Reno v. Bossier Parish School Board Brief on Reargument for Appellant

    1 07 /2 8 /9 8  16:57 ®2 02 514 6544 lljUU2USG/ilUJ

N o^SM Baad 88-406

t i f t  S u p r e m e  C o u r t  o f  t j i r  ( H n i tc t j  & t n t e 6

Janet Reno, attorney General, appellant

BofisiER parish  school board

George Price, etal., appellants

V.

Bossier Parish School Board

__BRIEF ON REARGCMENT
FOB THE FEDERAL APPELLANT

8ktk p. Waxman 
Solicitor General 

Cowwtl of Record 
Department o f Justice

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QUESTIONS pkesented  on  SEABGUMENT
thf  P“fP°“  P«>ng of Section B of tfao Votmr

s s s j s r -  “  ■ * — » » -  

S T S S U T  i s t i
pwrp0*«‘ doe« the 

S S S C I ?  b-  * •  burden of

(1)

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TABLE OF CONTENTS

Argument
L Section 5 of the Voting Rights Act of 1965 

date implementation of « new voting practice 
•Dieted with & rscislly ditcriQuottory purpose, 
•▼ an rf me n*» practice ia wit retrognuive 
la purpose or effect

II. A covered juriedietjem bear* the bunien of
proving tint its new voting practice dow
not hive t  dinmnunatcry purpose_______

Cond union___ ___________ 14
25

t a b l e  o r  a u t h o r it ie s

Cues:
AlUn v. State Bd. qf Elections, 883 U.S bU 
0888)

B m  v. UntiedStatu, 42b U A  a o r u r m " '~  
v. Smith, M8F .8urp.494(EU).C. 1m ,  

« rd  man, 459 U A 1166 (1988)
6,6,7,1^80

------- ^ vaooo; —
T’ CniuereUy qfChUmgo, 441 U.S. 977 

(1979) ______ _______________
Cfciwm ▼. Rotmmr, 501UA 880 (1991) Z Z  
City of Lockhart v. Untied States, 460 UE. 185 

(1983).
City nfPeUrtbwy v Units* Statu, 854 F. Sudd." 
1021 (DJ3.C. 1972), *fTd mem, 4)0 U.S.862 
(1978).

15
6

19,20

CityqfPimsantGrout V. VmteiStatu 479 "" 
U.S, 462 (1987)___ ______  '

City of Richmond V. United States, 422 U A  358 
(1975)

City of Rome y. United States, 446 U.S, 156 
0980).

----18,21

-----  2,18

-----2.8

Georgia v. United Statu, 411 U.S. 526 0978) ^  
GonHtion v, UghXfaot, 364 U A  339 (I960) ___

7, 12,18
18,19 

8

Oil)

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IV

Cmae— Continued:

Goodyear Atomic Corp. v. Miller, 486 U.S. 174 
(1988) .-------| L___  ___

Grogan v. Gamer, 488 U.S. 279 flflQri 
Hunter v. Underwood, 471UJ5. 222 (1986)___
* 5 * 7 *  Monterey Count*, 119 & C t 698

UW9) .........................  ...  .
Metropolitan Stevedore Co. v. Rambo, 521 UJS 

121(1997).

Page

15
21
8

MoCmn v. Lybncnd, 485 U S. 236 (1984) _

M( m ^ tU V VnUmi StaUt' 342 u,s-m
Mvacarello v. United State*, 524 U.S. m  

(1908) -- ______
O’Ntol v. McAnineh, 518 U.S. 432 (1995?." 
Roy** v. Lodge, 458 U.S. 618 (1982)

—  21 
—  9,15,18

”  '  ̂>v« U4w .
•Ŝ C erpfoia v. KaUwnbock, 383U.S.SOI

15

IS
21
6

JW ftip y  v. Gmglee, 478 UA 80 (1966) —  
V\Uayt  of Arlington Hngbte v. Metropolitan 

» " • * *  Cwj». 429 U A  252 (1977) ,
WMfcmston v. ZfevU, 428 U.S. 229 (1976). 

Constitution, statut* and regulation*
U.S, Const.;

AmtncLXlV

7.8,18 
■ 4.5

Equal Protection GIiu m , 
Amend-XV

Voting Rights Act of 1065.42 UAC- 1973 
f 2,42 U.S.C. 1973.
5 2,42 U A a  1978 (1970).
6 2(»), 42 UAC. 1978(a) _ 
# 2(b). 42 U ^ .a  1973(b) _
8 8(e), 42 U.S.C, 1878a(c) .. 
*4,42 U.S.C. 1978b
9 5.42 U.8.C. 1973c,

-  3,8,17
----  6
8.8,10,17

4,5,19,20
.... 3-4
—  4,5

5
*—• 8,4

4,20
ptutim

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«
V

R*8«l»tionB—Continued:
28 C.F.R. Pt. 5i;

Section 5t8  _ _
Section 51.27_____
Section 61417(a).....
Section 5L28 _J
Section 5L28(*)_____
Section 5X.28(bJ____...
Section 5L28ffX8)___ ”
Section &ISJM______
Section 51.87(d) —
Section 51.52(a)
Seetka £L6fi(bX2) (19B0)
Section 6UT(b)______
Section SL57(c) ___
Section 5JJB(b)______
App. ----------------------- -

Mwcelieneoue:

4
S3
28
23
28
23
24 
24 
24 
22 
19 
22 
£4 
28
4

HI Cong. R«c. 0966): 
p. 9794______ ____
P. 20.7BI! _  |m . «

11$ Cong. Roc. (1970)- 
P-5818 ____

---------4

D.5623 --------------------- ----- 16
pp. W77-6678 .. _ --------  16
P- 6184----------------------- 16

128 Cong. Sec. (1982):
P-13J88___
p  isjeas """

--------  16

-------- 12
P-1K208 _______

68 F ed  R e* 24,108 (198®
-------- 17
-------.  12

H-R- Rep. No. 488,8Wj Cong., 1st Sew. (1966) —----- 19

5!*?' j?®P' 5Jft S97, Wb1 Sew. (1969)__
10,11,16

H.R. Rep. No. 196,94th Cong., le t Scm. 0B7S)___ i s  -ID
- —  12,17

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VI

«»eellaneoitt—Contiauad;
S. Rap. No. 182, m  Cong., 1st Sean. (1965): 

Pt. 2 _____Pt.2 „ 
PU 8

............—  t T- | TI I I I  |

s. Hep. No. 236,94th Cong., i*t Seat. (1976).___ 
S. Rep. No. 417,97th Cong,, 2d Sen. (1962) ■
Suhsanm. on the Constitution of the Senate

Comm, on thu Judiciary, 97th Cong., 2d Sen., 
A ct Report m  & m z  (Comm. 

PnntlSflB)^
Vottng Rights: Hearings on HR. CiOO Before 

ubcomm. N(l £ of tfo Uoits$ Comm, on tht
Q1 w *ot ocia. (iwoj __ _

Graham,Jrr sacral Practice and Procedure (1977) _ _ _ _ _

Page

------ 16
4.9,10,11

-----  12
12,17,19,88

~  17

10,11,15 

15

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t
3 n  3 « W * n w  C o r o t  o f  t f i r  ® n i t e b  & t a a g

N o. 98-405

Janet Reno, Attorney General, appellant

V.

Bossier Parish School Board

No. 98-406

George Price, etal., appellants

v.

Bossier Parish school Board

w w ? ? 5 J ’̂ JSA H G U M E N T  
FOB THE FEDERAL APPELLANT

1  * OP THE VOTING SIGHTS ACT OP
18®5 BASS IMPLEMENTATION OF A NEW 
VOTING PRACTICE ENACTED WITH A RA- 
^ALETDIBCSIMXNATOBT p u r p o se , e v e n  IP 

new  pr a c t ic e  IS n o t  r et r o g r essiv e  
in  pu r po se  ok e ffe c t

°r/i!? U!,0pemilg ■“ * **&  bn'eft, we explain that 
Se«ion 6 of the Voting Rights Act of 1965 (Act) 42 u  q r
lo w *  pw fcibte. a ,  im p ten am u tio , by  ,

(1)

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f .  B,fW VOt* K Prtctlce “ Uct8d ^  the purpose ofJ» :as2sat2s«s:
<* » minority group. This conclusion 

followi from the language of Section 5 (Opening Br. 18),1 the 
egi&Utive history of its  enactm ent in 1965 and its  

^ b n e n t s  in 1970,1975, and 1982 (id  »t 20-84), and this 
L-ourtS decisions (id. at 24-29), eapeeialJy City o f PUtuant

S U T VJ t o f l f S ,n  ̂  £ £  462 (1987); * Uj6w T‘ Smith•
( 1 9 8 8 ) - ' l882)’ ***  mem*> 458 U.S. 1166 

Richmond v. United States, 422 U.S. 858 
(1076), To those points we add the following;

A- The text of Section 6 establishes that a new vetin* 
practice that has a diacriininatory, albeit nohnetrogreasive

^ 2 ^ ,i 3 S beimi>l8T te<L S^ 5 P « ^ t e S t a  
0,87 m,ptement •  » « " voting practice if 

£ 2 2 -  * dwd*r «Q*T Judgment from the United States

T 0** “ d "« ■ » *  tave the « « *  of 
dwymg or abridging the right to vote on account of ™  nr

ahrid”-̂ 42 H’8'0 ] ! 978*' A “PnrP°8e ’  * '*  of denying or 
n ^ » t to vote on account of race or color”

phurJy includes a purpose to perpetuate an existing situation 
******* *  denies or abridges black citizens' right to vote 
** i to n o t  farther Hack m tm K u m m . F « « j L T l

b lZ k  Pr3Ct!Ce !ft6,,ded 10 P ™ * *  * *  registration 'of 
had Prev,0usly *»•* prohibited from

E L " ” ?  aeT blwk "* * ■ * * * »  to the minimum 
PO bio, would have the purpose to deny or abridge black

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8

partidpation further. Such ft voting practice could not be 
precleared, for it would not be a practice that “does not have 
the purpose * * * of denying or abridging the right to vote 
on account of race.”

None of that language suggests « limitation barring pre- 
clearance only of new practices with a retrogressive purpose 
Appellee suggests (Appellee Br. 18) that the limitation to 
retrogression is found in the s ta tu to ry  ph rase  “denying ©r 
abridging." A reading of “denying or abridging" as limited 
to retrogression  is  untenable, however, In light of the struc­
ture of the Voting Eights Act as a whole, including other 
provisions where the same phrase is employed but where no 
limitation to retrogression may be found.

For example, Section 3(c) of the Act. 42 U.S.C. 1973a(c), 
establishes a predearanot prooedure .similar to that in Sec­
tion 6 for jurisdictions where a court has found a violation of 
the right to rote guaranteed by the Fourteenth and Fif­
teenth Amendments Justifying equitable relief, Under Sec­
tion 8(e), the court may order such a jurisdiction not to im­
plement any voting change unless the court or the Attorney 
General concludes that the new practice “does not have the 
purpose and will not have the effect of denying Or abridging 
the right to vote on account of race or color.” 42 U.S C 
1973a(c). Yet Section 8(c)’s bar on implementation of new 
voting practices that have a purpose “of denying or abridg­
ing the right to vote on account of race or color" dearly is not 
lmiited to changes with a retrogressive purpose? if it were so 
inmted, then a jurisdiction that was adjudicated to have 
engaged in intentional discrimination could simply imple­
ment a new voting practice with the intent to perpetuate the 
*une discrimination.3 Similarly, Section 2 of the Act, as

. ,S* ' ***■ *•* No- 89th Cong., let Seta. 8S (1865) (Section 8(0 
“ **** o 'u rn  against the srectian of new endtaervu* dserittins- 
toxy voting barrier* by State or politic*! tubdjririoM which have been

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origimlly enacted, see 42 U.S'.C. 1973 (1970), prohibited the 
application of any voting qualification “to deny or abridge 
the right of any citizen of the United States to vote on 
account of race or color " Yet neither Congress nor this 
Court has ever suggested that Section 2*8 prohibition
voting practices that “deny or abridge the right ♦ • * to
vote on account of race or color” was limited to retrogressive 
voting practices.*

found to hav» cfc«erijoia»W,)i 8. Rep. No. Utt, Wlh Cong., l i t  B«k  p t 3, 
et to  (1W5) (similar); u i  Cong. P ec 10,728 (IMS) (rsm irki or Sea. 
lyd iafi) (Section 3(c) lined at state prsetioss “designed to limit exercise
of the in an egert to fleoe the ppsaent Negro-iiMte tegiatnitioo
diapanty enatml by put violations of tbs 18tb eneodniean. Tbs Pt 
psrtoest of Justice applies both die purpose and effect prongs of Section

witk position on Section a, »<*., as 
prehUBtmg enforcement of new voting practices that ha™ » dacrtaiBa- 
tory purpose (whether or not retrogressive) or will have a rsUoorsaave 

SaefflCJi.SlA
8 8met its anandmant in 1982, Section * has prohibited the enforce- 

nant of any voting practice “which recruits in a denial or abhdgenwnt of 
th« right • * • to vote an account of nee or color.” 42 U£.C. 1973U) 
(1994). This Court has never suggested that the phrase “denial or 
abwdgaataat^rn uncuini 8ocdop g rafters to retriigrcaaion.

Althmvh Section 2 and Section 5 have some language in common, the 
two pxoriataH do operate quite dUXsrantly in Sevan] respects. Pint, 
“•ctioo 5 applies only to new voting practices enacted ar administarad in 
e«tam States and political subdivision* that fall within the coverage 
fcroula* of Section 4 of tha Voting Bight* Act, sea 42 U AC. 1973b; 28 
C J.R. Pt. 61 App, Ivp tz  v. Mcmitrty Comfy, 119 & Ot 698,69? (1999) 
whereas Section 2 applies to all voting practices, old and new, and to the' 
entire country. Second, Seen on 6 prevents a covered jurisdiction from 
implementing a new voting practice unless it has been predeand by the 
Attorney Gmaers) or the United States District Court for the District of 
Columbia, whereas Section 2 places no obligation on the part of a or 
any political unit to obtain prodearance of its voting prartitta. Third, a 
plaintiff chaDaagmg a voting practice under Section 2 has the burden of 
provwgltt urrshdity.saB TkomOwrg v. Otnpfet.47B U2S. 30,46, 51 (1986), 
wbareaa Section 5 places the burden on the covered jurisdiction to show

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Appellee’s argument is based fundamentally on a serious 
misapprehension of what this Court decided in Berr v 
£/nttod Stotts, 426 UJS. 180 (1076). In Beer, this Court did 
not decide that the phrase “denying or abridging the right to 
vote, as used In Section 5, refers only to retrogression- Bter 
held, rather, that the term “effect," as used in Section 6, is 
limited to precluding enforcement of new voting practices 
that further impair the voting strength of minorities. S ee id. 
a t 141 ("It is thus apparent that a legislative reapportion­
ment that enhances the position  of racial minorities with 
respect to their effective exercise of the electoral franchise 
can hardly have the 't f fta ' of diluting or abridging the right 
to vote on account o f race within the meaning o f $ 6.")
(emphasis added).

that pnolMiance to warranted, see pp. 14-25, it&v. Fourth,» «howtng of 
I'rtmat'SMion (u  that concept has bwa developed under tbs effect prong 
of Section 6) it neither necnaary nor luftdeot to •  violation of
Section 2- At noted above, a violation oTSsedoc S u sy  be established by 
■ H e w i n g t h e  challenged practice -merits in" tfamdenial or abridgment 
« the right to vote on amount of n a  or oolcr, and that “m ult*" standard 
»  met if the plaintiff abowi that the-pofitital processes lading to n o rit»  
ticc or election •  • • arc not eouaflv open tn v»y
Bee 42 U.8.C. and (bl The -results" standard of Sect ion ? im not 
the aims as retrogreuiaa; a voting change may violate Section t  but not 
csum retrogression, and vise » c »  Finally, ainee its «„««<«*■» in jany 
8eedim 2 ha, not required that the plaintiff allow that the jurisdiction 
***** with discriminatory intent. Bee TAombwrg v. O itgln, 478 U.S. a t 
44. Thoa, under Section 2, a plaintiff challenging a voting practice may 
prevail if he show* that the challenged practice violates the “results” 
standard (whether or not the practice is intentionally discriminatory, and 
whether or not it i* rotrogtrarivej, whereas under Section 5, a covered 
juriadictian obtains pradwaaneo If it thews that the new voting practice ii 
not intentionally discriminatory, and will not taxre a retrogressive effect. 
None of the different** betwoen fiction 2 and Section 6, however, turns 
«n poMibio diffHcaoee in the meaning oT "deny or abridge the rteht to 
vote” aa used in the two SertiansL *

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6

As we have explained (Opening Br. 2^31), the Court's 
interpretation of “effect” in Section 5 in B u r  reflected 
concerns about how far Congress intended Section £'a effect 
prong to reach beyond the Constitution itself. The Court 
observed that, under the district court’s application of 
Section 5 in B u r  (which this Court rejected), Section 5’s 
effect prong would, as a practical m atter, have been trans­
formed into a statute prohibiting all new voting practices 
with & disparate impact on minorities. See 425 U.S. at 136. 
137 A n-S; tf. id. a t 148-144 (White, J„  dissenting) (arguing 
that Section 5 required “new electoral districts [to] afford 
the Negro minority the opportunity to achieve legislative 
representation roughly proportional to the Negro population 
in the community”). Almost simultaneously with B u r, bow* 
ever, the Court concluded that proof of a violation of the 
Equal Protection Clause of the Fourteenth Amendment 
requires a showing of discriminatory intent, and that the 
Clause does not prohibit state action with only a dmpavfa 
impact on racial minorities. See Washington v. Davis, 426 
U.S. 229 (1976). The purpose prong of Section 5 raises no 
such questions about Congress’s intent to reach beyond the 
Constitution, however, because the purpose prong reaches 
only new voting practices enacted with invidious intent, and 
therefore precludes enforcement only of new voting prac­
tices that violate the Constitution iteelf. C l Ckisom v 
Rounsr, 601 U.S. 380, 41M17 (1991) (Scalia, J., dissenting) 
(observing that “intentional discrimination in the election of 
judges, whatever its  form, is constitutionally prohibited, and 
the preclearance provision  of 6 5 gives the G overnm ent a
method by which to prevent that**).

B u r  did refer to Congress’s "deeiref) to prevent States 
from ‘undoBug] or defeating] the rights recently won’” by 
black citizens as a basis for its holding. See 426 U.S. at 140 
(initial brackets added). The Beer opinion did so. however, in 
the context of explaining why Congress had required

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covered jurisdiction* to dem onstrate to  the A ttorney 
General or the district court “that the [voting] change does 
not have a discriminatory ct,” -ibid, (emphasis added)— 
not why Congress had prohibited enforcement of new voting 
practices with a discriminatory purpose, which, the Court 
noted, was not at issue in that esse, see id  at 186 n.7* 
Farther, the Beer opinion expressed no doubt that even an 
ameliorative change might be denied preclearance if it “so 
discriminates on the basis of race or color as to violate the 
Constitution," id  at 141; see id  a t 142 n.14 (“I t  is posaihle 
that a legislative reapportionmeot could be a substantial 
improvement over its predecessor in term s of lessening 
racial discrimination, and yet nonetheless continue so to 
ducrmimUe on ths basis of race or color as to be 
unconstitutional") (emphasis added)/* 4 * 6

4 Moreover, m tbe Court explained in City qfJlomt v. UHtUd 
446 U-S- 1S6, 177 (1980), 8eettou ft* prohibition against implementation of
•voting changes with a retrogressive affect reaches thou situations wbare, 
even though iaridioos intent night net be readily disowned, there is 
nonetbvlBM •  daumnatiabir “risk of purposeful ducrtnUnatjan" by a 
covered jurisdiction.

6 U ia couise m e  that Section 5 requires predaaranae only of new 
voting pruetioaa, but that point does not suggest that Congress 
to bar predeeranee only or these new practice* that ara designed to 
w om n the electoral politico of minorities Bather, Congress required 
preeiewanco of new voting practices because it wpa eoneeread that 
covered jurisdictions might employ new discriminatory practices to 
frwrtrete tk« operetta of tbc Voting Bights Act to the way that they bad 
previoualy frustrated judieud decrees declaring discriminatory testa and 
daviaas »o be invalid. Bee South Carolina v. KhmanSoeS, 38K U.S. SOI, 38a 
(186S); Alien v. Statu Bd. ofElsetum, 883 UB. 544, H7-6KB (1889). In
addition, if tha A«t had raquwd pnsckarencc or «u State v o tt^  practices,
oven those already in tore* at the time the Act was passed, it would have 
caused a much more serious intrusion ao state interests, for it would have 
required each covered jurisdiction to submit its entire election code to the 
Attorney Canarel or the district court for review and mlgftt kjVe 
suspended elections in those juriacBctiona until such a review could have

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Appellee objects (Appellee Br. 17) that, under our sub- 
mission, the purpose end effect prongs of Section 5 are not 
coterminous; a covered jurisdiction's purpose to accomplish a 
particular “denfial) or abridgement} [of] the right to vote on 
account of race or color" would require denial of predear- 
ance, even though a voting change that merely had that 
incidental effect could be predeared, if it were adopted with 
a racially neutral purpose and were not retrogressive. I t is a 
familiar  principle, however, that "acts generally lawful may 
become unlawful wh«n done to accomplish u  unlawful end.” 
City of Richmond v. United States, 422 U S. 358,379 (1975) 
(brackets omitted). That principle has played an important 
role in this Court’s jurisprudence construing the Civil War 
Amendments.6 It is not surprising, therefore, that a redis- 
tncting plan adopted for the purpose of preventing improve­
ment in blacks’ voting strength would violate the Constitu­
tion and would be denied predearauce under Section 9*6 
purpose prong—even though the same redistricting plan 
would not be unconstitutional and would therefore not be 
denied preclearance if it were adopted for valid, racially 
neutral reasons, and if it had the ineidentalf.nanretr©greasive 
effect of limiting improvement in racial m inorities’ voting 
strength. See id  at 878 (emphasizing that it may be “forbid­
den by I & to have the purpose and intent of achieving only

bean completed For tho taint muon, such a requirement would probably 
haw b—ft tnunwitimMo.

c See Hymitr V. Undmnod, 471 UA. m . 232-288 (1986) (eves if 
dmfrumMsommt of pemont twmeted qf crim e tnvnlttnp mural 
would to valid if enacted for a larnily neutral reason, radal motivation 
Madarad it iovabdlj »o^r* ▼. lodge, 408 UA 613. 617 (1SB2) (lattentting 
that, although mnhiroember districts are not uaerastRutianal per ae, they 
arc invalid if "oososivod or operated aa purposeful devices to further radii 
diaoinBMtim”); GamtUion V. Uffh^oot, 864 UA 389, 847 (i960) (radal 
motivations invalidated city boundary, changes, even it those ohangss 
might be penmsnhle if adopted fer neutral masons).

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what is a perfectly iegil result under that section,” because 
an official acUon "taken for the purpose of dwcriminating 
against Negroes on account of their race has no legitimacy at 
all under our Constitution or under the statute”).

B. The legislative history of the original enactment of 
Section 5 and its three reenactments confirms that Congress 
intended to bar implementation of all new voting practices 
that violate the Constitution 'because of their purpose to 
deny or abridge minority dtuens’ right to vote, and not just 
those changes intended to erode further the electoral 
portion of minority voters.

We have explained (Opening Br. 20-22) that Congress 
enacted Section 6 in large part to overcome ofBcia) 
resistance to the registration of black voters, ia particular 
ingenious state efforts that had successfully eroded the 
effect of federal court decrees striking down state voting 
praetioee p reven ting  the registration of blacks.7 Congress 
was concerned that covered jurisdictions would adopt new 
dev«»  freeze the existing disparity in voter registration 
between blacks and whites. See H.R. Rep. No. 439, 89th

1W6 (196S* S‘ ReP No. 162,89th Cong., 1st 
Seas. Pt. 3. a t 15-16 (1965) (joint views of 12 members of 
S e c ^  Jndiciary Committee); see also 111 Cong. Rec. 9794 
(™ >  (remarks of Sen. Hart) rSection 5 would enable the 
Attorney General and the courts to insure against changing 
the laws since November [1964], which would have the effect 

perpetuating discrimination.”) (emphasis added).
Attorney General Kataenbafch's summary' of litigation 

under the Civil Rights Act of 1957, which was Influential in 
w « « n g  passage of the Voting Bights Act, see SmUh 
Carolina v. Kadembach, 388 U.S. 301, 31^31$ (1966), em-

8° T ?  ttat be inter.^ •ta d  tth g h t «f iw propjqrUqbc jrbpcm aafl tbs tutorial] «n>eriau» 
vtJteh it itdfaeto." MtC*m v. Lyinmd, 406 U.S. 286,248 (IBM).

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10

p h asu ed  th a t th e  a«w  leg isla tio n  w as needed b eeatu o  
d esp ite  th e  Justice Department's “m ost vigorous e ffo rts in  
tiw  co u rts '’ to  saeure block citizens’ rig h t to  vote as g u aran -
teed by the Fifteenth Amendment by challenging discrimi­
natory practices inhibiting black voter registration, 'there 
has been case after case of slow or ineffective reL«f.” Voting 
«W«s. Hearings on H.R. 6400 Before Subcomm, No. S o f the

fa °mnLJ >1L ^ t  JudicUt7*> 8eth Cong., 1st Seas. 9 
(1965) (House Hearings). In summarizing the unsatisfactory 
outoom* of the case-by-case approach and the need for Sec­
tion 5*s predearance remedy, the House Judiciary P m mit 
tee stressed; "The judicial process affords those who are 
determined to resist plentiful opportunity to « « 8t. Indeed 
even after apparent defeat resisters seek new ways and 
means of discriminating. Barring one contrivance too often 
n*s caused no change in result, only in methods.” H.R. Rep
No, 488, at 10; accord a  Rep. No. 162, R  3, at 6.

Especially in light of the evidence before Congress in 1965 
that tests and devices in covered jurisdictions had been 
highly effective in blocking most blank votar participation, it 
is aunply implausible that Congress limited Section 5’s pur­
pose prong to bar only new voting practices intended to 
make m atters even worse. Congress was Informed for 
sam ple, that, In Wilcox County, Alabama, there were zero 
blacks registered to vote (out of a Mack voting age popula- 
tion of 6085 which was much larger than the white voting 
age population of 2647), and that similar, exceedingly small 
numbers of black citizens were registered to vote in numer­
ous counties where discriminatory tests and devices were

tS S F Z J Z T  ? ep' ,No- 1B2* R - s - *  <M 5; House
w T *  ;  r ***logic rf  aPPeUee's argument,
Section 6 had little if any role to play in those counties,
because it would have been difficult if not impossible to

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11

cause further dimimshment in the voting strength of black 
citizens there.*

The relevant committees, moreover, plainly peroeived the 
function of Section 6 as enforcing the commands of the 
Constitution’s prohibitions against official racial discrimina­
tion in voting. The House Judiciary Committee summarised 
Section 5's operation by stating that a covered jurisdiction 
“will not be able to enforce [a new voting practice} without 
obtaining a declaratory judgment that lit] does not have the 
purpose and will not have the effect of denying or abridging 
rights guaranteed by the 15tb amendment.” H.R. Rep. No. 
439, at 28. Similarly, the supportive members of the Senate 
Judiciary Committee stated that “so long as State laws or 
practices erecting voting qualifications do not run afoul [of] 
the 15th amendment or other provisions of the Constitution, 
they stand undisturbed.” 8. Rep. No. 162, Pt. 3, a t 18. No 
suggestion was made of any limitation to  new voting 
practices intended to cause further encroachments on such 
constitutional rights.

The legislative records of the reenactmants of Section 5 
also contradict appellee's submission that Congress intended 
Section 5 only to address retrogression of minority voting 
strength. When Section 5 was reenacted in 1970 and 1975, 
the relevant oongreemonal committee* emphasised that the 
predearanoe remedy remained necessary because, although 
black citizens were no longer subject to absolute of 
their right to vote through registration tests, covered juris­
dictions had attempted to preempt increased blade voting

wnftn we Voting Right* Act was adopted, only 6.4ft of of 
**C U1 aut* *  MiwwvF w e  regtomd to vote, wbwvsc 

***, of whites of voting age in that state weir registered to vote. J W  
H«unv*82. Appellee** argument unpfcea that Sectionb was intended to 
^ y p ^ ^ o f M ^ r e g u t r ^

tbt" eJ wT prtWlo,s ln)»nrt»d o f  would d&Btuoui a huther dlmlnui)
ment in Meek voting strength.

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12

strength by adopting at-large elections, increasing filing 
fees, abolishing elective offices, and extending the term s of 
white incumbents. See H.R Rap. No. 397, Plot Oo*»g, la t 
?“ " 7 “ 9“ > *  M .  M *  Cong.,
(1975). In 1975, both the Senate and House Judiciary Com­
mittees stated with approval that it was "largely Section 5” 
that had been responsible for gains in minority voting 
strength, see id  at 1* H R. Rep. No. 196, 94th Cong., 1st 
bess. 11 (1975)—an observation inconsistent with appellee's 
submission that Section 5 was intended merely to prevent 
retrogression from gains that minorities might have some­
how achieved through other means. See also City o f Rome v 

n iud  States, 446 U.S. 156, 182 (1880) (observing that Con- 
g r e j  reenacted Section 5 in 1975 to preserve gains achieved 
and to promote further amelioration of voting discrimina­

tion and “to counter the perpetuation" of pervasive voting 
discrimination) (emphasis added).

When Congreas comprehensively reviewed the enforce- 
m enthietory of Section 5 in 1982 and reenacted it again, the 
definitive Senate Report did not describe preventing retro ­
gression as the sole function of Section 6. That Report 

âct’ ***** Section 5 had been “designed to insure 
that old devices for disenfranchisement would not simoiv be 
replaced by now ones," S. Rep. No. 417, 97th Cong., 2d Sees.
6 (1982), and that “Continued progress toward equal oppor- 
tum ty in the electoral process will be halted if w e a p o n  
£ *  (in Section 5) now," id. at io.
H a U w f * ' R ec 18,288 (1982) (re» » rk8 of Sen.Hatch) (favoring continued preolearenee because, among

thine*’ " V * "  wouid argue that all traces of th f 
diaerinmiaxory hiatory that ousted In some of the covered

T t  ? ?  *  <* 13,293 ( n o t * .Q fS e i'.C r^aley) tcbw rytot that -[O h. gata, to minority 
^w torai Pjxncyrtm n actoavod throueh the p m ta rtc a . £  
(Section 5] reflect the success with which it has been

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13

implemented'’ end "[tjhe strength of the set as originally 
adopted lay ip its power to proscribe discriminatory prac­
tices as they evolved").

C. These materials demonstrate that the purpose prong 
of Section 5 has been fundamental to dismantling the 
massive edifice of official racial discrimination in voting that 
existed in 1966, has been equally important in preventing the 
use of new discriminatory devices to perpetuate that dis­
crimination in other guises, and wae never intended to be 
limited to now voting practices that would m atters 
even worse (especially not worse than they were in 1965). 
And as we have previously explained (Opening Br. 82*33), in 
34 years of administering Section 5, the Justice Department 
has never limited its “purpose” analysis in the administrative 
preclearance process to an examination of a covered 
jurisdiction's “retrogressive purpose."* Appellee’s submis­
sion, however, would reduce the purpaee prong of Section 5 
to a trivial m atter, limited to preventing enforcement of 
those voting changes that are intended to cause retrogres­
sion but are destined to fiul in doing bo (since any new voting 
practice that actually “will * *. ♦ have the effect" of retro- 
greaaion will be denied predasranoo under the effect prong). 
The Court should reject a construction of Section 5 that 
would render its  purpose prong bo imrigrrifi/»«»»♦ Qf MiU 
carello v. United States, S24 U.S. 126,186-187 (1998) (reject­
ing narrow construction of "carries" in statute punishing one 9

9 Although the Justice Department objects to free r than l f t  of the 
voting «UngM mtbuteod tar ped eam ee (see pp. 22-23, iatfra), most of 
U» Objection* the Department hat. made on the bans of purpose have 
“» «  *• ‘“wWOgreoaive voting changes. Prom January 1,1900, to July 
23, 1999, the Department received 42,506 preclearance suhnuaion* end 
wtw’pobed objections to change* in 967 of those submissions. H on.’than 

of those submissions were interposed because, even though the 
«»•»*•» were w-*ot*ogw**vc, there was reason to believe to st U» 
changes w an enioed with a dismminatoiy purpose.

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14

w ho “uses or carries” « firearm because* having adopted « 
namiw construction of “uses" Court could not "also construe 
carrfiesT narrowly without undercutting the statute's basic 

objective" and leaving  a gap in coverage that we do not
bolieve Congress intended”).

n . a  c o v er ed  ju r isd ic t io n  means  t h e  b u b > 
d e n  o p  pr o v in g  t h a t  it s  n e w  v o t in g
PRACTICE DOES NOT HAVE A  DISCRIMINA­
TORY PURPOSE

♦w n  ^SWative history of Section 6, as well as
this Court s decisions, establish that jurisdictions covered by 
Section 5 bear the burden of proving the absence of a 
awennunatory purpose in their new voting practice#.

5 Provide* thati whenever a covered juris- 
diction shaD enact or seek to administer a new voting prac­
tice, the jurisdiction “may institute an action * * • for n 
dedaratory judgment that" the new voting practice does not 
have a prohibited purpose or effect. 42 U.8.C. 1973c “fUTn- 
leaa and until the court enters such judgment" in favor of the 
covered jurisdiction, the new voting practice may not be 
enforced- Ibid. The statute alternatively permits the juris­
diction to submit the new voting practice to the Attorney 
General for preelearance. and provide that a new practice

V  ;  * [M W  * * * * *  « «  been 
. 10 the A«oro®y Geuiral and the Attorney 

General has not interposed an objection within sixty days 
after such submlSBlan." Ibid

Under the litigation framework established by Section 6 
the w v^ed jurisdiction must initiate the preclearance action 
“  court- not enforce ito new voting chances
“f *  * ^ ,on ^ . resolved- The covered jurisdiction is
placed in the position of a plaintiff in a civil action who 
requests that the court remove a legal impediment applies- 

e to it. Traditionally in dv2 litigation, the jilefatwr bears

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15

the burden of proof in at least its primary sense, viz., the risk 
of nonperauasion. See 21 Charles Alan Wright & Kenneth 
W. Graham, Jr., Federal Practice and Procedure $ 6182, at 
553-557 (1977). Congress is presumed to be aware of such 
well-established legal principles when it enacts legislation, 
we Goodyear Atomic Corp. v. MiUer, 486 U.S. 174, 185 
(1988); Cannon v. Univereity o f Chicago, 441 U.S. 677, 699 
(1979), and not to deviate from them absent express 
indication in the statute, see Marinette v. United States 342 
U.8. 246. 261-262 (1952). The tent of Section 5 therefore 
places the risk of noopersuacon in a preclearance action on 
the covered jurisdiction. Bee McCain v. Lybrand, 465 U.S 
236,257(1884).

2. The legislative history of Section 5 pukes abundantly 
dear that the covered jurisdiction bears the burden of proof. 
The placement of the burden of proof on covered juris­
dictions v u  a aignifioant focus of opposition to the Voting 
Bights Act. During legislative bearings on the Act, Attor­
ney General Katsenbscb was questioned several taw* about 
the burden of proof and eaeh time confirmed that it would He 
with the covered jurisdiction. House Hearings 87,90,83,85. 
Opponents of the bill criticired th* prvcleamuuw provision 
because of its •‘presumption of the irregularity of State 
voting laws, and the rules, regulations, and resolutions of its 
subdivisions" and its requirement that a covered Jurisdiction 
absolve itself of an automatically presumed guilt." H.R 

Rep. No. 439, at 43 (views of Republican Judiciary Com. 
"dttee members); see also S.'Rep. No. 162, Pt. 2, at 29 
(statement of Thomas H. Watkins, submitted by Seas. 
Eastland. McClellan, and Ervin, criticising preclearance pro­
posal bemuse covered jurisdictions must “SSCUreQ an 
adjudication, with the accompanying burden o f proof,” that
new voting practices would not discriminate) (emphasis in 
original).

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During Congress's consideration of the first extension of 
Section 6, several proposals were made to shift the burden of 
proof to the Attorney General. The House Judiciary  Com­
mittee rejected such proposals and observed:

The decision [in Alien v. Stale Board o f EUetUmt, 80S 
U.S. 544 (1969)] underscores the advantage section 5 
produces in placing the burden of proof on a covered 
jurisdiction to show that a new voting lew or procedure 
does not have the purpose and will not have the effect of 
discriminating on the baste of race or color. ’ * * Fail­
ure to continue this provision of the act would jettison a 
vital element of the enforcement machinery, i t  would 
reverse the burden of proof and restore consuming 
litigation as the principal means of assuring the equal 
right to vote,

H .lt. Rep. No. 397, at 8. Members of the Senate, whether 
supporting or opposing the extension of Section 5, similarly 
understood it as placing the burden of proof on the covered 
jurisdiction."

When Congress reenacted Section 5 in 1975, it 
made dear that it intended the covered jurisdiction to 
shoulder the burden of proof in both predearance in 
the district court and in the Attorney General’s adminirtra-

"  116 Cong. 6518, *828 (lSTO) {auteownt of u a  o u te r s  of
Senate Judiciary C W nttea favoring cwtannon) (noting Oat "Itjhe

?vtvasc tad eBeet«  «  e*a^new ntri body wwteng m  z w u *  by
Swute Judiciary Committee because it “would ih lft the all importsnt 
burden of proof - to *  now w u  m  th . j-w Boti™  >««kwg to lmpleu*nt 
tte  new p n e ti*  « -procedure-); id  at 5677-5678 (mmufca by Sens. Ervin. 
Alim, and Tower); id. a t 6164 (remarks by Sen. Fong) (sown* "audai 
features of atroagth oanteined in section 5" aro that “the burden of proof is 
Pteed upon tbs jurisdiction"; “(tjhow who know the Uw «w proendoro bam
and what motivated itapaaaagensttt eqmelbrwanl and eaplsinit").

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17

tive review oT voting change. The House Judiciary Com- 
nutiee explained that Section 5 "presumes that the change 
has the purpose or would have the effect of discriminating on 
the bam* of race or color. • • * If no evidence Is submitted 
to overcome the presumption the District Court or the 
Attorney General must disapprove the change." H.R. Ren 
No. 196, at 58. *'

The Senate Report accompanying the 1982 extension of 
Section 6 shows that Congress again determined that the 
covered jurisdiction's burden of proof is central to enforce­
ment of the Fourteenth and Fifteenth Amendments. In 
describing the proper operation of Section 5's predearnnce 
provisions, the Senate Report stated that “[tjhe Attorney 
General or the [United States District Court for the District 
of Columbia] was required to'withhold approval until the 
submitting jurisdiction shows that the change will not be 
discriminatory in purpose or effect. This provision was 
designed to insure that old devices for disenfranchisement 
would not simply be replaced by new ones." S. Rep. No. 417, 
at 6. The Subcommittee on the Constitution described the 
operation of Section 5 in the same way: “A jurisdiction 
seeking to preclear a voting change under rastum 5 has 
burden of ahowing • • ♦ that the voting change under
review ‘does not have the purpose and will not have the 
effect of denying or abridgingH the voting rights of a 
covered minority group.” Subcomm. on the Constitution of 
the Senate Comm, on the Judiciary, 97tb Cong., 2d 8ass., 
Voting Right* Act- Report on S. 1992, a t 52-58 (Comm. Print 
1982). Legislators who opposed the extension of the Act in 
1982 criticized Section 5 specifically because it placed the 
burden of proving the "absence of discrimination" on covered 
jurisdictions. See S. Rep. No. 417, at 220 (minority views of 
Sen East); 128 Cong. Rec 13,292 (1982) (remarks of Sen 
Helms).

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18

S. TOs Court hia consistently held that Section 5 places 
the burden on the covered jurisdiction to prove the ibeanoe 
of a discriminatory purpose. City o f Pleasant Grow, 479 
U-S. at 469; see J.S. App. 34*35*, 38a {Bossier f); McCain v. 
Lybrxmd, 465 U.S. at 257; City o f Rome, 446 U.S. at 187; 
Georgia v. United States, 411 U.S. 526, 538 (1973); South 
Carolina v. Katzenbach, 38S U.S. at 3S5; see also City o f 
Petersburg v. United States, 354 P. Supp. 1021,1027 (D.D C 
1972), affd mem, 410 U.S.962 (1973).

In those decisions, the Court h u  id en tified  several 
reasons why Congress decided to impose the burden on the 
covered jurisdiction*. In South Carolina v. Katienbach, the 
Court explained that, because Congress had found case-by- 
case litigation to be inadequate to combat persistant dis­
crimination in voting, Congress bad decided-to "shift the 
advantage of time and inertia from the perpetrators of the 
evil to it* victims " 383 U.S, at 328. Moreover, the Court 
■treated, given that covered jurisdictions had previously 
“resorted to the extraordinary stratagem of contriving new 
rules of various kinds for the *ole purpose of perpetuating 
voting discrimination in the free of adverse federal court 
decrees[,] * * • there was nothing inappropriate ♦ ♦ • in 
putting the burden of proof on" covered jurisdictions seeking 
predearanoe. Id. at 885.

In Georgia v. United States, the Court rejected the con­
tention that the burden of proof in the administrative 
p re clearance process must rest with the Attorney General 
In that case, Georgia challenged the Attorney General’s 
regulations governing administrative preclearance, which 
placed the burden of proof on the jurisdiction submitting 
changes to the Attorney General to show that ita new voting
practice would not have a prohibited purpose or effect. The
Court obaerved that H[i)t is well established that in a de­
claratory judgment action under fi 5, the plaintiff State has 
the burden of proof," 411 U.S. at 588, apd described the

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19

question before it as whether the Attorney General was 
obligated to adopt a store lenient approach towards covered 
jurisdictions in the administrative preclnaranee process, or, 
put another way, whether the Attorney General “is without 
power to object unless be has actually found that the 
changes contained in a submission have a discriminatory 
purpose or effect," id. at 587. Explaining that “[t]he alterna­
tive procedure of submission to the Attorney General merely 
gives- the covered State a rapid .method ef rendering a new 
state election law enforceable " id  at 588 (internal quotation 
marks omitted), the Court upheld the Attorney General’s re­
gulations because "Way lets stringent standard might well 
have rendered the formal declaratory judgment procedure a 
dead letter by making available to covered 8tates a far 
smoother path to deannae.” Ibid.11

^  Before this Court*! d u liiiiii as the prior w pm I in ^  ease 
Attorney GensraTe regulation! provided that the Department of Justice
would deny preefoarencs of a voting change if “a bar to hjqdementation of 
the change [was] naeaaewy to prevent a dear vieletion of anwmfod section
2.” 8m  28 CJMt. 61 Afi(bX2) <>«*>. Qfsoure., tto C W t'*  dodrionon the 
prior appeal in this one rejected the govennnent'a position on that point 
and mads Blear that tha « iy  affect v tin a tiiit douel of prsdeanmce Is a 
retfogrssaive effect. J-S.App.98s. The regulation quoted above boa been 
repealed. 68 Fed. Reg. 8*108 (1900).

Appellee has pointed out (Appellee Br. 39-40) that, during the period in 
wtocb that regulation was in effect, the government burden
of proving that a new voting practice should ho denied pred earsncs 
ground that it weoWl "dearly violate" the “results" etaudaid or Section 2. 
The government's eeeumption of the burden of proof on that iuue
reflated iw « t« n ^  re resoorile, en th . sns bond, thi# Com*# deetatons In
8w r and City Of Loekhart r. United States, 460 UJB. 125 (1963), which 
ruled that a nnnretrogreeaivs voting change should not be denied 
prselearatuc under the effect prong of Section 6, and on the Other hand 
the legislative history of the 1982 reenactment of Section 5, which 
uKueated that a demonstration of vote dilution sufficient to establish a 
violation of amended Bmiaa 2*» "results" standard should lead to denial of 
predeannce. See J.S. App. 42* S. Rep. No. 417, at 12 a31. The govern-

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HiesB decisions are consistent with a common-sense »p- 
proicb towards the burden of proof in p rac isw io t cases. 
Congress was concerned that covered jurisdictions would 
employ now voting; practices to evade the effect of the mis 
pension of discriiniaatciry tests and devices in 8ection 4 of 
the Act, 42 U.S.C, 1978b. Congress therefore required eov- 
ered jurisdictions to show that their new voting; practices 
were not merely attempts to perpatuate racial diecriraina- 
tion by other mesne. Further, the covered jurisdiction is in 
possession of most of the information relevant to establish­
ing the validity vel non of a new voting practice, including 
most pertinently, evidence that would bear on the questioil 
of itB own purpose. Finally, given that Congress found that 
the covered jurisdictions had engaged in intentional racial 
discrimination in voting in the past, it was sensible for 
Congress to establish, in effect, a presumption that future 
voting practices enacted by covered jurisdictions would also 
have s discriminatory purpose, and to require those juris­
dictions to dem onstrate that such a presumption was 
rebutted in a particular case.

amdndtd that it  would not be intormbtent with tbs decumn* in Bm t 
“ d C** *  io c i*“T* d*“7 pwetemuee of* Moretrogreenve voting
ensnge If the govenunent mede a ibowing tiat tie duiwe would ‘‘elearlv 
vutaa" the “results” standard of amended Section 2. 7

Thi8 Court'* decision os the prior appeal makes dear that the

with Sectwc S's -egecf pwng wan a  error, and could sot be salvaged by 
t^forormmmt • assiaptSan or the Durden of proof on the Section 2 issue 
Therefore, there i* so loafer any basis for an argument that the burden of 
proof m * Section 8 afltect ease Should rest with the government Iu 
addition, when the issue la discriminatory purpose rather than effeet, the 
government ha* consistently maintained that the burden of proof rests 
with the covered junidlottao-a position well supported by this Court’s 
dveuaw , ace pp. 1718, repnr-and the government hat nevar assumed

wUTuCD Of pJTDof 01) thlS UtUg,
• ,

Vt U27

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21

B. Although, as we have shown, the burden of proof in 
predoarance cases is on the covered jurisdiction, it is 
important not to exaggerate the onerouoness o f that burden. 
In the litigation context, that burden means simply that the 
jurisdiction must establish to the satisfaction of the pre- 
dearanoe court by a preponderance of the evidence that its 
plan does not have a discriminatory purpose and will not 
have a retrogressive effect. See Grogan v. Corner, age U.S. 
279, 286 (1991) (preponderanoe-of-evidence standard is
presumed to govern  in civil case*)- see also City of Pelers 
burg, 364 F. Supp. at 1027 (in the first Section S declaratory 
judgment action, diitrict court stated that “plaintiff must 
meet the burden plaoed upon it by the Voting Rights Act of 
proving by the preponderance of the evidence that its 
change” does not violate Section 5X In practical terms, the 
covered jurisdiction and the United States (and any party 
permitted to intervene, as in this case) each presents evi­
dence to the predeannce court on the question of the juris­
diction's intent and the voting change's likely effect, and the 
risk of nonparsuasion falls on the juris diction. If the evi­
dence is in equipoise, or if the district oourt is in doubt about 
the proper outcome, then prootewance should be denied. 
See Metropolitan Stevedore Co. v. Rambo, 521 U.S. 121,188- 
180 (1997) (where "burden of persuasion [is] on the 
proponent of an order," and "when the evidence is evenly 
balanced, the proponent loses”); of. O'Neal v. McAnineh, 518 
UJ3.482,487-488 (1985).

The Court’s decision in Village o f Arlington Heighta v. 
Metropolitan Hooting Development Carp., 429 U.S. 252, 
266^266 (1977), provides the framework for litigation on the 
question of purpose in predeannce oases, just as it does in 
cases in which the burden of proof-rests with a party seeking 
to invalidate state action; the only difference in preclearance 
cases is that the risk of nonparsuasion in the ovunt of 
equipoise or doubt falte on the covered jurisdiction. Thus, to

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dem onstrate the absence of discrim inatory intent, the 
Jurisdiction may explain the process by which it decided to 
edopt the relevant new voting practice. Following Arlington 
Heights, uL at 266-268, the jurisdiction may bring forward 
evidence on the impact of the change, the historical back­
ground of the decision, the sequence of events leading to the 

action, adherence to nondiscriminatory factors ordi- 
uwUy considered important by the decisionmaker and to 
procedure* ordinarily fallowed in imposing its actions, and 
the legislative history, especially contemporary statem ents 
by legislators. Discovery should give the government the 
opportunity to test those assertions and to obtain any con­
trary  or impeaching evidence. Just as Arlington Heights 
instructs that departures from usual substantive and proce­
dural practices may indicate discriminatory intent, see id. at 
267, evidence that decisions were taken in conformity with 
regular procedures and traditional, nondiacriminatory sub­
stantive priorities can assist a jurisdiction in demonstrating 
that a new voting practice lacks an invidious purpose.

In the administrative predearanoe process, the Attorney 
General applies a burden of proof similar to that applied by 
the preclearance court. See 28 C J'.R . 51.52(a). The history 
of Section 6 enforcement demonstrates, however, tha t th iff 
burden of proof has not created any undue obstacle to 
predearanoe of covered jurisdictions’ new voting practices, 
Covered jurisdictions continue to choose the administrative 
process for the vast majority of voting changes; our records 
show that only 62 declaratory judgment predearanoe actions 
have been filed since Section 5 was enacted. Further, the 
Attorney General interposes no objection to the great major 
rty of BubnusaionB. Although the Department of Justice has 
received approximately 888,390 voting changes submitted 
for predearance review from the A rt’s enactment to July 22. 
199», the Attorney General has interposed objections to 
fewer than 1% (8,071) of those changes. The majority of

JUL—27-1999 15=15 + 98% P.29



1 7 : 1 U 514 6044 USO/DUJ

23

tho«e objections Cahoot 60% of those made in the 1990s) 
appear to have been made an the basis of discriminatory, but 
nonretrogreesive, purpose. The feet that the Department has 
objected to only 3,071 new voting practices in more than 30 
years indicates th a t the D epartm ent's preeiearance 
procedures are effective at identifying those voting changes 
wbera there js reason to behove that an invidious purpose is 
afoot without being unduly onerous to jurisdictions See S. 
Rep. No. 417, a t 48 (Senate report recommending extension 
of Act in 1982 found that Department does not unduly 
burden jurisdictions when reviewing changes submitted for 
preclearance).

Further, the Department’s published procedures for pre- 
clearance submissions provide jurisdictions with substantial 
guidance in establishing that their proposed .voting changes 
do not have a discriminatory purpose and will not have a 
retrogressive effect. Tha procedural guidance informs juris­
dictions of the kind of information that is needed to 
the Attorney General’s review. Bee 28 C J .R . 51.27, 51.28. 
The procedures are specifically designed to elicit information 
bearing on the Arlington Heights factors for determining 
whether a new voting practice has been epaoted with an un­
constitutional, discriminatory purpose.* 1* Moreover, when the

a  Thus, with regard to the impact of the plan (which this Court has
vJortttW  as the “important starting pant" for discerning invidious d«- 
“ Wanstwy purpose, 488 UJ5. »t 886). the Department sale* for in to n a ­
tion about the "antioipatwl eflsst of tk» •kuage a* mambets of racial or 
language minority groupe," 88 C.F,R. 5127(a), a n l ! »  demographic and 
geographies! information shout tha proposed ehange, id  » 5}JB(u) end <b). 
Tha Department's procedures also inform jurisdictions that the historical 
background will h i aflfiAidgpMi wh6B tha trtbnu—rom 8ec id
I  5128(b). To evaluate the “sequence of events* leading to the proposed 
voting change, the procedures explain that the Department will 
whether the jurisdiction followed “objective guidelines and to r  and 
conventional procedures in adapting the change.' id. |  6LS7(h), 
extent to which tha jurisdictions afforded members of n d a l majority

JUL-27-1999 15=15 38% P.30



u / / 2 t j / »a  1 7 .  n ‘C i l t i  014 644 4 UOlii' DUJ WO01

24

Department receives a submission, it does not immediately 
proceed to a determination whether the jurisdiction has met 
itt burden of proof or interpose an objection in the event the 
jurisdiction has faded to submit certain relevant 
When additional information is necessary to complete the 
review, the Department’s practice is to notify submitting 
ju risd iction*  of that fart as promptly as possible, and to 
provide them with the opportunity to supply such andiroum] 
information before « determination is made. See 28 C.F.R. 
51.37(a) and (d).

a  Under the principles discussed above, the district 
court erred in granting preclearance in this case. To the 
extent the district court may have considered whether 
appellee's 1992 redlstrictlng plan lacked a discriminatory 
Chat nonretrogressive) purpose, its analysis of that point is 
inconsistent with the placement  of the burden of proof on 
appellee. The district court atated that “the record will not 
support a conclusion that extends beyond the presence or 
*1*wk»  of retrogressive intent.” J.S. App. 8a. If the record 
“will not support a conclusion'' by the court on the question 
Of a discriminatory but nonretrogressive purpose, however, 
then the risk of nonpersuaaion should fall on the covered’ 
jurisdiction, not the government and the intervenora. The 
district court also stated that it could "imagine & net of facts 
that would establish a ‘non-retrogressive, but nevertheless 
discriminatory, purpose,’ but those imagined &cts are not 
present here," /d  at 8a-4a. The question before the district 
court, however, was not whether the proffered facta estab­
lished a discriminatory purpose, but whether they estab-

gronp* an opportunity to participate is the daemon, id  f 61.57(c). The 
proeeduren also request evidence of contemporary statem ent! by 
tagttatars, by asking the jurisdiction* to submit -(minutes or ueeuat. of 
public haaiingii concerning the proposed change,” to. } 51.280X3).

JUL-27-1999 15:15 + 9 5 * P.31



o / / i o/aa I <: 11 514 6644 usu/mjj

25

a Any finding 
without a. diB- 
rtwned on ap-

CONCLUSION
The judgment of the district court should be reveled . 
RespectftUly submitted.

8*7® P.Wajqun 
Soiieitnr Ocncrul

July 1909

iinhed the absence of s  discriminatory dutdogb 
madc by *** court t b s u ^ U e e ^ d  
cnmuatory purpose, therefore, cannot be bu,

ill ui;-

Plan with sdiMrtiriatoy ? ' J * p,toWe0a*
w B ttific t purp(mt <If ““<* » findingwouw ■* dearly erroneous & d  could not hm 
wto numoraa «**«. findj*^ made fay that courT 
CappeUee hid “toudcu. u  J Z Z L  S !  » L ApP’CodtBM *>Bt«Vili»lii i . _n. j  . «Bwnieni the status QUO";twciwB eKaouuas rather dearly that [appellee 1 did _i_
unprowment in the position of racfcu * *  w*konJC
efflK*ve exerda* or the electoral ^  * ^ Peet W

r a t streagth would rebut appellee'* contention that it acted wrti ^ f *
n .  itoria  . z L r f .  »

* > a u » « « «  t o  i ! ^

U» lOM rmneat't ^

— j u s .

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