Reno v. Bossier Parish School Board Brief for Federal Appellant

    Nos. 98-405 and 98-406

3fit tfjt Supreme Court of tjje ®niteb g>tate£
Oc to b er  T e r m , 1998

J a n e t  R e n o , A t t o r n e y  Ge n e r a l , a pp e l l a n t

v.

Bo s s ie r  P a r ish  School  B oard

G e o r g e  P r ic e , e t  a l ., a p p e l l a n t s

v.

Bo s s ie r  P a r ish  S chool  Board

ON APPEALS FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA

BRIEF FOR THE FEDERAL APPELLANT

Seth P. Waxman 
Solicitor General 

Counsel of Record 
Bill Lann Lee 

Acting Assistant Attorney 
General

Barbara D. Underwood 
Deputy Solicitor General 

Paul R.Q. wolfson 
Assistant to the Solicitor 

General
Mark L. Gross 
Louis E. Pf.raertz 

Attorneys
Department of Justice 
Washington, D C. 20530-0001 
(202) 51)-2217



QUESTION PRESENTED
Whether the district court erred in concluding that, 

because Bossier Parish School Board’s 1992 redistrict­
ing plan was not enacted with a retrogressive purpose 
it was not enacted with “the purpose * * * of denying 
or abridging the right to vote on account of race'” 
whhm the meaning of Section 5 of the Voting Rights 
Act of 1965,42 U.S.C. 1973c. g

(I)



TABLE OF CONTENTS
Page

Opinions below ......................................................................  l
Jurisdiction............................................................................  l
Constitutional and statutory provisions involved ................  2
Statement..............................................................................  2
Summary of argument........................................................... 15
Argument:

Because Bossier Parish School Board’s 1992 re­
districting plan was enacted with an unconstitu­
tional, racially discriminatory purpose, the district 
court erred in preclearing that p lan ................................. 18
A. Section 5 of the Voting Rights Act of 1965 bars 

preclearance of a voting change enacted with 
an unconstitutional, racially discriminatory 
purpose, whether or not the change was also 
intended to make the position of minorities
worse than before the change was enacted ............. 18
1. Congress intended Section 5 to bar 

implementation of unconstitutional voting
changes enacted by covered jurisdictions ........  18

2. This Court has construed Section 5 to bar 
voting changes with a discriminatory, but
not retrogressive, purpose ................................ 24

3. The Attorney General’s construction of
Section 5 is entitled to deference ......................  32

B. Bossier Parish School Board’s 1992 redistricting
plan was enacted with an unconstitutional, racially 
discriminatory purpose............................................  33

1. Proper analysis of the Board’s adoption of 
the 1992 plan under the Arlington Heights 
framework shows that the Board had a 
discriminatory purpose .....................................  33

a. Historical background...........................  34
b. Sequence of events leading up to the

decision...................................    36

(III)



IV

Table of Contents—Continued: Page

c. Dilutive impact of the plan .................... 38
d. Contemporaneous statem ents..............  40

2. To the extent the district court may have
ruled that the Board acted without a dis­
criminatory purpose, that conclusion cannot
be sustained........................................................  41

Conclusion.............................................................................  47
Appendix ............................................................................... j a

TABLE OF AUTHORITIES

Cases:

Allen v. State Bd. of Elections, 393 U.S. 544
(1969)..............................................................................  18

Beer v. United States, 425 U.S. 130(1976)...............  n  28,
29,30

Bose Corp. v. Consumers Union of United States,
Inc., 466 U.S. 485 (1984)................................................  45

Broum v. Board of Educ., 347 U.S. 483 (1954) ................ 3 3 5
Busbee v. Smith, 549 F. Supp. 494 (D.D.C. 1982),

aff’d, 459 U.S. 1166 (1983)..........................................  27,28
City of Lockhart v. United States, 460 U.S. 125

(1983).............................................................................. 26
City of Pleasant Grove v. United States, 479 U.S.

462 (1987)..........................................................  24,25,26, 46
City of Port Arthur v. United States, 459 U.S. 159

(1982).............................................................................. 27
City of Richmond v. United States, 422 U.S. 358

(1975)................................................................  26, 27,28, 32
City of Rome v. United States, 446 U.S. 156 

(1980) 19, 30, 33

V

Cases—Continued: Page
Dougherty County Bd. of Educ. v. White,

439 U.S. 32 (1978)...........................................................  33
Georgia v. United States, 411 U.S. 526 (1973)...............  18
Gomillion v. Lightfoot, 364 U.S. 339 (1960)...................  19-20
Lemon v. Bossier Parish Sch. Bd., 240 F.

Supp. 709 (W.D. La. 1965), aff’d, 370 F.2d 847
(5th Cir.), cert, denied, 388 U.S. 911 (1967) ...................  3

Lopez v. Monterey County, 119 S. Ct. 693 (1999)..........  30,
31,32,33

Perkins v. Matthews, 400 U.S. 379 (1971)...................... 21
Reno v. Bossier Parish Sch. Bd., 517 U.S.

1154(1996)......................................................................  5
Rogers v. Lodge, 458 U.S. 613 (1982)..............  19,31,33,

36,40
Sanchez v. Colorado, 97 F.3d 1303 (10th Cir. 1996),

cert, denied, 520 U.S. 1229 (1997)..................................  43
Schneiderman v. Uyiited States, 320 U.S. 118

(1943)..............................................................................  43
Shaw v. Reno, 509 U.S. 630 (1993)..................................  10
South Carolina v. Katzenbach, 383 U.S. 301

(1966>...................................................  19,21,22,24,30,32
Thornburg v. Gingles, 478 U.S. 30 (1986).................  29,39
United States v. Louisiana, 225 F. Supp. 353

(E.D. La. 1963), aff’d, 380 U.S. 145 (1965)...................... 21
United States v. Mississippi, 229 F. Supp. 925

(S.D. Miss. 1964), rev’d, 380 U.S. 128 (1965)..................  21
United States v. Penton, 212 F. Supp. 193 (M.D.

Ala. 1962)........................................................................ 21
Village of Arlington Heights v. Metropolitan

Housing Dev. Corp., 429 U.S. 252 (1977) ..............  passim
Voinovich v. Quilter, 507 U.S. 146 (1993)......................  23
Washington v. Davis, 426 U.S. 229 (1976).....................  30,31
Westwego Citizens for Better Gov’t v. City of 

Westwego, 872 F.2d 1201 (5th Cir. 1989) ....................... 43



VI

Constitution, statutes, regulation, and rule: Page
U.S. Const.:

Amend. XIV .....................................................  2,19,23,1a
§ 1 (Equal Protection Clause)..................................  30; la

Amend. X V .............................................  2,19,20,22,23,1a
§ 1 .............................................................................  19> i a

Civil Rights Act of 1957,42 U.S.C. 1971 et seq:.
42 U.S.C. 1971(a) (1958).............................................  20
42 U.S.C. 1971(c) (1958) .............................................  20

Civil Rights Act of 1964, Tit. VII, 42 U.S.C.
2000e-2(m)......................................................................  47

Voting Rights Act of 1965,42 U.S.C. 1973 et seq.:
§ 2,42 U.S.C. 1973 ................................................  9,10,11
§ 5,42 U.S.C. 1973c........................................  passim, la
§ 6,42 U.S.C. 1973d ................................................... 34

28C.F.R. Pt. 51:
Section 51.55(a)..............................................................  33
App. 2

Fed. R. Civ. P. 52(a) .......................................................... 43

Miscellaneous:

116 Cong. Rec. 5521 (1970)................................................  23
David J. Garrow, Protest at Selma (1978)........................  21
H.R. Rep. No. 439,89th Cong., 1st Sess. (1965)..........  21,22
H.R. Rep. No. 397,91st Cong., 1st Sess. (1969)..........  21,23
H.R. Rep. No. 196,94th Cong., 1st Sess. (1975)..............  23
H.R. Rep. No. 227,97th Cong., 1st Sess. (1981).............. 23
S. Rep. No. 162,89th Cong., 1st Sess. Pt. 3 (1965)......... 21,22
S. Rep. No. 295,94th Cong., 1st Sess. (1975)..................  23
S. Rep. No. 417,97th Cong., 2d Sess. (1982).............. 19,21,

23,29,38
Voting Rights: Hearings on S. 156b Before the Senate 

Comm, on the Judiciary, 89th Cong., 1st Sess. Pt. 1
(1965)..............................................................................  21

Voting Rights: Hearings on H.R. 6b00 Before 
Subcomm. No. 5 of the House Comm, on the 
Judiciary, 89th Cong., 1st Sess. (1965) ...................  21,22

3fn tfje Supreme Court of tl)t Umtefc >̂tate£(
Oc to b er  T e r m , 1998 

No. 98-405
J a n e t  R e n o , A t t o r n e y  Ge n e r a l , a p p e l l a n t

v.

Bo ssie r  P a r is h  School  Board

No. 98-406
Geo r g e  P r ic e , e t  a l ., a p p e l l a n t s

v.

Bo ssie r  P a r is h  S chool  B oard

ON APPEALS FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA

BRIEF FOR THE FEDERAL APPELLANT

OPINIONS BELOW
The opinion of the district court (J.S. App. la-28a)' is 

reported at 7 F. Supp. 2d 29. An earlier opinion of the 
district court (J.S. App. 78a-144a) is reported at 907 F. 
Supp. 434. This Court’s opinion on appeal from the dis­
trict court’s initial decision (J.S. App. 29a-77a) is re­
ported at 520 U.S. 471.

JURISDICTION
The judgment of the three-judge district court was 

entered on May 4, 1998. J.A. 33. Notices of appeal

1 “J.S. App.” refers to the appendix to the jurisdictional statement in 
No. 98-405.

(1)



2

were filed on July 6, 1998 (the Monday following Fri­
day, July 3, a federal holiday). J.A. 33-34. This Court 
noted probable jurisdiction on January 22, 1999. J.A. 
408. This Court’s jurisdiction rests on 42 U.S.C. 1973c.

CONSTITUTIONAL AND STATUTORY PROVISIONS 
INVOLVED

Reproduced in an appendix to this brief (App., infra, 
la-2a) are pertinent provisions of the Fourteenth and 
Fifteenth Amendments to the United States Constitu­
tion and Section 5 of the Voting Rights Act of 1965, 42 
U.S.C. 1973c.

STATEMENT
1. The State of Louisiana and all of its political sub­

divisions are jurisdictions covered by the “preclear­
ance” requirement of Section 5 of the Voting Rights 
Act of 1965, 42 U.S.C. 1973c. See 28 C.F.R. Pt. 51 App. 
Section 5’s preclearance requirement provides that a 
covered jurisdiction may not implement any change in 
its election practices unless either (1) it has first sub­
mitted the proposed change to the Attorney General 
and the Attorney General has not interposed an objec­
tion to the change within 60 days, or (2) it has obtained 
a declaratory judgment from the United States District 
Court for the District of Columbia that the proposed 
change “does not have the purpose and will not have 
the effect of denying or abridging the right to vote on 
account of race or color.” 42 U.S.C. 1973c. This case 
involves the effort by the School Board of Bossier 
Parish, Louisiana (appellee or Board) to gain preclear­
ance for a redistricting plan that it adopted in 1992.

Bossier Parish is located in northwestern Louisiana. 
The Parish’s primary governing body, the Police Jury, 
and the Parish’s separate School Board each consist of 
12 members elected from single-member districts by

3

majority vote to four-year concurrent terms. J.S. App. 
145a. There is no legal requirement that the 12 Police 
Jury districts and the 12 School Board districts be the 
same, and the districts for the two bodies were differ­
ent throughout the 1980s. Id. at 150a-151a.

The School Board and the Parish both have a history 
of racial discrimination beginning before the Civil War 
and continuing to the present. J.S. App. 210a-220a. 
That discrimination has affected both the administra­
tion of the school system by the Board and the drawing 
of voting districts for elections to both the Board and 
the Police Jury.

As for the administration of the school system, de 
jure segregation prevailed in Louisiana’s schools long 
after this Court’s decision in Brown v. Board of Educa­
tion, 347 U.S. 483 (1954). J.S. App. 216a. In 1965, the 
Board was placed under a court order to eliminate the 
vestiges of racial discrimination in its school system. 
Lemon v. Bossier Parish Sch. Bd., 240 F. Supp. 709 
(W.D. La. 1965), affd, 370 F.2d 847 (5th Cir.), cert, de­
nied, 388 U.S. 911 (1967). The Board repeatedly sought 
to evade its desegregation obligations through a variety 
of devices, and it remains subject to that court order, its 
1979 request for termination having been denied. J.S. 
App. 216a-217a. The Board has continued to violate the 
Lemon court’s order to maintain a biracial committee to 
“recommend to the School Board ways to attain and 
maintain a unitary system and to improve education in 
the parish.” Id. at 182a-183a. The Board also has 
continued to assign disproportionate numbers of black 
faculty to schools with predominantly black enrollment. 
The schools in Bossier Parish have, in fact, become 
increasingly segregated by race since the 1980s. Id. at 
217a-218a.



4

As for the Parish’s electoral systems, in 1990, black 
persons comprised 20.1% of the total population of 
Bossier Parish, and 17.6% of the voting age population. 
J.S. App. 145a-146a. The black population of the Parish 
is heavily concentrated in two areas. More than 50% of 
the black residents live in Bossier City, and the re­
maining black population is concentrated in four popu­
lated areas in the northern rural part of the Parish. Id. 
at 146a-147a. Voting patterns in the Parish are polar­
ized along racial lines, see id. at 201a-206a; see also J.A. 
163-174 (analysis by government’s expert); one Police 
Juror estimated that at least 80% of white and black 
voters choose candidates of their own race, J.S. App. 
201a. The parties have also stipulated that it is feasible 
to draw two reasonably compact majority-black dis­
tricts in the Parish using traditional districting features 
such as roads, streams, and railroads. Id. at 154a-155a, 
192a-194a. Nevertheless, the Police Jury has never 
enacted a districting plan with any majority-black 
districts, id. at 79a, and black voters have historically 
been unable to elect candidates of their choice to 
political positions in the Parish, id. at 195a-206a; see 
J.A. 174 (government’s expert concluding that, because 
of racially polarized voting patterns and bloc voting, 
“African American voters are likely to have a realistic 
opportunity to elect candidates of their choice * * * 
only in districts in which they constitute a majority of 
the voting age population”).2

2 When the largely stipulated record was compiled in this case, 
no black person had ever been elected to the School Board. J.S. 
App. 195a. In the 16 elections in the Parish held from 1981 through 
1993 in which a black candidate ran against a white candidate in a 
single-member district or for mayor, only two black candidates 
(one for Police Jury, one for Bossier City Council) won. Both of 
those candidates ran in districts that contained a United States Air

5

2. After the 1990 census revealed that its districts 
were malapportioned, the Police Jury began the process 
of redistricting. “At the time of the 1990-1991 redis­
tricting process, some Police Jurors were specifically 
aware that a contiguous black-majority district could be 
drawn both in northern Bossier Parish and in Bossier 
City,” and “it was obvious that a reasonably compact 
black-majority district could be drawn within Bossier 
City.” J.S. App. 154a-155a. Nonetheless, during public 
meetings in April 1991, white Police Jurors and the Po­
lice Jury’s cartographer, Gary Joiner, told citizens that 
it was impossible to create such districts because the 
black population was too dispersed. Id. at 160a-162a.

Force base that increased the ability of black voters to elect 
representatives of their choice, in a manner peculiar to those dis­
tricts. Id. at 196a-198a, 199a-200a, 206a; J.A. 168-170, 515-521. 
When the plans were reconfigured after the 1990 census in a way 
that reduced the effect of the Air Force Base area, the black 
incumbent Police Juror was reelected unopposed in 1991 (J.S. App. 
198a), and the incumbent black Bossier City Councilmember faced 
a white challenger in 1993 and lost (id. at 200a).

Before its earlier decision in this case, this Court denied the 
Board’s motion to supplement the record with the results of an 
election that occurred after the district court’s 1995 decision. Reno 
v. Bossier Parish Sch. Bd., 517 U.S. 1154 (1996). On remand, the 
parties agreed to rest on the record that had previously been 
compiled. J.S. App. la. The district court offered the Board two 
opportunities to reopen the record, which the Board declined. 
Thus, the district court decided this case on the basis of stipulated 
facts showing that voting is racially polarized in the Parish, and 
that no black person had ever been elected to the Board. The 
Board later asked the district court to take judicial notice of elec­
tion results after the court’s November 1995 judgment, in which 
blacks were elected to the Board. The district court denied the 
motion, and explained that, were it “to consider the election results 
at all, [it] would need more information about them.” Id. at la-2a 
n.l; see also 98-405 Gov’t Opp. to Mot. to Aff. 3-4 n.2.



6

On April 30, 1991, the Police Jury adopted a redistrict­
ing plan that, like all of its predecessors, contained no 
majority-black districts. Id. at 163a-164a. The plan re­
quired the creation of 20 new precincts and was not the 
alternative with the fewest precinct splits. Id. at 167a- 
168a.

On May 28, 1991, the Police Jury submitted its redis­
tricting plan to the Department of Justice for preclear­
ance under Section 5. The Police Jury did not provide 
the Department with information then available to it 
showing that reasonably compact majority-black dis­
tricts could be created. Nor did it provide a copy of a 
letter from the Concerned Citizens of Bossier Parish, a 
local organization, protesting the Police Jury’s exclu­
sion of black citizens from the redistricting process, 
despite the organization’s express request that the let­
ter be included in the Police Jury’s Section 5 submis­
sion. On July 29, 1991, based on the information sub­
mitted to it, the Department of Justice precleared the 
plan for Police Jury elections. J.S. App. 165a-167a.

3. The School Board initially proceeded without ur­
gency on its own redistricting process, as its next elec­
tions were not scheduled to occur until October 1994. 
J.S. App. 172a. On May 2, 1991 (after the Police Jury 
had adopted its plan), the Board held a meeting to 
which the Police Jury’s cartographer, Joiner, was in­
vited. Joiner reminded the Board that, because no elec­
tion was scheduled until 1994, it had “more than ade­
quate time” in which to develop a plan. Id. at 173a. The 
Board engaged Joiner to draft a redistricting plan, 
which he estimated would take 200 to 250 hours, far 
longer than would be needed simply to duplicate the 
Police Jury plan. Id. at 125a, 173a. On September 5, 
1991, Joiner presented the already-precleared Police 
Jury plan to the Board, along with precinct maps (be­

7

cause, Joiner explained, the Board would have to work 
with the Police Jury to alter precinct lines for its own 
plan). Id. at 174a. But despite a proposal by Board 
Member Tom Myrick (who would have benefited from 
the Police Jury Plan because it preserved his district, 
which was majority-white but contained the largest 
concentration of black voters under the preexisting 
plan), the Board did not at that time adopt the Police 
Jury plan. Ibid.

The Board’s decision not to adopt the Police Jury 
plan reflected the fact that the two bodies have differ­
ent functions and priorities. Police Juries “are con­
cerned with road maintenance, drainage, and in some 
cases garbage collection, and the level of demand for 
such services in each district is a concern. School board 
members, by contrast, are typically concerned with 
having a public school or schools in each district.” J.S. 
App. 151a. The district lines in the Police Jury plan, 
however, were not drawn with school locations in mind. 
Id. at 191a. Also, the Police Jury plan did not 
correspond to the distribution of Board incumbents; if 
adopted by the Board, the Police Jury plan would have 
paired Board incumbents against each other in two dis­
tricts and would have created two other districts with 
no incumbent. Id. at 181a.

Beginning in March 1992, appellant-intervenor 
George Price, president of the local chapter of the 
NAACP, wrote to the Board to point out that there was 
no minority representation on the Board, and requested 
that he be included in the Board’s redistricting process. 
The Board did not respond to those requests. J.S. App. 
175a-176a. In August 1992, Joiner met privately with 
Board members and showed them various computer­
generated alternative scenarios, none of which con­
tained a majority-black district. Id. at 176a. Also in



8

August 1992, at a time when no other plan had been 
publicly released, Price presented Joiner with a partial 
plan, containing two majority-black districts, that had 
been developed by the NAACP. Joiner told Price the 
Board would not consider a plan that did not include the 
other ten districts. J.A. 175-176; J.S. App. 177a-178a.

At a Board meeting held on September 3,1992, Price 
presented a new NAACP plan that depicted all 12 dis­
tricts and included two majority-black districts. J.S. 
App. 177a-178a. The Board refused to consider Price’s 
new plan, ostensibly because “the [NAACP] plan’s dis­
trict lines crossed existing precinct lines, and therefore 
violated state law.” Id. at 178a-179a. The Board, its 
cartographer, and its attorney knew at the time, how­
ever, that the Board was not legally precluded from 
considering a plan that would cross existing precinct 
lines. Id. at 179a. Although state law prohibits school 
boards themselves from splitting precincts, id. at 149a, 
school boards may and do “request precinct changes 
from the Police Jury necessary to accomplish their 
redistricting goals,” id. at 151a. The Board had long 
been aware of a possible need to split precincts in 
fashioning its redistricting plan, for Joiner had 
explained at the start of the redistricting process that it 
would have to work with the Police Jury to do so, and 
had given the Board precinct maps. Id. at 174a.

At the next Board meeting on September 17, 1992, 
only two weeks after Price had presented the NAACP 
plan, the Board unanimously passed a motion of intent 
to adopt the Police Jury plan that it had initially found 
unsatisfactory. J.S. App. 180a. On September 18,1992, 
Price and others sent a letter urging the Board to use 
the NAlACP plan as a basis for drawing majority-black 
districts. J.A. 193-194. The Board’s action to adopt the 
Police Jury plan precipitated overflow citizen atten­

9

dance at a Board hearing on September 24, 1992, and 
many citizens, white and black, vocally opposed the 
plan. Price explained to the Board that, in light of the 
NAACP plan demonstrating the feasibility of drawing 
majority-black districts, the Department of Justice’s 
preclearance of the Police Jury plan did not guarantee 
its preclearance for Board elections. The Board never­
theless adopted the Police Jury plan at its next meeting 
on October 1,1992. J.S. App. 180a-181a.

The Board submitted the 1992 plan to the Attorney 
General for preclearance. On August 30, 1993, the At­
torney General interposed an objection to the Board’s 
plan, citing new information that had not been provided 
when the Police Jury submitted the same plan, such as 
the demonstrated feasibility of majority-black districts 
and the Board’s refusal to engage in efforts to accom­
modate the concerns of the black community. J.S. App. 
233a-237a.

4. On July 8, 1994, the Board filed a declaratory 
judgment action in the United States District Court for 
the District of Columbia, seeking preclearance of its 
1992 election plan. The government opposed pre­
clearance, arguing that the Board had not shown an ab­
sence of discriminatory purpose on its part, and also 
that the plan would “result[] in a denial or abridgment 
of the right * * * to vote on account of race or color,” 
in violation of Section 2 of the Voting Rights Act of 
1965, 42 U.S.C. 1973. The government did not argue, 
however, that the 1992 plan had either the purpose or 
effect of making the position of blacks worse than be­
fore it was enacted. See J.S. App. 88a, 221a.

On November 2, 1995, a divided three-judge district 
court granted preclearance. J.S. App. 78a-144a. The 
court first held that a redistricting plan may not be de­
nied preclearance solely on the basis that the new plan



10

would violate Section 2. Id. at 89a-102a. The court also 
ruled that the Board, in adopting the Police Jury plan, 
did not have a racially discriminatory purpose that 
would bar preclearance. Id. at 102a-114a. In reaching 
that conclusion, the court acknowledged that the Board 
had “offered several reasons for its adoption of the Po­
lice Jury plan that clearly were not real reasons.” Id. at 
106a n.15 (noting that Board had contended that the 
plan was designed to comply with Shaw v. Reno, 509 
U.S. 630 (1993), which had not yet been decided when 
the 1992 plan was adopted). The court nonetheless 
found “legitimate, non-discriminatory motives” for the 
Board’s decision: “The Police Jury plan offered the twin 
attractions of guaranteed preclearance and easy 
implementation (because no precinct lines would need 
redrawing).” J.S. App. 106a.

Judge Kessler concurred in part and dissented in 
part, and would have denied preclearance. J.S. App. 
115a-144a. Although she agreed with the majority that 
a Section 2 violation does not per se prevent Section 5 
preclearance, she dissented from the majority’s conclu­
sion that the Board had satisfied its burden to show the 
absence of a discriminatory purpose in its adoption of 
the plan. Id. at 115a-116a. Taking into account evi­
dence that, she maintained, was relevant to the intent 
analysis under Village of Arlington Heights v. Metro­
politan Housing Development Corp., 429 U.S. 252, 266 
(1977), she found that “the evidence demonstrates con­
clusively that [the Board] acted with discriminatory 
purpose.” J.S. App. 117a-118a.

5. The government appealed to this Court, and ar­
gued that a voting change may not be precleared under 
Section 5 if the change would violate Section 2, and that 
the district court erred in its purpose analysis. This 
Court disagreed with the government on the first point

11

and held, in agreement with the district court, that a 
voting change may not be denied preclearance under 
Section 5 solely because the change would “result” in a 
denial or abridgment of the right to vote, in violation of 
Section 2. J.S. App. 33a-45a. The Court explained that 
“a plan has an impermissible ‘effect’ under § 5 only if it 
‘would lead to a retrogression in the position of racial 
minorities with respect to their effective exercise of the 
electoral franchise.’” Id. at 35a (quoting Beer v. United 
States, 425 U.S. 130,141 (1976)).

The Court also held, however, that evidence that a 
voting change would dilute minority voting strength is 
relevant to whether that change has a discriminatory 
purpose, and therefore should be denied preclearance. 
J.S. App. 45a-51a. The Court stated that, even if the 
only discriminatory purpose that requires denial of 
preclearance under Section 5 is a retrogressive pur­
pose, i.e., an intent to make the position of minorities 
worse than before, evidence of vote dilution is relevant 
to that analysis. Id. at 47a. The Court remanded the 
case to the district court for further consideration as to 
whether the Board had a discriminatory purpose in 
adopting the 1992 plan. Id. at 50a-51a. In remanding 
the case, the Court “[left] open for another day the 
question whether the § 5 purpose inquiry ever extends 
beyond the search for retrogressive intent,” and stated 
that the existence of a “non-retrogressive, but never­
theless discriminatory, purpose,” and “its relevance to 
§ 5, are issues to be decided on remand.” Id. at 45a- 
46a.3

3 In separate opinions, Justice Breyer, joined by Justice Gins- 
burg, and Justice Stevens, joined by Justice Souter, concluded that 
the purpose inquiry under Section 5 extends beyond the search for 
retrogressive intent, and “includes the purpose of unconstitu-



12

6. On remand, the parties rested on the original re­
cord. J.S. App. la. The government argued that a 
voting change may not be precleared if it was enacted 
with a discriminatory (albeit not necessarily retrogres­
sive) purpose, and that the evidence showed that the 
Board had adopted the 1992 plan with the discrimina­
tory purpose of perpetuating the dilution of blacks’ 
voting strength in Bossier Parish. The district court, 
again divided, again precleared the Board’s plan. Id. at 
la-28a.

As to whether Section 5 requires denial of preclear­
ance of a plan enacted with a discriminatory but non- 
retrogressive purpose, the majority stated, “We are not 
certain whether or not we have been invited to answer 
the question the Court left for another day, but we de­
cline to do so in this case.” J.S. App. 3a. The majority 
also remarked that the record in this case “will not sup­
port a conclusion that extends beyond the presence or 
absence of retrogressive intent.” Ibid. Although the 
majority remarked that it could “imagine a set of facts 
that would establish a ‘non-retrogressive, but never­
theless discriminatory purpose,”’ it stated that “those 
imagined facts are not present here.” Id. at 3a-4a. 
Thus, the majority proceeded to analyze only whether 
the Board had enacted the plan with an intent to ret­
rogress. It did not examine whether the evidence 
demonstrated that the Board had enacted the plan with 
the unconstitutional purpose of maintaining an electoral 
system that dilutes the votes of blacks in the Parish, 
nor did it apply the Arlington Heights framework to

tionally diluting minority voting strength.” J.S. App. 56a (Breyer, 
J., concurring in part and concurring in the judgment); id. at 76a 
(Stevens, J., dissenting in part and concurring in part) (agreeing 
with Justice Breyer on that point).

13

analyze evidence of such a purpose to dilute blacks’ 
votes.

The district court adhered to its previous view that 
the Board’s adoption of the Police Jury plan was sup­
ported by two “legitimate, non-discriminatory mo­
tives”: the Board’s belief that the plan would be easily 
precleared (because it had already been precleared by 
the Attorney General for use in Police Jury elections) 
and its “focus on the fact that the Jury plan would not 
require precinct splitting, while the NAACP plan 
would.” J.S. App. 5a. Those two motives, the court 
concluded, were sufficient to establish a “prima facie 
case for preclearance.” Ibid.

The majority then considered, under the rubric of Ar­
lington Heights, supra, factors that might be relevant 
to establish the Board’s retrogressive intent. First, it 
considered whether there was evidence that the plan 
“bears more heavily on one race than another.” J.S. 
App. 5a. It found that factor inconclusive, because, 
having limited its analysis to evidence of retrogressive 
intent, it could not find evidence that “the Jury plan 
bears more heavily on blacks than the pre-existing 
plan,” ibid, (emphasis added); even if the 1992 plan was 
dilutive of black voting strength, it was no more dilu­
tive than the previous plan, id. at 5a-6a. As for the his­
torical background to the Board’s adoption of the 1992 
plan, the court acknowledged that there was “powerful 
support for the proposition that [the Board] in fact re­
sisted adopting a redistricting plan that would have 
created majority black districts,” including the Board’s 
history of resistance to school desegregation (particu­
larly its refusal to obey a district court order to main­
tain a biracial committee to study ways to attain a uni­
tary school system). Id. at 6a-7a. But, the court 
stressed, all that history proved only “a tenacious de­



14

termination to maintain the status quo. It is not enough 
to rebut the School Board’s prima facie showing that it 
did not intend retrogression.” Id. at 7a. Similarly, the 
sequence of events leading up to the adoption of the 
plan “does tend to demonstrate the school board’s resis­
tance to the NAACP plan,” and evidence of the Board’s 
deviation from its normal practices “establishes rather 
clearly that the board did not welcome improvement in 
the position of racial minorities with respect to their 
effective exercise of the electoral franchise,” but nei­
ther established retrogressive intent. Ibid.

Judge Kessler again dissented. J.S. App. 12a-27a. 
She again concluded that “the School Board’s decision 
to adopt the Police Jury redistricting plan was moti­
vated by discriminatory purpose,” id. at 12a, and that 
the Board’s “proffered reasons for acceptance of the 
Police Jury plan are clearly pretextual,” id. at 15a. She 
agreed with the government that the existence of a 
discriminatory, albeit nonretrogressive, purpose re­
quires denial of preclearance under Section 5; other­
wise, “we would commit ourselves to granting § 5 pre­
clearance to a ‘resistant’ jurisdiction’s nonretrogressive 
plan even if the record demonstrated an intent by that 
jurisdiction to perpetuate an historically discriminatory 
status quo by diluting minority voting strength.” Id. at 
17a. After reviewing evidence of vote dilution in 
Bossier Parish, Judge Kessler concluded, “[i]t would be 
impossible to ignore the weight and the relevance of 
this § 2 evidence to the School Board’s intent to dilute 
the voting strength of blacks in Bossier Parish.” Id. at 
22a-23a. And she reiterated her previous conclusion, 
based on applying the Arlington Heights framework to 
the facts of this case, that “the only conclusion that can 
be drawn from the evidence is that [appellee] acted

15

with discriminatory purpose.” Id. at 23a (brackets 
omitted).

SUMMARY OF ARGUMENT
A. Section 5 of the Voting Rights Act of 1965 pro­

hibits a covered jurisdiction from implementing a new 
voting practice unless the jurisdiction establishes that 
the new practice “does not have the purpose and will 
not have the effect of denying or abridging the right to 
vote on account of race or color.” 42 U.S.C. 1973c. The 
“purpose” prong of Section 5 requires the courts to de­
cide whether a voting change has a discriminatory pur­
pose, not merely whether it has a retrogressive pur­
pose. The language of the statute refers simply to a 
purpose to deny or abridge the right to vote on account 
of race, and makes no reference to an intent to make the 
position of minorities worse. The background to Sec­
tion 5 also makes clear that Congress enacted that pro­
vision to prevent covered jurisdictions from imple­
menting voting changes denying and abridging minori­
ties’ voting rights in violation of the Constitution, 
whether or not they are retrogressive. Congress en­
acted Section 5 because its previous approach to uncon­
stitutional racial discrimination in voting practices, re­
quiring case-by-case litigation to enjoin particular prac­
tices, had proven inadequate; Congress found that of­
fending jurisdictions simply replaced one voting prac­
tice declared by the courts to be discriminatory with 
another intended to accomplish the same result. If 
Section 5 were limited to voting changes with a retro­
gressive intent, then a jurisdiction could replace one 
unconstitutionally discriminatory voting practice with 
another having precisely the same purpose and effect. 
It is implausible that Congress intended to require ei­
ther the Attorney General or this Court to give such



16

approval to unconstitutional, racially discriminatory 
voting practices.

This Court’s previous decisions regarding Section 5 
support a construction that precludes enforcement of all 
voting changes enacted with a racially discriminatory 
purpose. The Court has explained that, even when a 
voting change has an effect that does not preclude 
preclearance, the change should nonetheless be barred 
if it was enacted with a discriminatory purpose, because 
official actions taken with a racially discriminatory 
purpose have no legitimacy under the Constitution. 
Thus, if a change is enacted with the purpose to dilute 
the votes of minorities, it should be denied preclear­
ance, even if it is not retrogressive. Although the Court 
has construed the “effect” prong of Section 5 to be lim­
ited to retrogression, that construction reflects con­
cerns about the potential reach of a provision that 
opens official action to challenge because of discrimina­
tory effects alone, and has little relevance to official ac­
tion with a racially discriminatory motivation. This 
construction of Section 5’s “purpose” prong is also sup­
ported by the Attorney General’s longstanding and 
consistent practice in administering the statute, which 
is entitled to deference.

B. Appellee’s 1992 redistricting plan should be de­
nied preclearance because it had the unconstitutional 
purpose of diluting the voting strength of black voters 
in Bossier Parish. Properly analyzed in light of the 
factors set forth in Village of Arlington Heights v. 
Metropolitan Housing Development Corp., 429 U.S. 252 
(1977), the evidence establishes appellee’s discrimi­
natory intent. There is both a long and a recent history 
of racial discrimination against blacks in Bossier Parish, 
including and especially discrimination by the School 
Board. The facts leading up to the adoption of the plan

17

persuasively show invidious intent. The Board origi­
nally had little interest in the Police Jury plan because 
that plan interfered with its traditional districting 
goals, and intended to adopt an entirely different plan; 
it turned to the Police Jury plan only after black voters 
in the Parish began to insist on a plan that would create 
a majority-black district. The record establishes that 
the Police Jury plan had the effect of perpetuating the 
dilution of blacks’ voting strength in the Parish. State­
ments by School Board members also indicate the 
Board was hostile to black representation on the Board. 
The district court indeed acknowledged that the Board 
did not welcome improvement in the political position of 
blacks in the Parish, and that the Board was motivated 
to adopt the plan by a “tenacious determination” to 
maintain the status quo (J.S. App. 7a)—a status quo in 
which, appellee has conceded, blacks’ votes are diluted.

In examining appellee’s purpose, the district court 
erroneously confined its analysis of the evidence under 
the Arlington Heights framework to determining 
whether the plan had a retrogressive purpose. Thus, to 
the extent the district court may have addressed the 
plan’s discriminatory (but not retrogressive) purpose, 
its analysis was legally insufficient, for it failed to apply 
Arlington Heights to determine whether the plan had a 
discriminatory purpose. Similarly, any conclusion by 
the district court that appellee adopted the plan for le­
gitimate reasons could not be sustained on appeal be­
cause of the lower court’s erroneous truncation of its 
analysis. The record shows in any event that appellee’s 
justifications for its plan are pretextual. Moreover, 
because appellee must show the absence of a dis­
criminatory purpose to its 1992 plan, preclearance 
should be denied because the evidence shows that the



18

plan did have a discriminatory purpose, even if there 
might also be legitimate justifications for the plan.

ARGUMENT
BECAUSE BOSSIER PARISH SCHOOL BOARD’S 
1992 REDISTRICTING PLAN WAS ENACTED WITH 
AN UNCONSTITUTIONAL, RACIALLY DISCRIMI­
NATORY PURPOSE, THE DISTRICT COURT ERRED 
IN PRECLEARING THAT PLAN
A. Section 5 Of The Voting Rights Act o f 1965 Bars 

Preclearance Of A Voting Change Enacted With 
An Unconstitutional, Racially Discriminatory 
Purpose, Whether Or Not The Change Was Also 
Intended To Make The Position Of Minorities 
Worse Than Before The Change Was Enacted

1. Congress Intended Section 5 To Bar Implemen­
tation Of U nconstitutional Voting Changes 
Enacted By Covered Jurisdictions

Section 5 bars the implementation of a covered juris­
diction’s voting change unless the jurisdiction estab­
lishes that the change “does not have the purpose and 
will not have the effect of denying or abridging the 
right to vote on account of race or color.” 42 U.S.C. 
1973c. A “purpose * * * 0f * * * abridging the right 
to vote on account of race” includes any purpose to limit 
the voting power of minorities, including the purpose to 
implement and perpetuate a regime because it dilutes 
the votes of racial minorities. See Allen v. State Bd. of 
Elections, 393 U.S. 544, 569 (1969) (explaining that 
Section 5 requires preclearance review even when 
covered jurisdiction does not bar minorities from vot­
ing, because “[t]he right to vote can be affected by a 
dilution of voting power as well as by an absolute pro­
hibition on casting a ballot”); Georgia v. United States, 
411 U.S. 526, 534 (1973) (Section 5 requires preclear­

19

ance review of redistricting plans because of potential 
for dilution of minorities’ votes); cf. Rogers v. Lodge, 
458 U.S. 613, 617 (1982) (upholding Fourteenth Amend­
ment intentional vote-dilution challenge to county’s at- 
large election system).

This interpretation is not only consistent with the 
plain language of the statute, but also it is necessary to 
effectuate the unambiguous intent of Congress in en­
acting Section 5 of the statute, in two respects. First, 
Congress clearly intended in Section 5 to prohibit the 
implementation of any new practice that violated the 
Constitution’s prohibitions against racial discrimination 
in voting. Second, Congress enacted Section 5 for the 
specific purpose of preventing jurisdictions from sub­
stituting for one prohibited voting practice another 
voting practice designed to restore—but not necessar­
ily to magnify—the discriminatory features of the pro­
hibited law. Neither congressional purpose would be 
served by the construction of Section 5 proposed by ap­
pellee (Mot. to Aff. 19), limiting its reach to voting 
changes enacted with “retrogressive intent”—i.e., with 
the purpose of making the position of minorities worse 
than it was before the change.

Congress’s overarching purpose in enacting and re­
enacting Section 5 was to enforce the Constitution’s 
prohibitions against purposeful racial discrimination in 
voting. See South Carolina v. Katzenhach, 383 U.S. 
301, 325-326 (1966); City of Rome v. United States, 446 
U.S. 156,173-178 (1980); S. Rep. No. 417, 97th Cong., 2d 
Sess. 9-10 (1982). Indeed, Section 5 tracks the language 
of the Fifteenth Amendment, which prohibits inten­
tional racial discrimination in official voting practices. 
Cf. U.S. Const. Amend. XV, § 1 (“The right of citizens 
* * * to vote shall not be denied or abridged * * * on 
account of race [or] color[.]”); Gomillion v. Lightfoot,



20

364 U.S. 339 (1960). If Section 5’s purpose prong were 
limited to voting changes enacted with a retrogressive 
intent, then the federal courts (including this Court) 
and the Attorney General would be required to give ap­
proval to changes specifically intended to impair mi­
norities’ voting rights in violation of the Constitution, 
so long as the voting changes were not intended to (and 
did not) make the position of minorities worse. The 
background to Section 5 shows that such a construction 
of Section 5 is implausible.

Congress enacted Section 5 for the specific purpose 
of stopping the practice of replacing one unconstitu­
tional voting law with another. In the Civil Rights Act 
of 1957, Congress, to enforce the Fifteenth Amend­
ment, had declared that all citizens otherwise qualified 
to vote should be entitled to vote “without distinction of 
race, color, or previous condition of servitude,” 42 
U.S.C. 1971(a) (1958), and had authorized the Attorney 
General to bring suit to prevent the deprivation of the 
right to vote on account of race, 42 U.S.C. 1971(c) 
(1958). The Justice Department’s experience under the 
1957 Act was that that statute’s approach, requiring af­
firmative litigation by the federal government, accom­
plished little (and that only after great delay) because 
jurisdictions intent on impairing blacks’ right to vote 
resisted voting rights litigation to the utmost. In par­
ticular, even after the federal government won final 
judgments enjoining jurisdictions from enforcing par­
ticular discriminatory tests, the jurisdictions simply 
switched to new devices in order to accomplish the 
same result. As Attorney General Katzenbach told a 
subcommittee of the House Judiciary Committee: 
“[T]he fact is that those who are determined to resist 
are able, even after apparent defeat in the courts, to 
devise whole new methods of discrimination. And often

21

that means beginning the whole weary process all over 
again.”4 S.

Congress therefore determined “to shift the advan­
tage of time and inertia from the perpetrators of the

4 Voting Rights: Hearings on H.R. 6b00 Before Subcomm. No. 5 
of the House Comm, on the Judiciary, 89th Cong., 1st Sess. 5 
(1965) (1965 House Hearing); see also Voting Rights: Hearings on 
S. 156b Before the Senate Comm, on the Judiciary, 89th Cong., 1st 
Sess. Pt. 1, at 11 (1965) (Attorney General Katzenbach, describing 
“second full-scale attempt to end discriminatory practices” in 
Selma); H.R. Rep. No. 439, 89th Cong., 1st Sess. 10 (1965) (“In­
deed, even after apparent defeat resisters seek new ways and 
means of discriminating. Barring one contrivance too often has 
caused no change in result, only in methods.”); S. Rep. No. 162, 
89th Cong., 1st Sess. Pt. 3, at 7-9 (1965) (joint views of 12 members 
of Senate Judiciary Committee, ascribing inadequacy of 1957 Act 
to “intransigence of local officials and dilatory tactics” used in vot­
ing rights litigation); H.R. Rep. No. 397, 91st Cong., 1st Sess. 2 
(1969) (because of “State and local intransigence and delays in the 
judicial process,” earlier legislation “yielded insignificant gains”);
S. Rep. No. 417, supra, at 5 (before 1965, “case-by-case litigation 
proved wholly inadequate,” for “[b]y the time a court enjoined one 
scheme, the election had often taken place, local officials had de­
vised a new scheme, or both”); South Carolina, 383 U.S. at 309-315 
(reviewing evidence before Congress about ineffectiveness of liti­
gation under 1957 Act); Perkins v. Matthews, 400 U.S. 379, 396 & 
n.13 (1971) (similar); United States v. Mississippi, 229 F. Supp. 
925, 995-997 (S.D. Miss. 1964) (Brown, J., dissenting) (describing 
Mississippi’s response to previous litigation), rev’d, 380 U.S. 128 
(1965); United States v. Louisiana, 225 F. Supp. 353, 392-393 (E.D. 
La. 1963) (Wisdom, J.) (noting Louisiana had adopted a “good 
citizenship” test in case its test of understanding state constitution 
was invalidated), afPd, 380 U.S. 145 (1965); United States v. 
Penton, 212 F. Supp. 193, 201-202 (M.D. Ala. 1962) (Johnson, J.) 
(“In spite of [two] prior judicial declarations,” Alabama “continues 
in the belief that some contrivance may be successfully adopted 
and practiced for the purpose of’ depriving blacks of franchise); 
David J. Garrow, Protest at Selma 12-29 (1978) (reviewing 
historical evidence showing ineffectiveness of 1957 Act).



22

evil to its victims.” South Carolina, 383 U.S. at 328. It 
did so by “suspending] new voting regulations [in cov­
ered jurisdictions] pending scrutiny by federal authori­
ties to determine whether their use would violate the 
Fifteenth Amendment.” Id. at 334.5 Under appellee’s 
view of Section 5, however, if the Justice Department 
successfully sued to enjoin enforcement of a covered 
jurisdiction’s racially discriminatory voting practice as 
violative of the Fifteenth Amendment, and the jurisdic­
tion then responded with a different practice that was 
intended to have, and did have, precisely the same (or a 
slightly less) invidious effect on blacks’ voting rights in 
violation of the Fifteenth Amendment, then the Attor­
ney General would be required to preclear that new 
practice.

Nothing in the legislative background to Section 5 
suggests that Congress anticipated or desired that the 
Attorney General preclear newly adopted voting prac­
tices that violated the Constitution as long as the new 
practices were intended merely to hold the line against 
additional black registration or participation in elec­
tions. To the contrary, as the Court explained in South 
Carolina, Section 5 requires “the suspension of all new 
voting regulations pending review by federal authori­
ties to determine whether their use would perpetuate 
voting discrimination.” 383 U.S. at 316 (emphasis 
added); see id. at 335 (Congress intended Section 5 to

5 See also H.R. Rep. No. 439, supra, at 26 (covered jurisdiction 
must show that new practice “does not have the purpose and will 
not have the effect of denying or abridging rights guaranteed by 
the 15th amendment”); S. Rep. No. 162, supra, at 24 (same); 1965 
House Hearing, supra, at 90 (Attorney General Katzenbach, ex­
plaining that, under Section 5, voting changes could be precleared 
quickly “if there was no reason to believe that those laws were in 
violation of the 15th amendment”).

23

prohibit jurisdictions from “contriving new rules of 
various kinds for the sole purpose of perpetuating vot­
ing discrimination”) (emphasis added).

Furthermore, when Congress reenacted Section 5 in 
1970 and 1982, the relevant committees explained that 
Section 5 review continued to be necessary to prevent 
the perpetuation and maintenance of voting discrimi­
nation through adoption of new voting regulations.6 
Indeed, one of Congress’s specific concerns when it re­
enacted Section 5 was that covered jurisdictions that 
had previously prevented blacks from voting entirely 
had switched to more subtle methods of abridging mi­
norities’ voting rights, such as vote dilution through re­
districting plans.7 Congress retained the preclearance 
requirement to ensure federal review of cases in which 
covered jurisdictions abandoned blunt denials of mi­
norities’ right to vote in favor of permitting minorities 
to register and vote but intentionally diluting the value 
of their vote—a shift that may not be retrogressive but 
is unquestionably discriminatory and unconstitutional.8 
This shift would have come as no surprise to the Con­

6 See H.R. Rep. No. 397, supra, at 7; S. Rep. No. 417, supra, at 
14.

7 See H.R. Rep. No. 397, supra, at 7; 116 Cong. Rec. 5521 (1970) 
(joint statement by members of Senate Judiciary Committee); 
H.R. Rep. No. 196, 94th Cong., 1st Sess. 10 (1975); S. Rep. No. 295, 
94th Cong., 1st Sess. 18 (1975); H.R. Rep. No. 227, 97th Cong., 1st 
Sess. 6 (1981); S. Rep. No. 417, supra, at 6,7 & n.8, 10-12.

8 The Court has not definitively resolved whether intentional 
racial vote dilution violates the Fifteenth Amendment as well as 
the Fourteenth Amendment. See Voinovich v. Quitter, 507 U.S. 
146, 159 (1993). When Congress reenacted Section 5, it made clear 
that the Act covers racially motivated voting changes, including 
intentional vote dilution, that violate the Fourteenth Amendment. 
See S. Rep. No. 417, supra, at 9-10 & n.19.



24

gress that enacted Section 5, for it knew that jurisdic­
tions covered by the Act had resorted to “extraordinary 
stratagemfs]” to resist black enfranchisement in the 
past and had reason to suppose that they would “try 
similar maneuvers in the future in order to evade the 
remedies for voting discrimination contained in the Act 
itself.” South Carolina, 383 U.S. at 335.

Thus, although there has been disagreement over 
“how far beyond the Constitution’s requirements Con­
gress intended [Section 5] to reach,” neither Congress 
nor this Court has ever expressed doubt that Section 
5’s prohibition of discriminatory voting changes was 
intended “to reach as far as the Constitution itself.” 
J.S. App. 57a (Breyer, J., concurring). To hold that the 
Attorney General and the courts must preclear voting 
changes enacted with a racially discriminatory (but not 
retrogressive) purpose would be to conclude that Sec­
tion 5—the federal government’s principal weapon in 
its arsenal against racial discrimination in voting 
—cannot reach what Congress understood to be its 
principal target: the perpetuation of intentional racial 
discrimination in voting that violates the Constitution.

2. This Court Has Construed Section 5 To Bar 
Voting Changes With A Discriminatory, But Not 
Retrogressive, Purpose

a. This Court has consistently held that a voting 
change enacted with the intent to discriminate against 
minorities must be denied preclearance under Section 5, 
whether or not the covered jurisdiction acted with a 
retrogressive intent. Most recently, in City of Pleasant 
Grove v. United States, 479 U.S. 462 (1987), the Court 
denied preclearance to the annexation, by a city with an 
all-white population, of two parcels of land, one vacant 
and one inhabited only by a few white residents. The

25

Court affirmed the district court’s ruling that the City 
of Pleasant Grove had failed to show that its an­
nexations were untainted by a discriminatory purpose, 
id. at 469, even though it was agreed that the change 
could not possibly have been retrogressive of the posi­
tion of black voters in the City at the time of the an­
nexation, since there were no such black voters there, 
id. at 470-471. The Court squarely rejected the conten­
tion that “an impermissible purpose under § 5 can re­
late only to present circumstances,” id. at 471, and af­
firmed the denial of preclearance on the basis of the 
City’s “impermissible purpose of minimizing future 
black voting strength,” id. at 471-472. “One means of 
thw arting  th is process [of black political 
empowerment],” the Court noted, “is to provide for the 
growth of a monolithic white voting block, thereby ef­
fectively diluting the black vote in advance. This is just 
as impermissible a purpose as the dilution of present 
black voting strength.” Id. at 472. In reaching that 
conclusion, the Court rejected the argument, advanced 
in dissent, that, “for a city to have a discriminatory 
purpose within the meaning of the Voting Rights Act, it 
must intend its action to have a retrogressive effect on 
the voting rights of blacks.” Id. at 474 (Powell, J., dis­
senting); see id. at 471 n .ll (opinion of the Court, re­
jecting dissent’s position).9

9 Although the dissent in City of Pleasant Grove suggested 
that, “for a city to have a discriminatory purpose within the 
meaning of the Voting Rights Act, it must intend its action to have 
a retrogressive effect on the voting rights of blacks,” 479 U.S. at 
474, the principal point of the dissent was that the annexation of 
land by an all-white town could not, by definition, have been in­
tended to have any effect on black voters, since there were no such 
black voters. The dissent took issue with what it stated to be the 
Court’s reliance on the possibility that black voters might move



26

Similarly, in City of Richmond v. United States, 422 
U.S. 358 (1975), the Court ruled that, if an annexation 
plan was motivated by a discriminatory purpose, it 
must be denied preclearance, even if the plan does not 
have a prohibited discriminatory effect on minorities’ 
franchise. Although the Court concluded in that case 
that the annexation plan at issue did not have a pro­
hibited effect on the position of minorities, it made clear 
the inquiry could not stop at that point, because the 
district court had found the annexation plan “was

into the town in the future, suggesting that “such speculation in 
finding a discriminatory purpose on the part of a state actor is il­
logical and unprecedented.” Id. at 476; see id. at 476-477 (“Where 
an annexation’s effect on voting rights is purely hypothetical, an 
inference that the city acted with a motivation related to voting 
rights is unsupportable.”). The harm to minority voting rights in 
this case obviously cannot be considered speculative or hypotheti­
cal, since blacks live and vote in Bossier Parish, and the record 
amply supports a conclusion that the 1992 plan dilutes their votes. 
See pp. 38-40, infra-, C.A. No. 94-1495 Appellee Br. 21 (filed Oct. 23, 
1997) (conceding on remand that “the [1992] School plan did dilute 
black voting strength”); J.S. App. 118a-119a (Kessler, J., dis­
senting) (concluding that the 1992 plan “effectively prevents black 
voters from electing candidates of their choice to the School 
Board”).

The dissent in City of Pleasant Grove also cited City of Lock­
hart v. United States, 460 U.S. 125 (1983), for its analysis of the 
purpose prong of Section 5. In City of Lockhart, however, the 
Court had no occasion to consider the purpose prong of Section 5; 
because the district court in that case had denied preclearance un­
der Section 5’s effect test alone, “it was unnecessary for the Dis­
trict Court to reach the issue of discriminatory purpose.” Id. at 
130 & n.4; see id. at 133 (addressing whether city’s new charter 
had “the effect of denying or abridging the right to vote guaran­
teed by § 5”). Since the Court remanded the case to the district 
court for further proceedings, id. at 136, it evidently anticipated 
that the district court would address the issue of purpose on re­
mand.

27

infected by the impermissible purpose of denying the 
right to vote based on race through perpetuating white 
majority power to exclude Negroes from office through 
at-large elections.” Id. at 373. The Court remanded for 
further proceedings on the issue of the City of 
Richmond’s intent, and it stressed that, even though 
the ultimate effect of the annexation might have been 
permissible, nonetheless “[a]n official action, whether 
an annexation or otherwise, taken for the purpose of 
discriminating against Negroes on account of their race 
has no legitimacy at all under our Constitution or under 
the statute. Section 5 forbids voting changes taken 
with the purpose of denying the vote on the grounds of 
race or color.” Id. at 378; see also City of Port Arthur v. 
United States, 459 U.S. 159, 168 (1982) (relying on City 
of Richmond to hold that, even if electoral scheme 
might reflect political strength of a minority group and 
therefore pass “effect” test, “the plan would 
nevertheless be invalid if adopted for racially 
discriminatory purposes”).

This Court’s summary affirmance of the district 
court’s denial of preclearance in Busbee v. Smith, 549 F. 
Supp. 494, 516 (D.D.C. 1982), affd, 459 U.S. 1166 (1983), 
also holds that a voting change must be denied pre­
clearance if it was enacted with a discriminatory pur­
pose, even if that purpose was not necessarily retro­
gressive. The redistricting plan at issue in Busbee was 
concededly not retrogressive in effect, and in fact it in­
creased black voting strength somewhat. Id. at 516. 
The district court, however, relying upon evidence of 
Georgia’s intent to avoid the creation of a majority- 
black district in the Atlanta area, denied Section 5 pre­
clearance. Id. at 516-518. The court explained that the 
redistricting plan was “being denied Section 5 preclear­
ance because State officials successfully implemented a



28

scheme designed to minimize black voting strength to 
the extent possible, [and] the plan drawing process was 
not free of racially discriminatory purpose.” Id. at 518. 
It therefore denied preclearance squarely on a finding 
that Georgia had acted with a discriminatory, but not 
retrogressive, intent.

In its appeal from the district court’s judgment, 
Georgia included the following question in its jurisdic­
tional statement: “Whether a Congressional reappor­
tionment plan that does not have the purpose of dimin­
ishing the existing level of black voting strength can be 
deemed to have the purpose of denying or abridging the 
right to vote on account of race within the meaning of 
Section 5 of the Voting Rights Act.” J.S. at i, Busbee v. 
Smith, 459 U.S. 1166 (1983); see id. at 22. In response, 
the government noted that “[t]he core of [the State’s] 
argument is that the only discriminatory purpose that 
violates Section 5 is a purpose to * * * cause
retrogression,” and argued that this reading of Section 
5 was foreclosed by City of Richmond, supra. See 
Gov’t Mot. to Aff. at 4-6, Busbee v. Smith, supra. Thus, 
this Court’s summary affirmance in Busbee necessarily 
rejected the contention that a voting plan enacted with 
a nonretrogressive, yet discriminatory, purpose may be 
precleared.

In addition, in Beer v. United States, 425 U.S. 130, 
141 (1976), the Court stated that even an ameliorative 
election plan can violate Section 5 if it “so discriminates 
on the basis of race or color as to violate the Constitu­
tion”; see also id. at 142 n.14 (noting that “[i]t is possible 
that a legislative reapportionment could be a substan­
tial improvement over its predecessor in terms of less­
ening racial discrimination, and yet nonetheless con­
tinue so to discriminate on the basis of race or color as 
to be unconstitutional”). Appellee acknowledges that

29

Beer “suggests that any changes that violate the Con­
stitution also violate Section 5.” Mot. to Aff. 24 (inter­
nal quotation marks omitted). Congress has reached 
the same conclusion, for that part of Beer was expressly 
noted with approval in the definitive Senate Report ac­
companying Congress’s 1982 extension of Section 5 
without change. See S. Rep. No. 417, supra, at 12 n.31; 
see also Thornburg v. Gingles, 478 U.S. 30,43 n.7 (1986) 
(noting that the Senate Report is the “authoritative 
source” of the legislative history for the 1982 extension 
of the Act). Congress’s reenactment of Section 5 with­
out changing its applicable standard amounts to a codi­
fication of the Court’s reading of Section 5 in Beer.10

b. Appellee has argued (Mot. to Aff. 21) that, be­
cause the Court in Beer limited the “effect” prong of 
Section 5 to retrogressive effects, the “purpose” prong 
must necessarily be limited to an intent to cause retro­
gression. That argument, however, overlooks both the 
function played by the effect prong of Section 5 and 
many of the concerns that animated the Court’s con­
struction of it in Beer.

10 Appellee has acknowledged (Mot. to Aff. 24) that the Senate 
Report expressly approved the Court’s discussion of “purpose” in 
Beer, but it argues that the Court rejected reliance on the same 
Senate Report on the prior appeal in this case (see J.S. App. 42a). 
On the prior appeal, the Court concluded that one aspect of the 
Senate Report was unreliable as an indicator of congressional in­
tent because it was contrary to the Court’s earlier construction of 
Section 5 in Beer, the Court expressed doubt that, when Congress 
reenacted Section 5 without change, it would have silently 
disapproved the Court’s decision in Beer without amending the 
statutory language. Ibid. The issue on this appeal, however, in­
volves Congress’s approval of a different part of the Court’s deci­
sion in Beer, which deserves great weight.



30

As this Court explained in City of Rome, Congress in 
Section 5 prohibited the implementation of voting 
changes that have a retrogressive effect, even if they do 
not violate the Constitution itself, because for many 
years the covered jurisdictions had imposed devices to 
effect voting discrimination, and had successfully im­
peded the ability of racial minorities to exercise the 
electoral franchise effectively. See 446 U.S. at 176. A 
nonretrogression principle was necessary to ensure 
that further voting changes did not retard minorities’ 
progress in overcoming that past discrimination. See 
id. at 177-178; see also South Carolina, 383 U.S. at 334 
(suspension of tests and devices necessary to remedy 
past discrimination because they could “freeze the ef­
fect of past discrimination”); Lopez v. Monterey County, 
119 S. Ct. 693, 703 (1999) (reaffirming that “the Act may 
guard against both discriminatory animus and the 
potentially harmful effect of neutral laws” in a covered 
jurisdiction).

The Court has also recognized, however, that allow­
ing a voting practice (or, indeed, any official action) to 
be subject to challenge solely because it has a discrimi­
natory effect has implications that are potentially very 
broad. In Beer, for example, the Court noted that the 
district court had applied the concept of “discriminatory 
effect” to rule, in effect, that blacks were entitled to 
proportional representation. See 425 U.S. at 136 & n.8. 
Indeed, in the same Term as Beer, the Court decided 
Washington v. Davis, 426 U.S. 229 (1976), which held 
that proof of discriminatory purpose is necessary to 
establish a violation of the Equal Protection Clause of 
the Fourteenth Amendment. In rejecting the conten­
tion that a discriminatory effect alone is sufficient to 
establish a constitutional violation, the Court empha­
sized in Davis that such a broad-ranging constitutional

31

rule “would be far reaching and would raise serious 
questions about, and perhaps invalidate, a whole range 
of tax, welfare, public service, regulatory, and licensing 
statutes that may be more burdensome to the poor and 
to the average black than to the more affluent white.” 
Id. at 248.

The same concerns, however, are not raised by a con­
struction of Section 5 that prohibits enforcement of 
voting changes enacted with a purpose to discriminate 
against minorities. Such a rule does not preclude any 
voting practice per se; it simply requires that state ac­
tors not adopt practices with a discriminatory intent. 
Cf. Rogers, 458 U.S. at 617 (reaffirming that at-large 
voting systems are not unconstitutional per se, but also 
holding that they may not be used for the purpose of 
vote dilution).

The Court has also observed that Section 5—and in 
particular, its effect prong, which bars enforcement of 
many voting practices that are not actually unconstitu­
tional—“imposes substantial federalism costs.” Lopez, 
119 S. Ct. at 703 (internal quotation marks omitted). 
Limiting Section 5’s effect prong to cases of retrogres­
sion cabins those federalism costs substantially, for a 
construction of the statute’s “discriminatory effect” 
provision not limited by the principle of retrogression 
might have substantially interfered with the States’ 
ability to implement election laws that do not offend the 
Constitution. But there are far fewer federalism costs 
to a reading of Section 5 that precludes enforcement of 
voting practices motivated by intentional racial dis­
crimination (even if that motivation is not retrogres­
sive). Such practices violate the Constitution itself, and



32

therefore may not be legitimately enforced.11 The 
principal federalism costs imposed by Section 5 in a 
case of intentional racial discrimination involve the 
requirement of preclearance and the shifting of the 
burden of proof to the covered jurisdiction to show that 
the voting practice does not have a discriminatory 
purpose. But the Court long ago sustained those 
aspects of Section 5 as necessary to combat “persistent 
discrimination in voting, because of the inordinate 
amount of time and energy required to overcome the 
obstructionist tactics invariably encountered in [such] 
lawsuits.” South Carolina, 383 U.S. at 328; see Lopez, 
119 S. Ct. at 703.

3. The Attorney General’s Construction Of Section 
5 Is Entitled To Deference

Finally, the Attorney General’s construction of Sec­
tion 5 as prohibiting preclearance of voting changes en­
acted with an unconstitutional discriminatory purpose 
(whether or not that purpose is retrogressive) is enti­
tled to deference. The Attorney General has consis­
tently followed that construction. In more than 30 
years of enforcement of the Voting Rights Act, the De­
partment of Justice has always read Section 5 to re­
quire covered jurisdictions to establish that their voting 
changes were enacted without an unconstitutionally 
discriminatory purpose, and it has never limited its 
purpose analysis on preclearance review to a search for

11 See City of Richmond, 422 U.S. at 378 (official action “taken 
for the purpose of discriminating against Negroes on account of 
their race has no legitimacy at all under our Constitution”); Arling­
ton Heights, 429 U.S. at 265-266 (“When there is a proof that a dis­
criminatory purpose has been a motivating factor in the decision, 
this judicial deference is no longer justified.”).

33

“retrogressive intent.”12 * The Attorney General’s pub­
lished procedures for Section 5 submissions do not even 
recognize the concept of “retrogressive intent,” but 
rather make clear that “the Attorney General will con­
sider whether the change is free of discriminatory pur­
pose and retrogressive effect in light of, and with par­
ticular attention being given to, the requirements of the 
14th, 15th, and 24th amendments to the Constitution.” 
28 C.F.R. 51.55(a). That longstanding and consistent 
construction of Section 5 by the Attorney General is en­
titled to “particular deference” in light of her “central 
role” in administering Section 5. See Dougherty 
County Bd. of Educ. v. White, 439 U.S. 32, 39 (1978); 
Lopez, 119 S. Ct. at 702.

B. Bossier Parish School Board’s 1992 Redistricting 
Plan Was Enacted With An Unconstitutional, 
Racially Discriminatory Purpose

1. Proper Analysis Of The Board’s Adoption Of The 
1992 Plan Under The Arlington Heights Frame­
work Shows That The Board Had A Discrimina­
tory Purpose

Appellee has the burden to prove the absence of dis­
criminatory purpose behind the 1992 plan. City of 
Rome, 446 U.S. at 183 n.18. The Court has instructed 
that, in analyzing “whether invidious discriminatory 
purpose was a motivating factor” for a voting change, 
courts should employ the framework of Arlington 
Heights, supra. See J.S. App. 48a; cf. Rogers, 458 U.S. 
at 618 (using same framework to evaluate claim of in­
tentional vote dilution). That framework directs the 
courts to consider, in particular, whether the official ac­

12 The Attorney General has also consistently taken that posi­
tion in litigation. See Gov’t Mot. to Aff. at 5-6, Busbee, supra-, U.S.
Br. at 22-24, City of Pleasant Grove, supra.



34

tion “bears more heavily on one race than another”; the 
“historical background of the [jurisdiction’s] decision”; 
the “specific sequence of events leading up to the 
challenged decision”; “[departures from the normal 
procedural sequence” and “substantive departures”; 
and “[t]he legislative or administrative history,” espe­
cially “contemporary statements by members of the de­
cisionmaking body.” J.S. App. 49a; Arlington Heights, 
429 U.S. at 266-268. Under that analysis, which was 
faithfully applied to this case by Judge Kessler (see J.S. 
App. 23a-26a, 117a-134a), “the only conclusion that can 
be drawn * * * is that [appellee] acted with discrimi­
natory purpose” (id. at 134a).

a. Historical Background. There is a well- 
documented history of racial discrimination affecting 
blacks in Bossier Parish, including discrimination by the 
School Board, continuing into the present. As the par­
ties stipulated (J.S. App. 210a-214a), before passage of 
the Voting Rights Act, Louisiana employed numerous 
tests and devices to prevent blacks from voting. The 
Attorney General in 1967 designated Bossier Parish for 
the appointment of federal voting examiners under 
Section 6 of the Act, and subsequently denied preclear­
ance to a number of voting changes enacted by the 
state legislature because of their dilutive effect on black 
voting rights in the Parish. See id. at 214a-216a.13 In 
1991, the Police Jury (which has never drawn a major­
ity-black district) again adopted a districting plan with 
no majority-black district even though it was “obvious” 
at the time that at least one reasonably compact major-

13 In one case, a district court enjoined the use of multi-mem­
ber districts in the Bossier Parish area for the state legislature, 
and referred to the plan as “gerrymandering in its grossest form.” 
J.S. App. 215a.

35

ity-black district could have been drawn, and yet mem­
bers of the Police Jury told the public that no such dis­
trict could be drawn. Id. at 146a-147a, 154a-155a, 161a- 
162a.14

With respect to the School Board in particular, even 
after the federal courts ordered the Board to dismantle 
its segregated school system (which survived Broum by 
over a decade), the Board resisted. The Board dis­
regarded a court order to maintain a biracial committee 
to recommend ways to attain and maintain a unitary 
school system. J.S. App. 182a-183a. It also attempted 
to evade the desegregation order by segregating black 
children of personnel at the local Air Force Base and 
implementing an unconstitutional “freedom of choice” 
plan. The Board has reduced the percentage of the 
black teachers in the school district by a third (to less 
than 10% from 14% of the total), and has disproportion­
ately assigned those teachers to schools with mostly 
black students. Schools in the Parish have also become 
increasingly segregated by race, despite the Board’s 
affirmative duty to desegregate; in 1993-1994, four of 
the 16 regular elementary schools had predominantly 
black enrollment and five had student enrollments that 
were more than 80% white. Id. at 216a-218a.

This Court found a similar history of official discrimi­
nation, followed by resistance to improvement in the

14 The Police Jury plan in fact fragments well-established black 
communities bordering on the town of Benton and within Bossier 
City. J.A. 154-156. Further, some of the districts in the Police 
Jury plan are not compact, J.S. App. 191a; that plan also required 
the splitting of existing precincts, and was not the plan before the 
Police Jury with the fewest precinct splits. Id. at 167a-168a. The 
plan also departs from Louisiana law in that it lacks contiguity at 
one point and its population deviation exceeds plus or minus five 
percent. J.A. 233-235.



36

position of minorities, to be highly probative of dis­
criminatory intent in Rogers, 458 U.S. at 622-626. In 
support of its holding, the Rogers Court cited such evi­
dence as past voting discrimination, which contributed 
to low black voter registration, and a racially segre­
gated school system. Id. at 625. The Court stressed 
that historical evidence of discrimination is particularly 
relevant when “the evidence shows that discriminatory 
practices were commonly utilized, that they were aban­
doned when enjoined by courts or made illegal by civil 
rights legislation, and that they were replaced by laws 
and practices which, though neutral on their face, serve 
to maintain the status quo.” Ibid. That is the case here. 
Even the district court acknowledged that the Board 
had shown a “tenacious determination to maintain the 
status quo.” J.S. App. 7a.

b. Sequence Of Events Leading Up To The Decision. 
Especially probative in this case is the sequence of 
events leading up to the Board’s adoption of the Police 
Jury plan for its own purposes. That course of events 
convincingly demonstrates that, absent an intent to still 
black voters’ efforts to obtain representation on the 
Board, appellee would not have adopted the Police Jury 
plan. When the Board first met with its cartographer 
(Gary Joiner) in May 1991, no one suggested adopting 
the plan that the Police Jury had just adopted, which is 
not surprising, since the Police Jury plan was unsuit­
able for the Board’s priorities in districting-namely 
school locations and incumbency protection. J.S. App. 
151a, 171a, 181a, 191a. At the May 1991 meeting, Joiner 
estimated that preparing a redistricting plan would 
take him 200-250 hours, id. at 173a, far longer than 
would be necessary to recycle the Police Jury plan.

When the Board met again with Joiner in September 
1991, Joiner provided the Board with precinct maps be­

37

cause, he explained, the Board would need to work with 
the Police Jury to alter precinct lines for its own plan 
(which would have been unnecessary if the Board had 
intended to adopt the Police Jury plan). J.S. App. 174a. 
At that meeting, Board Member Myrick—who stood to 
benefit from the Police Jury plan because his district, 
which contained the largest concentration of black vot­
ers under the preexisting plan, would remain majority- 
white—suggested adopting that plan. The Board did 
not take that course. As appellee observed below, 
Board members “in redistricting fight savagely to keep 
their pet schools in their new districts,” C.A. No. 94- 
1495 Appellee Br. 6 n.2 (filed Oct. 23,1997), and “[sjome 
of the [Board] members were unhappy with the Police 
Jury plan because their pet schools were situated out­
side their new districts,” id. at 10-11.

Over the following year, Board members met pri­
vately with Joiner to discuss various redistricting sce­
narios. J.S. App. 125a-126a, 176a. Despite requests 
from the local branch of the NAACP to be included in 
the redistricting process, the Board gave no notice of 
such private meetings. Id. at 176a. Frustrated at the 
Board’s unresponsiveness, the NAACP developed a 
plan showing two majority-black districts. Id. at 177a. 
After being told by Joiner that any proposed plan must 
include all 12 election districts, the NAACP presented 
such a plan with two majority-black districts on Sep­
tember 3, 1992. J.A. 175-176; J.S. App. 177a-178a.

Only then did the Board become roused to action. On 
September 17, 1992, “without any further consultation 
with its cartographer or attempt to address the con­
cerns of the black community, the School Board passed 
a motion of intent to adopt the Police Jury plan, which 
had no majority-black districts.” J.S. App. 127a. The 
Board found new favor in the Police Jury plan, even



38

though it pitted two pairs of Board incumbents against 
each other and did not allocate schools among the dis­
tricts to Board members’ satisfaction, in direct contra­
diction of the Board’s traditional districting priorities. 
The Board adopted the Police Jury plan at its next 
meeting, even after a public hearing attended by an 
overflow crowd, at which not a single person spoke in 
favor of the plan. Ibid. As Judge Kessler observed, 
“[t]he fact that the Board adopted a plan which departs 
substantively from its earlier districting plans and 
which ignores factors it has usually considered of 
paramount concern, is probative of discriminatory pur­
pose.” Id. at 129a. Even the majority agreed that 
“[ejvidence in the record tending to establish that the 
board departed from its normal practices * * * estab­
lishes rather clearly that the board did not welcome im­
provement in the position of racial minorities with re­
spect to their effective exercise of the electoral fran­
chise.” Id. at 7a.15

c. Dilutive Impact Of The Plan. The record com­
piled in the district court amply establishes that the 
1992 plan had a particularly adverse impact on black 
voters. In fact, appellee conceded on remand that “the

15 Both this Court and Congress have found such departures to 
be highly probative of discriminatory intent. See Arlington 
Heights, 429 U.S. at 267 (explaining that departures from substan­
tive considerations are relevant “particularly if the factors usually 
considered important by the decisionmaker strongly favor a deci­
sion contrary to the one reached,” and suggesting that, if in that 
case, the town had switched zoning classifications only when “[it] 
learned of [the developerfs plans to erect integrated housing,” that 
would have presented a “far different case”); S. Rep. No. 417, su­
pra, at 10 (explaining that preclearance remedy continued to be 
necessary because jurisdictions were “depart[ing] from past prac­
tice as minority voting strength reaches new levels”).

39

School plan did dilute black voting strength.” C.A. No. 
94-1495 Appellee Br. 21 (filed Oct. 23,1997). The record 
corroborates that concession. Under Thornburg v. 
Gingles, supra, three factors are particularly relevant 
to establishing vote dilution: (1) the racial minority 
group must be sufficiently large and geographically 
compact to constitute a majority in a single-member 
district; (2) the group must be politically cohesive; and 
(3) the white majority must vote sufficiently as a bloc to 
usually defeat the minority’s preferred candidate. 478 
U.S. at 50-51. The record, including the parties’ 
stipulations, established each part of the Gingles test. 
J.S. App. 154a-155a, 192a-194a, 196a-207a.

First, in 1990, black persons comprised 20.1% of the 
total population of Bossier Parish, and 17.6% of the 
voting age population. J.S. App. 145a-146a. The black 
population of the Parish is concentrated in two areas: 
more than 50% of it lives in Bossier City, and the re­
maining black residents are concentrated in four iden­
tifiable populated areas in the northern rural portion of 
the Parish. Id. at 146a-147a. Contiguous, reasonably 
compact majority-black districts can be drawn in those 
areas using traditional redistricting features. Id. at 
154a-155a, 192a-194a.16

Second, the history of elections in the Parish showed 
both the black community’s political cohesion and ra-

16 The record also shows that Board members were well aware 
of facts establishing the potentially dilutive impact of the plan. 
Board members knew where the black population of the Parish 
lived; some of them explained the increasing racial segregation in 
the Parish’s schools on the ground that predominantly black 
schools were located in predominantly black neighborhoods. J.A. 
94-100, 104, 109-110, 113-124; see also J.S. App. 154a-156a (stipula­
tion that it was “obvious” that majority-black district could have 
been drawn in Bossier City).



40

dally polarized voting, resulting in a pattern in which 
the majority, white voters, prevented the election of 
the black community’s representatives to the Board. 
The presence of racially polarized voting was recog­
nized in the community and among elected officials. See 
J.A. 70-71, 130, 132, 134, (testimony by Board Member 
Jerome Blunt, Police Juror Jerome Darby, Bossier City 
Councilmember Jeff Darby, and recognition in local 
press); J.S. App. 201a (Police Juror Burford’s estima­
tion that 80% of black and white voters chose candi­
dates of their own race; stipulation that, “[t]o some ex­
tent, voting patterns in Bossier Parish are affected by 
racial preferences”). Before 1992, black candidates had 
run for the School Board on at least four occasions, but 
none had been elected. Id. at 195a-196a. Further, with 
few exceptions owing to unusual circumstances, black 
voters had also been unable to elect candidates of their 
choice to other political positions in the Parish. Id. at 
196a-201a. Statistical analysis of elections in which 
black candidates ran against white candidates disclosed 
that many were affected by racial bloc voting, id. at 
202a-207a, and that “African American voters are likely 
to have a realistic opportunity to elect candidates of 
their choice * * * only in districts in which they 
constitute a majority of the voting age population.” J.A. 
174. Indeed, where black persons comprise 20% of the 
population, “it is sensible to expect” that at least some 
black representatives would have been elected to one of 
the Board’s 12 single-member districts before the 1992 
redistricting plan was adopted, and “the fact that none 
[had] ever been elected” is important evidence of pur­
poseful discrimination. Rogers, 458 U.S. at 623-624.

d. Contemporaneous Statements. Finally, contem­
porary statements by members of the Board support a 
finding of discriminatory intent. Member Henry Burns

41

told one witness who testified at trial that, although he 
personally favored “having black representation on the 
board, other school board members oppose[d] the idea.” 
J.S. App. 83a n.4. Member Barry Musgrove told appel­
lant Price that “the Board was ‘hostile’ toward the idea 
of a black majority district.” Ibid. Tom Myrick also 
told two of the intervenors, after a meeting at which 
black community representatives had raised concerns 
about unequal funding for computer purchases at pre­
dominantly black schools, that “we [the African Ameri­
cans] were always trying to take his seat and * * * he 
was not going to let us take it away from him.” J.A. 
212; see J.A. 182-183; J.S. App. 83a n.4. “[C]onsidered 
in the context of the School Board’s discriminatory 
past, * * * th[ose] statements add further proof of 
improper motive,” and “it seems fair to conclude that at 
least some School Board Members were openly ‘hostile’ 
to black representation on the school board.” Id. at 
133a.

In sum, applying Arlington Heights to the record 
permits only one conclusion: when the Board adopted 
the Police Jury plan as its own redistricting plan, it 
acted with the unconstitutional, racially discriminatory 
purpose to deny black voters a fair opportunity to elect 
candidates of their choice to the School Board.

2. To The Extent The District Court May Have 
Ruled That The Board Acted Without A Dis­
criminatory Purpose, That Conclusion Cannot 
Be Sustained

a. Despite the impressive evidence showing that the 
Board acted with discriminatory intent in adopting its 
redistricting plan, appellee argues (Mot. to Aff. 15) that 
the district court actually found that the plan was free 
even of a discriminatory, but nonretrogressive purpose. 
That argument is based on two cursory sentences in the



42

district court’s opinion on remand.17 While the meaning 
of those sentences is decidedly uncertain, they are best 
read only as stating that the court would not decide 
whether appellee acted with a discriminatory intent, 
not that it decided that appellee had acted without a 
discriminatory intent. Indeed, just after those sen­
tences, the lower court proceeded to explain that “[t]he 
question we will answer, accordingly, is whether the 
record disproves [appellee’s] retrogressive intent in 
adopting the [Police] Jury plan.” J.S. App. 4a.

Moreover, to the extent the district court’s opinion 
might be read as concluding that appellee had acted 
without any discriminatory intent, that conclusion can­
not be sustained on appeal. This Court has admonished 
that “[d]etermining whether invidious discriminatory 
purpose was a motivating factor demands a sensitive 
inquiry into such circumstantial and direct evidence of 
intent as may be available,” Arlington Heights, 429 U.S. 
at 266, and has set forth a framework for analyzing evi­
dence of discriminatory intent, id. at 266-268; J.S. App. 
48a-49a. The district court’s comment about the exis­
tence vel non of a discriminatory purpose, however, 
was unaccompanied by any discussion of the Arlington 
Heights framework or any analysis of the evidence un­
der it. As Judge Kessler pointed out, the majority dis­
cussed the Arlington Heights factors “only for the

17 Specifically: “We are not certain whether or not we have 
been invited to answer the question the Court left for another day 
[i.e., whether a discriminatory but nonretrogressive purpose bars 
preclearance under Section 5], but we decline to do so in this case, 
because the record will not support a conclusion that extends be­
yond the presence or absence of retrogressive intent. We can 
imagine a set of facts that would establish a ‘non-retrogressive, but 
nevertheless discriminatory purpose,’ but those imagined facts are 
not present here.” J.S. App. 3a-4a.

43

purpose of finding evidence of retrogressive intent.” 
J.S. App. 24a (emphasis added). Thus, even when the 
majority did apply the Arlington Heights factors, it 
followed its findings establishing that the Board did not 
want blacks in the Parish to improve their voting 
strength with a statement that such evidence did not 
show intent to retrogress. See pp. 12-14, supra; J.S. 
App. 5a-8a. Because the lower court failed to apply the 
Arlington Heights factors to the broader question of 
discriminatory but nonretrogressive intent, any finding 
that it may have made on that point is not entitled to 
deference under the “clearly erroneous” rule of Federal 
Rule of Civil Procedure 52(a). See Schneiderman v. 
United States, 320 U.S. 118,129-130 (1943) (declining to 
follow district court’s findings because they were “but 
the most general conclusions of ultimate fact,” and it 
was “impossible to tell from them upon what underlying 
facts the court relied, and whether proper statutory 
standards were observed”).18

Furthermore, any conclusion that appellee’s adoption 
of the plan was free of a discriminatory purpose would 
be manifestly contrary to the weight of the evidence, as 
well as the district court’s own findings. The court 
readily acknowledged that appellee was motivated by a 
“tenacious determination to maintain the status quo.”

18 See also Sanchez v. Colorado, 97 F.3d 1303, 1316 (10th Cir. 
1996) (“Broad and general findings, not explicitly tethered to any 
particular testimony—especially in the [Voting Rights Act] con­
text which demands penetrating case by case, fact bound analy­
sis—simply do not provide the foundation for proper appellate re­
view.”), cert, denied, 520 U.S. 1229 (1997); Westwego Citizens for 
Better Gov’t v. City of Westwego, 872 F.2d 1201, 1203-1204 (5th Cir. 
1989) (district court’s findings “manifestly inadequate” because 
they were “stated in eonclusory fashion, with virtually no refer­
ence to the evidence presented at trial”).



44

J.S. App. 7a. It also accepted that the record “estab­
lishes rather clearly that the board did not welcome im­
provement in the position of racial minorities with re­
spect to their effective exercise of the electoral fran­
chise.” Ibid. The lower court’s previous decision in this 
case also recognized that the Board had initially 
disliked the Police Jury plan for valid reasons, and that 
it turned to that plan only after the redistricting 
process “began to cause agitation within the black 
community.” Id. at 106a. Thus, while the district court 
characterized the 1992 plan as a “close port” available in 
a “storm,” ibid., the “storm” was actually the Board’s 
realization that the black community was seeking 
improvement in its political position, something the 
Board was determined to oppose.19 That determination 
to maintain a status quo that diluted the voting 
strength and minimized the political effectiveness of 
blacks in Bossier Parish is a discriminatory purpose in 
violation of the Constitution. See Rogers, 458 U.S. at 
617.

b. In rejecting a finding of retrogressive intent, the 
district court suggested that appellee had advanced two

19 Indeed, it is difficult to see how adoption of the Police Jury 
plan could be justified as helping appellee avoid controversy. To 
the contrary, the facts show that adoption of that plan only exacer­
bated controversy. On September 17, 1992, the Board informed 
the public that it passed a motion of intent to adopt the Police Jury 
plan. On September 24, 1992, the black community protested the 
adoption of that plan, and the NAACP presented a petition with 
signatures of 500 people opposing the plan’s adoption. On October 
1, 1992, without considering alternative ways to draw a plan with 
even one majority-black district, the Board nonetheless approved 
the plan. J.S. App. 179a-181a. The “storm” that the Board was 
seeking to avoid was not an abstract controversy about redistrict­
ing, but rather increasing assertiveness by blacks in Bossier Parish 
about their voting rights.

45

“legitimate, non-discriminatory” explanations for 
choosing the Police Jury plan rather than the NAACP 
plan—“guaranteed preclearance” by the Attorney 
General and “easy implementation” (because no pre­
cinct lines would need redrawing under the Police Jury 
plan). J.S. App. 5a, 106a. The court’s statement that 
those justifications were “legitimate” and “non- 
discriminatory,” however, was predicated on its erro­
neous truncation of its legal analysis to the issue of ret­
rogressive intent, and therefore is not entitled to defer­
ence on appeal. See Bose Corp. v. Consumers Union of 
United States, Inc., 466 U.S. 485, 501 (1984) (“Rule 52(a) 
does not inhibit an appellate court’s power to correct 
* * * a finding of fact that is predicated on a mis­
understanding of the governing rule of law.”). The re­
cord clearly demonstrates, moreover, that the proffered 
justifications were pretextual.

Appellee’s hope for “guaranteed preclearance” of the 
1992 plan is plainly insufficient, for once an alternative 
plan with majority-black districts was presented to it, 
the Board could not reasonably have believed that a 
plan which ameliorated the existing vote dilution would 
be less likely to receive preclearance than the Police 
Jury plan. The record also shows that guaranteed pre­
clearance did not in fact induce the Board to adopt the 
Police Jury plan. Since the plan was precleared for 
Police Jury elections on July 29, 1991, the Board could 
have adopted it when it was first proposed on Septem­
ber 5, 1991, or anytime over the next year, yet it con­
tinued the process of developing another plan for more 
than a year. See pp. 6-8, supra. On the other hand, the 
Board had important reasons to enact a different plan, 
for the Police Jury plan did not protect the incumben­
cies of four Board members and was not drawn with 
school locations in mind. See pp. 6-7, supra.



46

Concerns over splitting precincts also did not moti­
vate the Board to adopt the Police Jury plan. There is 
no evidence that the Board was concerned about pre­
serving precincts before the black community began to 
request that a majority-black district be drawn. In fact, 
the Board had anticipated splitting precincts from the 
beginning of its redistricting process, in order to adopt 
a plan different from the Police Jury plan that would 
best serve its legitimate objectives (including pre­
serving the seats of incumbents, a goal that was later 
sacrificed in the 1992 plan). J.S. App. 174a. The parties 
also stipulated that school boards may request that the 
Police Jury realign the Parish’s precincts— a process 
that is both legal and common in Louisiana. Id. at 151a. 
But when the NAACP presented its plan with two 
majority-black districts, Joiner and the Bossier Parish 
district attorney asserted (contrary to their knowledge 
of state law) that the NAACP plan could not be consid­
ered because its district lines crossed existing precinct 
lines, and therefore, would violate state law. Id. at 
179a.

Finally, even if the district court were correct that 
the Board’s proffered reasons for its adoption of the 
1992 plan were not pretextual, the court’s decision to 
preclear the plan would still be erroneous as a matter of 
law, because the record and the court’s own findings 
make clear that the Board also acted with a discrimina­
tory intent in adopting the 1992 plan. A jurisdiction 
seeking preclearance of a voting change has the burden 
of proving the absence of discriminatory purpose on its 
part. City of Pleasant Grove, 479 U.S. at 469. Because 
the presence of a discriminatory purpose requires de­
nial of preclearance, a jurisdiction’s election plan is not 
entitled to preclearance if a discriminatory purpose sig­
nificantly contributed to the adoption of the plan. The

47

fact that the jurisdiction may have had some legitimate 
reason for enacting the plan does not permit the court 
to ignore its discriminatory motivation in doing so. Cf. 
42 U.S.C. 2000e-2(m) (Title VII is violated when race 
“was a motivating factor for any employment practice, 
even though other factors also motivated the practice”).

CONCLUSION
The judgment of the district court should be 

reversed.
Respectfully submitted.

Seth P. Waxman 
Solicitor General 

Bill Lann Lee 
Acting Assistant Attorney 

General
Barbara D. Underwood 

Deputy Solicitor General 
Paul R.Q. Wolfson

Assistant to the Solicitor ' 
General

Mark L. Gross 
Louis E. Peraertz 

Attorneys
March 1999



APPENDIX

1. The Fourteenth Amendment to the United States 
Constitution provides, in pertinent part:

SECTION 1. * * * No State shall * * * deny to 
any person within its jurisdiction the equal 
protection of the laws.

*  *  *  *  *

SECTION 5. The Congress shall have power to 
enforce, by appropriate legislation, the provisions of 
this article.

2. The Fifteenth Amendment to the United States 
Constitution provides:

SECTION 1. The right of citizens of the United 
States to vote shall not be denied or abridged by 
the United States or by any State on account of 
race, color, or previous condition of servitude.

SECTION 2. The Congress shall have power to 
enforce this article by appropriate legislation.

3. Section 5 of the Voting Rights Act of 1965, 42 
U.S.C. 1973c, provides in pertinent part:

Whenever a State or political subdivision with 
respect to which the prohibitions set forth in section 
1973b(a) of this title based upon determinations 
made under the first sentence of section 1973b(b) of 
this title are in effect shall enact or seek to adminis­
ter any voting qualification or prerequisite to vot­
ing, or standard, practice, or procedure with respect 
to voting different from that in force or effect on 
November 1, 1964, * * * such State or subdivision 
may institute an action in the United States District 
Court for the District of Columbia for a declaratory

(la)



2a

judgment that such qualification, prerequisite, stan­
dard, practice, or procedure does not have the pur­
pose and will not have the effect of denying or 
abridging the right to vote on account of race or 
color, or in contravention of the guarantees set forth 
in section 1973b(f)(2) of this title, and unless and 
until the court enters such judgment no person shall 
be denied the right to vote for failure to comply with 
such qualification, prerequisite, standard, practice, 
or procedure; Provided, That such qualification, 
prerequisite, standard, practice, or procedure may 
be enforced without such proceeding if the qualifica­
tion, prerequisite, standard, practice, or procedure 
has been submitted by the chief legal officer or 
other appropriate official of such State or subdivi­
sion to the Attorney General and the Attorney 
General has not interposed an objection within sixty 
days after such submission, or upon good cause 
shown, to facilitate an expedited approval within 
sixty days after such submission, the Attorney Gen­
eral has affirmatively indicated that such objection 
will not be made.

*  *  *  *  *