Correspondence from Collins (Judge) to Kellogg; Corrected Excerpts of the Court's Opinion

    United States District Court 

Lastern District of Louisiana 

500 Camp Street 

Net Orleans, Louisiana 70130 

October 11, 1983 
Chambers of 

Robert F. Collins 

District Judar 

R. James Kellogg, Esq. 
Quigley & Scheckman 
631 St. Charles Avenue 
New Orleans, Louisiana 70130 

Re: Major v. Treen, Civil Action No. 82-1192, 

Three Judge Court 
  

Dear Mr. Kellogg: 

Thank you for your October 5, 1983 letter calling to the 
Court's attention several typographical errors in the Court's 
Opinion in the above captioned matter. The Court is in full 
agreement with the corrections that you have indicated. 
Accordingly, the following changes have been made: 

{1) On. page 2831in the text, "... Act 20's Pirst 
District ..." is changed to ".... Act 20's 
Second District ..."; 

On page 32. in footnote 17, "«.. Dr, Pearson +..." 
is changed to ",.. Dr. Henderson :,..": 

On page 39 in: the text, "... black registration 
in voting ..." is changed to "... black 
registration and voting ..."; 

On pages 41, 47, 57, and 74, in footnotes 20, 
24, 28, and 38, respectively, "Hartford, Racial 

Vote Dilution ..., 50 Geo.Wash.L.Rev. 689 

(1982)" is changed to "Hartman, Racial Vote 
Dilution +.., 50 Geo.Wash.L.Rev. 689 (1982)." 

 



R. James Kellogg, Esq. 

October 11, 1983 

Page 2 

The Court also notes that an additional typographical 
error on page 43, in. footnote 22, should be corrected as 

follows: "White v. Register," is changed to "white v. 
Regester." 
  

ROBERT F. COLLINS 

Judge Henry Politz 
Judge Fred Cassibry 
Martin L.C. Feldman 
Kenneth C. DeJean 

Lani Guinier 
Stanley Halpin 
William P. Quigley 

Steven Scheckman 

Loretta G. Whyte 

 



concentrations within most of the nine Orleans Parish wards 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 parish lines and uniting populated segments 

of Orleans and Jefferson parishes with mutually exclusive, often 

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 Second 

District, the interests of the more conservative, suburban white 

populace have effectively eclipsed those of the less 

conservative, urban blacks who make up only 17.9% of the 

district's population. 

Once completed, the new plan was submitted to Governor Treen 

for review. After the Governor accepted the plan on November 11, 

1981, Senators Hudson, Nunez and O'Keefe, and Representatives 

  

ward leaders as major political powers. 

Moreover, the wards’ are real and 
important parts of the «city's life and 
culture. Residents of the City are likely to 
speak of themselves as living in the Twelfth 
Ward, or the Seventh, or the Fourteenth, say 
in contexts quite apart from politics; indeed, 
in the same way that one would say that he 
lived in Marigny or in the Irish Channel or 
the lower Garden District. v 

Id. at 904-05 (footnotes omitted). Evidence adduced at trial 
confirmed Judge Wisdom's assessment of the New Orleans political 
scene. £5  



buttressed by the testimony of trained political 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 1967. He has been elected to positions in all 

three branches of government. Mayor Morial opined that racial 

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

study of the literature relative to 18 elections conducted in 

Orleans Parish from 1960 to 1976, Dr. 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 1977 mayoral contest in which Mayor Morial 

prevailed, Dr. Engstrom opined that the New Orleans metropolitan 

  

2/6/82 Councilman "B" .86 -.45 90 
2/6/82 Councilman "D" .74 -.35 91 

According to Dr. Henderson, the range of a Pearson 
correlation coefficient, also known as a Pearsonian product 
moment correlation coefficient, is from =-1.0 through 0 to +1.0. 
Coefficients of -1.0 and +1.0 indicate a perfect relationship 
between two variables. In other words, a value of ~1.0 or +1l.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 statistically significant. Values of .7 or higher are 
extremely rare, and attest to a strong correlation between two 

variables. A coefficient with a value at or near 0, on the other 
hand, evidences a weak relationship. See generally, D. Baldus 
and J. Cole, Statistical Proof of Discrimination § 5.321 (1980); 
N. Nie, C. Hull, J. Jenkins, K. Steinbrenner and D. Bent, SPSS: 
Statistical Package for Social Sciences at 279-80 (2d. 1975). 

  

The 39 coefficients calculated by Dr. Henderson range from 
+.51 to +.95, indicating that a candidate's race was the single 
variable most predictive of the number of votes received by that 
candidate. '  



Even today, the federal courts are compelled to monitor schools 

around the state for compliance with Brown's teachings. A dual 

university system was operated by the state until 1981, when it 

was dismantled pursuant to a consent decree. Public facilities 

were not open to members of both races until the late 1960s. 

As a consequence of this history, separate white and black 

societies developed in Orleans Parish. Segregation was the norm 

in the private sector, as reflected in the parish's monochromatic 

neighborhoods, churches, businesses and clubs. Discrimination in 

employment was widespread. 

While direct impediments to black registration and voting 

have been eradicated, the residual effects of past discrimination 

still impede blacks from registering, voting or seeking elective 

office in Orleans Parish. No black has been elected to statewide 

office in Louisiana in this century, nor has any served in 

Congress since the days of Reconstruction. Notwithstanding a 

black population of 29.4%, only 7% of Louisiana's elected 

officials are black. Current census figures disclose that blacks 

on the average earn less than whites; 95% of all persons with an 

income of less than $5,000 are black. 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 subtle, employment 

discrimination endures. These factors are the legacy of   

 



dilution heretofore deemed beyond the ambit of § 2, Report on S. 

  

yote on account of race or color, or 
contravention of the guarantees set forth 
§ 4(f) (2) [42 v.s.C. § 1973(£)(2)], 
provided in subsection (b). 

(b) A violation of subsection (a) is 
established if, based on the totality of 
circumstances, it is shown that the political 
processes leading to nomination or election in 
the State or political subdivision are not 
equally open to participation by members of a 
class of citizens protected by subsection (a) 
in that its members have less opportunity than 
other members of the electorate to participate 
in the political process and to elect 
representatives of their choice. The extent 
to which members of a protected class have 
been elected to office in the State or 
political subdivision is one circumstance 
which may be considered: Provided, That 
nothing in this section establishes a right to 
have members of a protected class elected in 
numbers equal to their proportion in the 
population. 

We are persuaded that Congress intended the 1982 amendments 
to take effect immediately, and thus to apply to pending cases. 
See 128 Cong. Rec. H3841 (daily ed. June 23, 1982) (remarks of 
Rep. Sensenbrenner); id. at S7095 (daily ed. June 18, 1982) 
(remarks of Sen. Kennedy, majority floor manager of S. 1992). 
Accord, Hartman, Racial Vote Dilution and Separation of 
Powers: An Exploration of the Conflict Between the Judicial 
"Intent" and the Legislative "Results" Standards, 50 Geo. Wash. 
L.Rev. 689, 725 (1982). Several dilution actions initiated prior 
to June 29, 1982, the effective date of the amendments, have been 
disposed of pursuant to amended § 2. See, ‘e.g., Rybicki v. State 
Board of Elections, Civil No. 81-C-6030 (N.D.I11l. 1983) 
(three-judge court); Thomasville Branch of the N.A.A.C.P. wv. 
Thomas County, Civil No. 75-THOM (M.D.Ga. 1983); Jones v. City of 
Lubbock, Civil No. C.A.-5-76-34 (N.D.Tex. 1983); Taylor v. 

Haywood County, 544 F.Supp. 1122 (W.D.Tenn. 1982) (grant of 
preliminary injunction). In Rybicki, the court found that 
application of § 2 to a districting plan did not present a 
retroactivity issue because its analysis focused on the effects 
of the plan in future elections. 

  

  

  

  
  

  

  

41  



  
County, 688 F.2d 960 (5th Cir. 1982), jurisd. postponed, 

U.S. vy: 103 S.Ct, 1766 (1983). Guided by the axiom that 

cases should be resolved, where possible, on statutory rather 

than constitutional grounds, we shall analyze plaintiffs’ 

dilution claim under the amended § 2.22 

  

22. Dilution jurisprudence has evolved primarily in the context 

of constitutional challenges to state at-large or multimember 

districts. Though the Supreme Court has not directly addressed 

the issue, this circuit has recognized that the standards for 

decision developed in the multimember or at-large districting 

cases govern the adjudication of claims involving the 

constitutionality of single-member districts. Nevett v. Sides, 

571 F.2d 209 (5th Cir. 1978), cert. denied, 446 U.S. 951 (1980); 

Kirksey v. Board of Supervisors, 554 F.2d 139 (5th Cir.), cert. 

denied, 434 U.S. 968 (1977); Robinson v. Commissioners Court, 505 

F.248 674 (5th Cir. 1974). See R. Dixon, Democratic 

Representation: Reapportionment in Law and Politics 484 

(1968). With regard to the applicability of the dilution 

rationale to congressional districting cases, we believe the 

better view is that irrespective of whether a state legislative 

or congressional districting plan is the subject of dispute, "'we 

are required to determine the same question, whether or not there 

has been an unconstitutional manipulation of the electoral 

district boundaries so as to minimize or dilute the voting 

strength of a minority class or interest.'" Nevett v. Sides, 571 

F.2d at 219 (quoting from Robinson v. Commissioners Court, 505 

F.28 at. 678) (emphasis in original). See, e.9., In re: 

Pennsylvania Congressional Districts Reapportionment Cases, Civil 

No. 82-0197, (M.D.Pa. 1982) (three-judge court), aff'd sub nom. 

Simon v. Davis, U.S. LW. {(U.S.S.Ct., July 7, 1983); 

In re: I11inois Congressional Districts Reapportionment Cases, 

No. 81-C-3915, (N.D.I1l. 1981) (three-judge court), aff'd mem. 

sub nom. Ryan v. Otto, 454 U.S. 1130 (1982). 

  

  

  

  

  

  

  

  
  

  

  

  

  

  

  

  

  

  

  

Similarly, the "totality of circumstances" analysis, derived 

from the .multimember dilution cases of White v. Regester, 412 

U.S. 755 1973), and Zimmer v. McKeithen, 485 F.2d 1257 {(5Eh Cir. 

1973) (en banc), aff'd on other grounds sub nom. East Carroll 

Parish School Board v. Marshall, 424 U.S. 636 (1975) (per 

curiam), is equally applicable to state legislative or 

congressional districting schemes. According to the Senate 

(footnote continued) 

  

  

  

43   
 



crucial question of whether minorities have 
equal access to the electoral process to a 
[sic] historical question of individual 
motives. 

S.Rep. No. 97-417 at 16.24 

Regardless of whether former § 2 purported to track the 

Fifteenth Amendment, and thus mandated proof of invidious intent, 

Congress has since elected to broaden the statutory proscription 

to embrace conduct which is discriminatory in either purpose or 

effect. Assuming that amended § 2 constitutes a valid exercise 

  

24. While reaffirming the Bolden purposeful discrimination 
requirement, the Supreme Court has itself alleviated to some 
degree the complainant's burden of proof in Rogers v. Lodge, 

U.S. s 102 8,Ct, 3272 (1982). In Rogers, six Justices 
approved the Fifth Circuit's reliance upon proof of the factors 
set forth in Zimmer v. McKeithen, 485 P.24 1297 {5th Cir. 1973) 
(en banc), aff'd on other grounds sub nom. East Carroll Parish 

School Board v. Marshall, 424 U.S. 636 (1975) (per curiam), to 
draw an inference of discriminatory intent in a vote dilution 
case. By approving judicial resort to the Zimmer criteria, 
heretofore adjudged inadequate in Bolden, to establish intent, 
and evincing greater deference to the factual findings of the 
trial court, the Rogers opinion "signals a significant retreat 
from the Bolden plurality's racial vote dilution analysis and a 
revitalization of the Zimmer factors in the context of an 
[intent] , .\ . Inquiry.” Hartman, Racial Vote Dilution, 50 
Geo.Wash.L.Rev. at 716-17. See Buchanan v. City of Jackson, No. 
81-5333 (6th Cir., filed June 7, 1983) (because Bolden appeared 
to require direct evidence of discriminatory intent, whereas 
Rogers restores the significance of circumstantial evidence in 
ascertaining the existence of such intent, the latter represents 
a marked departure from the plurality's opinion in Bolden); 
McMillan v. Esczmbia County; Cardwell, Voter Dilution and the 
Standard of Proog, 14 Urban Law 863 (1982). Dissenting Justices 
Powell and Rehnquist maintain that the holdings in Bolden and 
Rogers cannot be reconciled, suggesting that the Bolden rationale 
has in effect been repudiated by the majority. Rogers v. Lodge, 
102 S.Ct. at 3281 (Rehnquist and Powell, JJ., dissenting). 

  

  

  

  

  

    

  

47  



Association opined before the Senate Judiciary Committee, 

Under this Amendment, the Supreme Court's 

interpretation of the proper constitutional 

standard’ . . . [lis] left intact, Only the 

section 2 statutory standard [is] 

changed, .. . . 

Hearings on the Voting Rights Act Extension Before the 

Subcommittee on the Constitution of the Senate Judiciary 

Committee, 97th Cong., 2d Sess. (Feb. 25, 1982) (prepared 

statement of David R. Brink at 7). 

Senate critics of § 2, led by Senator Orrin Hatch, raised 

the specter of overbreadth, arguing that the exceptional 

conditions justifying unequal application of § 5 to jurisdictions 

with a history of intentional discrimination did not support the 

extension of a nationwide ban encompassing noncovered 

jurisdictions. Subcommittee on the Constitution of the Senate 

Committee on the Judiciary, 97th Cong., 2d Sess., Voting Rights 

Act, Report on S. 1992, reprinted in S.Rep. No. 97-417 at 

170-71. Absent a record suggesting that voting discrimination 

permeates the entire nation, the Senate Subcommittee on the 

Constitution maintained that the sweeping reforms contemplated by 

§ 2 could not be described as remedial in character, and were 

consequently beyond the scope of congressional enforcement 

powers. Id. at 171. Accord, Note, Amending Section 2 of the 

  

Hartman, Racial Vote Dilution, 50 Geo.Wash.L.Rev, at 748 

(footnotes omitted).  



in the present case, the division of the black population was not 

designed to. enhance the effectiveness of the black electorate, 

nor is it likely to occasion such. 

Application of amended § 2's "results" test to the aggregate 

of the facts adduced at trial, including Louisiana's history of 

discrimination and the impact of that history on the present 

ability of blacks in Orleans Parish to join in the political 

process, the vestiges of discrimination which take the form of a 

marked disparity in the socio-economic conditions under which 

blacks and whites currently subsist, the parish's racially 

polarized voting, as exacerbated by the state's majority vote 

requirement, the tenuousness of the state policy underlying Act 

20 and the history of its enactment, and the manipulation of 

district boundary lines so as to fracture a cohesive minority 

  

minority districts with at least 40% population expressed, court 
found no constitutional or federal statutory bar thereto) with 
Kirksey v. Board of Supervisors, 554 F.2d at 150 (emphasis in the 
original) ("Where the cohesive black voting strength is 
fragmented among districts, [even] the presence of districts with 
bare black population majorities not only does not necessarily 
preclude dilution but . . . may actually enhance the possibility 
of continued minority political impotence."); Hartman, Racial 
Vote Dilution and Separation of Powers, 50 Geo.Wash.L.Rev. at 695 
{". . + the argument that the. position Of the minority is 
necessarily enhanced by an opportunity for "coalition building" 
[through a districting plan that disperses their votes among 
several districts] is disingenuous, to say the least, when made 
in reference to a locale with well-established patterns of racial 
division and racial bloc voting where the minority has 
systematically been . submerged and ignored."); Note, 
Constitutional Challenges to Gerrymanders, 45 U.Chi.L.Rev. 845, 
846 (1978) (splitting a voting group among several districts may 
have the effect of diluting the political power of that group). 

  

  

74