Plaintiffs' Proposed Conclusions of Law

    UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA 

BARBARA MAJOR, ET AL., CIVIL ACTION NO. 82-1192 

Plaintiffs, 

VERSUS SECTION (C) 

DAVID C. TREEN, ET AlL. THREE JUDGE COURT CASE 
CLASS ACTION 
  

  

PLAINTIFFS' PROPOSED CONCLUSIONS OF LAW 
  

l. The Court has jurisdiction of the parties and of 

the subject matter pursuant to 28 U.S.C. §§ 1331 and 1343 and 

42 U.S.C. § 1973j, to redress the deprivation of plaintiffs’ 

rights secured by the Thirteenth, Fourteenth and Fifteenth 

Amendments to the United States Constitution and 42 U.S.C. §§ 

1973, 1981 and 1983, 

2. This action has been certified as a class action 

under Rule 23(b)(2) of the Federal Rules of Civil Procedure; 

plaintiffs are black registered voters representing all black 

persons who are residents and registered voters of the State 

of Louisiana. 

3. The plaintiffs have shown that Act 20 of 1981 

dilutes, minimizes and cancels out black voting strength in 

congressional districts in the New Orleans metropolitan area, 

and thus denies to black citizens and black voters of the 

New Orleans metropolitan area the right meaningfully to 

participate in the election process for representatives to    



    

the United States House and to elect candidates of their 

choices, and precludes the election of black representation 

in the United States Congress from the State of Louisiana, in 

violation of the rights of plaintiffs and members of the 

plaintiff class secured by the Thirteenth, Fourteenth and 

Fifteenth Amendments to the United States Constitution and 42 

U.8.C. 88 1971, 1973, 1981 and 1983. 

4. Plaintiffs have shown that Act 20 is a racially 

discriminatory delineation of boundary lines for Congressional 

districts. They have met their burden of proof under the 

Fourteenth and Fifteenth Amendments that this gerrymander was 

intentional. They have presented direct and/or circumstantial 

evidence that is sufficient to establish a claim of racially 

discriminatory dilution, cognizable under the Fourteenth and 

Fifteenth Amendments. Perkins v. City of West Helena, Ark., 
  

675 F.2d 201 (8th Cir, 1982), aff'd mem. U.8. .. 11982}; 

Rogers v. Lodge, U.S. +. 102 8.Ct. 3272, 73 L..B4d.24 
  

1012 (1982). 

5. In determining that a discriminatory purpose existed 

in the enactment of Act 20, this Court has considered the 

totality of circumstances and finds that Act 20 was enacted 

to accord members of plaintiff class less opportunity than 

other voters to participate meaningfully in the political 

process and elect legislators of their choice. 

6. Evidence of historical racial discrimination with 

regard to voting is relevant to the question of defendant's    



    

intent because it affects the plaintiff class's present oppor- 

tunity to participate effectively in the electoral process. 

7. Defendants have failed to rebut plaintiffs' evidence 

and have not shown that Act 20 was enacted exclusively for 

non racial reasons; rather the evidence was sufficient to 

establish that Act 20 was unconstitutionally enacted at least 

in part for the discriminatory purpose of limiting the oppor- 

tunity of blacks to participate meaningfully or effectively 

in the political process and to elect legislators of their 

choice. 

2. Section 2 of the Voting Rights Act applies to 

claims of discriminatory redistricting. Congress intended 

the Voting Rights Act to be a broad charter against all systems 

and practices that diminish black voting strength. In fact, 

the discriminatory potential of redistricting schemes was one 

of the prime concerns of Congress in enacting and extending 

the Voting Rights Act of 1965. S. Rep. No. 94-295, 94th 

Cong., lst Sess. 16-17 (1975); 8S. Rep. No. 97-417, 97th Cong. 

24 Sess, 6, 30 n,120, 12: n.31, 

Bs The Court finds that defendants have violated 

Section 2 of the Voting Rights Act. Proof of a purposeful 

discriminatory redistricting scheme by direct or circumstantial 

evidence is sufficient to establish a violation of Section 2. 

10. Proof of a purposefully discriminatory redistric- 

ting scheme, however, is not essential for plaintiffs to    



    

prevail under Section 2 as amended June 29, 1982. The 

amendments to Section 2, which apply to this case, enable 

plaintiffs to establish a statutory violation upon showing 

only that the plan has a discriminatory result. Plaintiffs 

have shown that Act 20 does result in discriminatory vote 

dilution. Based on the totality of circumstances surrounding 

the history of discrimination in Louisiana, the lingering 

effects of that history, the existence of racial polarization 

in the electorate, the existence of other barriers to full 

participation by black voters including the state majority 

vote requirement and the depressed socio-economic condition 

of black citizens in Louisiana in general and the New Orleans 

metropolitan area in particular, this Court concludes that 

Act 20 has a discriminatory result that is impermissible 

under Section 2 of the Voting Rights Act as amended. This 

Court need not reach, therefore, the question whether Act 20 

was an intentional gerrymander. 

11. In order to show that Act 20 has a discriminatory 

result in violation of Section 2 as amended, plaintiffs need 

only prove that Act 20 submerges the voting strength of black 

voters in the New Orleans metropolitan area. Plaintiffs have 

met their burden of proving this result by demonstrating the 

dilutive effect of Act 20 in the context of the existence of 

a racially polarized electorate. 

12. Moreover, Act No. 20 violates Section 2 of the 

Voting Rights Act of 1965, as amended, June 29, 1982, because    



    

it perpetuates, and fails to remedy, the present effects of 

the pre-existing purposeful and intentional denial to blacks 

in Louisiana of equal access to and participation in the 

political process. 

13. Act No. 20 is unconstitutional and violates the 

Thirteenth, Fourteenth and Fifteenth Amendment guarantees 

because it perpetuates, and fails to remedy, the present 

effects of historical and official discrimination against 

blacks in Louisiana. Kirksey v. Board of Supervisors of 
  

Hinds County, 354 F.2d 139 (5th Cir. 1977) (en banc), cert,   
  

denied, 434 U.S. 968 (1977). On this record, the Court has 

"not merely the power but the duty to render a decree which 

will as far as possible eliminate the discriminatory effects 

of the past as well as bar like discrimination in the future." 

Louisiana v, United States, 380 U.S. 145, 154 (1965). 
  

14, Defendants erroneously rely on the decision by the 

Department of Justice to preclear Act 20 when it was submitted 

for review pursuant to Section 5 of the Voting Rights Act. 

The fact that the Assistant Attorney General, United States 

Department of Justice sent a letter of no objection regarding 

Act 20 is irrelevant to this case. The standard of review 

under Section 5 is different than the standard of review that 

this Court must follow. Moreover, the review of Act 20 by 

the Assistant Attorney General was unreliable, highly irregular 

and conducted under circumstances that do not indicate trust-    



    

worthiness. The section 5 review was conducted ex parte as a 

nonadversary proceeding from which plaintiffs were, at key 

points, excluded. The decision of the Assistant Attorney 

General not to object to Act 20 was inconsistent with the 

investigation, factual findings and recommendations of the 

staff experts and was made for partisan and personal reasons 

that were contrary to the purposes of the statute and the 

regulations of the Department. The preclearance decision is 

entitled to no weight whatsoever. 

15. This Court holds that the State of Louisiana has 

an affirmative duty to draw Congressional districts that 

fairly recognize the voting strength of the minority community. 

See In Re: Illinois Congressional Districts Reapportionment 
  

Cages, No. 81 C 3915, slip. op. (N.D. 111. 1981), aff'd. sub. 

Nom. Rvan v. Otte, 102 S.Ct. 985 (1982): Rybicki v. State of 
    

Board of Elections, No. 81 €C 6030 (N.D. Ill. Jan. 12, 1982).   

16. In granting relief from unlawful discriminatory 

governmental action, it is the Court's duty not only to prohibit 

the continuation of discriminatory actions and require develop- 

ment of non-discriminatory procedures, but also to grant 

effective affirmative relief from the present effects of past 

discrimination. 

17: Appropriate measures of race-conscious affirmative 

injunctive relief from the effects of unlawful discrimination 

offend neither the United States Constitution nor the Voting    



Rights Act. Indeed, race-conscious remedies may, and in some 

instances must, be imposed under the Voting Rights Act, 

§§1981 and 1983, and the Thirteenth, Fourteenth and Fifteenth 

Amendments to eradicate the effects of official discrimina- 

tory policies and practices. See, United Jewish Organizations 
  

Vv. Carey, 430 U.S. 149 (1977); NAACP v. Allen, 493 F.2d 614, 
  

617-21 (3th Cir. 1974). 

18. Section 2 of the Voting Rights Act of 1965, as 

amended, requires this Court to order whatever relief is 

necessary to remedy completely the discriminatory results of 

Act No. 20 and to recognize the voting strength of blacks in 

the New Orleans metropolitan area. 

19. The plaintiffs are entitled to an award of costs, 

necessary expenses of the litigation, and reasonable attorney's 

fees, as provided by 42 U.S.C. §§1973 1l(e) and 1988. 

Respectfully submitted, 

R. JAMES KELLOGG 

WILLIAM P. QUIGLEY 

STEVEN SCHECKMAN 

STANLEY A. HALPIN 

631 St. Charles Avenue 

New Orleans, Louisiana 70130 

LANI GUINIER 

10 Columbus Circle 

Suite 2030 
New York, New York 10019 

  

Attorneys for Plaintiffs        



    

CERTIFICATE OF SERVICE 
  

I certify that a copy of the foregoing document has been 

served upon counsel for all parties to this proceeding, by 

mailing the same to each by first class United States Mail, 

properly addressed and postage prepaid, on this lst day of 

March, 1983, 

  

ATTORNEY FOR PLAINTIFFS