Major v. Treen Memorandum Opinion

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Major v. Treen: Combatting Black Voter Dilution in Louisiana

    UNITED STATES DISTRICT COURT

EASTERN DISTRIqT OF LOUISIANA

BARBARA !IA.JOR, ET AI..,

PIalnt,iffs,
versus

DAVID C. TREEN, ETC., ET AL.,

Defendants.

Bef,ore Pol1Ez, Circuit Judge,
Judges.

Politz, Circult Judge 3 .

:

a

Indivtdually and on behalf of all black persons residlng and

reglstered to vote 1n Louisiana, platntiffs Barbara ttajor,

t{ichael Darnell, Bernadine St.Cyr, Brenda Quant and Annie A.

Snart brought suit under the thirteenth, Eourteenth and FifEeenth

trnendments to the Constitutlon, thc Civil Rights Act of I87I , 42

U.S.C. S 1983, 5 2 ..rf the Voting nights Act, as amended, 42

U.S.C. S 1973, and 28 U.S.C. SS 220L and 2202, seeking

declaratory and injunctive relief restraining use of Ehe recent

realignment of the Etaters congressional dist,ricts, Act 20 of Ehe

l98I Flrst Extraordinary Session of 
.Ehe 

Louisiana Legislat,ure.

Jurisdiction is based on 28 U.S.C. SS 1331 and 1343, and 42

U.S.C. S f973j. The gravamen of plaintiffsr claims is that Act

20 was designed and has Ehe effect of cancelling, mlniruizing or

dituting minority voEing sErength by dispersing a black
r=E

t---';::.=

Sep Zl'

Civll Action No. 82-LL92
Sect,ion C

UE!,iORANDUU OPINION

a

Cassibry .and Collins, District
:

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CLiri.'r

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PoPulation. majority in orleans Parish into two congressional
districts. The quest,lon poslted is whether legislaEion dividing
a highly concentrated black Snpulation exisEing in one geographic

and politicar unit, a parish, into two disEricts, rather lhen
placing thern in a singre district in which blacks would
constituEe a majority, deprives Louisiana,s black voEers oE the
rlght to effective participation in the erectorar process.

Facts and procedural Historv 
:

rn November r98r, Act 20 of th; Loutsiana Legisrature's
First Extraordinary session of 198I apportioned the seaEe into
elght single-member congressional disEricts. Act tr oE that
session established new state represenEative districEs. Both
enactments were submiEt,ed Eo Ehe AEt,orney General of t,he united
SEates for preclearance under S 5 oE Ehe Voting Rights Act, 42

u.s.c. s 1973c.1 prior Eo action by Ehe AEEorney General,

1. Sectlon 5 ?f the vo-ting RighEs Act of 1965, 42 u.s.c. lg.73c,requires a staLe or poliuital lubdivision covered Uy-tfre Act toobEaln precrearance from the Attorney General of the unitedStates or t,hrou_gh the DisErict cour! roi tte -o1si.i& of columbiarhenever it adopts or seeks to administer any change in itsquallflcations., prerequisites, standards, practi6es-oi irocedureswith respect Eo voting. .To receive prlclear";a;, -ir," proposedchange.must have neither the purpose nor the effecd oi aeiryi;g-;;abridging the r_ight to vote on. account of raci. tr," AttorneyGenerarrs preclearance deEermirlaEion does ;;t fiecermic asubsequent action:
' Neither an affirmaEive ind icat ion by theAttorley General thac no objection wftt be(footnote continued)



pralntiffs. filed Ehe lnEtant suit attacking both prans on

statutory and constltutlonal grounds. fhe case was assigned Eo

Ehe docket of Judge Robert B. colllns. on June r, 1992, the
Justicc Department lnterposed a S 5 obJectlon Eo Act l, rendering

that leglslation unenforceable. 42 U.S.C. S 1973c.

Judge collins denied as moot plalntlffs. motion Eo

consolidate their complalnt with one Elled by a prospective

congreEltional candidate which was later disoissed for want of a

Justlclable case or controversy. Robert E. couhiq, Jr. v. JamFs

L. Brown, secretarv of s€ate, c.A. No. 82-113G-D 
.(E.D.La. ) .

DefendantsI notion seeking a separate triar of the claims of

nade, nor the Attorney General'E failure Eoobject, . . . shall bar a subsequent action Eo
enjoin enforcement of such gualification,prerequisiter stilndardr pEitctlcer o!procedure.

42 u.S.C. S 1973c.

Private plaint,iffs are free to rnount a de novo attack upon a
reapportionment plan notwlEhstandlng precleaFanil unit,ed Statesv. Eas lar ish School Bd . , 59 4 F. 2d 5G i-SE-;ffiEE'

*!9, 432 U.S. 491, 506-07 (L977 )(iwhere the ?T3c@ir or- in Liitu.L.r is noEdetected upon review of Ehe Attorney General, it can bechallenged 1n traditlonal cons!it,ut-ional tot staturory]lltlgation. But 1t cannot be questi,oned in a suit seekiii
Judicial review of the Attorney Generalts [decision]."y. SinciEhe statuLory standards of review under S 5 diffef from Ehoseestabrished by amended S 2, Report on s. 1992 of the senaEe
comnittee on Ehe -Judiciary, s.Rep. No. 97-4L7, 97th cong., zdsess. (r982) at_ 68, L38-39, a grant or denial of preclelrancepursuant to s 5 is not disposit,ive of a s 2 claim. Hence lreconclude that the Assistant Attorney Generalr s preclearance
determlnation has no probaEive value in- the,insEanE cise.



EalaPPort,lonmenE of congresElonal and state representative
distrlcts was granted. Actlng on plalntiffsr uncontested notion
for partial Eurunary judgmenE, Judge Collins declared the Lg16

congressional disEricting plan, Act 697 0f the 1976 Louisiana
Legislature, unconsEit,utional because of rarge popuration
varlances among districts when viewed ln light of data developed

in the 1980 census.

This three-judge court. was designated by Chief Judge Charles
clark of the Fifth circuir court of Appeals on June 10, 19g2. gn

June 18, 1982, Act zo was . precleared by the Attorney Generar.
After Act r, as subsequentry modified by the Louislana
Legtslatur€ r was approved by Ehe At,torney General, plaint,if f s

amended their comprainE to withdraw Ehelr challenge to Ehe

reapportionment of the Louisiana House of Representatives. rn
addiEion, Plaintiffs anended their complaint Eo assert a cause of
action under Ehe 1982 amendments to s 2 of Ehe voting Rights Act
of 1965, 42 U.S.C. S 1973.

By order dated March 7, 1983, this court reaffirmed Judge

Collinsr invalidation of Act 697. we granted plaintiffsr motion
f or crass cert,if ication pursuant to Fed. R.civ. p. 23 (b) (2) ,
deslgnaEing a class oE persons consisting of all black registered
voters residing in the staEe of Louisiana. Finallyr w€

determined that 28 U.S.C. S 2284lal vesLed in this court
jurisdiction to enEerEain plaintiffs, slaEutory and



constlt,utlonal claius. Trial was held tron March 7 through March

I0, 1983. Declsion Has deferred pendlng brlefing and oral

argunent. Eaving considered Ehe evldence adduced at trial,

toget,her wlth the pleadlngs, br ief s I and oral argument of

counsel, the coutt enters Ehe following findlngs of Eact and

concluslons of law ln conEornity with Ped.R.Clv.P. 52(a).

Ftndlngs of Pact

Every ten years a reapportionment2 of existtng congresslonal

dlstrlcts ls cornpelled by Alttcle !, S 2 of t.he Untted SEates

Constit,ution and by Artlcle 3, S 1 of the Louislana Constitution

of t97{. In L972, Louislana's elght congresslonal distrlcts were

realigned based on data developed in the 1970 census. AE, Ehat

2. A technical dlstinction has been drawn between the terms
"apportlonnenE'and'reappOrtlonmentrr on Ehe One handr and
"dlitrictlng' and 'redistricting' on the other:

. . . aPPortionnen! and @inuolve the illocaEion [by Congress I of a
finite nunber of rePresentatlves among a flxed
nuuber of Pre-established areas. 9!E!E!$iIg
and redlstgictlag . . . refer to the processeE
by Effifrua-Tines separat,ing legislatlve
dlstricts are drawn [by Ehe stateEl.

Backstron, RobinE and EIIer, Issues in Gerryoandering:
Exploratory l'teasure of Part isan Gerrymander ing Applied
Uinnesotar- 62 ttinn.L.Rev. 1121, 112I n.I (1978). See Carstens

An
to
v.

LamE, 5{3 P.Supp. 58 (D.Col. 1982) (Ehree-J9dge court);
ffiiIf , Poli.Eiaif Redistr iceing and Geograph|c Theory at
(198I). To faciliEate discusslon, however, Ehese terms wiIl
ut il i zed int,erchangeablY.

R.
2

be



tlnc the ideal distrlct populatlon was 455'580 PersonE. While

the state renains entit,led to elght rePresentatlves followlng the

1980 cenEus, the ideal distrlct gnpulatlon haE lncreased to

325.4g7 p"r"on".3

The lssue before us princlpally lnvolves the New Orleans

netropolltan area, whlch encomPasses Ehe parlshes of Orleans t ,

Jefferson, St. Taramany, Plaquemines and SE. Bernard. The 1980

ccnsus f,lgures reveal pronounced denographtc changes in Ehls

arga.

3. The Eollowlng table set,s forth Ehe 1980 PoPutatlon,
Eercentage of black population and Percent of devlation ln the
elght L972 dist,rictsc

Louisiana .igE6"::l:ffit Dlstricts

L972 Plan

Distrlct PopulaEion Black t Deviation

r 523 r27L 36.5 0.42t
2 4611802 40.7 -12.L21
3 571rL3l ld.6 + 8.581
4 5081 593 31.9 3.221
5 5071 539 32.1 3.42t
6 571 ,L[o 29.6 + 9.83t
7 5431 235 20.1 + 3.38t
8 511,261 33.2 2.71t

Glven the near-absolute nathematical precision with which
congreEslonal dlstricts must be defined, Karcher v. DaqqeEE, 5I
U.S]i.W. 4853 (U.S.Sup.Ct., June 22; ffiicts
dellneaEed in the L972 plan fail to satisEy the equal
represent,ation standard of Article 1, ! 2._ _ -gg Pret,rial
iiipuiition at 4 ("Under the t98O censusr the L972 EFForEionment
plan for congressional dist,r icts lras signif icantly
malapport,ioned, as to all dlstrict,s excePt t,he First. o . .') . !



Durlng Ehe decade of the L970s, Orleans parish (eoterninous
rlth the city of New orleans) experlenced a raarked change and a

sltght decline ln populatlon.4 While overall populaEion

decllned, the black populatlon lncreased. The ciEy,/partsh nou

has a black populatton of 3081039 persons, which constitutes 55f
of. the total populatlon, {8.93t of the votlng age population, and
tl4-89t of the registered voterE. wit,h the exception of af,fluenE,

white nelghborhoods located ln t,he cityrs Garden DlEtrict and

Erench ouarter, along thc lakefron!, and near Tulane and Loyola
unlversiEies, the black populace is largely concentrated ln one

contiguous expanse of Ehe inner clty.
By contrast, the predonlnantly white, suburban parishes of

JefferEon and st. Tanraany, which flank the central clEy, have

undergone explosive popuration growth.5 According to the 19go

{.

Censqs

1980
1970
1960
1950
1940
1930

5.

Cens.us

1980
(footnoEe continued)

Orleans

Population

-

537,492
593, 471
627 t523
570,445
494,537
458 ,7 62

Je ffer son

Populat ion

-

454,592

Par ish

No. oE Ideal Dlstricts
l. 06
1. 30
1.54
I. 70

. 1.67
l. 75

Par ish

No. of ldeal DisEricts

0. 87



census, Jcflerson Parish, with a 13.91 black populaEion, a 13.z5t
black voting age popuratlon, and a lo.45t black voter
reglstraElon, ig nearly 87t the size of the ideal congresEional
distrtct. Unllke Orleans Parish, JeEferson parishrs black
popuratlon is diffused throughout the parlsh. prior to the
recent demographic shifts2 New orreanE had enough people to forn
Ehe doninant maJoriEy in two congressrional districts. Now only
1.06 times Ehe size of the ideal dlstrict, as defined by the lggo
censug, New Orleansr traditional donlnance of two congressional
dlstrlcts ls no longer supported by lts populatlon.

Under the Lg72 reaistficting plan, the First Congressionit
DisErict, presently represented by Robert Livingston, encompassed

st. Bernard, Plaquemines and sE. Tammany parlshes, together witrr
the lakefront,, eastern Mid-city, Algiers and New orleans east
sectionE of orleans Parish. An overlay of the I98O cenEus data
lo Ehat dist,rict, as configured under t,he LgTz planr E€flecEs a

36.5t black population and 28.it black voter regisEraEion. The

second congressional District, presently represenEed by Lindy
Boggs, coverE those Portions of Jefferson Parlsh Eo the south
(west bank) and immedlately norEh (East Bank) of the ttississippi
Riverr ES well as New Orleansr central business diEtrict, French

1970
I960
1950
I940
19 30

339 ,229
.208,769
103,873

50,427
40,032

0.7 4
0.5r
0. 31
0. 17
0.15

.*o- *:;,lA,l*L-*i$ * .-t*r- , fl r.i,'.- , 4.,.-:.inrEaLjaa.ls-, s5r-l *



Quarter, Uptown or Garden Distr ict and western l,tid-City, aII

situated within Ehe boundaries of Orleans Parish. Applicat,ion of

Ehe 1980 census data to the L972 boundaries of Ehe Second

Dist,r ict shows that 49 .7 t of Ehe population and 34t of the

registered voters are black. see exhibit oAn attached.

Leqislative Historv of Act 20

Early in 1981, members of t,he Louisiana House and Senate

research staffs were instructed to collate the l98O populat,ion

data compiled by the United States Bureau of the Census, and to

ascert,ain the extenE of malapporEionment,, if 6ny, under Ehe L972

p1an. With the assisEance of the Louisiana State University's

Division of Research Services, House and SenaEe research sEaffs

convert,ed the dat,a thus obEained from a census Eract to a

poliEical subdivision, or precincE, basis. These validaEed data,

reEerred to as Ehe 9{eber data, included populaeion and vot,er

regist,rat,ion Eigures, and provided Ehe exclusive data base f or

congressional redist,ricting in both houses.

Recognizing the need Eor realignmenE of the stat,e's

congressional dist,ricts, the legislature established Ehe

Louisiana House and Senate JoinE Congressional Reapportionment.

CommiEtee. In JuIy, dE E.he close of Ehe regular lrBI session,

each house appoint,ed leg is l.rtors Eo ad hoc congress ional

reapportionmenE subcommittees Eunct,ioning under Ehe jurisdicEion



of tro stanling corunittees, the SenaEe Connlttee on Senate and

Govcrnnental Af f alrs and the House Comralttee on llouse and

Governnental Affalrs. SenaEor Thonas E. lludson chalred Ehe

Senate Congresslonal Reapportionnent SubconmtEtee; Representative

John W. Scott chalred its House counterpart. There rrere four

blact< legislaEors on t,he joint connit,tee. No black legtslator
was appolnted to either subcommlttee.

State-wide public hearings solicitlng cltizen input were

conducted by the subconnittees Eron July through October 1981.

One of Ehe prlnclpal lssues debated ln the varlous fora concerned

the possibiliEy of fashioning a dlstrlct centered in Orleans

Parlsh, rhichr tts Ehe 1980 census data reflected, had a black

population oE 551. Representative Rlchard Turnley, in his

capacity aE Chairnan of the touisiana Legtslative Black Caucus,

testitled before the Joint reapportlonnent comnittee in support

of the propoEition Ehat Ehe sEaEers minority const,iEuency would

be best served by the structuring of an Orleans Parish-based

distrlct which rnaintained Ehe cohesiveness of the meEropolitan

black comnunity. Mtnutes of several public hearings held in
August 1981 reveal that other leglslatorsi boEh whlEe and black,

shared this view.6 Other considerations identified as important

6. Contending that oral or written sEatements utEered in Ehe
iontext of public hearings before the joint committee and
subcomnlttees are hearsay, defendanEs conEest the admission of
transcrlpts, or mlnutes, of Ehese meetings. we disagree, Einding
(foocnote continued)

l0



to thc rcapportionnent ProcGEE wera conpactncss, contlgulty,

respect for parlsh llnesr tnd a recognitlon of ethnlc, culEural

and geographic differences.

Based on the trecoillendatlons of legtslatlve counselr the

Eouse subconnlttee promulgated several rules for the destgning of

congressional dlstrlcts.T Enbodied ln theEe rules were t,he

that Ehe transcrlpts'fall wlthln the publle record exception of
Ehe hearsay'rule. Fed.R.Evld. 803(8). Under RuIe 803(8) (A), the
followlng are not excluda,ble as hearsay, even though the
declarant ls available as a wltness: 

:

Records, rePortsr' statenents, or data
conpllat,ions, tn any forn, of publlc offlces
or agencies, settlng torth (A) the actlvttles
of the offlce or agency.

Plalntlffst Exhibits 1 through 9, tnclusive, are records of
regularly-conducted sesslons of a Jolnt connlttee and
subconni,ttees of the Loulslana Legislature andr aE such, are
adnlssi.ble as evidence of the facts to whlch they relate without
foundatlonal testinony. J. Welngteln and M. Berger, 4
t{einsteln's Evldence I 803191 t01l (1981). There is no challenge

of these records. we have no! considerid
statenents presentlng double hearsay problens. Wl th t,hls
exception, written and oral statenents contained in the minutes
of the vartous public hearings are admisstble as evidence of t,he
matterg asserted.

7. In presentlng their proposed redlEtrictlng guidelines Eo the
Eouse subconnittec at Ehe July 23, 1981 public neeting in Baton
Rouge, .counsel advlsed menbers that racial consideraEions must
plai a key role ln reapportlonncntr and that nlnority voting
strength could not be dissLpated Ehrough the Eragruentation of
slgniflcant nlnorlty population concentratlons. MlnuEes of July
23, 1981 Public Hearlng Before the llouse and GovernnenEal Affairs
Subcomnit,tec, pp. 159-174. Davld Poynter r Clerk of the llouse
Representatives, warned that:

[olne concern of the courts ts the existence
of a predooinant,ly bl.ack nelghborhood or area
with a sufficlent amount of population to

(footnote contlnued)
I1



prtnclples of strict compliance with the 'on"-prerson, one-voter

axlon, alloring for a maximun devl,atlon of, only .5t, a1rd t,he

unaccePCabiliEy of any proposal shown to have either the goal oE

the effect of dtluting nlnorlty votlng strength. Identical

- criterla rere endorsed by the Senate subcornnlttee. Drlrlng the

flrst Joint rneeting on August 21, 1981, these quidellnes were

f ornally adopt,ed. S

Justtfy a diEtrict where tt becones apparant,' Isicl thaE the effect ras to carve up that
group of people in such a way as to put them i
ln two or Ehree separate districts and make lt
lnposslble to elect a black representatlve. .That probably without any questlon ls
inperraiss lble.

}!. at 190.

8. RuIe I of the Jolnt Legislative CornmiEtee on Reapportionment
Proposed Rules for Congressional ReapporElonmentr is approved by
the Joint ComniEt,ee on August 21, 1981, stlpulates that:

1. EquallEy of population of
congressional distr icts insofar as ispracticable is the goal of congresslonal
reappor tionnent.

I.A. DeviaEions from Ehe 'idealdistrictr population should be justitiable
elther as a result of the linitations of
census geography, or as a result of t,he
promotion of a constttutionally acceptable
ratlonal state policy.

1.8. In order to meet, constitutional
guidelines for congressional dtstrlctsr Eroy' plan, or proposed amendnent Ehereto should
conform to a relative deviation range of one(1t) percentum, or a relative deviaEion of' +/- I,/2 of one (.51) percentum.

(footnoee conEinued)

L2



Several,. grouplr subnit,ted pro5rcsals to Ehe Joint conniEtee or

tha tro subconnittecs, atrong then Governor Dave Treen and the

Loul,slana congresslonal delegation.9 None of the Governor I g

Ehree proposed plans, denornlnated Treen A, B, and C, contemplated

a naJorlty black dlEtrlct.l0 During this perlod the Governor

Accordlng Eo Rule IV, aLso approved by the Joint CommitEee:

1. The dllutlon of ninorltY votlng
strength ls contrary to public poliey. The
rtght of neanlngtul polltical participation of
nlnority citizenE is recognized. AccordlnglY,
any proposed apportlonnent plan, or anendnent :

thereEo, denostratpd lsicl to have the
obJective or consequence of dtluting Ehe
voting strength of ninorlty clEizens is
unacceptableo '

9. On bchalf of all eight of [oulsianars congressiona.l
representatives, Congressnan Wtllian Tauzln presented a proposed
rcapEortlonnent plan to Ehe Jolnt connlttee at 1t,s August 2L
organlzatlonal meeting. Several districts within Ehis plan
exceeded the populaElon deviation ceiling Prescribed by the
connitleers reapEortlonment rules. Albcit invited Eo submiE a
plan whlch rectified Ehts deflclency, the delegatlon as a whole
dld not do so.

10. Black and whlte population percentages in the eight
congresstonal distrlcts created by Treen Plans A Ehrough C are:

olEtr lct
1
2
3
4
5
6
7
I

(footnote continued)

.I WEITE

Proposal A Proposal B

65.8 55.8
54., 5 54. 5
83.5 84.0
57.1 i 66.7
67.5 1 67.5
70. I 70. I
77 .7 76.7
67 .6 58.5

Proposal C

55.8
54. 6
83.5
57. r
67.5
70.I
7I.0
74. 3

L3



publlcly €xPraslred his opposltlon to the concept of a majorit,y

black dlstrlct, statlng that dlstrlctlng schenes notlvated by

raclal conslderatlons, however benlgn, smacked of ractsn, and tn

Gulded by the joint corunitEeers reaPPortlonment crlterla and

the vlecs artlculated at, t,he publlc hearings held throughout the

surmer and fall of 1981, the Senate research staff prepared nore

than 50 plans. the staff was dlrected to fornulate a Plan

contalning an Orleans Parish-domlnated dlstrlct. Such a dlstrict
would necessarlly have a black maJority population. t'tichaei

Baer, Secretary of the Senate and Ehe official charged with

supervising leglslatlve drafting procedures, ensured compliance

wlth Euch well-established reaPportionment guidellnes as

oo€-p€ESorl1 one-vote' conPactness, resPect for the integrity of

geographic boundarles, preservation of cornmunities of inEerest,

and non-reErogresslon. ParEisan political concerns also figured

proninently ln the conf ection of the var ious p1ans, among t,hem

Dlstr lct
I
2
3
{
)
6
7
I

t BI"ACK

Proposal A

32. 0
43. 5
14. 3
31. 6
31.9' 28.8
21. 5
31.8

Prooosal B

-

32.0
43.5
13. 8
32. 0
3r. 9
28. 8
22.7
30. 6

Prooosal C

-

32. 0
43. 5
14. 3
31. 6
31. 9
28.8
29.3
24.9

I4



thc deslres of Jefferson Parish polltical leaders, lncluding lax

Assessor Lasrencq C. Chehardy, f,or the creatlon of a dlsErict
conlrcsed prinarily ol that parish.

lo achleve these goals, the Senate Etafl developed a plan

whlchr 6s the result-of, the sponsorshlp of Senator Sanuel B.

Nunez, JE. of St. Bernard Parish, would subseguently be reEerred

to as the 'Nunez Plan.r See Exhtbit 'B' attached. As drafted,

thls plan envlsaged one black and seven white population maJorlty

distrlcts. Nunezrs prop,osed Elrst Congressional District, 72t of

which rras nade up of Jeftersen Parlsh, conblned t,hat area of the

parish lying west of the Mississlppl River wlth Orleans Parish'd

t{ard 15, and thq parlshes of Plaquenines and St. Bernard. the

proposed Second Congressional District consisted almost entlrely
oE Orleans Parish (94.9t), together rlth 25 contiguous, precincts

drarn fron east, Jefferson Parish. St. Tannany was resEored to

the SLxth Congresslonal DlsErict, f roru which it, had been excised

during the 1960s. By allocaE,ing separaEe districts to majoriEy

black, urban Orleans Parish and virtually all-whlte restdential

JeEferson Parish, Nunez Eook lnEo account the dtvergent,,

frequently antlEhetical, concerns oE clty and suburban dwellers,

aE well as parish Iines and Ehe natural geographic barrier

erected by t,he !{isslssippi River. Utillzing 1980 census f igures,

Nunezrs Second District woul.d be 5{t black in population and 43t

black in voter registration. The First DisErict would have a

t5



black populatlon of 17.91 and a black voter registration of

12t. 11

On the the Eouse Eide, the legtslative staff devtsed a plan

whlch largely adhered to parlsh llnes and left lntact the

concentratlon of blacks residing ln Orleans Parish. Naned for

lts sponsor, Representat,lve Scott, thiE Plan envisioned a 50.21

black population majority and 44i black reglstered voEer

Snpu1ation ln the Second Congresslonal Dlstrict, and a 22.51

black population and 17t black regl,slered voter trnpulation ln Ehe
:

First Dlstrict.
Governor treen sumnoned the leglslature tnto erlraordlnarf

sesslon on Novenber 2t 1981 for the purposer l.!.!,gE 3-LE, of

Ieglslatlve and congressional reaPportlonnent. Varlous bllls to

reapportion the elght congresslonal dlstricts were fi,led on the

first day of the segsion, among then the Nunez Plan, lntroduced

11. The populatlon deviationE and percentages of black
population and voter regisEratlon Eor each of the eight
congressional dtstrlcts forrued by the Nunez PIan are:

g.L$.

I
2
3
{
5
5
7
I

ToEal Pop.

-

326,666
525 ,135
525 r 581
323 r067
525,655
525.074
523 1847
52{ r 953

I Deviatlon

0.22
0.07

. 7.02
.l .08
0.04
0. 08
0. 31

b 0.Il

I Black Pop. t ti:::rl:n'

17.9
5tl. 0
21. 3
31.6
31. r
22.8
20.0
35. 9

13. 0
43. 5
18. 8
22.3
24.5
17.5
r6. 8
30. 3

t5



tn the Scnalc by Scnators Huncz and Tlernann as S.B. 5, and the

Scott Plan, tntroduced ln the Eouse by Representatlvc Scott aE

E.B. 2. Of all bllls rGfcrred to the standing Senate and llouse

comnlttees On govQrnnental aftalrs, only S.8.5 and 8.B.2

riceived favorable corunlttee actlon.

lilembers of the Louislana Black Caucus united wiEh the

Jefferson Parish forCesr Led by Nunez and Chehardy, in urging

passage o! the Nunez PIan. that Nunez and Chehardy were

principally concerned with establlshlng a dlstrict controlled !y
predoninantly whl'te Jefterson PariEh waa of little lnport Eo

black legislators, who advocated the planrs concoroitant fornation

o! a najortty bLack diEtrlct ln Orleans Parish. On Novenber 4,

I98I1 S.B. 5 was reported out of, conniEtee with mlnor subsLantive

anendments and onto the Senate tloor, whetre tt was passed by a

eole oG 31 Eo 6. A nove to amend S.B. 5 to substit,ute Governor

Treenrs Plan A was defeated, and S.B. 5 was sent to the Eouse for

further actlon.

E.B. 2 was sinultaneously reported ouE of EouEe commit,tee

and placed on the Eouse calendar on Novenber 4, 1981, along with

an aaenduent to substltute Governor Treenrg Plan B for the Scott

plan. the Eouse ComniE,tee on llouse and Governmental Affairs

received S.B. 5 on Novenber 5, 1981, but declined to anend E.B. 2

Eo adopt the SenaEe biIl. RePresentative Charles Bruneau, a

nerabbr of the cornnittbe, EesEified that his vote in commiEEee

t7



agalnst S.8..5 resulted from thc plan's abandonment of urban New

Orlcanss 1JQ-tear tradltlon of electing two congressnen.

In proceedings before the fuII Eouse on 8r19"y, Novenbqr 6,

the representatives decllned to araend E.B, 2 to substltute Treen

Plan B. Despite the Comnlttee on Eouse and GovernmenEal Affairst
prevlous reJectlon of S.B. 3, the Eouse then voted 61 to 38 to
adopt the Nunez Plan. by engraftlng iE, on E.B. 2 and dlspatched

t,he newly-amended B.B. 2 to the Senate. Sone of Ehe 38 negative

votes stemmed fron the perceptlon that, New Orleans would "lose."

conErol of a seat under the Nunez PLan.l2 Also clted was the

antagonisn of a number of leglslators toward the drawing of ;
dist,rlct whose racial compositlon would faclllEate the election

of a black congressman. Representative Mary Landrieu testifiedi
lhere were people that supp,orted Ehat plan
lNunez Planl, like myself, because we wanted
to be aggressive and pushlng for a black
district or a district where ninority votlng
strength would be encouraged. And so there
rdere people on the opposite side who didnr t
feel they wanted to have a district that would
be able to elect a black rePresentative.

Record, Vol. III at 49.

12. Regardless of Ehe sincertty with whlch lt is held, the
Ieglslatorsr conviction is no longer valid. The population of
Orleans Parish, the regionrs nodal center, has historlcally been
large enough to control two congressional dlsEricts. Given Ehe
Ioss of approximaEely 36,000 people over the last decade, and t,he
concomitant increase i.n Ehe ideal distrlct population of
approxinat,ely 70,000 people, OEleans Parishrs populatlon is now
only I.05 times larger Ehan t,he ideal disCrict required by t,he
1980 census daEa. E p. 7, -ry1]gl.

L8



Both houses of the Louislana Legislature had thus approved

reapportlonnent bills incorporaEing the Nunez Plan in lt,s

enEireCy, although the llouse 8111 inadvertently left out one

precinct. Upon learning of Ehe action of the legislature,

Governor treen announced hls intention to veto the Nunez Plan if

tlnally passed.13

Proponents of the Nunez Plan were keenly at are of the

implicatlons of the Governorrs promised. veto. Louislanars chief

erecutlve has considerable Eower and inEluence, both de ;igg and

de facto. Testlnony reflect,s EhaE the Louislana Legislat,ure has

never overridden a gubernatorial veto. A sufflclent number of

legislators changed thetr posit,ion ln res1onse to t,he Ehreatened

veto to assure the denise oE t,he Nunez Plan.

Because oE his decisive role in Ehe defeat of Ehe Nunez PIan

after iE had received the overwhefuuing suPport of both houses of

the legislature, Governor Treen'E Stated reasons EOr acting are

relevant. At, t,riaI, the Governor outlined Ehe considerations

13. According to Article 3, SS L7 and 18 of Ehe Louisiana
ConEtlt,utlon of 1974, a biII has Ehe Eorce and effect oE law only
if passed by both houses of the legislature and delivered Eo Ehe
govirnor wlthln three days of Passage wiEh Ehe signatures of Ehe
presiding of f icerE, and Ehe governor elther sign_s iE or fails Eo
lign or veto it wit,hin t,en days after delivery if t,he legislature
is- in session, or within 20 days lf adjourned. llence Ehe
legislature has no auEhoriEy'to create congressional dist,ricts
independently of the part,icipaeion of Ehe Governor as required by
Ehe staEe const,itution with respect to Ehe enactment of lalrs. "
Smilev v. Holm, 285 U.S. 355, 373 (1932).

r9



which pronpE-ed his objectton to Ehe Nunez PIan. Ile described as

unfair Ehe submergence of St,. Bernard and Plaquemines Parishes

under Jefferson Parish, albeit acknowledging that Ehe poputations

of Ehese - two coast,al par ishes would constitute only a minor

portion of any district. The Governor also wished Eo naintain

existing dlstrict configurations where possible, proEect Ehe

incumbent, Livingston, and retain Orleans! Eraditional inf,luence

in the Ee1ectlon of two representativeE.

Another concern of Ehe Governor related to racial
polarization, which he perce,ived to be an lnevitable consequence

of Ehe deliberaLe sculptin{ gf districts along racial lines. Ea

denounced any legislative schene which triCentlonally drew

boundary lines so as to consolidate a najorlt,y of one race within
a single distrlct. He specifically , rejected Ehe Nunez Plan,

which would creaEe a 55t black distri,ct, for Ehis reason. In t,he

sEaEeIs S 5 subnission to Ehe JusEice Department, prepared by

counsel and approved by the Governor, this plan was characterized

as an atEenrpt by Ehe Louisiana Legislature to enact into law the

discredited idea of proportional representation

These concerns were rest,ricted to Ehe aggregation of blacks

within one district; t,he coalescence of whiEes was not regarded

as ominous so long as Congressman Livingstonts chances for

re-election were maxlmized. An Orleans-based disErict with a 55t

black population 
.was 

not accept,able Uo t,he Governor. As laEer

20



noted, an Orlcans-based distrlct with a 55f whit,e population

encounEered no obJectlon.

Thc court finds that the Governor's opposiLion to the Nunez

Plan vras prcdicated ln significant, part on its dellneation of a

najority black dlstrict centered in Orleans Parish.

On the norning of Nouenber 9, 1981, the Governor announced

hls Reconclliatlon Plan, cognonened Treen Plan X. Substantlally
sinllar to the alternatlves prevlously reJected by the

leglslat,ure, Plan X provided for elght majority whlte

dlEtricts.I4 That, afternoon Ehe Eouse reversed lts posiEion on

the Nunez Plan and, by a vote of 79 to 22, substituted Ehe

Reconclllatlon PIan as the text of, S.B. 5. As thus anended, S.B.

5 was returned to the Senate and was there soundly rejecEed,

Ehrowing the natter into conference comnlttee

AppoinEment of a conference coranittee rdas deferred until a

compr.omise acceptable to the Governor could be fashioned. Senate

14. Under Ireen Plan X, total populat,ion and black
populatlon percentages for each oE Ehe eight disEri.cts

District Total PopulaEion t White

325.669
525, gg5
526,734
525,067
525,658
524,738
525,I86
525,025

and white
are 3

t Black

28. 87' 44.75
, 15.53

31.5r
31. l6
25. 90
20. 09
37.47

L
2
3
4
5
6
7
8

68. 85
53. 36
82.30
67.05
68. 25
73.00
79.L7
51. 96

2L



president ltlghael O'Keefe of New Orleans summoned "interested"
parties to a private meeting in the Senate Computer Room,

situated in the sub-basement of the State Capitol. Present at

varying tlmes were SenaEors Nunez, O'Keefe and "Eank' Lauricella

o! Jefferson Parishr Assessor Chehardy, Jefferson. Parish

Representative John AIario, Louisiana A.F.L.-C.I.O. Pretident

Vlctor BusEie, Congressman GiIlis Long, congressional aides to

BoggE, Long and Tauzin, and nembers of the Senate adrnlnistrative

staff. Black legislators were not, invlted, those responslble Eo!

calling Ehe gathering having'decided t,hat the goal of crafting a

district with a high ninority profile would have Eo be abandoned.

A plethora of factors was consldered at the meeting. Nunez

and Chehardy vigorously urged a dlstrict dominated by Jefferson

Parlsh. treen Plan X, which spllt Ehe parish three rays, was

discarded at the outset of discusslons. Also stressed was t,he

necessity of fulfilllng the Governorts objective of guaranteeing

the re-election of Congressman Livingst,on by adding enough white

suburban voters to t,he First DisEr ict Eo of f set the 'impact of

inner cit,y blacks votesr ES well as the desire of several

congressnen and state representatlves to solidify incumbent

Boggsr electoral base by drawing a dist,rict as Eavorable as

possible for her. An obvious consideration was the concentration

of blacks in New Orleans and the racial comPosit,ion of Ehe Second

Dist,iict. Albeit resolved to averE any reErogression of Ehe

z2



approxinately 40t black population in this dist,r lct, as

configured under Ehe L972 Plan, the goal oE fashioning a dlstrlct
whlch was at least 55t Jefferson Parish nillEated against raising

substanttally the black population'percentage of that diEErlct.

Eence the'partlcipants deEermined that the minorityrs interest in

obtaining a predominantly black disErict would have to be

sacrlficed ln order to satisfy both the Governor and t,he

Jefferson Parlsh group. As Chehardy candldty explalned:

. . . the feeling ln E,he raeetlng was that, the
one grouP, the one gont,lngency group that was
not going tg come out of Ehe session Eatisfied
ras golng to be the blacks. The'reason Eor
that was that rith all of the comPeting
lnt,erests . . . there was probably golng to be

. vtrtually no way to satisfy the black members
of the Legislat,ure . . . lngofar as creating a
majoriEy black dlstrlct [was
concernedl. . . . They [nlnorlty legislatorsl
dldn't have enough votes.

Record, VoI. III at, 28.

Working laEe into Ehe evening, the sub-basement conferees

ult,lmaEely arrived at that synEhesis of conflicting interesEs

incorporated into Act 20. See Exhibtt 'e' attached. Jefferson

parlsh constitutes approximately 55t of the Second Dlstrict under

the Actt Portions of Orleans Parish nake uP Ehe remainder. SE.

tannany, bt. Bernard and Plaquemines parishes, Eogether wiEh t,he

Lakefronti New Orleans east, and Algiers sections oE Orleans
t

Parish, are placed wiE,hin Ehe First DisErict. The jagged line

dividing the Pirst and Second Districts commences in Ehe east
t

23



bclos thi we.st bank of the Uisstssippl River, casting !{ard 15 and

Plaguemines Par ish into Dist,r lct One. Traversing Ehe

Misslss.lppi, the line runs norEh for approxlnately 15 blocks and

Juts sharply to the east to seeer Ehe southern extremitles oE

Wards 8 and 9, gathering predominantly white nelghborhoods within

Dlstrict One. Veering north through Ehe midsection of Ward g,

then west t,hrough Wards 9 , 7 , and. 8, the line sweeps the

densely-Slopulated black comnunity oE c.entral New Orleans into

District .lwor and the adjoining whlte neighborhoods which' border

Lake Ponchartraln into District One. Moving south and west, Ehe

Iine fractures Wards 5, 4r 3, and 2'Eo separate whlte and black

areas lnto Districts One and Two, respectively. Ward 14, which

[s 90t white, is aligned wlthin DisErict One. Tracing a

northwesterly path along the east bank of Ehe litississippi, Ehe

Ilne extends north to dissect a discret,e black concentrat,ion on

Carrolton, joining one part with an expanse of titrite population

in Jefferson Parish. The EoEal population, percent deviation

from the ideal populaEion, percenE black populaEion and percenE

black registered voters for each disErict created by Act 20 are

as follows3

glg!..

I
2
3

Total Pop.

-

525,319
525,605
526,364

t Deviation

0.03
0. 2l
0.17

24

!-.erac'!-!9P..
29. 5
44. 5
I5. 2

t Etack Reg.
t'oters

2L.5
38.7

' L2.7



{
5
6
7
I

325,067
525r 669
521r37 4
525 r 186
525r 389

- 0.08
0. 03

- 0.21
- 0.06
- 0.02

31.6
31. 2
25.1.
20. I
38 ;3

22.3
24.6
18. I
16.9
21.9

Dlstrlct boundarles ftxed by Act 20 are clearly raclal in

character, selectlvely segregatlng rhtte and black reslderits of

New Orleans lnto the raajoriEy white Plrst District and Ehe nore

heterogeneous Second District. gfhen traced on a raap of the clty,
that Eortion of the Second Dlstrlct rhich cuts lnto Orleans

Parlsh resenbles the head of a duck, with the bill sPllntering

Ward 9. a contlguous black corununity of apProximately 94,0-00

people. Ward 8, which also contains a hlgh concentrat,ion of

blacks, was sliced E,hree ways, with Ehe extrene northern
I

(lakef ront) and sout,hern segmenEs asslgned to Distr ict One and

Ehe raidsection to DisLrict Tto. Alt,hough other black wirds are

fragnented, the integrity of predomlnanEly shite wards is

assured. Of Ehe 31 metroEolitan precincts with a black

population oE 95t or hlgher, most o€ which are situaEed precisely

on the duck bilI, L7 were placed in Dist,r ict One and 14 were

placed in olstrict Two. Act 20ts raclal boundary llne separates

cohestve black netghborhoods in the inner clty which share connon

poliBical and socio-econonic inEerests premlsed on income,

trans5ortat,ion, education and housing. Sinilar disruption of

white neighborhoods is minimal.

Senate Secretary Baer, who with Senate staff member Nancy

25



Barr lngerya: charged with producing a Plan reconciling the

dlsparate lnt,erests of the sub-basenent conferees, candidly

testilled that neutral apportionnent guidelines hereEofore

applied ln draft,tng the Nunez Plan were Jettlsoned ln Ehe effort

to attaln a comPronlse.l5 Distrtcts One and Trrc of Act 20, wlth

Eheir disEorted shapes and irregular, indented perlneters, are

not, geograPhlcally compact. These unugual conflguratlons aEe not

necessary to ensure adherence to the one-Person, one-vote

rubric. In contrast Eo the Nunez Plan, Act 20 devlateE fron the
:

natural geograPhic barrier foimed by the MisslssiPPi.River, whlch

separates an enclave of inner clt'y blacks fron whttes reslding in

suburban areas.

New Orleansr tradit,ional polit,lcat sub-unlt, the *ardr16 has

15. It is important to emphasize that our coEParlson of Ehe

"ei""t" 
of t,he Nunez Plan ana Act 20 intlnates no view of the

E;il;;- ai- ghJ f inal expression of state rediEtrlcting poliey.
Both the CovernJi and ttie legi.slat,ure 1:e int,egra1 components. of
iti"rJeigili;';.oc""si tnus any plan -th.at does'not survive t'his
iio"""i - -to 

become law must be-_ regardqd as 'p-rof f ered current
;;ifi; iriiJil--ir'"ugh 

-. 
e',tit,te.d. 11 -,tlou1ltf:l- -:?'::i*'"!i:::;il;t uI"-ieirnea a ctear articula!io1 be established 3t'aEe

r-lro-drorarlrr Mlrrraqlnl'r Sl.atc Senate u- BeenS, 406nate vloars. g@ili;.i',pzz ,iiiii
grier, 540 F.SuPP. 1200

goard, 336 F.SuPP. 839

(footnote continued)
26

L 'i1,""' ilH3in" i;::
;ffi;;ir"i'i[lt Ehe earinei a bill proeresses in the lesisIaEure,
i;;-il;;- prouaiivJ ir is of a discrere srare goligl. _ s=Ii-.--- .t rr.iffi;r ,oi'=1,0,"i^T:":iii
i-ri;E- 

-rhe airal Lit-i"1e- oi rhe Liruisl,ana Civ ir code decrares:
;ia; is a solemn expression of Legislative will.'



been selectlvely fragnented by. Act 20. Black population

16. Judge John ltinor lflsdon
Etgnificancc of the rard in'
(5tb Clr. 197{):

described Ehe or igln and political
499 F.2d 893

A ward in New Orleans tradiElonally neans
as nuch Eo ltE resldents as a parish or county
doeE to lts resldents. The CiEy has been
dlvlded lnto wards since 1805, and nost of the
ward boundaries are far rocrre ancient than any
question of Negro voting strength.

Itr
The direct anceEEor of the Present ward

structure was adopEed ln 1852. Ward
boundaries have been chahged since then only
by Ehe addiEion of ner wards Eo acconmodaEe
areaE newly incorporated inEo the clty, except
lor a ninor change ln 1878 to correct an
anonaly and a major change tn 1880 when a
substantlal area was taken fron the sixth rard
and added to Ehe fourth and fifth. The change
of 1880. was the last change In Ehe ward
boundaries Eo date. The llome Rule Charter of
the City Eor 1954 has the same ward boundaries
as lts predecesEor, the charter of 1912.

The flrst Eunction of Ehe sards was Eo
serve as the distr icts from which were elected
the aldernen who Eorrned Ehe governing council
oE the CtEy. Slnce then, Ehey have been used
as the basic units of apportionnent for
repEesentaEives in the United StaEes Congress,
for presidential electors, f,or state senators
and representat,ives, foc judges and lesser
oEftclals of Ehe city courts, Eor city
councilmenr" for tax asEessors, and Eor Ehe
nenbers of lEhe numerous central or regional
corunit,tees thlch form the statuEory structure
of Ehe poLiLical parties. The wards have. structured working levels o€ political
organizations. Part,ies and factions have
generally.been organized along ward lines with

(footnote contin:ed)
27



concentraEions rithin most of the nine Orleans Parish wards split,
by the Act have been disrupted, rhereas white concenErations

renain essentially lnvtolate. Not a single ward is dlvided under

the Nunez Plan.

By disregardlng parish lines and unlting Srcpulated segnents

of Orleans and Jefferson parishes wiEh nutually exclusive, often

dtscordant needs and concernE, Act 20 effectively lgnores both

hlstoric boundarles and obvious cornnunltles of lnterest. Since

Jefferson Parlsh conprlses the naJorlty of Act 20rs First
Dlstrict, the lnterests of the Bore conservatlve, suburban white

populace have effectively ecllpsed those of the less

conservatlve, urban blacks who make up only 17.9t of Ehe

districtr s populaBion.

. Once completed, the new plan was submitted to Governor treen

for review. After t,he Governor accepted Ehe plan on November 11,

1981, Senators lludson, Nunez and OrKeefe, and RepresenEaLives

rard leaders as major politlcal porders.

t{oreover, an" rards are real and
important parts of Ehe cityts life and
culture. Resldents of Ehe City are likely to
speak oE thenselves as living in Ehe twelfth
l{ardr or the Seventhr oE the Eourteenthr say
ln contexts quite apart fron politics; indeedr-
ln t,he sane iray Ehat one would say Ehat he
lived in lttar igny or in the Ir ish Channel or
the lower Garden District,.

Ig. at 904-05 (footnotes omiEt,ed). Evidence adduced
conflrmed Judge Wisdomrs assessment, of Ehe New Orleans
gcene.

I

at Er ial
poli t,ical
I

28



Scott, Brunca.u and Alarlo were appolnted to a fornal conference

connlllec. None of, these indlvlduals ls black.

A publlc meet,lng was convened by the cornnlttee for the

purEose of preparlng a conference rep,ort on proposed Act 20.

Representalives Dlana BaJoic, John Jackson, Alphonse Jackson and

Eenry Braden, nembers of the Leglslative Black Caucus, votced

slrenuous obJectlon to the compronlse plan, all arguing that a

naJortty black disE,rlct enconpasslng Orleans Parlsh was necessary

to enable ninorlty voters to elect a rePresentative of their.'

choice. The testinony of Representatlve Turnley and New Orleans

Uayor Ernest N. lrlorlal, both .blackr lllustrates Ehat the

consensus of optnion among t,he staters mlnorlty leaders was that

Act .ZO was inirnical to the interests o! Louislana I s black

constituency. Eollowing an abortlve attenpt, by Representative

Scott, Eo amend S.8.5 Eo expand the Second Dlstrictrs black

population to 50.2tr t,he compronise provlslon tfaE adopted by Ehe

comnittee by a vote of 4 to 2, with Represent,atives Scott and

Alario dlsslntlng.
on November L2, 198I, t,he llouse and Senate adOpted the

conference comnittee Eeport. Governor Treen slgned Ehis bill

into law on November 19, 1981, and lt became Act 20 of Ehe First

ExtraordinarY Session of 1981

29



Votinq Patterns and Polarization

There i" a substantlal degree of raclal polarizatlon

exhlbited in Ehe voting Patterns of, Orleans Parish. BY lnserting

thc 1980 census data 1n a computerizedr step-p1"" regression

progran, Dr. Gordon Eenderson, plalntlffsr expertr. enplrically

neasured the extent, of racial bloc voting ln 39 Orleans Parish

clections between the years 1976-82. Thts program first employed

a regiesslon equation to. predict the numbcr of votes cast for a

btack candidate by reglsEered black voters ln a speclflc.

preclnct. Another statisLical tool , a Pearson correlation

coefficlent, was Ehen used to exantne all conceivable

relaEionshlBs between a single dependent variable, votes in favor

of a black candidate, and several lndependent variables, inEer

g!!g, t,he number of black regisEered voterg and tot,al population

per preclncE, ln order to isolaEe t,he one variable which most

accurat,ely explained t hy those votes lrere received. The

coefflcients derived by plaintiffsr expert demonsEraEe an almost

perEect.correlation between a candidaters race and that of the

voters who manifested a preEerence for his or her candidacy at

the ballot box.17

17. For each of the 39 elections studied, t,he correlaEion
coefficlentr or statlseical meaEure of the strength oE t,he
relationship between the votes received by black candldateE and
Ehe number of black reglstered voters, white registered voters or
white pcrsons, coupled wit,h Ehe number of Precincts from which
data were obtained, were listed by Dr. Eenderson aE follows:
(footnote continued)



Plaintlffsr quanEltative showing of polarlzation was

Date Ofllee

8/3/79 Judge, Dlstrlct B
4/7/79 Judge, DisLrtct E
L0/27/79 Judge, Section E

10/27/79 Judge, Sectlon C

L2/8/79 SEate Senate, 6th Dist.
L2/8/79 Judge, Sectlon E
4/l/8L Councllman iDi
5/L6/8L Councilnan 'D'r
L0/L7/8L Judge, Sectlon C

L0/L/17 uayor
L0/L/77 Councilman-at-Large
LO/L/77 Councilman '8"
L0/L/77 Clerk, Crim. Dist. Ct.
4/30/77 Assessor, 4t,h Dist.
4/5/80 B.E.S.E.1 2nd DlEt.
5/17/8O B.E.S.E., 2nd Dist.
9/13/80 School Board
9/L3/80 Judge, Section A
8/4/78 State Senate, 4th Dlst.
9/L6/78 MagisErate Judge
9/L6/78 Judge, Section B
LL/l/78 School Board
8/L4/76 Judge, Section C
8/14/76 School Board
LO/2/76 Councilman-at-Large
L0/2/76 CounciLnan 'B'
LL/2/76 School Board
LL/4/80 School Board
4/LnA State SenaEe, 4t,h Dist,.
LL/4/80 Judge, Sectlon A

B1ack
Req. VoEers

-

.87

.89

.9tl

.65

.9{

.84

.92

.90

.87

.95

.93

.80

.67

.94

.51

.62

.89

.91

.82

.90

.90

.90

.90

.88

.87

.88

.80

.56

.95

.97

Whlte
&P..

-.40
-. {4
-.41'-.04
-.73
- .22
-. 69
-.68
-. {0
-.45
-.42
-.45

.00
'.72
-.17
-.31
-.31
-.45
-.63
-.39
-.46
-. 40
-.51
-. 50
-.44
-. 5O

-.27
.10

-.7 4

-. 39

Whlte
Req. VoEers

-

-.28
-.32j. 54'
-.54
-. )O
-.48
-'14

No. of
lsE.
426
426
426
392

61
426
86
86

392
426
426 r

78
426

31
r94
194
426
392

60
426
426
426
426
426
426

78
426
426
50

392

2/6/82' ClviI Sheriff
1/20/e!1 Civil Sheriff
2/6/82 1 MaYor
3/20/82 Mayor
2/6/92 Judge, Section I
3/20/82 Judge, Section I
2/6t'82 Councilman-at-Large
(footnqte continued)

.83

.90

.97

.98

.92

.96

.80

428
428
428
428
428
428
428

31



buttresscd -Uf the testirnony ' of tralned Political observers.

Uayor Morlal, now in his second term, has been actively lnvolved

ln pollt,lcs at the state and local levels slnce hls election Eo

the lcalslature ln 1967. Be has been elected Eo posltlons in all
Ehree branches of government. !,layor Morlal opined thaE raclal
bloc voting ls prevalent, ln Orleans Parish. On t,he basis of' a

study of the literaEure relatlve to 18 electlons conduct,ed in

Orleans Parlsh from 1950 to 1976, DE. Rlchard Engstrom, a

prolessor of political science at the Unlversity of New Or1eans,

Eound substantial evldence 6f votlng along raclal llnes. With

ref erence to Ehe L977 nayoral conteEC in which I'tayor Mor ial
prevalled, Dr. Engstrom opined that the New Orleans metropolltan

2/6/82 Councilnan "8"2/6/82 Councilnan "D'
.86
.74

-.45
-.35

90
9t

According to Dr. llenderson, Ehe range of a Pearson
correlation coefEicient, also known as a Pearsonian product
noment eorrelation coefficienE, is Erom -1.O through 0 to +1.0.
CoeEflcientE of -1.0 and +1.0 indicaEe a perEect relationship
between tro variables. In other words, a value of -1.0 or +1.0
enables a sEatistician to perfectly predict one variable iE he or
she knows the value of the other: Coeftlcients of +.5 and higher
are deened stat,tstlcally signiflcant. Values of .7-or higher are
extrenely rare, and attest to a strong correlatton between Ewo
varlables. A coefficlent wiEh a value at or near 0, on the other
hand, cvldences a weak relat,ionship. See qenerally, D. Baldus
and J. Cole, Statlstlcal Proof of DiscrininaETon-F5:321 (1980);
N. Nle, C. Eull, J. Jenkins, K. SEeinbrenner and D. Bent, SPSS:
Stattstlcal Package for Social Sciences at, 279-p0 (2d. 1975).

The 39 coefficienEs calculaEed by Dr. plarson range from+.5I to +.95r lndicat,ing that a candidaEer s race rdas the single
varlable most predlcEive of the number of votes received by t,hat
candidaEe. t .

32



araa ras gradually beconing more Eolarized. Defense expett Dr.

John Wlldgcn postulated, 1n a publlshed study, that, racial
polarlzat,lon deternined the outcone in New Orleans school board

electiong.

One explanatlon for the perceptlble growth of racial

Eplarization over the last 15 years, proffered by plalntlffs'
expert DE. Ralph CasEinere, a prof,essor of hlstory at the

Untverslty of New Orleans, is that as blacks have begun to gain

access to elective office, white voters have rallled in

lncreasing nunbers to vote fcr candidates oE thelr race. A lower

nargln of vlctory for black lncunben$,s evlnces a greatei

reluctance on the part of whlte voters to vote for a black. As

Dr. Cassinere observed:

o . . polarlty is nuch noEe pronounced among
shltcs ln voting for black candldates. Black
[votersl . . . traditionally have voted for
whlt,e candi.dates. I think there ls some
feellng of illegltinacy about black
candidates.

Record, Vol. II at 119.

ln an effort, to rebut plaintlffs' evidence of polarizaEion,

defendanEs introduced a statisttcal analysls of white cross-ov€(

votlng ln three recent Nes Orleans electlons. This analysis,

prepared by demographlcs erpert Kenneth SeIIe, sampled returns

fron 37 all-white or black precincts and purport,ed Eo demonsErate

t,hat race had no effect on Ehe resulEs of city-wide elections.

!,1r. Sellets use of an arbitrary, rather Ehan Ehe preferred random

33



nethod eo select test precincts severely blases the results of

hls analysis. The unlts choEen are not representatlve of the 400

or Eoro preclncts in New Orleansr and hence ara not suf,ficiently
predlctlve of votlng patterns ln Ehe city at large. Sone of the

Erreclncts culled were raclally heEerogeneous. Since 1t, ls
lnposslble to ascertain, sole1y fron Ehe returns of a nixed

preclnct, whether lndlviduals who voted f,or a particular

candidate are. blaek or whlte, daEa drarn lrora such precincts are

of scant probatlve value. For these reaEons, the_ court aEtaches

Ilttle welght to defendantsr cross-over analysls.

Assuning, -isgg@., that defendants . had establlshed thd

exlstence of a slgniflcant whlte cross-over vote in Orleans

Parlsh, the court remains persuaded that raclal polarization

plays a slgnificant role in the electoral process. the evldence

shows that only those affluent, better-educated whites residing

in the city's Erench Quarter and unlversity disEricts are

inclined Eo vote Eor a black candldate. This liberal, whit,e

conitituency is unlque to Orleans Parlsh. Sfnilarly eclectic

votlng preferences cannot be ant,lclpated in the adJacent suburban

parishes, rhose recently enhanced populatsions can be paEtia[y

ascrlbed to the exodus from New Orleans of white fanilies seeliing

to avold court-ordered desegregatlon of t,he city t s public

schools.

Nor doeE the Eact EhaE several blacks have galned elective

34



)

:

t

ofllce ln Orleans Parish detract frou plaintiffs' shoring of an

ovcrall paEtcrn of Eplarliatlon. To thc contrary, Mayor litorial

attrlbutes hts vtctory ln the 1982 rnayoral Eace Eo hls success ln

narshalllng the black vote. Of, the approxlnately 70 Orleans

Parlsh offlcials elecEed throughout the parlsh, only 15t are

black. A greater nunber of ninorlty offlceholders would be

cxpected in a parish wlth a black populaElon of 55t.

According Eo the expert testimony, Loulslanars naJorlty vote

requlrenent, whlch ordalns that a winning candldate nust receive

Eore than half the votes cas! ln an electlon, lnhlbtts polltical
partlcipatlon by black candidates and voters ln a racially
polarized environmenE. Racial bloc voElng, tn the context of an

electoral structure whereln Ehe number of votes needed for

electlon exceeds Ehe number of black votersl substantially

dlnlnlshes the opportunlty for black voters to elect the

candidate of their choiee. Ur. Selle testified that ln touisiana

a threshold black/white population ratio of 62/38 is a

prerequlstte to Ehe creatlon of a "safei nlnority district, or

one in whlch the electlon of the candidate preferred by black

vot,ers is guaranteed. Conversely, a 50/50 ratlo of black co

whlte populatlon gives riEe to a safe whlte district.lS

18. Deruographic studies prepared by Mr. Selle tdere offered Eo
shoc projected racial populaEion growth between the 1980 and 1990
censuscs. Through these studles, defendants sought Eo prove a
future increase in the black population percentage in Act 20rs
(footnote continued)

35



Diserlrolnatlon: Past and Present

Loulsianars hlstory of racial dlscrlalnatlon, both de {ure

and .glg liglg, contlnues to have an adverse effect on the ablllty
of iEs black resldents to partlctpate fully ln the electoral
process. DE. Ralph Cassinere traced that hlstory to lts genesis

durlng the eEa of qlavery, when the franchlse waE conferred

excluslvely upon whlte nales. Wlth the advent of post-Cl,vtl !{ar

Reconstructlon, black nales weEe peruitt,ed to regts'ter. Between

1858 and 1896 nany black state legislators were elected. Trro

blacks were elected Lieutenant, Governor and one, P.B.S.

Plnchback, was selected by Ehe state Senale Eo f111 a vacancy in

that posltion and lat,er served as Acting Governor. Pinchback

subsequently was selected to serve in t,he United StateE Senate

but, eas noE seited. Three blacks clalned seats ln the united

SEates llouse of Representatives but only oo€r Charles E. Nash,

was Eeat,ed. Charles VincenE, Black LegtslaEors ln Louisiana

Second Congressional Distrlct of close to 6.71 and, in the FirEt
Dlstrlct, of, 1.51. Given Mr. Sellers fallure to distinguish
blacks Eron a slgnltlcanE nunber of eEhnlc and raclal. groups
subsuned rlt,hln the Census Bureaurs rion-rhtte category, ind lo
apply hls methodology in a conslstent, nanncr to all parishes
withtn the targeted dlstrlcts, E4e court finds these data highly
suspcct and inadequate Eo prcve. 'that the Second DistrictrE black
population percentage will increase slgnlficantly under t,hepresent Act. See Klrkpat,r ick v. prei,sler , 394 U.S. 5ZS, 535(1959) ('tfllndTilgs nust be thoroughly
documented and applied throughout the SEate ln a systematic, not
an ad@, manner.t). | '

36



Durlno Recqn.structlon. Although black suf,frage flourLshed from

1867 to 1898, a gradual return to whlte suprenacy culninated tn

thc Loulslana Constitutlon of 1898. At thaE tine, the state

succeeded ln imposlng a 'grandfaEher' clause, as well as

dducaLlonal and property quallftcaElons for reglstraEion. These

requirenents conblned to reduce black voter reglsEratlon from

approxlnately I35r000 in 1896 to less than 11000 in 1907.

Followlng the Suprene CourtrE lnvalldatlon of the

grandfather clause ln 1915, Guinn v. United States, 238 U.S. 3471

(1915), voterE were subJect 'to an runderstandlng" clause which

hlndered black reglstratlon. Poll taxes were levled, and

reglstratlon rolls purged. fn 1923, the staEe authorlzed an

all-rhlte Deuocratlc prinary whtch tunctloned to deny blacks

access to t,he deterralnative elections, inasruuch as Republican

opposltlon to Ehe Democratlc party ln Ehe general elections was

nonexi.st,ent. This sErategen perslsted until tts condennation in

Srai!! v. Allwriqht, 32L U.S. 6{9 (1944). Cltizenship EeEts and a

prohiblElon against antl-single shot vot,ing were lnEtltuEed in

the 1950s. As a f,urther obstacle to mlnority access, the

legtslature establlshed a naJority-vote requlrenent for election

to party connit,teeE in 1959. For a quarter of a century, from

1940 to 1964, the SEates Rlghts Party spearheaded a strong

novement, against black enfranchisenent and judicially-directed

desegregatlon. But for Ehose declared unconstitutional by the

37



Sugreoe Courtr thq varlous dlsentranchlscnent technlques

inplencnted by tha state and lts whlte naJorlty ParEles

suBpressed black grcllt,lcal lnvolveuent untll banned by Congress

ln 1965.19

Llke other southern stat,esr loulslana enforced a pollcy of

:aclal segregatlon ln publtc education, transEortation and

acconnodatlons. Despite the Suprene Courtts rullng ln Brown v.

Board of Educatlon t 347 U.S. 483 (f954), local school boards

refused to desegregate ln the abeence of a federal court order..

19. SEattstics denonstratlng the extent of blact<
dtsenfranchlsenent belween 1910 and October 1964, lncluglve, have
becn conptled. !n Loulsiana Politlcs at 299 (Boloer, €d. 1980):

Black Voter Registratlon ln Louisiana,
1910-1964

Dates B1ack Reg.

Est. Black
Adult PoP.

(lrlost Recent Census )

t Black
Adult, Pop.

R:9. to vote

r910
1920
1928
1932

Oct., 1936
Oct., 1940
Oct.r 1944
Oct., 1948
Oct.,1952
July, 1954
Oct., 1955
Dec. r 1960
Dec., 1962
oct., 1964

17{r 211 (!{a1es}
359 r 251
359, 251
415, 047
415,0{7-
473,562
473 r562
113,362
{81, 284
481, 284
481, 284
514, 589
51{,589
514, 589

730
3r 533
2r 054
1r 59r
1,981

885
L,672

2g rL77
107, 84{
112,789
152r 578
158,765
I50 r 878
L64,7L1

.4

.9

.5

.3

.4

.1

.3
5

22
23
31
30
29
32

38



Even Eoday, lhe federal courts are co'npelled to ruonltor schools

around the state lor conpllance rlth lgts teachlngs. A dual

unlvcrslEy slystea was operat,ed by the state untll 1981, when !t

was dlsnantled pursuant Eo a consent decree. Publlc factlltles

were not open to ruernbers of both races until the late 1960s.

As a consequence of thls hlstoryr separate rhlte and black

socletles developed in Orleans Parlsh. Segregatlon was the norn

in the private sectorr is reflected ln t,he parlshts nonochronatlc

nelghborhoods, churches, buslnesses and clubg. Dlscrlmlnatlon ln
:

emplolment was widesPread.

Whilc dlrect lmBedlnents to black reglstratlon ln votini

have been eradlcated, the resldual eCf,ects of, past dlscrinlnation

stlll lnpede blacks fron reglstertng, votlng or seeklng electlve

ofllce ln Orleans Parish. No black has been elected to statewide

oEfice ln Loulsiana in thls century, nor has any served in

Congress since the days of Reconstruction. NotwiEhstanding a

black population of 29. {t, only 7t of Loulsiana's elected

officlals are black. Current census flgures disclose that blacks

on the average earn less than whltesi 95t oE alt Persons with an

lncome of less than 95r000 aEe black. Blacks ln contenporary

Louislana have less educat,ion, subsist under Poorer living

condttions and in general occuPy a lower socio-economlc status

t,han whltes. Though f requent,ly more subtle, employnent,

dlscrinlnatlon endures. these factors are the legacy oE

39



hlstorlcal . 
dlscrlnlnation ln the areaE of education, employraent

and houslng. Such lnfluences, ln conjunction with past election
practices ercludlng blacks fron the politlcal process, account

lor the preEent dtsparlty between black voter reglstration and

black gnpulatlon in Orleans Partsh. Rron Ehe evidence adduced,

we are persuaded that they account for the lower black turnout aE

election ttne. A. sense of futllity engendered by the

pervaslveness of prlor discrinination, both public and private,

ls pcrcelved as discouraging blacks frorn enterlng into Ehe

governEental Process. '

Conclusions of Law

Invoklng lts authority to enforce Ehe substantive provlslons

of Ehe Scurteenth and EifteenEh nnendments, Con-gress recenily
amended S 2 of the .Voting'Rights Act of 1965, 42 U.S.C. S 1973

(I982) .20 Specifically designed to reach . claims of vot,ing

20. [I.R. 3112, anendlng S 2 Eo tncorporate a iresultsn t,est and
extend the 1965 Votlng Rights Act, was passed by Ehe House on
October 15, 1981. The Senate adopted Ehe version of S 2 reported
out of the Senate ComniLtee on the Judlclary, S. L992, on June
18, 1982. On June 23, 1982, the llouse unanlnously adopted Ehe
Senate b111. As signed into law by the President on June 29,
1982r anended S 2 of the Voting Rlghts Act of 1965, 42 U.S.C.
S f973, provldes:

(a) No voting qualificaEion or prereguisite Eo i
votlng or standard, practice, or procedure tshall be inposed or applled by any State orpolitical subdivlsion in a manner which
results ln a denial or abridgement of the
right of any citizen of the Unit,ed States to'

(footnote continued)
40



dllutlon hcretofore deened beyond the anbit of S 2, RePort on S.

vota on account of racc. or color t oE in
contravention of the guaranteeE set forth ln
S { (f ) (2) a42 u.S.C. S 1973 (f ) (2) L ag
provided in subsection (b).

(b, A violatlon of subsectlon (a) is
cstablished if , based on t,he totallty of
circurnstances, lt is shown that the politlcal
processeE leadlng to nonlnation or election ln
the State oE Polltical subdtylsion are not
egually open to PaEttclpatlon by neobegs of a
class oE clEtzens Protected by subsection (a)
in that its nembers have less opEortunity than

'other nerubers of the electorate to particlpate
ln the polltlcal proeess and to elect i

representaElves of thelr choice. The extent
to whlch nenbers of a Protected class have
been elected co offtce -ln the Statc or
polltlcal gubdlvtslon ls one circurnstance
ihtch nay be considered: Provided, That,
noEhing ln Ehls section establishes a rlght to
have nLnberE of a proEected class elected ln
nunbers equal to thelr ProPortlon in the
Enpulation.

!{e are persuaded that Congress lntended Ehe 1982 amendmentE
to take efEect irarnedlaEelY, and Ehus Eo aPPly to pending cases.
See 128 Cong. Rec. 83841 (dally ed. June 23, 1982) (remarks of
EEp-. Sensenbrenner) i jg. aE s7095 (daily ed. June- 18, I982)
(rimarks of Sen. KennE[y, majorlty floor manager of S. L9921 .
Accord, Hartford, Racla! Vote Dilution and Separation of
F6Effia An Exploration of the Conf lict Between the Judicial.Intent' and the Legislative "Results' SEandards, 50 Geo. Wash.
L.Rev. 689 , 725 (1982). Several dllution actions lnltlated prior
t,o June 29, 1982, the effective date of the anendnents, have been

-3::::""1r"1 Ei::ii3l":" ti?il"u o|o.'''ffi:e#iir' ffi
- - Thomasville Branch, of the N.A.A.C.F. v

Thonas Countv, Civll No. ,ffiir No. c.A.-5-7G-34 (N.D.r!il-'irffi
ffi[ countv, 544 F.Supp. 1122. . (lf:D.T.".tn. 1982t - 

(gr?nt, . oE

@julclion). .ln. +!P+g!i, . th€ .ggurt,. fgund lhaEipplicatlon oE S 2 to a distrTCtina- plan did not Present a
rllrOacttvlt,y issue because iEs analysis focused on the effects
of Ehe plan in future elections.

4t



1992 of t,he Senate CornmitEee on the Judiciary, S.Rep. No. 97-4L7.

97th Cong., 2d Sess. 28 (1982); Rvbicki v. SEate Board of
Elect,ions, Civil No. 81-C-6030 (N.D.I1l. 1983) (three-judge

court) , 2l the 1982 amendment dispenses wiEh the requirement thaE

a plaintiff demonstrate intenEional discrimination in the

imposition or maintenance of the disputed electoral structure.
S.Rep. No. g7-4L7 at 15. See Buchanan v. Citv of Jackson, No.

81-5333 (6th Cir., flled June 7, 1983); Campbell v. Gadsen Countv

School Board, 691 F.2d 978 (Ilth Cir. 1982); Mcttillan v. Escamblir

21. In Cltv of Mobtle v. Bolden, 446 U.S. 55 (1980), four
Justlces o Ehat vote dilution claims
are cognizable solely under the Eourteenth Anendment. Under thepluraliEy's narroo constructlon, the Fifteenth Amendnent bars
only a dlrect, purposeful denlal or abridgment of the right oE a
black person to vote. Since former S 2 of t,he Voting Rights Actof 1965 "was intended to have an effect no different from thaE of
Ehe Eif EeenEh Amendrnent i Eself , n jg. at 61, it likewise lras not
deened !o support a dilution cause of action. Though the Fourth,
Eifth and Eighth Circuits have concluded that the five-Justice
ma jor ity subscr ibes to the view thaE t,he Ei f teenEh A.nendmentgives rlse Eo a dilutlon clain, gE, -4-l Perkins v. Cit,v of
west nelena, 675 E'.2d 201 (8Eh cI-.); aff ,m
T03-s.ct. 33 (1982) ; washinscon vlTTillil e o1[T2a 9r3
(4th Cir. 198l); Lodqe v. Buxton,(4th Cir. t98I); Lodqe v. Buxton, 639 F.2d 1358 (5t,h Cir. l98l),
aff,!d sub nom. @, _ U.S. _t I02 S.CE. 3272ffiuffibrrra-rlles i-Giiior try of r,hree.
RoqerE v. Lodqe, _ U.S. _, 102 S.Ct. 3272, 3276 n.6
ffi-JEEFces t.ruEi6 stevens, concurring, and
Justlces WhlEe and Marshall, dissentingl disagreed with t,he
pluralit,yr s basis for puEting aside the Fif teenBh AmendmenE.') .
The Roqers court expressed no opinion on this issue, Ieaving
undisEurbed Ehe plurality's decision wiEh respect to the
appli.cabiliEy of t,he FiEt,eenEh Anendment and the or iginal version
of S 2 Eo dilution claims. See Campbell v. Gadsen Coun!1 School
Board; ttct'tillan v. EscambiaGu

-

need we consider the issue.

42



ggg., 6gg. F.2d 950 (Srh cir. 1982), jglllill. posEponed,

U.S. _0 I03 S.Ct. 1766 (1983). Guided by Ehe axiom that

cases should be resolved, where PosEibler orr statutory rather

than conEtitut,ional grounds r w€ shall analyze plaintiffs'

dilution claim under Ehe amended S 2.22

22. Dilution Jurisprudence has evolved priraarily in Ehe context,
of constitutional challenges Eo state at-large or mulEimember
dlstricts. though the Suprerae Court has noE directly addressed
the lssue, Ehls circuit has recognlzed' Ehat Ehe standards for
decision developed in the multimernber or at-Iarge districting
cases govern t,he adjudication of claims involving . _the
consEituLtonallty of slngle-fnember dist,r icEs. Nevett ,e. Siqes,
571 F.2d 209 (5t,h Cir. f978), 9gE!-. deniegr !t6 9..S. 951. (1980);

d of suoervisort5sl--ffii- rrg (5t,h cir. ) r ceE!:
ffilnson u- Comnissioners Court, 505

ksev v. Board of Supervisors,554 F.2d 139 (5th cir.), cerE.,slrE! t a-Y. g, -Jz a a -r l-e.. --- 
t , ,

l-,"r, :,674 (5ttr Cir. 1974). ee R. Dixon, ratic
iipiesentation: ReapPorEionrnent Ti- Law and Politics 484
(I068 ) . l{i th regard to the applicability of Ehe diluEion
rat,ionale to congressional districting casesr w€ believe Ehe
better view is that irrespective of whether a state legislat,ive
or congressional dist,ricting plan ls Ehe subject of dispute, o'g
are reouired Eo det,ermine the same guestion, whether or not there

.'n Nevett v. Sides t 57LnEeres t
, 505

F.2d at, 678) (emphasis in original). E, *-, In re:
pennsvlvania Congressional DigEricts Reapportionment Cases, Civ
o. T2:OI9Z; (u.D.Pa. 1982) (three-judge court) r a
mon %--Devis, U.S.L.W. (U.S.S.Ct., July 7 ,

ressional DisEricts Reapportionment Cases
.D.I1l. l98l) (three-judge court), aEf'

ffiv. otto, tl54 1130 (1982).

Slmllarly, the "toEaliEy of circumstanees" analysis, derived
from Ehe.mult,imember dilution cases of white v. ReqrJ..lEg!, 4Lz
U.S. 755 r1973), and Z

1973) (en banc), af sub nom. East Carroll
arish School 

'Ao -U.re
curiam) r Eo sEaEe legislative or
congressional distr icting schemes. According Eo the Senate
( f oottot,e . cont i nued )

.on cases of white v. Regist,er, 4Lz
v. ttcKeithen,m Cir.

43



A. ConstitutionallEy of Amended Section 2.

Before proceeding to Ehe merits of plaint,iffsr dilution
I

claim, we must, address defendantsrchallenge to Ehe 1982 amendment,

to S 2. Defendants Eake the position Ehat in codifying a Eest

which reli'eves conplainants of Ehe burden of provlng invidious

intent, Congress has soughE to overrule the Supreme Court,Is

holding that such intent must be establlshed as a prerequislte Eo

recovery under either t,he EourteenEh or EiEteent,h AnendmenEs.

City of Mobile v. Bol,itenr, 446 U.S. 55 (1980). Given thi
congruence of S 2 and Ehe PifEeenth Amendment, defendants a(gue,

the separation of powers doctrine precludes Congress Erom

expanding the sEatute to reach claims founded on discrirninaEory

lmpacE alone. By amending S 2 to accomplish Ehls impermissible

alm, the legislature has, in deEendant,s I estimation, usurped Ehe

judiciary's exclusive prerogative to define the limits of Ehe

Consti t,ution.

In arnending S 2, Congress reaffirmed "Ehe right oE minority

Judiciary Cornrnitt,ee :

Whitcomb Iv. Chavis, 403 U.S. L24 (1971) ],
lElEgr 3j!gq, and their progeny dealt with
electoral sygtem Eeat,ures such as at-Iarge
elections, majoriey voEe regulrements and
Istate Legislat,ivel disErlct,ing pIa::.;.
Ilowever, Section 2 remains Ehe major sEaEui,cxy
prohibition oE
d iscr iminaEion.

all votinq r iqhts

S.Rep. No. 97-417 at 30 (emphasis added).

'44



voters to be. free from election practlces, procedures or nethods

Ehat deny thea t,he same opportunlty to participate in the

pofiElcal processes other citizens enjoy.i S. ReP. No. 97-4L7 at

28. t\ro prtncipal objectives of the statutory iresultsi tesE

were posited: Eo reach discrimlnatory conduc! which might

otherwise evade liablliEy under the nore sEringent intenE assay,

and to eradicate Ehe contemporary effects of past

dlscrimlnat,ion. !|. aE, 40; II.R. Rep. No. 97-227, 97th Cong., lst
Sess. 3 (1981) . to this end, arnended S 2 resurrected thg

prlnciples applled in voting registratlon cases prior to

Bolden.23 According to the Report of the Senate ComnitEee on Ehe

23. In White v. Reqester , 4L2 U.S. 755 (1973), the Suprene Court
ldentifi@Eact,orsre1evantEothedeLermination
whether a multimember or at-Iarge districting system denied
blacks and Illspanic voters Eull access to the political
process. Focusing on whet,her Ehe distr icts operated Eo dilute
Ehe voElng str.ength of racial and ethnic minor itieE, the Court
held that "t,he impact oE the district. . . . consE,ituted invidious
discrinlnaton.' Id. at 767. the Former Fifth organized the
White criEer ia intt- a coherent Eest which permitted ttre Eact oE
ffiion Eo be established upon proof of the aggregate of Ehese
criteria. Zimrner v. lfqK€ilhen, 485 F.2d L297 (5Eh Cir. I973) (en
banc), aff'd on oEher grounds sub nom. East Carroll School Board
v. uats c
Effifffionsidered Ehe impact-oriented zimmer analysis in light
of Wash Davis, 426 229 ]Tfr6t, and virtaqe €
aifinqEon-TEIqhEs % ueEropoliEan Eouslnq Development Corp., 429

(L9771, plaintiffs asserting dilution claims in EhisY.Y. t--. . t a !---- !--rz

circuit could prevail by demonsErating eit,her discr iminatory
resulEs or intent. See authorit,ies clced in Nevett v. Sides, 57I
F.2dat232(I{isdomF.,sPeciaI1yconcurri@Ehe
court iuled that while a showing oE invidious inE,ent is essent,ial
to recovery under the Eourt,eenth and FifEeenth Amendnents, such
intenE could be inferred from proof of an aggregate of the zimmer
factors.
(footnote cont,inued)

45



Jud ic iary:
In pre-Bolden cases plaintiffs could prevall
by showing EhaE a challenged electlon law or
procedure, in the contexE of Ehe EoEal
circumstances of the loca1 electoral proceEs,
had the resulE of denying a racial or language
minorit,y an equal chance Eo participate in Ehe
electoral process. Under Ehis resuLts Eest,
iE was not necessary to denonstrate that, t,he
challenged election law or procedure was
designed or rnainEained f or a discr iminat,ory
PUTPOSe.

In Bolden, a plurality of the Supreme Court
broke wiEh precedent and substantially' increased t,he burden on plaintiffs ln voting
discr imination case.s by requiring proof of
discriminatory purpose. The CommitEee has
concluded Ehat this intenE Eest places an
unacceptably difficulE burden on plaint,iEfs.
It, diverEs the judicial inquiry from the

requi rement,, opining that Nevett was prernised on a
miiapprehension tnau proof of di=EFitTnaEory imlact perruiEEed an
inf erence of discriminat,ory intent. Acknowledging that, Zimmer I s
circumst,antial f act,ors might "af f ord some evidence--- oil a
discriminatory purposer" Ehe pluraliEy sEated t,hat such factors
would not alone furnish sufficienE evidence thereoE. 446 U.S. at
73. Wit,h respect to the significance of Bolden, Ehis court LaEer
opined Ehat, ". . o it appears that, the Supreme Court has somewhat
increased the proof on plainEiffs in Ivote dllutionl cases."

v. Buxt,on, 639 F.2d I358, I373 (5Eh Cir. 198t),
ejs v. LgdqF t _ U.S. _, L02 S.Ct. 3272

EanaEi-of-Fo-or in nffige vote Dilurion
Discrimination Cases AfEer Citv of Mobile v. Bolden, 10 Fordham
Urb. L.J. IO3 (1981) . .t rn rt Justices
evidently concurred in this judgment,. Eee footnoEe 22, Lnflca.

For an exhaustive survey of vote dilution jurisprudence,
from. its origins in Ehe seminal case of Revnolds v. Sims, 377
u.s. 533 (1964), Eo E!lg, see Ehe Report on s. L992 of the
Senate Judiciary CommiEtee, S.Rep. No. 97-4L7 at L9-27.

A plurality of t,he Suprene Court subsequently rejected Ehe
Fifth Clrcuitrs effort, in N€!e!!, to reconcile Zimner wit,h
Washinqton and Arlinqton ttE6'ETi by inJecEing --ii-inrent

Accord, Lodqe

-

af f td sub nom.

16



cruc.ial quesEion of whether minorieies have
equal access Eo Ehe electoral process to a
Isicl historleal question of individual
motiveg.

S.Rep. No. 97-{17 at 16.2{

Regardless of whether former S 2 purport,ed to track the

Ftfteenth Amendnent,, and thus mandated proof of invidious intent,
Congress has since elected Eo broaden Ehe statutory proscription

Eo embrace conduct whlch is discriminatory in eit,her purpose or

effect. Assuning that amended S 2 const,iLutes a valld exercise

485 F.2d L297 (5Eh Cir. 1973)
. East Carroll Parish

., 424 U.S. 636 (I975) (per curiam), to
scriminaEory intenE in a voEe dilution

a rnarked departure Erom Ehe pluraliEy's opinion in Bolden);
Itcllfllqn _Y-Eect'AEi_a_!qU_qLI; CardweIl, Voter DiluEion And tne
ffirl-fT]iEFn-r.aw 863 (1t82) . DissenEing Just,ices

24. while reafflrming the Bo1den purposeful discrimination
requirement, Ehe Suprene Court has itself alleviated to some
degree Ehe complainant's burden of proof in @,U.S. _' 102 S.Ct. 3272 (1982). In Roqers, six Justices
E!flroved trrE-TTEttr Circuitrs reliance upon pEEf the factors

case. By approving judicial resort Eo the Zirnmer criteria,
hereeofore adjudged - inldequate in Boldeqr to dffiTish intenc,
and evincing greacer defelence to TF-Factual findings of the
Erial couri, Ehe Roqers opinion "signals a significanE reereaE
Erom the Bolden pluraliEy's racial vote dilution analysis and a
revitali zaTT6i-of the Z immer f actors in Ehe conEdxt oE an
I tnEentl . . . inquiry.'---Ertford, Racial Vote Dilution, 50
Geo.Wash.L.Rev. at 716-17. Sge Buchanan v. City of Jackson, No.
81-5333 (6th Cir., f iled .funFZ ared
to require direct evldence oE discr ininatory intEr...t, whereas
Roqers restores t,he significance oE circumstantial evidence in
asCertaining the existence of such inEenE, the latEer represents

PoweII and Rehnquist, mainEain t,hat Ehe holdings in Boldqn and
Roqers cannot be 

-reconciled, suggesting that the- BoLde[?EEj3naIe
FTi' ef f ect been repudiated uy the ma jor ity. Effi v. Lodo",
102 S.CE. at 3281 (Rehnquist and Powell, JJ., dissenting).

set f orth in 7.

(en banc) r 4

47



of leglslat,ive power , t,heref ore, Ehe Bolden court I s

interpretation of the original S 2 is no longer controlling.

Accordingly, we turn for guidance to a long line of Supreme Court

cases wherein other key provisions of the 1965 Voting Rlghts AcE

have passed const,iEutional muster, such provisions havi69 been

deerned Eo fall within Ehe purview of Congressr enforcemenE

author I Ey.

Section 4 (a) of Act, 42 U.S.C. S 1973b(a), abolishing

llteracy tests ln any jurisdiction where less Ehan 50t of th!
voting age resldenEs had vote'd in prior elections, was considered

a necessary and proper means oE implement,ing the Fif t,eenth

xaendment ln South Carolina v. Kat,zenbach, 383 U.S. 30I (1966).

Addresslng t,he staters contention Ehat Congress had exceeded its
enforcement powers under S 2 oE t,he Eifteenth A:aendment, the

KaEzenbach court proclaimed that 'Congress has Eu11 remedial

powers to eEfectuate Ehe constitutional prohibition against

racial discrimination in voting. n }|. at 326. The CourE has

slnce cited Katzenbach for the proposition "that, congressional

authortty [ernbodied in S 2 of Ehe EiEEeenEh eroendmentJ extends

beyond the prohibition of purposeful discr"ininaEion to encompass

sEat,e action Ehat has discr iminaEory impact PerPetuating t,he

ef f ects of past discrimination. " FuIIilove v. KIut,zBig!, 448

U.s. 448, 477 (19801 ldicta).25
Later in Ehe 1955 term, in K{tzenbach v. Morqan,384 U.S.

48



541 (I956) , . the Supreme Court sustained S 4 (e) of the Voting

RighEs Act of 1955, 42 u.s.c. s 1973b(e), against an attack

founded on S 5 of the fourteenth Amendment. Section 4 (e) Eorbade

t,he use of English literacy tests to deny the right to voEe Eo

any person who had attained a sixt,h grade .educaEion in an

'American Flag' school, in which the language oE instrucEion 'ras

other than Engl ish. This provis ion was airued at, New Yor k' s

dlsenfranchisement of Puerto Rtcan resldenEs. !{rlting for Ehe

majority, Justlce Brennan analogized Congresst g 5 authority Eoa

23. In Klutznick, a plurality of the Suprene Court upheld the
consEltutTo-nEfiEfof Ehe'minoiity businesi enterprlse" lrovisionof the Publlc l{orks Employnent Act of L977, 42 U.S.C.
S 6705 (f) (2), which dictates that IOt of federal grants for loca1
public works projects be set aside for minority business
enEerpriseE. Chief Justice BurgeE's plurallty opinion displays adeferential at,titude Eoward Congressr exerciEe of lts remedial
POwers:

Ilere we deal ... not with Ehe limited
remedial powers of a federal court, . . . but
with the broad remedial Eowers of Congress.
It is fundamenEal Ehat in no organ of
government, sEate or federal, does there
repose a more comprehensive remedial power
Ehan in Ehe Congress, expressly charged by the
Const,itution wiEh compeEence and authority to
enforce equal protection guarantees. Congress
not only'may induce volunEary aciion to assure
compliance wiEh exisEing federal statutory or
constituEional antidiscriminaEion provisions,
but, also, where Congress has ; authoriEy to
declare certain conduct unlawfutl it, may . . .
aut,horize and induce state action Eo avoid
such conduct.,

448 U.S. at 483-84 (cication omiEEed). '

49



inter alla, the plenary granE of the necessary and proper clause,

Article f, S 8, cl. 18. Thus, the critical questlon was rwhether

S 4 (e) may be regarded as an enactment Eo enforce Ehe Equal

Protection. Clause, . whether iE is 'plalnly adapted to Ehat

endr t and whether it is not prohlblted by but ls consistent r{ith

'the Ietter and spir it of Ehe .constitution. I " Id. at 651

(quot,ing Eron McCullock v. Dlarvland , L7 U.S. tl wf,".J I59, 4ZL

(1819) ). Notwlt,hstanding the absence of a record of actual

discrimination, Ehe Court endorsed Congressr passage of a measure

which remedied hlstorical diicrlnination, and enabled the Puerto

Rlcan communlty to' combat prospective stat,e violations of Ehe

Fourteenth Anendment. As Chief Justice Burger subsequently

observed, in discussing the import of l.lorqan:

To uphold t,his exercise of congressional
authority, the Court Eound no prerequisiEe
EhaE application of a literacy requirenent
violated the Equal Protection Clause....
IE was enough that, the Court could percelve a
basis upon which Congress could reasonably
predicate a judgment, EhaE applieation of
IiEeracy qualifications wit,hin the compass of
S 4 (e) . would discr iminate in E,erms of access
Eo Ehe ballot and consequenEly in Eerns oE
access to the provision or administration of
governnental programs.

FuIIilove v. Klutznick, {48 U.S. aE 477 (d icta ) (c irat ions

omitted).

Congressr enactment, of a five-year national ban on the

utilization of qualification tesEs and devices in Eederal, sEate

and local elections, which Eook the form of S 2(d) of the Voting

50



Rights Act. amendment,s oE 1970, currenE version codif ied at, 42

U.S.C. S 1973b, tras sanctloned by t,he Court in Oreqon v.

l.titchell, 4OO U.S. 112 (1970).26 Although the Justices authored

fiue separaEe opinions, all nlne sEressed thaE Congress is
endowed with substanEial discretlon ln enforcing the

Reconstructlon amendments. Once agaln, the Fullllop court,s

conment,ary is instructlve:
The [Mitchelll CourE was unanlnous, albeit in
separate opinlons, in concluding Ehat Congress.was within lts authority to prohiblt the use
of such voter qualificattons; Congress could :

reasonably determind thaE its legislation was
an appropr taEe met,hod of I foreclosing theposslbility thaE purposefully discrlminatory
adninistration oE liEeracy tests would escape
undetected andl attacklng the perpetuation ofprior purposeful dlscrlnination, even Ehough
Ehe use of these Eests or devices raight have
dtscrininatory effects only.

Fulrirove v. Klutznick, 448 u.s. at 477 (dicta) (citation
omitted) .

rn an opinion issued conEemporaneously with Bolden, citv oE

Rome v. Unit,ed SEaEes, 446 U.S. 156 (1980), Ehe Supreme Court

rejected a constit,utional assault on S 5 of Ehe Voting Rights

26. At issue in Mitchell_ 'dere provisions of the Voting Rights
ActArnendmentsofffi.-I,.No.-gL.281,which:(1)red-uced-the
mininum voting age in state and federal elections Ehe latterwas upheld by the Court, and Ehe Eormer stricken as
unconstitutional i 12) eliminat,ed ri teracy EesEs or dev ices for a
five-year term in sEale and Eederal elections throughouE Ehecountry upheld; and (3) erection of a bar to stat,e
regui'rement,s disqualifying voEers in presidenEial elections
also upheld.

5I



Act, 42 U.F:C. S I973c. Under $ 5, any change in voting or

election laws proposed by a covered jurisdiction will not be

approvedr oE "preclearedr' by the Unit,ed States AtEorney General

unless it "doeg not have Ehe purpose and will not, have t,he effect
of denylng or abridging the right to vote on accounE of race or

color. . . .' lhough fully cognizant Ehat the Eifteenth

Amendment prohibits only inEentlonal discriminaEion, the Court

stated. that S 2 gf that amendmenE permitted Congress to interdict
election procedures which were noE in and of Ehemselves moEivated

by racial anlmps, but which created t,he r isk of purposef uI

discrimination or perpetuaEed Ehe efEects of past

dlscr imlnat,ion. Jg. at L76, L77 .

lies this Einding:

Congress could rationally have concluded Ehat,
because electoral changes by jurisdictions
with a demonstrable hisEory of intentional
racial discrimination in voEing creaEe Ehe
r isk of purposef ul discr iminaEion, it 'rasproper Eo prchibit changes that have adiscriminatory impact,.... we find no
reason, t,hen, Eo disturb Congress' considered
judgment EhaE banning electoral changes Ehat
have a discriminatory impact is an effective
meEhod of prevent,ing States Eron "rundotinglor defeatIing] Ehe righEs recently wonr by
Neg roes. i

$. at 177-78 (quoting from Beer v. United StaEes, 425 U.S. I30,

I40 (1975) ) (citations and f :.:Enotes omiEted). Such remedial
:

measures need only be !'appropr iat,e, " within Ehe meaning of

McCulloch v. Marvland, in order Eo effecEuaEe substanEive rights

At, the hearE of the decision

52



secured by 5- I of the Fifteenlh Anendment.

Slmilarly, Congress here deEernlned, after extensive

hearings and Ehe taking of.expert and lay testirnony, that the

lntenE test lnordlnaEely "burdened plalntiffs ln vote dilution
cases, was unnecessarlly divislve due to Ehe charges of racism

which nust inevttably be leveled against individual officials or

entire comnunt!ies, and, nost important,ly, coropelled proEracted,

often futi.Ie inquirieE into the motlves of officials who acted

many yearE ago. S.Rep. No. 97-4L7 at 36-37. Ultimately, ah?

EtaEe defendants could all too easlly advance racially neutral

Justitications in rebuttal. rn congresst Judgment, Ehe danger

that a defendant offtcial would seek to rebut the ptaintiff's
circunsEantlal evidence oE purposeful dlscrlmination "by planting

a false trail oE direct evidence ln the Eorm oE official
resolutions, sPonsorship statements and other legislative hisEory

eschewing any racial motive . . . seriously clouds Ehe prospects

of eradicating Ehe remaining insEances of raciar
discrimination." Id. at, 37. See Extension of Ehe VoEing Rights

Act: Bearings Before Ehe Subcorarnit,t,ee on Civil and

Constltutional Rlghts of the House Coranittee

97th Cong., lst Sess. 1189 (I982) (testimony

counsel for t,he Mexican-American Legal Defense Fund)

(contenporary of f icial discr imination more subt,le; smoking gun

evidence oE racial animus can no longer be discerned in t,he

on

of

the Judiciary,

Joaquin Avila,

53



'publlc recotd) .

congress thus sought Eo enact a reglslative prophylaxis,

calculated to foresEall the institution of potentially
dlscriminatory electoral systems and extirpate Eacially neutral
devices or procedures which continue to expose mlnorlt,y voters to
harmful consequences rooted in historical discrimination. S.Rep.

No. iZ-lfZ at 40. Summarizing the bases for Eheir conclusions

that ProPer enforcement of Ehe Fourteenth and Fifteenth
mendments required a ban on electlon procedures and practices

which curminate in a denial or abridgement of the righE Eo vote,

the drafters Eound:

(1) that the difficulries faced by plalntifEs
forced Eo prove dlscriminatory intent,
through case-by-case adjudication createa substantial risk that tntentional
discrimination barred by Ehe FourteenEh
and FiEEeenth AmendmenEs go undetected,
uncorrected and undeterred unless the
results tesE proposed Eor section 2 is
adopted; and l2l thaE voEing practices
and procedures EhaE have discrininatory
results perpeEuaEe the effects of past
purposeful d iscr iminaEion.

E.
We concur in Prof essor -\rchibald Cox I s interpretaEion of

Supreme Court precedent as vesting Congress wiEh broad

discretion, under Ehe Fourteenr.h and Fifteenth Amendments,

. . . to outlaw alI voEing arrangements that
result in denial or abridgemenE oE Ehe right
Eo voEe even Ehough not all such arrangements
are unconsEit,ut,ional, because this is a meansof preventing Eheir use as engines of

54



J-'

purposive and Eherefore unconstitutional
raifal diEcrininatlon.

EeaElngs on the Votlng Rights Extension Before the Subcornmittee

on the Constitution of the Senate Judiclary CommiEteer 9Tth

Cong., 2d Sess. (Eeb. 25, f982) (prepared staEement of Professor

Archibald Cox at 1{). Enpirical findings by Congress of

perslstent abuses of the electoral Process, and the apparent

failure of the inEent test to rectify those abuses, were

raeticulously documented and borne out by ample testimony. Based

on t,hese findings, Ehe leglslaEors reasonably concluded thats

substantial anelioration of a dtlut,ion plaintlffrs statutory.

burden of proof was warranted. Although osEensibly contradictory

oE the Supreme Court's holding in Eg!!gr27 we percelve S 2 as

27. Recognlzing that iE wielded a'figuraElve two-edged sword,
one which might be Eurned agalnst i.t in such conEroversial areas
as school prayer, busi.ng and abortion, the SenaEe Judiciary
Comnitl,ee reasoned:

It has been suggesLed EhaE Ehe Commit,tee bill
IS. I9921 would overEurn a constit,utional
decision by the Supreme Court [Boldenl, in
spite of Ehe strenuous oPPositlon oE some of
the billr s proponents to unrelated
Congrlssional efEorEs Eo override Supreme
Court declslo rs in other areas by statute
rather Ehan by constituttonal alrendment.

this arguaenE simply rnisconst,rues lhe
.hature of Ehe proposed amendment Eo secEion
.crdo. Certainly, Congress cannot overEurn a
subsEantive interpretation of Ehe ConstiEution
by the Supreme Court. Such rulings can only
be alEered under our form of government by. consEit,utional anendmenE or by a subsequent

(Eootnote. continued)
))



merely prescr ibing a potion to remove the vestiges of past

official discrimination and to ward off such discrimination in

Ehe future. Congress has not expanded the Constitution's

subst,antive guaranEees but has simply redefined and sErengthened

the stat,utory proEecEions around core constitutional values, thus

exercising ics authority wiEhin. Ehe confines of the

Constitution.2S or, as the presidenE oE the Amer ican Bar

dec is ion by t,he Cou r E .

Thus , Cong re ss cannot al Eer t,he j ud ic iaI
int,erpret,aEions in Bolden of Ehe Fourteenth
and f if teenth RmendffiiF by s imple sEatute.
But, the . . . amendmenE Eo secEion two does
not seek to reverse Ehe Court,Is constitutional
int,erpre Eat ion landl is a proper
exercise of Congress' enforcement power.

S.Rep. No. 97-4L7 at, 4I.

28. One commentator postulates:

Because the IresuIt,s ] Eest, is des igned Eo
reach those eLect,oral schemes EhaE are mosE
likely t,o permit purposef ul discr ininat.ion to
escape detecEion, Eo perpetuaEe the efEects of
past discriminaEion, or Eo Eacilicate
purposeful discrimination in Ehe provision of
public ser v ices , arnended section 2 rnust be
regarded as wi t,h in the scope of cong ress ional

. power under t,he enforcement clauses oE t,he
Fourteenth and Fift,eenth Amendments. To hold
otherwise Ehe Supreme Court would have Eo
deparE sharply from precedenE and adopt
Justice Rehnquist I s view Ioutlined in his
dissenEing opinion in City of Rome v. Ur;'i t,ed
S Eates I that the cong ress ional en f orceruent,
i6E-fs Iimit,ed Eo proviaing remedies that do
not reach beyond the proh ibi t, ions of Ehe
amendments themselves as inEerpreEed by the
Supreme Court,.

(footnoEe continued)

55



Association opined bef ore Ehe Senat,e Judiciary CommitEee,

Under t,his Amendment, the Supreme Courtrs
interpretation of the Proper constiEutional
standard . . . Iisl IeEt inEact. Only t,he
sec t, ion 2 s t,at,utor y standard I is I
changed....

Ilear ings on the Voting RighEs Act Extens ion Bef ore the

Subcommitt,ee on t,he ConsEit,ution of Ehe Senat,e Judiciary

Commit,t,ee, 97th Cong. , 2d Sess. (Feb . 25, 1982) (PrePared

statement, oE David R. Brink at, 7).

Senate crit,ics of S 2, Ied by SenaEor Orrin Hatch t tdised

t,he specter of overbreadth, arguing that the excePtional

condiEions justifying unequal application of S 5 t,o jurisdictions

with a history of inEentional discriminaEion did not support the

extension of a nat,ionwide ban encompassing noncovered

j ur isdictions. Subcommi tEee on t,he Const,it,ution of Ehe Senate

CommiEtee on the Judiciary, 97th Cong., 2d Sess., Voting Rights

Act, Report on S. L992, reprinEed in S.Rep. No.97-4L7 at

I70-7I. Absent a record suggesting that voting discriminaEion

permeates t,he entire nat,ion, Ehe SenaEe Subcommi t,t,ee on the

Constitution mainE,ained that the sweeping reforms contemplated by

S 2 could not be descr ibed as remedial ih characEer, and were

consequently beyond Ehe scope clE congressional enforcement

powers. Id. at I71. Accord, Note, Amending Sect,ion 2 oE t,he

Hart,ford, Racial Vote
(EooEnoEes omiEEed).

DiIution,

57

50 Geo.Wash. L. Rev. at 7 48



voting Rig[ts Act of 1955, 32 Case w.Res.L.Rev. 500 (1982). sE.
RooerE u. Lodqe, 102 S.Ct. at 3283 (Stevens, J., dissenting)

(emphasis added) (rNor, in my oplnlon, could there be any doubt

abouE the constiEutionalit,y of an amendment to the Voting Rights

Act thaE would require . o . .ryg Jririsdlctions to abandon the

specific kinds of at-large voting schemes t,hat, perpetuaEe pasE

discrimination.').
As the SenaEe Judiciary Comnlttee point,ed out, however, the

S 5 analogy "overlooks the fundamental dlEference in the degree

of jurisdlction needed Eo gustaln Ehe extraordinary nature of

preclearancer or1 the one hand, and Ehe use of a particular legal
standard to .prove discriminatlon in court suits on Ehe other."
S.Rep. No. g7-4L7 at, 42. See Vance v. Terrazas , q44 U.S. ZSIZ,

265-65 (1980). Nor do Ehe critics take into consideration the

!{ltchell courtrs declaration of Ehe constitutionality of S 2 of

the Voting Rights Act amendments oE 1970, striking down liEeracy

lesEs and devices in both covered and noncovered jurisdicEions.

Whatever Eheir disagreement on other issues, Ehe members of the

Court unanlmously endorsed the llteracy test provision.29

29. Oreqon v. MitcheIL, 400 U.S. at I3t-34 (majoriEy opinion,
autho . at 144-47 (Douglas ,.J.-, eonLuriing i;part and dissent,ing in part); id. at 2L6-L7 (Harlan , J.,
concurring in parE and dissenting in part); id. at 233-36
(Brennan, White and MarshalI, J.J., dissenting in part and
concurring in part); id. at 281-84 (Stewart, J., . concurring in
Part, and dissenting in-part). Justice Harlan remarked:

(footnote continued)

58



rn thq .flnal analysis, the self-llnittng character of s 2

eftectlvcly refuteE Ehe overbreadth argunent. Stnce this statute
does not lnpose' an absolute ban on speeiftc erectlon pract,lces,

or allor ltability Eo attach wiEhouE a ftnding of dllution under

the totallty of circumstances in a gtven case, the fear that S'2
r11l preclpitate a nationwide revlsion oE state elect,ton laws is
groundless. Only a state law shown to discrirnlnatorily impact

against ninorlty voEers will run afoul of S 2.

Federalisn concerns expounded by S 2 opponents, !8, ".o.!
128 cong. Ree. s6786 (daily ed., June 15, Lgg2, remarks of
Senator Harry Byrd) ; jlll. at S6517 (datly ed. r June g, 19g2)

(renarks oE Senator Hatch), and relterated by defendants herein,
are closely related Eo Ehe separation of powers quesEion.

Defendants suggest t,hat S 2 contravenes the princlple of state
soverelgnty enshrined in Ehe TenEh Anendment, which precludes

_ DespiEe Ehe lack of evidence of specific
insEances of discr iminatory application orefEest, Congress could have de&rmined EhaEracial prejudice is prevalent throughout EheNation, and Ehat, liEeracy t,esEs unduly lend
t,hemselves to d iscr imlnatory appliCation,
eicher conscious or unconscious. itris dangerof vtolatlon of S 2 was sufficient !oauthorize the exercise of congressionalpower. The danger of violatlon of S t of theFifEeenth AmendmenE was sufficient to
author i ze Ehe exerc i.se oE congress ional power
under S 2.

rd. at 2L6 (tlarran, J., concurri.ng in part and .dissenting in
part) (foot,notes omiEted).

<o



Congress f5gro wielding it,s leglslative Power to inpalr the

Statesr freedom to structure integral operations in areas of

traditlonal governmental funcEions. National Leaque of Cities v.

gg.g,ri, 426 u.S. 833 (1976) (Fair Labor Standards Act, a Commerce

Clause enactment,, held unconsE,it,utional as applied to stat,e

employees). Usery explicitty declined to entertain the question

oE whether dif,f erent result,s might obEaln . were Congress to

encroach upon i.ntegral operat,ions oE staEe governments through

the exerclse of authority conferred by S 5 of the Eourteenth

anendnent. See ClEv of Rcime v. Unlted StaEes, 446 U.S. at

r78-79.

In South Carolina v. KaEzeobach, the Court ruled thaE

Congress [dy, as againsE Ehe reserved Powers of the state,

util i ze any rational lneans to implemenL t,he F i E teent,h

Amendment. Justlce uarshall subsequently rejected a federalism

argument predicated on ggg., explaining that:

. . . principles of federalism Ehat, mighE
otherwlse be an obstacle Eo congressional
aut,hority are necessar ily overridden by the
pocer to enforce the Civil War Anendments "by
appropriate legisIaEion." lhose Amendnents
were speciEically designed as an expansion of
federal power and an intruslon on state
sovereignty. Applying this prlnclple, we hold
that Congress had Ehe auE,hor iEy Eo regulate
sLate and local voting Eh'rough the Provisions
of the Vot,ing Right,s Act. National Leaque of
Cities, then, provides rro reason to depart
Erom our declsion in South Carolina v.
KaEzenbach that "the Fffi
supersedes contrary exert,ions oE staEe powerr'
. . . and Ehat, the Act is an appropriat,e means

50



Eor carrylng ouE Congress I constit,utlonal
reBponsibllties. . . .

Clty ol_Rerae_!_. lInited States, 446 U.S. at 179-80 (citaEtons and

footnotes omit,ted). @!, , 127 U.S. {45

(1976) (S 5 of the FourteenEh AmendmenB overcomes state Eleventh

Amendment imnunity). Citv of Rome Eherefore teaches that the

tenth Lrnendment does not, constrict congressional power to enforce

Ehe Reconst,ruction anendnents by appropriate legislation. See

Hodel v. Virqlnia Surface !{ininq t Reclamation Assin, 452 U.S.

264, 287 n.28 (198f) (dicta). Glven our conclusion that S 2 ig
an appropriate expression of 

"ongr"r"tonal 
enforcenent authoriEy,

we are persuaded EhaE this measure does not work an

unconstlt,utional abrogat,ion of powers allocated Eo Ehe stat,es by

Ehe Tenth emendment.

B. Application of AcE 20

Congressional dist,r icts may be equal et t as here,

substantially equal in populaEion, yet fail to secure fair and

effective .represenEation Eor all voters. Through Ehe

cartographic Eechnique known as gerrymanderingr 30 a polit,ically

30.'Gerrymandering' refers to "discriminaEory disE,ricting which
opera:as unEairly Eo lnElate the poliEical sErength of one group
and de,flate EhaE oE another." R. Dixon, The Court, the People
and 'One Man, One Vote r " in ReapportionmenE in t,he 1970s 7 (N.
Polsby, €d. I971) . Dr . Engst,rom def ines t,he "equipopulousgerrynander'as "disErlcEing EhaE saEisfies the one person, one
votd requirement yeE is discriminatory toward an ident,iEiable
(footnote conEinued)

6I



doninanE glo.up is able to manipulate district lines wichin the

constrainEs of Artlcle I, I 2, so as "to minimize or cancel out

the votlng strengEh of raclal or polltical elements of the voting

populatiotl.' Fortson v. Dorsev , 37.9 U.S. 433, 439 (1965) . See

Gaffnev v. Cumminqs, 4L2 U.S. 735 (1973); White v. Reqester , 4Lz

U.S. 755 (1973). The amended 5 2, Congressr response to the

conElnuing c€ncern oeer the ext,ent, oE minorlEy partlclpation in

the electoral process, provldes a formidable vehicle for
redresslng vote dilution clalms. 

:

Pursuant Eo arnended S 2, a complainant has the opt,ion of

elt,her proving a discr iminatory purpose in the adoption or

rnaintenance of an electoral sEructure or pracEice r oE

denonstratlng, 'based on the totality oE circumstancesr. Ehat the

Etructure or practice resulEs.in a dllution oE minority voEing

power. 42 U.S.C. S I973b. See Cltv oE Lockhart v. UniEed

$ , U.S. _, 103 S.CE.998, 1004 (f983) (Marshall,

J. I concurring); Buchanan v. CiEy oE Jaekson; Rvbicki v. Slate

Board of Electlons. Listed in the senaEe ReporE are several

group of voters.i Engst,rom, The Supreme Court and Equipopulous
Gerrynanderlng: A Remaining Obstacle ln the QuesE for Fair and
Effectlve RepresenEation, 1976 Ariz. State L.J. 277, 278 n.5.
Justice Stcvens recently warned EhaE slavish judicial adherence
to the goal of perfect population equaliEy is "'perfecEly
comPatib:,e with gerrlrmandering of the worst s.l(t,. r i Karcher v.
Daqqett, _ u.s. , 103 s.ct. 2653, 26 t t (I983)1ffi;i5;
J., concurring) (quoEinq Erom Wells v. RoqkeEeLler, 394 U.S. 342,
55i (1969) lHirra t 2853 (whir,e,
J., dissenting, joined by Burger, C.J., and Rehnquist and Powell,
J.J. ) ; 1!.5! aE 2869 (Powell , J., dissenEing) .

62



obJcctlvc faccors, drarn

ucrclthen, lbs P.2d L297

other qrounds sub nor!.

fron Wtrlte v. Reqester and Zinrner v.

(5th Ctr. 1973) (en banc), affrd on

East Carroll Parlsh School Board v.

Marshall, 424 U.S. 636 (1975) (Per curlan), whlch court may

evaluate ln applytng S 2's rEotality of clrcunstances' trist:
1. the extent of, any hlstory of offlcial

discrtnination ln the staEe or poltt,lcal
subdlvl,sion Ehat touched the rtght of the
nenbers of the ninorlty group to reglsterr to
voter or otherwlse to partlclpatc ln the
denocratic processl

2. the extent to rhtch votlng ln the
elections of Eh'e state or pof tElcal
subdlvlston ls raclally polarlzed ?

3. the extent to whlch the state oE
politlqal subdivlslon has used unusually large
electlon d lstr icts r rilJor Lty vote
requireraentsr E[tl-etngle shot provislons, or
other voEing practicee or procedures that nay
enhance Ehat, opporEunlty for dlscrlnlnatlon
against the minorlEy groupi

4. if there ls a candidate slatlng
process, wheEher the neobers of the rainority
group have been denied access Eo that processi

5. Ehe exEent to which meruberE of the
ninority group in Ehe state or polltlcal
subdi.ulston bear the effects of dlscrinlnation
ln such areas aE educaEion, enploynent and
health, whlch hlnder thelr abiltty to
partlctpate ef f ectively ln the pollt,lcal
Process i

6. wheEhcr poliEical carnpaigns have been
characterized by overt or subtle raclal
appeals;

7. the extenE Eo which members of Ehe
oinority group have been elected to ptiUtic
office in the jurisdiction.

63



t .," ouflutt"T.Lo"tli,lS'",iii: tL ""3:..""'3i
plaintifEsr evidence to establish a violatlon
are 3

whether Ehere ls a significant lack
of responsiveness on the part of elected
officials to the partlcularlzed needs of
the nembers of the minority group.

whether the policy underlying the
state or political subdivisionrs use of
such voting quallficaEion, prerequisite
to votlngr oE standard, practice or
procedure is tenuous.

9{hile these enumerated Eactors w111 often :

be the most relevant'ones, in sone cases other
factors will be lndicative of the alleged
d ilution.

S.Rep. No. 97-417 at 28-29 (footnotes omiEted).

No pa{ticular number or arrangement, oE factors
proved as a prerequisit,e Eo recoveryr nor is a plaintiff
to evidence EhaE fits wiEhin the Zimmer-Whlte

need be

limi ted

analytic
framework. To the exEent that t,he enumerated fac!ors are not

factually relevant, Ehey may be replaced or substiEuEed by other,

more meaningful factors. Mindful of Zimmer's command Ehat these

indicia of discrimination are neither exclusive nor controlling,
the Senate Judiclary Comnittee cautioned:

the courEs ordinarily have not used Ehese
factors, nor does Ehe Comnittee inEend Ehem to
be usedr as a mechanical ipoint counEing"
device. The failure of plaintifE Eo establish
any particuLar Eactor, is not rebutEal
evidence of non-dilution. Rather, the
provision tS 2l requires the courtrs overalljudgment,, based on the EotaliEy of

64



clrcunstances and guided by Ehose relevant. faCtors in t,he particular case, of wheEher t,he
voting strengEh of ninority voters ls, tn Ehe
language of Fortson and @, ninlmlzed or
canceled out.

Upon review of the totaliEy of circumstances ln Ehe instant

caser the court is sat,isf led t,hat Ehe plalntlffs have made out, a

prima facie case oE vote dilution under S 2. Evidence of 'past

diserimination cannot, in the manner of original sin, condemn

action Ehat is not in ltse1f unlawfulr' Cltv of I'toblle v. Bolfen,

{45 U.S. at 74, but is releu'anE lnsofar.as it impacts adversely

on a mlnoriEy groupts present opportunitles to participate in
government. We dre persuaded Ehat Ehe deleterious repercussions

of historical discrlmination perslst ln hlndertng Ehe poliEica1

access of mlnorities in orleans Parish.3l
As the Supreme Court comnented in Rogers v. Lodse, L02 S.Ct,.

at 3279, "Ivlotlng along racial Iines allows those elected to

ignore black interests wiEhout fear of polltical consequences,

3I. A causal nexus between the disparate socio-economic staEus
of blacks arising from past discrimination and a depressed level
of rainorlty poliEical partlcipation need not be esEablished.
S. Rep. No. 97-4L7 at, 29 n.l14 (-g v ster and
Kirksey v. Board of Supervisors, 554 F.2d 139 (5th Cir.) r .Sgl3,.E@;-- 41{ 0.S. 958 (f977) ). 'Inequality of access is an
TilEffince wh ich flows f rom t,he existence of economic and
educatlonal inequaliEies.' Kirksev v. Board of Supervisors, 554
F.2d at 145. Plaintif f s have neveitnCteffi in
demons Erat i ng thaE the conLemPor ary e E f ec t,s of Past
discrimination furnish at leasE a partial explanation for the low
black registration and voting apParene in Orleans Parish.

55



and r{tt,hout -bloc voting the

elections solely because of

polarized votlng cannot be

minor ity candidat,es would not lose

their race.' The imporEance oE

underestlrnated, for if it does not

exist,
complaln.

the ninority voEer "has llt,tle reason to

United Jewish Orqanization v. Carey, 430 U.-S.

I44, I66 n.24 (1977). See Lodqe v. Buxton,639 F.2d f358 (5Eh

Clr. 1981), aff rd sub nom. Roqers v. Lodqe, _ U.S. _, 102

S.Ct. 1272 (1981). A consisEently high degree oE electoral
polarization in Orleans Parlsh was proven Ehrough b"a!

sEatlstlcal and anecdotal evldence. Partlcularly as enhanced by

Loulsianars ilajorlty vote requirement,r32 racial bloc voting

subst,antially impairs Ehe ability of black voters ln this parish

to become fully lnvolved in the democratic process. That several

32. Severely criEicized for its Eendency 'Eo submerge racial
minoriEies,@,t,hemajorit,yvoterequiremenE:

l,; '"liunlllli" " 
"i'.?-"ii""ti5.t.ton i.""?"T t::

candidaEe receives a majority in Ehe Eirst
election. The run-off allows white voters who
scattered Eheir votes among various white
candidat,es ln the first election to
consolldate Eheir vote in the second to defeat
a minorlty candidaEe who received a plurality
of the vote in t,he Eirst election.

Note, Racial Vote DiIuEion in Multimember DisEricts: The
Constitutional SEandard aEter Washinqton v. Davis, 75 Mich.L.Rev.
694, 697 (1978). For obvious reasons, Ehe inability oE
minor it,ies to Eorn coalit,ions or to otherwise inEluence other
groups due Eo polarization is exacerbat,ed by the majority vote
requirement.

56



black candidates, among Ehem t'layor Morial, have won office in

Orleans Parish does not Eoreclose a finding of dilution. See

S.Rep. No. 97-4L7 at 29 n.I15; Cegpbe[ v. Gadsen County School

Boardi Zimrner v. McKeithen. Considering the parish's 55t black

populat,ion, the l5t success rat,e of black candidat,es at the polls

is substantially lower than mighE be anticipated absent such

impediments to brack voting and regisEration as the ringering

ramifications oE historic disenEranchisemenE conjoined with pasE

and presenE dispariEies in education, income, employment and.

housing. Professor Hendersonrs analysis of voEing paEEerns in

Orleans Parish shows that Ehe victories of blacks in municipal,

parish and state represenEaEive or senate contesEs can be

ascribed in major Part, to racial bloc voting and some cross-over

voEing by a unique enclave of Iiberal whites. If AcE 20rs

sundering of Ehe black populace of New Orleans were allowed to
st,and, t,he effecEive independenE impact of black voEers would be

unfairly and iIIegaIIy minimized.

A t,enuous sEate policy support ive oE a parL icular
districting scheme is probaEive of Ehe question of the fairness
or the unfairness of that schemers impact on minoriEy voters.

S. Rep. No. 97-4L7 at 29, Departures Erom t,he normal procedural

sequence, ot the specif ic chain of event,s leading up to a

particular Iegislative decision, bear on the weighE t,o be

accorded the state policy underlying a particular vot,ing system

67



or practlce... See ld. See also Karcher v. Daqqettr _ U.S.

_, f03 S.Ct. 2863 (1983) (SEevens, J., concurring). Af ter
extensive public hearings and consultations with staff counsel,

commi Etees of both houses of the leg lslature formulat,ed a

reapPortionmenE policy Eailored Eo maximize black voting strength

wiEhin one of Louisiana's eight congressional districts. to'
lnplemenE Ehis benignr rElc€-conscious policy, the legislature,
t,hrough i ts joint commi t,tee, promulgated a set of neutral

reaPportionment criteria which culminaEed tn the preparation 
"nq

bicaneral approval of the Nunez Plan.33

33. It is well-established that a legislat,lve body may consider
race in drawing district llneEr so long as tt does not
discr ininate invidiously or contravene Ehe one personr/one voteprecept. E FuIIiIove v. KluEznick, 448 U.S. aE 483 (". . . a
stace- may fr'F-lo - 

are reasonably necessary to
assure compliance wiEh Eederal voting rlghts legislat,ion, even
Ehough Ehe stat,e action does noE entall Ehe renedy oE a

of
Jury, 6J5 F.Zct II5I (5Eh Cir. I9El); Marffi gzt (5rh Cir. t97B ) , cerr. @!gl, -[:[
-@., Ehe Court made it clear t,hat LegislaEures may
racially proporEionaLe redistr icting :

'[Clourts have Ino] constit,utional warrant Eo
invalidate a staEe plan , otherwise wi t,h in
tolerable populat,ion limits, 'because it
undertakes, not, Eo minimize or eliminate Che
poliEical strengEh of any group or party, but' to recognize it and, t,hrough discr ict,ing,

...1 provide a rough sort oE proportional
I representat,ion in Ehe legislative halls oE Ehe

S Eate. "

{30 U.S. at I58 (quot,inq from GafEnev v. Cumminqs, 4L2 U.S. at
7121. See Note, Group Regresentation -ind 

-Race-Conscious(Eootnote ETtinued)

constltutional violaEionn);

ards

58



the Louisiana Legislaturers policy, whlch would have

nalntalned Ner Orleansr black comrnunity wlEhln one district, and

virt,ually all neuEral apPorElonment guldelines, were abrupt,ly

discarded ln the Eace of Ehe Governorrs veto threat. No cohesive

goals . replaced the abandoned pollcy. Further, rather than

utllizing the routine mechanism of Ehe conference commiEtee

Eollowlng t,he llouse I s wiEhdrawal of its approval of the Nunez

PIan, the legislative leaders convened a prlvate meeEing to seek

a solution whlch would satisfy the Governor and the Jeffersoq

Parish forces. Because all were aware that, the confllctinE

obJectlves of Ehe Governor and black legislators wiEh respect Eo

a black majortty district could noE be harnonlzed, the IaEter

were dellberat,eIy excluded from Ehe final decision-making

Process.

Physical evtdence of raclal gertlrmandering may itself
furnish strong, objective proof of vote dlIuE,lon. Rvbicki v.

St,ate Board oE Elections; Adams, a |ttodel SEaEe Reapportionment

Process: The Continuing QuesE for "Pair and EEfective

RepresenEaEionr' l4 IIarv.J.Leg . 825 (1977) . Minority voting

st,rength nay be .dissipated Ehrough one of two Eamiliar

gerrlrmander ing Eechniques: 'stacking, " or the overconcent,raEion

of members nr: a specific group in numbers greatly in excess of

Apportionment,: The Roles of SEates and Ehe Federal Courts, 9l
Harv.L.Rev.' I847 (1978) .

69



t,he percentage required to exercise a aeaningful cholce at Ehe

ballot box, or "crackingr" the dlvislon of a cohesive populaElon

concent,ration. @, 103 S.Ct. aE 2672 n.l3

(St,evens, J., concurring); NeveEt v. Sides , 37L F.2d at 2L9i R.

Morrillr Political Redistricting and Geographic Theory at 14-15,

t9-20 G981) . See also United Jewish Orqanizations, Inc. v.

Carey, 430 U.S. at 158.. When a redistricting plan employs the

lat,ter Eechnique in a raclally polartzed envlronment, the result

is predictabler 
,

Like a multimember' plan, Ia single-member
dl,stricE plan whlch frictures a geogiaphically
concent,rat,ed minorit,y voting populaLlont . . .
tends to dilute Ehe voting sErength of Ehe
minority. In Robinson v. Comnlssloner I s
@!, 9!lPI3, a panel of this court noted that-'TFe most crucial and precise instrumenE

of the . . . denial, of the black
minorit,y's equal access to politlcal
participation, however, remains Ehe
gerrlnoander of precinct llnes so as to
Eragment what, could otherwise be a
cohesive mi nor i t,y voting
communiEy. . . This dismemberment of
the black voting communit,y . . . [may
havel tne . . . effect oE debilitatlng
Ehe organizat,ion and decreasing the
participation of black voters.n

Kirksev v. Board of , 554 F.2d 1.39, 149 (5th Cir. ) ,

. 1!g!$!, 434 U. s. 968 1L977 ) (guo,!.ing. f rom Robertson v.

Commissioner I s Court, 505 E . 2d 674, 679 (5t,h Cir. f 974) . See

also CarsEens v. Lamm, 543 F.SuPp. 68, 62' (o.Co1o. 1982)

(t,hree-judge court) (". . . a redistr icting plan . . . should not

EracEure a natural racial or ethnic communiEy. . . .n).

70



Act 20f s. Jagged line dlEsect,s a large concentrated community

oE black voters residlng in Orleans Parish, dispersing Ehat

cornnunity into the First, and Second Congressional Districts.34

With unerring Preclsion, Ehls llne sllces Ehrough the CiEy's

tradiElonal political subunit, the ward, in a racially selective

manner, leaving inE,act predominantly white wards while carving uP

t,hose densely populated by blacks. Ilomogeneous black precincts

are separated; white precincts are not. RaciaI divislons have

been preserved at the exPenEe of parlsh boundaries35 and respect

34. Exper E test iroony of Dr . Ilenderson establ lshes Ehat these
dlstr Lcts do not comply ,wit,h the generally accePted
reapportionment requirenent of 'compactness.' ShaP€r a
subconponent of Ehat requlrement, see Karchqr v. Daqqet!, 1.03

S.Ct,. bt 2872-73 (Sfevens, J., concurrlng) , is one criterion by
whlch district conEours may be judged in a gerrymandering case.
Id; Engstrom, The Supreme Court and Eguipopulous Gerrymander
EtA, Arlz.SE.L.J. at 280; Reock, tteasurlng Compactness as a
Requiremen! of Legislative APPortionment, 5 Midwest J.PoIi.Sci.
7O; 7I (197I). Justice Stevens nonetheLess cauEions against
exclusive reliance upon odd or torEured configurat,ions. 51
U.S.L.w. at, 4853 n. L5. As Dr. Engstron Points out,
'preoccupation with shapes may simply 'confuse Eorm wiEh
Eunction, t as relaEively symnet,r ical, comPact, distr icts may
effectively di.Iute a grouPrs voting strength. - . .n I976
Ariz.St.L.J. at 280 (-gg!.ig. frgm R. Dixon, Democratic
Regresentation: ReappoiEfonnrent -Tn Law and Politics 459
(l-968) ). While acknowledging Ehis concern, Professor Morrill is
de the opinion that a conpactness measure Provides _an efficacious
def ense - against gerrymandering. R. t'torr iII, PoIitical
Redistricting and Geographic Theory at 2L. IE is imPortanE to
note, however, Ehat comPactness is nOt demanded !V federal law.
Cerslens v. Lamm; Sko].nick. v.. State ,@, 336 F.Supp.
ffir)@ourcT.
35. Another non-constitut,ional restraint, imgosed on
carEographers is Ehe principle that, district, lines must be drawn
Eo coinclde with governmental units such as Ehe parish, ward or
(footnote continued)

7t

Carstens v.



for Ehe in-tegriE,y of a natural geographic barrier, the

Mlssissippi Rlver.36 Discordant cornrnunitieE of interest, those

of New Orleansr older, urban core and its surrounding suburban

neighborhoods, are jolned.37 Drs. Ilenderson and Engstrom both

precinct. E R. It{orr111, Politlcal Redistricting and Geographic
theory at 25-1'. o . use of poliEical entities [erects] . a
slgnlficant barrier to gerrynandering whether for racial or
partisan political reasons, since iE prevenEs stringing togeEher
precincts of a particular characEer out of disparaEe polit,ical
units" ) . ilndlscr iminat,e disEr ictlng, wlEhout any regard Eorpolltical subdlvision . . . lines r rtrily be llEt1e more than an
ogen lnvlta-tlon to partisan gerrl4mandering.' Reynolds v. Sims,
377 U.S. 533, 578'-79 (1954); Anerican Bar es@
Commlltee on Election Law and Voter Particlpationl Congressional
Redistricting at L2 (198I) (Unnecessary disruption of these uniE,s
not only 'undermines t,he abtllty of const,iEuencies Eo organize'
eEfectively buE also . . . tncreases Ehe likelihood of voter
confuslon regarding oEher elections based on poliEical
subdivislon geographics.' ) .

35. A planrs divergence from naEural physlcal features, which
tend Eo lnject some regularity in district conf.iguraElonsr nEy,
absent a legltinate justification such as adherence to the one
person,/one vote concept, violaEe Ehe compactness requirement.
See testimony of Dr. Gordon Henderson, Record, VoI. I at
t0l-06. Here, t,he !tississippi is significanE insofar as it
aEfects Persons residing on either bank. Orleans Parish's inner
city blacks, separated f rorn Jef f erson Parish by Ehe river,
possess far different concerns Erom Ehe suburban whites who dwell
in the latter.
37. By way of explanaEion of the significance of this
apportionoent criterion, Morrill observess

Citizens vote, in parE, according Eo
their ident i E icaEion wi th var tous
interests, for example, religious values,
occupat,ion, class, or rural or urban
or ientat,ion. lhere is a strong bas is in
ar gui ng t,hat "e f f ect ive rep resenEat ion" or
influence on the outcome is enhanced by
grouping of like int,erests toget,her. . o

This is constitutionally required only with
(footnote cont,inued)

72



testified !!"t when coupled with the phenomenon of racially
polarlzed voting, thls combination of factors operated to
mlnimize, cancel or dilute black uoting strength.

rn the course of our analysis, we are not unmindful of the

legitirnate debaEe among academics and courts about the relative
merits of concentrat,lng a minority population wlthin one district
or dividing that populaEion into two or more districts so that it
exerts a substantial lnfluence in each.38 We are convinced that

respect to race. the geographer tllll also :

observe that dlstrlcts whlch correspond
Somewhat, to nodal reglons, a core urban area
and lts econonic or cultural hinderland unlted
by transportion and cornnunlcatlons, wlll have
a greater sense of unlty, awareness of conmon
problems, and, perhaps, participation thandlstrlcts which arbitrarlly corobine disparaEe
areas and lgnore paEterns of regional ldentlty
and loyalty.

R. uorrill, Polltical RedisErlcting and Geographtc Theory at23. See also Busbee v. Smith, 549 F.Supp. 494 (D.D.C. 1982)(rhree!fidg?Eou@ u.s:' , ior s.cr. 8oi(I983); CarsEens v. Lamm, (Ehree-judge courEffpreservation ofenElrec@ctEaci1iiatLdvoterid!ntiEy);again,
this criterion is not prescribed by Eederal staEutory or
constitutlonal Law. See id.

38. E, €. e. I S€
(Ehree-judge court('. . . [Elhere ls no aaieemenE on ther the political
lnteresEs of a mlnority group are best maxinlzed by an
overwhelning majority in a single dlstrict, are maJorities in
more than one district or a substantlal proportion of Ehe voters

- - - ;?-?.1"'1?T 8j,Sl;:'L;i" l:,(citing -v-arlous cornmenEaEors) . Compare Jordan v. winter, 541---F.supp.1I35,II43(N.D.!{iss.r982TJE57eefficated
and remanded for furt

, 536 F.S . 931 , 949 (E.D.Tex. )
455 u.s.37 (1982)

liqht of am ,

(footnote cont,inued)
ve Prelerence or two



in the presenE case, the division of Ehe black population was noE

designed to enhance Ehe eEfectiveness of the black electorate,

nor ls iE llke1y to occasion such.

Appllcation of amended S 2's "resulEs" test to Ehe aggregate

of the facts adduced at trial, lncluding Louisianats history of

dtscriminatlon and the impact of that history on Ehe present

ability of bracks in orleans Parish to join ln the poriEicar
procesEr t,he vestiges of discriminatlon whlch take the Eorm of a

marked disparlty ln the socio-econonic conditions under which

blacks and rhlEes currentiy subsist, the parishis racially
polarlzed vot,ingr :ts exacerbaEed by the staters majority voEe

requlrenent, Ehe tenuousness of the state policy underrying Act

20 and the history of its enactmenE, and the roanipulaEion of
district boundary Iines so as to Eracture a cohesive minorit,y

minority {istricts .wlth at leaEE 40t popuration expressed, court,
found no constitutional or f ederal sEatutory bar EhereEo) wi t,h
Kirksev v. Board oE supervisors, 554 F.2d aE r50 (emphasis in Ehe
or iginal) (nWhere Ehe cohesi,ve black voting strengt,h is
fragmented among districEs, Ievenl Ehe presence oE disErisEs with
bare black population maioriEies not only does not necessarily
preclude dilaET6ffiE .-T-mctually inhance rhe possibilir|
of continued minority pollEical impotenc€.")i Eartford, Racial
Vote Oilution and Separation of Powers, 50 Geo.Wash.L.Rev. at 695(". . . the argunent, EhaE Ehe position oE the roinorlty is
necessarily enhanced by an opportunity for'coaliEion building"
It,hrough a disEricting plan thaE disperses their votes among
severa.l disEr icts I is dis ingenuous, to say the least, when made
in reference to a locale with well-estabtished paEterns oE racial
division and racial bloc voting where Ehe minor it,y has
systematically been submerged and ignored.') ; Not,e,
Consticutional Challenges Eo Gerrymanders, 45 U.Chi.L.Rev. 845,
845 (f978) (split,t,ing a voting group among several districts may
have the effect oE diluting the political power oE Ehat group).

74



voting bloc., preponderates in Eavor of the plainEiffs.

Clrcumstantial evidence that race played a role in the confection

of Act 20 also figures in the courtrs calculus, although we have

not engaged in t,he intent analysis permiEted by S 2.39 Based on

the totality oE relevanE circumstances, therefore, the courE

concludes t,hat, Ehe contours of the First and Second Congressional

Districtsr ES est,ablished by Act 20, operaEe Eo deny or abridge

Ehe right,s of minority voters, who are accorded less opportunity

than other members of Ehe electorate to participate in th9

political process and to elect representaEives of their choice.

DefendanEsr showing Ehat polit,ical motivations were the

primary impetus behind the configurat,ion of Ehe FirsE and Second

Distr icEs does noE, provide persuasive rebuttal evidence of

nondilution. We agree t,hat leg islaEors do not operate in a

vacuumi hencer pdEtisan politics cannoE realistically be divorced

from any redisEricEing effort. See Gaffnev v. Cumminqs, 412 U.S.

at 753i fn re: Pennsvlvania Conqressional Distr icEs

Reapportionment Cases, Civil Action No. 82-0L97, slip op. at

23a-24a (U.D.Pa. 1982), aff 'd mem. sub nom. Simon v. Davis, 5l

39. Given our conclusion Ehat Act 20 resulEs in a dilution of
black voting strength, w€ need noE draw Ehe ult,imaEe inference of
purposeEul discrimination from: Ehe composit,e of Eactors
heretofore ouEIined. The courc. has nevertheless Eaken into
account, r EIs but one aspect of t,he Eotali Ey of circumstances, the
evidence that opposition Eo Ehe creaEion of majoriEy black
dist,r ict was responsible, to a signif icant extent, for t,he def eat,
of Ehe Nunez PIan and Ehe substitution of Act 20.

75



U.S.L.l{. 39?7 (U.S.S.CE., July 7, 1983). the Protection oE

exlsting telationships among incunbents and their constituents,

and the benefits accrulng to the state from Ehe seniorlty its
delegation tuay have achieved in Congress, are pragmaEic

consideraEions whlch ofEen flgure pronlnently in the drawing of

cong resslonal d I s t,r icts . these considerations are not

tallsmanic, however, and may not Eerve to protect incumbents by

imposing an electoral scheme which spllnEers a geographically

concentrat,ed black populace withln a raci.ally polarized parish,

t,hus nininizlng the black ciEizenryrs electoral participation.
Nor do ot,her f actors invoked by def endants overcone

plaintlEfst prima facie showing. Reliance on New Orleanst

tradit,ion of dual congressional represenEat,ion can no longer be

just,ified in light of the City's subsEantial decline in
populaEion. Nor is there credible denographlc evidence that the

black population of either t,he First or Second DisEricts will
increase to a signlficant degree over Ehe next decade.

Accordingly, the court is oE Ehe opinion EhaE plaintiffs are

entitled to judgment on Eheir voting dilution claim.

C. Remedv

IIav ing deEermined Ehat, Act 20 does not,, in respect Eo t,he

Birst and Second Congressional Dist,ricts, comply with the mandate

of arirended S 2 of the Voting Rights Act, oE 1965, judgment will be

76



entered dec.larlng AcE 20 violatlve of federal law and enjoining

Ehe detendants froo conductlng elections pursuant to its t,ermE.

Recognlztng that rstate leglslatureE have rprinary Jurlsdictionl
over1egis1at1vereapport1onnent,.@'4L2u.s.783,
793 (1973), we sha[ tenporarlly defer further acEion in order to
provide the Loulslana Leglslature with a reasonable opportunlty

to act wlthin federal sEatuEory and constlEutlonal limits and

enact a valld new plan for the election of ruembers to the United

SEates House of Representat,lveE.40 Once a court declares alt

exlstlng legislatlve reapportlonment scheme unlawful, it ls

"appropriate, whenever practlcable, to afford a reasonable

opgnrtunity for the leglslature to meet constltutional Ior

federal.statutoryl requirenents by adopting a substit,ute measurb

rather than for Ehe federal court to devise and order into effect
its own plan. r 9{ise v. Lipscomb , 437 U.S. 535, 540 (1978) . See

+ McDaniel v. Sanchez, 452 U.S. 130 (1981); @,
431 U.S. 407 (1977); Flateau v. Anderson, 537 F.Supp. 257

(S.D.N.Y. I982) (three-judge court) , Sg!. gi5g., I03 s.ct. 5

(I983). the flllng period for congressional candidaEes will be

during the summer of 1984. Thus, there 'is anple ttme for the

legislaEure Eo meeE and conslder a new redistrieting scheme.

{0. DeEendants urged Ehts alternat,ive during oral argument,
requesting that in Ehe event oE Act 20's invalidation, Ehe court
forego the imposit,ion of a judicially-construcEed plan and permit
the legislature to at,tempt Ehe confection of a new plan.

77



Should. the legislaEure, or the Governor, choose not to act,

we shall acquit, our reEponsibillty to develop and implement a

remedial plan. Accordingly, defendants are lnvit,ed to present Eo

Ehis courtr- on or -before January 31, 1984, a duly-enacEed

legislltlve plan. This court will reconvene on Eebruary 6, 1984

Eo enEertain Ehe partiesr suggestions for congressional

districting. In the absence oE an acceptable Legislat,ive

solut,ion, the courE will Eashion an appropriate plan.

Considerat,ion of plainEiffsI requesE for attorneysr fees 
"n?

costs shall be deferred until adoption of an approprlaEe remedy..

Counsel shall prompt,ly prepare and present, tg the court a

judgnent consist,ent with this memorandum opinion.

IT IS SO ORDERED.

78



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