Judiciary, S.ReP. No. 97-4L7,

97th Cong., 2d Sess. 28 (1982)l Rvbickl v. State Board of

Etections, Civil No. 81-C-6030 (N.D.I1l- 1983) (three-judge

court) , 2L the 1982 amendment, dispenses with the requirement that

a plaintiff demonstrate intentional discrimination in the

imposition or maintenance of the disputed electoral structure.

S.Rep. No. 97-4L7 at 15. See Buchanan v. Citv of Jackson, No.

81-5333 (6th Cir., flled June 7t 1983)l

School Board, 591 F.2d g78 (IIth Cir. 19S2); Mcl'tillan v. Escambiq

2l- In Citv of Mobile v. Bolden, 446 U.S. 55 (1980) ' four
juitices o a that vole dilution claims
are cognizable solely under the Eourteenth Amendment. Under the
fturality's narrop construction, Ehe FifEeenth Amendment bars
6nfy a d-irect, PurPoseful denial or abridg-ment o-f the right oE a
Utaik person io-vo[e. Since former S 2 of the Votlng- Rights Ac!
oi 1953 'iras intended to have an effect no different from that of
Ehe Fifteenth Amendment itself," jg. at 5I, it likewise was not
deemed Eo support a dilution causeEf action. Though the Fourth,
Fifth and eigntfr CircuiEs have concluded that the five-Justice
majority subicribes to the view thaE the Eifteenth Arendment
giies iise to a dilution claim, s9", -e.q.-f - P=erktns v. CitY= 9ffrest He1ena, 675 F.2d 20I (8t,h Cir.), aff 'd mem. U.S.

, iii3-s.ct.- 33 -(r982i; washinqton- vl@E 6effiT2a 913
TffiE-bir. l98l); Ipdqe v. Bux@ (5eh Cir. l98l),
itqs_jub non.' i,o@ . . -U..S. I.92 S.Ct. 3272
ffiupffietE--EElllies a minority of 

- _t-hree.
Roqers---v-r---Log$., 

- 

U.S. 

-t 

102 S.Ct. 3272, 3276 n.5
ffi-.fGETdes tJuEice Stevens, concu5ring,. ald
iustices White and tr{arshalI, dissenEing] disagreed with Ehe
pluralityt s basis for Put,ting aside the Fif teenth AmendmenE.') .

tne Roqerg court expressed no opinion on Ehis issuer leaving
undisffi t,he pluraliEy's decision with respect to the
applicability of t,hL Fif EeenEh Anendment and the or iginal version
oi- S 2 Eo dilution claims. See Campbell v. Gadsen Countv School
eoaill; Mc!{ilian v. EscambiaTo
need hre cons lcle r Ene tssue .

42



@,8S., 688 .T.2d 960 (sth cir. 1982), jg.igg.' !gESt@'
u.s.-,103s.ct.1?66(1983).Guidedbytheaxiomthat
caEes should be resolved, where possibler oo statutory rather

than congtitut,ional grounds, we shall analYze Plaintiffs'

dLlution claim under the amended S 2'22

ksey v. a--.f sup"rvis-qilssffi rrg (5th cir.), ceEE:
inson v i ss ioners 3ds

22. Dilution jurisprudence has evolved primarily in Ehe conEext
of constitutioiir 6hallenges to Etate at-large or - 

mulEiroenber

dlsr,rict,s. Ti;;gtt the suiieme Court haE not directly add-ressed

the issue, thi;-circult. tras recognlzed' that t,he st'andards f or
decision . a"""it--p"a--i" 

- tnJ- murrim6rnber or at-large distr ictlng
cases gove.n---ttr" ad j qclication of clalmE involving the
consr,irutionaiiti- of sinlf 

"-member 
distr icts: . - !#Lt v' S ides '

s7t F.2d zos (5th cir. I97d);-""t..-.- =qtl"9;- 1a6 ffi;
tFenied, 434 U.S. 9OU lLtll )i t1gpLLi4-LLerrrtrrrrcrvrrE5-.--' --'
FH'ezl-' iift cir. rgza aEic

tlL.iaa AAAiiil""""J."tid;;" -n"ippoition'"nt--j[ JlI -.."n!. P:#ti::,,,f,11
?i5;;;:"--;ii; ."eiid" to t,he apPlicabititv of the dirution
rationale to'-"onjieisionaf distriiting casesr w€ believe the
U"ii"i-ri", is- ttrit irrespective of whlther a state legislat'ive
or congressioriaf-alitricti-nq PIan is Ehe.subject. of dispute' ''E
are resuired i; a;aa;.i"" *t"-="^

i str ct, bou
stre th of a mlnor class or inte

Erom Robi.nson v mmlssto

a. I9E2) ehree-
u. s. L.l{.

tora

S ides ,
ourt, 505

nom.
, IYUJ);

rti nt Case

F. 2d
Penns

at 2f9 (quot'ing Erom RooLnspll v:
at 678 i - (eroPhasis in or ig inal e.q., In re:

nE cases, CiviIvania CongresEional DisEr icts
See,

r t ionn

V. avt
no onal tr icts

(N. D. r . t98f) (Ehree- court), a

an v. Otto 454 U.S. rl30 (1982).

sirnilarly, the'totality oE circunstances" analysis, derived
f rom Ehe multi.nember dilutfon cases of White v' Retis.ESrE, ^!\2?r a ,.: r o??l rnd T.irnmcr u- \{eKeithen, ffi Cif .u:4. 755 r1973), and zimmer v' YcKeiEhen'
I973) (en banc) r aff'd ot he ounds b nom. East Carroll

rcl v. rsna 6 ( 1975) (Perrr975) (Per

curiam), s equaIIY aPPIicabLe sEat,e IegislaEive or
congresiional distr icting scheines '
( f oot:rote . cont inued)

.13

According to t,he Senate



A. Constitu.qionalltv of Amended Section 2.

Before proceedlng Eo the merlts of plaintiffsr dilution
t

claimr w€ must address defendantsrchallenge to the 1982 amendment

to S 2. DeEendantE Eake the position that in codifying a test

which relieves complainants of the burden of proving invidious

int,ent I Congress has sought Eo overrule the Supreme Court I s

holding that such intent must be established as a Prerequisite Eo

recovery under either the EourEeenth or Eifteent,h Amendments.

City of ttoblle v. Bo1den, 446 U.S. 55 (1980). Given the

congruence of S 2 and the Pifteent,h tulendment, defendants argue,

t,he separation of Powers doctr lne Precludes Congress Eron

expanding the sEatute to reach claims founded on discriminatory

impact alone. By anending S 2 to accomPlish this impermissibli

aim, the legislature hag, in defendanEsr estimation, usurped t,he

judiciaryrs exclusive prerogative Eo define the limits of Ehe

ConsE i tut ion.

In amending S 2, Congress reaffirmed "the righE of ninorit'y

Judiciary Conmittee:

Whitcomb Iv. Chavis, 403 U.S. L24 (t971) l,
@, and_ their Progeny deart with
ffiEicrIf system features such as at-Iarge
elections, rnajoriEy vote requirements and
Istate legislat,ive] disEricEing pla:'.ts.
Ilowever, Sect,ion 2 renrins the major statuio<Y
proh ibit ion o.f rLl votinq r iqhts
@.

S.Rep. No. 97-4L7 at, 30 (emphasis added).

44



voterE to be..free fron electlon practices, procedures or methods

t,hat deny then t,he same opportunlty to participate ln the

political processes other clttzenE enjoy.r s. ReP. No. 97-4L7 at

28. Two prlncipal obJectlves of the statutory iresultsr test

were pogit,ed: to reach discr iminatory conduct, which might

otherwise evade liability under the nore sEringent lnEent assay,

and to eradicate the contenporary effects of past

discrimination. Ig. at 40; II.R. Rep. No.. 97-227, 97th cong., lst

sess. 3 (1981). To this end, amended s 2 resurrected the

prlnciples applied in voting reglstratlon cases prior to

golden.23 According to the Report of the Senate Cominitt'ee on the

?3;".I?,ffi,,l}3"l;'..Ji"uu"r.,,.i},.J,lL"3:?::Hi":?ffi
whet,her a ,noiitrnim6er or at-large dlstr icting s.ystem denied
blacks and nispanic voters fuli access to the- political
prJ.""s. rocr];i;; 66- whether Ehe districts oPerated t'o dilute
rhe voting "ii.nil-it, of raciaL and ethnic minor ities, the Court
r,"ia trrat -"Eh;-ir'pict-or the district . . . const,ituted invidious
discriminaton:,r 

- Id. aE 761 . The Former FiEth organiz-ed th9
White crieeria inEo--a ctter"nt Eest which permitted the Eact of
dffiEiJ,i-i;-E ""t"otished 

upon p_roof of Ehe aggreg.ate oE Ehese

;;ir;; i;. --z 
imme;- i. !{cKeith$, 16s F: 2d- r?:7^-(::1, 9r::.Il3l^i:i

F;iii"i*rii
Circuit r""on"ialt"a ln.- imiact-or i6n^ted z,iry!"i analys i.". .1n -lig!:Ii'-w'i"-ni"-.i-iri- *- -o.;G. , ize u. s. 22? @6I-, and. . v=illaqe .98

Litan Housi nt CoE!. , 429

I Iplaintif fs asserting. ffi this
ciiiuiC could 

'frevail by demonstrati

F.2dat232iwi"to.lt.,SPecialIyconcurrin@,.!!:
court ruled ttrat whiie a showing of invidious intent is essengial
to recovery under the tr'ourteenIh and Fifteenth Amendments, such
intent, could be inferred from proof of an aggregate of the Zimmer

Eactors.
(footnote conEinued)

45



JudiciarY:

;;;;;e;@,-619r.2d135.8,.1373(5E.h^ji':.191lI:

In pre-Eolden cases - 
plaintiffs could prevail

bv SfrowTiilEat a challenged election law or
pi".i-au* r- in the contCxt of the total
iircumstances of the local electoral ProceEs,
had the result of denying a raclal or language
*inoiiiv an equal chance-to pa.rticlpa-te in tf"
electorll pro-ess. Under this results test,
it was noC necessary to demonstrate that the
challenged election law or P-rocedure tdas

aeiigne6 or rnaintained for a dlscriminat'ory
purpose.

In Bolden, a pluralit,y of the Supreme Court
uior:ffittr -pr 

ecede nt and E ubsEant i ally
increased the burden on plaintlffs in voting
aisciimination cases by - requiring proof of
aiscriminatory PurPose. The Comnltt,ee has
concluded that this intent test places an
unacceptably difficult burden on Plaint'iffs'
It diierts- the j udicial inquiry f ron t'he

A pluratity of the Supreme Court subsequentfY r-e.jected !h9
FiEEh iircuii -s 

ef fort, i; @, to reconcile -Zimmer with
washing!o_q- "na nirinqton 

-- gffi' by -injecting. 
-an-intenE

regui rement, oPi tdas Premised on a

;i;;il;;h;;;ion ih;a irooe of diE;ffiTnatory impact permitted an

inf e?ince of d iscr imiiratory inEenE. Acknowledg ing .t'-hat @' s

ciicu*stantial factors riignt "afford some evidence of a

discriminatory purposer " Ehd pIuraIitY stated that' such f act'ors
woufa not aloire 

-f uinisti suf f icient evidence EhereoE. 445 U.S. at
13. With respict to Ehe significance of Boldenl Ehis.court later
opin"a-itai-;:-: . tt appeais that, t,he Suprenre C-ou-rt .has somewhat
increased Eh; proof oir- Plaintif-f-s fq^ tv9!9^ a!!9!i911 "?ii?:"
af f td sub nom.

t e-m-. r' isn' n=m!"t $3.3' 3t i, i t'13
di""rimination Cases Aft,er Citv of !{obiIe.v. BoIdqn, l0 Fordham
u;b:- r..r. 103 (198I). A ma u-rt Justices
evidently "oncutred'in 

this judgment. E footnote 22, Lnfra'

For an exhaustive survey of vote dilution jurisprudence,
f rom . its origins -in t,he seminal case of @, ?!7
U.S. 533 (1964), Eo EgI@, see the B9P9!! on -S^'^]eez oE Ene

ienate Judiciary- Commi'iEftfrS. Rep. No . 97-4L7 at L9-27 .

16



24. While reaffirmlng the Bolden purposeful discrimination
requirenent, the Supreme Court -Ias itself alleviated to some

e;d;;- Ehe 
' complailintr s burden of ,proo! tn Roo"tl,,I'=,,!?9!E1

U.S.,IO2S.Ct.3272(1982).InRoqerErSixJustices

eructal guestion of whether minoritieE have
iqua'f aciess to Ehe electoral proceEE .t-o a

iiict hi,stor lcal question of individual
motiveg.

S . Rep. No . 97 - 4L1 at L6 .24

Regardless of whether former S 2 purported to track the

Eifteenth Anendnent, and thus raandated Proof of invidious intent,

Congress has since elected Eo broaden the statutory ProscriPtion

Eo embrace conduct whlch is discriminatory in either purpose or

effect. Assuming Ehat anended S 2 constit,utes a valid exercise

EEd-ove6-ttre ttr Circuitrs reliance uPgq plqgE-.gf. the factors
;ai Eorth in zi@, 485 F.2d L297 (5th Clr. 1973)
(en banc) , a o s sub nom. East Carroll Parish
dchool goar@ U.S. 536 (1975) (per curiam), to
raw an inference o icriminatory inEent in a vote dilution

case. By approving iqdicial resort to the ZiEn?t,,criteria,
heretoEore aaj-ualed'- inialeuitE in eqlderl, to es-ElTlfish intent,
;;a- evincing iieiter deEeience co TEffiactual Ei ndings of the
triaI court, tfre Roqers opinion "signals a significanE retreat
f rom the Bolden piEEl[T-ty's racial voEe dilution analysis and a

i"rit.fiziEi6i-o? the ISEeI factors in Ehe context of an

i iniinEi . o . inquiry.'-EErtford, Racial Vote Dilution, 50

deo.WaSh.L.Rev. at -716:17. S-ee Buchanan v. eitv of Jackson, No.
8I-5333 (5th Cir . , f iled Jun=-7 ared
t; -requiie direct evidence of discr iminatory in-tent, where?s
Roqerg resEores the significance of ciicumstantial evidence in
Effiaining the existence of such inEent, the latter repres-enEs
; marked dlparture Erom t,he PluraIity I s opinio_n in Bof9er.t,) ,

ttcMillan v. -gscz.,rnbie Cqq!!-Y-; CardweII, Vot,er DiIuEion and t,he
Stffir=ilTiSFr.aw 853 (1982) . DissenEing Justices
Powell and Rehnquist maint,ain Ehat the holdlngs i1 Bolden and
Roqers cannot,-Ue'riconciled, suggesting t,hat the- goldenGTT-onale
EE6T effect been repudiaced by che majority. Roqer.s v. Lodqe,
I02 S.Ct. at 3281 (Rehnquist and Powell, JJ., dissenEing).

47



of leglslatlve Power, Eherefore, the Bolden courtr s

interpretat,ion of the original S 2 is no longer controlIing.

Accordinglyr w€ turn for guidance to a long line of Supreme Court

cases wherein other key provisions of the 1965 VoEing Rights Act

have passed constitutional muster, such provisions having been

deemed Eo fall within E:e purview of Congressr enforcemenE

author i tY.

Section 4 (a). of Act, 42 U.S.C. S I973b (a) , abolishing

lit,eracy 'tes!s ln any jur isdiction where Iess than 50t of the

voting age residents had voted in prior elections, was considered

a necessary and proper means of irnplementing Ehe Fifteenth

lmendment in South Carolina v. Katzenbach, 383 U.S. 301 (1965).

Addressing the staters contention Ehat Congress had exceeded its

engorcement pot ers under S 2 of Ehe Eif teent,h A.mendment, the

Katzenbach court proclaimed t,hat "Congress has f ull remedial

powers to effectuate the consEiEutional Prohibition against

racial discr imination in vot,io9. " !|. at, 326. The Court' has

since cited Katzenbach for Ehe proposition "thaE congressional

authorlty [embodted in S 2 of t,he EifEeenth lmendrnentJ extends

beyond the prohibition of purposeful discrimination to encompass

staEe action that has discr iminat,ory impact, PerPetuating Ehe

effects of past discrimination.n FulIilove v. KlutzRlg!, 448

u.S. 448, 477 (f9801 ldicta).25
Later in the 1966 Eerm, i.n Katzenbach v. llorqan.384 U.S.

18



641 (1966) , ..the supreme court sustained s 4 (e) of the voting

Rights Act of 1965, 42 U.S.C. S 1973b(e), against an atEack

founded on S 5 of the fourEeenEh Amendment. Sectlon 4 (e) forbade

t,he use of English literacy tests to deny Ehe right to vote Eo

any person who had attainia a Eixth grade education in an

iAmerican FIag" school, in which the language of instruction 'ras

other Ehan Eng1ish. This provlsion was aimed at New Yorkrs

disenfranchisement of Puerto Rican residents. Wrlting for the

majority, Justice Brennan analoglzed Congressr $ 5 authority to,

25.In@,ap1uraIityofEheSuprerneCouttupheId!h"
constttutffi6fEh;'minoiiEybusinessenterp-rise"^provision
oi - tt " Public l{orks Employrnent Act of L977 , 42 U.S.C r

!-6ZOS(f) (2), which dictatei that IOt of federal.grants for local
iuUf i" '- iiri<'s projects . be set, aside for minor iEy - . business
Eni".pr ises. Ctiief ,lustice -Burger 

I s plurality opinion d isplays ?
aJiiiintiaf aEtit,ude toward Cohgressr exercise of its renedial
POWeTS 3

Here rre deal . not with the Iimited
remedial porrrers of a federal court, .. . buE
wiEh the broad remedial Powers of Congress.
It is fundamental that in no organ of
government, stat,e or federal, does Ehere
repose a more comprehensive- remedi"l power
thin in the Congress, expressly charged by the
ConsEltution wlEh competence and aut'hority to
enforce equal proEection guarantees. Congress
not only may induce voluntary acf-ion to assure
compliance with exisEing federal statutory or
consticutional ant,idiscrimination Provisions,
but a1so, where Congress has , auEhority Eo
declare cerEain conducc unlawfutr it' may ' ' .
authorize and induce state action Eo avoid
such conducE. ,

448 U.S. at, 483-84 (cit,at,ion omit,ted).

49



inter 3lig, the plenary grant of the necessary and ProPer clause,

Article !, S 8, cl. 18. Thus, the critlcal question was'whether

S 4 (e) may be regarded as an enactnent to enforce the Equal

Protection C1ause, . . . whether it is rplainly adapted to that

endrr and whether it ls not prohibited by but ls consistent with

r the let,ter and spir iE of the consltitut,ion. r " E. at 65I

(quoting from McCullock v. Marvland, L7 U.S. (4 WheaL.) 159, 42L

(1819) ). Notwithstanding Ehe absence of a record of actual

discrimination, the Court endorsed Congressr passage oE a measure

which remedied historical discrimination, and enabled the Puerto

Rican community to combat prospective state violations of the

Fourteenth Amendment. As Chief Justice Burger subsequentlY

observed, in discussing the import of !9.g.3
To uphold this exercise of congressional
authoiity, the Court found no prerequisite
Ehat application of a literacy requirement
violated the Equal Protection Clause. . . .
It lras enough that, Ehe Court, could perceive a
basis uPon which Congress could reasonablY
predicatl a j udgment t'hat apPticat,ion of
literacy qualifications wit,hin the comPass of
S 4 (e) would discr iminat,e in Eerms of access
to the ballot and consequently in terms of
access to the Provision or adminisEration of
governmental Programs

FuIlllove v. Klutznick, 448 U.S. at 477 (dict,a) (citations

omi E,ted) .

Congressr enactment of r five-year naEional ban on the

utilization of qualification tesEs and devices in EederaI, sEate

and local elections, which Eook the form of S 2(d) of the Voting

50



Rlghts Act anendments of 1970, curren[ version codified at 42

u.s.c. s 1973b, waE sanctloned by the court in Oreqon v.

Litchell, 4oo u.S. LLz (19701.26 Although the Justlces authored

five separate oPinlons, all nlne stressed - that cOngress ls

endowed with substantial diEcretion ln enforcing lhe

Reconstruction amendments. once again, the Fulllrove courtrs

commenEary is instructlve:
The ttlitchelll Court rdas unanimouE, albeit in
sepaia -fons, in concludlng t!a.E Co-ngress
waswlthinttsauthoritytoprohibittheuse
ofsuchvoterqualificationE;Congresscould
reasonably deteimine that lts legislatlon I3s
an approlr iate met,hod of I foreclosing the
posst6iri[v rhar,_ pq.rposef ully discr lnlnatory
iaministrallon of literacy tests would escape
undetected andt attacking the Srerpetuation of
prior purposeful discrlmination, eeen- Ehough
ine us6 oi these Eests or devices might have
d iscr iminatorY e f f ec t,s on1Y.

FuIIilove v. Klutznick, 448 U.S. at 477 (dicta) (citat'ion

omit,ted).

In an opinion issued conEemporaneously wit,h Eg!!g, citv of

Rome v. Unit,ed SEates, 446 U.S. I55 (1980), the Supreme Court

rejected a constit,utional assault on S 5 of the Voting RighEs

26. At issue in ttitchelt erere prov_i-s_lons of Ehe Voting Rights
ActAmendmentsofffiL.No._91-285,which:(t)reducedt,he
mintmurn voting age in sEate and federal elections the Iatter
,das upheld -by the Court, and E,he Eormer str icken as
unconstitutionai i 12) eliminaeeC literacy Eests or devices for a

five-year term in staEe and Eederal elections t,hroughout t,he
Countiy upheld; and ( 3 ) erect ion of a bar to stat,e
requi.riments aisquaiifying voters in PresidenEial elections
also upheld.

5t



Act, 42 U.S.C. S 1973c. Under $ 5t any change in voting or

election laws proposed by a covered jurisdiction will not be

approved t oE "preclealedr' by the United States Attorney General

unless it'doeg not have Bhe purpose and will not have the eEfect

of denying or abrldging the right to vote on accounE of race or

color. . . . " Though f ully cognizanE that t,he E if teenEh

Amendment prohiblts only intent,ional discrimination, the Court

stated that S 2 of that amendment permitted Congress to interdict

election procedures which were no! in and of themselves motivated

by racial anlmus, but which created the risk of purposeful

discrimination or perpetuat,ed t,he ef f ect,s of past

discr imination. }!. at 176, L77 .

Iies this finding:

At the heart of the decision

Congress could rationally have concluded t,hat ,
because electoral changes by jurisdictions
with a demonstrable history of inEent,ional
racial discrimination in voting create the
r isk of purposef ul discr iminaEion, iE vras
proper to prchibiE changes t,hat have a
discriminatory impact. . we find no
reason, then, to dist,urb Congresst considered
j udgmenE t,hat banning electoral changes that
have a discriminatory impact is an ef f ect,ive
method of Preventing States from 'rundotingl
or def eat I ing I the r ights recently won.t by
Negroes. "

Ig. at 177-78 (quoting from Beer v. United States, 425 U.S. I30,

l4O (f975) ) (citations and f -.>Enotes omitted). Such remedial

measures need only be rappropr iate, " wit,hin Ehe meaning of

McCulloch v. ttarvland, in order to ef f ectuaEe subst,antive r ights

52



secured by S..1 of the Flfteenth Amendment'

sinllarly, CongreSS here determined, after extensive

hearings and the Eaking of experE and lay testimony, that the

inEent test inordinately ' burdened plaintif fs in eot'e dllution

ca'es, was unnecessarily divtsive due to the charges of racism

which must inevitably be leveled against individual officials or

entire comnunilies, and, moSE importantly, compelled prot,racted,

often futile inguirils into the moEives of offlcials who acEed

many yearE ago. S.Rep. No. 97-4L7 at 36-37. Ultirnately, thg

staEe defendants could all too easlly advance racially neutral

justifications in rebuttal. In Congressr judgrnent, the danger

that a defendant official would seek to rebut the plaintiffrE

clrcumstantial evidence of purposeful discrimination "by planting

a false trail 0f direct evidence in the form of official

resolutions, sponsorship staEement,s and other legislat,ive history

eschewing any racial motive . seriously clouds the Prospects

of eradicating the remaining instances of racial

discr imination.' Id. at 37 . See Extension of t,he VoEing RighEs

Act: Eearings Before the subcomnit,tee on civil and

ConEtitutional Rtghts of t,he House CommiEtee on the Judiciary,

97th Cong. , lst Sess. 1189 (I982) (t,estimony of Joaquin Avila,

counsel for t,he Mexican-Amei ican Legal Defense Fund)

(conEemporary of f icial discr inination more subt,Ie; 'smoking gun

evidehce of racial animus can no longer be discerned in the

i3



publlc record.).

Congress thus sought to enact a legislative prophylaxis,

calculated to forestall the institution of potentially

discriminatory electoral systems and exEirpate facially neutral

devices or procedures which continue to expose minority voters to

harrn;ul consequences rooted in historical discrimination. S.Rep.

No. g7-4L7 at 40. Summarizing the bases for their conclusions

Ehat ProPer enforcenent, of the Fourteenth and FifteenEh

Amendments required a ban on electlon procedures and practices

which culminate ln a denial or abridgement of the right, to vote,

the drafters found:

(f) that the difficulties Eaced by plaintiffs
forced to prove discriminatory intent
through case-by-case adjudication create
a substantial risk that intentional
discrimination barred by the Fourteenth
and FiEteenth AmendmenEs go undetected,
uncorrect,ed and undeterred unless the
results test proposed for secEion 2 is
adopted; and (2') that voting Practices
and procedures thaE have discriminatory
results PerPeEuaEe t,he effect,s of past
purposeful d iscr imination.

We concur ln Pr,ofessor .\rchibald Coxr s interpretation of

Supreme Court Precedent as vesting Congress wiEh broad

discretion, under Ehe fourt,eenl'.h and Fif teenEh Amendments,

... to outlaw aII vot,ing arrangements EhaE
result, in denial. or abridgement of t,he right
to voEe even t,hough not all such arrangemenEs
are unconsE i Eutional , 5ecause t,h is is a means
of prevent,ing Ehe i r use as eng i nes of

Jg.

54



PurE,oslve and t,herefore unconstitutional
iact'at discr lnlnation'

Eearings on the Voting Rtghts Extension Before the SubconmiEtee

on the constltutlon of the senate Judiciary comnittee, 97th

cong., 2d sess. (Feb. 25, 1982) (PrePared Statement, Of Professor

Archibald Cox at 14). Empirical findings by Congress of

persistent, abuses of the electoral Process, and the apparent

failure of the lntent test to rectify those abuEes' were

meticulously documented and borne out by 'arnple testlmony. Based

on these findings, the legislators reasonably concluded thaE

substantial amelioration of a dilution plaintiffrs statutory

burden of proof rras rrarranted. Although ostensibly cont,radictory

of Ehe Supreme Courlrs holding in Boldenr2T we perceive S 2 as

27. Recognizing that it wielded a figuraEive two-edged-sword,
;;; which hight'Ue t,urned agai-nst. iE in such controverElal areas
iJ- sctroof piiier, Uusing ind abortion, Ehe Senate Judiciary
Comni tt,ee reasoned:

IthasbeensuggesEedt'hat,theCommitteebill
[S. I9921 would overturn a constit'utional
decision by the Suprerne Court. [Boldenl, in
spiteofehestrenuousoPPosiEionofsorneof
the billt s ProPonents to unrelaEed
CongresslonaleEfortstooverrideSupreme
Court declslo'rs in other areas by statut'e
rather Ehan by constitucional amendment.

Ehis argument' simply misconstrues Ehe
.nature of th; proposed amendment Eo section
-ctdo. Certainly, Cong ress cannot' overEurn a

subsEantive int-rpretation of the ConstiEueion
by the Supreme Court. Such rulings can only
b; aluereb under our Eorm of government by

, constitutional amendment or by a subsequent
(Eootnote. continued)

55



merely prescEiblng a potion to remove Ehe vestiges of Past

offlclat discrimlnatlon and to ward off such discrinination in

Ehe future. Congress has not expanded the Constitutionrs

substanEive guarantees but has simply redefined and strengthened

the -statutory protectlons around core constit,utional values, Ehus

exercising its authority wiEhin t,he confines of the

Constitution.23 Or, as t,he president of the American Bar

decision bY the Court.

ThuE, Congress cannot alter the judicial
interpretations in Bolden of the Fourteent,h
and f tf teenth RmendfrEF by simple statuEe.- But the . . . amendment to' section two does
not seek Eo reverse the Courtrs const,itutional
interpreEation... [andl is a Proper
exercise of Congress' enforcement power.

S.Rep. No. 97-4L7 at 4I.

28. One commenEator Postulates:

Because the I result,s ] test is des igned to
reach t,hose electoral schemes EhaE are mosE
likely to permit PurPoseful discrinination Eo
escape deEection, Eo PerpeEuat,e Ehe e f f ects of
past discr iminat,ion, or to f acil itate
purposeful discrimination in Ele prgvision of
bublic services, amended section 2 must be
regarded as within the scoPe of congressional
power under the enforcenent clauses oE the
Fourteenth and Fifteenth Amendments. To hold
otherwise the Supreme Court would have to
depart sharply from precedent. and . adopt
Justice Rehnquist,'s view [outlined in his
dissenting opinion in Cit,v of Rome v. Un lted
Statesl that the congressional enforcenent
6Fis limited Eo Providing remedies Ehat, do
not reach beyond t,ne Prohibitions of the
amendmenEs Ehemselves as int,erpreted by the
Supreme'Court. '

(footnote continued)
55



Associatlon oplned before the senate Judictary committ'ee,

Under this Anendnent, the Suprene Courtrs
int"riieiition- of the ProPer constitutional

"t"naIii--.--.- 
. t i"l reft lntact' only -the

secEi;; 2 itaiutorY standard lisl
changed. . . .

Hearings on the Voting Rights

Subcomnittee on the Const'itution

Conmittee, 97th Cong., 2d SesE'

statement of Davld R. Brlnk at 7) '
Senate crltics of S 2, led by Senator Orrln Eatch' raised

the specter of overbreadth, arguing that the excePtlonal

conditions justifying unequal application of S 5 to jurisdictions

with a history of intentional discrimination did not suPPort the

exEension Of a nationwide ban encompassing noncovered

jurisdlctions. Subcomnittee on t,he Constitut'ion of Ehe Senate

Commlttee on the Judiciary, 97th Cong., 2d Sess., Voting RighEs

Act,Reportons.Lgg2,reprintedinS.Rep.No.9T-4L7at
I7O-71. Absent a record suggesting that voting discrimination

permeates the entire nation, Ehe SenaEe Subcommittee on the

constlt,ution maintained that Ehe sweeping reforns conEemplaEed by

S 2 could not be described as remedial in characEer, and were

consequently beyond the scoPe of congressional enforcernent

poirers. E. at 171. @I9, Note, Amending section 2 oE Ehe

IIartEord, Racial Vote
(footnot,es omitted).

Act ExtenElon Before the

of the Senate JudiciarY

(Feb. 25, 1982) (PrePared

Dilution,

57

50 Geo.Wash.L.Rev. at 148



voting Rights Act of 1965, 32 Case W.Res.L.Rev. 500 (1982). Sg.

Rogers vr__ lgdsg-, 102 S.Ct. at 3283 (Stevens, J., dissent,ing)

(emphasis added) ('Nor, in ny opinion, could there be any doubt

about, the constitutlonality of an amendment to the voting Rights

Actthatwou1drequire...@jurisdictionsEoabandonthe
specific kinds of at-large voting schemes that, perpetuate past

discriminat,ion.i).
. As the Senate Judiciary Committee point,ed out, however, the

S 5 analogy 'overlooks the fundanental difference in the degree

of jurisdiction needed Eo sustain the extraordinary nature of

preclearancer o1t the one hand, and the use of a particular legal

standard Eo prove discrimination in court suits on the other.n

S.Rep. No. 97-4L7 at 42. See VanCe v. Tefrazas, 444 U.S. 252,

265-66 (I980). Nor do the critics take into considerat,ion the

ttitchell courtrs declaration of Ehe constitutionality oE S 2 of

the Voting Rights Act amendments of 1970, striking down lit,eracy

tesEs and devices in both covered and noncovered jurisdictions.

!{hatever their disagreement on ot,her issues, Ehe members of t'he

Court unanlnously endorsed Ehe Iiteracy EesE provision.29

29. Oreqon v. l.titchell,4O0 U.S. at 131-34 (majoriEy opinion,
;;ihor .3t 144-47 (Douglasr- {:, concurring in
part and 'dissenling ii- part) ; _ ;!5!. . at 2L6-L7 (Harlan, J.,
lJn.urring in part and d-issent,iiT in - part) ; id: at 233-36
(Brennan, White and Marshal I, J.J. , dissent ing i'n Par.t ald

"on"uiiing in par!); ;!g. at, 29I-84. (St,ewart, J., concurring in
par E 'and 6 issenl ing inlar t ) . Just ice Har lan remar ked :

(footnote continued)
58



Inthe.finalanalyslsrtheself-llroit,ingcharacterofs2
effectively refutes the overbreadth argument' slnce Ehis statute

does not impose an absolute ban on speclflc election practices'

or allow liablltty to attach without a findtng of dllutlon under

the totality of circumstances ln a given case, the fear that s 2

will precipitate a natlonwide revision of state election laws is

groundless. only a staEe law shown to discrimlnatorlly impact

against minority voters will run afoul of S 2'.

Federalism concerns expounded by S 2 opPonentE, 89, 99g,

I2g Cong. ReC. s6785 (daily ed., June 15' 1982, remarks of

Senator Harry ayrd) ; jtll. at 56517 (daily ed., June 9, 1982)

(renarks of senator llatch), and reiteraEed by defendants herein'

are closely related Eo Ehe seParation of Poe'ers question'

DeEendant,s suggest t,hat, s 2 contravenes the pr inciple of sEate

sovereignty enshrined in t,he Tenth Amendment, which precludes

OespiEe the lack of evidence of sPecific
instanceS of d iscr irninatory applic.ati-on or
effecc, Congress could have determined Ehat
;;;i;i' prej,iaice is. prevarent throughout Ehe

N;ii;, -in6--t-trat litLracy EeEts undu.ry rend
themseives to discr iminatory aPPlication'
eiitir consclous or unconscious. Thls danger
oi violation of S 2 was sufficient to

"rtfr"iir" 
the exerc ise of congrgss ional

;;;;:--it" danger of vioration of S r of Ehe

iif teenttr Amendment was suf f icient' to
aultrorize t,he exercise of congressrional Power
under S 2.

&. at 2L6 (Harlanr J. r concurr ing in part and dissent'ing in

Par t) ( f oot,noEes omi t,ted) .



Congress ft:T wielding its legislative E'ower to impair Ehe

St,at,es I f reedom to structure integral oPerations in areas of

traditional governmental funcEions. Natlonal Leaque of Cities v.

Clause enactment,, held unconsE,itutional as applied to state

employees). Userv explicitly declined Eo entertain Ehe quest,ion

of whether dlfferent results might obtain rrere congress to

encroach upon integral operat,ions of state governments through

the exercise of authority conferred by S 5 of the fourteenth

amendment. See CiEy of Rome v. United States, 446 U'S' at

r78-79.

In South Carolina v. Katzenbach, the Court ruled that'

Congress NdY, as against Ehe reserved powers of Ehe sEate,

utilize any rational means to implement, Ehe Fifteenth

Amendment. Just,ice Marshall subsequently rejected a federalism

argument predlcaEed on Userv, explaining Ehat:

.. principles of Eederalism that might
otherwise ba an obstacle Eo congressional
iutf,ority are necessar ily overridden by the
power to enforce t,he Civil War Amendments "by
ippropriate legislation.'- those Amendments
w6ie lpecifically designed as an expansion of
federal Power and an intrusion on staEe
iovireign€,y. Applying this princiPle, we hold
that Congress had Lhe authority to regulate
state and local voting Ehrough the provisions
of the Vot,ing Rights Act. NaEional Leaque cf
cities, then, provides rro reason to depart
ffii-our decision in South Carolina v.
iltienuJcn ta;a - - i't,he F
Eupeffi contrary exertions of state powerr"
.: . and that Ehe Act, is an aPProPriaEe means

50



forcarrylngoutCongressIconstiEutional
resPonslblitles' ' ' '

cltv oE Rone v. uniEed states, 446 U.S. at 179-80 (citat'ions and

footnotes onitted). @Ell, Fitzpat,rick v. Bltker, 427 U'S' 445

(1975) (S 5 of the Fourteenth Anendment overcomes state trlevenEh

Amendment imnunity) . Citv of .Rome t'herefore teaches that the

r.enEh A,mendnent, does not constrict congressional Power to enforce

the ReconEEruction amendments by appropriaEe legislation- see

Hodel v. Virqinia Surf ace Uinincl & Reclamation Asst n , 452 U'S'

264, 287 n.28 (1981) (dicta). Given our concluslon that s 2 is

an approPriate expression of congressional enforcement authority'

we are persuaded t,hat, Eh is measure does not work an

unconstitutional abrogation of powers allocated Eo the states by

the Ienth emendment.

B. ApPlication of Act 20

Congressional dist,r ict,s may be equal

subsEantially equal in populat'ion, yet fail to

effective representation for all voters '

cartographic t,echnigue known as gerrlrmandering'

oE r as here,

secure fair and

Through the

30 a politicallY

30. ',Gerrymander ing" ref ers to "discr iminatory dis.Er icting which
op".ari.- riiiiiifV t6 infI.aE,e Ehe poli.tical sErengt,h of one srouP
and <ief late Unat of another . " R-. Dixon, The Court, t'he People
and "One Uan, One Vote, " in ReaPport,ionment' in the I970s 7 (!'f '
i6i"UV,'- "dl--'IgZI) 

. 6r. engsci6m defines Ehe 'equipopulous
g"iiy"inder' as "disEricting that. satisfies the one Person, one

;;ia' ftquire*"nt yet is discr iminatory to'dard an identiEiable
(footnote continued)

6t



doninant gro-up is able to manipulate distr ict lines within Ehe

constraints oE Article !, S 2, so aE ito minimize or cancel out

the voting strength of racial or Eplitical elements of the voting

population. " Fortson v., Dorsev t 37.9 U.S. 433, 439 (1965) . See

Gaffnev v. Cunminqs, LLZ U.S. 735 11973); l{hite v. Reqester, 4L2

U.S. ?55 (1973). The amended S 2, Congressr response Eo the

continuing concern over the extent, of minority participation in

the electoral proceEs, provides a Eormidable vehicle for

redressing vote dilution claims

PurEuant to amended S 2, a complainant has the option of

either proving a disc'r iminaLory Purpose in the adoption or

maint,enance of an electoral structure or practlce r oE

demonsErating, "based on the totallty of circumsEancesri thaE Ehe

structure or practice results in a dllution of minoriEy vot,ing

poyrer. 42 U.S.C. S 1973b. g Citv oE Lockhart v. United

st,ates, u.s. _, 103 s.ct.998, 1004 (1983) (t'tarshall,

J., concurring); Buchanan v. Cit,y of Jackson; Rvbicki v. State

Board of Elections. Listed in the Senat,e Repor E are several

group of voters.i Engstrom, The Supreme Court and Eguipopulous
6etr-yroandering: A neniining Obstac.le in the Quest lot Fair and
eiteitive neplesenEation, L976 Ariz. State L.J. 277, 279 n.5.
Just,ice Stevins recently warned thaE slavish judicial adherence
to the goal of Perfect population equality is ''per fectly
compatibl; wit,h geir'mandering of Ehe w_orst s.:(t. I n Karcher v.
DaoqeEt, _U.S. foi S.Ct. 2653, 26tt'(f983)-1ffi=;

ffiluBm:-LjffPuf"=-*" .'33'3'f iI3;
J., dissenting, joined by Burger, C.J.Iand Rehnquist and PowelI,
J.J.); 1!5|. at-2869 (PoweII , J., dissenEing).

62



l.tarshaIl,

evaluate

obJective factorE, drarn fron White v. ReqeEter and Zimmer v'

rr{cRelthen, 485 F.2d L297 (5th Clr. 1973) (en banc) , 3!!l@
ot,her qrounds sub non. East Carroll Par ish Schoo1 Board v.

424 U.S. 636 (1975) (Per curiam), which a court may

ln applying S 2ts itotalit,y of clrcumEtances" test:

1. the extent of any hisLory of ofEiclal
discr inination in the Etate or polit'ical
iuUaivisfon that touched Ehe right of the
nemberE of the rninority group to register, to
,ote t oE otherwise to participate in the
democratlc Process;

2. the extent to whlch voting in the
elections of t,he state or Political
subdlvision is racially Eolarlzed;

3. the extent to which the state or
political subdivision has used unu.sually large
Llection distr icts r tll€ljor ity voE'e
requlrements, anti-single shot provisign"r o(
ottier vot,lng PracEices or procedures that may
enhance tfrJt oPportuniEy for discr lmination
againsE the minoritY grouPt

4. if there iE a candidaEe slaEing
process, whether t,he members of the minor ity
group have been denied access Eo EhaE Processi

5. the extenE Eo which members of the
minority group in the stat,e or polit'icaI
subdiviifon bear the effects oE discrimination
i; Euch areaa as education, enploynent and
health, whlch hinder their abillty - to
partlcipate effectively in tlre Potitical
proces9 i

6. whether policical camPaigns have been
characterized by overt or subtle racial
appeals i

7. the extent to which members of Ehe
minoriEy group have Seen elected to public
office in Ehe jurisdiction.

53



" Additional factors that, in some cases
have had probative value aE part .ofplaintiffs' evidence to establlsh a violation
are:

whether there is a slgnificant lack
of responsiveness on the part of elected
officiits to the particularized needs of
the members of the minoritY grouP.

whether the Policy underlYing the
state or political subdlvision's use of
such voting qualification, Prerequisite
to voting r oE st,andard, Practice or
procedure is tenuous.

While Ehese enumerated Eactors will often
be the most relevant onesl, in some cases other
f act,ors will be indicative of the alleged
dilution.

S.Rep. No. 97-4L7 at 28-29 (footnotes omitted).

No particular number or arrangement of factors need be

proved as a prerequisite to recoveryr tlof is a plaintiff limited

to evidence that fits withln the Zimmer-White analytic

Eramework. To the ext,ent Ehat, Ehe enumeraEed EacEorS are not

Eactually relevant, they may be replaced or substituted by other,

more meaningful factors. Mindful of Zimmer's command Ehat t,hese

indicia of discr iminat,ion are ne ither exclusive nor cont,rolIing,

t,he Senate Judiciary CommiEtee cautioned:

the court,s ordinarily have not, used Ehese
factors, nor does t,he Committee int,end then to
be usedr ds a rnechanical npoint counEing"
device. The failure of PIainEiff to establish
any ParticuLar Eactor, is noE rebuttal
evidence of non-dilution. Rather, the
provision tS 2\ requires the courtrs overall
j udgment, based on t,he Eotali EY of

54



clrcumstancesandguidedbythogerelevant
factois-in the partilular caie, af whether the
voti;; slienglh ot minority vocers 1g' in- the
r"nguig" 

- of -@. and Burns, mlnlnlzed or
canceled out.

$. at 29 n.1I8-

Upon review of the totalit,y of circurnst'ances in the instant

caser the court is satisfied t,hat, the plalntiffs have made out a

prina facie case oE vote dllution under s 2. Evidence of ipast

dlscrimlnation canno!, in the manner of original sin' condemn

action Ehat is not in itself unlawfulri Citv of l(obile v' Bolden'

446 U.S. at, 74, but is relevanE insofar as it imPacts adversely

on a minority grouprs present opportunities to participate in

government. We are persuaded that t'he deleterious rePercussions

of historical discrimination persist tn hindering the potitical

access of minorities 1n orleans Parish'31

As the supreme court commented in Roqers v. Lodqe, L02 s'ct'

at 3279, ', Ivl oting along racial Iines allows Ehose elected eo

ignore black inEerests withouE €ear of poliEical consequences'

3I. A causal nexus between Ehe dlsparate socio-economic st'atus
of blacks artsing f rorn PasE discrimination and a depressed level
of minorlty p"iiti"af -participation 

. need not, be established'
S.Rep. No. gi:lii- it 2\ n.rra (Sili4g.-.w!tl!e ,y'., le,oelte1 13d' uqldf* ; !u,' 

n 

" 
!I5 ; 3 f i*;

ffi"i""--ihidn- tiows ' from the exi-stence of economic and

educational in"gu"iities.' K i rksev v. Boa,r.d 9f SuperYigg-r-s, 5?1

i. ra- 
- 

"L 145. - plaintif Es-have neverEheless succeedecl ln
demonst,raEing t,hat, t,he ccnEempo!ary -effects of gast
ei;a;iminati6n furnish at least a paitial explanation Eor the low
bi;;[-i"gistrition ind voting agpaient in orleans Parish'

65



exist, the

comPlain. . . .r

and without bloc voting the minority candidates would not .Iose

electlons soiely because of their race." The imporEance oE

polarized voting cannoE be underestimated, for if it does not
mlnority voter 'has little reason to

, 430 u.s.
L44,165 n.24 (1977). see Lodqe v. Buxtonr S3g p.2d 135g (5th
Clr. f981), aff rd sub nom. Roqers v. Lodoer _ U.S. _, tO2
s.ct. 3272 (r98r). A consistentry high degree of erectorar
porarization in orleans parish waE proven Ehrough boEh
statistical and anecdotal evidence. particurarly as enhaneed by
Louisianar s majority vote requirementr 32 racial bloc voting
substantially impairs Ehe ability of black eoters in this parish
to become fully invorved in the democratic process. That, several

32. . severely criEicized for its tendency to submerge racialrninorities, zimmer v. McKeiEhen, Ehe.i:iri& rot" reguiremenE:

:.. reguires a run-off election bet,ween Ehetwo candidates with Ehe most votes if nocandidate receives a majorita in the -iirst
erection. the run-ofE ariows wtrite ,oc".i-r["scattered Ehelr votes among various wnitecandidates in Ehe firsf erection -io
consolidate their vote in the second to dereita mlnoriry candidare who received J prriiiliyof the vote in the first election.

Noter Raci.al vote Dilution in Murtimember Districts: Theconstitutional sEandard after washinqEon v. Davis, 76 Mich.L.Rev.694, 697 (rg7g). For oUrf inabiriEy ofminoriEies to forn coalitions or to otherwise infruence othergroups due ro porarization is exacerbated-bi-rnJ"iiiority vorerequirement.

56



black candldates, anong then t'tayor l{orlal, have won office in

Orleang parlsh doeg not foreclose a flndtng of dilutlon. .s.

S.Rep. No. g7-4L7 at 29 n.115; Carnpbell v. Gadsen Countv School

Ef.Eg.l Zlmmer v. It{cKelthen. Conslderlng the parish's 55t black

populat,lon, the 151 success rate of black candldates at the polls

ls substantially lower than might be anticlpated abEent such

irnpedlments to black voting and registratlon as the llngerlng

ranifications of hlstorlc dlEenfranchisenent conJolned wiEh past

and preEent disparltles in education, lnconel enploynent and

houslng. Professor Hendersonr s analysis of voting patte.rns in

Orleans parish shows that the victories of blacks tn munlclpal,

parish and state rePresentative or senate contests can be

ascrlbed in major part to racial bloc voting and some cross-over

unique enclave of llbera1 whltes. If Act 20rs

the black populace of New orleans were allowed to

sEand, t,he eEEective independent impact of black voters would be

unfairly and i1le9a11y minimized.

A tenuous state policy supportive of a Particular

distrlcting schene ls probative of Ehe question of Ehe fairness

or the unfairness of that scheners impact on minority voterS.

S.Rep. No. g7-4L7 at 29. Deparlures from the normal procedural

sequencer oE the speeific chain of event,s leading uP to a

particular legislat,ive decision, bear on Ehe weight Eo be

accorded the state policy underlying a part,icular voting system

voEing bY

sunder ing

a

of

67



or practice. .. See j!. See also Karcher v. Daqqett. 

- 

U.s.

_, ro3 s.ct. 2863 (r9s3) (stevens, J. , concurring) . Af ter

extensive public hear ings and consultat,ions wit,h staf f counsel,

commlttees oE both houses of the legislature formulated a

reapportionment pollcy tailored to maximize black votlng strengt'h

within one of Louisianars eight congressional districts. To

implement thls benign' race-conscious policy, the legislature,

through its joint comnittee, Promulgated a set of neuEral

reapportionment criteria which culminated ln the preparation and

bicameral approval of the Nunez Plan.33

33. It is well-established t,hat a legislative body.may-consider
iii" in drawing district lines, so long as it does not
ai""riminaEe invidiousty or contravene the one person/one vote
pi"""pi. s"qBlliEYe-v.,.x1Yczn.igE,-!!8 u'S' at 483 (n" ' a

Iiiii-.iy efiEroy racrar crrffi-EEE are reasonably -necessary to
I"""i" &*pfi.nte with Eederal voting r igh-ts legislation, even
i[;;;h Ehe sl"te action does not, enta il Ehe remedy of I
"on"Iitutional 

violaEion") ; UniEed Jewish-. orqalrizit.ioqs - . of
wiff.iamsburgh, Inc. v. CareY; I

) ; [larsStn Cir. I98I) ; uPFFhar=r v='==!;o.Y?E9?r

fr'gzi (sctr cir. 1978), cert. denied,-:IIZ u'S' 909 (1979) ' rn
bii"", the Court made it ffir ElFiegislat,ures may engage in
E-c iatly ProPor E ionate red i s t r ict, ing :

"tclourts have Ino] constitutional warrant to
invitiaate a st,ate pLan, otherwise within
Eolerable population - limits, because it
underEakes, 

-not to minimize or eliminate the
polit,ical st,rengt'h oE any.grouP o": Partyr.but'' to recognize it and, through disEr icEing,

. I provide a rough sort oE proportion3l
I (€ptesentaEion in Ehe tegislat'ive halls oE Ehe

StaEe. "

430 U:S. at, 168 (quotinq f rom Gaf Eney q. Cummi-nqs, ILZ U.S. at
7521 .' See NoctreuF'T'ep ace-Conscious
iEootnote continued)

58



TheLou.islanaLeglslatureISpolicy,whlchwouldhave
malntained New orleans' black comnunity within one district, and

vlrtually all neutral aPPort,ionment 9uidellnes, were abruPtly

dlscarded in the Eace of Ehe Governorrs -veto threat. No cohesive

goals replaced the abaadoned policy. Further, rather than

utilizlng the routine ncchanisrn of the conf erence commi t,tee

forloeing the Housers withdrawal of its approval of Ehe Nunez

Plan, t,he legislative leaders convened a private meet'ing to seek

a solution whlch would satlsfy the Governor and the Jefferson

parish Eorces. BecauEe all irere aware that the conflicting

obJectives of the Governor and black legislators with resPect' Eo

a black majority district could not be harmonized, the laEter

were deliberaEety excluded from the flnal declsion-making

ProceSE.

Physical evidence of raclal gerrlrmander ing may iEseIE

furnish strong, objective proof of vote diluEion. Rvbicki v'

Stat,e Board oE Elections i Adams, a l'lodeI St'aEe Reapportionment

Process: The Continuing Quest for nFair and Effective

RepresentaEionrr l4 tlarv.J.Leg. A23 (1977). Minority voting

strength may be .dlsslpated t,hrough one of two Eamiliar

gerrymandering techniques3'stackingr" or Ehe overconcentration

ofnembersaiiaSpecificgrouginnumbersgreatlyinexcessof

Appor t ionment, :
IIarv. L. Rev.' I8 47

The Roles of st,ates and Ehe Federal Courts, 91
(1978).

69



the percentage required to elercise a meaningful choice at the

ballot box, or "cracklngr' the dlvislon of a cohesive population

concentration. Karcher v, Daqgett, 103 S.Ct. at 2672 n.13

(steveng, J., concurring); Nevett v. sides, 57I F.2d at 2L9t R.

Morrill, Political Redistricting and Geographlc Theory at 14-15,

lg-20 (1981). See also Unit,ed Jewish orqanizations, Inc. v.

Esl., 430 U.S. at 158. When a redistricting plan employs the

latter technique in a racially polarized envlronment, the result

is predict,able:

Like a multimember plan, Ia single-member
dist,rict plan which fractures a 9eo9!apt-tically
concentraEed minorit,y voting populaEionl ' '. '' tends to dilute Eha vot,ing strength of the
minority. In Robinson v. CommissignP.r I p

court'r;:%'".""Pr"F.rot;tjt;.::15:ffi :i?*::t
of the . . . denial of the black
minor iEy I s equal accessl t,o Pof i tical
piiticii,ation,- however , remains the
!errltmahder of precinct lines so as t'o
iragment what could otherwise be . a

cohisive minor iEY vot'ing
community. This di-'memberment of
if,e bf a6k voE i ng communi tY [maY
havel the . . . efEect oE debilitaEing
t,he organization and decreasing t'he
particiPation oE black voters-'

Kirksev v. Board of Supervisors' 554 F.2d I39, I49 (sth CiE')r

gs-. denied, 434 u.S. 958 (L977) (suol!!g. from Robert,son v.

Commissioner's Court, 505 F.2d 674, 679 (5tn Cir. 1974). See

also Carstens v. Lamm, 543 F.SUPp. 68, 62 (D.COIO. 1982)

(three-judge bourt) (". . . a redistricting Plan . should not

fracture a natural racial or ethnic communiEy. . . .n)'

70



Act 20'1_ Jagged line dlssects a large concentrated community

of black vot,ers resldlng in orleans Par lsh, dispersing that

corununity into the First and Second Congressional Districts'34

Wlth unerring Preclsion, this line slices through the Cltyrs

traditlonal PoIiEical subunlt, the ward, ln a racially selective

manner, Ieaving intact predorninantly whlte wards whlle carving up

those densely populated by blackE. Homogeneous black Precincts

are separated; whiEe precincEs are not. Racial divislonE have

been preserved at the expense of parish boundaries35 and resPect

34. ExperE testiraony of Dr. Henderson establishes that t,hese

ai.t.icti do not comply wlEh the generally accepted
;;;il;;iion."nt iieuirerninE of comPactness. _ ShaPe, a

subcomponent of ttrat requirement, !,99.. Karcher v. DalAett, I93
s.cr. ar 2872-73 (Srevensr-]-.;- c;n"ffii@on by

;hi;h ai"trict contours may 5i judged in- a. gerr-ymandering case'
Id; Engstrom, The Supreme' Couit ind Equipbpu-lous Gerrymander
iiiO,---i;i;.ai.L.J. at 28Oi Reock, Measuring Compactness as a

Requiremenr "f 
-i;;istitive Apportionment, 5 Midwest, J.Poli.Sci'

;O;--ii -tfgZtt. --iustice Stevens noneEheless cautions against
exclusive reliance uPon odd or tortured configurat'ions ' 51

U.S.L.9{. at qAgl -n.t5. As Dr. Engst'rom points out'
;;;;;;;;parion with shapes may simply 'conEuse form wiEh

finctionl' as relatively symmeCrical, comPact, disCricEs !?Y
effectively dilute a gfoup;s. voEing strength. .n I975
Ariz.sr.L.3. --;t 2_80 

- (+ig**3nr rr,Tr *; :l5""t"rifl!5'":l;Representatlon: ReaPPor
Ii-9e8tt. 

--nnii; acrnowiidging t,his concern, Professor Morrill is
df-a[;'6pinion that a complctness measure provides_an efficacious
deEense against gerrymandering. R. Morrill, Political
i;ei;a;ictitg- and G6osriphic rhebry at 2L. rt is imPort?n! t'o

note, however, Ehat, complctness is not, demanded by federal law'
CarsEens v. f.LqO; Sfotnich v. SEate I Electoral Bd. , 336 F'Supp'
ffiu@fricI
35. Another non-const,iEutional restraint imposed - on

Iiitogr"ptr"i" i" the pr inciPle th.aE distr ict, Iines must' be dratrn
i"-.oincia" with goveinmen*I unig's such as Ehe parish, ward or
(footnote continued)

7l



for the lntegrlt'Y of a natural geograPhic barrier, the

Mtssissippl Rlver.36 Dlscordant corulunlties of lnterest, those

of New Orleanst older, urban core and its surrounding suburban

neighborhoodsT 1E€ Jolned.37 Drs. Henderson and Engstrom both

orecinct. See R. Morr111, Polit,lca1 Redistrlcting and Ggographic
i;;;il-;t fi1i.- . . use of pollt-tcal entit'ies [erectsl ' ' ' a

;i;;ii tcjnt barr ier to gerr-ymander ing whether for racial or

"iitisan 
politlcal reasonE, since lt pievents stringing togeEher

;;;;iill""Li- i -pirticular character -out of disparate poli-t'ica1
iniii-1. "IndiScrirninate districting, wiEhout any regard for
iliiti"if suUaivision . . . lines, qay be lltt1e lore t'han an

&;;- inritati'; i--p1rti"lq gerryma.ndeiing.' - &ev?oliE v.= siTs,
a1i U.S. 533, 578'-?9 (1964) ; emer lcan Bar AEsociation Special
Commlt,tee on blection tiw and Voter Part-icipation, gongressional
i;ei;a;f.ting-ii-ri (1981) (unnecessary disr.uption of these units
|oa- only "uiaJimines r,he ability of constit,uencieE to organize

"iiecliu"fV 
but also . . . incieases the llkelihood of voter

confusion regiraing other elections based on Potit,ical
subdivision geograPhics.' ) .

36. A planrs divergence from natural physical-.features, which
i.ia to'inject some regulqlity. in district configurations, h6Y,
;b;;na- a 

- i-egliimate juitiEicaEion such as adherence Eo the one
p"i""nZon. roie conclptr_ violate_ t,he comPa_ct1^e-s.s t.?!Yirement.
5;;--taali,nony of Dr.- Gordon xenderson, Record., VoI. I at

-
IOI-06. gere, -ih" Mississippi is significant insofar as it
affects personi residing on eiLner bank. Orleans Parishrs inner
city blicks, seParated- from Jeffersorr Parish by the river,
p6Ji"""-i;;-bireei"nt concerns Erom the suburban whites who dwerl
in the latter.
37. By !{ay of elPlanation of the signif icance of Ehis
apportionnent crlterion, MorriII observes: 

_

Citizens vote, in Part, according to
t,helr identification wlth various
int,erests , f or example , relig ious values ,
occuPation, class, oE rural or urban
or ie-ntation. There is a strong basis in
arguing that "effecEive rePresenEation" or
inEtueice on the outcome is enhanced by
grouping of tike inEerests together' ' : '
itris- iJ constit,utionally required only wit'h

(footnote continued)
72



tcEtified a!:a when coupled wlth the phenonenon of racially

Eplarized voting, Chls conblnation of factors operaged to

nlnimize, cancel or dilute black voting strength.

In the courEe of our analysis, we are not unmindful of the

Iegitimate debate among acadenics and courts about the relative

meritE of concentratlng a mlnority population withln one distrlct

or dividing that Srcpulatlon int,o two or more distrlcts slo EhaE, it

exerts a substantial 'influence in each.38 we are convinced that

respect to race- Ttle geographer ri11 also
observethatdistrictswhlchcorrespond
somewhat to nodal regions, a core urban area
and its economic or cultural hinderland united
by transportion ald communlcatlons, wtll have
a greatei sense of unity, awareness of conmon
pr5o1ems, andr PerhaPSr. - Participatlon Ehan
Eistricri which irbitrarily combine dlsparat,e
areas and ignore PaEterns of regional ldentit,y
and loyaltY.

R. ptorrill, Political Redistricting and GeograPhtc Theory- _at
23. See also Busbee v. smithr 549 F.Supp. 494 !q.D.C. 1982)

11;r""fua;e%u@ _ u.s. _t r03 s.ct. 809

if gAf ) ; 
- Cirsrens v. ffiil EreeTudEe- cour-J (preservation oi

,;;ii;e,c@ctfacit|tatedvoteridentity);again,
if,i" critirion is not Prescribed by federal stat'uEory or
constitutional law. See id.

38. E, S-f:., g v. Upham, 536 F.Supp. 931, 949 (E:D.TgI.- )

ilire-TJadffi6u ,..4s6 u...s. 37 (1e82)

i;.-:-.'-iilh;;;- -is ether Ehe Porltical
iniei""ts - 6f a ninority grouP are best maximized by an

"rJirtr"tming 
majority in a single distrlct, are ma;oqiEies in

more than one aistriEt or a substantial ProPortio-n o-f the voters
i;-; number of dist,r ict,s" ) ; Un i ted 9t,a,Ees y. Bg?rd, -of S-uPervi:gE9
at F,.rrraqr corrntv- 571 F. 2 (Sttt Cif . 1978 )of Forrest Countv, 571 F.2d 95I, 955 and n.I0 (5th Ctr. Iv/U)
ffi,,or.:omnent'ators).CompareJordanV.Winter,54I@ommenEators). ^-SPg+e Jordan v. wlnE'er, r{r
F.Supp. 1135, 

-ff lf- (U.o.uiss. r-g87t--TE6-ree

""a-.t^anded for gurEher consideration in liqht oE amendSd S 2r
( (where legislative PreEerence

(footnot,e continued)
73

or Ewo



in the present caEe, the division of the black PoPulation was not

designed to enhance the effectivenesg of the black electorate,

nor is it likelY to occasion such.

Appllcation of amended S 2ts "resultsr tesE to Ehe aggregate

of the facts adduced aE trial, including Loutsianars history of

discr iroination and the impact of that, history on t,he Present,

abiliEy of blacks in Orleans Parlsh to join in the polit,ical

process, the vestiges of discriminatlon whlch take the Eorm of a

narked disparity in Ehe socio-economic conditlons under which

blacks and whltes currently subsist, the parish's racially

polarized votingr ES exacerbaBed by the staters majority voEe

requirement, the tenuousness of Ehe state policy underlying Act

20 and the hist,ory of its enactment , and t,he manipulaE ion oi

dist,rict boundary lines so as to Eracture a cohesive rninoriEy

minority disEricts with at least 40t population expressed, court
Eound nb consEitutional or federal sEatutory bar t,hereto) wiEh
Kirksev v. Board of SuPervisors, 554 F.2d at 150 (emPhasis in Ehe

tve black voting - st,rength is
Eraimeneed among distr icEs, Ieven] t,he presence of dist,r ict,s wi th
barE black population maior i t ies not _ ,only _does ngE necessar i ly
preclude dilEfo;Tut .l . may act,ually enhance the_ Po9sibility
of cont,inued minor lty political impotence. n ) i IIartEord, RaciaI
Vote Dilution and Separation of Polrers, 50 Geo.Wash.t.Rev. at 595
(" . . . the argument t,hat Ehe position of the minor ity is
necessarily enhahced by an oPportunity for ncoalition building"
I E,hrough a distr icting plan Ehat d isperses the ir votes among
ieverai dist,rictsl is diiingenuous, to say Ehe Ieast, when made
in reEerence to a locale 'diEh well-established PaEEerns of racial
division and racial bloc voting where Ehe minority has
syst,ematically been submerged _and ignored.. " ) i Note,
c6nstit,utionai challenges to Gerrymanders, 45 u'chi'L'Rev' 845,
846 (1978) (sPIiEting a voEing group among several disEricts may
have the effect oE diluting Ehe political power of Ehat grouP).

74



voting bloc_, preponderates ln f avor of t'he Plaintif EE '
ClrcumsEantlal evldencc that race played a role tn thc confection

of Act 20 also flgurcs ln the courtrs calculus, although we have

not engaged in the lntent analysis perrnltEed by S 2.39 Based on

the totality of relevant clrcumstances, therefore, the court

concludes Ehat, the contours of Ehe First and Second Congressional

Dlstrlctsr its establlshed by Act 20, oPerate to deny or abridge

the rights of ninorlty voters, who are accorded less opp'ortunity

than other mcnbers of the electorate to ptrtlclPate in thq

political process and to elect rePresentatlves of their choice-

DefendanEsr showing that polltical notlvatlonE were the

primary impetus behind t,he configuraEion of the Plrst and Second

Districts does not provide persuasive rebuttal evidence of

nondilution. !{e agree that legislaEors do not operate ln a

vacuumi hence, parEisan politlcs cannoE realistically be dlvorced

fron any redistricting effort. See GaEfnev v. Cumminqs, 4L2 U.S'

at 753i n re: PennsvLva Conq ress io Distr icts

Reapport,ionmenE CaEes, CiviI Action No. 82-0197, slip oP. at

23a-24a (!.l.D.Pa. f982), gEl,,j.,l ES,. sub nom. @, 51

39. Given our conclusion Ehat Act 20 results in a dilution of
blick voting sErengthr w€ need not draw the ult,imaEe inference of
purposeEul - discrimination from I Ehe composiEe of factors
irerltoEore outllned. The courc: has nevertheless taken int,o
account,r ES but one aspect of ehe EoEaIity of c-ircumstances, Ehe

evidenci that oppositlon Eo Ehe creat,ion of major ity -blackdistrict waE respbirsible, to a significant extent, for the defeaE
of the Nunez PIan and the substitution of Act 24.

15



u.s.L.il. 3911 (U.S.S.Ct.1 July 7 , 1983) . The Protection of

existing relatlonshlps .utong lncumbents and thelr constituents,

and the benefits accrulng to tha state fron the seniority its

delegation may have achleved ln Congressr ilt€ pragmaEic

congiderallons whlch often flgure proninently in the drawing of

congressional dist'ricts. These considerations are not

tallsnanlc, however, and may not serve to pr6tect incumbents by

inposing an electoral scheme which sPllnters a geograPhlcally

concentrated black 5rcpulace withln a raclally Eplarized Parish,

t,hus ninimizlng the black citizenryrs electoral Participation.

Nor do other factors invoked by defendants overcome

plaintiffs' !g!g facie showing. Rellance on New Orleansl

t,radition of dual congresslonal rePresenEatlon can no longer be

justified in light of the Cltyr s substantial decline in

population. Nor is there credible demographic evidence that the

black population of eiEher the First or Second Disericts will

increase t,o a signif icant degree over the next decade.

Accordingly, Ehe court is of t,he opinion Ehat plaint i f f s are

entltled to judgnent on their voting dilution claim.

C. Remedv

Ilaving determined that, Act, 20 does noE, in resPect Eo Ehe

First, and Second Congressional Districts, comPly wiEh Ehe mandaEe

of amended S 2 of the Voting RighEs Act of 1965, judgment will be

76



entered dccla.rlng Act 20 violatlve of f,ederal lar and enjolning

the defendants froo conducting electlonE Pursuant to lts terms'

necognizing that .state legislat,urell havc rprlmary Jurlsdictionl

overIegis1at1vereapE,ortlonruent,.@,|L2u.s.783,
7gS (1923), we shaU tenporartly defer further actlon ln order to

provlde the Loulslana Leglslature with a reasonable opEortunity

to act wtt,hln federal statutory and constltutional limits and

enact a valid new plan Eor the electlon of members Eo the United

SEates Eouse of RepresentaElves.40 'Once a court declareE an

exlsting leglslatlve reaP1prtionment scheme unlawful, 1t [s

"appropriate, whenever practicable, to afford a reasonable

op'o6tunity for the legislature to mee,t, constltutional Ior

federal statutoryl requirernenEs by adopting a substitute measurb

rather t,han for the federal court, to devise and order lnto effect

its own plan.' Wise v. Lipscomb0 437 U.S. 535, 540 (1978)' See

also ttcDaniel v. Sanchez, 452 U.S. 130 (198I) i Connor v' Finch,

43I U.S. 407 (L9771 t Flateau v. Anderson, 537 F.Supp. 257

(s.D.N.y. 1gg2) (Ehree-Judge court)r g.E*.. @., 103 s.ct. 5

(I9g3). Thc flllng period for congresslional candidates will be

durlng the sumner of 1984. Thug, Ehere is ample time for !h'
IegislaLure to roeet and conslder a new redlstricting schene.

40. Def endant,s urged Ehis aLt,ernative dur in9- oral argument',
reouestinq Ehat tn tie event oE Act 20ts invalidation, the court
i;;;;;-th; imposition of a judicially-constructed plin and permit
ifre iegistatule to attemPt, Ehe confection oE a new plan.

77



Should:h"legislatUE€rortheGovernor,choogenot,toact,
rde shall acqult our resPonslbillty to develop and implement a

remedial plan. Accordingly, defendants are lnvited to Present to

thiE courtr oD or before January 3r, 1984, a duly-enacted

legislatlve PIan. This court w111 reconvene on Eebruary 6' 1984

to entertain the Partiesr suggestions for congressional

districting. In the absence of an acceptable leglslative

solution,thecourtwillfashionanaPPropriatePlan.
consideratlon of plalntiffsr request for attorneysr fees and

costs shall be deferred until adoption of an apPropriate remedy'

Counselshallprompt,IyPrePareandPresenttothecourEa
judgment consistent with this memorandum opinlon'

IT IS SO ORDERED.

78



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ACT 20

TXSTRICT 1 I
TXSTRICT 2A



Ct_

IN THE UI.IITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OE TEXAS

CORPUS CHRISTI DIVISION

ABEL ALOIiZO,

vs.

LUTHER JONES,

ET AL.,

Plaintiffs,

ET AT.,

Defendants.

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crvrL Acrrou No. c-8L-227

I

FINDINGS OF FACT AND CONCLUSTONS OF LAW

This case tvas tried before the Court on November 29

through December 2, L982. Pursuant to Rule 52(a), Fed'..R. Civ. P',

the Court now makes its findings of fact and conclusions of law.

Findinds of Fact

1. The City of Corpus Christi, Texas was originally

incorporated in 1845 by an Act of the Texas Legislature. At that

early date, the City was to be governed.O, 
" 

mayor and six

aldermen who were to.run at large. Gamelts Laws of Texas,

General and Special Laws and Constitutions, 1838-1846i VoI. 2,

pp. L436-L437 (First Legislature, L846).

Z. A reincorporation occurred in 1852, Elt which time

the City government was to consist of a mayor, seven aldermen, a

marshal, a treasurerr and a secretary. The previously existing

term and method of election were not changed- Gamelrs Laws of

Texas, General and Special Laws and Constitutions, 1847-1854,

VoI. 3, pp. 1222-1224 (Fourth Legislature, Special Laws, 1852).



(

3. The City was once

r.\

again reincorporated in 1873, a't

which time provision itras made for government by a mayor and, nine

aldermen, to be elected from each of three wards within the City.

Gamel's Laws of Texas, General, Special and Constitutions, 1871-

1873, VoI. 7, pp. 1193-1250 (Thirteenth Legislature, Special

Labrs, 1873). The reincorporation was repealed only two years

later. Gamelts Laws of Texas, General, Special and, Constitutions,
L873-7g, VoI. 8, p. 

.725 
(Fourteenth Legislatuie, Second. Session,

Special Laws, 1875).

4. On April 6,1876, the City Council of the City of
Corpus Christi adopted a general state charter pursuant to
authority granted by the Legislature of the State of Texas. The

charter provid,ed for government by a mayor and, four ald.ermen to
be elected from two wards within the City. Charter of the City
of Corpus Christi, April 6, 1876

5. In 1909, the City of Corpus Christi was granted

sti11anothercharter.LavrsofTexas,Genera1,SpeciaIand

Constitutions, 1909, VoI. 14, pp. 304-351 (rhirty-pirst Legis-

lature, L909). Article VII of this newly enacted, charter provid,ed

for a city council consisting of a mayor and four commissioners.

Commissioners were to be elected "by a vote of the people at
large" and it was specifically directed that 'no person sharr be

erigible to office who sharl have been nominated in any primary

election in a ward, or precinct of the cityr or in any manner

which will prevent the voters at large in said City from

.exercising the privilege of voting for or against said candidate.'
Id., Article VII, Section 2, p. 329.

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5. In 1945, Corpus Christi became a home rule city

pursuant to the provisions of Articles 1155, €t S€9., Texas

Revised Civi} Statutes

7. In 1955, by charter amendment, Provision l,{as made

for tr,ro additional commissioners, so that commencing in APril o.f

1957 and thereafter, the city council would be comp6sed' of a

mayor and. six comrnissioners

8. Until 1970, the mayor and councilmen of the city of

Corpus Christi lfere elected by a plurality vote, with no runoff,

and, without any Provision prohibiting single-shot voting. In

that year, the City Charter was ameirded to provide for runoff

elections so that the mayor and each councilman would be elected

by majority vote. This charter amendment !,ras prompted by the

provisions of what is now Article 7.L6 of the Texas Election

Code. The requirement had its origin in a 1941 statute requiring

such eleciions in cities and towns having a population in excess

of 2OO,OOO. The law did not apply to cities whose charters

provided for the selection of officers by means of a preferential

type of baIlot, provid,ed that the city did not use voting

machines as the legal method of voting. In 1970, the population

of Corpus Christi exceeded ?00,000 for the first time. and Corpus

Christi utilized voting machines in the conduct of City elections.
g. In 1970, the City Council of Corpus Christi appointed

a Charter Revision Committee to make suggested changes in the

City Charter additional to those required by Article 7.L6. The

Committee conr isted of both Anglo and Mexican-American 'residents

of the community. In addition to formulation of language

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regulating the conduct of runoff elections, the Committee also

recommended that four of the City's six councilmen be required to

reside in geographic "councilmanic" districts, but to be elected

at-large. The remaining two councilmen were to run at-large

The Committee recommend.ed that a place system be implemented.

This plan proposed by the Committee $raslbasically the same plan

endorsed by Tony Bonilla, a member of the Committee and. a promi-

nent Mexican-American political leader. Acting pursuant to the

existing charter requirement, the proposed revision was submitted.

to a referend,um vote by the residents of the City, who authorized

its adoption. The referendum was supported by 59t of the voters,

including 54t of the voters in those precincts having a majority

of Mexican-.Nnerican voters. Thus since 1971, the City Council of

Corpus Christi is composed of a'mayor and, six councilmen who

serve ior a term of two years. The mayor and, all councilmen are

elected at-Iarge, but councilmen for Places 1 through 4 must

reside in the councilmanic districts corresponding to those place

numbers.

10. Since J:g52 the qualifications for a cand,idate for

mayor or councilman have been that the candid,at"'b" a qualified,

voter, that he file an application to have his name placed on the

ballot, that the application be in writing, ttrat it be'signed by

the candidate and at least 500 qualified voters, and that it be

filed at least thirty days before the date of the election. No

filing fee has ever been required. The requirement of 500 names

is no longer enforced in recognition of Article 13.53, Texas

Election Code-

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11. No Mexican-American sat on the city council this

c6ntury until 1955. In 1961, two lvlexican-Americans rdere seated,

a pattern followed throughout the decade except in 1965. In

1.971 , ir973, and Lg77, three l,lexican-Amer.icans r,re,re elected. In

L97g, however, only one Mexican-American was elected and in 1981

none lrere elected. Because the successful tlexican-American

candid,ates were often incumbents, onty nine separate Mexican-

'American individuals have been elected, to ttre council in ttris
century. Only one actually resided in the so-ealled, "Westside!'
(see No. 17). A llexican-American has never been elected, mayor, 

.

atthough Gabe Lozano, sr. held that position by appointment in
Lgl8

L2. On the occasion of two vacancies, one in 1978 and,

the other in 1981, l,Iexican-Americans r^/ere appointed, to the city
Council to iake the place of a Mexican-American councilmen who

had vacated:his position. one of these appointees, juarez, arso

Iived in the Westside. He was appointed. in 1978 but was defeated,

in the election of LgTg

13. A Black American has been elected to the City
Council at each election from tgTL to the preserit. .

14. The boundary lines of the city of corpus christi
encompass an area of 116.5 square mj-les

15. fn 1970, the population of Corpus Christi was

204,525, of which 1O8rl}-t or 53.It were Ang1o, B2r9gg or 40.6g

r,lrere Mexican-American, and LO1526 or 5.lt $rere Black

16. By 1980, the population of the city had increased
to 23L,999- Anglo population was 1091995 or 47-42, Mexican-

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American population rvas 108,175 or 46.6t,.and Black population

$ras 11,889 or 5.1t. The total population change in Corpus

Christi, Nueces County, Texas f.rom 1970 to 198I was 29,254 Persons

of which 26,275 or 89.83t were Mexican-American, and L,369 or

4.G8* were Black. While Mexican-Americans no!,, comprise 46.6t of

the population of the City of Corpus Christi, they comprise only

41* of the City's voting age population, and38t of the City's

total registered voters. Blacks account for approximately 5t of

the City's voting age population and Anglos make up the remaining

57t of the voting age population. Anglos'and B1acks thus consti:
' tute 62* of the City's registered voters. In 1970, Mexican-

Americans comprised approximately 31t of the registered voters.

InLg72,thefigurewas31.59s;inLg74,33.1t;inLg76,31.8*;

and j-n L979, 35.89.

17. The predominantly Mexican-American section of

Corpus Christi is commonly referred to as the 'Westside". The

census tracts located in this area are 2r.6, 8, gr 10, 11, L2,

13, 15, L6, !7,18, 19 and 20. All except number 2 are contiguous.

According to the I9E0 census, the total population of these 14

census tracts is gL,L28 or 39.283 of the total popufation of

Corpus Christi. The I'lexican-American population of these 14

census tracts is 701637 or 77.51t of the population of that area

and 65.27t of all the l{exican-American population of Corpus

Christi. The remaining 35t of the Mexican-American population

is scattered throughout some 20 other census tracts. Of the 34

census tracts in Corpus Christi, 30 contain at least 500 l,Iexican-

Americans. From 1970 to 1980, the percentage of l.lexican-Americans

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has increased in 3I of 34 census tracts.

18. Historically, Mexican-Americans have been the

subject of discrimination throughout the State of Texas and,

including the City of Corpus Christi. This discrimination was

pervasive, involving employment, housing, public accommod,ations,

education, and political access. No useful purpose would be

served by attempting to detail this finding. It is noL disputed'

by the Defa.,dants and, the discriminatory history has already been

docutnented, in earlier litigation. See Grayes v. Barnes, 378 F.

Supp. 640, 658' (w.D. Tex. Lg74); Cisner,os v. Corpus Christi

Independent School District, 324 ?. Supp. 599 (S.O. Tex. 1970).

Of course, the most blatant forms of discrimination have since

disappeared., such as the polI tax, segregated schools, restrictive
covenants, segiregated public accommodations, etc. Vestiges do

remain. Thus the average family income and the educational level
of the I'lexican-American population of Corpus Christi is signifi-
cantly lower than that of the Anglo population. For example,

of those Corpus Christi residents at least 25 years old, who have

completed at least four years of coIlege, 81.9t are Anglo and,

only L4.2t are Mexican-American. Mexican-Americahs comprise only

33.8t of the high school graduates as contrasted, with 50.6t

Anglos. The mean family income in Corpus Christi is $22,810.00.

but it is only S16r954.00 for Mexican-American families. Of

those Corpus Christi families with annual incomes below S5,OOO.OO,

65t are Mexican-Americans while only 23.3t are Anglos. Conversely,

of those families rvhose annual incomes exceed $50,000.00, only

10.68 are Mexj.can-American while 86.4t are Anglos. Whether

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because of federal legislation'or national political'trend,s or

otherwise, past discrimination has not prevented }lexican-Americans

from registering to vote in roughly the same percentage as have

Anglos. I'Ihile they remain a minority of the voting age popula-

tion, their numbers have grown signiiicantly in the past ten

years anC as noted above, they now reside in significant nunbers

in all areas of the CitY

19. Much trial attention was directed. to the issue

of polarized voting in the city of Corpus Christi.'Both parties

primarily focused, their attention on elections after 1970, when

the present electoral scheme was adopted. The evidence clearly

presents a pattern of polarized voting as between the Westside

and the other areas of the city, sometimes generally d,escribed by

the witnesses as the "Southside". Dr. Louis Miller and Dr. Fred

Cervantes, both testifying as Plaintiffs' experts, found a high

degree of statistical correlation indicating ethnically polarized

voting. Indeed, Cervantes labeled the. correlation "startIin9"..

Even defense witnesses agreed that Corpus Christi was a polarized

community. Roger Bateman, for example, stated, that there was

ethnic division in the community but that it was "unnecessary'.

!4ike Kendrick, Jt. added, that the "fault lies in both calcps".

Ilayden llead, Sr. believed that the Mexican-American leadership

bore the responsibility for the problem.

2A. The effects of this polarization are not so

readily apparent at first glance, however, because of the presence

of slating in several key elections during the 1970's. Because

of this factor, the polarization between Westside and Southside

-8-

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has not necessarily been based on the ethnicity of the candidate

but rather on whether the candidate has been perceived as being

representat.ive of l.Iestside or Southside interests- For examPle,

in 197I, the voters were offered a choice of three different

slates, the NOW Party, the Citizens Party, and the Peoples Party.

Only foui i.ndependents ran for the seven positions on the ballot.

The two sEongest slates r ds conf irmed by the election returns,

rtrere the NOBI Party and, the Peoples Party. The Peoples Party was

strongly favored by the voters in the Westside although it

featured onLy twb Uexican-American candidates, Canales and Reyna.

Conversely, the NOW Party, heavily supported in the Southside,

offered three Mexican-American candidates, Bosquez, Lozano and

Gonzalez. Neither party offered a Mexican-American candidate for

mayor. Instead, the third, party, the Citizens Party, featured

AbeI Chapa as a candidate for mayor. Nevertheless, in the general

election, Chapa was ovenrhelmingly defeated by the voters in the

predominantly Mexican-American precinctsr. usually running ttrird
behind Sizemore and llcDonald, the mayoral candidates of the other

two slates. Voting was essentially polarized on a slate basis.

Thus, I{estsid,e voters heavily supported Anglo" Ctoor"r and Bennight,

running on the Peoples Party, against NOW candidates Bosquez and

Lozano. Voters in predominantly Anglo precincts did just the 
.

opposite. The NOW Party candidates won all seats except for
P1ace 5, which vras vron by Peoples Party candidate Branch. Branch,

a Black, r^/on heavily on the Westside but also ran ahead of the

ticket in other precincts to defeat Anglo Ben t4arks. It is
noteworthy that the Bonilla family, considered prominent leaders

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in the tVestside conrmunity and firmly allied with the Plaintiffs

in this case, supported the NOI{ Party candidates in L97L. J. A.

("Tony") Canales, another t'Iestside leader who ultimately ran on

thePeop1esPartysIate,wasinitia11yaPProachedbymayora1
candidate Ronny Sizemore to run on the NOW Party slate. Canales

declineC because the NOt{ Party slate d.id not have a Black candi-

date and, because Canales did not consider Bosquez and, Lozano to
be adequate representatives of the Mexican-American community-

Canales did. not want to be part of a slate if he was griven no

voice in its composition.

2L. The lg77 City election again featured, a contest

between two slates, the "Unified Corpus Christi party,, and the

'Seven for Corpys.Christi Party". Additionally a host of inde-
pendent canCidates filed for almost. every place, including the
mayor's seat. The "Unified" party featured two l{exican-American

candidates, Ruben Bonilla and, Rucly Garza, and drew ovenvhelming

support on the Westside. This slate featured, an Anglo, David, L.

Perry, dS its mayoral candidate. The "Seven' party featured

three Ivlexican-American candidates, Gabe Lozaro, sr-, Eduard,o E.

De Ases and David Diaz. Lozano and De Ases.were incumbents.

Although westsid,e voters strongly preferred the "unified" srate,
De Ases running on the "Seven" slate drew enough Ifestsid,e support

to win without a runoff. The "Seven" slate won most of the
races, but ind,ependent Jason Luby was reeLected, mayor with over-
whelming lTestside support and "Unified" candidate Gill, the
winner in Place 2, won every Westsid.e box.

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t

' t. r \;

((i

22- rn the ]lgTg election, only one slate was offered,
to the voters with a host of independent candidates running for
all positions. The srate, carred the ,'unite corpus christi
Party", was headed by mayoral candidate Luther G. Jones, .Jr. The

slate featured Mexican-American candidates for three of the six
council seats, with a Black cand,idate foi: the fourth seat- Diaz
won in Placa 1 but the other two Mexican-American slate cand,id,ates,
incrud,ing appointed incumbent Juarez, were defeated by Angro
independents

23. fn the 198I election, only one slate developed.
This was carled, the "Taxpayers r party,, and featured, trvo Mexican-
American candidates. Apparently, this slate was not endorsed by
politically influential citizens on either the westside or the
southside, which is confirmed by the fact that only one of its
candidates made the runoff and none was elected to office.
rnstead, the 1981 election rtTas a battle of independ,ents. Mexican-
American cand,idates fired onry for prace 1, place G and, for
mayor. The two Mexican-American mayoral candidates received
negrigibre support even in predominantly Mexican-American pre-
cincts. on the..other hand, councilmanic candidaces r;una and,

cavazos ran strong races and made the runoffs against Anglo
opponents. Luna was running as an incumbent, having been appojnted
to the councir a few months earlier to firl a vacancy created by
the resignation of David Diaz. Luna and cavazos both lost, with
the citywide voting clearly following ethnic lines. The result
was that there is no Mexican-American on the present city council-
Parentheticalry, cavazos ran for state Representative later in

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198I and was elected from a single-member district. It is also

noteworthy that Luna, running in one of the geographic districts,

won handily in those precincts cornprising the district itself yet

lost in the overall citywide vote

24. Mexican-Americans !.rere clearly involved to varying

degrees in the slating process during the 1970's. Recognized

Mexican-Anerican leaders helped form the unsuccessful slates in

1971 and. 1977. At least in 1971, there was some effort by

mayoral caadidate Sizemore t,o form an alliance with the Mexican-

American leadership. At noted in No. 20 above, Sizemore tried to

persuade Canales to join the ticket and, was successful in obtain-

ing the support of the Bonillas. The L}TL eampaign became very

bitter, however, and featured open appeals to ethnic voting,

couched in terms of the then highly controversial school busing

litigation. See No. 28. Slatemakers continued to select

Mexican-American candidates thereafter, but there was little

evidence that the Mexican-American community had any voice in the

compositj.on of any of the later slates endorsed. by Southside

leaders.

25. A candidate can and has won a citywide election
without winning any Westside boxes but, no Mexican-American

candid.ate could win a citlnride election without strong Southside

support. Indeed, at least since 1951, only one Mexican-American

has ever won election $rithout running on a slate endorsed by the

Anglo community. In 1975, Gabe Lozano, SE., running as an

independent, won in a runoff. At that time, he was an incumbent,

having successfully run on the NOW slate in 197I and 1973. He

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.ran again on a slate in L977. No evidence was offered, as to why

he ran as an independent in 1975. In any event, his slate

opponent.that year vras a Mexican-American, Rogerio Lopez. The

importance of slating to the success of a Mexican-American

candidate, at least prior to L979, is evidenced by the career of

Ricardo Gonzalez. In 1973, Gonzalez ran for Place 6 as a member

of the NOW Party. He was opposed by three independents, all

Anglo males. That year, in those precincts where the voting

population was less than 508 lllexican-American, Gonzalez won 518

of the vote while his three Anglo opponents combined won onJ.y

39t. Two years later, for some reason not disclosed, by the

evidence, Gonzalez ran as an independent. This time he filed for

Place 5. Eis opponent was Edward L.. Sample, a Black, 3s11ing on

the United Citizens Progressive Party slate. Again, looking only

at Anglo-dominated precincts, the returns d,isclose that Gonzalez

suffered a dramatic reversal of'popularity. In the 1975 runo{f,

he could muster only 36t of the vote while slate candidate Samp1e

amassed 54?. In Lglg, slating apParently began losing its
political impact. The only slate offered that year was headed by

Luther G. Jones, Jr., whose Lg75 slate had been domewhat ineffective,

losing four of seven places. In Lg7g, Jones' slate fared, slightly

betterr'winning four of seven including Jonesr mayoral seat- It
is noteworthy that two of the three'losing slate candidates were

Mexican-Americans. Without any viable slate in 1981, in a choice

between two Anglo cand.idates and two Mexican-American cand,idates,

the Westside voters over:vrhelmingly supported the Mexican-American

candidates while the other precincts overwhelmingly supported. the

(

I

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Anglo candid.ates.

26. While the Westside voters cannot elect a candidate

to a city*'ide office, they cannot be totally ignored in city

politics. Their voting strength has und,oubted.Iy made it

politically wise to place Mexican-American candidates on any

viable slate. l1oreover, on a few occasions--most notably 1975--

IVestsid,e support has been instrumental in electing Anglo inde-
pendents wb.o have d,rawn enough Southside votes to win. No

Ivlexican-Arserican independent could reasonably expect to do the

same. Indeed,, Tony Canales expressed the opin5.on that in recent

years, Westside leaders have "tended to give up" on city races,

preferring to concentrate on county, state, and federal politics
where their efforts rvould more likely bear fruit.

27. 'It is obviously easier to conduct a citlnride
electoral campaign ab a member of a s1ate. Not only is it easier

to raise funds on. a slate basis, but it is also easier to campaign

because different merabers of the slate can appear at different
functions in different areas at the same time. rn the two main

slate-versus-slate showdowns, namery 1971 and 1977, the srates
more identified with the Anglo business communitt' were able to
raise substantially more campaign fund,s than the competingr

srate. However, the amount of campaign contributions.has not
necessarily correrated, with success. For exampre, in 1975, the

Luther Jones slate reported approximately $4Irooo.oo in campaign

contributions and yet lost f our out of seven seats to irid.ependents.

That year, the successful independent candidate for mayor, Jason

Luby, reported campaign contributions of only 93,655.00.

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'successful independ,ent candid,ate Gabe Lozano, Sr. reported

contributions of $4,160.00. Successful independent candiclate

Ruth GilI rePorted contributions of 910,759.00 and unsuccessful

mayoral candidate Haro1d Branch received contributions of

$I0rO40.O0. In ltglg, unsuccessful independent mayoral candidate

Bob Gully reported contributions of $34;677.O0, almost as rnuch as

the tota1. contributions reported by the United Corpus Christi
party. Irr 1981, while the evidence of campaign contributions of

all of the candidates is inexplicably sketchy, it appears that

independ.ent candidate Herbert Hawkins, the only Black, won his

citlnuide election on a campaign budget of $3r542.00. Obviously,

the cost of a citlneide campaign is normally more expensive than

would be the cost of running in a single-member district, dt

I'east for an independent. It is also probably true that if '

councilmanic districts were smalLer in size, more candidates

would be .tempted to run for office

28. The only evidence of an.open ethnic.appeal during

a City campaign in recent history involvbd the 1971 election.

The appeals !.rere made by various boosters of the l{OW Party and

were directed against the Peoples Party. The appeals !{ere couched

in terms of opposition to the Steelworkersf Union and "the causes

they support". Other campaign propaganda that year was more

explieit, reminding the voters that the union had "sponsored the

school busing case'. See Cisneros v. Cogg Christi Independent

School District, gg3ra.. There is also evidence of blatant ethnic

appeals in school elections in 1950 and L962. See Graves v.

74-C-95Barnes, 378 F. Supp. at 659; L.U.L.A.C. v. Williams, C. A.

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(S.O. Tex. 19791. There is no evidence of any similar campaign

tactics since 197I, except that Bob Gulley asserted that reverse

discrimination appeals were made against him in the L977 campaign.

29. During the period from 1971 through 1981, 25.72

(I98 of 77L) election judges $/ere Mexican-American; I89 of 765

(24.7*) it-ere alternate jud.ges

30. During the period, from L97L through 1981, City
Council appointments of Mexican-Americans to boards and

commi'ssions ranged.from 28t to 43t of the overall total. fhe

average was 34.4t. curiously; the highest percentage T,{as in Lg79

and the lowest in 1981

31. In L977, the Cityts personnel were 50.1* Dtexican-

American, 5.7* Brack, and 34.2t Anglo. . By 1980, wlexican-American

emplol,rnent had increased to 50.6t, Black emplol,ment to 9.0t, and

Anglo emplolnnent had declined to 30.3t-

32. In the highest grade of employment, level 26 and

above, for the period 1977 through 1980,. the number of Anglos

increased one from 142 to 143 but decreased in percentage from

84t to 78*.. The number of Mexican-Americans increased, twelve,

from 25 to 38 (15t to 2t*), and the number of giacfs increased

from one to two.

33. E'rom Lg77 through 1990, the City,s employment in
the second highest grade, grades 23-25, showed a decline in Ang1o

employrment from 102 lo 97 (57t to 58t), but an increase in
Mexican-American employment from 47 to 64 (3rt to 39t) and in
Black employment from 3 to 5

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34, From L977 through 1980, the City's employment in
grades 18 through 22 showed. a decline in Anglo employment from'

.' L44 to 117 (558 to 45t) , with a corresponding increase in Mexican-

. Americans from 108 to L27 (4It to 49t), and in Blacks from 12 to
15.

35. From 1977 to 1980, Mexican-American emplolment on

the police force increased, from 109 Lo ]-27 (from 33.9t to 3B.Gt)

while Anglo employment decreased from zo]- (52.6t) to I89 (57.58) -

During this sErme period, the employment of Mexican-Americans by
' ahe fire department increased, from 141 to l5Z (from 46.4g to

50.5t) whiLe Anglo employment decreased from 157 to 145 (from

51.6t to 45.6s)

35. In. 1980, a complaint of discrimination to the

Office of- Revenue Sharing led to an investigation of hiring
I

. Practices in the City of Corpus Christi. The report conclud.ed,,

a.mong other things, that while .females !.rere underrepresented in
the City's work force, the overall city emplolrment of Blacks and

Hispanics $ras reflecti.ve of their available labor force. The

report further concluded, that while the City had recruited, a
substantial number of minority applicants for upper-level
positions, Hispanics were "clearly underrepresented', in adninis-
trative positions and that from 1978 to 1980, the City had, made

"Iittle Progress" in employing Hispanic applicants to the few

administrative vacancies that did exist. In regard,s to pro-

. fessional positions, the report concluded that the City rras

striving toward increasing its minority representation. The
,

rePort further found that Hispanics were substantially represented

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in technical, clerical. and service maint.enance positions and were

sufficien-.}y represented. at all levels within the police depart-

ment. In sum, rvith respect to all positions "below the adminis-

trative and professional Ievels", the report concluded that
Irispanics were employed, in proportion to their labor force

represent,a..-ion.

37. In the opinion of incumbent councilman Herbert L.
:

Hawkins, JE-, a B1ack, the present city council is responsive to
the entire community and does not discriminate against either
Btexican-Americans or Blacks. However, Hawkins believes that
certain loag-time.city staff members still cling to old attitudes,
and this caused him to urge the City to adopt an affirmat,ive

action program for recruiting more minorities to its payroll
The council is apparently working on such a plan.

38. The evidence shows that the City of Corpus Christi '
has provided. suitable services to the Westside area, such as

sewer, water, sanitation, police and f,ire protection. What

litt1e" evidence was presented on the subject indicated, that the

Westside does have a fair share of fire stations, health care

facilities., public buildings, paving programs, and public transit
facirities. The !.Iestside area is, however, the older part of the

City

39. A poIl conducted in 19BO under the auspices of
corpus christi state university ind.icated that 75.6t of the

Mexican-Americans surrzeyed thought Corpus Christi was becoming a

better place in which to live. The percentage of Mexican-

Americans believing that city services are satisfactory was

(

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a

approximately the same as that of Anglos. Two of the most

significant percentage differentials were in the response to the

proposition that the City should acquire more land. for parks and

playgrounds and that the.City does not have enough public recre-

ational opportunities. ltexican-Americans agreed with both

propositions by 77* and 64t, respectively, rvhile only 50t of

Anglos agreed with each proposition. Other evidence suggested

that this is one area in which the City has not been fully
responsive. to the needs of the Westside resid,ents, concentrating

instead, on waterfront areas and water-oriented, recreation not as

wid,ely appealing to Westsid,e residents.

40. There was evidence of some lack of responsiveness

by the city council in more subtle ways. For example, the

evidence indicated that the city council at one point granted, a

ten-year lease of a City auCitorium to Las Donas de Ia Corte,

which is apcarentry a predominantry Anglo sociar organization,

but denied a similar reguest by the League of United Latin
American Citizens (LULAC). On another occasion, the city council
approved a coritribution to the Arts Council while refusing to
support the hosting of a segment of "siempre en 'Domingo,,, an

extremery popular television program originating in Mexico and

popular throughout the Southwest. On another occasion, *",city
council supported efforts by the Junior League to improve a park

on the Southside but refused to agree to a LULAC proposition to
refurbish a park on the Westside.

41. The historical background leading to the ad,option

of the present electoral system does not support a finding that

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the system rvas developed for the PurPose of discriminating

against llexican-Americans. The initial change to an at-Iarge

system resulted from an act passed in 1909 by the State Legis-

lature. No one suggests that this was d.one to deprive Mexican-

Americans of access to the political system. Instead, it seems

to have resulted from a national trend developed in response to
perceived. graft and corruption nurtured by the so-called, ward'

system. Ev-en today, debate continues over the merits- of an at-

large systert versus single-member districts, with experts dis-
agreeing over which system best serves the general good, of a

community. Likewise, the requirement of a majority vote and

runoff cannot be traced to a discriminatory intent. This require-
ment derives from a I94I act of the Texas Legislature which

h difficulties encountered in conducting

elections in cities with populations of more than 200,000 and

which utilize voting machines. Finally, there is no evidence

that the charter revj-sion of 1970 calling for four councilmen to
reside in designated geographic districts was intended. to dis-
criminate against Mexican-Americans. At the same time, the city
has certainly had the opportunity to adopt a single-member

district scheme. The i.dea was proposed by some members of the

City Charter Revision Commission in 1970 but was never adopted

even at the subcommittee Ievel. There was evidence that the

topic surfaced again in a Charter Advisory Commission in Lg74 but
was never officially proposed. The most recent occasion was the

so-caIled committee of sixteen, appointed by the city council in
1981, apparentry for the express purpose of recommending air

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electoral scheme which would make the council more representative

of the overall community. The Committee was composed of seven

Anglos, seven llexican-Americans and two Blacks. The Committee

could never reach two-thirds agreement on any plan and apparently

terminate,i its work once the present lawsuit was filed
Conclusions of Law

This Court has jurisdiction to hear and detetzrine

the issues raised, in Plaintiffs' complaint. 42 U.S.C. SI973 , 2g

u.s.c. ss1331, 1343

2. Plaintiffs seek relief under both the Voting Rights

Act of 1965, 42 u.s.c. s1973, gt s€g., as amended,, and arso und,er

the Fourteenth and Fifteenth Amendments of the United States
Constitution.

3. To prevaj.l on their constitutional claims, plain-

tiffs must prove that. the voting scheme under attack was either
conceived or has been maintained for invidious purposes- rn

other words, Praintiffs must prove a racialry discriminatory
intent on the part of the Defendants. Bogers v. Herman Lod,ge,

102 S. Ct. 3272 (1982). The Court has found that the at-large
electoral scheme was not adopted for the norro". o, discriminating
against Mexican-Americans. I.rhether it has been maintained, over
the past decade for that purpose is a closer question, but one-

that the Court need not reach in view of the conclusions reached

on the Voting Rights Act claim.

4. The Voting Rights Act ("Act") provides that no

voting practice or procedure sharr be imposed or applied by any

political subdivision in a manner which results in a denial or

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abridgement. of the right of any citizen to vote on account of

membership in a language minority group. The City of Corpus

Christi is a political subdivision within the meaning of the Act

and the election system used for election of council members is a

voting praciice or procedure within the meaning of the Act

5. The Act was amended by Congress effective June 29,

Ig82. The anended, section provides that a violation of law is
established. if, based on i'the totarity of circumstances, it is
shown that the politicar processes leading to nomination or
election in the...poritical subdivision are not equally open to
participation by members of a class of citizens protected by (the

Act) in thai its members have less opportunity than other members

of the electorate to participate in the political process and to
elect represent'atives of their choice". 

,

6. The Senate Report on the amendment expressly states
that the Pu=pcse of the amend,ment was to eliminate the requirement

that plaintiffs Prove a discriminatory intent, instead substituting
a "resu1ts" test. S. REP. No. L992,97th Cong., 2d Sess. 15

(1982). To establish a violation und,er the amended Act, plaintiffs
can show a variety of factors of whi-ch the report describes some

nine as being "typical". rd. at 28-29. These factors have been

gleaned frorn prior case Iaw, most notabry !,Ihite v. Reqester , ALz

U.S. 755 (1973); Nevett v. Sides, 57I F.2d 209 (5th Cir. L}TA)l

cert. denied, 446 u.s. 951' (1980); and zimmer v. McKeithen, 4gs

F.2d L2g7 (5th cir. Lg73), aff'd on othqr grounds sub nom., East

carroll Parish school Board v. Marsharl, 424 u.s. 036 (1975) (per

curiam). As reflected by the extensive findings of fact heretofore

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made, the Court has endeavored to weigh and consider each of the

factors deened relevant under the Act. In so doing, the Court

concludes, based on the totality of circumstances, that the'

Mexican-Areerican citizens of Corpus Christi have less opportunity

than the A::gIo citizens to participate in the political process

and particuiarly to elect representatives of their choice.

7- Admittedly, the evidence did not reflect the classic

discrimination case where the majority always votes for Anglo

cand,idates while the minority always votes for minority candidates,

thus resulting in a total failure to ever elect a minority candidate.

Instead, the evidence revealed a far more subtle picture. Clearly,
a few minority candidates have been elected over the years. While

the extent to which members of a protected class have been elected

to office is one circumstance which may be. considered und,er the

Act, 42 U.S.C. 51973(b), the success of minority candidates at
the polls dces not necessarily foreclose the possibility of vote

dilution. Zimmer v. McKeithen, 485 E.2d at 1307. Thusr ES

commanded to do so by the Act, the Court has looked at the

"totality" of the circumstances.

8. In so doing, the Court has found that the Mexican-

Americans in Corpus Christ,i constitute a distinct minority group.

For many years, lasting through at least the mid-1950's, they

vrere the victims of pervasive discrimination. Vestiges of that
discrimination still remain so that the average Mexican-American

has attained a significantly lower educational leveI and earns

significantry less income than his Anglo counterpart. Approxi-
mately 65t of the l"lexican-American population of Corpus Christi

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is concentrated in a contiguous area known as the Westside, which

is generally the order and poorer section of the city. There is
a c1ear, etr'en startling, correlation betr,reen voting patterns and,

ethnicity in the various precincts. In recent electoral history,
whenever there has been a clear electoral choice, whether it be

slate versus slate or between credible independent candidates,
the voting in the Westside and, the Southsid.e is highly polarized,
usually a ra,irror opposite. The choice of the westside voters
invariably loses. As late as 1971, heated political campaigns

featured open appears to the voter,s ethnicity. The first
Ivlexican-American erected, to the city councir in this centurT won

his seat in 1955- Since then a totar of only eight other 1vlexican-

American inciividuars have won a city election. only one has
lived in the lrlestside. Arr have won their elections by being
members of a slate basically assembled by Anglo Southside lead.ers.
The only exception is Gabe Lozano, sr., who ran as an independ,ent
in 7975 despite being a successful slate. candidate in I9ZI , Lg-13

and 1977 ' His 1975 opponent was another l{exican-American running:
on a srate. see Finding No. 25. There is evidence that srating
has now lost its political impact which has resurted in the
absence of any Mexlcan-Americans on the present council and makes
the westside voter's opportunity to elect a candidate in the future
even more problematical- The present electoral scheme requires a
candidate to run in a district which encompasses an area of II6.s
square miles. The charter requires a majority vote. Because a
candidate must file for a pIace, the procedure effectivery
prohibits singre-shot voting. The city council has been fairry

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(

responsive to the needs of the t'Iestside community in most basic.

services, although it has been somewhat insensitive to the

Plaintiffs' cultural interests. Employment practices are adequate

at middle and lower levels but still inaCequate at professional

and administrative levels. The present council members themselves

are not unwilling to remedy this situation and, indeed, are trying
to progress- In fact, the present administration has seemingly

recognized that the present electoral system is less than satis-
reated a blue-ribbon committee to propose a remedyfactory ani c ttee to propos

but the connittee could not reach a two-thirds agreement on any

one p1an.

9. The totality of those circumstances convinces the

Court that the Plaintiffs have established their claim under the

Act; therefore, the further use of the at-large system for
election of city council members in the City of Corpus Christi,
Texas shoulC be prohibited.

I0. Defendants shall, within thirty (30) days, submit

to the Court a ProPosed new plan for electing persons to the city
council and simultaneously serve a copy of sane upon Plaintiffs'
counsel. Obviously, it would be in the best interests of all
citizens if the parties can reach an agreement on one pran. rf
not, the Court will review the proposal and issue whatever

further orders are required at that time.

11. There remains pending a motion by Defendant

Herbert Hawkins to realign himself as a'praintiff. The motion

was not filed until after the trial in this case. Hawkins, an

incumbent city councilman, is one rvho will necessarily be involved

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inproposrngaplanonbehalf.oftheDefendants.Nousefu}

purPosewouldbeservedbyconsideringarealignmentatthis

time. The motion is denied as moot'

DoNE,at Laredo, Texas, this 2nd. day of Februaf}r 1983.

,

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