Members of the California Democratic Congressional Delegation v. Benavidez Motion for Leave to File and Amicus Brief of NAACP Legal Defense and Educational Fund

    NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC.

National Office

Suite 1600 
99 Hudson Stieet
New York, N.Y. 10013-2897 (212) 219-1900 Fax: (212) 226-7592

November 4, 1992

Honorable Cathy Catterson 
Clerk, United States Court 
of Appeals for the Ninth 
Circuit

121 Spear Street
P.O. Box 193939
Fan Francisco, CA 94119-3939

Dear Mrs. Catterson:

Re: Members of the California Democratic Congressional
Delegation v. Fong. C.A. No. 92-16260

Enclosed for filing is an executed original and fifteen copies 
of Amicus Curaie NAACP Legal Defense and Educational Fund, Inc.'s 
Brief in Support of Plaintiff-Intervenors and Motion for Leave to 
File the Amicus Brief.

Copies have been forwarded to all counsel of record.

Sincerely

Gailon W. McGowen, Jr.

Contributions are The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part
deductible for U.S. of the National Association for the Advancement o f Colored People
income tax purposes. (NAACP) although LDF was founded by the NAACP and shares its 

commitment to equal rights. LDF has had for over 30 years a separate 
Board, program, staff, office and budget.

Regional Offices

Suite 301 Suite 208
1275 K Street, NW 315 West Ninth Street 
Washington, DC 20005 Los Angeles, CA 90015 
(202) 682-1300 (213) 624-2405
Fax: (202) 682-1312 Fax: (213) 624-0075



JULIUS L. CHAMBERS 
CHARLES S. RALSTON 
GAILON W. MCGOWEN, JR.
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street, 16th Floor 
New York, New York 10013 
(212)219-1900

IN THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT

MEMBERS OF THE CALIFORNIA )
DEMOCRATIC CONGRESSIONAL )
DELEGATION, et al.. )

)PLAINTIFFS, )
)

V S . )

)
SEBASTIAN BENAVIDEZ, et al.. ) C.A. No. 92-16260

)
PLAINTIFF-INTERVENORS, )

)vs. )
)

MARCH FONG EU, et al. . )
)DEFENDANTS. )

_____________________________________________ )

MOTION FOR LEAVE TO FILE AMICUS BRIEF OF 
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND. INC.

The NAACP Legal Defense and Educational Fund, Inc. (the "Legal 

Defense Fund") hereby moves for leave to file this amicus brief on 

behalf of plaintiff-intervenors.

The Legal Defense Fund is a nonprofit corporation which was 
founded in 1940 and which has since furnished legal assistance in 

cases involving claims of racial discrimination and deprivation of 

constitutional rights before state and federal courts throughout 

the nation. See NAACP v. Button, 371 U.S. 415, 421 n.5 (1963) . In the area of



voting rights, the Legal Defense Fund has litigated important cases 

decided by the Supreme Court, see e.g. Thornburg v. Gingles, 478 U.S. 30 (1986);

NAACP v. Hampton County, 470 U.S. 166 (1985); United Jewish Organization v. Carey, 430 

U.S. 144 (1977), this circuit, Garza v. Los Angeles County, 918 F.2d 763 (9th Cir. 

1990), cert, denied, 111 S. Ct. 681 (1991) , and other courts. See Dillard v. Crenshaw 

County, 649 F. Supp. 289 (M.D. Ala. 1986), aff’d in part and remanded, 831 F.2d 246 (11th 

Cir. 1987); Jeffers v. Clinton, 730 F. Supp. 196 (E.D. Ark. 1989), aff’d  mem., I l l  S. Ct. 662 

(1991); PUSH v. Attain, 674 F. Supp. 1245 (N.D. Miss. 1987); Major v. Treen, 574 F. Supp. 

325 (E.D. La. 1983); Jackson v. City o f Jackson, Tenn., 683 F. Supp. 1537 (W.D. Tenn. 

1988).

In light of the Legal Defense Fund's particularized experience 

in litigating voting rights cases, leave is hereby requested to 

file this amicus brief in support of plaintiff-intervenors in an

effort to assist this Court in making a determination on the issues 
presented herein.

Respectfully Submitted
1 ■ ’ _

JULIUS L. CHAMBERS 
GAILON W. MCGOWEN, JR. 
CHARLES S. RALSTON 
NAACP Legal Defense and

Educational Fund, Inc 
99 Hudson Street 
16th Floor 
New York, NY 10013 
(212) 219-1900

November 4, 1992

2



JULIUS L. CHAMBERS 
CHARLES S. RALSTON 
GAILON W. MCGOWEN, JR.
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street, 16th Floor 
New York, New York 10013 
(212) 219-1900

IN THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT

MEMBERS OF THE CALIFORNIA )
DEMOCRATIC CONGRESSIONAL )
DELEGATION, et al.. )

)
PLAINTIFFS, )

)vs. )
)

SEBASTIAN BENAVIDEZ, et al.. ) C.A. No. 92-16260
)

PLAINTIFF-INTERVENORS, )
)VS. )
)MARCH FONG EU, et al.. )
)DEFENDANTS. )

_____________________________________________ )

BRIEF OF AMICUS CURIAE NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC.



TABLE OF CONTENTS

Statement of the Issues ..................................  1
Statement of Jurisdiction ................................ 1
Statement of the Case ....................................  2
Statement of the Facts ...................................  5
Standard of Review .......................................  7
Summary of Argument ......................................  8
Argument:

A. The three judge court erroneously dismissed 
the action based on the doctrine of absention
pursuant to Younger v. Harris, 401 U.S. 37
(1971) ............................................. 9

1. The three judge court failed to consider 
"extraordinary circumstances" mandating 

federal court review ........................  10
a. The quasi-legislative nature of the

state court proceedings ................. 12

b. The failure of the state court to
provide an opportunity to litigate 
federal voting rights claims ............  13

c. The denial by the state court of
intervention by protected minorities
under the Voting Rights Act in the
state proceedings ......................  16

2. The federal three judge court unduly
expanded the Younger abstention doctrine, 
thereby abdicating its constitutional 
obligation to exercise the jurisdiction 
granted by Congress ........................  17

3. The constitutional authority given to 
Congress to protect the voting rights 
of minority citizens and the history 
and continued presence of pervasive 
discrimination in voting dictates that 
federal courts not summarily suspend 
jurisdiction over federal voting rights
claims ......................................  21

Conclusion ...............................................  23
Statement of Related Case ............................... 23

i



TABLE OF AUTHORITIES
CASES

Armstrong v. Manzo,
380 U.S. 545 (1965) ...................................  9, 13

Badham,
712 F .2d at 1 1 7 0 ............................................19

Badham v. U.S. District Court For Northern District of 
California,

721 F. 2d 1170 (9th Cir. 1 9 8 3 ) ........................  9, 18, 19

Beltran v. State of California,
871 F. 2d 777 (9th Cir. 1988) .................................  8

Bianchi v. Griffing,
303 F . 2d 457 (2d Cir. 1 9 6 8 ) ...................................  19

C-Y Development Co. v. City of Redlands,
703 F . 2d 375 (9th Cir. 1983) .................................  18

County of Allegheny v. Frank Mashuda Co.,
360 U.S. 185 (1959) .......................................  10

Duncan v. Poythress,
657 F.2d 691 (5th Cir. 1981) .................................. ll

Edwards v. Sammons,
437 F . 2d 1240 (5th Cir. 1 9 8 1 ) ................................. 18

Eu,
790 F. 2d at 934 ............................................  20

Fresh Int'l Corp. v. Agricultural Labor Relations Board,
805 F. 2d 1353 (9th Cir. 1 9 8 7 ) .................................  8

Gartrell Construction Inc. v. Aubry,
940 F . 2d 437 (9th Cir. 1991) .................................  7

Garza v. Los Angeles County,
918 F.2d 763 (9th Cir. 1990), cert, denied, 111 S.
Ct. 681 (1991) ............................................ 22

Goldberg v. Kelly,
397 U.S. 254 (1970) .......................................  13

Goldie's Bookstore v. Superior Court of the State of 
California,

739 F. 2d 466 (9th Cir. 1984) .................................  8



Harman v. Forssenius, 
380 U.S. 528 (1965) 18, 20

Harrison v. NAACP,
360 U.S. 167 (1959) .......................................  18

Hathorn v. Lororn,
457 U.S. 255 (1982) .......................................  23

Katzenbach,
393 U.S. at 325 ..............................................  22

Kay v. Austin,
621 F.2d 809 (6th Cir. 1980) .................................  18

Lebbos v. Judges of the Superior Court, Santa Clara 
County,

883 F . 2d 810 (9th Cir. 1989) .................................  7

MTM, Inc. v. Baxley,
420 U.S. 799 (1975) .........................................  2

Members of the California Democratic Congressional 
Delegation v. Eu,

790 F. Supp. 925 (N.D. Cal. 1992) .................... 2 , 5 , 6,
7, 12, 15,
17, 23

Middlesex County Ethics Committee v. Garden State Bar
Association,

457 U.S. 423 (1982) ................................  8, 11, 12
Moses H. Cone Memorial Hospital v. Mercury Construction 
Corp.,

460 U.S. 1 (1983) ............................................ 11
New Orleans Public Serv. v. Council of New Orleans,

491 U.S. 350 (1989) .........................................  10

Ohio Civil Rights Commission v. Dayton Christian 
Schools,

477 U.S. 619 (1986) .......................................  16

Partington v. Gedan,
880 F . 2d 116 (9th Cir. 1989) ..................................  7

Polykoff v. Collins,
816 F.2d 1326 (9th Cir. 1 9 8 7 ) ..................................  8

Railroad Commission v. Pullman Co.,
312 U.S. 496 (1941) .......................................  19



Romero v. Caldwell,
455 F.2d 1163 (5th Cir. 1 9 7 2 ) .................................  19

Scott,
381 U.S. at 408 ............................................ 19

South Carolina v. Katzenbach,
383 U.S. 301 (1966) ............................... 21, 22, 23

Thornburg v. Gingles,
478 U.S. 30 ( 1 9 8 6 ) .....................................  14, 17

United Jewish Organization v. Carey,
430 U.S. 144 (1977) .......................................  21

Webster v. Sanders,
376 U.S. 1 (1964)   18

Wilson v. Eu,
54 Cal. 3d 471, 286 Cal. Rptr. 280 , 816~9.2d  1306
(1991)  6,7

Wilson v. Eu, 1 Cal. 4th 707,
4 Cal. Rprt. 2d 379, 823 P.2d 545 ( 1 9 9 2 )........................  7

Wisconsin v. Constantineau,
400 U.S. 433 (1971)   11

World Famous Drinking Emporium Inc. v. City of Tempe,
820 F.2d 1079 (9th Cir. 1 9 8 7 ) ................................  8

Younger v. Harris,
401 U.S. 37 ( 1 9 7 1 ) ........................................Passim

Zwickler v. Koota,
389 U.S. 241 (1967)  ll

STATUTES

S. Rep. No. 97-417, 97th Cong., 2d Sess. 4 (1982) ......................  21

28 U . S . C . Section 1291 .......................................... 2

28 U . S . C . Section 2284(a) .........................................  1

28 U.S.C. Sections 1331, 2284 .................................  10, 22

42 U.S.C. Section 1971 ..................................... 10, 22

IV



Voting Rights Act, 42 U.S.C. Section 1973. (CR i) .............  3

Section 2 of Voting Rights Act of 1965, as amended.
42 U.S.C. Section 1973  Passim

Section 5 of Voting Rights Act of 1965, as amended.
42 U.S.C. Section 1973 (c)  22

OTHER AUTHORITIES

J. Moore, W. Taggert, A. Vestal, J. Wicker & B. Ringle,
M oore’s Federal Practice para. 0.203[1.1] (2nd ed.
1991)  20

Wright, Law o f Federal Courts, Section 52 at 220
(3rd ed. 1976)   11



JULIUS L. CHAMBERS 
CHARLES S. RALSTON 
GAILON W. MCGOWEN, JR.
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street, 16th Floor 
New York, New York 10013 
(212) 219-1900

IN THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT

MEMBERS OF THE CALIFORNIA )
DEMOCRATIC CONGRESSIONAL )
DELEGATION, et al.. )

)
PLAINTIFFS, )

)vs. )
)

SEBASTIAN BENAVIDEZ, et al.. ) C.A. No. 92-16260
)PLAINTIFF-INTERVENORS, )
)VS. )
)

MARCH FONG EU, et al.. )
)DEFENDANTS. )

_____________________________________________ )

BRIEF OF AMICUS CURIAE NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC.

I . Statement of the Issues

Did the three-judge court erroneously dismiss this action 

based on the doctrine of abstention under Younger v. Harris, 401 U.S. 37  

(1971)7

II. Statement of Jurisdiction

The three-judge court in this action was properly convened 

pursuant to 28 U.S.C. Section 2284(a) because the complaint in this



action challenged the constitutionality of redistricted 

congressional districts in the State of California.
On March 3, 1992, the three-judge panel dismissed this action 

based on the doctrine of abstention. See Members o f the California

Democratic Congressional Delegation v. Eu, 790 F. Supp. 925 (N.D. Cal. 1992).

Plaintiff-intervenors filed a motion to alter or amend judgment 

under Fed. R. Civ. Pro. Rule 59(e) on March 17, 1992. Plaintiff- 

intervenors' Rule 59(e) motion was denied by the court on June 10, 
1992. Upon the denial of plaintiff-intervenor's Rule 59(e) motion, 

the judgment of the three judge court became a final judgment, 

disposing of all claims with respect to all parties.

On July 10 1992, plaintiff-intervenors filed their notice of 

appeal. This court has jurisdiction in this case pursuant to 28 

U.S.C. Section 1291. See MTM, Inc. v. Baxley, 420 U.S. 799 (1975) (direct appeal

from three-judge court's dismissal of civil action on procedural 
grounds is to court of appeals).

Ill. Statement of the Case 

a. Nature of the Case

Following the 1990 census, the Legislature of the State of 

California voted to adopt various plans for the Senate, Assembly 

and Congressional districts of California. All of the plans were 

vetoed by the Governor of California. Prior to the completion of 

the legislative process, in response to a petition filed by the 

Governor, the California Supreme Court issued an alternative writ

2



of mandate directing the preparation of a redistricting plan and 
appointed a panel of Special Masters to draft and recommend a 

redistricting plan to that court.
Members of the California Congressional delegation filed the 

case below seeking to enjoin the implementation of a congressional 
plan drafted by the state court-appointed Special Masters. 

Following the issuance of a plan by the Special Masters, plaintiff- 

intervenors intervened on behalf of Latino plaintiffs, alleging 

violations of Section 2 of the Voting Rights Act of 1965, as 

amended, 42 U.S.C. Section 1973 et. seq .. as well as the fourteenth and

fifteenth amendments to the United States Constitution.

b. Proceedings Below

Plaintiffs, members of the California Democratic Congressional 
Delegation, filed this action on September 30, 1991, challenging

various redistricting plans as violative of the fourteenth 

amendment to the United States Constitution and Section 2 of the 

Voting Rights Act, 42 U.S.C. Section 1973. (CR 1). On October. 8, 1991,

Appellee Governor filed a Motion to Dismiss, or in the Alternative, 

to Stay Proceedings on Grounds of Abstention. (CR 9). The three- 

judge court convened a hearing on December 13, 1992, and declined 

to rule on the pending motion. However, the court expressly ruled 

that its decision to delay ruling did not constitute abstention. 

(CR 32) . Instead, although the California State Supreme Court had 

not yet approved the plans drawn by its Special Masters, the court 

ordered the parties to brief all issues presented by those plans.

3



On December 16, 1991, plaintiff-intervenors filed a Motion to 
Intervene (CR 34), and on December 23, 1991, filed a Motion for 

Preliminary Injunction. (CR 53) . Plaintiffs California 
Congressional Democrats filed their Motion for Preliminary 

Injunction on December 18, 1991. (CR 39). On January 21, 1992, 
oral argument was heard on all pending motions, and the court below 

granted plaintiff-intervenors' Motion to Intervene, but limited 

intervention to challenges to congressional districts. (CR 108) . 
The district court declined to hear plaintiff-intervenors' 

challenge to State Assembly and Senate plan and plaintiff- 
intervenors' claims regarding the impact of the undercount of 

minorities in the 1990 Census on the voting rights of Latinos under 

the Special Masters' plans. At the January 21, 1992 hearing, 

plaintiff-intervenors made an oral motion for reconsideration of 

the limited nature of the intervention, which was taken under 
submission and never ruled upon by the court below. (CR 108) .

The California Supreme Court approved the Special Masters' 

recommended plans on January 27, 1992. On January 28, 1992, the 

court below denied plaintiffs and plaintiff-intervenors' motions 

for injunctive relief. (CR 116). On March 3, 1992, the district 

court dismissed this action on grounds of abstention under Younger 

v. Harris, 401 U.S. 37 (1971). (CR 117). On March 17, 1992, plaintiff-

intervenors filed a Motion for Reconsideration under Fed. R. Civ. 

P. 59(e); the Rule 59(e) motion was denied by the district court on 

June 10, 1992. (CR 132). Plaintiff-intervenors filed a Notice of 

Appeal in this Court on July 10, 1992. (CR 132). Plaintiffs

4



Congressional Democrats have not appealed' the dismissal of this 

action.

IV. Statement of the Facts

Following the 1990 census, the California Legislature began 

the redistricting process for state legislative and congressional 

districts. Eu, 790 F. Supp. at 927. The legislative process consisted

of committee and subcommittee hearings held by the Assembly and 
Senate on plans prepared by consultants and/or committee staff. 

The committee process provided for limited oral public testimony, 

with no opportunity for presentation of sworn testimony, discovery, 
cross-examination of witnesses or extensive legal argument. (CR 

120) .
On September 6, 1991, defendant Governor Pete Wilson filed a 

petition with the California Supreme Court alleging the failure of 

the legislature to produce a redistricting plan and requesting the 

court to assume jurisdiction. Eu, 790 F. Supp. at 927. The petition

named governmental bodies and elected officials as respondents 

and/or real parties in interest; the petition did not name any of 
the protected groups covered by the Voting Rights Act. Shortly 

thereafter, the California Legislature presented the Governor with 

three redistricting plans, which were vetoed by the Governor on 

September 23, 1991. Id , On the same day, the Legislature failed

to override the Governor's veto and recessed for the remainder of 
the year. (CR 120).

On September 25, 1991, five days before the commencement of

5



the instant action, the California Supreme Court exercised its 

original jurisdiction and issued a writ of mandate compelling the 

preparation of redistricting plans. Wilson v. Eu, 54 Cal.3d 471, 286 Cal.

Rptr. 280, 816 P.2d 1306 (1991). The court indicated that no entities 

other than the real parties in interest would be allowed to 

intervene in the proceedings. In other words, racial minorities 

protected under the Voting Rights Act were not allowed to 
intervene; such federally protected groups, including plaintiff- 

intervenors, were resigned to the role of amicus curiae. (CR 120).

The California Supreme Court appointed three special masters 

to draft a redistricting plan for the State of California. In 

creating the redistricting plan, the court directed that the 

special masters adhere to the United States Constitution, the 
Voting Rights Act, the California Constitution and state criteria 

developed in prior litigation. Eu, 790 F. Supp. at 92 7.

On October 8, 1991, the Special Masters issued a Notice of 
Hearings Before the Special Masters on Reapportionment and Rules of 

Hearings. The notice announced a schedule of six days of hearings 

to be held between October 24, 1991 through November 1, 1991, in 
Sacramento, San Francisco, San Diego and Los Angeles. The rules 

provided that persons not named as parties would need to request 

permission to participate in the hearing. Plaintiff-intervenors 

requested permission and were allowed one hour for oral argument. 

(CR 120). On November 19, 1991, the Special Masters filed their 

report and recommendations with the California Supreme Court. The 

report included newly created plans for redistricting the

6



legislative districts of both houses of the state legislature and 

the congressional seats. Eu, 790 F. Supp. at 927. The report did not

contain any findings of fact relative to any federal claims raised 
during the course of the public hearings. Indeed, with respect to 
issues pertaining to the Voting Rights Act, the Special Masters 

expressly stated that they were not attempting to resolve all 

evidentiary or legal issues under the Act. (CR 120).

On January 13, the court held a hearing to entertain 

objections to the Special Masters' plans. Plaintiff-intervenors 
were allowed twenty minutes to present its oral argument. The 

court did not provide any opportunity for discovery or cross- 

examination of the experts and other consultants that assisted the 

Special Masters. No opportunity was afforded to present direct 
expert testimony in support of federal claims. In sum, there 

existed no opportunity to litigate objections by means of a full 

trial on the various complex legal and factual issues raised. (CR 

120) .
On January 27, 1992, the California Supreme Court issued its 

opinion adopting the Special Masters' plans with certain 

modifications. See Wilson v. Eu, 1 Cal. 4th 707, 4 Cal. Rprt. 2d 379, 823 P.2d 545

(1992).

V. Standard of Review

A district court's decision to abstain under Younger v. Harris, 401 

U.S. 37 (1971) is reviewed de novo. Gartrell Construction Inc. v. Aubry, 940 F.2d

7



437, 441 (9th Cir. 1991); Partington v. Gedan, 880 F.2d 116, 120 (9th Cir. 1989); Lebbos v. 

Judges o f the Superior Court, Santa Clara County, 883 F.2d 810, 813 (9th Cir. 1989); Beltran 

v. State o f California, 871 F.2d 777, 781 (9th Cir. 1988); Polykoff v. Collins, 816 F.2d 1326, 

1332 (9th Cir. 1987); Fresh Int’l Corp. v. Agricultural Labor Relations Board, 805 F.2d 1353, 

1356 n.2 (9th Cir. 1987); World Famous Drinking Emporium Inc. v. City o f Tempe, 820 F.2d 

1079, 1081 (9th Cir. 1987); Goldie’s Bookstore v. Superior Court o f the State o f California, 739 

F.2d 466, 468 (9th Cir. 1984).

VI. Summary of Argument

The United States Supreme Court has stated that "Younger v. Harris, 

supra, and its progeny, espouse a strong federal policy against 

federal court interference with pending judicial proceedings absent 

extraordinary circumstances. " Middlesex County Ethics Committee v. Garden

State Bar Association, 457 U.S. 423, 431 (1982) (emphasis added). Thus, in the

present action, the lower court's decision to abstain is clearly 

erroneous because it failed to recognize three 'extraordinary 

circumstances' which justify federal court review: 1) the quasi­

legislative nature of the state court proceeding; 2) the lack of an 

adequate opportunity to present and litigate federal voting rights 

claims; and 3) the denial by the state court of intervention by 
protected minorities under the Voting Rights Act.

The state court, which both drafted and reviewed the 

districting plans at issue, has acknowledged that it was ill- 

suited to conduct a proper Section 2 evaluation and was comfortable

8



deferring to the greater expertise of the federal court. Wilson, 

Memorandum Opinion, page 34-35 (January 27, 1992). Protected racial groups,

who were not allowed to intervene in the state proceedings, were 
therefore not given an opportunity to obtain a legally sufficient 

appraisal of the Section 2 viability of the plans. In addition, 

because the parties could not engage in discovery, examine and 

cross-examine witnesses, the state court violated the dictates of 

due process by not allowing the parties an opportunity to conduct 

the rigorous, fact-intensive scrutiny of minority political 

participation required under the Voting Rights Act. See Armstrong v. 

Manzo, 380 U.S. 545, 552 (1965) (due process requires that, where a right to he heard exists, 

it must be accommodated "at a meaningful time and in a meaningful manner") .

Also, in recognizing the fundamental importance of the right 

to vote, Badham v. U.S. District Court For Northern District o f California, 721 F.2d 1170,

1172 (9th Cir. 1983), no federal court has applied to rigid Younger 

doctrine of abstention to a federal voting rights action. Thus, 

the application of the Younger doctrine in the present action

represents an unwarranted expansion of the Younger abstention

doctrine and resulted in the complete denial of the opportunity of 

protected racial groups to receive an independent Section 2 review 

of redistricting plans developed and adopted by a quasi-legislative 
state court.

VII. Argument

A. The three-iudge court erroneously dismissed the action

9



based on the doctrine of abstention pursuant to Younger v. Harris, 
401 U.S. 37 (1971).

1. The three judge court failed to consider "extraordinary 
circumstances" mandating federal court review.

Because of the fundamental importance of the right to vote,

Congress has specifically vested federal three-judge courts with

jurisdiction over challenges to redistricting plans arising under

the Constitution and the Voting Rights Act. See 28 U.S.C. Sections 1331,

2284; 42 U.S.C. Section 1971. Accordingly, the district court has a 

"virtually unflagging" obligation to adjudicate these claims. New 

Orleans Public Serv. v. Council o f New Orleans, 491 U.S. 350, 359 (1989) (quoting Colorado 

River Water Conservation District v. United States, 424 U.S. 800, 814 (1976)).

"Abdication of the obligation . . . can be justified under

[the abstention] doctrine only in the exceptional circumstances 
where the order to the parties to repair to the state court would 

clearly serve an important countervailing interest." County o f

Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-89 (1959). This is because the

doctrine of abstention "is an extraordinary and narrow exception to 

the duty of a District Court to adjudicate a controversy properly 

before it." Id A Thus, in abstention cases, the task is "not to

1 The extraordinary nature of abstention stems from the duty 
of decision imposed by Congress upon the district courts.

Congress could, of course, have routed all 
federal constitutional guestions through the 
state court systems, saving to [the Supreme]
Court the final say when it came to review of 
the state court judgments. But our First 
Congress resolved differently and created the 
federal court system and in time granted the

10



find some substantial reason for the' exercise of federal

jurisdiction by the district court; rather, the task is to 
ascertain whether there exist 'exceptional' circumstances, the 
'clearest of justifications,' that can suffice . . .  to justify the 

surrender of that jurisdiction." Moses H. Cone Memorial Hospital v. Mercury

Construction Corp., 460 U.S. 1 (1983)(original emphasis).

Since abstention is the exception rather than the rule, the 

Supreme Court has required a finding of "special circumstances" 
before allowing a district court to deny a federal plaintiff the 
forum that he has lawfully chosen for the resolution of his 

constitutional claims. Zwickler v. Koota, 389 U.S. 241 (1967); Wright, Law of

Federal Courts, Section 52, at 220 (3rd ed. 1976) ('The Court continues to require ’special 

circumstances’ to justify abstention") . As noted by the Supreme Court, "Younger 

v. Harris, supra, and its progeny, espouse a strong federal policy 

against federal court interference with pending judicial 

proceedings absent extraordinary circumstances." Middlesex County Ethics

Committee 457 U.S. at 431 (emphasis added) .

In the present action, the three judge court abstained,

federal courts various heads of jurisdiction, 
which today involve most federal 
constitutional rights . . .

. . . We would negate the history of the
enlargement of the jurisdiction of the federal 
district courts, if we held the federal courts 
should stay its hand and not decide the 
question before the state courts decide it.

Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971) (footnote omitted); Duncan v. Poythress, 
657 F. 2d 691 (5th Cir. 1981).

ll



thereby dismissing the case pursuant to Younger v. Harris, 401 U.S. 37  

(1971).2 The court's decision to abstain is clearly erroneous

because the court failed to recognize three 'extraordinary 
circumstances' which justify federal court review: 1) the quasi­

legislative nature of the state court proceeding; 2) the lack of an 
adequate opportunity to present and litigate federal voting rights 

claims; and 3) the denial by the state court of intervention by 

protected minorities under the Voting Rights Act.

a. The Quasi-Legislative Nature of the State Court
Proceedings.

As acknowledged by Judge Tang, the state court acted in a 

quasi-legislative capacity and drafted the redistricting plans. Eu, 

790 F. Supp. at 937 (Tang J., dissenting). The hearings held by the Special

Masters were legislative in character. For example, no discovery 

was allowed and no party was given the opportunity to present 

expert testimony under oath. Nor were parties allowed to cross- 

examine witnesses regarding the factual and empirical basis for the 

legal sufficiency of various redistricting plans. Thus, the 

hearings held by the Special Masters were designed to satisfy the

2 The three judge court applied the Younger test of abstention 
as set out in Middlesex County v. Garden State Bar Association, 457 U.S. 423 (1982) , 
and found that 1) there was an ongoing state proceeding; 2) the 
state proceeding implicated important state interests; and 3) there 
was an adequate opportunity in the state proceeding to raise 
constitutional challenges. With respect to the last finding, the 
court expressly noted that there was "no doubt that the state 
proceeding here provided the required due process for the 
adjudication of the federal issues." Eu, 790 F. Supp. at 93 2. The court 
also found that abstention caused no delay with regard to the 
plaintiff's right to vote. Id .

12



state court's mandate to draft redistricting plans, not to hold a 

trial on the merits.
Likewise, consistent with the hearings held by the Special 

Masters, the California Supreme Court's proceedings were 
legislative in character. The court did not order a full trial on 

the merits to consider the Section 2 viability of the plans before 

it. The court simply allowed the parties and other interested 

persons the opportunity to brief relevant issues and engage in 

limited oral argument. Consistent with the hearings before the 
Special Masters, parties were allowed no opportunity to engage in 

discovery, cross-examine witnesses, or examine expert witnesses 

under oath. The California Supreme Court simply acted as both the 

drafter and reviewer of the redistricting plans before it, thereby 
affording the protected racial groups under the Voting Rights Act 

no opportunity to obtain an independent appraisal of the Section 2 
viability of the plans at the state level.

b. The Failure of the State Court to Provide an
Opportunity to Litigate Federal Voting Rights Claims.

Contrary to the dictates of due process, plaintiff-intervenors 

were not allowed the opportunity to establish that the plans 

adopted by the state court comply with Section 2 of the Voting 

Rights Act. See Armstrong v. Manzo, 380 U.S. 545, 552 (1965) (due process requires that,

where a right to be heard exists, it must be accommodated "at a meaningful time and in a

meaningful manner."); Goldberg v. Kelly, 397 U.S. 254 (1970) . As noted above, the

state proceeding fell far short of providing plaintiff-intervenors 
the opportunity to litigate their federal voting rights claims.

13



There existed no opportunity to engage in discovery, cross-examine 

witnesses, or examine expert witnesses under oath to determine the 
factual and empirical basis for the sufficiency of the plans under 
the Voting Rights Act.

Pursuant to the Supreme Court's directive in Thornburg v. Gin^es, 

478 U.S. 30 (1986), a Section 2 violation is measured, in part, by the

availability of less dilutive alternatives. Thus, to pass Section 
2 muster, a proposed district must be composed of minorities who 
are, among other things: 1) politically cohesive; 2) sufficiently 
large and geographically compact to constitute a majority in a 

single member district; and 3) victims of racially polarized 

voting. See Gingles, 478 U.S. at 49-50. By engaging in a searching

practical evaluation of the past and present reality, id . at 45, and 

making an intensely local appraisal of the political process, id . 

at 79, a district should be fashioned that affords protected 

minorities a realistic opportunity to participate in the political 

process and elect their candidates of choice. Id . at 44.

In the present case, an intensely local appraisal was not 
performed by the state court to determine if the districts in the 

Special Master's plan afford protected minorities an equal 

opportunity to elect their candidates of choice.3 Plaintiff-

3 In this regard, the Special Masters expressly noted that 
relevant evidence to determine the sufficiency of the proposed 
districts under Section 2 was not available to it and therefore not 
considered. The Masters stated the following:

In preparing our re-districting plans, we 
determined that it is important to eliminate,

14



intervenors simply were not afforded the opportunity to present any 

evidence regarding the Section 2 viability of the Special Master's 

plans.
Because no evidence was presented regarding plaintiff- 

intervenors' Section 2 claims, "the quasi-legislative California 

Supreme Court proceeding produced no express findings or 

conclusions of law responding to the plaintiffs' contentions." Eu,

790 F. Supp. at 937 (Tang, J., dissenting). Indeed, the state court

acknowledged that it did not attempt to resolve those issues of

federal voting law when it stated:

Although we likewise approve the Master's 
interpretation and application of the Voting 
Rights Act, we acknowledge that any questions 
arising thereunder are essentially ones of 
federal law, and that any definitive answers 
to these complex questions ultimately must be 
provided by the United States Supreme Court.

Wilson, Memorandum Opinion, page 34-35 (January 27, 1992). Instead, the court

relied on the admitted incomplete Section 2 analysis performed by 

the Special Masters to conclude that "a federal Voting Rights Act 

challenge would lack merit." Slip. op. at 35 .

The Supreme Court has made it clear that the doctrine of

or at least minimize, any possibility of their 
being challenged under Section 2. The 
ultimate success of any such challenge would 
depend not only on the composition of the new 
districts themselves but also on evidence, not 
now before us. of historic voting patterns or 
socio-economic data, and probably also on 
resolution of open legal questions concerning 
interpretation or application of the Act.

Special Masters Report, page 9 (emphasis added).

15



abstention under Younger is satisfied only where the state 

proceedings provide the parties a full and fair opportunity to 

litigate their constitutional claims. See Ohio Civil Rights Commission v.

Dayton Christian Schools, 477 U.S. 619, 627 (1986) ("We have also applied [Younger] to state 

administrative proceedings in which important state interests are vindicated, so long as in the 

course o f those proceedings the federal plaintiff would have a full and fair opportunity to litigate 

his constitutional claim") In the present action, plaint if f-intervenors

did not have a full opportunity to litigate their Section 2 claims 
pursuant to the dictates of due process. Thus, abstention under 

Younger was improper.

c. The denial bv the state court of intervention by 
protected minorities under the Voting Rights Act in the 
state proceeding.

On September 25, 1991, the California Supreme Court issued an 
order stating that no entities other than real parties-in-interest 

would be allowed to intervene in the state proceedings. The order 

thus limited intervention to the California Senate and Assembly, 

members of the California Legislative Delegation and the State 

Board of Equalization. The effect of the order was to exclude 

protected groups under the Voting Rights Act from having a 

meaningful opportunity to participate in the creation of 
legislative districts, the composition of which must afford 

minority citizens an equal opportunity to participate equally in 
the political process and elect their candidates of choice in 

compliance with Section 2.

In excluding racially protected groups from the lawsuit, the

16



state court denied the opportunity to fully participate to those 

groups in the best position to present evidence regarding the 

effect of the proposed plans on Hispanic and African American 

voting strength. As noted above, Gingles requires courts to conduct

a searching practical evaluation of the past and present political 

reality in a given jurisdiction. Gingles, 478 U.S. at 45 . Minority

groups possess the most knowledge regarding assessments of the 

political realities that exists in their communities. Thus, by 

denying intervention to minority groups, the court foreclosed their 
opportunities to fully participate and accorded nominal status to 

those groups most knowledgeable about relevant evidence regarding 

the Section 2 impact of the plans on their community.

Moreover, in abstaining, the three judge court noted that 

"[t]he availability of federal review by means of a petition to the 

United States Supreme Court is a sufficient answer to the concern 

that there be a federal forum for adjudication of federal rights." 

Eu, 790 F. Supp. at 930 (citing Younger, 401 U.S. at 57 n .3 ). However, by limiting

the status of protected racial groups to that of amicus curiae, the 

state court denied such groups from having a voice in the 

determination of whether to pursue Supreme Court review. 

Abstention, therefore, effectively foreclosed to the very groups 

protected under federal law any opportunity to seek judicial review 

of their important federal voting rights to the Supreme Court.

2. The federal three-judge court unduly expanded the Younger 
abstention doctrine, thereby abdicating its constitutional

17



obligation to exercise the jurisdiction granted by Congress.
An alleged denial of voting rights does not, in itself, 

constitute a "special circumstance" which automatically precludes 

federal court abstention. See Harrison v. NAACP, 360 U.S. 167 (1959); C-Y  

Development Co. v. City o f Redlands, 703 F.2d 375, 381 (9th Cir. 1983) (there is no per se 

civil rights exception to the abstention doctrine). However, in deciding whether 

or not to abstain, a federal court "must . . . take into

consideration the nature of the controversy and the particular 

right sought to be enforced." Edwards v. Sammons, 437 F. 2d 1240, 1243 (5th

Cir. 1981); Badham v. U.S. District Court For Northern District o f California, 721 F.2d 1170, 

1172 (9th Cir. 1983) ( 'Abstention in voting rights cases requires special consideration and 

solicitude for the cardinal federal rights involved") . In this regard, both the

Supreme Court, this Circuit and other federal courts have 
demonstrated a reluctance to order abstention in cases involving 

voting rights. See Harman v. Forssenius, 380 U.S. 528, 537 (1965); Badham, 721 F.2d

at 1173; Kay v. Austin, 621 F.2d 809 (6th Cir. 1980); Edwards, 437 F.2d 1240. This is

because the right to vote "is fundamental . . . [and] preservative 

of all rights. " Harman, 380 U.S. at 537 (quoting Yick Wo v. Hopkins, 118 U.S. 356

(1886). "Other rights, even the most basic, are illusory if the 

right to vote is undermined." Webster v. Sanders, 376 U.S. 1 (1964). This

Circuit in particular has cautioned that:

The fundamental importance of the right to 
vote and the special dangers posed to that 
right by delay require a different approach to 
abstention orders in voting rights cases. We 
need not decide whether this different 
approach is in essence a separate requirement

18



or merely a background against which to apply 
the traditional three-part test. We do hold 
that before abstaining in voting cases, a 
district court must independently consider the 
effect that delay resulting from the 
abstention order will have on the plaintiffs' 
right to vote. Although we are mindful of the 
important principles of federalism implicit in 
the doctrine of abstention, these principles 
may be outweighed in an individual case by the 
countervailing interest in ensuring each 
citizen's federal right to vote.

Badham, 721 F.2d at 1173.

In recognizing the fundamental importance of the right to 

vote, those courts that have abstained in voting cases have applied 

the doctrine of abstention as set out in Railroad Commission v. Pullman

Co., 312 U.S. 496 (1941), thereby deferring the federal proceedings and 

retaining jurisdiction of the action during and subsequent to the 

pendency of the state action. See, e.g., Badham, 712 F.2d at 1170; Bianchi v.

Griffing 303 F.2d 457 (2d Cir. 1968); Romero v. Caldwell, 455 F.2d 1163 (5th Cir. 1972); 

Scott v. Germano, 381, U.S. 407 (1965).* Thus, although federal courts have 

previously abstained in voting rights cases, no federal court has 

ever applied the rigid Younger doctrine of abstention to cases

involving voting rights. Therefore, in defiance of the Supreme 
Court's pronouncement that "[t]he right to vote freely for the 

candidate of one's choice is of the essence of a democratic

4 In Scott the Supreme Court, while not invoking the Younger 
doctrine of abstention, did not expressly apply Che. Pullman doctrine 
of abstention. In recognizing the important interest of the state 
in reapportionment, the Court deferred the federal action in order 
to afford the state an opportunity to formulate a valid 
redistricting plan. Scott, 381 U.S. at 408.

19



society, and any restrictions on that right strike at the heart of 

representative government", see Hannan, 380 U.S. at 537 (quoting Reynolds v.

Sims, 377 U.S. 533, 555 (1964), the three-judge court unduly expanded the 

Younger doctrine of abstention to voting rights cases, thereby 

"slam[ing] shut the federal courthouse door" to protected racial 

groups under the Voting Rights Act. Eu, 790 F.2d at 934 (Tang J., dissenting).

Under the harsher Younger doctrine of abstention, the federal

action is dismissed and the opportunity for federal court review of 

fundamental federal voting rights claims is irrevocably lost. 1A

J. Moore, W. Taggert, A. Vestal, J. Wicker & B. Ringle, M oore’s Federal Practice para. 

0.203[1.1] (2nd ed. 1991). Because of the rigidity of the Younger doctrine

of abstention, the effect of its application in the present voting 

rights case is devastating. In the instant action, plaintiff- 
intervenors were not allowed to intervene nor given an adequate 

opportunity to litigate their important voting rights claims in the 
state court. Their only recourse in pursuing their claims was to 

litigate in a federal forum. By abstaining under Younger, the lower

court foreclosed the only opportunity available to plaintiff- 

intervenors to pursue their voting rights claims. Thus, the 

decision of the three-judge court to abstain pursuant to Younger

represents an unwarranted expansion of the Younger abstention

doctrine and resulted in the complete denial of the opportunity of 

protected racial groups to receive an independent Section 2 review 

of redistricting plans developed and adopted by a quasi-legislative

20



state court.

3. The constitutional authority given to Congress to protect 
the voting rights of minority citizens and the history and 
continued presence of pervasive discrimination in voting 
dictates that federal courts not summarily suspend 
jurisdiction over federal voting rights claims.

In invoking the Younger doctrine of abstention, the three-judge

court indicated its preference for procedural convenience and

efficiency in surrendering the exercise of federal jurisdiction

over substantive claims of minority vote dilution claims. In so
doing, the court ignored the history of discrimination in voting
and its relevance to the involvement of the federal judiciary in

the area of civil rights. The court similarly ignored the fact
that Congress enacted the Voting Rights Act in order to enforce

constitutional guarantees embedded in the fifteenth amendment to

the United States Constitution. South Carolina v. Katzenbach, 383 U.S. 301

(1966). To summarily relinguish the enforcement of this fundamental 

constitutional guarantee would confound the intention of Congress 

and deprive minority citizens of a federal forum to ensure 

impartiality and fairness in the review of important constitutional 
rights.

Congress enacted the Voting Rights Act of 1965 to "attack the 

shameful blight of voting discrimination." S. Rep. No. 97-417, 97th Cong.,

2d Sess. 4 (1982); United Jewish Organization v. Carey, 430 U.S. 144, 156 (1977).

Because of the history of discrimination that minorities have 

endured through discriminatory schemes enacted by state

21



legislatures and enforced by state judiciaries, Congress, in 

enacting the Voting Rights Act, identified the right to vote as 

deserving of special protection, see Katzenbach, 383 U.S. at 785, and

vested in federal courts jurisdiction to eradicate all vestiges of 

discrimination with respect to voting. See 28 U.S.C. Sections 1331, 2284;

42 U.S.C. Section 1971.

The continued presence of discrimination against minorities in 

the exercise of their voting rights dictates that federal courts 

should not summarily veto a claimant's decision to pursue federal 
voting rights claims in federal court. In 1982, Congress, in 

extending the coverage of Section 5 of the Voting Rights Act, 
expressly stated that minority voters still face impediments to 

voting, and identified "annexations; the use of at-large elections, 

majority vote requirement, or numbered posts; and the redistrictina 

of boundary lines" as the discriminatory devices most commonly 

employed to dilute minority voting strength. Senate Report, p. 10 .

That such blatant discrimination still exists today is evident by 

the finding in 1990 of discrimination against Hispanics in the 

redistricting of the Los Angeles County Commission. See Garza v. Los

Angeles County, 918 F.2d 763 (9th Cir. 1990), cert, denied, 111 S. Ct. 681 (1991).

Congress has full power to effectuate the constitutional 

prohibition against racial discrimination in voting. Katzenbach, 393

U.S. at 3 2 5. This power is derived from the fifteenth amendment to 

the United States Constitution, which guarantees to all minority 

citizens the right to exercise the franchise. Id . Pursuant to the

22



power imposed on Congress by the Constitution, Congress enacted the 
Voting Rights Act in order to provide federal courts with renewed 

strength to battle discriminatory measures designed to limit the 

voting power of minorities. Eu, 790 F. Supp. at 935 (Tang, J., dissenting);

Hathom v. Lorom, 457 U.S. 255, 268-71 (1982) (Rehnquist, J., dissenting). Expansion 

of the Younger doctrine of abstention to voting rights matters,

thereby depriving protected minority groups of an independent 
federal forum, would therefore frustrate the intent of Congress to 

"rid the country of racial discrimination in voting", Katzenbach, 383

U.S. at 31 5, and utterly ignore the past and present pervasive 

discrimination exercised against minorities in voting.

VIII. Conclusion
For the foregoing reasons, amicus curaie NAACP Legal Defense 

and Educational Fund, Inc., respectfully request the Court to 

reverse the judgment of the three-judge court and remand this 

action with instructions to conduct a trial on the merits.

IX. Statement of Related Case

Counsel is not aware of any known related cases currently 
pending in this Court.

23



Nzi
Respectfully submitted,

- / ' ' V T
i i / Ik /C>'j

JULIUS L. CHAMBERS 
GAILON W. MCGOWEN, 
CHARLES S. RALSTON

JR.

NAACP Legal Defense and 
Educational Fund, Inc. 

99 H u d s o n  S t r e e t
16th Floor
New York, New York 10013 
(212) 219-1900

November 4, 1992

24



CERTIFICATE OF SERVICE

The undersigned counsel hereby certifies that copies of amicus 

curaie NAACP Legal Defense and Educational Fund, Inc.'s Brief in 

Support of Plaintiff-Intervenors and Motion for Leave to File the 
Amicus Curaie Brief were forwarded this 4th day of November to the 

following counsel via first class mail:

Oliver Cox 
Anthony Miller 
Office of the Secretary 

of State
Executive Office 
Legal Department 
1230 J. Street, Room 209 
Sacramento, CA 95814
Robert Broadbelt 
Brown & Woods 
450 North Roxbury Drive 
7th Floor
Beverly Hills, CA 90110

Barbara Brenner 
Joseph Remcho
Remcho, Johansen & Purcell 
220 Montgomery Street, #800 
San Francisco, CA 94104

DATED: November 4, 1992

Jonathan Steinberg 
Irell & Manella 
800 Avenue of the Stars 
Suite 900
Los Angeles, CA 90067-4275

Manuel M. Medeiros 
Deputy Attorney General 
1515 "K" Street, Suite 511 
P.O. Box 944255 
Sacramento, CA 94244-2550

Denise Hulett
Mexican American Legal Defense 

and Educational Fund 
182 Second Street 
2nd Floor
San Francisco, CA 94105

N • JUi / 7) /i IP? C PW
Gailon W. McGowen, Jr. 
NAACP Legal Defense and 

Educational Fund, Inc. 
99 Hudson St., 16th Floor 
New York, New York 10013 
(212) 219-1900 
ATTORNEY FOR PLAINTIFF- 

INTERVENORS