Reno v. Bossier Parish School Board Brief of Appellee

    Nos. 98-405, 98-406

In The

Supreme Court of the United States
October Term, 1998

--------------- ♦---------------
JANET RENO, ATTORNEY GENERAL 

OF THE UNITED STATES,
Appellant, and 

GEORGE PRICE, et al,
Appellants,

v.

BOSSIER PARISH SCHOOL BOARD,
Appellee.

--------------- ♦---------------
On Appeal From The 

United States District Court 
For The District Of Columbia

--------------- ♦---------------
BRIEF OF APPELLEE

♦

M ichael E. Rosman 
H ans F. Bader 
C enter for

Individual R ights 
1233 20th Street, N.W. 
Suite 300
Washington, D.C. 20036 
(202) 833-8400

M ichael A. C arvin* 
D avid H . Thompson 
C raig S. Lerner 
C ooper, C arvin

& Rosenthal, PLLC 
1500 K Street, N.W. 
Suite 200
Washington, D.C. 20005 
(202) 220-9600
*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 
OR CALL COLLECT (402) 342-2831



1

TABLE OF CONTENTS

STATEMENT OF THE C A S E ............................................... 1

SUMMARY OF ARGUMENT..............................................  7

ARGUMENT..............................................................................  8

I. THIS APPEAL IS NONJUSTICIABLE..................  8

II THE DISTRICT COURT DID NOT RULE THAT 
SECTION 5 REACHES ONLY RETROGRES­
SIVE INTENT.............................................................  12

III. SECTION 5 REACHES ONLY RETROGRES­
SIVE INTENT.............................................................  16

IV. SECTION 5 PRECLEARANCE MAY NOT BE
DENIED BECAUSE A CHANGE VIOLATES 
THE CONSTITUTION...............................................  33

V. THE DISTRICT COURT’S DISCRIMINATORY 
PURPOSE FINDINGS ARE NOT PROPERLY 
BEFORE THIS COURT AND ARE NOT CLEARLY 
ERRONEOUS.................................................................  43

CONCLUSION.........................................................................  50

Page



11

C ases

Abrams v. Johnson, 521 U.S. 74 (1997)..............11, 17, 40

Allen v. State Bel. of Elections, 393 U.S. 544 (1969) 
............................................................................ 11, 28, 34, 35

Anderson v. Bessemer City, 470 U.S. 564 (1985)............ 50

Arizonans for Official English v. Arizona, 520 U.S. 43
(1997)........................................................................................ 8

Arlington Heights v. Metropolitan Hous. Dev. Corp.,
429 U.S. 252 (1977).....................................................passim

BankAmerica Corp. v. United States, 462 U.S. 122
(1983)....................................................................................  17

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

Beer v. United States, 374 F. Supp. 363 (D.D.C. 1974) . . . .  34

Berry v. Doles, 438 U.S. 190 (1978).................................  10

Board of Curators o f the Univ. o f Mo. v. Horowitz,
435 U.S. 78 (1978)............................................................. 49

Brogan v. United States, 522 U.S. 398 (1998).................. 24

Brown v. Piper, 91 U.S. 37 (1875)......................................... 5

Burke v. Barnes, 479 U.S. 361 (1987)........................... 8, 10

Busbee v. Smith, 549 F. Supp. 494 (D.D.C. 1982),
aff'd, 459 U.S. 1166 (1983).............................................  30

Bush v. Vera, 517 U.S. 952 (1996)............................... passim

Church o f Scientology v. United States, 506 U.S. 9
(1992).....................   9

City of Lockhart v. United States, 460 U.S. 125 (1983). .passim

TABLE OF AUTHORITIES
Page

m

City o f Mobile v. Bolden, 446 U.S. 55 (1980) 
.............................................................................  19, 26, 33, 34

City o f Pleasant Grove v. United States, 479 U.S. 462
(1987)............................................................................. passim

City o f Richmond v. United States, 422 U.S. 358
(1975)............................................................................. passim

TABLE OF AUTHORITIES -  Continued
Page

Clark v. Roemer, 500 U.S. 646 (1991)...............................  32

Coastal States Mktg., Inc. v. Hunt, 694 F.2d 1358 (5th
Cir. 1983) .................................................................................4

Connecticut Nat’l Bank v. Germain, 503 U.S. 249
(1992).......................................................................................18

Connor v. Finch, 431 U.S. 407 (1977)................................ 40

Crandon v. United States, 494 U.S. 152 (1990) .............. 32

De Castro v. Board of Comm’rs, 322 U.S. 451 (1944)........5

Freeman v. Pitts, 503 U.S. 467 (1992).............................. 49

Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978) . . . .  14

Georgia v. United States, 411 U.S. 526 (1973)................ 22

Griggs v. Duke Power Co., 401 U.S. 424 (1971)............ 25

Hall v. Beals, 396 U.S. 45 (1969)........................................... 9

Holder v. Hall, 512 U.S. 874 (1994)....................17, 19, 32

In re Korean Air Lines Disaster, 829 F.2d 1171 (D.C.
Cir. 1987), a ff’d sub nom. Chan v. Korean Air 
Lines, Ltd., 490 U.S. 122 (1989)......................................  12



IV

Johnson v. De Grandy, 512 U.S. 997 (1994).................... 15

Johnson v. Miller, 864 F. Supp. 1354 (S.D. Ga. 1994) . . . .  47

Lewis v. Continental Bank Corp., 494 U.S. 472 (1990) . .8, 10

Litton Fin. Printing Div. v. NLRB, 501 U.S. 190
(1991)...................................................................................... 32

Lopez v. Monterey County, 119 S. Ct. 693 (1999) ...28, 37

Lopez v. Monterey County, 519 U.S. 9 (1996)............1 1, 36

Lopez v. Monterey County, 516 U.S. 1104 (1996) ..........12

Lujan v. Defenders o f Wildlife, 504 U.S. 555 (1992) . .9, 10

Mandel v. Bradley, 432 U.S. 173 (1977)............................ 30

Magnolia Bar A ss’n v. Lee, 994 F.2d 1143 (5th Cir.),
cert, denied, 510 U.S. 994 (1993) .................................. 6

McCain v. Lybrand, 465 U.S. 236 (1984).......................... 32

Miller v. Johnson, 515 U.S. 900 (1995) ....................passim

Mohasco Corp. v. Silver, 447 U.S. 807 (1980)..................18

Morris v. Gressette, 432 U.S. 491 (1977)....................32, 42

Mt. Healthy City Sch. Dist. Bd. o f Educ. v. Doyle, 429
U.S. 274 (1977)...................................................................  40

Northeastern Fla. Chapter o f Associated Gen. Con­
tractors v. Jacksonville, 508 U.S. 656 (1993)..............10

Oil, Chem. and Atomic Workers ln t'l Union v. Mis­
souri, 361 U.S. (1960)......................................................... 10

Perkins v. Matthews, 400 U.S. 379 (1971)........................11

Pierce v. Underwood, 487 U.S. 552 (1988)...................... 37

TABLE OF AUTHORITIES -  Continued
Page

v

PPX Enter., Inc. v. Audiofidelitv, Inc., 746 F.2d 120
(2d Cir. 1984)................................................  4

Presley v. Etowah County Comm'n, 502 U.S. 491
(1992)..................................................................................... 32

Pullman-Standard, Div. o f Pullman, Inc. v. Swint, 456
U.S. 273 (1982).............................................................43, 44

Reno v. Bossier Parish Sch. Bd., 520 U.S. 471 (1997) . .passim

Robinson v. Shell Oil Co., 519 U.S. 337 (1997)........18, 25

Rogers v. Lodge, 458 U.S. 613 (1982)..........19, 26, 34, 44

Shaw v. Hunt, 517 U.S. 899 (1996)............................. 41, 47

Shaw v. Reno, 509 U.S. 630 (1993).............. 17, 34, 35, 39

Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26
(1976).......................................................................................10

South Carolina v. Katzenbach, 383 U.S. 301 (1966) 
.................................................................................... 25, 28, 39

TABLE OF AUTHORITIES -  Continued
Page

Southern Christian Leadership Conference v. Ses­
sions, 56 F.3d 1281 (11th Cir. 1995), cert, denied,
516 U.S. 1045 (1996)............................................................ 5

Spencer v. Kemna, 118 S. Ct. 978 (1998)..........................11

Thornburg v. Gingles, 478 U.S. 30 (1986)....................6, 19

United Jewish Org. v. Carey, 430 U.S. 144 (1977)........ 34

United States v. Mendoza, 464 U.S. 154 (1984).................. 12

United States v. Munsingwear, Inc., 340 U.S. 36
(1950).......................................................................................11

U.S. Bancorp Mortgage Co. v. Bonner Mall Partner­
ship, 513 U.S. 18 (1994).....................................................12



VI

Voinovich v. Quilter, 507 U.S. 146 (1993).......................  27

Washington v. Davis, 426 U.S. 229 (1976).......................  34

Watkins v. Mabus, 502 U.S. 954 (1991)............................... 9

Westwego Citizens for Belter Gov’t v. City o f West- 
wego, 906 F.2d 1042 (5th Cir. 1990).................................5

White v. Regester, 412 U.S. 755 (1973) . . . .  23, 25, 37, 40

Winpisinger v. Watson, 628 F.2d 133 (D.C. Cir.), cert, 
denied, 446 U.S. 929 (1980) .................................................5

Yee v. City of Escondido, 503 U.S. 519 (1992)................ 43

Zaldivar v. City of Los Angeles, 780 F.2d 823 (9th Cir.
1986).......................................................................................... 5

Constitution, Statutes and Rules

U.S. Const., amend. XV...........................................................26

13 U.S.C. § 141(b).....................................................................2

42 U.S.C. § 1973(a).................................................................20

42 U.S.C. § 1973c..................................................... 11, 17, 40

28 C.F.R. § 51.52(a).................................................................32

28 C.F.R. § 5 1 .5 6 .....................................................................32

Fed. R. Evid. 201 .......................................................................5

Sup. Ct. R. 14.1(a).................................................................. 43

Sup. Ct. R. 1 8.3........................................................................ 43

Sup. Ct. R. 5 2 .......................................................................... 44

TABLE OF AUTHORITIES -  Continued
Page

Vl l

L egislative M aterials

S. Rep. No. 417, 9th Cong., 2d Sess. (1982)............passim

128 Cong. Rec. 14292 (daily ed. June 18, 1982)............ 20

52 Fed. Reg. 487 (Jan. 6, 1987).........................................  41

TABLE OF AUTHORITIES -  Continued
Page



1

STATEMENT OF THE CASE
While appellants paint the disturbing picture of a mono­

lithic white majority imposing a redistricting plan which 
permanently disenfranchises black voters, this picture bears 
little resemblance to the facts or the actual electoral results in 
Bossier Parish. In adopting the plan at issue here, the Bossier 
Parish School Board (the “Board”) selected the only plan 
presented to it that conformed to state law, since private 
appellants’ maximization plan (the “NAACP plan”) con- 
cededly constituted a facial violation of state law, as well as 
numerous other neutral redistricting criteria. J.A. 376-77 (La. 
Rev. Stat. § 17:71.3(E)(1)).1 The plan that was chosen had 
already been precleared by the Department of Justice just one 
year before. J.A. 86. In operation, the Board’s plan has 
resulted in the election of three black members to the Board.

Bossier Parish is governed by a Police Jury, the 12 
members of which are elected from single-member districts 
for consecutive four-year terms. Although no electoral district 
of the Police Jury has ever had a majority of black voters, 
Jerome Darby, a black resident of Bossier Parish, had been 
elected three times (the last time without opposition) by 1992 
to represent a majority-white district as a member of the 
Police Jury. App. 79a. Another black representative preceded 
Mr. Darby in that district. J.A. 516-17.

On April 30, 1991, all members of the Police Jury, 
including Jerome Darby, its black member, approved a redis­
tricting plan for the Police Jury containing two districts with 
substantial black populations, but no district with a black 
majority. Specifically, District Four was 45.2% black, and 
District Seven was 43.9% black. App. 164a j[ 59. The plan 
was submitted to the Justice Department on May 28, 1991,

1 In this brief, citations are to the Appendix (“App ") filed with the 
jurisdictional statements in this appeal (“U.S. J.S.”), (“A-I J.S.”), to the 
Joint Appendix (“J.A.”), to the United States and appellant-intervenors’ 
briefs (“U.S. Br.”), (“A-I Br.”) and Oppositions to Motion to Dismiss 
(“U.S. Opp.”), (“A-I Opp.”), and to the trial transcript in the court below, 
No. CR 94-445 (D.D.C.) (“Tr.").



2

and on July 29, 1991, the Attorney General precleared it. 
Contrary to the misleading representations of appellants, the 
concerns of the black community were conveyed to the Jus­
tice Department prior to preclearance. See Hawkins Testi­
mony at 6 K 11.

Given that the Board and the Police Jury had shared the 
same district boundaries until 1980, the Board approached the 
Police Jury to formulate a common redistricting plan. App. 
81a. The Police Jury rejected this overture. App. 107a. State 
law expressly prohibited the Board from changing, splitting, 
or consolidating the precincts established by the Police Jury 
for the Police Jury’s 1991 redistricting plan. J.A. 376-77 
(“The boundaries of any election district for a new apportion­
ment plan from which members of a Board are elected shall 
contain whole precincts established by the parish governing 
authority under R.S. 18:532 or 532.1.”). Thus, it would have 
been a facial violation of state law for the Board to adopt the 
NAACP plan or, for that matter, any plan that created a black 
majority district, because it is stipulated that: “It is impossi­
ble to draw, on a precinct level, a black-majority district in 
Bossier Parish without cutting or splitting existing precinct 
lines.” App. 195a 1 152. The failure to abide by this manda­
tory state law requirement would have rendered the Board’s 
plan “null and void.” J.A. 377.

Appellants assert that the Police Jury could have split 
precinct lines so that the NAACP plan might be adopted. This 
is demonstrably false. Under state law, the Board was 
required to redistrict prior to December 31, 1992. J.A. 88-89; 
J.A. 406-07 (La. Rev. Stat. § 17:71.5) (state law required 
redistricting to be complete on December 31 of the second 
year following the year in which the President received the 
census report, which under 13 U.S.C. § 141(b), was 1990). 
And under state law, the Police Jury could only make changes 
to its existing precincts after December 31, 1992. J.A. 389 
(La. Rev. Stat. § 18:532.1(H)(1)). Thus, it was impossible for 
either the Board or the Police Jury to sanction any precinct 
splits prior to the mandatory deadline for the Board to adopt a 
redistricting plan. This requirement under state law that 
Boards and Police Juries use the same precincts as “building

3

blocks” for their districts is, of course, entirely rational.2 3 
Splitting precincts by divergent district lines engenders sub­
stantial costs and creates significant voter confusion. App. 
107a; see Bush v. Vera, 517 U.S. 952, 974-75 (1996). Thus, 
even assuming (as the district court did to give appellants 
every benefit of the doubt) that the Police Jury somehow 
could have retroactively created 65 additional precincts to 
render the NAACP plan lawful, neither it nor the Board had 
any rational reason to do so.

Moreover, the conclusion that state law prohibited the 
adoption of any plan creating a black-majority district was 
uniformly acknowledged by the parties at the time the Board 
was considering which plan to adopt. Specifically, the Board 
was correctly advised both by its cartographer and the Par­
ish’s District Attorney during the September 3, 1992 meeting 
where the NAACP plan was presented that its massive 
number of precinct splits violated state law. App. 83a-84a; 
App. 179a 1 102. Likewise, the NAACP itself acknowledged 
this state law prohibition in 1992, and merely contended that 
the Supremacy Clause of the United States Constitution 
required the Board to ignore state law. J.A. 195-96.

The NAACP plan included two majority-black districts, 
the maximum possible number of such districts and roughly 
proportional (2/12) to the Parish’s black voting age popula­
tion of 17.6%. App. 83a. The plan was drawn by William 
Cooper for the exclusive purpose of “creat[ing] two majority 
black districts.” J.A. 371. The NAACP plan subordinates 
traditional redistricting principles, because it is not compact,1

2 Although the Police Jury and Board used different district lines for 
the first time in the 1980s, they had never split precinct lines, and the 
unrebutted evidence is that none of the redistricting plans submitted for the 
Board’s consideration by its cartographer created such splits. J.A. 250-51; 
Tr. (Myrick) at 118.

3 A stipulation suggests that it was obvious, apparently to some 
unnamed members of the Police Jury in 1991, that one “reasonably 
compact” majority-black district could be established within Bossier City. 
App. 154a ’I 36. This subjective assessment of some of the Police Jurors



4

splits all three town boundaries in the Parish and dramatically 
departs from the Police Jury districts. J.A. 458, 464, 509-10. 
In direct contravention of Louisiana law, the NAACP plan 
splits 46 precincts, 65 times. J.A. 471-96; App. 108a (some of 
the precincts suffering more than a single split; thus requiring 
that they become three or more new precincts). Of these, 17 
precincts would have had less than 20 people in them. J.A. 
471-96.

On September 3, 1992, the Board responded to NAACP 
concerns by granting its request that a black person, Jerome 
Blunt, be appointed to the vacant seat on the Board. This 
reflects “the Board’s demonstrable willingness to ensure 
black representation on the Board. . . . ” App. 112a (emphasis 
in original). At the same September 1992 meeting, the Board 
also passed a motion of intention to adopt the Police Jury’s 
redistricting plan. The jury plan offered “the twin attractions 
of guaranteed preclearance and easy implementation (because 
no precinct lines would need [to be] redraw[n]).” App. 106a. 
By maintaining the integrity of the Police Jury’s precincts, the 
Board not only complied with Louisiana law, but also avoided 
the costs and disruptions that would have accompanied the 
NAACP plan. Furthermore, the Board understandably 
assumed that the Department of Justice would automatically 
preclear a plan that was identical to one the Department found 
to be entirely free of any discriminatory purpose or effect just 
one year before. With two districts well over 40% black, the 
plan also offered the substantial promise that black voters 
would be able to elect a candidate of their choice.

has no reference to the objective feasibility of creating a “reasonably 
compact” majority-black district in Bossier City. Furthermore, the parties 
introduced substantial evidence, including a federal court finding, 
demonstrating it was not feasible to create a “reasonably compact” 
majority-black district in Bossier City, which is why it has never been 
drawn. See, e.g., J.A. 471-96; J.A. 48-49, 51-52. Thus, any contrary 
stipulation should be disregarded. PPX Enter., Inc. v. Audiofidelity, Inc., 
746 F.2d 120, 123 (2d Cir. 1984); Coastal States Mktg., Inc. v. Hunt, 694 
F.2d 1358, 1369 (5th Cir. 1983).

5

On January 4, 1993, the Board submitted its plan to the 
Department of Justice for preclearance. Despite the identity 
between the Police Jury and Board plans, the Department 
denied preclearance citing “new information, particularly the 
1991 [PJolice [J]ury elections held under the 1991 redistrict­
ing plan and the 1992 redistricting process for the [S]chool 
[B]oard.” App. 235a. Yet, the only noteworthy event of the 
1991 Police Jury elections was that Jerome Darby was once 
again re-elected, this time without opposition, to represent a 
majority-white district.

Two elections have been held under the redistricting plan 
adopted by the Board. In 1994, two black candidates were 
elected to the Board. Julian Darby was elected from district 
10, which is only 26.7% black. J.A. 508. Vassie Richardson, 
who is also black, was elected from district 4, which is 45% 
black. J.A. 508. In the interim period between elections, the 
Board appointed Kenneth Wiggins, an African-American, to 
fill a vacancy in district 8 on the Board. In the 1998 elections, 
Mr. Wiggins was re-elected over a white opponent in a district 
that is only 21.1% black. J.A. 508; Official Elections Results 
attached to Motion to Dismiss or Affirm at A4. Also, both 
Julian Darby and Vassie Richardson were again elected, this 
time without opposition. Id. at A8.4 As a result of these

4 It is well established that a court may take judicial notice of any fact 
that is not subject to reasonable dispute and is capable of accurate and 
ready determination. See, e.g., Fed. R. Evid. 201; De Castro v. Board of 
Comm’rs, 322 U.S. 451, 463 (1944) (appellate court had “properly take[n] 
judicial notice” of election results); Brown v. Piper, 91 U.S. 37, 42 (1875) 
(“In this country, such [judicial] notice is taken of . . . the election and 
resignations of senators. . . . ”). Accordingly, courts routinely take judicial 
notice of post-trial elections and changes in representation in voting rights 
and other cases. See, e g., Winpisinger v. Watson, 628 F.2d 133, 138 n.28 
(D.C. Cir.), cert, denied, 446 U.S. 929 (1980); Zaldivar v. City of Los 
Angeles, 780 F.2d 823, 827 & n.3 (9th Cir. 1986); Southern Christian 
Leadership Conference v. Sessions, 56 F.3d 1281, 1288 n. 13 (11th Cir. 
1995), cert, denied, 516 U.S. 1045 (1996); Westwego Citizens for Better 
Gov't v. City of Westwego, 906 F.2d 1042, 1045 (5th Cir. 1990). Finally, 
appellee did not have an opportunity to present the 1998 election results to



6

elections in which three blacks have been elected to the 
Board, blacks now enjoy extra-proportional representation of 
25% (3/12) on the Board in a parish with only 20.1% black 
population and 17.6% black voting age population. App. 79a. 
The election of three black members thus completely refutes 
appellants’ repeated claim that the clearly “foreseeable 
effect” of the plan was to prevent any black candidates from 
being elected and that the white population will not vote for 
black candidates in Bossier Parish. See, e.g., U.S. Br. 17; A-I 
Br. 28.5

The Board subsequently sought a declaratory judgment 
from the three-judge District of Columbia court preclearing 
its proposed redistricting plan. The district court has now 
concluded on two separate occasions that the plan is free of 
discriminatory purpose or effect.6 See Reno v. Bossier Parish 
School Board, App. 29a-77a (“Bossier /”).

the district court as the election was held after the district court entered its 
decision on remand.

5 There is no competent evidence of racial bloc voting in any local 
Bossier Parish elections. Specifically, the Justice Department’s expert was 
concededly unable to find any racial bloc voting in any election for any 
Bossier Parish office, pursuant to either the “extreme case analysis [or] 
bivariate ecological regression analysis” endorsed by the Gingles plurality 
opinion. Thornburg v. Gingles, 478 U.S. 30, 52-53 (1986); J.A. 167-74. 
The only election where racial bloc voting was found was one “exogenous” 
state judicial race (held not just in Bossier Parish), which obviously 
reflects different voting patterns than those for local representative office. 
J.A. 165-67. See, e.g., Magnolia Bar Ass’n v. Lee, 994 F.2d 1143, 1149 (5th 
Cir.), cert, denied, 510 U.S. 994 (1993). Even in this single race, the “racial 
polarization” led to the black candidate receiving 35.7% of the vote in a 
parish with a 17.6% black voting age population. J.A. 518.

6 The district court faithfully applied the Arlington Heights analysis 
in both its initial decision and on remand. See, e.g., App. 5a-6a, 102a-105a 
(evidence pertaining to dilutive impact of plan); App. 6a-7a, 112a (history 
of discrimination); App. 7a, 108a, 11 la-112a (sequence of events leading 
up to decision); App. 7a, 85a (substantive departures from factors usually 
considered important); App. 7a-8a, 83a, 109a- 111a (alleged 
contemporaneous statements by Board members).

7

SUMMARY OF ARGUMENT
This appeal is nonjusticiable because no legally cogniza­

ble interest can be harmed by a redistricting plan that will not 
be used again. Further, the district court did not decide that 
§ 5 reaches only voting changes adopted for a retrogressive 
purpose. Indeed, the court below unequivocally declined to 
resolve this issue because it found that the facts demonstrat­
ing a “nonretrogressive, but nonetheless discriminatory, pur­
pose . . . are not present here.” App. 3a-4a (internal 
quotations omitted).

In any event, Section 5’s plain language demonstrates 
that the purpose inquiry under that statute relates exclusively 
to retrogressive intent. Section 5 requires a covered jurisdic­
tion to demonstrate that any voting change “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. . . . ” Since a 
change has the “effect” of “denying or abridging the right to 
vote” only if it causes retrogresssion, it has the “purpose” of 
“abridging” only if it is intended to cause retrogression. No 
principle of statutory construction or common usage would 
suggest that a solitary phrase modifying two objects in the 
same sentence could have a different meaning as to each 
noun.

This does not mean, as appellants believe, that § 5 fails 
to proscribe a purpose to dilute minority voting strength. It 
simply means that dilution is measured by a different 
benchmark than in a constitutional challenge, i.e., the existing 
redistricting system rather than a hypothetical alternative 
plan. Thus, just as in Bossier I, appellants impermissibly 
attempt to “shift the focus of § 5 from nonretrogression to 
vote dilution, and to change the § 5 benchmark from a 
jurisdiction’s existing plan to a hypothetical, undiluted plan." 
App. 37a-38a. The only difference here is that appellants seek 
to make the relevant § 5 question whether the purpose of a 
voting change is “vote dilution” relative to a “hypothetical, 
undiluted plan,” rather than relative to the existing plan. 
Thus, in appellants’ hands, § 5 is not a mechanism for 
protecting minority voters from stratagems designed to



8

weaken their electoral position, as Congress intended, but 
instead becomes a means for the Justice Department to 
impose its hypothetical minority “maximization” plan. Nor is 
there any basis for concluding that § 5 prohibits the “purpose” 
proscribed by the Constitution because there is no congruence 
between the Constitution and § 5, and because, even if the 
statute prohibits only retrogressive vote dilution, it still goes 
farther than the Fifteenth Amendment that it was intended to 
enforce.

Finally, there is also no basis for denying preclearance in 
a § 5 proceeding to a voting change that satisfies the non­
retrogression purpose standard of Section 5 on the grounds 
that it violates the Constitution. The dicta in Beer v. United 
States, 425 U.S. 130 (1976), particularly as subsequently 
construed, only confirms the obvious point that a reapportion­
ment plan which satisfies § 5 may be enjoined in a subsequent 
constitutional challenge. This result is also the only one 
consistent with the express language of § 5. Alternatively, 
even if constitutional questions are within the province of § 5 
courts, it is clear and conceded that the United States bears 
the burden of proving a constitutional violation.

ARGUMENT
I. THIS APPEAL IS NONJUSTICIABLE.

Appellants seek to have this Court opine on the legal 
validity of a redistricting plan that will never again be used in 
any election. Article III prevents such an advisory opinion as 
appellants lack standing and the case is now moot. It has long 
been recognized that the “case-or-controversy requirement [of 
Article III] subsists through all stages of federal judicial 
proceedings, trial and appellate.” Lewis v. Continental Bank 
Corp., 494 U.S. 472, 477 (1990). Accordingly, “[t]he standing 
Article III requires must be met by persons seeking appellate 
review, just as it must be met by persons appearing in courts 
of first instance.” Arizonans for Official English v. Arizona, 
520 U.S. 43, 64 (1997). Likewise, “Article III of the Constitu­
tion requires that there be a live case or controversy at the 
time that a federal court decides the case; it is not enough that

9

there may have been a live case or controversy when the case 
was decided by the court whose judgment we are reviewing.” 
Burke v. Barnes, 479 U.S. 361, 363 (1987). Therefore, Article 
III requires a case to be dismissed as moot “if an event occurs 
[pending review] that makes it impossible for the court to 
grant ‘any effectual relief whatever’ to a prevailing party.” 
Church o f Scientology v. United States, 506 U.S. 9, 12 (1992) 
(quoting Mills v. Green, 159 U.S. 651, 653 (1895)).

There is no case or controversy here because, regardless 
of whether the Court affirms or remands the lower court’s 
declaratory judgment preclearing the Board’s 1992 redistrict­
ing plan, that plan will not be used again. One month after 
appellants filed their jurisdictional statements in this Court, 
the last scheduled election ever to be held under the Board’s 
plan was conducted, and three black candidates were elected. 
The Board’s plan will not be utilized again because, under 
Louisiana law, the next Board election will not take place 
until 2002. J.A. 373 (La. Rev. Stat. § 17:52). By that time, 
new federal decennial census data will be available, and thus 
the Board will be required under state law and this Court’s 
one-person one-vote precedents to adopt a new apportionment 
plan. J.A. 406 (La. Rev. Stat. § 17:71.5). Accordingly, the 
current plan is already a dead letter, and if there is a remand, 
the Board will move to dismiss its complaint. In the terms of 
§ 5, the voting “practice” at issue here will never again be 
“enforced” by any official in Bossier Parish. 42 U.S.C. 
§ 1973c. See Watkins v. Mabus, 502 U.S. 954, 954-55 (1991); 
Hall v. Beals, 396 U.S. 45 (1969). Accordingly, as the parties 
“invoking federal jurisdiction,” appellants have failed to carry 
their burden of establishing that they have a “legally pro­
tected interest.” Lujan v. Defenders o f Wildlife, 504 U.S. 555, 
560-61 (1992). It is clear that appellants will not suffer 
“actual or imminent” injury under a plan that will never again 
be utilized, and thus they have no standing to invoke this 
Court’s jurisdiction. Id. at 560 (internal quotations omitted).7

7 For the same reason, this case is now moot and there is no relief that 
the Court can grant which will redress appellants’ purported injuries. See,



10

Consequently, just as it is now too late for appellants to 
challenge the Board’s redistricting plan under § 2 in district 
court, it is too late for them to bring their appeal.

Appellants speculate that a Board member might die or 
resign in the next two and a half years, necessitating the use 
of the challenged plan to fill that vacancy. Appellants have 
offered no evidence that a vacancy on the Board is “certainly 
impending” or even likely. Lujan, 504 U.S. at 564 n.2 (inter­
nal quotations omitted). When a case involves uncertain or 
“contingent future events that may not occur as anticipated, or 
indeed may not occur at all,” Article Ill’s imminence require­
ment is not satisfied. Lewis, 494 U.S. at 480 (internal quota­
tions omitted). Likewise, appellants’ suggestion that the 
Board will violate its state law duty to engage in timely 
redistricting after the 2000 census is “unadorned speculation.” 
Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 44 
(1976). In any event, they are flatly wrong in suggesting that, 
if no new redistricting plan is developed, then the grossly 
malapportioned 1990s plan could, much less will, be used for 
the 2002 elections. U.S. Opp. 1; J.A. 406.

Unable to identify any legally cognizable interest in this 
“case or controversy,” appellants claim that Article III is 
satisfied because a different court in a different case “might” 
grant different relief they might be “interested” in, i.e., 
invalidating the 1998 elections and holding new elections 
under Some unidentified “valid plan.” U.S. Opp. 2; A-I Opp. 
3. Appellants hypothesize a future lawsuit in a local Section 5 
court which would somehow invalidate the 1998 elections. 
Although it is true that a local district court, as a corollary 
power, may sometimes order new elections where the voting 
procedure used in that election had not been precleared, see, 
e.g.. Berry v. Doles, 438 U.S. 190, 192 (1978), it plainly has 
no power or jurisdiction to invalidate election results where,

e.g., Burke, 479 U.S. at 363; Oil, Chem. and Atomic Workers v. Missouri, 
361 U.S. 363, 371 (1960); Northeastern Fla. Chapter of Associated Gen. 
Contractors v. Jacksonville, 508 U.S. 656, 669-70 (1993) (O’Connor, J„ 
dissenting).

1 1

as here, the new plan had been duly precleared. If appellants 
are suggesting that the local district court could invalidate 
elections held under an erroneously precleared plan, that is 
impossible as it would require the local district court to 
decide whether the plan was correctly or erroneously pre­
cleared, which it plainly may not do.8

Appellants finally argue that the 1990s redistricting plan 
somehow injures them because, absent reversal, it will serve 
as the retrogression “benchmark” for the 2000 redistricting 
plan. But appellants cannot rationally explain why this mat­
ters to them because, if the 1990s plan is somehow elimi­
nated, then the 1980s plan will be the benchmark.9 Abrams v. 
Johnson, 521 U.S. 74, 95-97 (1997). All agree that there is no 
difference between the 1980s and 1990s Board plan since they 
contain materially the same racial percentages and neither has 
a black majority district; so appellants have no cognizable 
interest in substituting one retrogression benchmark for an 
identical one. App. 88a. In any event, the only legally cogni­
zable interest appellants have in the 1990s plan is whether it 
injures any group’s “right to vote." 42 U.S.C. § 1973c. Since 
the 1990s redistricting plan does not potentially injure that 
interest, the Court cannot engage in hypothetical adjudication 
of a non-controversy because the collateral consequences of 
that decision are of hypothetical interest in a future proceed­
ing.10 Spencer v. Kemna, 118 S. Ct. 978, 984-87 (1998).

8 This Court has repeatedly emphasized that local Section 5 district 
courts are “strictly limited” to addressing “(t]he only issue” over which 
they have jurisdiction, i.e., “whether a particular state enactment is subject 
to the provisions of the Voting Rights Act, and therefore must be submitted 
for approval before enforcement.” Allen v. State Bd. of Elections, 393 U.S. 
544, 558-59 (1969); accord Lopez v. Monterey County, 519 U.S. 9, 21 
(1996); Perkins v. Matthews, 400 U.S. 379, 383 (1971).

9 There will be no new plan to serve as a benchmark because, as 
noted, neither the court below nor the local “Allen” court could order new 
elections or a new plan.

10 If mootness is found, vacatur under United States v. Munsingwear, 
Inc., 340 U.S. 36 (1950), is not appropriate in this unique context.



12

II. THE DISTRICT COURT DID NOT RULE THAT 
SECTION 5 REACHES ONLY RETROGRESSIVE 
INTENT.
In its first Bossier opinion, this Court expressly left 

“open for another day the question whether the § 5 purpose 
inquiry ever extends beyond the search for retrogressive 
intent.” App. 45a. As appellants sometimes admit, the district 
court expressly “declined” to resolve this legal question. U.S. 
J.S. 12 (emphasis added). It did so because it was unnecessary 
to its decision since it had made the factual finding that there 
was no evidence “ ‘that the Board enacted the [redistricting] 
plan with some non-retrogressive, but nevertheless discrimi­
natory, “purpose.” ’ ” App. 3a n.2 (quoting Bossier /, App. 
46a).

First, the lower court established that it was fully aware 
that the Court had “le[ft] for another day the question” 
whether § 5 prohibits actions taken with non-retrogressive

Munsingwear provides that, in certain circumstances, the judgment in a 
moot case should be vacated when this “extraordinary remedy” is 
necessary to relieve the parties of the collateral consequences of the 
judgment below and the losing party was unable to obtain appellate review. 
U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 26 
(1994). Because no collateral consequences will flow from the decision of 
the lower court, the basic rationale of the Munsingwear doctrine has no 
application here. In addition to the fact that the 1990s plan will never again 
be used, the lower court’s judgment will have no preclusive effect in future 
cases. Collateral estoppel cannot be offensively employed against the 
United States, and the decision of the district court in this case is not 
binding precedent for other courts. United States v. Mendoza, 464 U.S. 154, 
160-61 (1984); In re Korean Air Lines Disaster, 829 F.2d 1171, 1176 (D.C. 
Cir. 1987), aff'd sub nom. Chan v. Korean Air Lines, Ltd., 490 U.S. 122 
(1989). Furthermore, appellants could have preserved the justiciability of 
the case by seeking a stay pending appeal, but failed to do so. Cf. Lopez v. 
Monterey County, 516 U.S. 1104 (1996). It is their “burden, as the party 
seeking relief . . .  to demonstrate not merely equivalent responsibility for 
the mootness, but equitable entitlement to the extraordinary remedy of 
vacatur.” U.S. Bancorp, 513 U.S. at 26. It is appellants’ own fault that they 
are unable to obtain appellate review because they slept on their rights. Id. 
at 24-26.

13

discriminatory intent. App. 3a. It then “decline[d]” to “answer 
the question the Court left for another day” because “the 
record will not support a conclusion that extends beyond the 
presence or absence of retrogressive intent.” App. 3a 
(emphasis added). While the court stated that it could “imag­
ine a set of facts that would establish a ‘non-retrogressive, but 
nevertheless discriminatory, purpose[,]’ ” it found that “those 
imagined facts are not present here.” App. 3a-4a (emphasis 
added).

Thus, the district court plainly stated that resolution of 
the question whether § 5 prohibits a discriminatory, but non- 
retrogressive, purpose was unnecessary to decide this case 
because the facts supporting any such a discriminatory pur­
pose were “not present here.” It did not hold, as appellants 
maintain, that if such discriminatory purpose were “present 
here,” the Board would nonetheless be entitled to pre- 
clearance under § 5 because that statute proscribes only “ret­
rogressive” intent.

The rest of the court’s analysis further confirms that it 
was analyzing the question of “non-retrogressive, but nev­
ertheless discriminatory, ‘purpose.’ ” First, the court plainly 
stated that, as it had already ruled in Bossier I, the Board had 
the “difficult ] . . . burden to prove the absence of discrimi­
natory intent.” App. 5a (first emphasis in original, second 
emphasis added). Next, the court analyzed the Board’s rea­
sons for adopting the Police Jury plan in preference to the 
NAACP Plan, not whether the Board had adopted the Police 
Jury plan for the purpose of putting minorities in a worse 
position than they enjoyed under the Board’s 1980s redistrict­
ing plan. Thus, it squarely held that “the Board’s resort to the 
pre-cleared Jury plan (which it mistakenly thought would 
easily be pre-cleared) and its focus on the fact that the Jury 
plan would not require precinct splitting, while the NAACP 
plan would, were ‘legitimate, nondiscriminatory, motives.’ ” 
App. 5a. Again, then, the court was holding that the Board’s 
“motives” for adopting the Jury plan in preference to the 
NAACP plan were “legitimate [and] non-discriminatory” 
because the Police Jury plan better furthered the race-neutral



14

policy of preserving precincts than the NAACP plan. Compar­
ing the relative virtues of the Police Jury plan and the maxi­
mizing alternative proposed by the NAACP makes no sense if 
the court were analyzing only whether the Board’s purpose 
was to cause retrogression compared to the existing plan. See 
supra pp. 7-8. Rather, this is classic “discriminatory purpose” 
analysis used in all Arlington Heights v. Metropolitan Hous. 
Dev. Corp., 429 U.S. 252 (1977), and employment cases -  
i.e., whether the minority applicant (or integrative alternative) 
was rejected for racial reasons or for “legitimate, non- 
discriminatory reasons.” Furnco Constr. Corp. v. Waters, 438 
U.S. 567, 576 n.8 (1978).

Similarly, when the court analyzed the impact of the 
proposed plan under Arlington Heights and this Court’s 
remand, the district court did not look only at “whether the 
Jury plan bears more heavily on blacks than the pre-existing 
plan.” App. 5a. Rather, after disposing of private appellants’ 
argument that the Jury plan had such a retrogressive effect, 
the court analyzed the other “allegedly dilutive impacts of the 
Jury plan” that appellant had offered “in support of its dis­
criminatory intent argument.” App. 6a (emphasis added). 
Of course, as the district court was well aware, this Court in 
Bossier I had used the term “dilutive impact[ ]” to denote a 
situation where a jurisdiction chooses a plan that “dilut[esj” 
black votes as compared to a “reasonable alternative vo­
ting . . . benchmark” and in contradistinction to a plan which 
had a “retrogressive ‘effect.’ ” App. 37a. See also App. 
lOa-lla (Silberman, J., concurring). Thus, as instructed by 
this Court on remand, the district court was analyzing whether 
the choice of the allegedly “dilutive” alternative reflected a 
“discriminatory intent.”

In this regard, the court found that the Board’s plan could 
have reflected an impermissible purpose if it had “deliber­
ately attempted to break up voting blocks before they could 
be established or otherwise to divide and conquer the black 
vote” by, for example, “fail[ing] to respect communities of 
interest and cutting across attendance boundaries.” App. 6a. 
In this case, however, it found “an absence of such evidence 
in this record” and thus the discriminatory purpose assertion

15

to be “too theoretical, and too attenuated, to be probative.” 
App. 6a. Examining such evidence of “fragmentation” is 
standard analysis in determining whether a jurisdiction was 
acting with discriminatory purpose. See Johnson v. De 
Grandy, 512 U.S. 997, 1015 (1994). Finally, the district 
court’s opinion clearly stated that it was adhering to the same 
“method of analysis” as its “earlier” decision. App. 5a. The 
earlier decision plainly focused exclusively on whether the 
NAACP plan was rejected for impermissible racial reasons, 
but did not focus on retrogressive intent. App. 105a-114a."

To be sure, the majority opinion adverts on several occa­
sions to the Board’s “retrogressive intent.” App. 6a-7a. In 
context, however, this should not be read as indicating that 
the district court somehow had made suh silentio the legal 
determination that only retrogressive intent violates the pur­
pose prong of § 5. Rather, these statements must be read in 
conjunction with the district court’s threshold decision that 
there was no evidence of “non-retrogressive, but nonetheless 
discriminatory, purpose,” App. 3a, and its incorporation of its 
prior findings that the Board’s “change was undertaken with­
out a discriminatory purpose.” App. 105a. Given the absence 
of such discriminatory purpose evidence, the court below 
quite naturally sometimes phrased its conclusions in terms of 
retrogressive intent. Since, in this opinion, the court had 11 *

11 The concurring opinion emphasized in this regard that the court
was again analyzing whether “ ‘the Board has failed to provide an 
adequate reason explaining why it declined to act on a proposal featuring 
two majority-black districts.’ ” App. 9a (quoting App. 113a.). It noted that 
the court had both considered “dilutive impact” and applied the Arlington 
Heights framework in its first opinion -  contrary to appellants' 
representation to this Court in the first Bossier appeal. App. 10a. The 
concurrence then affirmatively stated that it was engaging in such analysis 
again, while adding only that it was “now” dealing expressly with the 
Board’s compliance with the outstanding school desegregation decree. 
App. 1 la. Thus, the concurrence further confirms that the district court’s 
opinion was simply fleshing out its first discriminatory purpose analysis, 
and was not substituting some new legal standard that focused exclusively 
on retrogressive intent.



16

already found that rejection of the NAACP plan was done 
pursuant to “legitimate, non-discriminatory motives,” it did 
not need to reiterate that finding when it was dealing with 
each of the separate pieces of the Arlington Heights evidence. 
This is particularly true since, when considering each of the 
Arlington Heights factors, it incorporated by reference the 
court’s earlier decision -  in which it plainly did find that the 
plan was not motivated by discriminatory intent. See App. 
6a-7a. Finally, as noted, the court often stated its conclusions 
in terms of “discriminatory” purpose, not “retrogressive” pur­
pose. App. 5a; App. 6a (appellants had failed “to rebut the 
non-discriminatory reasons advanced by the Board” for 
adopting its plan).12

In short, even if the court had not expressly refused to 
resolve the legal question of § 5’s scope, it is quite implausi­
ble that it would have resolved the legal issue that this Court 
made clear was important and unsettled without discussing in 
any way the reasons for adopting this position. In any event, 
if the district court did conclude that § 5 reaches only retro­
gressive intent, this is a correct interpretation of that statute.

III. SECTION 5 REACHES ONLY RETROGRESSIVE 
INTENT.

As in Bossier I, appellants advance an interpretation of 
§ 5 that studiously and necessarily avoids the statute’s plain 
language and this Court’s consistent interpretation of that 
language, as well as the statute’s unique structure and inher­
ently “limited substantive goal.” Bush, 517 U.S. at 982.

First, appellants’ contention that § 5 prohibits a non- 
retrogressive purpose is irreconcilable with the statute’s plain 
language. Section 5 provides in pertinent part that a covered 
jurisdiction is entitled to a declaratory judgment preclearing a 
proposed voting change where the practice at issue “does not

12 Similarly, while the court did say that the Board’s action reflected a 
“determination to maintain the status quo,” it is unclear whether the status 
quo referred to was the previously enacted Police Jury plan or the Board’s 
own 1980s rcdistricting plan. App. 7a.

17

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. § 1973c. Under the statute, then, preclearance will 
be denied if a proposed change has either (1) the “pur­
pose . . .  of denying or abridging the right to vote on account 
of race or color” or (2) “the effect of denying or abridging the 
right to vote on account of race or color.” It is firmly estab­
lished and undisputed that a proposed change has the “effect 
of denying or abridging the right to vote” only if it has 
retrogressive effect on minority voters.13 Thus, a jurisdiction 
has the “purpose . . .  of denying or abridging the right to 
vote” only if its purpose is to retrogress.

A contrary conclusion can only be reached if one 
assumes that the phrase “denying or abridging the right to 
vote on account of race or color” has a different meaning as it 
relates to “purpose” and “effect.” Such an interpretation 
would be absurd, as no principle of common usage, grammar, 
or logic would suggest a solitary phrase modifying two 
objects in the same sentence could have a different meaning 
as to each noun. Not surprisingly, appellants have not cited a 
single case where this Court has endorsed such a counterintui­
tive and anomalous method of construing a statute. If the 
phrase “abridging or denying the right to vote” refers to 
retrogression as it relates to the term “effect,” it inexorably 
follows that it must have the same meaning as applies to the 
term “purpose.”14

13 See, e.g., Bossier I, App. 46a (“[W]e have adhered to the view that 
the only ‘effect’ that violates § 5 is a retrogressive one.”); Beer, 425 U.S. at 
141; City of Lockhart v. United States, 460 U.S. 125, 134 (1983); Shaw v. 
Reno, 509 U.S. 630, 654 (1993) {"Shaw /”); Holder v. Hall, 512 U.S. 874, 
883 (1994); Miller v. Johnson, 515 U.S. 900, 926 (1995) (“ ‘[T]he purpose 
of § 5 has always been to insure that no voting-procedure changes would be 
made that would lead to a retrogression in the position of racial 
minorities. . . . ’ ”) (quoting Beer, 425 U.S. at 141); Bush, 517 U.S. at 
982-83; Abrams, 521 U.S. at 97.

14 See, e.g., BankAmerica Corp. v. United States, 462 U.S. 122, 129 
(1983) (“[W]e reject as unreasonable the contention that Congress intended 
the phrase ‘other than’ to mean one thing when applied to ‘banks’ and



18

Appellants simply ignore this dispositive point and make 
no attempt to explain how “denying or abridging” could 
possibly dramatically shift meanings within the same sen­
tence. In light of this implicit concession that there is no 
rational construction of § 5’s actual language which reaches a 
purpose other than retrogression (at least absent reversal of 
the Court’s precedent on retrogressive effect -  which no one 
seeks), the Court’s inquiry on this issue is complete. For, 
“[w]hen the words of a statute are unambiguous, then this 
first canon is also the last: ‘judicial inquiry is complete.’ ” 
Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 254 (1992) 
(quoting Reuben v. United States, 449 U.S. 424, 430 (1981)). 
See also Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) 
(“Our inquiry must cease if the statutory language is unam­
biguous and the statutory scheme is coherent and consistent.”) 
(internal quotations omitted).15

Thus, appellants are reduced to arguing that, in contexts 
other than Section 5, § 5’s language could encompass a 
discriminatory, albeit nonretrogressive, purpose. Specifically, 
appellants’ central theme is that under the Constitution and 
§ 2, a jurisdiction may dilute minority voting strength without 
putting minorities in a worse position than they previously 
enjoyed and thus a jurisdiction may have a purpose to dilute 
minority voting strength without intending to place minorities 
in a worse position. U.S. Br. 22-23; A-I Br. 26. Therefore, the

another thing as applied to ‘common carriers,’ where the phrase 'other 
than’ modifies both words in the same clause.”); Mohasco Corp. v. Silver, 
447 U.S. 807, 826 (1980).

15 While the Voting Rights Act’s legislative history is irrelevant for 
this reason, we nevertheless note that there is nothing in that history
suggesting the absurd English usage appellants desire. So far as we can 
discern or appellants argue, nothing in the 1982 legislative history suggests 
that the phrase, “denying or abridging" changes meaning when that phrase 
modifies “purpose” or otherwise indicates that there was some fundamental 
disconnect between “purpose” and “effect” in § 5. To the contrary, the 
legislative history treats purpose and effect interchangeably, in the sense 
that it uses the same adjective to describe their scope. See, e.g., S. Rep. No. 
417, 97th Cong., 2d Sess. 18 (1982).

19

argument goes, a jurisdiction may have the “purpose . . .  of 
abridging the right to vote” under § 5 even if there is no intent 
to increase discrimination against minorities.

Even if this assertion were not contrary to the plain 
language of § 5, the attempt to analogize vote dilution under 
the Constitution to § 5 dilution ignores the fact that, as the 
Court has often noted, dilution is necessarily a relative con­
cept.16 Accordingly, the dilution concepts developed in the 
context of constitutional and § 2 lawsuits to beneficially alter 
existing electoral practices cannot be transferred to the inher­
ently different context of § 5, which is intended to “freez[e] 
election procedures” against harmful changes to that system. 
Miller v. Johnson, 515 U.S. 900, 926 (1995) (internal quota­
tions omitted). In the context of § 2 or constitutional chal­
lenges to alter existing systems, dilution necessarily requires 
a plaintiff to “postulate a reasonable alternative voting prac­
tice to serve as the benchmark ‘undiluted’ voting practice.” 
Bossier I, App. 37a. See also Holder v. Hall, 512 U.S. 874, 
881 (1994) (plurality); id. at 950-51 (Blackmun, J., dissent­
ing). The argument is that the plan dilutes minority voting 
strength compared to the hypothesized alternative: a single­
member districting plan compared to an at-large scheme or a 
potential single-member redistricting plan compared to the 
one adopted. See Holder, 512 U.S. at 880; Thornburg v. 
Gingles, 478 U.S. 30, 88 (1986); Rogers v. Lodge, 458 U.S. 
613, 616 (1982). If the existing plan was deliberately con­
ceived or maintained in order to achieve that dilutive result, it 
is unconstitutional, but may violate § 2 even if that dilutive 
harm is unintended. City o f Mobile v. Bolden, 446 U.S. 55, 
62-63 (1980); Gingles, 478 U.S. at 44.

The benchmark for measuring whether a minority group’s 
voting strength is relatively diluted under § 5 is entirely

16 See, e.g., Bossier l, App. 37a. (‘‘[T]he very concept of vote dilution 
implies -  and, indeed, necessitates -  the existence of an ‘undiluted’ 
practice against which the fact of dilution may be measured.”); Holder, 512 
U.S. at 880 (“ ‘The phrase vote dilution itself suggests a norm with respect 
to which the fact of dilution may be ascertained.’ ”) (quoting Gingles, 478 
U.S. at 88) (O’Connor, J., concurring in judgment).



20

different, and necessarily so. Dilutive effect is not assessed by 
a comparison of the proposed change to a hypothetical “rea­
sonable alternative,” but by a comparison to the existing 
system now being changed in the manner that triggers § 5. 
Because § 5 deals only with changes to parts of an existing 
voting system, it is inherently not a weapon that can be used 
effectively to alter or improve an unchanged status quo. 
Deliberate maintenance of an at-large system for purely dis­
criminatory reasons does not offend § 5 and cannot be 
remedied by that statute. Beer, 425 U.S. at 128. Moreover, the 
only § 5 remedy is to deny the proposed change and thus 
restore the status quo ante. Thus, § 5 is a purely reactive 
statute that is designed to “freez[e] election procedures” 
against erosion; improvements to the discriminatory status 
quo must occur through § 2 or constitutional challenges to 
that system. “Because § 5 focuses on ‘freezing] election 
procedures,’ a plan has an impermissible ‘effect’ under § 5 
only if it ‘would lead to a retrogression in the position of 
racial minorities with respect to their effective exercise of the 
electoral franchise.’ ” Bossier I, App. 35a (quoting Beer, 425 
U.S. at 141). Thus, a nonretrogressive change “can hardly 
have the ‘effect’ of diluting or abridging the right to vote on 
account of race within the meaning of § 5.” Beer, 425 U.S. at 
141 (emphasis added). Rather, a voting change “deni[es] or 
abridg[es] the right to vote” under § 5 only if it dilutes 
minorities’ group voting strength compared to their “ ‘there­
tofore enjoyed voting rights.’ ” City o f Richmond v. United 
States, 422 U.S. 358, 378 (1975) (quoting Gomillion v. Light- 
foot, 364 U.S. 339, 347 (I960)). This is an entirely different 
dilution inquiry than that required under § 2, even though the 
statutory language of the two sections is virtually identical. 
See 42 U.S.C. § 1973(a) (no voting procedure may “result in a 
denial or abridgement of the right . . .  to vote on account of 
race or color. . . . ”); see 128 Cong. Rec. 14292 (daily ed. 
June 18, 1982) (remarks of Sen. Kennedy).

In short, because of the “different evils” at which they 
are addressed, in asking whether a redistricting or at-large 
system has actually abridged or diluted minority voting 
strength, one gives an entirely different answer under § 5 than

21

would be given in a case involving a constitutional or § 2 
challenge to such a system. Bossier I, App. 33a. Just as the 
standard for whether abridgment or dilution exists is different 
under § 5 than under the Constitution or § 2, so too is the 
standard for determining whether a local government intended 
for that abridgement or dilution to exist. A jurisdiction obvi­
ously cannot possess a purpose of diluting minority voting 
strength, as that concept is understood under § 5, unless it 
intends to dilute minority voting strength as that concept is 
understood under § 5. This does not mean, as appellants 
believe, that § 5 fails to proscribe a purpose to dilute minority 
voting strength. It simply means that dilution is measured by 
a different benchmark, i.e., the existing system rather than 
any “reasonable alternative.”

Appellants nevertheless assert that § 5 proscribes a pur­
pose to deny or abridge the right to vote relative to another 
available alternative -  such as the NAACP maximization plan 
here. While this is the test for abridgement and dilution under 
the Constitution and § 2, it is plainly not under § 5. Since the 
only harm proscribed by § 5 is less minority voting power 
than the status quo ante, a government cannot violate § 5 
unless its purpose is to cause that harm. The fact that a 
jurisdiction’s purpose is to cause the relative harm proscribed 
by the Constitution -  less minority voting power than a 
reasonably available alternative -  therefore affords no basis 
for finding a § 5 violation. Since § 5 is designed to insure 
against changes that make the status quo worse, the relevant 
question is not whether its purpose is to improve the status 
quo ante as much as a reasonably available alternative.

Thus, just as in Bossier /, appellants impermissibly 
attempt to “shift the focus of § 5 from nonretrogression to 
vote dilution, and to change the § 5 benchmark from a 
jurisdiction’s existing plan to a hypothetical, undiluted plan.” 
App. 37a-38a. The only difference here is that appellants seek 
to make the relevant § 5 question whether the purpose of a 
voting change is “vote dilution” relative to the “hypothetical, 
undiluted plan,” rather than “nonretrogression.” But since 
“purpose” and “effect” modify the same language in § 5, 
attempting to transfer the § 5 purpose inquiry to a different



22

benchmark is just as contrary to the plain language and 
overall structure of that statute.

In short, in light of both its structure and language, it is 
quite impossible to interpret § 5 to prohibit a nonretrogressive 
purpose so long as the statute does not prohibit a non­
retrogressive effect. Recognizing this, although appellants 
cannot directly argue that stare decisis permits overruling 
Beer and its numerous progeny, they nevertheless advance 
arguments that are necessarily premised on the notion that § 5 
prohibits discriminatory, albeit nonretrogressive, effects and 
that Beer was wrongly decided.

In their most obvious assault on Beer, appellants’ princi­
pal submission is that § 5’s central purpose is to prevent the 
implementation of any new voting practice that “perpetuates” 
or “maintains” an existing discriminatory system. U.S. Br. 
22-24; A-I Br. 24. This assertion, of course, cannot be recon­
ciled with the established principle that § 5 reaches only 
retrogressive effect and, indeed, precisely echoes the dissent­
ing opinions’ arguments in both Beer and Lockhart, the two 
cases initially establishing that principle. Beer, 425 U.S. at 151 
(Marshall, J., dissenting); City o f Lockhart v. United States, 
460 U.S. 125, 145 (1983) (Marshall, J., concurring in part and 
dissenting in part). The Court in Lockhart expressly acknowl­
edged that the new electoral system “may . . . remain[ ] 
discriminatory,” but was “entitled to § 5 preclearance” 
because it “did not increase the degree of discrimination 
against blacks.” Lockhart, 460 U.S. at 134 (emphasis added). 
Appellants are therefore flatly wrong in arguing that § 5’s 
goal was to prevent new electoral systems from “remaining 
discriminatory,” even if they did not “increase the degree of 
discrimination against [minorities].” More generally, since 
the voting procedures which § 5 intended to “freeze” were 
often intentionally discriminatory in 1965, § 5 necessarily 
contemplated and tolerated changes which perpetuated and 
froze that discriminatory status quo, until they were undone 
by § 2 and the Constitution. Bossier /, App. 34a; Miller, 515 
U.S. at 926; Georgia v. United States, 411 U.S. 526, 538 
(1973). It was for this reason that the Court rejected Justice

23

Marshall’s argument that maintenance of the status quo 
offended § 5 and held that § 5 reached only changes with a 
retrogressive effect.17 * See Lockhart, 460 U.S. at 145; Beer, 
425 U.S. at 141.

The fact that construing § 5 to reach only a retrogressive 
purpose would also tolerate changes which maintain the sta­
tus quo thus provides no basis for rejecting that construction 
of the statute. Since § 5 authorizes changes that actually 
maintain the status quo, the fact that a change was intended to

17 Although stare decisis principles demand fidelity to Beer and 
Lockhart, we nonetheless note that those cases were entirely correct in 
concluding that § 5 did not in any way prohibit maintenance of the status 
quo. To the contrary, Congress explicitly authorized changes under which 
minority voting power was “ ‘not affected.’ ” Beer, 425 U.S. at 141 
(quoting H R. Rep. No. 94-196, at 60). Similarly, Justice Brennan 
emphasized that the “fundamental objective of § 5 [is]. . .  the protection of 
present levels of voting effectiveness for the black population.” Richmond, 
422 U.S. at 388 (Brennan, J., dissenting) (emphasis added). The very fact 
that § 5 applies only to changes to the status quo demonstrates that it could 
not have been intended to outlaw maintenance of the status quo. There is 
no better way to perpetuate a discriminatory system than not changing 
anything -  a result necessarily contemplated by § 5. In Beer, for example, 
the submitting jurisdiction’s attempt to maintain two at-large seats was not 
prohibited by § 5, even if this was deliberately done to “cancel out or 
minimize” minority voting strength compared to what they would enjoy 
under a single-member system. White v. Regester, 412 U.S. 755, 765 
(1973). See Beer, 425 U.S. at 138-39. Finally, appellants note correctly that 
Congress in 1965 and 1982 was concerned with “ ‘extraordinary 
stratagem[s]’ ” to discriminate against minorities beyond the 
discriminatory “tests and devices" outlawed by the “Act itself.” U.S. Br. 
23-24 (citing South Carolina v. Katzenbach, 383 U.S. 301, 335 (1966)). 
This self-evident point explains why § 5 presumptively suspends all voting 
procedures -  in addition to the permanently suspended “tests and devices” 
outlawed “by the Act itself’ -  but it hardly says anything about the
substantive standard that should be used to adjudicate whether those new 
voting practices violate § 5.



24

maintain the status quo cannot somehow suggest any ille­
gality.18

Since the United States cannot reconcile its nonretrogres- 
sive purpose argument with Beer's holding on retrogressive 
effect, it argues instead that Beer was not actually engaging in 
an act of statutory interpretation. Rather, the Beer Court made 
a policy decision about the desirability of prohibiting discrim­
inatory “effects” and substituted its policy judgment for that 
of Congress. Specifically, the United States argues that Beer 
artificially circumscribed the plain language of § 5’s “effect” 
because it was concerned that voting rights laws which pro­
hibited a “discriminatory effect” alone were quite trouble­
some, and could lead to proportional representation. U.S. Br. 
29-31. It invites the Court to make a different policy decision 
than the Beer Court because all agree that a racially discrimi­
natory purpose is always bad. But, of course, this Court is not 
free to use different methods of statutory construction 
depending on how desirable it believes congressional policy 
decisions to be. The Court cannot interpret “abridge” to mean 
one thing when modified by “purpose” because that creates an 
uncontroversial policy result, but to mean another thing when 
modified by “effect” because that creates a policy that the 
Court believes is disquieting. Brogan v. United States, 118 
S. Ct. 805, 811-12 (1998) (“Courts may not create their own 
limitations on legislation, no matter how alluring the policy 
arguments for doing so. . . . ”). Rather, the Court must

18 Similarly, the United States’ assertion that the “plain language” of 
§ 5 reaches changes with a nonretrogressive purpose is a frontal assault on 
Beer and the consistent decisions following it. The United States asserts 
that a “purpose . . . o f . . . abridging the right to vote on account of race” 
includes intentionally diluting minority voting power. U.S. Br. 18. But, 
under Beer, “abridg[e]” means retrogression or, stated another way, it 
means only a dilution of minority voting power as compared to the present 
system, but not dilution relative to a “hypothetical, undiluted alternative." 
Just as a nonretrogressive change cannot have the “effect of diluting or 
abridging the right to vote on account of race” unless it diminishes 
minorities’ current voting power, it cannot have the purpose of doing so 
unless it intends to diminish that existing power.

25

interpret the law pursuant to its language and in a manner that 
renders the “statutory scheme . . . coherent and consistent.” 
Robinson, 519 U.S. at 340. Nor, of course, is there any hint in 
Beer that the Court was in any way concerned with the policy 
implications of interpreting “effect” broadly, much less that 
the Court failed to faithfully interpret the congressional stat­
ute because of these concerns.19 This is hardly surprising 
since the consequence of interpreting the § 5 “effect” prong 
“broadly” would have simply imposed on covered jurisdic­
tions the “results test” of amended § 2. This is presumably not 
a policy which unduly troubled the Beer Court, since the same 
Court had decided White v. Regester, 412 U.S. 755 (1973), 
from which the § 2 “results” test was derived.

The United States’ final argument is that § 5 tracks the 
language of the Fifteenth Amendment, which prohibits inten­
tional discrimination, and, for this and other reasons, § 5 
simply must go “as far as the Constitution.” U.S. Br. 24 
(quoting Bossier I, App. 57a (Breyer, J., concurring))

19 Footnote 8 in Beer, to which the United States refers, simply 
reaffirms that there is no constitutional right to proportional representation 
and then notes, with seeming approval, that the redistricting plan gave 
black voters roughly proportional representation when compared to the five 
single-member seats which were properly the subject of § 5 scrutiny. Beer, 
425 U.S. at 151 n.8; U.S. Br. 30. Moreover, contrary to the United States’ 
assertion, the Court has never said that § 5 “imposes substantial ‘federalism 
costs’ ” because a nonretrogressive “effect" test would invalidate 
constitutional practices. Miller, 515 U.S. at 926; U.S. Br. 31. Rather, those 
costs are created by requiring sovereign “conquered jurisdictions” to come 
to Washington, D.C. to disprove their presumed guilt -  costs which exist 
regardless of how “effect” is interpreted and which have been noted by the 
Court after § 5 was interpreted to reach only retrogressive effect. South 
Carolina v. Katzenbach, 383 U.S. 301, 359 (1966) (Black, J„ dissenting); 
Miller, 515 U.S. at 926. If troubling federalism costs were imposed by 
effects tests that prohibited constitutional actions, both § 2 and Title VII of 
the 1964 Civil Rights Act would impose such costs, but the Court has never 
suggested that those statutes impose the sort of federalism problems 
created by § 5, even though the latter reaches only retrogressive effect. 
Griggs v. Duke Power Co., 401 U.S. 424 (1971).



26

(emphasis in original). This assertion is flatly wrong on a 
number of levels.

First, § 5’s use of language similar to the Fifteenth 
Amendment clearly is not intended to incorporate the Fif­
teenth Amendment standard, for discriminatory purpose or 
otherwise. As reflected in the fact that Section 2 also tracks 
the Fifteenth Amendment by prohibiting a “denial or abridg­
ment of the right to vote on account of race,” Congress did 
not intend by using that language to incorporate any sort of 
discriminatory purpose standard. Cf U.S. Const., amend. XV. 
The legislative history goes out of its way to confirm this. “It 
is patently clearly [sic] that Congress has used the words ‘on 
account of race or color’ in the Act to mean ‘with respect to’ 
race or color, and not to connote any required purpose of 
racial discrimination.” S. Rep. No. 417, 97th Cong., 2d Sess. 
28 n.109 (1982) (“S. Rep.”).

More to the point, in 1982, it seemed quite probable -  if 
not definitively settled -  that the Fifteenth Amendment did 
not reach any form of vote dilution, intentional or otherwise. 
Yet the 1982 Congress plainly did want to render dilution 
mechanisms -  such as redistricting plans -  subject to § 5 
review. See U.S. Br. 23. The plurality in Mobile, which was 
the object of extraordinary focus by the 1982 Congress, seem­
ingly held that the Fifteenth Amendment reached only abridg­
ments of the “right to vote” -  i.e., access to the ballot -  rather 
than dilution of a group’s voting power by redistricting 
schemes and the like.20 Thus, Congress could not have 
intended to incorporate the Fifteenth Amendment standard by 
using similar language, otherwise it would run the serious risk 
of limiting Section 5’s coverage to the denial or abridgement 
of the right to cast a vote, rather than to dilution of group

20 See Mobile, 446 U.S. at 65 (plurality) (“Having found that Negroes 
in Mobile ‘register and vote without hindrance,’ ” the Court concluded the 
Fifteenth Amendment had not been violated); see id. at 84 n.3 (Stevens, J., 
concurring in judgment); Rogers, 458 U.S. at 619 n.6 (“With respect to the 
Fifteenth Amendment, the [Mobile] plurality held that the Amendment 
prohibits only direct, purposefully discriminatory interference with the 
freedom of Negroes to vote.”).

27

voting power. The Court has yet to resolve whether the 
Fifteenth Amendment does reach vote dilution. Voinovich v. 
Quilter, 507 U.S. 146, 159 (1993).

For the same reason, even if § 5 prohibits only a retro­
gressive purpose, it still goes “as far as” -  indeed, beyond -  
the Fifteenth Amendment as currently understood. A redis­
tricting plan which intentionally fragments black concentra­
tions may not violate the Fifteenth Amendment (and the 1982 
Congress had grave doubts that it could), while such a plan 
would violate § 5 if the fragmentation was designed to cause 
retrogression. Thus, whatever meaning is assigned to “pur­
pose” under § 5, either one goes “as far as” -  indeed, farther -  
than the Fifteenth Amendment, especially as understood by 
the 1982 Congress.

Moreover, while appellants assume that a prohibition of 
retrogressive purpose is necessarily a more “narrow” require­
ment than the discriminatory purpose prohibited by the Fif­
teenth Amendment, this is not so. For example, if, in 2001, a 
covered jurisdiction, for purely race-neutral reasons, decides 
to eliminate a black-majority district created in 1990 through 
a maximization plan, this would not violate either the Fif­
teenth or Fourteenth Amendments, but would constitute a 
proscribed retrogressive purpose under § 5. In short, while the 
standards are different, it is not possible to say that one is 
consistently “broader” than the other.

Consequently, even if there were some basis for conclud­
ing that § 5 must go as far as the Fifteenth Amendment, this is 
not an argument for interpreting it contrary to its plain lan­
guage since if § 5 prohibits retrogressive purpose, it still goes 
farther than the Amendment it seeks to enforce. More gener­
ally, however, there is no basis for concluding that the Consti­
tution -  the Fourteenth or Fifteenth Amendment -  is somehow 
silently incorporated into § 5 because there is very little 
congruence between the Constitution and § 5. Section 5 goes 
farther than the Constitution because it prohibits state laws 
solely on the basis of their effect, while the Constitution 
requires an invidious purpose. Section 5 also goes farther 
because it enjoins the operation of state law until the jurisdic­
tion proves its innocence. On the other hand, § 5 goes less far



28

than the Constitution because it reaches only changes to 
voting systems and covers only certain jurisdictions. Since 
§ 5 is both broader and narrower than the Constitution, there 
is no basis for assuming it was intended to be coextensive 
with the Constitution and nothing in the 1982 legislative 
history indicates any such intent to incorporate the Constitu­
tion’s “purpose” standard into § 5.21

1. Appellants’ assertion that the Court has previously 
resolved the question of whether § 5 reaches beyond retro­
gressive intent is obviously belied by the fact that the Bossier 
I Court expressly reserved this unsettled question. App. 
45a-46a. Nor did either of the concurring opinions maintain 
that the Court’s precedent required such a rule. App. 61a, 70a, 
76a. Although appellants maintain that City o f Pleasant Grove 
v. United States, 479 U.S. 462 (1987), somehow resolved this 
question, the Court’s opinion never mentions the word “retro­
gression” or hints that there is any distinction between retro­
gressive and discriminatory purpose because that case simply 
did not present this issue. The question in Pleasant Grove,

21 It is well established that § 5, as originally enacted in 1965 and 
subsequently amended in 1982, enforces the Fifteenth Amendment. See, 
e.g., Lopez v. Monterey County, 119 S. Ct. 693, 697 (1999); Lockhart, 460 
U.S. at 136-37 (Marshall, J., dissenting); Allen, 393 U.S. at 588-89 (Harlan, 
J., concurring in part and dissenting in part); South Carolina, 383 U.S. at 
335. Contrary to the United States’ assertion, nothing in the legislative 
history indicates that § 5 reaches “racially motivated voting changes” that 
violate the Constitution. U.S. Br. 23 n.8. The legislative history upon which 
they rely merely contains a congressional finding that the extraordinary 
preclearance procedures of § 5 remain necessary to “ ‘preserve the “limited 
and fragile” achievements of the Act and to promote further amelioration 
of voting discrimination.' ” S. Rep., at 10 n.19 (quoting City of Rome v.
United States, 446 U.S. 156, 172, 182 (1980) (noting that “Congress passed 
the Act under the authority accorded it by the Fifteenth Amendment.”)). 
The fact that Congress was relying on its power under the Fifteenth (or 
Fourteenth) Amendment to impose the extraordinary procedural burdens of
§ 5 does not suggest that § 5’s substantive standard is coextensive with the 
Constitution, any more than § 2 incorporates the Fourteenth Amendment’s 
standards.

29

rather, was whether the “purpose and effect” proscribed by 
§ 5 reaches only current purposes and effects or also includes 
future purposes and effects.22 * The answer to that question is 
in no way dependent upon whether § 5 prohibits a retrogres­
sive purpose (or effect), or something more. Appellants 
apparently believe that any intent to do a future harm some­
how cannot be a purpose to cause retrogressive harm. This is 
plainly untrue. As the Court explained, just as an annexation 
of land currently populated by whites alone could make 
minority voters worse off than they were prior to the annexa­
tion (i.e., retrogression), so too could annexing land that it 
was anticipated would be populated by whites. Pleasant 
Grove, 479 U.S. at 467.

Indeed, the Court’s reasoning was that since “Section 5 
looks not only to the present effects of changes, but to their 
future effects as well. . . . Likewise, an impermissible purpose 
under Section 5 may relate to anticipated as well as present 
circumstances.” Id. at 471 (emphasis added). Thus, because 
the § 5 effects prong prohibits a certain (future) harm, it 
follows that the purpose prong encompasses an intent to do 
that (future) harm. Here, by the same logic, since the effect 
prong permits a nonretrogressive “harm, the purpose prong 
does not encompass an intent to do that harm.

In any event, the district court’s opinion faithfully 
tracked Pleasant Grove's distinction between future and

22 While it is true that the dissenting opinion, in passing, mentions 
that Lockhart required a showing of retrogressive intent, the dissent's 
repeated central complaint was that “discriminatory purpose within § 5 
must relate to voting” and that “[w]here an annexation’s effect on voting 
rights is purely hypothetical, an inference that the city acted with a 
motivation related to voting rights is insupportable.” Pleasant Grove, 479 
U.S. at 474, 476-77 (Powell, J., dissenting). The majority did not mention 
or disagree with the dissenting opinion’s legal conclusion that § 5 reached 
only retrogressive intent, any more than it “rejected” the dissent’s view that 
§ 5 related only to voting discrimination or retrogressive effect. It simply 
disagreed that a future purpose or effect was inherently “hypothetical or 
irrelevant to voting and thus beyond the scope of § 5.



30

present harm. Thus, the lower court found that § 5’s purpose 
prong would have been violated if there had been any “cor­
roborating evidence that the Board had deliberately attempted 
to break up voting blocks before they could be established or 
otherwise to divide and conquer the black vote.” App. 6a 
(emphasis added). This almost precisely echoes Pleasant 
Grove's holding that the city had an “impermissible purpose 
of minimizing future black voting strength.” Pleasant Grove, 
479 U.S. at 471. Thus, whatever the rationale of Pleasant 
Grove, it is in no way inconsistent with the court below’s 
reasoning or result.23

Likewise, the Court’s decision in City o f Richmond lends 
no support to appellants’ interpretation of § 5. There, the 
Court upheld an annexation that severely “reducfed] the rela­
tive political strength of the minority race in the enlarged city 
as compared with what it was before the annexation” notwith­
standing this undisputed retrogressive effect. 422 U.S. at 378.

23 The Court’s summary affirmance in Busbee v. Smith, 549 F. Supp. 
494 (D.D.C. 1982), aff’d, 459 U.S. 1166 (1983), is also no help to 
appellants. That decision is entirely consistent with the opinion below since 
the primary flaw in Busbee was that the submitting jurisdiction had “split a 
cohesive black community in Districts 4 and 5,” thus causing minor 
retrogression in District 4, albeit not in District 5. Id. at 498-99. Since a 
summary affirmance is precedent only for any ground upon which the case 
below can be decided, and one potential ground was that the redistricting 
plan had a retrogressive effect, Busbee is not precedent for the position that 
a nonretrogressive plan violates § 5 if it is motivated by an illicit, 
nonretrogressive purpose. See, e.g., Mandel v. Bradley, 432 U.S. 173, 176 
(1977). Moreover, the court below considered and rejected the notion that 
the Board had split or “fragmented” any cohesive black community as in 
Busbee. App. 6a. In Miller v. Johnson, 515 U.S. 900 (1995), the Court 
overturned the Justice Department's finding of discriminatory purpose as 
inconsistent with any understanding of that term and thus, as in Bossier I, 
resolution of the sort of purpose proscribed by § 5 was “not necessary [to 
the Court’s] decision.” App. 45a (internal quotations omitted). The Miller 
Court’s implicit assumption that § 5 reaches beyond retrogressive purpose 
is no more dispositive of this point than Bossier I's explicit assumption that 
it does not.

31

The Court then remanded the case to insure that the motiva­
tion behind the annexation was not to cause such obvious 
retrogression in black voting strength, but was done for “veri­
fiable, legitimate reasons.” Id. at 375 (internal quotations 
omitted). In doing so, the Court again equated “changes taken 
with the purpose of denying the vote on the grounds of race or 
color” with “despoil[ing] colored citizens, and only colored 
citizens, of their theretofore enjoyed voting rights.' ” Id. at 
378-79 (quoting Gomillion, 364 U.S. at 347) (emphasis 
added). Thus, Richmond merely holds that an indisputably 
retrogressive change, which might otherwise survive § 5 
review, will be struck down if the motive in undertaking the 
annexation was to cause such retrogression, rather than to 
accomplish some “legitimate” goal. It in no way suggests that 
a nonretrogressive change may be invalidated if motivated by 
a nonretrogressive purpose. Beer itself expressly noted this 
obvious, dispositive difference:

The City o f Richmond case thus decided when a 
change with an adverse impact on previous Negro 
voting power met the “effect” standard of § 5. The 
present case, by contrast, involves a change with no 
such adverse impact upon the former voting power 
of Negroes.

Beer, 425 U.S. at 139 n i l .
Thus, while Pleasant Grove and Richmond confirm that 

§ 5 disjunctively prohibits either an unlawful purpose or 
unlawful effect, neither suggests that the § 5 “purpose” pro­
scribes something other than the proscribed retrogressive 
“effect.”

In sum, § 5 prohibits only changes with a retrogressive 
purpose.24 There is also no basis, as we presently explain, for

24 No deference is due to the Attorney General’s contrary 
interpretation because such deference is possible “ ‘only . . .  if Congress 
has not expressed its intent with respect to the question, and then only if the 
administrative interpretation is reasonable.’ ” Bossier I, App. 42a (quoting 
Presley v. Etowah County Comm’n, 502 U.S. 491, 508 (1992)). Here, the



32

denying preclearance in a § 5 proceeding to changes that satisfy 
Section 5, on the grounds that they violate the Constitution.

statute’s plain language directly resolves “the question” in a manner 
irreconcilable with the Attorney General’s position, and the Court has 
declined to give deference in instances where the plain language was less 
definite than here. See, e.g., Presley, 502 U.S. at 508 (whether § 5 applies 
to changes in responsibilities of elected officials); Holder, 512 U.S. at 880 
(plurality) (whether the phrase “standard, practice, or procedure” related to 
a change in the size of a governing authority). We further note that this 
Court has never adopted the Attorney General’s reading of § 5 to override a 
contrary legal conclusion by the Section 5 district court -  which is 
principally charged with administering the Act’s preclearance mechanism -  
and there is no basis for doing so. This Court has made clear that it will not 
defer to an agency interpretation where the agency is “neither the sole nor 
the primary source of authority in such matters.” Litton Fin. Printing Div. v. 
NLRB, 501 U.S. 190, 202 (1991). Here, “the declaratory judgment 
proceeding is the basic mechanism for preclearance established by the Act, 
[while] the provision for submission to the Attorney General merely gives 
the covered State a rapid method of rendering a new state election law 
enforceable.” McCain v. Lybrand, 465 U.S. 236, 247 (1984) (internal 
quotation and citation omitted); accord, e.g., Clark v. Roemer, 500 U.S. 
646, 655 (1991); Morris v. Gressette, 432 U.S. 491, 503 (1977). Since 
Congress vested the three-judge court with primary responsibility for 
determining the meaning of “purpose and effect” under § 5, no intelligible 
principle of construction would reject the correct interpretation of that 
Article III court in deference to an erroneous, albeit “reasonable,” 
construction by the Attorney General. See Crandon v. United States, 494 
U.S. 152, 177 (1990) (Scalia, J., concurring in the judgment) (no deference 
for the Attorney General’s interpretation of a criminal statute, because the 
statute “is not administered [by the Justice Department] but by the courts"). 
This Court does not give deference to the Attorney General’s factual 
conclusions in a § 5 case, but defers to the three-judge court absent clear 
error. The same rule should obtain with respect to the court’s legal 
conclusions, particularly since the Attorney General herself has 
acknowledged that she is controlled by those decisions. See 28 C.F.R. 
§ 51.56; 28 C.F.R. § 51.52(a) (Attorney General “make[s] the same 
determination that would have been made by the court in an action for a 
declaratory judgment under section 5.”). Finally, no Justice Department 
guideline or statement considers, much less explains, how § 5 could treat

33

IV. SECTION 5 PRECLEARANCE MAY NOT BE 
DENIED BECAUSE A CHANGE VIOLATES THE 
CONSTITUTION.

A distinct question, raised by dicta in Beer, is whether 
§ 5 courts (and the Attorney General) may withhold pre- 
clearance of a voting change that satisfies the nonretrogres­
sion purpose standard of Section 5 on the grounds that it 
violates the Constitution. If the Court is to address this 
question, it should rule that constitutional issues are not 
properly within the province of Section 5 courts or, at a 
minimum, that the United States, as it has previously 
acknowledged, bears the burden in a § 5 proceeding of pro­
ving that a change violates the Constitution.

As the Court noted in Bossier I, dicta in Beer suggested 
that a constitutional violation “constituted grounds for denial 
of preclearance under Beer.” App. 41a. Beer did not purport 
to interpret the meaning of § 5’s “purpose,” much less to 
suggest that it had a different meaning than the retrogression 
it held was the standard for determining an “effect of . . . abr­
idging.” Nor did it in any way explain or articulate what 
constitutional standard it was referencing. The most plausible 
understanding is that Beer believed that a single-member 
redistricting scheme violated the Constitution only if it 
caused retrogression by taking away a minority’s “theretofore 
enjoyed voting rights.” Richmond, 422 U.S. at 378 (quoting 
Gomillion, 364 U.S. at 347). See Mobile, 446 U.S. at 69 n.14 
(“A districting statute otherwise acceptable, may be invalid 
because it fences out a racial group so as to deprive them of 
their pre-existing municipal vote. Gomillion v. Lightfoot, 364 
U.S. 339 (I960).”) (plurality) (emphasis added). It is doubtful 
that Beer’s reference to the constitutional standard connoted a 
racial purpose to dilute since it was hotly contested whether 
this was the constitutional standard (particularly in a voting

“purpose” differently than “effect”; the enforcement guidelines simply 
assume such a difference exists.



34

rights context) when Beer was decided,25 and such a conclu­
sion is irreconcilable with other assertions in the opinion.26

But regardless of what Beer intended by its reference to 
the constitutional standard, the relevant point is that the dicta 
was not construing Section 5, much less what “purpose”

25 Beer was pre-Washington v. Davis, 426 U.S. 229 (1976). See Beer, 
425 U.S. at 149 n.4 (Marshall, J., dissenting); Mobile, 446 U.S. at 62, 66 
(plurality); id. at 85-86, 88-90 (Stevens, J., concurring); id. at 120 
(Brennan, J., dissenting); S. Rep., at 19-26.

26 The Beer Court said that the United States had not, and could not 
“rationally,” allege a constitutional violation. Beer, 425 U.S. at 142 n.14. 
But the government had contended in the Beer lower court that “the district 
boundaries established by Plan II have the purpose of discriminating 
against black voters.” Beer v. United States, 374 F. Supp. 363, 386-87 
(D.D.C. 1974). And, as the lower court and dissenting opinion made clear, 
there was ample evidence making an assertion of discriminatory purpose, 
at the very least, “rational.” Id.', Beer, 425 U.S. at 160-61 (Marshall, J., 
dissenting); cf. Rogers, 458 U.S. at 623-27. Thus, it seems clear that the 
Beer Court perceived a difference between allegations of invidious 
purpose, at least in the single-member context, and allegations of a 
constitutional violation. At a minimum, the Beer Court would not have 
assumed that the Constitution was violated if the jurisdiction failed to 
create a black-majority district for racial purposes. Prior to Shaw I, many 
believed that a jurisdiction’s conceded use of race as a basis for line­
drawing would not form the basis for a viable constitutional challenge
absent a showing of dilutive effect on a group’s voting power. Shaw I, 509 
U.S. at 658-60 (White, J., dissenting); United Jewish Org. v. Carey, 430 
U.S. 144, 165-67 (1977) (plurality). As noted, Beer found that a 
nonretrogressive reapportionment did not have a dilutive effect, and it was 
quite an unsettled proposition in 1976 that deliberate creation of districts 
where blacks constituted a minority was necessarily dilutive of black 
voting power. Allen, 393 U.S. at 586 (Harlan, J., concurring in part and 
dissenting in part); Bossier I, App. 52a (Thomas, J., concurring). Thus, the 
reason that New Orleans’ deliberate creation of white majority districts in 
Beer did not “remotely approach” a constitutional violation is because such 
districts are dilutive only when compared to a “hypothetical” plan creating 
more black-majority districts and only if one accepted the then-disputed 
premise that majority districts are “better” for minorities than “influence” 
districts. Allen, 393 U.S. at 586 (Harlan, J., concurring in part and 
dissenting in part).

35

meant under that statute. To the contrary, Beer was at pains to 
emphasize that its construction of § 5 was entirely distinct 
from its understanding of constitutional norms:

In evaluating this claim, it is important to note at 
the outset that the question is not one of constitu­
tional law, but of statutory construction. A deter­
mination of when a legislative reapportionment has 
“the effect of denying or abridging the right to vote 
on account of race or color,” must depend, there­
fore, upon the intent of Congress in enacting the 
Voting Rights Act and specifically § 5.

Beer, 425 U.S. at 140-41 (footnote omitted).
The upshot of the Beer dicta, then, is the unexceptional 

proposition that a reapportionment which satisfies § 5 may 
nonetheless violate the Constitution. Read in isolation, it is 
true, Beer suggests the more troubling proposal that the Sec­
tion 5 court itself may adjudicate constitutional issues and 
withhold preclearance on that basis. This Court has subse­
quently explained, however, that the Beer dicta was not 
intended to suggest that a constitutional violation affords a 
basis for a Section 5 court to deny preclearance. In Shaw I, 
this Court ruled that the Beer dicta simply “declined to reach 
[the] question” of whether a “nonretrogressive” redistricting 
plan was, “for that reason, . . . immune from constitutional 
challenge.” Shaw I, 509 U.S. at 654 (citing Beer, 425 U.S. at 
142 n.14). Shaw I noted that other cases had established that 
“a reapportionment plan that satisfies § 5 still may be 
enjoined as unconstitutional,” citing the provision of § 5 
allowing a “subsequent action to enjoin enforcement” after 
the declaratory judgment has issued and Allen's ruling that 
“after preclearance, ‘private parties may enjoin the enforce­
ment of the new enactment . . .  in traditional suits attacking 
its constitutionality.’ ” Id. (quoting Allen, 393 U.S. at 549-50) 
(emphasis added).27

27 Moreover, Beer’s suggestion that a nonretrogressive plan may be 
denied preclearance if it violates the Constitution is inconsistent with 
Lockhart’s ruling that a nonretrogressive plan “is entitled to § 5



36

Thus, as construed in Shaw I, Beer's dicta at most con­
firms the obvious point that a reapportionment plan which 
satisfies § 5 may still violate the Constitution and, as § 5’s 
language itself states, may be enjoined in a subsequent consti­
tutional challenge. Moreover, this result is the only one at all 
consistent with the express language of § 5. There is no basis 
under that statute for denying preclearance to a voting change 
in a § 5 proceeding if the voting change satisfies the substan­
tive requirements of Section 5, regardless of whether it vio­
lates another federal law. The authority and jurisdiction of the 
three-judge court in the District of Columbia is strictly lim­
ited to issuing a declaratory judgment on whether the voting 
change has a “purpose [or] effect” forbidden by § 5. If the 
three-judge court issues a declaratory judgment that the 
Board’s proposed redistricting plan does not have the retro­
gressive “purpose and effect” prohibited by § 5, the preemp­
tive constraints of § 5 have been lifted and no federal law 
trumps the Board’s plan. “Once a covered jurisdiction has 
complied with these preclearance requirements, § 5 provides 
no further remedy.” Lopez v. Monterey County, 519 U.S. 9, 23 
(1996). If the three-judge court decides to also issue an 
advisory opinion on the Constitution, this can be of no legal 
consequence because nothing in the Voting Rights Act makes 
such a constitutional determination a prerequisite to imple­
menting the jurisdiction’s voting changes and the three-judge 
court has no subject matter jurisdiction to rule on any consti­
tutional violation.

Amending § 5 to add the requirement that a change satisfy the 
Constitution would also make nonsense of the language in § 5 
allowing a subsequent suit to enjoin a precleared change, and 
would be an invitation to relitigation and inconsistent judgments. If 
Congress intended for the Section 5 court to make a constitutional 
determination before preclearance, it is doubtful it would have

preclearance” without referencing any possible exception for an 
unconstitutional nonretrogressive plan. Lockhart, 460 U.S. at 134 
(emphasis added).

37

expressly authorized a subsequent constitutional challenge. This 
would simply create the potential for inconsistent judgments and 
duplicative litigation.

This further confirms that Congress intended to limit the 
extraordinary burdens imposed upon sovereign jurisdictions 
by using § 5 to resolve only the manageable substantive 
question of whether there is dilution compared to the cogniza­
ble benchmark of the existing practice. Requiring a covered 
jurisdiction to also, in essence, sue itself under the Constitu­
tion and disprove the validity of hypothetical alternatives 
limited only by the imagination of Justice Department law­
yers (and then perhaps litigate those same issues again in a 
defensive lawsuit in district court) would increase the already 
“substantial federalism costs” imposed by § 5. Lopez v. Mon­
terey County, 119 S. Ct. 693, 703 (1999) (internal quotations 
omitted).28 29

28 For the third time, appellants rely on footnote 31 in the 1982 
Senate Report to argue that the 1982 Congress thought Beer authorized a 
denial of preclearance if a reapportionment plan violated the Constitution 
and thus § 5 must be so interpreted. U.S. Br. 29 (citing S. Rep., at 12 n.31). 
The authors of the same Senate Report footnote, however, also thought that 
“the rule laid down in Beer governed ameliorative changes,” rather than 
nonretrogressive ones, and that Beer invalidated voting plans which 
violated the White v. Regester “results standard” later incorporated into § 2. 
See S. Rep., at 12 n.31; Lockhart, 460 U.S. at 145 (Marshall, J„ concurring 
in part and dissenting in part) (emphasis in original); Bossier I, App. 43a; 
73a. This Court nonetheless ruled precisely to the contrary in both 
Lockhart and Bossier I because the proposed interpretation offered in the 
Senate Report footnote was contrary to the language and structure of § 5. 
Bossier l, App. 43a. The United States suggests that this appeal is different 
because the issue here “involves Congress’s approval o f. .. Beer.” U.S. Br.
29 n.10. But the Senate Report footnote also approved Beer's purported 
incorporation of White v. Regester “results” and Beer’s purported limitation 
to only ameliorative changes. This does not change the fact that, yet again, 
the Senate Report’s “interpretation” is contrary to both the plain language 
of the statute and, for that matter, this Court’s subsequent interpretation of 
Beer in Shaw I. Thus, this footnote can be given “great weight" only if the 
Court abandons both its longstanding principle that legislative history 
cannot affect plain statutory language and the principle that “it is the



38

Appellants nonetheless conclusorily assert that Congress 
simply could not have intended that the Attorney General 
blind her eyes to unconstitutional voting discrimination. U.S. 
Br. 22. Congress concededly did, however, bar the Attorney 
General from objecting to even a “clear violation” of § 2. 
Bossier /, App. 45a; App. 62a (Stevens, J., dissenting). Pre­
sumably the 1982 Congress was as concerned about a clear 
§ 2 violation as it was about an ambiguous constitutional 
violation. This is particularly true since it thought that the 
amended § 2 standard was the correct constitutional standard 
(and the established one prior to Mobile) and because it 
thought that “unintended” deprivations of minority voting 
rights were just as nefarious as actions taken with a discrimi­
natory “intent.” S. Rep., at 19-26, 30, 36-37.

As this reflects, there is nothing “implausible” about 
Congress determining that a violation of other voting rights 
guarantees affords no basis for objecting under § 5. U.S. Br. 
20. The Attorney General’s preclearance of changes is not 
tantamount to an “endorsement”; it is simply an acknowledge­
ment of the “limited substantive” scope of § 5. Bush, 517 U.S. 
at 982. The fact that the Attorney General and this Court were 
forced to preclear the two at-large seats retained in the Beer 
reapportionment plan, even if they were retained for blatantly 
discriminatory reasons, hardly suggests that the Attorney 
General or this Court “tolerated” such an invidious motive. 
Beer, 425 U.S. at 138. The same is true of a single-member 
redistricting plan that, for whatever reason, simply retains the 
racial percentages contained in the prior redistricting plan. 
Granting preclearance simply recognizes the fact that prac­
tices which violate laws other than § 5 should be challenged 
under the laws which render them illegal.

At the same time, having local district courts, rather than 
the District of Columbia Section 5 court, adjudicate constitu­
tional violations of proposed voting changes would not place

function of the courts and not the Legislature, much less a Committee of 
one House of the Legislature, to say what an enacted statute means.” Pierce 
v. Underwood, 487 U.S. 552, 566 (1988); see U.S. Br. 29 n.10.

39

the United States or minority plaintiffs at any procedural 
disadvantage. For, as the United States itself acknowledged in 
Bossier /, if Beer is construed as injecting unconstitutional 
dilution claims into § 5 proceedings, the language of that 
opinion shows that “the burden to show dilution as a bar to 
preclearance remains with the Attorney General." U.S. Br. in 
Bossier I at 43 (emphasis added). Specifically, the United 
States brief pointed to the passage in Beer where “the Court 
stated that ‘[t]he United States has made no claim that [the 
disputed plan] suffers from any such [constitutional] disabil­
ity, nor could it rationally do so.’ ” Id. (quoting 425 U.S. at 
142 n.14) (emphasis added by U.S. Br.) (second bracket 
added).29 The concession that it has the burden is well-taken 
because (in addition to the Beer language) the burden on 
submitting jurisdictions under § 5 is only to show that their 
change is “free of the purpose and effect” proscribed by 
Section 5. South Carolina v. Katzenbach, 383 U.S. 301, 355 
(1966). There is no suggestion that the jurisdiction must also 
prove itself innocent of other potential violations.

Thus, if the Constitution is to be injected into § 5 litiga­
tion, this requires at most that the jurisdiction disprove a 
violation of § 5 -  show the absence of a retrogressive purpose 
and effect -  while the United States would have to demon­
strate a constitutional violation. Under the Court’s well-estab­
lished precedent, this means, in redistricting cases where “the 
legislature always is aware of race,” Shaw 1, 509 U.S. at 646 
(emphasis in original), that the United States’ burden is to 
show “that race was the predominant factor motivating the 
legislature’s decision.” Miller, 515 U.S. at 916. Outside the 
redistricting context, it must show that race was a “motivating 
factor” unless the jurisdiction shows that it would have made 
the same decision without considering race. Arlington 29

29 Since the United States in Bossier I attempted to show that Beer 
authorized § 2, as well as constitutional, challenges, it conceded that Beer 
also placed the burden on the Attorney General in § 2 challenges it thought 
could be brought in § 5 proceedings.



40

Heights, 429 U.S. at 270-71 n.21; Mt. Healthy City Sch. Dist. 
Bd. o f Educ. v. Doyle, 429 U.S. 274, 287 (1977).

Since the United States concededly would have the bur­
den to show a constitutional violation regardless of whether 
the litigation is in the District of Columbia Section 5 court or 
a traditional district court, this is an additional reason not to 
stretch § 5 beyond its language to expand the Section 5 
court’s jurisdiction. Indeed, this Court has frequently noted 
that local district courts are best situated to resolve constitu­
tional voting rights challenges since analysis of that evidence 
requires an “intensely local appraisal.” White v. Regester, 412 
U.S. at 769-70. Thus, interpreting § 5 as not encompassing 
constitutional issues would have no cognizable effect on the 
judiciary’s ability to resolve those constitutional claims or in 
any way allow any invidious purpose to go unremedied.30

Equally important, a nonretrogression standard in 1999, 
standing alone, is an extraordinarily muscular prophylactic 
barrier against any effort to improperly dilute minority voting 
strength. Each covered § 5 jurisdiction has already had at 
least two, and usually three, redistricting plans affirmatively 
found to be free of any discriminatory purpose or effect in the 
1970s, 80s and 90s. See 42 U.S.C. § 1973c (some jurisdic­
tions covered for practices in effect “on November 1, 1972”). 
In the 1990s, such preclearance was forthcoming from the

30 The United States makes the puzzling assertion that, after a 
traditional district court has struck down an existing voting practice under 
the Fifteenth Amendment because of discriminatory purpose, the Attorney 
General would somehow be forced to preclear a new practice under § 5 that 
had precisely the same discriminatory purpose and effect. U.S. Br. 22. But, 
of course, a district court exercising its remedial jurisdiction could not 
possibly allow the offending jurisdiction to “cure” its adjudged violation by 
substituting precisely the same plan for precisely the same unconstitutional 
motive. See, e.g., Connor v. Finch, 431 U.S. 407, 414-15 (1977); Abrams, 
521 U.S. at 84-86. Thus, no such discriminatory substitute plan would ever 
be eligible to be submitted for preclearance. Id. The question here, 
however, is simply whether § 5 contemplates that these Fifteenth 
Amendment questions will be decided in the first instance by these district 
courts or by the Justice Department. See infra pp. 41-42.

41

Justice Department only if it found compliance with § 2 and if 
it maximized minority districts to the extent arguably permit­
ted (and often beyond what was permitted) by the constitu­
tional guarantees for nonminority citizens. See Bossier /, 
App. 32a; Shaw v. Hunt, 517 U.S. 899, 902 (1996) (“Shaw 
IF')-, Miller, 515 U.S. at 917. Thus, in striking contrast to the 
1970s, the retrogression benchmark in the 2000 redistricting 
cycle is set extraordinarily high. Simply maintaining that 
minority maximization status quo under a nonretrogression 
principle will not perpetuate any discriminatory redistricting 
plans. It will maintain, rather, a system which maximizes 
minority voting strength to the extent constitutionally permis­
sible. It is extraordinarily implausible that a submitting juris­
diction, except in the rarest of cases, could avoid 
retrogressing from the race-conscious redistricting required in 
the 1990s and still unconstitutionally dilute minority voting 
strength. As noted, those rare cases can be swiftly adjudicated 
in local district courts pursuant to the same evidentiary stan­
dards as would be employed in the three-judge court.

On the other hand, injecting constitutional issues into § 5 
adjudication would create an unworkable administrative sys­
tem for § 5. First, there is simply no place in the traditional 
§ 5 administrative scheme for the shifting burdens that all 
agree are necessary if the Constitution is to be part of § 5 
analysis. The Justice Department itself has forthrightly 
acknowledged that it cannot reasonably administer a scheme 
where the Attorney General has the burden of proving a 
violation to herself. “Unlike court proceedings, administrative 
review under § 5 -  which is by statute limited to 60 days upon 
receipt of all necessary information -  does not include the 
kind of hearing procedures that provide for the full presenta­
tion of evidence and rebuttal evidence by contesting parties 
and others interested in the proceedings.” Revision of Pro­
cedure for the Administration of Section 5 of the Voting 
Rights Act of 1965, 52 Fed. Reg. 487 (Jan. 6, 1987).

Perhaps more troubling, in adjudicating this constitu­
tional issue, the Justice Department takes the extraordinary 
view that it is perfectly appropriate to find that the submitting 
jurisdiction acted with a “discriminatory purpose” even if it



42

“did not take race into account in any way.” App. 102a n.12. 
Thus, as the Department candidly argued to this Court in 
Miller and Bossier I, even if there is not a scintilla of 
evidence that a jurisdiction has departed from the traditional 
redistricting principles it would have used in a colorblind 
world, a discriminatory purpose finding can nonetheless be 
premised solely on the existence of racial bloc voting and a 
history of discrimination -  phenomena that exist in many 
covered jurisdictions, which the submitting jurisdiction can­
not change and which will exist regardless of which redistrict­
ing plan is chosen. U.S. Br. in Bossier I at 17-19; U.S. Br. in 
Miller at 32-33. Indeed, as the objection letter in this case 
makes clear, the Justice Department believes that a jurisdic­
tion must maximize minority voting strength unless there is a 
compelling reason which necessarily forecloses the maximiz­
ation alternative. See App. 235a (Board is “not free to adopt a 
plan that unnecessarily limits the opportunity for minority 
voters to elect the candidates of choice.”). Thus, if granted 
authority over constitutional issues, the Justice Department 
will impermissibly exercise this unreviewable authority to 
find that the submitting jurisdiction acted with discriminatory 
purpose simply because, as here and in the Shaw gerrymander 
cases, it is prevented from maximizing by perfectly valid state 
laws and/or traditional districting principles. Morris v. 
Gressette, 342 U.S. 491 (1977). The necessary result of this 
empowerment is to again plunge this Court and covered 
jurisdictions into another decade-long cycle of litigation con­
cerning whether the Justice Department’s maximization poli­
cies have coerced jurisdictions to engage in an unconsti­
tutional gerrymander against nonminorities. As this Court has 
previously noted, these Justice Department departures from 
neutral enforcement of accepted nondiscrimination principles 
raise serious constitutional concerns about § 5 itself. Miller, 
515 U.S. at 926-27.

In sum, (1) § 5’s retrogressive purpose standard, standing 
alone, is an extraordinary bulwark against unconstitutional

43

minority vote dilution; (2) judicial remedies are readily avail­
able to strike down any voting changes with a discriminatory 
purpose; and (3) there are compelling policy reasons not to 
transfer adjudication of this constitutional issue from neutral 
magistrates to an unreviewable bureaucracy which cannot 
administer a burden shift and which consistently applies erro­
neous (and unconstitutional) legal standards to adjudicate the 
Constitution. At most, even if appellants’ reading of Beer is 
accepted, the question on remand should be whether the 
defendants have carried their burden of proving that the 
Board’s redistricting plan violated the Constitution.

V. THE DISTRICT COURT’S DISCRIMINATORY 
PURPOSE FINDINGS ARE NOT PROPERLY
BEFORE THIS COURT AND ARE NOT CLEARLY
ERRONEOUS.
The only question presented by appellants to this Court is 

the purely legal issue of whether the district court mis­
construed § 5 by concluding that it reached only retrogressive 
intent. See U.S. J.S. at I; A-I J.S. at i. Unlike the first appeal, 
neither appellant raised any question as to whether the district 
court improperly found no discriminatory purpose in this case 
by misapplying the Arlington Heights factors or making 
clearly erroneous factual findings. Thus, whether the Board 
had a discriminatory purpose is simply not before the Court, 
and the Court has no basis for reversing any findings the 
lower court made on that issue. Yee v. City o f Escondido, 505 
U.S. 519, 537 (1992); Sup. Ct. R. 14.1(a); Sup. Ct. R. 18.3. 
Rather, if the Court finds that the lower court erred by failing 
to examine the discriminatory purpose issue, it must remand 
so the lower court may apply the proper legal standard to the 
facts. Yet, without any explanation, both appellants devote 
roughly half their briefs to this nonexistent, fact-bound issue.

Although this issue is entirely irrelevant, we will none­
theless briefly explain why the district court’s findings on 
discriminatory purpose are not “clearly erroneous” and there­
fore may not be set aside. Pullman-Standard, Div. o f Pullman,



44

Inc. v. Swint, 456 U.S. 273, 287 (1982).31 The Board was 
offered a choice between two alternative redistricting plans. 
As the undisputed facts establish, one plan had been pre­
cleared by the Justice Department the previous year, was 
supported by the black member of the Police Jury’s Reappor­
tionment Committee, kept intact every black population con­
centration, enhanced minority voting strength and clearly 
complied with state law and traditional districting principles, 
such as compactness and maintaining the integrity of munici­
pal, district and precinct boundaries. J.A. 508; J.A. 504. The 
other alternative concededly constituted a facial violation of 
state law which rendered the plan “null and void,” required 
more than doubling the number of existing precincts, split 
every municipal boundary in the Parish, grossly departed 
from the Police Jury districts and the “best” version was 
subsequently condemned by a federal court as “resembl[ing] 
an octopus, as it stretches out to the nooks and crannies of the 
parish in order to collect enough black voting age popula­
tion. . . . ” J.A. 509-10; J.A. 51. See infra pp. 46-47.

The short, and dispositive, explanation for why the dis­
trict court found that the Board had a completely legitimate, 
nondiscriminatory reason for rejecting the proposed NAACP 
alternative is that this alternative (or even any variant

31 Although appellants claim that “general” findings of fact are 
subject to heightened scrutiny, there is no finding more general than a 
determination of “discriminatory intent,” and the Court has held that such a 
finding is subject to Sup. Ct. R. 52. Pullman, 456 U.S. at 287. Indeed, the 
Court has emphasized that factual findings “ ‘as to the design, motive and 
intent with which men act’ [are] peculiarly factual issues for the trier of 
fact.” Id. at 288 (quoting United States v. Yellow Cab Co., 338 U.S. 338, 
341 (1949)). See also Pleasant Grove, 479 U.S. at 469 (1987) (holding that 
under § 5, “findings, both as to the purpose [of adopting a voting change] 
and with respect to the weight of evidence regarding the purpose of the 
[changes] at issue, are findings of fact that we must accept unless clearly 
erroneous”); Rogers, 458 U.S. at 623.

45

thereof)32 facially violated a state law that was impossible to 
evade. The Board was required to use the precincts created by 
the Police Jury (and used by the Police Jury for its districts) 
as the “building blocks” for the Board’s districts. Louisiana 
law is quite unequivocal on this point: “The boundaries of any 
election district for a new apportionment plan from which 
members of a Board are elected shall contain whole precincts 
established by the parish governing authority [i.e., the Police 
Jury]. . . . ” J.A. 376-77. Any failure to abide by this 
mandatory requirement would render the Board’s plan “null 
and void.”33 J.A. 377. At the same time, the local NAACP 
claimed that the Voting Rights Act required the adoption of a 
plan with two black majority districts, even though this con­
cededly violated state law because a black majority district 
could not be created without splitting numerous precincts. 
App. 195a; J.A. 195-96. Confronted with this allegedly insol­
uble conflict between state and federal law, the Board chose 
the one plan it knew complied with both sets of laws: the 
Police Jury plan which the Justice Department had precleared 
just the year before. Because this “guaranteed preclearance” 
solved the federal law problem, it rendered the Police Jury 
plan markedly superior to any other plan that complied with 
state law (since any plan that had a black majority district, 
and thus also had a chance at preclearance, violated state law 
by splitting precincts.)

Appellants contend that the Police Jury, as opposed to the 
Board, had the authority to split precincts and that such splits

32 Two “Cooper” plans were formulated by intervenors after the 
Board had adopted its plan, and thus are clearly irrelevant. In any event, 
even the “best” of these plans splits all but one of the Parish’s towns, 
results in 31 precinct splits, and is not compact. J.A. 421-22, 440-54, 512.

33 In an attempt to confuse this issue, appellants state that the Police 
Jury had modified the precincts used in the 1980s when it adopted its 1991 
redistricting plan. No state law prohibits the Police Jury from changing its 
prior precincts to reflect population shifts and conform with its new 
districts, but once it has done so, the Board must use those precincts to 
build its districts. J.A. 389.



46

are both “legal and common.” U.S. Br. 46; A-I Br. 39. This is 
extraordinarily disingenuous. For, prior to December 31, 
1992, the Police Jury, just like the Board, was legally prohib­
ited from altering a single precinct line. J.A. 389. But, under 
state law, the Board was required to redistrict prior to Decem­
ber 31, 1992. J.A. 88-89, 406-07. Thus, during the time that 
the Board was required to redistrict, lest the plan be “null and 
void,” any splitting of precincts by it or the Police Jury would 
render the plan “null and void.” It was therefore, impossible 
for either the Board or the Police Jury to sanction any pre­
cinct splits in the Board’s redistricting plan during the period 
when the Board could lawfully redistrict.34 This is hardly a 
coincidence, but was the manner in which state law ensured 
that all school boards used the Police Jury precincts as “build­
ing blocks” for their districts. Of course, after both the Board 
and the Police Jury had built their districts with the same 
precincts, there was no problem with the Police Jury consol­
idating those precincts within district lines to save money by 
having fewer precincts. J.A. 377. But, contrary to what the 
United States argued in Bossier /, this authority to consolidate 
precincts after they had been used to build the Board districts 
hardly authorized the Police Jury or Board to split the existing 
precincts, and thus create more precincts.35

34 Appellants’ contention that such precinct splits are “common" is 
equally misleading. U.S. Br. 46. Appellants’ own witness was able to cite 
only three examples of other Louisiana jurisdictions that had split a “few” 
precincts. J.A. 214. It appears that those three Boards used the same 
precincts as those used by the Police Jury, which is perfectly legal {see 
supra note 33) or were done to accommodate the Justice Department 
objections, as also permitted by state law. J.A. 377. These examples are 
thus irrelevant because they involve entirely dissimilar situations.

35 The Board cartographer’s reference to working with the Police
Jury to “alter” precinct lines can only be understood as a reference to 
consolidating the precincts after the Board’s plan was complete; not 
splitting precincts in the manner done by the NAACP plan. U.S. Br. 37 
(citing App. 174a 1 102). It is stipulated that the cartographer discussed 
“consolidating] some precincts” “after January 1, 1993” with members of

47

Far from being a post hoc rationalization, the undisputed 
facts establish that the contemporaneous explanation for 
rejecting the NAACP alternative was that the district attorney 
and the Board’s cartographer both correctly informed the 
Board that the NAACP’s massive precinct splitting was a 
facial violation of state law. J.A. 177; App. 83a-84a; App. 
179a 1 102; J.A. 180. Indeed, the NAACP itself recognized 
that its plan violated the state law prohibition against precinct 
splits, but merely maintained that the Voting Rights Act 
preempted this law. J.A. 195-96. The unrebutted facts also 
establish that prior Board plans had never split the Police Jury 
precincts and that the Board had never considered any plan 
that split precincts in the 1990 cycle. J.A. 250-51; Tr. 
(Myrick) at 118.

Even if state law did not render any plan with a black 
majority district facially void, every objective reason strongly 
counseled against more than doubling the existing number of 
precincts in this poor rural parish. This Court has already 
vividly described the “electoral nightmare” and “multiplied” 
costs caused by racially-motivated line drawings which 
required Harris County, Texas to almost double its existing 
precincts and “thrust” voters “into new and unfamiliar pre­
cinct alignments, a few with populations as low as 20 voters.” 
Bush, 517 U.S. at 974 (quotations omitted).36 In Bossier, the 
number of precincts would have increased 115%, from 56 to 
121, and 17 of those 65 new precincts would have had fewer 
than 20 people in them. J.A. 455-96. The cost of each new 
precinct was approximately $850 or, in the aggregate, 
$55,250, for every state, federal and local election. J.A. 275.

the Board and Police Jury. App. 165aj| 61 (emphasis added). Conversely, 
the cartographer concededly knew and informed the Board that the Board’s 
district lines could not split precinct lines under state law, and he never 
presented any of the Board members with a plan that split any precinct 
lines. J.A. 250-51; Tr. (Myrick) at 118.

36 See Shaw II, 517 U.S. at 912 (criticizing precinct splits); Johnson v. 
Miller, 864 F. Supp. 1354, 1367, 1376 (S.D. Ga. 1994) (same).



48

Finally, “cutting across pre-existing precinct lines . . .  is part 
of the constitutional problem insofar as it disrupts nonracial 
bases of political identity and thus intensifies the emphasis on 
race.” Bush, 517 U.S. at 980.

Appellants allege that the Board’s plan did not honor two 
“factors that it had previously considered ‘paramount.’ ” A-I 
Br. 29. First, appellants make much of the fact that the 
Board’s plan supposedly “pitted two pairs of Board incum­
bents against each other.” U.S. Br. 38; A-I Br. 29. But pairing 
two incumbents is a problem only if both members of the pair 
will seek reelection, and the unrebutted testimony establishes 
that one member of each of these pairs had already decided 
not to run for reelection. See J.A. 54, 103, 108. (Incumbent 
Musgrove, paired with incumbent Jackson, had decided not to 
run again; incumbent Gray, paired with incumbent Harvey, 
had decided not to run again). Thus, unlike the NAACP Plan 
which greatly disfavored incumbents by radically redrawing 
every school district and pairing them, Tr. (Musgrove) at 46, 
the Police Jury plan was in no way inconsistent with the 
Board’s interest in protecting incumbents. Second, appellants 
note that there was not a school in each district in the Board’s 
plan. Yet, there is no evidence that appellants’ newly-minted 
principle was a “factor[ ] that [the Board] had previously 
considered paramount,” nor that the NAACP plan advanced 
this interest. A-I Br. 29. To the contrary, the Board never gave 
the cartographer school attendance maps or otherwise indi­
cated this was a criterion. App. 174a 1 88. Since board 
members represent people, not buildings, there is no basis for 
believing that this is a traditional districting criterion, and 
appellants cannot cite a single case suggesting it is. Con­
versely, the Board’s plan was superior to the NAACP plan for 
all recognized districting principles -  compactness, preserv­
ing municipal and other boundaries, etc. -  and the appellants 
cannot advance a single race-neutral reason for adopting the 
maximizing alternative. J.A. 504, 509; J.A. 455-96; Joiner 
Rebuttal Testimony at 7.

49

Appellants also maintain that the Board “rushed to a 
decision” in September and October 1992, when its elections 
were two years away. A-I Br. 36, 37; U.S. Br. 6. Again, the 
Board was required by state law to complete its redistricting 
procedures by December 31, 1992, J.A. 88, and thus the fact 
that its elections were two years off is utterly irrelevant.

Appellants also suggest that the Board has somehow 
violated its desegregation decree, even though the Justice 
Department has never so argued in the school desegregation 
case, or sought sanctions or modification of the decree. There 
is no evidence that the school’s alleged racial imbalance is 
attributable to the Board’s conduct, as opposed to demo­
graphic factors over which it has no control. See Freeman v. 
Pitts, 503 U.S. 467, 494 (1992). Moreover, contrary to appel­
lants’ suggestion, this Board’s disbandment of a newly-con­
stituted biracial committee in no way suggests noncompliance 
with any school desegregation decree or duty. In fact, the 
Board voluntarily established this committee in 1993, at the 
request of the NAACP. App. 183a 1 113.37

37 The committee was dismissed when it exceeded its desegregation 
advisory role and instead began to involve itself in educational policy 
matters that are “committed to the control of state and local authorities.” 
Board of Curators of the Univ. of Mo. v. Horowitz, 435 U.S. 78, 91 (1978). 
The initial biracial committee last met twenty-three years ago in 1976, 
when perhaps one current Board member was serving. App. 182a 1112. 
This committee was established pursuant to a consent decree and was 
charged with “mak[ing] recommendations as to whether or not the present 
desegregation plan is to be reviewed.” Id. (internal quotations omitted). 
This plainly implies that it was intended merely to make specific 
recommendations for a unitary system, not serve as a permanent 
governmental bureaucracy. It is thus entirely understandable that the 
interest of the volunteer citizens who served on the committee waned over 
time. There is nothing in the record suggesting that the Justice Department, 
the private plaintiffs or the black community ever complained about its 
dormancy. Indeed, the lawyer for the private desegregation plaintiffs since 
the 1970s testified that he was unaware of any biracial committee 
requirement until 1993. Davis Testimony at 12.



50

In sum, while it is theoretically conceivable that the 
Board made the right decision for the wrong reason, it is not 
possible that the district court’s contrary conclusion is 
“clearly erroneous.” Anderson v. Bessemer City, 470 U.S. 
564, 574 (1985) (“Where there are two permissible views of 
the evidence, the factfinder’s choice between them cannot be 
clearly erroneous.”)38

CONCLUSION
The appeal should be dismissed for want of jurisdiction, 

or in the alternative, the judgment of the district court should 
be affirmed.

M ichael E. Rosman 
Hans F. Bader 
C enter for

Individual R ights 
1233 20th Street, N.W. 
Suite 300
Washington, D.C. 20036 
(202) 833-8400

Respectfully submitted,

M ichael A. C arvin* 
David H. Thompson 
Craig S. Lerner 
Cooper, Carvin & 

Rosenthal, PLLC 
1500 K Street, N.W. 
Suite 200
Washington, D.C. 20005 
(202) 220-9600

* Counsel o f Record

38 The sum total of appellants’ purpose case thus reduces to the 
complaint that the district court failed to sufficiently discount the Board’s 
appointment of a black member for the only vacancy available and did not 
put the most nefarious possible spin on certain hearsay statements that 
Board members allegedly conveyed to the appellant-intervenor and another 
civil rights advocate. App. 108a-09a. This quibbling over the import (or 
existence) of, at worst, ambiguous acts and statements is of no consequence 
because “such questions of credibility are matters for the District Court,” 
and this Court will not “second-guess the District Court’s assessment of the 
witnesses’ testimony.” Bush, 517 U.S. at 970, 971. As even the dissent 
conceded, the Board members’ alleged “statements are subject to different 
interpretations” and “standing alone would certainly be insufficient to 
show discriminatory purpose.” App. 133a.