Brooks v. Allain Memorandum of the Appellees, Mississippi Republican Executive Committee, in Opposition to Jurisdictional Statement

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:,...":iMISSiSS{PPI)t'EP1,BLI{]:t'|i.. .EXECUTIVECOBTI}III"TE[. ,--. ...'
IN OPPOSITION TO J T ] I{ ISDICTION AI- ST {TE[tET.JT

I M ish.]el B. 1trralla,:e

Jrl\ES. l\lOCKBi:E & B,rS.S
I08rJ Flir.t D;ire. Suite E
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Jacksort. l,l is ;issippr 19'.1l6

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i\ ttorne;rs fr,r N'ii:,r,isiippi
Ri:pub lican E.xccutivc Cornrnittue.
Appcltecs

* Counsi'l :.t{ fis13r;t



i

TABLE OF CONTENTS

Table of Authorities

Statement of the Case

The Appeal Presents No Substantial Question . . . . .. 3

I. The Distiict Court's Findings of Fact Are
Clearly Erroneous. 4

II. The District Court Applied An Improper Legal
Standard In Concluding That Section 2 Had,
Been Violated. 9

III. The Remedy Imposed By The District Court
And The Further Remedy Sought By The
Brooks Plaintiffs Violate Both The Fourteenth
Amendment And The Voting Rights Act. . ..... 16

Conclusion

Prge

ii

,

24



ii

TABLE OF AUTHORITIES

Ceses:

Arlington Heights_ _u. Metropolitan Housing Dev.
Corp.,429 U.S. 2SZ (1977)

Bose Corp. v. Consumers (Jnion of the United Stutes,
Inc., 

- 
U.S._ 52 U.S.L.W. 45t3 tU.S. api.

30, lg84)
Boston Fire/ighters (Jnion, Local 7lg, v. Boston

Chapter, NAACP,_ U.S. _ 103 S. Ct.2076
(1e83)

Broolcs v. ll'inter, _ U.S. _ I03 S. Ct. ZO77

!.f8]),_vacating and remanding Jordan v. Winter,
_ 541 F. Supp. I l3j (N. D. Miss.lggz) .
Busbeev. Smith,549 F. Supp.494 (D.Ii.C. l9g2), afldmem.,_U.S._ 103 S. Ct. g09 (t993) . .... . .
Chapmanv. Nichobon,579 F. Supp. 1504(N.D. Ala.

r9E4)
City of Mobib v. Bolden,446 U.S. 55 (t980) . . . . . 5,
Connecticut v. Teal,4j7 U.S. 4q (lgg))
Connorv. Finch,43l U.S. q7 Ug77)... . ..
Connorv. Johnson,386 U.S. q$ U:;OT
Daytoy M. of Hucation v. Brinkman,433 U.S.406

(te77)
Fire/ighters Local Union No. l7g4 v. Stotts, _U.S.- No. 82-206 (June lZ,lgg4)
Fusari v. Steinberg.4lg U.S. 379 (1975)
Herm v. Stafford,663 F.Zd669 (6th Cir. lggt)
Joyes v. City of Lubbock,TZT F.2d 364, rehearing en

bancdenied,730F.2d233 (5th Cir. t9g4) ........
Ketghum v. Byrne, Nos. 83-2044,g3-2065, &g3_2126

(7th Cir. May 17, t984) .

Marshall v. Edwards, 582 F.zd gZ7 (Sth Cir. l97g),
cert. denied sub nom. fust Carroll parish police

Page

II

ll

l3
l3-t5,21

18, 19

17,23
5

4

19,22

l3

22

4
5

t4

t2

lury v. Marshall, UZ U.S.9O9 (lg7g) . . . . .ZO, Zl, 23



I'l'
Mississippi v. Smith, 541 F. Supp. 1329 (D.D.C.

1982), appeal dismissed, 

- 
U.S. 

- 
103 S. Ct.

1888 (les3) 7

Regents of the Universily of Cahfornia v. fukke, 438
U.S. 265 (1978) 18, 19

Rybicki v. State M. of Elections, 574 F. Supp. 1082
(1982), on mtn. for reh., 574 F. Supp. I147 (N.D.
ilI. 1983)

Smithv. Winter,TlT F.2d l9l (5th Cir. 1983)
Teamstersv. United States,43l U.S. 324(1977) .....
Upham v. Seomon, Civ. No" P-8149-CA (E.D. Tex.

Jan 30, 1984), juris. statement filed sub nom.
Strake v. Seamon, No. 83-1823 (U. S. May 9, 1984)

United Jewish Organizations v. Carey, 430 U.S. 144
(te77)

United Stotes v. Carolene Products Co.,304 U.S. l,t4
(re38)

United States v. Morengo County Commission, No.
8l-7796 (l lth Cir. May 14, 1984) .

United States v. New York Telephone Co.,434 U.S.
r59 (r978)

Yelasquez v. City of Abilene, No. 82-1630 (5th Cir.
Mar.2,1984). :.....

Washingtonv. Davis,426 U.S. 229 (1976)
Williams v. City oJ'liew Orleans,729 F.2d 1554 (5th

Cir. 1984) (en banc)
Yick Wo v. Hopkins, I l8 U.S. 356 (1886)
Zimmer v. McKeithen,485 F.2d 1297 (5th Cir. 1974),

aff'd sub nom. fust Carroll Parish School Bd. v.
Marshall,424 U.S. 636 ( 1975)

Constitution, statutes

U.S. Const., Amend.
U.S. Const.. Amend.

3,9,

42 U.S.C. $1973
42 U.S.C. $1973c

23

20
l8

l5
l3

l9
l9

l6
9

t4
r5

I3, l6

12, 14

l8

12-15,22

4

13, 14, l6

Page

passtm
passim



iv

Miscellaneous:

128 Cong. Rec. 57120 (daily ed. June 18, 1982)
128 Cong. Rec. H3844 (daily ed. June 23,l98Z) . . . . .
Subcomm. on the Constitution of the Senate Comm.

on the Judiciary, Report on the Voting Rights Act,
Comm. Print, gTth Cong.,2d Sess. (1982)

S. Rep. No.4l7,97th Cong.,2d Sess. (1982) 6, 20,21 l
Voting Rights Act: Hearings Before the Subcomm. on

the Constitution of the Senate Comm. on the
Judiciary,97th Cong., 2d Sess. (1982) . ... .ll, 13, 14, 20, 2l

Remarks on Signing H.R. 3l l2 into Law, l8 Weekly
Comp. Pres. Doc. 846 (June 29,1982)

R. Stern & E. Gressman, Supreme Court hactice(Sth
ed. 1978)

Bonapfel, Minority Challenges to At-Iarge Ebctions:
The Dilution hoblem,l0 Ga. L. Rev.353 (t976) ..

Mansfield, The Underhandedness of Afirmative
Action, Nat'l Rev. 26 (May 4, 1984)

Page

20

ll, l2

2t

t5

2t

t7



i -:. '...

IN THE

Suyreme 6.ourt af, t\eJHnite} fitates
OCTOBER TERM, 1983

NO.83-r865

OWEN H. BROOKS, et al., Appellants

v.

BILL ALLAIN, Governor of Mississippi, et al., Appellees

On,Appeal From The United States District Court
For The Northern District Of Mississippi

MEMORAIIDUM OF THE APPELLEES,
MISSISSIPPI REPUBLICAN
EXECUTIVE COMMITTEE,

IN OPPOSITION TO JURISDICTIONAL STATEMENT

The Mississippi Republican Executive Committee, Appellees
herein, have filed their own Jurisdictional Statement appealing
the Judgment of the United States District Court for the
Northern District of Mississippi in Mississippi Republican
Executive Committee v. Brooks, No. 83-1722. Because they feel
that the Judgment below is erroneous in its entirety, they cannot
move to affirm that Judgment, as permitted by this Court's Rule
l6.l(c), even though they believe the questions presented by the
Jurisdictional Statement of the Brooks Plaintiffs "are so
unsubstantial as not to need further argument." Cognizant that
this Court does not ordinarily receive motions to dismiss an
appeal from a federal court, and upon advice of the Clerk, the
Republican Defendants submit this Memorandum to convey
their position that the Court should not entertain oral argument
in No. 83-1865, should note probable jurisdiction in No.
83-l722,and should reverse the judgment of the District Court.



2

STATEMENT OF THE CASE

- The Repubrican Defendants have set out their statement ofthe case in some detail in their Jurisdictionat Statemen i at +4,M^ississippi Repubtican Execufive Commitrce v. .Broolcs No.
Y-17?2 [hereinafter cited as Republican J. S ]. ;;;;;se theBrooks praintiffs have raiseo ttre issue of i.iiJv l" ,r,.i.Jurisdictionar Statement, it is necessary here to ca, a fewadditional facts to the Court's attention.

The Brooks praintiffs strongly impry that they are asking thiscourt to recreate a congressionat District rocated in the Derta
Trl 1!11"k populatio n ot OSqo or greater. J. S. at 3-5 & nn. t &4, 8-10 & nn.6 & 7. The r."orj clearly reflects that it isimpossible to create a Delta district which is 65Vo black. Sincethe last such districr existed in 1960, J. S. at 3 

".1,;;pd;tationhas shifted so that it is now porribr" to create either a Deltadistrict or a 65Vo black district, but not both. As the BrooksPlaintiffs' expert testified, 'fl]t becomes readily obvious thatthere is a rimit to the number ol bracks that you ."rrin"o.por"r.
in a small derta district if you restrict yourserf to the traditionardelta counties, that is to say, not including f"ff.rron una
!fa1U9rn [src], and 

. excludiiig Hinds Corin*;, 
-; 

r.' tZ+.Eicluding those counties, the *u-*irnuo, attainabri brack voting
age population would be about 50.gyo.Tr" 125.

The plans containing black majorities of 64.35V0 and 63.60V0,described by the Brooks praintifis as being..in thi o.itul."u,,,J's' at I0, in fact both contain a portion of the city of Jackson,as well as other pafts of Hindi County. Tr. 163{6. Hindscounty has never been considered to be "in the derta area,,'ascounsel for the Brooks praintiffs crearry recognized at triar. Tr.163. See also J. S. at 3a n.3.
The Brooks praintiffs properly note that the triar court wasreluctant to *combine 

urban areas of the city of Jackron *i t ,r,.rural Delta area." J. S. at 10. They imply, however, that tfreCourt brought some urban areas into ttre Second Oiririo UVadding "portions of the Jackson suburbs in Hinds couiiv." ra.
a1 I l. However, their witness Henry Kirksey testified ar triar that
these portions of Hinds County are clearly rural:



.' ,i.'..!.. '

Q How would you compare life in those rurai precincts
outside of Jackson generally with life in the delta
area?

A I find personally Mr. Parker - and I don't claim to be

an expert in this area - but I find that the basic
difference in the rural in the Fourth Congressional
District here is wete talking about large plantations
up here versus smaller farms down in the Fourth
Congressional District.

Tr- 163. It should also be noted that the District Court's plan,
like all previous Mississippi Congressional districting plans,

does not split any municipalities.

THE APPEAL PRESENTS NO SUBSTANTIAL QUESTION

This appeal presents only the question of the standards to be

applied by a district court in devising a remedy for a districting
plan found to violate Section 2 of the Voting Rights Act,42
U.S.C. $1973. If this Court agrees with the Republican
Defendants that the District Court erred in finding a violation of
Section 2, then this appeal presents no question at all. The
Republican Defendants submit that the District Court's findings
of fact are clearly erroneous and that it applied an improper
interpretation of Section 2.

Even if Section 2 has been violated, the Brooks Plaintiffs are
not entitled to the additional relief they seek. Their argument is

that the District Court's remedial plan is insufficiently race-
conscious. This Court has never approved a race-conscious
remedy in a voting case; Section 2 does not require it, and the
Fourteenth Amendment forbids it.'

t The Jurisdictional Statement previously filed by the Republican Defendants
does not attack the propriety of the remedy. Republican J. S. at 26-27 n.l5.lt
this Court agrees with our substantive arguments, then the proper course is to
reverse the Judgment of the District Court and direct the reinstatement of
either the l98l legislative plan or the 1982 court plan. ld..at6. lf this Court
rcjects those arguments. but agrees that a race-conscious remedy is

inappropriate, then the proper course is to reverse the Judgment and direct the



I
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4

I. THE DISTRICT COURTS FINDINGS OF FACT
ARE CLEARLY ERRONEOUS.

The Brooks'praintiffs are not entitred to the further rerief theyseek on their appeal because the District court's factual
findings, necessary to support its concrusion that Section z had
been violated, are crearry erroneous. The Repubri*n p.i"ndants
recognize that Federal Rule of civil procedure sz(a) ptaces a
heavy burden rpgn them to suppoft this contention. bJrtainty,
the ultimate finding in this 

"aii is "a so-calred .constitutionar

{act,' " Bo-se 
-corp. 

v. consumers (Jnion of the united states,rnc.,_U.S. _,52 U.S.L.w .4s13,452i(U.S. ap.. Jol rgs+l

entry of a remedy which is not racc-conscious.
Thc Republican Defendants, however, do not scek that resurt. shourd thiscourt decrine to rcinstate eithcr thc lggr plan or the lgg2 plan, they wilracquicsce in the rctention of the l9g4 pran, rather than subjeci tt" uot"., orMississippi ro even further.disruprion.'They raise the i.p"..ir.iu,iiy or tmDistrict court's remedy onry for ihe purpo* of resisting ,rr. i.piriiiJ." 

"r ""cvcn more drastic remedy.
ordinarily' a respondent or an apperee is 'entitred under our precedents tourgc any grounds which wourd lend support to the judgme ntbiow.-baytonturd of &lucation v. Brinkman,433 u.3. oo0, ars i$ill. Hor"erer, ,i"r" 

"r.apparently some cascs-in which a party has been *barred from presenting anargumcnt which would have supported the judgment in his favor uecause itslogic would have led to the eniry of a juaiment which went further in hisdirection'- R- Stern & E. Gressman , supr"mi courr praaiceEo.:iui +so 1s,tcd. 1978). The court since has indicaied that this is a matter of discretionrather than jurisdiction. united stotes v. New york Terephone c"., +J+ u.s.
l5l, 166 n.E (1978). This discretion should be even morc readity availabte inthis casc' becausc an appeafbrings the 'whole case'before the court. Thus,
issues that might provide arternativi grounds for support of the District courtjudgment can be considered by this court even though not specificailyp-T:ltd by cross-appa,l.- Fusari v. Steinberg,4lg U.S. :ZS, :g'Z*g n.l:(te7s).

. Tur, the Republican Defcndants submit that this court is free to consider
their attack on thc propriety of the District court's remedy, .u.n tt orgi'it t 

",not been prcscnted in their Jurisdictionar statement or by a cross-appeil in thiscase. If this court shourd concrude that it lacks such discretion, ti"n tt i,Memorandum should be treated as a Jurisdictionar Statement on cross-
Appeal, as permitted by this court's Rule 12.4, for the purpose oir.rotrlng
this single issue. The additionar materiar required by Rure ts'tras atreaJy been
submitted to this Court in the Jurisdictionar btatement in No. g3-r722.



(Rehnquist, J., dissenting), but we do not ask this Court to
undertake the sort of hypercritical examination of the record
which the Court performed in that case. That is the sort of
analysis undertaken by the plurality in City of Mobile v. Bolden
446 U.S. 55 ( 1980), which we concede that Congress intended to
disapprove by its amendment to Section 2. Republican J. S. at
22. Even under the traditional standard, however, we believe
that the record fails to support the District Court's findings.

The District Court first noted, "That Mississippi has a long
history of de jure and de facto race discrimination is not
contested."J. S. at 8a. That is because it was not pled, except for
"intentional racial discrimination in Mississippi congressional
redistricting since 1966." Brooks' Plaintiffs Objections to the
Simpson Plan !f7. That allegation was not and could not have
been established, in the face of this Court's judgment in Connor
v. Johnson, 386 U.S. 483 (1967), rejecting a constitutionalattack
on Mississippi's redistricting plan. While the evidence of the
other forms of discrimination found by the Court to have
existed was admissible as circumstantial evidence in support of
the one form of discrimination pled by the Brooks Plaintiffs, the
Defendants had no way of knowing that the Court would apply
that evidence to establish other allegations not pled. Therefore,
they were deprived of the opportunity to make a record on those
allegations. The District Court's use of evidence to establish
allegations not pled is analogous to an appellate court's
affirmance of a judgment on a theory not argued below; it
should only be done where "the opposing party is not denied an
opportunity to respond to the new theory." Herm v. Stafford
663 F.2d 669,684 (6th Cir. l98l). The Republican Defendants
have had no opportunity to respond to the District Court's new
theory, which they did not even receive until after they had filed
their own Jurisdictional Statement.

The District Court's theory is "that the effects of the historical
official discrimination in Mississippi presently impede black
voter registration and turnout." J. S. at 9a. While low black
turnout was not pled by the Brooks Plaintiffs, they did at least

allege that the Second District was "majority white in registered
voters." Brooks' Plaintiffs Objections to the Simpson Plan !f4.



6

Their own expert testified that there was no official voter
registration data and that the best he courd do was to make
estimates. Tr. r0r{3. The State Defendants'expert tord counser
for the Brooks plaintiffs that the actual relation between black
and white registration courd not be precisery determinedr

... I think that you also have to remember the error for
the black voter registration is greater than the error
for the white registration. enA there is 

"rr 
.q;i

chance that the white and black registration are equal,just as much as there's an equal .hun". tt,"t tn.j ui.
wider. You cant always assume that the error breaks
the wrong way.

Tr. 458. while the District court's finding of low brack
registration may be a reasonable speculation, there is no
substantial evidence in the record to support it. with regard to
black turnout, the evidence is equalry insubstantiar. 'r-he Brooks
Plaintiffs actually found that biack turnout in the Democratic
primary exceeded white turnour on a percentage basis. Ex. p-76
at 16. It is true that white turnout excleded blick in the general
election, id,,at9, but the evidence shows that some black riaders,
including the Brooks ptaintiffs'witness Henry Kirksey, did not .actively campaign for the Democratic nominee. ri. nl-lg.
certainly, this sort of contradictory evidence on an issue not
pled is insufficient to support the Court's factualfindings.

The Brooks Plaintiffs likewise failed to plead the exlstence of
'socio-economic disparities between blacks and whites in the
Delta area and the state as a whore.- J. s. at 9a. The court
fou-nd this "probative of minorities' unequal access to the
political process in Mississippi," on the basis of a footnote in the
senate committee Report: "where these conditions are shown,
.and where the lever of brack participation in poritics is
depressed, plaintiffs need not proue any further causar nexus
between their disparate socio-economic status and the depressed
Ievel of political participation." S. Rep. No. 4l7,97thCong., 2d
Sess. 29 n.l14 (1982) [hereinafter iited as Senate Rep'ort].
Because the District court's tinding that ..the level of ttacr
participation in politics is depressed" is clearly erroneous, the
evidence of socio-economic disparities is irrelevant to this case.



i

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7

The Court further found, "Plaintiffs have established that
voters in Mississippi have previously voted and continue to vote
on the basis of the race of candidates for elective office." J. S. at
l0a. With regard to previous elections, this finding is absolutely
unsupported by the record. The Plaintiffs introduced no
evidence whatsoever of voting patterns in elections prior to
1982.2 With regard to 1982, the Brooks Plaintiffs'evidence did
not deal with Mississippi as a whole, but only with the Second
District. Even there, almost lSVo of whites in the general election
voted for the black candidate, Ex. P-76 at9, a far less polarized
situation than that prevailing in such uncovered jurisdictions as

Chicago, Illinois. Tr. 484-85. Indeed, the only striking
polarization shown by the record was that exhibited by the class

of black voters represented by the Brooks Plaintiffs, only 3.5V0

of whom voted for the white candidate at the general election.
Ex. P-76 at 9.

The Court sought to bolster this finding of polarized voting by
a perfunctory statement that it had been encouraged by "racial
campaign tactics."J. S. at l2a. The Court noted, id.,at l2a n.8,
that the Republican candidate's slogan was "He's one of us."
The record reflects that the slogan had been adopted while the
white Democratic incumbent was still in the race, Tr. 339, and
thdt the Republican candidate had carried a banner bearing that
slogan to a meeting of the Greenwood Voters League, a black
organization which Plaintiff Jordan serves as President. Tr. 336.

This hardly indicates an attempt to stir racial animosities. The
Court also took exception to the following television
commercial:

There is a new Mississippi, a Mississippi of new jobs
and new opportunities for all our citizens. [video pan
of black factory workers] We welcome the new, but
we must never, ever forget what has gone before.

[video pan of Confederate monuments]

: Thc Brooks Plaintiffs may attempt to rely upon mention of bloc voting in the

stipulation from l/risissippi v. Smith. 541 F. Supp. 1329 (D.D.C. 1982),

appealdismissed,- U.S. 

- 

I03 S. Ct. lE88 ( 1983). J. S. at 8 n.6. None of
thc Defendants in this case were parties to that case, it was admitted into
evidence over thcir objection. and neither of the District Court's opinions in
this case has given it any credence whatsoever. Cf. Republican J. S. at 7.



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J. s. at lla n.8. It is more reasonable to interpret this
juxtaposition of images as an attempt to bridge the gajbetween
blacks and whites in the Second District. Anyfinding ihat it was
intended to widen that gap must be rejected as clearlferroneous.

on the basis of these clearly erroneous findings of subsidiary
fact, the District court reached its clearly e..onious finding of
ultimate fact:

We therefore find racial bloc voting operates to dilute
black voting strength in Congressional districts where
blacks constitute a minority of the voting age
population. Since the Second District under the) Simpson PIan does not have a majority black voting
age population, the presence of racial bloc voting in

. that district inhibits black voters from participating
on an equal basis with white voters in electing
representatives of their choice.

J- S- at I Ia. The record clearly reflects that other factors,
including the unwillingness of some black leaders to support the
Democratic nominee, contributed to the inability of bhil voters
to elect the candidate a. majority of them preferred. The Brooks
Plaintiffs'expert testified that, while blacks were disadvantaged
by not having a majority of the voting age population, it was not
impossible for their candidate to win an erection in the second
District as then constituted. Tr. 148-51. The state Defendants'
expert testified that a black candidate in the Second District
would have a reasonable opportunity to be elected. Tr. 403{4.:

I counsel for the Brooks Plaintiffs mischaracterizes his testimony by saying
that equal access would exist only "so long as the white .ro.ror..'uoting rate
reached at least the level which occurred in the l9g2 general election.-J.-S. at
l7 n.9. ln fact, he testified that it would only be necessary for a black candidate
to *rcceive a significant factor of the white vote." Tr. 463. The evidence in this
casc shows that to be entirely possible.

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It should not be necessary to review each.of these findings rn
detail. The districting plan found illegal by'the District Court
had been used only once. In the Democratic primary, a black
candidate defeated white opponents, while in the Republican
primary, a white candidate det'eated a black opponent. When
those victors faced each other in the general election, the white
candidate won by only 2,000 votes. A more racially equal result,
even if Section 2 requires that, can hardly be imagined. The
clearly erroneous finding that equal access did not exist can only
be explained by a conclusion that the law requires superior
access for black voters. That conclusion is equally false.

II. THE DISTRICT COURT APPLIED AN
IMPROPER LEGAL STANDARD IN
CONCLUDING THAT SECTION 2 HAD BEEN
VIOLATED.

Counsel for the Brooks Plaintiffs once again misrepresents the
record in contending that "all parties now concede that there
was a violation" of his clients' rights. J. S. at 13. The
Jurisdictional Statement previously filed by the Republican
Defendants in No. 83-1722 denies that there has been a violation
of the Fourteenth Amendment, the Fifteenth Amendment,
Section 2, or Section 5. It is not necessary to repeat those
arguments here to demonstrate that the Brooks Plaintiffs are
entitled to no further relief. It will, however, be useful to
examine the contours of a Section 2 violation as they emerge,
however murkily, from the District Court's opinion and the
Brooks Plaintiffs' Jurisdictionil Statement.

Neither the District Court nor the Brooks Plaintiffs take the
trouble to define the nature of the rights conferred by Section 2.

This makes it awkward to construct a remedy, for it is hard to
restore a litigant to his rights without knowing what those rights
are. Indeed, it is from examining the remedies favored by the
District Court and the Brooks Plaintiffs, together with a few
revealing comments from each, that one can best determine their
concepts of the substantive rights protected by Section 2. The
District Court apparently believes that black voters are entitled
to an electoral advantage, but not to a guarantee of success; the
Brooks Plaintiffs believe that they are entitled to a guarantee.
Both are wrong.



Ip.. 
".

The District courtt opinion nowhere precisery defines therights which Section 2 ;;il ;;however, nnJ 
.that .i;il;;i,".1,,"ff:' Jli"i"Hl,,Il;prevented ..black 

lor:., .rro,, p"rti"iputine-on" u?,ll*r u"ri,with white voters in,er""rin-g i.iir.ntatives of their choice.,, J.S. at I la. As a re.medy, ,f," i"r,{."ncluOed that..the creation ofa second Distri.ct t'Jiin 
" il; ii"* voting age popurationmajority of s2.g3vo ir rrni.i.iiiJo*r*.e the effects of pastdiscrimination and .""i"ruio";;; and wi, provide a fair andequal contest to all voter, ;h; #:ericti o ns. -- ii.l4 i +". 1n. Affi TJ"i:ll: 

ip-"j: i n co n gress i o nal
proposedbypraintirrs:;*il;','"'bfiffif 

;;*,ll::fll[.rr:?Tbtack.congr.rirnan in the s..5; djl#i1"",::*::Ithi s etecti Jn g*r" n,y, w_h ich $rGi jiI,k,?: 
ir:ijlH:,, ;ff ,Tnavea certain advglle-gffe., ,pon if,L rmpact of black voters inthe Fourth District.,, Id,, ail;;. ;;;"*ntry, the District Courtbetieved that Sectio" ,';ir;;'il5:

etect o ra r 
" 

a * ni" g. *r,. r.i., il; 
',l;ifi I ri, ili:l : ;. t :,j[was crearrv aistuibed ,r,"i-i-'tl il;*. it-wourd aisadvantageeven further those ptu*, fiviig;;rril" the favored district.+The Brooks plaintiffq ilil'il;i huna, seek to transformthe"totarity of the cir"r;;;;r- il:t section 2 into an ..a,or nothing" test' They defin" u-uior"rion of Section 2 as the

^;r1",^.lTjl:::fl,l,::':i;sj:*;,,:.,"ssortheopp"iJi,v.,otrr" p i,iii 
"i a;* b, ;; T;;; ilil;.,{o; ;,i!.li;, il iJ ; illi: ::that opportunity' -rn r".,' ,1" 

"rrr'.ou* rejected praintiffs,proposed prans for the expiicit ,tuit"orra .probabry 
insure theelection of a bhck congressma 11., 

,, Id. 
_ln short, i 

"ourt "an
"fully "' provide" orotection or i..tion 2 rights onry when itsremedy woutd ..jrobably il*;;';;: election of a blackcongressman' " That this guarant.. or ru"".ss to the black voters
..TheCourt 

indicared as much in its opinion. .TI
dirurebrack'",ine'i..ig,r,;nco-n'e;.;ffi 

i;,:*r#i#r;:l,[r.""r,',?,T,'J:
fl ,T:;#,tjl:r,""J;i"1* pop u h t [n. - J. J.' 

" 
il.r" secti on 2. t hen. i,,iol" t.o

g-"1r.,.ii,,.*orri'i,lfi ff 
,;'jil':,H,:,tt;p,,r'.couiii.n",,i""".,n.

beforc. _.v...e.. ,ruw vrolate section 2 more egregiously than

-i--t-]FFEE,



'!' ..1;. ..;'...'1, 
'.,.' i I '..'

of one district may disadvantage the black voters of adjoining
districts is no concern of Section 2. "This does not constitute a
prohibited diiution of biack voting strength where the adjoining
district does not contain a black voting majority." Id., at 17.
Section 2 is satisfied only when black voters are capable of
controlling an election; where black voters cannot constitute a
ma_iority, no matter how creative the gerrymander, the Brooks
Plaintiffs'version of Section 2 provides no protection. In short,
the Brooks Plaintiffs seek electoral apartheid; a court should
create as many bantustans as possible, and ignore everyone
outside their boundaries.

The Brooks Plaintiffs have even quantified the amount of
advantage that they believe Section 2 guarantees them. 'fA]
district which is 65 percent black in population or 60 percent
black in voting age population was necessary as a remedy to give
black voters an equal opportunity to participate in the political
process and to elect candidates of their choice." Id., at 8. The
Brooks Plaintiffs raised this contention on their last appeal, and
the Justice Department properly rejected it. "The letter
[objecting to the l98l legislative plan] did not state, nor does the
Attorney General maintain, that a 657oblack district is required
for purposes of Section 5 preclearance." Brief for the United
States as Amicus Curiae at 12. Brooks v. Winter,-U.S.-
103 S.Ct. 2077 (1983). This is fully consistent with the testimony
that the Justice Department had previously presented to
Congress. As Assistant Attorney General Reynolds told the
Senate Judiciary Committee. "ln evaluating reapportionment or
redistricting plans submitted under Section 5, ... we proceed on a
case-by-case basis, in the light of all the facts, without imposing
any rigid mathematical standards."Voting Rights Act: Hearings
before the Subcomm. on the Constitution of the Senate Comm.
on the Judiciary, 97th Cong., 2d Sess. 183 (1982) [hereinafter
cited as Senate Hearings]. In the House, Representative Levitas
of Georgia, who was then involved in litigation identical to this
as a result of the Justice Department's refusal to preclear
Georgia's redistricting plan, see Busbee v. Smith,549 F. Supp.
494 (D.D.C. 1982), aff'd mem. U.S. 

- 

103 S.Ct. 809
(1983), asked whether the Act contained "any numerical
percentage of what would constitute a minority district."

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Chairman Edwards assured him that "the bill contains no such

provision." 128 Cong. Rec. H3844 (daily ed' June 23, 1982)' Nor

iras this Court eve; imposed such a requirement. In United

Jewish Organizations v. Carey,430 U'S' l4 (1977\, this Court

permitted New York voluntarily to create legislative districts

ih"t *"r. 65Vo black, but this Court has never held that a State

or a district court is required to create such districts. Moreover,

counsel for the Brooks Plaintiffs has misrepresented the District

court's decision by claiming that it holds "that Section 2

prohibits the creation of a 65 percent black district as a remedy

io, uppruring racial discrimination and redistricting'" J' S' at

14. lniact, the District Court did no more than recognize the

obvious fact that "the use of a race-conscious remedy for
discrimination can come into tension with Congress'

disclaimer in $2 of any right to proportional representation."

Id., at I3a. ThL District Court held only that Congress had not

wished to mandate the guarantee of black success which the

Brooks Plaintiffs desire.

Despite this clear history of rejection of the 65% standard, it

remains necessary for this court explicitly to repudiate it-. Just

last month, the Seventh circuit reversed a district court for its

failure to create 65Vo black districts. Ketchum v' Byrne' Nos'

83-204,83-2065&83-2126(TthCir'May17,1984)'TheCourt
found that the figure had been "either specifically adopted or

tacitly approved; by many courts' Slip op' at 32' This

,.quir.*int of a supermajority i'lows naturally from the Court's

mistaken conceptio; of minority rights: "[A]n effective majority

means.a majorily of the population substantial enough to allow

lroup choici to be effective.,n Id., at24 n.13. Thus, the Seventh

tir"uit provided the guarantee of success that the District Court

in this case properly refused to give'

Perhaps it. tnott honest and comprehensive summary of the

emergini jurisprudence under amended Section 2 was given last

,on,i iy lrdg" Wisdom for the Eleventh Circuit in United

States v. Marengo Counry Commission' No' 8l-7796' slip op' at

3 146 ( I I th Cir. MaY 14, I 984):

Some authorities suggest that a finding of discrimina-

tory result is compelled when the plaintiffs show



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racially polarized voting combined with an absence of
minority elected officials. ... Others have argued that
discriminatory effect is irrebuttably established when
these factors are combined with a history of discrimi-
nation and present socioeconomic disparities between
the races. ... Certainlt, when the plaintiffs establish
these factors and no other factors weigh strongly
against the plaintiffs'case, dilution must be found.

Most courts have faithfully parroted the long list of factors given
in the Senate Report. See Republican J. S. at 20. Nevertheless,
every single decided case, with the exception of Upham v.
Seamon, Civ. No. P{l-49-C.{ (E.D.Tex. Jan. 30, 1984), juris.
statement filed sub nom. Strafte v. Seomon, No. 83-1823 (U.S.
May 9, 1984), is consistent with Judge Wisdom's summary.

Judge Wisdom's summary is inconsistent, however, with the
legal analysis of Chapman v. Nicholson, 579 F. Supp. 1504
(N.D. Ala. 1984). and the entire legislative history of amended
Section 2. The Chapman Court found that "the practical effect
of the 1982 amendment is to return the court's inquiry in a
statutorily-based vote dilution case to the Zimmer [v.
McKeithen, 485 F.2d. 1297 (5th Cir. 1973),1 criteria as they
existed priSr to the Washington v. Davisl, 426 U.S. 229 ( 1976),1
and Arlington Heights lv. Metopolitan Housing Development
Corp.,429 U.S. 252 (1977),] decisions." 579 F. Supp. at 1507.5
This is clearly the most extreme reading of Section 2 which can
be supported by the legislative history.6 As counsel for the
Brooks Plaintiffs told the Senate Judiciary Committee, "The

5 The result in Chapman however. is consisrent with Judge Wisdom's
formulation because the Court found insufficient evidence of past discrimi-
nation or polarized voting. 579 F. Supp. at 1513. Whether these findings can
survive appcllate review is problematical. See Marengo County, slip op. at
3t3840.

6 A somewhat less extrcme reading is that Congress intended to impose the
same substantive standard as in Section 5. lndeed, that is all the plaintiffs
sought in Cily of Mobile. "[T]he standard for judging election practices is the
same under section 2 as under section 5 ...." Brief for Appellees at 16. Cit.v of
Mobile. lf this Court adopts that reading of Section 2. the District Court's
l9E2 Order should be reinstated. Republican J. S. at l0-12.



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amendment restores the original intent of Congress and would
also restore the legal standard applied by the courts prior to the
Mobile decision." Senate Hearings at I183 (testimony of Frank
Parker). Nevertheless, the Fifth Circuit has rejected Zimmer and
fashioned a new test out of the Senate Report. Jones v. City of
Lubbock,727 F.2d 364, 383{6, reh. en banc denied, 730 F.2d
233 (5th Cir. 1984). Most irnportantly, that Court noted that
"Congress has articulated as an objective factor an evidentiary
issue - polarized voting - that this Court's pre-Bolden cases had
not treated as a tnatter of primary importance ." 727 F.2d at 384.
See generally 730 F.2d at 233:36 (Higginbotham, J., concurring).

The elevation of polarized voting to such importance has

meant, again contrary to the assurances of counsel for the
Brooks Plaintiffs, that the amended Section 2 will "ensure near
certain victory for minority voters." Senate Hearings at I184
(testimony of Frank Parker). Indeed, three of the Justices of this
Court have recognized, "Where it occurs, voting for or against a

candidate because of his race is an unfortunate practice. But it is
not rare ...." United Jewish Organizations, 430 U.S. at 166

(Opinion of White, J.). Two of the other factors cited by Judge
Wisdom, *a history of discrimination and present socio-
economic disparities between the races," Marengo County, slip
op. at 3146, are likewise not rare.7 Indeed, unless this Court
finds that such factors are present on a nationwide basis, it
should hold Section 2 unconstitutional. Republican J. S. at 24 &
n.13.

7 The continually expanding theory of dilution is illustrated by the efforts of
the plaintiffs in City of Mobile to downplay the importance of past

discrimination.'No decision of this Court suggests that multi-member districts
should be struck down wherever there is a recent history of discrimination in

voting ....- Brief for Appellees at 45 n.27, Ciry of Mobile. This sutement
remains true today.



Of Judge Wisdom's four factors, then, the only one which
might not be found almost everywhere is "an absence of
minority elected officials." Marengo County, slip op. at 3146.
Yet this is exactly the factor which Section 2(b) says is not
sufficient by itself to establish a violation. In short, if this Court
approves the emerging jurisprudence under Section 2, it will
enshrine exactly what the President thought he had forestalled
in agreeing to the compromise version of Section 2. See
Remarks on Signing H.R. 3l 12 into Law, 18 Weekly Comp.
Pres. Doc. 846 (June 29,1982).

Judge Wisdom's assurance that a violation might not be
found where'other factors weigh strongly against the plaintiffs'
case,- Marengo County, slip op. at3146, rings hollow in light of
the actual disposition of that case. The District Court's finding
that the absence of elected black officials was due to voter
apathy was deemed clearly erroneous. Id., at 313940. The
District Court's finding that local authorities were not
unresponsive to black needs was likewise found clearly
erroneous. Id., at 314y',45. The Fifth Circuit was somewhat less
abrupt in Velasquez v. City of Abilene, No. 82-1630 (5th Cir.
Mar.2, 1984), merely reversing the defendants'verdict because
of insufficiently detailed lindings of fact. Slip op. at 2290-91.
Apparently the hypercritical standard of review applied by the
plurality in City of Mobile is now to be applied only where the
plaintiffs lose.

Nor did countervailing factors weigh in favor of the
Defendants in this case. The Court explicitly found that the
Representative elected from the Fourth District under the 1982
plan was "reasonably receptive and sensitive to the needs of the
black community," J. S. at l4a, and gave no credence to the
evidence offered by the Plaintiffs purporting to show that the
Representative from the Second District was unresponsive.
Compare Tr. 272-73 (testimony of David Jordan) with Tr.
3N42, 357-59 (testimony of Dana Bruce Covington). This
would lend support to "the State legislature's policy favoring the
division of the black population of the State into two 'high
impact'districts rather than concentrating it into one district." J.
S. at I la. These factors were found insufficient to defeat the



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plaintiffs'case because "section 2 precludes dependence on this

p",i;r;; Id. The District Court's opinion in Upham' the only

i."irion which is not in accordance with Judge Wisdom's

formulation, is thus in direct conflict with the decision in this

case. That court approved "the legislature's decision to create

* i.p"., districti instead of one safe district." Jurisdictional

io,.*"n, at A-l_14, strake v. seamon Unlike the District

Courtinthiscase,thetJphamCourtfounditconclusivethatthe
two Representatives elected from those districts had "established

,,rong iecords of support for the concerns of black voters." /d.,

at A-l-16.
Ironically, the most important of the Zimmer factors"'a lack

of access to the Process of slating candidates'- 485 F'2d at I 305 '
i. ;;" present in this case, but on th" part of the white minority'

The Plaintiff Jordan testified that "a caucus of black delegates

from various counties in the Second congressional District" was
-t,"rai'Julyoflg82toselectacandidateforCongress.Tr.260.

That caucus selected Robert Clark, who went on to become the

p.-o.oti" nominee. Tr' 26L Black voters went on to vote in a

bloctoamuchgreater,extentthanwhitevoters.ltisironicinthe
extreme that this conduct, condemned under Zimmer' should

have been rewarded with a newly gerrymandered district'

TII. THE REMEDY IMPOSED BY THE DISTRICT

COURT AND THE FURTHER REMEDY

SOUGHT BY THE BROOKS PLAINTIFFS
VIOLATE BOTH THE FOURTEENTH AMEND'

MENT AND THE VOTING RIGHTS ACT.

TheBrooksPlaintiffsarenotentitledtoanyfurtherrelief
from this Court, because the relief they have already received

i;;; the District Court violates both the Fourteenth

Amendment and the Voting Rights Act' As we have already

u-tgu.J, Republican J' S' at 26' the Court imposed a race-

conscious remedy which harmed more alleged victims than it

i.fp.O. This Couit has never approved a race-conscious remedy

in'the area of voting, "nd 
it has never approved any

race-conscious remedy ,it i.t, harms more victims than it helps.

Moreover, the legislative history of Section 2 indicates that

Cligt..t did not iitend to permit such racial gerrymanders'

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The District Court, however, did not violate the remedial
principles set down by this Court in Connor v. Finch,43l U.S.
N7 (1977).Indeed, it is only because the Court followed those
principles so carefully that its constitutional and statutory
mistakes are so obvious. This Court was concerned that
departures from "neutral guidelines can lead, as they did here, to
a charge that the departures are explicable only in terms of a
purpose to minimize the voting strength of a minority group."
Id., tt 425. A district court, therefore, "should either draw
Iegislative districts that are reasonably contiguous and compact
... or explain precisely why in a panicular instance that goal
cannot be accomplished."/d., at425-26.In this case, the District
Court admitted that its plan *does not provide a compact
geographical configuration for the Second District.-J. S. at l5a.
The Court nevertheless explained its departure as being
necessary "to overcome the effects of past discrimination and
racial bloc voting" in the Second District. Id., at l4a. The Court
candidly recognized that its plan "necessarily reduces the black
population of the Fourth District to 41.99Vo." Id. ln short, the
District Court carried out its "purpose to minimize the voting
strength of a minority group," Connor v. Finch,43l U.S. at4ZS,
whites in the Second District, by further *minimiz{ing] the
voting strength of a minority group,- blacks everywhere else.S

This Court in Connor v. Finch was not concerned with
attaining some ideal representation of minority voters. Rather, it
was concerned with avoiding even the appearance of racial
gerrymandering. The Court cautioned the District Court..to put
to rest suspicions that Negro voting strength is being
impermissibly diluted." Id., at 425-26. Justice Blackmun's
concurrence was primarily concerned with "whether a racial or
improperly motivated gerrymander has taken place," id., at 427
(Blackmun, J., concurring), and to "avoid any appearance of
partisanship." Id., at 430 (Blackmun, J., concurring). The

t rhe District court's care in following connor v. Finch is the defect of its
opinion, because, as Professor Mansfield has recently stated, *affirmative

action works only when it is concealed and lied about. ... [T]he concealment
and the lies are all the more necessary because everyone knows the truth.-
Mansfield, The Underhondedness of AfJirmative Action, Nat'l Rev. 26(May 4,
r984).



r.. r .i ,t{
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District Court's opinion broadcasts that a racial gerrymander

has taken place. fnt-titttotal strength of both black and white

voters around ttre state has Leen salrificed to make it easier for

a few black voters i;;; a;.ond District to control an election.

This Court has never before even hinted that a federal court may

execute such a blatant gerrymander' 
-

The Brooks Plain't'i-fFs;tg* that blacks in the Fourth District

d;;;iiv u, di;;il;;ged even further in order to achieve

an..increas" in Ufacl vo,-ii-g"r,r.rrgth i.n the Second District." J'

il "iiZ. 
This Court has iecently rejected a similar statutory

argument raised irr-ttrt context oi employment discrimination'

where *petitionert ;;i;iil]t t" iustifv discrimination against

respondents on th;;;'i' of iheir favo'able treatment of other

members of respon'dJii';t"i"r group'- Connecticut v' Teal' 457

U.S. 440, 454 (198;i'-et tf ii .Court 
concluded' 

*The fact

remains, how"'"r, it'* itt"tpective of the form taken by the

discriminatory p'ut-G' an employer's treatment of other

members of the prii"iiirr'gioup can-be'of little comfort to the

victims of ... Aiscriminatioi'' T'o*'t'," v' United States' [431

u.s. 324J 342t!s;;;i';isi us' a1+ls' Assuming' for the sake

of argument, that''iiJ'gtoots Plaintiffs are correct that black

voters have been ;;;;J in Mississippi' their solution is to

victimize the vast majority of them even further so as to aid a

. small group in tt" Slllni Dist'itt' A- remedy which distributes

its burdens and benefits so capriciousry is hardly "precisely

tailored to serve a competting governmental interest"' Regents

of the Universit| ;; ;'W'":1 u:-Yoo'' 438 u'S' 26s' lee

(19?8) (Opinion oipo'nitt' J')' as is ordinarily required for

race-conscious action'
The Justice ptp"ti*""t' in a brief recently filed with the Fifth

Circuit, t ur ,""oJiJ'Jii'"i u"ttt blacks "i1H::t 
are equallv

entitled to proteciion from such government actlon:

That the proposed consent order would disadvantage

nonminoriti"iptoytts rather than a "discreet and

insular #;;tri; Qnited-- srures v' carolene

Product sc^ 3# iJ's' t ++' l-5! n'a( I 938) ) is witho'ut

constitutio;;i;igtifi*nce' "[l]t is the individual who

is entitled to judicial protection against classifications

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l9

based upon his racial or ethnic background because
such distinctions impinge on personal rights, rather
than the individual only because of his membership in
a particular group t*t." Regents of the University of
Californio v. fukke, supra,438 U.S. at 299 (opinion
of Powell, J.); see e.g., Yick Wo v. Hopkins,l l8 U.S.
356,369 (1886).

Suggestion of Rehearing en Banc for the United States as

Intervenor-Appellee at22-23, Williams v. City of New Orleans,
729 F.2d 1554 (5th Cir. 1984) (en banc). The Department went
on to criticize the remedy in that case:

First, and most important, ... the proposed consent
decree would embrace nonvictims as well as victims of
defendants' unlawful discrimination ... and would
thus accord racially preferential treatment to persons

having no *rightful place"claim... . [G]overnment has
no compelling interest in according such preferential
treatment to nondiscriminatees at the expense of
innocent third parties ... .

Id;,at 25. The remedy in this case is equally susceptible to this
criticism. It affords'preferential treatment to nondiscriminatees

[whites in all districts but the Second] at the expense of innocent
third parties [blacks in those districts].'r The relief sought by the
Brooks Plaintiffs would only exacerbate the constitutional
infirmity already present in the District Court's remedy.

The amendment to Section 2 does nothing to overcome this
constitutional infirmity. Indeed, supporters of the compromise
version were conscious of the traditional emphasis on individual
rights, as expressed by this Court in Connecticut v. Teal, and
sought assurances that the rights of individuals would not be lost
in the rights of a class. The following interchange between
Senator Gorton and Senator Dole is indicative:

q This Court has agreed with the Department's position, on satutory grounds,
holding only last week that a race<onscious remedy is appropriate *only when
the bcneficiary of the award has actually been a victim of illegal
discrimination-" Firefighters Local Union No. 1784 v. Stotrs, 

- 
U.S. 

-.No. 82-206, slip op. at l6 (June I 2, 1984). There is no indication in this record
that the white beneficiaries of this award have ever been victims of illegal
discrimination.



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' MR. GORTON. Is Congress in any way trans-
forming what in my mind ought to be an inAiviauat
right into a "class right'?

MR.. DOLE. Senator, you raise an important point.
I think I can best respond in this way: The right to
vote remains an individual right, but in some cases the
denial of their right may be based on a class
characteristic.

128 Cong. Rec. 57120 (daily ed. June 18, l9g2). Assuming that
the right to vote is even implicated in redistricting decision-s, but
cf . Smith v. Winter, TtT F.2d t9l, 196 n.3 (Sthtir. 1983), the
right of white individuals in the second District and 6hck
individuals everywhere else has been denied purely on the basis
of *a class characteristic."

This concern for individual rights and rejection of racial
gerrymandering was most obvious in the debate over
proportional representation, eventually resulting in the language
codified in section 2(b). counsel for the Broo[s phintiffJ now
says, *This entire subsection addresses only what constitutes a
violation, and does not control the issue of a remedy." J. S. at
14. He thereby finds himself in the awkward position of agreeing
with chairman Hatch, who had consistently taken that position
throughout the debate. senate Report at 97 (additional views of
Sen. Hatch). The awkwardness is compounded by his own
testimony before the Subcommittee on the constitution: ..The

specter raised by some witnesses at these hearings that this
'results'standard would lead to proportionar representation by
race and racial quotas has no basis whatsoever." Senate
Hearings at 1204 (testimony of Frank parker). ..This has not
been empty rhetoric on the part of the Fifth Circuit, but has
been implemented in actual practice. Indeed, in the context of
court-ordered remedial plans designed to replace unconstitu-
tional election systems, the court has held it impermissible to
use proportional representation as a benchmark. Marshall v.

:-r'-qr-=17n



:2]

fulwards,582 F.2d g27,g3g(5th Cir. I978)."r0 Senate Hearings at
1208 (testimony of Frank Parker).tt He apparently convinced
the Democratic minority of the Subcommittee: "The minority
joins the majority in rejecting proportional representation as
eitheran appropriate standard for complying with the Act or as
a proper method of remedying adjudicated violations."
Subcomm. of the Constitution on the Constitution of the Senate
Comm. on the Judiciary, Report on the Voting Rights Act,
Comm. Print,9Tth Cong., 2d Sess. 83 (1982) (additional views
of Sen. DeConcini and Sen. Leahy).

Counsel now seems to think that proportional representation
should' indeed be used as a benchmark, so long as the
benchmark is not achieved. *Providing black voters with an
opportunity to elect one out of five members of Congress (20
percent) does not constitute proportional representation in any
Serse."J. S. at l3-14. In support of his new position, he cites a
passage in the Senate Committee Report to the effect that a
*court should exercise its traditional equitable powers to fashion
the relief so that it completely remedies the prior dilution of
minority voting strength." Senate Report at 31. Leaving aside
the unreliability of the Senate Report as an accurate index of the
intent of Congress and the President, see Republican J. S. at
20-22, it should be clear that the "traditiohal equitable powers,'
of a court do not extend to racial gerrymandering. This Court
has never approved such a remedy, much less made a tradition
of it.
ro The standard set forth in Morshall is in fact quite sound: "The boundaries
should be drawn with an eye to compactness, contiguousness, and the
prescrvation of natural, political and traditional boundaries; not racially
balanced representation." 582 F.2d at 937. While counsel may now be able to
distinguish this holding, the imporunt consideration for purposes of
derermining Congressional intent is that he failed to do it before the
Subcommittee. These, then, were the "traditional equitable powers,- Senate
Report at 3l . Congress thought it was endorsing.
ll Counscl took a different position in an earlier appearance beforc this Court:
* [T]hc inability to elect a share of representatives substantially proportionate
to their numbers is alleged to be a denial of the effective representarion to
which they are entitled under the Constitution."' Brief for [awyers'Committee
for Civil Rights under Law as Amicus Curiae at 10. City of Mobile, quoting
Bonapfel, Minority Challenges to At-Large Elections: The Dilution Problem.
l0 Ga. L. Rev. 353, 360 ( 1976).



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If congress had.intended to permit, much less mandate, suchan unconventional and potentially unconstitutional i...ay, itshould be expected to have r"iil;'in much crearer terms. As theJustice Department has said oiu'*..*onscious layoff order,such remedies shourd u" .onria.r"; il ;;;il.i,/lir",,,,fairry crear that congress i"i.ro-.i-r" authorize such rerief andthereby force the C6urt ,o .roiu"," Congress, power to actthrough the courts on a race 
"onr"ro* basis.,, Brief for theUnited States as Amicus Cr;;.1;;u!-port of petitioners at 25,Boston Fire/igfuers (Jnion, L.;"i Zl^s-,_u. Boston Chopr"r,NAAcp, _ u.s. 

-, 
rots:4,.. 2076 a;;;;.ir.cfrt"irry,nothing in the regisrative rlr,ory 

"r.-rrty 
inaicates it u,ionu."r,rntended "to act through trre 

"ourtr 
on a race conscious basis.,,courts certainry shourd'noi ;;;il;our ru"l .i.r, 

"rri".i,r.Indeed' the only.ra..*onr.iou, remeoies which courd extendto alleged victims riving outside ii" i"uor.a district are the sortsof remedies discussed-uy Juage 
-wiraoln 

in the context of acounty commission:

Alternatively, all nine members could be electedat-large, but- each voter coulJ ie given the right tovote for only. five candidates,- ttrus **rrie 
-ii"i

minority political interests t-"* u chance to electmembers io -the board. Orf,L, alternatives arecumulative voting and transferable prefer.nti"i r"rirg.
Morengo County, slip op. at 3 l3 I n.24.These kinds of remedieshave a name: proportionur r"pi"r.niliion. These are exactly theremedies which congress and president Reagan intended todeny the courts. when ttre execuiivoJnd regisrative branches ofgovernment deny to the judiciar branch ttr"-onty."-.1, *nt"ncan futly redress a deniaiof th" r;;;;;;tive right defined by thecourts, it becomes clear that tt. 

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as the Republican-p.[naunt, r,"u. 

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12 This Court last *.1f 

:rTld. rhat the legislative history of the EqualEmployment opportunity Act of r972.so s,"a%2, was insufficient to supponan argument that consress had intended ,o uriio.,r. race-conscious remedies.

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23

Regardless of the definition of the right, there is at least one
remedy which would not in and of itself violate the Constitution
and the Voting Rights Act. That is the remedy prescribed by this
Court in Connor v. Finch. This Court required District Courts
to divide the jurisdiction into contiguous districts, as compact
and equal in population as possible, and to explain their reasons
wherever they departed from those principles. Where, as here,
the District Court declares its intent to prefer one race over
another, that remedy becomes clearly infirm.

The proper remedy has recently been described by Judge
Grady of the Northern District of lllinois:

The relief I would grant would be a map drawn
according to the traditional neutral. criteria, without
regard to what I believe is the constitutionally
impermissible consideration of race or ethnic
character. Such a map would consist of compact and
contiguous districts, drawn with due regard to the
one-person-one-vote requirement as well as natural
political boundaries. See, e.g., Connor v. Finch,43l
U.S. at 425,97 S. Ct. at 1839; Marshall v. Edwards,
582 F.zd at 937.It would be a colorblind map. ...
[W]hatever the bloc voting effect of a colorblind map
might be, it would be unintended. That, in my view, is
the only way the Constitution permits. There is no
way to draw racially conscious lines that will be
'neutral."

Rybickiv. State M. of Elections,574F. Supp. 1082, I 14l (N.D.
IIl. 1982) (Grady, J., concurring in part and dissenting in part).r3
The District Court erred by failing to adhere to this standard,
and the Brooks Plaintiffs are entitled to no further reiief.

13 Judge Grady's opinion was not changed by the amendment ro Section 2.
Rybicki v. State M. of Eleuiow,574 F. Supp. I I47, I t60 n.t (N.D. Iil. 1983)

(Grady, J., dissenting in part and concurring in part).



l'f

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. 
CONCLUSION

The District court improperly found a violation of Section 2,
and awarded rclief which violates both thc constitution and the
voting Rights Act conscquently, thc Brooks plaintiffs arE not
cntitled to the additional relief they scek on this appeal. Their
Jurisdictional statemcnt, thns, prcscnts no subsuntiaj qucstions
rgnhy of oral argumcnt on appcal. The Judgmcnt of tirc court
bclow should not bc affirmed, however, uecausc it is undcr
atack in No. 83-172L Probable jurisdiction should be noted of
thatappqf and.the Judgmcnt should be rerrcrscd.

Rcspcctfu[y submitted,

+Michacl B. Wallacc

JONES, MOCKBEE & BASS
1080 Flynt Drivc, Suite E
F. o. Box 55507
Jackson, Mississippi 39216
Tcl. (Ol)939-3895

Attorncys for Mississippi
Republican Executive Csmyn i 11ge,
Appcllccs
) Cowrselof Record

.{.t
. .J.

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