The Board of Education of the Little Rock School District v. Clark Brief in Opposition to Certiorari

    No. 95-1682

IN THE SUPREME COURT OF THE UNTIED STATES 
OCTOBER TERM, 1995

LOUISIANA LEGISLATIVE BLACK CAUCUS, 
CONGRESSMAN CLEO FIELDS, BERNADINE 

ST. CYR, PATRICK FONTENOT, HAZEL FREEMAN, 
AND RALPH WILSON,

Appellants,
v.

RAY HAYS, ET AL„
Appellees.

ON  APPEAL FROM THE UNITED STATES 
DISTRICT COURT FOR THE 

WESTERN DISTRICT OF LOUISIANA

PETITION FOR REHEARING

ROBERT B. MCDUFF 
771 North Congress Street 
Jackson, Mississippi 39202 
(601) 969-0802

BARBARA R. ARNWINE 
THOMAS J. HENDERSON 
BRENDA WRIGHT* 
TODD A. COX 
Lawyers’ Committee for 
Civil Rights Under Law 
1450 G Street, N.W., Ste.400 
Washington, D.C. 20005 
(202) 662-8600

Counsel for Louisiana Legislative Black Caucus
Additional Counsel Listed on Inside Cover



(continued from  cover)

A. LEON HIGGINBOTHAM, JR. FRANCIS GO WEN,JR.
GREGORY A. CIARICK 
DEBO P. ADEGBILE 
1285 Avenue of the Americas 
New York, NY 10019-6064 
(212) 373-3000

222 Florida St., Ste.200 
Shreveport, LA 71105 
(318) 797-6933

ERNEST JOHNSON 
12124 Sullivan Road 
Baton Rouge, LA 70807 
(504) 261-6469

Counsel for Congressman Cleo Fields

THEODORE M. SHAW 
NORMAN J. CHACHKIN 
JACQUELINE A. BERRIEN 
VICTOR BOLDEN 
NAACP Legal Defense 
& Educational Fund, Inc.

99 Hudson Street 
New York, NY 10013 
(212) 219-1900

WILLIAM QUIGLEY 
Loyola Univ. Law School 
7214 St. Charles Ave. 
Box 902
New Orleans, LA 70118 
(504) 861-5590

Counsel for Bernadine St. Cyr, Patrick Fontenot, 
Hazel Freeman, & Ralph Wilson *

* Counsel of Record



TABLE OF CONTENTS

Page

Petition for Rehearing .......................................................... 1

Certificate of Counsel ........................................................... 5

TABLE OF AUTHORITIES

Cases:

Beer v. United States, 425 U.S. 130 (1976) .......................... 3

Clark v. Roemer, 500 U.S. 646 (1991) ................................. 2

Crowell v. Mader, 444 U.S. 505 (1980) ............................... 2

Miller v. Johnson, 115 S.Ct. 2475 (1995) .............................3

Morris v. Gressette, 432 U.S. 491 (1977) .............................2

Statutes:

Section 5 of the Voting Rights Act,
42 U.S.C. § 1973c ................... ...................................passim

Other Authorities:

Stem & Gressman, Supreme Court Practice,
§ 15.3 (7th ed.) ....................................................................3



No. 95-1682

IN THE SUPREME COURT OF THE UNITED STATES 
OCTOBER TERM, 1995

LOUISIANA LEGISLATIVE BLACK CAUCUS, 
CONGRESSMAN CLEO FIELDS, BERNADINE ST. 

CYR, PATRICK FONTENOT, HAZEL FREEMAN, 
AND RALPH WILSON,

Appellants,
v.

RAY HAYS, ET AL.,

Appellees.

ON APPEAL FROM THE UNITED STATES 
DISTRICT COURT FOR THE 

WESTERN DISTRICT OF LOUISIANA

PETITION FOR REHEARING

This is an appeal from a decision of a three-judge 
district court invalidating the pre-existing Louisiana 
congressional redistricting plan, Act 1 of the Second 
Extraordinary Session of the 1994 Louisiana Legislature 
("Act 1"). The appellants Louisiana Legislative Black 
Caucus, Congressman Cleo Fields, and Louisiana voters 
Bernadine St. Cyr, Patrick Fontenot, Hazel Freeman, and 
Ralph Wilson hereby petition for rehearing from the June 
24, 1996 decision of this Court, dismissing the appeal as 
moot.



2

Although this Court’s decision apparently was based 
upon the new Louisiana congressional redistricting plan 
embodied in Act 96, and although Louisiana has submitted 
Act 96 for review, the United States Attorney General has 
not, in the time period since this Court’s decision, taken 
any action to preclear Act 96 under Section 5 of the Voting 
Rights Act, 42 U.S.C. § 1973c. Accordingly, Act 96 is not 
yet enforceable and congressional elections in Louisiana are 
presently governed by the three-judge court’s order, which 
this Court declined to vacate in its order dismissing the 
appeal. Compare Crowell v. Mader, 444 U.S. 505 (1980). 
Appellants respectfully suggest that the Court’s 
determination of mootness was premature.

The 60-day period within which the Attorney 
G eneral’s determination must be made ends on August 12, 
1996. Accordingly, the petitioners request that this Court 
hold the petition in abeyance until the Attorney General 
grants or denies preclearance based upon Louisiana’s 
Section 5 submission of Act 96.1 If the Attorney General 
grants preclearance, this petition for rehearing may be 
denied, for Act 96 will be enforceable and the appeal moot; 
a grant of administrative preclearance is not subject to 
challenge in court. Morris v. Gressette, 432 U.S. 491 (1977). 
If the Attorney General denies preclearance and objects, 
however, Act 96 will not be enforceable as law. Clark v. 
Roemer, 500 U.S. 646, 652-653 (1991).2 In that event,

1 In the absence of any stay, of course, the three-judge 
court’s order will remain in effect even if the Attorney General 
denies preclearance to Act 96.

2 A denial of preclearance of Act 96 by the Attorney 
General would not rest upon any "maximization" interpretation 
of Section 5 such as that criticized by this Court in Miller v.



3

Louisiana’s congressional districts will be based solely on 
the district court’s injunction, and reversal of the district 
court’s judgment therefore would clearly provide relief to 
the appellants. U nder those circumstances, this case will 
not be moot and this Court should consider the appeal on 
its merits. Appellants urge that their right to appeal not be 
lost because an accident of timing required the 
jurisdictional statem ent to be considered before the 
Attorney General had completed its Section 5 review 
process.

If the appellants were to delay their petition for 
rehearing until the Attorney General made her decision, 
they would fall outside of the 25 day deadline set out in 
Rule 44 of the Rules of this Court. Although there 
apparently is some authority for moving to file a petition 
for rehearing out of time if it is based upon new 
developments, see, Stem & Gressman, Supreme Court 
Practice, § 15.3 (7th ed.), the appellants have filed this 
petition within the 25 day limit out of an abundance of 
caution. They ask that it be held in abeyance pending the 
grant or denial of Section 5 preclearance.

Johnson, 115 S.Ct. 2475,2492 (1995), but upon the retrogression 
principle of Beer v. United States, 425 U.S. 130, 141 (1976). Act 
96 is unquestionably retrogressive when compared to Act 1 
(invalidated by the judgment from which this appeal was taken). 
Act 96 was designed so that all of the congressional districts 
outside the New Orleans area were no more than 33% black, 
while Act 1 included a district outside the New Orleans area that 
was 55% black. Although Act 96 is identical to — and therefore 
not retrogressive when compared to -  the plan imposed by the 
three-judge court, the court’s plan is not an appropriate 
benchmark for Section 5 purposes if the district court’s 
invalidation of Act 1 was incorrect. That, of course, is the 
subject of this appeal.



4

RO BERT B. M CD U FF 
771 North Congress Street 
Jackson, Mississippi 39202 
(601) 969-0802

Respectfully submitted,

BARBARA R. ARNW INE 
THOMAS J. H ENDERSON 
BRENDA W RIGHT* 
TO D D  A. COX 
Lawyers’ Committee for 
Civil Rights U nder Law 
1450 G  Street, N.W., Ste.400 
Washington, D.C. 20005 
(202) 662-8600 
* Counsel of Record

Counsel for Louisiana Legislative Black Caucus

A. LEON HIGGINBOTHAM, JR. FRANCIS GOWEN, JR. 
GREGORY A. CLARICK 222 Florida St., Ste.200
DEBO P. ADEGBILE Shreveport, LA 71105
1285 Avenue of the Americas (318) 797-6933
New York, NY 10019-6064 
(212) 373-3000 ERNEST JOHNSON 

12124 Sullivan Road 
Baton Rouge, LA 70807 
(504) 261-6469

Counsel for Congressman Cleo Fields

THEODORE M. SHAW WILLIAM QUIGLEY
NORMAN J. CHACHKIN Loyola Univ. Law School
JACQUELINE A. BERRIEN 7214 St. Charles Ave. 
NAACP Legal Defense New Orleans, LA 70118
& Educational Fund, Inc. 

99 Hudson Street 
New York, NY 10013

(504) 861-5590

(212) 219-1900
Counsel for Bernadine St. Cyr, Patrick Fontenot, 

Hazel Freeman, & Ralph Wilson



5

CERTIFICATE OF COUNSEL

This is a petition for rehearing from the dismissal of 
a direct appeal as moot. This petition is apparently 
governed by Rule 44.1 and pursuant to that rule, I certify 
that it is presented in good faith and not for delay. To the 
extent this petition is governed by Rule 44.2, I certify that 
it is presented in good faith and not for delay, and that 
inasmuch as the petition seeks rehearing only in the event 
that the Attorney General denies preclearance to Act 96, 
it is limited to the substantial intervening circumstance (at 
the time action by the Court is requested) that the United 
States Attorney General will not have granted preclearance 
of Act 96, so that the judgment of the court below remains 
in effect and this apj ’ ' ‘

Counsel for Appellants

July 19, 1996