United States v. Hays

    Nos. 94-558 and 94-627

In tjje Supreme Court of tl̂ e ®uitetr ̂ tatesJ

U nited States of A merica, appellant

V.

Ray H ays, et al.

State op L ouisiana, et al., appellants

V.

R ay H ays, et al.

ON APPEAL FROM THE UNITED STATES DISTRICT 
COURT FOR THE WESTERN DISTRICT OF LOUISIANA

REPLY BRIEF FOR THE UNITED STATES

Drew S. Days, III 
Solicitor General 
Department of Justice 
Washington, D.C. 20530 
(202) 5U-2217



TABLE OF AUTHORITIES

Cases: Page
City of Richmond v. J.A. Croson Co., 488 U.S. 469

(1989) .......................................................................................  8
DeWitt V. Wilson, 856 F. Supp. 1409 (E.D. Cal. 1994),

juris, statement filed, No. 94-275 (Aug. 8, 1994) ...........  3, 5
Gomillion v. Lightfoot, 364 U.S. 339 (1960).....................  2
Johnson v. Miller, 864 F. Supp. 1354 (S.D. Ga. 1994), 

prob. juris, noted, 115 S. Ct. 713 (1995) (Nos. 94-631,
94-797 & 94-929).....................................................................  3, 4

Rogers v. Lodge, 458 U.S. 613 (1982) ...................................  11
Shaw V . Hunt, 861 F. Supp. 408 (E.D.N.C. 1994), juris, 

statements filed. Nos. 94-923 & 94-924 (Nov. 21, 1994) .. 3, 4
Shaw V. Reno, 113 S. Ct. 2816 (1993) ...................................  2, 6
Vera v. Richards, 861 F. Supp. 1304 (S.D. Tex. 1994), 

juris, statements filed. Nos. 94-805 (Oct. 31, 1994),
94-806 (Nov. 2, 1994) & 94-988 (Dec. 1, 1994)................. 3, 4

Village of Arlington Heights v. Metropolitan Housing
Dev. Corp., 429 U.S. 252 (1977).........................................  2

Wilson V . Eu, 823 P.2d 545 (Cal. 1992)...........................  5
Wright v. Rockefeller, 376 U.S. 52 (1964)......................  2
Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986) ... 8, 9

Constitution and statutes: Page

U.S. Const. Amend. XIV (Equal Protection Clause) ......... 2
Voting Rights Act of 1965, 42 U.S.C. 1973 et seq.:

§ 2, 42 U.S.C. 1973 ..............................................................  8, 9
§ 5, 42 U.S.C. 1973c ........................................................  8, 10, 11

(I)



In t(ie Supreme Court of tl̂ e ®rateb ̂ tatesJ
October Term, 1994

No. 94-558

United States of America, appellant

V.

Ray Hays, et al.

No. 94-627

State of Louisiana, et al., appellants

V.

Ray Hays, et al.

ON APPEAL FROM THE UNITED STATES DISTRICT 
COURT FOR THE WESTERN DISTRICT OF LOUISIANA

REPLY BRIEF FOR THE UNITED STATES

1. We argue in our opening brief (Br. 14-20) that 
the district court erred in holding that “[rJace- 
conscious redistricting, while not always unconsti­
tutional, is always subject to strict scrutiny.” J.S. 
App. 5a. While agreeing that race-conscious re­
districting is not always subject to strict scrutiny, 
Br. 23-24, appellees nevertheless advocate a very

(1)



similar standard. Relying on Village of Arlington 
Heights v. Metropolitan Housing. Dev. Corp., 429 
U.S. 252, 266 (1977), appellees contend (Br. 19-20) 
that strict scrutiny is appropriate any time that race 
is “a motivating factor” in determining a district’s 
boundaries.

As we have discussed in our opening brief (Br. 
15-20), redistricting presents a unique setting for 
applying the Equal Protection Clause. In redistrict­
ing, States must reconcile the competing claims to 
political influence of different politically cohesive 
groups. Members of a racial minority often form such 
a competing group. If a State’s intent to draw district 
lines to accommodate the interests of a politically 
cohesive racial minority always triggered strict 
scrutiny—while accommodating the interests of 
other politically cohesive groups did not—it would 
put racial minority groups at a severe competitive 
disadvantage in the redistricting process. Far from 
furthering equal protection goals, application of 
strict scrutiny whenever redistricting accommodates 
the political interests of racial minorities would 
seriously undermine those goals.*

The other cases relied upon by appellees do not support 
their view that strict scrutiny applies to any district created 
with race as a motivating factor. In Gomillion v. Lightfoot, 364 
U.S. 339 (1960), the municipal lines were bizarre and had the 
effect of depriving blacks of the right to vote in municipal 
elections. The claim at issue in Wright v. Rockefeller, 376 U.S. 
52, 53-54 (1964) was that the district lines were irrational and 
had the effect of reducing the political power of a racial 
minority group. Appellees’ assertion that, following this 
Court’s decision in Shaw v. Reno, 113 S. Ct. 2816 (1993), all of 
the district courts have held that strict scrutiny applies to any 
district created with race as a motivating factor is also 
incorrect. Besides the district court in this case, only one other



Application of appellees’ proposed approach would 
also cause a dramatic increase in the number of 
redistricting plans subject to strict scrutiny. Guided 
by political considerations, a sense of fairness, or 
a desire to comply with the Voting Rights Act, 
jurisdictions at all levels of government often create 
majority-minority districts. Appellees’ proposed 
approach would subject all those districts to strict 
scrutiny.

Appellees attempt to minimize the practical 
consequences of their position by claiming that in 
this case, the North Carolina case, and the Georgia 
case, strict scrutiny “was applied to only one 
district,” and that “[e]ven in Texas, only three of that 
State’s thirty districts were subjected to strict 
scrutiny.” Br. 25 & n.4. That claim is misleading.

In this case, the district court applied strict 
scrutiny to only one Louisiana district. But that is 
only because the district court concluded that 
appellees did not challenge the majority-minority 
district in New Orleans. J.S. App. 41a. Had that

district court has adopted that standard. See Shaw v. Hunt, 
861 F. Supp. 408 (E.D.N.C. 1994), juris, statements filed, Nos. 
94-923 & 94-924 (Nov. 21, 1994). The other three district courts 
have rejected that standard. See Johnson v. Miller, 864 F. 
Supp. 1354, 1371-1374 (S.D. Ga. 1994) (strict scrutiny applies 
when race is the overriding factor in the creation of a district), 
prob. juris, noted, 115 S. Ct. 713 (1995) (Nos. 94-631, 94-797 & 
94-929); Vera v. Richards, 861 F. Supp. 1304, 1344-1345 (S.D. 
Tex. 1994) (strict scrutiny applies only to districts that reflect 
an extraordinary departure from the State’s traditional 
redistricting practices), juris, statements filed. Nos. 94-805 
(Oct. 31, 1994), 94-806 (Nov. 2, 1994) & 94-988 (Dec. 1, 1994); 
DeWitt v. Wilson, 856 F. Supp. 1409, 1411-1413 (E.D. Cal. 1994) 
(strict scrutiny applies only to dramatically irregular 
districts), juris, statement filed. No. 94-275 (Aug. 8, 1994).



district been challenged, it would have been subject to 
strict scrutiny under appellees’ motivating factor 
approach. In North Carolina, both majority-minority 
districts were subjected to strict scrutiny by the 
district court, not just one. Shaw v. Hunt, 861 F. 
Supp. 408, 473-474 (E.D.N.C. 1994), juris, statements 
filed. Nos. 94-923 & 94-924 (Nov. 21,1994). In Georgia, 
only one of the three maj ority-minority districts was 
subjected to strict scrutiny, but that is because the 
plaintiffs in that litigation challenged only one of the 
three districts. Johnson v. Miller, 864 F. Supp. 1354, 
1359 (S.D. Ga. 1994), prob. juris, noted, 115 S. Ct. 713 
(1995) (Nos. 94-631, 94-797 & 94-929). Had plaintiffs 
challenged all three districts, and had the court 
applied appellees’ proposed test, all three majority- 
minority districts would have been subjected to strict 
scrutiny. Id. at 1366-1377.

In Texas, it is true that only three of the State’s 
congressional districts were subjected to strict 
scrutiny. Vera v. Richards, 861 F. Supp. 1304, 1337- 
1344 (S.D. Tex. 1994), juris, statements filed. Nos. 
94-805 (Oct. 31, 1994), 94-806 (Nov. 2, 1994) & 94-988 
(Dec. 1, 1994). The court expressly found, however, 
that race was a motivating factor in 16 additional 
districts challenged by the plaintiffs in that case. Id. 
at 1325-1328. The court failed to subject those 
districts to strict scrutiny only because it limited 
strict scrutiny to districts that, in its view, reflected 
an extraordinary departure from the State’s 
traditional redistricting practices. Id. at 1344-1345. 
Appellees also do not discuss the California case. 
There, the State’s redistricting plans for Congress, 
state Assembly, and state Senate “attempted to 
reasonably accommodate the interests of every 
‘functionally, geographically compact’ minority group



of sufficient voting strength to constitute a majority 
in a single-member district.” DeWitt v. Wilson, 856 
F. Supp. 1409, 1411 (E.D. Cal. 1994), juris, statement 
filed. No. 94-275 (Aug. 8, 1994). Had the court applied 
appellees’ proposed standard in that case, it would 
have subjected virtually all of the 54 majority- 
minority legislative districts (14 congressional, 27 
state Assembly, 13 state Senate) to strict scrutiny.
See Wilson v. Eu, 823 P.2d 545, 580-596 (Cal. 1992). 
Because the court concluded that strict scrutiny does 
not apply when race is considered in the context of 
traditional redistricting principles, however, no 
California districts were subjected to strict scrutiny. 
DeWitt, 856 F. Supp. at 1415.

Faced with the difficulty of advocating a pure 
motivating factor analysis in the redistricting 
context, appellees ultimately retreat from that 
position to some extent. According to appellees (Br. 
24), because “[mjembers of one race can * * * form a 
cohesive and compact community[,] * * * race may 
be a legitimate consideration in helping to determine 
the boundaries of a particular community.” Thus, 
race can be a factor in determining district 
boundaries as long as it does not become “the 
touchstone for an electoral district.” Ibid. At 
another point, appellees propose a slightly different 
formulation (Br. 34): Strict scrutiny is triggered 
when “the fundamental factor driving [a district] was 
race.” As we have explained in our brief in United 
States V. Johnson, Nos. 94-929, 94-631 & 94-797, in 
addition to being too difficult to administer, a 
fundamental factor test is subject to the same 
objections as a motivating factor test: It would put 
politically cohesive racial minority groups at a severe 
disadvantage in the redistricting process, and it



6

would also subject most majority-minority districts 
to strict scrutiny.

For those reasons, both of appellees’ proposed 
standards are inappropriate. Instead, as we have 
argued, when a State intentionally creates a district 
in which members of a politically cohesive racial 
minority constitute a majority, that district is not 
subject to strict scrutiny unless it is “so extremely 
irregular on its face that it rationally can be viewed 
only as an effort to segregate the races for purposes 
of voting.” Shaw, 113 S. Ct. at 2824.

In this case, there is overwhelming evidence that 
blacks in District 4 are politically cohesive. See U.S. 
Br. 29. District 4 is also not highly irregular or 
bizarre. U.S. Br. 22-26. Accordingly, District 4 
should not have been subjected to strict scrutiny.

2. We argue in our opening brief (Br. 21) that the 
question whether a district is bizarre must be decided 
in the context of the practices of the State in which 
the district is created. The relevant inquiry is 
whether the district is bizarre when compared to 
other districts created through the S tate’s 
traditional districting practices. Because District 4 
resembles and is actually modelled on various ver­
sions of old District 8 (U.S. Br. 22), it is not bizarre 
within the meaning of Shaw.

a. Appellees do not appear to challenge our 
contention that the bizarreness inquiry is a 
comparative one. They contend instead that District 
4 should be subjected to strict scrutiny because it 
differs from old District 8 in numerous respects (Br. 
31-32). As the relevant maps demonstrate, however, 
the resemblance between District 4 and old District 8 
is unmistakable. Both districts are located in the 
same general area of the State and both run in the



same general direction along the Red and Mississippi 
Rivers. When compared to old District 8, District 4 
is not at all bizarre.

b. As we explain in our opening brief, rather than 
using old District 8 as the benchmark for 
determining whether District 4 is bizarre in the 
context of Louisiana districting practices, the 
district court undertook an inquiry that was 
apparently based on its own views of proper 
redistricting criteria. The court found that District 
4 is bizarre because, in the court’s view, it is 
not sufficiently compact, splits too many parishes 
and large cities, and divides various political 
communities. See U.S. Br. 25-26.

Appellees do not defend most of the district court’s 
bizarreness analysis. Instead, they seek to justify 
the district court’s finding based entirely on the 
evidence that District 4 splits parishes and cities. 
See Appellees’ Br. 29-30. But as we have noted (Br. 
25), there is nothing remarkable about District 4’s 
splitting of parishes and cities. Previous Louisiana 
plans have split as many as seven parishes and two 
major cities. Ibid.-, State’s Br. 27-28 & n.33. The fact 
that District 4 splits 12 parishes and two major cities 
does not constitute a sufficient departure from prior 
practices to justify a finding that District 4 is 
bizarre.

Appellees insist (Br. 29-30) that the difference is 
that this time parishes and cities were divided in 
order to help create a majority-minority district. As 
we have discussed, however, there is nothing suspect 
about an intent to create a district in which a 
politically cohesive minority constitutes a majority 
as long as the shape of the district does not depart 
dramatically from the State’s districting practices.



8

Because the minority group members in District 4 
are politically cohesive and the district is not bizarre 
under that standard, District 4 should not have been 
subjected to strict scrutiny.

3. We argue in our opening brief that even 
assuming strict scrutiny is applicable, the State’s 
plan satisfies that standard because it is narrowly 
tailored to comply with Sections 2 and 5 of the Voting 
Rights Act. In deciding this question, the district 
court inquired into whether the failure to draw a 
second majority-minority district would actually 
violate Section 2 or 5. The relevant inquiry, however, 
is whether the State had a firm basis for believing 
that District 4 may have been necessary to comply 
with those statutory prohibitions. Application of that 
standard leads to the conclusion that the State 
established a compelling interest sufficient to justify 
District 4. See U.S. Br. 27-33.

Appellees argue (Br. 35-39) that the district court’s 
actual violation standard is the correct one for 
judging the constitutionality of the State’s plan. But 
as we have noted, this Court has already rejected the 
view that a State seeking to comply with federal 
nondiscrimination requirements must prove that its 
actions are actually required by federal law. U.S. Br. 
27-28. Instead, this Court has made clear that the 
State may engage in race-conscious action when it 
has a firm basis for believing that such action may be 
required by federal law. See City of Richmond v. 
J.A. Croson Co., 488 U.S. 469, 500 (1989), and Wygant 
V. Jackson Bd. of Educ., 476 U.S. 267, 277 (1986) 
(opinion of Powell, J.). The firm basis in evidence 
standard (rather than a standard requiring proof that 
an actual violation would have occurred) is appro­
priate in order to encourage voluntary compliance



9

with federal nondiscrimination law. Wygant, 476 
U.S. at 290-291 (O’Connor, J., concurring in part and 
concurring in the judgment). Appellees make no 
effort to reconcile their standard with Croson and 
Wygant.

Appellees argue (Br. 35-39) that the standard we 
propose immunizes constitutional violations so long 
as they are committed with a “pure heart.” Under 
the standard we propose, however, a State’s sub­
jective belief that the Voting Rights Act may require 
a majority-minority district is not alone sufficient to 
justify the creation of such a district: However pure, 
the State’s belief must also be objectively reasonable 
in light of the circumstances.

4. Appellees argue (Br. 39-49) that even under the 
standard we propose, a second majority-minority 
district is not justified by Section 2. As we have 
noted, however, the evidence shows that (1) blacks 
who live along the Red and Mississippi Rivers are 
politically cohesive, (2) whites in that area vote as 
a bloc against the candidates preferred by blacks, 
(3) the black community living along the Red and 
Mississippi Rivers is sufficiently large and compact 
to constitute a majority in a district, and (4) absent 
the creation of such a district, blacks would be very 
substantially underrepresented in the Louisiana 
congressional delegation when compared to their 
percentage in the State’s population. See U.S. Br. 29- 
30. That evidence is sufficient to show that the State 
had a firm objective basis for its conclusion that a 
second majority-minority district was needed to 
comply with Section 2.

Appellees contend (Br. 46-48) that the district 
court’s finding that the compactness requirement 
was not satisfied precludes any reliance on Section 2.



10

The district court’s finding, however, was based on a 
subjective “eye of the beholder” test of compactness. 
See Appellees’ Br. 47. That is not the right legal 
standard for judging compactness. As we have 
explained (Br. 29-30), the relevant inquiry is whether 
District 4 is reasonably compact in light of the 
State’s traditional redistricting practices. Because 
District 4 is reasonably compact when compared to 
old District 8, it satisfies the compactness require­
ment. Appellees point to no evidence that would 
justify a different conclusion.

Appellees also contend (Br. 48-49) that there was 
insufficient evidence of racially polarized voting in 
Louisiana. But as we have shown, the evidence 
of polarized voting was overwhelming. See U.S. Br. 
29. Appellees’ assert (Br. 48) that the district 
court rejected the evidence presented by the United 
States’ expert on that issue. In fact, however, the 
district court interrupted the examination of that 
expert to state that it was already convinced by his 
report that racial polarization existed and that 
further examination on that issue was therefore 
unnecessary. J.A. 67.

5. Appellees also argue (Br. 41) that the evidence 
was insufficient to justify the State’s belief that a 
second majority-minority district was necessary to 
comply with Section 5. The evidence established, 
however, that (1) the State had impermissibly diluted 
minority voting strength in its 1980s congressional 
redistricting plan, (2) the Attorney General had 
objected to the State’s recent Board of Elementary 
and Secondary Education plan on the ground that the 
State’s failure to create a second majority-minority 
district reflected purposeful discrimination, and (3) 
the State had created majority-white districts in



11

prior congressional redistricting plans that were 
similar in compactness to District 4. See U.S. Br. 31; 
State’s Br. 36-37. That evidence was sufficient to 
provide the State with a firm basis for believing that 
it would have difficultly satisfying its burden under 
Section 5 to show that its failure to create a second 
majority-minority district was free of discriminatory 
purpose.

Appellees’ only response (Br. 41) is that none of the 
pieces of evidence noted above is sufficient by itself to 
prove that a plan with only one majority-minority 
district would have reflected purposeful discrimi­
nation. If the State had attempted to obtain 
preclearance for a plan with only one majority- 
minority district, however, each item of evidence 
noted above would not have been viewed in isolation. 
The question would have been whether the totality of 
the relevant facts raised an inference of purposeful 
discrimination. Rogers v. Lodge, 458 U.S. 613, 618 
(1982). The State would, moreover, have had to 
shoulder the burden of proof on that issue. In those 
circumstances, the State’s decision to comply 
voluntarily with Section 5 by drawing a second 
majority-minority district was entirely reasonable 
and supported by a strong basis in evidence.

6. Finally, we have argued (Br. 33-34) that the 
State could constitutionally draw a second majority- 
minority district in order to further its compelling 
interest in ameliorating the consequences that 
racially polarized voting continue to have on the 
opportunity for minority voters to elect candidates of 
their choice. Appellees contend (Br. 49) that because 
the district court found that the compactness 
requirement was not satisfied, there was no need for 
the court to address the State’s asserted interest in



12

redressing the effects of racially polarized voting. As 
we have already discussed, however, the district 
court erred in concluding that the compactness 
requirement was not satisfied.

In addition, the assumption underlying appellees’ 
position is that the only compelling interest that a 
State may assert is compliance with federal law. 
That assumption is incorrect. As we have explained 
(Br. 33-34), independent of its responsibilities under 
the Voting Rights Act, a State has a compelling 
interest in remedying the effects of racial discrimi­
nation within its borders. That interest fully 
justifies the State’s decision to create a second 
majority-minority district.

For the reasons stated in our opening brief as well 
as those stated herein, the district court’s judgment 
should be reversed.

Respectfully submitted.

Drew S. Days, III 
Solicitor General

April 1995