United States v. Hays Brief Amicus Curiae in Support of Appellants

    No. 94-558 
No. 94-627

In T he

S u p re m e  C o u r t o f tfje © niteb States?
October Term 1994

United States,

V.

Ray Hays, et a l ,

Appellant,

Appellees.

State of Louisiana, et a l ,
Appellants,

V,

Ray Hays, et a l ,
Appellees.

On Appeal From the United States District Court 
For The Western D istrict of Louisiana

BRIEF OF THE CONGRESSIONAL BLACK CAUCUS 
AS AMICUS CURIAE IN SUPPORT OF APPELLANTS

Of Counsel:
Pamela S. Karlan 
1525 Massachusetts Avenue 
Cambridge, MA 02138 
(617) 495-4614

A. Leon Higginbotham, Jr . 
(Counsel of Record)
Gregory A. Clarick 
Marcella David 
1285 Avenue of the Americas 
New York, NY 10019 
(212) 373-3000



TABLE OF CONTENTS

Page

INTERESTS OF AMICUS CURIAE...................................  1

ARGUM ENT...........................................................................  1

I. SUMMARY OF ARGUMENT................................  1

II. MINORITY-MAJORITY DISTRICTS ARE A
CRITICAL TOOL FOR ACfflEVING AN 
INTEGRATED POLITICAL SYSTEM ................  3

A. The Central Purpose of Single 
Member Congressional Districts 
is to Achieve Representation of 
Minority G roups...........................................  5

B. Groups Defined by Reference to 
Religious, Racial, Ethnic, and 
Socioeconomic Status Form the 
Building Blocks of Our Pluralist 
Democracy...................................

Given Present-Day Political 
Realities, Genuine Integration 
Requires the Use of Minority- 
Majority Districts ................ .. 15

III. MINORITY-MAJORITY DISTRICTS LIKE 
LOUISIANA’S DISTRICT FOUR NEITHER 
SEGREGATE VOTERS NOR IMPAIR FULL 
REPRESENTATION OF ALL 
CONSTITUENTS’ INTERESTS............. 19



Page

A. Contrary to the Suggestion of 
Segr^ation, the Challenged 
Congressional Districts Are 
Among the Most Racially 
Int^rated Districts in the 
N ation ........................................ 20

B. The Representatives Elected From 
the Challenged Districts Faithfully 
Represent the Interests of All 
Their Constituents................  . . . . 22

C. Minority-Majority Districts
Do Not Increase Racial Polarization

CONCLUSION 

Appendix A . .

24

24

27



TABLE OF AUTHORITIES 

CASES

Page(s)

Ballard United States, 329 U.S. 187
(1946) ...................................................................................  12

Bolling V. Sharpe, 347 U.S. 497 (1 9 5 4 ).......................................7

Brown v. Board ofEduc., 347 U.S. 483
(1954)   7

Buchanan v. Warley, 245 U.S. 60 (1 9 1 7 ).................................... 7

Citizens fo r  a Better Gretna v. City o f 
Gretna, 636 F. Supp. 1113 (E.D.
La. 1986), aff’d, 834 F.2d 496 (5th 
Cir. 1987), cert, denied, 492 U.S.
905 (1989 )...........................................................................  14

Civil Rights Cases, 109 U.S. 3 (1 8 8 3 ) ......................................  8

Camming v. Board ofEduc., 175 U.S. 528
(1899) ..............................................................    7

Davis V. Bandemer, 478 U.S. 109 (1 9 8 6 )...........................  2, 6

Bred Scott v. Sandford, 60 U.S. 393
(1857)   7

Gaines v. Canada, 305 U.S. 337 (1938)...................................  7

Giles V. Harris, 189 U.S. 475 (1903)..........................................  8

111



Page(s)

Haitian Refugee Center, Inc. v. Baker,
112 S. Ct. 1245 (1 9 9 2 )......................................................  H

Hobbs V. Fogg, 6 Watts 553 (Pa. 1 8 3 7 ) ....................................8

J.E.B. V. Alabama, 114 S. Ct. 1419
(1994) .................................................................................  12

Jeffers v. Clinton, 730 F. Supp. 196 
(E.D. Ark. 1989), aff’d, 498 U.S.
1019 (1 9 9 1 )......................................................................... 23

Johnson v. De Grandy, 114 S. Ct. 2647
(1994) .................................................................................  15

Loving V. Virginia, 388 U.S. 1 (1 9 6 7 ) ......................................  7

Major V. Treen, 574 F. Supp. 325 (E.D.
La. 1983) .....................................    14

Mitchell V. ICC, 313 U.S. 80 (1 9 4 1 )......................................... 8

Peters v. Kiff, 407 U.S. 493 (1972)................................ H

Planned Parenthood o f Southeastern Pa.
V. Casey, 112 S. Ct. 2791 (1992)..................... ................... 3

Plessy V. Ferguson, 163 U.S. 537 (1896) ......................................8

Powers V. Ohio, 499 U.S. 400 (1991) .................................... 13

Shaw V. Hunt, 861 F. Supp. 408
(E.D.N.C. 1994).................................................................  22

iv



Page(s)

Shaww. Reno, 113 S. Ct. 2816
(1993) ................................... ....................  2, 3, 8, 9, 15,

19, 22

Shelley v. Kraemer, 334 U.S. 1
(1948) .................................................................................... 7

South Carolina v. Katzenbach, 383 U.S.
301 (1966 )..............................................................................  8

Steele v. Louisville & Nashville R.R.
Co., 323 U.S. 192 (1944) ..................................................... 7

Taylor V. Louisiana, 419 U.S. 522
(1975) ...................................    12

Thornburg v. Gingles, 478 U.S. 30
(1986) ............................................................................ 14, 15

Tunstall v. Brotherhood o f Locomotive 
Firemen & Enginemen, 323 U.S. 210 
(1944) ....................................................................................  7

United States v. Louisiana, 225 F.
Supp. 353 (E.D. La. 1963), aff’d,
380 U.S. 145 (1965)...........................................................  17

Wright V. Rockefeller, 376 U.S. 52
(1964) .................................................................................  16



Page(s)

STATUTES

Civil Rights Act of 1964,
Pub. L. No. 88-352, 78 Stat. 241 
(codified as amended in scattered 
sections of 42 U.S.C. (1988)) . .

Civil Rights Act of 1991,
Pub. L. No. 102-166, 105 Stat. 1071 
(to be codified in scattered sections of 
42 U .S .C .)................ ........................... . 9

Comprehensive Anti-Apartheid Act of 1986, 
Pub. L. No. 99-440, 100 Stat. 1086 
(codified at 22 U.S.C. § 5001 et seq. 
(1988) (repealed in part 1993)) ..............

Equal Employment Opportunity Act of 
1972, Pub. L. No. 92-261, 86 Stat. 
103 (codified in scattered sections of 
42 U.S.C. § 2000e (1988))..............

Fair Housing Act of 1968, Pub. L. No. 
90-284, 82 Stat. 81 (codified as 
amended at 42 U.S.C. § 3601 et seq. 
(1988)) ..............................................

Fair Housing Amendments Act of 1988, 
Pub. L. No. 100-430, 102 Stat. 1619 
(to be codified at 42 U.S.C. § 3601
et s e q . ) ................ .............................  .

VI



H.R. 909, 27th Cong. (1842)................................

Page(s)

................... 6

Voting Rights Act Amendments of 1982,
Pub. L. No. 97-205, 96 Stat. 131 
(codified at 42 U.S.C. § 1973 et seq.
(1988)) .............................................................. ................... 9

Voting Rights Act of 1965, Pub. L.
No. 89-110, 79 Stat. 437 (codified as 
amended at 42 U.S.C. § 1973 et seq.
(1988)) .............................................................. .............. 2 ,9

MISCELLANEOUS

Roger D. Abrahams,
Singing the Master. The Emergence of
African American Culture in the
Plantation South (1992) ........................................ ................  10

Talmadge Anderson,
Introduction to African American
Studies (1993) ........................................................ ................... 9

David Bositis, Redistricting and
Representation: The Creation o f
Majority-Minority Districts in the
South, The Evolving Party System
and Some Observations on the New
Political Order (The Joint
Center for Political and Economic
Studies 1994)........................................................................20, 23

VII



Page(s)

William L. Clay, Just Permanent 
Interests: Black Americans in
Congress: 1870-1991 (1992)......................................................  4

Norman Dorsen et al., 2 Political 
and Civil Rights in the United States
(4th ed. 1979) (1994).................................................................... 4

R. Engstrom ef a /., “Louisiana,” 
in Quiet Revolution in the South,
(C. Davidson & B. Grofman eds. 1 9 9 4 )................................. 17

John Hope Franklin, From Slavery
to Freedom (7th ed. 1994) ................................ .. ................  7, 8

Lisa Handley & Bernard Grofman,
“The Impact of the Voting Rights Act 
on Minority Representation: Black 
Officeholding in Southern State 
Legislatures and Congressional 
Delegations” in Quiet Revolution in the 
South: The Impact o f the Voting Rights 
Act, 1965-1990 (C. Davidson 
& B. Grofman eds. 1994) ...................... 16, 17

A. Leon Higginbotham, Jr.,
F.M. Higginbotham and S.S. Ngcobo, 
De Jure Housing Segregation 
in the United States and 
South Africa: The Difficult 
Pursuit for Racial Justice,
4 Univ. 111. L. Rev. 763 (1990) . . . .

VllI



Page(s)

A. Leon Higginbotham, Jr.,
In the Matter o f Color: Race and the 
American Legal Process (1978) . . .

A. Leon Higginbotham, Jr.,
G. Clarick & M. David, Shaw v.
Reno: A Mirage o f Good Intentions 
with Devastating Racial Consequences,
62 Fordham L. Rev. 1593 (1 9 9 4 ) ......................................  3, 21

George T. Kurian,
Datapedia o f the United States:
1790-2000 ....................................................................................  4

Gunnar Myrdal,
An American Dilemma (1944) .................................................... 7

27 Eighteenth-Century Studies
No. 4, Special Issue: African-American
Culture in the Eighteenth Century
(1 9 9 4 )............................................................................................  9

IX



INTERESTS OF AMICUS CURIAE

The Congressional Black Caucus (the “Caucus”) is com­
posed of all forty African Americans who have been elected to the 
House of Representatives and, in addition, Carol Mosely Braun of 
Illinois, a member of the United States Senate. The issue as to how 
congressional boundaries are drawn in Louisiana and throughout the 
nation could affect directly twenty or more members of the present 
Caucus and millions of African Americans and other minorities 
who reside in the minority-majority districts where the issue has 
been or may be raised. The Caucus filed an amicus brief in the 
proceedings below.

ARGUMENT

I.

SUMMARY OF ARGUMENT

The Caucus believes that the minority-majority districts in 
issue in this and related cases are indispensable in the fight for full 
integration of the American political landscape. Minority-majority 
districting is only a specific illustration of the more general goal of 
all districting, particularly single-member districting; it is intended 
to allow the direct representation of numerical minorities whose 
votes otherwise would be submerged by those of the majority. In 
the context of American history and contemporary reality, 
minority-majority districts are often the only way of fiilly achieving 
the pluralist aspirations of American politics and remedying the 
longstanding exclusion of African Americans from full participation 
in government. Moreover, the use of minority-majority districts, 
like Louisiana’s District Four and the other minority-majority 
districts represented by members of the Caucus, shows that these 
districts have not resulted in the harms this Court feared from 
race-conscious districting; the challenged districts do not segregate 
voters on the basis of race, and representatives from minority- 
majority districts fairly represent the interests of all their con­
stituents—regardless of race.



This Court’s decision in Shaw v. Reno, 113 S. Ct. 2816 
(1993), nevertheless has unleashed a torrent of litigation challenging 
minority-majority congressional districts drawn after the 1990 
census. In three cases, lower federal courts have used Shaw as a 
roving warrant to flout Congress’s commitment to full integration 
of the political system. In so doing, these lower courts have 
disregarded this Court’s reluctance to interfere in the intensely 
political process of districting, which inevitably involves “com­
peting claims of political, religious, ethnic, racial, occupational and 
socioeconomic groups.” Davis v. Bandemer, 478 U.S. 109, 147 
(1986) (O’Connor, J., concurring in the judgment).

Shaw reflects this Court’s hopes and its fears about the 
American political system. Shaw confirms this Nation’s deep 
commitment to integration of the political system. The Fourteenth 
and Fifteenth Amendments to the Constitution expressly pledge to 
eradicate the political exclusion of racial minorities, particularly 
African Americans. See Shaw, 113 S. Ct. at 2822-31. This 
constitutional command underlies the Voting Rights Act of 1965, 
which gives all Americans an “equal opportunity to participate in 
the political process and to elect representatives of their choice.” 42 
U.S.C. § 1973(b) (1988). Moreover, as Shaw recognizes, the 
political system should ensure that elected officials are responsive 
to the ne»ds of all of their constituents; no official should ignore 
the distinctive needs of the citizens he or she represents because of 
their race. See Shaw, 113 S. Ct. at 2827. Finally, Shaw expresses 
an aspiration for American politics to become less race-conscious 
and polarized. See id. at 2827, 2832.

At the same time, Shaw sets forth several reservations about 
the deliberate creation of irregularly-shaped, minority-majority 
districts. Shaw foresees two potential dangers in such districts. 
First, “ [wjhen a district obviously is created solely to effectuate the 
perceived common interests of one racial group, elected officials 
are more likely to believe that their primary obligation is to 
represent only the members of that group rather than their constitu­
ency as a whole.” Id. at 2827. Second, to the extent that such 
districts reinforce stereotypes about racial distinctions, they may



“exacerbate...patterns of racial bloc voting,” id., and further 
polarize American politics.

It is the position of the Caucus that the opinion and order 
of the Hays trial court is inconsistent with this Court’s opinion in 
Shaw. The lower court failed to recognize that the challenged 
minority-majority district meets the aspirations for the American 
political system identified in Shaw. Further, the court below failed 
to assess the fears noted in Shaw. Such inquiry would have 
revealed that Louisiana’s District Four does not present either 
danger. The lower court decision should be reversed. If, however, 
the Court concludes that the decision below is consistent with or 
required by Shaw, we submit that the Shaw decision was “wrongly 
decided,” and should be revised.-

II.

MINORITY-MAJORITY DISTRICTS 
ARE A CRITICAL TOOL FOR 

ACHIEVING AN INTEGRATED POLITICAL SYSTEM

For far too long, this nation was unresponsive and often 
hostile to the needs of its Afirican-American citizens. Prior to 
Reconstruction, and the passage of the Fourteenth and Fifteenth 
Amendments to the Constitution, no African American served in 
Congress. By 1901 (the end of the First Reconstruction), the 
massive disfranchisement of African-American voters through 
fraud, intimidation, and a variety of invidiously discriminatory 
devices (such as poll taxes and literacy tests) had entirely purged 
Congress of African-American members. From 1901 to 1928, there

- In Fullilove v. Klutznick, 448 U.S. 448, 522 (1980), Justice Rehnquist 
joined Justice Stewart’s view that ‘̂ Plessy v. Ferguson was wrong when 
decided.” This view has been endorsed by two members of the Shaw 
majority. See Planned Parenthood v. Casey, 112 S. Ct. 2791, 2813 
(1993) (“fWje think Plessy was wrong the day it was decided.") For an 
argument that Shaw was wrongly decided, see A. Leon Higginbotham, 
Jr., G. Clarick & M. David, Shaw v. Reno: A Mirage o f Good Intentions 
with Devastating Racial Consequences, 62 FoTdh&mL. Rev. 1593(1994).



were no African Americans in Congress; from 1929 to 1944 there 
was but one. And the voice of Congress’s sole African-American 
representative from 1935 to 1943, Arthur Mitchell of Illinois, was 
all but silenced by the antagonistic posturing of his white 
colleagues—some of whom were members of his own party.-

The consequences of the exclusion of African Americans 
from voting and thus from Congress were painfully visible, even 
after World War II, as Congress consistently worked to advance the 
interests of the white majority at the expense of minority groups. 
Thus, for example, in 1957 southern congressmen almost uniformly 
Joined the “Southern Manifesto,” rejecting the doctrine of Brown 
V. Board o f Education and adhering solely to the interests of those 
white constituents who wanted to maintain segregation in 
America—to the detriment of a significant African-American 
southern population .-

Louisiana’s District Four and other challenged minority- 
majority districts have served to move America beyond this 
deplorable history and toward the ideal of a representative demo­
cracy, one that encourages the inclusion of all Americans in 
political discourse. Progress has been slow in coming. Indeed, only

- During the Democratic Party convention of 1936: “Congressman 
Mitchell’s presence on the podium...was used as an excuse for a U.S. 
senator from South Carolina and eight other delegates to stage a walkout 
in protest. But even that demonstration was mild compared to what had 
happened in previous conventions....” William L. Clay, Just Permanent 
Interests: Black Americans in Congress: 1870-1991 72 (1992).

For a list of African Americans who have served in Congress, see 
Appendix A hereto.

- Nineteen senators and 83 representatives from the South, with 
approximately 9 million African-American constituents. Joined the 
Manifesto. See Norman Dorsen et al., 2 Political and Civil Rights in the 
United States 625 n.2 (4th ed. 1979) (for history of manifesto); George T. 
Kurian, Datapedia o f the United States: 1790-2000 18-26 (1994) (for 
southern population).



after the 1992 congressional elections did the number of African- 
American members of Congress rise from 26 to 40. Absent the 
minority-majority districts that facilitated this change, however, 
America cannot realistically hope soon to achieve a racially 
integrated legislature that adequately allows for the expression of 
the experiences and views of all Americans. Decisions such as the 
district court’s opinion in this case ignore the crucial importance of 
achieving a racially integrated legislature in a multiracial nation.

A. The Central Purpose of Single Member 
Congressional Districts is to Achieve 
Representation of Minority Groups

Nothing in the Constitution requires congressional represen­
tatives to be elected from single-member districts. Nevertheless, 
single-member districting, which has been required by federal 
statute since 1842, serves a critical function: the direct representa­
tion in Congress of communities with distinct political interests that 
otherwise would be unrepresented were elections conducted on an 
at-large basis. Single-member districts promote a diversity of 
experience, insight and outlook in Congress that both results in 
better and more representative lawmaking and promotes citizen 
confidence in the legitimacy of the legislative process.

Single-member congressional districts were first mandated 
by the Reapportionment Act of 1842. This Act advanced James 
Madison’s notion that single-member districts would best allow for 
the representation of local communities. As Madison explained in 
Federalist Paper 56:

Divide the largest state into ten or twelve districts 
and it will be found that there will be no peculiar 
local interest...which will not be within the knowl­
edge of the Representative of that district.

Indeed, the committee forwarding the 1842 Act explicitly intended 
the single-member districts to enable minorities to have representa­
tion in the face of differing majorities. That committee explained:



[At-large elections] stifl[e] the voice and smother[] 
the opinions of minorities...thus disfranchised by 
the overbearing insolence of a majority, always 
meager, and as it grows leaner growing more 
inexorable and oppressive.

H.R. Rep. 909, 27th Cong., 2d Sess. at 8 (1842).

Thus the overriding purpose of single-district voting is to 
enhance pluralism in Congress by promoting the grouping and 
political participation of various conununities in American 
democratic life. Louisiana’s District Four and other challenged 
minority-majority districts advance this purpose, by including the 
views and protecting the interests of a distinct minority group, 
African Americans. Only a pluralistic Congress—one that includes 
the presence of legislators of various backgrounds—can fairly 
ensure that all appropriate interests are considered, as the 
government forges policies that dramatically affect the lives of all 
American citizens, including those who are members of minority 
groups.

B. Groups DeHned by Reference to Religious,
Racial, Ethnic, and Socioeconomic Status 
Form the Building Blocks of Our Pluralist 
Democracy

As Justice O’Connor recognized in her concurring opinion 
in Davis v. Bandemer, 478 U.S. 109, 147 (1986), the reapportion­
ment process has traditionally involved political accommodation of 
the “competing claims of political, religious, ethnic, racial, 
occupational and socioeconomic groups.” In the context of 
America’s unique history, it is essential that this Court recognize 
that African Americans often form a community with distinct 
political interests.

One key source of African Americans’ commonality of 
interests is, of course, this Nation’s lamentable history of overt



racial discrimination.-' African Americans were enslaved,- and later 
denied the rights to purchase property or live in certain areas,-' 
learn,2' work,-' travel with dignity,-' m a r r y , a n d  vote,-^'

-' See generally John Hope Franklin, From Slavery to Freedom (7th ed. 
1994); Gunnar Myrdal, An American Dilemma (1944).

See Dred Scott v. Sandford, 60 U.S. 393, 407 (1857) (“[A]t the time 
of the Declaration of Independence, and when the Constitution of the 
United States was framed and adopted ... [African Americans] had no 
rights which the white man was bound to respect.”); see also A. Leon 
Higginbotham, Jr., In the Matter o f Color: Race and the American Legal 
Process 6 (1978).

-' See Buchanan v. Warley, 245 U.S. 60, 79 (1917) (municipal racial 
segregation law); Shelley v. Kraemer, 334 U.S. 1, 20 (1948) (racially 
restrictive covenant); see also, John Hope Franklin, supra note 4, at 311; 
A. Leon Higginbotham, Jr., De Jure Housing Segregation in the United 
States and South Africa: The Difficult Pursuit fo r  Racial Justice, 4 Univ. 
111. L. Rev. 763 (1990).

- See Gumming v. Board ofEduc., 175 U.S. 528, 545 (1899) (Board of 
Education suspended “temporarily and for economic reasons the high 
school for colored children”); Gaines v. Canada, 305 U.S. 337, 352 
(1938) (black citizens of Missouri denied the right to attend the only state 
supported law school); Brown v. Board ofEduc., 347 U.S. 483 (1954) 
(racial segregation in public schools); Bolling v. Sharpe, 347 U.S. 497 
(1954) (racial segregation in District of Columbia public schools).

- See Steele v. Louisville <fe Nashville R.R. Co., 323 U.S. 192 (1944)
(blacks denied membership in labor union on account of race); Tunstall v. 
Brotherhood o f  Locomotive Firemen Enginemen, 323 U.S. 210 (1944)
(racially discriminatory bargaining agreement); see also John Hope 
Franklin, supra note 4, at 235.

-' Even the one African-American in Congress in the 1930s was denied 
the right to travel with dignity. As Congressman Arthur Mitchell testified, 
after he identified himself as a U.S. Congressman to a train conductor in 
Arkansas, the conductor said “it didn’t make a damn bit of difference who 
I was, that as long as I was a nigger I couldn’t ride in [the first class]

(continued...)



simply because of the 
2827.

‘color of their skin.” Shaw, 113 S. Ct. at

Nor is this legacy ancient history. The continuing effects of 
this state-sponsored history of slavery, de jure segregation, 
brutality, and exclusion from voting persist. Many middle-aged 
African Americans attended inferior, racially segregated schools 
and their substandard educations continue to hamper their ability to 
compete in the workforce, to afford adequate housing, and to 
participate effectively in the political process.- Even today, white 
attitudes hardened by state-sponsored de Jure segregation often 
result in racially polarized voting and contribute to discrimination 
in employment, housing, public accommodations, and a variety of 
other circumstances.

Federal legislation has been an essential weapon in the fight 
to remedy the effects of this past and continuing racial discri­
mination, and Congress’s use of its Fourteenth and Fifteenth 
Amendments and Commerce Clause powers to fight for racial

-(...continued)
car.” Record of the United States Supreme Court, Mitchell v. ICC, 313 
U.S. 80 (1941) (No. 577), at 79, and Mitchell ICC, 313 U.S. 80, 
(1941) (denial of “separate but equal” first-class railroad accommodation 
to African Americans); see also Plessy v. Ferguson, 163 U.S. 537, 540 
(1896) (Louisiana’s racial segregation of railroad passengers); The Civil 
Rights Cases, 109 U.S. 3 (1883) (denial of "separate but equal" first-class 
railroad accomodation to African Americans).

— See Loving v. Virginia, 
anti-miscegenation statute).

388 U.S. 1 (1967) (Virginia’s

— See Hobbs v. Fogg, 6 Watts 553 (Pa. 1837) (African Americans in 
Permsylvania denied the right to vote on account of race); Giles v. Harris, 
189 U.S. 475 (1903) (Alabama Constitution denied African Americans the 
right to vote on account of race); see also South Carolina v. Katzenbach, 
383 U.S. 301 (1966) (setting out history of racial discrimination in 
voting).

— See John Hope Franklin, supra note 4, at 405-32.



justice has been a significant element of the legislative agenda of 
the past three decades.— Of course, Americans of all races have 
supported these remedial measures. Nevertheless, African- 
American constituents, witnesses, and representatives have been in 
the forefront of these legislative efforts.

Even beyond explicitly race-conscious legislative measures, 
African Americans often form discrete communities of interest. 
Recognition of this thread of shared interests does not involve the 
type of pernicious stereotyping referr^  to by this Court in Shaw. 
See 113 S. Ct. at 2827. African Americans, enslaved and segre­
gated because of their race, were excluded from the dominant 
American culture and forced to develop distinct cultural traditions, 
woven together from the strands of the disparate African traditions 
of their homelands. The result is indubitably, uniquely, and recog­
nizably African American. It includes the literature of Richard 
Wright, Ralph Ellison and Toni Morrison, the poetry of Phyllis 
Wheatley and Langston Hughes and art forms such as blues, gospel 
and Jazz.- African-American culture is also uniquely expressed

See, e.g., Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 
(codified as amended in scattered sections of 42 U.S.C. (1988)); Voting 
Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 (codified as 
amended at 42 U.S.C. § 1973 et seq. (1988)); Fair Housing Act of 1968, 
Pub. L. No. 90-284, 82 Stat. 81 (codified as amended at 42 U.S.C. 
§ 3601 et seq. (1988)); Equal Employment Opportunity Act of 1972, Pub. 
L. No. 92-261, 86 Stat. 103 (codified in scattered sections of 42 U.S.C. 
§ 2000e (1988)); Voting Rights Act Amendments of 1982, Phib. L. No. 
97-205, 96 Stat. 131 (codified at 42 U.S.C. § 1973 et seq. (1988)); 
Comprehensive Anti-Apartheid Act of 1986, Pub. L. No. 99-440, 100 
Stat. 1086 (codified at 22 U.S.C. § 5001 et seq. (1988) (repealed in part 
1993)); Fair Housing Amendments Act of 1988, Pub. L. No. 100-430, 
102 Stat. 1619 (to be codified at 42 U.S.C. § 3601 et seq.); Civil Rights 
Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (to be codified in 
scattered sections of 42 U.S.C.).

— See generally 27 Eighteenth-Century Studies No. 4, Special Issue: 
African-American Culture in the Eighteenth Century (1994); Talmadge 
Anderson, Introduction to African American Studies 251-82 (1993);

(continued...)



in painting, sculpture, film and dance. Similar to other ethnic, 
religious, and occupationally-defined groups, African Americans, 
who share a common cultural heritage, often share a common 
perspective on many issues the government faces—ranging from 
political solidarity with the people of certain foreign countries to 
support for particular foreign and domestic, economic and cultural 
policies.

There are numerous examples of how commonality of 
culture influences American politics. Over the years, Irish- 
American members of Congress and representatives from constitu­
encies with significant Irish-American populations have developed 
particular interest and expertise in issues connected with Northern 
Ireland.— Similarly, Jewish-American legislators and
representatives with large numbers of Jewish-American constituents 
have been especially active in issues involving the Middle East.-

Like these other minority groups, in recent years, members 
of the Caucus have labored to advance interests of particular 
concern to African Americans. Caucus members thus have taken a 
leading role in debating American policy with regard to South 
Africa and Haiti. For example, the Caucus successfully pressed for

— (...continued)
Roger D. Abrahams, Singing the Master: The Emergence o f African 
American Culture in the Plantation South (1992).

— For example, Sen. Edward Kennedy, of Massachusetts, has often 
spoken out regarding affairs in Northern Ireland. See, e.g., Dublin 
Journal: A Kennedy Pleases the Irish, Piques Some Envoys, N. Y. Times, 
July 29, 1994, A4; Political Leader ofI.R.A. Begins a Tour o f the U.S. 
in Boston, N.Y. Times, Sept. 25, 1994, at 13; Bay State Delegation 
Arrives in Ireland to Meet Leaders, The Boston Herald, Dec. 11, 1994, 
at 2.

— For example. Rep. Charles Schumer, of New York, has regularly 
promoted favorable relations with Israel. See, e.g., Baxter International 
Settles Boycott Case—Firm Fined $6 Million fo r  Aiding Arab League, 
Wash. Post, Mar. 26, 1993, at D l.

10



a more equitable application of American foreign policy to the 
Haitian refugee crisis, by bringing to the fore the disparity between 
the Clinton Administration’s policy with respect to the treatment of 
Cuban and Haitian immigrants. TTie Caucus’s role in such affairs 
is appropriate and critical.—

Similarly, on the domestic front, the Congressional Black 
Caucus worked to raise concerns about the fairness of the recent 
crime bill. Ultimately, most African-American representatives 
voted in favor of the bill, even though a Caucus-sponsored 
amendment concerning racism in death penalty sentencing was 
defeated.-

But the importance of having a racially integrated Congress 
in a multi-racial society goes far beyond African-American 
representatives’ decisive role in a few identifiable debates of 
particular importance to the African-American community. As this 
Court has repeatedly emphasized in cases involving juries, the very 
notion of “representativeness” requires that no significant group be

— Cf. Haitian Refugee Center, Inc. v. Baker, 112 S. Ct. 1245, 1246 
(1992) (Thomas, J., concurring in denial of certiorari) (the matter of 
Haitian refugees “must be addressed by the political branches”).

A similar dynamic is evident with regard to female representatives. Last 
year’s debate over whether the naval commander in charge during the 
infamous “Tailhook Scandal” should be retired at full rank provides an 
example of the significance of even a small coalition of women: it 
transformed what otherwise would have been a pro forma exchange into 
a national debate on gender relations. See Maureen Dowd, Senate 
Approves a 4-Star Rank fo r  Admiral in Tailhook Affair: 54-43 Vote 
Followed Heated Debate on Floor, N.Y. Times, Apr. 20, 1994, at A l, 
BIO. The further representation of women’s interests—by women—in the 
Senate would no doubt have further altered the tenor and perhaps the 
outcome of that debate.

— See The Crime Bill: The Roll Call o f the House on the Crime Measure, 
N.Y. Times, Aug. 22, 1994, at B6; K. Seelye, Provision on Racial Bias 
in Death Sentence Appears Unlikely fo r  Crime Bill, N.Y. Times, July 14, 
1994, at D3.

11



excluded from the deliberative process. As Justice Marshal! 
explained in Peters v. Kiff, 407 U.S. 493, 503 (1972);

We are unwilling to make the assumption that the 
exclusion of Negroes has relevance only for issues 
involving race. When any large and identifiable 
segment of the conununity is excluded...the elfect 
is to remove from the...room qualities of human 
nature and varieties of human experience, the range 
of which is unknown and perhaps unknowable. It 
is not necessary to assume that the excluded group 
will consistently vote as a class in order to con­
clude, as we do, that its exclusion deprives the jury 
[or Congress] of a perspective on human events 
that may have unsuspected importance in any case 
that may be presented.-

Indeed, in J.E.B. v. Alabama, 114 S. Ct. 1419, 1431 (1994) 
(O’Connor, J., concurring) (emphasis added). Justice O’Connor

— This Court’s frequently cited discussion in Ballard v. United States, 
329 U.S. 187, 193-94 (1946), with respect to juries and gender equally 
pertains to legislatures and race;

[I]t is not enough to say that women when sitting as 
jurors neither act nor tend to act as a class. Men 
likewise do not act as a class. But, if the shoe were on 
the other foot, who would claim that a jury was truly 
representative of the community if ail men were 
intentionally and systematically excluded from the panel?
The truth is that the two sexes are not fungible; a 
community made up exclusively of one is different from 
a community composed of both; the subtle interplay of 
influence one on the other is among the imponderables.
To insulate the courtroom from either may not in a 
given case make an iota of difference. Yet a flavor, a 
distinct quality is lost if either sex is excluded.

See also Taylor v. Louisiana, 419 U.S. 522, 531-32 (1975) (quoting 
Ballard).

12



recognized that in the context of jury deliberations, “[w]e know that 
like race, gender matters...[jjurors are not expected to come into 
the Jury box and leave behind all that their human experience has 
taught them.” Thus, African-American representatives perform an 
essentia] function in the deliberative processes connected with the 
proposal, assessment and enactment of legislation of all kinds.

Moreover, as the jury cases make clear, an African- 
American presence may also be essential to public perceptions of 
congressional legitimacy. See 114 S. Ct. at 1429; Powers
V. Ohio, 499 U.S. 400, 407 (1991) (jury service “ensures 
continued acceptance of the laws by all of the people”). Again, a 
foreign policy issue illustrates the point. During the 1991 Gulf 
War, Congress was faced with the decision whether to commit 
American forces—forces that are disproportionately black and 
poor—to combat. The congressional debate regarding the 
deployment of troops to Iraq was criticized as potentially 
illegitimate and unfair precisely because the composition of 
Congress did not accurately reflect the composition of the 
community from which the soldiers sent into combat would 
come.— Increasing the number of African-American legislators 
in Congress is essential to the perceived legitimacy of the decisions 
that that body makes, particularly those which disproportionately 
affect the lives of African-American citizens.

Failure to ensure pluralism also limits the input of diverse 
outlooks in congressional debate, impairing Congress’s insight into 
the problems facing the Nation. Such diverse input is crucial to

— As noted by the New York Times:

Close to 30 percent of the Army’s troops in Operation 
Desert Storm are black, though blacks are just 14 
percent of the nation’s population between 18 and 24. In 
a land war, black casualties will be similarly 
disproportionate. Is it fair? Is it inevitable? For answers, 
one must search the soul of American society.

The Killing Fields Aren’t Level, N.Y. Times, Jan. 28, 1991, at A2.

13



combating the preconceived notions and unconscious prejudices of 
legislators. Pluralism thus permits the mutual ^ucation of 
individuals. Minorities learn of the concerns and fears of majori­
ties, while majorities learn of the lives of others and experiences 
that they may well be unable to imagine. And, we believe, over 
time, more inclusive legislative bodies will enact laws that will 
increase integration within society.

Of particular salience to the case before the Court is the 
fact that the commonalities of African-American culture and 
political interests permeate the community of Louisiana’s African 
Americans. The political cohesiveness of Louisiana’s African- 
American population has been well documented. See, e.g., Citizens 
fo r  a Better Gretna v. City o f Gretna, 636 F. Supp. 1113, 1124-26 
(E.D. La. 1986), aff’d, 834 F.2d 496 (5th Cir. 1987), cert, denied, 
492 U.S. 905 (1989); Major v. Treen, 574 F. Supp. 325, 351 
(E.D. La. 1983). It is, of course, no surprise since Louisiana’s 
African-American citizens are disproportionately undereducated, 
living in poverty, unemployed and ill-housed. See Major, 574 
F. Supp. at 351.

Despite this clear community of interest, the court below 
refused even to consider the “past and present reality” of the 
African-American experience. Thornburg v. Gingles, 478 U.S. 30, 
45 (1986). Rather, the trial court endorsed an unprincipled, 
dualistic standard, recognizing the political cohesiveness of certain 
white communities but not that of Louisiana’s African-American 
community. The “traditional” ethnic interests of Louisiana’s 
“English-Scotch-lrish” and “Continental French-Spanish-German 
Roman Catholic” communities, one concurring judge stated, may 
be used to draw congressional district lines. In that judge’s view, 
these uniformly white communities are entitled to representation 
precisely because of commonalities of interest arising from their 
ethnicity, but the interests of Louisiana’s African-American 
community are not entitled to equal recognition or respect.- This

— The trial court insisted that the state, in its two districting attempts,
had “classified its citizens along racial lines” and ‘cut[] across historical 

(continued...)

14



distinction—which is not and cannot be explained—turns the 
Fourteenth Amendment completely on its head. In this view, only 
African Americans are barred from creating districts that empower 
their community. Other racial, ethnic, and religious groups are 
entitled to draw such districts. Thus, the original intended 
beneficiaries of the Fourteenth Amendment—African-American 
slaves and their descendants—would be punished by that very 
Amendment. This is not the law and the Court must unequivocally 
reject the lower court’s infirm logic.

C. Given Present-Day Political Realities,
Genuine Int^ration Requires the Use of
Minority-M^ority Districts

As we have already pointed out, between the end of 
Reconstruction and the passage of the Voting Rights Act, Congress, 
like most other American institutions, was racially segregated. 
African Americans were almost entirely excluded. Moreover, as 
this Court recognized in Shaw, the formal enfranchisement of 
African Americans after 1965 did not actually remedy continued 
African-American exclusion from the halls of government. See 
Shaw, 113 S. Ct. at 2823; see also Thornburg v. Gingles, 478 U.S. 
30 (1986); Johnson v. De Grandy, 114 S. Ct. 2647 (1994). 
Districting practices interacted with racial bloc voting to dilute the 
voting strength of African-American voters residing within 
majority-white districts.

As Shaw recognized, all districting is race-conscious “in 
that the legislature is always aware of race when it draws district

— (...continued)
and cultural divides. ” (App. 15) The “traditional” ethnic interests violated 
were, in the trial court’s view, those of the “English-Scotch-Irish,” 
“mainline Protestants,” “Continental French-Spanish-German Roman 
Catholics,” and '*suigeneric Creoles.” Hays /, App. 66; see also Hays II, 
App. 15 (concurring opinion of Shaw, J.) The court recognized 
African-American traditions only insofar as they are modified by 
“traditional” religious interest. Hays I, App. 66 (recognizing “traditional 
rural black Protestants” and “South Louisiana black Catholics”).

15



lines....” 113 S. Ct. at 2826. As the State explains in its brief, 
there are no dispositive districting criteria that require one set of 
districts be chosen over all other possible plans. Thus, absent 
minority-majority districts, it is statistically unlikely that even a 
few, if any, minority-majority districts would be created.— And 
the brutal truth of contemporary American politics is that, absent 
minority-majority districts, African-American representation would 
virtually disappear from Congress. There are 40 African-American 
members of the House of Representatives. Only two were elected 
from majority-white districts. Not a single African-American 
representative from the Deep South states covered by Section 5 of 
the Voting Rights Act was elected from a majority-white district.

This pervasive phenomenon describes state legislative 
elections as well. A recent exhaustive scholarly study of the impact 
of the Voting Rights Act showed that during the 1980’s only one 
percent of majority-white southern state legislative districts elected 
African American representatives. By contrast roughly a quarter of 
African-American majority districts elected white representa­
tives.—

— This point is not undermined by the statement in Wright v. Rockefeller, 
376 U.S. 52, 56-58 (1964), relied on by this Court in Shaw, 113 S. Ct. 
at 2826, that it would have been difficult to draw congressional districts 
in Manhattan without “concentrations of nonwhite voters. ” While it might 
have been difficult to create four districts with equal proportions of 
nonwhite voters, it would have been entirely possible to create four 
districts all of which had a white majority.

— See Lisa Handley & Bernard Grofman, “The Impact of the Voting 
Rights Act on Minority Representation: Black Officeholding in Southern 
State Legislatures and Congressional Delegations” in Quiet Revolution in 
the South: The Impact o f the Voting Rights Act, 1965-1990, at 335, 345 
(C. Davidson & B. Grofman eds. 1994).

The absence of African-American representatives from majority-white 
districts cannot be ascribed to the placement of all African-American 
voters in minority-majority districts. A significant number of African- 
American voters live in majority-white districts, see id. at 338, but such

(continued...)

16



Lx)uisiana is no exception to this lamentable pattern of 
racial bloc voting.- Indeed, Louisiana provides a textbook 
example of the necessity of race-conscious minority-majority 
districting to achieve integration of the political process. One study, 
a 1988 comparative analysis of southern legislatures and congres­
sional delegations, found that no African-American state legislator 
was elected from a white-majority district in Louisiana.- 
Another study looked at city councils in Louisiana cities that had 
more than 2500 residents and whose voting-age population was 
more than 10% African American. Only four percent of the

— (...continued)
districts nonetheless elected only white representatives almost without 
exception, see id.

— The prevalence of racial bloc voting in Louisiana is the latest 
manifestation of Louisiana’s centuries-long effort to disfranchise African 
Americans. Louisiana’s modem history of disfranchising African 
Americans commenced soon after Reconstruction, galvanized by the fact 
that African Americans constituted more than 44% of Louisiana’s 
registered voters. See R. Engstrom et al., “Louisiana,” in Quiet 
Revolution in the South, 104 (C. Davidson & B. Grofman eds. 1994). By 
the close of the century, direct prohibitions on black voting (including 
literacy and property tests) were firmly ensconced in Louisiana’s laws, 
after a constitutional convention, the purpose of which was “to establish 
the supremacy of the white race.” United States v. Louisiana, 225 F. 
Supp. 353, 371 (E.D. La. 1963), aff’d, 380 U.S. 145 (1965).

By 1900, voter registration among African Americans in Louisiana had 
tumbled from 130,344 to 5,320, which represented just four percent of 
Louisiana’s registered voters. By 1910, African-American registration had 
further plummeted to a mere 730 voters. Id. at 374. This exclusion 
continued throughout the first half of the century. On the eve of the 
adoption of the Voting Rights Act in 1965, African Americans represented 
only 13.7% of registered voters in Louisiana although they were more 
than 30% of the state’s population. See Engstrom, supra, at 134 (Table 
4.1).

— See Handley & Grofman, supra note 23, at 338, 346 (Tables 11.3, 
11.4).

17



representatives elected from white-majority districts were African- 
American; by contrast 98% of those elected from African- 
American districts were African American.^

Three recent major state-wide elections demonstrate that 
race is still the driving force in Louisiana politics. In two races— 
first for U.S. Senate and then for governor—white supremacist 
David Duke ran disturbingly successful campaigns based implicitly, 
if not explicitly, on the resurgence of white supremacy. In both 
elections Duke’s racist views were well-publicized; in both 
elections, Duke garnered nearly 60% of the white vote.- In 
March 1994 Marc Morial, an African-American state senator, was 
elected Mayor of New Orleans against David Mintz, after a race 
dominated by allegations that the Mintz campaign had distributed 
anonymous fliers attacking black people.- Morial received 91% 
of the black vote, while Mintz received 90% of the white vote.—

— See Engstrom, supra note 24, at 103, 132.

— See J. Wardlaw, Johnson Beats Duke for Senate, New Orleans Times- 
Picayune, Oct. 7, 1990, at A1 (reporting election for Senate); J. Wardlaw, 
I t ’s Edwards—Heavy Voter Turnout Buries Duke, New Orleans Times- 
Picayune, Nov. 17, 1991, at A l.

Notably, when the court below imposed its own, judicially-invented 
apportionment plan on the State of Louisiana, David Duke crowed that 
one of the plan’s districts was “tailor made” for his candidacy. See Elaine 
Jones, In Peril: Black Lawmakers, N.Y. Times, Sept. 11, 1994, Sec. IV. 
at 19.

— R. Theim, I t’s Morial! Sweeping Victory Caps Dirty Campaign, New 
Orleans Times-Picayune, March 6, 1994, at Al.

— C. Warner, Racial Concerns Swung Key Voters, New Orleans Times- 
Picayune, March 6, 1994, at A l. Although Morial’s victory may forward 
the cause of African Americans in New Orleans, the extreme racial 
polarization of the electorate does not portend the entrance of blacks into 
the mainstream of Louisiana politics.

18



The bottom line is this; from our own experience, the 
members of the Caucus have seen the tangible and intangible 
differences the presence of substantial numbers of African 
Americans make in the work of Congress. We also know, as 
practical politicians aware of the voting behavior of citizens inside 
and outside our districts, that minority-majority districts are the 
only way of providing African-American voters with an oppor­
tunity to elect the representatives of their choice. Thus, if the 
American political system is to achieve real integration at all levels 
of the political process while continuing to use single-member 
districts to elect congressional representatives, race-conscious 
minority-majority districts are essential.

III.

MINORITY-MAJORITY DISTRICTS LIKE LOUISIANA’S 
DISTRICT FOUR NEITHER SEGREGATE VOTERS NOR

IMPAIR FULL REPRESENTATION OF ALL 
CONSTITUENTS’ INTERESTS

Shaw identified several potential dangers that the deliberate 
creation of “bizarre,” “highly irregular” or “tortured” minority- 
majority districts might cause. See Shaw, 113 S. Ct. at 2825-27. 
For the reasons set out at length in the State’s brief, the Caucus 
believes that Louisiana’s District Four does not fall within this 
suspect category; that district adheres to many traditional districting 
criteria and is no more irregular or bizarre than past Louisiana 
congressional districts. Nevertheless, an assessment of the fears 
noted by the Shaw Court—an assessment all but abandoned by the 
court below—reveals that Louisiana’s District Four does not foster 
any detrimental result.

Shaw's use of the word “segregate” makes clear the Court’s 
concern that race-conscious districting may somehow separate 
voters by race and limit voters’ decisions about whom to support 
and how to conduct their everyday affairs, as well as affect public 
officials’ behavior after an election is over. The Caucus submits 
that, under current conditions, neither Louisiana’s District Four nor 
the other minority-majority districts challenged in the wake of

19



Shaw in fact give rise to the potential harms hypothesized by the 
Court.

A. Contrary to the Suggestion of S^r^ation, 
the Challenged Congressional Districts Are 
Among the Most Racially Int^rated 
Districts in the Nation

Large numbers of whites and African Americans live in 
racially segregated neighborhoods. This neighborhood-level 
segregation is the product of many factors, including past and 
present racial discrimination, as well as varying economic opportu­
nity. Not surprisingly, then, many congressional districts are 
racially segregated. Their populations are either overwhelmingly 
white, African American or Hispanic.^ Ironically, neither this 
nor any other pending voting rights case has challenged the legality 
of these districts based on their segregated characteristics.

Rather, districts such as Louisiana’s District Four are under 
siege. District Four, and the other challenged minority-majority 
districts, however, are among the least segregated districts in the 
Nation. Unlike the vast majority of congressional districts, these 
districts are racially diverse rather than homogeneous. Indeed, 
while the trial court concluded that District Four “[s]eparate[s]... 
[d]ivide[s]...[and] [s]egregate[s],” Hays II, App. 11, Louisiana’s 
African-American citizens from other citizens, in truth the district 
is characterized by a significant degree of racial integration. Only 
slightly more than half of that district’s voters—55%—are African 
American, while 45% are white. Further, as the trial court noted, 
Louisiana boasts a large African-American population dispersed

— For example, 28 congressional districts in the South are more than 
90% non-Hispanic white. See David Bositis, Redistricting and 
Representation: The Creation o f Majority-Minority Districts in the South, 
The Evolving Party System and Some Observations on the New Political 
Order 26 (The Joint Center for Political and Economic Studies 1994).

20



across the state, the majority of whom live outside of District 
Four.2i'

Other challenged districts are no less integrated. North 
Carolina’s Districts One and Twelve, both maligned as segregated, 
are similarly integrated, each with voting age populations of 
approximately 53% African American, 46% white and 1% 
Hispanic. Texas’ District Eighteen is a coalition of voters: 49% 
African American, 37% white and 14% Hispanic, and District 
Thirty is similarly integrated. The distribution of the voting-age 
residents of Georgia’s Eleventh District is 60% African American, 
39% white and 1 % Hispanic. When these districts are compared to 
some of their white-majority counterparts, such as North Carolina’s 
Fifth, which is 85% white, or Texas’s Fourth, which is 89% white, 
or Georgia’s Ninth, which is 94.9% white, the integrated nature of 
these districts and of District Four is clear.-

The very language of the lower court in this case used to 
condemn the Fourth District in fact illustrates its integrated 
character;

District 4 includes North Lx)uisiana English- 
Scotch-Irish, mainline Protestants, South Louisiana 
French-Spanish-German Roman Catholics, tradi­
tional rural black Protestants, and Creoles. The 
district encompasses North, Central, and South 
Louisiana, each of which has its own unique 
identity, interests, culture, and history. The agri­
culture regions of District 4 include cotton, soy­
bean, rice, sugar cane, timber.

-  The trial court’s plan created a minority-majority district in southern 
Louisiana, centered around New Orleans. The suggestion that that district, 
although it has a similar ethnic distribution as District Four, is not 
segregated simply because of its regular boundaries, is logically insup­
portable.

-  See Higginbotham et al. , supra note 1, at 1653-57 Apps. E & F (for 
racial composition of southern congressional districts).

21



Hays II, App. 15-16 (concurring opinion). In light of this char­
acterization, how could the district court have concluded that 
District Four is segregated? How could it defend the districting plan 
it drew, in which six of seven districts have a substantial white 
majority? The district court’s answer appears chilling: districts that 
have even the slightest majority o f African Americans are segre­
gated, while white-majority distrias are integrated. This Court 
must unequivocally reject this pernicious view.

Far from increasing segregation within the political process, 
the challenged minority-majority districts are integrated. Further, 
there is no danger that these districts will cause racial segregation. 
As an empirical matter, citizens simply do not choose where to live 
based on congressional district lines. See Shaw v. Hunt, 861 
F. Supp. 408 (E.D.N.C. 1994). Thus, the Voting Rights Act and 
reapportionment more generally will not affect residential patterns. 
Minority-majority districts, in other words, do not exacerbate 
existing segregated residential patterns. Contrary to Judge Walter’s 
charge that districts like the Louisiana Fourth “say now: ‘Separate! ’ 
‘Divide!’ ‘Segregate!’,” Hays II, App. 11, these districts bring 
together African-American and white voters and do nothing more 
than recognize that, at the neighborhood level, Louisiana, like 
many other states, is already separated and segregated, and 
Louisiana voting patterns are already divided along racial lines.

B. The Representatives Elected From
the Challenged Districts Faithfully
Represent the Interests of All Their Constituents

The other danger this Court identified in Shaw was that 
representatives elected from “bizarre” minority-majority districts 
might ignore the needs of constituents who are not members of the 
racial majority within their districts. Given legislators’ inevitable 
awareness of the racial composition of their districts, see Shaw, 113 
S. Ct. at 2826, however, this danger obviously exists regardless of 
the shape of the district that elected them, the racial component of 
the majority, and the race of the elected representative. Surely this 
Court does not suppose that African-American representatives from

22



minority-majority districts are inherently less likely than their white 
counterparts to rq>resent all their constituents fairly.^'

In fact, members of the Caucus represent all the residents 
of their districts, whatever their race. Our doors are always open 
to all constituents.- We perform the traditional constituent 
service functions with the same vigor for white constituents as we 
do for African-American constituents. We also zealously represent 
the geographically defined interests of our districts—for instance, 
the needs of particular employers or industries.

Moreover, it would be illogical to conclude that the repre­
sentatives elected from the Lxiuisiana’s District Four or other 
minority-majority districts pursue only a “racial agenda.” Congres­
sional representatives have voting responsibility on a wide range of 
issues. While some of those issues, such as health care, crime 
control and welfare reform, are issues about which African 
Americans have strong concerns, solutions to these issues are not 
approached on the basis of race. Indeed, by all assessments, the 
African-American representatives of the 103rd Congress acted ably 
and fairly to represent the interests of all of their constituents. -

— The implication that white representatives elected from white-majority 
districts can adequately and fairly represent the interests of their minority 
constituents, but that African Americans or other minorities cannot 
represent the interests of white constituents, is indefensible. In fact, this 
nation’s experience has been to the contrary: for centuries many white 
legislators at all levels of government acted against the interests of their 
African-American constituents.

— Compare Jeffers v. Clinton, 730 F. Supp. 196, 214 (E.D. Ark. 1989) 
(white state legislators in Arkansas sent black constituents from their own 
districts to seek assistance from African-American representatives elected 
from other districts), affd, 498 U.S. 1019 (1991) .

— See Bositis, supra note 30, at 29-30.

23



C. Minority-Miyority Districts
Do Not Increase Racial Polarization

Nothing in the record in this case or in any of the other 
cases that have followed Shaw has provided even the slightest 
empirical support for the proposition that race-conscious districting 
has increased the levels of racial-bloc voting within minority- 
majority districts. Indeed, our experience suggests the contrary with 
regard to the attitudes of white voters. Familiarity with black 
elected officials breeds content, not contempt: white voters are far 
more likely to vote for African-American incumbents than they are 
for African Americans seeking open seats.

The reasons, as the previous section of this brief suggests, 
are not hard to fathom. Our constituent service, our championship 
of the diverse interests of our districts’ citizens, and our fidelity to 
the public interest show our white constituents that African- 
American elected officials will represent them fairly and diligently. 
Thus, virtually all of us have received increased support from the 
white community over time. If anything, then, our districts have 
decreased the levels of racial polarization or balkanization in 
American society.

CONCLUSION

This case raises fundamental issues concerning our 
representative democracy. To forge their view of American 
democracy, appellees conjure a utopia—a color-blind society— 
where an individual’s race has little impact on his or her life, where 
the race of a candidate for political office does not influence 
citizens’ voting behavior and where African Americans do not have 
shared political interests simply because of the color of their skin. 
This is our dream too. As the poet Langston Hughes eloquently 
wrote:

24



I dream a world where all 
Will know sweet freedom’s way 
Where greed no longer saps the soul 
Nor avarice blights our day 
A world I dream where black or white.
Whatever race you be,
Will share the bounties of the earth 
And every man is free.—

But this dream cannot substitute for reality in interpreting 
the Constitution today, at a time when the United States has not yet 
attained this hopeful vision. The realities are that race matters; that 
voting is racially polarized; that the color of a candidate’s skin does 
affect voting; that many African Americans do have shared political 
interests. In light of these realities, the necessity of minority- 
majority districting to render our democracy representative is 
compelling.

The Hays Court abdicated its responsibility to ground its 
legal analysis in the racial realities of the Nation today. This Court 
should reject the conclusions of the court below, which are in 
conflict with the realities of racial bloc voting and African- 
American exclusion from the political process, as well as the rules 
laid down in Shaw.

From 1877 to 1991, no African American from Louisiana 
served in the United States Congress. Louisiana’s post-1990 
reapportionment represents the state’s good-faith effort to remedy 
its tragic history of racial exclusion. Now, for the first time in the 
state’s history, Louisiana has a truly integrated congressional 
delegation that fairly reflects the state’s racial diversity. Two 
African Americans now serve; each represents a racially integrated 
district.

This Court should not sanction efforts to turn the clock 
back to the days of a lily-white legislature governing a diverse

— L. Hughes, “I Dream a World,” m American Negro Poetry 71-72 (A. 
Bontempsed., 1963).

25



nation. This Court should emphatically reject the theory that a 55% 
African-American constituency—like the challenged Louisiana 
Fourth District—is segregated while an 80% white district—like the 
one dictated by the court below—is not. Thus, this Court should 
reverse the judgment of the district court and hold that states have 
the power to ensure the equal opportunity of African-American 
citizens to participate in all levels of a pluralist political process.

Dated: January 30, 1995

Respectfully submitted,

A. Leon H igginbotham , Jr . 
Counsel o f Record

Gregory A. Clarick
Marcella D avid
1285 Avenue of the Americas
New York, New York 10019-6064
(212)373-3000
Counsel fo r  the Congressional
Black Caucus

Of  Counsel:

Pamela S. Karlan 
1525 Massachusetts Avenue 
Cambridge, MA 02138 
(617) 495-4614

26



A P P E N D I X  A



APPENDIX A:

AFRICAN-AMERICANS IN THE U.S. CONGRESS, 1870-1995 

United States Senate

Member
Party-
State Years

Hiram R. Revels R-MS 1870-71
Blanche K. Bruce R-MS 1875-81
Edward W. Brooke R-MA 1967-79
Carol Moseley-Braun D-IL 1993-

United States House of Reoresentatives

Joseph H. Rainey R-SC 1870-79
Jefferson F. Long R-GA 1870-71
Robert B. Elliot R-SC 1871-74
Robert C. De Large R-SC 1871-73
Benjamin S. Turner R-AL 1871-73
Josiah T. Walls R-FL 1871-73
Richard H. Cain R-SC 1873-75

1877-79
John R. Lynch R-MS 1873-77

1882-83
James T. Rapier R-AL 1873-75
Alonzo J. Ransier R-SC 1873-75
Jeremiah Haralson R-AL 1875-77
John A. Hyman R-NC 1875-77
Charles E. Nash R-LA 1875-77
Robert Smalls R-SC 1975-79
James E. O’Hara R-NC 1883-87
Henry P. Cheatham R-NC 1889-93
John M. Langston R-VA 1890-91

27



Member
Party-
State Ygars

Thomas E. Miller R-SC 1890-91
George W. Murray R-SC 1893-95

Gwrge W. White R-NC
1896- 97
1897- 1901

Oscar DePriest R-IL 1929-35
Arthur W. Mitchell D-IL 1935-43
William L. Dawson D-IL 1943-70
Adam C. Powell, Jr. D-NY 1945-67

Charles C. Diggs, Jr. D-MI
1969-71
1955-80

Robert N.C. Nix D-PA 1958-78
Augustus F. Hawkins D-CA 1963-90
John Conyers, Jr. D-MI 1965-
William L. Clay D-MO 1969-
Louis Stokes D-OH 1969-
Shirley A. Chisholm D-NY 1969-82
George W. Collins D-IL 1970-72
Ronald V. Dellums D-CA 1971-
Ralph H. Metcalfe D-IL 1971-78
Parren H. Mitchell D-MD 1971-86
Charles B. Rangel D-NY 1971-
Walter E. Fauntroy D-D.C. 1971-90
Yvonne B. Burke D-CA 1973-79
Cardiss Collins D-IL 1973-
Barbara C. Jordan D-TX 1973-78
Andrew J. Young D-GA 1973-77
Harold E. Ford D-TN 1975-
Bennett M. Steward D-IL 1979-80
Julian C. Dixon D-CA 1979-
William H. Gray D-PA 1979-91
Mickey Lei and D-TX 1979-89
Melvin Evans R-V.I. 1979-80
George W. Crockett, Jr. D-MI 1980-90
Mervyn M. Dymally D-CA 1981-92

28



Member
Party-
Statg Years

Gus Savage D-IL 1981-92
Harold Washington D-IL 1981-83
Katie B. Hall D-IN 1982-84
Major R. Owens D-NY 1983-
Edolphus Towns D-NY 1983-
Alan Wheat D-MO 1983-94
Charles A. Hayes D-IL 1983-92
Alton R. Waldon, Jr. D-NY 1986-87
Mike Espy D-MS 1987-93
Floyd H. Flake D-NY 1987-
John Lewis D-GA 1987-
Kweisi Mftime D-MD 1987-
Donald M. Payne D-NJ 1989-
Craig A. Washington D-TX 1989-84
Barbara R. Collins D-MI 1991-
Gary A. Franks R-CT 1991-
William J. Jefferson D-LA 1991-
Eleanor H. Norton D-D.C. 1991-
Maxine Waters D-CA 1991-
Lucien E. Blackwell D-PA 1991-94
Sanford Bishop D-GA 1993-
Corrine Brown D-FL 1993-
Eva M. Clayton D-NC 1993-
James E. Clyburn D-SC 1993-
Cleo Fields D-LA 1993-
Alcee L. Hastings D-FL 1993-
Earl F. Hillard D-AL 1993-
Eddie B. Johnson D-TX 1993-
Cynthia McKinney D-GA 1993-
Carrie Meek D-FL 1993-
Mel Reynolds D-IL 1993-
Bobby L. Rush D-IL 1993-
Robert C. Scott D-VA 1993-
Walter R. Tucker, III D-CA 1993-

29



Member
Party-
Stats Ygar^

Melvin Watt D-NC 1993-
Albert R. Wynn D-MD 1993-
Bennie G. Thompson D-MS 1993-
Sheila Jackson Lee D-TX 1995-
Chaka Fattah D-PA 1995-
Victor 0 . Frazer I-V.I. 1995-
J.C. Watts R-OK 1995-

30